Inmate’s hijab lawsuit survives

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A Muslim woman incarcerated at a federal institution in Minnesota filed a lawsuit because she was required to remove her hijab to take a photo for her prison ID card. Although the federal court dismissed her complaint against some of the prison officials, it did not against the others, raising concerns that the officials’ conduct could recur despite voluntarily ceasing.

Muna Jama is incarcerated at Federal Correctional Institution Waseca. She is a practicing Muslim. Since childhood, Jama has worn a hijab and does not willingly appear in public spaces without it. If Jama appears in a mixed-gender space with people other than in her immediate family, her hijab is on. Jama contends that being seen without her hijab violates her religious practice, and, according to her complaint, is a “deeply humiliating and defiling experience.”

Jama arrived at FCI Waseca in 2019. She was told that she must have a booking photo taken. Although Jama told the officers that she wears the hijab because of her religious beliefs, and that she wanted to wear it in the booking photo, the person taking the photo said that she needed to remove it for the photo or go into solitary confinement. Jama assented and took the photo without the hijab.

The photo was also used on her prison ID card, something that she must carry with her at all times. Prison ID cards are used during headcounts, meals, and at commissary. Each time she swiped the card, the image appeared on the database screen and was visible to all. Additionally, the photo was in a book that officers referenced during bed count as well as on her locked.

Jama filed a complaint in 2022. She was permitted to take a new photo with a hijab. However, she was told she needed to take another photo without the hijab. Although she objected, she was told she would have to spend time in the special housing units if she resisted. She took the second photo without a hijab.

After Jama lost her ID card, she was issued a new copy without her hijab. She discovered that her photo without the hijab was being used in the book to conduct the bed count and on her locker. Jama reported extreme mental anguish, trauma, and emotional distress as a result.

In October 2023, Jama filed a complaint in federal court alleging that the Bureau of Prisons and officers violated her religious rights under the Religious Freedom Restoration Act (RFRA). Then, in January 2024, Jama filed an emergency motion for a preliminary injunction, requesting to court to order requiring the facility to have a photo of Jama with her in the hijab on their database, to stop using the uncovered photo to identify Jama during her daily activities and programing, and replace Jama’s photo ID case with a photograph of her wearing the hijab.

In February 2024, FCI Waseca initiated a waiver for Jama’s identification, referred to as a “dual photograph process.” Essentially, Jama’s photo ID card and photo used in everyday activities would be the photo in which she wore a hijab. However, another photo without the hijab would be taken by a female photographer and would be highly restricted and only viewed in the event that Jama escaped. However, this waiver is up to review each year and is extendable depending on certain conditions being met. Jama agreed to this and withdrew her motion for a preliminary injunction.

The defendants — both the official capacity and individual capacity — moved to dismiss Jama’s RFRA claims. The court did grant the individual capacity defendants’ motion to dismiss the RFRA claim, asserting that they were entitled to qualified immunity. It found that Jama did not identify a clearly established right that the individual capacity defendants allegedly violated.

“Jama has failed to point to binding authority which would have given defendants a fair warning that their enforcement of the generally applicable identification policy violated Jama’s rights under RFRA,” wrote U.S. District Judge Jeffrey Bryan. “To the contrary, other courts addressing this and similar issues have concluded that the Constitution did not clearly prohibit conduct similar to that alleged here.”

However, the court did not grant the official capacity defendants’ motion to dismiss. These defendants asserted that Jama’s claim for injunctive relief was moot because they voluntarily ceased the conduct that Jama complained about. Because the conduct could recur, however, the court found that the defendants did not carry their burden to establish mootness. The court was not convinced because the official capacity defendants did not explain how the dual photograph waiver would more certainly prevent recurrence of the conduct Jama took issue with.

“Jama alleged that, although she received an initial waiver to the BOP’s policy after filing a grievance, this initial waiver did not prevent the challenged conduct from recurring,” Bryan asserted. “The Official Capacity Defendants do not offer any explanation or argument why the initial waiver was not followed.”

The court also noted that the dual photograph waiver was subject to annual review that was based on unknown criteria and conditions. “The record presented, however, contains no evidence pertaining to how the BOP determines the ongoing value of conditions supporting a waiver,” Bryan wrote. “Likewise, the record does not include evidence concerning what conditions besides the existence of Jama’s stated religious objection would be considered in the review of the current dual photograph waiver.”

Additionally, the court maintained that the official defendants still have images of Jama without her hijab. “Jama requests an order requiring the Official Capacity Defendants to destroy photographs and security-camera footage of her without a hijab,” Bryan maintained. “The current dual photograph waiver does not address the destruction of existing photographs.”

Also:

NYC settles suit by women forced to remove hijabs