According to Judge Steve Kim's opinion: Perez vs Engleman (CD Cal.), which was decided two months ago but was recently confirmed by District Judge George Wu.
Petitioner Jonatan Perez is a federal prisoner detained by the Bureau of Prisons (BOP). He lost 41 days of good behavior time credit after a BOP disciplinary decision found he obstructed or obstructed the following actions: Prison security and operations. The petitioner was identified in publicly available TikTok videos made on contraband cell phones that showed him and other inmates preparing, cooking, or eating contraband. [shown above -EV] Inside a low-security federal detention camp…
In interviews, suspected prisoners said it was “very easy and convenient” to bring contraband into the camp. “He used to be a chef,” the petitioner said, adding, “He would help cook within the property and help others prepare food.” …
However, explicit BOP regulations do not prohibit video recording or posting to social media. Accordingly, BOP investigators had to rely on a blanket regulation (here, Jail Code 199) that prohibits conduct that (a) disrupts or interferes with the security and orderly operation of a BOP facility and (b) is “most similar” to another. Actions expressly prohibited. Since cell phones or similar electronic devices essential for creating video content or posting to social media are of course prohibited within federal prisons, the petitioner and other inmates identified in the TikTok video were each accused of generally prohibited disruptive conduct, according to incident reports. Indicted. Such as possession, introduction or use of contraband that is expressly prohibited…
The petitioner filed suit, claiming there was not enough evidence to support discipline, but the court ultimately agreed with the prison.
First, there is no doubt that petitioner is one of the inmates who was seen in a TikTok video preparing and cooking lobster (undeniably contraband) while in BOP custody. It is also undeniable that someone in the camp (even if unidentified) used a contraband mobile phone to record a video of petitioner handling the lobsters. And while DHO is going on [Disciplinary Hearing Officer] The decision to remain silent during the UDC alone does not find petitioner guilty. [Unit Discipline Committee] Even during the proceedings, she could have drawn adverse inferences about the petitioner's negligence based on his silence when asked to admit or deny the allegations in those proceedings. Despite these facts, petitioner failed to meet his burden of proving under some very polite evidentiary standards that the DHO's decision was “so lacking in evidence” that it lacked a “factual basis” or that the decision was not “based on fact” . “Otherwise it’s arbitrary.”
To be sure, petitioner has consistently denied (and continues to deny) that he knew he was being recorded by his cell phone. For example, he claimed that someone could have secretly recorded themselves from afar using the zoom function of their camera phone. However, the DHO was not forced to accept that theory or blindly admit ignorance of the petitioner's claim that he was filmed while preparing the contraband. There was also no need for “hard evidence” that the DHO knew he was being filmed, as the petitioner argued. She said she only needed “some evidence.” And by that standard, the DHO could have objectively relied on camera angles that were clearly close to petitioner, as revealed in the incriminating video screenshots, to find that his professed ignorance of what was filmed was unreliable.
Of course, this is not the only permissible inference a DHO can draw from the screenshot (including for some of the reasons given by the petitioner). But federal due process “does not require evidence that logically precludes any conclusion other than that reached by the disciplinary committee.” Instead, what matters is whether the BOP's decision is reasonable, not whether it is right or whether a federal court would decide differently in the first place. From this perspective, it was objectively reasonable for the DHO to infer, based on documentary evidence, including video screenshots of incriminating faces, that petitioner was aware that he was recording with his cell phone.
However, the petitioner also challenged the DHO's finding that he “conspired” to produce or post the TikTok video itself. For example, he claims below that there is no evidence of “intentional participation” in the production of the video. And he also points out that there is insufficient evidence to even substantiate his knowledge of the video's apparent purpose – posting it online through the public TikTok platform. In petitioner's view, such intent or (at least) knowledge is necessary to find him guilty of obstruction. Because otherwise, a prisoner doing something innocent behind a prisoner's back would be guilty of that behavior every time he or she is passively filmed by someone else. Unless you consent to being filmed using a contraband device (or even if you happen to know about it).
However, contrary to petitioner's claims, there was no need to convict the DHO as it found that in addition to knowingly allowing illegal recordings of him preparing the contraband, he also knowingly planned or participated in the creation of public social media content. . Destructive behavior. First of all, there is nothing in Prison Regulation 199 that requires specific intent rather than general intent for an inmate to be found guilty of obstruction. And one more thing: Unlike the hypothetical inmate who was unconsciously videotaped engaging in innocent activities, petitioner did not film himself engaging in innocent activities. He was videotaped doing something expressly forbidden in prison: cooking and eating lobster.
It is important to maintain that the BOP cannot discipline an inmate for disruptive behavior for no reason other than that the inmate may have been captured on illegal video without his or her consent or knowledge while engaging in an authorized or innocent act. However, it is quite another to argue that the BOP cannot treat the preparation of contraband food as sabotage while knowingly filming it with a contraband device, unless the inmate intended to post the recording online or knew what the recording was. For later… Therefore, the BOP's discipline may be based on credible evidence that Petitioner knowingly participated in unauthorized video recordings, even if there was insufficient evidence that Petitioner knowingly assisted in the creation of the TikTok video or that he knew that his recordings would be posted online. The decision may still be upheld. While handling contraband, it is used as a contraband device…
Gwen M. Gamble represents the prison.