reserve six minutes for my your honour's for eye witnesses provided sworn declarations that officer escambia physically attacked inmate daryl harris's koran throwing it to the ground stomping on it and kicking it under his bunk defiling it and making it unusable by a faithful muslim the heart of this case is the desecration of his qur'an because it offends the religious liberties protected by our constitution today i will focus on mr harris's free exercise claim and as time allows his equal protection claim this court should reverse summary judgment on mr harris is free exercise claim for two reasons first under the look kumi trinity lutheran line of cases mr harris was not required to show a substantial burden second even if he was required to do so he did the desecration of his qur'an was itself a substantial burden and interfered with his sincerely held religious belief that he must read from his qur'an daily in trinity lutheran the supreme court held that a government policy not a code if i'd statute or regulation denying a church the opportunity to compete with secular organizations for a playground resurfacing graham violated the free exercise clause in that case the court explained that even though the only burden would have been quote a few more scraped knees it was odious to our constitution all the same and cannot stand in brown explained that applying such a burden test would make petty harassment of religious exercise immune from the protections of the first amendment but what do we do with our canel decision your honor canal is distinguishable because that is a pure speech case rather than a physical attack on an inmate's most holy text so in that case i would say canal does not imply apply here but don't you think condell would be at least someone trying to interfere with someone's religious exercise yes your honor however in that case the correctional officer was proselytizing while the i me was attempting to engage in muslim prayer however here the so far are you arguing you're trying to factually distinguish it but as a rule of law you can also free exercise claim uses show a substantial burden are you saying that canel is irreconcilable with trying to do through your honor trinity lutheran it was decided in two thousand and seventeen it's a recent supreme court decision and to the extent that the cases are in controversy trinity lutheran would supersede canal however i think that they can be reconciled because trinity lutheran was talking about a government action as opposed to government speech and so i would distinguish on those grounds and you think of his government speech you have to show us of dental burden but not otherwise i think that government speech brings into questions the first amendment protection of free speech however in this case that is not at issue what is at issue here is the free exercise clause in where a government official targets the religious for mistreatment as a supreme court stated in trinity lutheran as well as in the  that is a violation of a free exercise clause even regardless of whether there's a substantial burden but even if the substantial burden was required it's seems to me if you look at trying to loop through all these cases you're talking about an articulated government policy and here you're talking about the actions of an individual is not a distinction with thinking about whether to apply a substantial burden to astronaut no your honor in trinity lutheran the case involves a government policy but it's important that it wasn't a codify regulation or statute right do you have any cases that on this point that don't involve a policy persecution principle of the first amendment is so well established and so well understood that few such cases arise in the courts this is one of those rare cases cases this is a case where a government official targeted mr and mr harris as a muslim inmate for mistreatment that is odious to our constitution and it cannot stand if we agree with you that there was a substantial burden on his exercise of his religion that we really don't need to get into this question of whether it was required to show a substantial burden right because he does anyway that's correct your honor and mr harris does a stablished that he was substantially burdened by officer asking me as conduct this single episode resulted in two distinct burdens the first burden is the desecration of his  kron was a substantial burden because as a faithful muslim mr harris takes great care to protect the sanctity and the holiness of his qur'an he kept it protected by a cloth cover which officer es he removed the crown from the cover threw it to the ground stomped on it and kicked it under his bunk the anguish of knowing that a correctional officer had targeted his qur'an for mistreatment was a substantial burden when mr harris discovered the qur'an with a boot print on it under his bunk he wept that is a substantial burden furthermore the after effects of the desecration was a further burden because of the desecration mr harris was not able to fulfill his sincerely held religious belief that he must read ten from his qur'an daily if he does not he will be counted among the neglectful and his qur'an will not act as his intercessor on judgment day and will again again instead speak against him that is also a substantial burden opposing counsel tries to argue that it is not a burden because mr harris was without his qur'an for a mere ten days however that ten days was a substantial burden and it is not for the government to decide what has been a substantial burden on his religion in verses ha ha by the supreme court explain that the proper analysis is whether the government has substantially burdened religious exercise not whether the claimant was able to engage in other forms of religious exercise and in ben levy versus brown justice alito dissenting from a denial of cert explained the argument that a plaintiff's own interpretation of his or her religion must yield to the government's and that is foreclosed by a precedent so in this case the fact that officer x s to me absolutely denied mr harris his ability to fulfill his daily obligation of reading his koran was a substantial burden your honor i see my time is up i would like to reserve my remaining time for  form the officers could be a cause a substantial burden on the players first amendment rights second if you move beyond that point we believe officers can be used in title to qualified immunity a point not respect the district court but a point upon which this court could affirm third with respect to the equal protection claim he did fail to exhaust and there was no question that his grievance was insufficient to put the person on notice either racially or rigid that rigid religiously motivated conduct exercise it must be a significant pressure to to do it to modify their beliefs or to coerce the individual into acting contrary to their belie that one way that you can have a free exercise highly somebody if someone is stopped from practicing their religion in a way that they think they need to do that's an end that's an infringement on free exercise isn't it i do not believe that states a free exercise federal government proposed to develop a section of road through some highly secret indian lands and the union tribes just as sincerely as mr harris in this case believed that if that road was built their ability to practice their religion would be highly impacted however the supreme court said that is not enough the substantial burden is not measured by the alleged effects of a government action on a religious object or spiritual development there has to be coercion and so in this case there is no coersion again in the case of lying the indians were alleging that they couldn't practice their sacred ceremonies in the national environment if the road went through but the court said that is not enough there has to be specific government oppression i mean the first amendment fundamentally it says congress shall make no law prohibiting the free exercise of it are you saying that the prison could prevent him from ever having a qur'an and ever going to muslim services because that would just be prohibiting him and not coursing him that is not this case that would be a debate is that what you're that's the position you're arguing it sounds like you're that if the prison prevented muslim inmates from ever going to services ever having a cron ever having any ability to practice their religion in any fashion that would be a direct prohibition and that would most likely state a free exercise claim that is not this case in which the claim dictated by the amount of time that you prohibit someone from doing here because you're saying that because there was only a ten day prohibition that that's not a claim but if it was a permanent prohibition that would be a claim i'm saying if you look at the cases where the prison cases where this is where the courts this court and the supreme court have indicated there is a substantial burden there is some sort of official prohibition against the me to be an establishment clause argument well i mean i think you're writing exercise out of the free exercise class i don't think i am and i  is i think some overlap and i'm certainly not prepared to argue in depth establishment clause precedents today or however the focus of what i'm trying to get to is that there has to be a substantial burden imposed there has to be something beyond a the lack of a better word incidental effect of the government action regardless of how sincerely the person in question or the religious objector believes that government action is impacting their right there has to be something the government affirmatively did that actually burdened their religion in any substantial manner and put pressure on them to abandon their beliefs in this case none of well it's the last part so put pressure on them to abandon their beliefs that can't possibly be right i mean you already said that if they just were prohibited from having a qur'an and going to services that would be a violation there's nothing in that description that would prohibit them from having their beliefs or forcing them have different says that that's not true so i mean maybe there's a fact dispute but he says i couldn't practice my religion in these ten days that's that's not that's not true there is no fact dispute as to what he had available to him to practice his religion it's undisputed he had several other texts which contain hundreds of verses of the koran but don't we have cases that say that it's not the courts or the governments choice to decide how someone's religious practice happens i mean he says he needs a koran he says he needs a crown this correct your honor however the case is in this circuit and in fact as in our state supreme court in the alone case specifically say that where there are other means available no  one says that when the prison has legitimate pain a logical interest it can override religious interest in some context but what's the legitimate opinion a logical interest in destroying his karate i disagree on alone because there there is no question in the law that if you have other means of religious practice available to you then the removal of one specific means is not a violation the free exercise clause if an inmate yes for a specific version of the koran like in the tenth circuit case we said in our brief and the person says no you can't have that one but you can have this one there's no free exercise clause he had multiple other texts that contain verses of the koran from which he could have read it he was an inmate the obligation which which he says you must recite those verses every day so he could have used those other texts to recite those verses but there you are disputing what really is his muslim faith by saying he is lying i guess when he says he needs an actual koran i'm not saying mr here is a longing i am saying that he had other means from which you could practice his religion and therefore there was no substantial burden imposed upon his religious and how do you know that that's a fine way to practice his religion i'm not questioning whether he believes he needs to do that or not what i'm saying is he had other means from which he could practice his religion available to him and why not what ought what truth tells us that that really is another means what are we going to look at to figure out if you're right you're on our it's we're not we're not going to go into the truth or the non truth of what his what his beliefs were what's your basis for saying this is another way to practice his religion like what are you citing for that what are you lying on to think that i'm relying on alone i'm relying on the other cases in this circuit which specifically say if you do not have a substantial burden on religious practice in prison you can't have a free exercise violation in the canal case is particularly on point and act case we don't now just ten days we had twenty three days of interference with the muslim inmates prayers and i'm sure in any case he sincerely believed he had to pray on a daily basis and the interference with those prayers would be pleading of a burden the sincerity of the belief was all that was necessary to link case will come out differently but the court said no there was no first amendment violation there because regardless of the  the the indian tribes believed in the sacred and so that of their land through which this road was going to run the court said there was no direct in preventing them from you know causing them to change their beliefs or impacting their beliefs he said there was a factual question on that he didn't know the magistrate judge said there was a factual question with respect to whether or not there was a blueprint placed on the qur'an and there was a there is a relies on johnson statement to prove that islamic law does not require the plaintiff to re read the qur'an every day plan of disagrees the court cannot resolve that religious dispute and it need not do so here as well settled that the sincerity of the inmates belief rather than a centrally to his faith so matter that's relevant to the free exercise inquiry so i guess my question is you've made the argument today about coercion but i don't see anything in the district court however if you look at the district judge's order adopting a plan even recommendations that did get to the point over substantial burden on page six of the excerpts the district court did state district court was focusing specifically on proximate cause and causation basically saying that it most you can attribute a one day delay in getting a koran  there not be what we're talking about the ten day period and i just want to make sure we're talking about the same thing the district court was talking about whether it was foreseeable that the  would would result in a ten day deprivation but i'm less i'm wrong the district court and neither the district court of the magistrate judge held that the deprivation for a ten day period was not a substantial the district or did not reach that point the district court because it said it said it could it couldn't attribute more than a one day delay to officers can use alleged conduct because he had not put in sufficient evidence approximate causation in fact it's undisputed that plaintiff went to  basis upon which this court could find if it gets be on the proximate cause ation issue and we're still finding on that in the magistrate judge has that he didn't reach that point i don't know that that there they had alternate means consider as an alternative grounds should it wish to consider that question in other words if you disagree with the manager judge's findings which we believe are correct that there was no evidence of proximate causation for the ten da you can consider other points such as whether or not he tended to as a substantial burden based on this record you can also consider the question of qualified immunity which we believe it has been well addressed in our briefing but again my name is francine cupp look i'm a certified lost didn't representative i would like to address two key points on the bottle first i would like to address mr harris has access to religious texts and second i would like to address qualified immunity this case involves a direct violation of the first amendment and look who me the supreme court said that the fundamental non persecution principle of the first amendment is so well understood in the law that such cases rarely arise and this is one of those cases the third held in brown that a government action not a policy violated the first amendment in that case a community organization a government organization made the spiteful decision to lock  gate for access to a revival meetings base and the court held that the government had no legitimate purpose and no legitimate purpose was served by the intentional deprivation of the rights to to religion so i'm quite an answer to your  question on or in regards to whether look who me has been applied in cases where there wasn't a specific law or regulation of there was a policy decision there wasn't but it was a tool government action and end of it it was not a it was a specific government action it was not a  it was not a specific policy decided to written down additionally in regards to access to text there is no substitute for the koran officer mr  required i'm sorry i apologize mr harris is required to read the koran daily as as part of his muslim belief in the third circuit in sutton the court found that the complete denial of text is a violation of the first time and went additionally the good in the decision and garner in the seventh circuit the court held that deny access to a holy text or ritual items is a substantial burden on free exercise furthermore the court held that case law clearly prohibits pr officials from intentionally preventing religious practice without pain a logical justification of the first exercise and therefore the claim may proceed in regards to qualified immunity for good qualified immunity ye the district court concluded that there was no evidence supplied by the plaintive that the actions of the officer rees were reasonably the officer could not reasonably foresee that it would result in the as conduct in this case and because of that officer ischemia is responsible for the actions that that occurred after the koran was desecrated there is no legitimate pino logical interest here and so principles though or something else that shows he is responsible for any thing that followed whether it was forseeable or not correct and in terms of tort principles that if the action is deliberate then the liability for the actions that fall from that there there is a heightened duty to those responsibilities and supposed to a negligence claim in which the it might not be as foreseeable when it is a deliberate targeted action which was the case here when the koran was thrown onto the floor kick and kicked under the bed he is responsible for those actions and for the best case for that in the three exercise context i believe your honor we would refer back to those cases that completely deprive sutton and garner that i was previously talks about the what the complete which occurred here the complete deprivation of of that sacred text to be the prison officials were held liable for any actions that ended up happening in regards to those prisoners being completely unable to access their text which the equivalent happened in this case the moment that the crown was desecrated by  deprivation of the current after it was desecrated so i'm talking about the deprivation period because you know ten days is a long time but the but the district court again let me just quote it the plaintiff came forward no evidence on summary judgment suggesting that the ten days he was a deliberate action and there are other cases that are cited in both sides briefs in regards to the not access to the qur'an for a few days because it had been left in a move or something similar to that here we have a targeted action by a correctional officer that created the substantial burden rather than in those other cases there were often legitimate pina logical interests involved in like moving a prisoner from cell to cell efficiently or things like this here the officer asked me a departed from that legitimate pino logical interest and targeted mr her sister on if i see that my time is almost up and i would like to briefly address qualified immunity actions by the government that target the religious are odious to the constitution and no reasonable correctional officer could think that degrading the koran was lawful and rosily rumsfeld the d c circuit held that the plaintiffs who allege that the koran had been thrown in the toilet as well as other acts against the koran the court held that such activit if true constitute a direct affront to this nation's most cherished constitutional traditions and for these reasons your honor we ask that you deny qualified immunity to officer additionally officer qualified