Petitioners Brief — Block v. Rutherford

FILE

Office-Supreme Court, U.S.

DEC 22 1983

No. 83-0317 | “ANOER L STEvas,

CLERK

IN THE

Supreme Court of the United States

October Term, 19%3

SHERMAN BLOCK, et al.,

Petitioners,

vs.

DENNIS RUTHERFORD, HAROLD TAYLOR, and RICHARD ORR,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT.

PETITIONERS’ OPENING BRIEF.

FREDERICK R. BENNETT,

Principal Deputy County Counsel,

Office of the Los Angeles

County Counsel,

648 Hall of Administration,

500 West Temple Street,

Los Angeles, Calif. 90012,

(213) 974-1880,

Counsel for Petitioners.

Petition for Certiorari filed August 23, 1983.

Certiorari granted November 7, 1983.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

Questions Presented.

1. Whether jail inmates have a constitutional right to

contact visitation?

2. Whether jail inmates have a constitutional right to

be present to observe and make inquiries during general

searches of their cells?

Parties.

Petitioners herein are:

SHERMAN BLOCK, Sheriff of the County of Los An-

geles, successor in office to Peter J. Pitchess, Appellant

below; FRED E. STEMRICK, Assistant Sheriff, successor

in office to William Anthony, Appellant below; JAMES W.

PAINTER, Chief of the Los Angeles County Sheriff's De-

partment Custody Division, successor in office to John Knox,

Appellant below; RON BLACK, Captain Central Jail, suc-

cessor in office to James White, Appellant below; ED-

WARD EDELMAN, KENNETH HAHN, and PETER

SCHABARUM, Supervisors of the County of Los Angeles

and Appellants below; DEANE DANA and MICHAEL D.

ANTONOVICH, Supervisors of the County of Los Angeles,

as successors in office to James Hayes and Baxter Ward,

Appellants below. -

Respondents herein are:

DENNIS RUTHERFORD, HAROLD TAYLOR, and

RICHARD ORR.

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TABLE OF CONTENTS

Page

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a dahttn ccaatuave pichssueeibabed dsepboeces thine l

Constitutional and Statutory Provisions .................. I

NE IID a iccbdnadavouss cccescsercedevccesses 2

go at ccs vclndaniusegeeis 2

Soe MN PIII Va con corecscndecccecccusasvocdenc 4

3. Reasoning of Courts Below ................:0c0s008 7

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1. The Courts Below Misapplied the Principles of

Bell v. Wolfish in Finding That the Challenged

Conditions Were Such Exaggerated Responses to

Security Concerns That They Would Support an

Inference of Punitive Intent ...............0ccce000 12

2. The Prohibition of Contact Visits Is Not Founded

on an Express Intent to Punish, and Is Directly

Related to Genuine, Serious Security Concerns

sochuwvisin GAbabab es Nekbsadprosiikbaubivahesindenbebicctahs 16

3. The Record Does Not Support the Court’s Con-

clusion That the Prohibition of Contact Visits at

the Jail Was Such an Exaggerated Response to

3 Security Concerns That Punitive Intent May Be

4.

ve

6.

Page

To the Extent the Denial of Contact Visitation

Might Implicate Other Constitutional Rights, Such

as the Freedom of Association, the Sheriff's Pro-

gram of Daily Non-Contact Visits, Combined

With Other Alternatives for Maintaining Rela-

tionships Through Unlimited Mail and Regular

Unmonitored Telephone Calls, Is a Reasonable,

Non-Content Restrictive, Time, Place, and Man-

ner Regulation Justified by Compelling Security

NID iy on cik dnttesaqumbaddprthdvecseestunantbeiiesé

The Weight of Existing Authority and Strong

Policy Considerations Favor Deferring to Jail Ad-

ministrators the Sensitive Decision Whether to

Permit Contact Visitation ...........ccccceceeeeeees

The Decision Below Concerning Cell Searches

Is Indistinguishable in Terms of Reasoning and

Relief Ordered From That Rejected in Wolfish

Cee eee

Appendix. Constitutional and Statutory Provisions

pSpspud pod beneddsdnddsewebe cused sccavepoocaesenens App. p.

United Siates Constitution, Amendment 14 ..........

United States Code, Title 28, §§ 1343, 2201, 2202

United States Code, Title 42, § 1983 .................

21

23

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iv

TABLE OF AUTHORITIES

Cases Page

Ahrens v. Thomas, 570 F.2d 286 (8th Cir. 1978) ..... 24

Bell v. Wolfish, 441 U.S. 520 (1979).......... 3, 5,8

sisigh tutaiaa 9, 11, 12,-13, 14, 15, 16, 20, 21, 23, 25, 31

Campbell v. McGruder, 416 F.Supp. 100 (D.D.C. 1975),

aff'd in part, 580 F.2d 521 (D.C. Cir. 1978) ........ 24

Cooper v. Morin, 49 N.Y.2d 69, 399 N.E.2d 1188

CRITE nathinteccnpiiedlb Ai iatsiemiddthssttlensdecvpreedstas 24

Detainees of Brooklyn House of Detention v. Malcolm,

421 F.Supp. 832 (E.D.N.Y. 1976) .............c0008 24

Feeley v. Sampson, 570 F.2d 364 (ist Cir. 1978)

odeudecbesiete endbhcaueiberddeuelsebsebwergeiiodee’ acs den 21, 23

Gallego, In re, 133 Cal.App. 3d 75 (1982) ............. 24

Guajardo v. Estelle, 432 F.Supp. 1373 (S.D. Tex. 1977)

SIU ecto ewssees vibthinutteces sai ckpdbhedabaviothndeabonnnane 24

Inmates of Allegheny Cnty. Jail v. Pierce, 612 F.2d 754

(PG Cae. BGFGP i uiceneibantsdonddi eg ateb isne petenes croup tn 23

Inmates of Sybil Brand Inst. for Women v. County of

Los Angeles, 130 Cal.App. 3d 89 (1982) ............ 24

Jones v. Diamond, 636 F.2d 1364 (Sth Cir. 1981), cert

granted sub nom., Ledbetter v. Jones, 452 U.S 954

NOOO op cspisdscevatbbachatehinancunghialebensadsivelaaal 24, 25

Jones v. Wittenberg, 440 F.Supp. 60 (N.D. Ohio 1977)

ons cop en chek coenbepeess deldgnelaaninenbe dshtterpsabe cant amreien 24

Jordan v. Wolke, 615 F.2d 749 (7th Cir. 1980) ....... a4

Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)

Vv

Page

Lock v. Jenkins, 464 F.Supp. 541 (N.D. Ind. 1978),

rev'd in part, 641 F.2d 488 ...........cccccccesccsecces 24

Marcera v. Chindlund, 595 F.2d 1231 (2d Cir. 1979),

vacated, Lombard v. Marcera, 442 U.S. 915 (1979)

inccncUithpins <:0dhdenseibhieiepiieiacadbesotenladesdacerecssess 25

McGinnis v. Royster, 410 U.S. 263 (1973) ............ 20

Miller v. Carlson, 401 F.Supp. 835 (M.D. Fla. 1975),

SE: Se PUD PUG gs, .ctaapbess adebuieabwabasscccuaneses 24

Mitchell v. Untreiner, 421 F.Supp. 886 (N.D. Fla. 1976)

adeskaciidina Sade» » cheat ieaachishs caeeaMebnnkieeenl use sddeavoute 24

O'Bryan v. County of Saginaw, 437 F.Supp. 582 (E.D.

RS RF Oe i sac aekh cians hh debcladeevewnnsncenscecnepepuns 24

Oxendine v. Williams, 509 F.2d 1405 (4th Cir. 1975)

jodsveddarddeentocivaale VAD Ohincd bbls eonbehebagibensets 23, 24

Pell v. Procunier, 417 U.S. 817 (1974) .........ccceeee: 24

Procunier v. Martinez, 416 U.S. 396 (1974) ...... BR

Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1980) ...... 24

Rhem v. Malcolm, 396 F.Supp. 1195 (S.D.N.Y.), aff'd,

$27 F.2d 1041 (20 Cie. 1975). ...ccvcsscecccccccsavcccere 24

United States ex rel. ‘olfish v. Levi, 439 F.Supp. 114

GRIN Ss BP EPM ie vGasiecaveceaces 27, 28, 29, 30, 31, 32

West v. Infante, 707 F.2d 58 (2d Cir. 1983) ........... 24

Constitution

United States Constitution, Fourteenth Amendment, Sec.

Dn cvjebdammpintbenes cca ouiiis bothgillighdeinnsagnebenaan’ 1,8, 11

Rule

Federal Rules of Civil Procedure, Rule 53 .............. 25

| Statutes

California Penal Code, Sec. 4000 ..........cscceseeeeeees 4

United States Code, Title 28, Sec. 1254(1) ............ l

United States Code, Title 28, Sec. 1343

vi

United States Code, Title 28, Sec. 2201 ............ 1, 2

United States Code, Title 28, Sec. 2202 ............ 1, 2

United States Code, Title 42, Sec. 1983 ............ 1, 2

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OPINIONS BELOW.

The following Opinions, decisions, and judgments of the

District Court and the Court of Appeals appear in the Ap-

pendix to the Petition for Certiorari (‘‘PA’’) and the Joint

Appendix (‘‘JA’’), as referenced.

Filed

7/25/78 Reported Memorandum Decision of

the District Court, Rutherford v. Pit-

chess, 457 F.Supp. 104 (C.D. Cal.

1978) PA 41

2/15/79 Unreported Supplemental Memoran-

dum Decision of the District Court PA 29

2/15/79 Unreported Judgment of the District

Location

Court PA 37

8/8/80 Unreported Memorandum Opinion of

the Court of Appeals PA 17

5/18/81 Unreported Memorandum Decision —

of the District Court PA 23

5/18/81 Unreported Judgment of the District

Court JA 93

7/14/83 As yet unreported Opinion of the

Court of Appeals PA |

JURISDICTION.

The judgment of the Court of Appeals for the Ninth Cir-

cuit was entered on July 14, 1983, and the petition for

certiorari was filed within 90 days of that date. This Court's

jurisdiction is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS.

The following constitutional and statutory provisions

appear in the appendix hereto:

United States Constitution, Amendment 14, Section 1.

United States Code, Title 28, Sections 1343, 2201, 2202.

United States Code, Title 42, Section 1983.

ae, Son

STATEMENT OF THE CASE.

1. Procedural History.

The present action was filed in 1975 alleging jurisdiction

under 28 U.S.C. § 1343 for aclaim under 42 U.S.C. § 1983

for injunctive and declaratory relief pursuant to 28 U.S.C.

§§ 2201, 2202, as a class action challenging a wide range

of conditions of confinement at the Los Angeles County

Men’s Central Jail.

After a trial, the District Court issued its Memorandum

Decision (‘‘Mem. Dec. 1,"’ 2/15/79, PA 41) granting a wide

range of injunctive relief. The Sheriff was granted a re-

hearing concerning several issues, including the Court's

orders requiring contact visits' for certain inmates, and cer-

tain procedures for searches of inmate housing areas. As a

result of the rehearing, the District Court issued a Supple-

mental Memorandum Decision (‘‘Supp. Mem. Dec.,’’ 2/

15/79, PA 29), inter alia, (1) requiring pretrial inmates’

confined longer than 30 days and concerning whom there

is no indication of drug or escape propensities, to be per-

mitted one contact visit a week, up to a maximum of 1,500

such visits a week for all such inmates; and (2) requiring

that available inmates be permitted to observe and make

'The term ‘‘contact visits’’ is an imprecise term, rarely defined by

the courts, and is commonly used to describe a wide range of visitation

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inquiries during general searches of their own cell areas.

(/d.)

The Sheriff appealed three of the District Court’s steel:

including the orders concerning contact visits and cell

searches.’ The other orders were not appealed.

In an unpublished Memorandum Opinion filed August 8,

1980 (PA 17), the Court of Appeals remanded the appealed

orders to the District Court for reconsideration in light of

the intervening decision in Bell v. Wolfish (1979) 441 U.S.

520 (‘‘Wolfish’’), finding that while the judicial standard

of review of conditions of pretrial detention applied by the

District Court tracked closely the standard promulgated by

the Supreme Court, the District Court observed that proof

of the availability of less restrictive means of accomplishing

security objectives demonstrated that jail officials had ex-

aggerated their response to security concerns, a mode of

analysis rejected in Wolfish (PA 20). In remanding the mat-

ter the Court of Appeals indicated that the District Court

could apply the Wolfish standards without further trial on

the facts (id.).

On remand, and without further evidentiary hearing, the

District Court, in an unreported Memorandum Decision filed

May 18, 1981 (‘‘Mem. Dec. 2,"’ PA 23), acknowledged

that Wolfish required some differences in analysis, but con-

cluded it required no difference in result, and reaffirmed its

previous orders, finding the categorical rejection of contact

visitation exceeded the reasonable requirements of security,

and that the ordered search procedures were a necessary

prophylactic against improper seizure of inmates’ property.

(/d.)

*The third appealed order required reinstallation of former windows

_—— That order was ultimately reversed by the Court of Appeals

( ‘A 1, 12-14), and is not involved in the present proceedings.

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The Sheriff again appealed, and the Court of Appeals

affirmed the orders with regard to contact visits and cell

searches (PA 1). These orders have been stayed during

appeal.

2. Factual Background.

Central Jail is one of seven jail facilities and numerous

minor facilities operated by the Sheriff of Los Angeles

County (JA 55, para. V. A.1) who is charged with the duty

of housing, inter alia,* all persons in the County charged

with crime and committed for trial or sentenced to impris-

onment in the county jail (cf. California Penal Code § 4000).

He serves a county with a population in excess of 7,000,000

people living in an area of over 4,000 square miles (JA 55,

para. V. A.1). The entire jail system receives more than

200,000 prisoners a year, most of whom are in the Sheriff's

custody less than 10 days, and has an average daily pop-

ulation of over 9,000 inmates, male and female. (/d.)

Central Jail, a large, air conditioned three story building

built in 1963, and the new addition thereto which became

operational shortly before trial, is located in downtown Los

Angeles, a few miles from the Civic Center Courts (Anthony

Affidavit, CT 216, (Dk. 3061),° admitted in evidence by

stipulation, JA 91). It is a major facility, with a rated ca-

pacity in excess of 5,000 inmates, and is the primary County

facility for housing male pretrial detainees, most of whom

state law, : peewee oer Bit carers tert ae yg

or are housed at

cl proceso + 2000 contempt county jails

7 order filed 8/21/81 the Court of Appeals in the present

(Dk. No. 81-5461) the records from the peals Dk.

No.'s 79-3061 and 79-3367) to be used. The ne

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‘*remain at the jail only for a few days or weeks’’® (Supp.

Mem. Dec., PA 32). Central Jail is the entry and exit point

for all male prisoners in the jail system and serves as the

central staging area for all inmates, male and female, who

are transported to court daily (Mem. Dec. 1, PA 95-60).

Each weekday the Sheriff transports between 700 and 1,000

inmates to 26 separate jurisdictional courts located over the

wide expanse of the County, and back to the Jail after court

(JA 73, para. XV. A.1).

Inmates are housed in cell blocks and dormitories pur-

suant to a classification system, and travel to centralized

meals, medical services, visiting, attorney visits, recreation,

school, church services, and other activities either unes-

corted or in groups monitored by one or a few deputies (JA

68, para. V. A.1; Lonergan, RT (11/9/78) 4447:7-12).

The visitation procedures found constitutionally inade-

quate permit daily, unmonitored visits with adults and chil-

“Neither the District Court nor the Court of Appeals made more

specific findings on the average of confinement or on the range

of the length of confinement. The Sone Comnaain eamitins

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number of inmates remain in custody between 60 and 180 days or

(Appellees’ oye ett 81-5461, pp. 6-7), and that 3 to 4 months

or more required to ng oe rede ae ma Pan

with serious felonies (id.). Consistent with Court's finding that most

inmates remain at the jail for a few days or weeks (Supp. Mem.

Dec. 2, PA 32), it is clear that Central Jail is a relatively

short-term facility, particularly when compared to state where

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dren 12 hours a day between the hours of 8:30 a.m. and

8:30 p.m.; the number of such visits average over 2,000 a

day, over 63,000 a month (JA 61-62, para. VII. A.2). To

accommodate such visits, there is a large, air conditioned

visiting area designed to accommodate 228 visitors at one

time, that is generally in constant use throughout the day

(Lonergan Affidavit, CT 268:5-8 (Dk. No. 79-3061), ad-

mitted by stipulation, JA 91). The visiting area is arranged

in corridors designed to minimize noise between rows, and

privacy partitions are located between each visiting location

to likewise reduce noise, and provide some element of pri-

vacy (id., CT 268:8-11). Visitors and inmates are separated

by 22” x 32” clear glass panels and speak over telephones

(id., CT 268:11-14). An area to sit and a shelf is provided

on both the inmate and visitor sides for convenience and

comfort (id., CT 268:14-16).

No direct supervision of each visitor or inmate is done

or required (id., CT 268:17-19). Since visitors never enter

the jail or come in contact with the inmates, the large number

of visits can be accomplished with no prior appointments,

screening, or approved visitor lists, and uninhibited by in-

trusive security measures (id.). Mail may be sent to and

received from any person (JA 59, para. V. A.1). By virtue

of another of the District Court’s orders, each inmate has

regular opportunities to make unmonitored telephone calls

to whomever he wishes (Mem. Dec. 1, PA 60).

Under the search procedures found constitutionally in-

adequate by the Court, cell areas were searched while all

inmates were out of the cell areas for other activities such

as meals, exercise or the like. Under the ordered procedures,

all inmates are to be removed to a separate dayroom area,

and the available occupants of particular cells brought back

to observe and make inquiries during the search of their

particular cell (JA 94).

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3. Reasoning of Courts Below.

Although the District Court recognized that ‘‘any program

of contact visits does increase the importation of narcotics

into the jail despite all safeguards and precautions’’ (Supp.

Mem. Dec., PA 31; emphasis added) and the Sheriff's con-

cerns about the possibility of the introduction of weapons,

escape attempts, and hostages (id., PA 32), the Court was

equally impressed with the importance of physical contact

with family members for prisoners detained for prolonged

periods (id., PA 31). Finding the Sheriff's categorical re-

jection of contact visits for all inmates at Central Jail to be

an unreasonable, exaggerated response to the security con-

cerns, the Court concluded that ‘‘[m]odest alteration within

the jail presumably could provide appropriate space (for

contact visits)’’, and that by limiting the number of such

visits to no more than 1,500 a week for prisoners not de-

termined to be drug or escape risks ‘‘the scope, burden, and

dangers of the program would be substantially reduced’’

(Supp. Mem. Op., PA 33; emphasis added).

Although it was admitted that regular cell searches are

necessary (JA 72, para. XII. A.2), the prisoners contended

they were conducted in a manner which results in leaving

the cells in disarray and improper confiscation of their prop-

erty (JA 72, paras. XII. B.1-2). Although not specifically

resolving the conflicting evidence as to the prisoners’ con-

tentions (Mem. Dec. 1, PA 60-61), the District Court con-

cluded that allowing inmates to observe the searches

‘* ‘would go far to eliminate these grounds of complaint’ ’’,

would motivate the officers to *‘ ‘fulfill the stated duty to

put things back as they were’ ’’, and a claim of ** ‘stolen

property is far less likely to be made, the grounds for sus-

picion, or ostensible suspicion, being largely eliminated’ °’

(Mem. Dec. 1, PA 61).

A es

In affirming with regard to contact visits and searches,

the Court of Appeals, acknowledging the principles pro-

mulgated in Wolfish, viewed a court’s proper role in eval-

uating jail restrictions as finding the mutual accommodation

between the institution's needs and the interests of detainees,

who have not yet been convicted of any crime, in exercising

their retained constitutional rights.

With regard to contact visits, the Court of Appeals con-

cluded that while contact visitation is not constitutionally

mandated for all detainees in all facilities, the District Court ~

properly accommodated the jail’s security interests with the

adverse psychological effects caused by the lack of physical

contact with family members over prolonged periods of time

in concluding that a blanket restriction on contact visits for

all detainees at Central Jail was an unreasonable, exagger-

ated response to security concerns at that facility.

With regard to the search procedures, the Court of Ap-

peals, with one dissent, found that the District Court’s con-

clusion that the ordered search procedures did not permit

inmates to frustrate the search, and the District Court's

reliance on due process rights of the inmates, distinguished

the holding of this Court in Wolfish reversing the similar

search procedures ordered by the District Court in that case.

SUMMARY OF ARGUMENT.

1. Standard of Review.

In Bell v. Wolfish, 441 U.S. 520 (1979), this Court pro-

mulgated a test of the constitutional validity of jail condi-

tions affecting pretrial detainees. Where a condition impli-

cates the 14th Amendment’s protection against deprivation

of liberty without due process, the proper inquiry is whether

the condition amounts to punishment. A condition is pu-

nitive if there is a showing of an express intent to punish.

Otherwise, if a particular condition is reasonably related to

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a legitimate non-punitive objective, it does not, without

more, amount to punishment. Legitimate objectives include

maintaining security, order, discipline, and facilitating the

effective management of the facility. Where a condition

implicates another constitutional right, as well, a court must

assess whether the condition impermissibly infringes that

right. In making that assessment the court must recognize

that the essential goals of maintaining security and preserv-

ing internal order may require limitation on the constitu-

tional rights of detainees, and must grant wide-ranging def-

erence to prison administrators in the adoption of policies

to serve these goals.

The courts below did not find an express intent to punish

as to either of the challenged orders, and did not find that

the restrictions on contact visits or cell searches implicated

constitutional rights other than the due process clause. Rather,

as to both restrictions, the lower courts found that the Sher-

iff's response to admitted security concerns were exagger-

ated, and inferred an intent to punish.

In doing so, the lower courts misapplied the principles

of Wolfish, merely disagreeing with the Sheriff about the

extent of the security concerns and the means required to

deal with them.

2. Contact Visits.

Given the unique and clear opportunity contact visitation

presents for the introduction of drugs and weapons, for

escape, hostages, and injury despite all safeguards, the denial

of such visits should not be considered such an exaggerated

response to permit the inference of punitive intent.

Moreover, the record does not support the Court’s

conclusion that the denial of contact visits is such an ex-

aggerated response to security concerns that punitive intent

may be inferred.

aw

Although recognizing the risks in any program of contact

visitation, the court felt that modest alteration of the jail or

busing the inmates to another facility, and limiting the num-

ber of such visits to 1,500 a week for low risk classified

inmates would substantially reduce the scope, burden, and

dangers.

The Court was unable to articulate exactly what altera-

tions could be made to the Jail to feasibly permit contact

visits. The alternative of busing the inmates to another fa-

cility is impractical in light of the fact that the Sheriff is

already required to transport one fifth of the Jail’s population

daily to 26 separate jurisdictional courts located over the

wide expanse of the county, a process necessarily fraught

with considerable security problems, and one which the

Court found involves such a strain on inmates and staff that

it alone rose to constitutional proportions.

Any classification system will miss serious risks. In ad-

dition, the design of the Jail, where inmates have consid-

erable freedom of movement to varied centralized activities,

and the daily need to commingle about one fifth of the Jail’s

population by court destination, precludes adequate sepa-

ration of inmates to prevent those denied contact visits from

using threats and violence to coerce those permitted contact

visits to do their deeds for them.

The fact that other facilities permit contact visitation is

not controlling, as there may be factors that make contact

visitation more manageable there; and there may be legit-

imate differences of opinion as to what practices are safe

within those institutions.

To the extent the denial of contact visitation implicates

other constitutional rights, such as the freedom of associ-

ation, the Sheriff's program of daily non-contact visits, com-

through unlimited mail and regular unmonitored telephone

calls, is a reasonable, non-content restrictive, time, place

and manner regulation justified by compelling security

concerns.

3. Cell Searches.

The need for routine cell searches is not in dispute. Rather,

the inmates complain that the searches are conducted in a

manner which leaves their cells in disarray and results in

the improper confiscation of property, facts which the Sher-

iff denies. Without fully resolving this factual dispute, the

District Court determined that it was necessary to permit

the inmates to observe the searches as a prophylactic against

possible abuse.

The courts below sought to distinguish the holding of this

Court in Wolfish, reversing a similar order, on the grounds

that, unlike the District Court in Wolfish, the District Court

here gave adequate weight to the administrator's ci ncerns,

and based its analysis, not on disapproved Fourth ~mend-

ment grounds, but on the due process rights of the inmates.

The distinctions are without substance. Both the courts in

Wolfish and this case considered similar security concerns

but simply disagreed on the extent of those concerns and

the means needed to meet them. Both courts relied in haec

verba on the same reasoning. This Court rejected that

approach in Wolfish, and should do so here. The Sheriff

reasonable needs to conduct such searches out of the pres-

ence of the inmates to prevent inmates from interfering with

the likelihood of locating dangerous contraband, to prevent

disruption of the jail operation, and to avoid risk of harm

to inmates and staff. Moreover, there is no compelling rea-

son to believe that the inmates’ presence will effectively

deter abuse.

+i12—

ARGUMENT.

1. The Courts Below Misapplied the Principles of Bell

v. Wolfish in Finding That the Challenged Condi-

tions Were Such Exaggerated Responses to Security

Concerns That They Would Support an Inference

of Punitive Intent.

As the Court of Appeals observed (Mem. Op., PA 19-

20), Bell v. Wolfish, 441 U.S. 520 (1979), set forth the

tests for evaluating constitutional attacks by pretrial detai-

nees on conditions or restrictions during their confinement.

**Where a condition implicates the fourteenth amendment’s

protection against deprivation of liberty without due proc-

ess, the proper inquiry is whether the condition amounts to

punishment. /d. at 538. A condition is punitive if there is

a showing of express intent to punish. Otherwise, if a par-

ticular condition is reasonably related to a legitimate non-

punitive objective, it does not, without more, amount to

punishment. /d. Legitimate objectives include both insuring

the detainee’s presence at trial and facilitating the effective

management of the facility. Jd. at 539-40. Where a restric-

tion implicates another constitutional right as well, a court

must assess whether the condition or restriction impermis-

sibly infringes that right. In making that assessment, how-

ever, the court must recognize that the essential goals of

maintaining security and preserving internal order and dis-

cipline may require some limitation on the constitutional

rights of detainees, id. at 546, and must grant wide-ranging

deference to prison administrators in the adoption of policies

to serve these goals. Id. at 547-58"" (Mem. Op., PA 19-

20).

Although espousing this test, nether the District Court

nor the Court of Appeals applied it.

spat Dain

In its initial decision, the District Court, without benefit

of this Court’s opinion in Bell v. Wolfish, formulated its

own standard of review, which the Court of Appeals found

tracked closely the test promulgated in Wolfish. The test

applied by the District Court was ‘‘whether the challenged

conditions or restrictions are reasonably necessary to the

maintenance of security, order, and safety in the institution

or whether they constitute an exaggerated response by the

custodial officials to these considerations’’ (Supp. Mem.

Dec., PA 30; emphasis added). Further elaborating this test,

the Court observed that ‘‘if jail security and order can be

protected by less restrictive means, the conditions and prac-

tices must be deemed unreasonable as an excggerated re-

sponse’ (Id., emphasis added). The Court of Appeals, in

remanding the matter, correctly observed that this Court had

rejected this ‘‘less restrictive means’’ mode of analysis

(Mem. Op., PA 4).

The matter was remanded to the District Court for re-

consideration, noting that the District Court could apply the

Wolfish standards without further trial on the merits (Opinion,

A 20).

No further evidentiary hearings were held. On remand

the District Court acknowledged that Wolfish required some

differences in analysis, but no difference in result, and re-

affirmed its previous orders. The District Court concluded

**that, regardless of how it is phrased the test still remains:

“What is reasonable under the circumstances?’ *’ (Mem.

Dec. 2, PA 25). The District Court opined that in all of its

decisions in this action, the previous as well as the latest,

the Court ‘‘was trying to find ‘the mutual accommodation

between institutional needs and objectives and the proyi-

sions of the Constitution that are of general application’ ’

(/d.). Although reaching the very same result without further

evidentiary hearings, the Court, in = compliance to

ee

the mandate of the Court of Appeals, disclaimed that it was

relying upon the rejected doctrine that proof of the availa-

bility of less restricted means demonstrated that prison of-

ficials had exaggerated their response to security concerns

(Mem. Op. Dec. 2, PA 28). Relying upon this Court’s quote

from Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-

69 (1963), that absent a showing of expressed intent to

punish, the determination of whether a condition is imper-

missible punishment ‘‘generally will turn on ‘whether an

alternative purpose to which (the restriction) may rationally

be connected is assignable for it, and whether it appears

excessive in relationship to the alternative purpose assigned

(to it.)’ '’ Wolfish, id. at 539. The District Court concluded

that each condition was excessive in relation to the alter-

native purpose, and therefore inferred an impermissible pu-

nitive purpose.

The validity of the District Court's determination de-

volves to whether its notion of ‘‘excessive’’ is consistent

with the principles promulgated by this Court. This Court

in Wolfish, and in prior decisions, provided considerable

insight into those conditions that might support a finding of

inferred punitive intent. This Court observed in footnote 20

in Wolfish ‘‘that in the absence of a showing of intent to

punish, a court must look to see if a particular restriction

or condition, which may on its face appear to be punishment,

is instead but an incident of a legitimate non-punitive gov-

ernmental objective. See Kennedy v. Mendoza-Martinez,

372 U.S. at 168. [L}oading a-detainee with chains and

shackles may ensure his presence at trial and preserve the

security of the institution. But it would be difficult to con-

ceive of a situation so harsh, employed to achieve objectives

that could be accomplished in so many alternative and less

harsh methods, would not support a conclusion that the

purpose for which they were imposed was to punish."

*

tae

—I5S—

Wolfish, n. 20 at 539; emphasis added.

This footnote suggests that absent an express intent to

punish, the condition must appear on its face to be punish-

ment; that to find the response to legitimate objectives to

be exaggerated, the condition itself must be very harsh, and

employed to achieve objectives that could be accomplished

by many alternative and less harsh means. In essence, there

must be such obvious alternative, less harsh means of

acccomplishing the same purposes, that the means chosen

are arbitrary and irrational.

The means chosen by the District Court and approved by

the Court of Appeals may be reasonable approaches, but

they are not the only reasonable means of providing op-

portunities for an inmate to visit with and maintain contact

with family and friends. The means chosen by the Sheriff,

which maximize the frequency of opportunity for visitation,

coupled with alternative means of maintaining contact with

family and friends through mail and regular phone calls,

does not appear overly harsh nor necessarily even preferable

to less frequent contact type visits as perceived by the Court.

**Governmental action does not have to be the only alter-

native or even the best alternative for it to be reasonable,

to say nothing of constitutional.’’ Wolfish, supra, n. 25 at

543. Only in the clearest of cases should the inferred pun-

ishment prong of the Wolfish test result in invalidating a

practice or condition that is directly and genuinely related

to real, serious, and specific security concerns.

**[T}he problems that arise in the day-to-day oper-

ations of a corrections facility are not susceptible of

easy solutions. Prison administrators therefore should

be accorded wide-ranging deference in the adoption

and execution of policies and practices that in their

judgment are needed to preserve internal order and

discipline and to maintain institutional security. [Ci-

a fG—

tations and footnotes omitted]. Such considerations are

peculiarly within the province and professional exper-

tise of corrections officials, and in the absence of sub-

stantial evidence in the record to indicate thai the of-

ficials have exaggerated their response to these

considerations, courts should ordinarily defer to their

expert judgment in such matters.’’ [Emphasis added].

Wolfish, supra, 547-48.

2. The Prohibition of Contact Visits Is Not Founded

on an Express Intent to Punish, and Is Directly

Related to Genuine, Serious Security Concerns.

It is clear from the record that the Court did not conclude

that the Sheriff's prohibition of contact type visitation was

founded on an express intent to punish. To the contrary the

District Court recognized that ‘‘the Sheriff and his staff fully

recognize the value of visitation’’ and commended them for

**the attention and effort that they devote to accommodating

such a large number of people’’ (Mem. Dec. 1, PA 50).

Nor can there be any doubt that the prohibition of contact

visitation is directly related to real, serious, and legitimate

security concerns. The Court recognized that the testimony

*‘demonstrated clearly the great burden that would be im-

posed upon the jail authorities and the public if . . . contact

visits were to be accorded all or most of the five thousand

prisoners at the jail. Expensive construction would be re-

quired in order to create a new, large and secure visiting

area that would be insulated from the jail and from the

outside by sally ports. The processing of visitors would have

to include careful identification, sometimes including in-

terviews, personal searches and the checking of hand-carried

articles. Prisoners necessarily would be strip-searched upon

leaving the visiting area. Substantially increased numbers

of guards would be required for visual surveillance and

supervision. (Para.) This complicated, expensive, and time-

vets

a

Mee ite

Le, ae

consuming process . . . inevitably would reduce far below

the present level of two thousand per day the numbers of

visits that could be accommodated’’ (Supp. Mem. Dec.,

PA 31).

The District Court further observed ‘‘that the establish-

ment of any program of contact visits does increase the

importation of narcotics into a jail, despite all safeguards

and precautions’’ (id., emphasis added), and recognized the

Sheriff's concerns ‘‘about the increased possibility of the

introduction of weapons and of escape attempts with the

taking of hostages’’ (/d.).

3. The Record Does Not Support the Court’s Conclu-

sion That the Prohibition of Contact Visits at the

Jail Was Such an Exaggerated Response to Security

Concerns That Punitive Intent May Be Inferred.

Notwithstanding the legitimate custodial interests under-

lying the Sheriff's determination not to permit contact vis-

itation at Central Jail, the District Court concluded that the

Sheriff should be able to adequately determine which in-

mates were narcotics or escape risks, that ‘‘|mJodest alter-

ation within the jail presumably could provide appropriate

space’’ [emphasis added], and that by limiting the number

of such visits to no more than 1,500 a week, ‘‘the scope,

burden, and dangers of the program would be substantially

reduced’’ (Supp. Mem. Dec., PA 33).

These conclusions are rather gratuitous in light of the

record.

The Sheriff maintained throughout the action that ‘*(t}here

are no rooms or facilities within the Central Jail or the new

addition thereto that are feasible for conversion to use for

contact type visits, even if the security risks were not pres-

ent’’ (Lonergan Affidavit, CT 269: 1-4 (Dk. 3061); admitted

into evidence by stipulation; JA 91). There is little com-

wa) an

pelling evidence in the record to the contrary.’

On the date the Court issued its opinion and judgment

reaffirming its orders concerning contact visits after remand,

counsel for the Sheriff asked the Court directly what was

contemplated by ‘‘modest alteration’ (RT (5/18/81) 17:6

to 18:7). Counsel requested the Court to clear up this finding

(id., RT 18:25 to 19:6). The Court replied: *‘Mr. Bennett,

that was two years ago. I had much better in mind the

testimony, my views as to the physical matters. One thing

that occurred to me is, if it’s necessary it could be done as

of that time, which would be, you can cart these people

over to Biscailuz Center. Now, don’t stick me with that.

My only concern is that I believe that if the Sheriff wants

to do it, he could find a way of doing it within the facilities

he has with or without modest alterations. That’s not my

department’’ (id., RT 19:7-16).

Although a facility might be built outside of the Jail, the

physical arrangement and flow patterns of the Jail (Loner-

gan, RT (11/9/78) 4447:7-22; Sumner, RT (11/9/78) 4606:2-

4608: 13; cf., Gaston, RT (11/8/78) 4316:2-4323:8), and the

difficulty of adequately classifying such large groups of

inmates make such a plan infeasible.*

Virtually all of the experts, both plaintiffs’ and defendants’ , agreed

with the Sheriff that contact visits are not feasible in the

oe , RT (11/9/78) 4540-4546; Sumner, RT (11 ) 4606:4-

; Gaston, RT (11/8/78) 4322:23-4323:8; . RT (11/10/78)

4186:20-4187. 14; Patterson, RT (11/10/78) . Only three sug-

that such visits might be ible if a new elaborate satellite

ility were constructed near the Jail to accommodate them ( .

ede anche fe class in some allo teeing 7 merely

i

eliminate significant ef other prisoners, but

snes tery eh oa

3s

_

La, ae. &

va’ an

The classification system at the Jail, although one of the

most sophisticated in the country (Giger, RT (9/22/77) 3198,

3226; Gaston, RT (11/8/78) 4314:13-4315:9), is a housing

classification system designed to segregate inmates as to the

degree of freedom they can be permitted within a secure

facility (Lonergan, RT (11/9/78) 4448:16-23), and is not

designed to, and is not adequate to make the more difficult

judgments required to safely permit contact visits in such

an institution (Lonergan, RT (11/9/78) 4448:23-4449:2;

4450:24).

Even if the classification system worked for this purpose,

the physical arrangement of the Jail precludes the necessary

separation of inmates to prevent the transfer of contraband

from those inmates permitted contact visits to those who

are not. Central Jail was designed with a flow pattern where

the inmates are allowed considerable freedom of movement,

and the officers themselves are, for the most part, separated

from the inmates, being locked, in essence, outside of the

cell blocks, with the exception of prow! officers (Lonergan,

RT (11/9/78) 4447:7-12). Preventing the commingling of

various classifications of prisoners is almost impossible.

Services such as eating, recreation, visiting, libraries,

schools, medical care, and the like, are centralized, and

inmates generally go to these activities either unescorted or

in large groups supervised by only one or a few officers.

Moreover, about one fifth of the pretrial inmates go to one

of 26 separate jurisdictional courts each weekday, and are

necessarily commingled by court designation for consid-

erable periods of time (JA 73-74, paras. XV. A.1-2).

Even if only lower security inmates are permitted contact

visits, within the custodial milieu, pressures are placed upon

i299...

such inmates by higher security inmates’ to accomplish their

deeds for them (Sumner, RT (11/9/78) 4610:14-4611:5; cf.

Gaston, RT (11/8/78) 4290:18-4291:2; 4293:23-4294:8).

Although the District Court suggested an alternative of

busing the inmates elsewhere for such visits, it takes little

imagination to visualize the impracticality of such an op-

eration. The Court anticipated that the number of inmates

might exceed 1,500 a week (Supp. Mem. Dec., PA 33).

This logistics problem would be compounded by the fact

that the Sheriff already is required to transport one fifth of

the pretrial population (700 to 1,000 inmates) a day out of

the Jail to 26 separate jurisdictional courts located over the

wide expanse of the County and back again at night — a

process which is necessarily fraught with considerable se-

curity problems,’ and one which the Court found involved

such a strain on the inmates and staff that it alone rose to

constitutional proportions (Mem. Dec. 1, PA 55-60).

Although contact visits are apparently feasibly permitted

at many prisons,'' and at some jails, that does not mean

they are constitutionally required or feasible at Central Jail

their RT (9/23/77) 3741-3745; Exhibits ES, ET;

of, Gaston, RT (11/8/78) 4325:15-4328).

.. Guajardo v. Estelle (S.D. Tex. 1977) 432 F.Supp. 1373, 1380,

ee eee ee

pos, | ae

be permitted al all institutions’’ (Wolfish, supra, at 1882).

Cf., Feeley v. Sampson, 570 F.2d 364 (ist Cir. 1978): ‘*That

institution may be constructed so that contact visits are more

manageable, or there may be other factors making such visits

feasible there. There may even be legitimate differences of

opinion among state and local authorities as to what practices

are safe within their particular institutions.”’

4. Tothe Extent the Denial of Contact Visitation Might

Implicate Other Constitutional Rights, Such as the

Freedom of Association, the Sheriff's Program of

Daily Non-Contact Visits, Combined With Other

Alternatives for Maintaining Relationships Through

Unlimited Mail and Regular Unmonitored Tele-

phone Calls, Is a Reasonable, Non-Content Restric-

tive, Time, Place, and Manner Regulation Justified

by Compelling Security Concerns.

Neither of the courts below identified any specific con-

stitutional right that was implicated with regard to contact

visitation other than the due process violation resulting from

the inferred intent to punish. In their brief in the Court of

Appeals, however, plaintiffs suggested that the denial of

contact visits implicates the constitutional right to freedom

of association belonging to prisoners and their visitors, cit-

ing Procunier v. Martinez, 416 U.S. 396, 408-9 (1974)

(Appellee’s Brief, Docket No. 81-5461, pp. 33 et seq.).

To the extent that the denial of physical contact during

visitation implicates the freedom of association, as plaintiffs

suggest, it is a permissible and reasonable, non-content re-

Striccive, time, place, and manner regulation necessary to

further significant governmental interests requiring limita-

tion on the constitutional rights of detainees.

The most significant interference with family relation-

ships is the fact of detention itself, to which the conditions

Pus

a, ; a

inherent in detention are clearly secondary.

Unlike the censorship of mail practices at issue in Pro-

cunier v. Martinez (1974) 416 U.S. 396, upon which plain-

tiffs rely, there is no censorship of the content communicated

to persons outside of the facility or with whom the com-

munication may be had. To the contrary, and unlike the

practice at many facilities that do permit some form of

contact type visiting, the Jail administrators do not place

any restrictions on whom the prisoners may visit, do not

monitor the visits, and do not impose intrusive security

measures that themselves are likely to have an adverse im-

pact on family relationships. Unlike other facilities that sig-

nificantly limit the frequency of visits, the Jail authorities

permit visits on a daily basis for 12 hours a day, permitting

an incredible 2,000 visits a day.

In addition to these relatively liberal visiting procedures,

the prisoners may maintain their family relationships through

the Jail’s liberal mail practices, and by virtue of the District

Court’s order regarding telephones, have the opportunity to

make regular unmonitored personal telephone calls.

While no doubt the ability to hug and touch a family

member may be an important aspect of a familial relation-

ship, as plaintiffs’ experts testified, to focus on this aspect

of the relationship alone is to lose sight of the entire picture,

and is contrary to the appropriate role of the courts in dealing

with detention conditions.

No one could reasonably contest that the frequency of

visits with family members is likewise an important con-

sideration in maintaining that relationship. Whether fre-

quency or physical contact is the most important, no doubt

could be the subject of some debate.

As the Court observed, the Sheriff recognizes the value

of visitation, and the Court commended him for his efforts

-

5593.

in permitting such a large number of visits. Although dis-

agreeing with the Sheriff on the extent of the impact on the

frequency of visits caused by permitting some contact vis-

itation, the Court clearly recognized that permitting contact

visitation would have an impact upon the frequency of visits

generally (Supp. Mem. Dec., PA 31). Although acknowl-

edging the intrusive nature of the security measures that

would be required to permit contact visits, the Court ap-

parently concluded that such measures were an appropriate

trade-off for the allowance of such visits.

The Court acknowledged the genuineness of the security

concerns presented by contact visitation, but disagreed with

the Sheriff as to the appropriate means of dealing with them.

In weighing all of these circumstances, the District Court

obviously reached a different conclusion than did the Jail

administrators. In such circumstances, ‘‘(p)roper deference

io the informed discretion of prison authorities demands that

they, and not the courts, make the difficult judgments which

reconcile conflicting claims affecting the security of the

institution’ and the needs of the inmates. Wolfish, supra,

n. 38.

5. The Weight of Existing Authority and Strong Policy

Considerations Favor Deferring to Jail Administra-

ters tho Sensttive Decision Whether to Permit Cen-

tact Visitation.

Prior to arid subsequent to this Court’s opinion in Wolfish,

courts at all levels remain in apparent conflict, at least in

terms of results reached, as to whether contact visits are

constitutionally mandated generally or at particular insti-

tutions, the weight of authority not requiring contact vis-

itation. See, e.g., Feeley v. Sampson, 570 F.2d 364, 373

(Ist Cir. 1978); Inmates of Allegheny Cnty. Jail v. Pierce,

612 F.2d 754, 757-761 (3d Cir. 1979); Oxendine v. Wil-

Ta, ¥ aa

liams, 509 F.2d 1405, 1407 (4th Cir. 1975); Jordan v.

Wolke, 615 F.2d 749, 751 (7th Cir. 1980); Ahrens v. Thomas,

570 F.2d 286, 290 (8th Cir. 1978); Ramos v. Lamm, 639

F.2d 559, 580 (10th Cir. 1980). Cf., Campbell v. Mc-

Gruder, 580 F.2d 521 (D.C. Cir. 1978); West v. Infante,

707 F.2d 58 (2d Cir. 1983); Jones v. Diamond, 636 F.2d

1363, 1377 (Sth Cir. 1981); Hutchings v. Corum, 501

F.Supp. 1276, 1296 (W.D. Wyo. 1980); Lock v. Jenkins,

464 F.Supp. 541, 550 (N.D. Ind. 1978), rev'd in part, 641

F.2d 488, 498; Cooper v. Morin, 49 N.Y .2d 69, 399 N.E.2d

1188, 1192 (1979) (not required on federal grounds, but

required on independent state grounds); /nmates of Sybil

Brand Inst. for Women v. County of Los Angeles, 130

Cal.App. 34 89, 110 (1982);'? In re Gallego, 133 Cal.App.

3d 75. Contra, Rhem v. Malcolm, 396 F.Supp. 1195, 1199-

1200 (S.D.N.Y.), aff'd, 527 F.2d 1041, 1043 (2d Cir.

1975); Forts v. Malcolm, 426 F.Supp. 464, 468 (S.D.N.Y.

1977); Detainees of Brooklyn House of Detention v. Mal-

colm, 421 F.Supp. 832 (E.D.N.Y. 1976); Campbell v.

McGruder, 416 F.Supp. 100, 105 (D.D.C. 1975), aff'd in

part, 580 F.2d 521, 547-48 (D.C. Cir. 1978); Miller v.

Carlson, 401 F.Supp. 835, 893-95 (M.D. Fla. 1975), aff'd,

563 F.2d 741; Mitchell v. Untreiner, 421 F.Supp. 886, 906

(N.D. Fla. 1976); O'Bryan v. County of Saginaw, 437

F.Supp. 582 (E.D. Mich. 1977); Jones v. Wittenberg, 440

F.Supp. 60, 158-59 (N.D. Ohio 1977).

In Pell v. Procunier, 417 U.S. 817 (1974) this Court

upheld a prison regulation prohibiting face-to-face inter-

for such visits, but women inmates of same jail system will not.

136 Cal Am 882. 11, oh . for Women v. County of Los Angeles,

whee Pity the Sheriff's denial of contact

<<, =

views between inmates and the press.

This Court touched upon, but declined to decide the ques-

tion of contact visits in Bell v. Wolfish, supra, 411 U.S. at

520, as the issue was not challenged in that appeal. How-

ever, this Court observed with regard to another issue, the

validity of strip searches conducted to discourage smuggling

of contraband during such visits, that the need for such

searches could be obviated by abolishing contact visitation

altogether. Thereafter, in another case, this Court reversed

and remanded the issue of contact visitation for reconsid-

eration by the Second Circuit in light of Bell v. Wolfish,

supra; Marcera v. Chindlund, 595 F.2d 1231 (2d Cir. 1979),

vacated, Lombard v. Marcera, 442 U.S. 915 (1979).

The question of contact visitation appeared to be pre-

sented for resolution with the granting of certiorari on that

issue in Jones v. Diamond, 636 F.2d 1364 (Sth Cir. 1981),

cert. granted sub nom., Ledbetter v. Jones, 452 U.S. 954

(1981); however, the matter was dismissed pursuant to Rule

53. Ledbetter v. Jones, 453 U.S. 950 (1981).

Not only does the weight of existing authority suggest

that contact visitation is not required for jail inmates, but

there are sound policy reasons for leaving the determination

as to whether to permit contact visitation at a particular

institution to that institution’s administrators, and the laws

and policies of the local governments where they are located.

Contact visitation presents a unique opportunity for the

introduction of drugs, weapons, and contraband into a fa-

cility, as well as opportunities for escape, the taking of

hostages, and injury to visitors, inmates, and staff. As the

District Court observed ‘‘the establishment of any program

of contact visits does increase the importation of narcotics

into a jail, despite all safeguards and precautions’. (Supp.

Mem. Dec., PA 31; emphasis added). A similar conclusion

oy

4

ai

. dt Lis, Nok 3

26m

with regard to the other risks is supported by the record as

well. On the other hand, the opportunity to embrace one’s

wife, hug one’s children, or to have physical contact with

persons that are emotionally close is likewise important, and

may have tangential benefits within the facility in terms of

reducing inmate tensions, easing the transition back to free-

dom, or facilitating ultimate rehabilitative efforts.'’

Given the real and serious risks inherent in any program

of contact visitation, the sensitive decisions weighing the

risks and benefits, determining how much risk to assume

and at what cost are the very type of decisions that are most

appropriately left with those persons charged with and trained

in the operation of the institution.

Certainly, courts should take action to ensure that con-

stitutional rights are observed. But when the practice in

question, such as here, is related so directly and inherently

to genuine and serious security concerns, the court should

be most reluctant to interfere with the jailor’s assessment.

This analysis does not mean, as the Court of Appeal

apparently feared, that an institution’s security interests

always predominate (Op., PA 8), nor does it ignore the

importance of visitation to inmates, or the adverse psycho-

logical effects that might be caused by the lack of physical

contact with family members, as testified to by plaintiff's

experts.

It reflects, rather, a healthy sense of realism that the

management and operation of a jail is difficult and intract-

able, involving sensitive judgments concerning the secure

housing of persons confined against their will, to many of

whom violence is no stranger, where the compulsion to

a

obtain drugs and other contraband may override rationality,

and where the cost of miscalculation may be human life,

and its forfeit instant.

6. The Decision Below Concerning Cell Searches Is

Indistinguishable in Terms of Reasoning and Relief

Ordered From That Rejected in Wolfish.

Jail authorities conduct thorough searches of inmate cells

and housing areas to locate contraband or other items not

allowed in the cells (Mem. Dec. 1, PA 60-61) sometimes

in the absence of prisoner occupants'* (JA 72, para. XII.

A.1). The plaintiffs admit that such searches ‘‘are necessary

to maintain the security of the facility, prevent escapes,

maintain order, and minimize the potential for injury to

inmates and staff’ (JA 72, para. XII. A.2).

Under the former practice a team of officers would enter

and search an entire housing area after the inmates were

removed or were outside of their housing areas for other

activities such as meals, recreation periods, or the like. In

such fashion the searches could be conducted reasonably

quickly with some frequency, with little disrupiion to the

search, and without preventing the inmates from engaging

in other activities occurring elsewhere in the jail.

Although admitting the necessity for such searches, the

prisoners contend, as did the prisoners in Wolfish (United

States ex rel. Wolfish, supra, 439 F.Supp. at 148-49) that

their property was left in disarray, that items were unnec-

essarily removed and destroyed, and that valuable property

_ saeroms Gtenra tn WAR. oe eeetion wine or tv tix prnae

**shakedown"’ searches of ae ee es ee eee ee

cells, en eee ee information or cause. of

individual cells may be in of some inmates. Cf., United

States ex rel. W v. Levi, 439 F.Supp. 114, 148 (S.D.N.Y. 1977).

The Sheriff's procedures are set forth in Exhibits BR, BO, A

(pp. 18, 31-32), CC and DD (PCO, admitted facts, CT! 423:10-13).

“A

"9 7

a,

was taken without a receipt being given (Mem. Dec. |, PA

61). The Sheriff insisted that the searches were accom-

plished with minimum disruption to the inmates’ posses-

sions (id.).

In its initial decision, as with the lower court in Wolfish,

without making specific findings resolving the conflicting

testimony as to the manner in which the searches were

conducted, the Court ordered that ‘‘|fjuture shakedowns

should be made while the respective inmates remain outside

their cells but near enough to observe the process and raise

or answer any relevant inquiry’’ (Mem. Dec. |, PA 61). In

doing so the District Court relied, in haec verba, on the

very reasoning of Judge Frankel, disapproved in Wolfish:

** ‘Allowing inmates to observe from a reasonable

distance the searching of their rooms would go far to

eliminate these grounds of complaint. An officer viewed

by the owner is more likely to fulfill the stated duty

to put things back as they were. The claim of stolen

property is far less likely to be made, the grounds for

suspicion, or ostensible suspicion, being largely ob-

viated. Having one's things searched is no pleasure in

the best of circumstances. Being denied the right even

to watch the invasion is a blunt oppression.’ '' (Mem.

Dec. 1, PA 61).

In response to the Court's decision, the Sheriff developed

four alternative procedures to comply with Court's order,

nk Qe

first demonstrated method, method A, involved searching

all of the cells in a row while the inmates remained in the

dayroom, a method similar to the Sheriff's invalidated pro-

cedure. In method C, the method ultimately endorsed by

the Court, after all inmates were removed to a dayroom,

the men occupying a particular cell were brought back from

the dayroom and positioned under guard outside of their

cell while it was being searched. When the search of that

cell was completed, the men were locked in their cell and

the remaining cells were searched successively in the same

manner (id.). All agreed that the other two methods, meth-

ods B and A, were so unsatisfactory and expensive that they

were rejected outright (id.).

Although the District Court found little difference be-

tween methods A and C in terms of time and expense (id.,

PA 35-36), it is obvious that both methods A and C are far

more complex, time consuming, and disruptive than the

former procedures which permitted a team to search all or

many of the cells at the same time, rather than one by one,

without need to identify, escort, and guard the occupants

of a cell as the search was conducted because all or most

of the inmates were away from the housing area for meals

or other activities.

The District Court and the Court of Appeals, with one

dissent, sought to distinguish the intervening opinion of this

Court in Wolfish holding that a similar order was not con-

stitutionally required.

As ably pointed out in the dissent in the Court of Appeals

(Op., PA 15-17), the distinctions are without substance.

First, the District Court and the Court of Appeals distin-

guished Wolfish on the grounds that the District Court in

Wolfish didn’t give adequate weight to the official's security

concerns, including specifically the concern that inmates j

ae —

—O—

wou!d frustrate the search by distracting personnel and mov-

ing contraband ahead of the search team (Op., PA 10; Mem.

Dec. 2, PA 27).

As pointed out by the dissent, however, ‘‘it is factually

inaccurate to state that the District Court in Wolfish did not

also weigh those concerns, See United States ex rel. Wolfish

v. Levi, 439 F. Supp. 114, 148-49(S.D. N.Y. 1977)"’ (Op.,

dissent, PA 16). The problem with the district courts’ anal-

ysis, both in Wolfish and here, is that not sufficient weight

was given to those concerns which were dismissed as spec-

ulative, not being supported by strong empirical examples

(Wolfish v. Levi, supra at 149). The District Court's dis-

missal of the Sheriff's concerns in this case is little different.

The District Court did not deal at all with most of the

security concerns of the Sheriff. The Sheriff offered testi-

mony that permitting inmates to observe cell searches, even

under the ordered procedure, would interfere with the like-

lihood of locating contraband,'* disrupt the jail operation,"’

lead to friction between inmates and guards," create risk of

harm to inmates and staff,'’ and would be less efficient and

more costly (Lombardi, RT 4120:20-23).

"*If the inmates observe where and how searches are conducted, they

ssemn Tae See pa TiSe coeaonas Danenee 5) Dove le ton ae

the concomitant notice of the search gives inmates an

an —* seat aad uecmaeeecnmcaaton RT 4117:9-12; A117 20.

"By more deputies who must leave other tasks elsewhere

in the jail, and inmates at one location, from other ac-

tivities. for long nha ate (257 ay dpa 8:17-4120:17).

"Inmates become more likely to get into altercations with

rutting shave a10621-34% ond cones tneunies teh hk ore be

of the altercatiuns and fnction.

EE ——_—

i134...

Second, the lower courts in this case sought to distinguish

Wolfish on the grounds that the Court of Appeals in Wolfish

did not identify the constitutional provision on which it

relied, and the District Court in Wolfish found a fourth

amendment violation which the Supreme Court ruled to have

been in error. Here, it is contended that the District Court

founded its decision on the due process clause, to discourage

the improper handling and confiscation of inmate property.

The distinction is inaccurate and erroneous. The Second

Circuit in Wolfish explicitly noted that cell searches could

give rise to a due process claim in certain circumstances.

See 373 F.2d at 131, n. 29. More fundamentally, the District

Court here relied in haec verba upon the very reasoning of

the District Court in Wolfish, that permitting inmates to

observe the searches would deter or eliminate the grounds

for the inmates’ concerns about mishandling and confis-

cation of their property. (Cf., United States ex rel. Wolfish

v. Levi, 439 F.2d at 149; Mem. Dec. 1, PA 61).

Moreover, this Court specifically rejected the deterrent

effect as a basis for requiring the inmates’ presence during

searches, noting that even if there were abuses by guards

in handling the prisoners’ property, that the litigation was

not an action for damages, but an action to enjoin the search

rule in its entirety. ‘‘When analyzed in this context, proper

deference to the informed discretion of prison authorities

demands that they, and not the courts, make the difficult

judgments which reconcile conflicting claims affecting the

security of the institution, the welfare of the prison staff,

and the property rights of detainees.’’ Wolfish, supra, n.

38 at 441 U.S. 557.

Moreover, there is little reason to believe that permitting

the occupants of a particular cell to observe the search of

their cell would be as effective in deterring abuse as the

District Court contempiated based upon its brief one-time

a

observation of the procedures and its brief inquiry of two

inmates. Assuming that the deputies were motivated to reg-

ularly abuse the search procedures, one would certainly

expect the presence, in the midst of litigation, of a federal

judge, counsel, and supervisory staff to motivate the deputies

to act with the utmost respect and discretion. Whether the

presence of the few inmate occupants of a particular cell in

less official circumstances would have similar deterrent ef-

fect is less certain. The effective deterrent to such inexcus-

able abuse of authority must be found elsewhere, through

training, supervision or damage actions.

The lower courts in Wolfish, and the lower courts here

considered the same concerns of both inmates and jail staff,

and ordered the same relief. This Court rejected that approach

in Wolfish, and it should reject it here, as well.

CONCLUSION.

For these reasons the Court should reverse the opinion

of the Court of Appeals for the Ninth Circuit of July 14,

1983, affirming the Judgment of the District Court of the

Central District of California of August 8, 1980, requiring

the Sheriff of Los Angeles County to permit contact visit-

ation, and to conduct routine cell searches in the presence

of available inmates at the Los Angeles County Central Jail.

Respectfully submitted,

FREDERICK R. BENNETT,

Principal Deputy County Counsel,

Counsel for Petitioners.

APPENDIX.

Constitutional and Statutory Provisions.

United States Constitution, Amendment 14.

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens

of the United States and the State wherein they reside. No

State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States;

nor shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.

United States Code, Title 28.

$1343. Civil rights and elective franchise.

The District Courts shall have original jurisdiction of any

civil action authorized by law to be commenced by any

person:

(1) To recover damages for injury to his person or prop-

erty, or because of the deprivation of any right or privilege

of a citizen of the United States, by any act done in

furtherance of any conspiracy mentioned in section 1985

of Title 42.

(2) To recover damages from any person who fails to

prevent or to aid in preventing any wrongs mentioned in

section 1985 of Title 42 which he had knowledge were

about to occur and power to prevent;

(3) To redress the deprivation, under color of any State

law, statute, ordinance, regulation, custom or usage, of

any right, privilege or immunity secured by the Consti-

tution of the United States or by any Act of Congress

providing for equal rights of citizens or of all persons

within the jurisdiction of the United States;

naliiainn

(4) To recover damages or to secure equitable or other

relief under any Act of Congress providing for the pro-

tection of civil rights, including the right to vote.

$2201. Creation of remedy.

In a case of actual controversy within its jurisdiction,

except with respect to Federal taxes other than actions brought

under section 7428 of the Internal Revenue Code of 1954,

any court of the United States, upon the filing of an appro-

priate pleading, may declare the rights and other legal re-

lations of any interested party seeking such declaration,

whether or not further relief is or could be sought. Any such

declaration shall have the force and effect of a final judgment

or decree and shall be reviewable as such.

$2202. Creation of remedy.

Further necessary or proper relief based on a declaratory

judgment or decree may be granted, after reasonable notice

and hearing, against any adverse party whose rigiits have

been determined by such judgment.

United States Code, Title 42.

$1983. Civil Action for Deprivation of Rights.

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory,

subjects, or causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured

by the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper

proceeding for redress.