Fifth Circuit: Texas Prison Property Rules Withstand Scrutiny Under Religious Free-Exercise Clause
by David Reutter
On October 4, 2022, the U.S. Court of Appeals for the Fifth Circuit considered the question: When is cleanliness not next to godliness? In answer, the Court said that the Texas prison system’s rules for storage of a prisoner’s personal property may not be broken, even if the property the prisoner then loses is vital to his religious exercise. Affirming the grant of qualified immunity (QI) to a Texas prison guard who confiscated a prisoner’s religious materials, the Court refused to find a violation of the First Amendment’s Religious Free-Exercise Clause.
The appeal was brought by prisoner Michael J. DeMarco, Jr., and it was the second time his case landed on the Fifth Circuit’s docket. DeMarco’s civil rights complaint was filed in December 2014, naming as defendants Jeremy J. Bynum, a guard at the Allred Unit of the Texas Department of Criminal Justice (TDCJ), and other prison officials.
DeMarco accused Bynum of confiscating his religious materials, in violation of his First Amendment right to free exercise of his religion. He also said that when he complained, the guard retaliated with a trumped-up charge that DeMarco threatened him. For that, DeMarco was thrown in solitary confinement. After that he filed suit pro se.
The U.S. District Court for the Northern District of Texas dismissed the complaint for failure to state a cognizable claim. DeMarco appealed, and the Fifth Circuit reversed in part. First, it seemed the district court thought the prisoner’s religious convictions were “a sham,” the Court said, adding: “We disagree.” The Court also faulted TDCJ for failing to “put forward” any government interest that might justify the alleged seizure, quoting Turner v. Safley, 482 U.S. 78 (1987). So it reinstated the prisoner’s claims against Bynum. See: DeMarco v. Davis, 914 F.3d 383 (5th Cir. 2019). The U.S. Supreme Court then declined to issue a writ of certiorari to hear the case. See: DeMarco v. Davis, 140 S.Ct. 250 (2019).
On remand, Bynum moved for summary judgment. He contended that confiscation of DeMarco’s property – including any religious materials – was made under TDCJ Administrative Directive (AD) 03.72, and that the policy was reasonably related to a legitimate penological interest: prison security. Since he believed that the confiscated materials could be used in the trafficking or possession of contraband, Bynum contended that he was entitled to QI. The district court agreed, granting Bynum’s motion for summary judgment. DeMarco appealed.
Of the several issues raised on appeal, the Fifth Circuit considered only one: whether Bynum’s confiscation of DeMarco’s materials violated the First Amendment’s Religious Free-Exercise Clause. The district court had found DeMarco’s property was improperly stored under AD-03.72, while also finding that policy was reasonably related to the penological goal of prison safety. The Fifth Circuit agreed.
AD-03.72 provides that when a prisoner “is not in his cell, his property – with some exceptions not relevant here – must be stored in a container with a storage capacity of 1.75-2.0 cubic feet,” the Court noted. Improper storage may result in confiscation. The Court also said that TDCJ “may impose reasonable restrictions on the type and amount of personal property that inmates are allowed to possess while in prison,” citing Long v. Collins, 917 F.2d 2 (5th Cir. 1990). Affirming that same principal here, the Court found AD-03.72 does not infringe upon a prisoner’s right to free exercise of religion, since its aim is reducing the access of others to a prisoner’s personal property and preventing the trafficking of contraband.
DeMarco conceded that he did not store his religious materials as required by policy, the Court noted. He could also, in the alternative, request religious materials through the prison chaplain. Thus, Bynum’s actions were objectively reasonable, and he was entitled to QI, the Court said. The district court’s order was therefore affirmed. See: DeMarco v. Bynum, 50 F.4th 479 (5th Cir. 2022).
DeMarco has again asked the U.S. Supreme Court to hear the case, filing for a writ of certiorari on December 29, 2022. Should that be granted, PLN will update developments as they are available. It will be interesting to see if the high court’s majority of religious conservatives agrees with TDCJ that its storage rules trump a prisoner’s right to materials needed for the free exercise of his religion.
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