Immunity Denial Upheld in Corpse-Abuse Case

     CINCINNATI (CN) - A federal judge properly denied immunity to officials who allegedly turned a blind eye to a morgue worker's sexual abuse of corpses, the 6th Circuit ruled.
     Kenneth Douglas was convicted of gross abuse of a corpse after 2007 DNA testing confirmed his semen matched evidence found in several corpses held in the Hamilton County, Ohio, Morgue in the 1980s and 1990s.
     Douglas routinely drank, smoked marijuana and used cocaine while working alone at the morgue, and was described by an expert witness as "opportunistic necrophile" whose substance abuse was a "major contributing factor to his sexual abuse of corpses."
     The families of several murdered young women whose bodies Douglas abused in the morgue filed suit in Cincinnati against Douglas, Hamilton County, the coroner and the morgue supervisor, both of whom died as the cases advanced.
     Bernard Kersker, the late morgue director, allegedly refused to fire Douglas even though he had problems getting to work on time and was forced to take vacation days after being incarcerated.
     The 6th Circuit's Friday ruling paraphrases testimony from Douglas that "his cocaine addiction was so bad by 1992 that he could not perform his job duties because of heavy shaking."
     Douglas' ex-wife meanwhile testified that she repeatedly called the morgue and spoke to Kersker about her husband's drinking problem and his propensity to have sex with other women at the morgue. She said Kersker would tell her to stop calling and then hang up.
     A federal judge in Cincinnati denied the county defendants summary judgment based on statutory immunity but dismissed the plaintiffs' due process claims.
     The latest set of appeals dealt only with an appeal for immunity by Hamilton County, Kersker's estate and the estate of the coroner, Dr. Frank Cleveland.
     In affirming denial of immunity to the trio Friday, a 6th Circuit panel emphasized that the "record contains facts from which a jury could conclude that Hamilton County employees were not engaged in policy-making or planning but were instead making factual, employee-specific decisions."
     "Such facts include detailed decisions about: what shift to assign to Douglas; whether to administer drug tests to him; how to respond to Douglas's continuing tardiness and dependability problems; whether to make unannounced visits while Douglas was alone at the morgue; whether to confront Douglas or change the level of supervision after his wife called to complain about alcohol and sex at the morgue; whether to supervise Douglas differently after Douglas told Kersker about his DUI and suicide attempt; and whether to look into Chavis's allegations that some of the other employees were doing drugs," Judge Jane Stranch wrote for the court. "These specific, fact-based single employee decisions do not involve discretionary acts of an employee with respect to policy-making, planning, or the kind of 'creative exercise of political judgment' required for the (A)(3) defense."
     The court also refused to apply Section 2744.03(A)(5) of the Ohio code, governing whether a government employee has acted in a "wanton or reckless manner."
     "A jury could ... find that Kersker knew Douglas presented a risk of harm to the bodies - Kersker admitted that one of the risks of a morgue attendant being drunk on the job is that he might disrespect or harm the bodies," Stranch wrote "And there is no question that Kersker failed to mitigate any risk. He kept Douglas on shifts where Douglas would be alone several days a week, he never administered drug tests or installed cameras, and there is evidence to suggest that he maintained a very lax environment in which other employees also had enough freedom to drink, do drugs and have visitors."
     The families meanwhile failed to have the court revive their due-process claims based on the allegation that Kersker and Cleveland acted "with deliberate indifference to a known risk that Douglas would harm the bodies and that this 'shocks the conscience.'"
     "We are not convinced by plaintiffs' argument that 'any touching' of the bodies without a forensic purpose amounts to a 'serious harm' in the constitutional sense," Stranch wrote. "If a drunk person moves a dead body's arm, it may amount to inappropriate behavior or even a tort violation. If done intentionally by a government actor, it's even arguable that it's a constitutional violation. ... But we cannot say that protection against the possible risk of such an occurrence is 'so rooted in the traditions and conscience of our people as to be ranked as fundamental."
     The state-law claims are remanded to the trial court for further proceedings.