CHARLES MACK, Appellant v. JOHN YOST, Warden; TIM KUHN, Associate Warden; JEFFREY STEPHENS, Trust Fund Officer; SAMUEL VENSLOSKY, Correctional officer, sued in their individual capacities; DOUG ROBERTS, Correctional Officer, sued in their individual capacities
No. 21-2472
United States Court of Appeals for the Third Circuit
March 21, 2023
2023 Decisions 209
Before: JORDAN, HARDIMAN, and SMITH, Circuit Judges
Argued on September 7, 2022; Filed March 21, 2023; On Appeal from the United States District Court For the Western District of Pennsylvania (D.C. No. 3-10-cv-00264); District Judge: Honorable Kim R. Gibson
John M. Hagan
Jessica Moran [ARGUED]
K&L Gates
210 Sixth Avenue
Pittsburgh, PA 15222
Counsel for Appellant
Christopher E. Kemmitt
Michael Skocpol [ARGUED]
NAACP Legal Defense & Educational Fund
700 14th Street, NW - Ste. 600
Washington, DC 20005
Adam Murphy
Samuel Spital
NAACP Legal Defense & Educational Fund
40 Rector Street - 5th FL.
New York, NY 10006
Samuel Weiss
Rights Behind Bars
416 Florida Avenue, NW - #26152
Washington, DC 20001
Counsel for Amicus Rights Behind Bars and NAACP Legal Defense & Education Fun
Office of United States Attorney
700 Grant Street - Suite 4000
Pittsburgh, PA 15219
Courtney Dixon [ARGUED]
United State Department of Justice
Civil Division, Appellate Staff
950 Pennsylvania Avenue NW
Washington, DC 20530
Counsel for Appellee
OPINION OF THE COURT
JORDAN, Circuit Judge.
“Among the most inestimable of our blessings,” said Thomas Jefferson, is that “of liberty to worship our creator in the way we think most agreeable to his will … .”1 That bedrock principle, enshrined in the Free Exercise Clause of the First Amendment, has since been reinforced through federal laws that guarantee prisoners the freedom to practice their faiths. Charles Mack, a former federal inmate and a devout Muslim, brought suit to vindicate that guarantee.
The resulting case has been before us three times already, and, at this point, Mack’s lone surviving claim arises under the Religious Freedom Restoration Act of 1993 (“RFRA”),
We agree with Mack that granting summary judgment was wrong. While, as a matter of law, qualified immunity can be asserted as a defense under RFRA, the officers have not – at least on this record – met their burden of establishing that
I. BACKGROUND
A. Factual Background2
Mack is a practicing Muslim and a former inmate at the federal correctional institution in Loretto, Pennsylvania. During his incarceration, he worked as a paid employee in the prison’s commissary between May and October 2009. He would stock the shelves and fill inmates’ orders by collecting commissary items. Mack was supervised by two correctional
Central to Mack’s observance of his Muslim faith is his obligation to pray five times a day. Those five daily prayers, each of which takes approximately five minutes, are supposed to be done at prescribed times. An imam provided Mack and other Muslim inmates with a prayer schedule tailored to their location in western Pennsylvania so that they knew exactly when to pray each day. Although the imam advised Mack that it was acceptable to catch up on his prayers at the end of the day if he was unable to pray on schedule, he was nonetheless expected to adhere to the prescribed times whenever feasible. On Fridays, Mack was also supposed to attend, with other Muslim inmates, a special prayer service known as Jumu’ah. When he prayed, Mack typically used a prayer rug. He could, in accordance with his faith, pray from wherever he was located in the prison, so long as he faced east when doing so.3
Because of his religious commitments, Mack was afforded some accommodations while working at the commissary. He was excused from handling pork products4
Most guards let Mack pray without incident. But, absent any written guidance from the prison on inmates’ rights of worship, Mack perceived his ability to practice his faith as depending on the goodwill of the individual guards. The guards at Loretto were aware of his faith, both because he regularly wore a religious head covering known as a kufi and because the prison chaplain kept a list of all the inmates who were practicing Muslims. Mack tried to stay mindful of the guards’ attitudes toward Islam and sought to avoid “inconveniencing” them. (J.A. at 125.) He believed that if one of them was hostile to his faith, and he crossed that guard by praying in front of him, “the negativity [was] going to come.” (J.A. at 125, 129.) Were that to happen, Mack worried, it could result in the guard finding some reason to discipline him, even if no legitimate reason existed, and he could get put “[i]n the
The “negativity” that Mack foresaw became a reality when his job brought him into contact with Roberts and Venslosky. As he perceived it – and as other inmates told him – they were “out to get [him] because [he] was a Muslim,” and they singled him out for disrespect and harassment accordingly. (J.A. at 206.) Although their actions were initially limited to some untoward “stares” and “looks,” they began more “direct[ly]” confronting him as time went on. (J.A. at 204-05.)
That “direct” confrontation was, for a while, limited to “snide remarks” mocking Mack’s adherence to Islam. (J.A. at 137.) For instance, Roberts repeatedly told Mack that he didn’t like him and specified, “I don’t like Muslims.” (J.A. at 202-04.) Similarly, Venslosky told other inmates that he disliked Mack because he was Muslim. Venslosky also “sarcastically asked Mack whether Muslim was a religion [sic].” (J.A. at 293.) In early October of 2009, things went “downhill” when Roberts said to Mack: “There is no good Muslim but a dead Muslim.” (J.A. at 159-161.) While Roberts was disparaging Mack, Venslosky would often sit back and grin, “egging him on” and expressing what Mack saw as tacit approval of Roberts’s conduct. (J.A. at 173-74.)
Of primary significance here, and in addition to the verbal harassment, Roberts and Venslosky would interfere with Mack’s efforts to pray during his commissary shifts. Mack sometimes delayed his prayers so that he could avoid any “foolishness” from them while he prayed. (J.A. at 136.) As he
Further harassment occurred toward the end of Mack’s time at the commissary. One Friday, as Mack left work for the Jumu’ah prayer service, Roberts surreptitiously put a sticker on Mack’s back. It said “I love pork bacon.” When Mack later confronted Roberts about the prank, Roberts did not dispute what he had done and told Mack, “You are not going to be here long,” which Mack understood as a promise that he would lose his commissary job. (J.A. at 174.)
Around that time, Mack decided to stop praying at the commissary. He believed Roberts and Venslosky “didn’t want to see” him praying, and, “after everything that was going on[,] only a fool would still try to be in their face and let[] them have any kind of ammunition to come at [him.]” (J.A. at 177-78.) Mack confided his predicament to an imam, who told him that
On October 21, 2009, less than two weeks after the sticker-on-the-back incident, Mack was fired from his commissary job. Venslosky, who carried out the termination, explained that Mack had violated the prohibition on bringing another inmate’s shopping slip into the commissary, which was a fireable offense.5 Mack denied the accusation and still does, which he describes as a “mere pretext” to justify his being fired “for seeking to practice the basic tenets of his Islamic faith through prayer while working in the commissary.” (J.A. at 290.)
B. Procedural Background
This is the fourth time this case has come to our Court. Mack’s lawsuit began in October 2010, when he filed a pro se complaint against Roberts, Venslosky, and other Bureau of Prison employees, alleging what we later construed to be causes of action under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), for First and Eighth Amendment violations, as well as a claim under the Religious Land Use and Institutionalized Persons
Mack then filed an amended complaint, asserting what the District Court took to be First Amendment retaliation and Fifth Amendment Equal Protection claims under Bivens and a claim under RLUIPA. Mack v. Yost, 979 F. Supp. 2d 639, 646, 649 (W.D. Pa. 2013). The defendants moved to dismiss, and the Court granted their motion. Id. at 644, 652. As relevant here, the District Court ruled that federal prisoners asserting claims like Mack’s could sue only under RFRA, not RLUIPA. Id. at 650. And under RFRA, the Court held, Mack failed to allege a substantial burden on his religious exercise since he was not “forced … to choose between following his religion and forfeiting benefits” or “pressured … to modify his religious behavior.” Id. at 650-51. Similarly, even if the claim was construed as one under the Free Exercise Clause, the Court said, Mack’s allegations were inadequate because he did not claim that the defendants “prevent[ed] [him] from exercising his religious beliefs” by, for instance, “den[ying] him the opportunity to pray.” Id. at 651-52.
When Mack again appealed, we affirmed in part and vacated in part. Mack v. Warden Loretto FCI (Mack II), 839 F.3d 286, 291 (3d Cir. 2016). We agreed with the dismissal of the Free Exercise and Equal Protection claims, but we revived the First Amendment retaliation claim, holding that such a Bivens claim was cognizable, adequately alleged, and, at the pleading stage, not barred by qualified immunity. Id. at 291,
Back at the District Court, the remaining defendants – Venslosky, Roberts, and one other guard – moved for summary judgment on the two surviving claims, but the Court denied their motion. See Mack v. Stevens, 2018 WL 4375083, at *1 (W.D. Pa. Sept. 13, 2018). Relying on our analysis in Mack II, it held that a reasonable jury could side with Mack on his RFRA claim and find that the defendants’ “anti-Muslim comments, conduct, and tacit approval created a hostile and harassing environment ‘substantial’ enough to dissuade Mack from practicing his religion by praying at work as he had prior to the harassment.” Id. at *5-6. The Court also concluded that the defendants were not entitled to qualified immunity on the First Amendment retaliation claim. Id. at *8.
The defendants appealed the part of the District Court’s order denying them qualified immunity on the retaliation claim, and we reversed. Mack v. Yost (Mack III), 968 F.3d 311, 314, 318 (3d Cir. 2020). We held that the claim was no longer cognizable as a Bivens action in light of the Supreme Court’s decision in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), which
Those two guards, the Defendants before us now, moved again for summary judgment on that claim, asserting – for the first time – that they are entitled to qualified immunity for their actions because they did not violate any clearly established rights.6 This time, the District Court granted their motion. It first concluded that qualified immunity is a defense to a RFRA claim. Then, on the merits, the Court held that it was not clearly established in 2009, when the Defendants’ conduct took place, that their harassing actions would violate RFRA. The Court observed that Mack had not cited any cases finding RFRA violations in factually similar circumstances, since the cases he offered all entailed a “direct, outright denial, or active limitation of a diet compelled by religious belief,” rather than the “indirect, mostly verbal conduct” that caused Mack to “voluntarily cease exercising a tenet of his faith.” (J.A. at 16.) By contrast, the Court considered the cases cited by the Defendants to be more analogous, cases in which
Mack has once again appealed. The NAACP Legal Defense and Education Fund, Inc. and Rights Behind Bars (“Amici”) filed an amicus curiae brief in support of Mack, and we granted them leave to present oral argument. We appreciate their participation.
II. DISCUSSION7
A. A Qualified Immunity Defense Is Available Under RFRA
“[T]he judicially created doctrine of qualified immunity” shields governmental officials from suit and from liability if their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Peroza-Benitez v. Smith, 994 F.3d 157, 164-65 (3d Cir. 2021).
In interpreting RFRA, we begin, as with any statute, with the text. Khan v. Att’y Gen., 979 F.3d 193, 197-98 (3d Cir. 2020). It states that the “[g]overnment shall not substantially burden a person’s exercise of religion … [unless] it demonstrates that application of the burden to the person – (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling
But we do not interpret statutes in a vacuum, and Congress does not legislate in one. Rather, “Congress is presumed to enact legislation with knowledge of the law and a newly-enacted statute is presumed to be harmonious with existing law and judicial concepts.” Farina v. Nokia Inc., 625 F.3d 97, 112 (3d Cir. 2010). In the RFRA setting in particular, the authorization of “appropriate relief” is “inherently context dependent.” Tanzin v. Tanvir, 141 S. Ct. 486, 491 (2020) (quoting Sossamon v. Texas, 563 U.S. 277, 286 (2011)).
Congress passed RFRA in 1993,
So, to summarize: Congress enacted RFRA against a “legal backdrop,” Tanzin, 141 S. Ct. at 490 (internal quotation marks omitted), in which state and federal officials sued for violating the Constitution, and state officials sued for violating federal law, could invoke qualified immunity as a defense. Indeed, qualified immunity “represent[ed] the norm” when it came to suits against public officials. Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). It is therefore appropriate to presume that Congress drafted RFRA mindful of and consistent with that status quo. Cf. Farina, 625 F.3d at 112 (“It is only natural that Congress would intend to incorporate into [the Class Action Fairness Act] the case law governing amended pleadings.”).
That presumption is not absolute, as Congress can “override” the “background of common-law adjudicatory principles.” Mohamad v. Palestinian Auth., 566 U.S. 449, 457 (2012) (internal quotation marks omitted). But here, there is good reason to think that Congress embraced and incorporated the doctrine of qualified immunity in enacting RFRA. The Supreme Court’s decision in Tanzin v. Tanvir is instructive. 141 S. Ct. 486 (2020). The question presented in that case was
The Court did not directly address whether the right to damages under RFRA was subject to a qualified immunity defense. But, in a footnote, it observed with apparent approval that the parties had agreed “that government officials are entitled to assert a qualified immunity defense when sued in their individual capacities for money damages under RFRA.” Id. at 492 n.*. It then went on to highlight the government’s position that the qualified immunity defense “was created for precisely these circumstances” – i.e., suits seeking money damages from officials sued in their individual capacities – and is “a ‘powerful shield’ that ‘protects all but the plainly incompetent or those who flout clearly established law.’” Id. (internal citations omitted).
Even if we felt that there was some room for doubt after Tanzin, refusing to recognize a qualified immunity defense to RFRA claims would be inconsistent with precedent extending the defense to claims under a number of other statutes. The Supreme Court has relied on the doctrine when examining a claim under
But RFRA is special, say both Mack and our Amici. The statute was designed to protect religious liberty rights, and so, they argue, it would frustrate the statutory promise of protection if we recognize a qualified immunity defense that lets officers off the hook except when they violate clearly established law. Yet while the First Amendment‘s Free
It is true that RFRA was enacted to guarantee more generous protections for religious freedom than are available under the Supreme Court‘s present interpretation of the First Amendment. A few years before passage of the statute, the Court in Employment Division, Department of Human Resources of Oregon v. Smith overruled prior caselaw and held that neutral and generally applicable laws, even if they incidentally burden religious exercise, pass muster under the First Amendment. 494 U.S. 872, 880-81, 883-86 & n.3 (1990); cf. Yellowbear v. Lampert, 741 F.3d 48, 52 (10th Cir. 2014) (Gorsuch, J.) (noting that pre-Smith caselaw “suggested that no law, not even a neutral law of general applicability,” could substantially burden religious exercise unless that burden is the least restrictive means of achieving a compelling governmental interest). With RFRA, Congress revived the Court‘s pre-Smith precedents, prohibiting government officials from taking any action that substantially burdens religious exercise, “even if the burden results from a rule of general applicability,” if the action is not the least restrictive means of furthering a compelling government interest.11
In short, RFRA placed individuals on essentially the same footing as they had been prior to Smith in terms of their rights against and remedies for governmental invasions of religious liberty. Those remedies, of course, included money damages under
Our Amici emphasize that RFRA and its silence on the matter of qualified immunity is “modern,” as compared with the long history of
Finally, our Amici challenge the doctrinal justifications for affording officers qualified immunity, arguing that we
B. The Defendants Are Not Entitled To Qualified Immunity At This Stage14
We turn next to the core question on appeal: whether the District Court correctly granted the Defendants qualified immunity on the grounds that they did not violate clearly established rights. Based on the record before us, we conclude it was error to deem the Defendants immune at this stage of the
Our inquiry is guided by the two-prong test for qualified immunity, the first prong being whether the facts, as viewed in the light most favorable to the plaintiff, show the violation of a legal right, and the second being whether that right was clearly established. Peroza-Benitez, 994 F.3d at 165. “[T]he party asserting the affirmative defense of qualified immunity” bears the burden of persuasion on both prongs at summary judgment. Halsey v. Pfeiffer, 750 F.3d 273, 288 (3d Cir. 2014).
1. Mack‘s Rights Were Violated
It is undisputed that the first prong – a violation of Mack‘s RFRA rights – has been established here. To establish a prima facie case under RFRA, Mack needed to show “that the government (1) substantially burdened (2) a sincere (3) religious exercise.” Mack II, 839 F.3d at 304. Here, there is no question that Mack sincerely adheres to his faith, and that his prayers at the commissary constituted religious exercise. RFRA defines “exercise of religion” to mean “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” See
As for the substantial burden element of the prima facie case, we held it was satisfied at the motion-to-dismiss stage, as Mack plausibly alleged that Roberts and Venslosky had placed “indirect pressure ... on [him]” “to stop praying at work” by creating a “hostile work environment” that drove him to “betray [his] religious beliefs.” Mack II, 839 F.3d at 304. And the District Court found “[t]he same conclusion ... warranted” on the basis of the factual record at summary judgment, concluding that a reasonable jury could find that the Defendants had “‘substantially burdened’ Mack‘s religious exercise by pressuring him into altering his prayer rituals.” Mack, 2018 WL 4375083, at *5.
The Defendants nowhere argue that the District Court got that wrong. It thus became incumbent upon them to show that their actions were the least restrictive means of furthering a compelling government interest. Small v. Lehman, 98 F.3d 762, 767 (3d Cir. 1996), overruled on other grounds by City of Boerne v. Flores, 521 U.S. 507 (1997); Korte v. Sebelius, 735 F.3d 654, 673 (7th Cir. 2013). They have not even attempted to do that. Accordingly, we see no reason to disturb the District Court‘s conclusion that the Defendants unlawfully infringed Mack‘s religious liberty. For our purposes, then, we proceed with the understanding that a violation of RFRA occurred, although we reiterate that this conclusion is made solely for the purpose of reviewing the summary judgment ruling now on
2. Mack‘s Rights Were Clearly Established
Because the Defendants have failed on the first prong of the qualified immunity analysis, they are only entitled to summary judgment if they can bear the burden of showing, on the second prong, that reasonable officers could not have known that their actions violated clearly established law. Halsey, 750 F.3d at 288. In analyzing the “clearly established law” prong, we proceed in two steps: we first “define the right allegedly violated at the appropriate level of specificity” and then “ask whether that right was ‘clearly established’ at the time of its alleged violation.” Jefferson, 21 F.4th at 81.
a. The Right as Properly Defined
It is essential to begin by “fram[ing] the right ‘in light of the specific context of the case,‘” with all reasonable inferences drawn in the nonmovant‘s favor. Peroza-Benitez, 994 F.3d at 165-66; accord Tolan v. Cotton, 572 U.S. 650, 657 (2014) (“Our qualified-immunity cases illustrate the importance of drawing inferences in favor of the nonmovant, even ... [on] the clearly-established prong of the standard.“). The Supreme Court has repeatedly cautioned that the qualified immunity inquiry demands a “high ‘degree of specificity‘” and that courts may not “define clearly established law at a high level of generality,” which would “avoid[] the crucial question whether the official acted reasonably in the particular circumstances that he or she faced.” District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018).
But the Defendants also fail to correctly frame the right. Their framing is, in a sense, too narrow, as it ignores the present factual and procedural realities of the case. Taking their cue from our decision in Mack II, they assert that the right at issue is freedom from a “hostile work environment” ‒ one consisting of “mostly verbal” “anti-Muslim harassment” ‒ that “indirect[ly]” causes an inmate to “refrain from praying during his prison work assignment.” (Answering Br. at 7, 12-13, 18 (quoting Mack II, 839 F.3d at 304)). Mack II, however, was decided at the pleading stage, based on a liberal construction of Mack‘s pro se amended complaint. 839 F.3d at 293-94. Our discussion of Mack‘s allegations focused on Roberts slapping an “I LOVE BACON” sticker on Mack‘s back and later saying
The record is different now, and so is the procedural posture. We are reviewing the District Court‘s ruling at summary judgment, with the benefit of a developed factual record, including, in particular, Mack‘s deposition testimony. That testimony, taken at face value, reveals that in addition to the harassment we identified from Mack‘s allegations, the Defendants actively and intentionally interfered with Mack‘s ability to practice his Muslim faith. Mack spoke about the importance of praying five times a day at set times, which he tried to do by praying “[a]s much as [he] could” while on shift breaks at the commissary. (J.A. at 134-35.) He also described how Roberts and Venslosky would come to the back corner of the commissary and make noises, tell jokes, speak loudly, and kick boxes around, “[i]nterrupt[ing]” the focus Mack was trying to achieve while he prayed. (J.A. at 132-34.) Those disruptions, Mack testified, were a purposeful part of an overall campaign by the officers to get him to stop praying at the commissary. And that campaign, according to Mack, led him to first delay his prayers and then to cease praying altogether at the times required by his faith. He instead tried to catch up on his prayers at the end of the day.
In light of that deposition testimony, we conclude that the District Court erred in how it framed the relevant right in its “clearly established law” analysis. The Court largely sided with the Defendants’ view and looked to see whether the unlawfulness of their “mostly verbal” anti-Muslim harassment and hostility was clearly established. (J.A. at 16.) But a better characterization of the RFRA violation – one that more appropriately reflects “the specific context of the case,” as
If the District Court felt constrained by our description of Mack‘s allegations at the motion-to-dismiss stage, it should not have. Usually, the law of the case doctrine dictates that “when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” Farina, 625 F.3d at 117 n.21. But that doctrine does not prevent a court from deciding a summary judgment motion based on record evidence in a way that differs from previous decisions that were based on allegations in the complaint. See Wiest v. Tyco Elecs. Corp., 812 F.3d 319, 329-30 (3d Cir. 2016) (rejecting a contrary argument as a “critical misapplication of the fundamental distinction between a motion to dismiss under
b. Clearly Established Violation of the Right
Finally, we must decide if the right, as properly framed, is “sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Peroza-Benitez, 994 F.3d at 165 (internal quotation marks omitted). That is “an objective (albeit fact-specific) question, where an officer‘s subjective beliefs are irrelevant.” Id. (cleaned up).17
A right is clearly established if there is either “closely analogous” caselaw establishing that a defendant‘s conduct was unlawful or “evidence that the Defendant‘s conduct was
Mack directs our attention to a handful of cases to show that his RFRA rights were clearly established, but none are particularly pertinent. They primarily involve “failure[s] to accommodate” an inmate‘s religion by refusing to grant requested dietary modifications. (Opening Br. at 22-23.) In one sense, Mack has underplayed his hand. There can be legitimate penological reasons for granting some but not all of an inmate‘s requests for what to serve at dinner. See Williams v. Morton, 343 F.3d 212, 216-21 (3d Cir. 2003) (First Amendment was not violated by affording Muslim inmates vegetarian meals, which are permitted by their faith, but not meals with halal meat). But the unrebutted evidence at this juncture shows that the Defendants were deliberately trying to disrupt Mack‘s prayers and so to pressure him to give up a central practice of his faith; no justification for that bigoted behavior has even been attempted.
Also inapposite is Mack‘s citation to an unreported district court case, Pineda-Morales v. De Rosa, in which an inmate was barred from engaging in more than a single prayer service of the type his faith required. Pineda-Morales v. De Rosa, 2005 WL 1607276, at *1, *11 (D.N.J. July 6, 2005). The court there held that the abridgment of the plaintiff‘s ability to pray established a colorable RFRA violation. Id. at *12. The RFRA violation in Pineda-Morales, however, was of a different type than the one here. The Defendants in the present case pressured Mack to stop praying by disturbing his daily prayers, as well as harassing and mocking him for his faith; they did not enact an outright prohibition on the type of prayer in which he sought to engage.
We are convinced that it should be clear to any reasonable correctional officer that, in the absence of some legitimate penological interest, he may not seek to prevent an inmate from praying in accordance with his faith. Under RFRA, an officer may not “put[] substantial pressure on an adherent [of a religious faith] to substantially modify his behavior and to violate his beliefs.” Mack II, 839 F.3d at 304. Whether pressure is substantial turns on “the intensity of the coercion applied by the government to act contrary to [one‘s] beliefs.” Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1137 (10th Cir. 2013), aff‘d sub nom. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014). Both direct and indirect burdening of religion are prohibited. Washington v. Klem, 497
Any deliberate interference with prayer is suspect, given the crucial role that prayer – in one form or another – plays in so many religious faiths. “Prayer unquestionably constitutes the ‘exercise’ of religion.” Sause v. Bauer, 138 S. Ct. 2561, 2562 (2018). The guarantee of free exercise of religion encompasses “not only the right to harbor religious beliefs inwardly and secretly. It does perhaps its most important work by protecting the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life through ‘the performance of (or abstention from) physical acts.‘” Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2421 (2022). Such acts unquestionably include a person “praying quietly” “briefly and by himself.” Id. at 2422. The freedom to pray is in fact integral to the free-exercise jurisprudence that RFRA absorbed. See Engel v. Vitale, 370 U.S. 421, 434-35 (1962) (noting that among the founders were men who had “faith in the power of prayer,” and “led the fight for adoption of” the First Amendment to try to “put an end to governmental control of religion and of prayer“); cf. United States v. Ballard, 322 U.S. 78, 87 (1944) (Under the Constitution, “[m]an‘s relation to his God was made no concern of the state. He was granted the right to worship as he pleased and to answer to no man for the verity of his religious views.“).
“[G]overnment actions intentionally discriminating against religious exercise ... serve no legitimate purpose.” Brown v. Borough of Mahaffey, Pa., 35 F.3d 846, 850 (3d Cir. 1994). Not surprisingly, “cases which address acts ... which target religious activity” are “rare.” Id. at 849; see also Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 523 (1993) (“The principle that government may not enact laws that suppress religious belief or practice is so well understood that few violations are recorded in our opinions.“). In other words, an intentional effort “to suppress ... religious worship” for that purpose alone is plainly impermissible, Lukumi, 508 U.S. at 540, and worship plainly includes prayer.19 That prohibition on suppressing prayer does not stop at the jailhouse doors. See Cruz v. Beto, 405 U.S. 319, 322 n.2 (1972) (“[R]easonable op[p]ortunities must be afforded to all prisoners to exercise the religious freedom guaranteed by the First ... Amendment without fear of penalty.“); Gittlemacker v. Prasse, 428 F.2d 1, 4 (3d Cir. 1970) (“[C]ourts have not hesitated to intervene where prison officials have unreasonably attempted to curtail the practice of religion by prison inmates.“).
The long-standing history and force of those general principles lead us to conclude that, during the time at issue, it was clearly established that a correctional officer was
The Dissent also argues that the Defendants were not put on notice that the conduct they engaged in rose to the level
Viewed in the light most favorable to Mack, the facts are that the Defendants actually meant for their actions to be a substantial burden on Mack‘s prayers. They wanted him to stop, and he did. Of course, their subjective intent does not create the substantial burden. Contrary to the Dissent‘s suggestion, that is not why we raise the point. The extent of the burden imposed is relevant to whether we are dealing with a close case. That the Defendants set out to prevent worship and accomplished that end is evidence of the extent of the burden, particularly when, at the summary judgment stage, we must view the evidence in the light most favorable to Mack.
The Defendants also assert that there is a “wide gap” between their actions and those in the cases that have been found to be “obvious” violations of law. (Answering Br. at 18-19 (citing Taylor v. Riojas, 141 S. Ct. 52, 53-54 (2020) (per curiam) (inmate left in a sewage-filled cell for six days); and Hope v. Pelzer, 536 U.S. 730, 734-35, 741 (2002) (prisoner handcuffed to hitching post, without a shirt, under the sun for seven hours, with scant water or bathroom breaks)).) It is self-evident, of course, that Mack‘s experiences – bad as they were – do not rise to the level of cruelty displayed in Eighth Amendment cases, in which the nature of the violation itself involves “cruel and unusual punishment.”
RFRA violations, meanwhile, are based on substantial burdens on religion, which typically do not entail the brutality and physical abuse on display in the worst Fourth Amendment and Eighth Amendment cases. So, it may well be that an “obvious” RFRA violation will involve less viscerally abhorrent conduct than an infringement on some other constitutional right. But that misses the point. The question is whether “broad rules and general principles” make the existence of the right “so manifest that it is clearly established.” Schneyder, 653 F.3d at 330. That in turn may depend on
Our conclusion that it was clearly established, at the time of the Defendants’ actions, that there was a right to pray free of substantial, deliberate, repeated, and unjustified
III. CONCLUSION
For the foregoing reasons, we will vacate the District Court‘s grant of summary judgment and remand for further proceedings consistent with this opinion.
The Supreme Court has repeatedly admonished courts not to define rights too broadly when determining whether law was “clearly established” for purposes of qualified immunity. In all but the rare case, the Court has also required factually analogous precedent that would render the violation beyond debate. Because those imperatives require us to affirm the judgment of the District Court, I respectfully dissent.
I
I agree with my colleagues on many points. Though a qualified immunity defense is available under the Religious Freedom Restoration Act (RFRA), we should not “disturb the District Court‘s conclusion that the Defendants unlawfully infringed Mack‘s religious liberty.” Maj. Op. 28. Mack‘s prayers are certainly religious exercise. Maj. Op. 27. And Mack‘s definition of the right Defendants violated is “far too broad and generic” for qualified immunity purposes. Maj. Op. 30.
I disagree with my colleagues that Defendants and the District Court framed the right too narrowly. The Supreme Court‘s demanding standard requires the right to be defined with “a high degree of specificity.” D.C. v. Wesby, 138 S. Ct. 577, 590 (2018) (cleaned up). Even more importantly for Mack‘s appeal, it also requires the right to be tailored to “the specific context of the case.” Tolan v. Cotton, 572 U.S. 650, 657 (2014) (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004)).
Mack described Defendants’ disruptions of his prayer while he worked at the prison commissary as making “noises
The right articulated in the majority opinion – “the right to pray free of substantial, deliberate, repeated, and unjustified disruption by prison officials” – is too general. Maj. Op. 35. It omits two important facts from Mack‘s testimony: (1) he voluntarily ceased praying at work; and (2) he believed doing so was consistent with his religious obligations. Without these facts, the right is not tailored to the “specific context” of Mack‘s case. Tolan, 572 U.S. at 657 (cleaned up); see also Kemp v. Liebel, 877 F.3d 346, 352 (7th Cir. 2017) (finding “the right of prisoners not to have their religious practices interfered with and prevented absent a legitimate penological basis” too broad). The majority opinion concedes as much when it states that its generalized right suffices because this is an obvious case. Maj. Op. 32–33 n.15. For reasons I explain below, it is not.
II
Even accepting the majority‘s articulation of the right at issue, I would not find it clearly established here. The majority claims we “take a ‘broad view’ of what makes a right clearly
The cases Mack cites, as the majority notes, are not factually analogous. And the majority identifies no other precedent – from our Court or elsewhere, before or after RFRA was enacted – sufficiently similar to deny Defendants qualified immunity. So “this case presents a unique set of facts and circumstances,” which “alone” provides “an important indication . . . that [Defendants‘] conduct did not violate a ‘clearly established’ right.” White v. Pauly, 580 U.S. 73, 80 (2017) (per curiam) (cleaned up).
The majority sidesteps the absence of on point caselaw by deeming the RFRA violation “so obvious” that every objectively reasonable officer would know that Defendants’ conduct violated federal law. Maj. Op. 39 (quoting Schneyder v. Smith, 653 F.3d 313, 330 (3d Cir. 2011)). I agree with my colleagues that the obvious case does not demand factually analogous precedent, but it still requires that the law be “sufficiently clear” such that “every reasonable official would
That Defendants acted out of anti-Muslim animus and “actually meant for their actions to be a substantial burden on Mack‘s prayers,” Maj. Op. 44 n.21, doesn‘t show that they violated clearly established law, either. Defendants cannot impose a “substantial burden” under RFRA merely by willing it – “whether a burden is substantial under RFRA is a question of law.” Real Alts., Inc. v. Sec‘y Dep‘t of Health & Hum. Servs., 867 F.3d 338, 356 (3d Cir. 2017) (cleaned up). And while an inquiry into a defendant‘s subjective state of mind may be appropriate “where such state of mind is an essential element of the underlying civil rights claim,” Maj. Op. 36 n.17, the
The majority opinion cites not a single case where courts have found RFRA or Free Exercise violations sufficiently “obvious” to overcome qualified immunity. My colleagues claim it “would be odd to expect much binding precedent about obvious RFRA violations” because the Supreme Court only recently recognized a cause of action under RFRA for damages against officials in their individual capacity. Maj. Op. 46 n.22. But damages “have always been available under § 1983 for clearly established violations of the First Amendment.” Tanzin v. Tanvir, 141 S. Ct. 486, 492 (2020). And the majority relies on pre-RFRA Free Exercise caselaw to argue that the violation here was clearly established. Maj. Op. 43 n.21. So while no “critical mass of earlier obvious violations” is required, Maj. Op. 46 n.22, the absence of any obvious religious exercise violations suggests we should hesitate to find one here.
Finally, the majority dismisses the stark differences between this appeal and other “obvious” cases by positing that obvious RFRA violations will “involve less viscerally abhorrent conduct” than infringement of other constitutional rights. Maj. Op. 45. But even accepting that proposition, Mack‘s case still does not clear the obviousness hurdle. Mack failed to show the “extreme circumstances” or “particularly egregious facts” indicative of the obvious case. Taylor v. Riojas, 141 S. Ct. 52, 53–54 (2020) (per curiam). That reality does not excuse Defendants’ reprehensible behavior. It means only that, as of 2009, it was not “obvious” that disrupting Mack‘s prayers in the prison workplace by making loud noises and jokes substantially burdened his religion.
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