Erie County Sheriff Settles AG Lawsuit for Violating New York Reporting Directives
by Kevin Bliss
A suit against Erie County Sheriff Timothy Howard was settled in June 2021. The New York State Commission of Correction (Commission) filed the suit against the Eric County Sheriff’s Office (ECSO) for their inability to comply with a directive regulating the reporting and investigating of incidents “of a serious or potentially problematic nature.”
The lawsuit alleged that the Erie County Holding Center and the Erie County Correctional Facility (the Facilities) failed to report several incidents occurring after the directive was issued, including sexual misconduct and staff assaults on prisoners.
In 2017, the Commission held a hearing and determined the ECSO failed to properly report several incidents of assault, erroneous release, and suicide. This failure prompted the Commission to develop a set of directives regarding reporting and investigating incidents within the jails. First, all serious incidents of sexual misconduct and assault must be reported to the Commission within 24 hours. Reports of erroneous releasee or suicide attempts must be filed promptly. Serious incidents occurring within the Facilities must be reported immediately using eJusticeNY Integrated Justice Portal’s online submission form.
In March 2021, the Commission filed suit against the sheriff of Erie County claiming there were at least eight new incidents at the Facilities which the ECSO failed to properly report and investigate as dictated by the previously issued directive.
In April 2018, a prisoner with substance abuse history and mental health problems was assaulted by a sergeant when the prisoner attempted to conceal contraband in his mouth. The sergeant said he handcuffed the prisoner then used physical force to pry the prisoner’s mouth open. The prisoner refuted these accusations and claimed he was sexually assaulted by the sergeant. This claim, the lawsuit stated, was not properly reported or investigated.
In another incident from June 2020 a prisoner reported seeing a sergeant and another female prisoner engaging in sexual relations. These allegations were later substantiated with statements from a second prisoner. The suit stated that the case was determined unfounded due to lack of physical evidence, although claims of the female prisoner being paid for her services could be verified by unusually large trustee payments in her account.
More such incidents were listed in the lawsuit. The Commission stated that the ECSO was in violation of the 2017 directives and in a knowing and deliberate fashion. The Commission sought injunctive relief through the courts. They asked for independent overview from an uninterested third party for the next five years, and mandated training in New York’s zero-tolerance sexual misconduct policy.
The parties entered into a consent judgement in Erie County Supreme Court. Under the terms of the consent decree, the jail agreed to require training for ECSO employees in both sexual misconduct and proper reporting and investigating of incidents to the Commission. The ECSO agreed to to work with an independent monitor to ensure proper training.
The ECSO gets to chose its own independent monitor, subject to the Commission’s approval. The monitor will review the jail’s policies and procedures and audit prior incident reporting. ECSO agreed to pay for the monitor and retain them for three years. The monitor will assist ECSO in developing training and policies to ensure compliance with reporting requirements as well as criminal sexual assault investigations. This includes protocols to prevent retaliation against prisoners who complain of being raped in custody, retaining video of such assaults and that investigators be properly trained and supervised. The policies must ensure zero tolerance for sexual assaults of prisoners and jail responses must be effective.
The jail agreed to ensure that all its policies and procedures will be available to prisoners including those with disabilities and limited English proficiency. The jail agreed to provide all the relevant staff training by December 15, 2021 and refresher training by that date each year for the duration of the agreement.
In its audit, the monitor must identify any incidents which were not properly reported to the commission and the staff responsible. The monitor is to have unrestricted access to all documents and information necessary to complete any task consistent with the consent decree. See: New York v. Howard, S.Ct. of Erie County, Index #803433/2021.