United States v. Wyandotte County, Kansas

• Decision Date: 21 June 1973
• Docket Number: No. 72-1633.,72-1633.
• Citation: 480 F.2d 969
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. WYANDOTTE COUNTY, KANSAS et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

480 F.2d 969 (1973)

UNITED STATES of America, Plaintiff-Appellant, v. WYANDOTTE COUNTY, KANSAS et al., Defendants-Appellees.

No. 72-1633.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted March 30, 1973.

Decided June 21, 1973.

James P. Turner, Washington, D. C., for plaintiff-appellant.

Nick A. Tomasic, Kansas City, Kan., for defendant-appellee Atty. Gen. for the 29th Judicial District of Kansas.

Robert J. Foster, Kansas City, Kan., for defendant-appellee Board of Commissioners of Wyandotte County.

Before LEWIS, Chief Judge, BARRETT, Circuit Judge, and TALBOT SMITH,^* Senior District Judge.

PER CURIAM.

This case concerns the assignment of prisoners on a racial basis to areas of incarceration in the Wyandotte County Jail, Kansas City, Kansas. The action (seeking injunctive relief) was filed by the Attorney General of the United States pursuant to Section 301(a) and (b) of Title III of the Civil Rights Act of 1964 (42 U.S.C. § 2000b(a) and (b)). It was the charge of the complaint that the Wyandotte County Jail is a "public facility" within the meaning of the Act¹ and that the defendants maintained racially segregated jail facilities in violation of Title III, the Equal Protection Clause of the Fourteenth Amendment and a written contract² containing a no-discrimination clause between the Director of the Federal Bureau of Prisons and Wyandotte County, Kansas.

There is no dispute concerning the essential facts. As the district court found "Assignment to one of the two tanks an East tank and a West tank is made upon a racial basis, with Negroes generally being assigned to the East tank, and white prisoners being assigned to the West tank."³ Nevertheless the district court entered its memorandum opinion and order, 343 F.Supp. 1189, dismissing the complaint and denying all relief requested by the United States.

We need not labor the point that a State may not constitutionally require segregation of public facilities, Johnson v. Virginia, 373 U.S. 61, 83 S.Ct. 1053, 10 L.Ed.2d 195 (1963), and the principle is as applicable to jails as to other public facilities, Lee v. Washington, 390 U. S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968).

The defense to the charges made was that the segregation employed was "not intentional or systematic segregation but was a result of and justified by a desire to protect individuals against personal abuses and violence," reliance being placed upon the statement in the concurring opinion in Lee v. Washington, supra, to the effect that "prison authorities have the right, acting in good faith and in particularized circumstances, to take into account racial tensions in maintaining security, discipline, and good order in prisons and jails."

We cannot construe this caveat as authorizing the consistent and settled practice of "Negroes to the East tank, whites West tank," we have before us. The use of the words "particularized circumstances" is significant, the quoted clause doing no more than recognizing the commonly accepted principle⁴ that in the administration of prison affairs there may arise unusual situations in which security and discipline demand segregation for limited periods.

The record before us, moreover, does not warrant even the limited and isolated segregation recognized as permissible in penal situations of unusual stress. The practice of segregation had had its origins in this jail "a few years back." The present Sheriff and the Undersheriff both had been told that when the races had been placed together at that time, violence had resulted because, it was said, of racial tensions. Consequently, as the Sheriff testified, "It was already segregated when I got there and I just continued to practice on the advice of some of my predecessors and the personnel that worked there."⁵ However, the Sheriff personally knew of no specific examples of interracial violence during his tenure, and although racial fights had occurred "once in a while," they occurred no more frequently than for other reasons. A former jailer, Mr. Govers, testified in fact that he knew of no fights engendered by racial animus. Warden Pacheco was of the opinion that they occurred "once in a while." "More frequently," he was asked, "than fights for other reasons?" "No," he replied, "I don't think so." Fighting actually seems to have occurred less frequently among inmates in the integrated areas (here the violent and problem cases) than in the segregated tanks.

There was some attempt at the trial to justify the segregation here imposed on the ground that the inmates of these two tanks were "hardened" criminals with such propensities to violence that segregation was necessary for the "safety of everybody concerned." The actual administration of the institution does not support the claim. The real problem makers are sent to the non-segregated northwest and northeast tanks. The balance, except for such special cases as drunks, juveniles and women, are sent to the segregated tanks, the populations of which range in years from 16, 17 and 18 through the 40's and 50's and in offense from misdemeanor, "joy rider," traffic violator, burglar, armed robber and narcotic offender to convicted murderer.⁶ The appellation of "hardened criminal" to such a routine mix would, without more, seem manifestly inappropriate.

What all of the above finally boils down to is a vague fear on the part of the authorities that desegregation may result in violence. This is not enough. The words of the Supreme Court in Watson v. Memphis, 373 U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529 (1963), are peculiarly appropriate to the record before us: "Neither the asserted fears of violence and tumult nor the asserted inability to preserve the peace was demonstrated at trial to be anything more than personal speculations or vague disquietudes of city officials." 373 U.S. at 536, 83 S.Ct. at 1320.

But beyond this, the argument that desegregation of public facilities might provoke violence has never been accepted to justify unconstitutional segregation. Over fifty years ago it was held that,

"It is urged that this proposed segregation will promote the public peace by preventing race conflicts. Desirable as this is, and important as is the preservation of public peace, this aim cannot be accomplished by laws or ordinances which deny rights created or protected by the federal Constitution." Buchanan v. Warley, 245 U.S.

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