Amicus Curiae Brief — Whitley v. Albers

ror

Supreme Court, U.S.

F I.LE D

AUG 19 1985

-—

\NIOL, JR.

No. 84-1077

JOSEPH F. SP)

RK

—_

In the Supreme Court of the United States

OCTOBER TERM, 1985

HAROL WHITLEY, ET AL., PETITIONERS

Vv.

GERALD ALBERS

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

CHARLES FRIED

Acting Solicitor General

RICHARD K. WILLARD

Acting Assistant Attorney General

KENNETH §S. GELLER

Deputy Solicitor Gen 2ral

ANDREW J. PINCUS

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20580

202) 633-2217

BEST AVAILABLE COPY

QUESTIONS PRESENTED

1. Whether petitioners, state prison officials sued

in their individual capacities, may be held liable under

42 U.S.C. 1983 on the theory that they subjected re-

spondent, a prison inmate, to cruel and unusual pun-

ishment because respondent was injured in the course

of petitioners’ efforts to quell a prison riot.

2. Whether petitioners are entitled to qualified im-

munity from damages liability under the standard

established in Harlow v. Fitzgerald, 457 U.S. 800

(1982).

(I)

TABLE OF CONTENTS

Page

Bebawens Gf tie Webbe BORRGB ~~... -nncncencecccceccccvscccccesscecceess 1

ESET REESE IIT EP meee OER ae OE 2

IIIS a entciaslainigmgnanetenntnnnesiie 7

Argument:

Respondent cannot recover damages under 42

U.S.C. 1983 for petitioners’ conduct in quelling a

I iain ssssichasdatiiaciabatinledchinaendbdaiuneniabbabtaebsassiediinnnte 10

A. Respondent was not subjected to cruel and un-

usual punishment by petitioners’ actions in

suppressing the prison riot ................2-.......2..--.--. 11

B. Petitioners are immune from liability for dam-

ages under this Court’s decision in Harlow Vv.

TSS CS a A RO 24

REE a ae 30

TABLE OF AUTHORITIES

Cases:

Batley V. Turner, 786 F.2d 968 .................................. 28

Baker v. McCollan, 443 U.S. 187 .......0002222022000002--..... 20

Bass v. Wallenstein, No. 83-2392 (7th Cir. July 30,

Bn tc Ey EPs a Ree a oe ER 28

BGS GV. FORM, TEB FBG DUGG .ncccccccccccccccoccceccccocccscee: 28, 29

Sp We. i i sssaiteees passim

Bivens Vv. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 _.............. 1

Block v. Rutherford, No. 83-317 (July 3, 1984) ..... 15, 16,

17, 18, 23

Brockell v. Norton, 732 F.2d 664 ....................0... 28

Clemmons Vv. Greggs, 509 F.2d 1338, cert. denied,

RN EEO Le 25-26

Davis v. Scherer, No. 83-490 (June 28, 1984)... 24, 27

Davis v. United States, 439 F.2d 1118... 26

Estelle v. Gamble, 429 U.S. 97 .......... 8, 10, 13, 18, 20, 21, 27

(IIT)

WV |

Cases—Continued : Page |

Evers Vv. County of Custer, 745 F.2d 1196 ................ 28

Floyd ¥. Parvrell, 766 PBd 1. ...........0:.-cccccsccesesseeeseoees 28

Galloway v. United States, 319 U.S. 372 ........ iia 22

Gregg V. Georgia, 428 U.S. 158.........................--.----- 13, 23

Harlow V. Fitzgerald, 457 U.S. 800.......... 5, 8, 24, 25, 27, 28

Hobson V. Wilsox, 737 F.2d 1, cert. denied, No. 84-

CR SO sa sieianlalaelliaibehdedtile 28

Hudson V. Palmer, No. 82-1630 (July 3, 1984) ......7, 11, 12,

13, 15, 18

Hutto v. Finney, 487 U.S. 678 ..............---2..2..------0-0+- 13

Imbler v. Pachtman, 424 U.S. 409 ............................ 25

Ingraham Vv. Wright, 430 U.S. 651 ............-..............- 18

Inmates of Attica Correctional Facility v. Rocke-

I I 14, 26

Johnson V. Glick, 481 F.2d 1028, cert. denied, 414

| ER EER ASEEL ERAT ane DNC wes NTRS Spee ee oe 11, 18, 19

Jones V. Mabry, 723 F.2d 590, cert. denied, No. 83-

I le 19

Jones V. North Carolina Prisoners’ Labor Union,

A i 11-12, 15

King V. Blankenship, 636 F.2d 70 ................-.-22222-..... 14

Mitchell v. Forsyth, No. 84-335 (June 19, 1985) ..... 24

Norris Vv. District of Columbia, 737 F.2d 1150........ 11

O’Hagan V. Soto, 725 F.2d 878 .................................. 28

Porraté ¥. Tagier, 461 U.S. GBT q.............---c0oceceees----- 20

Pell v. Procunier, 417 U.S. 817 ................................. 12, 15

Piereen V. Bat, BBG UB. GET ........-.-:eccncceceeeecececeeessss- 25, 29

Poindexter v. Woodson, 510 F.2d 464, cert. denied,

a cdausiedinieemeem 25

Putman V. Gerloff, 639 F.2d 415 ............000000e eee. 11

Rhodes v. Chapman, 452 U.S. 387 .............00000000000.... 10, 13

Robinson Vv. California, 370 U.S. 660 _........00.000--00. 10

Rochin V. California, 342 U.S. 165 ........2200....0000.... 18, 19, 23

Sampley v. Ruettgers, 704 F.2d 491.0... 19

Scheuer v. Rhodes, 416 U.S. 282 .......0.....00...-..22202------ 26

Screws v. United States, 325 U.S. 91 _.............-..0..... 10 [

Soto v. Dickey, 744 F.2d 1260, cert. denied, No.

> Ff SR apecee aN nennn nea 19

Spain Vv. Procunier, 600 F.2d 189.0000... 26

Trejo V. Perez, 608 F.2d 4&2 ...................................... 28

United States v. Gillock. 445 U.S. 360 25

Cases—Continued : Page

United States v. Harrison, 671 F.2d 1159, cert.

EE aL a ae 11

United States v. Leon, No. 82-1771 (July 5, 1984) . 28

United States v. Price, 383 U.S. 787 .......................... 10

Williams v. Mussomelli, 722 F.2d 1130 ......0.0000000..... 14, 19

Wolff v. McDonnell, 418 U.S. 589 .................00000...... 12,17

Wood v. Strickland, 420 U.S. 308 .-............. PRT m ase 29

Youngberg V. Romeo, 457 U.S. 307 .......-0020. eee 16, 17

Zook v. Brown, 748 F.2d 1161 .................................... 28

Constitution and statutes:

U.S. Const. :

I, © seecesemnecinniens ern ee ae PANS TROIS Omani erne ea 14

I Ra a a 13, 14

RE ee Re Cy 14, 15

I passim

Amend. XIV (Due Process Clause) .............. 8, 10, 14

a NEP pr oe RN 25

ER EST ED SH Pa ANE TOR Tor a OR 1, 4, 25

Miscellaneous:

Prison Violence, 9 Corrections Compendium (April

ESI USS adores rant Dee DS OD Pe 12

Restatement (Second) of Torts (1965) _........ ae 20

9 C. Wright & A. Miller, Federal Practice and Pro-

I a 22

Iu the Supreme Court of the United States

OCTOBER TERM, 1985

No. 84-1077

HAROL WHITLEY, ET AL., PETITIONERS

v.

GERALD ALBERS

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

This case concerns the liability under 42 U.S.C

1983 of individual state prison officials as a result of

their actions in quelling a prison riot. Under Bivens

v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971), federal officials may

be held liable in many of the same circumstances in

which state officials are liable under Section 1983.

Since this Court’s decision will affect the extent to

which federal prison officials may be held personally

liable for acts committed in the course of their official

duties, the United States has a clear interest in this

case.

(1)

|

2

STATEMENT

1. On June 27, 1980, respondent was an inmate in

Cellblock A of the Oregon State Penitentiary." That

evening, some inmates in Cellblock A became upset by

what they believed to be the mistreatment of inmates

who were being taken to the penitentiary’s segrega-

tion and isolation building. Apparently because of |

the inmates’ agitation, the corrections officers on duty

in Cellblock A ordered the inmates to return to their

cells. The inmates normally would have been per-

mitted to remain outside their cells for three more

hours. One inmate, Richard Klenk, was particularly

upset by the order to return to his cell. He assaulted

one of the two corrections officers on duty and that

officer left the cellblock. Several inmates then began

to destroy furniture and construct a barricade to

block access into the cellblock. Officer Walker Fitts,

who remained in Cellblock A, was moved to an office

within the cellblock and kept under the control of the

inmates. Pet. App. 2, 17-18; Tr. 53, 55-56, 100-108,

489.

The prison authorities were immediately notified of

the incident. Petitioner Harol Whitley, the prison

security manager, climbed over the furniture barri- |

cade and entered Cellblock A (Pet. App. 2, 18; Tr.

56). He spoke to inmate Klenk in an effort to end |

the disturbance; Klenk responded by threatening to

kill Officer Fitts (Tr. 369-370). Whitley then ar-

ranged for several inmates to go to the segregation

and isolation building to ascertain the condition of

the inmates who had been observed earlier in the

1 Cellblock A housed inmates with good disciplinary records.

These inmates received privileges that were not accorded other :

prisoners, such as the right to spend more time outside their

cells. Pet. App. 17; Tr. 55.

3

evening. They found that the inmates taken to isola-

tion had been intoxicated. Whitley returned to Cell-

block A and was permitted to speak to Officer Fitts,

who appeared unharmed. Pet. App. 2-38, 18-19; Tr.

56-57, 370-372. At some point, inmate Klenk told

Whitley that one inmate had been killed and that

others would die (Pet. App. 3; Tr. 372). Whitley

also became aware that Klenk had a homemade knife

(Pet. App. 3, 19; Tr. 57).

Whitley later reentered the cellblock a third time to

check on the condition of Officer Fitts after Fitts had

been moved to a new location (Pet. App. 3, 19; Tr.

57). Respondent asked Whitley for the key to the

cells housing elderly inmates so that these inmates

could move to a safer location away from the dis-

turbance. Whitley agreed to return with the key.

Pet. App. 3, 19-20; Tr. 115-116.

Whitley left Cellblock A and conferred with peti-

tioner Hoyt C. Cupp, the superintendent of the peni-

tentiary, and petitioner J.C. Keeney, the assistant

superintendent. They agreed that tear gas could not

be used to quell the riot because the gas might not

act quickly enough, could be ineffective because of

the large area controlled by the inmates, and would

cause discomfort to the inmates who had obeyed the

order to return to their cells. The officials decided

that the only feasible alternative was to enter the cell-

block using armed force. Cupp ordered the squad to

“shoot low.” Pet. App. 3, 19; Tr. 372-375, 467-468,

511-512.

Respondent was waiting for Whitley when Whitley

entered with the armed officers. Whitley ran up the

cellblock stairs in pursuit of inmate Klenk, who had

run toward the cell in which Officer Fitts was being

held. Respondent began to run up the stairs after

d

Whitley and was hit in the knee by a shot discharged

by petitioner Robert Kennicott, a corrections officer.

Pet. App. 3-4, 20-21; Tr. 58, 118-119, 375-376. Ken-

nicott testified that he believed that the inmates pur-

suing Whitley presented a danger both to Whitley

and to Officer Fitts (Tr. 459; see also Tr. 375).

Whitley subdued Klenk, and respondent was given

medical care. Respondent suffered permanent dam-

age to the nerve in his leg. Pet. App. 4, 21-22; Tr.

59, 67, 376.

2. Respondent commenced this action in the United

States District Court for the District of Oregon seek-

ing damages under 42 U.S.C. 1988. He asserted that

petitioners’ actions in quelling the riot subjected him

to cruel and unusual punishment in violation of the

Eighth Amendment.

At the conclusion of the jury trial, the district

court granted petitioners’ motion for a directed ver-

dict (Pet. App. 15-40). The court stated that in de-

termining whether the officials’ conduct amounted to

cruel and unusual punishment, it was required to

“examine such factors as the need for application of

force, the relationship between the need and amount

of force that was used, and the extent of the injury

inflicted” (id. at 25). Observing that “[p]rison offi-

cials must be free to deal firmly with outbreaks and

uncontrolled situations” (id. at 26), the court con-

cluded that the use of force to quell the riot in this

case was justified because negotiations had failed to

restore order, a guard was being held hostage, and a

leader of the riot had “claimed to have killed one in-

mate and threatened others” (id. at 27). The court

also found that the level of force used by petitioners

was reasonable (id. at 30):

5

Possible alternatives were considered and reason-

ably rejected by prison officers. The use of shot-

guns and specifically the order to shoot low any-

one following the unarmed Whitley up the stairs

were necessary to protect Whitley, secure the

safe release of the hostage and to restore order

and discipline. Even in hindsight, it cannot be

said that [petitioners’] actions were not reason-

ably necessary.

The district court also held that petitioners were

entitled to qualified immunity from damages. Apply-

ing the test set forth in Harlow v. Fitzgerald, 457

U.S. 800 (1982), the court found that petitioners

could not have reasonably known that their actions

to suppress the disturbance and rescue the hostage

would violate any prisoner’s Eighth Amendment

rights. It noted that no reported case had held that

a prisoner could recover damages for prison officials’

actions in this context and that the applicable deci-

sions “provided great discretion to prison officials to

take necessary action to maintain and control prison

situations” (Pet. App. 35).?

3. The court of appeals reversed by a divided vote

(Pet. App. 1-14). The court held that there was

sufficient evidence from which a jury could have

found that respondent’s constitutional rights had been

violated. It stated (id. at 6-7 (citation omitted) ):

[A] proper standard deems [the] eighth amend-

ment to have been violated when the force used

The district court stated that it “[did] not understand

[respondent] to assert an independent violation of fourteenth

amendment due process” (Pet. App. 23 n.1). The court also

held (id. at 35-39) that respondent’s state law tort claims were

barred because petitioners were immune from liability under

state law.

6

is “so unreasonable or excessive to be clearly dis-

proportionate to the need reasonably perceived

by prison officials at the time.” Thus if a prison

official deliberately shot [respondent] under cir-

cumstances where the official, with due allowance

for the exigency, knew or should have known

that it was unnecessary, [respondent’s] consti-

tutional right would have been infringed.

The court observed that there was evidence that the

riot was subsiding at the time petitioners acted and

that “[t]he jury might have believed that conditions

were so improved that it was-or should have been

apparent to [petitioners], and have called for less

force” (id, at 8). The court noted that each side had

presented testimony concerning the propriety of peti-

tioners’ actions and “[i]t was the jury’s function to

weigh the experts’ testimony” (id. at 9). The court

therefore remanded for a new trial (id. at 9-10).

The court of appeals also addressed petitioners’

qualified immunity defense. It stated that a finding

of a violation of an inmate’s Eighth Amendment

rights is “inconsistent with a finding of good faith or

qualified immunity. The two findings are mutually

exclusive” (Pet. App. 10). Thus, “[i]f an eighth

amendment violation is found, there is no qualified

immunity defense available” (id. at 11).°

Judge Wright dissented (Pet. App. 11-14). He

agreed with the district court that “no triable issue

existed because the prison officials responded in good

faith to a genuine emergency,” stating that “[c]lose

judicial scrutiny is inappropriate where prison offi-

cials react in good faith to a true crisis” (id. at 12).

With respect to the qualified immunity issue, Judge

’ The court of appeals affirmed the district court’s dismissal

of respondent’s state law tort claims (Pet. App. 11).

an

7

Wright observed that the majority had “merge[d]”

the question whether there was a violation of Eighth

Amendment rights with “the question whether a right

is ‘clearly established’ for qualified immunity pur-

poses” (id. at 13). He concluded that these constitu-

tional rights were not clearly established, noting

(ibid.) that “[n]o 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.”

SUMMARY OF ARGUMENT

A. Prison officials are charged with the “monu-

mental task[]” (Hudson v. Palmer, No. 82-1630

(July 3, 1984), slip op. 9) of maintaining the safety

and security «f institutions housing proven law-

breakers, in which violence is an unavoidable fact

of life. In the incident at issue here, for example,

inmates took control of a cellblock, assaulted one

guard, and held another guard hostage and threatened

his life. Petitioners were required to use force to

rescue the hostage and reestablish control over the

cellblock.

The question in this case is whether petitioners’

actions violated respondent’s constitutional rights.

This Court consistently has adhered to the view that

prison officials’ determinations regarding prison se-

curity are entitled to “wide-ranging deference,” both

because of these officials’ expertise and because the

operation of prisons is 4 matter within the province

of the executive and legislative branches. Such def-

erence is especially appropriate when security deci-

sions are evaluated under the Eighth Amendment

because the Amendment only establishes a minimum

8

standard for _pyison officials’ actions, barring the

“ “annecessa "Banton infliction of pain.’” Estelle v.

Gamble, 429 U.S. 97, 103 (1976).

A prison security measure that is a reasonable re-

sponse to security concerns does not constitute “pun-

ishment” under the Due Process Clause (Bell v.

Wolfish, 441 U.S. 520, 539-540 (1979)), and there-

fore cannot violate the Eighth Amendment’s prohibi-

tion against cruel and unusual punishment. More-

over, even a security measure that is unreasonable

may not result in the “unnecessary and wanton in-

fliction of pain”; the Eighth Amendment is violated

only if the measure does inflict pain upon an inmate

and is so grossly excessive in view of the security

concerns it is designed to address that it can fairly

be said to have a punitive component unrelated to

the maintenance of security.

The court below plainly erred by holding that re-

spondent had raised a jury question concerning the

propriety of petitioners’ conduct under the Eighth

Amendment. In view of the serious threat that the

riot posed to the safety of both corrections officers

and inmates, the district court correctly concluded

that petitioners’ use of force to quell the riot did not

constitute cruel and unusual punishment. Respond-

ent’s evidence at most created an issue as to whether

petitioners made the best possible decisions under the

circumstances; it did not show that petitioners’ ac-

tions were grossly excessive or amounted to the

wanton infliction of pain.

B. Even if petitioners’ actions did violate respond-

ent’s Eighth Amendment rights, petitioners are im-

mune from liability for damages. This Court held in

Harlow vy. Fitzgerald, 457 U.S. 800 (1982), that

monetary liability is appropriate only if a public

oniiaaiuiliilimiinal

9

official violates a constitutional right that was “clearly

established” at the time of his unlawful conduct.

Since no decisions had addressed the propriety under

the Eighth Amendment of the use of force to quell a

prison riot, respondent’s rights in this context ob-

viously were not clearly established.

The court of appeals’g rejection of petitioners’ im-

munity defense apparently rested on its view that an

official is not entitled to immunity if the relevant

general legal standard is clearly established at the

time of the challenged conduct. This rule ignores the

fact that it often is not at all clear how a general

standard applies to the particular situation in which

the official is required to act. Here, for example,

standards such as “cruel and unusual punishment” or

“deliberate indifference” to inmates’ rights provide

no guidance concerning the application of the Eighth

Amendment to petitioners’ conduct. Thus, the court

of appeals’ approach is fundamentally at odds with

this Court’s repeated statements that an official is

entitled to immunity unless he reasonably could have

known that his conduct was unlawful. Since peti-

tioners had no basis even to question the constitu-

tionality of their actions, they are entitled to im-

munity from liability for damages.

10

ARGUMENT

RESPONDENT CANNOT RECOVER DAMAGES UN-

DER 42 U.S.C. 1983 FOR PETITIONERS’ CONDUCT IN

QUELLING A PRISON RIOT

The parties and the courts below have charac-

terized the question in this case as whether peti-

tioners’ conduct in quelling the prison riot violated

the Eighth Amendment’s prohibition of “cruel and

unusual punishments.” * As a threshold matter, we

are not certain that petitioners’ action should be

evaluated under the Eighth Amendment.

There is no evidence that petitioners intended to

inflict “punishment” on respondent or any other in-

mate. Respondent argues only that, in restoring

prison security, petitioners used force that was ex-

cessive under the circumstances. In addition, re-

spondent’s claim does not rest upon the breach by

prison officials of an affirmative obligation arising

solely as a result of respondent’s incarceration, such

as the obligations to provide sanitary living condi-

tions and access to medical care discussed in this

Court’s previous Eighth Amendment cases. See

Rhodes v. Chapman, 452 U.S. 337, 347-348 (1981) ;

Estelle v. Gamble, 429 U.S. 97, 103 (1976). The

right relied upon by respondent in this case is not

unique to persons who are incarcerated after being

convicted of a criminal offense; all persons are pro-

tected by the Constitution against the use of exces-

sive force by law enforcement officers. See, e.g.,

United States v. Price, 383 U.S. 787 (1966); Screws

v. United States, 325 U.S. 91 (1945). The conduct

* This Court has held that the Eighth Amendment is made

applicable to the states by the Fourteenth Amendment. See

Robinson Vv. California, 370 U.S. 660, 666 (1962).

11

challenged by respondent similarly is not by its na-

ture restricted to the prison setting; law enforcement

officers are confronted with riots and hostage-takings

on urban streets and in office buildings.

These factors suggest to us that the Eighth Amend-

ment may not govern the conduct at issue in this case.

Cf. Johnson v. Glick, 481 F.2d 1028, 1032 (2d Cir.),

cert. denied, 414 U.S. 1033 (1973). The constitu-

tionality of petitioners’ actions might more properly

be measured by the standard that applies to law en-

forcement officers’ conduct generally: whether peti-

tioners violated respondent’s due process rights be-

cause they used excessive force in responding to the

threat to prison security and safety posed by the riot.

481 F.2d at 1033; see also Norris v. District of Co-

lumbia, 737 F.2d 1148, 1150-1152 (D.C. Cir. 1984) ;

United States v. Harrison, 671 F.2d 1159, 1161-1162

(8th Cir.), cert. denied, 459 U.S. 847 (1982); Put-

man v. Gerloff, 639 F.2d 415, 420-421 (8th Cir.

1981).° In view of the approach taken by the parties

and the courts below, however, we have framed our

argument in Eighth Amendment terms.

A. Respondent Was Not Subjected To Cruel And Unusual

Punishment By Petitioners’ Actions In Suppressing

The Prison Riot

1. “Prisons, by definition, are places of involun-

tary confinement of persons who have a demonstrated

proclivity for antisocial criminal, and often violent,

conduct” (Hudson v. Palmer, No. 82-1630 (July 3,

1984), slip op. 8). There is an “ever-present poten-

tial for violent confrontation and conflagration”

(Jones v. North Carolina Prisoners’ Labor Union,

® Petitioners’ actions plainly did not violate this standard

(see pages 22-24, infra).

12

Inc., 433 U.S. 119, 132 (1977)). The close quarters

in which inmates live and work and the constant

supervision of inmates by corrections officers com-

bine to create a volatile atmosphere of tension, frus-

tration, resentment, and despair. The violent conduct

by inmates that all too often results—directed against

prison officials as well as fellow inmates—is an un-

fortunate, but unavoidable, fact of life in our Na-

tion’s prisons. See Hudson v. Palmer, slip op. 8;

Wolff v. McDonnell, 418 U.S. 539, 562 (1974).°

Prison administrators are charged with the “monu-

mental task[]” (Hudson v. Palmer, slip op. 9) of pro-

tecting the security of the institution and the safety

of guards and other prison officials, inmates, and

visitors in the face of these difficult conditions. As

this Court has emphasized, “central to all other cor-

rections goals is the institutional consideration of

internal security within the corrections facilities

themselves.” Pell v. Procunier, 417 U.S. 817, 823

(1974); see also Bell v. Wolfish, 441 U.S. 520, 546-

547 (1979). Thus, the issue presented here—the

limits imposed by the Eighth Amendment upon prison

officials’ actions to protect safety and security in cor-

rectional institutions—is of overriding practical im-

portance to prison administration.

2. This Court has made clear that the Eighth

Amendment’s prohibition of cruel and unusual pun-

* Recent statistics concerning prison violence confirm this

Court’s observations in Hudson (slip op. 8) regarding the

seriousness of this problem. During 1983 and the first half of

1984 there were over 30 riots or similar disturbances in the

Nation’s prisons, over 150 killings of inmates by other pris-

oners, nine killings of prison personnel by inmates, and several

thousand assaults by inmates upon prison personnel. See

Prison Violence Corrections Compendium 1, 6-10 (April

1985).

13

ishment “proscribes more than physically barbarous

punishments” (Estelle v. Gamble, 429 U.S. at 102).

Penal measures that involve the “ ‘unnecessary and

wanton infliction of pain’ ” have been found to violate

the Eighth Amendment. /d. at 103, quoting Gregg v.

Georgia, 428 U.S. 1538, 173 (1976) (plurality opin-

ion). For example, deliberate indifference to the med-

ical needs of prison inmates constitutes cruel and un-

usual punishment because it can be the equivalent of

physical torture or result in “pain and suffering

which no one suggests would serve any penological

purpose” (Gamble, 429 U.S. at 103). Similarly, the

conditions of prison inmates’ confinement—their liv-

ing and working environment and the punishment

inflicted upon them for misconduct—may violate the

Eighth Amendment if the conditions are such that

they amount to cruel and unusual punishment.

Rhodes v. Chapman, 452 U.S. at 346-347; Hutto v.

Finney, 437 U.S. 678, 685 (1978).

On the other hand, the Eighth Amendment plainly

does not bar prison officials from taking measures to

protect the safety and security of correctional insti-

tutions, even if such actions result in the infliction of

pain upon inmates. The Amendment reaches only

punitive official action that is “unnecessary and wan-

ton’; security measures further the “central” cor-

rectional goals of safety and security. This Court re-

cently observed in the Fourth Amendment context

that a prisoner has no legitimate expectation of

privacy in his cell because “society would insist that

the prisoner’s expectation of privacy always yield to

what must be considered the paramount interest in

institutional security” (Hudson v. Palmer, slip op.

10). Similarly, the Eighth Amendment does not bar

14

prison officials from acting to protect the institution’s

security and safety.

This is not to say that any rule, practice, or act

will pass constitutional muster—assuming that the

Eighth Amendment supplies the relevant standard—

simply because it is labeled a security measure. For

example, the wholly unjustified infliction of severe in-

juries upon an inmate by a corrections officer might

well amount to cruel and unusual punishment. See,

e.g., Williams v. Mussomelli, 722 F.2d 1130 (3d Cir.

1983); King v. Blankenship, 636 F.2d 70 (4th Cir.

1980); Inmates of Attica Correctional Facility v.

Rockefeller, 453 F.2d 12, 23-24 (2d Cir. 1971). The

relevant factors are whether the challenged action

was motivated by genuine security concerns and

whether it was so wholly excessive in view of the

concerns it was designed to address that it rose to the

level of cruel and unusueé] punishment.

This is not the first context in which this Court has

been called upon to delineate the proper scope of

judicial oversight of prison security decisions. The

Court previously has rejected challenges to prison se-

curity measures under the First Amendment, the

Fourth Amendment, the Fifth Amendment, and the

Due Process Clause of the Fourteenth Amendment,

repeatedly affirming that “[p]rison administrators

* * * should be accorded wide-ranging deference in

the adoption and execution of policies and practices

that in their judgment are needed to preserve in-

ternal order and discipline and to maintain institu-

tional security” (Bell v. Wolfish, 441 U.S. at 547).

This deference “is accorded not merely because the

administrator ordinarily will, as a matter of fact in

a particular case, have a better grasp of his domain

than the reviewing judge, but also because the op-

15

eration of our correctional facilities is peculiarly the

province of the Legislative and Executive Branches

of our Government, not the Judicial.” Jd. at 548; see

also Hudson v. Palmer, slip op. 9-10; Block v.

Rutherford, No. 83-317 (July 3, 1984), slip op. 8-9;

Jones v. North Carolina Prisoners’ Labor Union, Inc.,

433 U.S. at 126, 128; Pell v. Procunier, 417 U.S. at

826-827.

In Bell v. Wolfish, supra, the Court addressed a

challenge under the Fifth Amendment to several rules

and practices designed to promote the security of a

correctional institution housing pretrial detainees.’

The Court observed that the Fifth Amendment, rather

than the Eighth Amendment, supplied the relevant

constitutional standard because “a [pretrial] de-

tainee may not be punished prior to an adjudication

of guilt in accordance with due process of law” (441

U.S. at 5385 (footnote omitted) ). It held that “[r]e-

straints that are reasonably related to the institu-

tion’s interest in maintaining jail security do not,

without more, constitute unconstitutional punish-

ment” (id. at 540) and therefore do not violate due

process. If, on the other hand, the restraints are

“arbitrary or purposeless,” they cannot be justified

as security measures and amount instead to imper-

missible punishment (id. at 539).

7 At issue in Bell were (1) a rule permitting inmates to re-

ceive hardback books only if the books were mailed directly

from a publisher, bookstore, or book club; (2) a rule barring

inmates from receiving packages containing food or personal

property except for one package of food at Christmas; (3) the

practice of conducting unannounced searches of inmate living

areas; and (4) a rule requiring inmates to expose their body

cavities for inspection in the course of a strip search following

a contact visit with a person from outside the institution. See

441 U.S. at 548-560.

16

Under the standard set forth in Bell, the party

challenging a prison security measure bears the

“heavy burden of showing that [prison] officials have

exaggerated their response to the genuine security

considerations that actuated [the challenged] restric-

tions and practices” (441 U.S. at 561-562), taking

into account the “wide-ranging” deference accorded

to prison officials’ determinations in this area (id. at

562, 540-541 n.23). The Court in Bell held that this

standard had not been met and upheld the challenged

security measures.

Recently, in Block v. Rutherford, supra, the Court

again rejected a due process challenge to security

measures applicable to pretrial detainees. The dis-

trict court in that case declared unconstitutional the

prison’s policy barring contact visits between inmates

and their relatives and friends, holding that the

policy was an excessive response to security concerns.

This Court rejected that conclusion. It found that the

relevant inquiry was whether the policy was “reason-

ably related to the security of [the] facility” (slip

op. 10). Observing that the district court had recog-

nized that many security considerations weighed in

favor of the prison’s policy, this Court held that

“Tw]hen the District Court found that many factors

counseled against contact visits, its inquiry should

have ended. The court’s further ‘balancing’ resulted

in an impermissible substitution of its view on the

proper administration of [the prison] for that of

the experienced administrators of that facility” (id.

at 12-13).°

® This Court discussed the application of this type of reason-

ableness standard in a somewhat related context in Youngberg

v. Romeo, 457 U.S. 307 (1982). Youngberg concerned the

constitutional rights of mentally retarded persons involun-

17

In our view, the test applied in Bell and Block

provides an appropriate starting pcint for assessing

a security measure under the Eighth Amendment.’

The administration of a prison is “at best an extraor-

dinarily difficult undertaking” (Wolff v. McDonnell,

418 U.S. at 566), and, as discussed above (see pages

11-12 and note 6, supra), where security and

safety are concerned the task facing prison officials is

tarily committed to state facilities. The Court held that the

conditions under which such persons are confined—their free-

dom of movement, their safety within the institution, and the

training provided by the state—must satisfy a reasonableness

standard: “ ‘the courts [are required to] make certain that

professionai judgment in fact was exercised. It is not appro-

priate for the courts to specify which of several professionally

acceptable choices should have been made’” (id. at 321).

Relying in part upon its prior decisions in the prison context

(id. at 322 n.29), this Court stated that “courts must show

deference to the judgment exercised by a qualified profes-

sional” (id. at 322). It concluded that “‘the decision, if made

by a professional, is presumptively valid; liability may be

imposed only when the decisic- by the professional is such a

substantial departure from avcepted professional judgment,

practice, or standards as to demonstrate that the person re-

sponsible actually did not base the decision on such a judg-

ment” (id. at 323 (footnotes omitted) ).

® The ultimate inquiry in Bell and Block—whether a par-

ticular condition of confinement constitutes “punishment”

and is, simply by virtue of that fact, prohibited—is not rele-

vant in this context because, unlike pretrial detainees, con-

victed inmates such as respondent can be punished. Indeed,

the determination that the Eighth Amendment supplies the

standard applicable to petitioners’ actions carries with it the

conclusion that security measures of the sort at issue here are

an element of punishment analogous to the size and sanitary

condition of an inmate’s cell (see pages 10-11, supra). The

question is whether a security measure violates the Eighth

Amendment because it is “cruel and unusual.”

18

“monumental” (Hudson v. Palmer, slip op. 9). The

deference accorded to prison administrators’ security

decisions in other contexts is just as appropriate

when such decisions are reviewed under the Eighth

Amendment. See Rhodes v. Chapman, 452 U.S. at

349 n.14 (“a prison’s internal security is peculiarly

a matter normally left to the discretion of prison ad-

ministrators’’).”°

Furthermore, even if a security measure fails to

satisfy this standard because it is not reasonably re-

lated to the need to maintain order, the measure does

not necessarily constitute cruel and unusual punish-

ment. Cruel and unusual punishment is the “ ‘un-

necessary and wanton infliction of pain.’” Gamble,

429 U.S. at 103; see also Ingraham v. Wright, 430

U.S. 651, 670 (1977). The challenged conduct thus

must result in pain analogous to that caused by physi-

cal torture or indifference to inmates’ serious medical

needs. Cf. Gamble, 429 U.S. at 103-104.

The official action also must be “wanton.” In other

words, the action must depart from the bounds of

reasonable conduct to a degree that fairly indicates

the presence of a punitive component unrelated to

10 The present case differs from Bell and Block in that what

is challenged here is a decision by prison officials to take

emergency action in response to a specific threat to prison

security; this Court’s previous decisions addressed security

policies of general application. The emergency nature of the

situation obviously is relevant in determining whether the

officials acted reasonably. Even the court of appeals acknow]l-

edged that “[prison] authorities must be allowed a reasonable

latitude for the exercise of discretion in determining the

appropriate response to a crisis.” Pet. App. 6; see also John-

son V. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414

U.S. 1033 (1973). Thus, in determining whether a particular

security measure is reasonable, a court must give due consid-

eration to any exigent circumstances facing the prison officials.

19

the maintenance of prison security.’ Just as prison

medical care violates the Eighth Amendment only if

it is so grossly improper that it evidences deliberate

indifference to the inmate’s serious medical needs, a

prison security measure is unconstitutional only if it

is a grossly excessive response to legitimate security

concerns.”

3. a. Although the court below used terms such

as “disproportionate” and “excessive” to describe the

relevant legal standard (Pet. App. 6), it did not

apply those concepts to the facts of this case. The

court instead adopted a rule that tightly restricts

the diseretion of prison officials. It stated that an

The Eighth Amendment establishes a lower limit upon

the permissible range of prison officials’ conduct; it does not

set particular standards amounting to a model code of prison

administration. Cf. Rhodes v. Chapman, 452 U.S. at 347, 348-

349 n.13. Specific standards for the operation of prisons are

supplied by the statutory and regulatory rules that govern

the actions of prison officials. For example, at the time of the

events at issue in this case the State of Oregon had an estab-

lished policy concerning the use of force to maintain security

and safety in correctional institutions (see Tr. 236-237).

2 The courts of appeals generally have followed a similar

approach in evaluating claims that prison security measures

violated an inmate’s Eighth Amendment rights. For example,

in Williams v. Mussomelli, supra, the court of appeals ap-

proved a jury instruction stating that the inmate had a right

“not to be subjected to unnecessary, unreasonable, and grossly

excessive force by prison officials” and that such officials

could not use force that “violates the standards of decency

more or less universally accepted.” 722 F.2d at 1132; see also

Soto v. Dickey, 744 F.2d 1260 (7th Cir. 1984), cert. denied,

No. 84-1327 (Mar. 25, 1985) ; Jones v. Mabry, 723 F.2d 590,

596 (8th Cir. 1983), cert. denied, No. 83-6480 (June 4, 1984) ;

Sampley v. Ruettgers, 704 F.2d 491, 495-496 (10th Cir. 1983) ;

cf. Johnson V. Glick, 481 F.2d at 1033.

20

Eighth Amendment violation would be established if

the prison officials “knew or should have known that

it was unnecessary” to use armed force in order to

quell the riot (Pet. App. 6-7).

The court of appeals appears to have based its

rule upon the tort standard governing the use of

force. Compare Restatement (Second) of Torts § 132

(1965) (use of force to effect an arrest “is not privi-

leged if the means employed are in excess of those

which the actor reasonably believes to be necessary’’) ;

see also id. § 70(1). This Court already has rejected

the view that the Eighth Amendment constitutional-

izes state tort law. In Gamble, the Court held that

“a complaint that a physician has been negligent in

diagnosing or treating a medical condition does not

state a valid claim of medical mistreatment under the

Eighth Amendment. Medical malpractice does not

become a constitutional violation merely because the

victim is a prisoner.” 429 U.S. at 106; cf. Parratt

v. Taylor, 451 U.S. 527, 544 (1981); Baker v. Mc-

Collan, 443 U.S. 137, 142, 146 (1979).

Moreover, the court of appeals’ rule provides for

considerably more judicial intrusion into prison se-

curity decisions than the tests previously applied by

this Court, and therefore violates this Court’s re-

peated injunction that prison officials’ decisions must

be accorded broad deference (see pages 14-16, supra).

Indeed, the standard resembles the “compelling neces-

sity” test that this Court in Bell deemed overly re-

strictive of prison officials’ discretion (see 441 U.S.

at 531-540). Thus, the court of appeals failed to

apply the correct legai standard in evaluating re-

spondent’s claim.

b. The court of appeals also stated that an Eighth

Amendment violation could be established by a show-

ee ee

21

ing that the prison officials acted with “deliberate in-

difference” to respondent’s right “to be free of cruel

and unusual punishment” (Pet. App. 7). Acknowledg-

ing that this standard was developed by this Court in

Gamble to identify situations in which the denial of

medical care to inmates constitutes cruel and unusual

punishment, the court of appeals found that the same

standard “may appropriately be applied to test the

constitutionality of other exercises of professional

judgment by prison officials that result in harm to

prisoners” (Pet. App. 7).

The court below erred by utilizing this standard in

the present context. The deliberate indifference test

was designed to measure claims that prison officials

had not fulfilled their affirmative obligation to pro-

vide medical care to inmates (see Estelle v. Gamble,

429 U.S. at 103). In selecting an appropriate se-

curity measure, by contrast, prison officials take into

account much more than a single affirmative obliga-

tion. They must balance a number of competing

factors, such as the safety of guards, the safety of

inmates, and the institutional interest in restoring

order, and consider as well the adverse effect that a

proposed security measure might have upon the in-

terests of inmates, guards, and the institution itself.

An allegation that prison officials were “deliberately

indifferent” to one of these factors—the infliction of

pain upon inmates—may be relevant to determining

whether the security action was appropriate, but is

not by itself sufficient to show that a prison official

acted wantonly in carrying out his obligation to main-

tain the saf. and security of the institution. That

determination can only be made on the basis of an

assessment of all of the relevant factors. Therefore,

the deliberate indifference standard simply is not a

22

proper measure of the constitutionality of prison se-

curity actions.

ce. Judged against the appropriate standard, it is

clear that petitioners’ actions did not violate the

Eighth Amendment. Petitioners confronted a situa-

tion in which one guard had been assaulted, threats

had been made against a guard who was being held

hostage and against other inmates, one inmate was

known to have a knife, an inmate reportedly had

been killed, and attempts to negotiate an end to the

disturbance had proven unsuccessful. These facts un-

questionably justified some security response by peti-

tioners, including the use of force; viewing the evi-

dence in the light most favorable to respondent,” a

jury could not reasonably find that petitioners’ actions

were grossly excessive or wanton.

It is undisputed that petitioners evaluated possible

courses of action, reasonably determined that certain

alternatives—such as the use of tear gas—were not

appropriate in this situation because they might

jeopardize the safety of the hostage, and concluded

that the use of force was necessary to protect the

hostage and the other inmates. Although it is un-

fortunate that respondent was injured, the officials

understandably believed that he posed a threat to

both the hostage and the rescue party. See Pet. App.

26-30 (district court opinion). The district court cor-

rectly concluded that “[e]ven in hindsight, it cannot

be said that [petitioners’] actions were not reason-

ably necessary” (id. at 30).

13 In evaluating the propriety of a decision to grant a motion

for a directed verdict, “all reasonably possible inferences

[should be drawn in favor of] the party whose case is at-

tacked.” Galloway v. United States, 319 U.S. 372, 395 (19438) ;

see generally 9 C. Wright & A. Miller, Federal Practice and

Procedure § 2524 (1971).

23

The court of appeals held that there was a jury

question concerning the lawfulness of petitioners’ con-

duct on the basis of respondent’s contentions that the

riot had begun to subside and that prison officials

could have reasserted control by using a lesser amount

of force (see Pet. App. 8-9). Respondent’s expert

witnesses testified that petitioners “were possibly a

little hasty in using” armed force (Tr. 314) and that

petitioners should have attempted to quell the riot

using alternative methods short of the use of force

(Tr. 266-270).

This Court has emphatically rejected precisely this

type of second-guessing of prison administrators’ de-

cisions, and it should do so again here. As we have

discussed, it is clear that petitioners acted reasonably

in response to a crisis posing unquestionably grave

security concerns; even respondent’s experts, viewing

the matter with two years’ hindsight, did not testify

that petitioners’ actions were grossly excessive or

clearly arbitrary." In view of these facts, the court’s

“inquiry should have ended” (Block v. Rutherford,

slip op. 18). The dispute over whether petitioners’

actions constituted the ideal response under the cir-

cumstances is not sufficient to create an issue for the

jury under the Eighth Amendment, especially in view

of the fact that petitioners acted in the face of im-

mediate threats to the lives of inmates and a cor-

* Petitioners’ expert witnesses testified that petitioners’

ac. ons were the most reasonable response to the situation. See

Tr. 436-439, 547-554. In any event, it is the “public attitude”

toward the challenged conduct, not the subjective views of

experts, that is relevant in determining whether the conduct

violates the Eighth Amendment. Rhodes v. Chapman, 452

U.S. at 348-349 n.13; Gregg v. Georgia, 428 U.S. at 173 (plu-

rality opinion).

24

rections officer. Petitioners’ actions clearly fell within

“(t]he wide range of ‘judgment calls’ that * * * are

confided to officials outside of the Judicial Branch of

Government” (Bell v. Wolfish, 441 U.S. at 562).

They plainly did not amount to the grossly excessive

conduct that constitutes “unnecessary and wanton in-

fliction of pain” violative of the Eighth Amendment.

B. Petitioners Are Immune From Liability For Damages

Under This Court’s Decision In Harlow v. Fitzgerald

It is settled that “government officials performing

discretionary functions, generally are shielded from

liability for civil damages insofar as their conduct

does not viciate clearly established statutory or con-

stitutionai rights of which a reasonable person would

have known.” Harlow v. itzgerald, 457 U.S. 800,

818 (1982); see also Mitchell v. Forsyth, No. 84-335

(June 19, 1985), slip op. 18; Davis v. Scherer, No.

83-490 (June 28, 1984), slip op. 7. The court of ap-

peals concluded that a finding on remand that peti-

tioners violated respondent’s Eighth Amendment

rights automatically would defeat petitioners’ quali-

fied immunity defense. It stated that “[a] finding

of deliberate indifference [to respondent’s right to be

free of cruel and unusual punishment] is inconsistent

with a finding of good faith or qualified immunity.”

Pet. App. 10.

Even if the court of appeals correctly concluded

that petitioners might have violated respondent’s

Eighth Amendment rights, it erred by holding that a

state official is never entitled to immunity in an ac-

tion based upon a violation of the Eighth Amend-

ment. Indeed, the court’s decision reflects a funda-

25

mental misconception of the rule established by this

Court in Harlow.”

Harlow rests upon the principle that a public off-

cial should be held liable in damages only if he reason-

ably could have known that the law forbade his con-

duct. The official who acts unlawfully in such

circumstances “should be made to hesitate; and a

person who suffers injury caused by such conduct may

have a cause of action” (Harlow, 457 U.S. at 819

(footnote omitted) ). If, on the other hand, “an offi-

cial’s duties legitimately require action in which

clearly established rights are not implicated, the pub-

lic interest may be better served by action taken

‘with independence and without fear of conse-

quences.’”’ Ibid. (quoting Pierson v. Ray, 386 U.S.

547, 554 (1967) ).

Petitioners could not possibly have been aware in

June 1980 that their actions violated respondent’s

Eighth Amendment rights. We have not located a

single appellate decision discussing the circumstances

in which the Eighth Amendment might be violated by

the use of armed force to control a prison riot. In-

deed, the decisions of that time concerning Eighth

Amendment challenges to prison officials’ actions in

quelling disturbances indicated that officials had

broad discretion in such circumstances to act to elimi-

nate the threat to security and safety. Poindexter v.

Woodson, 510 F.2d 464 (10th Cir.), cert. denied, 423

U.S. 846 (1975); Clemmons v. Greggs, 509 F.2d

This case does not present a question concerning the

relationship between qualified immunity from liability for

damages under 42 U.S.C. 1983 and criminal liability under

18 U.S.C. 242. Cf. United States v. Gillock, 445 U.S. 360,

372-373 (1980); Imbler v. Pachtman, 424 U.S. 409, 429

(1976).

26

1338, 1339-1340 (5th Cir.), cert. denied, 423 U.S.

946 (1975); Davis v. United States, 439 F.2d 1118

(8th Cir. 1971) ; ef. Spain v. Procunier, 600 F.2d 189,

196 (9th Cir. 1979) (modifying district court order

to reduce restrictions on use of tear gas).

Decisions finding violations of the Eighth Amend-

ment in the prison context were restricted to claims

of unjustified assaults upon inme es by prison guards.

See, e.g., Inmates of Attica Correctional Facility v.

Rockefeller, 453 F.2d at 23-24. Thus, the district

court correctly found that “there was no clearly es-

tablished constitutional right to be free from the use

of deadly force administered for the necessary pur-

pose of quelling a prison riot and rescuing a hostage”

(Pet. App. 34) and that petitioners therefore “could

not have reasonably known that actions taken to quell

the disturbance and rescue the hostage would violate

any prisoner’s constitutional rights” (id. at 35).*°

The court of appeals did not question the district

court’s holding that the decided cases provided no

16 A court should require especially strong evidence before

holding that a right was clearly established if the right in-

volves limitations upon official action in life-threatening emer-

gency situations, such as the prison riot confronted by peti-

tioners in this case. As this Court observed in an analogous

context, “[w]hen a condition of civil disorder in fact exists,

there is obvious need for prompt action” (Scheuer v. Rhodes,

416 U.S. 232, 246 (1974)). Moreover, “[d]ecisions in such

situations are more likely than not to arise in an atmosphere

of confusion, ambiguity, and swiftly moving events and when,

by the very existence of some degree of civil disorder, there

is often no consensus as to the appropriate remedy” (id. at

246-247). Since public officials who must act in such situations

necessarily have less time to evaluate all of the implications

of their chosen course of action, a right would have to be

quite clearly established to inform a reasonable person that

his action would be unlawful.

27

guidance concerning the application of the Eighth

Amendment in this context. The court of appeals’

conclusion that qualified immunity is never a defense

to an Eighth Amendment claim appears to be based

upon the view that all Eighth Amendment rights be-

came clearly established when this Court adopted the

“deliberate indifference” test in Gamble.’ Even if the

relevant legal standard is settled, however, the ap-

plication of that standard in a particular factual set-

ting often will be uncertain; the right in question

cannot be deemed “clearly established” in that cir-

cumstance. For example, in Davis v. Scherer, supra,

the question was whether state officials’ failure to

iola 2 hearing prior to the termination of the plain-

tiff’s employment violated the plaintiff’s clearly es-

tablished due process rights. This Court observed

that its previous decisions required “ ‘some kind of a

hearing’ ” in this context, but concluded that the plain-

tiff’s right to a pre-termination hearing was not

clearly established because the Court had not yet

“specif[ied] any minimally acceptable procedures for

termination of employment” (Davis v. Scherer, slip

op. 8 n.10). Davis makes clear that the existence of

a general legal standard is irrelevant under Harlow;

the unconstitutionality of the official’s conduct in the

particular situation at issue must be clearly estab-

17 Alternatively, the court of appeals’ statement that “[a]

finding of deliberate indifference is inconsistent with a finding

of good faith or qualified immunity” (Pet. App. 10) could

mean that an official who acts with deliberate indifference

necessarily does not act in subjective good faith, and there-

fore is not entitled to an immunity defense. The flaw in this

reasoning is that it ignores this Court’s determination in

Harlow that an official’s subjective intent is irrelevant in

ascertaining whether he is entitled to immunity (457 U.S. at

815-819).

28

lished in order to defeat an immunity claim. Cf.

United States v. Leon, No. 82-1771 (July 5, 1984),

slip op. 22-24 & n.23.

The premise of Harlow is that the imposition of

monetary liability is appropriate when an official vio-

lates a clearly established right because the official

“could be expected to know that [his] conduct would

violate statutory or constitutional rights” (457 U.S. at

819). Broad standards such as “due process,” “equal

protection,” or “cruel and unusual punishment” do

not by themselves provide sufficient information to

enable a reasonable public official to conform his con-

duct to the requirements of the Constitution. There-

fore, the fact that a legal standard is settled can-

not alone deprive an official of qualified immunity.

Hobson v. Wilson, 737 F.2d 1, 26 (D.C. Cir. 1984),

cert. denied, No. 84-1139 (Mar. 25, 1985) (stating that

an interpretation of Harlow requiring only that the

broadly-defined right be clearly established “would,

of course, undermine the premise of qualified immu-

nity that the Government actors reasonably should

know that their conduct is problematic”) (emphasis

in original) ; see also Floyd v. Farrell, 765 F.2d 1, 5-

6 (1st Cir. 1985); Zook v. Brown, 748 F.2d 1161,

1164-1165 (7th Cir. 1984); Evers v. County of Cus-

ter, 745 F.2d 1196, 1203 (9th Cir. 1984); Bailey v.

Turner, 735 F.2d 968, 970, 972 (4th Cir. 1984);

Brockell v. Norton, 732 F.2d 664 (8th Cir. 1984);

O’Hagan v. Soto, 725 F.2d 878, 879 (2d Cir. 1984) ;

but see Bass v. Wallenstein, No. 83-2392 (7th Cir.

July 30, 1985), slip op. 22; Bates v. Jean, 745 F.2d

1146, 1151-1152 (7th Cir. 1984); Trejo v. Perez, 693

F.2d 482, 488 & n.10 (5th Cir. 1982).*

18 In some cases in which courts of appeals have rejected an

immunity claim on the ground that the legal standard was

29

If the adoption of a legal standard such as “delib-

erate indifference” or “clearly excessive force” were

by itself sufficient to deprive prison officials of quali-

fied immunity in every case in which that standard

applied, these officials would have no way of knowing

in advance whether their decisions might iater be the

basis of a successful action for money damages. This

result “would undoubtedly deter even the most :on-

scientious [prison administrator] from exercising his

judgment independently, forcefully, and in a manner

best serving” the correctional system (Wood vy. Strick-

land, 420 U.S. 308, 319-3820 (1975) ). It would “con-

tribute not to principled and fearless decision-making

but to intimidation” (Pierson v. Ray, 386 U.S. at

554)—the very result that qualified immunity is de-

signed to prevent.

We do not contend that a right is clearly estab-

lished only after the precise factual situation has been

addressed authoritatively in judicial decisions. The

proper inquiry is whether a reasonable person would

have known that the challenged conduct was unlawful

on the basis of the existing case law. As liscussed

above, petitioners are entitled to immunity because a

reasonable prison official could not have known of the

limits imposed by the Eighth Amendment upon the

use of force to quell a prison riot.

clearly established, immunity might have been barred under

the proper legal test. See Bates v. Jean, supra (use of com-

pletely unwarranted force).

30

CONCLUSION

The judgment of the court of appeals shoud be

reversed.

Respectfully submitted.

CHARLES FRIED

Acting Solicitor General

RICHARD K. WILLARD

Acting Assistant Attorney General

KENNETH §8. GELLER

Deputy Solicitor General

ANDREW J. PINCUS

Assistant to the Solicitor General

AUGUST 1985

W ov. S. GOVERNMENT PRINTING orrice; 1965 46153! 10275