BY LINDA SATTER
Little Rock attorney David Bowden said Monday that he is considering challenging all the way to the U. S. Supreme Court, if necessary, a divided appeals court panel ruling upholding a state prison policy requiring male inmates to cut their hair and trim their beards.
Bowden represented Michael J. Fegans, now in his 50 s, who in late 1991 began serving time in the state Department of Correction for aggravated robbery, second-degree battery and attempted escape.
Fegans started his time in prison as a Baptist but, inspired by radio broadcasts of Jacob O. Meyer, converted to a Christian sect called Assemblies of Yahweh, which requires its members to follow Old Testament law.
In keeping with his new religion, “Fegans eventually concluded that he should follow a kosher diet and refrain from ‘rounding the corners’ of his hair and beard,” said an opinion released Monday by a three-judge panel of the 8 th U. S. Circuit Court of Appeals in St. Louis.
Two of the three judges upheld a ruling by U. S. District Judge James Moody finding that the prison’s grooming policy didn’t violate Fegans’ right to religious freedom because it served compelling state interests and wasn’t more restrictive than necessary to assuage security concerns.
Prison policy requires male inmates to keep their hair length above their ears and no longer than the middle of the nape of the neck in back. It limits facial hair to a “neatly trimmed mustache.” The appellate majority noted that the prison director, Larry Norris, had testified in a nonjury trial over Fegans’ 2003 lawsuit that the facial-hair rule keeps inmates from being able to change their appearance, and that long beards and long hair could be used to hide contraband.
The majority also upheld Moody’s ruling that the prison system’s failure to provide kosher meals for Fegans for a year and a half was unconstitutional, for which he awarded Fegans $ 1, 500 in damages.
In his appeal, Fegans complained that the amount of damages was insufficient, in that it amounted to just $ 1. 44 per meal, and that punitive damages should have been awarded as well. The appeals court disagreed and rejected the argument that the prison violated Fegans’ right to equal protection because it lets female inmates wear their hair shoulder-length.
After the grooming policy became effective on April 20, 1998, Fegans’ refusals to trim his hair and beard resulted in disciplinary sanctions that Bowden said resulted in him being denied “good time” credit, which cost him another seven years in prison.
Bowden said Monday that Fegans is now in federal prison near Memphis, where he isn’t required to cut his hair, regularly receives kosher meals and is even leading a Bible study class.
The majority opinion was written by U. S. Circuit Judge Steven M. Colloton of Des Moines and joined by U. S. Circuit Judge William Jay Riley of Omaha, Neb., while the third member of the panel, U. S. Circuit Judge Michael J. Melloy of Cedar Rapids, Iowa, issued a partial dissent.
Melloy said he believes that the majority gave too much weight to Norris’ testimony justifying the grooming policy. Melloy said that under the Religious Land Use and Institutionalized Persons Act, or RLUIPA, which has existed since 2000, “prison officials have the burden of establishing that their policy is the least restrictive means to achieve a compelling government interest.” Melloy said that, unlike testimony in a 1996 8 th Circuit case, Schriro v. Hamilton, that the panel relied on, he didn’t believe the reasons given were “fully developed.” Citing an earlier 2008 decision out of the 9 th U. S. Circuit Court of Appeals, under Religious Land Use and Institutionalized Persons Act, Melloy said, “Prison officials cannot ‘ justify restrictions on religious exercise by simply citing the need to maintain order and security in a prison. They... must demonstrate that they actually considered and rejected the efficacy of less restrictive measures before adopting the challenged practice.” Bowden said he plans to seek a rehearing before the full 8 th Circuit and, if that fails, will likely appeal to the U. S. Supreme Court.
He noted, “There is a considerable split in the circuits over this issue of grooming.”