Request By:
Col. Gerald T. Early
Chief of Police
Dayton Police Department
Dayton, Kentucky 41074
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The questions you raise concern a jailer's refusal to accept an arrested person into the jail, even though there is sufficient room for him.
Question No. 1:
"May a jailer or his deputy refuse admittance to the jail, a prisoner lawfully arrested under the provisions of KRS 202A. 040, when jail is not full to capacity and there is no hospital in the same county that will accept that prisoner (patient) if he is violent and/or a danger to himself."
KRS 71.040 provides in part:
"The jailer shall receive and keep in the jail all persons who are lawfully committed thereto, until they are lawfully discharged." (Emphasis added).
As we explained in OAG 81-148, copy enclosed, where a person is directed by a court of jurisdiction to be confined in the county jail, either to be detained awaiting trial or where sentenced, the county jailer, or his deputy, must receive him, until the prisoner is released by order of the court. Further, any peace officer who has reasonable grounds to believe that an individual is mentally ill and presents an immediate danger or an immediate threat of danger to self or others if not immediately restrained, shall detain that person without a warrant. KRS 202A.040. The peace officer must, as soon as practical, cause the person to be examined by a physician. See the statute for other details.
Thus where the peace officer detains a person in Campbell County pursuant to KRS 202A.040, as above described, and there is no hospital in the county that will accept the mentally ill person pending a hearing, then the local county jailer, or his deputy, must accept the mentally ill person, provided there is available space in the jail for him, subject to conditions hereinafter dealt with. See Briskman v. Central State Hospital, Ky., 264 S.W.2d 270 (1954).
The acceptance of a prisoner by the county jailer under KRS 71.040 is conditioned upon available space for the prisoner. However, the determination finally of whether the jail space is available and adequate, if that question arises, should be left to the local court of jurisdiction. If the jailer believes the space is not available and adequate, he should receive the prisoner lawfully committed, and then take the space problem to the court for final resolution. See KRS 441.030.
The various responsibilities of the jailer in dealing with prisoners under his custody are important in getting the concept of an "adequate and secure jail" into perspective.
It is written in 60 Am.Jur.2d, Penal and Correctional Institutions, § 17, page 821, that "The majority of courts hold that the jailer, whether he is the sheriff or some other officer, owes a duty to the prisoner to keep him safe and to protect him from any unnecessary harm, and that the jailer must exercise reasonable and ordinary care for the life and health of the prisoner. " KRS 71.040 specifically requires the jailer to treat prisoners "Humanely and furnish them with proper food and lodging during their confinement." (Emphasis added). The jailer must see that the prisoners get needed medical care. KRS 441.010. Crowded conditions in a jail may be such as might expose the jailer to an action based upon alleged cruel and unusual punishment. See 51 ALR3d 111. Also see the Eighth Amendment of the Federal Constitution; § 17 of the Kentucky Constitution; and Moss v. Warden, Ky., 352 S.W.2d 557 (1962) 558, in which case the Court of Appeals held that the constitutional prohibitions against cruel and unusual punishment are addressed to the exercise of criminal jurisdiction in the courts.
In any event, where the jailer has reason to believe the jail would not be adequate for purposes of administration or security of the prisoner, he should take it up with the court of jurisdiction. In 51 ALR3d 136, the writer points out that in determining whether particular prison conditions are cruel and unusual, the courts have adhered to the broad standards traditionally resorted to in cruel and unusual punishment cases generally. He writes, "Thus, in express or tacit application of the 'inherent cruelty' test mentioned in § 3[a], supra, a number of courts represented in the decisions treated hereinafter have focused their attention upon the question whether the prison condition complained of - usually considered without reference to surrounding circumstances - was so inherently severe as to transcend elemental 'concepts of decency', or 'shock the general conscience. . . . [and be] intolerable in fundemantal fairness.'" (Emphasis added).
Question No. 2:
"May a county jailer or his deputy refuse admittance to a county jail, a prisoner lawfully arrested under the provisions of KRS 202A.040 when the only hospital that will accept the prisoner is in another county.
"a. We are a Fourth Class City:
"1) How would our jurisdiction be affected upon leaving our county with that prisoner. "
If there is a hospital in some other county (other than Campbell) that will receive the prisoner, under the terms laid out in KRS 202A.040, the Campbell County jailer would not be required to receive the prisoner (unless ordered to by the local court of jurisdiction). The court of jurisdiction would not lose jurisdiction over the prisoner merely because he is detained in a jail in another county. See KRS 441.030.
Question No. 3:
"If a hospital in another county has no space to accept such a prisoner, is the county jailer required to admit him if there is available space in the jail. "
If no hospital is available, the Campbell County jailer must accept him under the conditions treated above. We doubt that the arresting officer is required to search all over Kentucky for an available hospital. His search for an available hospital in his county would be the limit of his requirement, although there is nothing to prevent the officer's making a search by telephone for an available hospital in another county.
Question No. 4:
"If a prisoner is suffering from injuries as a result of resisting arrest or from other causes and this prisoner refuses to accept medical treatment or is so violent that the hospital refuses to treat the prisoner, may the county jailer or his deputy refuse to admit such a prisoner. "
The answer is that regardless of the prisoner's physical and mental condition, the Campbell County jailer, or deputy, is required to accept him, if ordered by the court, or if the arresting officer brings him to the jailer under the conditions outlined in KRS 202A.040 (including the unavailability of a hospital).
Question No. 5:
If there is not facility, either medical or the county jail that will accept such a prisoner, and this subject is released by the officer to what extent could the officer, the department, or City be held liable for injuries or death resulting from actions of the released prisoner.
"Is the jail liable for refusing to admit such a prisoner and injury and/or death results from actions of that released prisoner. "
Under KRS 202A.040(1), any peace officer who has reasonable grounds to believe that an individual is mentally ill and presents an immediate threat of danger to self or others if not immediately restrained shall detain that person without a warrant. If the arresting officer reasonably determines that there is no available hospital in the county that will take him, and if the jailer, or deputy, refuses to accept him into the county jail, then the arresting officer must continue to detain the prisoner until he can procure an order from the court of jurisdiction directing the jailer to accept him. You cannot just turn him loose upon himself and society. The city government should discuss this emergency type of problem with the local courts. Under this situation, the question about the release of the prisoner is moot.