WARRANTLESS ENTRY INTO A HOME FOR EMERGENCY ASSISTANCE IS STILL A VALID EXCEPTION

By:  Dennis E. Wagner

The California Supreme Court recently addressed the issue of warrantless entry into a residence to provide emergency aid.  The court held that where police have an objectively reasonable belief that such assistance was necessary, entry can be made without a warrant.  The case was People v. Troyer (2011) DJDAR 2726.  This case involves a dispatch of “shots fired at a residence.” 

Upon arrival, within several minutes, a police sergeant arriving in plain clothes and in an unmarked vehicle approached the front porch where a white male was administering first aid to a female who had been shot multiple times.  The white male also had a wound to the top of his head, with blood streaming down his face.  The sergeant inquired as to whether there were others inside the residence and the male had difficulty responding for 15 or 20 seconds and stated “he did not think so.”  When asked again, the male stated, after a long pause “no.”  The situation was chaotic with medical aid being directed by the sergeant to the bleeding male.  The window blinds were all closed so you could not see into the residence.  The male had a set of keys which were for the residence, but declined to give permission to enter the house.  The sergeant warned him that officers would kick in the door if he wouldn’t unlock it, whereupon he agreed to cooperate.  By this time, uniformed officers were present to enter the house and began clearing it for victims. 

One of the officers found a locked bedroom door.  After knocking and having no response, the door was kicked open.  The officer smelled marijuana and observed it and an electronic scale.  His observations were relayed to a detective who prepared an affidavit for a search warrant.  The warranted search then uncovered additional marijuana, live plants, automatic pistols and weapons and linked the defendant, Troyer, to the residence. 

The defendant, who was not home at the time, challenged the initial seizure which led to the warrant, as violating his Fourth Amendment Rights under the United States Constitution. 

The U.S. Supreme Court has made it clear that the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.  Payton v. New York (1980) 445 U.S. 573, 585.  Searches and seizures inside a home without a warrant are presumptively unreasonable (Payton at pg. 586).  Nevertheless, the Fourth Amendment is guided by reasonableness for the warrant requirement and is subject to exceptions such as to render emergency assistance to an injured occupant or to protect an occupant from an imminent injury.  Brigham City v. Stuart (2006) 547 U.S. 398, 403. 

The need to protect or preserve life or avoid serious injury is justification for what would otherwise be an illegal entry absent the emergency. Mincey v. Arizona (1978) 437 U.S. 385, 392.  The exception to the warrant requires an objectively reasonable basis for believing that a person within the house is in need of immediate aid.  The court held that under the facts that it was not unreasonable for officers to infer that perhaps an injured victim was being concealed, or they were being intimidated by an unseen attacker.  U.S. v. Leveringston (8^th Cir. 2005) 397 F.3d 1112, 1117.  Blood on the shirt could reasonably be inferred to be that of the bleeding party, or could reasonably infer that another party perhaps had been injured in the struggle.  Michigan v. Fisher (2009) 130 S. Ct. 546, 549.  Further, the situation was sufficiently ambiguous to warrant further inquiry by officers based upon the white male’s statements.  A responding police officer is not required to accept blindly an explanation for a 911 call offered by the person answering the door upon police contact.  See U.S. v. Russell (9^th Cir. 2006) 436 F.3d 1086, 1090. 

 The California Supreme Court ultimately upheld the search; thus, the seizure and ultimately later obtained warrant, was reasonable and the evidence at the court below was properly before it.  The evidence could not be suppressed under these circumstances.

SO YOU ARE A DEFENDANT IN A CIVIL ACTION

by Dennis E. Wagner, Esq.

In the course of doing your job as a law enforcement officer, you will be sued for doing your job.  Being sued as a defendant is much different than being the star witness for the prosecution in the criminal cases that you are more familiar with.  Being a defendant, whether in state court or federal court, is stressful and involves your participation in an event unfamiliar to you.  One of the most important things about being sued as a defendant for civil rights violations whether in federal or state court is to meet with the defense counsel early on.  Defense counsel should be able to put you at ease and start the process of orienting you to what it is like to sit at the other table in the courtroom.  One of the most important things about being a defendant in a lawsuit is being ready for your deposition.  Believe it or not, some attorneys think that it is better for the witness to be unprepared at the deposition and thus, respond with a bunch of “I don’t knows and I don’t remembers.”  Nothing could be further from the truth.  You need to be prepared at your deposition, as prepared as you will be the day you walk into a courtroom.  The jury at trial wants to see a police officer that is articulate and in command of the facts.  For you to be articulate and in command of the facts at trial, you also need to be articulate and in command of the facts at the time of your deposition.

The deposition is a proceeding under oath where you are given the same oath as you would receive in a court of law.  It carries with it the same penalty should you intentionally misstate your testimony. Perjury prosecutions are extremely rare, but if you were involved in a high profile case, and intentionally testified untruthfully, there could be problems. 

The deposition is never a friend of law enforcement. The deposition is evidence in the case.  What you say is evidence and can be read to the jury during the plaintiff’s case against you.  As such, you want to make sure that your answers are intelligent, thought out, but for the most part, concise, brief and to the point.  The deposition is never the time to tell your story.  Your story is best told and completely told when you are in front of the jury.  When things can be laid out to the jury in a comprehensive and cohesive fashion.

The deposition is a proceeding where the plaintiff’s attorney is able to size you up, try and get you to commit to some statements or issues that can later be used against you.  If the case involves a shooting, you need to be able to articulate your department’s use of force policy.  You might need to discuss the continuum of force and why you had to resort to deadly force under the circumstances.  There may be issues as to whether you were able to provide a verbal warning or not before a shot was fired.  Your training becomes an issue and you should be able to articulate your training.  You should be able to articulate that the Fourth Amendment is the legal guide for your actions in dealing with a suspect in trying to seize the suspect which led to the shooting. 

To prepare for a deposition may require multiple meetings.  If the police officer is involved in a complex event, or a serious event such as a shooting, it may take several meetings to address and go over all of the issues that will be relevant for the deposition.  The purpose of deposition preparation is to make sure that you are prepared to handle any question that comes up at the time of the deposition.  Often times, plaintiff’s counsel will videotape your deposition.  Deposition preparation will make it easier for you so that you do not look like a “deer caught in the headlights” that sometimes occurs.

Moral of the Story:

The moral of the story for you being a defendant in a civil case is to meet with your lawyer.  If you are not comfortable with your lawyer, complain to the department about the lawyer that you have.  The agency is obligated to provide you a defense for your actions that take place in the line of duty.  In addition to meeting the lawyer, one of the most significant or key events is your deposition.  You need to be prepared for your deposition and if no one is meeting with you beforehand, the deposition needs to be continued.  You should not be meeting with an attorney an hour before your deposition is to take place to “get you ready.”  The success in defending a case is directly related to the preparation of the law enforcement officers so that they make the best possible witness they can be.  No one is talking about putting words in anyone’s mouth, or having anyone testify a certain way.  Armed with information and preparation helps the law enforcement officer better present the facts of his case.

 

REVISITING THE “OBJECTIVELY REASONABLE” STANDARD FOR USE OF FORCE

by Risa S. Christensen, Esq.

The “reasonableness” standard has been around for a long time.  This is the standard by which officers are instructed to gauge their actions when contemplating whether to use force in the situation before them.  So, if officers are taught this in the academy and in on-going training, why are so many officers still being sued? Certainly mistakes happen, and certainly some situations present themselves which were never discussed in the classroom of the academy or in POST hypotheticals.  But far too many lawsuits are being brought for situations which are not that unusual, or uncommon, so maybe there’s another reason.  Are some officers reacting without thinking, or reacting out of anger or frustration?  Or, are some officers simply misinterpreting or misapplying the reasonableness standard?

An officer’s use of force is governed by the reasonableness standard set forth in Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). The “reasonableness inquiry in an excessive force case is an objective one, meaning, the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances  confronting them, without regard to their underlying intent or motivation. So, an officer’s own personal feelings, fear, anger, frustration, etc., are not factors but rather the test is based on the perspective of a reasonable officer on the scene.  Courts are suppose to determine the reasonableness of the officer’s actions based upon whether another officer standing in this officer’s shoes, reasonably perceived there was a need to use the amount of force used in the given situation.

The question the officer asks himself should be do I need to use force.  And when using force, what amount of force is reasonably necessary under these circumstances.  Whatever your decision with respect to whether to use force and the level used, you must remember that you will have to justify your actions to your department and to the public.  Later, you may have to justify it before a judge and jury.  Always maintain your integrity and professionalism and give plenty of verbal warnings at every level if you are able to do so. Use force only when it is objectively reasonable to do so under the circumstances facing you.

 Courts are also instructed to balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.  So if the intrusion is extreme such as a high level of force as compared to what the level of resistance the subject presents, a particular level of force may not be reasonable under the circumstances.  

Being a law enforcement officer is stressful, but hopefully it’s also very rewarding. Protect your good name and reputation of integrity by remembering the “objectively reasonable” standard when you determine you need to use force in a given situation.

Lights, Camera, Action?

by  Tristan G. Pelayes

You are investigating a homicide that just occurred.  As you are processing the scene, you notice an individual with a video camera standing on his front porch videotaping everything that you are doing.  The shooting took place at a public park.  The home where the individual is filming is about 50 feet away from the actual scene of the shooting.  In fact, the person videotaping the scene comes up to you while you are processing the scene and he tells you that he captured the actual shooting on videotape.  He tells you that his camera is at his house and that he will not, under any circumstances, give you the videotape.  You observe the individual walk back to his house, pick up the camera, and sit out on his front porch.  

Question:  Do you have the right to confiscate the camera since it potentially captured the shooting incident?

 Answer:  No, unless you have a court order, you cannot confiscate the camera. 

 I know that you like to be creative.  However, you cannot arrest the owner of the camera for a 148 for interfering with your investigation.  Nor can you arrest him for Penal Code 632, the wire tap act.  What you can do as a peace officer is probably confiscate the camera, freeze the scene, and immediately get a warrant or a court order in order to keep the video camera and tag it into evidence.  Keep in mind that the camera and its contents are still protected under the Fourth Amendment because it is property.  No argument of exigency will prevail to allow you to confiscate the property without a court order.

Brady v. Maryland Means Tell the Truth

by Dennis E. Wagner

The seminal case of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963) stands for the proposition that the prosecution must turn over exculpatory material to a criminal defendant so the criminal defendant can adequately prepare a defense in the criminal case.  The obligation falls on the District Attorney to provide such exculpatory material.  The issue that often arises in a criminal case is does the law enforcement agency have material regarding an officer who is the investigating officer or case agent in the criminal case?  Does the law enforcement agency have an obligation to turn over such “Brady” material to the District Attorney?  The answer is “yes” the material does need to be turned over to the District Attorney and ultimately to the criminal defense attorney. 

Brady material for a law enforcement officer has been deemed to be such material as relates to the truthfulness or untruthfulness of a particular officer.  Most officers in California are familiar with Pitchess v. Superior Court, (1974) 11, Cal.3d.531, which is a mechanism to obtain information in a criminal case involving citizen complaints that have been made against the officer.  The Pitchess Motion that is filed in a criminal case requires the law enforcement department to show up in court with the personnel files for an “in camera” inspection by the court.  If there is a pattern of citizen complaints that are related to truthfulness or to similar conduct in the criminal case, the court can order the names, addresses and telephone numbers of the citizen complainants to be provided to the criminal defense attorney.  Often times citizen complaints are deemed to be unsustainable or unfounded.  This information could still be provided in the Pitchess setting to the criminal defense attorney.  This is a setting that requires the criminal defendant to go forward to obtain the material.  This is completely different from the District Attorney’s obligation to turn over “Brady” material.

Courts also recognize a violation of a citizen’s constitutional rights where an officer includes false information in police reports, or subjects a citizen to criminal charges based upon false information. Devereaux v. Abbey, 263 F.3d 1070 (9^th Cir. 2001).

The Moral of the Story:

You have to be truthful as it concerns the conduct that you engage in for your department.  A finding of you being untruthful in any investigation could well trigger an obligation for this material to be provided to a criminal defense attorney in other cases.  This “Brady” material could then be used against you as a witness in the criminal case with a criminal defense attorney arguing to the jury that you should not be believed because you have been found to have been untruthful in the past with your department.  This is seemingly fatal to the officer for any career for advancement within the department.

Brady issues are very real for a law enforcement officer since an adjudication of being untruthful will follow the officer throughout his or her career.

All law enforcement departments should have a mechanism in house, whether through Internal Affairs or some other agency, to be able to ensure that “Brady Material” is provided to the District Attorney upon request. The District Attorney should be routinely requesting in the criminal cases that it is handling whether there is Brady material regarding any one of the officers for disclosure. Keep in mind Brady material is different from material that can be obtained by way of a Pitchess Motion.

Former Prisoner Fails To State First Amendment Retaliation Claim

by Marty E. Zemming

In 2003, plaintiff, Kevin Roberson filed a civil rights action against prison officials at High Desert State Prison which resulted in a jury verdict in favor of the defendants.

In May 2006, he was transferred to Kern Valley State Prison (“KVSP”). Before his transfer, a doctor determined that he was a candidate for Hepatitis C treatment and was in the process of referring him for a liver biopsy at an outside facility. Upon learning that that the inmate was to be transferred, the doctor held off on the biopsy referral, but assured plaintiff that he would be taken care of at KVSP.

Upon arrival at KVSP, Roberson supposedly overheard prison officials referring to him as the “Litigator from High Desert” and he learned that several officials from High Desert worked at KVSP and were familiar with his prior lawsuit.

Roberson informed the nurse at KVSP that he had  Hepatitis C  and was in need of a liver biopsy and treatment. In June, 2006, Roberson had blood taken and was notified that the test results were within normal limits and that no physician follow-up was necessary and Roberson filed a medical grievance. Roberson claimed that he had been given inaccurate and misleading information regarding his condition.

In November 2007, Roberson was seen at the Hepatitis clinic and was informed that because his earliest possible release date was in December 2008, that he was not eligible to receive the treatment because the hepatitis treatment took sixteen months.

In early 2008, his earliest possible release date was changed to April 2010. He met with prison official at KVSP and asked to receive treatment since he would be confined longer and was told she would look into it.

In May 2008, Roberson was transferred to CCI and was placed a medical hold pending a liver biopsy. Despite the medical hold, he was transferred to Salinas Valley State Prison. His earliest possible release date was then changed again to December 2009, which made him ineligible to receive treatment.

Discussion

In Roberson v. Zamora  2011 WL 121561, 1 (E.D.Cal.,2011), Roberson sued alleging his First Amendment rights were violated by retaliatory conduct based on his prior litigation and medical grievances and complained his Eighth Amendment right to adequate medical care was violated by prison officials.

“Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal .” Rhodes v. Robinson 408 F.3d 559, 567-68 (9th Cir.2005). 

The filing of a grievance or civil rights action is protected under the First Amendment. Bradley v. Hall 64 F.3d 1276, 1279 (9th Cir.1995).

In Roberson, plaintiff could not point to any evidence regarding the State’s penological goals and whether the retaliatory acts complained of, based on his medical grievances and his prior litigation history, were related those goals and further could not link any facts to the supposed retaliation. The court could not ascertain what actions were alleged to be retaliatory such that would discourage a person from exercising his First Amendment rights.  Roberson could not even show the defendants knew about his litigation history and medical grievance.

A plaintiff must show that his protected conduct was a substantial or motivating factor behind the defendant’s conduct.  A prisoner must affirmatively allege that “the prison authorities’ retaliatory action did not advance legitimate goals of the correctional institution or was not tailored narrowly enough to achieve such goals.”  Rizzo v. Dawson  778 F.2d 527,532 (9th Cir.1985).

Because Roberson did not allege facts to satisfy all five prongs of the retaliation claim, he did not state a claim upon which relief could be granted.  The court granted Roberson leave to file a Fourth Amended Complaint.

It should be noted that while Roberson did not state a claim for retaliation, the court did note that this was not a difficult burden citing Rizzo where the mere allegation by a prisoner that a search was arbitrary was sufficient.

Inaction can be Justified

by Brandi L. Harper

In our blog we have dealt previously with the extent of duty of a police officer.  However, one case which gained nationwide notoriety and was heard by the Supreme Court was one in which a man killed the three children and was killed himself by police despite his wife having a restraining order against him and contacting the police multiple times regarding him taking the children.  In this horrible circumstance arose the question of whether the police had a duty to protect.  The Supreme Court dealt with this specific factual issue in Castle Rock v. Gonzales (2005) 545 U.S. 748; 125 S. Ct. 2796. 

Background of the Case

During the divorce proceeding, Mrs. Gonzales had a restraining order against her husband which required him to stay 100 feet away from her and their three daughters, except during visitation time.  On June 22^nd her husband took their three daughters during a period of time which was not his visitation time.  Mrs. Gonzales called the police at 7:30 p.m., 8:30 p.m., 10:10 p.m. on June 22^nd and 12:15 a.m. on June 23^rd.  She then visited, in person, the police station at 12:40 a.m. on June 23, 1999, each time expressing concern that he had the children and was in violation of the restraining order.  The police took no action.  At 3:20 a.m. on June 23, 1999 Mr. Gonzales appeared at the Castle Rock Police Station and instigated what would end up being a fatal shootout between him and police.  When the officers searched his vehicle they found the bodies of his three daughters who he had killed prior to arriving at the police station.

State Court Case

Mrs. Gonzales filed a 1983 claim against the police department in district court claiming a federally protected property interest in the enforcement of the restraining order and alleging a Monell claim for “an official policy or custom of failing to respond properly to complaints of restraining order violations.”  The defendants filed a motion to dismiss, which was granted.  Mrs. Gonzales then appealed to the Tenth Circuit Court of Appeals who rejected her substantive due process claim but found a procedural due process claim.  However, the court also inferred that the three individual officers have qualified immunity and could not be sued.

The Supreme Court

The Supreme Court reversed the Tenth Circuit’s decision and agreed with the dismissal of the district court.  The court held that enforcement of the restraining order was not mandatory under Colorado law.  Even if a mandate for enforcement existed it would not create an individual right to enforcement under the precedent of Board of Regents of State Colleges v. Roth.  Even if there were a protected individual entitlement of enforcement of a restraining order, such entitlements would have no monetary value and would not count as property for the due process clause.  Thus, the Supreme Court found that there was absolutely no claim which could be brought.

Moral of the Story

Even the most horrific of outcomes does not change the duty that the officers have.  There is no duty to act in a situation as set forth in this case.  Like Colorado, most states do not have a law requiring enforcement of restraining orders.  While unfortunately there are situations in which horrific consequences may result from inaction of officers.

No Retaliatory Arrest Where Officers Had Probable Cause To Arrest

by Marty E. Zemming

Background

Plaintiff was arrested and prosecuted for violating a noise ordinance in Yakima Municipal Court. Following a bench trial, the judge found there was a “technical violation of the law” because the incident occurred within the City of Yakima, involved a motor vehicle sound system, and the noise could be heard greater than 50 feet from the vehicle.  However, the court found the plaintiff did not knowingly cause, make or permit the sound to be a public disturbance noise and found him not guilty.   Plaintiff claimed he was under arrest from the moment he was pulled over.

Plaintiff brought a 1983 action against the City of Yakima and two police officers for alleged constitutional violations.  Plaintiff alleged he was the subject of an unlawful traffic stop and was arrested in retaliation for exercising his First Amendment right to freedom of speech. The District Court found probable cause was established by the noise that was heard coming from the vehicle and his arrest was not retaliatory and granted summary judgment.

Retaliatory Arrest

To prevail on a First Amendment retaliation claim, a plaintiff must show: “(1) that the plaintiff ‘was engaged in constitutionally protected activity;’ (2) that the defendant’s actions caused the plaintiff ‘to suffer an injury that would chill a person…from continuing to engage in that activity’; and (3) that the ‘defendant’s adverse action was substantially motivated as a response to the plaintiff’s exercise of constitutionally protected conduct.’ “ Worrell v. Henry 219 F .3d 1197, 1212 (9th Cir.1999).

A plaintiff need not plead the absence of probable cause in order to state a claim for retaliatory arrest. However, the U.S. Supreme Court has stated that probable cause has “high probative force” and “probable cause or its absence will be at least an evidentiary issue in practically all such cases.” Hartman v. Moore 547 U.S. 250, 265 (2006). Where evidence of retaliatory motive is weak, the presence of probable cause is that much more probative.  A finding of not guilty based on a beyond a reasonable doubt standard does not eradicate the existence of probable cause.  

In Ford v. City of Yakima 2011 WL 884445 (E.D.Wash.), despite the finding of not guilty, based on the totality circumstances, the officer had probable cause to believe that plaintiff, who was in the vehicle and controlling the volume, was knowingly causing or making or permitting a sound that constituted a public disturbance in violation of the noise ordinance. As such because of the municipal judge’s ruling that there was a “technical violation of the law,” plaintiff could not question the existence of probable cause.

KENTUCKY V. KING, THE SUPREME COURT REVISITS THE EXIGENCY EXCEPTION FOR WARRANTLESS ENTRY

by Risa S. Christensen, Esq.

In the recent case of Kentucky V. King, 131 S. Ct. 1849 (2011), the United States Supreme Court considered under what circumstances do police create an exigency such that the exigent circumstances exception to the warrant requirements would not apply.  Should the exception apply to prevent the destruction of evidence when police, by knocking on the door of a residence and announcing their presence, cause the occupants to attempt to destroy evidence?

This case concerned a situation where police officers in Lexington, Kentucky, set up a controlled buy of crack cocaine.  After the sale, officers followed the drug dealer to an apartment complex, but when they reached the floor the suspect was believed to have gone, the officers could not determine which of two apartments the suspect had entered. The officers soon smelled marijuana from outside the door of one of the apartments and did a knock and announce.  The officers then immediately heard noise inside the apartment consistent with the destruction of evidence.  Fearing the occupants were inside destroying evidence, the officers kicked in the door, and saw marijuana and  cocaine in plain view.  In a subsequent search, they found crack cocaine, cash, and drug paraphernalia.  The suspect they had initially followed was found in the other apartment.

King, an occupant of the apartment the officers had entered,was arrested.  King filed a motion to suppress the evidence from the warrantless search.  The trial court and the court of appeals both found that the officers’ exigent circumstances justified the warrantless entry because the police reasonably believed that evidence would be destroyed. The police did not impermissibly create the exigency because they did not deliberately evade the warrant requirement.

The Kentucky Supreme Court reversed the court of appeal and held that the exigent circumstances rule did not apply because the police should have foreseen that their conduct would prompt the occupants to attempt to destroy evidence.

The US Supreme Court rejected this interpretation of the exigent circumstances rule and ruled that the exigent circumstances rule did apply to this situation because the conduct of the police prior to their entry into the apartment was lawful and the officers did not violate the Fourth Amendment or threaten to do so.

The Supreme Court ruled once again that the exigent circumstances exception is applicable when police do not gain entry by means of an actual or threatened violation of the Fourth Amendment.

This ruling is likely to be revisited in 1983 litigation related to qualified immunity, especially since the Supreme Court said there was no Fourth Amendment violation.  You can anticipate future discussions as we review cases in which officers are sued for warrantless entries and the issue of “exigent circumstances” is raised under King.

THE DUTY TO PROTECT AT THE JAIL

by Dennis E. Wagner, Esq.

One of the interesting issues that arises from time to time in jail settings is the duty to protect the inmate.  Pre-trial detainees are governed under the Fourteenth Amendment Due Process Clause as it concerns the duty to protect.  A sentenced prisoner is governed by the Eight Amendment, under the cruel and unusual punishment clause. 

Liability can be imposed upon a jailor for failure to protect an inmate and requires that the jail official have a sufficiently culpable state of mind or one that is deliberately indifferent to the inmate health and safety.  The deliberate indifferent standard is a subjective one which means that the jailor must know a substantial risk of harm exists to the inmate and then was deliberately indifferent to the risk that was posed.  Farmer v. Brennan 511U.S.825, 834 (1994).

Most jails have a classification process.  The classification officers are generally required to have more training as the issue of classification is one that is constantly changing and adapting due to the needs of the jail and the inmate population that is coming into the facility.  As an example, an inmate is brought into a facility charged with spousal rape.  The inmate is placed in the general population or a dormitory style unit.  At lights out, the inmate is assaulted by other inmates.  The inmate does not know why he was assaulted.  After the inmate is medically cleared, classification once again reviews the inmate’s status and now places him in a higher security unit, where the inmates are two persons to a cell.  Let’s assume again, the inmate is now assaulted once more, but after this assault is permanently brain damaged.  Is there liability?

In this scenario, probably not.  Despite knowledge of the “first assault”,  classification talks to the inmate and makes another housing determination based upon the information presented.  If the facts are changed slightly, and the inmate requests protective custody after the first assault or, the jailor determining the assault was based upon his charge, must the jail provide protective custody?  First of all, the jail does not need to provide protective custody unless the jail determines that protective custody is necessary.  An inmate’s request for protective custody should not be enough as the jail is responsible for the safety and housing of the inmates based upon the population presented.  The knowledge that the first assault was based upon the charge may be enough to warrant protective custody combined with the inmate request.  Under the above facts, if the inmate requested protective custody and it was denied, it might become more difficult for the jailor deputy to receive qualified immunity.  The inmate could show that (1) there was a prior assault; (2) he requested protective custody; and (3) the jailor knowing of the prior assault and the request for protective custody denied the request.  Under those circumstances, qualified immunity might not be available for the jailor to avoid a trial. 

Conclusion:

The duty to protect always exists in the jail setting.  Classification deputies and officers need to be aware of inmates who enter on charges that place the inmate at risk, or inmates that appear to be weak or unable to protect themselves within the jail setting.  Those inmates may well require protective custody.  Protective custody is a stigma to the inmate who receives it and follows that inmate throughout his career in the correctional settings of California.  As a result, protective custody is something that should not be granted lightly, since it does have the potential to cause harm to the inmate, who is now deemed to be a rat, snitch or otherwise. 

The moral of the story is that as long as classification officers act upon the best information available to them, more likely than not the jailor should be entitled to qualified immunity for the decision that is made to place the inmate within the jail, even if the inmate is injured by other inmates.