Herlein v. Higgins

• Decision Date: 20 April 1999
• Docket Number: No. 98-2271,98-2271
• Citation: 172 F.3d 1089
• Parties: Michael Jon HERLEIN, Appellee, v. Charles HIGGINS, MPCF Deputy Superintendent; Andrea Wright, MPCF Grievance Officer; and David Bell, MPCF Correctional Counselor, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1089

172 F.3d 1089

Michael Jon HERLEIN, Appellee, v. Charles HIGGINS, MPCF Deputy Superintendent; Andrea Wright MPCF Grievance Officer; and David Bell, MPCF Correctional Counselor, Appellants.

No. 98-2271.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 9, 1999.

Decided April 20, 1999.

Patrick Ingram, Iowa City, IA, argued, for Appellee.

Layne M. Lindebak, Des Moines, IA, argued, for Appellants.

Before WOLLMAN, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Michael Jon Herlein, formerly an inmate at the Mount Pleasant Correctional Facility (MPCF), sued three MPCF officials, challenging on First Amendment grounds the prison's ban on the possession of music cassettes bearing the warning "parental advisory--explicit lyrics." The trial court denied an injunction but granted declaratory relief and awarded nominal damages to Mr. Herlein. The defendants appeal, and we reverse.

I.

Prison regulations survive a constitutional challenge if they are "reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). In Turner, the Supreme Court upheld a ban on inmate-to-inmate correspondence and identified four considerations that are material in such decisions: Whether a " 'valid, rational connection' " exists between the prison policy and a legitimate government interest; whether alternative means of exercising the asserted right are open to inmates; whether ready alternatives are available that accommodate the asserted right at de minimis cost to the pursuit of valid penological objectives; and whether accommodation of the asserted right will have negative effects on guards, inmates, or prison resources. Id. at 89-91, 107 S.Ct. 2254, quoting Block v. Rutherford, 468 U.S. 576, 586, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984). Assuming arguendo that there is a constitutional right to possess music tapes, and that this right is one of those retained by prisoners, we consider each of these matters in turn.

The MPCF officials assert that security in prisons is a legitimate government interest, and note specifically the threat to security that can arise from exposing the gang members and sex offenders detained at MPCF to music with explicit lyrics. Security, of course, is a valid penological objective. See, e.g., O'Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987). The trial court ruled, however, that the defendants failed to demonstrate a rational connection between banning tapes with warning labels and maintaining security.

In Turner, 482 U.S. at 89-90, 107 S.Ct. 2254, the Supreme Court stated that the connection between a prison regulation and a government interest is inadequate when "the logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational." We do not believe that it is arbitrary or irrational to believe that music with violent or sexually explicit lyrics might present a security risk in an environment that includes gangs and sex offenders.

Mr. Herlein further argues, however, that the overbreadth of the policy is demonstrated by the lack of evidence of security difficulties caused by the censored material prior to the ban, and notes the lack of trial evidence of any such difficulties. There is nothing in our cases, though, that requires actual proof that a legitimate interest will be furthered by the challenged policy. The connection between the two need be only objectively rational. In fact, the Supreme Court held in Turner, 482 U.S. at 91-92, 107 S.Ct. 2254, that a ban on inmate-to-inmate correspondence was rationally connected to maintaining security and to suppressing gang activity, without adverting to any specific evidence that such correspondence had led to violence or gang activity in the past.

II.

The trial court found that Mr. Herlein had only "limited and random" means of obtaining the banned music over the radio. The Supreme Court has taken a broad view, however, of what can constitute alternative avenues for the exercise of a right, and has pointed out, for instance, that a ban on inmate-to-inmate correspondence "does not deprive prisoners of all means of expression" but bars communication only with a limited class of prisoners who give particular cause for concern. Turner, 482 U.S. at 92, 107 S.Ct. 2254. That is equally the...