Abu-Jamal v. Price
| Decision Date | 25 August 1998 |
| Docket Number | ABU-JAMA,No. 96-3756,A,96-3756 |
| Citation | 154 F.3d 128 |
| Parties | Mumiappellant v. James PRICE, in his official capacity as Superintendent of the State Correctional Institution at Greene; Martin Horn, in his official capacity as Commissioner of the Pennsylvania Department of Corrections; Thomas Fulcomer, in his official capacity as Deputy Commissioner of the Pennsylvania Department of Corrections |
| Court | U.S. Court of Appeals — Third Circuit |
Timothy P. O'Brien, Mitchell, O'Brien & Krakoff, Pittsburgh, PA; Jere Krakoff (Argued), Pennsylvania Institutional Law Project, Pittsburgh, PA, for Appellant.
Amy Zapp (Argued), Office of Attorney General of Pennsylvania, Department of Justice, Harrisburg, PA; Thomas F. Halloran, Jr., Office of Attorney General of Pennsylvania, Pittsburgh, PA, for Appellees.
Before: NYGAARD, ALITO, and LAY, * Circuit Judges
Appellant Mumia Abu-Jamal was convicted of murdering a Philadelphia police officer and is currently on death row at the State Correctional Institute at Greene. The Pennsylvania Department of Corrections has a rule that prohibits inmates from carrying on a business or profession. Jamal alleges that this rule is unconstitutional and that the Department used this rule as a pretext to retaliate against him for the content of his writings, radio commentaries, and his book, Live From Death Row, which he wrote while at the State Correctional Institution at Huntingdon. He alleges that this retaliation included opening, reading and distributing his legal mail by Department officials and denying visits by his paralegals.
Jamal filed suit against the Department and Superintendent James Price seeking declaratory and injunctive relief under 42 U.S.C. § 1983. He claims that the Department violated his rights under the First and Fourteenth Amendments, and challenges the business or profession rule. He sought a preliminary injunction to prevent the Department from investigating violations of, and enforcing its business or profession rule against him. When he made the motion, Jamal was serving a prison disciplinary sentence for engaging in the profession of journalism at S.C.I. Greene.
The district court denied Jamal's motion for a preliminary injunction against the enforcement of the business or profession rule, but granted a limited injunction against the opening of Jamal's legal mail. The court held that the disciplinary proceedings and the Department's decision to open Jamal's mail were not motivated by retaliation for Jamal's writings. Instead, the district court held that the Department initiated these actions after it suspected that Jamal had entered into a contract with a publisher for compensation. The trial court also denied Jamal's motion to rescind disciplinary action for violating the business or profession rule. The court, however, enjoined the reading, photocopying, distributing or collection of his legal mail, except to "investigate the violation of prison regulations or other misconduct." Finally, the court denied Jamal's motion to enjoin the Department from requiring paralegals to be trained or licensed and to work under contract with the attorneys, concluding that the Department had valid, nonretaliatory reasons for enforcing the visitation rule. 1 Jamal appeals.
We conclude that Jamal has a reasonable probability of demonstrating that the Department's actions violated his rights under the First and Fourteenth Amendments, and that Jamal has demonstrated that he will be subject to irreparable harm if the injunction is not granted. Accordingly, we will reverse, and remand the cause to the district court with instructions to enjoin the investigation and enforcement of the business or profession policy as it pertains to Jamal. We affirm the district court's order insofar as it denied Jamal's motion to enjoin the Department's visitation restrictions.
Jamal worked as a journalist before his conviction, and he has continued to write articles while incarcerated. Approximately forty publications carried articles under Jamal's byline on a regular basis while he was incarcerated at S.C.I. Huntingdon. Supporters would send copies of Jamal's published articles via regular prison mail. S.C.I. Huntingdon corrections officers opened and searched these articles as part of screening procedures. For instance, on one occasion, the superintendent of S.C.I. Huntingdon commended Jamal for a Yale Law Journal article. See Mumia Abu-Jamal, Teetering on the Brink: Between Death and Life, 100 Yale L.J. 993 (1991). Jamal received compensation for the Yale article, and for other articles published by The Nation, Covert Action, and Against the Current. Department officials were not aware, however, that Jamal was paid for any other publications.
In July of 1992, Jamal recorded an extensive interview with the Prison Radio Project, which aired in segments featured as commentaries from Jamal. Jamal did not receive compensation for these interviews. The Prison Radio Project wrote a letter to the assistant superintendent in August of 1992 requesting permission to regularly tape and air commentaries by Jamal, who would be introduced as a correspondent. In the same letter, the Project informed the Department that they were "in the process of approaching publishers with a book proposal."
The Department denied the Project's request to tape regular commentaries, stating that "it does not permit inmates to conduct or participate in regularly scheduled news broadcasts or commentary." In April 1994, National Public Radio also interviewed Jamal, and intended to use the recordings as commentaries critical of prison life, among other topics. NPR paid Jamal for these interviews, which focused considerable media attention on Jamal's case. Several members of the public and the Fraternal Order of Police contacted the Department to express outrage that a convicted murderer could benefit from his status.
As a result of the complaints, the Department began to "investigate" whether Jamal was violating the business or profession rule, despite the fact that Jamal freely admitted that he was writing and publishing his works. It instituted a "mail watch" in August of 1994, which is separate and distinct from the routine search of incoming personal mail. Under a mail watch, corrections officers were entitled to open Jamal's legal mail outside of his presence.
The business or profession rule states, in relevant part:
2
(footnote added). The Department contends that it reviewed Jamal's legal mail specifically to determine whether one of Jamal's attorneys was helping him obtain compensation for his writing and commentaries, even though the business or profession rule applies irrespective of whether Jamal is compensated.
Department of Corrections officials opened Jamal's legal mail, copied it, and sent it to David Horwitz, assistant general counsel of the Department of Corrections. Horwitz read the letters in their entirety, and concluded that they were not relevant to the Department's investigation. In the face of this conclusion, and even though Horwitz determined that the letters were pertinent to Jamal's state appeals, Horwitz forwarded them to Chief Counsel Young and to Brian Gottlieb, Deputy Counsel in the Office of the General Counsel--the office charged with advising the Governor of Pennsylvania on, among other things, signing death warrants.
The Department forwarded three letters from Jamal's attorneys to the governor's office. Two of those letters, dated August 16, 1994 and August 23, 1994, were from Jamal's lead attorney in his state appeal and contained a candid discussion of the merits of his claim and sensitive information regarding the defense strategy. The third letter, dated August 25, 1994 had been written by staff counsel on Jamal's state appeal, and also discussed his case. The Department continued a "mail watch" on Jamal's legal mail from August 1994, until Jamal filed this lawsuit, and confiscated and copied various incoming and outgoing letters. When Jamal filed his motion for a preliminary injunction, he had entered into a contract with Emerge Magazine to submit an article. The Department continued its investigation of Jamal.
In September 1994, the Department became suspicious of the number of people admitted as paralegals for legal visits with Jamal. Jamal's attorney designated six legal assistants. Among these were Noelle Hanrahan, who was also working with Jamal as part of the Prison Radio Project; Jeannette Patton and Bobby Blocker, who were involved in fund-raising for Jamal's legal defense; and Jamila Levi, who calls herself Jamal's "spiritual sister" and had visited Jamal in the past. Levi visited Jamal as a social visitor in October 1993 and began visiting as a paralegal in October 1994. In January of 1995, she was admitted as a social guest. In February of 1995, she was admitted as a paralegal four times. Levi marked herself as "friend" in the prison's visitors book even when she was admitted for legal visits, and had written articles complaining of the limits imposed upon social visits for death row inmates.
In a February 24, 1995 letter, the Department wrote to Jamal's attorney: "it is not sufficient merely to designate persons as investigators and paralegals unless the identified individuals can produce documentation that they are, in fact, licensed investigators or credentialed paralegals acting under contract with, or as employees of the attorney." These requirements went beyond those set forth in prison regulations. 3 Levi was not licensed as...
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