In Shash v. City of Pueblo, (D CO, March 14, 2025), plaintiff who was a leader in the southern Colorado Native American Community Church of Aztlan brought a variety of claims against the city, state police and other state agencies growing out of his arrest and DUI charges brought against him after an auto accident. Among the claims were alleged violations of plaintiff's free exercise rights under RLUIPA and the federal and state constitutions. According to the court:
Plaintiffs allege that Trooper Chavez denied Mr. Shash the opportunity to take a breath test and effectively placed Mr. Shash in a position where he had to submit to a blood test or be charged with DUI.... Plaintiffs argue that this constitutes a substantial burden on Mr. Shash’s First Amendment right to free exercise of his religious beliefs, which prohibit blood draws outside a ceremonial context.
The court dismissed plaintiff's RLUIPA claim, saying in part:
RLUIPA provides that “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution.”...
Because Plaintiffs allege that Mr. Shash was never taken to jail, ... the Parties dispute whether Mr. Shash was ever “confined to an institution” for RLUIPA purposes.... [W]hile Mr. Shash raises arguments relevant to a finding that he was in “pretrial detention,”..., he omits any discussion of whether his time in the Trooper Defendants’ custody was spent in a “facility.” The Court thus agrees with Defendants that Mr. Shash was never “residing in or confined to” a qualifying institution.
The court dismissed plaintiff's 1st Amendment free exercise claim on qualified immunity grounds, saying in part:
While Plaintiffs allege that Mr. Shash made an “inquiry” regarding his right to decline a blood test that was “based on his right to religious exercise,” there is no allegation that Mr. Shash disclosed his religious beliefs to any Defendant, nor that Trooper Chavez was ever aware of Mr. Shash’s religious beliefs.... In other words, Plaintiffs fail to allege that Trooper Chavez purposefully imposed a substantial burden on Mr. Shash’s free-exercise rights.... Because Plaintiffs have not identified a clearly established First Amendment right implicated by Trooper Chavez’s conduct, Trooper Chavez is entitled to qualified immunity.
The court refused to exercise supplemental jurisdiction over plaintiff's state free exercise claim because it poses a novel question of the degree of scienter required for a violation of the state's free exercise protections in a suit against state officials. Colorado has not adopted a qualified immunity defense.
