by Richard Resch

In its opinion issued on May 9, 2018, the U.S. Circuit Court of Appeals for the Second Circuit held that a prisoner has a First Amendment right not to serve as a prison informant. However, since that right was not clearly established at the time the prisoner was subjected to retaliatory conduct by prison officials, the Court ruled that they were entitled to qualified immunity.

In April 2010, Mark Burns began working in the commissary at Coxsackie Correctional Facility in New York. On May 19, he was struck in the face and neck by a can that had fallen from a high shelf. He reported the injury and signed a medical waiver.

According to Burns, he was subsequently approached by Sergeant Noeh and Captain Shanley. They claimed that Burns’ wife called and reported that he had been cut by a fellow prisoner. Burns denied it and told them about the can. Ignoring his explanation, Shanley advised that he intended to recommend Burns for placement in Involuntary Protective Custody (“IPC”). But Shanley offered Burns the chance to avoid IPC if he agreed to serve as the guards’ snitch. If he didn’t agree, Shanley threatened that Burns would stay in IPC indefinitely.

Following a hearing, the hearing officer approved his placement in IPC, where he remained for about seven months. While in IPC, he was locked in his cell 23 hours a day, and his access to the library, religious services, and other prison resources were dramatically reduced. Burns stated that while in IPC, guards repeatedly demanded that he serve as their snitch, and if he agreed, he would be released from IPC. Burns also claimed that guards pressured him to provide false statements by changing his story about how he received his injuries to implicate a guard. He refused both demands.

Burns was eventually released from IPC when he was transferred to a different facility. In April 2013, he filed suit pro se arguing, among other things, a First Amendment retaliation claim under § 1983. The magistrate judge ruled that Burns was not engaged in protected speech or conduct by his refusal to snitch because no court had ever held that prisoners have a constitutional right not to serve as an informant.

The district court adopted the recommendation of the magistrate, and Burns appealed. The Second Circuit agreed to hear his appeal and appointed counsel for the limited purpose of briefing on the legal issue of whether a prisoner has a First Amendment right not serve as a prison informant.

The Court began its analysis by discussing the elements a prisoner must establish in order for his or her First Amendment retaliation claim under § 1983 to survive summary judgment: (1) the speech or conduct at issue was protected, (2) defendant took adverse action against plaintiff, and (3) there was a causal connection between the first two elements. Dolan v. Connolly, 794 F.3d 290 (2d Cir. 2015).

The Court explained that the crux of this case is whether Burns was engaged in protected speech or conduct. It observed that “[n]either we nor the Supreme Court have squarely addressed this question previously.” The Second Circuit then announced: “we hold that the First Amendment protects an inmate’s refusal both to serve as a prison informant and to provide false information.”

The First Amendment protects both a person’s right to speak freely as well as the right not to speak at all. Wooley v. Maynard, 430 U.S. 705 (1977). According to the Second Circuit, compelled speech represents “a unique affront to personal dignity.” In fact, this constitutional protection is so sacrosanct that the Supreme Court explained that “between compelled silence and compelled speech, compelled speech is the more serious incursion on the First Amendment.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). The constitutional right not to be forced to speak is well established with respect to members of the general public.

However, prisoners’ “constitutional liberties are necessarily limited,” the Second Circuit noted. The Supreme Court instructed that “the Constitution sometimes permits greater restriction of such rights in a prison than it would allow elsewhere.” Beard v. Banks, 548 U.S. 521 (2006). So simply because the general public enjoys a particular constitutional protection does not automatically mean prisoners do as well.

The seminal case on the scope of prisoners’ First Amendment rights is Turner v. Safley, 482 U.S. 78 (1987), in which the Supreme Court set forth the framework courts must use in evaluating challenges to a generally applicable prison policy or regulation. Turner mandates the examination of several factors: (1) whether the policy is reasonably related to legitimate penological interests, (2) whether there are alternative means of exercising the right that remain open, (3) the impact that accommodation of the asserted constitutional right will have on guards and prisoners, and (4) whether there are ready alternatives to the policy, indicating that the policy is an exaggerated response to prison concerns.

The Second Circuit noted that the present case does not involve a generally applicable policy or regulation, so the Turner framework is not wholly applicable. Instead, Burns’ claim arises from a single incident—placement in IPC. Nevertheless, some Turner factors are relevant to the current analysis, the Court advised.

The first and fourth factors apply to a single-incident case, the Court determined. After reviewing the Turner line of cases, the Court concluded: “in light of the unobtrusive but foundational nature of the right not to speak, we think it clear that inmates generally retain a First Amendment interest in declining to speak.”

The Court rejected the defendants’ argument, on the facts of this case, that compelling a prisoner to speak is reasonably related to the first Turner factor, i.e., the goal of prison safety. Similarly, forcing a prisoner to provide false information does not serve that legitimate goal.

In concluding that prisoners have a First Amendment right not to snitch, the Court emphasized the importance of a person’s autonomy and “individual freedom of mind.” In the prison context, those considerations undoubtedly include concerns about personal safety and personal loyalty, which “play a role in the decision to divulge information and incriminate others.” Essentially, the Court acknowledged that snitching can be fatal in prison, and thus “the degree of the intrusion on the inmate’s constitutional interests is severe.”

With respect to the fourth Turner factor, the Court concluded that forcing a prisoner to serve as an informant on an ongoing basis “is not reasonably related to a legitimate penological purpose—namely, safety.” The Court reasoned that there’s no guarantee that the selected prisoner will be able to obtain or provide information useful for the safety of the facility, and forcing a prisoner to snitch is likely to prompt more violence by those seeking retribution. The goal of prison safety is not served by forced snitching. Thus, the Court concluded that forcing a prisoner to snitch constitutes an “exaggerated response to prison concerns.”

The Court then noted that it is settled law that people have a constitutional right “to decline to participate in police questioning” and extended that right to prisoners, announcing: “the speech that we recognize today as protected by the First Amendment fits well within a broader frame of constitutional protection from the government’s ability to compel participation in investigative measures.”

After having discussed the foregoing principles and rationale, the Court ruled that “the actions of the guards here were an unreasonable incursion on Burns’ First Amendment rights.” Requiring a prisoner to provide information about illicit activity on an ongoing basis is too “heavy [a] burden for any inmate to bear.”

The Court quickly dispensed with the issue of whether a prisoner can be forced to provide false information to prison officials. In Jackler v. Byrne, 658 F.3d 225 (2011), the Second Circuit held that a person has a First Amendment right “to reject governmental efforts to require him to make statements he believes are false.”

According to the Court, there is no rational basis for not extending this right to prisoners. It stated: “No legitimate penological objective is served by forcing an inmate to provide false information. Truth is vital to security.” The Court expressly extended Jackler to the prison context. Consequently, it held that “by refusing to invent false information, Burns was engaged in First Amendment protected speech.”

The Court then concluded that Burns “made a sufficient showing of First Amendment retaliation.” Unfortunately, the pernicious judicially-created doctrine of qualified immunity shielded the defendants from civil liability. Since neither the Supreme Court nor the Second Circuit had held that the First Amendment protects the right not to snitch prior to the complained of conduct, it was not a clearly established right at that time. Therefore, “due to the novel nature of the legal questions before us, we conclude that defendants are entitled to qualified immunity.”

Accordingly, the Second Circuit affirmed the judgment of the district court. See: Burns v. Martuscello, 890 F.3d 77 (2d Cir. 2018). 

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