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Ninth Circuit Says Arizona DOC Policy Cannot Be Used to Censor Prisoner’s Free Expression

by David Reutter 

An Arizona prisoner’s civil rights claim is headed to trial in June 2023, after the U.S. Court of Appeals for the Ninth Circuit reinstated it, saying his prison’s policy on material he is allowed cannot be applied inconsistently without trampling his First Amendment liberties.

The suit was brought in federal court for the District of Arizona by Edward Lee Jones, Jr., a prisoner at Arizona State Prison in Eyman. In late 2017 and early 2018, Jones ordered two Nation of Islam books by Elijah Muhammad: Message to the Black Man in America (1965) and The Fall of America (1973). He also ordered six hip-hop and R&B CDs by Kendrick Lamar, The Weeknd and Snoop Dogg, among others.

Prison officials determined these items were contraband and confiscated them under Department Order (DO) 914.07. The CDs violated rules prohibiting depiction or promotion of violence, sexual excitement, gangs and drugs, they said, also citing a catchall for items that “may otherwise be detrimental to the safe, secure, and orderly operation of the institution.” The two religious texts were taken for allegedly promoting racism or the superiority of one group.

Jones filed suit pro se in June 2018 under 42 U.S.C. § 1983, alleging both the rule and the way it was applied violated the free speech and free exercise clauses of the First Amendment, as well as the due process clause of the Fourteenth Amendment. He also alleged a violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq. The district court granted Defendants summary judgment on all claims, and Jones appealed.

On January 24, 2022, the Ninth Circuit reversed that decision. Beginning with the free speech claims relating to the CDs, the Court found that DO 914 is not unconstitutional on its face; accepting prison official’s arguments, it found the rule is rationally related to a legitimate penological interest, as required under Turner v. Safley, 482 U.S. 78 (1987).

But “Jones has proffered sufficient evidence of inconsistent application of DO 914 to preclude summary judgment,” the Court added. In addition to his own affidavit, Jones submitted affidavits from two other prisoners that detailed specific instances in which content that violates the order was allowed in the prison.

The Court emphasized that “variations in the enforcement of a policy will not always rise to the level of inconsistent application.” Jones claimed that DO 914 was consistently applied to ban rap music but inconsistently applied to other music genres and media. Based upon that pleading, the Court found a material question of fact whether the policy is selectively enforced against a disfavored expression – in this case, rap and R&B musical genres. Thus it said the district court should not have granted summary judgment.

Next the Court turned to the claims relating to the texts. Jones asserted his “right to read his Nation of Islam texts during Ramadan, as he normally does every year.” But the district court assessed whether Jones was able to “successfully observe Ramadan without the books he requested.” The Court said that wasn’t the issue, though, and the lower court erred by recharacterizing Jones’ religious obligations at that “higher level of generality.”

The district court also decided that RLUIPA required Jones to show his religious exercise was either required by his faith or consistent with his past observance. But the Ninth Circuit disagreed. What is important, the Court said, is whether the religious texts are a “sincere component of Jones’ religious practice, without reference to whether Jones, or other members of the Nation of Islam consider the practice mandatory.”

“[T]there is no legal basis to fault Jones for not adding the study of Elijah Mohammed’s texts during Ramadan to his religious practice sooner,” the Court said. “[He did not waive his rights by not studying these texts in the past.”

For the same reasons, the Court found the district court’s analysis “does not hold up under the free exercise clause.” The constitution “does not require plaintiffs to prove the centrality or consistency of their religious practice,” the Court noted, citing Hernandez v. Comm’r, 490 U.S. 680 (1989).

Finding a genuine issue of fact as to whether denying the texts burdened Jones’ religious exercise, the district court’s order was reversed, with direction on remand to determine if DO 914 meets the “exceptionally demanding” least-restrictive-means standard. Defendants requested rehearing before the full Ninth Circuit, but that was denied on March 31, 2022. See: Jones v. Slade, 23 F.4th 1124 (9th Cir. 2022); and U.S. App. LEXIS 8647 (9th Cir.).

This was Jones’ second suit filed over confiscated items; five days before filing it, he brought a separate pro se  suit against DOC and then-Director David Shinn over the denial of five other texts, including four more Nation of Islam texts. The district court also granted Defendants summary judgment in that case, which the Ninth Circuit reversed on appeal on December 14, 2022 – liberally citing its own earlier decision in Jones’ other case. See: Jones v. Shinn, 2022 U.S. App. LEXIS 34447 (9th Cir.).

Meanwhile, a settlement conference failed to produce an agreement on November 28, 2022. The district court then consolidated the two cases on February 9, 2023. Four days later, Jones picked up representation from attorneys Brandon T. Delgado, David B. Rosenbaum and Heather A. Robles of Osborn Maledon PA in Phoenix. Trial was set for June 20, 2023, and PLN will report updates as they are available. See: Jones v. Shinn, USDC (D. Ariz.), Case No. 2:18-cv-01972.