Hrdlicka v. Reniff

• Decision Date: 01 September 2011
• Docket Number: 09–16956.,Nos. 09–15768,s. 09–15768
• Citation: 2011 Daily Journal D.A.R. 13499,11 Cal. Daily Op. Serv. 11380,656 F.3d 942
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: Ray HRDLICKA, an individual; Crime, Justice & America, Inc., a California corporation, Plaintiffs–Appellants,v.Perry L. RENIFF, in his official capacity of Sheriff of the County of Butte, California, Defendant–Appellee.Ray Hrdlicka, an individual; Crime, Justice & America, Inc., a California corporation, Plaintiffs–Appellants,v.John McGinness, Sacramento County Sheriff, Defendant–Appellee.

656 F.3d 942

11 Cal. Daily Op. Serv. 11,380

2011 Daily Journal D.A.R. 13,499

Ray HRDLICKA, an individual; Crime, Justice & America, Inc., a California corporation, Plaintiffs–Appellants,

v.Perry L. RENIFF, in his official capacity of Sheriff of the County of Butte, California, Defendant–Appellee.Ray Hrdlicka, an individual; Crime, Justice & America, Inc., a California corporation, Plaintiffs–Appellants,

v.John McGinness, Sacramento County Sheriff, Defendant–Appellee.

Nos. 09–15768

09–16956.

United States Court of Appeals, Ninth Circuit.

Sept. 1, 2011.

OPINION TEXT STARTS HEREAndrew Alexander Dosa, Esquire, Law Office of Andrew Dosa, Alameda, CA, Spencer D. Freeman, Freeman Law Firm, Inc., Tacoma, WA, for Plaintiffs–Appellants.Bradley Justin Stephens, Oroville, CA, Paul R. Coble, Esquire, Martin J. Mayer, Jones & Mayer, Fullerton, CA, Amanda Lynn Butts, Esquire, Jeri Lynn Pappone, Longyear, O'Dea & Lavra, LLP, Sacramento, CA, for Defendant–Appellee.D.C. Nos. 2:08–cv–00343–GEB–EFB, 2:08–cv–00394–FCD–EFB.Before: STEPHEN REINHARDT, WILLIAM A. FLETCHER and N. RANDY SMITH, Circuit Judges.Order; Concurrence by Judge REINHARDT and Judge WILLIAM A. FLETCHER; Dissent by Judge O'SCANNLAIN.

ORDER

Judge Reinhardt and Judge W. Fletcher have voted to deny the Appellees' petitions for rehearing and petitions for rehearing en banc, filed on February 15, 2011 and February 23, 2011. Judge N.R. Smith voted to grant both.

A judge of the court called for a vote on the petitions for rehearing en banc. A vote was taken, and a majority of the active judges of the court failed to vote for en banc rehearing. Fed. R.App. P. 35(f).

The petitions for rehearing and the petitions for rehearing en banc are DENIED.

REINHARDT and W. FLETCHER, Circuit Judges, concurring in the denial of rehearing en banc:

The question presented in this case is straightforward: Does the four-factor test of Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), apply to distribution of a magazine to county jail inmates who have not requested it? A majority of the three-judge panel concluded that Turner does apply. An en banc call failed to receive a majority vote of the active judges of our court.

The Turner test evaluates the reasonableness of a prison regulation impinging on a constitutional right. We have applied Turner in a number of cases to evaluate the reasonableness of regulations banning the distribution of mail. In Crofton v. Roe, 170 F.3d 957 (9th Cir.1999), we applied Turner to evaluate a regulation prohibiting an inmate from receiving a gift book from his stepfather. In Prison Legal News v. Cook, 238 F.3d 1145 (9th Cir.2001), we applied Turner to evaluate a regulation banning distribution of bulk-rate mail to which prisoners had subscribed. In Morrison v. Hall, 261 F.3d 896 (9th Cir.2001), we applied Turner to evaluate a regulation banning distribution of “pre-paid, for-profit, subscription publications.” In Prison Legal News v. Lehman, 397 F.3d 692 (9th Cir.2005), we applied Turner to evaluate a regulation banning distribution of requested but “non-subscription bulk mail.”

We concluded that the Turner test applies, as well, to evaluate the reasonableness of regulations banning distribution of an unsolicited magazine, Crime, Justice & America (“CJA”). CJA is of unquestioned value to county jail inmates. Because inmates are typically in county jail for relatively short periods, and because the value of CJA to inmates is greatest when they first arrive in the jail, it is unrealistic to insist, as a condition for applying the Turner test, that inmates have already subscribed to CJA.

We wrote in our opinion, “The fact that in this case the publication was unsolicited may, of course, be taken into account in applying the Turner test. But the fact that the publication was unsolicited does not make the Turner test inapplicable.” Hrdlicka v. Reniff, 631 F.3d 1044, 1051(9th Cir.2011).

O'SCANNLAIN, Circuit Judge, joined by GOULD, TALLMAN, BYBEE, CALLAHAN, BEA, IKUTA and N.R. SMITH Circuit Judges, dissenting from the denial of rehearing en banc:

The court today holds that the First Amendment mandates that county jails distribute unsolicited junk mail to their inmates, or face a burdensome lawsuit from the junk mail publisher, citing Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987).¹ Given that Turner decided only the standard of review to apply when a prison regulation impinges upon inmates' First Amendment rights, id. at 89, 107 S.Ct. 2254, the majority's interpretation is an extraordinary leap since all agree that no inmate rights are at stake in this case. Regrettably, the majority's opinion is completely untethered from Supreme Court precedent and in considerable tension with our own case law. It further complicates the already “inordinately difficult undertaking” of prison administration. Id. at 85, 107 S.Ct. 2254. I respectfully dissent, therefore, from the failure of our court to rehear this case en banc.

I

Ray Hrdlicka publishes a quarterly magazine called Crime, Justice & America (“CJA”) that includes a number of items which may be of interest to jail inmates. Indeed, between 2002 and the publication of the majority's opinion, CJA went through fourteen editions totaling over one million copies. Which is quite impressive, until one realizes that rather than relying on subscriptions, CJA has simply blanketed jailhouses with hundreds of free copies every week.²

CJA's business model is fairly simple. It lures advertisers—usually bail bondsmen and lawyers—with the promise of a captive audience of thousands of inmates in immediate need of their services. It then ensures that it will fulfill that promise by pressuring jail administrators to choose either leaving stacks of CJA in common areas or allowing individual copies of CJA to be mailed directly to inmates off of an inmate roster. Either way, every seven days enough copies arrive at the targeted jails to ensure that at least one out of every ten inmates gets one. Hrdlicka is thereby able to externalize the cost of increasing his readership on the prison system.

Pursuant to content neutral department policies, officials at the Sacramento County and Butte County Jails refused to facilitate Hrdlicka's distribution scheme while allowing Hrdlicka to send CJA to any prisoner who requested it. But in an effort to minimize the risk of smuggled contraband as well as the amount of excess paper inmates could use to do things like start fires or clog toilets, these jail administrators refused to disseminate extra copies to those inmates who had not asked for them.

Hrdlicka filed a suit under 42 U.S.C. § 1983 claiming a constitutional right to pursue his business model. And now this court obliges by discovering such a right in the First Amendment.

II

Challenges to jail or prison regulations limiting outside contact with prisoners undoubtedly involve the balancing of constitutional imperatives. Turner, 482 U.S. at 84, 107 S.Ct. 2254. The majority focuses almost entirely upon those implicated by the First Amendment. But also among them is that running a jail “requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government.” Id. at 84–85, 107 S.Ct. 2254. Therefore the separation of powers “counsel[s] a policy of judicial restraint,” particularly “[w]here a state penal system is involved.” Id.; see also Beard v. Banks, 548 U.S. 521, 528, 126 S.Ct. 2572, 165 L.Ed.2d 697 (2006).

Fundamental to maintaining this balance between a prisoner's right to contact with the outside world and the State's ability to run a functional prison system is the ability to recognize when First Amendment interests are implicated. And regardless of what the majority may have found in the pages of CJA, nothing in the United States Reports or the Federal Reporter gives an outsider a First Amendment interest, let alone a freestanding right, to unsolicited contact with inmates.

The Supreme Court has certainly never found such an interest. See Jones v. N.C. Prisoners' Labor Union, Inc., 433 U.S. 119, 121, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977) (brushing aside a union challenge to a restriction against bulk mail to inmates, as “barely implicat[ing]” First Amendment rights); Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974) (allowing a prohibition on face-to-face interviews with inmates based on “the familiar proposition that lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights” (internal quotation marks omitted)).

Indeed, the only time the Court has ever acknowledged a publisher's “interest in access to prisoners” is when those prisoners “through subscription, willingly seek their point of view.” Thornburgh v. Abbott, 490 U.S. 401, 408, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989). Only then—when jail regulations limit a detainee's access to the outside world—has the Court considered the First Amendment interests of the person with whom the detainee wished to correspond. And, even then, the Court made clear that it was announcing a rule for when the “rights of prisoners and outsiders” are at issue. Id. at 410 n. 9, 109 S.Ct. 1874. Cf. Shaw v. Murphy, 532 U.S. 223, 229–30, 121 S.Ct. 1475, 149 L.Ed.2d 420 (2001) (stating that Turner “adopted a unitary, deferential standard for reviewing prisoners' constitutional claims” (emphasis added)).

Until now, we have scrupulously followed the Supreme Court's direction and recognized the derivative nature of publishers' First Amendment interests in contacting prisoners. See Prison Legal News v. Lehman (PLN II), 397 F.3d 692, 701 (9th Cir.2005) (describing Jones as upholding “a ban on junk mail” and distinguishing a “scenario in which a publisher has [not] attempted to flood a facility with publications sent to all inmates, regardless of whether they requested the publication”); Morrison v. Hall, 261 F.3d 896, 898 (9th...