Federal Court Condemns Use of Force and Restraints on Children in Juvenile Detention Facilities But Does Not Issue Injunction
THURSDAY, JANUARY 26, 2012

In a decision issued on January 19, Federal Judge Paul A. Crotty of the Southern District of New York condemned the use of force and restraints on children in State Office of Children and Family Services facilities, but  he did not issue a preliminary injunction "The problem at Office of Children and Family Services facilities is not the policy on use of force and physical restraints, but the practices utilized by the staff that are not consistent with the policy," Judge Crotty wrote in G.B. v. Carrion, 09 Civ. 10582. The lawsuit was filed against the State OCFS by The Legal Aid Society and the law firm of Orrick, Herrington & Sutcliffe LLP.

"We are pleased that the court recognized the harm to our young clients resulting from the admitted excessive use of force in these detention facilities, and while we certainly would rather have obtained a court order we are pleased that the court has told the commissioner that the agency has to provide the resources and staff training that she said it would to stop this harm to children," Tamara A. Steckler, the Attorney-in-Charge of the Juvenile Rights Practice, told the New York Law Journal.

"The continuing excessive use of force in these facilities is exactly why we are supporting the governor's proposed legislation to return our clients to new facilities in New York City where they can be closer to their communities and under the watchful eyes of their families and our lawyers," Ms. Steckler added (NYLJ, Jan. 25).




The New York Law Journal
Judge Rejects Injunction Over OCFS Policy Violations on Use of Force
By Mark Hamblett
01-26-2012

While there is no justification for continuing violations of the state Office of Children and Family Services policy on the use of force and restraints on youths in juvenile detention facilities, a federal judge has declined to issue a preliminary injunction against the agency.Southern District Judge Paul A. Crotty (See Profile) said there was no point in issuing such an injunction because the issue was compliance, not the policy itself.

"The problem at Office of Children and Family Services facilities is not the policy on use of force and physical restraints, but the practices utilized by the staff that are not consistent with the policy," Judge Crotty wrote in G.B. v. Carrion, 09 Civ. 10582.

Judge Crotty also found that OCFS Commissioner Gladys Carrion "is aware of the inappropriate uses of force, has agreed to remediate them, and is taking reasonable steps to bring her agency into compliance with constitutional requirements."

The suit was brought by the Legal Aid Society on behalf of all minors confined in OCFS facilities following Family Court juvenile delinquency proceedings.

It was filed following an investigation by the U.S. Department of Justice's Civil Rights Division into whether youths at four upstate facilities were subjected to unreasonable physical restraints and, later, whether they were receiving proper mental health care.

In an August 2009 findings letter, the department said that OCFS staff "resort quickly to a high degree of force that is disproportionate to the level of the youth's infraction" and "the technique employed to restrain a youth results in an excessive number of injuries," specifically the face-down "prone restraint" technique.

While the OCFS policy stated physical restraints were to be used only in "exceptional circumstances when all other pro-active, non-physical behavior management techniques have been tried and failed," the Justice Department said the staff did not follow the policy and instead chose "full prone restraint with handcuffs" regardless of the situation.

OCFS entered into a settlement agreement in the Northern District with the Justice Department in July 2010 that sets a June 2012 deadline for the state and OCFS to modify its policies, procedures and practices for the use of physical restraints, limiting them to situations where emergency physical intervention is needed to protect a person's safety, a youth is attempting escape or a "youth's behavior poses a substantial threat to the safety and order of the facility" (NYLJ, July 16, 2010).

What emerged was a crisis prevention and management policy not just for the four facilities in question but for all facilities statewide. That policy phases out the use of prone restraints and requires a "continuum of physical interventions," the most severe of which is a "supine restraint" where a youth is placed on his back (instead of face down) and staff are allowed to use a "transitional hold" in order to apply handcuffs.

In seeking a preliminary injunction, the plaintiffs said that staff continued to use excessive force to punish youths in the facilities.

Judge Crotty held a two-day evidentiary hearing on Dec. 15 and Dec. 16, 2011, taking testimony from five youths, all of whom suffered injuries (one a broken arm) and a number of officials, including Ms. Carrion, who testified that OCFS was moving away from prone restraints and toward supine restraints where necessary, but that a ban on prone restraints had to be gradual because it involved training staff in alternative techniques.

Improvements NotedJudge Crotty rejected the argument that Ms. Carrion is liable in her supervisory role because she did not dispute the injuries resulted from unlawful restraints, agreed the system needed reform and, in fact, she set out on a course of reform following her appointment in 2007.Ms. Carrion secured additional funding, had cameras installed to document restraints, welcomed the Department of Justice investigation, entered into the settlement agreement, and improved the policy "by eliminating physical restraints to maintain discipline and sharply restricted the authorization for prone restraints," the judge said.

"There is nothing in the record to suggest that Commissioner Carrion has been 'indifferent' to the serious problems facing her agency and the rights of youth entrusted to her care," Judge Crotty said.

"The parties, and this court, agree that these violations of OCFS policy on physical restraints cannot continue," Judge Crotty said. "These abuses must be stopped, but the preliminary injunction that plaintiffs seek fails to address the constitutional injuries the plaintiffs have suffered."

An injunction, he said, would only mirror "the narrow restrictions already in place," and "will do little, if anything, to remedy plaintiffs' harm."

Despite allegations of excessive force, he said, "the Constitution does not prohibit all prone restraints" and because some facilities are already subject to the Department of Justice settlement "an injunction from this court would subject OCFS to inconsistent directives."

"Lastly, plaintiffs' request to receive immediate notice (through their counsel) whenever OCFS staff administer physical restraints is unduly burdensome and would do little to prevent further harm to plaintiffs," he said.

Judge Crotty said the Legislature appropriated $62 million for fiscal years 2011 and 2012 for the commissioner to make the necessary reforms.

"Not all appropriated funds have been expended," he said. "If money is not made available for the necessary hiring and training at OCFS, which must take place this year and next, then the court will reconsider its position."

He required the defendants to provide within two weeks a schedule for hiring and training at the facilities not covered by the Justice Department settlement and a statement that the agency has the necessary resources available for hiring and training.

Assistant Attorneys General Vincent Leong and Garvin Smith represented the state.The plaintiffs were represented by the Legal Aid Society, Steven Banks, attorney in chief, and Christine L. Bella, of counsel; and J. Peter Coll Jr., Alison K. Roffi, Rene Kathawala and Scott Roehm of Orrick, Herrington & Sutcliffe."We are pleased that the court recognized the harm to our young clients resulting from the admitted excessive use of force in these detention facilities, and while we certainly would rather have obtained a court order we are pleased that the court has told the commissioner that the agency has to provide the resources and staff training that she said it would to stop this harm to children," Tamara A. Steckler, the attorney-in-charge of Legal Aid's juvenile rights practice, said in statement.

"The continuing excessive use of force in these facilities is exactly why we are supporting the governor's proposed legislation to return our clients to new facilities in New York City where they can be closer to their communities and under the watchful eyes of their families and our lawyers," Ms. Steckler added (NYLJ, Jan. 25).