On June 2, 2012, Nicole Guerrero was arrested by the Wichita Falls Police Department for a possession charge. At the time of her arrest, Nicole was five months pregnant; a fact that was confirmed by Dr. Ghanbar, OBGYN, on June 11, 2012 in an appointment during which the baby’s heartbeat was heard and Nicole’s stomach was measured. Transported back to Wichita County Jail with iron tablets and antibiotics used to treat a vaginal infection, Nicole was assured that her baby was fine. Less than twenty-four hours later, however, Myrah Arianna Guerrero¹, Nicole’s baby, would be pronounced dead.
Between approximately 6:00pm on June 11th and 6:30am on June 12th, Nicole was forced to endure labor alone, complete with intense rectal pressure and emotional distress accompanied by screams and pleadings for help that were ignored for hours. After being advised that she was not experiencing labor pains, after finally being spoken to by jail staff, a heavily bleeding Nicole was ignored for several more hours despite constant cries for help. It wasn’t until a detention officer noticed a nude Nicole begging for someone to check her vaginal opening for signs of her baby’s head that any sort of “help” would arrive. Shortly after, Nicole gave birth to a dark purple baby with her umbilical cord wrapped around her neck.
Until an ambulance arrived, none of the jail staff present attempted to perform CPR on the unresponsive baby. Nicole, who remained in the “cage”, an infirmary cell furnished with nothing but a mat on a cold, cement floor, while EMTs took her baby to United Regional Healthcare Services (URHS), delivered her placenta until she, too, was transported to URHS. “I can’t even tell you what she looked like,” Guerrero said. “I already knew she was gone.”²
Nicole and Myrah’s story is not rare. In fact, some jails are notorious for their treatment of pregnant women, their unborn, viable³ children, and incarcerated people in general.
In Milwaukee, Rebecca Terry informed jail staff that she was beginning to experience labor pains during booking and was transported to a local hospital: while shackled. During transport, Rebecca was shackled at the legs, wrist, and belly. In the hospital, she was shackled at the legs and waist. Following her medical examination the jail was informed that she was in labor but able to return to jail. Shackled in leg irons, wrist restraints, and a belly-chain she was brought back to the jail and detained in an “extremely dirty” cell that contained a “filthy sink, toilet, and floor” in an infirmary cell. When her labor pains became more frequent and more painful, she pushed the emergency button in her cell to alert jail staff that she was in need of assistance. After intensified labor pains and vomiting, her water broke and she began to scream for help. Even though, according to court documents, the nearest Corrections Officer was a few yards away she continued to be ignored. When help refused to arrive, Rebecca started to push, screaming to jail staff outside that she had done so. Three hours later, Rebecca’s baby was born: blue in the face and choking. It wasn’t until after three hours of screaming and painful labor that the Corrections Officer entered the blood-covered cell, refused to cut the umbilical cord, and called for the assistance of the emergency medical staff. With the baby’s head wrapped in bloody paper towels, medical staff transported Rebecca and her baby to Sinai Hospital, shackled.
Two years later, in the same jail, Shade Swayzer went into labor and was ignored by jail staff for hours as she wept, screamed, and bled, finally giving birth to baby Laliah. It wasn’t until two hours after the multiple hour, grueling labor that jail staff even realized that she’d actually given birth. Shortly afterward, unfortunately, Laliah was pronounced dead.
In Reproductive Negligence, Dov Fox outlines different types of negligence that ought to be given greater consideration in tort law: those that involve harms suffered by parents in the process of planning to prevent or begin the process of procreation. At the very least, Fox argues, there ought to be a more inclusive conceptualization of negligence and harm when it comes to reproductive justice. While typical cases involve “mishandling sperm, eggs or embryos that infertile patients froze for the purpose of later using to have children” or, more generally, “[depriving] people of the chance for wanted pregnancy or parenting”, I argue that cases involving harms suffered by carrying parents and their unborn children are 1) worthy of legal protection from unreasonable risk of harm to the carrying parent of unborn child and also 2) represent a violation of 42 U.S.C. § 1983. In the case of Rebecca, I would argue that her suffering, a result of the lack of competent, basic care during labor and delivery represents a type of injury worthy of legal protection on the grounds of her right to negligence-free medical care. Beyond the potential for irreversible or harmful postnatal effects suffered by the baby, and postpartum effects suffered by Rebecca, as a result of misconduct on the part of medical or jail staff, the disruption of family planning, Rebecca’s right as a carrying parent to direct the process of procreation, as ought to be granted given her parental right, was affected as a result given the traumatic labor and delivery. In other words, state interference in each case led to the disruption of the mother’s ability to exercise her parental rights.
Dov Fox argues that harms generated as a result of professional misconduct and/or negligence have “outpaced the law’s ability or willingness to police them,” (Fox, 210). By accommodating a wider range of policing-worthy harms and injuries, reproductive justice issues granted legitimacy could become more inclusive and professional misconduct and negligence could be deterred more efficiently and effectively in tort law. Recognition of the harms and injuries sustained in cases like these, alone, could offer more opportunities to grant justice to historically ignored victims. As Dov points out, “control over decisions about procreation” ought to be valued for the sake of autonomy and well-being.º
Victims like Nicole, Rebecca, Shade, and their unborn children sometimesª attempt to argue that jails, prisons, or hospitals they gave birth in, or suffered cruel and unusual circumstances in, are liable. I will explore these cases, and other like them, in detail and in a broader historic context in future articles but here I will focus on this select few, in brief.
In November 2017, Chris Rickerd, policy counsel at the American Civil Liberties Union’s National Political Advocacy Department, penned a letter to Scott L. Shuchart, Senior Advisor for the Office for Civil Rights & Civil Liberties Department of Homeland Security, outlining the ACLU’s deep concerns about the “287(g) [Immigration Enforcement] program generally, and the immediate prospect of expanding the program to 24 additional jurisdictions”. He argues that the 1) “costs of enmeshing local law enforcement agencies in the business of federal civil immigration enforcement far outweigh the benefits” and 2) “proposed jurisdictions discussed in [his] letter have records demonstrating that they are unable to assume this responsibility [of program expansion] without constitutional and civil rights violations”. Of the jurisdictions discussed, one stands out for the intents and purposes of my project: Milwaukee, Wisconsin. Rickerd states that “the Sheriff’s Department’s history of failure to comply with constitutional guarantees for the treatment of persons arrested and detained in Milwaukee County is well established” and supports that claim by detailing a number of incidents that render the facility “a troubled jail where serious staffing shortages have resulted in years of ongoing civil rights violations and several recent deaths and injuries.” In addition to citing the fact that “Milwaukee County was found in contempt of court for more than 16,000 intentional violations of the consent decree over a 29 month period” in 2006, Rickerd also makes note of the numerous deaths and injuries that took place in the jail including those of Rebecca Terry and Laliah Swayzer. The “troubled and dangerous” jail also lost Sheriff David A. Clarke, by way of resignation; the Sheriff who served as plaintiff in the United States District Court, of the Eastern District of Wisconsin, in the cases concerning the treatment of pregnant inmates not limited to those mentioned above. While Milwaukee County Jail (MCJ) has a “ history of troubling treatment of pregnant women in the jail”, there are others that do as well whose history has not received the same attention as Milwaukee.
The attention given to MCJ’s treatment of pregnant women is due in part to a series of legal actions against the MCJ. Estate of Laliah Swayzer et al v. Clarke, Hall v. County of Milwaukee, and Terry v. County of Milwaukee are lawsuits against Milwaukee County that shed light on the treatment of pregnant women in the jail. Further, “Hall’s suit, filed on March 14, 2017, has been granted class-action status when 40 other former prisoners joined, claiming they had also been shackled while pregnant.”
Most recently, Mohrbacher et al v. Alameda County Sheriff’s Office et al addresses claims made against guards of a California jail. Plaintiffs Erin Ellis, Kelsey Erwin, Dominique Jackson, Jaclyn Mohrbacher, Alexis Wah, and Christina Zepeda allege that employees of the Santa Rita Jail (SRJ) engaged in abusive practices that led to miscarriages, constantly coerced pregnant inmates to have abortions, and even forced one of the plaintiffs give to birth alone in solitary confinement. Alameda County officials say that the defendants will fight all charges and deny allegations. “If you are complaining of problems and you’re not feeling well, the general response is you’re just doing drugs we’re going to be put you in solitary confinement,” claims Yolanda Huang, the attorney representing Jaclyn Mohrbacher. In another case, a month earlier, Huang represented Cynthia N. Turano who was initially placed in a cell with dried blood and “fecal matter spread over the walls and bench”, transferred to another cell dried, unidentified fluids on the walls and rotting food on the benches, falsely informed that she would be treated by a nurse that she requested, denied menstrual hygiene products after informing jail staff of her need, and denied a change of clothes when her menstrual blood covered her pants (4:17-cv-06953-KAW). Like Mohrbacher et al v. Alameda County Sheriff’s Office et al, this case is still in the process of proceedings. Like MCJ, SRJ also has a history of other troubling incidents that led to legal action. In Petrov v. Alameda County, it was alleged that instead of arresting Stanislav Petrov, the defendants Santamaria and Wieber, Alameda County Sheriff’s deputies, allegedly began to viciously beat him with steel batons on his head, neck, back, hands, and elsewhere on his body (4:16-cv-04323-YGR). “The deputies were caught on surveillance video striking Petrov more than 40 times with steel batons after a 38-minute car chase from Castro Valley and a foot chase into a dark alley in San Francisco” and Petrov’s attorney testified to Petrov’s mental anguish and fear. The case ended in a $5.5 settlement.
In 2014, the ACLU of Georgia, prior to suing Cobb County on multiple occasions for alleged constitutional violations, reprinted a story from the The Atlanta Journal-Constitution in which a spokesperson for Cobb County Sheriff Neil Warren commented on possible plans to expand their immigration enforcement program. He was “not aware of the plan or the impact it may have on [their] facility.” While not included in Rickerd’s letter to Shuchart, Cobb County’s jail, like MCJ, is notorious for its treatment of people in police custody, particularly with respect to cases where Sheriff Warren filed a Motion to Dismiss.
One main difference between Hogan et al v. Wellstar Health Network, Inc. et al and the other cases referenced above is that all defendants’ motions to dismiss were granted and all claims against the defendants were dismissed in March of 2013. According to judge Richard Story plaintiffs did not “state a plausible claim for medical malpractice” nor did they provide factual content necessary for the court to draw the reasonable inference that the defendants are liable for the conduct alleged (1:12-CV-1418-RWS). Additionally, the judge ruled that the plaintiff failed to sufficiently plead causation, failed to identify any policy or custom adopted or promulgated by Cobb County that caused the plaintiff’s injury, and failed to point to any history of abuse or widespread problems that would have put the County on notice regarding the need for more training or supervision. Further, the judge claimed that only conclusory, vague allegations about the County’s failure to provide adequate supervision, training, emergency pregnancy plans, equipment, and staff were offered to the court.
The outcome of the cases I reviewed all had the same result: qualified immunity for all jail and medical staff involved. Did the jail and medical staff cause the deaths of the unborn children, though? Did their minimal involvement and/or arguable negligence have an impact on the events that took place leading to the harms suffered by the women and their unborn children?
David Hamer provides an extensive treatment of the alleged difference between ‘factual causation’ and ‘scope of liability’ by challenging the idea that factual causation is determined through a purely factual enquiry whereas scope of liability is non-causal and involves a normative assessment.” Further, he emphasizes the importance of unpacking the distinction given the impact that both principles, in theory and practice, have on conceptual and legal understandings of causation and the limits of liability. John Morris, for instance, examines the ways in which the idea of a cause-in-fact of harms can influence torts by recontextualizing, critiquing, and analyzing David Robertson’s “Harriet hypothetical” that illustrates the Restatement (Third) of Torts. The Harriet hypothetical, as proposed by Robertson, is as follows, emphasis is added with italics:
Eight tortfeasors, acting independently but simultaneously, negligently lean on a car, which is parked at a scenic overlook in the mountains. Their combined forces result in the car rolling over the edge of the mountain and plummeting to its destruction. The force exerted by each of A through G constituted thirty-three percent of the force necessary to propel the bus over the edge. The force exerted by the eighth tortfeasor, Harriet, because of her slight build, was only one percent of the force necessary to propel the car over the edge. Harriet’s conduct was a section 27 factual cause of the harm, because Harriet’s force was a necessary element of an imaginary causal set made up of her conduct plus that of any three of the others.
Robertson claims that “no ordinary thinker could bring himself to say that she did any harm”. Morris questions whether or not Harriet should escape liability for the one percent of force she contributed to the imaginary causal set. In order to begin to answer the questions that stem from that scenario, Morris applies the “rules and rationales comprising the Restatement Third’s factual causation framework” to other hypothetical, imaginary causal sets. Now I will briefly focus on one of Morris’ hypothetical scenarios and compare the determinations regarding factual causation and scope of liability used in both Robertson’s and Morris’ hypothetical scenarios in order to find out whether or not the Restatement Third’s factual causation framework could and should be applied to cases mentioned in this article as well as others like it.
The American Law Institute publishes a series of detailed explanations of various subjects—written by judges, legal scholars, and other practitioners—relevant to common law in the United States that are sometimes viewed as being nothing more than “an attempt to protect the common law against codification” or critiqued for their failure to keep up with the viewpoints and priorities of practitioners leading some to critique the Institute’s overarching philosophy of law. The Restatements, while not weighted as heavily as precedents or statutes in case law, are sometimes cited in cases and often serve as a useful source of information for practitioners and judges. The debated level of utility paired with the questionable level of authority of the Restatements have led to a growing body of literature that critiques both the Restatements and the Institute as such. Here I’ve chosen to highlight the importance of their methodological utility with respect to understanding, unpacking, and determining factual causation and scope of liability claims in tort law.
While in the future I intend to expand on this topic, for the intents and purposes of this article I will simply invite the reader to consider the facts of the “Harriet” case and ask oneself: could the (in)action of the jail and medical staff be a necessary element of a hypothetical causal set that culminates in the death of, or harms against, the women’s unborn children? If there is even a slight chance that that is the case, the immunities granted to the jail and medical staff should be overturned. In Notes Dirty Harriet: The Restatement (Third) of Torts and the Causal Relevance of Intent by Morris, he explores this line of questioning by revisiting the original “Harriet” questions.
By virtue of her contribution, is Harriet now a cause-in-fact of the harm? If Professor Robertson is right that the answer to Harriet’s case is that Harriet should go free, then a principled answer to the Dirty Harriet hypothetical should likewise allow Harriet to escape liability. However, recent case law employing the relatively new Restatement (Third) of Torts suggests that Harriet’s state of mind may have some relevance to the causal question. If so, the Dirty Harriet hypothetical carries implications for any tort case involving parallel tortious action, such as familiar asbestos and pollution litigation as well as certain less familiar but increasingly important statutory tort cases.
Without approaching cases like these with attention to detail, an eye to history, and a willingness to examine the true meanings of cause and negligence, these types of harms will continue to take place and go unpunished.