Warren E. Burger: We will hear arguments next in Daniels against Williams. Mr. Saltzburg, you may proceed whenever you are ready.
Stephen Allan Saltzburg: Mr. Chief Justice, and may it please the Court: I must begin by confessing that the facts of this case are much less exciting than the two cases previously heard by the Court. Indeed, the facts are quite simple. A state prisoner in Virginia, a prisoner in the Richmond City Jail to be exact, filed a suit in Federal District Court alleging that he was injured while he was incarcerated in the Richmond City Jail. And, he alleged specifically that he slipped on a pillow which was on some newspapers on the stairs in the jail.
Warren E. Burger: So, it is a negligence case, is it?
Stephen Allan Saltzburg: Mr. Chief Justice, it sounds like a negligence case and both parties have treated it as such. The facts hardly look like facts that would support a federal action or a case that this Court should spend its time on, but, in fact, this case and these facts really are a messenger of major issue and how the Court decides that issue will be of great importance to everyone incarcerated in any jail or prison in any state in this country. And, that issue, simply put, is whether or not persons who are incarcerated have a right to be cared for, have their persons protected by those who have been entrusted with their safety.
Byron R. White: So, you think you are talking just about prisons?
Stephen Allan Saltzburg: Justice White, yes.
Byron R. White: All right.
Stephen Allan Saltzburg: Not only yes, but a very important part of our argument will be that the reason why we urge that there was a duty upon the state to provide some kind of compensation for a prisoner who can prove that he was, in fact, injured while in custody is that is part of the due process of law the person is entitled to when he is incarcerated as a person may be under the Thirteenth and Fourteenth Amendments. The Court of Appeals sitting en banc decided three questions, all adverse to the Petitioner. It decided by a five to four vote that this Court's decision in Parratt v. Taylor which had held that a prisoner could bring a suit seeking compensation for a negligent deprivation of property, as long as there was no meaningful state remedy, that Parratt did not apply to liberty interest, did not apply to injuries to the person, and that a prisoner had no right to sue in federal court for injuries to his person even if no state remedy were available. An unanimous Court of Appeals, nine-zero, held that Parratt... another holding, that the Parratt case ought to apply to liberty and property interests, meaning that even if it were wrong concerning protection of the person, that if a meaningful remedy were available in state court that for this kind of injury a prisoner could not sue in federal court under 1983. Finally, a six to three split on the court held that there was a meaningful remedy in state court. This afternoon I would like to concede at the outset one of the major points decided by the Court of Appeals. We do not quarrel with the holding of the Court of Appeals, the nine to nothing holding, which is Parratt applies in cases in which a prisoner is claiming that he was injured as a result of the tortious conduct of a safety officer while in custody and whether that tort is negligence or an intentional tort, not an independent violation of the Fourteenth Amendment. But, we concede that the Parratt reasoning ought to apply, if, indeed, a meaningful remedy were available in state court for this Petitioner, this Petitioner ought not to be able to proceed with the Section 1983 action.
Sandra Day O'Connor: Mr. Saltzburg, can you explain why you think the drafters of the Fourteenth Amendment were concerned with possible state law negligence actions by state officers?
Stephen Allan Saltzburg: Yes, Justice O'Connor. Perhaps I can explain or answer that best this way. The drafters of the Fourteenth Amendment and of the 1866 and 1871 Civil Rights statutes which enforced the Fourteenth Amendment plainly had in mind, as this Court has noted several times in the legislative history cited in Monroe v. Pape and Mitchum versus Foster, that one of the evils that gave rise to the Fourteenth Amendment and the Civil Rights statutes was the problem of law enforcement officers, sheriffs as well as courts, failing to do what was necessary to protect people in their--
Sandra Day O'Connor: Well, failing to act consciously by reference to the word "deprive", don't we have to look at that word in the clause and inquire whether the ordinary meaning of the word "deprive" means an intentional rather than a unintentional kind of an act or discrimination?
Stephen Allan Saltzburg: --Justice O'Connor, there are two answers that I would like to give you to that. One is the Court has looked at the meaning of the word v. Taylor and the majority of the Court, in Justice Rehnquist's opinion, said that in the context of a $23.50 hobby kit which had been lost that the prisoner was deprived of liberty within the meaning of the Fourteenth Amendment.
Harry A. Blackmun: By a negligent act?
Stephen Allan Saltzburg: By a negligent act.
Harry A. Blackmun: But, property, not liberty?
Stephen Allan Saltzburg: Yes, Justice Blackmun, that was a property case. Ours is a liberty case. In a moment I will argue liberty deserves as much protection as property. But, Justice O'Connor, there is also a second answer and I think that before the Court is an argument implicit, I suppose, in this case, but almost explicit, that maybe Parratt ought to be reconsidered. Maybe the Court should take another look. And, we had anticipated that and briefed it and I intend to argue that too, that even if the Court looks again, that Parratt was indeed correct. The first point that I would... There are three major points I would like to argue and that is, Justice Blackmun, as you said, the first point is that liberty interests deserve as much protection at least as property interests. The second point is that negligent deprivations should be deemed to be within Section 1983 when prisoners are in custody and in control of state officers. And, the third point is that there was no meaningful remedy within the meaning of Parratt and the Chief Justice's opinion for the Court in Hudson v. Palmer in Virginia state courts at the time this suit was filed. On the first point, whether liberty interests should be given as much protection as property interests, this argument... the argument I make is the one that I believe finds strong support in virtually everything this Court usually looks at in rendering decisions on the law, on constitutional law and the meaning of statutes. The history of the Civil Rights Statute is a history set forth at some length in Monroe versus Pape and Mitchum v. Foster and it is a history of a Congress concerned with the abuse of people. It is true that property sometimes was damaged when people were deprived of their rights, but it is a history that speaks eloquently about people. The language of the Civil Rights Act does not mention the word "property". It speaks about interest protected, the rights protected by the Constitution and laws of the United States. Even if the Court somehow were to want to draw a line between liberty and property, as the four dissenting judges said in the court below, surely the person would come out on top in any rational system. And, indeed, drawing the line between liberty and property is not only difficult, but it may be unnecessary in most cases. It is the deprivation of good time wrongfully, a deprivation of property or liberty. It is the failure to process properly a claim of employment discrimination which this Court has confronted. Is that a liberty claim or a property claim? Our point is it should not matter. Indeed, there is a tragic irony in the argument that was made by the majority of the Court of Appeals, an argument that is repeated by the Respondent in this case. Prior to the Civil War and prior to the Fourteenth Amendment, this Court was called upon to decide whether certain people and classes of people were people or property and the Court said property. A war was fought, an amendment was adopted, and statutes were enacted to correct that decision. And, now, the Court of Appeals has held that certain people don't even qualify even as property. They don't get as much protection. In our view, that decision flies in the face of the language of the statute. It ignores the decisions of this Court which has emphasized the history of that statute. It flies in the face of logic and it is wrong as a matter of law. That is the easiest point in our view that we have to make this afternoon. The second point is the more difficult one. It is made more difficult by the fact that in the case that follows this, the Solicitor General of the United States will argue to the Court that it should not only reconsider Parratt, but it should reject the holding of Parratt v. Taylor. Thus, Justice O'Connor, I would like to reach the question you asked which is was the Court correct when a majority of the justices in the Parratt case said that, indeed, a negligent deprivation could be a deprivation of property within the meaning of the Fourteenth Amendment, and, therefore, within the reach of Section 1983. It is not our contention that every state tort gives rise to a civil rights action under Section 1983. Were we to have to argue that, we could not win. Indeed, the end of the Parratt opinion contains a reference to an automobile accident involving a state officer and the same majority that had decided Parratt suggested that surely that alone could not warrant a suit under 1983. The Solicitor General would be right if, in fact, we were asking this Court to say every time there was an injury at the hands of a state officer that there had to be a remedy, a damage remedy. You would have to overrule every notion of sovereign immunity that has been in effect both before and after the Civil Rights law. We ask this and only this, that this Court recognize what it said in 1856 in South versus Maryland; that there has been a common-law duty on the part of officers into whose custody prisoners have been placed to protect. The officers have been held responsible in damages.
William H. Rehnquist: Well, that was in the days of Swift against Tyson, wasn't it? I mean South against Maryland really doesn't have any very direct application today.
Stephen Allan Saltzburg: No, Justice Rehnquist, you are correct. It was in the days... In a careful look at the opinion, one has difficulty knowing whether the Supreme Court was deciding as a matter of state law or federal common law. In dictum also, whether or not it is a statement about the liability of a sheriff was state or federal law. And, it is a pre-Fourteenth Amendment position. Our position is, however, that the Congress that was responsible for putting forth the Fourteenth Amendment and the Civil Rights law, that that Congress understood that for centuries sheriffs and law enforcement officers were responsible for persons placed in their custody. A decision had to be made--
John Paul Stevens: Mr. Saltzburg, can I ask this question that your argument prompts? Supposing... Assuming there is immunity for sovereign immunity of some kind for the officer as a matter of Virginia law here. Supposing there was a guest or a visitor in the prison who was with the prisoner and they both slipped on the pillow and were injured as a result of the guard's negligence. In your view, the prisoner would have a right because he is in his custody. What about the guest?
Stephen Allan Saltzburg: --Our position would be that the guest would not. And, indeed, that may seem to be an unjust result. Our position though is there is a difference between the guest and the prisoner in terms of freedom to make a choice, to enter or not enter. And, the prisoner has no such choice. And, Justice Stevens, the argument we make is premised on one inescapable fact which is after the Civil War the Reconstruction Congress had some choices it had to make. It had to make a decision on how much authority to leave with state courts, how much authority to vest in federal courts, what kinds of protections to give people. Now, it is possible--
William H. Rehnquist: Are you suggesting, Mr. Saltzburg, that the Fourteenth Amendment... the Due Process of the Fourteenth Amendment imposes more stringent restrictions upon states than the Due Process Clause of the Fifth Amendment does on the federal government?
Stephen Allan Saltzburg: --No, Justice Rehnquist, I am not.
William H. Rehnquist: Well, then, are you relying on anything other than the Due Process Clause of the Fourteenth Amendment here?
Stephen Allan Saltzburg: Due Process Clause plus the Civil Rights statutes which were enacted.
William H. Rehnquist: Now, let's break that down a minute. I understood your claim was brought under 1983.
Stephen Allan Saltzburg: Yes.
William H. Rehnquist: And, that the reason that you are suing is because 1983 gives you a right to recover for a violation of your constitutional rights. The violation of your constitutional right was a deprivation of liberty without due process of law.
Stephen Allan Saltzburg: Yes.
William H. Rehnquist: Well, why did the 1866 and 1871 statutes have anything to do with it?
Stephen Allan Saltzburg: Well, without those statutes and without a decision like Bivens versus United States, it wouldn't have been clear that a person could have sued in federal court even if his rights had been violated. What we ask the Court to look at is the entire body of legislation enacted following the Civil War.
William H. Rehnquist: But, all that does is get you into court, as I would say, to assert your constitutional claim. It doesn't define the limits of your constitution claim.
Stephen Allan Saltzburg: We don't quarrel with that, Justice Rehnquist. We agree with that.
William H. Rehnquist: Well, all the talk about Congress knew that keepers of prisoners had duties, how does that fit into your argument?
Stephen Allan Saltzburg: It does tie in, I hope, with the citation of South versus Maryland, which this Court said as a matter of... may have been federal common law. The assumption being that, in fact, sheriffs and jailers were responsible and suable for damages when they failed to protect persons in their custody. We ask this Court to reason from that. And, when Congress used similar language to that which was found in the Fifth Amendment and it used the board language, no state shall deprive a person of liberty, property, or life, that the Congress would not have intended to allow the states to escape the responsibility that they previously had in the state officers.
William H. Rehnquist: Well, would the same liability be here on a Bevins claim against a federal prison warden in the same situation here?
Stephen Allan Saltzburg: Yes, in the same situation--
William H. Rehnquist: But, South against Maryland wasn't speaking of federal officials, was it?
Stephen Allan Saltzburg: --No. But, I think it is undeniably our contention that some remedy is required for prisoners placed in federal custody and there is a failure to exercise due care to protect them. I would just note if I might in answering that question that it is not at all clear that anything in the Federal Tort Claims Act now would stand in the way of any remedy. The kinds of acts we are talking about, as we understand it, are remedial under the Federal Torts Claims Act and the arguments made which I really can't address in this case, but will be addressed in the next case concerning the implications for the federal system, I think, are probably exaggerated in the brief filed by the Solicitor General. But, it is our argument that a failure to protect those people who are incarcerated in the only lawful form of involuntary servitude and incarceration permitted by the Thirteenth Amendment, that part and parcel of the due process that they are entitled to is the protection of their safety.
John Paul Stevens: May I interrupt again? If I understood you correctly, you said they should not be deprived of the protection they previously had had. The assumption I was making is that as a matter of Virginia law the sovereign immunity defense protected both the prisoner and the guest before the 1983 was enacted, therefore, the effect of the statute as you construe it would be to give an extra protection to the prisoner that nobody else in the Commonwealth had.
Stephen Allan Saltzburg: Justice Stevens, it is probably the case that the prisoner was protected in the early 1800's under Virginia law and no one else was. There is a case cited by the majority of the Court of Appeals, an 1820's case, suggesting that the sheriff would be liable in a suit by the prisoner. The current state of Virginia law is probably that no one could recover in state court against the sheriff or the person who committed the tort. And, our argument is that part and parcel of due process when someone is incarcerated is that they be protected and they are entitled to a remedy. On the point of a remedy, I would like to be clear about this, we believe the remedy ought to be a state remedy. We do not argue to this Court... and we use the word "court" that there must be meaningful remedy in a state court. We use court in the broadest sense of the term. The court could be an administrative tribunal, it could be a workman's compensation court. The question we believe that Parratt properly phrased was whether there is a meaningful remedy that protects the prisoner's safety in the hands of state officials. And, the argument we make concerning the duty of the state, we believe, is supported by the language in the Screws case which was a criminal case which did impose an intent requirement and was properly distinguished, we believe, in Parratt. We would also cite--
Lewis F. Powell, Jr.: Mr. Saltzburg, before you go on, when you talk about a meaningful remedy, are you talking about the right to recover or the right to have access to the state court to present your case and take what defenses may be advanced as they come along? I think you are satisfied that sovereign immunity will be played in this case, but I would suppose in many cases the state would elect not to do it.
Stephen Allan Saltzburg: --Justice Powell, our position is as follows: That if... The state may have many defenses which do not... are not inconsistent with the notion of a meaningful remedy.
Lewis F. Powell, Jr.: Such as contributory negligence.
Stephen Allan Saltzburg: Which we concede, contributory negligence being one, the statute of limitations being another. If the prisoner is somehow at fault, fails to comply with the ordinary rules of procedure, we do not say that the state should not be able to close its doors whatever the tribunal. When it comes to sovereign immunity, our claim is merely this: If the state says you can sue but you cannot recover against anyone, that is not a meaningful remedy. There is a problem in this case and it is a problem I must own up to and that is the prisoner in this case did not file originally a state court action. He filed his suit in federal court and his explanation was he feared the sovereign immunity defense. Even in federal court the sovereign immunity defense was raised. The Court of Appeals explicitly asked both the Petitioner and Respondent, Petitioner would you go to state court if that defense were waived? The answer was yes. They asked Respondent, would you waive the defense? Respondent's position was we believe... even though we claim this defense, we believe this defense is made in good faith and can win in state court, there is still a meaningful remedy. We didn't file the state court action only to have them plead again to show that it would be pleaded. It was already before the Court of Appeals.
Sandra Day O'Connor: Mr. Saltzburg, you have probably already answered this adequately, but let me ask anyway whether, as far as you are concerned, it is clear that in Virginia the state law is such that a state officer sued in his individual capacity has an absolute defense based on sovereign immunity. You are satisfied that that is the case.
Stephen Allan Saltzburg: Justice O'Connor, you put it slightly more strongly than I would. If I can soften it to be as exact as I can, I am satisfied that current state of law in Virginia set forth in our brief, most particularly the Messina case, is that the Virginia Supreme Court has justified sovereign immunity on two grounds, one more recently than the other, both on protecting the public fisc, but more recently on the grounds that it is important to encourage people to be public officers and that, in fact, sheriffs repeatedly assert sovereign immunity defense and that there are not many reported decisions because the circuit courts in Virginia--
Sandra Day O'Connor: When sued in their individual capacities?
Stephen Allan Saltzburg: --Yes. And, that in this case I believe the record fairly shows, although there is no transcript available for oral argument, that in fact the Respondent wanted to adhere to that in any state court proceeding. We believe this case ought to be disposed of by the state. The most important thing I have to say this afternoon is that I do not represent a Petitioner who is asking the federal courts to throw open the doors to a host of suits. The argument that I make on behalf of this Petitioner is that there is protection of the person required under the Fourteenth Amendment that is enforceable by federal civil rights law and if, and only if the state fails to provide protection.
Sandra Day O'Connor: But, shouldn't the word "deprivation" have the same meaning regardless of the context in which the suit arises?
Stephen Allan Saltzburg: Justice O'Connor, the only answer I can make to that is if you accept, and you may not, but if you... If I can persuade you to accept the argument that part of due process when someone is incarcerated... Here is where the state does act intentionally, when it willfully, intentionally, and knowingly says we are going to take away your freedom and your ability to protect yourself. Part of the requirement of due process is that they supply the protection and in this context when they fail to do that for whatever reason believe that they, in fact, deprive a person of a right.
William H. Rehnquist: Would you say that is an intentional deprivation?
Stephen Allan Saltzburg: Justice Rehnquist, I argue especially in our reply brief... I believe that the line between negligence and intention is far more looser than Respondent in this case and in the case to follow would have the Court believe. If I might explain, plainly the state intends to incarcerate, plainly the state intends to have a prisoner do or not do certain things. I do not believe in this case there is an allegation that the defendant... Respondent intended to harm the Petitioner.
Warren E. Burger: If your client had been in a federal prison what would be the situation with exactly the same facts?
Stephen Allan Saltzburg: It is my understanding, Mr. Chief Justice, he would sue under the Federal Tort Claims Act where he would have a claim. If he did not have one there--
Warren E. Burger: I didn't get what you said. You could sue, of course.
Stephen Allan Saltzburg: --Under the Federal Tort Claims Act.
Warren E. Burger: What about the governmental function and discretionary--
Stephen Allan Saltzburg: It is inconceivable that anyone would argue, I think, under the Federal Tort Claims Act that the person who leaves a pillow on the stairs is exercising a discretionary, a judgmental function.
Warren E. Burger: --The function of a prison is a discretionary function, isn't it, a governmental function?
Stephen Allan Saltzburg: Certain aspects surely are. And, if part of the question is could the warden be sued or could the director or superintendent of the prison be sued, our answer is no. We do not ask to have that part of sovereign immunity declared to be invalid.
Warren E. Burger: In short, would you or would you not have a remedy if you were in federal prison?
Stephen Allan Saltzburg: I believe that we would under the Federal Tort Claims Act. If we did not--
Warren E. Burger: That would be contrary to quite a few holdings of this Court, wouldn't it, on discretionary function?
Stephen Allan Saltzburg: --I hope not. But, if we didn't, if we didn't, and, if, in fact, the simple negligence of a federal prison guard caused injury, perhaps death, to a federal prisoner and if it were held that the Federal Tort Claims Act didn't allow suit, we would then say that, in fact, under Bivens that person could come in and ask the court to protect his due process rights under the Fifth Amendment.
William H. Rehnquist: Mr. Saltzburg, a moment ago in answering the Chief Justice's question you said you don't ask to have the federal sovereign immunity declared invalid. I take it you are not asking to have the state sovereign immunity declared invalid either. If Virginia chooses to retain sovereign immunity, then these people have their cases tried in the federal district court.
Stephen Allan Saltzburg: That is exactly right, Justice Rehnquist. And, it is not a happy result for us. We believe these cases belong in state court. There is a state Tort Claims Act that took effect on June 1, 1982. It does not apply in this case. However, it was enacted after Parratt, perhaps in response to Parratt. It remains on the books as long as Parratt remains on the books. It does not apply in cases in which a prisoner asks for more than $25,000. The statute keeps all--
William H. Rehnquist: Does it have a repealer clause in case Parratt is overruled?
Stephen Allan Saltzburg: --No, sir, it does not.
John Paul Stevens: May I ask you if you would characterize your due process claim in this case as a procedural due process claim or a substantive due process claim?
Stephen Allan Saltzburg: I think the proper characterization of it, Justice Stevens... and I hesitate before answering... is more in the nature of substantive due process despite by hesitancy in light of the attack made by the Solicitor General in the next case. I hesitate but I do not back away from that statement.
John Paul Stevens: I think that is the thrust of your argument.
Stephen Allan Saltzburg: It is our contention that the Solicitor General must prevail, must, if the only way our Petitioner could win the case is for the Court to hold that every state tort is a 1983 tort.
Sandra Day O'Connor: Mr. Saltzburg, if the Court were to hold that negligent infliction of harm to a prisoner by a state official does state a claim, how would you propose to handle defenses for qualified immunity? Is inadvertence always a defense? Would it ever be a defense? How do you handle it?
Stephen Allan Saltzburg: Justice O'Connor, we conceded that a qualified immunity, such as this Court has already held under 1983, is adequate. It would clearly, if applied by state in its own tort system, if adequate for federal purposes, it certainly would not be a denial of a meaningful remedy. And, we think that takes care of a lot of the problems of anticipating decisions, the failure to anticipate decisions before they are announced.
Sandra Day O'Connor: So, it could always be a defense in state law?
Stephen Allan Saltzburg: Yes. And, in fact, if that were the only defense, both a state tort claim and a 1983 suit in state court could be brought together and the same defense would apply to both. May I reserve the remaining time for rebuttal?
Byron R. White: Negligence would... There wouldn't be many occasions where the defense would apply in the negligence section.
Stephen Allan Saltzburg: Justice white, very few... The cases where it does apply are cases in which after the Court clearly announces a decision such as you must do this to conform to the due process clause, someone doesn't know about it but should have known. That is probably the only case.
Warren E. Burger: Mr. Hopper?
James Walter Hopper: Mr. Chief Justice, and may it please the Court: This is a garden variety slip and fall case, a common law tort. It occurred in a jail and it caused bodily injury to a prisoner. It was said to have occurred due to the simple negligence of a deputy sheriff leaving a pillow and some newspapers on the stairs used by the prisoner. We wish today to address by way of argument two points. Our first point is that an act of simple negligence by a deputy sheriff causing unintended bodily injury should not constitute a deprivation of liberty in the constitutional sense. Our second point is that even if an act of simple negligence constitutes a deprivation in the constitutional sense, a state law defense such as the defense of sovereign immunity, does not violate due process when it operates to preclude recovery. We believe that the Petitioner here has assumed that as a prisoner his interest in freedom from personal injury is a liberty interest that is protected by the Due Process Clause and we believe that this assumption of his is based largely upon the fact of his incarceration. As a result of his incarceration, he believes that a special duty is owed to him to keep him absolutely free of tortious injury. He argues that an act of simple negligence by a deputy sheriff in this case constitutes a deprivation of this liberty interest and he argues that there is, in fact, an absolute state defense of sovereign immunity such that no state recovery would be allowed, therefore, he has concluded that this deprivation has occurred without due process of law. We submit that if the Petitioner's basic argument is accepted, almost any negligent tort that is committed by a guard or a deputy sheriff, depending on the availability of a state tort remedy, could be considered a deprivation of a liberty interest without due process of law. For example, if a prison guard or a deputy sheriff could have an automobile accident resulting from his simple negligence when he is taking a prisoner to or from court for a hearing, if an injury has occurred to that prisoner and there is no adequate state remedy, then it can be said that a deprivation of a liberty interest has occurred in that set of facts.
John Paul Stevens: May I ask whether there is an adequate state remedy in your hypothetical?
James Walter Hopper: Justice Stevens, I am assuming in the hypothetical I just proposed that there would not be a state remedy.
John Paul Stevens: You are just assuming it for the hypothetical. You know what the law is in Virginia though? I mean, in most of these cases, is there or is there not a sovereign immunity defense is what I am trying to figure out.
James Walter Hopper: Justice Stevens, with respect, the law in Virginia is not clear as to this particular, unique government official, a deputy sheriff, and it is subject to constant review by the courts of record in the Commonwealth.
Byron R. White: What did the Court of Appeals say?
James Walter Hopper: Justice White, the Court of Appeals said that they thought that sovereign immunity defense had no part in this case.
Byron R. White: And, it was not available in Virginia.
James Walter Hopper: And that it was not available.
Byron R. White: Why shouldn't we take that as the law of Virginia?
James Walter Hopper: With respect, Justice White, the case relied on by the Fourth Circuit was an 1826 case.
Byron R. White: Well, you suggest we should just say the Court of Appeals didn't understand Virginia law.
James Walter Hopper: With respect, Justice White, yes.
Byron R. White: Yes. Aren't they more likely to understand Virginia law than we are? Several of them are Virginia lawyers, aren't they?
James Walter Hopper: With respect, Justice Rehnquist, they ought to. I do not agree with their conclusion in this case, however. If I may, the reason I do not agree is because, again, they relied on an 1826 case. Sovereign immunity was not recognized by the Virginia Supreme Court until 1839, it was not then further developed until 1849. Therefore, the case that the Fourth Circuit has relied upon, I would submit, arose prior to sovereign immunity ever even being discussed within the Commonwealth of Virginia.
Byron R. White: So, sovereign immunity in Virginia now exists only to the extent it has been declared and it has never been declared with respect to a prison guard.
James Walter Hopper: Justice White, that is correct. Petitioner urges--
Byron R. White: I would suggest the inference is the Court of Appeals was quite correct then.
James Walter Hopper: --Respectfully, Justice White, I do not agree with the Court of Appeals.
Byron R. White: I know, but what... They have said we never had sovereign immunity until now and now we are going to have it here, there, but they have never said about this case.
James Walter Hopper: That is correct.
Byron R. White: They have never touched on this case.
James Walter Hopper: That is correct, Justice White. The highest court of the Commonwealth of Virginia has not spoken.
Byron R. White: How about the lower courts?
James Walter Hopper: There are numerous circuit courts of the Commonwealth of Virginia, Justice White, which deal with this issue.
Byron R. White: And say that there is sovereign immunity.
James Walter Hopper: Justice White, with respect, they are divided and the reason they are divided is because the court of record in the Commonwealth of Virginia engages in a determination of whether the act being performed is discretionary or ministerial. The Petition in this case, however, urges that a special duty is owed to prisoners because they are in the complete control of the state and he argues here perhaps that the prisoner had no choice but to go down the stairs upon which he fell.
William H. Rehnquist: Mr. Hopper, let me interrupt you and get back for a moment... I fear I may be confused. I thought that the Court of Appeals held that there was an adequate remedy under Virginia law. Am I wrong in that?
James Walter Hopper: No, Justice Rehnquist, you are not wrong. They did hold that there was an adequate remedy under Virginia law.
William H. Rehnquist: And, you are here now saying there isn't an adequate remedy under Virginia law?
James Walter Hopper: No, Justice Rehnquist, I am saying that there is an adequate remedy under Virginia law.
William H. Rehnquist: Then how do you differ from the Court of Appeals with respect to the adequacy of the Virginia remedy?
James Walter Hopper: I do not, Justice Rehnquist, differ with the Court of Appeals on the adequacy of the Virginia remedy. I differ only with the Court of Appeals on whether sovereign immunity applies to this particular officer.
Byron R. White: You would say that it was an adequate remedy even though sovereign immunity is available.
James Walter Hopper: Justice White, yes, it would be my--
Byron R. White: I know, but that certainly isn't the thrust of the Court of Appeals.
James Walter Hopper: --I understand that, Justice White. Again, referring to the example that Justice Stevens alluded to earlier, where is the difference if an individual comes to the very same jail where this Petitioner was housed and he had to go see the Petitioner on a cold and icy day in January? The jail only has one entrance which has a number of steps to it. Let's suppose in this hypothetical that the deputy sheriff who is in charge of the outside of this jail is charged with various duties including... various duties which would include keeping ice and snow from the steps and this visitor, although not with the prisoner, is coming to see the prisoner, slips on these steps and has bodily injury as a result of the negligence of the deputy sheriff. This visitor is then confronted with the identical sovereign immunity defense that we have here. The only apparent difference in the status of the case is the status of the individuals. Yet, under Petitioner's theory, one must conclude that the visitor would have no remedy, either in the federal or the state courts because of the operation of sovereign immunity.
Thurgood Marshall: As I understand the difference is that he was a voluntary visitor.
James Walter Hopper: Justice Marshall, that is what the Petitioner has just said, yes, sir.
Thurgood Marshall: The Petitioner was a voluntary visitor?
James Walter Hopper: No, sir. The visitor would be a voluntary visitor.
Thurgood Marshall: Yes, but the prisoner wouldn't be. That is the difference.
James Walter Hopper: Justice Marshall, that is correct. That is what he says.
Thurgood Marshall: That is the difference.
James Walter Hopper: That is correct. Petitioner argues that the Due Process Clause though is not violated the moment that the tortious injury occurs. He says that his now may be a substantive due process claim. Yet he has said in his petition that the due process rights are not violated until there is no state remedy available to him. Yet surely I think we would all have to agree that this injury could not have been inflicted by the deputy sheriff on the Petitioner even if a pre-deprivation hearing were held, simply because no process would ever justify inflicting an injury on anyone's person. The fact of the hearing or the lack thereof does not affect this injury. Petitioner's basic position, we believe then, is really that his loss should not go without compensation. In essence, he argues for the best of all possible worlds. Unfortunately, in Virginia, it is not the best of all possible worlds. There are not only the sovereign immunity defense, but other official immunity defenses such as prosecutorial, judicial, witness, parole board, legislative immunities. Therefore, citizens in the Commonwealth of Virginia may be injured by the actions of governmental officials but do not always have a tort remedy available to them against either the official or the government which he represents in Virginia. As I mentioned earlier, sovereign immunity was not recognized in Virginia until 1839. The Virginia Tort Claims Act, however, did not become effective until July 1, 1982. The Tort Claims Act, however, does not do away with the immunity of local government or local governments' employees. Consequently, the Petitioner is not unique in Virginia in suffering injury at the hands of government or local government and being without a tort remedy. In fact, individuals who have been injured by government negligence have suffered injuries at least equal to and sometimes greater than that of the Petitioner. Examples are readily found on pages 32 and 33 of the Petitioner's brief. Messina versus Burden interestingly enough was a slip and fall case on some steps of a community college in Virginia. Hinchey versus Ogden represents the other end of the extreme where the plaintiff lost a leg and part of her buttocks. In both of these cases, however, the plaintiff was without any remedy in state law at all because of the operation of the doctrine of sovereign immunity. We don't think that predicaments like these or that of the Petitioner's have breached anything found in the Constitution. It has been held that when a state law creates a cause of action and the state is free to define the defenses for that claim, including the defense of immunity, unless the state law is in conflict with the federal law.
William H. Rehnquist: Well, Mr. Hopper, supposing in this case instead of the Petitioner slipping going down the stairs the trustee or deputy had intentionally shoved him down the stairs intending to injure him. Would you say that that was a federal constitutional violation?
James Walter Hopper: Justice Rehnquist, would I also have to assume... respectfully have to assume in the hypothetical that the deputy was in a position to prevent that injury?
William H. Rehnquist: Well, I suppose you can always prevent yourself from intentionally shoving somebody else down the stairs.
James Walter Hopper: I am sorry, Justice Rehnquist, I understood you to say a trustee which meant to me another inmate.
William H. Rehnquist: Let's say a guard, a guard.
James Walter Hopper: All right, sir. If a guard were to intentionally push the plaintiff down the stairs--
William H. Rehnquist: Yes.
James Walter Hopper: --that is a closer question, Justice Rehnquist, and may well create a constitutional deprivation in a constitutional sense because of the intentional act of the deputy sheriff or guard.
Byron R. White: Can you just say that it would?
James Walter Hopper: There again, Justice White, if it is--
Warren E. Burger: Aren't intentional torts distinguished from negligence for a great many reasons?
James Walter Hopper: --Yes, Chief Justice Burger, they are. And, if this were an intentional tort, then--
Warren E. Burger: That could be an assault and battery, pushing someone down the stairs.
James Walter Hopper: --That is correct, Chief Justice Burger. In addition to--
Warren E. Burger: It is quite different from ordinary negligence, isn't it?
James Walter Hopper: --That is correct, Chief Justice Burger. And, in addition, there would be a remedy under Virginia law; I think, both tort and criminal law, in that hypothetical.
Warren E. Burger: Would you raise your voice a little bit, Mr. Hopper?
James Walter Hopper: Yes, sir. I beg your pardon.
Warren E. Burger: I am not sure our microphones are working well. How about gross negligence or reckless conduct?
James Walter Hopper: Justice O'Connor, again the question becomes closer as you get into gross negligence. In gross negligence, there is a reckless disregard by the actor. We are in a position of conceding that the degree of gross negligence may well give rise to a constitutional deprivation.
John Paul Stevens: Would you just explain to me why, if we focus on the word "deprivation" just for a moment, why the mental state of the person who does the depriving has anything to do with whether a deprivation occurred? Say you talk about deprivation of life and some guy gets wrongfully executed. Would it make much difference whether it was done deliberately or they just had a misidentification by mistake? Wouldn't it equally be a deprivation of life?
James Walter Hopper: Justice Stevens, yes, it would be a deprivation of life in that kind of--
John Paul Stevens: Even if it was negligent?
James Walter Hopper: --Justice Stevens, I would... The only guidance that I have in answering that question would be Parratt versus Taylor and Parratt versus Taylor has contradictory language but would seem to indicate that that negligent act would constitute a deprivation at least so far as--
John Paul Stevens: Well, if it is on life and property, why is it different on liberty?
James Walter Hopper: --Justice Stevens, intellectually it should not be different. However, as Justice O'Connor has pointed out, the word 1983 and the Due Process Clause and we believe that in the due process sense, the Due Process Clause, it should be limited to the deliberate actions of state officials which are designed to take away those constitutional interests, simply because historically the guarantee of due process has been applied only to the deliberate decisions of government to consciously take away life, liberty, or property. Surely is our position that the framers of the Fourteenth Amendment left room in the Due Process Clause to recognize that government must conduct its affairs for the benefit of the general population through people. Those people will occasionally commit error as human beings. Otherwise--
Warren E. Burger: Let's pursue that business of intention a bit. An act of negligence occurs in not keeping the floors safe or the stairways safe as compared with the situation of a guard assaulting the person. One is within the scope of employment and hitting somebody over the head with a bat or club is not within the scope of employment. Doesn't that afford a basis for a difference in the two?
James Walter Hopper: --Mr. Chief Justice, logically it may, but Monroe versus Pape was dealing with that same type of situation where, I believe, the argument was that those officers were acting outside the scope of their authority. But, for the purposes of state action, it was held that they were within the scope of their authority. The suggestion that you make in the due process sense may well provide a bright line or a clear division to view a "deprivation" in the constitutional sense. If we may now turn to our second point, that is even if an act of simple negligence by a deputy sheriff constitutes a deprivation in the constitutional sense, then the sovereign immunity defense does not violate due process when it precludes recovery. On this point, we have some difficulty speaking on behalf of the Commonwealth as to her rationale for not providing an opportunity to this plaintiff to receive money damages simply because of the status of the deputy sheriff. He is neither a state employee nor is he a government employee, he is simply a deputy... a constitutional officer under the Virginia Constitution and the Virginia Code. His position is funded by a formula of both state and local funds. The Virginia Tort Claims Act does not apply to him, nor is he afforded representation by the state Attorney General's office. Similarly, the municipality does not exercise any control over him and he is not offered representation by the city attorney's office. On the other hand, if he were a local government employee, he would be not covered by the Tort Claims Act, however, he would be extended sovereign immunity for simple acts of negligence while performing discretionary functions. As I mentioned earlier, the deputy sheriff in Virginia occupies an unique position as a public official in Virginia's scheme of government. Several of the courts of the Commonwealth, the courts of record, have extended to him the defense of sovereign immunity for acts of simple negligence while performing discretionary functions. On the other hand, he has also been denied such a defense by several of the other courts of the Commonwealth depending on what the court considers to be a discretionary function. Here, the Petitioner maintains that the sovereign immunity defense is absolute and that it will bar any action brought in the state court. He argues that the state has created a system of civil compensation for tort victims. In this case, however, the state does not provide him with compensation for his particular injury. He says without an opportunity to be heard on the merits of his claim in state court, he has been deprived of his liberty without due process of law. In the best of all possible worlds, the Petitioner's loss probably should not go without compensation. However, should the Respondent prevail in the state court on the defense of sovereign immunity, he will not receive compensation for his injury.
William H. Rehnquist: Mr. Hopper, tell me once more what your position here is about the availability of sovereign immunity in the event the Petitioner were to bring his case in Virginia. The Court of Appeals said that there would be no sovereign immunity. Your position is what?
James Walter Hopper: My position, Justice Rehnquist, is that there would be sovereign immunity because this individual was performing discretionary acts and an act of alleged simple negligence is alleged against him while performing those discretionary acts.
Harry A. Blackmun: And, what precisely is the discretionary act, not cleaning the stairwell?
James Walter Hopper: That is correct, Justice Blackmun, not taking the pillow or the newspapers from the stairway.
Harry A. Blackmun: I am going to remember that at home. [Laughter]
James Walter Hopper: It has never been the law, we believe, that a state violates due process whenever it makes available substantive or procedural rules of tort law which on occasion preclude individuals from obtaining relief for certain injuries caused by state actors. The states have been permitted to erect reasonable, procedural requirements for triggering the right of adjudication such as statutes of limitations and filing fees. It is only--
John Paul Stevens: May I give you one other hypothetical that occurs to me as a result of Justice Rehnquist's question. Supposing your sovereign immunity doctrine were much clearer than it is. You had a black and white rule, the state has waived sovereign immunity in all cases except when a prisoner litigates. Would you think that would stand up, because we don't like suits by prisoners, they are mostly harassing, you know, they waste a lot of time.
James Walter Hopper: --Justice Stevens, in answer to your question, I think that we would have to determine whether that decision was wholly arbitrary or irrational.
John Paul Stevens: It surely wouldn't be wholly irrational. It would save the Commonwealth a lot of money.
James Walter Hopper: We would have to weigh then a balancing, if you will, of the private interest against the public interest and the public interest of maintaining orderly administration of its jails and prisons may very well outweigh the interest of the prisoner to bring a suit in the courts of the Commonwealth and receive compensation for that. I cannot give you a blanket answer because I think that it would depend--
John Paul Stevens: It would clearly prevail on your... If your first argument is right, you would still definitely win because it doesn't come in. I am just wondering how your second argument would treat that kind of case.
James Walter Hopper: --The second argument being a balancing of the governmental interest, Justice Stevens in your hypothetical?
John Paul Stevens: Well, your argument, as I understand it, is, first, there is no deprivation of liberty because it is a negligence case. If you win on that, you win no matter what the sovereign immunity situation is. Your second argument is that in all events there has been no deprivation of due process because he has the same rights as other citizens and sovereign immunity is just something all citizens have to confront. Then I am saying what if all citizens don't have to confront it, just prisoners, then I am just wondering whether you would still say there was no denial of due process.
James Walter Hopper: Justice Stevens, I would come down on the side that there would be no denial of due process assuming that there was a wholly rational and not arbitrary reason for that.
John Paul Stevens: Reason for that.
James Walter Hopper: And, the legislature would make that determination at some point in its deliberations. In the recent case, however, of Messina versus Burden, the Virginia Supreme Court has stated that sovereign immunity serves a multitude of government interest in this case and these include not only those that Petitioner alluded to earlier, which was protecting the public purse, but a number of others, among which were eliminating public inconvenience and danger that might spring from officials being fearful to act, assuring that citizens would be willing to take public jobs and also preventing citizens from improperly influencing the conduct of governmental affairs through threat or the use of vexatious litigations. The Virginia court has also noted that government can only function through servants such as this deputy sheriff and that certain of those servants much enjoy the same immunity in the performance of those discretionary functions as the government enjoys. Given the continued validity of the sovereign immunity doctrine in Virginia, the Virginia Supreme Court has acknowledged that it must continue to engage in a very difficult task of deciding which government employees are entitled to immunity based on the nature of their acts, either discretionary or ministerial, on a case-by-case basis. Such rationale, we believe, reflects what Virginia considers to be some of the important purposes of the immunity defense which benefits society as a whole in Virginia. The balance of state and private interests favors the government's interest in this sense and it is rashly related to a legitimate state interest, that of jail or prison administration in this particular instance. It has been held that immunity rules do not in and of themselves deny due process. We believe that such rules do not deny process simply by limiting the state remedy available to this Petitioner. We believe that to agree with Petitioner that his procedural due process rights have been violated by the immunity defense would result in common law torts becoming Section 1983 cases in the federal courts. The constitutional question then is whether state procedures, including sovereign immunity defenses, provide the Petitioner with the process required under the Due Process Clause. We urge this Court to conclude that Virginia's procedures in this case do, in fact, comply with the Due Process Clause. Thank you.
Warren E. Burger: Do you have anything further, Mr. Saltzburg?
Stephen Allan Saltzburg: Mr. Chief Justice, yes. I would like to answer a question Justice White posed with respect to the opinion of the Court of Appeals with respect to state sovereign immunity. It is true, Justice White, that a majority of six of the Court of Appeals expressed the view that there were several Virginia Supreme Court cases which would suggest that there wouldn't be sovereign immunity. It is also true that Respondent's position was and is that there is sovereign immunity in this case. An assistant attorney general, arguing companion cases which were argued together with this and questions were put, indicated that he supported the view there was sovereign immunity.
Byron R. White: Well, I know, but as between the Court of Appeals and the Attorney General of the Commonwealth, whose words do we take?
Stephen Allan Saltzburg: Well, Justice White, we believe--
Byron R. White: It might have been a professor from the Virginia Law School.
Stephen Allan Saltzburg: --Surely the Attorney General of Virginia above me and the Court of Appeals, of course, but our position is... and I didn't want this to be missed... that it is not a meaningful remedy in a suit where in a state like Virginia in order to litigate this this prisoner would have had to go to state court, might never have gotten a final resolution. This has gone to a jury, traditional jury trial in the circuit court of Virginia. A general verdict might never have declared whether there was or was not sovereign immunity. If the Virginia Supreme Court did not review this case, and it reviews very few as this Court probably knows, there would not be an answer.
William H. Rehnquist: Well, you have got a Virginia intermediate Court of Appeals knows that presumably review more cases.
Stephen Allan Saltzburg: That is correct, Justice Rehnquist, but it did not exist at this time and there was no right of review for this prisoner. And, the question we put to this Court is whether it is truly a meaningful remedy when the Petitioner judges that the sovereign immunity defense is likely to succeed, the Respondent believes it will succeed, his counsel believes it will succeed, he so represents to the court--
Byron R. White: And then it does, and then it does succeed in the state court, so it hasn't been a meaningful remedy, then you are around the mulberry bush again.
Stephen Allan Saltzburg: --Yes, Justice White, maybe. If, in fact, this prisoner is allowed to file in federal court and keep a federal suit alive. Under Tamoneo we might lose under the statute of limitations. Our position is that is a bad way to run a state court system and a federal system. It delays recovery, it delays the protection for the prisoner perhaps for a very long time. If that is meaningful, then we will lose. The last point, Mr. Chief Justice, is that the Martinez case is cited a great length in the brief, although not here in the argument. This Court carefully left open in Martinez the question of what kind of immunity would be recognized for 1983 purposes. It did not, as suggested in the brief, say that state immunity would automatically be accepted if they were rational. Left it open and said that is a question we will address another day. That question is now here. The last thing I would say is this case may boil down to this and when the Court judges first question put by Respondent as to what the intent of the Congress was when it enacted Section 1983. His position is that if a prisoner in the custody of a sheriff were negligently stolen away and lynched, there would have been no remedy in a federal court even after the state courts' doors were closed. Our position is that that is wrong.
Lewis F. Powell, Jr.: May I just ask this question, Mr. Saltzburg? Someone mentioned what would be the situation if a prisoner were being transported and had an automobile accident as a result of his negligence. Assume, for example, that this deputy sheriff was transporting your client in this case down to federal court to testify in a case and did have an automobile accident and was charged with negligence. I suppose your position would be the same, would it? Would you view that as identical to being in jail?
Stephen Allan Saltzburg: Yes, Justice Powell. My time is up. Might I answer that with another sentence?
Lewis F. Powell, Jr.: Yes.
Stephen Allan Saltzburg: Our position is in that specific fact situation, yes, he should be able to sue under 1983. It would be possible, however, for the court to say that where a prisoner avails himself of benefits that are not imposed upon him, for example, educational benefits and certain medical benefits, that he knowingly chooses to avail himself of that are not imposed upon him against his will, that simple negligence in that context ought to be no different from negligence for any other person. It is not in this case.
Lewis F. Powell, Jr.: If the prisoner were being taken to his doctor's office.
Stephen Allan Saltzburg: At his request for special medical treatment?
Lewis F. Powell, Jr.: Yes.
Stephen Allan Saltzburg: It might very well make a difference.
Lewis F. Powell, Jr.: It might make a difference.
Stephen Allan Saltzburg: Thank you.
Warren E. Burger: Thank you, gentlemen. The case is submitted.