Request By:
Mr. Bernard Coughlin Hargett
Mason County Attorney
Stanley F. Reed Court
Maysville, Kentucky 41056
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
On behalf of the jailer of Mason County, you pose the following question relating to arrested persons brought to the county jail by the arresting peace officer, not under a court order, but because of the necessity brought on by the fact that no magistrate is available to receive the person charged with crime, as is required by RCr 3.02:
"If a prisoner is brought to the jail to be lodged and is obviously in need of medical care, or is unconscious or semi-conscious at that time, does the jailer have to receive such a prisoner prior to the arresting officers or officer obtaining proper medical care or evaluation of said prisoner? "
The county jailer is required to "receive and keep in jail all persons who are lawfully committed thereto, until they are lawfully discharged." This includes accepting prisoners where so ordered in writing by the court of jurisdiction and where the arresting officer brings in a defendant late at night or on a holiday such that the defendant cannot immediately be taken before a magistrate [a judge of the circuit or a judge or trial commissioner of the district court] for at least the purpose of establishing bail in bailable offenses.
But in your situation, the obvious need for medical attention is made known to the arresting officer, and prior to any arrival at the county jail. Clearly, where the defendant has been properly placed in the custody of the jailer, the jailer has a responsibility to seek adequate medical attention in case of illness of the prisoner. See KRS 71.040; and 72 C.J.S., Prisons, § 11, p. 863. In addition, KRS 441.010, as amended in 1979 [Ex. Sess., H.B. 50, Ch. 21], makes specific provisions for the payment of necessary medical care of indigent prisoners. Implicit in that statute is the concept that the jailer is that instrument of government which must get the prisoner to proper medical authorities and facilities. But all of this does not reach the precise question you raise.
The residual question is whether the arresting officer must seek medical care for his prisoner prior to his turning the prisoner over to the county jailer.
RCr 3.02 requires the arresting officer to take the arrested person before a magistrate "without unnecessary delay." (Emphasis added). Implicit in this rule is the concept that the courts will countenance reasonable delays. A delay based merely upon the officer's lengthy interrogation of the defendant is not a reasonable or necessary delay.
United States v. Hensley (U.S.C.A. -6, 1967) 374 F.2d 341, 350. Proof that a magistrate is unavailable during the detention time and before the defendant is taken before a magistrate would support reasonableness of and necessity for the delay.
United States v. Frazier (U.S.C.A. -6, 1967) 385 F.2d 901, 904.
In
Little v. Commonwealth, Ky., 438 S.W.2d 527 (1969) 529, 530, the court, in addressing RCr 3.02(2), providing that "any person making an arrest without a warrant shall take the arrested person without delay before a magistrate," wrote that this must be done as promptly as is reasonably possible under the circumstances. A purpose of this rule, the court said, is to check resort by officers to secret interrogation of persons accused of crime.
The federal courts and various states have adopted the view that arresting officers are held to this standard in dealing with arrested persons, as stated in 6A C.J.S., Arrest, § 62, p. 140:
"Upon the arrest of a person for an offense, the police acquire direct responsibility for his care and safety, and police officers are not authorized to abuse or mistreat persons arrested. Where it reasonably appears necessary, medical treatment must be provided for a sick or injured arrestee." (Emphasis added).
The standard was described in
Cobb v. Jeansonne, La., 50 So.2d 100 (1951) 106:
"It is the duty of an arresting officer, regardless of the nature of the means employed to accomplish the arrest, and regardless of the nature of the offense for which the arrest is made, so long as the prisoner is in his custody or subject to his control, to see to it that reasonable medical service is provided to such person if and when his mental and/or physical condition discloses the need of such services."
The United States Sixth Circuit Court of Appeals took the position that implicit in this standard is the requirement that the arresting officer make arrangements for a complete physical examination when necessary to determine the necessity or lack of necessity for treatment of one involved in an automobile accident while traveling at high speeds. Dodge v. Johnson, (U.S.C.A. -6, 1973) 471 F.2d 1249, 1251.
As to the precise question of when an arresting officer's duty to provide medical attention arises, the court, in
Hamilton v. Chaffin, (U.S.C.A. -5, 1975) 506 F.2d 904, 912, held that "The jury was also correctly instructed that the defendants' [police officers'] duty to provide medical attention must be predicated upon the exercise of reasonable care in deciding whether a person under their control needs medical attention. "
It is our opinion that where the arresting officer, before he can bring the defendant before an available magistrate as required by RCr 3.02, realizes that the defendant requires medical care, he has the duty to seek out adequate medical attention and care for the defendant prior to placing him in jail to await the availability of a magistrate. Such time spent in procuring and receiving necessary medical care would constitute a reasonable and necessary delay under such circumstances. The arresting officer, under such situation, cannot shift his responsibility for the arrested person's health to the jailer by leaving the defendant with the jailer. See 5 Am.Jur.2d, Arrest, §§ 75-77, p.p. 761-764. The arresting officer is required to keep the defendant safely and treat him humanely [which latter requirement includes procurement of necessary medical attention] until such time as the defendant can be brought before an available magistrate.
Where the arresting officer is reasonably unaware (in the exercise of reasonable care) of any need for defendant's medical care and where there is no available magistrate late at night or on a holiday, then the arresting officer can place defendant with the jailer until the magistrate becomes available, at which time the arresting officer must take defendant out of jail and before the magistrate.