A prisoner in his 60s with chronic health problems asked to be placed in protective custody six times because he was afraid he would be hurt by gang members in an Arizona prison. His requests were denied each time and his fears came true. At trial, the jury was told to defer to prison officials because they were in the best position to decide what should be done to “preserve discipline and maintain internal security.” The Ninth Circuit said that instruction could have adversely affected the verdict. The prisoner will now get a new trial.

A unanimous three-judge panel of the Ninth Circuit Court of Appeal issued an opinion on July 5 that vacated the decision issued by Judge Joseph Tuchi, Presiding Judge for the U.S. District Court of the District of Arizona. The decision was authored by Circuit Judge Michelle T. Friedland.

Jose Abel Fierro sued six employees of the Arizona Department of Corrections (collectively “the Defendants”), citing his Eighth Amendment right to be protected against violence from fellow prisoners. Between 2011 and 2013, he asked to be placed in protective custody because members of the Border Brothers, a prison gang, had repeatedly called him a “rat” and threatened him. No one listened and all his requests were denied. After the sixth one, and several transfers to different prisons, he was assaulted and suffered “bumps, bruises and contusions,” which also caused him to walk with a limp.

A few days after a fight with his cellmate, who was suspected of being a Border Brother, two prisoners assaulted Fierro in the prison yard. At least one was a member of Border Brothers. Plaintiff Fierro filed a civil action for deprivation of his civil rights under 42 U.S. Code, Section 1983, which says that anyone deprived of their Constitutional rights can sue for redress. The case went to trial and Judge Tuchi gave a jury instruction that caused too much weight to be given to decisions made by prison officials.

Tuchi told the jurors “to give deference to prison officials in the adoption and execution of policies and practices that, in their judgment, are needed to preserve discipline and to maintain internal security in a prison.” Fierro argued that this instruction was prejudicial. The Ninth Circuit agreed that the “evidence reflected a genuine dispute” about whether the defendants’ decisions regarding Fierro’s safety were “necessary, justified or exaggerated response(s) to security concerns.”

Friedland began her opinion with an explanation of protective custody, saying it is “the highest form of protection available to Arizona prisoners,” who are removed from the general population and placed with others in the same category. To qualify, she explained, candidates are subjected to a “multi-step review procedure.” Prisoners who apply are immediately isolated and interviewed while their requests are reviewed by various officials of ascending rank. Appeals for negative findings are permitted.

When Fierro’s first requests were heard, the defendants ruled his claims were “self-reported and unsubstantiated.” He was transferred to another prison but threatened again by a note under his cell door. When he applied the next time, a correctional officer corroborated his story, and one deputy warden did recommend granting his protective custody request. But an administrator disagreed, again saying there was “no threat.” He was again transferred to another prison. The threats continued. He was transferred again. His fifth request was denied because of all his previous requests and “no evidence of“ statewide and gang-related threats.

They also stressed the fact that he had not yet been assaulted. He appealed again, was threatened and transferred again, and was returned to his original prison nearly a year later. An officer then searched a database for his name and “found no evidence that Fierro faced a gang-related threat.” After his sixth request was denied, he was transferred again and “assaulted within 15 minutes of his arrival.”

During the trial the defendants gave differing opinions about Fierro’s need for protective custody. One testified that it was clear from prison records that he needed it. Records were also found to be incomplete. A gang member, who was a confidential informant, corroborated the threat against him.

After day three of Fierro’s trial, each side presented proposed jury instructions. Fierro’s attorney objected to the defendants’ proposal that deference should be given to the judgment of prison officials, in line with the Ninth Circuit’s then-current model jury instructions. The District Court gave the instruction.

Friedland then got to the main reason for the Ninth Circuit’s ruling. First, she gave a history of model jury instructions, explaining the reasons for deference, but also stating that the Supreme Court said the principle “does not insulate from review actions taken in bad faith and for no legitimate purpose.” The court explained it had established two conditions to use in a deference review: were prisoner challenges “provided pursuant to a security-based policy or practice,” and if so “were they a necessary, justified and non-exaggerated response to security needs.”

After a review of relevant precedents, she summarized that deference be given only if both conditions are met. In Fierro’s case, she concluded, the deference instruction was given in error. There was a genuine dispute about the reason for denying his request, and the Justices found fault with the rejection not being based on security concerns, but because they were self-reported and unsubstantiated.

In addition, the opinion found that a “genuine dispute” existed about whether prison officials’ actions were “necessary, justified, and not exaggerated.” As a result, the jury instruction requiring deference was wrong and not harmless error. “It should have been a jury’s choice” instruction, Friedland wrote.

The opinion concluded, “The jury might well have returned a verdict in his (Fierro’s) favor if not for the deference instruction.” He will get a new trial and another chance to remind prison officials that their job is to protect prisoners from each other as well as protect the public that put them there.