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.
