The Court of Appeals for the Second Circuit has dealt a blow to the constitutional rights of imprisoned writers.
On December 11, 2012, after serving a lengthy sentence for arson-related crimes in connection with environmental activism, Daniel McGowan was released to the Brooklyn House Residential Reentry Center (RRC) to serve the remainder of his sentence. While a resident of the RRC, McGowan published an article on the Huffington Post’s website, using his own byline (i.e., name), titled “Court Documents Prove I was Sent to a Communications Management Unit (CMU) for my Political Speech.”
That article, published on April 1, 2013, detailed McGowan’s claim that he was placed in a highly restrictive Communications Management Unit in retaliation for publishing political opinion pieces. When Tracy Rivers, Residential Reentry Manager at the New York Residential Reentry Management Office of the Bureau of Prisons, read the article, she issued McGowan an incident report and ordered him remanded to a federal detention facility.
McGowan then spent 22 hours in the Special Housing Unit (SHU) of the Metropolitan Detention Center. That’s how long it took for the BOP to realize that McGowan had been placed in the SHU for violation of a policy that had been found unconstitutional and rescinded six years earlier following a district court ruling in Jordan v. Pugh, 504 F.Supp.2d 1109 (D. Colo. 2007).
McGowan subsequently filed suit for violation of his First Amendment rights, false imprisonment and negligence, under Bivens and the Federal Tort Claims Act (FTCA). The district court dismissed his claims, and a three-judge panel of the Second Circuit affirmed the dismissal in August 2016.
The appellate court found that Rivers was entitled to qualified immunity because the First Amendment right under which McGowan sued – the right to publish under his own byline – was not “clearly established” by binding precedent at the time of the incident.
On its face, the Court’s finding seems counterintuitive. After all, the BOP itself had rescinded the unconstitutional policy that, in the past, had prevented prisoners from publishing under their own byline. But as a result of the ruling, the question of whether McGowan’s First Amendment rights were violated was never reached on the merits.
The Second Circuit also determined that McGowan’s claims of false imprisonment and negligence could not go forward. Specifically, the Court of Appeals found the FTCA requires that any claim brought against the United States have a “private analogue” in tort law. Essentially, this means that the conduct complained of must be something that a private citizen would be liable for in order for the United States to be held liable.
Reviewing the circumstances, the Court noted there is no private analogue to the tort of false imprisonment, because private persons “cannot establish facilities to detain other persons – only the government can.” Thus, McGowan could not sue the United States for false imprisonment via an FTCA claim because only governments can legally confine people.
Similarly, the appellate court held that McGowan could not proceed on his negligence claim based on the BOP’s failure to follow its own policies, as “it is well established in New York law that ‘violation of a rule of an administrative agency is merely some evidence of negligence but does not establish negligence as a matter of law because a regulation lacks the force and effect of a statute.’” Further, as McGowan had failed to show violation of a rule or policy “for which the applicable state law would provide recovery,” his FTCA negligence claim failed. See: McGowan v. United States, 825 F.3d 118 (2d Cir. 2016).
This article originally appeared in Prison Legal News on May 5, 2017.