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Lawsuit against Durham County Sheriff’s Office over jail policy records continues despite hurdles

A lawsuit filed by Triangle civil rights group Emancipate NC says that the Durham County Sheriff’s Office isn’t being transparent about key jail policies.
Aaron Sánchez-Guerra
A lawsuit filed by Triangle civil rights group Emancipate NC says that the Durham County Sheriff’s Office isn’t being transparent about key jail policies.

The public has a right to know how people incarcerated within the Durham County Detention Center are being treated, a recent lawsuit argues.

The civil rights group Emancipate NC filed the lawsuit, which says the Sheriff’s Office isn’t being transparent about key jail policies regarding things such as censorship of detainee mail, restraint devices, housing and use of force.

A Durham County Superior Court judge denied a motion Monday that would have forced the Sheriff’s Office to soon release unredacted jail detention policy documents.

But the lawsuit will have another chance in the courts to reach a mediation process. That’s because the county’s motion to have the case dismissed was also denied.

The Durham County Sheriff’s Office was sued in January after numerous attempts to request the jail’s policy manual without censored information, particularly regarding detainee treatment.

For example, some jail records were disclosed but omitted details like a list of detainee restraining devices, procedures relating to restraint chair use, and detainee’s access to journalists.

As part of the Civil Legal Assistance Clinic at the University of North Carolina, law students John Schengber and Nikolai Wise represented Emancipate NC’s case in court.

“We have been deprived of actually viewing the policies that matter the most,” Schengber said. “Ultimately, these are Durham County community members who are being held in the jail and confined under a system that is not very transparent.”

Monday’s motion for a preliminary injunction would have compelled the release of unredacted records on the basis that “irreparable harm” was being caused by a lack of transparency in the jail, Shengber argued.

The Sheriff’s Office is in violation of the North Carolina Public Records Act, said Elizabeth Simpson, an Emancipate NC attorney and UNC law professor.

“The judge will really need to take a look at the policies in an unredacted form to be able to form an opinion about whether the redactions that the Sheriff's Office made are authorized under law or not,” Simpson said.

The lawsuit alleges that some detainees have been confined for up to 21 to 23 hours a day — a complaint also echoed in a 2023 open letter to Durham law enforcement leaders, which more than 350 people signed.

Part of their argument is that Mecklenburg and Buncombe counties released the same jail policies without redactions.

Durham County's defense

Durham County attorney Curtis Massey argued in court that making such records public could pose a security risk.

“You put it out there, then it lets people examine those policies and look for flaws, look for loopholes, how could they exploit it, whether for escapes, contraband or attacks even within the facility,” Massey said.

Massey cited a statutory exemption in public records laws that can exempt law enforcement from releasing some records regarding its jail operations.

In response, Schengber said that he believes redacting information to sensitive security information is likely justified, although they dispute the redaction of detainee treatment policies.

Sheriff's Office spokesperson AnnMarie Breen said that their redactions of the jail policies are related to "detainee or inmate movement, transports, keys, locks, and other similar information."

Six of 61 policies released in records requests were "substantially redacted."

"As counsel for Sheriff Birkhead stated, this type of information should not be publicly available for detainees, inmates or their accomplices to strategize to smuggle contraband into the facility," Breen said in a statement. "These are legitimate safety and security concerns."

Durham Sheriff Clarence Birkhead hasn’t responded to Emancipate NC’s complaint and will have until June 6 to do so.

Aaron Sánchez-Guerra covers issues of race, class, and communities for WUNC.