WHO PAYS FOR JAIL RAPE? Under ?qualified immunity,? often no one.

A federal appeals court issued a ruling earlier this month in a Texas case that helps explainwhy so many prison or jail inmates are sexually assaulted by their guards and why so little is doneabout it. It’s not just lax training and oversight within facilities. It’s not justpoor recruitment practices. It’s also layer upon layer of nearly insurmountable legalstandards crafted over time by judges and legislators to protect corrections officers, theirsupervisors, and, ultimately, local budgets.

Consider the case of Ezmerelda Rivera. In December 2014 she and her husband were arrested forpublic intoxication and driving while intoxicated. The car was pulled over around 1 a.m. They weretaken to the Hale County Jail where they encountered Manuel Fierros, the officer in charge thatnight. Rivera first was taken by a female guard to change clothes — orange scrubs with nounderwear. Then Fierros took over. Now it was about 2:30 a.m. He led Rivera to a room in the jailthat he knew was not monitored by video surveillance — a room used by attorneys to talkprivately with their clients — where he forced her repeatedly to perform oral sex on him.

They were alone inside that room for nearly one hour. No one came to check on Rivera. She wasreleased the next day. When she filed a complaint with the Texas Rangers she was told that Fierroshad confessed to his misconduct. Within days he was arrested and charged with “violating thecivil rights of a person in custody through sexual activity,” a felony that carries atwo-year maximum prison term. Fierros was promptly released on bail. Nine months later, in August2015, he pleaded guilty. He was given three years of probation and was able to avoid therequirement to register as a sex offender. Fierros also was barred from serving again as a guard.Rivera, in the meantime, filed a federal civil rights lawsuit against Fierros and his bosses at thejail.

What Rivera did not know when she was taken to that jail is that there were questions aboutFierros’ suitability to be a prison guard even before he was hired by Hale County in 2012.After he applied for the job prison officials learned that he twice had been arrested as a15-year-old for “indecency with a child by sexual conduct.” When they inquired of thelocal prosecutor they discovered no one knew anything about what had happened to the two cases. Butno investigation ensued. Fierros was never tried or convicted nor even asked by jail officials toexplain those two arrests. Instead, Fierros was hired and given the standard training all newguards receive — training that included warnings about not sexually assaulting inmates.

What Rivera also did not know when she was taken to the Hale County jail that night is that fivemonths earlier a senior guard at the jail had watched from outside a jail cell as a female inmateperformed a sexual act on herself. That episode was caught on the jail’s video surveillancesystem and the guard was allowed to resign rather than be fired. Jail officials did not change anypolicies or procedures in response to the incident nor did they require any staff members toundertake any additional sex assault training. Nor did they ensure that all areas within the jailwere under video surveillance. Instead, they put up a poster in a room of the jail that said:“Sex with inmates, it’s a felony.”

In short, Rivera’s lawyers told a federal trial judge in March 2015 when they filed suitfor money damages, Hale County jail officials knew they had a problem and did virtually nothing toalleviate the risk to inmates like Rivera. The defendants promptly moved to dismiss the case,arguing that the doctrine of “qualified immunity” shielded them from any civilliability. They had done enough, they told the judge, to warrant legal protection. The judge agreedand, on July 6th, so did a unanimous panel of the 5th U.S. Circuit Court of Appeals.

“Qualified immunity” is designed to protect public officials against monetarypunishment for mistakes they make in the performance of their duties. Officials can actnegligently, even recklessly, toward those in their care without having to pay a price for it. Theidea is that public officials, and the local government agencies that employ them, could berendered bankrupt if they could be successfully sued for every mistake or act of negligence.Immunity today is construed so broadly that it can shield from financial responsibility those whoengage in egregious behavior.

If Rivera had been raped by an employee of a department store or a private medical practice thelaw would have assured her of a more even playing field. Qualified immunity does not extend toprivate actors (although the Supreme Court ruled five years ago that it can be extended to privatecitizens who are serving as agents of public officials as they would be in the case of privateprison employees). But when a public official asserts the defense of “qualifiedimmunity,” the law puts the burden of proof on the plaintiff. Judges often set up evidentiarystandards that are nearly insurmountable for plaintiffs to meet, as the Rivera case helpsdemonstrate. She sued the guard who sexually assaulted her, his supervisors and the county. Thedecision rendered by the 5th Circuit focused solely on those supervisors.

(The other parts of the case, against the former guard and the county, still are pending.Because he committed the act in question, Fierros won’t be able to use the same toughstandards his supervisors have used).

The first argument Rivera made was that Fierros’ bosses showed “deliberateindifference” when they hired him without adequately investigating the sex crimes for whichhe was arrested. “Deliberate indifference” exists, the law says, “where adequatescrutiny would lead a reasonable supervisor to conclude that the plainly obvious consequences ofthe decision to hire would be the deprivation of a third party’s constitutionalrights.” There must be, the Supreme Court has added, “a strong connection between thebackground of the particular applicant and the specific violation alleged.” The adjectives— “adequate,” “reasonable,” “plainly obvious,”“strong” — leave a lot of room for interpretation, and the courts tend tointerpret for the defense.

In response to Rivera’s complaint, the 5th Circuit recited a litany of cases in whichpolice or prison supervisors were not held liable even though a “reasonable” personmight conclude they had been “deliberately indifferent” in their hiring decisions. Apolice officer with a criminal record who later used excessive force? Too tenuous a link. A cop whosexually abused citizens during traffic stops and had a pre-employment record of“aggressive” behavior? Too ambiguous a connection. A jailer who forced an inmate toperform oral sex on him had previously been fired by a school district for making improper advancesto high school students? “It would have required ‘an enormous leap to connect 'improperadvances’ toward female students to the sexual assault,'” the 5th Circuitconcluded.

“Fierros’ prior arrests for indecency with a child by sexual contact ‘may havewell have made him an extremely poor candidate’ for a position as a jailer,” the 5thCircuit explained, “… but Fierros’ juvenile record provided no clear detailregarding the alleged offenses…it is entirely possible that he was arrested simply forengaging in uncoerced sexual activity with another minor.” A jury “could not find thata plainly obvious consequence of hiring Fierros was that he would sexually assault adetainee,” the court ruled.

The other part of Rivera’s claim focused on the poor training and supervision within theHale County jail. She alleged that officials should not have continued to allow male guards to takefemale detainees into rooms without video surveillance. She argued that the lone poster mounted inthe jail following the July 2014 sexual misconduct was hardly enough to send a sufficient messageto guards. But here, too, the legal standards devised by judges generate near insurmountableobstacles. Plaintiffs like Rivera must prove that supervisors’ “continued adherence toan approach that they know or should know has failed to prevent tortious conduct by employees mayestablish the conscious disregard for the consequences.” “May” and“conscious” are qualifiers judges lean on to protect public officials.

In response to Rivera’s claims, Fierros’ bosses said that the guard had completedsome training, from the Texas Commission on Law Enforcement, and that he had signed a statement inOctober 2012 in which he affirmed that he understood “there is to be no contact of a sexualnature between myself and any person incarcerated at the Hale County Jail.” This training,alone, was sufficient to protect Fierros’ supervisors. “Simply contending that more orbetter training would have prevented the assault does not state a claim,” the trial judge inthe case concluded. The 5th Circuit agreed, and in doing so shed light on how the law disfavorseven those with meritorious claims.

Unlike the trial judge in the case, the federal appeals court ruled that a jury “couldconclude” that Hale County officials “did not constitute an adequate response to theserious incident of sexual abuse that had recently transpired in the jail.” But then thejudges denied Rivera relief anyway. She did not have a “clearly established”constitutional right to be free from being raped in jail because at the time of her rape herjailers had no reason to know that they had a constitutional duty to provide sufficient training toprison guards. Hale County officials knew or should have known they had to have some training onsexual abuse; they didn’t necessarily know that the training was required to be competent oreffective.

The perverse incentives in these immunity cases have become worse over the past 30 years, saysJennifer Laurin, a professor at the University of Texas School of Law. Starting in 1987, she toldme last week, the Supreme Court has instructed lower courts to perform the qualified immunityanalysis “in a way that takes account of the very particular facts facing officials”and to look backward at what those officials did or did not do. The legal standards create noincentives for prison or jail officials to take specific proactive measures “that courts havenot yet considered,” Laurin says, a problem compounded by the lack of clarity judges oftengive to help officials ensure that they are doing the best they can to prevent future misconduct.“That happened here,” she says. “Even though the judges made very unfavorablecomments about the defendants' decisions, it is still not clear — for the next defendants— whether this is unconstitutional.”

Message from Executive Director Laura A. Ahearn: Parents for Megan's Law and the Crime VictimsCenter provides prevention education, advocacy, counseling and other valuable support services tochild and adult victims of sexual assault and to all victims of violent crime. Please visit ourwebsite at www.parentsformeganslaw.org for news, information and resources in your community.

https://www.themarshallproject.org/2017/07/17/who-pays-for-jail-rape#.bpt8IAiNn

A federal appeals court issued a ruling earlier this month in a Texas case that helps explainwhy so many prison or jail inmates are sexually assaulted by their guards and why so little is doneabout it. It’s not just lax training and oversight within facilities. It’s not justpoor recruitment practices. It’s also layer upon layer of nearly insurmountable legalstandards crafted over time by judges and legislators to protect corrections officers, theirsupervisors, and, ultimately, local budgets.

Consider the case of Ezmerelda Rivera. In December 2014 she and her husband were arrested forpublic intoxication and driving while intoxicated. The car was pulled over around 1 a.m. They weretaken to the Hale County Jail where they encountered Manuel Fierros, the officer in charge thatnight. Rivera first was taken by a female guard to change clothes — orange scrubs with nounderwear. Then Fierros took over. Now it was about 2:30 a.m. He led Rivera to a room in the jailthat he knew was not monitored by video surveillance — a room used by attorneys to talkprivately with their clients — where he forced her repeatedly to perform oral sex on him.

They were alone inside that room for nearly one hour. No one came to check on Rivera. She wasreleased the next day. When she filed a complaint with the Texas Rangers she was told that Fierroshad confessed to his misconduct. Within days he was arrested and charged with “violating thecivil rights of a person in custody through sexual activity,” a felony that carries atwo-year maximum prison term. Fierros was promptly released on bail. Nine months later, in August2015, he pleaded guilty. He was given three years of probation and was able to avoid therequirement to register as a sex offender. Fierros also was barred from serving again as a guard.Rivera, in the meantime, filed a federal civil rights lawsuit against Fierros and his bosses at thejail.

What Rivera did not know when she was taken to that jail is that there were questions aboutFierros’ suitability to be a prison guard even before he was hired by Hale County in 2012.After he applied for the job prison officials learned that he twice had been arrested as a15-year-old for “indecency with a child by sexual conduct.” When they inquired of thelocal prosecutor they discovered no one knew anything about what had happened to the two cases. Butno investigation ensued. Fierros was never tried or convicted nor even asked by jail officials toexplain those two arrests. Instead, Fierros was hired and given the standard training all newguards receive — training that included warnings about not sexually assaulting inmates.

What Rivera also did not know when she was taken to the Hale County jail that night is that fivemonths earlier a senior guard at the jail had watched from outside a jail cell as a female inmateperformed a sexual act on herself. That episode was caught on the jail’s video surveillancesystem and the guard was allowed to resign rather than be fired. Jail officials did not change anypolicies or procedures in response to the incident nor did they require any staff members toundertake any additional sex assault training. Nor did they ensure that all areas within the jailwere under video surveillance. Instead, they put up a poster in a room of the jail that said:“Sex with inmates, it’s a felony.”

In short, Rivera’s lawyers told a federal trial judge in March 2015 when they filed suitfor money damages, Hale County jail officials knew they had a problem and did virtually nothing toalleviate the risk to inmates like Rivera. The defendants promptly moved to dismiss the case,arguing that the doctrine of “qualified immunity” shielded them from any civilliability. They had done enough, they told the judge, to warrant legal protection. The judge agreedand, on July 6th, so did a unanimous panel of the 5th U.S. Circuit Court of Appeals.

“Qualified immunity” is designed to protect public officials against monetarypunishment for mistakes they make in the performance of their duties. Officials can actnegligently, even recklessly, toward those in their care without having to pay a price for it. Theidea is that public officials, and the local government agencies that employ them, could berendered bankrupt if they could be successfully sued for every mistake or act of negligence.Immunity today is construed so broadly that it can shield from financial responsibility those whoengage in egregious behavior.

If Rivera had been raped by an employee of a department store or a private medical practice thelaw would have assured her of a more even playing field. Qualified immunity does not extend toprivate actors (although the Supreme Court ruled five years ago that it can be extended to privatecitizens who are serving as agents of public officials as they would be in the case of privateprison employees). But when a public official asserts the defense of “qualifiedimmunity,” the law puts the burden of proof on the plaintiff. Judges often set up evidentiarystandards that are nearly insurmountable for plaintiffs to meet, as the Rivera case helpsdemonstrate. She sued the guard who sexually assaulted her, his supervisors and the county. Thedecision rendered by the 5th Circuit focused solely on those supervisors.

(The other parts of the case, against the former guard and the county, still are pending.Because he committed the act in question, Fierros won’t be able to use the same toughstandards his supervisors have used).

The first argument Rivera made was that Fierros’ bosses showed “deliberateindifference” when they hired him without adequately investigating the sex crimes for whichhe was arrested. “Deliberate indifference” exists, the law says, “where adequatescrutiny would lead a reasonable supervisor to conclude that the plainly obvious consequences ofthe decision to hire would be the deprivation of a third party’s constitutionalrights.” There must be, the Supreme Court has added, “a strong connection between thebackground of the particular applicant and the specific violation alleged.” The adjectives— “adequate,” “reasonable,” “plainly obvious,”“strong” — leave a lot of room for interpretation, and the courts tend tointerpret for the defense.

In response to Rivera’s complaint, the 5th Circuit recited a litany of cases in whichpolice or prison supervisors were not held liable even though a “reasonable” personmight conclude they had been “deliberately indifferent” in their hiring decisions. Apolice officer with a criminal record who later used excessive force? Too tenuous a link. A cop whosexually abused citizens during traffic stops and had a pre-employment record of“aggressive” behavior? Too ambiguous a connection. A jailer who forced an inmate toperform oral sex on him had previously been fired by a school district for making improper advancesto high school students? “It would have required ‘an enormous leap to connect 'improperadvances’ toward female students to the sexual assault,'” the 5th Circuitconcluded.

“Fierros’ prior arrests for indecency with a child by sexual contact ‘may havewell have made him an extremely poor candidate’ for a position as a jailer,” the 5thCircuit explained, “… but Fierros’ juvenile record provided no clear detailregarding the alleged offenses…it is entirely possible that he was arrested simply forengaging in uncoerced sexual activity with another minor.” A jury “could not find thata plainly obvious consequence of hiring Fierros was that he would sexually assault adetainee,” the court ruled.

The other part of Rivera’s claim focused on the poor training and supervision within theHale County jail. She alleged that officials should not have continued to allow male guards to takefemale detainees into rooms without video surveillance. She argued that the lone poster mounted inthe jail following the July 2014 sexual misconduct was hardly enough to send a sufficient messageto guards. But here, too, the legal standards devised by judges generate near insurmountableobstacles. Plaintiffs like Rivera must prove that supervisors’ “continued adherence toan approach that they know or should know has failed to prevent tortious conduct by employees mayestablish the conscious disregard for the consequences.” “May” and“conscious” are qualifiers judges lean on to protect public officials.

In response to Rivera’s claims, Fierros’ bosses said that the guard had completedsome training, from the Texas Commission on Law Enforcement, and that he had signed a statement inOctober 2012 in which he affirmed that he understood “there is to be no contact of a sexualnature between myself and any person incarcerated at the Hale County Jail.” This training,alone, was sufficient to protect Fierros’ supervisors. “Simply contending that more orbetter training would have prevented the assault does not state a claim,” the trial judge inthe case concluded. The 5th Circuit agreed, and in doing so shed light on how the law disfavorseven those with meritorious claims.

Unlike the trial judge in the case, the federal appeals court ruled that a jury “couldconclude” that Hale County officials “did not constitute an adequate response to theserious incident of sexual abuse that had recently transpired in the jail.” But then thejudges denied Rivera relief anyway. She did not have a “clearly established”constitutional right to be free from being raped in jail because at the time of her rape herjailers had no reason to know that they had a constitutional duty to provide sufficient training toprison guards. Hale County officials knew or should have known they had to have some training onsexual abuse; they didn’t necessarily know that the training was required to be competent oreffective.

The perverse incentives in these immunity cases have become worse over the past 30 years, saysJennifer Laurin, a professor at the University of Texas School of Law. Starting in 1987, she toldme last week, the Supreme Court has instructed lower courts to perform the qualified immunityanalysis “in a way that takes account of the very particular facts facing officials”and to look backward at what those officials did or did not do. The legal standards create noincentives for prison or jail officials to take specific proactive measures “that courts havenot yet considered,” Laurin says, a problem compounded by the lack of clarity judges oftengive to help officials ensure that they are doing the best they can to prevent future misconduct.“That happened here,” she says. “Even though the judges made very unfavorablecomments about the defendants' decisions, it is still not clear — for the next defendants— whether this is unconstitutional.”

Message from Executive Director Laura A. Ahearn: Parents for Megan's Law and the Crime VictimsCenter provides prevention education, advocacy, counseling and other valuable support services tochild and adult victims of sexual assault and to all victims of violent crime. Please visit ourwebsite at www.parentsformeganslaw.org for news, information and resources in your community.

https://www.themarshallproject.org/2017/07/17/who-pays-for-jail-rape#.bpt8IAiNn