Howard Friedman, Religion Clause

In an important decision last week, a New York federal district court judge extended the Bivens damage remedy for violation of constitutional rights to deprivations of First Amendment free exercise rights. Turkmen v. Ashcroft, (ED NY, Jan. 15, 2013), grew out of federal government investigative actions in the wake of the 9/11 attacks.  Arab and Muslim non-citizens who had violated the immigration laws were arrested and placed in harsh confinement conditions for several months to encourage their cooperation. According to the court, as part of the operation, officers at the Metropolitan Detention Center and the Passaic Jail interfered with Muslim detainees’ ability to observe their religion:

[W]hen the Detainees requested copies of the Koran, officers delayed for weeks or months before providing them; the MDC and the Passaic Jail failed to provide food that conformed to the Halal diet, despite the Detainees’ requests for such food; the MDC had no clock visible to the MDC Detainees, and officers regularly refused to tell them the time of day or the date so they could conform to daily Islam prayer requirements and observe Ramadan; and officers constantly interrupted the Detainees’ prayers by banging on their cell doors, yelling and making noise, screaming derogatory anti-Muslim comments, videotaping them, handing out hygiene supplies, and/or telling them to “shut the fuck up” while they were trying to pray.

The court held that even though the Supreme Court in the Iqbal case expressed skepticism on whether Bivens should be available for free exercise violations, it would extend Bivens because otherwise there is no remedy available to plaintiffs for the free exercise violations:

[P]laintiffs are not complaining simply about facially neutral BOP policies that substantially burden their free exercise of religion. If they were, I might conclude that their “full access to remedial mechanisms established by the BOP, including suits in federal court for injunctive relief . . . and grievances filed through BOP’s Administrative Remedy Program … provides sufficiently meaningful redress to preclude the implication of a Bivens damages remedy. But the plaintiffs allege a series of acts that were directed only at them (and the class of detainees they seek to represent) with the specific intent to deny them the right to practice their religion… The precise purpose of the Bivens damages remedy is to deter individual officers from engaging in such unconstitutional conduct.

The court also allowed plaintiffs to move forward with their Bivens equal protection claim against MDC officials charging implementation of policies specifically targeting Arabs and Muslims.

The Center for Constitutional Rights has background and links to all the primary source documents in the long running case that was filed as a class action.