Federal officers deployed to federal buildings in downtown Portland, Oregon have been gassing inmates at the Multnomah County Detention Center (MCDC) according to Federal Public Defender Lisa Hay. According to Hay, the gas has been hitting the female inmates on the 8th floor of the Justice Center especially hard. She describes incidents in the early morning hours of women hitting the panic buttons in their cell because they are having trouble breathing and their eyes burn. At least one of them has started breathing through the crack between the door and the floor. This is the direct result of tear gas being used by federal officers on protesters outside the Mark O. Hatfield United States Courthouse across the street from MCDC.
The 8th Floor of the Justice Center is the top floor of the housing units at MCDC. MCDC occupies the basement where people are booked, floors 1-3 include Multnomah County Sheriff’s Office (MCSO) offices and courtrooms used for arraignments, floors 4-8 are used to house inmates, floors 9-10 are used for things like cooking inmate food and inmate recreation, and the top floors are home to the headquarters of the Portland Police Bureau (PPB). We believe that the intake vents for the ventilation system are all on the roof, but we could be wrong about that. That would explain why most of the complaints from inmates come from women on the 8th floor. Most of the units up there are for women only. It seems like the gas is only a problem during the early morning hours, which is probably why the PPB is not complaining about it too as far as we can tell. For anyone that has not been paying attention, the federal agents at the courthouse, and the other federal building across the street from the opposite side of the Justice Center have been using an outrageous amount of tear gas. They use so much that entire city blocks are engulfed and even people wearing air tight gas masks cannot see through the thick gas.
The ventilation systems in correctional facilities are notoriously bad for protecting inmates from pollutants from other parts of the facilities or nearby. That is because all the cells on every floor are connected by vent shafts. At MCDC inmates can talk to other inmates on the floors above and below them through the vents. At other facilities, like the Federal Correctional Institution in Sheridan, Oregon (FCI Sheridan), inmates that are smoking in their cells stink up entire ranges of cells so much that the guards would have to toss them all if they were to have any chance at finding out who was smoking, but fortunately the correctional officers (COs) are usually too lazy to search one cell let alone an entire range, but that benefit has a huge drawback whenever inmates are maced during cell extractions because it gets into the vents and into the nearby cells where inmate end up coughing uncontrollably for hours. Sometimes the smoke is actually coming from COs smoking near the vent outside. This author was personally the victim of mace used by Federal Bureau of Prisons (BOP) COs against other inmates at the United States Penitentiary in Victorville, California (USP Victorville) at least twice. The first time took place in the 4A housing unit when a couple of my fellow white inmates were putting in work on a dope debt check-in named Dana Devoe because they found out that he had checked in at USP Atwater to avoid paying his debts (check-in is prison speak for requesting protective custody). When the COs came in to break it up they used a lot of mace. That mace got into the ventilation system and I ended up coughing uncontrollably for hours even though my cell was way up on the top tier far away from the scuffle. The second time happened in the Special Housing Unit (SHU) where I was being housed temporarily pending a disciplinary hearing. One day the guy in the cell next to me had a mental health episode and was threatening to kill himself. To disarm him, SHU COs suited up in riot gear, maced him, beat him with a baton, and took him to a dry cell where he was placed in 4 point restraints. The mace came right into my cell via the vent and I had a hard time breathing for awhile.
We hope that Lisa Hay pursues a remedy for this to the fullest extent of the law. We hope that she seeks a court order prohibiting the use of tear gas by federal agents on the ground that it violates the rights of pretrial detainees. Unfortunately and Fortunately, the United States Marshals could easily deny her standing to challenge these conditions simply by moving all federal detainees housed at MCDC to the Columbia County Jail in St. Helens (CCJ) or the Federal Detention Center (FDC) in Sheridan (FDC Sheridan). Most federal pretrial detainees with upcoming court dates in the near future are kept at CCJ pursuant to a contract with the Marshals because they charge a lower rate per inmate than the MCSO does. Inmates housed at CCJ are then woken up early in the morning and transported to the federal courthouse where they are kept in holding cells before and after their court appearances. Inmates with court dates further out are usually transported to FDC Sheridan. The only exception to this would be if an inmate cannot be housed at CCJ for any reason. For instance, this author was banned from CCJ by the Columbia County Sheriff after the Sheriff exercised a clause in his contract that allows him to refuse an inmate. He said I was a security risk to the facility because he falsely accused me of recruiting inmates to engage in acts of disobedience on top of the acts I was personally committing. I was a nightmare inmate, but I did not recruit others. There is also a possibility that CCJ might not have enough room to house all the federal inmates currently at MCDC. Fortunately, the MCSO also operates the Inverness Jail, which is where most federal detainees in MCSO custody are kept, so Lisa Hay could seek an order requiring the MCSO to only house federal detainees at Inverness Jail. There is also a possibility of using the Northern Oregon Regional Correctional Facilitiy (NORCOR) in The Dalles. The Marshals also have a contract with NORCOR but use it as little as possible because NORCOR is a 60-90 minute drive from the courthouse. They have housed inmates in NORCOR in recent years, but usually they are on immigration holds and a lot of them are awaiting their date in immigration court in Tacoma, but it is not unheard of for inmates with severe disciplinary histories in Multnomah and Columbia counties to be sent there. This author tried to get sent there in 2018 after being taken back to MCDC on the grounds that the alleged victims in my case were all COs at MCDC directly charged with my custody and we felt that was a due process violation (https://copblaster.com/blast/146/federal-inmates-inappropriately-housed-in-the-custody-of-witnesses), but even that was not enough to get me moved there. Conclusion, it is entirely possible for the U.S. Marshals to keep federal detainees from getting gassed in Multnomah County.
Unfortunately, even if the Marshals take action to keep federal detainees from getting gassed on the 8th floor of MCDC, most of the inmates on that floor are in county custody because they have cases pending in state court or are serving sentences of less than one year for misdemeanor convictions in that court. We believe that Oregon Attorney General Ellen Rosenblum should sue the federal government on behalf of all MCDC inmates and seek an injunction prohibiting the feds from using tear gas close to MCDC. The argument would be that continuing to do so creates a situation that constitutes Cruel and Unusual Punishment under the 8th Amendment for all sentenced inmates serving sentences and constitutes punishment without due process of law under the 14th Amendment for all pretrial detainees. The reason for the split between the amendments is that the 8th Amendment only applies to inmates serving a formal sentence, so excessive force cases brought on behalf of pretrial detainees have to be brought under the due process clause of the 14th Amendment. If Rosenblum does not sue or is denied standing then we would like to see the ACLU pursue this issue. If the ACLU or a similar group of civil litigators won’t take the case then we would like to see their conditions of confinement challenged by the criminal defense attorneys representing the inmates. The quickest remedy we could see them seek would be to stop housing inmates on floors vulnerable to tear gas. If there is no more room at MCDC or Inverness Jail, then release some people for good behavior or on their own recognizance pending trial. They also may want to consider opening the Wapato Jail which is fully constructed and has never been used.
Due to all the finger pointing sure to result when this unacceptable situation is challenged, the likelihood of a swift and effective solution is small. The U.S. Marshals will say that they are not responsible for how the MCSO houses inmates and the MCSO will say that they are not responsible for the feds using tear gas. Fortunately, both the feds and the MCSO are both on notice of the problem and there is now an argument to be made that failing to do what they can to help the inmates is deliberate indifference. Deliberate indifference is defined under a subjective recklessness standard, so if a municipality or government employee knows of a substantial risk to someone’s health and fails to act or acts with no regard for the person’s well being they are subjectively reckless and thus deliberately indifferent. Deliberate indifference was defined by the Supreme Court in Farmer v. Brennan, 511 U.S. 825 (1994) (https://supreme.justia.com/cases/federal/us/511/825/):
“(c) Subjective recklessness, as used in the criminal law, is the appropriate test for ‘deliberate indifference.’ Permitting a finding of recklessness only when a person has disregarded a risk of harm of which he was aware is a familiar and workable standard that is consistent with the Cruel and Unusual Punishments Clause as interpreted in this Court’s cases. The Eighth Amendment outlaws cruel and unusual ‘punishments,’ not ‘conditions,’ and the failure to alleviate a significant risk that an official should have perceived but did not, while no cause for commendation, cannot be condemned as the infliction of punishment under the Court’s cases. Petitioner’s invitation to adopt a purely objective test for determining liability-whether the risk is known or should have been known-is rejected. This Court’s cases ‘mandate inquiry into a prison official’s state of mind,’ id., at 299, and it is no accident that the Court has repeatedly said that the Eighth Amendment has a ‘subjective component.’ Pp.837-840.” – David Souter, Associate Justice of the Supreme Court of the United States
So far all the MCSO claims to be doing is closing the air intake vents in the evening hours and recycling the air internally. They try to make it sound like someone just forgot to do that a couple of nights. Hopefully they can fix it but if it happens again they are responsible for the consequences. The claim by Multnomah County Corrections Health that nobody has been treated for exposure says more about the incompetence and indifference of the medical staff than it does for the effects of the gas. If people are so uncomfortable that the COs are opening the food ports to help them breathe that is a problem. It is not a defense that the gas has not put any of them in the hospital. The whole point of “less lethal” munitions like tear gas is to cause temporary yet uncomfortable and painful symptoms, so they can’t simply say that no harm is done because the gas did not require medical treatment.
Published at Fri, 24 Jul 2020 19:55:18 +0000