Rowe v. DeBruyn

RIPPLE, Circuit Judge,

dissenting.

While reciting the admonition of Wolff v. McDonnell, 418 U.S. 539, 555 , 94 S.Ct. 2963, 2974 , 41 L.Ed.2d 935 (1974), that “a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime,” and reminding us that there “is no iron curtain drawn between the Constitution and the prisons of this country,” id. at 555-56 , 94 S.Ct. at 2974 , the court today holds that the Constitution of the United States permits a state to leave, under all circumstances, an incarcerated person without any lawful recourse against even the most inhuman and vile attack on that person’s life or bodily integrity. It sanctions the decision of the state government of Indiana to require that any person incarcerated under its authority submit, no matter what the circumstances, to any threat to life or bodily integrity without any recourse to self-defense of any kind. This holding renders the phrases of Wolff meaningless poetry.

I do not believe that it is hyperbole to characterize the position of the majority as a novel one. As the majority implicitly admits, no court has ruled directly on whether the state may, consistent with the due process clause, impose, as a matter of absolute liability, a sanction for protecting oneself from death or bodily harm. There is indeed authority for the proposition that there is no “constitutional right of self-defense, founded in the Eighth, Ninth, and Fourteenth Amendments, which an accused cannot be required to prove.” White v. Am, 788 F.2d 338, 347 (6th Cir.1986), cert. denied, 480 U.S. 917 , 107 S.Ct. 1370 , 94 L.Ed.2d 686 (1987). However, as even the majority seems to acknowledge, the question of the allocation of burden of proof, the issue before the court in White and similar cases, is different from the issue of whether the state can require someone to accept grievous bodily injury or even the possibility of death as the price for not incurring criminal or quasi-criminal liability. As Judge Mumaghan of the Fourth Circuit has written:

It is difficult to the point of impossibility to imagine a right in any state to abolish self defense altogether, thereby leaving *1055 one a Hobson’s choice of almost certain death through violent attack now or statutorily mandated death through trial and conviction of murder later.

Griffin v. Martin, 785 F.2d 1172 , 1187 n. 37 (4th Cir.), aff'd by an equally divided court and op. withdrawn, 795 F.2d 22 (1986) (en banc), cert. denied, 480 U.S. 919 , 107 S.Ct. 1376 , 94 L.Ed.2d 691 (1987). See also John C. Jeffries, Jr. & Paul B. Stephan III, Defenses, Presumptions and Burden of Proof in the Criminal Law, 88 Yale L.J. 1325 , 1366-79 (1979) (suggesting that self-defense is so critical to the concept of criminal responsibility and has such substantial effects on a defendant’s liberty that to allow a conviction where reasonable doubt as to self-defense remains would be inconsistent with the fundamental notions of fairness that underlie the State’s duty to establish criminal liability).

My brothers make the further point, however, that the recognition of self-defense in the prison environment poses special' problems for the security of the institution and that these considerations justify the abrogation of the defense in the prison setting, even if such a defense must be recognized in other contexts. We have, no doubt, a special obligation to be sensitive to the legitimate requirements of prison security. This obligation brings with it an obligation of deference to the informed judgment of prison authorities with respect to matters of prison administration, especially those issues that implicate matters of security. 1 Yet, the Supreme Court has made it abundantly clear that the mere invocation of “security” or “expertise” does not permit a Judge of the Third Article to walk away from the issue. 2 There must be a demonstration on the part of the prison authorities that the deprivation in question is indeed “reasonably related to legitimate penological interests” of the corrections system. Turner v. Safley, 482 U.S. 78, 89 , 107 S.Ct. 2254, 2261 , 96 L.Ed.2d 64 (1987). The principal reason offered by the majority has a superficial appeal. The absence of self-defense, it maintains, fosters a peaceful environment within the prison walls because it acts as a deterrent to all violence. A prisoner caught fighting, it reasons, cannot reliably exculpate himself later with a claim of self-defense. Yet, we are told in the following sentence, a prisoner can claim self-defense in mitigation of punishment, thus, it would seem, destroying a good deal of the supposed deterrent.

The difficulty with the majority’s position is its assumption that the self-defense afforded to prisoners would have to be the same as that available in the general community and could not take into consideration the difficult circumstances of modern prison life. It may well be that self-defense in the prison environment ought to be available as a defense of extreme last resort and available only when the prisoner can establish that he cannot rely on the state to protect him, a situation that, the cases of this court make clear, occurs with some frequency. But to forbid all resistance to all threats to life and bodily integrity is not to ensure a lack of violence, as the majority suggests, but to leave the weak and the vulnerable the easy prey of the strong and the vicious. It is indeed a novel proposition of constitutional law to hold that a state, having deprived a person of liberty according to law, can further punish that individual for attempting to stay alive, even when the state itself is not ready, willing, or capable of *1056 assuming that responsibility by substituting its own strong arm for that of the prisoner-victim. 3

. See, e.g., Block v. Rutherford, 468 U.S. 576, 584-85 , 104 S.Ct. 3227, 3231-32 , 82 L.Ed.2d 438 (1984) (stating that security considerations are "peculiarly within the province and professional expertise of corrections officials”) (citations omitted); Pardo v. Hosier, 946 F.2d 1278, 1280 (7th Cir.1991) (stating that "prison administrators must be accorded wide-ranging deference in the ... execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security") (citations omitted).

. See, e.g., Procunier v. Martinez, 416 U.S. 396, 405 , 94 S.Ct. 1800, 1807 , 40 L.Ed.2d 224 (1974) (stating that, although courts must show deference in dealing with problems of prison administration, "a policy of judicial restraint cannot encompass any failure to take cognizance of valid *1056 constitutional claims whether arising in a federal or state institution”).

. It ought to be pointed out that the Indiana legislature actually might afford prisoners more protection than the majority assumes. Indiana Code Ann. § 35-41-3-2 states that "[n]o person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting himself or his family by reasonable means necessary.” Whenever we interpret a statute, we must begin with the plain meaning of that statute. Notably, the Indiana statute reserves the right of self-defense to any situation in which a "person” is put "in legal jeopardy of any kind whatsoever." Ind. Code Ann. § 35-41-3-2 (emphasis added). As the majority quite graphically points out in the latter part of it opinion, the consequences of the disciplinary hearing in this case were indeed significant and can quite comfortably fit with the term "legal jeopardy of any kind whatsoever.” The constraints of the Eleventh Amendment, as interpreted in Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 106 , 104 S.Ct. 900, 911 , 79 L.Ed.2d 67 (1984), preclude our entertaining a claim for relief based only on state law. Any remedy on this basis must be sought in the Indiana courts.