early thank you my name is steven goldblatt i'm a professor at georgetown university law center and i was assigned in this case to represent mr in cooma with the court's permission argument today will be presented by emily came erkki a third year law student at the law center was appearing in please the court mr a member of the nation of gods and earths his spend nearly twenty years in solitary confinement and he could remain there indefinitely solely because he will not renounce his religion because genuine issues of material fact remain on this record summary judgment should be reversed for three reasons first mr anchorman has a clear liberty interest in avoiding such restrictive confinement and his conditions are atypically harsh compared to th baseline second given the string commits liberty interest genuine issues remain as to whether he is receiving the process he is due meaningful ongoing and individualized review of the need for his continued segregation achieving any security interests particularly when the majority of the nation of god centers are are already in the general population the district court failed to find a liberty interest assuming that renunciation somehow mitigated has argued and we're arguing that effectively the first two options are collapsed into each other because prison officials are making it clear that he will not receive meaningful review until unless and until he renounces his religion on the initially classified in general population and the record in the regulations indicate that the difference is not the religious affiliation but the actions of the appe the member nation of god interests in segregation and they've moved many of them to the general population i think that only strengthens our argument that at this point and prison officials have not shown that the group continues to be virtue of the fact the terms under which he's being held how can you commit infractions if there strip searching him every time he leaves his cell i mean it's kind of a two word sword i understand you're arguing that suit restriction of liberty interest but it certainly suggests why several you know infractions the inmates could commit while in solitary behavior towards prison guards and other prison staff and well then let's get to the liberty interest issue here get it seems to me that's pretty fundamental to your analysis what is the different difference if any in the liberty interest analysis when the classification is based on punitive and disciplinary considerations as opposed to simply being in there for having committed a crime well first of all this is not ordinary administrate of segregation and i think it's clear from the record that mr income is twenty years in solitary confinement is not the average case and i but i'm trying to get a handle on how the liberty interest analysis shifts if it does at all based on the fact that he's there because of his conduct not because of an ordinary costo deal classification based on the crime that he committed that got him to the penitentiary i think that the supreme court's decision in standard suggests that there's not much meaningful distinction between administrative and disciplinary segregation which i think is what you're referencing and also i think it bears pointing out that the wilkinson court wilkinson versus austin another supreme court due process case was dealing with members of the crips there actually who had either through  some sort of conduct while in prison been considered for reclassification to the maximum security unit and that did not affect the liberty interest analysis and wilkinson and i don't think it should here either you're saying it's the syrians or then it's  same it's the same it's the substantially the same analysis looking under wilkinson at the tally of the circumstances of the inmates confinement which here short nearly harsh and also looking into whether that confinement could be indefinite and prison official he's receiving meaningful ongoing classification review that leaves him with essential a no way out and it's very possible that the real basis of your argument in a few very short  man's been in twenty years and you don't think he's ever got any real review and that's what you want yes like um you're not entitled to anything more than that show him no your honor we're not and and i have a question to ask you about that because the supreme court doesn't seem to have ever told us they've told us what you don't need you don't have to have a hearing you don't have to see the person face to face you don't have to have any elaborate thing in writing you do maybe they don't even say you have to have anything in writing which stated quote requiring officials to provide a brief summary of the factual basis for classification review and allowing the enemy every battle opportunity and quot are quote among the most important procedural mechanisms for purposes of avoiding  because the ohio statute have that by the time that the wilkinson court decided the case if they were talking about what existed and then they said the process was sufficient remember the process was sufficient because it was a very comprehensive three tiered annual review where the enemy did have opportunity everybody has only have to be annually i mean we don't even know that when twenty years does seem like a long time to just get every month someone signing off right but what i'm looking for is a year early if they wrote this brief thing and gave it to the inmate and let him so let him have a chance to come back that would be severe i think what's missing from this record your honor is sufficient notice of the reasons they're keeping him in confinement and the opportunity rebuttal which as you stated under the supreme court's precedent it does not need to be a formal type of hearing in the prison context it's you know taken into account that it's a burden on prisons to have very formalized procedures but at least some opportunity to respond to the reasons keeping him in confinement or how often do they have to i think under wilkinson annual review would be sufficient if it were meaningful review arguably getting war review now getting monthly review not getting elaborate talked about wilkinson but i i actually i've i've looked at a lot of records of my life and i have what looks to me like they actually do make a review somebody comes in every classification review policy that's what's supposed to happen and also under their class we usually maintain that they didn't he either is a genuine issue on his record and he's presented under budget evidence that he's never been visited by that by anyone precedent i believe that was appropriate because the score in coward versus j and made clear that an evidentiary hearing would be necessary to do an individualized assessment of an enemy's religious practice to find that his religion was hobbs a supreme court case that came out in january the standard is quote exceptionally demanding and prison officials have tried to rely on first circuit i have first amendment that the record is clear that there is an obvious lesser shift of alternative here which is to ask mr to renounce any current dangerousness or violence and that's something that other prison systems in the circuit have died and the west virginia prison system has renunciation process where the enemy can renounce violence and i think that would be a much better way of getting at the prison security interests without burdening mr income is religion and i th current violence in the s t c prison system they have not shown that in fact they they state that the nation of god's and airiest had the incidents of violence have decreased the five percent is decision in one thousand nine hundred what about the degree of violence i mean there was a producer going display of violence when they didn't back in gated taking hostages or salting using weapons so isn't that something that the prison officials are entitled to consider and not withstanding the passage of time i think the passage of time is important your honor especially in light of the fact that mr and ms argue that right i agree with you important but my question was isn't this also the nature of the violence the extent of it the fact that it was directed at the person with the words is not something that nevertheless survives to some degree in the analysis prisons however mr cooper has argued that the riot itself was not in keeping with the tenets of his religion and that in fact was against his his religion and i think that his individual behavior in s m u for the last twenty years where he has been infraction free demonstrates that he at least as applied to him which is important under believe and his religion does not teach violence and so there needs to be some sort of match up between the religion itself and the propensity for violence or the threat of violence and prison officials not presented adequate evidence on this record to establish that  theme the overarching argument that has been made by mr and kumar and his counsel is an absence that twenty years has passed since the one nine hundred ninety five riot which resulted in mr first being put into segregation in the maximum security unit and ultimately i think in two thousand and six being moved to the special management unit but still remaining in segregation that that gives rise to an argument that he no longer belongs in segregation and in essence what i think that boils down to is a claim that hasn't been pled and i claim that hasn't been argued and that is whether or not this is some sort of disproportionate punishment in fact  process that is correct so it has been just segregated if you will to them well that's true but i think part of the real argument first of all they repeatedly throughout their brief argue that this is punishment and they fail to recognize that there's a distinction between disciplinary segregation which this is not and security detention which is what this is but horton sure i regularly have it on here and that's true and  really what triggered this thought in my mind is this court's decision from a few weeks ago where the court actually in judgments i know you read wrote the opinion makes the exact point that in essence in a court in fact the court said court found that there was no liberty there was no liberty interest i mean that's an all thirty day review and conceding that that is and he's entitled as an alternative position we have shown that if this does give rise to a liberty interest there's no specific statute that says he has to be you know based upon his conviction for murder he has to be held in security and that's not what i mean there is you're right that it was two which is the equivalent of would be the equivalent what you dealt with and pray to that is one element of create open another element was that there was nothing in the state statute regulations or anything that ever gave him any right to a hearing it was because of the sentence to be sure but here this man does have a right to some sort of review under the state's own regulations and but that's without any type of acknowledgement of course that there's a liberty interest those those protections of the will then but you you your claim about no liberty interest is only because you don't think that this is severe and to the first element but it doesn't go to the fact that there is no state regulation it's not it's just not the same situation as well as as far as the first prong of the due process analysis i agree with y since as this court distinguished in bred toe that bevere ought to be dealt with disciplinary detention and not any other type of scenario but besides that i mean if you get to the issue of due process even if the court finds a liberty interest and we believe the district court's analysis of that issue is absolutely correct by looking at whether or not there is a typical and significant hardships even using the baseline from bever out to have the general prison  proper analysis relying on the precedent that's available wilkinson and beverage but as an alternative position as we argue in our brief even if there is a liberty interest due process is provided and certainly using  facial challenge this is not a suit against any type of individual it's a suit against the current director who actually wasn't even a director when all this occurred it's an injunctive relief claim only and i think that's important to recognize also think it's very important to recognize something that mr coombes counsel is not recognized in their brief is the burden of proof on the due process claim was the plaintiff's burden of proof so the absence of any evidence in this record doesn't you that's correct and the the burden of him to prove that the process is not adequate how would he go about doing what he can do in texas law he could do it through discovery he could do it he mean there was absolutely no written discovery has been provided and quite frankly that wasn't the focus somehow i think if you look back at the way this case was a little game in the lower court it was litigated primarily as a religious claim with this whole premise that he's being forced to renounce this we're not  not due process by any particular classification a worker who didn't follow policy but we have established because this is a facial challenge is number one what the policy requires and whether or not that was violated or not is not the issue is whether or not what is what the policy is and a facial challenge what the policy is whether that meets the constitutional minimums of set by supreme court's case long he would be helms and the welcome to the austin case and number two we have showed that he is receiving those thirty day notices in those thirty day reviews not only by the i c c but also by the war and then there's a third aspect of this i'm looking at three paragraph one and half page affidavit here and it says his cuss piece that is reviewed by s and you classification committee review board at libor correctional institution do we have a state regulation norse state policy in the record unit policy and within that policy there are provisions regarding security detention and the and the review that is that is required if you turn to page one thirty eight of the joint appendix it provides a section called required reviews right and that is that shows what the policy requires now whether or not a specific institutional core a caseworker is providing that or not is not the dispositive issue in this particular paragraph two point two zero point four which is on the preceding page one hundred thirty seven that the section under security detention inmates may appeal the decision of the i c c through the inmate grievance system and that's very important and we made that point in our brief and in reply they suggested that was a an argument that somehow feel our exhaustion was not accomplished in this case and that's not the point that was not the point at all the point was that if he's not satisfied with the procedures and he's not satisfied with the decision of the i c c he has the grievance rights to appeal that and what's significant under south carolina law and we didn't touch on this probably as much detail in my brief as i should have maybe i should have done a  the bottom line is through the grievance procedures there's two steps to south carolina grievance procedure and as well as stated in case law from the district court of south carolina but what's important there is if it involves the liberty interest the south carolina supreme court some fifteen years ago now adopted in a cake case called versus state a process whereby if there is a liberty interest there are property interests implicated by that grievance there is also a pure rights then to the south carolina ministry of law court and from the administrative law court on to the south carolina appellate courts so there is indeed some substantial procedure and process that's in place for someone who wants to challenge their classification status or or and custody reviews now what's important to the recognise in this case is this is far beyond what was even addressed in wilkinson i mean wilkinson made the very point that there is no hearing that's required there's no adversarial process in fact in the reply brief they said the made the point that the part of the corrections hasn't produced in this case any transcripts of any hearings what we don't know type of transcript as we're hearing is re is the ability to go beyond the grievance procedure and i really am i am want to hear your explanation i'm sorry i want to hear whether what your answer to that question is you you are telling us that this equals more than what ohio provided under its new rules fairness as to the subsequent reviews that are available after someone is placed in the mad the supermax facility was pretty elaborate well and really what wilkinson focused on is placement of the individual into supermax and what this case involves is not the initial placement that happened back in one nine hundred ninety six and it's not challenge what this case involves is the current procedures which is long after the initial placement in segregation so there is a significant difference now wilkinson doesn't go to the opinion doesn't go into great detail as to what the review is subsequent to the initial placement what it talks about   what is difficult to grasp in this case i believe is that this whole idea of renunciation now department of corrections does not recognize the five percent or as nation of gods and earths as a religion now recognize that the courts of to avoid that issue have always assume that it's a religion and that issue hasn't been specifically decided within the circuit but even if you assume it's a religion you have to understand the s t g policy which allows for a gang member to renounce his affiliation with a gang is not directed at religious believes it's directed it's an opportunity for someone who is a member of a gang to basically were noun's his affiliation with that gang and essentially be able to have his s t g validated status lifted but importantly that has only one mechanism in place and that is significant one mechanism in place to be able to challenge s t g designation now wh and security detention clearly it's his conduct in the past that is holding him in that in that capacity and the reason that's clear is because a majority of five percent hers are not in security detention and what is significant and this also goes to the whole issue of the least restrictive alternatives as judge norton found when this policy was first implemented in one thousand nine hundred six after the riot that mr and kumar and other were involved in what occurred was anyone who was validated as a member of a gang including the five percent ours were automatically moved to security detention they were put an administrative segregation that was challenged by a number of inmates on their first amendment grounds and we have the landmark required to meet this incredibly difficult but the least restrictive voter that's right and you can't just set up three straw men and say well we've offered these three or we've offered this one that would giving him that and these other two are impossible and that demonstrates the least restrictive alternative well i mean what this court requires of the couch cases that you show that you considered alternatives and why they were rejected and we have provided that information through the affidavit of robert weren't all that necessary  case and it's not his bird to come up with that it or burden to show there is not that's correct and i believe that we have shown that because as judge norton found in the district court we have shown that we have actually got the additional step something you don't typically see in relief cases of recognizing a way to make at least worst restrictive in implementing and that's the point that i was trying to make that in essence as opposed to the way the policy was originally implemented where all s t g validated inmates were then put into detent security detention that's not the way it works anymore and instead it is only those inmates with a history of the type of violent behavior that you have well that was actually added very late in the case but yeah that he he has not been able to participate in the on or days as he says and those are forty year so is there been any is there a possibility that you could have four right and it's sort of difficult me to answer that because this whole idea about the honor days was thrown in i think in our and his and his objections for the first time and hasn't been addressed by the mystery of who mine is brief other than in a footnote saying we reserve that issue when it goes back as i understand what their challenges their challenges to this whole idea of renunciation and whether this renunciation policy and that has been the focus of the way this case has been briefed and presented in the district court and to this court and so based on that being the way the case has been presented and that's the issue if i could just sum up for about twenty seconds with that being the issue believe the judge norton in the district court got it absolutely correct that number one that there are compelling interests of security and maintaining prison internal prison order and that we have shown that that is the least restrictive alternative and what's important with this one on c h and policy as i indicated it's only one form of someone being able to have the s t g status removed and it's got to be sincere it's not lip service it's not simply we want someone to come in and actually just tell us what we want to hear it has to be sincere and meaningful and it wasn't directed as any type of religious exercise we would ask the court to to affirm the district first of all this is not a facial challenge there are genuine issues of material fact as to whether mr in cooma is receiving meaningful ongoing review and on this record it's not clear that he is  meaningful review is really key here because otherwise this is simply a punishment for something that he did twenty years ago and i think there's also a genuine issue of material fact as to whether they're just simply five the prisons policy s t c policy and opinion twenty two twelve requires that for and me to be receiving review under the prisons own procedures there is a classification hearing which can be waived  effectively eliminates the possibility of any release and that's something that actually the fifth circuit recently found in a case where they did find a liberty interest and a lack of meaning for review and i just want to jump to  the least restrictive means problem which i didn't address as fully in my opening the supreme court and hope for since hobbes made it clear that mere consideration of alternatives was not sufficient to meet be exceptionally demanding really instead of just a consideration the court required in whole that the prison give reasons for why they couldn't implement a less restrictive alternative at least as applied to the inmate there i mean in that case other prison systems had adopted the two photos method of identification and the supreme court said that arkansas had not shown why they couldn't adopt that as well have anything comparable in this record about an alternative objectives of security and it would be much less burdensome on mr in cooma as religious practice essentially prison officials have said that the way that they evaluate members of the nation of god's earth getting into s m u is by an individualized review of their conduct but for some reason prison officials have stated they can't do that same individualized review for letting prisoners out of asked him you know and i don't think that on this record they have prevent presented sufficient evidence to show that they've met their burden under really strict scrutiny and if there are there are no further questions thank you very much