Prison Break. Correctional Liability Update February What Peace Officers Should Know About Internal Investigations By Susan E.

Transcription

1 Prison Break Correctional Liability Update February 2012 What Peace Officers Should Know About Internal Investigations By Susan E. Coleman Burke, Williams & Sorensen, LLP offers the expertise, depth, breadth, and quality service you need in the area of Correctional Litigation through the specialized knowledge of our featured attorneys. Susan E. Coleman is a partner at the law firm of Burke, Williams & Sorensen, where she specializes in law enforcement defense, including correctional litigation. Ms. Coleman has over 16 years of litigation experience. She is an associate of the American Board of Trial Advocates (ABOTA) with over 20 civil jury trials throughout California. scoleman@bwslaw.com direct: More often these days, inmates allegations of misconduct whether raised in a grievance or a letter to the Warden, Inspector General, or the Office of Internal Affairs, are being investigated. Witnesses are interviewed, including inmate witnesses, and personnel files are reviewed for any staff who are subjects of the investigation to determine if there have been other similar incidents, and/or other similar allegations. If you work for a jail or prison long enough, chances are that an inmate will make allegations against you. Although this can occur when there is actual misconduct or a violation of policy, it also happens when an inmate doesn t like you holding the line or not giving him extras, when he jumps on the bandwagon after someone else makes allegations, or when he needs a good offense to defend himself from a rules violation or prosecution. So what should you know? Most officers know enough to call their union representative to attend the hearing, but that s not enough. Your union representative will only make objections to protect your rights under the Peace Officer Bill of Rights, but won t advise you on the law or strategy. Making sure you are compensated for an interview conducted on your regular day off, or that you are not asked questions by more than two interrogators, won t help you to avoid disciplinary action, prosecution, or a lawsuit. Even before you get a notice of an IA interview, whether as a witness or a subject, you should clean out your personnel file annually. Letters of Instruction may only be kept in your file for one year; however, the personnel office won t remove the letter for you. You need to check your file periodically, to make sure all of the items that can be purged expired letters of instruction, letters of reprimand, disciplinary action that s been overturned are actually removed. This clean up process will also avoid these items from being seen by the judge during a Pitchess hearing, a state court hearing used in criminal and civil state cases when a peace officer s files are requested. It will also avoid the items being used against you in an investigation. At an IA hearing, you are given a Lybarger admonition, which advises you that if you don t wish to make a voluntary statement, you will be ordered to make a statement or be subject to disciplinary action. Statements made under duress after the Lybarger admonition may not be used against you in criminal court. However, statements made at an IA hearing are recorded and may be used against you in a civil case. For this reason, it is important that you think carefully about your statements. Ironically, internal affairs investigators are allowed to lie to you, as a legally approved interrogation technique to obtain the truth, so make sure that your answers rely on your independent memory and are not the result of coercion or misstatements by the investigator. February 2012 Prison Break Page 1

2 Burke's Correctional Litigation Team routinely deals with the following issues: First Amendment Fourth Amendment claims of unlawful search and seizure Eighth Amendment excessive force and deliberate indifference to safety or medical needs Fourteenth Amendment due process Religious claims under the First Amendment and RLUIPA Section 1983 claims Torts including negligence, wrongful death, assault and battery, conversion Class action litigation Parole and probation issues If you are the subject of the investigation, keep in mind that investigators interview all of the witnesses first, and have reviewed all of the videotape and/or evidence already, so they have a pretty good idea of what they can prove and what their theory is before they talk to you. Any questions from an investigator that feign lack of knowledge about a subject, such as how cell extractions are conducted, are designed either to get you talking and make you comfortable, and/or to demonstrate your familiarity with the relevant policies and procedures before the investigator asks you to admit you violated policy. Conversely, even when an investigator says he has a witness that says he or she saw you do something, this may be an interview tactic rather than the truth. If you are interviewed as a witness, but you believe during the interview that you are being targeted and/or that you may become a subject, you are entitled to stop the interview and obtain a union representative before continuing. Similarly, if the investigators think you are becoming a subject, for example after you make an admission of some policy violation, they are required to stop the witness interview and re-notice you for a subject interview. Keep in mind that you are entitled to and should request a copy of your incident report. You have the right to refer to the report anytime during the interrogation. You may repeatedly read your report if needed in order to answer questions that are re-asked in different ways by the investigator. A tactic often used by investigators is to change the verbiage of their questions in order to cause you to vary your response, so they can argue that your inconsistencies reflect dishonesty. A finding of dishonesty carries penalties up to and including termination. Finally, if you did commit serious misconduct that may result in termination and/or prosecution, you may wish to consider resigning or retiring before the administrative investigation interview occurs. Resignation before completion of the investigation will allow you to retain your pension. If you are terminated, such as for dishonesty or excessive use of force, and the adverse action is not overturned on appeal, you will lose the agency-contributed portion of your pension. In this situation, you should also invoke the Fifth Amendment if a criminal investigation is conducted (usually within a few days of the incident) and you are advised of your Miranda rights. While this will not necessarily affect any criminal charges, pleading the Fifth will make prosecutors prove their case without your help. Similarly, if you re interviewed by police from an outside agency and given a Miranda warning, it is almost never advisable to make a statement. Invoke your right to remain silent. For example, if you re arrested for driving under the influence, or if you re a parole agent who is accused of inappropriately touching a parolee s girlfriend while conducting a pre-release residence check, your statements will not help anyone but the police, the District Attorney, and later possibly a civil plaintiff s attorney. Bottom line: Be careful what you say. February 2012 Prison Break Page 2

3 Mitch Wrosch is an associate at Burke. He has four years of specialized experience in correctional litigation, with one civil jury trial. direct: A Kosher Diet For Jesus Garcia? By Mitch Wrosch The Torah, or Old Testament, commands that Jews keep special dietary laws called kashrus. Generally, the laws of kashrus prohibit consumption of certain species of meat and fish (such as pork and shellfish), require separation of various food groups, and provide strict guidelines for the slaughter of animals, among other things. The Torah does not command non-jews to observe kashrus. So what happens when non-jewish inmates demand kosher food? The short answer, according to the California Court of Appeal (Third District) is that they get it. While housed at Mule Creek, Margarito Jesus Garcia filed an application to participate in the prison s Jewish Kosher Diet Program. Margarito, who was born Catholic, had recently subscribed to Messianic Judaism while incarcerated. Messianic Judaism is not a Jewish philosophy; instead, according to the Court s decision, it is the religion of the followers of Jesus (Christians), who desire to recover the Hebrew roots of their faith. One such root, per Margarito, is the maintaining of a kosher diet. Mararito s request was denied by Mule Creek s rabbi, on the basis that Margarito does not practice Judaism. Margarito then exhausted his administrative remedies, and filed a petition for writ of habeas corpus in superior court, which was denied. Undeterred, he filed a petition for writ of habeas corpus in the Third Appellate District, alleging, among other things, that his rights under the Religious Land Use and Institutionalized Persons Act ( RLUIPA ), were being violated. RLUIPA provides in part: No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution unless the government demonstrates that imposition of the burden on that person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. In response to Margarito s petition, the California Department of Corrections submitted testimony from the Departmental Food Administrator, and from Mule Creek s Assistant Correctional Food Manager, regarding the infeasibility of providing kosher food to non-jewish inmates. The Departmental Food Manager identified the various food programs available to inmates: (1) a Pork-Free Meal Program; (2) a Vegetarian Meal Program; (3) a Religious Meat Alternative Program ( Halal ); and (4) the Jewish Kosher Diet Program. Only the kosher diet requires certification by a rabbi, separate utensils, dishes, special storage, and assembly in a special kitchen by trained staff. According to the Food Manager, there are 684 participants in the Kosher Jewish Diet Program throughout the CDCR. The Food Manager also testified that regular meals costs $2.90 per day, $2.62 per day for the vegetarian meals, $3.20 per day for the religious meat alternative, and $7.97 per day for the Jewish Kosher meals. The Food Manager also testified that any increase in the number of participants in the Jewish Kosher meal plan would require more preparation space, storage area, cooks, training and supervision, and equipment. February 2012 Prison Break Page 3

4 At Burke, the broad range of our areas of expertise mirrors California's own vitality, with respected, proven practices in: Education Law Labor & Employment Litigation Public Law Real Estate & Business Law Similarly, Mule Creek s Assistant Correctional Food Manager testified that the Jewish Kosher Diet Program runs smoothly because of the small number of participating inmates (43 of 3,600), and any increase would lead to staffing, training, and supervision problems. Moreover, he testified that kosher food is desired by non-jewish inmates because it is perceived as better, and offers items not generally available to inmates such as honey and whole fruit and vegetables. The special items are frequently stolen, bartered, or sold as contraband, and the problem would only get worse with greater participation in the program. Shockingly, the Court was not convinced. In granting Margarito s writ, the Court held that respondent [CDCR] does not argue the rejection of petitioner s request to participate in the Jewish Kosher Diet Program furthers a compelling governmental interest and is the least restrictive means of doing so, as required by RLUIPA. This decision appears to be incorrect, in light of the testimony provided by the Food Managers. The concerns about cost, space, and training articulated by these individuals was compelling enough to prevent non-jewish inmates from obtaining kosher food. Additionally, the Court seems to have disregarded the testimony of the Assistant Food Manager that the kosher items are often stolen, bartered, or sold as contraband, which creates a security risk that the CDCR has a compelling governmental interest in preventing. Thus, the ruling of the Court is at odds with the United States Supreme Court, which has stated that security is always a compelling governmental interest. However, most troubling is the Court s determination that The issue here is not whether petitioner is a Jew but whether his system of religious beliefs includes maintaining a kosher diet. This statement is a slippery slope, which will pave the way to special self-prescribed diets for non-denominational Christians, Wiccans, Odinists, Pagans, members of the House of Yahweh, and others who have already expressed interest in obtaining kosher food. The Court appears to have held that absent an extremely compelling governmental interest, the prisons must provide kosher diets to non-jewish inmates who argue that their particular religious beliefs require it, even if the religion is not an established one. In the interest of costs and efficiency, the California Department of Corrections should scrap its current menu of alternative meal programs, and provide only the Regular Meal Program and a Kosher Vegan alternative. Because kosher food has the strictest standard, conceivably Muslim inmates and all other inmates with religious dietary requirements would be satisfied by this option. Moreover, it would reduce the costs of providing kosher meat to inmates by eliminating kosher meat altogether. Dietary requirements for nutrition and calories can be met without having meat in the diet. Finally, the vegan alternative would also satisfy the needs of vegans and vegetarians, and would streamline food services. February 2012 Prison Break Page 4

5 Kristina Doan Gruenberg is an associate at Burke. Prior to joining the firm, she served as a judicial law clerk in the District of Columbia, handling civil and criminal cases including many inmate complaints. kgruenberg@bwslaw.com direct: If First You Don't Succeed Sue Again? How to Prevent Inmates from Getting a Second Bite at the Apple By Kristina Doan Gruenberg After an inmate s case is dismissed, it is easy to think that litigation is over. However, many persistent inmates will try to file their complaint again when they are not happy with the outcome of their first case. For example, an inmate who loses in federal court may try to file his case again in state court, or vice-versa. Or an inmate may re-file in the same court, hoping he gets assigned to a different judge. Fortunately, the doctrines of res judicata and collateral estoppel can prevent these attempts to re-litigate cases and get a second bite at the apple. The doctrine of res judicata, which is Latin for a matter judged, bars the re-litigation of claims that were raised or could have been raised in the previous litigation. Although an inmate has the right to appeal a judgment, res judicata prevents the inmate from re-litigating the same case in the same court. Further, because the doctrine of res judicata applies to both state and federal court, inmates are also barred from litigating an issue in one court system, and then litigating the same issue and same defendants in another court system. The three necessary elements to apply res judicata are: (1) an identity of claims, (2) a final judgment on the merits, and (3) privity between parties. Headwaters, Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1052 (9th Cir. 2005). First, identity of claims means that the earlier case arises from the same set of facts. Even if an inmate tries to retool his complaint and assert different legal theories, he cannot do so if it arises from the same incident. For example, an inmate who loses an assault and battery case in state court cannot then pursue a 1983 civil rights complaint against the same officer in federal court for the same alleged use of force. Second, final judgment on the merits is when there is a judgment for substantive, rather than procedural reasons. Examples of judgment on the merits include when a court dismisses a case for failure to state a claim, grants summary judgment, enters judgment after a trial, or issues a default judgment. Conversely, a judgment is generally not on the merits if the court dismisses it for lack of jurisdiction or because the inmate has failed to exhaust administrative remedies. Third, privity between parties means that an inmate is either suing the same defendant, or someone who the defendant is in privity (closely aligned) with. The courts have held that there is privity where two parties are so closely aligned in interest that one is the virtual representative of the other, a claim by or against one will serve to bar the same claim by or against the other. Although this is rarely an issue in prison cases, it may arise in instances where an inmate tries to sue someone like a doctor, and later sues the doctor s insurance company. February 2012 Prison Break Page 5

6 Collateral estoppel is similar to res judicata (and is often confused by lawyers), but precludes issues from being re-litigated, not necessarily claims. The basic idea behind collateral estoppel is that a party cannot re-litigate particular factual or legal issues which were litigated and decided in a prior suit involving that party, regardless of whether the cause of action was the same. One of the most useful ways collateral estoppel can be used in prison litigation cases is when an inmate s first case is dismissed for failure to exhaust administrative remedies. If the inmate re-files the same suit without showing that he has taken any additional steps towards exhaustion, defendants can argue that the inmate is collaterally estopped from re-arguing that he exhausted his administrative remedies, because the court already decided that issue. Understanding when res judicata and collateral estoppel can be raised can be tricky. However, the most important thing is to look and see whether there was prior similar litigation. Therefore, defendants and litigation coordinators should be sure to disclose to defense counsel if there has been a previous case involving the same parties and/or claims or issues, so counsel can determine whether these defenses apply. While there are electronic court dockets in federal court, and in some counties, many inmates have dozens of cases spread out across different state and federal courts, making it difficult and time consuming to ensure there are no duplicate cases. It is also important to let counsel know if there are two similar or identical cases filed at the same time against the same defendant. If the cases are filed in the same court, the cases can be moved in front of the same judge and may potentially be consolidated. If the cases are filed in different courts, it is possible to have one case stayed while the other proceeds, with the results of the first one potentially binding on the other case. These steps help prevent duplicative discovery and save judicial resources. Finally, knowing about duplicative litigation can help deter these inmates in the future. A case dismissed as clearly repetitive can count as a strike against the inmate, if the court finds that the inmate re-filed the case to intentionally harass the defendant. Strikes may lead to the inmate losing his in forma pauperis status and/or being declared a vexatious litigant, which makes it more difficult for the inmate to file complaints. Lastly, courts have imposed sanctions against repetitive filers, including requiring inmates to pay fines, attorney s fees, and/or partial filing fees. February 2012 Prison Break Page 6

7 Martin Kosla is a senior associate who practiced for 4 years in Australia before moving to California in Martin has been defending law enforcement in civil rights cases since He served in the Royal Australian Artillery before becoming an attorney, and has black belts in karate and taekwondo. mkosla@bwslaw.com direct: Frivolous Lawsuits Our Top Ten By Martin Kosla The Prison Litigation Reform Act was enacted, in part, to curtail inmates frivolous lawsuits by imposing requirements such as exhaustion of administrative remedies and judicial screening of complaints. However, despite the PLRA, inmates still file frivolous lawsuits. These cases are typically dismissed at the initial pleading stage. Sometimes they last until a summary judgment motion is filed, but not before the Department has spent thousands of dollars on litigation fees and costs. Here are ten of the more frivolous post- PLRA lawsuits that we have defended: 10. An inmate claimed cruel and unusual punishment because the cows that grazed around the prison caused some very serious problems for [his] nostrils. 9. An inmate sued because he was allegedly being denied access to the prison law library, even though records showed that he had visited the library at least 90 of the last 365 days. 8. An inmate sued prison staff because the mail room accidentally delayed his receipt of one letter from the LAPD, saying that his complaint was being investigated. 7. An inmate sued after prison staff confiscated his shoes which contained heroin, in order to reclaim both the shoes and the handwritten Pay/Owe notes that he had hidden in the shoes, so he could collect from people who owed him drug money. 6, A female inmate filed a petition for writ of habeas because she was denied shampoo with ginger tea, as it was suspected of containing hair dye. 5. An inmate with extra wide feet sued officials because he was denied size 13 shoes to wear in the visiting room. We'd Appreciate Your Feedback! If you would like to see any specific topics addressed in future issues, please let us know. Also, if you know other people who would be interested in reading this newsletter, let us know and we'll add them to the distribution list! Law Offices Throughout California 4. An inmate sentenced to a life term sued for violation of the First Amendment after he was denied delivery of an auto repair manual which he had purchased from an outside vendor for $ An inmate sued for excessive use of force after a correctional officer allegedly threw a roll of toilet paper at the inmate, who was sitting on the toilet loudly yelling for more paper, which caused the inmate to be constipated. 2. An inmate claimed that his whole life in prison was being televised and that prison officials implanted devices in the ears of other inmates so that they could control the inmates around him. 1. An inmate sued a female officer for cruel and unusual punishment after she laughed at another officer s comment on the size of [his] penis during a strip search. 444 South Flower Street Suite 2400 Los Angeles CA February 2012 Prison Break Page 7