[00:00:00] Speaker 05:
And so just for the record, and we have, I believe we have a supervisor here for the law students, and is that James Sohn?

[00:00:12] Speaker 05:
All right, so your presence and your certified law students, so we welcome that.

[00:00:17] Speaker 05:
And also, this is a pro bono case, so I don't forget when the case is concluded.

[00:00:24] Speaker 05:
We do thank lawyers and law students and clinics for doing pro bono work.

[00:00:29] Speaker 05:
We appreciate all of you being here, but it is helpful for the court when we ask people on the pro bono program.

[00:00:37] Speaker 05:
to handle it, and we realize that it's an experience for the students, but it's also a service to the court.

[00:00:45] Speaker 05:
So thank you in advance for that.

[00:00:47] Speaker 05:
Now, I note on here, I have two law students, Elizabeth Spath and Catherine Kreitzberg, and it appears that Elizabeth Spath will be arguing first, and you're taking seven minutes.

[00:01:01] Speaker 05:
Is that correct?

[00:01:02] Speaker 01:
Yes, Your Honor, and I'll be speaking on the merits of Mr. Gordado's constitutional claims for those seven minutes.

[00:01:07] Speaker 05:
Okay.

[00:01:07] Speaker 05:
Sometimes we get a little off point, so when you say on the merits, what do you mean?

[00:01:12] Speaker 01:
On his first and 14th amendment claims.

[00:01:14] Speaker 05:
Okay, and then Katherine Kreitzberg is speaking second for eight minutes.

[00:01:20] Speaker 05:
Now, eight minutes is your total time, so I'm told that you want to reserve four for rebuttal, and you'll be handling all of the rebuttal, is that correct?

[00:01:31] Speaker 05:
Yes.

[00:01:31] Speaker 05:
All right, so you're not going to be doing any rebuttal, Ms.

[00:01:33] Speaker 05:
Spath, is that correct?

[00:01:34] Speaker 05:
Yes, Your Honor.

[00:01:37] Speaker 05:
And so I will try to, the clock, it is your responsibility to keep track of the time, but as I said, I'll try to assist you on that particular point.

[00:01:47] Speaker 05:
And then Ms.

[00:01:49] Speaker 05:
Whalen is for the department, correct?

[00:01:52] Speaker 05:
And you have 15 minutes total.

[00:01:54] Speaker 05:
Okay, so having all of that in mind, we are ready to proceed.

[00:02:01] Speaker 05:
Is your, I noticed that Mr. Guardado is no longer in custody.

[00:02:07] Speaker 05:
Is he present here today?

[00:02:08] Speaker 01:
He's not, Your Honor.

[00:02:10] Speaker 05:
Okay.

[00:02:11] Speaker 05:
All right.

[00:02:11] Speaker 05:
Go ahead and state your appearance and we're ready to proceed.

[00:02:14] Speaker 05:
Thank you.

[00:02:15] Speaker 01:
Good morning, Your Honors, and may it please the court.

[00:02:17] Speaker 01:
Elizabeth Spath for Appellant Ernest Guardado.

[00:02:19] Speaker 01:
I'll be speaking on Mr. Guardado's first and 14th amendment claims, and my colleague, Katherine Kreitzberg, will be speaking on the issue of qualified immunity.

[00:02:27] Speaker 01:
And again, we would like to reserve four minutes for rebuttal.

[00:02:31] Speaker 01:
Ernest Gordado's Native American faith offered him both solace and community while he was in prison.

[00:02:37] Speaker 01:
Then, without explanation, the Nevada Department of Corrections and DOC took away his ability to actually practice it.

[00:02:45] Speaker 01:
In 2017, the department began strictly enforcing AR 810.3, conditioning access to Native American religious ceremonies on the basis of ethnicity.

[00:02:56] Speaker 01:
As the district court found,

[00:02:58] Speaker 01:
NDOC began intentionally discriminating against Mr. Gordado on the basis of his race in contravention of his right to equal protection of the law.

[00:03:07] Speaker 01:
In accordance with the district court's finding that A10.3 is a racial classification, this court should apply strict scrutiny to the policy under Johnson, a standard that the district court already determined that it cannot meet under its Arlupa analysis.

[00:03:22] Speaker 01:
In the alternative,

[00:03:23] Speaker 01:
Even if this court disagrees with the district court that A10.3 classifies inmates on the basis of race, it still imposes an impermissible burden on Mr. Guardado's constitutional right to free exercise under Turner.

[00:03:37] Speaker 01:
As the district court determined... Can I ask you a question, please?

[00:03:41] Speaker 05:
Are they presently enforcing this regulation?

[00:03:45] Speaker 01:
Well, the Nevada Supreme Court ruled in 2019 that this policy is unconstitutional, but there's nothing in the record to suggest that NDOC has since changed it since that decision.

[00:03:55] Speaker 01:
And yes, so NDOC obviously continues defending it to this day.

[00:04:02] Speaker 05:
All right.

[00:04:02] Speaker 05:
Thank you.

[00:04:03] Speaker 01:
Yes.

[00:04:04] Speaker 01:
I'll first turn to Mr. Cordata's 14th Amendment claim under Johnson.

[00:04:08] Speaker 01:
The district court committed reversible error by failing to apply strict scrutiny to Mr. Cordata's constitutional claims.

[00:04:14] Speaker 01:
after finding that 810.3 constituted an impermissible racial classification.

[00:04:19] Speaker 01:
That's at ER 19.

[00:04:21] Speaker 01:
The Supreme Court held in Johnson v. California that constitutional challenges to racial classifications in prison trigger strict scrutiny.

[00:04:29] Speaker 01:
There the court noted, we have, quote, never applied Turner to racial classifications.

[00:04:35] Speaker 01:
This court should reverse and remand for judgment in Mr. Gordado's favor, where the district court already held that A10.3 cannot survive the rigorous demands of strict scrutiny.

[00:04:45] Speaker 04:
Let me ask you a question, counsel, on the race-based classification.

[00:04:50] Speaker 04:
If he had been able to show some association with tribal living via written documentation, wouldn't he have qualified?

[00:04:58] Speaker 01:
Well, the record does not indicate that that option was available to Mr. Guardado.

[00:05:03] Speaker 04:
Well, it's explicit in the language of 810.2.

[00:05:07] Speaker 01:
Yes, Your Honor, but Mr. Guardado himself couldn't provide proof of tribal living.

[00:05:12] Speaker 01:
So for him, this test turned exclusively on his ethnicity.

[00:05:16] Speaker 03:
Does the rule apply to everyone independent of ethnicity?

[00:05:23] Speaker 01:
Yes, this policy applied to all those who wanted to practice Native American religion in this particular prison.

[00:05:29] Speaker 03:
So it's independent of race or heritage?

[00:05:32] Speaker 01:
Well, no, Your Honor, because by its terms, A10.3 explicitly uses ethnicity as the defining criteria.

[00:05:37] Speaker 03:
But everyone would have to show these elements.

[00:05:40] Speaker 03:
And one person wanted to participate, but have to show the same thing independent of that person's ethnicity, correct?

[00:05:47] Speaker 01:
Well, yes, they would have to provide proof of their native ethnicity.

[00:05:51] Speaker 03:
Or affiliation.

[00:05:53] Speaker 01:
Yes, Your Honor.

[00:05:54] Speaker 04:
It's enrollment in the tribe or association with tribal living, right?

[00:06:00] Speaker 04:
So the regulation itself, the text of the regulation doesn't draw any racial classification.

[00:06:07] Speaker 04:
You're saying that it's the application to him because he's not Native American.

[00:06:11] Speaker 04:
Is that the argument?

[00:06:12] Speaker 01:
No, Your Honor, we're arguing that by its terms, this imposes a racial classification.

[00:06:16] Speaker 01:
I think here it's helpful to think of two hypothetical inmates who both don't meet the criteria of A, B, and C. And for those two inmates, which this was Mr. Guardado's case, the test turns exclusively on the ethnicity of the individual.

[00:06:30] Speaker 01:
That's what the district court found here.

[00:06:31] Speaker 01:
That's what the Nevada Supreme Court found in Keighley.

[00:06:34] Speaker 01:
And that's what the Fourth Circuit found in a similar policy in Morrison, that all of those

[00:06:40] Speaker 01:
policies classify inmates on the basis of their race.

[00:06:45] Speaker 01:
But I would like to reiterate here, Your Honors, that even if this court disagrees that 810.3 is a racial classification, this policy still cannot pass constitutional muster under Turner.

[00:06:56] Speaker 01:
Under that standard, a prison policy that burdens an inmate's constitutional rights must be reasonably related to legitimate penological interests under a four-factor test.

[00:07:05] Speaker 01:
The alternatives available to Mr. Gordado, the alternatives available to NDOC,

[00:07:09] Speaker 01:
any pernicious impact on prison resources, and whether there exists a valid connection between this policy and NDOC's justification for it.

[00:07:17] Speaker 01:
The Nevada Supreme Court condemned this exact policy underturner, and the Fourth Circuit condemned a similar policy underturner as well.

[00:07:24] Speaker 01:
And I would like to emphasize that because we are at the summary judgment stage, NDOC has the burden of proving the absence of a genuine dispute of fact on these factors.

[00:07:34] Speaker 01:
First, NDOT cannot prove as a matter of law that there exists a valid rational connection between this policy and NDOT's main justification for it, safety.

[00:07:44] Speaker 01:
I'll let the words of the district court speak for themselves here.

[00:07:48] Speaker 01:
At ER 14, the district court noted, quote, put simply, defendants fail to identify even one actual instance of sweat lodge destruction or inmate violence in support of a quote unquote compelling interest.

[00:08:01] Speaker 01:
Second,

[00:08:01] Speaker 01:
NDOT cannot prove as a matter of law that there exists an alternative means of free exercise for Mr. Gordado.

[00:08:07] Speaker 01:
In Ward v. Walsh, this court expressly rejected private prayer in one cell as an available alternative.

[00:08:14] Speaker 05:
So in the district court, you lost on the Turner factors.

[00:08:17] Speaker 05:
You were obviously arguing that it should be Johnson.

[00:08:20] Speaker 05:
And under Johnson, they did not put on any evidence of tailoring, correct?

[00:08:31] Speaker 01:
So your honor, while the district court found this was a racial classification, it actually didn't apply Johnson to that finding.

[00:08:37] Speaker 01:
It instead analyzed it under Turner.

[00:08:39] Speaker 01:
But under its ARLUPA analysis, which Mr. Gordado prevailed under, which is also a strict scrutiny analysis, they found that NDOC's reasons weren't compelling or that this policy wasn't narrowly tailored.

[00:08:52] Speaker 01:
Third, NDOT cannot prove as a matter of law that it does not have available alternatives.

[00:08:57] Speaker 01:
The district court determined that NDOT did not actually consider and reject alternatives before imposing this regulation.

[00:09:02] Speaker 01:
That's at ER 15.

[00:09:03] Speaker 01:
And as we note in our opening brief at pages 43 and 44, Montana and Idaho opened native religious practice to all.

[00:09:11] Speaker 01:
NDOT actually did as well prior to 2017.

[00:09:14] Speaker 01:
And the summary judgment record does not indicate that there were any problems associated with this prior policy.

[00:09:20] Speaker 01:
Opposing counsel cites no instance of a court looking at this or a similar policy and determining it to be constitutional.

[00:09:26] Speaker 01:
Every court we have found has concluded to the contrary.

[00:09:29] Speaker 01:
Thank you.

[00:09:39] Speaker 03:
Thank you, Ms.

[00:09:39] Speaker 03:
Bates.

[00:09:41] Speaker 00:
Good morning.

[00:09:42] Speaker 00:
Good morning, Your Honors.

[00:09:44] Speaker 00:
Catherine Kreitzberg for Appellant Ernest Gordato.

[00:09:47] Speaker 00:
May it please the court.

[00:09:48] Speaker 00:
This is a case where prison officials dictated who qualifies as a genuine member of a religious minority.

[00:09:55] Speaker 00:
Appellees banned Mr. Guardado from worshiping in line with his sincerely held religious beliefs because, as appellees argue in briefing, prison officials decided his religion was really someone else's.

[00:10:08] Speaker 00:
Mr. Guardado was banned for worship because he could not prove to the officials he was of the right ethnicity.

[00:10:14] Speaker 00:
Qualified immunity cannot bar damages in this case.

[00:10:17] Speaker 00:
Together, fundamental constitutional principles and a consensus of on-point authority made it so that officials should have known better than to use ancestry as a process.

[00:10:27] Speaker 05:
Well, if we're struggling with whether it violated a racial classification, whether it was treating a religion differently, what out there really clearly establishes this?

[00:10:40] Speaker 05:
If we're all struggling with it, how is it supposed to be obvious to the prison officials that

[00:10:47] Speaker 05:
what they were doing was wrong.

[00:10:49] Speaker 00:
Well, Your Honor, as this court said in Ward versus Walsh, the freedom to exercise the faith that moves one's conscience is a First Amendment right, and it's fundamental to the First Amendment.

[00:10:58] Speaker 00:
And so in this case, prison officials should have known better from those basic principles and this court's admonition in Ward versus Walsh that government officials are not allowed to dictate beyond sincerity

[00:11:09] Speaker 00:
who is allowed to qualify as a member of a religious minority and who should be able to access worship.

[00:11:16] Speaker 00:
So because Mr. Guardado's beliefs were sincerely held, he should have been able to access.

[00:11:20] Speaker 05:
He was a Wiccan for some time before, right, and then they're allowed to change every year.

[00:11:26] Speaker 05:
Is that the situation?

[00:11:28] Speaker 00:
Well, Your Honor, before prison, Mr. Guardado always practiced indigenous faiths, but when they started enforcing AR 810.3, Mr. Guardado was forced to continue to register as a Wiccan in order to access the sweat lodge, but he still was not allowed to worship with other Native American practitioners.

[00:11:45] Speaker 00:
And when he requested the ability to change his affiliation to Native American so he could access the sweat lodge with other sincere believers of his faith,

[00:11:53] Speaker 00:
ENDOC said because he could not prove ethnicity, he would not be allowed to access the grounds as a Native American practitioner.

[00:12:01] Speaker 03:
Part of what you rely on is Keighley, correct, the Nevada Supreme Court's decision?

[00:12:05] Speaker 00:
Well, Your Honor, Keighley is illustrative of how other courts have decided the issue under the 14th Amendment.

[00:12:10] Speaker 03:
But so, your position, what is your position as to the force of Keighley given that it's unpublished?

[00:12:17] Speaker 00:
So, Your Honor, our position is that the Quile court, as I stated earlier, is illustrative of how other courts have decided this under the 14th Amendment, free exercise and Turner.

[00:12:26] Speaker 00:
And to the extent that Mr. Guardado disputed in earlier briefing that the NDOC officials complied with the district court's preliminary injunction and there were still injuries after Quile, then it may be instructive.

[00:12:37] Speaker 00:
But ultimately, Honor, what we rely on is those constitutional principles mentioned earlier and also four cases that create a consensus of persuasive authority.

[00:12:47] Speaker 00:
These cases are all factually indistinguishable in the sense that they all were conditioning access to free exercise based on Native American affiliation in prison.

[00:12:58] Speaker 00:
That was the Fourth Circuit in Morrison.

[00:12:59] Speaker 00:
That was the Eastern District of Virginia in Mitchell, Western District of Louisiana in Combs, and Brown from North Dakota.

[00:13:09] Speaker 00:
And these are important because they are unanimous on the constitutional issue with

[00:13:14] Speaker 00:
The Supreme Court found in Wilson v. Lane is helpful to understand whether or not a right is clearly established.

[00:13:20] Speaker 00:
They're also long established in the sense that none of these cases have been challenged since the 23 years after Morrison has come down.

[00:13:28] Speaker 05:
So you're claiming even though your client is no longer in custody, is that correct?

[00:13:32] Speaker 00:
Yes, Your Honor.

[00:13:33] Speaker 05:
So it's not moot, though, however?

[00:13:35] Speaker 00:
No, Your Honor, because he's asking for damages under Section 1983.

[00:13:39] Speaker 05:
So if he gets $1 of damages, then he gets attorney's fees?

[00:13:43] Speaker 05:
Is that what we're talking about?

[00:13:44] Speaker 00:
That is my understanding, Your Honor.

[00:13:47] Speaker 00:
OK.

[00:13:47] Speaker 00:
So I see I'm out of time.

[00:13:49] Speaker 00:
We ask that this court reverse the lower court's decision on the constitutional claims and remand for entry of judgment in our client's favor.

[00:13:55] Speaker 00:
But in the alternative, Your Honors, we ask for a reversal in the merits and remands of the district where it can decide qualified immunity in the first instance.

[00:14:01] Speaker 03:
Thank you.

[00:14:02] Speaker 03:
Thank you, Ms.

[00:14:02] Speaker 03:
Gretzberg.

[00:14:20] Speaker 02:
Good morning.

[00:14:22] Speaker 02:
Good morning.

[00:14:22] Speaker 02:
Jessica Whalen here on behalf of Respondent Nevada Department of Corrections and may it please the court.

[00:14:30] Speaker 02:
Typically, when I argue for a respondent, I start out stating something like, this is a simple case.

[00:14:35] Speaker 02:
The district court got it right and here's why.

[00:14:38] Speaker 02:
And while the district court did get it right here, this is anything but a simple case.

[00:14:42] Speaker 02:
My friends on the other side would like it to be.

[00:14:45] Speaker 02:
If a prison policy implicates race, then strict scrutiny applies.

[00:14:49] Speaker 02:
But that's not what Johnson versus California says.

[00:14:52] Speaker 02:
Rather, Johnson instructs that all racial classifications imposed by the government must be analyzed under strict scrutiny.

[00:15:00] Speaker 05:
Well, I agree with you that it's not quite as simple that it's just straight race because technically there can be people that if they show they live on the reservation that they could still be entitled to worship, right?

[00:15:13] Speaker 05:
But they have to.

[00:15:14] Speaker 05:
So there's nothing exactly like this.

[00:15:17] Speaker 05:
But on the other hand,

[00:15:20] Speaker 05:
This regulation is different than any of the other religions that they have to show some sort of membership.

[00:15:28] Speaker 05:
The others, they can just say, hey, I believe that, right?

[00:15:31] Speaker 02:
It is different, Judge Callahan, and the reason being is because of the unique heritage of Native Americans and the unique history that Native Americans have had in this country.

[00:15:41] Speaker 02:
And so what NDOC has done,

[00:15:44] Speaker 02:
is instead of imposing its own classification, it defers to both federal law and the Nevada Indian Commission, the NIC, which have laid out what has to be in place for a person to qualify as Native American.

[00:16:00] Speaker 02:
And one of those bases is ethnicity, right?

[00:16:04] Speaker 02:
If you can show Native American lineage, then you are granted certain rights under federal law, and if you are a prisoner in NDOC.

[00:16:14] Speaker 02:
The others, however, as Judge Winn, you pointed out, are credible association with a tribe or tribal living.

[00:16:22] Speaker 02:
And so that is not an expressly ethnic

[00:16:26] Speaker 02:
It's not an expressed ethnic classification unless the tribes themselves have those ethnic requirements.

[00:16:35] Speaker 02:
And so it's not NDOC imposing a classification.

[00:16:38] Speaker 02:
It's NDOC deferring to a tribe as to who is permitted to practice that religion.

[00:16:44] Speaker 05:
But none of the other religions have to show anything, right?

[00:16:47] Speaker 05:
You just have to say, that's what I believe, right?

[00:16:50] Speaker 02:
Well, respectfully, it has to be a sincere religious belief.

[00:16:53] Speaker 05:
Well, but even the courts aren't, if you say it's sincere, judges have been criticized, like say for example, since he was a Wiccan for quite a few years and then he decides he wants to go to the sweat lodge and all of that.

[00:17:08] Speaker 05:
If he says, this is what I believe, you can't really question that as a judge, right?

[00:17:14] Speaker 02:
That's correct.

[00:17:15] Speaker 02:
Courts really should not.

[00:17:16] Speaker 05:
Have been pretty skeptical of that kind of questioning.

[00:17:19] Speaker 02:
Yes, the US Supreme Court has admonished courts in the past for challenging sincere religious beliefs beyond very obvious evidence.

[00:17:27] Speaker 05:
So are you just, are you trying to, obviously the district court had an injunction, right?

[00:17:32] Speaker 05:
Correct.

[00:17:33] Speaker 05:
And they didn't, no one's really appealed that, that I don't, but are you going to enforce this if you went on qualified immunity here?

[00:17:43] Speaker 02:
So this, what happened in the district court is the district court granted Mr. Gordado's summary judgment motion on the RLUPA action specific to him.

[00:17:55] Speaker 02:
NDOC has not appealed that and while this isn't really something I can rely on because it's not in the record, having spoken to my client, they are in the process of amending AR 810.3 to comply with the RLUPA decision.

[00:18:09] Speaker 02:
And once that is finalized, it's very possible that that could moot the remaining claims of Mr. Guardado.

[00:18:17] Speaker 02:
But again, that's not finalized yet, so I can't.

[00:18:18] Speaker 05:
Well, I guess in terms of I'm just trying to think what this court has to do.

[00:18:22] Speaker 05:
Let's just say hypothetically, and it's only hypothetically because we have not conferenced on this.

[00:18:27] Speaker 05:
Let's just say that we think that there was some sort of constitutional violation.

[00:18:32] Speaker 05:
Maybe it wasn't race.

[00:18:33] Speaker 05:
Maybe it was based on religion that you put restrictions on this religion that he was treated differently because it was that particular religion.

[00:18:42] Speaker 05:
But hypothetically, let's say we found that it wasn't clearly established.

[00:18:50] Speaker 05:
Do we have to publish on this and say what the violation was so that you don't keep violating?

[00:18:55] Speaker 05:
Or what if I think it was race and someone else thinks it was religion or whatever, but we all agree it wasn't clearly established?

[00:19:05] Speaker 05:
But we all agree you shouldn't keep doing it.

[00:19:07] Speaker 05:
How do we accomplish that?

[00:19:08] Speaker 05:
Do we have to do a published opinion to say you violated some constitutional rights, but it wasn't clearly established?

[00:19:16] Speaker 02:
I don't know that you have to do a published opinion.

[00:19:18] Speaker 02:
You certainly could to provide clarity for future government actors, because NDOC wants to do things correctly moving forward, and it would advise other states in the ninth as well.

[00:19:30] Speaker 02:
But I think the best thing to do probably is what this court did in the Shakur case, which is remand for further consideration if it thinks that the analysis isn't completely clear.

[00:19:42] Speaker 02:
So I think the court has a few options.

[00:19:44] Speaker 02:
if you believe that there was no violation and the district court's analysis is sufficient.

[00:19:52] Speaker 02:
You can reverse and remand for further consideration of Turner factors if you think it's not clear.

[00:19:58] Speaker 02:
And then if you think Johnson applies, I think you clearly need to remand because there was no consideration.

[00:20:03] Speaker 05:
If you didn't defend it, you didn't put anything on that it was narrowly tailored.

[00:20:07] Speaker 05:
You didn't.

[00:20:08] Speaker 05:
Correct.

[00:20:09] Speaker 05:
We argued strictly that Turner replied.

[00:20:13] Speaker 04:
Let's assume that we agree with you that it's really the Turner analysis.

[00:20:17] Speaker 04:
I'm really confused about the penological interest here because there is a proffer by

[00:20:26] Speaker 04:
NDOC of a crime deterrence goal and associating that with the possession of eagle feathers.

[00:20:33] Speaker 04:
Can you clarify for me what the concern is about the possession of the feathers?

[00:20:38] Speaker 02:
Sure.

[00:20:38] Speaker 02:
So there are, I think, three interests that NDOC has argued, and this would apply to me, I think, the compelling interest or the Lesser Turner legitimate penological interest.

[00:20:51] Speaker 02:
And they all sort of stem from

[00:20:53] Speaker 02:
the eagle feather possession.

[00:20:56] Speaker 02:
Under federal law, you have to obtain a certificate from the Bureau of Indian Affairs to be able to possess eagle feathers or parts.

[00:21:06] Speaker 02:
Now, eagle feathers can be used in NDOC sweat lodge ceremonies, communal ceremonies.

[00:21:12] Speaker 02:
And if non-natives who are not entitled to possession of eagle parts are permitted to be at these ceremonies, there's a

[00:21:21] Speaker 02:
increased likelihood that NDOT could be subject to liability under federal law.

[00:21:26] Speaker 03:
Well, couldn't somebody, couldn't a non-native American qualify under one of the provisions of the regulations and then be present?

[00:21:34] Speaker 02:
I don't believe for purposes of the, and I can't remember the name of the federal act, but the federal act that prohibits any non-native from obtaining eagle feathers, I believe that there is a lineage requirement under federal law.

[00:21:48] Speaker 03:
There's not a lineage requirement to have access to participate as long as you show tribal affiliation.

[00:21:56] Speaker 02:
That's correct.

[00:21:57] Speaker 02:
Judge Cronstedt.

[00:21:58] Speaker 03:
So why would the regulation then be effective in terms of this preventing violation of the law concerning possession of eagle feathers?

[00:22:07] Speaker 02:
I do see the dilemma.

[00:22:08] Speaker 02:
So if there was someone who was accepted into a tribe but didn't have the lineage, then they would not be able to obtain the eagle feathers as well.

[00:22:16] Speaker 02:
That's a complication of this case, certainly, and something that I had not thought about until today.

[00:22:23] Speaker 04:
I think that's why your proffer of penological interest becomes very muddled, because I thought the way that the case was briefed and argued that it had to do with some sort of

[00:22:32] Speaker 04:
safety concern, a crime deterrence.

[00:22:34] Speaker 04:
And so I'm like, what is the concern here?

[00:22:37] Speaker 04:
Knowing that it is against the law to possess it if you're not entitled to have it, that's a totally separate issue.

[00:22:46] Speaker 04:
So today I'm hearing that it really is a concern for exposure of end doctors, some sort of liability, which is very different than the way the issue was presented.

[00:22:56] Speaker 04:
Below and in the briefing here as well, see, I didn't get that point.

[00:23:00] Speaker 02:
Well, I do want to go on to the second two concerns, compelling interests, that I think flow from the possession of eagle feathers.

[00:23:07] Speaker 02:
And one of those is a safety or security interest.

[00:23:11] Speaker 05:
Because... What, are you going to stab people with an eagle feather?

[00:23:15] Speaker 05:
I mean, it didn't seem like the government did a very good job of showing how all of this would be really a problem for keeping control in the prisons.

[00:23:27] Speaker 02:
I think the court need look no further than the Maui decision.

[00:23:31] Speaker 02:
where a Native inmate brought a lawsuit claiming that the allowing of non-Native, this is before the regulation was amended to restrict access to sweat lodge ceremonies to only Native inmates or people who can show affiliation.

[00:23:51] Speaker 02:
And in Maui, a Native prisoner sued NDOC because NDOC had allowed protective custody inmates, most of whom were not Native,

[00:24:00] Speaker 02:
to desecrate the sacred sweat lodge grounds.

[00:24:03] Speaker 02:
And so, ENDOC's sort of stuck in between a rock and a hard place where if it allows non-native inmates, it can be subject to claims of desecration and potential security and safety interests, violence from other inmates.

[00:24:19] Speaker 02:
Whereas if it doesn't, then it's subject to potential federal liability and claims of the type that Mr. Gordado is bringing.

[00:24:27] Speaker 03:
Given that the defense that was presented in Maui, that we all were permitted to attend, and that was defended by the Nevada Bureau of Prisons, correct?

[00:24:36] Speaker 03:
Correct.

[00:24:39] Speaker 03:
Why wouldn't that reflect then that this was a well-established principle based on what the defendant did there?

[00:24:48] Speaker 02:
Well, I think it was the court in Maui that said it's actually not clear under the law whether this is a clearly established right or not.

[00:25:01] Speaker 03:
But the advocate, the Nevada, advocated for that position, didn't it?

[00:25:07] Speaker 02:
It did, and I think that just shows the range of deference that should be permitted to prison officials.

[00:25:13] Speaker 02:
So prison officials were entitled to have a policy where other inmates could attend, non-native, and they're also entitled if they then determine that actually this is going to cause us administrative and security problems to then change that policy.

[00:25:29] Speaker 02:
So there's wide discretion given to prison officials to deal with these sort of complicated issues under Turner.

[00:25:38] Speaker 02:
What?

[00:25:40] Speaker 02:
I do want to turn, unless there's other questions, I want to turn to qualified immunity, because I think that is an alternate grounds that this court can affirm on.

[00:25:47] Speaker 02:
And qualified immunity asks first whether there was a constitutional violation, which we submit there wasn't.

[00:25:54] Speaker 02:
But if the court finds that there was,

[00:25:56] Speaker 02:
it has to also find that the right was clearly established.

[00:26:00] Speaker 02:
And the burden of proving whether a right was clearly established falls on the non-governmental party here, Mr. Guardado.

[00:26:07] Speaker 02:
Mr. Guardado cites to no circuit case law to show the right of non-natives to practice native religion was clearly established at the time of the alleged violation.

[00:26:16] Speaker 02:
Instead, he cites to an unpublished Nevada Supreme Court decision, Kili, from 2019, and the unpublished District of Nevada decision in Maui.

[00:26:26] Speaker 02:
So, Kelly, as I mentioned, it's a 2019 case.

[00:26:29] Speaker 02:
It came out after the allegedly unconstitutional conduct.

[00:26:33] Speaker 02:
Mr. Gordado's complaint was filed in 2018 and alleged unconstitutional conduct in 2017.

[00:26:40] Speaker 02:
And, as I stated, Maui actually says that the state of the law regarding the forced exclusion of non-Indian persons from Indian religious ceremonies is not entirely clear.

[00:26:52] Speaker 02:
My friend on the other side notes that Mr. Gordado relies on constitutional principles, which isn't enough.

[00:26:59] Speaker 02:
The Supreme Court's been very clear on that.

[00:27:01] Speaker 02:
If you could simply rely on the First Amendment to say this right was clearly established, then qualified immunity would be null and void.

[00:27:09] Speaker 02:
The only persuasive authority that's cited is one out of circuit case and three district court decisions from out of circuit, and that's simply not enough to put defendants on notice that they should be afforded qualified immunity.

[00:27:25] Speaker 02:
The other thing I want to note is that with respect to the alternatives that Mr. Wardato had, my friend on the other side pointed out the fact that he claimed Wiccan religion so that he could access the sweat lodge.

[00:27:40] Speaker 02:
But the regulations have also been amended to allow a solitary practitioner to access the sweat lodge, which could be a viable alternative to Mr. Wardato here.

[00:27:52] Speaker 02:
Judge Callahan, as you noted, Mr. Gordado is no longer in custody, so his injunctive relief here that he is claiming is moot.

[00:28:01] Speaker 02:
It's only the claim for damages under the Constitution that survives.

[00:28:07] Speaker 02:
I would just note that there would be no prejudice in this court remanding for further consideration if it finds that the record is not sufficiently developed on either the Turner factors or under the Johnson standard.

[00:28:20] Speaker 02:
If there are no further questions, I'll cede the remainder.

[00:28:22] Speaker 03:
Could you just go back one moment, please, Ms.

[00:28:25] Speaker 03:
Whelan, to the colloquy we had about the Bureau of Prisons position and when it defended the prior version of the regulation.

[00:28:32] Speaker 03:
In the context of qualified immunity, when the very party has addressed it, and it was an equal protection issue as well as a First Amendment issue, but allowing all to go out was defended.

[00:28:48] Speaker 03:
But now you're saying that's not clearly established.

[00:28:52] Speaker 03:
as to this party, even though that party advocated for that position.

[00:28:58] Speaker 02:
Yes.

[00:29:02] Speaker 02:
I guess what I would say is in Turner, as I mentioned, there's the wide discretion of the department.

[00:29:12] Speaker 02:
And as Turner stated, that subjecting the day-to-day judgments of prison officials to

[00:29:19] Speaker 02:
you know, to inflexible strict scrutiny analysis, it would hamper its ability to anticipate security concerns.

[00:29:25] Speaker 02:
And so the fact that, I think the fact that Maui was brought at all may be raised in prison officials' minds, this is an issue we need to switch up what we're doing.

[00:29:37] Speaker 02:
And so there's no case that says prison officials can't amend their regulations, can't amend their policies to be flexible in addressing these concerns.

[00:29:47] Speaker 03:
Thank you.

[00:29:47] Speaker 05:
All right, thank you for your argument.

[00:30:09] Speaker 00:
May it please the court.

[00:30:10] Speaker 00:
Your Honors, I'd just like to address three different concerns that my friend on the other side raised during argument for the state.

[00:30:17] Speaker 00:
The first is that whether the policy is based on federal definitions of Indian identity.

[00:30:22] Speaker 00:
My friend on the other side says that the AR 810.3 mimics federal statutes.

[00:30:27] Speaker 00:
And that's not true, in fact.

[00:30:29] Speaker 00:
In fact, in briefing, opposing counsel cited only the Grave Repatriation Act and the Indian Education Act.

[00:30:37] Speaker 00:
neither of which map onto the standards for Native American worship that are expressed in ARI 10.3, especially the requirement that there needs to be ethnicity to show access to Native worship.

[00:30:49] Speaker 00:
The second is two questions under whether the policy actually advances the stated interest of NDOC.

[00:30:55] Speaker 00:
So first I'd like to address the concerns surrounding eagle feathers.

[00:30:59] Speaker 00:
Opposing counsel

[00:31:00] Speaker 00:
stated that all that needs to be shown in order to access eagle feathers is native lineage.

[00:31:05] Speaker 00:
And that's not true.

[00:31:06] Speaker 00:
Under the Bald Eagle Protection Act, somebody has to be able to show the BIA that they have tribal enrollment in order to access the eagle feathers.

[00:31:15] Speaker 00:
And that shows that the ARH 10.3 is actually under-inclusive.

[00:31:19] Speaker 00:
If it were true that the policy were designed to prevent non-tribal members from possessing eagle feathers, then the policy would not allow those to access native worship who could only meet B, C, or D, and especially D, because none of them require proof of tribal enrollment.

[00:31:34] Speaker 00:
The second security risk that's highlighted by opposing counsel.

[00:31:38] Speaker 00:
Again, I'd like to note that under Turner itself, officials should have been put on notice that they had to offer more than merely speculative evidence, which the district found to be nothing more than impermissible hearsay.

[00:31:48] Speaker 00:
as to why there may be an issue for violence that occurs in the prison.

[00:31:53] Speaker 00:
So Turner itself says that that's not enough.

[00:31:55] Speaker 00:
And finally, Your Honors, ultimately this is a right to worship in line with sincerely held religious belief absent a justified and proven carceral interest.

[00:32:06] Speaker 00:
Opposing counsel has been able to show nothing that satisfies the Turner requirements and

[00:32:12] Speaker 00:
I'd like to note that there are four cases outside of Quile and outside of Maui that had analyzed these policies conditioning access to native worship on ethnicity or tribal affiliation.

[00:32:24] Speaker 00:
And each of them found that this constituted an impermissible racial classification and that safety and security interests were not able to meet the requirements of even Turner deference.

[00:32:35] Speaker 00:
Again, that is another circuit court.

[00:32:38] Speaker 00:
That's the Fourth Circuit as early as 2001 in Morrison v. Garrity, and that's three different district courts in different jurisdictions across this country that go all the way back to 1997.

[00:32:48] Speaker 05:
So would those other circuit and district courts make it clearly established?

[00:32:53] Speaker 00:
Yes, Your Honor, in line with the constitutional principles that you have the right to worship in prison in line with your sincerely held religious beliefs.

[00:33:00] Speaker 05:
So what's your best Supreme Court case, and what's your best Ninth Circuit case?

[00:33:04] Speaker 00:
Your Honor, that would be Thomas versus Review Board, which is quoted in Ward versus Walsh and is also quoted in each of the cases.

[00:33:11] Speaker 00:
that have decided a similar policy, which states that you have the ability in prison to practice in line with your sincerely held religious beliefs, the religion of your choosing.

[00:33:19] Speaker 05:
Well, the Supreme Court has cautioned the Ninth Circuit many times not to define these too broadly, that there is sort of a fact-specific type of thing.

[00:33:27] Speaker 05:
And this does have a lot of unique facts.

[00:33:30] Speaker 05:
So the fact that we're talking about all of this and it's a little bit confusing, I'm wondering how a correctional officer would know this.

[00:33:40] Speaker 00:
Well, Your Honor, based on those principles and the four cases that are unanimous, which I think is important because there is nothing out there, no precedent that should have confused any officer whether or not these rights actually existed.

[00:33:53] Speaker 00:
But additionally, Your Honor, this was the position that was held by the Nevada Department of Corrections as early as 2009 in the Maui case, which at least goes to show that as early as 2009, NDOC, which cited each of those cases that we offer as part of the persuasive authority,

[00:34:09] Speaker 00:
believed that this was not constitutional.

[00:34:13] Speaker 00:
So for that reason, Your Honors, we ask at the very least you rule on the constitutional merits.

[00:34:17] Speaker 05:
Thank you.

[00:34:17] Speaker 05:
Thank you for your argument, both sides.

[00:34:20] Speaker 03:
Thank you.

[00:34:22] Speaker 05:
Mr. Price, can you approach the bench for a second, please?

[00:34:31] Speaker 05:
I need to take a short recess.

[00:34:33] Speaker 05:
My computer's going a little nuts, and I need you to send back my law clerk that's sitting on the front left, David Fox, back here.

[00:34:41] Speaker 05:
Okay.

[00:34:43] Speaker 05:
While the next case is being, we're going to call the next case United States of America versus ISPON-COPAS 22-10328.

[00:34:50] Speaker 05:
The court's going to just take a short recess.

[00:34:55] Speaker 05:
I'm having a little computer issue, and we'll be right back out.

[00:34:58] Speaker 05:
Thank you.