570 F.3d 798 (7th Cir. 2009), 06-1750, Hammer v. Ashcroft

Docket Nº:06-1750.
Citation:570 F.3d 798
Opinion Judge:EASTERBROOK, Chief Judge.
Party Name:David Paul HAMMER, Plaintiff-Appellant, v. John D. ASHCROFT, et al., Defendants-Appellees.
Attorney:Jerold S. Solovy, Chad E. Bell, Jenner & Block, Chicago, IL, for Plaintiff-Appellant. Edward Himmelfarb, Department of Justice, Washington, DC, for Defendants-Appellees. Lucy A. Dalglish, Gregg P. Leslie, Nathan Winegar, Kevin M. Goldberg, Fletcher, Heald & Hildreth, Arlington, VA, Stephen A. Key...
Judge Panel:Before EASTERBROOK, Chief Judge, and BAUER, POSNER, KANNE, ROVNER, WOOD, EVANS, and SYKES, Circuit Judges.[
Case Date:June 25, 2009
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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570 F.3d 798 (7th Cir. 2009)

David Paul HAMMER, Plaintiff-Appellant,


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

No. 06-1750.

United States Court of Appeals, Seventh Circuit.

June 25, 2009

Argued Sept. 10, 2008.

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

Edward Himmelfarb, Department of Justice, Washington, DC, for Defendants-Appellees.

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

Before EASTERBROOK, Chief Judge, and BAUER, POSNER, KANNE, ROVNER, WOOD, EVANS, and SYKES, Circuit Judges.[†]


" [N]ewsmen have no constitutional right of access to prisons or their inmates beyond that afforded to the general public." Pell v. Procunier, 417 U.S. 817, 834 (1974). The Supreme Court applied that principle in Saxbe v. Washington Post Co., 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514 (1974), when holding that the Federal Bureau of Prisons did not violate the Constitution by preventing face-to-face interviews between reporters and inmates.

In the years after Washington Post the Bureau authorized some in-prison interviews. By the late 1990s reporters could talk to prisoners throughout the federal system. See Program Statement 1480.05 (News Media Contacts) (promulgated Sept. 21, 2000, and in force since). That changed in 2001, however, for inmates housed in some of the Bureau's most-secure locations-including the " Special Confinement Unit" at the prison in Terre Haute, Indiana, which houses most federal prisoners under sentence of death, plus some others in administrative detention for disciplinary or security reasons.

Program statements generally applicable to federal prisons may be modified by institution-specific supplements. See Program Statement 1480.05(13) (applying this exception-making power to media contacts in particular). The Warden of Terre Haute proposed, and the Bureau's Director approved, Institution Supplement THA 1480.05A, which bans person-to-person meetings between reporters and inmates of the Special Confinement Unit,

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though it allows phone calls and correspondence. (The current revision, THA 1480.05B, contains the same rule; for simplicity we refer only to THA 1480.05A.) Phone calls with reporters are subject to Program Statement 1480.05(7)(d), which provides that " [a] representative of the news media may not obtain and use personal information from one inmate about another inmate who refuses to be interviewed." Correspondence is unlimited; an inmate's letters to reporters are not subject to inspection or censorship. " All properly identified and labeled correspondence from an inmate who is not on restricted mail status to qualifying representatives of the news media shall be sealed and forwarded without inspection, directly and promptly." Program Statement 5265.11(17)(a) (July 9, 1999).

David Paul Hammer, who was sentenced to death for killing another federal prisoner, contends in this suit under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), that he is entitled to money damages from former Attorney General Ashcroft and other public officials who drafted or approved THA 1480.05A. Relying on Pell and Washington Post, the district court granted summary judgment for the defendants. 2006 WL 456177, 2006 U.S. Dist. LEXIS 9306 (S.D.Ind. Feb. 23, 2006). A panel of this court reversed, 512 F.3d 961 (7th Cir.2008), and that decision was vacated in turn by the order granting defendants' petition for rehearing en banc.

Hammer's attempt to obtain damages has complicated matters. The validity of federal administrative rules usually is resolved in actions under the Administrative Procedure Act seeking prospective relief, not in suits for money against officials whose positions and roles generally entitle them to qualified if not absolute immunity. A district judge held the policy valid, after all. Although the panel thought that, on an enlarged record, Hammer might yet prevail, " [i]f judges ... disagree on a constitutional question, it is unfair to subject [public officials] to money damages for picking the losing side of the controversy." Wilson v. Layne, 526 U.S. 603, 618, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). Accord, Pearson v. Callahan, __ U.S. __, 129 S.Ct. 808, 823, 172 L.Ed.2d 565 (2009). Indeed, a Bivens action is improper when statutes specify how administrative deeds are reviewed. See Wilkie v. Robbins, 551 U.S. 537, 127 S.Ct. 2588, 2597-2605, 168 L.Ed.2d 389 (2007). But because we agree with the district court that THA 1480.05A is valid, we sidestep the complications introduced by Hammer's quest for damages. (Hammer's death sentence was set aside in 2005, United States v. Hammer, 404 F.Supp.2d 676 (M.D.Pa.2005), but he remains in the Special Confinement Unit pending appeal, now under advisement in the Third Circuit, and so has an ongoing interest in the rule's constitutionality. His other sentences exceed 1,200 years' imprisonment, so release is not imminent.)

Pell v. Procunier and Saxbe v. Washington Post establish that the Bureau of Prisons could enforce a system-wide rule against personal or video interviews between prisoners and reporters. Hammer contends, however, that by curtailing press access to some prisoners but not others, the Bureau offends the equal-protection component of the due process clause in the Constitution's fifth amendment. Yet it is hard to understand why all prisoners should be treated the same. Some are in minimum-security prisons and others in more secure confinement; no one thinks these differences unconstitutional. The Justices observed in Pell and Washington Post that the principal reason for limiting press contacts is the maintenance of security; this implies that the greater the need for security at a given prison (or

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unit within a prison), the easier it is to justify limits on meetings between reporters and prisoners. By the time the Court decided Washington Post, the Bureau of Prisons had begun to allow reporters to interview inmates of minimum-security prisons. See 417 U.S. at 844 & n. 2, 94 S.Ct. 2811. The Justices did not perceive any problem in this distinction. It is easier to justify limiting press contacts at the few places holding the most incorrigible prisoners (USP Florence and the Special Confinement Unit at Terre Haute) than at all medium- and maximum-security prisons.

Hammer's argument amounts to a contention that, once a prison system starts to allow access more liberally, it must go all the way; any intermediate position violates equal-protection principles. That understanding is inconsistent with many established doctrines. For example, thirty years ago a court held that Congress had violated equal-protection limits by subjecting members of the diplomatic service, but not other federal workers, to mandatory retirement. The Justices held, however, that it is possible to draw such lines as long as a rational basis for them may be imagined; the basis need not be supported in the record. Vance v. Bradley, 440 U.S. 93, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979). Just as it was possible to imagine a rational basis for distinguishing diplomats from postal carriers, so it is possible to imagine a rational basis for distinguishing the nation's most secure institutions from others. Indeed, to state the distinction is to furnish the justification: security.

The security justification that carried the day in Pell and Washington Post was that interviews with the press make celebrities of some inmates. This increases tensions within prisons (those who don't receive public attention may react with envy); and if some inmates use the press to disparage others (or their beliefs, or the organizations to which they belong), the tensions will be greater. More: the interviewed prisoners get swelled heads and " tend to become the source of substantial disciplinary problems that can engulf a large portion of the population at a prison." Washington Post, 417 U.S. at 848-49, 94 S.Ct. 2811. Prisons for tax evaders and credit-card forgers may tolerate such tensions; prisons for killers are more explosive, and the need to prevent lighting the fuse to the powder keg is compelling.

Hammer maintains that prisons must use the least-restrictive available options and that the Bureau's experience since Washington Post shows that the risks associated with interviews are manageable. This line of argument marks a transition from equal protection to the first amendment, for it incorporates elements of both bodies of doctrine. But this, too, is a tired theme. It has been made in several cases dealing with press interviews and correspondence among prisoners, and the Justices have rejected it. See, e.g., Thornburgh v. Abbott, 490 U.S. 401, 409-14, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989); cf. Shaw v. Murphy, 532 U.S. 223, 121 S.Ct. 1475, 149 L.Ed.2d 420 (2001). The question is not whether prisons could find ways to accommodate one or another change. It is whether the rule that the prison chooses to implement is " reasonably related to legitimate security interests." Turner v. Safley, 482 U.S. 78, 91, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). And the Court has held in Pell and Washington Post that a no-interview policy is " reasonably related to legitimate security interests." The Justices added that an attempt to be " less restrictive" by making individual decisions could undermine security: " such a selective policy would spawn serious discipline and morale problems of its own by engendering hostility and resentment among inmates who were refused interview privileges granted

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to their fellows." ...

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