Articles Posted in Civil Rights

This week The Oregonian carried the extraordinary story of a man who “was arraigned on 34 charges for allegedly recording colleagues at the Banana Republic Factory Store” on NE Cascades Parkway near the Portland airport. The 34-year-old allegedly placed hidden cameras in the women’s restroom at the store and recorded video of dozens of partially naked women, including children.

What is especially shocking is the revelation that the man had faced similar allegations at his previous job as a pharmacist with Kaiser Permanente. Last month the suspect “was arraigned on 71 similar charges for allegedly recording 51 men and women using the unisex bathrooms and changing rooms at the Kaiser Permanente facility” on Portland’s Northeast 138thAvenue. The man was fired after another employee “found a camera” in one of the bathrooms.

The article notes that some of the employees from the Banana Republic store are considering a civil suit. Two areas bear particularly close examination. First, there is the question of whether the Banana Republic store did everything it could to prevent this man, or anyone else, from invading employees’ privacy by installing secret cameras in the restroom. We need to know more about the nature of the cameras, where they were positioned, how they operated and how long they were in place. Most importantly, we need to consider what the store could have done to prevent this and other forms of employee misconduct. The U.S. Department of Labor’s website on workplace health and safety (see link below) lays out the standards all employers are expected to uphold. Difficult questions clearly need to be asked about how the store managed to get itself into this position in the first place.

A recent investigation by The Oregonian found “that county employees had received reports of serious neglect or abuse” at what the newspaper describes as the city’s “premier mental health facility,” the Unity Center for Behavioral Health in Northeast Portland. These reports began to come in “within months of its opening in 2017.” In 16 cases “a police report should have been filed but none was found.”

This scandal fits a wider pattern that I have been writing about for several years. In day care centers, prisons and, now, mental health facilities people who have a legal obligation to watch for abuse are failing to do so. As I noted in a blog more than a year ago, laws that we often think of as focused on child abuse are, in fact, designed to protect vulnerable people more generally. Section 419B.005 of Oregon’s legal code sets standards for care and extends these to all forms of abuse and neglect. This state statute compliments 42 USC 1983, part of the federal legal code. Together, they make protection from abuse a civil right.

It offers little reassurance that once the cases were uncovered a spokesman for the Multnomah County Sheriff’s office told The Oregonian “thankfully that number (16) is relatively low compared to what we fear we may find.”

A lengthy article published last week in the St. Helens Chronicle details a disturbing case of alleged prison abuse. According to the newspaper “a former inmate has requested a jury trial, seeking $500,000 for damages after an encounter with a K-9 while imprisoned in Columbia County jail this year.”

The case was filed in federal court earlier this month. Like other cases of prison abuse that I have written about in recent months it is a civil action built around 42 United States Code 1983. This statute requires state and local governments to enforce the rights that inmates and others are guaranteed under the eighth amendment to the US Constitution. 42 USC 1983 says that all people are entitled to “any rights privileges or immunities secured by the Constitution and laws” and that state and local governments must acknowledge and enforce these rights. As The Chronicle notes, this interpretation of the statute was upheld in a 1978 US Supreme Court Ruling (Monell v New York City Department of Social Services 436 US 658).

The St Helens case alleges that deputies at the county jail ordered a police dog to attack a prisoner in his cell, claiming falsely that the inmate was violent and uncooperative when, in fact, he had merely insulted a guard. According to the suit “the county and its officials… failed to provide adequate training to sheriff’s deputies with respect to constitutional limits on the use of force, detention, mental health, and inmate cell extractions and failed to adequately discipline or retrain officers involved in misconduct,” the newspaper reports. It also alleges that the deputies conspired to cover up their actions by filing false reports.

Last month I wrote about private prison companies in a blog focused on prisoner medical care and civil rights issues. I want to return to that issue today, but shift the focus away from the privatization of public services and toward the services themselves.

A few days ago Oregon Public Broadcasting reported that “a Jefferson County grand jury has indicted three of the county sheriff’s deputies in connection with an inmate’s death last April.” The broadcaster reports that the deputies were charged with criminally negligent homicide, a felony. The broadcaster reports that “the attorney for at least one of the deputies said her client plans to plead not guilty.”

The charges stem from the death of a man who had been held in the county jail for two days following his arrest on drug charges in late April 2017. The victim reported to guards that he was not feeling well on the morning of April 26. “He was seen by nurses employed by the sheriff’s office,” but it was only later that same morning when he again reported being ill that an ambulance was called. By then, it was too late. The inmate died a short time later, according to OPB.

A recent story published by Courthouse News Service details a legal case in Arizona that deserves to be making headlines nationwide. There has been a lot of media coverage over the last few years of the abuses of the private, for-profit prison industry. The Arizona case, however, highlights what can go wrong even when the state is still in charge. It also reminds us of the critical role our courts play in overseeing those with power and ensuring they do their jobs properly and humanely.

In Arizona, according to the news service, the state retained control of the prisons that are the focus of the lawsuit, but contracted out medical services to “Corizon, one of the nation’s largest prison health care providers.” Citing reporting by local NPR affiliate KJZZ, the news service writes that a Corizon staff member told a doctor working with the company part-time “to cancel a pending infectious disease consultation for a prisoner” because the consultation was past due and the company risked being fined for its slow response. The whistleblower also reported instances of critical medication, such as insulin, being withheld from prisoners and of her superior ordering her not to treat an inmate who had suffered a heart attack. She alleges she was told to spend less time with patients and focus on paperwork instead.

This case raises serious political issues, reminding us that the ‘savings’ offered by privatizing public services can sometimes be illusory. It also raises an equally serious civil rights issue. As I have noted in the past, federal, and many state, laws require that inmates receive a level of health care comparable to what they could expect to receive were they free. Failure to provide that level of care is a civil rights issue as defined in 42 US Code 1983. This statute protects anyone who has been deprived of “any rights privileges or immunities secured by the Constitution and laws” by the government at any level. Crucially, that responsibility extends to the government’s agents – in this case, private contractors. Corizon is a private company, but because it is working for the government, the government’s obligation to provide proper medical care extends to the company itself. Corizon, in legal terms, becomes a “state actor” because they are under contract to, in this case, Arizona to treat people who are, ultimately, in the state’s care.

An article published just before the weekend in The Oregonian outlined a new effort to change the way the state handles juvenile jails in general and mental illness among juvenile detainees in particular. “Nearly a dozen organizations, including the ACLU of Oregon, as well as groups that advocate for people with mental illness and juveniles, asked Gov. Kate Brown for ‘support in reducing Oregon’s reliance on youth incarceration’ and ensuring better conditions for juveniles in custody,” the paper reports.

According to The Oregonian the initiative was “prompted by Disability Rights Oregon’s blistering critique of the Northern Oregon Regional Corrections Facility, known as Norcor, in The Dalles. The organization… found that juveniles were locked in their cells for hours at a time and punished ‘for looking around.’”

This new focus on the juvenile detention system follows equally sharp criticisms of Oregon’s child welfare system, something I wrote about at length last month. Taken together they paint a picture of state institutions ill-equipped to protect children who end up in the care of the government. The conditions described in The Oregonian’s account of the juvenile justice system are particularly shocking. The coalition report on Norcor in particular portrays it as an institution using “outdated policies designed to ‘break the will at any cost.’” This way of thinking, it adds, is “out of step with the latest research and practices on juvenile incarceration.”

Last week it was announced that the family of “a mentally ill inmate in Oregon will receive $2.85 million to settle a federal civil rights lawsuit that alleged the man died of dehydration and starvation after jail staff failed to get him medical treatment during a depressive episode,” according to a report by the Associated Press that was reposted on the website of US News & World Report.

Last August I wrote about a situation in California that has certain similarities to this one. That case resulted in a $5 million settlement. While it is good to see justice done in both of these cases the fact that in both instances it took a human being’s death for prison officials belatedly to acknowledge their duties is a sorry commentary on the state of care in our prisons and mental institutions.

The California case involved a man suffering from schizophrenia. The case here in Oregon focused on a night in April 2015 when a bipolar man was found dead “after refusing to eat, drink or take medication.” According to the AP, shift logs from the Lincoln County, Oregon jail showed that the inmate had exhibited disturbing behavior “for days.” He “dunked his bedding and clothing in his toilet” soiled his cell, “spit out his food and splashed water around his cell until deputies shut off the water,” the news agency reports, citing court papers filed with a federal court in Eugene.

An exposé in the Los Angeles Times has brought renewed focus to something we lose sight of too often here in the United States: prisoners still have rights, and that includes the mentally-ill.

The newspaper notes that “three decades of federal litigation” has conclusively established “that psychiatric care in prison is a constitutional right” and yet it tells the story of a man suffering from schizophrenia who spent 46 hours with his arms and legs “shackled to a chair in the San Luis Obispo County jail.” The man died a short time after being released from the chair and then “dumped on the floor of a nearby cell.”

The case has shocked the local community, and led to “a record $5 million legal settlement” according to the newspaper. But the events that led to this tragedy are worth exploring because of the lessons they hold for the rest of the country, including us here in Oregon. It is essential to understand that the victim was being held at a county facility because of a state program designed to reduce prison overcrowding. The result of that program was to push many prisoners out of state facilities and into municipal and county ones. This is significant because state and local jails are rarely equipped to deal with long-term inmates who have mental health issues.

An effort by the Trump administration to roll back an obscure Medicare rule has provoked a loud, and unexpected, backlash according to multiple reports in The Hill, a newspaper that specializes in covering the federal government in general and Congress in particular. The paper reports in June an obscure regulatory body known as the Centers for Medicare and Medicaid Services (CMS) said it intends to repeal a “rule that prohibited nursing homes that accept Medicare or Medicaid funds from including language in their resident contracts requiring that disputes be settled by a third party rather than a court.”

This is an issue that I have been following for some time both in terms of this specific rule (click here to read my blog from last year when it was originally issued) and in terms of the broader question of arbitration ‘agreements’ that seek to deny ordinary Americans access to our courts when they suffer financial or physical neglect at the hands of a rich or powerful company (an issue I first addressed in 2013).

Thus, it is very heartening to see such a widespread backlash against the administration’s proposed rule changes. According to The Hill, 16 states and the District of Columbia filed formal objections to the policy change when these came due early last week. “Pre-dispute binding arbitration agreements in general can be procedurally unfair to consumers, and can jeopardize one of the fundamental rights of Americans; the right to be heard and to seek judicial redress for our claims,” the state attorneys general wrote in objecting to the proposed rule changes, according to The Hill. “This is especially true when consumers are making the difficult decisions regarding the long term care of loved ones. These contractual provisions may be neither voluntary nor readily understandable for most consumers.”

An almost off-hand remark by President Trump during an address to police officers last week was swiftly denounced by police officials in red and blue states alike. As the Washington Post reports, “some police leaders worried that three sentences uttered by the president… could up-end nearly three decades of fence-mending.”

Speaking to officers gathered on Long Island for an event focused on gang violence, Trump spoke about “roughing up” suspects and said: “When you guys put someone in the car and you’re protecting their head, you know, the way you put their hand over? Like, ‘don’t hit their head’ and they just killed somebody – don’t hit their head. I said, you can take the hand away. Okay?”

Denunciation of the comments came from police departments across the country. Even the department Trump had addressed, in Suffolk County, New York, put out a statement rejecting his suggestion that ignoring the right of people being arrested would be OK in certain circumstances. At the most basic level, an admonition to police to mistreat suspects goes against the presumption of innocence that lies at the base of American law. On a more immediate level it raises fears, as the Post notes, that individual officers will find encouragement in the president’s words, seeing in them a kind of validation for bad, even illegal, behavior.

50 SW Pine St 3rd Floor Portland, OR 97204 Telephone: (503) 226-3844 Fax: (503) 943-6670 Email: matthew@mdkaplanlaw.com
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