COMMONWEALTH OF MASSACHUSETTS
WORCESTER, SS SUPERIOR COURT DEPARTMENT
CIVIL NO. 95-0779

RANDALL SHIELD WOLF TRAPP
WILLIAM WHITE FEATHER DURFEE
ROBERT FISH
RUBIN JETT
JAMES CROW FEATHER MANLEY
BERNARD R. BAILEY, SR.
CHRISTOPHER BOUSQUET,
Plaintiffs

V.

LAWRENCE DUBOIS
JOHN MARSHALL
P.J. CHALAPATAS
MICHAEL DORIAN,
Defendants

MEMORANDUM IN SUPPORT OF PLAINTIFFS'
MOTION FOR PRELIMINARY INJUNCTION

Where religious discrimination against a prisoner is alleged, or where it appears that prison authorities have restrained religious beliefs or practices of inmates without a showing of compelling state interest and without using the least restrictive means, judicial relief is available. Cooper v Pate , 378 US 546 (1964), Weaver v Jago, 675 F2d 116 (1982, CA6 Ohio), Native American Council of Tribes v Solem (1982, CA8 SD) 691 F2d 382.

In Jackson v. Hogan, 388 Mass. 376; 446 N.E.2d 692 (1983), the Supreme Judicial Court held that a civil rights action may lie for the wrongful confiscation of an inmate's property, especially if the confiscation is part of a plan to harass the inmate. The Court recognized that "prison inmates enjoy freedom of religion under the First and Fourteenth Amendments to the United States Constitution," and referred also to Massachusetts General Laws, C. 127, §88. Under the circumstances of that case (prison officials offered to make arrangements for him to be visited by a Muslim minister, and prisoner argued only that there was no necessity to deny him access to group services), the Court upheld summary judgment in favor of prison officials.

In the instant case, Plaintiffs challenge ongoing policies and practices of prison officials denying their free exercise of religion and discriminating against them on the basis of their religion. Plaintiffs' allege that their religion has been burdened by flagrant and willful harassment, unjustified by any institutional need or purpose, and in total disregard of Constitutional and statutory protections.

Religious Freedom Restoration Act Controls This Case

The controlling standard for judicial review in controversies involving prison rules that burden prisoners' religious practices is found in the Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488, (the "Religious Freedom Act" or the "Act"). The Act applies to all Federal and State law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after the enactment of the Act. 42 U.S.C. §2000bb-3.

Section 3 of the Act provides as follows:

FREE EXERCISE OF RELIGION PROTECTED.
(a) IN GENERAL.--Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).
(b) EXCEPTION.--Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person--
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
(c) JUDICIAL RELIEF.-- A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution. 42 U.S.C. §2000bb-1.
The purpose of the Religious Freedom Restoration Act of 1993 is to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972). The Act is unambiguous and the plain meaning of the statutory language requires application of the act to actions involving prisoners. See 42 U.S.C. §2000bb-1(a). The statutory definition of government encompasses prison officials. 42 U.S.C. §2000b-2(1). See also Congressional legislative history: S. Rep. No. 103-111, 103rd Cong., 1st Sess. (1993); H.R. Rep. No. 103-88, 103rd Cong., 1st Sess. (1993).

Bare Allegations of "Security" Insufficient to Sustain Restrictions

While, under the Act, "courts must give due deference to the expertise of prison administrators in establishing necessary regulations and procedures to maintain good order, security and discipline," S. Rep. No. 111, 103rd Cong., 1st Sess. 18 (1993), the mere assertion of security interests by prison officials, without elaboration concerning the magnitude of the interests involved, is insufficient to uphold challenged regulations or actions:

The state must do more than simply offer conclusory statements that a limitation on religious freedom is required for security, health or safety in order to establish that its interests are of the "highest order." Weaver, supra, 675 F.2d at 119; see also, S. Rep. No. 103-111, supra.

Prison administrators cannot merely brandish the words "security" and "safety" and expect that their actions will automatically be deemed constitutionally permissible conduct. Indeed, "inadequately formulated prison regulations and policies grounded on mere speculation, exaggerated fears, or post-hac rationalizations will not suffice to meet the Act's requirements." (citations omitted) Campos v. Coughlin, 854 F. Supp. 194 (S.D. NY., 1994).

The fact situation in Besh v. Dutton, 47 F.3d 1167 (C.A. 6, 1995), 1995 U.S. App. LEXIS 3584, 1995 WL 68774, (See Appendix) bears striking similarity to the instant case. One of the plaintiffs in Besh is a Native American Indian who, in accordance with Native American religious practices, "took up Religious Duty as Keeper of Sacred Pipe." The remaining plaintiffs -- who were not identified as Indians -- joined a "Native American religious circle" at various times between January of 1988 and February of 1990. The plaintiffs challenged prison regulations prohibiting them from engaging in various ceremonies and possessing ceremonial items.

The Court of Appeals in Besh, remanding to the district court for decision under the Religious Freedom Act, pointed out that "The Act does not create an exception as to people in prison."( citing legislative history). The District Court was ordered to apply the statutory standard to determine whether the challenged prison policies place a substantial burden on the exercise of religion, whether a compelling governmental interest is furthered by application of the policies, and whether application of the policies is the least restrictive means of furthering that interest.

Pipes and Other Items Sacred to Native Americans are Protected

Pipe ceremonies are common to a wide range of Native American societies. Scholars have noted the high degree of veneration of the pipe and its central place in religious practices. Commenting on the Northern Arapaho Flat Pipe, John G. Carter stated: "The Flat Pipe in the Arapaho mythology is really the creator, and is held by the Arapaho in greater veneration than the sun (citations omitted)." Carter, J.G., "The Northern Arapaho Flat Pipe and the Ceremony of Covering the Pipe," Smithsonian Institution, Bureau of Ethnology, Bulletin 119:69, at 73, 1938. The food which is blessed and eaten in honor of the pipe "is regarded in the same light as communion among Christians." Id., at 77.

"The pipe is a portable altar, and a means of grace ...." Joseph Epes Brown, The Spiritual Legacy of the American Indian (New York: Crossroad, 1982), at 44. "The mysteries of the peace pipe are so profound that the rite of smoking for the Indian can be compared to the Holy Communion for Christians." Id., at 45.

Luther Standing Bear's famous ethnography, Land of the Spotted Eagle (Lincoln: University of Nebraska, 1933, 1978), states:

But of all things held sacred and reverent, the pipe stood supreme in the minds of the Lakota people. ... All the meanings of moral duty, ethics, religious and spiritual conceptions were symbolized in the pipe. Id., at 201.
The Court of Appeals in Allen v. Toombs, 827 F.2d 563 (CA 9, 1987) described the pipe ceremony held in the Oregon State Penitentiary:

The Pipe Ceremony begins by the Pipe Holder and other participants purifying themselves and the pipe by burning sage or sweet grass. The Pipe Holder then fills the pipe with tobacco, praying to various spirits. The other participants pray individually. The Pipe Bearer lights the pipe and passes it to the other participants. When the bowl is empty, the Pipe Bearer cleans it and takes apart the pipe, thereby ending the ceremony. The Pipe Ceremony is held once a week for Native American inmates in the general prison population. The ceremony is conducted either by a religious leader from outside the penitentiary, or by an inmate Pipe Bearer. Id., at 565, n4.
In Reinert v. Haas, 585 F. Supp. 477 (S.D., IA, 1984), inmates -- some American Indian by blood, some not -- challenged a restriction on wearing of headbands as an aspect of their American Indian spiritual practice. The court found as follows:

Indian religion and Indian culture are one and the same. It is a way of life that is practiced constantly. Its essence, as a way of life, is living in harmony with all of one's surroundings. The circle is highly significant in Indian culture and religion, and this significance is expressed in the "cosmic circle," a visual representation of basic forces of life and the universe. The headband is a symbol of the cosmic circle; however, the headband is not just symbolic, it is sacred.

An adherent of the Native American Religion should always keep something sacred with him, such as a headband. There are other sacred objects that can be carried, such as a small cosmic circle (roughly similar in appearance to a four-spoked wheel). However, the choice of a sacred object is a highly individual matter, and the object chosen should be one with which the person is most comfortable. The need is commonly and traditionally filled by the headband. Id., at 479.

Preliminary Injunction is Appropriate Remedy

In granting an injunction in favor of the prisoners in Reinert, the court said:

The threat of harm to plaintiffs is irreparable. Their religious exercise rights are infringed each day that they are prohibited from wearing headbands. Id., at 481.
Similarly, Plaintiffs in the instant case are undergoing irreparable harm from the denial of and discrimination against their spiritual practice. Controlling law clearly protects Plaintiffs' access to and use of ceremonial items. Defendants have shown no compelling state interest to justify their discriminatory and burdensome actions against Plaintiffs' religion. The seriousness of the rights in question, and the likelihood that Plaintiffs will prevail at trial sustain the appropriateness of a Preliminary Injunction in this case. For the reasons stated, a Preliminary Injunction should be issued.

Respectfully Submitted,
By their Attorneys,

Robert T. Doyle, Jr.
Doyle & Mansfield
114 Main Street
Northampton, MA 01060

Peter P. d'Errico
340 Long Plain Road
Leverett, MA 01054

William A. Norris
53 Center Street
Northampton, MA 01060

============Appendix (Besh case) omitted.============

Memo filed: April, 1995; preliminary injunction ordered, May, 1995.

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