     10-2563
     Bailey v. Pataki

 1                      UNITED STATES COURT OF APPEALS

 2                          FOR THE SECOND CIRCUIT

 3                            August Term, 2011

 4   (Argued: October 31, 2011               Decided: February 14, 2013)


 5                            Docket No. 10-2563

 6                 -------------------------------------

 7                               Kenneth Bailey,

 8                            Plaintiff - Appellee,

 9   Robert Trocchio, Jorge Burgos, Jr., Louis Massei, Robert Warren,
10                            Charles Brooks,

11                 Consolidated Plaintiffs - Appellees,

12                                     v.

13          George Pataki, former Governor of New York State, Eileen
14        Consilvio, former Executive Director, Manhattan Psychiatric
15       Center and Kirby Forensic Psychiatric Center, John Doe, # 1,
16      Commissioner of the New York State Department of Corrections,
17        John Doe, # 2, Commissioner of the New York State Office of
18           Mental Health, John Doe, # 3, Superintendent of Wyoming
19     Correctional Facility, John Doe, # 4, Superintendent of Attica
20        Correctional Facility, John Doe, # 5, Superintendent of the
21         Downstate Correctional Facility, John Doe, # 6 through 20,
22    medical personnel who examined and evaluated plaintiff pursuant
23    to New York State Mental Hygiene Law Article 9, Glenn S. Goord,
24   Sharon Carpinello, Michael Giambruno, James Conway, Paul Annetts,
25             Emilia Rutigliano, Prabhakar Gumbula, Allan Wells,

26                         Defendants - Appellants,

27    Jonathan Kaplan, Olusegun Bello, Mary Ann Ross, Ayodeji Somefun,
28   Michal Kunz, William Powers, Lee E. Payant, Lawrence Farago, Luis
29   Hernandez, Samuel Langer, Robert Dennison, Former Chairman of the
30   New York State Board of Parole and Chief Executive Officer of the
31   New York State Division of Parole, Jeffrey Tedford, Former Deputy
32       Superintendent of Security at Clinton Correctional Facility,
33        William J. Sackett, Facility Senior Parole Officer, Clinton
34        Correctional Facility, Jean Liu, psychiatrist who evaluated
35     plaintiff for possible civil commitment, Abadul Qayyum, Charles
 1   Chung, Dale Artus, Former Superintendent of Clinton Correctional
 2                               Facility,

 3                   Consolidated Defendants - Appellants.

 4                   -------------------------------------

 5   Before:     McLAUGHLIN, SACK, and HALL, Circuit Judges.

 6               This is an appeal from an order of the United States

 7   District Court for the Southern District of New York (Jed S.

 8   Rakoff, Judge) denying the defendants' motion for summary

 9   judgment.   The defendants argue that they are entitled to

10   qualified immunity on the plaintiffs' 42 U.S.C. § 1983 procedural

11   due process claims because the procedures employed in the course

12   of civil commitment proceedings against the plaintiffs complied

13   with due process requirements, and because, even if they did not,

14   a reasonable person in the defendants' position would not have

15   known that he was violating the plaintiffs' constitutional

16   rights.   We conclude that the district court properly denied the

17   defendants' motion for summary judgment.   There is sufficient

18   evidence which, when viewed in the light most favorable to the

19   plaintiffs, supports their claim that they were denied their

20   right to procedural due process before being civilly committed.

21   We also agree with the district court that a reasonable official

22   in the defendants' position would have known that the process by

23   which the plaintiffs were committed did not satisfy basic

24   constitutional requirements and that the defendants are therefore

25   not entitled to qualified immunity.

26               Affirmed.

27

                                       2
 1                            AMEER BENNO, Benno & Associates, New
 2                            York, NY, (Richard Sullivan, Jeffrey
 3                            Rothman, on the brief), for Plaintiffs-
 4                            Appellees.
 5
 6                            CECELIA C. CHANG, Assistant Solicitor
 7                            General, (Barbara D. Underwood,
 8                            Solicitor General, Benjamin N. Gutman,
 9                            Deputy Solicitor General, on the brief),
10                            for Andrew M. Cuomo, Attorney General of
11                            the State of New York, New York, NY, for
12                            Defendants-Appellants.


13   SACK, Circuit Judge:

14             This appeal requires us to decide whether the civil

15   commitment of the plaintiffs following the expiration of their

16   sentences for sexually based criminal offenses constituted

17   violations of their procedural due process rights redressable

18   under 42 U.S.C. § 1983, and, if so, whether the defendants are

19   nonetheless entitled on the record before the district court to

20   summary judgment dismissing the procedural due process claims on

21   the grounds of qualified immunity.

22             The plaintiffs' commitments were effected not through

23   the state's normal civil commitment procedures, but by means of

24   an executive-branch effort aimed at preventing the release of

25   some "sexually violent predators" ("SVPs").   The Governor of New

26   York State at the time, Governor George E. Pataki, directed the

27   State's Office of Mental Health ("OMH") and Department of

28   Correctional Services ("DOCS") to develop a plan whereby he could

29   take executive action to implement an initiative (the "SVP


                                     3
 1   Initiative" or the "Initiative") that would result in the

 2   involuntary commitment of selected SVPs to state psychiatric

 3   facilities after the expiration of their criminal sentences.    The

 4   plaintiffs, who were committed pursuant to this initiative,

 5   assert a variety of claims against Governor Pataki and officials

 6   of OMH and DOCS.

 7               In this appeal, the defendants assert that the district

 8   court erred when it denied their motion for summary judgment on

 9   the plaintiffs' procedural due process claims, concluding that

10   the defendants are not entitled to qualified immunity.   The

11   plaintiffs' claims for denial of procedural due process are

12   premised on the allegation that they were committed pursuant to

13   the SVP Initiative without the benefit of notice or an

14   opportunity for a hearing prior to their commitment.

15               We agree with the district court that there is

16   sufficient evidence in the record to support the plaintiffs'

17   procedural due process claims and therefore defeat the motion for

18   summary judgment.   We also conclude that at the time of the

19   Initiative, the constitutional principle that, absent some

20   emergency or other exigent circumstance, an individual cannot be

21   involuntarily committed to a psychiatric institution without

22   notice and a predeprivation hearing was firmly established.

23   Because the law pertaining to the involuntary civil commitment of

24   prisoners was firmly established, the district court properly

25   determined that the defendants should not enjoy qualified

26   immunity.

                                       4
 1                                BACKGROUND

 2               The SVP Initiative

 3               In June 2005, a recently-paroled sex offender murdered

 4   a woman in the parking lot of the Galleria Mall in White Plains,

 5   New York.   Governor Pataki had previously attempted to enact

 6   legislation providing additional avenues for the commitment of

 7   dangerous sex offenders,1 but after the murder, "momentum to do

 8   something around [sic.] dangerous sex offenders increased,"

 9   according to associate director of OMH's Forensic Services

10   Division, Richard Miraglia, who participated in the creation and

11   implementation of the SVP Initiative.     Dep. of Richard Miraglia,

12   Nov. 24, 2009 ("Miraglia Dep."), at 62; Joint App'x at 147.     In

13   an October 2005 press release, Governor Pataki's office explained

14   that during this time period he "directed that every sexually

15   violent predator (SVP) in State custody be evaluated for

16   involuntary civil commitment before being released from prison.

17   He directed [OMH] and [DOCS] to push the envelope of the State's

18   existing involuntary commitment law because he couldn't wait any

19   longer for the Assembly Leadership to bring his legislation to

          1
               Beginning in 1998, shortly before the end of his first
     term in office, Governor Pataki tried to convince the New York
     State legislature to pass sex offender civil commitment
     legislation, but, he said in a televised interview, the state
     Assembly leadership would not permit a floor vote. Tr. of
     Interview of George E. Pataki by Bill O'Reilly, FOXNews.com, Nov.
     18, 2005; Joint App'x at 274. Those opposing the measure, the
     Governor said, were making "the same old argument. There are
     those who would rather have 50 sexual predators out on the street
     than one who they believe might have been wrongfully confined."
     Tr. of Interview of George E. Pataki by Glenn Beck, July 16,
     2007; Joint App'x at 590.

                                       5
 1   the floor for a vote."   Press Release, N.Y. State Executive

 2   Chamber, Governor: U.S. Dep’t of Justice Adds N.Y. to Nat’l Sex

 3   Offender Public Registry Web Site (Oct. 24, 2005); Joint App'x at

 4   215.

 5             In order to put the governor's policy into effect, OMH

 6   officials began engaging in daily discussions about how to

 7   implement a civil commitment initiative.   Miraglia testified that

 8   the "general tenor" of these meetings reflected "concern about

 9   dangerous repeat sex offenders being released to the community"

10   and "some frustration about legislative inaction."   Miraglia Dep.

11   at 48; Joint App'x at 136.   Discussions eventually centered on

12   using either Correction Law § 402 or Mental Hygiene Law § 9.27

13   for this purpose.   The two statutes are substantially different.

14             Section 9.27 of the Mental Hygiene Law ("MHL"),

15   codified in Article 9 of the MHL and entitled "Involuntary

16   admission on medical certification," allows the director of a

17   hospital to accept any patient "alleged to be mentally ill and in

18   need of involuntary care and treatment upon the certificates of

19   two examining physicians."   MHL § 9.27(a).   The director must

20   also receive a sworn application explaining why the patient needs

21   mental health treatment.   Id.   After the patient arrives at the

22   hospital, a member of the hospital's psychiatric staff is

23   required to examine him and confirm that he should be admitted.

24   MHL § 9.27(e).   The law requires that the nearest relative of the

25   patient, or any other person the patient has designated, be given

26   notice of the involuntary admission within five days of

                                       6
 1   admission.    MHL § 9.29(b).   Within sixty days of admission, the

 2   patient or a friend or relative can request a hearing on the

 3   involuntary admission, which is required to be held within five

 4   days of receipt by the hospital director of notice of the

 5   request.   MHL § 9.31(a).   If no hearing has been held or court

 6   order issued, or if the patient does not consent to the

 7   admission, the hospital director is required to seek a court

 8   order within sixty days of the patient's involuntary admission if

 9   the director wishes to pursue the matter.    MHL § 9.33(a).

10                Correction Law § 402 is entitled "Commitment of

11   mentally ill inmates."    Under that law, if a staff physician at a

12   prison informs the prison superintendent that an inmate is

13   mentally ill, the superintendent asks a "judge of the county

14   court or justice of the supreme court in the county" to appoint

15   two physicians to examine the inmate.     Correction Law § 402(1).

16   If both physicians conclude that hospitalization is appropriate,

17   they must produce certificates to that effect.    Id.   The

18   superintendent is then required to apply to the court for a

19   commitment order, and personally serve notice on the inmate and

20   his or her closest relative or, if relatives are unknown or not

21   within the state, "any known friend," five days prior to the

22   commitment.    Correction Law § 402(3).   The Mental Hygiene Legal

23   Services must then inform the inmate (or, in appropriate cases,

24   others concerned with the inmate's welfare) of "the procedures

25   for placement in a hospital and of the inmate's right to have a

26   hearing, to have judicial review with a right to a jury trial, to

                                        7
 1   be represented by counsel and to seek an independent medical

 2   opinion."   Id.   The inmate is entitled to request a hearing

 3   before a judge prior to any transfer to a psychiatric hospital.

 4   Correction Law § 402(5).   The procedural protections in section

 5   402 may only be bypassed where admission to a hospital is sought

 6   on an emergency basis.   Correction Law § 402(9).

 7               The state officials dealing with the matter ultimately

 8   decided that MHL § 9.27 would be the appropriate law through

 9   which to implement the SVP Initiative.    The parties disagree as

10   to whether MHL § 9.27 had previously been utilized for the civil

11   commitment of inmates.   Scott Clair, who worked for OMH at Attica

12   Correctional Facility between 1976 and 2005, testified that use

13   of Correction Law § 402 was standard procedure for the civil

14   commitment of prisoners, and that he was unfamiliar with MHL §

15   9.27.   Dep. of Scott Clair, January 14, 2010 ("Clair Dep."), at

16   43-44; Joint App'x at 1200-01.   Hal Smith, who served as

17   executive director of the Central New York Psychiatric Center, an

18   OMH facility, similarly testified that prior to the SVP

19   Initiative, inmates were transferred from DOCS to OMH facilities

20   pursuant to the Correction Law, not the Mental Hygiene Law.      Dep.

21   of Hal E. Smith, November 11, 2009 ("Smith Dep."), at 162-63,

22   166, 169; Joint App'x at 1256-59.     In a related state court

23   proceeding, the state Attorney General represented that MHL

24   § 9.27 had been used five times between 2003 and 2005 to civilly

25   commit prisoners.   State ex rel. Harkavy v. Consilvio, 10 Misc.

26   3d. 851, 856, 809 N.Y.S.2d 836, 839-40 (Sup. Ct. 2005), rev'd, 29

                                       8
 1   A.D.3d 221, 812 N.Y.S.2d 496 (1st Dep't), rev'd, 7 N.Y.3d 607,

 2   859 N.E.2d 508, 825 N.Y.S.2d 702 (2006).

 3              Sharon Carpinello, Commissioner of the OMH, presented

 4   the proposed SVP Initiative, utilizing MHL § 9.27, to Governor

 5   Pataki.   The proposal called for a pool of SVPs to be identified

 6   based on upcoming release dates.       The pool of inmates was drawn

 7   from those who had committed a violent offense as defined by New

 8   York Penal Law § 70.02, and a sex offense as defined by Penal Law

 9   § 130, as well as from another list of inmates who had committed

10   felonies involving some sexual motivation.      According to Dawne

11   Amsler, Associate Director of OMH's Bureau of Forensic Research,

12   this constituted a departure from prior practice.      Previously,

13   MHL § 9.27 applied to "individuals who have a mental illness that

14   makes them dangerous to themselves or others," and inmates who

15   did not fit that criteria were evaluated prior to their release

16   pursuant only to Correction Law § 402.      Dep. of Dawne Amsler,

17   Nov. 10, 2009 ("Amsler Dep."), at 21, 27; Joint App'x at 502-03.

18   Amsler testified that "individuals who were already on the mental

19   health caseload at OMH and receiving fairly intensive services

20   were evaluated at the end of their [sentences] regardless of the

21   crime they committed and perhaps committed if deemed necessary.

22   This changed [after implementation of the Initiative] in that all

23   sex offenders regardless of whether or not they were on caseloads

24   were evaluated."   Id. at 36; Joint App'x at 506.

25              Under the Initiative, the identified inmates would be

26   subject to a review of their criminal histories, and then to an

                                        9
 1   examination by two physicians, who would determine whether they

 2   posed a risk to the public, or suffered from a mental illness,

 3   and therefore needed inpatient care and treatment.    If the

 4   physicians recommended civil commitment, the inmate would be

 5   transferred to a psychiatric center and examined by a

 6   psychiatrist to confirm the diagnosis.    Once admitted to the

 7   facility, the inmate would begin undergoing a specialized course

 8   of treatment.

 9                Implementation of the Initiative began almost

10   immediately.    Under Defendant Glenn Goord's direction, DOCS

11   identified SVPs scheduled for release and made the presentence

12   reports for those inmates available to OMH.    OMH then compiled

13   relevant information on the inmates, including their "OMH level,"

14   which did not include a specific diagnosis, and a description of

15   the offense of conviction.    Between September 2005 and January

16   2006, Amsler personally compiled the information about the

17   identified inmates and provided that information to OMH

18   personnel.    She completed two documents for each inmate, a

19   "FPMS/DMHIS" overview and a "Static 99" evaluation.    Pls.'

20   Statement of Uncontested Material Facts Pursuant to Local Rule

21   56.1, at ¶ 85; Joint App'x 87, citing Amsler Dep.2

22                Every inmate identified by DOCS as a potential SVP was

23   evaluated for civil commitment by OMH.    Any inmate who refused to

24   submit to the evaluation was subject to disciplinary action and

          2
               Amsler did not know what the initials "FPMS" stood for.
     Amsler Dep. at 122; Joint App'x at 546.

                                       10
 1   refusal could have constituted a parole violation.      The DOCS

 2   Superintendent then applied for the civil commitment of SVP

 3   inmates who had been deemed to meet the criteria for civil

 4   commitment and had been examined by two physicians who had so

 5   certified.     The inmates received no advance notice that they

 6   would be transferred or subject to a civil commitment evaluation.

 7                While the procedures for commitment used in the SVP

 8   Initiative tracked MHL § 9.27, the standard for commitment was

 9   different from that ordinarily used under the provision, which

10   caused concern among those charged with implementing the

11   Initiative.3    Miraglia testified that officials had only days to

12   develop the techniques for assessing whether SVPs qualified for

13   commitment under the Initiative.       "[T]he sex offender assessment

14   is a specialty . . . that heretofore [had] not been within the

15   OMH menu of services. . . .    So we needed to develop that

16   capacity to understand what . . . assessment techniques would be

17   required to identify those at highest risk for sexual

18   recidivism."    Miraglia Dep. at 69; Joint App'x at 154.

19                One person involved with the Initiative wrote in an e-

20   mail under a heading "Operational Concerns and Challenges," that

          3
               The standard itself is not at issue in this appeal.
     The plaintiffs' substantive due process claim challenging whether
     the standard for commitment utilized was appropriate is not
     before us. See Bailey v. Pataki, No. 08 Civ. 8563, 2010 WL
     4237071, at *4, 2010 U.S. Dist. LEXIS 113766, at *13 (S.D.N.Y.
     Oct. 26, 2010)(denying defendants' motion for summary judgment on
     the substantive due process claims). The uncertainty regarding
     the standard used is nevertheless relevant to the procedural due
     process analysis because it compounds the risk of an erroneous
     deprivation of a liberty interest.

                                       11
 1   "[e]xpertise in the treatment of sexual offenders is not widely

 2   available among current OMH staff, and the majority of clinicians

 3   have not had any experience with this population.    Training

 4   clinicians who are unfamiliar with the sexual offender population

 5   to apply civil commitment criteria to these individuals may be

 6   difficult."   Email from Robyn Katz to Carpinello, Miraglia et al.

 7   (July 29, 2005, 6:25 p.m.); Joint App'x at 593.    Scott Clair, a

 8   Forensic Unit Chief of the mental health unit at Attica,

 9   explained that the "criteria" utilized to evaluate the inmates

10   identified as SVPs was "dangerousness to self or others."    Clair

11   Dep. at 46; Joint App'x at 1203.     Correction Law § 402 used the

12   same criteria, but, Clair testified, "[i]nmates that went on 402

13   were clinically decompensated to the point where they were

14   dangerous to self or others at that exact time," while those

15   under the SVP Initiative were evaluated "based on dangerousness

16   to the community based on the risk assessment and their

17   diagnosis."   Id. at 47; Joint App'x 1204.

18             Another OMH physician explained that she was "asked to

19   make a prediction of the risk of possible recidivism to keep the

20   community safe," whereas the Article 9 standard, by contrast, "is

21   based on if the individual is harmful to himself and others and

22   that if this is deemed the case then the certification is good

23   for a period of 72 hours."   Dep. of Mary Ann Ross, Sept. 24,

24   2009, at 437-39; Joint App'x at 1671-73.

25             The SVP Initiative's evaluation was based in part on

26   the Static 99 form, which estimated an inmate's risk of future

                                     12
 1   recidivism in five, ten, and fifteen years, and which had not

 2   previously been used in the State's civil commitment process.

 3   When the Initiative began, most of the OMH physicians did not

 4   have any experience using the Static 99 form, and some were "not

 5   comfortable" using it.   Smith Dep. at 157; Joint App'x at 1255.

 6             The Plaintiffs' Commitment

 7             Plaintiff Kenneth Bailey was among the first to be

 8   evaluated pursuant to the new Initiative.   He and the other

 9   plaintiffs contend that had it not been for its implementation,

10   they would not have been evaluated for civil commitment at all.

11   Bailey had been convicted multiple times for sexual abuse of

12   children and has admitted to molesting twenty-three girls.     His

13   most recent conviction stemmed from the repeated sexual abuse of

14   his daughter for which, in 1994, he was convicted and sentenced

15   to six to twelve years imprisonment.   Some eleven years later, on

16   September 28, 2005 -- less than two weeks before he was scheduled

17   for release -- Bailey was transferred from Wyoming Correctional

18   Facility to Attica Correctional Facility.   Three days before his

19   scheduled release, two OMH physicians evaluated Bailey for

20   involuntary civil commitment pursuant to the Initiative.   Both

21   physicians produced written certificates stating that Bailey

22   qualified for civil commitment.

23             When Bailey's sentence expired, the Superintendent of

24   Attica applied for Bailey's involuntary commitment and DOCS

25   transported Bailey to the Manhattan Psychiatric Center ("MPC")

26   the same day.   Bailey did not request a hearing following his

                                       13
 1   commitment because he apparently thought he would be at MPC for

 2   only a few weeks or months.    He contends that he was not aware

 3   that he was a psychiatric patient there.    The commitment

 4   proceedings for the other plaintiffs in this action followed

 5   similar patterns.    See Bailey v. Pataki, 722 F. Supp. 2d 443,

 6   448-49 (S.D.N.Y. 2010).

 7                The plaintiffs petitioned for habeas corpus relief in

 8   state court, arguing that the use of MHL § 9.27, rather than

 9   Correction Law § 402, to civilly commit them was illegal.        State

10   ex rel. Harkavy v. Consilvio, 7 N.Y.3d 607, 859 N.E.2d 508, 825

11   N.Y.S.2d 702 (2006).    In Harkavy, the New York Court of Appeals

12   commented: "[W]e understand how in an attempt to protect the

13   community from violent sexual predators, the State proceeded

14   under the Mental Hygiene Law."    The court concluded, however,

15   that "because inmates who are incarcerated do not pose an

16   immediate threat to the community, there should be ample time to

17   proceed under the Correction Law."     Id. at 614.   The court

18   ordered that each civilly committed individual be provided "an

19   immediate retention hearing pursuant to article 9," and directed

20   that future proceedings against inmates proceed under Correction

21   Law § 402 "with all its attendant procedural requirements

22   including court supervision, pretransfer notice and an

23   opportunity to be heard within a reasonable period of time prior

24   to the inmate's proposed release date."    Id.   The court did not

25   decide on the constitutionality of applying Article 9 to

26   prisoners.    In a concurrence by Judge Robert S. Smith, however,

                                       14
 1   he cautioned that it "would raise serious constitutional

 2   problems" because "Petitioners had all been in prison for years

 3   before the State sought to commit them civilly.    No sudden,

 4   unforseen emergency required their confinement in a mental

 5   hospital."    Id. at 615.

 6                The District Court Opinion

 7                In October 2008, the plaintiffs filed this action

 8   alleging claims under 42 U.S.C. § 1983 for violations of their

 9   Fourteenth Amendment rights to procedural and substantive due

10   process and to equal protection, and their Fourth Amendment right

11   against unreasonable seizure, under 42 U.S.C. § 1985(3) for

12   conspiracy, and under various provisions of New York State law.

13   On March 31, 2010, both sides moved for summary judgment.    The

14   district court (Jed S. Rakoff, Judge) denied the plaintiffs'

15   motion for summary judgment in full, and granted in part and

16   denied in part the defendants' motion for summary judgment.4

17   Relevant to this appeal, the district court rejected the

18   defendants' argument that they are entitled to qualified immunity

19   on the plaintiffs' procedural due process claim.

20                In its opinion, the district court first addressed

21   whether the plaintiffs had made out a procedural due process

22   claim for their "involuntar[y] commit[ment] to civil confinement

23   without advance written notice, an evaluation by court-appointed


          4
               The district court entered a separate opinion detailing
     its decision on all issues other than qualified immunity. See
     Bailey, 2010 WL 4237071, at *1, 2010 U.S. Dist. LEXIS 113766, at
     *3-*4 (explaining the different opinions and orders issued).
                                     15
 1   physicians, and . . . a predeprivation judicial hearing."

 2   Bailey, 722 F. Supp. 2d at 447.    The court explained that a

 3   confined prisoner "presents no immediate danger to the community,

 4   [therefore] full due process must be accorded before he can be

 5   transferred, upon completion of his sentence, to involuntary

 6   civil commitment."   Id. at 447-48.    Relying on Vitek v. Jones,

 7   445 U.S. 480 (1980), the court determined that such process must

 8   include notice and "a predeprivation adversary hearing . . . at

 9   which the prisoner can see the evidence for the commitment and be

10   given an opportunity to be heard in person, as well as present

11   testimony and engage in cross-examination of the state's

12   witnesses."    Bailey, 722 F. Supp. 2d at 448.

13             The district court then examined whether the process it

14   had determined was constitutionally required had been afforded to

15   the plaintiffs in this case.   It concluded that the "plaintiffs'

16   civil confinement did not remotely comport with constitutional

17   requirements."   Id. at 449.

18             Having thus decided that, viewed in the light most

19   favorable to the plaintiffs, the evidence supported the due

20   process claims, the district court then considered whether the

21   defendants were entitled to qualified immunity because the right

22   at issue was not "clearly established" when the Initiative was

23   implemented.   The court determined that it was clearly

24   established at the relevant time that in the absence of any

25   "immediate danger to society," a predeprivation hearing was

26   required before civilly committing an individual and that this

                                       16
 1   requirement was "so obvious that no reasonable defendant official

 2   could have failed to miss it."    Id. at 450-51.

 3              The district court emphasized that Correction Law

 4   § 402, which specifically dealt with commitment of inmates,

 5   required a predeprivation hearing.     Id. at 451.   The court noted,

 6   finally, that:

 7              [I]t is not irrelevant that the plaintiffs
 8              here have advanced competent evidence from
 9              which a jury could conclude that the decision
10              to deprive SVP detainees of a predeprivation
11              hearing by replacing the procedures of
12              directly applicable Correction Law § 402 with
13              those of seemingly inapplicable MHL § 9.27
14              was a deliberate decision taken for political
15              reasons. To deprive plaintiffs of their
16              constitutional rights for political gain can
17              never be reasonable.
18   Id. at 451-52.

19              The defendants appeal.

20                                 DISCUSSION

21              We review de novo a district court's denial of summary

22   judgment on qualified immunity grounds, and construe all evidence

23   and draw all reasonable inferences in the non-moving party's

24   favor.   Amore v. Novarro, 624 F.3d 522, 529 (2d Cir. 2010).

25   Summary judgment is appropriate where "there is no genuine

26   dispute as to any material fact and the movant is entitled to

27   judgment as a matter of law."    FED. R. CIV. P. 56(a).

28              I.    Procedural Due Process Claim

29              The plaintiffs allege that they were denied their

30   Fourteenth Amendment right to procedural due process when they

31   were committed to a psychiatric institution without the benefit

                                       17
 1   of notice, psychiatric examination by court-appointed physicians,

 2   or a judicial hearing prior to their commitment.   In order to

 3   state a claim under 42 U.S.C. § 1983 for denial of procedural due

 4   process in the context of this litigation, the plaintiffs are

 5   required to demonstrate that they have a protected liberty

 6   interest in not being involuntarily committed to a psychiatric

 7   institution and that they were deprived of that interest without

 8   due process of law.   See Tellier v. Fields, 280 F.3d 69, 79-80

 9   (2d Cir. 2000).

10             On appeal, the defendants urge that the district court

11   erred in reading Vitek v. Jones, 445 U.S. 480 (1980), as

12   mandating especially stringent due process procedures for

13   prisoners, arguing that while notice and a hearing are generally

14   required, nothing in Vitek prohibits brief periods of prehearing

15   commitment if a timely hearing is later offered.   The defendants

16   insist that courts have upheld identical prehearing commitments

17   of prisoners that the district court concluded did not satisfy

18   due process here, and that in any event the procedures employed

19   did indeed comply with due process requirements.   The district

20   court looked to the Supreme Court's decision in Vitek in

21   determining what procedural protections are required before an

22   inmate can be civilly committed without his consent consistent

23   with due process standards.   Bailey, 722 F. Supp. 2d at 447-48.

24   The court read Vitek to require notice, a predeprivation

25   adversarial hearing, and a written statement by the decision



                                     18
 1   maker disclosing the reasons for the inmate's commitment.    Id. at

 2   448.

 3               Vitek addressed an as-applied challenge to the

 4   constitutionality of a Nebraska statute that provided for the

 5   transfer of an inmate to a psychiatric facility at the direction

 6   of the State's Director of Correctional Services if a

 7   psychologist or psychiatrist concluded that the prisoner

 8   "'suffers from a mental disease or defect'" that the prisoner's

 9   current facility could not properly treat.   Vitek, 445 U.S. at

10   483.   Such a transfer remained valid until the expiration of the

11   prisoner's sentence, at which point civil commitment proceedings

12   were required prior to continued confinement.   Id. at 483-84.

13               The plaintiff in Vitek was an inmate who had been

14   transferred to a psychiatric facility after setting his mattress

15   on fire while in solitary confinement.   Id. at 484.    The Vitek

16   Court considered whether the transfer of a prisoner to a state

17   mental hospital implicated a liberty interest triggering due

18   process protection, and concluded that the plaintiff's "objective

19   expectation" based on state law and practice that he would not be

20   transferred to a mental hospital if his condition could be

21   treated in prison did create a liberty interest requiring

22   "appropriate procedures" prior to its deprivation.     Id. at 489-

23   90.    The Court emphasized the "stigmatizing consequences of a

24   transfer to a mental hospital" and the "mandatory behavior

25   modification" treatment the prisoner would undergo once at that

26   hospital.   Id. at 494.

                                      19
 1                The district court in Vitek identified seven safeguards

 2   it concluded were required to protect the plaintiff's liberty

 3   interest.    Among them were pretransfer notice to the prisoner, a

 4   pretransfer hearing at which the prisoner could present and

 5   cross-examine witnesses, and the right to counsel.    See id. at

 6   494-95.

 7                In considering these requirements, the Supreme Court

 8   explained that while the State has a substantial interest in

 9   "segregating and treating mentally ill patients," "[t]he interest

10   of the prisoner in not being arbitrarily classified as mentally

11   ill and subjected to unwelcome treatment is also powerful," and

12   the "risk of error . . . is substantial enough to warrant

13   appropriate procedural safeguards against error."    Id. at 495.

14   The Court acknowledged that the inquiry into whether a prisoner

15   should be placed in a psychiatric facility is "essentially

16   medical," but concluded that "[t]he medical nature of the

17   inquiry . . . does not justify dispensing with due process

18   requirements.    It is precisely the subtleties and nuances of

19   psychiatric diagnoses that justify the requirement of adversary

20   hearings."     Id. (quotation marks and citation omitted).   The

21   Court concluded that the procedures prescribed by the district

22   court were "appropriate in the circumstances present . . . ."

23   Id. at 496.5


          5
               The requirement of legal counsel was endorsed by only a
     plurality of the court. Justice Powell wrote in a concurrence
     that although "qualified and independent assistance" must be
     provided, it need not take the form of a "licensed attorney."
     Vitek, 445 U.S. at 497 (Powell, J., concurring).
                                       20
 1              Vitek is plainly relevant to this case.    It confirms

 2   the plaintiffs' contention that a prisoner has a liberty interest

 3   in the essential nature of his confinement, and that this

 4   interest must be safeguarded with appropriate procedures.      But it

 5   does not automatically follow from the Vitek Court's endorsement

 6   of the procedures mandated by the district court in that case

 7   that the same process is required in every case.     See id.

 8   (concluding that the procedures set forth by the district court

 9   were "appropriate in the circumstances present here." (emphasis

10   added)).   The Court's acknowledgment that it is "precisely the

11   subtleties and nuances of psychiatric diagnoses that justify the

12   requirement of adversary hearings," id. at 495, similarly stops

13   short of identifying the circumstances in which an adversary

14   hearing must be held or what that hearing should entail.

15              Indeed, the facts and legal posture of Vitek differ

16   significantly from those before us.   The plaintiff in Vitek faced

17   confinement in a psychiatric institution for the duration of his

18   prison sentence based on the opinion of a single doctor, with no

19   opportunity for an additional hearing.   The procedures at issue

20   in Vitek, therefore, provided fewer safeguards than were offered

21   to the plaintiffs here.    And because the Vitek Court never

22   discussed whether the availability of a postdeprivation hearing

23   negates the need for a predeprivation hearing, its applicability

24   to this case is limited.

25              The Supreme Court's decision in Zinermon v. Burch, 494

26   U.S. 113 (1990), however, does offer guidance as to when a

                                      21
 1   postdeprivation hearing would survive constitutional scrutiny.

 2   There, the Court considered the case of a patient admitted to a

 3   state mental health hospital after completing voluntary admission

 4   forms.   The patient later alleged that he was a paranoid

 5   schizophrenic and had been unable to give informed consent to his

 6   admission.    The defendants, he asserted, should have afforded him

 7   the procedural safeguards required for involuntary commitment,

 8   including a hearing.    Id. at 123-24.

 9                Quoting Mathews v. Eldrige, 424 U.S. 319, 335 (1976),

10   the Court described the factors to be considered in determining

11   what procedural protections are necessary in a particular case:

12                "First, the private interest that will be
13                affected by the official action; second, the
14                risk of an erroneous deprivation of such
15                interest through the procedures used, and the
16                probable value, if any, of additional or
17                substitute procedural safeguards; and
18                finally, the Government's interest, including
19                the function involved and the fiscal and
20                administrative burdens that the additional or
21                substitute procedural requirement would
22                entail."

23   Zinermon, 494 U.S. at 127.

24                The Zinermon Court observed that, applying the Mathews

25   test, it "usually has held that the Constitution requires some

26   kind of hearing before the State deprives a person of liberty or

27   property."    Id. (emphasis in original).   But, the Court

28   continued, a postdeprivation hearing might satisfy due process

29   where a predeprivation hearing is "unduly burdensome in

30   proportion to the liberty interest at stake" or "where the State

31   is truly unable to anticipate and prevent a random deprivation of

                                       22
 1   a liberty interest."   Id. at 132.    "[W]here the State feasibly

 2   can provide a predeprivation hearing," however, "it generally

 3   must do so regardless of the adequacy of a postdeprivation . . .

 4   remedy."    Id.

 5               The Court concluded that the defendants could be liable

 6   to the plaintiff under his section 1983 claim for deprivation of

 7   his procedural due process rights because it was foreseeable that

 8   a mentally ill patient incompetent to give informed consent would

 9   nonetheless sign a voluntary admission form and because the Court

10   could not "say that predeprivation process was impossible" under

11   the circumstances.   Id. at 136-37.

12               The deprivation here seems to us to have been as

13   foreseeable as it was in Zinermon.     As in that case, the

14   deprivation here occurred at a "predictable point," see id. at

15   136 -- the expiration of the inmate's sentence.    Nothing that

16   occurred here was random or unanticipated so as to prevent the

17   State from planning for and then providing predeprivation

18   process.    Nor, as we discuss below, can it reasonably be argued

19   that predeprivation procedural protections were "unduly

20   burdensome" in comparison with the substantial liberty interest

21   at stake.

22               Application of the Mathews balancing test supports the

23   conclusion that predeprivation process was required here and that

24   postdeprivation remedies were constitutionally insufficient.      See

25   Mathews, 424 U.S. at 334-35.    With respect to the "private

26   interest" aspect of the standard, the defendants acknowledge that

                                      23
 1   "involuntary commitment is a significant curtailment of liberty,"

 2   but argue that because of the "extremely brief" period of

 3   potential prehearing commitment, the safeguards required are not

 4   as significant as they would otherwise be.   Appellants' Br. 30.

 5   We think there can be no serious doubt that the liberty interests

 6   implicated here are of a high order.   Not only were the

 7   plaintiffs' physical freedoms curtailed, but they were also

 8   subject to specialized mental health treatment.   This treatment

 9   included the use of a "penile plethysmograph," which the First

10   Circuit has explained is a "strain gauge strapped to an

11   individual's genitals while sexually explicit pictures are

12   displayed in an effort to determine his sexual arousal patterns."

13   Harrington v. Almy, 977 F.2d 37, 44 (1st Cir. 1992).     One can

14   imagine that to be something less than a dignity inspiring

15   experience.

16             Classification as an SVP also constitutes a fundamental

17   change in an inmate's status and privileges.   An SVP committed to

18   a psychiatric hospital cannot gain release until he has secured

19   either employment or vocational training, despite the fact that

20   any potential employer must be notified of his SVP status.    An

21   SVP also suffers the stigma of the label itself, which connotes a

22   likelihood of recidivist sexually violent behavior, and of a

23   diagnosis of mental illness.   And although it may be true that

24   SVPs have already been convicted of sex offenses carrying

25   significant stigma, that the additional stigma is only

26   incremental does not render it illusory.

                                     24
 1              As Vitek confirmed, a prisoner –- even one convicted of

 2   an atrocious crime -- maintains a liberty interest in the

 3   conditions relating to the essential nature of his confinement.

 4   Here, not only did those committed pursuant to the SVP Initiative

 5   face a material change in the nature of their confinement, but

 6   their confinement was also prolonged.

 7              With regard to the second factor in the Mathews test --

 8   "risk of an erroneous deprivation of such interest through the

 9   procedures used," Zinermon, 494 U.S. at 127 -- the defendants

10   insist that the risk of such an erroneous deprivation during the

11   five-day period before a committed SVP is entitled to a hearing

12   is "slight" because of the safeguards provided in Article 9.

13   Appellants' Br. 30.   The defendants' argument is not without

14   force.   There were, on paper, procedures intended to mitigate the

15   risk of an erroneous deprivation.    For example, three separate

16   medical professionals were required to sign off on every

17   commitment.   And, as the defendants point out, fewer than 20

18   percent of those evaluated under the SVP Initiative were

19   ultimately committed.

20              Despite these safeguards, several factors increased the

21   risk that an inmate would be erroneously committed under the

22   Initiative.   The OMH physicians charged with examining the

23   prisoners were unfamiliar with the standards for assessing sex

24   offenders and the likelihood of recidivism, and were evaluating

25   them using a novel standard and new tools, such as the Static 99

26   form, with which they had no experience.

                                     25
 1             Although it may be dangerous to overstate the

 2   importance of the fact that the Initiative was quickly put into

 3   place in a politically charged environment, it is difficult to

 4   ignore (as the district court did not).   Because of the infancy

 5   of the Initiative and the lack of training or formal procedures,

 6   coupled with significant political pressure, the risk of error

 7   seems to us to have been enhanced.   See Rodriguez v. City of New

 8   York, 72 F.3d 1051, 1062 (2d Cir. 1995) ("Though we agree with

 9   the district court that due process does not require a guarantee

10   that a physician's assessment of the likelihood of serious harm

11   be correct, . . . due process does demand that the decision to

12   order an involuntary emergency commitment be made in accordance

13   with a standard that promises some reasonable degree of

14   accuracy.").   Additional safeguards would unquestionably have

15   lessened this risk.   If the plaintiffs were afforded notice and a

16   hearing prior to their commitments, the decision as to whether to

17   commit would have been undertaken by a neutral decisionmaker with

18   the benefit of an adversarial hearing.

19             The defendants argue that the availability of a

20   postdeprivation hearing mitigated the risk of erroneous

21   deprivation.   They point out that none of the plaintiffs

22   requested a hearing following his commitment.   Although this is

23   true, the plaintiffs' filing of a habeas corpus petition in New

24   York State court and Bailey's allegation that he did not know

25   that he could request such a hearing, suggest that the



                                     26
 1   availability and contours of the process likely were not clear to

 2   the plaintiffs.6

 3              With respect to the third part of the Mathews test --

 4   the Government's interest, including the function involved and

 5   the fiscal and administrative burdens that the additional or

 6   substitute procedural requirement would entail, Zinermon, 494

 7   U.S. at 127 -- the defendants urge that predeprivation hearings

 8   would have imposed a substantial burden on the State.   They note

 9   that during the first month of the Initiative, eighty prisoners

10   were examined, twenty-one of whom were eventually committed, and

11   that many of these prisoners were on the verge of being released.

12   Because the SVP Initiative had begun only weeks before some of

13   the plaintiffs were scheduled for release, the defendants

14   contend, predeprivation hearings, in addition to conducting

15   psychiatric evaluations, would have diverted scarce resources

16   from the treatment of mentally ill inmates.

17              We disagree.   Under the provisions of Article 9, the

18   defendants should have been prepared to present their case for

19   civil commitment at a hearing on five-days notice at any point

20   after a civil commitment was effected.   It does not follow that

21   they could not have prepared for such a hearing in advance of

22   commitment without incurring substantial additional expense or

23   effort.   The sole reason that holding predeprivation hearings


          6
               The record otherwise contains little detail about what
     the plaintiffs understood regarding the availability of
     postdeprivation hearings.

                                      27
 1   would have unduly burdened the State is that a decision was made

 2   to create and implement the Initiative on a compressed timeline;

 3   any exceptional burden that the State faced was of its own

 4   making.   We do not think this fact should work in the defendants'

 5   favor –- if it did, due process requirements could be curtailed

 6   by delaying the establishment of proper procedures until they

 7   became "too burdensome."

 8              Construing the evidence in the light most favorable to

 9   the plaintiffs, the facts alleged, if proven, would establish

10   that the defendants violated the plaintiffs' rights to procedural

11   due process.   Even if it may be said that the district court

12   mischaracterized Vitek's dicta as holding, we find no support for

13   the defendants' contention that a predeprivation hearing was not

14   required in the absence of emergent circumstances.   The Mathews

15   test brings the defendants' violation into sharp relief: the

16   private interest at stake was significant; the risk of erroneous

17   deprivation was pronounced due to the lack of notice or an

18   adversary proceeding, the politically charged environment, and

19   the novel aspects of this initiative, and that risk would have

20   been reduced by additional procedures; and the burden to the

21   State would have been no greater predeprivation than

22   postdeprivation were it not for the State's own actions in

23   scrambling to implement the Initiative.




                                     28
1             II.   Qualified Immunity

2             The defendants are entitled to qualified immunity if

3   they can establish either that (1) "a constitutional right was

4   [not] violated" or (2) "the right was [not] clearly established."

5   Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part on

6   other grounds by Pearson v. Callahan, 555 U.S. 223 (2009).7   As a

7   part of this inquiry, the Court considers whether "it would be

8   clear to a reasonable officer that his conduct was unlawful in

9   the situation he confronted."8   Id. at 202.


         7
            This was the test applied by the district court: The
    "defendants are entitled to qualified immunity if they show
    either that plaintiffs have failed to make out a violation of
    constitutional right or if the right at issue was not clearly
    established at the time of the alleged violation." Bailey, 722
    F. Supp. 2d at 449.
         8
            There is some tension in our Circuit's cases as to
    whether the qualified immunity standard is of two or three parts,
    and whether the "reasonable officer" inquiry is part of step two
    -- the "clearly established" prong -- or whether it is a
    separate, third step in the analysis. Compare, e.g., Okin v.
    Vill. of Cornwall-On-Hudson Police Dep't, 577 F.3d 415, 433 (2d
    Cir. 2009)(reciting two-part test and stating that "'[t]he
    relevant, dispositive inquiry in determining whether a right is
    clearly established is whether it would be clear to a reasonable
    officer that his conduct was unlawful in the situation he
    confronted'" (quoting Saucier, 533 U.S. at 202)), with X-Men
    Sec., Inc. v. Pataki, 196 F.3d 56, 65-66 (2d Cir. 1999)(a
    governmental official is entitled to qualified immunity "in any
    of three circumstances": (1) if the charged conduct does not
    violate a constitutional right; (2) if the constitutional right
    "was not clearly established at the time of the conduct"; or (3)
    "if the defendant's action was objectively legally reasonable in
    light of the legal rules that were clearly established at the
    time it was taken" (quotation marks, brackets, and ellipses
    omitted)); Taravella v. Town of Wolcott, 599 F.3d 129, 133-34 (2d
    Cir. 2010)(describing qualified immunity analysis as "a two-part
    inquiry" but adding that "the qualified immunity defense also
    protects an official if it was 'objectively reasonable' for him
    at the time of the challenged action to believe his acts were
    lawful").
                                     29
 1             Qualified immunity is an affirmative defense and the

 2   burden is on the defendant-official to establish it on a motion

 3   for summary judgment.   See In re State Police Litig., 88 F.3d

 4   111, 123 (2d Cir. 1996).   We have already determined that there

 5   is sufficient evidence in the record to support, as a matter of

 6   law, the plaintiffs' procedural due process claims.    We therefore

 7   turn to the question of whether the right at issue was clearly

 8   established.   In answering that question, we look to whether (1)

 9   the right was defined with reasonable clarity, (2) the Supreme

10   Court or the Second Circuit has confirmed the existence of the

11   right, and (3) a reasonable defendant would have understood from

12   the existing law that his conduct was unlawful.    Luna v. Pico,

13   356 F.3d 481, 490 (2d Cir. 2004).     We have further held that

14   where the law was established in three other circuits and the

15   decisions of our own Court foreshadowed the right, the law was

16   sufficiently "well established" that its violation stripped the

17   defendant of his immunity.   Varrone v. Bilotti, 123 F.3d 75, 78-

18   79 (2d Cir. 1997).

19             For a right to be clearly established, it is not

20   necessary that courts have agreed "upon the precise formulation

21   of the standard."    Saucier, 533 U.S. at 202.   "Assuming, for

22   instance, that various courts have agreed that certain conduct is

23   a constitutional violation under facts not distinguishable in a



          This is not a debate we need enter inasmuch as we conclude
     that qualified immunity is not available to the defendants
     irrespective of which way the test is articulated.
                                      30
 1   fair way from the facts presented in the case at hand, the

 2   [defendants] would not be entitled to qualified immunity based

 3   simply on the argument that courts had not agreed on one verbal

 4   formulation of the controlling standard."    Id. at 202-03.

 5             The Supreme Court stated more than twenty years ago in

 6   Zinermon that "where the State feasibly can provide a

 7   predeprivation hearing . . . it generally must do so regardless

 8   of the adequacy of a postdeprivation . . . remedy . . . ."

 9   Zinermon, 494 U.S. at 132.   Unless a predeprivation hearing is

10   "unduly burdensome in proportion to the liberty interest at

11   stake" or "the State is truly unable to anticipate and prevent a

12   random deprivation of a liberty interest," predeprivation notice

13   and a hearing are required before an individual may be deprived

14   of a significant liberty interest.   Id.

15             The defendants raise several arguments in support of

16   their position that the right at issue here -- notice and an

17   adversarial hearing prior to civil commitment -- was not so

18   clearly established that a reasonable person in the defendants'

19   position would know that his conduct was unlawful.   The

20   defendants contend that the Second Circuit upheld the procedures

21   laid out in Article 9 in Project Release v. Prevost, 722 F.2d 960

22   (2d Cir. 1983), which examined the constitutionality of Article

23   9's provision allowing hospitalization for up to sixty days

24   without a hearing unless one is requested.   Project Release

25   dealt, however, with the facial validity of Article 9, and

26   explicitly left open the possibility of an as-applied challenge.

                                     31
 1   Id. at 971.   The plaintiffs do not contend that Article 9 is

 2   unconstitutional when utilized to take an acutely dangerous and

 3   mentally ill person off the streets –- the basis upon which we

 4   upheld the statute in Project Release.

 5             In that decision, we concluded that involuntary

 6   commitment without an automatic hearing within 48 hours was

 7   constitutional when dealing with "persons with a mental illness

 8   'for which care and treatment in a hospital is essential to such

 9   persons' welfare and whose judgment is so impaired that [they

10   are] unable to understand the need for such treatment.'"    Id. at

11   972 (quoting MHL §§ 9.27, 9.01).     That is not the population at

12   issue here, nor the standard that was applied.

13             The defendants also point out that the New York

14   Appellate Division "found no constitutional violation in

15   plaintiffs' own cases when plaintiffs raised the identical due

16   process claim on state habeas review."    Appellants' Br. 37.

17   (emphasis omitted).   The defendants refer to State ex rel.

18   Harkavy v. Consilvio, 29 A.D.3d 221, 812 N.Y.S.2d 496 (1st Dep't

19   2006), but that decision was reversed by the New York Court of

20   Appeals, see State ex rel. Harkavy v. Consilvio, 7 N.Y.3d 607,

21   859 N.E.2d 508, 825 N.Y.S.2d 702 (2006).    And although the Court

22   of Appeals in Harkavy did not decide the constitutionality of

23   applying Article 9 to prisoners, in a concurrence, as we have

24   seen, Judge Smith noted that it "would raise serious

25   constitutional problems," because the plaintiffs had all been in

26   prison for several years before civil commitment procedures were

                                     32
 1   initiated and there was no "sudden, unforseen emergency" that

 2   would require their immediate commitment without prior notice or

 3   a hearing.    Id. at 615 (Smith, J., concurring).

 4                The defendants cite several cases in which they contend

 5   that prehearing transfer and commitment of prisoners and sex

 6   offenders has been held to be constitutional.    In Gay v. Turner,

 7   994 F.2d 425 (8th Cir. 1993) (per curiam), for example, the

 8   Eighth Circuit affirmed a grant of summary judgment for a

 9   defendant on the plaintiff's due process claim where the

10   plaintiff, an inmate, had been transferred to a state mental

11   hospital without a hearing.    Id. at 426.   That decision, however,

12   was based on the plaintiff having signed transfer forms, and her

13   failure to adduce any evidence that her consent was not

14   voluntary.    Id. at 427.

15                The defendants also rely on Aruanno v. Hayman, 384 F.

16   App'x 144 (3d Cir.), cert. denied, 131 S.Ct. 835 (2010), in which

17   the Third Circuit -- in a non-precedential opinion -- upheld a

18   state-law provision allowing a court to order temporary

19   commitment based on an ex parte submission from the State

20   Attorney General.    Id. at 150.   Any individual committed under

21   the statute was entitled to a hearing within twenty days of the

22   commitment order.    Id.

23                The factual circumstances in Aruanno differ

24   significantly from those here.     New Jersey had initiated civil

25   commitment proceedings nearly a year before the plaintiff's

26   release date, but was unable to hold a hearing due in part to the

                                        33
 1   plaintiff's "repeated insistence that he be appointed new

 2   counsel."   Id. at 145.    In addition, Aruanno was temporarily

 3   committed pursuant to a judicial order, albeit one based on an ex

 4   parte submission.    Id. at 148 n.8.   Aruanno suffered from

 5   schizophrenia and refused to take his medication, which a doctor

 6   later testified presented a "very high" risk of future violence.

 7   Id. at 146.    The non-precedential opinion was issued, moreover,

 8   over Judge McKee's dissent, which argued that "absent exigent

 9   circumstances, no justification exists for denying [the

10   plaintiff] his due process right to notice prior to his

11   involuntary commitment under the [act]."    Id. at 152-53.     He

12   continued, "[i]t is clear that post-deprivation hearings are

13   appropriate and constitutionally permissible in emergency

14   situations where there is no realistic opportunity to afford

15   prior notice to one whom the state wants to involuntarily commit.

16   That is simply not the situation here . . . ."    Id. at 153.       We

17   agree.

18               The defendants also point to the procedures in the

19   federal sex-offender commitment statute, 18 U.S.C. § 4248.      Under

20   that statute, the Department of Justice must certify to a federal

21   district court that a prisoner is "sexually dangerous," at which

22   point the statute "stays the individual's release from

23   prison . . . giving the Government an opportunity to prove its

24   claims at a hearing."     United States v. Comstock, 130 S.Ct. 1949,

25   1954 (2010).   The prisoner is then afforded counsel and an

26   adversarial hearing prior to his civil commitment.    Id.

                                       34
 1              According to the defendants, the procedures set forth

 2   in Article 9 are more protective than are those in the federal

 3   statute because the latter permits the individual's release to be

 4   stayed for up to seventy-five days or more before his commitment

 5   hearing.   See 18 U.S.C. § 4247(b); see also United States v.

 6   Shields, 522 F. Supp. 2d 317, 334 (D. Mass. 2007).9   What the

 7   defendants fail to acknowledge, however, is that the federal

 8   statute permits a temporary stay of release prior to a commitment

 9   hearing; it does not permit, as was the case here, civil

10   commitment followed by the opportunity for a hearing.    Here, the

11   question is whether an individual must be afforded the

12   opportunity for a hearing before he is civilly committed to a

13   psychiatric facility.   Vitek's emphasis on the "stigmatizing

14   consequences of transfer to a mental hospital" and the "mandatory

15   behavior modification" treatment that prisoners undergo once at

16   the hospital, Vitek, 445 U.S. at 494, suggests there is an

17   important difference between holding an inmate for a brief period

18   beyond his release date for the purpose of providing process

19   before civil commitment and subjecting him to commitment in a

20   psychiatric facility in advance of any hearing.


          9
               In Shields, the district court declined to invalidate
     the federal sex-offender statute on a facial due process
     challenge. The court did, however, find that the lack of a
     probable cause hearing after certification "raises serious
     constitutional questions." Shields, 522 F. Supp. 2d at 333. The
     court concluded that, in order to avoid interpreting the act
     itself as unconstitutional, it would construe it to require a
     hearing "within forty-eight hours after a certified individual is
     detained beyond his scheduled release date," unless there were
     "exigent or extraordinary circumstances." Id. at 337.
                                     35
 1             We ultimately agree with the district court that "the

 2   basic proposition that due process requires a predeprivation

 3   hearing unless there is an immediate danger to society" was well

 4   established prior to 2005.   Bailey, 722 F. Supp. 2d at 451.

 5   Despite the litany of cases cited by the defendants to suggest

 6   that due process tolerates civil commitment of inmates without

 7   either notice or a hearing, each of those cases involved critical

 8   factors not present here.    In none of the cases was a civil

 9   commitment effected without notice or a predeprivation hearing

10   where the inmate was safely confined, and, indeed, where the

11   standard the inmate met was not one of immediate and acute

12   dangerousness but rather potential recidivism five, ten, or

13   fifteen years after his release.      See, e.g. Glass v. Mayas, 984

14   F.2d 55, 57 (2d Cir. 1993) (upholding involuntary commitment

15   without a predeprivation hearing where the committed individual

16   "was hospitalized following two reports he was threatening an

17   individual with a gun," had displayed behavior described by those

18   who examined him as "hostile, guarded, angry, suspicious,

19   uncooperative, and paranoid," and "had an extensive psychiatric

20   history, which included a history of violent behavior").     The

21   defendants offer no Supreme Court or Second Circuit precedent for

22   the proposition that due process is satisfied if an individual in

23   the plaintiffs' position has the opportunity to request a hearing

24   after he has been labeled an SVP and civilly committed.

25             Except for emergent or otherwise unusual circumstances,

26   such as where an emergency makes it necessary for the State to

                                      36
 1   act immediately to avoid imminent harm to the person being

 2   restrained or to the public, or where predeprivation process is

 3   highly impracticable, the Supreme Court has long held that "the

 4   Constitution requires some kind of a hearing before the State

 5   deprives a person of liberty."   Zinermon, 494 U.S. at 127

 6   (emphasis in original). See also United States v. James Daniel

 7   Good Real Prop., 510 U.S. 43, 62 (1993) ("Unless exigent

 8   circumstances are present, the Due Process Clause requires the

 9   Government to afford notice and a meaningful opportunity to be

10   heard before seizing real property . . . ."); Cleveland Bd. of

11   Educ. v. Loudermill, 470 U.S. 532, 542 (1985) ("An essential

12   principle of due process is that a deprivation of life, liberty,

13   or property be preceded by notice and opportunity for hearing

14   appropriate to the nature of the case." (quotation marks and

15   citation omitted)); Vitek, 445 U.S. at 496 ("[N]otice is

16   essential to afford the prisoner an opportunity to challenge the

17   contemplated action and to understand the nature of what is

18   happening to him."); Burtnieks v. City of New York, 716 F.2d 982,

19   988 (2d Cir. 1983) (observing that "the existence vel non of an

20   emergency . . . is a material fact" in determining whether a

21   predeprivation hearing is constitutionally required).

22             Furthermore, the decision to apply the procedures of

23   Article 9 to the plaintiffs was made despite the fact that there

24   was a law in place, Correction Law § 402, which outlined civil

25   commitment procedures for those already incarcerated and which

26   clearly provided for a predeprivation hearing.   We think

                                      37
 1   reasonable persons in the defendants' positions would have

 2   understood that, absent exigent circumstances not present here,

 3   it was unconstitutional to civilly commit inmates to a

 4   psychiatric facility prior to any notice or adversarial hearing.

 5   Using the words of the district court, in the absence of any

 6   "immediate danger to society," a predeprivation hearing was

 7   required before civilly committing an inmate and this requirement

 8   was "so obvious that no reasonable defendant official could have

 9   failed to miss it."    Bailey, 722 F. Supp. 2d at 450.      The

10   defendants are therefore not entitled to the benefit of qualified

11   immunity.

12               III.   Plaintiffs' Additional Claims

13               The defendants, citing Sadallah v. City of Utica, 383

14   F.3d 34 (2d Cir. 2004), argue that because they are entitled to

15   qualified immunity on the plaintiffs' procedural due process

16   claims, the defendants are also entitled to summary judgment on

17   the plaintiffs' remaining federal and state claims.      The court in

18   Sadallah explained that "[n]ormally, we would not have

19   jurisdiction to consider plaintiffs' [additional] claims . . .

20   because only the issue of . . . entitlement to qualified immunity

21   was immediately appealable.    When, however, an appellate court

22   'has taken jurisdiction over one issue in a case, it may, in its

23   discretion, exercise jurisdiction over an independent but related

24   question that is inextricably intertwined with the [appealable

25   issue] or is necessary to ensure meaningful review of that

26   issue.'"    Id. at 39 (quoting Ierardi v. Sisco, 119 F.3d 183, 189

                                       38
 1   (2d Cir. 1997)).    Specifically, the defendants urge that because

 2   the gist of the plaintiffs' other claims is the existence of a

 3   deliberate conspiracy to violate the plaintiffs' rights, those

 4   claims must fail because the right at issue was not clearly

 5   established.

 6                  We decline to exercise jurisdiction over the

 7   plaintiffs' other claims.    Reaching these additional claims is

 8   not necessary to ensure meaningful review of the qualified

 9   immunity question, nor are the claims "inextricably intertwined"

10   with that issue.    Furthermore, as a practical matter, because we

11   conclude that qualified immunity does not attach to the

12   procedural due process claims, there would be no basis for

13   dismissing the other claims against the defendants.

14              IV.    Plaintiffs' Summary Judgment Motion

15              Finally, the plaintiffs assert that the district court

16   erred in not granting summary judgment in their favor on their

17   procedural due process claims after determining that the

18   defendants were not entitled to qualified immunity, and, in a

19   later opinion, that each defendant participated in the

20   constitutional deprivation.

21              The plaintiffs mischaracterize the district court's

22   opinion.   The court concluded that the plaintiffs had adduced

23   enough evidence of personal involvement to survive summary

24   judgment –- not that "the defendants did not dispute their

25   'participat[ion] in the creation and implementation' of the SVP

26   initiative."     Appellees' Br. at 60.   The district court noted

                                       39
 1   that the defendants "dispute the extent and materiality of such

 2   involvement" and determined that the question must go to the

 3   jury.   Bailey, 2010 WL 4237071, at *4, 2010 U.S. Dist. LEXIS

 4   113766, at *12.   The factual disputes that the district court

 5   identified as precluding summary judgment have not been resolved,

 6   and we think it impossible for us to do so on the current record.

 7   Neither is this a question "inextricably intertwined" with the

 8   resolution of the qualified immunity issue.

 9                               CONCLUSION

10              We have considered all of the parties' arguments, and

11   for the reasons set forth above, we affirm the decision of the

12   district court.




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