Prison Break Correctional Liability Update March 2012

Potential Pitfalls in Relying on the Parole/ Probation Condition of Consent to Search By Susan E. Coleman

People on parole or probation generally have, as one of their conditions of parole/probation, a consent to search by law enforcement. No search warrant, probable cause, or even reasonable suspicion is required for the search, so long as the person is on parole or probation.

In multi-agency operations, often the Police or Sheriff’s Department, or another agency like the FBI or ATF, will ask parole officers or probation Burke, Williams & Sorensen, agents to come along, in order to validate the warrantless search of LLP offers the expertise, any parolees/probationers. However, technically, any law enforcement depth, breadth, and quality officer can use the consent to search provision in order to search a service you need in the area parolee/probationer and the area where he resides. of Correctional Litigation through the specialized But what happens when the search operation goes to the wrong knowledge of our featured house? For example, a parolee lives at an apartment building in unit attorneys. #6, but because of the numbering of the units, or confusion among the officers, the operation ends up entering unit #6A, where no parolee resides. If the officers had gone to the correct unit, they would have the legal right to do a warrantless search because of the parolee’s Susan E. condition of parole consenting to search. But his neighbor, a law- Coleman is a abiding citizen, has no such conditions. Chances are that he or she will partner at the file a lawsuit after her home is searched and she is allegedly law firm of traumatized by the officers’ early morning operation. Burke, Williams & Even in a warrantless search situation such as with a Sorensen, parolee/probationer, officers must have probable cause to believe that where she they are at the parolee/probationer’s correct address. Law specializes in enforcement officers are entitled to rely on the investigation done by law other officers to determine the correct address. For example, if a Los enforcement defense, including Angeles Police Department detective looks up DMV records, CalGang correctional litigation. Ms. records, or other law enforcement databases, and finds an address of Coleman has over 17 years of unit #6A, the other officers and parole agents going along for the litigation experience. She is an operation are entitled to rely upon that information. Conversely, if the associate of the American Board same detective investigated and listed the address as apartment #6, of Trial Advocates (ABOTA) with that would not protect the officers and agents who mistakenly end up over 20 civil jury trials at unit #6A. throughout California. email: [email protected] Officers and agents who act in good faith also may be protected by direct: 213.236.2831 qualified immunity in this situation, particularly when they go along to assist with a joint operation but do not conduct the investigation or surveillance, or have any other involvement prior to the search. The courts often grant qualified immunity in the case of mistakes, such as when a parolee moves but has not updated his address with his parole agent.

If there is time before a search operation occurs, it would be beneficial to check with the parole agent or probation officer of record, to verify the most up-to-date address for the parolee/probationer. If home visits have occurred, the agent/officer can also usually describe the

March 2012 Prison Break Page 1 location in order to help identify the proper unit. Further, if there are no exigent circumstances, and a knock/notice entry is conducted at the door, the person who answers the door could be briefly questioned about his/her name in order to make sure the correct residence is being searched. These measures would help to ensure that the search is upheld as lawful under the Fourth Amendment, and that the officers/agents are entitled to qualified immunity for their actions.

Mitch Wrosch Follow the Money: Deductions from Trust is an associate at Burke. He Accounts has four years By Mitch Wrosch of specialized experience in All state prisoners are issued inmate trust accounts. Because inmates correctional are prohibited from possessing cash, all money that the inmate has is litigation, with maintained in the trust account. This includes wages from work one civil jury assignments, money received from friends and family, Native trial. American casino payments, and legal settlements or damages awarded email: [email protected] at trial, to name a few. Inmates can use this money at canteen to buy direct: 213.236.2814 snacks and cosmetics, or to purchase items from approved outside vendors. The trust account also maintains a record of the debts the inmate has incurred related to his commitment offense and during his incarceration. (These don’t include yard debts for gambling and drugs.) Common debts include restitution, court filing fees, and child support. Prison accounting offices should deduct money from the inmates’ trust accounts to satisfy these debts.

Not all inmate debts are treated equal, however, and some debts must be satisfied before others. Restitution is first in priority, and is the most common debt among inmates, as every state prisoner is charged with restitution. Black’s Law Dictionary defines restitution as “Compensation or reparation for the loss caused by another.” The most common restitution is the Restitution Fine, followed by the Restitution Order. A Restitution Fine is a criminal offender’s debt to society. Under California State law, judges are required to order a restitution fine against every criminal, usually $200. On the other hand, a Restitution Order is the criminal’s debt owed to the victim of his crimes, when the crime causes an economic loss such as a robbery. To satisfy restitution debts, the State currently deducts 50 percent from prison wages and/or trust account deposits according to California Code of Regulations, title 15, § 3097(f). When a prisoner has both a restitution fine and a restitution order imposed by the sentencing court, the State collects the restitution order first under Penal Code §§ 2085.5(b) and (g), and title 15 § 3097(g). Following restitution orders and fines, the next obligation in order is parole revocation restitution fines under Penal Code § 1202.45.

Next in priority are federal court filing fees. Under the Prison Litigation Reform Act (“PLRA”), indigent prisoners who are granted in forma pauperis status in federal civil actions must pay the court filing fee of $350 in full, albeit over time, through gradual deductions made to their trust accounts. Under this provision, Trust Offices are to deduct an initial partial filing fee of 20 percent of the greater of the average monthly deposits to the inmate’s account, or the average monthly balance in the inmate’s account for the 6-month period immediately preceding the filing of the complaint. Following payment of the initial partial filing fee, the inmate is required to make monthly payments of 20 percent of his preceding month’s income credited to his account. Trust Offices are required to make this deduction each time the

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Burke's Correctional amount in the inmate’s account exceeds $10. Needless to say, it may Litigation Team routinely take a while to collect a $350 filing fee. deals with the following issues: But what about awards of costs levied against inmates who have lost First Amendment lawsuits? As discussed in the January edition of Prison Break, following a successful summary judgment motion or trial, defendants Fourth Amendment claims can and should seek reimbursement from the inmate for various costs of unlawful search and incurred during litigation. As discussed in greater detail in that article, seizure seeking recovery of costs serves several important purposes that Eighth Amendment should not be squandered, including sending a message to inmates excessive force and that there are real consequences for filing frivolous lawsuits against deliberate indifference to the Department. However, an informal survey of multiple prisons safety or medical needs within each district of California revealed that the awards of costs Fourteenth Amendment against inmates are rarely being levied on the inmates’ books. The due process apparent reason for this is a lack of consensus among accounting staff as to how to assess the costs on the inmates’ trust account, including Religious claims under the the percentage to levy and what order of priority an award of costs is First Amendment and entitled to. There is no procedure or policy in title 15 or the RLUIPA Department Operations Manual about how to levy an order for costs on Section 1983 claims an inmate trust account, nor does the Penal Code provide any assistance. Thus, once costs have been awarded, and the documents Torts including negligence, have been submitted to the prison accounting office, typically no wrongful death, assault and further action is taken. battery, conversion Class action litigation Consequently, inmates are being spared their obligation to pay these debts, and the State is missing an opportunity to recover money that it Parole and probation issues is owed. To be an effective tool in the fight against inmate litigation, inmates must see that deductions are actually being made from their trust accounts. This cannot be done in the absence of a cohesive policy. For guidance, the State may wish to reference the procedure followed by the Federal Bureau of Prisons, which places judgments in favor of the United States Government (such as in an award of costs following judgment in its favor) as fourth in priority, following: (1) special assessments (similar to restitution fines); (2) court ordered restitution; and (3) state or local court obligations, such as child support and alimony. The BOP Financial Responsibility Program Statement 5380.08 is available online at www.bop.gov.

Kristina Crime Doesn't Pay for Inmates’ Book Deals Doan By Kristina Doan Gruenberg Gruenberg is an From Charles Manson to Stanley “Tookie” Williams, many inmates associate at have used their time in prison to write about their crimes and their Burke. Prior experiences behind bars. While legislatures across the country have to joining attempted to prevent convicted criminals from selling the rights to the firm, she served as a their stories and/or profiting from the sales, several of these laws have judicial law been struck down, including in California. Fortunately, state prison clerk in the District of Columbia, regulations against conducting business prevent inmates from profiting handling civil and criminal cases from their crimes. including many inmate complaints. In 1977, New York was the first state to pass a law designed to reclaim email: [email protected] money that convicted criminals earn from works such as books or direct: 213.236.2805 screenplays about their crimes, and give the proceeds to their victims or their victims’ family members. Several states followed, and these laws became known as “Son of Sam” laws because New York passed the law in response to reports that serial killer David Berkowitz (better known as the “Son of Sam” killer) was being offered substantial amounts of money for the rights to his story.

March 2012 Prison Break Page 3 However, in 1991, the United States Supreme Court struck down New York’s Son of Sam law in the case Simon & Schuster v. New York Crime Victims’ Board. Although the Court acknowledged that the state had a compelling interest in ensuring that victims are compensated and preventing criminals from profiting from their crimes, the Court held that the law was too broad and over-inclusive. The Court noted that New York’s law applied to all works that even briefly mentioned a crime and were tangential to the work as a whole. As an example, the Court pointed out that New York’s law would have prevented the publication of such works as The Autobiography of Malcolm X and Thoreau's Civil Disobedience. Additionally, the law was overly broad

because it applied even if there had been no conviction for the crime.

After Simon & Schuster, several states amended their Son of Sam laws, including California. Yet, the California Supreme Court struck down California’s “Son of Sam” type law in the 2002 case, Keenan v. Superior Court of Los Angeles County. The Court found that, even At Burke, the broad range of though California’s law only applied to convicted felons and required our areas of expertise more than a “passing reference,” it was still too broad. The Court mirrors California's own stated that California’s law discourages a wide range of works that vitality, with respected, proven practices in: have no relationship to exploiting criminal activity, such as writings about redemption or warnings to others about consequences of crime Education Law based on personal experience. Labor & Employment While “Son of Sam” laws continue to be challenged across the country Litigation (currently over 40 states have such laws), prison regulations can help Public Law address this matter. California Code of Regulations, title 15, § 3024 prohibits inmates from actively engaging in business while they are Real Estate & Business Law incarcerated. In Dale Bretches v. Richard Kirkland, the Ninth Circuit affirmed that this regulation applies to book deals. This regulation is more palatable to the courts because it prohibits business activity, as opposed to regulating the content of speech.

Dale Bretches, a validated Aryan Brotherhood prison gang member, ran a dog-breeding business while he was incarcerated. Bretches received national attention when one of the Presa Canario dogs he placed with two lawyers fatally mauled a woman in San Francisco. Prison officials banned Bretches from publishing his book, “Dog O’War,” and from distributing it within the prison system. Bretches argued that book publishing does not constitute a business activity. However, the Ninth Circuit held that this argument fails under the plain language of the regulation because the royalty payments Bretches would receive from the self-publishing company iUniverse qualify as a “revenue generating or profit making activity” under § 3024.

Recently, Bretches’ case settled. Bretches was permitted to publish the book, but Wardens may ban the “Dog O’War” book at their institution if they can show that the book poses a specific security concern. Importantly, Bretches will not be seeing any profits from sales of the book. Instead, based on the Ninth Circuit’s ruling affirming the section 3024 regulation prohibiting inmates from

generating revenue, any profits from the publication will go to a charity.

March 2012 Prison Break Page 4 Martin Kosla Inmate Attire – Could Pink be the New Blue? is a senior By Martin Kosla associate who practiced for A pink-colored Polo Ralph Lauren shirt worn by a man on a private golf 4 years in course will not raise any eye-brows from the other players. Neither Australia will a pink Hugo Boss tie worn by a hotshot Wall Street broker. But it before appears that dressing an inmate in that exact same color may be moving to California in deemed “cruel and unusual” punishment. 2006. Martin has been defending law The Ninth Circuit recently issued an opinion relating to a lawsuit filed enforcement in civil rights cases against “America’s toughest sheriff,” Sheriff Joe Arpaio. The Arizona since 2008. He served in the Maricopa County Sheriff has won points with voters for housing Royal Australian Artillery before inmates in canvas tents during Phoenix’s triple-digit summer heat, becoming an attorney, and has comparing their housing to that of the troops in Iraq, dressing them in black belts in karate and old-time striped jail uniforms, reinstating the good ol’ chain gang… and taekwondo. making inmates wear pink underwear. email: [email protected] direct: 213.236.2810 According to the facts of the lawsuit, Eric Vogel, a 36-year-old recluse who lived with his mother, was arrested by sheriff’s deputies on suspicion of burglary after he wandered out of his mother’s Arizona home in November 2001. After a mental health screening at the Maricopa County jail, Vogel was ordered to “dress out” from his civilian clothes to prison garb approved by the Sheriff, which included pink underwear. After he refused to do so, Vogel was held down and stripped naked by four deputies, who forced him into the pink underwear. Vogel was released a couple of days later. Less than a month after his release, Vogel was riding in his mother’s car when she had a minor accident. After the sheriff's deputy told him there was an outstanding warrant for his arrest, Vogel fled the scene. He ran four or five miles in the heat before dropping dead of a heart attack. Vogel’s mother, as representative of his estate, sued the County of Maricopa and Sheriff Joe Arpaio, alleging constitutional violations.

At trial, the District Court judge refused to allow Vogel’s sister, Yvon Wagner (who became the estate’s representative after Vogel’s mother died) to testify about Vogel's delusional belief that he had been raped during the dressing struggle. The trial judge also refused to allow two medical examiners to offer their opinions that the humiliating pink underwear was a “likely” factor in Vogel’s fatal attack of arrhythmia. The jury returned a verdict for the Sheriff and the County.

Vogel filed an appeal with the Ninth Circuit Court of Appeals. The Ninth Circuit reversed the judgment and remanded the case back to the district court. Two of the three judges were of the view that the exclusion of testimony showing Vogel’s state of mind was both error and prejudicial to the plaintiff. It was equally error and prejudicial to exclude the experts’ opinions based on that testimony. In particular, the majority noted that “[w]hen a color of such symbolic significance is selected for jail underwear, it is difficult to believe that the choice of color was random.” The judges stated that “[g]iven the cultural context, it is a fair inference that the color is chosen to symbolize a loss of masculine identity and power, to stigmatize the male prisoners as feminine.”

While the parties had not raised the question of whether the dress-out procedure is in every case a violation of due process, the majority held that, when applied to persons not convicted of any crime (such as Vogel), “the dress-out in pink appears to be punishment without legal justification.”

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We'd Appreciate Your The dissenting judge was of the view that “Wagner intended to testify Feedback! that Vogel was agitated, because he believed he was being raped and the officers were dressing him in pink underwear for a sex party.” If you would like to see any Because this was hearsay (testimony offered for its truth) and thus specific topics addressed in inadmissible, the dissenting judge agreed with the district court’s future issues, please let us ruling to exclude the testimony. know. Also, if you know other people who would be interested But, according to a recent interview with sheriff’s official, the jails in reading this newsletter, let us started dyeing the jail-issued underwear in the 1990s as a way to know and we'll add them to the discourage the detainees from taking home the undergarments after distribution list! they were released from custody. It appears that pink was simply an undesirable color for criminals to steal. (And if the color should happen to emasculate a rapist or murderer, would that be a bad thing?)

Because of this questionable decision by the Ninth Circuit, which seems to stem from a delusion by Vogel, pink is not likely to become the new blue for inmates.

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