federal judge partially revives prisoner’s lawsuit regarding black panther party ten-point program

by Tim Phillips

In a case decided two weeks ago, Judge Richard Posner partially revived Wisconsin inmate Toni Toston’s lawsuit against prison officials regarding harsh punishment he endured for possessing the Black Panthers’ Ten-Point Program. With respect to Toston’s free speech claim, Judge Posner affirmed the district judge’s grant of summary judgment in favor of prison officials. Posner revived, however, Toston’s due process claim that the prison deprived him of liberty without sufficient notice about what conduct could result in such punishment.

For copying the Ten-Point Program and putting it in the footlocker in his cell, Toston was found guilty in a prison disciplinary proceeding of possession of gang literature. The punishment was 90 days of confinement in segregation. Strangely, the prison previously permitted him to buy a copy of To Die for the People: The Writings of Huey P. Newton (1972), in which the Ten-Point Program appeared, and the prison library allowed inmates to borrow two other books that included the Ten-Point Program.

Yet Posner wrote in his decision that “the Ten-Point Program could be thought by prison officials an incitement to violence by black prisoners.” In this specific case, officials apparently suspected that Toston’s motive in copying the Ten-Point Program was gang-related:

The connection between the plaintiff’s copying the Ten-Point Program … and gang activity may seem tenuous, but the defendants argue that the likeliest reason the plaintiff copied the Ten-Point Program was to show it to inmates whom he hoped to enlist in a prison gang, a local cell as it were of the Black Panthers; the Ten-Point Program would be the gang’s charter.

With respect to Toston’s punishment of segregated confinement, however, Posner decided the prison may have deprived Toston of liberty “without fair notice of the acts that would give rise to such deprivation.” As the district judge “made no findings” regarding whether Toston’s period of segregated confinement was protracted or the conditions in segregation were unusually harsh, Posner sent Toston’s due process claim back to that judge for further action consistent with Posner’s opinion.

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