John Witherow v. Lea Baker ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONALD YORK EVANS, No. 18-17233
Plaintiff,
D.C. No.
and 3:08-cv-00353-
RCJ-CBC
JOHN WITHEROW,
Plaintiff-Appellant,
OPINION
v.
HOWARD SKOLNIK; DON HELLING;
WILLIAM DONAT; BRIAN HENLEY,
Defendants,
INMATE CALLING SOLUTIONS;
EMBARQ; GLOBAL TEL LINK,
Defendants,
and
LEA BAKER,
Defendant-Appellee,
I. CONNALLY, [376] Suggestion of
Death,
Defendant-Appellee.
2 WITHEROW V. BAKER
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Argued and Submitted May 22, 2020
San Francisco, California
Filed May 18, 2021
Before: Marsha S. Berzon and Sandra S. Ikuta, Circuit
Judges, and Ivan L.R. Lemelle,* District Judge.
Opinion by Judge Ikuta;
Partial Concurrence and Partial Dissent by Judge Berzon
SUMMARY**
Prisoner Civil Rights
The panel affirmed the district court’s summary judgment
for a prison officer based on qualified immunity in an action
brought pursuant to 42 U.S.C. § 1983 alleging that between
2007 and 2008 defendant violated plaintiff’s Fourth
Amendment rights by monitoring his phone calls to an
attorney plaintiff had engaged to bring lawsuits on his behalf.
*
The Honorable Ivan L.R. Lemelle, United States District Judge for
the Eastern District of Louisiana, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
WITHEROW V. BAKER 3
The panel exercised its discretion to consider only the
second prong of the qualified immunity analysis: whether
defendant’s conduct in initially screening and occasionally
checking in on plaintiff’s legal calls with an attorney not
representing him in a criminal matter violated a Fourth
Amendment right that was clearly established at the time.
The panel held that this conduct did not violate a clearly
established right. The panel held that plaintiff had not cited
any precedent that had placed the question beyond debate.
There was no Supreme Court case considering whether a
prison official’s monitoring of an inmate’s legal calls in this
manner violated an inmate’s Fourth Amendment rights. Nor
had plaintiff pointed to any Ninth Circuit precedent holding
that monitoring the beginning of an inmate’s calls to ensure
their legal character and then intermittently checking on those
calls to confirm their continuing legal character violated a
prisoner’s Fourth Amendment rights.
Because the panel held that defendant was entitled to
qualified immunity, the panel declined to address the merits
of plaintiff’s Fourth Amendment claim. Nevertheless, the
panel briefly responded to the concurrence’s argument that
plaintiff’s claim warranted a merits decision even though
such a decision could not affect this case’s outcome. The
panel stated that first, this case was highly fact bound and
would provide little guidance for future cases. Second,
addressing the merits of plaintiff’s Fourth Amendment claim
could result in confusion rather than clarity. Finally, the
circumstances mentioned by the Supreme Court that weighed
in favor of deciding a constitutional issue were not present
here.
Concurring in part, dissenting in part, and concurring in
the judgment, Judge Berzon wrote separately because she
4 WITHEROW V. BAKER
believed that, before addressing the second prong of the
qualified immunity inquiry, the panel should have held that
defendant’s monitoring of plaintiff’s legal calls did violate his
constitutional rights under the Fourth Amendment.
COUNSEL
Anne St. Amant (argued) and Zuzana Menzlová (argued),
Certified Law Students; Gregory C. Sisk (argued),
Supervising Attorney; University of St. Thomas School of
Law, Appellate Clinic, Minneapolis, Minnesota; for
Plaintiffs-Appellant.
D. Randall Gilmer (argued), Chief Deputy Attorney General;
Frank A. Toddre II, Senior Deputy Attorney General; Aaron
D. Ford, Attorney General; Aaron D. Ford, Attorney General;
Attorney General’s Office, Las Vegas, Nevada; for
Defendants-Appellees.
Donald Specter and Corene T. Kendrick, Prison Law Office,
Berkeley, California; David J. Fathi, ACLU National Prison
Project, Washington, D.C.; Lawrence Fox, Ethics Bureau at
Yale, New Haven, Connecticut; Sherri Royster, ACLU of
Nevada, Las Vegas, Nevada; Mary Ann Scali, National
Juvenile Defender Center, Washington, D.C.; Robin
Wechkin, Sidley Austin LLP, Seattle, Washington; for Amici
Curiae Prison Law Office, American Civil Liberties Union,
ACLU of Nevada, Ethics Bureau at Yale, National
Association of Criminal Defense Lawyers, and National
Juvenile Defender Center.
WITHEROW V. BAKER 5
Elliot Dolby Shields and Robert Rickner, Chairs, Civil Rights
& Liberties Committee, New York County Lawyers
Association, New York, New York, for Amicus Curiae Civil
Rights and Liberties Committee of the New York County
Lawyers Association.
OPINION
IKUTA, Circuit Judge:
This appeal requires us to address whether John
Witherow, a former inmate at a now-closed Nevada State
Prison, can recover damages from Lea Baker, an officer at the
prison. As required by prison policy, Baker screened and
intermittently checked in on Witherow’s phone conversations
with the attorney he had hired to bring lawsuits on his behalf.
Because Baker did not violate any Fourth Amendment right
that was clearly established at the time of her challenged
conduct, we hold that she is entitled to qualified immunity.
I
This case has a long history, including two prior appeals
to this court. The case began in 2008, when Witherow was an
inmate in a Nevada Department of Corrections (NDOC)
facility. He and his lawyer brought a joint civil action under
42 U.S.C. § 1983 against a range of defendants claiming they
had violated Witherow’s Fourth Amendment rights and
engaged in unlawful wiretapping. Witherow alleged the
prison was monitoring his calls to the attorney he had
engaged to help with his civil actions. A series of pretrial
rulings resulted in the dismissal of all parties except for
Witherow and two NDOC officers, Lea Baker and Ingrid
6 WITHEROW V. BAKER
Connally.1 After a three-day jury trial in 2013, the jury
returned a verdict for defendants on Witherow’s wiretapping
claim. In 2014, the district court dismissed Witherow’s
claims against Baker and Connally for damages and
injunctive and declaratory relief.
On appeal, we reversed the district court’s dismissal of
Witherow’s Fourth Amendment claim against Baker and
Connally in an unpublished opinion. Evans v. Skolnik, 637 F.
App’x 285, 288 (9th Cir. 2015).2 We rejected the district
court’s holding that Witherow lacked a subjective expectation
of privacy because he was aware NDOC was screening his
calls. Instead, the district court should have made a
“normative inquiry” regarding the scope of Witherow’s
Fourth Amendment rights. Id. But because Witherow was a
prisoner, “the fact that the NDOC’s practice implicated the
Fourth Amendment does not mean that Witherow's
constitutional rights were necessarily violated.” Id. We
directed the district court to consider on remand whether
“NDOC’s practice of initially screening and occasionally
‘checking in’ on [Witherow’s] legal calls was not ‘reasonably
related to legitimate penological interests,’” id. (citing Turner
v. Safley, 482 U.S. 78, 89 (1987)), and whether there were
1
Witherow’s Second Amended Complaint listed 116 causes of action
against numerous defendants. The district court dismissed certain claims
as a matter of law and entered judgment in favor of the defendants on
other claims after a jury trial.
2
We affirmed the dismissal of Witherow’s Fourth Amendment claim
against Baker and Connally’s supervisors, though we stated that if on
remand the district court determined that Baker and Connally had violated
Witherow’s Fourth Amendment rights, the court should “consider whether
the supervisory officials are liable for their failure to intervene.” Skolnik,
637 F. App’x at 288.
WITHEROW V. BAKER 7
“alternative prison policies that could satisfy” the relevant
penological objectives, id. (quoting Demery v. Arpaio,
378 F.3d 1020, 1028 n.2 (9th Cir. 2004)).
On remand, the district court again dismissed Witherow’s
Fourth Amendment claim against Baker and Connally. On
Witherow’s second appeal, we reversed the dismissal due to
a procedural error and remanded once again. Evans v. Baker,
691 F. App’x 488, 489 (9th Cir. 2017).
While the case was pending before the district court,
Connally died. Baker, the sole remaining defendant, moved
for summary judgment on Witherow’s Fourth Amendment
claim. The district court granted her motion, holding that
Baker was entitled to qualified immunity because (1) Baker
had not violated Witherow’s Fourth Amendment rights, and
(2) if she had violated any such right, that right was not
clearly established. This third appeal followed.
II
Witherow claims that Baker’s conduct in monitoring his
legal calls to the attorney representing him in civil actions
against the prison violated his Fourth Amendment rights.
Because the district court granted Baker’s motion for
summary judgment, we view the evidence in the light most
favorable to Witherow. See Espinosa v. City & County of
San Francisco, 598 F.3d 528, 532 (9th Cir. 2010).
Between May 2007 and January 2008, Baker was a
correctional officer at Nevada State Prison. During that time,
she was regularly assigned to Unit 13, the disciplinary
segregation unit, where Witherow was housed. Inmates in
8 WITHEROW V. BAKER
Unit 13 were not permitted outside their cells except in
limited circumstances.
As part of her assignment, Baker was responsible for
monitoring telephone calls. Because inmates in Unit 13 were
confined to their cells, they had to make their personal and
legal phone calls from within those cells using a portable
phone provided by prison officials instead of using wall-
mounted phones. Unit 13 consisted of two 30-prisoner units,
with one portable phone for each unit. Inmates wishing to
make legal calls would fill out a form identifying the name
and phone number of their legal representative. When the
portable phone was available, an officer would hand the
phone to the inmate who had requested it, and the inmate
would make the call from his cell.
At the time Baker was working in Unit 13, the portable
phones did not have a caller identification function. This
meant that an inmate could purport to make a legal call but
actually make a personal call, or make a legal call first and
then make personal calls. And if an inmate engaged in
lengthy personal calls, it could deprive other inmates from
using the portable phone. Officers were not allowed to
monitor the calls by standing close to the cells because of the
risk they could overhear privileged information.
To avoid improper use of the portable phones, NDOC
instituted various procedures that Baker followed.3 The
prison control center was equipped with speakers that were
wired into the portable phone lines. This allowed officers to
3
These procedures were implemented only for legal calls. Personal
calls did not receive the same protections, and were recorded by the
NDOC.
WITHEROW V. BAKER 9
listen to the conversation on the phone by flipping a switch.
Baker would listen to the beginning of a legal call to confirm
its legal character. After the inmate dialed the number, she
would wait until an attorney, secretary, or receptionist from
a law office or other professional office answer the phone.
She would then switch off the speaker. She stated that she
was not allowed “to listen to legal calls for longer than it took
to identify the party receiving the phone call” and did “not
recall ever listening to a legal call for longer than it took to
initially screen” the call. Inmates were allowed 20 minutes
on most calls, and other inmates might be waiting for the
phone. Therefore, Baker would switch the speaker back on
after some time had passed to see if the inmate was still
making a legal call. If Baker turned on the speaker “and
determined that [the inmate] was still making a legal call” she
would turn the switch off. Baker did not recall hearing any
attorney-client communication between Witherow and his
attorney.
III
A
We review a district court’s grant of summary judgment
based on qualified immunity de novo. Sandoval v. Las Vegas
Metro. Police Dep’t, 756 F.3d 1154, 1160 (9th Cir. 2014). A
government official is entitled to qualified immunity from a
claim for damages unless the plaintiff raises a genuine issue
of fact showing (1) “a violation of a constitutional right,” and
(2) that the right was “clearly established at the time of [the]
defendant’s alleged misconduct.” Pearson v. Callahan,
555 U.S. 223, 232 (2009).
10 WITHEROW V. BAKER
“We may address these two prongs in either order,”
Sandoval, 756 F.3d at 1160, but this was not always the case.
In Saucier v. Katz, the Supreme Court required courts to
determine whether a plaintiff’s allegations established a
violation of a constitutional right before determining whether
that right was clearly established. 533 U.S. 194, 201 (2001).
Saucier adopted this two-step procedure “to support the
Constitution's ‘elaboration from case to case’ and to prevent
constitutional stagnation.” Pearson, 555 U.S. at 232. But the
Supreme Court soon changed course, ruling that the sequence
of review set out in Saucier was not mandatory and courts
“should be permitted to exercise their sound discretion in
deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the
circumstances in the particular case at hand.” Id. at 236.
Pearson explained that “experience has pointed up” the
shortcoming of Saucier’s “inflexible procedure.” Id. at
233–34. As a jurisprudential matter, adhering to “Saucier’s
two-step protocol departs from the general rule of
constitutional avoidance and runs counter to the ‘older, wiser
judicial counsel not to pass on questions of constitutionality
. . . unless such adjudication is unavoidable.’” Pearson,
555 U.S. at 241 (quoting Scott v. Harris, 550 U.S. 372, 388
(2007) (Breyer, J., concurring)). Resolving a difficult
constitutional issue instead of resolving the often easier
question whether a right is clearly established “sometimes
results in a substantial expenditure of scarce judicial
resources on difficult questions that have no effect on the
outcome of the case.” Id. at 236–37. Moreover,
“[u]nnecessary litigation of constitutional issues also wastes
the parties’ resources,” and “Saucier’s two-step protocol
disserves the purpose of qualified immunity when it forces
the parties to endure additional burdens of suit—such as the
WITHEROW V. BAKER 11
costs of litigating constitutional questions and delays
attributable to resolving them—when the suit otherwise could
be disposed of more readily.” Id. at 237 (cleaned up).
Further, “[t]here are circumstances in which the first step of
the Saucier procedure may create a risk of bad
decisionmaking,” such as when “the briefing of constitutional
questions is woefully inadequate.” Id. at 239. Finally,
“although the first prong of the Saucier procedure is intended
to further the development of constitutional precedent,
opinions following that procedure often fail to make a
meaningful contribution to such development,” particularly
where the constitutional question is “so factbound that the
decision provides little guidance for future cases.” Id. at 237.
Although the Saucier protocol “should not be regarded as
mandatory in all cases,” Pearson recognized two
circumstances where reaching the constitutional issue first
would be beneficial: cases in which the court cannot readily
decide “whether a right is clearly established without
deciding precisely what the existing constitutional right
happens to be,” and cases involving “questions that do not
frequently arise in cases in which a qualified immunity
defense is unavailable.” Id. at 236 (citation omitted).
“Heeding [this] guidance,” the Supreme Court subsequently
held that police officers did not use excessive force in
violation of the Fourth Amendment when they shot two
suspects after a car chase, and therefore were entitled to
qualified immunity. Plumhoff v. Rickard, 572 U.S. 765, 774
(2012). The Court concluded that reaching the constitutional
issue was beneficial in “‘develop[ing] constitutional
precedent’ in an area that courts typically consider in cases in
which the defendant asserts a qualified immunity defense.”
Id. (quoting Pearson, 555 U.S. at 236).
12 WITHEROW V. BAKER
But despite acknowledging circumstances when defining
constitutional rights is “beneficial to clarify the legal
standards governing public officials,” the Court has made
clear that “[i]n general, courts should think hard, and then
think hard again, before turning small cases into large ones”
by resolving a constitutional question despite the plaintiff’s
inability to establish a violation of a clearly established right.
Camreta v. Greene, 563 U.S. 692, 707 (2011); see also D.C.
v. Wesby, 138 S. Ct. 577, 589 n.7 (2018) (“We continue to
stress that lower courts should think hard, and then think hard
again, before addressing both qualified immunity and the
merits of an underlying constitutional claim.” (cleaned up)).
We have likewise relied on this principle. See O’Doan v.
Sanford, 991 F.3d 1027, 1036 (9th Cir. 2021) (exercising our
discretion to resolve a case on the second ground because “no
clearly established law shows that the officers’ conduct was
unconstitutional,” and citing Wesby for the proposition that
we “should think hard, and then think hard again, before
reaching the merits of an underlying constitutional claim”).
B
In considering what constitutes “clearly established” law
for purposes of qualified immunity, the Supreme Court has
taken a narrow approach. A government official “violates
clearly established law when, at the time of the challenged
conduct, [t]he contours of [a] right [are] sufficiently clear that
every reasonable official would [have understood] that what
he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S.
731, 742 (2011) (cleaned up). “Because the focus is on
whether the officer had fair notice that her conduct was
unlawful, reasonableness is judged against the backdrop of
the law at the time of the conduct.” Brosseau v. Haugen,
WITHEROW V. BAKER 13
543 U.S. 194, 198 (2004). Thus, cases decided after the
relevant conduct are “of no use in the clearly established
inquiry.” Id. at 200 n.4.
Although the Supreme Court “does not require a case
directly on point for a right to be clearly established, existing
precedent must have placed the statutory or constitutional
question beyond debate.” Kisela v. Hughes, 138 S. Ct. 1148,
1152 (2018) (quoting White v. Pauly, 137 S. Ct. 548, 551
(2017)). “This demanding standard protects all but the plainly
incompetent or those who knowingly violate the law.”
Wesby, 138 S. Ct. at 589 (cleaned up). In determining
whether this standard is met, the Court considers whether
there are “cases of controlling authority” in the plaintiffs’
jurisdiction at the time of the incident “which clearly
established the rule on which they seek to rely,” or “a
consensus of cases of persuasive authority such that a
reasonable officer could not have believed that his actions
were lawful.” Wilson v. Layne, 526 U.S. 603, 617 (1999).
Under this rule, our analysis is straightforward if “the
right is clearly established by decisional authority of the
Supreme Court or this Circuit.” Boyd v. Benton County,
374 F.3d 773, 781 (9th Cir. 2004). Where such binding
precedent exists, “our inquiry should come to an end.” Id. If
such binding precedent is lacking, we have considered other
sources “including decisions of state courts, other circuits,
and district courts.” Id. (cleaned up). The Supreme Court has
not clarified when state and district court decisions could
place a “statutory or constitutional question beyond debate.”
al-Kidd, 563 U.S. at 741. Rather, as the Supreme Court has
pointed out, “district court decisions—unlike those from the
courts of appeals—do not necessarily settle constitutional
standards,” because “[a] decision of a federal district court
14 WITHEROW V. BAKER
judge is not binding precedent in either a different judicial
district, the same judicial district, or even upon the same
judge in a different case.” Camreta v. Greene, 563 U.S. 692,
709 n.7 (2011); see also Wilson, 526 U.S. at 616 (finding no
clearly established law where the only cases cited were a state
intermediate court decision and two unpublished district court
decisions). We have been somewhat hesitant to rely on
district court decisions in this context. See, e.g., S.B. v.
County of San Diego, 864 F.3d 1010, 1016 (9th Cir. 2017)
(rejecting plaintiffs’ argument that two district court decisions
provided clearly established law, and noting that district court
decisions “do not necessarily settle constitutional standards”);
Hamby v. Hammond, 821 F.3d 1085, 1095 (9th Cir. 2016)
(same); Marsh v. County of San Diego, 680 F.3d 1148, 1159
(9th Cir. 2012) (holding that under the facts of that case, “the
opinions by a federal district court and an intermediate state
court are insufficient to create a clearly established right”).
The Supreme Court has also warned us not to find clearly
established law “lurking in the broad ‘history and purposes of
the Fourth Amendment,’” or in “broad historical assertions.”
al-Kidd, 563 U.S. at 742 (quoting al-Kidd v. Ashcroft,
580 F.3d, 949, 971 (9th Cir. 2009)). The Supreme Court has
“repeatedly told courts—and the Ninth Circuit in
particular—not to define clearly established law at a high
level of generality.” Id. (citation omitted); see also Wood v.
Moss, 572 U.S. 744, 748 (2014). In short, “[q]ualified
immunity gives government officials breathing room to make
reasonable but mistaken judgments.” al-Kidd, 563 U.S.
at 743 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
WITHEROW V. BAKER 15
IV
In this case, we exercise our discretion to consider only
the second prong of the qualified immunity analysis: whether
Baker’s conduct in “initially screening and occasionally
‘checking in’ on [Witherow’s] legal calls” with an attorney
not representing him in a criminal matter, Skolnik, 637 F.
App’x at 288, violated a Fourth Amendment right that was
clearly established at the time.
We conclude it did not. Witherow has not cited any
precedent that has “placed the statutory or constitutional
question beyond debate.” Kisela, 138 S. Ct. at 1152 (citation
omitted). There is no Supreme Court case considering
whether a prison official’s monitoring of an inmate’s legal
calls in this manner violates the inmate’s Fourth Amendment
rights. Nor has Witherow pointed to any Ninth Circuit
precedent holding that monitoring the beginning of an
inmate’s calls to ensure their legal character and then
intermittently checking on those calls to confirm their
continuing legal character violates a prisoner’s Fourth
Amendment rights.
Instead, Witherow primarily relies on an inapposite Ninth
Circuit decision, United States v. Van Poyck, 77 F.3d 285 (9th
Cir. 1996). Van Poyck held that prison officials do not
violate an inmate’s Fourth Amendment rights by
implementing a policy of recording prisoners’ personal calls.
We reasoned that “[t]he Fourth Amendment is not triggered
unless the state intrudes into an area ‘in which there is a
constitutionally protected reasonable expectation of
privacy.’” Id. at 290 (quoting New York v. Class, 475 U.S.
106, 112 (1986)). Such an expectation of privacy exists “only
if (1) the defendant has an ‘actual subjective expectation of
16 WITHEROW V. BAKER
privacy’ in the place searched and (2) society is objectively
prepared to recognize that expectation.” Id. (quoting United
States v. Davis, 932 F.2d 752, 756 (9th Cir. 1991)). We
concluded that “neither expectation exist[ed]” because the
prisoner was aware of the prison’s monitoring policy and “no
prisoner should reasonably expect privacy in his outbound
telephone calls.” Id. at 290–91. In a footnote, Van Poyck
limited its holding to personal calls, stating that its “analysis
does not apply to ‘properly placed’ telephone calls between
a defendant and his attorney, which the [prison] does not
record or monitor.” Id. at 291 n.9. Because Van Poyck did
not address the question whether the prison could record legal
phone calls, it did not establish a Fourth Amendment right to
protection from such conduct—let alone protection from
intermittent monitoring of calls between an inmate and a
lawyer hired to bring civil damages actions.
Witherow also cites our decisions in Nordstrom v. Ryan,
762 F.3d 903 (9th Cir. 2014) (Nordstrom I), and Nordstrom
v. Ryan, 856 F.3d 1265 (9th Cir. 2017) (Nordstrom II). Given
that Baker’s conduct occurred during 2007 and 2008, six
years before Nordstrom I was decided, these cases are “of no
use in the clearly established inquiry.” Brosseau, 543 U.S. at200 n.4. Moreover, they address the question whether a
prison’s policy of reading a prisoner’s mail to an attorney
representing him in a criminal case violates a prisoner’s rights
under the First and Sixth Amendments. Nordstrom I,
762 F.3d at 909; Nordstrom II, 856 F.3d at 1272. They do not
address whether initial and intermittent monitoring of
attorney-client calls to attorneys representing an inmate in a
civil case violates the Fourth Amendment. Accordingly,
these cases are also inapposite.
WITHEROW V. BAKER 17
Nor does Witherow show any “robust consensus of cases
of persuasive authority,” City & County of San Francisco v.
Sheehan, 135 S. Ct. 1765, 1778 (2015) (citation omitted), that
placed this Fourth Amendment question “beyond debate” at
the time of Baker’s challenged conduct, al-Kidd, 563 U.S.
at 741. Witherow cites cases that address attorney-client
privilege generally, see, e.g., Upjohn v. Co. v. United States,
449 U.S. 383 (1981), and federal common law attorney-client
privilege in prison, Gomez v. Vernon, 255 F.3d 1118 (9th Cir.
2001). Such generalized discussions do not clearly establish
any constitutional right that was violated here. See al-Kidd,
563 U.S. at 742; Wood, 572 U.S. at 748. “As we have made
clear, [s]tanding alone, the attorney-client privilege is merely
a rule of evidence; it has not yet been held a constitutional
right.” Partington v. Gedan, 961 F.2d 852, 863 (9th Cir.
1992), as amended (July 2, 1992); see also Sanborn v.
Parker, 629 F.3d 554, 575 (6th Cir. 2010) (“A violation of
the attorney-client privilege is not itself a violation of the
United States Constitution or its law and treaties.” (cleaned
up)).
Witherow and his amici also cite multiple out-of-circuit,
district court, and state court decisions. None is on point.
Some fail to discuss the Fourth Amendment, others address
only inspection of prisoner mail, others deal with
communications between prisoners and attorneys
representing them in criminal proceedings, and yet others
involve the recording of entire calls, rather than intermittent
monitoring.4 A number of cases were decided after Baker’s
4
For example, Browning v. MCI Worldcom, Inc., No. 3:00-cv-0633,
Dkt. No. 248 (D. Nev. July 10, 2006), an unpublished order, addresses
other NDOC defendants’ practice of recording entire calls between
attorneys and prisoners. Likewise, Jayne v. Bosenko, No. 2:08-cv-02767-
18 WITHEROW V. BAKER
challenged conduct. Indeed, most of the cases are
distinguishable on more than one of these grounds.
Because “[a]n officer ‘cannot be said to have violated a
clearly established right unless the right’s contours were
sufficiently definite that any reasonable official in the
defendant’s shoes would have understood that he was
violating it,” Kisela, 138 S. Ct. at 1153 (quoting Plumhoff,
572 U.S. at 778–79), the lack of any precedent establishing
that Baker’s conduct violated Witherow’s Fourth Amendment
rights, or indeed that Witherow has any Fourth Amendment
rights in this context, compels the conclusion that Baker is
entitled to qualified immunity.
V
Because we hold that Baker is entitled to qualified
immunity, we decline to address the merits of Baker’s Fourth
Amendment claim. See Pearson, 555 U.S. at 236. Our
discretion to “determine the order of decisionmaking that will
best facilitate the fair and efficient disposition of each case”
makes further explanation unnecessary. Id. at 242.
Nevertheless, we briefly respond to the concurrence’s
argument that Witherow’s claim warrants a merits decision
even though such a decision cannot affect this case’s
outcome.
The Supreme Court has rejected the concurrence’s
position that “[u]nless a decision on the [merits] would
provide ‘little guidance for future cases,’ courts should . . .
MSB, 2014 WL 2801198 (E.D. Cal. June 19, 2014), was decided six years
after Baker’s challenged conduct and addresses the recording of entire
attorney-client calls.
WITHEROW V. BAKER 19
continue to develop constitutional precedent.” Conc. at
24–25 (quoting Pearson, 555 U.S. at 237).5 To the contrary,
the Court has “left this matter to the discretion of lower
courts, and indeed detailed a range of circumstances in which
courts should address only the immunity question.” Camreta,
563 U.S. at 707 (emphasis added). Many of those
circumstances are present here.
First, this case is highly factbound and would provide
“little guidance for future cases.” Pearson, 555 U.S. at 237.
Baker’s alleged conduct was specific to the disciplinary
segregation unit in the prison and the lack of technology
available at the time.6 Moreover, it involved merely the
5
In arguing that courts should “continue to develop constitutional
precedent,” Conc. at 24–25, the concurrence echoes Saucier’s reasoning.
Saucier explained that courts should address “the existence or
nonexistence of constitutional right as the first inquiry,” because “[t]he
law might be deprived of this explanation were a court simply to skip
ahead to the question whether the law clearly established that the officer's
conduct was unlawful in the circumstances of the case.” 533 U.S. at 201.
But Saucier was superseded by Pearson, which concluded that
“experience has pointed up [Saucier’s] shortcomings,” and explained why
a different approach was warranted in many circumstances. See Pearson,
555 U.S. at 233.
6
The concurrence argues that this case is not factbound because “the
constitutional question does not depend on the particular technology
used.” Conc. at 26. We disagree. The Supreme Court has recognized that
changes in technology can have a significant effect on privacy interests
protected by the Fourth Amendment. See Riley v. California, 573 U.S.
373, 393 (2014) (noting that advances in technology can increase
intrusions into personal privacy). Here, the prison’s procedure for
monitoring legal calls by conducting periodic checks of prisoner phone
calls was necessitated by the prison’s use of old technology (in this case,
portable phones lacking caller identification). Technological advances
have eliminated the need to use this procedure, and therefore eliminated
20 WITHEROW V. BAKER
“practice of initially screening and occasionally checking in
on [Witherow’s] legal calls,” Skolnik, 637 F. App’x at 287,
rather than the more common conduct of recording or
monitoring entire phone calls. Whether a constitutional
violation occurred will be “heavily dependent” on these facts,
Pearson, 555 U.S. at 237 (quoting Buchanan v. Maine,
469 F.3d 158, 168 (1st Cir. 2006)), and there is little reason
to think such facts will repeatedly occur. Witherow was
released from prison in 2010 and the Nevada State Prison
where he was incarcerated has since closed down. Prison
officials stopped monitoring attorney-client calls in the
manner alleged sometime before the prison closed, and there
is no indication that other NDOC officials are engaging in
similar conduct. Technology has changed, and prison
officials are not likely to pass portable telephones into jail
cells. Nor has Witherow presented us with any judicial
decision, from any court, describing similar conduct. In sum,
it is uncertain whether a merits ruling here will ever prove
helpful in a future case.
Second, addressing the merits of Witherow’s Fourth
Amendment claim may result in “confusion rather than
clarity.” Id. (quoting Scott, 550 U.S. at 388 (Breyer, J.,
concurring)). Witherow failed to develop the basis for his
theory that his Fourth Amendment rights were violated by the
initial screening and occasional checking of his calls with his
attorney, who was assisting Witherow to bring civil lawsuits.
We have considered prisoners’ communications with their
attorneys “under various constitutional principles, including
the First Amendment right to freedom of speech and the
Fourteenth Amendment rights to due process and access to
the question whether the old procedure violated the prisoner’s Fourth
Amendment rights.
WITHEROW V. BAKER 21
the courts,” and adopted the rule that prisoner-attorney
communications relating to the prisoner’s criminal case are
“within the scope of the Sixth Amendment right to counsel.”
Nordstrom I, 762 F.3d at 909. But Witherow’s failure to
provide any reasoned basis for why the Fourth Amendment
protection against unreasonable searches applies here weighs
against reaching the merits. See Pearson, 555 U.S. at 239.
Our prior unpublished decision, on which the concurrence
relies, Conc. at 29–30 & n.3, provides no support; it stated
only that Witherow’s Fourth Amendment rights were
“implicated,” which has no defined meaning in this context.7
See Skolnik, 637 F. App’x at 288. Witherow’s reliance on
evidentiary rules protecting a client’s communications with
his attorney from being introduced into evidence are likewise
misplaced, as such a common law privilege is not protected
by the Constitution. See Partington, 961 F.2d at 863 (holding
that “the scope of the privilege is a function of state law, not
federal constitutional law”). As Pearson makes clear, we
should not address an avoidable constitutional issue when the
briefing is inadequate. 555 U.S. at 239. Otherwise, we waste
our resources in resolving issues with “no effect on the
outcome of the case.” Id. at 237.8
7
Based on this language alone, the concurrence concludes that
Witherow’s Fourth Amendment rights were violated. Conc. at 29–30.
But as the concurrence notes, our precedent is “silent on the Fourth
Amendment implications here,” Conc. at 30 n.3, and the unpublished
decision it relies on does not explicitly hold that there was a Fourth
Amendment violation, let alone articulate any reasoning supporting one.
Skolnik, 637 F. App’x at 288.
8
Indeed, even if the Fourth Amendment applied to Witherow’s
claims, the Supreme Court’s determination that “[p]rison administrators
. . . and not the courts, [are] to make the difficult judgments concerning
institutional operations,” and its adoption of a rational-basis test to
evaluate prison rules, Turner v. Safley, 482 U.S. 78, 89 (1987), makes it
22 WITHEROW V. BAKER
Finally, the circumstances mentioned by the Supreme
Court that weigh in favor of deciding a constitutional issue
are not present here. See id. at 236. First, we can resolve the
qualified immunity question without delineating the contours
of the constitutional right at issue. Id. Given the failure of
the parties to cite any applicable case, it is easy to conclude
that there was no clearly established Fourth Amendment right
that Baker violated. Second, this is not a case involving
questions unlikely to arise except when qualified immunity is
available, see id., because prisoners may bring actions for
declaratory and injunctive relief to challenge prison conduct
alleged to violate their Fourth Amendment rights. See, e.g.,
May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997);
Michenfelder v. Sumner, 860 F.2d 328, 332–33 (9th Cir.
1988); Grummett v. Rushen, 779 F.2d 491, 495–96 (9th Cir.
1985). Were Witherow currently incarcerated and subject to
a call monitoring policy like the one before us, he could seek
such relief. A prison term is not inherently transitory such
that every prisoner’s demand for injunctive and declaratory
relief would “run the same high risk of mootness as occurred
with Witherow’s declaratory and injunctive claims here,” as
unlikely that a court would conclude that Witherow’s constitutional rights
were violated. The concurrence concludes that the prison’s call-
monitoring practice would fail this rational-basis test because there were
“readily available alternative[s]” that would fully accommodate his rights.
Conc. at 32–33. But the concurrence fails to analyze the alternative
channels through which inmates can engage in confidential
communications with their attorneys (such as face-to-face discussions or
mail), or the ripple effect on prison operations that accommodation of the
asserted right will have on prison resources, which Turner requires before
a court disrupts “the difficult judgments concerning institutional
operations [in prisons].” See Turner, 482 U.S. at 89.
WITHEROW V. BAKER 23
the concurrence claims. Conc. at 27.9 The concurrence also
contends that because “[a]ny information gleaned from the
phone calls may or may not be admissible under the rules of
evidence . . . courts [in civil cases] are thus unlikely to reach
the [Fourth Amendment] issue.” Conc. at 27. But this further
highlights that the conduct Witherow complains of raises
evidentiary issues rather than a constitutional ones. See
Partington, 961 F.2d at 863.
*
We conclude that Baker is immune from Witherow’s suit
for damages based on the Supreme Court’s admonition that
qualified immunity attaches unless we identify precedent
placing the constitutional right at issue “beyond debate” at the
time of the challenged conduct. Pauly, 137 S. Ct. at 551
(citation omitted). And we decline to address the merits of
Witherow’s constitutional claim based on the Supreme
Court’s instruction that we “think hard, and then think hard
again” before doing so. Camreta, 563 U.S. at 707.
AFFIRMED.
9
We dismiss Witherow’s claims for injunctive and declaratory relief
as moot because Witherow is no longer incarcerated. See Alvarez v. Hill,
667 F.3d 1061, 1064 (9th Cir. 2012). Once Witherow was released,
“[a]ny declaratory or injunctive relief ordered in [his] favor . . . would
have no practical impact on [his] rights and would not redress in any way
the injury he originally asserted.” Id. (quotation omitted).
24 WITHEROW V. BAKER
BERZON, Circuit Judge, concurring in part, dissenting in
part, and concurring in the judgment:
I write separately because I believe that, before
addressing the second prong of the qualified immunity
inquiry, we should hold that Baker’s monitoring of
Witherow’s legal calls did violate his constitutional rights
under the Fourth Amendment.
I
The qualified immunity inquiry is two-pronged: the Court
“must ask whether ‘the officer’s conduct violated a
constitutional right’ and whether ‘the right was clearly
established’ at the time of the alleged misconduct.” Alston v.
Read, 663 F.3d 1094, 1098 (9th Cir. 2011) (quoting Saucier
v. Katz, 533 U.S. 194, 201 (2001), overruled in part on other
grounds by Pearson v. Callahan, 555 U.S. 223, 236 (2009)).
The Court has “discretion [to] decid[e] which of the two
prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the particular
case at hand.” Pearson, 555 U.S. at 236. The first prong of
the Saucier procedure “promotes the development of
constitutional precedent,” id. at 236, and “prevent[s]
constitutional stagnation,” id. at 232.
“[T]he Saucier procedure ‘is often beneficial’ because it
‘promotes the development of constitutional precedent and is
especially valuable with respect to questions that do not
frequently arise in cases in which a qualified immunity
defense is unavailable.’” Plumhoff v. Rickard, 572 U.S. 765,
774 (2014) (quoting Pearson, 555 U.S. at 236). Indeed,
unless a decision on the first prong would “provide[] little
guidance for future cases,” courts should, I strongly believe,
WITHEROW V. BAKER 25
continue to develop constitutional precedent, to give better
guidance to officers of the law so that they may better avoid
violating rights guaranteed by the constitution. Pearson,
555 U.S. at 237. Otherwise, the lack of clearly established
law becomes perpetual, as does the lack of incentive to avoid
violations of constitutional rights in circumstances—such as
this one—in which the Fourth Amendment exclusionary rule
has little or no application. “Qualified immunity thus may
frustrate ‘the development of constitutional precedent’ and
the promotion of law-abiding behavior.” Camreta v. Greene,
563 U.S. 692, 706 (2011) (quoting Pearson, 555 U.S. at 237);
see Aaron L. Nielson & Christopher J. Walker, The New
Qualified Immunity, 89 S. Cal. L. Rev. 1, 12 (2015) (“[M]any
rights potentially might never be clearly established should a
court ‘skip ahead to the question whether the law clearly
established that the officer’s conduct was unlawful in the
circumstances of the case.’” (quoting Saucier, 533 U.S.
at 201)).
The majority contends that “[t]he Supreme Court has
rejected” an approach that forwards the development of
constitutional precedent. Op. at 18–19. That is not the
Supreme Court law or the law in this circuit. Although
Pearson held “that the Saucier protocol should not be
regarded as mandatory in all cases,” it explicitly “continue[d]
to recognize that it is often beneficial.” 555 U.S. at 236(emphasis added). “Pearson concluded that courts ‘have the
discretion to decide whether that [Saucier] procedure is
worthwhile in particular cases.’” Plumhoff, 572 U.S. at 774
(alteration in original) (quoting Pearson, 555 U.S. at 242).
For several reasons, I disagree with the majority’s
conclusion that this case presents circumstances under which
we should “address only the immunity question.” Camreta v.
26 WITHEROW V. BAKER
Greene, 563 U.S. 692, 707 (2011). First, the constitutional
question does not depend on the particular technology used
in the disciplinary segregation unit and is thus not “so
factbound that the decision provides little guidance for future
cases.” Pearson, 555 U.S. at 237. The underlying
constitutional question on which the rest of this case depends
is whether prisoners have a Fourth Amendment privacy
interest in the content of attorney-client telephone calls
related to civil cases. Both Baker’s initial screen, which
consisted of either waiting for the parties to identify
themselves or listening for language Baker judged to
“remotely sound[] legal in nature,” and the periodic checks to
determine whether the prisoners were “still making a legal
call,” included listening to at least some of the content of
Witherow’s calls. The specific phone system Baker used for
monitoring is not relevant to the analysis of whether
Witherow had a Fourth Amendment privacy interest in that
content.
The majority further contends that “Witherow failed to
develop the basis for his theory that his Fourth Amendment
rights were violated,” noting that our prior precedents have
discussed prisoner-attorney communications under the First,
Sixth, and Fourteenth Amendments, but not the Fourth.
Op. at 20–21. But Witherow argues that both this Court’s
protection of the attorney-client privilege for prisoners under
other Amendments and our case law supporting the
privilege’s “special place in the hierarchy of privacy
expectations and Fourth Amendment protections” gave him
a reasonable expectation of privacy in his phone calls with his
attorney. Witherow’s inability to cite precedent squarely on
point for his specific circumstances is relevant to the “clearly
established” analysis in the second Saucier prong, but cannot
be sufficient to make his briefing “woefully inadequate” to
WITHEROW V. BAKER 27
the extent that it weighs against deciding the first prong at all.
Pearson, 555 U.S. at 249.
Finally, the issues here “do not frequently arise in cases
in which a qualified immunity defense is unavailable,”
weighing in favor of addressing both Saucier prongs. Id.
at 236. A prisoner’s Fourth Amendment privacy interest in
attorney phone calls about civil cases is unlikely to be raised
in those civil cases themselves. Any information gleaned
from the phone calls may or may not be admissible under the
rules of evidence, but the Fourth Amendment exclusionary
rule would rarely, if ever, apply, and courts are thus unlikely
to reach the constitutional issue.1 Although the majority puts
weight on the potential for prisoners to bring actions for
declaratory or injunctive relief, such actions run the same
high risk of mootness as occurred with Witherow’s
declaratory and injunctive claims here, as prisoners are often
transferred between institutions and institutional practices
vary.
Pearson granted courts discretion; it did not require that
no other avenues be available before we address the first
Saucier prong. Instead, this Court “tend[s] to address both
prongs of qualified immunity where the ‘“two-step procedure
1
The framework for applying the exclusionary rule in specific types
of civil cases derives from United States v. Janis, 428 U.S. 433 (1976),
and requires courts to weigh the deterrence benefit of exclusion against the
“loss of often probative evidence and all of the secondary costs that flow
from the less accurate or more cumbersome adjudication.” I.N.S. v. Lopez-
Mendoza, 468 U.S. 1032, 1041 (1984). This weighing is unlikely to lead
to exclusion in a large majority of civil cases; in Janis, the Court noted
that “[i]n the complex and turbulent history of the rule, the Court never
has applied [the rule] to exclude evidence from a civil proceeding, federal
or state.” 428 U.S. at 447.
28 WITHEROW V. BAKER
promotes the development of constitutional precedent” in an
area where this court’s guidance is . . . needed.’” Horton by
Horton v. City of Santa Maria, 915 F.3d 592, 602 (9th Cir.
2019) (second alteration in original) (quoting Mattos v.
Agarano, 661 F.3d 433, 440 (9th Cir. 2011) (en banc)). Given
the unsettled nature of prisoners’ privacy rights in phone calls
with their attorneys, such guidance is needed here.
We therefore should address the first prong of the
qualified immunity inquiry in this case. Bound by precedent,
we correctly hold that Baker is entitled to qualified immunity
because of the lack of “precedent placing the constitutional
right at issue ‘beyond debate’ at the time of the challenged
conduct.” Op. at 23. Nor does any precedent since the time of
the challenged conduct squarely establish a constitutional
violation in this case, although the current caselaw points
squarely in that direction.
We can and should provide clarity on the scope of
inmates’ rights moving forward. I would address whether
Witherow had a Fourth Amendment right in properly placed
legal calls to his attorney and conclude that he did. 2
2
Witherow’s challenge to monitoring of his legal calls implicates the
Fourth Amendment, not the Sixth, because those calls concerned
Witherow’s pending and potential civil lawsuits. As discussed below, had
Witherow communicated with an attorney representing him in regard to
a criminal case, monitoring of those legal calls would also violate the
Sixth Amendment right to counsel.
WITHEROW V. BAKER 29
II
A
Turning to that question, I note, first, that the issues
before this panel on the Fourth Amendment claim are
potentially narrowed by the disposition in the first appeal in
this case. Evaluating alleged constitutional violations in the
prison context, we conduct a “two-step analysis.” Hrdlicka v.
Reniff, 631 F.3d 1044, 1048 (9th Cir. 2011). “[W]e first
determine whether any [constitutional] interest is implicated”
by a prison practice or regulation, id., and second, if it is,
such a “regulation is valid if it is reasonably related to
legitimate penological interests.” Turner v. Safely, 482 U.S.
78, 89 (1987). Turner further held that “the existence of
obvious, easy alternatives may be evidence that the regulation
is not reasonable, but is an ‘exaggerated response’ to prison
concerns.” Turner further held that “the existence of obvious,
easy alternatives may be evidence that the regulation is not
reasonable, but is an ‘exaggerated response’ to prison
concerns.”
It is the law of this case that the first step of this analysis
is satisfied. “Under the law of the case doctrine a decision of
the court in a prior appeal must be followed in all subsequent
proceedings in the same case.” Eichman v. Fotomat Corp.,
880 F.2d 149, 157 (9th Cir. 1989). The panel that heard the
first appeal held that Witherow’s Fourth Amendment rights
were “implicated by the [prison’s] practice of screening and
monitoring inmates’ attorney-client calls.” Evans v. Skolnik,
30 WITHEROW V. BAKER
637 F. App’x 285, 288 (9th Cir. 2015).3 That panel reversed
summary judgment for the defendants on the Fourth
Amendment claim and remanded “for the district court to
address [step two] in the first instance, giving particular
attention to whether there are ‘alternative prison policies that
could satisfy [the prison’s] objective[s]’ in screening the
calls.” Id. (final alteration in original) (quoting Demery v.
Arpaio, 378 F.3d 1020, 1028 n.2 (9th Cir. 2004)).
Although the earlier memorandum disposition in this case
did not spell out its reasoning on the Fourth Amendment
issue, a pair of Ninth Circuit decisions addressing inmates’
legal mail confirm that Witherow’s Fourth Amendment rights
were violated here.
Nordstrom v. Ryan held that “the Constitution does not
permit . . . reading outgoing attorney-client communication.”
762 F.3d 903, 910–11 (9th Cir. 2014) (Nordstrom I)
(emphasis omitted). Nordstrom I recognized that prison
officials may “inspect[]” legal mail “in [the prisoner’s]
presence, to make sure that it does not contain, for example,
a map of the prison yard, the time of guards’ shift changes,
escape plans, or contraband,” id. at 910, but stressed that
“inspecting letters and reading them are two different things,”
id. at 906. In a subsequent appeal, Nordstrom II held that
Arizona’s policy failed this test because it “call[ed] for page-
3
Although binding on us as the law of the case, the prior panel’s
memorandum disposition, holding that this monitoring did implicate
Witherow’s Fourth Amendment rights, is unpublished and non-
precedential. See Grimm v. City of Portland, 971 F.3d 1060, 1067 (9th
Cir. 2020). Thus, our precedent will remain silent on the Fourth
Amendment implications here, and give rise perpetually to grants of
qualified immunity, unless we reach the Fourth Amendment issues in this
case in a precedential opinion.
WITHEROW V. BAKER 31
by-page content review of inmates’ confidential outgoing
legal mail.” Nordstrom v. Ryan, 856 F.3d 1265, 1268 (9th
Cir. 2017) (Nordstrom II). Nordstrom I and Nordstrom II
stand for a clear proposition: reading the substance of
attorney-client communications violates an inmate’s
constitutional rights. 762 F.3d at 910–11; 856 F.3d at 1272.
Listening to the substance of attorney-client
communications violates an inmate’s constitutional rights in
the same way. Baker admitted that her monitoring included
listening to the some of the substance of Witherow’s legal
calls. She testified that if the recipient of a call did not
announce themselves as an attorney, which was likely in
Witherow’s case as he and his lawyer were on a first-name
basis, Baker would listen to the substance of the call until she
heard “[l]egal terminology” like “[l]awsuit, litigation, judge,
attorney, client, privileged, any—any legal terminology that
you might hear on television.” This telephone monitoring is
directly analogous to the unconstitutional practice in the
Nordstrom cases, which involved a guard’s reading the
content of legal mail “to ensure that a letter concerns only
legal subjects.” Nordstrom II, 856 F.3d at 1272. “This is
plainly not the type of inspection” that passes constitutional
muster. Id.
Nordstrom I and Nordstrom II involved a criminal
defendant’s confidential communications with his attorney
about a criminal case and so implicated the right to counsel
under the Sixth Amendment. See 762 F.3d at 910. But
attorney-client communications are no less confidential when
they concern a civil case rather than a criminal one. Indeed,
the reasoning in Nordstrom I relied on both the right to
counsel and the privacy principles underlying attorney-client
privilege. See id. Nordstrom I reasoned that “[i]t is obvious []
32 WITHEROW V. BAKER
that a policy or practice permitting prison officials . . . to read
an inmate’s letters to his counsel is highly likely to inhibit the
sort of candid communications that the right to counsel and
the attorney-client privilege are meant to protect.” Id.
The universally recognized confidentiality of attorney-
client communications also establishes a reasonable
expectation of privacy in the substance of those conversations
under the Fourth Amendment. “[T]here is an enhanced
privacy interest underlying the attorney-client relationship
which warrants a heightened degree of judicial protection
. . . .” DeMassa v. Nunez, 770 F.2d 1505, 1507 (9th Cir.
1985) (quoting Law Offices of Bernard D. Morley v.
MacFarlane, 647 P.2d 1215, 1222 (Colo. 1982)). Witherow’s
legal calls concerned pending and potential lawsuits alleging
civil rights violations by prison officials, including the same
officials that monitored his legal calls. Whether under the
Sixth Amendment, for criminal representation, or under the
Fourth Amendment, for civil representation, and whether by
mail or phone, inmates have a constitutional right to privacy
in the substance of their attorney-client communications.
B
Turning to the second Turner prong, the district court
erred on remand when it concluded that there were no
“obvious, easy alternatives,” Turner, 482 U.S. at 90, to
monitoring the substance of Witherow’s attorney-client calls.
The district court did not address at all the readily available
alternative of the existing telephone system used in every part
of the prison other than Witherow’s administratively
segregated unit. That phone system automatically detected
misuse, such as call forwarding or three-way conferencing,
and prevented the recording or monitoring of calls placed to
WITHEROW V. BAKER 33
telephone numbers that had been pre-registered and verified
as belonging to attorneys. When combined with prison
regulations that required a prison official, not the inmate, to
dial the telephone number to ensure an attorney was actually
called, this system served the prison’s penological interests
while “fully accommodat[ing] the prisoner’s right[]” to
privacy in communications with their counsel. See id. at 91.
The record shows that the technology and equipment needed
to implement this system in Witherow’s segregated unit was
either already in place or, under the existing agreement
between the prison and the phone service provider, could be
provided at no additional cost. In addition to being easy,
obvious, and unburdensome, this alternative had the added
feature of being required by prison regulations in place at the
time, see Nev. Admin. Reg. § 722.11(4) (2008), and
consistent with Nevada law providing that attorney-client
calls placed by inmates are confidential, Nev. Rev. Stat.
§ 209.419(4) (2007). Because Witherow “can point to an
alternative that fully accommodates the prisoner’s rights at de
minimis cost to valid penological interests,” Baker’s practice
of monitoring his legal calls “does not satisfy the reasonable
relationship standard,” and thus violated Witherow’s Fourth
Amendment rights. Turner, 482 U.S. at 91.
* * *
It bears repeating that if courts routinely decline to reach
the first prong of the qualified immunity inquiry, the
development of constitutional precedent will be hamstrung.
The resulting absence of clearly established law can allow for
repeated civil rights violations with no accountability or
guidance for state actors. Although Pearson permits courts
deciding qualified immunity issues to decline to decide the
constitutional issue raised, that permission is best exercised
34 WITHEROW V. BAKER
in fact-specific cases, not where, as here, a generic and
broadly applicable issue of constitutional law underlies the
disputed issues. This panel should make clear to prison
officials, going forward, that monitoring the substance of an
inmate’s properly placed legal calls is a constitutional
violation.