Owens v. Kelley

• Decision Date: 05 August 1982
• Docket Number: No. 80-9010,80-9010
• Citation: 681 F.2d 1362
• Parties: Michael Stevens OWENS, Plaintiff-Appellant v. Asa D. KELLEY, Jr., etc. et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1362

681 F.2d 1362

Michael Stevens OWENS, Plaintiff-Appellant v. Asa D. KELLEY, Jr., etc. et al., Defendants-Appellees.

No. 80-9010.

United States Court of Appeals, Eleventh Circuit.

Aug. 5, 1982.

James Finkelstein, Albany, Ga., for plaintiff-appellant.

Douglas Bruce Brown, Atlanta, Ga., for amicus curiae American Civ. Liberties Union Foundation of Ga., Inc.

Daniel MacDougald, III, Albany, Ga., John W. Dunsmore, Jr., Mary Beth Westmoreland, Atlanta, Ga., C. Nathan Davis, Albany, Ga., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Georgia.

Before MORGAN, HILL and KRAVITCH, Circuit Judges.

JAMES C. HILL, Circuit Judge:

This case arose when Michael Owens brought an action under 42 U.S.C. § 1983 against various defendants challenging the constitutionality of certain conditions of probation placed upon him by Judge Asa Kelley of the Superior Court of Dougherty County, Georgia. ¹ The District Court denied Owens' motion for summary judgment and granted the motion for summary judgment filed by the defendants. Owens now appeals the ruling of the District Court.

The probation requirements imposed by Judge Kelley did not merely consist of perfunctory reports; instead, the conditions were obviously fashioned for the purpose of making probation a meaningful rehabilitative experience for the appellant. Pursuing such imaginative approaches is commendable. Nevertheless, all such efforts must be carefully fashioned so that they do not violate the constitutional rights of the probationer. With this in mind, we turn to the specifics of Owens' appeal.

Background

In September 1978 Owens pleaded guilty in Dougherty County Superior Court to two violations of the Georgia Controlled Substances Act. Judge Kelley placed Owens on probation for a period of fifteen years and imposed a number of conditions of probation. Owens' § 1983 suit challenges three of these conditions. First Owens attacks the condition which requires him to participate in a criminal rehabilitation program entitled Emotional Maturity Instruction (EMI). Owens contends that the EMI program is religiously oriented and thus violative of his First Amendment rights. Owens next challenges the probation condition that requires him to consent to warrantless searches whenever requested by a probation officer or any law enforcement officer. Owens argues that this condition violates his Fourth Amendment right to be free of unreasonable searches and seizures. Finally, Owens' complaint attacks the probation condition which requires him to submit to Psychological Stress Evaluation (PSE) examinations, said to be a type of lie detector test. Owens contends that this condition is violative of his Fifth Amendment rights.

Owens' complaint seeks declaratory and injunctive relief against enforcement of these conditions of probation. Owens also seeks monetary damages for the alleged violation of his First Amendment rights.

In denying Owens' motion for summary judgment and granting the motion of the defendants the District Court purported to find that there were no material facts in dispute. ² We find that the District Court's award of summary judgment to the defendant was proper with regard to Owens' Fourth Amendment and Fifth Amendment claims. There is, however, a material factual dispute with regard to Owens' First Amendment claim, such that summary judgment should not have been awarded on this issue. Accordingly, we reverse and remand the case so that this constitutional issue may be properly resolved.

First Amendment Claims

Owens asserts that the District Court erred by not granting his motion for summary judgment on the issue of whether his First Amendment rights are violated by the probation condition which requires that he participate in the EMI program. Owens maintains that the program is pervaded with Biblical teachings such that it violates both the Establishment and Free Exercise clauses of the First Amendment. The District Court ruled that the EMI program does not violate the First Amendment because the program has a secular purpose and a primary secular effect. ³ We are not convinced, however, that the District Court had an adequate factual basis to resolve this issue on summary judgment.

"Summary Judgment should be granted only when the truth is clear, where the basic facts are undisputed and the parties are not in disagreement regarding material factual inferences that may be properly drawn from such facts." Sinderman v. Perry, 430 F.2d 939 (5th Cir. 1970). In the present case there is no dispute as to what constitutes the written course materials which Owens was required to read as an EMI student. The District Court examined this material and concluded that the teaching embodied in the material does not constitute religious indoctrination in violation of the First Amendment. The court erred, however, in disregarding Owens' contention that the oral instruction of the EMI course was impermissibly tainted with religious indoctrination. Owens testified in deposition that the EMI course as taught was religious in nature. He testified that Bert Pilgrim-one of the EMI instructors-frequently referred to and based his instructions on Biblical teachings. Owens also testified that Pilgrim recommended that the EMI students read the Bible. In an affidavit submitted to the Court, Pilgrim denied that he made any reference to the Bible during his oral EMI instructions.

It is clear that there was a material factual dispute as to the content and nature of the oral instruction component of the EMI course. Because of this dispute it was inappropriate for the District Court to resolve the First Amendment issue on summary judgment. The case thus must be remanded for an adequate factual explication.

While we intimate no position on the ultimate resolution of this issue it is clear that a condition of probation which requires the probationer to adopt religion or to adopt any particular religion would be unconstitutional. Cf. Abbington School District v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963). It follows that a condition of probation which requires the probationer to submit himself to a course advocating the adoption of religion or a particular religion also transgresses the First Amendment. In searching for the proper teaching of an EMI course it is probably difficult to locate one who can teach morality without reference to religion, but that is the task which must be accomplished. We recognize that there is a fine line between rehabilitation efforts which encourage lawful conduct by an appeal to morality and the benefits of moral conduct to the life of the probationer, and efforts which encourage lawfulness through adherence to religious belief. Nevertheless, this is the line that must not be overstepped. It will be the function of the District Court on remand to determine whether Owens has been placed in a program that does overstep this line.

Fourth Amendment Claim

Owens argues that the District Court erred in denying his motion for summary judgment with regard to his request for declaratory and injunctive relief to prohibit the enforcement of the condition of probation allowing warrantless searches of his person and property. This condition states:

Probationer shall submit to a search of his person, houses, papers, and/or effects as these terms of the Fourth Amendment to the United States Constitution are defined by the courts, any time of the day or night with or without a search warrant whenever requested to do so by a Probation Supervisor or any law enforcement officer and specifically consents to the use of anything seized as evidence in a proceeding to revoke this order of probation.

Owens contends that this condition violates his Fourth Amendment rights by allowing law enforcement officers to make warrantless searches without "reasonable cause." He maintains that searches should only be conducted on "reasonable suspicion," by a probation supervisor at reasonable times, and in a reasonable manner.

The question of whether the Fourth Amendment's proscription of unreasonable searches and seizures is violated by a condition of probation allowing warrantless searches by probation supervisors and law enforcement officers is one of first impression for this Court. For the reasons stated below we conclude that in the present case this condition is not unconstitutional.

"A probation condition is not necessarily invalid simply because it affects a probationer's ability to exercise constitutionally protected rights." United States v. Tonry, 605 F.2d 144, 150 (5th Cir. 1979). In Tonry the Court adopted the following test to determine whether a probation condition imposed by a federal court pursuant to the Federal Probation Act, 18 U.S.C. § 3651, is unduly intrusive on constitutionally protected freedoms:

The conditions must be "reasonably related" to the purposes of the Act. Consideration of three factors is required to determine whether a reasonable relationship exists: (1) the purposes sought to be served by probation; (2) the extent to which constitutional rights enjoyed by law-abiding citizens should be accorded to probationers; and (3) the legitimate needs of law enforcement.

605 F.2d at 150 (quoting United States v. Pierce, 561 F.2d 735 (9th Cir. 1977), cert. denied, 435 U.S. 923, 98 S.Ct. 1486, 55 L.Ed.2d 516 (1978)).

The Tonry test provides an appropriate standard to judge the constitutionality of conditions of probation imposed by state courts. This standard facilitates "an accommodation between the practical needs of the probation system and the constitutional guarantees of the Bill of Rights." United States v. Pierce, 561 F.2d at 739. In the present case the challenged condition will meet constitutional muster if an analysis of the three factors cited in Tonry shows that the condition is reasonably related to the purposes of probation under Georgia law.

We first must ascertain the...