United States District Court, District of Columbia
E. BOASBERG, UNITED STATES DISTRICT JUDGE
Darin Moore, Gabriel Brown, James Taylor, and John Sweeney
are charged with, among other crimes, First-Degree Murder
While Armed and Kidnapping Resulting in Death. All four are
detained in D.C. Department of Corrections facilities while
awaiting trial. At some point, the U.S. Attorney's Office
submitted a request to DOC that Defendants be separated. DOC,
consequently, appears to have transferred two Defendants
(Taylor and Sweeney) to the Correctional Treatment Facility
(CTF), while the other two (Moore and Brown) have remained at
the D.C. Jail. Certain restrictions have been imposed within
those facilities to keep the pairs of Defendants apart. Moore
now moves to vacate the separation order, claiming that it
unconstitutionally restricts his movements within the Jail.
Disagreeing, the Court will deny the Motion.
Government alleges that on June 19-20, 2018, Defendants
kidnapped Andre Carlos Simmons, Jr., held him for ransom, and
then killed him. See ECF No. 41 (Superseding
Indictment) at 2-6. It thus arrested Moore on June 20, Brown
on June 27, and Taylor on August 20. See ECF Nos. 1,
10, 21. Sweeney was not arrested until January 24, 2019,
after a superseding indictment charged him with the same
crimes. See ECF Nos. 30, 33. On March 7, the
prosecution brought another superseding indictment, this time
charging Defendants with Kidnapping Resulting in Death - an
offense that could have made them eligible for the death
penalty - and First-Degree Murder. See Superseding
Indictment at 2-6. The case has been largely on hold the past
several months while the Department of Justice considered
whether to seek the death penalty. On June 13, 2019, this
process wrapped up, and the Government informed the Court
that it would not pursue the death penalty against any
Defendant. See ECF No. 58.
intervening months, however, a number of issues have arisen
related to the circumstances of Defendants' detention. As
mentioned, all four have been held pending trial.
See ECF No. 5 (Moore Detention Mem.); Minute Entry
of 8/3/2018; ECF No. 24 (Taylor Detention Mem.); Minute Entry
of 1/24/2019. The U.S. Attorney's Office acknowledges
that, from the time of their arrests, it has asked DOC to
keep them separated. See ECF No. 54 (Opp. to Mot. to
Vacate) at 2. Defendants say that Moore, Taylor, and Brown
were nevertheless housed together in general population at
the D.C. Jail from August 2018 until January 2019.
See ECF No. 44 (Taylor Mot. to Vacate) at 2; ECF No.
52 (Moore Mot. to Vacate) at 1. On January 17, 2019, DOC
transferred Taylor to CTF. When Sweeney was arrested one week
later, he was also placed there. See Moore Mot. at
1. At subsequent status conferences, counsel for Taylor and
Sweeney informed the Court that their clients had been placed
in protective custody - effectively, solitary confinement -
because CTF was not a maximum-security facility and could not
otherwise detain them. See Taylor Mot. at 2-4, 7.
Back at the D.C. Jail, Moore and Brown were housed on
separate floors and kept apart. See Moore Mot. at 3.
with concerns about Taylor's and Sweeney's form of
detention, the Court directed their counsel to work with the
prosecution and DOC to see if these issues could be resolved
without judicial intervention. Finding no success on that
front, Taylor thereafter filed a motion to vacate the
separation order, as he believed that order had led him to be
placed in protective custody while at CTF. See
Taylor Mot. at 5-7. The Government did not oppose the Motion,
which the Court granted. See ECF No. 51 (Order on
Taylor Mot.). It is unclear how Taylor and Sweeney have been
housed since the Court's order, but they presumably are
no longer in isolation at CTF.
has now filed a similar Motion. Unlike Taylor, however, he is
not in protective custody. Instead, Moore complains that the
separation order prevents him from moving around the Jail
while Brown is moving, which inhibits his access to the law
library and complicates his ability to meet with counsel.
See Moore Mot. at 2. This time, the Government has
filed an Opposition, arguing that the separation order is
justified by both the prosecution's concerns about
collusion among Defendants and the security of witnesses and
that it imposes little burden on the conditions of
Moore's pretrial detention. See Opp. at 2.
Motion, Moore posits that the separation order and
concomitant restrictions on his movement at the Jail violate
his due-process rights. See Moore Mot. at 3 (citing
Bell v. Wolfish, 441 U.S. 520, 539 (1979)).
“[W]here it is alleged that a pretrial detainee has
been deprived of liberty without due process, the dispositive
inquiry is whether the challenged condition, practice, or
policy constitutes punishment.” Block v.
Rutherford, 468 U.S. 576, 583 (1984). The Court's
task in applying this standard is to determine “whether
the disability is imposed for the purpose of punishment or
whether it is but an incident of some other legitimate
governmental purpose.” Bell, 441 U.S. at 538.
Government restrictions taken with an “expressed intent
to punish” clearly constitute punishment. Id.
So do actions that, while not taken with such intent,
“are not ‘rationally related to a legitimate
nonpunitive government purpose' or . . . ‘appear
excessive in relation to that purpose.'”
Kingsley v. Hendrickson, 135 S.Ct. 2466, 2473 (2015)
(quoting Bell, 441 U.S. at 561) . A pretrial
detainee thus can prevail if she either introduces evidence
of a subjective intent to punish or demonstrates that a
restriction is objectively unreasonable or excessive relative
to the Government's proffered justification. Id.
due-process protections just discussed derive from the
substantive branch of the Due Process Clause. See
Block, 468 U.S. at 593-94 (Blackmun, J., concurring).
Since pretrial detainees “retain at least those
constitutional rights . . . enjoyed by convicted prisoners,
” Bell, 441 U.S. at 545, however, they
maintain other constitutional protections as well. The
procedural component of the Due Process Clause, for one,
prevents the Government from taking actions that
“impose atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison
life” absent certain procedural protections -
viz., “notice and an adequate opportunity to
be heard.” Wilkinson v. Austin, 545 U.S. 209,
218, 223 (2005) (citation omitted); see also Williamson
v. Stirling, 912 F.3d 154, 181 & n.20 (4th Cir.
2018). In addition, the Eighth Amendment's prohibition on
cruel and unusual punishment - while not applicable on its
terms to pretrial detainees - establishes a separate
constitutional floor. See City of Revere v. Mass. Gen.
Hosp., 463 U.S. 239, 244 (1983). The Government flouts
this guarantee if it imposes conditions of confinement that
create “a sufficiently substantial ‘risk of
serious damage to [the inmate's] future
health'” and acts with “knowing
disregard” of such risk. See Chandler v. D.C.
Dep't of Corrections, 145 F.3d 1355 (D.C. Cir. 1998)
(citation omitted). Since Moore does not invoke these other
protections, no more needs to be said about them here.
does argue that the separation order violates substantive due
process, and that is because it is unsupported by any
legitimate governmental objective and thus could only have
been implemented for the purpose of punishment. See
Moore Mot. at 3-4. In response, the Government asserts that
separation is warranted in this case “to prevent the
defendants from engaging in further collective action that
might put people in danger, including coordinating efforts to
obstruct justice such as through attempts to intimidate
witnesses and falsely coordinate defenses.” Opp. at 2.
The Court's inquiry, discussed above, can be broken into
two steps. The first addresses whether the restriction is
supported by a “legitimate nonpunitive governmental
purpose.” Bell, 441 U.S. at 561. The Court
believes that it is. In a multiple-defendant homicide case,
the prosecution's concerns about improper collusion are
neither irrational nor illegitimate. It is not clear that
Moore disagrees. Rather than challenge the legitimacy writ
large of such concerns, he contends that they lack
evidentiary foundation in this case. See Moore Mot.
at 3-4. But this argument goes to the next step of the
analysis, at which the Court will consider whether the
asserted governmental objective actually justifies the
restriction being challenged.
to that issue, the Court must decide whether the restriction
is not “reasonably related” or is
“excessive in relation” to that purpose. See
Bell, 441 U.S. at 538-39. Moore argues that this is so
because there is no evidentiary basis supporting the
prosecution's only proffered justifications. This
argument, while perhaps persuasive in the context of more
substantial restrictions on confinement, does not carry the
day here. When deciding whether a restriction is not
reasonably related to - or is excessive relative to - the
Government's justification, the Court must consider the
strength of that justification in the context of the
case and then weigh that consideration against the
harshness of the restriction. See Block, 468 U.S. at
585-87. In challenging the evidentiary foundation of the
prosecution's concerns, Moore disputes the strength of
the governmental interest at the first of these steps. So
far, he is on solid ground, as the Court shares some his
qualms on this issue. Up to this point, the prosecution has
submitted very little information regarding potential risks
of collusion or harm to witnesses. The best it comes up with
are equivocal allegations that friends or family members of
certain Defendants - but not Moore - had a verbal altercation
outside the courtroom that “may be connected” to
a stabbing that took place later that day. See Opp.
at 2-3. Further undercutting the seriousness of the
Government's concerns is the fact that three Defendants
were apparently housed together in general population at the
Jail for more than four months. See Moore Mot. at 1.
Moore loses his footing, however, is at the subsequent
weighing step. He appears to suggest that the
absence of much evidence supporting the Government's
justification necessarily invalidates the restrictions on his
movement, no matter how minor. Id. at 3. That is not
the case. The proper inquiry weighs the harshness of the
restriction against the magnitude of the prosecution's
concerns, even if such concerns are only weakly present.
See Block, 468 U.S. at 585-87. Applying that
standard here, the Court finds that the more general concerns
attending cases like this one - i.e., a
four-co-defendant homicide - combined with the facts (though
scant) the prosecution offers about possible violence to
witnesses and unlawful collusion, are enough to support the
minimal restrictions on Moore's confinement. Indeed, as
of now, the actual restrictions Moore alleges -
viz., the brief limits on his movement while Brown
moves around the Jail - more closely resemble inconveniences
than impingements on liberty. See Bell, 441 U.S. at
538-39; see also id. at 539 n.21 (“There is,
of course, a de minimis ...