Court Finds PLN’s Rights Violated by Arizona Jail; Case Settles for $15,293

A federal district court in Arizona held that officials at the Pinal County Jail (PCJ) in Florence, Arizona violated Prison Legal News’ First and Fourteenth Amendment rights by censoring PLN publications. The court denied qualified immunity to several of the defendants in their individual capacity and found the county faced municipal liability. The jail changed its mail policy, then agreed to settle the case before trial.

Beginning in February 2011, PLN mailed its monthly publication, an informational brochure pack and the book Protecting Your Health and Safety to prisoners at PCJ. Jail employees were unfamiliar with PLN, and magazines and newspapers had never been delivered to prisoners at the facility.

Despite PLN’s publications not posing any safety or security threat, they were rejected and returned. Several reasons were cited by jail staff, including a blanket ban on magazines and newspapers, a publisher-only rule and a one-page/postcard limitation on correspondence. In many cases, PLN did not receive notice of the rejections and some of its mail was simply destroyed.

Both parties moved for summary judgment. There was no dispute that PCJ’s policy banning all newspapers and magazines violated the First Amendment, which was a clearly established right at the time; therefore, the district court held certain defendants were not entitled to qualified immunity. Specifically, it found that Detention Aides Alyssa Romero, Laurenda Hensley-Salisberry and Cheryl McBirnie had improperly returned or destroyed PLN’s publications.

That those defendants were merely following the orders of supervisory employees did not relieve them of liability. Likewise, the district court found the supervisory staff members were personally involved and faced liability, though command staff were not personally involved and thus were not liable. Although the jail’s policy did not expressly ban newspapers and magazines, it was the practice at PCJ to effect such a ban. As Pinal County had failed to conduct adequate training, it faced liability for the unconstitutional practices of jail employees and for implementing the publisher-only rule.

In a March 20, 2013 order on the parties’ summary judgment motions, the court held that the jail’s publisher-only rule violated PLN’s First Amendment rights. PCJ changed its policy in the wake of the litigation, but its new policy was not much better. The revised policy allowed publications only from “the publisher, a book club, or other approved commercial supplier,” and applied to only four national publishers.

The new policy allowed PLN materials, but it was unclear under what criteria; other non-profits similar to PLN had their publications banned under the revised policy. The district court ordered the defendants to respond further on this issue before it ruled on whether to grant injunctive relief.

The court held the one-page/postcard rule was a constitutional way to reduce the volume of mail at the jail in order to control contraband. It also held the failure to provide PLN with notice of rejection of its publications and an opportunity to appeal violated its Fourteenth Amendment due process rights.

The parties settled the case prior to trial in December 2014, with Pinal County agreeing to pay a total of $15,293 to PLN in damages and attorney fees.

PLN was ably represented by attorneys Ernest Galvan, Sanford Rosen and Blake Thompson with Rosen Bien Galvan and Grunfeld in San Francisco, California; Dan J. Pochoda with the Arizona ACLU; and Human Rights Defense Center general counsel Lance Weber. See: PLN v. Babeu, U.S.D.C. (D. Ariz.), Case No. 2:11-cv-01761-DJH.

During the course of the litigation, Pinal County Sheriff Paul Babeu, named as a defendant in the suit, was running for Congress on an anti-immigration platform when his male lover made public allegations that Babeu had threatened him with deportation if he disclosed that the sheriff, a Republican, was a closeted homosexual. His lover was reportedly an undocumented Mexican immigrant. [See: PLN, April 2013, p.11].

Babeu admitted that he was gay, denied making threats and dropped out of the Congressional race. It turned out that Babeu had posted compromising photos of himself on various gay dating websites. He was overwhelmingly reelected sheriff of Pinal County in 2012, becoming one of the first, if not the first, openly gay Republican sheriffs in the country. A veteran who served in the Army National Guard, during a deposition Babeu acknowledged he had lied under oath while in the military about being gay.

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