Alvin MARRERO-MÉNDEZ; Cynthia Pérez-Valentín; Conjugal Partnership Marrero-Pérez, Plaintiffs, Appellees, v. Guillermo CALIXTO-RODRÍGUEZ, former Carolina Area Commander for the Puerto Rico Police Department; Mario Rivera, Chief of the Carolina Precinct of the Puerto Rico Police Department; Ricardo Cruz-Domínguez, Supervisor of the Puerto Rico Police Department, Defendants, Appellants, Héctor Pasquera, Superintendent of the Puerto Rico Police Department; William Orozco, Carolina Area Commander of the Puerto Rico Police Department, Defendants.
No. 14-2030
United States Court of Appeals, First Circuit.
July 19, 2016
830 F.3d 38
Nor do we agree with the plaintiffs that Rule 606(b)—the Rule the District Court cited in concluding that it could not consider the jurors’ testimony in evaluating the validity of the verdict—requires that the records be sealed. That Rule does not state that if the District Court receives juror testimony and then determines that it may not consider it in adjudging the validity of the verdict—as was the case here—the court must seal the testimony that it received. In fact, the Advisory Committee Notes to the Rule expressly note that the Rule “does not relate to secrecy and disclosure but to the competency of certain witnesses and evidence.” Consistent with that statement, at least two other circuits have quoted in published opinions juror testimony even where they concluded, as the District Court did here, that Rule 606(b) prohibited the trial court from considering that testimony in evaluating the validity of the verdict. See Munafo v. Metro. Transp. Auth., 381 F.3d 99, 102-04 (2d Cir. 2004); Robles v. Exxon Corp., 862 F.2d 1201, 1203–04 (5th Cir. 1989).
The plaintiffs’ last argument is that the records at issue should be sealed to avoid “embarrass[ing] the judge and the jury.” But “[t]he mere fact that judicial records may reveal potentially embarrassing information is not in itself sufficient reason to block public access” to judicial records. Siedle, 147 F.3d at 10.
3.
In sum, the District Court did not abuse its discretion in ordering the records at issue unsealed in this case. We leave the question whether the two jurors’ names should be redacted from the relevant records for the District Court to decide in the first instance.
V.
The District Court’s decision is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. Each party shall bear its own costs.
Margarita Mercado-Echegaray, Solicitor General of the Commonwealth of Puerto Rico, with whom Andrés González-Berdecía, Assistant Solicitor General, was on brief, for appellants.
Heather L. Weaver, with whom Daniel Mach, New York, NY, the American Civil Liberties Union Foundation, Josué González-Ortiz, William Ramirez, San Juan, PR, and the ACLU of Puerto Rico were on brief, for appellees.
Before TORRUELLA, LIPEZ, and THOMPSON, Circuit Judges.
Plaintiff Alvin Marrero-Méndez (“Marrero”), an officer in the Puerto Rico Police Department (“PRPD”), filed a
I.
The denial of qualified immunity on a motion to dismiss is immediately appealable. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Penn v. Escorsio, 764 F.3d 102, 105 (1st Cir. 2014). Hence, we review the district court’s rejection of qualified immunity, accepting, as we must, all well-pleaded facts in the light most favorable to Marrero. See Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 17 (1st Cir. 2011); Maldonado v. Fontanes, 568 F.3d 263, 266 (1st Cir. 2009).
Marrero has been a police officer in the PRPD since 1999. Prior to the alleged incident, Marrero’s responsibilities consisted of law enforcement tasks, such as patrolling, conducting arrests, and undertaking other crime-prevention activities.
On March 9, 2012, Officer Guillermo Calixto-Rodríguez (“Calixto”), a regional commander of the PRPD, summoned forty PRPD officers for a meeting in the parking lot of a shopping mall to discuss a plan for an intervention to take place nearby. Marrero was among those in attendance, as were two of his superiors, Officers Mario Rivera (“Rivera”) and Ricardo Cruz-Domínguez (“Cruz”). All of the officers stood in military formation. Toward the end of the meeting, Calixto asked for a volunteer to lead the group in a prayer. These meetings, which occurred every other month or so, typically included a Christian invocation or closing prayer.
On this occasion, Marrero—who is an “open atheist”—called Calixto aside and told him that “he object[ed] to such official prayers because they promote[d] religious beliefs to which he [did] not subscribe.” He added that “he felt very uncomfortable taking part in the prayer and that he did not want to participate.” Marrero also informed Calixto that the prayer violated PRPD regulations, which provided that “[a] strict separation shall be maintained between the church and state.”
Calixto became “upset” and ordered Marrero to “abandon the formation.” As Marrero was walking away from the group, Calixto shouted that Marrero should stop and stand still until the prayer was finished. Calixto also shouted, in front
After the meeting, Marrero worked with Cruz, his immediate supervisor, for the rest of the night. Marrero told Cruz that he was upset about the incident with Calixto, and that, as a result, he preferred to be assigned to his usual duties at the airport, away from the area in which the intervention meeting took place. Marrero also began to cry because of the humiliation he had experienced. While on their way to the airport, Marrero told Cruz that he intended to file an administrative complaint about the incident. When they arrived at the airport, Cruz instructed Marrero to hand over his weapon because he was in an emotional state, and to report to Rivera the following Monday to receive further orders about a transfer.
The following Monday, March 12, 2012, Marrero filed an administrative complaint at the PRPD.1 Two days later, he also met with Rivera, as instructed by Cruz. Rivera presented Marrero with two transfer options: report to the Command Office for clerical tasks or stay in the airport station to perform vehicle-maintenance tasks. Both options were effectively demotions from Marrero’s usual responsibilities. Marrero chose the latter and has since carried out vehicle-related and other such tasks, 2 not the law enforcement activities for which he was trained.
On March 8, 2013, Marrero filed this action, claiming that appellants violated the Establishment Clause by “expos[ing] [him] to unwanted religious exercise and messages by [PRPD] officials.”3 He also alleged that appellants’ conduct “endorse[d]” religion and “entangle[d]” the PRPD with religion. Additionally, Marrero claimed that appellants retaliated against him for refusing to participate in, and speaking out in opposition to, the prayer and for filing an administrative complaint regarding the prayer practices. Appellants moved to dismiss the complaint, claiming a failure to allege plausibly a constitutional violation, see
The district court denied their motion on both grounds. As to the Rule 12(b)(6) defense, the court found that Marrero had adequately alleged an Establishment Clause violation because the prayer in question took place during an official police meeting, and the allegations plausibly showed that Calixto “forced [Marrero] to observe the prayer[] against his will and his own religious beliefs.” Based on these allegations, the court also found that Marrero was punished for his refusal to participate in the prayer by being deprived of his regular duties as a PRPD officer. Such treatment, concluded the court, reinforced the coercive nature of appellants’ conduct.
II.
Appellants claim that the district court erred in rejecting their qualified immunity defense because there was no clearly established law placing them on notice that their conduct was unconstitutional. Specifically, they argue that the law at the time of the alleged conduct did not clearly establish that “[appellants’] actions constituted [s]tate-sponsored official prayers and not merely tolerable religious expression.” Appellants claim, moreover, that, even if a reasonable officer should have known that the prayer was state-sponsored, they are still entitled to qualified immunity because the contours of Marrero’s right to be free from religious coercion were not clearly defined at the time of appellants’ conduct. In particular, they assert that a reasonable officer would not have known that Calixto’s order to Marrero to “abandon the formation”—which they characterize as an opt-out opportunity—was insufficient to pass constitutional muster in light of the divergent tests developed in the Supreme Court’s Establishment Clause cases.
We review a district court’s denial of qualified immunity de novo. See Rivera-Ramos v. Roman, 156 F.3d 276, 279 (1st Cir. 1998). Hence, “taking the law as it stood at the time of the conduct in question,” we address as a question of law whether “a set of assumed facts constitutes a violation of ‘clearly established law.’” Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).
A. Qualified Immunity Standards
Qualified immunity protects government officials from trial and monetary liability unless the pleaded facts establish “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (quoting Harlow, 457 U.S. at 818); see Glik v. Cunniffe, 655 F.3d 78, 81 (1st Cir. 2011). If either of the two prongs is not met—i.e., if the facts do not show a constitutional violation or the right in question was not clearly established—the officer is immune. Either prong may be addressed first, depending on “the circumstances in the particular case at hand.” Pearson, 555 U.S. at 236.
Here, appellants argue that it is unnecessary to address the first prong inquiry because their primary argument is that the second prong has not been satisfied.
B. Constitutional Violation
The First Amendment of the United States Constitution proscribes Congress from making laws “respecting an establishment of religion.”
Appellants’ conduct violated precisely such a principle. As a threshold matter, the prayer in question was unmistakably a state action. Appellants are PRPD officers who either initiated or participated in the prayer during an official intervention meeting. Moreover, regardless of how one may interpret the constitutionality of the prayer in and of itself,4 the subsequent events make clear that appellants’ actions (collectively) constituted direct and tangible coercion. Immediately after directing Marrero to “abandon the formation,” Calixto ordered Marrero, as he was walking away from the group, to stop and stand still for the duration of the prayer. Calixto then shouted, in front of the entire formation, that Marrero was standing apart from the group because “he doesn’t believe in what we believe in.” After complaining about the incident and filing an administrative complaint, Marrero was transferred to a post where he was deprived of his usual law enforcement responsibilities.
If these actions do not establish religious coercion, we would be hard-pressed to find what would. Among the “essential precepts” of the Establishment Clause are that “[n]either a state nor the Federal Government can force [a person] to profess a belief or disbelief in any religion,” and that “[n]o person can be punished for entertaining or professing religious beliefs or disbeliefs.” Cty. of Allegheny v. Am. Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 591, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (quoting Everson v. Bd. of Educ. of Ewing, 330 U.S. 1, 15-16, 67 S.Ct. 504, 91 L.Ed. 711 (1947)); see Lee, 505 U.S. at 596, 112
Hence, we conclude that the first prong of the qualified immunity inquiry is met: appellants violated the Establishment Clause by (i) forcing Marrero to observe a religious practice against his will and (ii) punishing him for his nonconformance.
C. Clearly Established Law
Appellants would still be entitled to qualified immunity if the right they violated was not “clearly established” at the time of their conduct. A right is “clearly established” when “[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Hence, while the precise violative action at issue need not have previously been held unlawful, id., the existing precedent from in and out of circuit “must have placed the statutory or constitutional question beyond debate,” al-Kidd, 563 U.S. at 741; see Barton v. Clancy, 632 F.3d 9, 22 (1st Cir 2011).
How specifically the right, or correspondingly, the violative conduct, must be identified has been the subject of much dispute. The Supreme Court has “repeatedly told courts . . . not to define clearly established law at a high level of generality.” al-Kidd, 563 U.S. at 742. The dispositive question is “whether the violative nature of particular conduct is clearly established.” Id. (emphasis added); Anderson, 483 U.S. at 640 (noting that the violative action must be understood in a “particularized, and hence . . . relevant, sense”). The inquiry “must be undertaken in light of the specific context of the case, not as a broad general proposition.” Mullenix v. Luna, 577 U.S. 7, 12, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (per curiam) (quoting Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (per curiam)).
Here, appellants argue that there was no clearly established law as of March 2012 that placed them on notice that the prayer was “state-sponsored” and that their conduct was coercive. We can easily dispose of the “state-sponsored” prayer argument. Calixto initiated—and Rivera and Cruz participated in—the prayer with a group of police officers during an official intervention meeting. Appellants have not cited, nor have we identified, any case that would deem such a prayer as a voluntary and spontaneous exercise by private individuals. Even in cases where the persons initiating or engaging in prayer are not state officials, the Supreme Court has inferred state sponsorship of the prayer where indirect state involvement suggests an imprimatur on the religious practice.
Appellants’ second argument regarding coercion warrants a closer look. The district court found that a reasonable officer in March 2012 would have known that “ordering a subordinate to observe a religious prayer . . . without giving the subordinate the ability to opt out . . . would violate the Constitution.” This formulation of the inquiry, however, is not sufficiently specific. An affirmative answer to this inquiry, though accurate, would state an abstract principle of law, disassociated from the facts of the case. See al-Kidd, 563 U.S. at 742. Hence, in accordance with the Supreme Court’s guidance, we frame the “clearly established” inquiry as follows: appellants are entitled to qualified immunity if a reasonable officer in March 2012 would not have known that appellants’ conduct was coercive in the situation they encountered. See Brosseau, 543 U.S. at 199. The relevant situation, and appellants’ actions, consisted of the following: (1) after directing Marrero to abandon the formation, Calixto ordered Marrero, as he was walking away, to stop and stand still until the prayer was finished; (2) as Marrero stood in the vicinity of the group, Calixto shouted that Marrero was standing separately from the group because he does not subscribe to the same faith as the rest of the group; (3) after Marrero complained about the incident, he was stripped of his law enforcement responsibilities and demoted to lesser tasks.5
With that clarification, we examine whether the law as of March 2012 put reasonable officers on notice that appellants’ conduct—ordering a subordinate, against his will, to stand nearby while his colleagues engage in a prayer and then humiliating and punishing him for nonconformance—constitutes religious coercion. We conclude that it did. Indeed, the coerciveness of appellants’ conduct is so patently evident that no particular case—and certainly not one “directly on point,” al-Kidd, 563 U.S. at 741—need have existed to put a reasonable officer on notice of its unconstitutionality. Nonetheless, existing precedent supports this inescapable conclusion.
In Anderson v. Laird, 466 F.2d 283, 284, 291 (D.C. Cir. 1972) (per curiam), the D.C. Circuit addressed a federal regulation that required cadets and midshipmen at military academies to attend religious services on Sundays unless they objected based on conscientious beliefs. The court struck down the regulation as unduly coercive, despite the opt-out opportunity, because the “government may not require an individual to engage in religious practices or be present in religious exercise.” Id. at 291 (Bazelon, J., concurring). Similarly, in Mellen, 327 F.3d at 371-72, the Fourth Circuit held that a mandatory supper prayer at a military academy violated the Establishment Clause, even though the cadets could abstain from the prayer by avoiding the mess hall where the supper prayer takes place. Hence, as of March 2012, these cases stood for the proposition that requiring mature individuals to participate in a group prayer in a setting with a strict hierarchy amounts to religious coercion,6 even when an opt-out opportunity is provided to objecting persons.
Courts have also found coercion where the government required conformance to a religious belief as a condition for a benefit, such as parole eligibility for prisoners or job security for government employees. Indeed, before March 2012, numerous courts had held that requiring prisoners to attend a program that has a religious component as a condition for parole eligibility is unconstitutional. See, e.g., Inouye v. Kemna, 504 F.3d 705, 713 (9th Cir. 2007) (holding that a mandatory drug treatment program for prisoners is “clearly coercive” where the program is rooted in religious faith); Warner v. Orange Cty. Dep’t of Prob., 115 F.3d 1068, 1074-75 (2d Cir. 1997) (same); Kerr v. Farrey, 95 F.3d 472, 479-80 (7th Cir. 1996) (same).
Courts have likewise applied the same principle to government employment cases. In Venters v. City of Delphi, 123 F.3d 956, 970 (7th Cir. 1997), an employee of the city police department sued the police chief, alleging that he violated the Establishment Clause by “pressur[ing] her to bring her thinking and her conduct into conformity with the principles of his own religious beliefs, and admonish[ing] her in no uncertain terms that she was at risk of losing her job if she was unwilling to do so.” Based on these allegations, the Seventh Circuit held that the police chief “engaged in the kind of coercion proscribed by the establishment clause.” Id.; see also Milwaukee Deputy Sheriffs Ass’n V. Clarke, 513 F.Supp.2d 1014, 1021 (E.D. Wis. 2007) (holding that the county sheriff and sheriff’s captain impermissibly “pro-
Appellants’ attempt to create ambiguity in the law by analogizing this case to inapt Establishment Clause cases is unavailing. Appellants cite, for instance, legislative prayer cases, in which the Court has relied on a tradition of ceremonial prayers that has long co-existed with the Establishment Clause. See, e.g., Town of Greece v. Galloway, 572 U.S. 565, 591-92, 134 S.Ct. 1811, 1828, 188 L.Ed.2d 835 (2014) (holding that opening town meetings with prayers does not violate the Establishment Clause because it “comports with our tradition and does not coerce participation by nonadherents”). They also cite cases involving government aid to religious schools, see, e.g., Lemon v. Kurtzman, 403 U.S. 602, 606-11, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), or religious displays on public premises, see, e.g., Van Orden v. Perry, 545 U.S. 677, 681, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005), which employ the three-part Lemon test and the endorsement test, respectively. See Lemon, 403 U.S. at 612-13 (organizing the “cumulative criteria” developed in the Court’s Establishment Clause cases into three standards, the third of which prohibits “excessive government entanglement of religion”); Lynch v. Donnelly, 465 U.S. 668, 688, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O’Connor, J. concurring) (articulating the endorsement test as prohibiting sending “a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community”).
None of these cases remotely resemble what we have here—an objecting individual who was forced to observe a prayer and humiliated and punished for his non-conformance. Ambiguity in the law cannot be manufactured by borrowing from factually and legally distinguishable cases. See El Dia, Inc. v. Rossello, 165 F.3d 106, 110 n. 3 (1st Cir. 1999) (noting that “the location and level of the precedent, its date, its persuasive force, and its level of factual similarity to the facts before this Court may all be pertinent to whether a particular precedent ‘clearly establishes’ law for the purposes of a qualified immunity analysis”). However complex the nuances of the Establishment Clause doctrine may be for cases without the direct coercion present in this case, a reasonable officer in March 2012 would have known that appellants’ conduct amounted to direct and tangible coercion, a paradigmatic example of an impermissible establishment of religion.
The district court’s denial of qualified immunity is, therefore, affirmed.
So ordered.