Davidson v. Cannon

PETITIONER:Davidson
RESPONDENT:Cannon
LOCATION:Pennsylvania Department of Public Welfare

DOCKET NO.: 84-6470
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 474 US 344 (1986)
ARGUED: Nov 06, 1985
DECIDED: Jan 21, 1986

ADVOCATES:
Charles Fried – as amicus curiae, in support of Respondents
James Douglas Crawford – on behalf of the Petitioner
Madeleine W. Mansier – on behalf of Respondents

Facts of the case

Question

Audio Transcription for Oral Argument – November 06, 1985 in Davidson v. Cannon

Warren E. Burger:

Mr. Crawford, I think you may proceed when you are ready.

James Douglas Crawford:

Mr. Chief Justice, and may it please the Court:

I filed a reply brief in support of the petition of certiorari for Robert Davidson because I anticipated two questions that this Court might address in the Daniels case.

I asked that the cases be set down together.

The Court saw fit to do so.

Those two questions were the question of damages which might happen in some non-prison context, damages common to the non-prison context, and the question of whether the immunity was clear.

What makes the Davidson case a good solution or a good vehicle for the Court to solve those questions is that Robert Davidson was injured when prison officials negligently failed to look into his suggestion that another prisoner was going to attack him.

The prisoner did, indeed, attack him and injured him seriously, plainly a prison negligent situation not otherwise common.

It is also clear that in New Jersey there is simply no liability whatever when… to either a public entity or an official for an injury caused to one prisoner by another.

That would also be true, one inmate of a psychiatric institution to another, that sort of situation.

Accordingly, although I think that the Daniels case and the argument which you have heard in it solves the problems that face me and that perhaps this argument was unnecessary, I do want to address those issues and some other related issues which make this case a clear case in which the rules which this Court announced, I thought with unquestioned clarity in Parratt versus Taylor and in Palmer versus Hudson, apply here.

Indeed, I am intrigued with the theory that somehow losing a hobby kit or stealing a couple of papers from a prisoner’s cell plainly implicates the Fourteenth Amendment.

There is a deprivation of property there, but when a prisoner’s face is repeatedly gouged with a fork so that the prisoner suffers damages which Judge Brotman thought could be compensated at $2,000 and which I am sure that is minimal compensation, that that is not a deprivation of liberty interest.

I am intrigued particularly by Justice Stevens’ question as to whether we are talking about substantive or procedural due process.

And, I believe we are talking procedural due process but in a peculiar sense.

I think that prisoners, because of their circumstance, perhaps have a substantive right to procedural due process that is meaningful.

And, I say that because you work from a situation in which the prisoner has a right, not just from South v. Maryland, but from English and American cases stretching back well before the Constitution and coming forth in cases like Youngberg versus Romeo, where you recognize that people in custody simply are dependent upon their custodians, and because a prisoner at least, probably someone in a sheriff’s care or in a psychiatric or institution for the retarded, can’t do the things the rest of us do to protect ourselves from attacks by other prisoners.

I assume… The first thing I do is I run.

Maybe before I run I went out and I bought insurance to protect me from various things that might threaten me.

If I felt it was wise to do so, I might buy a weapon.

I suppose I could hire a guard.

I could certainly fight back and nobody is going to say to me you are one of two prisoners who is going to be put in solitary confinement for fighting.

So, there are a lot of things that I do or you do or anyone in this courtroom does to protect against threats of attack from others.

They are not open to prisoners.

And, for that reason, it is clear that, just as the state must make some kind of a meaningful remedy available for lost hobby kits that come through the mail, that the state certainly must have some sort of a procedure that says when prison authorities are warned that one prisoner is going to attack another prisoner and they forget to do anything about it, the prisoner can look to relief from the court system.

Normally what you do, and I think the civilized… That is unfair to New Jersey.

What you would do in those states which do not have extreme sovereign immunity doctrines, states which haven’t done what New Jersey did, and Judge Gibbons, an opinion that is full of learned language and obscure ideas, says what is peculiar to the New Jersey sovereign immunity statute is that it is introduced with a clause that says you can’t give the state a duty to do everything.

Sovereign immunity isn’t here because we are going to absolve the state from liability.

In New Jersey peculiarly we actually absolve the state from duties.

And, it seems to me that if the Fourteenth Amendment did nothing else, it gave the state a duty to protect life, liberty, and property and says that a state cannot deprive anyone of those without due process of law.

James Douglas Crawford:

And, when New Jersey decided to take that duty away, it seems to me they did it in an unconstitutional statute.

The Solicitor General makes much of the fact that my client, who was filling out a form… and this Court has seen plenty of the forms that come up through the prison system… filling out the form of complaint when he wanted relief, didn’t say he wanted the statute held unconstitutional.

So, plainly he was satisfied with the statute.

He said, I have been injured and I want relief which I can’t get elsewhere, so please give me that relief and whatever other relief is appropriate to me.

I suppose appropriate relief might well have been to strike down the statute.

I did not think it was necessary when I argued this case in the Third Circuit and I am the first lawyer that my client got to see.

I thought that Parratt versus Taylor made it very clear that you could have that kind of a statute, but you couldn’t take away relief from the prisoner who brought a case to redress that deprivation.

If I have erred, I suppose the case should go back down for a determination as to whether the statute is unconstitutional.

That seems to me an inappropriate way to use the Court’s time now when the question framed repeatedly on whether negligence can give rise to a 1983 action is here and is here under exactly those circumstances which allow it to be decided once and for all.

The deprivation question which troubled Justice O’Connor at the beginning of the preceding argument, it seems to me, could come down either way if you were construing language.

I would assume if the state were building a highway across the back of my property and the engineer designed it properly and said I am going to have to take the back two acres… I don’t have two acres… but assume a large property to go with it… going to have to take the back two acres, the state would compensate me.

If they, on the other hand, had hired an engineer who said I can save you a lot of money, I will design you a cheaper highway, and he only took one acre off the back of my property, I am compensated for that.

Then the fill is put in and, of course, the first rain storm it flows over the additional acre, because he negligently has designed a highway that takes two acres of my property and pretended it was a one-acre piece of property that needed to be taken.

That would be a taking and I would go to court and I would get compensation because the property was negligently taken.

Sandra Day O’Connor:

There you could argue that the state actor did, in a general sense, intend the taking and meet a general intent requirement.

James Douglas Crawford:

I suppose, Justice O’Connor… I can’t say and I wouldn’t say that the prison authorities here intended that Robert Davidson have his face chopped up with at work.

But, I think that their duty toward Davidson says that if they aren’t careful of him in a prison situation, that they have deprived him of rights, because the only way somebody locked up with a bunch of prisoners, many of them violent, can have any liberty at all is if the prison authorities undertake what I think is their clear duty of protection and that is a common law duty that is in state law, it is in federal law, it antidotes Swift versus Tyson, it antidotes both the Fifth and Fourteenth Amendments.

And, for that reason, I would say here there is a deprivation.

This is why I, like Mr. Saltzburg, don’t see 1983 action showing up when police officers drive down the streets, or as I was asked in the course of the oral argument in this case–

Sandra Day O’Connor:

You too would limit recovery to the prison setting I would conclude.

James Douglas Crawford:

–I limit it to the prison setting because it seems to me we can find a clear duty here that is much more easily defined than you find in the general driving on the streets.

How the body politic deals with the question of whether private citizens hit by police cars or ambulances are going to be compensated.

It works in that whole political system we have.

The people who are walking the streets vote, they are also taxpayers, and they make decisions with their government as to what is going to go on about compensating ambulance accidents.

You don’t need a federal court action there.

I don’t think it would foreclose one, but you certainly don’t need one, and you can distinguish it.

Yes, Justice Stevens.

John Paul Stevens:

May I ask, when you say we have a clear duty here, what is the source of that duty?

Is it federal law or state law, the duty not to be negligent in the–

James Douglas Crawford:

I think it is a federal law duty, Justice Stevens.

James Douglas Crawford:

It seems to me–

John Paul Stevens:

–It is in the Due Process Clause?

James Douglas Crawford:

–I think the Due Process… That is why I conclude that there is some piece of substance involved here.

While I think procedure is all that you have to do for the prisoner–

John Paul Stevens:

So, I guess you would give me the same answer that was given in the previous case, that if a visitor was injured by an inmate by reason of negligent supervision by the guards, the visitor would have no cause of action.

Say he injured both the visitor and an inmate, but the inmate would.

James Douglas Crawford:

–I see no reason to find a cause of action for the visitor and the case that is before the Court and the question that should be answered is the question of the inmate.

Should the Court feel generous to the protection of the visitor, I can’t argue with it, but I don’t think the rationale which gives Robert Davidson his right needs to apply to a visitor.

John Paul Stevens:

Because it is his status as an inmate rather than the fact of immunity that really is the predicate for the federal claim.

James Douglas Crawford:

No, Justice Stevens.

I think… We found this in Hudson.

Even where there is intention, as there was in Hudson, or I think special duties to protect the rights of a prisoner, as there is in the two cases before the Court today, the availability of a due process remedy after the act is sufficient recompense, so the immunity does become crucial to this.

These are the random occurrences which really can’t be handled by a pre-deprivation remedy.

Normally you don’t take things without due process in advance.

But, all three of the cases, the two cases today and the–

John Paul Stevens:

Immunity is crucial but it is not sufficient because… I am not sure under the New Jersey statute, but you conceivably could have an immunity statute which would bar a claim by a visitor as well as an inmate and that wouldn’t be sufficient to give them a federal claim though, because you need both the–

James Douglas Crawford:

–I think that is correct, Justice Stevens.

Byron R. White:

–The basis for the claim is that the state has deprived the person of liberty.

James Douglas Crawford:

The state has deprived the person of liberty–

Byron R. White:

Through negligence.

James Douglas Crawford:

–Yes, through negligence.

Byron R. White:

It is still hooked to a deprivation of liberty.

James Douglas Crawford:

That is correct, Justice White.

Byron R. White:

And without any remedy for it.

James Douglas Crawford:

And without any remedy for it.

Byron R. White:

And, would you say that if there is remedy there never was a deprivation, a constitutional deprivation?

James Douglas Crawford:

There is a deprivation, but not a constitutional deprivation as I read the Fourteenth Amendment.

What is prohibited is deprivation without due process.

You can take the two acres off the back of my property.

You can take my life, as this Court has held, either under a sentence of death or under certain circumstances where accidental death is caused.

James Douglas Crawford:

You can do it, but there must be due process, and that is what is lacking here.

I think the Court has heard in the previous argument the basic framework of this argument and I won’t go on further.

I may address some questions at the end of the argument for my opponents.

Otherwise, I will not take further time.

Warren E. Burger:

General, you may proceed.

Madeleine W. Mansier:

Thank you, Mr. Chief Justice, and may it please the Court:

Petitioner here suffered physical injury as a result of a deliberate act by a third party.

He now makes a two-part argument here in order to assess liability against the state under Section 1983.

He argues first that because Respondents’ negligence was in some tort sense law way, causally related to that physical injury; that, therefore, the state has deprived the Petitioner of liberty.

The second part of his argument is that that deprivation was without due process simply because the New Jersey state legislature made a decision to immunize negligent conduct for inner-prisoner injury.

Respondents urge this Court to reject both parts of that argument.

While it is necessary for this Court to reject only one, either one of those parts, and still affirm the judgment in favor of the Respondents by the Third Circuit, we would urge this Court to send out a clear message that, first of all, negligence does not equal a deprivation within the meaning of the Due Process Clause, and, secondly, even when their is a deprivation because the conduct has been worse than negligent, that there is not a deprival of due process simply because of the existence of an immunity.

There is no such per se rule.

I would like to begin with the first of those two issues, namely, the question of whether negligence equals a deprivation.

Justice O’Connor has asked on a couple of occasions now about this very question; that is it seems to me that behind the question is does deprivation mean simply some kind of causal relationship or does it mean more than that?

Respondents would suggest that it means far more than that.

We would adopt the definition that was given by Justice Powell in his concurring opinion in Parratt versus Taylor; namely, that deprivation means some kind of an intentional act to deny something to somebody or a deliberate decision to not act to prevent a loss.

William H. Rehnquist:

Well, Mrs. Mansier, don’t you think the majority of the Court rejected that sort of definition of deprivation in the Parratt case?

Madeleine W. Mansier:

Justice Rehnquist, I do not think that the Court rejected it in the specific sense that it was a part of the holding of the case in Parratt versus Taylor.

Respondents are well aware that there is language in Parratt versus Taylor to the effect that the alleged loss, though negligently caused, amounted to a deprivation.

However, that language was not crucial to or a fundamental part of the holding in that case.

And, Respondents say that for this reason.

The Court in Parratt versus Taylor framed the issue as to whether negligence would support a claim for relief under Section 1983.

The answer was no in that case and rightly so, because what the Court saw there was what Taylor had conceded from the outside which was that there was a state remedy.

He had simply chosen not to go into state court.

There was a state remedy.

Nebraska took care of that and as a result of that, even if there had been a deprivation, even if all of the prerequisites for a due process claim had been made, there still would not have been a deprivation without due process and, therefore, no violation of the Fourteenth Amendment.

John Paul Stevens:

May I ask the same question I guess I asked earlier, but your submission is that negligence can never constitute a deprivation?

Madeleine W. Mansier:

That is–

John Paul Stevens:

Supposing the warden negligently executed the wrong defendant and killed him by mistake.

John Paul Stevens:

Would that not be a deprivation of life?

Madeleine W. Mansier:

–Justice Stevens, I do not envision any execution as a negligent act.

There may have been a mistake.

John Paul Stevens:

What is wrong with my hypothetical?

Couldn’t they make a mistake?

It is conceivable.

Madeleine W. Mansier:

There may be a mistake as, indeed, there was a mistake in Baker versus McCollan, and there this Court found there wasn’t even a right in the first instance.

John Paul Stevens:

That is right, but they didn’t say that… They didn’t rely on the reason of negligence not constituting a deprivation.

Madeleine W. Mansier:

That is correct, because they did even need to reach that point.

What they found instead was that there was no right–

John Paul Stevens:

Take that case.

Supposing a sheriff makes out a search warrant and negligently they type in the wrong name and search the wrong house.

Would there not be a deprivation of the right to be free of an unreasonable search just because it was negligent instead of deliberate?

What does that have to do with whether the constitutional right has been violated?

Madeleine W. Mansier:

–Because here we are dealing with the Due Process Clause and the Due Process Clause has the specific language of the word “deprive”.

And, the primary issue before this Court, at least initially, is what does deprive mean.

John Paul Stevens:

So, you are not contending that negligence can never give rise to a 1983 action.

You are just saying never give rise to a deprivation of liberty.

Madeleine W. Mansier:

That is–

Sandra Day O’Connor:

Well, I suppose your answer in part to the execution question is that there was an intent to execute someone.

It wasn’t an unintended consequence of the action.

Madeleine W. Mansier:

–That is correct, Justice O’Connor.

Sandra Day O’Connor:

So, it can be deprivation.

But, in the circumstance that we just heard about of a pillow on the stairs, it was never contemplated or intended that someone would be physically injured as a result of placement of a pillow on the stairs.

Madeleine W. Mansier:

That is correct.

And, it was never contemplated here in this case that Davidson would be injured.

And, in further response to your question, Justice Stevens, if this Court could go further and declare that even outside the Due Process Clause, even if there were a claim under the First Amendment, a claim under the Fourth Amendment, that nevertheless there could not be a remedy provided by 1983 even for negligent conduct, simply because Section 1983 is designed to deal with official abuse of power.

But, what we are saying in this case is that this Court need not go that far if it does not want to.

It can limit its analysis to due process claims which is the precise claim being made here and then one needs to focus on the language of the Fourteenth Amendment.

That language has the word “deprive” in it.

Madeleine W. Mansier:

And, what Respondents say is that negligence never amounts to a deprivation because it is not this intentional act, it is not deliberately doing something.

It is the very antithesis of the whole purpose of the Due Process Clause from the outset.

That was designed to deal with petty tyranny, to deal with oppression, to deal with situations in which the government would go through the streets and take people off the streets and put them into prison and take away their liberty in that sense.

And, even there the government has the right to do that providing it provides due process.

But, the Due Process Clause has always been meant to deal with intentional acts, with something far more than simply negligence.

And, both this Petitioner and the Petitioner in the other case argue that if negligence can ever be a deprivation within the Due Process Clause, it surely can here.

Petitioners have that argument backwards.

People who go into prison don’t gain rights.

They may not lose all of their rights as we well know, but they don’t gain new ones.

Instead, they retain, as this Court said in Hudson versus Palmer, those rights which are consistent and compatible with incarceration.

In Hudson, this Court found that the right to privacy within one’s cell was not compatible with incarceration.

Respondents would urge here that the right being asserted by the Petitioner is the right to safety.

Specifically, they are urging, although perhaps not articulating, the right to absolute safety.

Respondents say that the right to absolute safety in a prison setting is not compatible with incarceration.

Yes, we have a duty to protect.

Yes, we have a duty to exercise some reasonable care and it is only because we breach that duty that we were found to be negligent.

But, the breaching of the duty is simply a question as to whether we were negligent in the first instance.

It does not go to separating out prisoners from everybody else in the world with reference to what the Due Process Clause protects them against.

John Paul Stevens:

Yes, but may I ask this question?

You have separated prisoners out in your immunity statute as I read it.

The prisoner may not recover for this kind of negligence, but a visitor could.

A visitor or a guard could recover if the guard was negligent and an inmate, instead of injuring a fellow inmate, injured either the visitor or the guard.

So, you have put the prisoner in a lesser position than the others, is that not correct?

Madeleine W. Mansier:

It is true, Justice Stevens, that the immunity that is the focal point here does deal with injuries caused by one prisoner to another prisoner.

New Jersey law does also immunize situations in which injury is caused by an escaping or an escaped prisoner.

If a visitor comes into the prison and that person is injured by a prisoner, then, yes, it is true that that person would not come within this immunity and, therefore, would have the right to sue under New Jersey law.

And, that question of separating out will get to the issue that I would like to deal with in a moment, which is the question of the reasonableness of the immunity and the question of whether immunity automatically and necessarily means that there is no due process.

Harry A. Blackmun:

Have you answered Justice Stevens’ question?

You are giving him fewer rights than anyone else.

Madeleine W. Mansier:

We are giving the prisoner fewer rights with reference to injuries caused by other prisoners in the sense that for that plaintiff there is immunity.

Madeleine W. Mansier:

The answer is yes, Justice Blackmun.

William H. Rehnquist:

Sort of a penalogical fellow-servant doctrine.

[Laughter]

Madeleine W. Mansier:

That is certainly one way of articulating it.

I think the rationale behind it is set forth in the commentary that goes with that statute and I would like to reach that.

But, with reference to this question of whether duty goes simply to negligence or goes to something more, since the Petitioner is really saying that he has a right to safety, that is precisely the claim made by the prisoner in Smith versus Wade.

In that case, the Court found… This Court specifically said that if the prison guard had been simply negligent, that there would not be any cause of action there because of the need to protect prison guards in their day-to-day decisions in running a correctional institution.

In Smith versus Wade, as it turned out, the conduct of the prison guard was worse than merely negligent.

It was deliberately indifferent.

He knew or should have know what was going to happen.

And, in that instance, this Court recognized the cause of action and rightly so.

Smith versus Wade was analyzed under the Eighth Amendment.

This Court ought not to take the very same claim of a right to safety against injury by another prisoner, analyze it under a different constitutional portion as the Due Process Clause and apply some lesser standard as the Petitioner would have them do of mere negligence.

That would not be consistent.

It is the same claim, it is the same argument.

The same standard ought to be applied.

So, while Respondents say that negligence can never equal deprivation, Respondents say it surely cannot here.

The test ought to be at least deliberate indifference.

Turning our attention to–

Byron R. White:

Well, what about… You say negligence never then, is that it, can form the basis?

What about a negligence in knowing what the law is, what the governing law is?

Madeleine W. Mansier:

–We are focusing here on negligence not being a deprivation within the meaning of the Due Process Clause?

Byron R. White:

Yes.

Madeleine W. Mansier:

And, we are talking about a negligent taking of life, liberty, or property.

Byron R. White:

Right.

What if there is a standard of law… a standard of conduct imposed by law that says you may not do this or you may or you may not do certain things and some prison guard just doesn’t know what the law is and he goes ahead and does it intentionally.

Madeleine W. Mansier:

If a prison guard acts intentionally–

Byron R. White:

Yes.

Madeleine W. Mansier:

–and as a result of that a prisoner is injured if we are sticking with the kind of case that we have here, then that is an entirely different case and we would say that an intentional act does equal a deprivation.

Byron R. White:

All right.

Byron R. White:

How about gross negligence or recklessness?

Madeleine W. Mansier:

Justice O’Connor, we realize that courts have historically found difficulty in dealing with exactly where the lines are between different standards of conduct.

That is especially true between negligence and gross negligence, perhaps in part because of the fact that the word “negligence” appeals in both.

We would urge this Court to take the position that even gross negligence, assuming one can define that as being some kind of negligence but something worse than the negligence that occurred here, would still not equal a deprivation within the meaning of the Due Process Clause, primarily because we go back to the position that deprivation is some kind of an intentional act, and intentional and negligence are different qualitatively regardless of whether we are talking about simple negligence or gross negligence.

Byron R. White:

So, just simple negligence, negligently failing to give medical treatment is not… doesn’t give a cause of action?

Madeleine W. Mansier:

That is correct, it does not under Estelle.

Byron R. White:

And, we have held… Is that because the Eighth Amendment controls?

Madeleine W. Mansier:

That is an Eighth Amendment case and the determination was made–

Byron R. White:

Well, would you think that it could be any other kind of a case?

I am surprised that you just don’t argue that in the prison context the Eighth Amendment should really govern just like it did in Estelle.

Madeleine W. Mansier:

–Justice White, that is, indeed, what I would have called here the third argument.

Byron R. White:

All right.

Madeleine W. Mansier:

That is… But, I am perfectly willing to reach it now and to skip over for the moment again the argument of whether immunity can… automatically means that there is no due process.

Petitioners really believe here and have argued from the outset that there is no liberty interest in the first instance.

The cases that are relied on by the Petitioner and that were relied on, indeed, by the Third Circuit, which admittedly found there was a liberty interest, are completely wrong.

They are inapplicable.

They were rightly decided, but they have nothing to do with this case.

One is Ingraham versus Wright.

That stands for the proposition that the government can’t hold somebody and punish them.

We agree with that, but that is not what happened here.

The second is Youngberg versus Romeo.

There the Court found that an involuntarily committed person had a liberty interest in safety but that liberty interest was in being free from injury 63 times over a two-year period.

But, in both of those cases this Court said if the plaintiff had been a prisoner, then the question would have been whether it was cruel and unusual punishment because that was the issue that was presented and the Court rejected it because the plaintiffs were not prisoners.

Here, the plaintiff is a prisoner and Respondents would urge that the only right to safety they have is a right to be free from cruel and unusual punishment and if it doesn’t reach that level, there is no interest in safety that is recognized.

Finally, on the issue of the immunities, if this Court were to determine that immunities are always… automatically means that there is no due process, you will negate tort immunity, you will call them all into question.

You may even call into question the judicially created immunities.

You will deprive states of the right to fashion their own tort laws to the right expressly recognized in Martinez versus California, providing that that statute is rationale, is not arbitrary, and in this case this statute is, indeed, rational.

It is, in fact, a portion of the very same statute that was in Martinez.

And, in addition to that, the New Jersey courts have… the legislature has indicated that they recognized the practical problems inherent in supervising prisoners and in particular in preventing injuries caused by one prisoner upon another.

They realized the problems in that.

Madeleine W. Mansier:

So, the decision that they have made is that if you are merely negligent, then you will not be liable.

However, there is another provision in the same act that says if your act is willful misconduct, actual crime, actual fraud, actual malice, if it is any of those, no immunity applies.

And, basically what New Jersey legislature has done is that we recognize that negligence doesn’t equal a deprivation.

It is perfectly proper to pass this kind of a statute.

But, if the conduct gets so bad that it is willful misconduct, we will not protect those people, we will not provide them with any immunity.

So, in conclusion, we urge this Court to affirm the decision of the Third Circuit, either by finding that there was no liberty interest in the first place because the Eighth Amendment claim was rejected, or if there was a liberty interest, that the negligent conduct here did not amount to a deprivation within the meaning of the Due Process Clause.

And, finally, that the Petitioner is also wrong in saying that the existence of the immunity automatically means that there is no due process.

Thank you.

Warren E. Burger:

Mr. Solicitor General?

Charles Fried:

Thank you, Mr. Chief Justice, and may it please the Court:

If I may, before I enter the details of what we consider to be the defects in Petitioner’s claim, may I suggest a more distant perspective on this case?

A hundred years ago, Oliver Wendell Holmes began the common law by insisting on a distinction which he said was so basic that it is part between being stumbled over and being kicked.

In this case, Respondent can at most be said to have stumbled.

If anyone kicked Petitioner, it was his fellow prisoner, McMillian, against whom, of course, Davidson retains a cause of action.

The majestic purpose of the Due Process Clause, we suggest, is trivialized for it was intended to protect against oppression and there is no oppression here where a state officer has at most stumbled whether or not the state offers a complete remedy for the harm which is occasioned by that stumbling.

Now, turning to the details, Petitioner claims there is a denial of procedural due process and I think we should try to keep distinct whether the claim is a procedural or a substantive one.

Petitioner claimed, or at least so it seemed from the papers, claimed there is a denial of procedural due process because of the existence of the state immunity.

If that argument is correct, then every state limitation on liability, every gap in the complete garment of compensation gives rise to a due process violation, including such familiar limitations on liability as automobile guest statutes, no fault statutes.

More remarkably still Petitioner’s argument would put under a constitutional doubt limitations on liabilities, gaps in liabilities which have been established by this Court itself.

And, I think most strikingly of Chapel and Wallace in which this Court said that there is ground for grave hesitation before allowing a soldier to bring a cause of action against a military superior and denied the claim.

And, I think some of the reasoning in Chapel and Wallace, some of the balancing of interest there is very similar to the balancing of interest which occasioned the New Jersey legislature to find immunity here.

It is our suggestion that that process of establishing an immunity where there seems to be good reasons for doing so cannot of itself create a procedural due process claim.

Sandra Day O’Connor:

Mr. Fried, I suppose the Petitioners in these two cases would say to you, well, we are only concerned about the situation in a prison setting.

Charles Fried:

That point was emphasized, particularly in argument, although I must say the Eighth Amendment aspect was not emphasized as the case was litigated so far.

We would suggest that the status of Petitioners here as prisoners is constitutionally irrelevant.

They have treated as simply part of the factual setting which gives rise to a duty of care and a possible claim of negligence.

In this respect, they are like a pedestrian, also involuntarily in the path of a negligently driven automobile, also involuntarily, and the failure to heed poor driving conditions are part of the factual setting.

The failure to–

Thurgood Marshall:

What did the prisoner do that was voluntary?

Did he go to jail voluntarily?

Charles Fried:

–No, he did not.

Thurgood Marshall:

Did he stay there voluntarily?

Charles Fried:

No, he did not.

Thurgood Marshall:

Well, how do you get involuntarily?

Charles Fried:

He is not there–

Thurgood Marshall:

You compare him with the man in the street struck by an automobile.

I fail to see the comparison.

Charles Fried:

–The man in the street struck by the automobile also does not voluntarily choose to be in the path of a–

Thurgood Marshall:

But, he stood in the street.

Charles Fried:

–Yes, he did.

Thurgood Marshall:

And, he didn’t have to stand there.

Charles Fried:

He made no choice.

Thurgood Marshall:

He didn’t have to stand in that street.

Charles Fried:

No, he did not.

Thurgood Marshall:

So, isn’t that the difference?

The prisoner has to do whatever the guard tells him to do, whenever he tells him to do it, and however he tells him to do it, and that is the difference between that and an ordinary citizen getting stuck by an automobile.

Charles Fried:

With respect, Justice Marshall, that difference is important insofar as it creates a duty of care and the duty of care then is the predicate for the negligence action.

I don’t understand Petitioners to be claiming here that their Eighth Amendment rights were violated as they were in Youngberg and Romeo.

They don’t make that claim.

Turning to the deprivation point, we suggest no more than that the Court read the word “deprive” in the Fourteenth Amendment as conceptually parallel to its constitutional neighbor’s “deny” in the denial of equal protection and “take” in the taking of property.

Those terms have clearly been focused on intentional actions and all three of those terms, of course, are intended to guarantee against oppression by the state and that oppression–

Byron R. White:

Well, it took some rather recent cases to make all that so awfully clear.

Charles Fried:

–But, we hope that it is clear now and that–

Byron R. White:

Well, it may not have been all that clear for a long, long time.

Charles Fried:

–Yet as clear as it is now it is clear because oppression comes when there is some deliberate… some systematic invasion of right which is what we say is missing here.

Now, much is made of the decision of the Parratt case.

We would suggest that Parratt is best viewed as a case in which this Court has established–

Byron R. White:

Nevertheless, if it had been all that clear about the Due Process Clause, that language wouldn’t have appeared in Parratt.

Charles Fried:

–In Parratt what this Court did was establish those conditions which are sufficient to deprive a person of a due process claim.

But, I don’t think Parratt needs to be read as saying what is necessary in order to satisfy due process.

Charles Fried:

It is simply what is sufficient to satisfy due process.

And, I say that because I think of the context of many, many other decisions in this Court.

I think particularly of Paul v. Davis and Baker against McCollan, which suggests that the Due Process Clause cannot be allowed to turn into a font of residual tort liability which I think is what would happen were we to accept Petitioners’ invitation in these cases.

Byron R. White:

Not if the states have provided remedies, I suppose.

Charles Fried:

Well, I say of residual tort liability to the extent that the state does not provide a remedy.

And, the state may fail to provide a remedy–

Byron R. White:

Yes, they may.

Charles Fried:

–under circumstances very similar to those in which this Court has said it is appropriate for the federal government to fail to provide a remedy.

And, I think, again, the Chapel case is a very good parallel because there there is a similar balancing of the state’s needs and the inconvenience of granting a remedy and the Court came out with the conclusion that one ought to hesitate before applying such a remedy.

Here, it is the legislature which engaged in that balancing and we suggest that that was not an unreasonable process of balancing.

It was a reasonable one and, of course, New Jersey leaves a claim for remedy against the prisoner who himself inflicted the injury.

You may say that is a worthless claim.

Alas, many persons injured are injured by insolvent defendants.

Byron R. White:

What happens to the state’s freedom when the tort is intentional?

Charles Fried:

If the tort is intentional, Your Honor, and I think that is an important point for us to seek to clear up, if the tort is intentional, you are very likely to have an Eighth Amendment or the shocks-the-conscience kind of substantive deprivation.

You may very well have a Fourth Amendment violation as there was lurking in the wings in Hudson against Palmer.

Byron R. White:

Which would deprive the state of its immunity.

Charles Fried:

It would, indeed.

And, I think–

Byron R. White:

Despite the legislature’s judgment.

Charles Fried:

–Oh, I… The legislature cannot deprive a citizen of his rights.

New Jersey legislature cannot deprive a citizen of his rights under the Eighth Amendment.

Byron R. White:

So, your argument really hinges on the construction of the word “deprive”.

Charles Fried:

I think that is a very important part of it, yes, Your Honor.

Thank you so much.

Warren E. Burger:

Do you have anything further, Mr. Crawford?

James Douglas Crawford:

Four very brief points which I would like to make.

First, the Solicitor General’s parade of horrors, the awful things that are going to happen if this case is decided in favor of Mr. Davidson or if the case before is decided in favor of Mr. Daniels, that is so only if you give us a great deal more than we ask for.

We were careful in our requests and I trust this Court to be even more careful in its opinion.

Secondly, a prisoner does not have a right to safety.

James Douglas Crawford:

A prisoner has a right to care.

A prisoner doesn’t have a right not to be lynched by a lynch mob, he has a right to be protected from a lynch mob to the best of a sheriff’s ability.

He doesn’t have a right not to be struck by a fellow prisoner, he has a right to be protected.

Warren E. Burger:

Are you making that a distinction between the intentional and the negligent act?

James Douglas Crawford:

No.

I think a negligent act can still give cause… can be a deprivation but the mere failure of even a careful jailer to protect his prisoner plainly gives you no relief and Mrs. Mansier’s suggestion that you have a right to safety is simply untrue.

You have a right to care.

Third, the distinction between the Eighth Amendment in Smith and Wade and the Fourteenth Amendment here is that in Smith and Wade had there been any amount of state process it wouldn’t have helped.

The question is do you have a right to some kind of process when you have a negligent deprivation.

We suggest finally that if immunity is read as the Solicitor General and Mrs. Mansier would have it read, that the great promise of Parratt, criticized by many as taking away the right to sue directly without turning to state rights, that the promise was that the states would get back to doing the states’ business, the federal courts would do their business, that promise is taken away if the states can do their business by saying we will pass an immunity statute and then nobody can help the prisoner.

I don’t think this Court meant it and I trust it will not now.

Warren E. Burger:

Thank you, counsel.

The case is submitted.

The honorable Court is now adjourned until Tuesday next at 10 o’clock.