Request By:
Mr. David H. Bland
Executive Director
Kentucky Jailers Association
Route #2, McCowans Ferry Road
Versailles, Kentucky 40383
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request a clarification concerning the jailer's admitting arrested persons to jail who are clearly in need of medical attention.
In OAG 79-455 we wrote that it was 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 arrested person requires medical care, such arresting officer 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. However, and notwithstanding the arresting officer's duty to seek out medical care for the arrested person, we pointed out in that opinion that clearly, where the defendant has been properly placed in the custody of the jailer (i.e. where the arresting officer brings in a prisoner late at night such that a magistrate is not available), the jailer has the responsibility to seek adequate medical care for the defendant. We in no way in that opinion substantively intended to express the view that the jailer could refuse to accept a late-at-night (no magistrate available) defendant on the ground that the arresting officer, where the defendant at that point clearly needs medical care, has first the responsibility to seek out medical care for the defendant. However, since factually the arresting officer did bring to the jail late at night a defendant requiring medical attention, we now understand why you thought the total result somewhat ambiguous. We hereby clarify that by repeating that where the defendant was properly brought to the jailer late at night, and no magistrate was available, it is our opinion that, regardless of the arresting officer's failure to first take the defendant to medical help, the jailer had the responsibility to seek medical care for the defendant.
The point is that in the absence of statute, the jailer cannot require the arresting officer to first take such defendant to medical help as a condition precedent to the jailer's admitting the defendant to the jail. The arresting officer has a legal responsibility in being required under law to take the defendant to medical help. However, the jailer has no way of enforcing that obligation by refusing to admit the defendant to the jail. The enforcement of the law as to the standard of conduct of the arresting officer, where medical attention is necessary, is a matter addressing itself to the superiors of a policeman or appropriate litigation.
Thus OAG 82-166 definitely cleared up this matter when we wrote that where the arrested person is ill or needs medical attention, the county jailer has no statutory basis for refusing to receive an arrested person late at night (no magistrate available) on the ground that he is ill or needs medical attention. Under KRS 71.040 the jailer is required to receive and keep in the county jail "all persons who are lawfully committed thereto." The mere fact that the defendant needs medical attention upon arrival at the jail in no way militates against the lawfulness of the commitment to the jailer. On the jailer's duties toward prisoners under KRS 71.040, i.e., his receiving and keeping in jail all persons lawfully committed until lawfully discharged, and treating them humanely and furnishing them with proper food and lodging during confinement, see Lamb v. Clark, 282 Ky. 167, 138 S.W.2d 350 (1940) 352; Bartlett v. Commonwealth, Ky., 418 S.W.2d 225 (1967) 228; and Sudderth v. White, Ky.App., 621 S.W.2d 33 (1981) 35. Ultimate liability of the jailer for failure to exercise proper and reasonable care of prisoners depends upon the particular circumstances of each case.
The rationale of Fitze v. Shappell, 468 F.2d 1072 (6th Cir. 1972) was described in Tate v. Kassulke, 409 F.Supp. 651 (1976) as being that where the circumstances are clearly sufficient to indicate the need of medical attention for injury or illness of a prisoner held under color of law, denial of such need constitutes a deprivation of constitutional due process. Under such circumstances such prisoners needing medical attention, but which was denied by the jailer, would be entitled to injunctive relief.
Thus, even where an arresting officer brings to the jailer a prisoner who claims he needs medical care, under the holding in Tate v. Kassulke, above, it must appear that the circumstances are clearly sufficient to indicate the need of medical attention. As was said in Sudderth v. White, Ky.App., 621 S.W.2d 33, above, the measuring of the jailer's responsibility in this so called illness or injury situation centers around the court's examining all of the circumstances under the evidence to determine whether or not the jailer acted with reasonable care.
We realize the problems which are created for the jailer by the present state of the law, and would recommend that jailers seek further clarification and possible change from the General Assembly.