# Reply Brief — Mauro v. Arpaio > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0572%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 2000 - **Citation:** 529 U.S. 1018 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0572%3A3. Public record. Not legal advice.