Firewalker-Fields v. Lee

• Decision Date: 17 January 2023
• Docket Number: 19-7497
• Parties: David Nighthorse FIREWALKER-FIELDS, Plaintiff - Appellant, v. Jack LEE, Superintendent; Middle River Jail Authority, Defendants - Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

58 F.4th 104

David Nighthorse FIREWALKER-FIELDS, Plaintiff - Appellant,

v.Jack LEE, Superintendent; Middle River Jail Authority, Defendants - Appellees.

No. 19-7497

United States Court of Appeals, Fourth Circuit.

Argued: December 7, 2021

Decided: January 17, 2023

ARGUED: Ignacio Martinez Castellanos, Hannah Comeau, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Appellant. Julian Friedman Harf, GUYNN WADDELL CARROLL & LOCKABY, P.C., Salem, Virginia, for Appellees. ON BRIEF: J. Scott Ballenger, Zev Klein, Third Year Law Student, Joshua Short, Third Year Law Student, Carly Wasserman, Third Year Law Student, Appellate Litigation Clinic, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Appellant. Emily K. Stubblefield, GUYNN WADDELL CARROLL & LOCKABY, P.C., Salem, Virginia, for Appellees.

Before GREGORY, Chief Judge, RICHARDSON, Circuit Judge, and Rossie D. ALSTON, Jr., United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed in part, vacated in part, and remanded by published opinion. Judge Richardson wrote the opinion, in which Chief Judge Gregory and Judge Alston joined.

RICHARDSON, Circuit Judge:

David Nighthorse Firewalker-Fields spent nearly three months in Middle River Regional Jail. And he alleges that Middle River's practices during that time substantially burdened his Islamic faith while unconstitutionally favoring the practice of the Christianity. He argues that he was kept from engaging in Friday Prayer, and all the while the jail broadcast non-denominational but distinctly Christian services every Sunday on televisions throughout the facility. This case deals with the difficulty of analyzing constitutional rights claims by prisoners, who necessarily surrender some rights during incarceration, and particularly the difficulty of dealing with religious accommodations in prison. Prisons are required to provide religious accommodations; the question here is when those accommodations go too far and when they do not go far enough.

Firewalker-Fields's claims regarding Friday Prayer implicate the Free Exercise Clause. Under that clause, prisons can impose burdens on inmates' religious practice—even substantial burdens—so long as the prison rules that do so are "reasonably related to legitimate penological interests." Middle River had three rules in place that kept Firewalker-Fields from attending in-person Friday Prayer: no inmate led groups; no maximum-security prisoners allowed in any in-person groups; and prisoner services and classes by volunteer or donation only. Those rules are reasonably related to justifiable prison goals and therefore do not offend the Free Exercise Clause.

Firewalker-Fields's claims about the Christian broadcasts implicate the Establishment Clause. What that clause requires has recently been unsettled. The Supreme Court in Kennedy v. Bremerton School District announced that the Lemon test—the Fourth Circuit's long-used, all-purpose Establishment Clause test—is no longer good law, and that in its place, courts should use an analysis that focuses on history, tradition, and original meaning.

While we affirm the district court's Free Exercise decision, we must remand for further proceedings on the Establishment Clause to allow the district court to grapple with the history-and-tradition test in the first instance.

I. Background

A. Facts

This appeal involves the period that David Nighthorse Firewalker-Fields spent in Middle River Regional Jail before being transferred to long-term imprisonment in the Virginia Department of Corrections.

Firewalker-Fields arrived at Middle River on a Wednesday. By the next day, before he had missed Friday Prayer or endured a Sunday service, he already filed an Inmate's Grievance: "Why is [Middle River] promoting the Christian Religion while not allowing myself as a Sunni Muslim to be allowed to have access to Jumuah, the [F]riday prayer service?" J.A. 11. Firewalker-Fields asked for Friday Services to be put in place and to receive a § 1983 lawsuit package. About two weeks later, Firewalker got his first response from the jail: "The program over the TV is a non-denominational program that people can choose whether or not to watch. You are allowed to have your religious material and believe as you choose." J.A. 11.

Firewalker-Fields appealed that denial two days after receiving it, arguing that other prisons, like the Virginia Department of Corrections, allow inmates to serve as imams for Friday Services with a guard present. But the Middle River Administration's response was the same: "Mr. Firewalker, you may practice your religion in your housing area. Sunday service is non-denominational." J.A. 12.

Having failed to gain anything in the grievance process, Firewalker-Fields put his § 1983 lawsuit package to use. Just over three weeks after being placed in the jail, Firewalker-Fields sued Middle River and Jack Lee, in his capacity as Superintendent. He alleged: "Middle River Regional Jail Authority and Jack Lee authorize Christian Faith Classes while not allowing or offering Islamic Faith Classes." J.A. 8. Firewalker-Fields asked for damages; he asked to be transferred from the jail to the Department of Corrections as soon as possible; and finally, he asked for an injunction requiring Middle River to institute Islamic services.

Two months later, Firewalker-Fields was transferred out of Middle River to permanent placement in the Virginia Department of Corrections system. But the § 1983 suit continued on. Ultimately, the district court granted summary judgment for Lee and Middle River. J.A. 74. Firewalker-Fields timely appealed, and we have jurisdiction. 12 U.S.C. § 1291.

B. Religious Accommodation at Middle River

While its population is predominantly Christian, Middle River houses inmates of many religions. In 2018, a year after Firewalker-Fields left, around 33 religions were represented at the jail. Inmates of every religion were provided some accommodations. All inmates were allowed to pray in their cells; to have some access to soft-cover religious texts; and to visit once per week with a spiritual advisor with whom they could talk and pray. Muslims were given a few additional accommodations, including special mealtimes during Ramadan and a pork-free diet all year round.

In some respects, Christians had greater opportunity to practice their faith, but this was primarily due to Middle River's policy that all religious and non-religious classes were volunteer or donation only. The jail had volunteers and donations from Christian groups. So Middle River offered a volunteer-led, non-denominational "faith-based class" for all inmates, but which used "the Bible [as] the central text." J.A. 51. But they had never received Muslim volunteers or donations, so there was no faith class using the Quran as the central text.

Middle River also played a Christian video on Sundays. That video, donated by a local Mennonite Christian group, had Christian themes and used the Bible. The service was broadcast using a closed-circuit television system into every "day room" in the jail, communal spaces attached to the inmates' housing units. Middle River's closed-circuit TV system only allowed a single video to be played at a time and that video was played on all the available screens simultaneously.

Firewalker-Fields's frustrations with these policies are twofold. First, he argues that he could not avoid the Christian broadcasts. He claims that while the broadcasts played, he could either go out into the common room and listen to Christian proselytizing or stay in his housing unit. The prison largely agrees with that characterization: "Inmates that do not want to watch the services can stay in their housing areas." J.A. 48. Firewalker-Fields argues that the experience felt like an ultimatum: "Be Christian or be penalized." J.A. 68.

Beyond the Christian video, Firewalker-Fields was also upset by the lack of any Muslim services or classes. Specifically, Firewalker-Fields wanted to perform Jumuah—or Friday Prayer—"which [is] a required part of the Islamic faith." J.A. 9. The jail did not offer any Islamic services or classes. Again, this was due to the lack of any Muslim donations or volunteers. And Middle River claims it attempted to remedy the situation by reaching out to a nearby mosque for help, but those efforts failed.

Even apart from the lack of Muslim volunteers or donations, Middle River indicated that it could not have logistically accommodated Friday Prayer sessions. Every day from 11 am to 1:30 pm, the jail was on lockdown for lunch and midday count. That tied up all available officers in various tasks, and Middle River claims that this prevented the jail from properly supervising a Muslim service on Fridays at noon as requested. And the possibility of having to provide that kind of get-together for every faith was daunting.¹

These logistical challenges would not be alleviated by permitting inmates to lead the prayer services. And, more to the point, Middle River policy did not allow inmate-led groups of any kind—religious or otherwise—because of security concerns about the effects of forming inmates into affinity groups. The jail was concerned about the "inherent safety risks" of fostering group behavior and "gang mentality." J.A. 50 (cleaned up). In any event, Firewalker-Fields would never have been able to attend any in-person classes during his time at Middle River because he was classified as a maximum-security inmate due to his criminal history and background, and maximum-security inmates were not allowed to attend in-person classes.

It was possible for a maximum-security prisoner like Firewalker-Fields to invite an imam to pray with him during the Friday afternoon "Professional Visiting" time, starting at 12:30 pm. That would have allowed him to engage in Friday Prayer, if not exactly at noon. But Firewalker-Fields never put an imam on his visitation list and provided no evidence that he reached out...