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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0798%3A6

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2018

## Text

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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)

II
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

V

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

Ee

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)

2

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

3

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

4

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,

5

“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.

6

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

7

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.

8

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.

9

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

10

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.

1]

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.”).

12

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

13

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

14

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.”).

15

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

16

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!

OFFICE OF THE

ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
scott.keller@oag.texas.gov
(512) 936-1700

DECEMBER 2017

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0798%3A6. Public record. Not legal advice.