Judge Pryor and Hope v. Pelzer

Several weeks ago Nathan at Sollicitudo Rei Socialis laid out his reasoning why Judge William Pryor should be denied a seat on the 11th Circuit Court of Appeals and why Catholics should not support him. President Bush nominated then Alabama Attorney General Pryor to the bench in 2003. He was filibustered by Senate Democrats, but the president recess appointed him to the 11th Circuit where he has served for the last year. In addition, following re-election the president re-nominated now Judge Pryor. Nathan published his concerns following Judge Pryor's renomination and added to them following the death of Terry Schiavo. It was the 11th Circuit Court which denied Terry's parents a motion to reconsider and Nathan believed then that Judge Pryor voted with the majority of the Court to deny the petition. I showed that was not necessarily true, which Nathan accepted. He feels that there is some "circumstantial" evidence to suggest Judge Pryor voted with the majority, but that we cannot know for sure. Now with the Senate heating up over the president's filibustered nominees Nathan is once again airing his concerns about Judge Pryor, as well as Judge Priscilla Owen and Judge Janice Rogers Brown.

One point Nathan brought up about Judge Pryor which I never was able to address was the charge that he defended torture. Here is what Nathan wrote concerning an Alabama case which went all the way to the Supreme Court.

In Hope v. Pelzer, Bill Pryor defended Alabama's practice of handcuffing prison inmates to hitching posts in the hot sun if they refused to work on chain gangs or otherwise disrupted them. The Supreme Court, thankfully, rejected Pryor's insidious argument. The practice of both the hitching post and the chain gang constitutes cruel and unusual punishment in the United States Constitution, and it is certainly inconsistent with Catholic social teaching.

At the time I knew nothing about the case, so I did not comment on it. Nathan called me on it twice:

Is his defense of "the hitching post" and "chain gangs" in Hope v. Pelzer consistent with Catholic social teaching? (I would particularly like to hear your opinion on this; I consider this by far his most serious offense and the point which absolutely cannot be reconciled with Catholic social teaching).

I would still like to hear your opinion on Hope v. Pelzer, which you have conveniently avoided twice now. Perhaps you've avoided it because Pryor's position on that is indefensible.

With the fight in the Senate for these nominees and the appropriate use of the filibuster ongoing I have been reading up on the president's nominees. With Hope v. Pelzer and Judge Pryor's supposed position of defending torture still weighing on me, I came across the Committee for Justice's backgrounder (below) on Judge Pryor and his actions in regard to Hope v. Pelzer: Once again, Nathan does not have the facts straight. It is likely Nathan is merely repeating the misinformation that liberal interest groups are putting out there rather than purposefully misleading his readers. As the backgrounder below points out, Judge Pryor was not defending the use of the restraining bar, which borders on torture, rather he was defending, as he was obligated to do as AG, state employees who were being sued for using it and supposedly knew that its use was unconstitutional. Given that the use of the restraining bar was declared constitutional in at least six previous federal cases, it is hard to see that these guards should have known that the Supreme Court would sometime in the future declare it (by only a 5-4 vote) unconstitutional. The whole of the backgrounder follows:

The Restraining Bar Case. Pursuant to his obligations to defend Alabama against lawsuits, General Pryor raised another immunity-related defense - the defense of qualified immunity - in the U.S. Supreme Court case of Hope v. Pelzer.75 According to the Supreme Court, qualified immunity protects government officials sued in their individual capacities as long as their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known."76 The Eleventh Circuit has made it clear that the purpose of this immunity is to allow government officials to carry out their discretionary duties without the fear of personal liability or harassing litigation,77 by ensuring that only the plainly incompetent or those who knowingly violate the law are subjected to liability.78

For a time in Alabama, prisoners who would not work or who fought with other prisoners on work detail were handcuffed to a restraining bar by Alabama Department of Corrections prison guards until they decided to work with the other prisoners or the work day ended.79 Under the regulation ordering use of the restraining bar, officers were required to provide prisoners with food, water, bathroom breaks, and medical attention.80

The plaintiff in the case, a prisoner convicted of rape, filed suit against three prison guards who allegedly placed him on the restraining bar. The prisoner never alleged that the three guards he was suing in any way failed to provide him with food, water, bathroom breaks, or everything else required by the regulation. Instead, the convicted rapist was seeking money damages for the allegedly unconstitutional actions of the guards.81 This is despite the fact that, by the time the prisoner's case was litigated in court, the Alabama Department of Corrections had ceased using the restraining bar.82

General Pryor's argument was simply that the three defendant guards should not be sued for money damages, because the relevant case law at the time did not come close to establishing a clear rule that the restraining bar was unconstitutional. Under established Supreme Court precedent, state officials are entitled to qualified immunity unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known."83 One year before the conduct at issue in Hope took place, the United States District Court for the Northern District of Alabama rejected the Eighth Amendment claim of an Alabama prisoner who was attached to a restraining bar for five hours after he refused to work and scuffled with guards.84 In fact, federal district courts in five other Alabama cases decided before the conduct at issue in Hope took place also rejected claims that handcuffing a prisoner to a restraining bar or other stationary object violated the Eighth Amendment.85 Because of the lack of clear guidance from federal courts, General Pryor believed the guards had no idea that their actions, which were ordered by then-Governor Fob James and the former prisons commissioner, were in any way illegal. The Eleventh Circuit agreed with General Pryor in 2001, dismissing the prisoner's suit on qualified immunity grounds.86

Because the convicted rapist appealed to the Supreme Court, General Pryor had no choice but to ask the Court to uphold the Eleventh Circuit's decision. Although a bitterly divided Supreme Court held 5-4 that the three prison guards were not entitled to qualified immunity,87 General Pryor's colleagues once again rallied to his side. Fifteen state Attorneys General filed an amicus brief in support of General Pryor's position in the case, including ten Democrats.88 The Attorneys General fully agreed with General Pryor's mainstream argument, noting: "It would not be appropriate to expect lay state officers to anticipate what was not grasped by several contemporary federal courts - and to hold those officers personally liable for this lack of prescience."89


75 536 U.S. 730, 733 (2002).
76 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
77 See Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002).
78 See Chesser v. Sparks, 248 F.3d 1117, 1123 (11th Cir. 2001).
79 See Hope, 536 U.S. at 733.
80 See Respondents' Brief, 2002 WL 481135 at *21-22.
81 See Petitioner's Brief, 2002 WL 313546.
82 See Petitioner's Brief, 2002 WL 313546 at *1 n.2.
83 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
84 See Lane v. Findley, No. CV-93-C-1741-S (Aug. 4, 1994).
85 See, e.g., Ashby v. Dees, No. CV-94-U-0605-NE (N.D. Ala., Dec. 27, 1994); Vinson v. Thompson, No.CV-94-A-268-N (M.D. Ala., Dec. 9, 1994); Hollis v. Folsom, No. CV-94-T-0052-N (M.D. Ala., Nov. 4, 1994); Williamson v. Anderson, No. CV-92-H-675-N (M.D. Ala., Aug. 18, 1993); Dale v. Murphy, No. CV-85-1091-H (S.D. Ala., Feb. 4, 1986).
86 See Hope v. Pelzer, 240 F.3d 975, 981 (11th Cir. 2001).
87 See Hope, 536 U.S. at 741-42.
88 See Brief of the States of Missouri, Nebraska, Nevada, et. al., 2000 WL 471808.
89 Id. at *28 (citation omitted).

This was not about the constitutionality or appropriateness of the restraining bar, rather it was about money and whether or not these guards were entitled to immunity given that the use of the restraining bar in Alabama had been previously declared constitutional. It was not Judge Pryor's place as AG to argue whether or not this practice was constitutional. He was only defending the state employees, again which he is obligated to, who were following what they believed, given the previous federal rulings, was a constitutionally appropriate rule.

Once again there have been false statements about Judge Pryor's position on a issue important to Catholics and all people for that matter. What is his position on torture? I do not know. I am sure Nathan will assume that it he holds a pro-torture position, but the fact of the matter is that we do not know and that it is unfair and false to say that he does. Judge Pryor's actions in regard to Hope v. Pelzer do not warrant opposition to him from Catholics and do not disqualify him from being nominated by the president to the 11th Circuit.