The societal and legal issues surrounding the wearing of religious garments have now reached into our jails. On March 20 th, 2014 Hennepin County Sheriff Richard Stanek announced that Hennepin County Jail will allow inmates to wear jail-issued headscarves, yarmulkes and kufi hats. These items will be allowed so long as there is no risk to safety and security. This decision is a change from the previous "case by case" basis policy used by the Jail. The Ramsey County Sheriffs also seem to be imposing a similar policy. This change by local law enforcement was spurred by reports out of the Sherburne County Jail. There, a Muslim woman convicted of terrorism charges was barred from wearing a headscarf while incarcerated. Further, there have been reports of Muslim women being given t-shirts in lieu of the ability to wear proper headscarves in jail. This policy shift has been applauded by law enforcement, Islamic and Jewish relations groups. However, this policy change raises numerous issues to explore.
First, will the jails allow inmates to wear other types of religious symbols? Currently, the Hennepin and Ramsey County jails do not allow any other types of religious items in their jails. (Also noteworthy is the existing policy of not allowing inmates to wear wedding rings.) This includes crucifixes on a chain and rosary beads. The policy is based on two things. (1) the jails believe that crucifixes and other types of religious jewelry have the ability to be used as weapons, and (2) these items may have some monetary value and thus be a source of conflict between inmates.
Taking these concerns at face value, it will be interesting to see how the new headwear policy is accomplished by the jails. For example, the jails have reserved the right to do away with headwear if it poses a safety and security risk. A safety risk would include situations wherein inmates become involved in disputes about who are and who are not allowed to practice their particular religious beliefs by wearing certain types of clothing and articles. For example, will a Christian be able to wear a cloth (non-metal) type of cross around their neck? Will a Buddhist be able to wear a civara (robe)? Will a Mormon be allowed to wear temple garments (a specific type of under-garment)? Such inmate conflicts might force the jails to retract the new policy and simply not allow any type of religious clothing or articles.
Second, will the new policy help the jails to avoid future civil rights litigation? For example, in 2012, the Pierce County Jail in Tacoma Washington settled a lawsuit brought against them by the ACLU regarding the failure to accommodate the religious needs of Muslim inmates. Settlement Protects Religious Freedom for Inmates in Pierce County Jail, ACLU (October 24, 2012), https://www.aclu.org/prisoners-rights/settlement-protects-religious-freedom-inmates-pierce-county-jail. Part of the settlement required the jail to allow inmates to wear kufis. Pierce County paid $200,000 in legal fees and costs as part of the settlement. The issue of kufis was just one facet of the settlement, however.
Another example is the case of Shepard v. Peryam, wherein the Florida court was confronted with a Muslim prisoner's right to participate in Islamic religious services, including wearing a kufi cap, using Islamic prayer beads, using an Islamic prayer rug, and following certain religious dietary restrictions. Shepard v. Peryam, 657 F. Supp. 2d 1331 (S.D. Fla. 2009).The court upheld the ban on all headwear but had an exception to allow yarmulkes to be worn when a rabbi would perform a prayer service. Id, at 1342. Thispolicy was upheld as there was no similar prayer service offered for Muslim inmates. Id . The court also upheld the courts policy regarding prayer beads. Id , at 1351. This is especially interesting to us when looking to see whether there will be a change with regards to Hennepin County's policy regarding crosses and rosary beads.
The policy upheld in Shepard was as follows: prayer beads would be allowed so long as they were "breakaway." Id. Thus, inmates would not be able to harm themselves or others with these beads. The inmates were requesting to use non-breakaway beads, claiming the prohibition on non-breakaway beads was a violation of their 1 st Amendment rights. Id. The court held that the use of breakaway beads was a proper substitution which still allowed for religious worship. Id. This was deemed the only policy which would serve both the religious needs of the prisoners and the safety concerns of the prison. Id. Further, the court found no constitutional violation stemming from the lack of Islamic religious services provided by the prison. Religious services would be allowed If a volunteer chaplain came to the jail and volunteered to perform Islamic religious services. Id¸at 1347. No chaplain had come to the jail volunteering to perform Islamic services. Id. Thus, no 1 st Amendment violation existed. Further, the jails policy of banning prayer rugs was upheld. Id, at 1357. The jail had a legitimate safety concern over the use of prayer rugs. Id. Further, there were other alternatives to the prayer rugs like jail towels available to the inmates. Id.
Finally, the Court found no constitutional violation in the jails revocation of the plaintiff's diet plan. Id, at 1352. The plaintiff originally was on a kosher diet and this diet plan was revoked after the plaintiff violated the terms of the diet (I.E. he ate non-kosher foods). Id. The diet the plaintiff was then subject to contained no pork or pork products. Id. Thus, it was not in violation of his Islamic faith. Could a similar policy be instituted in Hennepin County with regards to rosary beads and maybe even crucifixes?
Upon reviewing the case law it seems like the Hennepin and Ramsey jails' policy is ahead of the curve when it comes to Muslim dress in jails. Most previous cases in other jurisdictions have upheld the ban on Islamic headwear for one reason or another. But it appears that our local jails are trying to avoid litigation by accommodating Muslim dress issues. Still, questions exist as to how effective the policy will be and whether safety issues will arise after the implementation of the policy. Further, more policy changes may come as challenges to their zero jewelry policy arise.
Third, will the new policy expose the jails to tort (personal injury) litigation? Generally speaking, a jailer owes a duty of care to inmates. A jailer's duty to protect an inmate from violence "arises when the jailer knows or, in the exercise of reasonable care, should know of the danger of attack." Cooney v. Hooks, 535 N.W.2d 609, 611 (Minn. App. 1995). While there have been no cases dealing with the use of a headscarf as a weapon or in the assistance of suicide, liability may still exist if something violent were to happen with the headwear. Specifically, if a headscarf were to be used as a weapon then a jailer may be held liable. This would be especially true if there were to be multiple uses of the headscarf in violent attacks. Further, a jailer could be held liable for an inmate's suicide where the inmate's suicide was reasonably foreseeable to the jail. Sandborg v. Blue Earth County, 615 N.W.2d 61, 64 (Minn. 2000). If a headscarf were used in a suicide, the use of the headscarf in this way would have to be reasonably foreseeable to the jail. Thus, a situation where liability could arise would be if a jailer was aware that the headscarf could be used as a weapon against other jailers. However, liability at this point is unlikely because of discretionary act immunity. Discretionary act immunity applies to jailers in their official capacity as State employees. Essentially, this doctrine shields State employees like the Hennepin County Sherriff from civil liability for things that happen as a product of their discretionary decision making. A discretionary act is one which requires a balancing of complex and competing factors at the planning, rather than the operational, stage of development. Larson v. Independent School Dist. No. 314, 289 N.W.2d 112 (Minn.1979) . In the present case, the decision to allow headscarves into the jail would be considered a discretionary act. Liability would not automatically stem from one single attack. Instead, there would have to be knowledge, or reason to know, that the headscarves would be used in a way to harm inmates. At this point it seems that the Hennepin County Sherriff's office has deemed the use of religious headwear safe and has weighed the cost and balances of it. Thus, it is discretionary. However, once a threat with the religious headwear is known to the jailer, then liability can be an issue.
Lastly, should the jails simply ban all religious articles and clothing completely? This is not something that has been frequently attempted by jails. It seems jails are willing to allow non-dangerous items religious items. However, in Friend v. Kolodzieczak the Ninth Circuit Court of Appeals upheld a jail policy which banned all items not issued by the jail, which included all religious items. Friend v. Kolodziezcak, 923 F.2d 126, 127 (9 thCirc. 1991). Catholic inmates were challenging the policy by claiming that this policy was a violation of their 1 st Amendment rights. Id. The court gave three reasons for upholding this policy. First, the policy was applied to all items, whether religious or not. Further, this policy had the valid objective of preventing drugs and weapons into a jail. Id, at 128. Second, to allow Catholic inmates to possess rosary beads would create an appearance of favoritism towards Catholic inmates which could lead to resentment by other inmates. Id. Finally, Catholic inmates could practice their religion in other ways. Id. This policy seems feasible. First, it uses jail safety as its main justification. Jail safety is the most prominent concern at all times for jailers. Further, it treats all religions equally within the jail. The moment a jail starts to introduce specific religious items into its facilities there ultimately creates an imbalance between inmates of different religions. There will always be a divide between those religions who are allowed to have their religious articles and those who are not. This rift between religions should be avoided in environments such as jails. Finally, it is important to note that this case makes it clear that inmates had alternative avenues for which to practice their religion. Thus, the jail did not put a moratorium on all religious worship. Instead, it restricted all religious items while allowing for all religions to continue practicing their faith.
The issue of religious headwear in Minnesota jails is multifaceted and carries with it a great deal of legal questions. It will be interesting to watch how this new policy plays out in the jails across the twin cities and maybe even in greater Minnesota. Caplan & Tamburino will be keeping watch and will be updating this blog with current happenings.