Hudson v. Palmer

PETITIONER:Hudson
RESPONDENT:Palmer
LOCATION:Bland Correctional Center

DOCKET NO.: 82-1630
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Fourth Circuit

CITATION: 468 US 517 (1984)
ARGUED: Dec 07, 1983
DECIDED: Jul 03, 1984

ADVOCATES:
Deborah C. Wyatt – Argued the cause for Palmer
William G. Broaddus – Argued the cause for Hudson

Facts of the case

Russell Palmer, a prisoner in a Virginia prison, brought suit against Ted Hudson, an officer at the institution. Hudson had conducted a “shakedown” search of Palmer’s locker and cell for contraband. Hudson and another officer also charged Palmer with destroying state property after they discovered a ripped pillowcase near Palmer’s cell bunk. Palmer was then ordered to reimburse the State.

Question

Did the search of Palmer’s locker and cell violate the Fourth Amendment? Did prison officials deprive Hudson of his property in violation of the Fourteenth Amendment?

Warren E. Burger:

We’ll hear arguments next in Hudson against Palmer and the consolidated case.

Mr. Broaddus, you may proceed when you are ready.

William G. Broaddus:

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

The two petitions in this case bring before this Court two important constitutional issues pertaining to prison administration.

The first issue, that presented by the Petitioner, is whether a prison inmate has some reasonable and legitimate expectation of privacy while in prison so that he is entitled to the protection of the Fourth Amendment and Fourteenth Amendments against allegedly unreasonable searches.

The second issue, that presented by the Cross Petitioner, is whether a prison inmate whose property has been destroyed by the random unauthorized but unanticipated act of a guard has in law been deprived of property without due process when the state provides adequate post-deprivation remedies which are adequate to make the inmate whole.

These issues arose out of an incident which occurred at Bland Correctional Institution in September, 1981.

Bland is a state run penal facility which houses 450 felons.

According to the inmate’s complaint the prison guard conducted a shakedown, that is, a search of his locker but the shakedown was not routine and was conducted for purposes of harassment.

He further alleged that the guard destroyed some of his property.

Although the guard denied these allegations the District Court accepted them as true for purposes of ruling upon the guard’s motion for summary judgment.

The trial court concluded that the allegations of deprivation of property did not constitute a taking without due process because of this Court’s reasoning in the case of Parratt v. Taylor.

The trial court also concluded that the allegations of harassment did not rise to the level of a constitutional violation.

The Court of Appeals affirmed both of those rulings.

The Court of Appeals found that the inmate had some minimal right of privacy entitled to protection under the Fourteenth Amendment, and the Court of Appeals ruled that a guard could not search unless there was an established program or policy for random searches or in the alternative that the guard had some reasonable basis for believing that the prisoner possessed contraband.

The Petitioner submits the Court of Appeals erred with respect to this conclusion, and I would like first to address this issue.

It is clear from this Court’s prior opinions that an iron curtain does not exist between the Constitution and our nation’s prison.

It is equally clear, however, that prisoners suffer a substantial reduction and even loss in many rights and privileges.

In each case before the Court determines that an inmate possesses a right it carefully weighs that claim in light of the acute need of prison administration for prison security because that is the paramount need which prison administration is charged with.

Secondarily, it will weigh the claim in light of the effect upon the prison inmate.

With respect to the claim that a prison inmate possesses a right of privacy this Court is well aware from its many cases that prisons are dangerous places.

They are used to house dangerous men.

Inmates may seek to assault, to brutalize other inmates.

They may seek to assault guards.

They may seek to escape.

The introduction of drugs and weapons into this situation can only exacerbate an already dangerous place and situation.

John Paul Stevens:

General Broaddus, can I ask you a question about the scope of your submission?

William G. Broaddus:

Yes, sir.

John Paul Stevens:

As I understood your opening statement you were suggesting that the Fourth Amendment has no application to searches in the prison.

You also say that there is no protection for the prisoner against seizures in searches.

John Paul Stevens:

I notice the complaint alleges that the officer shook down my locker and destroyed a lot of my property, that is, legal materials, letters and other personal property.

It is not so much the search as the destruction of property.

Is there a protection against unreasonable seizures… That is what I am asking… as opposed to searches.

William G. Broaddus:

Justice Stevens, with respect to the destruction of property aspect, that, of course, will be controlled by Parrat v. Taylor.

With respect to the seizure of property we would submit that because there is no legitimate expectation or right of privacy that the Fourth Amendment does not apply and that, therefore, a seizure would not be controlled by the Fourth Amendment but by some other aspect, if at all, such as the taking of property without due process.

William H. Rehnquist:

Mr. Broaddus, I suppose that if I am a policeman and you are a suspect I may have a probable cause that would justify my searching for and seizing a gold ring in your possession that is maybe worth $20,000, but the fact I may seize it in the Fourth Amendment sense does not justify me in keeping it.

William G. Broaddus:

That is correct.

William H. Rehnquist:

That is what you meant by the Parrat rather than Fourth Amendment being applicable to the property destruction?

William G. Broaddus:

Yes, sir.

Of course, in Virginia there would be many other ways in which the inmate might recover that particular property, through the inmate grievance procedure or through state actions.

So he is certainly not without remedies to recover in that situation.

In order to minimize the problems which are brought about by the introduction of drugs and weapons into prisons official surveillance is and as this Court has noted traditionally always has been the order of the day in prisons.

If one follows the analysis which this Court has established for Fourth Amendment cases which emanated out of Katz and applied more recently in United States versus Knox and before that in Smith v. Maryland, one can only conclude that a prisoner does not have a legitimate expectation of privacy in prison.

First, does the prisoner himself actually expect privacy?

In this particular situation we know from the prisoner’s affidavit that he and I quote,

“realizes routine shakedowns are necessary to properly run a prison. “

So he himself had no actual expectation of privacy, but even if he did certainly society is not prepared to legitimize such an expectation because society has recognized the paramount needs of prison administrators to search, to seek out weapons, to seek out drugs and contraband.

Both society and inmates want prisons to be a safe place, but they can only be safe if weapons and drugs and contraband are kept out.

So we would contend that because the prisoner does not expect privacy and because society is not prepared and has not in any way legitimized an expectation that he has no basis for claiming privacy entitled to Fourth Amendment protection.

Byron R. White:

What if in a shakedown which you say is perfectly permissible, a random shakedown, suppose it is and the officer enters his cell and is searching around and he just picks up a radio and carries it out.

He doesn’t destroy it, he just… You say the Fourth Amendment protection of effects just does not apply in a prison?

William G. Broaddus:

We would take the position, Justice White, that it does not apply.

Of course, that is not the case here.

That was simply an allegation of destruction of property without due process–

Byron R. White:

I know, but there was a seizure of it.

There is no question that there was a seizure, and I guess as the case comes to us we assume that it was destroyed.

William G. Broaddus:

–That is the allegation, yes, sir, which was–

Byron R. White:

At least it was seized.

You say that the prison authorities are completely free from any Fourth Amendment restraints from seizing a prisoner’s effects even if they are not contraband or even if their possession is wholly consistent with prison rules.

William G. Broaddus:

–Under the Fourth Amendment–

Byron R. White:

Is that right?

William G. Broaddus:

–Under the Fourth Amendment, yes, sir, we would.

I think that the Fourth Amendment right of freedom from seizures must be something different and separate and apart from the taking of property without due process.

Byron R. White:

But it certainly is a separate question from the search.

William G. Broaddus:

Yes, sir.

In, for example, Delaware v. Prouse which could be analyzed as a seizure case the Court was concerned with the intrusion upon the driver of a motor vehicle, his freedom from anxiety, the limitation upon his movement and what not.

Those concerns simply are not present in prisons.

Byron R. White:

That may be.

That is the argument going to the search, the shakedown.

William G. Broaddus:

Yes, sir.

John Paul Stevens:

But even on the search supposing you had a prison system whereby they censored all the incoming mail so it was all read before the prisoner was permitted to have it and he gets his mail.

Could a guard go in and say,

“I think I’ll read your mail? “

William G. Broaddus:

There would be no Fourth Amendment prohibition in that situation.

John Paul Stevens:

There would be no prohibition at all then would there?

William G. Broaddus:

Well, if that were to constitute abuse then under the Virginia regulations which prohibit guards from abusing inmates the inmate would have redress under the inmate grievance procedure which has been approved by the Attorney General of the United States.

So he would have redress there, but he would not have it under the Fourth Amendment of the Constitution.

Sandra Day O’Connor:

Just what remedies are available under state law in Virginia for redressing the property deprivations, just the grievance procedure?

William G. Broaddus:

Justice O’Connor, it would be far more than that.

The grievance procedure would be but the first which would be available.

Also in state courts an inmate may sue in detinue or he may sue in conversion and recover damages for destruction of property or recover the property itself in the state court.

Sandra Day O’Connor:

If the Court were to agree with your view is there any danger that a state might alter its grievance procedure–

William G. Broaddus:

I would certainly–

Sandra Day O’Connor:

–So that some of the same protections would not be available?

William G. Broaddus:

–I would certainly think not, Justice O’Connor.

If anything we would insure that that grievance procedure operates the way it is intended to operate because it benefits not only Virginia but also federal courts and–

William J. Brennan, Jr.:

What is the remedy if he prevails in a grievance procedure?

William G. Broaddus:

–Under the grievance procedure he would be entitled either to recover the property and have it returned to him assuming it is still in existence or to be made whole through payment of the value of the property.

If the radio could be valued he would be made whole by payment of the value of the radio.

William J. Brennan, Jr.:

Payments out of state funds?

William G. Broaddus:

Yes, sir.

Funds are made available to the various institutions, and that is the source of the payment.

William J. Brennan, Jr.:

Who is it that makes the final judgment in the grievance procedure?

William G. Broaddus:

That ultimately goes up… It is a hierarchy level, if you will, sir, and depending upon the nature of the claim it may be the superintendent of the particular facility or it may be the regional superintendent who has control of many various facilities or it might be the deputy director of the overall Department of Corrections.

If there is no right of privacy under the Fourth Amendment then surely there must be no right of privacy in a prison inmate–

William J. Brennan, Jr.:

Forgive my interrupting you again.

I gather there is no judicial review?

William G. Broaddus:

–Under the grievance procedure?

William J. Brennan, Jr.:

Yes.

William G. Broaddus:

That is correct, sir.

There is none.

We submit that there is no right of privacy which a prison inmate possesses under the Fourteenth Amendment.

To suggest that an inmate has an intimate right of privacy in his locker comparable to a woman’s fundamental privacy to an abortion or a couple’s right of privacy to practice birth control simply is novel at best and to find such in a prison setting is simply untenable.

The Court of Appeals’ approach seemed to be calculated to give a little bit to the prison administrator and something to the prison inmate as well.

We suggest that that approach not only splits the baby but is simply unworkable.

Under the Court of Appeals’ approach the prison inmate would not have any greater enhanced freedom from searches.

He would still be subject to random searches, but the Court of Appeals’ approach would certainly limit the capability of the guard to make a search in a meaningful manner such that it would deter the introduction to prisons of weapons and drugs and other contraband.

Now the unreasonableness of the Court of Appeals’ approach is demonstrated we believe by a 1976 University of Virginia Law Review article by Gianelli and Galligan which was cited with approval by the court below.

That article suggested that a plan should be promulgated on constitutional grounds before prison guards may search.

It would require limitations upon the frequency and the intensity of the search.

It would suggest that if a guard was searching for a knife that he would be able to search only in those places where a knife might be found, and once the knife was found the search would have to cease.

We submit that such an approach is unreasonable and unworkable.

It simply tranforms the Fourth Amendment into a font of tort law without any privacy interest being present to be implicated.

Such an approach would simply increase federal litigation without substantially advancing the rights of prison inmates.

As I have indicated we do not suggest that the prisoner is without any protection whatsoever.

We do contend, however, that he may not wrap himself in the Fourth Amendment and use the Fourth Amendment to erect a wall between his activities and necessary security activities undertaken to a properly run prison.

We urge this Court to hold that the Fourth Amendment is not applicable in a prison.

If the Court rejects this position then we would further urge that it should reject the requirement of the Court of Appeals that random searches can be conducted only pursuant to an established program or policy for such.

We would urge this Court to adopt an approach which would say that all prison searches for security purposes undertaken in a reasonable manner are per se constitutional under the reasonableness clause of th Fourth Amendment.

That approach would be comparable to what this Court has utilized in the 1972 case of United States v. Biswolf which is not cited in our brief but one in which the Court upheld warrantless administrative searches in the gun industry even though probable cause and reasonable suspicion were not present and there was no plan for such searches.

William G. Broaddus:

Finally on this point we would also urge the Court to clarify that the normal rules of proof and going forward in civil cases should control a 1983 claim such as this and not the burden shifting approach which the Court of Appeals seemed to adopt in what be more appropriate in criminal suppression motions in criminal cases.

I would like to turn now to a second issue, that of the Parrat v. Taylor.

The Petitioner submits that the line of cases beginning with Paul v. Davis and going through Zimmerman Brush do not depend upon the state of mind of the state actor or the state public official charged with the wrongful conduct.

Indeed Paul v. Davis, Ingraham v. Wright, and McCollan v. Baker, the action was at least arguably intentionally undertaken.

The analysis we submit must depend instead upon whether the state was logically able to anticipate the wrongful act.

If the state was not able to anticipate the wrongful act then it was not in a position to provide in a meaningful manner a predeprivation hearing.

In that situation if it does go forward and provide in a meaningful manner a post-deprivation remedy which is capable of making the victim of the tort whole under Parrat v. Taylor, the person has not been deprived of procedural due process and has not lost property without due process of law.

In this situation we have only an allegation of random conduct which was not sanctioned or condoned by the state.

It was not pursuant to an official scheme or plan.

Accordingly the state action is not complete, and because the state action was not complete and the state has provided meaningful remedies there has not been a taking of property without due process of law.

In the reply brief the Cross Petitioner suggests that the Petitioner seeks to constitutionalize the deprivation of property without our argument.

If the state condoned the action here then perhaps it would fall under Zimmerman Brush, but that is not the case.

As I have indicated we have only the random isolated single allegation of wrongful conduct depriving someone of property, and due process has been provided.

So the deprivation was not without due process of law.

In conclusion, we would ask this Court to reverse the judgment of the Court of Appeals so that the matter may be sent back to the District Court and have that decision upheld dismissing the complaint.

Warren E. Burger:

What is the grievance procedure that was referred to, the procedure on which a prisoner can call for some kind of remedy?

William G. Broaddus:

Mr. Chief Justice, at the time of this particular incident we had a grievance procedure in place which was similar to what is presently in place.

It is not identical to the one that is presently in place.

The one that is presently in place now has been approved by the Attorney General of the United States under the Kripp Act, 42 U.S.C. 1997 I believe, and provides to the inmate the opportunity to file complaints with respect to the manner in which the prison is run and to seek redress of any grievance that he might have through that procedure and provided an opportunity for a meaningful hearing and depending upon the nature of the claim he may indeed have an opportunity to be made whole.

Warren E. Burger:

Very well.

We will resume here at 1 o’clock.

Ms. Wyatt, I think you may proceed whenever you are ready.

Deborah C. Wyatt:

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

This case is here on summary judgment from a suit against a guard himself who conducted what has been described as a ransacking search of my client’s locker and destruction of his property for harassment purposes.

It presents two questions.

First, whether there is now to be drawn around prison walls an iron curtain for purposes of the Fourth Amendment.

Warren E. Burger:

What would you say if in searching the locker or the cell of the prisoner they found a pistol or narcotics in an examination and seizure of these things without a warrant?

What would you say about that?

Deborah C. Wyatt:

I do not believe that under the analysis of search and seizures and prisons that a warrant is required, but I think we still might focus on the justification.

If somebody went in to search to harass I think it would still be a harassing search and seizure–

Warren E. Burger:

Would it be admissible against him in evidence?

Deborah C. Wyatt:

–The pistol?

I think if it violated the Fourth Amendment as the law stands now it would not be admissible against him.

Warren E. Burger:

Would not be admissible?

Is that your answer?

Deborah C. Wyatt:

Yes, Your Honor.

It could be confiscated.

Obviously it could be, but–

Warren E. Burger:

How about heroin, 14 packages of heroin in small packages for delivery?

Deborah C. Wyatt:

–I think all of that would be analyzed the same.

If the search is a legitimate search, and that is quite broad in a prison context.

You can search randomly if that is your pattern in the prison.

You can search an individual if you have a particular suspicion, and under either of those circumstances if you find the heroin, if you find the gun they are, of course, admissible because that is a reasonable search and seizure under prison circumstances.

But if you search to harass for no other purpose but to harass then you have violated the Fourth Amendment, and therefore the suppression issues would Apply.

William H. Rehnquist:

What do you take the search to harass to mean?

Deborah C. Wyatt:

A search for no legitimate purpose at all.

William H. Rehnquist:

Not looking for anything in effect?

Deborah C. Wyatt:

That is correct.

Not expecting to find, not looking for contraband, not even doing this as a deterrent.

I think prisons would have the right to have a search policy as a deterrent, random searches, and I believe the Fourth Circuit recognized that and said that you could have a system of random cell searches but there must be a system pursuant to which the individual is being searched.

If you did it–

William H. Rehnquist:

Now there certainly is a middle ground between a system for searching, a prescribed set of rules, and the harassing search that you say is a search simply to no purpose whatever.

I take then in that case a guard would simply figure he had nothing else to do and would just want to wander through people’s cells.

Deborah C. Wyatt:

–I believe if there is no legitimate purpose it would be analyzed as unreasonable, and I think in a prison situation we have obviously a very broad standard of reasonableness.

William H. Rehnquist:

Are harassing and no legitimate purpose equivalent in the way you are using the terms?

Deborah C. Wyatt:

Yes, Your Honor.

It would be the same.

Harrassing as I use it means not for a legitimate purpose.

If you have a suspicion that someone has contraband even if you are lethally searching him for that contraband that is not for a harassment purpose.

The way I am using it is an abusive purpose.

Deborah C. Wyatt:

You are picking on someone in your custody.

You are not doing it for any legitimate prison security or administrative purpose.

That is what we have on summary judgment in this case.

William H. Rehnquist:

So that is apart from any requirement that there be rules or anything else?

I take it your view is the Fourth Circuit could be affirmed without laying down any requirement that there be rules for Fourth Amendment searches in prisons.

Deborah C. Wyatt:

Absolutely.

In fact the question presented is simply whether the Fourth Amendment applies within prison, and that is what the Fourth Circuit held.

The Fourth Circuit did proceed to address such issues as burden of proof and, of course, Petitioner has argued that that has been shifted and shifted incorrectly.

I read the Fourth Circuit’s opinion differently, and I read it to be that a prisoner must allege an unreasonable search and seizure which is going to be a very small range of searches or seizures in a prison setting that will be unreasonable.

Once he has alleged that then the state can justify it if they do honestly justify it by saying that we have a pattern of random searches or I had a particular suspicion about this individual.

But to pick on the person, to do it abusively for only the purpose of harassment would be I think a classic case of an unreasonable search and seizure and perhaps one of the only cases of an unreasonable search and seizure within a prison setting.

I believe that is why Petitioner is retreated to a bright line request for this Court.

I certainly suspect that Petitioner is not in a position to request a bright line because Petitioner knew that what Petitioner was doing was wrong, but even if this Court felt that a bright line was needed I can suggest another line that I think is equally bright in a prison setting which is that it is unconstitutional to search and seize for the purpose of harassment.

I think that Petitioner’s position on the Fourth Amendment is unwarranted.

It is unsound, and I think that for that reason the Court should decline the invitation to sweep away this constitutional right any more broadly than necessary.

Again, the only question that has been framed for this Court is whether the Fourth Amendment applies in prisons, and indeed it should even though that may only provide limited protection to a prisoner.

With regard to the second question in this case, that is, the due process issue and the question of whether a due process violation, whether an intentional abusive deprivation can ever violate the due process clause when it violates a state’s own laws which is to say when a state–

Warren E. Burger:

I am not sure, Ms. Wyatt, I observe that in your cross petition you stated the question only in terms of the due process violation, not a Fourth Amendment.

Deborah C. Wyatt:

–That is correct, Your Honor, in my cross petition.

The Fourth Amendment issue was raised in the original petition by the Attorney General’s Office, and I am addressing now the issue I raised which is the due process, whether an intentional, abusive deprivation is totally unprotected by the due process clause.

I think Petitioner who alleged that it does not has totally missed a major distinction in this case which is a distinction between suits against higher supervisory officials or otherwise against general policies or procedures and challenges directly to individuals who themselves have abused.

In the former case understandably the analysis is going to turn on whether a wrongful deprivation was pursuant to that policy or was instead a random act not authorized by the procedure, a fluke, or even an abuse under a procedure where the risk of abuse is low as in Ingraham.

But that is not this case, and that analysis does not apply to this case.

This case is a challenge directly to the individual who abused, and in that sense this case is governed by Screws v. United States and Monroe v. Pape.

Both of those cases involved challenges directly to the officials who abused, not to supervisory officials.

In both of those cases the Court said that it is no defense that the act is unauthorized.

It is no defense that it is unauthorized even if that means that a state then provides remedies and that, therefore, one might be able to receive compensation in state courts.

This was rejected in Screws v. United States where the Court cleanly held under a challenge to the individual official that that intentional wrongful deprivation violated the due process clause immediately and state court remedies are completely and totally irrelevant.

John Paul Stevens:

Is there not a difference between the facts in Screws and the facts here, though?

Deborah C. Wyatt:

There is a difference.

Deborah C. Wyatt:

That was a criminal prosecution among–

John Paul Stevens:

A different kind of deprivation, too, was it not?

Deborah C. Wyatt:

–That was a life deprivation.

John Paul Stevens:

It was all completed before there was any possibility of a hearing.

Deborah C. Wyatt:

I think there could always be a wrongful death action, for example, in state court.

John Paul Stevens:

Well, would that make the person who suffered the deprivation of life whole?

You cannot restore his life can you?

Deborah C. Wyatt:

I think our principles of tort law except the fiction that, for example, a suit for wrongful death does make that deprivation whole, but I certainly acknowledge that that is life and that when we are looking at a procedure whether we are talking about life, liberty or property may enter a Matthews v. Eldridge analysis because that is the weight of the particular interest at stake.

But this Court has never severed property off from the other rights, and the due process clause, of course, mentions them in the same breath.

What Screws held was that it did not matter whether there were remedies after the fact, that the deprivation immediately at once violated the due process clause.

In Monroe v. Pape, of course, we are talking about the Fourth Amendment although the Court does not focus very often and in fact I think gives only a paragraph to which particular constitutional violation was at issue.

Another factor that both those cases made very clear is the fact that abuse of power is really at the heart of the Fourteenth Amendment.

Warren E. Burger:

I am a little confused, Ms. Wyatt.

You probably can clarify it very quickly.

I can understand the Attorney General’s Office in Virginia appearing in the case because it is one of their guards, one of their attendants that is involved, but is the state as such a party to the litigation?

Deborah C. Wyatt:

Absolutely not, Your Honor.

Warren E. Burger:

What is the source of authority for the court, any court, to lay down any regulations about random searches or any other kind of searches in a private law suit between a prisoner and a guard?

Deborah C. Wyatt:

Your Honor, I think that that points out a very important distinction in this case.

This case is not against a prison warden as in Parrat.

It is against the guard himself.

As in Monroe v. Pape there was an action against the officials themselves, but the Court did not find it difficult in that case to say the Fourth Amendment had been violated.

Warren E. Burger:

Can the Fourth Amendment be violated by private parties?

Deborah C. Wyatt:

This is not a private party, Your Honor, and that is one thing that Screws and Monroe both made clear.

He acted without authority, but he was–

Warren E. Burger:

I was taking you up on your statement that this was private.

Deborah C. Wyatt:

–I did not mean to–

Warren E. Burger:

A private suit.

Deborah C. Wyatt:

–I never meant to indicate it is a private party, Your Honor.

He sued the guard.

He sued the official who abused, but not the people who should have controlled the guard, not higher supervisory officials.

Deborah C. Wyatt:

He sued the guard, however, who quite clearly under Screws and Monroe was acting under pretense of law and would be a proper defendant under 1983 from that standpoint.

To the extent that he violated either the Fourth Amendment or the due process clause I think both are proper for adjudication.

William H. Rehnquist:

Your claim has to be that the state acting through this guard deprived your client of his property without due process of law.

It is not a… The Constitution does not say no prison guard shall deprive a person of property.

It says no state.

Deborah C. Wyatt:

Correct, Your Honor.

That is exactly why I say that this case is mostly governed by Screws and Monroe because that argument was presented in both of those cases, and in both of those cases as in United States v. Classic before the courted stated that the misuse of state power, the intentional misuse of state power can be attributable to the state itself in the sense of the–

William H. Rehnquist:

I think the law on that is quite clear, but I think the Parrat case says the final judgment on the state’s deprivation of due process is not to be pronounced solely on the basis of the action of a guard or a warden.

It is what opportunity the state offers to alleviate the claimed deprivation.

Deborah C. Wyatt:

–Your Honor, if this were a Parrat case I think the result would be the same.

If this were a case suing the prison warden for having allowed this prison guard to do this then we would look at how frequently did the guard do this, did they know that the guard was going to do this, or was this a random, unauthorized, unpredictable act by the guard under otherwise normal procedures.

But that is not this case.

This case is a suit against the fellow who did it.

This is a suit against the abusive guard himself.

The only cases that are that are very notable which present such a challenge are Screws and Monroe, and the analysis is not, therefore, the risk of error.

It is not, therefore, whether this was random, an unauthorized and uncontrollable by the state.

Once you are suing the guard himself who abused then you turn to Screws and Monroe when you say does it matter that it is unauthorized, if it is intentional–

William H. Rehnquist:

Do you think Parrat would have come out different if the two assistant wardens or guards in the mail room had been sued rather than the warden?

Deborah C. Wyatt:

–Parrat was a negligent case, and I believe if you sued an individual who had negligently lost property, and he said

“Yes, I negligently lost the property. “

that you would have no due process violation but you would have no due process violation because that is negligent.

It is not an abuse of power.

I think that when you are looking at the local level, when you are looking at the specific officer it makes all the difference in the world whether he is abusing his power and acting under pretense of law or is really involved in an automobile accident or computer error.

Those are not under pretense of law.

William H. Rehnquist:

Then to your mind the distinction really turns on negligence versus intent, not the superior versus the actual actor.

Deborah C. Wyatt:

Your Honor, I believe it is both.

As I understood your question if I were suing… If we were suing the guard himself and said,

“You lost this property. “

“You hit me with your police car. “

and it is a negligence, not that he was trying to run him over, that would simply not be a due process violation.

Deborah C. Wyatt:

What we have, of course, at this level is an intentional abusive taking, but both of those situations are different from a situation where we are holding higher people to account for policies, where we are saying the procedures you have enacted do or do not have a high risk of error.

In Logan there was a too high risk of error.

In Ingraham there was not.

There were many safeguards in Ingraham which prevented this, but in all of those cases and in fact in most of the cases that have been before this Court in due process situations we have been looking at supervisory officials for their policies and whether they allowed too many things to happen.

In that context I think negligence can state a cause of action.

But if we are looking to the individual himself for his own particular action I do not think due process is implicated unless we are talking about an abuse of power, and I think Screws and Monroe made it very clear that an abuse of power was the very target of the Fourteenth Amendment.

If you follow Petitioner’s argument an officer… We must remember that this is not just in prison settings.

The due process issue is not confined to the prison setting.

It applies to officers out on the street as well.

If an officer can walk up to someone and grab his glasses off his face because he does not like him and grind them into the ground, Petitioner’s argument would say as long as there is a state tort of conversion the victim of that abuse is confined to state court exactly as if his neighbor had done that.

Thurgood Marshall:

Ms. Wyatt, on that very point is this locker in his cell?

Deborah C. Wyatt:

Pardon me?

Thurgood Marshall:

The locker involved in this case.

Deborah C. Wyatt:

Is that his cell?

Thurgood Marshall:

Was that in his cell?

Deborah C. Wyatt:

Your Honor, to be candid I was a little confused from the record.

I became involved in this case in the Fourth Circuit, and the references in the record refer to locker and indicate that there was a dormitory.

So I am assuming from the record that the locker was within a dormitory.

Thurgood Marshall:

I have great problem with the search and seizure.

If these things had been laying out there would that have been a search and seizure, if they had been laying on his table, on his bed?

Deborah C. Wyatt:

Your Honor–

Thurgood Marshall:

Would it have been a search and seizure?

Deborah C. Wyatt:

–If it were searched or seized for no legitimate purpose… Well, it would have been a search and seizure, yes.

The question of whether–

Thurgood Marshall:

If he just picked it up off the bed?

Deborah C. Wyatt:

–Yes.

Thurgood Marshall:

That would be a search and a seizure, search and a seizure?

Deborah C. Wyatt:

I am not sure if it would be a search.

I think if he read it it might be a search, yes.

Thurgood Marshall:

How could it be a search?

Thurgood Marshall:

It is laying right there.

Deborah C. Wyatt:

Is Your Honor talking about a plain view kind of exception then to a search a seizure?

Perhaps then it would not be–

Thurgood Marshall:

I understand your complaint that the guard mistreated this man, but I do not understand where the search and seizure comes in.

Deborah C. Wyatt:

–The allegations are–

Thurgood Marshall:

Your allegations do not help me.

What does the evidence show?

Deborah C. Wyatt:

–My understanding from the record is that there is a locker and that the guard went into that locker and as the descriptions from the affidavits indicate ransacked the locker, went through the locker.

My client on summary judgment says it was for no purpose.

It was not searching for contraband.

It was only to harass.

That to me would indicate–

Thurgood Marshall:

The guard agrees to that?

Deborah C. Wyatt:

–The guard, of course, denied that, but we are here on summary judgment so for purposes of this case at this point that would be taken as true.

There were some affidavits filed in support of that saying, yes, he conducted a ransacking search of this man’s locker.

From the facts I do not believe it was in plain view.

He deliberately went in there.

Now if he went in for a legitimate purpose we would have a different analysis, but he went in to abuse–

Thurgood Marshall:

The door could have been wide open.

Deborah C. Wyatt:

–It could have been wide open, and if the regulations allow the guard to go in there–

Thurgood Marshall:

How can we decide what we do not know?

Deborah C. Wyatt:

–Your Honor, my–

Thurgood Marshall:

Suppose I need to know to decide whether it is a search and seizure whether it was sitting out in plain view.

Deborah C. Wyatt:

–The facts–

Thurgood Marshall:

There is nothing in this evidence of this case to show whether it was or was not in plain view.

Deborah C. Wyatt:

–There has been no indication that it was in plain view from either side.

William J. Brennan, Jr.:

Is that not open?

Was this not remanded for a hearing?

Deborah C. Wyatt:

This was remanded on the issue of whether there could be–

William J. Brennan, Jr.:

On the Fourth Amendment issue?

Deborah C. Wyatt:

–On the Fourth Amendment issue.

William J. Brennan, Jr.:

The things that my brother was inquiring about, would they be open to proof at the hearing?

Deborah C. Wyatt:

They certainly could be.

There are many issues left open to proof at the District Court level.

Thurgood Marshall:

Is it or is it not, not could be.

Deborah C. Wyatt:

Your Honor, the Fourth Circuit remanded primarily on the issue of whether there was a Fourth Amendment violation under the guidelines it set forth, but there are many factual matters in dispute.

I do not believe it is in dispute that it was a search.

Plain view was never raised by the guard.

Instead he said it was a legitimate search for contraband, and my client said it was an illegitimate search for harassment purposes.

I think that they both conceded then that it was a search for purposes of the Fourth Amendment, but again this will be remanded and there will be more factual evidence taken at that level.

I do not know whether my client would prevail once we get back there, but here for purposes of summary judgment it was a search and it was a harassment search.

William J. Brennan, Jr.:

Did you rely on Pape and Screws in the Court of Appeals on the issue you raised in your cross appeal?

Deborah C. Wyatt:

I did not rely so strongly.

I did urge that abuse of power was an important factor.

William J. Brennan, Jr.:

I notice neither are cited nor addressed as I see it.

Deborah C. Wyatt:

I believe Monroe v. Pape as I recall was cited.

I did urge the distinguishing feature.

There was the abuse of power.

Thurgood Marshall:

You relied on Screws?

Deborah C. Wyatt:

I do not recall.

Perhaps I did not.

Obviously if it is not cited in the Fourth Circuit level I did not.

Thurgood Marshall:

I understand Screws to say that in order to deny a federal right you have to make it explicit that you are doing it for that purpose.

Deborah C. Wyatt:

There is a willfulness requirement in Screws because of the criminal nature of that particular civil rights–

Thurgood Marshall:

No, Screws says you have to say so.

Deborah C. Wyatt:

–That the Civil Rights Act–

Thurgood Marshall:

Screws says if you are an officer and you are denying a prisoner or an individual his rights you have to make it clear that you are beating him up for the sole purpose of denying him his rights.

Deborah C. Wyatt:

–Your Honor, I believe–

Thurgood Marshall:

Is that not what Screws said?

Deborah C. Wyatt:

–I believe we have Screws although it is not life.

Deborah C. Wyatt:

It is property.

We have at this point in this Court the facts that this was deprived… Property was destroyed for an abusive purpose only, and by abusive I mean under pretense of law but for an unauthorized or illegitimate purpose.

The hypothetical I was giving I think would show that there is something inherently fundamentally unfair about an officer on the street being able… to go back to the glasses analogy… to do that and to confine somebody solely to state court.

John Paul Stevens:

Why is that fundamentally unfair if he will get paid at state court the same thing he will get paid at federal court?

Deborah C. Wyatt:

Because there is something different that has happened.

To say that is to say that the action by the official is not different than the action by the neighbor.

I think Justice Harland very well put it in his concurrence in Monroe as well as his later concurrence in Bivens that an action such as that is different in kind from an action, the same action, by a civilian.

John Paul Stevens:

But the injured party gets compensated in full under the hypothesis.

So I am asking why is it so obviously unfair?

Deborah C. Wyatt:

I am not sure what compensated in full means.

I think there is another problem, however.

If it is a constitutional violation you can also sue for injunctive relief.

If we are saying that this is no constitutional violation because you can get full compensation in the sate court then we are also saying you cannot get injunctive relief.

The state’s duty is complete upon the compensation, and the guard can keep on doing that day after day.

This Court recognized earlier this year that the due process clause protects against the arbitrary use of power in Collander v. Lawson.

If it protects against the arbitrary use of power certainly it protects no less against the abusive use of power.

John Paul Stevens:

May I ask you another question about the Screws case?

Which of the opinions in the Screws case do you primarily rely on?

Deborah C. Wyatt:

I think that which makes my point most clear is obviously that of Justice Rutledge in concurrence.

John Paul Stevens:

Does he refer at all to deprivations of property in that opinion do you know?

Deborah C. Wyatt:

No.

He does not that I know of, but I again do not know of any opinion of this Court and I would also caution the Court if we are to make a new distinction here the area of due process I do not think anyone would doubt has many complexities already.

I think if we start also a new sort of layer of distinctions here between property and life and liberty it is going to be all the more confusing although it may enter the analysis when we are looking at a procedure about how much process is due and when and how under Matthews v. Eldgridge.

What we have here is no process.

When there is no process, when there is an abusive taking it should not matter whether it is life or liberty or this pen here.

If this is my pen and an officer takes it I should not be relegated to state court to sue for its value back, and once I have done that the due process clause is silent and an officer can keep on taking that forever.

I recognize that–

John Paul Stevens:

Well, he cannot do that if you are right in your Fourth Amendment position.

Deborah C. Wyatt:

–I think they are two entirely different guarantees.

John Paul Stevens:

Is that not right?

John Paul Stevens:

If you are correct on your Fourth Amendment submission he would not keep doing it over an over.

Deborah C. Wyatt:

If this is a seizure, no, he could not because we would have a constitutional violation.

But I think they are two separate ones.

I think again that the due process clause itself recognizes a prohibition against arbitrary use of power, and I simply cannot believe that it any less protects against power not arbitrary but abusive.

It says that an officer cannot pick on someone for no reason.

Certainly it cannot say any less that someone… that an officer should be able to pick on someone for a bad reason, for an abusive reason.

I think this Court has recognized in many cases that this very conduct, an abusive deprivation, is at the heart of the due process clause.

It is conduct which was the target of the Fourteenth Amendment, and as Screws did hold though, yes, that was a life deprivation–

Sandra Day O’Connor:

Ms. Wyatt.

Deborah C. Wyatt:

–Yes.

Sandra Day O’Connor:

I guess the Court held in Ingraham v. Wright that state court remedies were an adequate process for students subjected to corporal punishment in school, and that of course is even a liberty interest, not even a property interest.

How is the interest you are talking about more significant than that?

Deborah C. Wyatt:

Justice O’Connor, I think that is a very important question because I read Ingraham a little bit differently.

I do not read Ingraham as saying that state court remedies are going to be always sufficient and, of course, Ingraham clearly does not address substantive due process.

Ingraham was one of these challenges to higher supervisory officials, the school principal, an assistant principal and at one point I believe even the school board though they got dismissed before they reached this Court.

They were the defendants, not the teacher who spanked.

That is a case, therefore, where the Court looked at the risk of abuse and said,

“We’ve got state remedies that are a deterrent. “

“We’ve got openness. “

“We’ve got a number of other reasons that the risk of abuse is very small and, therefore, the procedure satisfies due process– “

Sandra Day O’Connor:

Well, might that not be true here, too, for a deprivation of property with state remedies that could be considered adequate?

Deborah C. Wyatt:

–I think it would be if we were challenging the prison that allowed it.

I think the prison could say,

“We had no idea that this guard was abusive. “

“This was random, and the procedures we’ve instilled are basically secure against such abuse. “

But that is not this–

Sandra Day O’Connor:

You think Ingraham would have been a different result had one of the teachers who had administered the punishment were a defendant?

Deborah C. Wyatt:

–I think it absolutely would have and should have been.

I think at that case we might have been talking about something more substantive.

That teacher who had done the spanking to a hematoma might be held accountable in a way that somebody who had adopted the policy would not be.

Deborah C. Wyatt:

That is exactly the distinction that I think is very important in this case and that has been missed by Petitioner.

This is not a challenge to supervisory officials.

This is a challenge to the officer himself.

There is no excuse for his failure to deny due process.

If he wanted to take he knew how to do it.

He did not do it legally, and he violated at once the due process clause.

Accordingly, I would ask this Court to affirm the decision of the Fourth Circuit holding that the Fourth Amendment applies to prisoners and reversing the faulty due process ruling of the Fourth Circuit below.

Thank you.

Lewis F. Powell, Jr.:

Counsel, may I ask a question about the facts?

Deborah C. Wyatt:

Yes, sir.

Lewis F. Powell, Jr.:

There was another guard or officer with Hudson at the time was there not?

Deborah C. Wyatt:

I am not aware of that, Your Honor.

Lewis F. Powell, Jr.:

The affidavit from Mr. Hudson on page 14 of the appendix… Perhaps I am misreading it.

Deborah C. Wyatt:

I do see where it says Officer Lephew.

Lewis F. Powell, Jr.:

The third paragraph.

Deborah C. Wyatt:

Yes, Your Honor.

Lewis F. Powell, Jr.:

Why was he not sued?

Deborah C. Wyatt:

Your Honor, again I was appointed at the Fourth Circuit level.

I believe from all of the pleadings I certainly get the clear indication that it was Guard Hudson’s abuse, Guard Hudson’s repeated harassment that my client was most concerned with and in fact he primarily sought injunctive relief against Guard Hudson.

It may be that another officer assisted or participated, but he was not suing everybody for everything.

He was suing–

Lewis F. Powell, Jr.:

Did you request an affidavit from this other officer also?

Deborah C. Wyatt:

–Your Honor, I was not involved at the District Court level.

Lewis F. Powell, Jr.:

You were not involved?

Deborah C. Wyatt:

No, I was not.

I was appointed at the Fourth Circuit level.

Lewis F. Powell, Jr.:

Does it suggest at all that there may be not have harassment if there were two of them there and one of them was not even sued?

Deborah C. Wyatt:

Your Honor, I believe his complaint goes on to give a number of instances of how this officer abused.

Of course, they most clearly involved the search and seizure.

They also involved the destruction of his property, and although another officer I see is included in one of the incidents I think it really adds credibility to my client’s claim that he wanted Guard Hudson removed.

Deborah C. Wyatt:

That was–

Lewis F. Powell, Jr.:

You only sued on the one instance.

Deborah C. Wyatt:

–He included a number of different harassment incidents.

Lewis F. Powell, Jr.:

In his suit?

Deborah C. Wyatt:

In his suit, in his original suit.

He talks about something that happened on September 16 and 17.

He talks about the fact that a false charge was brought against him by Guard Hudson, that Guard Hudson had harassed him before, that he said

“Next time I’ll really mess your cell up. “

He did a number of things on the 16th and I believe also the 17th–

Lewis F. Powell, Jr.:

He referred to the 16th and the 17th only I think.

Deborah C. Wyatt:

–Perhaps so, Your Honor.

But he makes comments there that it was more than that.

Again, I think it is important and telling that he sued primarily for injunctive relief.

John Paul Stevens:

May I ask… You were appointed at the Fourth Circuit.

Deborah C. Wyatt:

That is correct.

John Paul Stevens:

Was he represented by counsel in the District Court?

Deborah C. Wyatt:

No.

He was proceeding pro se.

If there are no further questions, thank you.

Warren E. Burger:

Do you have anything further, counsel?

William G. Broaddus:

Not unless the Court has questions.

Warren E. Burger:

Thank you, counsel.

The case is submitted.