74 F.3d 1545 (8th Cir. 1996), 94-3845, Hamilton v. Schriro

Docket Nº:94-3845.
Citation:74 F.3d 1545
Party Name:Mark Juan HAMILTON, Appellee, United States of America, Intervenor, v. Dora SCHRIRO; Paul Delo; Jody Jackson; Bill Armontrout, Appellants. Coalition for the Free Exercise of Religion; Koinonia House of Dupage County and Justice Fellowship.
Case Date:January 12, 1996
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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74 F.3d 1545 (8th Cir. 1996)

Mark Juan HAMILTON, Appellee,

United States of America, Intervenor,


Dora SCHRIRO; Paul Delo; Jody Jackson; Bill Armontrout,


Coalition for the Free Exercise of Religion; Koinonia House

of Dupage County and Justice Fellowship.

No. 94-3845.

United States Court of Appeals, Eighth Circuit

January 12, 1996

Submitted Sept. 13, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied April

1, 1996.[*]

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[Copyrighted Material Omitted]

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Erwin O. Switzer, III, Assistant Attorney General (Susan D. Boresi, Assistant Attorney General, on brief), St. Louis, MO, for appellant.

Patricia A. Millett, Department of Justice, Washington, DC, argued (David G. Ott and Dean R. Gallego, Clayton, MO, appeared on brief of appellee Hamilton), for U.S.

Before McMILLIAN, BEAM, and HANSEN, Circuit Judges.

BEAM, Circuit Judge.

Mark Juan Hamilton, an American Indian, initiated the present action under the Civil Rights Act of 1871, 42 U.S.C. Sec. 1983, alleging that Missouri prison officials (prison officials) violated his First Amendment right to free exercise of religion by requiring him to cut his hair and by denying him access to a sweat lodge. Applying the Religious Freedom Restoration Act (RFRA), 42 U.S.C. Sec. 2000bb, the district court enjoined prison officials from enforcing a hair length regulation and ordered them to provide a weekly sweat lodge ceremony. Prison officials appeal. Because the prison regulation and policy at issue do not violate Hamilton's right to free exercise of religion as protected by the First Amendment and RFRA, we reverse.


Hamilton is incarcerated at the maximum security Potosi Correctional Center (Potosi). 1 The facility provides cross-denominational religious facilities inside prison buildings. American Indian inmates at Potosi are allowed to pray, to gather together for regularly scheduled services, to meet with outside spiritual leaders, and to obtain religious reading material from the library. American Indians are also allowed to carry medicine bags containing ceremonial items and have access to a ceremonial pipe and kinnikinnik (a ceremonial "tobacco" consisting of willow, sweet grass, sage and cedar). Potosi does not allow a sweat lodge, sweat lodge ceremony, or fires on the premises. Potosi officials enforce a Missouri Department of Corrections regulation that prohibits hair length beyond the collar for male inmates. Hamilton asserts that prison officials violated his First Amendment right to free exercise of religion by denying him and other American Indian prisoners access to a sweat lodge and by requiring their compliance with the hair length regulation.

Hamilton brought the present action seeking injunctive relief, damages and attorney fees. Hamilton's damage claims were dismissed and are not before us on appeal. A hearing was held on March 29 and 30, 1994, on Hamilton's equitable demands.

A. Hair Length

Hamilton testified that American Indian males believe that their hair is a gift from

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the Creator and is to be cut only when someone close to them dies. Hamilton and other American Indian inmates had long hair but were forced to cut it at the Potosi prison. Hamilton testified that at one time his hair was four-feet long.

Prison officials testified that long hair poses a threat to prison safety and security. Stephen Long, the Assistant Director of Adult Institutions for the Missouri Department of Corrections, testified that inmates could conceal contraband, including dangerous materials, in their long hair. Long stated that without the hair length regulation, prison staff would be required to perform more frequent searches of inmates, which could cause conflicts between staff and inmates. Searching an inmate's long hair would be difficult, especially if the inmate's long hair were braided. Long also testified that the prison had tried to control gangs by not allowing them to identify themselves through colors, clothes, or hair carvings. He testified that exempting American Indians from the hair length regulation could cause resentment by the other inmates. He concluded that there was no alternative to the hair length policy because only short hair can easily be searched and remain free of contraband. Finally, Long noted that long hair could also cause problems with inmate identification.

B. Sweat Lodge

The sweat lodge ceremony primarily takes place inside a dome-shaped structure constructed of bent willow poles and covered with hides, blankets, or tarps. Rocks heated in a separate fire are placed in the center of the lodge. During the ceremony, several tools are used including an axe (to split the firewood), a shovel (to transfer the hot rocks from the fire to the sweat lodge) and deer antlers. Participants, who are nude, pour water on the hot rocks to create steam, which causes them to sweat. Throughout the ceremony, the lodge remains covered to retain the steam and to keep out the light. The ceremony lasts between one and three hours. When the lodge is not in use, the covers are removed but the willow poles remain intact.

Hamilton testified that the sweat lodge ceremony is instrumental to the practice of his religion because it purifies the participant. Purity, according to Hamilton, is a prerequisite to participating in other religious ceremonies, such as offering prayers and smoking the sacred pipe. Hamilton also testified that participants in these ceremonies must be seated outdoors on the ground. Hamilton stated that if he could not have access to a sweat lodge ceremony, he would not and could not practice any aspect of his religion.

Hamilton introduced deposition testimony from prison administrators in a few other states that their respective facilities conduct sweat lodge ceremonies without any major problems. These prison administrators conceded that they were aware of some problems, including rumors of sexual impropriety during the sweat lodge ceremony. No prisoner had filed a formal complaint and the prison guards were unable to observe what actually occurred inside the lodge.

The Potosi prison officials testified that the sweat lodge requested by Hamilton raised concerns of prison safety and security. Specifically, Long testified that the implements requested by Hamilton to conduct the sweat lodge ceremony, such as a shovel and an axe, could be used to assault other inmates and prison guards. Long further testified that problems arise when inmates in a maximum security prison, who are typically prone to violence, congregate in groups.

Alan Luebbers, the Associate Superintendent at Potosi, testified that inmates who work with tools are supervised by prison guards. The secluded nature of the sweat lodge would make such supervision impossible, thus providing the inmates with an opportunity to assault other inmates, make weapons, use drugs, dig a tunnel, and engage in homosexual activity. Normally, a prison guard is posted at religious functions to observe the inmates and ensure their safety.

Gary Tune, the Chaplain at the Potosi Correctional Center, testified that if a sweat lodge were built it would be the only facility devoted to a single religion. Assistant Director Long also expressed concern over allowing Hamilton, an inmate, to decide who

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may or may not use the sweat lodge. He concluded that providing a sweat lodge may cause resentment among the inmates.

Jodie Jackson, the Chaplaincy Coordinator for the Missouri Department of Corrections, testified that some American Indian inmates at other Missouri state prisons practiced their religion outdoors on the ground without the benefit of a sweat lodge. Those prisoners offered prayers, observed special seasons, and smoked the ceremonial pipe. Jackson testified that Hamilton had not requested permission to practice his religion outdoors in a manner similar to that at other institutions. Jackson stated, however, that the Missouri Department of Corrections would consider such a request if it were made.

The district court found "that the regulations and policies at issue in this lawsuit with regard to plaintiff's practice of his ... religion substantially [burden] plaintiff's exercise of his religion." Hamilton v. Schriro, 863 F.Supp. 1019, 1024 (W.D.Mo.1994). The district court held that "[a]lthough safety, security and cost concerns may be shown to be compelling governmental interests in the prison setting, defendants have not shown that the regulations and practices used by the Missouri Department of Corrections are the least restrictive means of furthering that interest." Id. The district court enjoined enforcement of the hair length regulation and ordered the prison officials to allow Hamilton to practice his religion, including a weekly sweat lodge ceremony. Id. at 1020. In a subsequent order, the district court awarded attorney fees to Hamilton. The district court also stated "that for 6 months after the sweat lodge becomes operational and the ceremony is implemented, participation in the sweat lodge ceremony shall be limited to those who are sincere adherents of the Native American religion or to those who have been approved for participation by majority vote of Native Americans who practice the Native American religion and are scheduled to participate in the ceremony." Hamilton v. Schriro, No. 91-4373, Amended Judgment (W.D.Mo. Nov. 21, 1994).

On appeal, the prison officials contend that: (1) Hamilton is not sincere in his adherence to the American Indian religion; (2) the prison regulations and policies do not substantially burden Hamilton's free exercise of his religious beliefs; and (3) the limitations imposed on hair length and sweat lodges are the least...

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