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Cooper v. Pate

November 5, 1963


Author: Duffy

Before DUFFY, KNOCH and SWYGERT, Circuit Judges.

DUFFY, Circuit Judge.

The plaintiff's complaint is styled by him "Petition for Relief Under Civil Rights Act," and alleges that the defendant, Frank J. Pate, Warden of the State Penitentiary, where plaintiff is confined, and the defendant, Joseph E. Ragen, the Illinois Director of Public Safety, "will not allow petitioner to purchase" certain religious publications and materials disseminated by the Black Muslim Movement.

Plaintiff alleges he is being "segregated" and being deprived of his rights to worship "in violation of certain provisions of the laws of Illinois and of the Fourteenth, Fourth and Eighth Amendments to the Constitution of the United States." He claims he is discriminated against because other prisoners may obtain the King James and Revised versions of the Bible, and he is unable to obtain a copy of the "Quran."

The Attorney General for the State of Illinois asks us to take judicial notice of certain social studies which show that the Black Muslim Movement, despite its pretext of a religious facade, is an organization that, outside of prison walls, has for its object the overthrow of the white race, and inside prison walls, has an impressive history of inciting riots and violence.

In the District Court, the plaintiff's cause was dismissed on motion of the defendants. Thereafter, plaintiff was permitted to file a notice of appeal in this Court in forma pauperis, and the record on appeal was filed in this Court without the payment of costs. The case was submitted to us on the briefs and without oral argument.

Plaintiff's principal complaint seems to be that he was placed in solitary confinement because he insisted upon obtaining a Muslim bible, termed by him "Quran" and language books "Arabic" and "Swahli." At another point, plaintiff insists "that he be permitted to obtain the Holy Quran from * * * [a bookstore in New York] * * * translated by Muslana Muhammad Ali."

The probable basis for plaintiff's trouble with prison officials appears in his statement "* * * Then warden [Joseph E. Ragen] * * * confided * * * he feared I was an organizer and had ulterior motives. * * * I was always surrounded by * * * hundred to 150 inmates, (mostly colored and Mexican) * * *. He feared that I and my associates would be able to control his prison."

We consider first whether we should take judicial notice of official or otherwise accredited social studies of the Black Muslim Movement. We have distinguished authority for so doing. In Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 99 L. Ed. 873, the Supreme Court overturned Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256, and held the Equal Protection clause of the Fourteenth Amendment prohibited segregation in public schools although the two races were given "equal" facilities, etc. The Court relied upon accredited social studies and took judicial notice thereof, citing them at length and digesting them in footnotes.

In West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S. Ct. 578, 81 L. Ed. 703, the Court overruled Adkins v. Children's Hospital, 261 U.S. 525, 43 S. Ct. 394, 67 L. Ed. 785, and held constitutional state laws fixing a minimum wage for women. In writing the opinion, Chief Justice Hughes took judicial notice of, and accepted social economic studies on, the effect of a depressed wage level upon the health and lives of women workers.

In Beauharnais v. People of State of Illinois, 343 U.S. 250, 72 S. Ct. 725, 96 L. Ed. 919, the famous "White Circle League" case, a question of federal constitutional law was presented in which the right of freedom of speech collided with the right of a state to prevent or minimize interracial violence. Again, the opinion of the Court cites and summarizes in footnotes, certain social studies.

Under the ruling of the Beauharnais case, supra, it seems clear that Illinois may suppress movements that would otherwise be constitutionally protected when they have violence as their object or an even reasonably likely consequence; further, that the Supreme Court of the United States will take judicial cognizance of authoritative racial studies precisely as though their content had been admitted as evidence in the case.

On May 24, 1962, the Security Section, Intelligence Division, Bureau of Inspectional Services, of the Chicago Police Department, completed an official study entitled "Muslim Cult of Islam - Nation of Islam, 5335 So. Greenwood Ave., Chicago, Illinois." The complete report is reprinted in the Government's Appendix in the instant case.

The study declares at page 3, "Federal and State prisons continue to have serious problems involving Muslim inmates. The State Prison in Fulton, New York, has a 50% Negro population. Twenty-five percent of this number claim Muslim membership insisting on religious recognition and special privileges which would obviously break down discipline. Muslim violence also took place at Federal prisons in Terre Haute, Ind., and at Atlanta, Ga. Stateville and Joliet penitentiaries in Illinois continue to have some ...

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