Metropolitan News-Enterprise


Tuesday, September 14, 2010


Page 1


Ninth Circuit Grants En Banc Review in Headscarf Case


By a MetNews Staff Writer


 The Ninth U.S. Circuit Court of Appeals yesterday agreed to decide en banc whether Orange County Sheriff’s Department officers violated a Muslim woman’s constitutional rights when they made her remove her headscarf while she was being held in a courthouse holding facility.

Chief Judge Alex Kozinski, in a brief order, said that a majority of the court’s  judges—with the exception of Judge Stephen Reinhardt, who did not participate in deliberations or the vote—had agreed to en banc review in Khatib v. County of Orange, 08-56423.

A split three-judge panel ruled in May that the Religious Land Use and Institutionalized Persons Act did not apply to courthouse holding facilities in a suit by Souhair Khatib, a U.S. citizen who emigrated from Lebanon.

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

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, and that her allegations were sufficient to establish the elements of a claim for intentional infliction of emotional distress. But he said she 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.

Carter also dismissed Khatib’s RLIUIPA claim on the basis that the cell was not an “institution” under the act.

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

But Kozinski dissented, pointing to Congress’ statement that the act is to be construed broadly.

He asked:

“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? Is that really like calling a fish a fowl or an elephant a donkey?”


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