The Inexplicable

Court: No, It Wasn’t “Reasonable” to Lock Grandma Up With Male Inmates

Question: Should prison medical staff know it violates the Eighth Amendment to take someone they knew or should have known was female and lock her up with male inmates?

District court’s answer: no?

Eleventh Circuit’s answer: What? Obviously yes.

The issue was not so much the facts, which are outrageous, but the doctrine of “qualified immunity,” which is designed to give officials the benefit of the doubt in certain cases. It requires a plaintiff to allege facts showing not only that the defendants violated a constitutional right, but that the right at issue was “clearly established” at the time of the violation. Prison officials get sued a lot, and the idea is that they shouldn’t be held liable in difficult cases if the law was unclear at the time they acted.

This wasn’t one of those cases, the appellate court said.

The plaintiff is Fior Pichardo de Veloz, a lawyer and elected official from the Dominican Republic who was 50 years old at the time of the incident in 2013. She had flown to Miami to be present for the birth of a grandson, but when she arrived, she was arrested on an outstanding warrant and taken to jail.

According to some reports, the warrant was for a cocaine-possession charge dating back to 1988. For purposes of her lawsuit, it doesn’t matter what she was arrested for. But I’m going to mention anyway that (1) if someone in Miami possessed cocaine in 1988, the statute of limitations would most likely have expired decades ago; and (2) it’d probably be difficult to find someone in Miami who didn’t possess cocaine in 1988. But our drug warriors are, of course, eternally vigilant.

So to jail she went. And what allegedly transpired over the next 24+ hours is absolutely baffling. Because even though she had been strip-searched—degrading, but usually standard practice before incarceration—other officials eventually “reclassified” her as male and put her in a cell overnight with male inmates. The main culprits, according to the complaint, were a nurse who insisted Pichardo was a man, apparently based on a note in the medical file saying she was taking “hormone replacement pills,” and a doctor who reclassified her as male for the same reason. This was despite the strip search, her persistent denials of maleness, and their admitted knowledge that there is more than one possible reason for hormone replacement therapy.

The doctor said he asked Pichardo “if she had all of her sex parts,” but didn’t ask her why she was taking hormone replacement pills because he felt that was “a difficult question to ask.” Even more bafflingly, the nurse then flat-out lied to an officer and told her during this second evaluation, “everything fell out”—meaning male “sex parts”—though the nurse had not been in the room and hadn’t spoken to the doctor at all. (Seems likely the nurse had decided Pichardo was transgender and was discriminating against her on that basis.) Eventually, someone ordered that Pichardo be reclassified as male, and she was transferred to a male facility where she spent the next seven hours or so hoping not to be raped by her 40 male cellmates. The next day, she was re-reclassified and released shortly thereafter.

Lawsuit followed.

The defendants, not surprisingly, argued qualified immunity. This is not surprising partly because, as we have seen before, some courts interpret the defense to mean that unless there’s a prior case where almost exactly the same conduct was found unconstitutional, the defendants couldn’t possibly have known they were doing something wrong. That can yield some pretty  ridiculous results. See, e.g., Padilla v. Yoo (holding it wasn’t clear in 2003 that torture was torture) and Mullenix v. Luna (holding it wasn’t clear in 2010 that shooting a guy in the chest to stop a high-speed chase might have been a little excessive). The district court held not only that all the defendants were entitled to immunity, but that the doctor and nurse didn’t have the necessary “subjective knowledge” required to support a civil-rights claim.

Pichardo did not appeal that decision as to the prison officers, who could at least say they had relied on a decision made by medical personnel (even though the officers clearly had their doubts). But she did argue that the doctor and nurse were not entitled to immunity from a “deliberate indifference” civil-rights claim, and the Eleventh Circuit agreed. As it pointed out, even under current law there doesn’t need to be a prior case right on point if the “the constitutional violation is obvious.” This one was:

[Any] reasonable prison officer and medical personnel would have known that wrongfully misclassifying a biological female as a male inmate and placing that female in the male population of a detention facility was unlawful. The conduct at issue here lies so obviously at the very core of what the Eighth Amendment prohibits [that its unlawfulness would have been] readily apparent…. Accordingly, neither [defendant] is entitled to qualified immunity.

Not that it would have been okay under other circumstances, but it’s worth a reminder that even where qualified immunity is concerned, courts may be especially likely to frown on government officials engaging in pointless humiliation of grandmothers.