Cooper v. Tard

A. LEON HIGGINBOTHAM, Jr., Circuit Judge,

dissenting.

This appeal is about whether the appellants (“inmates”) should be denied the right to say the following prayer in an exercise yard:

*131 In the name of Allah, the Beneficent, the Merciful, all praises are due to Allah, the Lord of the world, the Beneficent, the Most Merciful Master of this Day of Judgment in which we now live. Thee do we serve and Thee alone do we beseech for Thy help and Thy aid. Help Allah guide us on the right path, the oath of those who now have bestowed God’s grace upon us, not the path of those whom our wrath has been brought down on, nor of those who have gone astray after they have heard Thy teachings. Amen.

More specifically, it is about whether the district court properly construed and applied the Supreme Court’s decision in O’Lone v. Shabazz, — U.S. -, 107 S.Ct. 2400 , 96 L.Ed.2d 282 (1987) when it determined that state prison officials’ prohibition of the inmates’ rights to gather to recite the prayer during regular recreation hours, and the imposition of sanctions against inmates who participated in such prayer, did not violate the inmates’ rights to the free exercise of religion under the first amendment. At issue is the difficult question of the proper review that should be given to such regulations in light of O’Lone . As the majority notes, this Court’s review of the district court’s legal judgment is plenary. To my mind, in light of that standard, affirmance of the district court’s judgment states this Court’s decision that O’Lone effectively deprives federal courts of review of regulatory measures imposed by prison officials, notwithstanding the effect that those measures have upon the constitutional rights of the inmates. Affirmance requires a reading of O’Lone for the proposition that any proffered justification by a prison administration justifies infringement upon the inmates’ constitutional rights. That result is not what the Supreme Court intended by O’Lone , and is flatly inconsistent with the Supreme Court’s decision in Turner v. Safley, — U.S. -, 107 S.Ct. 2254 , 96 L.Ed.2d 64 (1987), upon which O’Lone was based, and which establishes a four-part analysis to determine when prison regulations too far infringe upon inmates’ rights.

Essentially, the position of the officials at Trenton State Prison, Management Control Unit, (“MCU”), is that prohibition of inmates’ congregation into groups of five or more is necessary to avoid the development of factions that might pose a security risk in the prison. More particularly, with respect to the religion of the Nation of Islam, (which the inmates were practicing by their involvement in the congregative “Dua” prayer quoted above), the prison officials assert that its hierarchy fosters separatism that is antithetical to prison authority.

The district court found that the practice of the Dua prayer was a fundamental aspect of the inmates’ sincerely held religious beliefs. Further, it concluded that the prison’s regulatory scheme that prohibited congregate prayer in the recreation yard infringed upon the practice of that religion. It determined, however, in light of O’Lone , that the regulations were reasonable because of the justifications that the prison asserted. The district court accepted the prison administration’s contentions regarding the potential problems of any congregation of inmates and the assertions regarding the threat posed by the particular religion itself. Although the district court found that no incidents of disruption actually resulted from the prayer rituals, it concluded that such incidents are “an inherent potential which should be forestalled where reasonably possible.” Cooper v. Tard, Nos. 81-1959, 81-2199 & 81-2201, slip op. at 12 (D.N.J. Oct. 9, 1987). The district court noted further that “[rjepeated rituals by a particular affinity group may well cause factionalism, derision, counter ‘demonstrations’, complaints, demands for similar status, or physical reactions either in the yard or the cell block.” Id. at 12-13. It found that “the Nation of Islam has a hierarchy characterized by such positions as Captain, Lieutenant and Secretary; [and] therefore, the present inmate-plaintiffs had the potential to establish a regimented ‘organizational structure’ even more threatening to ‘institutional authority’ than a less organized affinity group.” Id. at 12.

*132 The district court based its decision, in part, on the fact that the MCU is the state’s highest security facility, and that its inmates were transferees from other state facilities at which they had demonstrated disciplinary problems. The district court appears to have concluded that the test of “reasonableness” of the articulated rationale supporting the imposition of a regulation that infringes upon inmates’ constitutional rights is functionally related to the security status of the facility. Cooper v. Tard, Nos. 81-1959, 81-2199 & 81-2201, slip op. at 11-12. Therefore, in the district court’s view, since the inmates were confined in a maximum security facility, only a minimal articulation of justification for the regulation is needed to meet the “reasonable” test of O’Lone .

In my view, the district court’s decision improperly interpreted and applied the Supreme Court’s decisions in O’Lone and Turner v. Safley. Those cases do not reflect abdication from the Supreme Court’s prior determination that persons convicted of crimes have the right to “reasonable opportunities to exercise the religious freedom guaranteed by the First and Fourteenth Amendments without fear of penalty.” Cruz v. Beto, 405 U.S. 319, 322 , 92 S.Ct. 1079, 1081 , 31 L.Ed.2d 263 (1972). Indeed, this Court has previously noted that “[neither Turner nor O’Lone ] altered] ... the well-established rule that infringement upon certain fundamental rights ... may only be justified by a legitimate state interest.” Monmouth County Correctional Institutional Inmates, et. al. v. Lanzaro, 834 F.2d 326, 336 (3d Cir.), cert. denied — U.S. -, 108 S.Ct. 1731 , 100 L.Ed.2d 195 (1988). Proper application of the requisites of Turner do not support the district court’s conclusion that the regulation that prohibited their practice of the Dua prayer was reasonable.

In Turner , the Supreme Court reminded us that “[pjrison walls do not form a barrier separating prison inmates from the protections of the Constitution.” 107 S.Ct. at 2259. Turner concerned a prison’s regulation that prohibited inmates in neighboring men’s and women’s facilities from marrying without the prison administration’s approval. The asserted rationale for this prohibition was that allowing inmates to choose mates in this manner might result in jealousies that would lead to conflicts between previous correspondents, or that inmates who were released might return to liberate their mates. The Court initiated its review by reaffirming the view that “federal courts must take cognizance of the valid constitutional claims of prison inmates.” Turner, 107 S.Ct. at 2259 , and noting that the right to marry was constitutionally protected. Id. It noted, however, that some uncertainty had evolved in the wake of Procunier v. Martinez, 416 U.S. 396 , 94 S.Ct. 1800 , 40 L.Ed.2d 224 (1974) (describing the principles upon which evaluation of prisoners’ constitutional claims should be predicated), regarding the appropriate standard of review of prison regulations that infringe upon constitutionally protected rights. Therefore, it resolved that uncertainty by stating definitively that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner, 107 S.Ct. at 2261 (emphasis added).

The Court set out four factors that are relevant to determining whether a regulation is reasonable: (1) “First, there must be a ‘valid, rational connection’ between the prison regulation and the legitimate governmental interest put forward to justify it.” Turner, 107 S.Ct. at 2262 (quoting Block v. Rutherford, 468 U.S. 576, 586 , 104 S.Ct. 3227, 3232 , 82 L.Ed.2d 438 (1984)). Significantly, the Supreme Court noted on this point that it “found it important to inquire whether prison regulations restricting inmates’ First Amendment rights operated in a neutral fashion, without regard to the content of the expression.” Turner, 107 S.Ct. at 2262 (emphasis added). (2) “A second factor relevant in determining the reasonableness of a prison restriction ... is whether there are alternative means of exercising the right that remain open to prison inmates.” Id. (3) “A third consideration is the impact [that] accommodation of the asserted constitutional right will have *133 on guards and other inmates, and on the allocation of prison resources generally.” Id. (4) “Finally, the absence of ready alternatives is evidence of the reasonableness of a prison regulation^ however,] ... the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable....” Id. In light of this test, the Supreme Court determined that the prison’s regulation was “unreasonable” because it was not “rationally related” to a prison objective. The Court noted that nothing about the formal imprimatur of marriage would change the possibility that the occurrences that the prison officials asserted as rationale for the regulation would occur.

I cannot reconcile these factors with the decision of the district court in this case and, therefore, I cannot conclude that the asserted justifications are reasonably related to legitimate penological interests. First in that regard is the district court’s finding that the structure of the Nation of Islam religion was contrary to the authority of the prison and for that fact alone the inhibition of its practice was legitimate. Cooper v. Tard, Nos. 81-1959, 81-2199 & 81-2201, slip op. at 12. (Parenthetically, I must note that I am concerned that any regulation that specifically isolates one religion and discriminates against its practice, runs contrary to the Supreme Court’s decision that prison regulations should not favor some religions over others. See Cruz v. Beto, 405 U.S. at 322 , 92 S.Ct. at 1081 .) The majority’s flat assertion, which merely adopts the MCU officials’ contentions without any corroborating support taken from the record, that the religion’s hierarchy challenges the prison authority is specious. The mere use of titles in the Nation of Islam religion does not demonstrate sufficiently the threat to prison security that the MCU officials contend exists. On this point, the inmates asserted, without contradiction, that the hierarchy of their religion’s structure is comparable to other religions. They have stated, for example, that “Minister is similar to a Reverend; that Captain is equivalent to a Deacon or Bishop and that a Secretary is just one who keeps records.” Appellants’ Brief at 5.

If, in fact, it is only the titles themselves that give rise to the prison officials’ “legitimate” concerns, then that logic would also dictate that the regulations concerning organized basketball games, which according to the testimony of the superintendent of the MCU, Elijah Tard, were played without staff supervision, be strictly enforced. When viewed with the same myopic deference that the majority apparently views the contentions of the MCU regarding the Nation of Islam, the terminology of that sport appears much more threatening to the security of the prison than the religion. In basketball, there is the “Forward” position, the “Center,” the “Point Guard” and, of course, the “Shooting Guard.” Obviously this point is intended to be facetious, but I think that it demonstrates the insufficiency of the prison officials’ rationale. The officials assert nothing about the tenets or practices of the Nation of Islam religion that would threaten the prison’s security. Cf. McCabe v. Arave, 827 F.2d 634, 636 (9th Cir.1987) (prison ban of practice of white supremacist religion that “espouse[d] racial hatred, revenge and violence” was constitutional.) Rather, they assert only that the act of the inmates meeting together in a group of five to pray, and the manner by which they refer to themselves, are threatening. To my mind, these assertions are simply not enough to justify the complete prohibition of the practice of the Dua prayer which is, concededly, fundamental to the practice of the religion of the Nation of Islam. Cf. Allen v. Toombs, 827 F.2d 563 (9th Cir.1987) (prison officials’ restriction of maximum security prisoners’ participation in Native American religious ritual that required the use of an axe, red hot stones and a pitchfork was validly and rationally related to legitimate security concerns of the prison’s administration.).

Further evidence that tends to negate the MCU officials’ concerns regarding the potential threats of affinity groups is that the inmates — under the observation of the prison officials — performed the Dua prayer on several occasions prior to those occasions in question, without incident and without the officials’ expression of any con *134 cern. See App. at 41-42 (Cooper’s testimony that the inmates had openly engaged in the Dua prayer daily for over a month, in plain view of the prison’s officials, without incident and, moreover, that other forms of emotional, religious or political speech in groups were permitted.) This point is supported by the record, particularly by the testimony of Gary Hilton, who had been superintendent of the prison immediately prior to Tard, who conceded that the inmates could gather in a group of four or five in the recreation yard to discuss such topics as politics, the speeches and oratory of Archbishop O’Connor and the teachings of their own religion. See App. at 190.

The record demonstrates that there were no alternative methods by which the inmates could have exercised the congrega-tive aspect of their religion which, the district court found and the prison officials conceded, was a fundamental aspect of the inmates’ religion. See Cooper v. Tard, Nos. 81-1959, 81-2199, 81-2201, slip op. at 8. Although there were other aspects of the religion that were possible (e.g., individual prayer), the practice of congregative prayer was completely prohibited by the regulation. While the majority is reassured by the fact that it is only “unsupervised” congregative prayer that is expressly precluded, I am not satisfied by that fact. 1 First, I note that the record indicates that by the term “supervise” the MCU officials did not mean simply to oversee the prayer ritual to assure that only the prayer was occurring. Rather, the officials wanted to replace inmate Cooper as the leader of the prayer group, presumably to avoid having other inmates recognize him as a leader. The difficulty with that requirement, however, is that there is no minister of the inmates’ faith on staff at the prison and, therefore, there is no one who could “supervise” the religious activity. 2 Moreover, the MCU’s assertion that unsupervised prayer meetings presented a significant threat to the security of the prison was belied by Tard’s own admission that other unsupervised group activities, that were forbidden by the same regulation that precluded the prayer group meetings, proceeded without any disciplinary action against the inmates who participated in them. 3

*135 Perhaps most compelling, and to my mind the critical distinction between this case and O’Lone , is that the inmates’ requests in this case did not impose any additional burden upon the prison. The district court was correct in its reading of O’Lone for the holding that “the prison was not required to accommodate Muslim inmates with such things as special inside or weekend work details ... which could insure their presence inside the prison on Friday afternoons.” Cooper v. Tard, Nos. 81-1959, 81-2199 & 81-2201, slip op. at 11 (emphasis added). In this case, however, no such “special” dispensation was needed to accommodate the inmates’ religious practice. Although, as the inmates correctly note, O’Lone establishes clearly that the prison administration did not bear the burden to demonstrate that there was not a less restrictive measure that would achieve the penological interest while still accommodating the inmates’ religion, there is no contention by the MCU officials that allowing the inmates to practice this aspect of their religion required the alteration of the inmate’s out-of-cell schedule, or required the assignment of additional security or that imposed any other administrative or financial burden upon the institution. In light of that fact, I cannot easily accept the majority’s view that this case is like O’Lone . In my view, because there is an absence of any additional burden upon the prison in the accommodation of the inmates’ religious practices and because the regulation in question leaves no alternative measure of accommodation, the prison officials are not entitled to complete deference in the judicial review of their regulation. More specifically, because accommodation of the inmates’ rights to practice the Dua prayer did not result in any impact upon the prison’s guards, other inmates, or upon the allocation of the prison’s resources, the regulation’s “reasonableness” was not demonstrated. 4

I recognize that the inmates are members of a faith that is dissimilar to the Judeo/Christian religion with which most American judges are familiar either by their personal affiliations or by the insights provided in educational experiences that have been dominated generally by the values of European and Western culture. The religious faiths of the world, however, consist of far broader and more divergent religious perspectives than those known intimately to most Americans. For some, the Koran has as much solace and meaning as the Bible or the Torah has for others. The Constitution of the United States does not adopt any religion and neither does it give any religion a less favorable status simply because its conceptions, language and tone are discordant with the religious nomenclature that is familiar to most judges.

As I have stated, the dispositive test for this appeal is set forth in Turner , and, upon my application of that test to the contentions raised on this appeal, I am compelled to conclude that the prison officials have failed to demonstrate the reasonableness of its regulation. Although the officials have asserted several penological interests upon which the regulation is predicated, it has not demonstrated that the *136 regulation rationally meets those concerns. Prohibition of the congregative prayer will not mean that inmates will not join factions or treat some inmates with greater deference than others. Although I am admittedly without first hand knowledge, what I know about the realities of prison existence leads me to believe that that result is inevitable. For that reason, I cannot countenance the denial of prayer when other activities, which the prison officials either cannot or simply do not strictly regulate, but that are as likely (if not more so) to encourage the development of factions, occur daily.

I am not unaware of the difficulties that exist in the administration of correctional facilities and neither am I unaware of the significant policy concerns that led the Supreme Court to provide great judicial deference to the administrative decisions of prison officials notwithstanding the fact that those decisions impose significantly upon inmates’s constitutional rights. I am not inclined, however, to adopt the view that prison walls must shield out the Constitution in order safely to lock in persons who have been convicted of crimes, and, for that reason, I respectfully dissent.

. On this point, I also find the inmates’ equal protection argument persuasive. The majority’s rejection of that challenge on the grounds that "the recreation activities to which the plaintiffs point were authorized,” maj. typescript at 15, whereas the congregative prayer was not, is not only a tautological conundrum, but it is inconsistent with the record as well. Tard himself testified that unsupervised basketball or card games that were played in groups of three or more were forbidden by the same regulations that precluded the unsupervised congregative prayer, that such games in fact occurred and that, to Tard’s knowledge, no inmate who had participated in those games had ever been disciplined. App. at 84-86. See also infra, note 3.

. The prison officials assert that there is a mus-lim Imam on staff at the prison, but concede that he is of a different faith than the inmates. See App. at 110. I see no reason to assume that it is any more legitimate to require that the inmates have their religious ritual be "supervised" by this minister than it would be to require that Catholics be supervised by an Episcopal priest.

. In Tard’s examination by Stephen Latimer, counsel for the inmates, the following exchange occurred:

Q. [The regulation] also prohibits sports activity without Recreation Department or custody staff supervision. Is that correct?

A. Yes.

Q. Do you know whether inmates in the Management Control Unit yard during the time period May, June and July of 1981, when people were allowed out in the yard, engaged in basketball games?

A. To the best of my knowledge, yes.

Q. Do you know what administration staff was present in the yard while those basketball games were going on?

A. There, to the best of my knowledge, would not have been any staff present in the yard during those activities.

Q. If the basketball [g]ame had occurred in the MCU yard, that’s a violation of your regulation?

A. If it was unsupervised, yes.

Q. Do you know whether anybody other than these plaintiffs received a disciplinary infraction for an unauthorized group activity in the Management Control Unit yard after your regulation of May 22 was issued?

A. I don’t know.

Q. Do you know whether after that regulation was issued any inmates were charged— any inmates who participated in a basketball game were charged with violating that regulation?

*135 A. I don’t know.

App. at 84-86

. The final factor established by Turner also persuades me that the regulation was unreasonable. That consideration states that the absence of a ready alternative is evidence of the reasonableness of the regulation, (i.e. if there is no manner by which the religion can be accommodated without presenting risk to the security of the prison, then the complete prohibition is "reasonable.") This factor embodies a different concept of "reasonable," and uses as evidence that the regulation is not overinclusive the fact that no other means of accommodating the religion, without compromising the prison’s security, can be articulated. Since I am not persuaded that the practice at question in this case presents a palpable security risk, I am not inclined to view this overinclusive regulation as reasonable. Moreover, since I tun not persuaded that prohibiting inmates from leading the prayers will deter deference by some inmates to others, I fail to see why allowing the inmates to continue their ritual as they have been (under the observation of a prison guard) is an unacceptable accommodation of the religious practice. Apart from that, the only way to accommodate the inmates’ request, and comply with the prison officials stated policies, would be for the prison to supply a minister of the inmates’ faith to lead their prayer rituals, but that solution places an additional burden upon the prison administration which, as O’Lone holds, it is not required to undertake.