In Witherow v. Baker, published May 18, 2021, a divided 9th Circuit panel affirmed summary judgment for a prison officer in a suit under 42 U.S.C. section 1983 alleging violation of a prisoner's Fourth Amendment rights. The prison unit the plaintiff was in did not allow prisoners to use wall phones. The unit had a single portable phone, and each prisoner's use was limited to 20 minutes. The phone did not have caller ID. The officer would use a speaker and a flip switch to monitor the beginning of the call, to check whether the call was to an attorney or an attorney's office. The officer would then stop listening. Later in the call, the officer would check again, to see whether the prisoner had called someone else, and to make sure the prisoner was not depriving others of the phone by making unauthorized calls. The district court granted the officer summary judgment, based on qualified immunity, on the grounds that she had not violated the plaintiff's Fourth Amendment rights, and that if she had violated any such right, the right was not clearly established
The panel majority ruled that the officer was entitled to qualified immunity on the second prong: the right was not clearly established. The plaintiff failed to identify any binding authority, or a consensus of law, that a prison officer listening in on a prisoner's phone call with a civil attorney violated the prisoner's Fourth Amendment rights. The majority further concluded that there was no need to address whether the officer's actions had violated the Fourth Amendment, because the situation was fact bound (involving technology from 2007-2008); it was unclear whether violation of the attorney-client privilege would involve the Fourth Amendment; and prisoners can challenge similar practices by bringing suits for declaratory and injunctive relief.
A judge wrote an opinion concurring in part and dissenting in part. The judge opined that the panel should address whether the conduct violated the Fourth Amendment, to develop the law on that subject.
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