the final case on the calendar almighty supreme born  appendix that the evidence shows that the defendants no mistake in were simply trying to fulfill their professional duties the district court's decision denying hall fight immunity runs afoul of the recent  supreme court decision white vs pauli in which the supreme court reiterated that qualified immunity protects all but the plainly incompetent and those who knowingly violate the law if it runs afoul of that case further in that white reiterate that qualified immunity attaches when officials conduct does not violate clearly established rights you think it wasn't established that pretrial detainee not subject to punishment that is certainly the standard that the court used in white goes further to state that that i'm asking you how you think it wasn't clearly established that that proposition was clearly  ok what was not clearly established was the more narrow proposition why people he talks about qualified immunity cannot be defined at such a high level of generality you have to look want let's go back first no no argument that he was a pretrial detainee correct is there any argument that administrative segregation the way it was imposed was punishment think yes there is what is the argument five pieces of mail on it what did that have to do with prison security what so you answer that in two ways one of the five pieces of mail that was talked about the the court found that the conditions in a s were punishment and tell me where he was tell me why the court was wrong based on comparing the conditions or the didn't he didn't receive any counseling is not correct the court's finding was that there was no counseling at all in phase one and what we have here was and that is not a problem in the sense that it seems like to prepare him for reentry into the general population just record and second circuit has looked at this very program a number of times and determined that that is his inappropriate  is assigned to administrative segregation they first are removed from the general population assessed there are restrictions that ultimately get brought back  process of teaching an inmate the the ways to do his time successfully in hard for me to distinguish the in the case of a sentence prisoner even the difference between the punit administrative to the extent that this is triggered by a parent misconduct or something the conduct that concerns the institution and then as a result of that conduct he is subjected to a sanction to teach him a was an essentially and the lesson is if you do this kind of thing again you're going to be put in segregation and then if you behave better in segregation  back to that that looks like a kind of punishment and what am i missing about that and in connecticut system is different than some even in new york new york has administrative segregation is is considered a form of punishment so i think that that the system in connecticut punitive segregation is for a very limited time you are sentenced to punitive segregation privileges are and things were looking at are completely you don't get those at all at step one of the administrators segregation isn't that there are there are similarities between those two two steps by the overall process in place which has been upheld you know what you call that we're looking at the effect on the prisoner the the sea level of security needed at northern in particular the inmates that were at northern of the problems that had been at northern even the plain of testified look at all these as to th limited access to showers women access to religious services women access to family members all that taken together suggest punishment and and and and the case there was some programming in phase one but the court obviously found otherwise you don't have any doubt that do you that if every detainee in connecticut were routinely sent to an institution who had a record of trying to escape from custody who had in a previous term of incarceration stabbed a guard who was there was evidence was a gang leader who communicated with people inside and outside the prison in ways that could disrupt prison security that some set of conditions like this could be imposed even in pretrial detention that they could be but it really depends factually on certainly when did all those events occur so what we're really talking about here is whether these conditions are excessive or are appropriately imposed on a record regarding this individual based on his prior conduct and his prior classification in the connecticut penal system correct that that's that's what let that sums up the and  certainly in this case i'm sorry oh and your argument i take it is that that's a question of degree and even if the district court was correct that this really was excessive that still would entitle qualified immunity because nobody had ever figured out exactly how much you have to look like for example mystic river all in our previous case or where along the spectrum you fall before this degree of restraint can be imposed on a prisoner a detainee based on an assessment of their security risk that's a fair summary of the argument and in this particular case what we have if you look at the court's decision what the court did it really was saying that you can't look at prior institutional is free if you strip here turns on an assessment of how much difference gets given to the prison authorities and how much of an individual lies consideration does there have to be because here the district court's findings as i take it was that the only consideration was that he was for reasons that may seem not that dramatic he happened to be in a certain security level once before when he was incarcerated right but that's the only factor that dictated this that's the district court's finding that is the district court's finding and and it goes to the to the analysis of what was  the underlying it misread of segregation package and those were only admitted for the purposes of what they actually relied and that was no testimony but the that this wasn't a major event from mr oh i mean boy i mean he  asked to speak to a lieutenant now and you know he didn't suggest himself that it was inappropriate on this record to have that sanction or whatever you call it imposed back at the time it was imposed but by the same token if what we're asking is should a and what what showing has to be made before a pretrial detainee is subjected to such extreme measures the is asking for a lieutenant to come and address a grievance the sort of thing that you know is comparable to the kind of conditions that have been upheld for you know what the district court did in this case again defendants claim rony asli was was determined the most innocent explanation of that event what what these individuals had before them was into did report describing not only that mr a lot asked to speak to a lieutenant because he was unhappy about the day of commissary but he also incited fifty other inmates to also engage in this protest or tried to get other folks involved as he was identified as the ringleader of this group this happened within a year of when he is readmitted again the district court's decision certainly in my view would be that the correctional officials would almost have to put on blinders and not acknowledge  what what they had in front of them as to what happened and not necessarily accept the most in an innocent explanation little of all that's something that the supreme court has advised that that court shouldn't these folks had to make a tough decision and imagine imagine the hobson's choice they have they allowed mr a law to go into general population and he does the very same thing he had only done a year before the you know lawsuits again about failure to protect him what what how could you send this person back when within a year he had done what he had done you had all this information in front of you that that he had done that this is a classic case of second guessing the prison officials again if it again i'm sorry and as your thoughts know if this was something that you know if it happened significantly you know ten years you know five years before before he was coming back if he had gone through further into the programming which is designed the phase program is designed one to teach inmates again how to how to deal with the time how to not ask and gather folks with you to try to protest the fact that you're not getting commissary all of those lessons learned that we all can do on the street are things you can't do in a correctional facility and and that's he had not been through that process yet and again it was very short time frame and he's back in again so all of that information that these individuals are faced with again they're trying it it's a difficult decision they're making decisions for safety of of of staff but one of the inmates and in that i meet him so what do we  still qualified immunity would protect the defendant we have here and frankly did the defendants we have here are or are the officials that placed him in the administrat plaintiff had already been in phase one for a time and and offered up a credit for that time so that he could progress to phase two in a quicker fashion now the plaintiff rejected that offer and for his  or for reasons that he felt he should have been there in the first place but but but capping cahill was certainly not evidence in any intent to punish him and he's not at that level frankly to to do that aren't arguing or you're not contending or you know pretrial detainee no matter what his history and record could be properly subjected to these conditions individual determination as to what level of security is required in his particular case we said that is sort of the district court yeah right and and  had in some sense an individual as determination in other words ninety percent i assume of the people who are detainees or more don't get subjected to this treatment he was kind of singled out so we really it really boils down to what are the appropriate factors that should be taken into account in deciding how much how much individual treatment is a yet the words you're saying it's not really individual because it's based on a kind of hard and fast rule and also that even taking into account what was taken into account this was just excessive yes and yes it more correctly  or more specifically the things that were quote taken into account i mean the state is trying to recast this whole thing about as a bride fifty people for that's not true but second of all that's not what they did they looked at water only one thing beyond that the actual conditions of incarceration in the administrative segregation program as applied to a pretrial detainee number one doesn't make any sense even for an incarcerated prisoner post conviction but for detainee it's even more onerous we're talking about things like showering with clothes on we're also talking about restrictions on male thing that we found most kind of compelling is if you're in administrative segregation get a vote so that's separate and apart in the pretrial detainee if they had had some individual i suspicion that this guy was a problem there is a number of restrictive status is that could have been applied to him ranging from twenty three hours a day in lockdown in solitary confinement to a traditional prison set situation where you're in cell segregated but you have some independen to the open floor plan situation that he had the first time around which is what was presumably proof problematic there's also other kinds of restrictive status is there applied to france's gang members all of which is in the chart by the way or to sex offenders or to others who might present a security risk but they went they went basically they went from zero to sixty and they were one hundred twenty right segregation because that's what their manual provided that's right he did he didn't get an individualized examination of the likelihood that he would be problematic that's right they just put him in administer segregation because he was there before that's right ok so mr morgan let let me let the soon for the purposes of this question that i absolutely agree with everything you said that this is a constitutional violation very started he c tests that of course but he started by saying but really the issue here is qualified immunity so what i'm wondering is here you have prison officials who did follow emanuel who made a choice about where to put this person and let's say we absolutely agree it was the wrong choice and even an unconstitutional choice what authority can be relied on to say what do you rely on to say anyone should have known that that this was unconstitutional behavior there's no case saying you can't follow that manual there's not even many cases saying although some of this might be obvious that you couldn't do this to everybody  you know what what where do we go to say these officers should absolutely have known that this was a wrong decision to place him in taking your last point first  i think it would be less constitutionally suspect if they did this to everybody they said look we've reached a conclusion that the best way to maintain we've done some study that shows that people are better off having twenty three hours a week if they had a study but i think the whole i hear you're there but i mean again the fact that it is here they are making a choice they're saying in my view outrageously mistakenly that this man is someone who needs this treatment for the security of the prison and you know one might question whether what i think is outrageously mistaken even counts because they are the experts and we're supposed to defer to them but even if i think it's so outrageous that it overcomes my deference i have to also be able to say they were on clear notice somewhere that for them to be held liable in damages they were unclear notice that they shouldn't do this yes but the two parts that  cases are similar now the most compelling one frankly i think is the benjamin versus frazier case where there are did a consent decree and they said that you can't have the kind of physical restraints that they're imposing on this  guy now look i don't think it takes much of a stretch to say if you're saying that a guy who's in punitive segregation is entitled to good time and a guy who's in administrative segregation is not demonstrate how the state second half of the problem that we have here is the state never claimed that the reason that they did this was for institutional security their base is that it's in all their briefs up until now is to maintain the integrity of  pulmonary think no that said that wasn't what was considered there wasn't that kind of individualized attention given to him and in his hearing now that said i think that i would submit that they still have to find the kinds of things that judge lewis was talking about where he has escaped problems he had gang problems using the latin kings whatever it is there has to be more then he had this one circumstance a year and a half ago and now look had he come back as a convicted prisoner i don't think he gets a vote i think at that point they can put him in sight unseen or whatever here it is you're in you're going back in we'll figure it out later is the records say what he was charged with detention and does the record show what he was in prison for at the time of this alleged incident both drug offenses there's no as far is there any evidence of any violence and this is not that i'm aware of not any kind of latin king type violence no nothing like that no and i don't mean to misspeak but i think all of his offense are drug offenses and it was on the record at some point so you're on to my time has expired  we would expect respectfully submit that the opinion and the decision of the district court should be sustained it's going to go back to a second for two phases two and three what is the evidence that the isolation phases two and three was so excessive as to be a punitive well speaking certainly did to face to face two is functionally the same as phase one he's incarcerated in a cell twenty three hours a day eval to recreate only under limited circumstances the functional difference is that instead of being in solitary confinement like phase one you're confined with another individual there counseling during this period there is some but not like in phase three a phase three there's substantially more there's some initial type counseling but that doesn't change the other aspects of it which is the denial of good time found intent because you know as counsel suggested in his argument he said that the only thing the district court did was compare punitive versus administrative that's not what the court did the court did that effectively three things there was the comparison between the last program and the punitive program there was a comparison between the conditions of confinement and the code of penal discipline those things that the department of corrections deemed punitive the things that they used to punish the court looked at those things which are deemed privileges that every every prisoner is entitled to and so and so how many of those were the folks in a one a s one a s two and a s three how many where which one of those privileges they get and the answer is none so they didn't get the commissaire they didn't get the religious service they didn't get the ability for contact visits they didn't get the ability to talk on the phone without specific particular showing as to who you were talking of you their phone all of these things the court went down the line and first they looked at first the court looked at privileges not then they looked at the code of piece of peel discipline then they looked at a comparison use the street term administrative segregation is worse it's not a short duration like punitive is it's indefinite as long as they feel like it in punitive the one where they're really punishing you you don't have to share in your what the court did so in answer to your question if you compare one two and three and you apply the three standards that the court did the privileges not in one two and three the cole appeal discipline in one two and three and then the comparison between a s n punitive there's some differences you get slightly better and three slightly better and two if you're not a solitary that's the fundamental difference in wanted to let me just also ask you for a moment about the procedural aspects here so there's a requirement a written notice adequate time to prepare a witness a written statement of the reasons for the actions taken and a limited fact district court called it the hearing spurious and a sham so you know i don't know how it he did a full scale trial in a jury the whole nine yards but if it was deemed a sham because what they were talking about and considering was not the appropriate things it should be considering what there is of a wise you're in because you were in before yes ma'am so i mean i don't know this matters really but conceptually it sounds to me like this is the real issue here is substantive due process there's not a problem that he didn't get the kind of hearing that if they were considering the right things would have been an adequate hearing just that as a substantive matter there was an inadequate basis for doing this  i think that the court the district court says something similar to that but what the court essentially said and i'll defer to the judge but what he had said is that there is the what they're considering the things that they're considering a lack of particular  what he had done within one year of this very return to and there was no all the evidence was absolutely this is what we considered this is what we were looking at  secondly the the mention of good time earning good time credit there was no evidence that mr a law was even entitled to good time in the first instance the restrictive nature and in fact in reality he was not a good time didn't even apply to him in point in time so there's no evidence that good time even applied here so that is a complete red herring in this case with regard and i never answer it was not for you to say that's not how we did that so when he was asked what would what's the reason for that rule he said i don't know because i don't that's that i don't do that that's not what mr rove was was subjected to so these general conditions  put these individual defendants on notice that considering his prior institutional history has here considering in accordance with policy the fact that he had not finished a again policy a program that was designed and the testimony was that the phase one program was designed to help an inmate do his time safely and for safety and security so certainly the phasing program and that and that whole program is designed for safety and security that was that the the clear testimony in this case and and again i think if you strip away the decision it it seems to me as i read that that what the court is saying is that you can't look at them that there is no finding because i think the court even says he had done nothing since his readmission to to justify being placed in a yes and the defendant agreed at that point he had not done anything in that brief period of time that he was back th engaged in the program that's designed to help him do the time and help others do that these individuals so again i don't believe there are this is established as an intent to punish those that there was punishment here or there or that their reaction was of counsel here but my experience is that we have more lawyers looking to argue pro bono appeals than we have cases to give them my experience on the district court was it was not so easy to find people to take on the amount of labor that that you took on in the district court so it's very much appreciated that lawyers are making themselves available to do that we thank you for your service to british vitiated from the defense side as well it makes a case go much more than frank