Ninth Circuit Holds Intermediate Scrutiny Applies in Challenges to Facially Discriminatory Prison Regulations
California state prisoner David Scott Harrison filed a pro se federal civil rights action under 42 U.S.C. § 1983 alleging the regulations governing the ability of prisoners within the California Department of Corrections and Rehabilitation (CDCR), which permitted women in higher security classifications to purchase property from contracted vendors that men in lower security classifications were not allowed to purchase, violated the Equal Protection Clause. The district court granted the defendants summary judgment after finding, without a hearing, that men and women CDCR prisoners were not similarly situated. Harrison appealed.
The Ninth Circuit appointed Washington, D.C., attorneys Samir Deger-Sen and Adam J. Tuetken of Latham & Watkins, LLP to rebrief the case. The court noted that the CDCR’s Authorized Personal Property Schedules were identical for men and women prior to 2008. The current version separates men and women and divides men according to their security classification. The types of property that women in all security classifications are permitted, but none of the men are allowed to purchase, include: products containing small parts such as hair dryers and electric curling irons; scarves, kimonos, and bath towels; clothing such as denim jeans; sugary foods; jewelry and the card game Uno.
The CDCR alleged those items could be used as weapons or to brew alcoholic beverages, or could lead to disputes over gambling or money.
In this appeal, it was undisputed that men and women in the CDCR were subject to the same security classification system and that women in the highest security classification housed in general population were permitted to purchase and possess personal property denied to men in the lowest security classification housed in general population. The court held that, regarding property permitted by CDCR regulations, gender is the only relevant difference between Harrison and women prisoners in the same security classification.
The CDCR maintained that Harrison had no standing to sue because he never actually attempted to purchase the items available only to women prisoners. The appellate court called that argument a “red herring,” noting that Harrison’s prison grievances and administrative appeal made it clear that he wished to purchase the items and would do so were it permitted. Thus, he demonstrated an “injury in fact,” giving him standing to sue.
The court held that the district court should have applied intermediate scrutiny to Harrison’s claim and should have conducted a “means-end” fit assessment of the CDCR’s purported justifications for them and determined whether the regulations were “grossly over- [or] under-inclusive” in violation of equal protection principles.
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Related legal case
Harrison v. Kernan
|Cite||971 F.3d 1069 (9th Cir. 2020)|
|Level||Court of Appeals|
|Appeals Court Edition||F.3d|