Jan. 5 (UPI) -- A Muslim man is asking an appeals court to reverse a ruling to throw out his lawsuit that alleged his constitutional rights were violated when he was forced to say his prayers inside a cell next to a toilet at a Wisconsin detention facility.
In his appeal to the 7th U.S. Circuit Court of Appeals, Mohamed Salah Mohamed A Emad says his faith requires that he be in a state of ritual cleanliness before praying five times a day, which was impossible in the vicinity of a toilet.
Jail staff members said he was prohibited from performing the obligatory religious duty called salah in open spaces in his pod, including the library and the gym, his suit alleges.
Jail staff also prohibited him from gathering outside his cell with other Muslim detainees for Jumu'ah, a sacred Friday afternoon ritual and the most important communal prayer of the week, according to Emad. A jail policy bans group activities led by inmates, and when program specialists could not find an imam to conduct Islamic services for free, they opted not to hire one, the suit states.
The reason given for the denials was security concerns, but Emad -- a stateless Palestinian who was held at the Dodge County Detention Facility in Juneau, Wis., for 14 months after being arrested by U.S. Immigration and Customs Enforcement agents for overstaying his visa -- says Christians were allowed to participate in unsupervised group prayer and Bible study led by inmates in the library and a dayroom.
Emad filed suit in April 2019 in U.S. District Court in Milwaukee alleging, among other claims, that the jail's prayer restrictions and treatment of Muslims violated his First Amendment right to free exercise of his religion and his 14th Amendment right to equal protection of the law.
The suit also alleged violations of the Religious Land Use and Institutionalized Persons Act and the Religious Freedom Restoration Act. The RLUIPA prohibits regulations that impose a "substantial burden" on the religious exercise of persons confined to institutions. The RFRA bars the government from substantially burdening a person's exercise of religion except in furtherance of a compelling governmental interest and only if an action is the least restrictive means of furthering that interest.
The lawsuit named jail staff members and administrators and an ICE official as defendants and sought a declaration that the jail policies at issue are in violation of Emad's rights; an order barring the defendants from subjecting him to the unlawful policies; and monetary damages.
Emad entered the United States in 1994 on a student visa and has lived in Milwaukee for more than 25 years, according to the suit. He was born in Saudi Arabia but does not hold any citizenship from that country because his parents settled there in 1948 as refugees after fleeing war in Palestine.
Based on his marriage to his now-ex-wife, Emad, who worked in a Chinese restaurant, applied for permanent legal residence. The two had been married for six years and together for more than 16 years but separated before the application was adjudicated and Emad was not granted legal status, the suit says.
Emad, who has no criminal record, was arrested on March 12, 2018, and placed in the Dodge County jail, which has a contract with ICE to hold immigration detainees. He was denied bond and detained until his May 13, 2019, release on an order of supervision.
An immigration judge had issued an order on Oct. 17, 2018, that Emad be deported but he remains in Wisconsin, his immigration attorney, Marc Christopher, said. Stateless people generally are unable to be deported because no country recognizes them as citizens, and neither Saudi Arabia nor Israel will accept him, the suit says.
Different rules for Christians
Attorneys with the Roderick and Solange MacArthur Justice Center at the Northwestern Pritzker School of Law in Chicago, who are representing Emad, counter the policy is not rationally connected to a legitimate security concern because it is not consistently applied.
The appeal says the inmate handbook specifies personal worship is allowed in cells or beside a detainee's bunk but is not permitted in the dayroom areas. However, officers allowed Christian detainees to say grace together over meals or silently pray, but Emad's Islamic form of prayer, which involves prostrating oneself, or touching all limbs and forehead to the ground, was prohibited.
"If Christians can gather for Bible study in the dayroom and library without negatively affecting jail operations, there's no reason to think Muslims cannot do the same and gather for their brief prayer ritual," the appeal says.
There has been no religious programming for Muslims for at least the past 24 years, according to the appeal. Vanessa del Valle, a clinical associate professor of law at the MacArthur Justice Center, said the jail offered eight weekly religious programs at the time Emad was there -- five Christian, two non-denominational that were essentially for Christians and one interfaith that was led by a Catholic nun.
But the defendants say in a court brief the undisputed material facts show they did not "unreasonably restrict" Emad's constitutional rights to practice his religion.
"Mr. Emad alleges that it is forbidden for a Muslim to pray next to a toilet, but he does not cite any admissible, authenticated Islamic law that supports this allegation," the brief says. "Moreover, it is unclear why the dayroom would be any cleaner than his jail cell, which he certainly has the ability and authority to clean according to his own standards."
The jail does not offer Islamic religious programming for a secular reason -- the defendants were unable to locate any Muslim leaders who were willing to provide services on a volunteer basis, according to the brief.
Without an outside religious leader, detainees could falsely claim that they were leading a religious group in order to hide their efforts to organize criminal or gang-related activity, the defendants say in the brief. In addition, allowing inmate-led Jumu'ah would lead to similar requests from other groups, which would put a strain on guards and jail resources, they argue.
Last spring, U.S. District Judge Lynn Adelman granted a motion by the defendants to enter a judgment in their favor, leading to the appeal to the 7th Circuit.
"Plaintiff argues that defendants should have made additional efforts to find a volunteer, but he points to no evidence that the efforts made to find a Muslim volunteer were any different than the efforts made to find volunteers for other religions," Adelman said in his May 3 ruling. "Nor does he point to any evidence from which a jury could infer that the failure to find a volunteer imam was motivated by a desire to adversely affect Muslims."
The judge also ruled the defendants are entitled to qualified immunity, which shields them from liability for monetary damages if their actions do not violate "clearly established constitutional or statutory rights." Emad has not identified a 7th Circuit or Supreme Court case establishing an inmate's right to congregational services or inmate-led services, Adelman said.
If Emad wins his appeal, the case would go back to district court for trial and if he gets a favorable verdict there, he would seek monetary damages. A win also would help other detainees.
"One of the goals of bringing a lawsuit is not only to seek justice for Mr. Emad, but to also change Dodge County's detention facility policies and practices related to providing religious programming for people who are not of the Christian faith," del Valle said.
Three nonprofits have filed friend-of-the-court briefs urging the appeals court to reverse the judge's ruling.
The Rutherford Institute, a civil liberties organization headquartered in Charlottesville, Va., says the 7th Circuit should "make clear that qualified immunity does not protect prison officials who brazenly disregard inmates' clearly established constitutional rights for want of case law perfectly matching the facts presented to the court."
"To overcome qualified immunity, courts often require plaintiffs to present judicial precedent that establishes the exact constitutional violations at issue have previously been found to be violations (as the district court did here)," the brief says. "This creates an unending cycle where a violation is always protected by qualified immunity unless the exact same facts were previously found to be an exception to the rule."
Prison officials had every reason to know they were denying Emad's constitutional rights, noting prayer is "doubly protected" by the First Amendment as speech and religious practice, the brief says.
Muslim Advocates also dispute Adelman's ruling that no reasonable jail official could have known that denying Muslims the ability to pray individually or in groups in the dayroom while allowing Christians to do so was a violation of Emad's rights.
"A holding in favor of plaintiff in this case is critical to protecting religious freedom in part because anti-Muslim animus is common in detention centers across the country," the Washington-based advocacy group says in its brief.
The Becket Fund for Religious Liberty says American prisons have accommodated congregate worship outside cells for centuries and prisoners have led those religious exercises. In Richmond, Va., a death row inmate was permitted to hold prayer meetings with his fellow inmates and 25 people prayed with him on the morning of his 1883 execution.
The brief, written by the Notre Dame Religious Liberty Clinic on behalf of Becket, cites examples dating back to the 1700s and says religious exercise was not limited to the early nation's prevailing Protestant tradition.
"In 1880, for example, Jewish prisoners at Sing Sing were given unleavened bread in celebration of Passover, and in 1891, an early Jewish-American newspaper reported on the celebration of Passover by 45 prisoners at a penitentiary in New York - including with wine, which was normally strictly prohibited," the brief says.