Metropolitan News-Enterprise


Monday, August 24, 2020


Page 1


Ninth Circuit:

 Prison Gender-Discrimination Suit Gets Intermediate Scrutiny

Panel Reinstates Action by Male Inmate Who Wants to Purchase Items Available Only to Females


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals on Friday reinstated an action by a male prison inmate who claims gender discrimination because he cannot obtain certain items available to female inmates, with a three-judge panel declaring, in a case of first impression, that California penitentiary policies must meet a stricter evidentiary test—“intermediate scrutiny”—than the District Court applied.

 Magistrate Judge Nandor J. Vadas of the Northern District of California granted summary judgment to prison officials, finding that the regulation in issue is “reasonably related to legitimate penological interests,” the deferential standard prescribed by the U.S. Supreme Court in its 1987 decision in Turner v. Safley. That case dealt with restrictions on prisoners corresponding with persons in other prisons and marrying.

In Friday’s opinion, Judge Richard C. Tallman pointed to the high court’s 2005 opinion in Johnson v. California. There, discrimination based on race was in issue, and intermediate scrutiny was applied.

“By extension—although the Supreme Court has not yet so held—the same is true of the right not to be discriminated against in prison based on gender,” Tallman wrote.

Previous Decisions

Gender discrimination, in other contexts, has received heightened scrutiny, Tallman noted. He observed that intermediate scrutiny has been applied to gender-based discrimination in prisons by the Eighth and D.C. Circuits, and in two non-precedential Ninth Circuit memorandum opinions, as well as unpublished dispositions by the Third and Sixth Circuits.

The jurist said that while the opinion being handed down is the Ninth Circuit’s “first published opinion on this topic,” several of the circuit’s previous decisions “have hinted at the applicability of the intermediate scrutiny standard to gender-based equal protection claims in prisons and jails.”

The U.S. Supreme Court has applied an intermediate scrutiny test in gender-discrimination cases outside the prison setting, he wrote.

Holding Stated

Tallman declared:

“Regulations which facially discriminate on the basis of gender, such as the one at issue here, must receive intermediate scrutiny in order to ensure that they do ‘not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.’…To the extent we have not previously made clear that this is true even in the prison context, we do so now.”

To prevail on remand, he said—citing a standard set by the U.S. Supreme Court in various cases for intermediate scrutiny—prison officials must show that the regulations serve “important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.”

Items Enumerated

The types of items female prisoners can obtain which male inmates can’t were set forth:

“Items whose availability depends at least in part on inmate gender include, inter alia: products that contain small metal pieces or otherwise may be used as a weapon, such as hair dryers and electric curling irons, as well as bath robes, scarves, kimonos, and bath towels, which could be used for strangulation: clothing, such as denim jeans, that ‘would allow [inmates] to blend in with the general public’ and thus could be used to disguise escaped prisoners; sugary foods that could be used to make an alcoholic beverage known as ‘pruno’; and items winch the Department claims could give rise to disputes over gambling or money, such as necklaces and bracelets, as well as the card game Uno. For the purpose of this appeal, it is undisputed that under the current property regulation female inmates of the highest security classification housed in general population have access to more personal property than male inmates in the lowest security classification housed in general population.”

Tallman commented:

“Perhaps the Department can successfully justify its property regulation by comparing the number of violent incidents at lower security male facilities or by lower security male prisoners with the number of violent incidents at female prisons or by higher security female prisoners. Such a comparison may well demonstrate that the Department is justified in allowing women of the highest security classification in general population to possess items that men at the lowest security classification in general population cannot. This determination will be for the district court to make, bearing in mind that gender-based distinctions must be rooted in reasoned analysis by policymakers, rather than the mechanical application of traditional, often inaccurate assumptions about gender.”

The case is Harrison v. Kernan, 17-16823.

Murder Conviction

Harrison is an inmate at San Quentin. He was convicted of the Feb. 17, 1988 murder of his ex-wife, Anne Jenkins, purportedly out of jealousy that she and her new husband won $725,000 in the California lottery.

The woman was strangled and her throat was slit. Harrison has insisted he was framed.

His conviction was affirmed by Div. One of the Fourth District Court of Appeal on June 30, 1992.

That same court, on March 18, 2016, held that Harrison was not, as he claimed, the prevailing party in a writ proceeding although he obtained the document he sought under the Public Records Act. The document was released to him by the San Diego District Attorney’s Office not because he sued, the appeals court said, but because disclosure had become obligatory under intervening case law.

However, the appeals court invalidated a $450 cost award in favor of then-District Attorney Bonnie Dumanis.

Redactions Proper

On June 8, 2017, Harrison failed in its effort to persuade that court that the Office of San Diego District Attorney should be compelled to provide him with unredacted copies of additional documents in its file related to the case. He wanted to know the identities of witnesses whose names had been blotted out.

The appeals court said:

“We conclude the court did not abuse its discretion in redacting the personal identifying information of the civilian witnesses. Harrison’s need for the information is slight as the witnesses appear to have had only a peripheral role in the incident Harrison seeks to investigate and the redacted documents provide sufficient leads for Harrison to pursue at this juncture. Conversely, the need to keep the witnesses’ personal identifying information confidential is considerable as Harrison has an admitted history of committing retaliatory acts, some violent, against people he believes have directly or indirectly harmed him.”

The decisions were not certified for publication.


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