(II) Detention

(A) Pre-trial detention (jail)

1st Circuit

Smith v. Sampson, 349 F. Supp. 268 (D. N.H. 1972). (Misc).

Two pre-trial detainees were forcibly shorn of their cranial and facial hair by jail personnel in furtherance of jail grooming policies that purported to support cleanliness, aid in in-jail identification, and prevent the transport of contraband. The district court noted that the prisoners were awaiting trial and so were presumed innocent, and the jail grooming rules weren't justifiably related to the goals that they were supposed to serve, and so held that the plaintiff's forcible hair removal was in violation of their rights under the due process clause of the Fourteenth Amendment of the U.S. Constitution. The court found Richards v. Thurston, 424 F.2d 1281 (1st Cir. 1970) to be influential.

2nd Circuit

New York

People v. Krueger, 306 N.Y.S.2d 359 (Sup. Ct. 1969). (Islam).

Solitary confinement was imposed upon a prisoner awaiting trial, unconvicted of a crime, because he refused to shave. The defendant claimed that the restrictive hair regulation was based on a fear that heavy hair may conceal contagious skin conditions. That the prisoner's basis for refusing to shave was substantially based on his practice of Islam was undisputed. The court found that the prisoner's treatment constituted a violation of his equal protection rights inasmuch as the defendant admitted that a similarly situated orthodox Jew would not have been treated the same.

New York

Christman v. Skinner, 323 N.Y.S.2d 767 (Sup. Ct. 1971). (Misc).

The plaintiff made a motion for a preliminary injunction preventing his jailors from enforcing a ban on facial hair and long cranial hair. The jail management's justification for its policies was that they were well based on concerns for sanitation and cleanliness. Further, the defendant said that eliminating the restrictive hair regulations would increase the prevelance of the concealment of contraband, discrimination, lack of prisoner discipline and morale and would incite the other prisoners to fight and riot, thereby jeopardizing the safety of all prisoners. The court, citing to Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969), recognized a person's freedom to wear his hair, cranial and facial, in any length or style he pleases under the U.S. Constitution. Noting that the pretrial detainee is presumed innocent, and that jail management hadn't supported it's contentions of the propensity of shaggy prisoners to run amok, the court granted the prisoner's request for the injunction. The court also found Richards v. Thurston, 424 F.2d 1281 (1st Cir. 1970) to be influential.

New York

People v. Vega, 51 A.D.2d 33 (N.Y. App. Div. 1976). (Misc).

A prisoner who was in custody in one jurisdiction was ordered by a trial court in a neighboring jurisdiction to remove his beard and appear in a lineup so as to facilitate his identification as a criminal. The appellate court, noting that the man hadn't been charged with any crime in the second jurisdiction, granted his motion to vacate the order. The appellate court recognized the man's constitutional right to determine his facial appearance under the U. S. Constitution, citing to, inter alia, Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969). The court's opinion noted that the fact that the forcible removal of a beard imposes on the suspect a physical change in his appearance which denies him the right to an immediate return to the form of facial hair which he wore prior to his appearance in the lineup.

4th Circuit

Virginia

Palmer v. Virginia, 416 S.E.2d 52 (Va. Ct. App. 1992). (Misc).

The appellate court adjudicated defendant's appeal of the fact that the trial court had ordered him to cut his cranial hair and to remove his beard. This order was made due to the fact that a witness indicated that she thought the defendant was the perpetrator, but was unsure because his "appearance had changed so as to 'shock' her". The defendant's objection was based on his belief that his First Amendment right to express himself freely had been violated. The appellate court found that the defendant had worn his hair and beard not for the purpose of expressive conduct, but rather as personal preference. As such, citing to U. S. v. O'Brien, 391 U.S. 367 (1968) and characterizing the change required as temporary, the appellate court found that no First Amendment violation had been occasioned by the trial court's order.

10th Circuit

United States v. Lamb, 575 F.2d 1310 (10th Cir. 1978). (Misc).

The trial judge ordered that the defendant shave his beard where testimony indicated that Lamb had been clean-shaven at the time of the robbery and that, therefore, his beard represented an attempt to disguise his appearance to prevent trial identification. The defendant appealed this ruling as a violation of his 5th Amendment right against self-incrimination. The appellate court upheld the trial court's order comparing the defendant's facial hair to a piece of clothing, a handwriting sample and a blood sample. The court cited to no case directly on point.

(B) Post trial detention (prison)

US

Goulden v. Oliver, 442 U.S. 922 (1979). (Jew).

Within the context of post trial detention (i.e., prison) male hair rights, only one case has received any substantive attention by the United States Supreme Court, and that was in the form of a dissent to a denial of a petition for a writ of certiorari. In the case at the base of Mr. Goulden's petition, Plaintiff presented as an orthodox Jew who was forced by Alabama prison authorities to cut his hair and shave. Plaintiff stated through his 42 U.S.C. § 1983 filing that, in so doing, the respondent violated his rights to religious freedom under the 1st and 14th Amendments to the United States Constitution. Plaintiff's case had been dismissed in the trial court based on the finding that, as a matter of law, Plaintiff had not stated a claim upon which relief could be granted. Note that it appears that Plaintiff had never had benefit of legal counsel and had been filing pro se through all the steps of his litigation.

Mr. Justice Blackmun, joined by Mr. Justice Brennan argued in their dissent that they believed that Goulden's appeal should have been entertained inasmuch as they were unprepared to assume, as a matter of law, that "there is no set of facts that would entitle him to relief." They would have remanded the case with instructions to allow Goulden an adjudication on the merits of his complaint.

Technically, a denial of cert. is deemed to carry no precidential significance. However, inasmuch as sixty to seventy percent of the cases accepted for review are reversed* some infer that a denial of cert. suggests the Court's tacit approval of the result below. In this view, Goulden's denial of cert. is seen as indicating that the Court impaneled in 1979 felt that when prison regulations denying male hair rights arguably promote cleanliness and personal identification, they outweigh any religious freedom concerns that the prisoner can cite under the U.S. Constitution.

* (see Stern et al, Supreme Court Practice. 195 n. 59 (7th ed. 1993), as reported in Lockhart et al, Constitutional Law 54 (8th ed. 1996).

DC Circuit

No male hair law cases addressing the post trial detention environment have been reported in the DC Circuit.

1st Circuit

No male hair law cases addressing the post trial detention environment have been reported in the First Circuit.

2nd Circuit

Sostre v. Preiser, 519 F.2d 763 (2nd Cir. 1975). (Misc).

The plaintiff in this case appears to have been represented by licensed counsel. In this case the prisoner plaintiff complained of having been placed in solitary confinement for about 17 months for his refusal to shave. He also complained of the fact that, in order for him to utilize the 1 hour per day of out-of-cell time that he was allotted as a segregated prisoner, the prison system required that he be prepared to submit to rectal searches going and coming from the "yard." The court found it necessary to remand this case to the trial court for development of the record, but in dicta it seemed to suggest an intermediate level of review as being appropriate for resolution of the questions presented.

Maguire v. Wilkinson, 405 F. Supp. 637 (D. Conn. 1975). (Naz).

The plaintiff party in this case was assisted by a "law student intern." In this case, the involved prison system had a general no-beard policy, but would allow exemptions for religionists who were settled in their practice prior to incarceration. Apparently anyone who claimed to have adopted a religion, after being incarcerated, that required abstention from hair cutting, was irrebuttably presumed to be insincere. Secondarily, the prison system may have generated this policy as an administrative expediency in that with this policy fewer sincerity determinations would be called for under like circumstances. Those who, like the plaintiff in this case, converted during incarceration were foreclosed from practicing their religion insofar as abstention from haircutting was involved. The court found this policy to be facially unconstitutional in that it worked a violation of the plaintiff's due process and equal protection rights. The court stated that administrative convenience was not an adequate justification for such a policy.

Burgin v. Henderson, 536 F.2d 501 (2nd Cir. 1976). (Islam, Sunni).

In this case the pro se plaintiffs-prisoners claimed that the prison system's no-beard rule interfered with their right to worship as Sunni (i.e., orthodox) Muslims. The trial court judge dismissed the Plaintiff's complaint without requiring the defendant to respond to the complaint. The appellate court merely remanded the case for "development of the record." Citing to Sostre, supra, the court asserted the importance of generating a record that showed an examination of such pertinent issues as exactly what is the rule, how is it applied, whether exceptions are allowed, and whether the goals proffered by the defendant are rational concerns and could be addressed through less intrusive means.

Monroe v. Bombard, 422 F. Supp. 211 (S.D.N.Y. 1976). (Islam, Sunni).

In this case, in which the prisoner-plaintiff party was apparently represented by licensed counsel, we find one of the rare prison "wins" in this type of litigation. The plaintiffs were Sunni Muslims who complained that the prison system's no-beard rule infringed upon their 1st Amendment right to practice their religion freely. The prison system only allowed exceptions from the no-beard rule that were based on medical necessity, and then only allowed beard length of 1/4 inch. Medical authority testified that beard growth allowance was the treatment of choice for pseudo folliculitis barbe and that, sometimes, 1/4 inch of beard growth is not enough to effectively prevent the infections that result from that condition. The court seemed to react extra negatively to the overall fact that the prison system had acted "arbitrarily and capriciously" in its administration of medical treatment in this context. The court declared that "Inmates who must grow beards for medical reasons are entitled to have that right regulated by competent medical advice, not by administrative fiat."

As to the religious claim, the court noted that a facial hair requirement, for example, need not be a mandatory requirement of a certain religious practice in order for it to demand respect. The court noted that the prison administration had meted out punishments for failure to shave that included refusing to allow the offending prisoners to complete extra-facility medical appointments. The court, in this case, seemed to require a level of scrutiny of at least the intermediate level, though it could be argued that the court merely found the defendant's reasoning for the rule to be irrational. The court specifically held that a regulation that impacted a prisoners religious rights, in order to be upheld, must have an important objective and must be reasonably adapted to achieving that objective, and the regulation must be narrowly tailored. The court found that the no-beard rule was in violation of the prisoner's 1st Amendment free exercise rights.

Moskowitz v. Wilkinson, 432 F. Supp. 947 (D. Conn. 1977). (Jew).

The plaintiff-party in this case was represented by licensed counsel. The court noted that a no-beard rule such as the one enforced by the defendant must be justified as being more than just rationally related to advancing a legitimate objective. The defendant had argued that the level of observance required of an orthodox Jewish male as to beard allowance was not as absolute as claimed by the plaintiff, but the court responded by saying that it was the plaintiff's own religious beliefs that should be considered, "not anyone else's." The court also rejected the notion that inconsistent practice is a per se indicator of insincerity. The court took special notice of a respected survey that showed that about half of the nation's state prison systems allowed beards. The court found that this fact cast significant doubt on the government's claim that the enforcement of the rule was reasonably necessary to the satisfaction of its legitimate goals. The court seemed to utilize an intermediate level of scrutiny in its analysis of the constitutionality of the no-beard rule as applied against sincere religionists and found the rule to be unconstitutional under the 1st Amendment.

Phillips v. Coughlin, 586 F. Supp. 1281 (S.D.N.Y. 1984). (Ras).

In this case the plaintiff was represented by licensed counsel. He presented as a Rastafarian and claimed that the prison's rule mandating an initial shave and haircut violated his free exercise rights under the 1st Amendment. By the time of this trial, the only issue left to be resolved was whether the plaintiff should take damages for the initial forced shave that he endured. The court ruled against him on this point. The court found that the initial-shave requirement was sufficiently rationally related to legitimate penological interests in indirectly preventing escapes, and in capturing escapees. Further, it appeared to be the least intrusive means for satisfying the goal. Therefore, the intrusion upon the prisoner's free exercise rights was justified and constitutionally acceptable. The court noted in dicta that a justification for an initial haircut for identification purposes would presumably be significantly less likely to be shown to be necessary than would an initial shave. (Cranial hair can be pulled back in order to effectively simulate a short haircut.)

Fromer v. Scully, 874 F.2d 69 (2nd Cir. 1989). (Jew).

This case, in which the plaintiff was represented by licensed counsel, shows the influence of O'Lone and Turner in litigation of this type. O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987), Turner v. Safely, 482 U.S. 78 (1987). In those decisions of the U.S. Supreme Court, a "least restrictive alternative" test was explicitly rejected and the 4 part test of Turner v. Safely, supra, was effectively reaffirmed. In the case that generated the current appeal, the trial court found for the plaintiff-prisoner even after applying the Turner 4 part test. Turner v. Safely, supra. The appellate court reversed finding that the trial court had not given the high level of deference to prison administration officials that had been mandated in O'Lone, supra. The court stated that the prison system defendant in this type of action has only a bare burden of production, but has no burden of persuasion. The level of analysis mandated is that of the most lenient level of rational basis scrutiny. This case is quite instructive in its presentation of how it slaps down each point of the lower court's findings on the four Turner analysis prongs. Turner v. Safely, 482 U.S. 78 (1987).

Benjamin v. Coughlin, 905 F.2d 571 (2nd Cir. 1990). (Ras).

(The case below can be found at 708 F. Supp. 570.) In this case the prisoner-complainant party, represented by licensed counsel, was able to successfully counter a policy of the New York prison system that required initial haircuts for identification photograph purposes. An interesting application of the doctrine of offensive non-mutual collateral estoppel is presented. More generally important, though, the appellate court upheld the lower court's finding that this particular rule (which required an initial haircut, but allowed immediate, permanent, unmolested regrowth) violated the prisoner's free exercise rights. Interestingly, if the prison had promulgated a rule forbidding long hair altogether, such a rule would probably have withstood constitutional scrutiny under O'Lone/Turner. O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987), Turner v. Safely, 482 U.S. 78 (1987). The initial haircut rule combined with the allowance of future, unrestricted hair growth, however, was found to be unacceptable in that the specific goal sought could have been achieved at de minimis cost by simply tying the prisoner's hair back during the taking of the photo.

New York

Solomon v. Coughlin, III, 456 N.Y.S.2d 125 (Sup. Ct. 1982). (AITM).

This AITM plaintiff filed his complaint pro se. The prison system required that prisoners get an initial haircut upon entry to the system so that an identification photograph could be taken. Prisoners were allowed to leave their hair uncut after intake, however. With this last fact in mind, the court found that requiring an AITM to cut his religiously mandated hair did not impermissably restrict his free exercise rights.

New York

Overton v. Dept. of Corr. Serv., 499 N.Y.S.2d 860 (Sup. Ct. 1986). (Ras).

The Rastafarian plaintiff involved in this case had been convicted and sentenced to long term incarceration. He was represented by counsel. The prison system required that, as a male prisoner, he receive an initial haircut and shave "for reasons of health and sanitation as well as to permit the taking of the initial identification photograph." The plaintiff claimed that the restrictive hair regulations violated his free exercise rights and his right to equal enforcement of the laws. The defendant prison system held that Rastafarianism was not a "bona fide" religion and so the plaintiff's basis for demanding special treatment regarding the restrictive hair regulations was not properly grounded. The appellate court rejected this finding. The court found that the initial question presented was whether the plaintiff's beliefs were religious in nature. It noted the propriety of using "the Seeger test" in this context, which asks whether the plaintiff's beliefs are based upon a power or being, or upon a faith, to which all else is subordinate or upon which all else is ultimately dependent." United States v. Seeger, 380 U.S. 163 (1965). The court held that Rastafarianism passed this test.

In determining the constitutionality of the prison's restrictive hair regulations as they impacted the plaintiff's free exercise rights, the court noted that the appropriate test asked whether no reasonable method exists by which appellant's religious rights can be accommodated without creating bona fide security problems. The court found that the requirement for a haircut was unreasonable in that sanitation needs could be satisfied by requiring bathing, and that the need for a fully revealing intake photograph could be satisfied by momentarily tying the plaintiff's hair back. The need for this intake identification photograph did justify the initial shave requirement, though, as the court found that there was no reasonable, effective alternative. The court failed to address the plaintiff's equal protection claim (based on gender discrimination in the hair regulations) as it had found the prison's cranial hair regulations to be invalid on free exercise grounds.

3rd Circuit

Poe v. Werner, 386 F. Supp. 1014 (M.D. Penn. 1974). (Misc).

The prisoner in this § 1983 action alleged that the state prison's restrictive hair regulations violated his constitutional rights under the due process clause and the equal protection clause of the Fourteenth Amendment. A three judge panel decided the case. Specifically, he argued that he was being discriminated against as a male in that the prison system differentiated prisoners based on gender for the imposition of restrictive hair regulations. The defendant prison administration identified the governmental interests at stake as those of (1) the preservation of order and discipline, (2) the maintenance of institutional security, (3) and the rehabilitation of prisoners. citing to Procunier v. Martinez, 416 U.S. 396 (1974). More specifically, the defendant presented evidence that the regulation addressed concerns regarding (1) hygiene, (2) homosexuality, (3) general unrest among the inmates, (4) contraband secretion, (5) prisoner identification, (6) rehabilitation derived from personal discipline. The court indicated that it was particularly impressed with the importance of justifications (1), (2), and (4). The court held that the prisoner hair regulations furthered the substantial penal interests of security, order, prisoner hygiene and rehabilitation and that these governmental interests outweigh the arguably protected constitutional right of personal governance of hair length and style.

As to the gender discrimination /equal protection claim, the court found no such constitutional violation inherent in the disparate treatment imposed by the gender based hair regulations. The court noted as an initial matter that the prisoner hair regulation does not impinge on the exercise of a fundamental right and no suspect classification is created. The court further noted that an intermediate level of scrutiny has been deemed appropriate in gender discrimination analysis. It found that the hair regulations at hand were acceptable in their differential treatment of men and women in that they were based on a ground of difference actually having a reasonable and substantial relation to the legitimate object of the regulation. As justification for allowing the differential treatment, the court stated that men are more violent than women and that men care less about their appearance and so are dirtier.

This case report is perhaps most valuable both for its demonstration of how a prison administration and a US District Court can justify blatant sex discrimination and, also, for its presentation of the dissent by Judge Muir that puts the lie to the prison administration's forced justification.

Dreibelbis v. Marks, 675 F.2d 579 (3rd Cir. 1982). (Religion).

Dreibelbis v. Marks, 742 F.2d 792 (3rd Cir. 1984). (Religion).

In the first Dreibelbis case, the prisoner alleged that the (Pennsylvania State) prison system's restrictive hair regulations violated his free exercise rights, but the trial court dismissed the prisoner's suit as frivolous before developing a record. The prisoner appealed pro se and the appellate court reversed the dismissal.

Following remand, the trial court entered summary judgment for the defendant. The defendant appealed pro se. The prisoner presents as an ordained minister of a religious denomination that has as one of its tenets the complete prohibition of hair cutting. The court had accepted the plaintiff's assertions that his religious beliefs were sincerely held and required that he refrain from hair cutting. In reply to the prisoner's pleadings, the defendant prison administrator submitted an affidavit in which he set forth the potential for disruption of prison security that the restrictive hair regulations were intended to prevent. Specifically mentioned were (1) within-facility identification to avoid inappropriate release/escape, (2) contraband secretion, (3) homosexual activity control, (4) sanitation as to food service prisoner-workers, (5) general safety concerns for misc. prison-workers. It appears from the appellate court's case report that this pro se litigant attempted to support his First Amendment claim solely upon a collection of affidavits from Pennsylvania prison system prisoners that indicated that the hair regulations were not uniformly enforced. The court found that evidence to be irrelevant to the prisoner's chosen claim. As the prisoner had (apparently) not offered any relevant evidence to rebut the defendant's support for its policies, the trial court entered summary judgment for the defendants and the appellate court affirmed. In this decision, the court relied substantially on the decision in Poe v. Werner, supra.

Cole v. Flick, 758 F.2d 124 (3rd Cir. 1985). (AITM).

This case slightly predates that of Wilson v. Schillinger, infra. In the best view, though, it could be said that they were decided contemporaneously. Nothing is taken from this case that can not be found in Wilson, and Wilson is the best reference for the issue under discussion.

This case involves an AITM who utilized a § 1983 action to present his claim that his free exercise rights were violated by the restrictive hair regulations of the Pennsylvania prison system. The religious nature of the prisoner's beliefs, and the sincerity with which he held them were not challenged by the defendant. The plaintiff-prisoner won at the trial court level with the judge of that court using the word "incredible" to describe the attempts made by the prison administration to justify their restrictive hair regulations. At the appellate level, however, the decision was reversed and the case was remanded with directions that the trial court enter judgment for the prison administration.

On appeal, the court pointed out that the defendant in such a case has only a burden of production that may be met with bare oral testimony. Further, the decisions of prison administrators are to be given great deference. The plaintiff's burden becomes that of proving through substantial evidence that the administrator's beliefs are unreasonable or that their response to their legitimate concerns is exaggerated. As to the level of review to be used at the appellate level, the court noted that whether a regulation represents an exaggerated response to a legitimate security concern, and whether a security concern is itself unreasonable, are mixed questions of law and fact. This may help to explain the apparent result that, as a practical matter, when a case of this nature is found for the prisoner, the review seems in retrospect to always have been made de novo. The court cited to St. Claire in noting that, in the 3rd circuit, the notion had been rejected that prison officials must choose the least restrictive regulation consistent with prison discipline. St. Claire v. Cuyler, 634 F.2d 109 (3d Cir. 1980).

It appears that the prisoner was pro se at the trial level. The prison administrators attempted to justify their restrictive hair regulation with reasons related to (1) general prisoner worker safety, (2) prisoner food service worker sanitation, (3) general prison unrest at the granting of special privileges, (4) homosexuality, (5) contraband secretion, (6) prisoner identity, both in-facility and post escape. Several prison officials testified, including one who held a doctorate in psychology and who was allowed to testify as an expert witness in that field. The evidence offered by the defense appeared to be mostly bare oral testimony supplemented by some sort of evidence that the hair regulations were strictly enforced by other Pennsylvania prisons. The prisoner responded "principally by developing on cross examination and by documentary proffers the fact that there were (three) inmates at (the prison) with file photographs depicting them with long hair and full beards." The appellate court found that the plaintiff had not met his burden of putting down the administrator's defense. For example, the prisoner had offered no evidence to rebut the administrator's homosexual activity justification. Finding particularly persuasive the arguments of the prison administrators relating to identification, homosexuality, and contraband, the court ruled that the justifications offered by the prison administrators were more than sufficient to conclude that the hair length directive was not an invalid infringement on the prisoner's First Amendment free exercise rights.

Wilson v. Schillinger, 761 F.2d 921 (3rd Cir. 1985). (Ras).

In Wilson, a Rastafarian state prison inmate brought a 42 USC § 1983 action against prison officials alleging that their prohibition of long cranial and/or facial hair violated his free exercise rights under the 1st/14th Amendment. He also alleged that his 14th Amendment right to equal protection was violated in that the hair regulations were not enforced against AITMs and some other miscellaneous inmates. The plaintiff won at the trial court level on his free exercise claim, but the appellate court reversed.

The court noted that prisoners' exercise of First Amendment freedoms may be curtailed when, in the informed judgment of prison officials, such exercise poses "the likelihood of disruption to prison order or stability, or otherwise interferes with the legitimate penological objectives of the prison environment. Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 132 (1977).

The court enunciated the tests applied to a suit of this nature. The first question is that of whether the prisoner/plaintiff's beliefs that are alleged to be religious are to be respected as such and thus accorded 1st Amendment protection. In order to answer that question, the court must determine whether the avowed beliefs are (1) sincerely held and (2) religious in nature in the claimant's scheme of things. Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025, 1029-1030 (3rd Cir. 1981). In the case at hand, the defendant did not dispute that the plaintiff had satisfied this two pronged test, so no analysis was performed by the court.

The court laid out the burden-of-proof assignment that takes effect after the point where it's established that the prisoner is a bona fide religionist who is impacted negatively as such by prison hair regulations. The state needs only to produce evidence that to permit the exercise of First Amendment rights would create a potential danger to institutional security. This evidence may consist of expert testimony from the responsible officials, provided they testify to opinions that are held sincerely and are arguably correct. Once the state has met this burden of production, then the courts must defer to the expert judgment of the prison officials unless the prisoner proves by substantial evidence that the officials have exaggerated their responses to security considerations or that their beliefs are unreasonable. St. Claire v. Cuyler, 634 F.2d 109 (3d Cir. 1980).

Upon appeal, the relevant question becomes that of how will the appellate court scrutinize the trial court's decision. The court's ultimate determinations of (1) whether a proffered justification either supports the regulation or does not, and (2) whether the prisoner has met his burden of proving by substantial evidence that the proffered justification, if prima facie provided, is exaggerated or unreasonable, are conclusions of law. St. Claire v. Cuyler, 634 F.2d 109 (3d Cir. 1980), Dreibelbis v. Marks, 742 F.2d 792 (3d Cir.1984). The appellate court in the present case stated that "Initially, the trial court acts as factfinder, weighing evidence offered by the prison officials in support of a regulation and evidence offered by a prisoner that the regulation is unnecessarily restrictive in light of its objectives." "Regarding the factual component of the determinations, we must defer to the district court unless its findings are clearly erroneous." "Regarding the ultimate legal conclusion, our scope of review is plenary." The three immediately foregoing statements of the court notwithstanding, note the following well: after examining the case under discussion, it seems apparent that if the trial court rules for the prisoner, then the case will be reviewed de novo. The level of review exemplified by this case makes the scrutiny used in Wickard v. Filburn look strict by comparison. Wickard v. Filburn, 317 U.S. 111 (1942).

In the present case, the defendant offered four justifications for its restrictive male hair policies that, sequentially, related to (1) contraband secretion, (2) hygiene (louse infestation, infection), (3) homosexual rape, and (4) post escape identification. The appellate court found that these justifications were "arguably correct" and that there was "no suggestion that they (were) not sincerely held." Thus, the defendant successfully had satisfied its burden of production, and had successfully rebutted, by that point, the plaintiff's prima facie case. The burden then shifted to the plaintiff. The plaintiff, apparently pro se at the trial court level, did not introduce any expert testimony to demonstrate that the prison officials had exaggerated their response, or were insincere in their beliefs. Rather, the only evidence that plaintiff produced was his own testimony and the cross-examination of defendant's witnesses. The plaintiff was able to establish to the satisfaction of the trial court, that other inmates had effectively been allowed to violate the hair regulations without any significant increase in security problems resulting from same. The appellate court ruled, however, that the defendants had only to prove the potential, as opposed to actual, security problems to be prevented by the restrictive hair regulations. The plaintiff's showing of no actual harm resulting from long haired male inmates did not suffice to rebut the potentiality of harm. The fact that women prisoners were not required to wear short hair was dismissed based on the notion that male prisoners present significantly greater and qualitatively different security threats. see Poe v. Werner, 386 F. Supp. 1014 (M.D. Penn. 1974). As to the plaintiff's equal protection claim, the appellate court found that there was no finding by the trial court of the necessary element of an intent or a purpose to discriminate.

4th Circuit

Collins v. Haga, 373 F. Supp. 923 (W.D. Va. 1974). (Misc).

In this case the court notes that "The petition suffers from an infirmity frequently present in pro se complaints, in that it contains many conclusory allegations lacking in factual verification." As such, the case merited summary judgment for the defendants. The only substantial value to be derived from an examination of this case relates not to any findings on male hair law, but rather to its indictment against the ability of the typical prisoner to craft effective pleadings unaided by licensed counsel.

Williams v. Batton, 342 F. Supp. 1110 (E.D.N.C. 1972). (Religion).

This case provides us with little more insight than Collins, supra. Here, the pro se plaintiffs alleged violations of their rights under the First, Eighth and Fourteenth Amendments of the U.S. Constitution. Upon elucidation, however, their hair claim amounted to a bare submission that the prison's requirements that the prisoners remain "clean shaven" and that their hair be of short to moderate length violated their right to practice some unspecified religion, constituted cruel and unusual punishment, and deprived them of property without due process. The court dismissed the suit as a matter of law. The court said that the prison's interests in identification of prisoners, maintenance of hygiene, and prevention of the secretion of contraband justified the prison's regulations.

Howard v. Hogan, 348 F. Supp. 1204 (E.D. Va. 1972). (Liberty).

Of the two plaintiffs in this case, one was pro se. The plaintiffs' allegations of constitutional rights violations were based on their right to make manifest their "personal preference" in facial presentation. Therefore, the court found, no First Amendment issues arose. The court based it's decision to consider the plaintiffs' case on its identification of a possible constitutional right to liberty based on the Ninth Amendment. However, the case was dismissed based on the court's finding that the prison regulations were well based on the prison's goals of fostering orderly administration, the need for ease of prisoner identification and the desire to thwart the secretion of contraband.

Gallahan v. Hollyfield, 670 F.2d 1345 (4th Cir. 1982). (AITM).

In this case the Cherokee prisoner was represented by professional counsel. Here, the plaintiff prevailed in his suit to enjoin the prison administration from forcing him to cut his cranial hair. His basis for complaint was that forced or coerced cranial cutting would violate his free exercise rights. The Court of Appeals held that the prison hair regulations indeed were violative of the plaintiff's rights in that his beliefs as to the religious significance of his unshorn hair were sincere and valid, and the purported justifications, even if legitimate, weren't the least restrictive alternatives that may have been used to achieve the desired ends. The prison's justifications were the need for quick identification, the prevention of secretion of contraband, and the need to promote hygiene. The court found those reasons to be either overly broad or lacking in substance. Note that the level of scrutiny used in this case must be described as at least intermediate level, while the norm is rational basis.

5th Circuit

A total of eight cases have been heard in this circuit in federal court. It appears that all eight were handled pro se at the trial level. Seven were pro se at the appellate level. The first case in time, Brown, infra, was plead by a pro se plaintiff who's presentation was seen as being so bizarre as to receive no respect by the courts, but yet the decision on that case has been held to have significant precedential value for subsequent prisoner hair claims in the Fifth Circuit.

Brown v. Wainwright, 419 F.2d 1376 (5th Cir. 1970). (Religion).

The pro se prisoner-plaintiff in this case complained of the Florida prison system's restrictive hair regulations as an unconstitutional restriction of his free exercise rights under the 1st Amendment. He claimed to be a "demi-god, 'an offspring of a God and Mortal' and that his mustache is a gift from his creator." He stated that he was an established religion. The prison administration's response involved the assertion that it's hair regulations, which were designed to promote cleanliness and personal identification, were fairly imposed on all men. The appellate court upheld their imposition inasmuch as they were neither unreasonable nor arbitrary.

Brooks v. Wainwright, 428 F.2d 652 (5th Cir. 1970). (Religion).

This pro se plaintiff was housed in the same prison as that of the plaintiff in Brown, supra. His claim was based on his right to 1st Amendment free exercise and freedom of expression as well as his right to 14th Amendment due process. He cited Leviticus 19:27 and Numbers 6:5 as the Biblical source for his religious prohibition to cease and desist from haircutting but did not make any other supportive claim, such as membership or adherence to any organized religion. His claim was dismissed by the trial court as frivolous and the appellate court affirmed. The appellate court cited Brown, supra, as controlling in this case. The court summarily rejected the plaintiff's due process argument. In rejecting his free expression claim, the court cited to Ferrell v. Dallas Independent School District, 392 F.2d 697 (5th Cir. 1968).

Hill v. Estelle, 537 F.2d 214 (5th Cir. 1976). (Gender).

This case involved 6 pro se plaintiffs under incarceration effected by the Texas Dept. of Corrections. The complaint involved, inter alia, claims that the prison system's restrictive hair regulations violated their right to be free from cruel and unusual punishment and, inasmuch as the regulations were not applied to females, constituted a violation of the plaintiffs right to equal protection under the law. The court noted that the prison administration claimed that the hair regulations were designed to promote cleanliness and personal identification and cited to Brooks, supra, as support for its respect of the implied nexus between the hair regulations and the objectives claimed. The court also cited to Daugherty, the eight sentence opinion handed down in the 9th Circuit in supporting its disinterest in interfering with hair length policies promulgated by prison administrators. Daugherty v. Reagan, 446 F.2d 75 (9th Cir. 1971). Citing to Kelley v. Johnson, 96 S.Ct. 1440 (1976), the court found that the hair regulations impinges on no fundamental right and, under Frontiero v. Richardson, 411 U.S. 677 (1973), created no suspect class. Therefore, the differential imposition of hair cutting requirements imposed between males and females was "not so grievous" as to make them arbitrary or unreasonable, cruel or unusual.

Shabazz v. Barnauskas, 598 F.2d 345 (5th Cir. 1979). (Islam).

This case's pro se plaintiff presented as a practitioner of Islam. He claimed that the Florida prison system's disallowance of beards unconstitutionally impacted on his free exercise right. This claim was rejected by the trial court, without a hearing, based on Brooks. The appellate court remanded the case for further proceedings. The only victory for the plaintiff that can be surmised from the report on this case is that he was apparently able to obtain a hearing at the trial court level.

Scott v. Mississippi Dept. of Corrections, 961 F.2d 77 (5th Cir. 1992). (Ras).

In this case the plaintiffs presented as Rastafarians. They claimed that the Mississippi prison system's hair regulations violated their free exercise rights by allowing the forcible removal of their hair. At the trial court level, the judge had directed the parties to present memoranda, briefing the impact to the case at bar, of three cases that constituted then-recent, pertinent case law. The trial court made it clear that it was considering issuing summary judgment for the defendant in light of the other recent cases. In fact, the court did issue summary judgment for the defendant after the plaintiffs had gone 10 months without complying with the court's directive to submit the briefs. Noting that, at the time of the district court's issuance of summary judgment, the case had been pending for 8 years, the appellate court affirmed the lower court's decision. Moreover, the appellate court found that the prison's hair regulations were reasonably related to legitimate penological interests involving identification (within-facility and post-escape and so did not constitute a violation of the plaintiffs' free exercise rights. The appellate court noted that a rationality review using the 4 Turner factors provided no relief whatsoever for the plaintiffs' argument. Turner v. Safely, 482 U.S. 78 (1987).

Upon appeal the plaintiffs raised, for the first time, the issue of disparate treatment of the sexes as to hair cutting requirements. They raised this issue as support for a finding that the hair regulations were presumptively unreasonable in that if they had been promulgated in good faith, they would have been extended to both sexes. The court noted that the plaintiffs (now represented by counsel) had presented no evidence as to what were the requirements for women and so it refused to consider this sub-argument.

Diaz v. Collins, 872 F. Supp. 353 (E.D. Tex. 1994). (AITM).

The pro se plaintiff involved in this case, a prisoner of the state of Texas, presented as an AITM. He claimed that the prison's restrictive hair regulations interfered with his right to free exercise. The prison administration justified its hair regulations with reference to discouraging contraband secretion, enhancing identification, the need to instill a sense of discipline, and, more as to the creation of a religious exemption, the avoidance of "copying" or jealousy among other inmates. The court held that the Texas prison system had adequately shown a compelling state interest in requiring inmates to cut their hair. Note that the prisoner, perhaps believing that a 1st Amendment argument would not likely succeed, chose rather to claim that the prison hair regulations perpetrated a violation of the Religious Freedom and Restoration Act. The court found, though, that the hair regulations promulgated were the "least restrictive means available to achieve" the prison system's valid interests, and the plaintiff's RFRA claims were found to be without merit. The plaintiff had also raised, at trial, the issue of disparate treatment of male and female prisoners in hair regulations. The court wrote off this complaint as meritless in a footnote citing to Hill v. Estelle, supra.

The now-defunct RFRA demanded that strict scrutiny be applied to any governmental regulation that impinged upon free exercise rights. This case report is perhaps most valuable for illustrating that even under the RFRA, a prisoner's free exercise claim against restrictive hair regulations would not stand. Additionally, though, this case report provides a valuable and concise recount of the history of top free exercise case law in the U.S.

Lewis v. Scott, 910 F. Supp. 282 (E.D. Tex. 1995). (Islam).

In this case the pro se plaintiff presented as an orthodox Muslim. He claimed that, under the RFRA, his free exercise rights had been violated in that the Texas prison system's prohibition against facial hair interfered with his practice of Islam. The magistrate who had first heard the case had determined that the plaintiff's interpretation of the Koran was incorrect, in light of expert testimony. As such, the magistrate found that the plaintiff's free exercise of true Islam was not violated by a no-beard policy in the prison. The appellate court rejected this analysis saying that the true issue involved the plaintiff's sincerely held beliefs, not the beliefs of others. The plaintiff had volunteered to accept a restriction toward a 1/4 inch beard and the court found that the prison system's refusal to allow this much growth was invalid under the RFRA.

Because the RFRA has since been ruled unconstitutional by the U.S. Supreme Court, that portion of the ruling is now of little to no import. The idea of a trial judge determining what is good religious practice for a particular plaintiff has been invalidated by this appellate court, and this decision has not been abrogated.

Hicks v. Garner, 69 F.3d 22 (5th Cir. 1995). (Ras).

The pro se plaintiff in this case was a prisoner of Texas and presented as a Rastafarian. He claimed that the prison system's hair regulations violated his rights under the RFRA and the 1st Amendment. This plaintiff's claim was novel in that he stated that, since he was being held in segregation from the larger prison community, the significance of the prison's usual justification for it's hair regulations was rendered inapplicable to him. The trial court dismissed his claim as frivolous. The appellate court defined as frivolous a claim that "lacks an arguable basis either in law or in fact." The appellate court affirmed as to the plaintiff's 1st Amendment claim, but remanded the case for proper consideration of the prisoner's claim under the now-defunct RFRA.

The appellate court noted that there was substantial precedent in that circuit for the proposition that typical prison restrictive hair regulations were rationally related to the achievement of valid penological goals, such as security and inmate identification. It found irrelevant the plaintiff's distinction between being in the general prison population or being in segregation.

TEXAS

Morris v. Collins, 916 S.W.2d 527 (Tex. App. 1995). (Liberty).

In this case, the plaintiff filed pro se stating that the prison system's restrictive hair regulations were discriminatory under Texas law in that they substantially differentiated based on gender. The trial court dismissed the claim as frivolous. The prison system's justifications for the long hair regulations related to secretion of contraband, post escape identification, job safety and hygiene. The appellate court sidestepped the foundation of plaintiff's complaint (gender discrimination) and simply analyzed the validity of the prison hair regulations based upon the Turner analysis. Turner v. Safely, 482 U.S. 78 (1987). The court found the regulations to be valid.

It's interesting to note, particularly in light of the claimed justifications for the restrictive hair regulations for men, that the prison system's only hair regulations for women required that they not cut their hair too short.

6th Circuit

Weaver v. Jago, 675 F.2d 116 (6th Cir. 1982). (AITM).

This pro se, AITM (part Cherokee) plaintiff claimed that the Ohio prison system's restrictive hair regulations violated his free exercise rights, his right to govern his personal appearance, and his right to the free expression of his African heritage. The court found that the defendant's justifications for the restrictive hair regulations was conclusory in nature, and so it reversed the lower court's grant of summary judgment for the defendant and remanded for further proceedings.

Note that even this limited holding for the plaintiff is negated by the later case of Pollock as applied in Wellmaker. Pollock v. Marshall, 845 F.2d 656 (6th Cir. 1988), Wellmaker v. Dahill, 836 F. Supp. 1375 (N.D. Ohio 1993).

Abdol-Rashaad v. Seiter, 690 F. Supp. 598 (S.D. Ohio 1987). (Estab. Clause).

This pro se plaintiff presented as a member of the church of "Universalism" which, it appears, he had founded himself. One of the tenets of his church was that, as a man, he was to take the Nazirite Vow which requires abstention from hair cutting. The court seemed to intimate that, as it had in another, similar case filed by this plaintiff, it found his "purported religion (to be) facially idiosyncratic and not entitled to First Amendment protection " Further, the court found that the plaintiff lacked standing in that he had apparently not specified any damages in his pleadings. Most significant, though, the court found that to respect the plaintiff's newly formed religion as such would be to violate the establishment clause of the 1st Amendment. The court offered its full support for the Ohio prison system's policy of requiring 3rd party verification prior to granting a religious exemption to a religious inmate following a proscription against hair cutting. The court granted the defendant's motion to dismiss.

McCoy v. Celeste, 836 F.2d 1348 (6th Cir. 1988). (Unpublished), (Naz).

This unpublished case report speaks simply of a case in which a dismissal was granted based on the fact that the defendant's sworn statement denying personal involvement in enforcing the haircut regulation was not controverted. We can comfortably speculate that the plaintiff's loss was due to poor pleading probably based on the lack of even a cursory investigation. Though the report doesn't indicate, we easily presume that this plaintiff had proceeded pro se.

Pollock v. Marshall, 845 F.2d 656 (6th Cir. 1988). (AITM).

(The case below can be found at 656 F. Supp. 957.) In the lower court case this pro se plaintiff presented as an AITM. His purpose was to obtain an injunction against the Ohio prison system preventing it from cutting his hair. Such cutting, he claimed, would violate his 1st Amendment right to free exercise. Interestingly, this court of the 6th District went out of its way to cite to Madyun which is case law of the 7th district. Madyun v. Franzen, 704 F.2d 954 (7th Cir. 1983). In Madyun it was held that a prisoner, as such, could not "expect the same freedom from incidental infringement on the exercise of his religious practices that is enjoyed by those not incarcerated." The court noted that the prison regulations under attack would pass "highest order" scrutiny as described in Weaver, supra. However, under current law, the court said, all that was necessary was that the regulation pass a "reasonably and substantially justified" test. This involves a balancing test that poses the state's justification for the regulations against the importance of the prisoner's religious freedom rights. Note at this juncture that the defendant had presented the court with a long list of reasons upon which the restrictive hair regulations were based and by which they were justified.

The court cited to Goldman v. Weinberger in which a member of the Air Force was denied the right to wear his yarmulke. Goldman v. Weinberger, 475 U.S. 503 (1986). The court stated that it couldn't see clear to extend freedoms to a convicted, imprisoned felon that were to be denied to a rabbi serving as an officer in the U.S. military. Finally, the court found that the state's interests in enforcing its restrictive hair regulations outweighed the rights of the prisoners to practice their religion unimpeded, and so summary judgment for the defendant was granted.

The second case involves the plaintiff's appeal of the first case. He is listed as pro se on the case report, but there is an attorney listed as being in plaintiff's assistance pro bono. At this point, the prison administration had forcibly cut the plaintiff's hair. Essentially the appellate court affirmed the lower court's judgment, endorsing the use of the Turner 4 Part test. Turner v. Safely, 482 U.S. 78 (1987).

This case is perhaps most notable for the court's noting that the fact that the plaintiff "remains free to exercise the religion's other doctrines" mitigates the impact of the point of worship at which he is molested. The court seems to endorse a sort of calculus in which the different elements of a person's religious practice are scored as being co-equal and not of substantial importance in their own right. If there are some things that you are allowed to do, then that's called good enough because, after all, you're only a prisoner. see Madyun v. Franzen, 704 F.2d 954 (7th Cir. 1983).

Wellmaker v. Dahill, 836 F. Supp. 1375 (N.D. Ohio 1993). (Islam/Hebrew).

This pro se plaintiff presented as a practitioner of the Nubian Islamic Hebrew faith who, as such, was required by the tenets of his religion to refrain from haircutting. Plaintiff claimed that the forcible haircutting he endured violated inter alia his free exercise and equal protection rights. This case report addresses a motion for summary judgment by the defendant. Citing to Kent v. Johnson, 821 F.2d 1220 (6th Cir. 1987), the court noted that the prima facie case for a 1st Amendment claim consists of establishing that the practice the plaintiff seeks to protect is religious, that his convictions are sincerely held, and that the behavior of the defendant(s) infringes upon his religious practice or belief. But, if the defendant can well show that the restrictions are reasonably related to legitimate penological interests, then the defendant's motion for summary judgment must be granted. The court indicated respect for the use of the Turner 4 Factor Test in making the incumbent analysis. Turner v. Safely, 482 U.S. 78 (1987).

Importantly, the court found that Pollock v. Marshall, 845 F.2d 656 (6th Cir. 1988) overruled the relatively austere requirements of Weaver v. Jago, 675 F.2d 116 (6th Cir. 1982). Weaver had discounted the value of mere conclusory statements made by the defendant in a prisoner hair case in favor of a more substantive presentation. Pollock, though, had allowed a simple recitation of the reasons for the hair regulations to suffice, without requiring a more explicit demonstration of the nexus between the goals and the means.

In the end, the court found that its balancing analysis tipped in favor of the defendant such that summary judgment was affirmed on all claims. Regarding specifically the plaintiff's 14th Amendment equal protection claim, the court noted that it was incumbent upon the plaintiff to make his prima facie case by demonstration of its validity on a preponderance of the evidence standard. The court implied that his demonstration was more toward the scintilla level. The court stated however that "even if the plaintiff were able to demonstrate an equal protection violation, the grooming regulation would in all likelihood be upheld since the Court has already determined that it is reasonably related to legitimate penological interests."

Phipps v. Parker, 879 F. Supp. 734 (W.D. Kentucky 1995). (Jew).

The pro se prisoner here claimed a violation of his free exercise rights in that prison regulations didn't allow him to leave his "earlocks" of hair uncut as his orthodox Jewish practice dictated. The prison justified its restrictive hair regulations by citing concerns regarding the following: cleanliness, guard-to-prisoner physical contact (during searches), identification, contraband secretion. The greatest illustrative value of this case may be that it is one of those that shows that, even using the much more strict analytical standard of the RFRA, a court could still find it legally acceptable to enforce short-hair regulations against prisoners, even though that would clearly burden their ability to freely practice their religion. The point here is that, now that the RFRA has been found to be unconstitutional, a much lower level of scrutiny will prevail and so a fortiori restrictive prison hair regulations are now more durable than ever against 1st Amendment attack.

Estep v. Dent, 914 F. Supp. 1462 (W.D. Kentucky 1996). (Jew).

The main plaintiff in this case was R. Tim Phipps, a prisoner of Kentucky, (see Phipps v. Parker, 879 F. Supp. 734 (W.D. Kentucky 1995) who was an Orthodox Hasidic Jew who desired to allow his earlocks to go uncut, as is normative in his chosen religious practice. Though it's not perfectly clear, it seems that the plaintiffs in this case were pro se. The uncut earlocks were apparently being forcibly cut by prison authorities. Note that this case involved a motion for preliminary injunctions as to certain prison practices that worked against the interests of several prisoners. The only motion that was granted was that enjoining the prison from forcibly cutting Phipps' earlocks as he awaited final judgment on the merits of his case. Phipps claimed that his free exercise rights under the 1st Amendment were being violated by the forced haircuts. Also, he claimed that the prison's restrictive hair length policies were in violation of the now-defunct RFRA. The report on this case provides moderate value in it's recounting of on-point case law history and precedent. However, it's only applicable holding was that Phipps' motion for a preliminary injunction was justified in regard to his hair/free exercise claim. It seems that a significant basis for the court's limited holding related to the possibility of Phipps' success on the merits of his claim through the impact of RFRA dictated analysis. Inasmuch as the RFRA has since been found to be unconstitutional, even the small significance of this grant of a preliminary injunction might well be considered negated.

Davie v. Wingard, 958 F. Supp. 1244 (S.D. Ohio 1997). (Naz / Gender).

This pro se plaintiff presented as a Nazirite. Ohio Admin. Code § 5120-9-25 specifically provides for forced haircuts for prisoners who otherwise allow their hair to grow unmolested. Indeed, the plaintiff was forcibly shorn, which put him in violation of the tenets of his religious practice. Plaintiff claimed a violation of his free exercise rights. That claim was rejected by the cursory statement that it was well settled that prison hair regulations don't violate the 1st Amendment. Plaintiff claimed a violation of his rights under the RFRA, but the court found for the defendant in summary judgment.

This case report is most instructive in its dismissal of the plaintiff's equal protection / gender claim. Whereas the men's regulations stipulated maximum lengths for hair, the women's regulations allowed hair to extend down to the middle of the back (this is, in fact, not a restriction for any practical purposes) and, interestingly, the women's regulations imposed a minimum length. The court recited a long list of characteristics in which male-prisoners-as-a-class were ranked against female-prisoners-as-a-class as to their respective imposition of security threats. It was found that men were worse prisoners than women, and that this justified the differential treatment in hair regulations between the two classes. We might wonder why this sort of reasoning is found to be acceptable for gender based discrimination even though it is known by all that it wouldn't be acceptable for racially based discrimination.

Ohio

Dillon v. Russell, 621 N.E.2d 491 (Ohio Ct. App. 1993). (Naz).

This pro se plaintiff appealed his loss to summary judgment in the lower court. The appellate court affirmed the lower court's ruling and simply adopted and incorporated the lower court's reasoning as its own. The plaintiff had claimed that he was a practitioner of the Nazirite Christian Faith and that the prison's hair cutting requirement would work to cause him to violate his religious beliefs. The prison administrators justified the hair regulations as relating to the prevention of clogged drains, lice infestations, homosexual attack, within-facility and post escape prisoner mis-identification, and industrial accidents. In punishing him for his non-compliance with the hair cut regulations, the prison was violating his free exercise rights, the prisoner claimed. The trial court referred to the prisoner's faith as a "cult", a term which has heavily negative connotations, but proceeded to ostensibly find against him based upon his not meeting his evidentiary burden. Specifically, the defendant had had the burden of showing the court that the defendant's hair regulations were not reasonably related to legitimate penological interests. Put another way, it became his job to effectively rebut the defendant's facially valid defense, and he failed to do so.

7th Circuit

Reed v. Faulkner, 842 F.2d 960 (7th Cir. 1987). (Ras).

(The lower court case report can be found at 653 F. Supp. 965.) Within the environment under discussion, only one plaintiff's case has been reported in the Seventh Circuit. The plaintiff was pro se throughout the development of his case.

Plaintiff's bases for claim -

- free exercise, in that Plaintiff, as a Rastafarian was denied the ability to grow his hair in accord with his religious beliefs

- equal protection, in that "American Indians" were allowed to wear hair long for religious reasons but not Rastafarians

Respondent's defense: hair regulations needed generally-

- to promote security (re: contraband secretion)

- to diminish inmate conflict based on racial issues

- to diminish disciplinary problems resulting from jealousy of non-religionists over hair cut exception for religionists

- to promote inmate safety around mechanical devices (where hair might get caught)

- to promote hygiene in avoiding lice and infections, both for long haired convict and co-convicts

- As to the equal protection claim, the prison administrators' hands were tied as to the "American Indians'" long hair allowance due to a court order.

The District Court held for the defendants finding that the plaintiff had not met his burden of showing that the penological interests cited as justification for the hair regulations were pretextual or otherwise invalid. Left unchallenged, the justifications offered were sufficient to negate the plaintiff's free exercise rights in the manner at issue. Further, the court found that the plaintiff's religious sincerity was severely impugned by the apparent looseness of his adherence to Rastafarian practice directives. Also, it took difference with the plaintiff's analysis of what constituted good Rastafarian practice. The court didn't explicitly address the plaintiff's equal protection claim in its holdings.

The Seventh Circuit Court of Appeals vacated and remanded, stating that adherent's lack of perfect practice did not provide conclusive evidence of insincerity and that the equal protection matter must be explicitly addressed with the burden being on the respondent to show that its pattern of enforcement was not arbitrary.

8th Circuit

Blake v. Pryse, 444 F.2d 218 (8th Cir. 1971). (Liberty).

(The district court pre-cursor to this appeal is found at 315 F. Supp. 625.) In this one page opinion the case is reported of a pro se prisoner who simply posed the conclusory charge that he had federal civil and constitutional rights that were violated by the prison system's requirement that he shave and cut his hair. The appellate court disagreed.

Ralls v. Wolfe, 448 F.2d 778 (8th Cir. 1971). (Liberty).

(The district court pre-cursor to this appeal is found at 321 F. Supp. 867.) In this case the prisoner was represented by licensed counsel. The court below refused to address the constitutionality of the prison's restrictive hair regulations as applied to this prisoner. The appellate court simply cited to Blake v. Pryse, supra, stating that an incarcerated prisoner has no constitutional right to present his hair in a manner that satisfies his personal desires.

United States v. Aaron, 350 F. Supp. 1 (D. Minn. 1972). (AITM).

The appellant in this case was an AITM who was represented by licensed counsel. When this prisoner's father died, the prison administration demanded that he get his hair cut at a condition of his being allowed to attend the funeral. In analyzing the importance of long hair to the AITM religious tradition, a Rabbi was called who testified that, per Judaism, if a religionist were to break a vow to refrain from hair cutting, he could simply renew the vow after the cutting and again be in good religious standing; apparently the presumption was that what's good for the Jew is valid for the Sioux. The prison administration cited Blake, supra, as precedent for judicial support of its regulations and justified the regulations by reference to identification, hygiene and security.

The appellate court found that Blake v. Pryse, supra, forestalled any analysis at to whether the goals proffered by prison administrators were sufficient to justify the prison grooming regulations; the regulations were to be considered rationally justified. On the question of a violation of the plaintiff's 1st Amendment free exercise rights, the court found that his lack of devout practice earlier in his life indicated that he wasn't sincere now and so his claim of religious infringement would not stand. Even assuming, the court said, that the prisoner was sincere, his claim still would not stand because religious belief as to proper conduct cannot be seen to supersede the "reasonable rules of conduct in or out of prison." The plaintiff had also claimed an equal protection violation based upon different regulations for African-Americans, but the court stated that the differentiation was reasonable and so not violative.

Rinehart v. Brewer, 491 F.2d 705 (8th Cir. 1974). (Religion, Liberty).

(The case below can be found at 360 F. Supp. 105.) The appellant-prisoners in this case were represented by counsel. Their complaint alleged that the prison's restrictive hair regulations violated their civil right to determine their own appearance and they sought to take advantage of the then-recent precedent of Bishop, which was a high school hair length case. Bishop v. Colaw, 450 F.2d 1069 (8th Cir. 1971). In Bishop, the court found a significant, constitutional liberty interest in a person's right to determine his own appearance. The court used, in that case, what may be described as an intermediate level of scrutiny and found that the short-hair policy was more restrictive than necessary to achieve the valid goals proffered by the school. The court easily distinguished that case from the case at bar based on the divergent exigencies of high school and prison population management. The court found that the prison hair regulations were rationally related to the goals stated and so upheld their constitutionality. Of particular value is the presentation in this report of Judge Lay's dissent. Note that in the case below, the plaintiffs claimed that the prison hair regulations violated their free exercise rights in that a tenet of their "Church of the New Song" religion required them to refrain from hair cutting; but at the appellate level the plaintiffs had either plead a simple liberty interest or the appellate court simply didn't choose to identify the specific constitutional issue that had been specified. The court, as a whole, seemed to give this case short shrift inasmuch as the opinion was per curiam and was only four paragraphs in length.

Proffitt v. Ciccone, 506 F.2d 1020 (8th Cir. 1974). (Naz?).

This federal prisoner filed pro se alleging that his 1st Amendment religious rights were violated by the prison system's imposition of restrictive hair regulations. It is reasonable to surmise from this cursory report that the prisoner had taken the Vow of the Nazirite. The appellate court barely acknowledged the religious nature of the claim, stating merely that "a person, in or out of prison, may not, in the name of religion, become a law unto himself." The court characterized the hair regulations as being "reasonable rules of conduct" and cited to precedent (Rinehart, Blake, supra) as the basis for not holding the regulations to be in violation of the prisoner's rights.

Teterud v. Burns, 522 F.2d 357 (8th Cir. 1975). (AITM).

The prisoner-plaintiff in this case presented as an AITM and claimed that the prison system's restrictive hair regulations deprived him of his rights under the 1st and 14th Amendments as to free exercise, free expression, freedom to govern one's own personal appearance (privacy?), and equal protection of the laws. The lower court found the hair regulations to be violative of the plaintiff's rights under the free exercise clause and the appellate court affirmed on that basis.

The court distinguished such earlier 8th Circuit cases as Blake, supra, and Rinehart, supra, as being inapposite inasmuch as they didn't go to 1st Amendment issues. Brown v. Wainwright, supra, of the 5th Circuit, was distinguished based on the fact that that case was decided on its pleadings without a factual record, whereas the lower court's opinion in this case presented detailed findings of fact and conclusions of law predicated on the basis of a fully developed record.

For several good reasons, the ruling in this case should not be considered as binding precedent. Most significantly, in Iron Eyes, infra, the court declared that the standard of analysis used in this case had been "superseded" by that proffered in Turner v. Safely, 482 U.S. 78 (1987). Also, this case was reviewed on appeal on a clearly erroneous standard; therefore, we can't assume that the appeal court would have overturned the trial court if it had gone the other way, or would have reversed a ruling for the defendant on summary judgment.

Iron Eyes v. Henry, 907 F.2d 810 (8th Cir. 1990). (AITM).

In this case an AITM, represented by licensed counsel, protested the Missouri prison system's restrictive hair regulations as being violative of his 1st Amendment free exercise rights. In one sense, there is nothing new or different presented in this case report. Rather it simply cites to O'Lone as precedent for a reasonableness standard and for the principle of deference to prison authority, and to Turner for the specific analysis to be used in such a complaint. O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987), Turner v. Safely, 482 U.S. 78 (1987). As to the precedential value of Teterud which was previously considered to be of high import, the court specifically stated that "While Teterud has not been expressly overruled, we have limited it to its facts." see Teterud v. Burns, 522 F.2d 357 (8th Cir. 1975).

This case is perhaps of most value in that it offers a detailed example of how a prison administration can act in a bad faith, maximally abusive manner toward a prisoner "who was forcibly shorn" and, under O'Lone, supra, and Turner, supra, will prevail. For this reason, and regardless of the side of the case that the reader is on, this case report should be considered a "must read" by any party dealing with a similar law suit. The dissent is particularly instructive.

Kemp v. Moore, 946 F.2d 588 (8th Cir. 1991). (AITM).

This AITM prisoner appellant was represented by counsel. This opinion has little value in and of itself in that it simply supports the lower court's decision to validate the prison's restrictive hair regulations based on precedent. It is worth reading for the concurring opinion of Senior Judge Heaney, who concurs only because, as he states, the court's decision in Iron Eyes, supra, leaves him no alternative. His concurring opinion effectively reads as a dissent.

Campbell v. Purkett, 957 F.2d 535 (8th Cir. 1992). (Naz).

In this case the prisoner-plaintiff argued, with assistance of counsel, that the prison's restrictive hair regulations, which applied only to male prisoners, violated his free exercise rights and his right to equal protection. The court dismissed his 1st Amendment concern in its cursory opinion by citing to Iron Eyes, supra. As to the equal protection claim, the court said that this claim failed for the same reason that the 1st Amendment claim failed, i.e., "the prison's grooming regulation is reasonably related to legitimate penological interests."

Sours v. Long, 978 F.2d 1086 (8th Cir. 1992). (Naz).

This prisoner-appellant was represented by counsel and presented as a Nazirite. From the court below, he appealed summary judgment in favor of the defendant who he accused of propagating restrictive hair regulations that worked a violation of his 1st Amendment free exercise rights. The appellate court simply affirmed.

Quinn v. Nix, 983 F.2d 115 (8th Cir. 1993). (Liberty).

In this case the prisoners, represented by counsel, complained of a violation of their constitutional liberty interests. In this prison system (Iowa) long hair was allowed, though hairstyles were not to be "extreme." The prison administration had ordered a select few prisoners to get their hair cut, but then refused to reply to the prisoners' queries as to the basis for the order. At trial the prison administration offered reasons for the order that the trial court found to be pretextual. The appellate court upheld the lower court's ruling based on a "clearly erroneous" standard. This case is probably best seen as having only slight practical, precedential value as it seems rather limited to its specific facts.

Bettis v. Delo, 14 F.3d 22 (8th Cir. 1994). (AITM).

The pro se AITM plaintiff brought suit alleging violation of his free exercise rights by being forced to cut his hair. The district court found for the defendant in summary judgment and the appellate court summarily affirmed citing to precedent.

Hamilton v. Schriro, 74 F.3d 1545 (8th Cir. 1996). (AITM).

(The case below is found at 863 F. Supp. 1019.) The prisoner in this case, an AITM, claimed that the prison system's restrictive hair regulations worked a violation of his free exercise rights and of his statutory rights under the RFRA. He was represented by counsel. The prison system recounted some of the usual concerns in justification of the short-hair regulations, including contraband secretion, identification, gang control and, in the case of offering religious exemptions, fellow prisoner jealousy.

As to the 1st Amendment claim, the court cited to O'Lone, supra, for the proposition that a rational basis level of scrutiny is appropriate in this context. The court cited to Turner, supra, in endorsing it's 4 prong test applicable in the analysis of disputes such as the one at bar. The court, in finding no 1st Amendment violation, simply referred to within-circuit precedent and said that "Our prior decisions make it abundantly clear that Hamilton's constitutional challenge to the prison hair length regulation must fail."

As to the RFRA claim, inasmuch as RFRA has since been declared unconstitutional, it bears little, immediate discussion. The main point here to be found is that, even under RFRA, the prisoner's rights claim didn't prevail. RFRA installed a "strict scrutiny" standard to be used in the analysis of claims of the infringement of religious exercise rights. The effect of RFRA was to provide a statutory cause of action for religious free exercise rights separate from normal constitutional analysis. RFRA analysis, the court found, supported deference to the judgment of prison authorities. Further, the court found that the short-hair regulations constituted the least restrictive means available to address the "highest order," valid penological interests that they were designed to serve, elements pertinent to RFRA.

Missouri

Adams v. Moore, 861 S.W.2d 680 (Mo. Ct. App. 1993). (AITM).

This case is of limited significance; its highest value is perhaps found in the negative example if provides to self-advocates who believe that they can rationally expect success while only providing the court with conclusory statements unsupported by evidence.

More positively, we note that the pro se prisoner/plaintiff was an AITM (Choctaw) who made his free exercise claim under art. 1 § 5 of the Missouri State Constitution. As a prisoner grooming regulation complaint brought under art. 1 § 5, it was a case of first impression. The court indicated its willingness to utilize the Turner test in order to determine the validity of the regulations under Missouri constitutional law and it found that the state was able to meet its burden of rebutting the plaintiff's prima facie case. Turner v. Safely, 482 U.S. 78 (1987). However, and as stated above, the plaintiff failed to present any evidence to the trial court to support his attack on the prison's rebuttal. More specifically he should have been prepared to provide factual support for his claim that there were no alternative means available to him for exercising his religious practice. Also, he should have provided factual support for his conclusion that there would be no significant costs incurred by the prison if he were to be allowed to abstain from hair cutting.

9th Circuit

Winsby v. Walsh, 321 F. Supp. 523 (C.D. Calif. 1971). (Misc.).

In this case the prisoner initiated a habeas corpus proceeding to charge that prison officials had violated his 8th Amendment right to be free of cruel and unusual punishment by placing him in solitary confinement for, to that point, 10 months based on his refusal to cut his hair and shave. The plaintiff claimed that it was his "God given" right to refrain from haircutting. His sincerity was not in question with the prison administration. The prison's justifications for its restrictive hair regulations related to identification and hygiene. The court noted its desire to extend deference to prison administrators in their management decisions and the recognition of the fact that incarceration of convicts necessarily presumes deprivation of normal liberties. The court noted that inasmuch as the prisoner would have been released immediately at such time as he consented to a shave and haircut, he had not been sentenced to solitary confinement, but rather was generating his own day by day punishment. The court noted that "regulations for the administration and the discipline of prisons are not subject to review by the courts unless it can be clearly demonstrated that they interfere with fundamental rights guaranteed by the Constitution. The court found no violation by the prison administration.

Daugherty v. Reagan, 446 F.2d 75 (9th Cir. 1971). (Misc).

The report in this case is most (perhaps only) noteworthy for the undisguised animosity so forthrightly revealed by its terse, per curiam opinion. Its contents, all eight sentences, are reproduced here verbatim and in their entirety:

"Daugherty is a prisoner at California's Folsom state penitentiary. Some regulation at the place requires him to get his hair cut. This he doesn't like. So he filed a civil rights complaint against his warden, the attorney general, Governor Reagan and sundry other officials of the state. The district court dismissed. We affirm.

While little vestige remains of the old concept that a convict is civilly dead, we have not reached the point where we second guess the state authorities on the length of prisoners' hair. We do not reach the question of what his damages could conceivably be."

Capoeman v. Reed, 754 F.2d 1512 (9th Cir. 1984). (AITM).

The plaintiff-prisoner in this case was a Quinault tribal member who was forcibly shorn by prison officials despite his assertion that his uncut hair was religiously mandated. He filed suit based on a claim of violation of his 1st Amendment free exercise right by the Washington State prison authorities. A year later the prison system amended its haircut policy to allow for religious exemptions for AITMs and a year after that the prisoner's conviction was reversed on appeal. His civil rights action, initiated after his release, asked for declaratory and injunctive relief and damages. The first two issues were considered moot in light of the change in prison policy and the plaintiff's release from prison. As to the damages issue, the appellate court affirmed the trial court's finding that the state officials were immune from such an assessment under the circumstances of the case. The court found that law contraindicating the acceptability of their actions was arguably not clearly established at the time of their actions.

McCabe v. Arave, 626 F. Supp. 1199 (D. Idaho 1986). (Christian).

This pro se § 1983 action was brought by two prisoner plaintiffs incarcerated within the Idaho prison system. They claimed to be members of the Church of Jesus Christ Christian and alleged that the defendants had violated their free exercise rights by disallowing their presentation of facial hair. The defendants held that the plaintiffs were not engaged in a bona fide religious practice, but rather their "church" was an Aryan Nations front. The court's opinion goes to lengths to denigrate and invalidate the plaintiffs' church as such. As to the prisoner's ability to present facial hair, the court found that the prison system's regulations were appropriate to the valid penological goals of preventing the secretion of contraband and the facilitation of prisoner identification. Also, the court found that all prisoners were treated alike in the consideration of their application for religious exemptions to the general, restrictive hair policies and that the determination rules were reasonable. Those rules included requirements that the prisoner make a statement of faith, that the quality of his worship be attested to by a third party, and that the wearing of uncut hair be a major tenet of his professed religion.

McCabe v. Arave, 827 F.2d 634 (9th Cir. 1987). (Christian).

In this case the plaintiffs of a case by the same name at 626 F. Supp. 1199, supra, appealed that district court's ruling. As to their facial hair claim, the appellate court found that the claim was not ripe for adjudication and so it vacated the lower court's ruling regarding same. The court noted that the regulations had not actually been enforced against the plaintiffs and that they presented no evidence as to whether they had attempted to, or planned to, apply for religious exemptions from the prison's restrictive hair policies.

Swift v. Lewis, 901 F.2d 730 (9th Cir. 1990). (Naz).

Two Arizona State prisoners had fallen to summary judgment at the trial court level in their § 1983 actions against prison officials. The prisoners, Nazirites, had been denied religious exemptions from the prison's normally restrictive hair regulations, though such exemptions were normally granted to Sikhs and AITMs. The plaintiffs sought declaratory and injunctive relief as well as damages. They claimed that their 1st Amendment rights to free exercise has been violated. The court noted that prison regulations that infringe on an inmates practice of religion are valid if they are reasonably related to legitimate penological interests. McCabe v. Arave, 827 F.2d 634 (9th Cir. 1987). The prison asserted justifications for its hair regulations that related to the following: (1) identification, (2) hygiene, (3) homosexual activities, (4) reduction of guard-to-inmate direct contact. The court noted that the defendant had not produced any evidence that their policies were based on legitimate penological justifications. The court remanded the case back to the district court for development of the record.

Friedman v. Arizona, 912 F.2d 328 (9th Cir. 1990). (Jew).

Two Jewish plaintiff-prisoners filed pro se § 1983 complaints that sought permanent injunctions against enforcement of the Arizona Dept. of Corrections no-beard policy. As orthodox Jewish men, the plaintiffs claimed that to shave would transgress their religious beliefs. The prison cited ease of identification as its primary justification for its hair regulations. More specifically, it noted that short hair and shaved faces on male inmates facilitated identification in (1) routine transactions, (2) naming offenders in group disturbances, and (3) post escape recapture. Granting religious exemptions was rejected by the prison because it felt that massive amounts of prisoners would falsely claim to be religionists in order to gain extra "privileges." Re-photographing prisoners was deemed inadequate in that a beard can be trimmed to a practically infinite variety of appearances. The court referred to the Turner four factor test that is used to determine whether a regulation reasonably relates to legitimate penological interests: (1) whether the regulation has a logical connection to the legitimate government interests invoked to justify it, (2) whether alternative means of exercising the right on which the regulation impinges remain open to prison inmates, (3) the impact that the accommodation of the asserted right will have on guards, other inmates, and prison resources, and (4) the absence of ready alternatives that fully accommodate the prisoner's rights at de minimis cost to valid penological interests. Turner v. Safely, 482 U.S. 78 (1987). The court found that all of the four Turner factors weigh in favor of the regulation. Id. Note that factor 2 involves not whether some other practice can "take the place" of the one forbidden, but rather whether there simply are other religious behaviors in which the prisoner can engage to demonstrate his adherence to his religion. In explaining Swift, supra, the court said that the defendant need not provide concrete evidence of the nexus between its regulation and its goal, but rather may satisfy by offering oral testimony that well explains a rationale that may relate only to anticipated problems that are prevented by implementation of the regulation. In conclusion, the court found that no impermissible restriction of plaintiffs' free exercise rights was engendered by the restrictive hair regulations.

Wright v. Lewis, 927 F.2d 612 (9th Cir. 1991). (Unpublished), (Ras/Naz).

This "unpublished" decision report involves a Rastafarian (Nazirite) prisoner who had filed a §1983 claim alleging violation of his free exercise rights. Initially, the Arizona Dept. of Corrections had granted him a religious exemption from its restrictive hair policies, but then one of the prison chaplains found in the Army Chaplain's Manual that abstention from hair cutting were merely an optional practice, not a required tenet, of the Rastafarian religion. After having this portion of his religious exemption rights denied, the plaintiff filed a complaint. After that, it so happened that the prison system began to allow long hair, but eliminated religious exemptions for facial hair. Following this, the plaintiff was forcibly shaved. The appellate court found that, under precedent set in Friedman v. Arizona, supra, the court had no alternative but to apply the Turner 4-prong test and to find for the defendant in this factually similar case. Turner v. Safely, 482 U.S. 78 (1987).

Swift v. Lewis, 17 F.3d 396 (9th Cir. 1993). (Unpublished), (Christian/Naz).

(See Swift v. Lewis, 901 F.2d 730 (9th Cir. 1990), supra.) On remand, the district court found for the defendant in summary judgment and the prisoner/plaintiffs appealed. The appellate court found, as had the trial court, that the plaintiffs' religion was not recognized as such. The prison chaplain had "contacted religious authorities and was advised that there have not been any Nazarites (sic) in hundreds of years." An Arizona Dept. of Corrections official attempted to console the plaintiffs by quoting the Christian scriptures (Romans 13:1-2) as indicating that the plaintiffs would be forgiven for forsaking their vow because the prison authorities were agents of God. In justifying any supposed restrictions on the plaintiffs' religious practice, the court cited to O'Lone v. Shabazz, 482 U.S. 342 (1987) and Turner v. Safely, 482 U.S. 78 (1987). In addition to the penological interests cited in the trial court opinion as being served by the restrictive hair regulations, the defendant added concerns about preventing pipe clogging and louse infestations as well as the secretion of contraband.

Belgard v. Hawaii, 883 F. Supp. 510 (D. Hawaii 1995). (AITM).

This pro se AITM prisoner/plaintiff brought a § 1983 action in which he complained that prison authorities had violated his free exercise rights by forcing him to cut his hair. In the report of its decision in this matter, the court noted that the Supreme Court's decision in Employment Div. v. Smith ("The Peyote Case") had effectively reduced the level of scrutiny in free exercise claims from strict scrutiny, as required by Sherbert, to rational basis review. Employment Div. v. Smith, 494 U.S. 872 (1990), Sherbert v. Verner, 374 U.S. 398 (1963).

Abordo v. Hawaii, 902 F. Supp. 1220 (D. Hawaii 1995). (AITM).

The plaintiff-prisoner in this case was an AITM who filed pro se a §1983 action alleging that the Hawaii state prison system's enforcement of restrictive hair regulations, for men only, had violated his rights under the (now defunct) RFRA as well as his rights under the 1st, 5th and 14th amendments. The appellate court upheld summary judgment for the defendants finding against the plaintiff's due process claim saying that the enforcement of the grooming standards does not impose a sufficiently atypical or significant hardship to facially support a due process violation inquiry. As to the plaintiff's equal protection claim, the court found that he had not presented evidence enough to support a prima facie case. The court remanded for consideration of whether the RFRA had been violated by the defendants.

Abordo v. Hawaii, 938 F. Supp. 656 (D. Hawaii 1996). (AITM).

As in his case at 902 F. Supp. 1220, supra, the AITM plaintiff-prisoner in this case filed pro se alleging that the Hawaii state prison system's enforcement of restrictive hair regulations, for men only, had violated his rights under the (now defunct) RFRA as well as his rights under the 1st, 5th and 14th amendments. The defendant's summary judgment motion was granted in its entirety by the court.

The court found that the prisoner's gender discrimination charge was meritless because the defendants had submitted evidence that the difference in hair length policy between the men's and women's correctional facilities was due to a disparity in security concerns and not because of any illegitimate discrimination on the basis of gender. Valid penological concerns cited as justifying the men's restrictive hair regulations related to contraband secretion, guard-prisoner contact, gang identification, combat facilitation, hygiene (lice, infections), food service worker sanitation, industrial safety. The plaintiff had submitted no evidence to rebut the defendants' evidence or assertion.

The plaintiff alluded to a claim of religious discrimination but had frustrated this claim by representing himself, over time, as an adherent to as many as 6 different religious groups. The court noted that, in the preceding, related case that involved this plaintiff, the court had virtually invited the plaintiff to develop his equal protection claim based on religious discrimination. Plaintiff presented absolutely no evidence to support such a claim, however, so summary judgment on this issue was granted for the defendants.

The defendant had managed to procure a statement from a person who had performed as the Deputy Director for Operation of the Colorado Dept. of Corrections, in addition to other, similar, highly responsible positions. The statement presented the expert opinion that "there is simply no imaginable legitimate security nor safety reason to prohibit Native American inmates from attending their religious beliefs by wearing long hair." This statement was written off by the appellate court as constituting hyperbole and a mere conclusion without supporting facts.

As to the RFRA, the court found that, the plaintiff's rights weren't violated because the restrictive hair regulations were the least restrictive means to satisfy the government's legitimate penological interests.

Idaho

Wilson v. Idaho, 746 P.2d 1022 (Idaho Ct. App. 1987). (Free Expression).

The prisoner-plaintiffs in this pro se action claimed that the Idaho prison system's restrictive hair regulations violated their 1st Amendment right to freely express themselves. The prison justified its hair regulations with references to (1) identification, (2) contraband secretion, and (3) hygiene. The court held that, as applied to inmates whose claims are not grounded in sincerely held religious beliefs, the prison's hair policy is reasonable and is well within the discretion accorded to prison officials. The plaintiffs had asserted that the prison's hair regulations were not the least restrictive means to accomplish their goals, but the court noted that the prisoners had not proposed any alternatives and the court could not itself think of any. The court noted that the prisoners had other methods of self-expression such as writing, drawing or holding discussion groups. Therefore, the court rejected the plaintiffs' 1st Amendment challenge.

10th Circuit

Hall v. Bellmon, 935 F.2d 1106 (10th Cir. 1991). (AITM).

In this case, the pro se plaintiff's complaint was based on a free exercise claim. He presented as being an AITM and the specific setting in which he found himself was a temporary detention facility from which prisoners are dispatched to long-term facilities. At this facility a policy required that the hair of all new inmates be cut. The justifications were the avoidance of secretion of contraband, ease of appearance change after escape, and the facilitation of good hygiene. The district court held that these reasons were reasonably related to legitimate penological interests, and that it appeared beyond doubt that the plaintiff could prove no set of facts in support of his claim which would entitle him to relief. Summary judgment was made for the defendant party, and the appellate court affirmed.

Mosier v. Maynard, 937 F.2d 1521 (10th Cir. 1991). (AITM).

In this case, the pro se plaintiff was an AITM claiming a violation of his free exercise rights based on the fact that the prison had denied his application for a religious exemption from its short-haircut policy. The plaintiff had been unable to provide evidence of his religious sincerity that the prison administration would consider satisfactorily supportive. As in Hall, supra, this plaintiff's claim was dismissed summarily, but here the appellate court found that summary judgment was improper. The judgment for the defendant party was reversed and the case was remanded for full consideration of the facts surrounding the plaintiff's evidentiary presentation, to prison authorities, of his religious sincerity.

Perry v. Davies, 757 F. Supp. 1223 (D. Kan. 1991). (Religion).

In this case, a pro se Kansas inmate filed a § 1983 complaint alleging violation of his free exercise rights in that he was required to shave in order for an induction photograph to be taken of his bare face. The defendants requested dismissal of the complaint based in part on plaintiff's failure to state a claim for which relief could be granted. Perry did not file a response. The court held that there was no free exercise violation because the regulation was reasonably related to legitimate penological interests in that it was rationally related to a legitimate security interest in having clean-shaven identification photographs. The court also took into account the fact that the intrusion was minimal, as plaintiff would be allowed to regrow the facial hair once the photographs were obtained. This last, though, can not be properly construed as indicating that the court found the regrowth allowance component of the grooming policy necessary for its validity, inasmuch as the court went out of its way to cite Friedman v. State of Ariz., 912 F.2d 328 (9th Cir. 1990) as holding that the prohibition of facial hair was not unconstitutional under the free exercise clause.

Wright v. Raines, 457 F. Supp. 1082 (D. Kan. 1978). (Sikh).

In this case the Kansas Court of Appeals had considered the appeals of two plaintiffs who presented as Sikhs. see Wright v. Raines, 571 P.2d 26 (Kan. Ct. App. 1977). They had been ordered to endure haircutting and had, pro se, filed hand written writs of habeas corpus on claims of denial of free exercise of religion. The state district court summarily dismissed both claims the same day they were filed. The Kansas Court of Appeals ruled that a hearing was required to be held to determine whether there was a constitutional violation as alleged.

It seems apparent that the plaintiffs were unsuccessful in their resultant state district court hearing because the following year Wright, pro se, brought an action in U. S. District Court on the same grounds. The court identified as the central issue presented whether prison officials may validly prohibit plaintiff from following the dictates of his religion which prevent him from removing hair from his body. The defendant founded its need for the pertinent grooming regulations solely on security. More specifically, the defendant claimed that intra-facility and post-escape identification and general discipline concerns were implicated. The court declared the no-beard rule unconstitutional as applied to sincere religious practitioners for whom beard presence involved a substantial tenet of their religion.

This case represents the rare example of complete success for a pro se petitioner in the context under examination. Any optimism engendered therefrom should be mitigated, though, by the fact that this ruling was made only at the trial court level and was apparently not appealed. Further, the court arguably used an intermediate level of scrutiny, whereas the norm seems to be to use rational basis review. It has been said that the federal prison system capitulated on restrictive male hair regulations simply to relieve itself of the concomitant burden of defending against the predictably resultant litigation. The result in this case, left standing, may be best seen as a manifestation of this prison system's administration simply conceding the issue due to lack of motivation.

Oklahoma

Roseborough v. Scott, 875 P.2d 1160 (Okla. Ct. App. 1994). (Naz).

In this case the pro se plaintiff presented as being a Christian who had taken the Vow of the Nazirite. On that basis, he applied for a religious exemption to the prison's grooming code. The prison turned down his application due to an alleged lack of sincerity and he filed a § 1983 action with the district court, in effect, alleging that his rejection was arbitrary and in violation of minimum due process standards. There his claim was dismissed for "failure to state a claim." The Oklahoma Court of Appeals found that there wasn't enough information in the record for the district court to have properly issued summary dismissal. It reversed and remanded so that the issue of plaintiff's sincerity could be properly resolved based on thorough factual development. It made clear that summary dismissal may turn out to be appropriate after proper factual development. All that this case truly stands for is the well respected notion that, at the appellate level, "if it's not in the record it didn't happen".11th Circuit

(Harris I) Harris v. Dugger, 715 F. Supp. 364 (S.D. Fla. 1989). (Ras).

In 1989 it was reported that Harris had (pro se) filed a § 1983 complaint alleging a free exercise violation in the prison's grooming regulations. The district court noted that the plaintiff hadn't received a full hearing in the magistrate's tribunal on his First Amendment claim. It noted that such a hearing is required, regardless of the likelihood of success. The elements of such a hearing were listed as follows: (1) the sincerity of the plaintiff's faith, (2) whether his religion is recognized, (3) whether abstention from haircutting is a mandatory tenet, (4) what are the grooming regulations involved, and what are the government interests underlying them, (5) whether there are less restrictive means of accommodating the government's interests. (see case report for details). The case was remanded to the magistrate for a full First Amendment free exercise hearing.

(Harris II) Harris v. Dugger, 757 F. Supp. 1359 (S.D. Fla. 1991). (Ras).

The magistrate in the above-discussed Harris I case held the required hearing and produced a report from which Harris (1991) appealed pro se. The magistrate had found that the Florida prison's restrictive hair regulations, as enforced against Harris, didn't violate his First Amendment free exercise rights. The district court stated in its order that "The pro se plaintiff has submitted general objections, none of which are of any substance."

(Harris III) Harris v. Chapman, 97 F.3d 499 (11th Cir. 1996). (Ras).

(Preface: This case is the third reported in the 11th Circuit involving the same plaintiff.) This case involves a Rastafarian, Florida State prison inmate who brought a § 1983 action against six defendants alleging that he was forcibly shorn in conjunction with being beaten while being verbally abused with racial slurs. The plaintiff claimed violations of his First Amendment free exercise rights and his Eighth Amendment right to be free from cruel and unusual punishment, as well as being treated in violation of the Religious Freedom Restoration Act (RFRA). At the time of this appeal he was represented by counsel, but prior to this point he had proceeded pro se. The court went out of its way to establish that "Appellant is a very litigious prisoner."

The prison administrator's justifications for its short-hair/no-beard policy were, in part, ease of identification and the prevention of the secretion of contraband. The court found these interests to constitute a compelling governmental interest that, as required by the RFRA, was being addressed through the least restrictive means. The court impliedly ruled that the forced shearing was not, per se, unacceptable constitutionally or otherwise. It did find, however, that the trial court jury had been justified in finding that the particularly abusive manner in which it had been administered did violate the plaintiff's constitutional rights.

Furqan v. Georgia, 554 F. Supp. 873 (N.D. Ga. 1982). (Islam, Sunni).

The plaintiff in this case presented as a Sunni Muslim incarcerated in the Georgia state prison system. The prison administrator attempted to justify the restrictive hair regulations to the court, but the court refused to recognize any of the reasons but one - that of post-escape identification concerns. The plaintiff had brought up the fact that the federal prison system no longer saw a need to maintain restrictive hair regulations, but the court distinguished that prison environment as housing a higher class of criminal that posed fewer discipline concerns. The court found for the defendant stating that the Furqan's First Amendment rights were not violated by the no beard rule.

Shabazz v. Barnauskas, 600 F. Supp. 712 (M.D. Fla. 1985). (Islam)

In this case the Muslim plaintiff complained pro se that the Florida Prison System's no beard rule, as applied to him, constituted cruel and unusual punishment (citing to the Eighth Amendment) and violated his free exercise rights under the First Amendment. The defendant justified the rule based on post escape identification concerns. The court summarily dismissed the plaintiff's Eighth Amendment claim. It ruled that, under the Turner nalysis the no beard rule provided no First Amendment violation. Turner, supra.

Brightly v. Wainwright, 814 F.2d 612 (11th Cir. 1987). (Religion).

In this case, the multiple plaintiffs presented as members of the Ethiopian Zion Coptic Church, one of the beliefs of which was that men should abstain from all hair cutting. They filed § 1983 actions in which they claimed that the Florida Department of Corrections no beard/short hair policy violated their First Amendment free exercise rights. Bases offered for the restrictive hair regulations involved post-escape identification, the desire to maintain a uniform grooming policy, and to reduce security risks. The trial court had ruled for the plaintiff-prisoners enjoining the enforcement of the challenged grooming regulations, but the appellate court reversed citing the deference to be made to the judgment of prison administrators. Further, the court cited to within-circuit precedent: Shabazz v. Barnauskas, 790 F.2d 1536 (11th Cir. 1986); Maimon v. Wainwright, 792 F.2d 133 (11th Cir. 1986). The court specified a rational basis standard of review, yet stated that it found that the grooming regulations were the least restrictive necessary in order to satisfy the government's substantial interests.

Solomon v. Zant, 888 F.2d 1579 (11th Cir. 1987). (Misc).

In this case a Georgia State death row inmate was refused permission to consult with his attorney regarding his writ of habeas corpus because he hadn't shaved. He filed a § 1983 action alleging a violation of his constitutional right to access to the courts. Solomon's reason(s) for not shaving weren't specified in the report. After filing his complaint, Solomon was executed and his widow was allowed to be substituted as party plaintiff. The trial court awarded her nominal and punitive damages and costs, but the appellate court reversed. The prison administrator's justifications for the grooming policy were identification, hygiene and the promotion of order and discipline. The appellate court held that the regulations were reasonably related to the above listed legitimate penological interests. It listed the Turner reasonableness test criteria as being generally applicable: (1) Whether a valid rational connection exists between the policy and the legitimate government interests, (2) Whether an alternative means of exercising the constitutional right is available to the prisoner in spite of the policy, (3) Whether, and the extent to which, accommodation of the asserted right will have an impact on other inmates, prison staff, or the prison resources in general, and (4) Whether the regulation represents an "exaggerated response" to prison concerns. Turner v. Safely, 482 U.S. 78 (1987).

The cases cited in this table are listed in the same order as they are found in the presentation of case synopses that comprises the body of this booklet. In this table of cases, case citations are listed first as to classification (i.e., jail, prison), then by circuit, then in order of date - oldest to most recent. State court cases are placed within their respective federal circuit; immediately above each state case name is the name of its respective state. Note that within each circuit, the federal cases are listed first, then the list of state cases is presented.

Abbreviations the meanings of which may not be obvious are as follows: Naz = Nazirite; Ras = Rastafarian; AITM = American Indigenous Tribal Member. Parenthetical entries found after each citation relate, directly or indirectly, to the basis for the prisoner/plaintiff's complaint. For example, "Naz." indicates that the prisoner complained of a violation of his right to the free exercise of his religious practice, which was that of the Nazirite. "Liberty" indicates that the basis for the complaint was a violation of the prisoner's constitutionally protected liberty interest.

Case citations that are preceded by an asterisk relate to federal appellate court cases. Unpublished cases are identified as such.

(II) DETENTION; (A) PRE-TRIAL DETENTION (JAIL)

1st Circuit

Smith v. Sampson, 349 F. Supp. 268 (D. N.H. 1972). (Misc).

2nd Circuit

New York

People v. Krueger, 306 N.Y.S.2d 359 (Sup. Ct. 1969). (Islam).

Christman v. Skinner, 323 N.Y.S.2d 767 (Sup. Ct. 1971). (Misc).

People v. Vega, 51 A.D.2d 33 (N.Y. App. Div. 1976). (Misc).

4th Circuit

Virginia

Palmer v. Virginia, 416 S.E.2d 52 (Va. Ct. App. 1992). (Misc).

10th Circuit

*United States v. Lamb, 575 F.2d 1310 (10th Cir. 1978). (Misc).

(II) DETENTION; (B) POST TRIAL DETENTION (PRISON)

US

Goulden v. Oliver, 442 U.S. 922 (1979). (Jew).

DC Circuit

None.

1st Circuit

None.

2nd Circuit

*Sostre v. Preiser, 519 F.2d 763 (2nd Cir. 1975). (Misc).

Maguire v. Wilkinson, 405 F. Supp. 637 (D. Conn. 1975). (Naz).

*Burgin v. Henderson, 536 F.2d 501 (2nd Cir. 1976). (Islam, Sunni).

Monroe v. Bombard, 422 F. Supp. 211 (S.D.N.Y. 1976). (Islam, Sunni).

Moskowitz v. Wilkinson, 432 F. Supp. 947 (D. Conn. 1977). (Jew).

Phillips v. Coughlin, 586 F. Supp. 1281 (S.D.N.Y. 1984). (Ras).

*Fromer v. Scully, 874 F.2d 69 (2nd Cir. 1989). (Jew).

*Benjamin v. Coughlin, 905 F.2d 571 (2nd Cir. 1990). (Ras).

New York

Solomon v. Coughlin, III, 456 N.Y.S.2d 125 (Sup. Ct. 1982). (AITM).

Overton v. Dept. of Correct'l Services, 499 N.Y.S.2d 860 (Sup. Ct. 1986). (Ras).

3rd Circuit

Poe v. Werner, 386 F. Supp. 1014 (M.D. Penn. 1974). (Misc.).

*Dreibelbis v. Marks, 675 F.2d 579 (3rd Cir. 1982). (Religion).

*Dreibelbis v. Marks, 742 F.2d 792 (3rd Cir. 1984). (Religion).

*Cole v. Flick, 758 F.2d 124 (3rd Cir. 1985). (AITM).

*Wilson v. Schillinger, 761 F.2d 921 (3rd Cir. 1985). (Ras).

4th Circuit

Collins v. Haga, 373 F. Supp. 923 (W.D. Va. 1974). (Misc).

Williams v. Batton, 342 F. Supp. 1110 (E.D.N.C. 1972). (Religion).

Howard v. Hogan, 348 F. Supp. 1204 (E.D. Va. 1972). (Liberty).

*Gallahan v. Hollyfield, 670 F.2d 1345 (4th Cir. 1982). (AITM).

5th Circuit

*Brown v. Wainwright, 419 F.2d 1376 (5th Cir. 1970). (Religion).

*Brooks v. Wainwright, 428 F.2d 652 (5th Cir. 1970). (Religion).

*Hill v. Estelle, 537 F.2d 214 (5th Cir. 1976). (Gender).

*Shabazz v. Barnauskas, 598 F.2d 345 (5th Cir. 1979). (Islam).

*Scott v. Mississippi Dept. of Corrections, 961 F.2d 77 (5th Cir. 1992). (Ras).

Diaz v. Collins, 872 F. Supp. 353 (E.D. Tex. 1994). (AITM).

Lewis v. Scott, 910 F. Supp. 282 (E.D. Tex. 1995). (Islam).

*Hicks v. Garner, 69 F.3d 22 (5th Cir. 1995). (Ras).

TEXAS

Morris v. Collins, 916 S.W.2d 527 (Tex. App. 1995). (Liberty).

6th Circuit

*Weaver v. Jago, 675 F.2d 116 (6th Cir. 1982). (AITM).

Abdol-Rashaad v. Seiter, 690 F. Supp. 598 (S.D. Ohio 1987). (Estab. Clause).

McCoy v. Celeste, 836 F.2d 1348 (6th Cir. 1988). (Unpublished) (Naz).

*Pollock v. Marshall, 845 F.2d 656 (6th Cir. 1988). (AITM).

Wellmaker v. Dahill, 836 F. Supp. 1375 (N.D. Ohio 1993). (Islam/Hebrew).

Phipps v. Parker, 879 F. Supp. 734 (W.D. Kentucky 1995). (Jew).

Estep v. Dent, 914 F. Supp. 1462 (W.D. Kentucky 1996). (Jew).

Davie v. Wingard, 958 F. Supp. 1244 (S.D. Ohio 1997). (Naz/Gender).

Ohio

Dillon v. Russell, 621 N.E.2d 491 (Ohio Ct. App. 1993). (Naz).

7th Circuit

*Reed v. Faulkner, 842 F.2d 960 (7th Cir. 1987). (Ras).

8th Circuit

*Blake v. Pryse, 444 F.2d 218 (8th Cir. 1971). (Liberty).

*Ralls v. Wolfe, 448 F.2d 778 (8th Cir. 1971). (Liberty).

United States v. Aaron, 350 F. Supp. 1 (D. Minn. 1972). (AITM).

*Rinehart v. Brewer, 491 F.2d 705 (8th Cir. 1974). (Religion, Liberty).

*Proffitt v. Ciccone, 506 F.2d 1020 (8th Cir. 1974). (Naz?).

*Teterud v. Burns, 522 F.2d 357 (8th Cir. 1975). (AITM).

*Iron Eyes v. Henry, 907 F.2d 810 (8th Cir. 1990). (AITM).

*Kemp v. Moore, 946 F.2d 588 (8th Cir. 1991). (AITM).

*Campbell v. Purkett, 957 F.2d 535 (8th Cir. 1992). (Naz).

*Sours v. Long, 978 F.2d 1086 (8th Cir. 1992). (Naz).

*Quinn v. Nix, 983 F.2d 115 (8th Cir. 1993). (Liberty).

*Bettis v. Delo, 14 F.3d 22 (8th Cir. 1994). (AITM).

*Hamilton v. Schriro, 74 F.3d 1545 (8th Cir. 1996). (AITM).

Missouri

Adams v. Moore, 861 S.W.2d 680 (Mo. Ct. App. 1993). (AITM).

9th Circuit

Winsby v. Walsh, 321 F. Supp. 523 (C.D. Calif. 1971). (Misc).

*Daugherty v. Reagan, 446 F.2d 75 (9th Cir. 1971). (Misc).

*Capoeman v. Reed, 754 F.2d 1512 (9th Cir. 1984). (AITM).

McCabe v. Arave, 626 F. Supp. 1199 (D. Idaho 1986). (Christian).

*McCabe v. Arave, 827 F.2d 634 (9th Cir. 1987). (Christian).

*Swift v. Lewis, 901 F.2d 730 (9th Cir. 1990). (Naz).

*Friedman v. State of Arizona, 912 F.2d 328 (9th Cir. 1990). (Jew).

*Wright v. Lewis, 927 F.2d 612 (9th Cir. 1991). (Unpublished) (Ras/Naz).

*Swift v. Lewis, 17 F.3d 396 (9th Cir. 1993). (Unpublished) (Christian/Naz).

Belgard v. State of Hawaii, 883 F. Supp. 510 (D. Hawaii 1995). (AITM).

Abordo v. State of Hawaii, 902 F. Supp. 1220 (D. Hawaii 1995). (AITM).

Abordo v. State of Hawaii, 938 F. Supp. 656 (D. Hawaii 1996). (AITM).

Idaho

Wilson v. Idaho, 746 P.2d 1022 (Idaho CT. App. 1987). (Free Expression).

10th Circuit

*Hall v. Bellmon, 935 F.2d 1106 (10th Cir. 1991). (AITM).

*Mosier v. Maynard, 937 F.2d 1521 (10th Cir. 1991). (AITM).

Perry v. Davies, 757 F. Supp. 1223 (D. Kan. 1991). (Religion).

Wright v. Raines, 457 F. Supp. 1082 (D. Kan. 1978). (Sikh).

Oklahoma

Roseborough v. Scott, 875 P.2d 1160 (Okla. Ct. App. 1994). (Naz).

11th Circuit

Harris v. Dugger, 715 F. Supp. 364 (S.D. Fla. 1989). (Ras).

Harris v. Dugger, 757 F. Supp. 1359 (S.D. Fla. 1991). (Ras).

*Harris v. Chapman, 97 F.3d 499 (11th Cir. 1996). (Ras).

*Brightly v. Wainwright, 814 F.2d 612 (11th Cir. 1987). (Religion).

*Solomon v. Zant, 888 F.2d 1579 (11th Cir. 1987). (Misc).

Shabazz v. Barnauskas, 600 F. Supp. 712 (M.D. Fla. 1985). (Islam).

Furqan v. Georgia, 554 F. Supp. 873 (N.D. Ga. 1982). (Islam, Sunni).

The following, organized list of case names is intended to include each case that relates to restrictions placed upon the growth of men's hair that has been addressed by any court, state or federal, and that has resulted in a published case report - other than those that relate to pre- or post-conviction governmental detention. The holdings and/or dicta in these cases may be of value to a plaintiff in the preparation of his argument for the legal invalidity of the restrictive hair regulations that bear upon him in the prison or jail setting.

GOVERNMENTAL SETTINGS

(I) Employment

(A) Education

(1) K-12

1st

Lucia v. Duggan, 303 F. Supp. 112 (D. Mass. 1969).

5th

Conard v. Goolsby, 350 F. Supp. 713 (N.D. Miss. 1972).

9th

CA

Finot v. Pasadena City Bd. of Educ., 250 Cal. App.2d 189 (1967).

11th

Ramsey v. Hopkins, 320 F. Supp. 477 (N.D. Ala. 1970).

(2) Collegiate

5th

Hander v. San Jacinto Junior College, 519 F.2d 273 (5th Cir. 1975).

(B) Public Safety

(1) Emergency Medical Technician

11th

Rafford v. Randle E. Ambulance Serv., Inc. 348 F. Supp. 316 (S.D. Fla. 1972).

(2) Firefighter

DC

DC

Kennedy v. District of Columbia, 654 A.2d 847 (D.C. 1994).

2nd

Kamerling v. O'Hagan, 512 F.2d 443 (2nd Cir. 1975).

3rd

Elko v. McCarey, 315 F. Supp. 886 (E.D. Penn. 1970).

11th

Lindquist v. City of Coral Gables, 323 F. Supp. 1161 (S.D. Fla. 1971).

Yarbrough v. City of Jacksonville, 363 F. Supp. 1176 (M.D. Fla. 1973).

(C) Law Enforcement

(1) Police

U.S.

Kelley v. Johnson, 425 U.S. 238 (1976).

DC

Marshall v. District of Columbia, 392 F. Supp. 1012 (D.C. Cir. 1975).

1st

MA

Bd. of Selectmen v. Civil Serv. Comm'n, 387 N.E.2d 1198 (Mass. App. Ct. 1979).

2nd

Dwen v. Barry, 483 F.2d 1126 (2nd Cir. 1973).

NY

Greenwald v. Frank, 70 Misc.2d 632, 334 N.Y.S.2d 680 (1972).

Greenwald v. Frank, 47 A.D.2d 628, 363 N.Y.S.2d 955 (1975).

8th

Stradley v. Andersen, 349 F. Supp. 1120 (D. Neb.1972).

11th

Ashley v. City of Macon, Georgia, et al., 377 F. Supp. 540 (M.D. Ga. 1974).

9th

OR

Burback v. Goldschmidt, 521 P.2d 5 (Or. App. 1974).

(2) Detention

2nd

Rourke v. New York State, 915 F. Supp. 525 (N.D.N.Y. 1995).

NY

Rourke v. New York State, 615 N.Y.S.2d 470 (N.Y. App. Div. 1994).

Rourke v. New York State, 603 N.Y.S.2d 647 (N.Y. Sup. Ct. 1994).

6th

Blanken v. Ohio Dept. of Rehab. and Corr., 944 F. Supp. 1359 (S.D. Ohio 1996).

(D) Miscellaneous

DC

Brown v. D. C. Transit Sys., Inc., 523 F.2d 725 (D.C. Cir. 1975).

6th

OH

Schneider v. Ohio Youth Comm'n, 287 N.E.2d 633 (Ohio Ct. App. 1972).

9th

OR

Brookes v. Tri-County Metro. Transp. Dist., 526 P.2d 590 (Or. Ct. App. 1974).

10th

CO

Chiappe v. State Personnel Bd., 622 P.2d 527 (Colo. 1981).

(II) Detention

(A) Pre-trial detention (jail)

(see separate listing)

(B) Post trial detention (prison)

(see separate listing)

(III) Student

(A) K-12

US

New Rider v. Bd. of Educ., 414 U.S. 1097 (1973).

1st

Richards, Jr. v. Thurston, 304 F. Supp. 449 (D. Mass. 1969).

Richards, Jr. v. Thurston, 424 F.2d 1281 (1st Cir. 1970).

3rd

Martin v. Davison, 322 F. Supp. 318 (W.D. Penn. 1971).

5th

TX

Barber v. Colorado Indep. Sch. Dist., 901 S.W.2d 447 (Tex. 1995).

Toungate v. Bastrop Indep. Sch. Dist., 842 S.W.2d 823 (Tex. App. 1992).

Bastrop Indep. Sch. Dist. v. Toungate, 922 S.W.2d 650 (Tex. App. 1996).

6th

OH

Royer v. Bd. of Educ., 365 N.E.2d 889 (Ohio Ct. App. 1977).

7th

Breen v. Kahl, 296 F. Supp. 702 (W.D. Wisc. 1969).

Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969).

Crews v. Cloncs, 303 F. Supp. 1370 (S.D. Ind. 1969).

Crews v. Cloncs, 432 F.2d 1259 (7th Cir. 1970).

Arnold v. Carpenter, 459 F.2d 939 (7th Cir. 1972).

Holsapple v. Woods, 500 F.2d 49 (7th Cir. 1974).

8th

Bishop v. Colaw, 450 F.2d 1069 (8th Cir. 1971).

Torvik v. Decorah Community Schools, 453 F.2d 779 (8th Cir. 1972).

9th

AK

Breese v. Smith, 501 P.2d 159 (Alaska 1972).

CA

Jeffers v. Yuba City Unified, Sch. District, 319 F. Supp. 368 (E.D. Cal. 1970).

ID

Murphy v. Pocatello Sch. Dist. #25, 480 P.2d 878 (Idaho 1971).

11th

Griffin v. Tatum, 300 F. Supp. 60 (M.D. Ala. 1969).

Dawson v. Hillsborough Sch. Bd., 322 F. Supp. 286 (M.D. Fla. 1971).

(B) Collegiate

5th

Lansdale v. Tyler Junior College, 470 F.2d 659 (5th Cir. 1972).

8th

Reichenberg v. Nelson, 310 F. Supp. 248 (D. Neb. 1970).

(IV) Military

4th

Brown v. Schlesinger, 365 F. Supp. 1204 (E.D. Va. 1973).

5th

Talley v. McLucas, 366 F. Supp. 1241 (N.D. Tex. 1973).

9th

Khalsa v. Weinberger, 787 F.2d 1288 (9th Cir. 1985).

(V) (In General)

(A) Trespass Law

9th

CA

Cox, 474 P.2d 992 (Cal. 1970).

(B) UE Compensation

10th

CO

Engraff v. Industrial Comm'n, 678 P.2d 564 (Colo. Ct. App. 1983).

11th

FL

Advanced Mobile Home Sys., Inc. v. Unemp. Appeals Comm'n, 663 So.2d 1382 (Fla. Dist. Ct. App. 1995).

9th

CA

Chambers v. California Unemp. Ins. Appeals Bd., 33 Cal. App.3d 923 (Cal. Ct. App. 1973).

(C) Motorcycle Helmet Laws

9th

CA

Buhl v. Hannigan, 16 Cal. App. 4th 1612 (1993).

(D) Immigration

9th

Singh v. INS, 107 F.3d 17 (9th Cir. 1997). (Unpublished Disposition).

NONGOVERNMENTAL SETTINGS

Employment

DC

Boyce v. Safeway Stores, Inc., 351 F. Supp. 402 (D.C. Cir. 1972).

Dodge v. Giant Food, Inc., 488 F.2d 1333 (D.C. Cir. 1973).

Fagan v. National Cash Register Co., 481 F.2d 1115 (D.C. Cir. 1973).

1st

NH

Planchet v. New Hampshire Hosp., 341 A.2d 267 (N.H. 1975).

2nd

Longo v. Carlisle DeCoppet & Co., 403 F.Supp 692 (S.D.N.Y. 1975).

Longo v. Carlisle DeCoppet & Co., 537 F.2d 685 (2nd Cir. 1976).

Tavora v. New York Mercantile Exchange, 101 F.3d 907 (2nd Cir. 1996).

CT

Pik-Wik Stores, Inc. v. Comm'n on Human Rights and Opportunities, 365 A.2d 1210 (Conn. 1976).

NY

Page Airways of Albany, Inc., 376 N.Y.S.2d 32 (N.Y. App. Div. 1975).

3rd

Dripps v. UPS of Penn., Inc., 381 F. Supp. 421 (W.D. Penn. 1974).

Syrek v. Pennsylvania Air Nat'l Guard, 537 F.2d 66 (3rd Cir. 1976).

4th

Earwood v. Continental SE. Lines, Inc., 539 F.2d 1349 (4th Cir. 1976).

MD

Kohli v. Looc, Inc., 654 A.2d 922 (Md. Ct. Spec. App. 1995).

5th

Willingham v. Macon Tel. Publ'g Co., 482 F.2d 535 (5th Cir. 1973).

Willingham v. Macon Tel. Publ'g Co., 507 F.2d 1084 (5th Cir. 1975).

McConnell v. Mercantile Nat'l Bank at Dallas, 389 F. Supp. 594 (N.D. Tex. 1975).

Morris v. Texas and Pac. Ry. Co., 387 F. Supp. 1232 (M.D. La. 1975).

Thomas v. Firestone Tire and Rubber Co., 392 F. Supp. 373 (N.D. Tex. 1975).

6th

Roberts v. General Mills, Inc., 337 F. Supp. 1055 (N.D. Ohio 1971).

Bujel v. Borman Food Stores, Inc., 384 F. Supp. 141 (E.D. Mich. 1974).

Barker v. Taft Broadcasting Co., 549 F.2d 400 (6th Cir. 1977).

MI

Bedker v. Domino's Pizza, Inc., 491 N.W.2d 275 (Mich. Ct. App. 1992).

7th

Keys v. Continental Ill. Nat'l Bank and Trust Co., 357 F. Supp. 376 (N.D. Ill. 1973).

IN

Indiana Civil Rights Comm'n v. Sutherland Lumber, 394 N.E.2d 949 (Ind. Ct. App. 1979).

8th

Jahns v. Missouri Pac. R.R. Co., 391 F. Supp. 761 (E.D. Mo. 1975).

Knott v. Missouri Pac. R.R. Co., 389 F. Supp. 856 (E.D. Mo. 1975).

Knott v. Missouri Pac. R.R. Co., 527 F.2d 1249 (8th Cir. 1975).

Wamsganz v. Missouri Pac. R.R. Co., 391 F. Supp. 306 (E.D. Mo. 1975).

Miller v. Missouri Pac. Ry. Co., 410 F. Supp. 533 (W.D. Mo. 1976).

Hearth v. Metropolitan Transit Comm'n, 436 F. Supp. 685 (D. Minn. 1977).

9th

Aros v. McDonnell Douglas Corp., 348 F. Supp. 661 (C.D. Cal. 1972).

Donohue v. Shoe Corp. of America, 337 F. Supp. 1357 (C.D. Cal. 1972).

Baker v. California Land Title Co., 349 F. Supp. 235 (C.D. Cal. 1972).

Baker v. California Land Title Co., 507 F.2d 895 (9th Cir. 1974).

WA

Albertson's, Inc. v. Washington State Human Rights Comm'n, 544 P.2d 98 (Wash. Ct. App. 1976).

11th

Willingham v. Macon Tel. Publ'g Co., 352 F. Supp. 1018 (M.D. Ga. 1972).

EEOC v. Sambo's of Georgia, Inc., 530 F. Supp. 86 (N.D. Ga. 1981).