Monday, March 29, 2021

Monday blog break

I spent my weekend working on my A-to-Z Blogging Challenge posts, so come back on Thursday for letter A!



Monday, March 22, 2021

Video calls for Deaf persons in prison and civil confinement

Here's a case from January 2021 in the United States Court of Appeals for the Fourth Circuit.  Here's a map of the circuits.

This case is called Heyer v US Bureau of Prisons [BOP] and is an appeal of a case from the Eastern District of North Carolina.

Heyer is civilly committed as a sexually dangerous person.  A civil detainee is someone who has completed his criminal sentence but is still not released into public because of a high likelihood of re-offending.  

Heyer was born deaf and communicates in ASL [American Sign Language].  This case begins with several pages on the Deaf community, communication, and English ability.  It provides a very detailed description of how members of the Deaf community communicate, how "standard English" is generally difficult for them to learn, and that most have an English proficiency level of approximately 6-8 years old.  It ends with the opinion that to a deaf person, a video call, similar to Skype, is the equivalent of a telephone call.

The Bureau of Prisons allowed Heyer to communicate with family and friends by letters, email, personal visits, and TTY, but did not allow Heyer to use video call equipment.  The stated reason is because of the difficulty of preventing Heyer from engaging in prohibited conduct.

Heyer, a civil detainee, is entitled to more considerate treatment and conditions of confinement than a prisoner.  But even if he was a prisoner, the US Supreme Court has provided a test to analyze the conditions of confinement, both of prisoners and civil detainees - “Prison walls do not form a barrier separating prison inmates from the protections of the Constitution.” Turner v. Safley, 482 U.S. 78, 84 (1987).

First, the court found that yes, the prohibition on video calls did infringe on Heyer's constitutional righrs.  Because of that, the restriction must be reasonable and, since Heyer is not serving a criminal sentence, the restriction must also be non-punitive.

Factor One asks whether there is a rational connection between BOP’s ban on video calls and BOP’s legitimate interests, or if that connection is so remote as to render the policy arbitrary or irrational.  The court ruled in favor of BOP on this factor - there is a rational, non-arbitrary connection between the ban on video calls and BOP's interests..

Factor Two asks whether Heyer has alternative means of exercising his First Amendment rights.  Because of the nature of Deaf communication, the court ruled in favor of Heyer here.

Factor Three requires the court to weigh the impact that accommodation of the constitutional right will have on guards, other inmates, and prison resources generally.  The court found in favor of Heyer here.

Factor Four asks Heyer to identify alternatives to a total ban on video calls that would accommodates his rights at minimal cost to BOP’s interests. The court found in favor of Heyer here.

The analysis is lengthy and detailed.  I would encourage you to read the case if you're interested in the Deaf community and communication.

The Court ruled "Heyer’s constitutional rights are not defined merely by his status as a civil detainee or his past conduct. They are also defined by his status as a Deaf individual cut off from his community in a manner more complete than even foreign language prisoners. The evidence at trial established that Heyer lacks any ability to communicate with the Deaf community. And the district court clearly erred by crediting BOP testimony about the risks of [video] calls without considering the wealth of testimony about safety features that have managed those risks for every other form of communication it makes available."

The Court's ruling basically required BOP to allow Heyer to have access to video calls.

Do you agree with the court's conclusion?  Why or why not?

Monday, March 15, 2021

Excessive force

Here's a case from January 2021 in the United States Court of Appeals for the Fourth Circuit.  Here's a map of the circuits.
This case is called Dean v Jones and is an appeal of a case from the Eastern District of North Carolina.

Dean is a prison inmate.  While being escorted back to his cell after a hair cut, he head-butted one of the prison guards.  He alleges that they retaliated against him by spraying him with pepper spray while he was handcuffed and lying on his back.  After they stood him up and began walking with him again, he head-butted a guard again.  This time, the guards shoved him into a closet and multiple guards kicked and punched him while he was on the ground with his hands cuffed behind his back.

Dean sued, alleging excessive force and "cruel and unusual punishment". The Eighth Amendment to the Constitution regarding excessive force requires an analysis of motive. Did the officers used force in good faith to protect officer safety, or did they used force maliciously to punish Dean for his head-butts?

The trial court ruled that no reasonable jury could decide that the officers did anything other than protect their safety.  On appeal of that ruling, the appellate court reversed, stating that once a trial is conducted, a reasonable jury could decide either way.  So the case will proceed to trial.

Do you agree with the court's conclusion?  Why or why not?

Monday, March 8, 2021

A-to-Z Blogging Challenge Theme Reveal

It's A-to-Z time again!  I have participated in the A-to-Z Blogging Challenge since 2015, which makes this year my SEVENTH year!

This blog generally focuses on legal and military topics, but this year for the A-to-Z Challenge, I'll be mixing it up a little.

Are we all glad that 2020 is over?  Well, before we flush it permanently down the toilet, in April I'll be looking at major events that happened in 2020, one for each letter of the alphabet.  Some events will be all-too-familiar to you.  Others will be reminders of Wow, I forgot about that!  And possibly, because the news was full of a certain few topics ad nauseum in 2020, some may even be new to you.

At the end of each day's post, I'll include a teaser for the next day.  Here's the teaser for April 1 - letter A.  Which 2020 event do you think A will be about?

Monday, March 1, 2021

School employees liable for their actions at work

Here's a case from January 2021 in the United States Court of Appeals for the Sixth circuit.  Here's a map of the circuits.
This case is called Meyers v Cincinnati Board of Education and is an appeal of a case from the Southern District of Ohio.

This is a really sad case.  Beginning in the first grade, Gabriel Taye was bullied and assaulted by other students at his elementary school.  The school employees either did not inform the boy's parents about the incidents, or they referred to them as "accidents".  Although Gabriel sometimes reported the incidents to school employees, the bullies were rarely reprimanded.  There is at least one instance where Gabriel fought back in self-defense, and HE was reprimanded by the school.  The school denied the parents' multiple requests to view surveillance footage.

When he was in third grade, and after a particularly violent assault on Gabriel in the bathroom, he was knocked unconscious for seven minutes.  The school sent him home but didn't inform his parents exactly what happened, and Gabriel only remembered that he fell and his stomach hurt.  That night he threw up and his parents took him to the hospital.  Because no one knew that he might have a head injury, he was sent home with "stomach flu" and stayed home the next day.  Upon returning to school the following day, he was again bullied.  He reported the bullying but again nothing was done.  After school that day, he found a necktie and used it to hang himself from the top of his bunk bed.

Gabriel Taye's parents sued the school district and several individual employees for reckless, wanton disregard for the safety of the students, wrongful death, failure to report child abuse, and tampering with evidence [destroying surveillance footage].

During the course of the lawsuit, it was discovered that the school kept a "behavior log" which did include some of these incidents, as well as other incidents directed at other students.  However, the school wanted to "keep its record clean" and kept the behavior log private and never reported anything, even though they were required to do so.

The employee defendants [not the school district] claimed governmental immunity and asked the court to dismiss the case against them [and continue against just the school district]. Basically, they said they were "doing their jobs" and were acting "reasonably", so they should not be liable as individuals, only as employees.  So their employer, the school district, might be responsible but they were not.

Under Ohio law, a public school employee is entitled to immunity for acts within the scope of employment.  They are NOT entitled to immunity for acts outside the scope of their employment, or wanton and reckless behavior, or malicious behavior.

The Court determined that the actions of the individual employees, as alleged in the lawsuit by Gabriel Taye's parents, were sufficient that a reasonable jury could believe them and find the employees were wanton and reckless, malicious, and/or acting outside the scope of their employment.  This didn't resolve the entire lawsuit, but it did mean that the individual school employees could be found liable for the boy's suicide, in addition to the school district.  The case will continue to trial.

Do you agree with the court's conclusion?  Why or why not?