Barry Albin
Barry Albin (Carmen Natale)

A divided state Supreme Court ruled Monday that a public defender attacked by her own client at a state psychiatric hospital can proceed with claims against various state officials that her substantive due process rights were violated by a state-created danger.

The three-judge majority, led by Justice Barry Albin, further ruled that the defendants were not entitled to qualified immunity.

The decision in Gormley Devine v. Wood-El reinstated civil rights claims brought by Assistant Deputy Public Defender Lorraine Gormley Devine over injuries resulting from a Sept. 22, 2005, assault at Ancora Psychiatric Hospital, located in Hammonton, in Atlantic County.

A lawyer with the Division of Mental Health Advocacy, she was at Ancora to meet with clients in order to prepare for upcoming commitment hearings.

It was her first meeting with client B.R., who suffered from a psychotic disorder with hallucinations and had been assigned “continuous visual observation” status because she posed a safety risk to herself and others, requiring that an assigned staff member keep her under “continual visual observation” at all times. Gormley Devine was not informed of B.R.’s CVO status.

Ancora did not provide private rooms for lawyers to interview clients, so they sat down at a table in the dayroom that served a locked ward of 35 to 40 involuntarily committed mentally ill patients.

No security guard was assigned to any of the dayrooms, which Albin referred to as “the scene of frequent fights and violence,” and there was no security camera or emergency call device even though patient assaults on attorneys and psychiatrists were not uncommon.

Almost 4,000 assaults, including 810 assaults against staff members and visitors, 200 of which resulted in injuries, were reported at Ancora from October 2003 through December 2005, according to figures cited by Albin.

The plaintiff’s supervisor, Ted Novak, testified that prior to the attack on her, he had been assaulted three times by patients and when he went there, he was constantly looking over his shoulder.

Gormley Devine sat with her back to the wall so that no one could get her from behind but the space was so noisy that she sat perpendicular to B.R. rather than across the table, so that she could hear her above the screaming.

As she turned her head, B.R. hit her several times and when she tried to flee, B.R. grabbed her by the hair and pulled her backward, causing her to fall and strike her head on the concrete floor. She blacked out briefly and when she regained consciousness, B.R. was still attacking her. She had to kick B.R. off because no one came to her assistance.

The resulting closed-head injury caused memory loss, cognitive and visual impairment, sleep disturbances, extreme fatigue, and PTSD, for which Gormley Devine was treated by a neurologist, psychologist, cognitive therapist and neurotherapist. She missed almost four months of work and returned to the job on a four-day schedule and subject to the restriction that she would no longer be assigned Ancora patients.

She sued five state officials in their individual rather than their official capacities: Ancora CEO Latanya Wood-El; the Department of Human Services Commissioner Jennifer Velez and her predecessor, William Waldman; Kevin Martone, assistant commissioner; and the former director of the Division of Mental Health Services, Alan Kaufman.

Gormley Devine alleged they acted with deliberate indifference to her physical safety in the face of known dangers within their control and failed to take reasonable steps to safeguard her from a violent assault and to train or supervise the staff on how to promptly prevent or stop such an assault.

In 2009, then-Camden County Assignment Judge Faustino Fernandez-Vina denied summary judgment on the civil rights claims.

The Appellate Division reversed in part. Judges Paulette Sapp-Peterson, Mary Catherine Cuff and Douglas Fasciale agreed that Gormley Devine had a triable issue as to whether the defendants placed her in a position of danger that violated her federal right to substantive due process but held that the Section 1983 claims should have been dismissed on qualified-immunity grounds because, at the time of the assault, that right was not clearly established.

The Supreme Court affirmed on the due process violation and reversed on the immunity issue.

It found that Gormley Devine was “a member of a discrete class of foreseeable victims—professionals required to meet in the volatile dayroom with patients.”

Viewing the evidence in the light most favorable to Gormley Devine, it concluded that the defendants affirmatively used their authority to create the danger that made Gormley more vulnerable to the assault, given the locked institutional environment over which they exercised total control, including control over where Gormley Devine met with B.R., and their knowledge of the special danger B.R. might pose.

The plaintiff met the “shocks the conscience” standard, held Albin, joined by Chief Justice Stuart Rabner and temporarily assigned appeals Judge Ariel Rodriguez.

The majority said the ruling would not “open a floodgate of litigation against public entities” because the level of violence at Ancora was “unique.”

Qualified immunity did apply because the right was clearly established as of 2005, the court added.

Dissenting Justices Jaynee LaVecchia and Anne Patterson agreed that a substantive due process claim can be based on state-created danger and special relationship theories of liability, but did not agree that Gormley Devine had made out a viable claim or on when the right was established,

In addition, they warned that “this new theory of constitutional violation for state-created danger will supplant the New Jersey Tort Claims Act, and its careful delineation of public entity and individual liability.”

Gormley Devine reacted to the decision, saying, “State defendants should not be allowed to knowingly subject attorneys to such dangerous conditions where they are at constant risk of injury.”

Her attorney, Justin Loughry of Camden’s Loughry and Lindsay, called the opinion important for lawyers “who go into very difficult environments to carry out constitutional duties,” not just psychiatric hospitals, but prisons as well.

Assistant Public Defender Dale Jones said, “We deal with a very difficult client population” and “are asked to walk into situations that a lot of people don’t, on a daily basis.”

The Attorney General’s office, which represents the defendants, did not respond to a request for comment.

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