Open question to Clara or Becket, and any other apologists

You'd be surprised at how little some trial judges know about this. Thankfully appellate court justices are much more astute.

Here Trisha, read this from Inouye v. Kemna, 504 F. 3d 705 (2007):

http://scholar.google.com/scholar_case?case=6773570865128492755&hl=en&as...

Having held, first, as we must under Saucier, that there was a constitutional violation on the facts alleged, we now turn to the question at the heart of the parties' dispute: was the pertinent Establishment Clause law "clearly established" on this point such that a reasonable official would know that his or her conduct was illegal? Sorrels, 290 F.3d at 969. We find that it was. The vastly overwhelming weight of authority on the precise question in this case held at the time of Nanamori's actions that coercing participation in programs of this kind is unconstitutional.

In 2001 — indeed, until this case — our Circuit had not ruled on this question. "Absent binding precedent, we look to all available decisional law, including the law of other circuits and district courts, to determine whether the right was clearly established. We also evaluate the likelihood that this circuit or the Supreme Court would have reached the same result." Osolinski v. Kane, 92 F.3d 934, 936 715*715 (9th Cir.1996) (internal citations omitted). While officers cannot be "expected to predict the future course of constitutional law," Wilson v. Layne, 526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999), the law may be clearly established even if there is no case directly on point. Id. at 615, 119 S.Ct. 1692. It is enough if "in the light of pre-existing law the unlawfulness [is] apparent." Id.[12] Here, Nanamori need not have relied on more general cases. He had a wealth of on-point cases putting him, and any reasonable officer, on notice that his actions were unconstitutional.

By 2001, two circuit courts, at least three district courts, and two state supreme courts had all considered whether prisoners or parolees could be forced to attend religion-based treatment programs. Their unanimous conclusion was that such coercion was unconstitutional. See Warner v. Orange County Dept. of Probation, 115 F.3d 1068, 1074-75 (2nd Cir.1997) (holding that it was a constitutional violation to impose participation in AA/NA as a probation condition); Kerr v. Farrey, 95 F.3d 472, 479-80 (7th Cir.1996) (same for prisoners); Alexander v. Schenk, 118 F.Supp.2d 298, 301-02 (N.D.N.Y.2000) (same); Warburton v. Underwood, 2 F.Supp.2d 306, 318 (W.D.N.Y.1998) (same); Ross v. Keelings, 2 F.Supp.2d 810, 817-18 (E.D.Va.1998) (same); Arnold v. Tennessee Board of Paroles, 956 S.W.2d 478, 483-84 (Tenn.1997) (AA/NA imposition unconstitutional as a parole condition); In the Matter of David Griffin v. Coughlin, 88 N.Y.2d 674, 691-92, 649 N.Y.S.2d 903, 673 N.E.2d 98 (1996) (AA/NA imposition unconstitutional with regard to a prisoner).

We note that this march of unanimity has continued well past March, 2001, when Nanamori acted. Indeed, a district court found a constitutional violation on nearly identical facts just one month later in April, 2001, finding, too, that the law at that time was "clearly established" and no qualified immunity was available. See Bausch v. Sumiec, 139 F.Supp.2d 1029, 1037, 1039 (E.D.Wis.2001).[13] More recent courts have agreed. See Armstrong v. Beauclair, 2007 WL 1381790, *12-*13 (slip op.) (D.Idaho Mar. 29, 2007) (noting supporting rulings dating to 1996 and striking down AA/NA requirement as parole condition); Turner v. Hickman, 342 F.Supp.2d 887, 895-97 (E.D.Cal.2004) (collecting cases and adopting Kerr test to bar AA/NA as requirement for release on parole); Nusbaum v. Terrangi, 210 F.Supp.2d 784, 789-91 (E.D.Va.2002) (holding that there was a violation but finding qualified immunity because defendants were making a good faith effort to come into compliance with the law in prison context). The only case of recent vintage that upheld participation in an AA/NA program, decided in June, 2001, endorsed Kerr but held against the plaintiff prison inmate because he had a choice of programs and was not coerced to attend the one he challenged. In re Garcia, 106 Wash.App. 625, 24 P.3d 1091, 1096-97 (2001). Garcia is thus entirely consistent with our holding and with those of all the cases we have cited.

716*716 The district court reviewed much of this law before holding that a constitutional violation had occurred. Yet it held, nonetheless, that the law was not clearly established. The court reached this conclusion because it believed that there were a small number of "divergent opinions," even though it noted that a violation had been found "by the majority of federal district courts and state courts," along with the Seventh and Second Circuits. The district court's conclusion was in error, both legally and factually.

First, lack of complete unanimity does not mean that a legal principle has not been clearly established. Second, the "divergent opinions" the district court relied upon totaled three, all federal district court decisions, and each at least five years old by 2001. Third, as the district court itself noted in its merits discussion, two of these three cases — all except the oldest — are "distinguishable from the instant case in critical ways."

O'Connor v. California, 855 F.Supp. 303 (C.D.Cal.1994), a challenge to AA/NA imposed as part of a sentence for drunk driving, acknowledged that the program was "founded on monotheistic principles" but explained that it was "[s]ignificant to this Court's decision that the individual has a choice over what program to attend." Id. at 307-08 (emphasis in original). So O'Connor does not speak to the coercion issue.

The holding of Boyd v. Coughlin, 914 F.Supp. 828 (N.D.N.Y.1996), which did uphold a coerced program, was abrogated by the Second Circuit in Warner, and so was not good law at the time the district court relied upon it as a "divergent opinion." See Warner, 115 F.3d at 1074-75.

Of the cases that the district court felt could have caused a reasonable parole officer to be confused about the state of the law, this leaves only Stafford v. Harrison, 766 F.Supp. 1014 (D.Kan.1991).[14] This case, a decade old in 2001, applied the Lemon test directly, did not consider the warnings against coercion dating back to Everson, and was decided using Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), deference because it regarded prisoners, not probationers. Stafford, 766 F.Supp. at 1016-17. This factually-distinct case, decided before Lee reemphasized the dangers of coercion in the Establishment context, simply is not enough to render the state of the law in 2001 anything less than clear.

This uncommonly well-settled case law alone is enough for us to hold that the law was clearly established, sufficient to give notice to a reasonable parole officer, in 2001. But there are additional factual circumstances in this case that persuade us still further. We consider them not for their subjective effect on Nanamori but for their objective effect on a reasonable parole officer in his fact-specific position. Anderson, 483 U.S. at 641, 107 S.Ct. 3034.

First, there was an ongoing federal suit against Hawaii prison officials over mandatory religion-based treatment programs, filed by Inouye, at the time when Nanamori imposed AA/NA as a parole condition. This suit, filed a year prior, focused on the constitutionality of coerced religion-based treatment programs and might well have put a reasonable parole officer on notice, 717*717 particularly with regard to the very plaintiff in the suit.[15]

Second, on the present record, a jury could infer Nanamori had actual notice that his actions were unconstitutional, in the form of Inouye's letter to the Hawaii Paroling Authority objecting to such programs and attaching Kerr. The district court suggests that Kerr did not provide adequate notice because the court there granted qualified immunity, holding that the law was not yet clearly established. But it is Kerr, of course, which contributed greatly to establishing the law, and which lays out, convincingly enough to guide any officer facing the question since, why a constitutional violation occurs when AA/NA is simply required, without alternatives. A reasonable parole officer, reading Kerr four years after it had been decided, and making the effort to learn that, since it was decided, many courts have agreed with it and none have disagreed, would be put on notice by the decision.

Given all this, Nanamori's mistake as to the law was not reasonable. An officer in Nanamori's position, having available near-unanimous judicial invalidation of religious coercion in this and similar contexts, with a lawsuit in progress against the prison system for mandating participation in a similar program, and having Kerr in hand, should not have reasonably repeated the same mistake.

You keep trying to convince me of something that I am not arguing.
Turn the switch off.

Is that what Clara said? I thought she was anti-mandating.