Amicus Curiae Brief — Ziglar v. Turkmen, 137 S. Ct. 292 (2016) (No. 15-1358)

Supreme Court of the Anited

JAMES W. ZIGLAR,

OMS Cte

Petitioner,

We

AHMER IQBAL ABBASI, et ai.,

Respondents.

JOHN D. ASHCROFT, former U.S. Attorney General, and

ROBERT MUELLER, former Director of the FBI,

Petitioners,

Vv.

AHMER IQBAL ABBASI, et ai.,

Respondents.

DENNIS HASTY and JAMES SHERMAN,

Petitioners,

Vv.

AHMER IQBAL ABBAS, et ai.,

Respondents.

On Writs of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF OF AMICI CURIAE FORMER

CORRECTIONAL OFFICIALS

IN SUPPORT OF RESPONDENTS

JOSHUA COLANGELO- BRYAN ANDREW S. POLLIS

DANIEL GOLDBERGER Counsel of Record

JEREMY SCHLOSSER AVIDAN Y. COVER

DORSEY & WHITNEY LLP MILTON A. KRAMER LAW

51 West 52nd Street CLINIC CENTER

New York, NY 10019-6119 CASE WESTERN RESERVE

(212) 415-9200 UNIVERSITY SCHOOL

colangelo.joshua@dorsey.com OF LAW

11075 East Boulevard

Cleveland, OH 44106

(216) 368-2766

andrew. pollis@case.edu

_—— EE

TABLE OF CONTENTS

TABLE OF AUTHORITIES. ................0:.:s0ceeeeees r

INTEREST OF AMICI CURIAE ..........

SUMMARY OF ARGUMENT ........................0008

FE seri igincitptictsinccratnibsinmteetiiaiaiieipnnmensie

THE ABUSES DOCUMENTED IN THE

OIG REPORT AND COMPLAINT COULD

ONLY HAVE OCCURRED WITH THE

MDC PETITIONERS’ COMPLICITY ......

I.

A.

Wardens Are Uniquely Positioned

Not Only to Direct, but Also to Pre-

vent, Unlawful Conditions of Con-

finement and Mistreatment of

a TERR ea ane aie fret ond ss

The Absence of Effective Correctional

Leadership Leads to Abuses ...............

. Wardens’ Actions That Encourage

Discrimination Are Especially Likely

to Produce Abuses by Frontline Cor-

Es MIE icccccsccccucnccmsustennundben

FEDERAL PRISONS OPERATE

ACCORDING TO CLEAR LINES OF

AUTHORITY AND REQUIRE NON-

DISCRIMINATORY DETENTION PRAC-

aid apdinniecniivcsiaehaehadesadananimgtae

(1)

9

10

il

TABLE OF CONTENTS—Continued

Page

A. Federal Regulations Require War-

dens to Play a Critical Role in Placing

Detainees in Restrictive Confinement

and Strictly Define the Circum-

stances Under Which Restrictive

Confinement Is Permissible................ 14

1. BOP Regulations Require Wardens’

Involvement in the Placement of

Detainees in Restrictive Housing... 14

2. BOP Regulations and Policies

Prohibit Segregation of Detainees

on Non-Individualized Grounds

and Discriminatory Bases ............. 16

B. The Complaint and the OIG Report

Demonstrate that the MDC Petition-

ers Did Not Follow BOP Regulations

i rectniniiiinanibocnianstaisbiniceccctese: 17

1. The MDC Petitioners Subjected

Respondents to Restrictive Con-

finement Based on Discriminatory

and Non-Individualized Deter-

minations in Violation of BOP

Regulations and Policies............... 18

Ill. BOP FACILITIES OPERATE ACCORD-

ING TO REGULATIONS THAT PRO-

HIBIT ABUSIVE TREATMENT ............. 21

A. Federal Regulations and BOP Policies

Do Not Permit Abusive Treatment

Under Any Circumstances ......... es ES 21

1. Use of Restraints and Force .......... 21

ill

TABLE OF CONTENTS—Continued

2. Prohibitions Against Verbal Abuse...

3. Strip Searches of Inmates..............

4. Mandatory Review of Inmates’

I rrcccsenigiescicunamnndeschnanseses

B. The Abusive Treatment at Issue

Could Only Have Occurred with the

MDC Petitioners’ Knowledge and

Failure to Take Measures to Prevent

So a cauudamieneuiees

. THE MDC PETITIONERS’ ARGUMENT

THAT THEY WERE PERMITTED TO

VIOLATE APPLICABLE REGULA-

TIONS AND POLICIES BASED ON FBI

TERRORISM DESIGNATIONS AND

BOP ORDERS IS BASELESS...................

A. Wardens Are Not Required to Follow

FBI Designations Because—as BOP

Employees—They Are Not Within the

FBI’s Chain of Command; Nor Are

They Required to Follow BOP Instruc-

tions on Restrictive Confinement That

Violate BOP Regulations and Policies

B. The Harms Alleged by Respondents

Were the Result of Direct Involve-

ment by the MDC Petitioners, Which

Exceeded Any “Orders” From the FBI

I o.iGrcendacadcisnensctchateabbensoces

23

28

29

30

iv

TABLE OF CONTENTS—Continued

Page

C. Wardens Are Not Required to Follow

Orders Requiring the Violation of

BOP Regulations and Policies That

Safeguard Detainees’ Safety............... 32

I i cond dcicsichenlin sprcecnealiindpocmeveneomitaneuneds 35

Vv

TABLE OF AUTHORITIES

CASES Page(s)

Bell v. Wolfish,

441 U.S. 620 (1978)...............2..0.000. 14, 20, 31, 34

Forsyth v. Kleindienst,

599 F.2d 1203 (3d Cir. 1979), cert.

a edhe ba vas nancekaal 29, 33

Hope v. Pelzer,

596 U.S. 730 (2002)................... cect aweudepau 34

Johnson v. California,

BE Os Se ccs asccvcicnctcscccesscccessessene: 20

Lee v. Washington,

HID ic cocnssncsssesccncnnteevsensontboe 20, 34

Mitchell v. Forsyth,

Se Se BE Ricsccccsnecisanntivascopescsnssesen 29

Raysor v. Port Auth. of N.Y. & N.d.,

768 F.2d 34 (2d Cir. 1985).............-.-...... 33

Rose v. Mitchell,

Ee eR scisesatnnnrcvesieccossesiacsteness 20

Thaddeus-X v. Blatter,

175 F.3d 378 (6th Cir. 1999)..................... 33

Turkmen v. Hasty,

789 F.3d 218 (2d Cir. 2015) ................0.... 32

Villanueva v. George,

659 F.2d 851 (8th Cir. 1981)........... Ba Piece se 33

Wong Wing v. United States,

gst Bly pe po) 14

CONSTITUTION

OE Ce es, NO . scdainabenpeedasesuse 14

vi

TABLE OF AUTHORITIES—Continued

STATUTES AND REGULATIONS Page(s)

18 U.S.C. § 4041 (2000) ......cccccesesccccecsesceeeeees 29

18 U.S.C. § 4042(a)(1) (2000) o...eeecccccccccescsee 29

18 U.S.C. § 4042(a)(2) (2000) .........ccccceccee 29-30

18 U.S.C. § 4042(a)(3) (2000) .......0.c.cccccceeeee 29-30

r= SRDS SESS SAO aa een eter 33

oo | |) a

28 C.F.R. § 0.95(a) (2001)... cocccececeeeeeee. 29

28 C.F.R. § 0.95(d) (2001) ....ccccccccccccccceeeeseeee. 30

28 C.F.R. § 541.13 Table 6 (2001)................ 16

28 C.F.R. § 541.16(d) (2001)....0.0.0. oc occececee. 16

28 C.F.R. § 541.17(a) (2001)... ee. 16

28 C.F.R. § 541.20(a) (2001)... cecccccceeee. 15, 16

28 C.F.R. § 541.20(b) (2001)... ee ceccseeceee. 15, 16

28 C.F.R. § 541.20(c) (2001) .o....ccccccceceeeeeee: 16

28 C.F.R. § 541.22 (2001) oo... ec cccccccceececeeeeee: 14

28 C.F.R. § 541.22(a) (2001)................... 14, 15, 16

28 C.F.R. § 541.22(b) (2001)......0.0..0............. 15, 16

28 C.F.R. § 541.22(c) (2001) ........0.ce cece 15, 16

28 C.F.R. § 542.10 (2001).............. een 23

28 C.F.R. § 542.11(a) (2001) ........ccccceccceeeeee. 23

28 C.F.R. § 542.13 (2001) oooceccccccccccecccceseeeeses 23

28 C.F.R. § 551.90 (2001) oo... .cccccccecccceecsseeee 17, 20

28 C.F.R. § 552.11(b) (2001)... 22

vii

TABLE OF AUTHORITIES—Continued

Page(s)

28 C.F.R. § 552.11(b)(1) (2001) .................... 22

28 C.F.R. § 552.11(b)(2) (2001) .................... 23

ee ee als Oo ID eine cniticesccincsesecesnenis 21, 22

28 C.F.R. § 552.22(g) (2001).............0.....002... 21

28 C.F.R. § 552.22(j) (2001)................0...000... 22

Be ee ike OF ED CD se ss cone cccncncscetscceees 22

OTHER AUTHORITIES

Albert Bandura et al., Disinhibition of

Aggression Through Diffusion of

Responsibility and Dehumanization of

Victims, 9 J. Res. in Personality, 253—69

(1975), available at https://web.stanford.

edu/dept/psychology/bandura/pajares/Ba

ndural975.pdf [{https://perm a.cc/LV47-

5 ERLE ae RAE AE we Se et Di 22 aD

BOP Program Statement P.S. 3420.09(9)(c)(4)

a RE Ey ec Sra eT, PEE

Clemens Bartollas & Stuart J. Miller,

Correctional Administration (1978).........

J. Michael Quinlan, What Should the

Public Expect from Prisons—Overcoming

the Myths, Federal Prisons Journal 1

(Summer 1990)... AE ED SESE aD

John J. Dilulio, Jr. Pee Prisons: A

Comparative Study of Correctional

Management (1990 ed.) ......................2..04.

7,8

vu

TABLE OF AUTHORITIES-——Continued

Page(s)

John Dilulio, Jr., No Escape: The Future of

American Corrections (1991)....................

Kevin N. Wright, Effective Prison

Leadership (1994) .....................06...008 hice

Kuang Keng Kuek Ser, Data: Hate Crimes

Against Muslims Increased After 9/11,

PRI (September 12, 2016, 2:45 PM).........

Melissa Dittmann, What Makes Good

People Do Bad Things?, Am. Psych.

Assoc. (Oct. 2004), available at http://www.

apa.org/monitor/oct04/goodbad.aspx........

Nancy M. Campbell, Nat’l Inst. of Correc-

tions, Correctional Leadership Compe-

tencies for the 21st Century: Manager

10

and Supervisor Levels (2006).................. passim

Office of the Inspector General, U.S. Dep’t

of Justice, The September 11 Detainees:

A Review of the Treatment of Aliens Held

on Immigration Charges in Connection

with the Investigation of the September

Il Attacks (Apr. 2003), available at

https:/oig.justice.gov/special/0306/full.p

__ PARLIN TO ORS SEEMS IY DSS eso SRE RST passim

Office of the Inspector General, U.S. Dep’t

of Justice, Supplemental Report on

September 11 Detainees’ Allegations of

Abuse at the Metropolitan Detention

Center in Brooklyn, New York (Dec.

2003), available at https://oig justice.gov/

special/0312/final pal ................ccccsescossees passim

ix

TABLE OF AUTHORITIES—Continued

Page(s)

Philip Zimbardo et al., A Pirandellian

Prison: The Mind is a Formidable Jailer,

N.Y. Times Mag., Apr. 8, 1973 .............---. 9, 10

Philip Zimbardo et al., Interpersonal

Dynamics in a Simulated Prison, 1 Int'l.

J. Criminology & Penology 69 (1973)....... 9, 10

Restatement (Second) of Agency (1958) ...... 33

Seymour M. Hersh, Torture at Abu Ghraib,

New Yorker (May 10, 2004)...................... 10

Stan Stojkovic & Mary Ann Farkas,

Correctional Leadership: A Cultural

Perspective (2003)................::cccsee 7, 8, 10, 26

Virginia Hutchinson et al., Nat'l Inst. of

Corrections, Inmate Behavior Manage-

ment: The Key to a Safe and Secure Jail

GI en ic sntngsnchncinsnbeandebsniininisiesnonedsteosiaoumes 16

William Peters, A Class Divided: Then and

Now (expanded ed. 1987)............-----::++++++: 11,12

INTERESTS OF AMICI CURIAE

Amici curiae are former correctional! directors and

administrators with extensive on-the-ground experience

supervising prisons and jails throughout the United

States.' Amici respectfully submit this brief in support

of Respondents Ahmer Iqbal Abbasi, et al.

Eugene Atherton is a correctional advisor for the

U.S. State Department and the National Institute of

Justice. Previously, Mr. Atherton served as Deputy

Director, Colorado Department of Corrections (2002—

04); Warden, Colorado State Penitentiary, Canon City,

Colorado (1999-2002); and Warden, Buena Vista

Correctional Facility, Buena Vista, Colorado (1997-

99). He is the author of The Evolution and Develop-

ment of Correctional Technology, Guidelines for the

Development of a Security Program, and the Colorado

Department of Corrections’ policy on the use of force

continuum. He has served as an expert witness on a

variety of correctional issues, including conditions of

confinement, use of force, unlawful discrimination,

and management of high-risk offenders.

Brian Fischer spent forty-four years in corrections,

serving as Commissioner of the New York State

Department of Corrections from 2007 until 2013. Prior

to retiring, he consolidated the Division of State Parole

and the Department of Corrections into the Depart-

ment of Corrections and Community Supervision,

downsizing the agency by closing prison farms,

annexes, camps, and several medium-security prisons.

' No counsel for any party authored this brief in whole or in

part, and no such counsel or any party made a monetary

contribution intended to fund the preparation or submission of

this brief. Communications reflecting consent from the parties

have been filed with the Clerk’s office along with this brief.

2

Martin F. Horn served as the Secretary of

Corrections of Pennsylvania from 1995 until 2000. He

was also the Commissioner of the New York City

Department of Correction and of the New York City

Department of Probation for seven years. He is

currently the Distinguished Lecturer in Corrections at

the John Jay College of Criminal Justice and the

Executive Director of the New York State Sentencing

Commission.

Justin Jones served as Director of the Oklahoma

Department of Corrections from 2005 to 2013. He has

more than thirty-five years of experience in the field of

corrections.

Steve J. Martin is the former General

Counsel/Chief of Staff of the Texas prison system. He

has worked as a correctional officer, including on

death row, as a probation and parole officer, and

as a prosecutor. He has testified before the

U.S. Congress and many other oversight bodies,

and has extensive experience in the development

of correctional standards, policies, procedures, and

guidelines across the United States. As a correctional

expert for the U.S. Department of Justice (the “DOJ”)

and as a consultant in over forty states, he has visited

or inspected more than 700 confinement facilities.

Ronald McAndrew is a prison and jail consultant

who has been retained in more than 300 cases through-

out the United States and abroad. Previously, he

served as Director of Orange County Jail, Orlando,

Florida between 2001 and 2002. He also served as

Warden, Central Florida Reception Center, Orlando,

Florida (1998-2001); Warden, Florida State Prison,

Raiford, Florida (1996—98); Warden, Gulf Correctional

Institution, Wewahitchka, Florida (1992—96); Deputy

3

Warden, Central Florida Reception Center, Orlando,

Florida (1988—92); and Correctional Officer, Florida

State Prison System (1978-88).

Phil Stanley served as Commissioner of the New

Hampshire Department of Corrections from 2000 until

2003. He has thirty-five years of experience in the field

of corrections.

Richard Subia is a Public Safety Consultant, sits

on the Heald College Criminal Justice Advisory Board,

and is an expert in prison gangs and institutional-risk

assessment. From 2006 to 2007, he served as Warden

zor California’s Mule Creek State Prison. From 2007

to 2012, he served as the Associate Director, Deputy

Director, and then Director of the California Depart-

ment of Corrections and Rehabilitation (“CDCR”). He

has over twenty-six years of experience with CDCR,

during which time he also held the positions of Cor-

rectional Officer, Correctional Sergeant, Correctional

Lieutenant, Correctional Administrator, and statewide

Director of the Division of Adult Institutions.

Eldon Vail served as Secretary of the Washington

State Department of Corrections from 2007 to 2011.

He has over thirty years’ experience in the field of

corrections. He previously was Warden at three adult

institutions, including facilities that housed maxi-

mum, medium, and minimum-security inmates. He

has also served as an expert witness and correctional

consultant on security issues and conditions of

confinement in prisons and jails across the country.

Jeanne Woodford is the former Director and

Acting Secretary of the California Department of

Corrections and Rehabilitation. She began her career

as a correctional officer at California’s San Quentin

State Prison, rising to the rank of Warden there.

4

SUMMARY OF ARGUMENT

Amici are deeply concerned by the claims advanced

by the Petitioners Dennis Hasty and James Sherman,

former Metropolitan Detention Center (the “MDC”)

wardens (the “MDC Petitioners”). In particular, the

MDC Petitioners claim that they are immunized from

liability for subjecting detainees to abusive conditions

of confinement on the basis of race, religion, or

national origin because they acted on orders from law-

enforcement officials. That position contradicts the

relevant regulations and our experience and practices

as correctional officials. As one former federal Bureau

of Prisons (the “BOP”) director wrote, “Society should

expect that prisons will protect public safety” and

“that inmates will be confined safely and humanely.”

J. Michael Quinlan, What Should the Public Expect

from Prisons—Overcoming the Myths, Federal Prisons

Journal 1 (Summer 1990), at 6. It is this expectation

that we urge the Court to vindicate.

Amici write to highlight three important reasons

the MDC Petitioners should be held accountable for

the alleged mistreatment of Respondent detainees.

First, wardens have sweeping and binding authority

over correctional institutions. It is therefore more

than plausible that they approved, or were aware

of and failed to discontinue, official and unofficial

policies and practices involving highly restrictive

confinement, impermissible strip searches, and the

physical and verbal mistreatment of detainees by

correctional officers.

Second, BOP regulations and policies proscribe seg-

regating and restrictively confining detainees on non-

individualized grounds and on the basis of race,

religion, or national origin. These regulations and

policies also prohibit any physical or verbal abuse of

5

detainees. Respondents more than plausibly allege

that the MDC Petitioners either directly violated these

proscriptions or knew of the alleged violations and

failed to prevent them. Moreover, reports from the

DOJ Office of the Inspector General (the “OIG”) are

consistent with Respondents’ allegations regarding

treatment of detainees that violated BOP regulations

and policies.

Finally, the MDC Petitioners’ argument that they

are immune from liability because they followed

“orders” from the FBI and the BOP fails for several

reasons. First, the argument that the FBI’s terrorism

designations constituted orders mischaracterizes as

hierarchical what is, in fact, a co-equal relationship

between DOJ agency components—the FBI and the

BOP. Second, compliance with the BOP’s “highly

restrictive conditions” policy for detainees appre-

hended in the FBI’s post-9/11 investigation did not

actually require that the MDC Petitioners disregard

well-established and binding BOP policies requiring

individual assessments for detainees placed in restric-

tive confinement and prohibiting such confinement

based on racial, religious, or ethnic grounds. Third, the

MDC Petitioners ignore that neither the FBI nor the

BOP even arguably ordered much of the mistreatment

alleged in the Fourth Amended Complaint. Finally,

wardens are not obligated to follow orders that violate

established prison policies and that serve no legiti-

mate penological objective. Indeed, affording inmates

and detainees their established procedural and consti-

tutional protections does not undermine the criminal-

justice system’s chain of command; to the contrary, it

ensures both the proper functioning of prisons and

inmate and detainee safety.

6

ARGUMENT

I. THE ABUSES DOCUMENTED IN THE OIG

REPORT AND COMPLAINT COULD ONLY

HAVE OCCURRED WITH THE MDC

PETITIONERS’ COMPLICITY

The OIG’s reports on conditions at the MDC* and

Respondents’ Fourth Amended Complaint recount a

series of abuses and conditions of confinement that

could not have occurred but for the MDC Petitioners’

direct involvement in, or their awareness of and

failure to prevent, the unlawful conduct. Correctional

literature, best practices, and psychological studies

draw a direct line between institutional supervisors’

actions or inaction and inmate or detainee abuse, par-

ticularly when discrimination animates the abuse.

A. Wardens Are Uniquely Positioned Not

Only to Direct, but Also to Prevent,

Unlawful Conditions of Confinement

and Mistreatment of Detainees

Wardens and correctional supervisors play vital

roles within a correctional facility. Decades of correc-

tional literature make patently clear that a warden

* Office of the Inspector General, U.S. Dep't of Justice, The

September 11 Detainees: A Review of the Treatment of Aliens Held

on Immigration Charges in Connection with the Investigation of

the September 11 Attacks (Apr. 2003) (the “OIG Report”); Office

of the Inspector General, U.S. Dep't of Justice, Supplemental

Report on September 11 Detainees’ Allegations of Abuse at the

Metropolitan Detention Center in Brooklyn, New York (Dec. 2003)

(the “Supplemental OIG Report”). The OIG Report is available at

https://oig justice.gov/special/0306/full_pdf, most of which is found

at J.A. 34-335. The Supplemental OIG Report is available at

https://oig justice.gov/special/0312/final.pdf, and can be found at

J.A. 336-416.

7

has ultimate responsibility for what happens in a

correctional institution. Clemens Bartollas & Stuart J.

Miller, Correctional Administration 112, 116 (1978);

Nancy M. Campbell, Nat’l Inst. of Corrections, Correc-

tional Leadership Competencies for the 21st Century:

Manager and Supervisor Levels 10—14 (2006). Correc-

tional supervisors are responsible for the work of

officers whom they command, Bartollas & Miller,

supra, at 178, and they shape the culture of the

institution. Campbell, supra, at 27 (“Managers and

supervisors determine the legitimacy of governmental

institutions as the frontline agents of leadership and

management.”).

This literature, which is consistent with the experi-

ence of amici, also makes clear that the decisions of

a warden drive both the successes and failures of

an institution. See John Dilulio, Jr., No Escape:

The Future of American Corrections 12 (1991) (“Poor

prison and jail conditions are produced by poor prison

and jail management; cruel and unusual conditions

are the product of failed management.”); Campbell,

supra, at 35 (“Supervisors carry the ethical culture of

the organization. If they fail, the organization fails.”);

Stan Stojkovic & Mary Ann Farkas, Correctional

Leadership: A Cultural Perspective 99 (2003) (“The

moral sense of a prison is determined by the efforts

of correctional leaders.”). A correctional supervisor's

actions and judgments create concrete and serious

consequences for the frontline staff and detainees. See

Campbell, supra, at 26-27; id. at 32 (“Every action sets

a precedent, shapes expectations, and influences how

others will behave in the future.”).

Well-run prisons require wardens who “make

frequent on-site institutional tours.” John J. Dilulio,

Jr., Governing Prisons: A Comparative Study of

8

Correctional Management 241 (1990 ed.). Successful

prison leaders “are highly ‘hands-on’ and pro-active.

They pay close attention to details and do not wait for

problems to arise but attempt to anticipate them.” Jd.

at 242; see also Kevin N. Wright, Effective Prison

Leadership 17 (1994) (“Pursuit of quality in prison

administration requires dogged attention to detail.”);

Stojkovic & Farkas, supra, at 107-08 (stressing

importance of “correctional presence by management

and leadership”).

Correctional supervisors are also responsible

for protecting detainees from discrimination. Correc-

tional leadership is especially critical when “[r]acial,

cultural, [and] religious . . . differences compound the

power inequality and vulnerability of both offenders

and correctional personnel.” Campbell, supra, at 27.

These immutable differences can create a “tinderbox”

in detention centers that easily ignites in “anger,

misunderstanding, or violence.” Jd. at 35. But it is the

affirmative duty of correctional supervisors to ensure

that the safety and rights of detainees are respected

“even under difficult circumstances.” Jd. at 26.

Laws, regulations, policies, and supervisor oversight

enable a prison to maintain security while at the same

time protecting detainees from correctional-officer

abuses. These protections are most vital in times of

high anxiety when racial and religious prejudices can

take violent form. Correctional supervisors have the

power—and the responsibility—both to be aware of

and to prevent these potential conflicts in prisons.

Id. And, to be sure, there is an obligation for prison

administrators not to incite discriminatory and abu-

sive treatment themselves.

9

B. The Absence of Effective Correctional

Leadership Leads to Abuses

Prison leaders’ actions regarding (or indifference to)

humane treatment of detainees can lead directly to

correctional officers’ abuse of detainees. One needs to

look no further than Philip Zimbardo’s seminal study

of prison society—the Stanford Prison Experiment—to

appreciate this dynamic.

Zimbardo constructed a simulated prison and

selected twenty-one volunteers to participate as either

“guards” or “prisoners” in a two-week experiment. Philip

Zimbardo et al., Interpersonal Dynamics in a Simu-

lated Prison, 1 Int'l. J. Criminology & Penology 69, 73

(1973) (“Interpersonal Dynamics”). Guards, working in

eight-hour shifts and without supervision or policy

guidance, were responsible for maintaining prison

routines—such as meals, a prescribed work regimen,

and recreation time—and for preserving prison security

through disciplinary measures when necessary. In a

matter of days, the prison became a zone of intense

hostility, harassment, and outright aggression. See id.

at 80-81, 89. In the absence of rules, regulations, or

supervisor intervention, a cruel and capricious power

dynamic developed, and the guards committed abuses.

For example, guards regularly cursed and insulted

prisoners, unnecessarily handcuffed and blindfolded

them, forced some into a two-by-two closet for solitary

confinement, force-fed those who refused to eat, and

made them do demeaning tasks, including cleaning

the cell-block’s toilets with their bare hands. Philip

Zimbardo et al., A Pirandellian Prison: The Mind is a

Formidable Jailer, N.Y. Times Mag., Apr. 8, 1973, at

38. The exercise of arbitrary power over every aspect

of the prisoners’ daily existence drove some of the

prisoners into fits of crying, rage, depression, and

10

anxiety so acute that five of them had to be excused

from the study. Id.; Interpersona: Dynamics, supra,

at 81. Zimbardo later declared that the same forces

that contributed to the abuses observed in the

experiment—including “no supervision .. . and no

accountability”—may have contributed to the abuses

perpetrated against detainees by U.S. military guards

at the Abu Ghraib prison in Iraq. Melissa Dittmann,

What Makes Good People Do Bad Things?, Am. Psych.

Assoc. (Oct. 2004), available at http:/(www.apa.org

/monitor/oct04 /goodbad.aspx.

The results of Zimbardo’s experiment are consistent

with the experience of amici and correctional litera-

ture. For example, addressing the abuse at Abu Ghraib,

Major General Antonio M. Taguba noted that “many

of the problems inherent in the 800th MP Brigade

were caused or exacerbated by poor leadership and the

refusal of [the] command to both establish and enforce

basic standards and principles ... .” Seymour M.

Hersh, Torture at Abu Ghraib, New Yorker (May 10,

2004). Correctional officers need to know that their

leaders support compliance with proper policies and

practices, and correctional leaders must in turn mani-

fest those beliefs through their words and actions.

Stojkovic & Farkas, supra, at 112.

C. Wardens’ Actions That Encourage

Discrimination Are Especially Likely to

Produce Abuses by Frontline Correc-

tional Officers

Wardens’ discriminatory directives and epithets

leveled at prisoners can cause frontline officers to

dehumanize and mistreat prisoners. In a Harvard

University experiment conducted several years after

the Stanford experiment, students were told to deliver

electric shocks—at intensities of their choosing—to a

11

member of another group for providing inadequate

solutions to problems. Albert Bandura et al., Disin-

hibition of Aggression Through Diffusion of Respon-

sibility and Dehumanization of Victims, 9 J. Res.

in Personality, 253-69 (1975), https://web.stanford.

edu/dept/psychology/bandura/pajares/Bandural1975.p

df [https://perm a.cc/LV47-PTSM]. One group of

student-punishers was allowed to overhear one of

the “test” administrators describe the members who

were to be shocked as “animals” before the test began;

another group was allowed to overhear the admin-

istrator describe the group as “nice.” The punishers

were more likely to deliver what they thought were

increased levels of electrical shock to members they

had heard described as “animals.” Jd. at 266 (“Dehu-

manized performers were treated more than twice as

punitively as those invested with human qualities

....”). In fact, “subjects gradually increased their

punitiveness toward dehumanized and neutral per-

formers even in the face of evidence that weak shocks

effectively improved performance and thus provided

no justification for escalating aggression.” Jd.

The “Blue Eyes/Brown Eyes Exercise” further

illustrates the effects of an authority’s treating class

members as an “out-group.” See generally William

Peters, A Class Divided: Then and Now (expanded ed.

1987). In that exercise, classroom participants were

segregated into two groups based on eye color. The

authority figure treated participants with blue eyes as

part of the “out-group” in various ways. Through the

course of the day, members of the “out-group” were

considered inferior, teased by other participants, and

verbally abused based on nothing more than their

eye color. Id. at 22-26. The same exercise produced

comparable results when conducted with correctional

12

staff in the lowa Department of Corrections. Jd. at

141-62.

The combination of labeling detainees as part of an

“out-group,” dehumanizing them, and allowing correc-

tional officers to exercise broad discretion with limited

supervision can lead directly to detainee abuse by

officers. This combination was especially potent as ani-

mosity toward Muslims and Arabs soared immediately

after the September 11 terrorist attacks. See Kuang

Keng Kuek Ser, Data: Hate Crimes Against Muslims

Increased After 9/11, PRI (September 12, 2016, 2:45

PM) (noting increase in anti-Muslim hate crimes in

2002, from 28 to 481 incidents).

This is precisely the dynamic that took hold at the

MDC. Respondents allege that the MDC Petitioners

are responsible for the abuses perpetrated against

them—not because the MDC Petitioners were super-

visors, but because the MDC Petitioners detained

Respondents on the basis of race, religion, or national

origin and directed, or knew of and failed to prevent,

abusive conditions in the institution. See Compl.

qi 68-77, 111-18 (alleging Hasty and Sherman

approved documentation falsely representing that

MDC staff individually assessed detainees prior to

confining them in the Administrative Maximum Special

Housing Unit (the “ADMAX SHU”)—the harshest

conditions in the federal prison system—despite

knowing they had no ties to terrorism; approved and

implemented strip search policy to intimidate and

punish detainees; and called detainees “terrorists”);

J.A. 231-40, 282-91 (OIG Rep. 118—26, 152-57)

(documenting ADMAX SHU conditions); J.A. 72 (OIG

Rep. 19) (noting “the BOP did not really know whom

[sic] the detainees were”); J.A. 395 (Supp. OIG Rep. 35)

(concluding strip searches were “inappropriate”).

13

il. FEDERAL PRISONS OPERATE ACCORD-

ING TO CLEAR LINES OF AUTHORITY

AND REQUIRE NON-DISCRIMINATORY

DETENTION PRACTICES

Federal regulations and policies governing the man-

agement of BOP facilities require the warden to be

intimately involved in the administration of the

facility.*® In particular, a warden is required to play a

critical role in both the decision to place a detainee in

restrictive confinement‘ and the decision to continue

to keep a detainee in restrictive confinement. A

warden must implement and follow strict procedures

to ensure that detainees are placed in restrictive

confinement only under limited and clearly defined

circumstances. The regulations are clear that

detainees may not be confined on a discriminatory or

non-individualized basis.

The conduct alleged in Respondents’ Fourth Amended

Complaint demonstrates that the MDC Petitioners did

not remotely follow the applicable regulations as to

conditions of confinement. Specifically, Respondents

allege that the MDC Petitioners ordered their place-

ment in the ADMAX SHU without individualized

assessments of their dangerousness or risk and owing

only to the fact that they were perceived as Muslim

or Arab. Respondents also allege that the MDC

Petitioners chose to disregard readily available infor-

mation demonstrating the absence of any ties between

* Amici discuss relevant BOP regulations and policies that

were in effect at the time of the allegations set forth in the Fourth

Amended Complaint.

* The term “restrictive confinement” is used herein to describe

conditions of confinement that are sometimes referred to as

restrictive confinement, solitary confinement, administrative

detention, or disciplinary segregation.

14

Respondents and terrorism and instead confined

Respondents in the ADMAX SHU for extended periods

of time without regard for due process. If the MDC

Petitioners had followed BOP regulations and policies,

it is highly unlikely that any of this could have

occurred.

A. Federal Regulations Require Wardens

to Play a Critical Role in Placing

Detainees in Restrictive Confinement

and Strictly Define the Circumstances

Under Which Restrictive Confinement

Is Permissible

1. BOP Regulations Require Wardens’

Involvement in the Placement of Detain-

ees in Restrictive Housing

BOP regulations and policies require the warden’s

involvement before a detainee can be placed in restric-

tive confinement. One form of restrictive confinement

is termed “administrative detention,” defined as “the

status of confinement of an inmate in a special housing

unit in a cell either by self or with other inmates which

serves to remove the inmate from the general

population.” 28 C.F.R. § 541.22 (2001). Under 28

C.F.R. § 541.22(a) (2001), the warden may place an

inmate in administrative detention when the inmate’s

* Immigration detainees are entitled to due-process protection

against punishment—greater protection than that afforded to

convicted prisoners under the Eighth Amendment, see Beil v.

Woilfish, 441 U.S. 520, 537 n. 16 (1979), Wong Wing v. United

States, 163 U.S. 228, 238 (1896)— but even policies applicable to

post-conviction prisoners forbid the type of treatment alleged in

the Fourth Amended Complaint. Because post-conviction regula-

tions are relevant as a minimum floor for all inmates, amici

discuss regulations that apply to both pre-trial detainees and

convicted prisoners.

15

continued presence in the general population “poses a

serious threat to life, property, self, staff, other

inmates or to the security or orderly running of the

institution.” A warden who places an inmate in

administrative detention on any such basis must

prepare an order “detailing the reasons for placing

[the] inmate in administrative detention” and must

furnish a copy of that order to the inmate within

twenty-four hours unless doing so compromises

institutional security. 28 C.F.R. § 541.22(b) (2001).

And even when permissible, administrative detention

may occur “only for short periods of time except where

[the detainee requires] long-term protection . .. or

where there are exceptional circumstances, ordinarily

tied to security or complex investigative concerns.”

28 C.F.R. § 541.22(c) (2001). Furthermore, detention

must end “when reasons for placement cease to exist.”

Id.

Another form of restrictive confinement is termed

“disciplinary segregation.” Disciplinary segregation

is primarily a punitive measure imposed “when other

available dispositions are inadequate to achieve the

purpose of punishment and deterrence necessary

to regulate an inmate’s behavior within acceptable

limits.” 28 C.F.R. § 541.20(a) (2001).° Under federal

regulations, a warden may place an inmate in discipli-

nary segregation only following a hearing in which a

ae

* A warden may also temporarily place an inmate in a more

secure cell (which may be an area normally reserved for

disciplinary segregation) for up to five days where the inmate

causes a serious disruption (threatening life, serious bodily harm,

or property) and where the inmate cannot be controlled through

administrative detention; or upon the advice of medical staff. 28

C.F.R. § 541.20(b) (2001).

16

Disciplinary Hearing Officer determines that the

inmate has committed certain prohibited acts. Jd. In

such instances, the warden must provide the inmate

with advance written notice of the charge(s) against

the inmate no fewer than twenty-four hours before the

hearing. 28 C.F.R. § 541.17(a) (2001). The period of

disciplinary segregation may not exceed sixty days for

a single offense. 28 C.F.R. § 541.13 Table 6 (2001).

A warden must also designate a staff member to

serve as a Segregation Review Official (the “SRO”) to

conduct regular reviews of inmates in restrictive

confinement. 28 C.F.R. § 541.16(d) (2001). In addition

to mandating that the SRO review an inmate’s status

within seven days of his placement in restrictive

confinement, the applicable regulations require the

SRO to conduct weekly reviews and hearings every

thirty days to assess the inmate’s case. 28 C.F.R.

§§ 541.20(c), 541.22(c) (2001). See also Virginia

Hutchinson et al., Nat’l Inst. of Corrections, Inmate

Behavior Management: The Key to a Safe and Secure

Jail 5 (2009) (noting that “[j]ail policies and procedures

must ensure that every inmate is formally reassessed

in response to new information and at regularly

scheduled intervals”).

2. BOP Regulations and Policies Prohibit

Segregation of Detainees on Non-

Individualized Grounds and Discrim-

inatory Bases

Given that BOP regulations require officials to

make an individualized decermination before subject-

ing an inmate to restrictive confinement, wardens

may not single out inmates for harsher conditions of

confinement except in limited circumstances. See

28 C.F.R. §§ 541.20(a), 541.20(b), 541.22(a), 541.22(b)

17

(2001) (defining disciplinary segregation and administra-

tive detention, respectively, and delineating procedures

for placement therein). Moreover, BOP regulations

unequivocally prohibit restrictive confinement on

racial, religious, and ethnic grounds. 28 C.F.R.

§ 551.90 (2001) (“[BOP] staff shall not discriminate

against inmates on the basis of race, religion, national

origin, sex, disability, or political belief. This includes

the making of administrative decisions and providing

access to work, housing and programs.”).

B. The Complaint and the OIG Report

Demonstrate that the MDC Petitioners

Did Not Follow BOP Regulations and

Policies

Given the conduct alleged in Respondents’ Fourth

Amended Complaint and the OIG’s findings, the

MDC Petitioners could not have acted in compliance

with the governing regulations. The MDC Petitioners

“ordered prolonged placement of [Respondents] and

class members in the ADMAX SHU without following

the processes they knew the law required for such

deprivation.” Compl. { 68. By issuing these orders, the

MDC Petitioners appear to have systematically ignored

exculpatory evidence that supported ending the detain-

ees’ restrictive confinement. Instead, the MDC Peti-

tioners denied Respondents the due process required

for placement in restrictive confinement, in violation

of their superintendent duties.

18

1. The MDC Petitioners Subjected Respond-

ents to Restrictive Confinement Based on

Discriminatory and Non-Individualized

Determinations in Violation of BOP

Regulations and Policies

The MDC Petitioners subjected Respondents

to confinement in the ADMAX SHU through the

implementation of discriminatory practices that

violated the regulations and policies described above.’

First, the MDC Petitioners ordered their subordinates

to ignore the regulations that limit the circumstances

under which detainees may be placed in restrictive

confinement and that require weekly reviews and

formal hearings every thirty days to assess a

detainee’s status. Jd. As addressed in the OIG Report,

“the BOP did not review the status of each September

11 detainee on a weekly basis and did not conduct

formal hearings monthly to assess the detainee’s

status. Rather, it relied on the FBI’s assessment of

‘high interest.” J.A. 230-31 (OIG Rep. 118). Second,

the MDC Petitioners confined Respondents and class

members to the ADMAX SHU for months beyond the

timeframes authorized by federal regulations. Compl.

{1 74, 76. Detainees placed in the ADMAX SHU were

also automatically labeled “continue high security” in

’ The OIG Report notes that “ADMAX units are not common in

most BOP facilities because the conditions of confinement for

disciplinary segregation or administrative detention in a normal

[special housing unit] are usually sufficient for correcting inmate

misbehavior and addressing security concerns.” J.A. 231 (OIG

Rep. 118-19). That the MDC Petitioners oversaw the creation of

such a unit and ordered that Respondents and class members be

confined there without any legitimate reason to believe that their

circumstances even warranted placement in a normal special

housing unit highlights their brazen disregard for proper prison

procedure.

19

their monthly restrictive confinement reports, and

they were denied any objective review of their place-

ment. Id. at J 68; see also J.A. 231 (OIG Rep. 118).

The MDC Petitioners must have been aware that

placing Respondents in the ADMAX SHU without

individualized determinations violated applicable

regulations and policies. Certainly, the inference that

they were aware is plausible, if not necessary. Thus,

by approving documents stating falsely that Respond-

ents were being held there based on “individualized

assessment(s) of their ‘precipitating offense, past

terrorist behavior, and inability to adapt to incar-

ceration,” the MDC Petitioners knowingly violated

BOP regulations and policies. Compl. { 74. As alleged,

no such information was considered by the MDC

Petitioners when deciding to place Respondents in

the ADMAX SHU. To the contrary, the MDC Petition-

ers received—-but apparently disregarded—frequent

written updates demonstrating the absence of evidence

linking Respondents to terrorism or indicating that

they posed any danger. Jd. at 9 70. Specifically, an

MDC intelligence officer prepared and circulated these

reports based on comprehensive FBI and INS detainee

lists and databases reviewed for the very purpose of

keeping the MDC Petitioners informed of any new

intelligence on the detainees. Jd. at J 69.

The Fourth Amended Complaint also sets forth facts

evincing violations of BOP regulations prohibiting

discriminatory housing of inmates. The MDC Petition-

ers’ disregard of exculpatory information and making

of false claims that individual assessments were

conducted render all the more plausible Respondents’

allegations that they were detained in restrictive

conditions on account of being, or being perceived as,

20

Muslim or Arab, id. at {9 60, 68-74, in violation of

BOP regulations. 28 C.F.R. § 551.90 (2001).

There can be no dispute that “a restriction or condi-

tion [that] is not reasonably related to a legitimate

goal” amounts to “punishment that may not consti-

tutionally be inflicted upon detainees qua detainees.”

Wolfish, 441 U.S. at 539. The MDC Petitioners’ char-

acterization of all Respondents as “terrorists” without

any individualized determinations and the accom-

panying abuse evinces no legitimate penological objec-

tives; rather, the MDC Petitioners’ actions reflect

unacceptable discriminatory purposes.

This Court has also long recognized that racial

discrimination is “especially pernicious in the

administration of justice.” Rose v. Mitchell, 443 U.S.

545, 555 (1979). And the Court has repeatedly refused

to relax its equal-protection standards in the prison

context. Johnson v. California, 543 U.S. 499, 510-12

(2005) (holding California’s prison inmate racial

segregation policy subject to strict scrutiny) (“The

right not to be discriminated against based on

one’s race .. . is not a right that need necessarily

be compromised for the sake of proper prison admin-

istration.”); Lee v. Washington, 390 U.S. 333 (1968)

(affirming order requiring desegregation of Alabama

prisons and jails). If the MDC Petitioners had followed

BOP regulations and treated Respondents as “regular’

high-security inmates,” J.A. 72 (OIG Rep. 19), then

they would have conducted individualized assess-

ments both before and during confinement in the

ADMAX SHU. No FBI terrorism designation or BOP

order excuses the lack of individual assessments or

discriminatory confinement.

21

Ill. BOP FACILITIES OPERATE ACCORDING

TO REGULATIONS THAT PROHIBIT

ABUSIVE TREATMENT

Federal regulations and policies forbid the physical

or verbal abuse of inmates and provide specific

procedures under which a warden must address com-

plaints by inmates concerning treatment. Respondents’

Fourth Amended Complaint alleges, and the OIG

found, that the MDC Petitioners were aware of

and condoned abusive physical and verbal treatment

of detainees, oversaw inappropriate strip searches,

and deliberately ignored numerous complaints lodged

by detainees concerning abusive conditions in the

ADMAX SHU.

A. BOP Regulations and Policies Do Not

Permit Abusive Treatment Under Any

Circumstances

1. Use of Restraints and Force

BOP regulations and policies restrict the conditions

under which prison personnel may use force or

restraints (including, inter alia, handcuffs and four-point

restraints) on inmates. Importantly, BOP regulations

prohibit prison personnel from applying restraints to

inmates confined to an administrative detention cell

such as the ADMAX SHU without approval of the

warden or his designee. 28 C.F.R. § 552.22(g) (2001).

As to the use of force, prison personnel may resort to

such methods “only as a last alternative after all other

reasonable efforts to resolve a situation have failed.”

28 C.F.R. § 552.20 (2001). Under such circumstances,

“staff must use only that amount of force necessary to

gain control of the inmate, to protect and ensure the

safety of inmates, staff, and others, to prevent serious

property damage and to ensure institution security

22

and good order.” Jd. Finally, any incident involving the

use of force or the application of restraints must be

carefully reported and such report must be placed in

the inmate’s central file. 28 C.F.R. §§ 552.22(j), 552.27

(2001).

2. Prohibitions Against Verbal Abuse

BOP policy strictly forbids verbal abuse against

prisoners. See BOP Program Statement P.S. 3420.09

(9\(c4) (02/05/1999). Specifically, “[a]lm employee may

not use profane, obscene, or otherwise abusive lan-

guage when communicating with inmates, fellow

employees, or others. Employees shall conduct them-

selves in a manner which will not be demeaning to

inmates, fellow employees, or others.” Jd.

3. Strip Searches of Inmates

Federal regulations clearly define the circumstances

under which BOP personnel may conduct body

searches of inmates. Among the types of searches that

staff may conduct are visual—i.e., strip—searches,

which are defined as the “visual inspection of all body

surfaces and body cavities.” 28 C.F.R. § 552.11(b)

(2001). BOP personnel may only conduct a strip search

when they have a reasonable belief that an inmate

may be concealing contraband, or where an inmate

has had a good opportunity for such concealment.

28 C.F.R. § 552.11(b)(1) (2001).

Federal regulations also prescribe the manner in

which strip searches are to be performed. Strip

searches must be conducted so as to assure an inmate

“as much privacy .. . as practicable.” Jd. Moreover,

federal regulations require that strip searches be

performed by personnel of the same sex as the inmate,

“except where . . . delay would mean the likely loss of

23

contraband.” 28 C.F.R. § 552.11(b)(2) (2001). Where

staff of the opposite sex perform a strip search, the

reasons for doing so must be recorded in the inmate’s

central file. Jd.

4. Mandatory Review of Inmates’ Complaints

Wardens at BOP facilities are responsible for ensur-

ing that inmates’ complaints are satisfactorily resolved.

In particular, federal regulations provide that inmates

are entitled to formal review of their complaints

regarding conditions of confinement—including those

concerning abusive treatment—through an admin-

istrative remedy program. See 28 C.F.R. § 542.10

(2001). Inmates have recourse to the program “if less

formal procedures have not resolved the matter.” Jd.

Under these regulations, the warden must “[e]stablish

procedures for receiving, recording, reviewing, investi-

gating, and responding to Administrative Remedy

Requests .. . or Appeals . . . submitted by an inmate,”

as well as acknowledge receipt of, investigate, and

respond to all such requests or appeals. 28 C.F.R.

§ 542.11(a) (2001). Failure to fulfill these responsibili-

ties is a violation of the warden’s duties.

B. The Abusive Treatment at Issue Could

Only Have Occurred with the MDC

Petitioners’ Knowledge and Failure

to Take Measures to Prevent Such

Treatment

The allegations in Respondents’ Fourth Amended

esis and the OIG’s findings demonstrate that

® Under 28 C.F.R. § 542.13 (2001), an inmate must first seek

informal resolution of a complaint from prison staff before lodging

a formal Request for Administrative Remedy. The warden is

responsible for devising the process by which prison staff may

informally resolve complaints.

24

the MDC Petitioners must have known that they were

not in compliance with federal regulations governing

the appropriate treatment of inmates because they

ordered, approved, and implemented abusive and

unlawful detention protocols and conditions that

specifically targeted Muslim and Arab detainees.

Compl. {{ 60, 75. In addition, the MDC Petitioners

ignored detainees’ complaints of abuse in dereliction of

their duty to properly implement an administrative

remedy program. As a result of this failure to follow

BOP regulations and policies, Respondents were

subjected to unlawful treatment.

Contrary to federal regulations strictly limiting the

use of force and restraints against detainees, MDC

personnel stated in interviews that “it was appropriate

to bend detainees’ thumbs, gooseneck their wrists, or

use pain compliance methods if the detainees were

being noncompliant or combative, although many of

them said the detainees never were noncompliant or

combative.” J.A. 366 (Supp. OIG Rep. 17). In another

interview, an MDC official “incorrectly thought that

security procedures required officers to step on

detainees’ leg restraint chains whenever they were

stopped or whenever officers needed to remove their

leg restraints.” J.A. 372 (Supp. OIG Rep. 21). In

addition, the Fourth Amended Complaint alleges

various instances of the improper use of restraints

on detainees, including using restraints “as a form

of punishment by leaving [detainees] in a cell in

restraints for no proper penological purpose.” Compl.

q 105.

If the MDC Petitioners were doing their jobs con-

sistent with the applicable regulations and policies,

it is highly unlikely that such conduct could have

25

occurred. Indeed, disregard of BOP policies by correc-

tional officers could only result from a failure on

the part of the MDC Petitioners to properly train

personne! in BOP policies, or from the MDC Petition-

ers’ failure to enforce BOP policies. Or, even worse,

the MDC Petitioners could have instructed personnel

to engage in prohibited acts. For example, the OIG

details an incident where an individual believed to

be a senior MDC official was heard on a videotape

stating, “We’ve got to leave them in restraints and

make them behave.” J.A. 378 (Supp. OIG Rep. 25).

After numerous complaints of abuse by detainees,

the OIG, the BOP Office of Internal Affairs, and the

FBI all opened investigations. The BOP also enacted a

new policy in early October 2001 to video-tape the

detainees whenever they were outside of their cells.

Compl. { 107; J.A. 344 (Supp. OIG Rep. 4). The fact

that three different government entities found it

necessary to launch investigations into allegations of

mistreatment, as well as to ensure that any potential

interactions between MDC personnel and the detain-

ees in the ADMAX SHU were recorded, strongly

corroborates the allegations that the MDC Petitioners

failed to properly carry out their duties, as do the

OIG’s findings.

The MDC Petitioners also contributed to the verbal

abuse of Respondents and failed to prevent such abuse

after it was brought to their attention. For instance,

the MDC Petitioners themselves referred to the

detainees as “terrorists” in internal memoranda, and

this term, as well as other derogatory names, were

adopted by MDC personnel to disparage the detainees.

See Compl. J 147. As alleged in the Fourth Amended

Complaint:

26

MDC staff frequently interrupted [Respond-

ents’| and class members’ prayers by banging

on cell doors, screaming derogatory anti-

Muslim comments, videotaping, and telling

them to “shut the fuck up” while they were

trying to pray. Staff also mocked the detain-

ees’ prayer by attempting to repeat the Arabic

phrases of the Azan (the call to prayer) loudly.

One MDC guard frequently yelled “Jesus”

whenever he heard the opening phrases of the

Azan.

Id. at J 136. As psychological studies have found and

correctional experts have observed, wardens’ actions

and characterizations of inmates directly affect correc-

tional officers’ treatment of inmates. See Bandura et

al., supra, at 266; Campbell, supra, at 26—27; id. at 32;

Stojkovie & Farkas, supra, at 99.

Evidence and complaints of such verbal harassment

were brought to the attention of the MDC Petitioners,

and yet the verbal abuse persisted (perhaps because

the MDC Petitioners themselves used such language).

Compl. 94 110, 137. In fact, even without complaints,

it is likely that the MDC Petitioners were aware of the

derogatory terms directed at Respondents. The Fourth

Amended Complaint alleges that the verbal harass-

ment of the detainees “was so pervasive that one MDC

employee estimated that half of the staff at MDC

stopped speaking to him after he wrote a confidential

memo to the Warden [Hasty] detailing detainees’ com-

plaints that was then distributed to the staff members

on the ADMAX unit.” Jd. at J 78. Asin other instances,

however the reported harassment went unpunished.

Id.

In addition, the OIG found that the MDC Petitioners

oversaw an unwritten strip-search policy that violated

27

the regulations governing such searches. J.A. 393

(Supp. OIG Rep. 34). The OIG found that strip

searches were conducted far more frequently than

authorized, including when detainees entered the

ADMAX SHU, departed the ADMAX SHU, before

medical examinations, and after attorney meetings,

social visits, and recreation sessions. Id. These prac-

tices caused detainees to endure strip searches “for

no apparent reason, either minutes after they had

been thoroughly searched in [Receiving & Discharge

(R&D’)] and immediately escorted by officers to the

ADMAX SHU, or when they had not even left the

ADMAX SHU.” J.A. 392 (Supp. OIG Rep. 33). See also

Compl. {4 112—13. Detainees were further subjected

to strip searches before and after non-contact attorney

visits during the course of which they were under

constant monitoring, handcuffed, and shackled, and

after being directly transferred from one cell to

another. Compl. 4 112. These strip searches could not

have been justified and were in violation of BOP

regulations, as the detainees had no opportunity to

obtain contraband under the circumstances. Nonethe-

less, some MDC officials stated that the conduct of

these types of illegal strip searches was “standard

MDC policy.” J.A. 394 (Supp. OIG Rep. 34).

As a result of the BOP policy requiring that

detainees be videotaped whenever they were outside

of their cells, MDC staff, acting under the MDC Peti-

tioners’ instructions, filmed many strip searches in

their entirety. J.A. 392 (Supp. OIG Rep. 33); Compl.

{ 116. Such practices violated the regulations requiring

that prison personnel perform strip searches “in a

manner designed to assure as much privacy to the

inmate as practicable.” Compl. { 116. There can be no

dispute that the MDC Petitioners were aware of these

practices because MDC staff maintained a “visual

28

search log” for MDC administration to review. Jd. at

{ 114. Consequently, the MDC Petitioners knew that

detainees faced unlawful, invasive strip searches but

failed to take remedial action.

It is highly unlikely that these arbitrary strip

searches were the result of a few malfeasant MDC

officers; rather, MDC personnel carried out the video-

taped strip searches under orders from the MDC

Petitioners. Given the allegations contained in the

Fourth Amended Complaint, coupled with the OIG’s

findings, there can only be one logical conclusion: the

MDC Petitioners either actively directed, or failed to

prevent, the conduct alleged. Either way, the MDC

Petitioners were grossly derelict in their duties.

IV. THE MDC PETITIONERS’ ARGUMENT

THAT THEY WERE PERMITTED TO

VIOLATE APPLICABLE REGULATIONS

AND POLICIES BASED ON FBI TERROR-

ISM DESIGNATIONS AND BOP ORDERS

IS BASELESS

The MDC Petitioners contend that they cannot

be held liable for the alleged unlawful conditions of

confinement because they were following FBI terror-

ism designations and BOP policy. Hasty & Sherman

Br. 32—36, 40. BOP wardens, however, are under no

obligation to follow assessments from a different agency

component like the FBI that has no command author-

ity over them. And te the extent that BOP Headquar-

ters instructed MDC officials to restrictively confine

detainees, wardens are not obligated to perform acts

that violate the law or contradict longstanding BOP

regulations and policies—such as imposing solitary

confinement based on a blanket “designation,” rather

than conducting individualized determinations. Further-

29

more, detainees are entitled to certain minimum con-

finement conditions, which do not permit physical or

verbal abuse, regardless of what “orders” might be

given—not that it appears the MDC Petitioners claim

they were following orders with respect to the abuse of

detainees. Finally, as a matter of law, when wardens

act outside the law and violate BOP regulations,

claims that they were just “following orders” do not

immunize them from liability for their wrongful

conduct. Forsyth v. Kleindienst, 599 F.2d 1203, 1217

(3d Cir. 1979), cert. denied, Mitchell v. Forsyth, 453

U.S. 913 (1981).

A. Wardens Are Not Required to Follow

FBI Designations Because—as BOP

Employees—They Are Not Within the

FBI’s Chain of Command; Nor Are They

Required to Follow BOP Instructions

on Restrictive Confinement That Vio-

late BOP Regulations and Policies

As officials within the BOP—a DOJ component

separate from, but not subordinate to, the FBI—wardens

are not required to follow FBI “orders” concerning con-

finement conditions. The BOP and the FBI are co-

equal “principal organizational units” within the DOJ.

28 C.F.R. § 0.1 (2001); OIG Rep. App. C (DOJ organiza-

tional chart). The BOP director serves directly under

the Attorney General, 18 U.S.C. § 4041 (2000), not

the FBI director. In addition, the BOP, not the FBI,

is charged with managing and regulating all federal

penal and correctional institutions. 18 U.S.C. § 4042(a)(1)

(2000); 28 C.F.R. § 0.95(a) (2001). And it is the BOP,

* The OIG Report appendices are not included as part of the

Joint Appendix, but are available at https://oig.justice.gov/

special/0306/full.pdf.

30

not the FBI, that is tasked with housing, protecting,

and caring for inmates, 18 U.S.C. § 4042(a)(2), (3)

(2000), as well as the “[cllassification, commitment,

control, or treatment of persons committed to the

custody of the Attorney General.” 28 C.F.R. § 0.95(d)

(2001).

Thus, the FBI had no authority to oversee—or

command—MDC officials, including wardens Hasty

and Sherman in any fashion. The FBI can do no more

than provide “recommendations” to the BOP, which

itself, in turn, issues directives to wardens. Relying on

the FBI’s terrorism designations, the BOP decided to

“treat the September 11 detainees as high-security

detainees,” J.A. 72 (OIG Rep. 19), despite the fact that

“BOP did not really know whom [sic] the detainees

were.” Id.

But even if the FBI or the BOP had the authority

to instruct MDC officials to disregard applicable

laws and regulations, no one actually directed the

MDC Petitioners to treat Respondents differently than

high-security detainees are typically treated. See

supra II.B. The MDC Petitioners, therefore, were still

required to comply with BOP regulations and policies

and make individualized determinations concerning

whether to implement restrictive confinement condi-

tions, rather than confining detainees simply on the

basis of their being, or being perceived as, Muslim or

Arab.

B. The Harms Alleged by Respondents

Were the Result of Direct Involve-

ment by the MDC Petitioners, Which

Exceeded Any “Orders” From the

FBI and the BOP

The MDC Petitioners contend that they were merely

following policies and orders issued by superiors,

31

Hasty & Sherman Br. at 32, but that misconstrues

the facts alleged in the Fourth Amended Complaint.

Respondents allege that the MDC Petitioners took an

active role in designing and implementing abusive and

unlawful detention conditions at the MDC, Compl. {

75, and that the MDC Petitioners were deliberately

indifferent to abuses perpetrated by frontline officers.

Id. at JY 24, 26, 77-78.

Respondents allege several instances in which the

MDC Petitioners went above and beyond any order in

numerous ways, creating conditions of confinement

that were unlawful, against BOP regulations and

policies, and contrary to correctional “best practices,”

thus supporting the inference of punitive intent.

See Wolfish, 441 U.S. at 539 n.20 (noting that while

“loading a detainee with chains and shackles and

throwing him in a dungeon may ensure his presence

at trial and preserve the security of the institution”

such conditions would “support a conclusion that the

purpose for which they were imposed was to punish”).

First, the BOP did not order the MDC Petitioners to

video- and audio-record detainee conversations with

their attorneys. Nevertheless, when detainees finally

secured legal representation, the MDC Petitioners

instituted a policy of audiotaping those conversations

and disregarded MDC staffs alternative “silent wit-

ness” camera proposals. Compl. {J 98—99.

Second, the BOP did not order the MDC Petitioners

to strip-search the detainees in a manner contrary to

law and BOP policy. But the MDC Petitioners never-

theless approved and implemented a strip-search

policy that “inappropriately used strip searches to

intimidate and punish detainees,” J.A. 395(Supp. OIG

Rep. 35), and violated BOP policy. J.A. 392—93 (Supp.

OIG Rep. 33—34). See supra IIIB.

32

Finally, the BOP did not order the MDC Petitioners

to harass the detainees. But Petitioner Hasty called

the detainees “terrorists” in various memoranda.

Compl. J 109. Such epithets, combined with Petitioner

Hasty’s deliberate failure to make rounds in the ADMAX

SHU—contrary to BOP regulations and policies and

correctional “best practices”—or otherwise supervise

frontline officers, led directly to officers’ verbal and

psychological harassment of detainees. Jd. at 74 109,

120—21, 136—37. See supra III.B.

As the Second Circuit found, the OIG Report sup-

ports Respondents’ allegations concerning the design

and implementation of the confinement conditions

because, “while the decision to impose highly restric-

tive conditions was made at BOP headquarters .. .

MDC officials created the particular conditions imposed.”

Turkmen v. Hasty, 789 F.3d 218, 247 (2d Cir. 2015)

(citing OIG Rep. 19, 124—25). The order to hold the

detainees in “the highest level of restrictive deten-

tion,” id. at 248, does not justify the detention

conditions that the MDC Petitioners designed and

implemented.

C. Wardens Are Not Required to Follow

Orders Requiring the Violation of

BOP Regulations and Policies That

Safeguard Detainees’ Safety

Wardens may not escape liability simply because

they complied with superiors’ orders if those orders

violate clearly established law and BOP regulations

and policies. The MDC Petitioners contend that they

should not liable for the confinement and treatment of

detainees because they could not “disregard” FBI

designations, and that such insubordination would

upend the “proper functioning of law enforcement.”

Hasty & Sherman Br. at 32. But the Constitution,

33

BOP regulations and policies, and effective correc-

tional practices give no quarter to the notion that

obeisance to unlawful orders should immunize correc-

tional officials from liability.

The “following-orders” defense plainly does not stretch

to immunize the MDC Petitioners here. Simply put, a

correctional officer’s “[rjeliance on a superior’s orders

does not in itself dissipate all liability.” Thaddeus-X v.

Blatter, 175 F.3d 378, 393 (6th Cir. 1999) (en banc). As

circuit courts have held in the law-enforcement and

correctional context, “if [officials] knew or should have

known that their actions were violating the plaintiffs’

constitutional rights, then they will not be allowed to

hide behind the cloak of institutional loyalty.” Forsyth,

599 F.2d at 1217 (rejecting FBI agent’s following

orders argument). See also Raysor v. Port Auth. of

N.Y. & N.J., 768 F.2d 34, 38 (2d Cir. 1985) (citing

Restatement (Second) of Agency § 343 comments b, d

(1958)) (holding police officer who followed sergeant’s

orders could be found liable under 42 U.S.C. § 1983

for false arrest because of “the general tort rule that

an agent is not relieved of liability merely because

he acted at the command of the principal”). Where

correctional officers have similarly contested their

liability because they lacked authority to alter

maximum-security classifications, lower courts have

held that liability may be premised on the officers’

failure to remedy a jail inmate’s conditions of confine-

ment that they knew to be punitive. Villanueva v.

George, 659 F.2d 851, 854-55 (8th Cir. 1981) (en banc).

Other petitioners recognize that the purported chain

of command is not inviolate. Petitioner James Ziglar

“acknowledged that at some point he should have

‘gone around the chain of command’ directly to the

Attorney General or the Deputy Attorney General” to

34

voice “INS’s concerns about the ramifications caused

by the slow pace of the detainee clearance process.”

J.A. 146-47 (OIG Rep. 67).'°

The MDC Petitioners cannot escape liability based

on their argument that they were just following

orders. Respondents detail sufficient facts demon-

strating that the MDC Petitioners were aware that

the assignment of detainees to restrictive confinement

was impermissibly based on the detainees’ race, reli-

gion, or national origin, was carried out without any

individual assessment, Compl. {] 68-74; Lee, 390 U.S.

333, and lacked legitimate penological purpose.

Compl. 49] 68-76; Wolfish, 441 U.S. at 539. Moreover,

BOP regulations and policies proscribing such actions,

see supra II.A, III.A, made them “fully aware of the

wrongful character of their conduct.” See Hope v.

Pelzer, 5386 U.S. 730, 744 (2002).

The “following-orders” defense is not justifiable as

a matter of effective correctional management either.

“Correctional managers and supervisors are tempted

to deny responsibility because the jobs are hard, the

decisions tough, and the consequences difficult. More-

over, managers and supervisors may receive harmful

or questionable directives, yet feel au obligation to

follow rules and orders.” Campbell, supra, at 34.

But blind all dance to questionable orders “reduces

the manager or supervisor to a machine with no

discretion or judgment.” Jd. at 35. Contrary to the

Reporting up the chain of command also rarely occurred. The

OIG reported that the New York FB] and INS “failed to keep FBI

and INS Headquarters informed of ail aliens who would be

subject. to the clearance investigation requirement,” attributing

the lack of oversight to the New York offices’ “long history of

taking actions independent of direction from their Washington,

D.C., headquarters.” J.A. 124 (OIG Rep. 54).

35

MDC Petitioners’ argument, it is, instead, immuniza-

tion of correctional officials who follow unlawful orders

and fail to remedy punitive conditions of confinement

that would undermine the proper functioning of jails

and prisons.

CONCLUSION

The Court should affirm the judgment of the court

of appeals in favor of Respondents.

Respectfully submitted,

JOSHUA COLANGELO-BRYAN ANDREW S. POLLIS

DANIEL GOLDBERGER Counsel of Record

JEREMY SCHLOSSER AVIDAN Y. COVER

DORSEY & WHITNEY LLP MILTON A. KRAMER LAW

51 West 52nd Street CLINIC CENTER

New York, NY 10019-6119 CASE WESTERN RESERVE

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andrew. pollis@case.edu

December 27, 2016