Webinar presenter Carrie Hill with the National Sheriffs' Association answered a number of your questions after her presentation, "Legal Issues in Today's Jails: Use of Force." Here are a few of her responses.
Audience Question: The audience member wanted to verify that immediate threat does include threats to the inmate himself, such as self-harm?
Carrie Hill: Absolutely. So, you can define what that immediate threat is, doesn't necessarily mean it has to be to other inmates or to staff. It absolutely could be to themselves. Thank you.
Audience Question: When faced with a situation that use of force incident outside of the correctional environment, do you think that the same nine factors can provide a template for the reports?
Carrie Hill: I do, and here's why. All of these does is strengthen Graham vs Connor. Because the three elements are already there. But now we're really requiring that narrative to talk more and more about that threat perceived by them. Again, that immediate threat to the safety. That amount of force chosen in relation to, really builds upon the Graham vs Connor. Here's what I think that's also very interesting. This is the first Supreme Court decision we have had on use of force in years. It's very, very telling that how the Court is going. So, for me, and again, I have peers in the industry for those of you who know Eric Gagel (?), a dear friend, and this well-respected attorney, working in the area, kind of my counterpart, so to speak, on the law enforcement side. But Eric also sees this, and we talked about this several times, that this is kind of the now for the future for law enforcement as well. The one thing we know about this document is never going to take away from Graham, because Graham is still included in this. If anything, it just adds up all of the reasons why the officer used the force in getting all of their mindset and rationale into that report. I think it's a fantastic tool. I think it works all the way across the board.
Audience Question: It sounds like you use the same report for both pretrial detainees as well as post-trial, post-conviction inmates. Are there different things you would emphasize in this? I think you were mentioning that earlier.
Carrie Hill: Let's say, for example, if I am a convicted inmate, well, I already know number one: I really get to focus on the threat perceived. That's the subjective component. And Hudson very much talks about that we really get to look at that subjective piece. So, we really, again, build out number one. And we can do that in court. So, number one, number three, number four, number five and number six, are all Hudson vs McMillan. So, if it's a convicted inmate, I'm really going to focus on both specific areas, right? If in fact I am a pretrial detainee, I need to use all nine, cause that's what the court says I get to use. So, I'm absolutely in. And, again, if I am an arrestee on the street, then, number two, number seven, and number eight. Are the three there. But it doesn't mean I can't use all of them, it just means it gives me where I might focus a little bit more. So, if it's a convicted inmate, I'm definitely going to focus more on number one, if it is a pretrial detainee, I'm going to focus more on number three, that need for the use of force.
Audience Question: What kind of tactics can we expect from the plaintiff's attorney during a deposition order in courtroom testimony, it's kind of a big question, I don't know if you have time to answer that, but any thoughts that you can share?
Carrie Hill: I think one of the things that they're going to say is, well, the court kept talking about the word objective, so therefore it really should just be Graham vs Connor, they're not going to look at, and at Hudson vs McMillan five are just recommendations. And our point has to be, no, we really have to pull in that this Supreme Court recognize Turner vs Safely and Bell vs Wolfish, there is a legitimate governmental interest and we have to show how different Graham vs Connor is than the objective unreasonableness test of Kingsley. And we do that by looking at Bell and Turner together that legitimate governmental reason. We do it by bringing in that substantial deference that must be given to correctional officials. It's in every Supreme Court decision. Why we use the force that it is different, and again, the Court said we get to use those five factors from Hudson, you better believe we're going to use them. Hudson is a long-standing, well-respected, used, case. And again, it still works for our convicted inmates. So, I think what we can anticipate is they're going to say, it is the same standard and we have to say no objective reasonableness, objective unreasonableness. Either all of the different elements the court said we get to use, and we have to make and show how we are so different than the street. And that requires our deference to us, to articulate that. I think that's one of the challenges you might experience.
Audience Question: Do you see jails ruling out the use of body-worn cameras in the correctional environment happening at the same pace as law enforcement officers that are on the road?
Carrie Hill: I do. I don't know if it's necessarily at the same pace, but one of my thoughts has always been if ever you want to do a pilot, why not do body-worn cameras in a jail, cause we're used to using cameras. We're used to having video. We're used to having all of that right then and there. I do see more and more jails that are starting up using body-worn cameras, again, we're used to having cameras on us all the time. A few more challenges, if we look at the areas in strip-search situations, or in shower areas, etc. But bottom line is, I do see it evolving, I think that there are questions now as to where that body-worn cameras going to be. Is it eye-level, at chest-level, some of those different issues. So again, I don't know if I can say it's at the same speed as to on the street. I don't think so. But do I think that it's absolutely one of the areas that jails are definitely looking at, and definitely mindful of, and definitely incorporating? Absolutely.
Audience Question: Given the different standards between pre- and post-disposition detainees, do you recommend that jails house them in separate units?
Carrie Hill: No. Totally separate question, I'm not so sure it's on the use of force. Whether or not you're going to mix pretrial detainees, or convicted inmates together, and again, I think this is all going to based on classification decisions, every State is a little bit different on that. But understanding that we house both, I think it would be succinct if we were to say, no we don't want you to house them together, I think that's going to be absolutely limit. Limit some of the areas where you can put the inmates. So, I don't know if you necessarily have to have pre-trial detainee housing unit, or a convicted. I think I'm going to leave that up to you, you know your inmates. That is that substantial deference comes in. And if you're asking it in terms of maybe it would help with the use of force, at the end of the day, I don't want you thinking any different. When you go into any use of force situation, regardless. What should be driving your response, is truly that threat perceived at that moment. The immediacy of the threat, and then the need for the use of force. But there is that need and tell me what the inmate was doing, that should be driving your response, not the status of the inmate. So, I hope that helps without deviating too much on the question.
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