[00:00:00] Speaker 01:
Junior versus Shin, and I would like to thank the attorneys and students from the Georgetown Law Appellate Clinic, Appellate Courts Emerging Clinic for taking this case pro bono.

[00:00:11] Speaker 01:
Do you plan to reserve time?

[00:00:13] Speaker 00:
Yes, Your Honor, I'd like to reserve two minutes for rebuttal.

[00:00:15] Speaker 01:
Okay, and please watch the clock.

[00:00:17] Speaker 01:
That 15 includes your rebuttal time.

[00:00:21] Speaker 00:
May it please the court, the district court held that even if defendant's interruption of Charles Neely's Jumah prayer was motivated by anti-Muslim animus, that fact was irrelevant to the free exercise clause analysis.

[00:00:35] Speaker 00:
That holding is flatly inconsistent with this court and Supreme Court precedent in Lakumi Masterpiece and Fellowship of Christian Athletes, which held that government action rooted in religious hostility violates the free exercise clause.

[00:00:49] Speaker 00:
Under those cases, religiously hostile non-neutral government action doesn't just trigger strict scrutiny.

[00:00:57] Speaker 00:
It invariably fails it.

[00:00:59] Speaker 04:
Council, do we have to find hostility to find in favor of your client?

[00:01:05] Speaker 00:
No, Your Honor.

[00:01:06] Speaker 00:
There is also a substantial burden because Mr. Neely was put to the coercive choice of either violating his religious beliefs by stopping his prayer or facing prison discipline.

[00:01:17] Speaker 00:
And so you see at ER 131 that he testified that it is his sincere religious belief that to stop praying while he's in the midst of prayer violates his religious beliefs.

[00:01:26] Speaker 00:
And so that's a coercive choice, just the same as in Ward versus Walsh.

[00:01:30] Speaker 00:
It's the same thing as putting a prisoner to eating pork, for instance, if their religious beliefs forbid that, or obeying prison orders.

[00:01:38] Speaker 00:
And so it's the exact same thing here.

[00:01:40] Speaker 00:
And I do want to clarify that it doesn't matter that Mr. Neely actually continued praying because in Walker versus Beard, this court made clear that whatever choice the prisoner takes in terms of either continuing the religious practice or obeying the prison orders doesn't matter for the purposes of the substantial burden test.

[00:01:56] Speaker 01:
If you understand, RLUPA statutorily requires a finding of substantial burden, but I understood your brief to also be arguing that for the free exercise clause, the substantial requirement has been abrogated.

[00:02:09] Speaker 01:
If we were to agree with you for RLUPA, do we need to reach that issue?

[00:02:15] Speaker 01:
I think that if we were to agree that there is a substantial burden, which is what courts have done in the past and then therefore just not decided whether the substantiality requirement has been abrogated in the free exercise context, is there a reason why we would need to reach that issue in this case?

[00:02:32] Speaker 00:
You would not need to reach that issue, but I would just urge the court that it's quite strange to have the substantial burden analysis existing the way that it does for a number of reasons, but I think most evidently in the cases where there's a challenge to a non-neutral government action.

[00:02:47] Speaker 00:
Because applying a substantial burden requirement in those cases, without at least saying that the lack of neutrality itself is the substantial burden, is quite in tension with the Supreme Court's and the court's en banc cases.

[00:02:58] Speaker 00:
Because in all those cases, the court considers whether the action at issue was non-neutral and said most recently, for instance in Kennedy versus Bremerton, that to demonstrate a free exercise clause violation, a petitioner need only show that a sincere religious exercise was burdened pursuant to a non-neutral government act.

[00:03:14] Speaker 01:
Does there need to be finding of animus though?

[00:03:17] Speaker 01:
And I think this is where some of the issues are perhaps conflated.

[00:03:22] Speaker 01:
My understanding is that when there is a neutral and generally applicable policy, that is when there's essentially no exception for, regardless of the degree of burden.

[00:03:36] Speaker 01:
But there's then, and I think there is no, there's a concession

[00:03:41] Speaker 01:
here are an agreement on both parties' parts that there is no generally applicable policy at issue here, so we're not in that line of cases.

[00:03:51] Speaker 01:
Then the question really is, what are the requirements to state a free exercise claim when the state action at issue

[00:03:58] Speaker 01:
is not a neutral and generally applicable policy.

[00:04:01] Speaker 01:
And then they're reading Smith versus Washington, which everyone agrees abrogated, our prior president agrees abrogated the centrality requirement.

[00:04:14] Speaker 01:
And a footnote essentially says centrality,

[00:04:17] Speaker 01:
The burden test is centrality in another name.

[00:04:21] Speaker 01:
So I think there then it becomes a question in my mind whether when we recognize the abrogation of the centrality test that necessarily also abrogated the substantiality requirement.

[00:04:35] Speaker 00:
Yes, Your Honor, I think that it did.

[00:04:37] Speaker 00:
And I think that it did because when, in Shakur versus Shiro, for instance, like the court said that the sincerity test is all that determines whether a free exercise claim has been stated.

[00:04:48] Speaker 00:
And I think it's important to understand that the centrality analysis and the substantial burden analysis are very often interchangeable in a lot of ways.

[00:04:56] Speaker 00:
And so when a court is asking whether a petitioner is shown a substantial burden, another way of asking that question is how important is the thing that

[00:05:04] Speaker 00:
has been burdened or been taken away.

[00:05:06] Speaker 00:
And I think you see that really clearly here because the district court in order to reach its holding necessarily had to conclude that Mr. Neely's belief in uninterrupted prayer was less important than other beliefs because, you know, in other cases like the court has said that a belief in not eating religiously forbidden food is very important and so ordering a prisoner to violate that belief counted as a substantial burden.

[00:05:28] Speaker 00:
And the only way to draw a distinction between that line of cases and the facts here are to say that Mr. Neely's belief in interrupted prayer is more peripheral.

[00:05:37] Speaker 00:
And that's just, you know.

[00:05:39] Speaker 03:
OK.

[00:05:39] Speaker 03:
You're speaking pretty fast for me.

[00:05:43] Speaker 03:
The conduct here that constitutes the burden was what, the interruption of prayer?

[00:05:50] Speaker 00:
Yes, it was the interruption of prayer, but it was also the manner that the interruption happened.

[00:05:56] Speaker 03:
But this happened once?

[00:05:57] Speaker 00:
It happened twice on the day an incident.

[00:06:00] Speaker 00:
First, the prayer was interrupted because the guards believed that Mr. Neely had left the room when he was not supposed to, although he testified in his deposition that he had never been told not to leave the classroom.

[00:06:13] Speaker 00:
And so it was interrupted once.

[00:06:14] Speaker 00:
And at that point, Mr. Neely also testified later that Sergeant Milligan, who was one of the people who

[00:06:20] Speaker 00:
Interrupted later apologized to him saying that she'd interrupted under false pretenses because she'd been told that he's been disobeying orders But that wasn't actually what it was all the same day It was all the same same prayer same prayer and then so there was an interrupted once they gave them some additional time until 140 as reflected excuse me, I thought that the

[00:06:41] Speaker 04:
The record also contained evidence that the Juma prayer was suspended again on two other occasions in March and April of 2020, not just the one incident.

[00:06:56] Speaker 04:
Is that correct?

[00:06:58] Speaker 00:
Yes, your honor.

[00:06:58] Speaker 00:
I apologize.

[00:06:59] Speaker 00:
I was talking about the day of the incident, but there were certainly other additional cancellations of Juma prayer on March 27th and on

[00:07:07] Speaker 00:
April 5th, and there was also the eight-week suspension.

[00:07:10] Speaker 00:
So we're bringing claims as to both the interruption on November 22nd and the suspension.

[00:07:15] Speaker 04:
I have a question about the eight-week suspension.

[00:07:19] Speaker 04:
It appears that it is correct that the remaining defendants did not participate in making that eight-week suspension decision.

[00:07:31] Speaker 04:
But if I'm reading it correctly, you are not contending on appeal that there was an error in dismissing the other defendant who was responsible.

[00:07:45] Speaker 04:
Am I reading that correctly?

[00:07:47] Speaker 00:
We are contending that there was an error in dismissing Deputy Warden Carr.

[00:07:51] Speaker 04:
Where is that in your opening brief?

[00:07:54] Speaker 00:
We didn't raise that in our opening brief.

[00:07:55] Speaker 04:
Well, then you didn't raise it as far as our jurisprudence is concerned.

[00:08:00] Speaker 04:
Well, we raised it as a response to the defendant's argument in their red brief because they... Well, normally we don't consider issues not distinctly argued in the opening brief.

[00:08:16] Speaker 04:
That is our policy and our practice.

[00:08:19] Speaker 00:
Yes.

[00:08:20] Speaker 00:
Well, this court has the discretion to consider issues that would not prejudice the defendants, and here we raise Deputy Worden Carr because the defendants have attempted to shift liability from Chaplain Willis by explicitly blaming Deputy Worden Carr in their red brief at 28.

[00:08:35] Speaker 00:
And so we raised the issue with a screening order as a response to that, and it also wouldn't prejudice

[00:08:42] Speaker 00:
warden Carr to reverse the screening order because he was screened out already.

[00:08:47] Speaker 00:
So he wasn't served and he would have a chance below to be served and give all his arguments.

[00:08:53] Speaker 00:
So we don't think that it would prejudice the defendants to reverse the screening order.

[00:08:58] Speaker 00:
But I do want to also emphasize that our argument is that Chaplain Willis was also involved in imposing the suspension.

[00:09:04] Speaker 00:
And we think that the defendants have said that there were a number of decision makers who were involved in making this decision.

[00:09:09] Speaker 00:
and we think a reasonable jury could easily find that Chaplain Willis was among them, given that he was the person who ran the Juma services, who was the only witness to the incident question that led to the suspension.

[00:09:20] Speaker 04:
That doesn't mean he decided on the suspension.

[00:09:24] Speaker 04:
He may have dealt with the initial incident, but have had nothing to do with the suspension.

[00:09:29] Speaker 04:
I don't understand why that follows as a matter of logic.

[00:09:34] Speaker 00:
So, Your Honor, I think that that context is just important to reviewing the record evidence that suggests that he was involved in this as much, nor that a residual jury could so conclude.

[00:09:44] Speaker 00:
So, for instance, at record 38, he states, in consultation with Chaplain Henry, Juma services are scheduled to resume on January 24th, 2020.

[00:09:56] Speaker 00:
And then he goes on to say, on November 22nd, this office received notification that inmates were not following directives.

[00:10:04] Speaker 00:
And so I think from there a reasonable jury could infer that he was involved in a consultation deciding how long the suspension would persist and clearly also bringing in the reason that the suspension was imposed in the first place.

[00:10:17] Speaker 00:
And then if you look at excerpts of record 55, there's an email on the day of the incident from Chaplain Henry when he says that because the office received a notice of the inmates not refusing directives,

[00:10:28] Speaker 00:
that services would be deactivated and that we will review the status of services in a couple of weeks.

[00:10:36] Speaker 00:
And so I think reading those two pieces of documentary evidence together, a jury could easily conclude that the discussion that Chaplain Henry referenced at ER55

[00:10:43] Speaker 00:
was in fact the consultation with Chaplain Willis, referenced in ER 38.

[00:10:47] Speaker 00:
And at this stage in the summary judgment record, I mean, you know, the only way really to accept defendants argument is to draw all inferences in their favor, but at this stage of the proceeding, the inferences should be drawn in Mr. Neely's favor.

[00:11:01] Speaker 00:
And that's their only argument on the suspension.

[00:11:03] Speaker 00:
Also, they've not provided any penological interest to justify it.

[00:11:06] Speaker 00:
So if you agree with us that there is at least a reasonable jury could conclude that Chaplain Willis was involved in the decision, then they've conceded all the rest of the argument.

[00:11:17] Speaker 00:
And I also want to emphasize that the district court made a legal error in emphasizing that Chaplain Willis had to be the one person who made the decision to impose the suspension.

[00:11:27] Speaker 00:
Because the way that the Section 1983 liability precedent works in this court is that it's not that he needed to be the initial decision maker or the prime mover of this incident.

[00:11:38] Speaker 00:
He just had to participate in the constitutional violation as more than a mere bystander.

[00:11:42] Speaker 00:
And I think that given the record evidence and his role in the prison as well, it's quite easy to conclude that he did.

[00:11:51] Speaker 00:
I also think a jury could conclude as well that he had some interest in imposing the suspension because of the evidence of animus in the record.

[00:11:58] Speaker 00:
So you see it, like excerpts of record 121, that he responded to the violent ICS interruption of Mr. Neely's prayer by saying, I was very inspired.

[00:12:08] Speaker 00:
And I think it's very hard to understand why anyone would react to a violent incident like that in that way, unless it was some sort of expression of animus.

[00:12:16] Speaker 00:
And there's also the fact that he called them terrorists, another expression of animus.

[00:12:19] Speaker 00:
So I think that's part of the context as well, that if not only was he in these meetings, but he seemed to have an interest in

[00:12:26] Speaker 00:
in stopping the Muslim prisoners from praying.

[00:12:30] Speaker 00:
Thank you.

[00:12:31] Speaker 00:
Would you like to reserve the rest of your time?

[00:12:32] Speaker 00:
Yes, thank you.

[00:12:54] Speaker 02:
Good morning, Your Honors.

[00:12:55] Speaker 02:
Nancy Davis here on behalf of the defendants, appellees, Chaplain Willis, Sergeant Milligan, and Officer Hall.

[00:13:02] Speaker 02:
I want to start with the issue that my colleague discussed last, and that's the alleged claim, or their claim, that Chaplain Willis was allegedly involved in the decision to suspend the subsequent prayer sessions.

[00:13:18] Speaker 02:
is a flat misstatement of the record.

[00:13:20] Speaker 02:
The only thing that this court really needs to look at is the actual document in question, which appears at... It's a response to Mr. Neely's letter dated January 17th, 2020.

[00:13:41] Speaker 02:
And it indicates that he had checked with the other chaplain and that the prayer services were to resume the next week.

[00:13:47] Speaker 02:
So they're relying on that letter that is post-dated well after a number of the suspensions have already occurred to suggest that somehow Chaplain Willis was involved in the decision.

[00:13:58] Speaker 02:
That's not what that letter shows.

[00:14:00] Speaker 02:
Additionally,

[00:14:02] Speaker 04:
What is your response to the argument that we have discretion to consider the dismissal of the person responsible and that that is an appropriate exercise of our discretion?

[00:14:19] Speaker 02:
I think that my colleague is incorrect on that, Your Honor.

[00:14:23] Speaker 02:
I would point out that they did not raise that as the court correctly noted in their opening brief.

[00:14:27] Speaker 04:
Yes, but their argument is that notwithstanding that, we have discretion to consider an issue that doesn't prejudice the other party when it is raised too late.

[00:14:42] Speaker 04:
In other words, it's not a jurisdictional problem, it's a prudential problem.

[00:14:47] Speaker 02:
My response to that, Your Honor, respectfully, is that defendant is not a party to this action.

[00:14:53] Speaker 02:
I don't represent them.

[00:14:54] Speaker 02:
I think there's ethical concerns with me asserting positions for somebody I don't represent and who's not a party to the action.

[00:15:01] Speaker 02:
I can state that the record below indicates neither at the summary judgment stage nor up until just recently did they ever attempt to raise that argument.

[00:15:12] Speaker 04:
So you're not actually opposing their argument.

[00:15:16] Speaker 04:
You're not responding to it because you don't represent the individual.

[00:15:19] Speaker 04:
Is that what I'm understanding your answer to mean?

[00:15:21] Speaker 02:
I think it would be inappropriate, Your Honor, for me to make a legal argument for a client that I don't represent.

[00:15:29] Speaker 02:
I think that there is sufficient evidence on the record for this court to find that it would not be appropriate to do that.

[00:15:38] Speaker 02:
With respect to the suspension of the group prayer sessions for the time period after the November 22, 2019 incident, the email at issue establishes that it was not Chaplain Willis that had done it.

[00:15:53] Speaker 02:
The decision was made on that day.

[00:15:55] Speaker 02:
by another chaplain in consultation with a deputy warden and a pastoral administrator, and that was an email that was sent out from somebody who's not a party to this action.

[00:16:06] Speaker 02:
Moving on to the November 22, 2019 issue, which I think takes up the bulk of the briefing and the argument in this case, this circuit in Canal v. Leiter and in subsequent decisions

[00:16:19] Speaker 02:
requires a substantial burden analysis.

[00:16:22] Speaker 04:
Why isn't this a substantial burden?

[00:16:24] Speaker 04:
I mean it turns out that in my religion it doesn't really much matter if you're interrupted but that's irrelevant and the only evidence we have here is that it is extremely important to have uninterrupted prayer and that to be interrupted is substantially burdensome and against the religion.

[00:16:49] Speaker 02:
Certainly, Your Honors.

[00:16:51] Speaker 02:
I would start with the concept that Mr. Neely is incarcerated.

[00:16:54] Speaker 02:
And so while inmates do have a First Amendment right to freely exercise their religious beliefs, including Mr. Neely, that comes with some necessary restrictions.

[00:17:06] Speaker 01:
That comes at the next step in the analysis.

[00:17:08] Speaker 01:
Here, the only question is whether a free exercise claim was even stated.

[00:17:14] Speaker 01:
If there is one that's stated, then you have the opportunity

[00:17:18] Speaker 01:
argue that the interruption was justified under application of the Turner factors, which the district court never even reached.

[00:17:25] Speaker 01:
But we're asking here about just what is required to state a claim.

[00:17:30] Speaker 02:
Certainly, Honor, and I understand that.

[00:17:32] Speaker 02:
My point in bringing up the fact that he's incarcerated goes with the substantial burden analysis, which is his primary burden to show.

[00:17:40] Speaker 01:
How many case laws suggesting that that initial step is affected by the fact that he is a prisoner?

[00:17:47] Speaker 01:
Obviously, we apply Turner because he's a prisoner, but that's not the first step of the analysis.

[00:17:53] Speaker 02:
Well, there's a couple of things, Your Honor, if I may.

[00:17:55] Speaker 02:
First, I don't think that the Turner analysis necessarily applies because we're not dealing with the prison regulation or policy.

[00:18:01] Speaker 02:
What we're dealing with is one isolated incident that occurred.

[00:18:05] Speaker 02:
It was brief in time during one prayer session, and the bulk of the authority

[00:18:10] Speaker 04:
So what?

[00:18:12] Speaker 04:
I mean, his declaration is that this is against his religion, and I don't understand how you can argue with that.

[00:18:20] Speaker 04:
It's sort of like if somebody had forced him to eat a pork chop, it might have taken one minute, but it would be a substantial burden.

[00:18:29] Speaker 04:
So why isn't this a substantial burden?

[00:18:32] Speaker 02:
Yes, Your Honor, and I understand that.

[00:18:34] Speaker 02:
It is a substantial burden to Mr. Neely, and that's what he stated.

[00:18:37] Speaker 02:
The question is, is that

[00:18:41] Speaker 02:
allegation and a complaint enough for him to meet his burden to go to trial when there's evidence that it was an isolated brief occurrence in the context of a penal institution.

[00:18:53] Speaker 04:
Well, go back to my example.

[00:18:56] Speaker 04:
Would that be a substantial burden even if it were imposed upon an inmate and it only took two minutes or a minute if you forced someone to eat pork who was Muslim or Jewish?

[00:19:09] Speaker 02:
I think that that

[00:19:10] Speaker 02:
Probably would be, Your Honor, and I think that's enough.

[00:19:12] Speaker 04:
Okay, so why is this any different?

[00:19:15] Speaker 04:
Because, you know, we can't make a judgment that that isn't part of the requirements of Islam to have uninterrupted prayer.

[00:19:27] Speaker 04:
So why isn't it a substantial burden?

[00:19:31] Speaker 02:
I think it's a vastly different fact pattern that you proposed, Your Honor, and I think that the weight of the authority... Why do you think that, though?

[00:19:38] Speaker 04:
What is your evidence for that?

[00:19:40] Speaker 04:
What is your legal precedent for that?

[00:19:44] Speaker 04:
It seems to be that it's just sort of an ipsy dixit of this can't possibly be that important.

[00:19:51] Speaker 02:
I think the factual evidence is the fact that it was interrupted and he was able to complete the prayer.

[00:19:56] Speaker 02:
He admits that in his deposition.

[00:19:57] Speaker 04:
But that begs the question as to whether interruption itself is a violation of religious tenets.

[00:20:07] Speaker 04:
That's where I sort of, I guess, lose track of your argument and what the justification is for your argument.

[00:20:18] Speaker 02:
Yes, Your Honor.

[00:20:20] Speaker 02:
There's two things that I'd like to point to.

[00:20:22] Speaker 02:
First, the case law in the Ninth Circuit and other circuits, and I would recognize that there's probably a split in the circuits on this issue, is that a brief isolated interference is not enough to constitute substantial burden.

[00:20:35] Speaker 01:
Right.

[00:20:36] Speaker 01:
I mean, our case law is also very clear that we have to define the religious belief at issue at a high level of specificity.

[00:20:43] Speaker 01:
And when we follow that precedent, the religious belief at issue is an uninterrupted prayer.

[00:20:48] Speaker 01:
So I don't think we can have a categorical rule that a brief interruption is by definition insubstantial.

[00:20:54] Speaker 02:
I would disagree, Your Honor.

[00:20:58] Speaker 02:
I think that that goes to the sincerity of the belief, which is not disputed here.

[00:21:03] Speaker 02:
The other problem that I think is what standard is going to apply to all other cases going forward.

[00:21:07] Speaker 02:
There has to be some method for the court when the plaintiff bears the burden of proof to determine as a matter of law when there's not a factual dispute about whether the substantial burden has been satisfied.

[00:21:19] Speaker 02:
Clearly, there are going to be plaintiffs who are always going to show that there was a burden.

[00:21:23] Speaker 02:
And the question is, is a burden enough to implicate the First Amendment or must it be a substantial burden

[00:21:30] Speaker 02:
and the case law out of the Ninth Circuit and other circuits is clear that it has to be a substantial burden.

[00:21:35] Speaker 01:
Well, I've looked at that case law and it seems like we haven't squarely addressed that issue since we recognize the abrogation of the centrality test.

[00:21:43] Speaker 01:
Right, the centrality test is where we first started talking about substantial burden, but it was a substantial burden on a religious belief that is a central tenet of the religion.

[00:21:51] Speaker 01:
And then we've now recognized that that requirement of proving centrality was abrogated by the Supreme Court's president and Smith and other cases since then.

[00:22:01] Speaker 01:
And then we have now the Second Circuit saying,

[00:22:03] Speaker 01:
at the same time that the Supreme Court abrogated centrality, it also abrogated the substantial burden requirement, which, so there's, I mean, I think that, and we haven't, we've repeatedly just avoided the question since then.

[00:22:18] Speaker 02:
Well, the Supreme Court in Holt v. Hobbs did not do away with a substantial burden inquiry.

[00:22:23] Speaker 02:
It had an opportunity to do so, but it did not.

[00:22:27] Speaker 02:
It, in that opinion, it still recognized that substantial burden

[00:22:31] Speaker 04:
Was an element in the religious cases and I would also counsel I I don't I you know I guess I feel like this may be another case where That distinction doesn't matter because I'm still puzzled or uncertain about your argument about why this burden is not substantial when the only evidence in the record is that it is religiously Essential to have uninterrupted

[00:23:00] Speaker 04:
And we can't go behind that and say, well, gee, we don't really think that is a tenet of the religion, but there's no evidence that it isn't.

[00:23:15] Speaker 04:
And so, interruption by definition would appear to be a substantial burden.

[00:23:23] Speaker 02:
I would point the court to the wool sergeant case, which was, I believe, a Navajo inmate and either a hair policy or a shaving policy at issue.

[00:23:34] Speaker 02:
And there when it talked about the substantial burden analysis and the sincerity of the belief dealt with the fact that he was forced or coerced into violating his belief to comply with the policy.

[00:23:46] Speaker 02:
And while that case is not exactly on point because it dealt with the policy and this one does not deal with the policy,

[00:23:53] Speaker 02:
The issue that we have here is Mr. Neely is in an institutional setting.

[00:23:59] Speaker 02:
There was a decision made to terminate the prayer service.

[00:24:03] Speaker 04:
Per even Mr.... Well, it may have been justified, but I don't understand why it isn't a substantial burden.

[00:24:09] Speaker 04:
I mean, let's say there was a fire and they had to get everybody out.

[00:24:14] Speaker 04:
Of course, it would be justified even though it's a substantial burden, but I don't understand why it backtracks and makes the burden insubstantial.

[00:24:22] Speaker 02:
Because, Your Honor, I think in the fire context that you're talking about, if the fire were to break out during the prayer session and they had to end the prayer service to get the inmates out for people's safety, I don't think that that's the kind of conduct that the First Amendment implicates, much like under the Fourth Amendment or the Eighth Amendment context where it's not every push or shove.

[00:24:42] Speaker 04:
But, Counsel, that seems to me, I think this is a repetition of what Judge Sung was saying earlier, it sort of,

[00:24:49] Speaker 04:
conflates the two parts of the inquiry, is it a substantial burden?

[00:24:54] Speaker 04:
And if the answer is no, you win.

[00:24:56] Speaker 04:
If the answer is yes, you still can win if you can demonstrate that it was important or essential to impose that burden.

[00:25:07] Speaker 04:
But that seems to be the second step, and you're shoving it back into the first step.

[00:25:13] Speaker 02:
With respect to the substantial burden, if the standard's going to be, and I think it would be a departure from what the Ninth Circuit has done as well as other courts have done in different circuits, if the substantial burden element is met simply by alleging that whatever the act was, regardless of how brief or not is involved, constitutes a substantial burden, then there's no analysis.

[00:25:35] Speaker 01:
I don't think we're saying categorically that a brief interruption of any religious exercise is a substantial burden.

[00:25:43] Speaker 01:
The issue here is that the sincere religious belief is in uninterrupted prayer.

[00:25:49] Speaker 01:
Our case law is very clear that we define the religious belief issue at a high level of specificity.

[00:25:56] Speaker 01:
And then we don't question, as long as you've conceded the sincerity of the belief, we don't question it otherwise.

[00:26:02] Speaker 01:
We don't test for centrality anymore.

[00:26:05] Speaker 01:
We don't argue.

[00:26:06] Speaker 01:
We don't ask whether they can prove that it's been mandated by their religion.

[00:26:11] Speaker 01:
So once we accept that,

[00:26:13] Speaker 01:
then an interruption of a sincere belief that prayer must be uninterrupted is substantial.

[00:26:22] Speaker 01:
It is tied to the nature of the belief at issue.

[00:26:24] Speaker 01:
Not a categorical anyone who believes in prayer can't be interrupted, even briefly.

[00:26:31] Speaker 02:
I understand that, Your Honor, and I guess my response to that, I would again go back to we're talking about a violation of the First Amendment and what type of

[00:26:40] Speaker 02:
actions constitute or give rise to the level of a constitutional violation.

[00:26:46] Speaker 02:
And I don't mean this to be insulting to Mr. Neely or to his religious beliefs or to this court, but if the standard's going to be that the allegation is, as he has done, that there was a 30-second interruption on one occasion can implicate the First Amendment and give rise to that, I think that that creates potentially a problem for all the courts and opens the floodgates to litigation.

[00:27:09] Speaker 01:
Well, you still get the opportunity to defend the actions under the Turner test.

[00:27:16] Speaker 02:
Well, correct, Your Honor, except again, I don't know that the Turner test is actually appropriate.

[00:27:22] Speaker 01:
We've applied it to cases involving policies and

[00:27:25] Speaker 01:
discretionary acts, so I'm not sure that Turner ... I think it benefits you to say that we reached Turner no matter what.

[00:27:32] Speaker 01:
I think the Supreme Court has been clear that when a prisoner is alleging their claim is any violation of their constitutional right with a very narrow exception, then once they meet their burden of stating a claim, it shifts to the prison to show that the action was justified under the Turner factors.

[00:27:58] Speaker 02:
That's correct, Your Honor.

[00:27:59] Speaker 02:
I can't disagree with that statement of the law.

[00:28:02] Speaker 02:
I see I'm about to run out of time.

[00:28:04] Speaker 01:
Is there anything else you want to say in closing?

[00:28:07] Speaker 02:
In conclusion, I would just ask that this court uphold the decision of the district court and affirm the grant of summary judgment.

[00:28:13] Speaker 02:
Thank you.

[00:28:14] Speaker 01:
Thank you.

[00:28:22] Speaker 00:
Your honor, just two brief points.

[00:28:25] Speaker 00:
First of all, as we've established, there was a substantial burden here because Mr. Neely was put to a course of choice.

[00:28:31] Speaker 00:
But we would urge this court to clarify that Shakur, in overturning the centrality requirement, also overturned the substantial burden requirement.

[00:28:39] Speaker 00:
because the error that the district court made here has been made by other courts in the circuit.

[00:28:43] Speaker 00:
And you can see that when you look at the cases cited by the defendant.

[00:28:46] Speaker 00:
For instance, in another case, Howard versus Skolnick, the court concluded that not allowing a prisoner to fast for two days was not a substantial burden because two days was too short of a time to pose a substantial burden.

[00:29:00] Speaker 00:
And once again, the only way to conclude that is to say that fasting is a less important belief than other beliefs.

[00:29:04] Speaker 00:
So we think that the courts in the circuit would benefit from a clarification of the doctrine.

[00:29:08] Speaker 00:
Second, as to the suspension, Chaplain Willis is, you know, a reasonable jury could conclude that Chaplain Willis was involved in the imposition of the suspension.

[00:29:18] Speaker 00:
And the only way to hold otherwise is to interpret the consultation letter by drawing all inferences in their favor, which is not the standard summary judgment.

[00:29:27] Speaker 00:
But as the Deputy Warden Carr, my opponent does not oppose this court using its discretion to excuse any forfeiture here.

[00:29:37] Speaker 01:
Well, they didn't concede it either, but yes.

[00:29:39] Speaker 00:
But just to clarify, I think that it's important to understand that when it's an appeal of a screening order, usually the other party would not be served and would not even appear in the appellate court to oppose the reversal of the screening order.

[00:29:53] Speaker 00:
So the prejudice here is quite different from in most cases, because when a party is screened out, they're not a party also on appeal, and so there would be no prejudice to them.

[00:30:01] Speaker 00:
So it doesn't really matter whether you raise

[00:30:03] Speaker 00:
the argument in the opening brief or the reply brief.

[00:30:07] Speaker 00:
We'd urge this court to reverse.

[00:30:08] Speaker 00:
Thank you.

[00:30:10] Speaker 01:
Thank you.

[00:30:11] Speaker 01:
All right.

[00:30:12] Speaker 01:
This matter is submitted.

[00:30:13] Speaker 01:
I thank counsel for their very helpful arguments.

[00:30:15] Speaker 04:
And also appreciate pro bono counsel appearing.

[00:30:20] Speaker 04:
It's a great assistance to the court whenever we have pro bono lawyers willing to take on cases.

[00:30:28] Speaker 01:
I'd also like to just acknowledge the students in the audience from the University of California San Francisco Law School.

[00:30:34] Speaker 01:
Thank you.