NJ Inmate Indicted for Attempting To Beat Female Corrections Officer To Death

As reported on NJ.Com, a man serving a 30-year prison sentence for robbery and kidnapping now faces accusations he tried to beat a female corrections officer to death in February.
Fuquan Alexander, 29, was indicted last week by a Mercer County grand jury on charges of first-degree attempted murder and first-degree aggravated assault. 
Alexander was locked up at New Jersey State Prison in Trenton when, on Feb. 1, he allegedly attacked senior corrections officer Elegia Then, wounding her so severely she was hospitalized for weeks with brain damage and still has not been able to return to work.
Then said she was letting inmates out of their cells to shower that Saturday afternoon when she was attacked in the prison's 2 Right Housing Unit, according to Lance Lopez Sr., the president of Policemen's Benevolent Association Local 105.
Then's partner was working on another floor at the time of the assault, Lopez said. A preliminary investigation suggests it was another inmate who pressed the riot alarm and summoned other officers, he said.
Then was initially taken to Robert Wood Johnson University Hospital in Hamilton before being transferred to the hospital's New Brunswick location. She was treated for cuts to her cheek and eyebrow, bruises to her nose and right eye, and pain on her upper lip and the back of her head. She initially seemed okay, but her cognitive skills began to deteriorate as hours and days went on, Lopez said.
Alexander was transferred out of the prison after the attack, apparently to ensure his own safety, and is now housed at Northern State Prison in Newark, according to Department of Corrections records. He was convicted in 2010 on a slew of charges stemming from a February 2008 carjacking and kidnapping in Essex County.

Booker Calls To End Private Prisons; Draws Ire Of DiVincenzo


As reported by nj.com, Newark Mayor Cory Booker’s call to end private prisons has drawn the ire of one of his staunchest and most powerful political allies: Essex County Executive Joe DiVincenzo. In a far reaching proposal to reform America’s prison system, Booker had harsh words for the privately owned prison industry saying it created a disincentive to reforming offenders and reducing recidivism.

Booker, the Democratic nominee to replace the late U.S. Sen. Frank Lautenberg, laid out the policy as broader scheme to fix America’s prison system. “I am fundamentally against private prisons,” he said. “There’s a profit motive to warehouse human beings. Think about what we’re paying people for…there’s a perversion when we get to bondage and holding human beings.”

DiVincenzo fired back, saying Booker’s statement was “shortsighted and inaccurate.” “Cory is the best candidate for U.S. Senate, but in this issue we disagree,” he said. DiVincenzo has a longstanding relationship with Community Education Centers, a for-profit prison company that has been a significant revenue generator for the county.

The county’s use of private prisons came under scrutiny in 2011 when a report alleged cronyism and pay-to-play violations stemming from donations to DiVincenzo made by John Clancy, Community Education Centers’ CEO. William Palatucci, a former lawyer for CEC, is also a close friend of Gov. Chris Christie.

DiVincenzo said private prisons have yielded positive results in Essex County. “For many years, we have partnered with a private detention center to provide inmates who meet certain criteria with drug and alcohol treatment, as well as life skills training,” he said. “This proactive approach has proven results in helping our inmates get their lives back in order and reducing recidivism among those being incarcerated at the Essex County Correctional Facility.”

Lawmaker Suggests Police Internal Affairs Functions Be Transferred To AG's Office


As reported by nj.com, the internal affairs functions of every law enforcement agency in New Jersey would be transferred to the Attorney General’s Office under a bill proposed by an assemblyman, who contends politics and bias too often creep into investigations when police departments police themselves.

Assemblyman Peter Barnes III (D-Middlesex), the son of a retired FBI agent, said he has long considered such a measure but decided to move forward after a two-part Star-Ledger series on the troubled Edison Police Department. Part of the newspaper’s series dealt with the internal affairs unit. Barnes, a former councilman, said that when police officers investigate colleagues, they can be too easily swayed by preconceptions about fellow cops.

“When you have officers investigating their own, it can lead to two divergent problems,” Barnes said. “You can have officers whitewashing legitimate claims because of friendships and relationships that develop. You can also have retaliatory-type claims. There might be a grudge or people vying for promotions, and one of them is in IA. I’ve never felt that was a good idea.”

The measure, which Barnes said he will introduce next month, calls for the creation of a new unit within the Attorney General’s Office and the hiring of investigators to staff it. The assemblyman said he knows the proposal will be controversial and, initially, costly. But, he contends that by centralizing IA functions, local and county internal affairs officers would be free to work in other areas of their departments, bolstering public safety. Most important, he said, it would strengthen the integrity of the internal affairs process, insulating it from intimidation or coercion.

Law enforcement officials called Barnes’ idea interesting, but said it would be very difficult to implement. New Jersey has some 30,000 police officers who work in more than 400 law enforcement agencies, said Raymond Hayducka, president of the New Jersey State Association of Chiefs of Police. That’s a lot of ground to cover for a single agency he said.

By statute, internal affairs investigations also have time constraints. Once investigators have developed enough information to substantiate a claim of wrongdoing, officers must be charged administratively within 45 days. Under those rules, the new unit could not afford a backlog of investigations, Hayducka said, adding he would still be interested in reviewing the measure.

Juveniles Entitled To Hearing Before Being Moved To State Prison


As reported by nj.com, unruly juveniles housed at any of the state’s facilities for young offenders are entitled to a hearing before they are transferred to a state prison, a state appeals court panel ruled yesterday. Teens under the jurisdiction of the state Juvenile Justice Commission need more than same-day notice of the transfer, the court said.

“The transfer of a juvenile to an adult prison significantly changes the focus of the incarceration away from rehabilitation and toward security and punishment. For those reasons, we conclude that there must be a sufficient level of procedural due process to protect the juvenile’s interests,” Judge Alexander Waugh Jr. wrote for the three-member panel. The decision reverses the November 4, 2011 transfer of a Cumberland County resident, identified fictitiously in the 28-page decision as Jones, to South Woods State Prison in Bridgeton and requires Juvenile Justice Commission staff to give him a hearing for a chance to contest the transfer.

A juvenile when he committed his crimes, Jones was 18 when he was sent first to a JJC facility in Yardville in January 2011 and then to a medium-security facility in Bordentown where he had several disciplinary infractions, including assaulting staff. Without his knowledge, JJC staff decided to transfer him to state prison, as allowed by law. But the court noted he was not notified of the review, the JJC’s recommendation and approval for transfer or the Department of Corrections’ approval to accept him. On the day of the transfer, he was not permitted to call his mother, who was not notified of his relocation for several days. The decision, which also included Judges Mary Catherine Cuff and Marie Lihotz, noted neither his attorney nor the family court judge who sentenced him to up to four years in a juvenile facility was notified.

The state’s Juvenile Justice Code, which took effect in 1983, was intended to involve family more in a juvenile’s case and use discipline not as harsh or rigid as prison for juveniles with less serious offenses.

NJ Attorney General Blocks Public Knowledge Of State Police Overtime Pay


As reported by nj.com, in what some advocates of open government call an unprecedented overreach, Attorney General Paula Dow has blocked the public from knowing how much overtime State Police troopers and other state law enforcement officials earn. Dow’s rule, which took effect this month, is part of a larger effort by the Attorney General to make confidential any records that “may reveal or lead to information that may reveal” an officer’s assignment.

The measure applies to the State Police and any other law enforcement officers that work under the Department of Law and Public Safety, but not local police departments, said Leland Moore, a spokesman for Dow. But open government advocates said the move by Dow restricts basic financial information, and that the taxpayers of New Jersey have a right to track public spending, including overtime. “Public employees, including law enforcement, have never liked the public knowing how much they make,” said Ron Miskoff of the New Jersey Foundation for Open Government. “But the public is paying the freight and I don’t see how knowing someone’s overtime is going to put anyone in danger.”

State records show that troopers earned $25.5 million in overtime last year, and as of September they made $15.7 million. Topping the list was Sergeant Robert Galik, assigned to Turnpike duty, who earned $63,221 in overtime last year. He had made $50,685 through the first nine months of this year, the second highest amount among troopers.

The State Treasury currently makes payroll information available for all state employees, including police, through a website created under Governor Chris Christie’s open government initiative. The website, yourmoney.nj.gov, billed as Christie’s “Transparency Center,” is updated every three months and is intended to help “taxpayers better understand public finances” and to “make government more accountable.” Moore said the Trasury will comply with Dow’s new rule and no longer post overtime information for police under the Department of Law and Public Safety.

Under the rules, total overtime figures for the department and its divisions will still be available. Paul Loriquet, a spokesman for Dow, said the rule reflected the long-standing position of the Attorney General’s Office. The Department of Corrections said there is no rule like the one imposed by the Attorney General to block overtime data for correctional officers.

Dow’s rule regarding overtime was enacted as part of several measures to make more records confidential, including those that detail background investigations or evaluations for job applicants and those concerning employee discipline, discharges or promotions. Many of the rules, other than the overtime provision, are similar to restrictions on public records under the state open records act. But Miskoff said they went too far in curtailing public access.

Former NJDOC Official Pleads Not Guilty to Bribery, Attempted Extortion Charges


As reported by nj.com, former Department of Corrections’ official Lydell Sherrer pleaded not guilty to charges of bribery and attempted extortion today in federal court. Sherrer is accused of taking bribes from corrections employees he supervised while serving as assistant commissioner. 

Federal authorities said he offered jobs, transfers and help with a lawsuit against the Department. He sought $52,500 from five current and former employees and received $19,000, according to the indictment released June 9.

Assistant U.S. Attorney Matthew Skahill said the prosecution will present recordings of meetings and phone calls, as well as bank records. He also said the case against Sherrer could still grow. “We’re still investigating any credible leads,” he said.

Lisa Van Hoeck, a federal public defender, is representing Sherrer. No trial date has been set.

Report: NJDOC Too Lenient On Privately Run Halfway Houses


As reported by nj.com, New Jersey pumps nearly $65 million a year into a network of privately run halfway houses, but the system is rife with problems, according to a state comptroller report released yesterday. Even when contracts are violated, the state has failed to crack down on security lapses, the report said. Worst of all, it’s unclear whether the programs are actually achieving their chief goal: reducing the number of inmates committing new crimes by preparing them for life outside prison.

Comptroller Matthew Boxer said the state “cannot simply cut these halfway houses a check and hope for the best.” “As a state we have done a poor job of monitoring the program and have made no real attempt to find out what taxpayers are getting for their money,” he said.

The Department of Corrections acknowledged oversight needs to be improved, but said many problems identified in the report have been addressed in new contracts signed last year. However, Corrections spokeswoman Deidre Fedkenheuer would not say whether halfway houses have successfully reduced recidivism.   

Corrections is responsible for overseeing the state’s contracts with eight nonprofits that run 23 halfway houses housing an average of 2,720 residents each day. Low-security inmates can be sent to halfway houses when they are within two years of parole eligibility, giving them access to substance abuse treatment and work release programs. But the comptroller’s report said halfway houses, which sometimes lack perimeter fences, suffer from safety problems. Residents were able to simply walk out the door, and some put dummies in their beds as decoys. Last year, 298 residents walked away from halfway houses and 13 remain missing, the state said.

Problems extended to the contracts themselves as well. Miscalculations by nonprofits led to six years of overbilling that totaled $600,000, the report said. Fedkenheuer said the Department has fixed the errors in the new contracts and is examining whether it can recoup the extra money already paid.

New Jersey has increasingly turned to halfway houses to slow the revolving door of former inmates committing new crimes and returning to prison. Almost 60 percent are arrested again within three years of their release, according to state statistics.

Still, halfway houses have been controversial, particularly among prison officer unions who say rehabilitation programs should be provided in more secure state prisons. Boxer questioned whether halfway houses were worth the money, saying Corrections cannot show they cut the recidivism rate.

Denial of Accidental Disability for Mental Injury Sustained


On January 21, 2010, the Appellate Division decided In the Matter of Rosemarie Tatusko, Docket No.: A-2888-08T3. The case involved an appeal from a final decision of the Board of Trustees of the Police and Firemen’s Retirement System which denied Rosemarie Tatusko’s (“Appellant”) application for an accidental disability pension.

Appellant was employed by the Department of Corrections as a senior correctional officer at the Burlington County Jail. Her application for an accidental disability pension was based on an incident that occurred on Ocotber 22, 2005, when she assisted in saving a female inmate who had attempted to commit suicide. Appellant heard a “hacking gagging noise,” and when she scanned the prison cells to determine the source of this noise, she found the inmate hanging from a sheet in her cell. Appellant called another correctional officer to help her and the two of them were able to cut down the sheet with scissors and get the inmate to the floor. Appellant though at the moment that the inmate had died, but later found out that she had survived the attempted suicide.

At the time of the incident, Appellant had been a corrections officer for eight years. During that time, she had witnessed three other attempted suicides, two of which involved inmates cutting their wrists and the third of which also involved a hanging. Appellant did not experience any psychological problems after any of those three prior incidents. However, Appellant suffered a total and permanent psychological disability as a result of the October 22, 2005 incident. When Appellant was asked at the hearing on her application before an Administrative Law Judge (“ALJ”) how the October 22, 2005 incident differed from those prior incidents, she responded: “I don’t know. I can’t explain.”

The ALJ concluded that Appellant’s observations of the inmate’s attempted suicide and efforts to save her constituted a traumatic psychological event and, therefore, granted Appellant’s application. The Board rejected this recommended conclusion and determined that Appellant’s application should be denied because Appellant’s observation of the inmate’s attempted suicide and her subsequent efforts to save the inmate were not objectively capable of causing a reasonable corrections officer with training and experience similar to appellant to suffer a disabling mental injury. This appeal ensued.

The Appellate Division determined the Board correctly concluded that the determination whether a mental stressor was “objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury” should be made from the perspective of “a reasonable corrections officer with similar experience and training.” The Court also noted that the Board, which is composed partly of law enforcement officers, is in a better position than the Court to decide whether “a reasonable corrections officer with similar experience and training” could suffer a disabling mental injury as a result of the October 22, 2005 incident upon which Appellant based her claim for an accidental disability. As such, the Court affirmed the Board’s decision to deny Appellant’s application.

Termination of Corrections Officer Sustained


On December 21, 2009, the Appellate Division decidedIn the Matter of Edwin Garcia, Department of Corrections Hudson County, Docket No.: A-1404-08T3. In the case, Edwin Garcia appeals from the final administrative action of the Civil Service Commission, terminating his employment as a corrections officer with the Hudson County Department of Corrections.

At issue were two disciplinary matters. In the first, the County maintained that Garcia failed to include in a report the fact that another officer had lunged at a handcuffed inmate and grabbed the inmate’s shirt. As a result, the County charged Garcia with insubordination, conduct unbecoming a public employee, neglect of duty, and other sufficient cause. In the second disciplinary matter, the County asserted that, while involved in an incident with an inmate, Garcia used excessive force despite being ordered numerous times to cease. For this incident, Garcia was charged with conduct unbecoming a public employee, neglect of duty, and other sufficient cause. The County sought to terminate Garcia’s employment.

The County held a hearing on the disciplinary charges on March 2, and April 4, 2007, wherein the hearing officer sustained the charges. A final notice of disciplinary action terminating Garcia’s employment was issued on June 7, 2007. Garcia appealed the decision to the Civil Service Commission and a hearing was held before an Administrative Law Judge.

The ALJ sustained both charges, finding, with respect to the first incident, that “Garcia submitted a report omitting the use of excessive force on an inmate” and, with respect to the second incident, that “Garcia used excessive force to subdue inmate E.B. by striking him, although ordered to desist by superior officers.” In the Initial Decision, the ALJ concluded that Garcia had committed conduct unbecoming a public employee, neglect of duty, and insubordination. In light of Garcia’s prior record and the nature of these offenses, the ALJ imposed the sanction of removal. The Commission, in its independent evaluation of the record, concluded that the removal was justified. This appeal ensued.

 On appeal, Garcia argued the findings of the Commission were not justified and the sanction of removal was arbitrary and capricious. The Appellate Division affirmed Garcia’s termination. Specifically, the Court found that there was substantial credible evidence supporting the findings of the ALJ and the conclusions reached by the Commission. The Court also determined the sanction of termination for the infractions is not unreasonable or disproportionate in light of the offenses, particularly when viewed in conjunction with Garcia’s prior disciplinary record.     

SID Union Accuses NJDOC of Preventing, Blocking Prison Investigations


As reported in the Star-Ledger on November 26, 2009, according to a lawsuit filed by the union representing prison investigators, senior officials at the Department of Corrections are illegally blocking internal investigations into bribery, cell phone smuggling and gang activity. In short, the lawsuit alleges that Correction officials shut down ongoing probes or prevented investigations from even beginning.

For example, the lawsuit alleges that investigators were told not to examine whether a prison employee was hiding a cell phone, or if an inmate had “put out a hit” on people outside the prison system. Other alleged spike investigations included probes into prison employees who fired service weapons, once during an alleged off-duty bar fight. Allegedly, both files were marked “no action taken” by senior officials.

The union, Fraternal Order of Police Lodge 174, represents about 90 officers within the Department of Corrections’ Special Investigations Division. The union has previously clashed with the Department’s leadership on issues of tactics and resources. 

The Special Investigations Division has been controversial for its dual role in probing gang activity and handling internal affairs. Officials inside and outside of the Division say its dual role creates distrust within the Department.

Spokespeople for the Department of Corrections and the Attorney General declined to comment on the pending lawsuit. Please check this blog periodically to ascertain updates regarding this lawsuit as the same become available.

Illicit Cell Phone Crackdown, New Measures Unveiled


A previous entry to this blog focused upon the presence of illicit cell phones in prisons. In the entry, it was explained how illicit cell phones remain a major problem inside New Jersey’s prisons, as inmates use the devices to secretly communicate with each other, intimidate witnesses and direct drug deals and other illegal activity.

On September 16, 2009, the Trentonian reported that New Jersey Attorney General Anne Milgram is now utilizing sniffing dogs and orifice scanners to address the problem. Recently, twenty-five convicts from five different gangs and 10 other New Jersey prison inmates have been indicted for possession of cell phones.

Attorney General Milgram announced the indictments at a press conference in which police dogs demonstrated their ability to sniff out hidden phones and authorities unveiled a new cell detection device called the BOSS, for “Bodily Orifice Security Scanner.” The BOSS is a device for looking into a body like and x-ray machine or airport surveillance equipment that can see hidden items. The scanner is within a chair that inmates sit in to be checked for contraband.

Prison officers and others in New Jersey are concerned that the gangs which overpopulate state prisons are trying to run the prisons at the same time they try to call the shots for other gang members still on the outside. “Safety and security both inside and outside the prison walls are paramount to our mission,” said New Jersey Department of Corrections Commissioner George W. Hayman. “Illegal cell phones potentially provide the offender population with an opportunity to compromise public safety. This cannot and will not be allowed to happen, and we will continue to utilize aggressive, proactive measures in our efforts to protect law-abiding citizens.”

Attorney General Milgram stated that between August 2008 and July 2009, New Jersey Corrections Officers seized 391 cell phones from inmates. She also noted that the gang population in New Jersey prisons keeps escalating because of all the recent arrests of gang members, almost 2,000 in the last 13 months.

To read the article in its entirety, please click on the following link.

Corrections Officer Charged In Fake Grenade Incident


As reported by the Asbury Park Press on August 24, 2009, Keith Trimmer, 41, a senior corrections officer at Mountainview Youth Correctional Facility, has been charged with bringing an imitation hand grenade into the facility on May 13, 2009, creating a disturbance, according to the Hunterdon County Prosecutor’s Office.

Other correction officers saw the device, prompting a response from the Department of Corrections’ Special Operations Group. The Special Operations Group provides tactical and technical support during a crisis. 

The incident was investigated by the Hunterdon County Prosecutor’s Office, Major Crimes Unit and the Department of Corrections, and the Special Investigations Division of Mountainview Youth Correctional Facility. As a result, Officer Trimmer has been suspended without pay since May 15, 2009.

To read the article in its entirety, please click on the following link.

Legislation Proposed Regarding Illicit Cell Phones Inside NJ Prisons


As reported in the Trentonian on August 24, 2009, illicit cell phones remain a major problem inside New Jersey’s prisons, as inmates use the devices to secretly communicate with each other, intimidate witnesses and direct drug deals and other illegal activity. As a result, one New Jersey lawmaker is proposing to give corrections officials more tools to deal with the problem. 

Assemblyman Patrick Diegnan, Jr. recently proposed legislation calling on the State to seek proposals for installing and operating a wireless communications device detection system. Another measure calls for blocking the transmission and reception of cell phone equipment carrying voice, text messages, images and other data within correctional facilities.  No hearings have been scheduled yet on either measure.

Officials would have to ensure that the latter technology would not interfere with emergency or public safety communications and that it operates at the lowest possible transmission level necessary, nor interfere with cell phone signals that originate and end outside the state’s correctional facilities. 

Nearly 400 cell phones have been seized in correctional facilities since August 2008, when officials started keeping track of confiscations, according to State data. More than a third were found in Northern State Prison in Newark, which houses the State’s most dangerous gang members, and four associated halfway houses. Officials say the smuggling problem has worsened in recent years as cell phone technology has improved. They note that newer, smaller phones are made with less metal, making them harder to detect. 

“Incarceration should be a time for reflection and rehabilitation, not for continuing criminal enterprises or intimidating witnesses,” Diegnan said. “We should take advantage of the technology we have to ensure offenders aren’t simply moving the bases of their operations behind bars thanks to cell phones.”

New Jersey, though, is not the only state dealing with a phone smuggling problem. About 3,500 phones have been found in California institutions this year, which is more than the entire total seized in 2008. In Texas, officers have found more than 900 phones so far, compared with 1,200 for all of last year.

“Illegal cell phone use by prisoners has become a leading worry throughout the country and has played a leading role in the expansion of gangs both behind bars and on our streets,” said Diegnan. “While we’ve taken aggressive steps here in New Jersey to combat it, these bills would simply boost our efforts and enhance public safety.”

Correction Officer Recruit Trainee Pilot Demonstration Program Declared Void


On July 23, 2009, the Superior Court of New Jersey, Appellate Division issued its opinion in the case of James Liik, et al v. New Jersey Department of Personnel/New Jersey Department of Corrections, Docket Number A-4121-06T2.

This particular opinion has widespread implications in regard to pay and seniority of thousands of New Jersey corrections officers presently employed with the New Jersey Department of Corrections.

By way of background, in 1997, the New Jersey Department of Corrections and New Jersey Department of Personnel created and implemented a pilot program which modified training procedures for corrections officer recruits. Prior to the implementation of the pilot program, candidates for employment with the Department of Corrections were hired as employees and assigned the rank of “correction officer recruit” during their period of training and completion of their working test period. During this time, corrections officer recruits received full salary and benefits available for this particular rank. Once the working test period associated with the position of corrections officer trainee was successfully completed, they were then promoted to the position of senior corrections officer. The pilot program eliminated this practice and those individuals seeking employment with the New Jersey Department of Corrections were designated as “students/trainees.”

As a result of this change, they were no longer considered employees of the New Jersey Department of Corrections, but instead received the lesser rank of corrections officer recruit/trainee during the 14-week training period. During this 14-week training period, instead of receiving the regular salary of a corrections officer recruit, they received a $300 weekly stipend. If a recruit trainee successfully completed the prescribed program of training, they then became “employees” of the New Jersey Department of Corrections and received the salary and benefits of a corrections officer recruit. Despite the fact that the program was to last for only a period of one year, the New Jersey Department of Corrections and Department of Personnel made the program permanent in 1999. A stipend of $300.00 that was to be paid to student trainees never increased over the following years and a significant financial burden and hardship was placed upon those individuals seeking employment with the New Jersey Department of Corrections.


Sometime in 2007, PBA 105, the Certified Collective Bargaining Unit for Senior Corrections Officers employed by the New Jersey Department of Corrections, demanded that the Department of Personnel raise the stipend and terminate the pilot program which had been ongoing since 1997. The Department of Personnel and Department of Corrections refused their demand. As a result, an appeal was filed by the PBA challenging the Department of Corrections and Department of Personnel’s decision to continue the pilot program beyond the one year period of time.

The Superior Court of New Jersey, Appellate Division sided with PBA 105 and stated that the Civil Service Act provided that “pilot programs” may only be established and put into place for a period of one year. The Appellate Division went on to further state that if a pilot program was continued past the one year period of time, the Department of Personnel was required to issue rules and regulations allowing for such an extension under Title 4A of the New Jersey Administrative Code.

As a result of the Department carrying the program past the one year period of time, the Appellate Division declared that the continuation of the pilot program beyond the one year period of time without engaging in the rulemaking process as required by the New Jersey Administrative Procedure Act, declared the program null and void. While the Appellate Division’s decision is clear, we do not know what the New Jersey Department of Corrections or New Jersey Department of Personnel will do in regard to appealing the Appellate Court’s decision. Furthermore, we are also unsure as to whether or not the Department of Corrections will abide by the Appellate Court’s ruling and now treat those employees of the New Jersey Department of Corrections as corrections officer recruits and not recruit trainees.

Finally, a large issue looms on the horizon as to whether or not those individuals went through the corrections officer recruit training program as “students/trainees” will be entitled to back pay and benefits and a change in seniority date as a result of the ruling.

When more information is gathered from the unions as to how they will represent their members on this matter, we will update you accordingly.

Blanket Strip Searches of Non-Indictable Offenders, Performed Without Reasonable Suspicion Are Unconstitutional

In the matter of Florence v. Board of Chosen Freeholders of the County of Burlington, Civil Action No. 05-3619, the United States District Court, District of New Jersey, addressed the issue of strip searches of non-indictable offenders.

Plaintiffs consisted of a certified class to include all arrestees charged with non-indictable offenses, which were processed at Burlington County Jail and/or the Essex County Correctional Facility and were strip searched without a reasonable belief that they were concealing contraband, drugs, or weapons. Defendants were the Board of Chosen Freeholders of Burlington County, Burlington County Jail, Warden Juel Cole, Essex County Correctional Facility, Essex County Sheriff’s Department, and several John Does.

Plaintiffs sought summary judgment on the issue of whether Defendants violated Plaintiffs’ constitutional rights by their policy of strip searching non-indictable arrestees without reasonable suspicion. Plaintiffs also sought injunctive relief on behalf of the class against the correctional facilities’ strip search policies.

In response, Defendants also sought summary judgment as to whether the strip searches were constitutional. In addition, Defendants sought summary judgment on the following issues: (1) 11th Amendment immunity for the Board of Chosen Freeholders of Burlington County, Burlington County Jail, and Warden Cole in his official capacity; (2) qualified immunity for Warden Cole in his individual capacity; and (3) the dismissal of count five involving section 1983 municipality custom violations regarding Essex County.

The District Court held that blanket strip searches of non-indictable offenders, performed without reasonable suspicion for drugs, weapons or other contraband are unconstitutional. Specifically, the Court indicated that the search policies at Burlington and Essex County jails do not pass constitutional muster under the balancing test set forth by the U.S. Supreme Court in Bell v. Wolfish. The Court also determined the justification for the blanket policy is not compelling, where it is based on general security concerns and health concerns, as nothing prohibits jail officials from searching non-indictable offenders, assuming they have reasonable suspicion to do so.  

Based upon its finding that blanket strip searches of non-indictable offenders, performed without reasonable suspicion for drugs, weapons or other contraband, are unconstitutional, the Court granted Plaintiffs’ motion for summary judgment. As to a remedy, the Court denied Plaintiffs’ motion for injunctive relief on account of a lack of standing, since Plaintiffs have failed to show irreparable harm in that they are unlikely to be subjected to strip searches in the future. 

Lastly, the Court denied Defendants’ Motion to dismiss in its entirety. The Court found Defendants’ arguments and factual averments are too scant to support a finding of 11th Amendment immunity and Plaintiffs’ factual allegations regarding municipal liability under section 1983 sufficiently complied with pleading requirements under Federal rules. Finally, the Court determined Warden Cole was not entitled to qualified immunity since a constitutional violation was present and Warden Cole ought to have been put on notice that the strip search policy was unconstitutional.