By Gretchen Schuldt
Polk County is not liable for the actions of a county jail corrections officer who repeatedly sexually assaulted two female inmates while they were incarcerated, a federal appeals court ruled last week in a split decision.
The assaults occurred over three years.
In tossing out two $2 million jury verdicts against Polk County for compensatory damages, the three-judge Seventh Circuit Court of Appeals panel did uphold $5.75 million in verdicts for each of the women against the guard, Darryl Christensen, who is now serving a 30-year stretch in prison.
Christensen is liable for the full $2 million compensatory damages verdicts and $3.75 million in punitive damages for each woman.
"Although we do not overturn a jury verdict lightly, we must assure the jury had a legally sufficient evidentiary basis for its verdict," U.S. Circuit Judge Michael B. Brennan wrote for the majority. "It is clear to us that the trial evidence fails to satisfy the necessary elements" to show county responsibility.
The decision is similar to one the Seventh Circuit made in a case involving the Milwaukee County Jail. In that case, too, the court found the county was not responsible for the acts of its employees when a guard repeatedly raped an inmate.
Brennan was joined in his opinion by U.S. Circuit Judge William J. Bauer. U.S. Circuit Judge Michael Y. Scudder Jr. dissented.
"What worries me about today's decision is that, as a very practical matter, municipalities may conclude that there is not much to be done to stop a rogue guard from engaging in secretive and heinous conduct in violation of a bright-line policy prohibiting sexual contact with inmates," Scudder wrote. "That view would be as mistaken as it is dangerous, for cities and counties have a meaningful responsibility and role to play in preventing the sexual abuse of inmates in their custody by the guards they employ."
"That view would be as mistaken as it is dangerous, for cities and counties have a meaningful responsibility and role to play in preventing the sexual abuse of inmates in their custody by the guards they employ." – U.S. Circuit Judge Michael Y. Scudder
The two women were inmates in the Polk County Jail at various times from 2011 to 2014. Christensen admitted he had sex with each. He was careful not to get caught – he planned his encounters for when no one was around in spots to which he controlled the access.
He urged the women not to report him. They complied.
Christensen was busted when a former inmate reported to an investigator in another county her own sexual activity with Christensen. That investigator contacted Polk County officials, who started their own investigation. When they confronted Christensen, he immediately resigned.
He eventually pleaded guilty to five counts of second-degree sexual assault by a corrections officer, according to court records.
State law forbids corrections officers from having sexual contact with inmates.
The women filed suit against Christensen and the county, alleging violation of their constitutional rights. The suit included four main allegations, the decision said: the jail's sexual assault policies and training were inadequate; the jail customarily tolerated sexually offensive comments by guards; the investigation into earlier conduct by a different guard, Allen Jorgenson, demonstrated that the jail's sexual assault policy was inadequate and that the jail minimized sexual abuse; and the jail failed to implement recommendations under the federal Prison Rape Elimination Act.
The panel rejected all four arguments. There was nothing that showed Christensen needed more sexual assault policy training, Brennan wrote. Christensen admitted he knew his sex with inmates was criminal and violated jail policy. In addition, the jail's policy book clearly prohibits sexual contact with inmates.
The judges also found that a captain's "tier talk," sometimes uncomplimentary to inmates, was not shown to be sexually explicit or that the captain knew about such offensive comments by staff.
The majority also said Jorgenson's actions were investigated and he was given a written reprimand. Later, the inmate involved gave more details about alleged sexual activity with Jorgenson. Those activities could not be confirmed, and officials believed the written reprimand still was the appropriate discipline, Brennan said.
Finally, he said, adherence to Prison Rape Elimination Act standards are voluntary for local jails and state inspectors found that the Polk County Jail was in compliance with state law and standards.
Scudder, in his dissent, said the county's training on preventing sexual harassment and abuse of inmates "was sparing at best.... The record shows that the only training dedicated to preventing the sexual assault of inmates by guards came in a single session on the Prison Rape Elmination Act in 2014 – well after much of Darryl Christensen's abuse of (the women) had occurred."
There also was no evidence, he said, that inmates were part of any efforts to stem sexual abuse.
"The jury, for example, heard no account of the county ensuring or reinforcing that inmates had access to a safe and confidential channel through which to report inappropriate sexual contact by jail guards," he said.
The record shows that "tier talk" among guards included sexual banter and that the captain was aware of it, Scudder said.
The earlier Jorgenson investigation confirmed his use of security cameras to focus on female inmates and his flirtations with inmates. Jail staff members, as they screened inmate mail, saw multiple references to his inappropriate behavior, Scudder wrote.
More serious issues were revealed in a letter the inmate wrote. She said the guard told her "he has wanted me to lift my shirt," "seeing us in the shower" and saying "he wants me to ride topless in his boat," Scudder said.
While investigators felt it was more likely she was telling the truth, they did not increase the level of discipline issued against the guard. He resigned "a short time later when female coworkers complained that he had made inappropriate comments toward them."
The jury was entitled to believe the county was aware of sexually predatory practices in its jail, Scudder wrote.
"A broader takeaway was available to the jury on this evidence: apart from reprimanding Jorgenson, the county took no action to reinforce its sexual assault policies with all other male guards....Nor did the county hold a formal training session, or even a short informal meeting, to remind guards of the clear and absolutel prohibition on any and all sexual contact with inmates."
Polk County was not required to take any specific step, Scudder said,
"The essential observation – the conclusion available to the jury – is much more limited: the...incident informed the county that a guard had engaged in prohibited sexual conduct towards female inmates. With that information in hand, the one option unavailable to Polk County was the one it chose – doing nothing," he wrote.
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