Metropolitan News-Enterprise


Thursday, November 7, 2019


Page 3


Ninth Circuit:

Qualified Immunity Properly Granted in White Supremacist’s Suit

Opinion Says It Is Not ‘Clearly Established’ That Racist, Anti-Semitic Group, ‘Creativity,’ Constitutes a Religion


By a MetNews Staff Writer


California prison officials were properly granted qualified immunity in a case in which racist materials were seized from the plaintiff’s cell—materials he declares to be religious—“holy books” of his white supremacist creed were banned, a “fruitarian” diet was denied him while dietary requirements of other faiths were accommodated, the Ninth U.S. Circuit Court of Appeals has held.

The prisoner, Michael Anthony Todd, a member of the “Ecclesia Creatoris” organization, also known as “Creativity,” has, pursuant to tenets of the group, pledged his “undying loyalty to the White race....” He brought his action in the District Court for the Eastern District of California on March 26, 2013.

It was dismissed on April 9, 2013, with prejudice, pursuant to a screening of complaints filed by inmates against government entities or officers; the Ninth Circuit on Aug. 27, 2015, reversed and remanded for a consideration of specified claims on the merits; the District Court dismissed some defendants and, by order of Sept. 13, 2018, granted summary judgment to others.

No Opinion

The 2015 Ninth Circuit opinion had specified:

“We express no opinion as to whether Creativity constitutes a religion.”

Tuesday’s memorandum opinion does not reject outright the claim that it is a religion but does declare that Creativity’s not “clearly established” as such. Affirming the judgment, it says:

“Todd argues the prison officials were not entitled to qualified immunity because they violated his clearly established right to practice his religion of Creativity by discarding his religious materials and refusing to grant him a religious diet. However, it is not clearly established that Creativity invoked constitutionally cognizable religious interests, and therefore the prison officials were not on notice that their conduct might violate a constitutional right…”

The opinion continues:

Logo of ‘Creativity’

“Neither the Supreme Court nor the Ninth Circuit has ever addressed the issue of whether Creativity invokes a constitutionally cognizable religious interest, but several district courts in this circuit have done so, instead viewing it as a secular philosophy that espouses white racial dominance.”

It cites the Ninth Circuit’s 1996 opinion in Osolinski v. Kane which provides: “In the absence of binding precedent, courts should look to available decisions of other circuits and district courts to ascertain whether the law is clearly established.”

The opinion says the right claimed by Todd “was not clearly established, and, therefore, the district court properly concluded that the prison officials were entitled to qualified immunity.”

The case is Todd v. Ruiz, 18-16843.

                                              Tenets of Creativity

Among the “16 Commandments” of Creativity, contained in the “White Man’s Bible,” are these:

“Remember that the inferior colored races are our deadly enemies, and the most dangerous of all is the Jewish race. It is our immediate objective to relentlessly expand the White Race, and keep shrinking our enemies.”

“You shall keep your race pure. Pollution of the White Race is a heinous crime against Nature and against your own race.”

“Show preferential treatment in business dealings with members of your own race. Phase out all dealings with Jews as soon as possible. Do not employ niggers or other coloreds. Have social contacts only with members of your own racial family.”

District Court Decisions

In a Dec. 2, 2009 decision in an action brought by a California prison inmate, District Court Judge Maxine Chesney of the Northern District of California (now a senior judge) held that Creativity is “a secular belief system.” Rejecting a First Amendment claim (based on the free exercise of religion clause), she wrote that “plaintiff’s evidence fails to create a triable issue with respect to whether such characteristics qualify Creativity is a religion.”

She said the action likewise failed under the Religious Land Use and Institutionalized Persons Act.

On Sept. 21, 2007, Chesney granted summary judgment to the defendants in a case in which a prisoner claimed his First Amendment rights were violated by an adherent to Creativity because his “frugitarian” diet was not accommodated. However, she did not find in that case that Creativity is not a religion.

“Viewed in the light most favorable to plaintiff, the evidence relied upon by defendants does not establish, as matter of law, that the Church of the Creator is not entitled to the religious protections of the First Amendment,” she wrote. “Accordingly, the Court assumes, without deciding, that the Church of the Creator is a religion within the meaning of the First Amendment.”

The judge went on to observe, however:

“The record is adequately developed regarding whether a raw-food diet is mandated by the Church of the Creator, and the Court finds no such mandate….Creative Credo No. 6 recommends its members eat a ‘frugitarian,’ or raw-food, diet…; Creativity believes in, but does not require, that its members follow a raw-food diet.”

Confiscated Book Returned

On March 12, 1989, Judge Fern M. Smith of that same court, now retired, ordered that prison officials return to an inmate a confiscated copy of the “White Man’s Bible,” holding that it had not been shown that possession of it posed an imminent danger.

Outside of California, the District Court for the Middle District of Georgia on April 14, 2011, in screening an inmate’s complaint based on confiscation of Creativity literature, decided to allow the action to proceed despite “reservations regarding plaintiff’s various First Amendment claims, which arise out of his contentions that the Church of Creativity is a religion,” explaining:

“Several courts have held that a ‘Church of Creativity’ or a ‘Church of the Creator’ did not constitute a religion for purposes of the First Amendment, but was instead a vehicle for white segregation….[H]owever, given this Court’s mandate to construe plaintiff’s allegations liberally and in his favor, the Court finds that further development of this issue is necessary.”

Citing Chesney’s 2009 opinion, a judge of the District Court for the District of Nevada on Oct. 19, 2010, determined that “the Church of the Creator or Creativity is not a religion for purposes of the First Amendment.”


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