SubjecUse of pepper spray on mentally ill inmates unconstitutional
The ruling is at: http://www.ca11.uscourts.gov/opinions/ops/200911658.pdf - - - - - http://www.law.com/jsp/article.jsp?id=1202471282423&src=EMC-Email&et=editorial&bu=Law.com&pt=LAWCOM%20Newswire&cn=nw20100831&kw=11th%20Circuit%3A%20Chemical%20Agents%20May%20Not%20Be%20Used%20to%20Subdue%20Prisoners August 31, 2010 11th Circuit: Chemical Agents May Not Be Used to Subdue Prisoners John Pacenti | Daily Business Review The inmates were derided as "frequent fliers" by the guards at Florida State Prison, a caustic reference to mentally ill inmates who were gassed for their disruptive behavior, only to be shipped for treatment to a nearby prison. These prisoners would return after they were stabilized, only to have the cycle repeat itself. The cycle may be over after the 11th U.S. Circuit Court of Appeals upheld a Jacksonville, Fla., judge's ruling that the use of pepper spray and other chemical agents by guards against mentally ill inmates is unconstitutional. Now the chance of getting treatment for these individuals in the prison setting -- as opposed to abuse -- may increase, said Randall Berg, president of the Florida Justice Institute and the attorney for two inmates who took the issue to trial. The ruling gives the state Corrections Department no room for cover in future lawsuits on behalf of gassed inmates. The department can no longer use qualified immunity as a defense for their discretionary actions in prison operations, Berg said. "What it really does is establish a constitutional benchmark that in any future gassing of inmates, correction officers and Department of Corrections can't raise qualified immunity," Berg said. The appellate panel castigated the department for questioning the fact pattern in the treatment of plaintiffs Michael McKinney and Jeremiah Thomas. They were gassed often by guards who were not trained to tell the difference between recalcitrant inmates and mental breakdowns, the appellate court noted. The gas often failed to control an inmate's unwanted behavior, such as banging on doors or throwing feces, but exacerbated it. The chemicals were administered from a fire extinguisher-like device through a small flap into a 7-by-9-foot cell, sometimes burning the inmate. McKinney is a schizophrenic who has been in the prison system since he was a teenager. Serving time for attempted murder, he hallucinates regularly and is extremely violent. The gassing had no effect on his behavior except to cause excruciating pain, U.S. District Court Judge Timothy Corrigan found after a five-day bench trial in 2008. It was the first time a judge had found the use of chemical restraints against mentally ill prisoners was unconstitutional. The 11th Circuit panel consisting of Judges Susan Black, Frank Hull and R. Lanier Anderson, a senior judge, agreed in an Aug. 20 decision, affirming Corrigan's ruling. "It is only a prison official's subjective deliberate indifference to the substantial risk of serious harm caused by such conditions that gives rise to an Eighth Amendment violation," Anderson wrote for the unanimous panel. The 79-page opinion criticized the state for arguing chemical agents can never constitute "unnecessary or brutal treatment in violation of the Eighth Amendment" because the alternative is brutal physical restraint. "The defendants even go so far as to argue that the use of chemical agents, where administered properly, even when administered against a decompensated inmate, 'do not exceed the normal discomfort of the prison environment.' We reject both of these arguments in turn," Anderson wrote. He said it was "inexcusable" for attorneys representing the state to use the excessive force argument on the appellate level when it wasn't argued during trial. McKinney, the appellate court noted, was gassed 36 times from 2001 to 2007 for banging or kicking on cell door, yelling, throwing feces or refusing to remove his arm from the food flap on his cell. He was sent intermittently to the nearby Union Correctional Institution for short-term psychological care. While there, McKinney would improve, return to Florida State Prison and be subject to more gassing. The question now is whether the state, which fought the lawsuit vigorously, will ask for en banc consideration by the full 11th Circuit or file a possible appeal to the U.S. Supreme Court. Berg said it is unlikely the 11th Circuit would overturn a panel as it did earlier in the month in a child pornography case. He said Corrigan is a respected conservative district judge. The Florida solicitor general's office, which argued the appeal, did not respond to a call for comment by deadline. The department refused to mediate the lawsuit to come up with a remedy or craft a new policy when Corrigan decided in favor of McKinney and Thomas. "They fought this tooth and nail," Berg said. The ruling is an evolution in the rights of mentally ill inmates dating back to the death of Frank Valdes at the same prison. Valdes, a death row inmate convicted of murdering a prison guard, was killed in 1999 during a cell extraction by a team of guards that entered his cell. Three guards were acquitted of murder, and a civil lawsuit filed by the Valdes family was eventually settled. After Valdes' death, the department turned to chemical agents to subdue unruly inmates as opposed to cell extractions and decided to house all mentally ill inmates at the same prison. Civil rights attorneys later filed a class action suit claiming prolonged solitary confinement constituted cruel and unusual punishment. The lawsuit produced a settlement in 2001 calling for more humane conditions for mentally ill inmates subject to "close management." "During the course of that litigation, we found out the department was gassing these mentally ill guys, predominately at FSP," Berg said. "These guys would bang on their cell door, and they would be acting out the manifestation of their mental illness, and the guards would just let loose with the pepper spray." After failing in a class action on behalf of gassed mentally ill inmates, 12 inmates filed a civil suit seeking damages and an injunction to stop the practice. Ten inmates settled, but McKinney and Thomas took the case to trial. Berg said it behooves the department to ramp up mental health treatment and train their officers instead of just gassing mentally ill inmates. "Then these guys would perform the way they want them to," he said. "Unfortunately with the closing of mental institutions throughout the country, the prison has become the dumping ground," he said. "For a large number of mentally ill, instead of getting treatment, we just lock them up in solitary confinement." 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