United States District Court, District of Columbia
May 22, 2001
BRETT C. KIMBERLIN, ET AL. PLAINTIFFS,
UNITED STATES DEPARTMENT OF JUSTICE, ET AL. DEFENDANTS.
The opinion of the court was delivered by: Emmet G. Sullivan, United States District Judge.
MEMORANDUM OPINION AND ORDER
Brett Kimberlin and Darrell Rice, prison inmates, challenge the
constitutionality of the Bureau of Prisons' ("BOP") ban on electric or
electronic instruments in federal prisons, except those used in
connection with religious activities, and the Zimmer Amendment, section
611 of Pub.L. No. 104-208, 110 Stat. 3009 ("the Amendment"), which bans
federal funding for electric or electronic instruments in federal prisons
but does not by its terms create a religious use exception. Claims 1 and
2 of plaintiffs' complaint allege that BOP violated the Administrative
Procedures Act, 5 U.S.C. § 706 (1996) ("APA"). Claim 3 alleges that
BOP interferes with their First Amendment right to expression through
music and music writing. Finally, Claim 4 alleges that BOP's policy
deprives plaintiffs of their First and Fifth Amendment rights. Plaintiffs
seek declaratory and injunctive relief against BOP.
Pending before the Court are BOP's motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(6), and plaintiffs' motion for summary judgment
pursuant to Fed.R.Civ.P. 56. Subsequent to the filing of these
pleadings, plaintiff filed an Amended Complaint adding an additional
plaintiff and updating and refining the original complaint which was filed
pro se. All the Claims asserted in the Amended Complaint have been
adequately addressed by the original pleadings, supplemental pleadings,
and oral arguments in this case; thus, no additional pleadings are
required. Upon careful consideration of those motions, the oppositions
thereto, relevant case law, and the arguments in Court, BOP's motion to
dismiss is GRANTED IN PART and DENIED IN PART. Plaintiffs' motion for
summary judgment is GRANTED IN PART and DENIED IN PART. This case is
The Zimmer Amendment was initially enacted as section 611 of the
Omnibus Budget Act of Fiscal Year 1997, which expired at the end of the
1997 fiscal year. The Amendment has been re-enacted in each subsequent
federal budget. The Amendment states that:
None of the funds made available in this Act shall be
used to provide the following amenities or personal
comforts in the Federal prison system:
(i) in cell television viewing except for prisoners
who are segregated from the general prison population
for their own safety;
(ii) The viewing of R, X, and NC-17 rated movies,
through whatever medium presented;
(iii)any instruction (live or through broadcasts) or
training equipment for boxing, wrestling, judo,
karate, or other martial art, or any bodybuilding or
weightlifting equipment of any sort;
(iv) possession of in-cell coffee pots, hot plates, or
(v) the use or possession of any electric or electronic
The Amendment's legislative history consists of this comment by
Representative Dick Zimmer introducing the Amendment on the floor of the
House of Representatives:
[T]his amendment deals with prison amenities. Prison
perks are bad public policy and a waste of taxpayer
dollars. My amendment is designed to start eliminating
them from Federal Prisons.
In some prisons, inmate amenities are better than what law-abiding
Americans have. Prisons should be places of detention and punishment;
prison perks undermine the concept of jails as a deterrence. They also
waste taxpayer money. . . .
[M]y amendment would help end this taxpayer abuse by prohibiting funds
from being spent in Federal prisons on luxuries such as martial arts
instruction, weight rooms, in-cell televisions, sexually explicit or
violent movies, and expensive electronic musical instruments. We must
make sure we are spending public funds wisely, not using them on
amenities that have little or no bearing on institutional security and
that far exceed basic standards of human dignity. . . .
[M]y amendment has won the support of the Law Enforcement Alliance of
America, the Nation's largest coalition of law enforcement officers,
crime victims, and concerned citizens. This is a reasonable amendment.
It does not provide for a return of the chain gang. It does provide for
a return to common sense. . . .
I urge my colleagues to support this amendment. Prison perks are bad
public policy and a waste of taxpayer dollars. My amendment is designed
to start eliminating them from Federal Prisons.
Earlier this year during consideration of the anti-crime component of
the Contract with America, this House accepted a no-frills prison
amendment I offered that requires the Attorney General to set specific
standards governing conditions in the Federal prison system that provide
the least amount of amenities and personal comforts consistent with
constitutional requirements and good order and discipline in the Federal
That amendment also requires the Bureau of Prisons to submit an annual
audit to Congress listing exactly how much is spent at each Federal
prison for basics and how much is spent on extras, perks, and amenities.
This requirement will allow Congress to get a handle on whether we are
spending taxpayers money on reasonable items to maintain and secure
prisoners, or whether money is being wasted on luxuries that many
law-abiding Americans cannot afford.
We must make sure we are spending public funds wisely-not using them on
amenities that have little bearing on institutional security.
141 Cong. Rec. H7751-01.
BOP implements legislation through formal or informal rulemaking,
Program Statements, Operations Memoranda, and/or other memoranda.
According to BOP's Rules Administrator,
"[b]ecause the provisions of the Zimmer Amendment do
not allow the BOP any discretion in the provisioning
of specific amenities, there is not need to initiate
rulemaking under the [APA]. BOP accordingly could
proceed to advise . . . wardens how to implement the
legislation via internal memoranda."
BOP implemented the Amendment through Program Statements and Memorandum.
Thus, there are no BOP regulations pertaining to the Amendment.*fn1
BOP issued a Program Statement — Guidelines for Implementation of
the Amendment — on November 15, 1995. It states that "[p]rovisions
of the Zimmer Amendment relate only to the use of appropriated funds.
Given our understanding of the intent, however, the guidance provided
herein may very slightly from a literal reading of the amendment."
Specifically, referring to electrical instruments, it states:
Institutions which currently have electric guitars or
electronic instruments may retain these instruments.
No appropriated funds will be used to purchase new or
to repair existing equipment.
New institutions will not purchase electric or electronic
Trust Fund profits or inmate organization funds will not
be used to purchase or repair electric or electronic
equipment. Donations of these types of instruments will
not be accepted.
The only authorized exception is electric or electronic
equipment which is used in conjunction with religious
activities, stored in the chapel area and is [sic] under
the supervision of the Religious Services Department.
Appropriated funds may be used to purchase or maintain
such equipment in all BOP facilities.
BOP implemented this policy immediately, and, as a result, it predates
the enactment of the Amendment.
On August 26, 1996, BOP issued a memorandum addressing questions BOP
received regarding how to implement the Amendment. The memorandum
clarified the following:
Inmates may not use their own money to buy electric or
electronic instruments as personal property.
Electric and electronic instruments are keyboards,
electric guitars, and any other electric instrument that
Microphones, amplifiers, speakers, tape players, and
record players are excluded from the prohibition.
The recreation staff may not purchase guitar strings for
electric guitars nor may they use strings that were
already on hand prior to Fiscal Year 1996.
Prisoners are to mail home all musical instruments by
November 1, 1997.
BOP phased electrical instruments out of the music program, rather than
eliminating all the electrical instruments at once. BOP anticipated that
this gradual change would minimize inmate reaction to the Amendment. The
phase-out plan is not contrary to the Amendment because it does not
involve appropriated funds to implement. In addition, the policy became
effective prior to the enactment of the Amendment.
BOP interprets the Zimmer Amendment as not allowing inmates to use
personal monies or trust funds*fn2
to purchase or repair electrical
instruments. BOP is of the opinion that the use of other funding sources
to purchase or repair electrical instruments would only circumvent the
intent of Congress.
BOP also interprets the Amendment as not applicable to electrical
instruments used in conjunction with religious activities. As BOP
[c]ongregational singing with musical instrument
accompaniment is a traditional component of the
worship experience. This exception was made because
the BOP does not find that it was the intent of
Congress to restrict the use of musical instruments as
part of the religious services ceremonies.
The legislation did not refer to elimination of electric musical
instruments used in performance of religious services, only those
electric instruments that were amenities or personal comforts of
inmates. Hence the exception of keeping electric and electronic musical
instruments in the Chaplaincy [sic] for use in religious services.
The Zimmer Amendment does not restrict BOP's ability to buy
non-electrical instruments. Plaintiffs assert that an acoustic guitar is
not equivalent to an electric guitar. According to plaintiff Kimberlin,
it is impossible for him to play his songs on an acoustic guitar. He is
not able to make long, sustained notes. Also, he cannot perform a
technique called "vibrato" because the strings on an acoustic guitar will
not bend or sustain like those on an electric guitar.
III. STANDARD OF REVIEW
Before the Court are defendant's motion to dismiss and plaintiffs'
motion for summary judgment. The Court will first address defendant's
motion to dismiss. A party moving for dismissal under Federal Rule of
Civil Procedure 12(b)(6) has the burden of proving that the nonmovant has
failed to state a claim upon which relief can be granted. To prevail,
the movant must show "beyond a reasonable doubt that the plaintiff can
prove no set of facts in support of his claim [that] would entitle him to
relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80
(1957); Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81
L.Ed.2d 59 (1984). For purposes of determining whether a complaint
states a cause of action upon which relief can be granted, the averments
in the complaint are taken as true, and plaintiffs are given the benefit
of any doubts and of all reasonable inferences that can be drawn from the
facts alleged. See Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276
(D.C. Cir. 1994).
Plaintiffs challenge the Zimmer Amendment on its face and as applied
through BOP's policy. However, BOP's policy predates
Accordingly, the Court must determine the proper object of judicial
scrutiny. The D.C. Circuit recently held that if a plaintiff
attack[s] the proscriptions of the statute not
embodied in the regulations, they effectively pursue a
pre-enforcement challenge. Even in the First
Amendment context, such a challenge presents a
justiciable controversy only if the probability of
enforcement is real and substantial. In the statutory
borderland beyond the implementing regulations, . . .
the prospect of enforcement appears inconsequential.
Amatel v. Reno, 156 F.3d 192, 194 (D.C. Cir. 1998). The Circuit refused
to analyze whether a statute that bans funding for the distribution of
sexually explicit materials is constitutional. Rather, the court focused
on the constitutionality of the substantive prohibitions of the
regulations. The Circuit noted that the district court incorrectly
assumed that the statute itself had been and will be applied and it
directed its analysis primarily towards the statute. There, BOP
implemented its regulations after the enactment of the Amendment.
Here, as in Amatel, any challenge to parts of the Amendment not
embodied in BOP's policy is a pre-enforcement challenge. BOP enacted its
policy before the enactment of the Amendment. The Amendment had the
effect of limiting what BOP could do, but BOP could have implemented the
policy without Congressional action. Therefore, this Court has focused on
the constitutionality of BOP's policy. In any event, to the extent BOP's
policy passes constitutional muster, so does the Amendment.
A. First Amendment
1. Definition of the Right
Plaintiffs argue that BOP's policy infringes on their First Amendment
rights. Plaintiffs assert that without access to electric guitars, they
are unable to express themselves by playing, performing, and composing
music. The Supreme Court and this Circuit recognize musical expression
as a form of constitutionally protected speech. See Ward v. Rock Against
Racism, 491 U.S. 781, 790, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (city's
regulation of rock concert in city park must meet the demands of the
First Amendment); United States v. Doe, 986 F.2d 86, 87 (D.C. Cir. 1992)
(beating a drum in the context of an anti-war demonstration is expressive
conduct protected by the First Amendment); see also Hayes v. Schmidt, 69
F.R.D. 56, 58 (W.D.Wis. 1975) (granting a motion to dismiss, the court
noted that the prisoner's interest in playing his musical instrument is
important enough to require officials to demonstrate sufficient
justification for restrictions placed on exercise of that interest, but
the court declined to decide whether this interest is fundamental).
Thus, plaintiffs are correct to assert that they have a First Amendment
right to express themselves through music.
Notwithstanding, BOP has not prohibited all musical expression, only
the use of electrical instruments. An active music program and other
informal means of musical expression still exist. Plaintiffs contend
that an electric guitar is essential to their musical expression. Thus,
they argue, banning this instrument is an absolute ban on their musical
expression. Plaintiffs are incorrect in asserting that music created by
an electric instrument is a distinct expression protected by the First
Amendment. This Court has not found, and plaintiffs do not cite, any
cases addressing this proposition. Accordingly, the issue is whether
BOP's policy impermissibly limits a prisoner's First Amendment right to
himself through music by banning one of several mediums by which
a prisoner can musically express himself.
2. Turner Factors
Prison walls do not "separate inhabitants from their constitutional
rights." Amatel, 156 F.3d at 194 (citing Turner v. Safely, 482 U.S. 78,
84, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987); Connick v. Myers, 461 U.S. 138,
142, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). However, the nature of
prisons does allow "regulation more intrusive than what may lawfully apply
to the general public." Id. at 195 (citing Turner, 482 U.S. at 84-85;
Connick, 461 U.S. at 143). BOP can limit plaintiffs' First Amendment
rights to express themselves musically because plaintiffs are prisoners.
For prisoners to show that such a limitation amounts to a First Amendment
violation, they must prove that the challenged action is not reasonably
related to a legitimate penological interest. See Thornburgh v. Abbott,
490 U.S. 401, 409, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989); Turner, 482
U.S. at 89. The Supreme Court has confirmed that the test set forth in
Turner must be applied to determine whether there is a violation of a
prisoner's First Amendment rights. See Shaw v. Murphy, No. 99-1613
(S.Ct. April 18, 2001); Thornburgh, 490 U.S. at 414; see also Amatel v.
Reno, 156 F.3d 192, 194 (D.C. Cir. 1998).
The first Turner factor is multifold: a court must determine whether
the governmental objective underlying the regulations at issue is
legitimate and neutral, and that the regulations are rationally related
to that objective. See Turner, 482 U.S. at 89-90. The second factor is
whether there are alternative means of exercising the right that remain
open to prisoners. Id. at 90. The third factor under Turner is the impact
on the prison of accommodating the asserted right. Id. at 90-91.
Finally, Turner held that the existence of obvious, easy alternatives may
be evidence that the regulation is not reasonable, but is an exaggerated
response to prison concerns. Id. at 90-91.
The Supreme Court requires courts to analyze the restriction of a
prisoner's First Amendment rights using the Turner standard, regardless of
the severity of the restriction. For example, in Amatel, 156 F.2d at
94, the Circuit upheld the restriction on the distribution of sexually
explicit materials using the Turner factors.
a. The Governmental Objective Is Legitimate.
BOP maintains that the objective of its policy is to enhance the
punishment aspect of prisons, as a deterrent. When determining intent,
courts should start with the assumption that the purpose is expressed by
the ordinary meaning of the words used. See INS v. Elias-Zacarias,
502 U.S. 478, 482, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). The plain
meaning of BOP's policy (and the Amendment) suggests that the purpose was
to decrease spending on certain prison amenities and personal comforts.
Thus, the Court could interpret the policy (and the Amendment) as an
appropriation measure. If the plain meaning of the policy (and the
Amendment) does not enlighten a court of the intent, courts may look to
the policy's (and the Amendment's) history. BOP implemented the policy in
anticipation of and to enforce the Zimmer Amendment, which was pending
enactment. The legislative history of the Amendment supports the
conclusion that Congress enacted the Zimmer Amendment to curb spending on
prison amenities and to enhance the punishment
aspect of prison as a
deterrent. Thus, the punitive intent is clear from the legislative
Contrary to plaintiffs' argument, the Supreme Court has long recognized
that Congress has a legitimate penological interest in punishment and
deterrence. See Rhodes v. Chapman, 452 U.S. 337, 352, 101 S.Ct. 2392, 69
L.Ed.2d 59 (1981) (defining penal function as: "to punish justly, to
deter future crime, and to return imprisoned persons to society with an
improved change [sic] of being useful, law-abiding citizens"); O'Lone v.
Estate of Shabazz, 482 U.S. 342, 349, 107 S.Ct. 2400, 96 L.Ed.2d 282
(1987); Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 41 L.Ed.2d
495 (1974) (stating that "[a]n important function of the corrections
system is the deterrence of crime," while analyzing prisoners' First
Amendment right to have face-to-face interviews with journalists).
However, the government has never defended a restriction solely on
deterrence or punishment grounds. This appears to be the first instance
where the government asserts only deterrence and/or punishment as a
legitimate reason for limiting a prisoner's First Amendment rights. The
government usually asserts internal order, security, and/or
rehabilitation as the legitimate objective. See e.g. Thornburgh, 490
U.S. at 415; O'Lone, 482 U.S. at 350; Turner, 482 U.S. at 91. The fact
that the government has never asserted these interests should not
abrogate the Supreme Court's opinion that punishment and deterrence are
legitimate goals that will support the limitation of First Amendment and
other constitutional rights. The Supreme Court has given guidance and it
would be imprudent to ignore such guidance for lack of on point
What's more, the Supreme Court held that "to the extent that [prison]
conditions are restrictive or even harsh, they are part of the penalty
that criminal offenders pay for their offenses to society." Rhodes, 452
U.S. at 347 (1981) (holding that it was not cruel and unusual punishment
for prisoners to be confined to double cells); see also Price v.
Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 92 L.Ed. 1356 (1972) (noting
that "lawful incarceration brings about the necessary withdrawal or
limitation of many privileges and rights, a retraction justified by the
considerations underlying our penal system"). This Circuit has concluded
that a court, and presumably Congress, "could, consistent with the
Constitution, deprive male and female inmates of virtually all of the
programs they now enjoy." Women Prisoners of the District of Columbia
Dept. of Corrections v. District of Columbia, 93 F.3d 910, 927 (D.C.
Plaintiffs also incorrectly assert that the government has no
deterrence interest in current prisoners that justifies harsher prisons.
This is simply not true. In fact, a prisoner at the time the policy is
implemented is very likely to feel the effects of the policy. This
current inmate will experience first hand the punishment, which will
hopefully deter him and others in the future. Furthermore, it would not
be practical to allow the current inmates to use and possess everything
banned in the Amendment and only restrict prisoners who entered the
prison system after the policy.
b. The Governmental Objective Is Neutral.
BOP's objective is neutral. This factor requires a court to look to
the policy's goals, not the policy itself, to determine neutrality. See
Amatel, 156 F.3d at 197. Neutral means no more than "the regulation or
practice in question must further an important or substantial governmental
interest unrelated to the suppression of expression." Thornburgh, 490
U.S. at 415. In Thornburgh, the Supreme Court found neutrality because
the prison administrators were to draw distinctions based solely on the
potential implications for prison security. Id. at 416. In Amatel, 156
F.3d at 197, the Circuit found that prohibiting the distribution of
sexually explicit materials served to rehabilitate, a neutral objective.
Here, the policy seeks to deter crime by making prison harsher. This
goal is unrelated to the suppression of musical expression. BOP did not
seek to suppress musical expression per se. Rather, it sought to make
prisons harsher by prohibiting luxury items, including electrical and
c. BOP's Policy Is Rationally Related to Its Objective.
The policy is rationally related to its objectives. The Circuit has
recognized that prison jurisprudence has not developed enough to indicate
the precise demands of the rational means-ends connection. See id. at
199. A court must determine if the legislature's judgment is rational,
not whether the court agrees with the legislature. See, e.g., Nordlinger
v. Hahn, 505 U.S. 1, 11, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992). Another
question is whether the legislature might reasonably believe that the
policy will advance the governmental interest, not whether the policy in
fact advances that interest. See Amatel, 156 F.3d at 199. As a result,
it is unnecessary to look at evidence of the actual deterrence effect of
prohibiting certain amenities.
Congress took away several amenities that, in the aggregate, it
perceived would make prisons more of a deterrent. While banning musical
instruments, by itself, may not actually deter anyone, it is possible
that BOP (and Congress) thought the ban would indicate to society that
prison is a harsh place where one does not want to be. The legislative
history indicates that the Amendment was introduced, and presumably
passed, because it would strengthen the deterrent effect of prison by
harshening the conditions.
The government could rationally see a connection between the deterrence
goal of prison and the conditions of prison. Congress could have seen
luxuries in prisons as contrary to a perception of prison that is
necessary for deterrence. That is, prisons should be seen as a terrible
place to effectively deter crime. The supposition that exclusion of
electric instruments will have much of an impact on this perception may
be optimistic, but it is not irrational. Especially when considering
that Congress not only banned electrical instruments, but also weights,
fight training, R, X, and NC-17 rated movies, commercially published
information or material known to be sexually explicit or featuring nudity
(Ensign Amendment, section 614, Pub.L. No. 104-208, 110 Stat. 3009), and
in-cell coffee pots, hot plates, heating elements, and televisions.
Plaintiffs infer that Congress acted improperly by enacting the
Amendment without fact finding or consulting with prison officials and
administrators. They also suggest that Congress improperly enacted the
Amendment without putting forth evidence that the Amendment was in
response to any real or perceived threat to institutional security,
discipline, or good order in federal prisons. Congress does not have a
duty to create a factual record with respect its Amendment. As BOP
correctly indicated, Congress has the power to legislate prison
conditions, so long as its legislation does not run afoul of the
Constitution. It does not have to get input from BOP on any of its
nor does it have to conduct fact finding to pass valid
legislation. See Heller v. Doe, 509 U.S. 312, 316, 113 S.Ct. 2637, 125
L.Ed.2d 257 (1993) (noting that the legislature is not required to
convince the courts of the correctness of its legislative judgments); FCC
v. Beach Communications, Inc., 508 U.S. 307, 315, 113 S.Ct. 2096, 124
L.Ed.2d 211 (1993) (noting that the legislature is not required to
articulate its reasons for enacting a statute). In Amatel, 156 F.3d at
199, the Circuit indicated that Turner does not require record evidence,
such as social science data for a valid regulation to be valid. The
Circuit held that a court may rely on common sense to determine whether
there is a rational link between a policy and the asserted governmental
interest. See id.
Plaintiffs argue that BOP's history of successfully administering a
music program that allowed access to electrical instruments evidences the
irrationality of the program. The fact that BOP successfully ran the
program in the past is irrelevant to whether eliminating the use of
electric instruments would have a deterrent effect. As BOP noted, since
the policy deprives plaintiffs of electrical instruments as a comfort and
amenity, the prison is somewhat harsher.
d. There Are Alternate Means of Exercising the Right that Remain Open
The Amendment, by its terms, does not prohibit prisoners from
purchasing or repairing electrical instruments at their own expense.
However, BOP's policy does make this restriction. In making such a
restriction BOP does not violate the APA, as asserted in Claims 1 and 2.
Instead, BOP has created a new restriction under its power to manage the
prisons. Accordingly, this Court has analyzed BOP's policy as a ban on
the use or possession of musical instruments, even though the Zimmer
Amendment was only a spending restriction. As the D.C. Circuit noted in
Amatel, 156 F.3d at 194 n. 1, "[w]hen the government absolutely
monopolizes the means of speech or controls a bottleneck, as we are to
assume vis-a-vis the prison distribution system, a refusal to fund
functions the same as an outright ban."
When analyzing this factor, the Circuit cautions that "[i]f the right
at stake is defined in terms of the materials excluded by the ban, any
regulation will come up short." Amatel, 156 F.3d at 201. In
Thornburgh, 490 U.S. at 417, the Supreme Court noted that the relevant
right "must be viewed sensibly and expansively." In Thornburgh, 490 U.S.
at 418, the Court upheld a ban on all sexually explicit material in part
because the ban allowed for an alternate means of exercising the right at
issue — the ban allowed a broad range of other publications to be
sent. In Turner, 482 U.S. at 92, the Supreme Court noted that a
correspondence regulation "[did] not deprive prisoners of all means of
expression. Rather, it bars communication only with a limited class of
other people with whom prison officials have particular cause to be
concerned." The Circuit held in Amatel, 156 F.3d at 200, that unless
there is some minimum entitlement to smut in prison, a ban on sexually
explicit material does provide for alternate means of expressing the
right at issue. Furthermore, as the Circuit noted, "even if there was
such a bizarre entitlement, the [policy] would still satisfy this
factor, as [it] leave[s] the inmate free to enjoy all written forms of
smut not otherwise barred." Id. n. 7.
Plaintiffs argue that to require them to express themselves musically
on an acoustic instrument would be akin to requiring rap musicians to
sing ballads, or Muslim prisoners to attend Catholic religious
Plaintiffs insist that they cannot perform their music on
Plaintiffs are free to express themselves musically using other
instruments, such as an acoustic guitar. Like the prisoners in Amatel,
plaintiffs are only limited, not deprived. They can perform music written
for an electric guitar on an acoustic guitar. This is not the same as
expression on an electric instrument, but it is certainly an alternate to
such expression. Moreover, plaintiff Kimberlin has stated that he has
written a song which he can hear in his mind, but cannot perform, edit,
polish, or get feedback. He may discuss the notes, lyrics, and ideas with
others as a means of expressing himself through his music and getting
feedback. Again, this is not the same as playing the electric guitar,
but it is an alternate that allows him to express himself musically. If
the Court defined the right as plaintiffs insists — one allowing
him to express himself through electric instruments — the ban would
fail because, like the Circuit cautioned in Amatel, any regulation would
come up short.
e. The Impact of Any Accommodation of the Asserted Constitutional Right
on Prison Personnel, Other Inmates, or the Allocation of Prison
Resources Generally is Significant.
Plaintiffs assert that restoring access to electric instruments would
do nothing to disturb BOP's administration of the prison system; thus,
there is minimal impact on the prison. In addition, plaintiffs assert
that inmates could be permitted to purchase and repair electrical
instruments with personal funds, raised funds, or money from the Inmate
. This is an easy alternative that would alleviate
any appropriation concerns.
BOP merely argues that it cannot accommodate plaintiffs without
contravening the Amendment's legitimate purpose of making prisons more of
a deterrent. This Circuit recognizes this argument as valid. See
Amatel, 156 F.3d at 201 (holding that "if Congress may reasonably
conclude that pornography increases the risk of prison rape, then the
adverse impact is substantial. Accommodating the right poses a threat to
the safety of guards and other inmates").
f. There Are No Obvious, Easy Alternatives that Suggest that the Policy
Is Not Reasonable.
At first blush, this factor presents a problem for BOP. Because BOP
allows the use of electrical instruments for religious purposes, it has
undercut its argument that the policy is reasonable. However, in the
next section, the Court concludes that BOP's policy regarding electrical
for religious purposes is impermissible. Without this
exception, plaintiffs cannot point to any other alternative that suggests
the policy is unreasonable. Nevertheless, the existence of the exception
does indicate that BOP may not believe that the prohibition reasonably
acts as a deterrent. However, BOP's beliefs may be inconsistent with the
legislature's beliefs. Once Congress enacted the Amendment, BOP could
not create the exception. BOP does not have the authority to
second-guess Congress. See Public Citizen v. FTC, 869 F.2d 1541, 1557
(D.C. Cir. 1989). Accordingly, this Court will not find that the
exception, which this Court holds is impermissible, prevents a finding
that the policy is unreasonable.
For the foregoing reasons, the Court grants defendant's motion to
dismiss as to Claims 1, 2 and 3. Judgment is entered in favor of
defendants on these Claims.
B. Religion Exception
Plaintiffs challenge BOP's implementation of a religious-use exception
to the Amendment on two grounds. First, plaintiffs argue that the
actions violate the First and Fifth Amendments because prison inmates are
permitted to use electric instruments to perform music in connection with
religious activities. Second, they argue that the actions are arbitrary
and capricious because they discriminate in favor of religion.
It is a well-settled principle of law that a court "will not pass upon
a constitutional question although properly presented by the record, if
there is also present some other ground upon which the case may be
disposed." Slack v. McDaniel, ___ U.S. ___, 120 S.Ct. 1595, 1604, 146
L.Ed.2d 542 (2000) (quoting Ashwater v. VTA, 297 U.S. 288, 347, 56 S.Ct.
466, 80 L.Ed. 688 (1936) (Brandeis, J. concurring)). Accordingly, the
Court addressed the APA violation first and found that the policy exceeds
the limitation on BOP in the Amendment, a violation of the APA.
Plaintiffs assert that BOP's discrimination is an arbitrary and
capricious action by a federal agency, citing 5 U.S.C. § 706.
However, the Court must first decide whether BOP's interpretation is "in
excess of statutory jurisdiction, authority, or limitations, or short of
statutory right." 5 U.S.C. § 706 (2)(C). Neither party has
addressed this issue, but in analyzing whether the Amendment is arbitrary
and capricious both parties do use the proper analytical framework.
BOP states that it was implementing the plain meaning of the Amendment
(although the policy came before the Amendment), as follows:
[W]hether or not the Zimmer Amendment directly
addressed the precise issue of prisoners use of
electric instruments in connection with religious
activities, it does permit the BOP to make a
reasonable exception for such use. The Amendment
prohibited federally funded comforts and amenities
such as electric guitars in the interests of making
prisons places of greater deterrence and punishment.
It did not call for the elimination of electric
instruments used in connection with religious
The Supreme Court has created a two-part test for determining whether
to uphold an agency's interpretation of a statute. See Chevron U.S.A.
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct.
2778, 81 L.Ed.2d 694 (1984). The Court must first look at whether the
agency's interpretation flows from
the unambiguous meaning of the
statute. See id. If the agency's decision does not flow from the
unambiguous meaning of the statute, the Court must determine whether the
interpretation is a reasonable construction of ambiguous statutory
language. See id. BOP's interpretation fails this test.
The interpretation does not flow from the unambiguous meaning of the
Amendment. BOP is really arguing that its interpretation is valid based
on the purpose of the Amendment not the plain meaning. BOP stated in its
November 15, 1995 memorandum, page 1, that "the guidance . . . may differ
slightly from the literal reading of the amendment." Thus, it
acknowledges that its guidance does not flow from literal or unambiguous
words of the Amendment.
Also, BOP's interpretation is not a reasonable construction of
ambiguous statutory language. The Amendment is clear "[n]one of the
funds . . . shall be used to provide the following amenities or personal
comforts . . . the use or possession of any electric or electronic
musical instrument." First, BOP argues that the Amendment only bans the
use or possession of electrical instruments when such use or possession
is for personal comfort. If Congress meant to create an exception it
could have done so explicitly by qualifying use or possession as personal
use or possession, which it did when banning in-cell coffee pots, hot
plate, heating elements, and televisions. Second, BOP argues that
prisoners do not personally possess the instruments that are used in
conjunction with religious activities; those instruments are stored in
chapels under the supervision of the Religious Services Department. This
argument cuts in favor of plaintiffs, since plaintiffs want BOP to
purchase and maintain electric instruments as a part of the recreation
program, and store them under the supervision of the Recreation
Department. Third, BOP argues that instruments maintained for religious
purposes are used in conjunction with religious activities not personal
use. Again, this argument cuts in favor of plaintiffs' request that BOP
maintain electric instruments for recreational use, not merely personal
In any event, the Supreme Court has recently stated that agency opinion
letters are not entitled to the Chevron deference. See Christensen v.
Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621
(2000); District of Columbia Hospital Assoc. v. District of Columbia,
224 F.3d 776, 780 (D.C. Cir. 2000). The Supreme Court distinguish the
deference given to an interpretation contained in an opinion letter from
one arrived at after a formal adjudication or notice-and-comment
rulemaking, such as a regulation. Instead, interpretations contained in
formats such as opinion letters, internal agency guidelines, interpretive
rules, and enforcement guidelines, are entitled to respect, but only to
the extent they have the power to persuade. See Christensen, 529 U.S. at
It is true that the Amendment does not detail which items are amenities
and which are personal comforts, but this is irrelevant. The Amendment is
unambiguous because it clearly prohibits the use of funds for electrical
instruments. There is no reasonable reading of the Amendment that would
create a religious use exception. Furthermore, the reasons, stated in
BOP policy and affidavits filed in connection with the motions, for the
religious use exception do not have the power to persuade.
The D.C. Circuit held that "[w]hile agencies may safely be assumed to
have discretion to create exceptions at the margins of a regulatory
field, they are not empowered to weigh the costs and benefits of
regulation at every turn; agencies surely do not have inherent authority
to second-guess Congress' calculations." Public Citizen v. FTC,
at 1557. The religion exception is hardly at the margin of the field
that was limited by the Amendment. Accordingly, the religious use
exception is in violation of the APA. Because this Court decided the
challenge to the religion use exception on non-constitutional grounds, it
need not address the constitutional issues raised by the religious
For the foregoing reasons, defendant's motion to dismiss Claim 4 is
PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
With respect to plaintiffs' motion for summary judgment, BOP raises no
genuine issues of material fact which would preclude summary judgment on
the remaining issues in this case. Viewing the facts in the light most
favorable to BOP, as required by Fed.R.Civ.P. 56, see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2502, 91 L.Ed.2d 202 (1986), this
Court grants plaintiffs' motion as to Claim 4. BOP permitted the use of
electric or electronic instruments in connection with religious
activities in violation of the APA, as stated above. Defendant BOP is
hereby enjoined from providing electrical or electronic musical
instruments in connection with religious activities.
IT IS SO ORDERED.