Security concept: Cctv Camera on digital background

The U.S. Court of Appeals for the Second Circuit on Monday revived a lawsuit that claimed cameras placed in a Staten Island jail conference rooms violates attorney-client privilege protected under a 1999 settlement agreement.

The panel of Circuit Judges Rosemary Pooler, Raymond Lohier Jr. and Susan Carney remanded the case back to U.S. District Judge George Daniels of the Southern District of New York. The panel found Daniels had failed to analyze properly the terms of the agreement as it relates to Sixth Amendment concerns over conduct that chills detainees’ communication with counsel.

The lawsuit stemmed from a decision by New York City officials to install cameras in conference rooms used by attorneys to talk with clients during the recent construction of a new court and detention facility in Staten Island.

Officials responded to the start of litigation over the cameras by looking for ways to mask the recording of a detainee in consultation with an attorney, including not recording audio. The plaintiffs in the underlying suit argued that the cameras represented a violation of an earlier settlement with the city over claims it wasn’t providing appropriate private space for these sensitive meetings.

The district court found in favor of the city, noting that the settlement agreement did not expressly exclude the use of cameras that used the city’s purported privacy fix. On appeal, the panel said while this was true, Daniels failed to engage in the proper balancing analysis in finding the settlement was not violated.

While the district court did engage in a form of the analysis, the panel found Daniels “misunderstood” important Sixth Amendment jurisprudence. Specifically, Daniels “erroneously concluded” that a detainee’s belief that the conversation might still be recorded didn’t constitute a recognizable burden on Constitutional protections. The district court did not appropriately consider the “chilling effect” the cameras presence has on detainees, the panel found.

“[T]he possibility that a pre-arraignment detainee could believe that the city is monitoring their communications and the consequent chilling effect of that belief must be considered in evaluating the alleged Sixth Amendment violation in this case,” the panel said, adding that the city’s insistence that it wasn’t monitoring the chats wasn’t necessarily enough to allay chilling concerns.

The plaintiffs in the suit were represented on appeal by White & Case associate Colin West. In a statement, West said he and his clients were pleased with the decision, which he said appropriately recognized the potential impediment the cameras represented.

The Legal Aid Society joined White & Case on the appeal and was actively involved in the issue, working with the city on a potential settlement of the issue through early 2016. In a statement, Tina Luongo, attorney-in-charge of the organization’s criminal practice, called the ruling a victory for due process.

“Our clients are entitled to meet with their attorneys in private—a fundamental part of the right to counsel,” she said. “We look forward to arguing the merits of this Sixth Amendment chilling effect on our client’s right to speak freely with counsel, and call on the city to terminate this practice on Staten Island and elsewhere in the interim.”

A spokesman for the city’s law department, Nicholas Paolucci, said in an email to the New York Law Journal, “We believe the current camera setup appropriately balances [Department of Correction]’s security concerns with detainees’ Sixth Amendment rights, and that the district court will adhere to its determination that the DOC’s use of the cameras complies with the law.“


State-of-the-Art Courthouse Opens on Staten Island

Legal Aid Sues to Remove Cameras in S.I. Courthouse

Judge Halts Continuous Video in Staten Island Courts