[00:00:00] Speaker 03: And we'll move on to the final case for today, Whitford. [00:00:39] Speaker 00: Good morning, Your Honors. [00:00:40] Speaker 00: I'm Aris Montes for Plaintiff Machiappi-Witford. [00:00:43] Speaker 00: With the court's permission, I'd like to reserve three minutes for rebuttal. [00:00:46] Speaker 00: Very well. [00:00:46] Speaker 00: Thank you, Your Honor. [00:00:48] Speaker 00: Machiavelli Whitford is an enrolled member of the Blackfeet Nation and a devout follower of native religious practices that he's followed his whole life and that his tribe has followed since time immemorial. [00:00:57] Speaker 00: Yet Mr. Whitford has been unable to practice some of these religious tenets because Montana State Prison requires six months free of disciplinarian fractions, what we call the clear conduct policy. [00:01:07] Speaker 00: I want to begin by pointing the court's attention to three specific errors in the district court's opinion. [00:01:12] Speaker 00: And when these legal errors are corrected, Mr. Whitford clearly prevails. [00:01:17] Speaker 00: So first, the district court made a fundamental error in applying RLUPA's basic framework considering Mr. Whitford's disciplinary history in the substantial burden analysis when case law across the circuits makes clear that this information is only appropriately considered in the compelling interest in least restrictive means prongs of the analysis. [00:01:35] Speaker 00: And second, and perhaps most glaringly, the district court failed to hold defendants to their exceptionally high burden of showing that there is a compelling interest and especially that this is the least restrictive means to achieve that compelling interest. [00:01:49] Speaker 02: I thought you said that his record would be relevant to that question. [00:01:53] Speaker 00: to the compelling interest. [00:01:54] Speaker 02: Disciplinary record. [00:01:56] Speaker 00: Yes, Your Honor. [00:01:57] Speaker 00: It is an important consideration. [00:01:59] Speaker 00: I think there's reasons to question. [00:02:01] Speaker 02: Animated the district court's decision. [00:02:03] Speaker 02: I mean, the district court spent a lot of time talking about his murder convictions, the fact that he stabbed other inmates, assaulted correctional officers, has 181 disciplinary violations. [00:02:16] Speaker 02: I mean, this is not somebody we're going to allow to sort of wander around the prison grounds. [00:02:21] Speaker 00: Right, your honor. [00:02:22] Speaker 00: And so I think where the district court erred there is in analyzing in the substantial burden prong. [00:02:28] Speaker 00: It is, again, important in the compelling interest. [00:02:30] Speaker 02: But even there, I think- But the district court thought that that was dispositive, did it not, of the compelling interest? [00:02:37] Speaker 02: That that was a sufficient justification to establish the fact that we have to keep this guy under very restrictive conditions or he's going to hurt people. [00:02:45] Speaker 00: Yes, Your Honor. [00:02:45] Speaker 00: And so addressing the compelling interest issue there, I want to make clear that the defendants didn't do an individualized assessment into Mr. Whitford's disciplinary history as the reason why his religious rights were restricted. [00:02:59] Speaker 00: It's a blanket policy that applies. [00:03:01] Speaker 02: Well, they've got him in the high security area of the prison for that reason, do they not? [00:03:05] Speaker 02: And they don't want him mixing with the low security side of the prison. [00:03:10] Speaker 00: Right, but he still has access to group services, including Sweat Lodge setup and, I'm sorry, Sweat Lodge itself and pipe ceremony itself. [00:03:20] Speaker 00: And so he's able to engage in these group settings. [00:03:23] Speaker 00: On the high side. [00:03:24] Speaker 00: Yes, Your Honor. [00:03:25] Speaker 02: And there haven't been any powwows on the high side. [00:03:28] Speaker 00: No, and that's an alternative that Mr. Whitford provides that the defendants don't engage in at all. [00:03:34] Speaker 02: Let me ask you a more practical question. [00:03:36] Speaker 02: What kind of injunctive relief can the court afford Mr. Whitford now that he is in the custody of the New Jersey Department of Corrections? [00:03:44] Speaker 00: Right, Your Honor. [00:03:45] Speaker 00: And we appreciate this court's opinion that the case is not moved after the defendants filed a motion to dismiss. [00:03:52] Speaker 00: And so for that reason. [00:03:54] Speaker 02: But that doesn't answer the injunctive relief component. [00:03:56] Speaker 02: I mean, he may still have a claim for damages, which is one of the reasons why we decided it was not moved. [00:04:02] Speaker 02: But I want to answer to my question on injunctive relief. [00:04:07] Speaker 00: Right. [00:04:07] Speaker 00: And so, you know, I think that there is every reason to believe that Mr. Whitford will be returned back to Montana State Prison because of... To be released or because the New Jersey can't control? [00:04:22] Speaker 00: Well, there is a question in New Jersey's letter about the transfer. [00:04:27] Speaker 00: They do reserve the right to transfer him back to Montana State Prison. [00:04:30] Speaker 02: It becomes a major problem for them. [00:04:32] Speaker 02: They're going to ship him back to Montana, right? [00:04:34] Speaker 00: Right. [00:04:34] Speaker 02: So technically, he's still in the custody of the Montana Department of Corrections. [00:04:38] Speaker 00: Exactly. [00:04:39] Speaker 00: Under the Interstate Corrections Compact, Montana has control and custody of Mr. Whitford. [00:04:45] Speaker 00: And so part of that statute also allows that all benefits and rights conferred from Montana can be benefited by the individual in whatever state that they are in. [00:04:57] Speaker 02: So are you asking for a mandatory injunction that tells [00:05:02] Speaker 02: the Montana Department of Corrections that they have to get the New Jersey Department of Corrections to hold powwows at whatever facility he's being held in New Jersey? [00:05:11] Speaker 00: Well, there is supportive case law that has showed that some benefits can be conferred to the sending state. [00:05:18] Speaker 02: Is that one of the things that you want the court to do? [00:05:20] Speaker 02: I'm trying to get some idea here of what relief is practical and what relief you want the court to afford if you win. [00:05:28] Speaker 00: Right, and I think the scope of relief can be a question for the district court, much like... Can you now? [00:05:34] Speaker 02: What are you going to ask the district court if we send it back? [00:05:38] Speaker 02: What do you want the district court to do? [00:05:40] Speaker 00: I think it would be appropriate to, you know, remove the overall restriction, which is the clear conduct policies on these specific rights that burden Mr. McMurray. [00:05:51] Speaker 02: How is that not mooted by the fact that he's in New Jersey? [00:05:54] Speaker 02: I mean, there's nothing in the record that suggests that New Jersey [00:05:57] Speaker 02: even addresses Native American rights. [00:06:02] Speaker 02: I have no idea whether they have any Native American inmates in New Jersey. [00:06:07] Speaker 02: I'm guessing probably not as many as we have in Montana. [00:06:10] Speaker 00: Yeah, that's definitely true. [00:06:11] Speaker 00: And well, because Mr. Whitford is still under the custody and control of Montana, Montana cannot continue to violate Mr. Whitford's religious rights. [00:06:21] Speaker 00: And so he will have the opportunity to- To do what? [00:06:26] Speaker 02: I'm still like getting an answer to my question. [00:06:29] Speaker 02: What do you want the court to do? [00:06:31] Speaker 00: Well, I think that there's an opportunity for Mr. Whitford to engage in additional dispositive motions for the ability for him to request to be sent back and then the... Oh, so you want a mandatory injunction ordering his return to the state of Montana? [00:06:46] Speaker 00: Well, that's a request that Mr. Whitford can engage in that would be separate from this. [00:06:50] Speaker 02: Is that what you're gonna ask the district court for? [00:06:52] Speaker 00: I think that would be a serious consideration for him to be, because it is an ongoing religious rights violation in the transfer and their decision to transfer him in this moment, especially in the middle of briefing and the concerning nature of the transfer, the ongoing religious rights violations in the transfer. [00:07:09] Speaker 02: Wouldn't that require the district court then to sort of reapply the analysis on the compelling interests? [00:07:17] Speaker 02: Let's say that the district court decides, as it did the first time around, [00:07:22] Speaker 02: He's a very dangerous inmate. [00:07:24] Speaker 02: And for that reason, and that that was the prominent reason why he was moved out of Montana to New Jersey. [00:07:31] Speaker 02: Are you asking the court to basically look over the shoulder of the warden and make a different security classification? [00:07:40] Speaker 02: Do we have the authority to do that under Railupa? [00:07:44] Speaker 00: Well, there is some case law that brings challenges based off of transfers that added to religious rights violations. [00:07:54] Speaker 00: For example, in Jackson. [00:07:56] Speaker 02: Do you think Supreme Court authority would allow a federal district court the authority to do that, to second guess [00:08:03] Speaker 02: a security classification decision and say, well, it may be dangerous to house this guy in Montana, but you've got to bring him back because you interfered with his right loop arise. [00:08:13] Speaker 00: Well, I think that there would be additional fact finding there to really determine what was the reason for the transfer. [00:08:20] Speaker 00: And if it was in [00:08:22] Speaker 00: you know, if there was a concern about First Amendment retaliation, if there was a concern about this ongoing ralupa violation, I think there is sufficient authority for the district court to order him to come back. [00:08:34] Speaker 04: Where is the prison that he's in now? [00:08:38] Speaker 00: In New Jersey State Prison. [00:08:40] Speaker 00: New Jersey? [00:08:41] Speaker 00: Yes, Your Honor. [00:08:44] Speaker 04: Well, I thought [00:08:44] Speaker 04: what was left was kind of like a declaratory judgment if he ever came back that this is what the Montana people would have to do. [00:08:53] Speaker 00: Yes, exactly. [00:08:54] Speaker 00: That's an option for the district court to order is to ensure that it's clear that the Montana state system violated Mr. Whitford's religious rights. [00:09:05] Speaker 04: I thought that's what you were essentially asking from us to direct the district court to do. [00:09:12] Speaker 04: If he's not, that would be the effect of it. [00:09:16] Speaker 00: Yeah, and I think that that would be an appropriate remedy here. [00:09:20] Speaker 00: And so, you know, turning to the district court's errors in the reasoning again, the district court failed to hold defendants to the very exceptionally high burden of showing that there [00:09:34] Speaker 00: are that they considered and rejected alternatives. [00:09:38] Speaker 00: Mr. Whitford presented a number of alternatives that the defendants didn't even mention in any of their briefing and summary judgments. [00:09:46] Speaker 00: So that included looking to the Washington Department of Corrections, which allows all of these religious rights that he seeks without any sort of restriction on disciplinary issues. [00:09:57] Speaker 00: and allows even more services than the Montana State Prison does. [00:10:01] Speaker 02: Is there anything in the record that was presented to the District Court in terms of how the Washington Department of Corrections is set up and what their facilities look like as compared to [00:10:10] Speaker 00: There is nothing on the record, but that is the defendant's burden to undergo an analysis into what are the security interests that Washington has. [00:10:20] Speaker 00: Is it the same as Montana? [00:10:21] Speaker 02: Simply on Mr. Woodford's assertion that when I was incarcerated in Washington, they were able to accommodate me. [00:10:29] Speaker 02: Is that enough? [00:10:30] Speaker 00: I believe so. [00:10:31] Speaker 00: I mean, I think where the district court cited war soldier as well, another case in the circuit where the plaintiff looked to other Department of Corrections and asserted that other policies have [00:10:47] Speaker 00: the ability to have long hair, which was the assertion that the plaintiff wanted to practice that religious right to have their hair long. [00:10:56] Speaker 00: And that was sufficient for them to investigate that policy in those different departments of corrections to see if it was an available option. [00:11:06] Speaker 00: And so the defendants didn't, you know, again, didn't even mention the Washington Department of Corrections in any of their support of material. [00:11:12] Speaker 00: didn't look to his ability to go to a powwow on the high side. [00:11:16] Speaker 00: They continuously asserted that he's not able to go to the powwow on the low side. [00:11:20] Speaker 00: I think there's reason to question some of their reasons to deny that as well. [00:11:26] Speaker 00: But even just looking at his ability to go to the high side, they did not grapple with that alternative whatsoever. [00:11:32] Speaker 00: There's some other, you know, common sense alternatives that they could have considered. [00:11:36] Speaker 00: For example, considering whether the restriction can be lessened to like one month, perhaps, you know, three months. [00:11:46] Speaker 00: Could it depend on the security, the issue of the disciplinary and how serious of a security issue it is? [00:11:53] Speaker 00: They didn't consider any of these kind of common sense alternatives. [00:11:57] Speaker 00: And so for that reason, there's no question that it was an error for the district court to simply just defer to the defendant's overall compelling interests when Holtby Hobbs was very clear that if there are other lesser restrictive means, then the defendants must take it. [00:12:13] Speaker 00: And so that alone is a reason and likely the clearest way for this court to reverse [00:12:19] Speaker 04: Would you address quickly how some of these things that he was not able to do actually burden his religious observance? [00:12:32] Speaker 00: Yeah, of course. [00:12:34] Speaker 00: So a substantial burden has been defined in Johnson v. Baker as a ban, a prohibition, an undue delay, even an uncertainty to practice. [00:12:44] Speaker 04: But he was allowed to go to all the actual ceremonies and the observances. [00:12:51] Speaker 04: These things were kind of ancillary to that, were they not? [00:12:57] Speaker 00: well uh... and i think that that was one of the district court's area it kind of um... uh... asserted that that it was an inconvenience that he couldn't go to these other practices because he had access to all these services but really that would be questioning the centrality of setting up the sweat lodges that [00:13:15] Speaker 00: Yes, so setting up the sweat lodge is part of the sweat lodge ceremony itself as Mr. Whitford believes it to be. [00:13:20] Speaker 00: And I think that that's pretty common for tribal practices. [00:13:23] Speaker 00: And you can see how that's supported in the Washington Department of Corrections. [00:13:27] Speaker 00: They don't have any sort of division between sweat lodge set up and sweat lodge ceremony. [00:13:32] Speaker 00: And so it was on the defendants to really show why there is a compelling interest to divide the sweat lodge setup and sweat lodge ceremony and why to limit it to only four people. [00:13:43] Speaker 00: You know, there's a question of can it be expanded to more people? [00:13:46] Speaker 00: If it's not divided, then obviously anyone else can kind of engage in the ceremonial practice. [00:13:52] Speaker 00: And so it's important to look at the specific individual religious practice as alleged and not look into the overall context of the native religious practices and kind of like an umbrella category. [00:14:06] Speaker 00: With pipe carrying, again, it was Mr. Whitford wants to be eligible to be considered for pipe carrying. [00:14:15] Speaker 00: And now the clear conduct policy just prevents him from being eligible and to be considered by his community to become a pipe carrier. [00:14:23] Speaker 00: And he has a long practice of being a pipe carrier in his tribe and has a lot of knowledge related to that. [00:14:29] Speaker 00: So that's why it burdens his religious practice. [00:14:32] Speaker 04: And the powwows, they haven't had any powwows on the high side. [00:14:35] Speaker 04: Is that correct? [00:14:37] Speaker 04: So how is it a burden? [00:14:38] Speaker 00: Right, so there's no ability to have a pow on the high side, and the defendants only consider his ability to have a pow on the low side. [00:14:50] Speaker 00: There has never been one on the high side, and so he just hasn't been able to engage in one in over 10 years. [00:14:57] Speaker 00: And the district court made an error there to just say that because no powwow has been scheduled that there is no burden, but that's exactly why the practice is burdened. [00:15:09] Speaker 02: But isn't the problem that there aren't enough, A, nobody's offered to do it and there aren't enough qualified inmates who have a clean enough disciplinary record on the high side to warrant a powwow? [00:15:24] Speaker 00: I think that is a question. [00:15:25] Speaker 00: And Mr. Whitford raises the possibility of it being overly restricted on people on the high side in general because only two out of 20 people, I think, in one of the pipe ceremonies identified as being six months free, disciplinary free. [00:15:41] Speaker 02: And so... That's not enough to have a powwow. [00:15:44] Speaker 00: I believe that two people perhaps would not. [00:15:48] Speaker 00: It's usually like a larger community setting. [00:15:50] Speaker 00: And so, I mean, it is a question. [00:15:53] Speaker 00: It is a factual question that I think there isn't clear evidence on if there would be sufficient people now. [00:15:59] Speaker 00: But at least if the clear conduct policy were removed, then there would be an ability for individuals on the high side. [00:16:06] Speaker 02: Once the clear conduct policy eliminated altogether. [00:16:09] Speaker 02: Oh, I'm sorry. [00:16:10] Speaker 00: I mean to Mr. Whitford in particular. [00:16:12] Speaker 00: And there's the ability for him to go to powwow on the low side if there isn't enough people who can engage. [00:16:18] Speaker 02: You really do want the court to look over the shoulders and second guess the security decisions that were made here. [00:16:25] Speaker 00: Well, I think that there's a reason to question the compelling interest here because [00:16:30] Speaker 00: the clear conduct policy is arbitrarily applied to the compelling interests that they claim because Mr. Whitford, again, can engage in these kind of communal spaces where there's more of a... The court found that the problem was that Mr. Whitford can't follow the rules and won't follow the rules and is dangerous. [00:16:51] Speaker 02: And so that's why he can't keep himself out of trouble for six months. [00:16:56] Speaker 02: Right, so I want to be clear again that there was no individualized assessment into his violent nature to- He's got a declaration that lays that all out as the concern that the prison officials had about trying to accommodate his request. [00:17:11] Speaker 00: Well, if that's the concern, it's a bit confusing why they would allow him to go into these more communal settings, where there's more of an opportunity to engage in, perhaps, contraband. [00:17:22] Speaker 02: The court looked at that evidence and then said, I'm not going to second guess and interfere with the prison's decision on security issues. [00:17:31] Speaker 02: And I think there's pretty good Supreme Court authority that says that federal judges should not be doing that. [00:17:37] Speaker 02: If the prison official can articulate [00:17:40] Speaker 02: a legitimate safety concern for a regulation. [00:17:43] Speaker 00: I see that I'm over time. [00:17:46] Speaker 00: So that is true in terms of the overall idea of deference, but it's also been highly limited in the Supreme Court's opinion there where, of course, there are important security interests, but courts are required to really look into the compelling interest to ensure that that is what was informing the decision and that there is sufficient evidence and detailed evidence has been required. [00:18:11] Speaker 02: What more do you [00:18:12] Speaker 02: What more do you want to put into the record on that issue? [00:18:17] Speaker 02: I mean, the prison official says, this is this guy's record. [00:18:20] Speaker 02: These are all the problems that we've had with him. [00:18:22] Speaker 02: He can't keep his nose clean for more than a few days, apparently, before he offends again. [00:18:28] Speaker 02: What additional evidence would you require the prison to offer to justify second guessing the warden on that issue? [00:18:40] Speaker 00: Well, I think the evidence that it would be required would be the evidence to support the overall policy. [00:18:46] Speaker 00: And that's where there is a mismatch in terms of what they are saying and the evidence that they're providing. [00:18:52] Speaker 02: But you're saying that they didn't do it on an individualized basis, but they did with Mr. Whitford, because he was the one who was asking, and that was the reason that they wouldn't accommodate him. [00:19:03] Speaker 00: The important time period there is the compelling interest has to be at the time that they're applying the restriction. [00:19:11] Speaker 00: And here, what is kind of triggering the restriction is the overall policy. [00:19:17] Speaker 00: It's not an individualized assessment into Mr. Whitford's disciplinary issues. [00:19:22] Speaker 02: I'm not sure I understand. [00:19:24] Speaker 02: You're not suggesting that the disciplinary problem had ceased. [00:19:29] Speaker 02: I mean, as I read the record, it's an ongoing problem with this guy. [00:19:34] Speaker 00: Well, and am I wrong? [00:19:36] Speaker 02: Did I misunderstand the record? [00:19:38] Speaker 00: Well, I mean, I think there is a Mr. Whitford's disciplinary issues have improved over the last few years. [00:19:45] Speaker 00: You know, in the past few years, there's been a handful of disciplinary issues. [00:19:49] Speaker 00: It's been a lot more [00:19:50] Speaker 00: in the previous years. [00:19:52] Speaker 00: And so in that situation, there would be a question of, can they permit him more to engage in these religious practices that he's able to do? [00:20:03] Speaker 00: And that's why the overall policy is so restrictive, is because it's an automatic trigger, no matter how big or how small the disciplinary is. [00:20:10] Speaker 00: and it's a restriction for half of a year. [00:20:15] Speaker 02: So that is, and you know, if someone gets another perhaps, you know, insignificant, not insignificant, but... But I mean, he's been involved in some pretty, I mean, murders, assaults on correctional officers, other inmates, basically violent conduct. [00:20:31] Speaker 02: And I'm sure out of the 181, there are a lot of what I would call fairly nominal rules violations, but there's some pretty serious stuff here. [00:20:44] Speaker 00: Sure, Your Honor. [00:20:45] Speaker 00: And again, that's just not how the policy was considered and the reason why they applied the restriction. [00:20:51] Speaker 02: Why do you say that when we have declarations from prison officials saying that this was taken into consideration in responding to Mr. Whitford's requirements? [00:21:01] Speaker 00: I mean, again, I'll reiterate that he can go to these group services and the defendants don't really explain why these other religious practices are an additional security concern. [00:21:13] Speaker 00: They don't explain why the setup is different than the sweat lodge itself or why pipe carrying where there's less people is different than the pipe ceremony itself. [00:21:22] Speaker 00: And so they're required to explain that and they just failed to meet their burden. [00:21:28] Speaker 03: We've had you up there for a long time. [00:21:29] Speaker 03: We'll give you a little break. [00:21:30] Speaker 03: Thank you, Your Honor. [00:21:31] Speaker 03: But we'll give you three minutes for rebuttal, okay? [00:21:42] Speaker 01: Thank you. [00:21:43] Speaker 01: Good morning, Your Honors. [00:21:43] Speaker 01: Blake Cummins on behalf of the State of Montana. [00:21:46] Speaker 01: The district court here found that the clear conduct policy did not violate the appellant's rights under the Religious Land Use and Institutionalized Persons Act, and this court should affirm that holding for two reasons. [00:21:59] Speaker 01: The first is that the clear conduct policy is fundamentally different than many of the policies that this court and other circuits have found to be violative of our Lupa. [00:22:11] Speaker 01: And that fundamental difference involves the nature [00:22:14] Speaker 01: of what that policy requires. [00:22:16] Speaker 01: The second is that even were this court to find that in one or more instances, Arlupa did place a substantial burden on Mr. Whitford's rights, the district court was correct that the clear conduct policy is the least restrictive means by which Montana State Prison can effectuate the compelling interests of prison safety, safety of guards, safety of other inmates. [00:22:40] Speaker 01: I'll begin with the substantial burden. [00:22:42] Speaker 01: This court has recently stated in Jones that a substantial burden occurs when a prison policy places substantial pressure on an adherent to change their behavior and to violate their beliefs. [00:22:57] Speaker 01: And that second part, I believe, is the most important part for distinction between [00:23:03] Speaker 01: in our loop of violation type policy and the clear conduct policy. [00:23:06] Speaker 01: What the clear conduct policy requires is that an inmate have six months of clear conduct to engage in some activities. [00:23:14] Speaker 01: Clear conduct is general rules of the prison, general rules of behavior. [00:23:19] Speaker 01: In cases like Jones, cases like War Soldier, cases like Holt that we've been talking a bit about here today, the policies at issue in those cases were [00:23:32] Speaker 01: They required prisoners to... [00:23:37] Speaker 01: fundamentally violate their religious tenets. [00:23:40] Speaker 01: So war soldier involved hair length. [00:23:43] Speaker 01: It was a hair length restriction required the prisoner there to trim his hair. [00:23:47] Speaker 01: Holt, similarly, was a facial hair restriction, required inmates to shave their beard to a certain length in violation of their very specific religious practices. [00:23:59] Speaker 01: The clear conduct policy prohibits things like [00:24:03] Speaker 01: assaulting other inmates, prohibits things like theft, like dubious behavior. [00:24:09] Speaker 01: It is general rules of the prison and nothing in the clear conduct policy would require Mr. Whitford to violate his religious beliefs if he were to follow it. [00:24:19] Speaker 01: Nothing in that policy requires him to do or not do anything to go against his religion. [00:24:27] Speaker 01: In that way, the clear conduct policy is just fundamentally different than most of other policies where this court has found our loop of violations. [00:24:36] Speaker 01: And that's true across the circuits. [00:24:38] Speaker 01: I think a case that was raised in briefing is the Lovelace case. [00:24:43] Speaker 01: And that case, similarly, [00:24:46] Speaker 01: Out of the Fourth Circuit, it involved a restriction on an inmate who wanted to observe fast for Ramadan. [00:24:54] Speaker 01: He broke fast and the prison said, well, you broke fast and so you can't have this special diet anymore. [00:25:00] Speaker 01: So there's a litany of cases in this circuit and others regarding facial hair, [00:25:08] Speaker 01: grooming policies, food policies, and that is the fundamental type of case that brings about in our loop of violation, and it's not present here. [00:25:22] Speaker 01: I'd briefly say, of course, that there are some cases [00:25:27] Speaker 01: that I think is referred to in the case law as an outright ban. [00:25:32] Speaker 01: And the district court here found that there was possibly an outright ban on Mr. Whitford's ability to participate in drum practice group. [00:25:44] Speaker 01: Generally, the outright ban type cases are also different than the clear conduct policy in that there's not a time limit set. [00:25:51] Speaker 01: The outright ban in the case of [00:25:57] Speaker 01: I'm sorry, I'm blanking on the case, but it's in the briefing. [00:25:59] Speaker 01: It involves full restrictions on maximum security prisoners. [00:26:04] Speaker 01: You're a maximum security prisoner, you can't take part in these activities at all. [00:26:09] Speaker 01: The clear conduct policy is just fundamentally different than that. [00:26:13] Speaker 01: Montana State Prison allows inmates in restricted housing, what would commonly be referred to as maximum security, to participate in these activities. [00:26:24] Speaker 01: The clear conduct policy only requires that they follow prison rules for at least six months without infraction. [00:26:32] Speaker 01: Judge Talman, I'd like to just on that point briefly mention something you had said that perhaps some of Mr. Whitford's violations were nominal rules violations. [00:26:45] Speaker 01: And in the record of this case, [00:26:50] Speaker 01: is the Montana State prisons infractions list, the minor and major infractions. [00:26:56] Speaker 01: Even for minor infractions, things like not showing up for work on time, I guess you could say fraternizing type things. [00:27:06] Speaker 01: In the context of the prison, in the context of needing to trust inmates to behave themselves when they're not being supervised, even a nominal infraction, something that we might think of as innocuous in normal life, can indicate very serious consequences in prison. [00:27:25] Speaker 01: One of the things that Mr. Whitford has been infracted for was conspiracy to assault guards. [00:27:33] Speaker 01: not showing up where you're supposed to be on time, talking to people you're not supposed to be talking to, that is very different in the prison context than it is in the real world. [00:27:42] Speaker 01: That goes, I think, also to what the district court found was important in this case, and that is deferring to prison officials, giving prison officials a wide bit of deference when they're determining policies for behavior and when something is appropriate. [00:28:00] Speaker 04: Well, I'm not sure I'm understanding your argument. [00:28:03] Speaker 04: Are you saying that so long as the policy relates to prison discipline, that the prison can do whatever it wants in saying that an inmate cannot engage in any religious observances? [00:28:22] Speaker 01: I'm not, Your Honor. [00:28:23] Speaker 04: Well, what are you saying? [00:28:25] Speaker 01: What I am saying is that [00:28:28] Speaker 01: this court's precedence, there is a fundamental difference in sort of policies that have been found to be violent of our lupa. [00:28:37] Speaker 01: And I think that's laid out pretty well in Jones when the court said that a policy violates our lupa when it requires an adherent to do or not do a thing that is fundamental to their religious belief and would force them to violate their religious belief. [00:28:53] Speaker 01: Here, Mr. Whitford [00:28:55] Speaker 01: has not alleged that anything in the clear conduct policy forces him to do a thing or to not do a thing that would be violative of his religious belief. [00:29:04] Speaker 04: But it's preventing him from engaging in activities that he says are fundamental to his religious beliefs. [00:29:12] Speaker 01: I think that that's right. [00:29:14] Speaker 01: And I think that, well, that's definitely right. [00:29:17] Speaker 01: That's correct. [00:29:18] Speaker 01: And the state would concede that that's correct. [00:29:22] Speaker 04: But I think that... You say that that's outside of the lupa somehow? [00:29:26] Speaker 01: I think that that is not how this court talked about what a substantial burden is in Jones and that's why I highlight the second part of the way this court defines substantial burden in Jones because in Jones it said a policy will be a substantial burden if it forces an adherent to do a thing and violate their beliefs. [00:29:44] Speaker 01: Nothing in the clear conduct policy [00:29:47] Speaker 01: touches on that second part, which is an important part, we believe, because that really gets at the core of how the policy interacts with the religious beliefs. [00:30:03] Speaker 01: To my second point, we're the court to find that one or more of Mr. Whitford's religious beliefs are substantially burdened by the clear conduct policy. [00:30:13] Speaker 01: The court should nonetheless affirm, because as the district court found, the clear conduct policy is the least restrictive means by which it can achieve the compelling interests of prison safety. [00:30:24] Speaker 04: The district court discussed that? [00:30:27] Speaker 01: I think it. [00:30:29] Speaker 01: So which part, Your Honor? [00:30:31] Speaker 04: Whether it was the least restrictive means. [00:30:34] Speaker 01: It did. [00:30:34] Speaker 01: And certainly not as in depth as maybe in other cases or as other parts of this, but it did. [00:30:45] Speaker 04: Well, he says there are other prisons where they don't have these restrictions at all. [00:30:50] Speaker 04: And the district court didn't discuss that at all. [00:30:52] Speaker 04: Now, why isn't that a problem? [00:30:54] Speaker 01: I believe that the district court did discuss that with regards to the [00:30:59] Speaker 01: If I'm recalling correctly, I believe the district court discussed that portion with regards to his ability to have a personal pipe, which is not an issue with this case anymore. [00:31:08] Speaker 01: I think that as Ms. [00:31:13] Speaker 01: Montez discussed, the district court did consider, and Montana State Prison, there's testimony in the record regarding some of these other issues like [00:31:25] Speaker 01: the ability to participate in drum practice group. [00:31:30] Speaker 01: And the heightened security risks that come along with that at Montana State Prison's interest in separating high side, low side inmates at all times. [00:31:44] Speaker 01: And I think that the District Court certainly gave broad deference to Montana State Prison's reasonings here. [00:31:52] Speaker 01: But there was testimony in the record about why Montana state prisons feels Mr. Whitford is a particular security risk, why the clear conduct policy is necessary. [00:32:00] Speaker 01: And I'm taken to understand that Washington doesn't require anything like the clear conduct policy. [00:32:08] Speaker 01: And that's how Montana used to be. [00:32:10] Speaker 01: And there's testimony in the record about that. [00:32:12] Speaker 01: I believe that comes from the affidavit of Terry Stefano. [00:32:17] Speaker 01: That wasn't working in Montana. [00:32:19] Speaker 01: That led to, [00:32:22] Speaker 01: the types of behaviors that are trying to be prevented by the Clear Conduct Policy. [00:32:27] Speaker 01: Things like gang-related activity, things like assaults, things like theft, contraband transfers at these outdoor activities that involve a lot of inmates in one place at one time. [00:32:39] Speaker 01: And so Montana was, as Washington has been described here today, and it didn't work. [00:32:45] Speaker 01: And so in response to that, Montana adopted the Clear Conduct Policy. [00:32:51] Speaker 01: The state would agree that there's not a lot of evidence in the record that a specific policy like Washington was considered and rejected. [00:32:59] Speaker 01: But it's implicit in sort of how this policy came to be. [00:33:02] Speaker 01: And I think the district court picked up on that when it said that this justification and the policy passes muster here. [00:33:14] Speaker 01: I'd briefly just like to clear up. [00:33:16] Speaker 01: I think there is testimony in the record, and this, I believe, is from the affidavit of Miss Reich, that when the drum practice group, sweat lodge set up, pipe set up, those are different activities than the actual, not the actual, because we would concede that they are all part of the religious activities, but the ceremony itself. [00:33:45] Speaker 01: When inmates are setting up the tent, there's not as many guards there. [00:33:50] Speaker 01: They are less observed. [00:33:52] Speaker 01: They have to work together outside of the presence of restrictions like guards. [00:33:57] Speaker 01: The prison has found that those settings in particular are opportunities for misbehavior. [00:34:03] Speaker 01: And so they need to know that they can trust the inmates who are participating in those activities. [00:34:10] Speaker 01: If there's no other questions from the court, I would ask the court, affirm the district court. [00:34:14] Speaker 01: Thank you for your time. [00:34:15] Speaker 03: Thank you, counsel. [00:34:26] Speaker 00: So I just quickly want to address a few things mentioned by my friend on the other side and want to clarify the definition of the substantial burden under the RLUPA analysis. [00:34:39] Speaker 00: And that definition comes from Johnson v. Baker, a decision by this circuit. [00:34:45] Speaker 00: that held that the substantial burden is defined by a substantial delay, a prohibition on practicing that religious right, or uncertainty to practice. [00:34:57] Speaker 00: And so it's not in this restricted way that the defendants are trying to frame a substantial burden. [00:35:03] Speaker 00: And any way that you look at it, even if you look at it as a six-month delay, case law in the circuit, for example, in Rogers v. Gerbino held that even a 10-day delay [00:35:12] Speaker 00: is enough of a substantial burden on someone's religious practices. [00:35:16] Speaker 00: So six months. [00:35:17] Speaker 02: The court engages in a balancing, correct, of whether or not the state has a compelling interest to justify the substantial burden and hear the state proffered security concerns which the district court credited as the justification for the clear conduct policy to prevent the kinds of evils that your opponent was reciting to us. [00:35:41] Speaker 00: Yes, it is a balancing consideration. [00:35:44] Speaker 00: But I want to stress that the case law in this circuit and in sister circuits have held pretty unanimously that even when individuals have heightened security levels or disciplinary issues, that it's not a sufficient reason to deny religious rights. [00:36:00] Speaker 00: We see that in Green v. Solano County in this circuit, in Green Hill v. Clark in the Fourth Circuit, Lovelace v. Lee, which my friend on the other side mentioned. [00:36:10] Speaker 00: failed to mention that they held there that there was a substantial burden based on the disciplinary that was received. [00:36:15] Speaker 02: But this does strike me as being different from the typical cases that we see here, the hair cutting, the kosher foods, the anointing of the sacred oils. [00:36:27] Speaker 02: That seems to me to be something that can be reasonably accommodated. [00:36:31] Speaker 02: But here he's asking essentially for more freedom than he gets on the high security side in circumstances where there are more opportunities for misconduct because there are fewer correctional officers and the inmates are working in areas that are not as well surveilled as other parts of the prison. [00:36:51] Speaker 02: Why is that not a countervailing, compelling interest to outweigh the substantial burden? [00:36:58] Speaker 00: Well, in all of these cases that I mentioned in Green, Green Hell, Lovelace, they were all situations where, especially in Green, where there was a maximum security prisoner who, because of his underlying criminal conviction, the defendants tried to assert that he was a danger to be around other people, as well as because everyone on that unit was in maximum security. [00:37:20] Speaker 00: and there the court held that even though that could have been a compelling interest there were still the lesser restrictive means to achieve that compelling interest and that's again where there's a fundamental error here because the defendants did not consider. [00:37:34] Speaker 02: But is that a factual error by the district court to which we apply the clear error standard or a mixed question of law and fact or a pure question of law? [00:37:45] Speaker 00: I think that, well, the district court didn't make a finding on these last two prongs for the three practices that they granted summary judgment on the substantial burden prong. [00:37:57] Speaker 00: So the district court could undergo an analysis there in terms of a dispute of fact. [00:38:02] Speaker 00: But because the defendants, they had ample time to address the alternatives and they just did not address it at all, then it could just be a law as applied to the facts that are given it. [00:38:15] Speaker 00: And so, again, my friend on the other side mentioned that there was evidence on the record that Montana State used to be like the Washington Department of Corrections. [00:38:29] Speaker 00: I don't believe that that was actually in the record. [00:38:32] Speaker 00: I think that the defendants in their affidavit said that they are generally concerned about the general concerns of most prisons, which is that there could be assaults, [00:38:44] Speaker 00: trafficking of drugs and those kinds of things, but just generally asserting those security interests is not enough under a lupa standard. [00:38:51] Speaker 02: An affidavit that addresses specifically Mr. Whitford and why they're concerned about giving him more freedom than he otherwise gets. [00:39:01] Speaker 02: And there is a pretty hefty record there of very serious misconduct up to and including murder. [00:39:09] Speaker 00: And again, I'll just refer back to those cases that is very clearly established across the circuits that even in those situations where there are those concerns, even given that compelling interest that they might have, they still have to show that they considered the lesser restrictive means. [00:39:27] Speaker 00: And they just did not do that. [00:39:29] Speaker 00: They did not mention the Washington Department of Corrections at all and engage in that analysis about what. [00:39:35] Speaker 02: That would be a more general evaluation, would it not? [00:39:39] Speaker 02: because it would be a prison-wide policy in Washington. [00:39:43] Speaker 02: Here, they're laser focused on one inmate and whether or not the clear conduct policy is the least restrictive means to accommodate the legitimate concerns for security. [00:39:58] Speaker 00: Right. [00:39:59] Speaker 00: And they didn't consider any alternative whatsoever. [00:40:01] Speaker 00: They didn't even consider some of the common sense considerations of if there's a serious disciplinary issue that comes up, perhaps this amount of time period is necessary. [00:40:12] Speaker 00: But what if there is? [00:40:13] Speaker 02: What more does the state need to show? [00:40:16] Speaker 02: 181 violations, stabbing of inmates, assaults on correctional officers. [00:40:21] Speaker 02: He's doing 60 years for a murder outside the prison. [00:40:26] Speaker 02: I mean, this is a really difficult inmate to house. [00:40:31] Speaker 00: The case law is clear that at the very least, the defendants are required to show that they considered any less restrictive means that they knew of throughout the proceedings. [00:40:41] Speaker 00: And so at the very least, they should have considered what Mr. Whitford presented and shown that that was not possible. [00:40:48] Speaker 00: And so for these reasons, we request the court to reverse the district court's holding and grants summary judgment in favor of Mr. Whitford. [00:40:58] Speaker 03: All right, thank you both for your briefing and argument in this case. [00:41:02] Speaker 03: I especially want to thank Ms. [00:41:03] Speaker 03: Montes and Ms. [00:41:04] Speaker 03: Novak. [00:41:05] Speaker 03: Thank you very much for representing people like this in this case. [00:41:09] Speaker 03: You're not doing it for the money. [00:41:10] Speaker 03: So I appreciate your stepping up. [00:41:13] Speaker 03: And with that, this matter is submitted, and we're done for today. [00:41:15] Speaker 03: And we'll be back tomorrow at 9 o'clock. [00:41:17] Speaker 03: Right, Kathy? [00:41:19] Speaker 04: All rise.