morning may please the court assistant attorney general for the state of michigan john behalf of the defendants justice serafin and will taylor i would like to reserve three minutes for rebuttal you may proceed thank you this case requires a straightforward application of basic principles of qualified immunity in two thousand and thirteen and two thousand and fourteen it was unclear and i believe it's still unclear but it certainly then it was unclear that when a prison official caused a prisoner to miss a single religious service that i would would go back to say that that i have not and i don't believe the plane of cited to any cases i've not seen any cases from this circuit or from the supreme court or from the district courts that kind of rank the services that someone may i mean i  somebody not letting a christian go to easter services after line to everything i mean it's sort of obviously important as it is but i think it would be tough for this court to draw a distinction in terms of rankings are and you're right could it be could you make the argument that you're right you are a catholic and you missed easter services that are more important than just some sunday service in june we have to be very careful about making theological judgments hope the right one but on the other hand come on up yes isn't it but but what i would say is though again but that would require i think this quirk to make those sorts of theological judgments because some some people's religious adherence may mean that i mean i'm going to skip alien and for me going to church every sunday is important and i don't i guess my own personal belief system i wouldn't rank i get it that christmas is a family time and but but i don't read i don't think this court can say well this is more important so therefore missing this one is but this one is zero from a court decision but the you know the michigan department of corrections certainly made some distinctions and terms of its there's i don't if that this court is going to make that distinction i'd still say we're entitled qualified immunity because there's not been again i at least i found any case law that says that that the missing that i do muslim or missing easter for a christian or any other holiday of the same level of importance for any other religion would be would be that's a constitutional violation but if you miss say you were a muslim and someone missed friday prayer or if you are a catholic and you can go to a sunday service i'm not aware of any law what about this deal this is in the in the same case correct right and so in terms of judge cohn's danielle decision i'm familiar with that because that was my case  and i certainly understand that there's a valid argument you made either way but i think that distinction is important because at the end of the day while it may be a ministerial a function that's that's when it goes into a fact and so the consent judgment that went into effect it was now you're testing my member state i mean did the state kind of like stipulate to the entry of the order of the judgment i hate to misspeak in my own case but that was from twenty thirteen  objections to that i guess again if you look at pacer and i'm wrong i guess we can correct it all right i think the state approved the judgment as to form only yes and that's that's what you do in michigan and doesn't mean you stipulate to the entry of the judgement you're proving form and that shows me that the judgment itself is a ministerial act all it does is it it says and judgment form what the district judges already order in the in the order it makes the ordering judgment and i think the state could be sanctioned if they didn't agree to the form of the judgment i mean that's that's as ministerial as you get and i think things other than just allow muslims to attend a nation of islam members but all muslims to attend the i don't hate her but what the the petitioner the plaintiff wants in this case is  what downey l wanted there and you have a ruling by the district court in the eastern district the same district court although it's a different judge and isn't the law quite clear that the law is clearly established if the law is settled in the district court that you're in and i think there's a lot of cases that say for qualified immunity purposes if the law is  in the in for well you found by well the other judge isn't bound by it but for purposes of qualified immunity whether it's clearly established law in that district that's clear is not what you have a that there's a difference i mean usually called white immunity we're talking about there was whether there was a clear precedent i wonder in this case i mean were were was the state were these defendants actually directly or was it in a jump to a border that was entered i mean did they violate a court order as opposed to just you know they should have known from precedent i mean judge cohn ordered something did he did he order  the state to allow people in this position to celebrate this holiday with it so i mean what what's left what's left to the fischel to figure out you got a court order telling you personally you better do this but but what i would say is if it's reasonable fishelson follow corder work right right but but in this instance what i'm saying is though that that a single qualified immunity is defined more narrowly and at least in my opinion in this case is that you get to violate normal once you get a free violation well i mean i i don't know i maybe that's a little blunt more blunt than i would put it your honor but but but if if you if you do get with yes in if you wanted an absolute answer the answer is yes if you and the implications are serious well i mean this isn't just precedent this is you know you get to violate you get a free violation well i think surgical of all people judge  well but what i'm saying is is it define the right in this is where you get into the nitty gritty of qualified immunity and what's the question in this case the question is if someone misses a particular service it's it's been clearly established for i mean i don't help certainly i would assume since the sixt the sense that the broad right to attend a service has been established i agree with you i agree and that was established way before judge cones order so but with the position i'm taking is is despite the courts have said if someone misses a single service that that's not enough and this court said it in your published opinion in colvin granted that was are you arguing the merits of judge cohen's decision is that what you're doing you're saying it was wrongly his decision and wrongly decided i mean that's really not the issue here is it i did whether it was his decision whether wrong or not is clearly established in the eastern district of michigan but it's what the issue even with even if his this is even if you find that his decision clearly established that it doesn't answer the question of whether someone misses a single serve as that that goes to the merits of his of his decisions as it and that it's not really before us well i don't think so i guess i get it it doesn't it doesn't entitle you to qualified immunity that ok there's a clearly established law or decision here but guess what i don't have to follow it because it was wrongly decided that a defect no that's not a defense because that is that what you're arguing that the defense is is if someone if a prison officials actions cause someone to miss a single service and this is where i would say i mean again i certainly don't want to dismiss anyone's position but but it as they said broadly you don't even have to look at downey i understand that there was a broad see my time's up but a broad and since we're in the red zone can i just interrupt you for ok there seems to be a total mismatch in this case we're sitting here talking about clearly establish law and you know what was the official confused about the law i don't know how that official could be confused about the law with an order from judge cohen staring him in the face but be that as it may you know we're talking about you know is it is the law in clears a confusing meanwhile he the defendants made these decisions it appears not because of legal uncertainty at all it wasn't the you know he misunderstood the order somebody just screwed up about whether the nation of islam you know practices this particular  know observe the holiday and and so it's seems like there's a mistake of fact that's that they made rather than confusion about the laws so i mean why why are we talking about when to keep mistake  fact would give rise to qualified immunity or not as opposed to when confusion about the law which they're just bad here gives rise to qualified well again i guess i would go back to say there there is no confusion that people had a right to attend services but what the what's not was not clearly established and i didn't get this point before i'll say it real quick it's the plaintiff's burden to show that we're not into my clients are not entitled  and they've shown no there's not a single case that they cite looks like i'm dancing why are we talking about the law when your clients made mistakes of fact but it whets let's say let's say we disagree with you about the law let's say we determine for purposes of this case that the law was clear ok just hypothetically i know you disagree or i do yes ok and i know i know you disagree  if we make that decision is there a reason you would say well it was a reasonable mistake of fact and therefore we don't lose well i don't think they're not are you just not making that argument are you just not you know well i guess i think that there are so wrapped gathered you can't separate is a mistake a fact a mistake of law he that the argument is he missed a service whatever the source of that missing the service is it was it is missing one service doesn't it isn't enough to us show a constitutional violation that it essentially in the i would point out the plaintiffs have cited no case law and i have cited cases and some unpublished cases and i to that this was sort of just a screw up rather than confusion about the law but i mean you know it's not a federal law so i don't know what really matters you're right it's not federal law but there are two reasons that i think it's important number one  shows discrimination imus and mistress there i mean i mean it shows some kind of mistake i mean but it doesn't show anything invidious necessarily well there is evidence that the fact that mr serafin received the e mail that notified the entire and the staff that this was the new policy directive that e mail didn't even get confused by the answer i mean people make mistakes there are policies and sometimes people don't follow him it's not because of some nefarious thing i've seen nothing zip in your brief or anywhere else that shows this was you know he's something i mean it's just look like looks like a screw up and if i didn't happen again and again if a screw up that's fine but that's not really why we're here today with all due respect we're here to determine whether or not mr serafin and mr taylor are and how the qualified immunity so what we're asking is whether this rule subject that here even if the official subjectively screwed up we look at it whether objective reasonable official would have known this was clearly established law you can but i been decided on fact i think that they were they were biased of a fact and they knew that this practice was unconstitutional what they were doing and yes i neglected to bring the order worth  so my clerks fall for that what was the nature of that or was it injunctive saying the state shall do these things or was it saying you were committed violations in the past and therefore nation of islam in particular they were they were particularly poignant one of the class members was a nation of as they were enjoying the state of michigan to allow these particular groups to practice this particular holiday state of michigan yes the policy directive that was later amended in response to that were specifically said that edict that these inmates should be allowed to practice and eat and the michigan department of corrections and so that may be in the realm of something more than just a mistake i mean there you have a chaplain who is saying you can only have ten religious service if you change your take essentially th present but so i guess like my my my question is does that make any difference here that the claims it gets surfin or are different i mean he did it this was not necessarily mistake of fact in his case he said no you've got to change to go to the circus and when martin email defendant e mail mr serafin and told him that because there was an issue of mix call out between these two groups he normally didn't allow mention of islam and to observe the together so that's where that mistake comes in but there's that we have not cited any authority and he has cited cold then in support of the fact that misty in a single religious service constitutes a constitutional violation that's incorrect first of all let me distinguish colvin from the case that bar colvin was a situation where a jewish inmate was not receiving kosher meals and there was a argument that case for reasonable steak on behalf of the prison official who did not supply him with those kosher meals found that those single religious services constituted a count constituted a constitutional violation because of their significant importance they only come around once a year this is whitney versus brown asked to why should the court rank the importance of religious holidays or religious observances and that's not what we're asking this court to do all or asking the court to do today is determine whether or not these  any religious importance and ceremonies above one another we're just asking you to apply what's in the record and the whitney decision i mean it didn't really didn't say it right  religious observances but it did say that passover is an especially critical and very special time in the jewish religion and that was critical to its holding  where a native american prisoner was here's the the death penalty and he wanted to observe a religious ceremony before being executed and the state argued that they had a legitimate interest and the safety of the security to the security of the actual facility the court found that that was and sham reason and that not being able to observe that one significant district cannot clearly establish what the law is that i asked the question that judge cohen issued l l doesn't his decision in the same district eastern district of michigan clearly establish law and the response by the attorney general was though you do you have do you have authority to the contrary that decisions in the same district court may clearly establish the law yes what are they different because arguably they violated a court order but you have a case where our court has recognized a single district court opinion to be to have clearly established a wall in that aware of the guidelines implemented by agreement it k s r this is having to do with kosher meal the fact remains that no court had in authoritative precedent interpreted the first amendment as requiring strict compliance with the guidelines whether it cancer or elsewhere even though the froman agreement which was the previous case of that that there been i believe some sort of consent judgment and the from an agreement was in force by district court order it and this is the key part it never ripened into a presidential ruling on the merits of the free exercise claim the froman agreement simply did not become precedent defining the law defining the clearly established law so i guess i mean maybe we're at loggerheads on this issue but i would say that the short answer is judge cohn's opinion did not establish cl law but in the issue in this case is again i would bring it back to a more specific level that's what i want to keep coming back to is it's even if judge coleman's order did say there's this broad  point that this happened two years in a row you're right in that we're not talking about single violation right and obviously that doesn't mean he got out of prison right he did it he got this guy violated as much as he could have been violated but you're right and that certainly doesn't look so great that but but but what i would say is but it was different people doing different things and you have to look at these as individual instances i get it that that's not  so great but but if it if it was mr serafin doing it two years in a row i would say absolutely for the certainly for the second violation he he would not be in town or mr taylor had done it in twenty thirteen and did it again and twenty fourteen i agree with you that the second constitutional violation so with that i would ask that the court reverse the district court's ruling find that my clients are entitled to qualified immunity and remand this matter for judgment to be entered in their favor thank you ok thank you both to you for your argument this