United States District Court, S.D. Indiana, Indianapolis Division
FINDINGS OF FACTS AND CONCLUSIONS OF LAW
JANE MAGNUS-STINSON, District Judge.
Plaintiff Jeffrey Allen Rowe, a white supremacist and self-described pastoral leader of the Church of Jesus Christ Christian (CJCC) and the Church of the National Knights, filed this civil action alleging that five policies of the Indiana Department of Correction (DOC) have unlawfully impeded his ability to practice his religion. Rowe's claims present the obvious inherent difficulty (for both prisoners and prison officials) that results when inmates seek to exercise a religion which holds the same beliefs, objectives, and goals as the Aryan Nations, a secular organization which has utilized violence in its quest for white supremacy.
The claims remaining for resolution in this action are brought pursuant to the Religious Land Use and Institutionalized Persons Act (or the Act), 42 U.S.C. §§ 2000cc to 2000cc-5. Section 2000cc-1(a) of the Act provides this general rule: "No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 1997 of this title... unless the government demonstrates that imposition of the burden on that person-(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." See generally Cutter v. Wilkinson, 544 U.S. 709 (2005); Mutawakkil v. Huibregtse, 735 F.3d 524, 526-527 (7th Cir. 2013).
Rowe alleges that five DOC policies have interfered with his ability to practice his religion as an adherent and pastor of the CJCC. He seeks injunctive relief in the form of a religious exemption prohibiting the DOC from applying aspects of these policies to him and members of his faith group. The five policies at issue were stipulated to by the parties and are identified in the Entry of July 29, 2014. See Dkt. 165. Rowe's claims are:
Claim 1: Rowe's challenge to the Security Threat Groups (STG) Policy XX-XX-XXX [dkt. 165-1]. Rowe challenges the STG policy on two grounds. First he claims that he was improperly labeled a STG member because of his interpretation of the Bible. Second, Rowe alleges that the STG policy should specifically exclude religious groups from being labeled a STG.
Claim 2: Rowe's challenge to the Offender Visitation Policy XX-XX-XXX [dkt. 165-2]. Rowe challenges the offender visitation policy on the basis that it restricts ex-offenders ability to visit offenders in DOC facilities. Rowe argues that this restriction limits who he can meet with "in the name of Jesus."
Claim 3: Rowe's challenge to the DOC's Property Limits [dkt. 165-3]. Rowe challenges the DOC's property limits on the basis that it unlawfully limits his ability to study his religion and share publications with other offenders.
Claim 4: Rowe's challenge to the Offender Correspondence Policy XX-XX-XXX [dkt. 165-4]. Rowe challenges the offender correspondence policy on two grounds. First, he asserts that pursuant to the policy, publications are being unlawfully confiscated and withheld from him. He suggests that instead of withholding the entire publication, the offending material should be removed by DOC officials and the remaining materials provided to him. Second, Rowe claims that the policy prohibits him from corresponding with other inmates about his faith when he or the inmate he seeks to communicate with is on restricted status.
Claim 5: Rowe's challenge to the Identity Christianity, Handbook of Religious Beliefs and Practices [dkt. 165-5]. Rowe challenges the Handbooks' statement that the swastika is not an authorized symbol. Rowe asserts that the Handbook's swastika ban unlawfully prohibits him from wearing a necklace with a swastika pendent.
To prevail on his remaining claims for injunctive relief, Rowe must show that the DOC's policies create a substantial burden on his religious exercise. See Patel v. Bureau of Prisons, 515 F.3d 807, 814 (8th Cir. 2008) ("[T]he same definition of substantial burden' applies under the Free Exercise Clause, RFRA, and RLUIPA."). A law, regulation, or other governmental command substantially burdens religious exercise if it "bears direct, primary, and fundamental responsibility for rendering [a] religious exercise... effectively impracticable." Korte v. Sebelius, 735 F.3d 654, 683 (7th Cir. 2013) (citing Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003)). "[P]reference or convenience is not the standard." Mutawakkil, 735 F.3d at 527.
Even if a substantial burden is shown, Rowe's claims cannot prevail if the burden created by the policies is in furtherance of a compelling governmental interest and it is the least restrictive means of furthering that interest. 42 U.S.C. § 2000cc-1(a)(1)-(2); Koger v. Bryan, 523 F.3d 789, 796 (7th Cir. 2008). "[P]rison security is a compelling state interest, and  deference is due to institutional officials' expertise in this area." Cutter v. Wilkinson, 544 U.S. 709, 725 (2005). The Supreme Court has stated that the Act should be applied in an appropriately balanced way, with particular sensitivity to security concerns.
While the Act adopts a compelling governmental interest standard, context matters in the application of that standard. Lawmakers supporting [the Religious Land Use and Institutionalized Persons Act] were mindful of the urgency of discipline, order, safety, and security in penal institutions. They anticipated that courts would apply the Act's standard with due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources.
Id. at 722-723 (internal quotations and citations omitted).
The Court conducted a two-day bench trial in this action. Rowe appeared in person, pro se, and with stand-by counsel. Defendant appeared by counsel. After consideration of the evidence presented during the bench trial, the Court now issues its findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a)(1). The Court recognizes that there was conflicting testimony on several issues presented at trial. The findings set forth below reflect the testimony that the Court credited. For ease of review, the Court's findings of fact and conclusions of law are set forth separately as to each claim. But first, a few facts are set forth which apply to all claims.
II. Findings of Fact As to All Claims
A. The Church of Jesus Christ Christian
Rowe's stated religion is Identity Christianity. He is an associate pastor of the Church of Jesus Christ Christian and an ordained reverend of the Church of the National Knights, both of which are Identity Christian churches. The Church of the National Knights is a business of the Ku Klux Klan and recognized by the State of Indiana as "Church of the National Knights of the Ku Klux Klan, Incorporated." According to Rowe, every Identity Christian believes in and advocates racial separatism and some adherents (including Rowe) interpret the Bible as saying that the White Aryan race is mentally and spiritually superior to non-white races. Identity Christian adherents believe that Jews are their enemy. Rowe testified that membership in his church is limited to whites only. Potential members are required to study for six months to a year and must submit to a test. Memberships are voted on at the local level and then submitted to Rowe who, as the state leader, approves or denies memberships. Rowe's knowledge of the CJCC and his "charisma" are responsible for his leadership status.
The Aryan Nations is the political arm of the CJCC. Prisoners are prohibited from being Aryan Nations members until their release from prison, when they are expected to join. As Rowe testified, the CJCC and Aryan Nations are two sides of the same coin. They hold the same beliefs, goals and objectives. Those goals include creating a pure white homeland and creating understanding among all people that the white race is being bred out of existence. The CJCC and Aryan Nations support the actions of the Ku Klux Klan and vice versa. The Aryan Nations has a violent history. For example, in 1998, a former Aryan Nations guard killed one person and shot five others, proclaiming his actions a wake-up call to America to kill all Jews. In Idaho in 2000, an Aryan Nations guard chased down and killed a black mother and her son for stopping in front of the Aryan Nations compound. DOC has relied on the Federal Bureau of Investigation's determination that the Aryan Nations is a domestic terrorist threat in classifying the Aryan Nations as a prison security threat group.
Based on the testimony presented, the Court infers that the reason for the distinction between the Aryan Nations and CJCC is superficial. It is a thinly veiled attempt to pursue under the guise of religion (and the protections of the Act) that which would not be tolerated if it were pursued via a secular organization. As the CJCC prison ministry foundation packet states: "There are very good reasons for this policy [that prisoners must address themselves as church members only]; legal reasons. You are asked to trust your church leadership to protect your best interests." Pl. Exh. 51 at p 24-25. As Rowe explained, the CJCC was created because Aryan Nations sounded too much like the Aryan Brotherhood and the Aryan Brotherhood's operations in prison are prohibited because it is a recognized white supremacist prison gang that resorts to violence to achieve its goals. In addition, Rowe's witnesses corroborated the lack of distinction. Paul Mullet testified that there is no separation between the faith and politics of the Aryan Nations as reflected in the CJCC Prison Ministry Foundation Packet. Similarly, Eli James testified that Christian Identity does not distinguish religion from politics because ethical beliefs must be adhered to in daily life, such that if you believe in racial segregation, you act accordingly.
That said, the CJCC is a religion recognized by the DOC, and its legitimacy was not challenged in this case. See dkt. 165-5. The Court will treat it as such.
B. Racial Violence in Prison
Religious and race based violence occurs in DOC prisons with unfortunate frequency. White supremacist prison gangs are active and pose a threat to facility safety as demonstrated by their advocacy of violence and past incidents of violence. For example, at Pendleton Correctional Facility earlier this year, members of the Saxon Knights, a white gang, attacked another offender. In April, an Aryan Brotherhood member was murdered in a racially related incident. At Westville Correctional Facility, in 2013, a large incident erupted when a white offender assaulted black offenders in the dining hall. On the way back out of the dining hall the black offenders passed a verbal message back to the housing units that black offenders were to assault all white offenders in all the housing units and numerous violent assaults resulted.
Rowe and the offenders he called as witnesses attempted to downplay racial tensions as a cause of violence in prison. The witnesses are not credited, as their testimony is rife with bias and each is a convicted felon. Each of the witnesses also has some affiliation with white separatist or white supremacist ideological groups and a self interest in suggesting that their association does not contribute to discord in the prison setting. In fact, Rowe himself has been involved in interracial violence. For example, Rowe himself checked into protective custody because he owed a drug debt to a member of the Gangster Disciplines an African-American prison gang. On another occasion, Rowe had a problem with the Latin Kings, a Hispanic gang, to which he owed a debt.
The Court also accepts the DOC's witnesses' testimony that depictions of the KKK and the use of the N-word and other demeaning language used in a derogatory manner is particularly inflammatory in the prison setting.
With these facts in mind, the Court now turns to Rowe's specific claims for injunctive relief.
III. Claim 1: Rowe's Challenge to the Security Threat Group Policy
Rowe challenges the Security Threat Group (STG) policy on two grounds. First, he claims that he has been improperly labeled a STG member because of his interpretation of the Bible. Second, Rowe argues that the STG policy should ...