Free Response to Motion - District Court of Arizona - Arizona

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Daniel P. Struck, Bar #012377 Rachel L. Halvorson, # 019881 J ONES, S KELTON & H OCHULI, P.L.C. 2901 North Central Avenue Suite 800 Phoenix, Arizona 85012 Tel.: (602) 263-7323 Fax: (602) 200-7811 E-Mail: [email protected] Attorneys for Corrections Corporation of America IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA UNITED STATES OF AMERICA, Plaintiff, v. RESPONSE TO DEFENDANT ROBERT McKAY'S MOTION FOR PROTECTIVE ORDER NO. CR-03-1167-16 PHX-DGC

ROBERT McKAY, 13 Defendant. 14 15 16 17 18 19 20 21 22 23 24 25 26 Corrections Corporation of America (hereinafter "CCA") through counsel, hereby responds to Defendant Robert McKay's Motion for Protective Order and requests that this Court deny his motion for the reasons that McKay's rights have not been violated and as the Warden of a prison, Bruno Stolc must have the ability to question any inmate or detainee regarding internal operations of the prison, in order to maintain the care, custody and control of the facility. In his motion, Defendant Robert McKay requests that this Court issue an order "directing the ATF and CCA/CADC and all Government employees to cease and desist from any and all communications with M r. McKay but for inquiry as to his name and identification number." This request is predicated on "counsel's /// ///

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belief that these types of communications have been at least influenced, if not directed, by the ATF and its [sic] ongoing investigation of this case." Defendant files this motion despite having received correspondence from counsel for CCA, assuring that McKay's rights were not being violated and that the Warden must investigate incidents and activities which occur at his facility in order to maintain the safety and security of his staff, the inmate and detainee population and the general public.1 Counsel for Defendant is incorrect in her belief that communications between the CCA staff and her client are "influenced" in any way by the ATF or the AUSA. Moreover, counsel for Defendant is also mistaken in her assumption that the warden of a prison is not allowed to question inmates or detainees about internal prison operations. Courts must give deference to prison administrators due to the importance of maintaining an often volatile prison population in a manner which ensures the safety and security of staff, inmates and the general public.2 As Warden of CADC, Bruno Stolc is charged with the care, custody and control of the inmate and detainee population, and the safety and security of the prison, including the

See June 6, 2005 correspondence from Daniel P. Struck to Barbara Hull attached hereto as Exhibit 1, and June 14, 2005 correspondence from Daniel P. Struck to Barbara Hull, attached hereto as Exhibit 2. See Whitley v. Albers, 475 U.S. 312, 321-22, 106 S.Ct. 1078 (1986) (holding prison officials should be accorded wide-ranging deference in the adoption and execution of policies necessary to preserve internal order and maintain institutional security); Turner v. Safley, 482 U.S. 78, 85, 88, 107 S.Ct. 2254 (1987) (finding deference is accorded to prison authorities in order to avoid" hamper[ing] their ability to anticipate security problems and to adopt solutions to the problems inherent in the operation of prisons). 2
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general public, staff and inmates. 3 In order to accomplish this, prison officials must at times question inmates and detainees in relation to incidents which occur within the facility. Prison officials must also be aware of and track the activities of security threat groups (STG) which are operating within the prison. Security threat group activity is one of the most serious challenges to maintaining the safety and security of a prison in the United States today. Defendant Robert McKay is a verified member of the Hell's Angels, one of the STGs operating in most prison's in the United States today, including CADC. STGs such as the Hell's Angels, if unchecked, create havoc within a prison, including introducing illegal contraband into the facility, enforcing their will on other inmates and detainees through violence and intimidation and making the facility unsafe for inmates, staff and any member of the general public who may be visiting the prison. Indeed, Defendant McKay has admitted to being the "Sergeant at Arms" for the Hell's Angels. It is imperative, therefore, that the Warden and his staff be allowed to question Defendant in order to track the activities of this STG in the facility. The Warden has not been directed by the ATF, the AUSA or any other federal agency to question Defendant McKay about his criminal case or for any other reason. Defendant McKay has never been questioned by Warden Stolc or any other employee in order to obtain admissions for his criminal case. In addition, Defendant McKay was not questioned by a CCA gang enforcement officer on September 28, 2005, and has not been placed in lockdown in retaliation for not responding to questions. Moreover, Defendant M cKay has been properly placed in general population with other detainees of a similar security level. In short,

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See Affidavit of Bruno Stolc attached hereto as Exhibit 3. 3

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Defendant has not been deprived of any privilege that other general population inmates enjoy. In sum, CCA respectfully requests the Court deny Defendant McKay's motion. The Warden and his staff must be allowed to question inmates and detainees at CADC in order to safely run the facility. The Warden and his staff have never been asked by ATF or the AUSA to obtain "admissions" from Defendant McKay. Any questioning of McKay was done at the direction of the Warden for the purpose of maintaining the safety and security of the facility. Respectfully submitted this 11th day of October, 2005. J ONES, S KELTON & H OCHULI, P.L.C.

By

s/ Daniel P. Struck Daniel P. Struck Rachel L. Halvorson 2901 North Central Avenue Suite 800 Phoenix, Arizona 85012 Attorneys for Corrections Corporation of America

CERTIFICATE OF SERVICE I hereby certify that, on October 11, 2005, I electronically transmitted this Response to Motion for Protective Order to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the CM/ECF registrants listed below, and will have a copy of the Response to the Motion for Protective Order delivered to the Clerk's Office for delivery to Judge Campbell's chambers on October 11, 2005.

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CM/ECF Registrants: Barbara L. Hull, Esq. Timothy Duax, Esq.

Non-Participant in CM/ECF:

s/ Carol S. Madden

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