Eugene Volokh, principal character at the eponymous Volokh Conspiracy, is a professor of Law at UCLA. Among the subjects he teaches an writes about is Constitutional Law, with particular emphasis on the 1st Amendmendment, which governs free speech and religious liberty. He points to an interesting court case that comes out of the State of Washington.
The case involves not only qat, but religious sensibilities concerning dress as well as police conduct while conducting searches under warrant. In the case, a Muslim woman was taken from her home in a state of undress (by almost any standard, not just Muslim standards) while police carried out a search of her home. She requested that she be permitted to cover herself modestly, as required by her understanding of her religious duty. The police did not so permit. She sued for deprivation of her religious liberties. The court did not agree, at least to the point of accepting that the police misbehaved or deprived her of her rights.
Interesting Religious Accommodation Case
Eugene Volokh
It’s Jama v. United States (W.D. Wash. Mar. 2, 2010):
This controversy stems from a July 2006 raid of Plaintiff’s residence by federal and local law enforcement authorities. Officials were searching for evidence relating to the importation and distribution of khat, a leafy herb indigenous to the Horn of Africa and the lower Arabian Peninsula, where residents have long chewed the plant’s leaves for its stimulative effects. Khat itself is legal in the United States, but the plant’s stimulative effects come from cathonine and cathine, which are classified as Schedule I and IV drugs, respectively. Khat is typically consumed fresh, because the cathinone breaks down into cathine within two to three days after harvesting. When a person ingests cathonine by consuming fresh khat, he is therefore violating American drug laws….
Plaintiff was not a suspect, and was not indicted by the grand jury. Because one of the suspects shared her apartment, however, her residence was among those be searched: Plaintiff’s uncle Abdigafar Ali Hassan had picked up one package believed to contain khat at a local FedEx facility on May 18, 2006, and a second package on July 13, 2006….
The search was conducted in the early-morning hours of July 26, 2006…. Plaintiff was in her bedroom when police entered her home. She “heard a crash and they barged into my home.” Dressed in a night gown without a bra or underwear beneath, she walked out of her bedroom, and saw men in black running up the stairs toward her with their guns drawn. Plaintiff states that she “did not hear the people say they were police officers or why they were there.” Officers forced her to the ground and tied her hands behind her back. At some point, it was made clear to Plaintiff that her home had been entered by law-enforcement officers.
Officers detained a total of five individuals, including Plaintiff, while they searched Plaintiff’s apartment for evidence relating to khat distribution. The other four detained individuals were men, and two of them were not members of Plaintiff’s family. This caused Plaintiff distress because her Muslim faith prohibits her from appearing in a state of undress or from appearing without a head scarf before unrelated males. Plaintiff is not a fluent English speaker, so she asked her uncle Mr. Hassan, who was also detained, to request a cover for her hair and body from police officers. Defendant Smith refused Plaintiff’s requests for modest clothing, and photographed her in the nightgown and without a head scarf. After taking the photographs, Defendant Smith placed a loose piece of cloth over Plaintiff’s head. Approximately one hour after the officers entered Plaintiff’s apartment, they moved the detainees outside. Plaintiff was still wearing nothing more than her nightgown. Because Defendant Smith had failed to secure the piece of cloth, it fell off Plaintiff’s head as she was walking outside. Plaintiff, whose hands were still tied behind her back, was unable to grab the cloth and cover herself.
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March:06:2010 - 17:12
This sort of stuff bothers me a lot. UNLESS covering herself was somehow integral to the crime(which I can’t imagine under what circumstances it might be) there was absolutely no reason to humiliate this woman the way they did. This would be embarrassing for even a liberal woman who might not have such issues with being seen in a nightgown. But for a woman who clearly needs it for a religious purpose and in her entire life would never be found in such a state of undress except in front of her husband it is doubly wrong. Not only is she being arrested wrongly she is paraded around in personal clothes WITHOUT the minimum of panties and a bra to give her a sense of decency. Her uncle asked and explained why she needed it. I don’t even see it as a matter of being disrespectful to Islam. It is disrespectful to the human spirit and unnecessarily brutish. What effort would it have taken for him to allow her a bathrobe or a scarf on her head? Why should a woman be paraded around in nightclothes, Muslim or not, that might be see through or revealing? I do think the behavior is actionable and a little sensitivity training is in order.
March:06:2010 - 17:27
It’s a tough case. I think the court simply punted the decision to some other court (any other court). The decision stated that nowhere was there any clear precedent (in law) that accommodating her religious obligation (as she saw it) over-rode the police’s interest in both their own safety and in securing a search scene. If she were permitted to go back into the house, would she have access to a weapon? If she were permitted back in the house, would she be in a position to destroy evidence? That is a legitimate concern and the court said the state’s concern prevailed over hers.
Lots of people are arrested in a state of complete undress (i.e., naked). While most cops will make some provision to cover that nakedness, in many jurisdictions they are not required to do so, at least until they get to booking in the jail. It is indeed ironic that were a person to present him/herself in public without clothing in most states, that would be a criminal offense. If the police make you do it, you swap criminal liability for embarrassment.
This is the decision of a state court. If it were to arise in another state’s court or in a federal court, I think a different decision might result. If a federal court found differently, that could provide an over-riding judgment and precedent for future cases, at least in that court’s district. Perhaps it could even reach the Supreme Ct., in which case it would become universal across the country.
One lesson to take away is that if you’ve got people associated with drugs living in your house, you might want to pay a bit more attention to your sleepwear. At least in Washington State.
March:06:2010 - 20:18
I personally think it’s just another example of disrespect for women. Surely for him to grab a coat out of a closet for her would not have been that difficult? I would have been embarrassed in the same situation and I’m not muslim…
If the police expect our respect then they ought to treat us with that same respect. And more so when dealing with those whose customs they don’t understand. It’s not as if she was being belligerent or making an completely unrelated request. This is just bad PR all around.
March:06:2010 - 21:27
I think you might be jumping to a conclusion here, or at least taking the argument beyond known facts.
It is the woman who brought suit, so her circumstance is known. We know nothing of how or if the males involved were dressed, nor how the police did or did not meet their needs.
From my experience, Muslim men are actually more prudish than women in some regards. Women, for example, will strip off in a Turkish bath (sex-segregated, of course), while men will not. The men never let themselves be totally uncovered in the presence of other men.
March:06:2010 - 21:33
John’s concern that the woman may have destroyed evidence or got weapon from her room is legitimate. However, Oby and Krista are also right that the police should treat a woman respectfully while conducting a search. This could be easily achieved by taking an armed female policewoman with them, who could go and stay with the woman inside the room while she dressed. This was not a problem that couldn’t be solved. While going to search a house, I think a police team should include male as well as female staff.
March:06:2010 - 23:31
I don’t even think that the woman needs to reenter the house. the grabbing of a weapon is a legitimate concern for sure. All the officer had to do was give her a bathrobe or a covering and a scarf for her head which I am sure was probably laying not far since she would wear it daily. I can certainly understand the element of surprise being a tool the police would want to use to their advantage…but once the surprise is done, at least treat people with a bit of dignity unless the smoking gun is right out in the open…what happened to innocent until proven guilty?
The thing is the police in other parts of the world (I am thinking Britain) seem to have a sense of propriety and a level of decency that I think american police lack.
As far as knowing your roommate…a good suggestion but sometimes even those we know well can turn against us and do things they shouldn’t. And who is going to stop them? Nowadays, anyone paying rent would claim it is their private space and invading it would be invading their rights. I don’t know if that would hold water legally but a case could at least be made.
March:06:2010 - 23:38
I don’t think religion is even the most relevant thing here. It seems once the people/situation was secure there was no reason not to hand this poor woman a robe and scarf. She was not even a suspect. And I think they should do that for anyone who lands in that position.
March:07:2010 - 07:49
I do agree with you. Policeman, worldwide, sometimes have a tendency to believe that what’s good or convenient for them is what the law ought to be. When it involves drug raids, there’s a further tendency toward being pitiless. If they don’t see an issue, it’s not an issue. It would not have hampered police activity to have provided some clothing for this woman. They were not, however, required to do so by law. So they didn’t.
March:07:2010 - 10:08
Agreed. I can also see it’s hard to legislate consideration- but it would sure be nice. And I would hope it’s part of their training.