A federal judge has called out the Colorado Department of Corrections for using “patently-absurd” arguments – like labeling cheerleading as a sadistic practice – to justify withholding racy images from an inmate. Further, the judge suggested the state deliberately misapplied its own policy just to censor the items.

Last month, U.S. District Court Senior Judge Marcia S. Krieger ruled in favor of Henry Lee Griffin Jr., who resided at the Buena Vista Correctional Facility in 2016 when the prison decided to confiscate the racy and erotic photos of women Griffin had ordered. While the Department of Corrections’ Administrative Regulation 300-26 bars mail containing nudity or sexually explicit conduct, certain images of Griffin’s did not feature such content. Krieger determined the facility violated Griffin’s First Amendment rights when it withheld four images.

One month later, the judge charged the state with not only misinterpreting its own policy, but deciding from the start to censor the pictures and considering the written policy as an afterthought.

“The Court continues to be concerned,” she wrote in a March 19 order, “that, rather than applying the definitions of AR 300-26 to the subject photographs, the Defendants instead first concluded that the photos were too ‘suggestive’ and should be censored, then set about finding a justification within AR 300-26 to support that conclusion.”

Initially, Krieger found on Feb. 2 that the department’s interpretation of its policy would necessarily lead to confiscation of non-sexually explicit images, including ones depicting, for example, the “quadrennial hilarity of prospective presidential candidates photographed gamely attempting to eat a corn-dog-on-a-stick at the Iowa State Fair.” 

At the time, she decided Griffin was entitled to a favorable judgment on his claim, but he had not formally asked for that outcome. She gave the government 14 days to argue why she should not rule in Griffin’s favor.

Parts of the state’s written response elicited a harsh critique from the judge. Among other points, Attorney General Phil Weiser’s office contended that the images were “strongly sexually suggestive,” and the department should receive the benefit of the doubt in deeming them sexually explicit.

“While this image of cheerleaders does not depict any overtly sexual acts,” Weiser’s office wrote of one photo, the cheerleaders posed “in a manner that is suggestive of sexual intercourse. Moreover, the purpose of cheerleading is to display young women in revealing costumes, and it could reasonably be interpreted to be a ‘sadistic practice’ that falls under the definition of Sexually Explicit Conduct.”

Krieger dismissed that description as an example of the government “present[ing] arguments that distort the factual record and the language of AR 300-26, sometimes in patently-absurd ways.”

However, the judge sided with the state after it urged her to reverse her prior decision to deny qualified immunity to the corrections officers. Qualified immunity is a judicial doctrine that generally shields government employees from liability, unless they violate a clearly-established legal right.

The Department of Corrections believed its employees were entitled to qualified immunity because no other court decision existed to give notice that withholding images in a similar fashion constituted a violation of legal rights. In the absence of a federal appellate ruling to set a “bright line” on the application of AR 300-26, Krieger wrote, qualified immunity must apply to the corrections workers in Griffin’s case.

Although the prison violated Griffin’s constitutional rights in this instance through its application of AR 300-26, the judge previously declined to find that the policy itself violated the First Amendment. Corrections officials are allowed to regulate correspondence to inmates if the goal is to prevent the disruption of prison operations.

“Incoming or outgoing non-privileged mail may be censored for legitimate security reasons. However, mail may not be censored simply because it is critical of prison officials or because prison officials disagree with its content,” the American Civil Liberties Union advises those who are incarcerated.

Krieger’s ruling this month bars Griffin from pursuing monetary damages against the corrections workers – which would have been limited to $1 – but ordered the Department of Corrections to return the four disputed images to Griffin within seven days. Griffin prevailed while representing himself, which attorneys previously told Colorado Politics was an uncommon feat.

The case is Griffin v. Gorman et al.