Kinoy v. Mitchell – Government Misconduct – CCR Docket 1988-1989

The widespread use of illegal electronic surveil­lance in the name of national security is a central form of government misconduct. A rul­ing in the early stage of this case established the right to bring a civil action without having proof of wiretapping.

Filed on behalf of Arthur Kinoy, movement lawyer, law professor, and a CCR founder, and his daughter, Joanne Kinoy, the case originally involved the Kinoys’ right to know the details of 23 overhearings , 10 of which were character­ized as “foreign.” The government eventually admitted that the surveillance of Arthur Kinoy and his clients included at least 200 additional over hearings. Many of these overheard conver­sations involved clients seeking and receiving legal advice.

The Department of Justice filed a motion asking that the case be dismissed on the ground that all the defendants have qualified immu­nity. The district court entered a decision dis­ missing the Fourth Amendment claims on this basis but agreeing with plaintiffs that their Fifth and Sixth Amendment claims for inva­sion of the attorney-client privilege required discovery and should not be dismissed. The government then took an interlocutory appeal to the Second Circuit. In July 1988 that court reversed the district court and ruled, without legal precedent, that Kinoy had no Sixth Amendment right to sue for violation of the attorney­ client privilege which occurred as a result of the illegal wiretapping. The CCR is considering whether or not to appeal to the Supreme Court.

Michael Ratner, with Henry Furst ; CCR cooperating attorneys Rhonda Copelan and Jeremiah Gutman