Close Shave: Muslim Inmate Asks 10th Circuit to Revive Religious Discrimination Lawsuit

(CN) --- A Muslim man forced to shave his beard during intake by a Colorado corrections officer asked the 10^th Circuit on Friday to overturn a lower court's granting of qualified immunity to revive the case.

During intake in 2016 for a 90-day prison sentence for parole violations, Colorado Department of Corrections Sergeant Thomas Currington ordered Tajuddin Ashaheed to shave his beard. When Ashaheed asked to keep his beard as a follower of the Sunnha practice under the Islam faith, Currington said the prison’s religious exception only applied to full beards and threatened to throw him into solitary confinement if he didn't shave.

Left beardless during the holy month of Ramadan, Ashaheed sued the officer for violating his religious rights in December 2017. Obama-appointed District of Colorado Judge William J. Martinez accepted Currington’s argument for qualified immunity and granted his motion to dismiss on May 26, 2020.

“I want to be clear, I have no problem with the regulation itself, or with the rationality of the regulation,” Ashaheed’s attorney, David Shapiro of the Roderick & Solange MacArthur Justice Center in the Northwestern Pritzker School of Law, told a 10th Circuit panel Friday.“We are challenging Currington’s freelance departure in violation of the regulation.”

Obama-appointed U.S. Circuit Judge Scott Matheson Jr. questioned whether Currington’s misapplication of the beard exception showed religious animus or whether it was merely an arbitrary decision.

“Doesn’t that mean it had nothing to do with religion?” Matheson asked.

Citing the 1978 case Turner v. Safley, Shapiro said what motivated Currington was beside the point.

“It is an objective inquiry as to whether there is a limitation on the exercise of faith,” Shaprio argued.

On rebuttal, Joshua Luna from the Colorado state attorney’s office met resistance from Obama-appointed U.S. Circuit Judge Carolyn B. McHugh when he tried to show Currington had made a simple mistake.

“Does it matter that Currington originally threatened retaliation, that Ashaheed would be thrown into the hole, into solitary confinement?” McHugh asked. “How could we possibly look at these statements and say well, we can assume that this was just a big mistake?”

Luna explained that in the context of the prison intake process, the threat wasn’t necessarily unusual.

“While Currington’s ‘I don’t want to hear about it,’ isn’t a sugar-coated response, it says nothing about Ashaheed’s religion,” Luna argued. “That is a reflection of what may happen in the prison setting when an officer gives what he believes to be a direct, lawful order and is meeting resistance to that. It has nothing to do with Mr. Ashaheed’s faith.”

Luna additionally argued that Currington had made all of the inmates shave their beards without exception.

U.S. Circuit Judge Michael R. Murphy, a Bill Clinton appointee, rounded out the panel. The hearing was held remotely and broadcast via YouTube. The court did not indicate when or how it will decide the case.

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