Interesting Religious Accommodation Case

It’s Jama v. United States (W.D. Wash. Mar. 2, 2010):

This controversy stems from a July 2006 raid of Plaintiff’s residence by federal and local law enforcement authorities. Officials were searching for evidence relating to the importation and distribution of khat, a leafy herb indigenous to the Horn of Africa and the lower Arabian Peninsula, where residents have long chewed the plant’s leaves for its stimulative effects. Khat itself is legal in the United States, but the plant’s stimulative effects come from cathonine and cathine, which are classified as Schedule I and IV drugs, respectively. Khat is typically consumed fresh, because the cathinone breaks down into cathine within two to three days after harvesting. When a person ingests cathonine by consuming fresh khat, he is therefore violating American drug laws….

Plaintiff was not a suspect, and was not indicted by the grand jury. Because one of the suspects shared her apartment, however, her residence was among those be searched: Plaintiff’s uncle Abdigafar Ali Hassan had picked up one package believed to contain khat at a local FedEx facility on May 18, 2006, and a second package on July 13, 2006….

The search was conducted in the early-morning hours of July 26, 2006…. Plaintiff was in her bedroom when police entered her home. She “heard a crash and they barged into my home.” Dressed in a night gown without a bra or underwear beneath, she walked out of her bedroom, and saw men in black running up the stairs toward her with their guns drawn. Plaintiff states that she “did not hear the people say they were police officers or why they were there.” Officers forced her to the ground and tied her hands behind her back. At some point, it was made clear to Plaintiff that her home had been entered by law-enforcement officers.

Officers detained a total of five individuals, including Plaintiff, while they searched Plaintiff’s apartment for evidence relating to khat distribution. The other four detained individuals were men, and two of them were not members of Plaintiff’s family. This caused Plaintiff distress because her Muslim faith prohibits her from appearing in a state of undress or from appearing without a head scarf before unrelated males. Plaintiff is not a fluent English speaker, so she asked her uncle Mr. Hassan, who was also detained, to request a cover for her hair and body from police officers. Defendant Smith refused Plaintiff’s requests for modest clothing, and photographed her in the nightgown and without a head scarf. After taking the photographs, Defendant Smith placed a loose piece of cloth over Plaintiff’s head. Approximately one hour after the officers entered Plaintiff’s apartment, they moved the detainees outside. Plaintiff was still wearing nothing more than her nightgown. Because Defendant Smith had failed to secure the piece of cloth, it fell off Plaintiff’s head as she was walking outside. Plaintiff, whose hands were still tied behind her back, was unable to grab the cloth and cover herself.

Officers instructed Plaintiff and the male detainees to move outside and sit on the ground, from which position they were visible to neighbors. Mr. Hassan again explained to police officers that Plaintiff’s religion forbade her from appearing uncovered before unrelated men, and asked that she be allowed to remain inside the apartment, or at least behind the building, where she would not be visible to neighbors. Officers refused the request. Plaintiff remained outside for several hours, uncovered except for the night gown, while officers searched her apartment for evidence relating to khat. They found none….

This Court follows the emerging trend of legal authority in holding that Defendants Hacket and Smith are entitled to assert qualified immunity [against the plaintiff’s Religious Freedom Restoration Act claim]. See Rasul v. Myers, 563 F.3d 527, 533 n.6 (D.C. Cir. 2009) (“[D]efendants are entitled to qualified immunity against the plaintiffs’ RFRA claim.”); Keen v. Noble, 2007 WL 2789561, at *9 (E.D. Cal. 2007) (“Plaintiff’s RFRA claim …is dismissed because the defendants are entitled to qualified immunity”); Wong v. Beebe, 2007 WL 1170621 (D. Or. 2007) (“[Defendant] is entitled to summary judgment on the [RFRA claim] ….”)….

Assuming arguendo that the issue of qualified immunity in the context of a claim under the Religious Freedom Restoration Act comes before this Court as a matter of first impression, Plaintiff’s argument … fails. The same competing public interests — on the one hand, holding public officials accountable when they exercise power in an illegal manner, and on the other hand, protecting public officials from harassment and distraction when they perform their functions reasonably — apply to RFRA claims as to Bivens claims and claims under the Civil Rights Act. Moreover, the seminal language from the Supreme Court suggests that the defense is equally available against claims arising from the Constitution and against those claims arising from statute. See Pearson v. Callahan, 129 S.Ct. 808, 815 (2009) (“The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” (emphasis added).

The Religious Freedom Restoration Act provides that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability[.]” 42 U.S.C. § 2000bb-1(a). The Act creates an exception, however, allowing the Government to “substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person (1) is in the furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

Plaintiff argues that Defendants Hacket and Smith violated her rights under the Act by refusing her requests for a headscarf and for clothing that was more modest than her nightgown, and by forcing her to remain in her relative state of undress in the presence of unrelated males. Plaintiff argues that these refusals represent a substantial burden of her statutory rights because her Muslim beliefs require that she dress more modestly in the presence of unrelated males. According to Plaintiff, no compelling governmental interest justified the burden once all the suspects inside her apartment had been detained and the apartment itself secured. As Plaintiff argues, “[She] and her family repeatedly informed Defendant Hacket, Defendant Smith, and the other officers of the religious importance of proper clothing and a head scarf, after her apartment and all persons inside had been secured.

Defendants focus most of their attention on whether Plaintiff’s allegations constitute the deprivation of a statutory right that was clearly established at the time of the search. As Defendants state, “Plaintiff has not pointed to even one case in which a court has applied RFRA to a situation in which an individual was detained by law enforcement and, during the detention, was prevented by law enforcement from engaging in the free exercise of his or her religion.” Plaintiff disagrees with Defendants’ characterization of the relevant case law, citing Hall v. Griego, 896 F. Supp. 1043 (D. Colo. 1995), and Luckette v. Lewis, 883 F. Supp. 471 (D. Ariz. 1995). In each case, prison guards prohibited prisoners from wearing certain headcoverings that the prisoners claimed their religious beliefs required them to wear. In Hall, the trial judge denied the federal defendants’ motion for summary judgment. Hall, 896 F. Supp. at 1048. In Luckette, the trial judge ordered prison officials to “meet with the plaintiff and … agree on an appropriate headcovering which will not present safety concerns,” but left open the possibility that prison-safety requirements might preclude the plaintiff “from wearing …duly designated dangerous headcoverings.”

Those cases are clearly distinguishable from this case, however. Both dealt with long-term deprivations of a person’s religious practices in a place of long-term custody. In a prison setting, public officials have the responsibility of creating and maintaining procedures and facilities that allow prisoners to exercise their religious beliefs. No such obligation exists while police are performing searches and making arrests. In both of the cases that Plaintiff cites, prison officials prohibited prisoners from wearing their headcoverings throughout the day, while eating meals, enjoying air with other prisoners, and generally passing time. In Plaintiff’s case, she was only prohibited from wearing her head scarf for approximately four hours, while officers performed a search of her apartment.

In short, the cases are sufficiently distinguishable that this Court must grant the motion for summary judgment of Defendants ….. The Court cannot say that the purported right of a person to wear religious covering during a search of … her home was “clearly established” at the time of the search. The Court therefore declines to reach the issue of whether Plaintiff has alleged the violation of a constitutional or statutory right. See Pearson (holding that a trial court can properly refuse to consider whether a plaintiff has alleged the violation of a plaintiff’s constitutional or statutory rights if the court concludes that those rights were not clearly established at the time of the alleged deprivation).

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