Earl Warren: Number 293, Robert Eli Stanley versus Georgia.
Wesley R. Asinof: May it please the Court. I would like to request the marshal to notify me when 25 minutes is up, I'd like to save five minutes for rebuttal, if I may.
Earl Warren: You'll find a white light to come up in front of you. That would be the five-minute warning.
Wesley R. Asinof: Thank you.
Earl Warren: Mr. Asinof, you may proceed with your argument.
Wesley R. Asinof: Thank you. Mr. Chief Justice and members of the Court, this case involves the constitutionality of the Georgia obscenity statute. The questions raised by this appeal, in so far as the constitutionality of the statutes is concerned, are two-fold. First, we raise the question that the statute violates the First Amendment because it punishes the mere possession of obscene material without requiring any further overt act on the part of the possessor or intent to do anything with it.
William O. Douglas: What kind of possession was this?
Wesley R. Asinof: This was a possession, if Your Honor please, where Robert Eli Stanley had possession of three reels of motion picture film in a desk drawer of his upstairs bedroom of his home. There was no allegation in the indictment of any showing or attempt to exhibit or show these films or pander them or show them to minors. The only question involved in so far as the indictment was concerned was that he possessed them knowing them to have been obscene or that he should reasonably have known them to have been obscene. The second question of our constitutional attack on this statute is the use of the language in the statute and in the indictment to the effect that he reasonably should have known of the obscene nature of the film removes the element of scienter from the definition of the offense. And thus, permits the state to secure a conviction for possessing these films on a showing less than actual knowledge on his part that they were obscene.
William O. Douglas: Are they concededly obscene?
Wesley R. Asinof: We do not concede them to be obscene and if we took that position with the trial court that under the First Amendment in so far as possession itself is concerned that there is no such thing as obscenity. The reason we took that position and now take this position is this, that it would be a violation of the Freedom of Press Clause of the First Amendment to restrict a person or to prohibit a person from possessing anything they want in so far as its claim of obscenity is concerned. We take the position that where a person merely possesses an article alleged to be obscene and does not attempt to distribute it or show it to any other persons, as was the case in this case and as was the indictment in this case and as with the holding by Supreme Court that the mere possession is an offense under the definition Georgia law that any evidence in the case on the part of the state or any contention on the part of the state to the effect that the evidence might have circumstantially show that he was about to have a party and about to show these films to other persons would be completely irrelevant for this Court to consider. It has no relevancy here because of the fact that he was only charged with the mere possession. Now, to my knowledge, this exact question has never been passed upon by this Court. The question of whether or not a person can be prohibited by the states from merely possessing obscene material or obscene writings or pictures. Clearly, it would seem to me that the mere possession, that anyone would have the right to say draw a picture which might obviously be obscene to some other persons and put it in his pocket or put it in his desk drawer. Or if he wanted to take a picture of himself or picture of himself and his wife in a sexual act that this would be a matter that he could determine as long he did not attempt to pander this material, attempt to sell it, distribute it, or distribute it to minors.
William J. Brennan, Jr.: I suppose when these films were in a desk drawer, weren't they?
Wesley R. Asinof: These films were in a desk drawer. These of course --
William J. Brennan, Jr.: And could be as looking at the film, he couldn't tell it were?
Wesley R. Asinof: Could not.
William J. Brennan, Jr.: Now, what did the officers do?
Wesley R. Asinof: The officers and this is -- I might as well mention this at the outset right here. The second part of our contention is, the officers were armed. They were federal and state officers, were armed with a federal search issued by United States Commissioner on a claim that the defendant was violating the Wagering Tax Act.
Thurgood Marshall: The what?
Thurgood Marshall: The Wagering Tax Act.
Wesley R. Asinof: Since then, of course, this Court has held that the provisions of that law are constitutionally impermissible.
William J. Brennan, Jr.: Well, I'm trying to get to this.Did the officers use a projector to see the films?
Wesley R. Asinof: Yes, yes, yes. This --
William J. Brennan, Jr.: Then and there?
Wesley R. Asinof: Yes sir, then and there. They went in on with the search warrant issued by the United States Commission which did not call for the seizure of any obscene film but call for the seizure of gambling paraphernalia. No gambling paraphernalia was seized except some negligible things that I think the state concedes were not sufficient but during their search, they search through his drawer and found three cans of films, eight-millimeter film which they testified, they could not discern or know from their own knowledge that it was or what it was. So they found in the closet a projector and they found a screen and they showed these films, and looked at them and --
Byron R. White: They set up the screen?
Wesley R. Asinof: Then they set up the screen and they showed them.
Byron R. White: Is there any conceivable circumstances in which if you saw the film that it could possibly be connected with gambling paraphernalia?
Wesley R. Asinof: I would think not. I would not think not. I wouldn't know that there was any connection between them but what happened after they showed these films not having a warrant to seize the films. The evidence shows in the case and in the record that the officer, the state officer called the Solicitor General who was the prosecuting officer for that circuit and told him they didn't find gambling paraphernalia but that they did find some films and it's in the record that Solicitor General then stated to him, “after you view the films, if in your opinion they are obscene, seize the films and book a case, and I'll set a bond.”
William J. Brennan, Jr.: Well, tell me, suppose instead of these films, they found counterfeit bills, couldn't this fellow have been prosecuted for possession of counterfeit bills?
Wesley R. Asinof: I think so.
William J. Brennan, Jr.: How do you distinguish it?
Wesley R. Asinof: I distinguish that and I concede that where evidence is seized or when a contraband is seized where it's not such as would be subject to a claim of the First Amendment, freedom of press or freedom of speech that the states do have the right to prohibit the possession.
William J. Brennan, Jr.: I take it Harris, -- with Harris --
Wesley R. Asinof: Yes. -- that is counterfeit money.
Wesley R. Asinof: Yes sir. I think any case. Now, we concede that in our brief and make that distinction that in this particular case, these were films alleged to be obscene from the very start. They weren't seized as gambling paraphernalia but they were seized under a warrant issued by United States Commissioner under the Wagering Tax Act, under a contention that the defendant had not registered as a gambler.
William O. Douglas: Was this man a merchant or distributor of any kind?
Wesley R. Asinof: No sir. He was not. There was no claim of any distributorship. He was an individual in his own home. The state of course alleged and contended that he had a record for gambling in the past and that federal agents, the state agents, were going in for that purpose, that they had probable cause. One of the contentions in the affidavit being that he had not registered as a gambler and paid his tax which of course since then in Grosso and Marchetti, this case has --
William J. Brennan, Jr.: In the prosecution and the actual trial for possession of these films, was there any effort -- would this prove that the possession of the films was for the purpose of sale?
Wesley R. Asinof: No, sir.
William J. Brennan, Jr.: It was just naked possession of the film.
Wesley R. Asinof: This is the --
Thurgood Marshall: There was one -- there was one other point. There were biscuits in the kitchen.
Wesley R. Asinof: This was brought up in the brief to this Court, that there were biscuits being ready to put in the stove, that there were well-dressed people who came to the house, that this man was a bachelor and his girlfriend had come there and that the officers had turn them away. They said that the table was set for eight people. It looked they were fixing to have supper, getting ready to have supper and for this reason they said that apparently, he was going to have a party. This was the conte -- this is now the contention raised by the state. But I want to call the Court's attention to this that --
Hugo L. Black: Where was that?
Wesley R. Asinof: Sir?
Hugo L. Black: Where was that in Georgia?
Wesley R. Asinof: In Atlanta. The --
William J. Brennan, Jr.: Was there any claim that this party was going to include the showing of these films.
Wesley R. Asinof: That's what they claimed. They claimed circumstantially. There's no evidence of that law. The defendant denied knowing anything about the film.
William J. Brennan, Jr.: Well, as I understood you to say, neither screen nor projector was set up.
Wesley R. Asinof: That's right.
William J. Brennan, Jr.: And the films were in cans in the desk drawer.
Wesley R. Asinof: Upstairs in the bedroom of the defendant in a desk drawer.
William J. Brennan, Jr.: But you say the claim -- was there any effort at the trial to show that he was going to have a party including showing these films?
Wesley R. Asinof: No, sir. None whatsoever. No testimony of that at all.
Byron R. White: But what do you do with films normally?
Wesley R. Asinof: Well, I would imagine that you would show --
Byron R. White: As souvenir or show?
Wesley R. Asinof: Well, I think that an individual could do as he pleases with it but the point is in this case, and this is the paramount we bring in here that the state did not contend by its indictment that he had any to intent show them and this was one of our grounds of demurrer in the trial court in the state court.
Byron R. White: That he could show them to somebody else.
Wesley R. Asinof: Whether there was any intent to do anything with it.
William J. Brennan, Jr.: Or even to show them (Voice Overlap) was nothing as I understand you. There's nothing to indicate except that he had them in the drawer and he had them on the closet, he had a projector and a screen.
Wesley R. Asinof: That's right. For his showing and for his own use.
William J. Brennan, Jr.: Or may be he wasn't going to show them at all.
Wesley R. Asinof: Maybe he wasn't going to show. He contended by his --
Byron R. White: But if somebody keeps it?
Wesley R. Asinof: Well, he could. In his statement, he said that I have never seen these films before, that a man brought them to my house on Labor Day which was about four or five before this but the point was that the state at no time in its indictment charges, we demurred on the ground of vagueness of the Georgia statute. The Georgia statute did not specifically make the mere possession on offense and that we ask for interpretation by the state court and got it. The Supreme Court construed the language to be sufficient to make the mere possession on offense and that's why we're in this Court. Because of the fact that we are reinforced by the state court decision holding that the mere possession is an offense and we say that gives it an unconstitutional interpretation.
Potter Stewart: The nub of this case appears on page 69 of the appendix, doesn't it? Right at the top of the page, that one sentence.
Wesley R. Asinof: I believe so Your Honor.
Potter Stewart: It is not essential to an indictment charging one with possession of obscene matter that it be alleged that such possession was with an intent to sell, expose, or circulate the film.
Wesley R. Asinof: That's correct.
Potter Stewart: And that's a clear holding by your --- the highest court of your state that mere possession or as my brother Brennan says, naked possession is sufficient to constitute a criminal offense.
Wesley R. Asinof: That's correct. That is the holding of the Supreme Court, so the question is squarely before this Court as to whether or not under that interpretation, given to or by the Supreme Court of Georgia whether or not that can be squared with the First Amendment whether mere possession of material alleged to be obscene pictures or writings can be constitutionally made a criminal offense.
Hugo L. Black: To get it down a little closer, it is that naked possession, pictures of naked persons cannot be kept in a person's house for that is committing crime.
Wesley R. Asinof: Under Georgia, under the interpretation given by the Supreme Court of Georgia, that is correct, Your Honor.
William O. Douglas: What did this fellow get, a year?
Wesley R. Asinof: Yes, sir. He received a year's punishment in prison. That was fixed by the jury and it was under the charge of the court, of course under Georgia law, peculiarly, the jury fixes the punishment and under the charge of the Court, the Court charged the mere possession as being -- that that's all they have to consider together with either that he had knowledge that they were obscene or that he should reasonably have known of its obscene nature. Now, this gets to the scienter question whether or not a state can withdraw the element of scienter by permitting a conviction to rest upon less evidence than actual knowledge that it is obscene.
Speaker: Has your client been out on bail?
Wesley R. Asinof: Yes, he's been out on bail and the second question involved in this case as I stated is that this Court has held in Grosso and Marchetti, since this case was tried that the Wagering Tax Act is constitutionally unenforceable. Now, this holding by the Court, we say, renders the search warrant that was issued in this case invalid. We filed a motion to suppress in the trial court. In our motion to suppress --
Byron R. White: When was the search warrant issued?
Wesley R. Asinof: The search warrant was issued before Grosso and Marchetti decision. It was issued 1967 but it was about -- it was some months before Grosso and Marchetti. But we filed a motion to suppress the evidence and in our motion, the allegation was made that the films were seized without a valid search warrant, particularly describing the articles to be seized. That language we say is sufficient to now reach back as of that time and say that that was a sufficient attack upon the warrant itself.
Byron R. White: Do you argue -- do you argue at all that even if the warrant was valid and even if Marchetti and Grosso aren't retroactive that nevertheless the search was invalid because the warrant described gambling paraphernalia and they nevertheless seized the film which -- it isn't like running across contraband that you can just by spying out the plain site. You have to actually look into the film to find out what's in it.
Wesley R. Asinof: Not only look into the film --
Byron R. White: Do you take that argument?
Wesley R. Asinof: Yes, sir. Not only look at the film but there had been -- this requires on the question of obscenity, it would require at least a finding of the magistrate to determine that these films were obscene. In this particular case, the evidence is clear that this officer called the Solicitor General and asked the Solicitor General what to do and he told him, if in your opinion they are obscene, seize the films and make a case and I'll set the bond. Now, we say that this would require before a film or a picture or photograph or anything else can be considered to be obscene, there must be some judicial finding, some notice, some knowledge that these films have been declared to be obscene at least that much and we say that for that reason, that even though officers would be authorized under search warrants to seize contraband not named in the article that they would not be authorized to seize films alleged to be obscene, that the Solicitor General himself had no judicial powers under law of Georgia, had no right to himself has seized in the films, but in this case, he delegated some sort of judicial power to the officer making the -- making the finding and told him if in your opinion, they're obscene then make a case.
William J. Brennan, Jr.: But you're -- I take it you're relying on Marcus. You're relying on Marcus?
Wesley R. Asinof: Yes sir, Marcus case.
William J. Brennan, Jr.: Of course Marcus involves as I recall it isn't it, a warehouse full of books which there were six or seven that the police have purchased and there on the basis of police examination of the books, they issued the warrant.
Wesley R. Asinof: That was under the Missouri statute.
William J. Brennan, Jr.: And we said that they have to have a determination offense but it's a little different. Here you have just a single item, just how would you get the film to have a determination of obscenity before a search warrant is issued.
Wesley R. Asinof: Well, if he had it -- if the Solicitor General had instructed the officer, submit your facts to a magistrate and if he --
William J. Brennan, Jr.: What facts? He definitely takes the films.
Wesley R. Asinof: Well, no. He could by affidavit submit to a magistrate who was authorized to issue a warrant, he could submit what these films revealed to him.
Byron R. White: According to another argument, he wasn't even entitled to look at them.
Thurgood Marshall: That's right.
Wesley R. Asinof: That's right. He was not even entitled to look at them which of course is again the question. But we say under either one of those theories, the seizure of the film was illegal.
William O. Douglas: Well, it wouldn't be obscene unless it lacked some socially redeeming values as I understand it.
Wesley R. Asinof: Well --
William O. Douglas: You couldn't tell that unless you saw it.
Wesley R. Asinof: Of course Your Honor that's true but we -- I think that's something that has been the subject of discussion for many, many years as to whether or not an item does have redeeming social value or whether or not it could be classified as obscene. Whether or not --
William J. Brennan, Jr.: Were these movies shown at the trial?
Wesley R. Asinof: Yes sir, the movies were shown at the trial.
William J. Brennan, Jr.: In the jury trial?
Wesley R. Asinof: Yes, sir.
William J. Brennan, Jr.: Are they here?
Wesley R. Asinof: Yes I think this Court has it and I would say that of course I think and I would concede to this Court that the pictures, the films in so far as films are concerned I think are disgusting but I don't know if disgusting makes them obscene. I don't know that they would appeal. They wouldn't appeal to my prurient interest. I don't know whose prurient interest they would appeal to because I think that they're sickening. But I don't think that there'd be anymore sickening than it would be to show a man being tortured to death and having guts tore out but that wouldn't be obscene. It's really hard to say what obscenity and I -- but getting right to the point in this case, we say that if they are the vilest, the foulest, the filthiest pictures that could ever be seen that a person has the right to possess them as long as he does not, and this is what this Court held last year in Redrup and the other cases along with Redrup, that as long as there is no pandering, as long as there is no exhibition to minors and as long as there is no intrusion upon the privacy of other persons who are unwilling to see them then of course, we have nothing to and this is all we have in this case. Unless we want to accept state's theory that because there was some biscuits being prepared, put in the stove, because of the fact that there was table that was set for eight when they were going to have dinner, and against the statement of the defendant on the trial of the case, nothing to refute that that a man had brought these films to him several days before and told him, “I have some films, I'd like you to see.” Now, we say this, if the Court please, that wherever we find that a question of obscenity is concerned or whether or not we know that something is obscene. If A tells B, I have some pictures here I want to give you and these pictures are obscene. Does that say that B cannot determine or ascertain for himself whether they are obscene to him or does that mean that he would have the right to him first himself inspect those films and say I have a right under the First Amendment to determine --
William J. Brennan, Jr.: Well, you don't have that case here, why argue that case?
Wesley R. Asinof: Well, that is --
William J. Brennan, Jr.: All you have here as I understand it assuming the obscenity of these films, a question whether the possession and nothing more not for sale or otherwise but just possession of itself constitutionally can make a crime under the First Amendment.
Wesley R. Asinof: That's correct.
William J. Brennan, Jr.: Isn't that what it is?
Wesley R. Asinof: That's right. And that's why I say if Your Honor please, that because of that, a man has right to determine for himself if it offends him, if to him it's obscene because it would violate the First Amendment that if a man handed me some films.
William J. Brennan, Jr.: Is there anything in this record to show that he had any knowledge of what these films were?
Wesley R. Asinof: None whatsoever except the fact they said an expert testified that the films have been scratched, one of them was been wound backwards to show that someone had seen them at some time in the past but nothing to show that he had seen them or he had ever viewed them. And there's nothing to refute or rebut his statement that he had never seen them before.
Hugo L. Black: Were they in his trunk upstairs or drawer?
Wesley R. Asinof: It was in a desk drawer of his bedroom upstairs. And there was no set up, nothing set up, no screen set up to show these or view these films.
Hugo L. Black: There's a difference between this and Wilkes case that was tried a long time ago that there they found a paper in the bottom of his trunk, here they found it under desk drawer.
Wesley R. Asinof: Well --
Hugo L. Black: And they turned them loose.
Wesley R. Asinof: I think that would analogies. So I would like to reserve what time I have. I know the white light hasn't come on, I would like to reserve if I may the time for rebuttal.
Earl Warren: You may. Mr. Sparks.
J. Robert Sparks: If it please the Court. I am the trial counsel who prosecuted this case in the court below, the Superior Court of Fulton County. So the court has original trial counsel. Mr. Asinof was a defense counsel. Now, I want to point out several things to the Court which I think Mr. Asinof neglected to point out because he was so wrapped up in his own argument. One is this, on the question of whether or not this Georgia statute contains the element of scienter. I want to point out to the Court that the Supreme Court of Georgia ruled on that in this very case. The Court said, I'm just reading in part, just a line. It's contended that being contended that the requirement of reasonable knowledge would withdraw the element of scienter from the definition of the offense and would render a person guilty without actual knowledge of the obscene nature of the matter. This contention is without merit. Now, Your Honor, as we have pointed out in our brief, this Court has consistently held that where a state statute is interpreted by the highest court of its state, that this Court is bound by the construction placed on it by that court. That happened in the Michigan, another obscenity case which the Court of course is familiar with and also in the last Ginsberg case. Now, in the last Ginsberg case, the New York statute which defined knowledge as this, the word “knowingly possess obscene matter”. The New York statute said define knowingly as having general knowledge of or reason to know, the exact same words that were in the Georgia statute or reasonably should know or a belief or ground for belief which warrants further inspection or inquiry. In other words, in the Ginsberg case and that's the G-I-N-S-B-E-R-G case, being two Ginsberg cases in the obscenity field, this Court accepted the construction placed on the scienter feature of the New York statute and said as we are bound to do. Now, the Georgia Supreme Court said in response to Mr. Asinof's contention that the language of the Georgia statute if such person has knowledge or reasonably should know of the obscene nature of the matter, does not remove scienter from the offense but is merely a statutory expression of a rule of evidence which has been extent in Georgia courts for many years. That is the only way you can prove intent or knowledge of a person as to anything as to whether goods are stolen or any element involving intent or knowledge unless he confesses is by the circumstances as to whether a reasonable man in the same position would know or would have knowledge of the obscene nature. So we submit -- I submit very respectfully that by a long series of this Court's own decisions that you cannot go beyond or reverse the judgment of the Georgia Supreme Court on this question of scienter because that is the state court interpreting its own statute and I have cited a number of cases where this Court has said that we are bound by such expression. This Court also said that in the Michigan case, you said in the Kingsley International Picture Corporation case, in about eight cases, Aero Transit, all of which are listed in our brief. So that moves us on to the second facet of the attack on the constitutionality of the statute. I submit most earnestly to the Court that scienter is an element of this offense as interpreted by the Georgia court, by the Georgia Supreme Court and if this Court cannot unless you reverse your prior rulings which are set out in our brief and which I have cited to you, unless you reverse that long line of cases, I don't believe the Court could in keeping with his precedent just say we think the Georgia court was wrong and I said that this does not -- that the statute does not contain the element of scienter. It's almost exact --
William J. Brennan, Jr.: What was the state's evidence on scienter?
J. Robert Sparks: The state's evidence to prove scienter. It was circumstantial Your Honor but we think that it was sufficient. These officers went in with a federal search warrant to seize a wagering paraphernalia. This man was alleged of many notorious bookmaker, whether a prior record of arrest and a conviction. Upstairs --
Hugo L. Black: Of course that wouldn't have any connection --
J. Robert Sparks: That wouldn't have any connection with this case but I was pointing out the probable cause that we had -- that was 28 pages of probable cause.
William J. Brennan, Jr.: I'm interested in how you brought evidence and what evidence there was upon which the jury could find that he knew the contents of these motion pictures.
J. Robert Sparks: One of the cans bears the label “Young Blood” on it, which is certainly is suggestive title. It's a homemade label. I gather from what the Court has said that the Court hasn't viewed these films that are here and I've asked the Court about --
William J. Brennan, Jr.: I'd still like to know if you don't mind.
J. Robert Sparks: Alright sir.
William J. Brennan, Jr.: What the evidence was that brought home to him knowledge of the contents of those movies?
J. Robert Sparks: Well, the evidence showed, Your Honor, that in the upstairs living room, there was a projector set up and a bunch of innocuous films, slides, travelogues, things like that. These films were not found with the other films, the innocuous or innocent type film but they were found in a desk drawer underneath some papers in his private bedroom. An officer -- the officers ran them, threw them against the wall, and then went downstairs and told him, says, “We are arresting you for the obscene films which we found upstairs.”
Thurgood Marshall: But why did they show the film? They were looking for what? The search warrant was limited to what?
J. Robert Sparks: It was --
Thurgood Marshall: With that posture, why did they want to look at the film?
J. Robert Sparks: Mr. Justice Marshall I think that they wanted to look at the films for the reason that the films might have been records, they were authorized to look for bookmaking records and it's not inconceivable that --
Thurgood Marshall: They would have them in a tin can marked “Young Blood”?
J. Robert Sparks: You could, just like the old “Purloined Letter” scheme, Edgar Allan Poe, the story about putting something in the most conspicuous place.
Thurgood Marshall: And I'm assuming policemen read Edgar Allan Poe?
Byron R. White: And assume as you saw the first film, the first frame, you thought you were still looking for records?
J. Robert Sparks: No, sir, but there were three cans.
Byron R. White: They ran through all three, I take it?
J. Robert Sparks: They didn't show all three of them Your Honor. The record shows they only showed a few feet of the second and the third one. In fact, one of the films that have rewound backwards which shows recent viewing and the pictures were thrown upside down.
William J. Brennan, Jr.: Now, you're going to tell us that he went downstairs and I gather you are going to tell us he met the defendant, the officer did?
J. Robert Sparks: He went downstairs and met the defendant and told the defendant that, “I'm arresting you for those obscene films upstairs.” The defendant said nothing. Of course I don't claim you can't use his right to remain silent against him. That's a constitutional right but it would still seem more logical to say what films if you didn't know that he had any obscene films. But of course --
William J. Brennan, Jr.: That's why he said nothing.
J. Robert Sparks: Yes, he said nothing.
William J. Brennan, Jr.: Now, what else have we got? The officer said that he was arrested for those obscene films, the defendant said nothing.
J. Robert Sparks: He said, “Let me call Mr. Asinof.” And he did call Mr. Asinof.
William J. Brennan, Jr.: Now does the fact that he called his lawyer, does that indicate that he knew what those films were?
J. Robert Sparks: No, sir, but they were his own statement. He made a statement on the trial. Georgia has the unsworn statement law where a defendant can either be sworn or make an unsworn statement. This is what he said and while it is not any admission, it's still significant I think it's very brief. He said, “I'm a bachelor, I live by myself and I have a girlfriend. We planned a party for Labor Day. I invited several couples out. Later on in the evening, a friend of mine came by and said I brought you something I want you to see. He handed it to me. It was three rolls of film. I took the film upstairs and put it in the desk drawer, closed the desk drawer, and came back downstairs.” Then he goes on to say, he never looked at it. However, there were -- two people were in the backyard when the officers made the execution of the search warrant, two men. Three women came over later that evening well-dressed women. There was Justice Marshall's three dozen biscuits sitting on the stove. All the indications were that there was going to be a party and in fact he told the jury that he was going to have a party and in the connection, the context of his statement telling about the party first and a friend bringing the films by and saying “I want you to see them,” I think it's a reasonable deduction that the jury could have drawn that these three films were to be shown at the party.
William J. Brennan, Jr.: Well, is there anything in what you've told us that support an inference that he had looked to the film and knew what they were?
J. Robert Sparks: Only -- one of the federal agents was the former professional photographer, Your Honor and he had -- he testified that the films were badly scratched, that they were dirty, that one of the films had been wound backwards which cause the figures to project upside down on the wall when they showed it and he said that they had obviously been used before, been shown before many times. It was a well --
Hugo L. Black: Many times? Many times, did you say?
J. Robert Sparks: I'm not certain whether he used the word “many” or not. I know that he said that they had obviously been shown before, that they had seen -- I believe he said he had seen extensive use. I could find that for you. Your --
Earl Warren: We'll adjourn now.


William H. Rehnquist: We'll hear argument next in No. 87-6571, Dethorne Graham v. M. S. Connor. Mr. Beaver, you may proceed whenever you're ready.
H. Gerald Beaver: Mr. Chief Justice. May it please the Court: On November 12, 1984, Dethorne Graham was not a convict or a criminal. He was not a pretrial detainee. Indeed, he was not even a formal arrestee. He was a free citizen of the United States of America who on that day had an insulin reaction, and he called upon a friend to take him to a convenience store where he could purchase some orange juice to help counteract the effect of the insulin reaction. Upon arriving there, he noted that because of a line it would take him a long time to get his orange juice, and he became concerned and ran to his friend's car and motioned for him to take him to his girlfriend's house. A Charlotte, North Carolina police officer saw him hurriedly exit the convenience store and determined the conditions to be suspicious enough to allow for a brief investigative stop to determine the facts. Upon making this stop, Mr. Berry immediately informed Officer Connor that Mr. Graham was indeed suffering from what he described as a sugar reaction. At this time Officer Connor asked Mr. Berry, or told Mr. Berry, that he must remain with Mr. Graham at that time while he determined what happened at the convenience store, and he began to depart. At this time the Petitioner became concerned, and according to his testimony he has little memory of what occurred, most likely because of the continuation of his insulin reaction. He exited the car and ran around it twice, and then sat down on the curb. From this point forward, taking the evidence in the light most favorable to the Petitioner, as must be done on a directed verdict, he was seated at that time, again peacefully talking with the police officers when back-up officers arrived. We know that those officers must have been told of the alleged sugar reaction before the first comment.
Byron R. White: What was he doing when the officers arrived? He was sitting on the curb.
H. Gerald Beaver: He was sitting on the curb.
Byron R. White: Was he conscious?
H. Gerald Beaver: Yes, he was at that time.
Byron R. White: Had he been?
H. Gerald Beaver: Yes, he had been conscious, but he has not memory of those events.
Byron R. White: To whom was he talking?
H. Gerald Beaver: He was talking to Mr. Berry and to Officer Connor at that time, when the back-up officers arrived, and we can tell by the comment of the first arriving officer that they were explained about the sugar reaction because the first comment was, "I've seen a lot of people with sugar diabetes before but none that ever acted like this. " "There must be... he must be drunk. " "Let's lock him up. " And they grabbed him, and they turned him over and they handcuffed him very tightly, so tightly that at the conclusion of this episode he had cut wrists; and they lifted him up by his arms and they carried him to the hood of Mr. Berry's car and laid him over it. At this time, he regained his senses and began to talk with the officers and complain about the treatment he was receiving, and he asked them to please check his back pocket for his diabetic decal to show that he was indeed a diabetic. The response was, an officer told him to shut up and slammed his head into the hood of the police car... or, I'm sorry, Mr. Berry's car. A few moments later, no less than four police officers grabbed Mr. Graham, one on each arm, one on each leg, picked him physically off the ground, carried him to a police car, opened the back door and threw him in, to use the Petitioner's words, like he was a sack of potatoes, and they drove him home... never arrested him. When he arrived home they unhandcuffed him and he fell flat on the ground, and he was carried within a few moments for medical attention and the examining physician discovered he had a broken foot. He in fact had an insulin reaction. His blood sugar count was very low; and they discovered that he had cut wrists and he had a large abrasion over his right eye. He had an injured right shoulder that prohibited him to the extent that for two weeks he could not administer his own insulin shots. He missed five and a half weeks of work at the North Carolina Department of Transportation. He incurred medical expenses. All as a result of this. On these facts, the lower courts on a directed verdict held that these acts by the police officers had violated no constitutional right of Mr. Graham to be free from bodily harm and physical abuse at the hands of law enforcement officers. May it please the Court, this decision is wrong, and it is wrong for four reasons. Initially it is wrong because it fails to understand that whenever force--
Byron R. White: Now what court decision are you talking about?
H. Gerald Beaver: --I'm talking about the District Court decision and the 4th Circuit Court of Appeals.
Byron R. White: We're reviewing the Court of Appeals decision.
H. Gerald Beaver: We are, sir.
Byron R. White: What did it hold?
H. Gerald Beaver: The 4th Circuit United States Court of Appeals, we contend, created a generic hybrid type of constitutional right with no specific provision as to what the constitutional anchor for the analysis is. They permitted the consideration of the subjective intent of the officers when it is our contention that two decades of 4th Amendment jurisprudence of this Court forbids such an analysis.
Byron R. White: So you're saying they applied the wrong rule of law.
H. Gerald Beaver: Yes, sir. They are wrong because they failed to understand that whenever force is used by officers to seize a citizen, the 4th Amendment, by its very own terms preventing, or prohibiting unreasonable search and seizure, controls analysis. The decision is wrong because it fails to apply the principles that were laid down by this Court in Tennessee v. Garner, an objective standard of reasonableness test to analyze this situation. It was wrong because it suggests contrary to two decades of 4th Amendment jurisprudence, beginning in 1967 with this Court's decision in the Schmarber case, that at a minimum the 4th Circuit held that it was relevant to consider, at a minimum that it was relevant to consider, not only was the officer's conduct unreasonable, but whether the officer inflicted pain on the citizen maliciously, sadistically, for the very purpose of causing harm. The 4th Amendment forbids that, Tennessee v. Garner and Terry v. Ohio tell us. And finally, the decision was wrong because the court below erred as a matter of law in resolving credibility issues, weighing testimony, determining credibility in the light not most favorable to the Petitioner and drawing unfavorable inferences in deciding and affirming its directed verdict. Initially, all parties in briefs concede that the Petitioner was seized in this case, when Officer Connor informed the Petitioner and Berry that they were not free to leave. However, the inquiry was not stopped there, for we are told in Terry v. Ohio that a seizure which is reasonable at its inception may violate the 4th amendment by virtue of its intolerable intensity and scope. To quote this court in Tennessee v. Garner, reasonableness depends not only when a seizure is made, but also how it is carried out. Tennessee v. Garner relied upon two decades of 4th Amendment jurisprudence of this court and analyzed an officer's use of force in seizing a suspect from an objective standard of reasonableness. May it please the Court, Tennessee v. Garner logically controls the disposition of this claim just as Terry and its progeny controls the framework of Tennessee v. Garner. Inexplicably, the 4th Circuit Court of Appeal fails to even cite or mention Tennessee v. Garner or the objective standard of reasonableness and instead embarks upon a determination of the Petitioner's claim based upon a substantive due process concept which was first formulated by the 2nd Circuit in its 1973 decision in Johnson v. Glick. In Glick, relying upon this Court's 1952 decision in Rochin v. California, the 2nd Circuit Court of Appeals held that the due process clause protects criminal suspects from police conduct that shocks the conscience. But of course, Rochin, the analytical predecessor of Glick, predated Mapp v. Ohio, and at that time, at the time Rochin was decided the 4th Amendment was not a part of the Constitution made applicable to the states. Nonetheless, Judge Friendly announced four tests to be used in analyzing this'shock the conscience' test, the fourth of which was a wholly subjective factor of whether the force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically for the very purpose of causing harm. These factors have since been used by a number of Circuits including the one below to analyze excessive force claims. However, we submit that the continued use of this substantive Glick test, and particularly its fourth factor, in seizure and arrest cases, is patently at odds with the express words of the 4th Amendment and the holdings of this Court. And that is for four reasons.
William H. Rehnquist: Mr. Beaver, don't you understand that your opponents here concede that the 4th Amendment is the correct mode of analysis for these facts?
H. Gerald Beaver: I understand that they do so in their brief, sir. Yes, sir, I do that. But what they do not concede is that... they would have this Court believe, and the 4th Circuit would hold, that its decision which relied upon the four Glick factors and discussed the four Glick factors, it would have us believe that that is simply another way of stating objective standard of reasonableness, and it is not. Objective standard of reasonableness forbids, strictly forbids a look at subjective intent, and the reason for this is it is irrelevant. It is irrelevant to an objective 4th Amendment consideration. Two examples: Tennessee v. Garner is a prime example of why it is irrelevant. In that case, clearly a majority of this Court held that the conduct engaged upon by the officers was objectively unreasonable. However, this Court... the Courts below when it was never raised, the officer there clearly acted with a benign intent. He was not in any way malicious or sadistic or acting for the purposes of--
Anthony M. Kennedy: But does the subjective factor have any bearing on any immunity that the officers might have?
H. Gerald Beaver: --It does not under this Court's decision in Harlow v. Fitzgerald where a subjective... this Court has driven subjective considerations from every aspect of 4th Amendment analysis.
Anthony M. Kennedy: So under your view, I take it, the immunity analysis collapses into the objective analysis under the 4th Amendment and the issue is simply the same?
H. Gerald Beaver: Oh, no. They are simply not the same. Tennessee v. Garner is a prime example of why it's not the same. Tennessee v. Garner, the conduct was held clearly to be objectively unreasonable at the same time it was held to be within qualified good faith--
Anthony M. Kennedy: There there was reliance, because of reliance on a statute?
H. Gerald Beaver: --Because of reliance upon the Bright Line test--
Anthony M. Kennedy: In this case... in this case, are the two inquiries precisely the same?
H. Gerald Beaver: --I would think not, but with all due respect there was no raising of the qualified good faith immunity defense in this case. It was never presented either by pleadings or in argument before the District Court or before the Appellate Court. It was never raised. It's simply not an issue in the matter. Hypothetically, I can see no reason why this case would be any different with Tennessee v. Garner. I think it clearly violates... can be argued clearly that it violates Bright Lyon standards to take a handcuffed man who merely asked you to look into his diabetic decal, grab him on the back of the head and slam his head into the hood of a car.
Sandra Day O'Connor: Counsel, under the objective approach, or test, that you propose, I assume that statements made by the officers during the course of the arrest that might indicate personal animus would be irrelevant.
H. Gerald Beaver: Yes. And my I explain... or may I take one little caveat to that. I recall your Footnote 13, I believe it was in United States v. Scott, in which you were talking about... this is the case involving the wire taps... in which you indicated that perhaps such bad faith statements could be usable by the Court in the criminal context, for example, to determine whether the exclusionary rule should apply. It can also be used in the civil context to look into credibility issues for jury determination if the officer is acting objectively malicious by his statements. Clearly a jury can consider that in determining the credibility of him taking the stand and saying that things occurred in a different way. And finally, in a civil context it's also useful for punitive damages questions.
Sandra Day O'Connor: then. it would appear that the officer's statements would have no relevance.
H. Gerald Beaver: Other than perhaps in a decision by the jury whether to award punitive damages.
Sandra Day O'Connor: Some of the circuits have applied a pretextual seizure doctrine. For instance, a traffic arrest is made, and it may be unreasonable even though the officer had probable cause, if in fact the officer was trying to make a drug arrest, for example. There are cases involving pretextual seizures.
H. Gerald Beaver: I see.
Sandra Day O'Connor: Do you think your objective standard would preclude that kind of an analysis?
H. Gerald Beaver: I believe that a pretextual stop is not objectively reasonable, if that makes sense. To arrest someone and seize them on a pretext I think from an objective point of view can be argued is--
Sandra Day O'Connor: But you wouldn't look at the officer's true intent under your theory.
H. Gerald Beaver: --Let me back up and say, strictly speaking with the objective test I would agree with you, with the justice.
Anthony M. Kennedy: You can't hypothesize any case in which a seizure is objectively unreasonable and there is good faith?
H. Gerald Beaver: --Oh, I'm certain that there are many cases where there is an objectively unreasonable seizure--
Anthony M. Kennedy: Only with the statute.
H. Gerald Beaver: --Tennessee v. Garner is a prime example. It was good faith and the seizure was unreasonable.
Anthony M. Kennedy: There was a statute there.
H. Gerald Beaver: Put on the spot it is very difficult for me to think of hypotheticals. I would certainly think that there are a number of situations cited in our briefs, both ours and the Solicitor General, as amicus, and I do not recall them specifically in my mind at this time and I apologize.
John Paul Stevens: Are you two whispering over there, or what's going on? I can't hear what you're saying.
H. Gerald Beaver: Pardon me. I cannot think of one at this time. There are numerous hypotheticals set forth in both our brief and the brief of the Solicitor General as amicus. If I may I would defer to those briefs and I apologize for not being able to come up with one at this moment.
Antonin Scalia: Mr. Beaver, you have to run that one by me again, where you said that you cannot conceive of how, you say, a pretextual stop is always objectively unreasonable. I think we're playing with words there.
H. Gerald Beaver: Well, I believe that I stated that--
Antonin Scalia: You don't know it's objectively unreasonable unless you know what the subjective intent of the officers is. Right?
H. Gerald Beaver: --That's correct, and I have since rescinded that in speaking with the justice as stated, but I do not believe that that would be a situation. I think a pretextual stop would not necessarily be objectionably unreasonable.
Antonin Scalia: It would not at all be.
H. Gerald Beaver: It would not be objectively unreasonable.
Antonin Scalia: So you'd be willing to apply your rule consistently, so you can make as many pretextual stops as you want.
H. Gerald Beaver: Right.
Antonin Scalia: Without violating the 4th Amendment.
H. Gerald Beaver: May I state, sir, that this is not my rule. This is the rule from Tennessee v. Garner and 20 years of objective jurisprudence.
Antonin Scalia: Whatever. You would still apply it consistently, though, and you'd think that pretextual stops are okay.
H. Gerald Beaver: For the purposes of this argument I believe that I would, yes sir.
Antonin Scalia: But the next argument, you wouldn't.
H. Gerald Beaver: Well, I might not. It depends on who my client is, Your Honor. Assuming, then, that the 4th Amendment applies, the Court below erred in considering either as an element of the Petitioner's claim or as a conceptual factor, however that is defined by the 4th Circuit Court of Appeals, the subjective intent of the officers. First of all, Section 1983 this Court has on numerous occasions has held contains no state of mind requirement, and one must focus on the specific constitutional amendment itself. As this Court has held in Tennessee v. Garner and in Terry v. Ohio and other earlier cases, the 4th Amendment calls for this objective standard. The 4th Amendment does not prohibit malicious and sadistic seizures or seizures that are accompanied by severe injury. It prohibits unreasonable searches and seizures, and as I stated I believe firmly that the subjective intent of the officers in making a seizure is a wholly irrelevant factor.
William H. Rehnquist: Wouldn't the officer at least have to intend to seize the person.
H. Gerald Beaver: Yes. Under... this sounds as if Your Honor is asking whether there must be an intentional act to predicate this test, and we certainly are willing to concede that this case does not imply anything about unintended acts creating unintended injuries. This case is no more involved with that type of situation than Tennessee v. Garner was. I believe that what the 4th Circuit opinion does, we mentioned a moment ago, or I mentioned the hybrid test which is not specifically set to any particular constitutional amendment. Yet if you tell a jury, in instructing the jury, that they should consider the subjective intent of an officer, you're going to end up with many jury verdicts in which the jury says well, the person was not being malicious or sadistic therefore we should not find against him. As mentioned earlier, this Court has driven subjective considerations even from the good faith defense. It goes even further in the last term in Michigan v. Chesternut, this Court drove the any subjective intent requirements out of the decision as to whether or not a person felt that he was seized. The Court held in Michigan v. Chesternut that a person is seized when he, when an objective person, when a reasonable person under the circumstances would not feel that he was wrong.
Byron R. White: What if we agree with you that the Court of Appeals used the wrong standard? What should we do? I know you want us to reverse, but--
H. Gerald Beaver: We would argue the case should be reversed and sent back for a new trial.
Byron R. White: --For a new trial?
H. Gerald Beaver: Yes. Or at a minimum, new findings under the correct standard.
Byron R. White: You mean in the Court of Appeals, they ought to review the, what the District Court did under the right standard?
H. Gerald Beaver: May it please the Court, the decision on directed verdict is a question of law.
Byron R. White: Right.
H. Gerald Beaver: The District Court, the Court of Appeals, for that matter this Court, has no discretion in how to determine the facts here. The facts are to be determined in the light most favorable, and this Court as well as, is in as good a position as any Court, to read the bare record and determine what is the light most reasonable... most favorable to the Petitioner.
Byron R. White: But if they reviewed the directed verdict judgment under the wrong standard why shouldn't we just send it back to the Court of Appeals and say, you should fly the right standard?
H. Gerald Beaver: That is one option for this Court. We, however, believe that this Court is in as good a position to make that decision and that clearly, clearly there is evidence in the light most favorable to the Petitioner.
Byron R. White: Then we have to study the record and know all the facts... that's a lot of work.
H. Gerald Beaver: I presume the justice has studied the record and is familiar with the facts.
Anthony M. Kennedy: Should the jury be instructed that if the facts are as you state them to be they must bring in a verdict for the Plaintiff? Does the jury decide reasonableness in every case?
H. Gerald Beaver: No, not in every case. Personally I've tried two cases in which a Court has told the jury if they find it in the way that the Plaintiff has contended things occurred they would find for the Plaintiff. If they found it in the way the defense said... there are some cases which are clear. There are other cases which it is a jury question, when they have to resolve conflicts.
Anthony M. Kennedy: In this case, if the evidence is as you have explained it, and I recognize only one side has testified, then as a matter of law is it an unreasonable seizure?
H. Gerald Beaver: In my opinion, in this case, were there no other side to be heard, yes, under an objective reasonableness test. You don't even treat arrestees like this. This is a Terry stop that got out of control, as a matter of law, without hearing from the other side. But there is another side to be heard. We are not asking this Court to direct the verdict in our favor. Clearly, clearly they have the opportunity to present their evidence and to make their arguments. The problem with this case is that the 4th Circuit opinion, and I repeat, allows... at least allows, if not requires... the consideration of subjective intent. The 4th Amendment forbids it. Thank you.
William H. Rehnquist: Thank you, Mr. Beaver. Mr. Levy, we'll hear now from you.
Mark Irving Levy: Thank you, Mr. Chief Justice, and may it please the Court. We think Petitioner has misunderstood the Court of Appeals decision in this case. That decision does not implicate the question the Petitioner has asked this Court to decide. The question presented and briefed and argued today by Petitioner is whether excessive force claims under the 4th Amendment and Section 1983 are governed by a subjective test. Now, let me note that the Petitioner himself concedes in his brief that he never focused his claim on the 4th Amendment either in the District Court or in the Court of Appeals. Indeed, his complaint nowhere refers to the 4th Amendment, even though it was filed some approximately four months after Garner was decided. And today, Petitioner faults the Court of Appeals for not referring to either Terry or Garner in its opinion, out I note that his brief in the Court of Appeals cited neither of those cases.
John Paul Stevens: Yes. But the dissenting opinion did. Judge Butzner cited them.
Mark Irving Levy: That's correct, it did. But this case was never focused--
John Paul Stevens: They weren't exactly a mystery, those cases at that time.
Mark Irving Levy: --Excuse me?
John Paul Stevens: Those are new cases. I would think the Court of Appeals normally would address itself when the dissenting judge cites them.
Mark Irving Levy: It certainly could have. But we don't think this case presents the question the Petitioner seeks to raise in this Court, for the decisions and the judgments below do not depend upon the application of a subjective test, and I say that for two reasons. First, the phrase "maliciously and sadistically" does not, as Petitioner believes, refer to the actual subjective intent of the officers. Indeed, at the trial here, no one ever suggested that subjective intent was an element.
William H. Rehnquist: Let me interrupt you for just a moment. Do you agree that this case should be decided under 4th Amendment principles?
Mark Irving Levy: We agree that it can be analyzed under the 4th Amendment.
William H. Rehnquist: And should be?
Mark Irving Levy: Yes, we would agree with that. I think there are some cases I should add, and this one may be debatable, that could be decided under the 5th Amendment standard. The test proposed by Petitioner is that the 4th Amendment seizure continue so long as the arrestee is in the company of the arresting officers, which could continue after bail has been set and the person bound over in the local jail. So we think that test goes very far, but on these facts as we've got them today we don't object to the application of a 4th Amendment analysis. But as I was saying, the trial in this case, no one ever suggested that subjective malice was an element of Petitioner's cause of action, and Petitioner never even attempted to prove the subjective intent of the officers. Now the 4th Circuit itself explained in this case that "concepts such as malicious and sadistic should be understood as descriptions of the degrees of force that exceed the state's privilege and thereby implicate intrusions into constitutionally protected personal security. " The en banc 4th Circuit offered the same explanation in its subsequent opinion in Justice against Dennis, which was rendered prior to the filing of the petition in this case.
Antonin Scalia: Is this on the theory that words mean precisely what we intend them to mean and nothing else? That's a very strange way to use those words, isn't it?
Mark Irving Levy: No. It was an attempt by the Court of Appeals to define that level of force that constitutes a constitutional violation. It is not the subjective intent of the officers. A malice standard in law is often an objective standard, and under the 4th--
Antonin Scalia: For example?
Mark Irving Levy: --I think in common law immunity defenses, for example.
Antonin Scalia: A malice standard is objective?
Mark Irving Levy: I believe that's right. Malice can be inferred from the objective circumstances, and the Court said as much in this case and in its--
Sandra Day O'Connor: The inference is of intent. I mean, the normal meaning of those terms is addressed to the intent of the actor, and there may be objective circumstances that give rise to an inference, but I think the normal use would indicate subjective intent.
Mark Irving Levy: --They could be used in that way, but the Court of Appeals--
Sandra Day O'Connor: They would normally be used that way, and I don't know that I can read the Court of Appeals language as imposing some objective standard out there by the use of those words. It looked very much like they were kind of adopting a sort of Whitley v. Albers standard for review of what occurred here.
Mark Irving Levy: --We read the Court of Appeals decision in this case and in Justice subsequent en banc decision to explain that it was an objective test: that it's a legal description of that level of force that is more than simply a battery under state law and reaches the level of a constitutional violation. So it is not an objective... I mean, it is not a subjective standard that looks to the intent of the jury. Now, it may well be that other words could be better chosen to accomplish that, but we think the Court of Appeals has sufficiently explained itself. But let me say, equally important, even if the Court of Appeals did think that in general a subjective test was appropriate here, the decisions of the District Court and the Court of Appeals in this case did not turn in any way on any subjective standard. Rather, both Courts held the Respondent's conduct was objectively reasonable considering the need for force, the amount of force used and the extent of the injuries that Petitioner has alleged.
Thurgood Marshall: What reason was there for handcuffing a diabetic in a coma?
Mark Irving Levy: At the time the officers didn't know that he was a diabetic in a coma.
Thurgood Marshall: What was he doing that was so violent that he had to be handcuffed?
Mark Irving Levy: You have to go back one step even before that. Officer Connor saw Petitioner act in a very suspicious and unusual manner. He saw Connor hurrying from the convenience store.
Thurgood Marshall: Violent?
Mark Irving Levy: It wasn't clear. He saw him hurry into a convenience store. He was hurrying out.
Thurgood Marshall: Well, what did he do that was violent?
Mark Irving Levy: Testimony. Petitioner's own witness said that Petitioner was throwing his hands around; that he was resisting putting the handcuffs on; that Berry had asked for Officer Connor's help in catching--
Thurgood Marshall: But what was he doing, I'm talking about before they put the handcuffs on him. What was he doing before they tried to put the handcuffs on?
Mark Irving Levy: He was acting in a very bizarre manner. He ran out of the car, circled around it twice and then sat down. At that point, Berry asked for Connor's help in catching the Petitioner, and Berry testified without contradiction at trial that even at that point, before any handcuffs were being considered, Petitioner was throwing his hands around. The District Court--
Thurgood Marshall: Was that threatening anybody? Did he strike anybody?
Mark Irving Levy: --Well, the officers didn't have to wait until he was--
Thurgood Marshall: Did he strike anybody?
Mark Irving Levy: --I don't believe the record indicates that he struck anybody.
Thurgood Marshall: Did he threaten to strike anybody?
Mark Irving Levy: He was acting in an unpredictable and potentially dangerous manner.
Thurgood Marshall: Can you answer, did he threaten to strike anybody?
Mark Irving Levy: He did not overtly threaten to strike anyone.
Thurgood Marshall: Did he have a weapon of any kind?
Mark Irving Levy: The record doesn't indicate, I don't believe.
Thurgood Marshall: The record didn't show he had a weapon of any kind?
Mark Irving Levy: That's correct.
Thurgood Marshall: Well, why was he handcuffed?
Mark Irving Levy: The record shows that he was properly stopped as a suspect for a criminal investigation; that he was acting suspiciously; that he was acting in a bizarre manner; that Mr. Berry asked for Officer Connor's help.
Thurgood Marshall: Is bizarre an explainable word, or does it cover anything?
Mark Irving Levy: No, it doesn't cover anything.
Thurgood Marshall: What does it cover?
Mark Irving Levy: It covers, certainly, Petitioner's conduct in this case.
Thurgood Marshall: Which was what?
Mark Irving Levy: And Mr. Berry so said. He said he didn't know what was wrong with Petitioner. It might be an insulin reaction, a sugar reaction. He'd never seen one. He was scared. He didn't know what to do. He asked for Officer Connor's help. He testified that Petitioner was throwing his hands around. The District Court stated without contradiction that when the back-up officers were arriving a scuffle started, and at that point the officers sought to put the handcuffs on Petitioner. He resisted the handcuffs. He threw his hands around more. Even after he was handcuffed and the officers wanted to put him in the car, the undisputed record shows that he was vigorously fighting and kicking, resisting getting into the car, and the District Court and the Court of Appeals both commented on that.
Thurgood Marshall: Shouldn't a diabetic object to being arrested rather than given treatment?
Mark Irving Levy: He wasn't arrested. He was never arrested.
Thurgood Marshall: Well, why was he handcuffed?
Mark Irving Levy: He was handcuffed because the officers were concerned that he was a criminal suspect. He was acting in a very unusual and erratic way. He was throwing his hands around. Indeed, the District Court stated from the record that he was handcuffed in part to protect himself, as well as the officers.
Thurgood Marshall: In order to protect himself?
Mark Irving Levy: The District Court summarized the record as indicating that. That's correct.
Thurgood Marshall: May I differ from that conclusion?
Mark Irving Levy: The record either supports it or it doesn't but the District Court did say that, and I think it is supported by the record. But the officers also were entitled to protect themselves; to maintain control of the situation; to secure their custody of the Petitioner. They didn't have to wait until he threatened them. They didn't have to wait until events got out of control. The circumstances here, that he was a criminal suspect, he was properly stopped for investigation. Indeed, Petitioner's own expert witness at trial conceded that the use of handcuffs was reasonable and appropriate here.
Anthony M. Kennedy: Was there a seizure here?
Mark Irving Levy: Yes, I agree there was a seizure. No one disputes that. The Petitioner concedes below and in this Court that the seizure itself was proper and lawful. That's not what he is complaining about.
Sandra Day O'Connor: Well, Mr. Levy, I guess at the time the officers finally put the Petitioner in the wagon they were aware that no crime had occurred in the convenience market.
Mark Irving Levy: I think that's not correct. The record shows that it wasn't until he was in the car that for the first time, Officer Connor was able to check to see what had happened at the convenience store and determined that no crime had been committed.
Sandra Day O'Connor: Were they aware he was a diabetic at the time he was lifted into the wagon.
Mark Irving Levy: There were statements to them that he was a diabetic. I don't think they knew one way or the other, although I don't think that particularly matters either. Even if he was a diabetic, and his complaint is that he wasn't given medical treatment, he doesn't allege any injuries from that.
Sandra Day O'Connor: Well, let's see. He alleges his foot was broken.
Mark Irving Levy: That didn't result from the diabetes.
Sandra Day O'Connor: From being lifted into the wagon.
Mark Irving Levy: The record doesn't show how his foot was broken. He simply failed to carry his burden of proof to show that. It could have been something that he did to himself, as the District Court suggested, or it could have resulted from the officer's reasonable use of force. There's no indication.
William H. Rehnquist: Isn't that really a jury question?
Mark Irving Levy: But the Plaintiff in this case, the Petitioner, has the burden of putting in evidence that shows its more probable than not.
William H. Rehnquist: Well, if you're sure that your foot was okay before this sort of a fracas and it's broken afterwards, isn't the jury entitled to infer that it was a result of this confrontation?
Mark Irving Levy: Oh, it's entitled to infer that it occurred during the confrontation. It's not entitled to infer, we don't think, that it was caused by the officers through any wrongful conduct. As I say, it could have been something that the Petitioner did to himself in his course of thrashing around and resisting. It could have been something that occurred from the reasonable use of force by the officer.
William H. Rehnquist: And you don't think those are jury questions?
Mark Irving Levy: I don't think they are in this case, but even if they are, there still is no jury question about whether the officers acted unreasonably. Even if they could find that an injury resulted, there is still a precedence step and a constitutional step about whether the officers did anything that violated the 4th Amendment.
Harry A. Blackmun: How many officers were there? Four?
Mark Irving Levy: I believe there were five in total.
Harry A. Blackmun: Five.
Mark Irving Levy: That's correct.
Harry A. Blackmun: Diabetic coma is not particularly uncommon, is it?
Mark Irving Levy: It is not uncommon, although it is very similar in its symptoms to drunkenness. The police did not act unreasonably here in thinking the Petitioner might be drunk.
Harry A. Blackmun: Well, that's always asserted, but there are diabetic comas and there is drunkenness.
Mark Irving Levy: There is.
Harry A. Blackmun: And police officers know the difference.
Mark Irving Levy: Well, these officers here had training on diabetics and one officer stated that based on her experience Petitioner was not acting like a diabetic. He was acting like a drunk. Now, she may have made a mistake in that, but it was her conclusion at the time, based on the training she had received. I would cite the Court to the 1st Circuit's decision in Compton against--
John Paul Stevens: Before you do that, Mr. Levy, what about the reasonableness of not following up on his request that they look at the card in his pocket that would indicate he was a diabetic.
Mark Irving Levy: --Even if he was a diabetic, that would not have changed the officer's actions here.
John Paul Stevens: If they were on reasonable notice of the fact that he was a diabetic and desperately in need of orange juice that wouldn't affect the reasonableness?
Mark Irving Levy: Well at first they wouldn't have known that he was desperately in need of orange juice.
John Paul Stevens: Well, he said he was.
Mark Irving Levy: That's not clear from the record, and even if they knew he was having a diabetic problem they wouldn't have known whether it was caused by too much or too little blood sugar. The treatments for those conditions are exactly the opposite, and by guessing wrong they could have done more harm than good. Petitioner was also asked twice whether he wanted to go to the hospital or needed medical assistance and he said no.
John Paul Stevens: They didn't have to guess. Couldn't they ask his companion what they were trying to do?
Mark Irving Levy: his companion said, Mr. Berry said, that he didn't know what was wrong with Petitioner. It might be a blood or a sugar reaction; that he had never seen that before; that he was scared; that he didn't know what to do, and that he asked for Officer Connor's help in catching Petitioner when he was running around the car.
John Paul Stevens: What do you think the reasonable police officer should do in that circumstance? Dump the man in the car and take him home and dump him on the lawn?
Mark Irving Levy: Well, that's not what happened here even at the end. They took him home. He was given the orange juice at that point.
John Paul Stevens: Not by the police officers.
Mark Irving Levy: Excuse me?
John Paul Stevens: By the police officers?
Mark Irving Levy: I believe it was by his friend who had brought the orange juice. But the police didn't interfere with his getting the orange juice at that point. He was freed. They removed him from the scene not because they were arresting him but because a crowd had gathered and was getting out of hand, and so they decided to remove him. But the conclusion that his medical problem wasn't urgent and could be deferred until he was secured and removed from this hostile scene seems to us to be reasonable, in light of his own statements refusing medical assistance and saying he didn't need to go to the hospital. In view of his physical resistance; in view of the crowd that was gathering. I think the police, while perhaps not acting perfectly... I don't know the answer to that question... but I can't say that they acted unreasonably here.
John Paul Stevens: Can I ask one other question that was prompted by something Justice O'Connor asked. If we adopt a purely objective standard as everyone suggests, is the language that the officers used relevant or not?
Mark Irving Levy: I think it is not relevant.
John Paul Stevens: It would not itself be an unreasonable aspect of a way in which one seizes a citizen, to use that kind of language?
Mark Irving Levy: I believe that's correct.
John Paul Stevens: You don't think it would ever be harmful at all?
Mark Irving Levy: If the seizure itself was lawful--
John Paul Stevens: Well, they have sufficient factual basis for a Terry stop. Is it appropriate or is it reasonable for the officer to use epithets and things.
Mark Irving Levy: --It may not be appropriate, and I certainly don't defend what the Court of Appeals characterized--
John Paul Stevens: Is it not relevant, even?
Mark Irving Levy: --I think it is not relevant under an objective standard, the 4th Amendment.
John Paul Stevens: Even though it might incite further confrontation and the like and help bring the crowd around and all that sort of thing. Well anyway, you say it's totally irrelevant.
Mark Irving Levy: I think it is. Now, sometimes the police officers are legitimately entitled, I believe, to use rough language. That is a method of controlling a suspect or of controlling a crowd. There's much difference between asserting their authority and meekly requesting in polite language that the suspect do anything. I don't attempt to defend some of the language that's alleged to have used here, but we've only heard one side of the case.
Thurgood Marshall: This is five officers with loaded guns and a handcuffed prisoner, and they need to do something else?
Mark Irving Levy: What they did at that point--
Thurgood Marshall: Did they need to do anything else to maintain peace and order?
Mark Irving Levy: --They put him in the car and they removed him from the scene, that's what they did. And at that point they--
Thurgood Marshall: Why did they need five? Why did they have to use that kind of language?
Mark Irving Levy: --They didn't have to use that kind of language, and we don't defend that but it's not--
Thurgood Marshall: Well that's a part of it in my book.
Mark Irving Levy: --But even if it's a part of it... and I don't agree with that... but even if it is, it is not a constitutional violation.
Thurgood Marshall: How big was this man?
Mark Irving Levy: The record doesn't indicate. It only indicates that Berry was 280 pounds. But remember, when the police stopped the car--
Thurgood Marshall: Five policemen, fully armed, can take care of one prisoner without maltreating him.
Mark Irving Levy: --I don't think the officers here maltreated him.
Thurgood Marshall: Yes, or no?
Mark Irving Levy: Yes, I think five officers can, but part of what they had to do--
Thurgood Marshall: Well, why didn't they?
Mark Irving Levy: --I think they did.
Thurgood Marshall: They maltreated him.
Mark Irving Levy: No. I don't think the record showed that.
Thurgood Marshall: They picked him up and shoved him in the back of a car.
Mark Irving Levy: He was resisting. Even after he was handcuffed, Justice Marshall, the undisputed evidence is that he was kicking and fighting, resisting getting into the car. The officers were entitled to use force to overcome his resistance, even if it meant, as he characterizes it, throwing him into the car. The evidence is that two or three officers stood on one side and pushed him in the door. One officer took his arm from the other side and pulled him through. That was what he characterizes as throwing him in the car. Given his resistance, even after he was handcuffed, and given the crowd that was gathering and getting out of hand the police were reasonable in deciding that they needed force to overcome his resistance and that they needed to get him into the car quickly and out of the hostile environment.
Byron R. White: Mr. Levy, suppose we think the Court of Appeals applied the wrong standard; that they did not apply an objective standard and that the objective standard is the proper one. Shouldn't we remand to the Court of Appeals without getting to the facts, or not?
Mark Irving Levy: We think the Court can get to the facts. The record here is not very long.
Byron R. White: Well, of course we can. What do think we ought to do?
Mark Irving Levy: I think the Court should decide it. I think it would provide helpful guidance to lower Courts if the Court not only enunciated the standard but applied it here. The record in this case is about 100 pages long. It's really quite short. Unfortunately, some important material is not contained in the joint appendix, but I would urge the Court to read the record if it decides to undertake the question of whether the directed verdict in this case was appropriately entered. But to follow up on your question, justice White, even if you think the 4th Circuit's general standard is one of subjective intent, the basis for the holding in this case was not subjective. Both of the decisions below turn on the determination that the officers acted with objective reasonableness in the circumstances of this case. The Court of Appeals itself said that a directed verdict was proper because "the evidence clearly establishes that at each stage of the incident the actions of the officers were essentially reasonable. " The Court of Appeals did not rule for Respondents here on the theory that they had not acted maliciously and sadistically in using unreasonable force. Instead, it held that looking to the need for an amount of force here, the use of force simply could not have been found to be unreasonable in the circumstances of this case. That's the objective standard the Petitioner advocates.
John Paul Stevens: Mr. Levy, I hate to keep interrupting you, but I think there is a lot in the opinion that supports your argument that the Court was basically applying an objective standard. But the one comment that I wish you'd comment on is the second paragraph of Footnote 3, when the Court points out that they don't think there should be a conceptual difference between 8th Amendment standard and the 4th Amendment standard. I read that as the Court of Appeals applying the equivalent of an 8th Amendment standard in a 4th Amendment context.
Mark Irving Levy: Let me give two answers. First, at most that would go to the question of what the Court of Appeals thinks the general standard is, not necessarily what it was applying in this case. But beyond that, it's not so clear to me that the 8th Amendment standard under Whitley isn't a subjective standard.
John Paul Stevens: Oh, I agree one can read that as also an objective standard, but it's a much more severe, it's a different standard than the 4th Amendment standard, or is it? Do you think it is?
Mark Irving Levy: It's different in its words, and maybe at the margin it's different. It's hard to know exactly, and we don't necessarily propose that the Court adopt the same words as the 4th Amendment standard here.
John Paul Stevens: But the Court of Appeals seems to have applied a standard that would be the same standard in an 8th Amendment context. That's what I'm saying. And if you don't urge that, then it seems to me that you are not defending the Court of Appeals rationale.
Mark Irving Levy: No, I think the Court of Appeals decision is defensible, although as we discussed before its language may be a little bit ill-chosen to convey the sense of an objective test. We think that's what they were doing, and maybe more precise language would be useful.
John Paul Stevens: Well, I'm not making the objective subject dichotomy, but just saying that theirs is a more severe objective test than the proper objective test would be.
Mark Irving Levy: I think the problem in this case, or in Whitley against Albers, or in Garner, is to formulate a constitutional standard that allows... that accommodates the legitimate need of law enforcement officers to use force on the one hand, but doesn't allow them to use force that is simply gratuitous or unrelated to any legitimate law enforcement need. The problem is basically the same in those two areas. Now it may be that taking the context into account, the law enforcement officials can do different things in those two areas in balancing the two competing considerations, but the underlying problem is very much the same. An example may help to illustrate that. If the prison riot that occurred in Whitley had occurred at a pretrial detention center like the MCC in New York, the 8th Amendment wouldn't have applied because those people hadn't yet been convicted of a crime. And yet riot in a jail, it seems to me, could be handled in precisely the same way that the riot in Whitley was handled. The fact that the jail situation would be analyzed under Bell against Wolfish and 5th Amendment substantive due process terms, whereas the Whitley situation was analyzed in 8th Amendment terms, doesn't really change very much, if at all, the real issue that's before the Courts in dealing with these kinds of problems. And similarly, in the 4th Amendment area, the question again is what is a reasonable range of choice for police officers in carrying out their duties. Now, the test we would propose... and it differs in language but I don't think in philosophy from the Court of Appeals... is this: force is unreasonable under the 4th Amendment if it is clearly excessive, such that no reasonably competent police officer could have thought it appropriate because it was arbitrary in relation to any legitimate law enforcement need. In other words, so long as the use of force was debatable and within the range of judgment of reasonable police officers, it is not a federal constitutional tort. And we think that is in sum and substance very much what the Court of Appeals was getting at in this case. It was trying to determine, through the malicious and sadistic standard, when the use of force was appropriate for a law enforcement need on the one hand, or when it wasn't. When it was simply being used, to quote the language, maliciously and sadistically for the very purpose of inflicting harm. We think that was the issue the Court was grappling with, and its standard drew the line in that place. Now, let me talk a little bit more about the general 4th Amendment standard. We don't disagree that this case can be analyzed in 4th Amendment terms. We don't disagree that the 4th Amendment establishes an objective reasonableness test judged in the light of the totality of the circumstances as they appeared to the officers at the time. And indeed, the 4th Circuit itself recently applied an objective reasonableness standard under the 4th Amendment in a recent decision called Martin v. Gentile, which is reported in 849 F. 2c. We do, though, strongly disagree with the way in which Petitioner proposes that the 4th Amendment test be understood and implemented. Now, it is axiomatic, we think, that the use of force is a necessary and unavoidable part of police work, including arrests and stops. As the North Carolina amicus brief explains, police daily confront dangerous, often violent situations that require split-second judgments on the scene, in difficult, uncertain and fast-changing circumstances that pose serious risks and injury or even death to the police officers and others. It should be recognized that there is a range of actions that would be reasonable for the police to take in light of their appraisal on the scene, on the spot of the ambiguous and changing circumstances as they see them. It's important that not every state battery claim against the police official be converted into a federal lawsuit under Section 1983. Not every battery becomes a federal constitutional case simply because the defendant is a police officer. In judging the actions of the police officers it is also important that they not be... not be looked at in hindsight in the calm of the courtroom to determine whether the officers acted in the best possible way, or whether they used no more force than we can now see was absolutely necessary in the circumstances. And that's basically what Petitioner's test proposes. His standard is the hypothetical reasonable police officer. The force is excessive if the hypothetical police officer would not have thought that it was reasonably required and necessary in the circumstances, and that language... reasonably required and necessary... is contained in Petitioner's brief on pages 25 and 36. Now, Petitioner of course pays lip service to the concerns that I raise, but it's clear from the way he would apply his test in this case that he doesn't really mean them. His test would enshrine the Restatement of Torts in the Constitution, and would convert every battery case against the police officer under state law into a federal cause of action. I read his brief, I've listened to his argument, and he proposes no principle... no basis... for saying that some battery actions fall only under state law and distinguishing those that he says would be a federal constitutional case. Every such arrest that involves the use of force is a potential federal civil rights case under his proposed test. Every claim that the police officers used more force than was necessary... that is, they were appropriately using some force, but simply used more than they reasonably should have, would state a federal cause of action. Every contention that a suspect was thrown a little bit too hard against a wall, or that an officer's grip on a suspect was a little too hard--
Thurgood Marshall: Before you go too far on these "everys" we're dealing with one diabetic. We're not talking about murderers and criminals.
Mark Irving Levy: --Well, he was a diabetic as we now know, but he was also a criminal suspect who was acting very suspiciously and erratically.
Thurgood Marshall: Well, criminal suspects are not guilty.
Mark Irving Levy: And he was never arrested here. There's no question about his guilt. But he was a suspect. He was acting erratically, he was physically resisting the officers. We think his treatment here was not a constitutional violation in any respect. Now, there's one part of Petitioner's test that I'd like to comment on specifically. As the Solicitor General's brief makes clear, Petitioner's test calls for a comparison between the police officer's conduct and any less forcible alternatives that they might have used in the circumstances. That's a least drastic means test, and we think it's wholly out of place in this context and inconsistent with this Court's decisions in Whitley against Albers, in Bell against Wolfish and most particularly in Martinez Fuerte, which was itself a 4th Amendment case. A reasonable governmental action does not become unreasonable simply because the police did not take the best possible option. At least so long as the choices were within the ranges of debatable alternatives, the fact that the best one is not selected does not render the choice made unconstitutional. Another problem with the Petitioner's least drastic means approach is that it practically invites the jury to second-guess the actions of the police officers and to substitute its judgment for theirs as to what should have happened.
John Paul Stevens: Mr. Levy, your test is kind of a rational basis test to boil it down, isn't it?
Mark Irving Levy: It could be characterized that way. It does draw on that, as well as the 4th Amendment notion of reasonableness, but we think that really is the core inquiry here. When is it reasonable, when is it rational for police to use the force that they did in the way that they did, or when was it unrelated to some legitimate law enforcement need? And I don't know that juries are going to be very good at making that determination. They're going to be presented with alternatives by Plaintiff's expert witness at trial. They're going to be deliberating this in the calm hindsight of the courtroom, and it's going to be all too easy for them to conclude that it would have been better for the police to have acted differently, and that should not be the constitutional standard and it should not be left to the juries to decide.
Antonin Scalia: Well, but you're conflating the 4th Amendment test with a test for official immunity. I mean, we could adopt a tighter test for the 4th Amendment. That is the test that your opponent explicitly espouses. Was it more force than was necessary, period. If it was, it's a 4th Amendment violation. Whether the policeman is liable for it, on the other hand, would depend upon whether a reasonable policeman could have believed that he was using no more than was necessary. The issue of immunity is quite different from the issue of whether there has been a 4th Amendment violation.
Mark Irving Levy: It is quite different, and there is no immunity issue in this case because by oversight it was failed to be raised below.
Antonin Scalia: But don't make us distort the law to cover that oversight.
Mark Irving Levy: Well, the application of immunity doctrine here is not at all clear. In some respects, it's like Anderson against Creighton, and we think whatever the standard is, there would be room for an immunity defense. But in Whitley against Albers and in Daniel; against Williams, the Court didn't refrain to decide the liability issue because there might be an immunity defense. Liability is the logically antecedent question and there are reasons why the Court shouldn't want all its bases.
William H. Rehnquist: Thank you, Mr. Levy. Mr. Beaver, do you have any rebuttal?
H. Gerald Beaver: Very briefly, if I might, Your Honor. Mr. Chief Justice, again may it please the Court. Speaking of this hostile environment. It was not a hostile environment to my client. He was amongst friends. It was hostile, perhaps, to the police officers who were abusing him. The point I'm getting at is, I don't believe the police can create their own exigency and then complain that they had to use force against someone to get themselves out of the exigency that they have created by their own objectively unreasonable behavior.
Byron R. White: Well, the Court of Appeals said that it was undisputed that really the evidence showed that your client was being very active sitting on the curb, and that he was having to be restrained by his friend and an officer.
H. Gerald Beaver: If I may, sir, get fact-specific, Justice: under the case in the direct examination of Mr. Berry, he was directly asked whether at any time he saw the Petitioner kicking or waving his arms around or resisting in any way. He stated he was there throughout the entire transaction and at no time did this occur. He did state on cross-examination that on a time or two the Petitioner protested against his treatment and pulled his arms away.
Byron R. White: There was testimony that he tried to kick an officer.
H. Gerald Beaver: There was testimony from another police officer that he did that, but we are not bound by the credibility of a police officer that we call for adverse examination under the Federal Rules of Evidence, Your Honor. We've heard these cries of wolf, that if such a standard were to be adopted the floodgates would be let down, before. But to be quite candid, there are a mountain of problems bringing cases such as this. The Monell doctrine prohibits bringing other than the most egregious, clearest policy, practice and procedure cases against municipalities. Qualified good faith immunity protects officers much as Justice Scalia has just correctly discussed. It is easy to confuse the objective standard of reasonableness and qualified good faith immunity. It is a substantial protection for police officers who act with objective good faith in their activities. The Detura decision issued by this Court two years ago, which prohibited the awarding of substantial damages on the basis of violation of constitutional rights alone without any regard whatsoever for physical injury, would certainly deter the bringing of most de minimus lawsuits. And having practiced in the United States District Courts in these type of cases, may I say we are acutely aware of the requirements of Rule 11, and we are going to be absolutely certain of our cases before they are pled and they are brought. Turning to the facts of this case, again I believe that my opponent continues to misjudge the standard of evidence in the light most favorable to the Petitioner. He states that our own expert testified that the seizure was appropriate, but if you will look closely at the record you will find that this testimony occurred during a voir dire hearing, if I'm correct, as to his expertise in which he was posed a hypothetical question which he did not posit with any and all of the facts subsequently brought into the case. And at another time, when presented another hypothetical case, with all the... hypothetical question... with all the pertinent factors in, stated that in his opinion the seizure of the Petitioner was improper. My opponent in this matter would have this Court imply or approve an objective standard of reasonableness but something else test. That something else, we don't know exactly what it is. It's somewhere between the 8th Amendment requirement and the objective standard of reasonableness. This Court clearly has never applied subjective factors such as here, except in the Albers situation. That case has been recently, and that decision... that malicious and sadistic, an intent to harm... has been recently reaffirmed by this Court no later today, and the decision to deny certiorari in the case of Dudley v. Stubbs. There Justice O'Connor, even for speaking in dissent, for the three Justices in dissent, clearly recognizes there that there is a distinction between the willful indifference test in the nonriot situation and the substantive condition in the prison riot situation. The only purposes of the dissent is to say in that factual circumstance the dissenters feel that sufficient evidence was presented of a prison riot-type situation. There is absolutely no reason, as Judge Butzner says in his dissent, and this Court has never at any time even hinted, that the substantial wall against liability created in cases involving convicted prisoners should be applied to free and innocent citizens. We ask you not to apply such a standard.
William H. Rehnquist: Thank you, Mr. Beaver. The case is submitted.
Speaker: The Honorable Court is now adjourned until tomorrow at ten o'clock [= 10:00].