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HOUSES FOR RENT
111 West Main
Street
Canajoharie NY
Exit 29 Thruway
Two Story Brick
Townhouse
With Off street
parking and
Large backyard
block away from
World Famous
ARKELL Museum
Perfect live/work,
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Gateway to
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Perry
917-747-8580
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COMMERCIAL REAL ESTATE FOR RENT
NOHO DISTRICT
Manufacturing Space for Lease
Ideal for service, industrial.
No retail or office uses.
Only uses permitted under
zoning district M1-5B
636 Broadway 7972 SF,
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$239,160 annual basis ($30/sqft)
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➤ PRIVACY, from p.23
bert Charles Dickey of McGuire Woods
LLP, a Washington law firm, to argue
the appeal on the inmate’s behalf.
“The Supreme Court’s guidance
is less than illuminating,”
wrote Judge Richardson, pointing
out that in the course of rejecting
privacy claims in particular cases,
the Court had “assumed” for
the sake of argument that such a
right exists, but found that it did
not apply in favor of the plaintiffs
in those cases. Turning to Fourth
Circuit precedents, Richardson
found that previous Fourth Circuit
panels had recognized 14th
Amendment due process privacy
claims in various cases based on
a two-part test: whether the information
sought is entitled to privacy
protection, and whether a compelling
government interest in disclosure
outweighed the individual’s
privacy interest. As to the fi rst part
of the two-part test, relying on a
Supreme Court concurring opinion
in a Fourth Amendment case
about wiretapping, Richardson
wrote that the Fourth Circuit has
used a “reasonable expectation
of privacy” test. Most of the cases
where the Fourth Circuit has considered
the issue have been cases
involving government searches of
private property, not 14th Amendment
cases involving informational
privacy in other contexts.
Can an incarcerated person have
a reasonable expectation of privacy?
Richardson noted that the
Supreme Court has rejected that
idea in the context of searches of
a prisoner’s cell for contraband. In
a 1984 case, the Supreme Court
found that “any subjective expectation
of privacy that a prisoner might
have in his prison cell” was not one
that society would recognize as legitimate
or reasonable, and that
the Fourth Circuit had followed this
reasoning in its own decisions.
“As an inmate in a prison medical
center,” wrote Richardson, the inmate
“lacked a reasonable expectation
of privacy in his HIV status and
his compliance with his treatment
plan.” The inmate didn’t contend
that prison offi cials were not entitled
to know about his HIV status, but
he was arguing that other inmates
and correction offi cers were not entitled
to be privy that information,
which Richardson characterized as
“secondary disclosure.”
“But just as he lacks a reasonable
expectation of privacy in the initial
disclosure of his communicabledisease
diagnosis to the prison offi
cials,” wrote Richardson, “so too
does he lack a reasonable expectation
of privacy in the secondary
disclosure of his diagnosis. Where
an inmate lacks a reasonable expectation
of privacy, he lacks it for
all purposes. Whatever desire he
may have to keep that information
purely private is ‘incompatible’
with the needs of an institution,
and therefore not reasonable.”
Richardson then takes compares
information about HIV status
to information about exposure to
COVID-19, which is wildly inappropriate
because COVID-19 is spread
by casual contact and HIV is not.
“While HIV and its spread can be
controlled by medicine,” wrote Richardson,
“an inmate’s expectation
of privacy in his diagnosis is still
unreasonable during treatment because
there remains a risk of transmission
to prison workers and other
inmates. For example, a prisoner
might forgo taking the medicine and
thus become contagious again, just
as this inmate apparently did here.”
(Nowhere else in the opinion is there
any mention of the inmate having
actually become contagious.)
“No matter how much a prisoner
subjectively would like to keep that
information to himself,” wrote Richardson,
“we must ask whether that
expectation is one that society is
prepared to recognize as reasonable.
And any subjective expectation of
privacy in this information that the
inmate has is simply not reasonable.
Because we decide that this information
is not within the inmate’s reasonable
expectations of confi dentiality,
we need not go further to address
whether the doctor had a compelling
government interest in disclosing the
inmate’s HIV status that outweighed
his privacy interest.”
A disagreement among the Circuit
Courts of Appeals about a
constitutional question may provide
grounds for obtaining Supreme
Court review. In this case,
however, the inmate is represented
by a court-appointed lawyer for
the purpose of making his argument
to the Fourth Circuit. Would
a court-appointed lawyer then be
willing, on a pro bono (no-fee) basis,
to attempt to get the Supreme
Court to review this case? For now,
that’s an open question.
GayCityNews.com | June 17 - June 23, 2021 39
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