In re BARBARO ESCOBEDO ARIAS et al. on Habeas Corpus
Crim. No. 24307
Supreme Court of California
Oct. 9, 1986
42 Cal. 3d 667 | 230 Cal. Rptr. 505 | 725 P.2d 664
Robert N. Chargin, Public Defender, and David Wellenbrock, Deputy Public Defender, for Petitioners.
Margaret C. Crosby, Alan L. Schlosser and Amitai Schwartz as Amici Curiae on behalf of Petitioners.
OPINION
BIRD, C. J.—Does the installation of bugging equipment in the chapel complex of a Youth Authority facility violate the religious freedom or privacy rights of Youth Authority wards?
I.
Petitioner Arias was a ward of the Youth Authority (YA) at the Karl Holton School, Northern California Youth Center.1 From time to time, petitioner participated in religious services held in the Protestant chapel. These services include: (1) worship, (2) music and art, (3) bible studies, (4) prayers and auricular confessions, (5) individual spiritual counselling, and (6) group counselling. Some of these activities, such as worship, are group activities open to the entire Karl Holton School community. Others, such as confessions and counselling, are conducted privately between the chaplain and individual wards.
The Protestant chapel complex consists of a large room that serves as the chapel, various smaller rooms, and a foyer (or “vestibule“) located between the chapel and the doors leading outside. On one side of the foyer is a restroom, and on the other, the chaplain‘s office. Worship services are held exclusively in the chapel, while confessions and private counselling sessions are conducted in the chapel, the foyer, or the chaplain‘s office.2
In July or August of 1982, as part of its plan to improve security,3 the YA updated electronic surveillance throughout the Karl Holton School and
The microphone has been installed but the wires have not been connected. The YA intends to connect the microphone by wires to a “control center.”
Ronald R. Lowry, chief of the YA Facilities Planning Bureau, described in an affidavit how the electronic sound security system at the school is intended to operate. Sixty microphones, including the chapel microphone, have been “strategically” placed throughout the school. The microphone inputs are grouped into 15 monitoring channels, 1 channel for each dormitory unit, serving kitchen, gymnasium, and chapel complex. The microphones monitor sound throughout the facility.
As Lowry explained, the system serves its security function in two ways: first, it acts as an alarm system. A preset noise-level (decibel) threshold is established for each of the 15 channels. Operators in the main control room manually set a threshold level for each channel by turning a dial. When the noise level in a given location reaches or exceeds the threshold level for only a moment, a warning light is illuminated in the control center. When the threshold level is reached or exceeded for a longer period, or when two or more momentary intrusions at or above the threshold level occur within a prescribed period, the system illuminates a warning light and activates the control room speaker, enabling YA personnel to listen to the sounds in the particular location.
Another security objective, Lowry explained, is “information gathering.” Once a noise of sufficient loudness and duration or repetition activates the control room speaker, the control room staff listen to the sounds coming from the signal area. If the staff discovers that a security problem exists,
The Protestant chapel microphone is monitored on a separate channel. Thus, its threshold level can be adjusted separately. This threshold is supposed to be set just above the “ambient noise level,” i.e., just above the level of “background” noise so that only “loud” rather than “routine” noises will trigger the control room speaker.
Apparently, the determination as to what the threshold level will be is left to the discretion of control-room personnel. Neither party has produced any guidelines that would prevent the level from being set so that a conversation at normal speaking level would trigger the alarm and speaker. At oral argument, counsel for the YA explained only that the incentive for monitoring chapel conversations is diminished by the fact that activation of the control room speaker by one channel effectively prevents monitoring of other channels covering the rest of the Karl Holton facility. Nevertheless, the existence of a microphone in the chapel renders it possible for staff to monitor conversations there which occur at levels below that of a normal speaking voice.
The chapel microphone can be turned off at the chaplain‘s request. However, the YA retains ultimate authority to deny such a request. If a request is honored, security personnel are supposed to come to the chapel and turn off the device. Once that is done, personnel in the control room are unable to monitor sounds in the chapel. The device cannot be reactivated until security personnel return to the chapel.
The chapel monitoring system was tested in March of 1982 and again in June of 1982. The testing sought to determine the optimum microphone placement within the chapel complex and to test the threshold-setting capabilities of the control room equipment. The March test was unsuccessful due to problems with the control room equipment. While the record is somewhat unclear on this point, the apparent problem was that the control room equipment was too sensitive and the microphone input overloaded the system. Thus, the threshold levels could not be accurately adjusted.
By the time of the June test, however, new control room equipment had been installed and these problems had been solved. Microphones were placed in three locations within the chapel complex6 and monitoring was done at four levels of ambient noise, ranging from complete silence to “loud”
Neither the March nor the June test involved any formal testing of the chapel microphone‘s ability to detect sound emanating from the chaplain‘s office. However, the Reverend Kenneth Leep, the school chaplain, testified that he had conducted informal tests in this regard. The chaplain and another person conducted a conversation in his office, first with the door open and then with the door closed. Reverend Leep then listened to a tape of the experiment in the control room. These informal experiments indicated that conversations could be heard with the door open or closed. Once the door was closed, however, the content of the conversations could not be discerned.
Reverend Leep testified that microphones were in the ceiling and on the hanging light fixture of the foyer during these tests. The record is unclear as to which one of the foyer microphone placements was utilized in these tests. The record fails to disclose the level of background noise at the time the tests were conducted, such as the operation of ventilation systems or activity in the rest of the chapel.
Lowry also offered his opinion as to the ability of the system to monitor conversations in the chaplain‘s office. His opinions were based on conjecture, rather than on actual testing. In his affidavit, he stated that “a microphone placed [] in the vestibule would not be able to pick up the contents of a normal conversation in the chaplain‘s office, provided the door between the office and the vestibule [were] closed and there [were] normal noise conditions in the chapel and in the control center.” The nature of these “normal”
In November of 1981, Eugene Escobedo and Donald Sowell, two wards at the Karl Holton School, filed a petition for writ of habeas corpus in the San Joaquin Superior Court. The petitioners sought to enjoin the planned installation of the electronic listening devices in the school‘s chapel and to declare the use of such devices violative of their rights of privacy and religious freedom under the state and federal Constitutions. They also alleged that the placement of the microphones would violate the clergy-penitent communications privilege. (
In November of 1982, petitioners Arias and Bolton filed a petition for habeas corpus on the same grounds. Shortly thereafter, the superior court consolidated the two petitions and appointed counsel for petitioners Arias and Bolton. Following supplemental briefing, in which additional statutory claims under
Noting that “[i]nstitutional security and the protection of staff in penal institutions are a paramount consideration[,]” the trial court placed the burden on the petitioners to show that the security system would be “excessively intrusive” upon their “Fourth Amendment right to privacy.” The court found that the sound security system would constitute “no restriction of petitioner‘s religious freedom” and “would not infringe upon petitioner‘s religious or privacy rights.” Finally, applying the standards of
Thereafter, the court denied a motion for rehearing but granted petitioners a stay to permit them to seek relief in the Court of Appeal. After the Court of Appeal summarily denied a new petition, this court issued an order to show cause returnable to that court, which again denied relief. The present proceedings followed.
II.
Habeas corpus may be sought by one lawfully in custody for the purpose of vindicating rights to which he is entitled while in confinement. (In re Jordan (1972) 7 Cal.3d 930, 932 [103 Cal.Rptr. 849, 500 P.2d 873]; In re Harrell (1970) 2 Cal.3d 675, 682 [87 Cal.Rptr. 504, 470 P.2d 640]; In re Allison (1967) 66 Cal.2d 282, 285 [57 Cal.Rptr. 593, 425 P.2d 193]; In re Riddle (1962) 57 Cal.2d 848, 851 [22 Cal.Rptr. 472, 372 P.2d 304].) There are significant statutory and constitutional issues regarding the status of individuals who remain in the YA‘s custody, even though petitioners are no longer. (See ante, fn. 1.) Since the presence of the chapel microphone has a chilling effect on religious practices in the school, the issues are ripe for adjudication. (See Pierce v. Society of Sisters (1925) 268 U.S. 510, 534-536 [69 L.Ed. 1070, 1077-1078, 45 S.Ct. 571, 39 A.L.R. 468].)
However, it is well settled that habeas corpus petitioners must exhaust available administrative remedies before seeking judicial relief, even where constitutional issues are at the core of the dispute. (In re Dexter (1979) 25 Cal.3d 921, 925 [160 Cal.Rptr. 118, 603 P.2d 35]; In re Muszalski (1975) 52 Cal.App.3d 500, 503, 508 [125 Cal.Rptr. 286].)
The record does not indicate whether petitioners have pursued their administrative remedies in attempting to resolve this dispute. On the other hand, at no time during this litigation has the YA raised the issue of exhaustion. Instead, the YA has consistently evinced a desire to resolve the issue on the merits. (See Dexter, supra, 25 Cal.3d at p. 926.)
Furthermore, the record indicates that the trial court delayed the commencement of the order to show cause hearing so that the parties could attempt to reach a settlement regarding the religious privacy and security needs of the Karl Holton School. At present, it appears that the YA has been fully apprised of petitioners’ claims and has adopted a firm stance in opposition to them. (Cf. In re Serna (1978) 76 Cal.App.3d 1010, 1014 [143 Cal.Rptr. 350] [further exhaustion ordered where neither the court nor prisoners knew how Director of Corrections would rule on prisoners’ religious freedom claims].) In light of these considerations, further exhaustion
III.
Petitioners assert that the proposed sound system unlawfully infringes on their religious freedom and right to privacy. The religious freedom claim is based on article I, section 4 of the California Constitution, the free exercise clause of the First Amendment of the United States Constitution,
The statutory claims will be considered first. The analysis must begin with
The United States Supreme Court has recognized that, “in a jail, or perhaps especially there, the relationships which the law has endowed with particularized confidentiality must continue to receive unceasing protection.” (Lanza v. New York (1962) 370 U.S. 139, 143-144 [8 L.Ed.2d 384, 388, 82 S.Ct. 1218].)
The YA contends that the conditions of
But this does not mean the chaplain must forego using areas of the chapel complex commonly used for religious counselling in order to be protected by
In the institutional setting, such locations would include all parts of the chapel complex used for religious counselling. Reverend Leep, Protestant chaplain at Karl Holton School, testified that he occasionally conducts religious counselling with wards in his office, but more typically, he uses the chapel foyer and the public worship area.12 Accordingly,
The final issue for resolution is whether
The sound monitoring system is designed such that only unusually loud sounds will activate the alarm and control room speaker—if the controls are properly set. Thus, conversations at normal speaking levels will not be monitored in the control room if the system is not abused. However, even with proper use, the system may monitor portions of protected conversations if the participants raise their voices above normal levels.14 Reverend Leep testified that his conversations with wards are not always conducted at normal conversation levels, and, at times, the wards can become “very emotional.”15
On the other hand, anything short of deactivation of the system during the course of such conversations may well result in felonious monitoring should the parties raise their voices sufficiently above a normal conversation level. Consequently, complete deactivation of the system during such conversations appears to be the only method of satisfying the commands of
In sum, this court holds that
This does not end the inquiry. While deactivation of the system during protected conversations may avoid the problems created by
Fortunately, there are more tangible guideposts than either “common sense” or “the tenor of American freedoms” for interpreting how the “reasonable opportunity” standard of
The legislative history of
The bill was then amended to extend protection to prisoners in local detention facilities and persons in YA custody. The amendment added, in relevant part, that the right to observe religious practices “shall not be curtailed except as it may become reasonably necessary to enforce reasonable, proper, and lawful security measures.” (Assem. Amend. to Assem. Bill No. 1213 (1972 Reg. Sess.) June 19, 1972.)
The Assembly passed the amended measure and forwarded it to the Senate on June 30, 1972. There, the bill was further amended to read that persons in YA custody “shall be afforded reasonable opportunities to exercise religious freedom.” (Sen. Amend. to Assem. Bill No. 1213 (1972 Reg. Sess.) Aug. 4, 1972.) The Assembly passed this amended version (5 Assem. J. (1972 Reg. Sess.) p. 7862), and the bill was signed into law on December 22, 1972. (Stats. 1972, ch. 1349, §§ 1-3, p. 2680.)
In light of this history and the language ultimately adopted, it is obvious that the Legislature intended
Cruz was a prisoner who claimed to be a Buddhist. He filed a civil rights action (see
The Supreme Court rejected the lower court‘s approach, stating that while “courts sit not to supervise prisons,” they must nevertheless “enforce the constitutional rights of all ‘persons.‘” (Ibid.) The high court went on to hold that prisoners are protected by rights guaranteed by the free exercise clause of the First Amendment. It guarantees to each prisoner “a reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoners who adhere to conventional religious precepts.” (405 U.S. at p. 322 [31 L.Ed.2d at p. 268].)16
Since the lower court had summarily denied relief, Cruz did not directly rule on how the “reasonable opportunity” standard should be applied in cases such as this one, where security concerns of the institution arguably conflict with the wards’ free exercise of religious practices. However, the court did give some indication of its position on this matter.
The district court held that security concerns should always prevail. The Supreme Court‘s only response to this, albeit indirect, was to rely on an earlier decision outlawing the practice of racial segregation in prison, except when required by “‘the necessities of prison security and discipline.‘” (405 U.S. at p. 321 [31 L.Ed.2d at p. 268] quoting Lee v. Washington (1968) 390 U.S. 333, 334 [19 L.Ed.2d 1212, 1213, 88 S.Ct. 994].) It would appear, then, that the Supreme Court permits institutional security measures to limit a prisoner‘s religious freedom only when such measures are “necessary.”
In the years since Cruz, most courts have invoked a “less restrictive means” standard in this context (see Capoeman v. Reed (9th Cir. 1985) 754 F.2d 1512, 1515; Teterud v. Burns (8th Cir. 1975) 522 F.2d 357), interpreting the high court‘s ruling as requiring a showing of “necessity” before security measures may limit religious expression. At least three courts of appeals have applied an “intermediate standard,” upholding restraints on religious exercise only “‘if the state regulation has an important objective and the restraint on religious liberty is reasonably adapted to achieving that objective.‘” (Madyun v. Franzen (7th Cir. 1982) 704 F.2d 954, 960, cert. den. (1983) 464 U.S. 996 [78 L.Ed.2d 687, 104 S.Ct. 493]; see Dreibelbis v. Marks (3d Cir. 1982) 675 F.2d 579, 581 [62 A.L.R. Fed. 473]; Burgin v. Henderson (2d Cir. 1976) 536 F.2d 501, 503.)
The lead case adopting the “necessity” test is Teterud v. Burns, supra, 522 F.2d 357. Teterud requires courts to be “as vigilant in protecting a prisoner‘s constitutional rights as we are in protecting the constitutional rights of a person not confined.” (Id., at p. 359.) Accordingly, “a regulation which is more restrictive than necessary to meet . . . institutional objectives or which does not serve the objectives advanced will be struck down.” (Ibid.)
Applying these principles, Teterud held that a prison regulation requiring all inmates to maintain short hair violated a Native American inmate‘s free exercise right to maintain long hair for religious reasons. The court rejected the safety arguments advanced by correction officials, finding that these concerns could be satisfied in a manner less restrictive of the inmate‘s exercise of religion.
Other cases have similarly applied a “necessity” or “least drastic means” analysis to prisoners’ free exercise claims. (See Gallahan v. Hollyfield (4th Cir. 1982) 670 F.2d 1345; Wright v. Raines (D.Kan. 1978) 457 F.Supp. 1082; Moskowitz v. Wilkinson (D.Conn. 1977) 432 F.Supp. 947.) Still others have analyzed prisoners’ free exercise claims under the traditional “compelling state interest test” announced in Sherbert v. Verner (1963) 374 U.S. 398, 403 [10 L.Ed.2d 965, 970, 83 S.Ct. 1790].17 (See Kennedy v. Meacham (10th Cir. 1976) 540 F.2d 1057, 1061; Neal v. State of Georgia (5th Cir. 1972) 469 F.2d 446, 450; Barnett v. Rodgers (1969) 133 App.D.C. 296 [410 F.2d 995, 1000]; see also In re Serna, supra, 76 Cal.App.3d at p. 1022 (dis. opn. of Stephens, J.).)18 Recently, the Ninth Circuit concluded that the “weight of relevant cases” support a “least restrictive means” approach. (Capoeman v. Reed, supra, 754 F.2d at p. 1515.)
In light of the confusion as to the meaning of Cruz v. Beto, it is difficult to determine what standard the Legislature intended to adopt in Welfare and
Institutions Code section 1705. The fact that the bill which enacted the statute originally contained a “necessity” standard which did not survive subsequent amendments merely adds to the confusion. In short, it is unclear whether the Legislature intentionally rejected a “necessity” test or whether that test was implicitly incorporated in the broader standard of “reasonable opportunity.” It is most likely that the Legislature simply intended to leave these questions open by adopting the broad standard of Cruz.
However, this court need not enter this briar patch, since another statute resolves petitioners’ religious freedom claim. Four years after the passage of
Although on its face
The YA has never contested the applicability of
The Eric J. court also noted that “[t]he liberty interest of a minor is qualitatively different than that of an adult, being subject both to reasonable regulation by the state to an extent not permissible with adults [citations], and to an even greater extent to the control of the minor‘s parents unless ‘it appears that the parental decisions will jeopardize the health or safety of the child or have a potential for significant social burdens.’ [Citation.]” (Id., at p. 530, quoting In re Roger S. (1977) 19 Cal.3d 921, 934 [141 Cal.Rptr. 298, 569 P.2d 1286].) From this premise, the Eric J. court reasoned that “[w]hen the minor must be removed from the custody of his parents for his own welfare or for the safety and protection of the public [citation], the state assuming the parents’ role, the state also assumes the parents’ authority to limit the minor‘s freedom of action.” (Eric J., supra, 25 Cal.3d at p. 530.)
Eric J.‘s parens patriae logic has its limits. Eric J. involved the state‘s role in carrying out rehabilitation and treatment of youths—a “parental” function. The YA does not contend that the installation of microphones in the chapel is part of its program of rehabilitation and treatment.
Moreover, there is no evidence that rehabilitation or treatment objectives have altered the YA‘s design of security systems in detention facilities.21 Nor has the YA contended that wards need to be subjected to stricter security measures than state prisoners because they are wards of the state. Here, the YA‘s action is motivated purely by security concerns. In fact, it concedes that the provisions of
Having found the provisions of
What, then, are the “rights” at issue here? Respondent argues, as does the dissent, that the rights guaranteed by
De Lancie rejected this approach (id., at pp. 875-876), and with good reason. The federal prisoner‘s rights cases utilize a different balancing formula than that required under
In contrast,
Finally, since the federal cases already accommodate government security concerns in defining the scope of prisoners’ rights,25 it would be inappropriate to use those cases to analyze the first prong of a
For the foregoing reasons, while federal cases may be illustrative of the problems inherent in balancing the state‘s security interests against the rights of detainees (cf. Bailey v. Loggins (1982) 32 Cal.3d 907, 922 [187 Cal.Rptr. 575, 654 P.2d 758] (plur. opn.)), they do not define the scope of rights guaranteed by
In order to remain true to the legislative intent of
Petitioners contend that their rights to religious freedom have been infringed. In the area of religious freedom the basic principles of the state and federal Constitutions are fairly well settled. Both Constitutions guarantee the freedom to hold and exercise religious beliefs. (Cantwell v. Connecticut (1940) 310 U.S. 296, 303-304 [84 L.Ed. 1213, 1218, 60 S.Ct. 900, 128 A.L.R. 1352]; People v. Woody (1964) 61 Cal.2d 716, 718 [40 Cal.Rptr. 69, 394 P.2d 813].) The First Amendment permits “abridge[ment of] religious practices only upon a demonstration that some compelling state interest outweighs the defendants’ interests in religious freedom.” (People v. Woody, supra, 61 Cal.2d at p. 718; see Sherbert v. Verner, supra, 374 U.S. 398, 406 [10 L.Ed.2d 965, 971-972]; Weaver v. Jordan (1966) 64 Cal.2d 235, 241 [49 Cal.Rptr. 537, 411 P.2d 289].)28
Under the federal Constitution, application of these principles requires a determination as to whether any state action imposes a “burden” on the free exercise of religion, and if so, whether a compelling state interest outweighs that infringement. Since
Both parties presented evidence regarding the impact that the presence and operation of listening devices in the Protestant chapel complex at Karl Holton School will have on religious practices. Four chaplains testified it would have a chilling effect.
Rabbi Samuel Graduenz, a member of the State Advisory Committee on Institutional Religion, testified that the value of his work as a Jewish chaplain at Deuel Vocational Institution would be “completely diminished” if listening devices were installed. He emphasized the unique role a religious advisor plays in the institutional setting. “[T]he people under my care feel completely secure and free to talk with me [about] whatever is on their
Harry Warwick served as chaplain at San Quentin Prison and Soledad Correctional Training Facility for more than 30 years. At the time of the hearing, he was a member of the State Advisory Committee on Institutional Religion. He felt that electronic surveillance “would be an infringement upon the privacy and the relationship between the chaplain and his parishoner. . . . [T]here is a relationship between the pastor and his parishoner that is totally private. And I would want to feel that as chaplain an inmate could come to me at any time under any circumstances and discuss without any infringement whatsoever on the relationship, and . . . [a]s for me personally, I would find that a gigantic infringement upon my spiritual ministry. I don‘t want any eavesdropping on what I have to say to a parishoner, none.”
John Day, Protestant chaplain at the YA‘s DeWitt Training Center in Stockton, testified that wards have inquired as to whether his office or the chapel had been “bugged.” They stated that they would be “a lot more cautious in what they said” if the “bugs” were there.
Finally, Reverend Kenneth Leep, Protestant chaplain at Karl Holton School, testified that electronic surveillance within the chapel would have a “dampening effect” on the expression of religion—that the wards would not be “as open and free to speak with the devices there [as] they would be without them there.”
Leep also testified that conversations with the wards are not always quiet and intellectual. Frequently, he explained, “when you tell somebody their mother passed away, they get very emotional. And I‘ve had guys cry. I‘ve had guys scream. I‘ve had guys beat on the pews, throw hymnals, various other things and just kind of venting themselves and letting their emotions out.”
Leep also testified that he often does his spiritual counselling in the chapel rather than his office, because the wards “feel more comfortable [talking] in the chapel.” His office is very small, he explained, and he “can‘t close the door with another person in there very easily.” Sometimes, he finds the chapel a better place for counselling, particularly when he has to tell wards about a death in the family or other “traumatic” news where the wards “want to find a place to pray.” Sometimes he prays with them. Other times
Finally, Leep testified that the planned activation of the chapel microphone has already had detrimental effects. “The little boxes are already in the foyer and I‘ve had a number of wards ask me if they‘re on even when I assure them they‘re not. . . . If I‘m assured they‘re off I don‘t have any problem myself. But I think I would have quite a bit of a problem assuring others that they were off. . . . In fact, I‘ve been taken to the back room and show[n] that the wires are not connected. . . . And yet those who I speak with aren‘t assured of that and so they‘re less likely to talk. So it does have an effect on me in that way.”29
The only ward who testified at the hearing was petitioner Escobedo. He stated that the chapel was “the only place right now that [he] can go and not feel ‘bugged’ or . . . under surveillance. I‘m under sight supervision by the chaplain . . . and I can communicate freely with him without fear of . . . reprisals being held against me by other staff members if they found out some of the things I was discussing with him. . . . [I]t wouldn‘t feel as relaxed and free as it is right now.”
The YA conceded before the trial court that the system has had and will have a chilling effect on the wards’ exercise of religion. However, it withdrew this concession before the Court of Appeal. The YA now contends that petitioners’ rights to free exercise of religion have not been violated.
The YA makes three arguments in support of its position. First, it points out that many of the religious functions in the Karl Holton School chapel are open to the public. Next, the YA contends that the chaplain‘s office is available for private counselling. The conversation will remain unmonitored with the door closed. Finally, it argues that the chaplain‘s ability to have the microphone turned off ensures that religious practices will not be chilled.
As respondent notes, many of the religious services conducted in the Protestant chapel at Karl Holton School are open to the public. However, that does not mean that the microphone has no chilling effect. As several chaplains testified, there is a difference between an individual who comes to share in worship and one who comes to monitor what is being said. When
Respondent‘s next argument also fails. There is no proof that the chaplain‘s office will be free of monitoring. The microphone is only 10 feet away from the office door. (See fn. 5, ante.) Reverend Leep‘s experiment produced inconclusive results. The YA did not demonstrate that Leep was an expert in conducting such tests or otherwise experienced in accurately gathering or reporting such data. The failure to consider such variables as the level of background noises raises serious questions as to the reliability of such tests.
Finally, our dissenting colleague incorrectly asserts that the superior court‘s factual finding that office conversations cannot be monitored is entitled to “great weight.” (Dis. opn., post, at p. 707.) Since our difference of opinion with the lower court stems from technical infirmities in the methods of testing and is not based on the credibility of live testimony, such deference is inappropriate. (See In re Wright (1978) 78 Cal.App.3d 788, 801-802 [144 Cal.Rptr. 535] [“great weight” given to factual determinations made by factfinder “with respect to questions of or depending on the credibility of witnesses the [factfinder] heard and observed“].)
Even assuming the tests were reliable, the relatively small size of the chaplain‘s office permits counselling on a one-to-one basis only. Obviously, for group counselling, monitored areas will have to be utilized. To relegate a ward and his religious advisor to the use of the chaplain‘s office certainly “burdens” religious exercise.31
Even assuming the chaplain‘s authority were absolute, that would only eliminate the burden on his religious exercise. However, the issue here is the rights of the wards. Petitioner presented evidence that the mere presence of the microphone has a chilling effect on a ward‘s willingness to communicate freely during spiritual counselling sessions with the chaplain. The chilling effect occurs whether the microphone is on or off. The wards cannot rely on a chaplain‘s assurances that it is off. Indeed, Paul Scharf, an expert on such matters, testified that it would be very easy to “wire around” the standard wiring so that even the chaplain would not know whether the system was truly disconnected.
Based on this evidence, it appears that the installation of microphones in the Protestant chapel complex has had and will have a chilling effect on the wards’ exercise of religion.32
Having concluded that the YA‘s actions have a chilling effect on petitioners’ freedom of religious exercise, the next task is to determine whether the YA‘s security concerns are “reasonable.” If they are, the balancing formula set forth in
“Reasonableness,” of course, is an objective standard, requiring more than good faith. However, in assessing the existence of a security risk in correctional institutions, courts should give some deference to prison officials’ experience and expertise, unless it is shown that these security concerns are exaggerated or not sincerely held.
Petitioners do not question the YA‘s sincerity. However, they do point out that there has never been a violent attack on a chaplain, ward, or other individual in any chapel within the YA system. Nonetheless, the YA insists that a potential for such an attack exists. This conclusion is reasonable.
According to YA personnel, several “very serious incidents have occurred in or near the chapel” at O. H. Close School, a nearby YA facility. These
The final inquiry—and the crux of this dispute—is whether there exist less drastic alternatives that would not chill the exercise of religion in the chapel complex.
However, this test does not require “prison administrators to establish procedures which would jeopardize institutional security solely because they provide a lesser restriction on [an individual‘s] rights. . . . Courts have only required that if the goal of reasonable institutional
The YA asserts that the sound monitoring system is the least restrictive means of effectively maintaining security within the chapel. It argues that the current security system, which consists only of the personal FM beeper which the chaplain wears, has certain security limitations. Electronic sound surveillance in the chapel would overcome these limitations. This is sufficient proof, the YA contends, to show that among the available alternatives, electronic sound surveillance in the chapel is the means least intrusive of religious exercise.
This argument is not persuasive. Even assuming that the YA‘s security concerns with the FM beeper system are legitimate,37 there are several reasons why the proposed sound monitoring system is not the only alternative for maintaining chapel security.
First, the record discloses no effort by the YA to design a security system that could accommodate the special privacy needs of wards’ religious practices. The decision to install microphones throughout the Karl Holton School facility was made in 1974 in a security task force report for the entire YA system. The report recommended the personal FM beeper system and sound
Furthermore, the record shows no effort by the YA to explore security options other than beepers and sound monitoring—measures which might be less intrusive upon religious practices within the chapel. Several such options have been suggested in the course of this litigation. For example, petitioners introduced evidence of new-technology FM beepers which have sound-transmitting capability and can be triggered by a sudden change in direction. Such beepers would be activated in the event that a ward assaults the chaplain or staff member. In many circumstances, they would also allow the staff person to inform control-room personnel of the nature of the problem at hand in many circumstances.
Of course, such technological improvements are only a partial solution to the security concerns raised by the YA. They would not solve the problems of altercations between wards in the absence of staff members, or altercations between the chaplain and ward(s) during private counselling. However, these concerns might well be met by some combination of additional security measures more particularly tailored to the problem. For example, current policy prohibits wards from entering the chapel when staff members are not present. The chapel is to remain locked at all times unless the chaplain is there. Therefore, altercations between unattended wards would be a problem only when wards made unauthorized entries into the chapel. Surely, an alarm system could be explored as a less intrusive alternative. Yet there is no evidence that the YA has explored this option, even though business and other establishments have undoubtedly found it adequate for their security needs.
As for the threat of an altercation between the chaplain and ward(s) during private counselling, petitioners have conceded that the use of guards or escorts for YA wards during counselling would be an acceptable less intrusive alternative. Although the court need not address the constitutionality of such measures in this case, the YA might do well to explore their effectiveness as alternatives to electronic surveillance. Until the YA explores such alter-
Of course, it is not this court‘s job to design security systems, and the above suggestions are not exhaustive. Ultimately, the YA must determine the effectiveness of less restrictive alternatives. However, it is this court‘s job to ensure that the YA has made a diligent effort to make such determinations. Nothing in the record indicates that it has. In the absence of a more substantial showing that the YA has explored the effectiveness of less intrusive alternatives and found them to be ineffective, this court cannot hold that the sound monitoring system is truly “necessary” for institutional security.
Consequently, the presence of the microphone and the use of the sound security system in the chapel violate
IV.
“[T]he right to free religious expression embodies a precious heritage of our history.” (People v. Woody, supra, 61 Cal.2d at p. 727.) The importance of religion in the treatment and rehabilitation of wards of the YA cannot be ignored. As the court in Barnett v. Rodgers, supra, 410 F.2d 995 observed in a similar context, “. . . [t]hat penal as well as judicial authority respond to [their] constitutional duties . . . is vastly important to society as well as the prisoner. Treatment that degrades the inmate, invades his privacy, and frustrates the ability to choose pursuits through which he can manifest himself and gain self-respect erodes the very foundations upon which he can prepare for a socially useful life. Religion in prison subserves the rehabilitative function by providing an area within which the inmate may reclaim his dignity and reassert his individuality.” (Id., at p. 1002.) The same is no less true for wards in YA custody, where the practice of religion can make an important contribution to the ultimate goals of rehabilitation and treatment.
The use of the chapel microphone and monitoring system at the YA‘s Karl Holton School violates
Accordingly, the YA is ordered to permit wards to attend chapel at the Karl Holton School free from the presence of electronic listening devices. However, since petitioner Arias shows no present right to release from
Broussard, J., Reynoso, J., and Lytle (Alice A.), J.,* concurred.
GRODIN, J., Concurring and Dissenting.—As the majority observes, the Legislature has enacted a variety of statutes to protect the religious freedom of both juvenile wards and adult prisoners in this state, and the proposed installation of an electronic listening device in a Youth Authority chapel raises troublesome questions under a number of these provisions. As I shall explain, however, I find myself in disagreement with the majority‘s analysis on a number of points.
I
To begin with, I agree with the majority that
To my mind, the relevant question under
The majority concludes, however, that even if the priest‘s office is available for confidential, unmonitored conversations, the surveillance system nonetheless violates
The majority cites no authority to support this construction of
Accordingly, on the present record, I would not find that the proposed monitoring system violates
II
Even if the challenged security system does not impermissibly infringe on a ward‘s opportunity to engage in confidential discussions with his
To begin with, there seems little question but that the routine surveillance or bugging of religious services does implicate First Amendment concerns. Outside the prison context, I trust that no one would doubt that a governmental policy of routinely bugging churches or synagogues, or of regularly monitoring the content of sermons or religious group counseling, would be unconstitutional, at least in the absence of the most compelling governmental justification. In White v. Davis (1975) 13 Cal.3d 757 [120 Cal.Rptr. 94, 533 P.2d 222], we held that allegations of routine police surveillance of university classrooms stated a prima facie case of a violation of First Amendment freedoms in light of the potential chilling effect such surveillance would have on freedom of speech. (See also Local 309 v. Gates (N.D.Ind. 1948) 75 F.Supp. 620 [surveillance of union meeting]; Bee See Books Inc. v. Leary (S.D.N.Y. 1968) 291 F.Supp. 622 [surveillance of book store].) It is difficult to see why a similar surveillance operation conducted in a municipality‘s churches would not have a comparable chilling effect on freedom of religion. Thus, I agree with the majority that because the proposed surveillance system will have at least some adverse effect on the right of religious freedom, the state bears the burden of demonstrating adequate justification for the adoption of such a measure.
As the majority also recognizes, however, the state obviously has a much greater justification in imposing security measures in a chapel located in a prison or in a Youth Authority facility than it does in a neighborhood church. There are inherent security risks in a correctional institution whenever a group of wards or prisoners assemble, and correctional authorities bear the responsibility of protecting priests, chaplains, or rabbis, as well as other staff members and vulnerable wards, from potential danger. Unfortunately, prison chapels, no less than exercise yards or other common areas, may become the site of violent incidents.
The question thus narrows to whether the proposed security measure impinges on religious freedom “only to the extent necessary in order to provide for the reasonable security of the institution.” The correctional
Problems arise, however, from the fact that the microphone, once in place, is capable of intruding on religious services and counseling to a degree beyond that which the authorities claim is needed for security purposes. Under the proposed system, routine monitoring of ordinary conversations is possible, and the apprehension that such monitoring may be occurring may cast a pall over religious activities in the chapel that is not justified by security concerns. The difficult question posed here is what remedy, if any, is appropriate when the government seeks to use a surveillance device which, on the one hand, can be operated in a manner that will not improperly impinge on individual rights, but, on the other hand, may also be used in an improperly intrusive manner.
In other contexts, courts have concluded that before law enforcement authorities may institute a new enforcement technique that has the potential for unduly impinging on protected rights, the authorities must promulgate regulations directed at confining the use of the technique within proper limits. For example, numerous decisions have required local police departments to establish guidelines for field officers before allowing the departments to set up sobriety checkpoints aimed at apprehending and deterring drunk drivers. (See, e.g., Stark v. Perpich (D.Minn. 1984) 590 F.Supp. 1057, 1059-1060; State ex rel. Ekstrom v. Justice Court (1983) 136 Ariz. 1 [663 P.2d 992, 1000] (Feldman, J., conc.); State v. Olgaard (S.D. 1976) 248 N.W.2d 392, 394-395.) And, in a variety of other situations, courts have similarly compelled a supervisory law enforcement entity to promulgate objective standards in order to constrain the free-ranging discretion of law enforcement officers. (See, e.g., United States v. Bryant (1971) 142 App.D.C. 132 [439 F.2d 642, 652 & fn. 22] [procedures for preservation of evidence gathered in criminal investigation]; Quad-City Community News Service, Inc. v. Jebens (S.D. Iowa 1971) 334 F.Supp. 8, 17-18 [regulations governing issuance of police press passes]; Morales v. Schmidt (7th Cir. 1974) 494 F.2d 85, 87-88 (Stevens, J., conc.), 88-89 (Swygert, J., conc.)
These decisions are in line with the views long expressed by a number of distinguished academic commentators, who have repeatedly emphasized the importance of explicit regulations in controlling the potentially broad discretion exercised by police and other law enforcement personnel. (See, e.g., Amsterdam, Perspectives on the Fourth Amendment (1974) 58 Minn.L.Rev. 349, 416-429; McGowan, Rule-Making and the Police (1972) 70 Mich.L.Rev. 659; Davis, Administrative Law of the Seventies (1976 supp.) § 4.00-6, pp. 125-126; 3 LaFave, Search and Seizure (1986 supp.) § 10.8, p. 210; ABA Standards Relating to Electronic Surveillance (Approved Draft 1971) § 5.18, p. 26.) Where, as here, potentially overly intrusive surveillance devices may chill protected religious activity, the promulgation of clearly drawn guidelines to limit the misuse of such surveillance tools seems eminently reasonable and appropriate.2
As the majority notes, however, there is nothing in the present record to suggest that the correctional authorities have adopted any guidelines establishing minimum threshold levels at which the microphone should generally be set or imposing sanctions on personnel who misuse the security system to eavesdrop on ordinary counseling sessions or religious services in the chapel. From all that appears, such regulations would in no way impinge on the facility‘s legitimate security interests but would help assure that the system does not unduly intrude on religious freedom.
Under these circumstances, I believe the trial court should properly have enjoined the installation of the listening device, pending the promulgation of adequate regulations limiting the use of the system in a manner that serves the security interest of the facility but that does not unnecessarily intrude on religious services or counseling sessions. Accordingly, I concur in the reversal of the judgment.
LUCAS, J.—I respectfully dissent. In the face of evidence disclosing “very serious incidents” of violence occurring in or near the chapel, including “gang confrontations, escapes, sexual attacks on younger, weaker wards, and various contraband problems,” and a conceded “objectively reasonable” concern for security in Youth Authority (YA) chapels (ante, pp. 696-697), the majority nonetheless effectively requires the YA to dismantle and remove its chapel security monitoring system. The majority, acknowledging its own
In a nutshell, the majority holds that the YA has failed to carry the burden of proving that its sound monitoring system is both “necessary” to preserve reasonable security (see
First,
In my view, whatever the phrase “reasonable opportunities” means, it does not mean an absolute guarantee of unmonitored activity unless the YA proves a particular security measure is both “necessary” and affords the
Factually, this is a poor case to choose as a vehicle for outlawing sound monitoring systems in YA chapels. Here, extensive evidentiary hearings were held, culminating with the trial court‘s ruling upholding the YA‘s use of its security system. The People submitted evidence of prior acts of violence by YA wards upon teachers, including the 1975 classroom murder of Marie Romero at El Paso de Robles School, and the 1976 brutal assaults upon Tabiri Tabasuri and Gary Cauble, culminating in a riot and $85,000 in property damage. As a result of these incidents, YA employees demanded increased safety and security measures, including more reliable alarm and monitoring systems, and threatened to withhold their services until these measures were carried out.
Not only was there ample evidence introduced of the necessity for sound monitoring, based on prior incidents of violence occurring in or near the chapel, and the inadequacy of a beeper system, but the record also strongly indicates that any interference with, or “chilling effect” upon, religious practices would be minimal. The record shows that no “spying” on religious services or practices, public or private, was involved; the content of private conversations or consultations would not be invaded. The sound system was designed merely to activate when unusually loud sounds occurred, signalling a possible security problem and allowing a rapid response thereto by YA authorities. As R. N. Ristad, president of the Associated Chaplains in State Service, attested: “[T]he electronic sound security system in the chapels at Karl Holton [school] strikes the proper balance between the security needs of the institution and the wards’ rights to religious freedom and privacy.”
As Presiding Justice Puglia observed in his opinion for the Court of Appeal in this case, “There was evidence in the superior court hearing that the electronic sound system was incapable of monitoring the content of normal conversation conducted in the chaplain‘s office with the door closed. The superior court impliedly credited such evidence, a factual determination to which we accord great weight in this proceeding [citation]. In any event, respondent [YA] is not constitutionally bound to exempt any particular area of the institution, such as the chaplain‘s office, from security surveillance. Rather respondent‘s obligation is to afford petitioners reasonable opportunities to exercise their religious freedom (Cruz v. Beto, supra, 405 U.S. at p. 322, fn. 2 [31 L.Ed.2d at p. 268, fn. 2];
“Respondent disavows any intention or desire to deny wards reasonable opportunities to speak in confidence with a religious advisor, and indeed no intrusions upon the privacy of such activities have been alleged or proved. We are satisfied that the electronic monitoring system as proposed will accommodate both institutional security needs and reasonable opportunities for wards to engage in private communications with their religious advisors.”
As indicated above, the majority asserts that “it is not this court‘s job to design security systems . . . .” (Ante, p. 700.) Neither, I submit, is it our job to second-guess the YA‘s decision to install a particular security system, in the absence of any showing of a substantial interference with the practice of religion. Certainly, as discussed below, the burden of proving that there are less intrusive alternatives capable of effectively preserving chapel security should be placed on the opponent of the present system, not on the YA. In the absence of some showing that the YA‘s facially reasonable security device can be effectively replaced with some other system, we should defer to the YA‘s choice for, indeed, it is not our job to make such decisions.
The majority, assigning to the YA the burden of proof, cites no prison security cases so holding, but merely asserts that “This is consistent with established principles of constitutional law, since fundamental rights of individuals cannot be abridged unless the state shows the abridgement is ‘necessary’ to further a compelling governmental interest.” (Ante, p. 697, fn. 34.) First, no “abridgement” is involved here; as indicated above, the sound system will not preclude “reasonable opportunities” (
In Bell v. Wolfish (1979) 441 U.S. 520 [60 L.Ed.2d 447, 99 S.Ct. 1861], the high court upheld a prison ban on receipt by inmates of hardbound books unless mailed directly from the publisher or bookstore. Rejecting a claim that the restriction unduly burdened First Amendment rights of the inmates, the court first observed that the “limited restriction is a rational response by prison officials to an obvious security problem.” (Id., at p. 550 [60 L.Ed.2d at p. 476].) With respect to the burden of proof question, the court noted that “There is simply no evidence in the record to indicate that [prison] officials have exaggerated their response to this security problem and to the administrative difficulties posed by the necessity of carefully inspecting each book mailed from unidentified sources. Therefore, the considered judgment of these experts must control in the absence of prohibitions far more sweeping than those involved here. [Citations.] [¶] Our conclusion that this limited restriction on receipt of hardback books does not infringe the First Amendment rights of inmates is influenced by several other factors. The rule operates in a neutral fashion, without regard to the content of the expression. . . . And there are alternative means of obtaining reading material that have not been shown to be burdensome or insufficient.” (Id., at p. 551 [60 L.Ed.2d at p. 476], italics added; see also Jones v. North Carolina Prisoners’ Union (1977) 433 U.S. 119, 128 [53 L.Ed.2d 629, 640, 97 S.Ct. 2532]; Pell v. Procunier (1974) 417 U.S. 817, 827-828 [41 L.Ed.2d 495, 504-505, 94 S.Ct. 2800].)
Thus, in Bell, a prison‘s limited infringement upon a First Amendment right was deemed a rational response to an obvious security problem, in the absence of proof by the inmates that the response was “exaggerated” (i.e., was not the least intrusive means reasonably available). In my view, Bell and its predecessors are controlling here. The majority, describing the foregoing United States Supreme Court precedent as “a few federal cases,” rejects that precedent because it would “merely” require prison officials to show that chosen security measures are rationally related to security concerns, rather than proving that such measures provide the “least drastic means of addressing those concerns.” (Ante, p. 691.) But as I have explained, nowhere in the applicable constitutional or statutory provisions is such an unrealistic burden imposed on prison officials.
The majority concludes that “to remain true to the legislative intent of [Penal Code] section 2600, the balancing analysis must begin with a discussion of the rights of nonconfined citizens. [Citations.]” (Ante, p. 691, fn. omitted.) But YA wards, like prisoners, are not “nonconfined citizens,” and cases discussing the scope of First Amendment or other fundamental rights in the context of a free and open society are simply inapposite.
As the United States Supreme Court stated in Jones v. North Carolina Prisoners’ Union, supra, 433 U.S. at pages 132-133, footnote 9 [53 L.Ed.2d at p. 643] “‘informed discretion of prison officials that there is a potential danger may be sufficient for limiting rights even though this showing might be “unimpressive if . . . submitted as justification for governmental restriction of personal communication among members of the general public.“‘” As stated by Justice Richardson in his opinion in In re Cummings (1982)
For all the foregoing reasons, I dissent from the majority opinion and would not order the YA to remove its electronic sound system.
Mosk, J., concurred.
Notes
However, it is apparent from the plain language of
Moreover, the recognized purpose of
This court has recognized
The effect of awareness of monitoring under provisions of the Privacy Act which prohibit monitoring of “confidential” communications is not presented in this case;
Although Justice Grodin faults the court for citing no authority for its interpretation of
Finally, this opinion does not preclude the possibility that exceptional circumstances may arise where
Furthermore, the dissent‘s conclusion is not supported by the legislative history of the statutes. At the time section 1705 was adopted, it provided a higher standard of protection for religious practices than that provided for in section 2600. However, the 1975 amendments to section 2600 expanded the right of prisoners. (Cf. Stats. 1968, ch. 1402, § 1, p. 2763.) As the law currently stands, section 2600 imposes a standard at least as high as section 1705 (if not higher) for protecting the rights of confined persons. In the absence of clearer showing, it is illogical to conclude that the Legislature, having expressed its desire to afford religious practices a greater protection than other civil rights in 1972, suddenly reversed that course in 1975.
Similarly,
Petitioners argue that the YA must prove that the sound security system is “necessary” for the security of the institution and show that it is the least drastic means of achieving that goal. Respondent takes the opposite view and claims that petitioners bear the burden of proving that the proposed security system is not necessary and that the restrictions on religion and privacy are “unreasonable.” The Court of Appeal accepted respondent‘s argument and took it a step further, holding that petitioners would fail to carry their burden unless they could show that the institution‘s expressed security concerns were not “sincerely held” or were “exaggerated.”
For example, In re Price (1979) 25 Cal.3d 448, 452-453 [158 Cal.Rptr. 873, 600 P.2d 1330], perhaps because of its brevity, has been misinterpreted as holding that section 2600 imposes a “reasonableness” standard. (See, e.g., In re Cummings (1982) 30 Cal.3d 870, 873 [180 Cal.Rptr. 826, 640 P.2d 1101, 29 A.L.R.4th 1207] (plur. opn.).) However, neither Price nor the wording of section 2600 supports such a standard.
The confusion over Price stems from the statement that “[i]n th[e] context [of section 2600], we must determine whether the regulation is reasonable ....” (Price, supra, 25 Cal.3d at p. 453.) However, the statement in full relates to a discussion of “whether the prison administration is unreasonable in its concern that prisoners’ union meetings and activities are a potential threat to the security of penal institutions.” (Ibid., italics added.) Placed in perspective, the Price court‘s “reasonableness” standard is simply the second step of the analysis to be applied here—i.e., whether the security concerns are “reasonable.” Finding the administration‘s security concerns reasonable, the Price court found the necessity for the measures to be self-evident. (See In re French (1980) 106 Cal.App.3d 74, 82 [164 Cal.Rptr. 800] [inferring a finding in Price that the “necessity” of the restriction of rights was self-evident].)
Price does not stand for the proposition that reasonable security objectives, without more, are sufficient to justify a limitation on prisoners’ rights. The statute requires a further finding that the means employed to achieve those objectives are the least intrusive on prisoners’ rights.
Aside from Price, several opinions by this court have carefully distinguished the various elements of section 2600. For example, in In re Reynolds (1979) 25 Cal.3d 131 [157 Cal.Rptr. 892, 599 P.2d 86], the issue was whether the Director of Corrections could invoke section 2600 to enforce a ban on the wearing of prisoners’ union lapel buttons. The threshold inquiry was whether the wearing of buttons generally was a protected right under the First Amendment. In answering that question in the affirmative, this court relied upon cases involving the wearing of buttons by nonincarcerated students in a public school setting. Only after resolving that issue did the court broach the question of whether the security concerns of prison officials were reasonable. Finding they were not, the court ended its inquiry. (Id., at p. 135; see also In re Brandt (1979) 25 Cal.3d 136 [157 Cal.Rptr. 894, 599 P.2d 89] [companion case to Reynolds].)
Although the lead opinion in In re Cummings, supra, 30 Cal.3d 870 did not adhere to this approach, four justices did—two concurring separately in the plurality‘s result and two dissenting. Thus, Cummings is consistent with the analysis section 2600 requires.
Finally, respondents rely on In re Gallego (1982) 133 Cal.App.3d 75, 84 [183 Cal.Rptr. 715]. That case is inapposite, since it did not involve section 2600.
The burden of proving the absence of lesser drastic means is on respondent. This is consistent with established principles of constitutional law, since fundamental rights of individuals cannot be abridged unless the state shows the abridgement is “necessary” to further a compelling governmental interest.
This analysis has been used in cases dealing with prisoners as well as nonprisoners. For example, in Payne v. Superior Court (1976) 17 Cal.3d 908 [132 Cal.Rptr. 405, 553 P.2d 565], the court noted that where a fundamental right of a prisoner is at issue, “the government must show that its interest cannot be satisfied by alternative methods less restrictive of the individual right abridged.” (Id., at p. 914.) Similarly, the court in In re Harrell, supra, 2 Cal.3d at page 686 held that “the burden of justification” is upon prison officials once a prisoner‘s fundamental rights are significantly infringed.
Under section 2600, respondent must show that it has chosen the least drastic means to further an objectively reasonable security need.
Admittedly, there may be security measures which are absolutely effective but deprive prisoners of virtually all rights. Thus, a de minimis increase in institutional security cannot be used to justify a substantial infringement of civil rights. Stone appears to strike the proper balance.
Another security problem is that the beepers transmit a signal and offer no communication of the nature of the problem at hand. This information is important, officials say, because security personnel need to know the nature of a problem in order to know how to render assistance.
Finally, the YA points out that the personal beeper system would not alert staff to altercations between wards when no staff members are present.