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Remembering Attica: Twenty Years Later
By Ed Mead
On September 13, 1978, prisoners at Walla Walla celebrated Attica Day by holding a sparsely attended memorial talent show in the prison's auditorium. On September 13, 1979, the Washington Coalition Against Prisons (WaCAP) braved heavy rain to stage a rally in Olympia to protest overcrowding and other oppressive aspects of Washington's prison system. On September 13, 1980, the annual Attica Day event in Washington state took the form of a conference in Seattle on prison work. There has not been an Attica Day celebration in this state since.
This September 13th marks the 20th anniversary of the Attica uprising. It is a good time for prisoners to ask "Why an Attica Day?" There are several good reasons. First, it is important for prisoners still working for progress to honor their comrades who have fallen in the struggle for justice. Secondly, it is essential for us on the inside to understand the lessons of Attica, both positive and negative, so that such loses can be minimized in the future. Thirdly, the uprising at Attica represents a symbol of resistance and the birth of greater prisoners' movement.
To appreciate the events at Attica it is first necessary to put them in proper political and historical context. Today many prisoners view justice as nothing more than a cop's bullet in the back or as endless years of meaningless confinement. That's bourgeois justice. What the brothers at Attica were fighting for is proletarian justice, which is an end to the system that perpetuates the destructive cycle that imprisonment represents. They wanted us to see their rebellion as one battle in a continuous struggle waged on an international level, not just one isolated incident.
The Attica uprising was a spontaneous event. It happened because the material conditions for resistance was ripe. There had been political study groups in most of the major wings, and prisoner consciousness had been developed to a point where the entire population could act as a single fist. Sam Melville, an Attica prisoner, had been publishing a little underground paper he wrote by hand, with as many carbon copies as he could make. It was called the Iced Pig.
Well thought out demands had been drawn up and submitted to the state's corrections bureaucracy for resolution. When no action was taken by officials, prisoners backed their demands with a ten-day peaceful work strike. The strike ended with a shopping cart full of pious promises that were never honored. Then, on August 21, 1971, when George Jackson was murdered at San Quentin, Attica cons wore black armbands and boycotted the messhaII for a day. All of these actions reflected a high degree of political unity.
On September 9, 1971, less than a month after the boycott, a fight broke out in one of the wings. Through an unusual combination of circumstances, such as prisoners inadvertently gaining access to an important gate, the fight erupted into a riot and takeover of sections of the prison, including D Yard. Even though the rebellion was not planned, D Yard prisoners quickly and efficiently organized themselves into a commune. They had no weapons to speak of (a few homemade shanks) and their level of outside support was negligible.
The rebelling prisoners seemed to be aware of their weaknesses, as they immediately called upon cons in other New York prisons and the progressive community on the outside to back their play. This call was made through the mass media, the presence of which was a precondition to negotiations. Another precondition was the formation of an observer team selected by the prisoners. These and other threshold demands indicate how conscious the prisoners were of their vulnerability; they also reflected a deep level of understanding as to what was necessary to overcome their weaknesses.
The observer team consisted of liberals like Tom Wicker of the New York Times and radicals from leftist political organizations, like Jesse Jackson. While the media and observer team were successful in terms of winning a substantial amount of public opinion in favor of the prisoners, the men in D Yard needed more than moral support. No other prisons went down. And the left did nothing to support the brothers. To top it all off, when push came to shove, when the state told the observer team to clear the yard so they could launch their attack on the prisoners, these observers, the same men who had been championing the cause of the prisoners in the press, left the yard and thus exposed the brothers to the guns of the state. They were slaughtered at the hands of state police and prison guards behind those guns. Forty-three people were killed.
Of course ultimate responsibility for the massacre at Attica belongs in the lap of then governor Rockefeller, whose whole family maintains its position in the ruling class by the murder (e.g., the 1914 Ludowe, Colorado, massacre of miners) and exploitation of poor and working people. Even so, Rockefeller would have been hard pressed to order the attack if those claiming to be supportive of the struggle had actively been so. Besides leaving the prisoner; vulnerable by not joining them in the yard, the radicals and left leaders failed to mobilize the extensive progressive community in New York City. These people and the loved ones of the men inside could have surrounded the prison in a non-violent vigil until the conflict was resolved. Moreover due to a long and deeply entrenched tradition of opportunism, the left did not possess the capacity to defend people like the Attica Brothers with all levels of support. Given these weaknesses, it is easy to see why Rockefeller thought he could get away with ordering the September 13th military attack on the unarmed prisoners.
The tactic implemented by the prisoners of Attica, although it exposed the naked violence of the state to a complacent public and raised prisoners consciousness to a higher level, was a political defeat - and a very expensive one at that. This is not to say that D Yard prisoners were all wrong. There were both positive and negative aspects to the uprising. In order to glean the lessons, however, we must examine the negative, the weaknesses, in an effort to transform weakness into strength. That's what the struggle is all about; fight, learn, fight some more, learn some more, and so on until victory.
One central weakness of Attica stands out above all others: the general absence of prisoner organization until after the uprising was an accomplished fact. Of course people sometimes erupt into spontaneous and violent resistance to their oppressors - who can blame them. But if the object is to win, as it must be, then political action should be organized and disciplined and guided by advanced political theory. And when these things exist, it is not necessary to resort to such self-destructive tactics as those used at Attica.
The high degree of political consciousness possessed by the Attica rebels is reflected in their demand for transportation to a non-imperialist country. Yet either because of a lack of patience or allowing unfolding events to get ahead of them, they did not build any formal organization prior to the revolt. With the necessary organization and theory, they could have organized themselves then other state institutions, developed trained outside support networks, and otherwise set the stage for a long term mass struggle.
Naturally it is easier to view past events from the comfortable perspective of hindsight than it is to actually participate in a complex experience like the uprising at Attica. Nothing said here should be construed to detract from the strong spirit of the comrades who made those terrible sacrifices in D Yard. But since Attica did happen, future generations of prisoners can learn from the experience. The Attica cons went too far too fast; moving without taking the time to build a broad base of' support. The state's response was to ruthlessly smash these budding efforts to resist, a job that was made easier through the exploitation of prisoner weaknesses.
As mentioned earlier, this September 13th marks the twentieth year since the massacre at Attica, an anniversary that should be honored by prisoners everywhere. These twenty years have not been good ones in terrns of progress for prisoners. Dozens of prisons have experienced riots and hostage takings during this period; most of which ended in the loss of prisoner lives (either by their captors or, as in the case of New Mexico, at the hands of their fellow prisoners). There is little to indicate that the lessons of Attica have been learned, let alone internalized. As a result the situation today is far worse in most respects than it was then. There is no decent level of outside support. Prisoners are not organized by institution, let alone on a statewide or national level. And the current degree of political sophistication on the inside is shallow at best and in most joints downright reaction reigns supreme. It doesn't appear as if this will change any time soon.
Who is to blame for today's material conditions? If one put the finger on opportunist leadership they would probably not be far off the mark But a more important question to ask is where to from here? This writer has not run across anyone with all the answers. Still, a few general lessons can be drawn from past experience.
First of all, the advocates of "off the pigs" and "bum it to the ground" should have their perspectives examined in the light of reality. They burned McAlester down in the early'70s, but has that improved the lot of prisoners there? No! The same for New Mexico. Prisoners in those and other joints are still overcrowded, degraded, powerless, and no nearer to making forward progress. Similarly, prisoners in California have been killing guards (when they aren't busy murdering each other) for years without any substantial change resulting from it. Instead of acts against low level flunkies or quickly replaced prison property, people should prepare for the long range struggle that lies ahead.
One area of important work that can be done now is the formation of study groups aimed at deepening our understanding of progressive political theory. PLN will soon be offering books on the philosophy of dialectical and historical materialism. Unlike organizing on the inside, studying politics is an area of activity protected by the first amendment. Building such study groups will be an important step for those who would hope to pick up and carry the banner of Attica.
[Editor's Note: The lawsuit for damages stemming from the Attica assault is finally going to trial, 20 years later! See Al-Jundi v. Mancusi, 926 F.2d 235 (2nd Cir. 1991)
On September 13, 1978, prisoners at Walla Walla celebrated Attica Day by holding a sparsely attended memorial talent show in the prison's auditorium. On September 13, 1979, the Washington Coalition Against Prisons (WaCAP) braved heavy rain to stage a rally in Olympia to protest overcrowding and other oppressive aspects of Washington's prison system. On September 13, 1980, the annual Attica Day event in Washington state took the form of a conference in Seattle on prison work. There has not been an Attica Day celebration in this state since.
This September 13th marks the 20th anniversary of the Attica uprising. It is a good time for prisoners to ask "Why an Attica Day?" There are several good reasons. First, it is important for prisoners still working for progress to honor their comrades who have fallen in the struggle for justice. Secondly, it is essential for us on the inside to understand the lessons of Attica, both positive and negative, so that such loses can be minimized in the future. Thirdly, the uprising at Attica represents a symbol of resistance and the birth of greater prisoners' movement.
To appreciate the events at Attica it is first necessary to put them in proper political and historical context. Today many prisoners view justice as nothing more than a cop's bullet in the back or as endless years of meaningless confinement. That's bourgeois justice. What the brothers at Attica were fighting for is proletarian justice, which is an end to the system that perpetuates the destructive cycle that imprisonment represents. They wanted us to see their rebellion as one battle in a continuous struggle waged on an international level, not just one isolated incident.
The Attica uprising was a spontaneous event. It happened because the material conditions for resistance was ripe. There had been political study groups in most of the major wings, and prisoner consciousness had been developed to a point where the entire population could act as a single fist. Sam Melville, an Attica prisoner, had been publishing a little underground paper he wrote by hand, with as many carbon copies as he could make. It was called the Iced Pig.
Well thought out demands had been drawn up and submitted to the state's corrections bureaucracy for resolution. When no action was taken by officials, prisoners backed their demands with a ten-day peaceful work strike. The strike ended with a shopping cart full of pious promises that were never honored. Then, on August 21, 1971, when George Jackson was murdered at San Quentin, Attica cons wore black armbands and boycotted the messhaII for a day. All of these actions reflected a high degree of political unity.
On September 9, 1971, less than a month after the boycott, a fight broke out in one of the wings. Through an unusual combination of circumstances, such as prisoners inadvertently gaining access to an important gate, the fight erupted into a riot and takeover of sections of the prison, including D Yard. Even though the rebellion was not planned, D Yard prisoners quickly and efficiently organized themselves into a commune. They had no weapons to speak of (a few homemade shanks) and their level of outside support was negligible.
The rebelling prisoners seemed to be aware of their weaknesses, as they immediately called upon cons in other New York prisons and the progressive community on the outside to back their play. This call was made through the mass media, the presence of which was a precondition to negotiations. Another precondition was the formation of an observer team selected by the prisoners. These and other threshold demands indicate how conscious the prisoners were of their vulnerability; they also reflected a deep level of understanding as to what was necessary to overcome their weaknesses.
The observer team consisted of liberals like Tom Wicker of the New York Times and radicals from leftist political organizations, like Jesse Jackson. While the media and observer team were successful in terms of winning a substantial amount of public opinion in favor of the prisoners, the men in D Yard needed more than moral support. No other prisons went down. And the left did nothing to support the brothers. To top it all off, when push came to shove, when the state told the observer team to clear the yard so they could launch their attack on the prisoners, these observers, the same men who had been championing the cause of the prisoners in the press, left the yard and thus exposed the brothers to the guns of the state. They were slaughtered at the hands of state police and prison guards behind those guns. Forty-three people were killed.
Of course ultimate responsibility for the massacre at Attica belongs in the lap of then governor Rockefeller, whose whole family maintains its position in the ruling class by the murder (e.g., the 1914 Ludowe, Colorado, massacre of miners) and exploitation of poor and working people. Even so, Rockefeller would have been hard pressed to order the attack if those claiming to be supportive of the struggle had actively been so. Besides leaving the prisoner; vulnerable by not joining them in the yard, the radicals and left leaders failed to mobilize the extensive progressive community in New York City. These people and the loved ones of the men inside could have surrounded the prison in a non-violent vigil until the conflict was resolved. Moreover due to a long and deeply entrenched tradition of opportunism, the left did not possess the capacity to defend people like the Attica Brothers with all levels of support. Given these weaknesses, it is easy to see why Rockefeller thought he could get away with ordering the September 13th military attack on the unarmed prisoners.
The tactic implemented by the prisoners of Attica, although it exposed the naked violence of the state to a complacent public and raised prisoners consciousness to a higher level, was a political defeat - and a very expensive one at that. This is not to say that D Yard prisoners were all wrong. There were both positive and negative aspects to the uprising. In order to glean the lessons, however, we must examine the negative, the weaknesses, in an effort to transform weakness into strength. That's what the struggle is all about; fight, learn, fight some more, learn some more, and so on until victory.
One central weakness of Attica stands out above all others: the general absence of prisoner organization until after the uprising was an accomplished fact. Of course people sometimes erupt into spontaneous and violent resistance to their oppressors - who can blame them. But if the object is to win, as it must be, then political action should be organized and disciplined and guided by advanced political theory. And when these things exist, it is not necessary to resort to such self-destructive tactics as those used at Attica.
The high degree of political consciousness possessed by the Attica rebels is reflected in their demand for transportation to a non-imperialist country. Yet either because of a lack of patience or allowing unfolding events to get ahead of them, they did not build any formal organization prior to the revolt. With the necessary organization and theory, they could have organized themselves then other state institutions, developed trained outside support networks, and otherwise set the stage for a long term mass struggle.
Naturally it is easier to view past events from the comfortable perspective of hindsight than it is to actually participate in a complex experience like the uprising at Attica. Nothing said here should be construed to detract from the strong spirit of the comrades who made those terrible sacrifices in D Yard. But since Attica did happen, future generations of prisoners can learn from the experience. The Attica cons went too far too fast; moving without taking the time to build a broad base of' support. The state's response was to ruthlessly smash these budding efforts to resist, a job that was made easier through the exploitation of prisoner weaknesses.
As mentioned earlier, this September 13th marks the twentieth year since the massacre at Attica, an anniversary that should be honored by prisoners everywhere. These twenty years have not been good ones in terrns of progress for prisoners. Dozens of prisons have experienced riots and hostage takings during this period; most of which ended in the loss of prisoner lives (either by their captors or, as in the case of New Mexico, at the hands of their fellow prisoners). There is little to indicate that the lessons of Attica have been learned, let alone internalized. As a result the situation today is far worse in most respects than it was then. There is no decent level of outside support. Prisoners are not organized by institution, let alone on a statewide or national level. And the current degree of political sophistication on the inside is shallow at best and in most joints downright reaction reigns supreme. It doesn't appear as if this will change any time soon.
Who is to blame for today's material conditions? If one put the finger on opportunist leadership they would probably not be far off the mark But a more important question to ask is where to from here? This writer has not run across anyone with all the answers. Still, a few general lessons can be drawn from past experience.
First of all, the advocates of "off the pigs" and "bum it to the ground" should have their perspectives examined in the light of reality. They burned McAlester down in the early'70s, but has that improved the lot of prisoners there? No! The same for New Mexico. Prisoners in those and other joints are still overcrowded, degraded, powerless, and no nearer to making forward progress. Similarly, prisoners in California have been killing guards (when they aren't busy murdering each other) for years without any substantial change resulting from it. Instead of acts against low level flunkies or quickly replaced prison property, people should prepare for the long range struggle that lies ahead.
One area of important work that can be done now is the formation of study groups aimed at deepening our understanding of progressive political theory. PLN will soon be offering books on the philosophy of dialectical and historical materialism. Unlike organizing on the inside, studying politics is an area of activity protected by the first amendment. Building such study groups will be an important step for those who would hope to pick up and carry the banner of Attica.
[Editor's Note: The lawsuit for damages stemming from the Attica assault is finally going to trial, 20 years later! See Al-Jundi v. Mancusi, 926 F.2d 235 (2nd Cir. 1991)
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Related legal case
Al-Jundi v. Mancusi
| Year | 1991 |
|---|---|
| Cite | 926 F.2d 235 (2nd Cir. 1991) |
| Level | Court of Appeals |
Al-Jundi v. Mancusi, 926 F.2d 235 (2nd Cir. 02/27/1991)
[1] UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[2] Nos. 90-2287, 90-2289, 90-2291
[3] 1991, 926 F.2d 235
[4] decided: February 27, 1991.
[5] AKIL AL-JUNDI, ET AL., PLAINTIFFS-APPELLEES,
v.
VINCENT MANCUSI, KARL PFEIL, RUSSELL G. OSWALD, DEFENDANTS-APPELLANTS, THE ESTATE OF NELSON A. ROCKFELLER, ET AL., DEFENDANTS
[6] Appeal by corrections officials from the June 26, 1990, order of the District Court for the Western District of New York (John T. Elfvin, Judge) denying motion for summary judgment on grounds of qualified immunity in suit seeking damages for actions occurring during and after the Attica prison riot.
[7] John H. Stenger, Buffalo, New York (Kathy R. Lamb, Jaeckle, Fleischmann & Mugel, Buffalo, New York, on the brief), for defendant-appellant Oswald.
[8] Richard E. Moot, Buffalo, New York (Darryl J. Colosi, Judith M. Bell, Moot & Sprague, Buffalo, New York, on the brief), for defendant-appellant Mancusi.
[9] Irving C. Maghran, Jr., Buffalo, New York (Mahgran McCarthy & Flynn, Buffalo, New York, on the brief), for defendant-appellant Pfeil.
[10] Elizabeth M. Fink, Brooklyn, New York (Dennis Cunningham, Brooklyn, New York; Michael E. Deutsch, Chicago, Illinois, on the brief), for plaintiffs-appellees.
[11] Kaufman, Jon O. Newman, and McLaughlin, Circuit Judges.
[12] Author: Newman
[13] NEWMAN, Circuit Judge
[14] The issue on this appeal is whether three senior corrections officials of the State of New York are entitled to avoid trial, on grounds of qualified immunity, in a suit brought by victims of the violence that occurred at the Attica Correctional Facility in 1971. See Inmates of Attica Correctional Facility v. Rockefeller, 453 F.2d 12, 22-24 (2d Cir. 1971) (granting preliminary injunction restraining state officials from engaging in torture, beatings, and other physical abuse). The issue arises on an appeal by Russell G. Oswald, former Corrections Commissioner, Vincent Mancusi, former Superintendent of Attica, and Karl Pfeil, former Assistant Deputy Superintendent of Attica, from the June 26, 1990, order of the District Court for the Western District of New York (John T. Elfvin, Judge) denying their motion seeking summary judgment on grounds of qualified immunity. We affirm in part, reverse in part, and remand for trial.
[15] Background
[16] The background facts underlying the tragic episode with which the name "Attica" is likely to be forever identified are by now familiar. We have set them forth in our early decision upholding preliminary injunction, Inmates of Attica Correctional Facility v. Rockefeller, supra, and in our more recent decision affirming dismissal of the lawsuit against the estate of former Governor Rockefeller, Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060 (2d Cir. 1989). It suffices to recall that on September 9, 1971, more than 1,200 inmates at Attica rioted and seized control of portions of the prison, and some of them seized corrections officers as hostages. Some of the seized portions were retaken the same day, but prisoners continued to occupy an area known as D-Yard. On September 13, after negotiations failed, Oswald received permission from the Governor to order the State Police to retake the prison by force. The retaking, organized by the State Police, resulted in the deaths of ten hostages and twenty-nine prisoners. Afterwards, several prisoners were the victims of brutal reprisals.
[17] The amended complaint, filed in 1975, alleged denials of constitutional rights arising from three phases of the operation: the plan to retake the prison and the implementation of that plan, the brutality inflicted upon the inmates thereafter as reprisals, and the prosecution of inmates for crimes committed during the riot. By the time the qualified immunity defense of the three appellants was submitted for the ruling that is challenged on this appeal, the first portion of the amended complaint had been dismissed against Mancusi and Pfiel, and the third portion had been dismissed against Pfiel. In the immunity ruling, Judge Elfvin dismissed the third portion against Oswald and Mancusi. Thus, what remains for trial are the first portion (the planning) as against Oswald and the second portion (the reprisals) as against all three appellants.*fn1 Whether qualified immunity was established as a matter of law as to these aspects of the amended complaint is the subject of this appeal.
[18] Discussion
[19] Qualified immunity is available on motion for summary judgment if it appears, from undisputed facts, that an officer's conduct did not violate constitutional rights that were clearly established at the time of his actions, or if it was objectively reasonable for him to believe that his actions did not violate such rights. See Anderson v. Creighton, 483 U.S. 635, 638-40, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982); Robison v. Via, 821 F.2d 913, 920-21 (2d Cir. 1987). Prisoners' Eighth Amendment right to be free from brutal treatment had been recognized prior to the Attica riot, see Wright v. McMann, 387 F.2d 519, 525-26 (2d Cir. 1967). The Supreme Court has more recently cautioned that the "deliberate indifference" standard applicable to prisoners' medical claims does not apply to "making and carrying out decisions involving the use of force to restore order in the face of a prison disturbance." Whitley v. Albers, 475 U.S. 312, 320, 89 L. Ed. 2d 251, 106 S. Ct. 1078 (1986). In that context, the test is "'whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.'" Id. at 320-21 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S. Ct. 462, 38 L. Ed. 2d 324 (1973)). This more exacting standard is imposed not to foster brutality that results from deliberate indifference but to lessen the risk of harm to both prisoners and prison personnel that might result if those responsible for restoring order in the context of prison riots became hesitant to act promptly and effectively in apprehension of liability too easily imposed.
[20] Since the contours of the Eighth Amendment's protection in the context of a prison riot were not authoritatively delineated until the Supreme Court's 1986 decision in Albers, it is arguable that qualified immunity insulates appellants from liability for any consequences of the decision to retake the prison and of the methods used in the course of the retaking. But we do not understand appellants' argument to press so far, and we would not find such an argument persuasive. Albers did not recognize "a constitutional right that had not yet been declared," see Procunier v. Navarette, 434 U.S. 555, 565, 55 L. Ed. 2d 24, 98 S. Ct. 855 (1978). Rather, it narrowed the scope of a right previously recognized. Thus, appellants cannot and do not contend that they could not reasonably be expected to know that there were constitutional limits on a prison administrator's response to a prison riot. However, they can and do contend that the standard announced in Albers governs this case, and they further assert that they are entitled to immunity because it was objectively reasonable for them to believe that their actions did not violate the constitutional rights of the plaintiffs, as refined in the Albers decision.
[21] In assessing this claim, we cannot apply the heightened Albers standard indiscriminately to all aspects of the conduct alleged to have been taken or condoned by the appellants during the events at Attica. Albers insisted that the "deliberate indifference" standard applicable to many Eighth Amendment claims of prisoners must give way in the prison riot context to the "wanton infliction of pain" standard when evaluating a claim concerning the use of force in retaking a prison. As the Court noted, from such considerations as " 'the need for the application of force, the relationship between the need and the amount of force that was used, [and] the extent of injury inflicted,'. . . inferences may be drawn as to whether the use of force could plausibly have been thought necessary, or instead evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur." 475 U.S. at 321 (quoting District Court, 546 F. Supp. 726, 733 (D. Ore. 1982)). The use of force to retake the prison is the essence of the first category of the prisoners' amended complaint, and there can be no doubt that the Albers standard applies to all aspects of the decision to use force in accomplishing the task and in the implementation of that decision. Albers does not mean that a prison riot affords prison administrators limitless authority to employ any means, no matter how brutal, to restore order. It does mean that the decision to use force and the extent of force employed are to be assessed, for purposes of asserted Eighth Amendment violations, under the heightened standard of whether injury and pain were wantonly inflicted "for the very purpose of causing harm." However, this heightened standard, framed to assure prompt and effective action to use necessary force to restore order, does not apply to actions of prison officials unrelated to the decisions about whether and how to use force for that purpose. Thus, in this case, we will apply Albers faithfully to those aspects of appellants' conduct implicated in the use of force to retake the Attica prison, but we will not go beyond traditional Eighth Amendment standards in assessing, for purposes of qualified immunity, those aspects of their alleged conduct that are fairly separable from decisions regarding the use of force.
[22] Applying this approach, we turn to the first category of the amended complaint, the allegations against Oswald for his alleged role in the plan to retake the prison. Oswald contends, in an argument focusing more on liability than on the defense of immunity, that he bears no responsibility for the adoption and implementation of the retaking plan because the decision to order a retaking was made by Governor Rockefeller and the formulation and implementation of the specific plan for the retaking was the responsibility of Major Monahan of the State Police. If the liability aspects of the claim against Oswald were before us on this limited appeal, which concerns only the immunity defense, we would doubt that Oswald would be insulated from responsibility for lack of personal involvement. There appears to be sufficient evidence to support findings that he was the senior corrections official on the scene, that he was aware of the retaking plan, and that he had discussed with Monahan at least some of the specific details of the plan.
[23] However, with the exception of the planning for medical care, the deficiencies in the recapture plan alleged by the plaintiffs do not overcome the immunity defense, assessed under the standards of Albers. For example, Oswald is faulted because the plan did not include an ultimatum to the prisoners prior to the attack, because he authorized an assault by a large force of armed men even though the prisoners were first subjected to a barrage of CS tear gas, and because he permitted correctional officers to participate as "backup" to the state police despite the extreme hostility the officers bore toward the prisoners as a result of the takeover and the threats to the hostages. Each of these aspects of the plan, even if attributable to Oswald, might be found to constitute negligence, and some might even be found to show deliberate indifference to the likelihood that harm would result. But, after Albers, that is not sufficient. To establish liability, there must be evidence to show that these aspects of the assault plan were included wantonly for the purpose of inflicting pain, and to overcome the immunity defense, there must be evidence permitting a finding that it was not objectively reasonable for Oswald to believe that the plan did not involve the wanton inflicting of pain. The decision not to issue an ultimatum is precisely the sort of tactical matter on which "neither judge nor jury [may] freely substitute their judgment for that of officials who have made a considered choice." Albers, 475 U.S. at 322. The decision required weighing the enhanced likelihood of surrender against the enhanced likelihood of precipitating action against the hostages and of enabling the prisoners to improve their defense against the assault. Similarly, whether to use 150 men, as Monahan determined to be necessary, or to use fewer, as plaintiffs believe would have been sufficient, is a choice carrying no inference as to the wanton infliction of pain.
[24] Closer to the line is the decision not to preclude the use of corrections officers entirely from the assault, but here again, tactical choices needed to be made; the use of corrections officers, even as backup, posed a risk of aggressive conduct, but the failure to use them posed a risk of prolonging the battle between state police and armed prisoners, with dire consequences for all concerned. In terms of the immunity defense, we conclude that no reasonable jury could find that Oswald did not have objectively reasonable grounds for believing that the decision to retake the prison and the plan for doing so did not involve the wanton infliction of pain. The defense of qualified immunity as to these portions of the complaint must be upheld.
[25] The alleged deficiency in planning for the medical needs of the prisoners stands on a different footing. Once it was decided to retake the prison by force, the duty to make adequate provision for medical needs arose to at least the same extent as it does with respect to the normal operation of a prison. The Albers standard applies to the decision to use force and the means selected for implementing that decision, but not to the normal obligations of prison officials to meet the minimal needs of those in their custody. Thus, Oswald can be found liable if evidence shows that he was deliberately indifferent to the medical needs that could reasonably be expected to arise in the aftermath of the assault. And Oswald can obtain immunity on a motion for summary judgment only if undisputed evidence shows that it was objectively reasonable for him to believe that his conduct, with respect to planning for medical needs, satisfied at least the constitutional standards of Estelle v. Gamble, 429 U.S. 97, 104, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976) (deliberate indifference to serious medical needs is cruel and unusual punishment). See Martinez v. Mancusi, 443 F.2d 921 (2d Cir. 1970), cert. denied, 401 U.S. 983, 91 S. Ct. 1202, 28 L. Ed. 2d 335 (1971) (anticipating standards of Estelle v. Gamble). We agree with Judge Elfvin that the evidence of Oswald's lack of attention to planning for medical needs creates jury issues and precludes sustaining, as a matter of law, a qualified immunity defense to this one aspect of the first portion of plaintiffs' allegations.
[26] We turn next to the second portion of the amended complaint, the allegations of condonation of brutal reprisals against the prisoners after the prison was retaken. There is no basis for applying the heightened Albers standard to these allegations. The latitude accorded prison officials in deciding when and how to use force to retake a prison from rioting inmates has no application to the summary infliction of brutal punishment once the riot is quelled. As to such conduct, appellants cannot establish an immunity defense on motion for summary judgment if any evidence shows that it was not objectively reasonable for them to believe that they were adhering to the constitutional standards that apply to prison officials in the administration of prison discipline.
[27] The prisoners make no claims that any of the appellants personally participated in the reprisals or directly ordered them to occur. With respect to Oswald, the claim is that he received reports of brutality and must have either observed brutality or deliberately avoided seeing it when he toured the prison about one hour after the assault ended, at a time when hundreds of inmates were allegedly being beaten and brutalized. These allegations find sufficient support in the evidence to withstand a motion for summary judgment on the issue of qualified immunity. With respect to Mancusi and Pfeil, one prisoner has submitted an affidavit that he saw both appellants observing brutal beatings being administered to himself and other prisoners, and the affidavit of another prisoner corroborates this account. Though appellants urge that these affidavits, filed on the eve of trial, are unworthy of belief, that argument is for the jury. Indeed, there is considerable irony in the argument of prison officials, who have in their custody scores of prisoners convicted on the testimony of disreputable criminals, that the testimony of criminals is incredible as a matter of law when it accuses them of unconstitutional conduct.
[28] Appellants' remaining contentions have nothing to do with the defense of qualified immunity, which is the subject of this interlocutory appeal, see Neu v. Corcoran, 869 F.2d 662, 664-65 (2d Cir.), cert. denied, 493 U.S. 816, 107 L. Ed. 2d 33, 110 S. Ct. 66 (1989), and we decline to consider them. However, we do express our concern that this case should be brought to trial at the earliest possible moment. At oral argument counsel for the plaintiffs assured us that they were ready for trial immediately following the disposition of this appeal. We urge the District Court to hold them to that commitment and to tolerate no delays by the defendants.
[29] The order of the District Court is affirmed in part and reversed in part, and the case is remanded for a prompt trial. The mandate shall issue forthwith.
[30] Disposition
[31] Affirmed in Part, Reversed in Part, and Remanded.
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Opinion Footnotes
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[32] *fn1 In addition, the first and second portions of the amended complaint are pending for trial as against the administrator of the estate of John Monahan, formerly a State Police major who planned and led the retaking of the prison. All other defendants have been dismissed for a variety of reasons, many for lack of service.
[1] UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[2] Nos. 90-2287, 90-2289, 90-2291
[3] 1991, 926 F.2d 235
[4] decided: February 27, 1991.
[5] AKIL AL-JUNDI, ET AL., PLAINTIFFS-APPELLEES,
v.
VINCENT MANCUSI, KARL PFEIL, RUSSELL G. OSWALD, DEFENDANTS-APPELLANTS, THE ESTATE OF NELSON A. ROCKFELLER, ET AL., DEFENDANTS
[6] Appeal by corrections officials from the June 26, 1990, order of the District Court for the Western District of New York (John T. Elfvin, Judge) denying motion for summary judgment on grounds of qualified immunity in suit seeking damages for actions occurring during and after the Attica prison riot.
[7] John H. Stenger, Buffalo, New York (Kathy R. Lamb, Jaeckle, Fleischmann & Mugel, Buffalo, New York, on the brief), for defendant-appellant Oswald.
[8] Richard E. Moot, Buffalo, New York (Darryl J. Colosi, Judith M. Bell, Moot & Sprague, Buffalo, New York, on the brief), for defendant-appellant Mancusi.
[9] Irving C. Maghran, Jr., Buffalo, New York (Mahgran McCarthy & Flynn, Buffalo, New York, on the brief), for defendant-appellant Pfeil.
[10] Elizabeth M. Fink, Brooklyn, New York (Dennis Cunningham, Brooklyn, New York; Michael E. Deutsch, Chicago, Illinois, on the brief), for plaintiffs-appellees.
[11] Kaufman, Jon O. Newman, and McLaughlin, Circuit Judges.
[12] Author: Newman
[13] NEWMAN, Circuit Judge
[14] The issue on this appeal is whether three senior corrections officials of the State of New York are entitled to avoid trial, on grounds of qualified immunity, in a suit brought by victims of the violence that occurred at the Attica Correctional Facility in 1971. See Inmates of Attica Correctional Facility v. Rockefeller, 453 F.2d 12, 22-24 (2d Cir. 1971) (granting preliminary injunction restraining state officials from engaging in torture, beatings, and other physical abuse). The issue arises on an appeal by Russell G. Oswald, former Corrections Commissioner, Vincent Mancusi, former Superintendent of Attica, and Karl Pfeil, former Assistant Deputy Superintendent of Attica, from the June 26, 1990, order of the District Court for the Western District of New York (John T. Elfvin, Judge) denying their motion seeking summary judgment on grounds of qualified immunity. We affirm in part, reverse in part, and remand for trial.
[15] Background
[16] The background facts underlying the tragic episode with which the name "Attica" is likely to be forever identified are by now familiar. We have set them forth in our early decision upholding preliminary injunction, Inmates of Attica Correctional Facility v. Rockefeller, supra, and in our more recent decision affirming dismissal of the lawsuit against the estate of former Governor Rockefeller, Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060 (2d Cir. 1989). It suffices to recall that on September 9, 1971, more than 1,200 inmates at Attica rioted and seized control of portions of the prison, and some of them seized corrections officers as hostages. Some of the seized portions were retaken the same day, but prisoners continued to occupy an area known as D-Yard. On September 13, after negotiations failed, Oswald received permission from the Governor to order the State Police to retake the prison by force. The retaking, organized by the State Police, resulted in the deaths of ten hostages and twenty-nine prisoners. Afterwards, several prisoners were the victims of brutal reprisals.
[17] The amended complaint, filed in 1975, alleged denials of constitutional rights arising from three phases of the operation: the plan to retake the prison and the implementation of that plan, the brutality inflicted upon the inmates thereafter as reprisals, and the prosecution of inmates for crimes committed during the riot. By the time the qualified immunity defense of the three appellants was submitted for the ruling that is challenged on this appeal, the first portion of the amended complaint had been dismissed against Mancusi and Pfiel, and the third portion had been dismissed against Pfiel. In the immunity ruling, Judge Elfvin dismissed the third portion against Oswald and Mancusi. Thus, what remains for trial are the first portion (the planning) as against Oswald and the second portion (the reprisals) as against all three appellants.*fn1 Whether qualified immunity was established as a matter of law as to these aspects of the amended complaint is the subject of this appeal.
[18] Discussion
[19] Qualified immunity is available on motion for summary judgment if it appears, from undisputed facts, that an officer's conduct did not violate constitutional rights that were clearly established at the time of his actions, or if it was objectively reasonable for him to believe that his actions did not violate such rights. See Anderson v. Creighton, 483 U.S. 635, 638-40, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982); Robison v. Via, 821 F.2d 913, 920-21 (2d Cir. 1987). Prisoners' Eighth Amendment right to be free from brutal treatment had been recognized prior to the Attica riot, see Wright v. McMann, 387 F.2d 519, 525-26 (2d Cir. 1967). The Supreme Court has more recently cautioned that the "deliberate indifference" standard applicable to prisoners' medical claims does not apply to "making and carrying out decisions involving the use of force to restore order in the face of a prison disturbance." Whitley v. Albers, 475 U.S. 312, 320, 89 L. Ed. 2d 251, 106 S. Ct. 1078 (1986). In that context, the test is "'whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.'" Id. at 320-21 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S. Ct. 462, 38 L. Ed. 2d 324 (1973)). This more exacting standard is imposed not to foster brutality that results from deliberate indifference but to lessen the risk of harm to both prisoners and prison personnel that might result if those responsible for restoring order in the context of prison riots became hesitant to act promptly and effectively in apprehension of liability too easily imposed.
[20] Since the contours of the Eighth Amendment's protection in the context of a prison riot were not authoritatively delineated until the Supreme Court's 1986 decision in Albers, it is arguable that qualified immunity insulates appellants from liability for any consequences of the decision to retake the prison and of the methods used in the course of the retaking. But we do not understand appellants' argument to press so far, and we would not find such an argument persuasive. Albers did not recognize "a constitutional right that had not yet been declared," see Procunier v. Navarette, 434 U.S. 555, 565, 55 L. Ed. 2d 24, 98 S. Ct. 855 (1978). Rather, it narrowed the scope of a right previously recognized. Thus, appellants cannot and do not contend that they could not reasonably be expected to know that there were constitutional limits on a prison administrator's response to a prison riot. However, they can and do contend that the standard announced in Albers governs this case, and they further assert that they are entitled to immunity because it was objectively reasonable for them to believe that their actions did not violate the constitutional rights of the plaintiffs, as refined in the Albers decision.
[21] In assessing this claim, we cannot apply the heightened Albers standard indiscriminately to all aspects of the conduct alleged to have been taken or condoned by the appellants during the events at Attica. Albers insisted that the "deliberate indifference" standard applicable to many Eighth Amendment claims of prisoners must give way in the prison riot context to the "wanton infliction of pain" standard when evaluating a claim concerning the use of force in retaking a prison. As the Court noted, from such considerations as " 'the need for the application of force, the relationship between the need and the amount of force that was used, [and] the extent of injury inflicted,'. . . inferences may be drawn as to whether the use of force could plausibly have been thought necessary, or instead evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur." 475 U.S. at 321 (quoting District Court, 546 F. Supp. 726, 733 (D. Ore. 1982)). The use of force to retake the prison is the essence of the first category of the prisoners' amended complaint, and there can be no doubt that the Albers standard applies to all aspects of the decision to use force in accomplishing the task and in the implementation of that decision. Albers does not mean that a prison riot affords prison administrators limitless authority to employ any means, no matter how brutal, to restore order. It does mean that the decision to use force and the extent of force employed are to be assessed, for purposes of asserted Eighth Amendment violations, under the heightened standard of whether injury and pain were wantonly inflicted "for the very purpose of causing harm." However, this heightened standard, framed to assure prompt and effective action to use necessary force to restore order, does not apply to actions of prison officials unrelated to the decisions about whether and how to use force for that purpose. Thus, in this case, we will apply Albers faithfully to those aspects of appellants' conduct implicated in the use of force to retake the Attica prison, but we will not go beyond traditional Eighth Amendment standards in assessing, for purposes of qualified immunity, those aspects of their alleged conduct that are fairly separable from decisions regarding the use of force.
[22] Applying this approach, we turn to the first category of the amended complaint, the allegations against Oswald for his alleged role in the plan to retake the prison. Oswald contends, in an argument focusing more on liability than on the defense of immunity, that he bears no responsibility for the adoption and implementation of the retaking plan because the decision to order a retaking was made by Governor Rockefeller and the formulation and implementation of the specific plan for the retaking was the responsibility of Major Monahan of the State Police. If the liability aspects of the claim against Oswald were before us on this limited appeal, which concerns only the immunity defense, we would doubt that Oswald would be insulated from responsibility for lack of personal involvement. There appears to be sufficient evidence to support findings that he was the senior corrections official on the scene, that he was aware of the retaking plan, and that he had discussed with Monahan at least some of the specific details of the plan.
[23] However, with the exception of the planning for medical care, the deficiencies in the recapture plan alleged by the plaintiffs do not overcome the immunity defense, assessed under the standards of Albers. For example, Oswald is faulted because the plan did not include an ultimatum to the prisoners prior to the attack, because he authorized an assault by a large force of armed men even though the prisoners were first subjected to a barrage of CS tear gas, and because he permitted correctional officers to participate as "backup" to the state police despite the extreme hostility the officers bore toward the prisoners as a result of the takeover and the threats to the hostages. Each of these aspects of the plan, even if attributable to Oswald, might be found to constitute negligence, and some might even be found to show deliberate indifference to the likelihood that harm would result. But, after Albers, that is not sufficient. To establish liability, there must be evidence to show that these aspects of the assault plan were included wantonly for the purpose of inflicting pain, and to overcome the immunity defense, there must be evidence permitting a finding that it was not objectively reasonable for Oswald to believe that the plan did not involve the wanton inflicting of pain. The decision not to issue an ultimatum is precisely the sort of tactical matter on which "neither judge nor jury [may] freely substitute their judgment for that of officials who have made a considered choice." Albers, 475 U.S. at 322. The decision required weighing the enhanced likelihood of surrender against the enhanced likelihood of precipitating action against the hostages and of enabling the prisoners to improve their defense against the assault. Similarly, whether to use 150 men, as Monahan determined to be necessary, or to use fewer, as plaintiffs believe would have been sufficient, is a choice carrying no inference as to the wanton infliction of pain.
[24] Closer to the line is the decision not to preclude the use of corrections officers entirely from the assault, but here again, tactical choices needed to be made; the use of corrections officers, even as backup, posed a risk of aggressive conduct, but the failure to use them posed a risk of prolonging the battle between state police and armed prisoners, with dire consequences for all concerned. In terms of the immunity defense, we conclude that no reasonable jury could find that Oswald did not have objectively reasonable grounds for believing that the decision to retake the prison and the plan for doing so did not involve the wanton infliction of pain. The defense of qualified immunity as to these portions of the complaint must be upheld.
[25] The alleged deficiency in planning for the medical needs of the prisoners stands on a different footing. Once it was decided to retake the prison by force, the duty to make adequate provision for medical needs arose to at least the same extent as it does with respect to the normal operation of a prison. The Albers standard applies to the decision to use force and the means selected for implementing that decision, but not to the normal obligations of prison officials to meet the minimal needs of those in their custody. Thus, Oswald can be found liable if evidence shows that he was deliberately indifferent to the medical needs that could reasonably be expected to arise in the aftermath of the assault. And Oswald can obtain immunity on a motion for summary judgment only if undisputed evidence shows that it was objectively reasonable for him to believe that his conduct, with respect to planning for medical needs, satisfied at least the constitutional standards of Estelle v. Gamble, 429 U.S. 97, 104, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976) (deliberate indifference to serious medical needs is cruel and unusual punishment). See Martinez v. Mancusi, 443 F.2d 921 (2d Cir. 1970), cert. denied, 401 U.S. 983, 91 S. Ct. 1202, 28 L. Ed. 2d 335 (1971) (anticipating standards of Estelle v. Gamble). We agree with Judge Elfvin that the evidence of Oswald's lack of attention to planning for medical needs creates jury issues and precludes sustaining, as a matter of law, a qualified immunity defense to this one aspect of the first portion of plaintiffs' allegations.
[26] We turn next to the second portion of the amended complaint, the allegations of condonation of brutal reprisals against the prisoners after the prison was retaken. There is no basis for applying the heightened Albers standard to these allegations. The latitude accorded prison officials in deciding when and how to use force to retake a prison from rioting inmates has no application to the summary infliction of brutal punishment once the riot is quelled. As to such conduct, appellants cannot establish an immunity defense on motion for summary judgment if any evidence shows that it was not objectively reasonable for them to believe that they were adhering to the constitutional standards that apply to prison officials in the administration of prison discipline.
[27] The prisoners make no claims that any of the appellants personally participated in the reprisals or directly ordered them to occur. With respect to Oswald, the claim is that he received reports of brutality and must have either observed brutality or deliberately avoided seeing it when he toured the prison about one hour after the assault ended, at a time when hundreds of inmates were allegedly being beaten and brutalized. These allegations find sufficient support in the evidence to withstand a motion for summary judgment on the issue of qualified immunity. With respect to Mancusi and Pfeil, one prisoner has submitted an affidavit that he saw both appellants observing brutal beatings being administered to himself and other prisoners, and the affidavit of another prisoner corroborates this account. Though appellants urge that these affidavits, filed on the eve of trial, are unworthy of belief, that argument is for the jury. Indeed, there is considerable irony in the argument of prison officials, who have in their custody scores of prisoners convicted on the testimony of disreputable criminals, that the testimony of criminals is incredible as a matter of law when it accuses them of unconstitutional conduct.
[28] Appellants' remaining contentions have nothing to do with the defense of qualified immunity, which is the subject of this interlocutory appeal, see Neu v. Corcoran, 869 F.2d 662, 664-65 (2d Cir.), cert. denied, 493 U.S. 816, 107 L. Ed. 2d 33, 110 S. Ct. 66 (1989), and we decline to consider them. However, we do express our concern that this case should be brought to trial at the earliest possible moment. At oral argument counsel for the plaintiffs assured us that they were ready for trial immediately following the disposition of this appeal. We urge the District Court to hold them to that commitment and to tolerate no delays by the defendants.
[29] The order of the District Court is affirmed in part and reversed in part, and the case is remanded for a prompt trial. The mandate shall issue forthwith.
[30] Disposition
[31] Affirmed in Part, Reversed in Part, and Remanded.
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Opinion Footnotes
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[32] *fn1 In addition, the first and second portions of the amended complaint are pending for trial as against the administrator of the estate of John Monahan, formerly a State Police major who planned and led the retaking of the prison. All other defendants have been dismissed for a variety of reasons, many for lack of service.