In a March 25, 2015, opinion, the Fourth Circuit Court of Appeals held that cell phone service providers and owners of cell towers in the area around a South Carolina prison were not liable for the attempted murder of a prison guard ordered by a prisoner using a smuggled cell phone.

Robert Johnson, a captain at the Lee Correctional Institute in Lee County, South Carolina, was shot six times in his home. His wife witnessed the attack. The U.S. Attorney found that an unnamed prisoner used a cell phone to order the shooter, Sean Echols, to kill Johnson in retaliation for Johnson's seizure of cell phones and other contraband from prisoners. Echols pleaded guilty to federal conspiracy to use interstate facilities in murder-for hire.

The Johnsons filed suit in state court under the novel theory that cell phone service providers and cell tower owners were aware that prisoners were using smuggled cell phones to access the towers and carriers and this created an unreasonable risk of harm to others. The case was removed to federal court. The district court dismissed the case, finding that it had jurisdiction and the claims were barred by express and conflict preemption, South Carolina law posed no duty on defendants to prevent prisoners from using smuggled cell phones, and the claims were implausible. The Johnsons appealed.

The Fourth Circuit held that the federal court had diversity jurisdiction because the non-diverse defendants were fraudulently joined. It also held that, whereas the Federal Communications Act, 47 U.S.C. § 332,333 did not completely preempt all state law claims; it expressly preempted the Johnsons' claims.

The claims were also barred by conflict preemption because to allow them would put state and federal law in conflict. "The FCC has repeatedly interpreted § 333 to prohibit any form of 'jamming' of wireless signals, even by prison officials.” Thus, the service providers and tower owners were also prohibited from jamming signals originating in prisons.

The complaint did not contain enough specific facts to render the claims plausible. The Johnsons could not even identify who used a cell phone to order the hit, when it was used and which service provider carried the signal. Therefore, the Fourth Circuit affirmed the dismissal of the complaint.

See: Johnson v. American Towers, _ F.3d _ (4th Cir. 2015), No. 13-1872.

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