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| [1] | UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT |
| [2] | No. 73-1407 NOVEMBER TERM - 1973 |
| [3] | 1973.C10.40011 <http://www.versuslaw.com>;
488 F.2d 1378 |
| [4] | Decided: December 13, 1973. |
| [5] | ROXANNE REYNOLDS, PLAINTIFF-APPELLANT, v. WILLIAM MCNICHOLS, MAYOR OF THE CITY AND COUNTY OF DENVER, ET AL., DEFENDANTS-APPELLEES |
| [6] | Appeal from the United States District Court For the District of Colorado
(D.C. No. C-3366). |
| [7] | John Bock (Peter H. Ney, on the brief), for Plaintiff-Appellant. |
| [8] | Richard L. Dally (Wesley H. Doan, Max P. Zall, Gerald Himelgrin, Marshall
Fogel and J. Bayard Young, on the brief), for Defendants-Appellees. |
| [9] | Lewis, Chief Judge, and Jones*fn* and
McWilliams, Circuit Judges. Lewis, Chief Judge, (concurring). |
| [10] | Mcwilliams |
| [11] | McWILLIAMS, Circuit Judge. |
| [12] | 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. |
| [13] | 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. |
| [14] | 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. |
| [15] | 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. |
| [16] | 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. |
| [17] | 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. |
| [18] | 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 would 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. |
| [19] | 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 certain 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. |
| [20] | 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. |
| [21] | 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. |
| [22] | 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 immediate release;
(4) the injection of penicillin without first determining the presence of
gonorrhea is contrary to accepted medical practice; and (5) the ordinance
is applied only to females and not to males. In our view, none of these
arguments stands up under scrutiny. |
| [23] | The principal thrust of the ordinance is aimed at bringing under control
the source of communicable venereal disease. To that end, the city authorities
are empowered to examine and treat those reasonably suspected of having
an infectious venereal disease. It is not illogical or unreasonable, and
on the contrary it is reasonable, to suspect that known prostitutes are
a prime source of infectious venereal disease. Prostitution and venereal
disease are no strangers. |
| [24] | In the instant case, the plaintiff freely admits, and the record amply
supports her admission, that for some two and one-half years she was a prostitute
operating in the Denver area and the fact that she was a prostitute was
known to the local police. And in our view the fact that the plaintiff was
a prostitute is of crucial significance. Finally, on at least one occasion,
plaintiff was found to be infected with gonorrhea. Let us now examine the
authorities. |
| [25] | Involuntary detention, for a limited period of time, of a person reasonably
suspected of having a venereal disease for the purpose of permitting an
examination of the person thus detained to determine the presence of a venereal
disease and providing further for the treatment of such disease, if present,
has been upheld by numerous state courts when challenged on a wide variety
of constitutional grounds as a valid exercise of the police power designed
to protect the public health. Cases involving state statutes or municipal
ordinances similar to, though not necessarily the same as, the ordinance
here in question, are: Welch v. Shepherd, 165 Kan. 394, 196 P.2d 235 (1948);
Ex Parte Fowler, 85 Okla. Crim. 64, 184 P.2d 814 (1947); People v. Strautz,
386 Ill. 360, 54 N.E.2d 441 (1944); Varholy v. Sweat, 153 Fla. 571, 15 So.2d
267 (1943); City of Little Rock v. Smith, 204 Ark. 692, 163 S.W.2d 705 (1942);
and Ex Parte Arata, 52 Cal. App. 380, 198 P. 814 (1921). |
| [26] | The aforesaid proposition would also appear to be in accord with the rationale
of such cases as Jacobson v. Massachusetts,
197 U.S. 11,
49 L. Ed. 643,
25 S. Ct. 358
(1905), and Compagnie Francaise v. State Board of Health,
186 U.S. 380,
46 L. Ed. 1209,
22 S. Ct. 811
(1902), the former being concerned with compulsory smallpox vaccinations
and the latter with a statute quarantining persons suspected of having infectious
disease and precluding others from entry into the quarantined area. These
two cases were concerned with, among other things, the interaction between
the police power and the Fourteenth Amendment. Nor in our view is the proposition
set forth above foreclosed by Camara v. Municipal Court of the City and
County of San Francisco,
387 U.S. 523,
18 L. Ed. 2d 930,
87 S. Ct. 1727
(1967). It is true that in Camara the Supreme Court struck down on Fourth
Amendment grounds a municipal ordinance of San Francisco which authorized
under certain conditions a warrantless inspection of an apartment building
under the city's housing code. At the same time, however, the Court stated
that nothing in the opinion was intended to foreclose "prompt inspections,
even without a warrant, that the law has traditionally upheld in emergency
situations," and cited with approval both Jacobson v. Massachusetts,
supra, and Compagnie Francaise v. Board of Health, supra. |
| [27] | Under the authorities above cited, we conclude, as did the trial court,
that the provisions of Ordinance No. 735 authorizing limited detention in
jail without bond for the purpose of examination and treatment for a venereal
disease of one reasonably suspected of having a venereal disease by virtue
of the fact that she has been arrested and charged with solicitation and
prostitution is a valid exercise of the police power. It would seem to follow
that the milder provisions of the ordinance providing for a walk-in order
of one reasonably suspected of having a venereal disease for the purpose
of involuntary examination and treatment are also valid under the police
power, and we so hold. |
| [28] | We now turn to the plaintiff's contention that the ordinance has been
unconstitutionally applied to her. As above indicated, the evidence was
that as a matter of practice a person detained in jail under the provisions
of Ordinance 735 was given a choice between staying in jail while the examination
was being conducted, or submitting to an immediate injection of penicillin,
without examination, in which latter event the person would be eligible
for immediate release. According to the record, there was no particular
risk involved in the taking of a penicillin shot, nor was there any injurious
effect from the injection of one who did not in fact have gonorrhea. On
this state of the record, we find no unconstitutional coercion of the plaintiff.
The provisions of the ordinance permitting limited detention for involuntary
examination and treatment of a venereal disease being in themselves constitutional,
the fact that the city provides a less onerous alternative, which the plaintiff
in this case elected to follow, does not violate any constitutional right
of the plaintiff. |
| [29] | Similarly, the claim that the ordinance was enforced only against females,
and not males, is, under the circumstances of this case, insufficient to
invoke the equal protection provision of the Fourteenth Amendment. The trial
court indicated that it was of the view that the equal protection argument
was not properly within the issues raised by the pleadings in the case and
accordingly did not consider it. In any event, in our view plaintiff's suggestion
that she was unconstitutionally dealt with by the city authorities is under
the circumstances unavailing. |
| [30] | In regard to her equal protection argument, the fact that on the two occasions
when plaintiff was arrested in a hotel room the plaintiff's customer was
not himself arrested and detained for examination is not significant. From
the record before us, there is nothing to indicate that plaintiff did in
fact have sex relations with either of her male companions, though evidence
of solicitation was obvious. Such being the case, there was no reason to
examine plaintiff's male companions. |
| [31] | Be that as it may, as above indicated, the ordinance is aimed at the primary
source of venereal disease and the plaintiff, being the prostitute, was
the potential source, not her would-be customer. Plaintiff's argument in
this regard would perhaps carry more weight if she had shown that male prostitutes
were dealt with differently than female prostitutes. There is nothing in
the record to show that such is the case. In fact, there is nothing in the
record to indicate that male prostitution is as yet the vogue in Denver. |
| [32] | Judgment affirmed. |
| [33] | APPENDIX |
| [34] | I. |
| [35] | 735 -- VENEREAL DISEASES |
| [36] | 1. Protection of Public Health. In order to protect persons in the City
and County of Denver from the spread of communicable venereal disease the
department of health and hospitals is empowered and authorized and the manager
of health and hospitals is directed to use every available means to ascertain
the existence of and to investigate immediately all suspected cases of communicable
venereal disease and to determine the sources of such infections. Certain
persons reasonably suspected to be infected with a communicable venereal
disease may be detained in jail, examined, and if determined to be so infected,
treated, in accordance with the provisions of this section. The manager
of health and hospitals or his authorized representative shall order other
persons reasonably suspected to be infected with a communicable venereal
disease to be examined at the department of health and hospitals on an in-patient
or out-patient basis, or, with the consent of the manager or his representative,
by a person licensed to practice medicine, and to be treated medically for
such disease, if necessary. (Sec. 1, Ord. 423, Series 1955) |
| [37] | .1-1. Categories of Suspected Persons. A person in any of the following
categories may be reasonably suspected to have venereal disease: (Sec. 1,
Ord. 423, Series 1955) |
| [38] | .1-1(1). Any person who is arrested and charged in the municipal court
of the city and county or any other court in the city and county with an
offense in the nature of or involving vagrancy, prostitution, rape, a violation
of this article, or another offense related to sex and any person convicted
of any such offense in the city and county. (Sec. 1, Ord. 423, Series 1955) |
| [39] | .1-1(2). Any person reasonably suspected to have had a contact with another
individual reasonably believed to have had a communicable venereal disease
at the time of such contact and any person who is reasonably believed to
have transmitted any such disease to another individual. Any person who
has had any such disease or who has been convicted of any offense of the
kinds herein specified within twelve months next past, and who is reasonably
believed to be engaged in any activity which might have occasioned exposure
to a communicable venereal disease. (Sec. 1, Ord. 423, Series 1955) |
| [40] | .1-2. Detention in Jail. Suspected persons in the categories enumerated
in Section 735.1-1(1) may be detained in jail. When any person so detained
is determined not to have venereal disease in communicable form the manager
shall release the individual from detention for health purposes. The detention
of any person in jail under the provisions hereof shall continue only for
such time as is reasonably necessary to examine such person and render treatment
if such person is found to have a venereal disease in a communicable form.
The provisions hereof shall not be utilized as, nor construed to be, a penalty
or punishment. No person detained for health under the provisions hereof
shall be released from such detention even if he or she is otherwise eligible
for release on bond or by reason of payment of fine, or termination of sentence
imposed. (Sec. 1, Ord. 423, Series 1955) |
| [41] | .1-3. Examination in Jail. Every suspected person detained in jail under
the provisions of Section 735.1-2 shall be examined by the department of
health and hospitals for the purpose of determining whether or not such
person is, in fact, infected with a communicable venereal disease. Every
such person shall submit to such examinations as are necessary and permit
specimens to be taken for laboratory analyses. The detention of each suspected
person shall continue until the results of such examinations are known and
the person found to be free from any such disease, or, if infected, until
the disease is no longer communicable. (Sec. 1, Ord. 423, Series 1955) |
| [42] | .1-4. Treatment in Jail. The department of health and hospitals shall
treat every person suspected to have venereal disease who has been detained
and examined in jail and found to have any such disease. The treatment shall
continue until the disease is no longer communicable. (Sec. 1, Ord. 423,
Series 1955) |
| [43] | .1-5. Examination and Treatment at Department or by Private Physician.
Every suspected person in the categories enumerated in Section 735.1-1(2),
and in the categories enumerated in Section 735.1-1(1) who is not detained
in jail shall be examined at the department of health and hospitals on an
in-patient or out-patient basis as determined in individual instances by
the manager of health and hospitals or his authorized representative. Each
such person shall submit to examinations as necessary and permit specimens
to be taken for laboratory analyses and shall comply with the directions
of the manager or his authorized representative with relation to hospitalization
on an in-patient basis or attendance at clinic on an out-patient basis,
as the case may be. Each such person shall continue to follow these directions
until the results of his or her examination are known and the person determined
to be free from any such disease, or, if infected, until the disease is
no longer communicable. With the consent of the manager or his authorized
representative a suspected person may be at his or her expense examined
by a doctor licensed to practice medicine and treated medically for such
disease, if necessary. In these latter instances, the manager or his authorized
representative shall receive reports of examinations and treatment and other
information relative to the problems involved from the medical doctor selected.
(Sec. 1, Ord. 423, Series 1955) |
| [44] | .1-6. Violations. It shall be unlawful to refuse to submit to examination
or treatment provisions hereof or to violate any order of detention. It
shall be unlawful to refuse to obey any order of the manager of health and
hospitals or his authorized representative requiring examinations and treatment,
if necessary, for such disease, or any other order issued hereunder. (Sec.
1, Ord. 423, Series 1955) |
| [45] | .2. Duties of Manager of Safety and Excise and Police Officers. The manager
of safety and excise and the officers of the police department of the city
and county are hereby authorized, empowered, and directed to implement the
purposes of Section 735.1 in accordance with the provisions of this section.
(Sec. 2, Ord. 423, Series 1955) |
| [46] | .2-1. Manager of Safety and Excise. The manager of safety and excise shall
cause to be furnished to the department of health and hospitals information
pertinent to the enforcement of Section 735.1 with relation to persons who
are arrested and charged or otherwise imprisoned in any jail administered
by the department of safety and excise. The manager of safety and excise
is directed to make available in such jails an area, room, or place which
may be used as a detention for health facility and for examinations. The
manager of safety and excise, officers of the police department, and employees
of the department of safety and excise shall co-operate in the execution
of such detention procedures as may be necessary, and shall assume custodial
supervision of persons detained under the provisions of Section 735.1-2
and shall supply such personal restraints as may be necessary to effectuate
the purposes thereof. (Sec. 2, Ord. 423, Series 1955) |
| [47] | .2-2. Police Department. Officers of the police department of the city
and county shall furnish to the department of health and hospitals information
pertinent to the enforcement of the provisions of Section 735.1. Police
officers shall have authority to detain suspected persons in the categories
enumerated in Section 735.1-1(1) for health purposes in jail in accordance
with the procedure set forth in Section 735.1-2 for examination and treatment
by the department of health and hospitals under the provisions of Sections
735.1-3 and.1-4. Police officers shall have authority to order suspected
persons in the categories enumerated in Section 735.1-1(2) and in the categories
enumerated in Section 735.1-1(1) who are not detained in jail to report
to the department of health and hospitals for examination and treatment
at the direction of the manager of health and hospitals or his authorized
representative in accordance with the provisions of Section 735.1-5. They
shall also have authority to order persons to report to the department of
health and hospitals for examination and treatment, as aforesaid, who have
been held for investigation of offenses of the types enumerated in Section
735.1-1(1) and who have been released without charges having been filed
and similarly persons who have been acquitted of any such charges and other
suspected persons who have been released on bond. (Sec. 2, Ord. 423, Series
1955) |
| [48] | .2-3. Violations. It shall be unlawful to refuse to submit to examination
or treatment under an order as hereinabove provided or to violate any order
of detention or to refuse to obey any order requiring submittal to examination
and treatment at the department of health and hospitals. (Sec. 2, Ord. 423,
Series 1955) |
| [49] | Disposition |
| [50] | Affirmed. |
| [51] | LEWIS, Chief Judge, concurring: |
| [52] | I concur but consider it appropriate to emphasize or reemphasize the limited
posture of the case within which the issues are both presented to the court
and determined by our decision. |
| [53] | This is not a medical practice case. As a consequence we do not consider
and certainly do not determine that the giving of a curative drug for a
venereal disease not diagnosed as existent is acceptable medical practice.
Nor do we, in holding that the subject ordinance is neither unconstitutional
on its face nor unconstitutionally applied to appellant, hold that the ordinance
is constitutional in toto. A statute is not unconstitutional on its face
if objectionable features are clearly severable or if its contained language
can be reasonably interpreted to project a constitutionally accepted standard. |
| [54] | In the case at bar we are concerned only with the self-imposed plight
of a prostitute and the admitted occupational hazard of venereal disease
to her and through her to the community. We do not hold that a vagrant is
similarly situated nor are we required, at this time, to spell out the limitations,
if any, that the word "suspicion" may have as a legal standard.
Sufficient cause existed in this case for the authorities to consider appellant
to be a probable health hazard to the community. |
|
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| Judges Footnotes | |
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| [55] | *fn* Honorable Warren L. Jones, Senior
Circuit Judge, United States Court of Appeals for the Fifth Circuit, sitting
by designation. |
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