Ninth Circuit: Damages Required for Compelled Religious-Based Treatment

by Mark Wilson

The Ninth Circuit Court of Appeals has held that damages are required, as a matter of law, when a parolee is incarcerated for objecting to compelled participation in a religious-based drug treatment program.

Citing “uncommonly well-settled case law,” the Court of Appeals found in 2007 that the First Amendment is violated when the state coerces an individual to attend a religious-based substance abuse program. See: Inouyev.Kemna, 504 F.3d 705 (9th Cir. 2007).

The California Department of Corrections and Rehabilitation (CDCR) contracts with Westcare, a private entity, to provide drug and alcohol treatment for parolees in Northern California. Westcare, in turn, contracts with Empire Recovery Center, a non-profit facility. “Empire uses a 12-step recovery program, developed by Alcoholics Anonymous and Narcotics Anonymous, that includes references to ‘God’ and to ‘higher power.’”

Barry A. Hazle, Jr., an atheist, was incarcerated due to California drug convictions. His parole conditions required him to complete a 90-day residential drug treatment program.

Prior to his February 26, 2007 release from prison, Hazle had asked prison and Westcare officials to place him in a non-religious treatment program. Westcare officials directed Hazle to Empire.

When Hazle realized Empire was a religious-based program, he repeatedly objected to Westcare officials. They responded “that the only alternative to Empire was a treatment facility whose program had an even greater focus on religion.”

Hazle asked parole agent Mitch Crofoot for a transfer to a secular treatment program, and was ordered to remain at Empire while Crofoot looked into the issue.

Westcare claimed that it had no secular programs; Crofoot then informed Hazle that no alternative programs were available and he needed to complete the Empire program or his parole would be revoked and he would return to prison.

On April 6, 2007, Empire informed Crofoot that Hazle was being “disruptive, though in a congenial way,” and that his demeanor was “sort of passive aggressive.” Crofoot and parole supervisor Brenda Wilding were aware of Hazle’s religious objections, but recommended revocation of his parole for refusing to participate in the treatment program. Hazle’s parole was revoked and he was returned to prison for 100 days.

Hazle then sued Westcare and several state officials, alleging they had violated his First Amendment rights by requiring his participation in a 12-step program as a condition of parole, rejecting his requests for a secular program and revoking his parole for refusing to participate in the 12-step program. He sought compensatory damages – for loss of liberty and emotional distress – as well as punitive damages and injunctive relief.

After Hazle filed suit, the CDCR issued a directive in response to Inouye, stating that parolees who refuse to participate in religious-based programs may not be compelled to attend such programs and must “be referred to an alternative non­religious program.”

The district court entered summary judgment against the defendant state officials, finding them liable for violating Hazle’s First Amendment rights. The court granted summary judgment to Westcare, however, holding that “Hazle had not established the necessary causal connection between Westcare’s actions and the violation of his rights.”

A trial was then held to determine damages. The district court informed the jury it had previously found “that each defendant violated plaintiff’s First Amendment Establishment Clause right by ... arresting and incarcerating plaintiff because of [his] failure to participate in the program.”

At the request of the defendants, however, the court instructed the jury to decide if they were jointly and severally liable or whether damages should be apportioned among them. In the latter case, the jury was to apportion damages.

The jury returned a damages verdict finding the defendants were not jointly and severally liable, and awarded Hazle no damages against each defendant.

Hazle moved for a new trial under FRCP 59(a), arguing that the zero damages verdict was contrary to the law and evidence. The district court denied the motion, holding that Hazle had waived his objection by failing to raise it before the jury was discharged, and that the jury’s finding that damages could be apportioned among the defendants was consistent with its finding that none of the defendants had caused Hazle’s constitutional injuries.

The Ninth Circuit reversed, holding that Hazle did not waive his objection and the district court had improperly denied his motion for a new trial.

“The jury’s verdict, which awarded Hazle no compensatory damages at all for his loss of liberty, cannot be upheld,” the Court of Appeals concluded. “Given the indisputable fact of actual injury resulting from Hazle’s unconstitutional imprisonment, and the district judge’s finding that the state defendants were liable for that injury,” the Court held that “an award of compensatory damages was mandatory. The jury simply was not entitled to refuse to award any damages for Hazle’s undisputable – and undisputed – loss of liberty, and its verdict to the contrary must be rejected.”

The district court had also “erred in putting the question of apportionment to the jury in the first place,” the Ninth Circuit wrote. That “is a legal [issue] to be decided by the judge, not the jury.” The jury’s resolution of that issue was “simply inconsistent with the district judge’s order holding defendants liable for Hazle’s false imprisonment.”

In addition, the appellate court reversed the district court’s grant of summary judgment in favor of Westcare, finding “a genuine issue of material fact as to whether Westcare’s policy of contracting solely with religious facilities was a proximate cause of [Hazle’s] constitutional injuries.” The Ninth Circuit noted that “Inouye leaves little room for Westcare to argue that constitutional injuries of the sort suffered by Hazle were not a foreseeable result of its actions.”

Lastly, the Court of Appeals reversed the dismissal of Hazle’s state law claim for injunctive relief to enjoin the CDCR from “carrying on any unlawful actions.” The Court said the facts in this case established “that, notwithstanding the state’s directive [to provide alternative nonreligious programs], the defendants do not appear to have taken any concrete steps to prevent other parolees from suffering the same constitutional violations Hazle suffered.”

The case was reversed and remanded, and remains pending on remand. See: Hazlev.Crofoot, 727 F.3d 983 (9th Cir. 2013).

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