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Articles by Lonnie Burton

Lawsuit by Former Prison Guards to Win Right to Carry Firearms Reinstated After D.C. Federal Court Reverses Summary Judgment

by Lonnie Burton

On June 3, 2016, the United States Court of Appeals for the D.C. Circuit reversed a D.C. District Court ruling which had granted summary judgment to the government and dismissed a claim filed by former prison guards who had sought the right to carry concealed weapons across state lines.

This case began when four retired District of Columbia and Maryland state prison guards sued the local D.C. government, claiming they were unlawfully denied the right to carry a concealed weapon. According to the guards, they, as "former corrections officers," qualify for that right under the Law Enforcement Officers Safety Act (LEOSA), 18 U.S.C. Sect. 926C. The LEOSA gives both active and retired "qualified law enforcement officers" the right to carry a concealed weapon in the United States upon meeting certain conditions.

Those conditions include that the individual must have had at least ten years’ service in good standing with a law enforcement agency and had the power to make arrests. According to the guards' complaint, they frequently travel across state lines and encounter former prisoners who often make threats to them, and thus wanted to carry firearms as protection.

When the guards ...

Lakewood (WA) Police Department Found in Violation of State Public Records Act

by Lonnie Burton

On May 25, 1016, Division Two of the Washington State Court of Appeals found that the City of Lakewood, Washington, and the Lakewood Police Department (LPD) illegally withheld documents in a Public Records Act (PRA) request and sent the case back to the trial court to determine the proper penalty. The appellate court also ruled that the claims related to one of the plaintiff's PRA requests was time-barred and upheld the trial court's dismissal of that claim.

The plaintiff, James T. White, made three separate PRA requests to the LPD, all seeking the same information. White is an attorney who was approached by a potential client seeking to file a civil rights case against the LPD stemming from the execution of search warrant on the client's apartment. To investigate the client's claims, White submitted three PRA requests to the City of Lakewood and the LPD.

The first two requests came a month apart in June and July of 2012, while the third request was made in September of that year. Each request asked for any and all "documents/emails/communication/reports" pertaining to the search warrant of the client's apartment.

The city ...

Juvenile Sex Offender from Michigan Required to Register in Kentucky; Court Holds Adjudication Counts as Conviction for Registration Purposes

by Lonnie Burton

On October 20, 2016, the Supreme Court of Kentucky upheld the conviction of a former Michigan man for failing to register as a sex offender in Kentucky. The high court held that a juvenile adjudication for a sex offense in Michigan was equivalent to a conviction in Kentucky and thus rejected the man's appeal under the Kentucky Sex Offender Registration Act.

The case began in 2009 when then 16-year-old Jeffrey Murphy was adjudicated a juvenile delinquent for committing third-degree criminal sexual conduct against a 13-year-old girl. Under Michigan law, Murphy was required to register as a sex offender in that state.

In 2011, at age 18, Murphy moved to Kentucky. He initially registered in Kentucky, but later moved to a new address without updating his registration. Despite being directed by authorities to update his address, Murphy refused, and was charged with failure to comply. When the trial court denied his motion to dismiss the charge -- based on the theory that a Michigan juvenile adjudication did not require his to register under Kentucky law -- Murphy entered a conditional guilty plea and was sentenced to one year in prison. Murphy appealed.

The Kentucky Court of Appeals ruled that ...

Seventh Circuit Reinstates Indiana Prisoner’s Lawsuit, Holds Prison Officials Prevented Him from Pursuing Grievances

by Lonnie Burton

In an April 5, 2016 ruling, the Seventh Circuit reversed an Indiana federal district court’s order dismissing a lawsuit filed by a state prisoner who claimed prison officials failed to protect him from assaults by other prisoners. The appellate court held the lower court had improperly found the prisoner failed to exhaust his administrative remedies, because prison staff prevented him from doing so.

In 2012, Indiana prisoner Asher B. Hill sued several prison officials under 42 U.S.C. § 1983, alleging that they failed to act or intervene to stop other prisoners from throwing feces on him through “cuff ports” on four separate occasions. The defendants quickly moved to dismiss, arguing that Hill had failed to exhaust his administrative remedies because he did not file formal grievances as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a).

The district court agreed and dismissed Hill’s complaint on summary judgment, and he appealed. On review, the Seventh Circuit held that Hill had satisfied the exhaustion requirements of the PLRA for three of his four claims because prison officials prevented him from filing or pursuing grievances.

Hill attempted to file four separate grievances ...

Fourth Circuit Rules Lawsuit over Inadequate Prison Food Not Barred by Res Judicata

by Lonnie Burton

On April 25, 2016, the Fourth Circuit overturned a district court’s order dismissing a lawsuit filed by a South Carolina prisoner who alleged that the food served at a state prison was so inadequate and lacking in nutrition as to violate his Eighth Amendment rights. The appellate court held that a previous unsuccessful lawsuit filed by another prisoner alleging the same violations did not bar the plaintiff’s complaint.

Lewis Duckett and 15 other prisoners at the Kershaw Correctional Institution in South Carolina filed suit in April 2013, challenging the quality of food served at the facility. They alleged that meals failed to meet the recommended daily amounts of vitamins and nutrients, that the prison served insufficient portions, and that food purported to be beef was actually made from poultry offal and organs.

The parties agreed that the complaint was drafted by Bernard McFadden, a prisoner who had previously filed and lost an exact same lawsuit while housed at another South Carolina prison. The state defendants moved to dismiss Duckett’s suit – which had since been split into 16 separate cases by the district court – on the basis of res judicata, arguing the “subject matter of ...

Unlikely Criminal Justice Reform: How New York City Reduced Arrests and Slashed Prisoner Populations

by Lonnie Burton

In what has been described as a "remarkable reversal of mass incarceration,” a newly-published report by Justice Strategies credited the New York Police Department (NYPD) for a massive decline in drug arrests that contributed to a sharp reduction in the state’s prison population. The study, co-published with the Vera Institute of Justice and released on October 28, 2016, was published in the Federal Sentencing Reporter.

The authors of the analysis, Judith A. Greene of Justice Strategies and Vincent Schiraldi, Senior Research Fellow at the Harvard Kennedy School Program in Criminal Justice Policy and Management, said the recent push by New York City (NYC) officials to reduce arrests “was spurred by grassroots advocacy and the growth of responsive and reform-minded public officials at both the state and local levels.”

The report described how the NYPD reduced drug arrests by 66% from 1998 to 2015, from 45,978 to 15,597 per year. During about the same period of time, NYC’s combined prison and jail incarceration rate dropped by 55%. In contrast, the incarceration rate in the rest of the U.S. rose by 12% from 1996 to 2014. The study found that NYC’s reduction in ...

Illinois: Prison Guards Sued for Fatally Beating, Suffocating Prisoner

by Lonnie Burton

On October 4, 2015, Illinois State prison guards identified only as officers Boland, Bufford and Deal beat prisoner Terrance Jenkins to death at the Pontiac Correctional Center while he was restrained, and suffocated him by shoving a piece of paper down his throat.

Those are the allegations in a lawsuit filed by Phyllis Ellis, Jenkins’ wife, in the U.S. District Court for the Northern District of Illinois on October 3, 2016. The 56-year-old Jenkins, who was glaucomic and housed in protective custody, died from asphyxiation. [See: PLN, March 2017, p.63].

According to the complaint, Jenkins was an avid cards and dominoes player who was on his way to the recreation yard at Pontiac when he was confronted by guards Boland, Deal and Bufford. They ordered Jenkins to stand for a pat search, at which time they found a small swatch of toilet paper in his breast pocket. The guards told Jenkins they were going to take his yard time away because paper was not allowed, and Jenkins tried to explain that he needed the tissue due to excessive eye drainage caused by his glaucoma.

One of the guards then screamed at Jenkins to “cuff the ...

Report: “Culture of Racism,” Frequent Use of Force at Northern California Prison

by Lonnie Burton

In December 2015, California's Office of the Inspector General reported there was a “culture of racism and lack of acceptance of ethnic differences” among guards at the High Desert State Prison (HDSP), who engaged in “alarmingly” frequent uses of force against prisoners. That report prompted state corrections officials to commission an external review of the facility, which is located about 200 miles north of Sacramento.

Corrections Secretary Scott Kernan ordered the outside review in March 2016, and the Association of State Correctional Administrators (ASCA), which conducted the investigation, published their results on September 23, 2016. The findings of the report, which cost California taxpayers $188,000, were wide-ranging and revealed what was described as a prison staffed by employees “without a clear sense of direction” who viewed prisoners as “little more than wild animals.”

HDSP was designed to hold about 2,200 prisoners but at the time of the study housed more than 3,400. Around three-quarters of the employees at the facility are white, while more than three-quarters of the prison population is black and Hispanic. The facility holds some of the state’s “toughest” prisoners, the report said, and guards rarely interacted with them ...

California Court Vacates Prison Infraction Charging Prisoner for Refusing Meals

by Lonnie Burton

The California Court of Appeal, First Appellate District, Division Two, has invalidated a prison infraction that charged a hunger-striking prisoner with “participating in a riot, rout, or unlawful assembly,” as it was unsupported by “some evidence.” The ruling reversed the finding of a prison hearings officer made nearly three years earlier.

Jorge Gomez was incarcerated at Pelican Bay State Prison’s Security Housing Unit (SHU), in segregation. Allegedly a gang member, Gomez was housed in the SHU for more than a decade before he began refusing meals on July 8, 2013 as part of what prison officials called a state-wide mass hunger strike organized by SHU prisoners.

When a sergeant noted that Gomez had refused nine consecutive meals over three days, he was issued an infraction report charging him with rules violations. He was charged with “willfully delaying a peace officer by participating in a mass hunger strike,” and participating in a riot or causing disorder in the prison. Both of the charges were based solely on his refusal to eat.

The hearings officer found Gomez guilty of the infraction, writing that Gomez had pleaded guilty and the record showed he refused nine consecutive meals.

On appeal ...

Widespread Abuses at Santa Clara County Jail; Three Guards Convicted of Murder

by Lonnie Burton

Three guards employed at a jail in Santa Clara County, California, in the Silicon Valley area, were convicted on June 1, 2017 of second-degree murder for the fatal beating of a mentally ill prisoner two years earlier. The charges also resulted in investigations into guards’ conduct as far back as 2013, and publicity surrounding the case spurred former prisoners to come forward with harrowing stories of assaults suffered at the hands of “out-of-control” jail staff.

Guards Jereh Lubrin, 30, Matthew Farris, 28, and Rafael Rodriguez, 28, were convicted of beating prisoner Michael Tyree to death. Tyree, 31, was found naked and lifeless in his jail cell on August 26, 2015; his death was caused by “multiple blunt force injuries,” according to Dr. Joseph O’Hara of the Santa Clara County Medical Examiner-Coroner’s Office. An autopsy revealed that Tyree was struck in the abdomen and sides of his body so severely, his injuries were “equivalent to being hit by a car or falling off a roof.” He had a damaged liver and ruptured spleen. [See: PLN, Jan. 2017, p.48].

The beating was reportedly in response to a verbal altercation that Tyree had with a nurse earlier ...


 

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