9th Circuit: Compulsory AA/NA Attendance Unconstitutional

The U.S. Court of Appeals for the Ninth Circuit ruled on Friday that requiring a parolee to attend Alcoholics Anonymous and Narcotics Anonymous meetings as a condition of parole violates the Establishment Clause of the First Amendment to the U.S. Constitution. The case is Inouye v. Kemna (.pdf, 19 pages).

The parolee, who had a long-standing problem with meth addiction, was imprisoned for drug crimes and released on parole in November 2000. In 2001 he was busted for trespassing and tested positive for drug use. At that point his parole officer ordered him into the Salvation Army’s drug treatment program, which mandates attending AA and NA meetings. The parolee complied for awhile, but abandoned the program after a few months. The parole officer had the guy arrested and his parole was ultimately revoked.

The parolee sued the parole officer and other defendants under 42 U.S.C. § 1983, alleging that the PO violated his constitutional rights by requiring him to attend religion-based meetings as a condition of his parole. No one, the defendants included, argued that the PO’s conduct was constitutional. The whole dispute centered on the issue of “qualified immunity.”

It’s long been the law that government officials exercising discretionary functions are immune from liability in Section 1983 cases if  “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (emphasis added). The PO argued, and the trial judge agreed, that although requiring a parolee to attend AA and NA meetings — which emphasize submission to a “higher power” — violates the Establishment Clause, that wasn’t “clearly established” at the time in question.

The court of appeals had no trouble agreeing that the practice at issue violated the First Amendment: “The Hobson’s choice Nanamori offered Inouye — to be imprisoned or to renounce his own religious beliefs — offends the core of Establishment Clause jurisprudence.”

As for the “clearly established” part, the court noted that there was no binding Ninth Circuit or Supreme Court precedent on this specific issue. However, “[b]y 2001, two circuit courts, at least three district courts, and two state supreme courts had all considered whether prisoners or parolees could be forced to attend religion-based treatment programs. Their unanimous conclusion was that such coercion was unconstitutional.” In the Ninth Circuit’s view, that was enough to say that the unconstitutionality of what the PO did in this case was “clearly established” at the time of the offending conduct.

The court held that the PO was not entitled to qualified immunity and remanded the case for trial on “any issues of disputed fact that remain.”

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