Without early qualified immunity, religious freedom case against federal prison will proceed

The Court of Appeals holds that two practicing Muslims may proceed with their lawsuit against a federal correctional facility for disallowing them from praying in accordance with the requirements of their religion. The Court throws in some language about how qualified immunity is often inappropriate at the motion to dismiss stage.

The case is Sabir v. Williams, issued on June 17. Plaintiffs argue that they have to pray five times a day. If you review Second Circuit religious freedom cases, you've seen that allegation before. The federal prison system certainly knows about that requirement. But it told plaintiffs they could not pray in the prison auditorium and could only do so in the prison chapel. But plaintiffs argue that the chapel is frequently unavailable. To avoid discipline, plaintiffs refrained from their religious rituals. Hence this lawsuit, brought under the First Amendment and the Religious Freedom Restoration Act.

The state moved to dismiss the case pre-discovery, claiming they are protected by qualified immunity, which says you can't sue government defendants if the law was not clearly-established, as defined by Second Circuit and Supreme Court authority. The Court of Appeals (Sack, Walker and Carney) notes that it said in 1993 that "it is well established that prisoners have a constitutional right to participate in congregate religious services." That language dooms the qualified immunity argument. Moreover, plaintiff satisfied their pleading burden in claiming the prison's rules substantially burden their religious exercise, as they had to choose between honoring their religious beliefs or being sent to solitary confinement. (The Court notes that the minimum-security prison gives inmates much autonomy and they can walk around and partake in fitness classes, card games, a weight room and a music room, so solitary confinement is going to be a real bummer).

For defendants to win this case, they have to show the prayer rules are the least restrictive means of furthering a compelling state interest. That's the Religious Freedom Restoration Act for you, enacted in 1993 after the Supreme Court scaled back religious freedom rights under the First Amendment. Since the complaint does not concede the government can make out that defense, the Court cannot say with any certainty that the prison had to restrict plaintiffs' prayer rights. Maybe discovery will shed light on that issue, but not pre-discovery when all we have is the complaint. 

As for qualified immunity, the Court reminds us that this defense is not really suitable for Rule 12 motion practice. Yes, the government can win this immunity this early if it is clear there is no clearly-established right, but that is the exception. "Such a defense faces a formidable hurdle ... and is usually not successful," the Court says. On the facts as alleged by plaintiffs, immunity cannot attach, and it's off to discovery we go.