To:                 All Police Chiefs and Sheriffs

From:             Martin J. Mayer, Esq.


March 24, 2011

On March 15, 2011, the Ninth Circuit U.S. Court of Appeals ruled that the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) applied to persons temporarily detained at the holding facility of the Santa Ana Courthouse.  In the case of Khatib v. County of Orange, et al, the Court ruled that requiring the plaintiff, a Muslim woman, to remove her headscarf while in the courthouse holding facility might have violated her rights under RLUIPA.

In a unanimous en banc decision, the Court reversed an earlier decision by a trial court and a three judge panel and remanded the matter to the district court to determine if security concerns justified prohibiting the plaintiff from wearing her scarf, or hijab.

Khatib had pled guilty to a misdemeanor and was sentenced to probation.  Subsequently, the judge revoked her probation and she was detained in the court’s holding facility where she was forced to remove her hijab.  She sued Orange County and the Sheriff claiming that she was denied her rights under the law.


RLUIPA “prohibits state and local governments from imposing ‘a substantial burden on the religious exercise of a person residing in or confined to an institution’ unless the government demonstrates that imposing that burden ‘is the least restrictive means’ of furthering ‘a compelling governmental interest’.”

The Ninth Circuit noted that the only question presented to it was “whether Orange County’s facility is an ‘institution’ under RLUIPA;  other courthouse or detention facilities have unique characteristics that warrant individualized review.”  Furthermore, the Court said, “Congress has explicitly directed us to resolve any ambiguities in RLUIPA in favor of a broad protection of religious exercise, to the maximum extent permitted.”  (Emphasis in original.)

Under RLUIPA, an institution is defined as “a jail, prison, or other correctional facility [or] a pretrial detention facility.  Under the ordinary, common meaning of these terms, the Santa Ana Courthouse holding facility falls within the definitions of a ‘pretrial detention facility’ and of ‘jail’.”

The Court rejected the County’s argument, stating that “the County would have us construe RLUIPA to categorically exclude a pretrial detention facility that holds up to 600 inmates a day simply because it is located in the courthouse and the inmates are confined there for relatively short periods.  We do not embrace such a restrictive interpretation in light of the plain language of the statute and the clearly expressed congressional intent.”

Nonetheless, the Court ruled that “the County’s arguments will not go unaddressed.  RLUIPA tasks courts with deciding, on a case by case basis, whether the particular restrictions an institution imposes on the religious liberty of its inmates are justified.”


The Court did not hold that restrictions on the religious rights of inmates cannot be restricted – it held that, when a facility is covered by RLUIPA, such restrictions must be shown as justified and necessary.

In citing to a U.S. Supreme Court decision, Cutter v. Wilkinson, 544 U.S. 709 (2005), the Ninth Circuit stated that “[s]hould inmate requests for religious accommodations become excessive, impose unjustified burdens on other institutionalized persons, or jeopardize the effective functioning of an institution, the facility would be free to resist the imposition.”

What is important to note is that, virtually, all facilities where inmates are detained could be found to fall under the protections of RLUIPA.  As such, if any law enforcement agency has such a facility, and it imposes restrictions on the exercise of religious freedoms, it must be prepared to show that they are necessary and justified as set forth above.

All issues involving the law should be discussed with your agency’s attorney and legal advice and guidance should be secured from your counsel.

As always, if you wish to discuss this matter in greater detail, please don’t hesitate to contact me at (714) 446 – 1400 or via e-mail at mjm@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute an attorney-client relationship