Kinoy v. Mitchell – Government Misconduct – CCR Docket 1989-1990

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 ‘s 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 overhear­ings. 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 dismissing 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 viol tion of the attorney-client privilege which occurred as a result of the illegal wiretapping.CCR filed an application for certiorari with the U.S. Supreme Court in an effort to have a hearing on the important issue of whether an attorney has the right lo sue for violation of the attorney-client privilege. In the spring of 1989 the Court denied an application for certiorari.

Michael Ratner, Rhonda Copelon with Henry Furst and CCR cooperating attorney Jeremiah S. Gutman