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[UPDATED] Souhair Khatib, Who Had Her Hijab Removed in OC Jail, Wins Appeal, Can Sue County

UPDATE, MARCH 16, 9:59 A.M.:

Here is a link to the actual Ninth Circuit appeals court decision:

Khatib v. County of Orange

UPDATE, MARCH 15, 4:24 P.M.: A Muslim woman who claims her constitutional rights were violated when Orange County sheriff's deputies forced her to remove her headscarf while she was being held in a courthouse holding facility can sue the county, an appeals court ruled today.

The full 11-judge panel of the Ninth Circuit in Pasadena found that U.S. District Judge David O. Carter improperly dismissed Souhair Khatib's lawsuit, which alleged violations of the Religious Land Use and Institutionalized Persons Act (RLUIPA), a federal law designed to protect prisoners' religious freedom.

Courthouse News Service's Tim Hull has the scoop.

Khatib, a U.S. citizen who emigrated from Lebanon, and her husband pleaded guilty in June 2006 to a misdemeanor welfare crime and were ordered to perform 30 hours of community service each while on probation. When the couple went to court to ask for an extension of the community-service deadline, a judge revoked their probation and put them in holding cells, where deputies, citing security concerns, ordered Khatib to remove her headscarf, which is known as a hijab. She broke down and cried.

She was later dragged back before the judge without her hijab. The judge then extended the deadline and restored her probation. Khatib, noting her religion forbids her from exposing her head or neck to men outside her immediate family, sued Orange County and several officials for damages under RLUIPA.

Carter, who is based in Santa Ana, ruled in 2008 that Khatib's allegations were sufficient to establish the elements of a claim for intentional infliction of emotional distress under the Free Exercise Clause. However, the judge also ruled 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. And the judge dismissed Khatib's claim under RLUIPA on the grounds the cell was not an "institution" as written by Congress.

A three-judge panel split in Carter's favor last May, but the lone dissenter, Chief Judge Alex Kozinski, then stated in a brief order that he would take the matter to the full panel, leading to today's decision in Khatib's favor.

Judge M. Margaret McKeown, author of the court's lead opinion, stated the Santa Ana courthouse is an "institution" and a "jail" as defined in the federal act, and therefore Khatib's request for religious accommodation should have been honored. "The county argues that RLUIPA only affords protection to inmates at long-term facilities with residential capabilities," McKeown wrote. "This interpretation reads into the statute an additional qualification where none exists. The act does not include any temporal restriction on the term 'institution.' Nor should we import such a requirement, especially in light of the generous interpretative rule set forth by Congress."

"A Muslim woman who must appear before strange men she doesn't know, with her hair and neck uncovered in a violation of her religious beliefs, may feel shame and distress," Judge Ronald Gould wrote in his concurring opinion. "This is precisely the kind of 'mischief' RLUIPA was intended to remedy. A recognition of this very real harm helps inform our judgment on the scope of covered institutions. Under long-observed canons of statutory construction, and under the terms of RLUIPA itself, it is proper to construe the statute broadly to give effect to the religious protection intended by Congress."

The judges added that "other courthouse or detention facilities have unique characteristics that warrant individualized review."
 


ORIGINAL POST, SEPT. 14, 2010, 2:20 P.M.: The Ninth U.S. Circuit Court of Appeals granted a new hearing in the case of a Muslim woman who claims her constitutional rights were violated when Orange County sheriff's deputies forced her to remove her headscarf while she was being held in a courthouse holding facility.

Chief Judge Alex Kozinski states in a brief order that the court's judges had agreed to review Khatib v. County of Orange en banc, meaning the entire bench will hear the matter as opposed to a panel of judges.

The

San Francisco Chronicle

has the scoop.

A split three-judge panel ruled in May that the Religious Land Use and Institutionalized Persons Act (RLIUIPA) did not apply to courthouse holding facilities in a lawsuit brought by Souhair Khatib.

The U.S. citizen who emigrated from Lebanon and her husband pleaded guilty in June 2006 to a misdemeanor welfare crime and were ordered to perform 30 hours of community service apiece while on probation.

When the couple went to court to ask for an extension of the community service deadline, a judge revoked their probation and put them in holding cells, where deputies, citing security concerns, ordered Khatib to remove her headscarf, which is known as a hijab.

She was then dragged back before the judge without her hijab. The judge then extended the deadline and restored her probation.

Khatib, noting her religion forbids her from exposing her head or neck to men outside her immediate family, sued the County or Orange and several officials for damages.

U.S. District Court Judge David O. Carter in Santa Ana ruled in 2008 that Khatib's allegations were sufficient to establish the elements of a claim for intentional infliction of emotional distress under the Free Exercise Clause.

However, Carter also ruled 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. And the judge dismissed Khatib's RLIUIPA claim on the grounds the cell was not an "institution" under the act as written by Congress.

Two judges agreed with Carter on appeal, but Kozinski dissented, especially on the RLIUIPA point, writing, "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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