Request By:
Mr. Austin Weller
Nelson County Jailer
111 West Stephen Foster Avenue
Bardstown, Kentucky 40004
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You are presently the Nelson County jailer. You have an isolated cell primarily used to house female prisoners. That cell is also used to house persons brought to the jail on mental detention warrants, before they go to district court for the first appearance.
Question No. 1:
"Can I hold the person in jail longer than three days (excluding holidays and weekends) if a District Judge or Circuit Judge issues a court order extending their incarceration before their first appearance in court?"
Pursuant to KRS 71.020, as county jailer you have the custody of all prisoners lawfully entrusted to your custody. Thus where you receive in the jail prisoners lawfully committed thereto, you are required, under KRS 71.040, to keep such prisoners generally in your custody until they are lawfully discharged by the court of jurisdiction.
However, notwithstanding the provisions of KRS 71.040, the old Court of Appeals, in Garvin v. Muir, Ky., 306 S.W.2d 256 (1957) 258, ruled that a jailer has custody of the prisoner in the jail pursuant to KRS 71.020, and unless a jailer has legal authority in the form of a written mittimus or an order of a court, the jailer is liable for false imprisonment in holding a person in jail beyond a reasonable time for procuring such judicial authority. The fact that the jailer is without personal knowledge that the prisoner is held unlawfully does not constitute a complete defense to an action for false imprisonment. Such fact would show a lack of malice on the part of the jailer and minimize damages awardable. In fact, an illegal imprisonment must be treated as a wrong from its very inception, and it matters not on what date knowledge of such illegality is acquired. Whirl v. Kern, (U.S.C.A. -5, 1969) 407 F.2d 781, 791. See also 42 U.S.C. § 1983, of the Civil Rights Act, relating to any person who, under the color of a statute, custom or usage, of any state, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Federal Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
It would be up to the courts to determine in a particular case whether a jailer has held a prisoner "beyond a reasonable time" for procuring the necessary judicial authority to continue the detention.
Question No. 2:
"Nelson County Attorney, Challen P. McCoy, advised me that the person charged with KRS 202.027 (emergency detention for dangerous mental patient) already having had a hearing in court and the person requests a trial by jury, the court can then return the person to jail and require the jailer to hold the person for trial not to exceed 21 additional days."
We assume you are referring to what is now KRS 202A.041. KRS 202.027, a prototype, was repealed in 1976 (Ch. 332, § 33). KRS 202A.041 relates to the arrest of an individual who is mentally ill and presents a danger or threat of danger to self, family or others if not restrained. Let us also assume that the mentally ill individual in your stated factual situation has been taken before the court of jurisdiction and has been examined, without necessary delay, by two (2) qualified mental health professionals, at least one of whom is a physician. Let us assume that the qualified mental health professionals certified to the court within twenty-four (24) hours of the examination their findings and opinions as to whether the person should be involuntarily hospitalized, their opinion being that the person should be involuntarily hospitalized. Then the court would set a preliminary hearing within five (5) days from the date of arrest, excluding weekends and holidays (all such cases requires a warrant, otherwise the court must release such person), to determine if there is probable cause to believe the person should be involuntarily hospitalized. See KRS 202A.041(2).
Concerning the preliminary hearing, subsections (3) and (4) read:
"(3) Prior to the preliminary hearing, the court shall notify the respondent, his legal guardian, if any and if known, and his spouse, parent(s), or nearest known relative or friend concerning the involuntary hospitalization proceedings and the date and purpose of the preliminary hearing; and the name, address and telephone number of the attorney appointed to represent the respondent.
"(4) If upon completion of the preliminary hearing, the court finds there is probable cause to believe the person should be involuntarily hospitalized, the court shall order a final hearing within twenty-one (21) days from the date of the arrest to determine if the person should be involuntarily hospitalized for a period of sixty (60) days."
Under subsection (4) of the statute, and, if upon completion of the preliminary hearing, the court finds there is probable cause to believe the person should be involuntarily hospitalized, the court is required to order a final hearing within twenty-one (21) days from the date of arrest to determine if the person should be involuntarily hospitalized for a period of sixty (60) days. The point is that the final hearing must be held by the court within twenty-one (21) days from the date of the arrest, pursuant to the literal wording of subsection (4). Bailey v. Reeves, Ky., 662 S.W.2d 832 (1984). Further, the jailer, as we said earlier herein, must be scrupulously careful to maintain and retain custody of such a prisoner only under the written orders of the court. Garvin v. Muir, Ky., 306 S.W.2d 256 (1957) 258; and KRS 71.040. A written court order means that the order of the court is documented, should the jailer ever need it. The jailer cannot collaterally or otherwise question the orders of the court. City of Lexington v. Gentry, 116 Ky. 528, 76 S.W. 404 (1903).
KRS 202A.040, which was repealed by Acts 1982, required the arresting peace officer to have the person examined by a physician, as soon as practical. It further provided that if facilities are available and an authorized staff physician agrees, the person may be lodged in a hospital rather than a jail pending a court hearing. However, that statute was repealed and similar provisions were not inserted in KRS 202A.041. This leaves the clear impression that the alternative of lodging such a mentally ill person in a hospital pending a court hearing is not presently provided for.