Prison Cells

A Muslim inmate originally sentenced to 240 years for the 1993 bombing of the World Trade Center is asking the federal appeals court based in Denver to revive his religious freedom lawsuit, arguing that government officials have moved him from prison to prison in an attempt to thwart a review of his case.

Ahmad Ajaj's legal battle with the Federal Bureau of Prisons has stretched for more than half a decade, as he seeks to force the BOP to honor his sincerely-held beliefs that include fasting, contact with a religious leader and the ability to participate in group prayers with other Muslims. Although Ajaj previously prevailed in court on his request to be served meals that comported with his faith, access to congregate prayer is at the center of his current case before the U.S. Court of Appeals for 10th Circuit.

"Mr. Ajaj sincerely believes that he needs to participate in group prayer with another Muslim whenever possible," Julieanne Buchanan, a student attorney with the University of Denver Sturm College of Law's Civil Rights Clinic, told a three-judge panel of the 10th Circuit last week. She argued that a lower court judge was wrong to dismiss Ajaj's claims as moot because the bureau had moved him to a different prison.

"Mr. Ajaj could not pray in a group at the time of dismissal consistently, and there has been no policy change on the part of the BOP to change this group prayer ban," she added. "Because of this, Mr. Ajaj is still burdened by this policy in the way that it prohibits him from engaging in his sincerely-held religious beliefs, and so the effects of the violation are still ongoing."

Members of the 10th Circuit panel appeared critical of the government's position that the case properly ended when the BOP transferred Ajaj from the super-maximum security prison in Florence, where he resided when he filed his lawsuit.

"I’m concerned about the consequences of your thinking, particularly when prisoners are transferred a lot," Judge Harris L Hartz told prosecutors during oral arguments on Nov. 17. "Your argument would permit the Bureau of Prisons to moot cases by saying, 'OK. You can do it in this prison [congregate prayer], but we’re gonna move you to another prison. Now your claim’s moot. You can file another claim.' It can go on ad infinitum. That’s not gonna be acceptable."

Ajaj was convicted in 1994 for the attack in New York City that killed six people. He filed his lawsuit in 2015 against the BOP and the warden of the Florence facility, known as ADX. Initially, he sought a sought a court order directing prison staff to give him his medication before dawn and after sunset during the holy month of Ramadan, when Ajaj would be fasting.

But Ajaj soon added other claims to his lawsuit, including his inability to participate in prayer with at least one other Muslim inmate.

"The Prophet Mohammed rewards those who pray in groups during Salaat," Ajaj explained in his complaint, referring to one of the five key practices of Islam that necessitates praying five times per day. "Mr. Ajaj firmly believes that Allah punishes those who fail to participate in congregational prayers and rewards those who do."

At a 2018 trial before U.S. District Court Senior Judge R. Brooke Jackson, Ajaj prevailed on one of his claims pertaining to his religious diet. However, Jackson subsequently found Ajaj's group prayer claim was moot because the BOP had since moved him out of ADX and to the U.S. Penitentiary Terre Haute in Indiana.

"Mr. Ajaj no longer has standing to challenge BOP policies regarding communal prayer," Jackson wrote in an April 2019 order. "Mr. Ajaj is apparently now able to pray communally at Terre Haute."

Then, the BOP transferred Ajaj again, this time to the Allenwood penitentiary in Pennsylvania. Ajaj asked Jackson to reconsider his decision to declare the group prayer issue moot, accusing BOP of "strategically manipulating" the litigation. Lawyers for Ajaj raised the issue of voluntary cessation, suggesting the BOP transferred Ajaj and allowed him temporary access to group prayer as measures to extinguish the case and evade the court's review.

Still, Jackson was unmoved.

"I have no reason to believe that Mr. Ajaj was transferred in any attempt to avoid or moot this Court’s orders," the judge wrote. "USP-Allenwood quickly modified its previous policy and made group prayer available to Mr. Ajaj and others. Whether this change was the result of Mr. Ajaj’s grievance, or counsel’s conference with BOP counsel, or otherwise, the fact is that group prayer is available to Mr. Ajaj. He apparently suspects that this might not be the case in the future, but that is nothing but speculation."

On appeal to the 10th Circuit, Ajaj said he believes Jackson had failed to look at the likelihood of whether the BOP would try to rescind his access to congregate prayer in the future. The appeal argued that Ajaj is seeking an injunction for the prison system as a whole, not for any particular facility.

The government, on the other hand, argued against sending the case back to the lower court.

"The claims he’s asserting are about what’s going on at ADX. Once he moved on, those restrictions at ADX no longer have any effect on him," Assistant U.S. Attorney Karl L. Schock said.

Hartz responded that he was inclined to return the case to Jackson to examine whether Ajaj is, in fact, being denied participation in regular group prayers at his current facility. Judge Veronica S. Rossman added that Jackson may have based his decision on the impression that Ajaj had retained his same level of access following his transfers.

"I think he assumed that Mr. Ajaj could pray five times a day, which is what his sincerely-held religious belief requires. But, in fact, and I think the government has conceded this  it’s less than that," she said.

Ajaj brought his claim pursuant to the Religious Freedom Restoration Act, which prohibits the government from placing a substantial burden on the exercise of religion. The law does contain an exception if the government is acting on a compelling interest and doing so in the least restrictive manner possible.

The 10th Circuit has recently rendered decisions on a string of religious freedom cases arising out of Colorado. Among the rulings, appellate panels reinstated the lawsuit of a Muslim inmate who was forced to shave his beard and allowed an atheist to sue his parole officer for forcing him into a Christian transition program.

Currently, a magistrate judge is weighing what relief may be available to an Orthodox Jewish inmate who is alleging his prison meals do not follow the kosher guidelines of his faith.

The U.S. Supreme Court is also weighing whether it violates the religious exercise rights of a Texas death row inmate for the government to deny his pastor the ability to touch him and pray out loud during the execution.

Ajaj is asking the 10th Circuit to decide his group prayer claim is not moot or to alternatively return the case to Jackson for further review. Student attorneys at DU's Civil Rights Clinic represented Ajaj before the district court, as well, including at the 2018 trial.

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

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