Deputy Has Qualified Immunity In Suit Claiming His Failure to Intervene in Establishment Clause Violation

 In White v. Goforth, (6th Cir., May 18, 2023), the U.S. 6th Circuit Court of Appeals held that Sheriff's Deputy Jacob Goforth had qualified immunity in a suit against him for failing to intervene in conduct by Daniel Wilkey, an on-duty officer who is also a preacher. Wilkey called Goforth asking him to witness a baptism at a nearby lake.  The court explained:

Unbeknownst to Goforth, Wilkey had stopped Shandle Riley earlier that evening and found her in possession of marijuana. Wilkey told Riley that if she agreed to let him baptize her, he would issue her a citation and not take her to jail. She agreed and followed Wilkey in her car to a nearby lake. When Goforth arrived, he saw what appeared to be a consensual, if improper, situation.... Critically, however, Goforth never learned of Wilkey’s improper quid pro quo.....

Reversing the Tennessee district court's denial of qualified immunity, the appeals court said in part:

Riley asserts that Wilkey’s coerced baptism of her violated the Establishment Clause. That may well be so. Coercion “was among the foremost hallmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment.”... Threatening jail time for refusing Christian baptism seems an easy fit for this category. But even if Wilkey violated Riley’s constitutional rights, Wilkey is not before us; only Goforth is. There is nothing in the record indicating that Goforth knew of Wilkey’s quid pro quo....

The district court thought that, even absent coercion, it was clearly established that an officer in Goforth’s position would be “liable for failing to intervene if a reasonable observer” would have perceived a governmental endorsement of religion, as defined by the Lemon test and its progeny....We cannot agree. First, Kennedy clarified that the Supreme Court had “long ago abandoned Lemon and its endorsement test offshoot.” ... If that is so, then Goforth could not have had a clearly established duty to stop Wilkey from violating it....

Moreover, we can find no case that had ever found an officer liable where his fault was not his own endorsement of religion, but his failure to intervene in someone else’s.

Anti-Muslim Facebook Postings Are Subject To Pickering Balancing Test

In Hernandez v. City of Phoenix, (9th Cir., Aug. 5, 2022), the U.S. 9th Circuit Court of Appeals remanded to the district court a case in which the Phoenix police department had disciplined an employee for social media posts he made disparaging Muslims.  The district court had held that the posts did not address matters of public concern and so were not subject to the balancing test of Pickering v. Board of Education  that protects as free speech some statements by public employees which are objectionable to the public employer. The Court of Appeals disagreed, saying in part:

It is true that each of Hernandez’s posts expressed hostility toward, and sought to denigrate or mock, a major religious faith and its adherents. The Supreme Court has made clear, however, that “[t]he inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.”...

Having concluded that Hernandez’s Facebook posts constitute speech on matters of public concern at the first step of the Pickering balancing test, we would ordinarily proceed to the next step and assess whether the Phoenix Police Department has shown an adequate justification for punishing Hernandez’s otherwise protected speech. We cannot do so here, however, because the district court dismissed Hernandez’s First Amendment retaliation claim at the motion-to-dismiss stage.... Although it seems likely that Hernandez’s posts could impede the performance of his job duties and interfere with the Phoenix Police Department’s ability to effectively carry out its mission, no evidence of the actual or potential disruptive impact caused by Hernandez’s posts is properly before us at this stage of the proceedings....

In remanding the case, we do not mean to suggest that the Department will face a particularly onerous burden to justify disciplining Hernandez for his posts, given the comparatively low value of his speech.

Reuters reports on the decision.

11th Circuit Hears Oral Arguments In City Prayer Vigil Case

 Yesterday, the U.S. 11th Circuit Court of Appeals heard oral arguments (audio of full arguments) in Rojas v. City of Ocala, Florida. In the case, , a Florida federal district court held that the City of Ocala, Florida and its police chief violated the Establishment Clause when they organized and promoted a prayer vigil in response to a shooting spree plaguing the city. (See prior posting.) Fox35 reports on the case ahead of the oral arguments.

Deputy Sheriff May Be Liable For Failing To Stop Fellow Officer From Carrying Out Coercive Baptism

In Riley v. Hamilton County Government, (ED TN, April 7, 2022), a Tennessee federal district court refused to dismiss an Establishment Clause, as well as a 4th Amendment, claim against Deputy Sheriff Jacob Goforth for his role in Deputy Sheriff Daniel Wilkey's baptism of Shandle Riley. Wilkey had pulled Riley over for a traffic stop and discovered that she had marijuana in her car. After searching Riley and her car, Wilkey began to talk with Riley about religion, asking her if she had been baptized. According to the court:

Wilkey told her “God [was] talking to him” and assured her that, if she got baptized, he would only write her a citation and she would be free to go about her business.... According to Riley, Wilkey also indicated that he would speak at court on her behalf if she agreed.... Riley decided to go along with this plan because she“[did not] want to go to jail.” ... She also “thought [Wilkey] was a God-fearing, church-like man who saw something . . . in [her], that God talked to him,” and testified that “it felt good to believe that for a minute.”

Wilkey asked another deputy on duty, Jacob Goforth, to witness his baptism of Riley. According to the court: 

any reasonable officer would have recognized that coerced participation in a Christian baptism—an overtly religious act with no secular purpose—was unlawful.... There are genuine disputes of material fact concerning whether Riley was coerced into the baptism, whether she would have faced harsher penalties had she refused to be baptized, and whether Goforth should have known that Riley was being coerced. This is enough to preclude summary judgment on this issue....

Goforth had fair warning that he had a duty to intervene to stop constitutional violations of this nature. And a reasonable jury could conclude that Goforth had both notice of the violation and an opportunity to stop the baptism. Accordingly, Goforth is not entitled to summary judgment on Riley’s First Amendment claim....

The court also held that that Goforth was not entitled to qualified immunity on Riley's claim of an unreasonable seizure.

Police Officer Who Prayed Outside Abortion Clinic Sues Over Suspension From Duty

An officer in the Louisville, Kentucky police department this week filed suit in a Kentucky federal district court seeking damages for the Department's four-month suspension of him. The suspension was in effect during an extended investigation of the officer's praying outside an abortion clinic while in uniform, but before he went on duty for the day. He was ultimately cleared of any violation of rules.  The complaint (full text) in Schrenger v. Shields, (WD KY, filed 10/4/2021) alleges violations of the 1st and 14th amendments as well as of Title VII, and state civil rights laws. It also alleges a claim for intentional infliction of emotional distress. WDRB News, reporting on the lawsuit, says:

EMW staff said the officer intimidated patients and medical staff while wearing his uniform and gun.

Surveillance video from the clinic showed Schrenger in a marked police cruiser. He marched outside of the clinic for approximately 45 minutes, at one point holding a sign that read "pray to end abortion."

10th Circuit Dismisses Objections To Attempted Search of Church

 In Aguilera v. City of Colorado Springs, (10th Cir., Nov. 18, 2020), the U.S. 10th Circuit Court of Appeals affirmed the dismissal of a civil rights claim brought by the High Priestess/ Property Manager of Green Faith Ministry who objected to an attempt by a police officer and fire marshals to inspect the ministry's building. Officers apparently suspected marijuana usage or occupancy standard violations. The court rejected plaintiff's complaint that one officer told her to "praise the Lord." The court said in part:

Aguilera’s amended complaint does not allege facts indicating that an objective observer would view Officer Vargason’s purpose in saying “Praise the Lord” as an official endorsement of religion.

The court also rejected plaintiff's free exercise claim, concluding:

Aguilera has failed to allege that any defendant burdened her exercise of religious beliefs or practices.

Lawsuit Claims Deputy Coerced Driver To Be Baptized

The Chattanooga Times Free Press reports on an unusual lawsuit filed this week by a woman against two Hamilton County (TN) sheriff's deputies in a Tennessee state trial court.  The lawsuit, asking for $11 million in damages, alleges that Deputy Daniel Wilkey initiated an unjustified traffic stop of plaintiff, and then conducted an intrusive pat down search of her for methamphetamine.  He discovered only a marijuana cigarette butt. Then, according to the paper:

After searching the woman's vehicle, he asked her if she had ever been "saved" and whether she believed in Jesus Christ, the lawsuit states. He told her that God was "talking to him during the vehicle search" and that he "felt the Lord wanted him to baptize [her]."

Wilkey then told her to go inside the home she was visiting and grab two towels for a baptism.... He said if she let him baptize her, he would issue her only a criminal citation for the possession of marijuana.....

When the woman returned outside, Wilkey told her to drive her own vehicle and follow him..... [T]hey eventually arrived at a boat ramp at Soddy Lake.... At that point, another deputy — Jacob Goforth — arrived.... Wilkey told the woman that Goforth was there because, "in order for a baptism to be valid, a witness must 'attest' to the ritual."

Wilkey then "stripped nearly naked".... He then led her into nearly waist-deep water, placed one hand on her back and the other on her breasts and completely submerged her under the water....

Church Sues Over Cannabis Raid

Redheaded Blackbelt reported yesterday:

A church called Redwood Spiritual Healing Ministry filed a lawsuit Thursday, June 27 against the County of Humboldt and the California Department of Fish and Wildlife (CDFW) alleging violations of its 1st Amendment right to religious freedom as well as due process violations when a multiple agency task force destroyed cannabis as well as private property during the execution of a search warrant. The case further alleges that the County of Humboldt may have withheld relevant information from a judge by having CDFW file the Affidavit for the search warrant without informing the judge that the property in question may be a church under the law.

The full text of the complaint in Redwoods Spiritual Healing Ministry v. Humboldt County, California, (CA Super. Ct., filed 6/27/2019) embedded at the end of the news report on the lawsuit.

Street Preacher's Suit Against Police Survives Dismissal Motion

In Craft v. Wright, (D NM, Sept. 26, 2018), a New Mexico federal district court refused to dismiss a street preacher's 1st and 4th Amendment claims against Hobbs, New Mexico police officials. The court concluded that plaintiff Al-Rashaad Craft was arrested without probable cause for assault and battery and disorderly conduct after an incident described as follows:

[Craft] was standing in the public square ... preaching a religious sermon, recording himself while doing so.... Susan Stone, began yelling at him, using obscenities, and waving a lighter only inches from Craft’s face and in front of the camera that Craft had set up to record his sermon.... Craft ignored the woman, but when he started to read from his Bible, Stone struck Craft in the face with his Bible.... In response, Craft pushed the woman away, and she lost her balance and fell.... Stone got up and continued to shout obscenities at Craft, walking in circles around him, smoking, and waving her lighter; she appeared intoxicated, which Craft later reported to the police.

Police Misinformation To Parents Did Not Violate Their Religious Exercise Rights

Estate of Manolios v. Wickersham, (ED MI, June 13, 2018), is a suit against Macomb County, Michigan sheriff and police officers alleging numerous constitutional violations in their investigation of a fatal car accident.  The primary allegation was that authorities wrongfully identified Jonathan Manolios as the driver in order to protect the true driver who was a family friend of one of the investigating police officers. Among  the numerous allegations in the lawsuit was the following:

After the accident, Jonathan Manolios’ parents asked Defendants where their son’s body was found in relation to the crash scene. According to Plaintiffs, they sought this information because their religious beliefs required them to memorialize the location. Plaintiffs allege that Defendant Kennedy initially refused to provide this information, but then inaccurately identified the location...

The court dismissed this claim, saying:

... [T]he most that can be said of Kennedy’s alleged misconduct is that it failed to aid Plaintiffs in the practice of their religion. Plaintiffs did not know where Jonathon’s body was found after the accident regardless of what Kennedy did or did not do. As such, Plaintiffs could not have followed their religious obligation to memorialize that location even if Kennedy never provided the incorrect location.

In short, Plaintiffs identify no clearly establish law that would inform a reasonable official that the type of conduct alleged here violated Plaintiffs’ right to freely exercise their religion. For these reasons, the Court holds that Plaintiffs fail to state a viable First Amendment violation claim.

Cert. Petition Filed In Suit Over Police Investigation Interference With Prayer

A petition for certiorari (full text) was filed with the U.S. Supreme Court last week in Sause v. Bauer, (cert. filed 11/17/2017).  In the case, the U.S. 10th Circuit Court of Appeals dismissed on qualified immunity grounds a suit for damages alleging that police who were investigating a noise complaint violated plaintiff's 1st Amendment rights when an officer who had come to her home ordered her to get up and stop praying. (See prior posting.)  First Liberty issued a press release announcing the filing of the petition for review.

10th Circuit: Qualified Immunity Protects Officer Who Told Suspect To Stop Praying

In Sause v. Bauer, (10th Cir., June 20, 2017), the U.S. 10th Circuit Court of Appeals dismissed on qualified immunity grounds a suit for damages alleging that police who were investigating a noise complaint violated plaintiff's 1st Amendment rights when an officer who had come to her home ordered her to get up and stop praying. The court said:

It certainly wouldn’t be obvious to a reasonable officer that, in the midst of a legitimate investigation, the First Amendment would prohibit him or her from ordering the subject of that investigation to stand up and direct his or her attention to the officer—even if the subject of the investigation is involved in religiously-motivated conduct at the time, and even if what the officers say or do immediately after issuing that command does nothing to further their investigation.

The court also held that plaintiff lacks standing to sue for injunctive relief. Liberty Counsel issued a press release reacting to the decision.