Teterud v. Burns

• Decision Date: 04 September 1975
• Docket Number: No. 75-1066,75-1066
• Citation: 522 F.2d 357
• Parties: Jerry TETERUD, Appellee, v. Kevin J. BURNS, Individually and in his official capacity as Director of the Department of Social Services for the State of Iowa, et al., Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 357

522 F.2d 357

Jerry TETERUD, Appellee, v. Kevin J. BURNS, Individually and in his official capacity as

Director of the Department of Social Services for

the State of Iowa, et al., Appellants.

No. 75-1066.

United States Court of Appeals,

Eighth Circuit.

Submitted June 10, 1975.

Decided Sept. 4, 1975.

Lorna Lawhead Williams, Sp. Asst. Atty. Gen., Des Moines, Iowa, for appellants.

Roy S. Haber, Native American Rights Fund, Boulder, Colo., for appellee.

Allen L. Donielson, U. S. Atty., J. Stanley Pottinger, Asst. U. S. Atty., Brian K. Landsberg, Walter W. Barnett, and Dennis J. Dimsey, Attys., Dept. of Justice, Washington, D. C., filed brief for amicus curiae, United States.

Before VAN OOSTERHOUT, Senior Circuit Judge, and LAY and HEANEY, Circuit Judges.

HEANEY, Circuit Judge.

Jerry Teterud, an American Indian inmate of the Iowa State Penitentiary, challenged under 42 U.S.C. § 1983 a prison regulation prohibiting him from wearing long braided hair. ¹ He contended that the regulation deprived him of his rights under the First and Fourteenth Amendments to: (a) freely exercise his religion; (b) freedom of expression; (c) govern his personal appearance; and (d) equal protection of the laws. The complaint prayed for declaratory and injunctive relief. On August 23, 1973, a temporary restraining order issued enjoining enforcement of the regulation. Subsequently, after an evidentiary hearing, the District Court ² granted relief, finding the regulation unconstitutional under the Free Exercise Clause of the First Amendment. ³ We affirm.

I

We determine the constitutionality of the challenged regulation in light of the First Amendment rights asserted and on the basis of the facts adduced at trial. In this determination, we are as vigilant in protecting a prisoner's constitutional rights as we are in protecting the constitutional rights of a person not confined. See Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972); Moore v. Ciccone, 459 F.2d 574, 576 (8th Cir. 1972) (en banc); Sharp v. Sigler, 408 F.2d 966, 970 (8th Cir. 1969); Ross v. Blackledge, 477 F.2d 616, 618 (4th Cir. 1973); Neal v. State of Georgia, 469 F.2d 446, 449 (5th Cir. 1972); Barnett v. Rodgers, 133 U.S.App.D.C. 296, 410 F.2d 995, 1000-1001 (1969); Cooper v. Pate, 382 F.2d 518, 521 (7th Cir. 1967). A prisoner retains those First Amendment rights not inconsistent with his status as a prisoner or with the legitimate penological objectives of the correctional institution. Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495, 501 (1974). While deference is accorded the expertise and discretionary authority of the correction officials, a regulation which is more restrictive than necessary to meet the institutional objectives or which does not serve the objectives advanced will be struck down. Id. at 826, 94 S.Ct. at 2806, 41 L.Ed.2d at 504; Procunier v. Martinez, 416 U.S. 396, 413, 420, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974); Moore v. Ciccone, supra at 576.

II

The District Court found the wearing of long braided hair to be a tenet of the Indian religion sincerely held by Teterud. It further found that the interests of penal administration advanced by Warden Brewer could be served by viable, less restrictive means. The appellants challenge these findings as clearly erroneous. See Federal Rule of Civil Procedure 52(a); Zenith Radio Corp. v. Hazeltine Research, 395 U.S. 100, 123, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969).

A

They initially assert that the record does not support the District Court's finding that wearing long braided hair is a tenet of the Indian religion. They argue that the hair style is reflective of the purely secular considerations of racial pride and personal preference, unprotected by the Free Exercise Clause. See Wisconsin v. Yoder, 406 U.S. 205, 215, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). We disagree. The testimony of Professor Robert Thomas, ⁴ Professor Preston Holder, ⁵ and Wallace Black Elk ⁶ supports the court's conclusion.

The appellants' argument appears to be premised on the theory that Teterud was required to prove that wearing long braided hair was an absolute tenet of the Indian religion practiced by all Indians. ⁷ This is not the law. Proof that the practice is deeply rooted in religious belief is sufficient. It is not the province of government officials or court to determine religious orthodoxy. Fowler v. Rhode Island, 345 U.S. 67, 70, 73 S.Ct. 526, 97 L.Ed. 828 (1953); West Virginia State Bd. of Edu. v. Barnette,319 U.S. 624, 642, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943); Cantwell v. Connecticut, 310 U.S. 296, 307, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); Rowland v. Jones, 452 F.2d 1005, 1006 (8th Cir. 1971) (per curiam).

* * * The Fathers of the Constitution were not unaware of the varied and extreme views of religious sects, of the violence of disagreement among them, and of the lack of any one religious creed on which all men would agree. They fashioned a charter of government which envisaged the widest possible toleration of conflicting views. Man's relation to his God was made no concern of the state. He was granted the right to worship as he pleased and to answer to no man for the verity of his religious views. * * * The First Amendment does not select any one group or any one type of religion for preferred treatment. It puts them all in that position. * * *

United States v. Ballard, 322 U.S. 78, 87, 64 S.Ct. 882, 886, 88 L.Ed. 1148 (1944) (Citations omitted.).

While also a matter of tradition, the wearing of long hair for religious reasons is a practice protected from government regulation by the Free Exercise Clause. See Wisconsin v. Yoder, supra, 406 U.S. at 216, 92 S.Ct. 1526; Welsh v. United States, 398 U.S. 333, 343, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970). We will not, at the insistence of the appellants, judge the orthodoxy of Teterud's beliefs.

B

They next assert that the District Court was clearly erroneous in finding that Teterud was sincere in his religious beliefs. Again, we disagree. See United States v. Seeger, 380 U.S. 163, 184, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965). First, the sincerity of Teterud's belief was, on questioning from appellee's counsel, admitted by Warden Brewer. Second, when asked what it would mean to cut his hair, Teterud stated I would feel spiritually just dead. I would feel empty. Mentally, it would be a tremendous strain. I would have to feel I would feel it would be necessary that I felt that my whole individual being, my being was going to die. ⁸

Third, the fact that Teterud was, prior to trial, an active leader in the Church of the New Song is not inconsistent with a sincere belief in the Indian religion, for the record shows that the former does not require conformity to certain beliefs. The Indian religion, unlike Christian religions, is not exclusive. Its followers can, without contradiction, participate in different religions simultaneously.

C

Finally, the appellants assert that the encroachment on Teterud's right to exercise his religious beliefs is no greater than necessary to serve the interests of penal administration furthered by the regulation. They argued below that the absolute prohibition against wearing long hair was necessary for: (1) sanitary food preparation; (2) safe operation of machinery; (3) easy identification of inmates; (4) security against contraband; and (5) the personal cleanliness of inmates. The District Court held these justifications to be either without substance or overly broad in their sweep. It found that: (1) the interests in sanitation and safety could be adequately served by requiring those with long hair to wear hair nets; (2) those inmates whose appearance changes by growing long hair could be rephotographed for easy identification; (3) any contraband secreted in the longer hair would be found by the normal body searches; and (4) there was no reason to believe an inmate could not keep long hair clean. ⁹

The testimony of Warden Brewer, elicited by appellee's counsel, supports each of the District Court's findings. ¹⁰ Indeed, the only reason advanced in support of the regulation was the Warden's opinion, unsupported by empirical proof, that the hair net and reidentification requirements necessitated by allowing long hair would create a "hassle" between correction officers and inmates. The record does not show, however, that any increased administrative burden would be greater than that normally encountered when the constitutional rights of prisoners are enforced. Moreover, Warden Brewer testified by post-trial deposition, when an estimated twenty percent of the inmate population was in noncompliance with the regulation, that after five months of nonenforcement under the restraining order, no inmate problems had resulted from the wearing of long hair. ¹¹ Justifications founded only on fear and apprehension are insufficient to overcome rights asserted under the First Amendment. See Tinker v. Des Moines Community School Dist., 393 U.S. 503, 508-509, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); Bishop v. Colaw, 450 F.2d 1069, 1076 (8th Cir. 1971).

III

While the power to act in conformity with one's religious beliefs is not absolute, the state's power to regulate that conduct " * * * must be so exercised as not, in attaining a permissible end, unduly * * * infringe the protected freedom." Cantwell v. Connecticut, supra, 310 U.S. at 304, 60 S.Ct. at 903. Accord, Wisconsin v. Yoder, supra, 406 U.S. at 219-220, 92 S.Ct. 1526. The appellants rely on Proffitt v. Ciccone, 506 F.2d 1020, 1021 (8th Cir. 1974), for the proposition that any infringement on Teterud's right to exercise his religious beliefs caused by the hair regulation is not unconstitutional under the First Amendment as a matter of law. ¹² While there is language in Proffitt which might give rise to that reliance, we note that the cases of this Circuit cited in support thereof, Rinehart v. Brewer, 491 F.2d 705 (8th Cir. 1974) (per curiam) and Blake v. Pryse, 444...