Request By:
Mr. Elmer Cunnagin, Jr.
Laurel County Attorney
London, Kentucky 40741
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter concerns bail bond procedure as relates to a county jailer. It reads:
"I have been requested by the Laurel County Jailer to obtain an opinion from you concerning the authority of the Laurel County Jailer to accept bonds from persons arrested for misdemeanor violations and placed in the Laurel County Jail.
"My specific question is does the Laurel County Jailer have authority to accept cash bonds from persons arrested for public intoxication, driving while intoxicated and other misdemeanor violations, pending their appearance in the Laurel District Court the following week?
"In addition if the Laurel County Jailer does have authority to accept cash bonds who makes the determination if the arrested person had sobered up to the point where he can be released on a cash bond.
"If the Jailer has authority to decide at what point the person should be released on a cash bond, is there liability on the Jailer's part if the person is released too soon."
In answer to Question No. 1, RCr 4.24 provides in part that when the amount of bail has been fixed either by the court or by the uniform schedule of bail, it may be taken by the clerk of the court in which defendant is held to appear. "Any other bonded public officer may be authorized by the Chief Judge of Circuit Court to take bail, but only if the clerk of the court is unavailable. " (Emphasis added). KRS 30A.060(3).
The jailer is a bonded public officer. KRS 71.010. However, under the above Criminal Rule he can take bail only if the clerk of the court is unavailable and he is authorized to take bail by the Chief Judge of the Circuit Court. If the jailer is authorized to take bail under RCr 4.24, he is required to accept cash bail in the prescribed amount or the deposit authorized by KRS 431.530 and release the defendant to appear in accordance with the conditions of the bail bond. See KRS 431.540. See also RC 4.20 and 4.22.
The second question is who makes the determination as to whether the defendant has sobered up to the point where he can be released on a cash bond.
It has been written that great discretion is vested in the circuit judge respecting bail.
Abraham v. Com., Ky.App., 565 S.W.2d 152 (1977) 158. Where the jailer is taking bond under direction of the court, pursuant to RCr 4.24, he is really an officer of the court and the court's discretion should be derivative to that extent.
RCr 4.04(2) and RCr 4.12 provide that where bail is afforded, nonfinancial conditions may be imposed. Such conditions of release may include, but are not limited to, placing the defendant in the custody of a designated person or organization agreeing to supervise him or to placing restrictions on his travel, association or place of abode during the period of release. In 8 Am.Jur.2d, Bail and Recognizance, § 9, page 589, it is written that "In the absence of a statute, it has been stated that a trial judge must deny bail if he feels that the release of the accused will endanger the safety of the community." (Emphasis added). Thus bail should not be granted if there is danger that the defendant, if given his freedom, will commit crime of like character.
Carbo v. United States, 7 L. Ed. 2d 769, 82 S. Ct. 662 (1962).
Thus, in answer to Question No. 1, where the defendant is believed to be in such a state of intoxication that he might get out on the road and repeat the crime of public intoxication or driving while drunk, the jailer, where he is authorized by the court to take bail pursuant to RCr 4.24, may exercise his sound discretion in refusing bail or granting bail but imposing any necessary conditions as described above under RCr 4.04(2) 4.12, and KRS 431.520, depending upon the facts and circumstances of each case. See 8 Am.Jur.2d, Bail and Recognizance, § 42, page 618.
Since the jailer would have a discretion in affording bail, pursuant to RCr 4.24 and related authorities, you ask about the jailer's liability where it is shown that the drunk defendant was released too soon. Injuries flowing from a premature release of a drunk person could involve third parties as well as the defendant himself.
The court has declared that the ordinary rule is that a public officer when acting in good faith within the scope of his authority is not personally liable for damages sustained by a member of the public as a result of his action, unless he acted negligently, i.e., failed to meet the standard of the ordinarily prudent man.
Spillman v. Beauchamp, Ky., 362 S.W.2d 33 (1962) 36. In that case the court added that, if under a particular set of facts liability would not exist under that rule, liability should not be imposed on the officer simply because the government cannot be made to pay. The old
Court of Appeals, in Moores v. Fayette County, Ky., 418 S.W.2d 412 (1967) 414, wrote that "The rule is that public officers are responsible only for their own misfeasance and negligence . . . ."
Thus where it is shown in a proper court action that the jailer, though properly exercising the affording of bail as described above, intentionally released a drunk defendant under such circumstances as to develop a case of negligence on the part of the jailer, such jailer would be liable in tort for such proven negligence.
We can find no statutory treatment of this question. In the case of negligently released prisoners by a parole board, in
Pate v. Alabama Board of Pardons & Paroles (1976, M.D. Ala) 409 F.Supp. 478, the board members in that case were charged, in an action brought under the Federal Civil Rights Act (42 U.S.C. § 1983) by the father of a girl allegedly raped and killed by a parolee, with misfeasance, nonfeasance, and malfeasance in the performance of their official duties. The court at the outset held that as to defendant, Alabama Board of Pardons and Paroles, such Board is immune from suit by virtue of the Eleventh Amendment to the Constitution of the United States and the doctrine of official immunity. The district court also ruled that the individual members of the Board of Pardons and Paroles were absolutely immune from suit for damages under 42 U.S.C. § 1983, the court saying that parole officials should be protected by the same absolute immunity afforded judges for acts resulting from the performance of their official duties. The court said that it is essential to the proper administration of criminal justice that those who determine whether an individual shall remain incarcerated or be set free should do so without concern over possible personal liability at law for such criminal acts as some parolee will inevitably commit.
The Supreme Court, in Imbler v. Pachtman, 424 U.S. 409, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976), held that a state prosecuting attorney who acted within the scope of his duties in initiating and pursuing a criminal prosecution is absolutely immune from a civil suit for damages for alleged deprivations of the defendant's constitutional rights under 42 U.S.C. § 1983. The court considered the analogy of the common law absolute immunity of judges for acts committed within their judicial jurisdiction. See
Pierson v. Ray, 386 U.S. 547, 18 L. Ed. 2d 288, 87 S. Ct. 1213 (1967). The court observed in a footnote that the immunity of a judge for acts within his jurisdiction has roots extending to the earliest days of the English common law. See Floyd v. Barker, 12 Coke 23, 77 Eng. Rep. 1305 (1608). The immunity doctrine for prosecutors, judges and grand jurors is based upon the public policy consideration that their exercise of independent judgment and official discretion should not be psychologically impeded by thoughts of civil liability. The court noted that the function of a prosecutor that most often invites a common law tort action is his decision to initiate a prosecution, as this may lead to a suit for malicious prosecution if the state's case misfires. In
Pierson v. Ray, 386 U.S. 547, above, Chief Justice Warren wrote, in referring to the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, that this immunity "is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences. " (Emphasis added).
As we said above, under the ordinary rule, a public officer when acting in good faith within the scope of his authority is not personally liable for damages sustained by a member of the public as a result of his action, unless he acted negligently, that is, failed to meet the standard of the ordinarily prudent man. Under that rule, the jailer must exercise sound judgment in affording bail to persons charged with intoxication or driving while drunk, such that he meets the "ordinarily prudent man" standard.
It is possible that our courts, when adequately presented with the analogy of the immunity of judges, in a proper case, might hold jailers immune, where the jailers are affording bail under direction of the courts. See RCr 4.24 and KRS 30A.060(3). In such role, the jailers are in reality officers of the court. Thus it could be effectively argued that the judicial immunity to tort should derivatively apply to jailers who are authorized to afford bail. See the annotations on this subject in 5 ALR 4th 773 and 12 ALR 4th 722.
CONCLUSIONS
(1) A jailer may be authorized to bail misdemeanants by the Chief Circuit Judge, where the clerk is unavailable. He may accept cash bail or the deposit authorized by KRS 431.530.
(2) A jailer, where authorized to afford bail, must use his sound judgment in releasing a person charged with intoxication or driving while drunk.
(3) A jailer might be subject to tort liability for damages suffered by a member of the public, where the prematurely released defendant injured some one.