In an unpublished opinion issued on May 2, 2024, the Court of Appeals of Washington ruled that a prisoner found guilty of possessing a weapon was denied due process because the disciplinary finding was not supported even by “some evidence”—the low bar set in such situations. In this case a hearing officer added language to the disciplinary regulation in order to find the prisoner guilty of the infraction.

After a guard was stabbed at Washington State Penitentiary on April 30, 2021, an emergency response team (ERT) of state Department of Corrections (DOC) guards searched the Victor Unit in another part of the prison. In Jeffrey Driver’s cell, ERT guards Gary Bafaro and Stephen LaForce found a state-owned broom handle leaning against the wall. Driver was issued a disciplinary report accusing him of violating a rule prohibiting prisoners from “[p]ossessing, manufacturing, or introducing any firearm, weapon, sharpened instrument, knife, or poison, or any component thereof.” See: WAC 137-25-030(1) (Category A, 602).

At a disciplinary hearing on May 17, 2021, Driver did not deny possessing the broom handle but said he was using it as a makeshift bar bell—weighted with bags of water in a shirt through the sleeves of which he threaded the broom handle. He offered to plead guilty to violating Rule 702, which prohibits “[p]ossessing, manufacturing, or introducing an unauthorized tool.” See: WAC 137-25-030(1) (Category C—Level 1, 702). But hearing officer G. Pierce rejected this offer, finding the prisoner possessed “a possible weapons component” and declaring Driver “[g]uilty of 602.” As a result, Driver’s extended family visits (EFVs) were suspended for five years. and he lost 30 days of good time.

Driver appealed to DOC headquarters and the Office of Corrections Ombuds (OCO). Both sustained the guilty finding; as OCO noted, only “some evidence” is required to support a prison disciplinary finding, per In re Pers. Restraint of Malik, 215 P.3d 209 (Wash. App. 2009). Undeterred, Driver filed his own personal restraint petition (PRP) in the Court on December 7, 2022, arguing that the guilty finding was not supported by sufficient evidence.

As also noted in Malik, a threshold analysis of a PRP challenge must show that a prisoner is being restrained unlawfully. Since Driver lost 30 days of good time, the Court said he met that burden, pointing to In re Pers. Restraint of Krier, 29 P.3d 720 (Wash. App. 2001). The “central issue” was whether this restraint was unlawful. For that, “the action taken [must be] ‘so arbitrary and capricious as to deny the petitioner a fundamentally fair proceeding,’” per In re Pers. Restraint of Gronquist, 978 P.2d 1083 (Wash. 1999) [quoting In re Pers. Restraint of Reismiller, 678 P.2d 323 (Wash. 1984)].

In turn, fundamental unfairness is demonstrated when the guilty finding is not supported by “some evidence.” That may be a modest standard, the Court allowed, but “it is not illusory”; there must be “some reasonable connection between the evidence and the inmate,” per In re Pers. Restraint of Anderson, 772 P.2d 510 (Wash. 1989). In Driver’s guilty finding, the broom handle was called a “possible weapons component.” However, Rule 602 does not prohibit possible weapons, the Court said, and nothing in the record supported a finding that it was an actual weapon.

DOC argued that the handle was not “impossible to be used as a weapon.” But the Court rejected this because “a conceivable potential based on hypotheticals detached from the facts is not evidence.” DOC may punish possession of “seemingly innocuous” items that a prisoner has altered to make more dangerous, but nothing in the record suggested that the broom handle had been altered, nor was there anything to refute Driver’s testimony that he used the broom handle as a makeshift bar bell. Thus, there was “some evidence” that Driver was in possession of a tool, but not a weapon. He had consistently offered this plea, but DOC rejected it, arguing that the broom handle was not a tool because the brushes were detached.

DOC was therefore ordered to vacate Driver’s Rule 602 guilty finding, restore his good time credits and reinstate his EFVs. DOC was also prohibited from charging Driver with having an unauthorized tool, in violation of Rule 702.

Though DOC agreed that the Court likely had authority to award fees for Driver’s appointed attorney, Erin I. Moody of Nielsen, Kock & Grannis, PLLC in Seattle, the prisoner didn’t ask for fees so as not to delay restoration of EFVs with his son. Recognizing that this motivated “his dogged pursuit of review in this case,” the Court agreed not to impose fees against DOC. See: In re Pers. Restraint of Driver, 2024 Wash. App. LEXIS 906.