Child Shackling Case
Drinker Biddle was asked by the Legal Aid Justice Center (“LAJC”) of Charlottesville, Virginia to participate in a federal district court case in Virginia to overturn a sheriff department policy requiring the use of restraints whenever transporting people with a mental disorder unless the “physical condition would not warrant the use of restraints.” The plaintiff bringing the claim was a nine-year old boy who was handcuffed and shackled by sheriff deputies and chained to the inside of a van while being transported from a Community Services Facility to a local hospital seventy miles away. The child was being transported after suffering a mental health crisis. At the time of the placement of restraints the child was awakened from his sleep and did not appear to be a danger to anyone, including himself. The child, who had a history of emotional disorders, suffered severe trauma as a result of the placement of restraints.
The case raises important issues concerning children’s rights to be free from such restraints without regard to the child’s age, mental condition, and physical condition. There is wide-spread concern by social justice organizations to challenge such conduct with respect to children by law enforcement agencies. The case was to be brought under Section 1983 for violation of the child’s constitutional rights under the Fourth Amendment to be free from unlawful seizure accomplished through excessive force and the child’s rights under Title II of the Americans with Disabilities Act for discriminating and failing to accommodate an individual with a mental disability.
After drafting the complaint and finding an expert to evaluate the nine-year old plaintiff, the plaintiff’s mother and doctor became concerned that the expert’s evaluation itself and the plaintiff’s necessary involvement in the litigation may result in further trauma to the child. Accordingly, authorization to bring the action on behalf of the child was withdrawn.
Drinker Biddle and LAJC continue to believe strongly that the Sherriff’s restraint policy is misguided and continues to cause harm to children with mental health disorders. Accordingly, Drinker Biddle and LAJC are monitoring the situation and looking for opportunities to attack the policy under the appropriate circumstances.
Update on “FOIA” Litigation Filed Against the United States Customs and Border Protection Service (“CBP”) in 2016
Represented by Drinker Biddle, the American Immigration Council (“AIC”) filed suit against the CBP in the United States District Court for the District of Columbia in June 2016, to compel compliance with a Freedom of Information Act (“FOIA”) request AIC had served in late 2015 to obtain records relating to complaints of misconduct lodged against Border Patrol officers since January 2012. In a report published in 2014, entitled “No Action Taken: Lack of CBP Accountability Responding to Complaints of Abuse,” AIC had documented that 809 complaints alleging misconduct had been filed against CBP personnel during the three-year period running from 2009 through 2011, and that an astonishing 97% of the cases in which CBP issued a formal decision resulted in disposition of “No Action Taken” against the officer in question. The FOIA request AIC served in 2015 was designed to obtain records relating to more recently filed complaints to assess whether CBP was making progress in reducing the incidence of complaints against CBP personnel and of processing such charges in a fashion that promotes accountability. Before filing its lawsuit in June 2016, AIC had received no substantive response to the FOIA request. Since the suit was filed, CBP produced a 780-page spreadsheet that identifies certain data points concerning all complaints lodged against CBP personnel since January 2012. CBP is now in the process of producing the underlying documentation relating to a random sampling of more than 100 such complaints, the review of which is intended to allow AIC to determine whether the data provided in the spreadsheet accurately reports the facts as revealed in the underlying documentation, and is otherwise sufficient to meet AIC’s informational needs.
End of year 2017 update on “FOIA” Litigation Filed Against the United States Customs and Border Protection Service (“CBP”) in 2016.
Represented by Drinker Biddle and Jerry Hartman, the American Immigration Council (“AIC”) filed suit against the CBP in the United States District Court for the District of Columbia in June 2016, to compel compliance with a Freedom of Information Act (“FOIA”) request AIC had served in late 2015 to obtain records relating to complaints of misconduct lodged against Border Patrol officers since January 2012. AIC had previously published a report entitled “No Action Taken: Lack of CBP Accountability Responding to Complaints of Abuse,” which documented that 809 complaints alleging misconduct had been filed against CBP personnel between 2009 and 2011, and that an astonishing 97% of the cases CBP took the time to resolve resulted in disposition of “No Action Taken” against the officer in question. The pending FOIA litigation relates to a follow-up FOIA request that AIC served in 2015 to obtain records relating to more recently filed complaints, in order to assess whether CBP was making progress in reducing the incidence of misconduct by CBP personnel and in processing complaints in a fashion that promotes accountability. Before filing its lawsuit in June 2016, AIC had received no substantive response to the FOIA request. After the lawsuit was filed, CBP produced a 780-page spreadsheet that identified all complaints lodged against CBP personnel since January 2012, and subsequently produced the underlying documentation relating to more than 100 distinct types of complaints of alleged misconduct, including physical abuse, sexual assault, failure to provide medical attention, and theft. Although now satisfied with CBP’s production of case-specific records responsive to its FOIA Request, AIC has pressed for production of additional records relating more generally to the procedures and policies CBP follows in processing those complaints. CBP has advised the Court and AIC that it expects to complete production of those documents by January 15, 2018.
Institutionalization and Segregation of Disabled Persons Under North Carolina’s Health Care System
Drinker Biddle and Disability Rights North Carolina have filed a lawsuit to address the failure of the State of North Carolina to provide appropriate behavioral health services to citizens with intellectual and/or developmental disabilities (I/DD). The case was filed on behalf of five plaintiffs with I/DD who are subject to improper segregation or are at risk of segregation. The lawsuit challenges the systemic flaws in the design, funding, implementation, and administration of the North Carolina’s health and human services system. There are thousands of people with I/DD in North Carolina who are institutionalized unnecessarily at great public expense. Moreover, the waiting list for community-based services and other deficits in community-based service system place thousands more at risk for institutionalization.
People with I/DD fare better in home and community-based settings and have a legal right not to be segregated or institutionalized unnecessarily. It is also significantly less expensive to provide support for people with I/DD to live at home than it is to keep them institutionalized. Nevertheless, North Carolina ranks 48th in the overall effect of state policies and practices on promoting independence for people with I/DD, according to a 2016 national report published by United Cerebral Palsy.
The complaint in the case was filed on May 24, 2017, in State court in North Carolina, alleging violations of the North Carolina Constitution and the State statute that bars discrimination and segregation based on disability.
In December of 2017, the North Carolina state Court upheld three out of four elements of the complaint, including all the provisions focused on the legal right of individuals to access home and community based services and avoid being subject to discrimination. Discovery and depositions in the case are ongoing.
Update on settlement in litigation brought by the New York Center for Law and Economic Justice and lawyers from Drinker Biddle on behalf of blind persons to receive Medicaid and food stamp information:
Rafferty v. Doar, is the federal class action that challenged New York State and New York City agencies long-standing, systemic failure to provide public assistance applicants and recipients who are blind or seriously visually impaired with information contained in written public benefit documents that is critical to maintaining their eligibility. A Consent Decree, followed lengthy and complex negotiations with the New York City Human Resources Administration (HRA), the New York State Office of Temporary and Disability Assistance (OTDA), and the New York State Department of Health (DOH). The federal court in the Southern District of New York approved the landmark settlement in October 2015. As part of the Consent Decree, quarterly reporting from the City and State agencies lists the numbers of individuals in the plaintiff class making alternate visual format requests and the types of formats they elect to access public benefit documents.
This reporting demonstrates the significant impact of the Rafferty settlement. Through May of 2017, OTDA has reported that: (1) 2,202 food stamp clients have requested and received eligibility documents converted into one of the four alternate visual formats; and (2) 377 clients have requested and received administrative fair hearing documents converted into one of the alternate visual formats. DOH has reported that 1,985 Medicaid clients have requested and received eligibility documents converted into one of the four alternate visual formats.
In conjunction with the Foundation’s High Impact Project, Children’s Rights and Disability Rights Iowa filed in November 2017 G.R. v. Foxhoven on behalf of all children confined to Iowa’s Boys State Training School who have significant mental illnesses. Jerry Hartman, President of the Barbara McDowell Foundation, and the law firm of Ropes & Gray LLP are co-counsel. The lawsuit asserts that these boys, aged 12 to 19, do not receive the mental health treatment needed to fulfill the facility’s mission of providing “a program which focuses on appropriate developmental skills, treatment, placements and rehabilitation.” Instead of providing this necessary mental health treatment, the facility to control youths incarcerated there relies upon potentially harmful psychotropic medications administered without appropriate oversight or consent, solitary confinement, and full-body mechanical restraints. Plaintiffs claim violations of their right to substantive due process, as guaranteed by the Fourteenth Amendment to the U.S. Constitution; their right to be free from cruel and unusual punishment, as guaranteed by the Eighth Amendment to the U.S. Constitution; and their rights under the Americans with Disabilities Act and the Rehabilitation Act. They are seeking a court order to prevent policies and practices that violate these constitutional and federal statutory rights.