Petitioner James Crawford, an inmate housed at Pelican Bay State Prison and a validated gang member, attempted to send a letter through the prison mail system. The letter was addressed to a newspaper and argued that certain California inmates (including petitioner) should be recognized as political prisoners. Prison officials confiscated the letter after concluding it threatened prison security because in it petitioner refers to himself as a "New Afrikan Nationalist Revolutionary Man" and because it could contain hidden messages promoting gang activity.
There is no evidence in the record supporting the contention that the letter promotes gang activity, contains coded messages, or otherwise poses a threat to prison security. We therefore conclude that confiscation of the letter violates petitioner's First Amendment right to free speech, grant the petition for writ of habeas corpus, and order that petitioner's confiscated letter be sent to the addressee.
Facts from the Record Below
Petitioner placed a two-page letter addressed to "JR" care of the "San Francisco Bay View National Black Newspaper" (newspaper) in the Pelican Bay State Prison mail system and prison officials confiscated it. The letter was apparently written in response to an article authored by JR regarding political prisoners in the California prison system. Petitioner took issue with the article because it "recognized only three political prisoner[s] throughout the State of California." There are, according to petitioner, "many" prisoners, like himself, in solitary confinement "because of [their] political beliefs as a New Afrikan Nationalist Revolutionary `Man.'"
The letter was intercepted by Correctional Officer J. Silveira, who is "responsible for monitoring the mail of Black Guerrilla Family (BGF)
Before filing his petition for writ of habeas corpus here, petitioner first exhausted his administrative remedies by taking his challenge to the highest level, the director's level appeal. He began the process by first filing a grievance with the prison staff asking that the letter be delivered as addressed; the usual levels of review were bypassed and petitioner's challenge was sent directly to respondent, Acting Warden Greg Lewis (warden). The warden refused to send the letter, instead holding it pending "further investigation of gang activities." The sole basis for this decision was the warden's conclusion that the letter "is contraband" because in it petitioner is "referring to his beliefs as being that of the N.A.R.N., which has been well established as a BGF ideology." In arriving at that conclusion, the warden relied on information provided by Lieutenant Wise, who "reviewed the mailing in question." Wise, according to the warden, said that "N.A.R.N. ideology [was] created by the Black Guerilla Family (BGF) prison gang members and is recognized by gang investigators throughout the state as being exclusively utilized by inmates who associate themselves with the BGF prison gang." Neither party has included any report by Wise explaining the basis for this statement.
Petitioner followed the administrative procedures by appealing the warden's decision, seeking a director's level appeal decision. (Cal. Code Regs., tit. 15, § 3084.7.) The director found that the letter was properly confiscated. Again, the sole basis for confiscating the letter was that petitioner referred to himself as a "New Afrikan Nationalist Revolutionary `Man'" and that "use of this language shows his allegiance and loyalty as a soldier for the BGF." This warranted the confiscation, the director concluded, because, "[e]xcept as authorized by the warden, inmates shall not possess or have under their control any matter of a character tending to incite murder, riot, or any form of violence. The appellant's mail was properly considered contraband based [on] the gang activity information included within the letter."
Petitioner next filed a petition for writ of habeas corpus in Del Norte County Superior Court contending that his letter was not gang related and
Silveira's Declaration in Opposition to the Petition
With his return, the warden submitted a declaration from Silveira. The declaration is short, consisting of barely three pages with the third page containing only two lines of text. The first page sets forth Silveira's expertise and his opinion about the BGF. In detailing his expertise, Silveira explains his background as a correctional officer and experience with prison gangs, which consists of his work in the institutional gangs investigations unit at Pelican Bay State Prison for the past year and a half. During that time Silveira has investigated, monitored, and documented gang behavior, including BGF. He goes on to explain that he has been trained to identify and investigate prison gangs in general and the BGF in particular. This training includes conducting cell searches of BGF members and associates, investigating BGF gang activity in prison, validating inmates as members or associates of prison gangs, and debriefing former members and associates who want to disassociate from their gang.
Without providing any explanation or evidence in support, Silveira asserts that "BGF is a recognized prison gang whose members participate in and direct criminal activity" and that BGF members have a long history of assaulting inmates and correctional officers. Silveira states that the "BGF is [not] a political or cultural organization with a purely political agenda" as it claims, but rather is a prison gang whose "ideology and activities have led to institutional security breaches statewide, including at Pelican Bay." Although he does not provide any further explanation or any examples of prior incidents supporting this conclusion, Silveira states that the gang has a history of using "sophisticated codes so that seemingly innocuous writings contain messages about gang activity."
Silveira next addresses petitioner and his reason for intercepting the letter. In two paragraphs Silveira explains that petitioner is "a validated BGF
The Declarations in Support of the Petition
Petitioner's traverse includes two supportive declarations. His own declaration says that "[t]he purpose of my April 11, 2010 letter to JR was purely political" and that in it he "did not communicate about any illegal or gang activity, either expressly or through a code." Rather, his letter was urging that "more prisoners in California [should be recognized] as political prisoners, especially New Afrikan prisoners in Pelican Bay State Prison."
The second declaration is an expert opinion from James T. Campbell, a professor at Stanford University whose research focuses on African-American history. From reading a copy of the confiscated letter, Campbell concludes petitioner "is rooted in a political tradition with deep roots in African-American intellectual and political history" and the language he "uses to communicate his ideas reflects a thorough immersion in and understanding of this history and ideological tradition." According to Campbell, "the terms `New Afrika' and `New Afrikan' are consistent with the movement in the 1960s and 1970s to allow African-Americans the right of self-determination
Petitioner argues that confiscation of his letter violates his First Amendment right to free speech because such confiscation does not further the penological interests of prison security. This is so, petitioner contends, because the only evidence offered in support of the confiscation is "conclusory opinions and unsubstantiated speculation." We agree.
First Amendment and Prisoners
Where the facts are not in dispute, violations of the First Amendment are reviewed de novo. (Bose Corp. v. Consumers Union of U.S., Inc. (1984) 466 U.S. 485, 499 [80 L.Ed.2d 502, 104 S.Ct. 1949].) "The requirement of independent appellate review reiterated in New York Times Co. v. Sullivan [(1964) 376 U.S. 254 [11 L.Ed.2d 686, 84 S.Ct. 710]] is a rule of federal constitutional law.... It reflects a deeply held conviction that judges — and particularly Members of this Court — must exercise such review in order to preserve the precious liberties established and ordained by the Constitution." (Id. at pp. 510-511.)
Indeed, the measure of our resolve as a society to protect free expression must be our willingness to tolerate unpleasant speech by those speaking from the margins of political opinion. As Justice Kennedy has pointed out, "[t]he First Amendment is often inconvenient. But that is beside the point. Inconvenience does not absolve the government of its obligation to tolerate speech." (International Soc. for Krishna Consciousness, Inc. v. Lee (1992) 505 U.S. 672, 701 [120 L.Ed.2d 541, 112 S.Ct. 2701] (conc. opn. of Kennedy, J.).) To that end, the First Amendment allows the burning of our flag because "[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." (Texas v. Johnson (1989) 491 U.S. 397, 414 [105 L.Ed.2d 342, 109 S.Ct. 2533].) Similarly, the First Amendment allows Nazis to march in a primarily Jewish neighborhood and people to protest military funerals with hateful messages. (See National Socialist Party v. Skokie (1977) 432 U.S. 43 [53 L.Ed.2d 96, 97 S.Ct. 2205]; Snyder v. Phelps, supra, 562 U.S. ___ [131 S.Ct. 1207].)
In Thornburgh, the Supreme Court distinguished between incoming and outgoing mail, observing that prison security implications with the latter "are of a categorically lesser magnitude than the implications of incoming materials." (Thornburgh, supra, 490 U.S. at p. 413.) The court explained that dangerous or inflammatory "outgoing correspondence ... cannot reasonably be expected to present a danger to the community inside the prison." (Id. at pp. 411-412.) "Dangerous outgoing correspondence is more likely to fall within readily identifiable categories: examples noted in [Procunier] include escape plans, plans relating to ongoing criminal activity, and threats of blackmail or extortion." (Id. at p. 412.) On the other hand, "[o]nce in the prison, material of this kind reasonably may be expected to circulate among prisoners, with the concomitant potential for coordinated disruptive conduct. Furthermore, prisoners may observe particular material in the possession of a fellow prisoner, draw inferences about their fellow's beliefs, sexual orientation, or gang affiliations from that material, and cause disorder by acting accordingly." (Ibid.)
Incoming mail is more easily censored. In Turner the court stated that incoming mail may be censored when four elements are met: (1) whether there is a "`valid, rational connection' between the prison regulation [censoring the mail] and the legitimate governmental interest put forward to justify it"; (2) "whether there are alternative means of exercising the right[s] that remain open to prison inmates"; (3) "the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the
This area of the law has been settled for over two decades with Thornburgh and Procunier controlling outgoing mail and Turner controlling incoming mail, yet the warden urges us to apply the more restrictive test for incoming mail articulated in Turner to outgoing mail if it is "gang-related." He argues that gang-related outgoing mail is just as dangerous as incoming mail "because prison gangs originated within the prison system and their influence extends beyond one institution." We do not see justification for such a rule.
While we recognize that gang influence extends through many if not all prisons, we do not see how that fact provides us with the legal authority to ignore binding Supreme Court precedent that places the type of speech at issue here on "`the highest rung of the hierarchy of First Amendment values.'" (Snyder v. Phelps, supra, 562 U.S. at p. ___ [131 S.Ct at p. 1215].) The controlling United States Supreme Court authorities do not make any special exceptions for outgoing mail if it is gang related, nor does the warden cite any case that does. Nor does the warden explain how outgoing mail will affect internal security without it first coming back into prison facilities. And if such mail reenters the prison, it is subject to the more restrictive test, undermining any need to apply that more restrictive test to outgoing mail.
Additionally, the warden's argument must also be placed in perspective. He is arguing the difference between two competing legal standards, whether he must show that confiscating the mail is "no greater than is necessary or essential to the protection" of prison security as required by Procunier, supra, 416 U.S. at page 413, as opposed to whether there is a rational connection between the confiscation and threat to prison security as required by Turner, supra, 482 U.S. at pages 89-90. While there is a difference between these two tests, even the more lenient Procunier test only allows prison officials to confiscate outgoing letters that have been shown to pose legitimate threats to prison security.
Was the Letter Properly Intercepted?
In an attempt to satisfy the outgoing mail standard articulated in Procunier, the warden argues that by preventing petitioner from mailing the letter, Department of Corrections and Rehabilitation "staff thwarted his attempt to promote the BGF by forwarding BGF ideology outside the prison." The warden's argument is flawed for two reasons. First, the argument is based solely on the unsupported assertions and speculative conclusions in Silveira's declaration. The declaration is incompetent as evidence because it contains no factual allegations supporting those assertions and conclusions. Second, even
The declaration here has no evidentiary value because Silveira's conclusions are unsupported and, as far as we can tell from this record, are based solely on speculation or conjecture. The declaration says that when petitioner refers to himself as a "New Afrikan Nationalist Revolutionary Man" it "shows that he is a BGF member or associate." But there is no evidence in the declaration that ties a "New Afrikan Nationalist Revolutionary Man" to the BGF. What Silveira does state is that "[b]ased on my training and experience, this phrase refers to the BGF ideology ...." But he does not explain the training or experience that leads him to this conclusion. Without any such factual basis, the conclusion is not evidence.
Silveira also says in his declaration that "BGF members and associates use ... coded messages to try to promote and engage in BGF gang activity undetected by correctional officers and outside law enforcement agencies" and that "[m]y training and experience lead me to believe that Crawford's letter also contained coded messages about gang activity ...." Again, he states no facts to support this conclusion. He does not cite to any prior instance where BGF members used coded messages and he cannot point to any code in petitioner's letter. Indeed, he tacitly admits there is no evidence of coded messages by stating that such coded messages are "undetected by correctional officers."
The portion of Silveira's declaration regarding the ultimate question in this case — whether the letter threatens prison security — is similarly flawed. He
Even if the declaration were to be considered, the warden does not show that confiscation of the letter was either "necessary" or "essential" to protecting prison security, as required by Procunier. The warden argues that the letter threatens prison security because it references BGF ideology; but this argument is flawed. As noted above, we do not know what gang ideology petitioner is purportedly promoting because Silveira does not define or explain the so-called "BGF ideology." The record of the administrative proceedings below and the declaration by Silveira here both presume a BGF ideology, but never explain the ideology itself or how that ideology threatens prison security. For this reason alone, the warden fails to meet his burden under Procunier.
Nor has the warden shown how the letter promotes the so-called BGF ideology. Silveira's declaration contains no explanation of how petitioner's reference to himself as a "New Afrikan Nationalist Revolutionary Man" promotes an ideology. In fact, Silveira's assertion is illogical; he opines that petitioner shows he is a BGF member by referring to himself as a "New Afrikan Nationalist Revolutionary Man" and then that, by referring to himself as a "New Afrikan Nationalist Revolutionary Man," petitioner is promoting gang activity. Assuming it is true that petitioner is a BGF member because he identified himself as a "New Afrikan Nationalist Revolutionary Man," it does not follow that petitioner is promoting the gang by that identification. The warden does not attempt to explain how a prisoner's statement to someone outside the prison system to the effect of "I am a gang member" promotes the gang.
This case is similar to the situation described in an unpublished order by Judge Susan Illston of the United States District Court. In Harrison v. Institutional Gang of Investigations (N.D.Cal., Feb. 22, 2010, No. C 07-3824 SI (pr)) 2010 WL 653137 (Harrison), a prisoner brought a civil rights action because of, among other things, confiscation of an outgoing letter that prison officials claimed promoted the BGF gang. In defending the suit, the Attorney General moved for summary judgment, arguing that the letters threatened prison security because they referenced "Black August," promoted "the New Afrikan Revolutionary Nationalism," and were addressed to the New Afrikan Collective Think Tank, the George Jackson University and the New Afrikan Institute of Criminology. (Id. at p. *3.) Unlike here, there was evidence presented to support the position that the letters posed a threat to prison security: "Defendants presented evidence that Black August is observed and promoted by BGF, and is a time during which BGF members advocate retaliation against correctional officers and others. Defendants presented evidence that the New Afrikan Revolutionary Nationalist[s], the New Afrikan Collective Think Tank, the George Jackson University and the New Afrikan Institute of Criminology promote BGF." (Id. at p. *6.)
Judge Illston nonetheless found there was not sufficient evidence to justify confiscation of the letter, observing that "[d]efendants take a very expansive view of what might `promote' a prison gang's illicit activities and apply it with gusto, while the First Amendment requires a more nuanced approach." (Harrison, supra, 2010 WL 653137 at p. *6.) Defendants "appear to contend that a categorical ban on things related to Black August is proper, as they have not identified any particular statement about Black August in Harrison's mail that actually `might be thought to encourage violence.'" (Ibid., citing Procunier, supra, 416 U.S. at p. 416.) As such, Judge Illston found that "[d]efendants have failed to meet their burden to show that the confiscation of Harrison's outgoing mail was no greater than necessary to protect the asserted interest of prison security and safety" and denied summary judgment. (Harrison, at p. *6.)
The petition for writ of habeas corpus is granted and petitioner's confiscated letter is ordered to be sent to the addressee.
Kline, P.J., and Richman, J., concurred.