                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-24-2006

Jones v. Brown
Precedential or Non-Precedential: Precedential

Docket No. 03-3823




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                                 PRECEDENTIAL




   IN THE UNITED STATES COURT
OF APPEALS FOR THE THIRD CIRCUIT




              NO. 03-3823




          RONALD C. JONES,
                      Appellant

                    v.

   M. BROWN, Internal Affairs Ofc.;
   S. SOOTKOOS, Associate Warden;
     ROY L. HENDRICKS, Warden


   On Appeal From the United States
               District Court
      For the District of New Jersey
  (D.C. Civil Action No. 02-cv-03045)
District Judge: Hon. Garrett E. Brown, Jr.
                NOS. 04-4426 and 04-4493




        JAMAAL W. ALLAH; KEVIN JACKSON;
               LENNIE KIRKLAND

                             v.

*RICHARD J. CODEY, Acting Governor, N.J. (Official
Capacity); JAMES MCGREEVEY (Personal/Individual
Capacity); DEVON BROWN,Commissioner, Dept. of Corr.,
N.J. (Official/Personal/ & Individual Capacity); TERRANCE
MOORE, Administrator, East Jersey State Prison, Rahway, N.J.
(Official/Personal & Individual Capacity); JOHN/JANE DOES
(Official/Personal & Individual Capacity); ROY L.
HENDRICKS; ROBERT SHABBICK ; WAYNE
SANDERSON

               *(Pursuant to F.R.A.P. 43(c))

     Devon Brown, Terrance Moore, Roy L. Hendricks,
           Robert Shabbick, Wayne Sanderson
               Appellants in No. 04-4426

      Jamaal W. Allah; Kevin Jackson; Lennie Kirklan,
                Appellants in No. 04-4493



                             2
             On Appeal From the United States
        District Court For the District of New Jersey
            (D.C. Civil Action No. 02-cv-05298)
           District Judge: Hon. William H. Walls


                   Argued April 25, 2006

         BEFORE: FUENTES, STAPLETON and
             ALARCON,* Circuit Judges

                  (Filed: August 24, 2006 )




Ronald C. Jones (Argued)
Northern State Prison
168 Frontage Road
P.O. Box 2300
Newark, NJ 07114-2300
 Appellant Pro Se in No. 03-3823

Peter C. Harvey
Patrick DeAlmeida
Christopher C. Josephson (Argued)


* Hon. Arthur L. Alarcon, Senior United States Circuit Judge
for the Ninth Circuit, sitting by designation.

                              3
Office of New Jersey Attorney General
P.O. Box 112
Richard J. Hughes Justice Complex
Trenton, NJ 08625
 Attorneys for Appellants in No. 04-4426 and Appellees in
 Nos. 03-3823 and 04-4493

Shavar D. Jeffries (Argued)
Seton Hall Law School
833 McCarter Highway
Newark, NJ 07102
 Attorney for Appellants in No. 04-4493 and Appellees in
 No. 04-4426

Gerald J. Pappert
Calvin R. Koons
John O.J. Shellenberger
John G. Knorr, III
Office of Attorney General of Pennsylvania
15th Floor - Strawberry Square
Harrisburg, PA 17120
 Attorneys for Amicus Curiae
 Commonwealth of Pennsylvania
 Amicus Appellant in No. 04-4426 and Amicus Appellee in
 Nos. 03-3823 and 04-4493

Aaron Christopher Wheeler
James S. Pavlichko
Derrick Dale Fontroy
Theodore B. Savage
Graterford SCI

                             4
P.O. Box 244
Graterford, PA 19426
 Pro Se Amici Appellees in Nos. 03-3823 and 04-4426

Edward L. Barocas
American Civil Liberties Union of New Jersey Foundation
P.O. Box 750
Newark, NJ 07101
 Attorney for ACLU NJ and Association of Criminal Defense
 Lawyers
 Amici Appellants in No. 04-4426 and Amici Appellees in
 Nos. 03-3823 and 04-4493




                 OPINION OF THE COURT




STAPLETON, Circuit Judge:

      We have before us two cases that have been consolidated
on appeal. 1 While the District Courts in these cases both
addressed the constitutionality of a New Jersey regulation


       1
        A third appeal that was originally consolidated, Taylor
v. Oney, No. 04-2062, has been severed and is being resolved
in a not precedential opinion.

                              5
governing the processing of incoming inmate legal mail, they
reached conflicting conclusions. These consolidated appeals
present two principal issues. First, do state prisoners have an
interest protected by the First Amendment in being present when
their incoming legal mail is opened? We conclude that our prior
case law establishes that they do. Second, may New Jersey open
prisoners’ legal mail outside of the prisoners’ presence pursuant
to a state policy intended to protect the safety and security of its
prisons by reducing the risk of anthrax contamination? We
conclude that New Jersey has not shown that its legal mail
policy is reasonably related to its interest in protecting the safety
and security of its prisons. Accordingly, New Jersey’s legal
mail policy does not withstand constitutional scrutiny. We will
affirm the grant of injunctive relief in Allah and reverse the
District Court’s summary judgment for the defendants in Jones.2

                                 I.
                                 A.

       Prior to October 19, 2001, New Jersey regulations
governing the Department of Corrections required that
“[i]ncoming legal correspondence be opened and inspected in
front of the inmate to whom it is addressed.” See 33 N.J. Reg.
4033(a) (Oct. 23, 2001).


       2
        Plaintiff Jones appeals from the District Court’s
resolution of a number of other issues. We agree with its
resolution of those issues and will affirm its judgment with
respect to them for essentially the reasons articulated in the
opinion of the District Court.

                                 6
       On September 11, 2001, in response to the terrorist
attacks on the World Trade Center and Pentagon and associated
disruptions, the Acting Governor of New Jersey, Donald
DiFrancesco, declared a state of emergency in New Jersey. In
that declaration, Executive Order No. 131-2001, Governor
DiFrancesco directed

       that the heads of any agency or instrumentality of
       the State government with authority to promulgate
       rules may, for the duration of the Executive
       Order, subject to my prior approval and in
       consultation with the State director of Emergency
       Management, waive, suspend or modify any
       existing rule the enforcement of which would be
       detrimental to the public welfare during this
       emergency, notwithstanding the provisions of the
       Administrative Procedure Act or any law to the
       contrary.

Executive Order No. 131-2001 (Sept. 11, 2001) (emphasis
added).

       In September and October 2001, one or more individuals
mailed a string of letters containing anthrax through the postal
system. At least four letters containing anthrax were processed
in the Hamilton, N.J. mail processing center. In all, five people
died and thirteen others were sickened by the mailings. In New
Jersey, there were no fatalities, but there were five confirmed
and two suspected infections.

       In response to these anthrax mailings, the Acting

                               7
Commissioner of the New Jersey Department of Corrections,
acting under the authority provided by the statewide declaration
of emergency, issued an amendment to New Jersey’s legal mail
policy that suspended the regulatory requirement that legal mail
be opened in the addressee prisoner’s presence. The statement
accompanying the amendment reads, in pertinent part:

       N.J.A.C. 10A:18-3.4(b) requires that incoming
       legal correspondence be opened and inspected in
       front of the inmate to whom it is addressed.
       Suspension of N.J.A.C. 10A:18-3.4(b) is
       necessary to protect the health, safety and welfare
       of the people and to aid in the prevention of loss
       to and destruction of property . . . .

              This special adopted amendment is
       necessary in order to inhibit the possible spread of
       contamination should a toxic biological substance
       be introduced by way of incoming legal
       correspondence addressed to an inmate who is
       incarcerated at a facility of the Department of
       Corrections. The Department is establishing
       remote areas at each facility for the processing of
       all incoming correspondence by trained staff
       members. Inmates shall not be present or
       involved in the processing or opening of any
       incoming correspondence.

33 N.J. Reg. 4033(a) (Oct. 23, 2001). The regulation now reads,
in pertinent part:


                                8
      Inspection of incoming legal correspondence

            (a) Incoming legal correspondence shall be
      opened and inspected for contraband only.

             (b) Incoming legal correspondence shall
      not be read or copied. The content of the
      envelope may be removed and shaken loose to
      ensure that no contraband is included. After the
      envelope has been inspected the correspondence
      shall be given to the inmate.

N.J. Admin. Code § 10A:18-3.4.

       The Assistant Commissioner of the Department of
Corrections issued a memo to all Corrections administrators
providing guidelines for the handling of legal mail. That memo
specifies:

      1.     A Correctional Officer shall open all
             incoming legal correspondences in the
             mailroom.

      2.     The officer shall log the information in
             accordance with current practices.

      3.     The incoming legal correspondence shall
             be opened and inspected for contraband .
             . . . The contents shall not be read or
             censored by the officer.


                              9
       4.     After the envelope has been inspected, the
              officer shall seal the envelope with tamper
              proof evidence tape. . . .

                              ***
       5.     After the inspection has been completed
              the correspondence shall be delivered to
              the inmate.

Memorandum from Jeffrey J. Burns, Assistant Comm’r, N.J.
Dep’t of Corrections, to All Administrators (Oct. 19, 2001);
App. Brown at Ra92-93.

       The amendment indicates that the suspension of former
§ 10A:18-3.4(b) will remain in effect until the end of the state
of emergency declared on September 11, 2001 in Executive
Order No. 131-2001. To date, the state of emergency remains
in force and the suspension of former § 10A:18-3.4(b) remains
in effect.

                              B.

       The plaintiffs in Allah 3 and the plaintiff in Jones are
inmates in the New Jersey correctional system whose legal mail
has been opened outside their presence pursuant to New Jersey’s
revised legal mail policy. Both sets of plaintiffs filed suit in



       3
         Jamaal W. Allah, Kevin Jackson, and Lennie Kirkland
(“the Allah plaintiffs”).

                              10
New Jersey District Courts against state correctional officials4
asserting, inter alia, that the legal mail policy violates their First
Amendment right of free speech. They sought injunctive and
monetary relief.

       In Allah, on cross-motions for judgment on the pleadings,
the District Court ruled that the legal mail policy violated the
prisoners’ constitutional right to be present when their legal mail
is opened.5 It accordingly enjoined the state officials from
enforcing the challenged policy.           However, citing the
uncertainty necessarily involved in assessing the risk of anthrax


       4
        The defendants in Allah are Devon Brown, the
Commissioner of the New Jersey Department of Corrections,
Terrance Moore, the now former Administrator of East Jersey
State Prison (“EJSP”), Roy Hendricks, the now former
Administrator of New Jersey State Prison (“NJSP”), Robert
Shabbick, a corrections sergeant at EJSP, and Wayne
Sanderson, a corrections sergeant at NJSP. The defendants in
Jones are Roy Hendricks, Steven Sootkoos, Associate
Administrator of NJSP, and Matthew Brown, an Investigator
with the Special Investigations Division at NJSP.
       5
         The District Court in Allah appears to have effectively
converted the cross-motions for judgment on the pleadings into
cross-motions for summary judgment. Neither party objects to
this treatment on appeal and we assume it not to have been an
abuse of discretion. See Rubert-Torres v. Hospital San Pablo,
Inc., 205 F.3d 472, 475-76 (1st Cir. 2000); 5C Wright & Miller,
Federal Practice & Procedure § 1371 at 275.

                                 11
contamination at the time of the policy’s adoption, the Court
granted the defendants’ motion to dismiss the plaintiffs’ claims
for monetary damages on the basis of qualified immunity.

       In Jones, by contrast, the District Court granted summary
judgment to the Defendants on all of Jones’ claims. In
particular, the District Court concluded that New Jersey’s legal
mail policy is a valid exercise of administrative discretion.

        Before us now are the Allah defendants’ appeal of the
District Court’s grant of injunctive relief, the Allah plaintiffs’
cross-appeal of the dismissal on qualified immunity grounds of
their claim for monetary damages, and plaintiff Jones’ appeal of
the District Court’s grant of summary judgment to the
defendants. We have jurisdiction over the grant of injunctive
relief in Allah pursuant to 28 U.S.C. § 1292(a) and pendent
appellate jurisdiction over the plaintiffs’ cross-appeal because
the facts regarding the merits of the injunction order are
inextricably intertwined with those concerning qualified
immunity. See E.I. DuPont de Nemours & Co. v. Rhone
Paulenc Fiber & Resin Intermediates, S.A.S., 269 F.3d 187, 203
(3d Cir. 2001). The District Court’s grant of summary judgment
in Jones is a final order over which we exercise jurisdiction
pursuant to 28 U.S.C. § 1291.

                               II.

       The Supreme Court’s decision in Turner v. Safley, 482
U.S. 78, 84 (1987), governs our review of New Jersey’s legal
mail policy. See Beard v. Banks, 126 S.Ct. 2572, 2577 (2006).
The Turner Court emphasized that “federal courts must take

                               12
cognizance of the valid constitutional claims of prison inmates.”
482 U.S. at 84. However, the Court also recognized that prison
administration is “an inordinately difficult undertaking,” aspects
of which are “peculiarly within the province of the legislative
and executive branches of government.” Id. at 85. In light of
these principles, the Court held that a prison regulation that
impinges on the constitutional rights of prisoners is nonetheless
valid, so long as the regulation “is reasonably related to
legitimate penological interests.” Id. at 89. The Turner analysis
presupposes “that the plaintiff inmate has demonstrated that a
constitutionally protected interest is at stake.” Dehart v. Horn,
227 F.3d 47, 51 (3d Cir. 2000) (en banc). Accordingly, in the
instant case, our threshold task is to determine whether the New
Jersey legal mail policy impinges on inmates’ constitutional
rights at all. If it does, we must then consider the policy’s
relationship to legitimate penological interests.

                               A.

        The First Amendment, as incorporated in the Fourteenth,
prohibits states from “abridging the freedom of speech.” U.S.
Const. Amend. I. We held in Bieregu that state prisoners, by
virtue of their incarceration, “do not forfeit their First
Amendment right to use of the mails,” 59 F.3d at 1452, and that
a “pattern and practice of opening properly marked incoming
[legal] mail outside an inmate’s presence infringes
communication protected by the right to free speech.” 59 F.3d
at 1452. We stressed that a pattern and practice of opening
properly marked court mail is particularly troubling because it
“chills protected expression and may inhibit the inmate’s ability
to speak, protest, and complain openly, directly, and without

                               13
reservation with the court.” Id.

        We reaffirm that holding of Bieregu today.6 A state
pattern and practice, or, as is the case here, explicit policy, of
opening legal mail outside the presence of the addressee inmate
interferes with protected communications, strips those protected
communications of their confidentiality, and accordingly
impinges upon the inmate’s right to freedom of speech. The
practice deprives the expression of confidentiality and chills the
inmates’ protected expression, regardless of the state’s good-
faith protestations that it does not, and will not, read the content
of the communications. This is so because “the only way to
ensure that mail is not read when opened . . . is to require that it
be done in the presence of the inmate to whom it is addressed.”
Id. at 1456 (citing Wolff v. McDonnell, 418 U.S. 539, 576-77
(1974)).

    We reject the argument of amicus curiae, the
Commonwealth of Pennsylvania, that the Supreme Court’s


       6
        In Bieregu, we also ruled that a pattern and practice of
opening legal mail outside the addressee prisoner’s presence
impinges on the inmate’s right to court access under the First
Amendment right to petition clause and the Fourteenth
Amendment due process clause, independent of whether the
prisoner can show “actual injury” to his or her access to the
courts. 59 F.3d at 1455. However, as we later recognized in
Oliver, this alternative holding of Bieregu was subsequently
abrogated by the Supreme Court’s decision in Lewis v. Casey,
518 U.S. 343 (1996). Oliver, 118 F.3d at 178.

                                14
decision in Lewis v. Casey, 518 U.S. 343 (1996), and our
subsequent decision in Oliver v. Fauver, 118 F.3d 175 (3d Cir.
1997), require that the plaintiffs prove some injury-in-fact
beyond the infringement of constitutionally protected speech.
The Supreme Court in Casey ruled that in order to press a claim
for interference with the right to court access, a prisoner plaintiff
must allege that he or she has been actually injured in his or her
access to the courts, i.e., that he or she has been hindered in an
effort to pursue a nonfrivolous legal claim. 518 U.S. at 349-53.
Allegations that the state has not provided adequate
preconditions to effectuate the right of access to the court, such
as law libraries or legal services, are insufficient. Rather, the
inmate must show that his or her exercise of the right at issue,
the right of accessing the courts to secure judicial relief, has
been infringed in some consequential way. Id.

        Following Casey, we ruled in Oliver v. Fauver, 118 F.3d
175 (3d Cir. 1997), that a prisoner could not support a claim for
denial of court access stemming from interference with legal
mail without producing evidence of actual injury to his access
to the courts. In so doing, we made clear that to the extent we
had ruled otherwise in Bieregu, that holding of Bieregu was
“effectively overruled.” Id. at 178. While we did not expressly
limit our statement that Bieregu was “effectively overruled” to
exclude its First Amendment holding, nothing in the reasoning
of Casey or Oliver suggests that a prisoner alleging that officials
have opened his legal mail outside of his presence and thereby
violated his First Amendment rights need allege any
consequential injury stemming from that violation, aside from
the violation itself. Unlike the provision of legal libraries or
legal services, which are not constitutional “ends in themselves,

                                 15
but only the means for ensuring ‘a reasonably adequate
opportunity to present claimed violations of fundamental
constitutional rights to the courts,’” Casey, 518 U.S. at 351,
protection of an inmate’s freedom to engage in protected
communications is a constitutional end in itself.

                               B.

        The fact that the legal mail policy burdens prisoners’
First Amendment rights does not, however, tell us whether the
policy is constitutional. Prisoners necessarily sacrifice many of
the constitutional rights available to non-incarcerated citizens.
See Banks, 126 S.Ct. at 2577-78. (“[I]mprisonment does not
automatically deprive a prisoner of certain constitutional
protections, including those of the First Amendment. But at the
same time the Constitution sometimes permits greater restriction
of such rights in a prison than it would allow elsewhere.”)
(citations omitted); Overton v. Bazzetta, 539 U.S. 126, 131
(2003) (“Many of the liberties and privileges enjoyed by other
citizens must be surrendered by the prisoner.”). The relevant
question, as articulated by the Supreme Court in Turner, is
whether the legal mail policy is “reasonably related to legitimate
penological interests.” 482 U.S. at 89.

        Under the teachings of Turner, there are two steps to take
in determining whether a prison regulation is “reasonably related
to legitimate penological interests.” Id. “First, there must be a
‘valid, rational connection’ between the prison regulation and
the legitimate governmental interest put forward to justify it.
Thus, a regulation cannot be sustained where the logical
connection between the regulation and the asserted goal is so

                               16
remote as to render the policy arbitrary or irrational” or to
demonstrate that it “represents an exaggerated response to [the
asserted] objectives.” Turner, 482 U.S. at 89-90 (citation
omitted), 97-98. Thus, “a rational nexus between a regulation
and a legitimate penological interest is essential to its validity.”
Dehart v. Horn, 227 F.3d 47, 53 (3d Cir. 2000) (en banc).

        On the other hand, “not all prison regulations that are
rationally related to [a legitimate state] interest pass Turner’s
‘overall reasonableness’ standard.” Id. If such a rational
relationship is found to exist, that “determination commences
rather than concludes our inquiry.” Id. The other three Turner
factors to be considered are (1) “whether inmates retain
alternative means of exercising the circumscribed right,” (2) the
burden on prison resources that would be imposed by
accommodating the right, and (3) “whether there are alternatives
to the regulation that ‘fully accommodate[] the prisoners’ rights
at de minimis cost to valid penological interests.” Id. at 51
(quoting from Waterman v. Farmer, 183 F.3d 208, 213 (3d Cir.
1999)).

       “Of course, the Turner analysis is appropriate only in
cases where a prison policy is impinging on inmates’
constitutional rights” and Turner’s two-step assessment of
reasonableness must be made in light of “the inmate’s interest
in engaging in constitutionally protected activity.” Dehart, 227
F.3d at 51.

       While the ultimate burden of persuasion with regard to
the reasonableness of a       regulation resides with those
challenging it, Overton v. Bazzetta, 539 U.S. 126, 132 (2003),

                                17
the defendant administrators must “put forward” the legitimate
governmental interest alleged to justify the regulation, Turner,
482 U.S. at 89, and “‘demonstrate’ that the policy drafters
‘could rationally have seen a connection’ between the policy and
[that interest].” Wolf v. Ashcroft, 297 F.3d 305, 308 (3d Cir.
2002). “[T]his burden, though slight, must ‘amount [] to more
than a conclusory assertion.’” Id. (quoting Waterman, 183 F.3d
at 218 n.9). As we explained in Wolf, satisfying this burden may
or may not require evidence; where the connection is obvious,
common sense may suffice:

       [W]hile the connection may be a matter of
       common sense in certain instances, such that a
       ruling on this issue based only on the pleadings
       may be appropriate, there may be situations in
       which the connection is not so apparent and does
       require factual development.       Whether the
       requisite connection may be found solely on the
       basis of “common sense” will depend on the
       nature of the right, the nature of the interest
       asserted, the nature of the prohibition, and the
       obviousness of its connection to the proffered
       interest.   The showing required will vary
       depending on how close the court perceives the
       connection to be.

Wolf, 297 F.3d at 308-09.

       When neither common sense nor evidence demonstrates
a reasonable causal nexus – “where the logical connection
between the regulation and the asserted goal is so remote as to

                              18
render the policy arbitrary or irrational” or to demonstrate that
the regulation “represents an exaggerate[d] response” –
summary judgment for the defendant administrator is
inappropriate and the plaintiff inmate may be entitled to
injunctive relief. See, e.g., Ramirez v. Pugh, 379 F.3d 122, 130
(3d Cir. 2004) (“In the absence of a factual record, . . . we
cannot ignore the possibility that the proscription rationally
applies to such a small percentage of the . . . inmate population
that its connection to the government’s rehabilitative interest ‘is
so remote as to render [it] arbitrary or irrational.’”) (quoting
Turner, 482 U.S. at 89-90); Wolf v. Ashcroft, 297 F.3d 305, 309
(3d Cir. 2002); Bieregu v. Reno, 59 F.3d 1445, 1458 (3d Cir.
1995); Mann v. Reynolds, 46 F.3d 1055, 1060-61 (10th Cir.
1995).

        Our decision in Bieregu is instructive on this point.
While the defendant administrators in Bieregu argued only that
their opening of legal mail in the absence of the inmate
addressee did not violate the Constitution, the Court, in the
course of reversing summary judgment in favor of those
defendants, necessarily addressed whether the legal mail policy
was enforceable under Turner. Bieregu, 59 F.3d at 1456-58.
The Court found that no reasonable connection had been
demonstrated between their conduct and institutional security
“on the supposition that correspondence may contain plans for
escape or incite violence.” Id. at 1457. We recognized that the
state had a “substantial interest” in institutional security but
concluded that, on the state of the record, “to suggest that
repeatedly opening incoming court mail outside the presence of
an inmate advances a legitimate interest in institutional security
. . . would overreach.” Id. In other words, while it was true that

                                19
legal mail conceivably might contain such plans and the opening
of it might conceivably thwart those plans, the risk allegedly
addressed was too insubstantial to justify incursion on First
Amendment interests.

        There is no dispute here about the existence of the
regulation and the defendants’ conduct implementing it. As we
have explained, based upon that regulation and conduct,
plaintiffs have established that the defendants have infringed
upon their First Amendment protected interest in being present
when legal mail addressed to them is opened. It follows that
defendants’ practice cannot pass constitutional muster unless it
can satisfy the Turner tests.

       In order to satisfy their burden at the first Turner step, the
defendant administrators have identified as the relevant
penological interest their interest in protecting the safety and
security of New Jersey’s prisons. The defendants put forth only
one means by which the policy might serve that interest:
through a reduction in the risk of anthrax contamination in
prisons. In order to establish that there is a non-negligible risk
of anthrax contamination that the policy could be thought to
reduce, the defendants rely solely on the generally known facts
regarding the events of September 11, 2001, and the letters
posted in October of 2001 containing anthrax spores.7 They


       7
        Both sides in both cases agree upon the facts here earlier
reported concerning the anthrax letters. See page ___, infra. A
series of such letters was posted in October of 2001, four of
which were processed by the mail processing center in

                                 20
have tendered no other evidence for the purpose of establishing
the existence of a significant risk of anthrax contamination and
thus a reasonable connection between these practices and the
safety and security of their prisons.

       The District Court in Allah, viewing the question
presented under Turner’s first step from the perspective of the
date of its decision in October of 2004, found “that there is no
reasonable connection between the Legal Mail Policy and the
Defendants’ asserted interest.” App. Brown at Ra123. It
explained:

       Defendants have offered no evidence that there is
       an elevated risk of anthrax contamination in
       prisons resulting from the events of September
       11, 2001, which prompted DiFrancesco’s
       executive order. Nor have Defendants cited any
       evidence of attempts to expose prisoners to
       anthrax in the three years since the incident in the
       Hamilton postal facility.       Since that time,
       investigations conducted by the Center for
       Disease Control and Prevention (the “CDC”) have
       found that the actual risk of anthrax
       contamination in this country is quite small, and


Hamilton, NJ. Five people died. There were five confirmed
infections in New Jersey. No evidence has been tendered,
however, regarding the addressees of those letters, the results of
the ensuing investigation, or any other information regarding
them.

                               21
       guidelines set forth by the CDC and the State of
       New Jersey provide a sensible approach to
       dealing with suspicious packages.

Id.

       The District Court in Jones, viewing the question
presented under Turner’s first step from the time perspective of
the adoption of the regulation, found “that the revised mail
policy has a rational relation to its stated and legitimate purpose
of maintaining prison safety and security.” Id. at Ra111. It
explained:

       After September 11, 2001, prison officials were
       faced with the very real and dangerous prospect
       of receiving prisoner mail containing Anthrax. In
       such a close-quartered environment as a prison,
       the potential danger to inmates and staff alike is
       obvious.     If a prisoner were to open a
       contaminated envelope in his cell, not only would
       the prisoner and mail carrier likely be exposed to
       the contaminant, the prisoner’s cell mate and
       neighbors, as well as his entire prison wing,
       would be at risk of exposure. The revised mail
       policy seeks to lessen the risk of Anthrax
       exposure to prisoners and prison staff by opening
       incoming mail in a secure environment in which
       any contamination would be immediately
       contained.

Id.

                                22
        We believe that a prison administrator compelled to act
immediately after September 11th and October of 2001 might
reasonably have concluded that the risk of an anthrax terrorism
attack on a prison was sufficiently unquantifiable to justify a
temporary, emergency measure involving the opening of a
prisoner’s legal mail in his absence. We conclude, however,
that we should review the injunction entered by the District
Court in Allah based on the state of the record in that case at the
time it was entered more than three years after September 11th.
See United States v. Carolene Products Co., 304 U.S. 144, 153
(1938) (“[T]he constitutionality of a statute predicated upon the
existence of a particular state of facts may be challenged by
showing to the court that those facts have ceased to exist.”);
Schumacher v. Nix, 965 F.2d 1262, 1271 (3d Cir. 1992).
Reviewing it from that perspective we, too, find that there is “no
reasonable connection between the Legal Mail Policy and the
defendants’ asserted interest.” 8 App. Brown at RA123.


       8
        While they have played no role in our decision, extra-
record materials to which plaintiffs and amici refer us, some of
which are dated after the Allah Court’s October 2004
injunction, support its soundness today. Since October of 2004,
the Postal Service has implemented a series of measures to
reduce the risk of anthrax contamination through the mail.
These measures have included the installation of biohazard
detection systems in all nine processing centers in New Jersey.
The Centers for Disease Control and Prevention estimates an
individual’s current risk of contracting anthrax to be roughly 1
in 300 million in an average year. See Ctrs. for Disease Control
& Prevention, Anthrax Q & A: Risk,

                                23
       At every step in the suggested logical progression from
the events of September and October 2001 to the need for
protection of prisons against anthrax contamination in October
2004, common sense would not assist the responsible
administrator. He or she, without additional information, could
not reasonably take each logical step in deciding whether to
continue to tread upon inmates’ First Amendment rights. For
example, it is conceivable, we suppose, that there may have
been a connection between the events of September 11th and the
anthrax letters of October 2001, but common sense does not
alone afford a reasonable basis for believing that there was, and
a prison administrator in the absence of substantial evidence to
so suggest could not three years later reasonably rely upon such
a connection in deciding whether to continue the amended legal
mail policy until the end of the state of emergency. The same
can be said for the alleged connection between a limited but
undisclosed number of anthrax letters posted in October of 2001
by an unknown person or persons to undisclosed places and the
existence three years later of a person motivated and with the
means to attack a prison with anthrax. Finally, even if an
administrator could reasonably conclude in October of 2004 that


http://www.bt.cdc.gov/agent/anthrax/faq/risk.asp (last visited
July 31, 2006). By way of comparison, one is two times less
likely to contract anthrax in a given year than to win the grand
prize in the Multi-State Lottery Association’s Powerball game.
See The Multi-State Lottery Association, Powerball–Prizes and
Odds, http://www.powerball.com/powerball/pb_prizes.asp
(reporting odds of grand prize to be roughly 1 in 146 million)
(last visited July 31, 2006).

                               24
there was a non-de minimis risk of an anthrax attack on New
Jersey prisons, common sense, without more, would not afford
a reasonable basis for believing that that risk would be
materially reduced by opening letters from lawyers and courts.

         In ruling that the state had failed to demonstrate a “valid,
rational connection” between the legal mail policy and a
legitimate governmental interest, the Allah Court did not second
guess New Jersey prison administrators’ judgment with respect
to administrative burdens or inmate behavior, or any other
matter within their special expertise. The problem it addressed
was one involving the assessment of the risk of a terrorist
anthrax attack on New Jersey’s prisons in the Fall of 2004. Yes,
such an attack is conceivable, but that Court would have been
neglectful of its responsibility if it had sanctioned the
elimination of the constitutional right we recognized in Bieregu
in the absence of some rational basis for believing there was a
non-negligible risk of such an attack. Stated otherwise, while
the health and safety of inmates and staff are legitimate
penological interests, if there is no information suggesting a
significant risk of an anthrax attack, there is no reasonable
connection between those interests and the policy of opening
legal mail in the absence of the inmate addressee. Accordingly,
we hold that the defendants have not met their burden under the
first step of Turner and proceed no further in our review of the
injunction in the Allah Court.

       Although only two, rather than three, materially
uneventful years had passed at the time of the Jones Court’s
decision to refuse injunctive relief, our analysis of the issues
presented by Jones’ appeal parallels the analysis we have just

                                 25
conducted in Allah and reaches the same conclusion. The
defendants in Jones, like those in Allah, have failed to meet their
burden under the first step of Turner. Accordingly, we will
reverse the judgment of the Jones Court on Jones’ claim for
injunctive relief and will remand with instructions to enter an
injunction consistent with the Allah injunction.

                               III.

        State officials are entitled to qualified immunity from
damage liability if their conduct “does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). “This inquiry . . . must be undertaken
in light of the specific context of the case.” Saucier v. Katz, 533
U.S. 194, 201 (2001).

        Bieregu established as a general matter that prisoners
have a First Amendment protected interest in being present
when their legal mail is opened. 59 F.3d at 1458. But as the
Supreme Court emphasized in Saucier, “that is not enough.”
533 U.S. at 202. “The contours of the right must be sufficiently
clear that a reasonable official would understand that what he is
doing violates that right.” Id. (quoting Anderson v. Creighton,
483 U.S. 635, 640 (1987)). For two reasons, we believe it
cannot be said with confidence that reasonable prison
administrators in the defendants’ position would have realized
that they were violating the teachings of Bieregu.

      First, as we have explained, prison administrators in
defendants’ position would not have been violating inmates’

                                26
rights if they reasonably believed they were acting in the interest
of inmate and staff health and safety. As we have further
explained, the Turner test is highly fact sensitive and, at the time
the challenged regulation was adopted, there was no guidance in
our case law regarding the application of Bieregu and Turner in
the context of the special circumstances encountered in the Fall
of 2001. Without being able to determine whether the October
2001 series of anthrax letters had ended or was on-going, a
reasonable administrator might well have understood the legal
mail policy to be consistent with those cases.

       Second, even at a later point in time when it became
apparent that there was no significant, on-going risk from
anthrax attack, we believe a reasonable prison administrator
evaluating whether the legal mail policy should be continued
might well have concluded that Bieregu was no longer sound
law. As previously noted, at that point we had declared without
reservation in Oliver v. Fauver, 118 F.3d 175, 178 (3d Cir.
1997), that the Supreme Court had “effectively overruled
Bieregu.” While we here hold that this was not true with respect
to the First Amendment aspects of Bieregu, in the absence of
authority suggesting otherwise, we cannot find a prison
administrator to have been unreasonable in taking our statement
in Oliver at face value.

       Accordingly, we will affirm the ruling of both the Allah
Court and the Jones Court that the defendants are entitled to
qualified immunity with respect to plaintiffs’ damage claims.

                                IV.


                                27
        The judgment of the District Court in Allah will be
affirmed. The judgment of the District Court in Jones will be
affirmed in all respects other than the denial of relief on
plaintiffs’ claim for an injunction. Its denial of injunctive relief
will be reversed and this matter will be remanded with
instructions to enter an injunction consistent with that entered in
Allah.




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