On May 9, 2018, Sher Tremonte won a precedent-setting victory for prisoners’ constitutional rights in the U.S. Court of Appeals for the Second Circuit.
Prison guards at a New York State prison placed Sher Tremonte’s client, Mark Burns, in segregated confinement for nearly nine months because he refused their demands to provide information about other prisoners on an ongoing basis. Mr. Burns filed suit pro se in the U.S. District Court for the Northern District of New York alleging retaliation for the exercise of his constitutional rights. The district judge held that Mr. Burns had no right to refuse to become an informant for the guards. On appeal, the Second Circuit appointed Sher Tremonte as pro bono counsel to brief a novel legal issue: whether an incarcerated individual has a constitutional right to refuse to become a prison informant.
Although no appellate court in the country had previously recognized such a “right not to snitch,” Sher Tremonte attorneys Noam Biale and Michael Gibaldi successfully argued that the First Amendment’s “right not to speak” protected Mr. Burns’s refusal to provide information. In an opinion by Circuit Judge Pooler, the Second Circuit adopted Sher Tremonte’s First Amendment theory and, breaking new legal ground, held that “the First Amendment protects both a prisoner’s right not to serve as an informant, and to refuse to provide false information to prison officials.” In reaching that conclusion, the court drew on authorities from John Adams to Justice Gorsuch, reasoning that “compelled speech presents a unique affront to personal dignity” and that “forcing an inmate to serve as an informant on an ongoing basis is not reasonably related to a legitimate penological purpose.” The court held that the guards’ “arbitrary incursion” on Mr. Burns’s “strong First Amendment interest . . . cannot be countenanced under our constitutional system.”