Excerpted From: Nicole B. Godfrey, The Religious Freedom Restoration Act, Federal Prison Officials, and the Doctrinal Dinosaur of Qualified Immunity, 98 New York University Law Review 1045 (October, 2023) (359 Footnotes) (Full Document)


NicoleBGodfrey.jpegIn recent years, the Supreme Court has dramatically changed the law governing religious liberty claims. At the same time, the continued killings of Black men like Tyre Nichols and George Floyd by police officers have amplified long-asserted criticisms of qualified immunity doctrine and its impact on law enforcement accountability. At first glance, these two phenomena appear unrelated, and one might ask what the Supreme Court's current expansive view on religious liberty has to do with calls to reform qualified immunity. But because of a 2020 decision by the Supreme Court, there is a niche area where these two doctrines are currently colliding in the lower federal courts: religious liberty claims for damages asserted against federal prison officials for burdens placed on the religious exercise of people incarcerated in federal penitentiaries. This Article explores that collision.

In December 2020, the Supreme Court decided Tanzin v. Tanvir, holding that the Religious Freedom Restoration Act (RFRA) allows for money damages as a remedy against federal officials sued in their individual capacity for violations of the statute. Plaintiffs Muhammad Tanvir, Jameel Algibhah, Naveed Shinwari, and Awais Sajjad sued several Federal Bureau of Investigation (FBI) agents for violating their religious rights (among other claims). After the terrorist attacks of September 11, 2001, FBI agents asked each of the plaintiffs, all Muslim, to become FBI informants. The plaintiffs declined, as doing so would violate their sincerely held religious beliefs. In response, the FBI agents placed the plaintiffs on the United States government's “no fly” list. Subsequently, the plaintiffs filed suit and requested an injunction requiring the government to remove their names from the “no fly” list and damages for the violation of their rights by the FBI agents. Predictably, after they filed suit, the Department of Homeland Security immediately told the plaintiffs that they could fly, and the government argued that the claims for injunctive relief became moot. Eventually, the parties agreed to dismissal of the injunctive claim without prejudice, leaving only the damages claims at issue.

The Southern District of New York, however, determined that no damages remedy existed for the violation of the plaintiffs' RFRA rights and entered final judgment in favor of the government defendants. An appeal followed, and the United States Court of Appeals for the Second Circuit reversed the district court, prompting the federal government to petition for certiorari on behalf of the FBI agents. The Supreme Court unanimously affirmed the decision of the court of appeals, concluding in an opinion authored by Justice Thomas that the plain text of RFRA and the historical availability of damages demonstrated that Congress intended damages to be an available remedy for violations of the statute perpetrated by government officials. Tanzin, the Supreme Court opened the courthouse doors a little wider for people incarcerated in federal prisons who are seeking redress for violations of their religious rights. People incarcerated in federal custody find little redress for the violations of their constitutional and statutory rights because of the decades-long retraction of the Bivens remedy, the restrictions on all suits brought by incarcerated people under the Prison Litigation Reform Act (PLRA), and the unique ability of the Federal Bureau of Prisons (BOP) to “manipulate litigation in order to avoid judicial decisions on the merits of any constitutional claim.” the religion context, this unavailability of redress is particularly nefarious because of the interwoven way in which religion both has helped shape the American punishment system and is lauded as an important component of efforts at rehabilitation. American colonial society was deeply religious, and the criminal laws that grew out of that society reflected its religiosity. Moreover, the American punishment system focused not just on punishing rulebreakers but also teaching them a “lesson,” and the nation's first prisons embodied that focus. the purpose of imprisonment in America may have morphed over the centuries, religion still plays an important role in life behind the walls. Nearly every prison in the country employs at least one person whose primary duty is to coordinate religious programs and services for incarcerated people, and research shows that religion provides hope, a sense of self-worth, better behavioral outcomes, and increased ability to adjust to prison life for people behind bars. Data consistently shows that people in prison belong to a diverse group of religions. Yet, religion's entanglement with American punishment and prisons has focused predominantly on Christian doctrine and values. Consequently, incarcerated people of non-Christian religious faiths “have faced multiple hurdles in obtaining basic accommodations for their devotional practices, holidays, burial practices, and religious diet requirements.” Therefore, Tanzin's recognition of a damages remedy for federal officials' violations of religious rights provides an important avenue of redress for incarcerated people of minority religious backgrounds.

That avenue of redress may ultimately be foreclosed, however, if the doctrine of qualified immunity is allowed to shield prison officials from liability under RFRA. The question of whether qualified immunity is an available defense under the statute remains unanswered after Tanzin. Unfortunately, in Tanzin itself, the parties had conceded that qualified immunity would be a defense available on remand. The Tanzin Court noted the parties' agreement on the issue but did not otherwise comment on whether the federal-official-defendants could invoke qualified immunity as a defense from suit. Since Tanzin, civil rights advocates and incarcerated plaintiffs in several cases have (thus far unsuccessfully) argued that the reasoning in Tanzin should preclude qualified immunity as an available defense to damages claims brought under RFRA, and several courts postTanzin have either declined to decide the question sua sponte or ignored the issue while either granting or denying qualified immunity. While courts are seemingly willing to allow the defense in RFRA actions, doing so ignores important aspects of the Tanzin Court's analysis, the broader criticisms levied against qualified immunity in recent years (including by members of the Supreme Court), and the practical unworkability of the doctrine when applied to a statute that has a proscribed affirmative defense and focuses its inquiry on individualized belief systems. Article makes three primary contributions. First, it explains the importance of RFRA and its attendant free exercise protections to the more than 150,000 people confined by the federal government in the nation's prisons. Second, it demonstrates that allowing the defense of qualified immunity to defeat RFRA claims for damages is incongruent with the statute's text, history, and purpose. Third, it analyzes how applying the defense of qualified immunity to RFRA claims is unworkable given the realities of the doctrine governing claims brought under the statute. Overall, the Article joins the chorus of commentators urging the judiciary to reconsider the knee-jerk application of qualified immunity to claims seeking to vindicate important constitutional and statutory rights. Article proceeds in three parts. Part I traces the history of free exercise protections in American prisons. Part I examines both the doctrinal developments that prompted Congress to pass RFRA and the legislative statements made about the importance of protecting incarcerated persons' religious rights; it also explains the legal doctrine that has developed from judicial interpretation of the statute over the last thirty years. Part II turns to the doctrine of qualified immunity. It discusses the history of qualified immunity, the policy rationales proffered in support of the defense, the criticisms levied against it, and the dubious ways in which the judiciary has silently extended the defense from its constitutional origins to nonconstitutional claims. Finally, Part III uses the lessons learned from the prior two parts to demonstrate why qualified immunity should not be an available defense to claims brought against federal prison officials under RFRA. In short, Part III asserts that the Supreme Court's textual analysis in Tanzin, Congress's inclusion of an explicit affirmative defense in the RFRA statute, the burden-shifting framework created by the inclusion of that affirmative defense, and RFRA's history and purpose combine to demonstrate that a qualified immunity defense is incompatible with RFRA claims for damages against federal prison officials.

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“To deny the opportunity to affirm membership in a spiritual community ... may extinguish an [incarcerated person's] last source of hope for dignity and redemption.” --O'Lone v. Estate of Shabazz (Brennan, J., dissenting), 1987 Rights clashes between religious exercise and other fundamental rights are hot topics in modern constitutional law, and there have been concerted efforts to re-examine the reach of RFRA in recent years. But there remains an important class of people protected by RFRA: people incarcerated in federal prisons. The operations of prisons in the United States have been inexorably linked to religious beliefs since the first penitentiaries opened during the country's infancy. From that time, religion has served both as a tool of rehabilitation and a mechanism for expanding the rights afforded to people inside prison walls. Despite this, the Supreme Court was “stingy in extending rights” to incarcerated people until Congress passed RFRA and its sister statute, RLUIPA. its latest decision in Tanzin, the Supreme Court recognized RFRA provided people incarcerated in federal prisons a heretofore unavailable remedy: damages for the violation of their religious rights by prison officials. Access to that remedy will be significantly curtailed if those prison officials are able to assert the defense of qualified immunity. But the qualified immunity defense is incompatible with RFRA's doctrine and purpose. Criticisms of the qualified immunity doctrine have been levied for decades, and calls to abolish or substantially rework the doctrine have grown with increasing ferocity since the 2020 murder of George Floyd. Declining to extend qualified immunity to claims brought under RFRA will protect an important class of people, serve RFRA's purpose, and begin to correct the harms qualified immunity has wrought on individuals stripped of redress for violations of their constitutional rights and on a society struggling to atone for a lack of law enforcement accountability.

Nicole B. Godfrey, Associate Clinical Professor of Law, Michigan State University College of Law.