by David M. Reutter

On July 8, 2021, the U.S. Court of Appeals for the Ninth Circuit refused a request to rehear en banc a decision by a three-judge panel of the Court that three months earlier affirmed a grant of qualified immunity to a guard who monitored phone calls between a prisoner and his attorney at the now-shuttered Nevada State Prison.

As reported elsewhere in this issue, the erosion of prisoners’ Fourth Amendment protection from unreasonable seizure of private consultations with defense attorneys is a troubling trend, especially with the out-sourcing of prison phone services to private companies who are more difficult to sue. [See: PLN, Feb. 2022, p.21.]

The underlying events in this long-running case occurred between May 2007 and January 2008, which is when the prisoner, John Witherow, and his attorney, Donald York Evans, alleged that guards Lea Baker and Ingrid Connally violated his Fourth Amendment rights and engaged in unlawful wiretapping by listening to their calls with one another. Witherow and Evans filed suit in U.S. District Court for the District of Nevada, which dismissed their Fourth Amendment claim on November 5, 2009. See: Evans v. Skolnik, 2009 U.S. Dist. LEXIS 104427 (D. Nev.).

After a three-day trial in 2013, a jury found for Defendants on the wiretapping claim, but the district court dismissed the claims against them and entered judgment in their favor in 2014. See: Evans v. Skolnik, USDC (D. Nev.), Case No. 3:08-cv-00353-GMN-VPC (2014).

On appeal on Christmas Eve 2015, the Ninth Circuit reversed the dismissal of the Fourth Amendment claim and directed the district court to consider on remand two issues:

• whether the Nevada Department of Correction’s “practice of initially screening and occasionally ‘checking in’ on [Witherow’s] legal calls was not ‘reasonably related to legitimate penological interests;’” and, if so,

• whether there were “alternative prison policies that could satisfy” those relevant penological interests.

See: Evans v. Skolnik, 637 F. App’x 285 (9th Cir. 2015).

The district court decided that there was such a penological interest and that no alternative means could satisfy it, so it again granted Defendants’ motion to dismiss the case on February 16, 2016. See: Evans v. Skolnik, 2016 U.S. Dist. LEXIS 19134 (D. Nev.).

Once again, though, that decision was reversed due to a procedural error on May 30, 2017. See: Evans v. Baker, 691 F. App’x 488 (9th Cir. 2017).

While the case was pending on remand, Connally died, and she was dismissed from the case. The district court then granted Baker’s motion for summary judgment, finding she had not violated a constitutional right, and if she had, that right was not clearly established. See: Evans v. Skolnik, 2018 U.S. Dist. LEXIS 190342 (D. Nev.).

Witherow was by then eight years out of prison, nevertheless he returned to the Ninth Circuit, which noted on appeal that Baker testified she screened Witherow’s calls solely to ascertain that he was calling a legal entity. She said that after 20 minutes, she would ‘check in’ again to assure he was still making a legal call. She also said that she did not recall ever hearing anything that was of an attorney-client nature.

The Court focused on the “clearly established” prong of qualified immunity, but it found no precedent establishing that Baker’s conduct violated the Fourth Amendment by ‘checking in’ on Witherow’s calls. Thus, she was entitled to qualified immunity. Because of that, the Court declined to address the merits of Baker’s Fourth Amendment claim, and the district court’s order was affirmed on May 18, 2021. See: Evans v. Skolnik, 997 F.3d 1060 (9th Cir. 2021).

Judge Berzon concurred in part and dissented in part. In her dissent she would have held that Baker’s monitoring of the attorney-client calls violated the Fourth amendment, before engaging in the qualified immunity analysis. Judge Berzon noted that by refusing to address the constitutional right first, “the development of constitutional precedent will be hamstrung.” 

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