by Linda Sillitoe
The Prison Medical Ward the ACLU Built
[p.191]As Michele Parish moved away from Utah, she presented attorneys Cullen Battle and Kathleen Switzer with a bit of memorabilia—a framed cartoon by Pat Bagley labeled “ACLU Medical Lawsuit.” It depicted corrections chief Gary DeLand pouring himself a dose of Maalox—the prison’s prescription for an inmate’s bleeding ulcer. The inmate died vomiting blood in his cell.
A hearty anti-acid might well have been prescribed for those on all sides of the issue. The medical lawsuit against the Utah State Penitentiary never went to trial yet was battled down to the wording of the last stipulated phrase and the awarding of the last contested penny. Corrections issues flared elsewhere as the state’s youthful offenders drew increasingly into armed street gangs and, once locked up, rattled the bars of an overcrowded and understaffed system.
The law enforcement system showed itself still struggling with endemic racial bias, including the “profiling” of suspected drug runners partly by race or ethnicity in performing random searches and seizures. In 1994 profiling complaints and racial issues would prompt the Utah ACLU to sue several eminent law enforcement agencies—the Utah Highway Patrol, the Federal Bureau of investigation, and the Bureau of Indian Affairs police. The questions involved had changed with the times and the personalities involved but remained consistent made-for-[p.192]the-ACLU issues nonetheless.
The outcome of the conflict between the affiliate and the Department of Corrections revealed much about the litigants, their philosophies, and the issues involved. The most prominent case, Henry v. DeLand, represented a three-year struggle to improve the prison’s medical, dental, and mental health services. Filed in December 1989, certified in April 1990, and negotiated in spring 1993, the suit did not reach its conclusion until attorney fees finally were awarded early in 1994.
Behind every lawsuit initiated by the affiliate before Kate Kendell became staff lawyer in 1993, and to some degree afterward, volunteer or cooperating attorneys and their law firms offered assistance. While the executive director fronted the issues in the media, the lawyers researched, strategized, filed motions, attended hearings, and commented circumspectly outside court, if at all.
When Cullen Battle of Fabian & Clendenin had agreed to shoulder the medical lawsuit, he’d considered it a lawyer’s duty. Before the case reached resolution, he would muse, both the times and the national climate had changed. The legal profession became more business-driven and less idealistic, he believed, accruing a general disaffection toward traditional liberal values.
During the years consumed by the suit, Battle learned that association with the American Civil liberties Union had its discomforts. If the union only fought for prisoners’ medical rights, that would present no problem, he explained. But when they took on issues like abortion, litigating any ACLU lawsuit produced tension.
“With abortion,” Battle said later, “people on both sides have sincere beliefs in human rights. With the prison issue, the other side is morally bankrupt. They can rationalize about money and prisoners and school kids, but there is no real moral ground.”
Particularly awkward was his law firm’s involvement at the time the ACLU ad ran in the New York Times attacking the1991 Criminal Abortion Act. “Being associated with the ACLU on anything put us in a terrible light and had an impact on us,” Battle recalled. “Michele would say what she liked, and the press would serve it up.”
Switzer agreed. “In most people’s minds, tactics like the newspaper ad didn’t comport with the idea of a higher calling,” she said. “It made [p.193]what we were doing suspecting.”
The attorneys were pleased, however, with the eventual media coverage of their successful chief plaintiff, Sandra Henry. In one example, a photograph of the diminutive AIDS patient appeared on the Salt Lake Tribune’s front page above the headline “Ex-Inmate with AIDS Wins Her Battle to Upgrade Health Care at Utah Prison.” In the article Henry, who died in 1996, was described as “a savior to inmates at the Utah State Prison.” The article continued:
On Friday, she won a hard-fought lawsuit in federal court that improves health care at the prison, where she was housed from September 1988 to September 1990. “This is a woman who put up with harassment and threats because she filed a lawsuit while she was in prison,” said her attorney.
…Henry served time for receiving stolen property and possessing heroin. When she entered the prison, her disease was well along but prison doctors denied her therapy. She got it—eventually.
When released from the hospital after a downturn in her health, Henry told the newspaper, “Experts said the earlier the AZT treatments, the better chance of staying healthy longer. As it was, the prison denied inmates the drug until they had at least one bout of pneumonia.” The newspaper noted the improvement in mental health standards at the penitentiary, then added: “On Friday, prison officials also agreed to provide better medical care. More doctors, nurses and emergency medical technicians will be at the prison round the clock.”
Battle and Switzer were currently engaged not with public opinion but with the difficulties involved in documenting the new prison policies in agreement with the state. The process was especially arduous due to DeLand’s appeal based on an administrative rule he believed had relevance. DeLand later admitted that he became “very rigid” on the wording so as not to lose ground. Finally Battle and Switzer told attorney general Paul Van Dam they simply would not sign the documents as written. Gradually acceptable language was hammered out.
Even as the attorneys argued over wording and meaning, conditions continued to change at the prison. The first improvement, as both sides would agree, came earlier with a staff physician, Dr. Robert Jones, [p.194]whom DeLand described as “proof there is a God.” Under the court’s oversight, a quality assurance program developed, the “by-the-book” approach that had been lacking. A computer program began charting each inmate’s medical condition, tracking health problems, monitoring care, and ensuring a certain level of competence. In addition, the new mental health facility began operating, the pharmacy improved, the infirmary was remodeled, and more medical staff hired.
As the policies altered, both corrections and the Utah ACLU had undergone changes in leadership. Not only did Department of Corrections executive director Lane McCotter’s style differ from DeLand’s, but now Nick Morgan served as inspector general and Kim Thompson directed operations, dividing the turf Scott McAlister had once dominated. The ACLU found both to be reasonable. Kendell would say, “Our relationship is adversarial—that’s our job—but not at all hostile.”
By the summer of 1993 Kendell was accustomed to visiting the penitentiary approximately every six weeks. Prompting only “mild disparagement” from the staff, she liked to refer to the new facility in the Wasatch building as the “mental health unit the ACLU built.” With thirty-three beds, the ward usually operated at capacity under the direction of Evan Shapiro, supervising psychologist.
The mental health stipulation detailed each procedure, involving screening, staffing, crisis intervention, and inpatient services. Staff training and “structured, out-of-cell daily activity” were specified. As the mental health unit approached compliance with the court stipulation, Kendell expressed optimism. “Eventually, it will be adequate.”
Nevertheless throughout 1993 Kendell wrote hundreds of letters for individual inmates and followed through to see that they received help. During the first quarter of 1994, the Utah affiliate would process 236 complaints, more than half of them involving prison issues. This represented an increase in complaints over the previous year.
There was a difference, however. Her correspondence and telephone calls to the prison appeared to be unimpeded. If a complaint sounded urgent, she would call Dr. Jones instead of writing. Either way, results were forthcoming. “The medical department has been adequately responsive,” Kendell said with an attorney’s caution.
She placed her experience with the penitentiary into a larger context [p.195]as she amassed statistics while preparing to teach a university class on prisoners’ rights. She found that the U.S. incarceration rate ranked higher than any in the world including Russia or South Africa, she said. Also, 30 percent of the population in state prisons and 50 percent in federal prisons had been convicted of drug crimes that would not have meant incarceration a decade earlier.
When Carol Gnade met with Kim Thompson to review the new mental health hospital, she found their discussion disturbingly nostalgic. Gnade had left social work twenty years earlier when, as drug therapies became available, mental hospitals had decided to deinstitutionalize their patients. Social workers were supposed to watch over them, supposedly at a ratio of one social worker per ten patients, a number that, in reality, rose to around one worker to 200 clients, she said.
“The prison is glad we brought suit, or they never would have gotten the mental hospital,” she said. “It was just interesting to me that twenty years ago they let everyone out of the hospitals. Now they’re building mental hospitals behind prison doors.”
If certain prison officials and staff felt relief at the success of the Lawsuit—as Gnade, and earlier Parish and Christopher Smart, had reason to believe—that welcoming found no expression in the legal dispute. The opposite was true. The final word on who had won the lawsuit rested with U.S. district judge Bruce Jenkins when the state appealed the awarding of attorneys’ fees.
In the appeal DeLand claimed the ACLU should not be awarded attorneys fees on the basis that no changes in medical care had resulted from the lawsuit. Essentially, he claimed, he had been directing the medical reforms when the ACLU, in a show of bad faith, had brought suit. Simply put, his tactic held true to his approach throughout the conflict and could be summarized in three words: blame Michele Parish.
Regarding the medical and dental complaints, DeLand described for the judge a cordial relationship with Robyn Blumner and the evaluations by prison expert Bonnie Norman. “Prior to the evaluation, I agreed to accept Norman’s findings and recommendations in their entirety, and Blumner was fully satisfied with this solution,” he wrote. “In addition, I asked Norman to meet with representatives of the ACLU and Legal Center for People with Disabilities prior to her on-site evalu-[p.196]ation in order to more specifically address each of their concern.…”
DeLand continued, “In response to Norman’s report, I organized a task force to develop a master plan to implement the recommendations. The Medical Master Plan has served as the basis for all of the improvements in the medical system since its adoption.”
This Medical Master Plan was not referred to or described in any of DeLand’s correspondence with the ACLU during the relevant years. Now, however, DeLand wrote that the plan had been adopted in December 1988 and “followed consistently” ever since.
“Blumner and I worked well together, and there was never any indication from the ACLU that they were no longer willing to work with the department to improve prison facilities,” he continued. “However, the ACLU, under the direction of Michele Parish, filed suit in December of 1989. The suit came as a complete surprise in light of the progress that the department had made, and was continuing to make.…” DeLand maintained that the prison did not have a mental health plan or unit simply because the Department of Corrections was sued before a plan could be developed in concert with Norman.
“But there was not a damn thing they could force us to do we were not doing,” he commented later about the ACLU’s intervention. Early on, he related, he had called in an expert to analyze what the prison needed to do to provide mental health service and to recommend “a Chevrolet” plan “not a BMW” plan. He offered this Chevrolet to the other side, DeLand said, and they refused it. This action, he claimed, legitimized his Rule 68 argument that if you offer the other side an acceptable option, they cannot litigate harm beyond that point.
In supporting DeLand’s objection, assistant attorneys general Kirk M. Torgensen and Frank D. Mylar wrote that the ACLU lawsuit had been essentially frivolous because “well before plaintiff filed suit, defendants had begun to significantly upgrade the quality of medical services.” Rather than using the terms Chevrolet or Medical Master
Plan, the attorneys simply said DeLand had made offers “formalizing the improvements that defendants were already working on in an effort to eliminate costly litigation.” These offers “were significantly above constitutional requirements.…”
However, they continued, once the lawsuit reached settlement “and [p.197]without even discussing the issues of fees, plaintiff ran to the court with a two-inch-thick motion for fees.” Yet, they claimed, the plaintiff “cannot show that she helped remedy any constitutional deficiencies by bringing this suit and therefore, her request for fees must be denied.”
“We’re hard on trees,” Kate Kendell quipped, as the ACLU attorneys vigorously rebutted DeLand’s version with a response several inches thick. It detailed the lawsuit’s history, claiming it “demonstrates conclusively that this lawsuit was the chief cause of unprecedented reform of the prison health care system, and that plaintiff’s claims were anything but meritless.” Medical experts’ testimony in court hearings established “that serious deficiencies in health care have existed at the prison and have persisted well into this litigation.”
In addition, DeLand and his administration had admitted in their reports to the legislature that health care was inadequate and that improvements would be required as a result of the ACLU lawsuit. Based on this argument, corrections had received additional taxpayer dollars for reform.
“Finally, if plaintiff’s suit were truly ‘meritless’ and unsupported by even a ‘scintilla of evidence,’ defendants could have filed a motion for summary judgment and avoided liability altogether,” the brief continued. “Instead, defendants recognized the strength of plaintiff’s claims and came to the settlement table.”
In short, then, not only had the Department of Corrections agreed to settle out of court but had used the ACLU lawsuit to successfully demand funds from legislative committees. The ACLU lawsuit not only brought medical funding to corrections but required that the increase continue in the budget.
That constituted enormous change, the ACLU lawyers insisted. Formerly DeLand or any corrections director had enjoyed complete discretion as to how much money was spent on prison health care. The funds could be shifted to another part of the department budget or returned unused to the state, as DeLand had done. “As a direct result of this lawsuit, funding for prison health care increased dramatically, and the budget is no longer the director’s private ‘slush fund’ to manipulate at will.”
In response to DeLand’s contention that he and Blumner had a [p.198]“gentlemen’s agreement” which he kept faithfully, Blumner filed her own affidavit. She stated:
It was my understanding that DeLand understood that if the deficiencies which existed were not timely remedied the ACLU would commence litigation in order to force improvement of the medical and mental health care…[and] that I took the step of directing a draft complaint be prepared in the event litigation was necessary. At the time of my departure, it was my perception that progress toward improving the deficiencies in the medical and mental health care at the prison had stagnated.
Until the day of the judge’s decision, both Bangerter and DeLand assumed a victory on the state’s side of the tally sheet. The former governor said early in 1994, “The ACLU does some very good things, they protect some things.” He summarized with a smile, ‘‘I’m not mad at Michele Parish and the ACLU. I just hope they’re not mad at us because we beat them most of the time.” With a chuckle, he amended, “Actually they beat us on two out of three—on abortion and prayer—but we won the most on the prison.”
At that point, Bangerter did not know of Jenkins’s thirty-page decision which would award more than $300,000 in taxpayers’ money to the ACLU. The affiliate had prevailed without doubt, the judge wrote. “The court finds that the plaintiff’s lawsuit was a catalyst in achieving prison health care reform and increases in legislative funding necessary to implement that reform.”
Jenkins found DeLand’s application of Rule 68 inappropriate to a stipulated lawsuit. Even if the rule applied, the judge said, the plaintiff had received far more relief due to the lawsuit than would have come without it.
The financial breakdown awarded Fabian & Clendenin $228,697 in fees and $3,058.49 for expenses, the Legal Center for People with Disabilities $27,944.40 in fees, and the ACLU National Prison Project $17,704.50 in attorney fees and $2,719.56 for expenses. Once the accounts were settled, the Utah ACLU found itself with more than $96,000 in a money market account while it deliberated various investment plans.
[p.199]DeLand had a contingency appeal in mind in case Jenkins ruled against the state, but the attorney general’s office wasn’t interested in pursuing it. For the moment, at least, the conflict had come to a halt.
“It was a very fair award,” Switzer said. “We got nearly everything we asked for.”
From her office in Washington, D.C., Parish expressed satisfaction. Her experience had shown, she said, that awarding attorney fees was important when a state department approached the legislature for funding. The cost told the legislators that the taxpayers had not only paid for improvements but they would also pay the attorneys who won the reform. When the attorneys donated those fees to the ACLU, they ensured future battles on civil liberties issues.
“DeLand was sitting on a complex and beleaguered system,” Kendell commented. As she saw it, he had chosen to pour resources into security at the expense of medical care, rehabilitation, or mental health care, and then warred with the ACLU to defend his decision. “I think it’s disgraceful that he became legendary for his sniping match with Michele Parish. The department staffers and the media all still talk about it,” Kendell said. “Michele must have been effective to have a powerful department head spending his time arguing in public with the head of a public service agency.” Even with all the changes in leadership, policy, and issues, Kendell said, paranoia remained common among the inmates.
Early in her tenure as executive director, Gnade welcomed to her office representatives of an issue that had prompted the Utah affiliate’s organization. One March morning James and Tia Jones carried in their infant daughter and told Gnade of James’s recent incarceration in the Salt Lake County Jail. Walking home from his cousin’s December wedding reception, Jones had been stopped by police and arrested for public intoxication; however, he was actually held on suspicion of rape. While in jail for five weeks, Jones had lost his job, missed the birth of their daughter, and endured the stigma of a black prisoner accused of raping a white woman.
The rape victim did not identify Jones. In fact, she said he was not her assailant. Yet he remained incarcerated pending the results of a DNA [p.200]test, which finally freed him. By that time, the young family had to seek asylum in the homeless shelter. Not only had Jones been incarcerated unduly for more than a month, but the county attorney’s office had not erased the unfounded charge from his record, making it impossible for him to get another job.
While Gnade and Kendell discussed the legal side of the incident, Gnade took a shortcut and called the media. The Jones incarceration became an immediate story. “I still can’t believe it,” Jones told the Tribune. “It’s outrageous. It’s cruel. And what do I get? Sorry mister and that’s it? Look at me. Look at my wife and baby.”
The publicity brought immediate results as calls poured into the homeless shelter with offers of jobs, money, and housing. In a follow-up story, Jones told the newspaper, “I don’t want all the attention, really. I just want to get back on my feet and support my family.”
While the legal system tended to discriminate based on race and income, the times had changed in one respect. In 1958 when the Utah ACLU received its charter, Jones’s experience would not have made the newspaper, let alone spark community support.
Several months later the Tribune placed Jones’s experience in a wider context in a front-page article beginning: “For most people charged with a serious crime, getting out of jail may all come down to cash.” Jones, who had worked as a dishwasher, was cited as an example of a prisoner facing too grave a charge with too little backing to win bail. “There are not too many bondsmen in town that will post bond for a poor person,” the article quoted Salt Lake County attorney David Yocom.
Kendell’s comment followed: “This is an example of justice if you can afford it.… If people are well-to-do or have stature in the community, they will not serve time in jail.”
Jones’s incarceration was linked that summer to the first anniversary of the execution of an African American, convicted murderer William Andrews. Racial disparities in the judicial system highlighted the community uneasiness around the death penalty, particularly in the Andrews case since he had not fired the fatal shots. The shooter in the notorious Hi-Fi Shop torture murders in Ogden, Pierre Selby, had been executed several years earlier.
Now, using the injustice toward James Jones as a point of departure, [p.201]James Gillespie, head of the Ogden National Association for the Advancement of Colored People, drew comparisons with the execution the past summer. “There’s no way Andrews would have been executed if he was white. No way in the world. [Mormon forger and bomber Mark] Hofmann killed two people—in premeditated murder—and he’s not on death row.”
So strong had been the African-American community’s resistance to Andrews’s scheduled execution that the NAACP and other groups asked the ACLU to keep a low profile in the protest. Only when the cause became hopeless, Michele Parish said later, was the ACLU asked to make its presence known. Parish then called the National Capital Punishment Project and wrote to the governor, sorry the affiliate had not been more involved.
“They had me on the stand at the candlelight vigil the night before the execution,” she reminisced, “because I knew all the verses to ‘Amazing Grace.’” Parish understood the dynamic. Andrews had so much community support that the ACLU’s backing was not only less in demand but less desired. “We are the ones who deal with the most despised and rejected people.”
The issue of race emerged elsewhere. Two African Americans were arrested in Iron County because, as the arresting officer testified, they were black and had a California license plate and thus fit the profile for drug runners. In this instance drugs were found, reinforcing the profile’s stereotype.
“However,” Kendell said, “the Fourth Amendment works before the fact. The profiles are developed for a reason. A fair number of individuals, due to socio-economic dynamics in minority communities, are involved in drugs. The problem is that for every person who is guilty who is pulled over and subjected to an illegal search, dozens have their Fourth Amendment rights trampled over.”
She added, “The most objectionable thing about profiling is that it places people of color in the position of having diminished constitutional rights. Whites can presume their constitutional rights are okay; a person of color can’t.” When it came to the declared war on drugs, Kendell said, “I don’t care if we end up with more drugs on the highway If we still have a Fourth Amendment that means something. Maintaining [p.202]that is a more worthy goal.”
The ACLU found a plaintiff in Joe Soto, a Hispanic citizen repeatedly pulled over despite an immaculate drug record. A complaint demanding a jury and filed June 11, 1993, stated that Soto, a resident of Salt Lake City, was “readily identifiable as Hispanic.” He alleged that he was stopped without justification seven times between June 1992 and March 1993 by Highway Patrol officers Paul G. Mangelson or Lance D. Bushnell, who were named in the complaint along with various John Does. Soto was stopped, the complaint alleged, because he fit a drug-smuggling profile developed by the Highway Patrol, prompting officers to detain drivers who were of minority descent; drove late model, luxury, or rented automobiles; and had out-of-state plates.
“These tactics are the product of an agreement…properly termed a conspiracy,” the complaint read, which “has the purpose of depriving persons of their right to equal protection or equal privileges and immunities under the laws, the right to be free from unreasonable searches and seizures, and the right to due process of law.” The Utah ACLU pursued the Soto case through a number of court hearings during the next several years.
In the meantime the Youth Corrections system seemed to teeter on the brink of an irreparable crisis. In visiting detention centers, Kendell found teens sleeping on the floor, sometimes beneath toilets, and doing without classes, programs, and counseling because the resources were too limited. Kendell attended regular meetings of a legislative detention committee hunting for solutions to the crisis. In June the ACLU filed a lawsuit but continued to work toward a solution.
Both the Salt Lake County Detention Facility and the Moweda Detention Center in Davis County consistently housed more teens than their allowed capacities. The lawsuit alleged that the Salt Lake center was over capacity during 76 percent of the year 1992, while the Moweda center was over capacity 36 percent of the same year.
Late in the summer of 1993, an escalation in gang violence claimed headlines and stirred the public. A fatal shooting of a teenager outside the Triad Center in downtown Salt Lake City, followed by the gunning down of a prime witness in the case, horrified the community. Salt Lake City mayor Deedee Corradini called for gun control and curfews. Police [p.203]chief Ruben Ortega agreed and proposed searching juveniles at the Utah State Fair and publishing the names of juveniles charged with violent crimes. Kendell cautioned against basing police procedures on race, age, or clothing.
Now that young offenders had managed to capture government attention, the ACLU put the lawsuit against the youth corrections system on hold. Kendell lobbied the governor’s office directly and continued to meet with juvenile corrections officials. In a letter dated September 23, 1993, she urged Governor Mike Leavitt to relieve the overcrowding and provide greater resources to juvenile court.
“I am convinced that simply locking more youth up is not the answer to the problem of juvenile crime,” she wrote. “Most juveniles respond to less severe sanction, such as probation, community service, or other work programs.” The programs would not work effectively, however, lacking another juvenile judge and more probation officers. She closed by thanking the governor for his efforts and indicated a willingness to meet with him or with his staff.
By October the Tribune reported that the youth corrections system was overwhelmed. “More than 290,000 children between the ages of ten and seventeen live in Utah,” the article stated. “Of those, more than half are ages fourteen to seventeen—the time when juveniles are most likely to have a brush with the law.”
Not only had the population risen, but so had the seriousness of the crimes committed. The 1990s saw more juveniles jailed for murder, aggravated assault, and other violent crimes. “Last year, juveniles in detention had an average of 10.3 convictions, according to a report to be released today,” the article continued.
While teenagers of all racial and ethnic backgrounds became involved in gangs, some gangs were identified by ethnicity, and minority youths, like adults, tended to fare poorly in the justice system. “The study also shows that Latino, American Indian, Asian and black juveniles are more likely to be locked up than their white counterparts,” the report read. ‘The findings mirror results from a 1991 report, showing no improvements have been made.” Minority juveniles spent more time behind bars, the Tribune article continued.
“‘The problem may be a combination of things,’ said John Dewitt [p.204]of the state Division of Youth Corrections. ‘Minority families may not have the resources to send their children to treatment programs or it may be difficult to get them to come to court.’”
The article noted how few minority staffers there were in the juvenile justice system. Whites made up more than 80 percent of the detention staff. Latinos represented 7.4 percent and African Americans 4.7 percent.
The severity and complexity of the problems might have given the 1994 legislature much to discuss. Yet the proposed bills dithered between outlawing spray paint and markers and requiring students in public schools to wear uniforms. Despite a great deal of rhetoric, Kendell concluded that little would be accomplished. The lawmakers seemed unable to come to grips with the scope and urgency of the situation. Following a riot at the Salt Lake County Youth Detention Center, Kendell said the affiliate would pursue its lawsuit.
She wrote Leavitt that providing more beds for youths in detention facilities was critical, yet must be backed by “other meaningful and fully funded alternatives” as well. For one thing, “lightweight” and “hard core” offenders ought to be separated so that a youth who played hookey from school and a youth arrested for aggravated assault would not be housed together. In fact, those committing minor offenses would be far better served by other alternatives.
“Intensive parole and supervision programs, such as exist in other states, must be implemented in Utah if we are to seriously deal with our juvenile crime problem,” she wrote. Work camps, home confinement with supervision, and reporting centers were all less expensive alternatives “than the bricks and mortar required to provide more bed space. Moreover, these alternatives often succeed where incarceration does not.”
While concern about gangs focused on northern Utah, in Washington County, in the southwestern corner of the state, the ACLU forced the county jail to accommodate female inmates. “I sent three letters to county officials and I personally visited the jail, and everyone agreed that the system needed to be rectified,” Kendell said. “But it was clear to me that nothing was going to get done unless we filed the suit.”
The county reluctantly consented to overhaul and enlarge a room to [p.205]accommodate up to eight women. This meant installing windows, showers, toilets, and other facilities, scheduling regular visitation hours and rules, notifying the ACLU if a mass arrest occurred involving more than eight women, and maintaining a ratio of one jail guard for every six inmates. Interestingly, in this and other cases when jail standards were written or revised, the work was contracted to former corrections chief Gary DeLand.
The Salt Lake Tribune featured another law enforcement incident involving race that would become the basis of an ACLU lawsuit in 1994, written by a frequent ACLU ally, para-legal Todd Gabler. Beneath a large color photograph of Rosanna Valdez and her son Raymond, datelined LaPoint, the article by Michael Phillips began:
From her kitchen window, Rosanna Valdez saw a man outside squat on his haunches and scurry across her lawn. Another man, a police officer from the Bureau of Indian Affairs, strode to the front door and cocked his shotgun.
“I caught sight of these guys and thought I was under attack,” says Valdez, a Ute tribe member who lives on the Uintah-Ouray Reservation in northeastern Utah. “I was right, only it turns out these guys were police.”
The officers were looking for her son, Raymond Valdez, who they said was wanted on warrants. Rosanna told them her son did not live with her and that she had not seen him for weeks. She asked to see the search warrant. No warrant appeared, Valdez alleged. According to the Tribune:
“I told him I had rights, and he started screaming at me. He threatened to kick the door down and arrest me for interfering.” Valdez, forty-one, looked up at the BIA officer. “Can he do this without a search warrant?” she asked.
“He can do anything he wants,” she claims the officer said. “He’s the FBI.”
Gnade’s interest in this incident had been keen from the start. She contacted ACLU pundit Steven Pevar, a University of Denver law [p.206]professor and author of The Rights of Indians and Tribes, who agreed to assist the Utah affiliate. The newspaper quoted Pevar saying, “It’s almost like a legal no-man’s land on the reservations. Police out there can do what they damned well please.”
Several weeks after the search, Raymond Valdez surrendered to the BIA at his mother’s insistence and was later freed on bond. He faced state charges of burglarizing a Salt Lake County home, a second-degree felony, and with third-degree felony theft.
In spring 1994, about five months following the incident, the Utah ACLU filed suit against FBI agent Samuel McPheters, BIA officer Greg Littlewhiteman, and several John Doe defendants. According to the complaint, the officers had threatened Rosanna Valdez, brandished weapons, questioned her house guests, ordered her outside her home where they “yelled at plaintiff’ and threatened to shoot her son on sight. Two hours later they returned to repeat the threats and search further. They said they would harass her neighbors, as well, in order to embarrass her.
The lawsuit alleged violation of Rosanna Valdez’s Fourth Amendment rights against unreasonable search and her Fifth Amendment rights guaranteeing due process of law. The lawsuit claimed that Valdez had suffered emotional distress and fear for her own physical safety. “Defendants violated plaintiff’s rights intentionally and with malice,” the complaint stated. “Moreover, defendants knew or should have known that they did not have the right to search [her]…residence without a warrant.” The suit requested a judgment against the FBI and BIA agents for compensatory damages of $100,000, punitive damages of $50,000 each, as well as attorney and court costs.
All these issues involving race and law enforcement may have been harbingers for a proliferation of complaints alleging prejudice. By June 1994 an increasing spate of “horror stories” reached the ACLU office involving Spanish-speaking immigration into Utah. Immigration was on the rise and was a national concern, particularly in the southeast and southwest where it pressured social systems including law enforcement. Yet the problems came as something of a shock in Utah, as did the prejudices revealed with them.
In one instance a prominent Hispanic Salt Lake City resident was [p.207]asked for her green card, a permit issued by the Immigration and Naturalization Service, when she visited her father in the hospital. The ACLU tipped off the media, and, following publicity, the employee was fired. Similar complaints continued to flow into the affiliate office. A dark-complected housekeeper took her employers’ toddler to a hospital for stitches and was refused service. Hispanic motorists, stopped for alleged traffic infractions, were asked for their green cards. Green cards were confiscated by police in parks, apparently just to create difficulty. Such incidents were not entirely new in the diverse Hispanic community, but the complaints were new to Gnade and she intended to seek remedies.
Another police profiling incident, not involving race, also came to light. A twenty-one-year-old Bountiful resident was stopped one September evening by the Utah Highway Patrol as he traveled past Farmington on Interstate 15. Robert David Fitches’s young age, his shoulder- length blond hair, and his older-model vehicle, the ensuing lawsuit claimed, “placed him within the identifiable drug courier profile employed by the defendants [the Utah Highway Patrol].”
Fitches and a friend, Tony Morley, were stopped by Officer Terry Mercer, purportedly for a burned out headlight. After a routine identification check, however, the officer told Fitches that he smelled marijuana smoke. Fitches and his friend denied possessing or smoking marijuana but were ordered out of the car. Since Morley required a wheelchair, the officer allowed him to remain in the car while he tested Fitches for impaired faculties. The young man passed the tests.
Gradually a veritable crowd of law enforcers gathered—up to ten John Does. The officers removed Morley from the vehicle and placed him in his wheelchair. They allegedly called Fitches a liar when he again denied having marijuana, and they searched his friend and the car without consent. A canine unit was called. The dogs found no drugs. The final insult occurred, the lawsuit alleged, when Mercer required Fitches to lower his trousers and place his hands on top of the car. “Defendant Mercer then probed Fitches’ s genitals with his gloved hands through his underwear,” the complaint continued. “This incident took place while Fitches was standing on the side of the road in view of all officers gathered, traffic, and his friend.
[p.208]“The officers at no time during any of these searches located any controlled substances or any other evidence of illegal activity.” After three and one-half hours of threats, searches, and insults, the young men were allowed to leave. Fitches was given a warning ticket for the burned-out headlight.
The lawsuit claimed that the Utah Highway Patrol had violated Fitches’s Fourth, Fifth, and Fourteenth Amendment rights, as well as his right to privacy. It requested not less than $150,000 in damages, claiming that the incident resulted in “physical and mental suffering, distress, degradation, humiliation, anguish, loss of dignity, … and loss of freedom, which resulted from the substantial length of his detention.” The ACLU lost the case in court after the defendants entered a marijuana stem into evidence.
These lawsuits lent considerable energy to the ACLU office. Many of the judicial issues that prompted the organization of the Utah affiliate clearly remained at the forefront forty years later. Progress in protecting defendants’ and prisoners’ rights was apparent within the legal system and documented in court records. Still, the right of ordinary citizens to be safe from unlawful intrusion or unjust accusation in their homes, in businesses, and on the highways, remained a cause that the ACLU enthusiastically championed.
In addition, both the rise in teen violence and in drug-related crimes burgeoned within the already stressed corrections system. The challenge of preserving First Amendment rights within a society beleaguered by violence promised to keep law enforcement and the ACLU busy in future years.