Prisoners at the mercy of abusive guards

Kim Millbrook, a federal prisoner serving 31 years on a variety of charges, says on March 5, 2010, three corrections officers took him to a basement at the US Penitentiary, Lewisburg in Pa., where one forced him down to perform oral sex on a second officer while the third officer stood watch. He wants to sue. Millbrook had his day in the US Supreme Court last week. The inmate's veracity is not at issue -- many question whether he is telling the truth -- but whether federal prisoners have access to the courts when they make allegations of abuse. The case has implications for all federal law enforcement that might be accused fairly or unfairly of prisoner abuse, not just corrections officers -- U.S. Marshals, the FBI, the US Drug Enforcement Administration and the Bureau of Alcohol, Tobacco, Firearms and Explosives, among others. In a brief filed at the high court, the Lambda Legal Defense and Education Fund, a group that promotes civil rights for gays and lesbians, and a coalition said, "Access to the courts is critical to deter sexual assault of inmates by prison officers, an acknowledged national problem arising from the nearly absolute power that prison officers wield." A brief filed by the non-profit Lewisburg Prison Project, a group that provides legal and other assistance to prisoners in the Middle District of Pennsylvania, said prisoners "confined in the federal government's most restrictive penal institutions are uniquely vulnerable to abuse," and "prisoners are persons with incontestable rights to justice and compassion." Specifically, the question before the justices is whether two provisions of the Federal Tort Claims Act "waive the sovereign immunity of the United States [against suit] for the intentional torts [legal wrongs] of prison guards [and other law enforcement officers] when they are acting within the scope of their employment." After Millbrook filed suit, the lower courts ruled against him. The US Court of Appeals for the Third Circuit, which includes Pennsylvania, said a provision of the act allows suits against the federal government only when a law enforcement officer is "executing a search, seizing evidence, or making an arrest." Millbrook then beat tremendous odds, filing his handwritten pauper petition at the U.S. Supreme Court. The justices each term reject thousands of such pauper petitions, many of them filed by prisoners, but they accepted Millbrook's for argument. The Obama administration first opposed Supreme Court review of Millbrook's case, contending the act's waivers should be read narrowly. The administration also doubted his allegations. "After [Millbrook] reported to prison authorities that he had been assaulted, officials conducted an internal investigation which included a medical assessment. The investigation found petitioner's claims to be unsubstantiated," the administration's brief in opposition said. But during the course of the case, the administration changed its mind and last November filed a brief advocating the reversal of the appellate ruling. Millbrook was convicted in 2007 on one count of possession a firearm after being convicted of a felony, one count of possession with intent to distribute cocaine base, three counts of witness tampering and one count of witness intimidation. Though supporting review of the appellate ruling against him, the brief concedes Millbrook "filed multiple administrative complaints ... falsely alleging misconduct by correctional officers." Lewisburg is a special unit for "inmates difficult to manage." The New York Times reported in October Millbrook, "an inmate at a federal prison in Pennsylvania, has 31 years of hard time on his hands. He has been using it to sue people." NPR said Millbrook "is known in the trade as a 'frequent filer' -- he files lots of cases against the prisons where he has been forced to reside. And he has not yet won a single one of them." But without reaching a conclusion on Millbrook's truthfulness, the Obama administration in its latest brief said the appellate court's "reading of the law enforcement [provision] cannot be reconciled with the statutory text and structure of the [provision's] legislative history." The Third Circuit's reading of the immunity waiver in the Federal Tort Claims Act conflicts with the interpretation of some other federal courts. Because the administration now supported Millbrook, the U.S. Supreme Court appointed a lawyer to defend the Third Circuit ruling. A brief filed by the present counsel of record for the Third Circuit argued that the act's waiver only covers officers acting in their "investigative or law enforcement" capacity. During argument last week, the justices spent a lot of time asking questions about what is a law enforcement officer, and what constitutes law enforcement activity, Lawyers.com reported. Justice Anthony Kennedy expressed concern a high court ruling in favor of Millbank would "vastly expand the number of cases in which the government is the defendant." An article posted Feb. 15 on SCOTUSBLOG.com, written by Washington lawyer Kevin Russell, a partner at Goldstein & Russell, explains why the issue is so complicated. Russell said if Millbrook actually was sexually assaulted by a federal prison guard, his constitutional rights were violated. But whether the assault took place is not at issue before the Supreme Court. "The question in the case is whether the federal government can be held liable for that violation by its employees," Russell said. "Ordinarily, the government is immune from suit for even the most egregious conduct of its agents. But Congress waived the government's immunity to a significant degree in the Federal Tort Claims Act, which generally waives immunity for any negligent or wrongful act committed by a federal employee acting within the scope of his employment. "So that would seem to allow Millbrook's suit for an assault by a guard," he wrote. "But there is an exception -- there is no waiver for certain intentional torts, including assault and battery. So Millbrook would seem to be out of luck, given that sexual assault is a kind of assault." But the twists and turns don't end there, Russell explained. "There is an exception to the exception -- the so-called 'law enforcement proviso' allows suit for 'any claim' of 'assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution' arising out of the acts of federal 'investigative or law enforcement officers.'" The Supreme Court should rule in the case, untying the legal knots, sometime over the next few months.