Jailers Face Liability for Removing Muslim’s Scarf

     (CN) – A Muslim woman can sue Orange County for violating a federal law in forcing her to remove a headscarf during pretrial detention, the full 11-judge panel of the 9th Circuit ruled Tuesday.
     The Pasadena-based court found that a federal judge improperly dismissed Souhair Khatib’s lawsuit, which alleged violations of a federal law designed to protect prisoners’ religious freedom, the Religious Land Use and Institutionalized Persons Act.
     While Khatib was in pretrial detention awaiting a parole-violation hearing at the Orange County Santa Ana Courthouse, jail employees insisted that Khatib remove her hijab – a traditional Muslim headscarf worn by female adherents in public.
     Khatib wept and pleaded with the male employees to allow her to wear the headscarf. She explained that her religion required her to keep her head covered, especially in the presence of men outside of her family. Unmoved, the jail employees made her to remove the scarf, and Khatib spent several hours in detention attempting to “cover herself by pulling her knees into her chest and covering her head with a vest she was wearing,” the ruling states.
     When Khatib eventually appeared before the court, a parole judge granted her request for more time to complete mandatory community service on a misdemeanor violation of California’s welfare law, reinstated her probation and released her.
     Khatib then filed a complaint against Orange County, its sheriff and courthouse officers for violations of the Religious Land Use Act. U.S.
     U.S. District Judge David Carter dismissed the case, finding that the pretrial detention facility at the Santa Ana Courthouse was not covered under the act because inmates generally spent just a short time there. Carter noted that the holding center’s transitory nature “makes unlimited exercise of religious and expressive freedoms impractical.”
     A split 9th Circuit panel upheld that decision in May 2010, but it voted to rehear the case en banc four months later.
     The full court was unanimous in reversing the finding on Tuesday. The court’s lead opinion, authored by Judge M. Margaret McKeown, states that the Santa Ana Courthouse is an “institution” and a “jail” as defined in the act, and therefore Khatib’s request for religious accommodation should have been honored.
     “The county argues that RLUIPA only affords protection to inmates at long-term facilities with residential capabilities,” McKeown wrote. “This interpretation reads into the statute an additional qualification where none exists. The act does not include any temporal restriction on the term ‘institution.’ Nor should we import such a requirement, especially in light of the generous interpretative rule set forth by Congress.”
     In a concurring opinion, Judge Ronald Gould wrote that Congress had designed the act, known as RLUIPA, to prevent experiences like Khatib’s.
     “A Muslim woman who must appear before strange men she doesn’t know, with her hair and neck uncovered in a violation of her religious beliefs, may feel shame and distress,” he wrote. “This is precisely the kind of ‘mischief’ RLUIPA was intended to remedy. A recognition of this very real harm helps inform our judgment on the scope of covered institutions. Under long-observed canons of statutory construction, and under the terms of RLUIPA itself, it is proper to construe the statute broadly to give effect to the religious protection intended by Congress.”
     The panel warned against reading its decision expansively, however, saying that “other courthouse or detention facilities have unique characteristics that warrant individualized review.”