Metropolitan News-Enterprise


Tuesday, July 17, 2018


Page 1


Ninth Circuit:

No ‘Deference’ to Jailors Who Chained, Strip Searched Inmates


By a MetNews Staff Writer


The Los Angeles County Sheriff’s Department was not entitled to “deference” in connection with its practice of chaining inmates classified as mentally ill to tables during recreation time subjecting them to humiliating and invasive strip searches, a panel of the Ninth U.S. Circuit Court of Appeals held yesterday.

The plaintiff, disbarred attorney Lecia L. Shorter, will have a second chance at convincing a jury that the treatment she experienced at Century Regional Detention Facility in Lynwood while confined there in 2011 as a pretrial detainee violated her rights.

Circuit Judge Kim M. Wardlaw’s opinion focused primarily on whether Magistrate Judge Jay Gandhi of the Central District of California had erred by giving the jury an instruction derived from the 2010 Ninth Circuit case Norwood v. Vance. The Norwood instruction, as it is known, is:

“In determining whether the defendant(s) violated the plaintiff’s rights as alleged, you should give deference to jail officials in the adoption and execution of policies and practices that in their judgment are needed to preserve discipline and to maintain internal security.”

Unnecessary, Unjustified

Wardlaw explained:

“Shorter presented substantial evidence at trial showing that the jail’s practice of chaining female inmates to a table in the middle of an indoor recreation room and depriving inmates of food and sanitation was an unnecessary and unjustified response to the problem of jail security.”

A key piece of evidence was a letter sent from then-U.S. Attorney André Birotte Jr., now a judge for the Central District of California, to the Los Angeles county counsel in 2014. In the letter, Birotte declared the U.S. Department of Justice’s condemnation of the practice.

The county argued that chaining inmates to tables is necessary because of their violent tendencies, and because of overcrowding and staffing concerns.

Wardlaw dismissed the contention that a potential for violence was relevant, noting that even violent prisoners are entitled to regular recreation. She declared:

“The only justification that the County offered at trial for severely restricting Shorter’s conditions of confinement was a concern about overcrowding and understaffing in the facility. We conclude that the deference instruction should ordinarily not be given when that is the County’s sole justification.”

Stripped and Chained

Shorter also presented evidence that she was subjected, pursuant county policy, to searches after returning from court during which she was forced to strip and was chained to her cell door. Multiple times she was left in that state for three to six hours, in plain view of both male and female guards.

Wardlaw contrasted such search procedures, which she described as “a humiliating and extreme invasion of Shorter’s privacy,” with the brief strip searches upon first arriving at a jail which have been afforded deference by the Supreme Court in the past.

The county has since put a stop to this policy, which the jurist said “supports our conclusion that the search procedure was an exaggerated and unwarranted response to prison security.” Los Angeles county jails now use body cavity scanners to obviate the need for strip searches.

“Here,” Wardlaw declared, “where the County has not offered any reason why it needed to keep mentally ill inmates shackled and unclothed, without food, water, or access to a toilet for hours at a time, we conclude that the County’s search practices were not entitled to deference as a matter of law.”

Fourteenth Amendment

In addition to giving the jury an improper instruction, Gandhi also denied the plaintiff’s request for a new trial on grounds of being misclassified as mentally ill. She claimed the county violated the Fourteenth Amendment by not letting her challenge the classification.

Wardlaw agreed, noting that pretrial detainees such as Shorter “have a right to procedural due process before they are subjected to more severe conditions of confinement than other detainees.”

Shorter had been diagnosed by a social worker as having a mood disorder.

The opinion also vacates Gandhi’s order granting summary judgment for the county on Shorter’s inadequate medical care claim. In doing so, it notes that he did not have the benefit of a 2018 Ninth Circuit case, Gordon v. City of Orange.

The Gordon opinion states that “claims for violations of the right to adequate medical care ‘brought by pretrial detainees against individuals under the Fourteenth Amendment’ must be evaluated under an objective deliberate indifference standard,” and not the Eighth Amendment’s subjective standard.

The case is Shorter v. Baca, 16-56051.

Rina M. Mathevosian of Nelson & Fulton in Los Angeles represented the defendants on appeal. William F. Abrams of Steptoe & Johnson LLP in San Francisco argued for Shorter who retained the firm through the Central District of California’s Pro Bono Civil Rights Panel after starting the litigation pro se.

Shorter, 58, was disbarred in 1996 based on misappropriation of $7,000 in client funds. She owns a real estate consulting firm and is a mediator.

Shorter said yesterday that Sheriff’s Department officials “changed their policy because of my voice.”

She said of the Ninth Circuit decision:

“This was not only a victory for me. It was a for for all women—especially those who have not even been convicted.”

The realtor said she was held for 32 days prior to trial. During that time, she recounted, she was allowed only three showers.

Shorter noted she was permitted 150 hours of “recreation,” which, she explained, meant “you get to be handcuffed and chained to a table and watch television.”

What got her arrested, she related, was going to a business in Beverly Hills at night to pick up her mail in a private mailbox she has had there since 1993. There was a new owner of the business “who didn’t recognize me and called the police,” Shorter said,

Confronted by police, she expressed her indignation, and was charged both with trespass and resisting arrest.

As to the outcome, she said:

“I believe I entered into a plea agreement.


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