United States Court of Appeals

For the First Circuit

No. 14-2030

ALVIN MARRERO-MÉNDEZ; CYNTHIA PÉREZ-VALENTÍN; CONJUGAL 

PARTNERSHIP MARRERO-PÉREZ,

Plaintiffs, Appellees,

v.

GUILLERMO CALIXTO-RODRÍGUEZ, former Carolina Area Commander for 

the Puerto Rico Police Department; MARIO RIVERA, Chief of the 

Carolina Precinct of the Puerto Rico Police Department; RICARDO 

CRUZ-DOMÍNGUEZ, Supervisor of the Puerto Rico Police Department,

Defendants, Appellants,

HÉCTOR PASQUERA, Superintendent of the Puerto Rico Police 

Department; WILLIAM OROZCO, Carolina Area Commander of the 

Puerto Rico Police Department,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge] 

Before

Torruella, Lipez, and Thompson,

Circuit Judges.

Margarita Mercado-Echegaray, Solicitor General of the 

Commonwealth of Puerto Rico, with whom Andrés González-Berdecía, 

Assistant Solicitor General, was on brief, for appellants.

Heather L. Weaver, with whom Daniel Mach, the American Civil 

Liberties Union Foundation, Josué Gonzalez-Ortiz, William Ramirez, 

and the ACLU of Puerto Rico were on brief, for appellees.
July 19, 2016
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LIPEZ, Circuit Judge. Plaintiff Alvin Marrero-Méndez 

("Marrero"), an officer in the Puerto Rico Police Department 

("PRPD"), filed a § 1983 action, claiming that his superior 

officers ("appellants") violated the Establishment Clause by 

holding a group prayer while on duty and punishing Marrero for his 

non-conformance. Appellants moved to dismiss the complaint, 

claiming a failure to allege plausibly a constitutional violation 

and invoking qualified immunity. The district court denied their 

motion. In this interlocutory appeal challenging only the denial 

of qualified immunity, we affirm the district court's decision.

I.

The denial of qualified immunity on a motion to dismiss 

is immediately appealable. See Mitchell v. Forsyth, 472 U.S. 511, 

530 (1985); Penn v. Escorsio, 764 F.3d 102, 105 (1st Cir. 2014). 

Hence, we review the district court's rejection of qualified 

immunity, accepting, as we must, all well-pleaded facts in the 

light most favorable to Marrero. See Ocasio-Hernández v. FortuñoBurset, 640 F.3d 1, 17 (1st Cir. 2011); Maldonado v. Fonatanes, 

568 F.3d 263, 266 (1st Cir. 2009). 

Marrero has been a police officer in the PRPD since 1999. 

Prior to the alleged incident, Marrero's responsibilities 

consisted of law enforcement tasks, such as patrolling, conducting 

arrests, and undertaking other crime-prevention activities. 
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On March 9, 2012, Officer Guillermo Calixto-Rodríguez 

("Calixto"), a regional commander of the PRPD, summoned forty PRPD 

officers for a meeting in the parking lot of a shopping mall to 

discuss a plan for an intervention to take place nearby. Marrero

was among those in attendance, as were two of his superiors,

Officers Mario Rivera ("Rivera") and Ricardo Cruz-Domínguez 

("Cruz"). All of the officers stood in military formation. Toward

the end of the meeting, Calixto asked for a volunteer to lead the 

group in a prayer. These meetings, which occurred every other 

month or so, typically included a Christian invocation or closing 

prayer. 

On this occasion, Marrero -- who is an "open 

atheist" -- called Calixto aside and told him that "he object[ed] 

to such official prayers because they promote[d] religious beliefs 

to which he [did] not subscribe." He added that "he felt very 

uncomfortable taking part in the prayer and that he did not want 

to participate." Marrero also informed Calixto that the prayer 

violated PRPD regulations, which provided that "[a] strict 

separation shall be maintained between the church and state." 

Calixto became "upset" and ordered Marrero to "abandon 

the formation." As Marrero was walking away from the group, 

Calixto shouted that Marrero should stop and stand still until the 

prayer was finished. Calixto also shouted, in front of the entire 

formation, that Marrero was standing apart from the group because 
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"he doesn't believe in what we believe in." Marrero felt 

humiliated. Obeying Calixto's order, Marrero stood, with his back 

to the formation, until the prayer ended. 

After the meeting, Marrero worked with Cruz, his 

immediate supervisor, for the rest of the night. Marrero told 

Cruz that he was upset about the incident with Calixto, and that, 

as a result, he preferred to be assigned to his usual duties at 

the airport, away from the area in which the intervention meeting 

took place. Marrero also began to cry because of the humiliation 

he had experienced. While on their way to the airport, Marrero 

told Cruz that he intended to file an administrative complaint 

about the incident. When they arrived at the airport, Cruz 

instructed Marrero to hand over his weapon because he was in an 

emotional state, and to report to Rivera the following Monday to 

receive further orders about a transfer. 

The following Monday, March 12, 2012, Marrero filed an 

administrative complaint at the PRPD.1 Two days later, he also 

met with Rivera, as instructed by Cruz. Rivera presented Marrero 

with two transfer options: report to the Command Office for 

clerical tasks or stay in the airport station to perform vehiclemaintenance tasks. Both options were effectively demotions from 

Marrero's usual responsibilities. Marrero chose the latter and 

 

1 It is not clear from the record how the administrative 

complaint was resolved. 
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has since carried out vehicle-related and other such tasks, not 

the law enforcement activities for which he was trained. 

On March 8, 2013, Marrero filed this action, claiming 

that appellants violated the Establishment Clause by "expos[ing] 

[him] to unwanted religious exercise and messages by [PRPD] 

officials."2 He also alleged that appellants' conduct "endorse[d]"

religion and "entangle[d]" the PRPD with religion. Additionally, 

Marrero claimed that appellants retaliated against him for 

refusing to participate in, and speaking out in opposition to, the 

prayer and for filing an administrative complaint regarding the 

prayer practices.3 Appellants moved to dismiss the complaint, 

claiming a failure to allege plausibly a constitutional violation, 

see Fed. R. Civ. P. 12(b)(6), and invoking qualified immunity. 

The district court denied their motion on both grounds. 

As to the Rule 12(b)(6) defense, the court found that Marrero had 

adequately alleged an Establishment Clause violation because the 

 

2 In addition to Calixto, Cruz, and Rivera, Marrero named 

Héctor Pesquera, PRPD Superintendent, and William Orozco, a 

regional commander of the PRPD, as defendants in the suit based on 

supervisory liability. The district court dismissed the claim 

against Pesquera and Orozco, however, finding that Marrero failed 

to allege sufficient facts to establish supervisory liability. 

Marrero has not appealed that ruling, and Pasquera and Orozco are 

not appellants in this case.

3 Although the allegations state that Marrero was subject to 

a hostile work environment based on his religious beliefs, the 

complaint does not assert an employment discrimination claim under

Title VII, see 42 U.S.C. § 2000e et seq., instead framing these 

allegations as an Establishment Clause violation. 
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prayer in question took place during an official police meeting, 

and the allegations plausibly showed that Calixto "forced 

[Marrero] to observe the prayer[] against his will and his own 

religious beliefs." Based on these allegations, the court also

found that Marrero was punished for his refusal to participate in 

the prayer by being deprived of his regular duties as a PRPD 

officer. Such treatment, concluded the court, reinforced the 

coercive nature of appellants' conduct. 

The district court then rejected appellants' claim of 

qualified immunity. Following the well-established two-step 

inquiry for qualified immunity, the court noted that its conclusion 

on appellants' Rule 12(b)(6) defense -- that Marrero plausibly 

alleged an Establishment Clause violation -- satisfies the first 

prong of the inquiry on whether there are sufficient facts to 

establish a constitutional violation. See Pearson v. Callahan, 

555 U.S. 223, 232 (2009). The court then analyzed whether the 

right asserted by Marrero was "clearly established" at the time of 

the alleged incident. Id. Surveying the state of the law based 

on Supreme Court, circuit, and district court precedents as of 

March 2012, the district court concluded that appellants violated 

a clearly established right because a reasonable officer at that 

time would have understood that "ordering a subordinate to observe 

a religious prayer given during an official meeting -- without 

giving the subordinate the ability to opt out -- would violate the 
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Constitution." Appellants filed this interlocutory appeal to 

challenge the denial of qualified immunity.

II.

Appellants claim that the district court erred in 

rejecting their qualified immunity defense because there was no 

clearly established law placing them on notice that their conduct 

was unconstitutional. Specifically, they argue that the law at 

the time of the alleged conduct did not clearly establish that 

"[appellants'] actions constituted . . . [s]tate-sponsored 

official prayers and not merely tolerable religious expression." 

Appellants claim, moreover, that, even if a reasonable officer 

should have known that the prayer was state-sponsored, they are 

still entitled to qualified immunity because the contours of 

Marrero's right to be free from religious coercion were not clearly 

defined at the time of appellants' conduct. In particular, they 

assert that a reasonable officer would not have known that

Calixto's order to Marrero to "abandon the formation" -- which 

they characterize as an opt-out opportunity -- was insufficient to 

pass constitutional muster in light of the divergent tests 

developed in the Supreme Court's Establishment Clause cases. 

We review a district court's denial of qualified 

immunity de novo. See Rivera-Ramos v. Roman, 156 F.3d 276, 279 

(1st Cir. 1998). Hence, "taking the law as it stood at the time 

of the conduct in question," we address as a question of law
- 9 -

whether "a set of assumed facts constitutes a violation of 'clearly 

established law.'" Id. (quoting Harlow v. Fitzgerald, 457 U.S. 

800, 815 (1982)). 

A. Qualified Immunity Standards

Qualified immunity protects government officials from 

trial and monetary liability unless the pleaded facts establish 

"(1) that the official violated a statutory or constitutional 

right, and (2) that the right was 'clearly established' at the 

time of the challenged conduct." Ashcroft v. al-Kidd, 563 U.S. 

731, 735 (2011) (quoting Harlow, 457 U.S. at 818); see Glik v. 

Cunniffe, 655 F.3d 78, 81 (1st Cir. 2011). If either of the two 

prongs is not met -- i.e., if the facts do not show a constitutional 

violation or the right in question was not clearly established --

the officer is immune. Either prong may be addressed first, 

depending on "the circumstances in the particular case at hand." 

Pearson, 555 U.S. at 236. 

Here, appellants argue that it is unnecessary to address 

the first prong inquiry because their primary argument is that the 

second prong has not been satisfied. We can decide based solely 

on the second prong, however, only if we concluded that appellants 

are entitled to qualified immunity on that basis. That is not the 

conclusion we reach.
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B. Constitutional Violation

The First Amendment of the United States Constitution 

proscribes Congress from making laws "respecting an establishment 

of religion." U.S. Const. amend. I; see Cantwell v. Connecticut, 

310 U.S. 296, 303 (1940) (holding that the religion clauses of the 

First Amendment apply equally to the states). As conceived, the 

organizing principle of the Establishment Clause is "governmental 

neutrality" -- between "religion and nonreligion," as well as among 

religions. McCreary Cty., Ky. v. Am. Civil Liberties Union of 

Ky., 545 U.S. 844, 860 (2005) (quoting Epperson v. Arkansas, 393 

U.S. 97, 104 (1968)); see Wallace v. Jaffree, 472 U.S. 38, 52 

(1985) (noting that the Establishment Clause guarantees religious 

liberty and equality to "the infidel, the atheist, or the adherent 

of a non-Christian faith such as Islam or Judaism"). Hence, the 

Supreme Court has held that, wherever the boundaries of the 

Establishment Clause protection may lie, "[i]t is beyond dispute 

that, at a minimum, . . . government may not coerce anyone to 

support or participate in religion or its exercise." Lee v. 

Weisman, 505 U.S. 577, 587 (1992). 

Appellants' conduct violated precisely such a principle. 

As a threshold matter, the prayer in question was unmistakably a 

state action. Appellants are PRPD officers who either initiated 

or participated in the prayer during an official intervention 

meeting. Moreover, regardless of how one may interpret the 
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constitutionality of the prayer in and of itself,4 the subsequent 

events make clear that appellants' actions (collectively) 

constituted direct and tangible coercion. Immediately after 

directing Marrero to "abandon the formation," Calixto ordered 

Marrero, as he was walking away from the group, to stop and stand 

still for the duration of the prayer. Calixto then shouted, in 

front of the entire formation, that Marrero was standing apart 

from the group because "he doesn't believe in what we believe in." 

After complaining about the incident and filing an administrative 

complaint, Marrero was transferred to a post where he was deprived 

of his usual law enforcement responsibilities.

If these actions do not establish religious coercion, we 

would be hard-pressed to find what would. Among the "essential 

precepts" of the Establishment Clause are that "[n]either a state 

nor the Federal Government can . . . force [a person] to profess 

a belief or disbelief in any religion," and that "[n]o person can 

be punished for entertaining or professing religious beliefs or 

disbeliefs." Cty. of Allegheny v. Am. Civil Liberties Union 

 

4 We do not address here the constitutionality of a prayer at 

an official police meeting in the abstract, apart from the specific 

events that occurred with respect to Marrero and the group prayer

at the intervention meeting. For instance, as we note infra, we 

do not view Calixto's order to Marrero to "abandon the formation" 

as an opt-out opportunity and hence do not examine whether the 

prayer would still be unconstitutional, even with an opt-out 

procedure, due to the coercive pressures at play in the

hierarchical dynamics of police work.
- 12 -

Greater Pittsburgh Chapter, 492 U.S. 573, 591 (1989) (quoting 

Everson v. Bd. of Educ. of Ewing, 330 U.S. 1, 15-16 (1947)); see

Lee, 505 U.S. at 596 ("It is a tenet of the First Amendment that 

the State cannot require one of its citizens to forfeit his or her 

rights and benefits as the price of resisting conformance to statesponsored religious practice."). "[R]esolv[ing] any ambiguities 

in [Marrero's] favor," Ocasio-Hernández, 640 F.3d at 17, we, like 

the district court, deem Calixto's order to Marrero to stand still 

in close proximity to the group until the prayer is concluded as 

forcing him to observe a religious practice against his will. 

Similarly, Calixto's comment differentiating and humiliating

Marrero based on his religious beliefs, as well as Marrero's 

demotions following the incident, allege a clear case of punishment 

on religious grounds. Indeed, while appellants attempt to deflect 

the relevance of Marrero's reassignment by suggesting that he 

requested to work at the airport, his allegations make clear that

it was the type of responsibilities he was given at the airport, 

and the fact that his weapon was taken away, that constituted 

demotions, not the mere fact of his transfer. 

Hence, we conclude that the first prong of the qualified 

immunity inquiry is met: appellants violated the Establishment 

Clause by (i) forcing Marrero to observe a religious practice 

against his will and (ii) punishing him for his non-conformance.
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C. Clearly Established Law

Appellants would still be entitled to qualified immunity 

if the right they violated was not "clearly established" at the 

time of their conduct. A right is "clearly established" when 

"[t]he contours of the right [are] sufficiently clear that a 

reasonable official would understand that what he is doing violates 

that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). 

Hence, while the precise violative action at issue need not have 

previously been held unlawful, id., the existing precedent from in 

and out of circuit "must have placed the statutory or 

constitutional question beyond debate," al-Kidd, 563 U.S. at 741; 

see Barton v. Clancy, 632 F.3d 9, 22 (1st Cir 2011). 

How specifically the right, or correspondingly, the 

violative conduct, must be identified has been the subject of much 

dispute. The Supreme Court has "repeatedly told courts . . . not 

to define clearly established law at a high level of generality." 

al-Kidd, 563 U.S. at 742. The dispositive question is "whether

the violative nature of particular conduct is clearly 

established." Id. (emphasis added); Anderson, 483 U.S. at 640 

(noting that the violative action must be understood in a 

"particularized, and hence . . . relevant, sense"). The inquiry 

"must be undertaken in light of the specific context of the case, 

not as a broad general proposition." Mullenix v. Luna, 136 S. Ct. 
- 14 -

305, 308 (2015) (per curiam) (quoting Brosseau v. Haugen, 543 U.S. 

194, 198 (2004) (per curiam)).

Here, appellants argue that there was no clearly 

established law as of March 2012 that placed them on notice that 

the prayer was "state-sponsored" and that their conduct was 

coercive. We can easily dispose of the "state-sponsored" prayer 

argument. Calixto initiated -- and Rivera and Cruz participated 

in -- the prayer with a group of police officers during an official 

intervention meeting. Appellants have not cited, nor have we 

identified, any case that would deem such a prayer as a voluntary 

and spontaneous exercise by private individuals. Even in cases 

where the persons initiating or engaging in prayer are not state 

officials, the Supreme Court has inferred state sponsorship of the 

prayer where indirect state involvement suggests an imprimatur on 

the religious practice. See Sante Fe Indep. Sch. Dist. v. Doe, 

530 U.S. 290, 309-312 (2000) (determining that student-led prayers 

before varsity football games are state-sponsored prayers based 

on, inter alia, "the importance to many students of attending and 

participating in extracurricular activities as part of a complete 

educational experience"); Lee, 505 U.S. at 580, 587-89 

(understanding the invocations and benediction prayers at a school 

graduation ceremony as state-sponsored prayers, even though the 

prayers were offered by clergy members, rather than school 

officials). Where, as here, a religious practice is conducted by 
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a state official at a state function, state sponsorship is so 

conspicuously present that only "the plainly incompetent or those 

who knowingly violate the law," Malley v. Briggs, 475 U.S. 335, 

341 (1986), would deny it. See, e.g., Marsh v. Chambers, 463 U.S. 

783, 784-86 (1983) (describing a legislative prayer offered by a 

state-employed chaplain without reference to whether the prayer is 

sponsored by state).

Appellants' second argument regarding coercion warrants 

a closer look. The district court found that a reasonable officer 

in March 2012 would have known that "ordering a subordinate to 

observe a religious prayer . . . without giving the subordinate 

the ability to opt out . . . would violate the Constitution." This 

formulation of the inquiry, however, is not sufficiently specific. 

An affirmative answer to this inquiry, though accurate, would state

an abstract principle of law, disassociated from the facts of the 

case. See al-Kidd, 563 U.S. at 742. Hence, in accordance with 

the Supreme Court's guidance, we frame the "clearly established" 

inquiry as follows: appellants are entitled to qualified immunity 

if a reasonable officer in March 2012 would not have known that 

appellants' conduct was coercive in the situation they 

encountered. See Brosseau, 543 U.S. at 199. The relevant 

situation, and appellants' actions, consisted of the following: 

(1) after directing Marrero to abandon the formation, Calixto

ordered Marrero, as he was walking away, to stop and stand still 
- 16 -

until the prayer was finished; (2) as Marrero stood in the vicinity 

of the group, Calixto shouted that Marrero was standing separately 

from the group because he does not subscribe to the same faith as 

the rest of the group; (3) after Marrero complained about the 

incident, he was stripped of his law enforcement responsibilities

and demoted to lesser tasks.5

With that clarification, we examine whether the law as 

of March 2012 put reasonable officers on notice that appellants' 

conduct -- ordering a subordinate, against his will, to stand 

 

5 Appellants attempt to incorporate their version of the facts 

into the "clearly established" prong analysis. Indeed, they argue 

that a reasonable officer would not have known that their conduct 

was coercive because the officer could have understood Calixto's 

order to "abandon the formation" as an opt-out opportunity for 

Marrero. Similarly, appellants claim that a reasonable officer 

could have understood Calixto's comment differentiating Marrero 

from the group as "nothing more than a true explanation for 

Plaintiff's legitimate right not to participate in their 

gathering." 

In the procedural posture of this case, however, we construe 

the factual allegations in the light most favorable to Marrero. 

See Ocasio-Hernández, 640 F.3d at 17. And, viewing the facts in 

this light, we conclude, as we did in the first prong analysis, 

that Calixto's orders "to abandon the formation" and then "stop 

and stand still" -- given in rapid succession -- forced Marrero to 

observe a prayer. Likewise, we do not read Calixto's comment as 

a legitimate explanation for why Marrero was standing apart from 

the group. The comment was given, unprompted and during an 

official meeting, by a regional commander of the PRPD who had 

become "upset" upon hearing Marrero's objection to a group of 

subordinate officers standing in military formation. Cf. Mellen

v. Bunting, 327 F.3d 355, 371 (4th Cir. 2003) (observing that 

cadets at the Virginia Military Institute were "uniquely 

susceptible to coercion" due to the cultural emphasis on "obedience 

and conformity"). 
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nearby while his colleagues engage in a prayer and then humiliating 

and punishing him for non-conformance -- constitutes religious 

coercion. We conclude that it did. Indeed, the coerciveness of 

appellants' conduct is so patently evident that no particular case 

-- and certainly not one "directly on point," al-Kidd, 563 U.S. at 

741 -- need have existed to put a reasonable officer on notice of 

its unconstitutionality. Nonetheless, existing precedent supports

this inescapable conclusion.

In Anderson v. Laird, 466 F.2d 283, 284, 291 (D.C. Cir. 

1972) (per curiam), the D.C. Circuit addressed a federal regulation 

that required cadets and midshipmen at military academies to attend 

religious services on Sundays unless they objected based on 

conscientious beliefs. The court struck down the regulation as 

unduly coercive, despite the opt-out opportunity, because the 

"government may not require an individual to engage in religious 

practices or be present in religious exercise." Id. at 291 

(Bazelon, J., concurring). Similarly, in Mellen, 327 F.3d at 371-

72, the Fourth Circuit held that a mandatory supper prayer at a 

military academy violated the Establishment Clause, even though 

the cadets could abstain from the prayer by avoiding the mess hall 

where the supper prayer takes place. Hence, as of March 2012, 

these cases stood for the proposition that requiring mature 

individuals to participate in a group prayer in a setting with a 
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strict hierarchy amounts to religious coercion, even when an optout opportunity is provided to objecting persons.6 

Courts have also found coercion where the government 

required conformance to a religious belief as a condition for a 

benefit, such as parole eligibility for prisoners or job security 

for government employees. Indeed, before March 2012, numerous 

courts had held that requiring prisoners to attend a program that 

has a religious component as a condition for parole eligibility is 

unconstitutional. See, e.g., Inouye v. Kemna, 504 F.3d 705, 713 

(9th Cir. 2007) (holding that a mandatory drug treatment program 

for prisoners is "clearly coercive" where the program is rooted in 

religious faith); Warner v. Orange Cty. Dep't of Prob., 115 F.3d 

1068, 1074-75 (2d Cir. 1997) (same); Kerr v. Farrey, 95 F.3d 472,

479-80 (7th Cir. 1996) (same). 

Courts have likewise applied the same principle to 

government employment cases. In Venters v. City of Delphi, 123 

F.3d 956, 970 (7th Cir. 1997), an employee of the city police 

department sued the police chief, alleging that he violated the 

Establishment Clause by "pressur[ing] her to bring her thinking 

and her conduct into conformity with the principles of his own 

 

6 We reiterate that, while Anderson, 466 F.2d at 291, and 

Mellen, 327 F.3d at 371-72, could be read as suggesting that the

prayer at issue in this case would be unconstitutional even with 

an opt-out opportunity, we do not decide that question on this 

record. As we noted in footnote 4, the facts indicate that such 

an opt-out opportunity was not provided to Marrero.
- 19 -

religious beliefs, and admonish[ing] her in no uncertain terms 

that she was at risk of losing her job if she was unwilling to do 

so." Based on these allegations, the Seventh Circuit held that 

the police chief "engaged in the kind of coercion proscribed by 

the establishment clause." Id.; see also Milwaukee Deputy Sheriffs 

Ass'n v. Clarke, 513 F. Supp. 2d 1014, 1021 (E.D. Wis. 2007) 

(holding that the county sheriff and sheriff's captain 

impermissibly "promoted religion through the 'coercive power of 

government'" when they invited representatives of a Christian 

organization to convey messages containing religious content to 

deputies at mandatory work meetings) (quoting Cty. Of Allegheny, 

492 U.S. at 660), aff'd, 588 F.3d 523 (7th Cir. 2009). 

Additionally, long before Venters, the Supreme Court held that 

requiring an individual to declare a belief in God before taking 

a public office is tantamount to "forc[ing] a person 'to profess

a belief or disbelief in any religion,'" an emblematic example of 

an establishment of religion. Torcaso v. Watkins, 367 U.S. 488, 

489-90, 495 (1961). 

Appellants' attempt to create ambiguity in the law by 

analogizing this case to inapt Establishment Clause cases is 

unavailing. Appellants cite, for instance, legislative prayer 

cases, in which the Court has relied on a tradition of ceremonial 

prayers that has long co-existed with the Establishment Clause. 

See, e.g., Town of Greece v. Galloway, 134 S. Ct. 1811, 1828 (2014) 
- 20 -

(holding that opening town meetings with prayers does not violate 

the Establishment Clause because it "comports with our tradition 

and does not coerce participation by nonadherents"). They also 

cite cases involving government aid to religious schools, see, 

e.g., Lemon v. Kurtzman, 403 U.S. 602, 606-11 (1971), or religious 

displays on public premises, see, e.g., Van Orden v. Perry, 545 

U.S. 677, 681 (2005), which employ the three-part Lemon test and 

the endorsement test, respectively. See Lemon, 403 U.S. at 612-

13 (organizing the "cumulative criteria" developed in the Court's 

Establishment Clause cases into three standards, the third of which 

prohibits "excessive government entanglement of religion"); Lynch

v. Donnelly, 465 U.S. 668, 688 (1984) (O'Connor, J. concurring) 

(articulating the endorsement test as prohibiting sending "a 

message to nonadherents that they are outsiders, not full members 

of the political community, and an accompanying message to 

adherents that they are insiders, favored members of the political 

community"). 

None of these cases remotely resemble what we have 

here -- an objecting individual who was forced to observe a prayer 

and humiliated and punished for his non-conformance. Ambiguity in 

the law cannot be manufactured by borrowing from factually and

legally distinguishable cases. See El Dia, Inc. v. Rossello, 165 

F.3d 106, 110 n.3 (1st Cir. 1999) (noting that "the location and 

level of the precedent, its date, its persuasive force, and its 
- 21 -

level of factual similarity to the facts before this Court may all 

be pertinent to whether a particular precedent 'clearly 

establishes' law for the purposes of a qualified immunity 

analysis"). However complex the nuances of the Establishment 

Clause doctrine may be for cases without the direct coercion

present in this case, a reasonable officer in March 2012 would 

have known that appellants' conduct amounted to direct and tangible 

coercion, a paradigmatic example of an impermissible establishment 

of religion. 

The district court's denial of qualified immunity is, 

therefore, affirmed.

So ordered.