Petition for Writ of Certiorari — Gregory Bartunek, Petitioner v. Hall County, Nebraska, et al.

2M.4

IN THE SUPREME COURT OF THE UNITED STATES

supreme Court, U.S"

FILED

GREGORY BARTUNEK,

JAN 1 9 2021

Petitioner/

L OFFICE OF THF i-i CRK

V.

HALL COUNTY, NEBRASKA AND TODD BAHENSKY,

Respondents.

On Petition for a Writ" of Certiorari to the

United States Court of Appeals for the Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

Gregory P. Bartunek

29948-047

Federal Correctional Instution

P.O. Box 9000

Seagoville, TX 75159

RECEIVED

JAN 2 7 2021

OFFICE OF THE CLERK

SUPREME COURT, U.S.

> QUESTIONS PRESENTED

I.

Whether failing to provide consistent and reliable opportunities for

pretrial detainees to exercise their religious freedoms is a violation of

the First/ Fifth, and Fourteenth Amendments of the U. S. Constitution.

II.

What is the proper standard for analyzing pretrial detainees religious

free exercise claims under the First, Fifth, and Fourteenth Amendments of

the U.S. Constitution?

i

LIST OF PARTIES

All parties appear in the caption of the cover page.

RELATED CASES

United States v. Bartunek/ D. Neb., 8:17CR28

ii

TABLE OF CONTENTS

Questions Presented

i

List of Parties

ii

Related Cases

Hi

Table of Contents

.. iii

Table of Authorities

iv

Opinions Below

11

Constitution Provisions/ Treaties, Statutes, Ordances, and Regulations • * . 1

Statement of the Case

. 1

Reasons for Granting the Writ

5

Conclusion

11

[1]

[2]

[3]

t4]

[5]

[6]

[7]

[8]

[9]

[10]

Appendix

Judgment of the Court of Appeals for the Eighth Circuit

Amendment I of the U.S. Constitution

Amendment V:. of 1 the. U."S£. Constitution •

Amendment XIV of the U.S. Constition

18 U.S.C. § 2252

18 U.S.C. § 2252A

18 U.S.C. § 3142

42 U.S.C. § 2000cc

Affidavit of Todd Bahensky

Email from Craig Gottschalk

Letter from Bartunek to District Court

Affidavit of Gottachalk

Grievance Reagarding Church

Appeal to Grievance

[11]

[12]

[13]

[14]

[15]

[16]

Letter from Bartunek to Bahansky

Letter from Bahensky to Bartunek

[17]

U.S. Marshal's Agreement with HCDC

iii

TABLE OF AUTHORITIES

Cases

4, 5

Bell v. Wolfish, 441 US 520 (1979)

Church of Lukumi v, Haileah, 508 US 520 (1993)

6

Cruz v. Beto, 405 US 319 (1972)

7

Cutter v. Wilkinson, 544 US 709 (2005)

3, 7

Green v. Solano County Jail, 513 F.3d 982 (9th Cir. 2008)

8

Love v.. Reed, 216 F.3d 682 (8th Cir. 2000)

8

Murphy v. Collier, 139 S. Ct. Ill (2019)

7

Murphy v. Missouri Dept, of Corr • / 372 F.3d 979 (8th Cir. 2004)

8

O'Lone v. Shabazz, 482 US 342 (1987)

3, 6, 10

Patel v. United States Bureau of Prisons, 525 F.3d 807 (8th Cir. 2008) ... 4

Smith v. Copeland, 87 F.3d 265 (8th Cir. 1996)

Turner v. Safley, 482 US 78 (1987)

4

4, 6

United States v. Lee, 455 US 252 (1982)

6

United States v. Vita, 653 F. Supp. 320 (E.D.N.Yi 1986)

5

Wisconsin v. Yoder, 406 US 205 (1972)

6

Statutes

18 U.S.C. § 2252

1

18 U.S.C. § 2252A

1

18 U.S.C. §:■ 33.42

1, 5, 8, 9

18 U.S.C. § 3231

1

28 U.S.C. § 1254

1

42 U.S.C. § 2000CC

1, 7, 8, 10

U. S. Constitution

Amendment I

1, 4, 5, 7, 9

Amendment V

1, 4,"7, 9

iv

Amendment XIV

1/ 4, 5/ 7/ 9

Other Authorities

Bail Reform Act of 1984

5, 10

RULIPA

7, 10

v

IN THE SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a Writ of Certiorari issue to

review the judgment below.

OPINIONS BELOW

The Opinion of the United States Court of Appeals for the Eighth

Circuit appears at Appendix [1] to the petition and is unreported.

JURISDICTION

The judgment of the Court of Appeals for the Eighth Circuit was entered

Jurisdiction is

on November 4, 2020. This Petition has been timely filed.

proper under 28 U.S.C. § 1254.

CONSTITUTIONAL PROVISIONS# TREATIES/ STATUTES# ORDANCES# AND REGULATIONS

Amendments 1/ V# and XIV of the U.S. Constitution

18 U.S.C. § 2252# § 2252A, § 3142 and 42 U.S.C._§_2QQGcc

STATEMENT OF THE CASE

Bartunek was a pretrial detainee charged with violating: Count I

18 U.S.C. § 2252A(a)(2) Distribution, and Count II - 18 U.S.C. § 2252(a)(4) (B)

Possession of child pornography.

The United States District Court for the

District of Nebraska had jurisdiction under 18 U.S.C. § 3231.

Bartunek was arrested on February 16, 2017 and detained at the Douglas

County Department of Corrections ("DCDC") pending trial.

While at DCDC,

Bartunek was housed in various general housing units, including the

Religious Mod and the Veterans Mod.

During his entire stay at DCDC, he had

acces to on-site Ordained Ministers ("Pastors"), weekly Christian Church

Services, bible studies, and communion when requested.

In April 2018, Bartunek was transferred to Hall County Department of

Corrections ("HCDC"), where he was held as a pretrial detainee until

1

October 2018.

HCDC was over 100 miles from Bartunek's residence.

to his arrest, he had no prior convictions.

Prior

However, HCDC mistakenly

classified him as a Medium 3 because they incorrectly believed him to be a

Registered Sex Offender ("RSO").

(See Appendix [2]).

Because of this, he

was housed in the Maximum Security Unit, segregated from.the general

population.

Then unit housed 32 pretrail detainees, illegal immigrants, and

convicted felons in two-men cells.

Neither HCDC nor the U.S. Marshals gave

any reason why Bartunek was removed from the general population at DCDC and

transferred to this Maximum Security Unit at HCDC.

HI).

(See Appendix [3] at

Although Bartunek asked to be housed in a different unit at HCDC,

their policies would not permit it.

(See Appendix [2] at It 5).

Bartunek is a practicing Christian,

His sincerly held beliefs and

practices include attending weekly Christian group services conducted by an

ordained minister, communion, and pastoral visits.

(See Appendix [4]).

While at DCDC, Bartunek ahd access to various programs and services to

accomodate his beliefs and practices.

However, during Bartunek's entire

six month stay at HCDC, he had no access to a pastor, group services,

communion, or any other religious programs, whatsoever,

Neither did any

other inmates housed with Bartunek in the Maximum Security Unit, because HCDC

relied on undependable outside volunteers.

"Church Services rely completely

upon the time and availability of volunteers to hold such services and are

scheduled weekly."

(See Appendix [3] at H 6).

"HCDC staff had difficulty locating any groups or persons who were

willing to offer religious programs consistently to the maximum.

security unit, which is designed to house those accused or convicted

of violent crimes, serious felonies, and those accused of sexual

crimes against children, Even when such programs can be scheduled,

the leaders will unexpectedly cancel or no-show." (See Appendix

[5] at 11 7).

According to HCDC, church was scheduled in Bartunek's unit on 11 occassions,

2

but only one time did the volunteers arrive.

(See Appendix [5] at II 6).

Even though Bartunek and other iinmates in his unit signed up for the weekly

services; they were never held while he was at HCDC.

(See Appendix [6]).

When Bartunek grievanced the situation; HCDC confused him with another inmate

who had also grievanced the same issue.

(See Appendix [3] at II 5).

Bartunek also appealed his grievance; but it went unanswered.

[7]).

(See Appendix

Therefore; he wrote a letter to Director Todd Bahensky telling him

that he needed a weekly visit by a Christian Pastor; but had. never seen one

since he arrived.

(See Appendix [8] at p. 2).

However; Bahensky refused

to do anything, stating that HCDC was not responsible for providing access

to Church/Bible Study programs or Clergy.

(See Appendix [9] at H 11).

HCDC claimed that Bartunek's right to exercise his religion was not

infringed because no one at HCDC prevented Bartunek from freely exercising

his religion.

(See Appendix [5] at 11 8).

However, HCDC's defacto policy

of using unreliable volunteers did in fact prevent Bartunek from freely

exercising his religion.

Being in a strange city, hundreds of miles from

his home, Bartunek knew of no local Pastors, nor did he have any reasonable

way of contacting them.

Furthermore, he was never offered any Pastor lead

group worship opportunities.or other religious programs.

"Instutional

residents' rights to practice their faith is at the mercy of those running

the instution."

Cutten v. Wilkinson, 544 US 709, 721 (2005).

In this case,

the institution's:.;inactions effectively prevented Bartunek and the other

inmates of the Maximum Security Unit from practicing their faith.

"Especially trained Chaplins, religious instruction and counselling,

together with adequate facilities for group worship of the inmate's

choice, are essential elements in the program of a correctional

institution." O'Lone v., Shabazz, 482 US 342, 362 n. 4 (1987)

3

The Court of Appeals for the Eighth Circuit ("COA") ruled that

Bartunek's First Amendment free exercise claim failed based on standards

set forth in Patel v. United States Bureau of Prisons, 515 F.3d 807, 813-15

(8th Cir. 2008).

(See Appendix [1]).

According to Patel:

"To substantially burden an inmate's free exercise of religion, a

prison regulation — must significantly inhibit or constrain conduct

or espression that manifests some central tenet of a person's

iondividual religious beliefs; must meaninfully curtail a person's

ability to express adherence to his or her faith; or must deny a

person reasonable opportunities to engage in those activities that

are fundamental to a person's religion." (Id.).

However, according to these standards, HCDC did substantially burden

Bartunek's free exercise of his religion.

As previously stated, HCDC

deprived Bartunek any "reasonable opportunities" to have a pastorial visit,

to attend;religious group services, or to take communion, practices that

were "fundamental" to his religion.

Furthermore, Bartunek's case is

distinguishable from Patel in several significant ways.

Unlike Patel,

Bartunek had no alternatives avaiable to him to be able to practice his

faith.

Also, Bartunek was a pretrail detainee, not a convicted prisioner.

"The burden to establish constitutional violations is lighter for

pretrial detainees than for convicted prisoners." Smith v. Copeland,

87 F.3d 265, 268 n. 4 (8th Cir. 1996), quoting Bell v. Wolfish, 441

US 520, 535 n. 16 (1979).

Finally, Bartunek was transferred from a general population minimum

security unit in one jail to an isolated maximum security unit in another

jail, far removed from his home and appointed counsel.

This transfer

severly restricted Bartunek's liberty, and no reason was given as to why

Bartunek was transferred.

This transfer violated Bartunek's due process

rights under the Fifth and Fourteenth Amendments, and resulted in violations

of his First and Fourteenth Amendments, but was not "related to legitimate

penological interests."

Turner v. Safley, 482 US 78, 89 (1987).

4

REASONS FOR GRANTING THE WRIT

Bartunek's case allows the Supreme Court to give guidelines as to the

proper standard for analysis of pretrial detainee's free exercise claims.

Bartunek's case is distinguishable from other cases that this Court has

considered because: 1) it is specific to a free exercise of religion claim;

2) it deals with pretrial detainees' rights rather than convicted criminals;

3) Bartunek's rights were denied for a significant amount of time; and 4)

Bartunek's rights were violated not by what HCDC did/ but rather, by what

they failed to do to preserve his rights.

"A person lawfully committed to pretrial detention Has not been

adjucated guilty of any crime. Under such circumstances, the

Government concededly may detain him to secure his presence at trail

and may subject him to restrictions and conditions of the detention

facility so long as those conditions and restrictions do not amount

to punishment, or otherwise violate the constitution." Bell at 536-37.

Bartunek's constitutional violations arose due to the fact that

Bartunek was denied bail, incarcerated in jails harboring known violent and

dangerous criminals, and treated no differently than those so convicted.

"Bail determinations frequently do not focus on individual defendant,

but only on the nature of the crime charged." Bell at 563 n. 1.

This was true in 1979 before the Bail Reform Act of 1984, and as in

Bartunek's case, remains so today.

The Bail Reform Act requires that

v

pretrial detention be imposed in a place of confinement "separate, to the

extent practicable, from persons awaiting or serving sentences or being held

in custody pending appeal."

18 U.S.C. § 3142(i)f2).

When such facilities

are not available, detainees are denied the liberty consistent with the

limited purpose of that detention.

320, 336 (E.D.N.Y. 1986).

United States v. Vita, 653 F. Supp.

When Bartunek was first incarcerated, his First

and Fourteenth Amendment rights were somewhat limited.

But the moment that

he was transferred to HCDC, he lost those rights completely.

5

The standards for determining whether a government's actions impinge

on an individual's constitutional rights are dependent on the status of the

individual—free/ pretrail detaineej confined to an institution/ or convicted

criminal-? -the constitutional right being impinged—free speech/ freedom of

religion/ due process/ etc.; the government's reason or interest in impinging

on the right; and the duration and extent of the impingement.

At one end of the spectrum are cases involving "free", citizens.

those

In

cases/ the government may justify a limitation on religious freedom

by showing that it had a "compelling government interest" and "narrowly

taylored to advance that interest" Church of Lukumi v. Haileah/ 508 US 520/

531-32 (1993); it was essential to accomplish an "overriding government

interest" United States V. Lee, 455 US 252/ 257-58 (1982); or that the

government's interest was "of the highest order."

Wisconson v. Yoder/

406 US 205/ 215 (1972).

On the other end of the spectrum are cases involving convicted

criminal's rights.

In those cases/ when a prison's regulation or policy

impinges on an inmate's sincerely held religious beliefs/ "the regulation is

valid if it is reasonably related to a legitimate peneological interest."

O'Lone v. Shabazz/ 482 US 342, 349 (1987).

See also Turner at 89.

According to Turner:

In determining whether a regulation is reasonable, the courts should

consider: 1) whether there is a valid, rational connection between the

regulation and the governmental interest justifying it; 2) whether

there is an alternative means available to the inmate to exercise the

right; 3) would the accommodation have a significant ripple effect on

guards, other inmates, and prison resources; and 4) is there an J

alternative that fully accommodates the prisoner at de minimus cost

to valid penological interests. Turner at 89-91.

The problem with using a reasonable standard is that it gives too much power

to institutions housing inmates, without accountability for their actions.

6

"[R]easonable opportunities must be afforded to all prisoners to

exercise their religious freedom guaranteed by the First and

Fourteenth Amendments." Cruz v. BetQ/ 405 US 319/ 322 n. 2 (1972).

However/ in Bartunek's case/ neither Bartunek nor any of ;thec.other inmates

in HCDC's Maximum Security Unit were given such opportunities during his

entire six (6) month stay.

Never-the-less/ HCDC convinced the courts that

since they did nothing actively to prevent Bartunek from practicing his

religion/ i.e • / they had no rules banningr^ny.::oEc.B&rturr4k-' sdfeliqhaus

practices/ they could not be held responsible for restraining his religious

liberty.

This Court has recognized that:

"Whether from indifference/ ignorance/ bigotry/ or lack of resources/

some institutions restrict religious liberty in egregious and > r: unneccessary ways." Cutter v. Wilkinson/ 544 US 709, 716 (2005).

Congress recognized this problem when it enacted 42 U,i-S.C. § 2000cc/

et seq. ("RLUIPA")/ "to provide greater protection for religious liberty

than do this Court's First Amendment precidents."

139 S. Ct. Ill (2019).

Murphy v. Collier/

42 U.S.C. § 2000cc-l(a) states:

No government shall impose a substantial burden on the religious

exercise of a person residing innor confined to an institution • • •

unless the burden on that person

(1) is in furtherance of a ^compelling government interest; and

(2) is the least restrictive means of furthering that compelling

government interest'.' (Id.).

While most individuals understand their religious practices are protected

by the First Amendment to the U.S. Constitution;/; they generally are

unfamilliar with RLUIPA/ and thus fail to use this as grounds to protect

these rights.

Even when considering RLUIPA/ the courts still rely heavily

on the "reasonable" standard/ which is insufficient to protect pretrial

detainees' First/ Fifth/ and Fourteenth Amendment rights.

,

The ruling in Bartunek's case shows how difficult the courts job is

when evaluating religious free exercise claims under the First Amendment

7

without further guidance from the Supreme Court.

Bartunek's ruling conflicts

with previous Circuity's..rulings.--onrsiMlar cases:

Love v. Reed/ 216 F.3d 682/ 689 (8th Cir. 2000) (A rule

See/ e.g • / ____________

imposes a substantial burden on the free exercise of religion-when it

provides "no consistant and dependable way to observe a religious

practice."); Green v. Solano County Jail/ 513 F.3d 982/ 988 (9th Cir.

2008) (A ban on group worship is a substantial burden on the prisoner

whose belief included group worship.); Murphy v. Missouri Dep't of

_____

Corr • / 372 F.3d 979/ 989 (8th Cir. 2004) (The prisons refusal to

permit group worship was not the least restrict means necessary to

preserve its security interest pursuant to 42 U.S.C. § 2000cc/ et seq.)'.

In Bartunek's case/ HCDC offered no legitimate penologicalinterestias :to,.why

Bartunek and other inmates in the Maximum Security Unit were not provided

with any consistent and dependable way to obser their religious practices

so fundamental to their beliefs.

Clearly HCDC and Bahensky violated

. r:

Bartunek's First/ Fifth/ and Fourteenth Amendment rights and 42 U.S.C. §

2000cc/ and Summary Judgment and Qualified Immunity should not have been

granted.

Bartunek's case presents an ideal vehicle for resolving the question

asked.

His case shows how law officials/ prosecutors/ legislators/ and

courts can work together to justify depriving individuals of their

constitutional rights/ and how hard it is to convince them to take .

responsibility for their actions/inactions/ and to correct the injustices

that they created.

Much insight can be gained by looking at the events preceeding

Bartunek's incarceration at HCDC.

released.

Bartunek was initially ordered to be

Had the government not appealed the release order/ that would have

been the end of it.

However/ Judge Robert Rossiter Jr. re-opened the

detention hearing/ even though the government had no new evidence nor change

in circumstances to merit it.

Instead of following 18 U.S.C. § 3142(j); a

8

presumption of innocense/ Judge Rossiter used 18 U.S.C. § 3142(e)/ a

presumption of dangerousness (based solely on the alleged crime committed)/

to detain Bartunek instead.

Then a decision was made by the U.S. Marshals

to transfer Bartunek to HCDC without a hearing/ without justification/ or

any due process/ and thus deprived Bartunek of his First/ Fifth/ and

Fourteenth Amendment rights.

Whe Bartunek claimed his constitutional rights were being violated/

his cries for help fell on deaf ears.

Not only did Bartunek appeal to HCDC

for help ghrough the administrative grievance process/ he also asked HCDC

Director Todd Bahensky/ the Nebraska Ombudsman/ and the court for help.

Bartunekctried to reach out to two pastors/ one in a local church/ and one

from a pastor at DCDC/ but never received a reply form either of them.

When

Bartunek asked to be reassigned to a general population unit at HCDC in order

to gain access to pastors/ services/ and other religious programs/ his :..

request was denied/

this time not because he was deeme a danger to the

community/ but rather that the community would pos a danger to him.

Bartunek

also asked HCDC to hold group services or be taken to a church/ but this

request was ..ignored.

Furthermore/ there was no reason that HCDC could not

have worked with the Marshals to tranfer Bartunek to another "jail" or

:"detention center" such as DCDC/ that allowed Bartunek to exercise his

religious freedom.

The fact is; that HCDC had a financial incentive not to

give up bartunek.

They were making $75/day for each Federal inmat that they

housed.

(See Appendix [10]).

Bartunek's case is not unique.

Every day/ pretrial detainees are

deprived of various constitutional rights by government officials who appear

on the surface to be acting in a "reasonable" manner.

While incarceration

by its very nature changes an individual's status for convicted prisoners/ it

9

Should not do so for pretrial detainees who are innocent until proven

guilty beyond a reasonable doubt.

The legislature has tried and failed to remedy the situation.

When

thy passed the Bail Reform Act of 1984/ the legislators believed that more

individuals would receive bail and that detainees would be separated from

convicted criminals/ allowing them the freedom that they deserved.

the exact opposite occured.

However/

And because the '’reasonable" standard is still

used by the courts in judging the infringment of pretrial detainees rights/

RUILPA has done little to improve the situation.

Bartunek's Petition should be granted to allow the Supreme Court to

give precise guidelines as to the proper standard for analysis of pretrial

detainees' free exercise claims.

The current genteral standard of "•

"reasonableness" to review such claims is inadequate to his task.

case/

As in this

"The message to prison officials is cleari merely act "responsibily"

and your actions will be upheld."

O'Lone at 356.

"The Constitution was not adopted as a means of enhancing the

efficiency with which government officals conduct their affairs/ nor as a

blueprint for enduring sufficient reliance on administrative expertise.

Rather it was meant to provide a bulwork against infringments that might

otherwise be justified as necessary expedients of governing.

(Id.).

"While [the Courts] must give due consideration to the needs of those

in power/ [ their] role is to ensure that fundamental restraints on

that power are enforced/ If_a_directive that officials act

"reasonably", were deemed sufficient to check all exercises of power/

the Constitution would hardly be necessary." (Id.).

Bartunek's case clearly shows how the lack of guicance from the courts

allows institutions to easily deprive pretrial detainees of their

constitutional rights.

They can claim/ "we are not responsible" for making

sure pretrial detainees constitutional rights are upheald/ because "we did

10

nothing" to "ban" them from practicing their faith.

However/ because of the

sever limitations of Bartunek's freedom imposed by being incarcerated at

HCDC/ they did/ by defactO/ "ban" him from practicing his religion.

This Court's answer to the questions presented herein will be outcome

determinative in this case/ and its impact will be widespread,

This Court

should therefore accept this opportunity to decide these importantant

Constitutional issues.

CONCLUSION

For the forgoing reasons/ the Court should grant this Petition

for a Writ of Certiorari.

Respectfully submitted/

M*

f.

y

artunek/ Petitioner

29948-047

Federal Correctional Institution

P.O. Box 9000

Seagoville/ TX 75159

11

fill IffooZl

Date