Ricky K. INOUYE, Plaintiff, and Zenn K. Inouye, Personal Representative of the Estate of Ricky Kenichi Inouye, aka Ricky K. Inouye, deceased, Plaintiff-Appellant, v. Michael KEMNA; Lucianne Khalaf; Daniel H. Shimizu; Peter B. Carlisle; City and County Of Honolulu; Mark Nanamori, Defendants-Appellees.
No. 06-15474
United States Court of Appeals, Ninth Circuit
September 7, 2007
Amended October 3, 2007
504 F.3d 705
The Supreme Court has addressed similar issues in selective prosecution cases. In invoking judicial power over the United States Attorney to preempt an executive function, the government is presumed to have properly exercised its constitutional responsibilities to enforce the nation‘s laws. United States v. Armstrong, 517 U.S. 456, 463 (1996), quoting Heckler v. Chaney, 470 U.S. 821, 832 (1985). The presumption of regularity in a prosecutorial decision is strong and must be overcome with clear evidence. Id. Here, the prosecutor‘s explanation was not accorded a presumption of regularity. Rather, the majority accepts the district court‘s opinion that Jenkins’ in-court confession was not vital to the government‘s case, so alien smuggling charges could have been filed either when she was apprehended with illegal aliens, or two months later when she was apprehended and claimed she thought the contraband was human, not drugs.
The doctrine of vindictive prosecution does not diminish the principle of prosecutorial discretion. United States v. Griffin, 617 F.2d 1342, 1348 (9th Cir.1980) (“[n]othing in Blackledge presumed to give a defendant a free ride for separate crimes he may have committed, or to prevent a prosecutor from bringing new charges as a result of changed or altered circumstances which properly bear on prosecutorial discretion“). A prosecutor necessarily considers the quality and strength of evidence in deciding when or whether to prosecute.
Here, the prosecutor admittedly had sufficient evidence to bring alien smuggling charges against Jenkins before she testified, but he chose not to. His conclusion that Jenkins’ in-court confession greatly strengthened the alien smuggling case and his decision to file a criminal complaint on these charges fell within the bounds of prosecutorial discretion.
I would reverse the dismissal of the indictment.
Carrie K.S. Okinaga and Marie Gavigan, Corporation Counsel for the City and County of Honolulu, and Moona A. Yost, Deputy Corporations Counsel, Honolulu, HI, for Defendants-Appellees Michael Kemna and the City and County of Honolulu. Ms. Gavigan presented oral argument.
Mark. J. Bennett, Attorney General of the State of Hawaii, and Kendall J. Moser, Deputy Attorney General, Honolulu, HI, for Defendant-Appellee Mark Nanamori. Mr. Moser presented oral argument.
Before: DAVID R. THOMPSON, MARSHA S. BERZON, and RICHARD C. TALLMAN, Circuit Judges.
Opinion by Judge BERZON; Concurrence by Judge TALLMAN.
ORDER AMENDING OPINION AND AMENDED OPINION
ORDER
The opinion filed September 7, 2007 is amended as follows: The first two sentences of the second paragraph of footnote 3 are struck. The amended footnote shall read:
The prison case, Inouye v. Cayetano, Civ. No. 00-00412, began with a complaint filed on June 13, 2000. Nanamori was added to the prison case in the third amended complaint, filed June 8, 2001, which included the First Amendment issues arising from the parole term incidents now before us. Judge Mollway initially held that Nanamori was not entitled to qualified immunity. Inouye moved to dismiss him from the case soon thereafter, and Nanamori was dismissed. The case was ultimately settled and dismissed on August 12, 2002. Because there was no final judgment on the merits in the case, it has no issue preclusion effects here. See Reyn‘s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 (9th Cir.2006) (requiring that proceeding “ended with a final judgment on the merits” for collateral estoppel to apply).
Although a consent judgment may sometimes count as the final judgment required for claim preclusion, 18 A
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This amendment does not alter the deadline for petitions for rehearing or rehearing en banc in this case. No such petitions have yet been filed and none filed after the original deadline for such petitions will be entertained.
OPINION
BERZON, Circuit Judge:
Ricky K. Inouye alleges violations of his First Amendment rights by his parole officer. He filed this
Inouye charges that Mark Nanamori, his parole officer, violated the Establishment Clause by requiring Inouye to attend Alcoholics Anonymous/Narcotics Anonymous (“AA/NA“) meetings as a condition of his parole. The District Court of Hawaii granted summary judgment against Inouye. We now reverse the district court on this claim and remand for further proceedings.2
I. BACKGROUND
Inouye, who had a methamphetamine addiction and had been sentenced for drug crimes, was released on parole on November 20, 2000. The events of that parole term form the background for this case.
A.
Inouye had long objected to compelled participation in religion-based drug treatment programs. In June of 2000, while imprisoned, he filed suit against state officials over his placement in such treatment programs in prison.3
Mr. Inouye is a Buddhist. As such, he objects on grounds of the Establishment and Free Exercise Clauses of the First Amendment of the United States Constitution to any state imposed religious practice as a condition of his parole. Enclosed is a copy of the decision in Kerr v. Farrey, 95 F.3d 472 (7th Cir. 1996), which holds that the Alcoholics Anonymous 12 step program cannot be imposed by the state as a requirement for eligibility for parole. Mr. Inouye does not object to participating in a substance abuse treatment program. However, he does object to any program that has explicit religious content. This includes, but is not limited to, the recitation of prayers at meetings, whether or not Mr. Inouye is required to participate in the prayer. Please assure that there is no religious content in any substance abuse program that is imposed as a requirement of Mr. Inouye‘s parole.
Nanamori declared that he was familiar with the contents of Inouye‘s Hawaii Paroling Authority file. When Inouye was released just over a week after the letter was mailed, Nanamori was appointed as his parole officer. Inouye‘s conditions of parole gave Nanamori the authority to order him into a drug treatment program. The conditions emphasized that “[f]ailure to participate in your treatment and abide by the rules of the program may be considered evidence that you are refusing to participate in the program.” Nanamori did not immediately order Inouye into treatment.
Inouye was arrested for trespassing on March 4, 2001 and tested positive for drug use the next day. At that point, Nanamori ordered him to attend the Salvation Army‘s Addiction Treatment Services program.4 The program requires participation in AA/NA meetings, which are rooted, the parties agree, in a regard for a “higher power.”
Inouye remained in the program for a few months, but he refused to participate and was terminated from it on June 5, 2001. In part due to Inouye‘s refusal to participate in the treatment program, Nanamori issued a warrant for Inouye‘s arrest for parole violations on June 15, 2001, and recommended that his parole be revoked. Inouye‘s parole was revoked after a hearing on November 7, 2001.
Inouye alleges that his placement in the AA/NA program, and his termination from parole for refusing to participate in the program, violated his First Amendment rights.
B.
Two years after these events, on June 6, 2003, Inouye filed suit in state court under
Nanamori moved for summary judgment. On March 18, 2005, the district court granted Nanamori‘s motion, holding that he had violated Inouye‘s First Amendment rights, but had qualified immunity from suit.
During the course of these proceedings, Inouye passed away. His son, Zenn, was named special administrator of Inouye‘s estate for a six-month term on September 20, 2004 and was substituted as a party on September 29, 2004. Zenn‘s term expired on March 20, 2005. He was reappointed as personal representative of his father‘s estate for a three-year term on September 21, 2006.5 Zenn filed a timely notice of appeal on March 6, 2006.
II. ANALYSIS
This case comes to us on a grant of summary judgment, so our review is de novo, Blankenhorn v. City of Orange, 485 F.3d 463, 470 (9th Cir.2007), and we must make all inferences of fact in favor of the nonmoving party, Inouye. Id. Doing so, we assume that Inouye‘s participation the AA/NA program was a compulsory condition of parole. Inouye had objected in advance of parole to such a program but was assigned to participate in one anyway, and was also “ordered” to continue in the program after threatening to sue program officials. There is no evidence that Inouye was ever told that he had a choice of programs. Under these circumstances, a jury could infer that participation was coerced rather than voluntary. We therefore proceed on that premise.
Nanamori does not argue that ordering Inouye to participate in a religion-based drug treatment program was unconstitutional. Instead, his defense, accepted by the district court, is that the law on the matter was not clearly established at the time he supervised Inouye‘s parole and that he, therefore, is immune from suit. We hold, on the contrary, that the law was and is very clear, precluding qualified immunity,
Qualified immunity from civil suit is available to government officials performing discretionary functions “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). We examine a qualified immunity defense with a two-step test: First, we determine whether “[t]aken in the light most favorable to the party asserting the injury . . . the facts alleged show the officer‘s conduct violated a constitutional right.” Saucier v. Katz, 533 U.S. 194, 201 (2001). If a constitutional violation is present, we go on to ask “whether the right was clearly established,” id., applying an objective but fact-specific inquiry. Id. at 202. To reject a defense of qualified immunity, we must find that “the contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates the right.” Saucier, 533 U.S. at 202; Anderson v. Creighton, 483 U.S. 635, 640 (1987). In making this determination, we consider the state of the law at the time of the alleged violation. See Blankenhorn, 485 F.3d at 476; Sorrels v. McKee, 290 F.3d 965, 970 (9th Cir.2002). We also examine the “information possessed” by the officer to determine whether a reasonable official in a particular factual situation should have been on notice that his or her conduct was illegal. Anderson, 483 U.S. at 641; Sorrels, 290 F.3d at 970. The “subjective beliefs” of the actual officer are, of course, “irrelevant.” Anderson, 483 U.S. at 641.6
A.
In this case, it is essentially uncontested that requiring a parolee to attend religion-based treatment programs violates the First Amendment. We therefore spend relatively little time on the first step of the qualified immunity analysis.
Nanamori and Inouye agree that reverence for “a higher power” is a substantial component of the AA/NA program. For the government to coerce someone to participate in religious activities strikes at the core of the Establishment Clause of the First Amendment, whatever else the Clause may bar.7 As Justice Black wrote in the first modern
Here, Nanamori is alleged to have required Inouye to attend a program rooted in religious faith and then recommended revoking his parole because he refused to participate. The Second and Seventh Circuits have found compelling prisoners and probationers to participate in AA/NA under similar circumstances unconstitutionally coercive. See Warner v. Orange County Dept. of Probation, 115 F.3d 1068 (2nd Cir.1997), affirmed by Warner v. Orange County Dept. of Probation, 173 F.3d 120 (2nd Cir.1999), cert. denied sub nom. Orange County Dept. of Probation v. Warner, 528 U.S. 1003 (1999); Kerr v. Farrey, 95 F.3d 472 (7th Cir.1996).
We find the reasoning of the Seventh Circuit in Kerr with regard to determining whether there was governmental coercion of religious activity particularly useful. Kerr proceeded sequentially as follows: “first, has the state acted; second, does the action amount to coercion; and third, is the object of the coercion religious rather than secular?” Kerr, 95 F.3d at 479. We adopt this mode of inquiry and conclude that all three criteria are satisfied here.
First, Nanamori acted in his official state capacity as a parole officer to order Inouye into AA/NA. That the state did not run the program itself is “of no moment,” id. at 479, as the state ordered participation. Second, the action was clearly coercive: Inouye could be imprisoned if he did not attend and he was, in fact, ultimately returned to prison in part because of his refusal to participate in the program.
Addressing Kerr‘s third prong is also quite straightforward. Our record on the content of the AA/NA program here is limited to Inouye‘s allegations that AA/NA is based in “a higher power.” Nanamori does not, however, dispute that the program was substantially based in religion, and presents no evidence that the program differed from the usual AA/NA program, described by the Second Circuit in Warner as comprising “intensely religious events,” 115 F.3d at 1075, and by the Seventh Circuit in Kerr as “fundamentally based on a religious concept of a Higher Power.” 95 F.3d at 480. As such, on this summary judgment record and given the lack of dispute between the parties in question,
Hence, we agree with the district court that Nanamori‘s actions were unconstitutional. While we in no way denigrate the fine work of AA/NA, attendance in their programs may not be coerced by the state.10 The Hobson‘s choice Nanamori offered Inouye—to be imprisoned or to renounce his own religious beliefs—offends the core of Establishment Clause jurisprudence.11
B.
Having held, first, as we must under Saucier, that there was a constitutional violation on the facts alleged, we now turn to the question at the heart of the parties’ dispute: was the pertinent Establishment Clause law “clearly established” on this point such that a reasonable official would know that his or her conduct was illegal? Sorrels, 290 F.3d at 969. We find that it was. The vastly overwhelming weight of authority on the precise question in this case held at the time of Nanamori‘s actions that coercing participation in programs of this kind is unconstitutional.
In 2001—indeed, until this case—our Circuit had not ruled on this question. “Absent binding precedent, we look to all available decisional law, including the law of other circuits and district courts, to determine whether the right was clearly established. We also evaluate the likelihood that this circuit or the Supreme Court would have reached the same result.” Osolinski v. Kane, 92 F.3d 934, 936 (9th Cir.1996) (internal citations omitted).
By 2001, two circuit courts, at least three district courts, and two state supreme courts had all considered whether prisoners or parolees could be forced to attend religion-based treatment programs. Their unanimous conclusion was that such coercion was unconstitutional. See Warner v. Orange County Dept. of Probation, 115 F.3d 1068, 1074-75 (2nd Cir.1997) (holding that it was a constitutional violation to impose participation in AA/NA as a probation condition); Kerr v. Farrey, 95 F.3d 472, 479-80 (7th Cir.1996) (same for prisoners); Alexander v. Schenk, 118 F.Supp.2d 298, 301-02 (N.D.N.Y.2000) (same); Warburton v. Underwood, 2 F.Supp.2d 306, 318 (W.D.N.Y.1998) (same); Ross v. Keelings, 2 F.Supp.2d 810, 817-18 (E.D.Va.1998) (same); Arnold v. Tennessee Board of Paroles, 956 S.W.2d 478, 483-84 (Tenn.1997) (AA/NA imposition unconstitutional as a parole condition); In the Matter of David Griffin v. Coughlin, 88 N.Y.2d 674, 691-92, 649 N.Y.S.2d 903, 673 N.E.2d 98 (1996) (AA/NA imposition unconstitutional with regard to a prisoner).
We note that this march of unanimity has continued well past March, 2001, when Nanamori acted. Indeed, a district court found a constitutional violation on nearly identical facts just one month later in April, 2001, finding, too, that the law at that time was “clearly established” and no qualified immunity was available. See Bausch v. Sumiec, 139 F.Supp.2d 1029, 1037, 1039 (E.D.Wis.2001).13 More recent courts have agreed. See Armstrong v. Beauclair, 2007 WL 1381790, *12–*13 (slip op.) (D.Idaho Mar. 29, 2007) (noting supporting rulings dating to 1996 and striking down AA/NA requirement as parole condition); Turner v. Hickman, 342 F.Supp.2d 887, 895-97 (E.D.Cal.2004) (collecting cases and adopting Kerr test to bar AA/NA as requirement for release on parole); Nusbaum v. Terrangi, 210 F.Supp.2d 784, 789-91 (E.D.Va.2002) (holding that there was a violation but finding qualified immunity because defendants were making a good faith effort to come into compliance with the law in prison context). The only case of recent vintage that upheld participation in an AA/NA program, decided in June, 2001, endorsed Kerr but held against the plaintiff prison inmate because he had a choice of programs and was not coerced to attend the one he challenged. In re Garcia, 106 Wash.App. 625, 24 P.3d 1091, 1096-97 (2001). Garcia is thus entirely consistent with our holding and with those of all the cases we have cited.
First, lack of complete unanimity does not mean that a legal principle has not been clearly established. Second, the “divergent opinions” the district court relied upon totaled three, all federal district court decisions, and each at least five years old by 2001. Third, as the district court itself noted in its merits discussion, two of these three cases—all except the oldest—are “distinguishable from the instant case in critical ways.”
O‘Connor v. California, 855 F.Supp. 303 (C.D.Cal.1994), a challenge to AA/NA imposed as part of a sentence for drunk driving, acknowledged that the program was “founded on monotheistic principles” but explained that it was “[s]ignificant to this Court‘s decision that the individual has a choice over what program to attend.” Id. at 307-08 (emphasis in original). So O‘Connor does not speak to the coercion issue.
The holding of Boyd v. Coughlin, 914 F.Supp. 828 (N.D.N.Y.1996), which did uphold a coerced program, was abrogated by the Second Circuit in Warner, and so was not good law at the time the district court relied upon it as a “divergent opinion.” See Warner, 115 F.3d at 1074-75.
Of the cases that the district court felt could have caused a reasonable parole officer to be confused about the state of the law, this leaves only Stafford v. Harrison, 766 F.Supp. 1014 (D.Kan.1991).14 This case, a decade old in 2001, applied the Lemon test directly, did not consider the warnings against coercion dating back to Everson, and was decided using Turner v. Safley, 482 U.S. 78 (1987), deference because it regarded prisoners, not probationers. Stafford, 766 F.Supp. at 1016-17. This factually-distinct case, decided before Lee reemphasized the dangers of coercion in the Establishment context, simply is not enough to render the state of the law in 2001 anything less than clear.
This uncommonly well-settled case law alone is enough for us to hold that the law was clearly established, sufficient to give notice to a reasonable parole officer, in 2001. But there are additional factual circumstances in this case that persuade us still further. We consider them not for their subjective effect on Nanamori but for their objective effect on a reasonable parole officer in his fact-specific position. Anderson, 483 U.S. at 641.
First, there was an ongoing federal suit against Hawaii prison officials over mandatory religion-based treatment programs, filed by Inouye, at the time when Nanamori imposed AA/NA as a parole condition. This suit, filed a year prior, focused on the constitutionality of coerced religion-based treatment programs and might well have put a reasonable parole officer on notice,
Second, on the present record, a jury could infer Nanamori had actual notice that his actions were unconstitutional, in the form of Inouye‘s letter to the Hawaii Paroling Authority objecting to such programs and attaching Kerr. The district court suggests that Kerr did not provide adequate notice because the court there granted qualified immunity, holding that the law was not yet clearly established. But it is Kerr, of course, which contributed greatly to establishing the law, and which lays out, convincingly enough to guide any officer facing the question since, why a constitutional violation occurs when AA/NA is simply required, without alternatives. A reasonable parole officer, reading Kerr four years after it had been decided, and making the effort to learn that, since it was decided, many courts have agreed with it and none have disagreed, would be put on notice by the decision.
Given all this, Nanamori‘s mistake as to the law was not reasonable. An officer in Nanamori‘s position, having available near-unanimous judicial invalidation of religious coercion in this and similar contexts, with a lawsuit in progress against the prison system for mandating participation in a similar program, and having Kerr in hand, should not have reasonably repeated the same mistake.
III. CONCLUSION
We therefore reverse the district court‘s grant of summary judgment, as Nanamori does not have qualified immunity. The case should go to trial to determine any issues of disputed fact that remain.16
REVERSED and REMANDED.
Defendant-Appellant Nanamori shall bear the costs of this claim on appeal.
TALLMAN, Circuit Judge, concurring in the judgment:
I write separately because although I concur in the court‘s judgment, I cannot embrace the opinion‘s broad language. The only record evidence in this case that Inouye‘s participation in Narcotics Anonymous/Alcoholics Anonymous (“NA/ AA“) offends the Establishment Clause is a letter that Inouye‘s attorney wrote on his behalf to the parole board before Inouye‘s release that simply alleges that NA/AA “has explicit religious content” and encloses a copy of the Seventh Circuit‘s decision in Kerr v. Farrey, 95 F.3d 472 (7th Cir.1996). We know nothing about the content of the Hawaii Salvation Army‘s NA/AA program. Indeed, other courts have recognized that the “principal and primary effect’ of encouraging participation in AA is not to advance religious belief but to treat substance abuse.” O‘Connor v. California, 855 F.Supp. 303, 307 (C.D.Cal.1994). No one disputes that drug treatment was a necessary condition for Inouye‘s release on parole. As the opinion correctly notes, however, the parties appear to concede that compelled participation in the NA/AA program at issue here does rise to the level of a First Amendment violation.
Nonetheless, I am concerned that the court‘s opinion gives parolees incentive to file
Plainly, in this case, completion of a drug treatment program was integral to Inouye‘s chances for success on parole. Indeed, one of Inouye‘s parole violations came as a result of his drug-induced conduct at a hotel when he refused to leave after checkout time and for which there was ample probable cause to arrest him. Prisons are filled with offenders who suffer from drug abuse problems. Parole authorities must have the means to require participation in drug treatment programs if the parolee is to have any chance of success and to protect the community from further drug-motivated crimes. See Warner v. Orange County Dept. of Probation, 115 F.3d 1068, 1077 (2d Cir.1997) (commenting that the “policy of sending alcoholic defendants like Warner to A.A., . . . was . . . to help free alcoholics from addiction by sending them to a program that has been famously successful“).
I also find overstated the court‘s view of the “reasonable parole officer.” It is somewhat of a stretch, as the opinion suggests, to require such officials to closely monitor the state of the law and possess the legal acumen to determine when the fine line of “clearly established” has been crossed and to act accordingly. See Wilson v. Layne, 526 U.S. 603, 617 (1999) (noting that officials are not “expected to predict the future course of constitutional law“). This suggestion is especially problematic when the parolee‘s objection to any drug program with questionable religious undertones could have been alleviated by asking for a different program or by filing a simple motion with the sentencing court.
However, because the law was clearly established at the time, Nanamori is not entitled to qualified immunity, and it will be for a jury to decide whether Inouye suffered any compensable damages as a result of being ordered to attend an NA/AA program that he ultimately did not complete, in no small part, because he could not avoid drugs.