Prisoner’s Free Speech Rights Violated by Legal Mail Opened Outside His Presence; Qualified Immunity Denied
Prisoner’s Free Speech Rights Violated by Legal Mail Opened Outside His Presence; Qualified Immunity Denied
by David M. Reutter
The Eleventh Circuit Court of Appeals held that prison officials who open legal mail outside of a prisoner’s presence are not entitled to qualified immunity in a lawsuit alleging that such conduct violates the prisoner’s free speech rights.
While incarcerated at the Georgia State Prison (GSP) from 2002 to 2007, Jamil Al-Amin received correspondence marked “legal mail” from his wife Karima, who is a licensed attorney practicing in Atlanta. In April 2002, a letter from Karima marked legal mail was accidentally opened outside Jamil’s presence. The mailroom supervisor, Sanche M. Martin, informed GSP Warden Hugh Smith that Jamil had received “mail of a personal nature” from his attorney-wife.
Prison officials ordered Jamil to submit a list of his attorneys, but he did not list his wife. In August 2003, Jamil filed a grievance requesting that all mail from attorneys addressed to him be opened in his presence, including mail from Karima. Smith denied the grievance. A grievance appeal resulted in GSP staff being instructed to “treat all mail from Karima as legal, privileged mail and to open it in [Jamil’s] presence.”
Despite that instruction, Jamil alleged that GSP continued to open mail from his wife outside his presence. Attached to his civil rights complaint were 13 envelopes from Karima marked “legal mail” that had been opened after the November 25, 2003 grievance appeal prohibiting such action. Jamil’s lawsuit did not address the reading of his legal mail by prison officials, only the opening of such mail outside his presence.
Jamil asserted First Amendment violations for interference with access to the courts and free speech, and the U.S. District Court declined to grant qualified immunity to Smith and Martin. The Eleventh Circuit examined how those rights were impacted by the opening of Karima’s letters outside Jamil’s presence.
The appellate court found the defendants were aware that Karima was Jamil’s attorney as a result of the November 2003 grievance appeal response. Under existing precedent, the constitutional right of access to the courts requires that incoming mail from a prisoner’s attorney, properly marked as such, may be opened only in the prisoner’s presence and only to inspect for contraband.
The defendants, however, argued that that precedent was no longer good law in light of Turner v. Safley, 107 S.Ct. 2254 (1987). The Eleventh Circuit disagreed, aligning itself with other circuits that have held likewise while recognizing a split with the Fifth Circuit on that issue. In sum, the Court of Appeals found “no penological interest or security concern justifies opening attorney mail outside a prisoner’s presence.”
The Court held that Jamil “would be home free on his access-to-courts claim but for the Supreme Court’s actual injury decision” in Casey v. Lewis, 116 S.Ct. 2174 (1996). To show such injury, “a plaintiff must provide evidence of such deterrence, such as a denial or dismissal of a direct appeal, habeas petition, or civil rights case that results from actions of prison officials.” As Jamil had failed to make such a showing, the district court erred in denying the defendants qualified immunity on his court access claim.
The opposite result was reached on Jamil’s free speech claim, which alleged the defendants’ conduct had “inhibited, chilled, and interfered with his communication with his attorney,” and consequently violated his First Amendment rights.
The Court of Appeals observed that mail is one medium of free speech. Given prisoners’ incarceration and distance from their attorneys, “prisoners’ use of the mail to communicate with their attorneys about their criminal cases may frequently be a more important free speech right than the use of their tongues,” the Court said.
The issue in this case was whether the defendants’ pattern and practice of opening (but not reading) Jamil’s clearly marked legal mail outside his presence sufficiently chilled, inhibited or interfered with his ability to speak, protest and complain openly to his attorney so as to infringe his right to free speech. The Court held that it did.
The Eleventh Circuit also found that the actual injury requirement in Casey does not apply to free speech claims. Further, the Court’s precedent gave the defendants clear notice that their conduct violated Jamil’s constitutional rights, and the Court flatly rejected the defendants’ argument that they did not have “fair warning” their conduct was a free speech violation. The appellate court said the focus is on whether case law gives warning that the specific conduct violates a prisoner’s rights; prison officials are not required “to cite by chapter and verse all of the constitutional bases that make [their] conduct unlawful.”
The Eleventh Circuit concluded that qualified immunity applied to the access-to-courts claim, but affirmed the district court’s order denying qualified immunity as to the free speech claim. See: Al-Amin v. Smith, 511 F.3d 1317 (11th Cir. 2008), cert. denied. This case was still pending as of May 2009; Al-Amin is represented by the Atlanta law firm of Kilpatrick Stockton, LLP.
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Related legal case
Al-Amin v. Smith
| Year | 2008 |
|---|---|
| Cite | 511 F.3d 1317 (11th Cir. 2008) |
| Level | Court of Appeals |
| Injunction Status | N/A |