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$500,000 Jury Award for Rape of New York Pretrial Detainee Reinstated on Appeal

On August 18, 2011, the Second Circuit Court of Appeals reversed a New York federal district court’s entry of judgment for the defendants. The district court had thrown out a $500,000 jury verdict in favor of the plaintiff, which found the defendants knew that female prisoners faced a risk of sexual abuse by guards, and the defendants’ failure to prohibit unmonitored one-on-one interaction between guards and female prisoners had demonstrated deliberate indifference to their affirmative duty to protect prisoners from sexual exploitation.

At the trial in this case, it was undisputed that Erie County Deputy Marchon Hamilton forcibly raped pretrial detainee Vikki Cash on December 17, 2002 when he worked as a guard at the Erie County Holding Center (ECHC). While escorting female prisoners to recreation, Hamilton ordered Cash to remain behind. When he returned, he put his hands over her nose and mouth, forced her into the deputies’ bathroom and raped her. Hamilton subsequently pleaded guilty to third-degree rape and resigned his deputy position.

After Cash filed suit, a default judgment of $500,000 in compensatory damages and $150,000 in punitive damages was entered against Hamilton. The only issue at trial was that of municipal liability for Erie County. The jury found the county liable and awarded Cash $500,000 in compensatory damages. The district court then granted the defendants’ motion for judgment notwithstanding the verdict, and Cash appealed. [See: PLN, July 2009, p.23].

The Second Circuit began its discussion by clarifying the issues. There was no dispute that Cash’s due process rights had been violated as a result of Hamilton raping her while she was a pretrial detainee at ECHC, nor that Hamilton was acting under color of law, nor that former Sheriff Patrick Gallivan was the county’s relevant policy maker for the purpose of assessing municipal liability. The defendants’ motion for judgment notwithstanding the verdict focused solely on the sufficiency of evidence to demonstrate that Gallivan acted with deliberate indifference to the risk that Cash would be sexually assaulted by an unmonitored guard.

New York law prohibits guards from having any sexual contact with prisoners, and specifies that a prisoner cannot consent to sex while in custody. Jail employees also have a duty to protect prisoners. The district court held that ECHC’s policy of allowing unmonitored one-on-one interaction between guards and female prisoners was not unconstitutional, and the scant history of prior sexual assaults at ECHC failed to alert Gallivan to the risk that prisoners might be raped.

However, a 1999 incident, of which Gallivan was aware, allowed the jury to conclude that ECHC’s policy of merely proscribing sexual contact between guards and prisoners was insufficient to deter sexual exploitation. The report on the 1999 incident “indicated, at best, that a female prisoner had engaged in sexual exhibitionism before various guards, none of whom had reported the activity and some of whom may have paid for it with commissary items,” wrote the appellate court.

That incident qualified as placing the defendants on notice that their no-sexual-contact policy to deter sexual misconduct, standing alone, was insufficient. Indifference was also inferred by the Sheriff’s office imposing a three-day suspension on the guard involved in the 1999 incident, which was satisfied by giving up accrued compensatory time, when a 30-day suspension had been recommended. Thomas Frame, who was a Pennsylvania prison warden for 24 years, testified as an expert for the plaintiff that the failure to make policy changes in light of the 1999 incident posed a risk to prisoners.

“Defendants cannot claim that the evidence was insufficient to alert them to the risk of sexual exploitation posed by male deputies guarding female prisoners at ECHC,” the appellate court wrote. “That risk is acknowledged in New York state law, which pronounces prisoners categorically incapable of consenting to any sexual activity with guards ... and subjects guards to criminal liability for such conduct.”

As such, the Second Circuit found the defendants were not entitled to judgment as a matter of law, and ordered the jury’s $500,000 verdict against Erie County reinstated. The Court of Appeals also found the district court had properly denied the defendants’ motion for a new trial. Chief Circuit Judge Dennis G. Jacobs dissented, saying the majority ruling would “impose strict liability on municipalities and policymakers for any incidents that arise in a prison.” See: Cash v. County of Erie, 654 F.3d 324 (2nd Cir. 2011), petition for cert filed.

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Related legal case

Cash v. County of Erie