NO. 13-6827
`
`IN THE
`
`%upr2m2 Qfiuurt of the Zfflniteh étates
`
`GREGORY HOUSTON HOLT
`
`A/K/A
`
`ABDUL MAALIK MUHAMMAD,
`
`V.
`
`Petitioner,
`
`RAY HOBBS, DIRECTOR, ARKANSAS DEPARTMENT OF
`
`CORRECTION, ET AL.,
`
`Respondents.
`
`On Petition for a Writ Of Certiorari to the United States
`
`Court Of Appeals for the Eighth Circuit
`
`BRIEF OPPOSING A WRIT OF CERTIORARI
`
`DUSTIN MCDANIEL
`
`BY: CHRISTINE A. CRYER
`
`ATTORNEY GENERAL
`
`ASSISTANT ATTORNEY GENERAL
`
`STATE OF ARKANSAS
`
`STATE OF ARKANSAS
`
`323 Center Street
`
`323 Center Street
`
`Suite 200
`
`Suite 200
`
`Little Rock, AR 72201
`(501) 682-2007
`
`(501) 683-0958
`Christine.cryer@arkanSaSag.gOV
`Counsel of Record
`
`January 16, 2014
`
`

`
`QUESTION PRESENTED
`
`Whether officials at a maximum-security prison violated the Religious Land
`
`Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc, by prohibiting Petitioner
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`from growing a beard, despite his religious desire to do so, where the grooming
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`policy is necessary to protect the security and good order of the prison and where
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`the evidence,
`
`including Petitioner’s own actions, obviate that
`
`less restrictive
`
`alternatives are unworkable.
`
`ii
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`

`
`TABLE OF CONTENTS
`
`Questions Presented .................................................................................................... ..ii
`
`Table of Contents ........................................................................................................ ..iii
`
`Table of Cited Authorities ........................................................................................... ..iv
`
`Statement of the Case .................................................................................................. .. 1
`
`A. Statutory Background .................................................................................. ..1
`
`B. The Proceedings Below ................................................................................ .. 2
`
`Reasons for Denying the Petition ................................................................................ .. 9
`
`I.
`
`II.
`
`The Lower Courts Uniformly Apply RLUIPA
`Standards to Differing Fact Patterns as They Arise ........................... .. 10
`
`Respondents Properly Applied the Strict Scrutiny
`Standard and Rebutted the Four Alternatives to the
`
`ADC Grooming Policy Asserted by Petitioner at the
`Evidentiary Hearing ............................................................................. .. 15
`
`A.
`
`Lower Courts Agree that Congress Mandated a
`Strict—Scrutiny Standard When it Enacted RLUIPA .............. .. 16
`
`B.
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`There is No Record Evidence That Feasible,
`
`Less Restrictive Alternatives to ADC’s Grooming
`
`Policy Exist ................................................................................ .. 17
`
`III.
`
`Petitioner’s First Amendment Claim is Not Properly
`Before This Court
`................................................................................ .. 22
`
`IV.
`
`This Case is a Poor Vehicle for Reviewing the
`Legal Standards Under Which Prison Grooming
`Policies Must be Evaluated Under RLUIPA ....................................... .. 22
`
`Conclusion .................................................................................................................. .. 23
`
`Certificate of Service .................................................................................................. .. 24
`
`iii
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`

`
`TABLE OF AUTHORITIES
`
`CASES
`
`Benning U. Georgia, 391 F.3d 1299 (11th Cir. 2004) ................................................ .. 16
`
`Cardinale U. Louisiana, 394 U.S. 487 (1969) ............................................................ .. 22
`
`City of Springfield, Mass. U. Kibble, 481 U.S. 257 (1987) ........................................ .. 22
`
`Couch U. Jabe, 679 F.3d 197, 199 (4th Cir. 2012) ..................................................... .. 13
`
`Cutter U. Wilkinson, 544 U.S. 709 (2007) ...................................................... .. 14, 15, 17
`
`DeMoss U. Crain, 636 F.3d 145 (5th Cir. 2011) ......................................................... ..11
`
`Fegans U. Norris, 537 F.3d 897 (8th Cir. 2008) ............................................... .. 7, 20, 21
`
`Freeman U. Texas Dep’t of Criminal Justice, 369 F.3d 854 (5th Cir.2004) .............. .. 16
`
`Garner U. Kennedy, 713 F.3d 237 (5th Cir. 2013) ............................................... .. 12, 13
`
`Gooden U. Crain, 353 Fed. Appx. 885 (5th Cir. 2009) ............................................... .. 12
`
`Holt U. Hobbs, 509 Fed.AppX. 561, 2013 WL 2500568 (8th Cir. 2013) ...................... .. 8
`
`Jova U. Smith, 582 F.3d 410 (2nd Cir. 2009) ............................................................ .. 13
`
`Knight U. Thompson, 723 F.3d 1275 (11th Cir. 2013) ................................... .. 13, 14, 15
`
`Kuperman U. Wrenn, 645 F.3d 69 (1st Cir. 2011) ..................................................... .. 15
`
`Lovelace U. Lee, 472 F.3d 174 (4th Cir. 2006) ...................................................... ..13, 16
`
`Mayweathers U. Newland, 258 F.3d 930 (9th Cir. 2001) .......................................... .. 11
`
`Mayweathers U. Terhune, 328 F.Supp. 2d 1086 (E.D.CA. 2004) .............................. .. 11
`
`Muhammad U. Sapp, 494 Fed. Appx. 953 (11th Cir. 2012) ................................ ..13, 14
`
`Murphy U. Missouri Dep’t of Corr., 372 F.3d 979 (8th Cir. 2004) ............................ .. 16
`
`McRae U. Johnson, 261 Fed. Appx. 554 (4th Cir. 2008) ...................................... ..12, 13
`
`Puckett U. U.S., 556 U.S. 129 (2009) .......................................................................... ..22
`
`Smith U. Ozmint, 578 F.3d 246 (4th Cir. 2009) ......................................................... .. 13
`
`iv
`
`

`
`Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005) ............................................. .. 11
`
`Washington v. Klem, 497 F.3d 272 (3rd Cir. 2007) .................................................. .. 13
`
`Williams v. Hobbs, 662 F.3d 994 (8th Cir. 2011) ...................................................... .. 18
`
`STATUTES AND RULES
`
`Religious Land Use and Institutionalized Persons Act,
`42 U.S.C. § 2000cc et seq ........................................................................... ..ii, 1, 2
`
`MISCELLANEOUS
`
`146 Cong. Rec. 16698, 16699 (2000) ........................................................................... ..2
`
`

`
`STATEMENT OF THE CASE
`
`Petitioner Gregory Holt, an inmate in the Arkansas Department of
`
`Correction (“ADC”), seeks this Court’s review of a decision of the United States
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`Court of Appeals for the Eighth Circuit that rejected Petitioner’s Religious Land
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`Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc (“RLUIPA”) challenge to
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`the ADC’s grooming policy. Mr. Holt is a Salafi Muslim who seeks to grow a beard
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`in observance of his religion, but in contravention of the grooming policy.
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`The ADC's grooming policy, outlined in Administrative Directive 98-04,
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`states, in part, as follows:
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`D.
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`No inmates will be permitted to wear facial hair other than a
`neatly trimmed mustache that does not extend beyond the
`corner of the mouth or over the lip. Medical staff may prescribe
`that inmates with a diagnosed dermatological problem may
`wear facial hair no longer than one quarter of an inch.
`
`The purpose of the policy is “to provide for the health and hygiene of incarcerated
`
`offenders, and to maintain a standard appearance throughout
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`the period of
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`incarceration, minimizing opportunities for disguise and for transport of contraband
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`and weapons.” AD 98-04 (Trial Exhibit 1).
`
`A.
`
`Statutory Background
`
`Section 3 of RLUIPA provides that “no state or local government shall impose
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`a substantial burden on the religious exercise of a person residing in or confined to
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`an institution,” unless the government
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`shows
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`that
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`the burden furthers “a
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`compelling governmental interest” and does so by “the least restrictive means.” §
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`2000cc-1(a)(1)-(2). The Act defines “religious exercise” to include “any exercise of
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`

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`religion, whether or not compelled by, or central to, a system of religious belief.” §
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`2000cc-5(7)(A). To secure redress for inmates who encountered undue barriers to
`
`their religious observances, Congress carried over from RFRA the “compelling
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`governmental interest/least restrictive means” standard. Congress noted, however,
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`that it expected that courts adjudicating cases under Section 3 would accord “due
`
`deference to the experience and expertise of prison and jail administrators.”
`
`146
`
`Cong. Rec. 16698, 16699 (2000).
`
`B.
`
`The Proceedings Below
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`1. On June 28, 2011, Petitioner filed suit in the United States District Court
`
`for the Eastern District of Arkansas, claiming that ADC’s policy and efforts to
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`enforce the policy violated his First Amendment rights as well as those afforded to
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`him pursuant to RLUIPA.
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`(Docket Entry No. 2) Petitioner sought injunctive relief
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`only. Petitioner also filed a Motion for Preliminary Injunction and Temporary
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`Restraining Order,
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`in which he sought a preliminary and permanent injunction
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`ordering ADC Director Ray Hobbs and Cummins Unit Warden Gaylon Lay to cease
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`enforcement of the grooming policy,
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`to allow Petitioner to grow a one-half-inch
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`beard, and to cease disciplinary efforts against inmates who grew one-half-inch
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`beards. (Docket Entry No.3) Petitioner asked that the District Court impose an
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`injunction without affording the Director or Unit Warden an opportunity to
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`respond. Respondents were unaware of Petitioner’s filings. On October 18, 2011,
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`the District Court granted the motion and preliminarily enjoined ADC from forcing
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`Petitioner to trim his beard shorter than one-half-inch in length. (Docket Entry No.
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`

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`28) Respondents first
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`learned of the case upon service of the Summons and
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`Complaint on November 16, 2011.
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`2. An evidentiary hearing on the merits of Petitioner’s First Amendment and
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`RLUIPA claims was held before a Magistrate Judge six weeks later. (Docket Entry
`
`No. 73) At the hearing, Respondent Gaylon Lay, Warden of the Cummins Unit, and
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`Grant Harris, ADC Assistant Director, testified as follows to the specific rationale
`
`for the ADC grooming policy. Lay’s objections to Petitioner’s request to maintain a
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`one-half-inch beard were deeply rooted in security. (Trial Tr. 33) A person can
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`quickly alter his appearance if he is allowed to grow a beard, such as shave his
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`beard immediately upon escape. (Id.)
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`Inmates have previously hidden contraband
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`on their person, including homemade darts and other weapons, which would fit in
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`an inmate’s one-half-inch beard. (Id. at 34) Monitoring beard length would create
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`difficulties for him and his staff on a daily basis. (Id.)
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`Lay testified about a specific incident involving the Petitioner that occurred
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`after the issuance of the preliminary injunction. Although Petitioner's litigation
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`position is that he would comply with a policy restricting his beard to one-half-inch
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`in length, Petitioner threatened physical harm to a barber at the Cummins Unit
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`when the barber tried to trim Petitioner's beard to that length. (Trial Tr. 34, 35)
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`Petitioner accused the barber of cutting his beard too short.
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`(Id. at 36) Warden Lay
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`explained that the barbers cannot be changed merely because a particular inmate
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`disagrees with the length of his beard. (Id. at 37) He also expressed his concerns
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`

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`about how to determine the exact length of an inmate's beard in such a way to avoid
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`confrontations in the future. (Id. at 34)
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`Lay further testified that contraband could be hidden inside the cheek, and
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`any alteration to the appearance of the check would be masked by facial hair.
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`While these issues have been problems in the past years, the population of inmates
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`entering the ADC now is younger and more violent, which creates even greater
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`security problems than in previous years. (Trial Tr. 40) And there are numerous
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`difficulties in attempting to monitor the more than 15,000 inmates within the ADC;
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`affording them with one more place to hide weapons or contraband would not be in
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`the interest of security and safety for either employees or inmates. (Id. at 34)
`1
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`The majority of prison facilities in other states have cell block housing units
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`where inmates are housed in one- or two-person cells. In contrast, the Cummins
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`Unit and several other Units within the ADC have open barracks, each housing up
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`to 50 inmates.
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`(Trial Tr. 53) This arrangement allows inmates greater access to
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`one another, and greater opportunities for the use of weapons on other inmates,
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`compared to facilities in which only one or two inmates are together in a cell.
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`Warden Lay was also not aware of many other state facilities operating agricultural
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`programs like the ADC does. (Id. at 54) At the Cummins Unit, many inmates
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`engage in assigned agriculture work mostly outside the fence. (Id.)
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`Inmates who
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`work outside the prison fence often attempt to smuggle weapons, drugs and other
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`contraband into the prison;
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`therefore,
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`allowing beards would create new
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`opportunities for smuggling such items without detection. Lastly, Mr. Lay testified
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`

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`that allowing Petitioner to maintain a beard, while not affording the same
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`opportunity to other inmates, would elevate Petitioner’s status above that of other
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`inmates, thereby creating the real possibility of harm to Petitioner as well as others.
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`(Trial Tr. 40) One important goal of the ADC is to treat all inmates fairly and alike.
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`ADC Assistant Director Grant Harris
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`testified about
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`a particular
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`department-wide problem involving contraband the ADC has encountered over the
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`last several years, namely, the introduction of cell phones into the facilities. In
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`2011, the ADC confiscated in excess of 1,000 cell phones from inmates. (Trial Tr. 65)
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`The cell phone is now the primary covert means for relaying information between
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`the inmates and the outside world including the delivery of contraband. Mr. Harris
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`presented the Court with a cell phone SIM card that had been confiscated from a
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`facility. The Court examined the SIM card and even measured it, which was three-
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`eighths-inch by three-eighths-inch in diameter and easily capable of being secreted
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`in an inmate's beard.
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`(Respondents’ Trial Exhibit No. 2) The SIM card is the piece
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`of the phone that contains network identification and other information vital for the
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`operation of the cell phone by the inmate seeking to facilitate the delivery of
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`weapons and contraband. Mr. Harris testified that a SIM card can easily be hidden
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`inside a one—half-inch beard,
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`thus severely compromising the ADC’s efforts to
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`prevent the flow of contraband into, and within, its prison facilities.
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`Mr. Harris also expressed serious concern for officer safety if officers were
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`required to perform hands-on inspections of facial hair to search for contraband and
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`weapons. Officers would, he testified, be exposed to being cut, stabbed, and the like
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`

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`from razor blades, dirty needles, or other items. (Trail Tr. 80) Mr. Harris also
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`testified that he shared Mr. Lay’s concerns about giving one inmate perceived
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`preferential treatment over other inmates. (Id. at 70)
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`Petitioner also testified at the hearing. He testified that he had discovered a
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`case in which Muslim inmates were allowed to maintain a one-half-inch beard.
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`Based upon that case, Petitioner sought leave of the ADC to allow him to maintain
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`a one-half-inch beard. (Trial Tr. 10) He did not challenge the head hair portion of
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`the policy, only the beard section. (Trial Tr. 11) He conceded that Respondents have
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`a compelling governmental interest in maintaining safety and security within the
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`institution. (Trial Tr. 11) He also testified that not all Muslims believe a man must
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`maintain a beard. (Id. at 13) And he acknowledged that he is able to honor his
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`religion in a variety of other ways without wearing a beard, such as the use of a
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`prayer
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`rug during his worship times,
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`reading and studying the Koran,
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`communicating with a religious advisor, maintaining the required diet, and
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`observing religious holidays. (Docket Entry No. 82)
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`Petitioner admitted that approximately three weeks prior to the January
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`2012 hearing, he received a haircut and beard trim from the Cummins Unit barber.
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`(Trial Tr. 24) Petitioner conceded that he had a confrontation with the barber over
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`the length the barber was cutting his beard. Petitioner informed the prison staff he
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`was “at war” with the barber and threatened physical harm to the barber if they
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`were to cross paths in the future. (Id. at 25) As a result of Petitioner’s actions,
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`which the ADC considered a serious, genuine threat, the ADC required that the
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`

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`Petitioner and the barber no longer be allowed to have any Contact with one
`
`another.
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`Petitioner confronted Warden Lay and Assistant Director Harris with
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`alternative policies he believed would allow him to maintain a one-half-inch beard,
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`while addressing ADC's security and other concerns.
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`Both Lay and Harris
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`explained why Petitioner's proffered options were unworkable and provided support
`
`for their opinions. Petitioner did not offer any testimony other than his own, nor
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`did he offer any documentary evidence at the hearing.
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`In addition to receiving the testimony offered by Petitioner, Warden Lay, and
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`Assistant Director Harris, as well as the documentary evidence offered by ADC, the
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`Magistrate Judge took judicial notice of the evidence that had been submitted in a
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`previous ADC RLUIPA case. Fegans v. Norris, 537 F.3d 897 (8th Cir. 2008). During
`
`the bench trial in Fegans, ADC Director Larry Norris testified that the ADC
`
`prohibition on inmate facial hair prevented inmates
`
`from changing their
`
`appearance, and made it easier for law enforcement to track and identify an inmate
`
`following an escape. (Docket Entry No. 82) He also said that “an uncut beard would
`
`make identification more difficult and would facilitate the smuggling of contraband.
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`An uncut beard creates a better disguise for an escapee than a quarter-inch beard,
`
`because it conceals the contours of an inmate’s face.” Fegans, 537 F.3d at 907.
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`3. Following the hearing, the Magistrate Judge issued Proposed Findings
`
`and Recommendations that Petitioner’s claims should be dismissed and that the
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`court’s previous order granting a preliminary injunction should be vacated. (Docket
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`

`
`Entry 82) The District Court approved and adopted the Proposed Findings and
`
`Recommended Disposition in their entirety. A few days later, however, the court
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`granted Petitioner’s motion to stay the lifting of the preliminary injunction.
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`Petitioner appealed the dismissal of his RLUIPA claim, but not the dismissal
`
`of his First Amendment claim, to the United States Court of Appeals for the Eighth
`
`Circuit. The Eighth Circuit affirmed in a short, unpublished opinion. Applying
`
`strict scrutiny,
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`the Eighth Circuit concluded that Respondents had met their
`
`burden under RLUIPA of establishing that the ADC’s grooming policy was the least
`
`restrictive means of furthering a compelling penological interest, notwithstanding
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`Petitioner’s citation to cases indicating that prisons in other jurisdictions have
`
`sometimes been able to meet
`
`their security needs while allowing inmates to
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`maintain facial hair. Holt v. Hobbs, 509 Fed.Appx. 561, 2013 WL 2500568 (8th Cir.
`
`2013).
`
`Following the Eighth Circuit's decision, the Respondents moved the District
`
`Court to Vacate the preliminary injunction. The District Court did so on September
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`16, 2013. Petitioner then petitioned for a writ of certiorari and, two weeks later,
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`moved for a Stay of Enforcement Pending his Petition for Certiorari. On November
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`14, 2013, this Court granted Petitioner’s application for an injunction. Respondents
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`are currently enjoined from enforcing the ADC’s grooming policy to the extent that
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`it prohibits the Petitioner from growing a one-half-inch beard.
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`

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`REASONS FOR DENYING THE PETITION
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`The Eighth Circuit’s unpublished decision denying Petitioner’s RLUIPA
`
`claim does not warrant this Court’s review. Petitioner erroneously argues that there
`
`is a split among the circuits regarding how RLUIPA applies to prison policies that
`
`prohibit facial hair. Closer examination of those cases reveals that, rather than a
`
`true split on any matter of law, each case applied the same legal analysis under
`
`RLUIPA to varied and nuanced factual records. The differing outcomes reflect
`
`differences in the proof presented to the courts and not disagreements about the
`
`applicable law.
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`Nor does Petitioner’s First Amendment claim warrant review. That claim is
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`not properly before this Court because he did not appeal
`
`the District Court’s
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`dismissal of it. He may not now advance an argument already abandoned on appeal.
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`In any event, this case is a poor vehicle for any further analysis of RLUIPA.
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`The District Court took judicial notice of the evidence considered when the ADC’s
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`grooming policy was created in 1998, and it considered the new testimony of prison
`
`officials who, based on their expertise and experience, convincingly refuted the
`
`notion that any proffered alternatives were feasible. The evidentiary record is
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`devoid of evidence suggesting that ADC’s concerns are overstated or that a proffered
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`alternative is feasible. Other than Petitioner's own testimony about What the policy
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`should be, the record contains no evidence at all rebutting the evidence submitted
`
`by the ADC. The Court should not take a case in which the trial court’s evidentiary
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`

`
`record is so one-sided. Accordingly, the petition for a writ of certiorari should be
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`denied.
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`1.
`
`THE
`
`LOWER
`
`COURTS UNIFORMLY APPLY RLUIPA
`
`STANDARDS TO DIFFERING FACT PATTERNS AS THEY
`
`ARISE.
`
`In arguing that the Eighth Circuit’s decision Warrants review, Petitioner
`
`contends that there is a split among the circuits regarding the application of
`
`RLUIPA to prison policies that restrict inmate facial hair. There is not. Closer
`
`examination of the relevant cases reveals that, rather than a true split as to
`
`substantive law, each court applied the same legal standard in addressing factual
`
`records that varied from case to case.
`
`The differences in outcomes reflect
`
`differences in the proof presented in each case.
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`Specifically, Petitioner points to decisions by three federal courts of
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`appeals — the Fourth, Fifth, and Ninth Circuits — holding that prison bans
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`on beards violate RLUIPA. But the Fourth and Fifth Circuits have also
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`issued decisions upholding prison bans on beards against RLUIPA
`
`challenges. None of those decisions prompted en banc review, presumably
`
`because the courts of appeal recognized that the differences in results
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`stemmed from differences in the facts rather than any differences in legal
`
`standards.
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`Importantly, the Ninth Circuit decisions were expressly based
`
`on the state’s failure to offer proof on the “least restrictive means” issue.
`
`The Ninth Circuit. In 1995, Muslim prisoners asked the court (1) to
`
`prevent the California DOC from disciplining inmates when they missed work on
`
`10
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`

`
`Fridays in order to attend Jumu’ah Prayer and (2) to allow inmates to maintain
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`one-half-inch beards for religious purposes. Mayweathers U. Newland, 258 F.3d 930
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`(9th Cir. 2001). A total of 15 preliminary injunctions in favor of particular inmates
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`were issued during the pendency of the litigation, allowing them to attend Jumu’ah
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`Prayer to maintain one-half-inch beards. The district court eventually granted a
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`permanent injunction in favor of the inmates when the state failed to adequately
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`justify that its policy restricting beard length was necessary for security concerns.
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`The Ninth Circuit affirmed the district court's decision. The Ninth Circuit's
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`decision reflected the failure of the state to present evidence in support of its beard
`
`policy, not a misinterpretation of applicable law. Mayweathers v. Terhune, 32
`
`F.Supp.2d 1086 (E.D.CA. 2004).
`
`The same is true of Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005),
`
`decided the following year. There, a Native American inmate presented a RLUIPA
`
`challenge to a specific portion of a grooming policy pertaining to hair length.
`
`In
`
`reversing the district court, the Ninth Circuit held that the prison had failed to
`
`meet the second prong of its burden under RLUIPA. The California prison argued
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`that safety and security of both inmates and prison staff were compelling interests,
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`but it presented only conclusory statements rather than persuasive.evidence that
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`the hair grooming policy was the least restrictive means of ensuring prison security.
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`Id., 418 F.3d at 999.
`
`The Fifth Circuit.
`
`The Fifth Circuit has twice ruled that prison
`
`restrictions on beard length do not violate RLUIPA. See, DeMoss v. Crain, 636
`
`ll
`
`

`
`F.3d 145 (5th Cir. 2011) (per curiam); Gooden v. Crain, 353 Fed. Appx. 885 (5th
`
`Cir. 2009) (per curiam). The court has once ruled otherwise. See Garner 1).
`
`Kennedy, 713 F.3d 237, 248 (5th Cir. 2013). The Fifth Circuit explained that
`
`its previous rulings were based upon "a substantially different record" than
`
`the record in Garner, mandating the different outcomes.
`
`Id.
`
`The Fourth Circuit. The Fourth Circuit in McRae v. Johnson, 261 Fed.
`
`App’x. 554 (4th Cir. 2008), affirmed the dismissal of RLUIPA claims brought by a
`
`group of inmates challenging the Virginia Department of Corrections’ (“VDOC”)
`
`grooming policy. The district court explicitly relied upon the evidence presented by
`
`the VDOC demonstrating the security risks posed by allowing inmates to wear long
`
`hair or facial hair. Id.at 560. VDOC Director Gene Johnson, a prison administrator
`
`with more than 40 years of prison experience, testified that Virginia’s prohibition on
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`facial hair was the least restrictive means of suppressing contraband, maintaining
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`the health and safety of inmates and staff, and preventing prisoners from quickly
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`changing their appearance. Id. at 558. Specifically, Johnson testified that prior to
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`the implementation of the VDOC grooming policy, he had witnessed a correctional
`
`officer injured by a razor blade hidden in an inmate’s hair; had seen inmates
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`conceal contraband such as wires, rope, rocks, and tobacco in their hair; had known
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`of beards that caused delays in medical treatment by concealing serious conditions
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`such as tumors and lesions; and had witnessed facial hair infested with lice and
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`spiders. Id. Despite the plaintiffs attempts to counter this evidence with testimony
`
`12
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`

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`from a prison management consultant, the district court, and ultimately the Fourth
`
`Circuit, held that the State had met its burden under RLUIPA. Id.
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`One year later, the Fourth Circuit examined a very different record
`
`on appeal
`
`and determined that
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`a South Carolina Department
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`of
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`Corrections grooming policy, which required the forcible shaving of the
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`heads of noncompliant inmates, violated RLUIPA. Smith v. Ozmint, 578
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`F.3d 246 (4th Cir. 2009). In Smith, the court found that the state failed to present
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`sufficient evidence to establish that compelling inmates to shave their heads
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`constituted the least restrictive alternative.
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`In a 2012 case,
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`the Fourth Circuit determined that
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`a VDOC policy
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`prohibiting inmates from Wearing a one-eighth-inch beard for religious
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`reasons violated RLUIPA. Couch v. Jabe, 679 F.3d 197, 199 (4th Cir. 2012). The
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`court based its decision on the state's failure to present sufficient evidence in
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`support of its case — not upon a differing View as to the correct legal standard.
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`Id.
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`at 204.
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`In each of the Fourth Circuit cases,
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`the same legal standard was
`
`applied, but different evidentiary records resulted in different outcomes.
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`Other Courts.
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`In his Supplemental Brief, Petitioner cited seven
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`additional cases.1 Of those seven, only one, Muhammad v. Sapp,2 an
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`1 Coach 1). Jabe, 679 F.3d 197 (4th Cir. 2012); Garner U. Kennedy, 713 F.3rd 237, 85
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`Fed.R.Serv.3d 248 (5th Cir. 2013); Jova v. Smith, 582 F.3d 410, 416 (2d Cir. 2009);
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`Knight U. Thompson, 723 F.3d 1275 (11th Cir. 2013); Lovelace U. Lee, 472 F.3d 174
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`(4th Cir. 2006); Muhammad v. Sapp, 494 Fed.AppX. 953, 2012 WL 5359235 (11th
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`Cir. 2012); and Washington U. Klem, 497 F.3d 272, 283 (3rd Cir. 2007).
`
`13
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`

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`unpublished case from the Eleventh Circuit, addressed beard grooming policies
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`under RLUIPA. The Eleventh Circuit’s holding in that case was consistent with the
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`Eighth Circuit’s decision here.
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`In Muhammad, an inmate in the Florida
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`Department of Correction challenged a policy that required inmates to shave or be
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`forcibly shaved.
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`The district court held that the prison’s policy did not violate
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`RLUIPA, even though the prisoner contended that his religious beliefs provided
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`that he should not cut his beard. The district court found that the prison's
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`grooming policies furthered a compelling government interest and were the least
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`restrictive means of furthering that compelling interest. The Eleventh Circuit
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`affirmed the district court’s decision.
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`Petitioner also cited (Supp. Br. 1-4) the Eleventh Circuit’s denial of en banc
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`rehearing in Knight v. Thompson, 723 F.3d 1275 (11th Cir. 2013). As an initial
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`matter, the facts here are not similar to those in Knight.
`
`In Knight, a group of
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`Native American inmates in Alabama’s DOC sought to maintain unlimited hair
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`length for religious reasons. Beards were not at issue in Knight. Moreover, the
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`Eleventh Circuit’s decision in Knight is entirely consistent with the Eighth Circuit’s
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`decision here. Both sides in Knight relied upon expert testimony and numerous
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`evidentiary exhibits admitted at trial. The Eleventh Circuit found in favor of the
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`prison, citing to Cutter U. Wilkinson, supra.
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`The court concluded that although
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`RLUIPA protects,
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`to
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`a
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`substantial degree,
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`the
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`religious observances of
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`2 494 F-ed.AppX. 953, 2012 WL 5359235 (11th Cir. 2012)
`
`14
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`

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`institutionalized persons, it does not give courts carte blanche to second guess the
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`reasoned judgments of prison officials. Knight, 723 F.3d at 1283.
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`Finally,
`
`in addition to the cases cited by Petitioner,
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`the court
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`in
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`Kuperman v. Wrenn, 645 F.3d 69, 80 (1st Cir. 2011), noted that its dismissal of
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`a Jewish inmate's RLUIPA beard-length claim rested upon the failure of the
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`inmate to submit "admissible evidence to counterbalance Prison Officials’
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`affidavits." Kuperman, 645 F.3d at 80.
`
`The circuit courts have not held that facial hair restrictions are always
`
`permissible; nor have they held that such restrictions are always impermissible.
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`Rather,
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`they have based their rulings on the facts presented, examined each
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`grooming policy in the context of the factual record, and considered each state’s
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`particular circumstances under RLUIPA’s strict-scrutiny standard.
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`That
`
`is
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`precisely what Congress anticipated courts entertaining RLUIPA challenges would
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`do, “accord[ing] ‘due deference to the experience and expertise of prison and jail
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`administrators.” Cutter U. Wilkinson, 544 U.S. 709 (2007).
`
`II.
`
`RESPONDENTS
`
`PROPERLY APPLIED
`
`THE
`
`STRICT
`
`SCRUTINY STANDARD AND REBUTTED THE
`
`FOUR
`
`ALTERNATIVES
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`TO THE ADC GROOMING POLICY
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`ASSERTED BY PETITIONER AT
`
`THE
`
`EVIDENTIARY
`
`HEARING.
`
`Petitioner argues that the circuits are divided over “Whether a prison system
`
`must actually consider
`
`less restrictive measures before rejecting them” and
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`“whether a prison system must demonstrate that
`
`it cannot grant
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`religious
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`accommodations that other systems have successfully granted.” (Pet. Supp. Br. at
`
`15
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`

`
`2-3). Petitioner is wrong. There is no split among the circuits as to the legal
`
`standard applicable to RLUIPA grooming cases.
`
`A.
`
`Lower Courts Agree That Congress Mandated a Strict-Scrutiny
`Standard When it Enacted RLUIPA.
`
`Section 3 of RLUIPA requires courts to apply strict scrutiny to government
`
`actions that substantially burden the religious exercise of institutionalized persons.
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`Benning v. Georgia, 391 F.3d 1299, 1304 (11th Cir. 2004); Freeman v. Texas Dep’t of
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`Criminal Justice, 369 F.3d 854, 857—58 n.1 (5th Cir. 2004); Lovelace v. Lee, 472 F.3d
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`174, 186 (4th Cir. 2006); Murphy U. Missouri Dep’t of Corr., 372 F.3d 979, 987 (8th
`
`Cir. 2004). Thus, prison officials must prove that any substantial burden upon an
`
`inmate’s religious exercise is necessary because it is the least restrictive means of
`
`accomplishing a compelling state interest.
`
`Petitioner argues that, because Various courts have placed differing degrees
`
`of weight on certain types of evidence, there must be a circuit split regarding the
`
`underlying legal standard. But the strict-scrutiny standard is one of this Court’s
`
`most clearly-defined legal tests.
`
`It is applied every day by lower courts in cases
`
`raising various types of claims, such as cases involving race-based decisions and
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`claims involving the alleged deprivation of fundamental rights. Lower courts have
`
`demonstrated an ability to apply the stri