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Tenth Circuit Denies Qualified Immunity to Colorado Prison Officials Who Shut Down Native American Religious Activities

by Jayson Hawkins

On July 21, 2021, the U.S. Court of Appeals for the Tenth Circuit affirmed the ruling of a lower court in Colorado that denied a motion by state prison officials to dismiss a prisoner’s civil rights claim on the grounds that they enjoyed qualified immunity (QI).

Officials with the state Department of Corrections (DOC) allowed a group of Native American prisoners to participate in “sweat lodge” ceremonies that included tobacco use. But after finding tobacco on a prisoner who was not part of the group, DOC imposed a nine-day lockdown on the group members.

One of the group, Charles Williams, filed suit pro se in U.S. District Court for the District of Colorado, accusing DOC of violating his right to free exercise of his Native American religion by denying him religious services during the lockdown and banning the use of tobacco during sweat lodge ceremonies for a month. That petition was almost entirely dismissed on March 30, 2020. See: Williams v. Borrego, 2020 U.S. Dist. LEXIS 54730 (D. Colo.).

With the assistance of attorneys David J. Felder of Jones Day in Los Angeles, Cynthia A. Barmore and Benjamin C. Mizer of Jones Day in Washington, D.C., as well as Samuel Weiss of Rights Behind Bars in Washington, D.C., Williams appealed.

Taking up the case, the Tenth Circuit said that in order to reach a decision on the defendants’ QI, it must first address two issues: (1) Does the alleged incident, if viewed in a light favorable to the plaintiff-prisoner, place a substantial burden on the free exercise of his religion, and (2) was the law clearly established at the time when the incident took place?

To state a constitutional claim, the Court said, a prisoner must allege facts that show officials substantially burdened a sincerely held religious belief. See: Kay v. Bemis, 500 F.3d 1214 (10th Cir. 2007). The denial of Native American religious services had also been previously held to be a substantial burden by the Tenth Circuit. See: Yellowbear v. Lambert, 741 F. 3d 48 (10th Cir. 2014).

The defendants argued that because the ban for Williams was temporary, it did not rise to the level of a substantial burden. But the Court countered this claim on two fronts. The first was a previous ruling that held temporary bans could give rise to a substantial burden. See: Makin v. Colo. Dep’t of Corr., 183 F.3d 1205 (10th Cir. 1999). Perhaps even more damaging to the defendants’ case was the fact, repeatedly noted by the Court, that Christian and Muslim services continued during the lockdown imposed on Williams and his co-religionists.

Having found a substantial burden on Williams’ free exercise of religion, the Court moved on to the question of whether the right at issue was clearly established. Tenth Circuit case law shows that a right is considered clearly established when it is apparent from a precedent or the clear weight of authority from other courts. See: Toevs v. Reid, 685 F.3d 903 (10th Cir. 2012). Because the rights at issue here had previously been established in both Yellowbear and Makin, the Court held that defendants knew or should have known about them and could not therefore assert a QI defense. See: Williams v. Hansen, 5 F.4th 1129 (10th Cir. 2021).

Thus the suit was sent back to the district court, which appointed Williams pro bono counsel on January 6, 2022, in preparation for a trial to be held later in the year, where he will be represented by attorneys Timothy Reynolds and David Miller of Bryan Cave Leighton Paisner LLP. See: Williams v. Borrego, USDC (D. Colo.), Case No. 1:19-cv-00371-RBJ-MEH. 

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Related legal case

Williams v. Borrego