under the fourth amendment in the due process clause violated by both federal agents and local agents mr ortega was serving a sentence in home confinement when he was seized and taken to jail by the metro defendants when he was seized he was not allowed to provide proof of his citizenship and therefore was denied even the most minimal amounts of process this was on the basis of an ice detain or that was illegally issued by ice agent cloyd based merely on the fact  birthdate were similar to those of an illegal alien who had already been deported however we cannot even verify this since we have not had a chance for full discovery and have not been able to see the detainer that was issued the district court can only dismiss a complaint if it's clear that there's no violation of a clearly established constitutional right under any set of circumstances could that could be consistent any set of facts that could be consistent with the meetings you have seen or how do you know that the and i'm just trying to figure out i get the idea haven't seen it so that puts you in a difficult spot but i'm trying to figure out how you can file the plane i mean i realize there was a mistake made but isn't it possible it was a completely innocent the seizure i'm sorry when did that when was that disclosed at the time of the seizure i know you're already have that information i guess what i'm asking in i believe it's in the in the federal defense brief it says that it was a mistake this is something you were going to pursue in discovery before the case was dismissed is that right yes your honor this would be something we would get to see the specifics of the ice detainer if we were allowed to pursue full disco and the court would know the contours of the mistake and whether it was reasonable because we'd be able to see what different if any there was a name and what difference if any there was a date of birth yes your honor the specifics of how how unreasonable it was would be revealed fully and scot free in the meantime all reasonable inferences must be drawn in favor of the plaintiffs and the district court judge i just i'm just trying to get my arms around this because they say this in there might just reflect that they're giving you those inferences you know i'm saying another words of the complaint says which i think it does say that it was similar but not exactly the same as the name if they say in their brief they repeat that that doesn't prove it so that just proves they're doing what they're supposed to do in the twelve b six brief which is except the allegations is true well i wear the district just trying to figure out if this is if the theory of the case is well there must have been a mistake so we know there was a mistake because your client's a u s citizen but i'm trying to figure out if the theory is it was a mistake based on two people with the same name in the same birthday which is one type of mistake or it's a mistake where it's two people with similar names and similar birthdays just don't like and i guess right now you probably don't know which one it is we didn't have we were not able to look at the detainer and see how similar or how different the name and birthdate were but ultimately you know whatever difficult the facts or figures under the law everybody's immune while you are in that's that's in the this context of where those probation settings or where those because i mean you would agree there there would be due process problem if the way this worked which is i guess the way it normally works if you move from one  another because then you're deprivation of liberty would be that different here the problem is home confinement is different from yes your honor it's the changing conditions of confinement is right how extreme that is between home confinement and jail if that's what do property due process with interest right the due process liberty interest would be remaining in home confinement so the violation was removing him from home confinement to jail with you know a process cases that establish this point are they home confinement to jail cases or are they probation to jail cases there are there is a case page of the hudson from the seventh circuit that is specifically about home detention the other cases are analogous but not i'd not exactly h detention they're a work release program two for work release program another one from an electronic supervision program and another one from prepare all conditional supervision however page three hudson does specifically address home detention and the removal of a prisoner from the home detention to jail without without adequate process and from the seven so the seventh circuit recognized that there is a clearly established liberty interest these were all circuit they all addressed non institute being moved from noninstitutional confinement to institutional confinement they were not all exactly home detention programs but they're the the the legal analysis is very  similar and that's what the eighth circuit found determinative in edwards to be lockhart is the is the fact that the prisoner had been taken from an institutional confinement and released to sent back into society so it's the difference between being confined institutionally and being confined at home also the metro defendants violated mr ortega's fourth amendment rights by seizing him unreasonably  a seizure occurs when there's intentional interference in a way that would cause a reasonable person to submit when the metro defendants came to mr or take his house and removed him in handcuffs did not allow him to available but a nice detain or a but i mean the promise of it is the person already under some restraint yes and i'm just saying what's the clearly established authority that's up with or through suspicion whether it's probable cause what are the rules here the fourth traditionally held that there must be reasonable belief which it in order to which is which is analogous to probable cause so there is a problem cause first issue the ice detainer and there had to be probable cause for the matter defendants to go in and and seize mr or take and that wasn't as doubtless what if i take you would say you would have a even a fourth amendment claim if he was being moved from one jail to another so everything else about the case is the same but he's being removed just hypothetically from the jail to a federal detention center or some other jail but the point is he's going from one jail to the other then this kind of still a mistake and he still may still made a mistake but you another one jail cell you're seized in the other jail cell you're still sees so that would be harmful to the fourth amendment argument and i know that's not this case but i'm just trying to understand that background point yeah well that would be can still i mean would depend very much on the circumstances of their would they could still have they've had people have brought up due process claims from being moved from prison from one person to another but it's just what's at issue here is the fact that mr or take it was at home and this question of both of you so this problem one there is clung to my sense of the case and middle will learn a little bit more from the defendants is that they assume when they're doing this that normally it's going from one jail to another minutes the program itself makes some sense if someone has been put in jail i want to run through and see if they're legally here and if they're not legally here that's a very good way to enforce the immigration laws why not enforce them against people that are violating the law so it seems like that's the point of the program they're assuming that normally they're taking someone from a state jail and then they're going to hold them in this other facility before they're released in order to check to make sure whether they're an illegal the mistake they made here and it seems a problem one maybe you have a pretty good point both under the due process and forth a man who claims that we ought to say listen his support this program is fine but you have to be careful when you're implementing these things two settings setting one don't confine him to jail because that's a change setting to they're just about to leave jail and this detain or forces them to stay in jail forty eight hours longer and in those two settings you better be careful because otherwise you know that that's where there's some real risk of violating the individual's constitutional rights so that's very helpful to you on prong two i mean prong one but i'm calling to the problem is it seems to me that this is a pretty new area of the law i'm just not even sure they were aware of this problem because so often it's normally one jail to another jail where i just don't think you've got to due process or a fourth amendment right well your honor and i stayner is  the information ice has and say ok this seems like a good idea we better hold this person a longer make sure they're not in the legal immigrant yes your honor but it's not required so the matter defendants can't they can't rely on  ortega was already in custody there was no reason to move him to a different type of custody because there was no there's no governmental interest in moving him to jail because he was already in custody and being detained  i guess this is the only second time about us who you are i'm sorry you're here i'm steve durham and i represent the metro defendants ok i say this is the only problem the second time in my life that i wish i was a third year law student at the time and i was entering that stage and you know to be on coding with the council but judge let me talk about the issues that are here in this case and that is whether there's a fourth member violation and whether the due process violation so the fourth amendment i mean we're talking about individual who has all of his liberty has been removed the freedom of movement has been taken from him he's been seized i mean that's that's my opinion about it ok but you have to agree it's a little different being quote home confinement where you can go to work church other things versus jail yes i don't disagree with that and i don't think that makes much of a difference for the fourth amendment analysis is his opinion because for the fourth amendment to occur there has to be an unlawful seizure and if you've already been seized by the state i don't think you can be secondly seized i mean let's look at some other examples of when that occurs i mean for example this court may issue or a district court ma i think on probation you have a little bit of a gray area there but i don't probation again the individuals i would just look at the cases that i've been referred to and cited in this particular matter none of those cases where individuals were  dead if i was having a liberty interest also had a fourth amendment claim i didn't see any of that occurring and i don't know that the fourth amendment protects that circumstance either i just don't know about that well then let's go to the due process claim surely a difference liberty between jails fine or probation you have certainly i you know i have to agree i'd much rather be served my sentence at home than inside the detention facility i've been in a lot of them and i would much prefer to be at home ok so so you know i get a feeling that you know i'd rather are feeling like a third year law student you're agreeing with her well i agree that there's a difference in feel and i'm not so certain that it's a difference in protection i'm not sure that the there is a recognized protection and the liberty interest in that i mean  that case looking at whether or not in vigils on work release had a liberty interest in remaining there it analyze page and other cases it really did a good job of circling all the cases they could find addressing this liberty interest and came to the conclusion that where we are and that  no one has looked at the specific example that we're looking at and that is is an individual who's serving a sentence is actually serving a sentence are they given a liberty interest in the place of confinement so i don't think it's been you know certainly has been you know found by any other jurisdiction that i know of to be a place where you get a liberty interest in remaining in the case you said it is not in the record or so it's not your honor i do have some law out there supports your argument yes your honor  yes what about her point that detain her on like a warrant doesn't require your client to do any well i mean does the war require us to do anything does a order of personal appearance require us to do i'm not sure the required the requirement is the is the issue the question is what did they do and was it on reasonable i mean if it's an order let's say it's a mental inquest warrant and they take the individual in would that be unreasonable they're not required to with let's say it was a civil let's say an individual being held as a material witness and they take a minute and let's say the individual and otherwise you get a arrest warrant you're supposed the police get arrest warrant they're not allowed to say well it's thursday i'll do that and there is no i gotta agree it's command the command warrant commands tell me to she's making the point this is on like an arrest warrant so i saw what she's trying to say is that prevents your clients are saying hey we're just following orders here  make is your clients had a duty if if so there was in some information front of you indicating that this was the wrong person they were supposed to do something about it they couldn't just rely on the detainer so how do you respond to that well first of all i don't i don't know i mean the detainer itself i'm not sure reason a correction is look at detain and say that's different from arrest warrants we treat that differently and secondly there's nothing that require them to individual protest all the time when they when when law enforcement officials come to them say i have something that if that pertains to you and they would say well that's not me or i didn't do that or here's my receipt i paid for that so the reason a correctional officer in that position is looking to detain or issue from a  body i hear you on that point but like i said a little surprise at the average police officer if told in and arrest warrant or detain or situation you've got the wrong person that's my brother that's my cousin that's not me and you put something right front of them the average police officer says hey sorry i think it's you we're going and we're moving on well i think again i'm not a i'm not a i don't represent law enforcement so i don't actually know what the police do but i do know from other circumstances that i'm not sure how they're going to make the determination whether the documents agree in presented or the actual the real documents i don't know how they do that don't know how they go behind the warrant or behind the detain or and make the on the spot determination and of the hundred dollar bill came out today a new one came out i don't know if somebody gave it to me whether i know it was real or false i don't know how to determine that i don't know how the reason why a correctional officer or police officer makes the determination on the scene that the documentation presented them is documentation indicates they need to go away you know again individuals that are on home across aeration or any other confinement outside a detention facility you know they may not have any reason you know to do anything other than abide by those conditions and stay where they are but occasionally and we know evidence tells us that individuals who know there's some other process out there somebody of the jurisdiction wants them then they make decisions that maybe not the best decisions about whether or not to remain where they are and so this individual and members of this organization who has a duty to supervise these individuals and keep them under watch they made the determination that was a better idea to put them in a closer area where they can be watch more carefully and i don't think that's unreasonable and i don't think the case law suggests that would be some sort of violation of individual's rights are you guys divide your time you w probation seems pretty clear this is a probation case as watch this keep the focus on trying to for a little bit i mean it's not a fair analogy analogy it may be but an analogy isn't enough for agent to find an agent cloyd knew he was violating a clearly established constitutionally protected liberty interest all he did was issue the detainer that says before you release this gentleman hold him for up to forty eight hours for ice to investigate whether he should be in essence arrested detained by us before you change the conditions of his detention to detain or says hold him up to forty eight hours not including weekends and holidays for ice to determine whether we need to come get him here you know what he was not held any extra time the forty eight hours didn't come into play ice in fact never detained never arrested never came and got him as it turns out how how troubling would it be i mean let's just say for the sake of argument you're right i'm prone to but that i'm pong won you know it seems to me ice in local law enforcement are not distinguishing between the classic detainer situation one jail to another where the program makes a lot of sense but that they ought to be paying attention to this possibility that some of these folks are in home confinement or the asking someone to be kept forty eight hours longer than their prison sentence and it seems like those two scenarios the constitutional rights are very different and i guess i have some sympathy for plaintiffs point that in those settings you're not allowed to do investigative detainers when they there's a material change in liberty well i'm going to if you don't mind your own i'm going to ignore the extra forty eight hours because that's not before the court i can tell you there's advised by metro that this individual was in home detention then perhaps that concern would have been heightened and perhaps agent cloyd might have done something different but however the but why is that or take his burden this is my whole point the whole reason i think there should be a problem want to now is to have icing ok we've got to be careful here we either have detainers that say this only applies if it's jail to jail which solves the problem entirely or they say th applies if it's jail to jail but you know if it's not jail the jail you need to make sure you got the right person even if your honor is correct that ice might supposed to be taking that we're no there's no clearly estab circuit decision that says fine you're right this was not clearly established but as to problem one we think plaintiff was right or at least was right at the motion to dismiss stage and i'm thinking that's useful  swear i student know in this case that he was in home detention that's why you went under pont to but how could i speak held to a standard in the future ice doesn't issue detain detainers for anyone they say it's a jail to jail jail the jail thing you can't have a quote investigative detain or but if you know the name doesn't line up with the person you're issuing this detain or for and that's what we have to assume based on the complain you know you could have rejected the detainer could have refused to act on it it could have said ok well before we let him out of home to tend before we officially end his his detention will let ice snow and ice can determine what would happen in this case i think it's clear because of what did happen i said by then had found out i discovered that he was not the individual that they thought that he was not subject to ice arrest he was not subject to removal and so did not ever detain him as far as concerned ice never detained him ice never restricted his liberty ice never did anything other than it's really thinks of these requests and it doesn't bother them if local law enforcement doesn't even do it do it i kind of doubt that well there's a tenth amendment issue that i'm not sure that ice can do anything other than request yana ice is a federal government it can't tell state law enforcement or local law enforcement agency you must do this or or what happens you know there's as i mentioned the tenth amendment i think would prohibit such a such a finding and again that's that's what other cases that have have looked at this exact issue have found spending well the again that on the face of the detainer it says it should not change that that the issuance of this painter does not change the classification of the of the individual of his of his or her detention and that it's issued so that ice may investigate whether to take further action but if that doesn't change the classification you know you saying the way what that means is local law enforcement should if you're going to do anything just keep him at home confinement it says that do whatever you local law enforcement believe is appropriate and accurate under the circumstances r the detainers in the record no doubt i believe it is although i confess to not being able to tell you that right off the top of my head as i meant as the court has as recognize this is a twelve b six so there was no you know in the record yet well if they're walking if the case proceeds back then there may be a record produced but as of now the district judge found that that agent cloyd was entirely qualified immunity i believe there's no reason at all for this court to find anything to the contrary district court found that the ice age made a reasonable mr correct yes or no and the district court made that decision based upon reading the complaint that said the name in the birthday were kind of different but that was a reasonable mistake similar but not identical the pleading says and why wouldn't the fact finder after discovery have an opportunity to look carefully at just what the differences were and whether or not that's a reasonable mistake again as jones for a black or something sure more or less difficult although the district court did not cite it my think mally view brigs again provides provides the support for that that qualified immunity defense provides ample protection to all but the plainly incompetent  has pled he had no idea that the mr take it was in home detention and two he could not have known or even presumed that even if you were in home detention that he would be taken to jail and third even if you knew we'd be taken to jail from home detention that that would have amounted to a counselor constitutionally protected liberty interest a private so i just made a mistake you know the name was close at work and at best he made a mistake or i guess at worst for our case at best for mr ticket he made a first of all like to point out that the federal government did make a statement to the press that said that they were that the name and birthdate were similar but not the same additionally page is a case about home confinement the prisoner was sentenced to six months of home detention that may have been a condition of probation but either way it was he was being removed from home confinement to jail and that's that's the similarity of that case additionally there is a difference between probation and serving a sentence right yes your honor i mean that that does seem to be relevant the plan to stage terms i mean what unless there's another case i mean are there other cases i mean what's your best court of appeals case that's someone as part of probation he was i don't have the case with me on it but the other cases are work release programs are trying supervision programs prepare role conditional supervision these are all instances where the person was in fear you get a ticket to discovery and then you get to get the detain or find out what happened but here i mean you can plead yourself out of court and you don't write the complaint but i mean if all it says is there are similar god identical and knew they're similar not identical i'm not sure how that gets you out of the mistake area i mean i don't think that proves it was reckless i mean i think in a normal detain situation normally this would be quite legitimate to have people with a similar name and birthdate to investigate whether this is the same person why are the deal to jail normally that would be ok so so why why why was judge tabor wrong on the mistake point given the way the complaint was written because you get to write the complaint the way you want to and you can say it was reckless but that's not in there well your honor it normal ice procedure the normal procedure being ok the best cases where everything's the exact same then there's nothing to talk about now the question is what do you do if there's a minor discrepancy between the spelling of name in your birthday and i don't think the rule is that when there's any discrepancy at all they stop i think they are about to investigate further and i'm sure it's ok for them to do this in a jail to jail setting the problem this would not jail to jail but chloe didn't know that and that's where it starts to look like a mistake in kind of lack of clearly established law well i would agree that the measured events are more a lot like are there more responsible in this case rights the matter of a reason but also for the metro defendants a reasonable officer would have at least allowed him to obtain his id and show them opposing counsel mentioned that they shouldn't have to validate identification in this case they didn't even let him show them his his the birth certificate or his social security card so the very most minimal amounts of process of verifying that he is who he says he is was were not  were not taken but what if what if their state what if and again this goes back to the state thing what if their view is there's just no difference between home confinement and jail to jail so are the words if you take the exact same case that they visit mr  a jail cell he says hamma this person they said sorry we're just doing it i think you've already agreed that would not be a problem because it's jail to jail so this the only reason they made a most mistake or you violate his constitutional rights was that it was home confinement to jail but that's good takes you back to lack of clearly established because of the circuit court cases that we cited it is clearly established that there is that's what it all comes down to that clearly established liberty interest in remaining in the sentence he had been given he had been sentenced to home confinement and he had missed ortega had a liberty interest in remaining in home confinement so moving him from non institutional home confinement to jail without due process violated both his due process rights and his fourth amendment you thanks to both of you for your helpful bruce and oral arguments congratulations to williams and mary you're obviously doing a fine job so thanks for that excellent argument and we'll work through the case thank you very much case will be