Religious headwear case prevails in the Second Circuit

This Jewish inmate wore at Tsalot-Kob, a religious headwear, because his yarmulke did not fit over his dreadlocks. But a prison directive said that only Rastafarians could wear Tsalot-Kobs. This meant that plaintiff could not wear his. Plaintiff sued the prison under the Religious Land Use and Institutionalized Persons Act, as well as the First Amendment's Free Exercise Clause. The district court said the defendants were entitled to qualified immunity, and the case was dismissed. The Court of Appeals rules in favor of the plaintiff.

The case is Barnes v. Fedele, a summary order issued on May 29. This case reached the Second Circuit a few years ago. Back then, it reinstated the case after the district court had dismissed it, and the appellate court directed the district court to deal with the qualified immunity inquiry. This immunity allows the defendants to avoid suit if they did not violate clearly established case law in violating the plaintiff's rights.

Back in the district court, several prison officials signed affidavits explaining why they enforced the policy as they did, basically saying that they believed religious head coverings could be used to hide contraband, drugs or weapons. Allowing Rastafarians only to wear the head coverings meant that jail officials had fewer searches to conduct. No one submitted any sworn statements about the legitimate penological interests that would justify this directive. The trial court dismissed the case.

The Court of Appeals (Sack, Wesley and Chin) notes that qualified immunity protects state defendants from litigation if the law was not clearly established at the time of the violation. But the law guiding this case was clearly established in that courts have already held that prisons may abridge freedoms if the directives are reasonably related to legitimate penological objectives. Also, courts have held that visual body cavity inspections can be conducted in jail even without probable cause to ensure that no one is smuggling contraband.

The officers who applied the policy get qualified immunity because that immunity protects people who enforce even illegal policies. But the man responsible for the policy, Nuttall, does not get qualified immunity. He is liable because the cases have long held that "prison officials may only abridge a prisoner's free exercise rights if doing so is reasonably related to some legitimate penological interests." That derives from Ford v. McGinnis, 352 F.3d 582 (2d Cir. 2003). While this defendant says that issue statement is too broad for qualified immunity purposes, and that it therefore ignores Supreme Court authority requiring narrow issue statements for immunity purposes, the Second Circuit does not see it that way. The problem for Nuttall is that he did not submit an affidavit explaining his rationale for the policy. Why Nuttall did not submit an affidavit, I know not. For that reason, he cannot get summary judgment on qualified immunity grounds.