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.

10th Circuit: Jail Violated Free Speech Rights of Volunteer Minister

In Jarrard v. Sheriff of Polk County, (11th Cir., Sept. 16, 2024), the U.S. 11th Circuit Court of Appeals held that Georgia jail officials violated the free speech rights of a volunteer county jail minister. Irritating both jail officials and other volunteer jail ministers, Rev. Jarrard believed and taught that baptism by immersion is necessary to salvation and that, without it, a person will be condemned to Hell. Policies governing participation as a volunteer minister went through a number of revisions. Ultimately, they resulted in Jarred being excluded from the program and baptism of inmates being prohibited. The court said in part:

At least for summary-judgment purposes, therefore, we conclude that Moats and Sharp engaged in viewpoint discrimination based on their disagreement with Jarrard’s beliefs about baptism.  We further conclude that their disapproval of his volunteer ministry application can’t survive strict scrutiny.  ...Moats and Sharp assert that they denied Jarrard’s applications for fear that his participation in the volunteer ministry program would “(1) tend to undercut inmate well-being and (2) unreasonably create problems for jail administrators.”  Even if we were to indulge those assertions ...  and even assuming that they constitute compelling governmental interests, denying Jarrard’s application was not the least restrictive means of achieving those ends.  As just one example, the Jail could have posted notices stating that Jarrard would be addressing a potentially contentious topic and let the inmates decide whether they wanted to attend....  So too, they could have allowed other volunteer ministers to opt out of working with Jarrard so as to reduce the risk of contentious interactions.  And to the extent that they were worried about security issues related to the performance of baptisms, they could have instituted precautions to minimize them.  They could, for instance, have limited attendance at an inmate’s baptism or required an inmate being baptized to be shackled throughout the process to reduce risk of escape.  There is no indication that Moats and Sharp attempted to take any such (or other similar) steps.....

The court also found that two versions of the policy gave jail administrators unbridled discretion in passing on volunteer ministers' applications. 

 Judge Rosenbaum filed an opinion dissenting in part, contending that insofar as damages were sought from the sheriff and his chief deputy, they were protected by qualified immunity.

Connecticut Supreme Court: Constitutional (But Not Statutory) Challenges to Removal of School Vaccination Religious Exemptions Barred by Sovereign Immunity

In Spillane v. Lamont, (CT Sup. Ct., July 30, 2024), the Connecticut Supreme Court in a complicated opinion held that the doctrine of sovereign immunity bars constitutional claims asserted in a class action suit by school parents against the governor, the commissioners of education and of public health, and two boards of education. Plaintiffs were challenging the legislature's removal of previously available religious exemptions from school vaccination requirements. Under Connecticut law, sovereign immunity for constitutional claims is waived only when actions for declaratory relief or an injunction allege a substantial claim that the state or a state official has violated plaintiffs' constitutional rights. Here plaintiffs did not have a substantial claim that their free exercise or equal protection rights under the federal constitution were violated, nor that their right to education under the Connecticut constitution was violated.

However, the Supreme Court agreed with the trial court that plaintiffs' statutory claim under the Connecticut Religious Freedom Restoration Act was not barred by sovereign immunity. Connecticut's RFRA waived sovereign immunity for violations and applying the Act here does not violate the principles that one legislature may not bind the authority of a later one or that enactments are presumed to repeal inconsistent portions of prior legislation.

(See prior related posting.) WTNH News reports on the decision.

Qualified Immunity Granted in Denial of Religious Exemption from Vaccine Mandate

In Babiy v. Oregon Health and Science University, (D OR, April 22, 2024), an Oregon federal district court dismissed claims for damages brought against a medical school and involved individuals by a patient access specialist who was denied a religious exemption from its Covid vaccine mandate. The University's policy was to deny religious exemptions where their claim was based solely on fetal cell concerns. The court said in part:

... Plaintiff has failed to prove that it was clearly established at the relevant time that the Doe Defendants were barred from (1) attempting to distinguish between religious and secular objections to a vaccine or (2) in that effort, denying exemptions to a state-mandated vaccine mandate to employees who expressed ostensibly religious objections to the use of fetal cells in the development of the vaccine. Accordingly, the Court grants Defendants’ Motion and dismisses Plaintiff's second claim under the doctrine of qualified immunity to the extent that Plaintiff seeks damages. The Court, however, denies Defendants’ Motion to the extent that Plaintiff seeks declaratory or injunctive relief under her first amendment claim.

Statutory Changes Allow Suit for Sex Abuse Against Jehovah's Witnesses Congregations

In C.P. v. Governing Body of Jehovah's Witnesses, (NJ App., Nov. 15, 2023), a New Jersey appellate court affirmed a trial court's denial of summary judgement to Jehovah's Witnesses congregations and governing bodies. Plaintiff C.P. was sexually abused by Charles, her grandfather.  During the years the abuse was occurring, Charles also served as an elder at two Jehovah's Witnesses congregations.  In a 1994 lawsuit, plaintiff was awarded over $2.2 million in damages from her grandfather. Subsequently New Jersey's Charitable Immunity Act and statute of limitations were amended so that plaintiff could now sue the congregations involved, and this suit followed.  The court explained:

According to plaintiff, defendants knew Charles had engaged in sexual conduct with at least three minors—including herself—but did not discipline him and negligently retained him as an elder—a spiritual leader and mentor. Plaintiff claims defendants knew incidents of sexual abuse by their agents was prevalent within their organizations but nevertheless protected Charles and other sexual abusers from criminal prosecution through "mandated secrecy" policies and practices. Plaintiff also alleges defendants owed a "special duty" to protect her from her grandfather's sexual criminal acts because they held themselves out as "being able to provide a safe environment" for children. Ultimately, plaintiff contends Charles was disfellowshipped—excommunicated as a result of reports about and his admission to sexual misconduct, and therefore, defendants engaged in willful, wanton, or grossly negligent conduct.

Defendants claimed that the "entire controversy doctrine" and judicial estoppel bar the present suit. The court disagreed, saying in part:

As the trial court found, the two litigations involve separate claims. The 1994 action sought damages for harm directly inflicted by Charles; the 2021 action seeks damages from defendants for claims of negligent hiring and retention, alleging defendants knew and allowed Charles—a known child abuser—to serve as an elder in their church, exposing children to sexual molestation.

2nd Circuit Remands Free Exercise Claim of Inmate Who Could Not Attend Religious Services

In Wiggins v. Griffin, (2d Cir., Nov. 20, 2023), the U.S. 2nd Circuit Court of Appeals vacated and remanded a New York federal district court's dismissal of a suit against prison officials by a Baptist inmate who contends that his exercise of religion was burdened when there was a delay of over five months in updating the call-out list for Protestant religious services after plaintiff was moved to a new cellblock. Plaintiff was unable to attend religious services until the list was updated. Because one of the 3 judges on the appeals panel died after argument, the case was decided by a 2-judge panel. The court held that it did not need to decide whether plaintiff needed to show a "substantial burden" or just a "burden" on his free exercise rights since there was evidence from which a jury could find a substantial burden and defendants conceded that a substantial burden was present.  In a concurring opinion, Judge Menashi said in part:

In an appropriate case, we should hold that a prisoner alleging a violation of the Free Exercise Clause under § 1983 need only show a burden on sincerely held religious beliefs—not a “substantial” burden that involves showing that the beliefs are “central.” Three decades is too long for federal judges to be telling litigants which of their religious beliefs are “unimportant.”

The court remanded the case for a jury determination of whether defendants had qualified immunity, saying in part:

[A] jury may find that one or more Defendants purposefully ignored or delayed processing Wiggins’s requests, seeking to deny his participation in communal worship, or may have been deliberately indifferent to Wiggins’s requests. In such a scenario, they would have violated Wiggins’s clearly established right....  But, on the other hand, a Defendant may have simply missed Wiggins’s requests or failed to take extra steps to ensure they were processed. If so, qualified immunity may be appropriate.

The court went on to decide the state of mind necessary to show a violation of the 1st Amendment's free exercise clause: 

The First Amendment‘s command that government not “prohibit” the free exercise of religion... “connotes a conscious act, rather than a merely negligent one,”.... Given this understanding of the First Amendment, isolated acts of negligence cannot violate an individual’s free exercise of religion in this context....

Although mere negligence cannot support a First Amendment free exercise claim, we have previously held that deliberate indifference “clearly suffices.”...

With these principles to guide us, we affirm the district court’s dismissal of the claim against [prison Superintendent] Griffin. Wiggins sent Griffin two letters. Although Griffin left one letter unanswered, he quickly acted upon the second. ... [T]his evidence ... establishes (at most) that Griffin acted negligently in response to the first letter. Such a showing is insufficient. Whether the record suffices to permit a finding that any of the remaining [three] defendants were deliberately indifferent poses a closer question. Instead of single acts of negligence, the record contains sufficient evidence to allow a jury to conclude that one or more of the remaining defendants repeatedly failed to redress Wiggins’s exclusion from the call-out list....

Challenge To Maine's Past Covid Restrictions on Churches Is Dismissed

In In re COVID-Related Restrictions on Religious Services, (DE Super., Aug. 28, 2023), a Delaware Superior Court dismissed a suit challenging now-rescinded restrictions that limited the number of attendees and the activities in houses of worship during the Covid pandemic. The court concluded that the governor had qualified immunity from damage claims because at the time it was not clearly established that these types of restrictions violated the U.S. Constitution. The State Tort Claims Act gives the governor immunity from damage actions for violation of the Delaware Constitution. The court also concluded that there is no case or controversy to give it jurisdiction to issue a declaratory judgment and that plaintiffs lack standing to bring their claims, saying in part:

The Court can have no influence on the alleged past harm caused by the Restrictions when they have already been terminated years ago.

WDEL News reports that plaintiffs plan an appeal to the state Supreme Court.

Challenge To Maine's Elimination of Religious Exemption To School Vaccination Mandate May Move Ahead

Fox v. Makin, (D ME, Aug. 16, 2023), is a challenge to the Maine legislature's removal of religious exemptions from the state's school vaccination requirements.  Plaintiffs' son was denied a religious exemption by the principal and vice-principal of the son's school at the direction of the state commissioner of education. In the case, a Maine federal district court allowed plaintiffs to move ahead with their claims for injunctive and declaratory relief against the Commissioner, principal and vice-principal. The court held that plaintiffs' free exercise claim was subject to strict scrutiny, finding that the vaccination law lacked general applicability. The court said in part:

Maine continues to permit multiple non-religious exemptions, including a 90-day grace period for non-religious students, a medical exemption, and the IEP sunset provision, all of which arguably undermine its student health and safety interests while restricting religious exemptions that may pose comparable risks....

The Court finds it plausible that section 6355 is not narrowly tailored to advance Maine’s interests.

The court also found that defendants had qualified immunity from damage claims, saying in part:

... [I]t was not clearly established during the period alleged in the Amended Complaint that failing to permit a religious exemption to mandatory school vaccination (while providing others certain non-religious exemptions) violates religious objectors’ constitutional rights. Thus, even if the Court were to assume – without deciding – that section 6355 is unconstitutional, it would be “unfair to subject” the Commissioner and the individual School Defendants “to money damages for picking the losing side of the controversy” by complying with section 6355....

6th Circuit: Kentucky Governor Had Qualified Immunity For Covid School-Closing Order

 In Pleasant View Baptist Church v. Beshear, (6th Cir., Aug. 14, 2023), the U.S. 6th Circuit Court of Appeals held that Kentucky Governor Andy Beshear had qualified immunity in a suit challenging his Covid order temporarily barring in-person classes at public and private schools. The suit was brought by a group of churches, private religious schools and parents alleging that the 2020 Covid order violated their free exercise rights (as well as parental rights to send their children to religious schools and  their right to freedom of association). Plaintiffs' request for declaratory relief became moot when the orders were lifted. However, their claims for monetary damages did not. Affirming the district court's finding of qualified immunity, the appeals court said in part:

Neither this court’s nor the Supreme Court’s precedent clearly established that temporarily closing in-person learning at all elementary and secondary schools would violate the Free Exercise Clause when Governor Beshear issued EO 2020-969 on November 18, 2020. As the Governor points out, Plaintiffs have not provided this court with any cases denying a government official qualified immunity for their immediate public-health response to the COVID-19 pandemic.... Because the Governor issued EO 2020-969 in the midst of a vibrant debate on this constitutional issue, he is thus entitled to a qualified-immunity defense. Accordingly, because Plaintiffs cannot demonstrate that a clearly established right existed at the time Governor Beshear issued EO 2020-969....

Judge Murphy filed a concurring opinion.

9th Circuit: U.S. Has Not Waived Sovereign Immunity For Damages Under RFRA

In Donovan v. Vance, (9th Cir., June 13, 2023), the U.S. 9th Circuit Court of Appeals held that claims for injunctive and declaratory relief by Department of Energy employees who objected to the government's Covid vaccine mandate are moot because the Executive Orders being challenged have been revoked. Insofar as employees with religious objections to the vaccine were seeking damages, the court held that the United States has not waived sovereign immunity for damages under RFRA. Plaintiffs had sued federal officials in their official capacity.

Deputy Has Qualified Immunity In Suit Claiming His Failure to Intervene in Establishment Clause Violation

 In White v. Goforth, (6th Cir., May 18, 2023), the U.S. 6th Circuit Court of Appeals held that Sheriff's Deputy Jacob Goforth had qualified immunity in a suit against him for failing to intervene in conduct by Daniel Wilkey, an on-duty officer who is also a preacher. Wilkey called Goforth asking him to witness a baptism at a nearby lake.  The court explained:

Unbeknownst to Goforth, Wilkey had stopped Shandle Riley earlier that evening and found her in possession of marijuana. Wilkey told Riley that if she agreed to let him baptize her, he would issue her a citation and not take her to jail. She agreed and followed Wilkey in her car to a nearby lake. When Goforth arrived, he saw what appeared to be a consensual, if improper, situation.... Critically, however, Goforth never learned of Wilkey’s improper quid pro quo.....

Reversing the Tennessee district court's denial of qualified immunity, the appeals court said in part:

Riley asserts that Wilkey’s coerced baptism of her violated the Establishment Clause. That may well be so. Coercion “was among the foremost hallmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment.”... Threatening jail time for refusing Christian baptism seems an easy fit for this category. But even if Wilkey violated Riley’s constitutional rights, Wilkey is not before us; only Goforth is. There is nothing in the record indicating that Goforth knew of Wilkey’s quid pro quo....

The district court thought that, even absent coercion, it was clearly established that an officer in Goforth’s position would be “liable for failing to intervene if a reasonable observer” would have perceived a governmental endorsement of religion, as defined by the Lemon test and its progeny....We cannot agree. First, Kennedy clarified that the Supreme Court had “long ago abandoned Lemon and its endorsement test offshoot.” ... If that is so, then Goforth could not have had a clearly established duty to stop Wilkey from violating it....

Moreover, we can find no case that had ever found an officer liable where his fault was not his own endorsement of religion, but his failure to intervene in someone else’s.

3rd Circuit: Qualified Immunity Can Be Asserted in RFRA Case, But Not in This One

In Mack v. Yost, (3rd Cir., March 21, 2023), the U.S. 3rd Circuit Court of Appeals in a 2-1 decision held that qualified immunity can be asserted as a defense by prison officers in a suit against them under RFRA, but also concluded that at the summary judgment stage here defendants had not shown facts demonstrating that they are entitled to the defense. The majority summarized its 48-page opinion in part as follows:

When Mack was incarcerated, he worked at the prison commissary, where two supervising prison guards singled him out for harassment because of his Muslim faith. Most significantly, the evidence as it now stands shows that, when Mack would go to the back of the commissary to pray during shift breaks, the guards would follow him and deliberately interfere with his prayers by making noises, talking loudly, and kicking boxes. Fearing retaliation if he continued to pray at work, Mack eventually stopped doing so, but the guards nevertheless engineered his termination from his commissary job. He then sued.

... The guards ... moved for summary judgment ... on the theory that they are entitled to qualified immunity.... [T]he District Court sided with them. It held that ... no clearly established caselaw would have put a reasonable person on notice of the illegality of the guards’ actions. Mack has again appealed.

We agree with Mack that granting summary judgment was wrong. While ... qualified immunity can be asserted as a defense under RFRA, the officers have not – at least on this record – met their burden of establishing that defense.... [E]vidence of the RFRA violation here involved significant, deliberate, repeated, and unjustified interference by prison officials with Mack’s ability to pray as required by his faith. Based on those facts ..., the officers are not entitled to qualified immunity. But if different facts come out at trial, the officers may again raise qualified immunity....

Judge Hardiman dissented, saying in part:

Even accepting the majority’s articulation of the right at issue, I would not find it clearly established here.

The cases Mack cites, as the majority notes, are not factually analogous. And the majority identifies no other precedent—from our Court or elsewhere, before or after RFRA was enacted—sufficiently similar to deny Defendants qualified immunity.

7th Circuit: Protestant Inmate's Prayer Oil Claim Dismissed In Part

In Greene v. Teslik,(7th Cir., March 2, 2023), the U.S. 7th Circuit Court of Appeals agreed that a Protestant inmate's complaint under the Free Exercise clause about the denial of prayer oil should be dismissed, but remanded his Establishment Clause claim.  The court said in part:

Greene ... contends that, by denying his request ... for the same prayer oil allowed to Muslims and Pagans, the defendants violated his rights under the Free Exercise Clause.... [W]e need not answer whether Greene was substantially or unjustifiably burdened when the defendants denied him prayer oil because we agree with the district court that the doctrine of qualified immunity prevents liability on the Free Exercise Clause claim....

Greene cites no case (nor can we find one) clearly establishing that denying access to a prayer accessory akin to a scented oil makes the practice of religion effectively impracticable. Qualified immunity was therefore appropriate....

Greene also claims that the defendants violated the Establishment Clause of the First Amendment....

[D]efendants contend that in 2013 it was not clearly established that, by denying Greene prayer oil, they would substantially burden his religion.... But that is not the right inquiry under the Establishment Clause. It has long been clearly established that “the Establishment Clause may be violated even without a substantial burden on religious practice.”... It thus “could not reasonably be thought constitutional,”...for prison staff to treat prisoners differently based on their religion—unless they present evidence that Greene was insincere or a security threat....The defendants did not do so....

[A]ny potential recovery is limited to nominal damages only. Under 42 U.S.C. § 1997e(e), Greene may not recover compensatory damages for emotional or mental injuries from a constitutional violation unless a physical injury also occurred....

FBI Agents Have Qualified Immunity in Suit by Muslims Placed on No-Fly List for Refusing to Spy on Their Communities

On remand from the U.S. Supreme Court (see prior posting), a New York federal district court in Tanvir v. Tanzin, (SD NY, Feb. 24, 2023), held that FBI agents who placed or kept plaintiffs on the federal no-fly list in retaliation for their refusal to act as informants on their Muslim communities have qualified immunity in a suit for damages under RFRA. Plaintiffs contend that gathering information on fellow Muslims contravenes their religious beliefs.  The court concluded that FBI agents had not violated a clearly established law, saying in part:

The Court is sympathetic to Plaintiffs, who claim that, despite never posing a threat to aviation security, they were, for years, unable to visit ailing loved ones outside of the United States, burdened financially with the loss of job opportunities which required them to travel, and repeatedly forced to endure the basic indignity of being denied boarding passes for flights to which they had legitimately purchased tickets. Accepting their allegations as true, Plaintiffs were subjected to this treatment by way of the FBI’s misuse of the No Fly List simply because they were Muslim, and because they refused to spy on other members of their faith. 

Nevertheless—and notwithstanding varied criticisms of the doctrine of qualified immunity, the Court is required to apply the law faithfully to the issues before it....

At the time of Defendants’ alleged activity, no federal court had addressed claims—let alone actually held—that law enforcement pressuring individuals to inform on members of their religious communities through retaliatory or coercive means substantially burdened their religious exercise in violation of RFRA. Plaintiffs point to four cases in an attempt to make out their claim of clearly established law at the time of the alleged violations, but each of those cases are plainly distinguishable.....

Street Preacher Loses His Free Speech Lawsuit

In Sessler v. City of Davenport, (SD IA, Nov. 22, 2022), an Iowa federal district court dismissed a suit for damages and injunctive relief brought by a street preacher who claimed that his free speech rights were violated when he and others with him were required to move from the location at which they were preaching during the city's Street Fest and continue their preaching from another location. According to the court:

Sessler and his group carried signs on extendable poles with messages including: "Hell is enlarged for adulterers . . . homosexuals . . . abortionists" and "Warning! If you are involved in sex out of marriage[,] homosexuality[,] drunkenness[,] night clubbing . . . you are destined for a burning hell[.]" 

The court concluded that Street Fest was a limited public forum, and plaintiff's removal was reasonable and viewpoint neutral.  It went on to say in part:

Sessler has failed to carry his burden of showing Behning, Smith, and Alcala violated a clearly established right, even if Street Fest is considered a traditional public forum. The case law discussed by Sessler does not show a member of the public has a right to continue preaching at a permitted event open to the public after event organizers requested his removal due to complaints that his preaching was driving customers away from fee-paying vendors. Rather, the case law on point suggests a reasonable officer could have concluded Sessler had no constitutional right to continue preaching within the boundaries of Street Fest following such complaints, as long as he was permitted to continue preaching across the street from an entrance to Street Fest. The Officers violated no clearly established right, so they are entitled to qualified immunity from Sessler's claims against them.

5th Circuit Hears Oral Arguments On Alabama COVID Limits On Religious Gatherings

 On Oct. 3, the 5th Circuit U.S. Court of Appeals heard oral arguments (audio of full arguments) in Spell v. Edwards. Former Alabama Supreme Court Chief Justice and U.S. Senate candidate Roy Moore argued for appellant. In the case, a Louisiana federal district court dismissed a challenge to a now expired COVID Order limiting the size of religious gatherings. The district court dismissed because the challenged restrictions had already expired, and defendants had qualified immunity in the claim for damages. (See prior posting.) AP reports on the oral arguments.

Qualified Immunity Protects Defendants Who Denied Religious Exemptions From COVID Vaccine Mandate

In Jane Does 1-11 v. Board of Regents of the University of Colorado, (D CO, Sept. 29, 2022), a Colorado federal district court dismissed a number of claims by current and former students and employees of the University of Colorado who were denied religious exemptions from the University's COVID vaccine mandate. Some of the claims were dismissed on mootness and sovereign immunity grounds. Other claims were dismissed on qualified immunity grounds, with the court saying in part:

Given the unprecedented nature and global scope of the Covid-19 pandemic as well as its devastating impacts, the Court finds the allegations in the Complaint do not establish that these Defendants acted unreasonably in light of existing precedent and in the specific context of this case. Therefore, at a minimum, they did not violate Plaintiffs’ clearly established rights.

6th Circuit Affirms That County Clerk Kim Davis Had No Qualified Immunity Defense

In Ermold v. Davis, (6th Cir., Sept. 29, 2022), the U.S. 6th Circuit Court of Appeals affirmed a Kentucky federal district court decision that Rowan County Clerk Kim Davis does not have qualified immunity in a suit against her for stopping the issuance of all marriage licenses to avoid issuing licenses to same-sex couples. The court said in part:

[P]laintiffs have not only “alleged” but also now “shown” that Davis violated their constitutional right to marry.... And, as we held three years ago, that right was “clearly established in Obergefell.”

The court held that insofar as Davis has raised a free exercise defense under the First Amendment, that issue should be resolved when the case goes to trial and not at the current motion-to-dismiss stage. [Thanks to Thomas Rutledge for the lead.]

11th Circuit: Muslim Prison Chaplain Loses Suit Over Exclusions From Execution Chamber

In Maisonet v. Commissioner, Alabama Department of Corrections, (11th Cir., Sept. 16, 2022), the U.S. 11th Circuit Court of Appeals affirmed the dismissal of a suit by a Muslim volunteer Chaplain who claimed that his free exercise rights were infringed when he was prevented from being in the execution chamber when two inmates to whom he ministered were executed. The court held that the chaplain lacked standing to obtain declaratory or injunctive relief because he did not identified any death row inmate whose execution he will be unable to attend in the future. Alabama now allows chaplains in the execution chamber. The court concluded that the chaplain did have standing to pursue his claim for damages in the cases of the two inmates whose executions he was unable to attend previously. However qualified immunity shields defendants from liability.

Religious Discrimination Claims Against Child Protective Services Meet Procedural Hurdles

In Gautreaux v. Masters, (WD TX, Aug. 29, 2022), a Texas federal magistrate judge recommended that the court dismiss some or all of the free exercise and due process claims brought by foster parents who were accused by the Texas Department of Family and Protective Services (DFPS) of child abuse. The opinion describes plaintiffs' allegations:

[DFPS] asked the couple to identify their religion during the application process, and they identified themselves as practicing members of the Church of Jesus Christ of Latterday Saints.... Gautreaux alleges that DFPS demonstrated "hostility toward the Gautreauxes' religion" at their initial interview, while their follow-up interview "exclusively concerned the Gautreauxes' religious practices and beliefs."...

... DFPS informed Gautreaux that the department had found there was "reason to believe" she had committed the alleged abuse, resulting in Gautreaux being placed on the DFPS central registry "as a child abuser." ... Gautreaux alleges that DFPS's decision was motivated by religious "animus" and that there was no evidence of abuse to support the finding....

Gautreaux alleges that she is unable to practice her religion as a result of her placement on the DFPS central registry. Specifically, Gautreaux alleges that she cannot participate in her "calling" - an assignment made by Church leaders - which is to "teach singing to children in her local church."

In a lengthy opinion, the Magistrate Judge recommended either that all the claims be dismissed under the Younger abstention doctrine, or alternatively that most of plaintiffs' free exercise claims be dismissed because of 11th Amendment sovereign immunity. Under the alternative recommendation, the court could move ahead on  claims challenging DFPS's policies of considering religious beliefs and practices as a concern in abuse investigations and its disregarding of inconsistent court rulings.