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Judge says four citizens can sue sheriff if he skirts state rules

A judge agreed Wednesday that a group of four advocates for prisoners' rights has legal standing to take Sheriff Timothy B. Howard to court if he or his aides again fail to report serious jail incidents to Albany.

The four had hoped State Supreme Court Justice Mark A. Montour would go further and order the Erie County sheriff to follow the state's rules on reporting serious incidents. Such an order would have laid the groundwork for a contempt of court citation if Howard and his staff again fell short.

While Montour didn't go that far, the four considered it a victory when the judge rejected a county attorney's argument to dismiss the case because the four were trying to do a job assigned to the state agency that oversees local jails.

Jeremy C. Toth of the County Attorney's Office said state law authorizes only the Commission of Correction to compel a sheriff to follow its "reportable incident guidelines." In court papers, Toth said the four should sue the commission if they believed the agency had not enforced its rules.

However, Anna Marie Richmond of Buffalo, the lawyer for the four, said all citizens have an interest in ensuring that the county Holding Center in downtown Buffalo and the Correctional Facility in Alden are run in a "humane and constitutional manner ... in a way that treats all of us with dignity and respect." She offered court decisions dating to the 19th century to bolster their argument that citizens could initiate such a case.

Soon after those remarks, Montour denied Toth's request to dismiss the matter and said the four have legal standing. But the judge then denied Richmond's request to order Howard to follow the state's rules, because she had no proof that he wasn't.

"It appears to be all too speculative," Montour told her.

The case sprang from a series of events that transpired over the past 12 to 14 months. Early this year, The Buffalo News revealed that Howard's Jail Management Division was categorizing inmate suicide attempts as "individual inmate disturbances," a label that did not require an automatic report to the Commission of Correction.

The News also revealed, months earlier, that the staff at the county Correctional Facility wrongly told the commission an inmate was hospitalized because he had been hurt in an accidental fall. In fact, the inmate had sought protective custody, didn't get it, and was beaten by the inmate he feared.

Then after its own investigation, the commission found Howard's staff at the Holding Center also had failed to officially report the mistaken release of an inmate.

So the Commission of Correction sent Howard a letter directing him to follow the reportable incident guidelines or face a lawsuit. The head of his Jail Management Division, Thomas Diina, responded in June with a letter assuring the commission that Erie County jail officials would follow the rules.

The matter might have ended there, if not for an interview Howard gave The Buffalo News a few weeks later. Howard justified his staff's decision to label  certain suicide attempts as inmate disturbances or manipulative gestures if they felt the inmate was only trying to gain sympathy and didn't really want to die.

"I’m not willing to label that individual suicidal when medical and mental health professionals are not saying that,” Howard said at the time.

The four saw that as a sign the sheriff felt free to interpret the rules on his own, and they began researching a lawsuit. They are: the Rev. Eugene L. Pierce, a former official at the Correctional Facility; Karima Amin, a central player in prisoners' rights groups; Chuck Culhane of the Western New York Peace Center's Prisoners' Action Committee; and Nan L. Haynes, a retired University at Buffalo Law School professor who has long agitated for better conditions inside the county facilities.

All four used to have seats on the county's Community Corrections Advisory Board, a panel allowed to monitor the county jails until County Legislature Republicans loyal to the Republican sheriff failed to reappoint key members. The board disbanded in 2014.

Both sides came away from Wednesday's court arguments thinking about their next move. Toth said he would have to talk with others in the County Attorney's Office about whether to appeal. But Pierce and the other plaintiffs said they felt the door was open to return to court if they find one of the county facilities failed to report, or wrongly reported, a serious incident.

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