Ineffective assistance of counsel

Morris v. Carpenter, 802 F.3d 825 (6th Cir. 2015)

Granting of habeas relief and finding of ineffective assistance of counsel in sentencing phase vacated by Circuit Court

Background: Following affirmance of his convictions for first-degree murder and aggravated rape and the imposition of a capital sentence, Farris Morris sought federal habeas relief in the United States District Court for the Western District of Tennessee. Specifically, Morris argued that his trial counsel failed to investigate his mental illness or to use a mitigation specialist at the penalty phase. The District Court granted his petition and vacated his sentence on the basis of ineffective assistance of counsel at the penalty phase of Morris’s trial. The Warden appealed.

Holding: The Sixth Circuit Court of Appeals vacated the District Court’s grant of habeas relief. The Court held that Morris’s trial counsel’s failure to present additional mentalhealth testimony as mitigation evidence at sentencing did not render counsel’s performance deficient. Unlike the counsel in Saranchak and Hardwick, the Sixth Circuit found that Morris’s trial counsel had a legitimate strategy reason for not presenting additional mental health testimony in the penalty phase—the additional evidence could have opened the door to “rebuttal evidence of Morris’s history of drug dealing, drug use, and other illegal acts.” This risk of damaging rebuttal evidence made defense counsel’s decision to avoid presenting additional mental health evidence reasonable and not constitutionally deficient.

Notable Points:

Reasonable refusal to introduce additional mental health evidence: Counsel presented testimony at the guilt phase “to show how cocaine intoxication and withdrawal can affect the user’s ability to reason.” Although, the defense team did not present new expert testimony at sentencing, they consulted with mental-health experts to form their strategy, and expert testimony was already before the jury. Additionally, mitigation witnesses testified about “Morris’s character, work habits, and good behavior in prison.”

Found in Found in DMHL Volume 34, Issue 4

Ineffective assistance of counsel

Hardwick v. Sec'y, Fla. Dep't of Corr., 803 F.3d 541 (11th Cir. 2015)

Failure of defense counsel to present mitigation evidence regarding defendant’s history of mental illness in sentencing phase of murder trial was prejudicial

Background: After affirmance of his state murder conviction and death sentence and denial of state post-conviction relief, John Gary Hardwick, Jr. petitioned for federal habeas relief. Hardwick based his claim of ineffective assistance on his counsel’s failure to conduct a professionally reasonable mitigation investigation regarding his mental health during the penalty phase, and that it was reasonably probable that he would not have been sentenced to death but for this deficient performance. After an initial denial followed by remand and an evidentiary hearing, the United States District Court for the Middle District of Florida determined that Hardwick’s counsel had been ineffective at the penalty phase of his trial and set aside his capital sentence.

Holdings: The Eleventh Circuit Court of Appeals affirmed, holding that Hardwick was entitled to a writ of habeas corpus setting aside his capital sentence and requiring the imposition of a life sentence, unless the State provided him with a new penalty phase. Although trial counsel’s decision not to present mitigating evidence at the penalty phase of a capital trial is not per se ineffective assistance, the strategic choice not to present mitigating evidence must be objectively reasonable. Here, as in Saranchak, there were several “red flags” that should have signaled to counsel the need to conduct a life-history investigation, to interview family members, and provide the information to a mental health expert.

Found in Found in DMHL Volume 34, Issue 4

Ineffective assistance of counsel

Saranchak v. Sec'y, Pa. Dep't of Corr., 802 F.3d 579 (3d Cir. 2015)

Failure of defense counsel to present mitigation evidence regarding defendant’s history of mental illness in sentencing phase of murder trial was prejudicial

Background: Following affirmance of his state court conviction for first degree murder and sentence of death, and denial of his motion for state post-conviction relief, Daniel Saranchak filed a petition for a federal writ of habeas corpus. The United States District Court for the Middle District of Pennsylvania granted the petition in part, but the Third Circuit Court of Appeals reversed and remanded. On remand, the District Court denied the petition. Saranchak appealed the denial, claiming that (1) his attorney’s cumulative errors at trial prejudiced the guilt phase of the trial, and (2) his attorney was constitutionally ineffective at the penalty phase of his trial.

Holdings: The Third Circuit Court of Appeals, hearing Saranchak’s appeal for the second time, held that Saranchak was not prejudiced by trial counsel’s failure to present evidence of Saranchak’s mental health history in conjunction with the admission of his confession. It did, however, find that the district court had been unreasonable in finding that (1) the background information available to trial counsel was insufficient to prompt further investigation regarding Saranchak’s mental health, and (2) petitioner was not denied effective assistance due to this failure to investigate.

The Third Circuit found that Saranchak’s trial counsel had access to enough background information regarding the client to warrant further investigation regarding Saranchak’s mental health. The Third Circuit pointed to specific “red flags”: (1) Saranchak stated that he was treated for one-month at an inpatient clinic; (2) Saranchak had once ingested 250 pills in response to his wife having an affair; and (3) a neutral expert noted that Saranchak “appeared to suffer from a personality disorder” with antisocial traits.

The Third Circuit also held that this failure to investigate amounted to ineffective assistance of counsel because counsel believed that Saranchak’s mental health was a major issue in the case. Additionally, none of the petitioner’s psychological diagnoses were presented to the jury, and “additional evidence revealed that petitioner’s troubled past and psychological problems were significant factors affecting his life.” This met the prejudice test required by Strickland. 

Found in Found in DMHL Volume 34, Issue 4

Use of Expert Mental Health Testimony in Criminal Cases

United States v. West, No. 14-2514, 2015 WL 9487929 (7th Cir. Dec. 30, 2015)

In a case of illegal gun possession that rested almost exclusively on defendant’s replies to police questioning that the gun in question was his, testimony by an expert that the defendant’s admission was unreliable due his low IQ, mental illness and high suggestibility should not be excluded.

Background: Antonio West was indicted for possessing a firearm as a felon in violation of 18 U.S.C. § 922(g). The gun was found in the attic of the family home during a consensual search for a stolen television. No fingerprints were recovered from the gun, and there was conflicting evidence regarding whether West actually lived in the home in which the gun was found. As such, the case for possession rested on West’s admission to police that the gun was his. West’s attorney moved to suppress his statements to police based on expert testimony that West had a low IQ, suffered from mental illness, and scored highly on the Gudjonsson Suggestibility Scale. The district court denied the motion, finding that West had competently and voluntarily waived his Miranda rights. West’s attorney then moved to admit the expert testimony at trial to (1) assist the jury in assessing the reliability of the confession, (2) negate the intent element of the offense, and (3) explain West’s demeanor should he testify. The judge excluded the evidence on all three grounds and the jury found West guilty.

Holding: On appeal, the Seventh Circuit reversed the decision of the district court and remanded for a new trial. The Court agreed with West that the exclusion of expert testimony regarding West’s IQ was reversible error. Because the government’s case relied heavily on the jury’s acceptance of West’s confession, the district court’s decision to exclude expert testimony regarding the potential reliability of that confession could not have been harmless error.

Notable Points: 

The expert’s testimony regarding West’s IQ was relevant to the question of the reliability of the confession: The Seventh Circuit held that expert testimony explaining that a defendant’s low IQ and mental illness could have influenced his responses to officers’ questions was certainly relevant and admissible where the major issue at trial was the reliability of the defendant’s confession. The expert testimony was highly relevant to the jury’s consideration of the defendant’s personal characteristics, and the government’s objection to the testimony went properly to its weight, not admissibility.

Erroneous exclusion of expert testimony warranted a new trial: Because the government’s case depended on whether the defendant knowingly possessed a firearm as a felon, and that determination rested largely on the defendant’s confession, the expert should have been allowed to testify. If he had, the jury might have discounted the defendant’s statement admitting that the gun was his. Given that, a new trial was required.

Found in Found in DMHL Volume 35, Issue 1

Excessive Force

Kent v. Oakland Cty., 810 F.3d 384 (6th Cir. 2016)

Qualified immunity denied to officers who tased a man who was agitated but not armed, actively resisting arrest, or making threats of physical harm against the officers and EMTs seeking his compliance.

Background: Claudio Lopez and Christina Maher—both Oakland County Sherriff’s Deputies—responded to the natural, at-home death of Michael Kent’s father. When EMTs attempted to attach an Automated External Defibrillator to Kent’s father, Kent objected on the grounds that his father had not wished for life-sustaining procedures. Kent became increasingly agitated, yelling at the deputies and EMTs and refusing to calm down. One of the EMTs asked the deputies for assistance and told one deputy that he felt he could not perform his duties for fear of Kent intervening. After additional commands by the deputies to calm down, Deputy Lopez stated pulled out his taser and told Kent that he would deploy it, to which Kent reported that he replied, with his hands in the air, “Go ahead and Taze me, then.” It was at this point that Deputies Lopez and Maher tased Kent. Kent brought an action pursuant to 42 U.S.C. § 1983 and the deputies moved for summary judgment on the grounds of qualified and governmental immunity. Finding that the deputies’ use of the taser under the circumstances was clearly unreasonable, the district court denied the motion for summary judgment. The deputies appealed.

Holding: The Sixth Circuit affirmed the district court’s denial, holding that there was no combination of facts that would have made the officers’ use of force reasonable. Especially important to the Court was the fact that Kent’s resistance to the officers’ directions was only verbal and generally non-threatening. The Court found that, while Kent did not address the officers in a polite manner, his conduct did “not resemble the ‘continued resistance and hostility’ often present in our active resistance cases…”

Notable Points:

Kent did not pose an immediate threat to the safety of others: Even though Kent may have prevented EMTs from doing their duties, his conduct did not “resemble the physical and immediate safety threat” found in other cases in which tasing was justified. Examples of threats that warrant tasing include: a suspect who is armed, a suspect reported to be armed reaching into a bag, or a suspect whose violent resistance endangers responders.

Kent was not continuously resistant and hostile in a way that warranted use of force against him: The Sixth Circuit noted that active resistance of arrest, which would support use of a stun gun or taser by police, includes physically struggling against, threatening, or disobeying officers. It could also include refusing to allow police to handcuff a person or fleeing from police. Although Kent was not compliant with all orders given to him by police, he was not actively resisting them in a way that would have authorized use of a stun gun against him. Additionally, the Court found it important that there was “no evidence that Kent was aware that he would be detained until Deputy Lopez instructed him that he would be tased if he failed to comply with commands.”

Found in Found in DMHL Volume 35, Issue 1

Application of Section 504 of the Rehabilitation Act

Flynn v. Distinctive Home Care, Inc., 812 F.3d 422 (5th Cir. 2016)

Section 504 authorizes employment discrimination suits by independent contractors.

Background: After Congress enacted the Americans with Disabilities Act (“ADA”) in 1990, the Senate Subcommittee on Disability Policy held a hearing out of concern over potential inconsistences between the Rehabilitation Act and the ADA. In response to the “need to include the philosophies embodied in the ADA in the Rehabilitation Act,” Congress added subsection (d) to Section 504 of the Rehabilitation Act. Subsection (d) incorporated by reference parts of the ADA, for example: the standards used to determine whether Section 504 has been violated in a complaint alleging employment discrimination “shall be the standards applied under title I of the Americans with Disabilities Act of 1990.” Most federal circuit and district courts agree that, under Title I of the ADA, a plaintiff may sue a defendant only if the plaintiff is an employee, not an independent contractor. In Flynn, the central question was whether Section 504(d) incorporated this limitation. The district court held that it did, and thus Flynn—an independent contractor with Distinctive Healthcare staffing—could not proceed with her employment discrimination claims.

Holding: The Fifth Circuit vacated the judgment of the district court and concluded that Section 504 of the Rehabilitation Act authorizes employment discrimination suits by independent contractors. 

Notable Points: 

The Rehabilitation Act adopts only the substantive standards of Title I of the ADA, not the definition of who is covered under the Rehabilitation Act: The Fifth Circuit held that Section 504(d) of the Rehabilitation Act does not incorporate Title I of the ADA in its entirety. Specifically, the Rehabilitation Act uses the ADA’s standards only to determine whether the Rehabilitation Act has been violated. The Rehabilitation Act does not, however, state that the ADA standards determine whether an employer is subject to the Rehabilitation Act. The Court held that the definition of “employer” under the Rehabilitation Act is “far broader” and covers “all of the operations of covered entities, not only those related to employment.” Thus, the Rehabilitation Act adopts only the substantive standards for determining “what conduct violates the Rehabilitation Act, not the definition of who is covered” (emphasis in original).

Found in Found in DMHL Volume 35, Issue 1

Criminal Sentencing

United States v. Poulin, 809 F.3d 924 (7th Cir. 2016), reh'g denied (Feb. 22, 2016)

Conditions of supervised release were procedurally unreasonable because they were vague and lacked explanation.

Background: After pleading guilty to receipt and possession of child pornography, Matthew Poulin was sentenced to two concurrent 115-month terms of imprisonment and two concurrent life terms of supervised release. Poulin appealed, contending that the district court had erred by not providing reasons for imposing the maximum term of supervised released and that the record lacked justification for the imposition of special conditions (including the requirement of mental health treatment). The Seventh Circuit vacated the original sentence and remanded to the district court for resentencing. On remand, the district court resentenced Poulin to concurrent 84-month terms of imprisonment and a 10-year term of supervised release, including nine standard conditions and seven special conditions. Poulin brought a successive appeal challenging several of the conditions.

Holdings: The Seventh Circuit again vacated the standard conditions of supervised release imposed below, basing its reasoning largely on a line of cases decided after the district court had issued its resentencing judgment. While acknowledging that the district court did not “have the benefit of guidance provided by [the more recent cases],” the Court held that the disputed conditions were not “properly-noticed, supported by adequate findings, and well-tailored to serve the purposes of deterrence, rehabilitation, and protection of the public” (citing United States v. Kappes, 782 F.3d 828 (7th Cir. 2015).

Found in Found in DMHL Volume 35, Issue 1

Criminal Sentencing

United States v. Garcia, No. 15-40252, 2016 WL 386141 (5th Cir. Feb. 1, 2016) (per curiam)

Special condition of sentence requiring mental health treatment under supervised release agreements failed to meet statutory standards for probation conditions.

Background: After receiving a sentence from the trial court that included a requirement to participate in a mental health treatment program, Ruben Garcia appealed his sentence to the Fifth Circuit. Garcia contended that the district court had committed reversible error by failing to explain “how the mental health condition was reasonably related to the pertinent statutory factors.” Additionally, he argued that the record did not justify an inference that such a condition was reasonable.

Holding: Because Garcia did not challenge the mental health condition in the trial court, the appellate court’s review was limited to plain error. Even under this standard, the Fifth Circuit vacated the condition of Garcia’s supervised release that required him to participate in mental health treatment, and remanded the case to the district court for reconsideration. According to the Fifth Circuit, the district court abused its discretion by failing to explain how the special condition (i.e. mental health treatment) was reasonably related to all statutory factors. Without any clear explanation for the imposition of a special condition and a lack of implied justification in the record, the Fifth Circuit held that it was “incumbent upon [them] to vacate [the judgment below].” Because it was not obvious from the record that there was a basis for the mental health condition (and because such a condition affects Garcia’s substantial rights), the Fifth Circuit held that the lower court had committed plain error.

Found in Found in DMHL Volume 35, Issue 1

Liability of Public Officials for Care of Mentally Ill Inmates in Correctional Setting

Saylor v. Nebraska, 812 F.3d 637 (8th Cir. 2016), as amended (Mar. 4, 2016)

Claim by jail inmate with mental illness against jail doctors and staff under 42 USC § 1983 did not establish deliberate indifference required under the Eighth Amendment to establish liability. Summary judgment granted to all defendants based upon qualified immunity.

Background: James Saylor sued the State of Nebraska, the Nebraska Department of Correctional Services (“NDCS”), Correct Care, LLC, and several individuals alleging violations of his First, Eighth, and Fourteenth Amendment rights under 42 U.S.C. § 1983. Saylor alleged that defendants acted with deliberate indifference to his serious medical needs by failing properly to treat him for PTSD. He claimed that his level of care at Nebraska State Prison was so low as to constitute cruel and unusual punishment. The district court dismissed Saylor’s claims against the State of Nebraska and the NDCS and the claims for monetary relief against the individual defendants in their official capacities. The district court then denied the remaining defendants’ motions for summary judgment on the basis of qualified immunity.

Holdings: On appeal, the Eighth Circuit reversed, holding that there were not genuine disputes concerning “the predicate facts material to the qualified immunity issue.” Because the Court found that the record showed that all defendants “met Saylor’s medical needs beyond the minimum standard required,” there was no deprivation of Saylor’s Eighth Amendment rights. Thus, defendants were entitled to qualified immunity.

Notable Points:

Qualified immunity for non-medical defendants: In order to overcome a defense of qualified immunity for the non-medical defendants, a plaintiff must show that supervisors had direct responsibility for the alleged violations, had actual knowledge of the violation, or gave tacit authorization for the violation. The Court held that the non-medical prison supervisors who approved Saylor’s transfer were not indifferent to his PTSD in violation of the Eight Amendment because Saylor provided “no specific evidence that they were involved in, or directly responsible for, his allegedly insufficient medical care.”

Qualified immunity for medical defendants: In order to overcome a defense of qualified immunity for the medical defendants, a plaintiff must show that defendants were personally responsible for violations, or were responsible for a systematic condition that violated Constitution. Here, the Court held that the State prison’s medical staff was not deliberately indifferent to Saylor’s PTSD even though Saylor argued that he received treatment that rose to the level of cruel and unusual punishment after his original treating physician left. Records showed that medical staff provided beyond the minimum standard required after his previous treater left, first providing Saylor with another physician at the same facility and then ultimately a physiatrist at a different facility. They also continued his medication consistent with their independent medical judgment. The staff also granted Saylor’s request for a private cell and sought his agreement for certain deviations from his original treatment plan.

Found in Found in DMHL Volume 35, Issue 1

Liability of Public Entities in Caring for Persons during Involuntary Commitment Process

Anderson v. Marshall Cty., Miss., No. 15-60051, 2016 WL 143303 (5th Cir. Jan. 12, 2016) (per curiam)

Estate of mentally ill person, who was taken into involuntary custody due to mental health crisis and later died in County Sheriff Department’s custody, failed to meet requirements for claims against hospital and County under 42 USC § 1983, as evidence did not demonstrate that defendants had a policy or practice amounting to deliberate indifference, as required under Monell. 

Background: After Princess Anderson arrived at a hospital in Marshall County Mississippi, she became increasingly agitated and physical with emergency room staff. Anderson tested positive for marijuana and opiates, and was diagnosed with acute psychosis. After a mental health evaluation, it was determined that Anderson required psychological care, but she refused voluntary admission. The chancery court granted the doctors’ request to have Anderson involuntarily committed and ordered the DeSoto County sheriff to take custody of her. Because Anderson was a resident of Marshall County, she was transported from DeSoto to Marshall County jail on Tuesday, February 8th. On arrival, DeSoto deputies told the Marshall County jail officer that Anderson had become agitated during the transport requiring that she be restrained. The Marshall jail officer did not review Anderson’s medical records (believing she was not entitled to view Anderson’s health information), and Anderson was placed in a cell. Although other inmates reported that Anderson needed emergency medical attention, she was not taken to a hospital until Friday, February 11th when Anderson’s mother arrived at the jail to take her to a hospital for follow-up tests. Shortly after arriving there, Anderson died of multisystem organ failure. Her mother, Angela Anderson, sued Marshall County and the Sheriff for violations of Princess Anderson’s rights under 42 U.S.C. § 1983. The district court determined that there was no § 1983 violation.

Holding: The Fifth Circuit held per curiam that Angela Anderson did not meet “the high bar required for Monell liability” under § 1983 and upheld the district court’s grant of summary judgment against her. On the failure to train claim, the Court held that the plaintiff failed to establish that Marshall County acted with deliberate indifference to the constitutional rights of inmates when adopting its training procedures. The Court also found the single incident exception to Monell’s general requirement of a pattern of unconstitutional conduct was not applicable given the evidence presented by the plaintiff.

Notable Points:

Plaintiff did not show evidence of a pattern of deliberate indifference: Anderson came forward with no evidence to show or allege a pattern of deliberate indifference to the constitutional rights of prisoners in Marshall County’s training, policies, or procedures. Without evidence of a pattern, Marshall County could not be found to have been on notice that its current training was producing unconstitutional results. Absent a pattern, the plaintiff must show deliberate indifference through the single incident exception.

Plaintiff’s evidence was not sufficient to meet § 1983’s single incident exception: The single incident exception would require that Marshall County’s training be so inadequate that the county was on notice that an untrained officer would have neglected a prisoner in the way Marshall jail officer was alleged to have done. The Fifth Circuit reiterated that “it is not enough to say that more or different training or supervision would have prevented Princess’s injuries.” It is almost always the case that more or better training could have prevented a poor outcome, so that cannot be enough to subject a county to governmental liability. Specifically, the Court said that, given the training provided, Marshall County “could not have anticipated that Officer Anderson and other correctional officers would ignore Princess’s litany of obvious ailments.”

Found in Found in DMHL Volume 35, Issue 1

Ineffective Assistance of Counsel in Death Penalty Case

Daniel v. Commr., Alabama Dept. of Corrections, 822 F.3d 1248 (11th Cir. 2016)

Failure of defense counsel to adequately investigate and present at penalty hearing the deprivations and traumas of the defendant’s past as mitigation evidence may constitute ineffective assistance of counsel and entitle defendant to a new penalty phase hearing.

Background: Renard Daniel was convicted of murder and sentenced to death. He filed for habeas corpus alleging ineffective assistance of counsel at the guilt and penalty phases of his trial. Daniel claimed that counsel was deficient in investigating and presenting mitigating evidence and rebutting aggravating evidence. Daniel’s childhood included witnessing his mother kill his father when he was three years old, being sexually abused by his stepfather for several years beginning when he was nine years old, and a history of borderline intellectual functioning. Daniel’s petition claimed that the sentencing judge and jury heard none of these details, and that the failure to present this evidence also prejudiced the outcome of the penalty phase of his trial. The District court, for procedural and substantive reasons, denied his claim. Daniel appealed to the Circuit court.

Holding: The Second Circuit looked to the American Bar Association (ABA) guidelines to evaluate the standard for investigations into mitigating evidence. The ABA suggests that investigations “should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.” The court found that Daniel’s trial counsel made no meaningful contact with Daniel’s mother, siblings, or mental health professionals and actually ignored the family’s request to inform him of Daniel’s extensive history of intellectual disabilities and being sexually abused. The court found that any reasonable and competent attorney would have made a deeper investigation of Daniel’s history, and thus there was enough evidence to bring an ineffective assistance of counsel claim. The court noted that evidence of mental problems, childhood abuse, and non-violent characterizations of past crimes is inherently mitigating and could change the jury’s mindset. It also found that the district court’s conclusion that Daniel failed to plead how he was prejudiced was an unreasonable application of Supreme Court precedent and federal law.

Found in DMHL Volume 35, Issue 2

Treatment over Objection to Restore Defendant to Competency to Stand Trial

U.S. v. Onuoha, 820 F.3d 1049 (9th Cir. 2016)

Ninth Circuit vacates and remands district court order authorizing treatment, finding government failed to show proposed treatment is in the defendant’s best medical interests.

Background: From 2004 to 2012, Onuoha served in the National Guard. From 2006 to September 2013, when he resigned, Onuoha worked as a Transportation Security Administration (TSA) screener at LAX Airport. A few hours after resigning, Onuoha returned to TSA headquarters at LAX and left a note for a former supervisor who had been involved in a suspension of Onuoha earlier that summer. The government alleged that Onuoha then made calls to a TSA checkpoint and to the LAX police department alluding to sending a message to America and the world and telling them to evacuate LAX. TSA headquarters was evacuated. Law enforcement officials went to Onuoha’s apartment and discovered that all of his belongings had been removed and all that remained was a large note reading “09/11/2013 THERE WILL BE FIRE! FEAR! FEAR! FEAR!” Later that day, Onuoha called LAX police and told them that he was at a church in Riverside, CA. He told police that he did not intend to make a bomb threat or injure anyone and that he only wanted to deliver a message. Onuoha waited at the church until he was apprehended.

Onuoha’s defense counsel submitted a report that Onuoha suffered from paranoid schizophrenia and planned to raise a diminished-capacity defense. The government requested a competency evaluation, and Onuoha was found not competent to stand trial. The government then filed a motion for an order to involuntarily medicate Onuoha with the goal of restoring him to competency, which the district court granted.

Holding: On appeal, the Ninth Circuit vacated and remanded, holding that the district court erred in finding that the proposed treatment was in Onuoha’s best medical interest under the Sell test. The court of appeals held that the district court was correct in finding that there is an important government interest at stake in prosecuting Onuoha, but the district court clearly erred in finding that the proposed course of treatment was in Onuoha’s best medical interests.

Notable Points:

The seriousness of the offense outweighed the “special circumstance” of time detained: The first Sell factor requires the government to prove that important governmental interests are at stake in prosecuting Onuoha. In Sell, the court recognized that there may be some special circumstances that diminish the government’s interest in prosecution, including the amount of time the defendant had already been confined. In this case, the court considered that Onuoha had already spent time in custody since September 2013, amounting to confinement beyond the minimum possible sentence. Nevertheless, the court found it important that a conviction and resulting sentence for the serious crime at issue is significant in terms of general deterrence, not just incapacitation of a specific individual. Here, the court concluded that the government’s valid interest in prosecuting Onuoha outweighed any special circumstances of Onuoha’s detention.

The government did not meet its burden for proving the fourth Sell factor by clear and convincing evidence: The fourth Sell factor requires the government to prove that administration of the drugs is medically appropriate and therefore in Onuoha’s best medical interest in light of his medical condition. The Ninth Circuit held that after hearing the testimony of a medical expert experienced in administering involuntary medication, the district court could not credit the expert’s testimony without exploring contradictory evidence in the record. In this case, contradictory evidence included that the recommended treatment increased the risk of side effects, the dosage proposed was higher than is generally recommended, and the use of the proposed drug does not conform to the community standard of care. Because involuntary medication orders are disfavored in light of the significant liberty interests at stake, and because the record demonstrated that the proposed treatment included dosages higher than generally recommended, the medication was not in Onuoha’s best medical interest.

Found in DMHL Volume 35, Issue 2

Competency Evaluations

Trueblood v. Washington State Dept. of Soc. and Health Services, 822 F.3d 1037 (9th Cir. 2016)

The Ninth Circuit finds that 7-day deadline for competence to stand trial evaluations is not constitutionally required and, therefore, the lower court’s permanent injunction required modification.

Background: In Washington, if a judge, defense attorney, or prosecutor raises a doubt about a criminal defendant’s competency, the court must order an evaluation. If the defendant is found incompetent, the court may order restorative services, dismiss the case, or refer the defendant for civil commitment. Washington law, as of July 2015, set a target deadline of 7 days or less for the state to complete a competency evaluation, with the option to extend the deadline to 14 days for clinical reasons and several defenses for failing to meet the deadline. Cassie Trueblood brought a Section 1983 claim on behalf of a plaintiff who was found legally incompetent to stand trial and detained in solitary confinement awaiting transfer to a hospital and the class of past and future detainees. Trueblood claimed that the current waiting times in jail for competency evaluations were so long that they were “beyond any constitutional boundary.” The district court granted Trueblood’s motion for summary judgment, stating that any waiting period beyond 7 days is suspect of infringing the detainee’s liberty interest in freedom from incarceration. The court also ordered a permanent injunction because it found that the state “‘had a long history of failing to adequately protect the constitutional rights’ of the class and had ‘demonstrated a consistent pattern of intentionally disregarding court orders.’” The state appealed only the part of the injunction that required a competency evaluation within 7 days, or longer upon a court-ordered extension for “clinical good cause.”

Holding: According to previous Supreme Court decisions, the length of the commitment must have a reasonable relation to the purpose of the commitment and the interests of the detainee and state must be weighed in light of constitutionally acceptable timeframes. The due process clause of the Fourteenth Amendment applies to the circumstances of pretrial detainees and their confinement. When the constitutionality of competency evaluation deadlines is challenged, a court must weigh the interests of the detainees and the state and benchmark those interests against what is constitutionally reasonable, not simply decide whether the deadlines are reasonable and achievable. The Ninth Circuit found that the lower court made no such analysis and erroneously based its findings on what was reasonable and achievable. The Ninth Circuit held that, for this reason, the lower court erred in upholding the 7 day deadline and, thus, that part of the permanent injunction was vacated and the case was remanded to the lower court. The Ninth Circuit charged the lower court with modifying the permanent injunction while “taking into account the balancing of interests related specifically to initial competency evaluations.”

Found in DMHL Volume 35, Issue 2

Liability of Correctional and Mental Health Officials

Glasgow v. Nebraska, 819 F.3d 436 (8th Cir. 2016)

Correctional and mental health officials do not owe a duty to third parties for injuries inflicted by inmates who are returned to the community following assessment by those officials. 

Background: Nikko Jenkins was a mentally ill inmate who was released from prison after 10.5 years of his sentence because the state changed Jenkins’ recommendation from inpatient to outpatient treatment, which accelerated his release. Upon his release, Jenkins killed 4 people in Omaha, one of them Curtis Bradford. Bradford’s mother, Velita Glasgow, filed suit against the state of Nebraska, among other defendants, for violation of Bradford’s substantive due process rights under the Fourteenth Amendment (§1983) and a state law negligence claim, arguing that the state acted with deliberate indifference in accelerating a dangerous prisoner’s release and violated Bradford’s right to life. Additionally, she argued that the state had a duty to protect Bradford from their prisoners and the state abandoned that duty when they knowingly released a mentally-ill prisoner who allegedly threatened to kill someone if he was released. The district court dismissed Glasgow’s claim, stating that the complaint was “devoid of any plausible allegation against [the] defendants.” Glasgow appealed.

Holding: The Eighth Circuit affirmed the lower court’s dismissal of all claims. An official may be sued if they violated a statutory or constitutional right that was “clearly established” at the time of the conduct. The Eighth Circuit held that “there is no general substantive due process right to be protected against the release of criminals from confinement.” Furthermore, because there was no evidence that the state’s conduct created a significant risk to a precisely defined group of people and that, if that group existed, Bradford was a part of that group, the state was not required by the Due Process clause to protect Bradford’s life from private actors. The court quickly did away with the negligence claim by holding that the plaintiff did not provide any legal authority to explain that the state had a legal duty to Bradford.

Found in DMHL Volume 35, Issue 2

ADA Integration Mandate

Steimel v. Wernert, 15-2377, 823 F.3d 902 (7th Cir. 2016)

For the purposes of the ADA integration mandate, protection is not limited to just those who are institutionalized. A state may violate the integration mandate if it refuses to provide already-existing treatment to disabled people where such services would improve community integration.

Background: Section 1915(c) of the Social Security Act established the Home and Community-Based Care Waiver Program, which allowed states to diverge from the traditional Medicaid program to provide community-based care for Medicaid receivers who would have otherwise been institutionalized. Nonetheless, the states must comply with the ADA’s integration mandate, which requires that the states administer services in “the most integrated setting appropriate” for qualified individuals.

The Indiana Family and Social Services Administration (The Agency) runs three of many home- and community-based services in the Medicaid program: the Aged and Disabled Medicaid Waiver Program (A & D waiver), the Community Integration and Habilitation Medicaid Waiver Program (CIH waiver), and the Family Supports Medicaid Waiver Program (FS waiver). The relevant differences between the three are the monetary cap on services and what must be demonstrated to qualify for said services. The FS waiver had a service cap of $16,545, whereas the CIH and A & D waivers did not have caps. In 2011, The Agency felt that it needed to change its policies to better adhere to A & D rules. The plaintiffs were moved to the FS waiver and were ineligible for the CIH waiver; they subsequently filed their claim, alleging that, because of this change, they enjoyed 30 fewer hours in the community than they did before the change. Furthermore, plaintiffs’ guardians alleged that the restriction of services led to lapses in supervision of plaintiffs that had and would result in injuries. The plaintiffs argued that this waiver structure violated the integration mandate because it effectively institutionalized the plaintiffs within their own homes and put them at risk for being institutionalized. The district court granted summary judgment to the defendants; plaintiffs appealed.

Holding: The Seventh Circuit extended the meaning of “institutionalized” to include in one’s own home, thus qualifying plaintiff’s argument. The court further noted that a state may be in violation of the integration mandate if it refuses to provide already-available services to individuals who could be more integrated into the community with such services. And because the plaintiffs sought services that already existed within the structure, the state was obligated to provide them if they enabled the plaintiffs to live in a more community-integrated setting.

Found in DMHL Volume 35, Issue 2

Liability Under 42 U.S.C. Section 1983 for Involuntary Custody

Myers v. Patterson, 819 F.3d 625 (2d Cir. 2016)

Second Circuit finds that the district court record was insufficient to support a finding of qualified immunity for police officer responding to child protective services report who took a mother into custody based on finding of danger to self or others due to mental illness, and remands for further proceedings.

Background: A Child Protective Services caseworker, Jodi Weitzman, was assigned to investigate Julia Johnson after reports from her son’s school. Weitzman eventually summoned police to Johnson’s home, believing that she should be sent for a psychological evaluation. The only record of the arrest was Weitzman’s handwritten notes; the police officer did not take notes and did not testify. The notes described Johnson as annoyed and uncooperative, and her son, DJM, as fearful. The officer, Patterson, arrested Johnson and she was sent to a medical facility for evaluation. The district court granted Patterson qualified immunity under 42 U.S.C. Section 1983 because Johnson did not put forth evidence that would suggest Patterson was not making a reasonable decision as a police officer when he detained her. The officer’s motion for summary judgment was granted.

Holding: A police officer must have probable cause to believe a person is at risk of harming himself or others in order to lawfully detain them. A police officer would have probable cause if other reasonable police officers would not disagree with his conduct or he was acting under the professional judgment of a licensed caseworker. The Second Circuit found that the record had insufficient detail to make a probable cause determination, one way or the other. The court vacated the district court’s assignment of qualified immunity and remanded the case to that court in order to further develop the record and reconsider the question of qualified immunity.

Notable Points:

Assessment for probable cause is anchored at time of custody: After Johnson was arrested, she was found to be a danger to herself and others, according to the psychological evaluation. Eventually, her parental rights were severed. Regardless of whether the subsequent facts make Patterson’s arrest seem more plausible, the court would only consider the facts at the time of the conduct.

Found in DMHL Volume 35, Issue 2

42 U.S.C Section 1983 Liability; Emergency Custody

Goines v. Valley Cmty. Servs. Bd., No. 15-1589, 2016 U.S. App. LEXIS 8512 (4th Cir. May 9, 2016)

Claim of Fourth Amendment seizure violation by officers who used independent emergency custody authority to take person into custody for mental health evaluation survives officers’ motion to dismiss, as facts alleged by plaintiff, if proved, would establish unlawful seizure. Related claim against CSB evaluator dismissed.

Background: In a complaint filed in the district federal court, Gordon Goines alleged that, on May 15, 2014, he was experiencing problems with his cable television service and was informed by a technician that one of his neighbors had spliced into his cable, and that that was the cause of the connectivity issues. Goines, according to his complaint, went across the street to a police station to report the theft. Goines took two officers back to his apartment, but the officers did not turn on the television and so did not hear the strange noises. Instead, according to Goines, the officers asked if Goines had any mental health issues or if he “wanted to talk to someone.” Goines believed they were referring to the problem with his television and so said yes. The officers then handcuffed Goines and transported him involuntarily to the area medical center. There he was interviewed by an intake clinician employed by Valley Community Services Board, who concluded that Goines suffered from a mental illness and posed a threat to the safety of his neighbors.

Goines was hospitalized until his release on May 20, 2014. Goines then brought an action under 42 U.S.C. § 1983, alleging that he was unlawfully seized without probable cause in violation of the Fourth and Fourteenth Amendments. Goines noted in his complaint that he suffers from cerebellar ataxia, which affects his speech, balance and fine motor coordination, but that he has no mental health issues. The district court granted defendants’ motion to dismiss for failure to state a claim and dismissed the complaint in its entirety.

Holding: On appeal, the Fourth Circuit held that the claims against the mental health intake clinician and her employer were properly dismissed, but that the claims against the two officers had been dismissed in error. The court found that the allegations in Goines’ complaint were sufficient to survive a motion to dismiss with regard to the officers because the complaint provided no reasonable basis for the officers to have concluded that Goines was a danger.

Notable Points:

Goines’ complaint plausibly alleged facts that no reasonable officer would have found sufficient to justify an emergency mental health detention: The Appeals Court noted that “a motion to dismiss tests the sufficiency of a complaint,” so that the Court’s review was limited to “a review of the allegations in the complaint itself.” The defendant officers, noting that Goines had included the officers’ Incident Report as an attachment, argued that, by including the Report, Goines had adopted all of the statements in the Incident Report as true. Those statements, which described behaviors by Goines and observations of Goines by the officers that Goines did not allege in his complaint, were cited by the officers as showing good cause for Goines’ seizure, and thereby supporting the officers’ motion to dismiss. Goines argued, and the Appeals Court agreed, that while Goines relied on the Incident Report for some of the facts in his complaint, he did not base his claims on the Incident Report, and none of his claims were dependent on the truth of any statements contained in the Incident Report. Goines merely used the report to support his theory that the police assumed from his physical difficulties that he was mentally ill. The Fourth Circuit determined that Goines’ complaint alleged facts indicating that the officers failed to make a sufficient inquiry before assuming a threat and transporting him to the evaluation center. Also important to the court were the alleged facts that (1) Goines had reported to the stationhouse seeking police assistance and (2) the officers were not faced with an emergency situation that would limit their ability to conduct further inquiry.

Goines’ complaint failed to allege a constitutional violation by intake clinician: In contrast to the officers’ Incident Report, the Fourth Circuit found that Goines had incorporated by reference the intake Screening Report. Probable cause to seize a person for psychological evaluation exists “when the facts and circumstances within the defendant’s knowledge and of which the defendant had reasonably trustworthy information were sufficient to warrant a prudent man to believe that the person poses a danger to himself or others.” The Screening Report, which Goines had adopted for purposes of his claims against the clinician and community services board, showed that the clinician had observed Goines “behaving as if he were responding to visual hallucinations” and had received seemingly trustworthy information from the officers that Goines had been suffering from auditory hallucinations. Additionally, Goines, while in the clinician’s presence, threatened to attack his neighbors after his release. Taken together, the court held that these facts established probable cause for the emergency mental health detention, and supported the clinician’s motion to dismiss.

Found in DMHL Volume 35, Issue 2

ADA Non-discrimination Requirement for “Public Accommodations”

Levorsen v. Octapharma Plasma, Inc., 828 F.3d 1227 (10th Cir. 2016)

Tenth Circuit adopts a definition of “public accommodations” under the ADA that results in a commercial plasma donation center being prohibited from refusing to do business with a person with schizophrenia who seeks to donate plasma.

Background: Brent Levorsen had various psychiatric disorders including borderline schizophrenia. For years, Levorsen donated plasma in exchange for money in an effort to supplement his limited income. In May 2013, he attempted to do so at a Salt Lake City branch of Octapharma Plasma, Inc., but an employee at that location became aware that Levorsen had borderline schizophrenia. The employee informed Levorsen that he was ineligible to donate plasma out of a fear of him lashing out during the donation process, possibly injuring himself or others. Levorsen then obtained a note from his psychiatrists clearing him to donate, but Octapharma maintained its refusal to allow Levorsen to donate. Levorsen then brought suit claiming discrimination under the ADA. The district court granted Octapharma’s motion to dismiss for failure to state a claim based on a determination that plasma donation centers do not fit the definition of a service establishment under the ADA.

Holding: The Tenth Circuit reversed the district court’s finding and held that plasma donation centers fit the definition of service establishments under the ADA. The court reasoned that the “ordinary meaning” of service establishment was not tied to the purchase of services from the establishment; rather, an establishment that provides a service, which could include accepting and paying for donations of plasma, is the essence of the term and what the ADA sought to cover. The court remanded the case for further proceedings consistent with that determination.

Found in DMHL Volume 35, Issue 3

Individuals with Disabilities Education Act (IDEA) and Mental Health Services

L.J. v. Pittsburg Unified Sch. Dist., No. 14-16139, 2016 U.S. App. LEXIS 16201 (9th Cir. Sep. 1, 2016)

Ninth Circuit rules that a student was eligible for special education services based on prior psychiatric hospitalizations and suicide attempts even though those incidents occurred outside the school environment, and directs that an individualized education plan be developed for the student despite findings that the student was performing well at school.

Background: L.J. was a primary school student exhibiting behavioral problems in grades two through five. L.J.’s mother repeatedly requested that the school district find L.J. eligible for special education under the IDEA, but the requests were denied. Through mediation, the school district agreed to transfer L.J. to another school, provide one-onone counseling through a paraeducator, and provide an assessment by a school psychologist. Despite the services provided, L.J. continued to act out violently and made two suicide attempts resulting in his confinement to a psychiatric hospital, which caused him to miss six school days. L.J.’s mother filed a request for a due process hearing claiming the school district failed to provide a Free Appropriate Public Education (FAPE) by denying L.J special education services and that the district failed to make requested records relating to L.J.’s counseling available. An administrative law judge ruled that L.J. did not have any qualifying disabilities and even if he had such qualifying disabilities, L.J. was not eligible for special education services because his academic performance was satisfactory when he was able to attend school. On appeal, the district court ruled that L.J. had qualifying disabilities, but did not need special education services because of his satisfactory academic performance. 

Holding: The Ninth Circuit reversed and held that the student was eligible for special education services. The court ruled that the student exhibited a need for services because his improved performance was due to his receipt of special education services, and that the student's psychiatric hospitalizations and suicide attempts were relevant to his eligibility for specialized instruction even though they occurred outside the school environment. The court also held that the school district committed procedural violations of the IDEA by failing to disclose school records and failing to conduct a health assessment.

Notable Point:

Qualifications for special education services: The court explained that a student with qualifying disabilities is nonetheless ineligible for special education services if support provided through general education services is sufficient to address the needs of the student. The Ninth Circuit ruled that the lower courts mischaracterized the specialized services L.J. was receiving as falling under general education services.

Found in DMHL Volume 35, Issue 3

Mental Health Treatment Regulation and First Amendment Claims of Patients

Welch v. Brown, No. 15-16598, 2016 U.S. App. LEXIS 17867 (9th Cir. Oct. 3, 2016)

Ninth Circuit upholds California statute prohibiting state-licensed mental health providers from engaging in sexual orientation change efforts (SOCE) with minor patients, rejecting claims under the Free Exercise and Establishment clauses of the First Amendment.

Background: California SB 1172 went into effect prohibiting mental health providers from engaging in SOCE with patients under 18 years of age. Plaintiffs provided counseling and other services involving SOCE and appealed the denial of a motion for a preliminary injunction to prevent the enforcement of California SB 1172. Plaintiffs claimed that SB 1172 violated the Free Exercise and Establishment Clauses by excessively entangling the state with religion and advancing or inhibiting a religion. Plaintiffs also claimed that SB1172 violated a substantive due process right to privacy in seeking a particular type of treatment.

Holding: On appeal, the Ninth Circuit affirmed the district court's judgment upholding the California statute. The court held that plaintiffs' claims failed because the scope of the law regulated conduct only within the confines of the counselor-client relationship and the prohibition against sexual orientation change efforts applied without regard to the nature of the minor's motivation for seeking treatment. The court also ruled that substantive due process rights did not extend to the choice of type of treatment or provider.

Notable Point:

Confines of the counselor-client relationship: The court specifically held that SB 1172 does not apply to clergy or pastoral counselors “as long as they do not hold themselves out as operating pursuant to their license.”

Found in DMHL Volume 35, Issue 3