Human Rights Def. Ctr. v. Baxter Cnty. Ark.

• Decision Date: 08 June 2021
• Docket Number: No. 19-2096,19-2096
• Citation: 999 F.3d 1160
• Parties: HUMAN RIGHTS DEFENSE CENTER, Plaintiff - Appellant v. BAXTER COUNTY ARKANSAS, Defendant - Appellee Americans for Prosperity; Arch City Defenders ; Center for Appellate Litigation ; Clark-Fox Family Foundation; Free Minds Book Club & Writing Workshop ; Just Detention International; Michigan State University College of Law's Civil Rights Clinic; R Street Institute ; Roderick and Solange MacArthur Justice Center ; Rutherford Institute; Uptown People's Law Center, Amici on Behalf of Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

999 F.3d 1160

HUMAN RIGHTS DEFENSE CENTER, Plaintiff - Appellant

v. BAXTER COUNTY ARKANSAS, Defendant - AppelleeAmericans for Prosperity; Arch City Defenders ; Center for Appellate Litigation ; Clark-Fox Family Foundation; Free Minds Book Club & Writing Workshop ; Just Detention International; Michigan State University College of Law's Civil Rights Clinic; R Street Institute ; Roderick and Solange MacArthur Justice Center ; Rutherford Institute; Uptown People's Law Center, Amici on Behalf of Appellant

No. 19-2096

United States Court of Appeals, Eighth Circuit.

Submitted: June 17, 2020

Filed: June 8, 2021

Rehearing and Rehearing En Banc Denied July 14, 2021

Counsel who presented argument and appeared on the brief on behalf of the appellant was Caesar D. Kalinowski, of Seattle, WA. The following attorneys also appeared on the appellant brief; Paul J. James, of Little Rock, AR., Bruce E.H. Johnson, of Seattle, WA., Masimba Maxwell Mutamba, of West Palm Beach, FL., Caesar D. Kalinowski, of Seattle, WA., Daniel Marshall, of Lake Worth, FL.

Counsel who presented argument and appeared on the brief on behalf of the appellee was Jason E Owens, of Conway, AR. The following attorney also appeared on the appellee brief; Kaylen Suzanne Lewis, of Conway, AR.

Before LOKEN and GRASZ, Circuit Judges, and PITLYK,¹ District Judge.

PER CURIAM.

This case, which pits First Amendment free-speech rights of a publisher against important correctional-security interests, presents a vestigial dilemma from the pre-digital communication era. Technology may soon assign the issue to relic status. But, in the meantime, our task is to answer the question of whether a publisher's constitutional rights have been infringed upon by a prison policy limiting most communication with inmates to postcards—in a facility with no electronic kiosk or similar device capable of communicating the publisher's materials.

In January 2012, the Sheriff of Baxter County, Arkansas, initiated a new policy regulating incoming mail to inmates and detainees at the Baxter County Jail and Detention Center ("Jail"). The policy provided "[w]ith the exception of privileged mail or legal mail, the only type of mail the jail staff are permitted to accept for the inmate is post cards. Other mail will be marked for return to sender."

Between August 2016 and May 2017, the Human Rights Defense Center ("HRDC"), a non-profit organization, mailed several unsolicited batches of materials to multiple Jail inmates. The materials included, among other items, copies of two HRDC publications, Prison Legal News and The Habeas Citebook: Ineffective Assistance of Counsel ("The Habeas Citebook "), together with subscription order forms. Most of the mailings were returned to HRDC marked "Refused," "Return to Sender Insufficient Address," or "Return to sender, postcards only." HRDC then sued Baxter County under 42 U.S.C. § 1983, alleging that (1) the Jail's postcard-only policy violates HRDC's First Amendment right to communicate with Jail inmates, and (2) the Jail's rejection of HRDC's mailings violated HRDC's Fourteenth Amendment procedural due process rights to notice and an opportunity to appeal the Jail's decisions.

The district court initially granted partial summary judgment in favor of HRDC, concluding that the Jail's rejection of HRDC mailings on August 5, 2016, was a "technical" violation of HRDC's due process rights to notice of the reason for the rejection and an opportunity to be heard. After a bench trial, the district court held the postcard-only policy was reasonably related to legitimate penological goals and did not violate HRDC's First Amendment rights. See Turner v. Safley , 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) ; Simpson v. Cnty. of Cape Girardeau , 879 F.3d 273 (8th Cir. 2018). The district court awarded HRDC four dollars in nominal due process damages for its four discrete August 2016 mailings. HRDC appeals both rulings. We affirm the due process ruling, vacate the First Amendment ruling, and remand for further proceedings.

I. Background

HRDC's non-profit mission "is to educate prisoners and the public about the destructive nature of racism, sexism, and the economic and social costs of prisons to society." HRDC accomplishes this mission through litigation, advocacy, and publishing/distributing magazines and books to prisoners nationwide.

Prison Legal News is a 72-page monthly magazine containing news about prison facilities and conditions, prisoners’ rights, and court opinions. The Habeas Citebook is a 200-page self-help book detailing federal and state cases dealing with ineffective assistance of counsel issues. To communicate its message and to solicit new subscribers, HRDC sends unsolicited batches of "outreach" materials to inmates, including samples of books and magazines, letters, prior court cases, and subscription information.

Baxter County is located in north central Arkansas. The Jail houses 116-141 pretrial detainees, convicted misdemeanants, and felons awaiting transportation to the Arkansas Department of Corrections. Very few Jail inmates are there longer than a matter of months.

In December 2011, the Sheriff announced a new postcard-only mail policy. The Sheriff issued a press release explaining the rationale for the new policy: "First, it is being undertaken as a security precaution as a proactive measure to decrease the amount of contraband coming into the Detention Center. Second, it is being undertaken as a cost savings measure to the county, which has to supply postage for indigent inmates." At trial, the Sheriff reiterated the security and cost-saving rationales. He testified that the postcard-only policy was also designed to conserve resources because it made inspecting and processing the mail more efficient, allowing limited Jail staff more time to carry out other duties. Under this policy, HRDC's mailings were returned to HRDC instead of being distributed to inmates.

II. The First Amendment Claim

The Supreme Court has made it clear that persons who are incarcerated do not forfeit First Amendment protection of their rights to freedom of speech and religion at the prison gate. Bell v. Wolfish , 441 U.S. 520, 545, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Nor do prison walls "bar free citizens from exercising their own constitutional rights by reaching out to those on the ‘inside.’ " Thornburgh v. Abbott , 490 U.S. 401, 407, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989). "[T]here is no question that publishers who wish to communicate with those who, through subscription, willingly seek their point of view have a legitimate First Amendment interest in access to prisoners." Id. at 408, 109 S.Ct. 1874. However, "maintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees." Bell , 441 U.S. at 547, 99 S.Ct. 1861.

To determine whether a jail or prison policy infringes on the First Amendment rights of inmates, as well as those seeking to communicate with them, "the relevant inquiry is whether the [policy is] ‘reasonably related to legitimate penological interests.’ " Thornburgh , 490 U.S. at 409, 109 S.Ct. 1874 (quoting Turner , 482 U.S. at 89, 107 S.Ct. 2254 ). To help answer that question, the Supreme Court has identified factors relevant to this inquiry: (1) "whether the [policy] has a ‘valid rational connection’ to a legitimate governmental interest"; (2) "whether alternative means are open to [those desiring to communicate with] inmates to exercise the asserted right"; (3) "what impact an accommodation of the right would have on guards and inmates and prison resources"; and (4) "whether there are ‘ready alternatives’ to the [policy]." Overton v. Bazzetta , 539 U.S. 126, 132, 123 S.Ct. 2162, 156 L.Ed.2d 162 (2003) (quoting Turner , 482 U.S. at 89–91, 107 S.Ct. 2254 ). These so-called Turner factors present factual and legal questions for which "the district court must necessarily find the facts that either support or undermine the constitutionality of a particular [policy], [but] the ultimate conclusion as to constitutionality is a question of law." Hill v. Blackwell , 774 F.2d 338, 343 (8th Cir. 1985). Courts are to give "substantial deference to the professional judgment of prison administrators, who bear a significant responsibility for defining the legitimate goals of a corrections system and for determining the most appropriate means to accomplish them." Overton , 539 U.S. at 132, 123 S.Ct. 2162.

After a bench trial, the district court upheld the postcard-only policy concluding "that all of the Turner factors favor the County." We review de novo the court's application of the Turner factors to its factual findings. Iron Eyes v. Henry , 907 F.2d 810, 813 (8th Cir. 1990). The burden of persuasion is not on the County to prove the validity of its policy, but on HRDC to disprove it. Overton , 539 U.S. at 132, 123 S.Ct. 2162 ; see Beard v. Banks , 548 U.S. 521, 529, 126 S.Ct. 2572, 165 L.Ed.2d 697 (2006).

As the district court recognized, the second Turner factor—whether alternative means are open to exercise the asserted right—presents a different issue when the outsider seeking to communicate with inmates is a publisher like HRDC, rather than a member of an inmate's immediate family, as was the case in Simpson .² The district court found that this factor favored the County because there are several alternative ways in which HRDC can communicate with Jail inmates—postcards, in-person visitation, and donating materials to the Jail's law library. The district court acknowledged, however, the alternative means available to HRDC, a distant publisher, are less practical than the alternatives available to the inmate's nearby mother in Simpson .

The Supreme Court has made it clear that while alternative means of communication do not have to be "ideal," they do have to be "available." Overton , 539 U.S....