Opening pretrial detainee’s legal mail 15 times outside his presence was a First Amendment violation, even though he’d been suspected of receiving contraband about the witnesses against him both in legal and nonlegal mail. The First Amendment violation is injury in itself. His Fourth Amendment claim, however, that opening it outside his presence fails for qualified immunity because that isn’t clearly established. Haze v. Harrison, 2020 U.S. App. LEXIS 17957 (4th Cir. June 8, 2020):
The fact that legal mail is widely recognized to be privileged and confidential — even in the context of prisons — suggests that an incarcerated person’s expectation of privacy in his legal mail is one “that society is prepared to consider reasonable.” See id. (internal quotation marks omitted); see also Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003) (“In balancing the competing interests implicated in restrictions on prison mail, courts have consistently afforded greater protection to legal mail than to non-legal mail ….”). And although the Supreme Court held in Hudson v. Palmer, 468 U.S. 517, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984), that “the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell,” id. at 526, “nothing in Hudson indicates the Supreme Court intended to abrogate a prisoner’s expectation of privacy beyond his cell,” King v. Rubenstein, 825 F.3d 206, 215 (4th Cir. 2016) (emphasis added) (internal quotation marks omitted).
Nevertheless, Defendants are entitled to qualified immunity with respect to Haze’s Fourth Amendment claim. Neither we nor the Supreme Court has previously considered the question of whether incarcerated persons have a reasonable expectation of privacy in their legal mail. Nor is there a consensus of persuasive authority on the matter — indeed, neither party identifies a single case, in any Circuit, where interference with an incarcerated person’s legal mail was held to be violative of the Fourth Amendment. Consequently, Defendants have met their burden to show that their actions did not violate clearly established law for purposes of Haze’s Fourth Amendment claim.