American Civil Liberties Union Fund of Michigan v. Livingston County

Detroit, MI - Sixth Circuit rules that prisoners have the right to receive legal mail unopened



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)

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(“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.”

1The 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

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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 preliminaryinjunction

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 directservices

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-attorneyclient-

privilege communication can be kept confidential. Indeed, pursuant to the Jail’s postcardonly

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 postcardonly

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 prelitigation

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

2The 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.

3At 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))).

4Because 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

5The 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.

For the foregoing reasons, we AFFIRM the district court’s preliminary injunction.