RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0182p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
AMERICAN CIVIL LIBERTIES UNION FUND OF ┐
MICHIGAN, │
Plaintiff-Appellee, │
│ No. 14-1617
│
v. >
│
│
LIVINGSTON COUNTY; BOB BEZOTTE, in his official │
capacity as Livingston County’s Sheriff; TOM │
CREMONTE, in his individual capacity and in his │
official capacity as Livingston County’s Jail │
Administrator, │
Defendants-Appellants. ┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:14-cv-11213—Denise Page Hood, District Judge.
Argued: April 21, 2015
Decided and Filed: August 11, 2015
Before: SILER, MOORE, and STRANCH, Circuit Judges.
_________________
COUNSEL
ARGUED: T. Joseph Seward, CUMMINGS, MCCLOREY, DAVIS & ACHO, Livonia,
Michigan, for Appellants. Daniel S. Korobkin, AMERICAN CIVIL LIBERTIES UNION
FUND OF MICHIGAN, Detroit, Michigan, for Appellee. ON BRIEF: T. Joseph Seward,
Lindsey A. Kaczmarek, CUMMINGS, MCCLOREY, DAVIS & ACHO, Livonia, Michigan, for
Appellants. Daniel S. Korobkin, Michael J. Steinberg, AMERICAN CIVIL LIBERTIES
UNION FUND OF MICHIGAN, Detroit, Michigan, Tara E. Mahoney, John J. Rolecki,
HONIGMAN MILLER SCHWARTZ AND COHN LLP, Detroit, Michigan, for Appellee.
1
14-1617 ACLU v. Livingston Cnty. et al. Page 2
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Plaintiff American Civil Liberties Union
Fund of Michigan sent letters enclosed in sealed envelopes to twenty-five inmates at the
Livingston County Jail that were marked “Legal Mail,” included the name and bar number of a
Michigan attorney, and offered legal assistance regarding the Jail’s mail policy. The Jail’s
written mail policy requires that all mail except “bona-fide legal mail” must be on 4x6 inch
postcards; “legal mail,” on the other hand, may be sent in a sealed envelope and is generally not
opened outside the inmate’s presence. The Jail did not deliver the ACLU’s letters to the inmates,
nor did the Jail inform the ACLU or the inmates that the mail was not delivered. In response, the
ACLU filed this action arguing that the Jail’s policies violated the First and Fourteenth
Amendments of the U.S. Constitution by failing to deliver the letters and by failing to notify the
ACLU or the inmates about the non-delivery. The ACLU then moved for a preliminary
injunction, which the district court granted and, in doing so, ordered the Defendants to deliver
the letters. On appeal of that interlocutory order, the Jail argues that the injunction was improper
because the Jail believes that legal mail does not include mail from an attorney if the mail neither
contains privileged content nor implicates an attorney-client relationship. We disagree, and for
the following reasons, AFFIRM the district court’s preliminary injunction.
I. FACTS AND PROCEDURE
A. Factual Background
The Livingston County Jail has adopted a “postcard policy” for mail coming in and out of
the Jail. The Jail’s mail policy requires that “[a]ll mail, except bona-fide legal mail, will be by
standard plain 4x6 postcards no images.” R. 29-3 (Inmate Rules and Regulations at 3) (Page ID
#597); see also R. 1-3 (Comp. Ex. A, Jail Website at 2) (Page ID #19). This is true “for both
incoming and out-going mail.” R. 29-3 (Inmate Rules and Regulations at 3) (Page ID #597).
The Jail’s policy further states that “[m]ail from attorneys, courts, and public officials may be
opened in front of the inmate,” establishing that mail from these sources is not subject to the 4x6
inch postcard policy. Id.; see also R. 1-3 (Comp. Ex. A, Jail Website at 2) (Page ID #19)
14-1617 ACLU v. Livingston Cnty. et al. Page 3
(“Correspondence from Attorneys, as well as court and public officials may be opened in the
presence of an inmate.”). The Jail’s written policies do not otherwise define “bona-fide legal
mail” or “mail from attorneys.” R. 1-9 (Cremonte Dep. at 100) (Page ID #89).
Defendant Tom Cremonte, the Livingston County Jail Administrator, is in charge of
determining whether incoming mail qualifies as “legal mail” under the Jail’s policies. Id. at 28‒
29 (Page ID #86). Cremonte testified in a related case, Prison Legal News v. Bezotte et al., No.
11-cv-13460 (E.D. Mich. 2011), about the Jail’s postcard policy. In that case, Cremonte defined
“bona-fide legal mail” under the Jail’s policies as “[m]ail from an attorney to a client . . . [o]r
mail that’s on a legitimate legal matter that involves the [inmate]” and “mail from the court.” R.
1-9 (Cremonte Dep. at 29, 103) (Page ID #86, 90). According to Cremonte, all other mail—
including mail from an attorney who does not have a pre-established attorney-client relationship
with an inmate—must be on white 4x6 inch postcards. In determining whether an attorney
represents an inmate in a legal matter, Cremonte testified that, if he does not know the attorney,
he or one of his sergeants will “investigate it” by asking the inmate about the sender or by calling
the “circuit court” or a “Judicial Aide who keeps track of all the attorneys.” Id. at 30‒32 (Page
ID #87). It is unclear from the record what “circuit court” Cremonte was referring to, although
Cremonte testified that the Jail’s “investigation” did not include calls to any Michigan Court of
Appeals, the Michigan Supreme Court, or the federal court systems in Michigan. Id. at 32‒33
(Page ID #87). Further, Cremonte interprets “mass mailings” as “a solicitation as opposed to a
bona fide legal matter.” Id. at 112 (Page ID #92). He also explained that “[i]f it is an attorney
from out of the county, if it’s an attorney where you get four, five pieces of mail, ‘legal mail,’
and there are four or five inmates getting them, those I would say are not legal mail” under the
Jail’s policies.1 Id. at 30 (Page ID #87). Nothing in the Jail’s written policies state that “legal
mail” to an inmate must be from an attorney of record in pending litigation; instead, this is a
practice established by Cremonte. Id. at 101‒103 (Page ID #89‒90). Nor do the Jail’s written
policies suggest that mail from an out-of-county attorney to “four or five” inmates cannot be
“bona-fide legal mail.”
1
The ACLU interpreted this testimony as meaning the “Defendants do not deliver legal mail when an
attorney from outside the county writes to four or five inmates.” R. 1 (Comp. at 9) (Page ID #9). A broader reading
of the testimony would be that the Jail does not deliver mail from an attorney from outside of the county or mail sent
to four or five inmates. The parties have not had the opportunity to explore this area through discovery, so we apply
the narrow reading here.
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The Jail’s postcard policy is the subject of the Prison Legal News v. Bezotte et al.,
litigation. In that case, the plaintiff argues that the Jail’s postcard policy unconstitutionally
restricts correspondence to prisoners and provides inadequate due-process protections to senders
of mail. Prison Legal News v. Bezotte et al., No. 11-cv-13460, R. 1 (Comp. at 1‒2) (Page ID
#1‒2). The district court in that case granted the ACLU leave to file an amicus curiae brief
relating to the constitutionality of the Jail’s postcard policy.
Because of the Jail’s postcard policy, the ACLU also mailed twenty-five letters in
envelopes to individually named inmates at the Jail. R. 1 (Comp. at 9) (Page ID #9). The
envelopes were conspicuously marked “legal mail,” and the outside of the envelopes included an
attorney’s name, the attorney’s Michigan bar number, and the ACLU’s logo and address. Id.
The letters inside the envelope were again marked “legal mail,” included ACLU letterhead, and
were signed by the attorney whose name was on the envelope. Id. The letters expressed concern
with the constitutionality of the Jail’s postcard policy and offered to meet with inmates, upon
request, to provide legal assistance regarding the issue. Id. Specifically, the letter stated:
The American Civil Liberties Union of Michigan (ACLU) is investigating the
Livingston County Jail’s troubling “postcard only” policy for inmate mail, which
we believe to be unconstitutional.
In order to learn more about this policy and its effects on inmates and their
families, we wish to meet with individuals who may be interested in challenging
this policy in court. The purpose of this letter is to find out if you are interested in
meeting with an ACLU attorney, or someone who works under the supervision of
an ACLU attorney, for the purpose of obtaining legal advice or assistance
regarding the Livingston County Jail’s postcard-only mail policy. If you are,
please fill out the enclosed form and return it to me in the enclosed envelope as
soon as possible.
Unfortunately, it is extremely unlikely that we will be able to help you with any
other legal issues you may have. Furthermore, it may turn out that we are
ultimately unable to represent you in this matter. By filling out the form below,
you would be requesting a meeting with an ACLU attorney in order to seek legal
advice or discuss the possibility of legal representation.
R. 1-8 (Comp. Ex. F, Feb. 19, 2014 Letter) (Page ID #81) (emphasis in original). The letters
included a form for inmates to fill out and return to the ACLU if they wished a meeting with an
ACLU attorney. R. 1 (Comp. at 9) (Page ID #9).
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Although the Jail received the letters, the ACLU did not receive responses from the
inmates or notification from the Jail that the letters were not delivered to the inmates. Id. at 10
(Page ID #10). After sending the letters, the ACLU learned of Cremonte’s testimony in the
Prison Legal News case noted above, in which Cremonte testified that the Jail does not deliver
mail unless the mail was sent by an inmate’s “attorney of record” in an ongoing case; the Jail
does not deliver legal mail from an attorney from outside the county who writes to four or five
inmates; and the Jail does not deliver legal mail if Jail officials determine that the letter is a
“mass mailing.” Id. Based on this testimony, the ACLU believes that the letters were not
delivered. Id. at 11 (Page ID #11). The ACLU also learned that one of the letters was addressed
to an inmate who no longer resides at the Jail, but the Jail did not return the mail to the ACLU;
instead, the Jail opened the letter and read its contents, sent a copy to the Jail’s attorneys, and
published the letter on PACER in the Prison Legal News case. Id. at 12 (Page ID #12).
B. Procedural Background
Based on this, the ACLU filed a verified complaint initiating this case against Defendants
Livingston County, Livingston County Sheriff Bob Bezotte (official capacity), and Livingston
County Jail Administrator Tom Cremonte (official and individual capacities). The ACLU
alleges that the Defendants violated the First Amendment by blocking delivery of the letters and
by reading the letters and publishing them to the public; and the Fourteenth Amendment by
blocking delivery of the letters without providing the sender or intended recipient of the letter
notice that the letter would not be delivered and an opportunity to contest the nondelivery. Id. at
12‒13 (Page ID #12‒13). The complaint seeks declaratory and injunctive relief and monetary
damages, among other things. Id. at 14–15 (Page ID #14–15).
Shortly after filing the complaint, the ACLU moved for a temporary restraining order
(“TRO”) and/or a preliminary injunction. R. 11 (Plf. Mot. for TRO/Prel. Inj.) (Page ID #114).
In its motion, the ACLU sought an order: (1) requiring the Defendants immediately to deliver
the ACLU’s letters to the inmates to whom they are addressed or return any letter if the inmate is
no longer in the Defendants’ custody; (2) enjoining the policy of refusing to deliver properly
marked legal mail sent by an attorney and individually addressed to an inmate; (3) enjoining the
Defendants from failing to “provide individualized notice and an opportunity to be heard to the
14-1617 ACLU v. Livingston Cnty. et al. Page 6
intended recipient and to the sender of any mail” that is addressed to an inmate but is not
delivered; and (4) enjoining the Defendants from “reading, sharing, or publishing the content of
legal mail” without a warrant or probable cause that the mail threatens jail security. Id. at 2, 33
(Page ID #115, 146).
The district court granted the TRO and set a hearing date for the motion for a preliminary
injunction. R. 12 (D. Ct. Ord. Granting TRO and Notice Setting Hr’g on Mot. for Prel. Inj.)
(Page ID #148). In their brief objecting to a preliminary injunction, the Defendants asserted that
“[i]ncoming mail from an attorney qualifies as privileged legal mail if the attorney represents the
inmate in a legal matter in which the inmate is involved.” R. 24 (Defs. Resp. to Prel. Inj. at 4)
(Page ID #307). Thus, the Defendants argued, because the ACLU’s letters did not contain
privileged content pertaining to an ongoing legal matter involving the inmates at issue, the letters
had to comport with the non-legal postcard policy. Id. at 12 (Page ID #315).
The district court rejected the Defendants’ position, and granted the ACLU a preliminary
injunction. The district court found that the ACLU’s letters were “legal mail” because the
envelopes were labeled as such, they clearly stated that they came from an attorney, and the
letters asked whether the inmate was interested in meeting with an attorney “for the purpose of
obtaining legal advice or assistance” regarding the Jail’s postcard policy. R. 34 (D. Ct. Op. at
13) (Page ID #633) (emphasis in original). The district court entered an order enjoining the
Defendants “from not delivering any legal mail from the ACLU to any inmate consistent with
the above decision. If the inmate is no longer in custody, Defendants must return the mail
forthwith to Plaintiff indicating same.” Id. at 17 (Page ID #637). The district court denied the
Defendants’ motion to stay the injunction pending appeal. R. 41 (D. Ct. Ord.) (Page ID #709).
This appeal followed. A motions panel of this court also denied the Defendants’ motion to stay
the injunction pending resolution of this appeal.
II. STANDARD OF REVIEW
A district court must balance four factors in determining whether to grant a preliminary
injunction: “(1) whether the movant has a strong likelihood of success on the merits; (2) whether
the movant would suffer irreparable injury absent the injunction; (3) whether the injunction
would cause substantial harm to others; and (4) whether the public interest would be served by
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the issuance of an injunction.” Bays v. City of Fairborn, 668 F.3d 814, 818‒19 (6th Cir. 2012)
(citing Certified Restoration Dry Cleaning Network, LLC v. Tenke Corp., 511 F.3d 535, 542 (6th
Cir. 2007)). We normally review a district court’s weighing of the four factors for abuse of
discretion. Id. at 819. But in First Amendment cases, “‘the crucial inquiry is usually whether the
plaintiff has demonstrated a likelihood of success on the merits.’” Id. (quoting Hamilton’s
Bogarts, Inc. v. Michigan, 501 F.3d 644, 649 (6th Cir. 2007)). This is because the public’s
interest and any potential harm to the parties or others “largely depend on the constitutionality of
the [state action].” Id. (quoting Hamilton’s Bogarts, 501 F.3d at 649); see Liberty Coins, LLC v.
Goodman, 748 F.3d 682, 689 (6th Cir. 2014), cert. denied, 135 S. Ct. 950 (2015) (“[W]hen a
party seeks a preliminary injunction on the basis of a potential constitutional violation, ‘the
likelihood of success on the merits often will be the determinative factor.’” (quoting Obama for
America v. Husted, 697 F.3d 423, 436 (6th Cir. 2012))).
As a result, “[w]hether the movant is likely to succeed on the merits is a question of law
we review de novo.” City of Pontiac Retired Employees Ass’n v. Schimmel, 751 F.3d 427, 430
(6th Cir. 2014). We review the district court’s ultimate determination as to the four preliminary
injunction factors, however, for abuse of discretion. Id.; Platt v. Bd. of Comm’rs on Grievances
& Discipline of Ohio Supreme Court, 769 F.3d 447, 454 (6th Cir. 2014) (“[W]hen we look at
likelihood of success on the merits [in First Amendment cases], we independently apply the
Constitution, but we still defer to the district court’s overall balancing of the four preliminary-
injunction factors.”). In addition, “preliminary injunctions are extraordinary and drastic
remedies . . . never awarded as of right.” Platt, 769 F.3d at 453 (internal quotation marks and
brackets omitted). Thus, “[t]he party seeking a preliminary injunction bears the burden of
justifying such relief.” McNeilly v. Land, 684 F.3d 611, 615 (6th Cir. 2012).
III. ANALYSIS
A. Likelihood of Success on the Merits
1. First Amendment Claim
On appeal, the Defendants argue that the ACLU is unlikely to succeed on the merits of its
First Amendment claim because the letters at issue do not qualify as “legal mail.” The
Defendants claim that “[t]he protections accorded legal mail do not extend to mail from an
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attorney if it neither contains privileged content nor implicates the attorney-client relationship.”
Appellant Br. at 9. According to the Defendants, “[i]ncoming mail from an attorney qualifies as
legal mail if the attorney represents the inmate in a legal matter that involves the inmate.” Id.
at 3. Thus, the Defendants argue, because the ACLU does not have an existing attorney-client
relationship with any of the inmates addressed on the letters and the letters did not involve an
ongoing legal matter, the Jail was not obligated to treat the letters as “legal mail” under its mail
intake policy.
We reject the Defendants’ overly restrictive interpretation of legal mail as contrary to our
precedent and an unnecessary impingement on important First Amendment rights. We have
consistently held that “the opening of ‘legal mail’ should generally be in the inmate’s presence.”
Kensu v. Haigh, 87 F.3d 172, 174 (6th Cir. 1996) (citing Wolff v. McDonnell, 418 U.S. 539, 576‒
77 (1974)). Although “prison officials may open prisoners’ incoming mail pursuant to a uniform
and evenly applied policy with an eye to maintaining prison security,” Lavado v. Keohane, 992
F.2d 601, 607 (6th Cir. 1993), “when the incoming mail is ‘legal mail,’ we have heightened
concern with allowing prison officials unfettered discretion to open and read an inmate’s mail,”
Sallier v. Brooks, 343 F.3d 868, 874 (6th Cir. 2003). A “prisoner’s interest in unimpaired,
confidential communication with an attorney is an integral component of the judicial process
and, therefore, . . . as a matter of law, mail from an attorney implicates a prisoner’s protected
legal mail rights. See Kensu, 87 F.3d at 174 (referring to a prisoner’s right to protect the contents
of correspondence with an attorney as a ‘fundamental right’).” Id. at 877. As a result, we have
made clear that “a review of regulations governing ‘legal mail’ is subject to a heightened
standard.” Jones v. Caruso, 569 F.3d 258, 267 (6th Cir. 2009).
Contrary to the Defendants’ position, this court has never suggested that “legal mail”
requires an existing attorney-client relationship. In Sallier, we explained that “when the
incoming mail is ‘legal mail,’ . . . a prison’s security needs do not automatically trump a
prisoner’s First Amendment right to receive mail, especially correspondence that impacts upon
or has import for the prisoner’s legal rights, the attorney-client privilege, or the right of access to
the courts.” 343 F.3d at 874 (emphasis added). Applying this standard, we held that a letter
from the America Bar Association (“ABA”) is not “legal mail” because “the ABA is not a direct-
services legal organization and generally does not provide legal advice.” Id. at 875 (noting that
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“[n]othing on the envelope indicated that it contained confidential, personal, or privileged
material” (emphasis added)). Similarly, a letter from a county clerk is not legal mail because a
clerk “is not someone who can provide legal advice about a prisoner’s rights or direct legal
services and is not someone with authority to take action on behalf of a prisoner.” Id. at 876.
Mail from an attorney, however, is legal mail as a matter of law because “unimpaired,
confidential communication with an attorney is an integral component of the judicial process.”
Id. at 877. Nowhere did we suggest that the “legal mail” analysis turns on the existence of an
attorney-client relationship.
Likewise, in Kensu, we determined that “[t]he right of a prisoner to receive materials of a
legal nature, which have impact upon or import with respect to that prisoner’s legal rights and/or
matters, is a basic right recognized and afforded protection by the courts.” 87 F.3d at 174. We
then “define[d] ‘legal mail’ to include delivery of legal materials to a prisoner, properly and
clearly marked as legal materials.” Id. (emphasis added). Similarly, in Jones, we noted that the
key issue is whether communication “implicate[s] the right to petition for grievances and the
right of access to the courts.” 569 F.3d at 268. In Knop v. Johnson, we affirmed a district court
order that found that the prison’s policy of requiring prisoners to designate a particular attorney
to activate privileged treatment of legal mail was unconstitutional and that ordered a uniform
policy where “all incoming mail from attorneys and from the courts is to be treated as privileged
mail.” 977 F.2d 996, 1012 (6th Cir. 1992) (emphasis added); see also Boswell v. Mayer, 169
F.3d 384, 389‒90 (6th Cir. 1999) (contrasting “legal mail” from “the ACLU, courts, defense
attorneys, and so forth” with “mail from Prosecuting Attorneys and the Attorney General”
because the latter “will almost always consists of documents in the public record”).
Our holding in Muhammad v. Pitcher most clearly calls the Defendants’ interpretation of
“legal mail” into doubt. 35 F.3d 1081 (6th Cir. 1994). One of the issues in that case was
whether mail from the State Attorney General can ever be considered “legal mail.” The
defendants argued that such mail could never be legal mail because “the Attorney General’s
Office represents the prison and so is adverse to the inmates,” but we disagreed. Id. at 1082‒83.
In doing so, we noted that “the Attorney General’s Office frequently serves prisoners in the very
same way that legal assistance organizations such as the State Appellate Defender’s Office and
Prison Legal Services do.” Id. at 1083. We explained that an inmate may correspond with the
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Attorney General regarding legal remedies, future prosecutions, or complaints about prison
conditions, among other things, and the Attorney General’s Office “could take action on behalf
of an inmate, or on behalf of the state based upon information provided by an inmate.” Id.
(emphasis added). Indeed, “any response from the Attorney General to a confidential inquiry
may well be sensitive and confidential itself.” Id. What is important is that, as with
“correspondence from any other legal assistance organization[,] . . . a prisoner has a fundamental
interest in maintaining the confidentiality of such correspondence.” Id. Thus, like the above
language from Sallier, Kensu, Jones, and Knop, the court in Muhammad made clear that, in
determining whether correspondence is legal mail, the issue does not turn on whether there is an
existing attorney-client relationship regarding an on-going legal matter; rather, the key issue is
whether the attorney and inmate have a fundamental interest in maintaining the confidentiality of
communications relating to a legal matter.
These principles apply equally here. The ACLU’s letters are precisely the type of
communication that an attorney and an inmate would want kept confidential—the letters were
addressed to a specific inmate, clearly marked “legal mail,” and included the name and bar
number of a licensed Michigan attorney. Kensu, 87 F.3d at 174 (“defin[ing] ‘legal mail’ to
include delivery of legal materials to a prisoner, properly and clearly marked as legal
materials.”). Moreover, the substance of the letters indicated that the ACLU believed that the
Jail’s mail policy was unconstitutional, offered legal advice and assistance to the inmates, and
noted the possibility of bringing a future legal action attacking the constitutionality of the Jail’s
mail policy. See Sallier, 343 F.3d at 874 (“legal mail” is correspondence that “impacts upon or
has import for [a] prisoner’s legal rights”). Attorneys from “legal assistance organization” like
the ACLU (or any other attorney for that matter) must be able to send confidential
communication prior to initiating a legal action or formally creating an attorney-client
relationship. See Muhammad, 35 F.3d at 1083. Otherwise, attorneys will be unable to use the
mail to communicate in confidence with inmates about the Jail’s conditions of confinement or
assess whether a constitutional violation at the Jail is occurring. Indeed, both attorneys and
inmates have a strong interest in keeping communications relating to the initial investigative
stages of a legal matter confidential such that the correspondence is not disclosed to Jail
personnel or other inmates.
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Under the Defendants’ interpretation of legal mail, however, none of this pre-attorney-
client-privilege communication can be kept confidential. Indeed, pursuant to the Jail’s postcard-
only policy, absent legal mail protection for pre-attorney-client-privilege communication Jail
staff would be able to read any correspondence from an attorney pertaining to an initial-stage,
pre-litigation investigation into the conditions of confinement at the Jail, even those that
reference sensitive “confidential [or] personal” information. Sallier, 343 F.3d at 875‒77.
Together, the restrictive “legal mail” definition advocated by the Defendants and the postcard-
only policy essentially prevent attorneys from writing confidential letters to inmates about the
conditions at the Jail during the investigative stages of a legal matter. Precluding this pre-
litigation correspondence and investigation, at the very least, chills important First Amendment
rights. See Jones, 569 F.3d at 268 (“legal mail” includes legal communication that “implicate[s]
the right to petition for grievances and the right of access to the courts”); In re Primus, 436 U.S.
412, 432 (1978) (“The First and Fourteenth Amendments require a measure of protection for
‘advocating lawful means of vindicating legal rights,’ including ‘advis[ing] another that his legal
rights have been infringed and refer[ring] him to a particular attorney or group of attorneys . . .
for assistance.’”) (quoting N.A.A.C.P. v. Button, 371 U.S. 415, 434, 437 (1963)) (internal
citations omitted). Moreover, the Jail’s treatment of the ACLU letters in this case further
illustrates why protecting this type of communication is important—the letters related directly to
potential legal action against the same individuals who screen incoming legal correspondence
(including Jail Administrator Cremonte); and, during the screening process, at least one letter
(which, again, was conspicuously marked “legal mail”) was read by Jail staff and forwarded to
Jail attorneys without any notice to the sender or intended recipient. This is precisely why
confidential pre-litigation correspondence must be protected.
To counter this, the Defendants argue that the ACLU’s letters are similar to solicitations,
and they have no duty to help the ACLU solicit potential clients. Appellant Br. at 9. But this is
largely beside the point—again, an attorney must be able to communicate with an inmate in
confidence before litigation and before establishment of a formal attorney-client privilege in
order to offer legal advice or determine whether an actionable claim exists. This is precisely
what the ACLU was attempting to do here. More broadly, this argument goes to the content of
the letters; a system in which the Jail may first independently screen the substance of the legal
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communication from an attorney to a specific inmate regarding the constitutionality of jail
policies would defeat the very reason to protect legal mail—to safeguard sensitive and
confidential legal communication. Of course, this means the Jail would not know the contents of
the communication, but this is true of all legal mail. Moreover, none of this prevents the Jail
from opening the mail in the inmate’s presence to ensure the letter does not contain contraband;
rather, the Jail must simply treat the ACLU letters just like it treats legal mail generally. Thus,
because the ACLU letters at issue were marked “legal mail,” bore the name and bar number of a
licensed attorney, and offered legal assistance and advice regarding the conditions at the jail, the
letters are “legal mail” as a matter of law.
The Defendants argue that, even if we hold that the letters qualify as “legal mail,” the
district court erred because it failed to analyze the Jail’s mail policies under Turner v. Safley, 482
U.S. 78 (1987).2 Appellant Br. at 44. In Turner, the Supreme Court explained that “when a
prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is
reasonably related to legitimate penological interests” and set out four factors to aid in making
this determination. 482 U.S. at 89. But under the Jail’s written mail policy here, “bona-fide
legal mail” is not subject to the postcard requirement; instead, “mail from attorneys” may be
enclosed in an envelope and should be opened in the presence of the inmate. R. 29-3 (Inmate
Rules and Regulations at 3) (Page ID #597). The Jail’s regulations do not define “bona-fide
legal mail” or “mail from attorneys.” Instead, only the implementation of the policy by Jail
Administrator Cremonte—who was sued in his individual and official capacities—limits “legal
mail” as set forth by the Defendants. R. 1-9 (Cremonte Dep. at 100‒03) (Page ID #89‒90).
Thus, because we hold that the ACLU letters at issue are indeed “legal mail,” the Jail must
deliver the letters pursuant to, and consistent with, the Jail’s written mail regulations. This does
not render the Jail’s mail regulations invalid—the concern in Turner—and Cremonte’s
implementation of the Jail’s policy is not automatically attributed to the Jail.3 Consequently, the
2
The Defendants claim that a remand as to this issue is necessary because the preliminary injunction was
based on “incomplete factual findings and legal research.” Appellant Reply at 15. But the parties briefed the Turner
factors at the district court level and had the opportunity to present evidence relating to the issue, and the Defendants
never claimed that they were denied the opportunity to present evidence or legal arguments prior to the injunction.
We thus reject this argument.
3
At this stage in the litigation, no evidence or argument was presented as to Monell liability based on
Cremonte’s actions. See Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011) (“Official municipal policy includes
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ACLU is likely to succeed because the Jail must deliver the mail unread based on its own policy
for handling legal mail, which is what the district court’s injunction requires. See R. 34 (D. Ct.
Op. at 17) (Page ID #637); see also Lavado, 992 F.2d at 610 (“[D]isregard for established
regulations [relating to the delivery of legal mail] give rise to an inference of arbitrary or
capricious action.”); Sallier, 343 F.3d at 874 (“[W]hen the incoming mail is ‘legal mail,’ we
have heightened concern with allowing prison officials unfettered discretion to open and read an
inmate’s mail.”).
In any event, even if we apply Turner, the injunction is proper. The purpose of the
Turner factors is to help courts determine whether a prison policy “is reasonably related to
legitimate penological interests.” 482 U.S. at 89. Under the first factor, “there must be a valid,
rational connection between the prison regulation and the legitimate governmental interest put
forward to justify it.” Id. (internal quotation marks omitted). Without this, the policy is
unconstitutional, and “the other factors do not matter.” Muhammad, 35 F.3d at 1084. The
remaining three factors balance: “whether there are alternative means of exercising the right that
remain open to prison inmates”; “the impact [that] accommodation of the asserted constitutional
right will have on guards and other inmates, and on the allocation of prison resources generally”;
and whether there are “ready alternatives” available “that fully accommodate[] the prisoner’s
rights at de minimis cost to valid penological interests.” Turner, 482 U.S. at 90‒91.
Here, the main Jail policies at issue are Cremonte’s determination that “legal mail” does
not include mail from an attorney to a specific inmate that includes the attorney’s name and bar
number and is marked “legal mail” where: (1) an investigation by Jail personnel does not
indicate an attorney-client relationship and a “legitimate legal matter”; or (2) the mail is from an
attorney from outside of the county sent to “four or five inmates.”4 R. 1-9 (Cremonte Dep. at
28‒32, 102‒03) (Page ID #86‒87, 90). The Defendants argue that abandoning these policies
would “invite[] misuse and abuse of the legal mail procedures.” Appellant Br. at 51‒52. For
the decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so persistent and
widespread as to practically have the force of law.” (citing Monell v. New York City Dep’t of Social Servs., 436 U.S.
658, 691 (1978))).
4
Because the policies advocated by the Defendants on appeal are not contained in the Jail’s written mail
regulations, we assume for purposes of this analysis that Cremonte’s policies are attributed to the Jail under Monell.
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example, the Defendants claim that attorneys could use the mail to correspond with inmates
regarding non-legal issues; attorneys could smuggle contraband to inmates or pass along escape
plans; or imposters could bypass inspection of ordinary mail by using fictitious names or by
surreptitiously masquerading as actual attorneys or law firms. Id. at 52. The Defendants further
argue that the volume of incoming legal mail would increase, which would increase the burdens
on Jail personnel. Id. at 52‒53.
We see no valid connection between these policies and a legitimate interest. Nothing in
the record suggests that the parade of horribles advanced by the Defendants would occur if the
Jail is required to deliver properly marked legal mail sent in an envelope from an attorney to a
specific inmate—a policy entirely consistent with the Jail’s written policies. See R. 29-3 (Inmate
Rules and Regulations at 3) (Page ID #597) (indicating “mail from attorneys” is “bona-fide legal
mail” and not subject to the postcard requirement). As the Defendants admit, the Jail does not
actually read “legal mail,” so a motivated attorney can already misuse the mail system as the Jail
suggests. With that said, requiring that any letter marked “legal mail” include an attorney’s
name and bar number would drastically reduce the likelihood that these types of criminal and/or
unethical actions occur. Similarly, under Cremonte’s current policies an individual can
masquerade as an actual attorney who is representing an inmate to purport to satisfy the “legal
mail” definition advocated by the Defendants. And all mail—even “bona-fide legal mail” under
the Defendants’ definition—is inspected for contraband. Finally, the Defendants offer no
evidence suggesting that the volume of attorney mail would increase based on a change to the
definition of legal mail; and even if it did, the increase would be justified because inmates have a
right to correspond with attorneys pre-litigation about legal matters. See Muhammad, 35 F.3d at
1085 & n.3 (rejecting the prison’s interests in the mail policy under the first Turner factor
because “there is no evidence in the record supporting Defendants’ factual claim that the
Attorney General’s Office sends a substantial amount of mail to inmates” and noting that any
increase would be justified in any event).
Indeed, rather than bear a rational connection to a legitimate interest, the policies at issue
are arbitrary, untenable, and unnecessarily impinge on important First Amendment rights. See
Turner, 482 U.S. at 89‒90 (“[A] regulation cannot be sustained where the logical connection
between the regulation and the asserted goal is so remote as to render the policy arbitrary or
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irrational.”). The Jail’s “investigation” into whether an attorney represents an inmate is entirely
incomplete. The record suggests that Jail personnel ask the inmate about the letter, and if they
are unsatisfied with the answer, call an unknown circuit court or judicial aide. But they do not
call any federal courts or state appellate courts in Michigan; it follows that they do not contact
courts outside of Michigan. Following this incomplete investigation, Jail personnel make a
“subjective” and inexpert determination as to whether a particular legal matter is “legitimate.”
R. 1-9 (Cremonte Dep. at 103) (Page ID 90). It is unclear how Jail staff make this determination,
but if they believe the mail does not involve a legitimate legal matter, mail from a licensed
attorney to a specific inmate that is marked “legal mail” is not delivered and neither the sender
nor the intended recipient receives notice of the nondelivery. See, e.g., id. at 106 (Page ID #91)
(Cremonte explaining that he did not deliver a particular letter to an inmate because “I know all
of the attorneys . . . I know all of his cases and you don’t represent [the inmate].”).5
Furthermore, the Jail will not deliver mail marked “legal mail” from an attorney who practices
outside of the county that is addressed to “four or five inmates.” Id. at 30 (Page ID #87). Why
an out-of-county attorney cannot send legal mail to over four inmates at a time is entirely
unclear.
What is clear, however, is that the sweeping scope of these arbitrary policies bears little
connection to any legitimate interests and improperly impinges legal communication that
deserves “heightened” protection under the First Amendment. Sallier, 343 F.3d at 874. Thus,
the policies at issue fail under the first Turner factor and so “the other factors do not matter.”
Muhammad, 35 F.3d at 1084 (citing Turner, 482 U.S. at 89‒90). As a result, even under Turner,
the ACLU is likely to succeed on its First Amendment claim.
2. Fourteenth Amendment Claim
On appeal, the Defendants also argue that the ACLU is not likely to succeed in its
Fourteenth Amendment claim. In its verified complaint, the ACLU alleges that the Defendants
violated their Fourteenth Amendment procedural-due-process rights by blocking delivery of the
5
The Defendants explained at oral argument that the Jail’s inmate population is roughly 250 inmates, with
an average stay of roughly 15 days per inmate. Given the inmate population and turnover rate, common sense
dictates that an inmate may be involved in a legal matter that is unknown to Cremonte and his staff, that involves an
attorney from out of the county, or that is pending in a court other than the “circuit court” noted by Cremonte.
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ACLU letters without providing the ACLU or the intended recipient notice and an opportunity to
contest the decision. R. 1 (Comp. at 13) (Page ID #13). Indeed, it appears that the Jail does not
provide notice when it does not deliver a letter pursuant to its mail intake policy. R. 1-9
(Cremonte Dep. at 107) (Page ID #91); see Martin v. Kelley, 803 F.2d 236, 243‒44 (6th Cir.
1986) (holding a mail censorship regulation must “provide that notice of rejection be given to the
inmate-recipient,” “require that notice and an opportunity to protest the decision be given to the
author of the rejected letter,” and “provide for an appeal of the rejection decision to an impartial
third party prior to the letter being returned.”); Procunier v. Martinez, 416 U.S. 396, 418 (1974)
(“[T]he decision to censor or withhold delivery of a particular letter must be accompanied by
minimum procedural safeguards” because “[t]he interest of prisoners and their correspondents in
uncensored communication by letter . . . is plainly a ‘liberty’ interest within the meaning of the
Fourteenth Amendment even though qualified of necessity by the circumstance of
imprisonment.”), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989). At
oral argument in this case, the Defendants conceded that if the ACLU letters at issue were, in
fact, “legal mail,” the Fourteenth Amendment procedural-due-process rights asserted by the
ACLU apply. Accordingly, because we hold the letters are “legal mail” as set forth above, the
ACLU is also likely to succeed on its Fourteenth Amendment claim.
B. Balance of the Remaining Factors
Because the ACLU is likely to succeed on its constitutional claims, there is “no issue as
to the existence of the remaining preliminary injunction factors.” Miller v. City of Cincinnati,
622 F.3d 524, 540 (6th Cir. 2010). As we have explained, “even minimal infringement upon
First Amendment values constitutes irreparable injury sufficient to justify injunctive relief.” Id.
(internal quotation marks omitted). Similarly, “[w]hen a constitutional violation is likely . . . the
public interest militates in favor of injunctive relief because it is always in the public interest to
prevent violation of a party’s constitutional rights.” Id. (internal quotation marks omitted); see
also Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012) (“When constitutional rights
are threatened or impaired, irreparable injury is presumed.”); Deja Vu of Nashville, Inc. v. Metro.
Gov’t of Nashville & Davidson Cnty., 274 F.3d 377, 400 (6th Cir. 2001) (“[I]f the plaintiff shows
a substantial likelihood that the challenged law is unconstitutional, no substantial harm to others
can be said to inhere in its enjoinment.”). In any event, as set forth above, the Defendants’
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arguments relating to irreparable harm and the balance of equities—e.g., that the burden will
“adversely impact the operation and administration of the Jail,” Appellant Br. at 50—are not
persuasive. As a result, the district court did not abuse its discretion in finding the remaining
factors support granting the preliminary injunction.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s preliminary injunction.