Metropolitan News-Enterprise


Friday, March 28, 2008


Page 1


Judge Allows Suit Over Detainee’s Headscarf to Proceed


By STEVEN M. ELLIS, Staff Writer


The U.S. District Court for the Central District of California has kept alive a lawsuit by a Muslim woman who claims that officers of the Orange County Sheriff’s Department violated her constitutional rights when they made her remove her headscarf while she was being held in a courthouse holding facility.

U.S. District Judge David O. Carter on Wednesday ruled that Souhair Khatib had sufficiently stated a claim that the county violated her rights under the Free Exercise Clause to survive a motion to dismiss for failure to state a claim, but rejected Khatib’s request for heightened scrutiny of the county’s actions under the Religious Land Use and Institutionalized Persons Act of 2000, ruling that the act does not apply to courthouse holding facilities.

Khatib, a U.S. citizen who emigrated from Lebanon, and her husband, Amro Khatib, were at the Orange Superior Court’s north courthouse on Nov. 1, 2006 seeking an extension of time to complete community service ordered after they pled guilty to misdemeanor charges of welfare fraud when the Superior Court revoked their probation and had them taken into custody.

A male officer handcuffed Souhair Khatib and led her to a courthouse holding facility where she was ordered to hand over her belongings and remove her headscarf, or hijab.

Khatib, who has practiced the Islamic faith since birth and who says her beliefs compel her to wear a hijab whenever she is in the company of men who are not members of her immediate family, initially refused, she alleged in her complaint. She complied when a female officer told her that the scarf could be used against her as a choking weapon and that male officers would remove it if she did not do so voluntarily, she said.

When Khatib was later directed to return to the courtroom, officers continued to prohibit her from wearing the scarf, and Khatib claimed that she was “humiliated and ashamed to be seen without her hijab” in the presence of men, including men from her mosque who had come to offer support.

The Superior Court extended the time in which Khatib and her husband were required to complete their community service and Khatib was returned to the holding area and her belongings returned, but she was not allowed to reaffix her hijab until leaving the holding area, the complaint alleges.

Khatib brought suit against the county, former Sheriff Michael S. Carona, and Sheriff’s Department Captain Brian Cossairt, alleging that the defendants’ actions violated her constitutional rights and constituted an intentional infliction of emotional distress. She also requested equitable relief prohibiting the county from compelling her to remove the hijab in the future, and that the court apply strict scrutiny to her constitutional claim under the RLUIPA.

On the defendants’ motion to dismiss, Carter ruled that Khatib stated a claim against the county under the Free Exercise Clause because she sufficiently alleged state action burdening her sincerely held religious beliefs, and that Khatib’s allegations were sufficient to establish the elements of a claim for intentional infliction of emotional distress because “[r]easonable people could certainly differ on the question of whether this conduct was ‘extreme and outrageous.’”

However, Carter agreed with the defendants that Khatib lacked standing to seek equitable relief because she could not show any real and immediate danger that she would be compelled to remove the hijab again, and that strict scrutiny did not apply to the county’s actions because a courthouse holding facility is not an “institution” under the RLUIPA.

The RLUIPA provides in part that “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in [the Prison Litigation Reform Act of 1995], even if the burden results from a rule of general applicability, unless the government demonstrates that the imposition of the burden on that person [meets strict judicial scrutiny].”

Examining the nature of courthouse holding facilities, Carter said that they fell into a different category than traditional jails or prisons.

“Simply put,” he wrote, “an inmate’s stay in a courthouse holding facility is generally temporary and transitory. For a number of reasons, constant movement within holding facilities makes unlimited exercise of religious and expressive freedoms impractical.

“Staff at such facilities do not have the luxuries that make such freedoms feasible in longer-term institutions, to which RLUIPA plainly applies. As a result, the Court cannot conclude that Congress intended the [Prison Litigation Reform Act of 1995] or RLUIPA to apply to courthouse facilities.”

Carter made clear that his ruling did not preclude a normal First Amendment challenge to the practices of courthouse holding facilities.

However, he did grant Carona and Cossairt’s motion to dismiss Khatib’s Free Exercise claim against them on the grounds that they held qualified immunity because the right to wear religious headgear in custody was not “clearly established.” But he said the pair were not entitled to dismissal of the state tort claim based on statutory immunity because Khatib had sufficiently alleged that her injury was caused by their negligent and wrongful conduct.

Carter declined to address Khatib’s claim that she was entitled to monetary damages under Art. 1, Sec. 4 of the California Constitution—which guarantees free exercise and enjoyment of religion without discrimination—because the question whether the provision was self-executing in the absence of an effectuating statute presented both a novel and complex issue of state law.

The case is Khatib v. County of Orange, No. SACV 07-1012.


Copyright 2008, Metropolitan News Company