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Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
2-15-1995
Harris v City of Phila
Precedential or Non-Precedential:
Docket 93-1988
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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 93-1988
MARTIN HARRIS; JESSE KITHCART; WILLIAM DAVIS; RANDALL CUMMINGS;
EVELYN LINGHAM; ESTRUS FOWLER; TYRONE HILL; NATHANIEL CARTER
v.
THE CITY OF PHILADELPHIA;
JOAN REEVES, in her official capacity as Commissioner
of The Department of Human Services of the City of Philadelphia;
ALBERT F. CAMPBELL; ROSITA SAEZ-ACHILLA;
GENECE E. BRINKLEY, ESQ.; REV. PAUL M. WASHINGTON;
M. MARK MENDEL; HON STANLEY KUBACKI; MAMIE FAINES,
each in his or her official capacity as a member of the Board of
Trustees of the Philadelphia Prison System;
J. PATRICK GALLAGHER, in his official capacity as
Superintendent of the Philadelphia Prison System;
HARRY E. MOORE, in his official capacity
as Warden of Holmesburg Prison;
WILHELMINA SPEACH, in her official capacity
as Warden of the Detention Center;
PRESS GROOMS, in his official capacity as
Warden of the House of Corrections;
RAYMOND E. SHIPMAN, in his official capacity as
Managing Director of the City of Philadelphia; and
HON. EDWARD G. RENDELL, in his official
capacity as Mayor of the City of Philadelphia
Theodore Levine, Albert F. Campbell,
Rosita Saez-Achilla, Genece E. Brinkley, Esq.,
Rev. Paul M. Washington, M. Mark Mendel, Esq.,
Hon. Stanley Kubacki, Mamie Faines, J. Patrick Gallagher,
Harry E. Moore, Wilhelmina Speach, Press Grooms
Raymond E. Shipman, Hon. Edward G. Rendell
and the City of Philadelphia,
Appellants
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 82-cv-01847)
Argued September 14, 1994
Before: SLOVITER, Chief Judge, MANSMANN and
ALITO, Circuit Judges
(Filed February 15, l995 )
Mark A. Aronchick (Argued)
Gary A. Rosen
Randy Karafin Hubert
Hangley, Connolly, Epstein,
Chicco, Foxman & Ewing
Philadelphia, PA 19102
James B. Jordan
Office of City Solicitor
Philadelphia, PA 19102
John W. Morris
Philadelphia, PA 19102-4813
Attorneys for Appellants
Sarah B. Vandenbraak
Ron Eisenberg
Office of District Attorney
Philadelphia, PA 19102
Attorney for Amicus-Appellant Lynne Abraham,
District Attorney of Philadelphia County
Philip Lebowitz (Argued)
David Richman
Samuel J.B. Angell
Pepper, Hamilton & Scheetz
Philadelphia, PA 19103-2799
Attorneys for Appellees
OPINION OF THE COURT
SLOVITER, Chief Judge.
This is one of a group of appeals by the City of
Philadelphia and its officials responsible for the operation of
the Philadelphia Prison System (referred to collectively as City
of Philadelphia) from orders of the district court holding it in
contempt and imposing fines or stipulated penalties because of
its failure to comply with various provisions of consent decrees
or related orders designed to ameliorate the overcrowded
conditions in the Philadelphia prison system.
In a separate opinion filed today, we affirm the order
imposing stipulated penalties of $584,000 for the City's lengthy
delay in submitting a Facilities Audit and Ten-Year Plan which it
had undertaken to prepare as part of the Prison Planning Process,
the long-term solution to overcrowding. See Harris v. City of
Philadelphia, Nos. 93-1997, 93-2116, & 93-2117 (3d Cir. ,
1995) (Harris V). In the same opinion, we reverse the district
court's dismissal as a sanction of the City's Motion to Modify
the 1986 and 1991 Consent Decrees. In a second opinion filed
today, we affirm the finding of contempt and imposition of a
$125,000 fine for the City's failure to meet certain occupancy
standards in the substance and alcohol abuse treatment facility,
a program the City undertook as one of the short-term solutions
to the prison population problem. See Harris v. City of
Philadelphia, No. 94-1286 (3d Cir. , 1995) (Harris VI).
This appeal is from the finding of contempt and the
imposition of a $106,000 penalty for the City's unilateral change
in the procedure for designation of eligible pretrial detainees
for release, another of the short-term solutions to prison
overcrowding.
I.
BACKGROUND
The facts underlying these cases are set forth in
detail in Harris V, typescript op. at 5-9. Briefly, the
plaintiff class of inmates in the Philadelphia prison system and
the City entered into a Consent Decree approved by the district
court (the "1986 Consent Decree") to resolve the pending
complaint alleging unconstitutional prison overcrowding.1 The
City agreed that while it was working on a long term solution to
increase the number of prison facilities and beds, it would limit
the number of inmates in the current facilities. Thus, the 1986
Consent Decree set a maximum allowable population ("MAP") by
July 13, 1987 for the Philadelphia prison system of 3,750
inmates. The City agreed that if the inmate population exceeded
the maximum it would seek the release of pretrial detainees held
on the lowest bail or sentenced prisoners who had less than sixty
days remaining to serve on their sentences. App. at 93.
However, the 1986 Consent Decree expressly provided that the City
was not "to seek the release of any person whose release would
constitute an imminent threat to public safety or to the inmate's
own health, safety or welfare," or "any person charged with, or
convicted of, murder or forcible rape." App. at 93. If the MAP
were still exceeded, the City agreed to limit new admissions to
the prisons except for persons charged with or convicted of
certain enumerated offenses, hence its denomination as a
qualified admissions moratorium.
1
. See Harris v. Reeves, 761 F. Supp. 382, 384-90 (E.D. Pa.
1991) (recounting the history of the litigation and efforts to
alleviate overcrowding prior to the adoption of the 1991 Consent
Decree).
Despite the City's efforts between 1986 and 1988 to
reduce the prison population, the district court was advised that
on June 3, 1988 there were 3,981 inmates in the Philadelphia
prisons, 3,035 of whom were pretrial detainees. As a result, on
June 6, 1988 the district court ordered that the qualified
admissions moratorium agreed to in the 1986 Consent Decree go
into effect, with certain modifications. See Supp. App. at 1431-
34. This barred admission until the Philadelphia prison
population was within the MAP of any additional inmates except
for persons charged with murder, attempted murder, forcible rape,
attempted rape, involuntary deviate sexual intercourse,
corrupting the morals of a minor, arson, robbery, kidnapping,
aggravated assault, or a crime involving the use of a gun or
knife, or felony drug charges involving specified amounts of
narcotics. Supp. App. at 1431-32. The same order provided for
release of some inmates on city-provided bail but the court
stated that "[n]otwithstanding the agreement of the parties" it
would not "reduce the current population by releasing on parole
various categories of sentenced inmates." Supp. App. at 1433.
Thereafter, at the request of the District Attorney,
who had been granted objector status in the litigation, the court
entered a series of orders excepting additional categories of
defendants from the qualified admissions moratorium, including
those accused of domestic violence and abuse, intimidation of
witnesses or victims, those with two or more open bench warrants
on non-summary offenses, and those with narcotics offenses
involving lower quantities than those previously specified. See
Harris v. Reeves, 761 F. Supp. 382, 387 (E.D. Pa. 1991). Because
these modifications to the moratorium increased the prison
population, the court ordered certain "compensatory measures,"
including release of certain pretrial detainees. See id..
Nonetheless, the prison population continued to grow.
The court stated that it could "no longer, in good conscience,
allow the prison population to remain at this dangerously high
level," Supp. App. at 1296-1301, and by Order dated April 17,
1989 ("April 1989 Order") instituted new procedures for
additional release of pretrial detainees. Supp. App. at 1442.
This order required the City's Prison Management Unit ("PMU"), a
unit established by the City at court direction, to submit the
names of the inmates proposed to be released to the Special
Master and the District Attorney, who was to forward objections,
if any, to a listing to the Special Master within 72 hours. The
April 1989 Order listed the categories of pretrial detainees
eligible for release, and expressly provided that detainees
charged with the enumerated offenses and domestic violence and
abuse offenses were not to be released. Supp. App. at 1440-43.
These steps stabilized the prison population between
4,600 and 4,700 for a few months but it soon surged again. By
August 1990 the Philadelphia prison population had risen to
approximately 5000 inmates. See Supp. App. at 1385. By order
entered September 7, 1990 following a hearing, the court ordered
additional steps to reduce the prison population.2 In addition,
2
. The September 7, 1990 Order directed, inter alia, that
certified youth offenders not be admitted to the prisons and that
on September 21, 1990 the court increased the quantity of
narcotics charged against defendants excepted from the admissions
moratorium, see Supp. App. at 1447-48, and issued another order
detailing the provisions of the then-existing qualified
admissions moratorium and release mechanism. See App. at 100-08.
The population stood at 4,697 when the court approved a
new Stipulation and Agreement negotiated by the parties, which it
entered as an order on March 11, 1991 (the "1991 Consent
Decree"). The raison d'être for the 1991 Consent Decree was the
City's suspension of plans to build the 440-bed detention
facility required under the 1986 Consent Decree. The background
leading to the 1991 Consent Decree is discussed in the district
court's comprehensive opinion in Harris v. Reeves, 761 F. Supp.
at 382-89, approving the parties' Stipulation and Agreement as
reasonable. The 1991 Consent Decree effected a number of
measures, providing both long-term and short-term relief,
including, as relevant here, continuance of the qualified
admissions moratorium as set forth in the September 21, 1990
Order and modification of the release mechanism for pretrial
detainees. App. at 109-46. It is this release mechanism that
forms the basis for the dispute at issue here.
Paragraph 17(a) of the 1991 Consent Decree requires the
City to "designate and submit" to the Special Master the names of
inmates "who meet the criteria of Paragraph 4.E.(i)-(iii) of the
(..continued)
the City petition the state courts for early release of sentenced
inmates who were within sixty days of their scheduled release.
See Harris v. Reeves, 761 F. Supp. at 388.
September 21, 1990 Order which provides for the release of
[certain categories of inmates]."3 App. at 116. Those with
enumerated offenses ("murder, attempted murder, forcible rape,
attempted rape, involuntary deviate sexual intercourse,
corrupting the morals of a minor, arson, kidnapping, aggravated
assault, a crime of violence committed or attempted with a
firearm, knife or explosive, and escape from custody," and
certain domestic violence and abuse offenses) are not eligible
for release. App. at 116 (¶ 17(a)(2)) (incorporating by
reference ¶¶ 3A & B of September 21, 1990 Order, App. at 101-02.)
Paragraph 17(b) requires the City to submit to the
Special Master no fewer than thirty-five (35) names per day, at
least five (5) days per week, whenever the population is in
excess of 3,750. App. at 117. The names of "those designated
and submitted" by the PMU are to be provided to the District
Attorney who "then shall have seventy-two (72) hours to
communicate in writing . . . any alleged errors in application of
the release criteria . . . or any objections to the release of
any inmate based on considerations of public safety and supported
by substantial evidence." App. at 117 (¶ 17(d)).
3
. Paragraph 4.E.(1)-(3) of the September 21, 1990 Order
provided that "Release categories shall be: (1) a person
admitted to prison under prior orders of the court who is still
detained but who would not be admitted under this order as now
modified; (2) a prisoner held in default of the lowest amount of
percentage bail as necessary to reduce the population in all
institutions to the maximum allowable. If inmates considered for
release under this paragraph are held in default of equal amounts
of bail, preference shall be given to the inmate held the longest
time[;] (3) a person charged with offenses enumerated in
paragraphs 3A and B shall not be released pursuant to this
paragraph." App. at 104.
The Special Master, who is required to "direct the
release of all inmates who meet the criteria set forth in
Paragraph 17.a," App. at 117, has very limited discretion; he can
deny a petition "if, but only if," the District Attorney objects
to a particular release on public safety grounds and designates
another eligible pretrial detainee as a substitute. App. at 117
(¶ 17(e)). The City must comply with a release order within
twenty-four hours after receiving it. App. at 118 (¶ 17(f)).
The 1991 Consent Decree provides that the City may formulate and
submit to the court other criteria and procedures for release of
inmates as a possible alternative or concurrent mechanism. App.
at 124 (¶ 30).
After the District Attorney unsuccessfully sought to
block or delay effectuation of the 1991 Consent Decree by appeal,
the district court ordered the new release mechanism implemented
on November 25, 1991. In a memorandum dated December 6, 1991 to
the PMU and the City Solicitor, the Special Master summarized the
release procedures in place and noted that many of the inmates
for whom he would approve release orders would not be immediately
released. He explicitly referred, inter alia, to "the inmate
[who] has other holds such as detainers, sentence deferred cases,
or more serious charges" (hereafter referred to as "other holds")
as an example of an inmate who would be designated for release
but was not to be released. App. at 502. Such inmates would
"remain in custody until the other holds are disposed" of, i.e.
presumably until the more serious charge, which would be one of
the enumerated charges, was dropped or otherwise disposed of or
until inmates on detainer or writs were transferred to the
jurisdiction that issued them.
The 1991 Consent Decree contained a stipulated fine of
$100.00 a day for each inmate "who should be designated for
release in accordance with Paragraph 17 but is not so
designated." App. at 119 (¶ 19(b)(2)). But "[d]efendants shall
not incur fines . . . if they submit to the Special Master at
least thirty-five (35) names per day meeting the other
requirements of Paragraph 17, even if a greater number of inmates
meets the criteria set forth in Paragraph 17.a." App. at 119
(¶ 19(c)).
Between the weeks ending November 25, 1991 and June 29,
1992 the City included in its daily list of thirty-five names
pretrial detainees who had any charge that was eligible for
release under what has come to be known as "Harris v. Reeves
Sign-Own Bail" (generally shortened to "HvR-SOB"),4 even though
the detainee may have been subject to other holds or charges
which would prevent an immediate release. App. at 479. The
City's list of 175 names included inmates who were not eligible
for release at that time as well as duplicative names because
inmates were listed by charge so that a single inmate charged
with more than one non-enumerated charge could be listed several
times. Therefore, many fewer than the 175 listed were released.
4
. Under the "Sign-Own Bail" program the district court had
directed the City to post bail for certain inmates held in
default of bail, principally those with low designated bail or
held in prison for lengthy periods.
The effect of the procedure followed before July 1992 was to
reduce bail on those charges that were not excepted from release,
so that inmates with "other holds" could be released or
transferred to another jurisdiction as soon as the basis for the
"other hold" was cleared.
The events that gave rise to this particular contempt
action began in early July 1992 when PMU revised its procedures
in preparing the release lists following a meeting in the City
Solicitor's office between Jeanne Bonney, the Director of PMU,
and three members of the District Attorney's staff. There were
also subsequent communications between Bonney and James Jordan,
Chair of the Litigation Group of the City Solicitor's office, Ann
Pasquariello, a Deputy City Solicitor, and a Special Assistant to
the Mayor. App. at 482. Under the new procedure instituted, PMU
only listed inmates who were eligible for immediate release.
App. at 483. In addition, PMU stopped designating those
detainees who the City deemed to be "a danger to themselves or to
the community." App. at 483.
The new policy was formally defined in a memorandum to
PMU dated August 5, 1992 by the City Solicitor's representative,
Jordan, who directed that PMU list by defendants, not by charge,
stating
Please discontinue the prior practice of
listing by the charged offense irrespective
of whether the defendant in question is
absolutely ineligible for release under the
applicable criteria. Thus, you should not
list any defendant with any outstanding
charge or other matter which would disqualify
that inmate from release under the provisions
of the relevant Harris orders.
App. at 426. Jordan specified the following four categories of
detainees who had previously been listed and who were now not to
be listed for release: (1) those with "other holds," (2) those
with state or federal detainers who are being held on enumerated
offenses, (3) those not eligible for release on the face of their
charges, and (4) those who are a danger to themselves or to the
community. App. at 426-27, 485.
Jordan also notified the Special Master and counsel for
plaintiffs of the policy changes on August 5, 1992, stating, "I
have instituted these changes in policy based upon my careful
reading of the appropriate consent decrees, orders, stipulations
and opinions." App. at 530. Plaintiffs' counsel objected to
these changed procedures, and the Special Master notified the
court. App. at 525-29.5
In response to the plaintiffs' objections, on
September 24, 1992 the City Solicitor directed PMU to resume
listing all "persons who are a danger to themselves or the
community" but to submit those names separately under protest.
PMU has since submitted "under protest, pending modification of
the Decree," a "D" list with those inmates who need special
mental health treatment and a "B" list with those inmates held on
bail in excess of $75,000. App. at 440-41, 492-93.
5
. Starting the week of August 10, 1992, PMU prepared two lists
of inmates--one was the release list and the other was the list
of inmates who would have been designated before the change in
procedure instructed in Jordan's August 5 memorandum. App. at
486.
Director of PMU Bonney wrote a memorandum dated August
10, 1992 to Commissioner J. Patrick Gallagher and Deputy
Commissioner Thomas Costello predicting that as a result of the
City's change in procedure, there would be a substantial increase
in pretrial inmate days, PMU's costs for continuous research and
tracking would double, and that "at least 63 additional persons
will remain in custody each week for an additional 30 days: an
average 252 inmates per month, or 7,560 inmate days." App. at
552-53. In fact, during the weeks beginning August 10 through
September 28, 1992, the number of inmates submitted by the City
each week ranged from 45 to 101. App. at 493-94.
Plaintiffs filed a Motion on October 16, 1992 for
Contempt Sanctions Against Defendants for Failure to Comply with
the Court's March 11, 1991 Order. Supp. App. at 1501-14. The
parties submitted the matter for disposition on a Stipulation of
Facts and the deposition of the Director of PMU. The parties
stipulated that from the week of July 6, 1992 through the week of
November 16, 1992, the City would have listed 1,060 additional
detainees had it followed its previous listing practices. At the
hearing on contempt, the district court was visibly unimpressed
with the City's argument that because it had not violated a clear
and unambiguous provision of the consent decree, it should not be
held in contempt for its unilateral implementation of the changes
in procedures,6 App. at 689-712, but the court nevertheless
6
. The court stated "[i]t's not clear to me why the matter
wasn't raised with the Court before the action was taken if you
were in doubt as to what the obligations were." App. at 689.
entertained arguments from the parties and the District
Attorney's office on the proper interpretation of the provisions
for the release mechanism in the 1991 Consent Decree. See App.
at 669-732.
In a Memorandum and Order dated June 14, 1993 the
district court found the City in contempt of the 1991 Consent
Decree and imposed a $106,000 fine, $55,000 which was to be paid
forthwith. The fine was calculated on the basis of $100 for each
inmate not designated on each release list from July 6, 1992 to
November 16, 1992. The court ordered that the remainder of the
fine might not be imposed if the City submitted an alternative
plan to the release mechanism by July 30, 1993. The City paid
the $55,000 fine but did not submit an alternative plan to the
release mechanism and moved for reconsideration of the contempt
finding. On September 14, 1993, the district court implicitly
denied the motion for reconsideration and imposed the $51,000
balance of the fine. The City then filed a Motion Requesting
that Contempt Fines Not Be Imposed, which the court denied by a
Memorandum Opinion of February 16, 1994. The City appeals.
II.
DISCUSSION
A.
Applicable Legal Principles
The City makes three interconnected arguments on
appeal: first, that the district court failed to find that the
City violated a clear and unambiguous court order for the
implementation of the prisoner release mechanism; second, that
the 1991 Consent Decree does not in fact contain a clear and
unambiguous mandate as to the procedures the City was to follow
in implementing the prisoner release mechanism; and third, that
the district court's legal interpretation of the 1991 Consent
Decree was erroneous. Thus, the City seeks reversal of the
district court's order of contempt, remission of all penalties, a
declaration that the district court's interpretation of the
consent decree is erroneous, and a holding that the City may
continue to implement its revised release procedures.
The imposition of contempt is reviewed under an abuse
of discretion standard and will only be disturbed if there is an
error of law or a clearly erroneous finding of fact. United
States v. Sarbello, 985 F.2d 716, 727 (3d Cir. 1993). We
determine on a plenary basis whether the district court committed
an error of law. See Sansom Comm. by Cook v. Lynn, 735 F.2d
1535, 1539 (3d Cir.), cert. denied, 469 U.S. 1017 (1984).7
The relevant legal principles are not difficult nor in
dispute. Therefore, we need not pass through the litany of law
relating to the prerequisites for a finding of contempt, which we
have reviewed to the extent pertinent in our opinion today in
Harris V, typescript op. at 35-36. Instead, we concentrate on
the application of the principle that is at issue.
7
. In our other Harris opinions today, we discuss and reject the
City's argument that our review of a finding of contempt is
plenary. See Harris V, typescript op. at 21 & n.11; Harris VI,
typescript op. at 17 n.5.
Specificity in the terms of consent decrees is a
predicate to a finding of contempt, see Inmates of the Allegheny
County Jail v. Wecht, 754 F.2d 120, 129 (3d Cir. 1985), because
"a person will not be held in contempt . . . unless the order has
given him fair warning." See United States v. Christie
Industries, Inc., 465 F.2d 1002, 1006 (3d Cir. 1972). This is
reflected in the requirement of Fed. R. Civ. P. 65(d) that an
injunction "shall be specific in terms," and shall describe "in
reasonable detail" the act or acts sought to be restrained, a
rule also applicable to consent decrees. See Angela R. v.
Clinton, 999 F.2d 320, 325 (8th Cir. 1993).
The Supreme Court has held that persons may not be
placed at risk of contempt unless they have been given specific
notice of the norm to which they must pattern their conduct.
See International Longshoremen's Ass'n v. Philadelphia Marine
Trade Ass'n, 389 U.S. 64, 76 (1967); see also Granny Goose Foods,
Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 444 (1974);
Schmidt v. Lessard, 414 U.S. 473, 476 (1974); Gunn v. University
Comm. to End the War in Viet Nam, 399 U.S. 383, 388-89 (1970).
We have summarized the applicable law as follows: "In
order to cite a person for contempt for violating a court order,
two principles, each a corollary of the other, must, among other
requirements, be established. The first of these is that it must
be proved that the alleged contemnor had knowledge of the order
which he is said to have violated. The corollary of this
proposition is that the order which is said to have been violated
must be specific and definite." Eavenson, Auchmuty & Greenwald
v. Holtzman, 775 F.2d 535, 544 (3d Cir. 1985) (quoting In re
Rubin, 378 F.2d 104, 108 (3d Cir. 1967)). We explained that
these two principles are merged in the general statement that:
"An order may be so vague or indefinite that, even though the
alleged contemnor is chargeable with knowledge of such order, he
cannot be punished for doing what he did in view of lack of
certainty as to what it prohibited or directed." Holtzman, 775
F.2d at 544 (quoting Rubin, 378 F.2d at 108).
We decide on a plenary basis whether the consent decree
is ambiguous. See Fox v. United States Dep't of Hous. & Urban
Dev., 680 F.2d 315, 319-20 (3d Cir. 1982). The resolution of
ambiguities ought to favor the party charged with contempt. See
United States on behalf of IRS v. Norton, 717 F.2d 767, 774 (3d
Cir. 1983); Ford v. Kammerer, 450 F.2d 279, 280 (3d Cir. 1971).
In other words, a contempt citation should not be granted if
"there is 'ground to doubt the wrongfulness' of" the defendant's
conduct. Quinter v. Volkswagen of America, 676 F.2d 969, 974 (3d
Cir. 1982) (citing Fox v. Capital Co., 96 F.2d 684, 686 (3d Cir.
1938)).
It is because we must find not only that the contemnor
had knowledge of the order but also that the order was "specific
and definite" that a finding of contempt cannot be based merely
on the City's alteration of its prior policy without seeking
court approval or modification, which some language in the
district court's opinion suggests was the basis for its contempt
finding.8 Absent any provision in the 1991 Consent Decree or an
order of the court requiring the City to seek court approval
before modifying its practice, its mere failure to do so before
changing its procedures for implementing the release mechanism is
not alone enough to sustain a contempt finding.
Courts must be careful not to impose obligations upon
the parties beyond those they have voluntarily assumed. See,
e.g., Fox, 680 F.2d at 319; Johnson v. Robinson, 987 F.2d 1043,
1046 (4th Cir. 1993); Walker v. United States Dep't of Hous. &
Urban Dev., 912 F.2d 819, 825-26 (5th Cir. 1990). A consent
decree "must be construed as it is written, and not as it might
have been written had the plaintiff established his factual
claims and legal theories in litigation." United States v.
Armour & Co., 402 U.S. 673, 682 (1971).
There is no provision here requiring the City to seek
prior approval from the court before modifying its policy, as
appears in some consent decrees. See, e.g., Gautreaux v.
Landrieu, 523 F. Supp. 665, 675 (N.D. Ill. 1981) (consent decree
provides that "HUD may change the terms of [contract with private
agency required by consent decree] in the future . . . provided
that none of the services provided for the benefit of eligible
persons will be reduced or modified to their detriment without
8
. For example, the court stated, "[t]he court finds the City
in contempt for its unilateral decision to modify the release
mechanism with respect to detainees with 'other holds,'" Addenda
to City's Brief at A-15, and "[t]he court finds the City in
contempt for its unilateral decision to modify the release
mechanism with respect to detainees deemed 'a danger to
themselves or the community.'" Addenda to City's Brief at A-23.
Court approval"), aff'd, 690 F.2d 616 (7th Cir. 1982); Oburn v.
Shapp, 393 F. Supp. 561, 570 (E.D. Pa.) ("if there was . . . a
change in the selection procedure [in related case] the consent
decree in [that case] requires the defendants . . . to submit it
to the court for approval"), aff'd, 521 F.2d 142 (3d Cir. 1975).
We can understand the court's displeasure that the City, which
was in continuous contact with the court9, made "no effort to
determine whether the court shared [its] understanding of the
Stipulation and Agreement before the changes were unilaterally
implemented," Addenda to City's Brief at A-12, but however
discourteous and ultimately counterproductive the City's conduct
was, it was not contemptuous in itself. Moreover, the City did
notify both the Special Master and the plaintiffs' counsel almost
contemporaneously with its change in policy, so the plaintiffs'
accusation that the City was trying to "play games" with the
court may fall short.
The City argues that it did not violate any clear and
unambiguous provision of the 1991 Consent Decree. Paragraph 17
(b) of that Decree provides that the City "shall submit no fewer
than thirty-five (35) names per day, at least five (5) days per
week, whenever the population is in excess of 3,750." App. at
117 (emphasis added). The City acknowledges that once it changed
its policy as to the inmates to be included on the list, it
failed to list 35 inmates a day or 175 a week. Plaintiffs do not
9
. In its opinion approving the 1991 Consent Decree, the
district court noted that it had held 29 status conferences on
the case up to that date. Harris v. Reeves, 761 F. Supp. at 388.
contend that the City could be held in violation of the 1991
Consent Decree for failure to list 35 inmates a day if there were
not that many inmates who fit the criteria for listing.10
The district court held the City liable for contempt
for failure to list the following three categories of prisoners
beginning in early July 1992: inmates with other holds; inmates
held on enumerated offenses who have state or federal detainers;
and inmates who, according to the City, "are a danger to
themselves or the community."11 Thus we focus on whether it was
clear and unambiguous that prisoners falling within each such
category should have been listed.
B.
Inmates
With Other Holds
The district court included within this category
inmates who are detained on enumerated charges and at least one
non-enumerated charge. Before early July 1992 these inmates were
included on the proposed release lists submitted by PMU, but were
10
. In approving the 1991 Consent Decree, the district court
stated that "the Stipulation and Agreement requires the
imposition of fines if the City fails to submit 175 petitions
only if there are 175 eligible inmates." Harris v. Reeves, 761
F. Supp. at 398 n.17 (emphasis added).
11
. The City also changed its prior practice of listing inmates
who on the face of their charges are not eligible for release.
The district court found that the City was not in contempt in
modifying the procedures in this category because the
modifications were consistent with the 1991 Consent Decree.
Therefore, this category is not under consideration in this
appeal.
not included after Jordan's instructions. The City contends that
it is not required to list inmates who would not be eligible for
immediate release. Thus, it continues, it is not required to
list inmates who are charged with a non-enumerated offense for
which bail may be reduced if that inmate is also charged with an
enumerated offense, which is generally a crime of violence,
because the charge on the enumerated offense precludes immediate
release.
The plaintiff counters, and the district court agreed,
that the City must list inmates with both enumerated and non-
enumerated offenses so that the inmates can be immediately
released if and when the enumerated charges are dropped or
otherwise disposed of. It is not contested that failure to list
such inmates under the release mechanism added three to four
weeks to the release process if the enumerated charges were
dismissed.
The district court commented that the Special Master
contemplated that a detainee in this category would be listed for
release on non-enumerated charges even if held on some other
enumerated charge. The issue is not, however, whether the
Special Master or even the district court contemplated the City's
listing of this category of inmates, but whether that requirement
is unambiguously stated.12 We therefore turn to the relevant
language.
12
. Plaintiffs point to the following statement by the district
court in Harris v. Reeves, 761 F. Supp. at 398, as evidence that
the City must list inmates with both enumerated and non-numerated
offenses. "There will be other categories of inmates eligible
Under Paragraph 17(a) of the 1991 Consent Decree:
Defendants shall designate and submit to the Special
Master the names of inmates who meet the criteria of
Paragraph 4.E.(i)-(iii) of the September 21, 1990 Order
which provides for the release of:
(1) all persons admitted to the prisons under prior
orders of the court who are still detained but who
would not be admitted under the provisions of this
order as now modified;
(2) prisoners held in default of the lowest amount of
percentage bail as necessary to reduce the population
in all institutions to the maximum allowable
populations. If inmates considered for release under
this paragraph are held in default of equal amounts of
bail, preference shall be given to the inmate held the
longest time. Persons charged with offenses enumerated
in paragraphs 3A and B [of the September 21, 1990
Order] shall not be released pursuant to this
paragraph.
Two paragraphs of the September 21, 1990 Order are
referenced in paragraph 17(a). The first reference is to
paragraph 4.E.(i)-(iii) which describes the "release categories"
in the exact same language as in paragraph 17(a) (except that the
plural is used in paragraph 17(a)). See note 3 supra. The
other reference is to paragraphs 3A and B of the September 21,
1990 Order which enumerated the pending charges that excepted
inmates from release. In essence, paragraph 17 merely provides
that in order to reduce the population of the overcrowded prisons
(..continued)
for release. For example, the City will be able to submit the
names of those inmates who were admitted to the prisons because
they were charged with excepted offenses, are now eligible for
release because the excepted charges have been dismissed but are
still held on other non-excepted charges." Id. (emphasis added).
This is hardly an unqualified statement that the City must
include such inmates if needed to meet its quota. It was made,
instead, in the context of responding to the District Attorney's
concern about the pool of inmates "eligible for release," not
about those who need be listed.
the City would release those prisoners who, under the qualified
admissions moratorium, would not now be detained, and those
prisoners who are not charged with one of the enumerated offenses
in the order of longest-in, earliest-out.
The City's argument that it need not include on its
list those prisoners who are charged with any enumerated offense
is a plausible one from the language of the 1991 Consent Decree.
It must "designate and submit" only the names of inmates who
"meet the criteria" of the referenced paragraph of the September
21, 1990 Order. Inmates charged with "enumerated" offenses do
not "meet the criteria" and therefore need not be listed.
Plaintiffs' argument "that the pool of eligible
candidates was defined by the City's practice prior to July
1992," Appellees' Brief at 30, is not persuasive. While prior
practice may be of assistance in interpreting a contract for
purposes other than contempt, prior practice does not provide the
clarity of language that precedent informs us is a predicate for
any contempt ruling. Authority cited by plaintiffs in support of
the principle that a consent decree must be construed in light of
its purpose is to the same effect. In fact, in the case cited,
In re Arthur Treacher's Franchise Litig., 689 F.2d 1150 (3d Cir.
1982), the court affirmed the contempt citation because the
conduct violated "both the letter and spirit" of the underlying
order. Id. at 1157 (emphasis added).
We cannot find an unambiguous provision in the 1991
Consent Decree or otherwise requiring the City to designate
inmates with other holds for purposes of the release mechanism.13
Therefore, we cannot uphold this portion of the contempt finding.
C.
Inmates with State or Federal Detainers
The district court included under this category both
those inmates held on enumerated offenses who also were subject
to state or federal detainers for, inter alia, parole or
probation violations and those inmates "on writ," i.e. those who
are here for court appearance. To the extent that the district
court's finding of contempt was based on the fact that the City
had previously listed these inmates, our rejection of prior
practice to clarify an ambiguous requirement under the consent
decree in this context is equally applicable here.
The City, applying the same analysis as it used with
respect to inmates held on both enumerated and non-enumerated
charges, argues that "had the City designated and submitted the
names of these inmates for release, they would not have been
released, because they were being held not only on detainers, but
also on enumerated charges." Appellants' Reply Brief at 8.
While we concluded above that the City's argument as applied to
inmates held on both enumerated and non-enumerated charges
persuaded us that there was a legitimate ambiguity that precluded
13
. We do not decide whether the language of the 1991 Consent
Decree was such that the district court, using permissible
interpretative aids or evidence, can construe it to support an
order requiring the City to list this category of inmate in the
future. The only issue before us is whether the language is
sufficiently clear that the City must do so that its failure to
act in this manner supports a contempt finding.
a finding of contempt for failure to list inmates in that
category, we are not similarly persuaded as to inmates held on
detainer. Of course, these inmates, like those held on
enumerated and non-enumerated charges, were not eligible for
"release" to the general population. Unlike the other category
of inmates, however, these inmates could have been eligible for
"release" from the Philadelphia prisons by being transferred to
some other jurisdiction.
In this connection, we cannot dismiss as irrelevant
the district court's reliance on the fact that the First Deputy
City Solicitor had notified the court by letter to the Special
Master dated January 17, 1992 that the City "did not object to
transferring inmates with state parole detainers" even though
they had been charged and were being held in Philadelphia on one
or more enumerated charges. This is relevant not to show prior
practice but to show that listing inmates with detainers from
other jurisdictions could, in fact, have effected their removal
from the Philadelphia prisons, with a consequent reduction in
overcrowding.
Moreover, the 1991 Consent Decree, unlike the September
21, 1990 Order, does not provide any basis for construing the
term "release" as a term of art. Paragraph 4.A. of the September
21, 1990 Order required listing of a detainee "for release by
court order on his or her own recognizance (HvR-SOB), on
electronic monitoring (HvR-EM) or to a community corrections
facility (HvR-CCF)." App. at 103. It follows that it would be
reasonable to construe the listing requirement of the September
21, 1990 Order as applicable only to a detainee released on one
of these three types of releases.
On the other hand, Paragraph 18 of the 1991 Consent
Decree expressly provides that Paragraph 4.A. of the September
21, 1990 Order (which set forth these three types of release) is
superseded. See App. at 118 ("The procedures set forth in
Paragraph 17 of this Stipulation and Agreement shall supersede
Paragraphs 4.A.-C. of the September 21, 1990 Order."). This
removes any argument based on "release" as a term of art.
We have earlier accepted the City's argument that it
should not be held in contempt for not listing prisoners with
both enumerated and non-enumerated charges because, in its words,
"the decree appears to contemplate that prisoners listed actually
will be eligible to be set free, i.e., released, not just to have
their bail reduced to 'HvR-SOB' on a single charge." Appellants'
Brief at 37. That argument has no force when dealing with
prisoners on detainers who are eligible to be released to other
authorities.
In our prior discussion, we have recognized that
ambiguities redound to the benefit of the contemnor. This does
not mean that a party can avoid following an injunction or court
order "on merely technical grounds." See Christie Indus., 465
F.2d at 1007. In sustaining the finding of contempt in In Re
Arthur Treacher's Franchise Litig. we looked to the "thrust of
the . . . order." 689 F.2d at 1156. We find it incontrovertible
that the "thrust" of the 1991 Consent Decree was to move out of
the Philadelphia prisons those who could be reasonably moved
elsewhere. This entailed, inter alia, even the establishment of
a program for alcohol and drug dependent inmates in another
facility, the subject of our opinion in Harris VI.
There is no language that supports the City's failure
to list inmates who might reasonably be transferred to other
jurisdictions, or, as in the case of those "on writ," who might
not be needed for immediate trial.14 Instead, by not listing
these inmates the City deprived plaintiffs, the Special Master,
and the court of the opportunity of arranging for their removal,
even if temporary, from the Philadelphia prisons.15 Even
Jordan's memorandum of August 5, 1992 recognized that such
transfer could have been viable, for it stated:
Please do not continue to list persons with State or
Federal detainers and charged with enumerated offenses
who are to be transferred to another jurisdiction.
Such persons are not required to be listed on the
Harris release orders. We will work with the courts
and the District Attorney's Office to improve the
efficiency of available mechanisms for transfer of such
persons.
14
. The parties have not clarified whether there is a pertinent
distinction between inmates on federal and state detainers, to
which our discussion applies, and those "on writ." To the extent
that those "on writ" also have pending against them an enumerated
charge, and might have been eligible for transfer elsewhere,
failure to list them is encompassed by this discussion. If those
inmates present a different situation the matter can be
clarified, and presumably resolved between the parties and the
court, within the framework of this opinion when it returns to
the district court for modification of the amount of the
sanction.
15
. We need not decide whether each of these prisoners would
have been transferred. We recognize that there may have been
some objection. Instead, failure to list them deprived
the court or its representative of any opportunity to consider
such objection, if raised in a particular case.
App. at 426 (emphasis added). We will therefore sustain the
finding of contempt for failure to list inmates in this category.
D.
Inmates Who Are a "Danger to Themselves or to Others"
Jordan described the final category of inmates whom he
directed PMU to stop listing as part of the release mechanism as
"persons who are a danger to themselves or to others." App. at
426. The City cannot have been unaware that such a
characterization would give the impression that the district
court was directing the release of "dangerous" inmates without
concern for the public welfare. In Jordan's memorandum of
September 24, 1992 Jordan directed PMU to list as "dangerous"
those inmates whose bail is set at $75,000 or higher or who
require mental health treatment. Defining "dangerous" inmates in
this manner does not arise out of anything in the 1991 Consent
Decree, nor indeed out of any of the earlier stipulations,
agreements, or court orders.
Further, the City stipulated that the 1991 Consent
Decree contains no explicit exception to the release mechanism
for inmates whom the City deemed to be "a danger to themselves or
to the community." App. at 483.
To justify its decision not to list for the release
mechanism this category of inmates, the City refers us not to any
provision of the 1991 Consent Decree but to Paragraph 4 of the
1986 Consent Decree which states the City agrees not to seek the
release of any person charged with, or convicted of, murder or
forcible rape or "whose release would constitute an imminent
threat to public safety or the inmate's own health, safety or
welfare." App. at 93. In order to analyze the City's argument,
it is necessary to recall that throughout the history of this
litigation, beginning with the 1986 Consent Decree, there were
offenses enumerated in both the release mechanism and the
admissions moratorium to which those provisions did not apply.
Presumably the parties enumerated the offenses they deemed
identified inmates or defendants who presented the greatest
danger to the public interest. Inasmuch as the admissions
moratorium in the 1986 Consent Decree did not have any general
exception under which the City could except those whom it
believed were a threat to public safety comparable to the
provision in the release mechanism, and it is as much a danger to
public safety to refuse to admit a person charged with "or
convicted" of a crime as it is to release that person if s/he is
already in prison, it is reasonable to conclude that the parties
equated the crimes excepted from the admissions moratorium as
somewhat equivalent to those that constitute a threat to public
safety. This equivalency runs through the various subsequent
orders.
As detailed before, the 1986 Consent Decree was
unsuccessful in effecting any significant short-term relief, and
when the admissions moratorium went into effect in June 1988 it
was the District Attorney (not the City) who, notwithstanding the
denial of his intervenor status, petitioned the district court on
a number of occasions and was successful in getting the court to
order additional exceptions from the qualified admissions
moratorium for certain additional categories of charges. See
Harris v. Reeves, 761 F. Supp. at 387.
None of the orders modifying or expanding the release
mechanism and/or the qualified admissions moratorium addressed
the "dangerous" inmate as such, i.e. outside the context of a
specified crime. Notably, when the release mechanism was revised
by the Order of April 17, 1989, it expressly provided for notice
to the District Attorney who could notify the Special Master "of
objections." Supp. App. at 1442. However, when the
ineffectiveness of the 1986 Consent Decree became evident, and
the City abandoned its plans for long-term relief, the parties,
i.e. the City and the plaintiffs, renegotiated their agreement to
the 1991 Consent Decree, that document did address the dangerous
prisoner/public safety issue. In paragraph 17(e), the 1991
Consent Decree gave the District Attorney the right to object to
release of a prisoner on public safety grounds. Notably, the
1991 Consent Decree did not incorporate a provision in the April
17, 1989 Order and the September 21, 1990 Order providing that
PMU, the City's contractor, "shall . . . note" any information
indicative that the listed inmate would "pose a risk of harm" if
released. See App. at 103; Supp. App. at 1442. In holding the
City in contempt for deciding, with no support in the language of
the 1991 Consent Decree, that it need not list prisoners who are
mentally ill and those for whom bail was set at $75,000, the
district court held that paragraph 17(e) superseded the paragraph
in the 1986 Consent Decree on which the City relied.
The City argues that it is a separate and distinct
entity from the District Attorney, so that its policy of "not
listing dangerous inmates follows common sense." Appellants'
Brief at 44. We prefer not to comment on the "common sense" of
the City or its representatives who have agreed to the procedures
established in the orders and consent decrees at issue, and who
unilaterally imposed the change in interpretation and procedures
which precipitated the contempt findings resulting in this series
of appeals.
We conclude that the district court's interpretation of
Paragraph 17(e) of the 1991 Consent Decree as superseding
Paragraph 4 of the 1986 Consent Decree is not erroneous, under
even the most searching review. Although Paragraph 18 in the
1991 Consent Decree states that all unamended provisions of the
September 21, 1990 Order remain in full force and effect, it
explicitly modifies the release mechanism provisions in the
September 21, 1990 Order. Paragraph 18 of the 1991 Consent
Decree states that the release mechanism in Paragraph 17
supersedes Paragraphs 4.A-C of the September 21, 1990 Order but
that otherwise the 1991 decree "shall not affect the operation of
the September 21, 1990 Order or Paragraphs 1 and 2.a-c and h-i of
the remedial provisions of the Consent Order of December 30,
1986." App. at 119 (emphasis added). Therefore, Paragraph 17
superseded the release mechanism of the September 21, 1990 Order
and explicitly preserved only Paragraphs 1 and 2.a-c and h-i of
the 1986 Consent Decree.16 Paragraph 4 of the 1986 Consent
Decree from which the City derives its authority to not list
"dangerous" inmates has not been preserved by the 1991 Consent
Decree.
The City argues that this interpretation is incorrect
because under the 1991 Consent Decree the District Attorney has
the power to prevent an inmate's release only if the District
Attorney can designate another eligible inmate to be released.
There are several responses. The first, and most obvious, is
that this is the provision to which the City agreed. We prefer
not to speculate as to the reason. The second is that every
inmate at issue in this case is a pretrial detainee for whom bail
has been set and who, if s/he could provide that bail, would be
walking the streets. The third is that if we agreed with the
City, Paragraph 17(e) of the 1991 Consent Decree specifying the
District Attorney as the one who could prevent release on "public
safety" grounds upon substitution of another inmate would be
surplusage, because the City could designate any inmate without
such substitution.
In rejecting the City's defense to contempt on this
ground the district court agreed that inmates suffering from
mental illness are "poor candidates for release," but noted that
16
. The City maintains that when the 1991 Consent Decree
superseded provisions of the earlier orders it specifically so
stated. But the City fails to take the further step to evaluate
how the release mechanism evolved over time and how the authority
to prevent releases of "dangerous inmates" was shifted from the
City to the District Attorney.
they should be held, if at all, in the prison health services
wing which is not subject to the 1991 Consent Decree and then
would be properly excluded from release lists. Addenda to City's
Brief at A-23. The City offers no response. The district court
also stated that the amount of bail is an inadequate
determination of dangerousness. We assume that the dispute on
this category is in large part focused on certain defendants
charged with drug crimes, which are not excepted from the release
provision of the 1991 Consent Decree.
In light of the plain language of the 1991 Consent
Decree read in the context of the history of the "danger"
provision set forth above, we will affirm the district court's
finding that the City violated an unambiguous provision of the
1991 Consent Decree by failing to list inmates who fell into the
two categories it deemed "dangerous."17
III.
CONCLUSION
We will reverse the finding of contempt for failure to
list inmates who were charged with enumerated as well as non-
enumerated offenses, and we will affirm the finding of contempt
for failure to list inmates with state or federal detainers and
inmates who are a danger to themselves or others. Because this
will require a corresponding revision of the penalty which was
17
. We find the argument that the court continues to monitor and
enforce other provisions in paragraph 4 of the 1986 Consent
Decree unavailing. This practice may be unnecessary but it is
not before us.
calculated based on each inmate per day who should have been
listed but was not, we will remand for recalculation of the
penalty.
We observe that the three opinions issued today are not
independent of each other, although we have treated them
separately for convenience. Indeed, they are interrelated parts
of a complex ongoing litigation in which we believe the public
interest would best have been served had the parties been able to
maintain the same degree of cooperation that characterized their
original entry of the Consent Decrees and Stipulations.
Moreover, as we observed in the opinion in Harris V, many of the
issues that divide the parties in this case with respect to the
release mechanism might have been obviated had the district court
considered the merits of the Motion to Modify. We trust that on
remand steps will be taken to insure that the divisions that
characterize the disputes that are the subject of this opinion
will not recur.
__________________________________
Harris v. The City of Philadelphia
No. 93-1988
ALITO, Circuit Judge, concurring and dissenting:
I join parts I, IIA, and IIB of the opinion of the
court. I cannot, however, agree with the court that the City of
Philadelphia was properly held in contempt for ceasing to list
(a) inmates with detainers who were ineligible for release
because they were held on "enumerated" offenses and (b) inmates
whom the City believed posed an imminent danger to the community
or to themselves.
A. INMATES WITH DETAINERS. As the court acknowledges,
a party may not be held in contempt unless it violates a
"`specific and definite'" court order. Maj. typescript at 17
(citations omitted). See also Eavenson, Auchmuty & Greenwald v.
Holtzman, 775 F.2d 535, 544 (3d Cir. 1985); In re Rubin, 378 F.2d
104, 108 (3d Cir. 1967). In ceasing to list inmates who were
charged in Philadelphia with "enumerated" (i.e., serious
offenses) and who also had detainers lodged against them, the
City did not, in my view, violate any specific and definite
prohibition. I analyze this question in two steps.
First, as the court appears to recognize (see Maj.
typescript at 23), the City was not required to list inmates who
were ineligible for release under paragraph 17a of the 1991
Consent Decree. Paragraph 17 of the 1991 Consent Decree (the
provision that the district court found that the City had
violated) provides in pertinent part as follows:
a. Defendants shall designate and submit to the
Special Master the names of inmates who meet the
criteria of Paragraph 4.E(i)-(iii) of the
September 22, 1990 Order which provides for the
release of:
(1) all persons admitted to the prisons
under prior orders of the court who
are still detained but who would
not be admitted under the
provisions of this order as now
modified;
(2) prisoners held in default of the
lowest amount of percentage bail as
necessary to reduce the population
in all institutions to the maximum
allowable populations. If inmates
considered for release under this
paragraph are held in default of
equal amounts of bail, preference
shall be given to the inmate held
the longest time. Persons charged
with offenses enumerated in
paragraphs 3A and 3B18 shall not be
released pursuant to this
paragraph. . . .
18
. These paragraphs listed the following offenses:
A. Murder, attempted murder, forcible rape, attempted
rape, involuntary deviate sexual intercourse,
corrupting the morals of a minor, arson,
kidnapping, aggravated assault, a crime of
violence committed or attempted with a firearm,
knife, or explosives, and escape from custody.
B. Domestic Violence and Abuse Offenses. . . .
JA101.
e. The Special Master shall direct the release of all
inmates who meet the criteria set forth in Paragraph
17.a. . . .
JA116-17 (emphasis added). Thus, paragraph 17a requires the
defendants to submit to the Special Master the names of inmates
who meet the specified criteria for release, and paragraph 17e
requires the Special Master to "direct the release of all
inmates" who meet those criteria. JA117. Accordingly, it seems
clear that the defendants were not obligated to submit the names
of inmates who were ineligible for release under paragraph 17a.
Second, it is at least arguable that all inmates
charged with enumerated offenses (including those inmates who
were charged with enumerated offenses and who also had detainers
lodged against them) were ineligible for release under paragraph
17a. Paragraph 17a(2) of the 1991 Consent Decree, which was
quoted in full above, states in relevant part:
Persons charged with offenses enumerated in
paragraphs 3A and 3B shall not be released
pursuant to this paragraph. . . .
JA116-17. The term "this paragraph" must be interpreted as
referring, at a minimum, to paragraph 17a (and not just paragraph
17a(2)).19 Accordingly, paragraph 17a(2) appears to prohibit any
19
. This interpretation is dictated by the analogous provisions
of the district court's order of September 21, 1990. Paragraph
4E of that order provides in pertinent part as follows:
E. Release categories shall be:
(1) a person admitted to prison under prior
orders of the court who is still detained but
person charged with an enumerated offense from being released
pursuant to paragraph 17a. And since, as noted above, the City
was required to list only those inmates who were eligible for
release under paragraph 17a, it seems to follow that no inmates
charged with "enumerated" offenses (including those inmates who
also had detainers) were required to be listed.
In holding that the City was properly found in
contempt, the majority relies in large part on what it views as
(..continued)
who would not be admitted under this order as
now modified;
(2) a prisoner held in default of the lowest
amount of percentage bail as necessary to
reduce the population in all institutions to
the maximum allowable. If inmates considered
for release under this paragraph are held in
default of equal amounts of bail, preference
shall be given to the inmate held the longest
time.
(3) a person charged with offenses
enumerated in paragraphs 3A and B shall not
be released pursuant to this paragraph.
JA103-04 (emphasis added). Since paragraph 4E(3) does not
provide for the release of any persons, the prohibition in that
provision against release "pursuant to this paragraph" must at a
minimum mean release pursuant to paragraph 4E (and specifically
paragraph 4E(1) and (2)).
Paragraph 17a(1) and (2) of the 1991 Consent Decree restated
paragraph 4E(1)-(3) of the September 21, 1990 order.
Consequently, the statement in paragraph 17a(2) of the 1991
Consent Decree that "[p]ersons charged with offenses enumerated
in paragraphs 3A and 3B shall not be released pursuant to this
paragraph" should be given the same interpretation as the
virtually identical language in paragraph 4E(3) of the September
21, 1990 order.
the "`thrust'" of the 1991 Consent Decree, i.e., "to move out of
the Philadelphia prisons those who could be reasonably moved
elsewhere." Maj. Typescript at 27. Even if we were required in
this appeal to ascertain the best interpretation of the 1991
Consent Decree, I would, for the reasons explained above, have
serious reservations concerning the majority's interpretation.
But since, as the majority concedes, "ambiguities redound to the
benefit of the contemnor," id., it seems quite clear that the
City was not properly held in contempt for ceasing to list the
inmates at issue here.20
20
. The plaintiffs defend the district court's holding on a
different ground. They argue that the City was prevented from
retaining custody of such inmates with detainers pursuant to
paragraph 17a(1) of the 1991 Consent Decree. This provision, as
previously noted, requires the listing of:
all persons admitted to the prisons under
prior orders of the court who are still
detained but who would not be admitted under
the provisions of this order as now modified.
JA116. The plaintiffs argue that such persons could not be
"admitted" to the Philadelphia prison system as a result of
paragraph 2h of the 1986 Consent Decree, which states that "[n]o
federal or state prisoners other than inmates detained for
immediate court appearances, shall be housed within the
Philadelphia Prison System, except for those federal prisoners in
the custody of the United States Marshal." JA92. See Appellees'
Br. at 35.
I am not persuaded that the district court's holding can be
sustained on this ground, which neither the district court nor
the majority of this panel has embraced. For one thing, this
argument does not address the language of paragraph 17a(2) of the
1991 Consent Decree, which, as explained above in text, appears
to prohibit the release of the inmates in question.
Consequently, even if the plaintiffs' interpretation of paragraph
17a(1) were accepted, their argument would at best create an
B. DANGEROUS INMATES. I believe that the district
court also erred in holding the City in contempt for ceasing to
list inmates who would pose an imminent danger to the community
or to themselves.
Paragraph 4 of the 1986 Consent Decree provides strong
support for the City's argument that it was not required to list
dangerous inmates. This provision plainly states that the "City
Defendants . . . agree not to seek the release of any person
whose release would constitute an imminent threat to public
safety or to the inmates' own health, safety or welfare." JA93
(emphasis added). Since, as previously discussed and as the
majority itself appears to recognize (Maj. typescript at 23), the
City was not obligated to list inmates who were not eligible for
release, it follows that, as long as paragraph 4 of the 1986
Consent Decree remained in effect, the City was not required to
list inmates that it regarded as dangerous.
The district court and the majority argue that
paragraph 4 of the 1986 Consent Decree was superseded by
paragraph 18 of the 1991 Consent Decree. This latter provision
states:
The procedures set forth in Paragraph 17 of
this Stipulation and Agreement shall
supersede Paragraphs 4.A.-C. of the September
22, 1990 Order. Otherwise, this Stipulation
(..continued)
ambiguity and, as the court notes, "[t]he resolution of
ambiguities ought to favor the party charged with contempt."
Maj. typescript at 18.
and Agreement shall not affect the operation
of the September 22, 1990 Order or Paragraphs
1 and 2.a-c and h-l of the remedial
provisions of the Consent Order of December
30, 1986, as amended, which shall remain in
full force and effect except as they may be
further amended.
JA118-119.
In my view, this provision is at least ambiguous as to
whether Paragraph 4 of the 1986 Consent Order was superseded.
While the court makes a rather elaborate argument in favor of
supersedure (see Maj. typescript at 29-34), a very reasonable
argument can be made in favor of a contrary interpretation.
Because Paragraph 18 of the 1991 Consent Decree expressly
provides for certain portions of prior orders (but not paragraph
4 of the 1986 Consent Decree) to be superseded, it can be argued
with some force that no other supersedure should be inferred. As
the majority notes, "[t]he resolution of ambiguities ought to
favor the party charged with contempt." Maj. typescript at 18.
Thus, because there are substantial ambiguities here, I think
that the district court erred in holding the City in contempt for
ceasing to list inmates whom the City regarded as dangerous.
I am particularly troubled by the district court's
holding because of its potential impact on the public safety.
One of the most basic and important responsibilities of a
municipal government is to protect the safety of its people. It
therefore seems difficult to imagine that any municipal
government would voluntarily agree to participate in the
premature release of inmates whom it believes will pose an
imminent threat to the community. To be sure, if a municipal
government unambiguously agrees to take such action, a court may
have no alternative but to enforce the agreement. But unless the
agreement is truly unambiguous, I would think that a court
cognizant of its responsibilities to the community would hesitate
to require the municipality to follow a course of action that is
antithetical to the municipality's most basic obligations and
contrary to the public safety.
In conclusion, I do not think that the City violated
any specific and definite provision of any order when it stopped
listing any of the categories of inmates at issue in this appeal.
Accordingly, I would reverse the district court order at issue in
its entirety.