Attorneys representing the family of a slain correction officer on Monday attacked arguments that former Govs. Jack Markell and Ruth Ann Minner are entitled to immunity in a wrongful death case stemming from the Feb. 1 takeover of James T. Vaughn Correctional Center, arguing their failure to address severe staffing and training shortages at the prison created the conditions for the deadly uprising to occur.
Attorneys from The Neuberger Firm and Jacobs & Crumplar said in a federal court filing that the administrations were aware of pressing security concerns at the Smyrna facility dating back to 2001, but decided to hide the problem from lawmakers and the public, rather than working to staff vacant positions.
According to the document, the practice started under Minner, but was extended during the Markell years, when prison overtime budgets exploded and the state adopted a formal policy of leaving at least 90 Department of Correction openings unfilled at any given time.
“As to all of the Minner and Markell defendants: They created the severe problems by way of their newly enacted policies; they worked to implement these same policies; they knew of the extreme problems their policies created by numerous means brought directly to their attention; and they consciously ignored and refused to fix them over an eight-16 year time frame,” the attorneys said in a brief signed by Stephen J. Neuberger.
The Delaware Department of Justice, which is representing Markell, Minner and the other state defendants, declined to comment on Monday.
The filing came in response to the state’s motion to dismiss the lawsuit, filed by the family of Lt. Steven Floyd Sr., a veteran corrections officer who was killed during the 18-hour siege. Five correction officers injured in the ordeal joined the suit, which also names three former DOC commissioners, current Commissioner Perry Phelps and three directors of the Office of Management and Budget.
The defendants moved to dismiss the case in July, arguing that the plaintiffs had no constitutional right to full-time staffing at the prison, and the state has no duty to protect employees from unreasonable risks in the workplace. Without a clearly defined right, the state defendants were protected by qualified immunity, which shields government officials from liability for civil damages.
On Monday, Floyd family attorneys said the state bound itself to provide a “safe, secure and healthy work environment for all correctional officers” when it signed contract collective bargaining agreements with a union representing prison workers.
“This answers the defense claim they had no duty to provide a safe workplace for [correction officers],” Thomas S. Neuberger said in an email.
The attorneys also argued that the state’s motion to dismiss the complaint was premature, and they said discovery was needed for a ruling on their 14th Amendment due process claim.
“This is a story about public officials whose actions and policies over 16 long years destroyed the DOC,” the attorneys said. “For the last 13 of those years, they ignored repeated warnings of where their new policies would lead and instead doubled down and plowed ahead. Thus this story is a tragedy, because the end was avoidable. When such extended opportunities to do better are teamed with protracted failure even to care, such indifference is truly shocking.”
The filing came just ahead of the scheduled release on Aug. 25 of a final independent report on the uprising at JTVCC. A preliminary version of the review, released in June, found that chronic understaffing, a lack of communication and overcrowding all played a role.
Current Delaware Gov. John Carney has acknowledged problems stemming from unfilled staff positions, and in June authorized a commission to reform the DOC. Carney also reached a deal this summer with correction officer unions to increase new officer pay in an effort to retain staff.
The DOJ has been assisting the Delaware State Police with a criminal investigation into the siege. A spokesman for the department earlier this month said that prosecutors planned to present an indictment in the case to a New Castle County grand jury in the coming months.
The Office of Defense Services, which provides legal representation through its Public Defender and Office of Conflicts Counsel, has said that it is responding to prisoners’ requests for counsel, but did not indicate how large the need was.
“The Office of Defense Services has and will continue to provide counsel for any inmate that wants to speak with an attorney or requires legal representation regarding the Feb. 1 incident at the James T. Vaughn Correctional Center,” spokesman Jon Offredo said in a statement Aug. 7. “We have no further comment.”
The case, captioned Floyd v. Markell, has been assigned to U.S. District Judge Richard G. Andrews of the District of Delaware.