Qualified immunity

Waters v. Coleman, No. 14-1431, 2015 WL 6685394 (10th Cir. Nov. 3, 2015)

Officers involved in the subduing and arresting of a man experiencing “excited delirium” were entitled to qualified immunity against an excessive force claim by the man’s estate

Background: On July 18, 2011, Alonzo Ashley and his girlfriend visited the Denver Zoo. Zoo patrons called security when Ashley tried to cool off under a water fountain, and the police were called when zoo security reported that Ashley attacked a security officer. When the first officer on scene, Jones, approached Ashley, he noticed that Ashley was sweating profusely—a symptom of excited delirium. Ashley and Jones struggled, and Jones eventually tackled Ashley with the assistance of two zoo officers. Ashley attempted to punch Jones, and Jones deployed his Taser to Ashley’s back. When the second officer, Coleman, arrived, Ashley was still resisting, and Jones deployed his Taser again. Coleman also deployed his Taser two times and noticed that “Mr. Ashley seemed extremely strong.” When three more officers, the officers were eventually able to subdue Ashley, and after he was handcuffed he remained on his stomach for between 2 and 5 minutes. Noticing that Ashley had vomited, Conner called for medical assistance. Ashley vomited once more and then stopped breathing. The officers began chest compressions, but Ashley was pronounced dead after paramedics transported him to the hospital. Ashley’s mother, Gail Waters, brought a § 1983 action against the police officers alleging excessive use of force that led to his death. The United States District Court for the District of Colorado denied the officers’ motions for summary judgment on the grounds of qualified immunity. The officers appealed.

Holding: The Tenth Circuit Court of Appeals reversed in part and dismissed in part, holding that all officers who participated in the arrest were entitled to qualified immunity. Additionally, the Tenth Circuit held that the Court of Appeals lacked jurisdiction to consider the denial of qualified immunity for lieutenant’s supervisory conduct as the ranking officer on scene after Ashley was handcuffed.

Notable Points:

Excessive force when detainee may be suffering from excited delirium: The Tenth Circuit did not reach the question of whether any officer’s conduct was objectively unreasonable and therefore unconstitutional because it found that, on the day of the incident, the law was not clearly established so as to alert the officers to the potential illegality of their conduct. Even though Ashley presented symptoms of excited delirium, the Tenth Circuit stated that it has never “required officers to refrain from a minimal use of force when dealing with an impaired individual,” noting several times the fact that a struggle was ongoing at the time that force was used. The Court noted that existing case law does, however, make it clear that continued use of force against a subdued or nonresisting person is not constitutionally permissible.

Found in Found in DMHL Volume 34, Issue 4

Qualified immunity

Pena v. Givens, No. 14-11020, 2015 WL 7434253 (5th Cir. Nov. 23, 2015)

State psychiatric ER employees are entitled to qualified immunity against claim by the estate of a man who died in the ER

Background: After arriving at a fire station and complaining that he was being chased, George Cornell was taken by police to the Parkland psychiatric emergency room (the “Psych ER”). Cornell resisted when technicians tried multiple times to take his vitals, and tried to leave the Psych ER. Cornell was taken into a seclusion room, held on a mat on the floor, and given a mixture of Haldol, Ativan, and Benadryl to calm him. When Cornell became agitated again and ripped up a floor tile, the technicians attempted to move him to a new room, but he resisted and they administered another injection of the same three medications. Cornell was held on his stomach for some amount of time (possibly up to 15 minutes) following the second injection before the technicians left the room. A nurse found him lying prone in the room, and Cornell was transferred to the main emergency room, where he died. Following Cornell’s death, the medical examiner found the cause of death to be undetermined but listed three potential causes: (1) mechanical compression; (2) underlying cardiac issues; or (3) effects of the medication he received in the Psych ER. Cornell’s representatives sued technicians, doctors, nurses, and hospital supervisors alleging excessive force, physical restraint, denial of adequate medical care, staff supervision violations. The United States District Court for the Northern District of Texas denied defendants’ motions for summary judgment on grounds of qualified immunity, and the defendants brought an interlocutory appeal.

Holding: On interlocutory appeal, the Fifth Circuit held per curiam that the technicians, nurse, doctor, and supervisors were all entitled to qualified immunity. The Court noted a lack of binding authority holding that “a medical professional’s restraint of an individual in an emergency medical situation constitutes a Fourth Amendment seizure.” Further, the Court noted that “even police officers’ use of restraint does not implicate the Fourth Amendment if they are acting in an emergency-medical-response capacity” (emphasis in original). Important to the Fifth Circuit on both the excessive force and substantive due process claims was the fact that Cornell resisted the Parkland staff. Regarding the substantive due process violation due to physical restraint, the Fifth Circuit noted that the staff’s conduct violated hospital policy but did not amount to conduct that “shocks the conscience.” 

Regarding the denial of adequate medical care, the Fifth Circuit noted the “recognized…special relationship for incarcerated and involuntarily committed individuals,” which requires a state to protect the citizen from harm.2 Plaintiffs must demonstrate that state official acted with “deliberate indifference.” Thus, the defendants must have been “on notice” of Cornell’s heart condition and then consciously refused to provide further care. Here, the Fifth Circuit pointed out that “Cornell resisted the officers when they tried to provide care,” and posited that they could not say “that a reasonable jury could conclude that the failure to treat a heart condition after a patient refuses care and begins attacking staff amounts to deliberate indifference.” Finally, regarding the lack of supervision claim, the Fifth Circuit noted that the subordinates’ actions had not been found to be a constitutional violation, therefore the supervisors could not be held liable for constitutional violations.

Notable Points:

Restraint while rendering emergency medical aid: Even though the training given to technicians warned not to hold patients in a prone position for extended periods of time, the Fifth Circuit cited Sheehan in saying that “if an officer acts contrary to her training…that does not itself negate qualified immunity where it would otherwise be warranted.”

Found in Found in DMHL Volume 34, Issue 4

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

Due process and capacity determinations in immigration proceedings

Diop v. Lynch, 807 F.3d 70 (4th Cir. 2015)

Immigration judge’s inquiry into appellant’s mental competence to participate in removal proceedings met due process requirements, and resultant denial of appellant’s request for further delay to obtain a mental health evaluation did not violate due process and is upheld on appeal

Background: Madiagne Diop, an alien and native of Senegal, who was diagnosed with psychosis. Following an arrest related to a psychotic episode at his workplace, Diop appeared before an immigration judge in Baltimore, Maryland five times between November 2012 and May 2013. At a hearing in December 2012, the immigration judge questioned Diop regarding his mental health and competency and found Diop competent to participate in the removal proceedings. In April 2013, Diop moved to administratively close or continue proceedings pending the passage of an immigration reform bill in Congress. The immigration judge refused and ordered Diop’s removal if he would not voluntarily depart. On June 6, 2013, Diop filed an appeal to the BIA arguing that the immigration judge should have administratively closed or continued the case in order to allow him to receive a psychological evaluation. The BIA found no clear error in the immigration judge’s determination of Diop’s competency, and Diop petitioned for review by the Fourth Circuit.

Holdings: The Fourth Circuit Court of Appeals rejected Diop’s procedural due process claim. It held that Diop’s procedural due process rights were satisfied by the immigration judge’s cautionary measure of assessing Diop’s competency in a separate hearing and “inquiring specifically about his mental health and ability to communicate with counsel.” Because competency has “long been considered an issue of fact,” the immigration judge’s finding of competency was reviewed under a “substantial evidence standard”: findings of competency are treated as conclusive unless the evidence presented “was such that any reasonable adjudicator would have been compelled to conclude the contrary.”

Notable Points:

The process for addressing competency in removal proceedings: The BIA stated that the immigration judge should start from a presumption of competency and that if there are no indicia of incompetency, the inquiry ends. It established a competency standard in Matter of M-A-M requiring (1) "rational and factual understanding of the nature and object of the proceedings," (2) ability to "consult with the attorney or representative if there is one," and (3) "a reasonable opportunity to examine and present evidence and cross-examine witnesses."

Found in Found in DMHL Volume 34, Issue 4

Civil Commitment of Sexually Dangerous Individuals

In re Johnson, 2016 ND 29, 2016 WL 669398 (ND Feb. 18, 2016)

Release of an individual from civil commitment under the state’s sexually dangerous individual law ordered upon finding that the district court failed to cite on the record facts establishing by clear and convincing evidence that the offender “has a present serious difficulty controlling his behavior.”

Background: Jeremy Johnson was committed as a sexually dangerous individual in 2012, and in 2013, Johnson petitioned the court for discharge. Finding that Johnson was still a sexually dangerous individual, the district court continued his commitment; Johnson appealed and the North Dakota Supreme Court remanded the case for further findings of fact on the question of whether Johnson had difficulty controlling his behavior. On remand, the district court made additional findings and again issued an order continuing Johnson’s commitment. Johnson appealed the district court’s order continuing his commitment as a sexually dangerous individual, arguing that the court’s findings were insufficient to demonstrate that he had serious difficulty controlling his behavior.

Holdings: The Supreme Court of North Dakota concluded that the district court’s order and findings were insufficient and reversed the order continuing Johnson’s commitment, directing that Johnson be released from civil commitment. Specifically, the Supreme Court of North Dakota found that the district court had not put forward specific factual findings to support the legal conclusion that Johnson’s mental disorder involved serious difficulty controlling his behavior that sufficed to “distinguish a dangerous sexual offender whose disorder subjects him to civil commitment from the dangerous but typical recidivist in the ordinary criminal case.” When the district court fails to put forward such findings, it errs as a matter of law.

Notable Points:

Lack of progression in treatment is not sufficient: The Supreme Court of North Dakota made it clear that an actual finding of serious difficulty controlling behavior must be made in order to justify denial of a petition for discharge from civil commitment of a sexually dangerous individual. Specifically, this means that a court may not rely solely on evidence of lack of progression in treatment to prove that a committed individual has difficulty controlling his behavior—such lack of progress does not necessarily equate to a serious difficulty controlling behavior. Although the Supreme Court conceded that lack of progress in treatment “may indicate serious difficulty controlling behavior” it “decline[d] to infer one equals the other.” The State must present specific evidence (and the court must make a specific finding) regarding whether a defendant has serious difficulty controlling his behavior.

Found in Found in DMHL Volume 35, Issue 1

Confidentiality of Medical Records

Stuckey v. Renaissance at Midway, 2015 IL App (1st) 143111, 45 N.E.3d 1151 (Il. Dec. 18, 2015)

In litigation over nursing home liability for a resident’s assault on another resident, state confidentiality laws prohibit and prevent discovery by the plaintiff of the medical records of the resident who committed the assault.

Background: While a resident at a long-term care facility operated by defendants, Robert Holman was physically assaulted by another resident. Plaintiff Johnnie Stuckey— as attorney-in-fact for Holman—filed a personal injury action to recover damages incurred in the assault. Plaintiff moved to compel defendants to produce partially redacted records regarding the resident who assaulted Holman. Defense counsel refused and was held in “friendly contempt.” On appeal, defendants contended that the circuit court erred in ordering production of the records, arguing that both the Illinois’ Mental Health and Developmental Disabilities Confidentiality Act (the “Confidentiality Act”) and physician-patient privilege prohibited disclosure of the records.

Holdings: The appellate court agreed with the defendants, reversing the circuit court’s discovery orders and vacating the order imposing a fine on defendants for refusal to comply with those discovery orders. The appellate court concluded that the records were protected by the Confidentiality Act and that, because the plaintiff had not shown any exception to the provisions of the Act, the defendant could not be compelled to produce the records.

Notable Points:

Plaintiff failed to raise any possible exception to the Confidentiality Act that would authorize disclosure: Because plaintiff sought records including patient information forms, nurse’s notes, care plans, and social service progress notes—all documents that constitute “records” or “communications” under the Mental Health and Developmental Disabilities Confidentiality Act—plaintiff was required to demonstrate a specific exception to the Confidentiality Act that allowed disclosure. Statutory exceptions, however, are “narrowly crafted” and plaintiff never asserted the applicability of any exception.

Found in Found in DMHL Volume 35, Issue 1

Sentencing of Defendants with Intellectual Disability and/or Psychiatric Issues

State v. Dabney, No. 42650-2014, 2016 WL 768121 (Idaho Feb. 29, 2016)

Trial court did not abuse its discretion when it (1) declined to reduce the sentence of defendant convicted of sexually abusing two children based upon the mitigating developmental and psychiatric circumstances, and (2) relinquished defendant to custody of Board of Correction when a suitable community-based placement could not be found.

Background: Darrien Dabney, a developmentally disabled 18-year-old, forcibly sodomized two 6-year-old boys with whose family he had been living for less than a month. He was indicted for two counts of lewd conduct and ultimately pled guilty pursuant to a plea agreement: the State would dismiss the other count and would recommend a suspended sentence of 20 years (5 fixed and the remaining indeterminate), with Dabney to be committed to a secure residential center for mentally delayed adults. When the district court determined that no suitable community placement could be found, it relinquished jurisdiction over Dabney and remanded him to the custody of the Idaho Board of Correction. Dabney filed a motion asking for reconsideration of his sentence, and, finding that Dabney had not presented any new information in support of his motion, the lower court denied reconsideration of his sentence or relinquishment of jurisdiction.

Holdings: The Supreme Court of Idaho affirmed (1) the defendant’s sentence, (2) the lower court’s order relinquishing jurisdiction, and (3) the lower court’s order denying the motion to reduce the sentence.

Notable Points:

The district court did not abuse its discretion in pronouncing its sentence or relinquishing jurisdiction over defendant: The Supreme Court of Idaho held that the trial court’s sentence was not unreasonable despite the mitigating evidence presented. Although mitigating circumstances included the defendant’s abusive upbringing, sexual abuse at age 10, and extensive psychiatric issues, the sentencing decision was not an abuse of discretion because it was based primarily on the need to protect the community. Because no suitable community placement existed, the court did not err when it eventually relinquished jurisdiction over the defendant. The trial court had retained jurisdiction for a period of time following sentencing, but once it was determined that there was no appropriate community-based facility that could allow for treatment of the defendant, it was not unreasonable for it to relinquish its jurisdiction. This holding was supported by the fact that the defendant had “ample opportunity to provide evidence regarding placements to allay [the] court’s concerns, [but] he did not do so.”

Incarcerating defendant instead of placing him on probation is constitutional: The Supreme Court also held that the district court’s decision not to place Dabney on probation clearly did not violate any of his constitutional rights. Because Dabney had already been sentenced to prison—and the only issue before the court was whether the sentence would be suspended and Dabney would be placed on probation—he had no constitutional or inherent right to be released prior to the expiration of his prison term

Found in Found in DMHL Volume 35, Issue 1

Competency to Stand Trial and the Right to Self-Representation

State v. Hawkins, 363 P.3d 348 (Idaho 2015)

It is not a violation of due process to make a retroactive determination, on remand, of a defendant’s competency at the time of the original trial where there is a sufficient record to support that finding. When raising an Edwards challenge for the first time on appeal, the burden is on the defendant to show fundamental error.

Background: Faron Hawkins was convicted of two counts of robbery. At trial, he admitted to robbing the banks, but contended that he did so under duress from previous involvement with agencies (including the Central Intelligence Agency and Defense Intelligence Agency). The Court of Appeals vacated Hawkins’ conviction, holding that the district court had erred by not ordering a psychiatric evaluation and holding a competency hearing. At the competency hearing on remand, two experts determined that Hawkins was competent during the course of his legal proceedings. The state filed an interlocutory appeal based on the Court of Appeals previous language that suggested a retrospective competence hearing was disallowed. The Court of Appeals clarified that a retrospective competence hearings are permissible. On remand for the second time, the district court set another competence hearing to allow Hawkins to cross-examine witnesses and present his own expert. Before that hearing, Hawkins moved to proceed pro se, which the district court granted. After several months of delays due to Hawkins’ actions, the court proceeded to find Hawkins competent and sentence him despite his never presenting evidence regarding competency. Hawkins appealed. 

Holdings: The Supreme Court of Idaho affirmed the judgment of the district court, finding no reversible error in the actions of the court below. Specifically, the Supreme Court of Idaho found that the district court’s retroactive determination of Hawkins’ competency to stand trial did not violate his due process rights. Further, the Court held that, although a standard was not yet established for reviewing, in response to an Indiana v. Edwards challenge, a lower court’s granting of a pro se motion, the standard of review was in fact controlled by the fact that Hawkins raised the issue for the first time on appeal. Therefore, the lower court’s actions were to be reviewed under the fundamental error standard, and the Court found that Hawkins did not establish a clear violation of a constitutional right. The Court agreed with other courts that “Edwards allows, but does not require, states to insist upon representation by counsel for certain “gray-area” defendants. It does not give such a defendant a constitutional right to have his request for self-representation denied.”

Found in Found in DMHL Volume 35, Issue 1

Insanity Defense and Double Jeopardy

Otis v. State, No. S15A1717, 2016 WL 462657 (Ga. Feb. 8, 2016)

A criminal defendant can present an insanity defense without providing prior notice to the prosecution if the defense calls no medical experts, and the decision of the trial court to declare a mistrial, over defendant’s objection, when defendant reveals at trial that an insanity defense will be pursued, must result in dismissal of the charge against the defendant, as a re-trial would subject defendant to double jeopardy.

Background: Geary Otis was charged with malice murder and other offenses arising out of the assault of one victim and the death of another. After a jury was impaneled and the State presented opening statements, the defense revealed, at the end of its opening statement, its intent to pursue an insanity defense. The defense had not given prior notice to the State, and the State objected—out of the presence of the jury—to the raising of the insanity defense on the basis of this lack of prior notice. At a hearing on the following day, the trial court declared a mistrial (over Otis’s objection) and rescheduled the case for trial in two weeks. Otis then filed a plea in bar on the grounds of double jeopardy, and the trial court denied the plea in bar. Otis appealed, asserting that the trial court had erred both in declaring a mistrial and in denying his plea in bar.

Holdings: The Supreme Court of Georgia agreed with Otis and reversed the circuit court’s denial of his plea in bar. The Court further held that the circumstances of the case did not demand entry of a mistrial order, and that the trial court had erred in entering that order over the defendant’s objection. Because the mistrial was improperly declared, double jeopardy prevented Otis from being tried again.

Prior notice of intent to pursue an insanity defense is required only when the defendant intends to rely on expert testimony: In Abernathy v. State, 462 S.E.2d 615 (Ga. 1995), the Georgia Supreme Court stated that the purpose of notice of an insanity defense was to “give the State an opportunity to obtain an independent expert mental health evaluation” and that a defendant “need not provide notice pretrial if he intends to present evidence of mental illness solely through lay witnesses.” This decision was made in the context of interim review of a death penalty case, but the Georgia Supreme Court clarified that the holding and reasoning were not limited to that context, and applied in all cases in which a defendant intends to assert an insanity defense.

Found in Found in DMHL Volume 35, Issue 1

Mitigation Evidence and Ineffective Assistance of Counsel

Salazar v. State, No. SC13-1233, 2016 WL 636103 (Fla. Feb. 18, 2016)

In a first degree murder case in which the defendant received a death sentence, the failure of defense counsel to investigate and present mitigation, including evidence regarding the defendant’s traumatic childhood and low intellectual functioning, sufficiently “undermined” “confidence in the outcome” so as to warrant remand for new hearing.

Background: After a jury trial, Neil Salazar was convicted of first-degree murder and related crimes and sentenced to death. The Supreme Court of Florida affirmed both the conviction and the death sentence. Salazar appealed and petitioned for a writ of habeas corpus. The basis of the appeal was that Salazar’s trial counsel was deficient and had failed to investigate his background and intellectual functioning and present mitigation evidence at the penalty phase.

Holdings: The Supreme Court of Florida denied Salazar’s habeas petition, but they remanded the case for a new penalty phase, holding that Salazar’s trial counsel had provided ineffective assistance at the penalty phase. The court held that Salazar had demonstrated both deficiency and prejudice in regard to his trial counsel’s performance at the penalty phase. Specifically, the court found that there was a reasonable probability that the result would have been different if trial counsel had presented evidence regarding Salazar’s low IQ, adaptive deficits, head injury, and family history.

Notable Points:

Because the known evidence would lead a reasonable attorney to investigate further, counsel’s failure to do so was objectively unreasonable: Salazar’s trial counsel was deficient—an element of the ineffective assistance claim—in failing at the penalty phase to investigate Salazar’s background and intellectual functioning. Specifically, a psychologist’s report from the defendant’s preliminary evaluation had directly informed trial counsel of defendant’s mental health problems and possible brain damage. Given this information, it was objectively unreasonable for Salazar’s trial counsel not to investigate further.

Counsel’s failure resulted in prejudice at the penalty phase: The Supreme Court of Florida also held that Salazar had been prejudiced by his trial counsel’s failures in the penalty phase. Considering the additional mitigation evidence relating to Salazar’s intellectual functioning, low IQ scores, adaptive deficits, childhood head injuries, and family history, there was a reasonable probability that hearing this additional evidence at the penalty phase would have led to a result other than the imposition of a death sentence.

Found in Found in DMHL Volume 35, Issue 1

Intellectual Disability and the Death Penalty

Oats v. State, 181 So. 3d 457 (Fla. 2015), reh'g denied (Mar. 15, 2016)

Inability of defendant to show manifestation of intellectual disability before age 18 does not, alone, result in failure of Atkins claim; Hall v. Florida requires a court to analyze all three prongs of the intellectual disability diagnostic standard, and requires a different legal analysis of the onset prior to age 18 prong than was undertaken by the trial court.

Background: Sonny Boy Oats, Jr., was tried and convicted of robbery and first-degree murder in 1979 and his conviction was affirmed on appeal. In 1994, he sought postconviction relief but was denied. Post-Atkins, he filed a motion to vacate his death sentence on the grounds that he was intellectually disabled. The circuit court held an evidentiary hearing and denied the motion, concluding that Oats had not been able to establish that his intellectual disability had manifested prior to age 18 as required by Florida’s statutory test for determining intellectual disability.

Holding: The Florida Supreme Court reversed, giving three reasons for its decision. First, it noted that the Supreme Court’s decision in Hall v. Florida indicated that the lower court should have addressed all three prongs of the intellectual disability diagnostic standard and not denied the claim based on the apparent failure to meet one of the prongs. Second, the Court held that the lower court failed to consider all of the testimony presented, including evidence from prior postconviction proceedings. Third, the Court found that the lower court erroneously conflated “manifested” with “diagnosed,” an error upon which it based its conclusion that Oats failed to establish his intellectual disability.

Notable Points:

Hall v. Florida requires a circuit court to address all three prongs of the intellectual disability test rather than finding one factor to be dispositive: One of the three prongs of the intellectuality disability test is manifestation of the condition before age 18, but that determination is not dispositive. The Florida Supreme Court held that it was reversible error for the trial court not to consider all three prongs of the intellectual disability test, and to rely solely on the third prong of the test in denying Oats’s claim. The Court, however, was careful to say that, although this was reversible error here, failure to consider all three prongs should not constitute per se reversible error. Nonetheless, all three prongs must be considered because they are interdependent and, even when one is not satisfied, “a finding of intellectual disability may still be warranted based on the strength of the other prongs.”

The circuit court erred in making its conclusion without weighing all testimony presented by defendant: The Florida Supreme Court also held that it was error for the circuit court not to consider all the testimony that Oats presented. The parties stipulated to consideration of the mental health evidence presented in a previous proceeding, and the circuit court did not require the parties to recall all witnesses who testified previously. In its decision, however, the circuit court stated that it was “not in a position to reevaluate the credibility of the witnesses who testified or the evidence” considered in those prior proceedings and simply accepted the postconviction court’s ruling. The Florida Supreme Court held that the lower court should have permitted the parties to recall the witnesses in a new proceeding and submit evidence so that it could be considered and weighed.

Legal standard for analyzing whether intellectual disability manifested before age 18: The Florida Supreme Court noted that the manifestation prong is used to ensure there was evidence of intellectual disability during the developmental period, and that to require evidence of diagnosis before age 18 would render the first two prongs of the standard moot. The Court pointed to the U.S. Supreme Court’s analysis in Hall as demonstrative of how evidence of manifestation, without affirmative diagnosis, can lead to a clear finding that the prong was established.

Found in Found in DMHL Volume 35, Issue 1

Administration of Psychotropic Medication over Objection of NGRI Patient

People v. Marquardt, 364 P.3d 499 (Co. 2016)

In the case of a person who is a hospitalized NGRI acquittee and currently receiving antipsychotic medication that is preventing further deterioration of the person but is insufficient to improve person’s condition, the Colorado Supreme Court rules that the person’s objection to increased medication must be honored despite state’s claim that more medication is needed for any improvement.

Background: After being found not guilty by reason of insanity and being diagnosed with schizoaffective disorder, bipolar type, with prominent paranoia, Larry Marquardt was committed to the Colorado Mental Health Institute at Pueblo (“CMHIP”). Marquardt, at first, took ten milligrams of antipsychotic medication daily, and refused to take more. Because his attending psychiatrist felt that a dose of ten milligrams was only partially effective, the State petitioned to have the dosage increased to the maximum of twenty milligrams daily. The trial court found that an increased dosage was “necessary to prevent a significant long-term deterioration in [Marquardt’s] mental condition.” Because the court determined that Marquardt would not be released from the institution unless his condition improved, and that that was unlikely without an increased medication, the trial court ordered Marquardt to submit to the increased dose. Marquardt appealed, arguing that the trial court had misapplied the controlling case law, People v. Medina, 705 P.2d 961 (1985).

Holding: The Supreme Court of Colorado found that the trial court had applied the incorrect legal test—misapplying Medina by relying on evidence that Marquardt was not improving on the lower dose. Rather, the court explained, Medina required that a court must find a patient to be deteriorating in order to justify increased medication against the patient’s wishes.

Notable Points:

Deterioration, not just lack of improvement, is required for an order of forced medication: People v. Medina, 705 P.2d 961 (1985) sets forth a test to determine whether non-consenting treatment by antipsychotic medication may be administered to an involuntary committed mental patient. The test is one that involves mixed questions of law and fact, and is a four-factor test. The State must show: “(1) that the patient is incompetent to effectively participate in the treatment decision; (2) that treatment by antipsychotic medication is necessary to prevent a significant and likely long-term deterioration in the patient's mental condition or to prevent the likelihood of the patient's causing serious harm to himself or others in the institution; (3) that a less intrusive treatment alternative is not available; and (4) that the patient's need for treatment by antipsychotic medication is sufficiently compelling to override any bona fide and legitimate interest of the patient in refusing treatment. To determine whether a patient is “in danger of long-term deterioration” it is not enough to show that a patient will not likely recover without an increased dose of medication—the State must show that there is a danger of long-term deterioration in the patient’s condition. Although the state has a legitimate interest in institutional security, that interest is not sufficient to expose those in its care to increased or nonconsensual medication “solely for the purpose of alleviating the risk of some possibility of future injury or damage to the patient or others.”

Found in Found in DMHL Volume 35, Issue 1

Psychiatric Hospital Liability in Patient’s Suicide

P.W. v. Children's Hosp. Colorado, 364 P.3d 891 (Co. 2016)

Hospital’s affirmative defenses of comparative negligence and assumption of risk in the case of a minor admitted to the psychiatric hospital as a “known suicidal patient” rejected based on finding that the hospital’s “professional duty of care encompasses, and is shaped by, the plaintiff-patient’s medical condition” as it is known to the hospital.

Background: P.W. sued Children’s Hospital Colorado (“the Hospital”) for negligence when his son, K.W., attempted to kill himself by hanging while at the Hospital. When K.W. was first transferred to the psychiatric unit, notes stated that he was admitted for treatment of depression and suicidal ideation—specifically mentioning cutting and hanging—and was placed on “high suicide precautions.” These precautions included the requirement that patients remain in staff sight at all times except for when using the bathroom. When in the bathroom, however, staff should communicate with the patient every 30 seconds. K.W. was allowed use of the bathroom at 9:55 p.m., and at 10:15 p.m., he was discovered to have hanged himself with his scrub pants. K.W. was diagnosed with severe, permanent anoxic brain injury and not expected to recover. P.W., K.W.’s father, sued the Hospital individually and on behalf of his son for negligence, and the Hospital asserted affirmative defenses of comparative negligence and assumption of risk. P.W. moved to dismiss the defenses, and, treating the motion as one for summary judgment, the district court granted the motion. Holding: The Supreme Court of Colorado affirmed, holding that the Hospital could not assert either a comparative negligence or assumption of risk defense as a matter of law. Although the Hospital had also petitioned for an order to gain access to K.W.’s preincident mental health records, the Supreme Court did not address the trial court’s discovery order. 

Notable Points:

The Hospital assumed an affirmative duty to protect K.W. from self-harm: When admitting a suicidal patient to a psychiatric in-patient unit, a hospital assumes an affirmative duty of care, which subsumes a patient’s own duty of self-care. Thus, a patient cannot be found comparatively negligent for a suicide attempt. In this case specifically, the Hospital agreed to use reasonable care to prevent a known suicidal patient from attempting to commit suicide. That duty cannot be overcome by a comparative negligence or assumption of the risk defense.

A capacity-based theory of comparative negligence does not apply: A hospital’s duty of care encompasses a patient’s individual characteristics—including known medical conditions—and the duty of care can be continually shaped by those characteristics. As such, the capacity for negligence of a sixteen-year-old patient, known to be suicidal, was not relevant to determining whether he could be held comparatively at fault for injuries sustained in a suicide attempt. While in the Hospital’s care, the hospital had a duty to protect him from foreseeable harm, and when he was known to be suicidal at intake, that foreseeable harm included harm from a possible suicide attempt.

Found in Found in DMHL Volume 35, Issue 1

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