Charles Mack v. John Yost

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 21-2472

_____________

CHARLES MACK,

Appellant

v.

JOHN YOST, Warden; TIM KUHN, Associate Warden;

JEFFREY STEPHENS, Trust Fund Officer;

SAMUEL VENSLOSKY, Correctional officer, sued in their

individual capacities; DOUG ROBERTS, Correctional

Officer, sued in their individual capacities

_______________

On Appeal from the United States District Court

For the Western District of Pennsylvania

(D.C. No. 3-10-cv-00264)

District Judge: Honorable Kim R. Gibson

_______________

Argued on

September 7, 2022

Before: JORDAN, HARDIMAN, and SMITH, Circuit

Judges

(Filed: March 21, 2023)

_______________

Sarah M. Czypinski

John M. Hagan

Jessica Moran [ARGUED]

K&L Gates

210 Sixth Avenue

Pittsburgh, PA 15222

Counsel for Appellant

Christopher E. Kemmitt

Michael Skocpol [ARGUED]

NAACP Legal Defense & Educational Fund

700 14th Street, NW – Ste. 600

Washington, DC 20005

Adam Murphy

Samuel Spital

NAACP Legal Defense & Educational Fund

40 Rector Street – 5th FL.

New York, NY 10006

Samuel Weiss

Rights Behind Bars

416 Florida Avenue, NW - #26152

Washington, DC 20001

Counsel for Amicus Rights Behind Bars and

NAACP Legal Defense & Education Fun

2

Laura S. Irwin

Office of United States Attorney

700 Grant Street – Suite 4000

Pittsburgh, PA 15219

Courtney Dixon [ARGUED]

United State Department of Justice

Civil Division, Appellate Staff

950 Pennsylvania Avenue NW

Washington, DC 20530

Counsel for Appellee

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

“Among the most inestimable of our blessings,” said

Thomas Jefferson, is that “of liberty to worship our creator in

the way we think most agreeable to his will … .” 1 That

bedrock principle, enshrined in the Free Exercise Clause of the

First Amendment, has since been reinforced through federal

laws that guarantee prisoners the freedom to practice their

faiths. Charles Mack, a former federal inmate and a devout

Muslim, brought suit to vindicate that guarantee.

1

Letter from Thomas Jefferson to John Thomas (Nov.

18, 1807), https://rotunda.

upress.virginia.edu/founders/default.xqy?keys=FOEA-print-

04-01-02-6807 (cleaned up).

3

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 resulting case has been before us three times

already, and, at this point, Mack’s lone surviving claim arises

under the Religious Freedom Restoration Act of 1993

(“RFRA”), 42 U.S.C. §§ 2000bb et seq. The guards sought

summary judgment on that claim, but the District Court

initially denied the motion, holding that a jury could

reasonably find the guards had, in violation of RFRA,

substantially burdened Mack’s exercise of religion. The

guards later moved for summary judgment again, this time on

the theory that they are entitled to qualified immunity. On that

argument, the District Court sided with them. It held that

qualified immunity was warranted because 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, as a matter of law, 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

4

defense. Framed in the light most favorable to Mack, evidence

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, which are undisputed for purposes of summary

judgment, the officers are not entitled to qualified immunity.

But if different facts come out at trial, the officers may again

raise qualified immunity. Because affording the guards

qualified immunity is unwarranted at this stage, we will vacate

and remand for further proceedings.

I. BACKGROUND

A. Factual Background 2

Mack is a practicing Muslim and a former inmate at the

federal correctional institution in Loretto, Pennsylvania.

During his incarceration, he worked as a paid employee in the

prison’s commissary between May and October 2009. He

would stock the shelves and fill inmates’ orders by collecting

commissary items. Mack was supervised by two correctional

2

The following facts are based primarily on Mack’s

deposition testimony. No one has pointed to any evidence,

such as testimony, affidavits, video footage, or documents, that

would disprove Mack’s version of events. While, in the

District Court, the guards “den[ied] that the events [Mack

described in his testimony] actually occurred” (J.A. at 9) –

again, without any supporting evidence – they now appear to

concede the truthfulness of his testimony, at least for purposes

of summary judgment.

5

officers, Douglas Roberts and Samuel Venslosky, who

oversaw the commissary workers and handled sales.

Central to Mack’s observance of his Muslim faith is his

obligation to pray five times a day. Those five daily prayers,

each of which takes approximately five minutes, are supposed

to be done at prescribed times. An imam provided Mack and

other Muslim inmates with a prayer schedule tailored to their

location in western Pennsylvania so that they knew exactly

when to pray each day. Although the imam advised Mack that

it was acceptable to catch up on his prayers at the end of the

day if he was unable to pray on schedule, he was nonetheless

expected to adhere to the prescribed times whenever feasible.

On Fridays, Mack was also supposed to attend, with other

Muslim inmates, a special prayer service known as Jumu’ah.

When he prayed, Mack typically used a prayer rug. He could,

in accordance with his faith, pray from wherever he was

located in the prison, so long as he faced east when doing so. 3

Because of his religious commitments, Mack was

afforded some accommodations while working at the

commissary. He was excused from handling pork products 4

3

We understand Mack’s testimony about facing east to

be a reference to the requirement of Islam that prayers “be

offered toward the Qiblah, which is the direction to the Kabah,

the holy shrine in Mecca.” Sharp v. Johnson, 669 F.3d 144,

147 n.3 (3d Cir. 2012).

4

As noted earlier in this litigation, “practicing Muslims

do not handle pork.” Mack v. Warden Loretto FCI (Mack II),

839 F.3d 286, 291 (3d Cir. 2016); see also Williams v. Bitner,

455 F.3d 186, 194 (3d Cir. 2006) (holding prison officials were

6

and was allowed to leave work for the Jumu’ah prayer service.

Although prison rules did not permit him to return to his cell to

pray while on the job, those policies did not prohibit his

praying at the commissary. Mack therefore prayed “[a]s much

as [he] could” at work. (J.A. at 134-35.) He typically prayed

in a back corner of the commissary where there was space for

him to do so during shift breaks.

Most guards let Mack pray without incident. But,

absent any written guidance from the prison on inmates’ rights

of worship, Mack perceived his ability to practice his faith as

depending on the goodwill of the individual guards. The

guards at Loretto were aware of his faith, both because he

regularly wore a religious head covering known as a kufi and

because the prison chaplain kept a list of all the inmates who

were practicing Muslims. Mack tried to stay mindful of the

guards’ attitudes toward Islam and sought to avoid

“inconveniencing” them. (J.A. at 125.) He believed that if one

of them was hostile to his faith, and he crossed that guard by

praying in front of him, “the negativity [was] going to come.”

(J.A. at 125, 129.) Were that to happen, Mack worried, it could

result in the guard finding some reason to discipline him, even

if no legitimate reason existed, and he could get put “[i]n the

not entitled to qualified immunity because it was clearly

established that “prison officials must respect and

accommodate, when practicable, a Muslim inmate’s religious

beliefs regarding prohibitions on the handling of pork”). We

have acknowledged that restriction derives, at least in part,

from the following statement in the Koran: “He has forbidden

you ... the flesh of swine.” Bitner, 455 F.3d at 187 (quoting

The Koran, Part II, 70:173 n. 210).

7

hole” (i.e., in solitary confinement). (J.A. at 125, 163-64.)

That fear of retaliation, Mack says, made him especially wary

of giving the guards any basis to write him up.

The “negativity” that Mack foresaw became a reality

when his job brought him into contact with Roberts and

Venslosky. As he perceived it – and as other inmates told him

– they were “out to get [him] because [he] was a Muslim,” and

they singled him out for disrespect and harassment

accordingly. (J.A. at 206.) Although their actions were

initially limited to some untoward “stares” and “looks,” they

began more “direct[ly]” confronting him as time went on. (J.A.

at 204-05.)

That “direct” confrontation was, for a while, limited to

“snide remarks” mocking Mack’s adherence to Islam. (J.A. at

137.) For instance, Roberts repeatedly told Mack that he didn’t

like him and specified, “I don’t like Muslims.” (J.A. at 202-

04.) Similarly, Venslosky told other inmates that he disliked

Mack because he was Muslim. Venslosky also “sarcastically

asked Mack whether Muslim was a religion [sic].” (J.A. at

293.) In early October of 2009, things went “downhill” when

Roberts said to Mack: “There is no good Muslim but a dead

Muslim.” (J.A. at 159-161.) While Roberts was disparaging

Mack, Venslosky would often sit back and grin, “egging him

on” and expressing what Mack saw as tacit approval of

Roberts’s conduct. (J.A. at 173-74.)

Of primary significance here, and in addition to the

verbal harassment, Roberts and Venslosky would interfere

with Mack’s efforts to pray during his commissary shifts.

Mack sometimes delayed his prayers so that he could avoid any

“foolishness” from them while he prayed. (J.A. at 136.) As he

8

viewed the situation, the two of them had “indicate[d] … that

they [were] going to make this [situation as] difficult as

possible because of [his] religion,” so there was no use in

exposing himself to further “abuse.” (J.A. at 136.)

Nevertheless, he did sometimes pray at work, and Roberts and

Venslosky started coming back to the corner of the commissary

when he did, even though they had “[n]o reason to be over

there.” (J.A. at 156-57.) They would “[i]nterrupt” Mack by

making noises, telling jokes, speaking loudly, and even kicking

the boxes that Mack was praying behind. (J.A. at 132-34, 156.)

Mack was supposed to be “concentrating on praying,”

according to the tenets of his faith, but he could not do so

because the officers “purposely” talked and made noises “just

because they kn[e]w [he was]” there praying. (J.A. at 132.)

His perception of the guards’ behavior was backed up by other

inmates who told him that Roberts and Venslosky “were trying

to interrupt [his] prayers.” (J.A. at 157-58.)

Further harassment occurred toward the end of Mack’s

time at the commissary. One Friday, as Mack left work for the

Jumu’ah prayer service, Roberts surreptitiously put a sticker on

Mack’s back. It said “I love pork bacon.” When Mack later

confronted Roberts about the prank, Roberts did not dispute

what he had done and told Mack, “You are not going to be here

long,” which Mack understood as a promise that he would lose

his commissary job. (J.A. at 174.)

Around that time, Mack decided to stop praying at the

commissary. He believed Roberts and Venslosky “didn’t want

to see” him praying, and, “after everything that was going on[,]

only a fool would still try to be in their face and let[] them have

any kind of ammunition to come at [him.]” (J.A. at 177-78.)

Mack confided his predicament to an imam, who told him that

9

he “shouldn’t even try to pray” at the commissary at the times

required by his faith and should instead wait to catch up on his

prayers after his shift had ended. (J.A. at 178-79.) Mack

heeded that advice and ceased praying at the commissary

altogether.

On October 21, 2009, less than two weeks after the

sticker-on-the-back incident, Mack was fired from his

commissary job. Venslosky, who carried out the termination,

explained that Mack had violated the prohibition on bringing

another inmate’s shopping slip into the commissary, which was

a fireable offense. 5 Mack denied the accusation and still does,

which he describes as a “mere pretext” to justify his being fired

“for seeking to practice the basic tenets of his Islamic faith

through prayer while working in the commissary.” (J.A. at

290.)

B. Procedural Background

This is the fourth time this case has come to our Court.

Mack’s lawsuit began in October 2010, when he filed a pro se

complaint against Roberts, Venslosky, and other Bureau of

Prison employees, alleging what we later construed to be

causes of action under Bivens v. Six Unknown Named Agents

of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), for

First and Eighth Amendment violations, as well as a claim

under the Religious Land Use and Institutionalized Persons

5

According to Mack, prison rules provide that an

inmate may only submit his order at the commissary by

handing in his slip when the commissary is open and operating.

Giving a slip to a worker ahead of time is prohibited.

10

Act of 2000 (“RLUIPA”), 42 U.S.C. §§ 2000cc et seq. Mack

v. Yost (Mack I), 427 F. App’x 70, 71 (3d Cir. 2011) (per

curiam). The District Court screened the complaint and

summarily dismissed it, but we reversed, holding that Mack

had alleged enough to merit a chance to amend his complaint.

Id. at 71-74.

Mack then filed an amended complaint, asserting what

the District Court took to be First Amendment retaliation and

Fifth Amendment Equal Protection claims under Bivens and a

claim under RLUIPA. Mack v. Yost, 979 F. Supp. 2d 639, 646,

649 (W.D. Pa. 2013). The defendants moved to dismiss, and

the Court granted their motion. Id. at 644, 652. As relevant

here, the District Court ruled that federal prisoners asserting

claims like Mack’s could sue only under RFRA, not RLUIPA.

Id. at 650. And under RFRA, the Court held, Mack failed to

allege a substantial burden on his religious exercise since he

was not “forced … to choose between following his religion

and forfeiting benefits” or “pressured … to modify his

religious behavior.” Id. at 650-51. Similarly, even if the claim

was construed as one under the Free Exercise Clause, the Court

said, Mack’s allegations were inadequate because he did not

claim that the defendants “prevent[ed] [him] from exercising

his religious beliefs” by, for instance, “den[ying] him the

opportunity to pray.” Id. at 651-52.

When Mack again appealed, we affirmed in part and

vacated in part. Mack v. Warden Loretto FCI (Mack II), 839

F.3d 286, 291 (3d Cir. 2016). We agreed with the dismissal of

the Free Exercise and Equal Protection claims, but we revived

the First Amendment retaliation claim, holding that such a

Bivens claim was cognizable, adequately alleged, and, at the

pleading stage, not barred by qualified immunity. Id. at 291,

11

295-301. We also vacated the dismissal of the RFRA claim,

holding that Mack had sufficiently pled that the defendants’

actions had substantially burdened his exercise of religion. Id.

at 301, 304. We noted that a burden can be “substantial,”

triggering heightened scrutiny under RFRA, “even if it

involves indirect coercion to betray one’s religious beliefs.”

Id. (citing Lyng v. Nw. Indian Cemetery Protective Ass’n, 485

U.S. 439, 450 (1988)). That standard was plausibly met, we

held, by Mack’s allegations that “Roberts’ anti-Muslim

harassment and … Venslosky’s tacit approval created a hostile

work environment” that put “indirect pressure … on Mack” “to

stop praying at work.” Id.

Back at the District Court, the remaining defendants –

Venslosky, Roberts, and one other guard – moved for summary

judgment on the two surviving claims, but the Court denied

their motion. See Mack v. Stevens, 2018 WL 4375083, at *1

(W.D. Pa. Sept. 13, 2018). Relying on our analysis in Mack II,

it held that a reasonable jury could side with Mack on his

RFRA claim and find that the defendants’ “anti-Muslim

comments, conduct, and tacit approval created a hostile and

harassing environment ‘substantial’ enough to dissuade Mack

from practicing his religion by praying at work as he had prior

to the harassment.” Id. at *5-6. The Court also concluded that

the defendants were not entitled to qualified immunity on the

First Amendment retaliation claim. Id. at *8.

The defendants appealed the part of the District Court’s

order denying them qualified immunity on the retaliation

claim, and we reversed. Mack v. Yost (Mack III), 968 F.3d 311,

314, 318 (3d Cir. 2020). We held that the claim was no longer

cognizable as a Bivens action in light of the Supreme Court’s

decision in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), which

12

narrowed the availability of such claims. Id. at 314, 325. That

left intact, on remand, just one final piece of the case: the

RFRA claim against Roberts and Venslosky.

Those two guards, the Defendants before us now,

moved again for summary judgment on that claim, asserting –

for the first time – that they are entitled to qualified immunity

for their actions because they did not violate any clearly

established rights. 6 This time, the District Court granted their

motion. It first concluded that qualified immunity is a defense

to a RFRA claim. Then, on the merits, the Court held that it

was not clearly established in 2009, when the Defendants’

conduct took place, that their harassing actions would violate

RFRA. The Court observed that Mack had not cited any cases

finding RFRA violations in factually similar circumstances,

since the cases he offered all entailed a “direct, outright denial,

or active limitation of a diet compelled by religious belief,”

rather than the “indirect, mostly verbal conduct” that caused

Mack to “voluntarily cease exercising a tenet of his faith.”

(J.A. at 16.) By contrast, the Court considered the cases cited

by the Defendants to be more analogous, cases in which

6

The Defendants relied on qualified immunity

throughout this litigation in seeking to defeat the First

Amendment retaliation claim, but they waited until their first

summary judgment motion to assert that defense against the

RFRA claim. Even then, they claimed that they had not

violated any right under RFRA but did not address the second

prong of the analysis, which asks whether the right at issue is

clearly established. Still, after Mack III, the District Court

permitted them to again move for summary judgment, this time

on whether they had violated any clearly established right.

13

“verbal harassment” was found to not substantially burden

religious exercise. (J.A. at 16.) To the District Court, those

cases showed there was no clearly established law prohibiting

conduct like the Defendants’.

Mack has once again appealed. The NAACP Legal

Defense and Education Fund, Inc. and Rights Behind Bars

(“Amici”) filed an amicus curiae brief in support of Mack, and

we granted them leave to present oral argument. We appreciate

their participation.

II. DISCUSSION 7

A. A Qualified Immunity Defense Is Available

Under RFRA

“[T]he judicially created doctrine of qualified

immunity” shields governmental officials from suit and from

liability if their conduct “does not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known.” Peroza-Benitez v. Smith, 994 F.3d 157,

7

The District Court had jurisdiction under 28 U.S.C.

§ 331. We have appellate jurisdiction pursuant to 28 U.S.C.

§ 1291. We exercise plenary review over matters of statutory

interpretation. Fair Hous. Rights Ctr. in Se. Pa. v. Post

Goldtex GP, LLC, 823 F.3d 209, 213 (3d Cir. 2016). “[W]e

are bound, on the basis of our independent judgment, … to

interpret statutory provisions and accord them the meaning that

Congress intended,” regardless of the parties’ positions. G.L.

v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601, 615 n.13 (3d

Cir. 2015) (cleaned up).

14

164-65 (3d Cir. 2021). Qualified immunity “balances two

important interests – the need to hold public officials

accountable when they exercise power irresponsibly and the

need to shield officials from harassment, distraction, and

liability when they perform their duties reasonably.” Id. at 164

(quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)).

Mack challenges the District Court’s grant of summary

judgment to the Defendants on the basis of that doctrine. But

before we consider his arguments, we first address the

threshold question of whether a qualified immunity defense is

even available in a suit brought under RFRA. We hold that it

is. 8

In interpreting RFRA, we begin, as with any statute,

with the text. Khan v. Att’y Gen., 979 F.3d 193, 197-98 (3d

Cir. 2020). It states that the “[g]overnment shall not

substantially burden a person’s exercise of religion … [unless]

it demonstrates that application of the burden to the person –

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling

8

The Defendants argue that Mack has forfeited the issue

of whether qualified immunity is available as a defense in a

RFRA case by failing to squarely bring it before us. But, even

if that were true, we must necessarily resolve that predicate

question of statutory interpretation, using “our independent

judgment,” id., before turning to the Defendants’ invocation of

immunity. See Stramaski v. Lawley, 44 F.4th 318, 326-27 (5th

Cir. 2022) (“[R]egardless of whether the applicability of

qualified immunity to [a statute] is a statutory-construction

issue or whether it is simply too critical to ignore in this case,

we will address it.”).

15

governmental interest.” 42 U.S.C. § 2000bb-1(a)-(b). Anyone

“whose religious exercise has been burdened in violation of

[RFRA]” can sue to “obtain appropriate relief.” Id. § 2000bb-

1(c). There is no mention of qualified immunity. Rather,

liability appears mandatory unless the defendant can show that

the actions constituting the substantial burden are the least

restrictive means of furthering a compelling government

interest. And the open-ended phrase “appropriate relief” does

not obviously hint at a qualified immunity defense.

But we do not interpret statutes in a vacuum, and

Congress does not legislate in one. Rather, “Congress is

presumed to enact legislation with knowledge of the law and a

newly-enacted statute is presumed to be harmonious with

existing law and judicial concepts.” Farina v. Nokia Inc., 625

F.3d 97, 112 (3d Cir. 2010). In the RFRA setting in particular,

the authorization of “appropriate relief” is “inherently context

dependent.” Tanzin v. Tanvir, 141 S. Ct. 486, 491 (2020)

(quoting Sossamon v. Texas, 563 U.S. 277, 286 (2011)).

Congress passed RFRA in 1993, Pub. L. No. 103-141,

§ 2, 107 Stat. 1488, more than a century after it enacted the

Civil Rights Act of 1871. The present-day version of the latter,

42 U.S.C. § 1983, permits suits against state government

officials who deprive individuals of “any rights, privileges, or

immunities secured by the Constitution and laws.” Like

RFRA, § 1983 “on its face admits of no immunities.” Malley

v. Briggs, 475 U.S. 335, 339 (1986). “By the time Congress

enacted RFRA,” however, the Supreme Court had interpreted

§ 1983 “to permit monetary recovery against officials” only if

they “violated ‘clearly established’ federal law.” Tanzin, 141

S. Ct. at 491.

16

Specifically, the Court had held that § 1983 did not

abrogate certain well-established common-law immunities

protecting government officials. Buckley v. Fitzsimmons, 509

U.S. 259, 268 (1993); Pierson v. Ray, 386 U.S. 547, 554-55

(1967); cf. Malley, 475 U.S. at 339 (“[W]e have read [§ 1983]

‘in harmony with general principles of tort immunities and

defenses rather than in derogation of them.’”). The Court

understood the common law as of 1871 to provide most

officials a qualified immunity from liability for their actions.

Buckley, 509 U.S. at 268. Section 1983 did not abrogate such

immunity, so, under the statute, an officer who violated an

individual’s federal rights could not be subject to liability for

damages if those rights were not clearly established. 9 Id.;

Davis v. Scherer, 468 U.S. 183, 194 n.12 (1984) (“[O]fficials

sued for violations of rights conferred by a statute … become

liable for damages only to the extent that there is a clear

violation of the statutory rights that give rise to the cause of

action for damages.”).

9

Although the Court found support in the common law

for the existence of qualified immunity, Buckley v.

Fitzsimmons, 509 U.S. 259, 268 (1993), the standard for

immunity on which it ultimately settled – shielding officers

from liability unless they violated clearly established rights of

which an objectively reasonable person would have known –

was “not at all embodied in the common law.” Anderson v.

Creighton, 483 U.S. 635, 645 (1987). Rather, the Court

“completely reformulated qualified immunity” and steered the

doctrine away from “the inquiry into [whether the officer acted

with] subjective malice so frequently required at common

law.” Id.

17

And while § 1983 is the vehicle for claiming that state

officials have violated federal constitutional or statutory rights,

the Supreme Court has held that Bivens actions asserting

implied causes of action against federal officials for

constitutional violations are similarly subject to a qualified

immunity defense. Butz v. Economou, 438 U.S. 478, 500-04

(1978). The Court found “no basis” for treating differently

“federal officials … sued for a constitutional infringement as

authorized by Bivens” and “state officials … sued for the

identical violation under § 1983.” Id. at 500.

So, to summarize: Congress enacted RFRA against a

“legal backdrop,” Tanzin, 141 S. Ct. at 490 (internal quotation

marks omitted), in which state and federal officials sued for

violating the Constitution, and state officials sued for violating

federal law, could invoke qualified immunity as a defense.

Indeed, qualified immunity “represent[ed] the norm” when it

came to suits against public officials. Harlow v. Fitzgerald,

457 U.S. 800, 807 (1982). It is therefore appropriate to

presume that Congress drafted RFRA mindful of and

consistent with that status quo. Cf. Farina, 625 F.3d at 112 (“It

is only natural that Congress would intend to incorporate into

[the Class Action Fairness Act] the case law governing

amended pleadings.”).

That presumption is not absolute, as Congress can

“override” the “background of common-law adjudicatory

principles.” Mohamad v. Palestinian Auth., 566 U.S. 449, 457

(2012) (internal quotation marks omitted). But here, there is

good reason to think that Congress embraced and incorporated

the doctrine of qualified immunity in enacting RFRA. The

Supreme Court’s decision in Tanzin v. Tanvir is instructive.

141 S. Ct. 486 (2020). The question presented in that case was

18

whether RFRA’s authorization of “appropriate relief”

“include[d] claims for money damages against Government

officials in their individual capacities,” and the Court answered

in the affirmative. Id. at 489. It first held that RFRA, like

§ 1983, authorized individual-capacity suits against federal

officers. Id. at 490. “Because RFRA uses the same

terminology as § 1983 in the very same field of civil rights law,

‘it is reasonable to believe that the terminology bears a

consistent meaning,’” the Court reasoned. Id. at 490-91

(quoting Antonin Scalia & Bryan Garner, Reading Law: The

Interpretation of Legal Texts 323 (2012)). In deciding what

relief was “appropriate” in such suits, the Court looked to the

“availability of damages under § 1983” in suits against state

and local government officials. Id. at 491-92. Since the

statutes are sufficiently similar, “parties suing under RFRA

must have at least the same avenues for relief against officials”

that they had under § 1983, which included “a right to seek

damages against Government employees.” Id. at 492.

The Court did not directly address whether the right to

damages under RFRA was subject to a qualified immunity

defense. But, in a footnote, it observed with apparent approval

that the parties had agreed “that government officials are

entitled to assert a qualified immunity defense when sued in

their individual capacities for money damages under RFRA.”

Id. at 492 n.*. It then went on to highlight the government’s

position that the qualified immunity defense “was created for

precisely these circumstances” – i.e., suits seeking money

damages from officials sued in their individual capacities – and

is “a ‘powerful shield’ that ‘protects all but the plainly

incompetent or those who flout clearly established law.’” Id.

(internal citations omitted).

19

Although Tanzin did not say whether qualified

immunity is available to RFRA defendants, the force of its

logic makes the answer clear. Just as the textual similarity

between § 1983 and RFRA means that those statutes provide

analogous remedies, id. at 492, it stands to reason that they also

contemplate analogous defenses. Qualified immunity limits a

§ 1983 plaintiff’s ability to obtain damages, and since

“Congress intended for courts to borrow concepts from § 1983

jurisprudence when construing RFRA,” Mack II, 839 F.3d at

302, qualified immunity must also limit a RFRA plaintiff’s

ability to get damages. See Ajaj v. Fed. Bureau of Prisons, 25

F.4th 805, 814 (10th Cir. 2022) (“The very analysis [in Tanzin]

that supported recognition of the damages claim also compels

recognition of qualified immunity.”). Underscoring that

rationale, Tanzin’s conspicuously detailed and approving

footnote reference to qualified immunity signals that

application of the doctrine to RFRA claims is appropriate.

Even if we felt that there was some room for doubt after

Tanzin, refusing to recognize a qualified immunity defense to

RFRA claims would be inconsistent with precedent extending

the defense to claims under a number of other statutes. The

Supreme Court has relied on the doctrine when examining a

claim under 42 U.S.C. § 1985(3), a Civil War Era remedial

statute that prohibits conspiracies to deprive others of equal

protection or equal privileges under the law. Ziglar v. Abbasi,

137 S. Ct. 1843, 1865-66 (2017). And “many circuits have

applied qualified immunity to individual-capacity suits under

a variety of statutes,” Ajaj, 25 F.4th at 814, including the

Family and Medical Leave Act, the Americans with

Disabilities Act, the Rehabilitation Act of 1973, the Racketeer

Influenced and Corrupt Organizations Act, the Sherman

Antitrust Act, the Fair Housing Act, and Title VI of the Civil

20

Rights Act of 1964. Bryant v. Tex. Dep’t of Aging & Disability

Servs., 781 F.3d 764, 771 (5th Cir. 2015); Gonzalez v. Lee

Cnty. Hous. Auth., 161 F.3d 1290, 1299-300, 1300 n.34 (11th

Cir. 1998). 10 Our Amici claim that, because RFRA is focused

on a specific subject matter, as opposed to § 1983’s broader

focus, using a judge-made doctrine to limit recovery would

undermine its purpose. The same, however, could be said of

the various statutes that courts have found to be subject to a

qualified immunity defense, and yet those laws have been read

to incorporate the doctrine.

But RFRA is special, say both Mack and our Amici.

The statute was designed to protect religious liberty rights, and

so, they argue, it would frustrate the statutory promise of

protection if we recognize a qualified immunity defense that

lets officers off the hook except when they violate clearly

established law. Yet while the First Amendment’s Free

10

Amici direct us to a case refusing to apply qualified

immunity to whistleblower retaliation suits under the False

Claims Act (“FCA”), Samuel v. Holmes, 138 F.3d 173 (5th Cir.

1998). But the concern there was that, “given the goals of the

FCA[]” to discourage fraud against the government and

encourage those with knowledge of such fraud to disclose it,

“[g]ranting government officials … qualified immunity would

hardly spur reluctant employees to step forward.” Id. at 178;

see also United States ex rel. Citynet, LLC v. Gianato, 962 F.3d

154, 159 (4th Cir. 2020) (declining to recognize a qualified

immunity defense under another FCA provision). The FCA’s

purposes take it far afield of RFRA, which, like § 1983, is a

remedial statute designed to protect civil rights. Section 1983,

then, provides the much better comparator.

21

Exercise Clause also serves as a bulwark against governmental

intrusion on religious practice, there is “no doubt that damages

claims have always been available under § 1983 for clearly

established violations of the First Amendment.” Tanzin, 141

S. Ct. at 492 (emphasis added). In other words, such relief is

available only when defendants are not entitled to qualified

immunity.

It is true that RFRA was enacted to guarantee more

generous protections for religious freedom than are available

under the Supreme Court’s present interpretation of the First

Amendment. A few years before passage of the statute, the

Court in Employment Division, Department of Human

Resources of Oregon v. Smith overruled prior caselaw and held

that neutral and generally applicable laws, even if they

incidentally burden religious exercise, pass muster under the

First Amendment. 494 U.S. 872, 880-81, 883-86 & n.3 (1990);

cf. Yellowbear v. Lampert, 741 F.3d 48, 52 (10th Cir. 2014)

(Gorsuch, J.) (noting that pre-Smith caselaw “suggested that no

law, not even a neutral law of general applicability,” could

substantially burden religious exercise unless that burden is the

least restrictive means of achieving a compelling governmental

interest). With RFRA, Congress revived the Court’s pre-Smith

precedents, prohibiting government officials from taking any

action that substantially burdens religious exercise, “even if the

burden results from a rule of general applicability,” if the

action is not the least restrictive means of furthering a

compelling government interest. 11 42 U.S.C. § 2000bb-1(a);

11

RFRA actually “did more than merely restore the …

[pre-Smith] line of cases; it provided even broader protection

for religious liberty” by adding the “least restrictive means”

22

see also id. § 2000bb(a)(2) (finding that “laws ‘neutral’ toward

religion may burden religious exercise as surely as laws

intended to interfere with religious exercise”).

In short, RFRA placed individuals on essentially the

same footing as they had been prior to Smith in terms of their

rights against and remedies for governmental invasions of

religious liberty. Those remedies, of course, included money

damages under § 1983 and Bivens, subject to a qualified

immunity defense. There is no reason to believe that the robust

safeguards RFRA put in place to defend religious freedom

effected a departure from the existing practice of allowing

officers to invoke qualified immunity.

Our Amici emphasize that RFRA and its silence on the

matter of qualified immunity is “modern,” as compared with

the long history of § 1983’s silence. (Amici Br. at 16.) But

RFRA’s being of more recent vintage cuts against discarding

qualified immunity, as that doctrine was firmly in place for

other civil-rights actions when RFRA was enacted. See

Gonzalez, 161 F.3d at 1299 n.31 (reasoning that a statute’s

“silen[ce] as to qualified immunity indicates that Congress did

not intend to preclude the common-law qualified immunity

defense” in suits under that statute). After all, if Congress had

wanted to discard the doctrine, “we presume that [it] would

have specifically so provided.” Buckley, 509 U.S. at 268.

Finally, our Amici challenge the doctrinal justifications

for affording officers qualified immunity, arguing that we

requirement. Burwell v. Hobby Lobby Stores, Inc., 573 U.S.

682, 695 n.3 (2014).

23

should decline to expand the doctrine to a new context due to

its lack of a sound basis in text, history, or practical

considerations. True enough, the textual and policy-based

underpinnings of qualified immunity have generated debate in

recent years. 12 Reconsidering whether the doctrine should

12

Compare Baxter v. Bracey, 140 S. Ct. 1862, 1862-64

(2020) (Thomas, J., dissenting from the denial of certiorari)

(arguing that the Supreme Court’s “§ 1983 qualified immunity

doctrine appears to stray from the statutory text” and is not

“grounded in the common-law backdrop against which

Congress enacted the 1871 Act”); Kisela v. Hughes, 138 S. Ct.

1148, 1162 (2018) (Sotomayor, J., dissenting) (contending that

the doctrine has been “transform[ed] … into an absolute shield

for law enforcement officers”); William Baude, Is Qualified

Immunity Unlawful?, 106 Cal. L. Rev. 45, 45-46 (2018)

(describing qualified immunity as “unlawful and inconsistent

with conventional principles of statutory interpretation” and

having “shoddy foundations”); Joanna C. Schwartz, The Case

Against Qualified Immunity, 93 Notre Dame L. Rev. 1797,

1799-800 (2018) (qualified immunity “fails to achieve its

intended policy aims,” “hamper[s] the development of

constitutional law[,] and may send the message that officers

can disregard the law without consequence”); with Scott A.

Keller, Qualified and Absolute Immunity at Common Law, 73

Stan. L. Rev. 1337, 1337 (2021) (asserting that the common

law in 1871 recognized a qualified immunity against suit

absent evidence of “an officer’s subjective improper

purpose”); Aaron L. Nielson & Christopher J. Walker, A

Qualified Defense of Qualified Immunity, 93 Notre Dame L.

Rev. 1853, 1874-75, 1882-85 (2018) (defending the doctrine

on stare decisis grounds and arguing that it is effective in

weeding out meritless suits); Hon. Andrew S. Oldham, Official

24

continue in its current form, however, is not within our

purview. That decision lies with Congress, as wielder of the

statute-drafting pen, and with the Supreme Court, as chief

interpreter of Congress’s handiwork. Unless and until either

of those bodies changes the legal landscape, we must faithfully

apply both the letter and spirit of binding precedent. See

Winslow v. F.E.R.C., 587 F.3d 1133, 1135 (D.C. Cir. 2009)

(Kavanaugh, J.) (“Vertical stare decisis – both in letter and in

spirit – is a critical aspect of our hierarchical Judiciary headed

by ‘one supreme Court.’”). In light of the Court’s recognition

in Tanzin of the similarities between RFRA and § 1983, and in

the absence of any principled reason to treat RFRA differently

from the other statutes that are subject to qualified immunity

defenses, precedent and principles of statutory interpretation

prompt us – as they have several of our sister circuits 13 – to

Immunity at the Founding 1, 22-27 (Apr. 19, 2021)

(unpublished manuscript) (available at

https://papers.ssrn.com/sol3/papers.cfm?

abstract_id=3824983) (suggesting that the original public

meaning of the Fourth Amendment incorporated a form of

qualified immunity as a constitutional matter).

13

See Ajaj v. Fed. Bureau of Prisons, 25 F.4th 805, 817

(10th Cir. 2022) (“We conclude that qualified immunity can be

invoked by officials sued for damages in their individual

capacities under RFRA.”); accord Fazaga v. Fed. Bureau of

Investigation, 965 F.3d 1015, 1061 (9th Cir. 2020) (analyzing

RFRA claim to see if “it was not clearly established” when the

defendants’ conduct took place that it would count as a

“substantial religious burden”), rev’d on other grounds, 142 S.

Ct. 1051 (2022); Davila v. Gladen, 777 F.3d 1198, 1210-11

(11th Cir. 2015) (similar); Lebron v. Rumsfeld, 670 F.3d 540,

25

accept qualified immunity as a limit on the scope of relief

under RFRA.

B. The Defendants Are Not Entitled To

Qualified Immunity At This Stage 14

We turn next to the core question on appeal: whether the

District Court correctly granted the Defendants qualified

immunity on the grounds that they did not violate clearly

established rights. Based on the record before us, we conclude

it was error to deem the Defendants immune at this stage of the

560 (4th Cir. 2012) (similar); see also Rasul v. Myers, 563 F.3d

527, 533 n.6 (D.C. Cir. 2009) (per curiam) (holding, in the

alternative, that the defendants “are entitled to qualified

immunity against plaintiffs’ RFRA claim”).

14

We exercise plenary review over a district court’s

grant of summary judgment based on qualified immunity.

Jefferson v. Lias, 21 F.4th 74, 80 (3d Cir. 2021). Similarly, we

review de novo “the legal grounds underpinning a claim of

qualified immunity.” Karns v. Shanahan, 879 F.3d 504, 512

(3d Cir. 2018). Summary judgment is appropriate if “there is

no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).

We view the evidence in the light most favorable to the non-

moving party and “give that party the benefit of all reasonable

inferences that can be drawn from the evidence.” Halsey v.

Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014); see also Bitner, 455

F.3d at 187 n.1 (“Because we are reviewing a claim of

qualified immunity, we view the factual allegations in the light

most favorable to the party claiming injury.” (citing Saucier v.

Katz, 533 U.S. 194, 201 (2001))).

26

case. The grant of summary judgment in their favor thus

cannot stand.

Our inquiry is guided by the two-prong test for qualified

immunity, the first prong being whether the facts, as viewed in

the light most favorable to the plaintiff, show the violation of a

legal right, and the second being whether that right was clearly

established. Peroza-Benitez, 994 F.3d at 165. “[T]he party

asserting the affirmative defense of qualified immunity” bears

the burden of persuasion on both prongs at summary judgment.

Halsey v. Pfeiffer, 750 F.3d 273, 288 (3d Cir. 2014).

1. Mack’s Rights Were Violated

It is undisputed that the first prong – a violation of

Mack’s RFRA rights – has been established here. To establish

a prima facie case under RFRA, Mack needed to show “that

the government (1) substantially burdened (2) a sincere (3)

religious exercise.” Mack II, 839 F.3d at 304. Here, there is

no question that Mack sincerely adheres to his faith, and that

his prayers at the commissary constituted religious exercise.

RFRA defines “exercise of religion” to mean “any exercise of

religion, whether or not compelled by, or central to, a system

of religious belief.” See 42 U.S.C. § 2000bb-2(4)

(incorporating RLUIPA’s definition for “religious exercise,”

42 U.S.C. § 2000cc-5(7), as the definition of “exercise of

religion” for RFRA). Thus, Mack’s prayers are no less

religious exercise because he heeded his imam’s advice and

ceased praying at the commissary altogether after Roberts and

Venslosky escalated their campaign of harassment against him.

See Holt v. Hobbs, 574 U.S. 352, 355-56, 362 (2015)

(explaining it was error to treat “the burden on petitioner’s

religious exercise,” i.e., a prison policy prohibiting him from

27

growing a half-inch beard, as “slight” because “his religion

would ‘credit’ him for attempting to follow his religious

beliefs, even if that attempt proved to be unsuccessful” because

RLUIPA “applies to an exercise of religion regardless of

whether it is ‘compelled’”).

As for the substantial burden element of the prima facie

case, we held it was satisfied at the motion-to-dismiss stage, as

Mack plausibly alleged that Roberts and Venslosky had placed

“indirect pressure … on [him]” “to stop praying at work” by

creating a “hostile work environment” that drove him to

“betray [his] religious beliefs.” Mack II, 839 F.3d at 304. And

the District Court found “[t]he same conclusion … warranted”

on the basis of the factual record at summary judgment,

concluding that a reasonable jury could find that the

Defendants had “‘substantially burdened’ Mack’s religious

exercise by pressuring him into altering his prayer rituals.”

Mack, 2018 WL 4375083, at *5.

The Defendants nowhere argue that the District Court

got that wrong. It thus became incumbent upon them to show

that their actions were the least restrictive means of furthering

a compelling government interest. Small v. Lehman, 98 F.3d

762, 767 (3d Cir. 1996), overruled on other grounds by City of

Boerne v. Flores, 521 U.S. 507 (1997); Korte v. Sebelius, 735

F.3d 654, 673 (7th Cir. 2013). They have not even attempted

to do that. Accordingly, we see no reason to disturb the District

Court’s conclusion that the Defendants unlawfully infringed

Mack’s religious liberty. For our purposes, then, we proceed

with the understanding that a violation of RFRA occurred,

although we reiterate that this conclusion is made solely for the

purpose of reviewing the summary judgment ruling now on

28

appeal and is based on viewing in the light most favorable to

Mack the record as it now stands.

2. Mack’s Rights Were Clearly

Established

Because the Defendants have failed on the first prong of

the qualified immunity analysis, they are only entitled to

summary judgment if they can bear the burden of showing, on

the second prong, that reasonable officers could not have

known that their actions violated clearly established law.

Halsey, 750 F.3d at 288. In analyzing the “clearly established

law” prong, we proceed in two steps: we first “define the right

allegedly violated at the appropriate level of specificity” and

then “ask whether that right was ‘clearly established’ at the

time of its alleged violation.” Jefferson, 21 F.4th at 81.

a. The Right as Properly Defined

It is essential to begin by “fram[ing] the right ‘in light

of the specific context of the case,’” with all reasonable

inferences drawn in the nonmovant’s favor. Peroza-Benitez,

994 F.3d at 165-66; accord Tolan v. Cotton, 572 U.S. 650, 657

(2014) (“Our qualified-immunity cases illustrate the

importance of drawing inferences in favor of the nonmovant,

even … [on] the clearly-established prong of the standard.”).

The Supreme Court has repeatedly cautioned that the qualified

immunity inquiry demands a “high ‘degree of specificity’” and

that courts may not “define clearly established law at a high

level of generality,” which would “avoid[] the crucial question

whether the official acted reasonably in the particular

circumstances that he or she faced.” District of Columbia v.

Wesby, 138 S. Ct. 577, 590 (2018).

29

Mack misses the mark when he frames the relevant right

as a freedom from “restrictions on or hindrances to central

religious practices” or “direct or indirect governmental action”

that burdens his religious practices. (Opening Br. at 13, 24;

accord Mack Supp. Ltr. at 3 (“[I]t is clearly established that a

defendant cannot substantially burden a prisoner’s religious

practices – either directly or indirectly – without

justification.”).) That is far too broad and generic a statement.

See HIRA Educ. Servs. N. Am. v. Augustine, 991 F.3d 180, 191

(3d Cir. 2021) (finding inadequately specific, for qualified

immunity analysis on First Amendment and RLUIPA claims,

“the general constitutional rule that government officials

cannot interfere with the free exercise of religion”). Indeed, it

is hard to imagine any RFRA violation – which necessarily

requires that government “substantially burden” the exercise of

religion, 42 U.S.C. § 2000bb-1(a) – that would not involve a

“restriction on” or “hindrance[] to” religious exercise achieved

through either “direct or indirect” government action.

But the Defendants also fail to correctly frame the right.

Their framing is, in a sense, too narrow, as it ignores the

present factual and procedural realities of the case. Taking

their cue from our decision in Mack II, they assert that the right

at issue is freedom from a “hostile work environment” ‒ one

consisting of “mostly verbal” “anti-Muslim harassment” ‒ that

“indirect[ly]” causes an inmate to “refrain from praying during

his prison work assignment.” (Answering Br. at 7, 12-13, 18

(quoting Mack II, 839 F.3d at 304).) Mack II, however, was

decided at the pleading stage, based on a liberal construction

of Mack’s pro se amended complaint. 839 F.3d at 293-94. Our

discussion of Mack’s allegations focused on Roberts slapping

an “I LOVE BACON” sticker on Mack’s back and later saying

30

to him, “there is no good Muslim, except a dead Muslim!” Id.

at 291-92.

The record is different now, and so is the procedural

posture. We are reviewing the District Court’s ruling at

summary judgment, with the benefit of a developed factual

record, including, in particular, Mack’s deposition testimony.

That testimony, taken at face value, reveals that in addition to

the harassment we identified from Mack’s allegations, the

Defendants actively and intentionally interfered with Mack’s

ability to practice his Muslim faith. Mack spoke about the

importance of praying five times a day at set times, which he

tried to do by praying “[a]s much as [he] could” while on shift

breaks at the commissary. (J.A. at 134-35.) He also described

how Roberts and Venslosky would come to the back corner of

the commissary and make noises, tell jokes, speak loudly, and

kick boxes around, “[i]nterrupt[ing]” the focus Mack was

trying to achieve while he prayed. (J.A. at 132-34.) Those

disruptions, Mack testified, were a purposeful part of an overall

campaign by the officers to get him to stop praying at the

commissary. And that campaign, according to Mack, led him

to first delay his prayers and then to cease praying altogether

at the times required by his faith. He instead tried to catch up

on his prayers at the end of the day.

In light of that deposition testimony, we conclude that

the District Court erred in how it framed the relevant right in

its “clearly established law” analysis. The Court largely sided

with the Defendants’ view and looked to see whether the

unlawfulness of their “mostly verbal” anti-Muslim harassment

and hostility was clearly established. (J.A. at 16.) But a better

characterization of the RFRA violation – one that more

appropriately reflects “the specific context of the case,” as

31

viewed in the light most favorable to Mack, Peroza-Benitez,

994 F.3d at 165-66 – is that the Defendants violated Mack’s

right to engage in prayer free of substantial, deliberate,

repeated, and unjustified disruption by prison officials. That

understanding of the right tracks Mack’s portrayal of the harm

he experienced, and it takes account of the Defendants’ failure

to tie their behavior to any legitimate penological interest, let

alone a compelling one as required by RFRA. 15 (Opening Br.

15

Our dissenting colleague agrees with the Defendants’

and the District Court’s more narrow framing of the

constitutional right at issue, but even the Defendants

acknowledge that Mack “attempts to characterize the conduct

in this case as involving … a ‘persistent’ and ‘malicious’

‘campaign’ to stop [him] from praying.” (Answering Br. at 18.)

And the Defendants do not argue that such framing is too

general. Indeed, they make no effort to show that their conduct

did not clearly violate RFRA or other analogous free exercise

jurisprudence. Instead, they refuse to engage with that framing

because they say it is either foreclosed by Mack II’s discussion

of Mack’s pro se allegations or by the record before us now.

But we have now rejected both of those bases. See supra at

Section II.B.1.

The Dissent also argues that our framing of the right is

too general and abstract and, further, that we fail to account for

the fact that Mack ceased praying voluntarily and did so

believing that cessation would not violate his faith. We must

respectfully disagree. To say that a prison official may not,

without legitimate justification, engage in a substantial,

deliberate, and repeated effort to interfere with an inmate’s

prayer is not to indulge in an abstraction. It is certainly not

akin to defining the right in an excessive force case by saying

simply that “objective reasonableness” is the touchstone for

32

Fourth Amendment claims, Graham v. Connor, 490 U.S. 386,

388 (1989), or reciting the broad statements of Tennessee v.

Garner, 471 U.S. 1 (1985), regarding the use of deadly force.

But even if our framing could be construed as closer to that end

of the generality spectrum, the Supreme Court made it plain in

Brosseau v. Haugen that, in the Fourth Amendment context,

“[o]f course, in an obvious case, the[] standards [of Graham

and Garner] can ‘clearly establish’ the answer, even without a

body of relevant case law.” 543 U.S. 194, 199 (2004) (citing

Hope v. Pelzer, 536 U.S. 730, 738 (2002)). Such an obvious

case confronts us now.

Neither Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 8-9

(2021) (per curiam), nor White v. Pauly, 580 U.S. 73, 80 (2017)

(per curiam), changes the obviousness inquiry. Indeed, the

Supreme Court in Rivas-Villegas specifically reaffirmed the

point we have just set out, citing Brosseau. See Rivas-Villegas,

142 S. Ct. at 8 (explaining that, though “Graham’s and

Garner’s standards are cast ‘at a high level of generality[,]’

Brosseau, 543 U.S. at 199, ‘[i]n an obvious case, these

standards can ‘clearly establish’ the answer, even without a

body of relevant case law”). The Court concluded only that the

encounter at issue in Rivas-Villegas did not present an obvious

case. Id. White likewise reaffirmed Brosseau but, again, found

the situation confronted by the officer in question to be a non-

obvious case. See White, 580 U.S. at 74, 80 (reaffirming its

“h[o]ld[ing] that Garner and Graham do not by themselves

create clearly established law outside ‘an obvious case’”

(quoting Brosseau, 543 U.S. at 199)).

Turning to the suggestion that Mack’s supposedly

voluntary cessation of prayer changes the calculus here, we

again part ways with our dissenting colleague. As noted

earlier, RFRA defines the “exercise of religion” to cover more

33

at 6, 15, 17-18, 21 (asserting that the Defendants “repeatedly”

and “intentionally” waged a “campaign to force Mack to stop

praying,” which included “intrud[ing] into” and

“interrupt[ing]” Mack’s prayers, using intimidation, along with

harassing statements and actions, which “served no

conceivable penological purpose”).)

If the District Court felt constrained by our description

of Mack’s allegations at the motion-to-dismiss stage, it should

not have. Usually, the law of the case doctrine dictates that

“when a court decides upon a rule of law, that decision should

continue to govern the same issues in subsequent stages in the

same case.” Farina, 625 F.3d at 117 n.21. But that doctrine

does not prevent a court from deciding a summary judgment

motion based on record evidence in a way that differs from

previous decisions that were based on allegations in the

complaint. See Wiest v. Tyco Elecs. Corp., 812 F.3d 319, 329-

30 (3d Cir. 2016) (rejecting a contrary argument as a “critical

misapplication of the fundamental distinction between a

motion to dismiss under Rule 12(b)(6) and a motion for

summary judgment under Rule 56”). Our analysis of Mack’s

complaint was not the law of the case for the District Court

when it considered the record at summary judgment, nor is it

than what one’s faith compels him to do. See Section II.B.1.

More importantly, on the facts as we must take them, Mack

stopped praying not because he wanted to but because the

Defendants successfully campaigned to make him stop. That

he did stop praying at the commissary does not end the matter,

as the Dissent suggests. It is the matter. It is the whole point.

We must confront whether such a campaign was clearly

unlawful when the Defendants waged it.

34

the law of the case for us now. 16 We are therefore free to, and

do, conclude that the relevant right here is the right to pray free

of substantial, deliberate, repeated, and unjustified disruption

by prison officials.

b. Clearly Established Violation of

the Right

Finally, we must decide if the right, as properly framed,

is “sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” Peroza-

Benitez, 994 F.3d at 165 (internal quotation marks omitted).

That is “an objective (albeit fact-specific) question, where an

officer’s subjective beliefs are irrelevant.” Id. (cleaned up). 17

16

For the same reason, Mack is wrong to say that the

entire question of qualified immunity is resolved by Mack II.

And in any event, we said nothing there about qualified

immunity as it relates to Mack’s RFRA claim, since the issue

had not been raised. So even if Mack II constrained our

analysis, the law of the case doctrine still would not settle the

qualified immunity issue. See Africa v. City of Philadelphia,

158 F.3d 711, 718 (3d Cir. 1998) (“The law of the case

doctrine… preclude[s] review of only those legal issues that

the court in a prior appeal actually decided.”).

17

We note an important distinction here: whether a

reasonable officer “would understand that what he is doing

violates [a clearly established] right” is an objective test,

Peroza-Benitez, 994 F.3d at 165, but that does not mean that

only constitutional violations lacking a subjective element can

become clearly prohibited by established law. While it is

“simply irrelevant” whether the government officials “in fact

knew that they were violating plaintiffs’ constitutional rights,”

35

A right is clearly established if there is either “closely

analogous” caselaw establishing that a defendant’s conduct

was unlawful or “evidence that the Defendant’s conduct was

we have explained that, “in evaluating a defense of qualified

immunity, an inquiry into the defendant’s state of mind is

proper where such state of mind is an essential element of the

underlying civil rights claim.” Grant v. City of Pittsburgh, 98

F.3d 116, 123, 125 (3d Cir. 1996). Indeed, on a number of

occasions we have analyzed clearly established rights

involving a subjective state-of-mind element. See, e.g., Dennis

v. City of Philadelphia, 19 F.4th 279, 290 (3d Cir. 2021) (“We

conclude that the constitutional rule that framing criminal

defendants through use of fabricated evidence, including false

or perjured testimony, violates their constitutional rights

applies with such obvious clarity that it is unreasonable for us

to conclude anything other than that the detectives were on

sufficient notice that their fabrication of evidence violated

clearly established law.”); Kedra v. Schroeter, 876 F.3d 424,

444 (3d Cir. 2017) (finding in connection with the shooting of

police officer by his instructor during firearms training that

“the allegations in [the] complaint are more than sufficient to

state a claim for a state-created danger based on actual

knowledge of a substantial risk of serious harm ‒ the subjective

theory of deliberate indifference that was then-clearly

established”); Halsey, 750 F.3d at 296 (“The Supreme Court

established decades before the original investigation in this

case that the Constitution forbids prosecutors from knowingly

using perjured testimony to secure a criminal conviction.”).

Hence, our inclusion of the word “deliberate” in the framing of

the right at issue here is not inconsistent with an objective test

for whether a right is clearly established.

36

so patently violative of the … right that reasonable officials

would know [it to be a violation] without guidance from a

court.” Schneyder v. Smith, 653 F.3d 313, 330 (3d Cir. 2011).

We take a “broad view” of what makes a right clearly

established, which can be satisfied “even without a precise

factual correspondence between the case at issue and a

previous case.” Peroza-Benitez, 994 F.3d at 166 (internal

quotation marks omitted). It is enough that “existing precedent

… placed the statutory … question beyond debate.” 18 Ashcroft

v. al-Kidd, 563 U.S. 731, 741 (2011); accord Williams v.

Bitner, 455 F.3d 186, 192 (3d Cir. 2006) (“[I]f the

unlawfulness of the defendant’s conduct would have been

apparent to a reasonable official based on the current state of

18

We make no distinction here between cases applying

RFRA and those relying on RLUIPA, since “the two statutes

are analogous for purposes of the substantial burden test.”

Mack II, 839 F.3d at 304 n.103. RFRA originally applied to

both the federal government and the states, but the Supreme

Court later held the law unconstitutional as applied to the

states. City of Boerne v. Flores, 521 U.S. 507, 532-36 (1997).

Congress responded by passing RLUIPA, which “impose[d]

the same general test as RFRA” on state prison practices and

zoning regulations. Hobby Lobby Stores, Inc., 573 U.S. at 695;

42 U.S.C. §§ 2000cc, 2000cc-1. For similar reasons, we look

to First Amendment Free Exercise cases, particularly those

decided before Smith. RFRA “reinstat[ed] … the pre-Smith

substantive protections of the First Amendment,” Tanzin v.

Tanvir, 141 S. Ct. 486, 492 (2020), and the issue on which

RFRA and post-Smith First Amendment jurisprudence have

diverged – the legality of neutral and generally applicable rules

that burden religion – is not implicated here.

37

the law, it is not necessary that there be binding precedent from

this circuit so advising.”).

Mack directs our attention to a handful of cases to show

that his RFRA rights were clearly established, but none are

particularly pertinent. They primarily involve “failure[s] to

accommodate” an inmate’s religion by refusing to grant

requested dietary modifications. (Opening Br. at 22-23.) In

one sense, Mack has underplayed his hand. There can be

legitimate penological reasons for granting some but not all of

an inmate’s requests for what to serve at dinner. See Williams

v. Morton, 343 F.3d 212, 216-21 (3d Cir. 2003) (First

Amendment was not violated by affording Muslim inmates

vegetarian meals, which are permitted by their faith, but not

meals with halal meat). But the unrebutted evidence at this

juncture shows that the Defendants were deliberately trying to

disrupt Mack’s prayers and so to pressure him to give up a

central practice of his faith; no justification for that bigoted

behavior has even been attempted.

Also inapposite is Mack’s citation to an unreported

district court case, Pineda-Morales v. De Rosa, in which an

inmate was barred from engaging in more than a single prayer

service of the type his faith required. Pineda-Morales v. De

Rosa, 2005 WL 1607276, at *1, *11 (D.N.J. July 6, 2005). The

court there held that the abridgment of the plaintiff’s ability to

pray established a colorable RFRA violation. Id. at *12. The

RFRA violation in Pineda-Morales, however, was of a

different type than the one here. The Defendants in the present

case pressured Mack to stop praying by disturbing his daily

prayers, as well as harassing and mocking him for his faith;

they did not enact an outright prohibition on the type of prayer

in which he sought to engage.

38

Having considered the cases Mack cites, we cannot say

they include “factually analogous” binding precedent, or

amount to a “robust consensus” of persuasive authority, that

conduct like the Defendants’ was unlawful. Peroza-Benitez,

994 F.3d at 165. Nevertheless, the facts do present a violation

of RFRA that appears “so obvious,” even in the absence of

closely analogous precedent, “that every objectively

reasonable government official facing the circumstances

would know that the [Defendants’] conduct … violate[d]

federal law when [they] acted.” Schneyder, 653 F.3d at 330

(internal quotation marks omitted). In a case like this, “broad

principle[s] of law” suffice to give fair warning to a reasonable

officer that the conduct at issue is illegal. Id. “A public

official,” after all, “does not get the benefit of ‘one liability-

free violation’ simply because the circumstance of his case is

not identical to that of a prior case.” Peroza-Benitez, 994 F.3d

at 166.

We are convinced that it should be clear to any

reasonable correctional officer that, in the absence of some

legitimate penological interest, he may not seek to prevent an

inmate from praying in accordance with his faith. Under

RFRA, an officer may not “put[] substantial pressure on an

adherent [of a religious faith] to substantially modify his

behavior and to violate his beliefs.” Mack II, 839 F.3d at 304.

Whether pressure is substantial turns on “the intensity of the

coercion applied by the government to act contrary to [one’s]

beliefs.” Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114,

1137 (10th Cir. 2013), aff’d sub nom. Burwell v. Hobby Lobby

Stores, Inc., 573 U.S. 682 (2014). Both direct and indirect

burdening of religion are prohibited. Washington v. Klem, 497

39

F.3d 272, 279 (3d Cir. 2007) (quoting Thomas v. Rev. Bd. of

Ind. Emp. Sec. Div., 450 U.S. 707, 717-18 (1981)).

Any deliberate interference with prayer is suspect,

given the crucial role that prayer – in one form or another –

plays in so many religious faiths. “Prayer unquestionably

constitutes the ‘exercise’ of religion.” Sause v. Bauer, 138 S.

Ct. 2561, 2562 (2018). The guarantee of free exercise of

religion encompasses “not only the right to harbor religious

beliefs inwardly and secretly. It does perhaps its most

important work by protecting the ability of those who hold

religious beliefs of all kinds to live out their faiths in daily life

through ‘the performance of (or abstention from) physical

acts.’” Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2421

(2022). Such acts unquestionably include a person “praying

quietly” “briefly and by himself.” Id. at 2422. The freedom to

pray is in fact integral to the free-exercise jurisprudence that

RFRA absorbed. See Engel v. Vitale, 370 U.S. 421, 434-35

(1962) (noting that among the founders were men who had

“faith in the power of prayer,” and “led the fight for adoption

of” the First Amendment to try to “put an end to governmental

control of religion and of prayer”); cf. United States v. Ballard,

322 U.S. 78, 87 (1944) (Under the Constitution, “[m]an’s

relation to his God was made no concern of the state. He was

granted the right to worship as he pleased and to answer to no

man for the verity of his religious views.”).

“[G]overnment actions intentionally discriminating

against religious exercise … serve no legitimate purpose.”

Brown v. Borough of Mahaffey, Pa., 35 F.3d 846, 850 (3d Cir.

1994). Not surprisingly, “cases which address acts … which

target religious activity” are “rare.” Id. at 849; see also Church

of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.

40

520, 523 (1993) (“The principle that government may not enact

laws that suppress religious belief or practice is so well

understood that few violations are recorded in our opinions.”).

In other words, an intentional effort “to suppress … religious

worship” for that purpose alone is plainly impermissible,

Lukumi, 508 U.S. at 540, and worship plainly includes

prayer. 19 That prohibition on suppressing prayer does not stop

at the jailhouse doors. See Cruz v. Beto, 405 U.S. 319, 322 n.2

(1972) (“[R]easonable op[p]ortunities must be afforded to all

prisoners to exercise the religious freedom guaranteed by the

First … Amendment without fear of penalty.”); Gittlemacker

v. Prasse, 428 F.2d 1, 4 (3d Cir. 1970) (“[C]ourts have not

hesitated to intervene where prison officials have unreasonably

attempted to curtail the practice of religion by prison

inmates.”).

The long-standing history and force of those general

principles lead us to conclude that, during the time at issue, it

was clearly established that a correctional officer was

19

Of course, officers do not violate RFRA if their

actions are the least restrictive means of furthering a

compelling government interest. 42 U.S.C. § 2000bb-1(b).

Additionally, in some circumstances, under the First

Amendment, the government need only show a lesser

“legitimate” interest to justify intrusions on free exercise. E.g.,

O’Lone v. Estate of Shabazz, 482 U.S. 342, 344-45, 349-50

(1987) (prison officials may not interfere with inmate prayer

unless their actions are “reasonably related to legitimate

penological interests”). But no matter the circumstance, the

government must have some proper justification for interfering

with an inmate’s prayer.

41

forbidden to pressure an inmate to forego engaging in prayer,

absent justification by a compelling government interest.

While offering no justification whatsoever for their actions, the

Defendants resist that conclusion. They instead argue that the

caselaw at the time of their actions was too unsettled to clearly

establish a violation. But their argument is based on the

erroneous presumption that their preferred framing of the facts

and inferences must be accepted. They cite a number of cases

in which district courts held that threats or harassment toward

inmates did not substantially burden religion. E.g., Brown v.

Department of Corr. Pa., 2007 WL 4322980, at *15 (W.D. Pa.

Aug. 29, 2007) (concluding officer’s “alleged mere verbal

threat” that he would put inmate in administrative custody if he

persisted in his religious practices did not impose a substantial

burden), aff’d, 265 F. App’x 107 (3d Cir. 2008). 20 Analogizing

20

See also Madison v. Kilbourne, 2006 WL 2037572,

at *4 (W.D. Va. July 18, 2006) (“allegations that certain

officers taunted [an inmate] and ate his meals in front of him

also fail to state any claim” under the First Amendment or

RLUIPA), vacated in part on other grounds, 228 F. App’x 293

(4th Cir. 2007); Mallory v. Winchester, 2006 WL 3714838, at

*2 (N.D. Ind. Dec. 12, 2006) (concluding that officers’ “rude

and hateful comments about Islam and [prisoner’s] practice of

it” were “unprofessional and irreverent” but did “not violate

either the First Amendment or RLUIPA”); Rouse v. Caruso,

2007 WL 209922, at *6 (E.D. Mich. Jan. 24, 2007) (no

RLUIPA claim against officer who “disparaged [plaintiff’s]

religious beliefs” and “harassed him based on his religious

beliefs,” because “[m]ere verbal harassment does not embody

the type of coercive pressure which amounts to a substantial

burden on religious exercise”).

42

to those cases, however, misconstrues the RFRA violation at

issue here. As previously discussed, Mack was not merely

mocked or harassed. He says that Roberts and Venslosky also

deliberately and repeatedly disrupted his attempts to complete

his daily prayers, and he stopped praying at the times required

by his faith. 21 The cases the Defendants cite may show a lack

21

We, again, reject the Dissent’s assertion that the

unlawfulness of the Defendants’ conduct “does not follow

immediately” from the legal propositions we have just

discussed. (Dissent at 4 (quoting District of Columbia v.

Wesby, 138 S. Ct. 577, 590 (2018)).) The Defendants

specifically acknowledge that pre-RFRA case law is properly

considered in determining whether their conduct violates the

clearly established religious exercise law that RFRA absorbed.

More than 35 years ago the Supreme Court made clear that

prison officials may not interfere with inmate prayer unless

their actions are “reasonably related to legitimate penological

interests[.]” O’Lone, 482 U.S. at 344-45, 349-50. Simply put,

there is no logical conundrum about whether the law permits

prison officials to wage a concerted campaign, for no

legitimate reason, to stop an inmate from praying. That has

been placed beyond reasonable debate for decades. RFRA

allows a compelling government interest to justify

impingement on religious exercise, but that does the

Defendants no good, as they offer no explanation whatsoever

for their actions. Indeed, animosity towards Muslims is the

only basis for the officers’ behavior discernible on the record

before us, which is patently not a legitimate governmental

interest, penological or otherwise. And the Defendants do not

contend it is.

The Dissent also argues that the Defendants were not

put on notice that the conduct they engaged in rose to the level

43

of settled law as to whether disparaging remarks alone are

actionable, but they shed no light on the RFRA analysis as to

deliberate interference with prayer.

of a substantial burden. As an initial matter, none of the parties

contend that the Defendants’ conduct is not a substantial

burden on Mack’s rights. We held Mack’s pro se allegations

satisfied the standard for a substantial burden at the motion to

dismiss stage. Mack II, 839 F.3d at 304. The District Court

reached the “same conclusion” based on the summary

judgment record, see Mack v. Stevens, 2018 WL 4375083, at

*5 (W.D. Pa. Sept. 13, 2018), and, as we have explained, the

Defendants do not contend the District Court got that wrong.

See supra at Section II.B.1. Given the facts as we must take

them at this stage of the proceedings, we cannot accept the

notion that there was anything unclear about whether the

Defendants could lawfully pursue a prolonged campaign to

prevent Mack from praying. The Defendants have made no

effort to show qualified immunity is appropriate on the present

facts and, so, have not discharged their burden.

Viewed in the light most favorable to Mack, the facts

are that the Defendants actually meant for their actions to be a

substantial burden on Mack’s prayers. They wanted him to

stop, and he did. Of course, their subjective intent does not

create the substantial burden. Contrary to the Dissent’s

suggestion, that is not why we raise the point. The extent of

the burden imposed is relevant to whether we are dealing with

a close case. That the Defendants set out to prevent worship

and accomplished that end is evidence of the extent of the

burden, particularly when, at the summary judgment stage, we

must view the evidence in the light most favorable to Mack.

44

The Defendants also assert that there is a “wide gap”

between their actions and those in the cases that have been

found to be “obvious” violations of law. (Answering Br. at 18-

19 (citing Taylor v. Riojas, 141 S. Ct. 52, 53-54 (2020) (per

curiam) (inmate left in a sewage-filled cell for six days); and

Hope v. Pelzer, 536 U.S. 730, 734-35, 741 (2002) (prisoner

handcuffed to hitching post, without a shirt, under the sun for

seven hours, with scant water or bathroom breaks)).) It is self-

evident, of course, that Mack’s experiences – bad as they were

– do not rise to the level of cruelty displayed in Eighth

Amendment cases, in which the nature of the violation itself

involves “cruel and unusual punishment.” U.S. CONST.

amend. VIII. Similarly, obviousness is often asserted in Fourth

Amendment cases involving the use of excessive force. E.g.,

Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (applying

obviousness standard to analyze excessive force claim); see

also El v. City of Pittsburgh, 975 F.3d 327, 341 (3d Cir. 2020)

(“We have concluded that cases [of excessive force] are

obvious, and that general standards clearly establish a right, in

extreme situations such as when lethal force is used or when a

high school teacher sexually harassed and assaulted students.”

(citations omitted)).

RFRA violations, meanwhile, are based on substantial

burdens on religion, which typically do not entail the brutality

and physical abuse on display in the worst Fourth Amendment

and Eighth Amendment cases. So, it may well be that an

“obvious” RFRA violation will involve less viscerally

abhorrent conduct than an infringement on some other

constitutional right. But that misses the point. The question is

whether “broad rules and general principles” make the

existence of the right “so manifest that it is clearly established.”

Schneyder, 653 F.3d at 330. That in turn may depend on

45

whether the violation is obvious when judged against the

particular standards applicable to the issue under examination.

And the fact that there have been “few violations” of religious

liberty involving the “rare” targeting of an individual based on

his religious practices, Lukumi, 508 U.S. at 523; Brown, 35

F.3d at 849-50, indicates that the illegality of such conduct is

generally obvious enough to be understood even without

judicial guidance. 22 Cf. Safford Unified Sch. Dist. No. 1 v.

22

The Dissent expresses two additional concerns about

our obviousness analysis that warrant a response. First, our

colleague observes that we “cite[] not a single case where

courts have found RFRA or Free Exercise violations

sufficiently ‘obvious’ to overcome qualified immunity.”

(Dissent at 5.) He does not, however, argue that the rules of

qualified immunity are different for RFRA and Free Exercise

claims than for other kinds of claims. It is well-settled that an

obvious case is just that and, consequently, needs no prior

precedent to justify the conclusion that follows. We do not

understand our colleague to be saying that some critical mass

of earlier obvious violations of a particular federal right must

be found in the case law before an obvious violation of that

right can be recognized and condemned. Were that so, of

course, there could be no obvious cases. Moreover, it would

be odd to expect much binding precedent about obvious RFRA

violations, since the Supreme Court has only recently

recognized that RFRA allows for litigants “to obtain money

damages against federal officials in their individual

capacities,” Tanzin v. Tanvir, 141 S. Ct. 486, 493 (2020), and

we are only now, in this opinion, holding that RFRA allows for

qualified immunity. In addition, as to free exercise rights more

generally, the most obvious cases will rarely arise because it is

mercifully rare that government officials so brazenly seek to

46

Redding, 557 U.S. 364, 377 (2009) (“The unconstitutionality

of outrageous conduct obviously will be unconstitutional, this

being the reason … that ‘[t]he easiest cases don’t even arise.’”

(alteration in original) (quoting K.H. v. Morgan, 914 F.2d 846,

851 (7th Cir. 1990) (Posner, J.))).

Our conclusion that it was clearly established, at the

time of the Defendants’ actions, that there was a right to pray

free of substantial, deliberate, repeated, and unjustified

suppress worship and prayer. So we are not the least surprised

that examples of obvious violations of religious exercise rights

are in short supply, and we hope that remains the case.

Second, our dissenting colleague observes that, as

reprehensible as the Defendants’ behavior may have been, it

does not “show the ‘extreme circumstances’ or ‘particularly

egregious facts’ indicative of the obvious case.” (Dissent at 5

(quoting Taylor v. Riojas, 141 S. Ct. 52, 53-54 (2020) (per

curiam).) Having already discussed the qualified immunity

standard at length, including what is required for a finding of

obviousness, it should be sufficient to note that the Supreme

Court did not say that egregiousness is a requirement for a

finding of obviousness or that the obviousness standard had

changed because of Taylor. Taylor stands for the unsurprising

conclusion that leaving an inmate in a sewage-filled cell for six

days violates the Eighth Amendment. Taylor, 141 S. Ct. at 53-

54. To say that an obvious case is also an egregious one is not

to say that only egregious cases present obvious violations.

And, while being denied the right to pray may not seem an

egregious deprivation to everyone, for those who are devout it

may be very egregious indeed. A wound need not be physical

to be serious.

47

disruption by prison officials leads us to vacate the grant of

summary judgment. But it does not foreclose the Defendants’

qualified immunity defense from being raised at trial, since the

Defendants have only conceded Mack’s version of events for

purposes of pressing their summary judgment motion. See

Reedy v. Evanson, 615 F.3d 197, 224 n.38 (3d Cir. 2010) (“Our

decision on qualified immunity … is solely that it is not

warranted at the summary judgment stage in this case.

Qualified immunity remains a viable defense, though its

applicability cannot be finally determined until after the facts

have been sorted out at trial.”). The Defendants may still seek

qualified immunity at trial, based on the facts proven then.

III. CONCLUSION

For the foregoing reasons, we will vacate the District

Court’s grant of summary judgment and remand for further

proceedings consistent with this opinion.

48

HARDIMAN, Circuit Judge, dissenting.

The Supreme Court has repeatedly admonished courts not

to define rights too broadly when determining whether law was

“clearly established” for purposes of qualified immunity. In all

but the rare case, the Court has also required factually

analogous precedent that would render the violation beyond

debate. Because those imperatives require us to affirm the

judgment of the District Court, I respectfully dissent.

I

I agree with my colleagues on many points. Though a

qualified immunity defense is available under the Religious

Freedom Restoration Act (RFRA), we should not “disturb the

District Court’s conclusion that the Defendants unlawfully

infringed Mack’s religious liberty.” Maj. Op. 28. Mack’s

prayers are certainly religious exercise. Maj. Op. 27. And

Mack’s definition of the right Defendants violated is “far too

broad and generic” for qualified immunity purposes. Maj. Op.

30.

I disagree with my colleagues that Defendants and the

District Court framed the right too narrowly. The Supreme

Court’s demanding standard requires the right to be defined

with “a high degree of specificity.” D.C. v. Wesby, 138 S. Ct.

577, 590 (2018) (cleaned up). Even more importantly for

Mack’s appeal, it also requires the right to be tailored to “the

specific context of the case.” Tolan v. Cotton, 572 U.S. 650,

657 (2014) (quoting Brosseau v. Haugen, 543 U.S. 194, 198

(2004)).

Mack described Defendants’ disruptions of his prayer

while he worked at the prison commissary as making “noises

1

and jokes,” engaging in “loud talking,” and “kicking boxes”

around. App. 132, 156. He also testified he could “always

make [his] prayer up at the end of the day,” which “still [was]

consistent with [his] religion,” App. 124, and with his imam’s

advice. App. 178–79. Relying on Mack’s version of events, the

District Court properly defined the right with specificity as the

right to be free from “indirect, mostly verbal, conduct that

causes a person to voluntarily cease exercising a tenet of his

faith.” Mack v. Stevens, 2021 WL 2982060, at *5 (W.D. Pa.

July 15, 2021). This framing hews closely to Mack’s

deposition testimony, though it appropriately diverges from

Mack’s briefing on appeal. See Maj. Op. 32 n.15.

The right articulated in the majority opinion—“the right to

pray free of substantial, deliberate, repeated, and unjustified

disruption by prison officials”—is too general. Maj. Op. 35. It

omits two important facts from Mack’s testimony: (1) he

voluntarily ceased praying at work; and (2) he believed doing

so was consistent with his religious obligations. Without these

facts, the right is not tailored to the “specific context” of

Mack’s case. Tolan, 572 U.S. at 657 (cleaned up); see also

Kemp v. Liebel, 877 F.3d 346, 352 (7th Cir. 2017) (finding “the

right of prisoners not to have their religious practices interfered

with and prevented absent a legitimate penological basis” too

broad). The majority opinion concedes as much when it states

that its generalized right suffices because this is an obvious

case. Maj. Op. 32–33 n.15. For reasons I explain below, it is

not.

II

Even accepting the majority’s articulation of the right at

issue, I would not find it clearly established here. The majority

claims we “take a ‘broad view’ of what makes a right clearly

2

established, which can be satisfied ‘even without a precise

factual correspondence between the case at issue and a

previous case.’” Maj. Op. 37 (quoting Peroza-Benitez v. Smith,

994 F.3d 157, 166 (3d Cir. 2021)). Although the Supreme

Court recognizes there need not be “a case directly on point,”

it still requires the right to “have a sufficiently clear foundation

in then-existing precedent” such that it is “settled law.” Wesby,

138 S. Ct. at 589–90 (cleaned up). And “[t]he precedent must

be clear enough that every reasonable official would interpret

it to establish the particular rule the plaintiff seeks to apply.”

Id. at 590. This is an extremely high bar. Following our

decision in Peroza-Benitez, the Supreme Court reemphasized

that, absent the obvious case, a lack of sufficient factual

similarity entitles an officer to qualified immunity. Rivas-

Villegas v. Cortesluna, 142 S. Ct. 4, 8–9 (2021) (per curiam).

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. So “this case presents a unique set of facts and

circumstances,” which “alone” provides “an important

indication . . . that [Defendants’] conduct did not violate a

‘clearly established’ right.” White v. Pauly, 580 U.S. 73, 80

(2017) (per curiam) (cleaned up).

The majority sidesteps the absence of on point caselaw by

deeming the RFRA violation “so obvious” that every

objectively reasonable officer would know that Defendants’

conduct violated federal law. Maj. Op. 39 (quoting Schneyder

v. Smith, 653 F.3d 313, 330 (3d Cir. 2011). I agree with my

colleagues that the obvious case does not demand factually

analogous precedent, but it still requires that the law be

“sufficiently clear” such that “every reasonable official would

3

understand that what he is doing is unlawful.” Wesby, 138 S.

Ct. at 589 (cleaned up). The majority identifies general RFRA

and Free Exercise principles—that an official may not put

substantial pressure on an individual to substantially modify

his behavior and violate his religious beliefs, that both direct

and indirect burdens on religion are prohibited, and so on—as

evidence that Defendants violated clearly established law. Maj.

Op. 39–41. But the unlawfulness of Defendants’ conduct in

this case “does not follow immediately” from these legal

propositions. Wesby, 138 S. Ct. at 590 (quoting Anderson v.

Creighton, 483 U.S. 635, 641 (1987)). As the majority points

out, whether pressure is “substantial” turns on the “intensity of

the coercion applied,” Maj. Op. 39, which is a fact-intensive

inquiry. See Adkins v. Kaspar, 393 F.3d 559, 571 (5th Cir.

2004) (explaining whether government action imposes a

substantial burden on religious exercise is a “case-by-case,

fact-specific inquiry”). While every reasonable officer would

know that purposefully disrupting an inmate’s ability to pray is

wrong, he would not know whether the level of disruption here

imposed a substantial burden on religion. So this case is not

the “rare” obvious one. Wesby, 138 S. Ct. at 590.

That Defendants acted out of anti-Muslim animus and

“actually meant for their actions to be a substantial burden on

Mack’s prayers,” Maj. Op. 44 n.21, doesn’t show that they

violated clearly established law, either. Defendants cannot

impose a “substantial burden” under RFRA merely by willing

it—“whether a burden is substantial under RFRA is a question

of law.” Real Alts., Inc. v. Sec’y Dep’t of Health & Hum. Servs.,

867 F.3d 338, 356 (3d Cir. 2017) (cleaned up). And while an

inquiry into a defendant’s subjective state of mind may be

appropriate “where such state of mind is an essential element

of the underlying civil rights claim,” Maj. Op. 36 n.17, the

4

RFRA substantial burden inquiry is “objective.” Real Alts.,

Inc., 867 F.3d at 356.

The majority opinion cites not a single case where courts

have found RFRA or Free Exercise violations sufficiently

“obvious” to overcome qualified immunity. My colleagues

claim it “would be odd to expect much binding precedent about

obvious RFRA violations” because the Supreme Court only

recently recognized a cause of action under RFRA for damages

against officials in their individual capacity. Maj. Op. 46 n.22.

But damages “have always been available under § 1983 for

clearly established violations of the First Amendment.” Tanzin

v. Tanvir, 141 S. Ct. 486, 492 (2020). And the majority relies

on pre-RFRA Free Exercise caselaw to argue that the violation

here was clearly established. Maj. Op. 43 n.21. So while no

“critical mass of earlier obvious violations” is required, Maj.

Op. 46 n.22, the absence of any obvious religious exercise

violations suggests we should hesitate to find one here.

Finally, the majority dismisses the stark differences

between this appeal and other “obvious” cases by positing that

obvious RFRA violations will “involve less viscerally

abhorrent conduct” than infringement of other constitutional

rights. Maj. Op. 45. But even accepting that proposition,

Mack’s case still does not clear the obviousness hurdle. Mack

failed to show the “extreme circumstances” or “particularly

egregious facts” indicative of the obvious case. Taylor v.

Riojas, 141 S. Ct. 52, 53–54 (2020) (per curiam). That reality

does not excuse Defendants’ reprehensible behavior. It means

only that, as of 2009, it was not “obvious” that disrupting

Mack’s prayers in the prison workplace by making loud noises

and jokes substantially burdened his religion.

* * *

5

For the reasons stated, I would affirm the District Court’s

summary judgment for Defendants on qualified immunity

grounds.

6