Amicus Curiae Brief — Sause v. Bauer, 138 S. Ct. 2561 (2018) (No. 17-742)

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In the Supreme Court of the United States

MARY ANNE SAUSE, PETITIONER

v~.

TIMOTHY J. BAUER, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE STATE OF TEXAS AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

KEN PAXTON Scott A. KELLER

Attorney General of Texas _ Solicitor General

Counsel of Record

JEFFREY C. MATEER

First Assistant Attorney ERIC WHITE

General Assistant Solicitor General

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

scott.keller@oag.texas.gov

(512) 936-1700

TABLE OF CONTENTS

Page

Interest Of AMICUS CUTIAC............0cc-ccseresersseseesesereees 1

Summary of the argument ..........c-sccssesseeesseeeeeerees 2

ROI ceccncestttinpnimnnntesmnnnmimniemmnensees 3

I. In Rare Circumstances, A Right Is So

Clearly Violated That Qualified Immun-

ity Should Be Denied Even Without A

Judicial Precedent Previously Address-

ing Comparable, Egregious Facts. ................. 3

Il. It Is Clearly Established That An Officer

Must, At A Minimum, Have Some Valid

Law Enforcement Purpose Before Or-

dering A Person To Stop Praying. ................. 6

A. A reasonable officer would have

understood that the constitutional

right to pray is clearly established........ 7

B. A reasonable officer would have

understood that stopping an

individual from praying, without a

legitimate purpose for doing so,

impermissibly burdens a constitu-

I cenecstcscascesnesesncnseceszensenemetnases 11

CN ccctarsitastcntercsnpstniembicinissciintecsantitiananeinias 16

(1)

TABLE OF AUTHORITIES

Cases

Anderson v. Creighton,

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Ashcroft v. al-Kidd,

gt | | SCE

Bell v. Wolfish,

BEE TEs Be Cie PR icin sscccsecsensneccceszssersens

Brosseau v. Haugen,

ee Be OD srkctesiccnvcnrsstesnacseesevnse

Butz v. Economou,

GD Ty BF FD cccternccccscccssicsccessescseses

Capitol Square Review & Advisory Bd. v.

Pinette, 515 U.S. 753 (1995) ................0

Carey v. Brown,

CE Bs ae CD ciccrsndsctciveticnnsesiecenenee

City .« Cty. of San Francisco v. Sheehan,

Be ee le. Fe i ieatcictnsccccsciccnssenecess

Cty. of Sacramento v. Lewis,

BE Ey Ce CI crrececcrccnctccncenssonecnesonse

Cruz v. Beto,

405 U.S. 319 (1972) (per curiam) ...........

Davis v. Scherer,

ED Fh BE Ce cccetrictstiscnstesctceresicseies

Ill

Everson v. Bd. of Ed. of Ewing Twp.,

Be eB Gree Pcnccescensssrctessssssnsevees

Filarsky v. Delia,

RP SF I winecnssacnnssnecsasss

Ghailani v. Sessions,

859 F.3d 1295 (10th Cir. 2017).........

Hadi v. Horn,

830 F.2d 779 (7th Cir. 1987).............

Harlow v. Fitzgerald,

457 U.S. 800 (1982)................0eeee0

Hill v. Crum,

727 F.3d 312 (4th Cir. 2013).............

Hope v. Pelzer,

DS TB, FO GIO oesecncicvccccccesecoscones

Johnson v. Brown,

581 F. App’x 777 (11th Cir. 2014)

insta nicnscssaneniecintpnapesimecvone’

Johnson v. Jones,

516 U.S. 304 (1995)...............cc00ss000

Kyllo v. United States,

Be Py ee Ge crcresenncscssosesevcesccnses

Mack v. Warden Loretto FCI,

839 F.3d 386 (3d Cir. 2016) ..............

O’Lone v. Estate of Shabazz,

482 U.S. 342 (1987)................scccseeeeee

Pearson v. Callahan,

SES UB. BES CRO] 0.00 cv ccrscoscecesocescvees

Reichle v. Howards,

Re II cenccncstnesscosnssssscsocsencsen

Rhodes v. Chapman,

oS EE rere

Silverman v. United States,

ee Es WI Re cnccesesecesssncssoscnvasenssosees

Stephens v. DeGiovanni,

852 F.3d 1298 (11th Cir. 2017)...............

Thomas v. Gunter,

32 F.3d 1258 (8th Cir. 1994)............0000

Thomas v. Kaven,

765 F.3d 1183 (10th Cir. 2014)................

Town of Greece v. Galloway,

BG Ts Se BS Ge nc vecnsicccsevccsescsvtvensse

Turner v. Safley,

ee Per i ces nccsncnccsenscsnseseseesesiocns

United States v. Lanier,

Se Fis Se Ge Perrcnsccinenescessenseseceasoneees

W. Va. State Bd. of Educ. v. Barnette,

BE ars Ge CD visccsececenicesccsnecenscecsesees

Wallace v. Jaffree,

Se I sevcccineis revctntasiinicennevanien

Wisconsin v. Yoder,

ee TED ciercnsinsinntsnnenceecnntecansie

Constitutional Provisions and Rule

te es CII & epacencceriacinumisnesecsisunsicecensens

Se I, SII, BW cctrnsecespnsnsouceventdersnsansenscns

Ss es I tae Oe IO cov escnttcsdccdeesctncececseveenedvice

Be eh, Ci eich eis chcotapceiniesncnbecdntvebeuntiiaiatenssaneuesen

Other Authorities

I Max Farrand, The Records of the Federal

Convention of 1787 (New Haven: Yale

James Madison, Memorial and

Remonstrance Against Religious

Assessments (June 20, 1785), reprinted

in II The Writings of James Madison

(Gaillard Hunt ed., The Knickerbocker

SPIE SEIT cines tnsdiouaindeseccendiatiisinebideniiediarinnress

Lt. Steven R. Obert, Public Prayer in the

Navy, 53 Naval L. Rev. 321 (2006).............

Proclamation No. 7672, 68 Fed. Reg. 23,829

EI GEIL TIE ccnscenessndusisesminnetdansunmansonsns

George Washington, First Inaugural

Address in the City of New York (Apr. 30,

1789), in 101st Congress, Inaugural

Addresses of the Presidents of the United

States, S. Doc. 101-10 (1989) .................0068+

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eoveponsions 1

INTEREST OF AMICUS CURIAE'

Amicus curiae is the State of Texas. Amicus has a

strong interest in the proper application of the qualified-

immunity doctrine and is well positioned to comment on

the application of that doctrine. The State of Texas is

intimately familiar with the crucial role that qualified

immunity plays in protecting law enforcement officers

from “harassment, distraction, and liability when they

perform their duties reasonably.” Pearson v. Callahan,

555 U.S. 223, 231 (2009). It is imperative that

“insubstantial claims against government officials be

resolved prior to discovery.” Jd.

At the same time, amicus recognizes that on the other

side of the doctrine’s delicate “balance” lies the very

weighty “interest{] in vindication of [its] citizens’

constitutional rights.” Davis v. Scherer, 468 U.S. 183, 195

(1984). Qualified immunity, of course, does not shield

officers from violating citizens’ clearly established

rights—that is, when the right in question is “sufficiently

clear that every reasonable official would have

understood that what he is doing violates that right.”

Reichle v. Howards, 566 U.S. 658, 664 (2012) (quotations

and brackets omitted).

The pleadings in this case allege substantial

interference with petitioner’s constitutional right to pray

in her own home—for no legitimate investigatory

' Pursuant to Supreme Court Rule 37.2, no counsel for any

party authored this brief in whole or in part, and no person or

entity other than amicus contributed monetarily to its prepa-

ration or submission. Amicus provided timely notice of its in-

tent to file this brief, and the parties consented to this filing.

(1)

purpose. See, eg., Pet. App. 19a (Tymkovich, J.,

concurring) (“If true, Ms. Sause’s allegations are

inconsistent with any legitimate law enforcement

purpose capable of justifying a continuing police

intrusion in her home.”); accord Pet. App. 3a-4a, 17a.

Such an action strikes at the heart of the Free Exercise

Clause and is a clear constitutional violation.

SUMMARY OF ARGUMENT

The Tenth Circuit erred in affirming the dismissal of

petitioner’s complaint with prejudice.

Qualified immunity serves an important function in

protecting officers from suits alleging conduct that does

not violate clearly established rights. Concomitantly, in

the rare instances where those clearly established rights

are infringed, qualified immunity must necessarily give

way. In still rarer circumstances, the alleged conduct is

so obviously a clear violation of constitutional rights that

there need not be a closely analogous judicial precedent

saying as much. On the facts as pleaded by petitioner,

this is one of those rare cases.

The application of the correct qualified immunity

standard is particularly important in this case, given the

right alleged to have been infringed. Petitioner,

confronted with officers in her home and a situation that

had “quickly devolved,” Pet. App. 18a (Tymkovich, J.,

concurring), began to pray. The officers then stopped her

from praying. Pet. App. 4a. By taking solace in prayer,

she was invoking a time-honored tradition and religious

practice deserving of the highest respect.

Construing the alleged facts in the light most

favorable to petitioner, there was no legitimate law

enforcement purpose at stake when the officers ordered

petitioner to stop praying. Under these facts as pleaded,

it was thus clearly established that the law enforcement

officers could not interrupt her private prayer: It was

clearly established that her right to pray was protected

by the Free Exercise Clause, that an officer’s order to

stop praying burdens that right, and that an officer

needs at least a legitimate governmental reason to

justify burdening that right. Existing precedent from the

prison context—an environment that affords far less

protection of individual rights than one’s own home—

was sufficient to place this constitutional question

“beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741

(2011). This gave the officers fair warning that they could

not impede an individual’s religious practice without a

legitimate reason for doing so.

ARGUMENT

I. In Rare Circumstances, A Right Is So Clearly

Violated That Qualified Immunity Should Be

Denied Even Without A Judicial Precedent

Previously Addressing Comparable, Egregious

Facts.

Amicus unequivocally supports the doctrine of

qualified immunity. That doctrine serves the vital

purpose of “[e)nsuring that those who serve the

government do so with the decisiveness and the

judgment required by the public good.” Filarsky v.

Delia, 566 U.S. 377, 390 (2012). It protects public officials

“not simply from liability, but also from standing trial.”

Johnson v. Jones, 515 U.S. 304, 312 (1995). The doctrine

recognizes that allowing frivolous claims, or those not

grounded in clearly established law, to proceed would do

harm “not only to the defendant officials, but to society

as a whole.” Harlow v. Fitzgerald, 457 U.S. 800, 814

(1982). Given the doctrine’s “importan[ce],” id. at 808, it

is both commendable and unsurprising that this Court

“often corrects lower courts when they wrongly subject

individual officers” to the threat of liability. City & Cty.

of San Francisco v. Sheehan, 135 S. Ct. 1765, 1774 n.3

(2015).

But there are limits to qualified immunity. It

represents “the best attainable accommodation of

competing values,” Harlow, 457 U.S. at 814—the “need

to vindicate individual rights, on the one hand, and the

equally vital need, on the other, that .. . officials

exercising discretion will be unafraid to take vigorous

action to protect the public interest,” Butz v. Economou,

438 U.S. 478, 524 (1978). When the alleged unlawfulness

is apparent “in the light of pre-existing law”—that is,

when the “contours of the right” are “sufficiently clear

that a reasonable official would understand that what he

is doing violates that right”—officers cannot expect to

have their unlawful actions shielded by qualified

immunity. Anderson v. Creighton, 483 U.S. 635, 640

(1987).

To be sure, preexisting law must speak “with obvious

clarity to the specific conduct in question.” United States

v. Lanier, 520 U.S. 259, 271 (1997). This often means that

the plaintiff must identify a case or cases in which “the

very action in question has previously been held

unlawful.” Hope v. Pelzer, 536 U.S. 730, 739 (2002). But

in rare circumstances where officials’ conduct strikes at

the heart of a clearly protected constitutional right,

“officials can still be on notice that their conduct violates

established law” even when the particular factual

allegations are somewhat “novel.” /d. at 741. This is one

such rare circumstance.

Taking the allegations in Ms. Sause’s complaint as

true, no reasonable officer could have believed that he

had the right to stop her from exercising her

constitutional right to pray (particularly in the comfort

of her own home) without any legitimate investigatory

purpose. Contra Pet. App. 8a (holding that the officers

could reasonably have believed that they were allowed

“to order the individual to stop engaging in religiously-

motivated conduct so that they can... . briefly harass her

before . . . issuing a citation [unrelated to the prayer and

to their initial investigation |”). Although no case appears

to have dealt with these precise facts, the contours of

petitioner’s legal right were clearly spelled out to put the

officers on notice. It is true that no other court has had

occasion to address the novel facts pleaded here—where

an officer orders an individual in her own home to stop

praying merely to harass her long after any legitimate

purpose of the investigation had concluded. But that does

not render this any less an “obvious case” of improper

police action that strikes at the heart of a clearly

established constitutional right. Brosseau v. Haugen,

543 U.S. 194, 199 (2004); accord Hope, 536 U.S. at 738;

Lanier, 520 U.S. at 271.

II. It Is Clearly Established That An Officer Must, At

A Minimum, Have Some Valid Law Enforcement

Purpose Before Ordering A Person To Stop

Praying.

At issue here is the fundamental right of an individual

to pray in her own home, unrestricted by government

officials whose legitimate investigation had already run

its course under the facts as pleaded.’ It is clearly

established that an officer must have at least some valid

justification before interfering with an individual’s free

exercise of religion. Under the facts pleaded by

petitioner, any reasonable basis the officers might have

had to stop Ms. Sause from exercising her constitutional

right to pray had ceased by the time they directed her to

stop praying. See, e.g., Pet. App. 9a (observing that the

officers’ actions “immediately after issuing [the

command to stop praying did] nothing to further their

investigation”); Pet. App. 17a (Tymkovich, J.,

concurring) (explaining that “an initially justified police

encounter” was “prolonged beyond the time reasonably

required to complete the legitimate police objective

justifying the encounter” and that “the officers’ actions

[were] not reasonably related in scope to that legitimate

objective”).*

* As pleaded, the facts of this case may very well also establish

a Fourth Amendment violation. See Pet. App. 17a-19a (Tym-

kovich, J., concurring). But that fact does not negate the sep-

arate First Amendment violation, and petitioner as the plain-

tiff was entitled to raise or omit whatever claims she wished.

* In contrast, if an individual were to use her right to pray ac-

tively to interfere with a legitimate ongoing investigation by

Nevertheless, the court of appeals granted qualified

immunity on the basis that Ms. Sause’s factual

allegations were neither “obviously egregious,” Pet.

App. 9a, nor reflected in a closely analogous case, Pet.

App. 8a. The court erred in doing so.

To defeat qualified immunity, this Court does “not

require a case directly on point, but existing precedent

must have placed the statutory or constitutional question

beyond debate.” al-Kidd, 563 U.S. at 741. This is one of

those rare cases where, even if the issue has not

presented itself in highly similar factual circumstances,

well-established precedent has _ sstill placed the

constitutional question beyond debate.

At the time this case arose, it was clearly established

that the right to pray was protected by the Free Exercise

Clause, and any reasonable officer would have known

that ordering someone to stop praying without any

investigatory justification (see Complaint at 8, Sauce v.

Bauer, 2016 WL 3387469 (D. Kan. 2016) (15-cv-9633),

ECF No. 1; see also Pet. App. 4a, 18a) was a clear

constitutional violation.

A. A reasonable officer would have understood

that the constitutional right to pray is clearly

established.

It is clearly established that the right to pray is

protected by the Free Exercise Clause. See, e.g., Wallace

ignoring questions or orders reasonably related to that inves-

tigation, the result would be different. See infra Part I1.B (dis-

cussing the standard for justifying the burden). Those are not

the facts alleged here. See Pet. App. 3a-4a, 17a, 19a.

v. Jaffree, 472 U.S. 38, 59 (1985) (referring to a student’s

ability to pray personally as a “right”); accord, e.g.,

Capitol Square Review & Advisory Bd. v. Pinette, 515

U.S. 753, 760 (1995) (“[ Private religious speech, far from

being a First Amendment orphan, is as fully protected

under the Free Speech Clause as secular private

expression.”); O’Lone v. Estate of Shabazz, 482 U.S. 342,

348 (1987) (recognizing that one’s ability to pray in

accord with religious dictates implicates constitutional

rights and requiring, in the prison context, that any

burden on that right was reasonably related to legitimate

penological interests).

The court of appeals correctly assumed that the Free

Exercise Clause clearly establishes the right to pray. See

Pet. App. 6a-7a. And there are few freedoms so

enshrined as the right to practice one’s religion as one

sees fit. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 214

(1972) (“{The Constitution] specifically and firmly fixed

the right to free exercise of religious beliefs.”); W. Va.

State Bd. of Educ. v. Barnette, 319 U.S. 624, 645 (1943)

(Murphy, J., concurring) (“[The] freedom to worship

one’s Maker according to the dictates of one’s conscience

[is] a right which the Constitution specifically shelters.”).

Given the importance of religious freedom, this Court

has recognized that “(t]he values underlying [the First

Amendment] provisions relating to religion have been

zealously protected, sometimes even at the expense of

other interests of admittedly high social importance.”

Yoder, 406 U.S. at 214. And of all the acts that could be

considered religious exercise, it is hard to conceive of a

more quintessentially religious act than an individual

praying.

Prayer is inextricably linked to the very founding of

this Nation. When interpreting the scope of the Religion

Clauses, this Court has observed that “the provisions of

the First Amendment, in the drafting and adoption of

which Madison and Jefferson played such leading roles,

had the same objective and were intended to provide the

same protection against governmental intrusion on

religious liberty as [Jefferson's 1785 Virginia Bill for

Religious Liberty].” Everson v. Bd. of Ed. of Ewing

Twp., 330 U.S. 1, 18 (1947). That Virginia law defined

religion as “the duty which we owe to our Creator, and

the manner of discharging it.” Va. Const. art. I, § 16. In

the debates surrounding the passage of the Virginia Bill

for Religious Liberty, James Madison emphasized that

even those opposed to the civil establishment of religion,

like him, were nevertheless “earnestly praying” that

lawmakers “may establish more firmly the liberties, the

prosperity, and the Happiness of the Commonwealth.”

James Madison, Memorial and Remonstrance Against

Religious Assessments (June 20, 1785), reprinted in II

The Writings of James Madison 191 (Gaillard Hunt ed.,

The Knickerbocker Press 1901); see Everson, 330 U.S. at

71-72 (including as an appendix Madison’s Memorial and

Remonstrance).

In fact, at a crucial moment during the Constitutional

Convention of 1787, when tensions were high and

differences seemed intractable, Ben Franklin implored

his fellow delegates to look to God to provide them the

strength to see through their important task: “I

therefore beg leave to move—that henceforth prayers

imploring the assistance of Heaven, and its blessings on

our deliberations, be held in this Assembly every

morning before we proceed to business.” I Max Farrand,

The Records of the Federal Convention of 1787 452 (New

Haven: Yale Univ. Press 1911) (James Madison’s Notes

on the Convention for June 28, 1787). The Convention

heeded Franklin’s call; from then on, its daily activities

opened with a moment of prayer. /d. This tradition

continues in large part to this day. See, e.g., Town of

Greece v. Galloway, 134 8. Ct. 1811, 1818 (2014).

Presidents, too, have long turned to prayer to guide

the country. In the Nation’s very first inaugural address,

President Washington asked all to give “fervent

supplications to that Almighty Being who rules over the

universe, who presides in the councils of nations, and

whose providential aids can supply every human defect.”

George Washington, First Inaugural Address in the

City of New York (Apr. 30, 1789), in 101st Congress,

Inaugural Addresses of the Presidents of the United

States, S. Doc. 101-10, at 2 (1989). Inaugurations have

included public prayer ever since. See Lt. Steven R.

Obert, Public Prayer in the Navy, 53 Naval L. Rev. 321,

341 n.137 (2006).

In sum, this is “a Nation whose people turn to prayer

in times of our most heartfelt sorrow and our moments

of greatest joy.” Proclamation No. 7672, 68 Fed. Reg.

23,829 (Apr. 30, 2003). A reasonable officer therefore

would have known that the right to pray in one’s own

home in this Nation was clearly established.

B. A reasonable officer would have understood

that stopping an individual from praying, with-

out a legitimate purpose for doing so, impermis-

sibly burdens a constitutional right.

It is likewise clearly established that the government

may not infringe on rights protected by the Free

Exercise Clause absent a legitimate, non-arbitrary

interest. Many of the cases discussing the need for a

legitimate governmental interest to prevent the free

exercise of religion have arisen in the prison context. See

Pet. 25-27. It is, thankfully, still “novel” (Hope, 536 U.S.

at 741) to have officers intrude into people’s homes and

infringe on their free exercise rights, as was alleged

here. But if a prisoner would have had a right to pray

because there was no countervailing legitimate

governmental interest to prevent the prayer, then a non-

incarcerated individual not subject to arrest (and in her

own home at that) clearly has such a right as well.

Incarceration, after all, necessarily § entails

“conditions [that] are restrictive and even harsh... [as]

part of the penalty that criminal offenders pay for their

offenses against society.” Rhodes v. Chapman, 452 U.S.

337, 347 (1981). Because of the need to maintain order,

“prison officials must be accorded latitude in the

administration of prison affairs” and “prisoners

necessarily are subject to appropriate rules and

regulations.” Cruz v. Beto, 405 U.S. 319, 321 (1972) (per

curiam); see Bell v. Wolfish, 441 U.S. 520, 557 (1979)

(“[G]iven the realities of institutional confinement, any

reasonable expectation of privacy that a detainee

retained necessarily would be of a diminished scope.”).

But even in the prison environment with necessarily

curtailed rights, this Court has held that “when a prison

regulation impinges on inmates’ constitutional rights,

the regulation is valid [only] if it is reasonably related to

legitimate penological interests.” Turner v. Safley, 482

U.S. 78, 89 (1987). As a result, such a prison “regulation

cannot be sustained where the logical connection

between the regulation and the asserted goal is so

remote as to render the policy arbitrary or irrational.”

Id. at 89-90. Furthermore, the _ underlying

“governmental objective must be a legitimate and

neutral one.” /d. at 90.

The well-established existence of this “reasonably

related to [a] legitimate ... interest{]” (id. at 89)

standard should have given the officers here reasonable

notice at least of this baseline for unacceptable conduct

in an individual’s home. It is hard to imagine an

environment accorded greater protection—far more

than a prison cell—than the privacy of a person’s home.

The sanctity of one’s home has deep roots in the common

law. It is the “prototypical” area of “protective privacy.”

Kyllo v. United States, 533 U.S. 27, 34 (2001). There is

little more important than “the right of a man to retreat

into his own home and there be free from unreasonable

government intrusion.” Silverman v. United States, 365

U.S. 505, 511 (1961); accord Carey v. Brown, 447 U.S.

455, 471 (1980) (“Preserving the sanctity of the home, the

one retreat to which men and women can repair to escape

from the tribulations of their daily pursuits, is surely an

important value.”).

Accordingly, if the government must have a

legitimate penological interest to infringe the free

exercise rights of a convicted criminal in prison, then law

enforcement interacting with a presumptively innocent

individual in her own home obviously needed, at a

minimum, a legitimate law enforcement interest to

infringe her free exercise rights. That much should have

been clear to the officers, regardless of whether the

Tenth Circuit or any other court had confronted these

precise pleaded facts before.

Once cases from the prison context are appropriately

taken into consideration, there is a weight of circuit

authority clearly establishing that an order to stop

praying without a legitimate governmental justification

unconstitutionally burdens the free exercise of religion.

The Tenth Circuit itself has had occasion to address

the required justification for burdening prayer in the

prison setting. In Ghailani v. Sessione, the plaintiff

alleged that prison policies hindered his ability to pray

Jumu’ah, a Muslim prayer practice. 859 F.3d 1295, 1304

(10th Cir. 2017). The court observed that “a prisoner

alleging a violation of his First Amendment rights must

include sufficient facts to indicate the plausibility that

the actions of which he complains were not reasonably

related to legitimate penological interests.” Jd. (internal

quotations omitted). Ultimately, the court upheld the

dismissal of the prisoner’s First Amendment claims, but

only because he failed to plead the lack of a legitimate

penological interest. See id.

Decisions from other courts of appeals—even if they

do not control the qualified-immunity inquiry because

this case arose from the Tenth Circuit‘—further support

just how obvious it is that the government must have a

legitimate justification to impede an individual’s prayer.

In Mack v. Warden Loretto FCI, for instance, the Third

Circuit held that qualified immunity was unwarranted

because it first needed to be determined whether there

was a reasonable penological interest justifying a

substantial burden on the plaintiff prisoner’s religious

exercise. 839 F.3d 386, 304 (3d Cir. 2016). The prisoner

there had alleged that an officer’s anti-Muslim

harassment “caused him to stop praying.” /d.

The Eleventh Circuit in Johnson v. Brown reached a

similar conclusion. 581 F. App’x 777 (11th Cir. 2014) (per

curiam). There, the plaintiff “alleged two specific

instances in which prison officials interrupted [his]

*In the Tenth Circuit, a right is clearly established “when a

Supreme Court or Tenth Circuit decision is on point, or if the

clearly established weight of authority from other courts

shows that the right must be as the plaintiff maintains.”

Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014). Other

cireuits take different approaches. See, e.g., Stephens v. De-

Giovanni, 852 F.3d 1298, 1316 n.14 (11th Cir. 2017) (“In this

circuit, the law can be clearly established for qualified immun-

ity purposes only by decisions of the U.S. Supreme Court,

Eleventh Circuit Court of Appeals, or the highest court of the

state where the case arose.”); Hill v. Crum, 727 F.3d 312, 322

(4th Cir. 2013) (“In determining whether a right was clearly

established at the time of the claimed violation, courts in this

circuit ordinarily need not look beyond the decisions of the Su-

preme Court, this court of appeals, and ‘..e highest court of

the state in which the cases arose... . If a right is recognized

in some other circuit, but not in this one, an official] will ordi-

narily retain the immunity defense.”).

prayers and ordered him to stop praying and leave.” /d.

at 779. Deeming the plaintiffs free exercise claim

“plausible on its face,” the court held that the district

court clearly erred by granting qualified immunity

because “the facts surrounding the defendants’

justification for their alleged interference with

[plaintiff's] religious practices must still be developed

before a determination can be made as to whether the

defendants acted reasonably” under the circumstances.

Id. at 781; see also Thomas v. Gunter, 32 F.3d 1258, 1260-

61 (8th Cir. 1994) (holding that because a material issue

of fact existed as to whether refusal to allow inmates

daily access to a sweat lodge for prayer was reasonably

related to a legitimate penological objective, the district

court erred in granting prison officials qualified

immunity); Hadi v. Horn, 830 F.2d 779, 784 (7th Cir.

1987) (applying the test of “whether a valid connection

exists between the regulation and a _ legitimate

government interest” where plaintiff prisoners alleged

that their First Amendment rights had been violated by

the defendant’s cancellation of their prayer service).

It is thus crystal clear that there must, at a minimum,

be some “reasonable justification in the service of a

legitimate governmental objective” to burden the free

exercise of religion. Cty. of Sacramento v. Lewis, 523

U.S. 833, 846 (1998). Otherwise, the rights specifically

protected in the First Amendment would be rendered a

nullity.

Here, however, there was no justification for the

officers to order Ms. Sause to stop praying, under the

facts alleged. In such circumstances, a reasonable officer

would know that the Free Exercise Clause clearly

establishes that the officer cannot stop an individual

from praying.

CONCLUSION

The Court should grant the petition for a writ of

certiorari.

Respectfully submitted.

KEN PAXTON

Attorney General of Texas

JEFFREY C. MATEER

First Assistant

Attorney General

Scott A. KELLER

Solicitor General

Counsel of Record

ERIc A. WHITE

Assistant Solicitor Genera!