we'll hear from you when you're ready is not mentally ill he's not dangerous he does not belong in a mental institution where he still is under their control and under the regulations under their rules he's been there for thirteen years now and he should not be there he said should not have been there probably from the beginning but i don't think you need to decide that a summary judgment case but i don't think the law on this is confusing this is not a gray area regarding the facts of this person this man he had i guess what's a remarkable case in the fact that he had a mental condition a once in a lifetime reaction to alcoholic abuse which you ation that's never reoccurred and according to every mental health provider that's valuated him seen him it's not likely to occur in the future counsel this is a substandard due process claim right yes now i  understand that several of these defendants and particularly i think mr shafer himself have advocated for his release and state court told them no to what extent does that take away anything that would make this like a substandard due process claim that shocking t conscience you know the requirements well of course there's a dual strand on this but with regard to the defendants and in the summary judgment records a little bit unusual in this regard there's not a single affidavit from any of them all of his efforts to be be released it doesn't say that we weren't part of that process he says that in his deposition but if they're in in in two thousand and twelve in this cross motion they they've opposed as an adversary his motion and in addition of that judge i think there's kind of a couple ways i will be supported his release though tell me if i'm wrong they put a conditional release conditionally so if you have a handcuffs in a ball and chain yeah you move remove the ball and chain but you still got the handcuffs you know if they were let him out of the facility i don't even have to live with this sister after after so and it still is today have a state court process where there's an adversarial system in the state court ends up ruling one way or the other why would the advocates on one side be liable if you disagree with the state court rule well i think that i think the way it's worked in this way it worked here is you have the doctors doing the right thing they're evaluating him they're seeing him they're saying we're we're evaluating whether he's mentally fit at this time and they're evaluating whether he's dangerous and they did they've done that throughout the his history there and then there's a committee and all these defendants are on this committee and what do we do with mr andrews we decide is a committee what to do with this and the committee says we don't want to let him go yet but but but but at some point the committee says we want to have a conditional release and the court still says no or they come up with a conditional release that says yeah ok fine but you states actually where you are and i think they happen syriana that the first first the court turns them down that two years later the courts as ok you've got a conditional release but you still get to live in the same specifically right which doesn't seem like my head me but but my e i think i think it's fair in a summary judgment record to say this that mr andrews should have been released unconditionally unconditionally there's no reason to for anyone to advocate that he should have these restrictions on him especially after seven years so if you look at this cross motion of saying oh well uses of words conditional release it should say unequivocally he's entitled to an unconditional release and every year this is reviewed it's only a one year release every year and every year they propose the same thing they're not willing to let him go in the constitution says they've got to let him go   i don't think you know i go back you know when i get involved they i can't go back and change what these state judges ruled but we can say look this is a clear cut case that he should have been released and he should  been released unconditionally and there's no good good argument that i've seen why they should hold him i mean if you go to when you're sick and you go to the hospital when you're when you're well they release you well you know that's maybe over suppose simplification but they should have released him there's no reason why they still have him other than other to punish him why the question should be asked of the defendants why do you still hold him you know have these have these conditions attached and what if they say because the state court said well you know that's the state court adopted their you know they've signed their or proposed order say these are the conditions that should apply to mr andrew so sure the court roberts put this put their signature on i guess a rubber stamp because it's unfair to the judge but the constitution trumps that doesn't  judge i mean this has to be i mean there has to be what the doctors are doing the doctors evaluating we have a person in a mental health facility who is not mentally ill why is he here just mentally ill but he's in remission and i think that's p t s d as i understand it it what you have it it's like chicken pox once you have chicken pox it's in your system you can let it go in and his case is kind of unusual usually put p t s d we hear about people who really can't get over this but he only really had a one episode in his entire life that triggered a very bad night in event but according to all the doctors  have seen him and i think there's almost almost a dozen they'll say something he's not this is not likely to happen this gentleman again so this is kind of very unusual in that regard is that it's kind of hard to swallow that it's just doesn't occur that often somebody has this one once in a lifetime event and you know just it's not the typical case let's put it that way so so yeah they did file across motion but were suggesting first they should never for a post as an advocate in court his filings should not oppose osa but it even and as latest two thousand and twelve they should have said he should only be released conditionally i mean that's saying i think saying he should be not be allowed to be unconditionally released and that is if i read the case law right that's wrong and that's actual civil rights have been deprived of him regardless of what the state court did his rights have been deprived of him and and that's really what the summary judgment records it only addresses one  dresses one court or one court action in two thousand and twelve say look we're sweet innocent we filed this cross claim and therefore we should you know we should not have liability well i don't think that's a fair assessment of what's happened to this gentleman and you take the record the light most favorable to him i don't think that's a fair depiction of what's transpired here i think if i was in front of a jury of what's in the one of the defendants run the stand you would say why didn't you slap him go why not just cut him loose i mean i know that there's a danger in that you don't want to be caught and i know in  were you mentioned that you know you talk about the future decision and and you were concerned about that you know the state saying having one proceeding in the federal government having another proceeding but this is not in a in a gray area that those things are not present here so that's my point is that there has to be you know the doctors got it right the doctor's got it right this is they're saying we don't need to keep it and they're putting that in their reports and nobody followed it in some ways got to say look you know there's no reason there's no reason other than a punish mr andrews why we keep him here in this facility so maybe i have procedural due process and we're not claiming that here we're claiming the substantive component in some usually there is outrageous conduct but there's also a dual strand we're going liberty and  that's where we're at as i read carson's it talks about there having to be a deeply rooted in the nation's history a violation of a fundamental right and it's implicit in the concept the border liberty which you referred to but it also seems to at least imply that it must be of such a nature that it shocks the conscience and if you look at the body of law the types of cases that shock the conscience they are truly the sort of things that when one would look at them and they would be completely outraged by it is this that kind of a case it is just you have a person in a mental institution for seven years that doesn't belong there that's outrageous that meets that  test that i think that's a that's a that's a case you know liberty interest were guarding a person in a mental health and in his deposition he said look i couldn't go to sleep i didn't sleep in there and these people coming in and beat me in the face and salting me in this mr andrews is was remarkable and in his state of so i think it is outrageous i think if someone is locked up in jail for seven years and they don't belong there that's outrageous well that's not much different than that so i think i think we need that you know reserve my time is very well as walsh will hear from you know may please the court counsel in the christian's case of the judge erickson just mentioned this court found that even though civil commitment has been characterized as a significant to prevention of liberty the united states  court has never declared that persons who post significant danger to themselves or others possess a fundamental liberty interest in freedom from physical restraint prior to two thousand and ten which is actually the date that we should be looking at here prior to two thousand and ten mr andrew suffered from p t s d active p t s d and was consistently found to be angry and aggressive towards staff and patients the reports that i've seen i'm not really sure what mr fleming was looking at indicated that he minimized his own symptoms he did not believe that he had any kind of symptoms whatsoever he blamed everybody else for all of his problems he was in he if he was not engaging in the treatment that was offered to him he voiced that he was the innocent victim he told them that the treatment that they were providing to him was elementary and was doing him no good he had no respect for the therapist and whenever he was given the back during therapy he would become intense and angry towards the therapist based on those those types of reports prior to two thousand and ten there was a finding of mental illness and a danger to himself or others that the test that they had to meet that's the test that they did meet so for the number of petitions for release that mr andrews filed prior to two thousand and ten they were opposed in two thousand and ten dr jeffrey klein get a forensic examination and found that he he was no longer in active p t s d and it was in remission and that he no longer posed a danger to himsel others from that point forward in the department of mental health filed petitions to have him conditionally released the conditions were necessary i know he does not believe that they were necessary and he and mr franklin provides no laws to say that them asking for a conditional release is somehow a bio lieschen of his constitutional rights when looking at your perspective what's the closest case our missouri's version of carson's which is very similar that they wanted that they did not believe they should have to have conditions on their release that they should be able to get out but carson's in that respect is probably the closest in the circuit what was the reason for the conditional release as opposed to unconditional the conditions were well the first one and the first time was the condition without this was sorry was released without discharge  he was still staying at is that even mean that that means that he's still living at what we refer to a slip break st louis psychiatric rehab or so in what sense is he released he was released he could leave during the day go to his job he could you know he wasn't required to stay on the on the grounds he was staying in one of those i don't know if you've ever seen flip brick it has cottages out in front that are not you know not right behind a fence but he lived in a kind of previously he'd been confined to the to the actual facility all day right so this allowed him to go work so where exactly and then it was i believe it was three to six months after that that they amended the petition and he went to live with his sister but the end that was in two thousand and twelve that were those petitions were in two thousand and twelve however the first time that the department mental health filed a petition for conditional release was in two thousand and ten not two thousand and twelve and in two thousand and ten the department was the only person the person representing the partner was the only one putting on and any evidence mr andrews attorney did not put on any evidence only the department so based on those things i don't see how he can find that this any of this conduct was egregious in any manner whatsoever just because we don't agree with how mr andrews believed he should have been released and as time has gone by the conditions change and i don't know what they are currently and kind of stopped getting the bridgeport's once we want summary judgment but they would change as they changed as he went through this he was initially committed in two thousand and five and as he improved a little bit he moved from a very very secure facility to a less secure facility to a very you know slippery which is not as secure as any of the ones at fulton state hospital the same is true with the condition releases as each year goes by if not like the same conditions or are put on him and the conditions are a lot of things like going to kept i'm sorry i thought you said how many since the conditional release those from the beginning yeah three from two thousand and five to two thousand and seven was one more and then two thousand and ten and then two thousand and twelve si i would say eleven or twelve and this is still under court supervision in effect in effect and he he reports he he they make sure that he doesn't there are certain conditions that this probation a patrol what was the basis for the opposition to release before two thousand and ten the fact that he did not meet the requirements for release which are that he is suffering from a mental condition that he was a danger to himself or others he did not based on the the psychiatric reports through his both his treatment team and the forensic examinations that he would get every year he was not meeting that standard in how long was he going and what way was he not meaning it because he was still suffering from a mental condition and was a danger to himself or others the arguments been advanced that p t s d is a mental condition from which one may never or can never recover and that and that is in fact is i in a controlled environment with no alcohol and drugs he doesn't have those psychotic breaks to use just waxy insight and it's difficult and is resistant to the treatment modalities and angry and a very angry i mean i he parents had a very even without the alcohol and drugs he had a very bad anger management issue while he was and that was the concern was that without his anger management and greater insight and some ability to maintain sobriety he p yes so once he once he did meet that test like i said they they move forward with having him released and they have minor tim monitored him in the meantime and again the conditions are conditions to help him thrive in the in society as opposed to any kind of punishment to him if as you said p t s d is something that's going to be with him in the rest of his life which means he has to keep up with their a p with with making sure that he's not he doesn't falter on the drug issues there's other things like keeping a job and there's a list of them and i can't remember  even though he got the last release go ahead he said that he is a defendant he is the regional executive officer in the manic was the c e o it's like break there there is a woman whose name i don't remember who was a nurse in ministration and there was one other person who was but they were all in administration ok thank you very much ok does that help but i i believe they as the regional executive officer not as a treat a treating physician and also getting released yes he did get him none of it as i said none of that none of the department of the fact that the circuit court said no they probably shouldn't have said no i think they should've i mean if they if the only reason that the circuit court said no was the prosecutors were objecting that probably wasn't good enough but that defendants they didn't do anything based on that there is no constitutional violation here and if there's no constitutional violation here than these defendants are entitled to qualified immunity and we would ask that this court affirm the judgment of the district court based on the findings that judge autrey me thank you thank you m enters take place and that took place four years later took him four years to get around to following that court order in the meantime in that four year period i believe he filed four separate requests for release and it wasn't until two thousand and ten when they got this independent evaluation that said mr mr basically says that mr rangers doesn't belong in a mental institution that's the first  time that the court took notice of that and i think the court's opinion said that he's entitled the condition will conditional release but he's not entitled a conditional release at this time which i'm not sure i know what that means  maybe maybe somebody else can figure that out but there's nothing in this record from a qualified mental health professional that said this person was dangerous or he was mentally ill in fact he went in the institution with a diagnosis that he was not currently mentally ill and he was not a danger and that's the way he went in and that's the way he maintained his head and i didn't understand how he can record reflects in any way that he was not dangerous i mean the it that he was dangerous or that he was not mentally ill he was not and there was nobody they didn't even give him a single pill and in the thirteen years that he was there i think that's circumstantial evidence of something they only way i know you treat this is this by giving them psychotropic medication they didn't even give him individual therapy he went to group sessions but after over time he didn't really like him because he used at some point he started reading the case law and started thinking why do i belong here and i think that would make anybody aggravated but i fact that you're you're complaining about going to this group or that group doesn't mean you're dangerous it just means that you disagree with your placement and i don't think this too should be equated and i would ask the court you to review the record in the light most faithful to mr andrews and find that he was not mentally ill from two thousand and five on and find that he was not dangerous from that point on and decide what his constitutional rights are as a result of that thank you very well thank you both for your arguments cases submitted and the court will file an opinion due course that concludes the arguing calendar