FARMER v. BRENNAN, WARDEN

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Argument of Elizabeth Alexander

Chief Justice Rehnquist: We'll hear argument next in No. 92-7247.

The spectators are admonished not to talk until you get outside the courtroom.

The Court remains in session.

We're going to hear argument next in 92-7247, Dee Farmer v. Edward Brennan.

Ms. Alexander.

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

The petitioner in this case is a transsexual.

She is a young, nonviolent prisoner of feminine appearance and demeanor.

Prior to her incarceration, she had undergone silicone breast injections and unsuccessful surgery to remove her testicles.

She alleges that she was raped approximately 10 days after her placement in general population at the Terre Haute Penitentiary.

Rape is one of the most painful and humiliating things that--

Unknown Speaker: Would you... would you preface your remarks by telling us where the petitioner is now located and under what circumstances, and also telling us precisely what relief it is that you are presently seeking?

Ms Alexander: --Yes, Your Honor.

The petitioner is currently confined at FCI Florence in Florence, Colorado.

This is a medium security facility.

She is in general population at that medium security facility.

Unknown Speaker: And what relief is it precisely that is being sought here?

Ms Alexander: She is seeking two things.

She is seeking damages from the respondents.

She is also seeking--

Unknown Speaker: From the individual respondents?

Ms Alexander: --Yes, Your Honor.

She--

Unknown Speaker: None of whom were involved in her placement at Terre Haute?

Ms Alexander: --Your Honor, we would argue that they... that their actions did cause that placement, and I will... I will get to that.

Unknown Speaker: All right.

Ms Alexander: She is also seeking an injunction to prevent her return to a penitentiary.

That is the injunctive relief that is sought in this case.

Unknown Speaker: An injunction to prevent her from being moved to a different facility?

Ms Alexander: Not to a different facility, to... to another penitentiary such as Terre Haute.

Unknown Speaker: Does the Government--

--The petitioner is in the general population at the current facility?

Ms Alexander: Yes, Your Honor.

Unknown Speaker: Well, where... where would the Government be free to move her if she gets her injunction?

Ms Alexander: She... where she is is not inconsistent with... with the injunctive relief she seeks, because it's... this would, again, become relevant on remand should the Government seek to... again, to transfer her to a penitentiary.

Unknown Speaker: Well, she was sentenced to a term that would ordinarily end her up in a penitentiary, was she not?

Ms Alexander: Your Honor, after sentencing she was... she was eligible for confinement either in a penitentiary or in a Federal correctional institution, within that... the whole range of Bureau of Prisons facilities.

Unknown Speaker: And so her... would... her injunction would request that she be confined only in an FCI and not in a penitentiary?

Ms Alexander: Yes, Your Honor.

Unknown Speaker: What's the difference between those two?

Ms Alexander: There are... they have a different security level system in general in that penitentiaries are the... the... traditionally the higher security facilities.

Marion is a highest security facility within the Federal system.

Leavenworth, Atlanta, the former Atlanta facility, those are other penitentiaries, as is Terre Haute.

Unknown Speaker: To the extent that we're dealing with the injunction, the prisoner doesn't suffer from the Government's view of the standard, I suppose, because the hearing is going to be sufficient to prove knowledge even at the Government's higher... slightly higher requirement.

So it's only with respect to the... the damage action for the past harm that the standard might make a difference, isn't that so?

Ms Alexander: I'm not certain that's true.

What I can... what I can imagine is a situation in which the petitioner would be able to prove that the... the risk was obvious that placement, again in Terre Haute or in Leavenworth or in another penitentiary, would place her at unreasonable risk, and yet the Government's position was... was we don't have actual knowledge of that.

Unknown Speaker: Is the incidence of rape higher at maximum... you mentioned Marion.

The more secure the prison, the higher the incidence of rape, or in medium security facilities?

Ms Alexander: Justice Ginsburg, I don't believe that there can be any generalization.

What is a level of violence is not... not so... doesn't so much turn on the security designation of the facility as a particular atmosphere and practices at that facility.

Unknown Speaker: In terms of the injunctive relief that you're seeking, though, I don't comprehend why Farmer is more at risk in a maximum security facility than at a medium security facility.

Ms Alexander: The allegation in this case is that the primary risk came from the fact that violent individuals were allowed to have access to her in the general population at Terre Haute.

It is... it is... the confinement of violent other prisoners that she pointed to as a risk to her, and that within 10 days of her placement in general population at Terre Haute materialized in her rape.

Unknown Speaker: And yet she did... did want to be in the general population, because when she was at Lewisburg didn't she object to being in administrative detention?

Ms Alexander: I would submit that she wanted a safe placement.

She wanted... she would have preferred that safe placement to have been in general population.

But what... what... certainly, she did not want to be raped.

She wanted a safe placement.

She has a disagreement with prison officials at Lewisburg as to what that safe placement would be.

The Federal court agreed, in that case, with the prison officials that the only safe placement was in segregation, not in general population at the penitentiary.

Unknown Speaker: Well, isn't it a part of your case, just to follow this line of questioning, that the maximum security prisons are the most dangerous because they have the most dangerous people, or is that not your case?

Ms Alexander: Is it not the argument.

The argument is what is a dangerous facility has to do with a number of factors, the characteristics of the prisoner... in this case this was a prisoner who was at extraordinarily unusual risk... and the characteristics of the facility, the particular facility.

If in a facility with very violent offenders, inappropriate and inadequate steps are taken to protect the prisoners, that is a facility in which there is extraordinarily high risk of what happened to this petitioner.

That is within 10 days of her placement, her rape.

Unknown Speaker: So then the Government doesn't make an error if it selects a... a maximum security prison, necessarily.

Ms Alexander: Not necessarily.

Petitioner--

Unknown Speaker: And it doesn't make an error if it puts the person in the general population, necessarily.

Ms Alexander: --Whether... not necessarily.

It would depend on the characteristics of the prisoner and the characteristics of general population in that facility.

Petitioner asks for an opportunity to prove that this placement in the general population at Terre Haute violated the Eighth Amendment because it was obvious to respondents that petitioner was at an unreasonable risk.

What does obvious risk mean in the context of this case?

Suppose we were making a list of people who would be at obvious risk of sexual assault if placed in a high security male prison.

Women would be at the top of the list, surely, and the risk is so obvious that we cannot imagine a prison deciding to confine women in general population at a male high security facility.

But also near the top of the list would be someone who had the appearance and demeanor of a woman, a transsexual like petitioner.

In the trial court most of the respondents filed declarations denying actual knowledge--

Unknown Speaker: How about a young man with a slight build, youthful 18, 19-year-old, slender male.

Ms Alexander: --There... one could easily imagine a number of facilities in which a person as described by Your Honor would be at obvious and unreasonable risk in general population.

On the basis of the statements of the respondents in the trial court denying actual knowledge, the trial court threw out this complaint on summary judgment without allowing petitioner an opportunity to conduct discovery.

This--

Unknown Speaker: But at least as far as the transferring officials are concerned, they didn't know, did they, what the placement would be inside Terre Haute, whether it was going to be to administrative segregation or general population?

Ms Alexander: --Well, they knew this much.

First of all, two of them filed declarations in which they said they had knowledge about conditions at Terre Haute, in the trial court.

But they also knew... and I think that the transfer documents were in the process of classification in the Bureau of Prisons, things that ordinarily are... their function is to determine placement, their function is have... to have to do with where the person goes.

And there... and therefore that what was in those was important to where... to the actual placement of the petitioner.

Now, in the... in the trial court the... the complaint was thrown out on summary judgment without giving the petitioner an opportunity to conduct discovery that would be relevant to Your Honor's point.

Unknown Speaker: But we didn't... we didn't take the case, though, on that point.

We took on the subjective standard involved for an Eighth Amendment violation.

We didn't take the case to decide whether there was time enough allowed for discovery in the trial court.

Ms Alexander: It wasn't an issue of time, but perhaps it illustrates the Seventh Circuit's standard.

If I could go back to the example of the woman who was placed in general population at Terre Haute.

Under the Seventh Circuit standard, it would... if the officials filed the same declarations that they filed in this case, we didn't know that she would be an unreasonable risk, that would end the case and that's wrong.

Unknown Speaker: Well, do you... do you agree that you... that you have to show that the prison officials were deliberately indifferent?

Ms Alexander: Yes, Your Honor.

That is... the standard that applies to this case is the deliberate indifferent standard from Wilson v. Seiter.

That and--

Unknown Speaker: Would you help me a little bit, Ms. Alexander?

Would you tell me what you think the precise legal issue is we have to decide?

I think there's been perhaps a change in the Government's position, I'm not sure.

But would you tell me what you think the issue is?

Ms Alexander: --Well, I think the change is from the Seventh Circuit standard and how much of the Seventh Circuit standard the Government would prefer to defend in this Court.

But the Government's standard is that we... a plaintiff must show actual knowledge.

Our stand... however, the Government differs from the Seventh Circuit standard by saying if the plaintiff shows that the risk was obvious, that can be circumstantial evidence of actual knowledge, and that's a reasonable concession on the Government's part.

But the--

Unknown Speaker: In other words, the Government has... on the Government's theory, the official has got to draw the conclusion which you say should be inferred by any reasonable person from the obviousness of the risk, whereas under your standard you don't have to prove that the conclusion was actually drawn, you simply have to prove knowledge of the facts that made it obvious.

Ms Alexander: --That's right.

And... and because of the Government's concession in this case, really the issue now is reframed as to what should the lower courts in the Seventh Circuit do on remand in this case.

Petitioner argues that deliberate indifference exists when a risk of serious and likely harm was either known or obvious to the defendants, defendants had the ability to forestall the harm but defendants nonetheless failed to act.

And like respondent's standard... again to clarify... this standard requires a demonstration that the defendants knew the underlying facts that rendered the risk obvious.

Unlike respondent's standard, it does not require proof that the defendants recognized an obvious risk when they saw it.

This is a rights standard because inherent in the affirmative duty that prison officials owe to protect the safety of those in their care is at least, at least a duty to know what is obvious to anyone in their position.

Unknown Speaker: Well, doesn't your standard come pretty close to being just negligence?

Ms Alexander: No, Your Honor.

This is a deliberate indifference standard, word for word, that comes from the City of Canton v. Harris case.

Unknown Speaker: Yes, but you really water it down, it seems to me, in your application.

You say that simply awareness of an obvious risk is enough, that one... the fact finder need not further infer that their... that the person was deliberately indifferent to the risk.

Well, why is that any different from negligence?

Ms Alexander: Your Honor, it's not simply obvious risk.

It is when an obvious risk exists that the prison official had the ability to fix and then in that situation did not fix.

This is not a negligence standard.

Indeed, Canton says we don't... we don't apply negligence, we don't apply gross negligence, it's only deliberate indifference.

Unknown Speaker: But we're... we're talking about a very narrow aspect of liability, or state of mind basically.

And the Government says you may infer deliberate indifference from the obviousness of a risk.

You say you don't even have to do that; simply knowledge of the obviousness of risk, without any inference by the fact finder, is enough.

And I honestly don't see why that's much different than negligent... than the state of mind required for negligent injury.

Ms Alexander: Well, when you have a prison official who the essence of that job is to maintain security and order, and that... that includes... the essence of the job includes paying attention to risk factors.

Without basic minimal attention to the job, that essence is gone.

If in these circumstances prison officials do not know what is obvious to anyone in their position, then they are oblivious, callous, or uncaring.

They're deliberately indifferent.

Unknown Speaker: Not necessarily.

They're just grossly negligent.

Ms Alexander: I don't think that's grossly--

Unknown Speaker: It seems to me that we do... we have used the phrase "deliberate indifference" rather consistently, and it seems to me what you're describing is not deliberate indifference.

It is negligent indifference, perhaps, grossly negligent indifference, but not deliberate indifference.

Ms Alexander: --I agree--

Unknown Speaker: Isn't there a subjective element to deliberate indifference?

Ms Alexander: --Yes.

And the subjective element has to... has to do with the fact that always the facts are viewed from the perspective of the defendant.

But I do agree with the first part of Justice Scalia's question.

I agree that the Court has always treated deliberate indifference as one standard, the same standard.

And that standard in Wilson says

"deliberate indifference as articulated in Estelle. "

When one looks at deliberate indifference as articulated in Estelle, one then sees, in turn, that Estelle said that... essentially, here's a list of lower court cases consistent with the standard that we announce today.

When one reads through the case... what those cases, in turn, use as their standard, those cases are consistent with... with the obvious standard, they're not consistent with the Seventh Circuit standard.

And also... that's also true of Canton.

Canton is a case in this Court that gives the most substantial guidance as to what deliberate indifference means.

Canton is a case that speaks of obvious risk.

It is a case that never speaks of actual knowledge.

Unknown Speaker: Canton was not an Eighth Amendment case, though, was it?

Ms Alexander: That is correct.

There is no question that... that the Court was addressing a statutory question, not the question of deliberate indifference.

However, it would seem odd if the Court were, without telling anyone, to 2 years after it had announced... defined deliberate indifference in Canton, to without saying it announce a different... adopt a different deliberate indifference standard in the Wilson case.

And moreover, there's another reason why the deliberate indifference standards appear to the be same standards, and that is if one looks side by side at the Wilson case and the Canton case, there are passages that are essentially parallel in the two cases.

And those passages have to do with why the Court decides that the deliberate indifference standard is the applicable standard.

The... in Canton, the Court adopted deliberate indifference because it said we... what we need here is a standard that means that... that the policymakers were culpable enough, were... were making a choice enough that it is fair to give them liability under Monell.

There's a parallel passage in Wilson which says given the state of mind requirement of the Eighth Amendment, we need a standard that is... that is deliberate enough that this standard--

Unknown Speaker: Can I come back to this case?

Are there any individual defendants here who were officers or officials at Terre Haute?

Ms Alexander: --The warden at Terre Haute, Your Honor.

And this is... this is also the respondent who, in the Lewisburg case that was referred to earlier in questioning, had filed a declaration that led to the Federal court finding that it was... that of course it's unsafe to put a transsexual in general population at this penitentiary.

Unknown Speaker: Now, in the prior litigation when this prisoner wanted to be taken out of solitary and put in the general population, the Bureau of Prisons took the position that the prisoner was too high risk to do that?

Ms Alexander: Yes, Your Honor.

And they said... and the Bureau of Prisons was successful in Federal Court because the Federal Court found that... that the decision of the officials that this transsexual should not be in general population was an appropriate decision for the officials to make.

Unknown Speaker: And does that position and knowledge, is that attributable now to the warden at Terre Haute, in your view?

Ms Alexander: I would say that that means that there was actual knowledge on the part of this respondents.

Of course, it was not before... given the dismissal on these... the face of these declarations, this additional information about actual knowledge wasn't available to the trial court.

And it suggests, of course, why it's so important--

Unknown Speaker: Why wasn't it available?

Ms Alexander: --Because the petitioner approached, who was proceeding without counsel, didn't put that information in.

Unknown Speaker: I see.

Ms Alexander: Why the respondent didn't point that out to the court is, of course, another issue.

But--

Unknown Speaker: Ms. Alexander, just a trivial question.

This case came up through the Western District of Wisconsin.

Ms Alexander: --Yes, Your Honor.

Unknown Speaker: Why?

Ms Alexander: Because several of the respondents are from Oxford, the transferring institution, which is in the Western District of Wisconsin.

So that's where the petitioner filed the case.

Now--

Unknown Speaker: Ms. Alexander, we took the case for this subjective/objective issue and not for whether, assuming that the subjective approach is correct, the granting of the motion for summary judgment was proper.

But if we were to reach that... that latter issue, there really may be a lot less to this case than meets the eye, don't you think?

I mean, let's assume that we were to rule against you and say that, in fact, there has to be knowledge of the dangerous situation and that the situation is dangerous.

If you have a situation where it is as obvious as you say it was here, I assume you would not be able to grant a motion for summary judgment because the fact finder could certainly conclude from the fact that it was so obvious that this warden knew about it, if it was so obvious, right?

Ms Alexander: --I would agree that on a variety of levels the trial court committed error.

Unknown Speaker: Fine.

Ms Alexander: But that error was invited by the Seventh Circuit standard--

Unknown Speaker: But, I mean, we may not be arguing about a whole lot here, that it really may not make a whole lot of difference whether you say it's a subjective standard or an objective standard.

If it's as obvious as you say it is, any fact finder with a brain in his head is going to say that the warden must have known about it.

Ms Alexander: --I would agree that it is very possible that in this case this standard wouldn't make a difference, because any fact finder would infer from the circumstantial evidence evidence of actual knowledge.

However, the general standard makes a great deal of difference.

And, by the way, I would respectfully disagree with the characterization of our case as a subject standard... an objective standard.

Ours is a subjective standard also because it necessarily requires--

Unknown Speaker: Call it a subjective standard once removed, how about that, all right?

[Laughter]

Ms Alexander: --Yes, Your Honor.

And I'd like to make another--

Unknown Speaker: Well, Ms. Alexander, if knowledge of the defendants is an element, do you accept the model penal code definition of knowledge?

That is, knowledge is established if a person is aware of a high probability of its existence unless he actually believes it does not exist.

Ms Alexander: --Your Honor, again, under our standard the actual knowledge simply isn't what the... the trier of facts should focus on.

It's the obviousness of the risk.

Unknown Speaker: Well, I know that's your argument, but there certainly is a risk here that that isn't what the court's going to adopt, and so I wanted to explore with you whether you accept the model penal code definition?

Ms Alexander: Your Honor, with... without having given it a great deal of thought, for which I apologize, as I hear it it seems to me that that... were the Court to adopt what I think would be the wrong standard, that indeed may well be what it would adopt.

And I want to turn to another point because I think it's important here: respondents' attempt to defend their standard by arguing that this case is about the wide latitude that prison officials must have in running prisons, and in particular in making housing decisions.

The concerns respondents raise about the complexities of decisions of prison staff are not wrong, but they're not central to this case.

The respondents' claim here is that they lacked actual knowledge of an unreasonable risk to the petitioner.

According to the transfer documents in the record, respondents didn't even consider petitioner's transsexuality when they placed her in general population in a penitentiary, even though the most distinctive fact about this petitioner is her transsexual status.

You can't claim to have considered a risk you also say you didn't know about, thus respondents' denial of actual knowledge of the unreasonable risk logically precludes them from claiming that the placement was based on a reasoned judgment.

Thus this isn't a case about deference, it's a case about the proper standard under the Eighth Amendment.

Respondents attempt to force their standard into conformity with this Court's precedent.

This effort has required that they jettison whole sections of the Seventh Circuit standard.

Even with the remodeling, the standard they--

Unknown Speaker: Suppose... suppose this... Farmer had said at Terre Haute, as Farmer did at Lewisburg, I want to be in the general population, and then this horrible event occurred, would she still have a 1983 case?

Ms Alexander: --Yes, Your Honor.

There might be some circumstances in which the fact that the plaintiff essentially represented that there wasn't an unreasonable risk would render an otherwise obvious risk not obvious, but if the risk was obvious, then we ought to think about who has the better information on that.

It's... certainly the prison officials know... knew far more about what general population was like at Terre Haute than did the petitioner.

And so it's... it's the wrong concept to think of taking from the prison officials, who have the information, the duty and giving it to prisoners who don't have the duty and also who don't have the information.

Because that... the notice... the requirement that you warn prison officials that is so frequent in the Seventh Circuit, either the warning's superfluous in that they already have the information or you're required to warn them about something that you don't know as a prison, something they're in the better position to... to address.

Unknown Speaker: But this was... this was... it's a Bivens case, isn't it?

Ms Alexander: Yes, Your Honor.

Unknown Speaker: And this was about the sixth or seventh institution.

Ms Alexander: Yes, Your Honor.

I would like to reserve the balance of my time.

Unknown Speaker: Very well, Ms. Alexander.

Mr. Bender, we'll hear from you.

Argument of Paul Bender

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

I'd like to start by clarifying a couple of factual matters that the Court expressed interest in in Ms. Alexander's argument.

First of all, although it was true until 7 days ago that the petitioner was in the general population at Florence, 7 days ago he went into administrative detention for reasons that have nothing to do with this case, and so he is presently in administrative detention at Florence.

But prior to that time he had been in the general population for 5... for 5 months.

A related clarification that I would like to make--

Unknown Speaker: You'll have to help me, Mr.... Mr. Bender.

How does that have... bear on the... on the question of whether the complaint states a cause of action?

Mr. Bender: --I don't think that does at all, but the Court had asked that and there's no way that Ms. Alexander would know that.

I just found that out yesterday, and I didn't want to leave the Court with a misunderstanding.

I don't think that's relevant at all.

Something that is possibly relevant to relief that I also need to clarify is something that I think reflects a misunderstanding on our part in our brief.

At the end of our brief in talking about the possibility of injunctive relief, we said that we thought that injunctive relief was no longer... would no longer be appropriate in this case because the petitioner was in administrative detention status because of his HIV-positive status and the fact that he had been involved in consensual sexual activity at Oxford.

Bureau of Prisons has a policy with regard to HIV-positive inmates that if they are either predators or if they are sexually promiscuous, it will very often put them in administrative detention status.

And it was our understanding at the time we wrote the brief that the petitioner would remain in that kind of... either in that kind of segregated or status or at a place like Springfield, which is where he went after Terre Haute, which is a medical facility.

And although petitioner did remain in those two statuses for a long time... he was at Springfield for 2-1/2 years after Terre Haute, after he was put in administrative detention at Terre Haute... he was then put in general population at Florence, where he has existed for 5 months without any problem.

What's going on there is that putting HIV-positive people into a segregated status is something that the Bureau of Prisons does but they don't do that permanently.

They continue to reevaluate whether that's the appropriate thing to do, because the general presumption is that they would like to put everybody in general population.

And therefore the time came... after he had been without serious problems for a long time, the time came when they thought that they should put him in a general population.

We still think that injunctive relief is not appropriate here because the injunction here that's requested has to do with placing him in a penitentiary status.

Penitentiaries are those next-to-the-highest-level institutions, like Lewisburg, of which there are four or five, I think.

Since there is no present threat of his being placed in a penitentiary status, injunctive relief we think is inappropriate in this case, because there isn't the kind of threat of that kind of action which would justify injunctive relief.

So the conclusion is the same.

Unknown Speaker: Mr. Bender, do you... do you think that this... this issue that we've been focusing on today, whether it's a subjective test or a subjective test once removed, pertains only to monetary relief, and that... and that as far as injunctive relief is concerned, the... as far as that goes, the prison is certainly put on notice when a complaint is filed, right?

Mr. Bender: Yes, that's what I was going to say.

I don't think the Court has ever clarified whether it's exactly the same test in injunctive relief cases.

Unknown Speaker: Yeah.

Mr. Bender: But it doesn't really come up, because if you're suing for injunctive relief you will put the... you will put the prison officials on notice by the allegations in your complaint.

Unknown Speaker: Yeah, but you... you could say that the complaint should be judged on the basis of the state of facts at the time it was filed, and you could always come in and say at the time it was filed we had no knowledge.

Mr. Bender: Well, even if you said that--

Unknown Speaker: They'd file an amended complaint, right?

Mr. Bender: --You could... you can put them on notice by sending them a letter saying that the following--

Unknown Speaker: Before you file.

Mr. Bender: --Before you file.

So I don't think that will... I don't think knowledge of facts will ordinarily be a problem in injunctive actions.

I think it will... the issue will be much more important in damage actions, which is the... the only... the action brought against four of the people here.

It's important in that regard to realize... and I want to emphasize that those four people against whom damages are sought here, their only connection with this case was that they were the officials who transferred the petitioner to Terre Haute.

None of those people were the officials at Terre Haute who decided to put him in the general population.

Unknown Speaker: I thought one of them was the warden of Terre Haute, no?

Mr. Bender: One of them was the warden of Terre Haute at one time, but at the time the action was brought he was not... he was no longer the warden at Terre Haute.

But he is not sued for money damages, interestingly enough.

He was the warden at Terre Haute at the time of the incident, but he's not being sued for monetary damages, he's only being sued in his official capacity, which is only a suit for injunctive relief.

That's an interesting facet of this case.

The only people who are being sued for money damages are the officials at Oxford and the officials at the North Central office who authorized the transfer to Terre Haute.

Unknown Speaker: Do... are any of the officials who are... who are named in the complaint and against who injunctive relief is sought, do any of them currently have the power to provide the injunctive relief?

Mr. Bender: I think the Director--

Unknown Speaker: He's in a different institution now, right?

Mr. Bender: --I think the Director of the Bureau of Prisons does.

Unknown Speaker: The director.

Mr. Bender: I think that would be the only person among those people who would currently have the power--

Unknown Speaker: And you say... and your one argument against injunctive relief at this point is that there's no threat of what... what is sought to be enjoined?

Mr. Bender: --That's the main argument, yes.

Unknown Speaker: Well, what's--

Mr. Bender: There is another argument.

Unknown Speaker: --What's the other one?

Mr. Bender: Which is that there is not... there is no showing on this record that there... even in a penitentiary, that there would be the very serious threat of injury which would justify an injunction against the transfer to any penitentiary, but I don't think the Court, or the lower court if you remand the case on that, would have to reach that issue, because there is no plan whatever and no consideration of putting him in one of the very few penitentiary institutions.

The one he was in in general population, which is Lewisburg... Terre Haute is no longer what you would call a penitentiary institution.

It is a lower level.

The one penitentiary institution that he was in, the warden there made the judgment, as is apparent in his district court litigation with... with Carlson, wouldn't made the judgment that it wasn't safe to put him in a... in the general population, and we know no reason to think that that judgment would be any different today.

The Court... one other factual matter.

Justice Ginsburg, you talked about the horrible event that occurred here.

The Court should be clear that that is an allegation only.

There is--

Unknown Speaker: The alleged horrible event.

Mr. Bender: --The alleged horrible event.

I think that important to bear in mind.

The Court said that it took the case to deal with this subjective/objective issue, and that's what I would like to address... to address myself to.

I assume the Court noticed an apparent conflict between the Seventh Circuit on that, which seemed to... to say that there was a subjective test, which did say there was a subjective test of actual knowledge, and the Third Circuit.

One opinion of the Third Circuit indicates that "should have known" is enough.

There doesn't have to be actual knowledge.

I think it's important in thinking about this, to think first about what deliberate indifference means.

Everybody agrees that that's the standard, deliberate indifference.

I think there are at least two factors in deliberate indifference, and it's important not to get them confused with each other.

In a situation like this where you're talking about protecting an inmate from attacks by other inmates, deliberate indifference has one element of the prison official's knowledge of the risk.

There's did the prison official know, or if you take the objective approach, should the prison official have known that there was, in fact, a risk?

That's the first element.

Then there's a second element; knowing about a certain risk... and there are lots of risks in prison... was the prison official deliberately indifferent to that risk.

We take the position, as did the Seventh Circuit, that on the first of those elements the Court has already decided... and if it hadn't it should decide now... that it is a subjective standard.

You cannot be deliberately indifferent to a risk unless you know about the risk.

And that is the position that we urge you to adopt.

Unknown Speaker: Now, Mr. Bender, on that point do you accept the model penal code definition of knowledge?

Mr. Bender: The one you had mentioned to Ms. Alexander?

Unknown Speaker: Yes.

Mr. Bender: Would you read it again?

Unknown Speaker: Yes, if I can put my hands on it, because I thought it was of some interest.

It says:

"When knowledge of the existence of a particular fact is an element of the offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes it does not exist. "

Mr. Bender: Yes, we accept that.

In fact, our brief... our brief makes reference to that.

Unknown Speaker: But do you think that's what the Seventh Circuit's view of the word "knowledge" is?

Mr. Bender: I'm not sure.

Unknown Speaker: It is rather clear it's not when they say "actual knowledge", isn't it?

Mr. Bender: Well, I think what the model penal code definition is referring to is what's often called the ostrich situation, the head-in-the-sand situation, that if there's a... if there is a high probability and you stop yourself from making a conclusion, you turn away from it, that that can also be dealt with as actual knowledge.

But otherwise, I think you need to have actual knowledge.

Just the fact--

Unknown Speaker: Well, then I'm not sure you do then agree with the... with the model penal code.

It seems to me the model penal... it's one thing to say you can infer from knowledge of the risk that you knew about it, or that you had the necessary subjective standard.

But to say there's simply a high prob... that you knew there was a high probability, it seems to me it would fall a good deal short of ultimately inferring actual intent.

Mr. Bender: --Well--

Unknown Speaker: Actual--

Mr. Bender: --Well, that's what... that's where I think we can get confused between the first issue and the second.

If you're aware of a high probability of risk, it seems to me you are aware of a risk.

And then the question is were you deliberately indifferent to the risk that you were aware of, and those are two different questions.

It's not enough to show, in a deliberate indifference case, that the prison officials were aware that there was a dangerous situation.

You've also got to show that they were deliberately indifferent to that dangerous situation.

Unknown Speaker: --But is it your position that the finder of fact must infer that they actually knew of the risk?

Mr. Bender: Yes, that they knew of the danger, right.

Unknown Speaker: That you could infer it from knowledge of other... other facts.

Mr. Bender: Right.

We believe that you can make such a finding based on circumstantial evidence, but the finding must be... if you have a jury, you should tell the jury that they... in order to find there's a violation of the Eighth Amendment, you have to find that the defendant knew of the risk--

Unknown Speaker: Then I suggest you don't really agree with the model penal code.

Mr. Bender: --I was reading that... that part of the high probability to refer to a situation where if you know of a high... if you know... I think the problem is that risks are probabilities and we're talking here about risks, and therefore if you know of the high probability of a risk, you know enough about the risk.

Unknown Speaker: But you can analyze, I think, the thing best in terms of what instruction do you give the jury.

And it seems to me, your... under your view you would give the jury that you... you must have known and then go on to say you can infer knowledge from a number of things.

Mr. Bender: Right.

I agree completely, yes--

Unknown Speaker: But suppose there is a risk that's known, that inmates of a certain kind are assaulted at Terre Haute, and the prison official knows there's a high probability that this person is in Terre Haute, what result?

Mr. Bender: --They don't know he is in Terre Haute?

Unknown Speaker: No.

Mr. Bender: They just know there's a probability that he is in Terre Haute.

That would be different.

There I think they would have to know that he is in Terre Haute.

Unknown Speaker: No liability, in your view.

Mr. Bender: If... if liability would turn on their knowledge that he's in Terre Haute, yes.

Unknown Speaker: Then you really don't agree with the... with the--

Mr. Bender: On that part of it, I--

Unknown Speaker: --Because that's not a probability.

It seems to me you ought to agree with that.

If there's a high probability that he's in the general population, that's... that seems to me enough to create deliberate indifference.

He really doesn't, you know.

Yeah, he may well be there, he probably is there, but I don't care.

I consider that, you know--

[Laughter]

I consider that deliberate indifference.

Mr. Bender: --I think if... it's sort of a risk on a risk.

If you are aware that there's a high probability he's in the general population and the general population is a very dangerous place, then I think the prison official should try to find out whether or not he is in the general population, and not to do so would be deliberate indifference.

Unknown Speaker: He's aware of the risk.

Mr. Bender: He's aware of the risk.

Unknown Speaker: If there is a probability that he's in that population, he's aware of the risk.

Mr. Bender: I think that's right.

And I think the confusing thing is we're dealing here with risks to begin with, and so we're dealing with probabilities, and you've got to be aware of the probability.

Unknown Speaker: In other words, the probability is a... is, in effect, an inference.

I mean there are facts and there are inferences from them.

The risk is an inference which you draw from the facts, and you're saying you've got to prove that they drew the inference.

I.e., in the model penal code's terms, you've got to prove that they understood the high probability that these facts implied.

That... isn't that what you're saying?

Mr. Bender: Yes.

Unknown Speaker: Yeah.

Mr. Bender: Yes, I think so.

Otherwise it's hard to say that you're deliberate indifferent to it, if you don't know about it.

I think that flows from the Court's decision in--

Unknown Speaker: If you're a bad logician, you may have a defense.

Mr. Bender: --You may have a defense to a... to an Eighth Amendment claim.

You may not have a defense to a negligence claim.

And it's really important to understand here that there's also a possibility of bringing a Tort Claims Act suit for negligence.

On the other hand, I do want to say that we don't take the position that this ought to be approached as if it were a criminal case.

There are some things in the Seventh Circuit opinions which say use a criminal approach to what recklessness is.

I don't think that helps.

These are not criminal cases.

If a warden of a prison--

Unknown Speaker: You do... you do suggest twice in your brief that a remand might be appropriate, remand might be appropriate.

You say it on page 10 and again on page 29.

But you're not precise about, well, what should the instruction be to the Seventh Circuit.

Seventh Circuit, you didn't get it right so we have to remand.

What does the Government say, in a nutshell, is right?

Mr. Bender: --First of all, one problem is the Seventh Circuit never wrote an opinion in this case, so we're talking about other Seventh Circuit opinions.

Unknown Speaker: Yes.

Mr. Bender: I think you should tell the Seventh Circuit that they got it right, that there has... it's actual knowledge of the risk rather than somebody... a reasonable person should have known of the risk, that they got right.

I think you should tell them that it doesn't help to look at this as if it were a criminal case, and it doesn't help to tell a jury that they should look at it as if it were a criminal case.

I don't think we will... we take the position that we don't take the position that a warden who was found to be liable because of a violation of the Eighth Amendment, if that should occur, is equivalent to a criminal.

It's not a criminal case, it's a civil case, and I don't think it ought to be thought about in those... in those terms.

Unknown Speaker: Mr. Bender, can--

--But the reason that that is helpful, it seems to me, is that it does invoke such constructions as the model penal code where we're talking about an actual state of mind.

Mr. Bender: It's... I think it's fine to do that and I think you should do that, but it's the aura of criminality that I don't... that I don't think is acceptable.

Unknown Speaker: Well, except that the state of mind I have described is not usually a test in the civil law at all.

Mr. Bender: And I think you should make clear what the state of mind is that you're talking about.

But I don't think it--

Unknown Speaker: So it's not civil, but it's not criminal either.

Mr. Bender: --It's civil.

It's... to be, to make sure that juries are not told that they should only find an Eighth Amendment violation if they find that the defendants were criminals, were the kind of people who should be... who should be treated as criminals or go to jail or have criminal sanctions invoked against them.

I think that puts an aura on the case which is not... which is not entirely appropriate.

Unknown Speaker: Well, I'm not sure anyone has suggested that.

Mr. Bender: I should say, in that connection, that the Government's position in this case is a position that is... is forged from a variety of interests that we have.

The Government interests are certainly in defending officials of the Bureau of Prisons against unjustifiable and incorrect suits of violations of the Eighth Amendment.

But the Government also plays a role in suing prisons for unconstitutional prison conditions, and I think it's important that we bear both of those things in mind.

And, for example, in trying to remedy unconstitutional prison conditions, I don't think that we should be required to show that the people who are running those institutions should be treated as criminals.

That's not... that just may... it seems to me is too heavy a burden.

I think--

Unknown Speaker: What is the second part of your charge?

The first part is actual knowledge of the risk.

Mr. Bender: --Of the risk.

Unknown Speaker: But once you have actual knowledge of the risk, then what?

Mr. Bender: Then you have to be deliberately indifferent to the risk, which means that there has to be something that you could do readily to avoid the risk, and you have to have made a decision not to do that even though it was something that could easily have been done.

That's the indifferent part of it, and the... and the deliberate indifferent part of it is that you are aware that there's something you could do and that you don't do anything to deal with it.

Now that's very hard to quantify, and I think that's where the obviousness comes into it, and I think that's one of the confusions.

There if you... there you could say if it is obvious that something should be done and this person didn't do it, that might amount to deliberate indifference.

Obvious in the sense that there's something that can be done to alleviate the risk and that action isn't taken.

Unknown Speaker: Mr. Bender, we've talked in... trying to phrase in general terms without being concrete about the particular allegations.

On page 7 of your adversary's brief the petitioner points to a Bureau of Prisons report in 1986 which, quote, stated that petitioner would be subject to a great deal of sexual pressure because of her youth and feminine appearance.

Now, is that a sufficient knowledge of the risk that's at stake in this case?

Mr. Bender: That is a knowledge of a risk, but another--

Unknown Speaker: Does that take care of the first... the first half of your two--

Mr. Bender: --No, because the risk has to be a very serious risk, a very severe risk of very serious harm.

Otherwise every prison official in the country would be violating the Eighth Amendment at every moment.

There's always a risk in every prison of something happening.

Unknown Speaker: --You don't think that's a special risk that's described there?

Mr. Bender: Just the fact that somebody is effeminate or young.

Unknown Speaker: And is specifically identified as being particularly subject to a great deal of sexual pressure?

Mr. Bender: I guess it depends on what you mean by a great deal of sexual pressure.

Unknown Speaker: Well, in which way do you construe those allegations, favorable to the plaintiff or the defendant?

Mr. Bender: Right.

I think there has to be a very great likelihood that the person is in danger.

Sexual pressure seems to me an awfully vague term to refer to that.

It would be better... it would be an allegation that's closer to liability in this case if it was subject to a considerable risk of being attacked.

And it has to be a considerable risk of being attacked, not just a small risk.

And that is, again, a very hard part of the standard to quantify, but it's important to realize that it's got to be more than the normal risks in prison.

And, also, people who are young and effeminate have to be housed somewhere in an institution.

You... I don't think it's fair to them to say that they always have to be kept in a solitary confinement situation.

The Bureau of Prisons likes to have people in the general population, and the fact that there is a small danger that a person will be attacked in the general population does not seem to me to--

Unknown Speaker: Well isn't it fairly generally known that the danger is not really small, just throughout the prison system?

Don't you start from a predicate of very substantial danger throughout the system?

Mr. Bender: --No, I don't think that's... I don't think that's true, at least with the Federal prison system.

The... the statistics that I've seen, which are published statistics from 1989, indicates that the number of assaults of any kind, including sexual assaults but other assaults as well, in the Federal prison system in 1989 in general was about 1 percent of the population, a little bit less than 1 percent of the population.

That does not suggest to me that throughout the system there is a considerable risk.

Interestingly enough as well, the statistics for the institution to which the petitioner was transferred, Terre Haute, the statistics of assault... assaultive occasions there during that year are exactly the same, almost exactly the same percentage, slightly less 1... less than 1 percent.

There may be some institutions at some times where there is a much greater risk, and I don't mean to denigrate a 1 percent risk.

Unknown Speaker: What do you mean by 1 percent?

1 percent of all of the prisoners were involved in an assault?

Mr. Bender: Were assaulted.

Unknown Speaker: Were assaulted.

Mr. Bender: Yeah.

Unknown Speaker: 1 percent--

Mr. Bender: Any kind.

Unknown Speaker: --In that year.

Mr. Bender: An assault of any kind within the Federal system during--

Unknown Speaker: It's not just sexual assaults.

Mr. Bender: --No, no, not at all.

Unknown Speaker: Any kind of assault.

Mr. Bender: Assaults of any kind.

We don't have... I did not see figures about sexual... a breakdown with regard to sexual assaults.

So I don't think--

Unknown Speaker: Let me... that's a... that's really quite a surprising statistic.

How do they define assault?

Is it some... ones that have been subject to disciplinary action?

Mr. Bender: --I think the ones that have been reported.

Unknown Speaker: Yeah, because--

Mr. Bender: And I think--

Unknown Speaker: --Presumably there are occasionally these incidents that don't surface.

Mr. Bender: --Right.

And we don't know how... we don't know how great they are.

But there is nothing in the record in this case that indicates that either there was a great risk of that kind of assault at Terre Haute generally, in the general population, and there's certainly nothing that indicates there was any such risk in segregation at Terre Haute.

And the position of the respondents here is that the four respondents who were responsible for sending the petitioner to Terre Haute only sent the petitioner to Terre Haute as a... as an institution.

They knew that when he got to Terre Haute he would be put in a segregated situation, administrative detention, for purposes of evaluation, and that the officials there would know what the situation was in Terre Haute at the time, and would know about his transsexualism and his history in prison previously, and that they would then make a decision, based on their... their based judgment, about whether it was safe to put him in the general population.

And it's not at all certain that they would make a judgment to put him in the general population.

When he was at Lewisburg, which was the first institution he landed at, he was never put in the general population.

And therefore you cannot say on this record that there could be enough evidence to survive a summary judgment motion that these... that these defendants had the knowledge of the risk.

Because even if you were to assume that there was a substantial risk in the general population at Terre Haute... and there's not any basis for that either given the statistics I've just mentioned.

Even if you were to assume that, there's no inevitability that the petitioner is going to go into the general population at Terre Haute.

He could stay in segregation for a substantial time and then be moved to another institution.

Transfers from one institution to another are often does as a disciplinary matter.

If somebody, as this petitioner has, manipulates the institution, has access to telephones, commits credit-card fraud while in the institution, it's often thought that it's useful to move him to another institution where he won't have that... that same ability to manipulate.

That could involve moving him to another institution where he would stay in a segregation status for 6 months and then be moved to yet a different institution if the thought was he should then come out of administrative segregation.

And so it's for those reasons that we take the position that there is no basis for... for remand on that issue, that the Court can affirm the summary judgment on that issue.

If there are no other questions.

Unknown Speaker: Thank you, Mr. Bender.

Ms. Alexander, you have 4 minutes remaining.

Rebuttal of Elizabeth Alexander

Ms Alexander: Thank you, Your Honor.

When the Government refers to the record, of course they're referring to a record that we had no opportunity to develop with regard to the risk at Terre Haute.

But I would submit, even bearing that in mind, that whatever the general risk, if it's 1 percent, of assault per year in Terre Haute, that wasn't this petitioner's risk of assault.

This petitioner was at a... at an extraordinarily high and unusual risk in comparison to the background risk.

And I'd like to... to then turn to Justice Stevens' comments about the... what was in the record, because what is in the record is about... what... where the record has some development is about what put this petitioner at risk, and that points out something that's important to bear in mind.

Both sides here have a subjective standard.

It is... because to both sides actual knowledge of something is critical.

To our case, actual knowledge is critical because in order for there to be a risk that is obvious, that... because it has to be obvious to the defendants, those defendants must know the facts, must have actual knowledge of the facts that make it an obvious risk.

So actual knowledge plays... is central to both cases' description of the subjective component.

And this also points out to something that is, I think, one of the real practical problems, and one of the things that's wrong with the Government's proposed standard.

In this case what is it that the... that the respondents didn't know about this petitioner?

Presumably they would... they would... the record seems to indicate, and at least it is alleged that they knew she was a transsexual.

The answer says... this answer admits this is a person who projects feminine characteristics.

They knew she was in general population at Terre Haute, a penitentiary.

That they... according to the allegations of the complaint that she was not allowed to develop, they knew this was a violent place where a person with the characteristics of petitioner would be assaulted.

They also, according to petitioner, knew transsexuals were at high risk.

But yet the problem with the Government's standard is even assuming that petitioner had all these allegations and therefore assuming that she would be able to establish them, they would still say I knew these facts but I didn't know that she was at high risk.

And that is... that is why it makes more sense when one looks at what is the actual knowledge that prison officials need to have.

It ought to be actual knowledge that makes the risk obvious, because otherwise it's always a retreating standard.

If there are no questions, I am concluded.

Chief Justice Rehnquist: Thank you, Ms. Alexander.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until Tuesday next at ten o'clock.

Print this transcript Transcript: 

Argument of Justice Souter

Mr. Souter: The first of the two is Farmer and Brennan, No. 92-7247.

This case is here on certiorari to the Court of Appeals for the Seventh Circuit and it requires us to define the term, "deliberate indifference".

Under the Eighth Amendment, prison officials have a duty to ensure that prison inmates receive adequate food, clothing, shelter, and medical care, and to protect prisoners from violence at the hands of other prisoners.

Prison officials violate that constitutional duty when they act with deliberate indifference to a substantial risk of serious harm to an inmate.

In an opinion filed with the Clerk today, we hold that a prison official may be held liable for acting with deliberate indifference to a substantial risk of serious harm only if he is aware of that risk and disregards it by failing to take reasonable measures to abate it.

That subjective definition of deliberate indifference is the equivalent of the recklessness as generally used in the criminal law and it is compelled by Wilson and Seiter decided in 1991 which interpreted the word "punishment" in a Cruel and Unusual Punishments Clause to mandate inquiry into a prison official state of mind in which held that inmates challenging the conditions of their confinement must satisfy what we called a subjective requirement.

In object to approach deliberate indifference adapted by some Courts of Appeals and urged on us by petitioners simply incompatible with our precedent.

The prisoner here is a federal prisoner who is a transsexual and who respondent, federal prison officials agree, projects feminine characteristics.

The petitioner claimed to have been beaten and raped by another inmate after being transferred to a federal penitentiary and placed in its general prison population.

The District Court dismissed petitioner's lawsuit which claimed the violation of the Eighth Amendment in respondent's deliberate indifference to petitioner's safety and the Seventh Circuit narrowly affirmed.

Because the District Court may have applied a stricter test than the one we adapt today, we vacate the decision below and remand for further proceedings.

Justice Blackmun and Justice Stevens have filed concurring opinions; Justice Thomas has filed an opinion concurring in the judgment.