mr greenhill is a may please the court mr green hill is a deeply religious person relegated to red onion state prisons most restrictive form of solitary confinement known as s and apple easer prison officials who have violated mr greenhills faith in two ways by denied him access to friday prayer also known as juma in section him for wearing a four inch beard i intend to devote the bulk of my argument time to che satisfy the requirement he does obviously he would prefer to an attendant person but yes he does take the position mr green believes that failing to participate in the service is a terrible sin in recognition of the importance of onion offers the service in two formats weekly in person and broadcast through be closed circuit television system but because prison because prison officials prohibit all prisoners in solitary confinement from  st woman or a question goes to the substantial burden prong which would come under both the free exercise clause and in the district court's opinion od a general population setting rather than segregation where he could have television in his cell among other privileges which presumably would give him access to  twice returned refused to do that so it seems like that he had it fully within his grasp to take an action that would get him into a reduced setting in the general population and give him access also to juma services but he's the one who chose not to do this nothing to do with disciplinary infractions or anything else so if if he makes the affirmative choice that he's not going to take this opportunity how is his religious belief here he's got a pathway from what i can see without penalty to have full access to the religious services but it's he himself and the chooses not to take it so what it is after all for the purposes of this argument all assume that you're correct and that he is soley to blame for remaining in some i mean that's that's what that appears from from the record from  around a little bit and i want dispute the fact that he's a recalcitrant an obstinate prisoner and that he has engaged in misconduct but his refusal to abide by red onions regulations  regarding the step down program do not absolve prison officials of the responsibility assume all that's ok but this is a different circumstance that says nothing to do with disciplinary actions or as prison record he's given this opportunity twice to move into a lower security setting in the general population where he could presumably access religion and religious services as he wants but he says mr greenhill could not access a lower level of segregation in other words could not advance to s someone or ask him to where he would be permitted to purchase a television if he had the funds as long as he maintained a be and seventeen the policy changed from that point forward it may have been possible for him to step down with the beard defendants have evidence that it was mr greenhill has evidence  what are the criteria you get from zero to one dollar the video sees rubric contains three or four primary criteria one of which is respect another is hygiene which includes know let me just clarify for one second the general population environment that they are talking about it's called s l sex it's part of the step down program that would not afford him the ability to attend in person to mom that's an entirely different access to television if he could afford a personal television even in this s l six the least restrictive iteration of their security management unit watching   take away the one hour religious service right short exactly to be clear he does not want to watch the nightly news or sesame street he wants television access for one hour a week sole restricted to religion in our position is that while the end department is entitled to incentivize good behavior by restricting unfettered television access they are not entitled to incentivize good behavior by restricting religious application the congress has been clear that the look that religious freedom is and cannot be used as a carrot or a stick it was incumbent upon defendants to put evidence in the record that there was no other means to  you know the state has had its seems on the record undisputed record is that he's in essence zero he's denied access to a television in the state has not suggest th he's unwilling to participate i'm inclined to agree with you because it supports my case and yeah but but to be i guess the question i would have is where where's your motion for summary judgment on my question this is if there really isn't actions viewed as judge march right so i think that we are now beyond the summary judgment stage defendants have had two bites at this apple at trial it would s it is our position i'm in now i just want to be clear mr greenfield did not have a lawyer allow and is entitled to a liberal construction of his pleadings by mr greenhill that it was defendant single position this is the state's brief states as greenhouse access to television playing thing it's the art and has compelling interest in incentivizing and maintaining safety and security in the prisons and being able to classify and make television access as a privilege to be on rather than an absolute right is narrowly tailored to advancing that interest that is the proposition legal proposition that the district court if that's a correct proposition you're to lose if that's an incorrect proposition you're going to win and i i don't see where the facts dispute is perhaps on the jim ah claim there is no remaining factual dispute and this court could then rule in his favor without remeron for trial on the what would be the box solution resolved i mean he's in solitary confinement s m one if the only way he gets in television is part of an incentive program then the state takes a position that that's a good state interest in maintaining safety and and rehab and really rehabilitating prisoners and i agree that's all true but as a legal proposition is that a defense to the amount of access to the television and and if it isn't as a matter of law that's the legal position taken throughout their defendants evidence simply doesn't go to the question before this court defendant's evidence goes to a different prisoner who saw television for the purposes of entertainment and in their rules regulations they allow s and zero to have television you know you look in their thing so they're withholding it as an incentive to encourage him to go to in the stepdown program i was in arc i would say they not just allow it the regulation seemed to require in seem to invision that religion cannot be used as a carrot or a scaffold even say in there and if you look chart it's in the record green hill has put forward three easily attainable alternatives to the status quo one that he could be taken to a classroom that preexists on his pod and placed in a cage that's already there in a room that's already wired for television to that they could stick a television on the communal wall outside his cell which is pre wired in that he could watch through the window of his cell in listen and hear to juma three that they could loan him a television for an hour a week also on the record is the fact that prisoners are entitled to jay pay for and jay pay five dollars errors which are like i pads not s and zero prisoners but presumably could be passed to him through a chuck hole loaded with jumana and then they could ask for it back at that's correct he satisfied it under under either rule although it is our position that the broader rule is applicable if there are no further questions i'd like to reserve the rest of  court my name is toby heightens on behalf of the defendant obsoletes this court has recognized that maintaining prison safety and security well also respecting prisoner religious liberty presents great good program well for our program to centralize and but the difficulty is that it is not a defense to remove in other words you take the man s m c it and say i'm like you say here  answer to if he doesn't choose to go through it step down program or his infractions don't allow he still entitled to look benefits and though your defense would have to be something that interferes with your safety and the answer is it may in a very small part but i don't think that's sense in other words you can't use religion as a stick a carrot and stick proposition say if you agree to our propositions we'll give you  recited they go to the compelling government interest part of really but i don't think it goes to the least restrictive means which is your burden to prove with evidence which i'm not sure i see sure i agree it's also it goes to that primarily judging so so judge me where there's a lot there let me let me start you mention goes down to one proposition i don't want to get too confused because the one proposition is that television  has identified television as a way that he could access juma but i think it's a point of common ground he has absolutely no right under a loop or anywhere else to access a television so i think that's an important judge name where you brought it up a couple times i want to flag and all of that but the alternatives get if you recognize then the question is why is he being denied access to gitmo and any respect these willing to do it on television while he's in essence it absolutely but i think that's an important concession he makes right out of the gate i think there's a flavor to his argument at various points that we have to enter i'm i'm trying to i apologize so so you've identified the fact that we've said that it would be fixed it would be possible for us to do this i want to be very clear about what we have and have nots that the relevant age of the j is j one hundred and eighty two dollars and this is where he requests that we admit that it would be possible for us to do that we have not admitted that it would be a good idea we've not had what is your  summary judgment on the ground that the district court articulated mr greenhill appealed and asked the actually we're defending the decision in our favor procedurally mr greenhill did not at any time move for summary judgment so i don't think there's any ability of this court to grant summary judgment in his favor and i don't see my other my friend on the other side and as the again he didn't move for summary judgment so when if this case were to go for which i j t said earlier we are not limited to the defenses that we gave it in this summary judgment should we can defend this case  denial of television for the religious services is the least restrictive well will judge actually i think with respect i don't think that's the right framing and to relook i think the right framing going to look is whether any of the alternatives that he has proposed could be done consistent with our conceivably compelling interest in sikorsky correct for the service on friday correct and you have to match it actually more he requested television in his cell is because i didn't say it's no one when i know but we have to think i just want to say why is he denied a television at all for that service i don't care whether you do it in your own warden's office because there's no way why is he even tonight at all because there's no way to do so consistent with prison safety and security as with the virginia department of corrections to stop me but doesn't your policy provide that assumes zero inmates can be purchased be provided access television is a religious combination such class myself that i ask a good client that question to what i is what i want to tell them what's unsafe about intelligent this individual has been convicted eight times for tampering with the quitman that's what's unsafe about giving him a television well they he's talking about looking in through the bars into the pot well  program in other words the incentivize and the answer you just gave that you said you were told sacrum where you are in your grief and it's not a lawful defense well to go back to the question the judge clearly i want to make sure that i answer the question  that there's been a number of questions from the court about what i've been told i suspect this is not going to be a thrilling lee satisfying answer is that it is an outdated superseded version of the policy that the current policy which is available on p docs website does not say that you have access to for television for religious purposes and it seems that that's the actual answer i can give you step down program was put in place in two thousand and thirteen for twenty for teen there was no step down program and it took a period of time to update the written regulation that does not give rise to st amendment liability or liability under the loop in and of itself i think that's when a black letter to judge me march your question of why we can't do this i thought i apologize for going say one why are you not right and i've asked that security any of the alternative i mean i have asked about every single alternative in the brief and i apologize for going to the individuals but but unfortunately from the view doc perspective you can't ask the record answer affidavit or a deposition so we can't let this inmate do it for these reasons i don't see anything like that in this record to this judge  i agree with you with regard to some of the alternatives he's proposed but i think the reason involves the procedural history somewhat winding procedural history of this case so thank you except when in your grief you answer my question and this is the way you answer my  you say prison officials have learned that an inmate offenders ability to possess a television inside a cell is something that most inmates covet and is one of the biggest motivators for encouraging offenders to participate in the step down  a result the department classifieds television access as a privilege rather than a right and something that s m zero officers may earn as they progress through the step down program that is fine for safety in maine but it's not fine for d removed because you could do it you don't do it because it would then undermine your privilege to license  incentivize so again judge in america the party defending a district court decision we were defending the rationale that was given by the district court but i think there's an important distinction and assume the court disagree includes that that's legally that's different from saying there are no other defenses of it t for an hour and the answer is different depending on which one you have so one option that he has now proposed in his brief is that we bring a cell into a television engine itself for an hour the reason we can't do that is safety and security because every single that the guards go into the cell they have to take mr greenfield out of the cell they then have to install the television have to repeat the process and this is an individual with the repeated history of assaulting guards and other sounds in the record i wan make sure i answer your question judge judy some of it is in the record some of it is not so what is in the record is this not specials you guys have told does not relate to any safety or security that's over right in that is that is a piece of it i agree judge mentioned again that we said that it's possible and we would really encourage the courts look at j one each body suggested if you put them in a classroom there with the television he would have an escort to the classroom watch one hour by right and that would be a significant diversion of resources that would be necessary to remove a high security prison or from his cell bring into the classroom a sporting wiley's of these are individuals i mean the about like a television into the pot and let them look through the bars i asked that question as well judging by what problem they're the well it depends on where you put it in the pot if you let him look through the bars you press the cells as you can perhaps would know there are no bars i guess st of all there is a some there are two small open so there are no bars that he can just look through in order for him to be able to watch it through the door to his cell it would have to be quite close to the door of the cell at which point the television is physically obstructing the view into the cell which as you can probably imagine from a safety and things he requested two and only two things this is that j eighteen that's his and the only two things i mean there's you know some case law that says that you're limited to what is because he hadn't proposed them yet that that's just the commonsense yes i don't list of things you've posed and the response you guys gave and give to gave to the district court and given your brief here that not based on safety maintenance say it's based on the incentive program that we give television's only as a privilege not as a right and i gree that that would be a terrific thing and we should continue to do that based on my layperson's observations but for the real loop of purposes i think giving him an hour of television on friday seems to me you have to make a pretty in the record lists eight instances of being sanctioned for tampering with equipment and multiple instances for threats against guards or to the extent that is certainly in the or the other thing that is in the record at j one hundred and eighty three to somebody  coming in and saying look we believe analysts discuss record we don't with him for all these years we don't believe based on all these for instance that it safe for us to have a guard go into the it only to consider and rants or refuse suggestions from you may him or herself or is it upon the dock as the institution charged with the ministry of the penal system in the commonwealth  concern rests on the record as well but i think the corollary to that is where does this list target your honor i don't think this court has in any decision i've seen squarely answer the question of how we do that i think there are two options do and explain why we can't do it without anyone ever asking i think that's untenable and i don't understand mr greenwald argument the flip side though on the other side is i mean i also concede in the supreme court says this and hold if there is something that is we still have not addressed cost and safety absolutely and we'd like to do that absolutely and i think we i did i think i agree with you that we said the things in the district court that you have said judge me m r i don't think that's the only thing we said in the district court because if you look at page one hundred and three that's where the that's where there is the request for admission where we say it's physically so he says give me a television in my cell it meant that you could do that and what we say it one hundred and three dollars is we admit that we are physically able to do that but then the next sentence specifically refers to security and housing classifications so the fact that it's technologically body would have to analyze what those are and of course if you get to the other extreme where you put the television and  ten minutes later he destroys it it seems to me now you guys are off the hook i would certainly hope so your honor i would i would say yes i think i would i would certainly hope so i see my time is running out let me just leave the court with one thought i think it's important to emphasize that this is a very specific number of offenders the current estimate i have is ten in the entire virginia department of corrections and the reason they're there is because of a persistent series of serious disciplinary violations we have tried less restrictive housing with these individuals it hasn't worked but this is not a broad doc policy that applies to funders and thank you just on that i don't think the arguments being made and i hope our questions don't suggest that you should relax your  mansard so my understanding of the current policy is that inmates are permitted freedom and personal grooming so long as it doesn't promote gang affiliation and so long as the inmate has not previously been convicted of trying to hide something  greenhills religious beliefs as they pertain to the necessity to maintain a beard are still substantially burdened agreement policy is clear that he would have to shave his beard to a quarter inch initially in order to comply with their identification photo requirements if you were to shave to a quarter inch it would be you know six months to nine months before his would have a four inch beard so he would be out of compliance with his religious beliefs that's not adequate defense the state still has not had the opportunity in the central context put on a response to your suggestions as to what could be done and there are defenses should be considered well can i go back to your it framed this answer by going back to your earlier question which is what is there left to do and opposing counsel suggested that below he could marshal evidence that the jumana restriction that prohibiting hit him from access to two ma's the least restrictive means of attaining a compelling interest but they have two opportunities to do that already at summary judgment they haven't put in that marshal evidence in prove it providing mr greenhill access to whether by television or some other means is wholly incompatible with their you know logical objectives in other words that if they were to afford him access to juma it would unleash mayhem and if they've not come anywhere close to doing so on this record in fact they've argued something entirely different as we've all recognized that television for entertainment purposes television broadly is a privilege that offenders cut if not answered the question that mr greenhill posed not just want to clarify one thing opposing counsel sad in their answer brief here that mr greenhill set forth only one objective in the remainder of the alternative i'm sorry that the remainder were set forth by his counsel on appeal and that's simply not true mr greenhill has proposed each of the three alternatives in the record below that he be afforded an opportunity to watch in a cage in a classroom that they install a communal television and that he be permitted to borrow a television and sell for an hour a week all of that is in the record below this is not my say so it's