Rikers guard sues after being forced to strip during drug search

Correction Officer Elio Soto claims he was subjected to a series of searches by his supervisors while on the job, including a squat-and-cough test to see if he was carrying drugs. Soto says that none were found and that his car was also searched.

BY GINGER OTIS ADAMS / NEW YORK DAILY NEWS
PUBLISHED: WEDNESDAY, JUNE 12, 2013

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Elio Soto, a correction officer on Rikers Island, is suing after he claims he was subjected to a humiliating strip search by his supervisors, where he was forced to squat and cough for a cavity inspection because they suspected him of smuggling contraband into the facility.

A man claims he was subjected to a series of searches on Rikers Island, including a humiliating naked probe during which he was ordered to squat and cough.

But what makes this allegation unusual is that the man being searched for drugs is a city correction officer. And the people doing the searching were his supervisors.

“I’m an officer, not an inmate, but they treated me like I was one,” said Correction Officer Elio Soto, a soft-spoken father of three with five years on the job.

Soto, 35, plans to file a lawsuit in Manhattan federal court on Wednesday, accusing four supervisors of forcing him into “debasing and illegal” contraband searches while he was on duty Jan. 17. Nothing was found.

“I was upset and embarrassed,” said Soto, who joined the Correction Department in 2008.
Robin Campbell, a Correction Department spokesman, confirmed there was a “staff” search in January, but said it was within the agency’s rights.

Soto said that his supervisors also search for contraband in his car, but that tthe search came up empty.

“It was based on reasonable suspicion and sound legal authority and was done in a careful manner that fully respected the rights of all involved,” Campbell said.

The alleged violators include a warden, two captains and an assistant deputy warden, according to a copy of the complaint obtained by the Daily News.

According to Soto’s complaint, his troubles started during a routine search of inmate jail cells around 4:30 p.m. at the Anna Kross Center on Rikers. One of the supervisors working with drug-sniffing dogs said the pooch reacted to Soto. The correction officer was asked if he had contraband. He told a supervisor that he did not.

Soto was told to empty his pockets, which contained nothing but a small tube of prescribed non-narcotic ointment for a fungal infection, Soto said.

When the inmate searches were done at 8 p.m., Soto was brought to the warden’s office and again asked to empty his pockets, the complaint says. When that failed to produce contraband, the supervisors brought the dogs back in and searched him twice more, Soto said.

‘First, I wanted to show that I was innocent. I was doing nothing wrong,’ Soto said. ‘But second, if you say no to an order it’s an automatic suspension.’

They found nothing — but instead of letting him go, supervisors ordered him to strip, the complaint says.

“I asked the captain if he’d ever done this to a correction officer before, because he’s been on the job a long time, and he said no,” Soto recalled.

Soto was told to squat and cough to show he wasn’t hiding anything in his rectum. He was allowed to get dressed and leave only after a search of his car. Supervisors again found nothing.

The searches violate his Fourth Amendment rights, which guard against unreasonable searches and seizures, according to Soto’s attorney, Howard Wien.

Union officials were outraged.

“I have never had someone take one of my members into the warden’s office in front of captains and tell them to take off his clothes,” said Norman Seabrook, head of the Correction Officers Benevolent Association. “It is unacceptable.”

Soto, who earns $80,000 a year, said he didn’t think he could say no to the searches.

“First, I wanted to show that I was innocent. I was doing nothing wrong, but second, if you say no to an order it’s an automatic suspension,” he said. “I can’t lose this job. I have a family to feed!”

OATH Judge Rules On Behalf of a Correction Officer
By MARK TOOR | Posted: Monday, June 10, 2013

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The Department of Correction failed to prove that an encounter between a Correction Officer and an inmate was not a use-of-force incident, and therefore charges that the CO filed a false report should be dismissed, the Office of Administrative Trials and Hearings ruled May 31.

“If nothing else, this case presents quite an anomaly in that the majority of use-of-force cases brought before this tribunal revolve around an officer’s failure to report s/he used force on an inmate,” Administrative Law Judge Ingrid M. Addison wrote in her decision. “In stark contradiction here, [the CO] reported that she used force and the department essentially asserts that her report was an elaborate concoction.”

Water Thrown on CO

CO Sedina Norris, a 17-year member of DOC who was represented by Andrew Rowe of Isaacs, Devasia, Castro & Wien LLP, said an inmate she had reported for an infraction threw a bucketful of water at her and cursed her.

The ruling said she testified that when she pointed to the inmate in the presence of her supervisors, he “charged towards her. She instinctively threw a punch, which made contact, and was ordered to step back” by two Captains who proceeded to handcuff him.

Afterwards, wearing wet shoes, she slipped on the floor and injured her hand and shoulder. She was out sick for 46 days. DOC contended that she had lied about using force in order to justify the sick leave.

Ms. Norris did not file the use-of-force report until she was out on leave, and Captains involved in or investigating the incident had not reported that force was used. The report filed by Ms. Norris triggered a blizzard of paperwork minimizing any use of force. And that apparently led DOC to charge Ms. Norris with filing a false report.

Ms. Addison wrote that even after reading the reports and hearing testimony from many of the officers involved, “it is not entirely clear to me what occurred.”

‘A Good Officer’

She noted “areas of conflict” among the various statements and reports of the Captains involved. Further, she wrote, “I find it bizarre to suggest that 46 days of sick leave would motivate a seemingly good officer to concoct an elaborate scheme in which she accused herself of using force against an inmate, and implicated the Captains as witnesses.”

Attorneys representing DOC at the OATH hearing may make a final comment before DOC makes its decision on the charges.

“I’m very pleased with the ALJ’s determination in this case,” said COBA President Norman Seabrook. “This is yet another example of the way the DOC continues to usurp the legal rights of the men and women who patrol the toughest precincts in New York. If they would prosecute inmates as vigorously as they continue to prosecute Correction Officers, we might have less violence in the city’s jails.”

Rule Nassau Can’t Set Time Limit On COs Trading Shifts
THE CHIEF-LEADER

By MARK TOOR | Posted: Monday, February 25, 2013 5:00 pm

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Nassau County cannot unilaterally restrict its Correction Officers from participating in shift swaps that occur more than three months apart, the Public Employment Relations Board ruled in a decision that the union’s lawyer said could signal a change in the way management-rights clauses are interpreted.

For more than 20 years, the county had a written policy allowing officers of the same rank to exchange shifts so they could work out preferred days off. But early in 2011, the county ordered that such shifts could not be separated by more than three months. An Administrative Law Judge found for the county, but the union appealed to the full board, which reversed the ruling Feb. 5.

‘Better for Agency, Too’

“Allowing Correction Officers to perform voluntary shift exchanges with other officers, and not limiting them to a short three-month-window period, frees up the officer to schedule more time off to spend with his family and loved ones throughout the year,” said John Jaronczyk, president of the Nassau County Sheriff’s Correction Officers Benevolent Association. “This is a huge morale boost for the COs, and it actually is a cost savings to the department since the officers are arranging their own shift exchanges, saving the Sheriff from having to pay costly overtime to replace the officer.”

An attorney for the union, Liam Castro of Isaacs, Devasia, Castro & Wien LLP, said this was a major victory for the union.

First, he said in an interview, “PERB overruled its own Administrative Law Judge, which I think is always remarkable.”

Second, he said, the board went against a trend in which management-rights clauses are interpreted broadly to give managers more power. The county argued that because the contract included no language on shift exchanges, and swapping of shifts is a mandatory subject for negotiation, the union had no right to object to the new restrictions.

‘A Clear Distinction’

But according to the PERB ruling, when the management-rights clause is read in conjunction with other language concerning shifts, “it is not reasonably clear that the management-rights section was intended to apply to employee shifts or shift exchanges between [union] employees. To the contrary, the agreement demonstrates that the parties have drawn a clear distinction between the county’s right to regulate work schedules and the applicable procedures and rights relating to employee shifts.”

PERB decided that in the absence of clearer language, the county could not make changes that touch on a mandatory subject of bargaining without negotiating with the union.

“The management-rights clause has been read more broadly than it should have been in other cases,” Mr. Castro said. “The Administrative Law Judge’s ruling is an example of this…We think this decision is the beginning of stopping that.”

“The county is appealing PERB’s decision,” said Elizabeth J. Loconsolo, a spokeswoman for the Nassau County Correctional Center. The appeal will be handled by State Supreme Court.

Mr. Jaronczyk said morale among COs “is at an all-time low.” He told THE CHIEF-LEADER this was because the state control board overseeing Nassau County’s finances had frozen public employees’ salaries since 2011, meaning some COs hired around that time have been stuck at $30,000. A Federal Judge recently ruled in a suit filed by three police unions that the control board did not have the authority to freeze wages, but he stayed any change in pay until the county could appeal.

By MARK TOOR | Posted: Monday, February 25, 2013 5:00 pm

Nassau County cannot unilaterally restrict its Correction Officers from participating in shift swaps that occur more than three months apart, the Public Employment Relations Board ruled in a decision that the union’s lawyer said could signal a change in the way management-rights clauses are interpreted.

For more than 20 years, the county had a written policy allowing officers of the same rank to exchange shifts so they could work out preferred days off. But early in 2011, the county ordered that such shifts could not be separated by more than three months. An Administrative Law Judge found for the county, but the union appealed to the full board, which reversed the ruling Feb. 5.

‘Better for Agency, Too’

“Allowing Correction Officers to perform voluntary shift exchanges with other officers, and not limiting them to a short three-month-window period, frees up the officer to schedule more time off to spend with his family and loved ones throughout the year,” said John Jaronczyk, president of the Nassau County Sheriff’s Correction Officers Benevolent Association. “This is a huge morale boost for the COs, and it actually is a cost savings to the department since the officers are arranging their own shift exchanges, saving the Sheriff from having to pay costly overtime to replace the officer.”

An attorney for the union, Liam Castro of Isaacs, Devasia, Castro & Wien LLP, said this was a major victory for the union.

First, he said in an interview, “PERB overruled its own Administrative Law Judge, which I think is always remarkable.”

Second, he said, the board went against a trend in which management-rights clauses are interpreted broadly to give managers more power. The county argued that because the contract included no language on shift exchanges, and swapping of shifts is a mandatory subject for negotiation, the union had no right to object to the new restrictions.

‘A Clear Distinction’

But according to the PERB ruling, when the management-rights clause is read in conjunction with other language concerning shifts, “it is not reasonably clear that the management-rights section was intended to apply to employee shifts or shift exchanges between [union] employees. To the contrary, the agreement demonstrates that the parties have drawn a clear distinction between the county’s right to regulate work schedules and the applicable procedures and rights relating to employee shifts.”

PERB decided that in the absence of clearer language, the county could not make changes that touch on a mandatory subject of bargaining without negotiating with the union.

“The management-rights clause has been read more broadly than it should have been in other cases,” Mr. Castro said. “The Administrative Law Judge’s ruling is an example of this…We think this decision is the beginning of stopping that.”

“The county is appealing PERB’s decision,” said Elizabeth J. Loconsolo, a spokeswoman for the Nassau County Correctional Center. The appeal will be handled by State Supreme Court.

Mr. Jaronczyk said morale among COs “is at an all-time low.” He told THE CHIEF-LEADER this was because the state control board overseeing Nassau County’s finances had frozen public employees’ salaries since 2011, meaning some COs hired around that time have been stuck at $30,000. A Federal Judge recently ruled in a suit filed by three police unions that the control board did not have the authority to freeze wages, but he stayed any change in pay until the county could appeal.

By MARK TOOR

The head of the Correction Officers Benevolent Association expressed outrage last week over the $2-million bail set by a Criminal Court Judge for a CO charged with shooting his girlfriend’s ex-boyfriend.

“Never in my 20-plus years in law enforcement have I ever seen or witnessed such an outrageous miscarriage of justice in administering bail for someone accused of a crime who is a law-enforcement officer, sworn to uphold the Constitution of the State of New York,” said COBA President Norman Seabrook.

Wants Cuomo Involved

He called for action from Governor Cuomo, State Chief Judge Jonathan Lippman and Brooklyn District Attorney Charles J. Hynes.

Dale Moore, 32, who has worked for the Department of Correction for four years, was charged with attempted murder and first-degree assault after the shooting, which occurred while he was off-duty around 1 p.m. Jan. 8 in East Flatbush, Brooklyn. Some news reports characterized the situation as a love triangle.

Mr. Moore was riding in a Mercedes with his girlfriend, Correction Capt. Shalonda Smith, 36, when they encountered her former boyfriend, Kai Gates, 34, in his Cadillac SUV, according to reports. All three got out of their cars. A law-enforcement source told the New York Post that Mr. Moore warned Mr. Gates, “Don’t come any closer!” When he continued to move forward, Mr. Moore allegedly shot him twice. Authorities said Mr. Gates was unarmed. He remained hospitalized last week.

Correction Officers are permitted to carry guns but may not wear them in the jails.

Judge Sharen D. Hudson set bail at Mr. Moore’s arraignment. She was elected to Kings County Civil Court in 2011. Under the law, bail is not supposed to be a punishment for the accusation of a crime, but merely a way of ensuring that the defendant shows up in court.

Why It’s Excessive

Mr. Seabrook noted that Mr. Moore had “no criminal history, no criminal convictions, has ties to the community, was born and bred here and is authorized under the Constitution of the State of New York to possess a weapon and to protect himself after dealing with some of the most-violent individuals in the jail system, acting in self-defense and fearing for the security of his life and everyone around him.”

“A typical bail in these circumstances would be around $100,000,” said Michelle Esquenazi, president of the New York Association of Bail Bond Agents. She said that to get out of jail on $2 million bail a defendant would have to pay a bail bondsman a non-refundable fee of $150,000.

Mr. Seabrook said, “Every single day we witness these teenage terrorists who hold our communities, families and friends hostage with their illegal weapons and their disregard for public safety, including Correction Officers, EMS officers and you, the public. Yet the bail amount for these terrorists is set at a minimal amount of money, thereby enabling them to continue to destroy our city… If you count all the dead, innocent children who have been shot by their assailants in the city over the last year, those bail amounts don’t add up to $2 million.”

Calls for Special Judge

He called for Judge Hudson to be reprimanded. But that’s not all, he said, adding, “We are calling on Governor Cuomo and Chief Judge Jonathan Lippman to appoint an independent judge to deal with any further cases involving law-enforcement officers.”

David Bookstaver, a spokesman for the state Office of Court Administration, responded, “That suggestion implies that somehow law-enforcement officers should get special treatment when charged with a crime. The concept simply doesn’t make sense.”

Mr. Seabrook continued, “I’m also calling on DA Charles J. Hynes to re-evaluate the Assistant District Attorneys in his office on cases where Correction Officers are allegedly accused of a crime.”

Mr. Hynes responded, “In all cases involving homicide we oppose bail and request a remand. In this case when the defendant was arraigned, the unarmed victim, who according to three witnesses was shot twice by the defendant, was not expected to live. Our application for remand under these circumstances was completely appropriate. Judge Hudson refused our request and set $2-million bail.

“We have been informed that the victim’s condition has changed and he is likely to live. I would assume that the defendant’s attorney will make an application to review the bail conditions and at that time we will take a position on bail that we deem appropriate.”

UPDATE: New Judge Cuts Bail to $150,000

A second judge reduced bail for Correction Officer Dale Moore from $2 million to $150,000. More than 60 members of the Correction Officers Benevolent Association showed up in the courtroom at the hearing Jan. 11 to demonstrate support for Mr. Moore.

“This was the right decision that Kings County State Supreme Court Judge Sheryl L. Parker ordered in this matter,” COBA President Norman Seabrook said after the ruling. “As you have often heard me say—and it is an indisputable fact—even accused terrorists do not get slapped with a $2-million bail. This should never have happened in the first place.”

He commended Justice Parker for “her reasonable approach to the law” and thanked Mr. Moore’s attorney, Steven Isaacs of Isaacs, Devasia, Castro & Wien LLP.