Marrero-Mendez v. Calixto-Rodriguez ( 2016 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 14-2030
    ALVIN MARRERO-MÉNDEZ; CYNTHIA PÉREZ-VALENTÍN; CONJUGAL
    PARTNERSHIP MARRERO-PÉREZ,
    Plaintiffs, Appellees,
    v.
    GUILLERMO CALIXTO-RODRÍGUEZ, former Carolina Area Commander for
    the Puerto Rico Police Department; MARIO RIVERA, Chief of the
    Carolina Precinct of the Puerto Rico Police Department; RICARDO
    CRUZ-DOMÍNGUEZ, Supervisor of the Puerto Rico Police Department,
    Defendants, Appellants,
    HÉCTOR PASQUERA, Superintendent of the Puerto Rico Police
    Department; WILLIAM OROZCO, Carolina Area Commander of the
    Puerto Rico Police Department,
    Defendants.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. Jay A. García-Gregory, U.S. District Judge]
    Before
    Torruella, Lipez, and Thompson,
    Circuit Judges.
    Margarita Mercado-Echegaray, Solicitor General of the
    Commonwealth of Puerto Rico, with whom Andrés González-Berdecía,
    Assistant Solicitor General, was on brief, for appellants.
    Heather L. Weaver, with whom Daniel Mach, the American Civil
    Liberties Union Foundation, Josué Gonzalez-Ortiz, William Ramirez,
    and the ACLU of Puerto Rico were on brief, for appellees.
    July 19, 2016
    LIPEZ, Circuit Judge.         Plaintiff Alvin Marrero-Méndez
    ("Marrero"), an officer in the Puerto Rico Police Department
    ("PRPD"),      filed   a   §   1983 action, claiming that           his superior
    officers       ("appellants")    violated     the     Establishment     Clause   by
    holding a group prayer while on duty and punishing Marrero for his
    non-conformance.           Appellants   moved    to    dismiss    the   complaint,
    claiming a failure to allege plausibly a constitutional violation
    and invoking qualified immunity.             The district court denied their
    motion.     In this interlocutory appeal challenging only the denial
    of qualified immunity, we affirm the district court's decision.
    I.
    The denial of qualified immunity on a motion to dismiss
    is immediately appealable.         See Mitchell v. Forsyth, 
    472 U.S. 511
    ,
    530 (1985); Penn v. Escorsio, 
    764 F.3d 102
    , 105 (1st Cir. 2014).
    Hence, we review the district court's rejection of qualified
    immunity, accepting, as we must, all well-pleaded facts in the
    light most favorable to Marrero.          See Ocasio-Hernández v. Fortuño-
    Burset, 
    640 F.3d 1
    , 17 (1st Cir. 2011); Maldonado v. Fonatanes,
    
    568 F.3d 263
    , 266 (1st Cir. 2009).
    Marrero has been a police officer in the PRPD since 1999.
    Prior     to    the    alleged    incident,      Marrero's       responsibilities
    consisted of law enforcement tasks, such as patrolling, conducting
    arrests, and undertaking other crime-prevention activities.
    - 3 -
    On March 9, 2012, Officer Guillermo Calixto-Rodríguez
    ("Calixto"), a regional commander of the PRPD, summoned forty PRPD
    officers for a meeting in the parking lot of a shopping mall to
    discuss a plan for an intervention to take place nearby.                    Marrero
    was among those in attendance, as were two of his superiors,
    Officers   Mario    Rivera     ("Rivera")      and   Ricardo    Cruz-Domínguez
    ("Cruz"). All of the officers stood in military formation. Toward
    the end of the meeting, Calixto asked for a volunteer to lead the
    group in a prayer.         These meetings, which occurred every other
    month or so, typically included a Christian invocation or closing
    prayer.
    On     this     occasion,     Marrero     --   who     is   an    "open
    atheist" -- called Calixto aside and told him that "he object[ed]
    to such official prayers because they promote[d] religious beliefs
    to which he [did] not subscribe."              He added that "he felt very
    uncomfortable taking part in the prayer and that he did not want
    to participate."         Marrero also informed Calixto that the prayer
    violated   PRPD    regulations,        which   provided    that    "[a]     strict
    separation shall be maintained between the church and state."
    Calixto became "upset" and ordered Marrero to "abandon
    the formation."          As Marrero was walking away from the group,
    Calixto shouted that Marrero should stop and stand still until the
    prayer was finished.       Calixto also shouted, in front of the entire
    formation, that Marrero was standing apart from the group because
    - 4 -
    "he   doesn't   believe     in   what    we   believe   in."      Marrero     felt
    humiliated.     Obeying Calixto's order, Marrero stood, with his back
    to the formation, until the prayer ended.
    After    the    meeting,      Marrero   worked      with   Cruz,    his
    immediate supervisor, for the rest of the night.                  Marrero told
    Cruz that he was upset about the incident with Calixto, and that,
    as a result, he preferred to be assigned to his usual duties at
    the airport, away from the area in which the intervention meeting
    took place.     Marrero also began to cry because of the humiliation
    he had experienced.        While on their way to the airport, Marrero
    told Cruz that he intended to file an administrative complaint
    about the incident.         When they arrived at the airport, Cruz
    instructed Marrero to hand over his weapon because he was in an
    emotional state, and to report to Rivera the following Monday to
    receive further orders about a transfer.
    The following Monday, March 12, 2012, Marrero filed an
    administrative complaint at the PRPD.1             Two days later, he also
    met with Rivera, as instructed by Cruz.            Rivera presented Marrero
    with two transfer options:              report to the Command Office for
    clerical tasks or stay in the airport station to perform vehicle-
    maintenance tasks.        Both options were effectively demotions from
    Marrero's usual responsibilities.             Marrero chose the latter and
    1It is not clear from the record how the administrative
    complaint was resolved.
    - 5 -
    has since carried out vehicle-related and other such tasks, not
    the law enforcement activities for which he was trained.
    On March 8, 2013, Marrero filed this action, claiming
    that appellants violated the Establishment Clause by "expos[ing]
    [him]    to    unwanted   religious   exercise   and   messages    by   [PRPD]
    officials."2 He also alleged that appellants' conduct "endorse[d]"
    religion and "entangle[d]" the PRPD with religion.           Additionally,
    Marrero       claimed   that   appellants   retaliated   against    him    for
    refusing to participate in, and speaking out in opposition to, the
    prayer and for filing an administrative complaint regarding the
    prayer practices.3        Appellants moved to dismiss the complaint,
    claiming a failure to allege plausibly a constitutional violation,
    see Fed. R. Civ. P. 12(b)(6), and invoking qualified immunity.
    The district court denied their motion on both grounds.
    As to the Rule 12(b)(6) defense, the court found that Marrero had
    adequately alleged an Establishment Clause violation because the
    2 In addition to Calixto, Cruz, and Rivera, Marrero named
    Héctor Pesquera, PRPD Superintendent, and William Orozco, a
    regional commander of the PRPD, as defendants in the suit based on
    supervisory liability.   The district court dismissed the claim
    against Pesquera and Orozco, however, finding that Marrero failed
    to allege sufficient facts to establish supervisory liability.
    Marrero has not appealed that ruling, and Pasquera and Orozco are
    not appellants in this case.
    3 Although the allegations state that Marrero was subject to
    a hostile work environment based on his religious beliefs, the
    complaint does not assert an employment discrimination claim under
    Title VII, see 42 U.S.C. § 2000e et seq., instead framing these
    allegations as an Establishment Clause violation.
    - 6 -
    prayer in question took place during an official police meeting,
    and   the   allegations    plausibly     showed   that   Calixto   "forced
    [Marrero] to observe the prayer[] against his will and his own
    religious beliefs."       Based on these allegations, the court also
    found that Marrero was punished for his refusal to participate in
    the prayer by being deprived of his regular duties as a PRPD
    officer.    Such treatment, concluded the court, reinforced the
    coercive nature of appellants' conduct.
    The district court then rejected appellants' claim of
    qualified   immunity.      Following    the    well-established    two-step
    inquiry for qualified immunity, the court noted that its conclusion
    on appellants' Rule 12(b)(6) defense -- that Marrero plausibly
    alleged an Establishment Clause violation -- satisfies the first
    prong of the inquiry on whether there are sufficient facts to
    establish a constitutional violation.           See Pearson v. Callahan,
    
    555 U.S. 223
    , 232 (2009).        The court then analyzed whether the
    right asserted by Marrero was "clearly established" at the time of
    the alleged incident.      
    Id.
       Surveying the state of the law based
    on Supreme Court, circuit, and district court precedents as of
    March 2012, the district court concluded that appellants violated
    a clearly established right because a reasonable officer at that
    time would have understood that "ordering a subordinate to observe
    a religious prayer given during an official meeting -- without
    giving the subordinate the ability to opt out -- would violate the
    - 7 -
    Constitution."      Appellants filed this interlocutory appeal to
    challenge the denial of qualified immunity.
    II.
    Appellants    claim    that     the    district       court   erred    in
    rejecting their qualified immunity defense because there was no
    clearly established law placing them on notice that their conduct
    was unconstitutional.         Specifically, they argue that the law at
    the time of the alleged conduct did not clearly establish that
    "[appellants']      actions    constituted       .    .    .    [s]tate-sponsored
    official prayers and not merely tolerable religious expression."
    Appellants claim, moreover, that, even if a reasonable officer
    should have known that the prayer was state-sponsored, they are
    still entitled to qualified immunity because the contours of
    Marrero's right to be free from religious coercion were not clearly
    defined at the time of appellants' conduct.                 In particular, they
    assert   that   a   reasonable    officer    would        not   have    known   that
    Calixto's order to Marrero to "abandon the formation" -- which
    they characterize as an opt-out opportunity -- was insufficient to
    pass   constitutional    muster    in     light      of   the    divergent      tests
    developed in the Supreme Court's Establishment Clause cases.
    We   review   a     district    court's        denial   of    qualified
    immunity de novo.      See Rivera-Ramos v. Roman, 
    156 F.3d 276
    , 279
    (1st Cir. 1998).      Hence, "taking the law as it stood at the time
    of the conduct in question," we address as a question of law
    - 8 -
    whether "a set of assumed facts constitutes a violation of 'clearly
    established law.'"     
    Id.
     (quoting Harlow v. Fitzgerald, 
    457 U.S. 800
    , 815 (1982)).
    A.   Qualified Immunity Standards
    Qualified immunity protects government officials from
    trial and monetary liability unless the pleaded facts establish
    "(1) that the official violated a statutory or constitutional
    right, and (2) that the right was 'clearly established' at the
    time of the challenged conduct."      Ashcroft v. al-Kidd, 
    563 U.S. 731
    , 735 (2011) (quoting Harlow, 
    457 U.S. at 818
    ); see Glik v.
    Cunniffe, 
    655 F.3d 78
    , 81 (1st Cir. 2011).       If either of the two
    prongs is not met -- i.e., if the facts do not show a constitutional
    violation or the right in question was not clearly established --
    the officer is immune.      Either prong may be addressed first,
    depending on "the circumstances in the particular case at hand."
    Pearson, 
    555 U.S. at 236
    .
    Here, appellants argue that it is unnecessary to address
    the first prong inquiry because their primary argument is that the
    second prong has not been satisfied.        We can decide based solely
    on the second prong, however, only if we concluded that appellants
    are entitled to qualified immunity on that basis.      That is not the
    conclusion we reach.
    - 9 -
    B.   Constitutional Violation
    The First Amendment of the United States Constitution
    proscribes Congress from making laws "respecting an establishment
    of religion."   U.S. Const. amend. I; see Cantwell v. Connecticut,
    
    310 U.S. 296
    , 303 (1940) (holding that the religion clauses of the
    First Amendment apply equally to the states).    As conceived, the
    organizing principle of the Establishment Clause is "governmental
    neutrality" -- between "religion and nonreligion," as well as among
    religions.    McCreary Cty., Ky. v. Am. Civil Liberties Union of
    Ky., 
    545 U.S. 844
    , 860 (2005) (quoting Epperson v. Arkansas, 
    393 U.S. 97
    , 104 (1968)); see Wallace v. Jaffree, 
    472 U.S. 38
    , 52
    (1985) (noting that the Establishment Clause guarantees religious
    liberty and equality to "the infidel, the atheist, or the adherent
    of a non-Christian faith such as Islam or Judaism").    Hence, the
    Supreme Court has held that, wherever the boundaries of the
    Establishment Clause protection may lie, "[i]t is beyond dispute
    that, at a minimum, . . . government may not coerce anyone to
    support or participate in religion or its exercise."        Lee v.
    Weisman, 
    505 U.S. 577
    , 587 (1992).
    Appellants' conduct violated precisely such a principle.
    As a threshold matter, the prayer in question was unmistakably a
    state action.   Appellants are PRPD officers who either initiated
    or participated in the prayer during an official intervention
    meeting.     Moreover, regardless of how one may interpret     the
    - 10 -
    constitutionality of the prayer in and of itself,4 the subsequent
    events   make    clear    that    appellants'    actions    (collectively)
    constituted     direct   and   tangible   coercion.     Immediately   after
    directing Marrero to "abandon the formation," Calixto ordered
    Marrero, as he was walking away from the group, to stop and stand
    still for the duration of the prayer.           Calixto then shouted, in
    front of the entire formation, that Marrero was standing apart
    from the group because "he doesn't believe in what we believe in."
    After complaining about the incident and filing an administrative
    complaint, Marrero was transferred to a post where he was deprived
    of his usual law enforcement responsibilities.
    If these actions do not establish religious coercion, we
    would be hard-pressed to find what would.             Among the "essential
    precepts" of the Establishment Clause are that "[n]either a state
    nor the Federal Government can . . . force [a person] to profess
    a belief or disbelief in any religion," and that "[n]o person can
    be punished for entertaining or professing religious beliefs or
    disbeliefs."      Cty. of Allegheny v. Am. Civil Liberties Union
    4 We do not address here the constitutionality of a prayer at
    an official police meeting in the abstract, apart from the specific
    events that occurred with respect to Marrero and the group prayer
    at the intervention meeting. For instance, as we note infra, we
    do not view Calixto's order to Marrero to "abandon the formation"
    as an opt-out opportunity and hence do not examine whether the
    prayer would still be unconstitutional, even with an opt-out
    procedure, due to the coercive pressures at play in the
    hierarchical dynamics of police work.
    - 11 -
    Greater Pittsburgh Chapter, 
    492 U.S. 573
    , 591 (1989) (quoting
    Everson v. Bd. of Educ. of Ewing, 
    330 U.S. 1
    , 15-16 (1947)); see
    Lee, 
    505 U.S. at 596
     ("It is a tenet of the First Amendment that
    the State cannot require one of its citizens to forfeit his or her
    rights and benefits as the price of resisting conformance to state-
    sponsored religious practice.").     "[R]esolv[ing] any ambiguities
    in [Marrero's] favor," Ocasio-Hernández, 640 F.3d at 17, we, like
    the district court, deem Calixto's order to Marrero to stand still
    in close proximity to the group until the prayer is concluded as
    forcing him to observe a religious practice against his will.
    Similarly,   Calixto's   comment   differentiating   and   humiliating
    Marrero based on his religious beliefs, as well as Marrero's
    demotions following the incident, allege a clear case of punishment
    on religious grounds.    Indeed, while appellants attempt to deflect
    the relevance of Marrero's reassignment by suggesting that he
    requested to work at the airport, his allegations make clear that
    it was the type of responsibilities he was given at the airport,
    and the fact that his weapon was taken away, that constituted
    demotions, not the mere fact of his transfer.
    Hence, we conclude that the first prong of the qualified
    immunity inquiry is met:     appellants violated the Establishment
    Clause by (i) forcing Marrero to observe a religious practice
    against his will and (ii) punishing him for his non-conformance.
    - 12 -
    C.    Clearly Established Law
    Appellants would still be entitled to qualified immunity
    if the right they violated was not "clearly established" at the
    time of their conduct.          A right is "clearly established" when
    "[t]he contours of the right [are] sufficiently clear that a
    reasonable official would understand that what he is doing violates
    that right."        Anderson v. Creighton, 
    483 U.S. 635
    , 640 (1987).
    Hence, while the precise violative action at issue need not have
    previously been held unlawful, 
    id.,
     the existing precedent from in
    and    out    of    circuit    "must    have    placed        the   statutory    or
    constitutional question beyond debate," al-Kidd, 
    563 U.S. at 741
    ;
    see Barton v. Clancy, 
    632 F.3d 9
    , 22 (1st Cir 2011).
    How specifically       the right, or correspondingly, the
    violative conduct, must be identified has been the subject of much
    dispute.      The Supreme Court has "repeatedly told courts . . . not
    to define clearly established law at a high level of generality."
    al-Kidd, 
    563 U.S. at 742
    .            The dispositive question is "whether
    the    violative      nature    of     particular       conduct      is   clearly
    established."       
    Id.
     (emphasis added); Anderson, 
    483 U.S. at 640
    (noting      that   the   violative    action    must    be    understood   in   a
    "particularized, and hence . . . relevant, sense").                   The inquiry
    "must be undertaken in light of the specific context of the case,
    not as a broad general proposition."            Mullenix v. Luna, 136 S. Ct.
    - 13 -
    305, 308 (2015) (per curiam) (quoting Brosseau v. Haugen, 
    543 U.S. 194
    , 198 (2004) (per curiam)).
    Here,     appellants    argue   that    there    was     no    clearly
    established law as of March 2012 that placed them on notice that
    the   prayer    was   "state-sponsored"     and    that    their    conduct    was
    coercive.      We can easily dispose of the "state-sponsored" prayer
    argument.      Calixto initiated -- and Rivera and Cruz participated
    in -- the prayer with a group of police officers during an official
    intervention meeting.        Appellants have not cited, nor have we
    identified, any case that would deem such a prayer as a voluntary
    and spontaneous exercise by private individuals.                   Even in cases
    where the persons initiating or engaging in prayer are not state
    officials, the Supreme Court has inferred state sponsorship of the
    prayer where indirect state involvement suggests an imprimatur on
    the religious practice.          See Sante Fe Indep. Sch. Dist. v. Doe,
    
    530 U.S. 290
    , 309-312 (2000) (determining that student-led prayers
    before varsity football games are state-sponsored prayers based
    on, inter alia, "the importance to many students of attending and
    participating in extracurricular activities as part of a complete
    educational      experience");      Lee,    
    505 U.S. at 580, 587-89
    (understanding the invocations and benediction prayers at a school
    graduation ceremony as state-sponsored prayers, even though the
    prayers   were    offered   by     clergy   members,      rather    than   school
    officials).      Where, as here, a religious practice is conducted by
    - 14 -
    a state official at a state function, state sponsorship is so
    conspicuously present that only "the plainly incompetent or those
    who knowingly violate the law," Malley v. Briggs, 
    475 U.S. 335
    ,
    341 (1986), would deny it.      See, e.g., Marsh v. Chambers, 
    463 U.S. 783
    , 784-86 (1983) (describing a legislative prayer offered by a
    state-employed chaplain without reference to whether the prayer is
    sponsored by state).
    Appellants' second argument regarding coercion warrants
    a closer look.   The district court found that a reasonable officer
    in March 2012 would have known that "ordering a subordinate to
    observe a religious prayer . . . without giving the subordinate
    the ability to opt out . . . would violate the Constitution."             This
    formulation of the inquiry, however, is not sufficiently specific.
    An affirmative answer to this inquiry, though accurate, would state
    an abstract principle of law, disassociated from the facts of the
    case.   See al-Kidd, 
    563 U.S. at 742
    .           Hence, in accordance with
    the Supreme Court's guidance, we frame the "clearly established"
    inquiry as follows:    appellants are entitled to qualified immunity
    if a reasonable officer in March 2012 would not have known that
    appellants'    conduct    was    coercive    in       the     situation   they
    encountered.     See   Brosseau,   
    543 U.S. at 199
    .     The   relevant
    situation, and appellants' actions, consisted of the following:
    (1) after directing Marrero to abandon the formation, Calixto
    ordered Marrero, as he was walking away, to stop and stand still
    - 15 -
    until the prayer was finished; (2) as Marrero stood in the vicinity
    of the group, Calixto shouted that Marrero was standing separately
    from the group because he does not subscribe to the same faith as
    the rest of the group; (3) after Marrero complained about the
    incident, he was stripped of his law enforcement responsibilities
    and demoted to lesser tasks.5
    With that clarification, we examine whether the law as
    of March 2012 put reasonable officers on notice that appellants'
    conduct -- ordering a subordinate, against his will, to stand
    5 Appellants attempt to incorporate their version of the facts
    into the "clearly established" prong analysis. Indeed, they argue
    that a reasonable officer would not have known that their conduct
    was coercive because the officer could have understood Calixto's
    order to "abandon the formation" as an opt-out opportunity for
    Marrero. Similarly, appellants claim that a reasonable officer
    could have understood Calixto's comment differentiating Marrero
    from the group as "nothing more than a true explanation for
    Plaintiff's legitimate right not to participate in their
    gathering."
    In the procedural posture of this case, however, we construe
    the factual allegations in the light most favorable to Marrero.
    See Ocasio-Hernández, 640 F.3d at 17. And, viewing the facts in
    this light, we conclude, as we did in the first prong analysis,
    that Calixto's orders "to abandon the formation" and then "stop
    and stand still" -- given in rapid succession -- forced Marrero to
    observe a prayer. Likewise, we do not read Calixto's comment as
    a legitimate explanation for why Marrero was standing apart from
    the group.    The comment was given, unprompted and during an
    official meeting, by a regional commander of the PRPD who had
    become "upset" upon hearing Marrero's objection to a group of
    subordinate officers standing in military formation. Cf. Mellen
    v. Bunting, 
    327 F.3d 355
    , 371 (4th Cir. 2003) (observing that
    cadets at the Virginia Military Institute were "uniquely
    susceptible to coercion" due to the cultural emphasis on "obedience
    and conformity").
    - 16 -
    nearby while his colleagues engage in a prayer and then humiliating
    and punishing him for non-conformance -- constitutes religious
    coercion.    We conclude that it did.        Indeed, the coerciveness of
    appellants' conduct is so patently evident that no particular case
    -- and certainly not one "directly on point," al-Kidd, 
    563 U.S. at
    741 -- need have existed to put a reasonable officer on notice of
    its unconstitutionality.       Nonetheless, existing precedent supports
    this inescapable conclusion.
    In Anderson v. Laird, 
    466 F.2d 283
    , 284, 291 (D.C. Cir.
    1972) (per curiam), the D.C. Circuit addressed a federal regulation
    that required cadets and midshipmen at military academies to attend
    religious   services    on    Sundays   unless   they   objected   based   on
    conscientious beliefs.        The court struck down the regulation as
    unduly coercive, despite the opt-out opportunity, because the
    "government may not require an individual to engage in religious
    practices or be present in religious exercise."                
    Id. at 291
    (Bazelon, J., concurring).       Similarly, in Mellen, 327 F.3d at 371-
    72, the Fourth Circuit held that a mandatory supper prayer at a
    military academy violated the Establishment Clause, even though
    the cadets could abstain from the prayer by avoiding the mess hall
    where the supper prayer takes place.             Hence, as of March 2012,
    these   cases   stood   for   the   proposition    that   requiring   mature
    individuals to participate in a group prayer in a setting with a
    - 17 -
    strict hierarchy amounts to religious coercion, even when an opt-
    out opportunity is provided to objecting persons.6
    Courts have also found coercion where the government
    required conformance to a religious belief as a condition for a
    benefit, such as parole eligibility for prisoners or job security
    for government employees.       Indeed, before March 2012, numerous
    courts had held that requiring prisoners to attend a program that
    has a religious component as a condition for parole eligibility is
    unconstitutional.    See, e.g., Inouye v. Kemna, 
    504 F.3d 705
    , 713
    (9th Cir. 2007) (holding that a mandatory drug treatment program
    for prisoners is "clearly coercive" where the program is rooted in
    religious faith); Warner v. Orange Cty. Dep't of Prob., 
    115 F.3d 1068
    , 1074-75 (2d Cir. 1997) (same); Kerr v. Farrey, 
    95 F.3d 472
    ,
    479-80 (7th Cir. 1996) (same).
    Courts    have   likewise    applied   the   same   principle   to
    government employment cases.      In Venters v. City of Delphi, 
    123 F.3d 956
    , 970 (7th Cir. 1997), an employee of the city police
    department sued the police chief, alleging that he violated the
    Establishment Clause by "pressur[ing] her to bring her thinking
    and her conduct into conformity with the principles of his own
    6 We reiterate that, while Anderson, 
    466 F.2d at 291
    , and
    Mellen, 327 F.3d at 371-72, could be read as suggesting that the
    prayer at issue in this case would be unconstitutional even with
    an opt-out opportunity, we do not decide that question on this
    record. As we noted in footnote 4, the facts indicate that such
    an opt-out opportunity was not provided to Marrero.
    - 18 -
    religious beliefs, and admonish[ing] her in no uncertain terms
    that she was at risk of losing her job if she was unwilling to do
    so."    Based on these allegations, the Seventh Circuit held that
    the police chief "engaged in the kind of coercion proscribed by
    the establishment clause." Id.; see also Milwaukee Deputy Sheriffs
    Ass'n v. Clarke, 
    513 F. Supp. 2d 1014
    , 1021 (E.D. Wis. 2007)
    (holding      that     the   county   sheriff      and   sheriff's     captain
    impermissibly "promoted religion through the 'coercive power of
    government'" when they invited representatives of a Christian
    organization to convey messages containing religious content to
    deputies at mandatory work meetings) (quoting Cty. Of Allegheny,
    
    492 U.S. at 660
    ),   aff'd,   
    588 F.3d 523
       (7th   Cir.   2009).
    Additionally, long before Venters, the Supreme Court held that
    requiring an individual to declare a belief in God before taking
    a public office is tantamount to "forc[ing] a person 'to profess
    a belief or disbelief in any religion,'" an emblematic example of
    an establishment of religion.          Torcaso v. Watkins, 
    367 U.S. 488
    ,
    489-90, 495 (1961).
    Appellants' attempt to create ambiguity in the law by
    analogizing this case to inapt Establishment Clause cases is
    unavailing.         Appellants cite, for instance, legislative prayer
    cases, in which the Court has relied on a tradition of ceremonial
    prayers that has long co-existed with the Establishment Clause.
    See, e.g., Town of Greece v. Galloway, 
    134 S. Ct. 1811
    , 1828 (2014)
    - 19 -
    (holding that opening town meetings with prayers does not violate
    the Establishment Clause because it "comports with our tradition
    and does not coerce participation by nonadherents").               They also
    cite cases involving government aid to religious schools, see,
    e.g., Lemon v. Kurtzman, 
    403 U.S. 602
    , 606-11 (1971), or religious
    displays on public premises, see, e.g., Van Orden v. Perry, 
    545 U.S. 677
    , 681 (2005), which employ the three-part Lemon test and
    the endorsement test, respectively.          See Lemon, 
    403 U.S. at
    612-
    13 (organizing the "cumulative criteria" developed in the Court's
    Establishment Clause cases into three standards, the third of which
    prohibits "excessive government entanglement of religion"); Lynch
    v. Donnelly, 
    465 U.S. 668
    , 688 (1984) (O'Connor, J. concurring)
    (articulating   the    endorsement   test    as    prohibiting    sending   "a
    message to nonadherents that they are outsiders, not full members
    of   the   political   community,    and    an    accompanying   message    to
    adherents that they are insiders, favored members of the political
    community").
    None of these cases remotely resemble what we have
    here -- an objecting individual who was forced to observe a prayer
    and humiliated and punished for his non-conformance.             Ambiguity in
    the law cannot be manufactured by borrowing from factually and
    legally distinguishable cases.       See El Dia, Inc. v. Rossello, 
    165 F.3d 106
    , 110 n.3 (1st Cir. 1999) (noting that "the location and
    level of the precedent, its date, its persuasive force, and its
    - 20 -
    level of factual similarity to the facts before this Court may all
    be   pertinent    to    whether    a    particular       precedent   'clearly
    establishes'     law   for   the   purposes     of   a   qualified   immunity
    analysis").      However complex the nuances of the Establishment
    Clause doctrine may be for cases without the direct coercion
    present in this case, a reasonable officer in March 2012 would
    have known that appellants' conduct amounted to direct and tangible
    coercion, a paradigmatic example of an impermissible establishment
    of religion.
    The district court's denial of qualified immunity is,
    therefore, affirmed.
    So ordered.
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