this case is an unprecedented event institutional reform lawsuits are not uncommon against the state of california and its agencies and its officials however in those cases it is very unusual and t damages against them for their i temped to implement the statute are they doing anything other than implementing state law no your hon that is why the qualified immunity defense has been presented at this stage of the litigation it is not uncommon for qualified immunity to be raised against a dismissal and a motion to dismiss the complaint is very common in fact qualified immunity the qualified immunity defense requires that a constitutional right be alleged against the defendant which is applicable to those alleging that the defendant has violated that constitutional right ok our position is that for the plaintiffs of probably cause of action in the second amended complaint they have not alleged violation of a constitutional right which applies to them as against the defendant sixth and the motion to dismiss that first the many complaint was denied by the court on or about august of two thousand then discovery proceeded in the course of discovery three hundred thousand pages  adding mr hunter in his individual capacity the second and then a complaint was filed and served on the fence on or about i believe the end of september two thousand  applied constitutional violations chief among them being ex post facto double jeopardy the eighth amendment and sixth amendment violations alleging defendants have violated those well i would agree your honor i would find that very unusual as well but these are not prison officials and these are not prisoners these are civil detainees and of the california sexually violent predator act these are all civil treatment and the the plaintiffs allegations move into this yes it is it purely a legal question in this regard they were already finished or sentences they have finished their sentences following the expiration of their sentences the department of corrections references the individual over to the department of mental health for determination of whether he meets the criteria or she meets the criteria to be committed as a sexually violent predator if the department of mental health and a department of corrections together determine that they do meet the criteria of the case is turned over to the district attorney who may or may not proceed if the district attorney tourney determines that they will proceed the case goes to a probable cause hearing if the probable cause is found that the person meets the criteria is actually violent predator it goes to a jury trial requiring a unanimous verdict if the jury returns a unanimous verdict that the person should be committed as actually violent predator the person is then committed to the custody of the department of mental civil detainees therefore criminal jurisprudence does not interest in this analysis and therefore qualified immunity must be found when the constitutional violation alleged is a criminal pelleas have remedies for past violations under the fourteenth amendment to the united states constitution they do not have remedies under the eighth amendment the six the men the ex post facto and the double jeopardy clauses because those are criminal only criminal your honor i do not have that case at the top of my head but it is in our brief and the eighth amendment has been held by the supreme court to apply only to the criminally confined what do you think would happen if we took your people into the department of the control the department of mental health and we discovered that the department of mental health decided that we were going to treat these people is to burden them with hot irons not just make them smell bad things but burn them with hot irons we're going to show them pictures of the stuff we don't want  to do and instead of making it smell bad in the room it's very interesting we're going to burn you think that the courts would have that the cruel and unusual punishment aspect of that might not attach no you are  that they are being punished and not treated or not merely confined for the protection of society but that claim would be brought under the fourteenth amendment of the united states constitution because cruel and unusual punishment attaches only to prisoners held for punishment  guantanamo situation would be unrelated to this but i must profess my ignorance to the court on that line of cases it is not one that i have reviewed or researched in regards to this particular issue and i do not believe plaintiffs have researched or daughter is familiar with the treatment process yes there is phase one through five five being released into the community as a as i stand here today i believe there are three who have completed face five and have been pla for in the community there are currently two persons in court in san diego county is the gradual mr heads who are seeking placement san diego county and we were department of mental health is working with the authorities there there is one other individual who is being ready ready to be placed if they don't engage in treatment the possibility exists that they could sell feel although that would be very surprising if they don't engage in treatment they are a recommitment the titian can be filed every two years and every two years again requires a unanimous jury for continuing civil commitment thus the it in some patients have been found to no longer meet the criteria after two years and have been released mr harrell by juries or by the judge i of being a sexually violent predator that is that they suffer from a specific mental disorder that causes them to be very likely to commit continuing sexual crimes if they're released they also must have anybody sexual no your honor i was just about to say that the predicate for that is that they must have previously committed two or more sexually violent authentic but this case before us today is only about that is true that is correct your honor the allegations set forth in this complaint do not rise to the level to defeat the qualified immunity defense in that they are clearly established that you such that some of them are conclusion reached and and those that are not conclusory allegations in other words those do not say we are subject to unreasonable searches well that without anything further the one sentence complaint do not rise to the level where the allegation violates clearly established law applicable to the plaintiffs i think that not only violations of the criminal amendments the six them and then the eighth amendment ex post facto double jeopardy but more fundamentally it raises violations under the present of due process clause of the fourteenth amendment which we know clearly people who have been civilly detained but who have not been convicted of a crime cannot be subjected to conditions that amount of punishment so that while there is an argument to be made for the criminal defendant the criminal  i think this the other side conceded that it could apply in theory but that it didn't apply in this case all agree and i would also argue that even with respect to the criminal amendments although it is conceivably a much weaker position i don't think that it ha in the case where conditions of confinement in the civil detention area are so cruel and unusual that they would constitute punishment i don't think that the that has been foreclosed by the supreme court but again i would concede that the forty the lemon is the better vehicle was rare exception the cases that this court has considered has have been a summary judgment cases we were we had concluded discovery in this case at the time second amended complaint was brought it was brought only to add one e the plaintiffs wanted to seek monetary relief frankly want damages from that was it's very important the class yes the other class of over for what started out to be four hundred spots seven hundred men now who are confined to the task an arrow i would point out that the statue indefinitely there's a whole process to make sure these are reviewed on a periodic basis that's true but to the extent there's no realistic opportunity for cure and release into the how do we know that i mean you're saying that for how do we know that some people are going through the confinement were not challenging the act were not challenging it on its face or as applied and even though our indefinite confinement claim is a small part of what we're arguing here i mean the main point is that these individuals are civilly detain incapacitate argument is that the conditions here don't further either of those last what they are what they are all for example well the complaint alleges for example that the conditions are more restrictive on privileges and a e retaliated against for choosing not to participate in treatment they are somewhat immune retaliated against arbitrary and punitive reductions in access levels they can't move off the unit unless they have a past that patient access level it's basically the sixty six hundred specially violent predators are just one part of the population at ash so they are treated in a way just by virtue of their their their status as sexually violent predators they eleven and not i think we've seen  than the other penal commitments and the civil commitments that ash and worse and prisoners and i mean denial of privileges the inability to access the law library strip searches excessive four point restraints forced medication in response to someone verbal e saying i don't want to go to treatment or i object to your mandatory disciplinary procedure what whatever the incident happens to be that the complaints quite detailed and i can i can refer you to  if you if you like but the basic point is that all of the restrictions and all of the reactions are based on arms that are used to have wished in law that these conditions are inappropriate such there are reasonable are to be treated as all other civil commitment if any rate that ignores the reality of why they're there but utterly ignores the reality of why they're there and how they qualif compared to people who haven't been convicted pretrial detainees they stand on a completely different footing and i don't see how you can just sever the reason why they're there and the process that got them there well which is what you're us the ability to proceed under the heat of your getting lost in labels instead of the reality of the program i don't i'm not sure who's getting lost in these these these are the cases that you're talking about relate to a completely different situation this is a long and complex process that's been set up by purpose and the conditions of confinement must be reasonably related to a legitimate non punitive purpose to the purpose of the confinement and the purpose of the confinement is to treat an incapacitated yes you can incapacitate them restrain liberty can you put someone in four point restraints for saying i don't want to go to treatment today arguably that's not reasonably related to the purpose of the treatment or the incapacitation it just flies all right if that line is correct that  really continuation of punishment for four of the criminal acts the predicate act then the eighth amendment would apply so i would think that right that really helps your argument if you if you if you go that route my argument is not that it's a continuation of punishment it's that you cannot ignore how they got there in terms of records regarding the way in which they are treated when they are there and i would agree except for stealing vs young the supreme court says that the conditions and the duration must be reasonably related to the purpose of the confinement and that's a fact we know as a fact that the purpose of the confinement is to treat and to incapacitate not to punish you'd for your clients well that's a good question i think that you do raise an important problem here which is that a lot of the deep policies don't distinguish between a in fact we are seeking to enforce state law claims in those three cause of action i think our brief says that we are not and that's a mistake what that means is that i think that appeals are correct with respect to our claims against the state officials for violations of state claims in their official capacities but in your opinion versus gardner and it would not bar our claims against the state officials for the state law claims i think in their individual capacities and of course  standard to measure what's going on yes with the fourteenth amendment standard equal protection and due process and shocking the conscience things like that yes in this case that would be for the civil detainee that would be correct the other side identifies a lot of practices that sound unnecessary to treatment with those qualify under the fourteenth amendment standard at least that it will be six stage they think they might very well have alleged facts that may violate a constitutional amendment that is possible in this court will determine that but what they have not done is alleged facts to support all of the claims that they have made most significantly those rising in the criminal we want the claims against the defendants in their individual capacities to be dismissed based on qualified immunity grounds for the reasons that the law of alleged that they have violated are not applicable to the pla deal with those but the qualified immunity and the claims against individuals for their money for the money damages is an unprecedented event for a statute recently enacted being in into not even the director of the department who is the defendant it is staff people and the executive director of the hospital i might also point out to the court that the police indicate they are not making an as applied challenge to the statute that is incorrect their complaint is filled with the term as apply and the as applied challenge to a statute to move it from the civil to the criminal gentle format has been disavowed first in hudson and then followed by selling in their briefing for this court they indicated that they are not using as applied they are using implemented hudson dot specifically with implementation saying that you cannot move a civil statute to the criminal realm of be easier to grapple with one summary judgment that's true your honor but the state should not have to spend time and money dealing with claims that shouldn't get past the motion to dismiss date and it is and burden on