Smith v. Wade – Oral Argument – November 10, 1982

Media for Smith v. Wade

Audio Transcription for Opinion Announcement – April 20, 1983 in Smith v. Wade

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Warren E. Burger:

We will hear arguments next in Smith against Wade.

Mr. Presson, I think you may proceed whenever you are ready.

Robert L. Presson:

Mr. Chief Justice and may it please the Court:

This case arises under 42 U.S.C. Section 1983.

On the basis of an allegation by the Plaintiff to his rights under the Eighth Amendment, made applicable through the Fourteenth, to be free from cruel and unusual punishment, this case then presents the issue of what is the proper standard for the award of punitive damages in an action under 42 U.S.C. Section 1983.

Last year in the case of City of Newport versus Fact Concerts, Incorporated, this Court stated that in a proper case under 42 U.S.C. Section 1983 punitive damages were available.

The question now is what is a proper case.

This had not been reached before because in the Newport case it was found that municipalities were actually immune.

Although the issue was not directly reached and did not have to be reached, there was a very strong indication by this Court as to what the appropriate standard for punitive damages was.

In the course of the opinion in that case this Court stated that a public official who knowingly and maliciously acts to deprive one of his civil rights is a proper subject for punitive damages.

This in turn echoes what this Court had said in the earlier opinion, about three years earlier, in Carey versus Piphus.

Again, it was dicta.

The issue of punitive damages was not strictly speaking before the Court.

The Court did state that punitive damages would not have been an appropriate award under the circumstances in Carey because there was no evidence of a malicious intent to deprive of rights or to do injury.

Sandra Day O’Connor:

Mr. Presson, what have you been able to discover in the way of legislative history at the time of the enactment of Section 1983 that would indicate Congress was concerned about, if it so indicated, about damages, and if you didn’t find anything specifically in the legislative history, what was the law generally at that time as far as punitive damages were concerned?

Robert L. Presson:

I’m not aware of anything in particular in the legislative history about punitive damages, and in fact I believe this Court stated, I believe, in the Carey case that Congress in enacting 1983 had never really discussed the issue of damages much at all.

Sandra Day O’Connor:

Would you agree that punitive damages were generally awarded in tort cases at that time?

Robert L. Presson:

I believe they were available, yes, as early as 1851.

William J. Brennan, Jr.:

In all tort cases?

Robert L. Presson:

Pardon?

William J. Brennan, Jr.:

In all tort cases were they available at common law?

Robert L. Presson:

Not in all tort cases, no, Your Honor.

Again, I still think–

William J. Brennan, Jr.:

Well, a minority or a majority or what?

Robert L. Presson:

–Well, I think again it becomes the standard to be applied, whether the facts of any particular case–

William J. Brennan, Jr.:

Was there any burden to show intent, for example, as a predicate for punitive damages?

Robert L. Presson:

–In some jurisdictions there may have been.

I’m not aware.

Mostly I believe it was terms in phrased… phrased in terms, excuse me… of a reckless disregard.

This is what this Court has stated, I believe, 100 years ago in the St. Paul case.

William H. Rehnquist:

Didn’t the Philadelphia, Wilmington and Baltimore Railroad case, which had been decided by this Court in 1858, talk about punitive damages in terms that the injury complained of has been inflicted maliciously or wantonly?

Robert L. Presson:

I’m not specifically familiar with that particular case.

The Milwaukee and St. Paul case cited in the brief indicates a reckless disregard or whatever that is the equivalent of malicious intent, is the way this Court phrased it at that time.

That case I believe was rendered in 1875.

So about that same time I believe that’s the indication this Court had given as to what the appropriate standard was.

I think, though, that whatever it might have been immediately preceding the enactment of 1983 or perhaps even for the short time thereafter, it is not necessarily a static consideration.

Because there is so very little, in fact nothing much, said about the issue of damages pertaining to 1983, I think it is a rather fluid concept, and this Court–

William J. Brennan, Jr.:

What do you mean by “fluid concept”?

Robert L. Presson:

–Well, in the Milwaukee and St. Paul Railway case this Court rejected what had evidently earlier been the appropriate standard of gross negligence as the standard, and said attempts to adequately define gross negligence have been ineffective, that is no longer the proper standard, and redefined the standard in terms of reckless conduct, which this Court said is of such a degree that it is the equivalent of a malicious intent.

So in that sense, as early as 1875 there was an attempt to redefine what an appropriate case for punitive damages was.

William J. Brennan, Jr.:

For 1983 purposes?

Robert L. Presson:

That was not specifically a 1983 case, no, Your Honor.

William J. Brennan, Jr.:

Well, do you think the standard should be any stricter in 1983 cases than in other types, tort cases for example?

Robert L. Presson:

I believe so, Your Honor.

William J. Brennan, Jr.:

It should be?

Robert L. Presson:

I believe so.

William J. Brennan, Jr.:

Why?

Robert L. Presson:

Well–

William J. Brennan, Jr.:

For example, an ordinary tort suit against a drunken driver who strikes you in the street.

Do you suppose you could get punitive damages in such a case?

Robert L. Presson:

–It would be a possibility, depending again upon–

William J. Brennan, Jr.:

By what standard?

Robert L. Presson:

–whatever the state standards for punitive damages were.

William J. Brennan, Jr.:

I know, but what do you think it ought to be?

Robert L. Presson:

Pardon me?

William J. Brennan, Jr.:

What do you think it ought to be?

Robert L. Presson:

For state cases?

William J. Brennan, Jr.:

For the kind of case I’ve given you, the hypothetical I’ve given you.

Should it be recklessness, intentional, malice, something like that?

Robert L. Presson:

In state personal injury cases?

Robert L. Presson:

I would say that if I were standing before the Missouri Supreme Court today I’d be arguing essentially the same thing.

William J. Brennan, Jr.:

That it has to be malicious intent?

Robert L. Presson:

Yes.

William J. Brennan, Jr.:

And so you would apply that standard to 1983 and to torts generally, would you?

Robert L. Presson:

I believe so, Your Honor.

Lewis F. Powell, Jr.:

Are there Missouri cases allowing punitive damages in garden variety tort cases, and if so on the basis of what standard?

Robert L. Presson:

The basic standard is one of recklessness, Your Honor.

In fact, if you look at the instruction which was actually given in this case, that pretty much is the Missouri-approved form instruction.

That was what the judge wanted to give, so he pulled out the MAI form book and used that.

So that is the standard in Missouri.

Lewis F. Powell, Jr.:

In ordinary tort cases?

Robert L. Presson:

Right.

Warren E. Burger:

I’m still waiting for your answer… maybe I missed it… to Justice Brennan’s question of why there should be a different standard for officers.

Robert L. Presson:

Well, I think particularly in this situation, the role of the correctional officer or any state official, who are the ones that are being subject to 1983… the qualified immunity which this Court has recognized I think would be undermined by application of any lesser standard.

Warren E. Burger:

Well, doesn’t that in itself afford a substantial protection?

Robert L. Presson:

It affords a substantial protection.

What it was designed to do, I believe, was to afford the protection from compensatory damages.

But it would appear to me that if on the basis of that same standard you’re going to allow virtually unlimited punitive damages, then you are essentially undermining the protection which has been afforded by the qualified immunity to begin with.

As this Court has pointed out in other contexts, punitive damages are essentially unreviewable.

Jury discretion is virtually unlimited.

Sandra Day O’Connor:

Doesn’t the trial judge normally have jurisdiction to reduce the amount of punitive damages if the judge determines it’s appropriate?

Robert L. Presson:

That is a possibility.

But as this Court I believe stated in either the Foust or the Gertz case, this is limited by only, to quote the Court,

“the gentle rule that it not be excessive. “

Essentially I think, as this Court has pointed out on numerous occasions, they are virtually unlimited and courts appear to be very reluctant to interfere with the jury discretion.

I know of a recent case out of the Court of Appeals for the Eighth Circuit, again the court indicating that it would probably not have made the same determination on the appropriateness of punitive damages in that case, but again on the other hand they didn’t think it was an appropriate case for them to interfere with the jury’s discretion in that regard.

I believe the question of the appropriate standard… quite apart from the Court’s previous indications in Carey and Newport, I believe the rationale behind punitive damages can only be served by a more explicit standard, and that explicit standard I believe was best defined as what this Court has indicated in terms of actual malice.

The primary purpose as I see it of 1983 is not particularly punishment, as this Court noted in–

William J. Brennan, Jr.:

Actual malice, define that.

Robert L. Presson:

–Pardon?

William J. Brennan, Jr.:

Actual malice; how do you define actual malice?

Robert L. Presson:

In terms of what this Court has said in Carey and Newport: a malicious intent to deprive one of one’s civil rights or to do specific injury to that individual.

Warren E. Burger:

It requires an intent?

Robert L. Presson:

As I read what this Court said in those cases, yes, it would, Your Honor.

Warren E. Burger:

It isn’t just a passive factor?

Robert L. Presson:

I don’t believe it could be passive.

Byron R. White:

Not even recklessness would satisfy that, would it?

Robert L. Presson:

No, not as the standard, because recklessness… this Court has indicated in the sense of qualified immunity that one knew or should have known that your actions were going to deprive someone of his constitutional rights.

And although in the context of that the Court has never specifically used the term “reckless” that I’m aware of, it seems to me that if one knew or should have known, that approaches being reckless if it isn’t in fact.

I think the Court then… the basic standard of liability is a reckless standard, and it was established at that level for a very particular reason.

In other words, it is not enough to say, well, the level is already high, you don’t need to go any higher for punitive damages, because I think the level has been set high for a very specific reason, that reason being that for state officials who do exercise discretion and who are therefore entitled to the protection of qualified immunity, that the dangers of not acting or being inhibited in their actions can often be as great or greater than their actions themselves.

The Court pointed out the dangers of punitive damages and their excessiveness and unpredictability in the Foust and Gertz cases cited in the Petitioner’s brief.

In those cases, the Court indicated that even if confident that punitive damages may not be available, that say the labor union in the Foust case could still feel compelled to pass up fair settlement offers or to pursue frivolous claims, actions which this Court described as not being in the best interests of the union members.

Similarly for state officials, their actions often affect many other people other than the Plaintiff who eventually sues them in a 1983 action.

In particular here, the Defendant was responsible not just for the safety of the Plaintiff; he was responsible for the safety of anywhere from 110 to 120 inmates in that particular unit.

And the decision he makes at any particular time regarding any one of them can affect the safety and well-being of all of them, and I think he needs to have the protection afforded by the qualified immunity to make that informed discretion decision without, as this Court has said, undue timidity.

John Paul Stevens:

Mr. Presson, may I interrupt you for just a second.

You mentioned earlier that the instruction was much like the Missouri instruction, the instruction generally used in Missouri in a tort case.

Was there an objection made to the instruction in this case?

Robert L. Presson:

To the punitive damage, yes, Your Honor.

John Paul Stevens:

Yes, there was.

Thank you.

Robert L. Presson:

I believe that as far as furthering what this Court has indicated was the primary purpose of 1983 apart from compensation, and that being deterrence, it is best served by an explicit standard, as explicit as is humanly possible.

Because if one cannot predict what is being prohibited or one does not know what is being prohibited, then it is very unlikely that one could be deterred.

Or if one does happen to avoid what is subsequently construed to be prohibited, then it is sheer happenstance, rather than the exercise of an informed decisionmaking.

On the other hand, to raise the level of punitive damages in this case, to make it more explicit, and I believe in fact to enhance the deterrence rationale of 1983, does not really do any damage to that deterrence rationale.

William J. Brennan, Jr.:

I thought, Mr. Presson, that the old notion of punitive damages was that punitive damages were smart money.

In other words, a punishment for the offender by requiring him to pay this extra amount in order that he be deterred from doing that again in the future.

Now, 1983 suits, at least this one I gather is one for constitutional rights, isn’t it?

Robert L. Presson:

That’s correct.

William J. Brennan, Jr.:

Well, if one has been guilty of denying someone his constitutional rights, wouldn’t it deter future constitutional violations if he had to pay some smart money?

Robert L. Presson:

It can deter only if you can come up with a common principle such that you know what–

William J. Brennan, Jr.:

Well, the common principle I’m suggesting is, he violated the Plaintiff’s constitutional rights.

Robert L. Presson:

–That is not always in practice that easy a determination to make, particularly–

William J. Brennan, Jr.:

Whether it’s easy or not, we start with the premise that there’s been the violation, he’s had a verdict in a 1983 suit because he’s been denied his constitutional rights.

Robert L. Presson:

–True.

William J. Brennan, Jr.:

All right.

Well, why in that situation should not he then be subject to the payment of smart money in the form of punitive damages?

Robert L. Presson:

Well, again I get back to the reason for punitive damages, and that is in my mind primarily deterrence.

The process of getting from a particular judgment to deterring in the future is an inductive process.

In other words, from one specific instance try to reach a general proposition.

And I think by examining the cases which have dealt with Eight Amendment issues in terms of failure to protect you can come up with common language, but very few what I would call common principles such that you could predict what the result would be with any reasonable degree of certainty.

Some of the cases cited by the Plaintiff in his brief indicate the inconsistencies which abound in this field.

One of the cases, Schaal versus Rowe, indicated that if you turn down a request for a transfer specifically when the inmate identified why he wanted to be transferred, and that was that he had been threatened, they decided it is not an appropriate case for a transfer and he subsequently then is assaulted, that that didn’t even present a case for liability.

They said they were not indifferent.

Perhaps they made the wrong decision, perhaps they made a negligent decision.

But that wasn’t even a case appropriate for liability, much less punitive damages.

And as I view it, we really have nothing too much more than that.

I think this was a marginal case as far as a reckless standard to begin with.

But I think when you look at the cases… and some of them cited in the briefs do involve decisions of correctional officers and officials dealing with custody status or transfers of inmates, which is essentially what we have here… that quite often you are presented with, in the words of one court, alternative Eighth Amendment claims.

In other words, someone makes a threat, the person against whom it is made comes to complain.

So what do you do?

Do you put him in protective status on the basis of the mere threat?

Do you lock up the person who made it?

It is a difficult decision, and while in hindsight a court and a jury might say, well, you were reckless in that, I don’t think that provides much guidance in the way of deterrence to the officers and officials who have to make that decision on a day to day basis.

And as I say, they don’t have… they have to deal with it in terms of many situations and not simply one.

Sandra Day O’Connor:

Mr. Presson, do you have any statistics gathered as to how many 1983 actions which have resulted in plaintiff’s verdicts have also included punitive damages?

Robert L. Presson:

No, I did not do such a compilation.

I’m sorry.

Sandra Day O’Connor:

Do you know how often it’s happened in your state?

Robert L. Presson:

As far as 1983, I’m not aware of any until this one, although I suppose there could have been some actions against municipalities or other governmental units that I might not be aware of.

I think the need for a more explicit standard is not only to enhance the deterrence aspect of 1983, but it is even more important to limit what this Court has indicated is the possible abuse of punitive damages, which as this Court has indicated are not designed to compensate for any actual injury.

They are intended as a quasi-criminal fine of sorts and are often subject to abuse.

This Court has indicated that they are subject to being used against unpopular views or against unpopular defendants.

Unfortunately, in this day and age perhaps state defendants are unpopular.

But I think the Court has indicated that they are subject to severe abuse, and I think in a way a higher standard of conduct, one more readily understandable, I think, and perhaps more consistently understandable, might eliminate or at least reduce the possibility for abuse.

An alternative argument is that if 1983 in all instances does not require an actual malice showing, I think it does in this instance, simply because as a general procedural or philosophical matter the courts always talk in terms of punitive damages being available for aggravating circumstances.

I think the very use of the term “aggravating” implies a comparative analysis, two different levels of conduct, one being higher than the other.

As I stated earlier, the level of conduct in this case and applied as it is by qualified immunity was placed there for a very specific societal reason, and it was placed there because often the risks of not doing something are just as great as actually acting, and that the risk of error under those circumstances deserves some protection in making an informed decision.

I think it would undermine that policy if anything less than actual malice were to be implied.

I also believe it would be inconsistent with this Court’s opinion in Carey.

In Carey this Court indicated that you could not presume damages, even assuming proof of a constitutional violation.

That being true, it seems to me we would simply be reaching the same result here by simply saying, well, they’re punitive damages and not presumed damages.

But in either instance, Plaintiff is saying they should both… or the punitive damages should be on the same level or the same standard of liability as the actual damages.

And yet, presumed damages or punitive damages is neither one tied to the theory of compensation or to the extent of any actual injury.

It would seem to be that to award punitive damages on the same standard of conduct as that for the basic liability gets around and reaches the same result which was closed off in this Court’s opinion in Carey.

I believe, therefore, that both the policy of deterrence would neither be inhibited… because compensatory and the threat of attorney’s fees in themselves carry with it a deterrent effect, as this Court has noted on previous occasions.

To the extent that any further deterrence is appropriate under 1983, I think it is best served by as explicit a standard as possible, and I say that because, unlike either the attorney’s fees or the compensatory damages, which are inherently limited by actual costs or actual damages, as this Court has noted on many occasions, punitive damages have no such inherent restriction and are essentially unlimited.

Lewis F. Powell, Jr.:

Mr. Attorney General, if you lose this case who will pay the judgment?

Robert L. Presson:

Well, that’s a good question, Your Honor.

Certainly insofar as the actual damages are concerned, I think it would clearly be the state under the tort defense fund.

Lewis F. Powell, Jr.:

Under what?

Robert L. Presson:

Missouri has established what it calls the tort defense fund for certain state officers and officials.

Lewis F. Powell, Jr.:

The individual man was sued in his individual and official capacities.

Robert L. Presson:

Well, it wouldn’t make any difference.

Lewis F. Powell, Jr.:

It wouldn’t make any difference if he was sued only in the individual capacity?

Robert L. Presson:

If he was one of the named parties covered by the tort defense fund, even named individually, I think he would be covered.

The question becomes–

Lewis F. Powell, Jr.:

The existence of that fund… to what extent would the state be deterred by a punitive judgment?

Well, that fund doesn’t cover punitive damages, does it?

Robert L. Presson:

–Well, that’s what I said was a good question.

It’s never really been decided because as far as I know this was the first punitive damage award against the state.

What it says in its own terms is that it will pay a judgment rendered against certain specified officers.

Sandra Day O’Connor:

Well, the judgment wasn’t against the state, was it?

Robert L. Presson:

Not in this instance, no, no.

But the way the statute reads, it says out of the tort defense fund you’ll pay judgments rendered against various officials.

Included among them are employees of the Department of Corrections, as the Petitioner here.

Warren E. Burger:

Are these people bonded?

Robert L. Presson:

In some instances yes, but it’s my opinion not specifically for these.

In other words, for instance, wardens and superintendents are required to have bonds.

Generally they have a blanket sort of bond.

But what that generally covers is use or misuse of state property and damages actually suffered by the state for which the person bonded was being covered.

In other words, I don’t think it’s sort of… it’s not an insurance policy as I view it.

The only protection they really have insofar as suits of this nature would be the tort defense fund, and as to that I can’t give you a definite answer as to whether it would cover punitives.

But it might very well.

John Paul Stevens:

Who will decide whether it does?

Who will decide whether it covers it?

I’m sure the gentleman will make the claim.

Robert L. Presson:

Well, it could go to the Supreme Court.

There are two officials that have roles in the administration of the tort defense fund, the attorney general and the commissioner of administration.

John Paul Stevens:

In other words, your office has a voice in it.

Robert L. Presson:

We are involved in it.

I think ultimately we make recommendations, as I understand it, but the commissioner of administration, as I remember the wording of the statute, has discretion on paying a judgment.

John Paul Stevens:

But if the state attorney general should construe the statute as requiring the reimbursement in this situation, at least that opinion would have some weight, I suppose?

Robert L. Presson:

It would have some weight, although state officers are not specifically required to follow opinions issued by our office.

Sandra Day O’Connor:

Who provides the legal defense in the lawsuit?

Is that provided by your office?

Robert L. Presson:

Yes, and it was in this instance as well.

Warren E. Burger:

Generally is that the case?

Is that a matter of state law or just practice and policy?

Robert L. Presson:

Well, I suppose it arose primarily to begin with as a matter of practice and policy.

Now specifically under the tort defense fund we have a role in investigating and making recommendations even as far as settlement.

Byron R. White:

Is that the attorney general’s office or is it in the county?

Is it your office?

Robert L. Presson:

It’s the state attorney general’s office.

I think both as a matter of common understanding and practice as well as what our role is delineated in the tort defense fund statute, we undertake generally to represent state defendants, although in certain instances perhaps involving conflicts of interest we have not done that.

But as a general rule we do.

I’d like to reserve the remainder of my time if I may.

Warren E. Burger:

Very well.

Mr. Lockenvitz.

Bradley H. Lockenvitz:

Mr. Chief Justice and may it please the Court:

Recklessness implies malice.

A reckless or callous disregard of constitutional rights under color of law resulting in physical injury justifies an award of punitive damages under Section 1983.

Warren E. Burger:

Are you asserting that, representing that to be a universal doctrine of law?

Bradley H. Lockenvitz:

I’m asserting that, yes, Your Honor.

And I believe the availability of punitive damages in cases such as this is necessary to preserve the policy of deterrence inherent in the Civil Rights Act.

The standard is the same as that found in the common law in many jurisdictions in this country at the time this Act was initiated.

Coincidentally enough, it is the same standard required to find liability for actual damages against prison officials in this case.

I have found four states where the common law of punitive damages included some element of recklessness or gross negligence at the time the Act enacted, the states of Wisconsin, California, Alabama, Maine, and there may be others that I did not find.

But a consistent theme throughout these cases is one where, in talking of malice or reckless disregard, the courts referred to it in the disjunctive.

For example, in the state of California.

William J. Brennan, Jr.:

Excuse me.

Are you conceding, then, that at least to the extent of recklessness and callous disregard, there is that much has to be proved before there may be an award of punitive damages in a 1983 suit?

Bradley H. Lockenvitz:

Yes, Your Honor.

William J. Brennan, Jr.:

I see.

Bradley H. Lockenvitz:

But I am saying that the standard that was given to the jury–

William J. Brennan, Jr.:

I mean, that falls short, does it, of actual intent, malicious intent?

Bradley H. Lockenvitz:

–As far as–

William J. Brennan, Jr.:

How does callous disregard… how different is that from malicious intent?

Bradley H. Lockenvitz:

–I believe malicious intent can be implied by a callous disregard of known threats to health and safety, as this Court said in Estelle.

Bradley H. Lockenvitz:

The common law I was referring to refers to a malicious motive or a reckless disregard in several cases.

I might add that the Milwaukee case of this United States Supreme Court, cited by the Petitioner, of 1975, shortly after the enactment of the Civil Rights Act, referred to reckless indifference, and again it was in the disjunctive.

It said if the act was done willfully or was the result of that reckless indifference to the rights of others, punitive damages would be awarded.

William J. Brennan, Jr.:

Well, I’m not quite clear how much of an issue we have, in light of your concession.

Bradley H. Lockenvitz:

It is my position, Your Honor, that–

William J. Brennan, Jr.:

Well, how do you differ from the state?

Bradley H. Lockenvitz:

–I believe we have shown the reckless–

William J. Brennan, Jr.:

What do you think is the standard that you have to satisfy in order to get a punitive damage award?

Bradley H. Lockenvitz:

–Egregious conduct, reckless disregard.

William J. Brennan, Jr.:

Well, now I’m asking you, how does that differ from what the state’s insisted?

Bradley H. Lockenvitz:

I believe the state is asking for us to bear an impossible burden.

I think they’re asking us to look into the head of William Henry Smith to determine what he really wanted to do in this case.

Byron R. White:

You’re not objecting to the judgment below.

Bradley H. Lockenvitz:

That’s right.

Byron R. White:

You think the standard was quite proper.

It’s the state that thinks that there should be that standard that they insist on as different from the one applied below.

Bradley H. Lockenvitz:

Yes.

Byron R. White:

They’re the one that wants a different standard from what was applied below.

Bradley H. Lockenvitz:

That’s correct, Your Honor.

And I’m asking this Court not to initiate a new standard, but to maintain what I argue is the standard that has been here all along.

Byron R. White:

Whether it’s the same, whether the standard the state suggests is the same or different, you don’t really care.

You just say that the one that you’ve got is satisfactory, and that it’s authorized by 1983.

Bradley H. Lockenvitz:

I say it is authorized, and perhaps I’m not making myself clear.

I believe the state is asking for us to show something along the lines of, William Henry Smith said, Danny Wade, I’m going to put you in the cell so you can be… have your constitutional rights violated.

We cannot prove that.

We did not prove that.

But I don’t see that as any different from an example that you brought up with drunken driving.

We put people in jail in Missouri all the time for reckless disregard when driving while drunk, or manslaughter.

And I believe that’s the same standard that you apply in 1983 cases for punitive damages.

Warren E. Burger:

How many people would you say are confined in Missouri under the reckless disregard, that is not an affirmative intent?

Bradley H. Lockenvitz:

For manslaughter?

Warren E. Burger:

For anything.

Bradley H. Lockenvitz:

It would be difficult for me to say, Your Honor, but the number is substantial.

Thurgood Marshall:

How many judgments have you with additional damages on 1983 actions in Missouri?

Bradley H. Lockenvitz:

To my knowledge, this is the only one.

Your Honors, I think when looking at the standard to determine whether or not there’s malice there, whether or not there’s aggravating circumstances… when I speak of malice, I’m speaking of the implied malice that comes with the careless disregard… you also have to look at the risk.

William H. Rehnquist:

Mr. Lockenvitz, you may not have had occasion to look at our case of Sandstrom versus Montana, where… which is of course in a quite different field.

There’s no reason why you should have.

But I think that case goes into the problems of telling a factfinder that he can find intent simply on the basis of the presumption that everybody intended the normal consequences of their acts and that sort of thing.

You used the term “implied malice” just now.

Could you elaborate on how you would define that?

Bradley H. Lockenvitz:

Well, Your Honor, I just go back to the common law cases where this Court and others have said that you must show malice or reckless disregard, and there are instances where reckless disregard leads the court to believe that there was malice and to find malice.

William H. Rehnquist:

Do you think the common law cases from this Court or elsewhere generally require a higher standard for recovery of punitive damages than they do for the recovery for the tort itself?

Bradley H. Lockenvitz:

Yes, Your Honor.

But this is an extraordinary case in that the standard that we had to meet to reach actual damages at all, because of the qualified immunity, because of the prison officials being involved, is the same standard as that required in the common law for punitive damages.

William H. Rehnquist:

But if you have to reach a higher standard to impose liability at all and the common law cases suggest that there should be a difference in standards for actual and punitive damages, wouldn’t it make sense here to say that you should have had to prove a still higher standard to get punitive?

Bradley H. Lockenvitz:

I see the gist of your statement, Your Honor.

However, again I refer back.

You’re talking about some element of punishment and here we’re really talking about deterrence.

If you go back to our drunken driving cases and our manslaughter cases, we put people in jail for those same standards with the hope that they’ll be deterred, and the deterrence… and punished.

The deterrence and punishment policies are in both cases.

And we don’t have to prove any higher standard to find people guilty of drunken driving or manslaughter in Missouri.

Once we meet that burden we’ve got it, and I believe the same thing would apply here in this extraordinary case.

You see, Your Honor, I don’t see this as opening the floodgates for prison litigation.

First of all, because as I mentioned the facts are extraordinary in the case in that we were able to meet the burden at all.

But at the same time, punitive damages under 1983 are limited to individuals.

There’s no deep pocket there.

We could not have gotten punitive damages against a municipality under City of Newport.

There is a good question about whether or not the tort defense fund will cover punitive damages in this case.

Harry A. Blackmun:

Could I ask you a question, counsel, due to the remark you just dropped.

Harry A. Blackmun:

I thought I read Chief Judge Lay’s opinion for the majority below as saying that the standard for punitive damages equates with that for ordinary tort liability.

Did you read it that way?

Bradley H. Lockenvitz:

Yes, for ordinary tort liability in cases of this nature, is the way I read that.

Harry A. Blackmun:

And I thought in one of your responses to Justice Rehnquist you rather conceded that maybe there is a higher standard here.

Bradley H. Lockenvitz:

There’s a higher standard for finding the basic liability to get compensatory damages.

We have that higher standard because of the prison official being involved.

We can’t find… a court cannot find a prison official liable on mere negligence.

We had to reach that higher standard, the standard that is there for punitive damages in this case, in order to find actual damages at all.

Harry A. Blackmun:

So you are in agreement with Chief Judge Lay’s remark?

Bradley H. Lockenvitz:

Yes, insofar as it applies to cases of this nature, where you have to find this higher standard.

William H. Rehnquist:

Well, if you’re correct, counsel, then the imposition of a higher standard in some torts, such as the one you are involved in here, some constitutional tort, offers somewhat minimal protection to the Defendants, because if that higher standard is once met you can recover, a plaintiff can recover, not only actual damages but punitive damages against them, whereas if a lower standard is required presumably under your reasoning actual damages could be recovered, but not punitive damages.

Bradley H. Lockenvitz:

Your Honor, I believe the protection given to public officials and in this case prison officials with the qualified immunity is adequate with the standard for actual damages.

They are protected.

They are allowed to make these discretionary decisions because of the qualified immunity.

Harry A. Blackmun:

Of course, I wonder why you make this concession.

Even without making the concession, you still would take the position that you should prevail here?

Bradley H. Lockenvitz:

Yes, Your Honor, And again, perhaps I’m not being… perhaps my use of the word “malice” is not appropriate here.

I’m talking about implied malice from the reckless conduct.

I’m not talking about looking into the man’s head to determine what he intended to do.

Thurgood Marshall:

Well, your concession–

–I have trouble with… you say that you have to have a higher proof for actual damages in a case where a corrections officer is entitled to qualified immunity, right?

Bradley H. Lockenvitz:

Yes.

Thurgood Marshall:

And that automatically gets you punitive damages.

You lost me right there.

Bradley H. Lockenvitz:

Okay.

I say that, Mr. Justice Marshall, because by coincidence or whatever the standard we must reach in order to obtain actual damages happens to be the same standard for punitive damages under the common law.

Thurgood Marshall:

Do you know any other instance under the sun?

Bradley H. Lockenvitz:

No, Your Honor, I do not.

John Paul Stevens:

But isn’t it true, you only make that concession in Eighth Amendment cases?

It’s a deliberate indifference standard that you say is the same as the reckless disregard standard.

Bradley H. Lockenvitz:

Yes, Your Honor, exactly.

John Paul Stevens:

You wouldn’t necessarily make the same claim if it was an improperly executed search warrant or something like that?

Bradley H. Lockenvitz:

No, Your Honor.

And again, I think when you look at this to determine whether or not punitive damages should be awarded, you must look at the… you can’t eliminate the possibility of… you can’t eliminate the theory of risk.

You must look at the risk involved.

For example, in Carey the risk of real damages to these students in Carey was not very great.

They were going to leave school for a while, but there was no risk, for example, of physical injury or rape, the things that we have here.

In this case you have a situation where a guard with plenty of objective facts behind him made a decision with deliberate indifference, callous disregard, of what was known to him about these individuals.

It was similar or could be compared to putting two hungry lions in a small cage with a lamb.

Now, if the man turns his head on that we can’t really say that he intended for the lions to eat the lamb, but by merely turning his head with these facts in front of him you must presume that he deliberately did not care what happened.

And that is what we have here.

I think what we’re also talking about is what one of the colleagues of the Defendant below referred to as a common sense standard.

He testified that it was just common sense that you don’t place special treatment unit inmates in a 65 square foot cell with inmates from the general population.

Just common sense.

We’re not talking about a higher plane.

We’re not asking for this guard to review all of the constitutional law on the spot.

We’re asking him not to be careless.

We’re asking him not to show a deliberate disregard for the health and safety of this particulate inmate.

Your Honors, to overturn the decision below I believe this Court would in effect be taking away the admonition function of punitive damages.

And I want to draw the Court’s attention to a hypothetical.

If the facts of this case show that Elijah Smith, with the same guard on duty in the same dormitory, with somewhat similar circumstances, was beaten to death only a few months before this happened, if on the night that Danny Wade was raped d beaten he would have been killed, his actual damages under Missouri law or the actual damages for his family would have been very small, because they would have been limited to what he could have provided for them in supports.

And it’s unrealistic to suppose an 18 year old in prison with a felony record is going to provide much in the way of support for his family outside the prison.

But without actual damages there would be no real deterrence for these guards.

In other words, there comes a time… or I mean, substantial actual damages.

There comes a time when actual damages can be so low, the possibility of them can be so low, that a guard or someone else in that position may decide to take the risk.

In other words, it would be cheaper for him to pay the actual damages and violate the constitutional rights than it would be for him to apply some new policy or make a more careful decision, or in this case place Danny Wade in a cell downstairs with only one other inmate who is from the special treatment unit rather than in a cell with two inmates who had come from the general population.

Lewis F. Powell, Jr.:

Don’t you think as a practical matter all of these officials expect the state to pay any judgment against them anyway?

Bradley H. Lockenvitz:

I suppose these individuals expect that.

However, I agree with Mr. Presson that there’s a real question as to the punitive damage aspect of this case.

Lewis F. Powell, Jr.:

You wouldn’t expect to collect punitive damages in any substantial amount from a prison guard, would you really?

Bradley H. Lockenvitz:

No, Your Honor.

And you know, it’s interesting in this case, the fact that the tort defense fund was available was brought out in trial in a remark made by the defense counsel.

And yet, this jury, knowing that there’s some type of insurance back there, realized the role of punitive damages and these good Missouri folks decided that $5,000 was adequate to punish or deter this guard from similar conduct in the future.

Lewis F. Powell, Jr.:

Would the court have permitted you to bring that fact out?

Bradley H. Lockenvitz:

The court would have.

I did not… well, they would have permitted me to do that after the remark by the defense counsel.

Lewis F. Powell, Jr.:

Prior to that, would the court–

Bradley H. Lockenvitz:

Prior to that, no, the court would not have.

Your Honor… Your Honors, ordinarily actual damages would be enough.

But with the hypothetical that I’ve just presented to you and the deterrence policy that we’re talking about here, I believe in 1983 cases the door should be left open.

When you take a look at the legislative history… and again, as this Court has pointed out, there is no indication that… damages were not discussed in the debates.

But I saw time and time again in the debates before the Act of 1871 and its predecessor in 1866 the problem of state officials turning their backs on the rights of innocent citizens.

And it is my belief that this concern, along with the common law that existed at the time, must be read in such a way that they intended for punitive damages to be available.

And again, the damages were not actually discussed, at least where I could find it, in the legislative debates, but the policy of deterrence certainly was, and the policy of deterrence in civil rights actions, of course, has been mentioned by this Court time and time again.

Your Honors, again I want to perhaps clarify something and distinguish this case from Carey.

In Carey the Plaintiff had to show that he was deprived of a right under color of law.

He had to show negligence, that they knew or should have known that his right was being violated.

And then to reach punitive damages, because he had no actuals, he had to show some sort of actual malice, which has been defined as ill will, spite or reckless disregard.

Here, instead of a three-step process, because of the particular qualified immunity for prison officials we had to show a deprivation of a constitutional right.

But because of the qualified immunity we had to show that this deprivation occurred because of a callous indifference, an egregious failure, if you will, a deliberate indifference to known threats to health and safety, recklessness.

In other words, we met that punitive damage standard as soon as we met the standard for actual damages.

And then we showed that he knew or should have known that these rights were being violated.

Your Honors, we’re talking about balancing the interests here in this particular case and cases like it.

In this interest… in this case, what can be more important to this prison official than the health and safety of Danny Wade, as well as the overall atmosphere in this prison cell.

We’re not… in this prison dormitory.

We’re not talking about balancing the interests of free speech, as in the Gertz case.

We’re not talking about reaching into the deep pockets of innocent taxpayers by going against the state or municipality.

We’re not talking about going into the deep pockets of the labor union–

William H. Rehnquist:

–Well, where do you suppose this tort defense fund comes from?

The taxpayers.

Bradley H. Lockenvitz:

–The tort defense fund is here, Mr. Justice, because the state chose to impose that burden on itself.

Warren E. Burger:

Where did the state get the money?

Bradley H. Lockenvitz:

Practically speaking, Mr. Chief Justice, that fund is a nullity.

It is not there.

The legislature must appropriate the money each time a judgment is paid.

Warren E. Burger:

Well, that means what Justice Rehnquist and I were both striving to–

Bradley H. Lockenvitz:

From the taxpayers.

Warren E. Burger:

–The taxpayers pay it.

Bradley H. Lockenvitz:

But again, I must point out that the state imposed this burden on itself.

It didn’t have to.

It’s there because of a statute, not because they are required by the constitutional law to pay these judgments.

Byron R. White:

Who was the trial judge?

Bradley H. Lockenvitz:

The Honorable Scott Wright.

Your Honors, the policy of deterrence must be maintained with punitive damages, must be maintained with punitive damages in cases such as this, because to deprive Danny Wade and others like him of punitive damages leaves the door open for prison guards and other prison officials to take the easy way out, and if the actual damages happen to be low… obviously, they can’t be zero, but if they happen to be low… they may choose to take the easy way out and pay rather than face the possibility of deterrence.

Warren E. Burger:

The instruction of the trial judge on this subject, were they instructions given at your request?

Bradley H. Lockenvitz:

In part, Your Honor.

The trial judge surprised both counsel in applying the Missouri-approved instructions in this case.

Warren E. Burger:

Missouri state court?

Bradley H. Lockenvitz:

The Missouri state court.

Byron R. White:

For punitive damages?

Bradley H. Lockenvitz:

Both for the verdict direct… well, he modified them, obviously.

Byron R. White:

Is that instruction 5 in Missouri Forms?

Bradley H. Lockenvitz:

Instruction 5 is… not verbatim, obviously, but he turned to the MAI, the Missouri Approved Instructions, for his guide and modified it according to federal law, rather than using the federal law form books that counsel had been accustomed to using.

I might add, though, that he did not, as you can see in instruction 5 on page 13 of the appendix, he did not leave the definitions of such things as gross negligence and egregious failure to the imagination of the jury.

He defined them, I believe, with the appropriate federal standard.

The same way with instruction number 7, which appears on page 14, which is the punitive damage instruction, where he refers to a callous or reckless disregard or indifference to the rights and safety of others.

Thank you.

Warren E. Burger:

Do you have anything further, Mr. Presson?

Robert L. Presson:

Just a couple of comments, sir.

Warren E. Burger:

You have three minutes remaining.

Robert L. Presson:

The Respondent has gotten a little bit into the facts of the case, and I don’t want to dwell on them too much, but I do feel that a brief response on my part would be appropriate.

First of all, the Respondent’s characterization of placing a lamb in with two lions, his reference to what one guard called a common sense rule about not putting a protective custody inmate in with those from general population, are not the sole… are not the complete picture in this case.

The Plaintiff was in the administrative segregation unit because of conduct violations in the protective custody unit to begin with.

In other words, once he had requested to get into protective custody he was then charged himself with harassing and threatening inmates in that unit, and that was the disciplinary charge that got him into administrative segregation.

As far as the death of the other inmate a few months previous, on which this same guard did happen to be on duty at the time, again there is nothing in the record to indicate that was a result of any personal fault of that guard.

It took place at a time when there were only two inmates in the cell.

It took place during shower period, when there were two guards but both of them happened to be supervising the inmates during their shower period because the inmates were obviously out of the cell at that time.

In other words, there was no indication that this had any rational connection between the later events involving the Plaintiff here.

It seems to me, your Honor, that the plaintiff’s then argument that low damages would encourage someone to take a chance is really unsupportable.

In Robertson versus Wegmann this Court dealt with a Louisiana statute on survivorship under which certain actions might abate, and the argument was made, well, this would undermine deterrence.

In other words, they could say, well, this might abate, I’ll take the chance.

This Court rejected that as an unlikely possibility and I think it’s equally unlikely that a state official would sit around and say, well, I consider damages unlikely here in any great amount, I’ll take a chance.

That is just too iffy a proposition and I don’t believe that this Court can indulge the assumption that that would happen.

It appears to me in the final analysis that what we want to ensure is a most appropriate imposition of punitive damages, and I think a higher standard is conducive with that.

And I think it is analogous to what this Court said in Santosky versus Kramer, that a higher standard of proof ensures or places the fact-finder on notice that this is an important decision and helps to limit the possibility of an inappropriate decision.

For that reason I believe an actual malice standard is necessary.

Thank you.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.

The Honorable Court is now adjourned until Monday next at 10 a.m..