A federal lawsuit has been filed alleging that the Hamilton County Jail has a policy of shackling all female prisoners during labor, delivery and postpartum with no exceptions for non-violent prisoners.
Attorney Chris Clem said, "Hamilton County is now the defendant in a lawsuit that seeks to declare the shackling of non-violent prisoners during labor, delivery and postpartum as cruel and inhuman and a violation of civil rights.
"The complaint demands that the Hamilton County Jail change its policy of shackling all non-violent prisoners during labor, delivery and postpartum. When a non-violent female prisoner starts her labor she is transported to Erlanger with two armed guards. The two armed guards stay at her side the entire time. Non-violent female prisoners who are in labor, dilated and giving birth are in no condition to overpower the two armed male security guards. Accordingly, shackling of prisoners during this time serves no purpose.
"It is extremely dangerous to the female prisoner and to the unborn child to have her arms and legs shackled to a bed during this time."
The suit says:
1. Each of the defendants knew and disregarded the substantial risk of harm posed by shackling plaintiff during labor and postpartum.
2. Shackling increased the risk of injury to both plaintiff and her unborn child.
3. Defendants subjected plaintiff to unnecessary pain and suffering by shackling her when labor started, when she first became dialated, when her water broke and during postpartum.
4. Shackling a woman after her water has broken is extremely dangerous because of a potential for umbilical cord prolapse.
5. Shackling a woman after her water has broken is extremely dangerous because once a woman’s membranes have ruptured a cervical exam should be performed as soon as possible for potential umbilical cord prolapse.
6. Shackling a woman after labor has begun is extremely dangerous because a proper cervical exam and monitoring cannot be conducted while shackled.
7. Shackling may restrict or delay the ability to provide emergency medical care.
8. Shackling restricts and prevents medical personnel from having constant and unrestricted access to a woman in labor for complications that can occur, including but not limited to, a non-reassuring fetal heart tracing.
9. Shackling restricts and prevents a woman in labor from being able to move to her left lateral decubitus position to increase blood flow the baby.
10. Shackling restricts and prevents a woman in labor from being able to freely move and walk as often as possible to reduce risk of blood clots.
11. Shackling a woman in labor and postpartum enhances the risk of injury to both woman and child because a woman should have full range of movement of limbs and ambulatory because of pain.
12. Shackling a woman during labor, delivery and postpartum is extremely unsanitary.
13. The stress plaintiff was placed under by shackling her increased the risk of injury to her and her unborn child.
14. Because plaintiff’s legs were shackled in the ambulance she could not move or open her legs and faced the terror that her baby might die if the delivery occurred in the ambulance.
The complaint "demands that Hamilton County change this policy in the same way that Nashville was ordered to change its policy."
Attorney Clem said a similar case occurred in Nashville last year. He said, "However, Hamilton County has declined to follow the example established in Nashville."
He said in 2013 a federal judge found that Nashville’s policy of shackling non-violent pregnant prisoners during labor, delivery and post delivery was cruel and inhuman treatment. Villegas vs. Nashville, 709 F.3d 563 (6th Cir. 2013).
Attorney Clem said, "Ms. Villegas was stopped and failed to produce a valid driver’s license. There was no evidence she was danger to herself, others or a flight risk. She appeared to be an undocumented alien. She was pregnant and remained imprisoned until she informed a guard that she was about to have her baby. For transportation, Villega was placed on a stretcher with her wrists handcuffed in front of her body and her legs restrained together. At the hospital, the handcuffs were removed, but one of Villega’s legs remained shackled to the stretcher before and after the birth. In her suit under 42 U.S.C. 1983, the district court granted summary judgment on her shackling and denial-of-breast-pump claims; a jury awarded $200,000.
"The 6th Circuit Court of Appeals agreed that the procedure of shackling female prisoners during labor, delivery and post-deliver is cruel and in human when it reviewed the case and held:
First, the shackling of pregnant detainees while in labor offends contemporary standards of human decency such that the practice violates the Eighth Amendment's prohibition against the “unnecessary and wanton infliction of pain”—i.e., it poses a substantial risk of serious harm. See Gamble, 429 U.S. at 104, 97 S.Ct. 285. The universal consensus from the courts to have addressed this issue as well as the chorus of prominent organizations condemning the practice demonstrates that, without any extenuating circumstances, shackling women during labor runs afoul of the protections of the Eighth Amendment.
Villegas vs. Nashville, 709 F.3d 563 (6th Cir. 2013).
The 6th Circuit in Villegas vs. Nashville, 709 F.3d 563 (6th Cir. 2013) noted the following:
1. In its Standard Minimum Rules for the Treatment of Prisoners, the United Nations stated that restraints including handcuffs and leg irons should only be used “[a]s a precaution against escape,” “[o]n medical grounds by direction of the medical officer,” or “if other methods of control fail, in order to prevent a prisoner from injuring himself or others or from damaging property.” E.S.C. Res. 663 C (XXIV) (July 31, 1957), 2076 (LXII) (May 13, 1977), at Rule 33, available at http:// www 2. ohchr. org/ english/ law/ treatment prisoners. htm.
2. With respect to pregnant detainees, the American Medical Association has passed a resolution that provides:
No restraints of any kind shall be used on an inmate who is in labor, delivering her baby or recuperating from the delivery unless there are compelling grounds to believe that the inmate presents:
An immediate and serious threat of harm to herself, staff or others; or A substantial flight risk and cannot be reasonably contained by other means.
Am. Med. Ass'n, “Shackling of Pregnant Women in Labor,” Policy H–420.957 (June 2010), available at https:// ssl 3. ama- assn. org/ apps/ ecomm/ Policy Finder Form. pl? site = www. ama- assn. org& uri=% 2Fresources% 2Fdoc% 2FPolicy Finder% 2Fpolicyfiles% 2FHnE% 2FH–420.957.htm.
3. Also with respect to pregnant detainees, the American College of Obstetricians and Gynecologists found:
Physical restraints have interfered with the ability of physicians to safely practice medicine by reducing their ability to assess and evaluate the physical condition of the mother and the fetus, and have similarly made the labor and delivery process more difficult than it needs to be; thus, overall putting the health and lives of the women and unborn children at risk....
The practice of shackling an incarcerated woman in labor may not only compromise her health care but is demeaning and unnecessary.... Testimonials from incarcerated women who went through labor with shackles confirm the emotional distress and the physical pain caused by the restraints. Women describe the inability to move to allay the pains of labor, the bruising caused by chain belts across the abdomen, and the deeply felt loss of dignity.
Letter from Ralph Hale, Exec. Dir., Am. Coll. of Obstetricians & Gynecologists, to Malika Saada Saar, Exec. Dir., The Rebecca Project for Human Rights (Jun. 12, 2007).
4. Finally, Amnesty International has formulated a policy directive that states, in relevant part:
Routine use of restraints on pregnant women is cruel, inhumane and degrading treatment, and given medical and other factors impeding pregnant or birthing women from attempting escape or becoming violent, the presumption must be that no restraints should be applied....
All Departments of Corrections should have an explicit policy dealing with the use of restraints on pregnant women. The following principles should be incorporated into such a policy:
Leg irons, shackles, belly chains or handcuffs behind the body may not be used at any time during pregnancy.
For pregnant women in the third trimester no restraints may be applied, including during transportation.
Under no circumstances may restraints of any kind may [ (sic) ] be used on a woman in labor or while she is giving birth. ...
No restraints should be applied while a woman remains in the hospital during recovery....
Amnesty Int'l USA, “Use of Restraints on Pregnant Women in the USA: Policy Guidelines” (2009). However, as the United Nations and American Medical Association recognize, Amnesty International's policy also recognizes that there may be “rare instances” that deviations may be warranted—specifically, “where there are serious and imminent grounds to believe that a woman may attempt to harm herself or others or presents a credible risk of escape that cannot be contained through other methods.” Id.
Villegas vs. Nashville, 709 F.3d 563 (6th Cir. 2013)