CHICAGO (CN) — In a 7-4 en banc ruling, Seventh Circuit found a Wisconsin county liable for failing to supervise a male guard in charge of female inmates, allowing him to sexually assault five women hundreds of times over three years.
Darryl Christensen, a former Polk County jailer, was convicted in 2016 of sexually assaulting five female inmates hundreds of times over a three-year period.
Two of his victims, identified as J.K.J. and M.J.J., sued Christensen and Polk County over the assaults in federal court.
The complaint claimed the county sheriff’s department was indifferent to the risk of assault because it allowed one male officer with the ability to prevent the entrance of other jailers to supervise female inmates in areas without cameras. The county also deliberately chose not to accept state training materials regarding sexual assault in jails.
A jury awarded the women $11.5 million in compensatory and punitive damages, of which the county was responsible for paying $4 million. Given that Christensen was sentenced to 30 years in prison for his conduct, this figure is the only part of the award the women will ever possibly receive.
But last June, a divided three-judge panel of the Seventh Circuit reversed the ruling against the county, holding that it could not be held accountable for the actions of a “rogue guard” who knew that he was violating jail policy, his training and the law.
After a vote, the Chicago-based appeals court agreed to rehear the case en banc, and it upheld the jury’s verdict in a 33-page ruling released Friday.
“Darryl Christensen’s long-term abuse of J.K.J. and M.J.J. more than justified the jury’s verdict against him. And the jury was furnished with sufficient evidence to hold Polk County liable not on the basis of Christensen’s horrific acts but rather the county’s own deliberate choice to stand idly by while the female inmates under its care were exposed to an unmistakable risk that they would be sexually assaulted — a choice that was the moving force behind the harm inflicted on J.K.J. and M.J.J.,” U.S. Circuit Judge Michael Scudder wrote for the full court’s majority.
Scudder, a Donald Trump appointee, served on the three-judge panel and dissented from the now-vacated panel opinion in favor of the county.
Based on the evidence presented at trial, “the jury was entitled to conclude that if Polk County had taken action in response to the glaring risk that its female inmates’ health and safety were in danger, J.K.J. and M.J.J.’s assaults would have stopped sooner, or never happened at all,” Scudder said.
His opinion was joined by U.S. Circuit Judges Diane Wood, Michael Kanne, Ilana Rovner, David Hamilton, Amy Barrett and Amy St. Eve.
U.S. Circuit Judge Michael Brennan, another Trump appointee who authored the original opinion, wrote a blistering 62-page dissent, and was joined by U.S. Circuit Judges Diane Sykes and William Bauer, appointed by George W. Bush and Gerald Ford, respectively.
“Under the majority opinion, a single subordinate employee may secretly override municipal policy and create a new policy under which that public employer is accountable. That is vicarious liability, a collapse into respondeat superior against which the Supreme Court has repeatedly warned for 60 years,” Brennan said.
He added, “By stepping out and recognizing fault and causation on these facts, this decision departs from Supreme Court precedents, imports a negligence standard into the law of deliberate indifference, permits federal encroachment into an area of traditional state authority, and splits with other federal circuits.”