Reply Brief — Mauro v. Arpaio

Supreme Court, U.S,

Soe Ss 2S ae

(2

‘) FEB 22 2000

No. 99-1015 Sy

IN THE

Supreme Court of the United States

JONATHAN D. MAURO,

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

REPLY IN SUPPORT OF THE PETITION

FOR A WRIT OF CERTIORARI

Of Counsel: THOMAS G. HENTOFF*

WILLIAMS & CONNOLLY LLP

NICHOLAS S. HENTOFF 725 12th Street, N.W.

6601B Georgetown Pike Washington, D.C. 20005

McLean, Virginia 22101 (202) 434-5000

(703) 790-3370

* Counsel of Record Attorneys for Petitioner

PRESS OF BYRON S. ADAMS # WASHINGTON, D.C. + 1-800-347-8208

TABLE OF AUTHORITIES

Cases Page

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

cert. denied, 119 S. Ct. 2392 (1999) ....00.. oe... 3,6

Bell v. Wolfish, 441 U.S. 520 (1979) ....... ccc eee eee 7

Board of Trustees v. Fox, 492 U.S. 469 (1989) ........... 5

Frost v. Symington, 197 F.3d 348

RS MII idl erga crc ics vane kes asenuchobadane 6,7

Lewis v. Casey, 518 U.S. 343 (1996) ..............cccceeees 5

Los Angles Police Dep’t v. United Reporting

Publishing Corp., 120 S. Ct. 483 (1999) .........0.0.... 5

Thornburgh v. Abbott, 490 U.S. 401

NS aM aiten nee aea uu scik ion uwkas eda cusuccacecan 2, passim

Turner v. Safley, 482 U.S. 78

SME ass cba wad teinlvehsaKcdinsturnchesaventsecacasaas 2, passim

Waterman v. Farmer, 183 F.3d 208 (3d Cir. 1999) ...... 4

Young v. American Mini Theatres, Inc..,

I RI es i re eet 6

Constitutional Provisions

Rtas I I ad cciscvaseiscedsdcnacavedss 2, passim

Ss I I oo a al ay ste 2

Miscellaneous

R. Rotunda, et al., Treatise on Constitutional

ee ee ee Io ccch kocsis chick cdoccenc vce acca: 5

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1999

JONATHAN D. MAURO,

Petitioner,

We

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

REPLY BRIEF IN SUPPORT OF THE PETITION

FOR A WRIT OF CERTIORARI

Respondents’ Brief in Opposition does not attempt to

defend the indefensible. The Opposition does not dispute

that the Maricopa County Sheriff's Office (“MCSO”) pol-

icy prohibiting and punishing the possession of materials

containing depictions of nudity of any kind—invoked to

deny petitioner Jonathan D. Mauro’s request for a Playboy

subscription—is “of unprecedented breadth.” A. 20a (B.

Fletcher, J., dissenting). The Opposition does not attempt

to explain why Respondents, unlike other prison or jail ad-

ministrators around the nation, chose not to permit any ex-

ceptions, even for medical or educational depictions, to

nee eee SER tg te eke SL RS le ei

pw A A ee in eS

2

their bright-line rule.’ Nor does the Opposition dispute that

all the safeguards on which this Court relied in Thornburgh

v. Abbott, 490 U.S. 401 (1989), to uphold the facial valid-

ity of subject-matter prohibitions on incoming publications

are missing from Respondents’ policy.

And, rather than defend an en banc opinion previously

described by Respondents as “addressing important consti-

tutional questions in the jail/ prison setting,”* the Opposi-

tion proceeds instead to all but ignore those important

questions in favor of attacking straw-man arguments unre-

lated to the suitability of this case for review.

I.

The Opposition barely addresses one of the two ques-

tions presented in the certiorari petition: whether, under

Thornburgh, the First and Fourteenth Amendments can tol-

erate a jail system prohibiting the possession of expressive

materials based on subject matter with no individualized

consideration of the content of any requested material or the

circumstances in which a request is made, and no high-level

exercise of discretion in considering such a request.

The Opposition does not dispute that since and includ-

ing Turner v. Safley, 482 U.S. 78 (1987), Thornburgh

stands as the only case in which this Court has addressed

how Turner’s “reasonableness” standard should be applied

to regulations that prohibit expressive materials specifically

because of the impact the materials’ subject matter might

' Respondents erroneously describe their own policy as ban-

ning “‘full frontal nudity.”” Opp. 2. The policy, in fact, bans “frontal

nudity,” which the Deputy Chief testified includes pictures of bare-

chested males and females. See Pet. A2lan.1, A73a.

? Letter from D. Struck to Clerk, U.S. Sup. Ct. (Jan. 5, 2000)

(requesting 30-day extension of time).

iii

3

have on inmates’ conduct. Recognizing that outside the

prison context, such prohibitions would raise “grave First

Amendment concerns,” 490 U.S. at 407, the Thornburgh

Court proceeded with caution in evaluating the Bureau of

Prisons regulations before it, upholding their facial validity

“comforted by” a number of critical safeguards, id. at 416.

See id. (noting “the individualized nature of the [exclusion-

ary] determinations”); id. (observing that “no publication

may be excluded unless the warden himself makes the de-

termination” that it is detrimental to security, good order,

or discipline); id. at 416-17 (noting the requirement that the

warden’s determination be based on “the conditions pre-

vailing at the institution at the time”); id. at 417 (endorsing

the regulations’ “prohibition against establishing an ex-

| cluded list of publications”).

ee Se eae OR eA

Nor does the Opposition dispute that every one of these

safeguards is missing from the MCSO policy, which, in in-

flexibly banning depictions of nudity of any kind, requires

results that the D.C. Circuit, upholding a considerably nar-

rower ban, called “bizarre” and “all but impossible to be-

lieve.” Amatel v. Reno, 156 F.3d 192, 202 (D.C. Cir.

1998), cert. denied, 119 S. Ct. 2392 (1999).

Ain > nba La Salk Al KS OM LE A Viti ALE En nh Beitbse A

In response, the Opposition merely argues that “7horn-

burgh does not establish the outer limits of what prison

authorities may do in regulating the First Amendment rights

of inmates.” Opp. 6-7. See also id. 7 (“there is nothing in

the Thornburgh opinion to suggest that such safeguards are

constitutionally compelled”). But this argument, far from

disposing of any questions, merely raises one: If the Oppo-

sition is correct, and Thornburgh does not establish the

“outer limits” of jail or prison administrators’ power to

prohibit and punish the possession of expressive materials

| based on subject matter, then what are the outer limits, and

can the “unprecedented” and “all but impossible to believe”

policy imposed by the MCSO possibly fall within them?

WL tain aa at

SOO TING 6 EAE I COP ce NB eS AP m0 ke

A en Rh n Senki Leben

4

Review is appropriate to determine the important con-

stitutional question of what safeguards are indeed necessary

to protect inmates’ First Amendment rights to be free from

rules that unreasonably prohibit and punish based on the

subject matter of speech, an issue that the Opposition con-

cedes is at least left open by Thornburgh.

Il.

The principal straw man erected by the Opposition is

the erroneous contention that the certiorari petition some-

how seeks application of “traditional overbreadth analysis,”

Opp. 4, in place of the “reasonableness” test required by

Turner and Thornburgh. But the petition nowhere suggests

that any test other than the 7Jurner “reasonableness” stan-

dard is required. Expressly relying on this standard, the

petition argues that, “[b]y rejecting the safeguards set forth

in Turner and Thornburgh that ‘channel[] the reasonable-

ness inquiry,’ the en banc Ninth Circuit court” inappropri-

ately diminished the scrutiny applied to the actions of prison

administrators. Pet. 13 (quoting Thornburgh, 490 U.S. at

414) (emphasis added).

The petition does not argue that “traditional over-

breadth analysis” should be applied independent of Turner’s

four-prong test. But it cannot seriously be maintained that

overbreadth analysis plays no part in the Turner test. As

the Third Circuit observed in Waterman v. Farmer, 183

F.3d 208 (3d Cir. 1999), there is “substantial overlap be-

tween the [Zurner] test and the doctrine[] of . . . over-

breadth,” and in applying the 7urner test, therefore, courts

“take[] into account many of the same factors considered

under the doctrine[] of overbreadth.” Jd. at 213 & n.6.

Thus, in contending that an inmate plaintiff under

Turner “lacks standing to chailenge the facial breadth” of a

ee

i

5

jail policy, Opp. 4, 5,° the Opposition makes an argument

not even adopted by the en banc court, because it is flatly at

odds with this Court’s precedent. In both Turner and

Thornburgh, this Court entertained facial challenges to

prison regulations. See Turner, 482 U.S. at 78 (“We con-

| clude . . . that the Missouri marriage regulation is facially

invalid”); Thornburgh, 490 U.S. at 419 (“we hold that

Turner’s reasonableness standard is to be applied to the

regulations at issue in this case, and that those regulations

are facially valid under that standard”). Indeed, in Ti urner,

this Court granted relief to female inmates in large part

based on facial overbreadth grounds. The prison regulation

in that case applied to burden the rights of both female and

male inmates to marry. The Court noted, inter alia, that

since none of the purported justifications for the regulation

Supported its application to male inmates, the regulation

: “sweeps much more broadly than can be explained by peti-

tioners’ penological objectives,” 482 U.S. at 98, and was

therefore invalid on its face as to both male and female in-

mates. *

* See Board of Trustees v. Fox, 492 U.S. 469, 482-83 (1989)

(explaining that the overbreadth doctrine permits a plaintiff to challenge

a statute or rule “facially” rather than “as applied” to his own conduct);

Los Angles Police Dep’t v. United Reporting Publishing Corp., 120 S.

Ct. 483, 489 (1999) (discussing “facial overbreadth adjudication”)

(quotation and brackets omitted).

* If the Opposition, which cites a constitutional standing case,

Lewis v. Casey, 518 U.S. 343 (1996), also intends to suggest that peti-

tioner “lacks standing” in a jurisdictional sense to challenge the MCSO

policy on its face, Opp. 4, this would also be incorrect. There is no

dispute that petitioner—who was harmed when the policy was applied to

deny his request for a Playboy subscription—has suffered an “actual

injury” for standing purposes. 518 U.S. at 356. See R. Rotunda, ef

al., Treatise on Constitutional Law § 20.8, at 270 (3d ed. 1999) (cau-

. tioning against “confus[ing] Standing and first amendment issues” when

engaging in overbreadth analysis).

Seah Ada Rant a die

| |

6

No court, including the en banc court, has adopted the

rule against facial challenges that Respondents would pro-

pose, and Respondents otherwise cannot seriously dispute

that their “astonishingly broad,” A. 22a (B. Fletcher, J.,

dissenting), “unprecedented,” id. A. 20a, and “all but im-

possible to believe,” Amatel, 156 F.3d at 202, no-

exceptions ban on nudity “sweeps much more broadly” than

can be explained by any legitimate objective, and is there-

fore invalid on its face. 482 U.S. at 98.°

iil.

The Opposition’s bare assertion that “[t]he Ninth Cir-

cuit’s en banc opinion did not proclaim any new principles

of law or seek to undermine Turner in any way,” Opp. 6,

rings especially hollow in light of the conclusion reached by

the Ninth Circuit panel in Frost v. Symington, 197 F.3d 348

(9th Cir. 1999), that, quite to the contrary, “fijn very clear

and broad language, Mauro dramatically diminishes the

level of scrutiny that courts are to apply to the decisions of

prison administrators,” id. at 355. The certiorari petition

cites Frost in three places, Pet. 12, 21, 24. The Opposi-

tion’s response to these citations—silence—speaks for itself.

5 Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976),

does not provide support for Respondents’ overbreadth argument. The

Opposition quotes Young as holding that in that case it was inappropri-

ate to adjudicate the claims of persons not before the Court. See Opp.

4-5. But, through the use of ellipses, the Opposition removes the mid-

dle of the quotation, in which the Court explains that a key reason it

would not entertain a facial vagueness challenge to the ordinances at

issue was that “the limited amount of uncertainty in the ordinances is

easily susceptible of a narrowing construction,” thus not impermissibly

burdening First Amendment rights. 427 U.S. at 61. Here, by contrast,

Respondents have never urged a limiting construction on their policy,

and no court has found one possible.

7

Rather than defend the en banc court’s departure from

Turner, the Opposition pretends that the only conflict is

whether the Ninth Circuit “shirked” an obligation to weigh

all relevant factors. Opp. 8. But the en banc court did not

merely overlook or neglect to apply aspects of the Turner

test. It explicitly held, using italics to emphasize its point,

that it would not even consider whether a jail policy was an

“exaggerated response” to a perceived problem unless, as a

preliminary matter, “an inmate claimant can point to an al-

ternative.” A. 12a (emphasis in original: quotation omit-

ted). See also A. 12a-13a (“[i]t is incumbent upon the

prisoners to point to an alternative” before a court would

consider whether a policy is an exaggerated response) (em-

phasis in original; quotation omitted). It is this holding,

and the en banc court’s “clear[ly] and broad[ly]” stated de-

cision to diminish the applicable level of scrutiny, Frost,

197 F.3d at 355, that conflict with Turner and with deci-

sions of the Sixth, Seventh, and Eighth Circuits. See Pet.

22-28.°

* Respondents’ procedural arguments against granting review,

see Opp. 3-4, do not withstand even minimal scrutiny. Most notably,

after invoking the terms “waiver” and “evidentiary problems,” id. 3,

the Opposition does not even attempt to state how (or even whether)

such “problems” have any impact on the Suitability of this case for re-

view. Perhaps the starkest example is the Opposition’s heated com-

plaints about the admissibility of a magazine interview with Respondent

Arpaio, id. 3 & n.2, despite the fact that the certiorari petition does not

even mention that article. Similarly, the Opposition cites a footnote in

the en banc court’s decision to suggest that an argument has been

waived, Opp. 3, yet fails to disclose that the argument in question—that

Bell v. Wolfish, 441 U.S. 520 (1979), rather than Turner or Thorn-

burgh, should supply the legal standard—was raised by a dissenting

judge, not by petitioner, and is not advanced in the petition. See A6a

n.2 (“Judge Kleinfeld maintains that there is a genuine issue of material

fact regarding whether the jail’s policy of excluding sexually explicit

materials was imposed for the purpose of punishing pretrial detainees.

This issue was not raised by the parties . . . .”) (emphasis added).

8

CONCLUSION

For the reasons stated herein and in the petition, certio-

rari should be granted.

Of Counsel:

NICHOLAS S. HENTOFF

6601B Georgetown Pike

McLean, Virginia 22101

(703) 790-3370

February 22, 2000

Respectfully submitted,

THoMAS G. HENTOFF*

WILLIAMS & CONNOLLY LLP

725 12th Street, N.W.

Washington, D.C. 20005

(202) 434-5000

Attorneys for Petitioner

* Counsel of Record