Inmate presses First Amendment claim over monitored calls to his attorney

Friday, January 18, 2013

NASHVILLE — A Tennessee inmate who alleges that his phone calls to his attorney are monitored may have a First Amendment case, a federal district judge has ruled.

William Davidson Hamby Jr., who is detained at the Davidson County Sheriff’s Office in Nashville,  contends that Valerie McCullough, a jail employee, listens to his phone calls with his attorney and sometimes places the calls on speaker phone.

Hamby contends the monitoring of his calls to his attorney violates his First Amendment right to free speech and his Sixth Amendment right to the assistance of counsel.

In his lawsuit, Hamby alleges that he told his attorney: “I can’t do much time. I’ll just kill myself, for real. I’m 42 years old and I can’t do too much time. I cut myself and got about 8 staples the other day.”

Hamby says officials overheard these private comments he made to his attorney and placed him on suicide watch.

Hamby sued both McCullough and Davidson County Sheriff Daron Hall in federal court. The defendants filed a motion to dismiss the lawsuit, but on Jan. 10 U.S. District Judge Aleta A. Trauger refused.

In Hamby v. McCullough, Trauger said it was too early to dismiss Hamby’s First Amendment claim, because “it is unclear whether the defendants’ practice or policy of monitoring attorney-client telephone calls is reasonably related to legitimate penological interests.”

The “reasonably related to legitimate penological interests” standard comes from the U.S. Supreme Court’s 1987 decision in Turner v. Safley.

The defendants will have to convince the court that there were legitimate safety interests in monitoring inmate calls. Generally prisoners receive more leeway and freedom in communicating with their attorneys than appears to be the case with Hamby.

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