Likelihood of Success/Serious Questions to the Merits
The second prong of the requirement for a preliminary injunction considers likelihood of success or the existence of serious questions going to the merits plus the balance of equities between the parties.
DOCS asserts that plaintiffs cannot avail themselves of the "serious questions" portion of the preliminary injunction standard. Relying on Union Carbide Agr. Products Co., Inc. v. Costle, 632 F.2d 1014, 1018 (2d Cir. 1980), cert. denied, 450 U.S. 996, 68 L. Ed. 2d 196, 101 S. Ct. 1698 (1981), defendants contend that, when a party seeks to enjoin "governmental action that is in the public interest," the moving party must show a likelihood of success on the merits before an injunction will be issued. In response, plaintiffs rely on Haitian Centers Council, Inc. v. McNary, 969 F.2d 1326, 1338-1339 (2d Cir. 1992), rev'd and remanded on other grounds, 113 S. Ct. 3028 (1993), to suggest that the Court of Appeals for this Circuit has moved away from the use of the higher standard expressed in Costle.
Both sides have failed to explore the different settings presented by the cases they rely on. In Haitian Centers Council, the court distinguished the case of a government agency acting pursuant to a broad grant of authority (such as the power to exclude aliens granted by immigration laws) from the case of a government agency acting pursuant to the narrower grant of authority pursuant to a specific state or federal statute. 969 F.2d at 1339. Where an agency is acting pursuant to a broad grant of authority, the court said that "no party has an exclusive claim on the public interest." Id. The Court held that the "'likelihood of success' prong need not always be followed because a movant seeks to enjoin government action." Here, defendants justify their conduct on the grounds that they are acting in the public interest, broadly defined, and have not pointed to any specific "statutory or regulatory scheme" requiring their regulations. Plaza Health Lab., Inc. v. Perales, 878 F.2d 577, 580 (2d Cir. 1989); see generally Toy Manufacturers of America, Inc. v. Richard Blumenthal, 806 F. Supp. 336, 340 n.3 (D. Conn. 1992), aff'd, 986 F.2d 615 (2d Cir. 1993). Accordingly, plaintiffs may avail themselves of either prong of the test. On the facts presented here, however, plaintiffs are entitled to a preliminary injunction under either analysis.
With respect to plaintiffs' RFRA claims, the first question is whether or not the regulations impose a substantial burden on plaintiffs' First Amendment rights. As discussed above, prohibiting the plaintiffs from holding beads in their hands so that the beads might be seen and counted constitutes a substantial burden on their practice of religion.
Once plaintiffs have shown that their rights are substantially burdened, defendants must justify this burden on plaintiffs' religious practice by showing that the restrictions further a compelling interest and are the least restrictive alternative. Hamilton, 863 F. Supp. at 1022.
Defendants have established a compelling interest at stake here: the undisputed evidence establishes that gang-related violence poses a threat to the security of guards and other prisoners. The existence of a separate and independent system of authority directly threatens the security and stability of the institution as a whole, and it is undisputed that wearing identifying colors in the forms of beads provides an organizing device which is subversive of prison authority.
Since beads are used as a symbol of identity, unity, and authority by various gangs, prison officials have a compelling interest in restricting the use of the beads.
The gangs pose a direct threat to prison authority as catalysts for violence and disorder, and prison officials are entitled to take measures to inhibit gang activity.
While defendants have established a compelling need to prevent the use of dhikr beads by gang members to display their colors, they have not shown a likelihood of success in demonstrating that the same objective cannot be accomplished by an alternative which is less restrictive of plaintiffs' rights, namely, the prohibiting of the display of dhikr beads except in connection with the practice of dhikr.
The only reservation defendants articulate concerning a prohibition which hinges on the use of the beads by practicing Muslims in the course of reciting the names of Allah is that any display even for religious purposes will cause gang members to steal the beads and then re-string them and use them to display gang colors. This argument rests on an unproven assumption about the lack of availability of beads or of other means of displaying gang colors which is simply not borne out by the record in this case. Even the hypothesis that gang members will re-string plaintiffs' black beads with beads of other colors assumes that gang members can readily obtain beads in colors other than black without difficulty, using plaintiffs only as a source of black beads. The idea that gang members will adopt the color black alone to display their allegiance or engage in the practice of dhikr as a subterfuge for displaying their colors is not seriously advanced here and is, in all events, an inadequate basis for rejecting the least restrictive alternative proposed for reasons stated by Judge Sotomayor in Campos, 854 F. Supp. at 209:
The weakness of defendants' position is evident. The possibility that beads may be restrung in order to reflect gang colors and gang affiliation in no way prevents DOCS personnel from confiscating such beads. In that case, beads would no longer represent, or be used for, religious-devotional purposes. Defendants' further concern that some currently non-existent inmate group may in the future form and adopt colors, or that existing gangs may change colors, to coincide with the colors of plaintiffs' Santeria beads, and then choose to wear them under their clothing without public display is nothing less than "pure speculation."