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Pembaur v. City of Cincinnati
Bizarre History of
Pembaur v. City of Cincinnati
Bertold Pembaur traveled a long, bizarre and convoluted road to the Supreme
Court. He was born and studied medicine in Austria before being
drafted into the German Army where he served
in an artillery unit on the Russian front.
After the war, he emigrated to Cincinnati,
Ohio, where he established the Rockdale
Medical Center. Most of the clinic's
patients were indigent and relied on
government assistance to pay their medical
In the spring of 1977, a Hamilton County grand jury began investigating
allegations that Dr. Pembaur had received payments from state agencies
for medical services that had not been performed. As part of that
investigation, police entered Pembaur's clinic on April 26 and executed
a search warrant by seizing roughly 35,000 documents, almost all of
which were returned within a few weeks. The seizure and return of
these documents was widely publicized in the
Cincinnati area media.
During its investigation, the grand jury also
subpoenaed a number of clinic employees, two of whom (Dr. Kevin Maldon
and Ms. Marjorie McKinley) failed to appear.
As a result of that failure, writs of attachment ("capiases") were
issued for their arrest.
About 2:00 on May 19, two Hamilton County deputy sheriffs entered the
public area of the clinic to serve the writs, but Dr. Pembaur
appeared and refused to permit them to enter the non-public
portion of the clinic saying that he needed to protect his employees and
the confidentiality of his patients and their records. He asserted that the
the April 26 warrants—did not
authorize the deputies to enter his premises without a search warrant.
(While this was an open legal question at the time, Dr. Pembaur turned
out to be correct.)
The scene became increasingly strange. Dr. Pembaur telephoned the
Cincinnati police, various lawyers, two judges, and the media. At one point,
he served the deputies tea. The reception area was soon filled
with TV cameras, reporters, lawyers (including an assistant prosecutor),
deputy sheriffs and police officers. Meanwhile, another clinic
employee led Dr. Maldon and Ms. McKinley up
a back stairwell to a hallway that was
adjacent to, but outside of, the clinic. They remained there until
the officers left.
The police tried to convince Dr. Pembaur to
permit the deputies to enter, but he
The deputies eventually called the county prosecutor's office for advice
and were advised to "go in and get [the two witnesses]." When Dr. Pembaur refused to open the door to the non-public areas,
the deputies tried to force the door.
When that failed, police officers
chopped the door down with an ax they
obtained from a nearby fire station. The
detained two individuals who resembled Ms.
McKinley and Dr. Maldon, only to discover
later that they had arrested the wrong
people. Ms. McKinley was arrested without incident at her home
that evening, and Dr. Maldon the next day.
On June 24, 1977, Dr. Pembaur was indicted on six counts, the last of
which was for obstructing justice by preventing the deputies from
entering his office. He was separately tried on that count first
and was convicted. That conviction was upheld by the Ohio Supreme
Court even though the Court agreed with Pembaur that the deputies did
not have the right to enter the non-public areas of the clinic.
The United States Supreme Court declined to review the criminal case
with Justices Brennan and White dissenting without opinion.
Meanwhile, two days before he was to be tried on the remaining five
counts, Dr. Pembaur, who had been released on his own recognizance, left the country
and traveled to Austria without notifying
the prosecutor or seeking permission from
the trial court. He remained in
Austria for eight months either (depending
on whose version you believe) receiving
treatment for a heart condition or avoiding
trial. When he returned, he was acquitted of the remaining
five counts of the original indictment
including the fraudulent billing allegations
that had inspired the original
investigation. As a result of his travels to
Austria, he was also charged with violating
the terms of his recognizance by failing to appear
on the original trial date; but, after an
initial conviction was overturned, he was
acquitted on that charge as well.
While the various criminal proceedings and appeals were taking place,
Dr. Pembaur filed the civil rights suit that became known as
Pembaur v. City of Cincinnati, seeking monetary
damages for the illegal entry into his office. After the Supreme Court
ruled in his favor, the case was remanded and after several hearings and
further appeals, Dr. Pembaur was awarded $5,000. This award was
ultimately affirmed in 1991—more
than fourteen years after the incidents at the Rockdale