TYC defiance over pepper spray policy sends agency back to court

Grits readers should have known this was coming; from today's Austin Statesman, "Advocacy groups claim Youth Commission isn't following court order on pepper spray use."

Last week TYC acting commissioner Dimitria Pope told the Legislature that any staff still using forbidden pepper spray techniques were either "corrupt" or lacked "reading comprehension." Now the two groups that sued TYC have called the agency on that claim in court, reported the Statesman:

Jim George, an Austin attorney who chairs the Texas Appleseed board, said: "We had an agreed order signed by a judge, and they have not complied with it. It's unusual for people to say to a district judge, 'I will do something' and then just not do it."

In the court filing, the two groups claim that Youth Commission staff have used pepper spray in violation of both the court order and agency policy. They also claim that Billy Humphrey, the agency's deputy director of juvenile corrections, has instructed administrators at Youth Commission facilities to use pepper spray on youth, in violation of the Sept. 28 court order.

No hearing date has been set.

In their original lawsuit, the groups claimed that Dimitria Pope, the agency's acting executive director, illegally widened the use of pepper spray as a first response to control youths. Under state law, such a change should have been made only after giving the public a chance to comment on the change, the lawsuit stated.

Not only did the notification to staff sent out by "Bronco" Billy Humphrey fail to clearly tell JCOs when pepper spray could and couldn't be used, commenters in this post revealed internal emails (forwarded to me privately) where Humphrey openly instructed trainers at the units to continue teaching the policy trumped by the lawsuit. "The guidance to staff will not change," Humphrey wrote. "The [September 28] memo is in no way to be interpreted as TYC going back to the old way of doing business!" Here's the relevant portion of the email (forwarded by someone who's not on the string):

Forwarded Message

Subject:	RE: OC Spray
Date:	Mon, 1 Oct 2007 19:25:24 -0500
From:	"Billy Humphrey"
To:	"Marty Martin" , "Ashley Berry"
CC:	"TYC - Trainers - Field" , "TYC - Trainers"

Marty

Chemical agents has always been authorized by policy, staff have just been instructed not to use it. There are situations where physical force is necessary as there is circumstances where in the interest of preventing injuries we will use chemical agents. The guidance to staff will not change. If we must use physical force, it is a last resort and we are to do it in such a manner so as to prevent injury to any party involved. The memo is in no way to be interpreted as TYC going back to the old way of doing business!

BSH

-----Original Message-----
From: Marty Martin
Sent: Monday, October 01, 2007 3:47 PM
To: Ashley Berry
Cc: Billy Humphrey; TYC - Trainers - Field; TYC - Trainers
Subject: RE: OC Spray

Thanks Ashley. I will follow-up. Billy can you provide some additional guidance on the use of OC? Are we changing the continuum to move OC as the step before physical restraint? If so, this has a big impact on how we train this portion of UOF. Please advise. Thanks.

-----Original Message-----
From: Ashley Berry
Sent: Monday, October 01, 2007 1:12 PM
To: Marty Martin
Cc: Ashley Berry
Subject: RE: OC Spray

Marty-

I left you a voicemail on your cell concerning this. The memo appears to apply to all facilities not just halfway houses, since it doesn't appear to stipulate in the memo. I have gotten some phone calls from trainers as we have to train this soon. Basically, it appears to read that we are returning to limited use of pepper spray. I think we need some clarification on this memo sent out so that everyone isn't teaching something different because I am picking up on a lot of confusion.
Let me know if there is anything I can do to help.

-Ashley

No wonder the advocacy groups are headed back to court! Days after TYC told the court it would retract policies expanding pepper spray use, their head of security instructed trainers they wouldn't "go back to the old way of doing business."

That's pretty brazen, just as it was brazen for Ms. Pope to blame employees for any confusion about the policy. Clearly the administrators she brought over from the adult prison system - particularly Humphrey and Martin - knew that wasn't true when she said it. And if she didn't know, it wasn't that she wasn't told; if nothing else, she coulda read it on Grits.