Metropolitan News-Enterprise


Tuesday, May 4, 2010


Page 1


Court Dismisses RLUIPA Claim Over Headscarf Removal


By STEVEN M. ELLIS, Staff Writer


Federal law protecting the religious exercise of institutionalized persons does not apply to courthouse holding facilities, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

A split three-judge panel threw out a Muslim woman’s claim that Orange County Sheriff’s Department officers violated the Religious Land Use and Institutionalized Persons Act when they made Souhair Khatib remove her headscarf while she was being held in such a facility.

Khatib sued the county and some of its officials after she was twice forced to remove her hijab in public while being held in an Orange Superior Court holding cell pending disposition of an alleged probation violation.

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

When Souhair Khatib was processed into a holding cell, officers required her to remove her headscarf for security reasons. 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, objected, but complied with the request.

Later that day, the Superior Court judge returned Khatib to his courtroom, reinstated her probation, gave her additional time to complete her community service and awarded her credit for time served in the “Orange County Jail.” She was then returned to the holding area, from which she was released later that afternoon.

Khatib sued alleging the defendants’ actions violated her constitutional rights and constituted an intentional infliction of emotional distress.

U.S. District Court Judge David O. Carter of the Central District of California ruled in 2008 that Khatib stated a claim under the Free Exercise Clause because she sufficiently alleged state action burdening her sincerely held religious beliefs. He also concluded that her allegations were sufficient to establish the elements of a claim for intentional infliction of emotional distress.

But Carter said Khatib lacked standing to seek equitable relief because she could not show a real and immediate danger that she would be compelled to remove the hijab again. He further dismissed the RLUIPA claim, writing that the cell was not an “institution” as defined by the act.

The act prohibits any government from imposing “a substantial burden on the religious exercise of a person residing in or confined to an institution,” which it defines, in part, as “any facility or institution…which is owned, operated, or managed by, or provides services on behalf of any State or political subdivision of a State; and…which is…a jail, prison, or other correctional facility; [or]…a pretrial detention facility.”

On appeal, Senior Judge Stephen S. Trott, joined by Judge Kim McLane Wardlaw, agreed with Carter, opining that courthouse holding cells are not correctional facilities. Trott also said the cells were not pretrial detention facilities because prisoners were only temporarily detained there during proceedings.

He then concluded that Congress intended the act only to apply to those who reside in institutions, and said there was nothing in the legislative history to suggest it was intended to cover persons temporarily in transitional facilities.

Chief Judge Alex Kozinski, however, dissented.

“Can we honestly say that a mammoth facility in the bowels of the Santa Ana courthouse, whose main purpose is to hold inmates while awaiting trial, cannot possibly be a pretrial detention facility?” he wrote. “Is that really like calling a fish a fowl or an elephant a donkey?”

Pointing to Congress’ statement that the act “shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution,” he added:

“It seems to me that when Congress goes to the trouble of telling us how to construe a statute, and uses such phrases as ‘broad protection’ and ‘the maximum extent permitted,’ we need to pay close attention and do as Congress commands.”

Becki F. Kieffer of Troutman Sanders in Irvine represented Khatib, and said her client was “obviously disappointed” by the opinion. She said she thought Kozinski’s dissent was “very strong and better reasoned,” but added that no decision had been made whether to appeal or seek reconsideration.

The defendants were represented on appeal by David D. Lawrence and Christina M. Sprenger of Lawrence Beach Allen & Choi in Santa Ana, who could not be reached for comment.

The case is Khatib v. County of Orange, 08-56423.


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