Ninth Circuit Weighs Whether Inmates Are Constitutionally Entitled to Direct Sunlight

Last year, a federal judge ordered the city and county of San Francisco to provide inmates with an hour of unfiltered sunlight every week. On Thursday, the city argued before the Ninth Circuit that there is no such constitutional right.

San Francisco Hall of Justice, which houses County Jail No. 4. (Courthouse News photo via Wikipedia)

SAN FRANCISCO (CN) — A federal judge wrongly ordered two San Francisco county jails to provide an hour of access to outdoor sunlight per week to pre-trial inmates locked up for more than four years, an attorney for the city argued before three Ninth Circuit judges Thursday.

“There is no per se constitutional right to outdoor recreation under either the Eighth or the Fourteenth amendments,” Deputy City Attorney Kaitlyn Murphy said, referring to the U.S. Constitution’s prohibition on cruel and unusual punishment and its guarantee of the right to due process.

Murphy said the Ninth Circuit has consistently exercised restraint on the issue, finding the right to outdoor recreation to be “a fact specific inquiry depending on the circumstances of the jail and conditions of confinement for each inmate.”

Seven pretrial detainees held in County Jail No. 4 at the San Francisco Hall of Justice or County Jail No. 5 in San Bruno, California, sued the city and county in May 2019, claiming their lack of access to any kind of natural light violates their constitutional rights. 

U.S. Magistrate Judge Sallie Kim issued an order in February 2020 requiring the city to do two things — provide direct sunlight access to all pre-trial inmates incarcerated for more than four years, and allow inmates housed in solitary confinement for their own safety out of their cells five days a week for an hour of gym time.

The city appealed the part of Kim’s order pertaining to sunlight. Murphy said even though the city believes it provides inmates with adequate access to light and exercise, Kim acted prematurely by issuing a broad injunction to apply to more than 600 people being held in its county jails before deciding whether to certify a class in the case.

“The district court exceeded its authority by issuing a class-wide injunction prior to issuing class certification,” Murphy said, adding that even the seven named plaintiffs have not shown they were entitled to the injunction Kim issued.

According to their attorney Yolanda Huang, the inmates — 85% of whom are still awaiting trial — never get to go outside and spend years indoors under artificial light.

Huang said indoor exercise on its own is insufficient, and that she agreed with how Kim crafted the injunction to allow the city to provide indoor exercise so long as inmates also had access to the outdoors for an hour a week.

“Just because you have indoor exercise doesn’t mean you don’t have to let them exercise outdoors,” Huang said, citing the 2019 federal case Killensworth v. Godfrey.

Huang said Godfrey is just one of a “long-string of cases” finding deprivation of outdoor exercise as an ordinary condition of confinement to be cruel and unusual punishment.

She said it was important for the panel to understand that Kim made her ruling after personally inspecting the county jail cells, gyms, windows and air vents, and found them an insufficient substitute for the outdoors.

“I saw a couple of cases that said indoor exercise was insufficient when a prisoner had to use a narrow hallway and there wasn’t really room for meaningful exercise. Is there any case focusing on sunlight? Circuit Judge Sandra Segal Ikuta asked.

The George W. Bush appointee was joined on the panel by Circuit Judge M. Margaret McKeown, a Clinton appointee, and Circuit Judge Daniel Bress, a Trump appointee.

In response, Huang again pointed to Godfrey, as well as LeMaire v. Maass, which “specifically stated that long term denial of outdoor excise is unconstitutional.”

She also noted that California state prisons must provide three hours of outdoor exercise a week, a standard taken from the district court’s ruling in Toussaint v. Rushen.

That standard applies to prisons, not county jails, Murphy said on rebuttal.

Both Ikuta and Bress noted the paucity of cases finding a constitutional violation in the denial of outdoor exercise.

“It’s a difficult argument to make. I don’t think we’ve ever said it was a per se violation,” Bress said.

Ikuta noted that while the Ninth Circuit held in Shorter v. Baca that jail officials are required by the Constitution to provide inmates with “outdoor recreation activities,” it also included the caveat “or otherwise meaningful recreation.”

Shorter v. Baca didn’t require outdoor recreation either,” she said.

Huang said Baca only allows jails to deny outdoor exercise when inmates are violent toward correctional officers or others, and not as an ordinary condition of confinement.

The panel took the arguments under submission.

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