Reply Brief — Mickle v. Moore

Supreme Court, Ud

FILED

AUS 27 1999

No. 99-131 rr pi QB HE OLERK

IN THE

SUPREME COURT OF THE UNITED STATES

ALEXANDER MICKLE, et al.,

Petitioners,

MICHAEL MOORE, et al.,

Respondents.

“IN RE: LONG TERM ADMINISTRATIVE SEGREGATION

OF INMATES DESIGNATED AS FIVE PERCENTERS”

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

REPLY TO BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Robert E. Toone (Counsel of Record) Gregory S. Forman

Katharine A. Huffman 171 Church Street

Stephen B. Bright Suite 160

Southern Center for Human Rights Charleston, SC 29401

83 Poplar Street, N.W. (803) 720-3749

Atlanta, GA 30303-2122

(404) 688-1202

TABLE OF CONTENTS

TAREE OF CONTENTS 20 cc ccccccccccceccccencs:

Caperton v. Beatrice Pocahontas Coal Co., 585 F.2d

oS errr er rrrrre

Cheech of l ukumni Boboln Ave Jac y. Ci

Hialeah, 508 U.S. 520 (1993) .............

Cooper v. Pate, 378 U.S. 546 (1964) ..............

Cooper v, Pate, 382 F.2d 518 (7th Cir. 1967)........

Hadi v. Horn, 830 F.2d 779 (7th Cir. 1987) .........

McCarthy v. Bronson. 500 U.S. 136(1991).........

O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987)...

Shopco Distrib. Co., Inc. v. Commanding Gen., 885 F.2d

ere er

Sutton v. Stewart, 22 F. Supp.2d 1097 (D. Ariz. 1998),

affd, F.3d___,No. 98-16680, 1999 WL

435837 (9th Cir. Jun. 16, 1999)............

Turner v. Safley. 482 U.S. 78 (1987) ..............

CONSTITUTIONAL PROVISION

Ce ee owed eetenenesees

li

REPLY TO BRIEF IN OPPOSITION

Throughout its brief, the SCDC denies that petitioners have

been placed in long-term segregation (or “reclassified to a higher

security level,” Resp. Br. at 8) because of their religious beliefs.

Rather, it argues, petitioners are locked down because they are

affiliated with the Five Percent Nation of Gods and Earths (or “the

Five Percenter Group,” Resp. Br. at 9). The SCDC “does not re-

quire any inmate to renounce any religious beliefs”: an inmate

retains the “prerogative” not to renounce his affiliation with the

Five Percent Nation, but if he exercises that prerogative he must

remain in segregation. Resp. Br. at 9.

The SCDC can make these inconsistent assertions only

because it denies that the Five Percent Nation is a religion. It has

maintained this position throughout this litigation. See App. at A-7,

A-35. This position, however, is not tenable given the procedural

posture of this case. Petitioners presented extensive evidence in the

district court -- an expert declaration, religious texts, declarations

from individuals describing their spiritual beliefs -- showing that

the Five Percent Nation is a religion entitled to protection under the

First Amendment. In analyzing the SCDC’s motion for summary

judgment, both the Fourth Circuit and district court below assumed

this to be true. App. at A-7, A-20-21.

For most petitioners, their religious affiliation is the only

explanation for their placement in segregation. The SCDC repeat-

edly refers to “violence, disruption and other antisocial behavior”;

under its segregation policy, it writes, inmates “are prohibited from

acting in a violent or dangerous manner.” Resp. Br. at 8-9. But it is

undisputed that most of the hundreds of inmates whom the SCDC

has segregated since June 1995 pursuant to its policy have had no

involvement in gang activity or other institutional violence or mis-

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conduct. For example, lead plaintiff Alexander Mickle has been in

segregation now for more than four years. Prior to his placement

there, he was classified at a very low security level and had no

record of disciplinary violations. The SCDC has not disputed peti-

tioners’ evidence showing that the institutional behavior of Mickle

and such other petitioners as Shaleek Azeem, Walter Jenkins, and

Ameed Stevenson has been excellent. There is simply no basis in

the record for describing them as “violent and dangerous” prison-

ers.

The SCDC navigates this problem by arguing (Resp. Br. at

8-9) that it decided to segregate petitioners not because of their own

conduct, but rather because of “behavior by members of the Five

Percenter group.” Petitioners submit that it is repugnant to the First

Amendment and the principle of due process for government to

punish innocent individuals based upon its impression of their

religious group in general. Furthermore, the courts below refused

to acknowledge the extent to which the SCDC’s view of the Five

Percent Nation as a “violent and dangerous” group is factually

disputed. The SCDC maintains that the Five Percent Nation is a

gang; petitioners presented evidence below that it is not. The

SCDC maintains that the Five Percent Nation is racist; petitioners

presented evidence below that it is not. The SCDC maintains that

the Five Percent Nation encourages violent behavior; petitioners

presented evidence below that Five Percent Nation discourages vio-

lence and other antisocial conduct, and that in fact the Five Percen-

ter beliefs have influenced many adherents to behave peacefully in

society and improve relationships with others.

This is the evidence that the Fourth Circuit expressly re-

fused to consider, stating that “to draw these inferences in the in-

mates’ favor would turn Turner’s command of judicial deference

_on its head.” App. at A-10. The SCDC is wrong to assert (Resp.

Br. at 11-12) that the evidence the Fourth Circuit disregarded was

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“simply not material” to this case. Evidence about petitioners’

religious beliefs and the nature of the Five Percent Nation generally

is critical to any objective evaluation of the SCDC’s policy under

the First Amendment. No amount of “deference” or aversion to

“second-guessing” (Resp. Br. at 11) can excuse the fundamental

unfairness that has occurred in this litigation thus far: petitioners

have been treated harshly for years based on the SCDC’s assertions

about the dangerousness of their religious group, and yet their evi-

dence disproving these assertions has not been credited. A trial is

necessary to resolve these factual disputes conclusively.

Respondents argue (Resp. Br. at 7) that petitioners are

“procedurally barred” from seeking heightened scrutiny of the

SCDC’s segregation policy under the First Amendment. It is re-

spondents, however, who are barred: they did not raise this argu-

ment in their brief to the Fourth Circuit below, a failure which

amounts to waiver. See, e.g., Shopco Distrib. Co., Inc. v,

Commanding Gen., 885 F.2d 167, 170 n.3 (4th Cir. 1989); Caper-

ton v. Beatrice Pocahontas Coal Co., 585 F.2d 683, 692 (4th Cir.

1978). The Fourth Circuit considered petitioners’ arguments analo-

gizing this case to Church of the Lukumi Babalu Aye, Inc. v. City

of Hialeah, 508 U.S. 520 (1993), and others involving government

policies targeting particular religious beliefs, but rejected the anal-

ogy on its merits: “restrictions that would clearly violate the Con-

stitution outside the prison setting may be rationally based within

that setting.” App. at A-7n.4. This case deserves review because

even in the prison setting, “the principle that government may not

enact laws that suppress religious belief or practice” may not be

abrogated. See Church of Lukumi, 508 U.S. at 523.

Respondents suggest (Resp. Br. at 8 & n.2) that the ruling

in Cooper v. Pate, 378 U.S. 546 (1964), is no longer good law after

Tumer v, Safley, 482 U.S. 78 (1987), and O’Lone v, Estate of

Shabazz, 482 U.S. 342 (1987). This Court, however, has continued

3

to cite Cooper with approval. See McCarthy v. Bronson, 500 U.S.

136, 141-42 (1991). The Seventh Circuit has stated that “O’Lone

and Turner have served to clarify and amplify, rather than to depart

from, the standard applied in [Cooper].” Hadi v. Horn, 830 F.2d

779, 784 n.6 (7th Cir. 1987); accord Sutton v. Stewart, 22 F.

Supp.2d 1097, 1106 n.14 (D. Ariz. 1998), aff'd, = ~F.3d__, No.

98-16680, 1999 WL 435837 (9th Cir. Jun. 16, 1999). Thus, the

principle that courts must “closely scrutinize the reasonableness of

any restriction imposed on a prisoner’s activity in the exercise of

his religion, and especially so where the adherents of one faith are

more heavily restricted than adherents of another,” Cooper, 382

F.2d at 521, is reflected in Turner’s requirement that “prison regu-

lations restricting inmates’ First Amendment rights operate[] in a

neutral fashion, without regard to the content of the expression,”

482 US. at 90.

Respondents fail to explain (Resp. Br. at 7-8) how the hold-

ing in Cooper is not “directly on point” here. Both cases involved

inmates who had been placed in segregation because of their reli-

gion. In Cooper, the inmate, a member of the Nation of Islam, had

alleged this fact in a complaint. This Court reversed the lower

courts’ dismissal of the inmate’s claim, stating that the First

Amendment does not allow prison officials to discriminate against

an inmate “solely because of his religious beliefs.” 378 U.S. at

546. On remand, the Seventh Circuit held unconstitutional many of

the challenged prison policies, but upheld the placement of the

inmate in segregation because it was “for normal disciplinary rea-

sons and not because of any religious beliefs he may hold.” Cooper

v. Pate, 382 F.2d 518, 523 (7th Cir. 1967).

Petitioners in this case do not seek an end to segregated

confinement altogether, and certainly not as a means of discipline

or preventing future disturbances. They do not suggest that the

First Amendment prevents “prison administrators from being proac-

4

tive rather than reactive.” See Resp. Br. at9. But proactive prison

management does not require the suppression of an entire religious

group, especially where the evidence is disputed as to whether its

members present any real threat to prison security at all. Under the

SCDC’s policy, petitioners have spent years in extremely restrictive

segregation, not because of any evidence showing that they misbe-

haved in the past or are likely to do so in the future, but because of

the religious beliefs they hold. This government policy is inimical

to the First Amendment and warrants review by this Court.

CONCLUSION

For the reasons set forth above and in their petition, this

Court should grant petitioners a writ of certiorari.

Respectfully submitted,

Robert E. Toone (Counsel of Record)

Katharine A. Huffman

Stephen B. Bright

Southern Center for Human Rights

83 Poplar Street, N.W.

Atlanta, GA 30303-2122

(404) 688-1202

Gregory S. Forman

171 Church Street, Suite 160

Charleston, SC 2940]

(803) 720-3749

Attorneys for Petitioners

DATED: August 26, 1999

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