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Prison Legal News: May, 2013

Issue PDF
Volume 24, Number 5

In this issue:

  1. Arkansas Sheriff Took Kickbacks for Card Fees, Class-Action Suit Says (p 1)
  2. Prison Visitation: A Fifty State Survey (p 1)
  3. Maine Prisoner’s Contraband Conviction Vacated (p 11)
  4. Pennsylvania: No Prison Time for Guards Convicted of Abusing Prisoners (p 12)
  5. My Life with Lifers, by Dr. Elaine J. Leeder. (E-Books Unbound, 2012). 140 pages, $4.99 (e-book) or $14.95 (paperback) (p 13)
  6. Mandatory Lifetime Monitoring a Direct Consequence of Sex Offense Plea Bargain in Michigan (p 14)
  7. Governmental Highway Robbery: Asset Forfeiture and the Pillaging of the American People (p 16)
  8. $17.75 Million Settlement for Victims of Pennsylvania “Kids for Cash” Scandal (p 18)
  9. Virginia Prisoner Pardoned After Accuser Admits She Lied (p 18)
  10. Ex-Felons are About to Get Health Coverage (p 20)
  11. CCA Admits to Falsified Staffing Records, Violating Contract with Idaho DOC (p 22)
  12. Utah: Private Company Offers to Pick Up Prison Tab (p 24)
  13. Iowa Sex Offender Special Sentence Provisions Interpreted: Time-Served Credit, but Not Earned-Time, Reduces Revocation Term (p 25)
  14. California: Parole Placement of Serial Killer’s Accomplice in Remote County Upheld (p 26)
  15. North Carolina County Conned into Building $100 Million Jail (p 26)
  16. Seventh Circuit Vacates Summary Judgment for Nutriloaf Diet (p 28)
  17. Eighth Circuit Overturns Jury’s $850,000 Verdict for Nebraska Detainee’s Suicide (p 30)
  18. Oklahoma Parole Board Members Charged with Violating Open Meeting Act (p 30)
  19. CCA Excludes Shareholder Resolution Requiring Company to Fully Disclose Information about REIT Conversion (p 32)
  20. No Room for 900 New Washington Prison “Rugs” (p 32)
  21. Faulty Background Checks Blamed on Digitized Records, Greedy Amateurs (p 34)
  22. Prison Health Care Provider under Fire in Illinois (p 36)
  23. Lawsuits Filed Over Unrelated Deaths of Two Oregon Prisoners (p 38)
  24. Muslim Prisoners Challenge Ohio’s Denial of Halal Meals; Pork Producers Protest (p 40)
  25. New York: $225,000 Settlement for Prisoner’s Suicide Attempt, Abuse at Rikers Island (p 40)
  26. California District Attorney Sued by Former Colleague (p 41)
  27. Administrative Remedies “Unavailable” when Prisoner under Threat of Intimidation or Retaliation (p 42)
  28. California: Lifer Entitled to Credit for Time Served Following Governor’s Erroneous Veto of Parole Grant (p 42)
  29. Kentucky DOC May Not Alter Presentencing Custody Credits (p 44)
  30. Oregon Parole Board’s Notice-of-Rights Form Violates APA (p 44)
  31. New York Creates “All Crimes DNA Database” (p 45)
  32. Federal Court Limits New York’s Civil Commitment Statute, but Injunction Vacated on Appeal (p 46)
  33. $695,000 Settlement in Discrimination Suit by Deaf Colorado Detainees (p 48)
  34. California State Bar Recommends District Attorney’s Disbarment (p 48)
  35. New York Sex Offender Registration Determination is Exception to Article 78 Review (p 49)
  36. Sixth Circuit: Disciplinary Conviction Does Not Bar Excessive Force Claim (p 50)
  37. California: Nine Detainees Charged in Jailhouse Killing; Five Sentenced to Life Terms (p 50)
  38. Oregon: Only Voluntary Surrender Avoids Fugitive Dismissal Rule (p 52)
  39. Oregon Jail Guard Gets Three Years for Sex with Prisoner (p 52)
  40. Arkansas Prisoner’s Ad-Seg Reviews Held to be Meaningless; Case Remanded to Recalculate Damages (p 54)
  41. U.N. Considers Revisions to Standard Minimum Rules for Treatment of Prisoners (p 54)
  42. News in Brief (p 56)

Arkansas Sheriff Took Kickbacks for Card Fees, Class-Action Suit Says

An Arkansas Sheriff received kickbacks from a company hired to convert cash seized from county jail prisoners to prepaid debit cards “with numerous exorbitant fees,” a federal class-action lawsuit claims.

More than 2,200 people who were arrested or booked in the Benton County Jail claim their cash was seized ...

Prison Visitation: A Fifty State Survey

by Chesa Boudin, Trevor Stutz and Aaron Littman

This article presents a summary of the study’s findings. The full study and data set will be published in a forthcoming volume of the Yale Law and Policy Review: Chesa Boudin, Trevor Stutz & Aaron Littman, “Prison Visitation Policies: A Fifty State Survey,” 32 Yale L. & Pol’y Rev. (forthcoming January 2014).

A collaboration between law students and correctional administrators recently produced the first ever fifty-state study of prison visitation policies. The study, conducted by the Arthur Liman Public Interest Program at Yale Law School in collaboration with the Association of State Correctional Administrators (ASCA), offers a window into the varied state and federal visitation policies, and provides a new opportunity to share best practices.1

The study’s findings were presented at ASCA’s annual training conference in October 2012 alongside presentations by state directors from the Ohio and Minnesota departments of corrections, which highlighted the impact of visitation on prison safety and recidivism.
Importance of Prison

Visitation Policy

Visitation is the primary interaction between prisoners and the public. Visitation policies impact recidivism, prisoners’ and their families’ quality of life, public safety, and prison security, transparency and accountability. Yet many policies are inaccessible to visitors and researchers. Given the wide-ranging effects of visitation, it is important to understand the landscape of visitation policies and then, where possible, identify best practices and uncover policies that may be counterproductive or constitutionally infirm. Comparative analysis of the sort undertaken in this study will hopefully not only inform academics but also empower prisoners and their families to demand meaningful exercise of their First Amendment right to association. In the same vein, the study aims to encourage regulators and prison administrators to implement productive reforms.

Comparative analysis of visiting is particularly valuable given that the contours of prison visitation are determined almost exclusively by administrative discretion, unconstrained except at the margins by judicial interference. The Supreme Court and other federal courts have been largely deferential to prison administrators, granting them wide latitude generally, and in the realm of visitation regulations specifically.2 As a result, decisions made by corrections officials are among the primary determinants of whether and how prisoners are able to maintain relationships with their parents, spouses, siblings and children.

Visitors often represent the only contact prisoners have with the world outside the prison walls, to which they will most likely return after serving out their sentences. The strength of the connections prisoners maintain with their communities may depend substantially on visitation regulations promulgated by administrators. The nearly unrestrained discretion officials have in crafting and implementing prison visitation regulations makes clear how consequential these policy choices are, both to prisoners’ experiences of incarceration and to the success of the correctional enterprise. And, of course, prison visitation policies also have direct and profound implications that transcend the prison walls for families and friends of prisoners.

The Ohio and Minnesota Studies

At the October 2012 annual ASCA training, the Yale authors presented their study alongside Gary Mohr, Director of the Ohio Department of Rehabilitation and Correction, and Tom Roy, Commissioner of the Minnesota Department of Corrections.

The Minnesota study, one of the largest and most in-depth of its kind, concluded that prisoners who received visits while incarcerated were substantially less likely to recidivate. Tracking over 16,000 prisoners released from Minnesota prisons between 2003 and 2007,3 the study showed that, when controlling for numerous other factors, prisoners who received visits were 13% less likely to be reconvicted of a felony after release and 25% less likely to have their probation or parole revoked.4 The study also identified administrative policies as one of three major barriers to visitation, alongside the remote location of many facilities and the uncomfortable setting of the visits themselves.5 Additionally, the study concluded that visits from certain people (e.g. fathers, mentors and clergy) had significantly more effect.6

The Ohio study concluded that visitation had a positive impact on prisoner behavior and prison safety. It found a statistically significant relationship between increased visitation and decreased rule infractions, with even one visit found to have a positive effect, and visits from parents or guardians found to be particularly valuable.7

Taken together, the two studies underscore the fact that an increased number of visits to prisoners can have beneficial effects on both prison safety and offender reentry.

The Yale Study: Methodology

Complementing these two empiracle studies, the Yale study allows for state-by-state comparison across a group of common categories of visitation-related policies. In addition to identifying commonalities and variation in several enumerated categories, the study documents outlier policies revealed in the course of research. The Yale authors worked with ASCA to track down difficult-to-find policy documents, and received written feedback from nearly all fifty state departments of corrections to ensure accuracy.
The study also analyzes in more detail the range of approaches that states take to two forms of visitation at opposite ends of the associational spectrum: virtual visitation and overnight family (sometimes called “conjugal”) visitation.

While at least three layers of rules govern prison visitation – administrative regulations (often general grants of rulemaking authority to correctional administrators), policy directives (more detailed rules promulgated by those administrators) and facility-specific rules – the study focuses at the level of statewide policy directives for two primary reasons.8 First, the directives articulate policy more comprehensively than institution-specific rules,9 and in much more detail than most regulations. Second, policy directives are most amenable to systemic assessment, and, where appropriate, reform. Policy directives are issued by a single, common entity – the director of the state’s DOC.

The Yale Study: General Findings

Substantial consistency and significant commonalities exist across all the jurisdictions surveyed. However, there was tremendous variation as well. Visitation is almost uniformly treated as a privilege rather than a right. Some jurisdictions generally restrict visitation, while other states specifically encourage and promote visitation as a core part of the rehabilitative process. Although the various state policies exist on a continuum, these extremes symbolize divergent policy approaches to visitation and suggest key questions for further exploration: Do states that promote and encourage visitation have better or worse outcomes in terms of institutional security or recidivism? To what extent does the general attitude towards visitation articulated in policy directives correlate with actual visitation policy?

No clear regional, geographic or political trends appear to explain variation in policies. One might expect that certain policies – for example, overnight family visits – would exist in a group of states with certain common characteristics. Instead, the states in each category do not appear to have much in common. The nine states that allow for overnight family visits, for example, are not from any one or even two geographic regions, and it is unclear what else of significance California, Colorado, Connecticut, Mississippi, Nebraska, New Mexico, New York, South Dakota and Washington have in common.

Further, while the states often serve as laboratories of policy experimentation, one might expect some harmonization of best practices. If there has been such a harmonization or cross-pollination process, it is not apparent in several key areas. For example, North Carolina allows just one visit per week for a maximum of two hours,10 while New York allows its maximum-security offenders 365 days of visiting per year.11 While South Dakota allows only two people (plus family members) to be placed on a prisoner’s list of approved visitors,12 prisoners in California may list an unlimited number of visitors.13
Some of the key findings from the Yale study presented at the ASCA training conference are as follows:

When to Visit: Twenty-eight jurisdictions have a floor for the minimum number of days or hours visitation must be made available. For example, in Georgia, “[a] minimum of SIX (6) hours shall be allotted each day for visitation periods on Saturdays, Sundays and holidays. Normally, there will be no restrictions placed on the length of visits during the facility’s established visitation periods.”14 Several other states provide for ceilings to visitation hours. Oregon allows only one visit per day per visitor on weekends and holidays;15 Utah allows no more than two hours ...

Maine Prisoner’s Contraband Conviction Vacated

On May 29, 2012, the Maine Supreme Judicial Court reversed a prisoner’s conviction for trafficking in contraband. The Court found it was proper for the trial court to allow a guard to testify about details not contained in her written report of the incident, but held reversal was required ...

Pennsylvania: No Prison Time for Guards Convicted of Abusing Prisoners

A former Pennsylvania prison guard who was convicted on 27 counts of abusing prisoners will serve no prison time of his own, after a state court sentenced him to five years’ probation and six months on house arrest.

Harry Nicoletti, 61, was convicted of numerous counts of official oppression, simple ...

My Life with Lifers, by Dr. Elaine J. Leeder. (E-Books Unbound, 2012). 140 pages, $4.99 (e-book) or $14.95 (paperback)

Book review by John E. Dannenberg

Dr. Elaine Leeder, Dean of the of the School of Social Sciences at Sonoma State University, offers a concise, compassionate view of the life and psyche of California prisoners serving term-life sentences. After a long career that has included volunteering to teach prisoners in ...

Mandatory Lifetime Monitoring a Direct Consequence of Sex Offense Plea Bargain in Michigan

The Michigan Supreme Court has held that mandatory lifetime electronic monitoring is a direct consequence of a plea to first-degree criminal sexual conduct or second-degree criminal sexual conduct. As such, when a defendant enters a guilty or no contest plea, the trial court must inform the defendant that he or ...

Governmental Highway Robbery: Asset Forfeiture and the Pillaging of the American People

This is the problem when police officers and police departments have a financial interest in doing their job. We got rid of bounty hunters because they were not a good thing. This is modern day bounty hunting. – Public Defender John Rekowski

Long before Americans charted their revolutionary course in pursuit ...

$17.75 Million Settlement for Victims of Pennsylvania “Kids for Cash” Scandal

by David M. Reutter

Several of the defendants in a “widespread scheme and subversion of the Luzerne County juvenile justice system” in Pennsylvania have agreed to a $17.75 million settlement to resolve a class-action federal lawsuit. The scheme involved the building of two private juvenile detention centers and payments ...

Virginia Prisoner Pardoned After Accuser Admits She Lied

Everyone in Virginia's criminal justice system knew that Johnathan Christopher Montgomery was innocent of the crimes for which he’d been convicted.

His accuser had recanted her testimony and admitted she lied to police about being molested by Montgomery more than a dozen years earlier. And yet the state ...

Ex-Felons are About to Get Health Coverage

Newly freed prisoners traditionally walk away from the penitentiary with a bus ticket and a few dollars in their pockets. Starting in January 2014, many of the 650,000 prisoners released from prison each year will be eligible for something else: health care by way of Medicaid, thanks to the ...

CCA Admits to Falsified Staffing Records, Violating Contract with Idaho DOC

ON April 11, 2013, the Idaho Department of Correction (IDOC) announced that Corrections Corporation of America, the nation’s largest for-profit prison firm, had acknowledged that employees at the CCA-operated Idaho Correctional Center (ICC) falsified staffing records from at least May through November 2012. As a result, the state paid ...

Utah: Private Company Offers to Pick Up Prison Tab

One of the big efforts by the 2013 Utah legislature was authorizing the Prison Relocation and Development Authority to start taking proposals to relocate the Utah State Prison in Draper and unlock the prime real estate underneath it for commercial development. While estimates put the long-term benefit in the billions ...

Iowa Sex Offender Special Sentence Provisions Interpreted: Time-Served Credit, but Not Earned-Time, Reduces Revocation Term

The Iowa Supreme Court held on May 4, 2012 that earned-time credit for good behavior accelerates the completion of a ten-year special sentence but does not reduce a release revocation term. The Court further held that time served in jail pending a release revocation hearing (jail-time) must be applied to ...

California: Parole Placement of Serial Killer’s Accomplice in Remote County Upheld

On March 13, 2012, the California Court of Appeal upheld a decision by the California Department of Corrections and Rehabilitation (CDCR) to place Loren Herzog, a high-profile offender who had been paroled, in a remote county rather than the county where he last resided or some other, putatively more suitable ...

North Carolina County Conned into Building $100 Million Jail

For evidence that the art of the slick-talking conman is very much alive, witness Guilford County, North Carolina.

The county’s new $100 million, 1,032-bed lockup in downtown Greensboro was built based on spurious claims that the jail population would increase significantly. Voters narrowly approved a bond referendum for ...

Seventh Circuit Vacates Summary Judgment for Nutriloaf Diet

Recognizing that “anal fissures” are “no fun at all,” the Seventh Circuit Court of Appeals held on March 27, 2012 that Wisconsin jail officials were not entitled to summary judgment for imposing an exclusive diet of Nutriloaf on a prisoner.

Milwaukee County Jail (MCJ) policy mandates an exclusive diet of ...

Eighth Circuit Overturns Jury’s $850,000 Verdict for Nebraska Detainee’s Suicide

The Eighth Circuit Court of Appeals has reversed a jury’s verdict in favor of the estate of a pre-trial detainee who committed suicide at Nebraska’s Dodge County Jail. Circuit Judge Kermit E. Bye filed a dissenting opinion that criticized the majority for substituting its judgment in place of ...

Oklahoma Parole Board Members Charged with Violating Open Meeting Act

Oklahoma City District Attorney David Prater announced on March 13, 2013 that all five members of the Oklahoma Pardon and Parole Board (“Board”) had been charged with criminal violations of the state’s Open Meeting Act in connection with some 51 early release requests that the Board considered but did ...

CCA Excludes Shareholder Resolution Requiring Company to Fully Disclose Information about REIT Conversion

Previously, PLN reported that both Corrections Corporation of America (CCA) and GEO Group, the nation’s two largest private prison companies, were converting their corporate structure into real estate investment trusts (REITs), primarily to benefit from the tax advantages that REITs provide. [See: PLN, Jan. 2013, p.42].

Among other ...

No Room for 900 New Washington Prison “Rugs”

“Every day I'm getting emails from staff staff who are concerned about safety,” said Tracey A. Thompson, the Secretary-Treasurer of Teamsters Local 117, which represents about 3,600 Washington Department of Corrections (WDOC) guards. With approximately 16,000 prisoners, Washington state prisons are currently operating at 102 percent of ...

Faulty Background Checks Blamed on Digitized Records, Greedy Amateurs

Whoever said that living in the past is a fruitless endeavor never tried to make money off background checks.

Billions of publicly-available records have resulted in a global army of unskilled, wanna-be detectives who make quick bucks by peddling information obtained from public databases related to arrests, criminal convictions and ...

Prison Health Care Provider under Fire in Illinois

In 2011, the State of Illinois signed a 10-year, $1.36 billion contract with Wexford Health Sources, a for-profit company, to provide medical services to Illinois prisoners. Since the contract went into effect there have been numerous complaints concerning the level of medical care that prisoners are receiving – or rather ...

Lawsuits Filed Over Unrelated Deaths of Two Oregon Prisoners

Just ten days before his release, A 22-year-old autistic Oregon state prisoner died in a segregation cell after injecting himself with an “undetermined drug or toxin,” according to a federal lawsuit filed by his estate and his mother.

On July 21, 2006, Richard Gifford stole about $1,200 from a ...

Muslim Prisoners Challenge Ohio’s Denial of Halal Meals; Pork Producers Protest

In 2011, Abdul-Hamead Awkal, II, 52, and Cornelius Causey, 35, both Muslim prisoners, filed separate lawsuits against the Ohio Department of Rehabilitation and Correction (ODRC), arguing that the ODRC’s refusal to provide halal meals infringed on their religious rights.

“The issue of eating halal meals is especially important to ...

New York: $225,000 Settlement for Prisoner’s Suicide Attempt, Abuse at Rikers Island

In July 2012, the City of New York paid $225,000 to settle a lawsuit that alleged 17 causes of action arising “from a chain of disturbing events” that involved the treatment of a mentally ill prisoner at Rikers Island.

When Robert Fecu was booked into the Anna M. Kross ...

California District Attorney Sued by Former Colleague

On February 29, 2012, former Contra Costa County prosecutor Paul Sequeira filed a lawsuit in superior court seeking damages from Senior Deputy District Attorney Harold W. Jewett, whom he accused of assault and battery. Two years earlier, the two men (both in their fifties) had argued; the argument escalated until ...

Administrative Remedies “Unavailable” when Prisoner under Threat of Intimidation or Retaliation

The Tenth Circuit Court of Appeals has held “that when a prison official inhibits a prisoner from utilizing an administrative process through threats or intimidation, that process can no longer be said to be ‘available’” under the Prison Litigation Reform Act (PLRA). The appellate court set forth a two-prong test ...

California: Lifer Entitled to Credit for Time Served Following Governor’s Erroneous Veto of Parole Grant

Vacating an earlier ruling, on June 29, 2012 the California Court of Appeal, Sixth District, held that while a life-sentenced prisoner is entitled to credit for time served following the governor’s erroneous veto of a decision by the Board of Parole Hearings (BPH) to grant him parole, he is ...

Kentucky DOC May Not Alter Presentencing Custody Credits

The Kentucky Supreme Court has held that the Department of Corrections (DOC) lacks authority to modify a prisoner’s presentencing custody credit calculation.

In 1993, Peter Bard was charged with murdering a deputy sheriff, but the charges were dismissed without prejudice when he was found incompetent to stand trial. He ...

Oregon Parole Board’s Notice-of-Rights Form Violates APA

On June 6, 2012, the Oregon Court of Appeals agreed that a notice-of-rights form (NOR) used by the Oregon Board of Parole and Post-Prison Supervision (Board) constitutes a rule. Since the NOR was not adopted in accordance with the rulemaking procedures of Oregon’s Administrative Procedures Act (APA), the court ...

New York Creates “All Crimes DNA Database”

New York has become the first state in the nation to establish a so-called “all crimes DNA database.”

Like most states, New York already collects DNA samples from convicted felons. On March 19, 2012, however, Governor Andrew M. Cuomo signed into law a bill that permits the collection of DNA ...

Federal Court Limits New York’s Civil Commitment Statute, but Injunction Vacated on Appeal

A decision by the U.S. District Court for the Southern District of New York severely restricted portions of New York’s Sex Offender Management and Treatment Act (SOMTA). A lawsuit filed by Mental Hygiene Legal Service (MHLS) had sought an injunction against enforcement of various provisions of the Act ...

$695,000 Settlement in Discrimination Suit by Deaf Colorado Detainees

The City and County of Denver has paid $695,000 to settle a lawsuit that alleged systemic discrimination against deaf people detained or imprisoned at city and county jails and detention centers.

The lawsuit was filed by three former pre-trial detainees, the Colorado Cross-Disability Coalition (CCDC) and the Colorado Association ...

California State Bar Recommends District Attorney’s Disbarment

The State Bar of California has recommended the disbarment of Del Norte County District Attorney Jon Michael Alexander, 64, who was deemed “not eligible to practice law” until the California Supreme Court makes a final decision in his case.

In an April 5, 2013 ruling, State Bar Court Judge Lucy ...

New York Sex Offender Registration Determination is Exception to Article 78 Review

The New York Court of Appeals, the state’s highest court, has held that a determination as to whether a crime committed in another state triggers New York sex offender registration is reviewable in a proceeding to determine the offender’s risk level.

New York’s Sex Offender Registration Act ...

Sixth Circuit: Disciplinary Conviction Does Not Bar Excessive Force Claim

Prisoners who claim they were assaulted by guards in violation of the Eighth Amendment are not barred from challenging such abuse in court even if they were found guilty of disciplinary charges in connection with the incident, the Sixth Circuit Court of Appeals has held. Moreover, it is erroneous for ...

California: Nine Detainees Charged in Jailhouse Killing; Five Sentenced to Life Terms

In January 2012, an Orange County, California judge sentenced two of nine detainees implicated in the jailhouse killing of a suspected child molester to terms of 15 years to life in prison. Three other detainees also were sentenced to life, while the remaining defendants received sentences ranging from 6 to ...

Oregon: Only Voluntary Surrender Avoids Fugitive Dismissal Rule

In a 4-3 decision, the en banc Oregon Supreme Court held on June 7, 2012 that a defendant’s “surrender” must be voluntary in order to avoid dismissal of a pending appeal under the state’s fugitive dismissal rule.

Pursuant to Oregon Rule of Appellate Procedure (ORAP) 8.05(3 ...

Oregon Jail Guard Gets Three Years for Sex with Prisoner

An Oregon jail guard has been sentenced to three years in prison for having a 19-month sexual relationship with a female prisoner.

Mark W. Samuels, 54, was employed by the Marion County Sheriff’s Office as a guard at the Marion County Jail’s Work Center in Salem. He previously ...

Arkansas Prisoner’s Ad-Seg Reviews Held to be Meaningless; Case Remanded to Recalculate Damages

The Eighth Circuit Court of Appeals has upheld an Arkansas federal district court’s finding that state prison officials denied a prisoner meaningful reviews of his placement in administrative segregation, but ordered a recalculation of the lower court’s damage award.

The case involved Arkansas prisoner David Williams, who began ...

U.N. Considers Revisions to Standard Minimum Rules for Treatment of Prisoners

The U.N. Commission on Crime Prevention and Criminal Justice held its 22nd session in late April 2013. A significant item on the Commission’s agenda was the development of revised Standard Minimum Rules for the Treatment of Prisoners (SMRs). Originally adopted in 1955, SMRs are rules that regulate the ...

News in Brief

Arizona: On December 28, 2012, Safford police officers found state prison guard David Hudson, in uniform, threatening to harm himself while holding a gun near the edge of a bridge. Hudson laid down the gun and surrendered to the officers, and was taken to a medical center for evaluation. “Hopefully ...