County Jail Liability

1. County Jail Liability 2012 Initiation and Continuing Education for Newly Elected and Incumbent County Officials

2. What is Law? • Law is the minimum acceptable behavior tolerated by society without imposition of penalty • Law not necessarily good or moral behavior, but rather the limit of what society tolerates before imposing punishment • Laws are the rules that protect us from the actions of others that do not want to play right

3. Jails have the daily task of dealing with those who have violated these accepted minimum standards of conduct for society

4. Assume that inmates will try to get advantages over the jail, staff and other inmates • Inmates will push the limits of what they can get away with

5. Inmates will look for any possible way to put the county and its employees in a situation that will allow them to claim civil or criminal liability against them • Large percentage of claims are not valid, but does not stop inmates from filing claims and making things difficult and expensive for the county

6. Remember OPERATING A JAIL IS DIFFICULT

9. FUNDING AND OPERATION OF COUNTY JAIL

10. Operation of a county jail is a joint task for Board of County Commissioners and the Sheriff

11. BOCC Duties • IC § 31-807—power/authority to take care of, manage or control county property • IC § 31-816—fix salaries of employees • IC § 31-824—employ prisoners • IC § 31-1001—construct or lease building for jail

12. IC § 20-612—provide for necessary food, clothing, bedding and medical care • IC § 20-622—quarterly inspection of jail to review security, treatment and condition of prisoners • IC § 20-622—take necessary precautions against escape, sickness or infection

13. Sheriff Duties • IC § 31-2202(6)—take charge and keep the county jail • Numerous other duties found in Title 20 Chapter 6

14. Biggest problems for jail • never enough money to cover all the needs • jail one of largest liability exposures for county

15. There is no requirement that each county have a jail • may contract with another county or private corporation to house prisoners • often an economic decision • some Sheriffs report that the day they closed their jail was the best day of their administration

16. Two types of claims: • State law claims pursuant to the Idaho Tort Claims Act (“ITCA”) • Federal constitutional or statutory claims pursuant to 42 USC § 1983

17. ITCA Claims

18. § 6-903 The County and its employees are only liable for the pro rata share of the total damages caused by the negligent or otherwise wrongful acts or omissions of the governmental entity or acts of its employees acting within the course and scope of their employment

19. § 6-903 County is required to defend and pay damages for the employees when they are individually sued and alleged wrongful acts were committed in course and scope of employment unless the act was done with malice or criminal intent.

20. Rebuttable presumption that the employee’s acts were within the course and scope and without malice or criminal intent

21. What is Course and Scope of Employment? Work performed with the purpose of serving or benefiting the employer

22. Applies to acts of the employee “which are so closely connected with what the servant is employed to do, and so fairly and reasonably incidental to it, that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of the employment”

23. Criminal Intent Intentional commission of a wrongful act without legal justification or excuse, whether or not injury was intended

24. Malice “The intentional commission of a wrongful or unlawful act, without legal justification or excuse and with ill will, whether or not injury was intended” Notice that malice has same definition but also requires “ill will”

25. State Tort Claim • Tort occurs when a person’s behavior has unfairly caused someone to suffer loss or harm by reason of a personal injury • Generally based on the premise that you owe a duty of due care to the person who is claiming damages against you

26. Due care is an objective standard of how a reasonable man would conduct himself

27. The most common tort is negligence but also includes claims for assault, battery, infliction of emotional distress, fraud, defamation, trespass, invasion of privacy, etc. • For example, in the jail setting, possible liability for physically harming an inmate, or putting them in danger of receiving harm from someone else

28. Under ITCA, the jury is required to determine what percentage of fault is attributable to every actor in the case, including the fault of the inmate who brings an action against you

29. If the liability of the claimant is 50% or more, there is no recovery by claimant • If liability of claimant is less than 50%, then his damages are reduced by the percentage of fault attributable to him • Example, if $100K in damages and claimant 40% at fault, he will only receive $60K

30. County only liable to pay the proportion of the remaining 60% of the fault that the jury assigns to it and employee

31. Example • Inmate received injuries in fight with another inmate and had $100,000 in damages • Jury Determination of Fault Claimant 40% Other inmate in fight 30% County negligence 30% County only responsible for $30K in damages

32. ITCA has damage cap of $500,000 aggregate or up to liability limit of insurance if in excess

33. ICRMP policy has split limits • $500,000 for claims brought pursuant to ITCA • $3,000,000 for all other liability claims

34. State Tort Claim Immunities • An immunity does not make actions non-negligent or not wrongful • Immunity just says that county will not be legally responsible for otherwise wrongful actions • Important immunities for a jail-related claims

35. Intentional Tort Exception § 6-904—A governmental entity and its employees while acting within the course and scope of their employment and without malice or criminal intent shall not be liable for any claim which: . . . 3. Arises out of assault, battery, false imprisonment, false arrest . . . . . . 6. Arises out of or results from riots, unlawful assemblies, public demonstrations, mob violence or civil disturbances. Requires both course and scope of employment and without malice (i.e. ill will) or criminal intent

36. Person in Custody Exception • 6-904A—A governmental entity and its employees while acting within the course and scope of their employment and without malice or criminal intent and without reckless, willful and wanton conduct . . . shall not be liable for any claim which: . . . 2. Arises out of injury to a person or property by a person under supervision, custody or care of a governmental entity . . .

37. Custody immunity requires that acts must still be within course and scope of employment and without malice or criminal intent • Act must also not be reckless, willful and wanton

38. “Reckless, willful and wanton” defined as • the intentional and knowing act or failure to act, • that creates unreasonable risk of harm to another, and • which involves a high degree of probability that such harm will result.

39. Involves an element of foreseeability of the specific harm that occurred based on the acts or omissions of the employee • Specific harm must be highly likely to occur rather then just be possible

40. Medical Care Exception • § 6-904B A governmental entity and its employees while acting with the course and scope of their employment and without malice or criminal intent and without gross negligence or reckless, willful and wanton conduct . . . shall not be liable for any claim which: . . . 5. Arises out of any act of omission providing or failing to provide medical care to a prisoner or person in the custody of any . . . county . . . Jail, detention center or correctional facility.

41. Federal Constitutional Claims Section 1983 Actions

42. § 1983 Litigation • Provides procedural rights to be in federal court, and does not provide any substantive basis for the lawsuit

43. “Every person who, under of color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects . . . any citizen of the United States or other persons . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .”

44. The US Supreme Court has emphasized that inmates lose some rights when they are incarcerated, but still maintain basic constitutional protections

45. In jail, most exposure for constitutional claims of • 1st Amendment violations of freedom of religion, freedom of speech and right to access the courts • 8th Amendment/14th Amendment claims for violation of the cruel and unusual punishments clause and due process • Also, exposure for violations of the ADA or other federal statutes

46. Under § 1983, standard vicarious liability does not apply • To prevail against the employer, the plaintiff must show a policy or custom of the employer that lead to the constitutional deprivation

47. 4 Ways to Establish Policy or Custom • Official policies or customs inflicts the injury • Deliberate or conscious failure to train—inadequacy of training so obvious that likely to result in violation of constitutional rights • Individual committing unconstitutional act was an official with final policy-making authority • Official with final policy-making authority ratified the unconstitutional actions of a subordinate

48. Eighth/Fourteenth Amendments

49. 8th Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”

50. 14th Amendment: “. . . No state shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”