Monday, July 13, 2020

Inmate's speech rights were violated, but qualified immunity ends the case

This is an interesting little case. The inmate was punished for writing a letter to his sister that the prison thought was a sexual threat against a female correction officer. The Court of Appeals says the inmate's rights were violated and the letter did not demonstrate any such threat. But the Court of Appeals also rules the officers get qualified immunity because they did not violate clearly-established law in punishing plaintiff.

The case is Bacon v. Langford, issued on June 8. Plaintiff wrote a letter to his sister from prison stating that he "wanted" a woman. In particular, he said there was a woman at the prison who "is very beautiful and healthy. I do want her but want a few other women as well." Believing that plaintiff was talking about a particular female correction officer, prison officials charged him with making sexual threats or proposals to the officer, even if he did not direct these statements toward the officer herself. At the disciplinary hearing, plaintiff said he and his sister often joked around this way. But he was sent to the special housing unit for 30 days and denied phone and commissary privileges. The regional director reversed the disciplinary sanctions and expunged them from his record, probably one of those rare moments when a higher authority reverses a disciplinary finding against an inmate.

Hence, this lawsuit. The Court of Appeals (Katzmann, Calabresi and Lohier) finds that, while inmates do not enjoy the free speech rights that everyone else does, they still have some rights. Nothing about the letter was profane, threatening or abusive. Rather, "it contained a mere expression of attraction communicated by a person confined in an institutionalized setting." In addition, plaintiff "did not declare his desire to the correctional officer herself or to anyone in the prison facility," expressing only to his sister in a private letter. Even deferring to the judgment exercised by prison officials, this was not a threat. That means it's protected speech under the First Amendment.

This does not mean the plaintiff can win the case. Since this is a Section 1983 case, he has to show the officials violated clearly established case law in disciplining him for the letter. This is a hallmark of qualified immunity. You need a case almost directly on point to show that the defendants were on constructive notice that they were violating the plaintiff's rights. Novel cases often fail under QI for this reason. And this is such a novel case, the Court of Appeals holds, because "the issue is whether, at the time Bacon sent a letter to a third party expressing his desire for a woman later identified as a female correctional officer, precedent from the Supreme Court or this court put prison officials on notice that they could not punish him for his statements in that correspondence. It did not." It is not enough to ask whether plaintiff's free speech rights were violated. He had to show a case like his has already been decided in an inmate's favor. There is no such case. While the next inmate-letter case might prevail in the plaintiff's favor because of Bacon's case, Bacon himself cannot win.

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