Marrero-Mendez v. Calixto-Rodriguez ( 2016 )

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. at741 -- 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.
- 21 -