                           In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 02-4298
EDWIN C. WEST, et al.,
                                          Plaintiffs-Appellees,
                              v.

KURT SCHWEBKE, et al.,
                                    Defendants-Appellants.
                         ____________
          Appeal from the United States District Court
             for the Eastern District of Wisconsin.
            No. 99-C-0147—Lynn Adelman, Judge.
                         ____________
      ARGUED MAY 23, 2003—DECIDED JUNE 20, 2003
                    ____________


 Before EASTERBROOK, RIPPLE, and WILLIAMS, Circuit
Judges.
  EASTERBROOK, Circuit Judge. Like most other states,
Wisconsin holds some sex offenders past the ends of their
prison sentences. Those deemed “sexually violent per-
sons” are subject to civil commitment of indefinite dura-
tion under Wis. Stat. ch. 980. See Adams v. Bartow, No. 02-
3234 (7th Cir. June 3, 2003). Plaintiffs are among those
detained, or committed, under Chapter 980. They were
held in the Wisconsin Resource Center until June 2001,
when all but one were moved to the Sand Ridge Secure
Treatment Center. Individual treatment plans used at
the Resource Center contemplated the possibility that
misconduct would lead to what the state calls “therapeutic
2                                                No. 02-4298

seclusion”: placement in a cell that contains only a con-
crete platform (which serves as a bed), a toilet, and a
sink. Detainees in seclusion often were deprived of cloth-
ing and other amenities. Secluded detainees were al-
lowed out, in shackles, one hour a day on weekdays and
not at all on weekends (when staffing levels were lower).
When the staff thought that secluded detainees might
be ready for return to the general population, they were
allowed out two hours a day, but still kept in restraints.
One plaintiff was held in seclusion for 82 consecutive
days (and more than 100 days all told in 1998); all plain-
tiffs have been held in seclusion for at least 20 consecutive
days.
  In this suit under 42 U.S.C. §1983 the detainees con-
tend that “therapeutic seclusion” as practiced in the
Wisconsin Resource Center violated their rights under the
due process clause of the fourteenth amendment. See
Youngberg v. Romeo, 457 U.S. 307 (1982). Sand Ridge
has different policies, not challenged in this litigation; the
one plaintiff who remains at the Resource Center is be-
ing held for violation of probation and not as a civil de-
tainee, so the suit has become one for damages rather
than injunctive relief. In response to defendants’ motion
for summary judgment—a motion that sought the benefit
of qualified immunity, if not victory on the merits—the
detainees offered the affidavits of two respected psychia-
trists, one of whom (Kenneth Tardiff) had been chairman
of the American Psychiatric Association’s task force on
the appropriate uses of seclusion and restraint. These
experts concluded unequivocally that the duration over
which the Resource Center applied seclusion was medi-
cally inappropriate and universally condemned by the
psychiatric profession as a therapeutic tool. One of the
affiants went further and opined that any contrary view
could not represent an honest, professional judgment.
Defendants offered contrary affidavits from three experts
No. 02-4298                                               3

of their own, psychiatrists with enough fortitude to risk
being labeled dishonest and unprofessional. The district
court concluded that this dispute within the profes-
sion prevents summary judgment. See West v. Macht, 235
F. Supp. 2d 966 (E.D. Wis. 2002). The judge lopped off
some additional claims and granted summary judgment
to some defendants; we limit this opinion to the remain-
ing claims and parties. Defendants now pursue an interloc-
utory appeal, arguing that qualified immunity entitles
them to an immediate end to what is left of the litigation.
See Behrens v. Pelletier, 516 U.S. 299 (1996).
  Plaintiffs’ claims rest on the principle articulated in
Youngberg that “[p]ersons who have been involuntarily
committed are entitled to more considerate treatment
and conditions of confinement than criminals whose
conditions of confinement are designed to punish.” 457 U.S.
at 321-22. Although the Court rejected in Youngberg
an argument that the state must establish the “necessity”
of applying to detainees restraints or other forms of close
custody, it concluded that a state still must ensure that
considered judgment has been exercised. Detainees are
entitled to “the exercise of professional judgment as to the
needs of residents” (id. at 322); if professional judgment
leads to the conclusion that restraints are necessary
for the well-being of the detainee (or others), then the
Constitution permits those devices. Cf. Bell v. Wolfish, 441
U.S. 520, 539-40 (1979) (similar conclusion with respect to
pretrial detainees, who like civil detainees are held for
reasons other than punishment). Seling v. Young, 531
U.S. 250, 265 (2001), generalizes the proposition this way:
“due process requires that the conditions and duration
of confinement . . . bear some reasonable relation to the
purpose for which persons are committed.”
  Defendants allow that these rules may be apt for nor-
mal detainees, such as the profoundly retarded plaintiff
in Youngberg who was committed because, with an 18-
4                                              No. 02-4298

month-old mind in a 33-year-old body, he was unable to
control his impulses and had become too unruly for his
family to handle. By contrast, defendants contend, persons
committed under Chapter 980 are “nontraditional” detain-
ees who may be handled more roughly. The word “non-
traditional” is a mantra in defendants’ briefs. Yet Seling,
a case about persons detained as sexually dangerous
predators, quoted favorably from Youngberg. So did Foucha
v. Louisiana, 504 U.S. 71, 79-80 (1992), which held that
persons charged with crime, and acquitted on the ground
of insanity, may not be held in civil commitment beyond
the time when they no longer pose a danger to self or
others. To the extent that plaintiffs are uncontrollably
violent, and thus pose a danger to others, Wisconsin is
entitled to hold them in segregation for that reason alone;
preserving the safety of the staff and other detainees
takes precedence over medical goals. So we said in
Thielman v. Leean, 282 F.3d 478 (7th Cir. 2002); so the
district judge held in this very case. Just as a pretrial
detainee may be put in isolation—indeed, may be punished
for violating institutional rules, provided that the jailers
furnish notice and an opportunity for a hearing, see
Higgs v. Carver, 286 F.3d 437 (7th Cir. 2002)—so a civil
detainee may be isolated to protect other detainees from
aggression. Institutions may employ both incapacita-
tion and deterrence to reduce violence within their
walls—though if mental limitations render a detainee
insensible to punishment, the only appropriate goal would
be incapacitation. Either way, if at trial defendants can
establish that their use of seclusion was justified on
security grounds, they will prevail without regard to the
question whether extended seclusion is justified as a
treatment. There is nothing that invocation of im-
munity can do for them, however, as long as the evidence
is in conflict on the question whether a reasonable per-
son could have thought the use of seclusion appropriate
from a security perspective.
No. 02-4298                                                 5

   Qualified immunity is available unless the rules of law
on which plaintiffs rely are so clearly established that
a reasonable state actor is bound to understand how
they apply to the situation at hand. See, e.g., Saucier v.
Katz, 533 U.S. 194 (2001); Anderson v. Creighton, 483
U.S. 635 (1987). Defendants acted after Foucha had made
it clear that Youngberg applies to civil detainees who
have committed criminal acts. See also, e.g., Allen v.
Illinois, 478 U.S. 364 (1986). This leaves only the ques-
tion whether defendants’ use of seclusion could be jus-
tified on either security or treatment grounds—and the
district judge thought this question unresolvable short
of trial, given the clash of expert opinions. An interlocutory
immunity appeal may not be used to present factual
disputes for pretrial appellate resolution. See Johnson
v. Jones, 515 U.S. 304 (1995). “A court required to rule
upon the qualified immunity issue must consider . . . this
threshold question: Taken in the light most favorable to
the party asserting the injury, do the facts alleged show
the [public official’s] conduct violated a constitutional
right?” Saucier, 533 U.S. at 201 (emphasis added). Taken
in the light most favorable to the plaintiffs, the record in
this case shows that defendants kept plaintiffs in seclu-
sion for periods far exceeding what could be justified
by considerations of either security or treatment. Now
maybe plaintiffs’ experts are wrong, but it will take a
trial to sort matters out.
  To get anywhere on this appeal, defendants would
have to establish that no decision by a person with an
advanced degree is open to question in litigation. Defen-
dants have masters degrees in psychology. Their legal
position boils down to a contention that holders of such
degrees never need fear liability, even if the whole med-
ical profession and every published scholarly article are
against them. We grant the proposition, which may be
found in Youngberg itself, that states are entitled to
experiment. Detainees need not receive optimal treat-
6                                              No. 02-4298

ment, and the Constitution does not immediately fall
into line behind the majority view of a committee ap-
pointed by the American Psychiatric Association. In a
world of uncertainty about how best to deal with sexually
dangerous persons, there is room for both disagreement
and trial-and-error; all the Constitution requires is that
punishment be avoided and medical judgment be exer-
cised. But this is a far cry from saying that anything
goes—that if the holder of a masters degree in psychology
were to decide that sex offenders should be lobotomized
and subject to daily electroshock “therapy,” no court
could gainsay that decision. Prisons may attract those
members of the profession most disposed to stern mea-
sures, which makes some outside supervision vital.
  What sets this case apart from others in which the
defendants received immunity, such as Allison v. Snyder,
No. 03-1570 (7th Cir. June 19, 2003), is that respected
experts have opined, on plaintiffs’ behalf, that the defen-
dants’ choices exceed the scope of honest professional
disagreement. Plaintiffs must show something worse
than a mistake about a matter open to bona fide disagree-
ment or genuine uncertainty. But if a trier of fact con-
cludes that the Resource Center’s use of seclusion was
designed to inflict extra punishment for the plaintiffs’ sex
crimes, rather than to treat their condition or protect
others from new violence, then the plaintiffs are entitled
to damages.
                                                 AFFIRMED

A true Copy:
      Teste:
                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit

                   USCA-02-C-0072—6-20-03
