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'Exaggerated Response to Legitimate Objectives': Davis Wright Tremaine Leads Pro Bono Win in Battle Over Jail's Mail Policy

law.com, April 10, 2023. https://www.law.com/2023/04/10/exaggerated-resp...

"Very few organizations can commit the time and resources to litigating these cases for the long haul to ensure the outcome and that the First Amendment's respected and that the court does the proper analysis. It's been a long time," one of the pro bono attorneys on the case, Caesar D. Kalinowski IV, an associate at Davis Wright Tremaine, told Law.com.

Large damage awards certainly are nice—but sometimes, advocating for basic rights of incarcerated individuals to have access to books and magazines brings another level of satisfaction for attorneys and their clients.

Following several years of litigation and appeals on a First Amendment case, U.S. District Judge Timothy L. Brooks of the Western District of Arkansas recently ruled in favor of the publishers of Prison Legal News, declaring the mail policy of Arkansas’ Baxter County Detention Center (BCDC) to be unconstitutional. It’s another win for the publisher, Human Rights Defense Center (HRDC), as it advocates for such cases and effectuates change to illegal mail policies at correctional facilities across the country.

First Amendment jail cases are few and far between as it is, but it’s also the first such case brought by HRDC in Arkansas, alleging violations of First Amendment rights and due process against the jail for its mail policy that limited all mail to post cards. The county refused to deliver issues of Prison Legal News, informational packets, order forms, court opinions, or other mail to the inmates, according to an order filed March 31 in the U.S. District Court for the Western District of Arkansas.

A U.S. Supreme Court cases from 1979, Bell v. Wolfish, and 1989, Thornburgh v. Abbott, established that prisoners have a right to freedom of speech under the First and Fourteenth Amendments “that extends to communication with those beyond the prison walls,” but still these cases bring their legal hurdles.

“This highlights some of the issues, there’s just not the time, the dedication, the funds, especially for an individual prisoner who may not even be in there that long,” one of the pro bono attorneys on the case, Caesar D. Kalinowski IV, an associate at Davis Wright Tremaine, told Law.com. “Very few organizations can commit the time and resources to litigating these cases for the long haul to ensure the outcome and that the First Amendment’s respected and that the court does the proper analysis. It’s been a long time.”

Kalinowski, the rest of the legal team, and HRDC are all happy with the ultimate outcome; the judge only issued $1 nominal damages in HRDC’s favor.

“This is the tough part about any First Amendment case. This goes back to why these cases aren’t litigated because it’s hard to quantify First Amendment rights,” he explained. “We’ve said in other trials, ‘You can’t go down to the grocery store and pull some First Amendment off the shelf.’ So how do you quantify that sort of thing? But I think ultimately, for HRDC, vindicating the right is the concern, whether it’s nominal damages or some compensatory damages for the amount of subscriptions lost, is not the issue. The issue is whether they can get this important speech to these prisoners and do for us, the declaration, the recognition of nominal damages, and the injunctive relief which confirms that HRDC does get to send its publications to those prisoners, is the important relief that we were seeking.”

Paul Wright, the founder and executive director of HRDC, agreed and said BCDC was a particularly isolating facility for inmates, because in addition to no books, newspapers or magazines, there were no televisions and its library consisted of a milk crate with a few worn books. The only way for inmates to access local news was by way of a local radio station, which the prisoners had access to for approximately 30 minutes a day, he said.

While this lawsuit was filed in 2017, it was litigated through the COVID-19 pandemic, and HRDC’s publications provided information to those who are incarcerated about how to stay safe, realities of a prisoner, or what was happening with the pandemic, Wright told Law.com.

“They weren’t able to get that. I think that’s a really critical thing to that we need to keep in perspective: their ability to communicate with the outside world,” Wright said.

While the court concluded that Baxter County had not provided the due process that HRDC should have been afforded, it initially rejected the plaintiff’s First Amendment claims and the case proceeded to trial in January 2019. However, after a bench trial, Brooks held that the postcard-only policy was reasonably related to “legitimate penological goals and did not violate HRDC’s First Amendment rights,” the district court’s order said.

“We appealed to the Eighth Circuit and primarily we pointed out that this constituted a total book ban. The Supreme Court has mentioned a number of times that a total book ban is problematic,” Kalinowski said.

The county maintained that returning to a letter mail policy would increase the risk of contraband and impair efficiency, and that inmates may use books, magazines and newspapers to clog toilets or jam doors, the order said.

The U.S. Court of Appeals for the Eighth Circuit agreed with HRDC, reversing the district court’s dismissal of the First Amendment claim and remanded for further proceedings to evaluate with each Turner v. Safley (1987) factor including: “(1) whether a ‘valid rational connection’ existed ‘between the prison regulation and the legitimate governmental interest put forward to justify it’; (2) ‘whether there [were] alternative means of exercising the right that remain open’; (3) ‘the impact accommodation of the asserted constitutional right [would have had] on guards and other inmates, and on the allocation of prison resources generally’ and (4) whether there were ‘ready alternatives’ to the policy,’” the order cited.

The district court considered additional testimony in September and issued its ruling March 31, finding the county’s policy “far-reaching,” and an unjustified “intrusion into [the] publishers’ First Amendment rights.”

“Here, the County’s 2017 postcard-only policy simply went too far. By barring all publications in the Baxter County Jail—and preventing all publishers from distributing any publication to inmates—the County’s policy proves to have been an exaggerated response to legitimate objectives,” Brooks wrote. ”While some elements of the policy may have been justified, its scope was not. Deference to prison administrators cannot overcome this defect. The court finds the county’s 2017 policy of rejecting HRDC’s publications mailed to specific inmates violated HRDC’s constitutional rights.”

Wright commended the legal team in their work on this, and other cases around the country. Anecdotally, he said in other litigation, correctional facilities with policies that have been deemed unconstitutional may have several others in that state with identical policies. Some facilities are efficient to bring its policies in compliance, while others may be reluctant to change—sometimes leading to further litigation with HRDC, Wright explained.

“Justice should be access for everyone, not just those who can afford a big firm like Davis Wright Tremaine. We’re fortunate here, we do a lot of pro bono work on behalf of smaller organizations like HRDC,” Kalinowski said.

HRDC was also represented by Bruce E. H. Johnson, of Davis Wright Tremaine; Paul J. James of James & Carter; and HRDC attorneys Sabarish P. Neelakanta, Daniel Marshall and Hara Fischbein.

Messages seeking comment from Baxter County’s attorneys, Jason E. Owens of Jason Owens Law Firm, and Thomas J. Diaz, of Rainwater, Holt, & Sexton, were not immediately returned.

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