512 F.3d 961 (7th Cir. 2008), 06-1750, Hammer v. Ashcroft

Docket Nº:06-1750.
Citation:512 F.3d 961
Party Name:David Paul HAMMER, Plaintiff-Appellant, v. John D. ASHCROFT, et al., Defendants-Appellees.
Case Date:January 15, 2008
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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512 F.3d 961 (7th Cir. 2008)

David Paul HAMMER, Plaintiff-Appellant,


John D. ASHCROFT, et al., Defendants-Appellees.

No. 06-1750.

United States Court of Appeals, Seventh Circuit.

Jan. 15, 2008

         Argued Nov. 26, 2007.

         Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP 01-558-C-T/G-John Daniel Tinder, Judge.

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         Jerold S. Solovy, Chad E. Bell (argued), Jenner & Block, Chicago, IL, for Plaintiff-Appellant.

         Edward Himmelfarb (argued), Department of Justice Civil Division, Appellate Section, Washington, DC, for Defendants-Appellees.

         Lucy A. Dalglish, Gregg P. Leslie, Nathan Winegar, Arlington, VA, Stephen A. Key, Hoosier State Press Association, Indianapolis, IN, Kevin M. Goldberg, Fletcher, Heald & Hildreth, Arlington, VA, Bruce W. Sanford, Bruce D. Brown, Laurie A. Babinski, Baker & Hostetler, Kathleen A. Kirby, Wiley Rein, Washington, DC, Amicus Curiae.

         Before BAUER, ROVNER, and WOOD, Circuit Judges.

         ROVNER, Circuit Judge.

         David Hammer, a federal prisoner on death row, sued various Bureau of Prisons ("BOP") officials alleging that they violated his First Amendment and equal protection rights by implementing and enforcing a policy that prevents him from giving face-to-face interviews with the media and from talking with the media about other inmates. The current defendants--the former Attorney General of the United States, John Ashcroft; a former BOP Director, Kathleen Hawk-Sawyer; and former wardens of the federal prison in Terre Haute, Indiana, Harley Lappin and Keith Olson--moved for summary judgment, arguing that the challenged policy is rationally related to legitimate penological interests. The district court granted the defendants' motion, and Hammer appeals. Because we conclude that Hammer raised a genuine issue of fact as to whether the defendants' proffered justification for the policy banning face-to-face interviews is pretextual, we reverse and remand.

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         I. Background

         In July 1999 the BOP opened the Special Confinement Unit ("SCU") at the federal prison in Terre Haute, Indiana, to house male inmates sentenced to death by the federal courts. The SCU also houses inmates who are not under a death sentence, but who are considered to be on "administrative detention status." Hammer--who was under a federal death sentence for killing his cellmate--was among the first inmates transferred to the SCU.1

         Between August and December 1999, Hammer gave three face-to-face interviews with members of the media in the SCU's non-contact visiting area. No security problems arose as a result of these interviews. But in late December 2000, Lappin ordered Hammer not to provide information to members of the media about other inmates. When Hammer asked Lappin for clarification, he stated that Hammer was "prohibited from disclosing to a media representative any information about another inmate through any manner of communication (oral, written, etc.)." Just over a month later, the BOP disciplined Hammer for providing information about a fellow death row inmate to a reporter. Lappin did not, however, generally prohibit Hammer from giving face-to-face interviews.

         That situation changed a few months later. In March 2000, CBS aired a national broadcast of "60 Minutes" featuring an interview with Timothy McVeigh. At that time McVeigh was housed at the SCU awaiting execution for his role in the 1995 bombing of the Alfred P. Murrah federal building in Oklahoma City. Following this interview, U.S. Senator Byron Dorgan wrote to BOP Director Hawk-Sawyer on March 14, 2000, criticizing the BOP for allowing the McVeigh interview and demanding that the BOP prohibit similar interviews with other death row inmates. The published account of this criticism described Dorgan's view of the value of such interviews:

The American people have a right to expect that the incarceration of a convicted killer will not only remove him physically from society, but will also prevent him from further intrusion in our lives through television interviews and from using those forums to advance his agenda of violence.

         Soon thereafter Lappin (then the SCU warden) denied every media request for a face-to-face interview with Hammer. When Hammer filed an administrative grievance to protest these denials, Lappin informed him that the procedures for granting interviews "have evolved" since the SCU opened and that requests for in-person media interviews are evaluated on "a case-by-case basis."

         The policy on face-to-face interviews evolved further one month later. On April 12, 2001, Ashcroft and Hawk-Sawyer gave a press conference during which they announced a change from the case-by-case policy to a blanket policy preventing SCU inmates from having face-to-face interviews with members of the media on any subject at any time. The policy allows SCU inmates to speak to the media only by telephone during their ordinary 15-minute daily allotment of telephone time. In announcing this policy, Ashcroft explained

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that it is designed to prevent murderers from, in his view, altering our culture by glamorizing violence:

I am aware that several media outlets have requested access to interview inmate McVeigh. As an American who cares about our culture, I want to restrict a mass murderer's access to the public podium. On an issue of particular importance to me as Attorney General of the United States, I do not want anyone to be able to purchase access to the podium of America with the blood of 168 innocent victims.

I'm concerned about irresponsible glamorization of a culture of violence, and that concern has shaped our approach to these issues profoundly.

         Hawk-Sawyer announced that the 15-minute telephone limitation "will become the policy for the [SCU] in general."

         Three days after the press conference, Lappin signed Institution Supplement 1480.05A ("the media policy"), which states that "[t]o maintain safety, security and the good order of the SCU, in-person interviews (including video-recorded interviews) will not be permitted." To gain permission for a 15-minute telephone interview under the new media policy, members of the press must agree that they will not ask an SCU inmate any questions about other federal or...

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