Opposition Brief — Rowe v. DeBruyn

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In The | OEE OF THE CLERK

SUPREME COURT OF THE UNITED STATES il

OCTOBER TERM, 1994

No. 94-249

JOHN S. ROWE, Petitioner,

v.

H. CHRISTIAN DeBRUYN, JACK DUCKWORTH,

MICHAEL J. WATSEN, LACY MORRIS, and

RICK L. ROBINSON, Respondenis.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

RESPONDENTS' BRIEF IN OPPOSITION

PAMELA CARTER

Attorney General of Indiana

Jon Laramore

Deputy Attorney General

Counsel of Record

402 W. Washington St.

Indianapolis, IN 46204

(317) 232-6315

Attorneys for Respondents

QUESTION PRESENTED

Whether a prisoner's due process rights are violated

when he receives no punishment in a prison disciplinary

because the disciplinary body considers self-defense a

mitigating factor, but does not permit the prisoner to assert

self-defense as a complete defense in the disciplinary

proceeding?

Qunctitens Femme: iss Fo kcchsazssc fedeins teats i

SOMONE OT GG GIG a oo hel ia ct ecisvbudactdanedadte 1

Reasons for Denying the Writ of Certiorari .......... 5

I. This Case Does Not Actually Present

The Question In the Petition .............cccccsece 5

II. Rowe Waived His Substantive Due

Process Claim by Not Raising It

SD Te I ND Saha ke ade eces Sex icsnéaciadnnns 6

III. This Case Presents No Important

tT Or err ore 7

IV. The Decision of the Court of Appeals Is Correct . 8

CII o'dikisc be otksae vine 12

Table of Authorities

Cases

Block v. Rutherford, 468 U.S. 576 (1984) .......... 11

Bowers v. Hardwick, 478 U.S. 186,

reh. denied, 478 U.S. 1039 (1986) ...............-+-. 8

a er ee kee U.S. 1033 (1987) .... 6

Gaston v. Taylor, 946 F.2d 340 (4th Cir. 1991) ..... 6

Glass v. Blackburn, 791 F.2d 1165

(Sth Cir. 1986),_cert. denied, 481 U.S. 1042 (1987) . 8

Palko v. Connecticut, 302 U.S. 319 (1937) .......... 9

State vy. Cowan, 861 P.2d 884 (Mont. 1993),

cert. denied, 114 U.S. 1371 (1994) ..........-..----. &

_ Turner v. Safley, ee 11

White v. Arn, 788 F.2d 338 (6th Cir. 1986),

cert. denied, 480 U.S. 917 (1987) ........--------++- 8

Statutes and Rules

Ind. Code § 35-41-3-2 .......... cece cece cence eens 6

Sup. Ct. R. 10.1(C) ......- cece eee e ence eee e reece eens 7

iil

Other

Augustine, Letter 47, reprinted in Select Library

of Nicene & Post-Nicene Fathers (Schaff ed. 1907) .

Brock, Pacifism in the United States (1968) .......... 9

Fabricant, Homicide in Response to a

Threat of Rape, 11 Goiden Gate L. Rev. 945 (1981) 12

Gandhi, Collected Writings

on Non-Violent Resistance (1951) .................. 10

Hanigan, Martin Luther King Jr. and the

Foundations of Nonviolence (1984) ................. 10

Matthew 5: 38-39 (Revised Standard) ................ 9

Indiana Dep't of Correction Adult

Disciplinary Policy & Procedures .................... 6

Peace & Nonviolence (Guinan ed. 1973) ......... 9,10

Sloan, Law of Self-Defense (1987) ................... 9

Universal Declaration of Human Rights .............. 9

iv

In The

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

No. 94-249

JOHN S. ROWE, Petitioner,

v.

H. CHRISTIAN DeBRUYN, JACK DUCK WORTH,

MICHAEL J. WATSEN, LACY MORRIS, and

RICK L. ROBINSON, Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

RESPONDENTS' BRIEF IN OPPOSITION

Respondents H. Christian DeBruyn, Commissioner of

the Indiana Department of Correction, et al., hereby oppose

. John S. Rowe's Petition for a Writ of Certiorari to the Court

of Appeals for the Seventh Circuit.

STATEMENT OF THE CASE

John Rowe, then a prisoner at the Indiana Reformatory,

was brought before a prison disciplinary body known as a

Conduct Adjustment Board on August 1, 1991, charged with

battery. a-25.' The Board, consisting of the three

correctional officers who are defendants in this case,

concluded that Rowe had struck another prisoner, Michael

Evans, on the head with a hot pot. Id. The Board imposed

punishment of one year in disciplinary segregation but

suspended the sentence because it considered Rowe's claim

of self-defense to be a mitigating circumstance. Id.

According to Rowe, Evans instigated the fight that led to

his sanction. a-2. Evans entered Rowe's cell, and Rowe

contends that Evans struck him first. Id. Rowe contends that

Evans entered Rowe's cell to rape Rowe. Id, There also was

evidence that Rowe had made sexual advances to Evans,

AAB 24, 33, but the Board made no finding on the issue.

The fight was broken up by guards and another inmate,

Richard Perez. Id.

Rowe, Evans and Perez all were disciplined for the

incident, although the record does not reveal the punishments

given Evans and Perez. Perez was disciplined because his

presence in Rowe's cell, even to break up a fight, violated

prison rules. AAB 25-27.

In deposition testimony on which Rowe relied, one

member of Rowe's Conduct Adjustment Board and the

Superintendent of the Reformatory testified that self-defense

cannot be a complete defense in a Board hearing. AAB 31,

40. The Board member stated in his affidavit that "[a]ny act

of violence or assaultive behavior by an inmate against

another inmate must result in the filing of a conduct report

and a guilty finding to deter such violence." §.A.3. The

Citations to the appendix of the Petition for Certiorari are

referred to as "a-__." Respondents adopt Petitioner's notation of "AAB

___" for Petitioner's Record Appendix in the Court of Appeals.

Respondents’ citations to"S.A.__" refer to Respondents’ Supplemental

Appendix in the Court of Appeals.

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Board member stated that recognizing self-defense as a

complete defense "would only encourage offenders to use

force in the name of self-defense and would provide a

recognized excuse for the use of force." Id. He also testified

that:

In the event of a fight where one offender is

clearly acting in self-defense, he is still

found guilty of it. If not, that's giving other

offenders the green light to go ahead and act

out as they feel -- any conduct reports that

we have for any act of violence, if they get

enough witnesses to say they were acting in

self-defense, that just gives other offenders

the green light to go out with a shank or

whatever and just do whatever they feel like

doing to other offenders, and I feel it would

just have an adverse effect on the security of

the institution.

AAB 34.

The Board member also testified that the Board

concluded that while Rowe initially may have acted in

self-defense, he ultimately used excessive force against

Evans, striking him three times on the head with a hot pot

AAB 33; S.A. 2. The District Court agreed that he used

excessive force. a-25. The Board determined, however, that

Rowe's defense of himself against Evans's aggressive actions

constituted mitigating circumstances and, therefore,

suspended the penalty. AAB 33; S.A. 2. "[W]hen

self-defense is proven, the Conduct Adjustment Board takes

that factor into account and may change that charge to a

lesser offense or consider self-defense as a mitigating factor

in the sanction imposed.” S.A. 4.

Rowe filed his complaint pursuant to 42 U.S.C. § 1983

on December 30, 1991. AAB 10. He named as defendants

James E. Aiken, former Commissioner of the Indiana

Department of Correction; Jack Duckworth, Superintendent

of the Indiana Reformatory; and Michael J. Watsen, Lacy

Morris and Rick L. Robinson, correctional officers who were

members of the Conduct Adjustment Board that heard

Rowe's case.

The District Court granted summary judgment in favor

of Defendants. a-24. The District Court ruled that because

Rowe had received a suspended sentence based on his claim

of self-defense, and neither served time in segregation nor

lost sentence credits, the disciplinary proceeding did not

affect any protected liberty interest. a-27. The District Court

also ruled that Indiana's policy not to recognize self-defense

as a complete defense in prison disciplinary cases was a

reasonable exercise of correctional judgment. a-28.

The Court of Appeals affirmed, rejecting Rowe's

argument that an Indiana statute conveyed on him a liberty

interest in asserting self-defense. a-6 to -7. Then, for the

first time analyzing Rowe's claim under the rubric of

substantive due process, the Court of Appeals ruled that there

is no constitutional right for a person in Rowe's position to

assert self-defense. a-9 to -10. Finally, the Court of Appeals

ruled that even if there were a constitutional right to

self-defense, Indiana could lawfully decline to recognize such

a right in the correctional context in order to promote orderly

prison administration. a-11. Rowe petitioned for rehearing

with suggestion for hearing en banc. The Court of Appeals

denied the petition on May 3, 1994. a-19. Respondents also

petitioned for rehearing. Their petition was denied May 5,

1994, although the Court of Appeals amended its-opinion

based on Respondents’ petition. a-22.

REASONS FOR DENYING

THE WRIT OF CERTIORARI

Because Rowe actually was permitted to raise

self-defense in his prison disciplinary proceeding and his

claim of self-defense caused his sentence to be suspended,

this case does not present the question stated in the Petition

for Certiorari. Moreover, Rowe has waived any claim that

he has a substantive due process right to assert self-defense

because he did not raise that claim in the District Court.

Below, he only contended that an Indiana statute gave him

the right to raise self-defense.

The question in this case is not of sufficient importance

to justiify certiorari. The issue has not been the subject of

any other reported case and there is no conflict between the

decision of the Seventh Circuit and the decision of any

other Court of Appeals or State court. The Seventh

Circuit's decision is correct because the right to self-defense

is not sufficiently well-established, especially for prison

inmates, to rise to the level of a fundamental right

guaranteed by the Due Process Clause.

I. THIS CASE DOES NOT ACTUALLY PRESENT

THE QUESTION IN THE PETITION.

Because Rowe was afforded the opportunity to present

his defense of self-defetise in the prison disciplinary

proceeding, this case does not afford the Court an

opportunity to decide the "Question Presented" in the Petition

for Certiorari. Moreover, because Rowe's sentence was

suspended based on his claim of self-defense, and no term or

condition of his confinement was altered as a result, he has

no claim for relief at this stage of the litigation. See a-27

(District Court holds that no liberty interest was affected by

prison disciplinary case against Rowe).

Rowe's statement that the State "did not allow Rowe to

raise the defense of self-defense," Petition at 3, is false. He

was permitted to raise self-defense, not as a complete

defense, but as mitigation which in this case precluded any

punishment. The Conduct Adjustment Board that heard his

case accepted self-defense as a mitigating factor and

completely suspended Rowe's sentence. Id. He was not

punished for his infraction, but received only a suspended

sentence of one year in segregation. Id. On July 18, 1992,

when a year had passed from the date of his Conduct

Adjustment Board hearing, the threat that any part of his

sentence of segregation would be imposed was eliminated.

See Indiana Department of Correction Adult Disciplinary

Policy and Procedures at G.23.C(4).

II. ROWE WAIVED HIS SUBSTANTIVE DUE

PROCESS CLAIM BY NOT RAISING IT

IN THE DISTRICT COURT.

Rowe did not make a substantive due process claim in

the District Court although it is the centerpiece of his

Petition for Certiorari. In the trial court, Rowe only argued

that Ind. Code § 35-41-3-2, which codifies the defense of

self-defense in Indiana's criminal code, applied to his prison

disciplinary proceeding or created a liberty interest under the

Fourteenth Amendment. a-9.’ By failing to raise this

argument in the District Court, Rowe has waived it. City of

? The Court of Appeals rejected this argument. a-9. The District

Court did not even reach this argument because it found that Rowe was

deprived of no liberty interest because the suspended sentence he

received brought about no change in the length or condition of his

original sentence. a-27 (citing Gaston v. Taylor, 946 F.2d 340 (4th Cir.

1991) (en banc).

6

2S TS On Se

Springfield v. Kibbe, 480 U.S. 257, reh. denied, 481 U.S.

1033 (1987).

Moreover, because Rowe did not raise the substantive

due process point until his appeal, the record is inadequate

for certiorari. Because the substantive due process issue was

not raised until this matter reached the Court of Appeals, the

Respondents were not able to develop a full record in the trial

court relating to whether the Constitution recognizes a

substantive due process right to self-defense in prison

disciplinary proceedings.

| Ill. THIS CASE PRESENTS NO IMPORTANT

| QUESTION OF FEDERAL LAW.

The question presented in this case is not an "important

question of federal law," so certiorari is not appropriate under

Sup.Ct.R.10.1(c). Rowe offers no reason why the question

whether there is a "fundamental right" to assert self-defense

as an absolute defense in prison disciplinary proceedings has

significance outside this litigation. In fact, the question is of

little more than academic interest to Rowe himself.

There is no other reported litigation raising this issue in

any other jurisdiction. Neither Rowe in his Petition, the

Court of Appeals in its opinion, nor Respondents has found

any other reported case that analyzes whether self-defense is

a "fundamental right" for prisoners in prison disciplinary

| proceedings. In the heavily-litigated area of prisoners’ rights,

the lack of other litigation raising this issue shows that it is _

not an "important question of federal law which has not been,

but should be, settled by this Court." Sup.Ct.R.10.1(c).

The question Rowe raises in his Petition for Certiorari is

not even an "important question" to Rowe himself. As

discussed above, Rowe was allowed to assert self-defense

7

and, in his case, his imprecation of self-defense precluded

him from suffering any actual punishment. Because

self-defense mitigated his sentence, Rowe suffered no harm

as a result of the policy he challenges in this case.

Also, no other United States Court of Appeals or highest

State court has ruled in conflict with the Seventh Circuit on

this issue. The Seventh Circuit's decision is consistent with

the only other case the parties have found that deals with the

issue, White v. Arm, 788 F.2d 338 (6th Cir. 1986), cert.

denied, 480 U.S. 917 (1987). White found that there is no

constitutionally-protected right to self-defense. Similarly,

other courts have rejected the notion that familiar criminal

law defenses are enshrined by the due process clause. Glass

v. Blackburn, 791 F.2d 1165, 1171 (Sth Cir. 1986), cert.

denied, 481 U.S. 1042 (1987)(duress); State v. Cowan, 861

P.2d 884, 889 (Mont. 1993), cert. denied, 114 S.Ct.1371

(1994) (insanity).

Because there is no indication that the question Rowe

presents in his Petition for Certiorari is an "important

question," this Court should deny the petition.

IV. THE DECISION OF THE COURT OF APPEALS

IS CORRECT.

The Seventh Circuit correctly decided that there is no

fundamental constitutional right to self-defense for a prisoner

in a prison disciplinary proceeding. a-9 - a-10. In its present

posture, the question before the Court is whether such a right

is conveyed as an element of substantive due process. a-6.

To qualify as fundamental under substantive due process:

analysis, rights must be "implicit in the concept of ordered

liberty,’ such that ‘neither liberty nor justice would exist if

[they] were sacrificed.” Bowers v, Hardwick, 478 U.S. 186,

191-92, reh. denied, 478 U.S. 1039 (1986) (quoting Palko v.

Connecticut, 302 U.S. 319, 325, 326 (1937)).

g Although the common law or statutory right to

self-defense is clearly established in many States in some

form, the doctrine is not so universal as to render it

fundamental for purposes of substantive due process. The

doctrine is embodied in statutes in at least thirty-four States,

but its scope and prerequisites vary greatly from one

jurisdiction to another. See Sloan, Law of Self-Defense at

55-95 (1987) (quoting self-defense staiutes of 3

jurisdictions). The great variation in self-defense law from

one jurisdiction to another undermines the claim that it is

"fundamental."

Self-defense is not "engraved into our culture and

upbringing." Petition for Certiorari, n. 8. Although

established in Jewish, Ancient Greek, and English traditions,

self-defense is inimical to basic Christian principles.

Matthew 5:38-39 ("You have heard that it was said, ‘An eye

for a eye and a tooth for a tooth.’ But I say to you, Do not

resist one who is evil. But if anyone st‘ikes you on the right

cheek, turn to him the other also.") (Revised Standard).

Early Christian philosophers therefore ejected self-defense.

See Augustine, Letter 47, reprinted in I Select Library of

-Ni 292-294 (Schaff ed. 1907).

Self-defense is inconsistent with significant strands of

religious thought. Brock, Paci

889-919 (1968) (Quakers, Mennonites, Brethren); Hahn,

“Love in Action,” reprinted in Peace and Nonviolence 90-97

(Guinan ed. 1973) (Buddhism); Ballou, "Christian

> Petitioner's reference to the Universa Declaration of Human

Rights, Petition at 8, is misleading. The declarztion contains no right to

self-defense.

Non-Resistance," reprinted in Peace and Nonviolence 8 ("a

true Christian cannot .. . kill, maim or otherwise absolutely

injure any human being, in personal self-defense, or for the

sake of his family, or anything he holds dear."). See also

Hanigan, Martin Luther King, Jr. and the Foundations of

Nonviolence (1984); Gandhi, Collected Writings on

Non-violent Resistance (1951).

Rowe's reliance on the Hansel and Gretel story in his

Petition for Certiorari at 9 is especially inappropriate because

life inside a maximum security prison is no fairy tale.

Indiana's correctional officials properly prohibit self-defense

as a complete defense in prison discipline cases to deter all

fighting and to eliminate the need to adjudicate which party

was the aggressor in every case.

The Court of Appeals agreed that even if there were

some fundamental right to self-defense in other contexts, the

legitimate penological concerns stated by Indiana's

correctional officials would permit the existing policy in

prison discipline cases. a-11; a-25; a-28. Indiana's rule that

self-defense is not an absolute defense to culpability in a

prison disciplinary proceeding, but may be used as

mitigation, is designed to promote prison discipline and

minimize violence.

The Department of Correction has an Adult

Disciplinary Policy and Procedures which

govern disciplinary proceedings within the

Department of Correction. Those policies

and procedures do not specifically recognize

self-defense as a defense to a rule violation

simply because to do so, in my belief, would _

only encourage offenders to use force in the

name of self-defense and would provide a

recognized excuse for the use of force. Such

10

written recognition of self-defense, in my

opinion, would only add to the number of

assaults by inmates on other inmates.

S.A. 3 (Affidavit of Defendant Watsen). This Court should

defer to the judgment of the officials charged with

administering prisons embodied in this rule. Turner v,

Safley, 482 U.S. 78, 85 (1987); Block v. Rutherford, 468

U.S. 576, 584-585 (1984). Judge Ripple's view, in dissent,

that permitting self-defense would somehow protect the

“weak and vulnerable," a-17, is backward. Permitting

self-defense as a complete defense would allow more

brutalization of the "weak and vulnerable" by inmates who

later would seek to justify their behavior as "self-defense"

and give the disciplinary and judicial systems the task of

sorting out who did what to whom in every case.

Respondents’ position is consistent with the

philosophical underpinnings of the doctrine of self-defense.

In Lockean social contract theory, self-defense is available

only when the state is not present to provide protection.

Because the state exists for the protection of

its members, the social contract includes a

built-in limitation: each individual retains

his or her natural rights for exercise in

Situations where appeal to established

authority is impossible. Such a situation

arises where aggression is sudden and

immediate, so that state intervention cannot

prevent its effect, and when the effect of the

aggression threatened would be so severe

and lasting that no subsequent state response

could adequately substitute for prevention.

11

Fabricant, Homicide in Response to a Threat of Rape, 11

Golden Gate L. Rev. 945, 954 (1981) (emphasis supplied).

In prisons, security personnel are almost always present or

within shouting distance. The rule at issue in this case

encourages prisoners to call for help rather than to exercise

self-help, thus maintaining prison discipline and security.

CONCLUSION

For the reasons stated in this Opposition, this Court

should deny the Petition for Certiorari.

Respectfully submitted,

PAMELA CARTER

ATTORNEY GENERAL OF INDIANA

JON LARAMORE

Deputy Attorney General

(Counsel of Record)

Counsel for Respondents

OCTOBER 20, 1994.

OFFICE OF THE ATTORNEY GENERAL

Fifth Floor, IGC-South

402 W. Washington St.

Indianapolis, IN 46204

(317) 232-6315

[8725]

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