Constitutional Law

9th Circuit revives inmate's suit alleging his letter to his lawyer was read by a prison guard


A federal appeals court says a district judge erred by determining in a preliminary screening that a pro se complaint had no merit and should not be pursued in court. Arizona death-row inmate Scott Nordstrom had filed the suit alleging that his constitutional rights were violated when a prison guard read Nordstrom’s correspondence with his attorney.

In a 2-1 ruling (PDF) Monday, the San Francisco-based 9th U.S. Circuit Court of Appeals said Nordstrom sufficiently alleged that his Sixth Amendment right to counsel had been chilled by the incident and gave a green light to Nordstrom’s complaint, which seeks to prevent the Arizona Department of Corrections from reading his and other inmates’ mail in the future.

Although prison officials can open and scan legal mail in the inmate’s presence to determine if it contains contraband or discusses nonlegal subject matter, “reading legal mail—not merely inspecting or scanning it—is what Nordstrom alleges the Department of Corrections is doing, and it is what he seeks to enjoin,” Judge Barry Silverman wrote for the majority. “We hold today that his allegations, if true, state a Sixth Amendment violation.”

In dissent, Judge Jay Bybee said prison officials had a right to read Nordstrom’s legal mail in an effort to discover illegal conduct and contended his complaint was fatally defective for another reason: “Claims under the Sixth Amendment require proof of actual injury, and Nordstrom does not allege any.”

Apparently responding to this argument, the majority said proof of injury would be required if Nordstrom had been challenging a conviction based on evidence that was improperly obtained. In the instant case, however, the “harm Nordstrom alleges is not that tainted evidence was used against him but that his right to privately confer with counsel has been chilled,” the majority writes. “This is a plausible consequence of the intentional reading of his confidential legal mail.”

The Associated Press, Capital Media Services, Courthouse News, the Metropolitan News-Enterprise and the Phoenix New Times’ Valley Fever blog have stories.

A brief (PDF) filed by pro bono law student counsel on Nordstrom’s behalf provides additional details about his case. He is separately challenging his criminal conviction and contends that he is actually innocent, among other arguments.

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