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Ninth Circuit:
Inmate, Self-Proclaimed ‘Witch,’ Can’t Have Access to Fire
By a MetNews Staff Writer
A state prisoner who is a Wiccan—a member of a pagan religion that practices witchcraft—can’t use an open flame in a fire pit as part of a ritual, under a 2-1 decision of Ninth U.S. Circuit Court of Appeals affirming the denial of a preliminary injunction.
Friday’s memorandum opinion was signed by Ninth Circuit Senior Judge Carlos Bea and Sixth Circuit Judge Eugene E. Siler, sitting by designation. Ninth Circuit Judge Sandra S. Ikuta dissented, maintaining that the majority misconstrues a declaration by the community resources manager of Mule Creek State Prison (“MCSP”) in California’s Amador County and fails to honor an Oct. 17, 2011 consent decree entered into by inmate William Rouser, the appellant, and officials of the California Department of Collections.
That decree, stemming from litigation Rouser instituted in 1993, provides, among other things, that Rouser may conduct, with other Wiccan prisoners, eight annual “sabbats” in an outdoor area and that the participants “shall have access to a fire pit on the outdoor worship area.”
While, through many centuries, only female adherents to “Wica,” traditionally spelled with one “c,” were described as “witches, with male followers being denominated “warlochs,” all professed devotees modernly embrace the term “witch.”
District Court’s Decision
On Jan. 11, 2022, District Court Judge R. Gary Klausner of the Central District of California said, in denying a preliminary injunction sought by Rouser:
“While the Consent Decree allows Plaintiff ‘access to the fire pit’ and allows him to use candles, his access to and use of those objects is expressly limited by ‘institutional safety and security concerns, including applicable fire safety regulations.’…Defendant is assigned to MCSP, which does not allow prisoners access to open flames for security reasons….In lieu of an open flame, inmates may simulate fire with tea lights or battery-powered flameless candles.”
Citing a declaration by prison official Lance Eshelman acknowledging that some use of fire is granted to Native American inmates in conducting religious rituals, Rouser argued in his brief that the same accommodation cannot justifiably be denied Wiccans. Klausner responded:
“The differences between the ceremonies at issue indicate why MCSP is unable to allow Plaintiff a similar accommodation. Only one Native American inmate is allowed near the fire, and his access is carefully monitored. That inmate uses the flame for the limited purpose of heating rocks, which are then transferred elsewhere for the actual ceremony.”
He quoted Eshelman as saying:
“The fire pit is not used by the entire Native American congregation.”
The District Court judge observed:
“By contrast, it appears that Plaintiff and the entire Wiccan congregation need to be near open flame for a sustained period of time so that they can cast the circle necessary to celebrate sabbat. Accordingly, taking the differences in ceremonies into account, MCSP has no less restrictive means of accommodating Wiccans, notwithstanding its exemption for Native Americans.”
Missing Words
Eshelman did say that “[t]he fire pit is not used by the entire Native American congregation,” but Klausner omitted the balance of that sentence: “except at the beginning of the purification ceremony, when the congregation offers prayers and/or medicine to the fire.” Rouser relied heavily on the words Klausner excluded, asserting that at the outset of their ceremony, all participating Native Americans do gather around the fire. At oral argument in Pasadena on April 9, Rouser’s pro bono attorney Laura Hill of the Seattle office of Perkins Coie, LLP, asserted that the latter part of the sentence is “the key phrase” and accused Klausner of having “selectively quoted” Eshelman’s statement.
Under questioning by Bea as to how it could be found that Klausner committed “clear error,” warranting reversal, when he chose to credit one portion of Eshelman’s statement over another, Hill responded that the judge “ignored part of the statement which is clear error.” She posited:
“It is clear error to simply ignore record evidence.”
Signaling her agreement with Rouser’s position, Ikuta asked Deputy Attorney General Attorney George R. Morris of the Central District of California, representing the state defendants:
“Why isn’t it error for the District Court not even to acknowledge the exception language?”
He said that Klausner “mentioned the first part of the sentence,” contending that a judge’s picking and choosing of portions of a declaration to rely upon cannot be regarded as clear error under an abuse-of-discretion standard.
Majority’s View
Bea and Siler, in affirming Klausner’s order, found that the words Klausner left out of his quotation from Eshelman’s declaration lack significance.
The words can be reconciled, they said, with Eshelman’s statement that “[o]nly one Native American inmate is allowed near the fire,” and that “[t]he fire pit is not used by the entire Native American congregation,” explaining:
“That the Native American congregation ‘offers prayers and/or medicine to the fire’ does not necessarily imply that the congregation assembles itself around the fire. Indeed, that a congregation makes offerings and prayers to a Christian tabernacle does not require the congregation closely to surround the tabernacle. We therefore see no basis for replacing the district court’s construction of Eshelman’s declaration with the construction Rouser prefers.”
Dissenting Opinion
Disagreeing, Ikuta wrote:
“The key statement here is that ‘[t]he fire pit is not used by the entire Native American congregation, except at the beginning of the purification ceremony, when the congregation offers prayers and/or medicine to the fire.’ The first part of this sentence provides the general rule that ‘[t]he fire pit is not used by the entire Native American congregation.’ The next word, ‘except,’ indicates that there is an exception to the general rule—that is, that at some point, the fire pit is used by the entire Native American congregation.”
She continued:
“The clause introduced by ‘except’ confirms that this exception to the general rule occurs at the beginning of the purification ceremony. At that time, ‘the congregation offers prayers and/or medicine to the fire.’ The use of the word ‘fire’ indicates that there is fire in the fire pit. The only fair reading of this sentence, therefore, is that at the beginning of the purification ceremony, the entire congregation has access to a fire in the fire pit.”
Ikuta pointed to the next sentence in the declaration—“The Native Americans do not use the fire pit or access open flame during their ceremonies, as the heat for their ceremonies is generated from the rocks which were previously heated in the fire pit”—and declared:
“Reading these sentences together, the Native Americans use fire and the fire pit at the beginning of the purification ceremony, but not do not use fire or the fire pit during the service.”
She said that she would reverse and remand because the denial of a preliminary injunction was predicated on Klausner’s “erroneous factual finding that the MCSP did not allow any prisoners access to open flames.”
Lengthy Litigation
Ikuta began her dissent by remarking:
“William Rouser has been fighting for the right to practice his Wiccan faith in the California prison system for over thirty years….Rouser first prevailed on his civil rights claim in 1997, resulting in a comprehensive consent decree….Over the next fourteen years, Rouser successfully complained of numerous violations of the consent degree, resulting in the prison entering into a second consent decree in 2011….In 2016, the prison system attempted to dissolve the consent decree on the ground that the prison was in substantial compliance with its terms….In light of the prison’s numerous violations of the decree, Rouser successfully prevented its dissolution….
“Yet here we are again.”
Evidentiary Hearing
At oral argument, the prospect was raised of a remand for the purpose of an evidentiary hearing to determine just whether the sequence of events is when Native Americans conduct their ritual, with Bea querying as to whether it would be useful for Rouser to videotape such a ceremony. Hill said it was doubtful that such evidence-gathering would be permissible under prison regulations but that, in any event, Rouser’s request for a preliminary injunction came three years earlier and conditions might now be different.
Hill said that an “evidentiary hearing would be appropriate,” but when asked by Siler if Rouser had requested it, said “no.” The opinion does not discuss the prospect.
The case is Rouser v. White, 22-55139.
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