Polk County in western Wisconsin is back on the hook for $4 million in damages a jury awarded to two women who were repeatedly sexually assaulted by a guard over the course of three years at the county’s jail.
The full U.S. 7th Circuit Court of Appeals reversed a 2-1 decision by a panel of its judges last year that threw out the county’s responsibility, preserving only the damage awards against the former guard, Darryl Christensen, who is serving a 30-year prison sentence for the assaults.
In the latest decision, the court found that 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” to the women.
Judge Michael Scudder, who had dissented in the original 2-1 panel decision, wrote the majority opinion. He was appointed to the court in 2018 by President Donald Trump.
He again explained how the jury was within its bounds to find that the county failed to take sexual assault in the jail seriously enough, failed to adequately train both staff and inmates about the issue, or provide a “safe and confidential” way for inmates to report abuse.
While there may not have been a long-standing pattern of sexual abuse in the jail prior to Christensen’s actions, Scudder found, the county still had notice of the potential because another guard had been disciplined for inappropriate behavior toward a female inmate.
“Polk County could not, knowing all that it did about the risk within its jailhouse walls, dispatch male guards to stand watch over its female inmates equipped with nothing more than a piece of paper with a flat instruction not to abuse those under their care,” Scudder wrote.
“The jury had enough to conclude that Polk County deliberately chose a path of inaction when that option was off the table.”
The 103-page decision featured a 61-page dissent by Judge Michael Brennan, who wrote the majority opinion in the 2-1 panel decision in favor of the county last year.
“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,” Brennan wrote.
He said that hits governments with vicarious liability for their employees, in violation of U.S. Supreme Court precedent.
Brennan, of Milwaukee, was also appointed to the 7th Circuit last year by Trump. He was joined in the dissent by fellow Wisconsin Judge Diane Sykes, and Judge William Bauer.
Judge Frank Easterbrook wrote a separate, much shorter dissent.
Christensen had sex with the two women dozens of times between 2011 and 2014, always taking great care to arrange to be hidden from the view of other staff and inmates, and convincing the women not to report the encounters.
He was only caught when a former inmate revealed her own sexual relations with Christensen to an investigator in another county, who alerted Polk County officials who launched an investigation. Christensen resigned and later pleaded guilty to five counts of second-degree sexual assault by a corrections officer.
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