                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-15-1995

Harris v City of Phila
Precedential or Non-Precedential:

Docket 93-1988




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     UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                          No. 93-1988




MARTIN HARRIS; JESSE KITHCART; WILLIAM DAVIS; RANDALL CUMMINGS;
  EVELYN LINGHAM; ESTRUS FOWLER; TYRONE HILL; NATHANIEL CARTER

                              v.

                     THE CITY OF PHILADELPHIA;
     JOAN REEVES, in her official capacity as Commissioner
of The Department of Human Services of the City of Philadelphia;
             ALBERT F. CAMPBELL; ROSITA SAEZ-ACHILLA;
       GENECE E. BRINKLEY, ESQ.; REV. PAUL M. WASHINGTON;
       M. MARK MENDEL; HON STANLEY KUBACKI; MAMIE FAINES,
each in his or her official capacity as a member of the Board of
           Trustees of the Philadelphia Prison System;
        J. PATRICK GALLAGHER, in his official capacity as
        Superintendent of the Philadelphia Prison System;
             HARRY E. MOORE, in his official capacity
                  as Warden of Holmesburg Prison;
           WILHELMINA SPEACH, in her official capacity
                 as Warden of the Detention Center;
            PRESS GROOMS, in his official capacity as
                Warden of the House of Corrections;
         RAYMOND E. SHIPMAN, in his official capacity as
       Managing Director of the City of Philadelphia; and
              HON. EDWARD G. RENDELL, in his official
          capacity as Mayor of the City of Philadelphia

              Theodore Levine, Albert F. Campbell,
        Rosita Saez-Achilla, Genece E. Brinkley, Esq.,
        Rev. Paul M. Washington, M. Mark Mendel, Esq.,
   Hon. Stanley Kubacki, Mamie Faines, J. Patrick Gallagher,
        Harry E. Moore, Wilhelmina Speach, Press Grooms
           Raymond E. Shipman, Hon. Edward G. Rendell
                  and the City of Philadelphia,

                                        Appellants



        On Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                       (D.C. No. 82-cv-01847)


                     Argued September 14, 1994

          Before:    SLOVITER, Chief Judge, MANSMANN and
                        ALITO, Circuit Judges

                     (Filed February 15, l995 )

Mark A. Aronchick (Argued)
Gary A. Rosen
Randy Karafin Hubert
Hangley, Connolly, Epstein,
Chicco, Foxman & Ewing
Philadelphia, PA 19102

James B. Jordan
Office of City Solicitor
Philadelphia, PA 19102

John W. Morris
Philadelphia, PA    19102-4813

          Attorneys for Appellants

Sarah B. Vandenbraak
Ron Eisenberg
Office of District Attorney
Philadelphia, PA 19102

          Attorney for Amicus-Appellant Lynne Abraham,
          District Attorney of Philadelphia County

Philip Lebowitz (Argued)
David Richman
Samuel J.B. Angell
Pepper, Hamilton & Scheetz
Philadelphia, PA 19103-2799

          Attorneys for Appellees
                         OPINION OF THE COURT



SLOVITER, Chief Judge.

          This is one of a group of appeals by the City of

Philadelphia and its officials responsible for the operation of

the Philadelphia Prison System (referred to collectively as City

of Philadelphia) from orders of the district court holding it in

contempt and imposing fines or stipulated penalties because of

its failure to comply with various provisions of consent decrees

or related orders designed to ameliorate the overcrowded

conditions in the Philadelphia prison system.

          In a separate opinion filed today, we affirm the order

imposing stipulated penalties of $584,000 for the City's lengthy

delay in submitting a Facilities Audit and Ten-Year Plan which it

had undertaken to prepare as part of the Prison Planning Process,

the long-term solution to overcrowding.    See Harris v. City of

Philadelphia, Nos. 93-1997, 93-2116, & 93-2117 (3d Cir.          ,

1995) (Harris V).   In the same opinion, we reverse the district

court's dismissal as a sanction of the City's Motion to Modify

the 1986 and 1991 Consent Decrees.    In a second opinion filed

today, we affirm the finding of contempt and imposition of a

$125,000 fine for the City's failure to meet certain occupancy

standards in the substance and alcohol abuse treatment facility,

a program the City undertook as one of the short-term solutions

to the prison population problem.    See Harris v. City of
Philadelphia, No. 94-1286 (3d Cir.        , 1995) (Harris VI).
          This appeal is from the finding of contempt and the

imposition of a $106,000 penalty for the City's unilateral change

in the procedure for designation of eligible pretrial detainees

for release, another of the short-term solutions to prison

overcrowding.
                               I.

                           BACKGROUND
           The facts underlying these cases are set forth in

detail in Harris V, typescript op. at 5-9.    Briefly, the

plaintiff class of inmates in the Philadelphia prison system and

the City entered into a Consent Decree approved by the district

court (the "1986 Consent Decree") to resolve the pending

complaint alleging unconstitutional prison overcrowding.1    The

City agreed that while it was working on a long term solution to

increase the number of prison facilities and beds, it would limit

the number of inmates in the current facilities.   Thus, the 1986

Consent Decree set a maximum allowable population ("MAP") by

July 13, 1987 for the Philadelphia prison system of 3,750

inmates.   The City agreed that if the inmate population exceeded

the maximum it would seek the release of pretrial detainees held

on the lowest bail or sentenced prisoners who had less than sixty

days remaining to serve on their sentences.   App. at 93.

However, the 1986 Consent Decree expressly provided that the City

was not "to seek the release of any person whose release would

constitute an imminent threat to public safety or to the inmate's

own health, safety or welfare," or "any person charged with, or

convicted of, murder or forcible rape."   App. at 93.   If the MAP

were still exceeded, the City agreed to limit new admissions to

the prisons except for persons charged with or convicted of

certain enumerated offenses, hence its denomination as a

qualified admissions moratorium.
1
 . See Harris v. Reeves, 761 F. Supp. 382, 384-90 (E.D. Pa.
1991) (recounting the history of the litigation and efforts to
alleviate overcrowding prior to the adoption of the 1991 Consent
Decree).
           Despite the City's efforts between 1986 and 1988 to

reduce the prison population, the district court was advised that

on June 3, 1988 there were 3,981 inmates in the Philadelphia

prisons, 3,035 of whom were pretrial detainees.    As a result, on

June 6, 1988 the district court ordered that the qualified

admissions moratorium agreed to in the 1986 Consent Decree go

into effect, with certain modifications.    See Supp. App. at 1431-

34.   This barred admission until the Philadelphia prison

population was within the MAP of any additional inmates except

for persons charged with murder, attempted murder, forcible rape,

attempted rape, involuntary deviate sexual intercourse,

corrupting the morals of a minor, arson, robbery, kidnapping,

aggravated assault, or a crime involving the use of a gun or

knife, or felony drug charges involving specified amounts of

narcotics.   Supp. App. at 1431-32.   The same order provided for

release of some inmates on city-provided bail but the court

stated that "[n]otwithstanding the agreement of the parties" it

would not "reduce the current population by releasing on parole

various categories of sentenced inmates."    Supp. App. at 1433.

           Thereafter, at the request of the District Attorney,

who had been granted objector status in the litigation, the court

entered a series of orders excepting additional categories of

defendants from the qualified admissions moratorium, including

those accused of domestic violence and abuse, intimidation of

witnesses or victims, those with two or more open bench warrants

on non-summary offenses, and those with narcotics offenses

involving lower quantities than those previously specified.     See
Harris v. Reeves, 761 F. Supp. 382, 387 (E.D. Pa. 1991).        Because

these modifications to the moratorium increased the prison

population, the court ordered certain "compensatory measures,"

including release of certain pretrial detainees.     See id..

          Nonetheless, the prison population continued to grow.

The court stated that it could "no longer, in good conscience,

allow the prison population to remain at this dangerously high

level," Supp. App. at 1296-1301, and by Order dated April 17,

1989 ("April 1989 Order") instituted new procedures for

additional release of pretrial detainees.   Supp. App. at 1442.

This order required the City's Prison Management Unit ("PMU"), a

unit established by the City at court direction, to submit the

names of the inmates proposed to be released to the Special

Master and the District Attorney, who was to forward objections,

if any, to a listing to the Special Master within 72 hours.        The

April 1989 Order listed the categories of pretrial detainees

eligible for release, and expressly provided that detainees

charged with the enumerated offenses and domestic violence and

abuse offenses were not to be released.   Supp. App. at 1440-43.

          These steps stabilized the prison population between

4,600 and 4,700 for a few months but it soon surged again.        By

August 1990 the Philadelphia prison population had risen to

approximately 5000 inmates.   See Supp. App. at 1385.   By order

entered September 7, 1990 following a hearing, the court ordered

additional steps to reduce the prison population.2    In addition,

2
 . The September 7, 1990 Order directed, inter alia, that
certified youth offenders not be admitted to the prisons and that
on September 21, 1990 the court increased the quantity of

narcotics charged against defendants excepted from the admissions

moratorium, see Supp. App. at 1447-48, and issued another order

detailing the provisions of the then-existing qualified

admissions moratorium and release mechanism.    See App. at 100-08.

            The population stood at 4,697 when the court approved a

new Stipulation and Agreement negotiated by the parties, which it

entered as an order on March 11, 1991 (the "1991 Consent

Decree").    The raison d'être for the 1991 Consent Decree was the

City's suspension of plans to build the 440-bed detention

facility required under the 1986 Consent Decree.     The background

leading to the 1991 Consent Decree is discussed in the district

court's comprehensive opinion in Harris v. Reeves, 761 F. Supp.

at 382-89, approving the parties' Stipulation and Agreement as

reasonable.   The 1991 Consent Decree effected a number of

measures, providing both long-term and short-term relief,

including, as relevant here, continuance of the qualified

admissions moratorium as set forth in the September 21, 1990

Order and modification of the release mechanism for pretrial

detainees.    App. at 109-46.   It is this release mechanism that

forms the basis for the dispute at issue here.

            Paragraph 17(a) of the 1991 Consent Decree requires the

City to "designate and submit" to the Special Master the names of

inmates "who meet the criteria of Paragraph 4.E.(i)-(iii) of the
(..continued)
the City petition the state courts for early release of sentenced
inmates who were within sixty days of their scheduled release.
See Harris v. Reeves, 761 F. Supp. at 388.
September 21, 1990 Order which provides for the release of

[certain categories of inmates]."3   App. at 116.    Those with

enumerated offenses ("murder, attempted murder, forcible rape,

attempted rape, involuntary deviate sexual intercourse,

corrupting the morals of a minor, arson, kidnapping, aggravated

assault, a crime of violence committed or attempted with a

firearm, knife or explosive, and escape from custody," and

certain domestic violence and abuse offenses) are not eligible

for release.   App. at 116 (¶ 17(a)(2)) (incorporating by

reference ¶¶ 3A & B of September 21, 1990 Order, App. at 101-02.)

          Paragraph 17(b) requires the City to submit to the

Special Master no fewer than thirty-five (35) names per day, at

least five (5) days per week, whenever the population is in

excess of 3,750.   App. at 117.   The names of "those designated

and submitted" by the PMU are to be provided to the District

Attorney who "then shall have seventy-two (72) hours to

communicate in writing . . . any alleged errors in application of

the release criteria . . . or any objections to the release of

any inmate based on considerations of public safety and supported

by substantial evidence."   App. at 117 (¶ 17(d)).
3
 .    Paragraph 4.E.(1)-(3) of the September 21, 1990 Order
provided that "Release categories shall be: (1) a person
admitted to prison under prior orders of the court who is still
detained but who would not be admitted under this order as now
modified; (2) a prisoner held in default of the lowest amount of
percentage bail as necessary to reduce the population in all
institutions to the maximum allowable. If inmates considered for
release under this paragraph are held in default of equal amounts
of bail, preference shall be given to the inmate held the longest
time[;] (3) a person charged with offenses enumerated in
paragraphs 3A and B shall not be released pursuant to this
paragraph." App. at 104.
            The Special Master, who is required to "direct the

release of all inmates who meet the criteria set forth in

Paragraph 17.a," App. at 117, has very limited discretion; he can

deny a petition "if, but only if," the District Attorney objects

to a particular release on public safety grounds and designates

another eligible pretrial detainee as a substitute.     App. at 117

(¶ 17(e)).    The City must comply with a release order within

twenty-four hours after receiving it.   App. at 118 (¶ 17(f)).

The 1991 Consent Decree provides that the City may formulate and

submit to the court other criteria and procedures for release of

inmates as a possible alternative or concurrent mechanism.       App.

at 124 (¶ 30).

            After the District Attorney unsuccessfully sought to

block or delay effectuation of the 1991 Consent Decree by appeal,

the district court ordered the new release mechanism implemented

on November 25, 1991.    In a memorandum dated December 6, 1991 to

the PMU and the City Solicitor, the Special Master summarized the

release procedures in place and noted that many of the inmates

for whom he would approve release orders would not be immediately

released.    He explicitly referred, inter alia, to "the inmate

[who] has other holds such as detainers, sentence deferred cases,

or more serious charges" (hereafter referred to as "other holds")

as an example of an inmate who would be designated for release

but was not to be released.    App. at 502.   Such inmates would

"remain in custody until the other holds are disposed" of, i.e.

presumably until the more serious charge, which would be one of

the enumerated charges, was dropped or otherwise disposed of or
until inmates on detainer or writs were transferred to the

jurisdiction that issued them.

          The 1991 Consent Decree contained a stipulated fine of

$100.00 a day for each inmate "who should be designated for

release in accordance with Paragraph 17 but is not so

designated."   App. at 119 (¶ 19(b)(2)).   But "[d]efendants shall

not incur fines . . . if they submit to the Special Master at

least thirty-five (35) names per day meeting the other

requirements of Paragraph 17, even if a greater number of inmates

meets the criteria set forth in Paragraph 17.a."   App. at 119

(¶ 19(c)).

          Between the weeks ending November 25, 1991 and June 29,

1992 the City included in its daily list of thirty-five names

pretrial detainees who had any charge that was eligible for

release under what has come to be known as "Harris v. Reeves

Sign-Own Bail" (generally shortened to "HvR-SOB"),4 even though

the detainee may have been subject to other holds or charges

which would prevent an immediate release.    App. at 479.   The

City's list of 175 names included inmates who were not eligible

for release at that time as well as duplicative names because

inmates were listed by charge so that a single inmate charged

with more than one non-enumerated charge could be listed several

times.   Therefore, many fewer than the 175 listed were released.


4
 . Under the "Sign-Own Bail" program the district court had
directed the City to post bail for certain inmates held in
default of bail, principally those with low designated bail or
held in prison for lengthy periods.
The effect of the procedure followed before July 1992 was to

reduce bail on those charges that were not excepted from release,

so that inmates with "other holds" could be released or

transferred to another jurisdiction as soon as the basis for the

"other hold" was cleared.

          The events that gave rise to this particular contempt

action began in early July 1992 when PMU revised its procedures

in preparing the release lists following a meeting in the City

Solicitor's office between Jeanne Bonney, the Director of PMU,

and three members of the District Attorney's staff.   There were

also subsequent communications between Bonney and James Jordan,

Chair of the Litigation Group of the City Solicitor's office, Ann

Pasquariello, a Deputy City Solicitor, and a Special Assistant to

the Mayor.   App. at 482.   Under the new procedure instituted, PMU

only listed inmates who were eligible for immediate release.

App. at 483.   In addition, PMU stopped designating those

detainees who the City deemed to be "a danger to themselves or to

the community."   App. at 483.

          The new policy was formally defined in a memorandum to

PMU dated August 5, 1992 by the City Solicitor's representative,

Jordan, who directed that PMU list by defendants, not by charge,

stating
          Please discontinue the prior practice of
          listing by the charged offense irrespective
          of whether the defendant in question is
          absolutely ineligible for release under the
          applicable criteria. Thus, you should not
          list any defendant with any outstanding
          charge or other matter which would disqualify
          that inmate from release under the provisions
          of the relevant Harris orders.
App. at 426.    Jordan specified the following four categories of

detainees who had previously been listed and who were now not to

be listed for release: (1) those with "other holds," (2) those

with state or federal detainers who are being held on enumerated

offenses, (3) those not eligible for release on the face of their

charges, and (4) those who are a danger to themselves or to the

community.     App. at 426-27, 485.

           Jordan also notified the Special Master and counsel for

plaintiffs of the policy changes on August 5, 1992, stating, "I

have instituted these changes in policy based upon my careful

reading of the appropriate consent decrees, orders, stipulations

and opinions."    App. at 530.    Plaintiffs' counsel objected to

these changed procedures, and the Special Master notified the

court.   App. at 525-29.5

             In response to the plaintiffs' objections, on

September 24, 1992 the City Solicitor directed PMU to resume

listing all "persons who are a danger to themselves or the

community" but to submit those names separately under protest.

PMU has since submitted "under protest, pending modification of

the Decree," a "D" list with those inmates who need special

mental health treatment and a "B" list with those inmates held on

bail in excess of $75,000.       App. at 440-41, 492-93.


5
 . Starting the week of August 10, 1992, PMU prepared two lists
of inmates--one was the release list and the other was the list
of inmates who would have been designated before the change in
procedure instructed in Jordan's August 5 memorandum. App. at
486.
          Director of PMU Bonney wrote a memorandum dated August

10, 1992 to Commissioner J. Patrick Gallagher and Deputy

Commissioner Thomas Costello predicting that as a result of the

City's change in procedure, there would be a substantial increase

in pretrial inmate days, PMU's costs for continuous research and

tracking would double, and that "at least 63 additional persons

will remain in custody each week for an additional 30 days: an

average 252 inmates per month, or 7,560 inmate days."      App. at

552-53.   In fact, during the weeks beginning August 10 through

September 28, 1992, the number of inmates submitted by the City

each week ranged from 45 to 101.    App. at 493-94.

          Plaintiffs filed a Motion on October 16, 1992 for

Contempt Sanctions Against Defendants for Failure to Comply with

the Court's March 11, 1991 Order.    Supp. App. at 1501-14.    The

parties submitted the matter for disposition on a Stipulation of

Facts and the deposition of the Director of PMU.      The parties

stipulated that from the week of July 6, 1992 through the week of

November 16, 1992, the City would have listed 1,060 additional

detainees had it followed its previous listing practices.      At the

hearing on contempt, the district court was visibly unimpressed

with the City's argument that because it had not violated a clear

and unambiguous provision of the consent decree, it should not be

held in contempt for its unilateral implementation of the changes

in procedures,6 App. at 689-712, but the court nevertheless

6
 . The court stated "[i]t's not clear to me why the matter
wasn't raised with the Court before the action was taken if you
were in doubt as to what the obligations were." App. at 689.
entertained arguments from the parties and the District

Attorney's office on the proper interpretation of the provisions

for the release mechanism in the 1991 Consent Decree.     See App.

at 669-732.

           In a Memorandum and Order dated June 14, 1993 the

district court found the City in contempt of the 1991 Consent

Decree and imposed a $106,000 fine, $55,000 which was to be paid

forthwith.    The fine was calculated on the basis of $100 for each

inmate not designated on each release list from July 6, 1992 to

November 16, 1992.   The court ordered that the remainder of the

fine might not be imposed if the City submitted an alternative

plan to the release mechanism by July 30, 1993.    The City paid

the $55,000 fine but did not submit an alternative plan to the

release mechanism and moved for reconsideration of the contempt

finding.   On September 14, 1993, the district court implicitly

denied the motion for reconsideration and imposed the $51,000

balance of the fine.   The City then filed a Motion Requesting

that Contempt Fines Not Be Imposed, which the court denied by a

Memorandum Opinion of February 16, 1994.   The City appeals.
                                II.

                             DISCUSSION

                                 A.

                     Applicable Legal Principles

           The City makes three interconnected arguments on

appeal: first, that the district court failed to find that the

City violated a clear and unambiguous court order for the

implementation of the prisoner release mechanism; second, that
the 1991 Consent Decree does not in fact contain a clear and

unambiguous mandate as to the procedures the City was to follow

in implementing the prisoner release mechanism; and third, that

the district court's legal interpretation of the 1991 Consent

Decree was erroneous.   Thus, the City seeks reversal of the

district court's order of contempt, remission of all penalties, a

declaration that the district court's interpretation of the

consent decree is erroneous, and a holding that the City may

continue to implement its revised release procedures.

           The imposition of contempt is reviewed under an abuse

of discretion standard and will only be disturbed if there is an

error of law or a clearly erroneous finding of fact.    United

States v. Sarbello, 985 F.2d 716, 727 (3d Cir. 1993).    We

determine on a plenary basis whether the district court committed

an error of law.   See Sansom Comm. by Cook v. Lynn, 735 F.2d

1535, 1539 (3d Cir.), cert. denied, 469 U.S. 1017 (1984).7

           The relevant legal principles are not difficult nor in

dispute.   Therefore, we need not pass through the litany of law

relating to the prerequisites for a finding of contempt, which we

have reviewed to the extent pertinent in our opinion today in

Harris V, typescript op. at 35-36.   Instead, we concentrate on

the application of the principle that is at issue.




7
 . In our other Harris opinions today, we discuss and reject the
City's argument that our review of a finding of contempt is
plenary. See Harris V, typescript op. at 21 & n.11; Harris VI,
typescript op. at 17 n.5.
          Specificity in the terms of consent decrees is a

predicate to a finding of contempt, see Inmates of the Allegheny

County Jail v. Wecht, 754 F.2d 120, 129 (3d Cir. 1985), because

"a person will not be held in contempt . . . unless the order has

given him fair warning."   See United States v. Christie

Industries, Inc., 465 F.2d 1002, 1006 (3d Cir. 1972).    This is

reflected in the requirement of Fed. R. Civ. P. 65(d) that an

injunction "shall be specific in terms," and shall describe "in

reasonable detail" the act or acts sought to be restrained, a

rule also applicable to consent decrees.    See Angela R. v.

Clinton, 999 F.2d 320, 325 (8th Cir. 1993).

          The Supreme Court has held that persons may not be

placed at risk of contempt unless they have been given specific

notice of the norm to which they must pattern their conduct.

See International Longshoremen's Ass'n v. Philadelphia Marine

Trade Ass'n, 389 U.S. 64, 76 (1967); see also Granny Goose Foods,

Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 444 (1974);

Schmidt v. Lessard, 414 U.S. 473, 476 (1974); Gunn v. University

Comm. to End the War in Viet Nam, 399 U.S. 383, 388-89 (1970).

          We have summarized the applicable law as follows: "In

order to cite a person for contempt for violating a court order,

two principles, each a corollary of the other, must, among other

requirements, be established.     The first of these is that it must

be proved that the alleged contemnor had knowledge of the order

which he is said to have violated.    The corollary of this

proposition is that the order which is said to have been violated

must be specific and definite."    Eavenson, Auchmuty & Greenwald
v. Holtzman, 775 F.2d 535, 544 (3d Cir. 1985) (quoting In re

Rubin, 378 F.2d 104, 108 (3d Cir. 1967)).    We explained that

these two principles are merged in the general statement that:

"An order may be so vague or indefinite that, even though the

alleged contemnor is chargeable with knowledge of such order, he

cannot be punished for doing what he did in view of lack of

certainty as to what it prohibited or directed."    Holtzman, 775

F.2d at 544 (quoting Rubin, 378 F.2d at 108).

           We decide on a plenary basis whether the consent decree

is ambiguous.   See Fox v. United States Dep't of Hous. & Urban

Dev., 680 F.2d 315, 319-20 (3d Cir. 1982).    The resolution of

ambiguities ought to favor the party charged with contempt.      See

United States on behalf of IRS v. Norton, 717 F.2d 767, 774 (3d

Cir. 1983); Ford v. Kammerer, 450 F.2d 279, 280 (3d Cir. 1971).

In other words, a contempt citation should not be granted if

"there is 'ground to doubt the wrongfulness' of" the defendant's

conduct.   Quinter v. Volkswagen of America, 676 F.2d 969, 974 (3d

Cir. 1982) (citing Fox v. Capital Co., 96 F.2d 684, 686 (3d Cir.

1938)).

           It is because we must find not only that the contemnor

had knowledge of the order but also that the order was "specific

and definite" that a finding of contempt cannot be based merely

on the City's alteration of its prior policy without seeking

court approval or modification, which some language in the

district court's opinion suggests was the basis for its contempt
finding.8   Absent any provision in the 1991 Consent Decree or an

order of the court requiring the City to seek court approval

before modifying its practice, its mere failure to do so before

changing its procedures for implementing the release mechanism is

not alone enough to sustain a contempt finding.

            Courts must be careful not to impose obligations upon

the parties beyond those they have voluntarily assumed.   See,

e.g., Fox, 680 F.2d at 319; Johnson v. Robinson, 987 F.2d 1043,

1046 (4th Cir. 1993); Walker v. United States Dep't of Hous. &

Urban Dev., 912 F.2d 819, 825-26 (5th Cir. 1990).    A consent

decree "must be construed as it is written, and not as it might

have been written had the plaintiff established his factual

claims and legal theories in litigation."    United States v.

Armour & Co., 402 U.S. 673, 682 (1971).

            There is no provision here requiring the City to seek

prior approval from the court before modifying its policy, as

appears in some consent decrees.    See, e.g., Gautreaux v.

Landrieu, 523 F. Supp. 665, 675 (N.D. Ill. 1981) (consent decree

provides that "HUD may change the terms of [contract with private

agency required by consent decree] in the future . . . provided

that none of the services provided for the benefit of eligible

persons will be reduced or modified to their detriment without

8
 .   For example, the court stated, "[t]he court finds the City
in contempt for its unilateral decision to modify the release
mechanism with respect to detainees with 'other holds,'" Addenda
to City's Brief at A-15, and "[t]he court finds the City in
contempt for its unilateral decision to modify the release
mechanism with respect to detainees deemed 'a danger to
themselves or the community.'" Addenda to City's Brief at A-23.
Court approval"), aff'd, 690 F.2d 616 (7th Cir. 1982); Oburn v.

Shapp, 393 F. Supp. 561, 570 (E.D. Pa.) ("if there was . . . a

change in the selection procedure [in related case] the consent

decree in [that case] requires the defendants . . . to submit it

to the court for approval"), aff'd, 521 F.2d 142 (3d Cir. 1975).

We can understand the court's displeasure that the City, which

was in continuous contact with the court9, made "no effort to

determine whether the court shared [its] understanding of the

Stipulation and Agreement before the changes were unilaterally

implemented," Addenda to City's Brief at A-12, but however

discourteous and ultimately counterproductive the City's conduct

was, it was not contemptuous in itself.   Moreover, the City did

notify both the Special Master and the plaintiffs' counsel almost

contemporaneously with its change in policy, so the plaintiffs'

accusation that the City was trying to "play games" with the

court may fall short.

          The City argues that it did not violate any clear and

unambiguous provision of the 1991 Consent Decree.   Paragraph 17

(b) of that Decree provides that the City "shall submit no fewer

than thirty-five (35) names per day, at least five (5) days per

week, whenever the population is in excess of 3,750."   App. at

117 (emphasis added).   The City acknowledges that once it changed

its policy as to the inmates to be included on the list, it

failed to list 35 inmates a day or 175 a week.   Plaintiffs do not

9
 .   In its opinion approving the 1991 Consent Decree, the
district court noted that it had held 29 status conferences on
the case up to that date. Harris v. Reeves, 761 F. Supp. at 388.
contend that the City could be held in violation of the 1991

Consent Decree for failure to list 35 inmates a day if there were

not that many inmates who fit the criteria for listing.10

          The district court held the City liable for contempt

for failure to list the following three categories of prisoners

beginning in early July 1992: inmates with other holds; inmates

held on enumerated offenses who have state or federal detainers;

and inmates who, according to the City, "are a danger to

themselves or the community."11   Thus we focus on whether it was

clear and unambiguous that prisoners falling within each such

category should have been listed.

                                  B.

                                                        Inmates

With Other Holds

          The district court included within this category

inmates who are detained on enumerated charges and at least one

non-enumerated charge.   Before early July 1992 these inmates were

included on the proposed release lists submitted by PMU, but were

10
 . In approving the 1991 Consent Decree, the district court
stated that "the Stipulation and Agreement requires the
imposition of fines if the City fails to submit 175 petitions
only if there are 175 eligible inmates." Harris v. Reeves, 761
F. Supp. at 398 n.17 (emphasis added).
11
 . The City also changed its prior practice of listing inmates
who on the face of their charges are not eligible for release.
The district court found that the City was not in contempt in
modifying the procedures in this category because the
modifications were consistent with the 1991 Consent Decree.
Therefore, this category is not under consideration in this
appeal.
not included after Jordan's instructions.    The City contends that

it is not required to list inmates who would not be eligible for

immediate release.    Thus, it continues, it is not required to

list inmates who are charged with a non-enumerated offense for

which bail may be reduced if that inmate is also charged with an

enumerated offense, which is generally a crime of violence,

because the charge on the enumerated offense precludes immediate

release.

             The plaintiff counters, and the district court agreed,

that the City must list inmates with both enumerated and non-

enumerated offenses so that the inmates can be immediately

released if and when the enumerated charges are dropped or

otherwise disposed of.    It is not contested that failure to list

such inmates under the release mechanism added three to four

weeks to the release process if the enumerated charges were

dismissed.

             The district court commented that the Special Master

contemplated that a detainee in this category would be listed for

release on non-enumerated charges even if held on some other

enumerated charge.    The issue is not, however, whether the

Special Master or even the district court contemplated the City's

listing of this category of inmates, but whether that requirement

is unambiguously stated.12    We therefore turn to the relevant

language.

12
 .   Plaintiffs point to the following statement by the district
court in Harris v. Reeves, 761 F. Supp. at 398, as evidence that
the City must list inmates with both enumerated and non-numerated
offenses. "There will be other categories of inmates eligible
          Under Paragraph 17(a) of the 1991 Consent Decree:
          Defendants shall designate and submit to the Special
          Master the names of inmates who meet the criteria of
          Paragraph 4.E.(i)-(iii) of the September 21, 1990 Order
          which provides for the release of:
          (1) all persons admitted to the prisons under prior
          orders of the court who are still detained but who
          would not be admitted under the provisions of this
          order as now modified;
          (2) prisoners held in default of the lowest amount of
          percentage bail as necessary to reduce the population
          in all institutions to the maximum allowable
          populations. If inmates considered for release under
          this paragraph are held in default of equal amounts of
          bail, preference shall be given to the inmate held the
          longest time. Persons charged with offenses enumerated
          in paragraphs 3A and B [of the September 21, 1990
          Order] shall not be released pursuant to this
          paragraph.


          Two paragraphs of the September 21, 1990 Order are

referenced in paragraph 17(a).   The first reference is to

paragraph 4.E.(i)-(iii) which describes the "release categories"

in the exact same language as in paragraph 17(a) (except that the

plural is used in paragraph 17(a)).   See note 3 supra.      The

other reference is to paragraphs 3A and B of the September 21,

1990 Order which enumerated the pending charges that excepted

inmates from release.   In essence, paragraph 17 merely provides

that in order to reduce the population of the overcrowded prisons
(..continued)
for release. For example, the City will be able to submit the
names of those inmates who were admitted to the prisons because
they were charged with excepted offenses, are now eligible for
release because the excepted charges have been dismissed but are
still held on other non-excepted charges." Id. (emphasis added).
This is hardly an unqualified statement that the City must
include such inmates if needed to meet its quota. It was made,
instead, in the context of responding to the District Attorney's
concern about the pool of inmates "eligible for release," not
about those who need be listed.
the City would release those prisoners who, under the qualified

admissions moratorium, would not now be detained, and those

prisoners who are not charged with one of the enumerated offenses

in the order of longest-in, earliest-out.

          The City's argument that it need not include on its

list those prisoners who are charged with any enumerated offense

is a plausible one from the language of the 1991 Consent Decree.

It must "designate and submit" only the names of inmates who

"meet the criteria" of the referenced paragraph of the September

21, 1990 Order.   Inmates charged with "enumerated" offenses do

not "meet the criteria" and therefore need not be listed.

          Plaintiffs' argument "that the pool of eligible

candidates was defined by the City's practice prior to July

1992," Appellees' Brief at 30, is not persuasive.   While prior

practice may be of assistance in interpreting a contract for

purposes other than contempt, prior practice does not provide the

clarity of language that precedent informs us is a predicate for

any contempt ruling.   Authority cited by plaintiffs in support of

the principle that a consent decree must be construed in light of

its purpose is to the same effect.   In fact, in the case cited,

In re Arthur Treacher's Franchise Litig., 689 F.2d 1150 (3d Cir.

1982), the court affirmed the contempt citation because the

conduct violated "both the letter and spirit" of the underlying

order.   Id. at 1157 (emphasis added).

          We cannot find an unambiguous provision in the 1991

Consent Decree or otherwise requiring the City to designate
inmates with other holds for purposes of the release mechanism.13

Therefore, we cannot uphold this portion of the contempt finding.

                                 C.

             Inmates with State or Federal Detainers

          The district court included under this category both

those inmates held on enumerated offenses who also were subject

to state or federal detainers for, inter alia, parole or

probation violations and those inmates "on writ," i.e. those who

are here for court appearance.   To the extent that the district

court's finding of contempt was based on the fact that the City

had previously listed these inmates, our rejection of prior

practice to clarify an ambiguous requirement under the consent

decree in this context is equally applicable here.

          The City, applying the same analysis as it used with

respect to inmates held on both enumerated and non-enumerated

charges, argues that "had the City designated and submitted the

names of these inmates for release, they would not have been

released, because they were being held not only on detainers, but

also on enumerated charges."   Appellants' Reply Brief at 8.

While we concluded above that the City's argument as applied to

inmates held on both enumerated and non-enumerated charges

persuaded us that there was a legitimate ambiguity that precluded

13
 . We do not decide whether the language of the 1991 Consent
Decree was such that the district court, using permissible
interpretative aids or evidence, can construe it to support an
order requiring the City to list this category of inmate in the
future. The only issue before us is whether the language is
sufficiently clear that the City must do so that its failure to
act in this manner supports a contempt finding.
a finding of contempt for failure to list inmates in that

category, we are not similarly persuaded as to inmates held on

detainer.   Of course, these inmates, like those held on

enumerated and non-enumerated charges, were not eligible for

"release" to the general population.    Unlike the other category

of inmates, however, these inmates could have been eligible for

"release" from the Philadelphia prisons by being transferred to

some other jurisdiction.

             In this connection, we cannot dismiss as irrelevant

the district court's reliance on the fact that the First Deputy

City Solicitor had notified the court by letter to the Special

Master dated January 17, 1992 that the City "did not object to

transferring inmates with state parole detainers" even though

they had been charged and were being held in Philadelphia on one

or more enumerated charges.   This is relevant not to show prior

practice but to show that listing inmates with detainers from

other jurisdictions could, in fact, have effected their removal

from the Philadelphia prisons, with a consequent reduction in

overcrowding.

            Moreover, the 1991 Consent Decree, unlike the September

21, 1990 Order, does not provide any basis for construing the

term "release" as a term of art.   Paragraph 4.A. of the September

21, 1990 Order required listing of a detainee "for release by

court order on his or her own recognizance (HvR-SOB), on

electronic monitoring (HvR-EM) or to a community corrections

facility (HvR-CCF)."    App. at 103.   It follows that it would be

reasonable to construe the listing requirement of the September
21, 1990 Order as applicable only to a detainee released on one

of these three types of releases.

          On the other hand, Paragraph 18 of the 1991 Consent

Decree expressly provides that Paragraph 4.A. of the September

21, 1990 Order (which set forth these three types of release) is

superseded.     See App. at 118 ("The procedures set forth in

Paragraph 17 of this Stipulation and Agreement shall supersede

Paragraphs 4.A.-C. of the September 21, 1990 Order.").     This

removes any argument based on "release" as a term of art.

          We have earlier accepted the City's argument that it

should not be held in contempt for not listing prisoners with

both enumerated and non-enumerated charges because, in its words,

"the decree appears to contemplate that prisoners listed actually

will be eligible to be set free, i.e., released, not just to have

their bail reduced to 'HvR-SOB' on a single charge."    Appellants'

Brief at 37.    That argument has no force when dealing with

prisoners on detainers who are eligible to be released to other

authorities.

          In our prior discussion, we have recognized that

ambiguities redound to the benefit of the contemnor.     This does

not mean that a party can avoid following an injunction or court

order "on merely technical grounds."     See Christie Indus., 465

F.2d at 1007.    In sustaining the finding of contempt in In Re

Arthur Treacher's Franchise Litig. we looked to the "thrust of

the . . . order."    689 F.2d at 1156.   We find it incontrovertible

that the "thrust" of the 1991 Consent Decree was to move out of

the Philadelphia prisons those who could be reasonably moved
elsewhere.   This entailed, inter alia, even the establishment of

a program for alcohol and drug dependent inmates in another

facility, the subject of our opinion in Harris VI.

          There is no language that supports the City's failure

to list inmates who might reasonably be transferred to other

jurisdictions, or, as in the case of those "on writ," who might

not be needed for immediate trial.14   Instead, by not listing

these inmates the City deprived plaintiffs, the Special Master,

and the court of the opportunity of arranging for their removal,

even if temporary, from the Philadelphia prisons.15   Even

Jordan's memorandum of August 5, 1992 recognized that such

transfer could have been viable, for it stated:
          Please do not continue to list persons with State or
          Federal detainers and charged with enumerated offenses
          who are to be transferred to another jurisdiction.
          Such persons are not required to be listed on the
          Harris release orders. We will work with the courts
          and the District Attorney's Office to improve the
          efficiency of available mechanisms for transfer of such
          persons.

14
 .   The parties have not clarified whether there is a pertinent
distinction between inmates on federal and state detainers, to
which our discussion applies, and those "on writ." To the extent
that those "on writ" also have pending against them an enumerated
charge, and might have been eligible for transfer elsewhere,
failure to list them is encompassed by this discussion. If those
inmates present a different situation the matter can be
clarified, and presumably resolved between the parties and the
court, within the framework of this opinion when it returns to
the district court for modification of the amount of the
sanction.
15
 . We need not decide whether each of these prisoners would
have been transferred. We recognize that there may have been
some objection. Instead, failure to list them deprived
the court or its representative of any opportunity to consider
such objection, if raised in a particular case.
App. at 426 (emphasis added).   We will therefore sustain the

finding of contempt for failure to list inmates in this category.

                                  D.

       Inmates Who Are a "Danger to Themselves or to Others"

           Jordan described the final category of inmates whom he

directed PMU to stop listing as part of the release mechanism as

"persons who are a danger to themselves or to others."      App. at

426.   The City cannot have been unaware that such a

characterization would give the impression that the district

court was directing the release of "dangerous" inmates without

concern for the public welfare.     In Jordan's memorandum of

September 24, 1992 Jordan directed PMU to list as "dangerous"

those inmates whose bail is set at $75,000 or higher or who

require mental health treatment.       Defining "dangerous" inmates in

this manner does not arise out of anything in the 1991 Consent

Decree, nor indeed out of any of the earlier stipulations,

agreements, or court orders.

           Further, the City stipulated that the 1991 Consent

Decree contains no explicit exception to the release mechanism

for inmates whom the City deemed to be "a danger to themselves or

to the community."   App. at 483.

           To justify its decision not to list for the release

mechanism this category of inmates, the City refers us not to any

provision of the 1991 Consent Decree but to Paragraph 4 of the

1986 Consent Decree which states the City agrees not to seek the

release of any person charged with, or convicted of, murder or

forcible rape or "whose release would constitute an imminent
threat to public safety or the inmate's own health, safety or

welfare."    App. at 93.   In order to analyze the City's argument,

it is necessary to recall that throughout the history of this

litigation, beginning with the 1986 Consent Decree, there were

offenses enumerated in both the release mechanism and the

admissions moratorium to which those provisions did not apply.

Presumably the parties enumerated the offenses they deemed

identified inmates or defendants who presented the greatest

danger to the public interest.    Inasmuch as the admissions

moratorium in the 1986 Consent Decree did not have any general

exception under which the City could except those whom it

believed were a threat to public safety comparable to the

provision in the release mechanism, and it is as much a danger to

public safety to refuse to admit a person charged with "or

convicted" of a crime as it is to release that person if s/he is

already in prison, it is reasonable to conclude that the parties

equated the crimes excepted from the admissions moratorium as

somewhat equivalent to those that constitute a threat to public

safety.   This equivalency runs through the various subsequent

orders.

            As detailed before, the 1986 Consent Decree was

unsuccessful in effecting any significant short-term relief, and

when the admissions moratorium went into effect in June 1988 it

was the District Attorney (not the City) who, notwithstanding the

denial of his intervenor status, petitioned the district court on

a number of occasions and was successful in getting the court to

order additional exceptions from the qualified admissions
moratorium for certain additional categories of charges.    See

Harris v. Reeves, 761 F. Supp. at 387.

            None of the orders modifying or expanding the release

mechanism and/or the qualified admissions moratorium addressed

the "dangerous" inmate as such, i.e. outside the context of a

specified crime.   Notably, when the release mechanism was revised

by the Order of April 17, 1989, it expressly provided for notice

to the District Attorney who could notify the Special Master "of

objections."   Supp. App. at 1442.   However, when the

ineffectiveness of the 1986 Consent Decree became evident, and

the City abandoned its plans for long-term relief, the parties,

i.e. the City and the plaintiffs, renegotiated their agreement to

the 1991 Consent Decree, that document did address the dangerous

prisoner/public safety issue.    In paragraph 17(e), the 1991

Consent Decree gave the District Attorney the right to object to

release of a prisoner on public safety grounds.    Notably, the

1991 Consent Decree did not incorporate a provision in the April

17, 1989 Order and the September 21, 1990 Order providing that

PMU, the City's contractor, "shall . . . note" any information

indicative that the listed inmate would "pose a risk of harm" if

released.   See App. at 103; Supp. App. at 1442.   In holding the

City in contempt for deciding, with no support in the language of

the 1991 Consent Decree, that it need not list prisoners who are

mentally ill and those for whom bail was set at $75,000, the

district court held that paragraph 17(e) superseded the paragraph

in the 1986 Consent Decree on which the City relied.
          The City argues that it is a separate and distinct

entity from the District Attorney, so that its policy of "not

listing dangerous inmates follows common sense."   Appellants'

Brief at 44.   We prefer not to comment on the "common sense" of

the City or its representatives who have agreed to the procedures

established in the orders and consent decrees at issue, and who

unilaterally imposed the change in interpretation and procedures

which precipitated the contempt findings resulting in this series

of appeals.

          We conclude that the district court's interpretation of

Paragraph 17(e) of the 1991 Consent Decree as superseding

Paragraph 4 of the 1986 Consent Decree is not erroneous, under

even the most searching review.   Although Paragraph 18 in the

1991 Consent Decree states that all unamended provisions of the

September 21, 1990 Order remain in full force and effect, it

explicitly modifies the release mechanism provisions in the

September 21, 1990 Order.   Paragraph 18 of the 1991 Consent

Decree states that the release mechanism in Paragraph 17

supersedes Paragraphs 4.A-C of the September 21, 1990 Order but

that otherwise the 1991 decree "shall not affect the operation of

the September 21, 1990 Order or Paragraphs 1 and 2.a-c and h-i of
the remedial provisions of the Consent Order of December 30,

1986."   App. at 119 (emphasis added).   Therefore, Paragraph 17

superseded the release mechanism of the September 21, 1990 Order

and explicitly preserved only Paragraphs 1 and 2.a-c and h-i of
the 1986 Consent Decree.16   Paragraph 4 of the 1986 Consent

Decree from which the City derives its authority to not list

"dangerous" inmates has not been preserved by the 1991 Consent

Decree.

          The City argues that this interpretation is incorrect

because under the 1991 Consent Decree the District Attorney has

the power to prevent an inmate's release only if the District

Attorney can designate another eligible inmate to be released.

There are several responses.   The first, and most obvious, is

that this is the provision to which the City agreed.   We prefer

not to speculate as to the reason.   The second is that every

inmate at issue in this case is a pretrial detainee for whom bail

has been set and who, if s/he could provide that bail, would be

walking the streets.   The third is that if we agreed with the

City, Paragraph 17(e) of the 1991 Consent Decree specifying the

District Attorney as the one who could prevent release on "public

safety" grounds upon substitution of another inmate would be

surplusage, because the City could designate any inmate without

such substitution.

             In rejecting the City's defense to contempt on this

ground the district court agreed that inmates suffering from

mental illness are "poor candidates for release," but noted that


16
 . The City maintains that when the 1991 Consent Decree
superseded provisions of the earlier orders it specifically so
stated. But the City fails to take the further step to evaluate
how the release mechanism evolved over time and how the authority
to prevent releases of "dangerous inmates" was shifted from the
City to the District Attorney.
they should be held, if at all, in the prison health services

wing which is not subject to the 1991 Consent Decree and then

would be properly excluded from release lists.    Addenda to City's

Brief at A-23.   The City offers no response.   The district court

also stated that the amount of bail is an inadequate

determination of dangerousness.   We assume that the dispute on

this category is in large part focused on certain defendants

charged with drug crimes, which are not excepted from the release

provision of the 1991 Consent Decree.

           In light of the plain language of the 1991 Consent

Decree read in the context of the history of the "danger"

provision set forth above, we will affirm the district court's

finding that the City violated an unambiguous provision of the

1991 Consent Decree by failing to list inmates who fell into the

two categories it deemed "dangerous."17
                               III.

                            CONCLUSION

          We will reverse the finding of contempt for failure to
list inmates who were charged with enumerated as well as non-

enumerated offenses, and we will affirm the finding of contempt

for failure to list inmates with state or federal detainers and

inmates who are a danger to themselves or others.    Because this

will require a corresponding revision of the penalty which was


17
 . We find the argument that the court continues to monitor and
enforce other provisions in paragraph 4 of the 1986 Consent
Decree unavailing. This practice may be unnecessary but it is
not before us.
calculated based on each inmate per day who should have been

listed but was not, we will remand for recalculation of the

penalty.

           We observe that the three opinions issued today are not

independent of each other, although we have treated them

separately for convenience.   Indeed, they are interrelated parts

of a complex ongoing litigation in which we believe the public

interest would best have been served had the parties been able to

maintain the same degree of cooperation that characterized their

original entry of the Consent Decrees and Stipulations.

Moreover, as we observed in the opinion in Harris V, many of the

issues that divide the parties in this case with respect to the

release mechanism might have been obviated had the district court

considered the merits of the Motion to Modify.   We trust that on

remand steps will be taken to insure that the divisions that

characterize the disputes that are the subject of this opinion

will not recur.
__________________________________
Harris v. The City of Philadelphia
No. 93-1988

ALITO, Circuit Judge, concurring and dissenting:




          I join parts I, IIA, and IIB of the opinion of the

court.   I cannot, however, agree with the court that the City of

Philadelphia was properly held in contempt for ceasing to list

(a) inmates with detainers who were ineligible for release

because they were held on "enumerated" offenses and (b) inmates

whom the City believed posed an imminent danger to the community

or to themselves.



          A.   INMATES WITH DETAINERS.   As the court acknowledges,

a party may not be held in contempt unless it violates a

"`specific and definite'" court order.    Maj. typescript at 17

(citations omitted).    See also Eavenson, Auchmuty & Greenwald v.

Holtzman, 775 F.2d 535, 544 (3d Cir. 1985); In re Rubin, 378 F.2d

104, 108 (3d Cir. 1967).     In ceasing to list inmates who were

charged in Philadelphia with "enumerated" (i.e., serious

offenses) and who also had detainers lodged against them, the

City did not, in my view, violate any specific and definite

prohibition.   I analyze this question in two steps.

          First, as the court appears to recognize (see Maj.

typescript at 23), the City was not required to list inmates who

were ineligible for release under paragraph 17a of the 1991

Consent Decree.     Paragraph 17 of the 1991 Consent Decree (the
provision that the district court found that the City had

violated) provides in pertinent part as follows:
          a.   Defendants shall designate and submit to the
               Special Master the names of inmates who meet the
               criteria of Paragraph 4.E(i)-(iii) of the
               September 22, 1990 Order which provides for the
               release of:

           (1) all persons admitted to the prisons
               under prior orders of the court who
               are still detained but who would
               not be admitted under the
               provisions of this order as now
               modified;

           (2) prisoners held in default of the
               lowest amount of percentage bail as
               necessary to reduce the population
               in all institutions to the maximum
               allowable populations. If inmates
               considered for release under this
               paragraph are held in default of
               equal amounts of bail, preference
               shall be given to the inmate held
               the longest time. Persons charged
               with offenses enumerated in
               paragraphs 3A and 3B18 shall not be
               released pursuant to this
               paragraph. . . .




18
 .   These paragraphs listed the following offenses:

          A.   Murder, attempted murder, forcible rape, attempted
               rape, involuntary deviate sexual intercourse,
               corrupting the morals of a minor, arson,
               kidnapping, aggravated assault, a crime of
               violence committed or attempted with a firearm,
               knife, or explosives, and escape from custody.

          B.   Domestic Violence and Abuse Offenses. . . .

JA101.
             e. The Special Master shall direct the release of all
             inmates who meet the criteria set forth in Paragraph
             17.a. . . .


JA116-17 (emphasis added).    Thus, paragraph 17a requires the

defendants to submit to the Special Master the names of inmates

who meet the specified criteria for release, and paragraph 17e

requires the Special Master to "direct the release of all

inmates" who meet those criteria.     JA117.   Accordingly, it seems

clear that the defendants were not obligated to submit the names

of inmates who were ineligible for release under paragraph 17a.

             Second, it is at least arguable that all inmates

charged with enumerated offenses (including those inmates who

were charged with enumerated offenses and who also had detainers

lodged against them) were ineligible for release under paragraph

17a.   Paragraph 17a(2) of the 1991 Consent Decree, which was

quoted in full above, states in relevant part:
          Persons charged with offenses enumerated in
          paragraphs 3A and 3B shall not be released
          pursuant to this paragraph. . . .


JA116-17.    The term "this paragraph" must be interpreted as

referring, at a minimum, to paragraph 17a (and not just paragraph

17a(2)).19    Accordingly, paragraph 17a(2) appears to prohibit any


19
 . This interpretation is dictated by the analogous provisions
of the district court's order of September 21, 1990. Paragraph
4E of that order provides in pertinent part as follows:

             E.   Release categories shall be:

             (1) a person admitted to prison under prior
             orders of the court who is still detained but
person charged with an enumerated offense from being released

pursuant to paragraph 17a.   And since, as noted above, the City

was required to list only those inmates who were eligible for

release under paragraph 17a, it seems to follow that no inmates

charged with "enumerated" offenses (including those inmates who

also had detainers) were required to be listed.

          In holding that the City was properly found in

contempt, the majority relies in large part on what it views as

(..continued)
          who would not be admitted under this order as
          now modified;

          (2) a prisoner held in default of the lowest
          amount of percentage bail as necessary to
          reduce the population in all institutions to
          the maximum allowable. If inmates considered
          for release under this paragraph are held in
          default of equal amounts of bail, preference
          shall be given to the inmate held the longest
          time.

          (3) a person charged with offenses
          enumerated in paragraphs 3A and B shall not
          be released pursuant to this paragraph.

JA103-04 (emphasis added). Since paragraph 4E(3) does not
provide for the release of any persons, the prohibition in that
provision against release "pursuant to this paragraph" must at a
minimum mean release pursuant to paragraph 4E (and specifically
paragraph 4E(1) and (2)).

    Paragraph 17a(1) and (2) of the 1991 Consent Decree restated
paragraph 4E(1)-(3) of the September 21, 1990 order.
Consequently, the statement in paragraph 17a(2) of the 1991
Consent Decree that "[p]ersons charged with offenses enumerated
in paragraphs 3A and 3B shall not be released pursuant to this
paragraph" should be given the same interpretation as the
virtually identical language in paragraph 4E(3) of the September
21, 1990 order.
the "`thrust'" of the 1991 Consent Decree, i.e., "to move out of

the Philadelphia prisons those who could be reasonably moved

elsewhere."   Maj. Typescript at 27.   Even if we were required in

this appeal to ascertain the best interpretation of the 1991

Consent Decree, I would, for the reasons explained above, have

serious reservations concerning the majority's interpretation.

But since, as the majority concedes, "ambiguities redound to the

benefit of the contemnor," id., it seems quite clear that the

City was not properly held in contempt for ceasing to list the

inmates at issue here.20

20
 . The plaintiffs defend the district court's holding on a
different ground. They argue that the City was prevented from
retaining custody of such inmates with detainers pursuant to
paragraph 17a(1) of the 1991 Consent Decree. This provision, as
previously noted, requires the listing of:

          all persons admitted to the prisons under
          prior orders of the court who are still
          detained but who would not be admitted under
          the provisions of this order as now modified.

JA116. The plaintiffs argue that such persons could not be
"admitted" to the Philadelphia prison system as a result of
paragraph 2h of the 1986 Consent Decree, which states that "[n]o
federal or state prisoners other than inmates detained for
immediate court appearances, shall be housed within the
Philadelphia Prison System, except for those federal prisoners in
the custody of the United States Marshal." JA92. See Appellees'
Br. at 35.

    I am not persuaded that the district court's holding can be
sustained on this ground, which neither the district court nor
the majority of this panel has embraced. For one thing, this
argument does not address the language of paragraph 17a(2) of the
1991 Consent Decree, which, as explained above in text, appears
to prohibit the release of the inmates in question.
Consequently, even if the plaintiffs' interpretation of paragraph
17a(1) were accepted, their argument would at best create an
          B.   DANGEROUS INMATES.   I believe that the district

court also erred in holding the City in contempt for ceasing to

list inmates who would pose an imminent danger to the community

or to themselves.

          Paragraph 4 of the 1986 Consent Decree provides strong

support for the City's argument that it was not required to list

dangerous inmates.    This provision plainly states that the "City

Defendants . . . agree not to seek the release of any person

whose release would constitute an imminent threat to public

safety or to the inmates' own health, safety or welfare."    JA93

(emphasis added).    Since, as previously discussed and as the

majority itself appears to recognize (Maj. typescript at 23), the

City was not obligated to list inmates who were not eligible for

release, it follows that, as long as paragraph 4 of the 1986

Consent Decree remained in effect, the City was not required to

list inmates that it regarded as dangerous.

          The district court and the majority argue that

paragraph 4 of the 1986 Consent Decree was superseded by

paragraph 18 of the 1991 Consent Decree.    This latter provision

states:
          The procedures set forth in Paragraph 17 of
          this Stipulation and Agreement shall
          supersede Paragraphs 4.A.-C. of the September
          22, 1990 Order. Otherwise, this Stipulation
(..continued)
ambiguity and, as the court notes, "[t]he resolution of
ambiguities ought to favor the party charged with contempt."
Maj. typescript at 18.
             and Agreement shall not affect the operation
             of the September 22, 1990 Order or Paragraphs
             1 and 2.a-c and h-l of the remedial
             provisions of the Consent Order of December
             30, 1986, as amended, which shall remain in
             full force and effect except as they may be
             further amended.

JA118-119.


             In my view, this provision is at least ambiguous as to

whether Paragraph 4 of the 1986 Consent Order was superseded.

While the court makes a rather elaborate argument in favor of

supersedure (see Maj. typescript at 29-34), a very reasonable

argument can be made in favor of a contrary interpretation.

Because Paragraph 18 of the 1991 Consent Decree expressly

provides for certain portions of prior orders (but not paragraph

4 of the 1986 Consent Decree) to be superseded, it can be argued

with some force that no other supersedure should be inferred.     As

the majority notes, "[t]he resolution of ambiguities ought to

favor the party charged with contempt."     Maj. typescript at 18.

Thus, because there are substantial ambiguities here, I think

that the district court erred in holding the City in contempt for

ceasing to list inmates whom the City regarded as dangerous.

             I am particularly troubled by the district court's

holding because of its potential impact on the public safety.

One of the most basic and important responsibilities of a

municipal government is to protect the safety of its people.      It

therefore seems difficult to imagine that any municipal

government would voluntarily agree to participate in the
premature release of inmates whom it believes will pose an

imminent threat to the community.   To be sure, if a municipal

government unambiguously agrees to take such action, a court may

have no alternative but to enforce the agreement.   But unless the

agreement is truly unambiguous, I would think that a court

cognizant of its responsibilities to the community would hesitate

to require the municipality to follow a course of action that is

antithetical to the municipality's most basic obligations and

contrary to the public safety.

          In conclusion, I do not think that the City violated

any specific and definite provision of any order when it stopped

listing any of the categories of inmates at issue in this appeal.

Accordingly, I would reverse the district court order at issue in

its entirety.
