when you get arrested ...
including the right to keep your shoes and belt, and if you are held pending a trial, you will be given a pretty orange jumpsuit to wear as well
we wouldn't want her hanging herself with the headscarf ......... oh wait
I'm pretty sure you
don't lose most of your rights just because you're arrested. If you did, then the notion of having rights wouldn't mean nearly as much. If the government could get around your rights protections merely by arresting you then, really, you'd have rights in name only. To be sure, the government does get away with just that to some extent - to far too great an extent if you ask me - but we still at least pretend that people continue to have quite a body of rights, even when they get arrested.
Now, yes, for practical reasons the government is allowed to do certain things to someone when it arrests them that it generally wouldn't be allowed to do otherwise. That's pretty much axiomatic: Indeed, doing those things is part of what it means to arrest someone. But, if anything, when someone is arrested is when many of their rights are most prominent. It is in that context that many of their rights are most relevant.
Turning to this situation in particular, if the facts are as alleged in the complaint I suspect Ms. Kazan has a reasonable case to make. Perhaps it's a close call. But based on the Supreme Court's reasoning in its recent
Holt v Hobbs decision, her right to only remove her hijab in front of other females (and not in front of male officers) may well be protected under the RLUIPA (The Religious Land Use and Institutionalized Persons Act of 2000) even if it isn't protected by the Constitution.
I wouldn't doubt that her religious belief that she wasn't supposed to remove her hijab in front of the male officers (in order to take her booking photo) was sincerely held, and I don't think there's much doubt that forcing her to remove it substantially burdened her exercercise of that sincerely-held belief. So the questions become, was the government furthering a compelling interest in forcing her to remove it and did it do so by the least restrictive means. The answer to the first question is probably yes, but it could be argued (fairly persuasively I think) that the answer to the second question is no. They may have been able to find a female officer to take the photo, even if that meant waiting a bit longer.
I'm not sure the government gets to say - well, we don't have enough female officers available, so you're out of luck. It is the government that is wanting to do something here, it is the government that wants to make her do something that violates her religious beliefs. So it's the government's responsibility, with reasonable limits of course, to have a system in place and to have resources available so as to do what
it wants to do without substantially interfering with people's free exercise of their religion. Being the government isn't supposed to be a cakewalk, exercising sovereign power (which is no small thing, regard it fairly cavalierly - as it is so ubiquitous - though we do) isn't supposed to be without complications and always requiring only a minimum of effort. Not in our nation anyway, the balance we chose to strike is supposed to often cut much the other way. If the government wants to arrest people, it should make reasonable efforts not to violate their rights or, e.g., burden their religious exercise, any more than it needs to. Imagine a female arrestee for whom there was a perceived need to do a strip search, and the male officers present took the position - oh well, there isn't a female officer around right now, so you're just gonna have to let us do it. No. Find a female officer to do it. The arrestee shouldn't have to be subject to the additional offense of having a male officer do it (rather than having a female officer do it) due to some failing, or lack of reasonable preparation, on the part of the government. I can imagine the offense in the present situation - where some women very sincerely believe they aren't allowed, based on their religious beliefs, to expose their hair and neck to unfamiliar men - isn't entirely different than in that imagined situation.
Anyway, I'm not sure she will (or should) win this case. But it wouldn't surprise me if she did, or if she only lost it because it was found that it wasn't clearly established at the time that the officers were violating her rights in a way that they weren't allowed to (even while it was also found that they were indeed doing just that).
EDIT: To add a link to the
complaint in this case, which I mentioned but forgot to link.