Erie v. Hunter

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

STORM ERIE CIVIL ACTION

VERSUS

NANCY HUNTER NO. 21-00267-BAJ-RLB

RULING AND ORDER

“Congress shall make no law respecting an establishment of religion[.]” U.S.

Const. amend. I. Jurists still debate the outer limits of the Establishment Clause’s

reach, but its core guarantee is settled: “government may not ‘make a religious

observance compulsory.’” Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2429

(2022) (quoting Zorach v. Clauson, 343 U.S. 306, 314 (1952)).

In this case, the evidence shows that Defendant Nancy Hunter—a psychiatric

aide at the Eastern Louisiana Mental Health System (ELMHS) in Jackson,

Louisiana—compelled Plaintiff Storm Erie—a civil detainee confined at ELMHS—to

attend a Christian worship service over his express objection and under threat of

force. Now the Court must decide if this evidence withstands Ms. Hunter’s qualified

immunity defense at summary judgment. It does, for reasons set forth below.

I. BACKGROUND

A. Summary Judgment Evidence

By Local Rule, the following facts are drawn from Ms. Hunter’s Statement Of

Uncontested Material Facts (Doc. 20-1), Mr. Erie’s responsive Statement of Material

Facts (Doc. 21-1), and the record evidence submitted in support of these documents.

ELMHS is Louisiana’s only state-run forensic psychiatric hospital, serving all

64 Louisiana parishes. ELMHS’s Secure Forensic Facility (SFF) in Jackson treats

“residents” that are detained under civil commitment orders for mental illness or

addictive disorders, including residents that have been determined to be incompetent

to stand trial for criminal offenses, found not guilty of criminal offenses by reason of

insanity, and transferred from state prisons. La. R.S. § 28:25.1.

Ms. Hunter, now retired, was a 30-year employee of ELMHS. (Doc. 21-1 at

7:10-9:9, hereinafter “Hunter Depo.”). For the 15 years prior to her retirement, Ms.

Hunter worked as a psychiatric aide in the SFF. (Id.). Ms. Hunter is Methodist, and

attends church “[e]very first and third Sunday.” (Id. at 10:7-11:13). In her own words,

she “put[s] everything in the Lord's hands because the Lord said he looks high and

low 24/7.” (Id. at 35:24-25).

Mr. Erie is a civil detainee assigned to the SFF. For 17 years, Mr. Erie has

identified as “an ephemeral existentialist.” (Doc. 20-3 at 7:22-8:9, hereinafter “Erie

Depo.”). He believes in God, but does not associate with organized religion. (Id.)

To promote safety and security at the SFF, ELMHS requires that residents be

supervised at all times, pursuant to a maximum 15:1 resident to staff ratio. (Doc. 20-

1 at ¶¶ 3-4). There are no exceptions to these rules. Still, however, these rules may

not be applied in a way that burdens residents’ freedom of conscience. To the point,

ELMHS policy also provides that SFF residents maintain the “[r]ight to refuse to

attend religious services,” that residents should “never [be] force[d]” to attend

religious services, and that if a resident exercises his right to refuse attendance at a

religious service, “ever[y] effort should be made to assist the [residents] who do want

to attend and leave the [residents] on the unit who do not want to attend.” (Doc. 21-3

at 2, 12; see Doc. 20-4 at 17:10-19:16, hereinafter “Bertucci Depo.”; see also Doc. 20-6

at 9:9-22, hereinafter “Boatner Depo.”).

On January 9, 2021, Ms. Hunter and her supervisor, non-party Nurse Tonya

Boatner, were the only ELMHS staff members assigned to supervise 26 residents in

the SFF. (Doc. 20-1 at ¶¶ 5-6). Just before 10:00 a.m., Ms. Hunter made rounds,

knocking on each residents’ bedroom door and announcing “it’s church time.” (Hunter

Depo. at 7:9-18, 14:17-15:9). Twenty-five SFF residents responded promptly, leaving

their bedrooms and assembling without protest in the recreation hall for a Christian

worship service. (Id. at 15:10-16:14, 17:8-18:11; see also Erie Depo. at 17:20-25).

When Ms. Hunter reached Mr. Erie’s door, however, Mr. Erie objected, saying

“I ain't going to church.” (Hunter Depo. at 15:2-3, 17:9). Ms. Hunter knew of Mr. Erie’s

“right to refuse.” (Id. at 23:12-13, 41:25-41:11). She also understood that Mr. Erie’s

right of refusal could be accommodated by notifying Nurse Boatner of Mr. Erie’s

objection, so that a staff member—Ms. Hunter, Nurse Boatner, or a security guard—

could be assigned to sit outside Mr. Erie’s door during the service, allowing Mr. Erie

to remain in his bedroom. (Id. at 37:20-38:16). According to Nurse Boatner, however,

Ms. Hunter “didn't even come to me regarding that statement from Mr. Erie.”

(Boatner Depo. at 14:3-8).1 Instead, by Mr. Erie’s account, Ms. Hunter “replied that I

1 On this point, Nurse Boatner’s testimony and Ms. Hunter’s testimony are directly at odds.

As indicated above, Nurse Boatner claims that Ms. Hunter never informed her of Mr. Erie’s

objection. (Boatner Depo. at 14:3-8). By contrast, Ms. Hunter states that she told Nurse

Boatner of Mr. Erie’s refusal to go to church (Hunter Depo. at 16:2-6), that Nurse Boatner

confronted Mr. Erie and convinced him to change his mind, (see id. 23:10-16, 40:3-10), and

that, in fact, Nurse Boatner ultimately led Mr. Erie from his room to the recreation hall, (id.

would have to go and if I refused to go she [Ms. Hunter] would get a guard to force

me.” (Erie Depo. at 12:11-21). According to Mr. Erie, Ms. Hunter added that “everyone

would have to go to the church service” because she was the only psychiatric aide on

the floor, and residents cannot go unsupervised. (Id. at 15:21-22, 16:5-13).

Facing a threat of physical force, and additional disciplinary action if he did

not comply, (Erie Depo. at 42:8-43:10), Mr. Erie relented, leaving his bedroom and

taking a seat in the rear of the recreation hall, as far as possible from the Reverend

leading the worship service. (id. at 22:11-14). Mr. Erie’s apprehension that he would

be punished if he disobeyed Ms. Hunter’s order was well-founded: SFF Director Gino

Bertucci later confirmed that had Mr. Erie ultimately refused Ms. Hunter’s order to

proceed to the recreation hall, it would have been a “medium” rule violation

punishable by “[l]oss of 50 percent of your [canteen] points, no canteen for one week

and start your [good behavior] level over.” (Bertucci Depo. at 45:17-46:16).

During the worship service—which consisted of prayer, hymns, and a sermon,

(Hunter Depo. at 18:2-11)—Mr. Erie was allowed to wear headphones, but could still

hear what was occurring, particularly after Ms. Hunter demanded that he lower the

volume of his music. (Erie Depo. at 19:10-20:14; Hunter Depo. at 18:14-24).

Following the service, Mr. Erie immediately reported the morning’s events to

his attorneys who, in turn, promptly informed ELMHS’s CEO, Hampton Lea,

expressing concern that “Mr. Erie’s Constitutional Rights under the First

Amendment” were violated. (Doc. 21-1). At Mr. Lea’s command, Director Bertucci

at 40:20-24). Plainly, this is a factual dispute that must be ironed out at trial.

conducted an investigation, which ultimately concluded that “there was [sic] other

options [Ms. Hunter] could have use [sic] to locate other staff to stay with the

[residents] who do not want to go to attend the religious services,” and that Ms.

Hunter’s actions violated Mr. Erie’s “[r]ight to refuse to attend religious services.”

(Doc. 21-3 at 1-2; see Bertucci Depo. at 17:10-19:8). Ms. Hunter received a written

reprimand, (Doc. 21-3 at 1, 6), and, thereafter, all SFF staff were required to sign a

memorandum expressly acknowledging residents’ “right to decline attending

religious services,” (id. at 12).

B. Procedural History

Mr. Erie initiated this action on May 10, 2021, alleging one constitutional claim

against Ms. Hunter in her individual capacity: specifically, that his forced attendance

at the January 9 worship service violated his Establishment Clause right to be free

from compulsory religious observation. (Doc. 1 at ¶¶ 40-43).

On August 3, 2021, the State moved to dismiss Mr. Erie’s claim on the basis of

qualified immunity, arguing that Mr. Erie’s constitutional rights were not clearly

established, and that faced with “two options”—either prohibiting all residents from

attending worship, or requiring all residents to attend—Ms. Hunter reasonably

“exercise[d] her discretion in deciding to choose the latter.” (Doc. 8-1 at 8). On March

23, 2022, this Court issued its Order rejecting Ms. Hunter’s qualified immunity

defense, ruling that the state of the law in January 2021 gave Ms. Hunter “fair

warning” that her alleged actions violated the Establishment Clause, and that while

Ms. Hunter’s “motive/intent may ultimately bear on the outcome of Plaintiff's

Establishment Clause claims—particularly if those motives are consistent with the

state's interest in maintaining safety of all ELMHS residents—such issues cannot be

determined from the allegations of Plaintiff's complaint and require factual

development.” Erie v. Hunter, 593 F. Supp. 3d 374, 383 (M.D. La. 2022) (Jackson, J.).

Now, the record is developed, and the State moves for summary judgment,

doubling down on its position that Ms. Hunter’s actions are shielded by qualified

immunity. Mr. Erie opposes the State’s motion. (Doc. 21).

II. ANALYSIS

A. Standard

The summary judgment standard is well-set: generally, to prevail, the moving

party must show that there is no genuine dispute as to any material fact and that it

is entitled to judgment as a matter of law. Fed. R. Civ. 56(a). Here, however, the State

invokes qualified immunity. Thus, the tables are turned, and Mr. Erie “bears the

burden to demonstrate the inapplicability of the defense.” Rogers v. Jarrett, 63 F.4th

971, 975 (5th Cir. 2023) (quotation marks omitted). To meet this burden, Mr. Erie

must “(1) raise a fact dispute on whether his constitutional rights were violated by

[Ms. Hunter’s] conduct, and (2) show those rights were clearly established at the time

of the violation.” Id. (quotation marks omitted).2 Still, when conducting the qualified

2 The qualified immunity defense is the subject of multiple well-founded critiques, including

that it tips the scales of justice too far in the State’s favor. E.g., Jamison v. McClendon, 476

F. Supp. 3d 386, 423 (S.D. Miss. 2020) (Reeves, J.) (reviewing the history and expansion of

the qualified immunity doctrine, and calling for its elimination). Still, it remains “the law of

the land.” Id. at 409. But for how long? Recent groundbreaking scholarship from Professor

Alexander A. Reinert of the Benjamin N. Cardozo School of Law shakes the very foundation

of the qualified immunity doctrine. See Alexander A. Reinert, Qualified Immunity's Flawed

Foundation, 111 CAL. L. REV. 201 (2023). In his article, Professor Reinert shows that qualified

immunity’s doctrinal underpinning—that “no evidence” suggests that the Reconstruction

Congress meant to abrogate common law immunities when it fashioned 42 U.S.C. § 1983—is

a fiction, based entirely on a scrivener’s error that conveniently removed a 16-word clause

immunity analysis, the Court views all evidence and makes all reasonable inferences

in the light most favorable to Mr. Erie. Tolan v. Cotton, 572 U.S. 650, 657 (2014).

B. Discussion

1. Mr. Erie has raised a fact dispute on whether his

constitutional rights were violated

The State haphazardly challenges the merits of Mr. Erie’s constitutional claim,

from the published version of § 1983, which, put back in place, inarguably eliminates all such

immunities. Id.

Judge Willett of the United States Court of Appeals for the Fifth Circuit recently

summarized Professor Reinert’s argument as follows:

[W]hat if Congress's literal language unequivocally negated the original

interpretive premise for qualified immunity? Professor Alexander Reinert

argues … that courts have been construing the wrong version of § 1983 for

virtually its entire legal life. …

As passed by the Reconstruction Congress, … § 1983 … read this way:

[A]ny person who, under color of any law, statute, ordinance,

regulation, custom, or usage of any State, shall subject, or cause to be

subjected, any person within the jurisdiction of the United States to the

deprivation of any rights, privileges, or immunities secured by the

Constitution of the United States, shall, any such law, statute,

ordinance, regulation, custom, or usage of the State to the contrary

notwithstanding, be liable to the party injured in any action at law, suit

in equity, or other proper proceeding for redress....

The italicized language … explicitly displaces common-law defenses. The

language that Congress passed makes clear that § 1983 claims are viable

notwithstanding “any such law, statute, ordinance, regulation, custom, or

usage of the State to contrary.” The language is unsubtle and categorical,

seemingly erasing any need for unwritten, gap-filling implications,

importations, or incorporations. Rights-violating state actors are liable—

period—notwithstanding any state law to the contrary.

Rogers, 63 F.4th at 979–80 (Willett, J., concurring).

It is far above this Court’s pay grade to cast aside the qualified immunity doctrine

here, particularly absent any argument from the parties. Indeed, at this point, only the

Supreme Court can definitively “overrule” the defense. Id. at 981. For now, the undersigned

commends Professor Reinert’s scholarship, and joins Judge Willett’s call for the Supreme

Court to “definitively grapple with § 1983’s enacted text and decide whether it means what

it says—and what, if anything, that means for § 1983 immunity jurisprudence.” Id.

arguing that the evidence cannot sustain an Establishment Clause violation because

it is “undisputed that the purpose of keeping Plaintiff with the other residents in SFF

Unit 1 under the circumstances that presented themselves was purely for the safety

of Plaintiff and others.” (Doc. 20-2 at 7).

Frustratingly, the State’s argument fails to identify or apply any discernible

constitutional standard by which to measure Mr. Erie’s Establishment Clause claim,

despite the availability of multiple options. See, e.g., Croft v. Perry, 624 F.3d 157, 165-

70 (5th Cir. 2010) (discussing various tests for measuring alleged Establishment

Clause violations). It goes without saying that constitutional claims, like all claims,

are defined by standards comprised of discrete elements. See id. Thus, the Court must

decide in the first instance which of the various Establishment Clause “tests” govern

the facts at issue.

The choice is obvious. As explained in this Court’s Order rejecting Ms. Hunter’s

qualified immunity defense at the pleading stage, for three-quarters of a century the

Supreme Court has held that the State cannot “force … a person to go to … church

against his will,” nor punish a person for “non-attendance.” Everson v. Bd. of Ed. of

Ewing Tw, 330 U.S. 1, 15–16 (1947). Consistent with these rules, the Supreme Court’s

Lee v. Weisman decision—now thirty years old—distilled the Establishment Clause’s

irreducible “minimum” to this: “It is beyond dispute that … the Constitution

guarantees that government may not coerce anyone to support or participate in

religion or its exercise[.]” 505 U.S. 577, 587 (1992). Just last year, the Supreme Court

affirmed that this core guarantee remains firmly intact:

[G]overnment may not, consistent with a historically sensitive

understanding of the Establishment Clause, make a religious

observance compulsory. Government may not coerce anyone to attend

church, nor may it force citizens to engage in a formal religious exercise.

No doubt, too, coercion along these lines was among the foremost

hallmarks of religious establishments the framers sought to prohibit

when they adopted the First Amendment.

Kennedy, 142 S. Ct. at 2429 (quotation marks, citations, and footnote omitted).

Taking its cue from the Lee decision, the Fifth Circuit has adopted the

“Coercion Test” for determining whether state action coerces religious participation

in violation of the Establishment Clause. See Croft v. Perry, 624 F.3d 157, 169-70 (5th

Cir. 2010). In the custodial setting, this test assesses three factors: “first, has the

state acted; second, does the action amount to coercion; and third, is the object of the

coercion religious or secular?”3 Brown v. Collier, 929 F.3d 218, 244 n.177 (5th Cir.

3 The Fifth Circuit recently cited this version of the Coercion Test approvingly, but has not

yet had occasion to apply it in the custodial setting. See Brown, 929 F.3d at 244 & n.177. By

contrast, the Seventh, Eighth, Ninth, and Tenth Circuits have expressly adopted the three-

factor Coercion Test as the appropriate constitutional yardstick for prison-based

Establishment Clause claims alleging “[coercion], under threat of meaningful penalties, to

attend religious meetings.” Kerr v. Farrey, 95 F.3d 472, 479 (7th Cir. 1996); see Jackson v.

Nixon, 747 F.3d 537, 541-542 (8th Cir. 2014); Inouye v. Kemna, 504 F.3d 705, 713 (9th Cir.

2007); Janny v. Gamez, 8 F.4th 883, 908 (10th Cir. 2021), cert. dismissed, 142 S. Ct. 878

(2022). The First, Second, Third, and Sixth Circuits have cited it with approval. See Marrero-

Mendez v. Calixto-Rodriguez, 830 F.3d 38, 47 (1st Cir. 2016);Warner v. Orange Cnty. Dep't of

Prob., 115 F.3d 1068, 1075 (2d Cir. 1996); Nelson v. Horn, 138 F. App'x 411, 414 (3d Cir.

2005); United States v. Logins, 503 F. App'x 345, 353 n.4 (6th Cir. 2012). Based on the weight

of these persuasive Circuit authorities, and the actual facts presented here, the Court finds

that the Coercion Test is the appropriate measure of whether Mr. Erie has raised a fact

dispute establishing a viable Establishment Clause claim.

To clear any confusion, the Court expressly acknowledges that it is applying a version

of the Coercion Test developed for the prison setting, without modification, despite the fact

that Mr. Erie is a civil detainee who may be entitled “to more considerate treatment” than a

convicted prisoner. Youngberg v. Romeo, 457 U.S. 307, 321–22 (1982), but see Hare v. City of

Corinth, Miss., 74 F.3d 633, 647 (5th Cir. 1996) (observing that the Supreme Court “has cast

doubt on the vitality of” the distinction between criminals and civil detainees). To the extent

either side benefits from the Court’s selection of the prison-based Coercion Test, it is

obviously the State, because (again) Mr. Erie’s claims may yet deserve more deferential

2019) (quoting Jackson v. Nixon, 747 F.3d 537, 541-542 (8th Cir. 2014)); e.g., Janny

v. Gamez, 8 F.4th 883, 905-911 (10th Cir. 2021), cert. dismissed, 142 S. Ct. 878 (2022)

(applying Coercion Test to parolee’s claim that he was coerced to attend Alcoholics

Anonymous/Narcotics Anonymous (AA/NA), a faith-based substance abuse program,

in violation of the Establishment Clause (discussing authorities)).

Running the summary judgment evidence here through the Coercion Test is a

straightforward endeavor that yields an obvious result.4 First, it is undisputed that

Ms. Hunter acted for the State when she ordered Mr. Erie to attend the worship

service. E.g., Kerr, 95 F.3d at 479 (prison officials act for the State when they order

detainees to attend religious programs, even programs delivered by private parties).

Second, Ms. Hunter’s order obviously amounts to coercion, a point the State all

but concedes. (Doc. 20-2 at 7 (“[I]t is unfortunate that Mr. Erie attended a religious

service he did not wish to attend.”)). Indeed, Ms. Hunter’s express threat of force and

implicit threat of disciplinary action—lost canteen privileges and demoted rank on

ELMHS’s disciplinary rubric—is precisely the kind of “coercion” that the

Establishment Clause was intended to protect against, under even the most skeptical

view. See Lee, 505 U.S. at 640 (Scalia, J., dissenting) (“The coercion that was a

hallmark of historical establishments of religion was coercion of religious orthodoxy

… by force of law and threat of penalty.” (emphasis in original)); accord Town of

treatment than those of a convicted prisoner. Youngberg, 457 U.S. at 321–22.

4 Having failed to identify any alternative standard, the State waives any objection to

application of the Coercion Test here. See Doe v. Bd. of Supervisors of Univ. of Louisiana Sys.,

--- F.Su3d ----, 2023 WL 143171, at *17 n.13 (M.D. La. Jan. 10, 2023) (Jackson, J.).

Greece, N.Y. v. Galloway, 572 U.S. 565, 608 (2014) (Thomas, J., concurring in the

judgment); Shurtleff v. City of Bos., Massachusetts, 142 S. Ct. 1583, 1609 (2022)

(Gorsuch, J., concurring in the judgment); e.g., Kerr, 95 F.3d at 479 (“meaningful

penalties” sufficient to satisfy the coercion element include re-classification to a

“higher security risk category” and “adverse notations” in a detainee’s record).

Third, the “object” of Ms. Hunter’s coercion was obviously religious, because

whatever the denomination, a Christian worship service is “substantially based in

religion, premised as it is on belief in a higher power.” E.g., Janny, 8 F.4th at 907

(programming founded in monotheistic beliefs has a religious “object”). Having

carried his burden to create a fact dispute as to each element of his Establishment

Clause claim, Mr. Erie easily overcomes the first prong of Ms. Hunter’s qualified

immunity defense. See Rogers, 63 F.4th at 975; e.g., Janny, 8 F.4th at 905-911 (fact

disputes defeated parole officer’s qualified immunity defense to parolee’s claim that

he was unlawfully forced to participate in NA/AA meetings (discussing authorities)).

The State does not address any of the Coercion Test factors, arguing instead

that Mr. Erie’s Establishment Clause claim fails because Ms. Hunter’s “purpose …

was purely for the safety of Plaintiff and others.” (Doc. 20-2 a 7). Without expressly

saying so, the State’s position appears to be that Mr. Erie’s right to be free of

compulsory religious observance must necessarily yield to content-neutral “practices

… needed to preserve internal order and discipline and to maintain institutional

security” at ELMHS. See Bell v. Wolfish, 441 U.S. 520, 547 (1979); accord Turner v.

Safley, 482 U.S. 78, 89-91 (1987).

Not so fast. First, Ms. Hunter’s “purpose”—or subjective intent for ordering Mr.

Erie’s attendance at the worship service—is not a discrete element of an actionable

Establishment Clause claim under the Coercion Test, which, again, asks only

whether (1) the state acted, (2) the action amounts to coercion, and (3) the object of

the coercion was religious or secular. Brown, 929 F.3d at 244 n.177.

Second, even assuming that Ms. Hunter’s motivation is relevant to the merits

of Mr. Erie’s Establishment Clause claim, whether Ms. Hunter acted “purely” in

pursuit of institutional safety is plainly a contested issue, thus precluding summary

dismissal. Why? Because Mr. Erie has developed substantial evidence creating a

genuine fact dispute regarding whether Ms. Hunter’s actual “purpose” was religious

or secular when she ordered him to go to church.

Ms. Hunter’s order to attend the worship service was not in response to any

imminent safety or security concern. To the contrary, it came in the absence of any

disturbance on the floor, when the SFF’s 26 residents were in their bedrooms. Even

after Ms. Hunter issued her command, the residents responded in an orderly fashion:

25 promptly left their rooms and assembled in the recreation hall without incident;

Mr. Erie peaceably voiced his objection, as was his right under ELMHS policy. At the

time Mr. Erie objected to attending church, Ms. Hunter admittedly knew of Mr. Erie’s

right to abstain, and also knew that to accommodate Mr. Erie’s objection, ELMHS

policy required her to seek assistance from Nurse Boatner so that alternative

arrangements could be made allowing him to stay in his room. Nurse Boatner

testified, however, that Ms. Hunter never approached her regarding Mr. Erie’s

objection, and Mr. Erie testified that, instead, Ms. Hunter immediately threatened to

get a security guard to force him to church. These events are corroborated by Director

Bertucci’s internal investigation report, which concluded that “there was [sic] other

options [Ms. Hunter] could have use [sic] to locate other staff to stay with the

[residents] who do not want to go to attend the religious services,” and that Ms.

Hunter’s actions violated Mr. Erie’s “[r]ight to refuse to attend religious services.”

(Doc. 21-3 at 1-2; see Bertucci Depo. at 17:10-19:8). On top of all this, Ms. Hunter is

plainly a devout person whose Christian faith cannot be cleanly separated from her

on-the-job conduct. This much is clear from her deposition, where, after being

confronted with a prior example of “unprofessional” workplace behavior, she stated

spontaneously that she “put[s] everything in the Lord's hands because the Lord said

he looks high and low 24/7.” (Hunter Depo. at 35:24-25).

In sum, Mr. Erie’s evidence shows that Ms. Hunter knowingly and

intentionally ordered him to attend a Christian worship service despite ELMHS’s

policy expressly allowing residents to opt-out, under circumstances establishing a

reasonable inference that she favored religion over non-religion, violating “that

central Establishment Clause value of official religious neutrality.” McCreary Cty.,

Ky. v. Am. C.L. Union of Ky., 545 U.S. 844, 860, (2005). The upshot is that Mr. Erie

has (again) shown a fact dispute on the issue of Ms. Hunter’s “purpose” for ordering

him to attend church, defeating summary judgment. See Heaney v. Roberts, 846 F.3d

795, 802 (5th Cir. 2017) (normal summary judgment rules apply to determinations of

“improper motive” under the qualified immunity analysis (citing Crawford-El v.

Britton, 523 U.S. 574, 585 (1998)); accord Heaney v. Roberts, 147 F. Supp. 3d 600, 609

n. 9 (E.D. La. 2015) (Zainey, J.) (explaining that no “special rule … protect[s] a

defendant's right to qualified immunity in cases involving improper motivation—

cases that would frequently involve a disputed issue of fact that would preclude

summary adjudication.”).

2. Mr. Erie’s constitutional rights were clearly

established at the time of the violation

“The ‘clearly established’ prong is difficult to satisfy.” Cunningham v. Castloo,

983 F.3d 185, 191 (5th Cir. 2020). Indeed, this prong “is better understood as two

separate inquiries: whether the allegedly violated constitutional rights were clearly

established at the time of the incident; and, if so, whether the conduct of the

defendant was objectively unreasonable in the light of that then clearly established

law.” Powers v. Northside Indep. Sch. Dist., 951 F.3d 298, 306 (5th Cir. 2020).

Whether a constitutional right was “clearly established” at the time of the

alleged violation is most often determined by reference only to binding Supreme

Court and Fifth Circuit authority, though sometimes a “consensus of cases of

persuasive authority” from other Circuits is “sufficient to compel the conclusion that

no reasonable officer could have believed that his or her actions were lawful.” See

McClendon v. City of Columbia, 305 F.3d 314, 329 (5th Cir. 2002) (quoting Wilson v.

Layne, 526 U.S. 603, 604 (1999)). The “salient question” is whether the state of the

law at the time of the alleged violation gave the defendant “fair warning” that her

alleged conduct was unconstitutional. Hope v. Pelzer, 536 U.S. 730, 741 (2002).

As a best practice, plaintiffs seeking to overcome the “clearly established”

prong will highlight “cases of controlling authority in their jurisdiction at the time of

the incident which clearly established the rule on which they seek to rely.”

McClendon, 305 F.3d at 329 (quoting Wilson, 526 U.S. at 617). Ideally, such cases

involve “fundamentally similar” facts. Hope, 536 U.S. at 741. But this is not the only

recipe for success. Id. Albeit rare, sometimes the constitutional violation under review

is just so obvious that any reasonable official would know that “their conduct violates

established law even in novel factual circumstances.” Id. Put differently, “a general

constitutional rule already identified in the decisional law may apply with obvious

clarity to the specific conduct in question, even though the very action in question has

not previously been held unlawful.” Id.

This is the “obvious” case. It boils down to a simple question: In January 2021,

was the caselaw clear that a state employee cannot compel a civil detainee to attend

a Christian worship service over his express objection and under threat of penalty.

The Supreme Court’s answer, which has remained the same for 75 years, is direct

and categorical: The State “may not make a religious observance compulsory.”

Zorach, 343 U.S. at 314. This first principle of First Amendment law reflects the

Founders’ understanding of what it meant to protect citizens’ freedom of conscious.

See, e.g., Lee, 505 U.S. at 640–642 (Scalia, J. dissenting); (“The coercion that was a

hallmark of historical establishments of religion was coercion of religious orthodoxy

… by force of law and threat of penalty.”); Town of Greece, 572 U.S. at 608-610

(Thomas, J., concurring in the judgment) (discussing coercion and historical

hallmarks of an established religion); Shurtleff, 142 S. Ct. at 1608-1610 (Gorsuch, J.,

concurring in the judgment) (same); 1 Annals of Cong. 730–731 (1789) (Madison

explaining that the First Amendment aimed to prevent one or multiple sects from

“establish[ing] a religion to which they would compel others to conform”); M.

McConnell, Establishment and Disestablishment at the Founding, Part I:

Establishment of Religion, 44 WM. & MARY L. REV. 2105, 2144–2146 (2003).

And, again, this principle has been stated so many times and in so many

contexts that thirty years ago it was already “beyond dispute that … the Constitution

guarantees that government may not coerce anyone to support or participate in

religion or its exercise[.]” Lee, 505 U.S. at 587 (quotation marks omitted). As recently

as June 2022, the Supreme Court paused to emphasize this constitutional rule once

more, in equally categorical terms:

[G]overnment may not, consistent with a historically sensitive

understanding of the Establishment Clause, make a religious

observance compulsory. Government may not coerce anyone to attend

church, nor may it force citizens to engage in a formal religious exercise.

No doubt, too, coercion along these lines was among the foremost

hallmarks of religious establishments the framers sought to prohibit

when they adopted the First Amendment.

Kennedy, 142 S. Ct. at 2429 (quotation marks and citations omitted).

True, this constitutional rule has not been previously applied to

“fundamentally similar” facts as those at issue here, possibly because such obvious

Establishment Clause violations are (thankfully) rare, and, when they occur, are not

litigated to this end. But this does not make Ms. Hunter’s unconstitutional conduct

any less clear, for at least two reasons. First, as set forth, a robust body of persuasive

authority from other Circuits establishes that even compelled participation in

nonsecular 12-step substance abuse programs runs afoul of the Establishment

Clause. Kerr, 95 F.3d at 480; see supra n.7. If detainees cannot be forced to participate

in NA and AA because these programs are founded in the “monotheistic idea of a

single God,” id., plainly detainees cannot be ordered to attend an actual Christian

worship service.

Second, this constitutional rule is so ingrained in the fabric of daily American

life that it is expressly written into ELMHS’s policies. (Doc. 21-3 at 1-2; see Bertucci

Depo. at 17:10-19:8). Moreover, at the time Ms. Hunter ordered Mr. Erie to attend

church, she knew she was violating Mr. Hunter’s “right to refuse to attend religious

services,” notwithstanding the SFF’s general policy of maintaining a 15:1 patient to

staff ratio. (Hunter Depo. at 23:12-13, 37:20-38:16, 41:25-41:11).

The sum of the summary judgment evidence here is that Ms. Hunter knew of

Mr. Erie’s “right to refuse” when she ordered him to attend church. (Id. at 23:12-13,

41:25-41:11). She also knew that ELMHS policy required her to accommodate Mr.

Erie’s right of refusal. (Id. at 37:20-38:16). Instead, by Mr. Erie’s account, Ms. Hunter

told him “if I refused to go she would get a guard to force me.” (Erie Depo. at 12:11-

21). Under the same circumstances, any reasonable state employee would know—

and, in fact, Ms. Hunter did know—that she could not force Mr. Erie to attend the

worship service against his will. Lee, 505 U.S. at 587; Zorach, 343 U.S. at 314;

Everson, 330 U.S. at 15–16. Mr. Erie has carried his burden to show that the law was

clearly established at the time he was forced to attend the January 2021 worship

service over his express objection, and that Ms. Hunter’s actions were “objectively

unreasonable in the light of that then clearly established law.” Powers, 951 F.3d at

306. Ms. Hunter’s qualified immunity defense fails.

The State makes no attempt to engage with Lee’s prohibition against compelled

participation in religious exercise. Instead, the State reverts to its position that, on

January 9, 2021, Ms. Hunter faced a binary choice: either compel Mr. Erie’s

attendance at the worship service, or “refuse[] to allow the 25 other patients in SFF

unit 1” to attend the service, thereby violating “their own free exercise rights.” (Doc.

20-2 at 8). And because the Supreme Court has rejected “a ‘heckler’s veto’ which

would allow religious activity to be proscribed based upon [Mr. Erie’s] perception or

discomfort,” it was reasonable for Ms. Hunter to choose an “incidental infringement”

on Mr. Erie’s rights in favor of “maintain[ing] the 15-to-1 ratio” and allowing “two

dozen of his fellow patients [to exercise] their own religious rights.” (Id.).

This argument fails on multiple fronts. First, no reasonable official would

confuse this case with a “heckler’s veto” case.5 Mr. Erie is not challenging ELMHS’s

5 When the Supreme Court coined the term “heckler's veto,” it was faced with a wholly

different Establishment Clause claim: specifically, whether a school district could lawfully

prevent a private Christian club from using school facilities after hours, based, in part, on

the district’s concerns that non-Christian schoolchildren would believe that the district

endorsed the club and feel pressure to join. See Good News Club v. Milford Cent. Sch., 533

U.S. 98, 119 (2001). In this scenario, the Supreme Court rejected the school district’s

invitation to “assum[e] that any risk that small children would perceive endorsement should

counsel in favor of excluding the Club's religious activity,” and “decline[d] to employ … a

modified heckler's veto, in which a group's religious activity can be proscribed on the basis of

what the youngest members of the audience might misperceive.” (Id.). There is simply no

comparison between the potential for peer pressure at issue in Good News Club, and the

actual threat of physical force at issue here. Put differently, even the most ardent skeptic of

the Establishment Clause’s reach would concede that compelled attendance at a Christian

worship service under threat of physical force is an entirely different category of

constitutional concern than abstracted psychological pressures to attend after-school

Christian programming. See id. at 221 (Scalia, J., concurring) (“As to coercive pressure:

Physical coercion is not at issue here; and so-called ‘peer pressure,’ if it can even be considered

coercion, is, when it arises from private activities, one of the attendant consequences of a

freedom of association that is constitutionally protected.” (citations omitted)); accord Lee, 505

practice of allowing weekly worship services in the SFF recreation hall, and there is

no evidence whatsoever that Mr. Erie attempted to disrupt the January 9 worship

service. To the contrary, he sat quietly during the entirety of the service, even turning

down his headphones at Ms. Hunter’s demand. Rather, this is a coercion case, plain

as day, asking simply whether the State unlawfully compelled Mr. Erie to attend a

worship service against his will.

Second, and in any event, Mr. Erie has raised a fact dispute even regarding

Ms. Hunter’s claim that her choices were limited to forcing Mr. Erie to attend church

or prohibiting the remaining SFF residents from attending church. Again, ELMHS’s

own investigation concluded that “there was [sic] other options [Ms. Hunter] could

have use [sic] to locate other staff to stay with the [residents] who do not want to go

to attend the religious services,” and that Ms. Hunter’s actions violated Mr. Erie’s

“[r]ight to refuse to attend religious services.” (Doc. 21-3 at 1-2; see Bertucci Depo. at

17:10-19:8).

The State’s attempt to show that Ms. Hunter acted reasonably relies on the

wrong law and ignores the operative facts. This case is going to trial.

3. There is no de minimis exception to the

Establishment Clause

Finally, the State insists that even if “Ms. Hunter is not entitled to summary

judgment on the basis of qualified immunity, Plaintiff’s claims should still be

U.S. at 640 (Scalia, J., dissenting); Town of Greece, N.Y., 572 U.S. at 608 (Thomas, J.,

concurring in part and concurring in the judgment); Shurtleff v. City of Bos., Massachusetts,

142 S. Ct. at 1609 (Gorsuch, J., concurring in the judgment).

dismissed as the allegations and evidence show that he has, at most, a de minimis

impact to his free exercise rights.” (Doc. 20-2 at 9). This argument was best left on

the cutting-room floor.

First, Mr. Erie is pursuing an Establishment Clause claim, not a Free Exercise

Clause claim. (Doc. 1 at ¶ 40).

Second, and in any event, the Fifth Circuit has expressly declined to carve out

a de minimis exception to the Free Exercise Clause—even in the custodial setting—

and has provided no indication whatsoever that such an exception applies to the

Establishment Clause. See Butts v. Martin, 877 F.3d 571, 586 (5th Cir. 2017)

(“Generally, this Court has not required a preliminary showing that a regulation

substantially interferes with an inmate's religious rights before assessing whether

the regulation is reasonably related to a penological interest.”); see also Newman v.

Officer Marfo, No. 19-cv-352, 2021 WL 3860741, at *5 (S.D. Tex. Aug. 27, 2021)

(denying summary judgment on the basis that any injury resulting from alleged Free

Exercise Clause violation was de minimis: “A de minimis analysis may be proper in

the context of a claim under the Religious Freedom Restoration Act or the Religious

Land Use and Institutionalized Persons Act, but not in a First Amendment free-

exercise claim.” (citations omitted)).

Third, based on “a historically sensitive understanding of the Establishment

Clause,” which (again) holds that the State may not (1) “make a religious observance

compulsory,” (2) “coerce anyone to attend church,” or (3) “force citizens to engage in a

formal religious exercise,” Mr. Erie’s coerced attendance at a Christian worship

service plainly is not a de minimis infringement of his constitutional rights, at least

for liability purposes.® See Kennedy, 142 S. Ct. at 2429 (quotation marks omitted). To

the contrary, as explained herein, and in this Court’s prior Order denying Ms.

Hunter’s motion to dismiss, the events in dispute would appear to “fly straight into

the teeth of the Establishment Clause's prohibition against state action coercing a

person to participate in religion.” Erie, 593 F. Supp. 3d at 380 (citing Lee, 505 U.S. at

587; Everson, 330 U.S. at 15-16).

II. CONCLUSION

Accordingly,

IT IS ORDERED that Ms. Hunter’s Motion For Summary Judgment

(Doc. 20) be and is hereby DENIED.

st

Baton Rouge, Louisiana, thisOl > “day of May, 2023

JUDGE BRIAN 1

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

6 Of course, the extent of Mr. Erie’s injuries resulting from being forced to attend a one-hour

worship service will ultimately inform what damages he may recover. See, e.g., Warner, 115

F.3d at 1077 (affirming award of nominal damages for Establishment Clause claim based on

probationer’s coerced attendance at multiple AA meetings over a period of two years). But

quantum of damages is a separate inquiry from a determination of Ms. Hunteyr’s liability, and

certainly not a basis for dismissing Mr. Erie’s claim at summary judgment. Cf. Uzuegbunam

v. Preczewski, 141 S. Ct. 792, 802 (2021) (“Because every violation of a right imports damage,

nominal damages can redress [a plaintiffs] injury even if he cannot or chooses not to quantify

that harm in economic terms.” (quotation marks, alterations, and citations omitted)).

21