Thursday, August 26, 1999
Prisoner's beard-cutting case headed to trial
Forced shave against faith of Orthodox Jew
BY BEN L. KAUFMAN
The Cincinnati Enquirer
Saying they forcibly cut an Orthodox Jew's beard and sideburns for security reasons does not get Ohio prison officials off the hook, a federal judge ruled this week.
Nor are they entitled to the immunity generally available to public officials for discretionary decisions, U.S. District Judge Susan J. Dlott continued.
“The law requires some basis in actual fact for the justifications posed by prison officials, not merely unsupported generalities,” she said.
In this case, Ohio failed to show that “legitimate penological interests” overwhelmed Hbrandon Lee Flagner's freedom to practice his religion, she said.
With that, Judge Dlott denied the state's motion for pretrial summary judgment.
“That means we'll go to trial,” Assistant Ohio Attorney General Marianne Pressman said on Wednesday.
Against the odds
Despite the unresolved conflict, there was some agreement:
• Prison officials forced Mr. Flagner to submit to barbering in 1996 at Lebanon Correctional Institution and 1998 Madison Correctional Institution.
• Mr. Flagner's faith prohibits cutting his sideburns or beard.
• Prison officials may override his First Amendment right to practice his religion when security requires it.
Had Judge Dlott granted summary judgment to the individual officials, only the state would have faced Mr. Flagner's civil rights claims on Sept. 27.
“We're cheered by the judge's decision,” Michael J. O'Hara, Mr. Flagner's attorney, said. “We got our chance for a jury and that was Mr. Flagner's hope from the outset.”
Typically, Ohio wins pretrial summary judgments in prison grooming cases. Judges usually accept prison officials' reasons and are loath to intervene in institutional management. Also, state officials generally are entitled to immunity unless they violated a clearly defined right without justification.
However, summary judgment is appropriate only when there is no argument over the central facts and the judge need only decide whom the law favors.
A security issue, or not?
What sets Mr. Flagner's case apart is Mr. O'Hara's argument that the facts don't support Ohio's security argument and the whole case turns on that question.
Judge Dlott said Mr. O'Hara “presented extensive evidence attacking the validity of each penological interest” argued by the state.
She said summary judgment was unwarranted because jurors “could reasonably conclude” that enforcement of prison grooming regulations was an exaggerated response to” security reasons.
Mr. Flagner's other claims of anti-Semitic harassment at Lebanon have been dismissed.
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