John Witherow v. Lea Baker

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. at

200 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.