a good morning all the first case for argument this morning is of her versus wall mr paul good morning you may please the court patrick werner was jailed three hundred seventy eight days for being homeless this was cruel and unusual punishment in advice elated due process mr warner reached his mandatory release date on march twenty first two thousand and ten at that point the law required his release from incarceration whether or not he had a suitable home wisconsin court of appeals had made this clear in olson and in allen following this court's decision in campbell the court made it clear that to incarcerate someone beyond his mandatory release date violates the eighth amendment if it's done without a logical justification and we have to liberate in deference to the requirements of state law now the state argues of course that mr warner was released he was released from a d o c institution and transfer to a county jail on a parole but with respect to the state that argument makes a mockery out of wisconsin's mandatory release statute the court of appeals the wisconsin court of appeals held in olson th no authority to hold immunity in custody in custody beyond his mandatory release date whether or not he has a suitable home and in rajesh the wisconsin supreme court made clear that this was true regardless of the location of the incarceration there the court said in the context of someone who had been transferred from the d o c institution to a county jail on a parole hold just like here that the d o c cannot indefinitely hold an offender simply because he does not have a home so then the question becomes does it make a difference that mr warner was allowed out into the community for four hours a day to look for a house and i submit to you that it doesn't and that no reasonable b o c official could conclude that it did in the wisconsin court of appeals case of woods the offender was transferred to a minimum security facility and they're all out to go out into the community under the supervision of his parole agent he was allowed to go to the bank to get a state id even apply for a job but he was not released entirely because he did not have a home and he argued that throughout this time he remained a prisoner in curse aerated in the court agreed it said it was in consequential that he had been permitted to go out of the community that he remained a prisoner because quote he was deprived of his liberty and held in custody like mr woods mr warner was never released in any meaningful sense he spent at least one hundred forty eight out of one hundred sixty eight hours a week behind bars and while behind bars he could not possess such common items as a bowl in a spoon he had to wear a jail uniform and he faced the prospect of lockdown for such minor infractions of jail rules as possessing a ripped bath towel and when he was let out for those four hours he was trailed closely by a chaperone and forbidden from accepting employment which only made it more difficult to find a home because some apartments would not let to him if he did not have a job but he could not get a job because he was incarcerated and at the end of the four hours he was cuffed patted down rebooked and forced to change back into a jail uniform this nowhere a claim co close to approximating the conditions he would have experience had he actually been released on supervised release there he would not have been behind bars and he would have been able to accept employment in fact under his rules of supervision he was required to seek employment mr paul could i ask you to address with respect to the qualified immunity issues the problems faced by the line officers i understand your argument with respect to those who issued the policies under which mr warner was held in the jail twenty hours a day  with over the line officers in those in their immediate supervisor supposed to do given the department of corrections policy that was in place two things one the policy which is  appendix thirty four was discretionary it says that homeless sex offenders maybe detainees not they shall be detained and in fact the d o c knew how to use the word shell because a t o to ten is replete with the word shell but not in the crucial sentence it says they may be detained so they were they were incarcerating him pursuant to a discretionary policy and that shows a level of intentionality that is relevant for the other mr paul following up on difficult spot i don't disagree with that but nevertheless they're charged with following clearly establish law and clearly establish law and require his release and at a minimum what they should have done is question the fact that he continued to be detained and incarcerated behind bars and there's no evidence that they did not mr werner wrote letters to everyone from his parole agent to the governor including the proliferation supervisors and their supervisors explaining that what they were doing was illegal and unconstitutional and to the extent they responded at all they showed a total lack of concern for his  that they they made no attempt to grapple with his claims that this policy was unconstitutional instead they indicated that they would be robotically applying the policy in fact that a couple of letters it's worse and that the dio see claimed that eighty zero to ten had been upheld by case law and that's false they cited no authority for that proposition and we've not been able to to find and who wrote that letter and where do we outsourced the deliberate indifference they had a choice they should have at least questioned what they were doing and there was no evidence that they did in the regardless they were charged with following clearly established will this saga serves no p t a logical purpose i will grant you that public safety continues to be a concern whenever a sex offender is released and for that reason also grant you that they have to be monitored but the d o c did not have to incarcerate mr werner indefinitely for all the twenty hours a week to protect the public safety and that is illustrated by their most recent directive dealing with homeless sex offenders eighty fifteen eighty fifteen twelve which were placed eighty zero to town that said short appendix thirty nine under that directive which is currently in place sex offenders are not incarcerated period for being homeless but they are tracked they have to wear g p s devices they have to frequently check in and report their whereabouts and the d o c in turn house to check those reports against the g p s data that's what they could have done here now the state says well we need a landline to operate the g p s two things about that one question that i question after oral argument in that case they submitted a letter stating in fact with individuals who lack a fixed address they use cellular g p s trackers so if that was true invid two thousand and eight when the offender in that case was released there's nothing in the record to suggest why that would not have also been true in early two thousand and ten when mr warner was released but if in fact a landline was required to operate the g p s it appears only to have been for purposes of enforcing curfew the the p s would be docked and they could check curfew that way but again there's no reason they could not have done then what they do now to enforce curfew which is would require sex offenders to wear cellular g p s devices to require them to frequently check in and report their whereabouts and then to check those reports against the g p s i doubt so that is appropriate the the one question that i think is still open your honor is whether the three factors that are outlined in a case call burke which are borrowed from the circuit third circuit whether those govern the deliberate indifference analysis in those three factors just to remind the court our knowledge of the problem failure to do something about it and then causalities a relationship between the response to the problem and the unjustified detention it's not clear whether that test applies in this circumstance and i think it would be helpful if the court could provide some guidance on that but we do have we do meet that test there's no question they knew he had reached his mandatory release date that he thought it titled him to be released there's no question they didn't do anything about it in fact they they told him no we were going to continue to follow the policy and that is exactly what led to his  with respect to the status of prisoners and we really have an individual here who has a very unique status at that time in the law he's he has served his period of uncurse range should we really be in the county jail but the dio c signed his order of detention that said docket one thirteen death one page ninety six so for all practical purposes he was incarcerated by the t o c if i could follow up a little bit i've i'm inclined to agree that sometimes our doctrine can can tie us up a little bit in this in this syria i wonder if if he isn't usefully perceived as a  parolee and if we go for example to the supreme court's fundamental case on due process rights of parolees morsi unscrew are we find that if you suspect somebody has actually violated conditions of par e he can be taken into custody he's immediately very he's entitled to a prompt hearing before a neutral decision maker and so on and in this case this fellow hadn't actually violated anything he was the this is some this is under the policy almost a precautionary detention will put him in custody so he doesn't violate and so he would seem to be denied even the rights of morsi what i would say about that is i think it might be useful for you to look at the supreme court's constance frame court case of rights which we submitted a supplemental already the court there held that one can't be both a prisoner and  simultaneously and i think that that would accurately describe werner stannis the difference between that case in this one is that the offender in the in that case was recalcitrant he refused to follow his rules of supervision mr warner did not refuse to to file his rules of supervision he simply as you as you correctly describe judge hamilton was incarcerated  time left on his sentence the mandatory release statute requires release of prisoners at two thirds of their sentence that means a third is left to go but they become parolees on last they continue to be incarcerated which mr warner was a or yes i'm trying to s est he was factually a prisoner he was legally a parolee i think that's that is yes that's a fair see statement if he had it's few that he was a parolee at least prisoners so in other words do we have a fax situation which would separated the question of the knowledge of decision makers well under qualified immunity doctrine our case does not have to be on all fours with really think that that's what we have here we have a sex offender we have someone who is transferred from one institution to another and we have someone who can was continued he was continually incarcerated and under the authority of  ten authorized the defendants to hold certain sex offenders on a modified parole hold until they could find appropriate housing the policy is no longer in existence but when it was it only applied to a narrow group of multiple offense sex they're entitled to qualified immunity qualified immunity protects all but the police only incompetent and those who knowingly violate the law and the defendants here in implementing the policy were not legally incompetent based on the situation with which they were confronted with regard to the officials who were involved presumably in drafting this policy they were screened out and by the district court in the screening arthur and mr warner did not appeal from that corner and it was mentioned for the first time that the case is moot as to injunctive relief yet although you didn't ask us to brief that issue so i think ed wall is probably still in the case but he was he was screened out while he was in even a defendant at the time because the offender was held beyond his m r date in prison he wasn't released to parole from his perspective what's the difference the difference is he was transferred from the red granite correctional forty eight hours a week he is but he's on parole status and he is released for a good part of the day to search for housing who are going to serve you or briefs seemed to present this as if the county jail was sort of like a youth hostel where he gets to sit in on a bunk to sleep at night that's probably doesn't seem remotely comparable to the reality of what he was experiencing it's probably not accurate that it was like a youth hostel but it was the only option that the defendants had at the time you know a place for him to stay  that he could have complied with wisconsin law which did prohibits detention simply because he's homeless well the one of the laws that opposing counsel cite is the sex offender registry law and that is completely different than the strict supervision that offenders are under when they're on parole or extended supervision you know it's like comparing apples and oranges there's the registry requirement where you're just required to report certain things and then there's the strict supervision that s v n sex offenders were under when they were released to brawl so offenders were had strict rules of supervision they had the reporting requirements they they had curfews and had to provide in a temporary everytime they went out they often needed a chaperone so it's very similar to the the time that they were out for the under the policy it wasn't continual incarceration i'm trying to figure out how somebody in the policymaking position and presumably seeking advice from your office could read wo also and leader l and conclude well as long as we just put him in the county jail instead of the state prison we can just treat him so you wonder why i think here this goes to the qualified immunity point in that supports the distinction you're drawing with in the development of the policy it does deal with you have a record of that for us not that i know of or sometimes not in the district court record here it's not all though i think the fact  expressly put in the policy in the cases of woods and olson shows that they were making an attempt here to find a way to more closely monitor sex offender turning to the eighth amendment claim if this court thinks that that analysis is proper the defendants here had a legitimate pain a logical reason for holding sex offenders on a modified parole hold and that reason was i'm not entirely sure of the actual residency requirement was i mean these these sex offenders the s b and sex offenders had to have a residence at the time whereas others had sex offenders on an active  offense sex offenders could be released as homeless at the time so does he made a policy decision that the s b and sex offenders needed to be having to prove residen whether or not an approved residence has been found the court was very clear that's true but the the defendants were acting under the facts that they had before them at the time well they were this is i haven't heard an explanation yet for how you can how you can do this what i think it goes to qualified immunity these these defendants certainly these line officers didn't know that could couldn't have reasonably known that this would be water since we've got an entire final judgment in front of us well even if the court revisit the screening order the the upper level officers actions weren't deliberately indifferent for the same reason as these line officers there was there was a legitimate pino logical reason for placing these offenders on a whole and they weren't a legitimate if you know logical reason this is we may be dealing with some of the edge between due process of law and the man i understand that you might be perfectly good reasons to be concerned and that's why are these monitoring requirements are in place but you know our system of government the executive branch is usually not allowed to make unilateral decision that somebody executive branch can unilaterally hold somebody in custody i can't think of why now but this is these are parole officers it was or guantanamo bay now but they were charged with the responsibility of safely supervising these s been shown to be especially dangerous and the the policy makers and the line officers acted reasonably given that  situation the defendants were also not deliberately and different they this policy allowed offenders to be released from prison under those state cases and provided them with a sick place to stay this was the only option for them this is the only place that they had for him to  that was within the the ordinances which were extremely restrictive and also allowed them to avoid a violation of their rules of supervision which at the time included a provision that they couldn't violate that that also leads to the conclusion that they're not deliberately indifferent they followed what they thought was this directive from the  court the supervision when they were on the policy was more or less restrictive than it would have been if they were continually held in prison they were released for several hours during the day and that was the the time wasn't for us a certain number of time each day that the person was released and you know there aren't details about exactly what happened during that time but here they were released every day every week day for four hours to search for housing and do a number of other things running errands with their chaperone search for jobs that kind of thing turning to the procedural due process claim there no question that warner was notified of the reason for his attention every time he was released from prison he also had an opportunity to use the prison grievances down to challenge both the decision that he was homeless and the residency those decisions and prevails he should be released right you know that's not what the grievance procedure is for isn't that's correct so why are you telling us that the grievance procedure is a remedy here for custo he's in essence on illegally on parole you're telling us he's no longer a prisoner even though it must have felt awfully much like he was still a prisoner so more a c tells us that somebody who is suspected of violating  conditions is intitled to various procedural protections including an independent hearing officer in the federal system we have the elaborate procedures codified by both statute and rule thirty two point process was being accorded to some money somebody who's being kept in prison essentially in custody hundred forty eight hours a week on the say so only executive authority with no access to well as far as the process that mr where i was permitted to have it was a written grievances and which this court and twenty l said was sufficient for an offender being held beyond his mandatory release date so i think that process was sufficient in this circumstance rather than through the whole revocation process because here there's no question that patrick warner's parole was not going to be revoked because of any action on his part they were just in this unusual situation where they had no other place to put him and he had to be confined in the jail at night and then released for a good part of the day to search for housing this was the only option that they had at the time given their decision that this offender was a dangerous offender they could not be re and i think to that exact issue was addressed in metcalf where the offender there wanted to have the procedures under morsi but the court held no that that that he wasn't entitled to those procedures he was only entitled to  the written grievances that he already had and if there was some entitlement to more process that was new and had not been decided by any court so the defendants in that case were entitled the qualified immunity as they should be clearly establish a violation on the part of the state defend so it's important to remember here that patrick warner was twice convicted of a child sex offense and that's what makes him a special bulletin notification or s b and sex offender the defendants did not hold him on to modify parole hold in order to punish him for public safety and he had an opportunity to challenge both of the decisions underlying his detention so even if the defendants violated the eighth amendment of the due process clause they're entitled to qualif would like to begin by addressing judge hamilton's question about the status of the policy making officials say the counsel accurately describes the screening were however we did appeal that order mr werner appealed from the judgment and of course as you know that brings up all you know a lot of tory orders for review and we argue specifically under this court's case and childress decided last year that these individuals could be held responsible  and administrators can be held responsible for these sorts of things when they have instituted condoned or willfully turned a blind eye to a policy or practice that when enforced causes a constitutional violation and we believe that that's precisely what happened here i think an appropriate remedy as to those individuals would be to reverse and to remand for further proceedings on those individuals this report this record reflect legislative action post the woods and olson decisions in the early two thousand with respect to what specifically well through the two a policy such as how soon after those cases  the that the policy come into being the case was decided in ninety nine one thousand in two thousand in a policy was implemented in july of two thousand and two to write so do we have anything to indicate whether the legislature did any and took any action in response to the policy or the cases i'm not aware that they did specifically no your honor so so do what we had is  invitation i think to the d c to handle these people procreate and lee and not to incarcerate them and there would have been a number of other options involving more intensive supervision w unquestionably an administrative directive fifteen twelve again at thirty nine a short appendix proves that point perfectly homeless sex offenders are not detained but they are monitored they have to frequently check in and report their whereabouts and those reports are double checked by the jeep to the d v d o c against the g p s data they could have done that in two thousand and ten and for whatever reason chose not to kill the state by virtue of the mandatory release statute has made the judgment that whatever pedia logical purposes are served by putting someone behind bars that those purposes are sufficiently for fill once they reach two thirds of their sentence that they must be released and that goes as much for s p n offenders as it goes for other types of offenders be the administrative directive fifteen twelve really puts the lie to the state's claim that they had no other option here they did have options and eighty fifteen twelve was that option if there are no further questions i would ask the court to reverse thank you paul thanks to all counsel mr paul you were except a disappointment in the