Rich v. Woodford

• Decision Date: 07 April 2000
• Docket Number: No. 00-99004,00-99004
• Citation: 210 F.3d 961
• Parties: (9th Cir. 2000) DARRELL KEITH RICH, aka DARRELL EDWARD YOUNG ELK, HENRY ADAMS, and LEONARD FORSTER,Plaintiffs-Appellants, v. Northern District of JEANNE WOODFORD, Acting California Warden of the California, San Francisco State Prison at San Quentin; CALIFORNIA DEPARTMENT OF DISSENTS FROM CORRECTIONS, C.A. ("CAL") DENIAL OF TERHUNE, Director of the REHEARING EN BANC California Department of Corrections,Defendants-Appellees. Filed
• Court: U.S. Court of Appeals — Ninth Circuit

Page 961

210 F.3d 961 (9th Cir. 2000)

DARRELL KEITH RICH, aka DARRELL EDWARD YOUNG ELK, HENRY ADAMS, and LEONARD FORSTER,Plaintiffs-Appellants, v. Northern District of JEANNE WOODFORD, Acting California Warden of the California, San Francisco State Prison at San Quentin; CALIFORNIA DEPARTMENT OF DISSENTS FROM CORRECTIONS, C.A. ("CAL") DENIAL OF TERHUNE, Director of the REHEARING EN BANC California Department of Corrections,Defendants-Appellees.

No. 00-99004

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Filed April 7, 2000

COUNSEL: Clyde M. Blackmon, Hill C. Snellings, Karen L. Hamilton, Blackmon & Snellings, Sacramento, California; and James S. Thomson and Saor R. Stetler, Berkeley, California, for the plaintiffs-appellants.

Bill Lockyer, Attorney General, and David P. Druliner, Paul D. Gifford, Morris Lenk, and Danette Valdez, Deputy Attorneys General, San Francisco and Sacramento, California, for the defendants-appellees.

Dissent by Judge Reinhardt; Dissent by Judge Kozinski; Dissent by Judge Wardlaw

Rehearing en banc denied.

REINHARDT, Circuit Judge, with whom PREGERSON, KOZINSKI, and WARDLAW, Circuit Judges, join:

Because I believe that neither the Constitution nor human decency permits us to deny a condemned man his last rites based on the implausible security concerns advanced by the state, I dissent from the refusal to rehear this case en banc.

Shortly after midnight on March 15, 2000, officials from the California Department of Corrections (CDC) executed Darrell Keith Rich at San Quentin State Prison. On March 8th, Rich had filed an action under 42 U.S.C. S 1983 seeking to take part in a sweat lodge ceremony prior to his execution.¹ Rich, a Native American man, believed that by purifying his body, mind, and soul, this ceremony would allow him to make amends for the people he harmed on earth and would prepare him to cross over from this world to the next. It was the equivalent to him of other religions' last rites.

On March 13th, the district court denied Rich's request. A panel of this court affirmed the denial the following day. A sua sponte call for an en banc vote was made, but a majority of the active judges voted to deny a hearing. The Supreme Court likewise refused to intervene. It is from our refusal to hear this religious liberty issue en banc that I now file this dissent.

The sweat lodge ceremony is a central part of Native American religion. An authoritative treatise describes it as follows:

This ceremony is nearly universal among American Indian tribes, from coast to coast and in Alaska, across Canada and Mexico today. A sweat bath is one of the main ways by which ritual purification is achieved. . . . The sweat lodge ceremony serves sev eral purposes. It is a religious rite to purify the body and a medical treatment to cure ailments or to pre vent ill health by influencing the spirits. . . . The sweat bath ceremony is such a central part of the religious beliefs and rites of tribes that it is incon ceivable that an Indian could practice his religious life in the traditional Indian way without having access to a sweat lodge. . . .

Arlene B. Hirschfelder & Paulette Morin, The Encyclopedia of Native American Religions 287 (1992). See also Werner v. McCotter, 49 F.3d 1476, 1480 (10th Cir. 1995) (taking judicial notice of "the central and fundamental role played by the Sacred Sweat Lodge in many Native American religions"); Allen v. Toombs, 827 F.2d 563, 565 n. 5 (9th Cir. 1987) (describing sweat lodge ceremony at Oregon penitentiary). There is a sweat lodge located on the lower yard in the general population area at San Quentin, and it is regularly used by San Quentin's Native American inmates. Rich made a credible showing before the district court that he follows Native American religion and that sweat lodge purification is fundamental to his sincerely held beliefs.² Indeed, over the last ten years Rich repeatedly pursued administrative remedies at San Quentin Prison to record formally his religious identity and exercise his Native American beliefs. In its brief to this court, however, the state exhibited a bizarre attitude toward the subject of religion in general and Native Americans' beliefs in particular. The California Attorney General's office argued that the religious beliefs the condemned man adhered to were "incapable of either proof or refutation," and "secular authorities, such as the prison Warden, cannot be required, on faith, to accept risks to prison security and the personal safety of others, in order to satisfy these kinds of belief" (emphasis added). ³ One wonders whether the Attorney General would make the "incapable of proof or refutation" argument regarding the last rites of major religions. After all, no religious beliefs of which I am aware are susceptible of objective proof or refutation. One also wonders, of course, what "these kinds of belief" implies with respect to the particular religious practices of Native Americans.

The issue, in the end, was whether prison officials should have accommodated Rich's request to participate in a preexecution sweat lodge ceremony under the reasonableness test of Turner v. Safley, 482 U.S. 78 (1987), and O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987). This test does not "obviate the need for accommodation. Reasonableness in this context refers not only to the relation between the goals of a regulation and its means, but also to the balance struck between the needs of the prison administrators and the constitutional rights of prisoners." Salaam v. Lockhart, 905 F.2d 1168, 1171 n.6 (8th Cir. 1990) (citing Reed v. Faulkner, 842 F.2d 960, 962 (7th Cir. 1988)).⁴

Officials at San Quentin denied Rich's request on the ground that, as a death row inmate, he was designated as "Maximum A" custody. A CDC regulation requires that all inmates with that custody level -the most restrictive form of long-term confinement at San Quentin -remain under direct and constant supervision and stay within the confines of their housing units. They may not participate in religious ceremonies that require removal from those units. The district court found there was a valid and rational connection between this regulation and the prison officials' interest in maintaining safety and security. See generally Allen v. Toombs, 827 F.2d at 567 (upholding policy excluding inmates in disciplinary segregation unit from participating in sweat lodge ceremony).

This analysis, however, overlooks the extraordinary circumstances of this case and the transparent weakness of the state's purported concerns. Rich's request did not challenge the CDC regulation generally. Rather, he sought a one-time departure from the regulation, based on his impending execution, his specific spiritual beliefs regarding the need for predeath purification through a sweat lodge ceremony, and the availability of a functioning sweat lodge on the grounds of San Quentin State Prison. The officials' general security rationale for their treatment of "Maximum A" inmates did not provide a reasonable basis for denying Rich's specific preexecution request.

The prison officials complained that accommodation of Rich's request would require additional staff resources and heightened security measures to transport him to the sweat lodge. But such additional resources and precautions are always required in the days leading up to executions. Officials are constitutionally obligated to accommodate the condemned prisoner's fundamental religious needs at the same time they make the necessary preparations for his execution.

In a declaration submitted to the district court, Acting Warden Jeanne Woodford maintained that for Rich to participate in the sweat lodge ceremony, officials would have to move him though the general prison population, where Rich would be "at risk of being attacked by unrestrained inmates" unless officials implemented the "extreme measure" of a general lockdown. Implicitly, the state professed grave concern that Rich would be killed before it could execute him. However, the state's protestations lack even the specter of credibility. It conceded at a hearing on March 13th that there would in any event be a lockdown at San Quentin on the following day -the day before Rich's execution. Officials could therefore have escorted Rich to the sweat lodge without any risk of interference by inmates in the general population. Indeed, a news wire reported on the evening of March 14th, not long after the panel voted to affirm the district court's decision, that state officials "said even if they do receive a last minute order to permit the ceremony, it would not delay Rich's execution because San Quentin could swiftly arrange the ritual at its on-site sweat lodge." Michael Kahn, Court Denies Calif. Killer's Sweat Lodge Appeal, Reuters News Service (Mar. 14, 2000).⁵

The prison officials raised a host of additional security concerns regarding the sweat lodge ceremony itself. They argued that weapons could be concealed in the small and dark interior of the lodge. It is undisputed, however, that trained prison guards would have been able to conduct an exhaustive search of the sweat lodge area and strip search Rich and his spiritual advisors prior to the ceremony's commencement. The officials argued that the ceremony would require the removal of Rich's restraints, but Rich conceded that officials could keep him restrained throughout. Prison doctors, it should be noted, classified Rich as "permanently mobility impaired " due to severe arthritis and degenerative disc disease. He could barely walk and had to be transported to visits in a wheelchair. Since approximately 1980, officials at San Quentin have regularly supervised sweat lodge ceremonies for inmates not designated as "Maximum A" custody, apparently without incident. These ceremonies have involved dozens of inmate participants at a time. It is thus clear that San Quentin officials would have been able to maintain complete control...