Petition for Writ of Certiorari — Frey v. Masters

Supreme Court brief1989

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No.

IN THE of =

SUPREME COURT OF THE UNITED STATES

October Term, 1989

RICHARD A. FREY, JR., Director,

Metropolitan Corrections Department,

THERESA BANKS, VICKI WIMBS,

Corrections Officers,

WILLIAM P. ROSE and LARRY NAJJAR,

Corrections Sergeants

: Petitioners

versus

KAREN B. MASTERS Respondent

On Writ of Certiorari to the United States Court of Appeals

for the Sixth Circuit ©

PETITION FOR WRIT OF CERTIORARI

N. SCOTT LILLY

First Assistant County Attorney

1001 Fiscal Court Building

Louisville, Kentucky 40202

(502) 625-6336

Counsel for Petitioners

WESTERFIELD-BONTE CO.. 619 W. KENTUCKY=-P.O. BOX 3251, LOUISVILLE, KY

QUESTIONS PRESENTED FOR REVIEW

Are individual Jefferson County Jail employees pro-

tected by the qualified immunity defense established by

Harlow v. Fitzgerald, 457 U.S. 800 (1982), where Plain-

tiff, a traffic misdemeanant, was strip searched in con-

formity with a U.S. District Court Consent Decree that

endorsed strip searching all detainees when they are

about to enter the Jefferson County Jail’s security

perimeter and come in contact with the Jail’s general

population ?

Did the Sixth Circuit err in deciding the U.S. District

Court Consent Decree endorsing Jefferson County’s

strip search policy had no preclusive effect on the Plain-

tiff’s strip search claims?

LIST OF PARTIES TO PROCEEDING BEFORE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

1. The names of the Appellants in the proceeding be-

fore the United States Court of Appeals for the Sixth Cir-

cuit were:

a) Bobby G. Crouch, Chief of the Jefferson County

Police Department.

b) Officer Joseph Barrows, Jefferson County Police De-

partment.

ce) Officer Roger Calhoun, Jefferson County Police De-

partment.

d) Richard A. Frey, Jr., Director, a Correc-

tions Department.

e) Theresa Banks, Corrections Officer, Metropolitan

Corrections Department. :

f) Vicki Wimbs, Corrections Officer, Metropolitan Cor-

rections Department.

g) William P. Rose, Sergeant, Metropolitan Corrections

Department.

h) Larry Najjar, Sergeant, Metropolitan Corrections

Department.

_ Chief Crouch, Officer Barrows, and Officer Calhoun are

not Petitioners in this action as their appeal was favorably

resolved by the Sixth Circuit.

2. The Appellee in the United States Court of Appeals

for the Sixth Circuit was Karen B. Masters, who is the

Respondent in this action.

iil

TABLE OF CONTENTS

PAGE

Questions Presented for Review ..............-.... i

List of Parties to Proceeding Before United States

Court of Appeals for the Sixth Circuit ........... il

as acc hstewnsnesevesertisvecns ili—iv

Table of Authoritios ...............cccccecccecvass v-vi

Reference to Reports ...............0- ss eee eee eens vii

Statement of Jurisdictional Grounds ............... viii

Pertinent Constitutional Provisions, Treaties, Stat-

utes, Ordinances and Regulations. ............... ix- x

Statement of the Case .................... ce eee ees 1- 4

alse tap cecasaccseesevesecss 4-28

is 5 ka bas canes tavavesnttuce 28-30

Oertificate of Service ..............cccc cece cccees 31

ENE eee ee eee la-80a

Masters v. Crouch, et al., No. 85-5477, Slip Opinion,

i ee ets been eecees la-17a

Masters v. Jefferson County, et al., C87-0450-L(J),

Memorandum Opinion (4/18/88) ........... 18a-26a

Masters v. Jefferson County, Et Al., supra, Order

Den. Motions (W.D. Ky. 4/18/88) ............. 27a

Masters v. Crouch, et al., No. 85-5477, Judgment,

ice ais ws hae bu cwas vee 8 28a

Masters v. Crouch, et al., Order Den. Reh. En Bane

re 29a

Masters v. Jefferson County, supra, Plaintiff's First

Amended Complaint (10/20/87) ............30a-42a

Masters v. Jefferson County, supra, Answer to First

Amended Complaint (10/29/87) ............ 43a—48a

PAGE

Tate v. Frey, No. 75-0031-L(A), “Order Certifying

Class”, (W.D. Ky. 8/15/80), tendered in sup-

port of Defendants’ Motion to Dismiss filed

LR/TBIEE inna cd ee nnne ven. senemaieneeess 49a-50a

Tate v. Frey, No. 75-0031-L(A), “Stipulation of Set-

tlement of Class Action” (Consent Decree) (W.D.

Ky. 10/1/85), tendered in support of Defend-

ants’ Motion to Dismiss filed 12/18/87 -..... 5la—76a

Masters v. Jefferson County, supra, Affidavits of

Corrections Officers Banks and Wimbs tendered

in support of Defendants’ Motion to. Dismiss

ak TEFEN i i Wovaccddvcsstadecwaveuenes® 77a-80a

si fi.

TABLE OF AUTHORITIES

Cases: PAGE

Anderson v. Creighton, 483 U.S. __, 97 L. Ed. 2d

523, 107 S. Ct. 3034 (1987) ....... 5, 6, 7, 11, 15, 16, 17,

18, 19, 20, 28, 29

Armstrong v. Board of School Directors of City of

Milwaukee, 616 F. 2d 305 (7th Cir. 1980) ... .25, 28, 29

Baker v. McCollan, 443 U.S. 137, 61 L. Ed. 2d 433,

Se es I EE 45k c cw acc scawiweaeeees 4

Balbirer v. Austin, 790 F. 2d 1524 (11th Cir. 1986) . .26, 27

Bell v. Wolfish, 441 U.S. 520, 60 L. Ed. 2d 447, 99

D.C BONE CODD. aioe ese enn cans 5, 8, 11, 15, 18, 28

Davis v. Scherer, 468 U.S. 183 at 195, 82 L. Ed. 2d

Diy SW Ws. Ce, EN CROOE) occ iccccccescccces 7

Dobrowolskyj v. Jefferson County, 823 F. 2d 955

(Gam Chr. TSGT) .cicascs 5, 11, 12, 13, 14, 16, 17, 19, 29

Firefighters Local Union No. 1784 v. Stotz, 467 U.S.

561, 104 S. Ct. 2576, 81 L. Ed. 2d 483 (1984) ...22, 27

Giles v. Ackerman, 746 F. 2d 614 (9th Cir. 1984),

cert. denied, 411 U.S. 1053 (1985) ............. 14

Harlow v. Fitzgerald, 457 U.S. 800 (1982) ..... 4, 5,6, 11,

15, 16, 17, 18, 19, 20, 28

Hill v. Bogans, 735 F. 2d 391 (10th Cir. 1984)...... 14, 15

Logan v. Shealy, 660 F. 2d 1007 (4th Cir. 1981), cert.

denied sub nom. Clements v. Logan, 455 U.S. 942

EE Ch aecid cds kwessabersahex ine teeks 14

Mary Beth G. v. City of Chicago, 723 F. 2d 1263 (7th

CU SN Sb a vbbss wrens bwhabaecetenerceons 13

Masters v. Crouch, No. 88-5477, Slip Op. (6th Cir.

PE, ns kkc as ceananw wna 5, 10, 13, 14, 21, 22, 23, 26

Mitchell v. Forsyth, 472 U.S. 511, 86 L. Ed. 2d 411,

eg es Re OG ey ae ee 3

Parklane Hosiery Company v. Shore, 439 U.S. 322,

99 S. Ct. 645, 58 L. Ed. 2d 552 (1979) ......... 24

Spilman v. Harley, 656 F. 2d 224 (6th Cir. 1981) . . .26, 27

J’ PAGE

Tate v. Frey, No. 75-0031-L(A), “Stipulation of Set-

tlement of Class Action” (W.D. Ky. 10/1/85). .3, 9, 11,

12, 19, 23, 24, 25, 29, 30

Tinetti v. Wittke, 479 F. Supp. 486 (E.D. Wis. 1979),

aff’d, 620 F. 2d 160 (7th Cir, 1980) ............ 13-14

United States v. Athlone Industries, Inc., 746 F. 2d

CUCM ns ceed ene eesccaesseeawesesae 21, 22, 27

United States v. Jefferson County, 720 F. 2d 1511

PRUNE, GUND hc skew Caedasd ea ewdinciews 22, 24, 27

Wallace v. King, 626 F, 2d 1157 (4th Cir. 1980).... 17

Vii

REFERENCE TO THE OFFICIAL AND UNOFFICIAL

REPORTS OF THE LOWER COURTS OPINIONS

1. Masters v. Crouch, et al., No. 88-5477, Slip Op. (6th

Cir. 4/18/89).

2. Masters v. Crouch, et al., No. 88-5477, Order Den.

Reh. En Bane (6th Cir. 7/14/89).

3. Masters v. Jefferson County, et al., C87-0450-L(J),

Memo. Op. and Order (W. D. Ky. 4/14/88) (Unpublished).

viii

STATEMENT OF JURISDICTIONAL GROUNDS

The Petitioners seek review of the judgment entered by

the United States Court of Appeals for the Sixth Cireuit in

the case of Masters v. Crouch, et al., No. 88-5477, Slip Op.

(4/18/89). These Petitioners timely sought a rehearing

en bane by the Sixth Cireuit which was denied by order

dated July 14, 1989. The Supreme Court’s jurisdiction to

review this Petition for Writ of Certiorari is invoked pur-

suant to 28 U.S.C. § 1254(1) and in conformity with 28

U.S.C. § 2101(¢) and Supreme Court Rules 20 and 21.

PERTINENT CONSTITUTIONAL PROVISIONS,

TREATIES, STATUTES, ORDINANCES

AND REGULATIONS

Fourth Amendment, United States Constitution.

The right of the people to be secure in their persons,

heuses, papers, and effects, against unreasonable

searches and seizures, shall not be violated and no War-

rants shall issue, but upon probable cause, supported

by Oath or affirmation, and particularly describing the

place to he searched, and the persons or things to be

seized.

Fourteenth Amendment, Section 1, United States Con-

stitution.

All persons born or naturalized in the United States

and subject to the jurisdiction thereof, are citizens of

the United States and of 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.

42 U.S.C. § 1983.

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

regulation, custom or usage, of any State or Territory

or the District of Columbia, subjects, or causes to be

subjected, any citizen of the United States or other per-

son within the jurisdiction thereof to the deprivation

of any rights, privileges or immunity secured by the

Constitution and laws, shall be liable to the party in-

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

proceeding for redress. For the purposes of this section,

any Act of Congress applicable exclusively to the Dis-

trict of Columbia shall be considered to be a statute

of the District of Columbia.

No.

SUPREME COURT OF THE UNITED STATES

October Term, 1989

Ricnwarp A. Frey, Jr., Director,

Metropolitan Corrections Department,

THERESA BANKs, VickI WIMBs,

Corrections Officers,

WituiAM P. Rose and Larry Nassar,

Corrections Sergeants - - - Petitioners

KAREN B. MASTERS - - - - Respondent

ON WRIT OF CERTIORARI TO THE UNITED STATES ©

COURT OF APPEATS FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

May it Please the Court.

STATEMENT OF THE CASE

On July 31, 1986, Karen Masters, the Respondent

herein and the Plaintiff in the District Court, was cited

for having an expired registration plate and for failing

to maintain insurance on her automobile. After ap-

pearing twice in the Jefferson District Court, August

21 and September 25, 1986, the Plaintiff’s third appear-

ance date was scheduled for October 23, 1986, and she

was given a reminder card reflecting only the Court

division and date. This third appearance date, how-

ever, mistakenly was recorded by the Jefferson District

Court Judge as being October 16 rather than October 23.

On October 21, 1986, Masters was arrested pursuant

to bench warrants issued by the Jefferson District Court

for her failure to appear on the erroneously recorded

October 16, 1986 court date. Because she protested the

arrest and showed Officer Joseph Barrows of the Jef-

ferson County Police Department the reminder card,

Officer Barrow telephonically confirmed the bench war-

rants, placed Masters under arrest and made arrange-

ments for Officer-Roger Calhoun to transport Masters

to the Jefferson County jail operated by the Metropoli-

tan Corrections Department (hereafter, ‘‘Corrections

Department’’).

Upon arrival at Corrections, Masters again pro-

tested her arrest and showed Corrections personnel her

court reminder card. Masters was then frisked by Cor-

rections officer Theresa Banks and placed in a holding

room where, according to the Plaintiff, another female

Corrections officer required the other women in the

holding area to leave and made the Plaintiff open her

blouse for a visual inspection. She was then finger-

printed and photographed before being returned to the

holding area. At approximately 7:30 P.M. that even-

ing, Masters was taken to the female section of the Cor-

rections Department, which is within the security peri-

meter of the jail, where Corrections officer Vicki

Wimbs conducted a strip search of the Plaintiff in a

private room. Although no body cavity search occurr-

ed, Plaintiff was required to drop her underpants and

expose her rectum after which she was given prison

dress and placed in a cell where she remained until re-

leased on her own recognizance sometime later that

evening.

On July 23, 1987, Masters filed a Complaint in the

United States District Court for the Western District

of Kentucky alleging a cause of action pursuant to 42

U.S.C. $1983 for her arrest, detention and strip search.

In addition to claiming deprivation of her Constitu-

tional rights under the Fourth, Fifth, Eight, Ninth and

Fourteenth Amendments against the police officers, jail

personnel and their governmental employers, Masters

also asserted pendant state tort claims. After all De-

fendants answered in due course, they filed a joint mo-

tion to dismiss with a supporting memorandum assert-

ing Masters had failed to state a claim upon which

relief could be granted as to all Defendants and assert-

ing the qualified immunity of the individual Defend-

ants. Among other arguments proffered by Defend-

ants, they asserted the individual Defendants were

entitled to qualified immunity on Masters strip search

claims and that such claims were precluded as to all

defendants because of the Consent Decree entered in

Tate v. Frey, U.S. District Court No. 75-0031-L(A)

(hereafter, Consent Decree). The Consent Decree set-

tled a class action suit against Jefferson County chal-

lenging numerous alleged constitutional frailties in the

operation of the jail aud included a detailed section on

the use of strip searches. Masters also filed her own

Partial Motion for Summary Judgment seeking a dec-

laration the Corrections Department strip search policy

was unconstitutional. [Ky Memorandum Opinion and

Order entered April 18, 198, the trial court denied all

aspects of the Defendants’ Motion to Dismiss and the

Plaintiff’s Motion for Partial,Summary Judgment.

The Defendants then filed a timely appeal of the trial

court’s decision; see, Mitchell vy. Forsyth, 472 U.S. 511

(1985). The requisite briefs were filed by the parties,

oral argument was had and the Sixth Circuit issued its

Slip Opinion on April 18, 1989. In sum, the Sixth Cir-

cuit determined all Defendants were protected by qual-

ified immunity pursuant to the standard set forth in

Harlow v. Fitzgerald, 457 U.S. 800 (1982), on Masters

claims of unlawful arrest pursuant to the erroneously

issued albeit facially valid arrest warrants due to the

decision in Baker v. McCollan, 443 U.S. 137 (1979).

The Sixth Circuit also held, however, the Corrections +

Defendants were not entitled to such immunity on

Plaintiff’s Fourth Amendment strip search claims even

though the Sixth Cireuit acknowledged the District

Court had found Masters had been strip s@arched in

accordance with the Consent Decree. Finally, the

Sixth Cireuit held there was no showing in the record

before them the Consent Decree precluded Plaintiff

from challenging the strip search policy of Jefferson

County and remanded the case for further proceedings.

ARGUMENT

I. Are Individual Jefferson County Jail Employees Pro-

tected by the Qualified Immunity Defense Established

by Harlow v. Fitzgerald, 457 U.S. 800 (1982), where

Plaintiff, a Traffic Misdemeanant, was Strip Searched

In Conformity with a U.S. District Court Consent De-

cree That Endorsed Strip Searching All Detainees When

They are About to Enter the Jefferson County Jail’s

Security Perimeter and Come In Contact with the Jail’s

General Population.

Petitioners’ argument can be simply summarized.

Because Plaintiff’s strip search was performed accord-

ing to the terms of a federal court Consent Decree gov-

erning jail operations, for purposes of the qualified |

immunity defense under Harlow, supra, Petitioners

TT eT | a yo

were entitled to rely on the Consent Decree as justifica-

tion for the strip search. Thus, in light of the Consent

Decree, Petitioners, as a matter of law, could reason-

ably believe their actions were lawful; see, Anderson v.

Creighton, 483 U.S. —, 97 L. Ed. 2d 523, 107 S. Ct. 3034

(1987) ; and conformed to this Court’s Fourth Amend-

ment standards for strip searches established in Bell v.

Wolfish, 441 U.S. 520, 60 L. Ed. 2d 447, 99 S. Ct. 1861

(1979). Indeed, even the Sixth Circuit previously has

held Jefferson County’s strip search policy conforms

to the Consent Decree and is constitutionally permissi-

ble in the context of another case involving a male mis-

demeanant pre-trial detainee whose strip search oceur-

red under substantially similar circumstances as this

case; see, Dobrowolsky)j v. Jefferson County, 823 F. 2d

955 (6th Cir. 1987). Therefore, the Sixth Circuit’s de-

cision in Masters v. Crouch, No. 88-5477, Slip Op. (6th

Cir. 4/18/89) denying qualified immunity to the indi-

vidual Jefferson County jail Defendants not only is

inconsistent with its prior decision in Dobrowolsky)j,

supra, but this Court’s decisions in Harlow, Anderson

and Bell.

As previously stated, the Petitioners assert the

Sixth Cirecuit’s ruling the individual jail Defendants

are not entitled to the Harlow qualified immunity for

Plaintiff’s strip search is erroneous especially in light

of this Court’s subsequent decision in Anderson, supra.

Harlow grauts qualified immunity from liability to

government officials if the Plaintiff’s rights, either un-

der the Constitution or the laws of the United States,

were not clearly established at the time of a defend-

ant’s challenged acts. Such objective standard simpli-

fied the application of the qualified immunity defense.

In this regard, the Harlow Court noted:

Reliance on the objective reasonableness of an

official’s conduct as measured by reference to

clearly established law, should avoid excessive dis-

ruption of government and permit the resolution

of many insubstantial claims on summary judg-

ment. On summary judgment, the judge appropr-

iately may determine, not only the currently appli-

cable law, but whether that law was clearly estab-

lished at the time an action occurred. If the law

at that time was not clearly established, an official

could not reasonably be expected to anticipate sub-

sequent legal developments, nor could he fairly be

said to ‘‘know”’ that the law forbade conduct not

previously identified as unlawful. [footnotes

omitted], Harlow, supra, at p. 818.

More recently, this Honorable Court again exam-

ined qualified immunity and closely scrutinized the

standard of ‘‘clearly established law’’ in the case of

Anderson v. Creighton, supra. In remanding the

ease for further consideration, the Anderson Court

explained a plaintiff could not avoid the immunity

defense merely by generally pleading an official’s act

constituted a deprivation of the plaintiff’s rights guar-

anteed by the Constitution. In refining the definition

when a right is clearly established, the Court stated :

It should not be surprising, therefore, that our

cases establish that the right the official is alleged

to have violated must have been ‘‘clearly estab-

lished’? in a more particularized, and hence more

relevant sense: The contours of the right must be

sufficiently clear that a reasonable official would

understand that what he is doing violates that

right.

Further, in determining the Court of Appeals had

erred by not applying the proper standard, the Ander-

son Court provided rationale which Petitioners believe

is particularly critical to the instant matter:

It simply does not follow immediately from the

conclusjon that it was firmly established that war-

rantless searches not supported by probable cause

and exigent circumstances violate the Fourth

Amendment that Anderson’s search was objec-

tively, legally unreasonable. We have recognized

that it is inevitable that law enforcement officials

will in some cases reasonably, but mistakenly con-

clude that probable cause is present, and we have

indicated that in such cases those officials - like

other officials who act in ways they reasonably

believe to be lawful - should not be held personally

liable. [citation omitted], (emphasis added)

Anderson, supra, 97 L. Ed. 2d at p. 531.

In essence, then, the qualified immunity rule is

meant to give public officials insight into when “‘. . .

they reasonably can anticipate when their conduct may

give rise to liability for damages. . .”’. Davis v. Sch-

erer, 468 U.S. 183 at 195, 82 L. Ed. 2d 139, 104 S. Ct.

3012 (1984). Thus, in accordance with Anderson,

supra, for the purpose of establishing whether the

instant Petitioners are entitled to qualified immunity,

it is necessary to examine the applicable law governing

strip searches within the particularized and more rele-

vant sense of the circumstances of the instant case.

The bedrock Supreme Court case setting the stand-

ard under the Fourth Amendment by which strip

searches are to be judged is Bell v. Wolfish, 441 U.S.

520, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979). In that

case, among other issues, this Court was asked to exam-

ine whether strip searches of pre-tria! detainees after

every contact visit from a person outside the institution

could be conducted on a less than proable cause. In

holding that strip searches including visual body cavity

inspection was not violative of the Fourth Amendment

in the context of the case, the Supreme Court estab-

lished a balancing test to determine the reasonableness

of a search under the Fourth Admendment:

The test of reasonableness under the Fourth

Amendment is not capable of precise definition or

mechanical application. In each case, it requires

a balancing of the need for the particular search

against the invasion of personal rights that the

search entails. Courts must consider the scope of

a particular intrusion, the manner in which it is

conducted, the justification for initiating it, and

the place in which it is conducted. [citations omit-

ted]. Id., 441 U.S. at 559.

Thus, there are four elements to the test: (15 the scope

of the search; (2) the manner in which the search is

conducted ; (3) justification for the search ; and (4) the

place the search is conducted. Within the context of

the instant matter, three of the four elements are not

the subject of real dispute; the scope, manner and place

of the strip search.’ The critical issue here which the

Defendants believe has been erroneously determined

1See, Plaintiff’s First Amended Complaint, Para. 16, (App. 36a)

and Affidavits of Corrections Officers Banks and Wimbs in Support

of Motion to Defendants’ Motion to Dismiss (App. 77a-80a).

by the District Court and the Sixth Circuit is the just-

ification of the Plaintiff’s strip search.

It has been the Petitioners’ consistent position the

justification for Respondent’s strip search was auto-

‘matically triggered by the terms of a consent decree

approved by the United States District Court in the

ease of Tate v. Frey, No. 75-0031-L(A), ‘Stipulation

of Settlement of Class Action’’ (hereafter ‘‘Consent

Decree’’), (W.D. Ky. 10/1/85), (App. 51a). The Con-

sent Decree settled a class action suit against Jefferson

County challenging numerous alleged constitutional

frailies in the operation of the jail. Four separate sub-

classes were represented in the Tate v. Frey litigation,

one of which was designated the ‘‘female pre-trial

detainee’ subclass as ‘*. . . composed of all female

prisoners who are now or will be confined in the Jef-

ferson County Jail and are awaiting trial, and not serv-

ing sentence for any misdemeanor or felony convic-

tion.”’ Tate v. Frey, No. C75-0031-L(A), Order Certi-

fying Class (W.D. Ky. 8/15/80) (App. 49a).

The Tate v. Frey litigation challenged jail conditions

under the First, Fourth, Sixth, Eighth, Ninth and

Fourteenth Amendments resulting in a detailed Con-

sent Decree that included a specific section, Section

XXIII, addressing the Tate Plaintiffs’ Fourth Amend-

ment concerns and requiring specific seareh policies to

be followed by the jail. Specifically, the relevant por-

tion of the Consent Decree pertaining to strip searches

found in Section X XITI reads in pertinent part:

The following general guidelines are incorporated

into the jail search policies. —

(a) All inmates under the control of the jail

are subject to search at all times.

(b) Inmates will be searched by employees of

their gender.

conducted in private.

(d) All inmates entering or leaving the secu-

rity perimeter will be strip searched, except in-

mates in the front holding areas who will only be

strip searched upon reasonable belief that a strip

search is required for security purposes as de-

scribed in Item (g) below.

(emphasis added) Consent Decree, Section X XITI,

pp. 22-23 (App. 69a).

As the Plaintiff’s First Amended Complaint indi-

eates at paragraph 16 (App. 36a), in conformity with

the affidavit of Corrections Officer Wimbs (App. 79a)

filed in support of Defendants’ Motion to Dismiss in

District Court, Plaintiff’s strip search occurred imme-

diately prior to her entry into the security perimeter of

the Jefferson County Jail in conformity with the above

required jail search policies established by the Consent

Decree. It is also critical to Petitioners’ argument that

the District Court found the Plaintiff was a class mem-

ber bound by the Consent Decree’, a fact implicitly

acknowledged by the Sixth Circuit in their decision,

Masters v. Crouch, et al, No. 88-5477, Slip. Op. at p. 4

2Masters v. Jefferson County, et al., C87-0450-L(J), Memo. Op.

at p. 5, (W.D. Ky. 4/18/88), (App. 22a).

(6th Cir. 4/18/89) (App. 4a).° Thus, in conformity

with both lower courts’ findings in this regard, Peti-

tioners were entitled to rely on the Consent Decree as

justification for Plaintiff’s strip search and, for quali-

fied immunity purposes, they reasonably could have

believed their actions did not violate the clearly estab-

lished law of Bell v. Wolfish. To put it succinctly

within the context of the particularized and revelant

circumstances of this case as required by Anderson, to

be deprived of qualified immunity, Petitioners would

have to have understood clearly established law pre- .

vented strip searching minor traffic misdemeanants

not merely in the general context of detention but in

the specific context of a governing federal court

approved consent decree which had established a jail’s

security needs such as to justify strip searching all

who enter the jail’s security perimeter. ;

No such clearly established law existed at the time

of Plaintiff’s arrest or at present. However, the per-

tinent clearly established law which does exist for the

Harlow/ Anderson inquiry is the Sixth Circuit’s own

decision in Dobrowolskyj v. Jefferson County, supra.

There, as here, Dobrowolskyj was arrested on a mis-

demeanor charge and taken to the Jefferson County

jail where, after a period of time, he was moved to the

rear security area and subjected to a strip search just

as the instant Plaintiff was when she was moved to the

’There, the Sixth Circuit said:

‘*The district court found that the strip search was conducted

pursuant to provisions of a consent decree previously entered

by another division of the court in a class action, Tate v. Frey,

W.D. Ky. No. 75-0031-L(A)-’’

female section. Subsequently, Dobrowolskyj sued the

Corrections Department, its director and Jefferson

County claiming tkat the County’s automatic strip

search policy upon movement into a security perimeter

without a reasonable suspicion of contraband violated

the Fourth Amendment. After a jury returned a ver-

dict for the Defendants, Dobrowolsky] appealed to the

Sixth Cireuit which ruled Jefferson County’s strip

search policy conformed to constitutional requirements.

In that regard, the Sixth Circuit specifically stated :

We hold that Jefferson County’s strip search pol-

icy is constitutional and, accordingly, affirm the

rulings of the District Court.

Dobrowolskyj was strip searched before he

was moved to the rear area. The movement and

search were in accordance with departmental pol-

icy which had been approved by the District Court

in the Tate v. Frey Consent Decree. Dobrowol-

skyj, supra at p. 956."

Thus, under circumstances substantially similar to the

instant case, the Sixth Cireuit explicitly approved def-

ferson County’s strip search policy of strip searching

4As the Sixth Cireuit noted in Dobrowolskyj, the relevant part

of the Corrections Department policy. conforming to the Consent

Decree reads:

All inmates will be thoroughly’searched each time an inmate

passes from one security area to another, being prepared for

transportation both between floors and externally, and upon

admission to the Department. All newly admitted inmates to

the Department will be frisked searched upon arrival to the

Department and strip searched immediately prior to the move-

ment of the inmate to rear security, female section or other

areas of the Department. /d.

inmates when they enter a security perimeter. As the

Sixth Circuit noted:

Second, and more important, Jefferson County’s

policy was not a blanket search of all detainees as

in the policies held unconstitutional in the above

cases, but a more narrowly drawn policy of search-

ing only those detainees who are required, by force

of circumstance, to be moved into the general jail

population.

The security interests of the jail in conducting a

search at this point were strong. Dobrowolskyj

was about to come into direct contact with the

general jail population, including prisoners who

would then be moved into all sections of the jail.

The jail had legitimate interests in preventing the

flow of contraband into the other sections of the

jail. Dobrowolsky)j, supra, at p. 959.

It is beyond cavil the above language from Do-

browolskyj comports with the Petitioners’ analysis

herein and they are entitled to qualified immunity in

the particularized and relevant circumstances of the

instant strip search. Yet, the Sixth Circuit’s decision

below inexplicably denied the Petitioners’ qualified

immunity and sought to distinguish its ruling in Do-

browlsky).

To compound their error in this regard, the Sixth

Circuit also erroneously analogized the Consent Decree

strip search policy, i.e., strip searching upon entrance

into a security perimeter, with cases from other juris-

dictions involving blanket searches of all pre-trial de-

tainees. At pages 10-12 of the Sixth Cirecuit’s opinion

in Masters, supra, they cite Mary Beth G. v. City of

Chicago, 723 F. 2d 1263 (7th Cir. 1983); Tinneti v.

Wittke, 479 F. Supp. 486 (E.D. Wis. 1979), aff’d, 620

F. 2d 160 (7th Cir. 1980); Logan v. Shealy, 660 F. 2d

1007 (4th Cir. 1981), cert. denied sub nom. Clements v.

Logan, 455 U.S. 942 (1982); Hill v. Bogans, 735 F. 2d

391 (10th Cir. 1984) ; and Giles v. Ackerman, 746 F. 2d

614 (9th Cir. 1984), cert. denied, 411 U.S. 1053 (1985),

as authority that clearly established law in other cir-

cuits demonstrated the instant Plaintiff’s strip search

was unreasonable because of the minor nature of her

offense and the fact there was no individualized reason-

able suspicion of her carrying contraband. Masters v.

Crouch, supra, at p. 14 (App. 14a).

The Sixth Circuit’s emphasis on those foreign juris-

diction cases to the exclusion of its own previous de-

cision in Dobrowolskyj, however, confirms the Sixth

Circuit’s misapplication of the qualified immunity

standard in the instant case. ‘Two critical factors rele-

vant to Dobrowolskyj and the instant case manifestly

distinguish them from the foreign strip search cases

cited by the Sixth Circuit. First, and foremost, none

of the cited cases involved a strip search conducted with

the imprimatur of a federal court consent decree. Sec-

ond, the searches in the cited cases, unlike the instant

search policy of all pretrial detainees or were not con-

ducted in private.

The case the Sixth Circuit found most similar to

the instant matter, Hill v. Bogans, supra, cited at p. 12

of Masters, supra, (App. 12a), is a good example of

the Sixth Circuit failing to consider the two distin-

guishing critical factors. In Hill, the plaintiff was

stopped for an expired inspection sticker and was ar-

rested on an outstanding bench warrant that should

have been cleared when the plaintiff had previously

paid a fine for the underlying traffic violation. Despite

his protests, he was taken to jail where he was subse-

quently subjected to a visual strip search before being

intermingled with the general prison population. Un-

like the instant case, the defendants in Hill were not

acting pursuant to a consent decree which had estab-

lished the security need justification for their strip

search policy. Further, while acknowledging that in-

termingling with the general jail population is an im-

portant factor for the Bell v. Wolfish analysis, the Hill

decision hinged on the fact Hill was strip searched in

a room with 10 or 12 other detainees, Hill, supra, at pp.

394-395, a critical factor simply not present in this case.

Thus, Hill does not qualify as clearly established law

applicable to the case as it lacks the analogous relevant

and particular circumstances required by Anderson,

supra.

Having patently distinguished the authority relied

on by the Sixth Circuit as being irrelevant in the par-

ticularized sense of this case, the inevitable conclu-

sion is again demonstrated that Harlow and Ander-

son, supra, dictate Petitioners are entitled to quali-

fied immunity. Other than the general balancing test

for measuring the reasonableness of strip searches un-

der the Fourth Amendment as established by Bell v.

Wolfish, supra, the only clearly established law upon

which Petitioners could be bound or which they could

reasonably anticipate to be binding, was the Consent

Decree, and Dobrowolskyj, supra.’ Therefore, the

Sixth Circuit erred when it held contrary to the Peti-

tioners’ argument on the qualified immunity issue and,

instead, focused its attention solely on the Consent De-

cree and Dobrowolskyj in the context of Petitioners’

claim preclusion argument.

The Sixth Cirecuit’s error in this regard can only

be attributed to a misconception of the application of

the qualified immunity standard as opposed to the im-

position of liability on governmental entities for un-

constitutional policies. The clear intent of Harlow and

Anderson are to protect well-meaning public officials

from liability in situations where the parameters of a

plaintiff’s right are not sufficiently clear such that a

reasonable official would know his actions violate that

right. If an official acts in a way he ‘‘reasonably be-

lieves to be Jawful”’, Anderson, supra, 97 L. Ed. 2d at

p. 531, he should not be held personally liable.

Having operated under the Consent Decree for a

year prior to the incident here and having litigated the

strip search issue under substantially similar circum-

stances in Dobrowolsky)j, supra, it would certainly be

an anomaly in the context of qualified immunity if the

instant Petitioners were suddenly deprived of reliance

on those two authorities, held personally liable for ac-

5It cannot be gainsaid the Sixth Cireuit’s curious dismissal of

Dobrowolskyj as applicable authority on the qualified immunity

issue is puzzling. As previously noted, Dobrowolskyj was arrested

on a minor offense, was strip searched under the identical cireum-

stances as the instant case and pursuant to the same Consent De-

cree. The Sixth Circuit ignoring its own demonstrably analogous

authority is simply inexplicable.

oe Gare.

tions taken in good faith based on those authorities and

told they should have anticipated their conduct would

give rise to such liability. Such is the incongruity pre-

sented by the Sixth Circuit’s opinion below, an opin-

ion Petitioners assert conflicts with the protective pur-

pose of qualified immunity enunciated in Harlow and

Anderson: to protect conscientious public officials from

personal liability and harassing litigation arising from

the good faith discharge of their official responsibili-

ties. Even if the Sixth Cireuit is correct neither the

Consent Decree nor Dobrowolskyj, supra, preclude

Plaintiff’s claims challenging the Jefferson County

jail’s strip search policy, such determination does not

disqualify the individual Defendants from being dis-

missed on the basis of qualified immunity because they

applied the policy to the PlAintiff. The reason lower

~ level public officials should not be held liable in such

context was succinctly stated in Wallace v. King, 626

F. 2d 1157, 1161 (4th Cir. 1980) :

On the other hand, law enforcement officials should

not be held personally liable for monetary damages

because they have followed the policy or the in-

structions of their superiors, where the controlling

law had not been authoritatively decided by the

Supreme Court, the appropriate United States

Court of Appeals or the highest court of the state,

where the officers have acted in good faith, and

where the searches were conducted in a reasonable

manner as shown by the evidence in this case. In-

sofar as the judgment below absolved the defend-

ants from monetary liability to the plaintiffs, it

should be affirmed.

Based on the foregoing analysis, the Sixth Cireuit’s

decision below denying the individual jail Defendants

qualified immunity patently conflicts with this Court’s

decision in Harlow and Anderson, supra. Bell v. Wol-

fish, supra, established the four factor test under the

Fourth Amendment for the conduct of strip searches:

(1) scope of search, (2) manner of search, (3) justifica-

tion for the search, and (4) the place the search is con-

ducted.’ All four elements having been satisfied in the

context of this case because of the Consent Decree, the

individual jail Defendants are entitled to dismissal of

Plaintiff’s claims against them on the basis of quali-

fied immunity. The Sixth Cireuit’s decision to the

contrary based upon the supposed clearly established

law of other jurisdictions generally holding blanket

searches of minor traffic misdemeanants ignores the

particularized relevant circumstances of this case.

OT AAI PRET ETAT

First, Jefferson County’s policy as established by

the Consent Decree is not a blanket policy of strip

searching traffic misdemeanants or, for that matter, any

misdemeanants. Strip searches occur only for secur-

ity purposes when any detainee is about to enter the

jail’s security perimeter and be intermingled with the

general inmate population. Second, and more impor-

®Petitioners would observe Bell makes no mention of the nature

of the detainee’s charges as a determinative factor justifying a

strip search and, instead, emphasizes the security needs of a secure

detention facility. It is apparent to Petitioners that the authori-

ties condemning blanket strip searches of minor offenders rely too

heavily on the nature of a detainee’s charges when in fact the cir-

cumstances of every case cited by the Sixth Cireuit demonstrate

the facility’s security needs were not yet compromised or the strip

search was not conducted in private.

p |

tant, none of the cited cases involve governmental en-

tities operating their jail and conducting strip searches

under the authority of a federal court approved consent

decree. Thus, there was no clearly established law with

respect to strip searches conducted pursuant to a fed-

eral court approved consent decree except the Tate v.

Frey litigation and Dobrowolskyj, supra, where the

Sixth Circuit held the strip search policy at issue here

to be constitutional within the context of a substantially

similar case.

Further, regardless of the Sixth Circuit’s present

view of the Consent Decree strip search policy or the

meaning of Dobrowolskyj, the individual defendants

are still shielded by qualified immunity. ‘To now de-

prive Petitioners of qualified immunity for having fol-

lowed a policy approved by a federal district court and

upheld by a prior analogous decision of the Sixth Cir-

cuit would set a precedent clearly in confliet with the

teachings of Harlow and Anderson. The implications

of such an anomalous precedent in the qualified im-

munity body of law would have universal adverse re-

percussions to lower level government employees oper-

ating any aspect of a governmental entity pursuant to

a federal consent decree. No longer could they point

to the approval of the challenged policy in the federal

consent decree and avoid personal liability in a subse-

quent civil rights suit even if the plaintiff was a class

member bound by the consent decree. Nor could gov-

ernmental entities ever comfortably enter into a class

action consent decree if any prospective member of the

class could subsequently disavow its terms and chal-

lenge the constitutionality of a policy explicitly ap-

proved by such consent decree. Foreclosing the defense

of qualified immunity in such circumstances certainly

‘*. . . would destroy ‘the balance that [the Supreme

Court] cases strike between the interests and vindica-

tion of citizens’ constitutional rights and in public

officials’ effective performance of their duties’ by mak-

ing it impossible for officials *reasonably [to] anticipate

when their conduct may give rise to liability for dam-

ages.’ ’’ [citation omitted]. Anderson, supra, 97 L. Ed.

2d at p. 530.

Due to the conflict between the Sixth Cirfeuit’s de-

cision below and this Court’s decisions in Harlow and

Anderson, supra. Petitioners pray this honorable Court

to grant certiorari, reverse the Sixth Cireuit and re-

mand the case to them with appropriate instructions

the individual Defendants are entitled to qualified im-

munity as a matter of law.

II. Did the Sixth Circuit Err In Deciding the United States

District Court Consent Decree Endorsing Jefferson

County’s Strip Search Policy Had No Preclusive Effect

on the Plaintiff’s Strip Search Claims.

Petitioners also assert the Sixth Cireuit erred in

not giving preclusive effect to the Consent Decree with

respect to Plaintiff’s challenge to Jefferson County’s

strip search policy. Specifically, the Sixth Cireuit

held:

To hold that the Consent Decree prevents Mrs.

Masters from relying on the clearly established

law relating to strip searches of traffie violators

and other von-violent minor offenders would be to

accord the Decree an unwarranted preclusive ef-

sent WE let RT ti ce eo heme a “LE

fect. There is no showing of the record before us

that any party in Tate v. Frey, was being detained

in the Jefferson County jail for a traffic violation

or similar non-violent offense. Nor is there any

showing that the issue of the constitutionality of

strip searches of such inmates was litigated in Tate

v. Frey . .. The record in this case provides no

basis for the Defendants’ claim that Mrs. Masters

is precluded from challenging the strip search.

Masters, supra at p. 15.

Thus, despite the District Court’s determination Mas-

ters was a member of the Consent Decree subclass com-

prising ‘‘female pre-trial detainees’? and was bound

by the Consent Decree; see, Masters v. Jefferson Coun-

ty, et al., No. 87-0450-L(J), Memo. Op. at p. 5 (W.D.

Ky. 4/18/88) (App. 22a); the Sixth Circuit ruled the

Plaintiff was not a class member so bound and, further,

the constitutionality of strip searches of detainees

similar to Ms. Masters was not an issue in the con-

sent decree litigation. As a matter of law, the Peti-

tioners contend the Sixth Circuit was in error on both

determinations.

In answer to the Plaintiff’s First Amended Com-

plaint, the Defendants asserted the Plaintiff was bound

by the Consent Decree, thus precluding her strip search

claims; see, Answer to First Amended Complaint,

Para. 8, 10/29/87 (App. 44a). The Petitioners there-

fore, do not contest the general proposition that a party

asserting the preclusion defense has the burden of

establishing the defense; see, United States vy. Athlone

Industries, Inc., 746 F. 2d 977 (1984). It is the Peti-

tioners’ position, however, that having pled the binding

nature of the Consent Decree on Plaintiff’s strip search

claims, the extent of the Consent Decree’s application

must be determined from the four corners of that docu-

ment, Firefighters Local Union No. 1784 v. Stotz, 467

U.S. 561, 104 S. Ct. 2576, 81 L. Ed. 2d 483 (1984). If

the Consent Decree demonstrates Piaintiff was a mem-

ber of a class bound by it and the Consent Decree liti-

gation resolved the issue of strip searches, then the

Consent Decree should be given preclusive effect just

as an ordinary judgment entered by the court. United

States v. Jefferson County, 720 F. 2d 1511 (11th Cir.

1983). The Consent Decree has been a critical part

of the record in this case in both courts below and a

cursory examination of its contents patently demon-

strates its collateral estoppel effect on Plaintiff’s

elaims. In that regard, Petitioners will demonstrate

beyond eavil the Consent Decree was a final determina-

tion on the merits of the strip search policy issue, that

the Consent Decree involved a subclass which included

the Plaintiff and the instant litigation challenging the

strip search policy is the same cause of action resolved

by the Consent Decree; see, United States v. Athlone

Industries, Inc., supra, at p. 983.

To determine whether the instant Plaintiff is a

member of one of the four subclasses bound by the

Consent Decree, it is only necessary to examine the

‘Order Certifying Class’’ entered in Tate v. Frey,

No. C75-0031-L(A) (W.D. Ky. 8/15/80) (App. 49a)."

7This Order, as was the Consent Decree itself, was an exhibit

to the Defendants’ Motion to Dismiss in the District Court and was

included in the Appendix before the Sixth Cireuit, just as it is

included in the Appendix to this Petition.

Bh BE ET AR int clnatil S

So eo

The very first subclass identified by that Order is de-

nominated the ‘‘female pre-trial detainee’’ subclass

which ‘*. . . is composed of all female prisoners who

are now, or will be confined in the Jefferson County

jail and are awaiting trial, and not serving sentence

for any misdemeanor or felony conviction. (emphasis

added). As consistently argued by the Petitioners, and

as determined by the District Court in its Memorandum

Opinion at page 5 (App. 22a). When the Plaintiff was

processed into the Jefferson County jail, she was a

member of the ‘‘female pre-trial detainee’’ subclass

such that she was bound by the Consent Decree. Ob-

viously, until such time as the Plaintiff posted bond or

was released on her own recognizance, she was confined

to the Jefferson County jail and was awaiting trial on

her misdemeanor traffic charges. Nonetheless, the Sixth

Circuit took it wpon itself to ignore the clear definition

of the ‘‘female pre-trial detainee’’ subclass and unilater-

ally determine without any basis in the record before

it that the Plaintiff was not a member fairly included

in that class. Masters v. Crouch, supra, at p. 15 (App.

15a).

To compound their error, the Sixth Cireuit went

on to note the Co sent Decree did not evidence ‘‘. .

that the issue of constitutionality of strip searches of

such inmates [as plaintiff] was litigated in Tate v.

Frey.’ Id. The second paragraph of the Consent De-

cree, however, patently refutes this finding as it un-

arguably asserts the 7'ate v. Frey plaintiffs included

Fourth Amendment search and seizure claims in their

complaints. Such paragraph states;

, ~ 24

Plaintiff’s Complaint herein, as amended and sup-

plemented, charged in substance that inmates of

the Jefferson County Corrections Department were

being incarcerated under conditions which voilated

the First, Fourth, Sixth, Eighth, Ninth and Four-

teenth Amendments to the United States Constitu-

tion, in violation of Section 1983 and 1985 of the

Title 42 of the United States Code, and in viola-

tion of State law. That as a result of such inear-

ceration, Plaintiff and other members of the class

were damaged. (emphasis added). Tate v. Frey,

supra, “Stipulation for Settlement of Class Ac-

tion,’? (Consent Decree) (W.D. Ky. 10/1/85)

(App. 5la-52a).

Not only did the Consent Decree specifically reference

the Fourth Amendment claims of the plaintiff class,

but an entire section of the Consent Decree, Section

XXIII, pp. 21-23 (App. ...), is devoted to jail search

policies. The record before the Sixth Circuit, is irre-

futable the instant Plaintiff is both a member of the

‘‘female pre-trial detainee’’ subclass and the Consent

Decree litigation undeniably resolved the Fourth

Amendment strip search policy issue the Plaintiff here

seeks to relitigate on the same statutory basis, 42 U.S.C.

§1983.

Only where a party or a privy had not had an op-

portunity to litigate an issue is it a violation of due

process for a litigant tc he bound by a prior judgment;

see, Parklane Hosiery Company v. Shore, 439 U.S. 322,

99 S. Ct. 645, 58 L. Ed. 2d 552 (1979). Otherwise, as

succinctly stated in United States v. Jefferson County,

supra, at pp. 1517-1518:

Pe Ta a

an Se eo bene meat OY eRe wa RNS

A eas ace

The principals of res judicata and collateral estop-

pel apply to consent decrees as well as to ordinary

judgments entered by a court. These doctrines

prevent the attack of a prior judgment by parties

to the proceedings and by those with sufficient

identity of interest with such parties that their

interests are deemed to have been litigated in those

proceedings.

Federal Courts have historically viewed consent decree

resolution of complex class action disputes, especially

civil rights cases, as having a favored status in the law.

As succinctly stated in a school desegregation case,

Armstrong v. Board of School Directors of City of

Milwaukee, 616 F. 2d 305, 312-313 (7th Cir. 1980) :

It is axiomatic that the federa! courts look with

great favor upon the voluntary resolution of liti-

gation through settlement. [citations omitted].

In the class action context in particular, ‘‘there is

an overriding public interest in favor of settle-

ment.’’ [citation omitted]. Settlement of the

complex disputes often involved in class actions

minimizes the litigation expenses of both parties

and also reduces the strain such litigation imiposes

upon already scarce judicial resources.

The Seventh Cireuit’s rationale is equally appli-

cable to tthe instant matter where Jefferson County set-

tled a complex class action suit involving the operation

of its jail. Petitioners having demonstrated from the

Order Certifying Class and the Consent Decree in the

Tate v. Frey litigation that the instant Plaintiff is a

class member bound by the terms of such documents, the

Sixth Cireuit’s decision to deny the preclusive effect of

the Consent Decree cannot withstand superficial seru-

tiny. Indeed, the Sixth Circuit merely cites two cases,

Balbirer v. Austin, 790 F. 2d 1524 (11th Cir. 1986) and

Spilinan v. Harley, 656 F. 2d 224 (6th Cir. 1981) for the

simple proposition ‘‘a consent judgment cannot consti-

tute collateral estoppel unless the party pleading col-

lateral estoppel proves from the record of the prior case

or through extrinsic evidence that the parties intended

the consent judgment to operate as a final adjudication

of a particular issue.’’ Masters v. Crouch, supra, at p.

15 (App. 15a). Aside from the fact the record proves

the Consent Decree is controlling and the strip search

policy issue has been finally adjudicated, the Sixth Cir-

cuit cited authorities are wholly dissimilar to the in-

stant case.

In the first instance, neither of the cases cited by

the Sixth Cireuit were class action consent decrees in

the civil rights context as both merely involved bank-

ruptey proceedings and the dischargeability of certain

debts previously the subject of state court judgments.

Second, and more important, i neither case did the ap-

pellate court make a final determination of the preclu-

sive effect of the proffered consent judgments and both

courts remanded the cases to the district courts with

specific instructions to determine from the respective

records the extent to which the consent judgments

should be given preclusive effect. Thus, even if the

record before the Sixth Circuit in the instant case was

insufficient to make a determination of the preclusion

issue with respect to the Consent Decree, although Pe-

titioners believe they have shown the record was more

than adequate, the Sixth Circuit’s own authority man-

eat lite OR i NO Sa A te ke be ee

dates the case be remanded to the District Court for a

full examination of the preclusion issue. The Sixth

Circuit’s authorities, therefore, do not derive their

holdings from the common nucleus of civil rights class

actions as do the cases cited by Petitioners involving

Title VII and school desegregation class actions. Fur-

ther, the record before the Sixth Circuit is conclusive,

even under a fair reading of Balbirer and Spilman,

supra, that the instant Plaintiff is a member of a sub-

class bound by the Consent Decree and the issue of

Jefferson County’s strip search policy was finally ad-

judicated by that document,

Moreover, the Sixth Circuit’s failure to accord pre-

clusive effect to the Consent Decree is inapposite to

the holdings of Firefighters Local Union No. 1784 v.

Stotz, supra, U.S. v. Jefferson County, supra, and U7.S.

v. Athlone Industries, Inc., supra. The application of

the Consent Decree must be determined from the four

corners of the document. Because the conditions and

requirements contained therein demonstrate the Con-

sent Decree was a final determination on a cause of

action identical to the basis of the instant Plaintiff’s

strip search claims, as well as Plaintiff’s membership

in an affected class, the foregoing authorities require

the Consent Decree be given preclusive effect just as

any ordinary judgment entered by a court.

Finally, the Consent Decree must be given pre-

clusive effect in light of the foregoing because to do

otherwise would significantly deviate from the broadly

accepted policy in complex federal class actions that

the *‘overriding public interest”’ is best served by volun-

iinieiasiaeie ie

tary settlement through consent decrees because they

minimize the parties litigation expenses and ‘‘reduce

the strain such litigation imposes upon already scarce

resources.’’ Armstrong, supra, at pp. 1312-1313. Pat-

ently, the Sixth Circuit’s decision below denies the Pe-

titioners the very protection it sought by entering into

the Consent Decree and certainly subverts the forego-

ing axiom universally accepted in the federal courts.

Therefore, based on the foregoing authorities and argu-

ments, Petitioners pray this honorable Court grant cer-

tiorari, reverse the Sixth Circuit’s holding of the claim

preclusion issue and remand this case to the Sixth Cir-

cuit with instructions to dismiss Plaintiff’s challenge

to the strip search policy as precluded by the Consent

Decree.

CONCLUSION

The Petitioners believe there are special and im-

portant reasons for granting certiorari in this case.

The Sixth Circuit’s decision denying the Petitioners

the protection of qualified immunity directly conflicts

with the holdings of this Court in Harlow v. Fitzgerald,

supra, and Anderson v. Creighton, supra. It was in-

cumbent upon the Sixth Circuit in deciding the quali-

fied immunity issue to examine the clearly established

law within the particularized and relevant circum-

stances of this case. Simply stated, Petitioners could

not be denied qualified immunity unless they reason-

ably should have known it was clearly established

that strip searches conducted pursuant to a consent

decree recognizing the security needs of a jail did not

ee i as. an *

ee ere ee ee

comport with the Fourth Amendment under the stand-

ards set forth in Bell v. Wolfish, supra.

In that regard, the Sixth Circuit could not ignore

its own applicable legal precedent of Dobrowolskyj v.

Jefferson County, where a minor misdemeanant had

been strip searched under substantially similar circum-

stances to the instant Plaintiff and pursuant to the

strip search policy established by the same Consent

Decree. Pursuant to the authority of the Consent De-

cree and Dobrowolskyj, supra, it is manifest the Peti-

tioners should have been granted immunity because to

do otherwise would be contrary to the purpose of the

immunity: to protect conscientious government officials

from personal liability and harassing litigation when

they have acted in a manner they reasonably believe to

be lawful. Anderson vy. Creighton, supra.

Further, Petitioners also argue certiorari should be

granted to review the Sixth Circuit’s error in failing

to give preclusive effect to the Consent Decree on Plain-

tiff’s challenge to the strip search policy approved by

the federal court in that document. Such determina-

tion by the Sixth Circuit is a significant departure from

the generally accepted axiom in federal litigation that

consent decrees, especially those in the class action con-

text serve an important public interest in reducing liti-

gation expenses and alleviating the burden on judicial

resources caused by such complex litigation; see, Arm-

strong Vv. Board of School Directors of City of Mil-

waukee, supra. The record before the Sixth Circuit

clearly shows the Plaintiff was a member of a sub-class

bound by the Tate v. Frey Consent Decree and that the

Fourth Amendment search issue now asserted by Plain-

tiff was fully litigated and determined by the terms

of the Consent Decree. As a matter of law, Plaintiff

should be estopped from pursuing this collateral attack

on the terms of the Consent Decree.

For the reasons asserted herein, Petitioners respect-

fully pray this Court to grant certiorari in this ease,

reverse’ the Sixth Circuit and remand the case with

instructions to grant Petitioners’ judgment on their

qualified immunity defense and to dismiss Plaintiff’s

challenge to the strip search policy as being precluded

by the Tate v. Frey Consent Decree.

Respectfully submitted,

N. Scorr LItty

First Assistant County Attorney

1001 Fiscal Court Building

Louisville, Kentucky 40202

(502) 625-6336

Counsel for Petitioners

CERTIFICATE OF SERVICE

I hereby certify three (3) copies of this Petition for

Writ of Certiorari were served this day of October,

1989, upon Gregory A. Bolzle and Patrick W. Michael,

Woopwarp, Hosson & Futon, 2500 First National Tower,

Louisville, Kentucky, Counsel for Respondent, by deposit-

ing said documents in a United States Post Office mailbox,

first-class postage prepaid, and addressed to the forego-

ing counsel of record at their above post office address, all

in conformity with Supreme Court Rule 28.3. Pursuant to

Supreme Court Rule 28.5, all parties ired to be gerved

with copies of this Petitg

N. Scorr Litty

Counsel for Petitioner

APPENDIX

RECOMMENDED FOR FULL TEXT PUBLICATION

See, Sixth Circuit Rule 24

UNITED STATES COURT OF APPEALS

No. 88-5477

FOR THE SIXTH CIRCUIT

Karen B. Masters, - - - - Plaintiff-Appellee,

Bossy G. Croven, et al., - - Defendants-Appellants.

On Appeal from the United States District Court

for the Western District of Kentucky

Decided and Filed April 18, 1989

Before: MERRITT and MILBURN, Circuit Judges;

and LIVELY, Senior Circuit Judge.

LIVELY, Senior Circuit Judge. This action under 42

U.S.C. § 1983 presents two claims of constitutional viola-

trons in connection with the plaintiff’s arrest and detention.

The plaintiff’s first claim is that the arresting officer and

detention personnel violated her Fourteenth Amendment

right not to be deprived of liberty without due process of

law by failing to investigate sufficiently to determine whet-

her a warrant for her arrest had been issued by mistake.

Her other claim is that a strip search of the plaintiff at the

Jefferson County jail was unreasonable, and therefore vio-

lated the Fourth Amendment. The defendants, officers and

employees of Jefferson County, Kentucky, filed a motion to

dismiss on the basis of qualified immunity and for failure

to state a claim. The district court denied the defendants’

motion, and this appeal was brought pursuant to 28 U.S.C.

§ 1291. Mitchell v. Forsyth, 472 U.S. 511, 524-30 (1985).

We affirm in part, reverse in part, and remand for further

proceedings.

The facts as stated in the complaint are treated as true.

All events occurred in 1986. On July 31 Karen Masters, a

resident of Jefferson County, received two traffic tickets—

one for operating an automobile with expired registration

plates, and the other for failure to maintain auto insurance.

As directed by the citation, Mrs. Masters appeared before

the Jefferson District Court at a neighborhood government

center on August 21 at 7:00 p.m., and pled not guilty. After

a second appearance the court directed her to appear before

Division 102 of the District Court at the downtown justice

center on October 23 at 9:00 a.m. A deputy sheriff in atten-

dance gave the plaintiff a “reminder card” containing this

information. However, the plaintiff’s name did not appear

on the ecard. By mistake, the judge who presided at the sec-

ond appearance recorded the plaintiff’s next appearance

date as October 16 rather than October 23.

On October 21, at about 3:00 p.m. the defendant Bar-

rows, a county police officer, arrested Mrs. Masters at her

home for failure to appear in court on October 16. The

plaintiff protested that her appearance date was October

23, not October 16, and showed Barrows the reminder card.

The officer confirmed the existence of the arrest warrant

for Karen Masters and refused the plaintiff’s request to

call an attorney. Officer Barrows took the plaintiff and her

two young children in a squad car to the home of Mrs. Mas-

ters’ mother, where the children were left. He then took

the plaintiff to a public parking lot and delivered her to an-

other officer who handcuffed her before transporting her to

the hall of corrections. Throughout these events Mrs. Mas-

ters repeatedly advised the officers that there was a mistake

Oe ca a

that she was not required to appear in court until October

23.

At the corrections building the plaintiff was required to

remove her shoes and empty her pockets and then was

“frisked” by a female attendant. While Mrs. Masters was

in a “holding room” a different female attendant ordered

her to open her blouse. This search occurred in front of a

window in the holding room, in plain view of other persons.

Approximately four hours after her arrest the plaintiff was

handcuffed to another woman and taken to a room on the

third floor of the Jefferson County jail. At that point, still

another female attendant subjected the plaintiff to a strip

search over her continued protestations of mistake. The

plaintiff was required “to remove all of her clothing except

her underpants and to turn around, drep her underpants,

bend over and expose her rectum.” After putting on a jail

dress, the plaintiff was lodged in a jail ce!! with other per-

sons. Later in the evening she was released on her own re-

cognizance and ordered to report to court at 9:00 a.m. the

next day. The following morning the presiding judge

acknowledged the recording error that led to the issuance

of the arrest warrant.

II.

In the U.S. District Court the plaintiff sought damages

under § 1983 for alleged constitutional violations and under

various state laws as pendent claims. She also requested a

declaratory judgment and a permanent injuction to prohibit

enforcement of the laws and policies under which she was

arrested, detained and searched. The defendants’ qualified

immunity defense was based on their contention that at the

time of the events complained of there was no “clearly

established law” holding any of the defendants’ acts uncon-

stitutional.

The district court recognized that public officials and

employees are immune from suits seeking damages under

5 1983 for acts performed under color of law unless it has

been clearly established that such acts deprive the plaintiff

of rights secured by the Constitution or laws of the United

States. Interpreting Supreme Court authority exonerating

an officer who executes an arrest warrant from making an

independent investigation of every claim of innocence, the

district court concluded that there is an implied duty to

make an investigation in some cases. The court held that,

in this case, because Mrs. Masters had documentary evi-

dence that the warrant had been issued by mistake, the offi-

cer had a duty to investigate and verify the validity of the

warrant.

The district court found that the strip search was con-

ducted pursuant to provisions of a consent decree pre-

viously entered by another division of the court in a class

action, Tate v. Frey, W. D. Ky. No. 75-00031-L(A). The

consent decree, entered as a “Stipulation for Settlement of

Class Action” on October 1, 1985, provided in paragraph

XXIII that the defendant Jefferson County authorities

agreed to establish policies addressing the search of in-

mates and inmates’ property. It then set forth guidelines

for those policies. The particular policy under which Mrs.

Masters was searched provides:

All inmates will be thoroughly searched each time an

inmate passes from one security area to another, being

prepared for transportation both between floors and

externally, and upon admission to the Department. All

newly admitted inmates to the Department will be

frisked searched upon arrival to the Department and

strip searched immediately prior to the movement of

the inmate to rear security, female section or other

areas of the Department.

The district court found that, in applying this policy, the

defendants are required to balance the interest of a de-

tainee in remaining free from the serious personal intrusion

inherent in a strip search against the interest of the author.

ities in maintaining security within the jail. Since Mrs.

eee ene

pemena

Masters was arrested and detained on minor traffic offenses

not normally associated with weapons or other contraband,

and no effort was made to determine whether any grounds

existed for believing her movement from one area of the

jail to another involved a security risk, the complaint stated

a claim for relief. Applying objective standards, the court

further found that the plaintiff’s right not to be subjected

to a strip search under the facts of this case was clearly

established. Thus, the district court denied the defendants’

claims of qualified immunity.

III.

In Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), the

Supreme Court held that “government officials performing

discretionary functions, generally are shielded from liabi-

lity for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” The

standard to be applied in deciding a claim of qualified

immunity is one of “objective reasonableness.” Id. The

Court reiterated both the rule and the standard in Davis v.

Scherer, 468 U.S. 183, 191 (1984), and added that “[n]o

other ‘circumstances’ are relevant to the issue of qualified

immunity.” Jd. Further refining the scope of inquiry to

be conducted by a court in deciding a claim of qualified im-

munity, the Supreme Court cautioned in Anderson v.

Creighton, — U.S. —, 107 S. Ct. 3084 (1987), against

identifying a clearly established rule of law at a level of

broad generality. Rather, the right allegedly violated must

have been clearly established in a “more particularized, and

hence more relevant, sense.” 1078S. Ct. at 3039. The Court

explained its “more particularized” requirement as follows:

The contours of the right must be sufficiently clear that

a reasonable official would understand that what he is

doing violates that right. This is not to say that an

official action is protected by qualified immunity unless

the very action in question has previously been unlaw-

ful, see Mitchell, 472 U.S., at 535, n. 12, 105 S.Ct., at

2820, n. 12; but it is to say that in the light of preexist-

ing law the unlawfulness must be apparent. See e.g.,

Malley, supra, 475 U.S., at 344-345, 106 S. Ct., at _-—;

Mitchell, supra, 472 U.S., at 528, 105 S.Ct., at 2816;

Davis, supra, 468 U.S., at 191, 195, 104 S.Ct., at 3017,

3019.

Id.

In describing the circumstances under which we will

hold that a constitutional right is clearly established, this

—eourt has formulated a rule which requires us to look first

to decisions of the Supreme Court, then to decisions of this

court and other courts within this circuit, and finally to

decisions of other circuits. Ohio Civil Service Employees

Ass'n v. Seiter, 858 F.2d 1171 (6th Cir. 1988) ; Robinson v.

Bibb, 840 F.2d 349 (6th Cir. 1988) ; Davis v. Holly, 835 F.2d

1175 (6th Cir. 1987).

On appeal the defendants rely squarely on Baker vy. Mc-

Collan, 443 U.S. 137 (1979), to negate the claim that the

plaintiff had a clearly established right not to be arrested

and detained without an independent investigation of her

claim of mistake. In Baker the Supreme Court held that

an officer making an arrest on the basis of a facially vaild

warrant is under no duty “to investigate independently

every claim of innocence.” Jd. at 145-46.

Agreeing with the district court, the plaintiff argues

that the reminder card setting her appearance in Jefferson

District Court for October 23 was documentary evidence

supporting her claim of mistake. This evidence, the plain-

tiff maintains, was sufficient to take her case outside the

general rule that such an investigation is not required in

every case. Because Mrs. Masters had supporting evidence

that the arrested plaintiff in Baker did not possess, the

officer was required to investigate and determine the true

facts.

The defendants approach the strip search issue differ-

ently. They argue that there was no clearly established

right for a pretrial detainee in the Jefferson County jail to

be free of a strip search before being moved from the hold-

ing area to a cell. On the contrary, they maintain, the con-

sent decree in Tate v. Frey authorized such searches and

this court, in Dobrowolskyj v. Jefferson County, 823 F.2d

955 (6th Cir. 1987), upheld the constitutionality of the

search policy. They contend that the Jefferson County

policy passes muster under the reasoning of Bell v. Wolfish,

441 U.S. 520 (1979), which upheld a policy of the New York

City Metropolitan Correctional Center that required body-

cavity searches of inmates following contact visits with per-

sons from outside the institution.

The plaintiff responds that Bell v. Wolfish prescribed

a balancing of the competing interests of the detainee and

the authorities, and held the particular search in that case

permissible because the need for the search outweighed the

plaintiff's right to be free of such intrusion. Bell v. Wol-

fish did not give carte blanche approval to a practice of

strip searching all pretrial detainees. In applying the

limitations imposed by the Supreme Court, the plaintiff

contends, no published opinion of any court has upheld the

constitutionality of a policy which permits routine strip

searches of persons arrested for minor offenses. Thus, she

argues, the right of a person in her position to be free of

such a search was clearly established, in the “particularized

sense” required by Creighton v. Anderson.

IV.

We believe the district court erred in coneluding that

clearly established law required the defendants to investi-

gate sufficiently to determine that the arrest warrant had

been mistakenly issued on the basis of an error by a judge.

The warrant named the plaintiff, who was the person

charged by the Jefferson County police and gave her correct

address. The warrant was valid on its face, and Barrows

did make a call to verify that it was still outstanding. The

“reminder card” did not bear Mrs. Masters’ name or any de-

scription of a charge, but merely showed that some pro-

ceedings would take place in Courtroom No. 102 at 9:00

a.m. on October 23, 1986. While this document certainly

strengthened her claim of mistake, it was not sufficient to

require further investigation. Since the error was made

by the judge who set the date, not by the person who issued

the warrant, it is unlikely that the mistake would have been

discovered by any investigation that did not include examin-

ing that particular judge’s daily records.

Of course, a more sensitive group of public employees

might have made the additional investigation, but the Con-

stitution did not require it. Baker v. McCollan is the con-

trolling case. There a man was arrested and held for sev-

eral days under a warrant that was valid on its face. The

warrant was intended for McCollan’s brother, however, and

McCollan was released when the mistake was discovered.

The brother had given the police McCollan’s driver’s license

when arrested. The Supreme Court-found that McCollan’s

claim was based on the alleged intentional failure of the

authorities to inyestigate his claim of innocence after he

was incarcerated. The decision states a rule, however, with

respect to the duty to investigate that applies to an arrest-

ing officer as well as to custodians following arrest. The

Court pointed out that the Constitution does not guarantee

that only the guilty will be arrested; police and correction

employees may rely on facially vaild arrest warrants even

in the face of vehement claims of innocence by reason of

mistaken identity or otherwise. 443 U.S. at 145,

The district court found an implication in the Supreme

Court’s statement that an arresting officer is not required to

conduct an independent investigation into every claim of in-

nocence, that in exceptional cases such as this one the Con-

stitution does require such an investigation. While the lan-

guage clearly supports an inplication fiat there may be

cases where such an investigation is required, it is not a

sufficient statement to satisfy the requirement that the right

relied upon must be “clearly established.” We have found

no case from the Supreme Court or this court holding an

arresting officer with a valid warrant, or a custodian, liable

in a § 1983 action for arresting and detaining the wrong

person for a brief time due to a mistake in identity. In

Coogan v. City of Wixom, 820 F.2d 170 (6th Cir. 1987), we

cited Baker vy. McCollan in holding that a person arrested

pursuant to a valid warrant had “no legal basis” for a

claim of a constitutional violation. Jd. at 174.

We vacate the order denying the defendants’ motion to

dismiss the claim related to the plaintiff’s arrest and deten-

tion pursuant to the facially vaild warrant. This claim will

be dismissed upon remand.

The strip search in this case consisted of two discrete

acts. First, Mrs. Masters was required to expose her breast

area, and later she was required to remove all her cloths and

undergo the further visual inspection previously described.

We consider the two incidents a single search, although

either would be treated as a strip search if it occurred alone.

We have found no authority approving a practice of

conducting a strip search of a person arrested for a simple

traffic violation in the absence of at least reasonable suspi-

cion that the person might be carrying a weapon, illegal

drugs, or other contraband. As the defendants have noted,

10a

the Supreme Court approved a policy of conducting strip

searches of pretrial detainees under certain circumstances

in Bell v. Wolfish, 441 U.S. 520 (1979). These searches

were conducted following every contact visit by a detainee

with a person from outside the institution. There is an

obvious risk that such a visit may be used to introduce con-

traband into a penal institution. While the Court emphasi-

zed the wide-ranging deference to be accorded the decisions

of correction officials with respect to institutional security, -

it clearly prescribes a test of reasonableness based upon a

balancing of competing interests:

The test of reasonableness under the Fourth Amend-

ment is not capable of precise definition or mechanical

application. In each case it requires a balancing of the

need for the particular search against the invasion of

personal rights that the search entails. Courts must

consider the scope of the particular intrusion, the man-

ner in which it is conducted, the justification for initiat-

ing it, and the place in which it is conducted.

Id. at 559.

As the court stated in Mary Beth G. v. City of Chicago,

723 F.2d 1263, 1272 (7th Cir. 1983), Bell v. Wolfish does

not validate a blanket policy of strip searching pretrial de-

tainees. Bell v. Wolfish authorizes particularized searches

where objective circumstances indicate such searches are

needed to maintain institutional security. The Mary Beth

G. court found that no such need existed for strip searches,

including visual inspection of the breast area and body cavi-

ties, of female detainees arrested for traffic offenses and

other nonviolent misdemeanors. The city’s inability to gat-

her evidence proving that female minor offenders in gen-

eral were security risks demonstrated that the only justifi-

cation for the policy was institutional convenience—a policy

of strip searchtng all female detainees is easier to admini-

ster than one which requires a balancing of interests in each

lla

case and an individual determination of need. Id. at 1272-

73.

In Mary Beth G. the court followed its earlier affirmance

of a district court decision. See Tinetti v. Wittke, 479 F.

Supp. 486 (E.D. Wis. 1979), aff’d, 620 F. 2d 160 (7th Cir.

1980). In Timetti a woman arrested for speeding was sub-

jected to a visual body cavity search pursuant to a policy

that all persons detained in a county jail be subjected to a

strip search, regardless of their offense. The district court

held that strip searches must be justified by a reasonable

belief that they will reveal weapons or instruments of

escape or evidence that could be concealed or destroyed.

Unlike detainees charged with criminal offenses, the court

found there is little reason to believe that persons arrested

for traffic violations will conceal weapons or contraband.

The policy was unconstitutional because it failed to require

any balancing of‘interests. The court of appeals adopted

the district court’s opinion. E

The defendants seek to justify the strip search with the

fact that Mrs. Masters was being moved from the holding

area to a cell on a different floor of the justice center.

Several cases have recognized imminent mingling with

other inmates as a consideration in the decision whether

to strip search a detainee. However, the fact of interming]-

ing alone has never been found to justify such a search with-

out consideration of the nature of the offense and the ques-

tion of whether there is any reasonable basis for concern

that the particular detainee will attempt to introduce wea-

pons or other contraband into the institution.

In Logan v. Shealy 660 F.2d 1007 (4th Cir. 1981), cert.

denied sub nom. Clements v. Logan, 455 U.S. 942 (1982),

the plaintiff was arrested for driving while intoxicated and

ordered to be held for four hours or until released to a

responsible person. She was taken to a holding area and

subjected to a visual strip search. In reversing a directed

verdict for the defendants the court of appeals found that

12a

the search was unrelated to any discernible security needs

and could not reasonably be thought justified when bal-

anced against the nature of the instrusion. The court listed

four factors that led to its conclusion: (1) the plaintiff

would not be intermingled with the general jail population;

(2) the offense, although not a minor traffic violation, was

not one usually associated with the possession of weapons

or contraband; (3) there was no cause to believe that this

particular detainee might possess either; and (4) when the

search was conducted the plaintiff had been at the deten-

tion center for one and one-half hours without even a pat

down.

The facts in Hill v. Bogans, 735 F. 2d 391 (10th Cir.

1984), are similar in many respects to those in the present

case. The plaintiff paid a fine for a traffic violation. When

he was stopped later for having an expired inspection

sticker the arresting officer was told by police headquarters

that there was an outstanding bench warrant for the plain-

tiff’s arrest. In fact, the warrant had been withdrawn by

the court. After being fingerprinted and patted down the

plaintiff was subjected to a visual strip search before be-

ing transferred “upstairs” to a prison area. The search

was conducted in an area where 10 or 12 people were mill-

ing about. The court of appeals held the search uncon-

stitutional upon balancing the interests of the parties, track-

ing the reasoning of Logan and Tinetti. It found that the

plaintiff’s intermingling with the general prison population

was the only “conceivable justification” for the strip search.

The court stated that “intermingling is only one factor to

consider in judging the constitutionality of a strip search.”

Id. at 394. Opposing this single factor were other factors

that led the court to find that no circumstances indicated

that the plaintiff might possess either a weapon or drugs.

Giles v. Ackerman, 746 F. 2d 614 (9th Cir. 1984), cert.

denied, 411 U.S. 1053 (1985), applied the prescribed bal-

ancing test and held unconstitutional a policy requiring all

Oe, MAR te De NE eR ene re Ea ae

13a

persons booked into a county jail to be strip searched. In

doing so the court declared that “arrestees for minor of-

fenses may be subjected to a strip search only if jail officials

have a reasonable suspicion that the particular arrestee is

carrying or concealing contraband or suffering from a com-

municable disease.” Jd. at 615. The court discounted the

defendants’ reliance on the fact that temporary detainees

were intermingled with the general jail-population as_justi-

fication for the search. It found that “such intermingling

is both limited and avoidable.” Id. at 619.

No decision of this court has specifically balanced the

rights of arrestees for minor offenses against a practice

of conducting strip searches. However, in upholding a

visual body cavity search in Dufrin v. Spreen, 712 F. 2d

1084 (6th Cir. 1983), we followed Bell v. Wolfish by balanc-

ing the competing interests. Factors supporting the search

were that the plaintiff was arrested for felonious assault, a

felony and “class of crime of which violence is an element,”

and that because of jail conditions the plaintiff “would ulti-

mately come into contact with the general jail population.”

Id. at 1087. The Dufrin court carefully distinguished Tin-

etti and Logan and other cases cited by the plaintiff on the

ground that “they have invariably involved misdemeanors,

traffic offenses, or similar minor offenses not normally as-

sociated with weapons or contraband.” Id. at 1088. Thus,

we indicated that a combination of circumstances justified

the search. Considering Dufrin along with decisions from

other circuits such as Hill v. Bogans and Giles v. Ackerman,

it was clearly established in October 1986 that authorities

may not strip search persons arrested for traffic violations

and nonviolent minor offenses solely because such persons

ultimately will intermingle with the general population at a

jail when there were no circumstances to support a reason-

able belief that the detainee will carry weapons or other

l4a

contraband into the jail. It is objectively reasonable to

conduct a strip search of one charged with a crime of vio-

lence before that person comes into contact with other

inmates. There is an obvious threat to institutional se-

curity. However, normally no such threat exists when the

detainee is charged with a traffic violation or other non-

violent minor offense.

The decisions of all the federal courts of appeals that

have considered the issue reached the same conclusion: a

strip search of a person arrested for a traffic violation or

other minor offense not normally associated with violence

and concerning whom there is no individualized reasonable

suspicion that the arrestee is carrying or concealing a wea-

pon or other contraband, is unreasonable. We believe the

right of such a person to be free of such a search was

“clearly established” on October 21, 1986. The single fact

that Mrs. Masters, for some reason, would come into con-

tact with other prisoners was not sufficient justification for

the search in this case. It did not outweigh the other fac-

tors negating any claim that such a search was reasonable

in this case.

’ Cc.

The defendants cite the consent decree in Tate v. Frey

and argue that Mrs. Masters is precluded by that decree

from challenging the strip search policy as it was applied

to her. Federal courts move very cautiously when asked to

give preclusive effect to consent decrees. As stated by

Professor Moore, consent judgments “should not be given

conclusive effect under the doctrine of collateral estoppel,

although they are res judicata as to the causes of action

adjudged; and may in some instances, by virtue of the par-

ties’ intent, be given conclusive effect as to the issues in-

volved.” 1B J. Moore, J. Lucas & T. Currier, Moore’s Fed-

eral Practice { 0.443[3] at 768 (2d ed. 1988). See Kaspar

Wire Works. Inc. v. Leco Engineering & Machine, Inc., 575

lia

F. 2d 530, 539 (5th Cir. 1978) (“Whatever type of repose

is sought to be invoked as a result of a judicial consent

decree, a court should take into account the fact that it was

rendered by consent and determine its impact by the issues

actually intended to be precluded by the parties.”).

The defendants’ reliance on the consent decree in Tate v.

Frey is misplaced. The consent decree dealt with numer-

ous issues related to conditions in the Jefferson County

jail, largely resulting from overcrowding. With respect

to searches the decree merely provides that the defendants

will establish policies “addressing the search of inmates and

inmate’s property.” The “guidelines” in the consent de-

cree provide for strip searches of all inmates “entering or

leaving the security perimeter,” all inmates coming into

direct contact with a visitor and all other inmates “upon

reasonable belief that the inmate may be in possession of

contraband.” The policy relied upon by the defendants for

Mrs. Masters’ strip search provides that newly admitted in-

mates will be strip searched immediately prior to the move-

ment of the inmate to the “rear security, female section.”

To hold that the consent decree prevents Mrs. Masters

from relying on the clearly established law relating to strip

searches of traffic violators and other nonviolent minor

offenders would be to accord the decree an unwarranted pre-

clusive effect. There is no showing in the record before us

that any party in Tate v. Frey was being detained in the

Jefferson County jail for a traffic violation or similar non-

violent offense. Nor is there any showing that the issue of

the constitutionality of strip searches of such inmates was

litigated in Tate v. Frey. In Balbirer v. Austin, 790 F. 2d.

1524, 1528 (11th Cir. 1986), the court stated that “a con-

sent judgment cannot constitute collateral estoppel unless

the party pleading collateral estoppel proves from the

record of the prior case or through extrinsic evidence that

the parties intended the consent judgment to operate as a

final adjudication of a particular issue.” In holding that

16a

a consent decree has a preclusive effect only to the extent

that it constitutes an agreed adjudication of an issue on

the merits, the Balbirer court cited Spilman v. Harvey, 656

I’, 2d 224 (6th Cir. 1981), along with cases from the Su-

preme Court and other circuits. The record in this case

provides no basis for the defendants’ claim that Mrs. Mast-

ers is precluded from challenging the strip search.

The defendants seek to support their claim of preclusion

by relying on Dobrowolsky) v. Jefferson County, 823 F. 2d

955 (6th Cir. 1987). In Dobrowolskyj, we held that the strip

search policy was constitutional as applied to a Jefferson

County jail detainee who had been arrested and charged

with “menacing,” an offense normally associated with wea-

pons and other contraband. While we cited the consent

decree in Tate v. Frey as an indication of the reasonable-

ness of the search policy, we clearly did not give the decree

preclusive effect. Rather, we applied the balancing test of

Bell vy. Wolfish and concluded that the combination of fac-

tors, including the nature of the detainee’s offense and the

fact that he was about to be moved to a place where he

would come into contact with the general jail population

justified the search. We certainly did not give the consent

decree and strip search policy the interpretation and effect

claimed by the defendants here: that the intermingling of

Dobrowolskyj, alone, justified the strip search. We care-

fully distinguished Tinetti, Logan, Mary Beth G., Hull, and

other decisions concerning strip searches of persons charged

with traffic violations and other nonviolent minor offenses.

Id. at 957. We noted our decision in Dufrin and the fact

that we had distinguished Logan and Timetti in Dufrin. Id.

at 957-58. We stated our holding in Dobrowolsky) as fol- —

lows:

Applying the balancing test from Bell, we find that the -

security interests of the jail outweigh the privacy in- .

terests of the inmates in the circumstances of this case.

NOTA! AD AN lm

17a

Thus, Dobrowolskyj’s search was not unreasonable

and did not violate the fourth amendment.

823 F. 2d at 959 (emphasis added). Nothing in our opin-

ion, last of all the holding, supports the defendants’ claim

of preclusion. ;

Conclusion

It was clearly estabiished on October 21, 1986, that a

pretrial detainee has the right not to be searched unless

the reasonableness of such a search is established by “a

balancing of the need for the particular search against the

invasion of personal rights that the search entails.” Bell

v. Wolfish, 441 U.S. at 559 (emphasis added). It was

equally established that a person charged only with a traffic

violation or nonviolent minor offense may not be subjected

to a strip search unless there are reasonable grounds for

believing that the particular person might be carrying or

concealing weapons or other contraband. The strip search

of Mrs. Masters as set forth in the complaint failed the

standard of “objective reasonableness,” Harlow v. Fitz-

gerald, 457 U.S. at 818. Thus, the defandants are not en-

titled to prevail at this stage of the case on their claim of

qualified immunity. The district court correctly denied the

motion to dismiss insofar as it related to the Fourth Amend-

ment claim based on the, strip search.

VI.

The judgment of the district court is affirmed in part and

reversed in part, and the case is remanded for further pro-

ceedings.

18a

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

LOUISVILLE DIVISION

Civil Action No. C87-0450-L(J)

Karen B. Masters, - - - - - = - ~~ Plaintiff,

JEFFERSON County, Et Al, - - - - Defendants.

MEMORANDUM OPINION—Entered April 18, 1988

This matter is before the court on defendants’ Motion to

Dismiss and Plaintiff's Motien for Partial Summary Judg-

ment. This is a civil rights case arising under 42 U.S.C.

1983. Plaintiff also alleges claims arising under state law.

Jurisdiction exists under 28 U.S.C. 1331 and 1343. The

court will exercise pendent jurisdiction over the related

state law claims.

I. ALLEGED FACTS

The plaintiff, Karen B. Masters, (Masters) alleges the

following facts on which she bases her claim for relief. On

July 31, 1986, Masters received two traffic tickets for ex-

pired registration plates and failure to maintain insurance

for her automobile. On August 21, 1986, she appeared in

Jefferson County District Court and pled not guilty to the

charges. On September 25, 1986, she appeared before the

court and plead not guilty to the charge a second time.

Masters was assigned a third court date, October 23, 1986.

She was given a reminder card clearly indicating that she

was to return to court on this date. However, the presiding

Judge mistakenly recorded Masters’ third appearance date

in the controlling court record as October 16, 1986.

At, Pee a Span tin Ae hee Na SiS

Banh silane Manat eet te 2 dBlai

19a

On the afternoon of October 21, 1986, while at her home

with her children, Jefferson County Police Officer Joseph

Barrows arrested Masters for failure to appear in Court

on October 16, 1986. Plaintiff protested her arrest and

showed Barrows the reminder card confirming the October

23, 1986, court date. Because of her protest Birrows con-

firmed the existence of the warrant under wLich he was

acting. No effort was made to confirm the validity of the

reminder card upon which plaintiff relied.

Barrows then took Masters via squad car to a public

parking lot where she was transferred to the custody of

Officer Roger Calhoun. Despite her protest Calhoun re-

strained Masters by securing her hands behind her back

with handcuffs. Through this chain of events Masters

repeated her claim that her arrest was a mistake.

Plaintiff was taken to the Hall of Justice and turned

over to the Metropolitan Department of Corrections (Cor-

rections). Again she protested that her arrest was a mis-

take, and showed the reminder card to Officer Teresa Banks

to support her claim. Officer Banks then conducted a frisk

search of Masters, and placed her in a “holding room” with

other women. After a period of time, one of the female

defendant Corrections employees entered the room, asked

the other women to leave and required plaintiff to open her

blouse. The procedure was performed in front of a window

in the holding room in plain view of other persons.

Four hours after her arrest, plaintiff was removed from

the holding room, handcuffed, and taken to the third floor

of the Jefferson County Jail across the street from the Hall

of Justice. There, Officer Vicki Wimbs conducted a strip

search of plaintiff. Masters was then given prison dress

and blankets and placed in the general population area of

the jail. Later that evening, she was removed from the

cell area, allowed to dress in her own clothes, and released

on her own recognizance with instructions to return to the

court the next morning. Once in Court the Judge ack-

20a

nowledged the recording error that had caused the warrants

to be issued for her arrest.

Plaintiff claims defendants’ failure to undertake mini-

mal investigative action as to her claim of mistake consti-

7 tutes gross negligence, and there was no independent pur-

pose served by or justification for plaintiff’s strip search

and incarceration. It is further alleged that defendants’

conduct deprived Masters of her constitutional rights se-

cured by the fourth, fifth, eight, ninth, and fourteenth

amendments without due process of law.

Based on the same factual allegations Masters also

claims she is entitled to relief wHder the following state law

causes of action; assault and battery, false imprisonment,

intentional infliction of emotion distress, negligence and

gross negligence.

Il. MOTION TO DISMISS

Defendants’ move the court to dismiss this action pur-

suant to Fed. R. Civ. P. 12(b) (6) for failure to state a claim

upon which relief can be granted and the qualified immunity

of the individual defendants.

In considering a motion to dismiss under Fed. R. Civ. P.

12(b)(6) we must examine the sufficiency of the pleadings.

All of the allegations of the pleading are to be construed

in the light most favorable to the pleader and accepted as

true. Jenkins v. McKeithen, 395 U.S. 411, 89 S. Ct. 1848

(1969); L’Orange v. Medical Protective Co., 394 F. 2d 57

(6th Cir. 1968).

The first issue is whether Masters has stated a claim

against the defendants for failure to investigate her claims

of innocence prior to her arrest and after she was incar-

cerated. There are two elements which must be present

in order to maintain an action under Section 1983. First,

the actions of the defedants must have been committed

under color of state law. Second, the actions must have

21a

deprived the plaintiff of a right or rights secured by the

Constitution or laws of the United States. Adickes v. 8. 1.

Kress & Co., 398 U.S. 144 (1970); Parratt v. Taylor, 451

U.S. 527 (1981). Defendants contend Masters suffered no

deprivation of any constitutional right.

In Baker v. McCollan, 443 U.S. 137, 99 S. Ct. 2689 (1979),

the Supreme Court held, “Given the requirements that ar-

rest be made only on probable cause and that one detained

be accorded a speedy trial, we do not think a sheriff execut-

ing an arrest warrant is required by the Constitution to

investigate independently every claim of innocence, . . .”

The facts in Baker involved a case of mistaken identity.

McCollan’s brother obtained a duplicate of his driver’s li-

cense except the picture on the license had been changed to

that of the brother. The brother was arrested on narcotics

charges and booked in McCollan’s name based on the al-

tered license. Later an arrest warrant was issued in Me-

Collan’s name. When McCollan was stopped for running

a red light, a routine check by the police officer revealed

the warrant. Over McCollan’s protest he was arrested and

incarcerated until the mistake was revealed.

Here defendants contend the holding in Baker relieves

the police and correctional oflicers of any duty to investigate

the claims of innocence. Baker plainly states that there is

no duty to investigate in every case. Therefore, by im-

plication the Court has stated in some cases a duty to in-

vestigate an arrestee’s claim of innocence may arise. The

facts surrounding Masters’ urrest and of the one in Baker

are distinguishable. Masters had documentary evidence

which, although not conclusive, strongly supported her claim

of innocence. No such documentation was offered by Me-

Collan in Baker. Therefore, Masters has stated a claim

against the police and correctional officers which may arise

to a deprivation of constitutional rights.

Defendants contend Masters’ claim that it was unconsti-

tutional to strip search her must be dismissed for failure

to state a claim. Upon Masters being processed into the

corrections facility she was properly classified as a “female

pretrial detainee”, therefore, she was a class member bound

by the Consent Decree entered in Tate v. Frey, et al., U.S.

District Court for the Western District of Kentucky at

Louisville, No. 75-00031-L(A). Defendants’ policy regard-

ing the movement and search of those over which it exer-

cises custody was determined to meet constitutional stand-

ards by a division of this court upon approval of the Con-

sent Decree. The relevant part of the policy states:

All inmates will be thoroughly searched each time an

inmate passes from one security area to another, be-

ing prepared for transportation both between floors

and externally, and upon admission to the Department.

All newly admitted inmates to the Department will be

frisked searched upon arrival to the Department and

strip searched immediately prior to the movement of

the inmate to rear security, female section or other

areas of the Department.

In Dobrowolskyj v. Jefferson County, Ky., 823 F. 2d 955

(6th Cir. 1987), the Sixth Cireuit Court of Appeals held

the strip search of a pre-trial detainee pursuant to the Con-

sent Decree in Tate v. Frey, supra, was constitutional.

There, as in this case, a pre-trial detainee was being held

in the holding area of the jail, but due to over crowded

conditions jail officials transferred him to the general pop-

ulation area of the jail. The Court applied the balancing

test established in Bell v. Wolfish, 441 U.S. 520, 99 S. Ct.

1861 (1979), which upheld the constitutionality of a search

policy. The Court in Bell, supra, held;

The fourth amendment requires a balancing of the need

for the particular search against the invasion of per-

<onal rights that the search entails. Courts must con-

sider the scope of the intrusion, the manner in which

23a

it is conducted, the justification for initiating it, and

the place in which it is conducted.

Id. at 559, 99 S. Ct. at 1184.

Applying the balancing test in Dobrowolskyj, supra, the

Court considered the nature of the offense of the arrestee

and need to maintain security within the facility. There,

the arrestee was being held on a charge of menacing, a

misdemeanor associated with the infliction of physical in-

jury on another, therefore, the Court found that the cor-

rection officials’ interest in maintaining security outweighed

the privacy interest of the arrestee. The Court disting-

uished its holding from those cases which held strip search

policies unconstitutional because they included persons

detained on minor traffic offenses and other misdemeanors

not formally associated with weapons or other contraband.

In other words, there was adequate justification for initiat-

ing the search,

-Although the corrections officials have a strong and valid

interest in maintaining security, this case differs from

Dobrowolskyj, supra, because Masters was detained on a

minor traffic offense. Therefore, plaintiff's complaint raises

an issue as to whether certain constitutional rights were

infringed upon by subjecting a detainee to a strip search

without consideration for the rature of the charge.

The next issue is whether the individual defendants are

entitled to the defense of qualified immunity. In Harlow

v. Fitzgerald, 457 U.S, 800, 102 S. Ct. 2727 (1982), the Su-

preme Court established when government officials may

rely on the doctrine of qualified immunity to insulate them-

selves from civil liability. The Court held, “. . . govern-

ment officials performing discretionary functions generally

are shielded from liability for civil damages insofar as

their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would

have known.” 457 U.S. at 819, 102 S. Ct at 2738, “If the

24a

law was clearly established, the immunity defense ordi-

narily should fail, since a reasonably competent official

should know the law governing his conduct.” Id.

In a recent holding, Anderson v. Creighton, 483 U.S.

—, 107 8. Ct. —, 97 L. Ed. 2d 523 (1987), the Supreme

Court issued guidelines as to what constitutes clearly estab-

lished laws in terms of qualified immunity. The facts in

Anderson, supra, involved an F.B.1. agent who conducted |

a forcible, warrantless search of a home in the mistaken

belief that a bank robbery suspect might be found there.

The homeowners filed suit claiming the agent violated their

rights under the Fourth Amendment. The Court held

qualified immunity defense isolated the agent from civil

liability under the applicable facts.

Underlying the qualified immunity defense are two con-

flicting policy considerations. First, an action for damages

may offer the only realistic avenue for vindication of consti-

tutional guarantees when governmental officials abuse their

offices. On the other hand, such actions can entail substan-

tial social costs, including the risk that fear of personal

liability will inhibit officials from the discharge of their

duties. Anderson, 97 L. Ed. 2d at 529. The purpose of

qualified immunity is for government officials to reasonably

anticipate when their conduct may give rise to liability for

damages. Therefore, the right allegedly violated by the

official must be clearly established. It is insufficient for

plaintiff to avoid the defense by merely pleading an offi-

cial’s action violated a right guaranteed by the Constitution.

“The contours of the right must be sufficiently clear that

a reasonable official would understand that what he is doing

violates that right.” Anderson, 97 L. Ed. 2d at 531.

The Anderson Court resolved the issue by answering

the following question. “Whether a reasonable officer could

have believed Anderson’s warrantless search to be lawful,

in light of clearly established law and the information the

searching officers possessed. Anderson’s subjective beliefs

25a

about the search are irrelevant.” Anderson, 97 L. Ed. 2d

at 532. Applying the test to this case we must first consider

the individual police and corrections officers could have

believed Masters’ arrest and incarceration to be lawful, in

light of Baker v. McCollan,-443 U.S. 137 (1979), and the

information (the card verifying her court date) the officers

possessed. In Baker, supra, by implication the Court has

stated in some cases a duty to investigate an arrestee’s

claim of innocence may arise. The fact Masters repeatedly

showed the defendants documentation of her innocence

should have made a reasonable officer aware that some in-

vestigation into the plaintiffs claims of innocence was war-

ranted. The qualified immunity defense is not available

to the individual police and corrections officers as it relates

to the claims for failure to investigate.

We must also consider whether the individual correc-

tions officers could have believed subjecting Masters’ to a

strip search was lawful, in light of Dobrowolskyj v. Jeffer-

son County, Ky., 823 F. 2d 955 (6th Cir. 1987), and the

information the officers possessed. The holding in Dobro-

wolskyj, supra, makes clear that officers should consider

the nature of the offense allegedly committed by the de-

tainee prior to subjecting them to a strip search. Further-

more, the corrections officers are charged with knowing on

what charge a detainee is being held. In light of Dobro-

wolskyj, supra, and the fact that Masters was charged with

a minor traffic offense, the qualified immunity defense is

not available to claim that her strip search was unconsti-

tutional.

The final issue is whether Masters has stated a claim

against Jefferson County and its agencies, the Jefferson

County Police Department and the Metropolitan Depart-

ment of Corrections. Governmental entities can only be

liable for policies, customs, or procedures which deprive

persons of their constitutional rights and governmental de-

fendants may not be held liable under any theory of re-

26a

spondeat superior. Monell v. New York Department of

Social Services, 436 U.S. 658, 98 S. Ct. 2018 (1978). Plain-

tiff's Amended Complaint has stated a claim against the

defendant Jefferson County and its agencies, the Jefferson

County Police Department and the Metropolitan Depart-

ment of Corrections.

Ill. MOTION FOR PARTIAL SUMMARY JUDGMENT

The plaintiff moves the court to enter a partial sum-

mary judgment deelaring the internal strip search policy

of the Metropolitan Department of Corrections unconsti-

tutional. The Motion is premature as there are disputed

issues of material fact. The Motion for Partial Summary

Judgment is denied.

IV. CONCLUSION

In accordance with reasons stated above the defendants’

Motion to Dismiss is denied. The plaintiff’s Motion for Par-

tial Summary Judgment is also denied.

An appropriate Order shall accompany this Memoran-

dum Opinion.

Dated 4-14-88

(s) Edward H. Johnstone

Edward H. Johnstone, Chief Judge

United States District Court

CR res

27a

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

LOUISVILLE DIVISION

Civil Action No. C87-0450-L(J)

Karen B. Masters, - - -, - - - £=Plawmtff,

Jerrerson County, Et Al, - -.- - Defendants.

ORDER—Entered April 18, 1988

For the reasons stated in the Memorandum Opinion this

date entered, IT IS ORDERED;

1. Defendants Motion to Dismiss is DENIED.

2. Plaintiff’s Motion for Partial Summary Judgment is

DENIED.

Dated 4-14-88

(s) Edward H. Johnstone

Edward H. Johnstone, Chief Judge

United States District Court

28a

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 88-5477

Karen B, Masters, - - - - Plaintiff-Appellee,

Vv.

Bossy G. Crovcn, etal, - - Defendants-Appellants.

JUDGMENT—Filed April 18, 1989

Before: Merritr and Mrirsvrn, Circuit Judges; and

LiveLy, Senior Circuit Judge.

On Appgau from the United States District Court for

the Western District of Kentucky.

Tuis Cause came on to be heard on the record from the

said district court and was argued by counsel.

On ConsIpERATION WueEREOF, It is now here ordered and

adjudged by this court that the judgment of the said dis-

trict court in this case be and the same is hereby affirmed

in part and reversed in part, and the case is remanded for

further proceedings.

Each party is to bear its own costs on appeal.

Entered by Order of the Court

Leonard Green, Clerk

(s) Leonard Green

Clerk

by apse

29a

No. 88-5477

‘UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Karen Masters, - - - - - Plaintiff-Appellee,

JEFFERSON County, et al, -~— - - Defendants,

Bossy Crovcn, et al. -~— - Defondants-Apodilouts.

ORDER—Filed July 14, 1989

Berore: Merritt and Mitsvry, Circuit Judges; and Livezy,

Senior Circuit Judge

The Court having received a petition for rehearing en

bane, and the petition having been circulated not only to

the original panel members but also to all other active

judges of this Court, and no judge of this Court having

requested a vote on the suggestion for rehearing en banc,

the petition for rehearing has been referred to the original

hearing panel.

The panel has further reviewed the petition for rehear-

ing and concludes that the issues raised in the petition were

fully considered upon the original submission and decision

of the case. Accordingly, the petition is denied.

Entered by Order of the Court

(s) Leonard Green

Leonard Green, Clerk

30a

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

Civil Action No. 87-0450-L-J

Karen B. Masters

5002 Axtell Avenue n

Louisville, Kentucky 40258, - - - - Plaintiff

Vv.

JEFFERSON CoUNTY

Serve: County Attorney Mike Conliffe

527 W. Jefferson Street

Louisville, Kentucky 40202

JEFFERSON County Po.ice DEPARTMENT

Serve: Chief Bobby G. Crouch

600 W. Jefferson Street

Louisville, Kentucky 40202

Bossy G. Croven, in his official capacity as

Chief of the Jefferson County Police De-

partment, 600 W. Jefferson Street, Louis-

ville, Kentucky 40202

JosePH Barrows and Rocer CaLnovun, individ-

ually and in their official capacities as offi-

cers of the Jefferson County Police Depart-

ment, 600 W. Jefferson Street, Louisville,

Kentucky 40202

METROPOLITAN DEPARTMENT OF CORRECTIONS

Serve: Chief Richard A. Frey, Jr.

600 W. Jefferson Street

Louisville, Kentucky 40202

Ricnarp A. Frey, Jr., in his official capacity

as Chief of the Metropolitan Department of

Corrections, 600 W. Jefferson Street, Louis-

ville, Kentucky 40202

;

aii

ST a

3la

Ser. Wituiam P. Rose, Jr., and Orricers

Teresa Banks, Larry Nassar and Vicki

Wiss, individually and in their official ca-

pacities as officers and employees of the

Metropolitan Department of Corrections,

600 West Jefferson Street, Louisville, Ken-

tucky 40202 - - - - - - - Defendants

FIRST AMENDED COMPLAINT—October 23, 1986

I. Introduction

1. Karen B. Masters, Plaintiff, files this action com-

plaining of the egregious and unjustifiable conduct of the

Defendants named in the caption above. As more specifi-

cally set forth below, Plaintiff, a law-abiding citizen with

no prior offense record or history of misconduct, received

tickets for two minor traffic offenses and then, after a mere

recording error in Jefferson District Court, was unlawfully

and unjustifiably arrested, strip-searched and imprisoned

by Defendants. It is the purpose of this action to recover

the actual damages Plaintiff sustained as a result of De-

fendants’ conduct, as well as any punitive damages to which

she is entitled, and to insure that no citizen of Jefferson

County is ever again victimized by the blatant, malicious

and repeated violations of constitutional and common law

rights that were endured by Plaintiff.

Il. Jurisdiction and Venue

2. Plaintiff seeks damages from Defendants under the

Civil Rights Act of 1871, 42 U.S.C. § 1983, for gross and

unconscionable violations of the rights, privileges and im-

munities guaranteed her by the Fourth, Fifth, Eighth,

Ninth and Fourteenth Amendments to the Constitution of

the United States. Accordingly, this Court has jurisdic-

tion of this case’ pursuant to the provisions of 28 U.S.C.

32a

§ 1331 and 13438. Plaintiff also seeks declaratory and in-

junctive relief, as well as damages under the pendent juris-

diction of this Court for false arrest, false imprisonment,

negligence, gross negligence, intentional infliction of

emotional distress, and assault and battery. As Louisville,

Kentucky is the residence of all parties to this action and

the location of all acts pertinent to this suit, venue is pro-

per in this Court.

Ill. Parties

3. DPlaintiff is a resident of Louisville, Jefferson Coun-

ty, Kentucky.

4. Defendant Jefferson County, at all times mentioned

herein, employed, was responsible for the establishment of

policies either formally or by custom for, and was responsi-

ble for the employment, training, supervision and conduct

of, the officers and employees of the Jefferson County

Police Department and the Metropolitan Department of

Corrections.

). Defendant Jefferson County Police Department, at

all times mentioned herein, employed, was responsible for

the establishment of policies either formally or by custom

for, and was responsible for the employment, training,

supervision and conduct of, the officers and employees of

the Jefferson County Police Department.

6. Defendant Bobby G. Crouch is and was, at all times

mentioned herein, Chief of the Jefferson County Police De-

partment, and as such established policies either formally

or by custom for, and was responsible for the employment,

training, supervision and conduct of, the officers and em-

ployees of the Jefferson County Police Department.

7. Defendants Joseph Barrows and Roger Calhoun are

and were, at all times mentioned herein, officers of the Jef-

ferson County Police Department.

8. Defendant Metropolitan Department of Corrections,

at all times mentioned herein, employed, was responsible

for the establishment of policies either formally or by cus-

33a

tom for, and was responsible for the employment, training,

supervision and conduct of, the officers and employees of

the Metropolitan Department of Corrections.

9. Defendant Richard-A. Frey, Jr. is and was, at all

times mentioned herein, Chief of the Metropolitan Depart-

ment of Corrections, and as such established policies either

formally or by custom for, and was responsible for the

employment, training, supervision and conduct of, the offi-

cers and employees of the Metropolitan Department of

Corrections.

10. Defendants Sgt. William P. Rose, Jr., and Officers

Teresa Banks, Larry Najjar and Vicki Wimbs, are and

were, at all times mentioned herein, officers and employees

of the Metropolitan Department of Corrections. In addi-

tion, Sgt. Rose and Officer Najjar were supervisors on duty

during Plaintiff’s incarceration and search, and as such,

were responsible for the supervision and conduct of Officers

Bank and Wimbhs.

IV. Nature of Defendants’ Conduct

11. Defendants, individually and in conspiracy with

one another, engaged in the conduct described below under

color of the law of the Commonwealth of Kentucky and Jef-

ferson County. The individual defendants named above

participated or knowingly acquiesced in, contributed to, en-

couraged, implicitly authorized or approved of the conduct

described below individually and in their official capacities

with the state or county agency by whom they were em-

ployed. The events described below resulted from the fail-

ure of the state and county agencies and the supervisory

officials named above to employ qualified persons for posi-

tions of authority, and/or to properly or conscientiously

train and supervise the conduct of such persons after their

employment, and/or to promulgate appropriate operating

policies and procedures either formally or by custom to

protect the constitutional rights of the citizens of Jefferson

34a

County, including Plaintiff. Defendants’ conduct was in-

tentional or grossly negligent, indicated active malice to-

ward Plaintiff or a total and reckless disregard for and in-

difference to her constitutional and common law rights, and

justifies-an award of punitive damages in addition to the

actual damages which Plaintiff is entitled to recover.

V. Facts

12. OnJuly 31, 1986, Plaintiff received two traffic tick-

ets for expired registration plates and for failing to main-

tain insurance on her automobile. Her citation directed her

to appear before the Jefferson District Court at the South-

west Government Center at 7219 Dixie Highway, Louisville,

Kentucky, on August 21, 1986 at 7:00 p.m.

15. On August 21, 1986, Plaintiff appeared in Jefferson

District Court at the Southwest Government Center at the

appointed time, and pled not guilty to the traffic violations

described in the citation. A Second court date was set for

September 25, 1986, at which time Plaintiff again appeared

and pled not guilty. Plaintiff was then told to appear be-

fore the Jeffer.on District Court, Division 102, on October

23, 1986, and she was given a reminder card by the Deputy

Sheriff in attendance confirming the date (See Exhibit A).

However, the presiding Judge recorded Plaintiff’s third——

appearance date in the controlling court records as October

16. Plaintiff was not aware, and had no reason to expect,

that her third appearance date was actually set for October

16, not October 23. Instead, Plaintiff reasonably relied up-

on the representations of District Court personnel — as

well as the reminder card she had received — and planned

to report to Jefferson District Court, Division 102, on

October 23.

14. On the afternoon of October 21, 1986, Plaintiff was

home alone with her children — Allison (6 years) and Scott

(8 years) —and one of their friends. At approximately

3:00 p.m., Officer Joseph Barrows of the Jefferson County

3da

Police Department appeared at Plaintiff’s door and placed

her under arrest for her alleged failure to make an October

16 court appearance. Plaintiff immediately protested her

arrest and presented to Officer Barrows the card she had

received at her second appearance, which instructed her to

appear for her next and only court date on October 23. In

response, Officer Barrow only confirmed with unknown

persons the existenee of the warrants pursuant to which

Plaintiff had been placed under arrest. Plaintiff then re-

quested an opportunity to contact her attorney, which was

summarily denied by Officer Barrows. Because there was

no one else at her home to care of her children, Plaintiff and

her children were taken to the home of Plaintiff’s mother

in Officer Barrows’ squad car where Plaintiff left her child-

ren. Plaintiff was then taken by Officer Barrows to the

public parking lot of a K-Mart on Dixie Highway where

she was transferred to the custody of Officer Roger Cal-

houn and placed in another squad car. However, before

being placed in the squad ear, Officer Calhoun placed Plain-

tiff’s hands behind her back and handeuffed her in public.

Despite Plaintiff’s protests, the handcuffs were applied by

Officer Calhoun with such foree that Plaintiff’s hands be-

came numb and welts appeared after the handcuffs were

later removed. Throughout these events, Plaintiff repeat-

edly advised the officers that her arrest was a mistake and

showed them her court date reminder card (which proved

the truth of her statements), to no avail. Plaintiff was then

taken by Officer Calhoun directly to the Metropolitan De-

partment of Corrections in the Hall of Justice, despite the

fact thats (a) the warrants for Plaintiff's arrest specified

that Plaintiff was to be arrested and taken to Jefferson

District Court; (b) the Jefferson District Courts are also

located in the Hall of Justice and were or should have been

in session at the time of Plaintiff's arrival at the Metropol-

itan Department of Corrections; and (¢c) Plaintiff continued

to protest that her arrest was a mistake.

36a

15. After Plaintiff arrived at the Hall of Justice, she

was turned over to the Defendant Metropolitan Depart-

‘ment of Corrections, in whose custody she would remain

until her release. Again Plaintiff protested that her arrest

was a mistake, and specifically showed to Officer Teresa

Banks the card that proved that her statements were true.

Again, Plaintiff was ignored. Plaintiff was required to

remove her shoes and empty ber pockets. She was then

required to “spread eagle’ against a wall where, in view

of other persons, she was frisked by Officer Banks. Plain-

tiff was then placed in a “holding room” with several other

women. After a period of time, one of the Defendant fe-

male Corrections employees entered the room, asked the

other women to leave and required Plaintiff to open her

blouse. This procedure was performed in front of a win-

dow in the holding room in plain view of other persons.

Plaintiff was then fingerprinted and photographed, after

which she was returned to the holding room.

16. At approximately 7:30 p.m., over four hours after

her ordeal had begun, Plaintiff and another woman were

handeuffed together and taken to the third floor of the

Jefferson County jail across the street from the Hall of

Justice. There, Plaintiff was placed in the custody of

Officer Vicki’ Wimbs who took her through an office into

an adjoining room, and closed the door. At that point,

Plaintiff was subjected, without explanation or justification,

to the humiliation and embarrassment of a strip-search: she

was ordered by Officer Wimbs to remove all of her clothing

except her underpant~ and to turn around, drop her un-

derpants, bend over and expose her rectum. After her

strip-search, Plaintiff was given prison dress and blankets

and taken to a jail cell in which she was incarcerated with

persons who were held under suspicion of committing of-

fenses far graver than her own,

17. Sometime later than evening, Plaintiff? was taken

from ber jail cell back to a dressing room where she was

37a

permitted to dress in her own clothes, was returned her

personal belongings and, without explanation, was released

on her own recognizance with instructions that she report

to court at 9:00 a.m. the next morning.

18. When Plaintiff appeared in court the next morn-

ing, the presiding Judge acknowledged the recording error

that had led to the issuance of the warrants for her arrest.

The Judge set a new court date of November 12, 1986, at

which time Plaintiff appeared before the Court and her

traffic tickets were resolved. ~~

a= &

VI. Causes of Action

a. Count 1

19. Paragraphs 1-19 above are incorporated herein by

reference and made this paragraph 20.

20. Under the facts and circumstances described above,

Plaintiff's arrest, strip-search and incarceration with Jef-

ferson County’s general jail population were unconscion-

able. First, Plaintiff should never have been arrested.

She repeatedly protested to Defendants that her arrest was

a mistake and, most importantly, provided Defendants with

documentary evidence (her court date reminder card) that

proved her claims. For the same reason, Plaintiff should

never have had to endure the terrifying and degrading ex-

perience of a strip-search and incarceration with those

elements of society that compose the general population

of the Jefferson County jail. Under these circumstances,

the failure of Defendants to undertake the minimal action

required to investigate Plaintiffs claims of mistake shocks

the conscious and, in the very least, constitutes gross negli-

gence. Moreover, there was no independent purpose served

by or justification for Plaintiff's «trip-search and ineareer-

ation. The minor nature of Plaintiff's traffic offenses, the

controversy surrounding her arrest, and her clean record

deprived Defendants of any cause or reason to believe that

38a _

any contraband, dangerous materials, incriminating ob-

jects or weapons were or would be hidden on Plaintiff's

person or in her clothing, or that Plaintiff presented any

threat to society at large. Her strip-search and incarcera-

tion were therefore wholly unjustified and inexcusable.

Defendants’ conduct throughout Plaintiff's ordeal was in-

tentional, wanton and malicious, and was indicative of

their total and reckless disregard of and indifference to

Plaintiff's rights and the risk of harm to Plaintiff and

others occasioned by such conduct.

21. Plaintiff believes and, after reasonable discovery,

would show that her treatment, described above, was part

of a pattern of past misconduct and was the result of

statutes, ordinances, regulations, policies, procedures, cus-

toms and usages of the Commonwealth of Kentucky and

Jefferson County, either written or unwritten, that are

systematically applied whenever a person fails to appear

before Jefferson District Court for whatever reason, how-

ever innocent. Such practices constitute an arbitrary use

of government power, and evince a total, intentional and

unreasonable disregard for the constitutional and common

law rights of the citizens of Jefferson County, including

Plaintiff, and the wholesale violations of those rights likely

to result from the systematic pursuit of such practices.

22. Asa result of the foregoing, Plaintiff, through De-

fendants’ intentional or grossly negligent conduct, was de-

prived without due process of law of the following rights,

privileges and immunities guaranteed to her by the Con-

stitution of the United States in Violation of the Civil

Rights Act of 1871, 42 U.S.C. $1983:

a) Her right to be secure in her person against unrea-

-onable searches and seizures under the fourth and

fourteenth amendments;

39a

b) Her right to privacy in her person against unrea-

sonable intrusions under the fourth, fifth, ninth and

fourteenth amendments;

c) Her right not to be deprived of life, liberty or prop-

erty without due process of law as well as her right

to equal protection of the laws secured by the four-

teenth amendment; and

d) Her right not to be subjected to cruel and unusual

punishment under the eighth and fourteenth amend-

ments.

b. Count 2

23. Paragraphs 1-23 above are incorporated herein by

reference and made this paragraph 24.

24. By virtue of the foregoing, Defendants assaulted

and battered Plaintiff.

ce. Count 3

25. Paragraphs 1-25 above are incorporated herein by

reference and made this paragraph 26.

26. By virtue of the foregoing, Defendants falsely ar-

rested and falsely imprisoned Plaintiff.

d. Count 4

27. Paragraphs 1-27 above are incorporated herein by

reference and made this paragraph 28.

28. By virtue of the foregoing, Defendants intention-

ally and unjustifiably inflicted upon Plaintiff severe mental

and emotional distress.

e. Count 5

29. Paragraphs 1-29 above are incorporated herein by

reference and made this paragraph 30.

0. By virtue of the foregoing, Defendants were negli-

gent and grossly negligent, all to the damage of Plaintiff.

40a

VII. Damages

31. Paragraphs 1-31 above are incorporated herein by

reference and made this paragraph 32.

32. Plaintiff was unjustifiably and unconstitutionally

arrested in front of her children and neighbors, handcuffed

in public, treated like a common criminal, frisked, strip-

searched, and incarcerated with Jefferson County’s gen-

eral jail population, all of which generated tremendous and

overwhelming embarrassment, humiliation, and mental and

emotional distress. As a result, Plaintiff has suffered, and

is entitled to recover, actual damages in an amount in ex-

cess of the sum of $200,000.00. Furthermore, Defendants’

violations of Plaintiff’s constitutional and common law

rights were cruel, malicious, and evinced a total and reck-

less disregard for those rights, entitling Plaintiff to re-

cover punitive damages in an amount not less than three

(3) times the actual damages she is found to have sustained.

VIII. Declaratory Judgment and Permanent Injunction

33. Paragraphs 1-33 above are incorporated herein by

reference and made this paragraph 34.

34. In addition to the foregoing, Plaintiff requests that

this Court issue a declaratory judgment deeming uncon-

stitutional any and all statutes, ordinances, regulations,

policies, procedures, customs or usages under which she

was arrested, searched and incarcerated, and further re-

quests that this Court permanently enjoin Defendants from

following or enforcing such statutes, ordinances, regula-

tions, policies, procedures, customs or usages.

Wuereror:, Plaintiff requests a trial by jury, and fur-

ther requests that she be awarded the actual and punitive

damages to which she is entitled, that she be granted the

declaratory and injunctive relief she has requested, and

the she be awarded her costs, attorneys’ fees and all other

relief to which she is entitled under law or in equity.

| li,

4la

(s) Gregory A. Bolzle

Gregory A. Bolzle

Woodward, Hobson & Fulton

2500 First National Tower

Louisville, Kentucky 40202

(502) 585-3321

Counsel for Plaintiff

Karen B. Masters

CERTIFICATE OF SERVICE “

It is hereby certified that a copy of the foregoing was

mailed on this the 20th day of October, 1987 to:

Mr. N. Scott Lilly

First Assistant County Attorney

1001 Fiscal Court Building

Louisville, Kentucky 40202

Counsel for Defendants

Mr. R. Allen MeVartney

Mr. Stuart L. Adams, Jr.

621 West Main Street

Louisville, Kentucky 40202

Assistant County Attorneys

aw ee

So voi ag

43a

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

Civil Action No. C-87-0450-L(J)

Karen B. Mastexs, - - - - - ~- ~~ Plaintiff,

JEFFERSON County, Et Al, - - - - Defendants.

DEFENDANTS’ ANSWER TO PLAINTIFF’S FIRST

AMENDED COMPLAINT—October 29, 1987

Come the Defendants, by counsel, and for their Answer

to the Plaintiff's First Amended Complaint, state as

follows:

1. The Defendants reaffirm, reiterate and reassert here

each and every defense set forth in the First through Fifth

Defenses of the Defendants’ August 17, 1987, Answer to the

Plaintiff’s original Complaint.

2. Defendants admit Paragraph 7 of Plaintiff’s First

Amended Complaint.

3. The Defendants deny the allegations contained in

Paragraphs 1, 2, 11, 20, 21, 22, 24, 26, 28, 30 and 32 of Plain-

tiff’s First Amended Complaint.

4. Defendants are without sufficient information or

belief with which to form an opinion as the truth or aceu-

racy of the allegations contained in Paragraphs 3 and 18

of Plaintiff's First Amended Complaint and therefore deny

same.

5. Defendants admit so much of Paragraph 4 alleging

Jefferson County is ultimately responsible for the policies,

44a

employment and supervision of the Jefferson County Police

Department and the Metropolitan Department of Correc-

tions, but affirmatively assert that certain aspects of the

employment, training, supervision and conduct of the offic-

ers and employees of such departments are governed by

state law.

6. Except as limited and qualified by the Defendants’

Answer to Paragraph 4 of the Plaintiff’s First Amended

Complaint, the Defendants admit so much of Paragraph 5

of Plaintiff’s First Amended Complaint which alleges the

Jefferson County Police Department has supervisory and

some training responsibilities over its officers and employ-

ees, including the establishment of a Standard Operating

Procedure manual, but denies the remainder of the allega-

tions of Paragraph 5.

7. The Defendants admit so much of Paragraph 6 of

Plaintiff’s First Amended Complaint which alleges the De-

fendant Crouch is Chief of the Jefferson County Police De-

partment and that he has overall supervisory responsibility

of the Jefferson County Police Department except as other-

wise limited and qualified by the answers herein to Para-

graphs 4 and 5 of the Plaintiff’s First Amended Complaint.

8. Except as limited and qualified by the Defendants’

Answer to Paragraph 4 of Plaintiff’s First Amended Com-

plaint, the Refendants admit so much of Paragraph 8 of

Plaintiff’s First Amended Complaint which alleges the Met-

ropolitan Department of Corrections has supervisory and

some training responsibilities over its officers and employ-

ees, including the establishment of a Policies and Procedure

Manual, but deny the remainder of the allegations of Para-

graph 8. Defendants also affirmatively assert that certain

policies, including those relating to strip-searches are also

governed by the Consent Decree entered in the case of Tate

v. Frey, U.S. District Court for the Western District of

Kentucky, No. 75-0031-(A) (October 1, 1985), which Con-

sent Decree is binding on the instant Plaintiff.

eS A a ee A li Mle e

i NA eee

45a

9. The Defendants admit so much of Paragraph 9 of

Plaintiff’s First Amended Complaint which alleges the De-

fendant Richard A. Frey, Jr. is the Director of the Metro-

politan Department of Corrections and that he has overall

supervisory responsibility of the Metropolitan Department

of Corrections except as otherwise limited and qualified by

the answers herein to Paragraph 4 and 5 of the Plaintiff’s

First Amended Complaint.

10. The Defendants admit the first sentence of Para-

graph 10 of Plaintiff’s First Amended Complaint, but inso-

far as the second sentence of Paragraph 10 attempts to

impose liability on the basis of respondeat superior, the

Defendants deny Defendants Rose and Najjar are respons-

ible under such theory for the specific acts and conduct of

any Corrections employee.

11. While these Defendants are not in possession of

any facts contrary to those set forth in Paragraphs 12 and

13 of Plaintiff's First Amended Complaint, they are with-

out sufficient information or belief to verify the truth or

accuracy of the allegations contained therein and therefore

deny same.

12. The Defendants admit so much of Paragraph 14 of

Plaintiff’s First Amended Complaint alleging that Plain-

tiff was arrested on a bench warrant by the Defendant Bar-

rows at approximately 3:00 to 3:30 P.M. on October 21,

1986; that the Defendant Barrow confirmed the validity of

such bench warrant prior to leaving Plaintiff’s residence;

that. Plaintiff protested her arrest in same fashion; that

Plaintiff’s children were taken to Plaintiff’s mother’s house;

and that Plaintiff was transferred to the custody of Officer

Calhoun at a Dixie Highway location. Defendants deny

Officer Calhoun improperly handcuffed the Plaintiff. De-

fendants also assert the bench warrant was properly ex-

ecuted according to law.

13. The Defendants admit so much of Paragraph 15

that when Plaintiff was placed into the custody of the De-

46a

partment of Corrections, she was required to remove her

shoes and empty her pockets; was subjected to a “pat

down” search by a female Corrections employee; was placed

in a holding area for females, was required by a female

Corrections employee to open her blouse, was fingerprinted

and photographed before being returned to the holding

area. The Defendants specifically deny the Plaintiff was

required to open her blouse in front of a window or in the

plain view of other persons. As to the remainder of the

allegations contained in Paragraph 15, these Defendants

are without sufficient information or belief to form an

opinion as to their truth or accuracy and therefore deny

same.

14 Defendants admit so much of Paragraph 16 that the

Plaintiff was moved from the female holding area to a jail

cell and prior to being placed in a cell, she was strip-seare-

ed by a female Corrections employee in a totally private

room. As to the remainder of the allegations contained in

Paragraph 16, these Defendants are without sufficient in-

formation or belief with which to form an opinion as to

their truth or accuracy and therefore deny same.

15 The Defendants admit so much of Paragraph 17 of

Plaintiff's First Amended Complaint which alleges the

Plaintiff was released on her own recognizance and return-

ed her personal property, but are without sufficient infor-

mation or belief as to the truth or accuracy of the remainder

of the allegations contained in Paragraph 17 and therefore

deny same.

16 As the allegations contained in Paragraph 19, 23,

25, 27, 29, 31 and 33 of Plaintiff’s First Amended Complaint

merely incorporate previous allegations of said Complaint,

Defendants reiterate and reaffirm each and every answer

set forth herein to the pertinent paragraphs of Plaintiff’s

First Amendéd Complaint.

17. As Paragraph 34 of Plaintiff’s First Amended

Complaint seeks relief in the form of a declaratory judg-

47a

ment and a permanent injunction and constitutes demands

for legal remedies rather than factual allegations, these

Defendants state Plaintiff is not entitled to such relief or

remedy.

18. Any allegation of Pliantiff’s First Amended Com-

plaint not specifically admitted or otherwise answered here-

in, is hereby denied.

WHEREFORE, the Defendants demand as follows:

A. Plaintiff's First Amended Complaint be dismissed

with prejudice at Plaintiff’s cost;

B.A trial by jury on all issues so triable ;

C. The Defendants be awarded their cost herein ex-

pended, including a reasonable fee for their attorneys pur-

suant to 42 USC § 1988; and

D. For any and all further relief to which these De-

fendants may appear to be entitled.

Respectfully submitted,

(s) N. Seott Lilly

N. Seott Lilly

First Assistant County Attorney

1001 Fiscal Court Building

Louisville, Kentucky 40202

(502) 625-6336

Stuart L. Adams, Jr. |

R. Allen McCartney

621 West Main Street

Louisville, Kentucky 40202

(502) 587-7711

Co-Counsel for Defendants

48a

CERTIFICATE

I hereby certify that a copy of the foregoing Answer to

Plaintiff’s First Amended Complaint was mailed, postage

prepaid, this 29th day of October, 1987, to Gregory A.

Bolzle and B. Todd Thompson, Woodward, Hobson & Ful-

ton, 2500 First National Tower, Louisville, Kentucky 40202-

3175, Counsel for Plaintiff.

(s) N. Seott Lilly

N. Scott Lilly

an Ra a

49a

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

Civil Action No.: C75-0031-L(A)

C79-0492-L(A)-24

C79-0570-L(A) -34

Don Tarr, et al. Pat - Plaintiffs

Ricnarp Frey, et al. : : . - Defendants

ORDER CERTIFYING CLASS—Entered August 15, 1980

Motion having been made, and the Court otherwise

being sufficiently advised;

Ir Is Heresy Orperep anp Apsupcep, that the Plaintiff

class be and hereby is certified and divided into four sub-

classes defined as follows:

a. The first subclass, represented by JacqueLine Hunrt-

ER, is composed of all female prisoners who are now

or will be confined in the Jefferson Couuty Jail and

are awaiting trial, and not serving sentence for any

misdemeanor or felony conviction. This subclass

shall be known as the “female pretrial detainee” sub-

class. at

hb. The seeond subclass, represented by Diane Bo ty,

is composed of all female prisoners who are now or

will be incarcerated in the Jefferson County Jail for

the purpose of serving sentence for a misdemeanor

or felony conviction and shall be known_as the “con-

victed female” subclass.

50a

The third subclass, representea by Ervin Tyvs, is

composed of all male prisoners who are now or will

be confined in the Jefferson County Jail and are

awaiting trial and not serving sentence for any mis-

demeanor or felony conviction. This subclass shall

be known as the ‘male pretrial detainee” subclass.

The fourth subclass, represented by Husert Rrixco

is composed of all male prisoners who are or will be

incarcerated in the Jefferson County Jail for the

purpose of serving sentence for a misdemeanor or

felony conviction and shall be known as the “con-

victed male” subclass.

The Plaintiff class shall consist of the four above-de-

Date

~ fined subclasses.

(s) Charles M. Allen

Honorable Charles M. Allen

United States District Court Judge

8-15-80

Hla

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

Civil Action Numbers: C-75-0031-L(A)

C-83-0254-L(A)

Don Tarte, et al., — - . . - - - Plaintiff's

Ricuarp Frey, et al. . . - - - Defendants

STIPULATION FOR SETTLEMENT OF

-CLASS ACTION—October 1, 1985

PREAMBLE

The above-entitled action was brought by plaintiff Don

Tate on behalf of himself and all other persons similarly

situated, and evolved into a class action Proceeding under

Rule 23(b)(2) of the Federal Rules of Civil Procedure,

and consolidated with similar actions pursuant to the

court’s direction.

Plaintiffs complaint herein, as amended and supple-

mented, charged in substance that inmates of the Jeffer-

son County Corrections Department were being incarcer-

ated under conditions which violated the First, Fourth,

Sixth, Kighth, Ninth and Fourteenth Amendments to the

United States Constitution, in violation of Section 1983

and 1985 of Title 42 of the United States Code, and in

violation of State law. That as a result of such inearcera-

tion plaintiff and other members of the class were damaged.

dZa

In this action, plaintiffs request both injunctive and

declaratory relief. Plaintiffs also pray for reimbursement

of their costs and expenses and for the allowance of rea-

sonable counsel fees to their attorneys for prosecuting

this action.

The named defendants have appeared and answered and

have denied the material allegations of the plaintiff's com-

plaint, as amended and supplemented.

A consolidation of actions was ordered by the court on

April 14, 1980 for actions C-75-0031-L(A), C-79-0492-L(A),

and C-79-0570-L(A); action C-83-0254-L(A) was consoli-

dated on August 1, 1983.

The court, by order dated August 15, 1980, determined

that this action is properly maintainable as a class action

under the provisions of Rules 23(a) and 23(b) (2) of the

Federal Rules of Civil Procedure, and that plaintiffs were

proper representatives of the class.

In order to bring to rest the controversy between plain-

tiffs and the class represented by plaintiffs, and defendants ;

to secure total and final settlement of all claims against

defendants arising out of the purported acts and omissions

set forth in plaintiffs’ complaint, as amended and supple-

mented; and to avoid further expense, inconvenience, and

the distraction and hazard of burdensome and protracted

litigation; the parties desire to settle, compromise, and

terminate this action and all claims asserted therein, as

well as any and all other claims against the defendants

which are based upon or might be based upon or arise from

any of the matters alleged in plaintiffs’ complaint, as

amended and supplemented, regardless of the legal theory

on which such claims may be based.

STIPULATIONS

I. Population and Tousing

The main holding cell shall contain a maximum of

twenty (20) inmates at any one time providing, however,

Pee at

d3a

that no inmate shall be held in the main holding cell longer

than a total of twelve (12) hours (Appendix page 1, area

B-218). Pretrial interviews shall be conducted by a quali-

fied pretrial services staff. All interviews will be held

when the individual is in holding and shall not be delayed.

Since it is necessary to continue pretrial interviews in the

main holding cell area, the holding cell shall contain a maxi-

mum of twenty (20) inmates (Appendix page 1, area

B-218).

The intoxication cell shall contain a maximum of six (6)

inmates at any one time, and no inmate shall stay in the

intoxication cell for a longer period than twelve (12) hours.

The intoxication cell shall contain a toilet, sink and drink-

ing fountain (Appendix Page 1, area 217).

The three (3) smaller holding cells shall contain a maxi-

mum of three (3) persons each at any one time. No inmate

shall be housed in any of the three (3) smaller holding cells

for longer than a total of twelve (12) hours. All holding

cells shall contain a toilet, sink and drinking fountain (Ap-

pendix page 1, areas B-214, B-215 and B-216).

Area H-1 shall contain a maximum of nine (9) persons

at any one time (Appendix page 2, area B-168). Area H-2

shall contain a maximum of fifteen (15) persons at any one

time (Appendix, page 3, area B-185). Area H-3 shall con-

tain a maximum of fifteen (15) persons at any one time

(Appendix, page 3, area B-200). If, for any reason, an

inmate is kept longer than the twenty-four (24) hour maxi-

mum period in holding cells H-1, H-2 or H-3, he or she shall

be provided with a bed and at least sixty (60) square feet

of floor space per inmate.

Subsequent to his/her appearance in arraignment court,

all inmates still incarcerated shall be classified, allowed to

shower and be provided with a clean jumpsuit. Each in-

mate appearing in State Court in the presence of a jury

will be provided the opportunity to wear civilian clothing

provided at the inmate’s expense. All inmates appearing

54a

in Federal Court will be provided the opportunity to wear

civilian clothing provided at the inmate’s expense.”

There shall be no placement of inmates in corridors.

Areas M-1, M-2, M-3, and M-4 may be used as an assigned

housing unit for prisoners with special needs i.e., maximum

security, protective custody, Federal or state in transit.

Each cell shall hold one (1) person each. No person shall

remain in M-1, M-2, M-3, or M-4 longer than four (4) weeks

(Appendix, page 2, areas B-152, B-153, B-154, and B-155).

No person shall be detained in any holding area, or all

holding areas combined, for longer than twenty-four (24)

hours except areas M-1, M-2, M-3 and M-4. All other hous-

ing areas in the jail shall comply with the Commission on

Accreditation for Corrections Standards for Adult Local

Detention Facilities (hereinafter referred to as “CAC” or

“CAC Standards” 1981 Edition). Dayrooms shall not be

included in the computation for CAC Standards on square

footage per person.

Each living area shall have a dayroom or recreation

room. There shall be no beds, cots or any other sleeping

accommodations in any dayroom.

The four (4) walks on the third floor of the Louisville

Division of Police Headquarters building,*227 South Sev-

enth Street shall be provided with completely renovated

plumbing facilities including one shower for every fifteen

(15) prisoners. The population shall be reduced as follows :

one (1) cell on each of Walks one, two, and three; shall be

renovated as a shower area. The remaining cells shall hold

no more than four (4) inmates each (Appendix pages 4 and

5, areas 314, 319, and 320). Walk four (4) on the third

floor shall comply with CAC Standards for inmate housing

(Appendix page 6)

Nothwithstanding any of the above provisions, all in-

mate living areas in the jail shall comply with the CAC

Standards on density.

~ doa

II. Maximum Inmate Population

The maximum inmate population of the jail shall not

exceed the following specified categorical limits, nor shall

the aggregate limit of 989 inmates be exceeded without addi-

tional facilities which conform to the then existing nation-

ally recognized minimum requirements for similar facilities.

Population Dispersement Maximum Limits

Hall of Justice

Basement:

front holding 35

Rear holding 92

Fourth Floor 80

Fifth Floor:

Kast 50

West 110

Sixth Floor:

Kast D9

West 110

Louisville Division of Police

Walk one 28

Walk two 36

Walk three 36

Walk four 32

Community Corrections Center

First Floor 58

Second Floor 117

Third Floor 90

TOTAL 989

d6a

Population Dispersement Bed Classification

The maximum number of persons classified to a bed shall

not exceed 835, categorized as follows:

Basement 53

3rd Floor 132

5th Floor 160

6th Floor 165

Community Corrections Center 325

TOTAL 835

Population Dispersement Holding

Inmates not classified to a bed and detained less than

twenty four (24) hours shall not exceed 154, categorized

as follows:

Basement 74

4th Floor 80

“. TOTAL 154

Population Dispersement Non Confined Inmates

Population limitations of non-confined persons, who are

under the constructive custody of the Department shall not

be limited.

III. Population Limitations Maintenance

The maximum population limitation set forth in Section

II Maximum Inmate Population shall be maintained ac-

cording to the following plan.

The primary method whereby the jail shall maintain

the stated maximum inmate population shall be through

the informal communicative channels existing at present,

and those to be developed, between the Jefferson District

Court, the Jefferson Circuit Court, the Pretrial Release

Agency of its Administrative Office of the Courts, and

57a

through the Division Program of the Commonwealth’s

Attorney’s Office. Should the population exceed any speci-

fied category of the jail, reclassified attempts shall be en-

gaged to reallocate existing facility space to accommodate

the inmate population requirements.

IV. Classification

All classification interviews shall be held in a quiet,

private area. No more than one (1) interview will be con-

ducted at a time per interview room. All classification

interviews shall occur within twenty-four (24) hours of

arrival at the jail. Classification interviews and observa-

tions shall be no shorter than the time necessary to make

a complete and accurate determination of the individual’s

classification requirements. All classification personnel

shall receive periodic training related to recognizing

psychiatric problems. A psychiatrist or psychologist shall

review one out of each ten (10) classifications within

twenty-four (24) hours or the next working day of the

original classification as a reliability check. The second

review shall be done without the original classification per-

son’s knowledge of the results of the second interview. The

results of the classification review shall be used in periodic

reevaluation of the interview content and training program.

If the results upon review by the psychologist differ from

the first interview, the classification by the psychiatrist or

psychologist shall take precedence. The result of all re-

classification reviews shall be noted in the inmate’s record,

with the outcome stated. In addition, said qualified psy-

chiatrist or psychologist shall give periodic training to all

- interviewers,

There shall be a written policy and procedure for inmate

classification which shall be reviewed at least annually and

updated if necessary in accordance with CAC standards.

The goal of ‘the classification procedure shall be to ensure

58a

accuracy with a review toward removing low-risk inmates

from the jail’s population whenever possible.

V. Community Treatment Center and Alternatives to

Confinement

The Defendants recognize the American Correctional

Association’s philosophy that community residential pro-

grams are viable, productive and cost-effective alternatives

to confinement, and that such programs serve to reinforce

_and support the reintroduction of the offender to society.

Defendants, therefore, agree to maintain the Community

Corrections Center, and agree to exercise good faith efforts

to make maximum use of the center. Male and female in-

mates will be incarcerated at the Center. Defendants will

diligently investigate funding sources and additional pro-

grams similar to the Community Corrections Center which

would serve to reintroduce the offender to society.

VI. Educational and Vocational Programs

In accordance with CAC standards, a written policy and

procedure shall provide for educational programs and vo-

cational counseling and vocational programs. Study ma-

terials and classes shall be organized and staffed by trained

tutors for those inmates interested in obtaining a Gradu-

ate Equivalency Diploma (GED). Further, course material

and texts shall be made available to those prisoners inter-

ested in post-high school study. The jail will make every

effort to make and maintain appropriate community and

agency contacts, soliciting volunteer teachers and tutors in

all areas and at all levels of study.

A system shall be established to ensure that all educa-

tional and vocational programs meet the needs of the popu-

lation. An annual evaluation shall measure the effective-

ness of the educational and vocational training programs

against stated performance objectives.

59a

VII. Citizen Involvement And Volunteers

Defendants shall aggressively seek assistance from citi-

zens in the community to help coordinate and staff the vo-

cational, educational, library, recreation, religious, and

_ other programs. <A written policy and procedure shall be

promulgated in accordance with CAC standards.

VIII. Work Programs

Within the framework of the jail, defendant’s agree to

provide as much meaningful employment to the inmates as

possible to those desiring to work. All inmates shall be

eligible for employment except those disqualified by reason

of a disciplinary action or voluntary election not to work.

A decision not to work shall not be used against any pri-

soner for any reason, nor shall it prejudice an inmate for

future participation in work programs.

An inmate employment policy and procedure shall be

developed by the Defendants. No inmate shall be discrimi- |

nated against in the provision of a job by reason of race,

color, religion, sex, or national origin, who is otherwise

qualified.

Jobs shall be genuine; no more inmates shall be assigned

to tasks than necessary. Prisoners classified to work

assignments shall be compensated for work performed.

Equal opportunity shall be afforded to females and males

to apply for and hold all jobs.

IX. Food Service

Defendants shall comply with CAC standards on food

and nutrition. In addition, a nutritionist shall review the

menu at least monthly, and make unannounced checks at

least monthly to ensure that the food prepared conforms

to the menu. Meal content shall be altered to meet the re-

ligious needs of inmates so requesting. Daily calorie in-

take shall consist of no less than 2,400 calories and shall

be served hot or cold as the material requires. Medically

60a

necessary diets shall be reviewed by the staff physican and

provided as necessary. Food, except accessibility to com-

missary items, shall not be withheld as a disciplinary action.

X. Visitation

Defendants agree, as a minimum, to follow CAC stan-

dards on visitation. Additionally, each prisoner is entitled

to at least one fifteen-minute visit period each day, except

inmates assigned to disciplinary segregation.

Visitation shall take place in pleasant surroundings and

with appropriate surveillance to allow privacy. Confiden-

tial visits with attorneys shall be arranged. <A written sys-

tem of reservations shall be formulated for out-of-town

visitors who reside outside of a fifty (50) mile radius from

Louisville, Kentucky. Each inmate shall be permitted to

receive one (1) special visit each week of not less than one

(1) hour to be tabulated as one (1) regular visit. Pri-

soners shall be notified in writing of the existence and de-

tails of this reservation system. The rules of the reserva-

tion system shall be posted in the visitors’ waiting area.

Written rules will also be promulgated to permit visits to

hospitalized inmates.

Visits may be taken away or restricted as punishment

if the infraction involves violation of a department regula-

tion. No inmate shall be handcuffed while visiting except

for identifiable security reasons.

XI. Recreation And Exercise

Defendants shall establish a written policy providing

a comprehensive program of leisure time activities. Mov-

ies, clubs, hobbies, arts and crafts and study groups com-

parable with those available in the community will be made

available to those inmates housed in the Community Cor-

rections Center.

There shall be separate dayroom for each dormitory and >

cell block. All dayrooms shall be used exclusively for re-

6la

creation of the residents of the housing unit or cluster in

which the dayroom is located. Dayrooms shall not be used

for sleeping space. Each dayroom shall contain cards,

board games and other activities of sufficient quantity to

allow participation by all. Each and every dayroom shall

contain a working television.

The gymnasium shall be open seven (7) days each week

for physical exercise except for religious service on Sunday

morning. All elassified inmates who wish to participate

shall be permitted to attend gymnasium activities at least

five (5) hours per week. Defendants agree to maintain a

maximum of twenty (20) to twenty-four (24) inmates in the

gymnasium at any one time. Outdoor exercise, weather

permitting, shall be made available every day. A full-time

recreation officer shall formulate and supervise a diversi-

fied recreation program. Gymnasium scheduling should

not be curtailed or altered due to staffing shortages.

XII. Inmate Mail

Defendants shall follow the CAC standards for inmate

mail. In addition, mail shall be collected and delivered at

least every twenty-four (24) hours, excluding weekends and

holidays.

XIII. Telephones

Telephones shall be made available to all inmates except

where specific disciplinary infraction regarding telephone

use requires restrictions. Every person using the telephone

shall be provided with a reasonable amount of privacy.

There shall be no prohibitions in regard to calling the press

or any other person, except where a request by that party

prohibits such a call. The inmate’s file shal] include docu-

mentation of any and all such requests. Telephone privi-

leges shall be removed as punishment only when an inmate

substantially violates the privilege, i.e., threatening or

obscene phone calls. Written policy and procedures specify

62a

that newly admitted prisoners may complete at least two (2)

local or collect long distance telephone calls during the

admission process. Sufficient telephones will be made avail-

able so that waiting times are minimal.

XIV. Library Service

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.