Ex-Sheriff, Jail Chief Not Immune From Water Shutoff Suit: Judges

CHICAGO — A federal appeals panel last week rejected an attempt by former Lake County Sheriff Mark Curran and his Deputy Chief Dave Wathen to be removed as defendants from a lawsuit accusing them of violating the constitutional rights of pretrial detainees by shutting off water at the Lake County Jail for several days.

"All but the most plainly incompetent jail officials would be aware that it is constitutionally unacceptable to fail to provide inmates with enough water for consumption and sanitation over a three-day period," the judges found.

Without warning, jail officials cut off running water from Nov. 7 to Nov. 10, 2017, according to a federal civil rights lawsuit filed in December 2017 on behalf of five detainees. Those held at the jail were not allowed to flush their toilets, leaving them in cells "with urine and feces festering," it said.

The suit said then-Chief of Corrections Wathen, Curran, the Lake County Sheriff's Office, Lake County and as-yet-unidentified correctional officers and supervisors violated their detainees' Eighth and Fourteenth Amendment rights to protection against cruel and unusual punishment and equal protection under the law by subjecting them to inhumane and unsanitary conditions. Although, given that the jail's occupants had not been convicted of a crime, the Eighth Amendment did not apply and the district court was correct to dismiss that portion of the complaint, the appellate panel noted.

Conceivably, jail officials could be excused for failing to properly estimate the amount of water needed ahead of time as long as they fixed it once it became clear. But that's not the situation the detainees describe in this case, according to the Aug. 12 decision from a three-judge panel of the U.S. 7th Circuit Court of Appeals affirming a July 23, 2018, order from U.S. District Judge Sharon Johnson Coleman rejecting the request for qualified immunity from the Lake County State's Attorney's Office, which has been representing county and jail officials.

"According to plaintiffs' allegations, Wathen [and the other defendants] provided a limited amount of water, he and his staff were quickly made aware that more water was needed both for consumption and for sanitation, and they failed to provide any additional water," the panel found. "Indeed, plaintiffs allege that [jail officials] punished them for continued water requests."

Guards gave detainees five bottles of water a day for drinking, brushing their teeth, washing or taking medication. They were refused additional water and put on lockdown if they repeated their request, according to their complaint.

There was also a communal barrel of water in shared areas that was to be used for bathing, cleaning the cells and flushing toilets — but only when feces was present and never at night. This failed to actually clear the toilets, creating a "powerful and putrid smell," prompting detainees to become "sick, sleep deprived, and agitated" and leading to "dehydration, migraine headaches, sickness, dizziness, constipation, and general malaise," the opinion said.

"A single clogged toilet does not violate the Constitution, and prisoners are not entitled to Fiji Water on demand," according to the opinion. "But on the other end of the spectrum, a defendant cannot purposefully deny water until a prisoner is on the brink of death or force a prisoner permanently to live surrounded by her own excrement and that of others."

County officials have said the shutoff was necessary and no one was "denied water." But even if Wathen's stated justification for shutting off the water — to replace a water booster pump — is eventually determined to be legitimate, the conditions described in the lawsuit are "objectively unreasonable" and "crossed outside of constitutional bounds."

"[B]ecause the water shutdown was planned, none of these issues was unforeseeable or incurable. Even cursory Internet research would have given [jail officials] a general idea of how much water the jail would need to allow the inmates to flush their toilets each day. And if [jail officials] could not procure enough water to fix that problem, there was a still more obvious solution: portable toilets," the judges wrote, noting the complaint alleges that jail officials were able to import thousands of bottles of water into the jail but no port-o-potties.

"Indeed, recognizing that a lack of indoor plumbing is a common problem at campgrounds, county fairs, music festivals, and other large gatherings, numerous companies have sprung up to provide this exact service, including to government entities."

After members of the public complained of inhumane conditions at the jail at a board meeting a few days after the shutdown, former Lake County Board President Aaron Lawlor described it as "more an issue of communicating." Amid a state police investigation into his use of county-issued credit cards, Lawlor last year went on indefinite leave, entered rehab and did not seek another term.

At the same meeting, former County Administrator Barry Burton claimed people at the jail were given advance notice, but the board and family members of inmates were not. Burton resigned in September 2018 to take a job as administrator in Pinellas County, Florida. His replacement, Bill Panos, announced last week he was quitting after about six weeks on the job to become director of the North Dakota Department of Transportation.

The 7th Circuit's ruling, first reported by Courthouse News Service, was authored by Chief Judge Diane Wood. Circuit Judge Joel Flaum agreed and Circuit Judge Diane Sykes authored a concurring opinion.

In her concurrence, Sykes said a court could again review the legitimacy of Curran's and Wathen's argument that the jail conditions were not excessive considering the need to replace a water pump at a later stage of proceedings. The detainees will eventually have to prove that the sheriff's office officials acted "purposefully, knowingly, or recklessly" and that their actions were "objectively unreasonable," she said.

Curran kept Wathen on the job after the water shutoff incident. But after the death of a detainee in September 2018, the former sheriff demoted Wathen from jail chief to deputy chief. At the time, Curran said Wathen had spent 28 years in charge of the jail. After Curran left office, the entire senior leadership at the jail was replaced and Wathen became a lieutenant.

Days after dropping his challenge to last November's election, where he lost to Sheriff John Idelburg by 137 votes, Curran announced plans this month to run for the Republican Party nomination to challenge Democratic U.S. Senator Dick Durbin. Curran and three other candidates — retired U.S. Navy sailor Peggy Hubbard, Springfield physician Tom Tarter and former Democratic gubernatorial candidate Robert Marshall, a Burr Ridge doctor focused on dividing Illinois into two states — spoke to the Illinois GOP last week in Springfield.

Related:

• Chiefs Demoted, Officers On Leave After Lake County Jail Death
• 'Urine And Feces Festering' In Jail Was Inhumane: Lawsuit
• 'No One Was Denied Water' At Lake County Jail During Outage