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Religion and the Law

Unconstitutional to Pressure Arrestee to Be Baptized in Exchange for Leniency

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From Judge Travis McDonough's opinion Thursday in Riley v. Hamilton County Gov't (E.D. Tenn.):

In this atypical civil-rights case, Plaintiff Shandle Marie Riley brings several claims stemming from a traffic stop that ultimately resulted in her baptism—yes, baptism—by on-duty Hamilton County Sheriff's deputy Defendant Daniel Wilkey. [Deputy Jacob] Goforth, who was also on duty and was present for the desacralized rite, argues that he is entitled to qualified immunity on Riley's 42 U.S.C. § 1983 claims ….

The court concluded that Riley could go forward with:

  • her claims that the baptism, which she allegedly agreed to in exchange for Wilkey's offer of leniency, violated the Establishment Clause, because it unconstitutionally coerced religion and unconstitutionally endorsed religion (partly because it lacked a "conceivable secular purpose");
  • her claims that she was seized in violation of the Fourth Amendment for purposes of the baptism, because a seizure for those purposes was not "reasonable"; and
  • her claims that Goforth could potentially be liable for failing to intervene to stop the allegedly unconstitutional actions.

The court also concluded that, if the facts were as Riley alleged, Goforth's actions wouldn't be shielded by qualified immunity, because they would be clearly unconstitutional. "There are genuine disputes of material fact concerning whether Riley was coerced into the baptism, whether she would have faced harsher penalties had she refused to be baptized, and whether Goforth should have known that Riley was being coerced. This is enough to preclude summary judgment on this issue."

An excerpt of the facts and the legal analysis:

On February 6, 2019, around 9:15 p.m., Wilkey pulled Riley over in the driveway of her ex-mother-in-law Diane Smith's home. Wilkey approached Riley's driver-side window and asked her what she had in the car. Riley confessed that she had a marijuana roach in her cigarette pack.

Wilkey then opened the door for Riley to exit the car and directed her to place her hands on the roof. Wilkey searched her person for about twenty seconds and then handcuffed her. Another deputy, Tyler McRae, arrived while Wilkey was handcuffing her. After a minute or so of searching, Riley turned around and spoke to Wilkey face-to-face. After they spoke, Wilkey searched her pockets and eventually directed her to wait at the front of his patrol car. Riley testified that, while searching her this second time, Wilkey inappropriately touched her crotch. Wilkey found the marijuana cigarette upon searching Riley's person.

Wilkey searched Riley's vehicle while she waited near the patrol car. According to Riley, Wilkey "tore [her] car apart" searching for other contraband. After searching the vehicle and talking with her at length, Wilkey removed the handcuffs. He then directed Riley to pull up her shirt and shake out her shirt and bra, which she did. Wilkey did not find any additional contraband.

Wilkey and Riley next discussed religion. They spoke for another thirty minutes, and McRae left sometime during this conversation. Riley testified that Wilkey asked her whether she had been baptized. She responded with concern that she may not be ready. But, according to Riley's testimony, Wilkey told her "God [was] talking to him" and assured her that, if she got baptized, he would only write her a citation and she would be free to go about her business. According to Riley, Wilkey also indicated that he would speak at court on her behalf if she agreed. Riley decided to go along with this plan because she"[did not] want to go to jail." She also "thought [Wilkey] was a God-fearing, church-like man who saw something … in [her], that God talked to him," and testified that "it felt good to believe that for a minute." When later asked whether Wilkey "gave [her] the option not to do this," Riley answered:

Upon Wilkey's suggestion, Riley went into Smith's house to get some towels for the baptism. Riley was only in the house for a couple minutes, where she spoke briefly to her son, and asked Smith if she could borrow some towels. Smith asked her whether that was safe, and Riley replied "I don't know. We'll find out." After Riley emerged from the house with towels, Wilkey issued her a citation. Riley and Wilkey returned to their respective vehicles, and Riley followed Wilkey in her car for about twelve minutes to Soddy Lake.

That night, Goforth was also on patrol. Wilkey called Goforth while driving to Soddy Lake "and requested [his] presence at the Soddy Lake boat ramp to witness a baptism." Goforth believed Wilkey was baptizing someone who he knew personally. Goforth did not learn that Riley had been cited for a criminal offense until he arrived at the boat ramp. Goforth avers that he "asked [Wilkey] if he had thought about [baptizing Riley] in an effort to provoke reconsideration," but that Wilkey "wanted to proceed."

Wilkey arrived at Soddy Lake around 10:36 p.m. and waited in his car for several minutes. Once Goforth arrived, Wilkey introduced Riley and Goforth to each other, stating that Riley wanted to be baptized. In preparation for the baptism, Wilkey told Riley, "I'm going to be honest with you, …I'm going to strip down to my skivvies," but he asked Riley to keep her clothes on. Wilkey removed all his clothing except his underwear and t-shirt, and Riley remained fully clothed except for her shoes. Wilkey baptized Riley by quickly submerging her in the water while holding her with one hand on her back and the other hand on her front.

Goforth filmed the baptism on his cellphone. Goforth avers that he did so "to protect all persons present and document the event." There is some dispute as to where Wilkey was touching Riley during the actual baptism: Riley stated one of his arms was touching her breast, but in the video Goforth took of the baptism, it appears as though Wilkey was only holding her arm. Wilkey and Riley were in the water for approximately one minute and twenty seconds total.

Once out of the water, Riley and Wilkey hugged each other for roughly four seconds.   When asked why she had hugged Wilkey, Riley testified that she "was just trying to get the heck out of there," and that she left immediately without talking with Wilkey or Goforth. Riley also testified that Goforth smirked at her while she was drying herself off, though Goforth denies interacting with her in any way. Riley further stated that, at that point, "[she] knew it had nothing to do with God [or] … with saving [her or] … with [anyone] being a good person. It had something to do with power and control[.]" Goforth avers that "Wilkey and Riley spoke pleasantly to each other[,] laughing and joking among themselves" and that Riley "appeared to be participating in the event voluntarily and with enthusiasm." At 11:00 p.m., all three walked back to their vehicles. There was some conversation and laughter before Riley departed, and Goforth and Wilkey continued talking after she left….

"A person is seized by the police and thus entitled to challenge the government's action under the Fourth Amendment when the officer, by means of physical force or show of authority, terminates or restrains [her] freedom of movement through means intentionally applied." … When a suspected seizure is affected without the use of physical force, there must be both a show of authority from the officer and submission by the detainee. "[W]hat may amount to submission depends on what a person was doing before the show of authority[.]"The Supreme Court has noted that "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled" can connote a seizure, even when the individual never attempted to leave. However, "[i]n the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person."

Goforth argues that Riley was no longer seized when she arrived at the boat ramp for the baptism because she drove her own car to the lake and "was no longer physically restrained in any way." But genuine fact issues preclude summary judgment on this basis. Because of the absence of audio in the dashcam footage, the specifics of the conversation that led to the baptism are unclear. Although Goforth contends that, from his perspective, Riley freely consented to the baptism, Riley denies this.

And taking the facts in the light most favorable to Riley, a reasonable person under the circumstances could have believed she was not free to leave until the baptism was completed. Riley had already been pulled over, handcuffed, and detained for nearly two hours by an on-duty, uniformed officer driving a marked police vehicle. She had surrendered marijuana she knew she was not legally allowed to have. Riley also testified that she went along with the baptism at least in part because she did not want to go to jail. She further testified that Wilkey told her that, if she agreed to be baptized, "he'd give [her] a citation and [she] could go on about [her] business." Wilkey had also called and requested the presence of an additional on-duty officer for the baptism. It would not be unreasonable for a person facing these circumstances to believe that, if she attempted to leave before the baptism was over, she would have been prevented from doing so. Accordingly, Goforth is not entitled to summary judgment on the grounds that Riley was not seized for the purposes of the baptism….

Though Goforth's argument rests primarily on the absence of a seizure, the Court notes that only unreasonable seizures violate the Fourth Amendment…. To determine the reasonableness of an officer's conduct, the Court balances "the governmental interest which allegedly justifies official intrusion" against the intrusiveness of the seizure on the individual's rights.

If the facts demonstrate that Riley was seized, that seizure will have been unreasonable. No government interest is furthered by the baptism of a detainee by an on-duty law-enforcement officer. To the contrary, "[i]t is beyond dispute that, at a minimum, the Constitution guarantees that the government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which establishes a state religion or religious faith or tends to do so." "[I]f citizens are subjected to state-sponsored religious exercises, the State disavows its own duty to guard and respect that sphere of inviolable conscience and belief which is the mark of a free people." Baptism of detainees by law-enforcement officers runs directly counter to the government's substantial interest in guaranteeing the free exercise of religion without government intervention. Any … seizure for the purpose of conducting a baptism intruded upon Riley's liberty without furthering any government interest and was therefore unreasonable….

[C]oerced participation in a Christian baptism—an overtly religious act with no secular purpose—[is] unlawful…. Even if Riley was not coerced into the baptism, … [a] state actor improperly endorses religion "if a reasonable observer would think that that the activity is a governmental endorsement of religion." Under this test, the "reasonable observer" is "deemed aware of the history and context of the community, as well as the context in which the challenged government activity took place." Applying this test, courts have found that the government endorses religion when the act at issue is inherently religious in nature.

A baptism, too, is an unambiguously religious practice that does not have a conceivable secular purpose. There is no indication in the record that either officer understood or intended the baptism as anything but an exercise of faith and religion. Any reasonable observer would conclude that the effect of the baptism was an unequivocal endorsement of Christianity….

Congratulations to plaintiff's lawyers, Andrew C. Clarke, Howard Brett Manis, and Robin R. Flores.

NEXT: Today in Supreme Court History: April 9, 1923

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  1. While this is clearly bonkers, I'm not so sure what the actual damage is.

    1. Being coerced to follow the whims of an armed agent of the state isn't enough for you?

      At the very least we shouldn't be letting these agents continue to believe that this is acceptable.

      1. This seemed like a Tik Tok prank. Lady gets pulled over. She is asked to get out of the car. Out jumps her fiance who proposes marriage. She hugs him, and says, yes.

        The parties should all be required to take an extended course in constitutional rights.

      2. For sure, but what is the $ amount damages award? This is a civil suit, after all. (There is also a criminal version of 42 U.S.C. § 1983, but I don't think anyone has noticed that in several decades.)

        1. What in the world are you talking about?

          1. My best guess is that he's suggesting that the likely compensatory damages award won't be, and probably shouldn't be, large. If that's what he's saying, he's probably right. But there will likely be some made-up number, possibly in the mid-five figures, that would hold up on appeal. And the lawyer usually gets paid separately, not out of the award.

            1. I was referring to the parenthetical.

                1. My question was more geared towards why you think no one has noticed the existence of criminal civil rights laws in "several decades."

                  1. I suspect that it was a tongue-in-cheek comment, suggesting that what was really at play was that it's something that's really relied on. (And not, as literally stated, that a generation of law professors, judges, prosecutors, and lawyer have overlooked it.)

                    Sort of like if you or I had written, in the context of a gun rights controversy, "There is also a Second Amendment to the federal Constitution, but I don't think anyone has noticed it in many decades."

                    (If my guess is wrong, then I apologize...I know it's risky guessing what other people meant when they posted online.)

                    1. Indeed. Admittedly I don't have access to a good legal database, but when is the last time anyone has been prosecuted under 18 USC 242?

                    2. I suspect that it was a tongue-in-cheek comment, suggesting that what was really at play was that it's something that's really relied on.

                      I agree - it just seemed like an odd thing to say, since people get charged with violating section 242 all the time. (The George Floyd officers are a recent high-profile example, but certainly not the most recent.) Indeed, there is an entire section at DOJ dedicated to criminal civil rights prosecutions. So I am curious why Martinned seems to think it's fallen into desuetude.

                    3. @NaS: Interesting. I'd assumed that the George Floyd case simply involved manslaughter and assault charges.

    2. Worse than bonkers. It's not kosher. 🙂

      1. [rim-shot]

    3. Baptized into the wrong religion? Could be eternal damnation. Burning in hell forever.

      Of course she was already looking at 700,000 years in purgatory for the marijuana. I'd say the rest of eternity after that is good for roughly $10K in damages.

      1. It's not even clear what authority Wilkey has to conduct baptisms. Not an issue for all Christian sects, but certainly an issue for an awful lot of them.

        1. In the church in which I was raised, any baptized male may himself perform a baptism. It wasn’t that unusual for someone to request baptism from someone they considered a mentor whether or not he formally held a position of church leadership.

        2. Squirrel,
          Ironically, after doing the baptism, he celebrated at Dunk(in) Donuts.

    4. What? You don't see the problem with what may be police coercing someone into participating in a religious rite?

      1. Personally, I see a problem with the police coercing you into chewing bubble gum. This was so over the top I couldn't even muster any thing to say beyond "WTF?"

        1. Posting just to enjoy a rare agreement with ya Brett. WTF indeed.

      2. For sure I see a problem, but one of the elements of a suit in tort is damage. As in, an actual dollar amount of damages that might be awarded. Being unlawfully detained clearly qualifies, but the baptism?

        1. 1. Actual damages aren't an element of a § 1983 claim.

          2. I'm not following why you think being unlawfully detained creates actual damages, while being unlawfully compelled to participate in a religious ritual does not.

          1. Because time is money. (Or at least can easily be valued as such.) Having someone do a magical ritual on you causes you no real, objective harm.

            1. I disagree. It causes much more objective harm than merely being detained.

              1. David,
                Did you mean subjective, rather than objective? I'm genuinely not seeing the objective harm. (Other than possibly water damage to her clothing, and de minimus things like that.)

                Now, if a cop pressured an adult into getting circumcised...objective damages seem pretty self aparent.

                "Q: What are your damages? What did you lose?
                A: About a quarter inch."

                1. I mean as objective as the value of lost time. Which, by the way, is very far from actually being objective. (One way to try to measure time is with wages, but a person who isn’t working but could be presumably values their time more than the wages they are foregoing.)

                  It is objectively harmful to be coerced to perform religious acts by an authority figure misusing public power to advance a personal agenda. As this is an attack on the dignity of the person and their equal right to decide what religious ideas they would like to endorse with their words and actions.

                  In contrast, when a person is “only” being detained, they lose their freedom to act, but they aren’t forced to engage in speech.

                  Let me put it this way. This person was not only detained, but also forced to engage in speech. So, it is detained+. The amount of additional harm caused is subjective (just like valuing time is subjective), but the existence of additional harm is objective. So, it is objectively more harmful. Whatever the harm of being “only” detained, this was objectively worse.

                  1. I think all your points are reasonable. Convinced me. 🙂

                    1. "your points are reasonable. Convinced me"

                      Whoa! What next?

                      Is the sky supposed to fall now?

                      (j/k)

  2. Female PA Announcer: Oh really, Vernon? Why pretend, we both know perfectly well what this is about. You want me to have a baptism.

    Male PA Announcer: It’s really the only sensible thing to do. If it’s done safely, therapeutically, there’s no danger involved.

  3. I will set my watch to the number of seconds before one of your cobloggers explains how this is an unconscionable violation of the officers' free exercise rights, and how the plaintiff, being irreligious, has no rights that a religious officer need respect.

    1. Go for it -- let me know when (and if) that happens.

    2. Prof. Volokh doesn't do things like that (expressly defend the religious molester; overtly attack the victim). He cultivates and lathers a shambling collection of right-wing believers who do it for him.

    3. Just to be clear, I’m one of the people that says an atheist generally doesn’t have free exercise rights to object to legislation. My view is that if you have no religious beliefs, laws that compell particular conduct can never violate your religious beliefs, because you have no religious obligation to do or refrain from doing anything.

      But the establishment clause is different. And there is an obvious establishment clause claim here.

      I would be inclined to treat the religion-related claim here as an Establishment Clause case. I would inclined to be skeptical that the religion element makes a difference to the 4th Amendment considered by itself.

      So if the plaintiff made only a 4th Amendment claim here, I might be inclined to dismiss this aspect of the complaint with some sort of hint that the plaintiff might consider amending it to raise the correct claim.

  4. This was the plaintiff's answer when asked whether she had the option to refuse:

    What do you mean gave me the option? I mean it wasn’t, it wasn’t by gunpoint ...or anything. ... I don’t know, like—I’m not sure he told me—I mean,...I don’t know if those words [came] out. But I mean, I know that I didn’t have to do it. I mean, I know that I’m a grown woman and I know I didn’t have to do it[.]

    I'm glad it didn't lose her the case, but her lawyers couldn't have been feeling great at that point of the deposition.

    1. Nothing is ever freely accepted when faced with an armed man with the ability to yet decide to let you off with a warning, citation, or a ride downtown, or to decide at that your are 'resisting arrest'. Her stammering reflects exactly the ambiguities experienced during the interaction.

      1. Oh I agree, and I'm glad that the judge did too. I just added it since it wasn't included in the post for some reason, and I have to think her lawyers would have hoped that she'd articulated to the compulsion a little more clearly.

    2. I suppose you're referring to this:

      But I mean, I know that I didn’t have to do it. I mean, I know that I’m a grown woman and I know I didn’t have to do it

      Which can more reasonably be read as either she knows she can turn it down and go to jail, or she knows she shouldn't have to do it in a just world.

      1. Yup. I think that both you and Gasman are basically correct.

      2. Good description of it; thanks.

    3. I think this illustrates why an Establishment Clause framework is more appropriate than a 4th Amendment framework. In an Establishment Clause case, coercion isn’t required. It’s enough that the state provide inducements to engage in the religious conduct. That clearly happened here. The plaintiff was offered leniency in exchange.

  5. For the baptism, I'd award a dollar in symbolic damages and a get out of purgatory free card. For the illegal detention, probably four figures.

    1. "For the baptism, I'd award a dollar in symbolic damages and a get out of purgatory free card."

      That's very Christian of you, clinger.

    2. I'd award seven figures myself, just so Hamilton County understands that they shouldn't be hiring and retaining assholes like Wilkey as LEO's.

      1. Not to mention a thorough training on "you can't do crap like this" for the remaining cadre.

    3. Which is probably fine, but hopefully if anything even vaguely like it ever happens again, they can point to this suit as willful violation and try to make it stick.

    4. Professor Volokh,

      I think ghould gets at least a partial win on this one. This is pretty much saying that the plaintiff didn’t, as a matter of constitutional law, suffer any damages, because, as her soul was saved and she isn’t going to Hell, the law has to take into a count that her condition was objectively, as a matter of law, improved.

      I’d say that’s close enough to ggould’s original hypothetical argument that you probably owe ggould a few brownie points.

  6. Choose reason. Every time.

    Choose reason. Every time. Especially over sacred ignorance, dogmatic intolerance, and childish superstition.

    Choose reason. Every time. Most especially if you are older than 12, 13, or so. By then, childhood indoctrination by substandard parents and nonsense-teaching teachers fades as an excuse for backwardness, bigotry, ignorance, superstition, and remarkably gullibility.

    By adulthood -- this includes ostensible adulthood, even in the states dominated by Republicans -- it is no excuse.

    Choose reason. Every time. And education, tolerance, progress, science, freedom, modernity, inclusiveness, and the reality-based world. Avoid ignorance, backwardness, bigotry, superstition (especially organized superstition), authoritarianism, insularity, silly dogma, and pining for 'good old days' that never existed. Not 75 years ago. Not 175 years ago. Not 2,000 years ago. Not ever. Except in fairy tales.

    Choose reason. Every time. Be an adult.

    Or, at least, please try.

    Otherwise . . . you could wind up a movement conservative and Republican culture war casualty -- destined to be replaced by a better American who chose reason over superstition -- or perhaps find yourself administering roadside baptisms in the name of Jesus immediately after abusing your position by feeling up someone who can't fight back.

    Thank you.

  7. The coerced baptism appears to be just one thing done to this woman, according to her lawsuit as detailed in this article: https://www.timesfreepress.com/news/local/story/2019/oct/01/hamiltcounty-sheriffs-deputies-face-11-millil/504905/

  8. Backwater religious ceremonies conducted by on-duty and superstition-addled law enforcement personnel -- what could go wrong?.

    Carry on, clingers. But only so far as a higher power -- the liberal-libertarian mainstream, your betters -- permits.

  9. It is difficult to believe, but this is not Daniel Wilkey's <a href=https://newschannel9.com/news/local/lawsuit-claims-hamilton-county-deputy-strip-searched-six-minors-during-rainy-traffic-stopfirst rodeo.

    Or his second.

    Or his third. (This blog can't handle more than two links, but the third involves a claim of excessive force that left the male plaintiff with -- you guessed it, because Daniel Wilkey is a Man Of The Lord and this is Tennessee -- "anal contusions."

    Also because this is Tennessee, point your Google-compatible device toward a TechDirt story concerning Wilkey with the headline "Sheriff's Office That Employed A Deputy Facing 9 Lawsuits And 44 Criminal Charges Says It Has Lost All Of His Dashcam Footage."

    Carry on, clingers.

    1. Herein lies the beauty of the Law: you can't make this sh*t up.

      1. Truth is stranger than fiction, because fiction has to sound plausible.

    2. That tears it - I'm moving to a Democratic city like Chicago or Minneapolis where the police are much nicer!

      1. Nah. You seem a better fit in backwater Tennessee. The availability of rattlesnake-juggling exhibitions and faith healers alone should clinch it.

        1. No, no, you're not doing regional insults correctly. You should have mentioned meth, for one thing. You should also have thrown in a reference to creationism - after all, the Scopes trial was in Tennessee.

          1. I thought meth was Ohio and creationism was Alabama.

            It becomes difficult to keep your sl_ack-jaw_d red states straight when you have lived in a modern, educated, reasoning community long enough.

            The rattlesnake-jugglers and faith-healers of Tennessee belong in that comment. If anyone was mistreated by omission it was Marsha Blackburn, who considers Wilkey quite a catch and wishes she were young enough to catch his attention at the next revival meeting.

            1. No, the Scopes trial was, indeed, in Tennessee, so Tennessee is associated with creationism.

              You'd be able to keep up with these things if you'd consulted your Stereotype Handbook, which just came out in a revised edition.

              To be fair, the revised edition was a bit long in coming. The previous edition was issued about a century ago and is filled with bigoted remarks about black people, asians, women, and so on.

              But now all the bigotry has been eliminated from the new edition and instead of bigotry against blacks, women and asians, it contains hard truths about hillbillies, white trash, rural residents, southerners, and religious people (as opposed to spiritual people and Episcopalians, who are OK).

  10. Someone in law-enforcement is a little too enthusiastic about The Merchant of Venice. Lay off the Shakespeare until you're sure you can handle it!

  11. Why no QI?
    I will bet the lawyers next paycheck that there is NO prior rulings like this.
    And with QI, asset forfeiture, geo-warrants, gun control laws, etc, there is NO act clearly unconstitutional,

  12. A truly bizarre set of facts. I am a bit surprised, given the novelty of what occurred, that qualified immunity didn't shield the deputies.

    1. Right?

      Maybe this is the absurdity exception to qualified immunity? It is just too much to stomach applying this judge invented doctrine here?

  13. I have a feeling that there really isn’t any precedent that is SPECIFICALLY on point here.

    This case just shows the absurdity of qualified immunity. Here, qualified immunity wasn’t applied even though there is likely no precedent exactly on point.

    Maybe, just maybe, the conservatives of the Supreme Court should eliminate the judicial activism that we call qualified immunity and see to it that citizens who are deprived of their constitutional rights are properly compensated. Section 1983 doesn’t mention qualified immunity. If Congress wants to creat a qualified immunity doctrine, it is perfectly capable of doing so. Why did the Court have to do so for them? And why do the Court’s conservatives keep on upholding this judge-made doctrine?

    1. I don't care whether liberals or conservatives abolish qualified immunity, so long as it's abolished.

      After that, everyone can compete to get the credit for abolishing it.

      1. It will not be conservatives who abolish or substantially diminish qualified immunity. Every decent American should care about that.

    2. IIRC QI begins with consideration of whether the pig, uh, cop, should have known that the conduct was unconstitutional and generally the fascist, uh, conservative judges think that unless there's a similar enough case the poor cop just couldn't have known. But there are instances where the constitutional violation is so clear that everyone except Thomas can see it, and this appears to be one.

      If it does make it to the Supremes, though, Thomas will deffo find QI applies, because how could the cop have known that violating the constitution was unconstitutional?

      1. If we were to be maximally sympathetic to judges applying qualified immunity, we would say that the less obvious the violation, the more on point they require previous precedent to be.

        I am just not that sympathetic. What I see instead is different standards of “on pointness” being applied in different cases. And that, rather than how obvious the constitutional violation is, drives the difference in whether QI is granted or denied in a given case where there is no precedent precisely on point.

        Qualified immunity, in addition to being a judge-made doctrine, is also just not that justiciable. Judges have too much discretion to grant immunity or deny it based on what they ate for breakfast.

        And I just don’t think whether a constitutional violation has a remedy or not should depend on what the judge ate for breakfast.

        1. "And I just don’t think whether a constitutional violation has a remedy or not should depend on what the judge ate for breakfast."

          What he (you) said

  14. IIRC, Section 1983 allows punitive damages, so the jury could award her $ 1 in nominal damages and then lots of punitives.

    There is also the emotional humiliation of being forced to undergo a religious ceremony you don't believe in. While that is not easy to put a dollar amount on, emotional distress is a basis for monetary awards in many kinds of cases.

    1. Johnnie Cochran (Google "OJ Simpson trial" if you're too young to know the name) was famous for this. Or, infamous. He did a bunch of civil rights/police brutality cases in LA. One of his common arguments in closing (for cases that were a close call) was to say, in essence, "Cops did bad here. My client is not looking for a jackpot payday...merely the recognition that the cops screwed up. Send a message to the police dept and find in favor of my client. If you want to award minimal damages after that; that I leave up to your good judgment."

      It was brilliant. He'd often get a verdict for his client, with a token award. BUT . . . as a Section 1983 case, the victory meant he also got attorneys' fees added on. Ka-ching$$$$

      (It should be noted that he also took on some really awful and meritorious cases, and did a great job on them--getting justifiably large damage award for clients who had been treated really horrifically by the 1980s and 1990s LAPD.)

    2. Human Sacrifice, if indeed it turns out to be another Murder One plus witness tampering case, is sho 'nuff as religious as ceremonies get. But at least she gets the pass into Heaven thanks to Positive Christianity saving her from the clutches of vice.

  15. Real question in my mind is why this officer is still working, if he is.

    1. Of course. You can't go firing government employees for their religion!

    2. In Tennessee? He will have a badge as long as he likes, then start a megachurch or run for Congress.

      Unless, as a clinger observed above, the meth gets too strong a hold on him.

    3. Real question on mine is why this litigious, Plant-Possessed Pagan is still alive to testify against a Servant of God's Own People. Woopsie... nevermind.

  16. So Professor let me get this straight. It is correct that one cannot impose any pressure to participate in a religious right in exchange for a legal allowance.

    BUT you absolutely won't discuss the various J6 judge rulings that require defendants to recant their political viewpoints in exchange for legal allowances such as bail.

    Why is this?

  17. In addition to being unconstitutional this would also be unbiblical.

  18. So the cop in Monkey-Trial County, Tennessee sticks his fingers up an unwilling lady alleging Santanic Plant Leaf Possession. The public servant disrobes, plunges her underwater and--after she sues--she turns up conveniently dead. I'm willing to bet the Landover Baptist Coroner will say "fentanyl overdose" and try to cremate the evidence. Any takers?

  19. The officer clearly deserves a reprimand for failure to confiscate the woman's property under G. Waffen Bush "faith-based sharing" asset forfeiture provisions. This is tantamount to ripping off union brother officers, desperately in need of some forfeiture-sharing pelf to replace the margarita machine.

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