Tuesday, May 14, 2019

Sweat Lodge In High Desert

A claim that a state prisoner was denied religious freedom found some favor in the Nevada Supreme Court

David August Kille, Sr., is incarcerated and in protective custody at High Desert State Prison (HDSP), which is operated by Nevada Department of Corrections (NDOC). While incarcerated, Kille filed several grievances with NDOC, arguing that he had been wrongly denied the right to participate in Native American sweat lodge and sacred pipe ceremonies. NDOC denied each grievance, concluding that Kille had no right to participate in the ceremonies because he failed to provide tribal affiliation paperwork or otherwise failed to demonstrate Native American association or ethnicity pursuant to the NDOC's Religious Practice Manual.

He sued and lost in the district court on summary judgment

As to the substance of Kille's equal protection claim, the State does not dispute that Kille is a sincere practitioner of a Native American religion. Therefore, Kille is similarly situated to Native American inmates who wish to engage in sweat lodge and sacred pipe ceremonies. However, the NDOC policy prohibits equal consideration of Kille's request for religious exemptions based solely on his inability to prove Native American association or ethnicity and the State acknowledges that Native American inmates are the only group required to demonstrate association or ethnicity in order to participate in ceremonies. Thus, the policy is facially discriminatory because it imposes differential treatment based on ethnicity or ancestry and, as applied to Kille, denies his right to have his religious request considered equally with those prisoners who can prove Native American heritage. See Morrison, 239 F.3d at 661-62. While safety and security are legitimate penological interests, the State fails to present any evidence that the association or ethnicity requirement is reasonably related to that interest. The State argues that it "provided admissible evidence of actual security concerns and destruction of property rather than hypothetical concerns," but it fails to point to any specific evidence in this regard. Calderin's affidavit stating that he is "familiar that there have been incidents at various institutions where Native American inmates have destroyed their lands or their sweat lodge because they believed it has been desecrated" by non-Native American inmates entering the lands is not sufficient to show that the ethnicity-based policy of denying sweat lodge and sacred pipe ceremony practices is rationally related to the goal of prison safety and security. As explained in Morrison, such evidence, at best demonstrates that some Native Americans at other institutions "were offended by white inmates practicing Native American rituals." 239 F.3d at 661. As the policy is facially discriminatory and is not reasonably related to legitimate penological interests, we conclude that the State's association or ethnicity-based policy violated Kille's equal protection rights.

The case is DAVID AUGUST KILLE, SR. vs. JULIO CALDERIN et al. (Mike Frisch)


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