An exchange between the majority and the dissent in Norwood v. Vance, decided yesterday by the Ninth Circuit. The issue:

Defendants claim the district court erred by refusing to give the following jury instruction:

In considering whether defendants were deliberately indifferent to the need for outdoor exercise, the jury should consider that defendants had a competing obligation under the Eighth Amendment to ensure the safety of prisoners, including protecting prisoners from each other. In considering these factors, you should 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.

The district court initially agreed to the language but, after plaintiff objected, declined to include it on the ground that