County Liable for Rape of Detainee by Jail Guard

     (CN) – The 2nd Circuit reinstated a jury’s award of $500,000 to a woman who was raped by a sheriff’s deputy while she was being detained at the Erie County Holding Center in western New York.
     Former sheriff’s deputy Marchon Hamilton pleaded guilty to the 2002 rape of Vikki Cash, a woman awaiting trial in a woman’s housing unit at the Erie County Holding Center in Buffalo, N.Y..
     “Deputy Hamilton, acting alone, escorted some female detainees to the recreation center but ordered Cash to remain behind,” according to the 2nd Circuit. “When Hamilton returned, he grabbed Cash, put his hands over her nose and mouth, forced her into the deputies’ bathroom, and raped her.”
     After Hamilton pleaded guilty to third-degree rape, Cash brought a federal due-process claim and New York state-law claim for negligence against Erie County, the Sheriff’s Department, Sheriff Patrick Gallivan and her attacker.
     Though a jury ultimately awarded Cash $500,000 in damages, the magistrate judge hearing the case set the decision aside, finding that Erie’s policy of leaving male deputies alone with female detainees was not unconstitutional. The judge also said Cash had failed to prove that Erie had a policy of ignoring prior incidents of male guards sexual assaulting female prisoners.
     In a 2-1 decision, the 2nd Circuit reversed. The majority found that Sheriff Gallivan showed “deliberate indifference” to the risk of sexual attacks on prisoners because of his awareness of prison guards’ past misconduct.
     U.S. Magistrate Judge Jeremiah McCarthy improperly set aside the verdict on Cash’s claim for violation of due process under federal law, the federal appeals court ruled.
     “Defendants cannot claim that the evidence was insufficient to alert them to the risk of sexual exploitation posed by male deputies guarding female prisoners at ECHC,” Judge Reena Raggi wrote for the majority. “That risk is acknowledged in New York state law, which pronounces prisoners categorically incapable of consenting to any sexual activity with guards … and subjects guards to criminal liability for such conduct.”
     “In short, these laws recognize the moral certainty of guards confronting prisoners in sexually tempting circumstances with such a frequent risk of harm to prisoners as to require a complete prohibition on any sexual activity,” she added.
     Raggi said that it was reasonable for the jury to conclude that women prisoners were at risk.
     “By 1999, defendants also knew that a policy simply proscribing all sexual contact between male guards and female prisoners was insufficient to deter such conduct at ECHC; and that, in these circumstances, defendants’ mere reiteration of the proscriptive policy unaccompanied by any proactive steps to minimize the opportunity for exploitation, as for example by prohibiting unmonitored one-on-one interactions between guards and prisoners, demonstrated deliberate indifference to defendants’ affirmative duty to protect prisoners from sexual exploitation,” the 35-page decision states.
     The majority also rejected Erie’s request for a new trial based on improper questions to jurors and a supposed deficiency in the verdict. Raggi said those errors “were not properly preserved for review.”
     Chief Judge Dennis Jacobs criticized the majority’s holding and said it would “impose strict liability on municipalities and policymakers for any incidents that arise in a prison.”
     The court’s decision hinged on an incident that the court said demonstrated Gallivan’s apparent indifference to sexual exploitation of prisoners. In that instance, a female inmate at ECHC, Elizabeth Allen, claimed that a prison guard bartered sexual activity for commissary items. In the past, Allen had exposed her breasts to guards for cigarettes.
     Jacobs said Allen’s case “yielded ambiguous conclusions establishing no more than that the inmate exhibited herself sexually to guards who did not report her, and that one or more guards gave her commissary items.”
     “One guard was found to have violated policy and was given a three-day suspension without pay,” the seven-page dissent states. “Thus the Allen complaint was not ignored: It provoked an investigation; and the investigation resulted in discipline. This is not deliberate indifference to sexual exploitation, and far less is it deliberate indifference to the risk of rape.”
     Jacobs said that the majority’s ruling meant that the “only effective solution” would be to segregate prison guards and prisoners by gender.
     “Because male inmates greatly outnumber female inmates, the resulting curtailment of opportunity for female guards would likely trigger valid Title VII suits,” Jacobs wrote.
     “People with known same-sex preferences may not be able to serve as guards in any prison,” he added. “And in another sphere, since military officers are responsible for their subordinates, we could not have mixing of the sexes in the military, unless (I suppose) the officers are paired off.”

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