l please proceed here ready thank you your honor may please the court my name is eric rowe i represent michael d her jr the one in this case this case boils down to really a single issue whether the district of in for this reason that decision must be reversed section one thousand any three is plain in its terms it applies to every person who cuts subjects or causes to be subjected any citizen of the united states to the deprivation of rights privileges or immunities secured by the constitution those are the two elements of section one thousand nine hundred and three a person in causing a deprivation of rights the district of columbia is a person and the district of columbia is liable to mister hurd if it caused mister hurd to be deprived of his constitutional rights under that statute causation is all that is required there is no subjective requirement of malfeasan municipality causes a person to be subjected to a deprivation of rights the court concluded that that quote plainly imposes liability on a government that under color of some official policy causes  violate another's constitutional rights in this case the district of columbia caused its employee mister siebert to refuse to release mister hurd on october nd two thousand and eleven and the district of columbia caused mister hurd be kept in jail for an additional two years since the district of columbia's policy in that regard is even set out in the district brief submitted to this court district of columbia says when a court orders an inmate released in a particular case officials must check all records to determine if there is any other charge or detain or requiring the inmates detention and if so must hold him at the predestination here it was not to talk about whether this policy was constitutional or not but i thought i had thought the whole issue in this case was the fact that they have that policy and it doesn't include pre liberty deprivation without process to occur in the prior opinion of this court was that there's a procedural due process issue here correct right and i think it has been spoken in terms of deprivation without prior well when we also have a process as well because under the th amendment you can deprive anybody of liberty without not understand that but and it seems to me is still tied to the fact that they have no process associated with the records check in detention because recently that process would allow them to discover if they agreed with you on yourself and in process argument that oh i'm not was banned in this record here he in fact does not need messy some mechanism for checking to make sure the computer records are malad right in this in this case they were presumed to be though i mean they in when they found this prior sentence they assumed that the parsons had not been served and just kept him they did not permit they did not allow him as he was entitle to be at this point in time there was a superior court order requiring his release in he had in fact served his parsons in full so you're not i don't understand what the procedural due process is adding to your case then because if if your view is that they have a policy that says any time somebody has an then he's going to be held what does more process get you because that's that's just what they do and what would more process do well if it rings and in this particular case if m hurd had been afforded the hearing then he would have been able to present his case and say i have served my prior sentence in full and in fact when he was confronted with the parson's they're in jail on october  that's part of the problem here in the court but the specific question that is before the court at this point is whether or not the district of columbia can be held liable for that in the press so what would they additional process and what would it one of them got new as an opportunity to make the argument that the district was compelled to treat the sentence as having been served because too much time had elapsed well st st your honor at this point i mean they didn't have the authority to keep him to begin with prisons or somebody else to say this gentleman has two more years to serve on incense and it could have been litigated at that point instead they just kept him but when you said they didn't have the authority to keep him that's  that not the substantive argument that that they don't have suffered have authority to keep him because he's been out for too long and the sentence should have been treated as having run while he was out thank the fact sorry ronnie that even absent basked the d c jail didn't that jurisdiction were to the district of columbia superior court when you look at the procedures that were adopted in the district of columbia for cre release there is a provision in there that talks about the release authority and the not include the d c jail and so they need to go to somebody else for authority to keep him under those circumstances and so ultimately the question then is you know why did they keep him in the answer is that the instructions that the district of columbia had given to mister siebert told him not to let him go because the court caroline and salim half of the district of columbia the question raised in this case is whether under now the district is responsible for a low level employees decision to reincorporate mister hurd based on an uncertain misdemeanors it's bank governed by what the supreme court in congress is thompson called a longstanding rule incarcerated for twenty seven months that requires a lot more than a single officer looking at some records that well your honor i did force of the district of columbia well your honor there's no evidence here that superior court said here was that it was not mister seibert or any policy really of the department of corrections that was responsible for the detention it was the court's order directing a misdemeanor sentence be served which has been your records make mistakes all the time and in fact in this particular case he filed a hate me as petition in the attorney general of the district of columbia and he raises due process are you not me turning general i'm just here to columbia filed a br that said no he stays in jail and the attorney general policy for purposes of who is detained by the department of crime making a decision that the district of columbia believes of those persons and say in detention and the attorney general said he stays in without having gotten any process well your honor i respectfully i would i would push back on that i mean by the time we're in the heaviest process he is getting process he's having the opportunity to be heard not district's position well you are so so at this point we're talking about the substantive constitutional question and well i'm just talking about the procedural due process question well to well i think what we're and say go to jail for twenty seven months without any process and he checks to see if the computer is accurate if it's been updated if the records are accurate if this person is the same person you said that he single handedly incarcerate and i just find that i think it takes i think it takes the district to detain someone for twenty seven months in a prison cell and it's confirmed chaired by the fact that the attorney general weighed in and said no process for you to stay in jail well your honor i have two responses to that one is substantive and one is procedural also on the substantive point in terms of treaty depravation process if we're talking about procedural due process before deprivation that constitutional alleged constitutional violation was already complete by the time we're in the he s process right i mean he's already been incarcerated without deprivation no notice and an opportunity to be heard allegedly in terms of the substantive due process as well you know by the time a court by the time the superior court says on the record after considering briefing you need to stay in and the superior court i don't believe that it was a long period of time your honor but in any event the procedural point here is that mister her has never argued that a policy maker made the decision to keep him in prison and there's no evidence in the record of that he has never argued nobody said he said there's this record thing here and he just got thrown in jail because of the records without anyone checked in to find out what was really going on and it's that that is not the district's policy and i think it's helpful to to break this down into different furious of menow liability to trace where the policy would be coming from right under baker of this court set forth a few different ways that you can prove the existence of an unconstitutional policy in the st to see explicit signing of a policy by the government of the constitution the as we've been discussing this it seems the court thinks that there is some sort of explicit written policy that whenever someone has whenever there's a record that indicates that someone has an unexpired portion of a sentence we just pretend we just detain and continue detain him at that point the person who is implementing that policy is just implementing a policy that exists and so the question in my mind is does that policy exist and then as as mister o pointed out in your brief here in the paragraph the talks about it was a policy that just says that it went to court orders an inmate released  so must hold him at the d c jail is that not the policy so if you read the sentence it says must check our records to determine if there is any other charge for detain or requiring the  detain or is not an unserved misdemeanor sentence the charges in this case have been disposed of by the court this individual had been sentenced and everyone agrees that there was no detain or and i think what your argument that while there is no d c policy on this we just leave it up to individual people at cyber position to just decide what to do and then their decision on this issue which seems pretty significant just takes on its own operative force and that just in such a way becomes the result but that is our position and obviously there's a nd question as to whether these kinds of situations are so obvious that the district needed to have a policy but there certainly is no written official policy mandating that he do what he did and he said this in his deposition a j two hundred and forty five he says i don't think there was ever anything official when situations like this or else and  argument to me just record it was also this very judgment mr said i would have no choice under district policy but to hold him in the d c jail not under district policy your honor under under the court's order under the court order and after he is hearing the superior court confirmed that i'm going to say what to do if if he's being held on something else and someone checks a computer and sees that this thing is still out there and should we have a process to sort out whether it's still view they the department of corrections have an obligation based on that prior order to hold him until the court makes i'm ready to shovel sorry i'm trying to find the page because the page numbers are on top of other numbers and return with i understand in the summary judgment argument there was that he had the census answer but that's a completely independent say and he darn well will serve it i don't care how long he's been an out i don't care if there's been confusion between the government means actually spent that time under supervision the substantive due process argument i don't care if there's any mistakes if this thing is still in the computer system we've got a lock and that's not what the original order said in any way shape or form it was  it's stated and followed in some even if it's verbal but i guess my question is do you disagree with the statement there that he had no other options given that they're if it's the court order that has that imposes the original sentence and the existence of a court order that and impose the original sentence as to which some of it is on served leaves the individual making that call on the ground with no other options then isn't there a policy that says that as long as there is an unexpired sentence the individual remain detained well your honor i think it i think the question then is who is policy right the department of corrections had no policy on the scor trial counsel was referring to because he thought that the court order in and of itself did it sufficed i mean obviously in her why did so far this right the court order itself meant that when there is a court order in place then there is no option other than to keep the person detained that that was what trial counsel i believe was trying to convey this court heard one seems to indicated that that is not the case but at that point we're talking done i suppose i mean he would have had two alternatives he could have released mister hurd which again you know there there is risk associated with that  well i mean again at the time there was simply no no policy in place and i would know too that even this court has agreed that not every irani asli released prisoner is detained i'm not trying to get to that question i was trying to understand what the district understanding was as to what should happen and the situation i don't think in terms of district policy that's the very point i don't think that there was any specific guidance or policy as as to what should happen because the situation was simply a fairly extraordinary is very rare based on the was i believe mister seibert testified that he was shocked when he saw that in the record and so the question if i think were in the realm where there is no express policy there's no evidence in this record of any direction from a policy maker and so then you're either in the rd or th prong of the test set forth in baker where you're talking about is there is there a custom or was there deliberate difference and i would submit that there is not sufficient evidence in this record to demonstrate a custom of really incarcerating persons who have not served prior sentences because they were a mislead released i mean there are two things that i would know the st is that it has to be the final coliseum making authority in that area of the city's business the attorney general simply does not run the department of corrections the nd thing that i would say is that this ra mister her i mean perhaps perhaps my colleagues should have made those arguments and then we would have had an opportunity to respond to that but quite frankly you know when the district is ordered to respond defensively in a lawsuit to allegations to say that that enough itself is sufficient to hold the district liable under menow i'm not aware of any case that says that i think it would be extraordinary i think it would be expressionless for mary to make that whole thing with with no argument in the record hold that the attorney general's opposed to the director of the department of corrections or the city council is a policymaker and what if there's a dispute in fact really about the nature of the policy written  suggested well maybe mister seibert was more than just nuts records agent in hand fact had the discretionary authority as you suggest them to petition a court for clarification of his status that seems like a pretty you know the nature of records and there is this are not mentioned anywhere here and to mister cyprus credit he did go ask his supervisor to the chief of the records office but again i mean have any more authority to make a decision well she's the supervisor but no she's not a policy maker she doesn't have to worry that's i'm sorry that she's not a policy maker so she doesn't have the authority to find a district where the policy you have the authority to release and say never mind that or warrant it does it mentions that and the distinction that in district of columbia is trying to say here is that there is some substantive difference between a charger warrant that permits them to open to hold a prisoner where to do and it is true he had no option this is what his job was his job was to check the records and if there was something that prevented mister hurd from being released his job was to keep mister hurd in jail and that's what the policy ultimately is here the policy is something that causes the employees of the district of columbia to act in a certain way so but there is no there is no charge or detain or in this case right now you're right so so if the let's just suppose a world in which there was a policy express even read and policy and express written policy only income only refers to charges or detainers then you have an argument that there's still no discretion as to  dint of a court order that was on the books as a two thousand sex but the particular policy that i'm hypothesizing that refers specifically to charge or detainees wouldn't cover that situation you need something else that covers an old court cyber had no discretion because there was a two thousand and six sentence by virtue of court order and i hypothesize in a world in which there is a policy that tells someone in cyber physicians you don't have any authority decision but here he didn't have any such discretion in his obligation was if there's something else out there that requires you to keep it you've got to keep it and what you get not from him and that's that's what the city council said and that's what that's what  you know and what it says is the department of corrections shall process and release and in may from the central detention facility within five hours of a court order granting hears of her release unless the inmate used to continue in and that's and that's what we have here we've taken the position that this also articulated the policy of the district of columbia because what he said was in the court's view in circumstances like this you should keep him and let the court decide  so i think it's hearing transcript page thirty eight yeah and he serves in the courts you may have an obligation based on that prior order to hold him until the court makes a determination as to what should occur it's not within the department of corrections purview how does that help you that says it's not a problem if that's an articulation of what the policy is in the district of columbia in this is a spirit court judge in the district of columbia have any option to do anything other than what he did then it's the district of columbia that caused him to act and that's the issue under my belt is whether or not what is well because the question is is something that the district of columbia did as an entity require its employee to act in a certain way if the answer that's yes then the district of columbia's liable if the answer to that is no in the district of columbia is not in here it was the official policy of the district of columbia that prisoners were to be held and that the d c prisoners you know were to serve their misdemeanor time in the d c jail and so i think we have that party argument let me just make sure that my colleagues on have additional questions and you know that's ok thank you counsel thank you to both counsel will take this case under submission