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.....
