A federal judge is allowing a former Milwaukee County jail inmate who is alleging in a lawsuit she was shackled during childbirth to make class action allegations on behalf of pregnant women or new mothers who also were shackled by county jailers.
The county acknowledged in a court filing that the woman was restrained by handcuffs and a leg restraint while she was in labor and by a handcuff while she was delivering.
There could be as many as 300 women in the class -- which the suit defines as women hospitalized for labor, delivery, or post-partum medical care since February 2010 -- if the lawsuit is allowed to proceed as a class action, the woman's lawyers said in a court filing. Thirty-six jail inmates gave birth between Jan. 1, 2010, and Feb. 19, 2016, according to federal court documents.
The jail is under the jurisdiction of Sheriff David Clarke.
Shackling women in the weeks surrounding giving birth is opposed by the American Correctional Association, the American Bar Association, the American Public Health Association, the American College of Obstetricians and Gynecologists, the American College of Nurse Midwives, and the World Health Organization, the suit said. The US Marshals Services and the Federal Bureau of Prisons has sharply restricted the use of restraints on pregnant women, the suit said.
The county's inconsistencies and delays in providing information requested by the plaintiff played a part in prompting U.S. District Judge Rudolph T. Randa to allow the class action allegations, the first step toward a class action lawsuit. Milwaukee County and Clarke are both defendants in the suit.
Randa also found that "County Defendants have not established that the proposed class allegations are futile."
The shackling allegations grew out a lawsuit filed in 2014 by a woman who said she was sexually assaulted five times by Xavier Thicklen, then a county correctional officer. Thicklen, who denied assaulting the woman, eventually pleaded guilty to one count of felony misconduct in office and was sentenced by Milwaukee County Circuit Judge Daniel Konkol to three days in the House of Correction. Konkol also ordered him to pay a $200 fine. Thicklen is also a defendant in the suit.
Besides alleging the assaults, the woman said she was shackled while she delivered her baby "in accordance with the Jail’s policy, custom, and/or widespread practice of shackling all pregnant women who had a high bond, relative to other detainees."
"Plaintiff was shackled by one wrist restraint and one leg restraint during labor, and the leg restraint was removed only briefly during deliver....," the complaint said. "When Plaintiff left her hospital bed to go to the bathroom, she was secured with a 'belly-chain' around her waist with her wrists attached to the waist and her legs attached to one another by leg-irons."
The county acknowledged in its response to the allegations that the woman was "was restrained by one handcuff and one leg restraint during labor, but only by one handcuff during delivery, that she was restrained by a 'belly chain' when she left her bed to use the restroom."
The county denied any misconduct and said the suit should not become a class action.
The shackling was excessive and "not rationally related to a legitimate, nonpunitive purpose," the suit said. The suit said shackling pregnant women can impede doctors from taking quick action in some emergency situations,
In addition, the suit said, "Belly chains and leg irons can impact the mother's balance and increase the risk of falls thereby endangering the life and health of the child. Cuffing a woman's hands may prevent the breaking of a fall and impede a woman's ability to protect her stomach. Preventing walking during the first stage of labor may deny the woman the benefits of labor acceleration and discomfort alleviation. Preventing walking during the postpartum phase may enhance the risk of deep vein thrombosis and its life-threatening embolic complications."
The county in May 2015 first submitted to the court a Sheriff's Department policy requiring jail inmates to be restrained when they are in a hospital room. In August, a Sheriff's Department official said in a deposition that a hospitalized inmate must be restrained “[u]nless there is a medical reason identified by the hospital staff that would determine otherwise,” Randa wrote.
That key exception was not in the written Sheriff's Department official policy.
Clarke testified in a December deposition that “'[p]olicies are guidelines. . . . The policy does not preclude the use of good judgment and common sense,'” the judge said. Clarke said that “'there are exceptions to every policy, but you better call somebody in most cases and let them know this is outside the policy, boss, here’s what I’m going to do and here’s why. Sounds good to me, and then they would do it.'”
Judge Randa's order is below.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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