Skip navigation
× You have 2 more free articles available this month. Subscribe today.

Second Circuit: Prisoners Have the Right Not to Snitch

by Christopher Zoukis

The U.S. Court of Appeals for the Second Circuit has held that the First Amendment protects both a prisoner’s right not to snitch and his or her right not to provide false information to prison officials. The May 9, 2018 opinion established new precedent in the Second Circuit; even though the plaintiff lost the case on qualified immunity grounds, future prisoners who are similarly situated will likely prevail.

New York state prisoner Mark Burns was working in the commissary at the Coxsackie Correctional Facility when a can of spaghetti fell on his head. He suffered a scratch and bruises on his neck. He reported the incident to prison staff, resulting in the filing of an Inmate Injury Report that detailed the accident and his injuries.

The next day, Sergeant Noeh and Captain Shanley approached Burns and told him his wife had called the institution to report that Burns had been “cut” by a fellow prisoner. He denied any such altercation, and suggested that his wife had not called the prison. He also told the guards he was injured by a falling can, the injury was witnessed by one of the commissary guards and an Inmate Injury Report had been filed.

Noeh and Shanley were on a mission, though. They wanted Burns, whom they believed knew “what goes on,” to act as a snitch. They offered him a deal: rat out his fellow prisoners or be placed in Involuntary Protective Custody (IPC). Burns said no and, true to their word, the two guards recommended that Burns be sent to IPC.

After a hearing, Burns was placed in Involuntary Protective Custody. During the six months he spent in segregation, the guards continually offered to let him out if he would become their snitch. They also suggested that they would release him if he provided false information in support of their attempt to set up a fellow guard. Otherwise, they said, he “could rot” in IPC. Burns steadfastly refused to snitch.

After being released from IPC upon his transfer to another prison, Burns filed suit in federal court. He said he had faced retaliation for exercising his First Amendment right not to speak; e.g., not to snitch or provide false information. The defendants moved for summary judgment, which the district court granted in February 2015 on qualified immunity grounds because no court had previously held prisoners have a right to refuse to serve as an informant.

In upholding the district court’s order, the Second Circuit agreed that such precedent did not yet exist, which justified qualified immunity. However, the appellate court spent more than 30 pages creating the precedent for future situations like the one faced by Burns, ultimately holding that henceforth, prisoners in the Second Circuit have a First Amendment right not to snitch. The Court of Appeals could find no legitimate penological interest served by forcing prisoners to act as informants.

The new right established by the Court includes a prisoner’s right to refuse to provide false information to prison authorities and the right to refuse to act as a snitch and provide truthful information. The Second Circuit traced the origin of the right not to snitch back to the American Revolution.

“[O]utrage regarding similar investigative methods of the British was a major cause of the Revolution, and guided the Framers in crafting the Bill of Rights,” the appellate court wrote. “As Justice Gorsuch recently recounted, such practices ignited the fury of the colonists largely because they forced individuals to serve as ‘snitches and snoops’ for the Crown.”

The Court of Appeals concluded: “Here, by refusing to serve as a snitch, Burns sought to exercise a right akin to the right, enjoyed by members of the public at large, to decline to participate in police questioning. In both cases, a government officer seeks information from an individual who is not under suspicion. In the case of the unconfined individual, she may walk away. But in the case of the prisoner, she cannot walk away, as she is physically incarcerated within the institution. Thus her only recourse is in speech: she may decline to answer. Accordingly, the speech that we recognize today as protected by the First Amendment fits well within a broader frame of constitutional protection from the government’s ability to compel participation in investigative measures.”

Burns, who had filed his suit pro se, was represented on appeal by appointed counsel, attorney Noam Biale with Sher Tremonte LLP. See: Burns v. Martuscello, 890 F.3d 77 (2d Cir. 2018). 


Additional sources:,


As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

Burns v. Martuscello