488 F.2d 1378 (10th Cir. 1973), 73-1407, Reynolds v. McNichols

Docket Nº:73-1407.
Citation:488 F.2d 1378
Party Name:Roxanne REYNOLDS, Plaintiff-Appellant, v. William McNICHOLS, Mayor of the City and County of Denver, et al., Defendants-Appellees.
Case Date:December 13, 1973
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1378

488 F.2d 1378 (10th Cir. 1973)

Roxanne REYNOLDS, Plaintiff-Appellant,


William McNICHOLS, Mayor of the City and County of Denver, et al., Defendants-Appellees.

No. 73-1407.

United States Court of Appeals, Tenth Circuit.

December 13, 1973

Argued and Submitted Oct. 16, 1973.

Page 1379

John G. Bock, Englewood, Colo. (Peter H. Ney, Englewood, Colo., on the brief), for plaintiff-appellant.

Richard L. Dally, Denver, Colo. (Wesley H. Doan, Max P. Zall, Gerald Himelgrin, Marshall Fogel and J. Bayard Young, Denver, Colo., on the brief), for defendants-appellees.

Before LEWIS, Chief Judge, and JONES [*] and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

This is a civil rights case brought by one Roxanne Reynolds under 42 U.S.C.§§ 1983 and 1985 against the City and County of Denver, its Mayor, the Honorable William McNichols, and certain of the city's officials and policement. The gravamen of the complaint is that several of the constitutional rights of Roxanne Reynolds, hereinafter referred to as the plaintiff, were violated by the city

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and its officials in their enforcement of Denver's so-called "hold and treat" ordinance. This ordinance, among other things, purports to authorize under prescribed conditions the detention of one reasonably suspected of having a venereal disease, the examination of such person, and the treatment of such disease if it be determined that the person thus detained and examined does in fact have a venereal disease. The ordinance in question, Section 735 of the Revised Municipal Code of the City and County of Denver, is set out as Appendix I to this opinion.

It is the plaintiff's belief that the aforesaid ordinance is unconstitutional on its face, and, alternatively, that it has been unconstitutionally applied as to her. Upon trial to the court, the trial judge concluded that, contrary to the assertions of the plaintiff, the ordinance is constitutional on its face and that it has not been in anywise unconstitutionally applied as to her. Accordingly, the trial court entered judgment in favor of the city and its officials, and the plaintiff now appeals the judgment thus entered. We affirm.

Before examining the ordinance, we shall first summarize the evidence adduced upon trial of the matter to the end that the constitutional issues may be viewed in their factual context. The trial court heard testimony from the plaintiff, as well as from a policeman and from two medical doctors, one of whom was employed by the city as the head of its venereal disease clinic. Accordingly, there was considerable of an evidentiary nature before the trial court, all of which is significant in our consideration of the claim that the ordinance was unconstitutionally applied to the plaintiff.

The plaintiff, a twenty-seven year old female, who described herself as a model and prostitute, moved to Denver in the fall of 1970, and she first came to the attention of the Denver Police Department on November 29, 1970. On this latter date, she was arrested in a hotel room where she was in the company of a male person not her husband. At the trial of the instant civil rights case, the plaintiff testified that on this particular occasion she had agreed to have sexual relations with her male companion for a fee of $100, which fee had been paid. She denied, however, that at the time of her arrest she was in bed, and stated that on the contrary she was fully clothed and having a drink when the officers knocked at the door. So, whether this was a quid pro quo transaction is not disclosed by the record. In any event, the plaintiff was arrested and placed in the city jail and charged with violating city ordinances relating to solicitation and prostitution. In connection with these ordinance violations, the plaintiff was permitted a so-called "deferred prosecution, " whereby she was not required to plead either guilty or not guilty, and the charges, after a passage of time, were dismissed. Although the record is not too clear, it appears that while in the city jail, plaintiff was given a blood test and an injection of penicillin and released on bond.

On May 21, 1971, and July 8, 1971, the plaintiff was issued a so-called "walk-in" order by the Denver police after complaints that plaintiff had been soliciting for acts of prostitution at a local Denver hotel bar. On neither of these occasions was the plaintiff placed in jail, but on the contrary she was simply ordered to report to the Department of Health and Hospitals for examination and possible treatment. On the first of these two occasions, the examination revealed that plaintiff had gonorrhea and drugs were administered therefor. On the second of these two occasions, the results of the examination were apparently negative to the end that no treatment was given.

On May 1, 1972, the plaintiff was given another "walk-in" order as she was alighting from her automobile preparatory to entering another Denver motel. On this occasion the plaintiff reported to the Department of Health and Hospitals with her attorney and refused to submit to any examination.

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The plaintiff's final contact with the Denver Police Department occurred on June 19, 1972 when she was again arrested in a hotel room with a male person not her husband. On this occasion, according to the plaintiff, she and her male companion were "talking about an act of prostitution, " but she added that any agreement had not been finalized. In any event, on this particular occasion plaintiff was again arrested and placed in the city jail, and charged with solicitation and prostitution. Thereafter, she was given the choice of being detained in the jail for forty-eight hours during which period of time she should be examined for venereal disease and treated therefor, if necessary, or simply taking penicillin, without an examination, in which event she would be immediately eligible for release. Plaintiff chose the latter alternative, and was orally given certain drugs, and released from custody. It is on this sequence of events that the plaintiff bases her civil rights action under 42 U.S.C. § 1983 and § 1985, claiming that the city and its officials acting pursuant to Ordinance 735 violated...

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