Darcy Covert Stritmatter Law, University of Washington School of Law
Federal pre-trial booking and detention rights
Federal post-conviction protections
State law claims
What you can do
Exhaustion requirements (jail grievance process and tort claim forms)
ADA and Rehabilitation Act
Personal Restraint Petitions (PRPs)
Wage/employment issues
Immigration detention (governed by Fifth Amendment)
First Amendment
A person who hasn’t been convicted can’t be punished can’t be treated as if they have been convicted
Fourth Amendment objective reasonableness standard
General population: blanket strip search policy allowed
Limitation: minor offense + not entering general population = need reasonable suspicion to strip search
Fourteenth (not Fourth or Eighth) Amendment governs excessive force claims for persons being booked or detained pre-trial
But still objective reasonableness standard
What is objectively reasonable? Consider:
Need for force vs. amount used
Extent of the client’s injury
Any effort to temper or limit force
Severity of the security problem
Threat reasonably perceived Whether client was actively resisting
Can’t use intermediate force on person who does not pose an immediate threat, even if not complying with commands
Intermediate force is likely to cause pain or injury but neither intended nor reasonably expected to cause death. Think:
Taser
Physical force
Pepper spray
Tasers and physical force to subdue mentally ill person who is agitated and running through booking area is reasonable
Using taser or physical force after person is handcuffed and under control is unreasonable
Spraying pepper spray in arrestee’s eyes then leaving him for an extended period without taking steps to alleviate pain could be excessive
Fourteenth Amendment governs the right to adequate medical care for persons being booked or detained pre-trial
To prove violation, must show all three:
Defendant made intentional decision about conditions of confinement
Conditions put plaintiff at substantial risk of suffering serious harm
Defendant didn’t take reasonable available measures to abate risk, even though a reasonable official in the circumstances would have understood high degree of risk involved
Right to proper medical screening at intake or shortly after booking
Examples
Use of alcohol screening form instead of opiate screening form leading to person not being placed in medical observation unit is violation
Failure to conduct health screening for 28 hours resulting in failure to treat known injuries sustained during arrest is violation
Right to in-person safety checks if known to need medical attention
Failure to check on person sweating, disoriented, and lethargic at booking for more than six hours is violation
Medically untrained jail guards monitoring person placed on “medical watch” through window at intervals is violation
Right to medical care/accommodations if known to have medical issues
Right to necessary prescription medication failure to provide anti-seizure medication to person with epilepsy is violation
Right to lower bunk if risk of serious injury without one failure to give lower bunk when requested because of epilepsy is violation
Failure to follow discharge instructions from ER for person taken to ER for serious medical need is violation
Persons being booked have Fourteenth Amendment due process interests in their personal property
But these claims are best brought as state negligence claims (which we will discuss later)
Eighth Amendment is mandate for basic human dignity, not comfort. Must provide food, clothing, shelter, sanitation, medical care, safety
Multiple conditions of confinement can have combined effect of producing violation, but must all deprive client of same, identifiable human need (e.g., food, warmth, safety)
To prove violation, must satisfy two requirements:
Objective: deprivation denies person of minimal civilized measure of life’s necessities
Subjective: deliberate indifference to person’s health or safety (sufficiently culpable state of mind)
Must (1) be aware of facts from which inference could be drawn that substantial risk of serious harm exists and (2) actually draw the inference
Overcrowding, though not per se violation unless linked to violence or unfit habitation
Severe or prolonged unsanitary conditions
Inadequate food
Extreme temperatures, poor lighting/ventilation
Exposure to infectious disease
To keep someone in solitary, need reasonable relationship between necessity to limit liberty and accomplishment of legitimate penal aim
High risk for suffering severe mental anguish in solitary more likely to prove solitary deprives of necessity of human existence
Long periods more likely to be violations
Denton v. Rainier (W.D. Wash. 2023): because defendants tried to work with Denton for him to be released from solitary, they weren’t deliberately indifferent
Williams v. Sinclair (W.D. Wash. 2024): because plaintiff engaged in unsafe behavior before placement in solitary, no causation between solitary and injuries or evidence of knowledge that solitary was causing injuries
Bell v. Washington State Department of Corrections: class action challenging DOC’s use of “presumptive” drug tests to punish incarcerated persons for alleged drug possession
Division II recently reversed trial court’s dismissal of suit
Duty to take reasonable steps to protect incarcerated persons from violence
Deliberate indifference: actual knowledge of risk may be inferred from obviousness
Examples
Placing vulnerable people in general population
Labeling people as “snitches”
Ignoring known risks of targeted attacks
Two requirements in medical context:
Objective: serious medical need
Means condition could result in further significant injury or cause unnecessary and wanton infliction of pain
Subjective: defendant knew of and disregarded excessive risk to person’s health and safety
Defendant denied, delayed, or intentionally interfered with medical treatment, or way medical staff provided care
Speculative and generalized fears of harm aren’t enough
Negligence, malpractice, or mere difference of opinion aren’t enough
Denial of gender-confirmation surgery is a violation if plaintiff can prove medical necessity
Persons in solitary because of “violent tendencies” who have been deemed a threat to the jail’s staff and peers still entitled to at least two hours per week of exercise
“Violent” people in administrative segregation entitled to outdoor exercise one hour per day, five days a week unless inclement weather, unusual circumstances, or disciplinary needs make that impossible
Must show all three:
Force applied maliciously and sadistically for the purpose of causing harm, rather than as good-faith effort to maintain or restore discipline (i.e., not for legitimate law enforcement purpose)
Force used was objectively excessive and unnecessary under all the circumstances
Defendant’s conduct caused injury that is more than de minimis
Injury need not be serious
Consider same factors as in pre-trial context:
Need for force vs. amount used
Any effort to temper or limit force
Severity of the security problem
Threat reasonably perceived
Whether client was actively resisting
Sexual assault by guard is definitionally excessive force
Washington hasn’t waived sovereign immunity for claims brought under State constitution money damages not available for those claims; file PRP for relief from unconstitutional conditions
State has waived sovereign immunity for tort claims, which are often much easier to prove than § 1983 claims
Jailers have duty to ensure the health, welfare, and safety of incarcerated persons
Jail doctors must exercise same care as average, competent doctor
Jailers must use reasonable care to prevent assaults by one incarcerated person against another
Jailers must know injury will be inflicted or have good reason to anticipate it
Jailers must take care to keep controlled substances out of facility
Felony bar: no claim if committing a felony at the time of the occurrence causing the injury and felony was a proximate cause of the injury or death. Possession of drugs in a jail or prison = felony
Intoxication defense: no claim if intoxicated, intoxication was a proximate cause, and plaintiff was at least 50% at fault for injuries
Jailers must take care to prevent against self-harm and suicide
Neither assumption of risk nor contributory negligence is a defense
Police must hold property for at least 60 days (RCW 63.32.010)
If owner is known, 60 days starts when police give written notice to owner
If owner is unknown, 60 days starts on date property came into police possession
For property held as evidence, 60 days starts after case is disposed of and property is released by court order
Violation of this statute is evidence of negligence
Jailers or police take person’s property at booking become bailees of property, have duty to take reasonable care with that property (i.e., return it in same condition)
Property isn’t returned or is returned damaged presumption of negligence that jail or police must rebut
Request medical records: incarcerated persons are entitled to own medical records under HIPAA
Request jail records: usually available with just a release of information
Pre-trial can request order for jail to produce records so you can investigate pre-trial detention issues that might lead to release request
Encourage client to document medical needs: use intake and kite system
Document fleeting evidence: take pictures, write down client’s concerns/narrative (especially things they won’t remember, like guards’ names and ID numbers)
If you can, please keep these things yourself to give to potential counsel on the civil case so they don’t get lost
Release from confinement or an order directing the jail to do something = much faster than a civil lawsuit
PRP = second fastest
If the condition is ongoing and your client’s focus is relief, a bond hearing and/or a PRP are the best short-term avenues
Client can always file a civil lawsuit later