Tag Archives: FCC florence

‘SORT’ of a FUBAR – Update for September 13, 2024

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

BOP EMPLOYEES FEEL OUT OF ‘SORTS’

From the 10th Circuit this week comes a fascinating case – not so much for the dry-as-toast legal issue – whether under the Westfall Act, 28 USC § 2679, government employees were acting outside the scope of their employment when they assaulted fellow employees, but for the juicy facts, a Bureau of Prisons training exercise gone bad, punching them and (for good measure) administering a bit of tear gas.

policeraid170824BOP employees at FCC Florence were practicing how to respond to a hostage situation. The setting was a BOP office that, for the exercise, was assumed to be under the control of rioting inmates. BOP policy directs that in such a case, employees are to find a safe space in which to shelter, and to not let anyone in under any circumstances. For example, a fellow employee at the door begging for admission should be denied, because he or she might be under the control of a bad guy and being forced to try to get the shelterers to open the door.

In a hostage situation, the BOP first employs a team of people trained to negotiate a peaceful settlement. Only when that fails does the Bureau send in its Special Operations Response Team – the SORT Team – the agency’s own version of a SWAT Team, which is charged with using force to bring an end to the standoff.

In the Florence exercise, several employees hid in a cashier’s cage to which only one of the people taking refuge there had a key, a decision consistent with their training. However, during the drill, the BOP staff barricaded in the cashier’s cage overheard a radio call that they reasonably interpreted as meaning that rioters had taken control of the SORT Team by compromising one of the SORT squad members.

The negotiating team failed to bring the play-acting hostage situation to a peaceful conclusion (obviously, because had it done so, the SORT guys would not have had a chance to do their stuff). SORT crashed the practice and took down the pretend hostage-takers. It was then that everything went off the rails.

firecrackerB240913The SORT Team stood outside the cashier’s office door and instructed those inside to open it. The barricaded employees refused to answer, believing the claims that the inmates had been subdued to be a ruse. The SORT squad members became more strident in their demands, but the sheltering employees remained mute. Frustrated by this SORT member Chad Weise threatened to throw a flash strip – a kind of explosive charge – under the door.

At that point, one of the employees broke the silence and told SORT that there were people inside the cage. As the Circuit described it, the SORT squad

then repeatedly slammed their bodies against the cage door, demanding that plaintiffs open it, and threatened to deploy oleoresin-capsicum spray (OC spray) if plaintiffs did not comply… Next, Weise used a tool to pry open the steel shutters of the cashier’s window. At that point, one of the non-plaintiff individuals sheltering in the cashier’s cage demanded that defendants stop destroying government property and shouted ‘out of role’—a phrase that any BOP employee can use during a mock exercise to immediately end the exercise for safety reasons, and a phrase that no defendant ever used throughout the entire incident. Plaintiffs also repeatedly explained to defendants that they would not open the door because they believed that SORT was compromised. Even so, [one] SORT member… fired Simunition rounds at or into the cashier’s cage; five such rounds were recovered from inside the cage.

Meanwhile, the SORT squad continued to threaten to use OC spray, “and plaintiffs repeatedly responded by shouting that it was against BOP policy to use OC spray on staff.” The SORT squad radioed for permission to use the OC spray. “Authorization was never received. Undeterred, Weise notified the command center by radio that he was going to use the OC spray and then sprayed two bursts—one at the cashier’s window and one underneath the door of the cashier’s cage. Plaintiffs’ eyes began to burn, they began to cough and have difficulty breathing, and they shouted ‘out of role’ continuously.”

Three SORT officers finally pushed their way into the cashier’s cage in full tactical gear. “They told plaintiffs to get on the ground, which was not possible given the size of the room, the furniture, and the number of people in it,” the 10th said. Then, the three “repeatedly started punching and hitting the individuals inside the cashier’s cage, even though plaintiffs and the other individuals in the cage continued to shout ‘out of role…’ All three officers began punching the sheltering employees, and one shot an employee” in the chest at point [b]lank with a Simunition round, which burned through [his] shirt and left a bleeding laceration on his chest.”

musicstops220623The district court found that “BOP policy prohibits the use of OC spray and Simunition rounds in the absence of any threat, and the BOP’s employee-conduct standards state that ‘[a]n employee may not use physical violence, threats, or intimidation . . . toward fellow employees…’ At no point during these events did defendants report a real emergency to the prison’s command center. Thus, the district court concluded that defendants had violated BOP policy and had ‘no legitimate belief of a real threat or emergency situation to justify the incidents that occurred’.”

Four of the sheltering BOP employees sued six of the SORT team officers for state-law assault claims, but the government stepped in. Under the Westfall Act, 28 USC § 2679, federal employees are absolutely immune from state-law tort claims that arise out of acts they undertake in the course of their official duties. In a civil action raising state-law tort claims against a federal employee, Westfall lets the government certify that the employee was acting within the scope of his or her employment at the time of the incident.

That’s what the government did here. However, the district court rejected the Westfall certification. The government appealed. Last week, the 10th Circuit agreed with the district court.

In assessing the scope of employment, courts apply the respondeat superior law of the state where the incident occurred. Colorado’s two-pronged test for determining whether an employee’s alleged intentional tort is within the scope of employment requires that the employee must (1) be doing the work assigned by the employer, or what is necessarily incidental to that work, or customary in the employer’s business and (2) have the intent in committing the tortious act to further the employer’s business.

punch160328The Circuit found that the SORT defendants had abandoned their legitimate work of clearing the business office by making no effort to communicate to plaintiffs that the exercise was over, using OC spray and Simunition in violation of BOP policy, and “essentially engaging in combat with staff members.” The 10th agreed with the district court that the SORT team’s “conduct was not intended to further the BOP’s business. Instead, the district court concluded that defendants acted out of frustration in response to plaintiffs’ justified refusal to respond to defendants’ questions and demands to exit the cashier’s cage.”

The suit can now continue against the six SORT officers in district court.

Arroyo v. Hall, Case No. 22-1307, 2024 U.S. App. LEXIS 22928 (10th Cir. Sep. 10, 2024)

– Thomas L. Root

BOP Whistles a Happy Tune – Update for August 11, 2020

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

DEATH DOESN’T TAKE A HOLIDAY, BUT BOP SEEKS NORMALCY

Six more inmates died of COVID-19 last week, bringing the BOP’s death total to 116. Twenty-two have died since July 1. Even while the BOP heralded a drop in the number of sick inmates from 2,476 to 1,395, a reduction of 44%, the number of sick staffers hit 580, an increase of 14% from last week (and all-time high). COVID-9 has now reached a record 114 institutions (93% of all BOP facilities).

whistle200811Still, the BOP bravely whistles a happy tune, seeking a return to normalcy as though it has the virus on the run. The agency announced Phase 9 of its rickety COVID-19 “Action Plan.” Phase 9 relaunches a number of EBRR-sanctioned programming (the programs that earn First Step Act credit), some – like the Residential Drug Treatment Program – to 100% and others to half capacity. UNICOR, the federal prison industry, is to spool up to 80% by September 1 and 100% a month later. Recreation time outside will resume, with limitations on group size and length of rec sessions. Inmate transportation begins again.

Meanwhile, fresh breakouts of COVID-19 were reported at USP Lewisburg (51 ill), FCI Loretto (37 ill), the Victorville, California, prison complex (127), USP Marion (70 ill) and FCI Edgefield (60 ill). Those locations join Coleman, Miami, Elkton, Forrest City, Beaumont, Carswell, Oklahoma City, Three Rivers and scores of other BOP institutions with the virus. CNN last week branded FCI Seagoville as “the hardest-hit federal prison in the United States” where “more than 1,300 of the roughly 1,750 prisoners have tested positive for the virus — a stunning three out of every four inmates.”

Since the beginning of May, when there was only a single coronavirus case at Seagoville, the number of inmates testing positive soared to 1,333, according to BOP. Twenty-eight of the roughly 300 prison employees have also tested positive. The outbreak means that the facility has more coronavirus cases than about 85% of the counties in the US.

covidmap200811The virus has reached FCC Florence (Colorado) and FDC Honolulu as well.

At FCI Miami, in Florida, nearly half of the inmates reportedly have tested positive. Kareen Troitino, the FCI Miami corrections officer union president, told ABC News that the virus was spread by one employee to inmates at the facility and, within a day cases at the facility went from one to four. Troitino says the only protective equipment the BOP issued were surgical masks. “One employee walked into work. He did not show a fever. He passed our screening procedures. He was positive. And that one employee spread it to numerous inmates. And then that’s it. Ever since then, it’s been a disaster.”

Troitino’s union local has sued the BOP and several other federal agencies, seeking hazard pay for at-risk essential workers.

In Washington, D.C., Democratic senators and representatives sponsored legislation in both chambers last Thursday to require the array of agencies that administer the nation’s jails and prisons to collect and report publicly detailed information about the spread of COVID-19 in their facilities. Joe Rojas, southeast regional vice president of the federal prison employees, told ABC News, “The Bureau is the largest agency within the DOJ and there’s no oversight. The BOP director doesn’t even get confirmed he just gets appointed.”

Forbes magazine complained last week that the BOP’s “Phase 9 Action Plan… looks a lot like Phase Eight… which looked a lot like Phase Seven. It begs the question as to whether there is a cohesive plan to address the COVID-19 pandemic that has infected over 10,000 federal inmates and over 1,000 correctional staff… killed 110 inmates and one staff member.”

coronadog200323BOP employees at FCI Tallahassee publicly expressed concern over Phase 9’s inmate transportation. “If we’re going to receive inmates that are positive, if we’re going to be assigned to inmates that have already tested positive it’s pretty shaky from day-to-day,” Yalimany Dudley, CO, told WTXL-TV.

Dr. Kristian Morgan, a nurse at the FCI, said inmates are coming in without being tested beforehand, bringing the virus with them. “We received about eight inmates from the Marshal Service last week. Five of those tested positive as soon as they entered inside the institution when we did rapid testing.”

BOP Memorandum, Coronavirus (COVID-19) Phase Nine Action Plan (August 5, 2020)

CNN, Inside the federal prison where three out of every four inmates have tested positive for coronavirus (August 8, 2020)

KTVT, Inside the Federal Prison Where Three Out of Every Four Inmates Have Tested Positive for Coronavirus (August 9, 2020)

Canon City Daily Record, 3 new cases of COVID-19 in Fremont County; Bureau of Prisons reporting 3 cases (August 3, 2020)

Honolulu Civil Beat, First Hawaii Inmate Tests Positive for COVID-19 Along With 4 Corrections Officers (August 7, 2020)

ABC News, As coronavirus spreads through nation’s jails and prisons, lawmakers demand more transparency on toll (August 6, 2020)

WXII-TV News, ‘We’re Risking Our Lives’: Front-Line Federal Workers Sue For Hazard Pay (August 7, 2020)

Forbes, As Bureau of Prisons Enters “Phase 9” Of COVID-19 Plan, BOP Staff Wonder If There Is A Real Plan (August 7, 2020)

WTXL-TV, FCI Tallahassee employees fear the worst as inmate transportation restarts (August 6, 2020)

– Thomas L. Root