On December 20, 2018, the Ninth Circuit Court of Appeals decided two related cases involving a Bureau of Prisons (“BOP”) regulation governing threats made by prison inmates. BOP Prohibited Acts Code 203 (“Code 203”) prohibits prisoners from “[t]hreatening another with bodily harm or any other offense.” (28 C.F.R. section 541.3.)  The BOP accused Mark Alan Lane of sending threatening letters from prison and consequently disciplined Lane under Code 203. The Ninth Circuit addressed Lane’s consolidated appeal pertaining to allegedly threatening letters Lane sent between 2008 and 2010 in Lane v. Salazar.[1] Lane v. Swain[2] concerned Code 203 discipline stemming from allegedly threatening letters Lane sent from 2012 to 2013.


In February 2002, Lane was sentenced to 360 months in prison after being convicted for drug and money laundering offenses. In 2008, Lane wrote a letter as part of an appeal process that seemed to threaten “a Guard’s Life.”  As a result of this letter, Lane received an incident report for violating Code 203.  Lane protested at a hearing that he was not threatening anyone in the letter, but Lane was sanctioned at a December 2008 disciplinary hearing under Code 203.  The pattern repeated in 2009 and in 2010, with Lane making statements in outgoing letters threatening violence against persons, asserting at disciplinary proceedings that his letters were not intended as threats, but ultimately being sanctioned and punished pursuant to Code 203.

After exhausting his administrative remedies with respect to each of the three disciplinary proceedings, Lane filed pro se habeas corpus petitions pursuant to 28 U.S.C. section 2241 in the United States District Court. The District Court denied the petitions, finding that “some evidence” supported the BOP’s decisions.  On appeal, the Ninth Circuit in Lane v. Feather[3] determined that the term “threat” as used in Code 203 should be interpreted to prohibit all threatening statements, “whether they amount to true threats or not.”  The Ninth Circuit next found Code 203 could only be valid if it satisfied a prison regulation test set forth by the United States Supreme Court in Procunier v. Martinez,[4] and remanded the matter to the District Court.  The District Court subsequently held that Code 203 satisfied the Procunier test and again denied Lane’s petitions.  Lane filed a consolidated appeal contending that Code 203, construed to apply to non-true threats, was unlawfully broad and vague.


Lane argued on appeal that Code 203 did not satisfy the Supreme Court’s two-part test in Procunier.  The Ninth Circuit explained that Procunier struck down California regulations allowing censorship of letters that “unduly complain,” “magnify grievances,” or “expres[s] inflammatory political, racial, religious or other views or beliefs” in correspondence between inmates and non-inmates. Procunier requires that where a regulation restricts prisoners from exercising their First Amendment right to send outgoing mail to non-prisoners, that regulation must (1) “further an important or substantial governmental interest unrelated to the suppression of expression” and (2) the restriction must “be no greater than is necessary” to protect that interest. The Supreme Court had identified “the preservation of internal order and discipline, the maintenance of institutional security against escape or unauthorized entry, and the rehabilitation of the prisoners” as relevant government interests.  A regulation authorizing prisoner mail censorship must further one or more of these interests to satisfy Procunier.

The Ninth Circuit here agreed with the District Court’s conclusion that, by prohibiting threats of bodily harm, Code 203 enhanced security and order within the prison. The Ninth Circuit observed that courts are encouraged to defer to corrections officials on such judgments due to their expertise and “day-to-day experience”[5] in such matters.  The Court also found that prohibiting bodily harm served the legitimate government interest in rehabilitation. The Court noted that a government affidavit explained that part of the rehabilitation process was “to help inmates transform their anger into nonviolent communication.” The Court agreed that by imposing reasonable sanctions as a consequence of violent speech, prison officials were furthering that effort at redirection and rehabilitation.

For the second part of the Procunier test, the Court determined that the government had shown that Code 203 was necessary to curb threats in outgoing mail, and that the provision constituted a “close fit” with its legitimate government interest.  The Court noted that inmate complaints and similar expressions of dissatisfaction were still protected speech.  Lane also argued that only true threats were punishable, leaving out rhetoric and hyperbole, but the Court explained that it was bound by Feather, in which a prior panel of the Ninth Circuit had concluded that a threat under Code 203 included non-true threats.

The Court also explained that whether the threats were true could not be “a litmus test for punishment, as prison officials should not be placed in the position of determining the credibility of what could reasonably be viewed as a threat. Indeed, Procunier warned that prison administrators must not ‘be required to show with certainty that adverse consequences would flow from the failure to censor a particular letter.  Some latitude in anticipating the probable consequences of allowing certain speech in a prison environment is essential to the proper discharge of an administrator’s duty.’  416 U.S. at 414.”  The Court of Appeals added that even if a threat was not intended to be acted upon, threats of bodily harm contributed to an atmosphere of disrespect and hostility.  Such threats of bodily harm were counter to penological purposes and were legitimately curtailed.  The Court thus concluded that BOP’s prohibition on threats of bodily harm addressed legitimate penological concerns in a manner that was sufficiently narrow to satisfy constitutional concerns.

Lane also argued that Code 203 was void for vagueness under United States v. Makowski.[6]  The Court disagreed, finding the regulation did not prohibit threats generally, but rather was limited to threats of bodily harm or other offenses violating the criminal code or BOP.  The Court also found the way BOP used the term threat generally comported with a common-sense understanding of a threat, negating the notion of the provision being too vague.

The Court further found that the evidence against Lane was sufficient to show he violated Code 203. The Court explained that the United States Supreme Court in Superintendent v. Hill determined that due process requirements (as relevant to the disciplinary context which the defendant there and Lane here faced) were satisfied if there was “‘some evidence from which the conclusion of the administrative tribunal could be deduced.’“[7] The relevant question thus was whether there was any evidence in the record that could support the conclusion reached by the disciplinary board. The Ninth Circuit found that from the prison’s perspective, Lane’s letter threats to kill people “reasonably constituted a threat of bodily harm” and thus met the “some evidence” standard. The Ninth Circuit accordingly affirmed.

Lane v. Swain

Lane was similarly expressive in outgoing mail letters in later years. He was accused by the BOP of sending three different threatening letters between 2012 and 2013 from prison and was disciplined under Code 203 for these communications also for “[t]threatening another with bodily harm or any other offense.”  Lane was sanctioned with the revocation of good time credits at the time of each threatening letter.  Lane filed three 28 U.S.C. 2241 habeas corpus petitions challenging the sanctions.  The court denied his petitions.  Lane appealed, arguing that the term “another” and the phrase “any other offense” were so broad and vague as to violate his First Amendment rights.

The Ninth Circuit Court of Appeals held that when read reasonably in the context of the prison setting, and limiting the phrase “any other offense” to criminal offenses or violations of BOP rules, Code 203 was sufficiently narrow and clear to protect inmates’ First Amendment rights.

Lane did not contest the District Court’s conclusion that Code 203 addressed both prison security and prisoner rehabilitation as legitimate interests under the Procunier test, but contended Code 203 was overly broad such that it violated Procunier’s second prong.  Specifically, Lane said Code 203 did not narrowly define the term “another.” Lane contended that an inmate could be disciplined for threatening, for example, a fictional character.  However, the Ninth Circuit found such an interpretation “would defy common sense” because there was no sign the BOP ever took such a broad view of Code 203 and ignore the regulation’s federal prison context.  The term “another” was commonly understood, the Court explained, to be another living person, and was not impermissibly broad.

Lane also argued that “any other offense” was without limitation, but the Court held that the regulation was reasonably construed as threatening either a criminal violation or an offense punishable under BOP regulations. The Court further found that Procunier supported this interpretation in part because Code 203’s language was a close match for language in the regulation that Procunier reviewed.  The Court further explained that Code 203 addressed legitimate governmental interests, since allowing inmates to threaten a warden, prison guard, or any other person with bodily harm or other criminal conduct was clearly unacceptable.  Considering Code 203’s limited language, understood in the context of federal prisons, the Court found Code 203 passed Procunier’s two-pronged test.  Accordingly, the Court affirmed.


These two Ninth Circuit decisions suggest that BOP Code 203 provides an effective bulwark against prisoner mail threats and support agency officials where “the preservation of internal order and discipline, the maintenance of institutional security against escape or unauthorized entry, and the rehabilitation of the prisoners” are at issue. The Ninth Circuit addressed the brief language of Code 203 thoroughly and determined that it applied to any such threats, prisoner intentions notwithstanding. The Court did not find Code 203’s text to be vague and expressed court deference to the experience and expertise of prison officials in such matters.  Whether this has an impact on reducing such prisoner communications or subsequent petitions arguing against regulatory disciplinary actions based upon threats to personal safety remains to be seen.  However, it is refreshing to see a decision from the Ninth Circuit supporting law enforcement’s legitimate interest in promoting institutional security.

As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446–1400 or via email at jrt@jones-mayer.com.

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[1] 2018 U.S. App. LEXIS 35861 (9th Cir. Dec. 20, 2018).

[2] 2018 U.S. App. LEXIS 35855 (9th Cir. Dec. 20, 2018).

[3] 610 F. App’x 628, 629 (9th Cir. 2015).

[4] 416 U.S. 396, 413 (1974).

[5] Hall v. Curran, 818 F.2d 1040, 1043 (2nd Cir. 1987).

[6] 120 F.3d 1078, 1080-81 (9th Cir. 1997).

[7] 472 U.S. 445, 455-56 (1985).