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California: Confiscation of Prisoner’s Mail May Violate First Amendment

In a First Amendment case alleging improper confiscation of a state prisoner’s incoming and outgoing mail, U.S. District Court Judge Susan Illston denied a motion for summary judgment filed by prison officials.

In 2007, Marcus Harrison, a validated member of the Black Guerrilla Family (BGF) housed at California’s Pelican Bay State Prison, filed a federal lawsuit pursuant to 42 U.S.C. § 1983 alleging that the confiscation of his mail violated his rights under the First Amendment.

Acting pursuant to regulations prohibiting the mailing of gang-related materials and other contraband, prison officials seized from Harrison’s outgoing mail items related to the Black August Memorial, the New Afrikan Collective Think Tank and the New Afrikan Institute of Criminology, as well as a drawing of a dragon. From his incoming mail they confiscated pictures of George Jackson (a co-founder of the BGF), Malcolm X, Nat Turner and others, which Harrison had previously sent out for copying.

While not disputing his membership in the BGF, Harrison denied that the confiscated materials were gang-related. He instead maintained that the materials all related to the promotion of educational, social, cultural and political awareness from the perspective of the New Afrikan.

In a well-reasoned order, Judge Illston noted that a court applies a “slightly different” test for evaluating a confiscation claim involving incoming mail than it does for evaluating a confiscation claim involving outgoing mail, with the latter being “slightly more difficult for prison officials.”

Restrictions on incoming mail are governed by the four-factor legitimate penological interest test of Turner v. Safley, 482 U.S. 78 (1987). The confiscation of outgoing mail, on the other hand, must further an important or substantial governmental interest unrelated to the suppression of expression; moreover, pursuant to Procunier v. Martinez, 416 U.S. 396 (1974), any restrictions on outgoing mail must be “no greater than necessary or essential” to protect that governmental interest.

The district court, concerned with “the possibility that defendants may have taken a race-based shortcut and assumed anything having to do with African-American culture could be banned under the guise of controlling the BGF,” was not persuaded that the material confiscated from Harrison’s mail “might be thought to encourage violence.” The defendants’ motion for summary judgment was therefore denied.

This case remains pending, with a settlement conference scheduled in January 2011. See: Harrison v. Institution of Gang Investigations, U.S.D.C. (N.D. Cal.), Case No. 3:07-cv-03824-SI.

The confiscation of New Afrikan literature from a prisoner was also addressed by the Second Circuit Court of Appeals in 2004, in a ruling that reversed the dismissal of the prisoner’s First Amendment claim. See: Shakur v. Selsky, 391 F.3d 106 (2nd Cir. 2004) [PLN, Sept. 2005, p.38].

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Related legal case

Harrison v. Institution of Gang Investigations