A federal judge is now weighing whether prison officials at the “supermax” facility in Florence may be held liable for allegedly violating a Muslim inmate’s constitutional right to exercise his religion.

Ahmad Ajaj was originally sentenced to 240 years for his role in the 1993 bombing of the World Trade Center. He claimed that during his approximately five-year stay in the United States Penitentiary-Administrative Maximum facility, known as ADX, prison employees deprived him of the ability to engage in group prayer, meet regularly with a religious leader, eat religiously-compliant food and fulfill his fast – all components of his Islamic beliefs.

Earlier this year, the U.S. Court of Appeals for the 10th Circuit, which hears appeals in federal cases from Colorado, sided with Ajaj by reinstating his lawsuit. Based on a new U.S. Supreme Court ruling and the trial judge’s mistaken reading of the facts, the 10th Circuit ordered that Ajaj’s claims be allowed to proceed.

On Monday, U.S. District Court Senior Judge R. Brooke Jackson again entertained the government’s request to toss Ajaj’s lawsuit, but this time on the grounds that prison officials are entitled to qualified immunity for their alleged actions. Although the goal of qualified immunity is to shield government officials from liability if they act reasonably, courts routinely grant qualified immunity unless a prior judicial decision clearly establishes that a defendant’s specific conduct violates a person’s rights.

“Rhetorically I would ask, where is the case that would have put those officers on notice,” argued Assistant U.S. Attorney Susan Prose for the defendants, “that they were obliged under the law – clearly, beyond debate – to permit him to pray five times a day?”

Prison officials “probably aren’t going around reading U.S. Supreme Court cases every day or 10th Circuit cases every day. So the whole standard is a little bit odd,” Jackson mused. “But that’s the standard.”

Representing Ajaj were multiple student attorneys from the University of Denver’s Civil Rights Clinic. Cassie Weidner, arguing against qualified immunity for the defendants, claimed Ajaj only needed to show his religious beliefs were “substantially burdened” at ADX. In response, Jackson flatly rejected the idea he could shoot down the defendants’ qualified immunity request using anything other than prior court decisions, and demanded that Weidner point to relevant cases.

“If you can do that, you’re gonna win at this stage,” he said.

Ajaj’s lawsuit, filed in 2015, outlined four ways in which ADX staff reportedly failed to accommodate his religious exercise. First, they did not provide Ajaj with medications before dawn and after sunset during periods of fasting. Second, they did not give him certified halal meals. Third, Ajaj had no regular access to an imam. Finally, he did not have the opportunity to pray five times daily with other Muslims.

He brought his claims under the First Amendment and the Religious Freedom Restoration Act, which forbids government officials from substantially burdening religious exercise without a compelling reason for doing so.

Initially, Jackson dismissed all of the claims against the prison employees on the grounds that RFRA does not allow a plaintiff to claim monetary damages against individuals. Meanwhile, the Federal Bureau of Prisons moved Ajaj out of ADX and to other facilities, prompting Jackson to find that Ajaj no longer had standing to seek policy changes at the Florence prison.

Ajaj accused the BOP of “strategically manipulating” the litigation in an attempt to evade judicial review – specifically, of the group prayer restrictions placed on him. Jackson rejected that notion and found Ajaj’s then-placement in Terre Haute, Ind. had accommodated Ajaj’s religious beliefs.

“The only concrete fact is that Mr. Ajaj is currently allowed to pray five times daily in a group setting at Terre Haute, and as such he suffers no injury-in-fact,” Jackson wrote in August 2018.

But in February of this year, the 10th Circuit found Ajaj’s claim was not moot after all. The evidence actually suggested Ajaj could not pray five times daily with other Muslims as his beliefs mandated. Further, the Supreme Court had issued a recent decision finding RFRA does, in fact, permit plaintiffs to seek monetary damages against individual officials. The 10th Circuit returned the case to Jackson to decide whether qualified immunity could still operate to block Ajaj’s claims against ADX employees.

“I remember that on my first day in this job, which was I believe Sept. 26, 2011, when they wheeled in a cart with over 200 cases that had been assigned to me, one was Mr. Ajaj,” Jackson observed to the parties in July, following the 10th Circuit’s order. “Here I am near the end of my career still dealing with the issues between Mr. Ajaj and the Bureau of Prisons.”

During arguments on the issue of qualified immunity, the government reiterated that no prior court case would have alerted prison officials they would violate Ajaj’s constitutional rights by denying him various means of expressing his faith. Jackson appeared most concerned about Ajaj’s group prayer claim, as the lawsuit alleged Christian and Jewish prisoners were permitted to pray together at ADX, but not Muslims.

“How could it not be unlawful to allow some religions to engage in congregate prayer but the Muslims, not?” he asked.

“Even if there were some people, some employees at that institution, allowing this,” responded Prose, “they were clearly allowing more than the law required.”

She also emphasized that ADX, as the most secure prison in the BOP system, enforces restrictions that are different from what inmates experience in other facilities. Consequently, prior caselaw must be tailored to ADX’s circumstances.

Weidner, in contrast, spent the bulk of her time arguing for the viability of Ajaj’s fasting claim. She produced a document purporting to show Ajaj had satisfied the prison’s internal grievance requirement by asking to receive his medications outside of fasting hours.

“I don’t understand for the life of me why you’re focused on this issue because I think it’s the weakest of your four issues,” the judge responded. He was also concerned that Ajaj had not specifically described which prison defendants were actually responsible for denying his requests for religious accommodation.

“You’re asking for money damages against these guys. You’re asking some guy at ADX who was a guard or a supervisor to guards to pay money personally out of their pocket to Ajaj,” he told Ajaj’s lawyers. “What was it that made it reasonably clear to them, as established law, that they had to (accommodate him) back in 2012?”

Ajaj’s case was one of two Jackson heard on Monday after the 10th Circuit reversed his dismissal decision. The other case pertained to a student’s free speech and due process rights in the Cherry Creek School District.

Also on Monday, the federal district court announced that Prose, the lawyer defending the prison officials, would be appointed as a federal magistrate judge.

The case is Ajaj v. Federal Bureau of Prisons et al.