# Inouye v. Kemna > Court of Appeals for the Ninth Circuit · October 3, 2007 · 504 F.3d 705 URL: https://www.frixlaw.com/law-library/cases/9627987 ## Case - **Full name:** Ricky K. INOUYE, Plaintiff, and Zenn K. Inouye, Personal Representative of the Estate of Ricky Kenichi Inouye, AKA Ricky K. Inouye, Deceased, Plaintiff-Appellant, v. Michael KEMNA; Lucianne Khalaf; Daniel H. Shimizu; Peter B. Carlisle; City and County of Honolulu; Mark Nanamori, Defendants-Appellees - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** October 3, 2007 - **Citations:** 504 F.3d 705; 2007 U.S. App. LEXIS 23106; 2007 WL 2850445 - **Precedential status:** Published - **Opinion:** Concurrence by Tallman - **Judges:** Thompson, Berzon, Tallman - **Cited by:** 97 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9627987 ## How later opinions describe it (automated extraction) - holding that it is unconstitutional to compel a parolee to attend a religiously based substance abuse treatment program - holding that a mandatory drug treatment program for prisoners is “clearly coercive” where the program is rooted in religious faith - holding that requiring a parolee to attend AA or Narcotics Anonymous violates the First Amendment - finding state action requiring participation in a religious program “clearly coercive” based on the threat of imprisonment ## Opinion text TALLMAN, Circuit Judge, concurring in the judgment: I write separately because although I concur in the court’s judgment, I cannot embrace the opinion’s broad language. The only record evidence in this case that Inouye’s participation in Narcotics Anonymous/Alcoholics Anonymous (“NA/ AA”) offends the Establishment Clause is a letter that Inouye’s attorney wrote on his behalf to the parole board before Inouye’s release that simply alleges that NA/AA “has explicit religious content” and encloses a copy of the Seventh Circuit’s decision in Kerr v. Farrey, 95 F.3d 472 (7th Cir.1996). We know nothing about the content of the Hawaii Salvation Army’s NA/AA program. Indeed, other courts have recognized that the ‘“principal and primary effect’ of encouraging participation in AA is not to advance religious belief but to treat substance abuse.” O’Connor v. California, 855 F.Supp. 303, 307 (C.D.Cal.1994). No one disputes that drug treatment was a necessary condition for Inouye’s release on parole. As the opinion correctly notes, however, the parties appear to concede that compelled participation in the NA/AA program at issue here does rise to the level of a First Amendment violation. Nonetheless, I am concerned that the court’s opinion gives parolees incentive to file section 1983 actions when the simple *718 solution would be to return to the sentencing court and seek relief from alleged unconstitutional terms of parole through appropriate motion practice. In fact, Na-namori testified that Inouye never asked to be placed in a different program and that Inouye was terminated from the NA/AA program because he was continuing to use drugs and did not attend any treatment sessions. Plainly, in this case, completion of a drug treatment program was integral to Inouye’s chances for success on parole. Indeed, one of Inouye’s parole violations came as a result of his drug-induced conduct at a hotel when he refused to leave after checkout time and for which there was ample probable cause to arrest him. Prisons are filled with offenders who suffer from drug abuse problems. Parole authorities must have the means to require participation in drug treatment programs if the parolee is to have any chance of success and to protect the community from further drug-motivated crimes. See Warner v. Orange County Dep’t. of Prob., 115 F.3d 1068, 1077 (2d Cir.1997) (commenting that the “policy of sending alcoholic defendants like Warner to A.A., ... was ... to help free alcoholics from addiction by sending them to a program that has been famously successful”). I also find overstated the court’s view of the “reasonable parole officer.” It is somewhat of a stretch, as the opinion suggests, to require such officials to closely monitor the state of the law and possess the legal acumen to determine when the fine line of “clearly established” has been crossed and to act accordingly. See Wilson v. Layne, 526 U.S. 603, 617 , 119 S.Ct. 1692 , 143 L.Ed.2d 818 (1999) (noting that officials are not “expected to predict the future course of constitutional law”). This suggestion is especially problematic when the parolee’s objection to any drug program with questionable religious undertones could have been alleviated by asking for a different program or by filing a simple motion with the sentencing court. However, because the law was clearly established at the time, Nanamori is not entitled to qualified immunity, and it will be for a jury to decide whether Inouye suffered any compensable damages as a result of being ordered to attend an NA/AA program that he ultimately did not complete, in no small part, because he could not avoid drugs. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9627987. Public record. Not legal advice.