Petition for Writ of Certiorari — Richard Reynolds, et al., Petitioners v. Angel Quiros, Commissioner, Connecticut Department of Correction

No. 22-___________

IN THE

SUPREME COURT OF THE UNITED STATES

RICHARD REYNOLDS, JOHN VIVO, DWIGHT G. PINK,

ANDRES R. SOSA, AKOV ORTIZ, AND VICTOR SMALLS,

Petitioners,

v.

ANGEL QUIROS, COMMISSIONER OF THE CONNECTICUT

DEPARTMENT OF CORRECTION, IN HIS OFFICIAL

CAPACITY,

Respondent.

On Petition For a Writ Of Certiorari To The United

States Court Of Appeals For The Second Circuit

PETITION FOR A WRIT OF CERTIORARI

Palak Sharma

DAY PITNEY LLP

One Jefferson Road

Parsippany, NJ 07054

Matthew J. Letten

Counsel of Record

Joseph K. Scully

Elizabeth P. Retersdorf

Rosendo Garza, Jr.

DAY PITNEY LLP

242 Trumbull Street

Hartford, CT 06103

(860) 275-0100

mletten@daypitney.com

ii

QUESTION PRESENTED

Whether a state administrative agency, based

upon the recommendation of an ad hoc committee,

can deny access to publications protected by the First

Amendment—specifically, pictorial sexually explicit

materials—simply because the plaintiffs are

incarcerated within a facility operated by the

Connecticut Department of Correction or whether the

Department’s administrative rule violates the First

Amendment based on the factors set out in Turner v.

Safley, 482 U.S. 78 (1987).

iii

Table of Contents

PETITION FOR A WRIT OF CERTIORARI ......... 1

OPINIONS BELOW ................................................ 1

JURISDICTION ...................................................... 1

STATEMENT OF THE CASE ................................ 1

I.

FACTUAL BACKGROUND ........................... 5

A.

II.

The DOC’s Review of AD 10.7 ........... 5

PROCEEDINGS BELOW ............................... 9

A.

District Court Proceedings ................ 9

B.

The Second Circuit’s Decision ......... 12

REASONS FOR GRANTING THE PETITION ... 14

I.

THE SECOND CIRCUIT’S DECISION IS

INCONSISTENT WITH THIS COURT’S

PRECEDENT REGARDING THE

CONSTITUTIONAL REVIEW OF PRISON

REGULATIONS. ........................................... 14

II.

THE SECOND CIRCUIT’S DECISION IS

WRONG. ........................................................ 17

III. THIS CASE PRESENTS AN IDEAL

VEHICLE FOR THE COURT TO CLARIFY

REASONABLENESS REVIEW UNDER

TURNER. ...................................................... 22

CONCLUSION ...................................................... 25

iv

TABLE OF AUTHORITIES

Page(s)

Cases

Ashcroft v. Free Speech Coal.,

535 U.S. 234 (2002)................................................3

Beard v. Banks,

548 U.S. 521 (2006).................................. 14, 16, 17

Bell v. Wolfish,

441 U.S. 520 (1979)................................................2

Campos v. Coughlin,

854 F. Supp. 194 (S.D.N.Y. 1994) .......................18

Heyer v. U.S. Bureau of Prisons,

984 F.3d 347 (4th Cir. 2021)................................23

Nordstrom v. Ryan,

856 F.3d 1265 (9th Cir. 2017)..............................23

Overton v. Bazzetta,

539 U.S. 126 (2003)..............................................17

Owen v. Willie,

117 F.3d 1235 (11th Cir. 1997)............................16

Payton v. Cannon,

806 F.3d 1109 (7th Cir. 2015)..............................22

Pell v. Procunier,

417 U.S. 817 (1974)................................................2

v

Reno v. Am. Civil Liberties Union,

521 U.S. 844 (1997)................................................3

Shaw v. Murphy,

532 U.S. 223 (2001)..............................................18

Thornburgh v. Abbott,

490 U.S. 401 (1989)........................ 2, 14, 15, 16, 22

Turner v. Safley,

482 U.S. 78 (1987) ....................................... passim

Wall v. Wade,

741 F.3d 492 (4th Cir. 2014)................................24

Regulations

Conn. Agencies Reg. § 18-81-39 ..................................5

Other Authorities

Conn. Dep’t of Corrections, Tablets for DOC Inmates,

https://portal.ct.gov/DOC/CommonElements/Common-Elements/Tablet-Information

(last visited June 14, 2022) .................................20

David M. Shapiro, Lenient in Theory, Dumb in Fact:

Prison, Speech, and Scrutiny, 84 Geo. Wash. L.

Rev. 972, 988–95 (2016).......................................23

Kristen Schnell, Turner’s Insurmountable Burden: A

Three-Circuit Survey of Prisoner Free Speech

Claims, 6 Colum. Hum. Rts. L. Rev. Online 123

(2022) ....................................................................23

1

PETITION FOR A WRIT OF CERTIORARI

Petitioners Richard Reynolds, John Vivo, Dwight

G. Pink, Andres R. Sosa, Akov Ortiz, and Victor

Smalls respectfully petition for a writ of certiorari to

review the judgment and opinion of the United States

Court of Appeals for the Second Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Second Circuit (Pet. App. 1a–28a) is reported

at 25 F.4th 72 (2d Cir. 2022). The opinion of the

district court entering judgment for Respondent

following a bench trial is included at Pet. App. 29a–

52a.

JURISDICTION

The United States Court of Appeals for the Second

Circuit entered judgment on February 3, 2022. Pet.

App. 1a. Justice Sotomayor granted Petitioners’

timely application to extend the time to file until June

20, 2022. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

STATEMENT OF THE CASE

This Court has repeatedly affirmed that “[p]rison

walls do not form a barrier separating prison inmates

from the protections of the Constitution,” and

prisoners are not stripped of their constitutional

rights and privileges the moment the prison doors

close. Turner v. Safley, 482 U.S. 78, 84 (1987); accord

2

Thornburgh v. Abbott, 490 U.S. 401, 407 (1989); Bell

v. Wolfish, 441 U.S. 520, 545 (1979); Pell v. Procunier,

417 U.S. 817, 822 (1974). It follows that “[w]hen a

prison regulation or practice offends a fundamental

constitutional guarantee, federal courts will

discharge their duty to protect [prisoner’s]

constitutional rights.” Turner, 482 U.S. at 84

(alteration in original) (quotation marks omitted). In

particular, federal courts must carefully review

prison regulations and policies that infringe on

constitutional rights and should only permit those

restrictions that are “reasonably related” to

legitimate government interests. Id. at 89. Courts

should strike down prison regulations and policies

that are an “exaggerated response” to penological

objectives. Id. at 87. Courts must remain ever vigilant

to protect constitutionally enshrined individual rights

from abridgement by unelected officials of the

administrative state.

In this case, the Connecticut Department of

Correction (“DOC”) implemented revisions to an

existing regulation, Administrative Directive 10.7

(“AD 10.7”), such that every inmate in a state prison

facility in Connecticut is now prohibited from

receiving or possessing pictorial sexually explicit

materials, including photographs, magazines, and

books. The DOC adopted this radical abridgement of

constitutional rights based upon the recommendation

of an ad hoc committee of DOC personnel.

In sweeping fashion, AD 10.7 prohibits state

prisoners from possessing personal photographs of a

loved one that contain nudity, a National Geographic

magazine that includes stray nude images, an

3

instructional art book that shows how to draw the

nude human form, as well as those materials that are

more traditionally classified as pornography. It is

undisputed that prisoners have a First Amendment

right to these materials, whatever moral value we

assign to them. E.g., Ashcroft v. Free Speech Coal.,

535 U.S. 234, 234 (2002); Reno v. Am. Civil Liberties

Union, 521 U.S. 844, 874 (1997).

Given the obvious constitutional concerns

presented by AD 10.7, Petitioners—all current

inmates in different state prison facilities in

Connecticut—filed

multiple

lawsuits

alleging

violations of their First Amendment rights that were

later consolidated into this case. When pressed to

defend the constitutionality of AD 10.7, Respondent,

the DOC Commissioner, cited familiar penological

interests that are routinely invoked in prison

litigation, including the security of prison facilities,

the rehabilitation of inmates, and workplace

conditions for prison staff.

These interests are, standing alone, legitimate

objectives for prison officials. But over the course of a

multi-day bench trial, Petitioners demonstrated with

expert testimony, prison records, their own

testimony, and the testimony of DOC officials and

employees that AD 10.7 was not rationally related to

prison security, rehabilitation, or workplace

conditions. Rather, these interests were merely

window dressings meant to obscure the DOC’s moral

4

judgment that sexually explicit materials1 are

objectionable and prisoners should not have them for

that reason. A prison’s moral judgment that prisoners

should not have access to certain First Amendment

materials is, however, plainly insufficient to justify

this type of restriction.

On appeal, the Second Circuit adopted many of the

speculative arguments put forth in defense of AD

10.7. Instead of the thorough reasonableness review

that this Court endorsed in Turner v. Safley, 482 U.S.

78 (1987), the Second Circuit almost entirely deferred

to the DOC’s arguments concerning the value of AD

10.7, no matter how attenuated or lacking in

evidentiary support these arguments were. In the

process, the Second Circuit embraced an extreme

view of deference, such that it is hard to imagine a

scenario where a federal court would strike down a

prison regulation as unreasonable—at least so long as

prison officials invoke the right buzzwords like

“prison security” or “prisoner rehabilitation.”

Because the Second Circuit’s decision is

inconsistent with this Court’s precedent, wrongly

decided, and presents this Court with an opportunity

to clarify the nature of reasonableness review under

Turner, Petitioners request that this Court grant

certiorari.

1 For purposes of this Petition, “sexually explicit materials”

refers to pictures, not written words. Petitioners have not

challenged AD 10.7 as it applies to written materials.

5

I. FACTUAL BACKGROUND

A. The DOC’s Review of AD 10.7

In August 2010, the Commissioner of the DOC

ordered a review of the DOC’s existing regulation

regarding the possession of sexually explicit

materials. Pet. App. 8a. At the time, DOC reviewed

all incoming letters, magazines, books, and

newspapers pursuant to AD 10.7. In 2010, AD 10.7

prohibited prisoners in Connecticut from receiving

certain categories of sexually explicit materials,

including sadomasochism, bestiality, and nonconsensual sexual activity. Pet. App. 8a, Pet. App.

110a. Outside of these categories, prisoners could

receive and possess sexually explicit materials,

including photographs that included nudity or sexual

activity. Indeed, AD 10.7 prohibited the DOC from

rejecting a publication “solely because its content is .

. . sexual, or because its content is unpopular or

repugnant.” Conn. Agencies Reg. § 18-81-39.

The Commissioner asked a committee of six DOC

personnel (the “DOC Committee”) to consider

whether AD 10.7 should be revised along the lines of

a dual-tiered system where inmates could possess

pictorial depictions of nudity, but not explicit sexual

activity. Pet. App. 8a. In his charge to the DOC

Committee, the Commissioner expressed concern that

AD 10.7 allowed inmates to possess “offensive and

pornographic depictions of sexual activity,” which

some inmates would display in their cells in violation

of existing DOC policy. Id. at 33a.

The DOC Committee—which did not solicit any

6

input from inmates and only met once a month for six

months—quickly decided that the Commissioner’s

proposed two-tiered system would be difficult to

implement because it would require the “ongoing,

subjective” monitoring of inmate mail. Id. Of course,

the DOC was already monitoring inmate mail

pursuant to AD 10.7 and applying subjective criteria

as to what sexually explicit materials were

prohibited.

The DOC Committee also purportedly considered

whether a two-tiered system could be implemented

based on inmate status, where sex offenders would be

prohibited from receiving or possessing sexually

explicit materials. Pet. App. 33a. The DOC

Committee rejected this system as difficult to

administer because sex offenders are not segregated

from non-sex offenders and sexually explicit

materials can be bartered among inmates. Id. This

has not stopped the DOC, however, from imposing

other restrictions on sex offenders that do not apply

to the general inmate population. Moreover, as

discussed below, inmate cells are routinely searched

for contraband and there was no indication that DOC

staff could not search for sexually explicit materials

when searching the cells of sex offenders.

Instead of recommending a two-tiered system, as

asked by the Commissioner, that would preserve at

least some modicum of inmate rights, the DOC

Committee recommended that the DOC radically

revise AD 10.7 to prohibit all pictorial depictions of

nudity and sexual activity. Pet. App. 34a. The DOC

Committee claimed its recommendation was guided

by the safety and security of DOC facilities, the

7

rehabilitation of DOC inmates, and reducing the

exposure of DOC staff to sexually explicit materials

and acts of public indecency by some inmates. Id. at

33a.

The Plaintiffs presented evidence, however, that

the DOC Committee’s true motivation was removing

sexually explicit materials from DOC facilities

because

the

committee

members

disliked

pornography. For example, one of the committee

members would later testify that the DOC should

assume the role of thought police and prohibit

inmates from viewing sexually explicit because

inmates have “sexist and inappropriate attitudes and

perceptions of women” and sexually explicit materials

“reinforce[] those attitudes and perceptions.” Pet.

App. 39a–40a; accord id. at 39a (testimony from the

same committee member that sexually explicit

materials can cause “deviant sexual arousal”).

Moreover, the DOC already had numerous

regulations on the books that were meant to address

the various concerns cited by the DOC Committee. At

the time, inmates were prohibited from displaying

sexually explicit materials in their cells; indeed,

existing regulations severely restricted the quantity

of pictures that inmates could post on their walls. Pet.

App. 30a, 111a.2 Regulations already prohibited

Inmates in dormitory housing units could not post more

than five “pictures or decorative items” and inmates in celled or

cubicle units were limited to a designated wall space of not more

than six square feet. Pet. App. 111a. Inmates in restrictive

housing units were not permitted to display any pictures or wall

decorations. Id.

2

8

public indecency, including masturbating in front of

female staff, and classified public indecency among

the most serious class of offenses that could result in

punitive segregation, forfeiture of good time credits,

and loss of recreation, telephone, and commissary

privileges. Id. at 31a. Inmates were prohibited from

bartering with one another and, like every prison,

fighting among inmates was prohibited and not

tolerated. Id. at 32a. Instead of focusing on the

enforcement of these existing rules or increasing the

available punishment for violations, the DOC

Committee recommended a total ban on sexually

explicit materials based on scant evidence.

B. The DOC’s Revision of AD 10.7

Despite being inconsistent with his original

charge, the Commissioner ultimately adopted the

DOC Committee’s recommendation and a revised

version of AD 10.7 went into effect in June 2012. Pet.

App. 34a. As revised, AD 10.7 stated that “any visual

depiction of sexual activity or nudity” will be rejected

as part of the review of incoming publications “unless

those materials . . . taken as a whole, are literary,

artistic, educational or scientific nature.” Id. The

possession of these same materials is also deemed a

Class A offense under AD 10.7. Id. at 35a.

Confusingly, the revised version of AD 10.7 left in

place language suggesting the DOC will only prohibit

sexually explicit material that “poses a threat to the

security, good order, or discipline of the facility” and

“may not reject a publication solely because its

content is . . . sexual.” Pet. App. 34a. As a practical

matter, however, these qualifiers are toothless. AD

9

10.7 now operates as a de facto ban on visual

depictions of sexual activity or nudity subject only to

the narrow exception for literary, artistic, educational

or scientific materials, which is referred to as the

“artistic exception.” Id. at 35a–36a.

Today, all incoming publications are still reviewed

by mailroom staff for compliance with AD 10.7. Pet.

App. 35a. In the case of books, if even a single page of

the book contains a sexually explicit photograph, the

entire book is rejected. Id. In the case of magazines,

the entire magazine will be rejected if it has roughly

six or more objectionable pages. Id. If a magazine has

fewer objectionable pages, the DOC will rip them out

and give the inmate the altered magazine. Id.

II. PROCEEDINGS BELOW

A. District Court Proceedings

Soon after the DOC announced the revisions to AD

10.7, several prisoners filed pro se constitutional

challenges to the regulation. Pet. App. 11a. The

district court eventually consolidated these several

cases into one action and appointed undersigned

counsel as pro bono counsel for Petitioners. Id.

Petitioners filed an amended complaint alleging

violations of their rights under the First and

Fourteenth Amendments to the United States

Constitution. Id. at 30a.3

Petitioners further alleged that AD 10.7 violated the

Constitution of the State of Connecticut and that the DOC had

violated state law by amending AD 10.7 without following the

3

10

In April 2019, the district court held a three-day

bench trial in the consolidated action. Pet. App. 11a.

Petitioners testified as to the negative effects of AD

10.7 on their mental well-being and the environment

inside Connecticut prisons. Id. at 37a. Petitioners

explained how they experience increased stress,

anxiety, and depression because they no longer have

a healthy outlet to find sexual release. Id. at 37a–38a.

Petitioners also testified that, if anything, the ban on

sexually explicit materials means they now view

female prison staff in a more sexual manner and the

climate inside prisons is therefore worse for female

staff. Id.

In addition, Petitioners testified as to the

arbitrary manner in which AD 10.7 is enforced,

particularly with respect to the so-called “artistic

exception” for materials “which, taken as a whole, are

literary, artistic, educational or scientific in nature.”

Pet. App. 34a, 36a. There was testimony and evidence

that Petitioner Dwight Pink—who had taken up

drawing in prison and sought art books, some with

nude pictorials, in order to further this legitimate

artistic endeavor—had numerous instructional art

books with depictions of nude models rejected as

sexually explicit. Id. at 36a. Not surprisingly, prison

staff admitted that application of this exception turns

on largely subjective determinations of a publication’s

purpose and nature. Id.

required procedures. Pet. App. 8a. The district court dismissed

these state law claims without prejudice, concluding that it

lacked supplemental jurisdiction. Id.

11

The district court also heard expert testimony

from Dr. Robert Selverstone, a psychologist who was

qualified as an expert in human sexuality and typical

human behavior. Pet. App. 40a. Dr. Selverstone

opined that exposure to sexually explicit materials

and sexual arousal can have a positive effect on one’s

mental well-being. Id. He further opined relevant

studies show that the availability of sexually explicit

materials is correlated with fewer instances of sexual

crimes and positive attitudes towards woman. Id.

In March 2020, the district court issued a written

opinion and entered judgment in favor of Respondent.

The district court concluded that AD 10.7 survived

constitutional scrutiny based on the factors set out in

Turner v. Safley, 482 U.S. 78 (1987). Pet. App. 41a–

47a. The district court also concluded that AD 10.7

was not unconstitutionally overbroad or vague. Id. at

48a–49a.

Focusing on the Turner factors, the district court

considered (1) whether a valid and rational

connection exists between the regulation and the

legitimate government interest it protects; (2)

whether inmates have alternative means for

exercising the constitutional right; (3) the impact

accommodating the right will have on guards, other

inmates, and the allocation of prison resources; and

(4) whether alternatives readily exist that would

accommodate the prisoner’s rights. Turner, 482 U.S.

at 89–91.

The district court accepted three penological

interests as justifying AD 10.7: (1) the safety and

security of prison facilities; (2) the rehabilitation of

12

sex offenders; and (3) the promotion of a non-hostile

work environment for female staff. Pet. App. 43a–45a.

The district court also found that inmates had

alternative means of receiving “sexually explicit

communications” (second Turner factor), id. at 45a,

that accommodating First Amendment rights would

have a ripple effect on other inmates and staff (third

Turner factor), id. at 46a, and that there was not a

readily available alternative to AD 10.7 (fourth

Turner factor), id.

B. The Second Circuit’s Decision

On appeal, the Second Circuit affirmed,

concluding that AD 10.7 was reasonably related to the

same penological interests identified in the district

court’s decision. Pet. App. 13a. The Second Circuit

also held that the remaining Turner factors weighed

in favor of affirming AD 10.7 Id. at 21a–24a.

First, Respondent argued AD 10.7 was justified by

prison safety and security because the measure would

improve the efficacy of “cell shakedowns” where

inmate’s cells are searched for contraband and also

reduce inmate aggression. Pet. App. 16a.4 The Second

Circuit found that the mere presence of sexually

explicit materials in an inmate’s cell made it more

likely that a corrections officer would miss something

Respondent also argued that AD 10.7 would lead to less

bartering of sexually explicit photographs and therefore fewer

fights between inmates. Pet. App. 16a. Both the district court

and Second Circuit rightly rejected this argument because, if

anything, a ban on these materials would make them more

valuable and thus lead to more bartering among inmates. Id.

4

13

during their search because of “embarrassment,”

“disgust,” and “concerns for hygiene.” Id. at 17a. The

Second Circuit also agreed that sexually explicit

materials lead to inmate aggression based on

speculative testimony that sex offenders used

pornography to “manipulate” victims of sexual

assault within prison. Id.

Second, Respondent argued that eliminating

prisoner’s access to sexually explicit materials was

reasonably related to their rehabilitation. Pet. App.

18a. The Second Circuit, like the district court before

it, declined to take any position on whether AD 10.7

could be justified as a rehabilitative measure for all

inmates in the general prison population. Id. Rather,

the Second Circuit only agreed that AD 10.7 was

reasonably related to the rehabilitation of sex

offenders, who represent a portion of the overall

prison population. Id. Respondent claimed it would be

“impossible” to limit AD 10.7’s ban on sexually

explicit materials to just these inmates, id. at 20a,

despite the fact that inmates are routinely subject to

different levels of privileges and restrictions.

Finally, Respondent argued that a prohibition on

sexually explicit materials would improve workplace

conditions for female staff because some prisoners

have, in the past, displayed these images in their cells

and masturbated in front of female staff. Pet. App.

14a. Existing prison regulations prohibited both

practices and masturbating in front of female staff

was among the highest class of offense for prisoners.

Id. at 30a–31a. There was also testimony that

depriving inmates of a healthy outlet for sexual

release would, if anything, worsen the workplace

14

conditions for female staff. Id. at 37a–38a.

Nonetheless, the Second Circuit found it reasonable

for the DOC to permanently ban sexually explicit

materials in order to address the isolated,

problematic conduct of particular prisoners. Id. at

15a.

REASONS FOR GRANTING THE PETITION

I. The

Second

Circuit’s

Decision

Is

Inconsistent With This Court’s Precedent

Regarding the Constitutional Review of

Prison Regulations.

Petitioners do not dispute that this Court has

affirmed sometimes severe restrictions on the

constitutional rights of prisoners. But the scope and

breadth of AD 10.7 distinguish it from prior cases

involving restrictions on the publications inmates can

receive and possess. See Beard v. Banks, 548 U.S. 521

(2006); Thornburgh, 490 U.S. at 401; Turner, 482 U.S.

at 78. The Second Circuit overlooked or downplayed

these features, which confirm that there must be a

particularly strong showing of reasonableness in this

case.

First, AD 10.7 prohibits all pictorial sexually

explicit materials, subject only to the narrow and

inconsistently applied artistic exception. This is

unlike other cases where a prison restricts a narrow

class of materials, leaving prisoners with ample,

alternative means of exercising their First

Amendment rights. For example, in Turner, the

Missouri Department of Corrections prohibited

inmates from corresponding with inmates at other

15

institutions unless the inmates were immediate

family, the correspondence concerned “legal matters,”

or was pre-approved by prison officials. Turner, 482

U.S. at 81–82. The Court emphasized that this

restriction did not “deprive prisoners of all means of

expression” and barred communications “only with a

limited class of other people with whom prison

officials have particular cause to be concerned.” Id. at

92. In Thornburgh, the restriction was even narrower

and concerned a federal regulation that authorized

the prison’s warden to reject a publication if the

warden determined that the publication was

detrimental to the “security, good order, or discipline”

of the facility or might facilitate criminal activity.

Thornburgh, 490 U.S. at 404–05. Again, the Court

noted that the regulation permitted a “broad range of

publications to be sent, received, and read” and thus

afforded alternative means of expression. Id. at 417–

18.

Here, prisoners in Connecticut lack adequate

alternatives under AD 10.7 to exercise their right to

possess and view pictorial depictions of nudity and

sexual activity. The Second Circuit defined the right

at issue as the right to receive “sexually explicit

communications” and cited the availability of written

depictions of nudity and sexual activity and the

artistic exception as alternative means of expression.

Pet. App. 21a. This ignores the appreciable

differences between these types of materials. It is well

accepted that a picture is worth a thousand words.

And to put it bluntly, an erotic novel or an art book

with fleeting images of nudity or sexual activity is not

a reasonable substitute for Playboy.

16

Second, AD 10.7 represents a blanket

determination that all sexually explicit materials are

problematic and must be rejected. This puts the

regulation at odds with the approach the Court

endorsed in Thornburgh, where the prison warden

made a specific determination that a particular

publication was actually detrimental to legitimate

penological objectives. Thornburgh, 490 U.S. at 404–

05. In that case, the Court was “comforted by the

individualized nature of the determinations

required by the regulation,” which rejected

“certain shortcuts that would lead to needless

exclusions.” Id. at 416–17 (emphasis added); accord

Owen v. Willie, 117 F.3d 1235, 1237–38 (11th Cir.

1997) (dismissing claim brought by prisoner who had

specific nude photographs rejected following an

individualized review, but noting that “[d]efense

counsel does not contest that a blanket ban on nude

photographs would be unconstitutional”).

Along the lines of Thornburgh, the DOC could

have revised AD 10.7 in a manner that prohibited

certain categories of sexually explicit materials that

were deemed especially problematic. Indeed, the

Commissioner initially proposed exactly this type of

two-tiered system whereby inmates could possess

depictions of nudity, but not sexual activity. Pet. App.

33a. Yet the DOC Committee ultimately (and

unreasonably in Petitioners’ view) rejected this twotiered system in favor of an all-or-nothing approach.

Finally, AD 10.7 applies to all inmates. This is

different from prior cases where the most severe

restrictions on publications were tailored to specific

categories of inmates. For example, in Beard v.

17

Banks, 548 U.S. 521 (2006), this Court reviewed a

tiered-policy restricting access to newspapers,

magazines, and photographs for certain problematic

inmates placed in the most restrictive level of the

prison’s long-term segregation unit. The deprivation

of First Amendment rights was severe—in some cases

a complete ban on all publications—but the Court

ultimately agreed that the policy bore a reasonable

relation to incentivizing improved behavior for

problem inmates, after which point the restrictions

would be lifted. Id. at 531; accord Overton v. Bazzetta,

539 U.S. 126, 134–35 (2003) (affirming visitation

restrictions on inmates with multiple substanceabuse violations because the restriction was a “proper

and even necessary management technique to induce

compliance with the rules of inmate behavior”).

Again, DOC could have drafted a narrower version

of AD 10.7 that, for example, prohibited sex offenders

or inmates with disciplinary issues from receiving or

possessing sexually explicit materials. But having

failed to do so, there must be an especially strong

showing of reasonableness to justify a constitutional

deprivation applicable to all inmates. This is

particularly true where, as discussed below, many of

the alleged concerns underlying AD 10.7 are limited

to sex offenders or other problematic inmates who

decide to violate existing regulations.

II. The Second Circuit’s Decision Is Wrong.

While each of the Turner factors weigh in favor of

striking down AD 10.7, the first factor—whether

there is a “valid, rational connection” between the

between regulation and the legitimate government

18

interest put forth to justify it—looms large in the

analysis. Turner, 482 U.S. at 89. Indeed, “[i]f the

connection between the regulation and the asserted

goal is ‘arbitrary and irrational,’ then the regulation

fails, irrespective of whether the other factors tilt in

its favor.” Shaw v. Murphy, 532 U.S. 223, 229–30

(2001).

The Second Circuit agreed that three penological

interests—safety and security, rehabilitation of sex

offenders, and workplace safety—were reasonably

related to banning pictorial sexually explicit

materials from DOC facilities. But the evidence at

trial proved otherwise. In each case, these interests

had, at best, an attenuated connection to AD 10.7 that

does notwithstanding the reasonableness review this

Court described in Turner. Accordingly, AD 10.7 is not

rationally justified by legitimate government

interests and the Second Circuit erred in applying

Turner and dismissing Petitioner’s claims

Safety and Security. Because safety and security

are omnipresent concerns for a prison facility,

Respondent “cannot merely brandish the words

‘security’ and ‘safety’” and expect judicial deference—

otherwise,

every

regulation

would

survive

constitutional scrutiny. Campos v. Coughlin, 854 F.

Supp. 194, 207 (S.D.N.Y. 1994).

Here, the Second Circuit found a rational

connection between AD 10.7 and improving the

efficacy of cell shakedowns because prison staff,

particularly female staff, might be disinclined to

search sexually explicit materials and might miss

something during the search. Pet. App. 17a. This sort

19

of speculative analysis is a poor excuse for depriving

Petitioners of their First Amendment rights. It is the

quintessential “exaggerated response” to otherwise

legitimate prison concerns that this Court warned

about in Turner. Turner, 482 U.S. at 87. Cell

shakedowns would undoubtedly be improved if

prisons banned the possession of all books,

magazines, newspapers, political flyers, and religious

texts that might distract or upset the sensibilities of

prison staff. Hopefully courts would swiftly reject

these sorts of restrictions as an unreasonable and

exaggerated response to prison contraband. The

result should be no different just because the

publication contains sexually explicit materials.

In addition, Second Circuit credited the DOC’s

argument that AD 10.7 was rationally related to

reducing inmate aggression because, according to the

Committee, some victims of prison sexual assault

reported that their attackers used sexually explicit

materials as a “tool of manipulation.” Pet. App. 17a.

The Department did not offer any first-hand evidence

of this having occurred within Connecticut prisons. As

with cell shakedowns, this is an attenuated chain of

reasoning that is insufficient to the task. There must

be a rational connection between AD 10.7 and

reducing instances of sexual assault within prison.

Second-hand evidence suggesting that some victims

were shown sexually explicit materials does not mean

that removing these materials from prisons is a

rational means of combatting these same assaults.

Rehabilitation of Sexual Offenders. The

Second Circuit also found that AD 10.7 was

reasonably related to the rehabilitation of sexual

20

offenders. Pet. App. 19a. Petitioners dispute that this

is the case because, among other things, sex offenders

will have to confront sexually suggestive materials

when released and Connecticut was already largely

successful in the rehabilitation of sex offenders at the

time the DOC revised AD 10.7. Id. at 43a. Moreover,

Petitioners proved at trial that the recidivism rate

among sex offenders within the State of Connecticut

actually increased since the institution of AD 10.7.

Pet. App. 57a, 107a (arrest rate for sex offenders was

3.6% in a 2010 study compared with 4.2% in a 2017

study).

Nonetheless, even crediting that a ban on sexually

explicit materials furthers the rehabilitation of sex

offenders, Petitioners are not sex offenders. And

outside of this case, Petitioners are not aware of any

precedent for banning all prisoners from receiving or

possessing constitutionally-protected materials to

assist in the rehabilitation in a small subset of the

prison population. The Second Circuit explained that

it was reasonable for the DOC to conclude that it was

“impossible” to stop sex offenders from possessing

these materials with anything less than a total ban.

Pet. App. 20a. The DOC did not put forth any evidence

to support this claim, which ignores that cells are

routinely searched for contraband.5

5 In addition, the DOC now provides inmates with computer

tablets that could be programmed with individualized

permissions such sex offenders could not access sexually explicit

materials. Conn. Dep’t of Corrections, Tablets for DOC Inmates,

https://portal.ct.gov/DOC/Common-Elements/CommonElements/Tablet-Information (last visited June 14, 2022).

21

Moreover, this sets a problematic precedent that

can be easily abused because it grants prison officials

free reign to impose facility-wide restrictions to

address concerns that are only applicable to a small

subset of inmates. Prisons routinely classify inmates

based on their level of risk and restrictions that might

make sense for some prisoners but not others. But

based on the Second Circuit’s reasoning, restrictions

that are justified by concerns with specific inmates

can be imposed on all inmates so long as prison

officials can make the vague and largely unverifiable

claim that it would be impractical to enforce the

restriction in a targeted fashion.

Workplace Conditions. Finally, the Second

Circuit agreed that there was a rational connection

between AD 10.7 and improving the workplace

conditions for female staff. Pet. App. 15a. Specifically,

the DOC pointed to problematic and inappropriate

behavior by certain inmates who would display

sexually explicit images in their cells and masturbate

in front of female staff. Id. at 14a–15a.

Existing regulations, however, already prohibited

this behavior. Pet. App. 30a–31a. Accordingly, the

most direct and effective way of reducing these

infractions would be to vigorously enforce the existing

prohibitions or increase the severity of the available

punishment. See Turner, 482 U.S. at 90 (“[T]he

existence of obvious, easy alternatives may be

evidence that the regulation is not reasonable, but is

an ‘exaggerated response’ to prison concerns.”). For

example, the DOC already classified certain offenses

such as assault on a corrections officer as “elevated”

Class A offenses that automatically trigger more

22

punishment and could have done the same with these

offenses, which were only committed by an extremely

limited number of prisoners. Pet. App. 47a.

Finally, the Second Circuit noted that “common

sense” dictated that banning sexually explicit

materials would improve workplace conditions when

the evidence at trial established that, if anything,

banning these materials would worsen conditions for

female staff. Pet. App. 15a. Lay and expert testimony

at trial confirmed that AD 10.7 would contribute to a

more sexually charged workplace, with more inmates

objectifying female staff. Id. at 37a–38a, 40a.

Similarly, there was no evidence that sexually explicit

materials played any role in any recorded instances of

public indecency or that the removal of these

materials would lead to fewer instances of public

indecency. See Payton v. Cannon, 806 F.3d 1109, 1110

(7th Cir. 2015) (noting that masturbation “seems . . .

a practice that male inmates can be expected to

engage in even if they have no access to nude

photographs”).

Indeed,

Petitioners

presented

evidence at trial demonstrating that incidents of

public indecency were still committed by prisoners

while in punitive segregation where they were not

allowed any publications, let alone sexually explicit

publications. E.g., Pet. App. 116a–17a.

III. This Case Presents an Ideal Vehicle for the

Court to Clarify Reasonableness Review

Under Turner.

The touchstone of the analysis described in Turner

is reasonableness, a standard that by this Court’s own

admission is not meant to be “toothless.” Thornburgh,

23

490 U.S. at 414. The Second Circuit’s decision is,

however, emblematic of the difficulty lower courts

have with applying this standard, particularly when

they are also instructed to defer to the “informed

discretion of corrections officials.” Turner, 482 U.S. at

90. Reasonableness review coupled with deference to

prison officials, however, creates the inevitable

temptation to rubber stamp infringements of inmate’s

liberty so long so as prison officials can draw some

connection—no matter how attenuated—between the

restriction and a legitimate government interest.6

For example, Petitioners reviewed every court of

appeals’ decision from 2010 to the present citing

Turner. Of these approximately 530 reported cases,

Petitioners found but a handful of successful

challenges to a generally applicable prison regulation

where the restrictions at issue were severe and

patently unreasonable. Heyer v. U.S. Bureau of

Prisons, 984 F.3d 347, 366 (4th Cir. 2021) (entering

judgment for deaf prisoner in challenge to BOP policy

that denied him access to videophone calls in order to

communicate with other deaf people); Nordstrom v.

Petitioners are not the first to observe that, in practice,

Turner has become largely toothless. See Kristen Schnell,

Turner’s Insurmountable Burden: A Three-Circuit Survey of

Prisoner Free Speech Claims, 6 Colum. Hum. Rts. L. Rev. Online

123, 155–57 (2022) (reviewing cases from the Third, Fifth, and

Ninth Circuits applying Turner and concluding that courts have

given largely unbridled deference to prison officials); David M.

Shapiro, Lenient in Theory, Dumb in Fact: Prison, Speech, and

Scrutiny, 84 Geo. Wash. L. Rev. 972, 988–95 (2016) (arguing that

lower courts afford excessive deference to speech restrictions

when applying Turner).

6

24

Ryan, 856 F.3d 1265, 1274 (9th Cir. 2017) (reversing

dismissal of First Amendment claims based on prison

policy and practice of inspecting every page of all

outgoing legal mail); Wall v. Wade, 741 F.3d 492, 499–

500 (4th Cir. 2014) (holding that prison policy

requiring physical indicia of Islamic faith in order to

receive accommodations for the observance of

Ramadan fails the Turner analysis). The

overwhelming majority of cases applying the Turner

analysis come out the other way.

This appeal thus presents an opportunity for the

Court to reaffirm that reasonableness review should

not be toothless. Unlike many cases involving alleging

violations of inmate’s constitutional rights,

Petitioners here were represented by counsel and

were able to assemble a thorough evidentiary

record—including expert testimony and documents

and information obtained from Respondent through

discovery—confirming that AD 10.7 rests on

threadbare assertions of legitimate penological

interest that fall apart upon scrutiny.

25

CONCLUSION

For the foregoing reasons, the Court should grant

the petition for a writ of certiorari.

Respectfully submitted,

Palak Sharma

DAY PITNEY LLP

One Jefferson Road

Parsippany, NJ 07054

Matthew J. Letten

Counsel of Record

Joseph K. Scully

Elizabeth P. Retersdorf

Rosendo Garza, Jr.

DAY PITNEY LLP

242 Trumbull Street

Hartford, CT 06103

(860) 275-0100

mletten@daypitney.com

Counsel for Petitioners

June 16, 2022