UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 21-2472 _____________

CHARLES MACK, Appellant

v.

JOHN YOST, Warden; TIM KUHN, Associate Warden; JEFFREY STEPHENS, Trust Fund Officer; SAMUEL VENSLOSKY, Correctional officer, sued in their individual capacities; DOUG ROBERTS, Correctional Officer, sued in their individual capacities _______________

On Appeal from the United States District Court For the Western District of Pennsylvania (D.C. No. 3-10-cv-00264) District Judge: Honorable Kim R. Gibson _______________

Argued on September 7, 2022

Before: JORDAN, HARDIMAN, and SMITH, Circuit Judges (Filed: March 21, 2023) _______________ Sarah M. Czypinski John M. Hagan Jessica Moran [ARGUED] K&L Gates 210 Sixth Avenue Pittsburgh, PA 15222 Counsel for Appellant Christopher E. Kemmitt Michael Skocpol [ARGUED] NAACP Legal Defense & Educational Fund 700 14th Street, NW – Ste. 600 Washington, DC 20005 Adam Murphy Samuel Spital NAACP Legal Defense & Educational Fund 40 Rector Street – 5th FL. New York, NY 10006 Samuel Weiss Rights Behind Bars 416 Florida Avenue, NW - #26152 Washington, DC 20001 Counsel for Amicus Rights Behind Bars and NAACP Legal Defense & Education Fun

2 Laura S. Irwin Office of United States Attorney 700 Grant Street – Suite 4000 Pittsburgh, PA 15219 Courtney Dixon [ARGUED] United State Department of Justice Civil Division, Appellate Staff 950 Pennsylvania Avenue NW Washington, DC 20530 Counsel for Appellee

_______________

OPINION OF THE COURT _______________ JORDAN, Circuit Judge.

“Among the most inestimable of our blessings,” said Thomas Jefferson, is that “of liberty to worship our creator in the way we think most agreeable to his will … .” 1 That bedrock principle, enshrined in the Free Exercise Clause of the First Amendment, has since been reinforced through federal laws that guarantee prisoners the freedom to practice their faiths. Charles Mack, a former federal inmate and a devout Muslim, brought suit to vindicate that guarantee.

1 Letter from Thomas Jefferson to John Thomas (Nov. 18, 1807), https://rotunda. upress.virginia.edu/founders/default.xqy?keys=FOEA-print- 04-01-02-6807 (cleaned up).

3 When Mack was incarcerated, he worked at the prison commissary, where two supervising prison guards singled him out for harassment because of his Muslim faith. Most significantly, the evidence as it now stands shows that, when Mack would go to the back of the commissary to pray during shift breaks, the guards would follow him and deliberately interfere with his prayers by making noises, talking loudly, and kicking boxes. Fearing retaliation if he continued to pray at work, Mack eventually stopped doing so, but the guards nevertheless engineered his termination from his commissary job. He then sued.

The resulting case has been before us three times already, and, at this point, Mack’s lone surviving claim arises under the Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. §§ 2000bb et seq. The guards sought summary judgment on that claim, but the District Court initially denied the motion, holding that a jury could reasonably find the guards had, in violation of RFRA, substantially burdened Mack’s exercise of religion. The guards later moved for summary judgment again, this time on the theory that they are entitled to qualified immunity. On that argument, the District Court sided with them. It held that qualified immunity was warranted because no clearly