Duval County, Florida, et al., Defendants-Appellants.
William L. Coalson, Harry L. Shorstein, William Lee Allen, Jacksonville, Fla., Donna H. Stinson, Asst. Atty. Gen., Dept. of Legal Affairs, Civil Division, Robert Shevin, Atty. Gen., Tallahassee, Fla., for defendants-appellants.
William J. Sheppard, Jacksonville, Fla. (Court-Appointed), for plaintiffs-appellees.
Before TUTTLE, WISDOM, and COLEMAN, Circuit Judges.
The threshold question here is whether the district court had jurisdiction over the subject matter of the case. In addition, on appeal the appellants challenge the propriety of certain remedies the district court fashioned to rectify uncivilized conditions in a jail for detainees. Appellants also attack the district court's award of attorney's fees to counsel for the plaintiffs-appellees.
On June 11, 1974, detainees held in the Duval County Jail in Jacksonville, Florida, filed a handwritten pro se complaint against Dale Carson, the Sheriff of Duval County, for the purpose of improving conditions in the jail. The district court ruled that the case was properly brought as a class action, and defined the class as all persons "who are presently or in the future will be incarcerated in the Duval County Jail".1 The district court appointed counsel, William J. Sheppard, to represent the pro se plaintiffs. Shortly thereafter, Sheppard filed an amended complaint against Sheriff Carson and other local2 and state3 officials responsible for the operation of the jail. That complaint alleged violations of the first, fourth, fifth, sixth, eighth, ninth, and fourteenth amendments to the United States Constitution, and violations of 42 U.S.C. §§ 1983, 1985, and 1986, and of certain Florida statutes. The plaintiffs sought declaratory and injunctive relief, damages, and reasonable attorney's fees.
The plaintiffs moved for partial summary judgment as to the local defendants. After three weeks of hearings, the trial court issued a declaratory judgment, supporting findings of fact, and a preliminary injunction.4 No appeal was ever taken from the judgment, findings, or injunction. On July 17, 1975, the court entered an order substantially incorporating its earlier findings of fact and granting a permanent injunction. 401 F.Supp. 862. The court awarded $45,792 in attorney's fees to Sheppard. 401 F.Supp. 845.
The defendants-appellants have never contested the conclusions of law or findings of fact of the trial court. First, the defendants contend that the trial court lacked jurisdiction to issue the injunction of July 17, 1975. Second, they argue that the trial court abused its discretion in ordering the following remedial measures: contact visitation, daily recreation, a reduction in the prison population to a level below that contemplated in the design and construction of the jail, and the hiring of a permanent ombudsman. Finally, the defendants contend that the court had no power to award attorney's fees and, in the alternative, that the fees awarded were excessive.
We affirm the rulings of the district court with minor modifications: we affirm its holding that an ombudsman be appointed, but conclude that the ombudsman should not hold permanent office at the Duval County Jail; we modify the ruling that the inmates are entitled to outdoor recreation; we find a different basis for a proper award of attorney's fees to counsel for the plaintiffs-appellees.
The Duval County Jail primarily houses persons awaiting trial on criminal charges. A secondary function of the jail is to hold convicted state and federal prisoners awaiting assignment and transfer to other institutions. The jail was built in 1956 as a maximum security facility. It was designed to hold 432 inmates.
At the time this suit was filed, when a person was arrested, brought to the Duval County Jail, and booked, he was first assigned to a "holding cell". The cell's dimensions were eight feet four inches by nine feet nine inches. In that cell he would find a sink and a commode that might or might not be working. He found other inmates of the cell all members of his own race sometimes so crowded together that the inmates had to eat their meals while standing because there was not enough room to sit. Although inmates were classified racially, no segregation on any other basis was attempted. First offenders and juveniles were crowded with convicted murderers, drunks, mental cases, homosexuals, and inmates with body lice and contagious diseases. Vomitus, feces, and urine were sometimes on the floor of the cells. At night, inmates slept in their clothes, without bedding of any kind, on benches or on dirty floors. There were no trash cans in the holding cells. Threats and violent attacks by inmates on other inmates were not uncommon in the holding cells, and the plaintiffs' evidence showed that at least one murder and at least one suicide occurred there in 1974.
After a stay of up to eight days in a holding cell, inmates were transferred to larger cells on the upper floors of the jail. There, showers were available, but newly arrived inmates often could not obtain hygienic materials, such as soap, toothbrushes, and shaving gear, for several days. Sanitation in the upstairs cells was poor. The trial court found that all the commodes and sinks in the upstairs cells were filthy. Standing water on the floor of one of the cell blocks caused slips and falls that resulted in serious injuries. Mice and rats were so numerous that inmates passed their idle time trapping these vermin. The ventilation was poor, and lighting was so weak that reading was never possible in some areas. The trial court found that laundry service was inadequate: the inmates themselves washed most of their clothing with hand soap.
Although the jail was designed for 432 inmates, the population sometimes exceeded 600 and was rarely below 100 over the stated maximum. Some inmates slept in cell-block dayrooms on mattresses strewn on the floor because sleeping areas were inadequate. One expert witness described the situation as "almost shoulder-to-shoulder housing". 401 F.Supp. at 873. Overcrowding strained jail personnel and made conditions even more unsanitary.
At the time this suit was filed, the jail did not have rules governing inmate behavior, and punishment was inflicted without a hearing. The district court found that medical facilities were inadequate. A physician was present only one-half day a week, and nurses were available during only one or two of the three daily shifts. The district court found an even greater problem in the procedure to obtain medical help. Inmates had first to obtain the attention of a correctional officer to receive medical help. In the upstairs cells, inmates often signaled by beating trash can lids against the cell walls. Even so, help was not always forthcoming. The district court found that "the inadequacy of the communications system . . . contributed to the deaths of several inmates". 401 F.Supp. at 876.
The food inmates received was cold and nutritionally inadequate. No special diets were available for inmates with special religious or medical requirements; pork was used "in virtually all meals" because prisoners at the County's correctional farm raised hogs. 401 F.Supp. at 885. Inmates were allowed out of the cell blocks for exercise and recreation only two hours a week. The jail's staff was inadequate: at times the only authority present on a floor with 110 inmates was an inmate-trusty. The trial court found that inadequate supervision by guards contributed to "a daily horror show of violence" in the jail, where assaults, attempted suicides, and homosexual rapes were commonplace. 401 F.Supp. at 883. Jail personnel prepared reports on more than 150 occasions of brutality in the first 11 months of 1974. In most of these incidents, the injured inmate received hospitalization or medical care.
Visitation privileges at the Duval County Jail were limited to two hours on one day of each week and were confined only to members of an inmate's immediate adult family. Visiting hours still occur on Saturdays from 12:30 P.M. to 2:30 P.M. and on Sundays from 12:30 P.M. to 2:30 P.M. Visiting facilities still consist of three small scratched and cloudy visiting windows in each cellblock with malfunctioning speaker boxes below. The construction of the windows and speakers is such that there can be no eye contact at the time of the verbal communication. Visitors and inmates alike are required to shout to be heard and the arrangement prevents any privacy or physical contact whatsoever. There appears to be almost no supervision of visiting by jail personnel, undoubtedly resulting in inequities in obtaining a window due to the overcrowded condition.
401 F.Supp. at 884. Pretrial detainees could not meet with prospective witnesses unless the witnesses were relatives. Jail personnel routinely monitored inmates' telephone calls. Attorneys could not visit inmates during meals or in visiting hours or after 9:00 P.M.
The trial judge, who had handled several cases involving conditions of confinement in the Florida State Prisons, made this finding: "The totality of circumstances present at the Duval County Jail . . . produced conditions significantly inferior to those existing within the Florida state institutions." 401 F.Supp. at 889. The district court found that the conditions were "worse than those to which many sentenced prisoners are subjected in Florida, even though the majority of the plaintiffs and the subclass of pretrial detainees they represent have not been convicted and are not subject to punishment for any crime". The conditions were "severely punitive and effectively punish" detainees "before they have been convicted of any crime". This "constitute(d) punishment which is both cruel and unusual". The lack of access to lawbooks, the restrictions on visiting privileges, and the limitation on telephonic communications deprived the plaintiffs of effective assistance of counsel. There were restrictions on religious freedom. Discipline was administered in an "arbitrary, capricious, and unlawful summary" manner. "(A)rbitrary and capricious limitations" were placed upon access to families and friends. 401 F.Supp. at 839, 840. The trial judge held that these and other conditions violated the plaintiffs' rights under the first, fifth, sixth, eighth, and fourteenth amendments to the Constitution;5 and under 42 U.S.C. § 1983.
"Upon the whole, if the offense be not bailable, or the party cannot find bail, he is to be committed to the county gaol . . . there to abide till delivered by due course of law. . . . But this imprisonment, as has been said, is only for safe custody, not for punishment: Therefore, in this dubious interval between the commitment and the trial, a prisoner ought to be used with the utmost humanity, and neither be loaded with needless fetters or subjected to other hardships than such as are absolutely requisite for the purpose of confinement only." 4 Blackstone Commentaries 300. (Ehrlich's Blackstone 901 (1959)).
The plaintiffs contend that the trial court properly exercised jurisdiction under 28 U.S.C. §§ 1343(3) and (4), the jurisdictional analogues to 42 U.S.C. § 1983, and that it properly granted declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 2202.7 The defendants argue that the trial court had no subject matter jurisdiction over this claim. Their argument runs as follows. There would be no jurisdiction in this case under § 1343 if there were no claim under § 1983. No § 1983 claim can be maintained against a city or a county, because these political subdivisions are not "persons" for the purpose of that section. City of Kenosha v. Bruno, 1973, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109; Moor v. County of Alameda, 1973, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596. When a 1983 suit is brought to obtain money from the public fisc it cannot be maintained even though the nominal defendants are natural persons. Muzquiz v. City of San Antonio, 5 Cir. 1976 (en banc), 528 F.2d 499.
Muzquiz, however, does not stand for the proposition that no one can maintain a 1983 suit that is in essence against a governmental body regardless of the relief sought. In Muzquiz, the plaintiffs sought, in effect, the transfer of money from a governmental entity to their own pockets. They labeled their action one for an accounting, restitution, and refunds, and sued individual members of the Board of Trustees of the City's pension fund. This Court held that the suit would fail because the relief requested was "tantamount to a money judgment for restitution against the fund". 528 F.2d at 501. Muzquiz is distinguishable from the case we face now: the plaintiffs seek no transfer of money to themselves. They do not even seek the expenditure of public funds. They asked the district court only to halt the unconstitutional operation of the Duval County Jail. Muzquiz does not bar such relief. In McGill v. Parsons, 5 Cir. 1976, 532 F.2d 484, this Court allowed injunctive relief against city officials and stated that such relief did not result in "the kind of monetary burden . . . which we proscribed in Muzquiz . . . ." 532 F.2d at 486 n.1.
The instant case is analogous to Williams v. Edwards, 5 Cir. 1977, 547 F.2d 1206, in which this Court stated that a district court order to improve the Louisiana State Penitentiary at Angola "does not require the spending of funds. It requires only that if the State of Louisiana continues to operate the Angola prison it must do so within the Constitution and laws of the United States and the State of Louisiana." 547 F.2d at 1212. Williams involved the eleventh amendment, but it stands for the principle that enjoining the unconstitutional operation of an institution need not require monetary expenditures; such an injunction is prohibitory, not mandatory.
The officials operating the jail here have two choices: to operate the jail constitutionally, or not to operate it at all. See Gates v. Collier, 5 Cir. 1974, 501 F.2d 1291, 1319-20. The trial court correctly exercised jurisdiction here. The plaintiffs' 1983 action was proper: it sought injunctive relief from unconstitutional conditions rather than money damages from a nonperson. To hold that officials in their individual capacities are always nominal rather than real defendants for 1983 purposes would be a long step backward in federal jurisdiction. Muzquiz cannot be read to go that far.
Our real issue is whether in striving to attain constitutional objectives the District Court in a few respects went impermissibly beyond the requirements of the federal constitution; more specifically, did the Court supersede the duly constituted state authorities in the performance of vital state functions rather than compelling those authorities to perform those functions in a constitutional manner?
Federal courts must be constantly aware of the delicacy of the balance between federal equitable power and state administration of its own law. Rizzo v. Goode, 1976, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561. But, to quote again from Newman, "Most assuredly, however, in proper cases a federal court can, and must, compel state officials or employees to perform their official duties in compliance with the Constitution of the United States".
Bearing in mind that about 85 percent8 of the inmates in the Duval Jail are unconvicted detainees and considering the offensiveness of the prison conditions, we hold that, with minor exceptions, the experienced trial judge fashioned remedies that were within his judicial power and comply with the standards set forth in Newman and Williams v. Edwards, 5 Cir. 1977, 547 F.2d 1206.
"There can be no doubt that the necessity of assuring security must be balanced against the right to humane treatment of prisoners and that if contact visits (visits that permit inmates to touch their visitors) are incompatible with that need they must be sacrificed. The critical question is whether the two can coexist. We are persuaded that they can . . . " So said the court in Rhem v. Malcolm, 371 F.Supp. at 605. So said the trial judge in this case. So say we.
We have said that for convicted prisoners "visitation privileges are a matter subject to the discretion of prison officials". McCray v. Sullivan, 5 Cir. 1975, 509 F.2d 1332, 1334; see also Newman v. State of Alabama, 5 Cir. 1977, 559 F.2d 283. We reserved, however, the question whether convicted prisoners have a constitutional right to visitation in some form. Martin v. Wainwright, 5 Cir. 1976, 525 F.2d 983, 984 n. 3. Here, the trial judge ordered the defendants to establish a program of "contact visitation"9 for pretrial detainees, many of whom will have the charges against them dismissed.
The district court pointed out that "the defendants have also failed to present direct evidence of the alleged threats to institutional security". 401 F.Supp. at 895. Nevertheless, the court's adoption of the language of the opinion in Rhem v. Malcolm on the subject of security risks strongly points to the Duval jail authorities having discretion to apply different procedures to inmates who represent security risks. Of course, prison authorities are under a duty to adopt reasonable measures to prevent visitors from smuggling weapons or contraband to prisoners, whether the prisoners are convicted or unconvicted and whether they are classified as maximum or minimum security risks.
The trial judge was well aware that the program of contact visitation would take time to put into effect. Moreover, he recognized the concern the defendants expressed as to their ability to comply with the court order in light of the structural limitations of the jail. Accordingly, he allowed the defendants a year within which to establish a program of contact visitation. This period seems reasonable to us; on a showing that an extension of time is necessary, the trial judge will be able to decide whether to grant or to deny the extension.
The trial court based its order, as we have noted,10 on the physical conditions affecting visitation: visits were permitted only for two hours on one day a week; visits were confined to adult members of an inmate's immediate family; facilities consisted of three small scratched and cloudy visiting windows in each cellblock with malfunctioning speaker boxes. Inmates would crowd around these windows without supervision, a situation that resulted in (1) inequitable distribution of the available visiting time, and (2) a total lack of privacy in visitation. Inmates awaiting trial could not prepare their factual defenses, for witnesses could not visit the jail unless they were family members.11 The jail officials did not distinguish between pretrial detainees and convicts, or between inmates who constituted security risks and those who did not. By contrast, more than 95 percent of the convicted felons in the Florida State Prison system were allowed eight hours a week of contact visitation with families. 401 F.Supp. at 884.
In sum, contact visits, especially to detainees, are an appropriate, humane remedy, within the court's constitutional exercise of its judicial power. Rhem v. Malcolm, 2 Cir. 1974, 507 F.2d at 338-39; O'Bryan v. County of Saginaw, E.D.Mich.1977, 437 F.Supp. 582; Jordan v. Wolke, E.D.Wisc.1977,75 F.R.D. 696; Forts v. Malcolm, S.D.N.Y.1977, 426 F.Supp. 464; Mitchell v. Untreiner, N.D.Fla.1976, 421 F.Supp. 886; Inmates, D.C. Jail v. Jackson, D.D.C.1976, 416 F.Supp. 119; Dillard v. Pitchess, C.D.Cal.1975, 399 F.Supp. 1225; see generally Comment, Confronting the Conditions of Confinement, 12 Harv.C.R.-C.L.L.Rev. 367, 373, 401 (1977); Note, United States ex rel. Wolfish v. Levi : The Limits of Administrative Discretion on Inmate Visitation, 3 New England J. Prison L. 291, 300-02 (1976). Moreover, the trial court did not "thrust itself into prison administration", Bounds v. Smith, 1977, 430 U.S. 817, 832, 97 S.Ct. 1491, 1500, 52 L.Ed.2d 72, 86. The jail officials, not the trial court, will plan and supervise the contact visits.
In an earlier case we reserved the question whether the Constitution and 42 U.S.C. § 1983 require that pretrial detainees be allowed opportunities for outdoor exercise and recreation. Smith v. Sullivan, 5 Cir. 1977, 553 F.2d 373, 379. In the case now before us, we face that question and the question whether the Constitution and § 1983 mandate such opportunities for convicted prisoners. We hold that both presumably innocent inmates and convicted inmates must be "allowed reasonable recreational facilities". Pretrial detainees are entitled to such facilities because of the due process clause of the fourteenth amendment. For convicted criminals, as we stated in Newman, 559 F.2d at 291, "We do this simply because such facilities may play an important role in extirpating the effects of the conditions which undisputedly prevailed in these prisons at the time the District Court entered its order".
We find that the remedy ordered by the district court, daily outdoor recreation, is an appropriate goal toward which jail authorities should work. That goal may not be immediately attainable because of lack of resources. See Smith v. Sullivan, 5 Cir. 1977, 553 F.2d 373, 379. Or it may not be invariably attainable because of inclement weather, an outbreak of violence within the jail, or emergency situations. It is, however, a goal toward which the jail authorities should strive.
The issue of the right of pretrial detainees to outdoor recreation pits the paramount need for jail security against the principle found in the procedural branch of the fourteenth amendment's due process clause that citizens may not be punished without proof. We hold that presumably innocent pretrial detainees who are not classified as security risks and who have not been shown to have violated the disciplinary rules of the jail have a fourteenth amendment and 1983 right to regular access to the outdoors.
The reason for which presumably innocent detainees are incarcerated is to assure their attendance at trial. Any incarceration or detention might be deemed punitive, because it is a deprivation of liberty. But pretrial detention only becomes punishment violative of the fourteenth amendment due process clause when the conditions placed on the detainee are more restrictive than are necessary to assure his presence at trial or to preserve security. Duran v. Elrod, 7 Cir. 1976, 542 F.2d 998, 999; Rhem v. Malcolm, 2 Cir. 1974, 507 F.2d 333, 336-37. "(W)here a person has not been convicted of a crime, any deprivation of his liberty by the state must be the least restrictive means of achieving the purpose of the deprivation." Note, Constitutional Limitations on the Conditions of Pretrial Detention, 79 Yale L.J. 941, 949 (1970), quoted in Hamilton v. Love, 1971, E.D.Ark., 328 F.Supp. 1182, 1192.
We agree with the trial court that conditions at the Duval County Jail were unnecessarily restrictive. Presumably innocent detainees were literally stored in a building designed as a maximum security penal institution a building designed to punish as well as to hold. At the time of the trial of this case, at least 90 percent of the inmates in the jail never left their cellblocks, even for meals. 401 F.Supp. at 893. Inmates presumed innocent by the law were often kept for months in these cellblocks while waiting for trial. The trial court considered the continuous confinement of the inmates at the Duval County Jail and found that such uninterrupted incarceration was unnecessary for the purpose of maintaining their presence at that institution. We agree with that finding. The trial judge also surveyed the areas available for outdoor recreation at the municipal complex of which the jail is a part and found that there were adequate facilities for that purpose without a "large expenditure of funds". 401 F.Supp. at 893. We find that the continuous incarceration of presumably innocent persons in an institution designed to punish, where outdoor recreation is reasonably possible, is unnecessarily restrictive and therefore punishes the innocent in violation of procedural due process. See Rhem v. Malcolm, 2 Cir. 1974, 507 F.2d 333; Duran v. Elrod, 7 Cir. 1976, 542 F.2d 998, 999; Haggy v. Solem, 8 Cir. 1977, 547 F.2d 1363 (per curiam); Hamilton v. Landrieu, E.D.La.1972, 351 F.Supp. 549, 550; Taylor v. Sterrett, N.D.Tex.1972, 344 F.Supp. 411, 422, aff'd, 5 Cir. 1974, 499 F.2d 367, 368; Brenneman v. Madigan, N.D.Cal.1972, 343 F.Supp. 128, 140; Conklin v. Hancock, D.N.H.1971, 334 F.Supp. 1119, 1122; Jones v. Wittenberg, N.D.Ohio 1971, 330 F.Supp. 707, 717, aff'd, 6 Cir. 1972, 456 F.2d 854.
Each institution shall employ a qualified full-time recreation director with at least bachelor's level training, or its equivalent, in recreation or physical education. Adequate equipment and facilities shall be provided to offer recreational opportunities to every inmate. Space shall be available for inmates to engage in hobbies. Suitable vocational programs shall be provided.
affirm(ed) the actions of the District Court designed to provide Alabama prison inmates with reasonable recreational facilities. We (did) this simply because such facilities may play an important role in extirpating the effects of the conditions which undisputably prevailed in these prisons at the time the District Court entered its order.
Conditions in the Duval County Jail were similar to those in the Alabama prisons. In Alabama, "most inmates (had to) spend substantially all of their time crowded in dormitories in absolute idleness". 406 F.Supp. at 326. In the Duval County Jail, as we have noted, over 90 percent of the inmates never left their cellblocks. Moreover, the trial court found from the evidence "that there is an extreme need for recreational facilities in the Duval County Jail". 401 F.Supp. at 881. Given the totality of the circumstances at the Duval County Jail, we find that the district court did not abuse its discretion in ordering the jail authorities to work toward a program of daily outdoor recreation.
C. Restriction on Jail Population.
The defendants contend that the trial court erred in restricting the normal daily population13 of the Duval County Jail to 410 inmates, when the jail was originally designed to hold 432 inmates in the general population. The district court found, however, that overcrowding at the jail caused constitutional deprivations and that, whatever its original design, the jail provided adequate space for only 410 inmates. 401 F.Supp. at 899. We see no abuse of discretion in this part of the trial court's order.
The district court based its order to limit the population to 410 on the testimony of two experts on prison correction.14 Professor Charles Robert Sarver,15 for the plaintiffs, concluded that the jail could properly hold 404 inmates. Professor Ellis MacDougall,16 a witness for the court, concluded that the jail's capacity was around 425.17 Professor Sarver based his conclusion on the original design capacity of the jail18 and changes made in the jail after its construction. Some of the space designed for housing inmates had been converted to a law library, an infirmary, offices, and a convalescent unit. What the defendants contend, in effect, is that the trial court should have ignored the changes made in the jail and should have considered only the original design. We find that contention without merit.
D. Appointment of an Ombudsman.
The trial court ordered "the establishment of a permanent ombudsman to act as a middleman between the inmates and the correctional staff". 401 F.Supp. at 898. (Emphasis in original.) He had the good judgment to appoint a Magistrate as ombudsman.
We, too, are aware of the burdens imposed upon the federal judicial system by the increasing volume of prisoner litigation . . . The federal courts, and particularly the district courts, must make every effort to devise procedural innovations that will readily separate meritorious claims from frivolous claims and that will encourage informal settlements of grievances while at the same time preserving the plaintiffs' rights under 42 U.S.C. § 1983.
517 F.2d at 298. The ombudsman, like the monitor ordered by this Court in Newman v. State of Alabama, 5 Cir., 1977, 559 F.2d 283, should observe conditions at the jail and report his observations to the trial court, to assure compliance with the trial court's orders. To that end, he may report inmate complaints to the jail administration,22 for such reports may lead to the solution of some problems without involving a litigation. Cf. Newman v. State of Alabama, 559 F.2d at 289 (informal conferences between monitor and warden may lessen burden on trial court). The ombudsman may also, as the trial court suggested, serve as a channel of communication from the jail administrators to the inmates, if the officials see fit to use him in that way. The ombudsman, however, like the monitor, should have "no authority to intervene in daily prison operations". Id. He is to be an arm of the court rather than an independent agent. See Newman for a discussion of the duties and powers of an ombudsman/monitor.
The trial court erred in ordering that the ombudsman have permanent office. Court-ordered permanency is an intrusion into state administration of prisons beyond the necessities of the case. We find only one other disputed23 case in which a court ordered the use of an ombudsman or monitor without limiting the period such a person should serve. Hamilton v. Landrieu, E.D.La.1972, 351 F.Supp. 549, 552, ordered the employment of a "Prison Ombudsman" to investigate complaints and seek relief from the prison's administrators. That case was never appealed. Other cases more appropriately tie the duration of the official position created to the duration of the litigation spawning it.24 In Gates v. Collier, 5 Cir. 1974, 501 F.2d 1291, 1321, the trial court appointed a monitor to determine the degree of compliance with its order. In Morgan v. McDonough, 1 Cir. 1976, 540 F.2d 527, 533, the court appointed a temporary receiver for troubled South Boston High School. Inmates of Attica Correctional Facility v. Rockefeller, 2 Cir. 1971, 453 F.2d 12, authorized the appointment of federal monitors to implement an injunction against brutality; the "injunction (could) be vacated upon a showing that it (was) no longer required for the protection of the inmates". In Pugh v. Locke, M.D.Ala.1976, 406 F.Supp. 318, 331, modified sub nom Newman v. State of Alabama, 5 Cir., 1977, 559 F.2d 283, the district court had appointed a thirty-nine-man Human Rights Committee for the Alabama Prison System to monitor compliance with the court's orders; on appeal this Court ordered the dissolution of the committee and the appointment of a monitor. In Morales v. Turman, E.D.Tex.1973, 364 F.Supp. 166, 179 and E.D.Tex.1974, 383 F.Supp. 53, 120-21, an ombudsman was appointed to report to the court on various matters, including possible violations of the court's orders. In Alberti v. Sheriff of Harris County, S.D.Tex.1975, 406 F.Supp. 649, 678, the court held that "There shall be an Office of the Ombudsman established to monitor defendants' efforts in complying with (its) Order."After the district court relinquishes jurisdiction, the administrators of Duval County Jail, of course, may determine whether to use an ombudsman, grievance procedures, or both to attempt to settle prisoners' complaints without litigation. There is strong support for use of an ombudsman;25 there is no inconsistency in having both an ombudsman and internal grievance procedures.
On June 12, 1975, the trial court awarded William J. Sheppard of Jacksonville, Florida, the plaintiffs' attorney, $45,792 in fees for his work in this litigation up to April 30, 1975. The joint and several award is to be "satisfied out of funds allocated to operate the Office of Sheriff of Duval County Florida", or to be recovered from the defendants in their official capacities, or against Sheriff Carson in his individual capacity. 401 F.Supp. at 861-62. The defendants challenge this award in two ways: they contend that it was unauthorized by law, and that even if it was legal, it was excessive. We find that the award was proper in both respects.
We base our holding that the award was authorized on the Civil Rights Attorney's Fees Awards Act of 1976,26 Pub.L. 94-559, § 2, Oct. 19, 1976, 90 Stat. 2641, codified at 42 U.S.C. § 1988. That Act provides in relevant part: "In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs."
The defendants-appellants argue that this case does not fit the statute for several reasons. They contend first that the statute should not be applied retroactively. After oral argument in this case, however, this Court resolved that issue in Rainey v. Jackson State College, 5 Cir. 1977, 551 F.2d 672, 674, n.2. We held that the Act "is retroactive and applies to cases pending at the time of its enactment (October 19, 1976)".27 Since this action was pending on October 19, 1976, the Act applies to it.
The defendants also allege that the trial court had no legal authority to assess attorney's fees against them in their official capacities or against the funds allocated to the Sheriff's Office, because "such an award would expend itself on the public treasury of Jacksonville, Florida". Brief for Defendants-Appellants at 46. We find that the award could properly run against the public treasury of Jacksonville.
In several hearings held over a period of years, the Committee has found that fee awards are essential if the Federal statutes to which S. 2278 applies are to be fully enforced. We find that the effects of such fee awards are ancillary and incident to securing compliance with these laws, and that fee awards are an integral part of the remedies necessary to obtain such compliance. Fee awards are therefore provided in cases covered by S. 2278 in accordance with Congress' powers under, inter alia, the Fourteenth Amendment, Section 5. As with cases brought under 20 U.S.C. § 1617, the Emergency School Aid Act of 1972, defendants in these cases are often State or local bodies or State or local officials. In such cases it is intended that the attorneys' fees, like other item of costs, will be collected either directly from the official, in his official capacity, from funds of his agency or under his control, or from the State or local government (whether or not the agency or government is a named party ). (Footnotes omitted) (emphasis added).
S.Rep.No.1101, 94th Cong., 2nd Sess. 5 (1976) U.S.Code Cong. & Admin.News 1976, pp. 5908, 5913. After this report was issued, the Senate twice tabled attempts to exempt state and local governments from the operation of the Act by votes of 59-28 and 52-20. 122 Cong.Rec. S16,432, 16,434 (daily ed. Sept. 22, 1976; id, S16,567 (daily ed. Sept. 24, 1976); id, S16,656, 16,657 (daily ed. Sept. 27, 1976).
With respect to the awarding of fees to prevailing defendants, it should further be noted that governmental officials are frequently the defendants in cases brought under the statutes covered by H.R. 15460. See, e. g., Brown v. Board of Education, (1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873); Gautreaux v. Hills, (1976, 425 U.S. 284, 96 S.Ct. 1538, 47 L.Ed.2d 792); O'Connor v. Donaldson, (1975, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396). Such governmental entities and officials have substantial resources available to them through funds in the common treasury, including the taxes paid by the plaintiffs themselves. Applying the same standard of recovery to such defendants would further widen the gap between citizens and government officials and would exacerbate the inequality of litigating strength. The greater resources available to governments provide an ample base from which fees can be awarded to the prevailing plaintiff in suits against governmental officials or entities.
H.R.Rep.No.1558, 94th Cong., 2nd Sess. 7 (1976) (footnote omitted).
Second, the defendants argue that Muzquiz v. City of San Antonio, 5 Cir. 1976 (en banc), 528 F.2d 499, prevents an award of attorney's fees against a governmental unit because a governmental unit cannot be sued for money damages under 42 U.S.C. § 1983, even indirectly. Although section 1983 provides no cause of action against local governments because they are not "persons" within the meaning of that statute, Monroe v. Pape, 1961, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492, it creates no immunity for them. Congress was free to pass another statute without the restrictive language of § 1983. Because we find that the intention of Congress in passing the 1976 Act was to allow fee awards against local governments, Muzquiz and Monroe do not control.
Third, this Court has already held that a court may assess attorney's fees under the Act against a state governmental unit, because of the Supreme Court's holding in Fitzpatrick v. Bitzer, 1976, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614, that Congress may authorize awards of damages and fees against a state under section 5 of the fourteenth amendment in spite of the eleventh amendment. Rainey v. Jackson State College, 5 Cir. 1977, 551 F.2d 672. We recognize that the state's eleventh amendment immunity is different in nature from the omission of lesser governmental bodies in § 1983. It would be anomalous, however, to hold that while state governments and state entities may be compelled to pay fees under the Act, local governments and their agencies cannot. Although a constitutional amendment was required to limit the eleventh amendment's immunity, 427 U.S. at 456, 96 S.Ct. 2666, only a statutory authorization is necessary to fill the gap in § 1983 and allow the recovery of money from a local government. See, e. g., 20 U.S.C. § 1617, of the Emergency School Aid Act of 1972, construed in Bradley v. School Board of City of Richmond, 1974, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (allowing an award of attorney's fees against a municipal entity).
Fourth, the defendants contend that the plaintiffs' attorney may not receive an award because he is court appointed. Pre-Act cases denied attorney's fees to court-appointed counsel. Dragon v. United States, 5 Cir. 1969, 414 F.2d 228 (per curiam); Gardner v. Joyce, 5 Cir. 1973, 482 F.2d 283 (per curiam). Those cases, however, were based on lack of judicial authority to order attorney's fees. Now that the Act gives trial courts discretion to award attorney's fees we see no reason to discriminate against court-appointed lawyers. Cf. Armstrong v. O'Connell, E.D.Wis.1976, 416 F.Supp. 1325, 1342-43 (allowing attorney's fees to appointed counsel under20 U.S.C. § 1617, the Emergency School Aid Act). Compare Newman v. Alabama, 5 Cir. 1975 (en banc), 522 F.2d 71, 74 (per curiam) (court-appointed counsel) with Gates v. Collier, 5 Cir. 1975 (en banc), 522 F.2d 81 (per curiam) (no mention of appointment). To allow fees to court-appointed counsel will encourage the vindication of civil rights which is the purpose of the Act, and court-appointed counsel should be no more expensive than hired attorneys. We hold that court-appointed counsel may be awarded fees under the Act.28 On remand, the district court should assess additional attorney's fees for services performed after April 30, 1975, including the services performed for this appeal. See Gates v. Collier, 5 Cir., 1977, 559 F.2d 241 at 243.
We find that the trial court did not abuse its discretion in setting the attorney's fee at $60 an hour for in-court time and $40 an hour for out-of-court time for Sheppard, with $30 an hour for less experienced lawyers working with him. The district court properly based its award on an examination of the factors listed in Johnson v. Georgia Highway Express, Inc., 5 Cir. 1974, 488 F.2d 714. 401 F.Supp. at 857-60. We find no error in its award of fees. Cf. Brown v. Culpepper, 5 Cir., 1977, 561 F.2d 1177 (hourly fees of $75 and $65 for two attorneys).
The judgment is affirmed in part, modified in part, and remanded for proceedings consistent with this opinion and for such further action as the district court, pending the termination of this litigation, may take for the vindication of the plaintiffs' rights under Section 1983 and the Constitution of the United States.
I concur in the foregoing opinion prepared for the Court by Judge Wisdom, except that I would defer decision of the attorneys' fees issue until the Supreme Court decides Hutto v. Finney, on which certiorari has been granted (46 L.W. 3256).
(a) Subclass 1 shall consist of all those inmates, male and female, who are presently or in the future will be incarcerated in the Duval County Jail awaiting trial in the County and Circuit Courts of Duval County, Florida.
(b) Subclass 2 shall consist of all those inmates, male and female, who are presently or in the future will be incarcerated in the Duval County Jail following conviction in the County and Circuit Courts of Duval County, Florida.
(c) Subclass 3 shall include all those federal prisoners who are presently or in the future will be incarcerated in the Duval County Jail awaiting trial in the federal court or awaiting transfer to a federal institution.
The evidence does not show the specific percentage of the inmates of a Duval County Jail who are pre-trial detainees. Although the percentage of pre-trial detainees has been estimated at about 85%, the evidence is uncontroverted that the vast majority of the inmates are in fact pre-trial detainees and that the Duval County Jail was exclusively designed and has always been primarily utilized as a maximum security facility for the detention of pre-trial detainees.


text:
Ed Daniel IV, P.A., by: Ed Daniel IV, for appellant.
Nixon, Light & Buzbee, PLLC, by: John B. Buzbee, for appellee.
Appellant Kathy Frazier Mays appeals the May 2017 order entered by the Pulaski County Circuit Court, probate division, finding that she failed to establish the invalidity of an antenuptial agreement. The parties to the 1995 antenuptial agreement were Kathy and Sedrick Mays. Sedrick died in June 2015. Kathy argues on appeal that the trial court's finding that the antenuptial agreement was enforceable against her is clearly erroneous and must be reversed. We disagree with her argument and affirm.
The appellate court reviews probate proceedings de novo but will not reverse the decision of the probate court unless it is clearly erroneous. Seymour v. Biehslich, 371 Ark. 359, 266 S.W.3d 722 (2007). A finding is clearly erroneous when, although there is evidence to support it, the appellate court is left on the entire evidence with the firm conviction that a mistake has been committed. Id. We must defer to the superior position of the lower court sitting in a probate matter to weigh the credibility of the witnesses. Patton v. Fulmer, 2016 Ark.App. 260, 492 S.W.3d 512. To the extent that the appellate court reviews questions of law, that review is de novo. Estate of Taylor v. MCSA, LLC, 2013 Ark. 429, 430 S.W.3d 120; Broussard v. St. Edward Mercy Health Sys., Inc., 2012 Ark. 14, 386 S.W.3d 385.
Arkansas law has long recognized the validity of premarital agreements. See, e.g., Oliphant v. Oliphant, 177 Ark. 613, 7 S.W.2d 783 (1928). In Arkansas, a premarital agreement is valid if it was freely entered into and is free from fraud and not inequitable. Arnold v. Arnold, 261 Ark. 734, 553 S.W.2d 251 (1977); Gooch v. Gooch, 10 Ark.App. 432, 664 S.W.2d 900 (1984). Parties contemplating marriage may, by agreement, fix the rights of each in the property of the other differently than established by law. Banks v. Evans, 347 Ark. 383, 64 S.W.3d 746 (2002); Hughes v. Hughes, 251 Ark. 63, 471 S.W.2d 355 (1971). In determining the fairness or equity of the agreement, the court may consider the parties' respective stations in life, their experiences and educations, and their knowledge of financial and legal matters. Banks, supra; Gooch, supra.
(iii) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party. . . . .

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History: Though its language has been altered over the years, this aggravating circumstance was one of the original six circumstances listed in the 1973 capital sentencing statute.
Constitutionality: The (F)(2) aggravator is constitutional.The (F)(2) aggravating factor permits consideration of a prior conviction for a “serious offense,” which may have been committed contemporaneously with the murder. The (F)(2) aggravator, by including the consideration of offenses committed contemporaneously with the murder, does not violate the Eighth Amendment. “The aggravator [performs the narrowing function and reasonably justifies imposition of the death penalty; the aggravator] appropriately channels and limits the sentencer’s discretion by explicitly identifying which offenses qualify as ‘serious offenses.’” State v. Forde, 233 Ariz. 543, 315 P.3d 1200 (2014).
The Court rejected the argument that double jeopardy prohibits the use of predicate felonies as “capital sentencing aggravators,” upholding that State using his conviction for child abuse as both the predicate felony for felony murder and as an aggravating circumstance under A.R.S. § 13-751(F)(2) against a Double Jeopardy challenge. State v. Sanders, --- P.3d ---, CR-14-0302-AP, 2018 WL 4354906 (Sept. 13, 2018). The Sanders Court also rejected the defendant’s argument that the (F)(2) aggravator violates the Eighth Amendment by failing to genuinely narrow the field of death-eligible defendants.
Timing of the Offense: From September 18, 2003 to the present: Convictions entered prior to a sentencing hearing can be considered regardless of the order in which the underlying crimes occurred, or the order in which the convictions were entered. State v. Chad Lee, 189 Ariz. 590, 944 P.2d 1204 (1997). See also, State v. Rogovich, 188 Ariz. 38, 932 P.2d (1997)(applies to convictions entered prior to sentencing hearing, regardless of the order in which the underlying crimes occurred). Moreover, as indicated by the language of the statute, the legislature now allows convictions for offenses that occurred on the same occasion as the homicide or which have been consolidated for trial, to be used to prove the (F)(2) factor.
Prior to September 18, 2003: Prior to the effective date of the 2003 amendment to § 13-751(F)(2), offenses could not support an (F)(2) finding when they arose from events occurring contemporaneously with the capital homicide. See State v. Rutledge, 206 Ariz. 172, 175-76, 76 P.3d 443, 446-47 (2003); State v. Phillips, 202 Ariz. 427, 438, 46 P.3d 1048, 1059 (2002); State v. Gretzler, 135 Ariz. 42, 57 n.2 (1983). This being so, it should be emphasized that, so long as the events were not contemporaneous with the homicide, felony convictions obtained at the same trial as the capital homicide could be used to support this factor. See State v Finch (II), 205 Ariz. 170, 68 P.3d 123 (2003) (defendant’s 27-felony-count convictions relating to the first two robberies, which occurred on earlier dates than the third robbery, where the victim was killed, were sufficient to support (F)(2), where all convictions including capital murder were obtained at same trial; use of convictions resulting from third robbery was harmless error).
Order of Crimes/Order of Verdicts: It is important to note that in both the pre and post 2003 versions of this statute, all guilty verdicts rendered by the trier of fact entered prior to the commencement of the sentencing hearing, so long as no issues of contemporaneousness exist if it is a pre-2003 case, can be considered in support of the (F)(2) aggravator. This is true regardless of the order in which the underlying crimes occurred or the order in which trier of fact rendered its verdicts. The fact that the pre-2003 version of the statute read: “The defendant was previously convicted of a serious offense, whether preparatory or completed,” see A.R.S. 13-751(F)(2) (2002)(superseded), and it now reads, "The defendant has been or was previously convicted of a serious offense, whether preparatory or completed,” A.R.S. 13-751(F)(2) (emphasis added), is of no moment in considering when prior convictions can be considered for (F)(2) purposes. The 2003 amendment was designed only to permit serious offenses that occurred contemporaneously with the homicide to be considered for this factor. The “has been convicted” language was added to comport with language already set out in (F)(8) – the aggravating factor aimed at homicides occurring contemporaneously with each other. Since (F)(8) was already phrased, “the defendant has been convicted of one or more other homicides,” the legislature added the “has been convicted” language to (F)(2) at the same time that it added the provision for contemporaneousness. See State v. Rutledge, 206 Ariz. 172, 176 (2003) (“The only limitation is that the conviction for the serious offense must be rendered before sentencing on the murder”), and see n.3 (discussing this amendment and the purpose thereof); and see, e.g., State v. Jones, 197 Ariz. 290 (2000) (The defendant had three aggravated assault, 3 burglary, and 2 armed robbery convictions stemming from two robbery/murder events that occurred on two occasions. Multiple victims were killed on each of the two occasions. The court stated, “Because Jones was convicted of these serious offenses before the sentencing phase, each offense provides sufficient grounds for satisfying the F.2 factors for the murder offenses”) (emphasis added), cert. denied, 532 U.S. 978 (2001). Thus, the addition of the “has been convicted” language denotes nothing more a desire to achieve language conformity with (F)(8).
The state must prove beyond a reasonable doubt that the defendant has been convicted of a serious offense as defined in A.R.S. § 13-751(I). Those offenses are: first degree murder, second degree murder, manslaughter, aggravated assault involving a serious physical injury or committed by the use or threatening exhibition of a deadly weapon or dangerous instrument, sexual assault, any dangerous crime against children, arson of an occupied structure, robbery, first degree burglary, kidnapping, and sexual conduct with a minor under fifteen years of age. Two additional offenses were added to the list in 2005: second-degree burglary and terrorism. The inclusion of these offenses effect first-degree murders committed on or after August 12, 2005. Preparatory offenses include attempt, solicitation, conspiracy and facilitation. See A.R.S. §§ 13-1001 to 13-1006. This version of (F)(2) now encompasses crimes that can be committed with a reckless state of mind. That was not the case with the old version of the statute.
Note also that, effective August 12, 2005, for the purposes of determining if a dangerous crime against children qualifies as a “serious offense,” a minor under the age of twelve includes an unborn child.
A.R.S. § 13-751(F)(2) formerly stated that it was an aggravating circumstance where "[t]he defendant was previously convicted of a felony in the United States involving the use or threat of violence on another person." Violence is defined as the exertion of any physical force so as to injure or abuse. State v. Arnett, 119 Ariz. 38, 579 P.2d 542 (1978).
Two prongs must be satisfied to qualify a prior conviction as a felony involving violence. First, the statutory definition must “necessarily involve the use or threat of violence.” State v. Rogovich, 188 Ariz. 38, 44 (1997). This means that the felony offense must involve violence by its nature; it is not relevant whether the defendant actually committed the felony in a violent manner. See State v. Gillies, 135 Ariz. 500, 511 (1983), cert. denied, 470 U.S. 1059 (1985) (theft not a violent offense despite testimony from victim at aggravation phase that defendant had assaulted and threatened him during the class-six theft proffered by the State as satisfying (F)(2)); State v. Ysea, 191 Ariz. 372, 375-76, 956 P.2d 499, 502-03 (1998) (discussing Gillies and why solicitation to commit aggravated assault was not a violent offense for the purposes of (F)(2)); and see State v. Schackert, 190 Ariz. 238, 947 P.2d 315 (1997) (sexual assault and kidnapping, by statutory definitions alone, did not satisfy the violence requirement because each could be committed by deception as well as by violence); State v. Richmond, 180 Ariz. 573 (1994) (because kidnapping was not a statutorily violent crime, it was irrelevant that defendant used violence to kidnap); State v. Bible, 175 Ariz. 549 (1993), cert. denied, 511 U.S. 1046 (1994) (statutory definition alone of sexual assault did not satisfy “violence” requirement, since the element of “without consent” could be satisfied where the victim was deceived or incapable of valid consent).
Second, the offense must have been committed knowingly or intentionally. If it is open to interpretation, and the offense could have been committed recklessly, the conviction will not satisfy (F)(2). State v. McKinney, 185 Ariz. 567 (1996) (prior conviction did not satisfy (F)(2) because, on the face of the statute, crime might have been committed recklessly); compare with State v. Walden, 183 Ariz. 595, 905 P.2d 974 (1995) (prior sexual assault and kidnapping convictions satisfied (F)(2) because jury instructions required finding that victim’s movements were restricted by physical force or intimidation to convict on kidnapping, and required finding that the victim was “coerced by the immediate or threatened use of force against a person or property” to convict on sexual assault).
In resolving these issues, the court can look to the relevant statutes, pleadings, jury instructions, and verdicts. State v. Rogovich, 188 Ariz. 38, 44 (1997). Testimony or other evidence from victims of the prior crime must not be considered. State v. Gillies, 135 Ariz. 500 (1983); see also State v. Nash, 143 Ariz. 392 (1985) (court rejected defendant’s argument that without testimony regarding specific facts of each crime, the court cold not take notice that the crimes were violent felonies). Other documents, such as the indictment or information should also not be considered. Cf. State v. Hill, 174 Ariz. 313 (1993) (while prosecution offered evidence of the information, in addition to the judgment and sentence for the defendant’s Colorado conviction for assault with a deadly weapon, the court actually relied only on the statutory definition to find that the conviction qualified for (F)(2)).
Where a prior felony is designated as a “dangerous offense,” the court should look to the definition of that term as in effect at the time of the crime. See A.R.S. §§ 13-604(F),(G). Generally, the definition as in effect for the past twenty years, that a dangerous offense involves either the “intentional or knowing infliction of serious physical injury or the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument,” should satisfy the requirement that the felony be one of “violence.” The court must then still consider if the mens rea requirement has been satisfied.
Proof that Defendant is the Person Who Committed the Offense There must be documentation admitted showing that the defendant has committed the prior offense and the testimony of a parole officer or other official, alone, will not be sufficient. (State v. Hauss, 140 Ariz. 230, 681 Ariz. 382 (1984)) The documentation of a prior conviction must establish that the defendant is the person to whom the document refers. This can be accomplished by physical descriptions. See State v. Carreon, 210 Ariz. 54, 107 P.3d 900 , 911 ¶¶53-54, n. 12 (2005) (DOC documents showed that defendant had identifying tattoo on his back of his nickname “East Side Longo”, and defendant had this exact tattoo).
Unanimity as to Multiple Prior Convictions: Where the State presents evidence that the defendant has been convicted of more than one serious offense, the jury need not be unanimous as to which of the offenses were proven to apply this factor. State v. Carreon, 210 Ariz. at 54, 107 P.3d at 900 ¶55-57.
Multiple Crimes Arising from the Same Criminal Transaction: Multiple crimes arising from the same criminal transaction count individually, and not as only one previous criminal conviction. State v. Carreon, 210 Ariz. at 54, 107 P.3d at 900 ¶58-59 (the court, citing to the language of the 2003 amended version of (F)(2), applied this principle to the defendant, who was subject to the 1993 version of (F)(2); it is unclear whether this principle applies to convictions occurring prior to July 17, 1993).
Noticing the (F)(2) Factor: The State can notice the (F)(2) factor in anticipation that the jury will convict on a serious felony at the capital murder trial or at a separate proceeding prior to the capital trial.


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I've compiled this post to help you with potential confusion which could arise from the numerous truck driving bans encountered by drivers in Germany. I've also tried to set out the info in a step-by-step way and have included links to the sources of relevant law.
As mentioned by some members, the map for this year doesn't (yet?) appear to have materialised, so here's my attempt at explaining when and why trucks may not be driven in Germany on certain days of the year.
When speaking to the gentleman (I have his name ) at the Cologne HQ, it became clear from his explanation that there are TWO SEPARATE regulations banning the movement of trucks in Germany on certain days, both Regulations are clearly worded, BUT I must stress that the bans are quite separate and apply in different circumstances.
There is no UK equivalent of FeV, but StVO is the German equivalent of our "Road Traffic Act" so that's why they take it so seriously.
So maybe it’s best to look at these one at a time to discover why they appear to be different.
Link to quoted source (FeV) This link goes to a secured .pdf so no copy and paste.
My quotes are therefore manually typed and then copied and pasted from MS Word so I can use German characters.
§ 1 deals with definitions and validity, and gives the exact list of the affected stretches of motorways and National roads.
FeV applies ONLY on Saturdays from 07:00 — 20:00 to named sections of Autobahns and national roads from the 1st July to the 31st August inclusive. It doesn't apply at any other time, or to any other road. The whole idea behind FeV is to prohibit the movement of trucks on Saturdays during the busy holiday period July - August.
§2 gives a list of publicly owned vehicles with automatic exemptions such as Police, Fire Brigade and the military etc.
(2) The prescribed documentation must be carried for all journeys and handed to authorised officials upon demand for checking.
§ 4 says that exemption permits giving exemptions from §1 (the ban) can be obtained from the Road Traffic Authorities (Straßenverkehrsbehörden) and describes circumstances of how / when / which office is to be approached for an exemption permit.
§ 5 deals with offences against this Regulation.
and finally, § 7 says that this came into force on 01/06/1985.
4. Journeys by vehicles used in connection with civil defence / protection, which must carry the appropriate documentation for production to authorised officials for checking, upon demand.
In the FeV (Saturday ban) there is NO km limit, so you can run anywhere you like, as long as you don't use any of the stretches of roads / M/ways mentioned in FeV § 1.
In the StVO (Sunday and Bank Holiday ban) ALL roads and motorways are covered by the ban, except for journeys to/from a consignor/consignee within a 200km radius of the railway station or a 150km radius of a port. When this ban applies, there is NO exemption for transit traffic to/from the train according to the man from the BAG in Cologne.
Whilst it's thoretically possible that there might be some kind of local exemption covering a journey from the rail teminus to the nearest border, I have no PROPER HARD EVIDENCE of this either one way or the other, except what the BAG man told me.
I hope this post gives you sufficient info to come to your own decision whether to park or drive on a day affected by either driving ban.
My thanks go to brit pete for pointing out that the German Authorities sometimes alter the stretches of M/ways and other roads affected by the Saturday ban (FeV) to reflect local traffic conditions.
Therefore, the exact stretches of affected M/ways and roads might not be absolutely 100% accurate.
The translation work is all my own, so neither "Google" nor "Babel Fish" can be blamed.
Since this is an original work, I've deliberately avoided pasting random links to poorly translated info.
I've done my very best to avoid the normal boo-boos associated with translating German.
Last edited by dieseldave on Fri Jun 02, 2017 5:59 pm, edited 5 times in total.
I've heard such conflicting stuff on this subject from drivers, I just thought I'd try and sort out the myths and come up with something fairly definitive that sorts out the two different types of bans.
The translation work gave my brain a bit of a workout, so I benefited too.
Well done, Dave. A very informative post. You put a lot of work in there, mate. Thanks for that.
I was talking to my old boss in Germany the other day, and it seems that since the introduction of the Maut, the Saturday driving ban has become a bit more of a pain in the arse than it used to be.
It used to be possible to drive, say, up from Bayern or Hessen to Westfalen on a Saturday using a combination of motorways which were not subject to the Saturday ban (generally those running East - West were exempt whilst those in the North - South direction were subject to the ban) and Bundesstrassen which were, in the main, also exempt from the ban.
or the B3 Marburg - Borken , meaning that it is now almost impossible to legally drive Bayern - Westfalen or Hessen - Westfalen on a Saturday.
dieseldave wrote: The translation work gave my brain a bit of a workout, so I benefited too.
Inselaffe wrote: Well done, Dave. A very informative post. You put a lot of work in there, mate. Thanks for that.
Thanks, that's very true Inselaffe.
It also took several more hours to do the map and the other stuff in the Sonn- u. Feiertage link,but it was fun.
It might be because the guys weren't stopped, that they think it's OK to run.
Fair enough and good luck to all concerned, but the goal I'd set myself was to try and sort facts from myths to leave some clarity.
There's nothing like knowing where the goalposts are before coming to a decision.
Pulling the two bans together and doing a compare and contrast seemed a good idea at the time, but I'll only know with feedback and comments, so please keep them coming guys.
I wasn't then, but since I prefer kipping on my back, I am now 'resting' after what has been a very long squawk.
Brit Pete is right on the money.
You will get stopped and fined for contravention of Saturday or Sunday driving bans in Germany.
Just thought I'd post up the definitive list of routes subject to the Saturday ban so folks don't have to trawl about looking for it.
Last edited by Inselaffe on Sun Jun 20, 2010 2:35 pm, edited 1 time in total.
Yes Inselaffe, that's true, but die weiÃŸen MÃ¤use also work on Saturdays.
there is at least one more exeption to the StVO, I carry a permit from hansestadt LÃ¼beck that says I am allowed to run during the holidays from the port to the applicable bundesgrenze, not to a loading inside germany, only to the border and from the border to the port, it cost â‚¬80 for 6 months, the saturday ban still applies. I pull a curtainsider.
Ahh, ..... the Flensburger Kartei.
Shows all the roads with a saturday holiday ban plus alternative routes, roads where lorries are banned completely and info about the eco-zones in many German cities, a good little map in fact.
at the bottom of the page, costs about Euro 5 as far as I can make out.
Hi GeoffC, that's a very useful contribution to this topic if you don't mind me saying so.
The Association of German Freight Forwarders and Logistics Operators (Deutscher Speditions- und Logistikverband e.V. - DSLV) is a fairly young organisation. It was founded 2003 in Bonn. It was the merger of the two most important organisations representing the interests of our industry — the Federal Association of Freight Forwarders (Bundesverband Spedition und Logistik - BSL) with its regional member associations and the Association of German Road Hauliers (Vereinigung Deutscher Kraftwagenspediteure - VKS). With its approximately 4,000 members, the DSLV represents about 90% of the estimated 55 billion Euros turnover generated by this industry.
I've to go to Berlin for a tip next Sunday.(2nd March) How am I affected in an 18t with exhibition gear on board? I'll be on the train from Folkestone early Fri-am, so can I go all the way there on the A2 or not?
bigvern1 wrote: I've to go to Berlin for a tip next Sunday.(2nd March) How am I affected in an 18t with exhibition gear on board? I'll be on the train from Folkestone early Fri-am, so can I go all the way there on the A2 or not?
18t is covered in the Sunday ban.
I don't think exhibition gear is exempt from the Sunday ban, unless you have an exemption.
How much driving time will you have at Calais? You should be able to do Calais to Berlin in about a day and a halfs driving.
I had planned on a day and a half. So thanks fellers.
With the possibility of a Big Saturday Night Out In Berlin if you get your skates on, I would recommend "Crack on, drive!"
Inselaffe wrote: With the possibility of a Big Saturday Night Out In Berlin if you get your skates on, I would recommend "Crack on, drive!"
Big Night Out in Berlin used to mean the Kurfurstendam (sp?), more commonly known as The Ku'dam. Get a tram, bus or taxi to the Tivoli Gardens and follow the rest of the roisterers.
bigvern1 wrote: I'm nearly 50!!!!
And? I'm over 50, a good night out on the tiles is a good night out on the tiles!
Is there a truck ban this Friday 15/8? If there is from what time does it start, maybe someone knows?
Not a public holiday in Germany, so crack on.

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text:
The object of research is the distribution laws of capacitor-type insulation values that were obtained during preventive tests for both serviceable and defective high-voltage bushings of 110 kV of hermetic and non-hermetic execution. One of the most problematic areas is insufficient knowledge and lack of justification of the laws for distributing these preventive tests of insulation of bushings.
In the course of the research, a comprehensive approach to the solution of the problems was used, including probability theory and statistical analysis, analysis of world experience and a logical approach. In the long term, the results are expected to be extended to the bushing of other types having similar problems in the diagnosis of the condition.
The method of statistical processing of the results of periodic tests of high-voltage bushings is proposed, which allows to form arrays with homogeneous values of indicators in conditions of limited measurement information. It is established that for the bushings of hermetic and non-hermetic execution, the insulation values for both the serviceable and faulty state can be described by the Weibull distribution. It is established that the distribution densities for serviceable and faulty state of high-voltage bushings intersect, and therefore it is impossible to select the maximum permissible values of insulation parameters that would not give erroneous solutions. The maximum permissible values of the insulation indices of high-voltage oil-filled bushings are proposed using statistical methods and taking into account the most significant operational factors. It is shown that for high-voltage bushings of the same execution there is a shift in mathematical expectations, which is due to the difference in operating time and different load factors of transformers. This circumstance must be taken into account when adjusting the maximum permissible values of the insulation indices of high-voltage bushings.
The use of the developed algorithms and procedures of mathematical statistics in the problems of diagnosing high-voltage bushings contribute to improving expert judgment and decision-making.
Feilat, E. A. (2013). Analysis of the Root Causes of Transformer Bushing Failures. International Journal of Computer, Electrical, Automation, Control and Information Engineering, 7, 791–796.
Anglhuber, M., Velasquez, J. L. (2017). Contreras Dispersing the clouds – gain clear insight into your bushings using advanced diagnostics method. Transformer Magazine. Special Edition: Bushing, 126–132.
Kassikhin, S. D., Sipilkin, K. G., Slavinskiy, A. Z., Ustinov, V. N., Pintal, Yu. S., Vereshhagin, M. B. (2010). Otsenka effektivnosti i tselesoobraznosti diagnostiki vysokovol'tnykh vvodov na osnove opyta ekspluatatsii. Ekaterinburg: Izdatel'skiy dom «Avtograf», 232.
Rubanenko, O. Ye., Humeniuk, O. I. (2011). Vysokovoltni vvody. Konstruktsiia, ekspluatatsiia, diahnostyka i remont. Vinnytsia: VNTU, 183.
Sedunin, A. M., Chalov, I. A., Sidel'nikov, L. G. (2011). Klassifikatsiya vysokovol'tnykh vvodov silovykh transformatorov i problemy ikh ekspluatatsii na predpriyatiyakh gornoy promyshlennosti. Gornoe oborudovanie i elektromekhanika, 12, 24–30.
L'vov, M. Yu. (2000). Kolloidno-dispersnye protsessy v vysokovol'tnykh germetichnykh vvodakh transformatorov. Elektricheskie stantsii, 4, 49–52.
Snetkova, O. V. (2004). Opyt diagnostiki maslonapolnennykh vvodov 110–500 kV v OAO «Mosenergo». Elektro, 2, 39–42.
Arbuzov, R. S., Zhivodernikov, S. V., Lavrov, V. Yu., Ovsyannikov, A. G., Tarasov, A. G., Tolchin V. M. et. al.; Tolchin, V. M. (Ed.) (2012). Problemnoe oborudovanie i problemy diagnostirovaniya. Diagnostika elektricheskikh ustanovok: Materialy Sed'mogo izdaniya nauchno-prakticheskogo seminara Obshhestvennogo Soveta spetsialistov Sibiri i Vostoka po problemam diagnostiki elektricheskikh ustanovok. Khabarovsk, 61–78.
Ovsyannikov, A. G., Maryushko, E. A. (2014). Problemy ekspluatatsii i diagnostirovaniya vvodov s RIP-izolyatsiey. Energoekspert, 3, 22–26.
Davidenko, I. V. (2009). Opredelenie dopustimykh znacheniy kontroliruemykh parametrov maslonapolnennogo oborudovaniya na osnove massiva nablyudaemykh dannykh. Elektrichestvo, 6, 10–21.
Davidenko, I. V. (2006). Issledovanie pokazateley, opisyvayushhikh rabochee sostoyanie maslonapolnennykh vvodov, metodami matematicheskoy statistiki. Izvestiya vysshikh uchebnykh zavedeniy. Severo-Kavkazskiy region: Tekhnicheskie nauki, 15, 31–33.
Zakharov, A. V. (2001). Obnaruzhenie defektov silovykh maslonapolnennykh transformatorov kak protsedura proverki statisticheskikh gipotez. Novoe v rossiyskoy energetike, 2, 19–28.
Shutenko, O. V. (2017). Opredelenie znacheniy granichnykh kontsentratsiy rastvorennykh v masle gazov metodom minimal'nogo riska. Elektrichestvo, 8, 50–60.
Shutenko, O. (2017). Determine the boundary value of the concentration of gases dissolved in oil of method minimum risk. 2017 IEEE First Ukraine Conference on Electrical and Computer Engineering (UKRCON). Kyiv, 468–472.
Levin, M. N. (2013). Statisticheskiy metod raspoznavaniya defektov v silovykh transformatorakh pri ikh tekhnicheskom obsluzhivanii po sostoyaniyu. Promyshlennaya energetika, 8, 37–41.
Felea, I., Secui, D., Oltean, M. (2011). The impact analyze of electric stress level in content of insulating oil gases in power transformers. Journal of sustainable energy, 2 (4), 7–12.
Shutenko, O. V., Baklai, D. N. (2014). Analiz zakoniv rozpodilu kontsentratsii haziv, rozchynenykh v masli vysokovoltnykh transformatoriv nehermetychnoho vykonannia. Visnyk NTU «KhPI», 24 (067), 102–117.
Shutenko, O. V., Baklay, D. N. (2012). Issledovanie zakonov raspredeleniya fiziko-khimicheskikh pokazateley transformatornykh masel. Vіsnik NTU «KHPІ», 23, 170–186.
Shutenko, O. V., Baklay, D. N. (2013). Osobennosti statisticheskoy obrabotki rezul'tatov ekspluatatsionnykh ispytaniy pri issledovanii zakonov raspredeleniya rezul'tatov khromatograficheskogo analiza rastvorennykh v masle gazov. Vіsnik NTU «KHPІ», 60 (1033), 136–150.
Gmurman, V. E. (1977). Teoriya veroyatnostey i matematicheskaya statistika. Moscow: Vysshaya Shkola, 479.
Shutenko, O. V., Baklay, D. N. (2013). Planirovanie eksperimental'nykh issledovaniy v elektroenergetike. Metody obrabotki eksperimental'nykh dannykh. Kharkiv: NTU «KHPI», 268.
Johnson, N. L., Leone, F. C. (1977). Statistics and Experimental Design in Engineering and the Physical Sciences. Vol. 1 (Probability & Mathematical Statistics S.). John Wiley & Sons Inc, 618.
Scheffe, H. (1999). The Analysis of Variance. Wiley-Interscience, 477.
Normy vyprobuvannia elektroobladnannia: SOU-N EE 20.302:2007. (2007). Prykaz Minpalyvenerho 15.01.2007. No. 13. Kyiv: OEP «HRYFRE», Ministerstvo palyva ta enerhetyky Ukrainy, 262.
Tret'yak, L. N. (2004). Obrabotka rezul'tatov nablyudeniy. Orenburg: GOU OGU, 171.
Feilat E. A. Analysis of the Root Causes of Transformer Bushing Failures // International Journal of Computer, Electrical, Automation, Control and Information Engineering. 2013. Vol. 7. P. 791–796.
Anglhuber M., Velásquez J. L. Contreras Dispersing the clouds – gain clear insight into your bushings using advanced diagnostics method // Transformer Magazine. Special Edition: Bushing. 2017. P. 126–132.
Otsenka effektivnosti i tselesoobraznosti diagnostiki vysokovol'tnykh vvodov na osnove opyta ekspluatatsii / Kassikhin S. D. et. al. Ekaterinburg: Izdatel'skiy dom «Avtograf», 2010. 232 p.
Rubanenko O. Ye., Humeniuk O. I. Vysokovoltni vvody. Konstruktsiia, ekspluatatsiia, diahnostyka i remont: monograph. Vinnytsia: VNTU, 2011. 183 p.
Sedunin A. M., Chalov I. A., Sidel'nikov L. G. Klassifikatsiya vysokovol'tnykh vvodov silovykh transformatorov i problemy ikh ekspluatatsii na predpriyatiyakh gornoy promyshlennosti // Gornoe oborudovanie i elektromekhanika. 2011. Issue 12. P. 24–30.
L'vov M. Yu. Kolloidno-dispersnye protsessy v vysokovol'tnykh germetichnykh vvodakh transformatorov // Elektricheskie stantsii. 2000. Vol. 4. P. 49–52.
Snetkova O. V. Opyt diagnostiki maslonapolnennykh vvodov 110–500 kV v OAO «Mosenergo» // Elektro. 2004. Issue 2. P. 39–42.
Problemnoe oborudovanie i problemy diagnostirovaniya / Arbuzov R. S. et. al.; ed. by Tolchin V. M. // Diagnostika elektricheskikh ustanovok: Materialy Sed'mogo izdaniya nauchno-prakticheskogo seminara Obshhestvennogo Soveta spetsialistov Sibiri i Vostoka po problemam diagnostiki elektricheskikh ustanovok. Khabarovsk, 2012. P. 61–78.
Ovsyannikov A. G., Maryushko E. A. Problemy ekspluatatsii i diagnostirovaniya vvodov s RIP-izolyatsiey // Energoekspert. 2014. Issue 3. P. 22–26.
Davidenko I. V. Opredelenie dopustimykh znacheniy kontroliruemykh parametrov maslonapolnennogo oborudovaniya na osnove massiva nablyudaemykh dannykh // Elektrichestvo. 2009. Issue 6. P. 10–21.
Davidenko I. V. Issledovanie pokazateley, opisyvayushhikh rabochee sostoyanie maslonapolnennykh vvodov, metodami matematicheskoy statistiki // Izvestiya vysshikh uchebnykh zavedeniy. Severo-Kavkazskiy region: Tekhnicheskie nauki. 2006. Issue 15. P. 31–33.
Zakharov A. V. Obnaruzhenie defektov silovykh maslonapolnennykh transformatorov kak protsedura proverki statisticheskikh gipotez // Novoe v rossiyskoy energetike. 2001. Issue 2. P. 19–28.
Shutenko O. V. Opredelenie znacheniy granichnykh kontsentratsiy rastvorennykh v masle gazov metodom minimal'nogo riska // Elektrichestvo. 2017. Issue 8. P. 50–60.
Shutenko O. Determine the boundary value of the concentration of gases dissolved in oil of method minimum risk // 2017 IEEE First Ukraine Conference on Electrical and Computer Engineering (UKRCON). Kyiv, 2017. P. 468–472.
Levin M. N. Statisticheskiy metod raspoznavaniya defektov v silovykh transformatorakh pri ikh tekhnicheskom obsluzhivanii po sostoyaniyu // Promyshlennaya energetika. 2013. Issue 8. P. 37–41.
Felea I., Secui D., Oltean M. The impact analyze of electric stress level in content of insulating oil gases in power transforrmers // Journal of sustainable energy. 2011. Vol. 2, Issue 4. P. 7–12.
Shutenko O. V., Baklai D. N. Analiz zakoniv rozpodilu kontsentratsii haziv, rozchynenykh v masli vysokovoltnykh transformatoriv nehermetychnoho vykonannia // Visnyk NTU «KhPI». 2014. Issue 24 (067). P. 102–117.
Shutenko O. V., Baklay D. N. Issledovanie zakonov raspredeleniya fiziko-khimicheskikh pokazateley transformatornykh masel // Vіsnik NTU «KHPІ». 2012. Issue 23. P. 170–186.
Shutenko O. V., Baklay D. N. Osobennosti statisticheskoy obrabotki rezul'tatov ekspluatatsionnykh ispytaniy pri issledovanii zakonov raspredeleniya rezul'tatov khromatograficheskogo analiza rastvorennykh v masle gazov // Vіsnik NTU «KHPІ». 2013. Issue 60 (1033). P. 136–150.
Gmurman V. E. Teoriya veroyatnostey i matematicheskaya statistika. Moscow: Vysshaya Shkola, 1977. 479 p.
Shutenko O. V., Baklay D. N. Planirovanie eksperimental'nykh issledovaniy v elektroenergetike. Metody obrabotki eksperimental'nykh dannykh: textbook. Kharkiv: NTU «KHPI», 2013. 268 p.
Johnson N. L., Leone F. C. Statistics and Experimental Design in Engineering and the Physical Sciences. Vol. 1 (Probability & Mathematical Statistics S.). John Wiley & Sons Inc, 1977. 618 p.
Scheffe H. The Analysis of Variance. Wiley-Interscience, 1999. 477 p.
Normy vyprobuvannia elektroobladnannia: SOU-N EE 20.302:2007: prykaz Minpalyvenerho 15.01.2007. No. 13. Kyiv: OEP «HRYFRE», Ministerstvo palyva ta enerhetyky Ukrainy, 2007. 262 p.
Tret'yak L. N. Obrabotka rezul'tatov nablyudeniy: textbook. Orenburg: GOU OGU, 2004. 171 p.

matches: V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V.


In a recent filing in its lawsuit against HathiTrust, the Authors Guild argues [pdf] that HathiTrust and its partner defendant colleges and universities cannot claim its planned orphan works digitization program qualifies as a fair use because the libraries actions fail to qualify for Section 108. Further, the Guild argues, by failing to qualify for the Section 108 exemption, the libraries automatically disqualify themselves from being able to claim a fair use defense.
If the Authors Guild’s fair use argument prevailed, however, it not only would guarantee that the Authors Guild wins the HathiTrust lawsuit, but it also would disrupt the digitization programs of virtually every library, museum, or university in the United States.
There are several reasons, however, why the Authors Guild’s fair use argument should not prevail. Researching copyright’s legislative history provides many of them.
Arguments based upon legislative history are difficult to make in copyright because, as Jessica Litman has written, copyright laws history historically has been whatever large, multinational content corporations have wanted it to be. Even with that caveat, however, the legislative history of Section 108 is instructive.
The Register of Copyrights has recommended that the committee report describe the relationship between this section and the provisions of section 108 relating to reproduction by libraries and archives. The doctrine of fair use applies to library photocopying, and nothing contained in section 108 “in any way affects the right of fair use.” No provision of section 108 is intended to take away any rights existing under the fair use doctrine. To the contrary, section 108 authorizes certain photocopying practices which may not qualify as a fair use.
Senate Report No. 94-473 at 67.
William Patry has interpreted this to say that if certain library copying fails to qualify under Section 108, then that copying would be evaluated under a fair use analysis. Patry on Copyright § 11.3.
The Authors Guild does not mention Senate Report No. 94-473 in its memorandum. Instead, the Guild cites a January 1983 report Report of the Register of Copyrights, Library Reproduction of Copyrighted Works (“1983 Report”) [pdf] to support its claim that Section 108 and Section 107 are (or should be) mutually exclusive.
Nothing in [Section 108] … in any way affects the right of fair use as provided by section 107, or any contractual obligations assumed at any time by the library or archives when it obtained a copy or phonorecord of a work in its collections.
Section 108(f)(4) is what practitioners refer to as a “savings clause.” In legislation, a savings clause is language lawmakers insert into a bill that effectively says “if one part of this law is illegal or is considered to be legally invalid, the rest of the law will remain valid and enforceable.” The Section 108(f)(4) savings clause is supposed to reaffirm fair use principles and the availability of those principles to libraries.
[T]o read the savings clause as permitting ‘post-108’ reliance on fair use as if no § 108 copying had occurred is to come dangerously close to reading § 108 out of the statute. Given that Congress deemed Section 108 “necessary to exempt much library photocopying from copyright liability, and since Congress did not likely intend to construct complex mechanisms in most of the section only to render them moot via subsection (f)(4), that result is implausible.
Authors Guild memo at 23. The quote comes from page 98 of the 1983 Report.
There is ample evidence, however, that the Authors Guild is selectively reading the 1983 report.
First, the Guild’s quote in its memo fails to identify the origins of the “fair use and Section 108 are mutually exclusive” theory. That theory never has been codified as law, nor has it been an opinion of the Register of Copyrights. Instead, the theory has been an advocacy position that the Association of American Publishers (AAP) has been advancing for more than three decades. 1983 Report at 96. In other words, it has been AAP’s opinion of how to interpret this provision of copyright law, nothing more.
(b) the fair use analysis (conducted only if (a) applies) of this transaction takes into account the “108” copying which has already occurred.
The first part of the test is important. … Part (a) means that, for either type of transaction — beyond 108 — one should first consider whether fair use could ever apply to such a transaction, i.e., whether, if there were no §108, such a transaction could be lawful. In the examples given, one would likely conclude that the replacement of a lost, stolen, damaged, or deteriorating copy could be a fair use, while all ILL copying, a form of systematic copying lawful only via the proviso, could not be a fair use. This means that for copying beyond 108, the examination of a specific transaction (part (b) of the test) would occur with respect to replacement copying, but not with respect to systematic copying, which could never be fair use.
Although it would be preferable to delete section 108(f)(4) from the statute, as it serves only to give rise to the erroneous interpretation of section 107 as a “spillover” provision after section 108 limits have been reached, its inclusion suggests that section 107 is available, when, as the Register commented, the “transaction is of a type which would be considered fair use in the absence of § 108,” e.g., where the copying is for nonprofit educational purposes but the library collection is not open to the public or the distribution of the work does not include a notice of copyright – circumstances that would disqualify a library from receiving section 108 treatment. Construed this way rather than as covering copying “beyond section 108,” section 108(f)(4), while still unnecessary, is at least consonant with the provisions of both sections. If one could copy up to the limit allowed in section 108 and the CONTU guidelines and then turn to section 107 to permit additional copying (and pretend that the copies made under Section 108 did not take place), multiple copying would never be multiple but rather an infinite succession of single copies while factors three and four in section 107 … would always have to be considered in relation to a single copy and not to the multiple copies, contrary to the facts and the law.
Patry on Copyright § 11.4.
As a result, it seems clear that any theory in which the Copyright Act’s Section 108 limitations and fair use are mutually exclusive is one that has been perpetuated exclusively by large publishers, but also one that has failed to find doctrinal or legislative support.


The Bankruptcy Appellate Panel of the U.S. Court of Appeals for the Sixth Circuit recently held that a mortgage foreclosure deficiency judgment lien may be avoided under 11 U.S.C. § 522(f)(2), reversing the bankruptcy court's ruling to the contrary.
The debtor filed a chapter 13 bankruptcy, listing her residence in Ohio on her schedules with a value of $147,630. She also claimed the residence as exempt homestead in the amount of $132,900, the maximum allowed pursuant to Ohio law.
On her Schedule D, the debtor listed judicial or judgment liens as well as a secured claim held by the County Treasurer for unpaid taxes as encumbrances on her homestead. The schedules did not reflect a mortgage on the home, but the debtor's statement of financial affairs reflected a completed foreclosure action.
The debtor converted her case to a Chapter 7 liquidation, and filed a motion to avoid the liens on the basis that they impaired her homestead exemption.
At the hearing on the motion, the bankruptcy court "expressed concern that Debtor willfully allowed real estate taxes … to remain unpaid to create an impairment to her homestead exemption [and] ordered Debtor to file a supplemental brief on the issue."
After briefing, the bankruptcy court entered an order granting in part and denying in part the debtor's motion to avoid the liens. Instead of addressing the willful impairment issue that the bankruptcy court asked for briefs on, it held that under the § 522(f) the debtor's homestead exemption was impaired as to the two smaller liens, one for $1,889.72 and the other for $2,975, and avoided those liens.
The bankruptcy court, however, denied the motion as to large lien in the amount of $141,013.65 because it arose out of a mortgage foreclosure and §522(f)(2)(C) prohibited the avoidance of such liens. The debtor appealed.
On appeal, the Sixth Circuit first rejected the debtor's argument that the bankruptcy court erred by denying the motion to avoid liens, given that nobody objected to the relief requested, reasoning that the bankruptcy court had an independent obligation to consider the merits of the motion, regardless of whether any objection was raised.
The Appellate Court then turned to whether § 522(f)(2)(C) prohibits the avoidance of a judicial lien arising from a mortgage foreclosure deficiency judgment.
This subsection provides that a debtor may avoid a lien to the extent that it impairs the debtor's homestead exemption, if such lien is "a judicial lien, other than a judicial lien that secures a debt of a kind that is specified in section 523(a)(5)." It then provides a formula for calculating the degree of impairment, but goes on to provide an exception that "[t]his paragraph shall not apply with respect to a judgment arising out of a mortgage foreclosure."
The Sixth Circuit noted that there is a "split in authority" on the "purely legal question of whether a mortgage deficiency judgment lien is a 'judgment arising out of a mortgage foreclosure' within the meaning of § 522(f)(2)(C)." The Court also noted that the "overwhelming majority of courts" have held that mortgage deficiency liens are not judgments arising out of a mortgage foreclosure and thus are avoidable, with only two bankruptcy rulings in Connecticut in the minority.
After analyzing the different rationales relied upon by courts in the majority, which include textual analysis of § 522(f), reliance on state foreclosure law differentiating between equitable foreclosure claims and legal deficiency claims, or a combination thereof, the Sixth Circuit, found "that § 522(f)(2)(C) is unambiguous, and no review of state law or legislative history is necessary or appropriate to interpret its meaning."
Relying on general principles of statutory construction, the Court held that, interpreting § 522(f)(2)(C) according to its plain meaning and structure, "it does not preclude avoidance of mortgage deficiency judgment liens. Rather, § 522(f)(2)(C) 'clarifies that the entry of a foreclosure judgment does not convert the underlying consensual mortgage into a judicial lien which may be avoided."
Accordingly, the bankruptcy court's ruling "that § 522(f)(2)(C) precludes avoidance of a deficiency judgment lien" was reversed, and the case remanded to the bankruptcy court for entry of an order consistent with the Court's opinion.