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Case in Point

Is There a Right Not to Snitch?

An inmate tests a new patch of constitutional ground.

Mark Burns swears he did everything right. Serving time in New York on a manslaughter conviction, he found himself working in May 2010 in the prison commissary when a can of spaghetti fell from a high shelf and struck him in the head. No big deal. He immediately reported the incident to prison staff and signed a medical waiver, and an injury report promptly was filed on his behalf. An inmate with no history of disciplinary problems, who had spent years training service dogs and helping other prisoners, Burns reported for work the next day ready to move on from the accident.

Instead, nearly eight years later, the story of the falling can turned into a dispute about the right to remain silent, which in turn morphed into one of the most significant prisoner rights decisions of the year. Prison officials used the incident, and Burns’ respected status among the prison population, to pressure Burns to become an informant, and when he refused to do so they punished him by throwing him into “involuntary protective custody” for months. The guards didn’t just ask Burns to snitch on his fellow inmates, they also asked him to provide false informant testimony against another guard. “I couldn’t give them anything that I don’t know,” Burns said later.

Burns ultimately was transferred to another prison — after nine months in segregation for refusing to falsely rat out others — and once he landed on his feet again he sued his former captors in a civil case seeking money damages. They had violated his constitutional rights in several ways, he asserted: by retaliating against him in violation of the First Amendment, by placing him in “segregation” in violation of his due process rights under the Fourteenth Amendment, and by punishing him with solitary for those nine lonely months in contravention of the Eighth Amendment prohibition of cruel and unusual punishment. “It happens on a regular basis in there,” he told us Monday.

Both a federal magistrate judge and then a district judge rejected Burns’ arguments and ruled in favor of two prison officials, who had argued they were legally shielded from liability because Burns had no legal right to refuse to become an informant. But this past May, in a decision that surely surprised court watchers, the 2nd U.S. Circuit Court of Appeals sided definitively with Burns, at least for now. The federal appeals court ruled that Burns had a constitutional right under the First Amendment not to be forced to snitch or to provide false testimony at the request of his jailers.

That was the good news for Burns. More good news came last December, when he was released from custody after serving 18 years for his crime. The bad news, however, is that while he won the argument over snitching he lost the case. The 2nd Circuit concluded that those guards were entitled to “qualified immunity” and thus could not be held liable even if a jury concluded that they had done what Burns says they did. But his case could help other inmates in the future if other courts adopt the holding, the first-of-its-kind in the country.

When Burns reported for work at the Coxsackie Correctional Facility in Greene County, New York, the day after the accident in May 2010 he says he was approached by two guards, who told him that his estranged wife had called the prison complaining that Burns had been “cut” by a fellow inmate. This would have meant, logically, that Burns had been fighting with another inmate and that would have meant that he was violating prison rules. Not true, Burns told the guards. He wasn’t “cut,” by another inmate or anyone else, he said, and reminded them that his kitchen accident had been witnessed by another guard and duly reported.

Burns at first even questioned that his wife would have made such a call but then told the two guards that he was experiencing marital difficulties — what with him serving time in prison and all — and suggested that his wife had made up the story to make trouble for her husband. No matter. The guards then pitched Burns a deal. They wouldn’t recommend that he be placed in isolated detention for fighting with another inmate if he agreed to become an informant and share with them information he gleaned from everyday life as an inmate. He refused. So they wrote him up to get him sent him away onto a wing with gang members.

But first there had to be a hearing to determine whether Burns should be sent into detention. Just before the hearing, Burns says, he was again approached by the two guards, who this time pitched a new plan. They would agree to drop the disciplinary recommendation if he were to accuse a third guard of physically causing his injuries. So now officials weren’t just asking Burns to share what he observed among the community of inmates; they were asking him to help them frame a colleague. Again, Burns refused. And a day or so later a prison hearing officer decided that Burns’ kitchen accident story, documented though it was, was less credible than the story about a prison fight raised by Burns’ estranged wife.

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Burns then was locked away, without privileges or regular access to visitors, cell-bound for 23 hours every day. For months he continued to protest his conditions of confinement, with increasing frustration and to no avail, while the two guards continued to press him to become their “snitch” and to implicate another guard. Burns only got out of this level of detention when he was transferred to another state prison in 2011. That’s when be began the litigation that resulted in the 2nd Circuit’s ruling.

“The right to remain silent” is probably one of the most well-known constitutional rights. What surprises many, however, is how many exceptions there are to the right. You don’t really have a right to remain silent, for example, if you are granted immunity by a prosecutor or judge. You could be sent to jail for contempt of court if you don’t cooperate. But can prison guards punish you for refusing to cooperate with their plans to use you as an informant? The U.S. Supreme Court has never addressed that issue and other federal appeals courts have refused to address the issue when given the chance.

Burns’ attorneys understood that they were asking the federal courts to extend precedent beyond where it had been and that, in the context of prison litigation especially, it’s always hard as a matter of politics if not law to convince judges to take away immunities from prison guards by giving inmates more rights. So Burns’ attorneys urged the court to follow the logic of a 2011 ruling involving a police officer who claimed he was unfairly retaliated against by his supervisors when he refused to falsely testify about an excessive force case. The cop, the court had concluded, “had a strong First Amendment interest in refusing to make a report that was dishonest.”

What’s good for a cop ought to be good for an inmate, the defense argued. But Burns wasn’t just asking for a ruling that focused on the lies his guards allegedly were asking him to tell. He asked the court for broader First Amendment protection. The right to remain silent “prohibits the government from compelling a speaker to convey a message that undermines his autonomy and sense of identity,” they told the 2nd Circuit. A message that, considering Burns’ status as a prisoner, “subjected him to grave danger” if and when his fellow inmates learned, as they surely would have, that he was an informant for guards. “He would be forever marked…,” the lawyers told the judges, for speaking words he did not wish to speak.

To the defendants’ attorneys, this framing was overly-dramatic. A prisoner like Burns only has “First Amendment rights that are not inconsistent with his incarcerated status or the legitimate penological objectives of the corrections system,” the defendants told court. And in Burns’ case “corrections officials had a legitimate, indeed compelling, penological interest in finding out who had injured” Burns, “including whether it was related in any gang or drug activity in the facility.” By this logic, a prisoner who could not be trusted to tell the truth about his own kitchen accident somehow was supposed to serve as a trusted informant for prison officials.

The 2nd Circuit cautiously staked out new ground in a ruling that neither side has decided to appeal to the U.S. Supreme Court. “Forcing an inmate to snitch, at least on the facts presented here, is not reasonably related” to “the service of prison safety,” the court concluded. “No legitimate penological objective is served by forcing an inmate to provide false information.” And, the judges added, no prisoner should be compelled to provide even truthful information to prison guards in a manner that would label them a snitch and expose them to a significant risk of harm. If it is a violation of the Eighth Amendment for a guard to “out” an inmate as a snitch surely it is a violation of the First Amendment to force the inmate to become a snitch in the first place, the court concluded.

There is nothing in the record that suggests the two guards ever were disciplined for their alleged misconduct or even that prison officials undertook an investigation into their behavior. As far as I can tell, at least one of them still is employed at Coxsackie making a six-figure salary. And Burns? He is back home, living with his wife, the same wife who guards say implicated him in a prison fight that put him in isolated detention for all those months. She now says she never did that, that she called the prison that day in 2010 only to express concern for her husband’s safety and that her concern was misrepresented by the guards. We’ll never know the truth because there will never be a trial.