Charles Mack v. John Yost ( 2023 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 21-2472
_____________
CHARLES MACK,
Appellant
v.
JOHN YOST, Warden; TIM KUHN, Associate Warden;
JEFFREY STEPHENS, Trust Fund Officer;
SAMUEL VENSLOSKY, Correctional officer, sued in their
individual capacities; DOUG ROBERTS, Correctional
Officer, sued in their individual capacities
_______________
On Appeal from the United States District Court
For the Western District of Pennsylvania
(D.C. No. 3-10-cv-00264)
District Judge: Honorable Kim R. Gibson
_______________
Argued on
September 7, 2022
Before: JORDAN, HARDIMAN, and SMITH, Circuit
Judges
(Filed: March 21, 2023)
_______________
Sarah M. Czypinski
John M. Hagan
Jessica Moran [ARGUED]
K&L Gates
210 Sixth Avenue
Pittsburgh, PA 15222
Counsel for Appellant
Christopher E. Kemmitt
Michael Skocpol [ARGUED]
NAACP Legal Defense & Educational Fund
700 14th Street, NW – Ste. 600
Washington, DC 20005
Adam Murphy
Samuel Spital
NAACP Legal Defense & Educational Fund
40 Rector Street – 5th FL.
New York, NY 10006
Samuel Weiss
Rights Behind Bars
416 Florida Avenue, NW - #26152
Washington, DC 20001
Counsel for Amicus Rights Behind Bars and
NAACP Legal Defense & Education Fun
2
Laura S. Irwin
Office of United States Attorney
700 Grant Street – Suite 4000
Pittsburgh, PA 15219
Courtney Dixon [ARGUED]
United State Department of Justice
Civil Division, Appellate Staff
950 Pennsylvania Avenue NW
Washington, DC 20530
Counsel for Appellee
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
“Among the most inestimable of our blessings,” said
Thomas Jefferson, is that “of liberty to worship our creator in
the way we think most agreeable to his will … .” 1 That
bedrock principle, enshrined in the Free Exercise Clause of the
First Amendment, has since been reinforced through federal
laws that guarantee prisoners the freedom to practice their
faiths. Charles Mack, a former federal inmate and a devout
Muslim, brought suit to vindicate that guarantee.
1
Letter from Thomas Jefferson to John Thomas (Nov.
18, 1807), https://rotunda.
upress.virginia.edu/founders/default.xqy?keys=FOEA-print-
04-01-02-6807 (cleaned up).
3
When Mack was incarcerated, he worked at the prison
commissary, where two supervising prison guards singled him
out for harassment because of his Muslim faith. Most
significantly, the evidence as it now stands shows that, when
Mack would go to the back of the commissary to pray during
shift breaks, the guards would follow him and deliberately
interfere with his prayers by making noises, talking loudly, and
kicking boxes. Fearing retaliation if he continued to pray at
work, Mack eventually stopped doing so, but the guards
nevertheless engineered his termination from his commissary
job. He then sued.
The resulting case has been before us three times
already, and, at this point, Mack’s lone surviving claim arises
under the Religious Freedom Restoration Act of 1993
(“RFRA”), 42 U.S.C. §§ 2000bb et seq. The guards sought
summary judgment on that claim, but the District Court
initially denied the motion, holding that a jury could
reasonably find the guards had, in violation of RFRA,
substantially burdened Mack’s exercise of religion. The
guards later moved for summary judgment again, this time on
the theory that they are entitled to qualified immunity. On that
argument, the District Court sided with them. It held that
qualified immunity was warranted because no clearly
established caselaw would have put a reasonable person on
notice of the illegality of the guards’ actions. Mack has again
appealed.
We agree with Mack that granting summary judgment
was wrong. While, as a matter of law, qualified immunity can
be asserted as a defense under RFRA, the officers have not –
at least on this record – met their burden of establishing that
4
defense. Framed in the light most favorable to Mack, evidence
of the RFRA violation here involved significant, deliberate,
repeated, and unjustified interference by prison officials with
Mack’s ability to pray as required by his faith. Based on those
facts, which are undisputed for purposes of summary
judgment, the officers are not entitled to qualified immunity.
But if different facts come out at trial, the officers may again
raise qualified immunity. Because affording the guards
qualified immunity is unwarranted at this stage, we will vacate
and remand for further proceedings.
I. BACKGROUND
A. Factual Background 2
Mack is a practicing Muslim and a former inmate at the
federal correctional institution in Loretto, Pennsylvania.
During his incarceration, he worked as a paid employee in the
prison’s commissary between May and October 2009. He
would stock the shelves and fill inmates’ orders by collecting
commissary items. Mack was supervised by two correctional
2
The following facts are based primarily on Mack’s
deposition testimony. No one has pointed to any evidence,
such as testimony, affidavits, video footage, or documents, that
would disprove Mack’s version of events. While, in the
District Court, the guards “den[ied] that the events [Mack
described in his testimony] actually occurred” (J.A. at 9) –
again, without any supporting evidence – they now appear to
concede the truthfulness of his testimony, at least for purposes
of summary judgment.
5
officers, Douglas Roberts and Samuel Venslosky, who
oversaw the commissary workers and handled sales.
Central to Mack’s observance of his Muslim faith is his
obligation to pray five times a day. Those five daily prayers,
each of which takes approximately five minutes, are supposed
to be done at prescribed times. An imam provided Mack and
other Muslim inmates with a prayer schedule tailored to their
location in western Pennsylvania so that they knew exactly
when to pray each day. Although the imam advised Mack that
it was acceptable to catch up on his prayers at the end of the
day if he was unable to pray on schedule, he was nonetheless
expected to adhere to the prescribed times whenever feasible.
On Fridays, Mack was also supposed to attend, with other
Muslim inmates, a special prayer service known as Jumu’ah.
When he prayed, Mack typically used a prayer rug. He could,
in accordance with his faith, pray from wherever he was
located in the prison, so long as he faced east when doing so. 3
Because of his religious commitments, Mack was
afforded some accommodations while working at the
commissary. He was excused from handling pork products 4
3
We understand Mack’s testimony about facing east to
be a reference to the requirement of Islam that prayers “be
offered toward the Qiblah, which is the direction to the Kabah,
the holy shrine in Mecca.” Sharp v. Johnson, 669 F.3d 144,
147 n.3 (3d Cir. 2012).
4
As noted earlier in this litigation, “practicing Muslims
do not handle pork.” Mack v. Warden Loretto FCI (Mack II),
839 F.3d 286, 291 (3d Cir. 2016); see also Williams v. Bitner,
455 F.3d 186, 194 (3d Cir. 2006) (holding prison officials were
6
and was allowed to leave work for the Jumu’ah prayer service.
Although prison rules did not permit him to return to his cell to
pray while on the job, those policies did not prohibit his
praying at the commissary. Mack therefore prayed “[a]s much
as [he] could” at work. (J.A. at 134-35.) He typically prayed
in a back corner of the commissary where there was space for
him to do so during shift breaks.
Most guards let Mack pray without incident. But,
absent any written guidance from the prison on inmates’ rights
of worship, Mack perceived his ability to practice his faith as
depending on the goodwill of the individual guards. The
guards at Loretto were aware of his faith, both because he
regularly wore a religious head covering known as a kufi and
because the prison chaplain kept a list of all the inmates who
were practicing Muslims. Mack tried to stay mindful of the
guards’ attitudes toward Islam and sought to avoid
“inconveniencing” them. (J.A. at 125.) He believed that if one
of them was hostile to his faith, and he crossed that guard by
praying in front of him, “the negativity [was] going to come.”
(J.A. at 125, 129.) Were that to happen, Mack worried, it could
result in the guard finding some reason to discipline him, even
if no legitimate reason existed, and he could get put “[i]n the
not entitled to qualified immunity because it was clearly
established that “prison officials must respect and
accommodate, when practicable, a Muslim inmate’s religious
beliefs regarding prohibitions on the handling of pork”). We
have acknowledged that restriction derives, at least in part,
from the following statement in the Koran: “He has forbidden
you ... the flesh of swine.” Bitner, 455 F.3d at 187 (quoting
The Koran, Part II, 70:173 n. 210).
7
hole” (i.e., in solitary confinement). (J.A. at 125, 163-64.)
That fear of retaliation, Mack says, made him especially wary
of giving the guards any basis to write him up.
The “negativity” that Mack foresaw became a reality
when his job brought him into contact with Roberts and
Venslosky. As he perceived it – and as other inmates told him
– they were “out to get [him] because [he] was a Muslim,” and
they singled him out for disrespect and harassment
accordingly. (J.A. at 206.) Although their actions were
initially limited to some untoward “stares” and “looks,” they
began more “direct[ly]” confronting him as time went on. (J.A.
at 204-05.)
That “direct” confrontation was, for a while, limited to
“snide remarks” mocking Mack’s adherence to Islam. (J.A. at
137.) For instance, Roberts repeatedly told Mack that he didn’t
like him and specified, “I don’t like Muslims.” (J.A. at 202-
04.) Similarly, Venslosky told other inmates that he disliked
Mack because he was Muslim. Venslosky also “sarcastically
asked Mack whether Muslim was a religion [sic].” (J.A. at
293.) In early October of 2009, things went “downhill” when
Roberts said to Mack: “There is no good Muslim but a dead
Muslim.” (J.A. at 159-161.) While Roberts was disparaging
Mack, Venslosky would often sit back and grin, “egging him
on” and expressing what Mack saw as tacit approval of
Roberts’s conduct. (J.A. at 173-74.)
Of primary significance here, and in addition to the
verbal harassment, Roberts and Venslosky would interfere
with Mack’s efforts to pray during his commissary shifts.
Mack sometimes delayed his prayers so that he could avoid any
“foolishness” from them while he prayed. (J.A. at 136.) As he
8
viewed the situation, the two of them had “indicate[d] … that
they [were] going to make this [situation as] difficult as
possible because of [his] religion,” so there was no use in
exposing himself to further “abuse.” (J.A. at 136.)
Nevertheless, he did sometimes pray at work, and Roberts and
Venslosky started coming back to the corner of the commissary
when he did, even though they had “[n]o reason to be over
there.” (J.A. at 156-57.) They would “[i]nterrupt” Mack by
making noises, telling jokes, speaking loudly, and even kicking
the boxes that Mack was praying behind. (J.A. at 132-34, 156.)
Mack was supposed to be “concentrating on praying,”
according to the tenets of his faith, but he could not do so
because the officers “purposely” talked and made noises “just
because they kn[e]w [he was]” there praying. (J.A. at 132.)
His perception of the guards’ behavior was backed up by other
inmates who told him that Roberts and Venslosky “were trying
to interrupt [his] prayers.” (J.A. at 157-58.)
Further harassment occurred toward the end of Mack’s
time at the commissary. One Friday, as Mack left work for the
Jumu’ah prayer service, Roberts surreptitiously put a sticker on
Mack’s back. It said “I love pork bacon.” When Mack later
confronted Roberts about the prank, Roberts did not dispute
what he had done and told Mack, “You are not going to be here
long,” which Mack understood as a promise that he would lose
his commissary job. (J.A. at 174.)
Around that time, Mack decided to stop praying at the
commissary. He believed Roberts and Venslosky “didn’t want
to see” him praying, and, “after everything that was going on[,]
only a fool would still try to be in their face and let[] them have
any kind of ammunition to come at [him.]” (J.A. at 177-78.)
Mack confided his predicament to an imam, who told him that
9
he “shouldn’t even try to pray” at the commissary at the times
required by his faith and should instead wait to catch up on his
prayers after his shift had ended. (J.A. at 178-79.) Mack
heeded that advice and ceased praying at the commissary
altogether.
On October 21, 2009, less than two weeks after the
sticker-on-the-back incident, Mack was fired from his
commissary job. Venslosky, who carried out the termination,
explained that Mack had violated the prohibition on bringing
another inmate’s shopping slip into the commissary, which was
a fireable offense. 5 Mack denied the accusation and still does,
which he describes as a “mere pretext” to justify his being fired
“for seeking to practice the basic tenets of his Islamic faith
through prayer while working in the commissary.” (J.A. at
290.)
B. Procedural Background
This is the fourth time this case has come to our Court.
Mack’s lawsuit began in October 2010, when he filed a pro se
complaint against Roberts, Venslosky, and other Bureau of
Prison employees, alleging what we later construed to be
causes of action under Bivens v. Six Unknown Named Agents
of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), for
First and Eighth Amendment violations, as well as a claim
under the Religious Land Use and Institutionalized Persons
5
According to Mack, prison rules provide that an
inmate may only submit his order at the commissary by
handing in his slip when the commissary is open and operating.
Giving a slip to a worker ahead of time is prohibited.
10
Act of 2000 (“RLUIPA”), 42 U.S.C. §§ 2000cc et seq. Mack
v. Yost (Mack I), 427 F. App’x 70, 71 (3d Cir. 2011) (per
curiam). The District Court screened the complaint and
summarily dismissed it, but we reversed, holding that Mack
had alleged enough to merit a chance to amend his complaint.
Id. at 71-74.
Mack then filed an amended complaint, asserting what
the District Court took to be First Amendment retaliation and
Fifth Amendment Equal Protection claims under Bivens and a
claim under RLUIPA. Mack v. Yost, 979 F. Supp. 2d 639, 646,
649 (W.D. Pa. 2013). The defendants moved to dismiss, and
the Court granted their motion. Id. at 644, 652. As relevant
here, the District Court ruled that federal prisoners asserting
claims like Mack’s could sue only under RFRA, not RLUIPA.
Id. at 650. And under RFRA, the Court held, Mack failed to
allege a substantial burden on his religious exercise since he
was not “forced … to choose between following his religion
and forfeiting benefits” or “pressured … to modify his
religious behavior.” Id. at 650-51. Similarly, even if the claim
was construed as one under the Free Exercise Clause, the Court
said, Mack’s allegations were inadequate because he did not
claim that the defendants “prevent[ed] [him] from exercising
his religious beliefs” by, for instance, “den[ying] him the
opportunity to pray.” Id. at 651-52.
When Mack again appealed, we affirmed in part and
vacated in part. Mack v. Warden Loretto FCI (Mack II), 839
F.3d 286, 291 (3d Cir. 2016). We agreed with the dismissal of
the Free Exercise and Equal Protection claims, but we revived
the First Amendment retaliation claim, holding that such a
Bivens claim was cognizable, adequately alleged, and, at the
pleading stage, not barred by qualified immunity. Id. at 291,
11
295-301. We also vacated the dismissal of the RFRA claim,
holding that Mack had sufficiently pled that the defendants’
actions had substantially burdened his exercise of religion. Id.
at 301, 304. We noted that a burden can be “substantial,”
triggering heightened scrutiny under RFRA, “even if it
involves indirect coercion to betray one’s religious beliefs.”
Id. (citing Lyng v. Nw. Indian Cemetery Protective Ass’n, 485
U.S. 439, 450 (1988)). That standard was plausibly met, we
held, by Mack’s allegations that “Roberts’ anti-Muslim
harassment and … Venslosky’s tacit approval created a hostile
work environment” that put “indirect pressure … on Mack” “to
stop praying at work.” Id.Back at the District Court, the remaining defendants –
Venslosky, Roberts, and one other guard – moved for summary
judgment on the two surviving claims, but the Court denied
their motion. See Mack v. Stevens, 2018 WL 4375083, at *1
(W.D. Pa. Sept. 13, 2018). Relying on our analysis in Mack II,
it held that a reasonable jury could side with Mack on his
RFRA claim and find that the defendants’ “anti-Muslim
comments, conduct, and tacit approval created a hostile and
harassing environment ‘substantial’ enough to dissuade Mack
from practicing his religion by praying at work as he had prior
to the harassment.” Id. at *5-6. The Court also concluded that
the defendants were not entitled to qualified immunity on the
First Amendment retaliation claim. Id. at *8.
The defendants appealed the part of the District Court’s
order denying them qualified immunity on the retaliation
claim, and we reversed. Mack v. Yost (Mack III), 968 F.3d 311,
314, 318 (3d Cir. 2020). We held that the claim was no longer
cognizable as a Bivens action in light of the Supreme Court’s
decision in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), which
12
narrowed the availability of such claims. Id. at 314, 325. That
left intact, on remand, just one final piece of the case: the
RFRA claim against Roberts and Venslosky.
Those two guards, the Defendants before us now,
moved again for summary judgment on that claim, asserting –
for the first time – that they are entitled to qualified immunity
for their actions because they did not violate any clearly
established rights. 6 This time, the District Court granted their
motion. It first concluded that qualified immunity is a defense
to a RFRA claim. Then, on the merits, the Court held that it
was not clearly established in 2009, when the Defendants’
conduct took place, that their harassing actions would violate
RFRA. The Court observed that Mack had not cited any cases
finding RFRA violations in factually similar circumstances,
since the cases he offered all entailed a “direct, outright denial,
or active limitation of a diet compelled by religious belief,”
rather than the “indirect, mostly verbal conduct” that caused
Mack to “voluntarily cease exercising a tenet of his faith.”
(J.A. at 16.) By contrast, the Court considered the cases cited
by the Defendants to be more analogous, cases in which
6
The Defendants relied on qualified immunity
throughout this litigation in seeking to defeat the First
Amendment retaliation claim, but they waited until their first
summary judgment motion to assert that defense against the
RFRA claim. Even then, they claimed that they had not
violated any right under RFRA but did not address the second
prong of the analysis, which asks whether the right at issue is
clearly established. Still, after Mack III, the District Court
permitted them to again move for summary judgment, this time
on whether they had violated any clearly established right.
13
“verbal harassment” was found to not substantially burden
religious exercise. (J.A. at 16.) To the District Court, those
cases showed there was no clearly established law prohibiting
conduct like the Defendants’.
Mack has once again appealed. The NAACP Legal
Defense and Education Fund, Inc. and Rights Behind Bars
(“Amici”) filed an amicus curiae brief in support of Mack, and
we granted them leave to present oral argument. We appreciate
their participation.
II. DISCUSSION 7
A. A Qualified Immunity Defense Is Available
Under RFRA
“[T]he judicially created doctrine of qualified
immunity” shields governmental officials from suit and from
liability if their conduct “does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.” Peroza-Benitez v. Smith, 994 F.3d 157,
7
The District Court had jurisdiction under 28 U.S.C.
§ 331. We have appellate jurisdiction pursuant to 28 U.S.C.
§ 1291. We exercise plenary review over matters of statutory
interpretation. Fair Hous. Rights Ctr. in Se. Pa. v. Post
Goldtex GP, LLC, 823 F.3d 209, 213 (3d Cir. 2016). “[W]e
are bound, on the basis of our independent judgment, … to
interpret statutory provisions and accord them the meaning that
Congress intended,” regardless of the parties’ positions. G.L.
v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601, 615 n.13 (3d
Cir. 2015) (cleaned up).
14
164-65 (3d Cir. 2021). Qualified immunity “balances two
important interests – the need to hold public officials
accountable when they exercise power irresponsibly and the
need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.” Id. at 164
(quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)).
Mack challenges the District Court’s grant of summary
judgment to the Defendants on the basis of that doctrine. But
before we consider his arguments, we first address the
threshold question of whether a qualified immunity defense is
even available in a suit brought under RFRA. We hold that it
is. 8
In interpreting RFRA, we begin, as with any statute,
with the text. Khan v. Att’y Gen., 979 F.3d 193, 197-98 (3d
Cir. 2020). It states that the “[g]overnment shall not
substantially burden a person’s exercise of religion … [unless]
it demonstrates that application of the burden to the person –
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling
8
The Defendants argue that Mack has forfeited the issue
of whether qualified immunity is available as a defense in a
RFRA case by failing to squarely bring it before us. But, even
if that were true, we must necessarily resolve that predicate
question of statutory interpretation, using “our independent
judgment,” id., before turning to the Defendants’ invocation of
immunity. See Stramaski v. Lawley, 44 F.4th 318, 326-27 (5th
Cir. 2022) (“[R]egardless of whether the applicability of
qualified immunity to [a statute] is a statutory-construction
issue or whether it is simply too critical to ignore in this case,
we will address it.”).
15
governmental interest.” 42 U.S.C. § 2000bb-1(a)-(b). Anyone
“whose religious exercise has been burdened in violation of
[RFRA]” can sue to “obtain appropriate relief.” Id. § 2000bb-
1(c). There is no mention of qualified immunity. Rather,
liability appears mandatory unless the defendant can show that
the actions constituting the substantial burden are the least
restrictive means of furthering a compelling government
interest. And the open-ended phrase “appropriate relief” does
not obviously hint at a qualified immunity defense.
But we do not interpret statutes in a vacuum, and
Congress does not legislate in one. Rather, “Congress is
presumed to enact legislation with knowledge of the law and a
newly-enacted statute is presumed to be harmonious with
existing law and judicial concepts.” Farina v. Nokia Inc., 625
F.3d 97, 112 (3d Cir. 2010). In the RFRA setting in particular,
the authorization of “appropriate relief” is “inherently context
dependent.” Tanzin v. Tanvir, 141 S. Ct. 486, 491 (2020)
(quoting Sossamon v. Texas, 563 U.S. 277, 286 (2011)).
Congress passed RFRA in 1993, Pub. L. No. 103-141,
§ 2, 107 Stat. 1488, more than a century after it enacted the
Civil Rights Act of 1871. The present-day version of the latter,
42 U.S.C. § 1983, permits suits against state government
officials who deprive individuals of “any rights, privileges, or
immunities secured by the Constitution and laws.” Like
RFRA, § 1983 “on its face admits of no immunities.” Malley
v. Briggs, 475 U.S. 335, 339 (1986). “By the time Congress
enacted RFRA,” however, the Supreme Court had interpreted
§ 1983 “to permit monetary recovery against officials” only if
they “violated ‘clearly established’ federal law.” Tanzin, 141
S. Ct. at 491.
16
Specifically, the Court had held that § 1983 did not
abrogate certain well-established common-law immunities
protecting government officials. Buckley v. Fitzsimmons, 509
U.S. 259, 268 (1993); Pierson v. Ray, 386 U.S. 547, 554-55
(1967); cf. Malley, 475 U.S. at 339 (“[W]e have read [§ 1983]
‘in harmony with general principles of tort immunities and
defenses rather than in derogation of them.’”). The Court
understood the common law as of 1871 to provide most
officials a qualified immunity from liability for their actions.
Buckley, 509 U.S. at 268. Section 1983 did not abrogate such
immunity, so, under the statute, an officer who violated an
individual’s federal rights could not be subject to liability for
damages if those rights were not clearly established. 9 Id.;
Davis v. Scherer, 468 U.S. 183, 194 n.12 (1984) (“[O]fficials
sued for violations of rights conferred by a statute … become
liable for damages only to the extent that there is a clear
violation of the statutory rights that give rise to the cause of
action for damages.”).
9
Although the Court found support in the common law
for the existence of qualified immunity, Buckley v.
Fitzsimmons, 509 U.S. 259, 268 (1993), the standard for
immunity on which it ultimately settled – shielding officers
from liability unless they violated clearly established rights of
which an objectively reasonable person would have known –
was “not at all embodied in the common law.” Anderson v.
Creighton, 483 U.S. 635, 645 (1987). Rather, the Court
“completely reformulated qualified immunity” and steered the
doctrine away from “the inquiry into [whether the officer acted
with] subjective malice so frequently required at common
law.” Id.17
And while § 1983 is the vehicle for claiming that state
officials have violated federal constitutional or statutory rights,
the Supreme Court has held that Bivens actions asserting
implied causes of action against federal officials for
constitutional violations are similarly subject to a qualified
immunity defense. Butz v. Economou, 438 U.S. 478, 500-04
(1978). The Court found “no basis” for treating differently
“federal officials … sued for a constitutional infringement as
authorized by Bivens” and “state officials … sued for the
identical violation under § 1983.” Id. at 500.
So, to summarize: Congress enacted RFRA against a
“legal backdrop,” Tanzin, 141 S. Ct. at 490 (internal quotation
marks omitted), in which state and federal officials sued for
violating the Constitution, and state officials sued for violating
federal law, could invoke qualified immunity as a defense.
Indeed, qualified immunity “represent[ed] the norm” when it
came to suits against public officials. Harlow v. Fitzgerald,
457 U.S. 800, 807 (1982). It is therefore appropriate to
presume that Congress drafted RFRA mindful of and
consistent with that status quo. Cf. Farina, 625 F.3d at 112 (“It
is only natural that Congress would intend to incorporate into
[the Class Action Fairness Act] the case law governing
amended pleadings.”).
That presumption is not absolute, as Congress can
“override” the “background of common-law adjudicatory
principles.” Mohamad v. Palestinian Auth., 566 U.S. 449, 457
(2012) (internal quotation marks omitted). But here, there is
good reason to think that Congress embraced and incorporated
the doctrine of qualified immunity in enacting RFRA. The
Supreme Court’s decision in Tanzin v. Tanvir is instructive.
141 S. Ct. 486 (2020). The question presented in that case was
18
whether RFRA’s authorization of “appropriate relief”
“include[d] claims for money damages against Government
officials in their individual capacities,” and the Court answered
in the affirmative. Id. at 489. It first held that RFRA, like
§ 1983, authorized individual-capacity suits against federal
officers. Id. at 490. “Because RFRA uses the same
terminology as § 1983 in the very same field of civil rights law,
‘it is reasonable to believe that the terminology bears a
consistent meaning,’” the Court reasoned. Id. at 490-91
(quoting Antonin Scalia & Bryan Garner, Reading Law: The
Interpretation of Legal Texts 323 (2012)). In deciding what
relief was “appropriate” in such suits, the Court looked to the
“availability of damages under § 1983” in suits against state
and local government officials. Id. at 491-92. Since the
statutes are sufficiently similar, “parties suing under RFRA
must have at least the same avenues for relief against officials”
that they had under § 1983, which included “a right to seek
damages against Government employees.” Id. at 492.
The Court did not directly address whether the right to
damages under RFRA was subject to a qualified immunity
defense. But, in a footnote, it observed with apparent approval
that the parties had agreed “that government officials are
entitled to assert a qualified immunity defense when sued in
their individual capacities for money damages under RFRA.”
Id. at 492 n.*. It then went on to highlight the government’s
position that the qualified immunity defense “was created for
precisely these circumstances” – i.e., suits seeking money
damages from officials sued in their individual capacities – and
is “a ‘powerful shield’ that ‘protects all but the plainly
incompetent or those who flout clearly established law.’” Id.
(internal citations omitted).
19
Although Tanzin did not say whether qualified
immunity is available to RFRA defendants, the force of its
logic makes the answer clear. Just as the textual similarity
between § 1983 and RFRA means that those statutes provide
analogous remedies, id. at 492, it stands to reason that they also
contemplate analogous defenses. Qualified immunity limits a
§ 1983 plaintiff’s ability to obtain damages, and since
“Congress intended for courts to borrow concepts from § 1983
jurisprudence when construing RFRA,” Mack II, 839 F.3d at
302, qualified immunity must also limit a RFRA plaintiff’s
ability to get damages. See Ajaj v. Fed. Bureau of Prisons, 25
F.4th 805, 814 (10th Cir. 2022) (“The very analysis [in Tanzin]
that supported recognition of the damages claim also compels
recognition of qualified immunity.”). Underscoring that
rationale, Tanzin’s conspicuously detailed and approving
footnote reference to qualified immunity signals that
application of the doctrine to RFRA claims is appropriate.
Even if we felt that there was some room for doubt after
Tanzin, refusing to recognize a qualified immunity defense to
RFRA claims would be inconsistent with precedent extending
the defense to claims under a number of other statutes. The
Supreme Court has relied on the doctrine when examining a
claim under 42 U.S.C. § 1985(3), a Civil War Era remedial
statute that prohibits conspiracies to deprive others of equal
protection or equal privileges under the law. Ziglar v. Abbasi,
137 S. Ct. 1843, 1865-66 (2017). And “many circuits have
applied qualified immunity to individual-capacity suits under
a variety of statutes,” Ajaj, 25 F.4th at 814, including the
Family and Medical Leave Act, the Americans with
Disabilities Act, the Rehabilitation Act of 1973, the Racketeer
Influenced and Corrupt Organizations Act, the Sherman
Antitrust Act, the Fair Housing Act, and Title VI of the Civil
20
Rights Act of 1964. Bryant v. Tex. Dep’t of Aging & Disability
Servs., 781 F.3d 764, 771 (5th Cir. 2015); Gonzalez v. Lee
Cnty. Hous. Auth., 161 F.3d 1290, 1299-300, 1300 n.34 (11th
Cir. 1998). 10 Our Amici claim that, because RFRA is focused
on a specific subject matter, as opposed to § 1983’s broader
focus, using a judge-made doctrine to limit recovery would
undermine its purpose. The same, however, could be said of
the various statutes that courts have found to be subject to a
qualified immunity defense, and yet those laws have been read
to incorporate the doctrine.
But RFRA is special, say both Mack and our Amici.
The statute was designed to protect religious liberty rights, and
so, they argue, it would frustrate the statutory promise of
protection if we recognize a qualified immunity defense that
lets officers off the hook except when they violate clearly
established law. Yet while the First Amendment’s Free
10
Amici direct us to a case refusing to apply qualified
immunity to whistleblower retaliation suits under the False
Claims Act (“FCA”), Samuel v. Holmes, 138 F.3d 173 (5th Cir.
1998). But the concern there was that, “given the goals of the
FCA[]” to discourage fraud against the government and
encourage those with knowledge of such fraud to disclose it,
“[g]ranting government officials … qualified immunity would
hardly spur reluctant employees to step forward.” Id. at 178;
see also United States ex rel. Citynet, LLC v. Gianato, 962 F.3d
154, 159 (4th Cir. 2020) (declining to recognize a qualified
immunity defense under another FCA provision). The FCA’s
purposes take it far afield of RFRA, which, like § 1983, is a
remedial statute designed to protect civil rights. Section 1983,
then, provides the much better comparator.
21
Exercise Clause also serves as a bulwark against governmental
intrusion on religious practice, there is “no doubt that damages
claims have always been available under § 1983 for clearly
established violations of the First Amendment.” Tanzin, 141
S. Ct. at 492 (emphasis added). In other words, such relief is
available only when defendants are not entitled to qualified
immunity.
It is true that RFRA was enacted to guarantee more
generous protections for religious freedom than are available
under the Supreme Court’s present interpretation of the First
Amendment. A few years before passage of the statute, the
Court in Employment Division, Department of Human
Resources of Oregon v. Smith overruled prior caselaw and held
that neutral and generally applicable laws, even if they
incidentally burden religious exercise, pass muster under the
First Amendment. 494 U.S. 872, 880-81, 883-86 & n.3 (1990);
cf. Yellowbear v. Lampert, 741 F.3d 48, 52 (10th Cir. 2014)
(Gorsuch, J.) (noting that pre-Smith caselaw “suggested that no
law, not even a neutral law of general applicability,” could
substantially burden religious exercise unless that burden is the
least restrictive means of achieving a compelling governmental
interest). With RFRA, Congress revived the Court’s pre-Smith
precedents, prohibiting government officials from taking any
action that substantially burdens religious exercise, “even if the
burden results from a rule of general applicability,” if the
action is not the least restrictive means of furthering a
compelling government interest. 11 42 U.S.C. § 2000bb-1(a);
11
RFRA actually “did more than merely restore the …
[pre-Smith] line of cases; it provided even broader protection
for religious liberty” by adding the “least restrictive means”
22
see also id. § 2000bb(a)(2) (finding that “laws ‘neutral’ toward
religion may burden religious exercise as surely as laws
intended to interfere with religious exercise”).
In short, RFRA placed individuals on essentially the
same footing as they had been prior to Smith in terms of their
rights against and remedies for governmental invasions of
religious liberty. Those remedies, of course, included money
damages under § 1983 and Bivens, subject to a qualified
immunity defense. There is no reason to believe that the robust
safeguards RFRA put in place to defend religious freedom
effected a departure from the existing practice of allowing
officers to invoke qualified immunity.
Our Amici emphasize that RFRA and its silence on the
matter of qualified immunity is “modern,” as compared with
the long history of § 1983’s silence. (Amici Br. at 16.) But
RFRA’s being of more recent vintage cuts against discarding
qualified immunity, as that doctrine was firmly in place for
other civil-rights actions when RFRA was enacted. See
Gonzalez, 161 F.3d at 1299 n.31 (reasoning that a statute’s
“silen[ce] as to qualified immunity indicates that Congress did
not intend to preclude the common-law qualified immunity
defense” in suits under that statute). After all, if Congress had
wanted to discard the doctrine, “we presume that [it] would
have specifically so provided.” Buckley, 509 U.S. at 268.
Finally, our Amici challenge the doctrinal justifications
for affording officers qualified immunity, arguing that we
requirement. Burwell v. Hobby Lobby Stores, Inc., 573 U.S.
682, 695 n.3 (2014).
23
should decline to expand the doctrine to a new context due to
its lack of a sound basis in text, history, or practical
considerations. True enough, the textual and policy-based
underpinnings of qualified immunity have generated debate in
recent years. 12 Reconsidering whether the doctrine should
12
Compare Baxter v. Bracey, 140 S. Ct. 1862, 1862-64
(2020) (Thomas, J., dissenting from the denial of certiorari)
(arguing that the Supreme Court’s “§ 1983 qualified immunity
doctrine appears to stray from the statutory text” and is not
“grounded in the common-law backdrop against which
Congress enacted the 1871 Act”); Kisela v. Hughes, 138 S. Ct.
1148, 1162 (2018) (Sotomayor, J., dissenting) (contending that
the doctrine has been “transform[ed] … into an absolute shield
for law enforcement officers”); William Baude, Is Qualified
Immunity Unlawful?, 106 Cal. L. Rev. 45, 45-46 (2018)
(describing qualified immunity as “unlawful and inconsistent
with conventional principles of statutory interpretation” and
having “shoddy foundations”); Joanna C. Schwartz, The Case
Against Qualified Immunity, 93 Notre Dame L. Rev. 1797,
1799-800 (2018) (qualified immunity “fails to achieve its
intended policy aims,” “hamper[s] the development of
constitutional law[,] and may send the message that officers
can disregard the law without consequence”); with Scott A.
Keller, Qualified and Absolute Immunity at Common Law, 73
Stan. L. Rev. 1337, 1337 (2021) (asserting that the common
law in 1871 recognized a qualified immunity against suit
absent evidence of “an officer’s subjective improper
purpose”); Aaron L. Nielson & Christopher J. Walker, A
Qualified Defense of Qualified Immunity, 93 Notre Dame L.
Rev. 1853, 1874-75, 1882-85 (2018) (defending the doctrine
on stare decisis grounds and arguing that it is effective in
weeding out meritless suits); Hon. Andrew S. Oldham, Official
24
continue in its current form, however, is not within our
purview. That decision lies with Congress, as wielder of the
statute-drafting pen, and with the Supreme Court, as chief
interpreter of Congress’s handiwork. Unless and until either
of those bodies changes the legal landscape, we must faithfully
apply both the letter and spirit of binding precedent. See
Winslow v. F.E.R.C., 587 F.3d 1133, 1135 (D.C. Cir. 2009)
(Kavanaugh, J.) (“Vertical stare decisis – both in letter and in
spirit – is a critical aspect of our hierarchical Judiciary headed
by ‘one supreme Court.’”). In light of the Court’s recognition
in Tanzin of the similarities between RFRA and § 1983, and in
the absence of any principled reason to treat RFRA differently
from the other statutes that are subject to qualified immunity
defenses, precedent and principles of statutory interpretation
prompt us – as they have several of our sister circuits 13 – to
Immunity at the Founding 1, 22-27 (Apr. 19, 2021)
(unpublished manuscript) (available at
https://papers.ssrn.com/sol3/papers.cfm?
abstract_id=3824983) (suggesting that the original public
meaning of the Fourth Amendment incorporated a form of
qualified immunity as a constitutional matter).
13
See Ajaj v. Fed. Bureau of Prisons, 25 F.4th 805, 817
(10th Cir. 2022) (“We conclude that qualified immunity can be
invoked by officials sued for damages in their individual
capacities under RFRA.”); accord Fazaga v. Fed. Bureau of
Investigation, 965 F.3d 1015, 1061 (9th Cir. 2020) (analyzing
RFRA claim to see if “it was not clearly established” when the
defendants’ conduct took place that it would count as a
“substantial religious burden”), rev’d on other grounds, 142 S.
Ct. 1051 (2022); Davila v. Gladen, 777 F.3d 1198, 1210-11
(11th Cir. 2015) (similar); Lebron v. Rumsfeld, 670 F.3d 540,
25
accept qualified immunity as a limit on the scope of relief
under RFRA.
B. The Defendants Are Not Entitled To
Qualified Immunity At This Stage 14
We turn next to the core question on appeal: whether the
District Court correctly granted the Defendants qualified
immunity on the grounds that they did not violate clearly
established rights. Based on the record before us, we conclude
it was error to deem the Defendants immune at this stage of the
560 (4th Cir. 2012) (similar); see also Rasul v. Myers, 563 F.3d
527, 533 n.6 (D.C. Cir. 2009) (per curiam) (holding, in the
alternative, that the defendants “are entitled to qualified
immunity against plaintiffs’ RFRA claim”).
14
We exercise plenary review over a district court’s
grant of summary judgment based on qualified immunity.
Jefferson v. Lias, 21 F.4th 74, 80 (3d Cir. 2021). Similarly, we
review de novo “the legal grounds underpinning a claim of
qualified immunity.” Karns v. Shanahan, 879 F.3d 504, 512
(3d Cir. 2018). Summary judgment is appropriate if “there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).
We view the evidence in the light most favorable to the non-
moving party and “give that party the benefit of all reasonable
inferences that can be drawn from the evidence.” Halsey v.
Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014); see also Bitner, 455
F.3d at 187 n.1 (“Because we are reviewing a claim of
qualified immunity, we view the factual allegations in the light
most favorable to the party claiming injury.” (citing Saucier v.
Katz, 533 U.S. 194, 201 (2001))).
26
case. The grant of summary judgment in their favor thus
cannot stand.
Our inquiry is guided by the two-prong test for qualified
immunity, the first prong being whether the facts, as viewed in
the light most favorable to the plaintiff, show the violation of a
legal right, and the second being whether that right was clearly
established. Peroza-Benitez, 994 F.3d at 165. “[T]he party
asserting the affirmative defense of qualified immunity” bears
the burden of persuasion on both prongs at summary judgment.
Halsey v. Pfeiffer, 750 F.3d 273, 288 (3d Cir. 2014).
1. Mack’s Rights Were Violated
It is undisputed that the first prong – a violation of
Mack’s RFRA rights – has been established here. To establish
a prima facie case under RFRA, Mack needed to show “that
the government (1) substantially burdened (2) a sincere (3)
religious exercise.” Mack II, 839 F.3d at 304. Here, there is
no question that Mack sincerely adheres to his faith, and that
his prayers at the commissary constituted religious exercise.
RFRA defines “exercise of religion” to mean “any exercise of
religion, whether or not compelled by, or central to, a system
of religious belief.” See 42 U.S.C. § 2000bb-2(4)
(incorporating RLUIPA’s definition for “religious exercise,”
42 U.S.C. § 2000cc-5(7), as the definition of “exercise of
religion” for RFRA). Thus, Mack’s prayers are no less
religious exercise because he heeded his imam’s advice and
ceased praying at the commissary altogether after Roberts and
Venslosky escalated their campaign of harassment against him.
See Holt v. Hobbs, 574 U.S. 352, 355-56, 362 (2015)
(explaining it was error to treat “the burden on petitioner’s
religious exercise,” i.e., a prison policy prohibiting him from
27
growing a half-inch beard, as “slight” because “his religion
would ‘credit’ him for attempting to follow his religious
beliefs, even if that attempt proved to be unsuccessful” because
RLUIPA “applies to an exercise of religion regardless of
whether it is ‘compelled’”).
As for the substantial burden element of the prima facie
case, we held it was satisfied at the motion-to-dismiss stage, as
Mack plausibly alleged that Roberts and Venslosky had placed
“indirect pressure … on [him]” “to stop praying at work” by
creating a “hostile work environment” that drove him to
“betray [his] religious beliefs.” Mack II, 839 F.3d at 304. And
the District Court found “[t]he same conclusion … warranted”
on the basis of the factual record at summary judgment,
concluding that a reasonable jury could find that the
Defendants had “‘substantially burdened’ Mack’s religious
exercise by pressuring him into altering his prayer rituals.”
Mack, 2018 WL 4375083, at *5.
The Defendants nowhere argue that the District Court
got that wrong. It thus became incumbent upon them to show
that their actions were the least restrictive means of furthering
a compelling government interest. Small v. Lehman, 98 F.3d
762, 767 (3d Cir. 1996), overruled on other grounds by City of
Boerne v. Flores, 521 U.S. 507 (1997); Korte v. Sebelius, 735
F.3d 654, 673 (7th Cir. 2013). They have not even attempted
to do that. Accordingly, we see no reason to disturb the District
Court’s conclusion that the Defendants unlawfully infringed
Mack’s religious liberty. For our purposes, then, we proceed
with the understanding that a violation of RFRA occurred,
although we reiterate that this conclusion is made solely for the
purpose of reviewing the summary judgment ruling now on
28
appeal and is based on viewing in the light most favorable to
Mack the record as it now stands.
2. Mack’s Rights Were Clearly
Established
Because the Defendants have failed on the first prong of
the qualified immunity analysis, they are only entitled to
summary judgment if they can bear the burden of showing, on
the second prong, that reasonable officers could not have
known that their actions violated clearly established law.
Halsey, 750 F.3d at 288. In analyzing the “clearly established
law” prong, we proceed in two steps: we first “define the right
allegedly violated at the appropriate level of specificity” and
then “ask whether that right was ‘clearly established’ at the
time of its alleged violation.” Jefferson, 21 F.4th at 81.
a. The Right as Properly Defined
It is essential to begin by “fram[ing] the right ‘in light
of the specific context of the case,’” with all reasonable
inferences drawn in the nonmovant’s favor. Peroza-Benitez,
994 F.3d at 165-66; accord Tolan v. Cotton, 572 U.S. 650, 657
(2014) (“Our qualified-immunity cases illustrate the
importance of drawing inferences in favor of the nonmovant,
even … [on] the clearly-established prong of the standard.”).
The Supreme Court has repeatedly cautioned that the qualified
immunity inquiry demands a “high ‘degree of specificity’” and
that courts may not “define clearly established law at a high
level of generality,” which would “avoid[] the crucial question
whether the official acted reasonably in the particular
circumstances that he or she faced.” District of Columbia v.
Wesby, 138 S. Ct. 577, 590 (2018).
29
Mack misses the mark when he frames the relevant right
as a freedom from “restrictions on or hindrances to central
religious practices” or “direct or indirect governmental action”
that burdens his religious practices. (Opening Br. at 13, 24;
accord Mack Supp. Ltr. at 3 (“[I]t is clearly established that a
defendant cannot substantially burden a prisoner’s religious
practices – either directly or indirectly – without
justification.”).) That is far too broad and generic a statement.
See HIRA Educ. Servs. N. Am. v. Augustine, 991 F.3d 180, 191
(3d Cir. 2021) (finding inadequately specific, for qualified
immunity analysis on First Amendment and RLUIPA claims,
“the general constitutional rule that government officials
cannot interfere with the free exercise of religion”). Indeed, it
is hard to imagine any RFRA violation – which necessarily
requires that government “substantially burden” the exercise of
religion, 42 U.S.C. § 2000bb-1(a) – that would not involve a
“restriction on” or “hindrance[] to” religious exercise achieved
through either “direct or indirect” government action.
But the Defendants also fail to correctly frame the right.
Their framing is, in a sense, too narrow, as it ignores the
present factual and procedural realities of the case. Taking
their cue from our decision in Mack II, they assert that the right
at issue is freedom from a “hostile work environment” ‒ one
consisting of “mostly verbal” “anti-Muslim harassment” ‒ that
“indirect[ly]” causes an inmate to “refrain from praying during
his prison work assignment.” (Answering Br. at 7, 12-13, 18
(quoting Mack II, 839 F.3d at 304).) Mack II, however, was
decided at the pleading stage, based on a liberal construction
of Mack’s pro se amended complaint. 839 F.3d at 293-94. Our
discussion of Mack’s allegations focused on Roberts slapping
an “I LOVE BACON” sticker on Mack’s back and later saying
30
to him, “there is no good Muslim, except a dead Muslim!” Id.
at 291-92.
The record is different now, and so is the procedural
posture. We are reviewing the District Court’s ruling at
summary judgment, with the benefit of a developed factual
record, including, in particular, Mack’s deposition testimony.
That testimony, taken at face value, reveals that in addition to
the harassment we identified from Mack’s allegations, the
Defendants actively and intentionally interfered with Mack’s
ability to practice his Muslim faith. Mack spoke about the
importance of praying five times a day at set times, which he
tried to do by praying “[a]s much as [he] could” while on shift
breaks at the commissary. (J.A. at 134-35.) He also described
how Roberts and Venslosky would come to the back corner of
the commissary and make noises, tell jokes, speak loudly, and
kick boxes around, “[i]nterrupt[ing]” the focus Mack was
trying to achieve while he prayed. (J.A. at 132-34.) Those
disruptions, Mack testified, were a purposeful part of an overall
campaign by the officers to get him to stop praying at the
commissary. And that campaign, according to Mack, led him
to first delay his prayers and then to cease praying altogether
at the times required by his faith. He instead tried to catch up
on his prayers at the end of the day.
In light of that deposition testimony, we conclude that
the District Court erred in how it framed the relevant right in
its “clearly established law” analysis. The Court largely sided
with the Defendants’ view and looked to see whether the
unlawfulness of their “mostly verbal” anti-Muslim harassment
and hostility was clearly established. (J.A. at 16.) But a better
characterization of the RFRA violation – one that more
appropriately reflects “the specific context of the case,” as
31
viewed in the light most favorable to Mack, Peroza-Benitez,
994 F.3d at 165-66 – is that the Defendants violated Mack’s
right to engage in prayer free of substantial, deliberate,
repeated, and unjustified disruption by prison officials. That
understanding of the right tracks Mack’s portrayal of the harm
he experienced, and it takes account of the Defendants’ failure
to tie their behavior to any legitimate penological interest, let
alone a compelling one as required by RFRA. 15 (Opening Br.
15
Our dissenting colleague agrees with the Defendants’
and the District Court’s more narrow framing of the
constitutional right at issue, but even the Defendants
acknowledge that Mack “attempts to characterize the conduct
in this case as involving … a ‘persistent’ and ‘malicious’
‘campaign’ to stop [him] from praying.” (Answering Br. at 18.)
And the Defendants do not argue that such framing is too
general. Indeed, they make no effort to show that their conduct
did not clearly violate RFRA or other analogous free exercise
jurisprudence. Instead, they refuse to engage with that framing
because they say it is either foreclosed by Mack II’s discussion
of Mack’s pro se allegations or by the record before us now.
But we have now rejected both of those bases. See supra at
Section II.B.1.
The Dissent also argues that our framing of the right is
too general and abstract and, further, that we fail to account for
the fact that Mack ceased praying voluntarily and did so
believing that cessation would not violate his faith. We must
respectfully disagree. To say that a prison official may not,
without legitimate justification, engage in a substantial,
deliberate, and repeated effort to interfere with an inmate’s
prayer is not to indulge in an abstraction. It is certainly not
akin to defining the right in an excessive force case by saying
simply that “objective reasonableness” is the touchstone for
32
Fourth Amendment claims, Graham v. Connor, 490 U.S. 386,
388 (1989), or reciting the broad statements of Tennessee v.
Garner, 471 U.S. 1 (1985), regarding the use of deadly force.
But even if our framing could be construed as closer to that end
of the generality spectrum, the Supreme Court made it plain in
Brosseau v. Haugen that, in the Fourth Amendment context,
“[o]f course, in an obvious case, the[] standards [of Graham
and Garner] can ‘clearly establish’ the answer, even without a
body of relevant case law.” 543 U.S. 194, 199 (2004) (citing
Hope v. Pelzer, 536 U.S. 730, 738 (2002)). Such an obvious
case confronts us now.
Neither Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 8-9
(2021) (per curiam), nor White v. Pauly, 580 U.S. 73, 80 (2017)
(per curiam), changes the obviousness inquiry. Indeed, the
Supreme Court in Rivas-Villegas specifically reaffirmed the
point we have just set out, citing Brosseau. See Rivas-Villegas,
142 S. Ct. at 8 (explaining that, though “Graham’s and
Garner’s standards are cast ‘at a high level of generality[,]’
Brosseau, 543 U.S. at 199, ‘[i]n an obvious case, these
standards can ‘clearly establish’ the answer, even without a
body of relevant case law”). The Court concluded only that the
encounter at issue in Rivas-Villegas did not present an obvious
case. Id. White likewise reaffirmed Brosseau but, again, found
the situation confronted by the officer in question to be a non-
obvious case. See White, 580 U.S. at 74, 80 (reaffirming its
“h[o]ld[ing] that Garner and Graham do not by themselves
create clearly established law outside ‘an obvious case’”
(quoting Brosseau, 543 U.S. at 199)).
Turning to the suggestion that Mack’s supposedly
voluntary cessation of prayer changes the calculus here, we
again part ways with our dissenting colleague. As noted
earlier, RFRA defines the “exercise of religion” to cover more
33
at 6, 15, 17-18, 21 (asserting that the Defendants “repeatedly”
and “intentionally” waged a “campaign to force Mack to stop
praying,” which included “intrud[ing] into” and
“interrupt[ing]” Mack’s prayers, using intimidation, along with
harassing statements and actions, which “served no
conceivable penological purpose”).)
If the District Court felt constrained by our description
of Mack’s allegations at the motion-to-dismiss stage, it should
not have. Usually, the law of the case doctrine dictates that
“when a court decides upon a rule of law, that decision should
continue to govern the same issues in subsequent stages in the
same case.” Farina, 625 F.3d at 117 n.21. But that doctrine
does not prevent a court from deciding a summary judgment
motion based on record evidence in a way that differs from
previous decisions that were based on allegations in the
complaint. See Wiest v. Tyco Elecs. Corp., 812 F.3d 319, 329-
30 (3d Cir. 2016) (rejecting a contrary argument as a “critical
misapplication of the fundamental distinction between a
motion to dismiss under Rule 12(b)(6) and a motion for
summary judgment under Rule 56”). Our analysis of Mack’s
complaint was not the law of the case for the District Court
when it considered the record at summary judgment, nor is it
than what one’s faith compels him to do. See Section II.B.1.
More importantly, on the facts as we must take them, Mack
stopped praying not because he wanted to but because the
Defendants successfully campaigned to make him stop. That
he did stop praying at the commissary does not end the matter,
as the Dissent suggests. It is the matter. It is the whole point.
We must confront whether such a campaign was clearly
unlawful when the Defendants waged it.
34
the law of the case for us now. 16 We are therefore free to, and
do, conclude that the relevant right here is the right to pray free
of substantial, deliberate, repeated, and unjustified disruption
by prison officials.
b. Clearly Established Violation of
the Right
Finally, we must decide if the right, as properly framed,
is “sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” Peroza-
Benitez, 994 F.3d at 165 (internal quotation marks omitted).
That is “an objective (albeit fact-specific) question, where an
officer’s subjective beliefs are irrelevant.” Id. (cleaned up). 17
16
For the same reason, Mack is wrong to say that the
entire question of qualified immunity is resolved by Mack II.
And in any event, we said nothing there about qualified
immunity as it relates to Mack’s RFRA claim, since the issue
had not been raised. So even if Mack II constrained our
analysis, the law of the case doctrine still would not settle the
qualified immunity issue. See Africa v. City of Philadelphia,
158 F.3d 711, 718 (3d Cir. 1998) (“The law of the case
doctrine… preclude[s] review of only those legal issues that
the court in a prior appeal actually decided.”).
17
We note an important distinction here: whether a
reasonable officer “would understand that what he is doing
violates [a clearly established] right” is an objective test,
Peroza-Benitez, 994 F.3d at 165, but that does not mean that
only constitutional violations lacking a subjective element can
become clearly prohibited by established law. While it is
“simply irrelevant” whether the government officials “in fact
knew that they were violating plaintiffs’ constitutional rights,”
35
A right is clearly established if there is either “closely
analogous” caselaw establishing that a defendant’s conduct
was unlawful or “evidence that the Defendant’s conduct was
we have explained that, “in evaluating a defense of qualified
immunity, an inquiry into the defendant’s state of mind is
proper where such state of mind is an essential element of the
underlying civil rights claim.” Grant v. City of Pittsburgh, 98
F.3d 116, 123, 125 (3d Cir. 1996). Indeed, on a number of
occasions we have analyzed clearly established rights
involving a subjective state-of-mind element. See, e.g., Dennis
v. City of Philadelphia, 19 F.4th 279, 290 (3d Cir. 2021) (“We
conclude that the constitutional rule that framing criminal
defendants through use of fabricated evidence, including false
or perjured testimony, violates their constitutional rights
applies with such obvious clarity that it is unreasonable for us
to conclude anything other than that the detectives were on
sufficient notice that their fabrication of evidence violated
clearly established law.”); Kedra v. Schroeter, 876 F.3d 424,
444 (3d Cir. 2017) (finding in connection with the shooting of
police officer by his instructor during firearms training that
“the allegations in [the] complaint are more than sufficient to
state a claim for a state-created danger based on actual
knowledge of a substantial risk of serious harm ‒ the subjective
theory of deliberate indifference that was then-clearly
established”); Halsey, 750 F.3d at 296 (“The Supreme Court
established decades before the original investigation in this
case that the Constitution forbids prosecutors from knowingly
using perjured testimony to secure a criminal conviction.”).
Hence, our inclusion of the word “deliberate” in the framing of
the right at issue here is not inconsistent with an objective test
for whether a right is clearly established.
36
so patently violative of the … right that reasonable officials
would know [it to be a violation] without guidance from a
court.” Schneyder v. Smith, 653 F.3d 313, 330 (3d Cir. 2011).
We take a “broad view” of what makes a right clearly
established, which can be satisfied “even without a precise
factual correspondence between the case at issue and a
previous case.” Peroza-Benitez, 994 F.3d at 166 (internal
quotation marks omitted). It is enough that “existing precedent
… placed the statutory … question beyond debate.” 18 Ashcroft
v. al-Kidd, 563 U.S. 731, 741 (2011); accord Williams v.
Bitner, 455 F.3d 186, 192 (3d Cir. 2006) (“[I]f the
unlawfulness of the defendant’s conduct would have been
apparent to a reasonable official based on the current state of
18
We make no distinction here between cases applying
RFRA and those relying on RLUIPA, since “the two statutes
are analogous for purposes of the substantial burden test.”
Mack II, 839 F.3d at 304 n.103. RFRA originally applied to
both the federal government and the states, but the Supreme
Court later held the law unconstitutional as applied to the
states. City of Boerne v. Flores, 521 U.S. 507, 532-36 (1997).
Congress responded by passing RLUIPA, which “impose[d]
the same general test as RFRA” on state prison practices and
zoning regulations. Hobby Lobby Stores, Inc., 573 U.S. at 695;
42 U.S.C. §§ 2000cc, 2000cc-1. For similar reasons, we look
to First Amendment Free Exercise cases, particularly those
decided before Smith. RFRA “reinstat[ed] … the pre-Smith
substantive protections of the First Amendment,” Tanzin v.
Tanvir, 141 S. Ct. 486, 492 (2020), and the issue on which
RFRA and post-Smith First Amendment jurisprudence have
diverged – the legality of neutral and generally applicable rules
that burden religion – is not implicated here.
37
the law, it is not necessary that there be binding precedent from
this circuit so advising.”).
Mack directs our attention to a handful of cases to show
that his RFRA rights were clearly established, but none are
particularly pertinent. They primarily involve “failure[s] to
accommodate” an inmate’s religion by refusing to grant
requested dietary modifications. (Opening Br. at 22-23.) In
one sense, Mack has underplayed his hand. There can be
legitimate penological reasons for granting some but not all of
an inmate’s requests for what to serve at dinner. See Williams
v. Morton, 343 F.3d 212, 216-21 (3d Cir. 2003) (First
Amendment was not violated by affording Muslim inmates
vegetarian meals, which are permitted by their faith, but not
meals with halal meat). But the unrebutted evidence at this
juncture shows that the Defendants were deliberately trying to
disrupt Mack’s prayers and so to pressure him to give up a
central practice of his faith; no justification for that bigoted
behavior has even been attempted.
Also inapposite is Mack’s citation to an unreported
district court case, Pineda-Morales v. De Rosa, in which an
inmate was barred from engaging in more than a single prayer
service of the type his faith required. Pineda-Morales v. De
Rosa, 2005 WL 1607276, at *1, *11 (D.N.J. July 6, 2005). The
court there held that the abridgment of the plaintiff’s ability to
pray established a colorable RFRA violation. Id. at *12. The
RFRA violation in Pineda-Morales, however, was of a
different type than the one here. The Defendants in the present
case pressured Mack to stop praying by disturbing his daily
prayers, as well as harassing and mocking him for his faith;
they did not enact an outright prohibition on the type of prayer
in which he sought to engage.
38
Having considered the cases Mack cites, we cannot say
they include “factually analogous” binding precedent, or
amount to a “robust consensus” of persuasive authority, that
conduct like the Defendants’ was unlawful. Peroza-Benitez,
994 F.3d at 165. Nevertheless, the facts do present a violation
of RFRA that appears “so obvious,” even in the absence of
closely analogous precedent, “that every objectively
reasonable government official facing the circumstances
would know that the [Defendants’] conduct … violate[d]
federal law when [they] acted.” Schneyder, 653 F.3d at 330(internal quotation marks omitted). In a case like this, “broad
principle[s] of law” suffice to give fair warning to a reasonable
officer that the conduct at issue is illegal. Id. “A public
official,” after all, “does not get the benefit of ‘one liability-
free violation’ simply because the circumstance of his case is
not identical to that of a prior case.” Peroza-Benitez, 994 F.3d
at 166.
We are convinced that it should be clear to any
reasonable correctional officer that, in the absence of some
legitimate penological interest, he may not seek to prevent an
inmate from praying in accordance with his faith. Under
RFRA, an officer may not “put[] substantial pressure on an
adherent [of a religious faith] to substantially modify his
behavior and to violate his beliefs.” Mack II, 839 F.3d at 304.
Whether pressure is substantial turns on “the intensity of the
coercion applied by the government to act contrary to [one’s]
beliefs.” Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114,
1137 (10th Cir. 2013), aff’d sub nom. Burwell v. Hobby Lobby
Stores, Inc., 573 U.S. 682 (2014). Both direct and indirect
burdening of religion are prohibited. Washington v. Klem, 497
39
F.3d 272, 279 (3d Cir. 2007) (quoting Thomas v. Rev. Bd. of
Ind. Emp. Sec. Div., 450 U.S. 707, 717-18 (1981)).
Any deliberate interference with prayer is suspect,
given the crucial role that prayer – in one form or another –
plays in so many religious faiths. “Prayer unquestionably
constitutes the ‘exercise’ of religion.” Sause v. Bauer, 138 S.
Ct. 2561, 2562 (2018). The guarantee of free exercise of
religion encompasses “not only the right to harbor religious
beliefs inwardly and secretly. It does perhaps its most
important work by protecting the ability of those who hold
religious beliefs of all kinds to live out their faiths in daily life
through ‘the performance of (or abstention from) physical
acts.’” Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2421
(2022). Such acts unquestionably include a person “praying
quietly” “briefly and by himself.” Id. at 2422. The freedom to
pray is in fact integral to the free-exercise jurisprudence that
RFRA absorbed. See Engel v. Vitale, 370 U.S. 421, 434-35
(1962) (noting that among the founders were men who had
“faith in the power of prayer,” and “led the fight for adoption
of” the First Amendment to try to “put an end to governmental
control of religion and of prayer”); cf. United States v. Ballard,
322 U.S. 78, 87 (1944) (Under the Constitution, “[m]an’s
relation to his God was made no concern of the state. He was
granted the right to worship as he pleased and to answer to no
man for the verity of his religious views.”).
“[G]overnment actions intentionally discriminating
against religious exercise … serve no legitimate purpose.”
Brown v. Borough of Mahaffey, Pa., 35 F.3d 846, 850 (3d Cir.
1994). Not surprisingly, “cases which address acts … which
target religious activity” are “rare.” Id. at 849; see also Church
of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.
40520, 523 (1993) (“The principle that government may not enact
laws that suppress religious belief or practice is so well
understood that few violations are recorded in our opinions.”).
In other words, an intentional effort “to suppress … religious
worship” for that purpose alone is plainly impermissible,
Lukumi, 508 U.S. at 540, and worship plainly includes
prayer. 19 That prohibition on suppressing prayer does not stop
at the jailhouse doors. See Cruz v. Beto, 405 U.S. 319, 322 n.2
(1972) (“[R]easonable op[p]ortunities must be afforded to all
prisoners to exercise the religious freedom guaranteed by the
First … Amendment without fear of penalty.”); Gittlemacker
v. Prasse, 428 F.2d 1, 4 (3d Cir. 1970) (“[C]ourts have not
hesitated to intervene where prison officials have unreasonably
attempted to curtail the practice of religion by prison
inmates.”).
The long-standing history and force of those general
principles lead us to conclude that, during the time at issue, it
was clearly established that a correctional officer was
19
Of course, officers do not violate RFRA if their
actions are the least restrictive means of furthering a
compelling government interest. 42 U.S.C. § 2000bb-1(b).
Additionally, in some circumstances, under the First
Amendment, the government need only show a lesser
“legitimate” interest to justify intrusions on free exercise. E.g.,
O’Lone v. Estate of Shabazz, 482 U.S. 342, 344-45, 349-50
(1987) (prison officials may not interfere with inmate prayer
unless their actions are “reasonably related to legitimate
penological interests”). But no matter the circumstance, the
government must have some proper justification for interfering
with an inmate’s prayer.
41
forbidden to pressure an inmate to forego engaging in prayer,
absent justification by a compelling government interest.
While offering no justification whatsoever for their actions, the
Defendants resist that conclusion. They instead argue that the
caselaw at the time of their actions was too unsettled to clearly
establish a violation. But their argument is based on the
erroneous presumption that their preferred framing of the facts
and inferences must be accepted. They cite a number of cases
in which district courts held that threats or harassment toward
inmates did not substantially burden religion. E.g., Brown v.
Department of Corr. Pa., 2007 WL 4322980, at *15 (W.D. Pa.
Aug. 29, 2007) (concluding officer’s “alleged mere verbal
threat” that he would put inmate in administrative custody if he
persisted in his religious practices did not impose a substantial
burden), aff’d, 265 F. App’x 107 (3d Cir. 2008). 20 Analogizing
20
See also Madison v. Kilbourne, 2006 WL 2037572,
at *4 (W.D. Va. July 18, 2006) (“allegations that certain
officers taunted [an inmate] and ate his meals in front of him
also fail to state any claim” under the First Amendment or
RLUIPA), vacated in part on other grounds, 228 F. App’x 293(4th Cir. 2007); Mallory v. Winchester, 2006 WL 3714838, at
*2 (N.D. Ind. Dec. 12, 2006) (concluding that officers’ “rude
and hateful comments about Islam and [prisoner’s] practice of
it” were “unprofessional and irreverent” but did “not violate
either the First Amendment or RLUIPA”); Rouse v. Caruso,
2007 WL 209922, at *6 (E.D. Mich. Jan. 24, 2007) (no
RLUIPA claim against officer who “disparaged [plaintiff’s]
religious beliefs” and “harassed him based on his religious
beliefs,” because “[m]ere verbal harassment does not embody
the type of coercive pressure which amounts to a substantial
burden on religious exercise”).
42
to those cases, however, misconstrues the RFRA violation at
issue here. As previously discussed, Mack was not merely
mocked or harassed. He says that Roberts and Venslosky also
deliberately and repeatedly disrupted his attempts to complete
his daily prayers, and he stopped praying at the times required
by his faith. 21 The cases the Defendants cite may show a lack
21
We, again, reject the Dissent’s assertion that the
unlawfulness of the Defendants’ conduct “does not follow
immediately” from the legal propositions we have just
discussed. (Dissent at 4 (quoting District of Columbia v.
Wesby, 138 S. Ct. 577, 590 (2018)).) The Defendants
specifically acknowledge that pre-RFRA case law is properly
considered in determining whether their conduct violates the
clearly established religious exercise law that RFRA absorbed.
More than 35 years ago the Supreme Court made clear that
prison officials may not interfere with inmate prayer unless
their actions are “reasonably related to legitimate penological
interests[.]” O’Lone, 482 U.S. at 344-45, 349-50. Simply put,
there is no logical conundrum about whether the law permits
prison officials to wage a concerted campaign, for no
legitimate reason, to stop an inmate from praying. That has
been placed beyond reasonable debate for decades. RFRA
allows a compelling government interest to justify
impingement on religious exercise, but that does the
Defendants no good, as they offer no explanation whatsoever
for their actions. Indeed, animosity towards Muslims is the
only basis for the officers’ behavior discernible on the record
before us, which is patently not a legitimate governmental
interest, penological or otherwise. And the Defendants do not
contend it is.
The Dissent also argues that the Defendants were not
put on notice that the conduct they engaged in rose to the level
43
of settled law as to whether disparaging remarks alone are
actionable, but they shed no light on the RFRA analysis as to
deliberate interference with prayer.
of a substantial burden. As an initial matter, none of the parties
contend that the Defendants’ conduct is not a substantial
burden on Mack’s rights. We held Mack’s pro se allegations
satisfied the standard for a substantial burden at the motion to
dismiss stage. Mack II, 839 F.3d at 304. The District Court
reached the “same conclusion” based on the summary
judgment record, see Mack v. Stevens, 2018 WL 4375083, at
*5 (W.D. Pa. Sept. 13, 2018), and, as we have explained, the
Defendants do not contend the District Court got that wrong.
See supra at Section II.B.1. Given the facts as we must take
them at this stage of the proceedings, we cannot accept the
notion that there was anything unclear about whether the
Defendants could lawfully pursue a prolonged campaign to
prevent Mack from praying. The Defendants have made no
effort to show qualified immunity is appropriate on the present
facts and, so, have not discharged their burden.
Viewed in the light most favorable to Mack, the facts
are that the Defendants actually meant for their actions to be a
substantial burden on Mack’s prayers. They wanted him to
stop, and he did. Of course, their subjective intent does not
create the substantial burden. Contrary to the Dissent’s
suggestion, that is not why we raise the point. The extent of
the burden imposed is relevant to whether we are dealing with
a close case. That the Defendants set out to prevent worship
and accomplished that end is evidence of the extent of the
burden, particularly when, at the summary judgment stage, we
must view the evidence in the light most favorable to Mack.
44
The Defendants also assert that there is a “wide gap”
between their actions and those in the cases that have been
found to be “obvious” violations of law. (Answering Br. at 18-
19 (citing Taylor v. Riojas, 141 S. Ct. 52, 53-54 (2020) (per
curiam) (inmate left in a sewage-filled cell for six days); and
Hope v. Pelzer, 536 U.S. 730, 734-35, 741 (2002) (prisoner
handcuffed to hitching post, without a shirt, under the sun for
seven hours, with scant water or bathroom breaks)).) It is self-
evident, of course, that Mack’s experiences – bad as they were
– do not rise to the level of cruelty displayed in Eighth
Amendment cases, in which the nature of the violation itself
involves “cruel and unusual punishment.” U.S. CONST.
amend. VIII. Similarly, obviousness is often asserted in Fourth
Amendment cases involving the use of excessive force. E.g.,
Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (applying
obviousness standard to analyze excessive force claim); see
also El v. City of Pittsburgh, 975 F.3d 327, 341 (3d Cir. 2020)
(“We have concluded that cases [of excessive force] are
obvious, and that general standards clearly establish a right, in
extreme situations such as when lethal force is used or when a
high school teacher sexually harassed and assaulted students.”
(citations omitted)).
RFRA violations, meanwhile, are based on substantial
burdens on religion, which typically do not entail the brutality
and physical abuse on display in the worst Fourth Amendment
and Eighth Amendment cases. So, it may well be that an
“obvious” RFRA violation will involve less viscerally
abhorrent conduct than an infringement on some other
constitutional right. But that misses the point. The question is
whether “broad rules and general principles” make the
existence of the right “so manifest that it is clearly established.”
Schneyder, 653 F.3d at 330. That in turn may depend on
45
whether the violation is obvious when judged against the
particular standards applicable to the issue under examination.
And the fact that there have been “few violations” of religious
liberty involving the “rare” targeting of an individual based on
his religious practices, Lukumi, 508 U.S. at 523; Brown, 35
F.3d at 849-50, indicates that the illegality of such conduct is
generally obvious enough to be understood even without
judicial guidance. 22 Cf. Safford Unified Sch. Dist. No. 1 v.
22
The Dissent expresses two additional concerns about
our obviousness analysis that warrant a response. First, our
colleague observes that we “cite[] not a single case where
courts have found RFRA or Free Exercise violations
sufficiently ‘obvious’ to overcome qualified immunity.”
(Dissent at 5.) He does not, however, argue that the rules of
qualified immunity are different for RFRA and Free Exercise
claims than for other kinds of claims. It is well-settled that an
obvious case is just that and, consequently, needs no prior
precedent to justify the conclusion that follows. We do not
understand our colleague to be saying that some critical mass
of earlier obvious violations of a particular federal right must
be found in the case law before an obvious violation of that
right can be recognized and condemned. Were that so, of
course, there could be no obvious cases. Moreover, it would
be odd to expect much binding precedent about obvious RFRA
violations, since the Supreme Court has only recently
recognized that RFRA allows for litigants “to obtain money
damages against federal officials in their individual
capacities,” Tanzin v. Tanvir, 141 S. Ct. 486, 493 (2020), and
we are only now, in this opinion, holding that RFRA allows for
qualified immunity. In addition, as to free exercise rights more
generally, the most obvious cases will rarely arise because it is
mercifully rare that government officials so brazenly seek to
46
Redding, 557 U.S. 364, 377 (2009) (“The unconstitutionality
of outrageous conduct obviously will be unconstitutional, this
being the reason … that ‘[t]he easiest cases don’t even arise.’”
(alteration in original) (quoting K.H. v. Morgan, 914 F.2d 846,
851 (7th Cir. 1990) (Posner, J.))).
Our conclusion that it was clearly established, at the
time of the Defendants’ actions, that there was a right to pray
free of substantial, deliberate, repeated, and unjustified
suppress worship and prayer. So we are not the least surprised
that examples of obvious violations of religious exercise rights
are in short supply, and we hope that remains the case.
Second, our dissenting colleague observes that, as
reprehensible as the Defendants’ behavior may have been, it
does not “show the ‘extreme circumstances’ or ‘particularly
egregious facts’ indicative of the obvious case.” (Dissent at 5
(quoting Taylor v. Riojas, 141 S. Ct. 52, 53-54 (2020) (per
curiam).) Having already discussed the qualified immunity
standard at length, including what is required for a finding of
obviousness, it should be sufficient to note that the Supreme
Court did not say that egregiousness is a requirement for a
finding of obviousness or that the obviousness standard had
changed because of Taylor. Taylor stands for the unsurprising
conclusion that leaving an inmate in a sewage-filled cell for six
days violates the Eighth Amendment. Taylor, 141 S. Ct. at 53-
54. To say that an obvious case is also an egregious one is not
to say that only egregious cases present obvious violations.
And, while being denied the right to pray may not seem an
egregious deprivation to everyone, for those who are devout it
may be very egregious indeed. A wound need not be physical
to be serious.
47
disruption by prison officials leads us to vacate the grant of
summary judgment. But it does not foreclose the Defendants’
qualified immunity defense from being raised at trial, since the
Defendants have only conceded Mack’s version of events for
purposes of pressing their summary judgment motion. See
Reedy v. Evanson, 615 F.3d 197, 224 n.38 (3d Cir. 2010) (“Our
decision on qualified immunity … is solely that it is not
warranted at the summary judgment stage in this case.
Qualified immunity remains a viable defense, though its
applicability cannot be finally determined until after the facts
have been sorted out at trial.”). The Defendants may still seek
qualified immunity at trial, based on the facts proven then.
III. CONCLUSION
For the foregoing reasons, we will vacate the District
Court’s grant of summary judgment and remand for further
proceedings consistent with this opinion.
48
HARDIMAN, Circuit Judge, dissenting.
The Supreme Court has repeatedly admonished courts not
to define rights too broadly when determining whether law was
“clearly established” for purposes of qualified immunity. In all
but the rare case, the Court has also required factually
analogous precedent that would render the violation beyond
debate. Because those imperatives require us to affirm the
judgment of the District Court, I respectfully dissent.
I
I agree with my colleagues on many points. Though a
qualified immunity defense is available under the Religious
Freedom Restoration Act (RFRA), we should not “disturb the
District Court’s conclusion that the Defendants unlawfully
infringed Mack’s religious liberty.” Maj. Op. 28. Mack’s
prayers are certainly religious exercise. Maj. Op. 27. And
Mack’s definition of the right Defendants violated is “far too
broad and generic” for qualified immunity purposes. Maj. Op.
30.
I disagree with my colleagues that Defendants and the
District Court framed the right too narrowly. The Supreme
Court’s demanding standard requires the right to be defined
with “a high degree of specificity.” D.C. v. Wesby, 138 S. Ct.
577, 590 (2018) (cleaned up). Even more importantly for
Mack’s appeal, it also requires the right to be tailored to “the
specific context of the case.” Tolan v. Cotton, 572 U.S. 650,
657 (2014) (quoting Brosseau v. Haugen, 543 U.S. 194, 198
(2004)).
Mack described Defendants’ disruptions of his prayer
while he worked at the prison commissary as making “noises
1
and jokes,” engaging in “loud talking,” and “kicking boxes”
around. App. 132, 156. He also testified he could “always
make [his] prayer up at the end of the day,” which “still [was]
consistent with [his] religion,” App. 124, and with his imam’s
advice. App. 178–79. Relying on Mack’s version of events, the
District Court properly defined the right with specificity as the
right to be free from “indirect, mostly verbal, conduct that
causes a person to voluntarily cease exercising a tenet of his
faith.” Mack v. Stevens, 2021 WL 2982060, at *5 (W.D. Pa.
July 15, 2021). This framing hews closely to Mack’s
deposition testimony, though it appropriately diverges from
Mack’s briefing on appeal. See Maj. Op. 32 n.15.
The right articulated in the majority opinion—“the right to
pray free of substantial, deliberate, repeated, and unjustified
disruption by prison officials”—is too general. Maj. Op. 35. It
omits two important facts from Mack’s testimony: (1) he
voluntarily ceased praying at work; and (2) he believed doing
so was consistent with his religious obligations. Without these
facts, the right is not tailored to the “specific context” of
Mack’s case. Tolan, 572 U.S. at 657 (cleaned up); see also
Kemp v. Liebel, 877 F.3d 346, 352 (7th Cir. 2017) (finding “the
right of prisoners not to have their religious practices interfered
with and prevented absent a legitimate penological basis” too
broad). The majority opinion concedes as much when it states
that its generalized right suffices because this is an obvious
case. Maj. Op. 32–33 n.15. For reasons I explain below, it is
not.
II
Even accepting the majority’s articulation of the right at
issue, I would not find it clearly established here. The majority
claims we “take a ‘broad view’ of what makes a right clearly
2
established, which can be satisfied ‘even without a precise
factual correspondence between the case at issue and a
previous case.’” Maj. Op. 37 (quoting Peroza-Benitez v. Smith,
994 F.3d 157, 166 (3d Cir. 2021)). Although the Supreme
Court recognizes there need not be “a case directly on point,”
it still requires the right to “have a sufficiently clear foundation
in then-existing precedent” such that it is “settled law.” Wesby,
138 S. Ct. at 589–90 (cleaned up). And “[t]he precedent must
be clear enough that every reasonable official would interpret
it to establish the particular rule the plaintiff seeks to apply.”
Id. at 590. This is an extremely high bar. Following our
decision in Peroza-Benitez, the Supreme Court reemphasized
that, absent the obvious case, a lack of sufficient factual
similarity entitles an officer to qualified immunity. Rivas-
Villegas v. Cortesluna, 142 S. Ct. 4, 8–9 (2021) (per curiam).
The cases Mack cites, as the majority notes, are not
factually analogous. And the majority identifies no other
precedent—from our Court or elsewhere, before or after RFRA
was enacted—sufficiently similar to deny Defendants qualified
immunity. So “this case presents a unique set of facts and
circumstances,” which “alone” provides “an important
indication . . . that [Defendants’] conduct did not violate a
‘clearly established’ right.” White v. Pauly, 580 U.S. 73, 80
(2017) (per curiam) (cleaned up).
The majority sidesteps the absence of on point caselaw by
deeming the RFRA violation “so obvious” that every
objectively reasonable officer would know that Defendants’
conduct violated federal law. Maj. Op. 39 (quoting Schneyder
v. Smith, 653 F.3d 313, 330 (3d Cir. 2011). I agree with my
colleagues that the obvious case does not demand factually
analogous precedent, but it still requires that the law be
“sufficiently clear” such that “every reasonable official would
3
understand that what he is doing is unlawful.” Wesby, 138 S.
Ct. at 589 (cleaned up). The majority identifies general RFRA
and Free Exercise principles—that an official may not put
substantial pressure on an individual to substantially modify
his behavior and violate his religious beliefs, that both direct
and indirect burdens on religion are prohibited, and so on—as
evidence that Defendants violated clearly established law. Maj.
Op. 39–41. But the unlawfulness of Defendants’ conduct in
this case “does not follow immediately” from these legal
propositions. Wesby, 138 S. Ct. at 590 (quoting Anderson v.
Creighton, 483 U.S. 635, 641 (1987)). As the majority points
out, whether pressure is “substantial” turns on the “intensity of
the coercion applied,” Maj. Op. 39, which is a fact-intensive
inquiry. See Adkins v. Kaspar, 393 F.3d 559, 571 (5th Cir.
2004) (explaining whether government action imposes a
substantial burden on religious exercise is a “case-by-case,
fact-specific inquiry”). While every reasonable officer would
know that purposefully disrupting an inmate’s ability to pray is
wrong, he would not know whether the level of disruption here
imposed a substantial burden on religion. So this case is not
the “rare” obvious one. Wesby, 138 S. Ct. at 590.
That Defendants acted out of anti-Muslim animus and
“actually meant for their actions to be a substantial burden on
Mack’s prayers,” Maj. Op. 44 n.21, doesn’t show that they
violated clearly established law, either. Defendants cannot
impose a “substantial burden” under RFRA merely by willing
it—“whether a burden is substantial under RFRA is a question
of law.” Real Alts., Inc. v. Sec’y Dep’t of Health & Hum. Servs.,
867 F.3d 338, 356 (3d Cir. 2017) (cleaned up). And while an
inquiry into a defendant’s subjective state of mind may be
appropriate “where such state of mind is an essential element
of the underlying civil rights claim,” Maj. Op. 36 n.17, the
4
RFRA substantial burden inquiry is “objective.” Real Alts.,
Inc., 867 F.3d at 356.
The majority opinion cites not a single case where courts
have found RFRA or Free Exercise violations sufficiently
“obvious” to overcome qualified immunity. My colleagues
claim it “would be odd to expect much binding precedent about
obvious RFRA violations” because the Supreme Court only
recently recognized a cause of action under RFRA for damages
against officials in their individual capacity. Maj. Op. 46 n.22.
But damages “have always been available under § 1983 for
clearly established violations of the First Amendment.” Tanzin
v. Tanvir, 141 S. Ct. 486, 492 (2020). And the majority relies
on pre-RFRA Free Exercise caselaw to argue that the violation
here was clearly established. Maj. Op. 43 n.21. So while no
“critical mass of earlier obvious violations” is required, Maj.
Op. 46 n.22, the absence of any obvious religious exercise
violations suggests we should hesitate to find one here.
Finally, the majority dismisses the stark differences
between this appeal and other “obvious” cases by positing that
obvious RFRA violations will “involve less viscerally
abhorrent conduct” than infringement of other constitutional
rights. Maj. Op. 45. But even accepting that proposition,
Mack’s case still does not clear the obviousness hurdle. Mack
failed to show the “extreme circumstances” or “particularly
egregious facts” indicative of the obvious case. Taylor v.
Riojas, 141 S. Ct. 52, 53–54 (2020) (per curiam). That reality
does not excuse Defendants’ reprehensible behavior. It means
only that, as of 2009, it was not “obvious” that disrupting
Mack’s prayers in the prison workplace by making loud noises
and jokes substantially burdened his religion.
* * *
5
For the reasons stated, I would affirm the District Court’s
summary judgment for Defendants on qualified immunity
grounds.
6