Whitley v. Albers

Decision Date04 March 1986
Docket NumberNo. 84-1077,84-1077
Citation475 U.S. 312,106 S.Ct. 1078,89 L.Ed.2d 251
PartiesHarol WHITLEY, Individually and as Assistant Superintendent, Oregon State Penitentiary, et al., Petitioners v. Gerald ALBERS
CourtU.S. Supreme Court

During the course of a riot at the Oregon State Penitentiary, a prison officer was taken hostage and placed in a cell on the upper tier of a two-tier cellblock. In an attempt to free the hostage, prison officials worked out a plan that called for the prisoner security manager to enter the cellblock unarmed, followed by prison officers armed with shotguns. The security manager ordered one of the officers to fire a warning shot and to shoot low at any inmates climbing the stairs to the upper tier since he would be climbing the stairs to free the hostage. One of the officers, after firing a warning shot, shot respondent in the left knee when he started up the stairs. Respondent subsequently brought an action in Federal District Court against petitioner prison officials pursuant to 42 U.S.C. § 1983, alleging, inter alia, that they had deprived him of his rights under the Eighth and Fourteenth Amendments. At the conclusion of the trial, the District Court directed a verdict for petitioners. The Court of Appeals reversed and remanded for a new trial on respondent's Eighth Amendment claim.


1. The shooting of respondent did not violate his Eighth Amendment right to be free from cruel and unusual punishments. Pp. 318-326.

(a) It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring control over a tumultuous cellblock. The infliction of pain in the course of a prison security measure, therefore, does not amount to cruel and unusual punishment simply because it may appear in retrospect that the degree of force authorized or applied for security purposes was unreasonable, and hence unnecessary in the strict sense. The general requirement that an Eighth Amendment claimant establish the unnecessary and wanton infliction of pain should also be applied with due regard for differences in the kind of conduct involved. Thus, where a prison security measure is undertaken to resolve a disturbance, such as occurred in this case, that poses significant risks to the safety of inmates and prison staff, the question whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on whether force was applied in a good-faith effort to maintain or restore discipline or maliciously and sadistically for the purpose of causing harm. Pp. 318-322.

(b) Viewing the evidence in the light most favorable to respondent, as must be done in reviewing the decision reversing the trial court's directed verdict for petitioners, it does not appear that the evidence supports a reliable inference of wantonness in the infliction of pain under the above standard. Evidence arguably showing that the prison officials erred in judgment when they decided on a plan that employed potentially deadly force, falls far short of a showing that there was no plausible basis for their belief that this degree of force was necessary. In particular, the order to shoot, qualified by an instruction to shoot low, falls short of commanding the infliction of pain in a wanton and unnecessary fashion. Nor was the failure to provide for a verbal warning, in addition to a warning shot, so insupportable as to be wanton, since any inmate running up the stairs after the prison security manager could reasonably be thought to pose a threat to the rescue attempt. And the failure to take into account the possibility that respondent might climb the stairs in an effort to return to his cell does not rise to the level of an Eighth Amendment violation. Assuming that the prison officer shot at respondent rather than at the inmates as a group does not establish that the officer shot respondent knowing that it was unnecessary to do so. Under all these circumstances, the shooting was part and parcel of a good-faith effort to restore prison security. Pp. 322-326.

2. In this case, the Due Process Clause of the Fourteenth Amendment cannot serve as an alternative basis for affirmance, independently of the Eighth Amendment. In the prison security context, the Due Process Clause affords respondent no greater protection than does the Cruel and Unusual Punishments Clause. P. 326-327.

743 F.2d 1372 (CA9, 1984), reversed.

O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, POWELL, and REHNQUIST, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, BLACKMUN, and STEVENS, JJ., joined, post, p. 328.

Dave Frohnmayer, Salem, Or., for petitioners.

Gene B. Mechanic, Portland, Or., for respondent.

Justice O'CONNOR delivered the opinion of the Court.

This case requires us to decide what standard governs a prison inmate's claim that prison officials subjected him to cruel and unusual punishment by shooting him during the course of their attempt to quell a prison riot.


At the time he was injured, respondent Gerald Albers was confined in cellblock "A" of the Oregon State Penitentiary. Cellblock "A" consists of two tiers of barred cells housing some 200 inmates. The two tiers are connected by a stairway that offers the only practical way to move from one tier to another.

At about 8:30 on the evening of June 27, 1980, several inmates were found intoxicated at the prison annex. Prison guards attempted to move the intoxicated prisoners, some of whom resisted, to the penitentiary's isolation and segregation facility. This incident could be seen from the cell windows in cellblock "A," and some of the onlookers became agitated because they thought that the guards were using unnecessary force. Acting on instructions from their superiors, Officers Kemper and Fitts, who were on duty in cellblock "A," ordered the prisoners to return to their cells. The order was not obeyed. Several inmates confronted the two officers, who were standing in the open area of the lower tier. One inmate, Richard Klenk, jumped from the second tier and assaulted Officer Kemper. Kemper escaped but Officer Fitts was taken hostage. Klenk and other inmates then began breaking furniture and milling about.

Upon being informed of the disturbance, petitioner Harol Whitley, the prison security manager, entered cellblock "A" and spoke with Klenk. Captain Whitley agreed to permit four residents of cellblock "A" to view the inmates who had been taken to segregation earlier. These emissaries reported back that the prisoners in segregation were intoxicated but unharmed. Nonetheless, the disturbance in cellblock "A" continued.

Whitley returned to the cellblock and confirmed that Fitts was not harmed. Shortly thereafter, Fitts was moved from an office on the lower tier to cell 201 on the upper tier, and Klenk demanded that media representatives be brought into the cellblock. In the course of the negotiations, Klenk, who was armed with a homemade knife, informed Whitley that one inmate had already been killed and other deaths would follow. In fact, an inmate had been beaten but not killed by other prisoners.

Captain Whitley left the cellblock to organize an assault squad. When Whitley returned to cellblock "A," he was taken to see Fitts in cell 201. Several inmates assured Whitley that they would protect Fitts from harm, but Klenk threatened to kill the hostage if an attempt was made to lead an assault. Klenk and at least some other inmates were aware that guards had assembled outside the cellblock and that shotguns had been issued. Meanwhile, respondent had left his cell on the upper tier to see if elderly prisoners housed on the lower tier could be moved out of harm's way in the event that tear gas was used. Respondent testified that he asked Whitley for the key to the row of cells housing the elderly prisoners, and Whitley indicated that he would return with the key. Whitley denied that he spoke to respondent at any time during the disturbance. Tr. 380.

Whitley next consulted with his superiors, petitioners Cupp, the prison Superintendent, and Kenney, the Assistant Superintendent. They agreed that forceful intervention was necessary to protect the life of the hostage and the safety of the inmates who were not rioting, and ruled out tear gas as an unworkable alternative. Cupp ordered Whitley to take a squad armed with shotguns into cellblock "A."

Whitley gave the final orders to the assault team, which was assembled in the area outside cellblock "A." Petitioner Kennicott and two other officers armed with shotguns were to follow Whitley, who was unarmed, over the barricade the inmates had constructed at the cellblock entrance. A second group of officers, without firearms, would be behind them. Whitley ordered Kennicott to fire a warning shot as he crossed the barricade. He also ordered Kennicott to shoot low at any prisoners climbing the stairs toward cell 201, since they could pose a threat to the safety of the hostage or to Whitley himself, who would be climbing the stairs in an attempt to free the hostage in cell 201.

At about 10:30 p.m., Whitley reappeared just outside the barricade. By this time, about a half hour had elapsed since the earlier breaking of furniture, and the noise level in the cellblock had noticeably diminished. Respondent, who was standing at the bottom of the stairway, asked about the key. Whitley replied "No," clambered over the barricade, yelled "shoot the bastards," and ran toward the stairs after Klenk, who had been standing in the open areaway along with a number of other inmates. Kennicott fired a warning shot into the wall opposite the cellblock entrance as he followed Whitley over the barricade. He then fired a second shot that struck a post near the stairway. Meanwhile,...

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