Metropolitan News-Enterprise


Monday, June 14, 2010


Page 1


Court of Appeal Rejects First Amendment Claim by Prison Inmate

Possession of Book Authored by Radical Killed in Prison Break Properly Used to Tie Inmate to Gang, Justices Say




Assigning an inmate to secure housing based on his possession of constitutionally protected materials linking him to a gang did not violate his First Amendment rights, the Fifth District Court of Appeal ruled Friday.

The judges affirmed Kings Superior Court Judge George L. Orndoff’s order denying Edward T. Furnace’s habeas corpus petition. Furnace claimed his assignment to the Secure Housing Unit at Corcoran State Prison was arbitrary and capricious and deprived him of free speech.

Furnace, who was committed to state prison in 1992 to serve a life sentence without possibility of parole for murder and other crimes, was “validated” as a gang member and assigned to SHU Corcoran in 2008. That action followed a property search at Salinas Valley State Prison, where Furnace was then incarcerated, that turned up a piece of paper with contact information for Hugo Pinell, a Black Guerilla Family member at another prison.

The search also turned up a book titled “Facism: Its Most Advanced Form Is Here in America” by George L. Jackson, a CD about Jackson’s life and death, and a photocopied flier promoting a 2005 event commemorating “fallen BGF members as well as other...Freedom Fighters.”

Marin Kidnapping

Jackson, founder of the BGF, a Marxist prison gang, was killed, along with three correctional officers, during a failed escape attempt in 1971. His followers were responsible for the violent escape of three prisoners from a Marin County courtroom in 1970 and the kidnapping of the judge and prosecutor.

The judge, Harold Haley, was killed, as were Jackson’s 17-year-old brother Jonathan and two of the prisoners.

In defense of Furnace’s validation as a gang member, prison officials explained that possession of materials related to Jackson is normally considered as evidence of association with the BGF. In Furnace’s case, the fact that he had those materials, together with possession of contact information for a BGF member whom he could not contact without violating prison rules, led to the conclusion that he was affiliated with the BGF, officials said.

Furnace denied any such affiliation. He wanted to contact Pinell for advice about a children’s book on how to avoid gang violence, he said, claiming his interest in Jackson was purely historical.

Justice Betty Dawson, writing for the Court of Appeal, said the trial judge correctly deferred to prison official’s expertise in the matter of identifying gang affiliates.

The justice explained that a prison’s internal decision-making will not be interfered with if there is “some evidence” to support it. While Furnace offered innocent explanations of why he possessed the materials, officials were entitled to conclude that the combination of items formed a reasonable basis for officials to believe that Furnace was a member of the BGF.

Supreme Court Test

With respect to Furnace’s First Amendment claim, the justice cited Turner v. Safley (1987) 482 U.S. 78. The case held that prisoners’ rights of expression must yield to legitimate penological interests, as determined by a four-pronged test.

To determine whether the policy is justified, the court must consider whether there is a valid, rational connection between the policy and the legitimate governmental interest put forward to justify it; whether there are alternative means of exercising the right; whether accommodating the asserted right will have an impact on guards, other inmates and allocation of prison resources; and whether the policy is an “exaggerated response” to the prison’s concerns.

Dawson said the department met the Turner test in this case because using possession of BGF-related materials to determine that an inmate is gang-affiliated is rationally connected to the state’s interest in suppressing gang membership; Furnace could still receive constitutionally protected materials, at least those that were not gang-related; the department presented unrefuted evidence that inmates’ possession of BGF materials promotes BGF membership and thus endangers security; and there was no showing that “there are obvious, easy alternatives to the regulation.”

In a footnote, Dawson said the court was only considering whether Furnace’s possession of the Jackson materials, in combination with his having the contact information for Pinell, justified his validation and was not ruling on whether the department can ban Jackson- or BGF-related material.

The case is In re Furnace, 10 S.O.S. 3169.


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