Reply Brief — Hammer v. Ashcroft

h Sunrsima Gor a, US.

F'icv t

No. 09-504

IN THE

Supreme Court of the Anited States

DAVID PAUL HAMMER,

Petitioner,

JOHN D. ASHCROFT, HARLEY G. LAPPIN,

KATHLEEN HAWK-SAWYER, and KEITH OLSON,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

REPLY BRIEF

Jerold S. Solovy Barry Sullivan

Counsel of Record Cooney & Conway Chair in

John R. Storino Advocacy and Professor of Law

Chad E. Bell LOYOLA UNIVERSITY CHICAGO

JENNER & BLOCK LLP 25 Kast Pearson Street

353 N. Clark Street Chicago, Illinois 60611

Chicago, IL 60654 (312) 915-7787

(312) 222-9350

Attorneys for Petationer

TABLE OF CONTENTS

EP eees TE PAGE re Be nk ohckidk cn aceneaece eee 1}

iy 8 EL aL By yo) SR nn Meme EMOMErEtTE Bec ce US iy Cay ono ]

I. The Divided, #n Banc Seventh Circuit’s

Decision Is Inconsistent With Prior

Decisions OF THe COU, sccicccicccaccactausncae 3

II. The Conflict Between The Decision Below

And Holdings Of Other Federal Appellate

Courts Te Sutetanitael ioiccséésivovcsseveccstentscueee 6

CAPITAN EY iciciiscccieai enim (esdeiintes maaan 9

TABLE OF AUTHORITIES

CASES

Abu-Jamal v. Price, 154 F.3d 128 (3d Cir.

cause sdcucocevacvessoss 7,8

Beard v. Banks, 548 U.S. 521 (2006)...................... 4

Kamberlin v. Quinlan, 199 F.3d 496 (D.C.

oe En Re oe aa

Overton v. Bazzetta, 5389 U.S. 126 (20038) .............. 4

Pell v. Procunier, 417 U.S. 817 (1974) ...........8, 4,5

Quinn v. Nrx, 983 F.2d 115 (8th Cir. 1993)........ 7,8

Salahuddin v. Goord, 467 F.3d 263 (2d Cir.

ccc vavusevacesneveacnvsinns 7,8

Saxbe v. Washington Post Co., 417 U.S. 843

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

Walker v. Sumner, 917 F.2d 382 (9th Cir.

I cacccevcneccaqovees 7.8

INTRODUCTION

Contrary to Respondents’ assertions (Opp. 11-18),

the en banc majority decision does not faithfully

follow this Court’s prior decisions; it directly conflicts

with several of those decisions, most notably 7urner

v. Safley, 482 U.S. 78 (1987). The decision below also

conflicts with numerous decisions from other federal

appellate courts addressing inmate challenges to

unconstitutional prison restrictions.

On an issue of fundamental First Amendment

import, the court below. substituted judicial

abdication for deference. The court did not just

provide a means to “weed out baseless claims before

trial,” as Respondents assert (Opp. 22), but

effectively put all First Amendment violations in the

prison context beyond redress.

Here, Mr. Hammer, a pro se plaintiff who was

prevented from taking any discovery, nonetheless

offered substantial evidence concerning Respondents’

real reasons for the ban, including Attorney General

Ashcroft’s own explanation, made just four days

before the adoption of THA-1480.05A:

J want to restrict a mass murderer’s access to

the public podium. ... I do not want anyone

to be able to purchase access to the podium of

America with the blood of 168 innocent

victims. ... I’m concerned about irresponsible

glamorization of a culture of violence, and that

concern has shaped our approach to these

issues profoundly.

2

he

(App. 90a, 97a). Neither this Court nor any other

federal appellate court has previously countenanced

ignoring such contemporaneous’ statements of

administrative reasons -— the hallmark of

administrative justice in a democratic society. Nor

has any prior decision held that First Amendment

rights are adequately protected whenever prison

officials —~ or a reviewing court — can “imagine” a

possible justification for their curtailment after the

fact. Indeed, such an approach is inconsistent with

Turners first factor, which requires that the

“governmental objective” served by such a restriction

“must be a legitimate and neutral one.” Turner, 482

at 90. Clearly, such a “legitimate and neutral”

objective must be _ rooted in reality, not in

imagination.

Respondents concede that the decision below

undertakes no Turner analysis (Opp. 13-18) and

directly conflicts with numerous federal appellate

decisions. (Opp. 11, 23). Respondents also expressly

admit “the possibility that 1n an unusual case a

prison official might misrepresent the penological

goal behind the challenged policy during ltigation.”

(Opp. 22). But Respondents do not explain why the

Court should ignore that reality and pretend that

First Amendment rights are well-protected by a form

of judicial review that takes no account of

contemporaneous reasons and puts its faith in

reasons that may be imagined by administrators or

courts after the fact. Instead, Respondents downplay

the Seventh Circuit majoritys abandonment of

Turner and its ratification of an exclusive and

permanent First Amendment restriction on male

death row inmates. Respondents state that the

decision below “does not conflict with any decision of

this Court,” but that is incorrect. Respondents do

not even claim that the decision below does not

conflict with other federal appellate decisions, but

simply assert that the “conflict with other courts of

appeals is overstated.” (Opp. 11). That assertion

also 1s incorrect.

The majority decision below seriously conflicts

with prior decisions of this Court and with the

decisions of other courts of appeals on an important

question of federal constitutional law and therefore

warrants review by this Court.

I. The Divided, En Banc Seventh Circuit’s Decision

Is Inconsistent With Prior Decisions Of This

Court.

Respondents concede (Opp. 13-14) that the

majority decision below did not apply “the four-factor

test announced in 7urner,” but contend that review

is not warranted because the decision below correctly

“appllied] this Court’s controlling precedent in Pe//

[v. Procunier, 417 U.S. 817 (1974),] and [Saxbe v.]

Washington Post |Co., 417 U.S. 843 (1974)}.”

Respondents’ argument is incorrect. TJurner’s

four-factor analysis provides the controlling law for

evaluating prison restrictions that impinge on

constitutional rights; it is not simply an alternative

mode of analysis that federal courts can choose to

use or disregard at their own discretion. ‘This Court

has made that clear on numerous occasions. See,

e.g, Beard v. Banks, 548 U.S. 521, 528 (2006)

(Turner “containls] the basic substantive legal

standards governing’ an inmate’s challenge to

restriction on periodicals for recalcitrant prisoners);

Overton v. Bazzetta, 539 U.S. 126, 132 (2003)

(Turners four-factor test is proper method of

“deciding whether a prison regulation affecting a

constitutional right that survives’ incarceration

withstands constitutional challenge”).’

If Turner is to be relegated to the status of an

alternative method of analysis, that is a matter for

this Court to decide, not the Seventh Circuit or

Respondents.

Furthermore, as both Judge Rovner and Judge

Wood noted in dissent, nothing in Pel/or Washington

Post supports THA-1480.05A’s exclusive and total

ban on face-to-face press interviews with male death

row inmates. (App. 22a, 24a, 28a-29a).- While

l

As we have shown (Pet. 23-29), triable issues exist with

respect to each of the four 7urner factors. 482 U.S. at 89°91.

[t is undisputed that THA-1480.05A applies exclusively to

male death row inmates. (App. 35a, 105a). Respondents argue

that the gender-based differential treatment issue “was never

raised helow at any stage of this litigation and thus is not

properly before the court.” (Opp. 14). In fact, Mr. Hammer has

consistently argued that the ban violates his right to equal

protection (see 7th Cir. J.A. at 26°40), and Mr. Himmelfarb, one

of Respondents’ attorneys, was specifically asked about the

gender-based differential treatment under THA-1480.05A

during the Seventh Circuit en banc argument

Respondents correctly note that this Court “explicitly

endorsed the ‘jailhouse-celebrity’ rationale” in FPe/l/

and Washington Post (Opp.12), there was no dispute

in those cases (unhke here) as to the actual reasons

for the prison officials’ actions. VPel/, 417 at 827, 830

(noting “the absence of substantial evidence in the

record to indicate that the officials have exaggerated

their response to these [security] considerations” and

that “this regulation is not part of an attempt by the

State to conceal the investigation and reporting of

[prison] conditions”); Washington Post, 417 U.S. at

848 (noting that restriction was “not part of any

attempt by the Federal Bureau of Prisons to conceal

from the public the conditions prevailing in federal

prisons” and that it was “motivated by the same

disciplinary and administrative considerations that

underlie” the policy in Pel).

Respondents also suggest that the decision below

as a matter of policy represents an improvement

upon Turner. According to Respondents, “prisoners

are resourceful ltigators who have little trouble

alleging evidence of malfeasance,” and the decision

below allows courts to “weed out baseless claims

before trial.” (Opp. 22). But the decision below

Question. “Do the same rules apply wherever th

women |federal death row inmates) are?”

Mr. Himmelftarb: “No, this 1s a special rule that only

applies to [the male death row inmates] in Terre

Haute.”

See http://www.ca7.uscourts.gov/tmp/V20I[L7RM.mp3 (ast

ited on Feb. 9, 2010)

6

precludes all such actions, not just those that are

“baseless.” Thus, Respondents’ “policy argument”

contradicts this Court’s holding in Vurner, which

required federal courts to “discharge their duty to

protect constitutional rights” of inmates when “a

prison regulation or practice offends a fundamental

constitutional guarantee.” Turner, 482 U.S. at 8&4.

Turner does not permit courts to accept post hoc or

“Imagined” security justifications in the face of direct

evidence of an unconstitutional purpose. The

Seventh Circuit disregarded its obligations under

Turner by ignoring Mr. Hammer's evidentiary

showing that THA-1480.05A was adopted for an

unconstitutional, content-based purpose. (App. 90a,

97a).

II. The Conflict Between The Decision Below And

Holdings Of Other Federal Appellate Courts Is

Substantial.

Respondents further contend that the conflict

between the Seventh Circuit's decision and decisions

of other federal appellate courts is “overstated” (Opp.

11). This argument is disingenuous. As we have

previously noted (Pet. 17-23), the Seventh Circuit

held that prison officials do not need to be pursuing a

legitimate penological interest when they adopt their

policy, so long as a “rational basis for [the policy]

could be imagined. ... It is not clear why one bad

motive would spoil a rule that is adequately

supported by good reasons.” (App. 5a, 10a)

~

This holding conflicts with the holdings in

Salahuddin v. Goord, 467 F.3d 263 (2d Cir. 2006),

Abu-Jamal v. Price, 154 F.3d 128 (38d Cir. 1998),

Quinn v. Nix, 983 F.2d 115 (8th Cir. 1993), and

Walker v. Sumner, 917 F.2d 382 (9th Cir. 1990). In

each of those cases, other courts of appeals made

clear that Vurner requires real, not imagined,

penological interests. Salahuddin, 467 F.3d at 277

(“[Tlhe Supreme Court requires the government to

close the circle prison officials must have been

pursuing the interest in inmate safety when”

adopting a restriction, in order to “ensurel | that

prison officials actually had, not just could have had,

a legitimate reason for burdening protected

activity”); Abu-Jamal, 154 F.3d at 134 (“[Lt is likely

that Jamal can demonstrate that the Department's

enforcement of the business and profession rule

against him was motivated, at least in part, by the

content of his articles and mounting public pressure

to do something about them, and hence, the actions

were not content neutral as required by Vurner’),

Quinn, 983 F.2d at 118-19 (“[P]rison officials in this

case were not motivated by the legitimate interests

they assert” because “the officials’ proffered

justification for their actions was_ pretextual”):

Walker, 917 F.2d at 385-87 (summary judgment for

prison officials was inappropriate where it was

unclear that “the interest proffered is the reason why

the regulation was adopted or entorced”). Or, as the

District of Columbia Circuit has noted, “even if

[prison officials! provide an objectively valid reason

for their actions . the District Court must still

Inquire into whether there is a disputed tssue of fact

.

as to whether [the prison officials] were actually

motivated by an illegitimate purpose.” Aumberl/in v.

Quinlan, 199 F.3d 496, 503 (D.C. Cir. 1999).

The Seventh Circuit’s decision would allow prison

officials to preclude all inquiry into whether a prison

Kirst Amendment restriction was adopted for a

“legitimate penological purpose” either by

providing a post-hoc, litigation affidavit, or because

such a purpose could be “imagined.” (App. 5a, 10a).

Neither Salahuddin, Abu-Jamal, Quinn, Walker, nor

Kimberlin authorizes the granting of summary

judgment for prison officials when a prisoner is able

to offer evidence showing that the proffered post-hoc

penological interest was pretextual; to the contrary,

those cases hold that prison officials must have been

motivated by a legitimate purpose at the time they

adopted a restriction. Sa/ahuddin, 467 F.3d at 277;

Abu-Jamal, 154 F.3d at 134; Quinn, 983 F.2d at 118-

19; Walker, 917 F.2d at 385-87; Aimberlin, 199 F.3d

at 503.

9

CONCLUSION

The petition for a writ of certiorari should be

grranted.

Respectfully submitted,

Jerold S. Solovy Barry Sullivan

Counsel of Record Cooney & Conway Chair in Advocacy

John R. Storino and Professor of Law

Chad E. Bell LOYOLA UNIVERSITY CHICAGO

JENNER & BLOCK LLP 25 Kast Pearson Street

353 N. Clark Street Chicago, Illinois 60611

Chicago, IL 60654 (312) 915-7787

(312) 222-9350

Attorneys for Petitioner

February 9, 2010