Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 72 H 298--Allen Sharp, Judge.
Before Pell, Circuit Judge, Skelton, Senior Judge,*fn* and Wood, Circuit Judge.
Plaintiff Julie Dommer was arrested on a warrant by an officer of the Gary, Indiana, police department and incarcerated in the Gary city jail. The record does not show why she was arrested nor how long she remained in jail. After she was placed in jail, she filed this suit individually and as a class action on behalf of all others similarly situated on the 21st day of November, 1972. She named as defendants, individually and as officers, the mayor, chief of police, members of the Board of Health, the city judge, members of the Board of Public Works, members of the City Council, the warden of the jail, all of whom were officials of Gary, Indiana, and the members of the Indiana State Board of Health who were later dismissed from the case.
In her original complaint the plaintiff's only alleged grievance was that the food served to the inmates in the jail was so bad that it was cruel and unusual punishment under the Constitution to require it to be eaten by her and the other jail prisoners. She asked for a declaratory judgment and injunctive relief under 42 U.S.C. 1983.
The plaintiff filed a second amended complaint on the 25th day of March, 1974, in which she included a second count to the effect that the conditions in the jail were unhealthy and unsanitary and that this was cruel and unusual punishment imposed on the jail prisoners by defendants. She asked for declaratory judgment and injunctive relief regarding these alleged conditions.
The plaintiff also added a third count in which she alleged that an unlawful practice had been engaged in by the Gary, Indiana, police department and Gary police officers in arresting individuals on suspicion and holding them in jail for investigation longer than 24 hours without taking them before a magistrate for a determination of whether the police had probable cause to hold them, all contrary to the state laws of Indiana. The plaintiffs asked for a declaratory judgment and injunctive relief as to this third count. The plaintiffs also asked for damages. This damage claim was later abandoned. In this amended complaint, the plaintiff included four additional plaintiffs, namely, Carl Kalbrunner, Claude McGuire, Ronald Fields and Dwayne Amos (later dismissed on his motion). She also named the following officials as additional defendants: the cook of the Gary city jail, the acting Health Commissioner of Gary, the Gary Building Commissioner, the Gary Commissioner of the Police Civil Service Commission, members of the Gary Police Civil Service Commission, the Gary Board of Public Safety, the City of Gary, unknown Gary police officers X, Y, and Z, and the Chief Judge of the Criminal Division of the Lake County Superior Court.
By admission of facts, it was proven that dozens of people were arrested by the Gary police and held by them in jail longer than 24 hours without a hearing before a magistrate to determine probable cause for their detention, contrary to the laws of Indiana.
The plaintiffs moved for a partial summary judgment on the third count of their petition, which was granted by the court in an order of July 25, 1975, which was supplemented by the court's order of March 7, 1977. See Dommer v. Hatcher, 427 F. Supp. 1040 (N.D.Ind.1977). The court granted all the relief requested by the plaintiffs and in his orders, he tracked, re-enacted, re-codified, and interpreted the laws of the State of Indiana, which all parties, as well as the court, agree, as fully discussed below, cover the complaint of the plaintiffs now before the court. It is clear that had these Indiana laws been invoked in the state courts of Indiana they would have afforded the plaintiffs adequate, complete and sufficient relief for their grievance now before us in this case, namely, their complaint that the police of Gary were arresting people without a warrant and holding them in the city jail more than 24 hours without a hearing to determine whether probable cause existed to detain them, all contrary to the laws of Indiana.
The plaintiffs agree in their brief herein that Indiana laws are adequate in providing that a person arrested by the police must be taken before a magistrate by the police within 24 hours for a determination of probable cause for the issuance of a warrant for his arrest and that without such a determination and the issuance of a warrant the detention becomes unlawful. In this regard, the brief of plaintiffs states:
"The district court in the instant case had no cause to delay its decision to await legislative action, for the Indiana legislature had already spoken:
... Whenever an information is filed and the defendant has already been arrested or otherwise brought within the custody of the court, the court shall proceed to determine whether probable cause existed for the arrest of the defendant unless the issue of probable cause has previously been determined by a court issuing a warrant for the defendant's arrest or by a court holding a preliminary hearing after the defendant's arrest.
I.C. 35-3.1-1-1(d), Ind.Stat. § 9-903(d) (1971).
Whenever any arrest has been made by any member of such police force, it shall be the duty of the officer making the arrest forthwith to bring the person arrested before the city court, or court having jurisdiction of the offense, to be dealt with according to law. If the arrest is made during the hours when such court is not in session, or if the judge is not holding court, such offender shall be detained in the city prison until there shall be an opportunity for such hearing at the earliest practicable time, or until he shall have given bond for his appearance. But no person shall be so detained longer than twenty-four (24) hours without such examination, except where Sunday intervenes, in which case no person shall be detained longer than forty-eight (48) hours ...
I.C. 18-1-11-8, Ind.Stat. § 48-6112 (1905). The defendant prosecutor unquestionably finds this statute relevant, admitting in his February, 1975 Motion to Dismiss that:
... the law guarantees that an independent magistrate review the basis for detaining anyone for longer than a 24-hour period; Ind.Ann.Stat. 48-6112 (Burns 1974 Supp.) Absent such a determination and the issuance of a warrant detention of a citizen becomes unlawful. Id. at page 3."
By quoting the foregoing Indiana statutes along with comments relating to the adequacy of such state laws to cover the present complaint of plaintiffs, they admit that they have a plain, adequate and complete remedy for their grievance under Indiana laws. Furthermore, the plaintiffs affirmatively state that the courts of Indiana enforce these laws, saying in their brief:
"The Indiana courts had also prescribed that a prompt finding of probable cause by a neutral magistrate was required for detention. Williams v. State, 264 Ind. 664, 348 N.E.2d 623 (Ind.) (1976); Montes v. State, 263 Ind. 390, 332 N.E.2d 786 (Ind.) (1975); State ex rel. French v. Hendricks Superior Court, 252 Ind. 213, 247 N.E.2d 519 (Ind.) (1969); Kinnaird v. State, 251 Ind. 506, 242 N.E.2d 500 (Ind.) (1968); Nacoff v. State, 256 Ind. 97, 267 N.E.2d 165 (Ind.) (1971), where it was held that an arrestee should be taken promptly before a magistrate, pursuant to I.C. 18-1-11-8 (within twenty-four hours), to
... (1) Advise the arrestee of the charges against him; (2) Advise the arrestee of his constitutional rights; (3) Provide arrestee with an attorney if arrestee was without funds to hire one; (4) Determine whether there is sufficient evidence that the crime charged has been committed and that the accused committed it...
Id. at 168. Indiana law is thus quite clear on the subject of probable cause determinations..."
Notwithstanding these admissions by the plaintiffs that they had a plain, adequate and complete remedy under the laws of Indiana, which laws are enforced by the courts of that state, they did not file a single lawsuit in the Indiana state courts for a redress of their grievances.
The district judge recognized in his decision herein that the laws of Indiana required the arresting officer to take an arrested person before a magistrate within 24 hours for a determination of probable cause for his arrest and detention or release and that the courts of Indiana enforce these laws in cases filed in the state courts. In this regard he stated:
"Indiana laws allow its police to make warrantless arrests, but its statutes and judicial interpretations make clear that the arrest must be reviewed by a magistrate for probable cause. If the magistrate finds probable cause for arrest, a lawful arrest warrant may issue, if the magistrate does not find probable cause, the defendant is to be released. This was the holding of the Indiana Supreme Court in State ex rel. French v. Hendricks Superior Court, 252 Ind. 213, 247 N.E.2d 519 (1969). See also Kinnaird v. State, 251 Ind. 506, 242 N.E.2d 500, 506 (1968). ("A judicial determination is a requirement that goes to the heart of the Fourth Amendment.")
"In addition to the case law cited above, Indiana statutes also require the police to bring persons arrested without a warrant before a magistrate and submit evidence to justify the issuance of an arrest warrant. The Indiana Supreme Court in Nacoff v. State, 256 Ind. 97, 267 N.E.2d 165 (1971), held that the arrestee should have been taken promptly before the magistrate:
Appellant was held absolutely incommunicado for the four and a half days prior to his giving the statement. Appellant was not taken promptly before a magistrate as required by law. I.C. 1971, 35-1-7-1; 35-1-8-1; 35-1-1-1; 9-1-1-130; 18-1-11-8; 18-4-12-16; being Burns §§ 9-701, 9-704; 9-704a, 47-2307; 48-6112; 48-9416; Pearman v. State (1954), 233 Ind. 111, 117 N.E.2d 362 .
"The court then outlined what Indiana law requires at the initial appearance before a magistrate:
The purpose of this hearing before a magistrate is threefold: (1) Advise the arrestee of the charges against him; (2) Advise the arrestee of his constitutional rights; (3) Provide arrestee with an attorney if arrestee was without funds to hire one; (4) Determine whether there is sufficient evidence that the crime charged has been committed and that the accused committed it ...
The district judge proceeded on July 25, 1975, to enter a declaratory judgment and mandatory injunction on plaintiffs' count III*fn1 in which he stated:
"The defendant's practice of arresting individuals on "suspicion' or "for investigation' and holding them for periods in excess of twenty-four (24) hours without an initial appearance before a magistrate deprives the plaintiffs of rights guaranteed by the Fourth Amendment of the United States Constitution, Article 1, § 11 of the Indiana Constitution, and Indiana Statutes: I.C. 1971, 35-1-7-1; 35-1-8-1; 35-31-1-1(d); 35-4-1-1; 9-4-1-130; 18-1-11-8; 18-4-12-16; being Burns §§ 9-701, 9-704; 9-704a; 9-903(d); 47-2307; 48-6112; 48-9416."
The district court then issued the following mandatory injunction as a part of his decision:
"Defendants, their successors in office, agents and employees are ordered, within thirty (30) days:
A) To implement the following procedures for assuring that the plaintiffs and the class they represent will be afforded an initial appearance before a magistrate within twenty-four (24) hours of arrest where the detainee must be informed of his constitutional rights and a probable cause determination made by the magistrate.
1. Initial Appearance Before a Magistrate. An officer making an arrest under a warrant or an arrest without a warrant shall (pursuant to Indiana's Constitution and Statutes, and the United States Constitution) take the arrested person without unnecessary delay before a judicial magistrate. If the arrest is made during the hours the court is not in session, the arrestee shall be admitted to bail at the police station or detained until there shall be an opportunity for such hearing at the earliest practicable time, or until he shall have given bond for his appearance. But no person shall be detained longer than twenty-four (24) hours without such examination, except where Sunday intervenes, in which case no person shall be detained longer than forty-eight (48) hours.
2. Probable Cause Determination by the Magistrate. Upon the arrestee's initial appearance the magistrate shall inform him of the charge and provide him with a written copy thereof. The magistrate must further determine whether there is sufficient evidence that the crime charged has been committed and that the accused committed it. If from the evidence the magistrate determines that there is probable cause for the arrest, he ...