Souhair Khatib, Who Had Her Hijab Removed in OC Jail, to Get Her Day in Appeals Court


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The Ninth U.S. Circuit Court of Appeals granted a new hearing in the case of a Muslim woman who claims her constitutional rights were violated when Orange County sheriff's deputies forced her to remove her headscarf while she was being held in a courthouse holding facility.

Chief Judge Alex Kozinski states in a brief order that the court's judges had agreed to review Khatib v. County of Orange en banc, meaning the entire bench will hear the matter as opposed to a panel of judges.

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The San Francisco Chronicle has the scoop.

A split three-judge panel ruled in May that the Religious Land Use and Institutionalized Persons Act (RLIUIPA) did not apply to courthouse holding facilities in a lawsuit brought by Souhair Khatib.

The U.S. citizen who emigrated from Lebanon and her husband pleaded guilty in June 2006 to a misdemeanor welfare crime and were ordered to perform 30 hours of community service apiece while on probation.

When the couple went to court to ask for an extension of the community service deadline, a judge revoked their probation and put them in holding cells, where deputies, citing security concerns, ordered Khatib to remove her headscarf, which is known as a hijab.

She was then dragged back before the judge without her hijab. The judge then extended the deadline and restored her probation.

Khatib, noting her religion forbids her from exposing her head or neck to men outside her immediate family, sued the County or Orange and several officials for damages.

U.S. District Court Judge David O. Carter in Santa Ana ruled in 2008 that Khatib's allegations were sufficient to establish the elements of a claim for intentional infliction of emotional distress under the Free Exercise Clause.

However, Carter also ruled she lacked standing to seek equitable relief because she could not show a real and immediate danger that she would be compelled to remove the hijab again. And the judge dismissed Khatib's RLIUIPA claim on the grounds the cell was not an "institution" under the act as written by Congress.

Two judges agreed with Carter on appeal, but Kozinski dissented, especially on the RLIUIPA point, writing, "Can we honestly say that a mammoth facility in the bowels of the Santa Ana courthouse, whose main purpose is to hold inmates while awaiting trial, cannot possibly be a pretrial detention facility? Is that really like calling a fish a fowl or an elephant a donkey?"
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