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State begins its appeal of officer's rehiring

July 16, 2004|by PEPPER BALLARD

HAGERSTOWN

pepperb@herald-mail.com

An administrative appeal of a case that has placed a former prison correctional officer and The Maryland Department of Public Safety and Correctional Services at odds over nude photos and First Amendment rights was heard Thursday in Washington County Circuit Court.

Assistant State's Attorney General Scott S. Oakley, representing the state prison agency, argued that an administrative law judge erred in November when he ruled that former correctional officer Marcie Betts' First Amendment right to publish pictures of herself overruled the impact those images might have on the state's ability to safely run its prisons.

The Department of Public Safety and Correctional Services has since asked Administrative Law Judge D. Harrison Pratt to stay his order that it rehire Betts.

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Oakley said the ruling did not take into account the testimony of prison officials, who testified the pictures posed safety concerns for Betts and other officers. He said that Pratt dismissed the state's concerns because the prison didn't ask Betts whether she had ever posed nude.

"There is so much about this decision to criticize," Oakley said.

Betts' attorney, Lawrence G. Walters, argued that Pratt was right to rule in favor of his client's First Amendment rights, saying that the ruling "involved protected speech and that was the sole reason for the determination."

Betts, 23, of Hagerstown, was fired from her job as a correctional officer at Roxbury Correctional Institution near Hagerstown on Jan. 29, 2003, after prison officials discovered that nude pictures of her had been published on a Web site and in a tattoo magazine. The magazine was found in a prison housing unit a few days before she was suspended. She worked as a guard for eight days.

"No big flags before she gets there, no big flags when she was gone, but during that eight-day period there was quite a ruckus," Oakley said.

She sold 81 pictures to the Web site for $300 in June 2002, months before she was hired as a guard and before she had undergone basic training for the position.

Walters argued that the tattoo magazine was confiscated before it made it into inmates' hands. The state's argument that Betts was seen by the inmates as a "sex object" is not a viable argument "in 2004," Walters said.

After Oakley argued that the photos could have gotten into the prison, causing problems among staff and inmates there, Washington County Circuit Judge Donald E. Beachley asked him how he would argue the case against Betts if she had instead painted her face black and performed "female Al Jolson impressions."

Beachley was referring to Berger v. Battaglia, in which an off-duty police officer performed blackface Al Jolson impressions. The court held that, while some officers found the expression offensive, it was too far removed from the police officer's duties.

Oakley said that he would present expert professionals who would testify that in a prison setting, it would present a problem.

When Beachley told Oakley that if he were standing in Baltimore City District Court, he would be asked if he knew Berger v. Battaglia, Oakley responded by saying, "I'd have a long row to hoe."

Oakley said, "Prisons are a universe unto" themselves. "The normal rules outside, they don't apply inside."

After Oakley finished his argument, Walters said, "If my opposition has a long row to hoe in Baltimore City District Court, he'd have a long row to hoe here because the First Amendment of the Constitution applies to all courts in this land."

Beachley said his ruling will not come quickly.

"This is obviously a very complex matter that obviously the federal courts have struggled with," he said.

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