Opposition Brief — Mauro v. Arpaio

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| OFEICE OF THE CLERK |

IN THE | nner

Supreme Court of the United States

JONATHAN D. MAurRo,

Petitioner,

Vv.

JOSEPH M. ARPAIO and MARICOPA COUNTY,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

DANIEL P. STRUCK

Counsel of Record

DAviD C. LEWIS

JONES, SKELTON & HOCHULI

2901 N. Central Avenue

Suite 800

Phoenix, Arizona 85012

(602) 263-1700

Attorneys for Respondents

Arpaio and Maricopa County

WILSON-EPES PRINTING Co., INC. - (202) 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

In place of the First Amendment questions posed in the

Petition, Respondents urge consideration of the follow-

ing questions:

1. Does Petitioner lack standing to challenge the

jail policy as facially overbroad?

2. Is the Maricopa County jail policy’s prohibition

against inmate possession of “sexually explicit”

materials reasonably related to a legitimate peno-

logical interest under Turner v. Safley, 482 U.S.

78 (1987)?

(1)

Arimsiibaraie se

TABLE OF CONTENTS

QUESTIONS PRESENTED .uooooo........ccecccccecccceceseeeeeeee

BERRA OP DUT I UE MIND 655 cesesnsinperienssandntsone-csnsven guises

COUNTERSTATEMENT OF THE CASE ....................

A. The Jail Policy was Adopted in 1993 to Combat

Sexual Harassment Directed at Female Deten-

tion Officers, to Ensure the Safety of Inmates

and Officers, and to Promote the Rehabilitation

of Convicted Inmates 200.00... cece eeceeee

Oe ee ee

REASONS FOR DENYING THE WRIT... 2...

I. PETITIONER LACKS STANDING’ TO

II.

MOUNT A FACIAL OVERBREADTH CHAL-

LENGE TO THE JAIL POLICY .........................

THE WRIT SHOULD BE DENIED BECAUSE

THE EN BANC OPINION CORRECTLY

ANALYZES AND APPLIES THE TURNER

REASONABLENESS TEST ...00000.00.0.......----0000e0-

ION fi rcis vinicsin Lonccnsspsscottantavarososcetestenssasentsacicesectes

(iii)

TABLE OF AUTHORITIES

CASES Page

Amatel v. Reno, 156 F.3d 192 (D.C. Cir. 1998),

cert. denied, 119 S. Ct. 2392 (1999) ...........0.. 7

Broadrick v. Oklahoma, 413 U.S. 601 (1978)........ 3,4

Kikumura v. Turner, 28 F.3d 593 (7th Cir. 1994),

cert denied, 514 U.S. 1005 (1995) -..........0............. 8

Lewis v. Casey, 116 S. Ct. 2174 (1996) ................... 5

Members of the City Council of the City of Los

Angeles v. Taxpayers for Vincent, 465 U.S. 789

CRON nc sistiaiis adeeb nieed 4

New York v. Ferber, 458 U.S. 747 (1982) ............. 3

Robinson v. Jacksonville Ship Yards, Inc., 760 F.

Supp. 1486 (M.D. Fla. 1991) ......2.....2........cccccceees 8

Salaam v. Lockhart, 905 F.2d 1168 (8th Cir. 1990),

cert. denied, 498 U.S. 1026 (1991) .....0.000...2. 8

Sanchez v. City of Miami Beach, 720 F. Supp. 974

CO i: RI iii ca tac cititees a cedstiniadialiaia ieee 8

Thornburgh v. Abboit, 490 U.S. 401 (1989) .......... passim .

Turner v. Safley, 482 U.S. 78 (1987) ......................- passim

Waterman v. Farmer, 183 F.3d 208 (8rd Cir.

OOO) sos ee ae a 3 5

Whitney v. Brown, 882 F.2d 1068 (6th Cir. 1989). : 8

Young v. American Mini Theaters, Inc., 427 US.

OO CID IOD io ovsicskscicsn tens a 4-5

OTHER AUTHORITIES

EEOC Compliance Manual § 614, 7 3114(C) (1)

i BTS CEE ivcccicscccicescccieae 8

In THE

Supreme Court of the United States

No. 99-1015

JONATHAN D. MAuRO,

. Petitioner,

JosEPH M. ARPAIO and MARICOPA CouNTY,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

The Respondents Joseph M. Arpaio and Maricopa

County respectfully request that this Court deny the Peti-

tion for Writ of Certiorari, seeking review of the Ninth

Circuit Court of Appeals’ en banc opinion filed August

17, 1999.

COUNTERSTATEMENT OF THE CASE

A. The Jail Policy Was Adopted in 1993 to Combat Sexual

Harassment Directed at Female Detention Officers, to

Ensure the Safety of Inmates and Officers, and to Pro-

mote the Rehabilitation of Convicted Inmates.

Respondents agree with and incorporate by reference

the facts outlined in the Ninth Circuit’s en banc opinion.

(Pet. App. 2a-3a). These facts emphasize: (1) the rea-

sons underlying adoption of the jail policy in 1993; (2)

the language of the policy itself; (3) the undisputed fact

that adoption of the policy has resulted in a “sharp de-

crease in the number of problems encountered;” and (4)

Petitioner’s sole dismay at the policy because of the denial

of his subscription to Playboy while he was incarcerated

in the Maricopa County jail system.

B. The Petition’s Characterization of the Decisions Below.

Dissatisfied with the District Court’s summary judg-

ment ruling and the Ninth Circuit’s ultimate en banc opin-

ion, the Petition distorts those rulings by selectively quot-

ing from them while relying heavily on the dissenting

opinions and the initial three-judge panel decision. (Pet.

at 6-11). While Petitioner’s primary motive in doing so

is to emphasize the breadth of the policy banning “sexu-

ally explicit” materials from the jail, the Petition over-

looks key findings and conclusions made by judges who

have reviewed the jail policy and rejected Petitioner’s con-

stitutional challenge to it.

The greatest fallacy in the Petition is its continued

fascination with the theory that the jail policy is unconsti-

tutionally overbroad because it may (theoretically) ex-

clude artistic or scientific publications. The Petition

repeatedly stresses the scope of the policy banning all

“sexually explict” materials which depict “full frontal

nudity,” yet never attempts to grapple with footnote 4 of

the en banc opinion. This footnote emphasizes that prison

regulations do not need to pass the “least restrictive al-

ternative test” to withstand constitutional scrutiny. So

long as the regulation withstands the Turner reasonable-

ness test, it will be deemed constitutional regardless of

any overbreadth concerns. (Pet. App. 8a, n.4).?

1 The Petition also fails to note a key aspect of the evolution of

appellate review in this case. After the Ninth Circuit’s three-judge

The Petition also overlooks specific findings of waiver

and evidentiary problems in the case. Specifically, the Peti-

tion ignores the following:

* The district court’s finding that “Mauro has been

unable to document a single instance in which a

prisoner’s request for a copy of National Geo-

graphic, or any other ‘scientific’ publication, has

been refused because of content” (Pet. App. 9a,

n.4);

* The conclusion of the en banc court that Peti-

tioner had failed to raise in his briefs the issue of

whether the policy was enacted to punish pre-trial

detainees (Pet. App. 6a, n.2);

* The conclusion of the en banc court that Peti-

tioner had raised issues on appeal (relating to

whether reasonable alternatives existed to address

the jail officials’ concerns) that had not been

raised in the district court (Pet. App. 13a, n.6);

* Judge Kleinfeld’s dissent acknowledging that po-

tential hearsay problems existed concerning quo-

tations attributed to Respondent Arpaio in a mag-

azine article (Pet. App. 27a-28a).?

panel had found the jail policy substanially overbroad in prohibit-

ing inmate possession of scientific and artistic publications such as

National Geographic, Respondents filed a petition for rehearing and

suggestion for rehearing en banc, pointing out the court’s error in

concluding that “Mauro need not prove substantial overbreadth in

a pure speech case.” See, e.g., New York v. Ferber, 458 U.S. 747

(1982) (substantial overbreadth requirement applies to “pure

speech” cases); and Broadrick v. Oklahoma, 413 U.S. 601 (1973).

After receipt of the petition for rehearing, the three-judge panel

took the unusual step of withdrawing this portion of its opinion

on September 1, 1998 before even allowing Petitioner Mauro the

opportunity to respond. This confession of error by the three-judge

panel was followed by the en banc opinion’s rejection of Petitioner’s

overbreadth argument.

2 Beyond hearsay problems. associated with this 1995 article, Peti-

tioner has never confronted the reality that the statements at-

ILABLE COPY

These oversights by Petitioner demonstrate that the

record in this case is anything but clear. As found by the

district court and the Ninth Circuit, Petitioner has not

properly preserved issues in the record. Worse yet, his

Petition wholly fails to confront the preliminary issue of

whether traditional overbreadth analysis is encompassed

within the flexible Turner analysis.

REASONS FOR DENYING THE WRIT

I. PETITIONER LACKS STANDING TO MOUNT A

FACIAL OVERBREADTH CHALLENGE TO THE

JAIL POLICY

What Petitioner labels as the “unprecedented breadth”

of the jail policy is not properly before this Court. There

are two independent reasons why Petitioner lacks stand-

ing to challenge the facial breadth of the jail policy.

First, the Petition fails to even acknowledge the exist-

ence of the substantial overbreadth doctrine in traditional

First Amendment cases. To enable a court to entertain

a facial overbreadth challenge, the First Amendment liti-

gant must demonstrate that the risk of an overbroad ap-

plication of the statute or policy is both real and substan-

tial. Broaderick, 413 U.S. at 615; and Members of the

City Council of the City of Los Angeles v. Taxpayers for

Vincent, 466 U.S. 789, 801 (1984) (for a challenged

regulation to be deemed substantially overbroad, “there

must be a realistic danger that the statute itself will sig-

nificantly compromise recognized First Amendment pro-

tections of parties not before the Court... .”). See also

Young v. American Mini Theaters, Inc., 427 U.S. 50, 61

tributed to Respondent Arpaio were nearly two years after the

1993 adoption of the policy. As conceded in the Petition, the rea-

sons behind adoption of the policy were set forth in a contempo-

raneous memorandum prepared by the sheriff’s office in August

of 1993. (Pet. at 3)

(1976) (“Since there is surely a less vital interest in the

uninhibited exhibition of material that is on the border-

line between pornography and artistic expression than in

the free dissemination of ideas of social and political

Significance . . . we think this is an inappropriate case in

which to adjudicate the hypothetical claims of persons

not before the Court.”)

To the extent it applies, this First Amendment doc-

trine compels the conclusion that an inmate who is denied

a subscription to Playboy magazine (and fails to offer

any evidence that other inmates have been denied artistic

or scientific publications under the policy) has standing

to challenge only the policy’s application with respect to

the denied Playboy subscription.

Second, the overbreadth doctrine is not even applicable

in jail/prison cases under the Turner analysis. The theo-

retical exclusion of artistic or scientific journals does not

independently render a jail policy unconstitutional, so

long as the policy satisfies the Turner reasonableness test.

Thornburg v. Abbott, 490 U.S 401, 414 (1989) (“we

prefer the express flexibility of the Turner reasonableness

standard.”); and Lewis v. Casey, 116 S. Ct. 2174, 2179-84

(1996) (prisoner seeking to enjoin the operation of a

prison policy must demonstrate its unconstitutional appli-

cation to him rather than to third-parties not before the

court). See also Waterman v. Farmer, 183 F.3d 208,

212-13 (3rd Cir. 1999) (“the substantial overlap be-

tween the Safley test and the doctrines of vagueness and

overbreadth suggests that the Supreme Court did not in-

tend for those doctrines to apply with independent force

in the prison-litigation context.”)

Thus, to the extent the Petition challenges the scope

of the jail policy and its hypothetical exclusion of artistic

and scientific publications, Petitioner lacks standing to as-

sert such an overbreadth challenge. Because the predom-

inant concern of the Petition is the breadth of the jail

policy rather than its specific application to the denied

Playboy subscription of Petitioner, certiorari should be

denied on this basis alone.

II. THE WRIT SHOULD BE DENIED BECAUSE THE

EN BANC OPINION CORRECTLY ANALYZES AND

APPLIES THE TURNER REASONABLENESS TEST

The Petition seeks to manufacture a conflict that does

not exist. Citing to the Turner and Thornburgh decisions

of this Court, the Petition contends that the en banc

Opinion’s “interpretation of the reasonableness test con-

flicts with Turner.” (Pet. at 24). It does not. The

Turner reasonableness test is, as its name suggests, case-

specific. The Ninth Circuit’s en banc opinion did not

proclaim any new principles of law or seek to undermine

Turner in any way. Instead, the opinion simply applied

the Turner reasonableness analysis to a jail policy based

on the record before the court. The district court found

the jail policy reasonably related to Maricopa County’s

legitimate penological interests and the Ninth Circuit af-

firmed that ruling on appeal.

Petitioner’s chief complaint appears to be that “none

of the safeguards that comforted this Court in Thorn-

burgh is present here.” (Pet. at 19). Petitioner empha-

sizes that the Maricopa policy does not allow any excep-

tions similar to the Bureau of Prisons’ policy before this

Court in Thornburgh. Petitioner’s reading of Thornburgh

is that prison authorities must, at a minimum, either “pro-

vide individualized consideration of requested materials

so as not needlessly to exclude benign materials that are

otherwise protected by the First Amendment, or narrow

the category of restricted materials to achieve the same

results.” (Pet. at 20). Thornburgh does not establish the

outer limits of what prison authorities may do in reg-

ulating the First Amendment rights of inmates in their

custody.

First, the Bureau’s policy challenged in Thornburgh

was brought in the context of a class action in which 46

publications had been banned by operation of the policy.

Petitioner Mauro, by contrast, stands alone (so far as the

record shows) in his desire to obtain a Playboy subscrip-

tion and failed to present any evidence that inmates have

ever been denied artistic and scientific publications.

Second, while the safeguards alluded to by Petitioner

in the Thornburgh case may have “comforted” this Court

in reaching its conclusion, there is nothing in the Thorn-

burgh opinion to suggest that such safeguards are con-

stitutionally compelled. Indeed, the same Federal Bureau

of Prisons whose regulations withstood scrutiny in the

1989 Thornburgh decision changed its policies in 1996,

making them more restrictive by banning certain “sex-

ually explicit” materials. This more restrictive policy of

the Bureau was recently upheld by a federal appeals

court in Amatel v. Reno, 156 F.3d 192 (D.C. Cir. 1998),

cert. denied, 119 S. Ct. 2392 (1999).

Unlike the prison authorities in Thornburgh, the record

here establishes that jail officials were facing (among

other things) a sexual harassment problem in 1993 that

had become increasingly difficult to avoid without the

adoption of measures to curb the flow of pornography to

inmates. Female detention officers on their work shifts had

been sexually harassed by male inmates with the inmates

using the sexually explicit pictorials to fuel their fantasies.

Adoption of the policy by state jail authorities was pre-

cisely the type of “innovative solution[] to the intractable

problem[] of prison administration” for which Article III

deference is required. Turner, 482 U.S. at 89. Maricopa

jail officials were not required to adopt the “least restric-

tive alternative” as the only acceptable method for solving

the problem at hand.*

The Turner-Thornburgh test is case-specific, involving

questions of whether the particular prison or jail policy is

reasonably related to legitimate penological interests. Fo--

cusing on the rights of Petitioner, the Ninth Circuit's en |

banc opinion correctly analyzed the Turner issue and up-

held the policy as reasonably related to Maricopa County’s

legitimate interests. The Ninth Circuit's opinion faith-

fully adheres to this Court’s Turner-Thornburgh test and

does not conflict with any other circuit opinions.

The Petition, however, contends that the Ninth Cir-

cuit is now in conflict with decisions from the Sixth, Sev-

enth, and Eighth Circuits. The only “conflict” identified by

the Petition is that the en banc court shirked its “obliga-

tion to weigh all relevant factors... .” (Pet. at 26). The

circuit opinions cited in the Petition to support this asserted

conflict do not even involve sexually explicit materials but

rather prison regulations infringing on inmate religious

freedoms or foreign language rights. See generally Salaam

v. Lockhart, 905 F.2d 1168 (8th Cir. 1990) cert. denied,

498 U.S. 1026 (1991); Kikumura v. Turner, 28 F.3d 593

(7th Cir. 1994), cert. denied, 514 U.S. 1005 (1995); and

Whitney v. Brown, 882 F.2d 1068 (6th Cir. 1989).

Simply because the jail policy here passed the Turner test

3 As emphasized throughout the proceedings below, courts have

found the existence of a hostile work environment where pictures

of nude women and sexual slurs abound. See EEOC Compliance

Manual § 614, 7 3114(C)(1) at 3274 (1990). See also Robinson v.

Jacksonville Ship Yards, Inc., 760 F. Supp. 1486 (M.D. Florida

1991); Sanchez v. City of Miami Beach, 720 F. Supp. 974, 977

(S.D. Florida 1989). Moreover, 29 C.F.R. § 1604.11(e) provides

that an “employer may .. . be responsible for the acts of non-

employees, with respect to sexual harassment of employees in the

workplace, where the employer (or its agents or supervisory em-

ployees) knows or should have known of the conduct and fails to

take immediate and appropriate action.”

TNT SET eT a WORN ene aT TE

while other (completely unrelated) prison policies have

flunked the Turner test does nothing to present a conflict

in circuit authority. The Turner test is preferred for its

flexibility; it is neither designed for nor capable of pro-

viding the type of mechanical application demanded by

Petitioner.

CONCLUSION

For the reasons set forth above, the Petition for a Writ

of Certiorari should be denied.

Respectfully submitted,