Gerald Albers v. Harold Whitley

EUGENE A. WRIGHT, Circuit Judge,

dissenting:

I would affirm substantially for the reasons stated by Judge Panner in his excellent opinion below. Albers v. Whitley, 546 F.Supp. 726 (D.Or.1983). I add these comments. I agree with the district judge that: (1) no constitutional rights were violated by the prison officials’ use of deadly force during a prison riot, and (2) the prison officials enjoy immunity to Albers’ claim for damages.

I. The Eighth Amendment Claim

This is the first case in which a federal court has countenanced a cause of action for cruel and unusual punishment arising from a prison disturbance. It is not our function to second guess the prison officials’ response to a riot situation. Administration of a prison is “at best an extraordinarily difficult undertaking.” Hudson v. Palmer, — U.S. -, -, 104 S.Ct. 3194, 3200 , 82 L.Ed.2d 393 (1984); Wolff v. McDonnell, 418 U.S. 539, 566 , 94 S.Ct. 2963, 2979 , 41 L.Ed.2d 935 (1974).

The district court viewed the evidence correctly in the light most favorable to the plaintiff and concluded that no triable issue existed because the prison officials responded in good faith to a genuine emergency. Albers v. Whitley, 546 F.Supp. 726, 735 (D.Or.1982). This was a riot. Prisoners were armed with a knife and pieces of furniture. A guard was held hostage. One inmate was reported dead.

Prison officials attempted and failed to achieve a peaceful settlement. They elected not to use tear gas because of the great discomfort it would cause the majority of inmates who had obeyed the cell-in order. Albers, 546 F.Supp. at 733-34 .

Close judicial scrutiny is inappropriate where prison officials react in good faith to a true crisis. Arroyo v. Schaefer, 548 F.2d 47, 50 (2d Cir.1977); LaBatt v. Twomey, 513 F.2d 641, 647 (7th Cir.1975). See also Pepperling v. Crist, 678 F.2d 787, 789 (9th Cir.1982) (extreme deference given to prison officials in matters of internal security). Judge Friendly has observed, “Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers violates a prisoner’s constitutional rights.” Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033 , 94 S.Ct. 462 , 38 L.Ed.2d 324 (1973).

II. Qualified Immunity

Under Davis v. Scherer, — U.S. -, 104 S.Ct. 3012 , 82 L.Ed.2d 139 (1984), prison officials enjoy immunity unless, at the time Albers was shot, it was “clearly established” that prison officials could be held liable for using deadly force in quelling a prison riot. The standard is objective and is appropriate for summary disposition by a trial judge. Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727, 2738 , 73 L.Ed.2d 396 (1982). We view the “objective reasonableness of [the] official’s conduct as measured by reference to clearly established law.” Davis, — U.S. at-, 104 S.Ct. at 3018 (quoting Harlow, 457 U.S. at 818 , 102 S.Ct. at 2738 ).

The majority, however, merges the question of “deliberate indifference” with the question whether a right is “clearly established” for qualified immunity purposes. This incorrectly inserts a subjective element into the determination of an official’s immunity. It also transforms qualified immunity from a question of law for the judge, to a question of fact for the jury.

There is no definitive guide as to when a right is “clearly established.” Zweibon v. Mitchell, 720 F.2d 162, 168-69 (D.C.Cir.1983). The Supreme Court has indicated that a high standard should be applied in prison cases such as this. In Davis , the Court recognized that prison officials routinely make close decisions and that they “should not err always on the side of cau *1378 tion.” Davis , — U.S. at-, 104 S.Ct. at 3021. Those persons “must often act swiftly and firmly at the risk that action deferred will be futile or constitute virtual abdication of office.” Id.

No court has awarded damages to a prisoner injured in a prison riot. As evidenced by the divergence of opinion among us on this panel, the constitutional rights of prisoners during a prison riot are not well settled. These rights are not “clearly established” under Davis .

The majority’s approach is not compelled by Haygood v. Younger, 718 F.2d 1472, 1483-84 (9th Cir.1983), vacated, 729 F.2d 613 (9th Cir.1984). A vacated decision has no vitality as precedent. See Hill v. Western Electric Co., Inc., 672 F.2d 381, 387 (4th Cir.1982); cert. denied, 459 U.S. 981 , 103 S.Ct. 318 , 74 L.Ed.2d 294 (1982).

I would affirm.