King v. Thornburg

• Decision Date: 17 April 1991
• Docket Number: Civ. No. 288-144.
• Citation: 762 F. Supp. 336
• Parties: Chevene B. KING, Jr., Plaintiff, v. Richard THORNBURG, et al., Defendants.
• Court: U.S. District Court — Southern District of Georgia

762 F. Supp. 336

Chevene B. KING, Jr., Plaintiff, v. Richard THORNBURG, et al., Defendants.

Civ. No. 288-144.

United States District Court, S.D. Georgia, Brunswick Division.

April 17, 1991.

Fletcher Farrington, Savannah, Ga., for plaintiff.

Vincent M. Garvey, Neal Dittersdorf, Dept. Of Justice, Washington, D.C., for defendants.

OWENS, Chief Judge, Sitting by Designation.

Plaintiff Chevene B. King, Jr., an Albany, Georgia attorney, as a result of being (1) arrested by deputy United States marshals while in Brunswick, Georgia for failing to arrange for his law partner or an associate to appear in his stead before a United States magistrate judge at a hearing scheduled in Savannah, Georgia, (2) handcuffed and waist chained, and (3) then transported to the United States Courthouse in Savannah, brought this civil action asserting causes of action under the Fourth Amendment to the Constitution of the United States. The plaintiff and the defendants each have moved for summary judgment. Rule 56 Fed.R.Civ.Proc.

The entire file, the record, the relevant authorities and the arguments of counsel having been carefully considered, the following constitutes the court's ruling on those motions.

THE MATERIAL UNDISPUTED FACTS

A United States Magistrate Judge of the Southern District of Georgia scheduled a hearing in the criminal property forfeiture case of United States v. Blackshear, et al., for March 31, 1988 to be held in Savannah, Georgia, and notified plaintiff King, who represented one of the defendants, to be present.

Several days before the date of the hearing plaintiff telephoned the magistrate judge's office and informed his secretary that he would be unable to be present on March 31, 1991, because he was then engaged in a criminal trial in the Superior Court of Glynn County, Brunswick, Georgia and requested a continuance. Upon the magistrate judge's instructions, the continuance was denied. Plaintiff King then informed the magistrate judge's secretary that his partner, Carl Bryant, Esquire, would possibly be able to appear in his stead.

On the morning of March 31, plaintiff King was still engaged in a criminal trial in Glynn County Superior Court and therefore could not appear. Plaintiff's partner Carl Bryant had to appear in Dougherty County Superior Court in Albany, Georgia on the morning of March 31, 1991. He telephoned the magistrate judge's office to advise him that he was in Superior Court in Albany, Georgia on another matter and would not be able to appear in plaintiff King's stead in Savannah.

Upon hearing this the magistrate judge telephoned the defendant, Chief Deputy Marshal Thomas M. Brown, and told the chief deputy that he had a lawyer who had not shown for a hearing and that he wanted him picked up in Brunswick and brought to the courthouse in Savannah. The chief deputy instructed two deputies to carry out the magistrate judge's instructions. One of those deputies, Philip Duncan, talked to the magistrate judge and was advised that plaintiff was on trial in Glynn County Superior Court, Brunswick, Georgia and was to be taken into custody at the conclusion of that trial and brought to Savannah.

Deputy Duncan testified that he told the magistrate judge that they would take plaintiff into custody, but advised the magistrate judge that if he wanted plaintiff taken into custody they would have to use restraints. The magistrate judge, nevertheless, advised that he wanted plaintiff taken into custody, but to do so discreetly.

Deputies Duncan and Heifferon then drove from Savannah, Georgia to Brunswick, Georgia, waited until the criminal trial plaintiff was involved in concluded, invited him outside where he was handcuffed and waist chained, and then transported him to Savannah, Georgia. There he was taken before the magistrate judge.

At the time of plaintiff's arrest no written order had been issued by the Magistrate Judge. The next day the magistrate Judge entered a written order.

DISCUSSION

Plaintiff's first contention is that Attorney General Richard Thornburg¹ and Stanley Morris, as Director of the Marshals Service, promulgated and adopted policies and procedures regarding the seizure of persons within the jurisdiction of the United States that are clearly in excess of their statutory and constitutional authority.

In particular, plaintiff challenges the United States Marshals Service's written restraint policy which provides:

a. General.

1) These provisions apply to the use of restraints on all prisoners (i.e., adult, juvenile, male and female).

2) These are minimum requirements only. USMS personnel may use additional authorized restraining equipment.

3) USMS personnel are advised that the burden of justification when any exception is made to use less than the minimum requirements rests upon the employee that authorizes the exception.

c. Automobiles and Station Wagons, Prisoner Buses, and Vans

a) When prisoners are transported by these conveyances, handcuffs, waist chains, and leg irons will be used on each prisoner.

Chapter 8.4-3.a-c. Plaintiff contends that the Marshals Service restraint policy is unreasonable because it requires that every person taken into custody by the Marshals Service be placed in "body chains" without regard to the nature of the crime charged. Plaintiff argues that "putting chains on a peaceful arrestee is the maximum possible intrusion on his liberty short of physical violence."

In Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), the Supreme Court held that "all claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and `its reasonableness' standard, rather than under a `substantive due process' approach." Id. at 394, 109 S.Ct. at 1870. In determining whether the force used to effect a particular seizure is reasonable under the Fourth Amendment, the court must balance "the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Id. at 396, 109 S.Ct. at 1871.

Mr. Safir, Deputy Director of Operations for the Marshals Service, states in his declaration that the Marshals Service's restraint policy is designed to preclude escape attempts and prevent injuries to deputies, private citizens, and the arrestee. As noted by Mr. Safir, "there is no certain correlation between the offense an individual is charged with and his or her predilection for escape or violence." Plaintiff King argues that nothing is certain. He argues that there is always risk associated with freedom. He would have this court place that risk on the marshals who are called upon to arrest and transport prisoners. Plaintiff argues that the interest put forth by the government are not compelling enough to justify the use of "body chains" on every person who comes into contact with the Marshals Service. The court disagrees.

In the day and age in which we live, neither the Marshals Service nor any other law enforcement agency should be made to risk the safety of its employees, the safety of the community or the safety of the arrestee, by being required to make subjective judgments as to an arrestee's potential for violence based upon the nature of the crime charged.

Even plaintiff's expert, Captain Ronald E. Angel of the Georgia State Patrol, testified that the policy of the Georgia State Patrol is that "any person who is arrested by a member of the department and is transported, placed in a patrol car to be transported, that person should be restrained for the safety of the officer and for the safety of the individual that has been arrested." Captain Angel further testified that the specific language "should" was intentionally placed in the policy as opposed to "shall" to take away the mandatory requirement that every person transported be restrained. However, in response to questioning by counsel for the plaintiff, Captain Angel testified that in the patrol's training program "the thrust of the training is that they patrolmen should restrain."

Although the Marshals Service policy requires that restraints be used at all times, the marshals do have some latitude in determining the amount of restraint to be used. However, if less than the minimum restraint is used, the burden is upon the individual marshal to justify it. Thus, contrary to plaintiff's argument, every incidence of arrest by the Marshals Service will not necessarily result in the use of handcuffs, waist chains and leg irons. The marshal, after evaluating the circumstances, could make the decision to use less than the minimum required restraint. The fact that a particular marshal refuses to exercise that discretion in a given circumstance does not make the policy unreasonable.

Plaintiff further argues that in this particular case, he was not charged with having committed an offense or suspected of having committed an offense. As is frequently noted in the law, "bad facts, make bad law." The court cannot base it decision on the reasonableness of the Marshals Service restraint policy on this situation, which admittedly never should have happened and is unlikely to repeat itself. Viewed objectively, the Marshals Service restraint policy reasonably balances the government's legitimate interest in protecting the safety of the marshals, innocent bystanders and the arrestee, as well as the government's interest in preventing the escape of an arrestee against the arrestee's liberty interest. In the court's considered judgment, the Marshals Service restraint policy is therefore not unconstitutional.

Having found that the Marshals Service restraint policy is reasonable and therefore constitutional, the court further finds that summary judgment should be granted in favor of the Attorney General, Richard Thornburg and Stanley Morris, Director of the United States Marshals Service....