Souhair Khatib, Who Had Her Hijab Removed in OC Jail, to Get Her Day in Appeals Court

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?”

Leave a Reply

Your email address will not be published. Required fields are marked *