9th Circuit: Immunity Protects Several Defendants In Lease and Sale of Homeless Shelter To Religious Group

In Community House, Inc. v. City of Boise, (9th Cir., Oct. 6, 2010), the 9th Circuit Court of Appeals held that the mayor and individual members of city council of Boise, Idaho enjoyed absolute legislative immunity in a suit charging that their approval of a lease and eventual sale of of a homeless shelter to the Boise Rescue Mission violated the Establishment Clause and the federal Fair Housing Act.  They may not be sued individually for either damages on injunctive relief. The court went on to hold that two city development officials enjoyed qualified immunity from a claim for damages in their individual capacities because at the time of the lease and sale a reasonable official would not have known that the actions violated the Establishment Clause or the FHA. The majority wrote:

Faced with a dearth of binding case law on the subject of non-profit leases to religious organizations — and a Fourth Circuit case holding that “rent discrimination” based on religion was unconstitutional — a reasonable official would not have known that the BRM lease violated the Establishment Clause.... Given that no other non-profit organizations were willing or able to keep the doors of the shelter open, the decision to lease the building to the BRM was reasonable....

With respect to the option to purchase, case law before 2005 suggested that, generally, a sale of public property to a religious organization for less than market value would likely violate the Establishment Clause.... But no case in the Ninth Circuit or elsewhere had held that a below-market sale would be unconstitutional where the organization also executed an important city policy and saved the city money...

Thus plaintiffs are limited to suing the city and city council and the development officials in their official capacity. Chief Judge Kozinski filed a concurring opinion.