2nd Circuit: FBI Agents Had Qualified Immunity From RFRA Damages When Muslim Plaintiffs' Religious Objections Were Undisclosed

In Tanvir v. Tanzin, (2d Cir., Oct. 29, 2024), the U.S. 2nd Circuit Court of Appeals dismissed on qualified immunity grounds a case in which the U.S. Supreme Court in 2020 held (see prior posting) that the Religious Freedom Restoration Act permits suits for damages against federal officials. The 2nd Circuit said in part:

... [E]ach of the three Appellants in this case encountered various FBI agents who asked him to serve as an informant in Muslim communities, and each was illegitimately placed or retained on the No Fly List when he declined. Each Appellant possessed a belief, allegedly shared by some other Muslims, that precluded him from serving as an informant in a Muslim community. But no Appellant ever disclosed that view to any agent. Instead, each stated that he: (1) refused to work as an informant because being an informant would endanger himself or his family, or (2) would agree to work as an informant under the right circumstances....

Appellees had no reason to know that their actions encroached on the Appellants’ religious beliefs. As noted above, “[e]ven when we find a right clearly established,” officials are still immune from damages liability if “reasonable persons in their position would not have understood that their conduct was within the scope of the established prohibition.”...

We recognize the Appellants’ view that Muslims in America have been unfairly targeted. But we disagree with their conclusion that a Christian or Jewish plaintiff in like circumstances would have greater success in a RFRA damages suit. No doubt, many would find any effort to recruit informants to infiltrate religious congregations, including Muslim, as well as Christian or Jewish congregations, offensive. We have no reason to assume, however, that a reasonable government official would know that a Christian or Jew could not work with government agents to expose terrorists in her religious community without violating her religious norms. It is far from obvious – indeed, it cannot be the case – that an adherent of either of those (or any) religions could hold an undisclosed religious belief, of which an official had no other reason to know, and then successfully sue the official for monetary damages for pressuring them to act in tension with that undisclosed belief.

Nothing in this ruling should be construed as approving the conduct alleged in the complaint. At its core, the complaint alleges that government agents pressured individuals to serve as informants – at risk to their own and their families’ safety – and to report on the activities of their neighbors and community members by falsely and in bad faith accusing them of terrorism to deny them significant liberties under a program designed to protect lives from genuine terrorists. That is improper behavior, regardless of whether the agents knew of the Appellants’ particular religious beliefs. But in this case, the Appellants’ only remaining legal claim is that the Appellee agents are personally liable in damages for violating their free exercise of religion under RFRA. On the facts alleged, for the reasons discussed above, that claim fails.

FBI Releases 2023 Hate Crime Statistics

Last Monday, the FBI released Hate Crime Statistics for the United States for 2023. A Department of Justice release summarizes the data, and a table released by the FBI shows greater detail. There were 11,862 hate crime incidents in total reported for the year, of which 22.5% (2699 incidents) were crimes motivated by religion. Of the religion-motivated crimes, 1,832 were anti-Jewish.  The next largest numbers motivated by one of the 11 specific religions reported were 236 anti-Muslim, 156 anti-Sikh and 77 anti-Catholic. The total number of hate crimes reported reflects a 2% rise from the 11,634 incidents reported for 2022. The number of religiously-motivated hate crimes reflects a 32% rise from the 2,042 incidents reported for 2022. Anti-Jewish hate crimes rose 63% from the 1,122 incidents reported in 2022. (See prior posting.)

FBI Releases 2022 Hate Crime Statistics

The FBI yesterday released 2022 Crime Statistics, including data on hate crimes (Methodology)  (Data on Incidents). According to the FBI:

In 2022, law enforcement agency participation significantly increased ... with a population coverage of 91.7% submitting incident reports.... There were over 11,000 single-bias hate crime incidents.... [T]he top three bias categories ... were race/ethnicity/ancestry, religion, and sexual-orientation.

The FBI reported 2,042 incidents of religiously-motivated hate crimes. 1,122 of these were anti-Jewish. The next most numerous were 181 anti-Sikh incidents; 158 anti-Muslim and 107 anti-Catholic. President Biden issued a Statement (full text) on the Hate Crime Statistics, saying in part:

The data is a reminder that hate never goes away, it only hides. Any hate crime is a stain on the soul of America.

To those Americans worried about violence at home, as a result of the evil acts of terror perpetrated by Hamas in Israel, we see you. We hear you. And I have asked members of my team ... to prioritize the prevention and disruption of any emerging threats that could harm Jewish, Muslim, Arab American, or any other communities during this time. My Administration will continue to fight Antisemitism and Islamophobia.

FBI Charges Michigan Man with Plotting Mass Casualty Attack at Synagogue

Last week, the FBI filed a Criminal Complaint charging a 19-year-old Michigan man with taking steps to plan a mass casualty suicide attack on a synagogue in Lansing, Michigan. The Criminal Complaint (full text) in United States v. Seann Patrick Pietila, (WD MI, filed 6/16/2023) sets out extensive Instagram postings and alleges in part:

[Pietla] communicated Neo-Nazi style ideology, antisemitism, suicidal ideologies, glorification of past mass shooters (that advocate similar ideology), and a desire and his intent to mimic past mass shooters/mass casualty incidents.

... [He] specifically references admiration for Brenton Tarrant.... Tarrant committed acts of mass murder in New Zealand. On March 15, 2019, Tarrant committed two consecutive mass shootings on Mosques located in New Zealand. Tarrant killed 51 people and injured 40 more. Tarrant live-streamed his attack via Facebook Live.

The Criminal Complaint alleges violation of 18 U.S.C. § 875(c) which bans sending in interstate commerce any communication containing a threat to injure another person, reports:

During the execution of the search warrant, investigators located the following items of evidence: .40 caliber pistol ammunition, .22 caliber ammunition, 12 gauge shotgun ammunition, a 12-gauge shotgun, a .22 caliber rifle, a Sig Sauer .40 caliber pistol (serial # 24B049058), .223 rifle magazines, an Apple iPhone 11, various knives and bladed instruments, scopes and firearms accessories, a camouflage tactical vest, a black tactical vest, black skull masks, a red and white Nazi flag, a ghillie suit, gas masks, and military sniper/survival manuals.

 Law & Crime reports on the charges.

House Committee Seeks Documents on FBI Interest in Radical Traditionalist Catholic Extremists

Yesterday, U.S. House Judiciary Committee chairman Jim Jordan issued a subpoena to FBI Director Christopher Wray seeking documents related to the FBI's attempt to monitor possible violent extremism among radical-traditionalist Catholics.  In an April 10 Committee Press Release (full text), the Committee said in part:

From this limited production, it is apparent that the FBI, relying on information derived from at least one undercover employee, sought to use local religious organizations as “new avenues for tripwire and source development.”... 

The FBI similarly noted two other opportunities to engage in outreach with religious institutions in the Richmond area, citing a desire “to sensitize the congregation to the warning signs of radicalization and enlist their assistance to serve as suspicious activity tripwires.” This outreach plan even included contacting so-called “mainline Catholic parishes” and the local “diocesan leadership.” 

The subpoena cover letter (full text) says in part:

The Committee on the Judiciary is conducting oversight of the Federal Bureau of Investigation’s (FBI) handling of domestic violent extremism investigations against Catholic Americans and its effect on protected First Amendment activity....

We have repeatedly sought information from the FBI relating to a January 23, 2023 document generated by the Richmond Field Office entitled “Interest of Racially or Ethnically Motivated Violent Extremists in Radical-Traditionalist Catholic Ideology Almost Certainly Presents New Mitigation Opportunities”.... In this document, the FBI purported to categorize Catholic Americans based on theological distinctions and relied on the Southern Poverty Law Center to suggest that certain kinds of Catholic Americans may be domestic terrorists.

A report by Bloomberg on the subpoena adds:

There was no immediate response from Wray, but he told senators last month that the document “does not reflect FBI standards” and the bureau “took steps immediately to withdraw it and remove it from FBI systems.”

“We do not conduct investigations based on religious affiliation or practices, full stop,” Wray told the Senate Intelligence Committee.

Supreme Court In Muslim Surveillance Case Says State Secrets Doctrine Survives FISA

The U.S. Supreme Court today, in a unanimous opinion written by Justice Alito issued a narrow decision in Federal Bureau of Investigation v. Fazaga, (Sup. Ct., March 4, 2022). The case involves a class action lawsuit filed by Muslims in California who claim they were subjected to illegal surveillance. The district court dismissed the suit under the "state secrets" doctrine.  The 9th Circuit reversed holding that FISA displaced the state secrets doctrine. The Supreme Court held that FISA does not displace the state secrets doctrine, but did not resolve the parties disagreement about the interpretation of the relevant portion of FISA, nor did it decide whether the district court was correct in dismissing the suit on the pleadings. Deseret News reports on the decision.

Supreme Court Grants Cert. In Challenge To Surveillance of Muslims

The U.S. Supreme Court today granted review in Federal Bureau of Investigation v. Fagazi, (Docket No. 20-828, certiorari granted 6/7/2021). (Order List). In the case, a 3-judge panel of the 9th Circuit held that three Muslim plaintiffs may move ahead with many of their claims growing out of an FBI investigation that they allege involved unlawful searches and anti-Muslim discrimination. Subsequently the panel filed an amended opinion and the 9th Circuit denied en banc review. However, ten judges joined all or most of an opinion dissenting from the denial of en banc review. At issue is the relationship between the provisions of FISA and the state secrets privilege. Here is the SCOTUSblog case page with links to all the filings in the case. Politico has additional background.

FBI Releases 2019 Hate Crime Statistics

This week, the FBI released its 2019 Hate Crime Statistics. According to the Report, of the 7,103 single-bias incidents, 19.9% of the offenses, and 21.4% of the incidents, were motivated by religious bias. Of the offenses motivated by religious bias:  60.3% were anti-Jewish; 13.3% percent were anti-Islamic (Muslim); 4.0% were anti-Catholic; 3.6% were anti-Other Christian; 3.0% were anti-Sikh; 2.8% were anti-Eastern Orthodox (Russian, Greek, Other); 2.5 percent were anti-multiple religions; 1.5% were anti-Protestant; 0.8% were anti-Mormon; 0.4% were anti-Hindu; 0.4% were anti-Jehovah’s Witness; 0.4% were anti-Atheism/Agnosticism; 0.3% were anti-Buddhist. The prior year's report showed 20.2% of the offenses motivated by religious bias. (See prior posting.) ADL issued a press release commenting on the Report, as did Muslim Advocates.

9th Circuit: En Banc Review Denied In Suit Over FBI Surveillance of Muslims

In February 2019, a 3-judge panel of the 9th Circuit in Fazaga v. Federal Bureau of Investigation held that three Muslim plaintiffs may move ahead with many of their claims growing out of an FBI investigation that they allege involved unlawful searches and anti-Muslim discrimination. (See prior posting.) Now in Fazaga v. Federal Bureau of Investigation, (9th Cir., July 20, 2020), the panel filed an amended opinion and the court denied en banc review. Five judges joined an opinion concurring in the denial of en banc review. Ten judges joined all or most of an opinion dissenting from the denial of en banc review. At issue was the relationship between FISA and the state secrets privilege.

FBI Releases 2018 Hate Crime Statistics

Today the FBI released its 2018 Hate Crime Statistics. In 2018, 7,120 hate crime incidents were reported to the FBI by law enforcement authorities. These involved 8,496 offenses,  That was down from 7,175 incidents in 2017. Of 7,036 single-bias incidents, 20.2% (1,550 offenses) were motivated by religious bias.  57.8% of the religiously motivated incidents were anti-Jewish.  The next largest group of religiously motivated hate crimes were 14.5% which were anti-Muslim. 4.1% were anti-Sikh. 3.8% were anti-Catholic. Following release of the data, the ADL issued a press release saying in part:

It is unacceptable that Jews and Jewish institutions continue to be at the center of religion-based hate crime attacks.... We strongly urge Congress to immediately pass the Khalid Jabara and Heather Heyer National Opposition to Hate, Assault, and Threats to Equality (NO HATE) Act.

Former Priest Charged With Lying To FBI

The U.S. Attorney's Office for the Eastern District of Pennsylvania announced yesterday that it has charged former Catholic priest Robert Brennan with four counts of making false statements in order to  obstruct an investigation into complaints that he sexually abused a child when he was serving as a priest in Philadelphia. AP reports on the indictment. State criminal charges against Brennan had been dropped after his alleged victim died in 2013 of a drug overdose.

9th Circuit: Suit Against FBI For Anti-Muslim Surveillance May Move Ahead

In Fazaga v. Federal Bureau of Investigation, (9th Cir., Feb. 28, 2019), the U.S. 9th Circuit Court of Appeals in a 103-page opinion held that three Muslim plaintiffs may move ahead with many of their claims growing out of an FBI investigation that they allege involved unlawful searches and anti-Muslim discrimination. The court in a lengthy summary of its holdings said in part:

Addressing plaintiffs’ claims arising from their allegations that they were targeted for surveillance solely because of their religion, the panel first held that the First Amendment and Fifth Amendment injunctive relief claims against the official-capacity defendants may go forward. Second, concerning plaintiffs’ Bivens claims seeking monetary damages directly under the First Amendment’s Establishment and Free Exercise Clauses and the equal protection component of the Fifth Amendment’s Due Process Clause, the panel concluded that the Privacy Act and the Religious Freedom and Restoration Act (“RFRA”), taken together, provided an alternative remedial scheme for some, but not all, of their Bivens claims....  Fourth, concerning plaintiffs’ claims that Agent Defendants and Government Defendants violated RFRA by substantially burdening plaintiffs’ exercise of religion, and did so without a compelling government interest without the least restrictive means, the panel held that it was not clearly established in 2006 or 2007 that defendants’ covert surveillance violated plaintiffs’ freedom of religion protected by RFRA. The panel affirmed the district court’s dismissal of the RFRA claim as to the Agent Defendants because they were not on notice of a possible RFRA violation.

UPDATE: Los Angeles Times reports on the decision.

FBI Releases 2017 Hate Crimes Report

Yesterday the FBI released  its 2017 Hate Crime Statistics. The number of hate crime incidents increased 17% from last year-- 6,121 incidents in 2016 and 7,175 in 2017. However the year-to-year data may not be fully comparable since 1,000 additional agencies reported in 2017.  In 2017, hate crimes motivated by religious bias accounted for 1,564 incidents (totaling 1,679 offenses), or 22% of all incidents. This compares with 1,273 incidents in 2016. (See prior posting). Hate crimes based on race comprised 58% of all incidents in 2017.  Of the religiously-motivated hate crimes in 2017, some 938 (60%) were anti-Jewish while 273 (17%) were anti-Muslim. 73 incidents were anti-Catholic. ADL issued a press release analyzing the report.

The FBI and Religion Is Studied

Salon today has posted an interesting article titled How the FBI Is Hobbled by Religious Illiteracy.  Much of it is an interview with University of Pennsylvania Prof. Steven Weitzman.  Introducing the interview, interviewer Emma Green says in part:

The story of the FBI and religion is not a series of isolated mishaps, argues a new book of essays edited by Steven Weitzman, a professor at the University of Pennsylvania, and Sylvester A. Johnson, a professor at Northwestern University. Over its 109 years of existence, these historians and their colleagues argue, the Bureau has shaped American religious history through targeted investigations and religiously tinged rhetoric about national security.

At times, the Bureau has operated according to an explicit vision of protecting Christianity, as it did during the tenure of J. Edgar Hoover, the longtime director of the FBI. But in other cases, it has operated with religious ignorance.

9th Circuit Hears Arguments In Suit Over FBI Infiltration of Mosques

Yesterday the U.S. 9th Circuit Court of Appeals heard oral arguments (video of full arguments) in Fazaga v. FBI.  The class action lawsuit against the FBI and FBI agents alleges that the government wrongfully spied on mainstream mosques in Southern California and targeted Muslims for surveillance because of their religion. (ACLU case page.)  In the case, a California federal district court dismissed claims against the FBI because of the state secrets privilege, agreeing that national security would be endangered by disclosing targets in counter-terrorism investigations. The court, however, permitted claims under the Foreign Intelligence Surveillance Act against individual FBI agents and supervisors to proceed. (See prior posting.) Politico reports on yesterday's oral arguments, in which all the questions to counsel were asked by Judge Berzon.

FBI Delays Website Designed To Counter ISIS Recruiting After Complaints That It Stigmatizes Muslim Students

Think Progress reports that on Monday, the FBI at least temporarily delayed the launch of its "Don't Be A Puppet" website which was designed to undercut recruitment efforts of extremist groups such as ISIS.  As reported by the New York Times, the website "leads the viewer through a series of games and tips intended to teach how to identify someone who may be falling prey to radical extremists." However community organizations expressed concern that school teachers do not have the expertise to identify those being radicalized and that the website will stigmatize Arab and Muslim students.  The director of the Sikh Coalition complained that schoolchildren face a much greater threat from gun violence that from Muslim extremism.

FBI Approves Revised Hate Crime Data Collection Manual

On Feb. 27, the FBI approved a revised version of its Hate Crime Data Collection Guidelines And Training Manual.  The new version adds definitions and scenarios for categories of hate crimes on which data is to be collected for the first time beginning this year-- anti-Sikh, anti-Hindu and anti-Arab hate crimes. (See prior posting.) [Thanks to Michael Lieberman for the lead.]

Suit Claims FBI Infringes Muslims' Free Exercise Rights By Using No Fly List To Coerce Them To Become Informants

The Center for Constitutional Rights yesterday announced the filing of a lawsuit against the FBI on behalf of four American Muslim men who were placed on the No-Fly List after they refused to work as FBI informants in their religious communities, or were told they would be removed from the List only if they agreed to work with the FBI.  The complaint (full text) in Tanvir v. Holder, (SD NY, filed 4/22/2014) claims that the FBI's actions violate plaintiffs' procedural due process rights, 1st Amendment free exercise rights and the Religious Freedom Restoration Act. It alleges in part:

65.  Many American Muslims, like many other Americans, and many followers of other religions, have sincerely held religious and other objections against becoming informants in their own communities, particularly when they are asked to inform on the communities as a whole rather than specific individuals reasonably suspected of wrongdoing. Acting as an informant would require them to lie and would interfere with their ability to associate with other members of their communities on their own terms. For these American Muslims, the exercise of Islamic tenets precludes spying on the private lives of others in their communities.

66. The FBI uses the No Fly List to coerce American Muslims into becoming informants and to retaliate against them when they exercise constitutionally protected rights.

Washington Post reports on the lawsuit.