# Petition for Writ of Certiorari — Scully v. Fromer > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0692%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1987 - **Citation:** 484 U.S. 909 ## Text 3 4 “1 6 9 : : Supreme Court, U.S. Bi. ED JUL 23 987 IN THE Supreme Court of the United States“ " | October Term, 1987 CHARLES J. SCULLY, HAROLD J. SMITH, WALTER KELLY, EVERETT W. JONES, THOMAS A. COUGHLIN Ill and HIRSHEL JAFFEE, Petitioners, — against - YEVGEN FROMER, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ROBERT ABRAMS Attorney General of the Ste‘e of New York Attorney for Petitioners 120 Broadway New York, New York 10271 (212) 341-2621 O. PETER SHERWOOD Solicitor General and Counsel of Record LAWRENCE S. KAHN Deputy Solicitor General JUDITH A. GORDON DOUGLAS D. ARONIN MARTHA O. SHOEMAKER Assistant Attorneys General of Counsel No. IN THE Supreme Court of the United States October Term, 1987 CHARLES J. SCULLY, HAROLD J. SMITH, WALTER KELLY, EVERETT W. JONES, THOMAS A. COUGHLIN II and HIRSHEL JAFFEEF, Petitioners, — against - YEVGEN FROMER, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ROBEKT ABRAMS Attorney General of the State of New York Attorney for Petitioners 120 Broadway New York, New York 10271 (212) 341-2621 O. PETER SHERWOOD Solicitor General and Counsel of Record LAWRENCE S. KAHN Deputy Solicitor General JUDITH A. GORDON DOUGLAS D. AR®NIN MARTHA O. SHOEMAKER Assistant Attorneys General of Counsel i QUESTIONS PRESENTED 1. In light of O’Lone v. Shabazz and Turner v. Safley, was the court of appeals in error in applying the least restrictive alternative test in reviewing a state inmate’s free exercise claim against a prison directive that limits the length of inmates’ beards for security and safety rea- sons? 2. In light of O’Lone v. Shabazz and Turner v. Safley, was the court of appeals in error in invalidating, on free exercise grounds, the prison directive’s limitation on beard length when the court acknowledged that the secu- rity and safety reasons for the limitation are important, the limitation is rationally connected with them, the in- mate can practice his religion in other ways and the pub- lic, as well as the prison population, will face increased security and safety risks if the limitation is not enforced uniformly? TABLE OF CONTENTS PAGE Table of Authorities ......................00.. iv I nS hk ha ek da abn ness euvdaavacs 1 PR ch bg WE aes co oo a ede odeea bb Seeks 2 State Directive Involved ...................0... 2 Statement of the Case .....................5... 3 as, Ta aii Ata eon ee, See a nna i 3 B. District Court Proceedings .............. 4 1. Claims and Motions ................. 4 Ry ee Pee ane | | RR ror nea Pens 11 Reasons for Granting the Writ .................. 17 Sa SR Le RT SN Pe Da 22 Appendix: Judgment and Opinion of the United States Court of Appeals for the Second Circuit............... la Judgment of the United States District Court for the Southern District of New York ........... 15a Order of the United States District Court for the Southern District of New York Modifying Order Consolidating Hearing On Preliminary Injunction with Trial Nunc Pro Tunc ...................... 17a Memorandum Decision of the United states District Court for the Southern District SR Te es Died eee eat ed Le 19a ill TABLE OF CONTENTS PAGE Order of the United States District Court for the Southern District of New York Consolidating Hearing on Preliminary Injunction with Trial ...... 40a New York State Department of Correctional Services Directive No. 4914, as Revised ........-- 4la Iv TABLE OF AUTHORITIES PAGE Cases Bell v. Wolfish 441 U.S. 520 (1979) ............. 12, 13, 16, 18 Block v. Rutherford 468 U.S. 576 (1984) ....................... 20 Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119 (1977) .......... 12, 13, 15, 16, 18 O’Lone v. Shabazz, oe ah Ga Ne CHOU Tb ooo oven ck 17, 18, 19, 21 Pell v. Procunier, ee ee Ee CUI as civebinwareee toe 18 Shabazz v. O’Lone, 782 F. 2d 416 (3d Cir. 1986) (en banc), rev'd. 107 S. Ct. 2254 (1987) ............... 13 Turner v. Safley, 107 S. Ct. 2254 (1987) ........... 17, 18, 20, 21 Wali v. Coughlin, 754 F.2d 1015 So (° 3). .) 12, 13, 16, 17, 18, 19 Federal Statutes SS BD Sern erences 2. TC 2 AE SM os ca acc uececuecccedcoe 15 CG MP ORMED } The deputy commissioner testified that the Direc- tive’s one-inch limitation on beard length allows correc- tions personnel and other law enforcement authorities to identify inmates immediately and with reasonable cer- tainty. App. at 34a-36a. In consequence, he said, the limitation contributes to discipline within a correctional facility because it prevents inmates from substituting for one another; reduces the likelihood that inmates will try to escape or succeed in escaping; and facilitates the prompt recapture of inmates who do escape. /d.; trial transcript (“tr.”) at 345-47, 348, 351, 353, 354, 357, 366-68, 381-82, 513-515, 516, 534. As the deputy commissioner explained, corrections personnel rely on appearance, particularly facial struc- ture, as the best and most practical means of immedi- ately identifying inrnates. App. at 34a; tr. at 344-46, 347-48, 350, 351. Short one-inch beards allow immediate identification, he said, because facial structure remains visible whereas longer beards interfere with immediate identification because they obscure facial structure. App. at 34a; tr. 351, 514.4 Short beards also allow immediate (footnote continued from preceding page) Law School and an adjunct professor at CUNY’s Center for Ur- ban Education. Tr. at 396-97. Mr. Pochoda had been a staff attorney with the Prisoners’ Rights Project of the Legal Aid Soci- ety from 1971 to 1975. App. at 35a n.7; tr. 397, 398. Mr. Pochoda had held executive positions in numerous organiza- tions that monitor prison conditions and publish reports and stan- dards, e.g., the New York State Commission on Corrections, the New York State Division of Criminal Justice Services Corrections Task Force and the New York City Board of Corrections. App. at 35a n.7. He never had any direct responsibility for the secu- rity or administration of a correctional facility. Tr. 415-17. The district court qualified Mr. Pochoda as an expert in prison security and administration. App. at 35a n.7; tr. 418. 4 The deputy commissioner testified that the one-inch limitation on beard length was the maximum accommodation that the Depart- ment could make for inmates if it was to continue to meet the need for immediate identification. App. at 34a; tr. 517. (footnote continued on next page) 8 identification, he said, because they provide but two ef- fective options in appearance, beard or no _ beard, whereas longer beards, which can be removed, short- ened, rolled, braided or sectioned, interfere with immedi- ate identification because they provide numerous options, or disguises. App. at 34a; tr. 351, 353, 374. As the deputy commissioner also explained, if in- mates can use their beards to disguise themselves, they are more likely to try to escape, and to succeed, because disguise improves their chance of leaving a correctional facility unnoticed and diminishes the risk that their ab- sence will be detected immediately. App. at 34a-35a; tr. at 346-47, 348, 357-58, 366-68, 381-82, 513-15, 534. In- mates who can use their beards to disguise themselves also are more likely to evade prompt recapture if they escape, he said, because their ability to change their ap- pearance makes it more difficult for law enforcement authorities, and the public, to identify them on sight. App. at 34a-35a; tr. at 351, 353, 354, 357, 366-68, 514-15. Mr. Pochoda agreed with the deputy commissioner that beards can be a source of disguise for inmates, but, he said, the short one-inch beards the limitation permits provide the same opportunities for disguise as the longer beards it prohibits. App. at 35a; tr. 427-28. Mr. Pochoda also said that rephotographing inmates who re- style their beards or let them grow would provide a less restrictive means for satisfying the identification objective (footnote continued from preceding page) The deputy commissioner also testified that, for identification purposes, he preferred inmates to be clean-shaven, which the Department required until March 11, 1982, when the one-inch limitation was introduced by a federal consent decree. App. at 34a; tr. 344-45, 514, 517. To support his preference, the deputy commissioner cited the example of two inmates who had escaped from the Green Haven visiting room after shaving their one-inch peg oy and changing to women’s clothes in the bathroom. App. at 34a. 9 of the limitation. App. at 36a; tr. 424, 434.5 He cited the New York City Department of Corrections, which does not have a limitation on beard length and relies on serial identification photographs, to support his point. Tr. at 424-26. In rebuttal, the deputy commissioner testified that the serial photographs Mr. Pochoda proposed as an alter- native to the limitation would not be practical or effec- tive. The deputy commissioner said that the numerous photographs necessary to track length and style changes in an inmate’s beard could not be distributed to law en- forcement authorities, or posted for the public, quickly enough after an escape to be useful and, in any event, an inmate probably would not disclose the beard length and style he planned to wear to escape while he was in a correctional facility. Tr. 351, 353-54, 357, 359, 366-68, 382, 514-15. The deputy commissioner also pointed out that rules that might be appropriate for the New York City Department of Corrections, which has several facili- ties for pretrial detainees and misdemeanants, are not appropriate for the state prison system with fifty facilities and 32,600 convicted inmates, including some 25,000 convicted of violent crimes. Tr. at 506-509, 510, 511, 512, S132 5 Directive No. 4914 requires a clean-shaven identification photo- graph when an inmate is committed to the Department’s custody and a subsequent identification photograph, or photographs, if an inmate changes his appearance by growing or shaving a one-inch beard or mustache. App. at 41a 9 III(A), 43a 9 II(C). 6 The deputy commissioner used the federal prison system, which does not have a limitation on beard iength, to illustrate the point, observing that only 17 percent of its inmates are convicted of violent crimes in contrast to 77 percent of the inmates in the New York system. Tr. at 511-12. The deputy commissioner also observed that the California prison system, which has inmates with characteristics comparable to New York’s inmates and no limitation on beard length, had 828 escapes from an inmate population of 43,000 in 1984 whereas New York had 20 escapes from an inmate population of 32,600. Tr. at 510, 513. 10 The deputy commissioner testified that the Direc- tive’s one-inch limitation on beard length also prevents inmates from using their beards to secrete contraband. App. at 36a. He said that he did not know of any in- stance of an inmate concealing contraband in a one-inch beard and that if inmates had longer beards, they would be more likely to try, and to succeed in, concealing con- traband in them. /d. at 37a; tr. 373-75, 515-16.’ Mr. Pochoda acknowledged that correctional facili- ties need to control contraband. Tr. at 442. But he said that he was not aware of any reports of inmates secreting contraband in their beards from the New York City De- partment of Corrections or the federal prison system, which, like the city Department of Corrections, does not have a limitation on beard length. Tr. at 440. Mr. Pochoda also said that the searches of inmates’ beards and scans with hand-held metal detectors, conducted pe- riodically in all New York correctional facilities, provide less restrictive means for satisfying the control of contra- band objective of the limitation. App. at 37a; tr. at 431, 442-43. He suggested the installation of free-standing metal detectors in interior hallways as a further precau- tion. Tr. at 441-42. The deputy commissioner testified, in addition, that the Directive’s one-inch limitation on beard length is a neutral rule that can be applied uniformly in a setting where exceptions increase the likelihood of confronta- tions between inmates and corrections personnel and be- tween inmates and inmates (app. at 37a, 38a; tr. at 356, ? At trial, one of petitioners’ attorneys demonstrated that he could conceal a metal nail file, resembling a common inmate weapon, in his four-inch beard. App. at 36a-37a. When he shook his head, the nail file stayed in place. J/d.; tr. 386-87. Another of petitioners’ attorneys tried to conceal the same nail file in his one-inch beard. Tr. at 387. He could not because the nail file would not stay in place. /d. at 388. 11 379-81, 389-90)® and that the limitation protects the per- sonal safety and hygiene of the inmates as well.® C. Opinions In a November 25, 1986 memorandum decision, the district court declared the one-inch limitation on beard length in Directive No. 4914 unconstitutional as applied to the responderit. App. at 39a. The court first deter- mined that the respondent had a sincere religious belief against trimming his beard that was rooted in Jewish law. Id. at 21a, 27a-28a. 8 The deputy commissioner pointed out that the federal prison sys- tem, which does not have a limitation on beard length, had 13 violent inmate deaths in an inmate population of 32,000 in 1984 whereas the New York prison system, with almost five times more inmates convicted of violent crimes, had only seven violent in- mate deaths in an inmate population of 32,600. Tr. 510, $11-12, 513. The deputy commissioner also pointed out that the California prison system, which has inmates with characteristics comparable to New York inmates and no limitation on beard length, had 16 violent inmate deaths in an inmate population of 43,000 in 1984. ‘an. Sad. 9 The deputy commissioner noted the extensive industrial and food service programs New York correctional facilities provide for in- mates and said that beards longer than one-inch would increase the risk of accidents in the former and of contamination in the latter. App. at 38a; tr. 354-55, 370. He pointed out that in- mates with beards conforming to the limitation are required to wear beard guards, if appropriate, when they work in either pro- gram but often remove them, apparently because the guards are uncomfortable. Tr. 355-56, 383. The deputy commissioner also noted the risk of lice and scabies infestation and said that it would increase in relation to increased beard length. App. at 38a; tr. at 368-69. Mr. Pochoda said, in response to the deputy commissioner, that beard guards should be sufficient to avoid any increased risk of industrial accidents or food contamination from longer beards, and, if the guards were not sufficient, the Department would have to change the work assignments of the inmates whose beards increased the risk. App. at 38a; tr. 423, 431, 433. Mr. Pochada also said that lice and scabies infestation had to be considered case-by-case and that if an inmate had a beard for religious reasons, it could be removed, at the direction of a physi- cian, only as a last resort. App. at 38a; tr. 423-24. 12 The district court next considered the appropriate standard of judicial review for the respondent’s free exer- cise claim against the limitation. App. at 29a-34a. The petitioners argued, under Bell v. Wolfish, 441 U.S. 520 (1979), and Jones v. North Carolina Prisoners’ Labor Un- ion, Inc., 433 U.S. 119 (1977), that the court had to up- hold the limitation if they showed that it was justified by legitimate corrections objectives and respondent did not show that the limitation represented an exaggerated re- sponse to the objectives. App. at 30a-31a. The respondent argued, under Wali v. Coughlin, 754 F.2d. 1015 (2d Cir. 1985), that the court had to invalidate the limitation unless the petitioners proved that it was necessarily related to important corrections objectives and did not impose any greater restrictions on the respon- dent’s religious observance than were necessary to ac- complish the objectives. App. at 33a. The least restrictive alternative test that the respondent advocated was the most stringent of the three tests Wali adopted for review- ing prison rules restricting inmates’ fundamental constitu- tional rights. /d. at 29a-30a, 32a-33a.'° 10 The first of the two less stringent Wali tests gave nearly absolute deference to the judgment of corrections authorities. 754 F.2d at 1033. The test applied when the fundamental constitutional right the inmate asserted was inherently inconsistent with incar- ceration. /d. The second less stringent Wali test required the inmate to prove that the restriction on the fundamental constitutional right he as- serted was not supported by a reasonable corrections objective. 754 F.2d at 1033. The test applied when the asserted protected activity was “presumptively dangerous” or the restriction on it ~apgoae but one of numerous ways to engage in the activity. The least restrictive alternative test, which heightened the burden of proof and shifted it to the corrections authorities, applied when the asserted protected activity was not inherently inconsis- tent with incarceration, was not “presumptively dangerous” and when the restriction deprived, rather than limited, the inmate’s right to engage in the activity. 754 F.2d at 1033. 13 The district court concluded that Wali was not incon- sistent with Bell or Jones and that it was controlling. App. at 31a. The court agreed with the respondent that Walli’s least restrictive alternative test was applicable. /d. at 32-33a. It noted that it had been persuaded by the Third Circuit opinion in Shabazz v. O’Lone, 782 F.2d 416 (3d Cir. 1986) (en banc), rev’d, 107 S. Ct. 2400 (1987), to reject the petitioners’ argument in favor of the exagger- ated response test. App. at 31la-32a. The district court then evaluated the five security and safety reasons petitioners advanced at trial for the limitation under the least restrictive alternative test. App. at 34a-38a. The court accepted, without question, the importance of each of the five reasons for the limita- tion at the outset of its discussion, noting, in particular, the “substantial” importance of effective identification of inmates (id. at 34a) and the “magnitude” of the contra- band problem. /d. at 37a. But it held that the limitation denied the respondent his right to free exercise of his religion because the petitioners had not proved that the limitation was no more restrictive than necessary to ac- complish any of its accepted security and safety objec- tives. /d. at 34a, 38a-39a. The district court supported its conclusion by point- ing out means for accomplishing the limitation’s security and safety objectives that it thought would be effective and less restrictive of the respondent’s religious obser- vance. App. at 34a-38a. The court said, with respect to the limitation’s inmate identification objective, that peti- tioners’ evidence at trial established that allowing in- mates to wear beards heightened the difficulties of identification. /d. at 34a. But, the court said, it was not persuaded that beards longer than one inch, which are prohibited by the limitation, posed significantly greater identification risks than one-inch beards, which are per- mitted by the limitation. /d. at 34a-35a. If longer beards 14 did pose significantly greater identification risks, the court added, serial photographs, tracking significant changes in beard lengths and styles, would provide a less restrictive means for effectively identifying inmates, al- beit at potentially increased cost and inconvenience to corrections authorities. /d. at 36a. With respect to the limitation’s objective in control- ling contraband, the court said that inmates could secrete weapons or drugs in their hair, clothing or body cavities just as easily as in their beards. The court concluded that the periodic searches and scans with metal detectors that inmates had to undergo would be as effective in detecting contraband in beards as they were in detecting contra- band in, or about, the body and that the searches and scans had to be preferred to the limitation because they were less restrictive. /d. In support of its observation that the inmates could secrete the weapons and drugs in their beards, the court noted that one of the petitioners’ attorneys demonstrated at trial that he could conceal a metal nail file, resembling a common inmate weapon, in his four-inch beard, which would be prohibited by the limitation. App. at 36a-37a. The court did not mention that another of petitioners’ attorneys demonstrated at trial that he could not conceal the metal nail file in his one-inch beard, which would be permitted by the limitation. Tr. 387. In support of its observation that inmates could se- crete weapons and drugs in their hair, clothing or body cavities as easily as in their beards, or, perhaps, in pref- erence to their beards, the court cited the testimony of Deputy Commissioner Coombe. App. at 37a. According to the court’s paraphrase, the deputy commissioner said that he had never heard of an instance of an inmate con- cealing contraband in his beard. /d. The court did not mention that, in the testimony it paraphrased, the deputy 1S commissioner was expressly referring to his experience under the one-inch limitation. Tr. 373-75. The court also said that the Department could not insist on the uniform application of the limitation given the exceptions, for religious reasons, it had made to the limitation and to other prison rules. App. at 37a-38a."' Nor, the court said, could the Department rely on the protections the limitation provides for the personal safety and hygiene of inmates since inmates could be protected as well by less restrictive means. ‘2 On January 29, 1987, the district court entered a de- claratory judgment and permanent injunction, limited to the ninth claim in the amended complaint, that con- formed with its memorandum decision. App. at Sa, 15a, 18a. The petitioners then appealed to the United States Court of Appeals for the Second Circuit under 28 U.S.C. § 1292(a)(1) and Fed. R. Civ. P. 54(b). App. at Sa, 16a. The court of appeals affirmed the district court judg- ment on April 24, 1987. App. at 1a. At the outset of the discussion of merits in its opinion, the court acknowl- edged that, under Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119 (1977), and Pell v. Procunier, "' The exception to the limitation that the court ncted permits American Indian inmates to release their hair from ponytail fasteners on ceremonial occasions. App. at 37a-38a, 42a §1III(B)(2)(c) (Directive No. 4914). The other exceptions the court noted permit inmates to wear re- ligious symbols and to observe their Sabbaths and their dietary laws. App. at 38a. ‘2 According to the court, beard guards were sufficient to avoid any increased risk of industrial accidents and food contamination from beards longer than one inch. App. 38a. See p. 11, n.9, ante. If beard guards proved not to be sufficient, the court said that inmates with beards longer than one inch could be reas- signed to jobs that did not involve machines or food. /d. If an inmate's beard, in fact, became infested with lice or scabies, the court said that the infestation should be treated with medi- cated shampoo, and the beard removed only as a last resort. App. at 38a. See p. 11 n.9, ante. 16 417 U.S. 817 (1974), an inmate’s right to free exercise of his religion could be restricted by neutral prison rules that serve legitimate corrections objectives. App. at 7a. The court of appeals then turned to Wali v. Coughlin, 754 F.2d 1015 (2d Cir. 1985), for the appropriate stan- dard of judicial review. App. at 8a-12a. The court re- jected the petitioners’ several arguments that Wali was incorrectly decided (id. at 9a-11a), including the argu- ment that Bel! v. Wolfish, 441 U.S. 520 (1979), and Jones did not permit a more stringent standard than the exag- gerated response test. jd. at 9a-10a. After reviewing the three tests Wali adopted (app. at 8a-9a), the court of appeals agreed with the district court that the most stringent of the tests, the least restrictive alternative test, was applicable. /d. at 9a. See p.12 n.10, ante. The court rejected petitioner’s alternative argument that the only appropriate Wali test was the second, which applied to restrictions on protected activities that were “presumptively dangerous” or proscribed but one of nu- merous ways to engage in the activity. /d. at 8a-9a, lla-12a. See p. 12 n.10, ante. According to the court, beards longer than one-inch could not be considered “presumptively dangerous” because the trial record showed that the New York City Department of Correc- tions and the federal and California prison systems do not have limitations on beard length. /d. at 11a.3 Nor, according to the court, was it relevant that the one-inch limitation proscribed only one of the ways the respondent '3 The court did not mention the differences between the New York prison system and the detention facilities operated by the New York City Department of Corrections or the differences between the New York prison system and the federal prison system that appear in the record. See p. 8-9 & n.6, 11 n.8, ante. The court also did not mention that the California prison systern has more escapes than the New York prison system and that both the California system and the federal prison system have more violent inmate deaths than the New York prison system. See pp. 8-9 & n.6, 11 n.8, ante. 17 could be observant because the right he was asserting, to refrain from trimming his beard, was “more than a right to practice Judaism in a general way or to merely wear a beard.” /d. at 12a. At the conclusion of its opinion, the court of appeals reviewed the district court’s application of the least re- strictive alternative test to the five security and safety rea- sons for the limitation on beard length. App. at 12a-13a. The court agreed with the district court, for the reasons that court stated, that the limitation denied the respon- dent his right to free exercise of his religion because the petitioners had failed to prove that it was not more re- Strictive than necessary to accomplish any of its security and safety objectives. /d. REASONS FOR GRANTING THE WRIT The decision of the court of appeals conflicts with the recent decisions of this Court in Turner v. Safley, 107 S. Ct. 2254 (1987), and O’Lone v. Shabazz, 107 S. Ct. 2400 (1987). In holding that the Department directive limiting the length of inmates’ beards was unconstitu- tional as applied to the respondent who has a religious belief against trimming his beard, the court of appeals applied a “least restrictive alternative” standard. The court relied on its prior holding that “‘it is incumbent upon prison officials to show that a particular restriction is necessary to further an important governmental inter- est and that the limitations on freedoms occasioned by the restriction are no greater than necessary to effectuate the governmental objective involved’.” App. at 9a (quot- ing Wali v. Coughlin, 754 F.2d 1015, 1033 [2d Cir. 1985]). The standard, which the court of appeals first announced in Wali as the proper test for determining the validity of regulations that infringe inmates’ First Amend- ment rights, was expressly rejected by this Court in Safley and Shabazz. | 18 This Court explained the correct standard for deter- mining the validity of prison regulations which interfere with inmates’ religious practices in O’Lone v. Shabazz, 107 S. Ct. at 2404-05. In that case, the Court applied to a free exercise claim, the standard it had just announced in Turner v. Safley: “when a prison regulation impinges On inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological inter- ests.” 107 S. Ct. 2261. This standard, the Court made clear, was already implicit in the holdings of Pell v. Procunier, 417 U.S. 817 (1974); Jones v. North Carolina Prisoners’ Union, 433 U.S. 119 (1977); and Bell v. Wolfish, 441 U.S. 520 (1979). The Court expressly rejected the application of a “least restrictive alternative” test in Safley, holding that “prison officials do not have to set up and then shoot down every conceivable alternative method of accommodating the claimant’s constitutional complaint.” 107 S. Ct. at 2262. Acting before Safley and Shabazz, the court of ap- peals considered this case in light of the standard it had previously established in Wali v. Coughlin, 754 F.2d at 1033. Under Wali, deference to the decisions of state corrections officials is appropriate only if the asserted constitutional right is “inherently inconsistent with estab- lished penological objectives” or is “presumptively dan- gerous,” or if the regulation in question deprives the inmate of only one of several alternative means of exer- cising the right. If these conditions are not met, then any regulations restricting an inmates’ constitutional rights are invalid unless prison officials can meet Wali’s “least restrictive alternative” test. Jd. Applying the Wali stan- dard to this case, the court of appeals held that because these conditions had not been met, the “least restrictive alternative” test was the proper standard by which to judge the Directive’s validity. Finding that the Depart- 19 ment’s legitimate interests may be served by less restric- tive means, the court invalidated the Directive. This Court expressly rejected Wali in Shabazz, 107 S. Ct. 2404 n.**. It had already rejected the multi-tiered approach in Safley, explaining that “[t]he determination that an activity is ‘presumptively dangerous’ appears sim- ply to be a conclusion about the reasonableness of the prison restriction in light of the articulated security con- cerns. It therefore provides a tenuous basis for creating a hierarchy of standards of review.” 107 S. Ct. at 2261. Petitioners proved at trial that the Department’s re- striction on beard length served the “unquestionably im- portant” penological interests of facilitating the identification of escaped inmates and inhibiting the con- cealment of contraband. App. at 34a. Deputy Commis- sioner Philip Coombe, the prison administrator who is responsible for security in New York State’s fifty correc- tional facilities, testified that, in his considered profes- sional judgment, the alternatives to the Directive suggested by respondent, rephotographing and more fre- quent searches, would not satisfy the “substantial and important” objective of “effective identification of in- mates.” Jd. Deputy Commissioner Coombe explained that rephotographing was not a viable alternative to the Directive because distributing multiple photographs to police agencies in the event of an escape would obstruct the ability of these agencies, and the public, to identify and recapture escaped inmates quickly. Rephotographing an inmate’s many changes in beard length and styling, according to Deputy Commissroner Coombe, would also tax the Department’s scarce human resources and in- crease the opportunities for confrontation between cor- rectional officers and inmates. Deputy Commissioner Coombe also explained that contraband, ranging from deadly weapons to drugs, can be carried undetected in an untrimmed beard, but not in 20 a beard which complies with the Directive. Petitioners demonstrated this potential at trial when one of petition- er’s attorneys showed that he could hide and securely hold a nail file in his four-inch beard. App. at 36a. Another attorney, who had a short beard, could not hide the nail file in his beard. Deputy Commissioner Coombe rejected the alternative suggested by the respondent of more frequent searches of inmates’ beards because they would increase both the likelihood that dangerous contra- band would remain undetected and the potential for con- frontation between inmates and correction officers. In Safley, this Court delineated four factors that should be considered in determining the validity of prison regulations subject to constitutional challenge. The first factor is the existence of “a ‘valid, rational connection’ between the prison regulation and the legitimate govern- mental interest put forward to justify it.” 107 S. Ct. at 2262 (quoting Bloch v. Rutherford, 468 U.S. 576, 586 {1984]). The expert testimony of Deputy Commissioner Coombe regarding the prison administration’s interests in facilitating identification and inhibiting the possession of contraband, and the courtroom demonstration of the po- tential for secreting contraband in a long beard, demon- Strate that connection. The second factor “is whether there are alternative means of exercising the right that remain open to prison inmates.” 107 S. Ct. 2262. The record at trial shows that respondent has numerous alternative means of prac- ticing his religion: access to kosher food, contact with rabbis, availability of religious books and other items and the right to a religious head covering. The court of ap- peals rejected the validity of these alternatives, holding that “requiring [the respondent] to cut his facial hair would work a total deprivation of his religious belief that the beard must not be disturbed.” App. at 12a. In Shabazz, however, this Court considered it significant 21 that, although the respondents could not attend the weekly religious service at issue, which the Court noted was of “central importance” to them, “they are not de- prived of all forms of religious exercise but instead freely observe a number of their religious obligations.” 107 S. Ct. at 2406. A third factor delineated in Safley “is the impact ac- commodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.” 107 S. Ct. at 2262. Dep- uty Commissioner Coombe testified that the suggested alternatives of rephotographing and searching beards would significantly impact on both the allocation of re- sources and the potential for confrontation between in- mates and correction officers. In the face of such an impact, the court of appeals erred in failing to “be par- ticularly deferential to the informed discretion of correc- tion officials.” Jd. “(T]he absence of ready alternatives,” is the fourth factor bearing on the validity of the challenged regula- tion. This Court held that a prison regulation may not meet the reasonable relationship test “if an inmate claim- ant can point to an alternative that fully accommodates the prisoner’s rights at de minimis cost to valid penologi- cal interests.” 107 S. Ct. at 2262. The alternatives sug- gested by respondent and the courts below involve procedures that would inhibit the recapture of escaped inmates, make it more difficult to detect dangerous con- traband, and increase the likelihood of confrontation be- tween inmates and correction officers. These costs are hardly de minimis. Because the court of appeals rendered its decision before the decisions of this Court in Safley and Shabazz, it did not consider the justifications advanced by petition- ers in light of these recent decisions of this Court. Inas- much as the court of appeals applied a standard of 22 review which this Court has since expressly rejected, this case should be remanded to the court of appeals for re- consideration under the correct standard. CONCLUSION For the foregoing reasons, the petition for a writ of certiorari should be granted, the judgment of the United States Court of Appeals for the Second Circuit vacated and the case remanded to that court for reconsideration in light of O’Lone v. Shabazz and Turner v. Safley. Dated: New York, New York July 23, 1987 ROBERT ABRAMS Attorney General of the State of New York Attorney for Petitioners O. PETER SHERWOOD Solicitor General LAWRENCE S. KAHN Deputy Solicitor General JUDITH A. GORDON DOUGLAS D. ARONIN MARTHA O. SHOEMAKER Assistant Attorneys General of Counsel APPENDIX ea ee Ne ha) — la JUDGMENT AND OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT A> inp No. 1014—August Term, 1986 (Argued: April 1, 1987 Decided: April 24, 1987) Docket No. 86-2463 OO ee YEVGEN FROMER, Appellee, CHARLES J. SCULLY, HAROLD J. SMITH, WALTER KELLY, EVERETT W. JONES, THOMAS J. COUGHLIN, and HIRSHEL JAFFEE, Appellants. Before: FEINBERG, Chief Judge, TIMBERS and ALTIMARI, Circuit Judges. ee Appeal from a judgment entered in the Southern District of New York, Charles E. Stewart, Jr., District Judge, 649 F. Supp. 512 (S.D.N.Y. 1986), declaring a beard length directive unconstitutional as applied to an Orthodox Jewish state prison inmate and permanently en- joining state prison officials from enforcing the directive against the inmate or punishing him for his noncompli- ance. Affirmed. 2a Opinion of the Court of Appeals > Eugene A. Gaer, New York, N.Y. (Joel W. Sternman, Neil A. Miller, and Rosenman & Colin, New York, N.Y., on the brief), for appellee. Martha O. Shoemaker, Assistant Attorney General of the State of New York (Robert Abrams, Attorney General, and Lawrence S. Kahn, Deputy Solicitor General, and Jeffrey J. Slonim, Douglas D. Aronin, and Harvey M. Berman, Assistant Attorneys General, on the brief), for appellants. > TIMBERS, Circuit Judge: Appellants Charles J. Scully and others (collectively “appellants”) appeal from a judgment entered Janu- ary 29, 1987 in the Southern District of New York, Charles E. Stewart, Jr., District Judge, Fromer v. Scully, 649 F.Supp. 512, which granted appellee Yevgen Fromer (“appellee”) declaratory and injunctive relief after a bench triai on his claim under 42 U.S.C. § 1983 (1982). Appellee is an inmate in the custody ci the New York Department of Correctional Services (“the Depart- ment”). In his amended complaint in the instant § 1983 action, appellee challenged among other things the con- Stitutionality as applied to him of a Department Directive (“the Directive”) which requires inmates to shave or trim their beards to a length of no more than one inch. Ap- pellee claimed that his religious beliefs as an Orthodox Jew prohibit him from shaving, trimming, or cutting his facial hair and therefore that application of the Directive to him violated his right to free exercise of religion under 3a Opinion of the Court of Appeals the First and Fourteenth Amendments to the United States Constitution. The district court, after finding that appellee held a sincere religious belief, declared the Directive unconstitu- tional as applied to appellee and permanently enjoined appellants from enforcing it against him or punishing him for his noncompliance. On appeal, appellants claim, first, that the district court applied the wrong standard in evaluating the consti- tutionality of the Directive; and, second, that the Direc- tive is constitutional even when evaluated under the standard applied by the district court. Appellants do not challenge the district court’s finding that appeilee’s reli- gious belief regarding his beard was sincere. We hold, first, that the district court applied the cor- rect standard; and, second, that the court did not err in its application of that standard. We affirm, and we do so substantially for the rea- sons set forth in Judge Stewart’s excellent opinion. I. Judge Stewart’s opinion contains a comprehensive recital of the facts. Fromer, supra, 649 F. Supp. at 513-17. We assume familiarity with that opinion. We sum- marize here certain facts which warrant emphasis and those additional facts believed necessary to an under- standing of the issues raised on appeal. Appellee grew up in a small Orthodox Jewish com- munity in the Ukraine, Soviet Union. In 1975, after mov- ing to Brooklyn, New York, he became involved in the Lubavitch Hasidic movement. He lived and studied at a 4a Opinion of the Court of Appeals Lubavitch yeshiva until late 1977. In 1980, his obser- vance of Jewish laws began to deteriorate. In June 1982, he was arrested on a charge of selling cocaine. He has been in the custody of the Department since his convic- tion on the narcotics charge in March 1983. Soon after his incarceration began, he became convinced that his criminal activity was attributable to his failure to observe Jewish laws. While incarcerated at the Attica Correctional Facil- ity, appellee commenced the instant action pro se on August 8, 1984. His present counsel was appointed in November 1984. After his transfer to the Great Meadow Correctional Facility in January, 1985, he was disciplined twice for disobeying orders to trim his beard. Appellee filed an amended complaint in the instant action on February 3, 1985. The amended complaint names as defendants appellant Thomas J. Coughlin, who is the commissioner of the Department, and appellant Hirshel Jaffee, who is a Jewish Chaplain at one of the prisons at which appellee has been incarcerated. Each of the other defendants—appellants in this Court—is a Su- perintendent of a prison at which appellee has been or is incarcerated. The amended complaint contains nine claims, each alleging that appellants denied appellee certain constitu- tional rights in violation of § 1983. The Ninth Claim— the only one relevant to the instant appeal—alleges that the Directive is unconstitutional as applied to appellee to the extent that it prohibits inmates from growing facial hair in excess of one inch. On April 8, 1985, appellants filed a motion pursuant to Fed. R. Civ. BMli2(b)(1) and 12(b)(6) to dismiss the amended complaint a a Sa Opinion of the Court of Appeals In May 1985, the Department transferred appellee from the Great Meadow Correctional Facility to the Wallkill Correctional Facility. On his arrival at Wallkill, he was told that he would have to trim his beard. When he refused, he was sentenced administratively to 30 days solitary confinement at the Downstate Correctional Facil- ity—a maximum security prison. Appellee moved by or- der to show cause for a preliminary injunction barring appellants from compelling him to comply with the Di- rective and requiring that he be released from solitary confinement. The district court granted a temporary re- straining order to that effect on June 14, 1985. In an order entered July 10, the court denied appellants’ mo- tion of April 8 to dismiss the Ninth Claim of the amended complaint. The court also ordered consolida- tion of a hearing on appellee’s motion for a preliminary injunction and a trial on the merits of the Ninth Claim. Fed. R. Civ. P. 65(a)(2). At a six day consolidated hearing and trial in the Fall of 1985, the court heard evidence concerning ap- pellee’s religious beliefs and practices both before and during his incarceration; the place in Jewish law of the prohibition against trimming the beard; and the various justifications relied upon by the Department for the Di- rective. In its opinion filed November 25, 1986, the court declared the Directive unconstitutional as applied to ap- pellee and granted him permanent injunctive relief. Fromer, supra, 649 F. Supp. at 521-22. In the judgment entered January 29, 1987 on the court’s opinion, there was included a certificate pursuant to Fed. R. Civ. P. 54(b). This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1)(1982). 6a Opinion of the Court of Appeals For the reasons set forth below, we affirm the judg- ment of the district court. Il. The First Amendment provides in pertinent part that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof... ” The latter clause—the free exercise clause—is the basis for appellee’s challenge to the Directive. That clause is made applicable to the states by the Fourteenth Amend- ment. Cantwell v. Connecticut, 310 U.S. 296, 303-07 (1940). Although the free exercise clause by its terms ap- pears to impose an absolute proscription on the power of the government, only an individual’s belief is beyond gov- ernmental intrusion. The right to engage in a practice concomitant with religious belief always has been bal- anced against the state’s interest in applying neutral rules of conduct evenhandedly to all citizens. Reynolds v. United States, 98 U.S. 145, 166 (1878) (“Laws are made for the government of actions, and while they cannot in- terfere with mere religious belief and opinions, they may with practices.”); e.g., Hobbie v. Unemployment Appeals Commission, 107 S. Ct. 1046, 1048-51 (1987); Wisconsin v. Yoder, 406 U.S. 205, 213-15 (1972). The legal standard by which to evaluate the constitu- tionality of evenhanded application of a neutral restric- tion varies depending on the relationship between the individual asserting the right and the governmental entity imposing the restriction. Generally, an incidental! limiia- tion on the exercise of religion caused by application of a neutral law or regulation can be justified “only by proof by the State of a compelling interest.” Hobbie, supra, 107 S. Ct. at 1049. A restriction that would be impermissible 7a Opinion of the Court of Appeals when evaluated under that test, however, may pass con- stitutional muster in the context of the military. £.g., Goldman yv. Weinberger, 106 S. Ct. 1310, 1313-14 (1986). This is because “‘[jJudicial deference .. . is at its apo- gee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged’” /d. at 1313 (quoting Rostker v. Goldberg, 453 U.S. 57, 70 (1981)). Where, as here, an inmate asserts a free exercise challenge to application of a neutral prison rule, special considerations require departure from the general legal standard reaffirmed in Hobbie, supra, 107 S. Ct. at 1049. True, “convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison”, Bell v. Wolfish, 441 U.S. 520, 545 (1979), and “reasonable opportunities must be afforded to all prison- ers to exercise the religious freedom guaranteed by the First and Fourteenth Amendments without fear of pen- alty.” Cruz v. Beto, 405 U.S. 319, 322 n.2 (1972) (per curiam). Inmates, however, cannot expect the same free- dom from incidental limitations on the exercise of their religious practices as that enjoyed by those not incarcer- ated. Such freedoms often permissibly are restricted in order to achieve legitimate correctional goals. In evaluat- ing inmates’ claims of constitutional deprivations, there- fore, federal courts should “giv[e] appropriate deference to the decisions of prison administrators and appropriate recognition to the peculiar and restrictive circumstances of penal confinement.” Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 125 (1977); accord, Pell v. Procunier, 417 U.S. 817, 822-23 (1974). Such defer- ence plays a vital role in reaching the “mutual accommo- dation between institutional needs and objectives and the 8a Opinion of the Court of Appeals provisions of the Constitution that are of general applica- tion.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In Wali v. Coughlin, 754 F.2d 1015 (2d Cir.1985), we carefully examined these special considerations, and the Supreme Court cases from which they are derived, id. at 1029-33, in enunciating the legal standards to be applied to constitutional challenges by inmates. While recogniz- ing that, “[i]n the great majority of cases, it would be sheer folly for society to deny prison officials the discre- tion to act in accordance with their professional judg- ment”, id. at 1018, we observed that “it would be an abrogation of our responsibility as judges to assume... . a ‘hands off’ posture, requiring categorical acquiescence in such judgments.” Jd. Accordingly, we articulated three standards “drawn by reference to the nature of the right being asserted by prisoners, the type of activity in which they seek to engage, and whether the challenged restriction works a total deprivation (as opposed to a mere limitation) on the exercise of that right.” /d. at 1033. The first standard applies where the right asserted by the prisoner “is found not to exist within the prison context, i.e., where it is held to be inherently inconsistent with established penological objectives”. Jd. In such cases, “the proper role of the court ends with the deter- mination that the asserted right does not inhere within the prison’s walls.” Jd. The second standard—applicable if the assertedly protected activity is “presumptively dangerous” or if the challenged restriction “proscribe[s] only one of numer- ous available means of enjoying protected liber- ties”—places the burden on the prisoner “to demonstrate 9a Opinion of the Court of Appeals that the restriction is not supported by a reasonable justi- fication.” Jd. The third standard applies where “the activity in which prisoners seek to engage is not presumptively dan- gerous, and where official action (or inaction) works to deprive rather than merely limit the means of exercising a protected right”. /d. “In theseglimited circumstances, it is incumbent upon prison officials to show that a par- ticular restriction is mecessary to further an important governmental interest, and that the limitations on free- doms occasioned by the restriction are no greater than necessary to effectuate the governmental objective in- volved.” Jd. In the instant case, the district court held that the third standard of Wali applied to appellee’s challenge to the Directive. Fromer, supra, 649 F. Supp. at 518. We agree. Appellants make several arguments to support their claim that the court applied an incorrect legal stan- dard. We shall examine each of appellants’ arguments. First, appellants argue that Wali does not apply to the instant case because it is factually distinguishable from Wali. In Wali, we struck down a content based re- striction on the right of inmates to read certain printed material. Appellants contend that Wali should be con- tined to its facts and that, unlike the restriction in Wali, the Directive here involved is neutral on its face. We do not read Wali so narrowly. As must be apparent from our extended analysis in Wali, we intended to establish standards by which to evaluate constitutional claims of any nature brought by inmates. Second, appellants urge us to adopt a standard not articulated in Wali. They assert that the “majority” of those circuits which have considered constitutional claims by inmates after Bell, supra, 441 U.S. 520, and Jones, 10a Opinion of the Court of Appeals supra, 433 U.S. 119, have applied the “exaggerated re- sponse” standard. They cite, e.g., Tisdale v. Dobbs 807 F. 2d 734, 739 n.3 (8th Cir. 1986) (declining to decide whether to adopt a “ ‘more restrictive than necessary’ ” standard since the inmate “did not present substantial evidence that the prison officials’ belief was unreason- able or that their response to the security consideration was exaggerated”) (quoting Hill v. Blackwell, 774 F.2d 338, 341 (8th Cir. 1985)); Caldwell v. Miller, 790 F.2d 589, 596 (7th Cir. 1986) (“Prison rules that restrain the free exercise of religion are justified only if they are ‘rea- sonably adapted’ to achieving an important penological objective”); Madyun v. Franzen, 704 F.2d 954, 960 n.7 (7th Cir. 1983) (“At least seven different standards for analyzing free exercise claims have been suggested”; no mention of “exaggerated response” standard). An examination of these cases and others makes it clear that other circuits have not approached the problem with such uniformity as appellants would have us believe. More important, even if we were satisfied that there is the “majority” suggested by appellants, we would decline to accept their thinly disguised invitation to overrule Wali based on the decisions of other circuits either before or after Wali. We carefully analyzed Bell, supra, 441 U.S. 520, and Jones, supra, 433 U.S. 119, in formulating the three Wali standards. Wali, supra, 754 F.2d at 1029-34. In Wali we rejected appellant Coughlin’s arguments based on those cases. See Brief for Appellant at 21-30 in Wali, supra, 754 F.2d 1015 (No.84-2387). We reject the same arguments again here. Third, in another veiled invitation to overrule Wali, appellants argue that the instant case should be analo- gized to Goldman, supra, 106 S. Ct. 1310. There the Su- preme .Court held that the interest of the Air Force in lla Opinion of the Court of Appeals uniformity outweighed a commissioned officer’s asserted right to wear a yarmulke indoors. The Court stated that, “when evaluating whether military needs justify a par- ticular restriction on religiously motivated conduct, courts must give great deference to the professional judgment of military authorities concerning the relative important of a particular military interest.” /d. at 1313. We do not read Goldman as extending beyond the context of the military. The Supreme Court gave no indication that its holding or analysis was to apply outside the military where, the Court observed, “ ‘[j]udicial deference. . . is at its apo- gee’ ”. Id. at 1313 (quoting Rostker, supra, 453 U.S. at 70). Fourth, appellants argue that, even if Wali applies to appellee’s challenge to the Directive, the district court erred in applying the third Wali standard. They argue that appellee’s claim should be analyzed under the sec- ond Wali standard. They contend that a beard in excess of one inch in length is “presumptively dangerous” and that the Directive “proscribe[s] only one of numerous available means of enjoying protected liberties.” Wali, supra, 754 F.2d at 1033. We disagree. The evidence at trial of appellee’s claim showed that the New York City, federal, and California prison sys- tems all permit inmates to wear beards of any length. See also Moskowitz v. Wilkinson, 432 F. Supp. 947, 950 n.8 (D. Conn. 1977) (Newman, J.) (20 states permit beards in all correctional facilities). A beard in excess of one inch in length therefore cannot be considered presumptively dangerous. We also reject appellants’ argument that the Direc- tive does not work a total deprivation of appellee’s as- serted right since he is permitted to wear a short beard and to practice his religion in other ways. We indicated 12a Opinion of the Court of Appeals in Wali that a prison regulation does not work a total deprivation if it “does no more than define ‘the time, place or manner’ in which prisoners may enjoy a pro- tected right”. Wali, supra, 754 F.2d at 1033. Here, ap- pellee asserts more than a right to practice Judaism in a general way or merely to wear a beard. He asserts a right to refrain from trimming, cutting, or shaving his beard. By its nature such a right can be enjoyed only at one “time, place or manner”. The district court held, and we agree, that “requiring [appellee] to cut his facial hair would work a total deprivation of his religious belief that the beard must not be disturbed.” Fromer, supra, 649 F. Supp. at 518. Accordingly, we hold that the district court correctly applied the third Wali standard. Il. Under the third Wali standard, a district court must determine whether prison officials have sustained their burden of showing “that a particular restriction is neces- sary to further an important governmental interest, and that the limitations on freedoms occasioned by the re- striction are no greater than necessary to effectuate the governmental objective involved.” Wali, supra, 754 F.2d at 1033. In the instant case, appellants claimed that the Di- rective was necessary to further the governmental objec- tives of identification of inmates, protection against hidden contraband, fairness to other inmates, and safety and hygiene, In its well reasoned and comprehensive opinion, the district court examined each of these govern- mental objectives, Fromer, supra, 649 F. Supp. at 519-21, and concluded that appellants had failed to establish that 13a Opinion of the Court of Appeals the Directive is no greater than necessary to effectuate them. /d. at 519. On appeal, appellants repeat those arguments made to, and properly ruled upon, by the district court. We have examined all of appellants’ arguments on this claim and hold that they are without merit for the reasons stated by the district court. Further discussion by us would entail nothing more than a paraphrasing of a stel- lar district court opinion. Accordingly, we hold that the district court correctly applied the third standard of Wali. IV. To summarize: In all but the most extraordinary cases, courts must pay high deference to decisions of prison officials which have the incidental effect of restricting inmates’ constitu- tional rights. This well established principle was central to our formulation in Wali of the standards by which to evaluate inmates’ claims of constitutional defrivations. In the instant case, we agree with the district court that a beard in excess of one inch is not presumptively dangerous and that the Directive, if applied to appellee, would work a total deprivation of his religious belief that the beard must not be disturbed. Accordingly, we hold that the district court correctly concluded that appellee’s challenge to the Directive falls into the narrow class of cases that should be evaluated under the third standard of Wali. We also hold that the court correctly applied that standard. 14a Opinion of the Court of Appeals We affirm the judgment of the district court granting . appellee declaratory and injunctive relief on his Ninth Claim in the amended complaint. Affirmed. 1Sa JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK YEVGEN FROMER, i, Plaintiff, -against- HAROLD J. SMITH, WALTER KELLY, EVERETT W. JONES, THOMAS A. COUGHLIN III, and HIRSHEL JAFFEE, Defendants. / CHARLES J. SCULLY, " Civ. 5612(CES) JUDGMENT Plaintiff having moved this Court for a preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure; and the Court having, by order dated July 8, 1985, and modified January 16, 1987, consoli- dated a hearing of that motion with a trial on the merits of the Ninth Claim for Relief; and the Court having, by opinion and order dated November 25, 1986, granted plaintiff's motion and finally determined the Ninth Claim for Relief; and it now appearing to the Court that there is no just reason for delay in the entry of judgment on the Ninth Claim for Relief, it is ORDERED AND ADJUDGED, that the portion of Di- rective # 4914 of the New York State Department of Cor- rectional Services which requires inmates to trim their beards to one inch in length is declared unconstitutional as applied to plaintiff; and it is further 16a District Court Judgment ORDERED AND ADJUDGED, that defendants and their officers, agents, servants, employees and attorneys (“defendants”) are enjoined from trimming, shaving, or in any other way shortening plaintiff's beard; from order- ing plaintiff to trim, shave or otherwise shorten his beard; from punishing plaintiff for refusing to trim, shave, or otherwise shorten his beard; and from with- holding any privileges and benefits from, or taking any other adverse action against, plaintiff because of his re- fusal to trim, shave or otherwise shorten his beard; and it is further ORDERED AND ADJUDGED, that defendants shall re- store to plaintiff all good time credits and any other privi- leges and benefits lost because of his past refusals to trim his beard and shall expunge from his record all ref- erences to disciplinary proceedings held because of those violations; and it is further ORDERED AND ADJUDGED, that, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, it is ex- pressly determined that there is no just reason for delay in the entry of this judgment, and it is expressly directed that judgment enter accordingly. Dated: New York, New York January 27, 1987 /s/ Charles E. Stewart United States District Judge 17a ORDER OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK MODIFYING ORDER CONSOLIDATING HEARING ON PRELIMINARY INJUNCTION WITH TRIAL NUNC PRO TUNC UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK YEVGEN FROMER, Ba Plaintiff, -against- HAROLD J. SMITH, WALTER KELLY, EVERETT W. JONES, THOMAS A. COUGHLIN III, and HIRSHEL JAFFEE, Defendants. / CHARLES J. SCULLY, " Civ. 5612(CES) ORDER CHARLES E. STEWART, District Judge: This Court having issued an order on July 8, 1985 pursuant to Rule 65(a) of the Federal Rules of Civil Pro- cedure consolidating the hearing on plaintiff's application for a preliminary injunction with a trial on the merits with respect to the Eighth and Ninth Causes of Action set forth in the amended complaint; and the said hearing having taken place, and the Court having rendered its decision by an opinion dated November 25, 1986; and the said decision having determined plaintiff's claim for injunctive relief and having made no determination on any claim for monetary damages, it is ORDERED, that this Court’s order of July 8, 1985 is modified, nunc pro tunc, to consolidate the hearing on eee ite 18a District Court Nunc Pro Tunc Order the application for a preliminary injunction with a trial on the merits with respect to the Ninth Cause of Action, and to reserve determination of the Eighth Cause of Action to the time of disposition of the remainder of the complaint in this action. Dated: New York, New York January 16, 1987 /s/ Charles E. Stewart United States District Judge 19a MEMORANDUM DECISION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK YEVGEN FROMER, i, Plaintiff, -against- HAROLD J. SMITH, WALTER KELLY, MEMORANDUM EVERETT W. JONES, DECISION THOMAS A. COUGHLIN II, and HIRSHEL JAFFEE, Defendants. / CHARLES J. SCULLY, " Civ. 5612(CES) STEWART, District Judge: Plaintiff Yevgen Fromer, an inmate in the custody of the New York State Department of Correctional Services (“DOCS”), challenges the constitutionality of DOCS Di- rective #4914 to the extent that it requires him to shave or trim his beard to a length of no more than one inch.’ Fromer, an Orthodox Jew, claims that his religious be- liefs prohibit him from shaving or trimming his facial hair. During the six days of trial in this action, we heard 1 Plaintiff commenced this action pro se in 1984 claiming retaliatory transfer and deprivation of kosher food and religious services. Following appointment of counsel, Fromer filed an amended complaint which added claims regarding the beard restriction. By order dated July 8, 1985, we consolidated the hearing on plain- tiff's application for a preliminary injunction with the trial on the merits of the beard claims. 20a District Court Memorandum Decision from numerous witnesses regarding the sincerity of Fromer’s religious beliefs and the concerns of DOCS that underlie the beard regulation. We now conclude that Fromer is entitled to the injunctive and declaratory relief that he seeks. Our findings of fact and conclusions of law are set forth below. SINCERITY OF RELIGIOUS BELIEF Directive #4914 establishes basic grooming stan- dards for inmates in the New York state prison system. Pl. Ex. 1. The directive provides that upon being com- mitted to the custody of DOCS, inmates must get a hair- cut and shave “for reasons of health and sanitation as well as to permit the taking of the initial identification photograph.” Thereafter, however, “[a]ll inmates may grow a beard and/or mustache not to exceed one (1) inch in length.” In order to establish his first amendment interest in challenging Directive #4914, Fromer, as an initial matter, must demonstrate that his beliefs are sincerely held and “are, in his own scheme of things, religious.” United States v. Seeger, 380 U.S. 163, 185 (1965); see also Fur- gan v. Georgia State Board of Offender Rehabilitation, 554 F. Supp. 873, 876 (N.D. Ga. 1982). In evaluating the religious nature of Fromer’s beliefs, this court must not employ an objective, content-based approach to defining religious belief but rather must examine the plaintiff’s “inward attitudes towards a particular belief system.” Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir. 1984). Plaintiff asserts that his refusal to trim his beard is based on the Torah, specifically, on a passage in Leviticus, one of the five books of Moses, which states that one should not mar the corners of the beard. Tr. 104. Fromer testified that he views the wearing of an ae z1la District Court Memorandum Decision untrimmed beard as “the main bulwark that would be used against evil,” Tr. 103, in that the beard is a physi- cal, unalterable, public symbol of Jewish law “to the highest degree.” Tr. 103-04, 234-35. Fromer further stated that he wants to leave his beard untrimmed “to prevent myself from any further breaking the law, civil law or Jewish law or any law, and stay with the hundred percent way of Judaism.” Tr. 114. We find that Fromer has met his burden of showing that his refusal to obey Directive #4914 is grounded in a sincere religious belief that trimming the beard violates Jewish law. Fromer’s refusal to trim his beard is consis- tent with his religious background and training and is rooted in a body of Jewish law. Furthermore, we find Fromer’s testimony regarding his religious beliefs to be credible and find his conduct since he entered prison to be consistent with his professed beliefs. Fromer was born in 1959 in a town in the Ukraine, Soviet Union, where he lived until the age of fifteen. Tr. 81-82. As Orthodox Jews, Fromer’s family members ob- served “all the practices . . . most orthodox Jews do” in the United States, including, for example, keeping Pass- over strictly. Tr. 83. Members of Fromer’s family were leaders in the town’s small Jewish community, and weekly religious services were held in Fromer’s house. Fromer himself as a child learned how to read Hebrew and studied the Bible with various teachers. At age thir- teen he had a baremitzvah and began to observe the relig- ious practices imposed upon adult men. Tr. 83-88. While he was in the Soviet Union, Fromer did not receive religious instruction regarding the maintenance of a beard. On cross-examination, Fromer admitted that before he left the Ukraine, the general practice of his male relatives was to either trim or shave their beards. 22a District Court Memorandum Decision Tr. 164. However, Fromer also testified that he was told that the rabbi grandfather after whom he was named had an untrimmed beard all his life. Tr. 166. Also, one of the two shoctim, or religious officials, in his community had an untrimmed beard. Tr. 165. Fromer resolved in his youth that “one day when I will be able to I will have a beard.” Tr. 89. In 1975, Fromer and his mother arrived in Brooklyn. Tr. 90. Shortly after his arrival, Fromer enrolled in two yeshivas associated with the Lubavitch Hasidic move- ment. He moved into a Lubavitch dormitory, where he iived until late 1977. Tr. 90-91. During this period he did not discuss with any of his teachers or relatives whether trimming the beard was permitted. Tr. 174. Fromer knew that at least some of his uncles trimmed their beards. However, he observed that all the teachers at his yeshivas had long untrimmed beards and that none of the boys who lived in his dormitory trimmed their fa- cial hair. Tr. 91-92, 94, 96-97, 224. Around late 1977, Fromer became a bus driver for schools operated by the Lubavitch movement. Fromer continued his religious studies with two men, who told him that Orthodox Jews were forbidden to disturb their beards. Tr. 94. In early 1978, Fromer went to Los Ange- les to assist a rabbi in starting a Lubavitch camp for Rus- sian immigrants. Tr. 96. Fromer returned to Brooklyn in late 1978 and started a transportation business that pri- marily serviced yeshivas. Tr. 97. During the years when Fromer was enrolled in the yeshivas and was in Los Angeles, he maintained an un- trimmed beard. Tr. 97. However, around 1980, he expe- rienced a business setback and decided that if he became more assimilated into the society around him, he would be able to gain more customers. Accordingly, he began 23a District Court Memorandum Decision trimming his beard and then shaved it off entirely. In addition, he grew his hair longer, shortened his prayers, and wore his yarmulke sporadically. Tr. 98-99. During this period, he engaged in the criminal activity that led to his incarceration. Fromer testified that in early 1982 he decided that he wanted to resume Jewish religious practices. He be- gan to grow his beard again and vowed that he would completely return to Judaism after his financial problems were over. Tr. 100. At the time of his arrest on a charge of selling cocaine in June 1982, he was bearded. Tr. 102. During the eight months Fromer spent in the Brook- lyn House of Detention prior to his sentencing, he did not ~ trim his beard. Fromer testified that he came to believe that he had ended up in prison because he had failed to abide by Jewish law. Accordingly, he began to study Judaism and observe religious practices that he had pre- viously abandoned. Tr. 103-04. Fromer entered the custody of DOCS in March 1983. Upon his admission to Downstate Correctional Fa- cility, he was told that he was required to remove his beard. Fromer testified that he requested that an electric shaver rather than a razor be used if he had to be shaved, Tr. 105-07, because he believed that using an electric shaver was less of a violation of Jewish law than using a razor. See Tr. 180. As a result of his request, Fromer stated, he was handcuffed and prodded with a stick by one correction officer while another shaved him with a razor. Tr. 107. After this initial shave, Fromer let his beard grow undisturbed until an officer at Green Haven Correctional Facility, where Fromer had been transferred, told him to bring his beard into compliance with the one-inch regula- 24a District Court Memorandum Decision tion. Fromer then requested that his mother send him an electric shaver, which he used to shave the upper part of his cheeks and neck. However, Fromer did not shave his jaw or near his ears in order to comply with the biblical prohibition on marring “the five corners of the beard.” Tr. 109-10. In the summer of 1983, Fromer was transferred to a different cellblock within Green Haven. At that time, Fromer stopped shaving and trimming his beard com- pletely, both because no correction officer pressured him and because his conviction that his beard should not be trimmed became strengthened. Tr. 113-14. Fromer had intensified his study of Judaism and had attended a ser- mon by a Lubavitcher regarding the reasons why Jews have untrimmed beards. Tr. 220, 226. In addition, Fromer was influenced by the fact that Sheldon Silver, an attorney and rabbi with whom Fromer met to discuss re- ligious practices at Green Haven, had a long untrimmed beard. Tr. 226-28. In April 1984, Fromer was transferred to Attica Cor- rectional Facility, where he was told to trim his beard to.. one inch. Tr. 121. Fromer wrote to Superintendent Harold J. Smith to protest that the application of Direc- tive #4914 to him violated his first amendment rights. PI. Ex. 7A. Fromer stated that as an Orthodox Jew, he con- sidered his beard part of his “religious dress.” He added that he did “not claim exemption in the cutting of my beard out of personal appearance objectives, but rather out of religious tenets.” After Smith denied Fromer an exemption, Fromer filed a grievance with the Attica in- mate grievance committee. Pl. Ex. 7B. Although the grievance was denied, Fromer never received a direct or- der to trim his beard while at Attica, nor did he receive any misbehavior reports there. Tr. 136. 25a District Court Memorandum Decision In January 1985, Fromer was transferred to Great Meadow Correctional Facility. Tr. 138. Rabbi Wein- berg, the Jewish chaplain at Great Meadow, requested that Deputy Superintendent Cassidy excuse Fromer from shaving or trimming his beard, explaining: “Y. Fromer is an Orthodox Jew of Lubavitch Hassidic sect. These Jews, for religious reasons do not shave or trim their beards.” Pl. Ex. 24. However, Fromer was twice disci- plined for disobeying an order to trim his beard and re- quired to submit to counseling. Pl. Ex. 8-11. In February 1985, Fromer commenced the portion of this action which challenges Directive #4914. In May 1985, Fromer’s request to be transferred from Great Meadow, a maximum security prison, to Wallkill Correctional Facility, a medium security prison, was granted. Tr. 148. On the day he arrived at Wallkill, he was told that he would have to trim his beard. Fromer explained that this lawsuit was pending in federal court. Tr. 149. However, Fromer was found guilty of failing to comply with a direct order to trim his beard and was subsequently sentenced to thirty days in a spe- cial housing unit. Pl. Ex. 13. Inmates in special housing units are confined to their cells twenty-three hours per day and are denied many of the privileges available to general population inmates. Because Wallkill has no spe- cial housing unit, Fromer was transferred to Downstate to serve his sentence. Tr. 152. In addition, Fromer lost one month of good time as well as commissary and tele- phone privileges. In June 1985, this court granted Fromer’s motion for injunctive relief barring enforcement of Directive #4914 against him and directing his release from the special housing unit. To demonstrate that his beliefs regarding his beard are grounded in Jewish law, plaintiff presented the testi- 26a District Court Memorandum Decision mony of Rabbi Moshe Wiener,? who has written a treatise on the growth and cutting of the beard in Jewish law. Rabbi Wiener testified extensively as to the origins of the biblical prohibition on disturbing the beard and stated that “it is the opinion of the mainstream of Jewish authorities throughout the centuries that even trimming the beard should be definitely avoided and proscribed according to Jewish law.” Tr. 21. He explained: [T]he custom of Jews . . . throughout the centuries was not to disturb the beard in any manner whatso- ever. In fact, the cutting of the beard was always considered an act of religious desecration and sacri- lege and was considered an act of basic negating of one’s religious functions and religious beliefs. Tr. 20. Rabbi Wiener testified that, in his opinion, an observant Jewish man is required to refuse to comply with the portion of Directive #4914 that limits beards to one inch in length. Tr. 30. As evidence of plaintiff's insincerity, defendants point to the facts that Fromer did not ask a rabbi whether he should trim his beard, Tr. 218-20, and that he cut his hair on a day when Jewish law would appear to prohibit such an activity. Tr. 195. They characterize his account of his initial forcible shave at Downstate as “manifestly incredible,” noting that Fromer failed to file a grievance after this alleged incident and that no “use of force” or “unusual incident” report was written up by corrections personnel. Tr. 320-21. In addition, a counselor at Great Meadow described plaintiff's attitude toward his beard problem as “lighthearted.” Tr. 289. Defendants further argue that Fromer, during a visit with his mother and 2 Rabbi Wiener has been ordained by the Mirrer Yeshiva and the United Lubavitcher Yeshiva and is presently director of the Jewish Community Council of Greater Coney Island. Tr. 9-10. 27a District Court Memorandum Decision cousin at Wallkill, nodded when his cousin assured a counselor that plaintiff would trim his beard. Tr. 259. Finally, they cite to Fromer’s inconsistent adherence to an Orthodox Jewish lifestyle and assert that Fromer did not cease trimming his beard until he began this action. As their religious expert, defendants called Rabbi Moshe Tendler, a professor of Talmudic law at Yeshiva University. Rabbi Tendler testified that although Jewish law prohibits shaving the face with a razor, Tr. 620, “with the rarest exception, all people who consider them- selves to be meticulously observant in Jewish law” be- lieve that trimming the beard is not only allowed but indeed is required before certain holidays and events. Tr. 617. Rabbi Tendler further stated that Jewish law requires obedience to the civil law of the state, including prison regulations, as long as not anti-semitic in nature. Tr. 631-32. According to Rabbi Tendler, Jewish law would also require Fromer to accede to his mother’s re- quest to trim his beard in order to avoid a transfer to another prison that would make it more difficult for her to visit him. Tr. 635-36. We find that the evidence, taken as a whole, estab- lishes the sincerity of Fromer’s religious belief. Fromer’s refusal to trim his beard is consistent with his upbringing as an Orthodox Jew and with his education at Lubavitch yeshivas. Moreover, Rabbi Wiener’s testimony estab- lished that the practice of not disturbing the beard is grounded in a recognized body of Jewish doctrine. Although Rabbi Tendler vigorously disputed Rabbi 3 Rabbi Tendler was ordained by Yeshiva University and is chair- man of the biology department there. He is a member of the Beth Din rabbinic court and is on the executive committee of the Union of Orthodox Rabbis of the United States. His father-in-law was Rabbi Moshe Feinstein, a leading Talmudic scholar until his death earlier this year. Tr. 602-04. 28a District Court Memorandum Decision Wiener’s views, he did concede the existence of rabbini- cal opinion prohibiting the trimming of the beard. We do not attempt to resolve the controversy between the two rabbis, for “the judicial process is singularly ill equipped to resolve [intrafaith] differences in relation to the Relig- ious Clauses.” Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707, 715 (1981). Furthermore, “the guarantee of free exercise is not lim- ited to beliefs which are shared by all of the members of a religious sect.” Jd. at 715-16; accord, Moskowitz v. Wilkinson, 432 F. Supp. 947, 949 (D. Conn. 1977) (“[Tlhe fact that some Jews do not object to shaving, or that others accept the distinction between shaving and cutting, does not defeat the plaintiff's claim. It is his own religious belief that is asserted, not anyone else’s.”); Monroe v. Bombard, 422 F. Supp. 211, 215 n.4 (S.D.N.Y. 1976) (“It is not for the courts to decide which practices or observances are or are not strict requirements of a particular faith.”).¢ The sincerity of Fromer’s belief is also evinced by his conduct since his incarceration. Although it is obvi- ous that Fromer at times has departed from the tenets of his faith, we are persuaded that his commitment to Or- thodox Jewish observance has intensified as a result of his religious studies and reflection while in prison. Fur- thermore, having examined the photographs in evidence, we find that Fromer has been consistent in his refusal to trim his beard since the end of summer 1983, even though repeatedly threatened with disciplinary action. 4 Plaintiff’s Exhibits 23, 24, and 25 and defendants’ Exhibit BB, all of which were offered after trial, were admitted into evidence. 29a District Court Memorandum Decision STANDARD OF REVIEW Having found that Fromer has a sincere, religious belief which prohibits him from trimming his beard, we must determine what standard of review to apply to Fromer’s claim that Directive #4914’s grooming require- ments infringe upon his first amendment right to freely exercise his religion. We begin with the proposition that “la] prisoner does not shed . . . basic First Amendment rights at the prison gate.” Procunier v. Martinez, 416 U.S. 396, 422 (1974) (Marshall, J., concurring). Furthermore, “a prisoner retains those First Amendment guarantees, including the right to participate in practices which are an integral part of his religious faith, ‘that are not incon- sistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.’” Moor- ish Science Temple of America, Inc. v. Smith, 693 F.2d 987, 990 (2d Cir. 1982) (quoting Pell v. Procunier, 417 U.S. 817, 822 (1974)). Because security is the main objective of prison administration, however, “prison officials must have broad latitude to adopt rules that protect the safety of inmates and corrections personnel and prevent escape or unlawful entry.” United States v. Cohen, 796 F.2d 20, 22 (2d Cir.), cert. denied, 93 L. Ed. 2d 122 (1986) (citing Bell v. Wolfish, 441 U.S. 520, 547 (1979)). In Wali v. Coughlin, 754 F.2d 1015 (2d Cir. 1985), the Second Circuit recently set out a tripartite standard by which to evaluate claimed violations of prisoner rights. The standard is “drawn by reference to the nature of the right being asserted by prisoners, the type of activ- ity in which they seek to engage, and whether the chal- lenged restriction works a total deprivation (as opposed to a mere limitation) on the exercise of that right.” Jd. at 1033. First, where the right asserted is held to be inher- ently inconsistent with established penological objectives, 30a District Court Memorandum Decision judicial deference to the judgment of corrections officials . should be nearly absolute. Second, where the activity sought to be engaged in is presumptively dangerous, def- erence should be extremely broad, though not categori- cal. Third, [w]here . . . the activity in which prisoners seek to engage is not presumptively dangerous, and where official action (or inaction) works to deprive rather than merely limit the means of exercising a pro- tected right, professional judgment must occasion- ally yield to constitutional mandate. In these limited circumstances, it is incumbent upon prison officials to show that a particular restriction is necessary to further an important governmental interest, and that the limitations on freedoms occasioned by the re- Striction are no greater than necessary to effectuate the governmental objective involved. Id. Defendants argue that the Wali analysis does not govern here. As they point out, Wali was a first amend- ment censorship action involving a prior restraint on ac- cess to information, not a free exercise of religion suit. Defendants contend that under Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119 (1977), and Bell v. Wolfish, 441 U.S. 520 (1979), when an inmate brings a free exercise challenge to a regulation justified by legitimate penological objectives, courts must defer to the judgment of expert prison administrators unless the inmate can show, by substantial evidence, that the regu- lation constitutes an exaggerated reaction to security con- siderations. Defendants point out that such a standard has been adopted by a number of circuits. E.g., Hill v. Blackwell, 744 F.2d 338, 342-43 (8th Cir. 1985); Madyun v. Franzen, 704 F.2d 954, 959-60 (7th Cir.), cert. denied, 31a District Court Memorandum Decision 464 U.S. 996 (1983); St. Claire v. Cuyler, 634 F.2d 109, 114-15 (3d Cir. 1980). We find the Wali case to be controlling here. We first note that the Wali court’s analysis of Supreme Court precedent included Jones v. North Carolina Prisoners Union and Bell v. Wolfish. Moreover, we are persuaded by the Third Circuit’s conclusion in Shabazz v. O’Lone, 782 F.2d 416 (3d Cir.) (en banc), cert. granted, 107 S. Ct. 268 (1986), that the standard proposed by defendants “pro- vides inadequate protection for the rights of prisoners freely to exercise their religion.” Jd. at 417; see also id. at 420. In Shabazz, Muslim prisoners challenged prison regulations that prevented them from attending weekly religious services as violative of their first amendment rights. The Shabazz court found St. Claire’s “exagger- ated response” standard, 634 F.2d at 114-15, which de- fendants urge us to adopt, to be flawed because it failed to “require any inquiry into the feasibility of accommo- dating prisoners’ religious practices.” Shabazz, 782 F.2d at 420. Rather, “a ‘mutual accommodation’ between the important institutional objective of security and the con- Stitutionally protected rights of prisoners” is required un- der Bell v. Wolfish, 441 U.S. at 546, and Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Shabazz, 782 F.2d at 419. To replace the St. Claire standard, the Third Circuit adopted the following analysis for cases involving free exercise rights: [T]he state must show that the challenged regula- tions were intended to serve, and do serve, the im- portant penological goal of security, and that no reasonable method exists by which [the inmates’] re- ligious rights can be accommodated without creating bona fide security problems. 32a District Court Memorandum Decision Shabazz, 782 F.2d at 420. In the context of the case before us, the Shabazz analysis is substantially identical to the third part of the Wali standard of review. We hold that the third Wali standard governs the case before us. The first standard is inapplicable be- cause the right of prisoners to wear beards is not inher- ently inconsistent with established penological objectives. See Burgin v. Henderson, 536 F.2d 501 (2d Cir. 1976); Sostre v. Preiser, 519 F.2d 763, 764 (2d Cir. 1975); Mos- kowitz v. Wilkinson, 432 F. Supp. 947 (D. Conn. 1977); Monroe v. Bombard, 422 F. Supp. 211 (S.D.N.Y. 1976). The second standard does not apply because unrestricted beard growth is not presumptively dangerous® and be- cause requiring Fromer to cut his facial hair would work a total deprivation of his religious belief that the beard must not be disturbed. The third Wali standard, furthermore, is consistent with prior Second Circuit cases concerning beards in prison. In Burgin, Sunni Muslim prisoners asserted their first amendment right to grow beards. While remanding for factual development, the Second Circuit set forth the following standard: “But even if the institutional purpose [in prohibiting beards] is legitimate and substantial, ‘that purpose cannot be pursued by means that broadly stifle fun- damental personal liberties when the end can be more narrowly achieved.’ Shelton v. Tucker, [364 U.S. 479, 488 (1960)], Procunier v. Martinez, [416 U.S. 396, 413 (1974)]” Burgin, 536 F.2d at 504 (quoting Sostre, 519 F.2d at 764 (inmate challenge to “no beard” prison rule)). The “least restrictive alternative” analysis has also been em- ployed by two district courts to strike down the no-beard 5 See our discussion of the government’s security concerns below. 33a District Court Memorandum Decision rule as applied to prisoners who declined to remove their beards on the basis of sincerely held religious beliefs. Moskowitz, 432 F. Supp. at 951 (Orthodox Jew in federal prison); Monroe, 422 F. Supp. at 218 (Sunni Muslims in state prison); see also People v. Lewis, No. 356, slip op. (N.Y. Nov. 11, 1986) (portion of Directive #4914 requir- ing Rastafarian inmate to cut dreadlocks for initial photo- graph held unconstitutional under either the “least intrusive means” or “exaggerated response” test, be- cause facial features can be fully exposed merely by pull- ing hair back), affg, 115 A.D.2d 599, 496 N.Y.S.2d 258 (2d Dep’t 1985); Phillips v. Coughlin, 586 F. Supp. 1281, 1285 (S.D.N.Y. 1984) (Directive #4914’s requirement that all inmates submit to initial shave upheld as “least intrusive method available” to satisfy state’s interest in photographing facial features); Gallahan v. Hollyfield, 670 F.2d 1345, 1346 (4th Cir. 1982) (least restrictive alterna- tive standard used to enjoin cutting of Cherokee Indian’s hair); Wright v. Raines, 457 F. Supp. 1082, 1088 (D. Kan. 1978) (“no beard” regulation struck down as applied to Sikh inmate because regulation does not represent least restrictive method of obtaining goal of security.) Accordingly, defendants must show that application of the one-inch beard restriction is “necessary to further an important governmental interest.” Wali, 754 F.2d at 1033. In addition, they must establish “that the limita- tions on freedoms occasioned by the restriction are no greater than necessary to effectuate the governmental ob- jective involved.” /d. 34a District Court Memorandum Decision GOVERNMENTAL INTERESTS Philip J. Coombe,* Deputy Commissioner for Facil- ity Operations of DOCS, testifies that the governmental interests in identification of inmates, control of contra- band, fairness, safety, and hygiene all necessitate the one inch limit on beards. While each of these interests is unquestionably important in the prison setting, we con- clude that defendants have not established that the beard restriction is no greater than necessary to effectuate the governmental objectives involved. Identification The governmental interest in effective identification of inmates to insure prison security and to facilitate ap- prehension of escaped inmates is important and substan- tial. Moskowitz, 432 F. Supp. at 950. Defendants’ evidence establishes that allowing inmates to wear beards poses heightened difficulties in identification. Coombe testified that two inmates escaped from the Green Haven visiting room after shaving their beards and donning women’s clothing in the bathroom. Tr. 347, 376. We are not persuaded, however, that beards longer than one inch pose a significantly greater risk than beards of one inch or less. Coombe testifies that while he would prefer to require inmates to be clean-shaven and to wear their hair short, the prison system can toler- ate beards up to one inch because facial structure is still visible when the beard is short. Tr. 351. He argued that a long, untrimmed beard would provide an inmate with a set of disguises, in that the inmate could roll, braid, or otherwise manipulate his beard. Tr. 353. The fact that § Mr. Coombe is responsible for the security of the fifty correctional facilities operated by DOCS and reports directly to Commissioner Coughlin. He has served as superintendent of the Otisville and Eastern Correctional Facilities. Tr. 337-38, 341. 35a District Court Memorandum Decision an inmate has innumerable opportunities for instant dis- guise increases his willingness to escape and makes an escape attempt more likely to succeed. Tr. 381-82. On this point, we are more inclined to accept the testimony of plaintiff’s prison expert, Daniel J. Pochoda,’ who disagreed with Coombe’s assertion that a one-inch beard allows significantly better observation of an in- mate’s facial structure than does a longer beard. In Pochoda’s view, “the change in appearance is brought about by a beard of one inch versus no beard at all, as opposed to a difference of one inch and two or three or four or longer.” Tr. 428. Under Directive #4914, in- mates currently have the option of keeping their hair in any length and any style and of keeping their mustaches and beards in any style not exceeding one inch in length. Since inmates may drastically change their appearances in numerous ways while still complying with Directive #4914, we are not persuaded that the additional disguise options of a braided or rolled beard would lead to an increase in escape attempts or in disciplinary problems within the prison.® ? Pochoda has worked as a staff attorney with the Prisoners’ Rights Project of the New York Legal Aid Society, executive director of the New York State Commission of Corrections, director of the Minimum Standards Unit of the New York City Board of Correc- tions, chair of a corrections task force of the New York State Divi- sion of Criminal Justice Services, and president of the Correc- tional Association of New York. Tr. 398-408. We reject defendants’ assertion that Pochoda’s expert testimony must be disregarded because his “political convictions are very radical.” Defendants’ Post-Trial Memorandum at 30. We also find defendants’ contention that Pochoda “assisted [Attica] in- mates in efforts to leverage their demands through illegal strikes” in 1983 to be unsupported. /d. at 84. 8 Defendants’ contention that long beards would pose a significant security threat is also undermined by the fact that the escape rate (footnote continued on next page) 36a District Court Memorandum Decision To the extent that the one-inch beard restriction does promote identification of inmates, that objective can be obtained by the less restrictive means of rephotographing the inmate whenever the growth of his beard significantly changes his appearance.® Directive #4914 already re- quires a clean-shaven picture of every inmate upon entry to the prison system. In addition, Directive #4914 pro- vides that an inmate can be rephotographed at his own expense “[i]f, in the opinion of the Correction Officer or Supervisor, an inmate drastically changes his appearance by changing the length of his hair or growing or shaving a beard and/or mustache.” “While such an alternative may be administratively inconvenient or financially bur- densome, such difficulties do not suffice to excuse the state from according basic constitutional rights to in- mates.” Monroe v. Bombard, 422 F. Supp. at 217. Contraband Defendants contend that the one-inch beard rule is necessary to prevent inmates from concealing contra- band. One of defendants’ attorneys demonstrated at trial that he could secrete and securely hold a nail file in his four-inch beard. Tr. 385-86. A nail file resembles a (footnote continued from preceding page) in New York is one of the lowest in the United States, Coombe, Tr. 348, and by the experience of other prison systems that allow beards of any length. The New York City, federal, and California prison systems all do not restrict beards. Pl. Ex. 18; Combe, Tr. 513. Pochoda, who conducted research in the city correctional system for two years while drafting minimum standards for the New York City prisons, testified that the city has not encountered any problems in security, identification of inmates, safety, or hy- giene resulting from its lack of beard restrictions. Tr. 433. 9 Defendants argue that obtaining photographs of inmates wearing all the variations that could be adopted with a long beard would be impossible. However, photographs of the multiplicity of appear- ances possible with various hairstyles and facial hair not exceeding one inch are not considered necessary by DOCS. 37a District Court Memorandum Decision shank, or sharpened piece of metal, which inmates use as a weapon. Tr. 352. While we recognize the magnitude of the contraband problem facing prison authorities, we find that drugs or weapons could be hidden at least as easily in an inmate’s long hair, clothing, or body as in his beard. In fact, de- fendants’ expert conceded that he had never heard of an instance where an inmate had concealed contraband in his hair or beard. Coombe, Tr. 374-75. Furthermore, the governmental objectives of d'scouraging and detect- ing contraband in long beards may be served by the search procedures currently in effect. Inmates are searched periodically with metal detectors. In addition, during contraband searches the immate is required to run his fingers through his hair afid beard. If the correction officer suspects that something fs still concealed, he him- self can run his fingers through the inmate’s beard and hair. Coombe, Tr. 373. Therefore, less restrictive alter- natives are available to deal with the contraband prob- lem. Fairness Defendants argue that the one-inch beard require- ment is a neutral, consistent rule that can be understood easily by both staff and inmates. Aliowing exceptions to fair and uniform regulations, defendants claim, creates confusion, resentment, and opportunities for confronta- tion between inmates and guards. Defendants’ position is belied by the fact thai nu- merous DOCS directives already provide for exemptions for prisoners who have sincerely held religious beliefs. For example, “American Indians involved in scheduled and approved Indian cultural ceremonies” need not com- ply with the porti o%f Directive #4914 that requires long 38a District Court Memorandum Decision hair to be tied back in a ponytail. Directive #4202 pro- vides that dietary requirements and the restrictions on activity of an inmate’s Sabbath should be observed, and allows inmates to wear various religious items. PI. Ex. 20. Pochoda testified that prisoners do not resent ex- emptions for other prisoners based on sincere religious belief as long as the exemption is based on a rule and all prisoners have the opportunity to demonstrate their relig- ious interest. Tr. 432. To the limited extent that excep- tions do result in confusion and resentment, these problems do not justify the impairment of Fromer’s abil- ity to observe his religious beliefs by growing his beard. Safety and Hygiene Defendants assert that an untrimmed beard can be- come caught in machinery and can pose a hygiene prob- lem if the inmate ig assigned to food service or if the beard becomes infested with vermin. Once again, we do not see a distinction between the situation presented by long hair and the situation presented by long beards. Inmates with long beards can be required to wear beard guards around machinery and food preparation areas or else be assigned to jobs not involving machines or foods. If vermin is detected in a beard, the inmate can be re- quired to use a special shampoo to combat the problem or to cut his beard as a last resort. CONCLUSION Plaintiff has established that his refusal to trim his beard to comply with Directive #4914 is based on beliefs that are sincerely held and religious in nature. We con- clude that defendants’ interests in identification of in- mates, control of contraband, fairness, safety, and hygiene can all be served with alternatives less restrictive than requiring Fromer to trim his beard. Thus, defen- 39a District Court Memorandum Decision dants have failed to show that the limitation on Fromer’s religious freedom occasioned by the beard restriction are no greater than necessary to effectuate the governmental objectives asserted. See Wali, 754 F.2d at 1033. Accordingly, the portion of DOCS Directive #4914 requiring inmates to trim their beards to one inch in length is hereby declared unconstitutional as applied to Fromer. Defendants are hereby enjoined from trimming, shaving, or in any other way shortening Fromer’s beard; from ordering Fromer to trim, shave, or otherwise shorten his beard; and from punishing Fromer for refus- ing to trim, shave, or otherwise shorten his beard. Fur- thermore, defendants are ordered to restore to Fromer all good time credits and any other privileges and benefits lost because of his past refusals to trim his beard. De- fendants must also expunge from Fromer’s record all ref- erences to disciplinary proceedings held because of the violation. SO ORDERED. Dated: New York, New York November 25, 1986 /s/ Charles E. Stewart United States District Judge 40a ORDER OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK CONSOLIDATING HEARING ON PRELIMINARY INJUNCTION WITH TRIAL UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK YEVGEN FROMER, \ Plaintiff, -against- HAROLD J. SMITH, WALTER KELLY, EVERETT W. JONES, THOMAS A. COUGHLIN III, and HIRSHEL JAFFEE, Defendants -/ CHARLES J. SCULLY, a Civ. 5612(CES) ORDER STEWART, District Judge: Pursuant to Fed. R. Civ. P. 65(a)(2), the hearing on plaintiff’s application for a preliminary injunction, sched- uled for July 23, 1985, is to be consolidated with a trial on the merits with respect to the Eighth and Ninth Causes of Action set forth in the Amended Complaint. As to these two causes of action, defendants’ pending motion to dismiss is denied, wi. 10ut prejudice. SO ORDERED. Dated: New York, New York July 8, 1985 /s/ Charles E. Stewart United States District Judge 4la NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES DIRECTIVE NO. 4914, AS REVISED Classification Distribution ; Date # 4914 A&B 1/5/84 Supersedes Directive # 4914 Dated 1/18/82 and Revision Notice Dated 2/2/82 Subject: INMATE GROOMING STANDARDS i. DESCRIPTION This directive establishes the basic grooming stan- dards (including criteria for beards, mustaches, and length of hair) for inmates. Il. STANDARDS Reference is made to Rule 3.20 of the Standards of Inmate Behavior: “Beards and mustaches are not to exceed one (1) inch in length.” It is especially important that inmates who are as- signed to temporary release programs present a “neat and clean” appearance. lil. REGULATIONS A. Initial Haircut and Shave at Reception Males received as new commitments shall get an initial haircut and shave for reasons of health and sanitation as well as to permit the taking of the initial identification photograph. Hair length upon completion of this initial hair- cut shall not exceed one (1) inch on any part of the head. For the purpose of the initial clean shaven identification photograph, inmates who have a beard upon reception shall be permitted the option to use an electric razor, hand clip- ‘pers, or a depilatory to remove their beard. B. 42a Department of Correctional Services Directive No. 4914 General Grooming Standards After the initial haircut and shave, general grooming standards as set forth below are ap- plicable to all inmates. iF bh Beards and Mustaches All inmates may grow a beard and/or mus- tache not to exceed one (1) inch in length. Hair a. Hair may be permitted to grow over the ears to any length desired by the inmate. The corn row style is allowed. The hair must be neatly groomed and kept clean at all times. When an inmate wears long haji, and is assigned to work near machinery or food, he will be required to wear a hair net. Inmates wearing long hair wili be re- quired to have the hair tied back in a ponytail with a barrette, rubber band, or other fastening device approved by the Superintendent. This restriction does not apply to American Indians in- volved in scheduled and approved In- dian cultural ceremonies. An inmate may be subjected to a hair search when there is reason to believe that contraband may be discovered by such a search. He may be subjected to such search at any time that a pat or strip frisk is being conducted. 43a Department of Correctional Services Directive No. 4914 C. Photographs If, in the opinion of a Correction Officer or Su- pervisor, an inmate drastically changes his ap- pearance by changing the length of his hair or growing or shaving a beard and/or mustache, he will be rephotographed for identification pur- poses. All such rephotographs will be at the expense of the inmate. 44a Department of Correctional Services Revision to Directive No. 4914 Classification _ Distribution Date # 4914 A&B 4/24/84 Revises Directive # 4914 Dated 1/5/84 Subject: INMATE GROOMING STANDARDS Please add the following NOTE to the above refer- enced directive immediately following Section II[-B-2-c on page 2. NOTE: Long hair is defined as shoulder iength or longer. If shoulder length or longer, it should be tied back. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0692%3A1. Public record. Not legal advice.