Rare qualified immunity rejection in Supreme Court in prayer case

If you handle Section 1983 cases, you know the Supreme Court has been routinely granting police officers qualified immunity by summarily reversing lower court rulings that are not giving the police the benefit of the doubt in cases where the state of the law was not clearly-established at the time of the violation. This case is an exception, one of the few immunity cases in the Supreme Court that do not favor the police.

The case is Sause v. Bauer, issued on June 28. This case was lost in the shuffle of the final days of the Supreme Court's 2017-18 term, with all the noteworthy cases about the Muslim travel ban and the coerced-speech union fees case.  What strikes me about this case is the Supreme Court cites no case law whatsoever in holding that the case was improperly dismissed because the police may have violated the plaintiff's clearly-established rights under the First Amendment.

It all started when the police entered plaintiff's apartment in response to a noise complaint "and then proceeded to engage in a course of strange and abusive conduct,before citing her for disorderly conduct and interfering with law enforcement." At one point, plaintiff knelt and began to pray, but one of the officers told her to stop. That makes this a free exercise case under the First Amendment, which protects the right to pray as you wish. While the lower court dismissed the case, the Supreme Court brings it back.

There can be no doubt that the First Amendment protects the right to pray. Prayer unquestionably constitutes the “exercise” of religion. At the same time, there are clearly circumstances in which a police officer may lawfully prevent a person from praying at a particular time and place. For example, if an officer places a suspect under arrest and orders the suspect to enter a police vehicle for transportation to jail, the suspect does not have a right to delay that trip by insisting on first engaging in conduct that, at another time, would be protected by the First Amendment. When an officer’s order to stop praying is alleged to have occurred during the course of investigative conduct that implicates Fourth Amendment rights, the First and Fourth Amendment issues may be inextricable.

After squaring away that issue and noting that the right to pray is a clearly-established right, the Court state that the record is not clear whether the police had entered the apartment without plaintiff's consent, or whether they had some other good reason to be there. "Nor does her complaint state what, if anything, the officers wanted her to do at the time when she was allegedly told to stop praying. Without knowing the answers to these questions, it is impossible to analyze petitioner’s free exercise claim." Plaintiff therefore has her case back.