February 1, 2010
CRAIG ORLER, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 2010
Before Judges Lisa and Alvarez.
Craig Orler, an inmate at the New Jersey State Prison, South Woods, appeals the New Jersey Department of Corrections' (DOC) decision to confiscate a book titled Victory or Valhalla: The Final Compilation of the Writings of David Lane. Orler contends that the decision was "arbitrary and capricious, and not reasonably related to legitimate penological interests." After consideration of the arguments made and our review of the record, we affirm.
On November 26, 2008, while Orler was housed at Riverfront State Prison, a mailroom officer confiscated the book, indicating that it was "[n]ot authorized for retention/receipt." On November 28, 2008, Orler appealed the confiscation to the prison administrator, asserting that the book did not violate relevant administrative standards or other law. On December 4, 2008, the confiscation was affirmed because it was "considered white supremacy material which is not permissible."
Pursuant to N.J.A.C. 10A:18-4.9, Orler may not receive publications within these "categories:" material that is detrimental to the security and/or order of the correctional facility because it incites violence based upon race, religion, creed or nationality and a reasonable inference can be drawn, based upon the experience and professional expertise of correctional administrators, that it may result in the outbreak of violence within the facility;
5. The publication incites violence, or destructive or disruptive behavior toward:
i. Law enforcement officers;
ii. Department of Corrections personnel; or
iii. Correctional facility inmates, visitors and/or volunteers . . .
The book, which contains white supremacist material characterized by Orler as merely "Euro-centric," falls within the category of excluded literary works. Possession of white supremacist writings poses an obvious threat to the security of a prison and the safety of its staff and inmates. It is an appropriate basis for confiscation. Even a ban on religious books that promote racial violence is constitutionally permissible. Borzych v. Frank, 439 F.3d 388, 390-91 (7th Cir. 2006). Orler claims this work is religious, and that therefore his possession of it is unobjectionable.
Orler does not dispute the DOC's assertion in its brief that Lane "was a member of and organizer for the Ku Klux Klan, the Aryan Nation, and other white supremacist groups." Neither does he deny that in the mid-80's Lane was a founder of "a terrorist group called the Bruder Schweigen (The Silent Brotherhood), which later became known as the Order. The Order embarked on a crime spree that included bank robbery, counterfeiting, assault, and murder." Wood v. Maine Dep't of Corr., 2007 U.S. Dist. LEXIS 81146 at 5 (D. Me. 2007).*fn1 Lane was incarcerated for, among other things, conspiring to murder a Jewish radio talk show host. Ibid. Lane advocated violence for the purpose of attaining white supremacy, and condoned terrorist-type activities to achieve that goal. Ibid.
We "will reverse the decision of an administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). The decision to confiscate this work does not appear to be arbitrary, capricious or unreasonable, and was based on substantial evidence in the record. This is the type of publication precisely within the regulation's scope, because security concerns in prisons are legitimately paramount.