Reply Brief for Appellant Ernest Jord Guardado


  • James A. Sonne
  • Zeba A. Huq
  • George L. Muirhead
  • Matthew Rodriguez
  • Katherine L. Viti
Publish Date:
June 8, 2023
  • James A. Sonne, Zeba A. Huq, George L. Muirhead, Matthew Rodriguez & Katherine L. Viti, Reply Brief for Appellant Ernest Jord Guardado, No. 21-16068 in the U.S. Court of Appeals for the Ninth Circuit (Jun. 8, 2023).
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The district court committed reversible error on two alternative grounds in granting summary judgment to the Nevada Department of Corrections and its officials (collectively, “NDOC”) on Ernest Guardado’s constitutional challenge to Administrative Regulation 810.3.

First, the district court erred by analyzing under Turner v. Safley AR 810.3’s exclusion of Guardado from observing his Native American faith in prison based on his inability to prove Native heritage. Because, as the district court found, this exclusion constituted a form of race discrimination, Johnson v. California required the court to have applied strict scrutiny and not the more deferential Turner standard. And under strict scrutiny, AR 810.3 fails for reasons similar to those the district court offered in ruling for Guardado on his RLUIPA claim—a ruling that likewise involved heightened review and which NDOC has not appealed.

Second, and in the alternative, the district court erred in upholding AR 810.3 under Turner. For starters, it failed to address the four Turner factors—an omission this Court has repeatedly condemned in reversing rulings under Turner on appeal. Moreover, and as the district court found in rejecting NDOC’s evidentiary showing on the RLUIPA claim, the record fails to establish that the Turner factors were met.

Numerous courts, including the district court here, have found the requirements of AR 810.3 or its analogues in other states to constitute race discrimination. On strict scrutiny, moreover, AR 810.3 fails because, as the district court found in applying similar provisions of RLUIPA, NDOC’s violence concerns are unsupported by the record as a compelling
interest; nor can NDOC show the policy is narrowly tailored to any such concerns.

Alternatively, the district court did indeed commit reversible error under this Court’s precedent by failing outright to address at least two of the Turner factors. Moreover, there is ample evidence on these and the other factors to support a finding of unconstitutionality—thus precluding summary judgment for NDOC in any event.

Finally, qualified immunity does not attach here. After all, NDOC has repeatedly litigated AR 810.3, with an on-point loss at the Nevada Supreme Court that made clear it is an illegal form of race discrimination. Furthermore, a robust consensus of in-circuit and out-of-circuit courts agree. Thus, NDOC’s officers have known or should have known for years that their actions violate the constitutional rights of non-Native inmates to practice the Native faith. At a minimum, we ask this
Court to rule on the merits in line with established authority.