Today’s post discusses two recent federal cases involving the use of Tasers in North Carolina jails. (The post draws from an article I originally prepared for the North Carolina Jail Administrators’ Association newsletter.) Continue reading
Tag Archives: sheriffs
The Statewide Misdemeanant Confinement Program took a hit this week in the court of appeals. In Richmond County Board of Education v. Cowell, about half of the money that comes into the program fund—the $50 fee for anyone found responsible for an improper equipment violation—was deemed to be punitive. Under the North Carolina Constitution, the money must therefore go to the public schools. Continue reading →
Sometimes a person who is already incarcerated for one crime needs to be prosecuted for another crime. A surprisingly common question, usually from a sheriff’s office, is who is responsible for getting the defendant-inmate to trial? The county that wants the inmate (the requesting county)? Or the county that has the inmate (the custodial county)? Continue reading →
North Carolina inmates are not allowed to have tobacco products, and other people are not allowed to give tobacco products to them. This session, the legislature changed the law—twice—to address the use of vapor products (like e-cigarettes) in our prisons and jails. Today’s post discusses those changes, beginning with some background on existing law. My colleague Jill Moore, expert in public health law, previously wrote more broadly about e-cigarettes here and here, and I credit her with flagging some of the issues discussed below.
Let’s start with existing law. For the state prisons, G.S. 148-23.1 prohibits any person from using or possessing tobacco products on the premises of a State correctional facility, except for authorized religious purposes. The restriction extends to inmates, employees, and visitors, although employees and visitors may keep (but not use) tobacco products in a locked motor vehicle in the parking area. G.S. 148-23.1(b1). Inmates and employees who violate the prohibition are subject to administrative sanctions, while visitors who violate may lose visitation privileges. There is no criminal penalty for a violation. By contrast, under G.S. 14-258.1, any person who gives or sells tobacco products to a prison inmate, or to a non-inmate for delivery to an inmate, is guilty of a Class 1 misdemeanor. G.S. 14-258.1 defines “tobacco product” by reference to G.S. 148-23.1, which previously covered cigars, cigarettes, snuff, loose tobacco, and similar goods used for smoking, chewing, or dipping.
The rules for jails are similar, but not identical. The prohibition on giving or selling tobacco products under G.S. 14-258.1 applies to jails just as it does to prisons. As for possession, G.S. 14-258.1(e) makes it a Class 1 misdemeanor for any jail inmate to possess tobacco products—again defined by reference to the definition in G.S. 148-23.1—other than for authorized religious purposes. The jail prohibition on tobacco possession is different from its prison analogue in three ways: (1) it is a crime; (2) it outlaws only possession, not use; and (3) it does not apply to jail employees and visitors.
That covers the existing law. Let’s review the changes. First, in S.L. 2014-3, a tax bill, the General Assembly expanded the definition of prohibited “tobacco products” in G.S. 148-23.1 to cover “vapor products.” The bill defined vapor products to include nonlighted products that heat liquid nicotine solutions in a vapor cartridge, such as electronic cigarettes, cigars, and pipes. G.S. 148-23.1(d)(3). That revised definition, effective July 1, 2014, applies across the board to the use/possession prohibition for prisons in G.S. 148-23.1(b) and (b1); the possession prohibition for jails in G.S. 14-258.1(e); and the giving/selling prohibition for jails and prisons in G.S. 14-258.1(c). Even though the revised definition itself now covers vapor products, the bill also added clauses to the prohibitions set out in G.S. 14-258.1 to make absolutely clear that they cover all tobacco products, “including vapor products.” The old belt and suspenders approach.
After the bill was signed into law, some sheriffs and e-cigarette vendors expressed concern that the change would prohibit them from providing or selling vapor products to inmates—something that has become a nationwide trend. So they pursued another change to the law. S.L. 2014-115 amended G.S. 14-258.1 again to add a new subsection setting out an exception to the prohibition on giving or selling tobacco products to jail inmates. By virtue of the exception, jails may “give or sell vapor products or FDA-approved tobacco cessation products . . . to inmates while in the custody of the [jail.]” Earlier versions of the bill would have allowed vapor products to be given or sold to inmates only as part of an authorized smoking cessation program (see, for example, Section 23.(a) of the fourth edition of the bill). But given health professionals’ doubts as to whether vapor products should ever be a part of a cessation program, the final version of the law simply allowed jails to give or sell vapor products or cessation products.
The bill also removed the “including vapor products” clause that had been added to “tobacco products” in the possession prohibition for jails in G.S. 14-258.1(e), probably intending to pave the way for jail inmates to possess the vapor products given or sold to them by jail personnel. But recall that those “including vapor products” clauses were merely the suspenders of the aforementioned belt and suspenders approach; the belt was the revised definition of “tobacco products” in G.S. 148-23.1(d)(2), which was amended by the first session law to include vapor products. That amendment was unchanged by the second session law, and so continues to apply—arguably preventing inmates from possessing even properly obtained vapor products. At a minimum, I suspect the legislature intends for it to be a crime for a jail inmate to possess contraband vapor products (those obtained through sources other than the jail itself). Perhaps the scope of any exception to the possession prohibition could be clarified in the future. In the meantime, I doubt as a practical matter that a jail would charge (criminally, I mean) an inmate for possessing the e-cig it sold to him. And if it did, the inmate might have some sort of entrapment by estoppel defense.
So where does that leave us? Let me try to summarize:
- As of July 1, 2014, prison inmates, employees and visitors may not use or possess vapor products on the premises of a state prison facility, except for authorized religious purposes. Those who do are subject to administrative sanctions.
- As of December 1, 2014, it is a Class 1 misdemeanor for any person to give or sell a vapor product to a jail or prison inmate, or to a non-inmate for delivery to an inmate, except that the jail may give or sell vapor products to jails inmates. There is no similar exception for state prison inmates.
- As of December 1, 2014, it appears to be a Class 1 misdemeanor for a jail inmate to possess a vapor product, other than for authorized religious purposes, although that prohibition might not apply to vapor products provided by the jail itself.
Whew. That’s complicated. I don’t smoke or use vapor products, but if I did, I think I might go have one now.
Last week I wrote about how jails sometimes seek to limit medical expenses by having an inmate released. Today’s post is about the related issue of “refusing” an inmate on the front end when it appears he or she is in need of immediate medical attention. Common scenarios include a person who is injured in the course of committing a crime, or an impaired driver who is very drunk. Can the sheriff’s office refuse to accept such a person into the jail? And if so, does that refusal relieve the county of liability for the costs of the person’s care?
Under G.S. 15-126, “every sheriff or jailer to whose jail any person shall be committed by any court or magistrate of competent jurisdiction shall receive such prisoner and give a receipt for him, and be bound for his safekeeping as prescribed by law.” That law indicates that the jail has no choice but to receive a person—even a very sick, very intoxicated, or seriously injured person—once a judicial official has committed him or her to the sheriff’s custody. (Of course, if the person is in bad enough shape, the initial appearance should be delayed. G.S. 15A-511(a)(3) (allowing the initial appearance to be delayed for a reasonable time if a defendant is unruly, unconscious, or grossly intoxicated).)
G.S. 15-126 does not, however, require the sheriff to take every inmate with a signed release order into the jail itself. A sheriff or jail administrator might reasonably have a standing order requiring immediate diversion of would-be inmates with, among other things, certain types of injuries, or a blood alcohol concentration above a particular limit. Such rules are permissible and often sensible, but they generally do not operate to relieve the county of liability for the costs of emergency medical care under G.S. 153A-224(b) once a judicial official has placed the defendant in the sheriff’s legal custody.
What about defendants who haven’t yet appeared before a judicial official? Is the county responsible for the costs of their care? The answer appears to be sometimes, depending on the circumstances of the person’s arrest.
The leading case in this area is Spicer v. Williamson, 191 N.C. 487 (1926). In Spicer, a sheriff’s deputy shot and wounded a man who had resisted his arrest for a robbery. Recognizing that the man was in bad shape, the deputy took him directly to the hospital for surgery. The hospital sued the county for the costs of care. The county argued that it was not liable because the man was not actually confined in the jail. The supreme court disagreed, extending the duty of the county to pay for a person in the custody of the sheriff who is unable, because the of the defendant’s condition, to take him at once to the jail.
The court of appeals applied Spicer in Annie Penn Memorial Hospital, Inc. v. Caswell County, 72 N.C. App. 197 (1984). In Annie Penn, a sheriff’s deputy shot a man who pointed a shotgun at him. The deputy handcuffed the man and took him directly to the hospital for emergency medical treatment. As in Spicer, the hospital sued the county for the costs of the defendant’s care. The county argued that the defendant was not in custody when the care was provided. The court of appeals disagreed, noting that deputies escorted the man into the emergency room, and then asked hospital staff to notify them when the man was ready to be discharged so they could pick him up. The man was therefore in county custody, and the county was obligated under Spicer to pay for the man’s care even though he never actually entered the jail.
Contrast Spicer and Annie Penn with Craven County Hospital Corp. v. Lenoir County, 75 N.C. App. 453 (1985). In Craven County Hospital, a habitual inebriate was picked up by city policy officers under authority of the public intoxication law (then in Chapter 122, now in G.S. 122C-303). They planned to take him to the jail to sober up, but as they helped him from the car he fell and was knocked unconscious. He underwent neurosurgery and eventually died 10 days later. The hospital sued the city, the county, and the sheriff for the costs of the man’s care. The court of appeals determined that the county and the sheriff were not liable because the man never actually came into the custody of any county officer. The court likewise concluded that the city was not liable for the costs of the man’s care—not because the man was not in the custody of the transporting officers, but rather because the General Statutes impose no duty upon cities to pay for medical services provided to persons in police custody. The court recognized the “apparent gap” in the law with respect to a “detainee in medical treatment who happens to be in the custody of city police officers rather than a sheriff or his deputy,” but concluded that “the gap must be filled, if at all, by the General Assembly.”
Some jails do a medical screen of arrestees when they arrive at the jail, before they process before a magistrate. If certain medical issues are identified (serious injury, high BAC, etc.), the jail staff ask the arresting officer to take the person to receive medical attention. Assuming any resultant delay in a person’s initial appearance is not unnecessary in light of the person’s condition, that practice seems a sensible way to get a person the care he or she may need. Ultimately, however, considering the cases discussed above, it appears that the county is still on the hook for the costs of care if the arresting officer was a sheriff’s deputy, but not liable if a municipal officer made the arrest.