Reynolds v. McNichols

• Decision Date: 13 December 1973
• Docket Number: No. 73-1407.,73-1407.
• Citation: 488 F.2d 1378
• Parties: Roxanne REYNOLDS, Plaintiff-Appellant, v. William McNICHOLS, Mayor of the City and County of Denver, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

488 F.2d 1378 (1973)

Roxanne REYNOLDS, Plaintiff-Appellant, v. William McNICHOLS, Mayor of the City and County of Denver, et al., Defendants-Appellees.

No. 73-1407.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted October 16, 1973.

Decided December 13, 1973.

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 policemen. 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 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.

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 her rights under the Fourth and Fourteenth Amendments. By way of the relief prayed for, she sought monetary damages as well as injunctive relief. Let us now examine the ordinance in question as its various provisions relate to the facts of this case.

The legislative intent behind enactment of Ordinance 735 was to attempt to bring under control, and lessen, the incidence of venereal disease in Denver by determining and treating the source of such infection. The evidence before the trial court showed, incidentally, that the incidence of venereal disease had reached virtually epidemic proportions. To that end, the police were empowered under prescribed conditions to detain in jail certains persons "reasonably suspected" of being infected with a venereal disease, examine them for the presence of a venereal disease, and treat them for the same, if necessary. Such persons thus detained were ineligible for release on bond until the examining process was completed, which, according to the evidence, took forty-eight hours.

As an alternative to detention in jail for examination and treatment, the ordinance also provides that the police may "order in" certain other persons, "reasonably suspected" of having a venereal disease to the Department of Health and Hospitals for examination and treatment of venereal disease on either an in-patient or out-patient basis. As to whether one would be detained in jail for examination and treatment, or simply ordered to report to the Department of Health and Hospitals for examination and treatment, the ordinance further provided that the only persons who could be detained in jail for examination and treatment were those who were "reasonably suspected" of being infected with venereal disease by virtue of the fact that they had been arrested and charged with a violation of certain enumerated offenses, including, for example, the solicitation and prostitution ordinances of the City and County of Denver. A person who was "reasonably suspected" of having a venereal disease, but who nonetheless had not been thus arrested and charged, could only be served with a "walk-in" order to be examined and treated at the Department of Health and Hospitals. Although the ordinance has other provisions and is indeed quite comprehensive, the foregoing constitute what we deem to be the pertinent portions of Ordinance 735 relating to the plaintiff and her claims for relief.

As indicated, the plaintiff contends that the aforesaid ordinance is unconstitutional on its face, and, alternatively, that if it be constitutional on its face, then it has been unconstitutionally applied. In thus contending, plaintiff relies on the Fourth and Fourteenth Amendments. And her constitutional attack is aimed both at the provisions of Ordinance 735 which authorize the issuance of a walk-in order, as well as the provisions which purport to authorize under certain circumstances detention in jail for the purpose of examination and possible treatment.

Plaintiff's constitutional argument is summarized as follows: (1) The ordinance authorizes involuntary detention, without bond, involuntary examination and involuntary treatment, all in violation of her Fourth Amendment right to be secure in her person; (2) the ordinance does not spell out adequate guidelines as to the class of persons who can be compelled to submit to examination and treatment; (3) the current practice whereby a person, though initially detained in jail, is nonetheless eligible for immediate release if he or she submits to the injection of penicillin, even though there be no examination to indicate the presence of gonorrhea, results in an unconstitutional coercion of the person thus detained whereby one submits to an invasion of her right to be secure in her person in exchange for...