10-2563 Bailey v. Pataki

UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2 August Term, 2011 3 (Argued: October 31, 2011 Decided: February 14, 2013) 4

Docket No. 10-2563 5

------------------------------------- 6 Kenneth Bailey, 7 Plaintiff - Appellee , 8 Robert Trocchio, Jorge Burgos, Jr., Louis Massei, Robert Warren, 9 Charles Brooks, 10 Consolidated Plaintiffs - Appellees , 11

v. 12 George Pataki, former Governor of New York State, Eileen 13 Consilvio, former Executive Director, Manhattan Psychiatric 14 Center and Kirby Forensic Psychiatric Center, John Doe, # 1, 15 Commissioner of the New York State Department of Corrections, 16 John Doe, # 2, Commissioner of the New York State Office of 17 Mental Health, John Doe, # 3, Superintendent of Wyoming 18 Correctional Facility, John Doe, # 4, Superintendent of Attica 19 Correctional Facility, John Doe, # 5, Superintendent of the 20 Downstate Correctional Facility, John Doe, # 6 through 20, 21 medical personnel who examined and evaluated plaintiff pursuant 22 to New York State Mental Hygiene Law Article 9, Glenn S. Goord, 23 Sharon Carpinello, Michael Giambruno, James Conway, Paul Annetts, 24 Emilia Rutigliano, Prabhakar Gumbula, Allan Wells, 25 Defendants - Appellants , 26 Jonathan Kaplan, Olusegun Bello, Mary Ann Ross, Ayodeji Somefun, 27 Michal Kunz, William Powers, Lee E. Payant, Lawrence Farago, Luis 28 Hernandez, Samuel Langer, Robert Dennison, Former Chairman of the 29 New York State Board of Parole and Chief Executive Officer of the 30 New York State Division of Parole, Jeffrey Tedford, Former Deputy 31 Superintendent of Security at Clinton Correctional Facility, 32 William J. Sackett, Facility Senior Parole Officer, Clinton 33 Correctional Facility, Jean Liu, psychiatrist who evaluated 34 plaintiff for possible civil commitment, Abadul Qayyum, Charles 35Chung, Dale Artus, Former Superintendent of Clinton Correctional 1 Facility, 2 Consolidated Defendants - Appellants

. 3

------------------------------------- 4 Before: McLAUGHLIN, SACK, and HALL, Circuit Judges

. 5 This is an appeal from an order of the United States 6 District Court for the Southern District of New York (Jed S. 7 Rakoff, Judge ) denying the defendants' motion for summary 8 judgment. The defendants argue that they are entitled to 9 qualified immunity on the plaintiffs' 42 U.S.C. § 1983 procedural 10 due process claims because the procedures employed in the course 11 of civil commitment proceedings against the plaintiffs complied 12 with due process requirements, and because, even if they did not, 13 a reasonable person in the defendants' position would not have 14 known that he was violating the plaintiffs' constitutional 15 rights. We conclude that the district court properly denied the 16 defendants' motion for summary judgment. There is sufficient 17 evidence which, when viewed in the light most favorable to the 18 plaintiffs, supports their claim that they were denied their 19 right to procedural due process before being civilly committed. 20 We also agree with the district court that a reasonable official 21 in the defendants' position would have known that the process by 22 which the plaintiffs were committed did not satisfy basic 23 constitutional requirements and that the defendants are therefore 24 not entitled to qualified immunity. 25 Affirmed. 26
27
2AMEER BENNO, Benno & Associates, New 1 York, NY, (Richard Sullivan, Jeffrey 2 Rothman, on the brief ), forPlaintiffs3 Appellees

. 4 5 CECELIA C. CHANG, Assistant Solicitor 6 General, (Barbara D. Underwood, 7 Solicitor General, Benjamin N. Gutman, 8 Deputy Solicitor General, on the brief ), 9 for Andrew M. Cuomo, Attorney General of 10 the State of New York, New York, NY, for 11 Defendants-Appellants

. 12

SACK, Circuit Judge : 13 This appeal requires us to decide whether the civil 14 commitment of the plaintiffs following the expiration of their 15 sentences for sexually based criminal offenses constituted 16 violations of their procedural due process rights redressable 17 under 42 U.S.C. § 1983, and, if so, whether the defendants are 18 nonetheless entitled on the record before the district court to 19 summary judgment dismissing the procedural due process claims on 20 the grounds of qualified immunity. 21 The plaintiffs' commitments were effected not through 22 the state's normal civil commitment procedures, but by means of 23 an executive-branch effort aimed at preventing the release of 24 some "sexually violent predators" ("SVPs"). The Governor of New 25 York State at the time, Governor George E. Pataki, directed the 26 State's Office of Mental Health ("OMH") and Department of 27 Correctional Services ("DOCS") to develop a plan whereby he could 28 take executive action to implement an initiative (the "SVP 29

3Initiative" or the "Initiative") that would result in the 1 involuntary commitment of selected SVPs to state psychiatric 2 facilities after the expiration of their criminal sentences. The 3 plaintiffs, who were committed pursuant to this initiative, 4 assert a variety of claims against Governor Pataki and officials 5 of OMH and DOCS. 6 In this appeal, the defendants assert that the district 7 court erred when it denied their motion for summary judgment on 8 the plaintiffs' procedural due process claims, concluding that 9 the defendants are not entitled to qualified immunity. The 10 plaintiffs' claims for denial of procedural due process are 11 premised on the allegation that they were committed pursuant to 12 the SVP Initiative without the benefit of notice or an 13 opportunity for a hearing prior to their commitment. 14 We agree with the district court that there is 15 sufficient evidence in the record to support the plaintiffs' 16 procedural due process claims and therefore defeat the motion for 17 summary judgment. We also conclude that at the time of the 18 Initiative, the constitutional principle that, absent some 19 emergency or other exigent circumstance, an individual cannot be 20 involuntarily committed to a psychiatric institution without 21 notice and a predeprivation hearing was firmly established. 22 Because the law pertaining to the involuntary civil commitment of 23 prisoners was firmly established, the district court properly 24 determined that the defendants should not enjoy qualified 25 immunity. 26
4**BACKGROUND** 1 The SVP Initiative 2 In June 2005, a recently-paroled sex offender murdered 3 a woman in the parking lot of the Galleria Mall in White Plains, 4 New York. Governor Pataki had previously attempted to enact 5 legislation providing additional avenues for the commitment of 6 dangerous sex offenders, 1but after the murder, "momentum to do 7 something around [sic.] dangerous sex offenders increased," 8 according to associate director of OMH's Forensic Services 9 Division, Richard Miraglia, who participated in the creation and 10 implementation of the SVP Initiative. Dep. of Richard Miraglia, 11 Nov. 24, 2009 ("Miraglia Dep."), at 62; Joint App'x at 147. In 12 an October 2005 press release, Governor Pataki's office explained 13 that during this time period he "directed that every sexually 14 violent predator (SVP) in State custody be evaluated for 15 involuntary civil commitment before being released from prison. 16 He directed [OMH] and [DOCS] to push the envelope of the State's 17 existing involuntary commitment law because he couldn't wait any 18 longer for the Assembly Leadership to bring his legislation to 19

1 Beginning in 1998, shortly before the end of his first term in office, Governor Pataki tried to convince the New York State legislature to pass sex offender civil commitment legislation, but, he said in a televised interview, the state Assembly leadership would not permit a floor vote. Tr. of Interview of George E. Pataki by Bill O'Reilly, FOXNews.com, Nov. 18, 2005; Joint App'x at 274. Those opposing the measure, the Governor said, were making "the same old argument. There are those who would rather have 50 sexual predators out on the street than one who they believe might have been wrongfully confined." Tr. of Interview of George E. Pataki by Glenn Beck, July 16, 2007; Joint App'x at 590.
5the floor for a vote." Press Release, N.Y. State Executive 1 Chamber, Governor: U.S. Dep’t of Justice Adds N.Y. to Nat’l Sex 2 Offender Public Registry Web Site (Oct. 24, 2005); Joint App'x at 3 215. 4 In order to put the governor's policy into effect, OMH 5 officials began engaging in daily discussions about how to 6 implement a civil commitment initiative. Miraglia testified that 7 the "general tenor" of these meetings reflected "concern about 8 dangerous repeat sex offenders being released to the community" 9 and "some frustration about legislative inaction." Miraglia Dep. 10 at 48; Joint App'x at 136. Discussions eventually centered on 11 using either Correction Law § 402 or Mental Hygiene Law § 9.27 12 for this purpose. The two statutes are substantially different. 13 Section 9.27 of the Mental Hygiene Law ("MHL"), 14 codified in Article 9 of the MHL and entitled "Involuntary 15 admission on medical certification," allows the director of a 16 hospital to accept any patient "alleged to be mentally ill and in 17 need of involuntary care and treatment upon the certificates of 18 two examining physicians." MHL § 9.27(a). The director must 19 also receive a sworn application explaining why the patient needs 20 mental health treatment. Id.After the patient arrives at the 21 hospital, a member of the hospital's psychiatric staff is 22 required to examine him and confirm that he should be admitted. 23 MHL § 9.27(e). The law requires that the nearest relative of the 24 patient, or any other person the patient has designated, be given 25 notice of the involuntary admission within five days of 26
6admission. MHL § 9.29(b). Within sixty days of admission, the 1 patient or a friend or relative can request a hearing on the 2 involuntary admission, which is required to be held within five 3 days of receipt by the hospital director of notice of the 4 request. MHL § 9.31(a). If no hearing has been held or court 5 order issued, or if the patient does not consent to the 6 admission, the hospital director is required to seek a court 7 order within sixty days of the patient's involuntary admission if 8 the director wishes to pursue the matter. MHL § 9.33(a). 9 Correction Law § 402 is entitled "Commitment of 10 mentally ill inmates." Under that law, if a staff physician at a 11 prison informs the prison superintendent that an inmate is 12 mentally ill, the superintendent asks a "judge of the county 13 court or justice of the supreme court in the county" to appoint 14 two physicians to examine the inmate. Correction Law § 402(1). 15 If both physicians conclude that hospitalization is appropriate, 16 they must produce certificates to that effect. Id.The 17 superintendent is then required to apply to the court for a 18 commitment order, and personally serve notice on the inmate and 19 his or her closest relative or, if relatives are unknown or not 20 within the state, "any known friend," five days prior to the 21 commitment. Correction Law § 402(3). The Mental Hygiene Legal 22 Services must then inform the inmate (or, in appropriate cases, 23 others concerned with the inmate's welfare) of "the procedures 24 for placement in a hospital and of the inmate's right to have a 25 hearing, to have judicial review with a right to a jury trial, to 26
7be represented by counsel and to seek an independent medical 1 opinion." Id.The inmate is entitled to request a hearing 2 before a judge prior to any transfer to a psychiatric hospital. 3 Correction Law § 402(5). The procedural protections in section 4 402 may only be bypassed where admission to a hospital is sought 5 on an emergency basis. Correction Law § 402(9). 6 The state officials dealing with the matter ultimately 7 decided that MHL § 9.27 would be the appropriate law through 8 which to implement the SVP Initiative. The parties disagree as 9 to whether MHL § 9.27 had previously been utilized for the civil 10 commitment of inmates. Scott Clair, who worked for OMH at Attica 11 Correctional Facility between 1976 and 2005, testified that use 12 of Correction Law § 402 was standard procedure for the civil 13 commitment of prisoners, and that he was unfamiliar with MHL § 14 9.27. Dep. of Scott Clair, January 14, 2010 ("Clair Dep."), at 15 43-44; Joint App'x at 1200-01. Hal Smith, who served as 16 executive director of the Central New York Psychiatric Center, an 17 OMH facility, similarly testified that prior to the SVP 18 Initiative, inmates were transferred from DOCS to OMH facilities 19 pursuant to the Correction Law, not the Mental Hygiene Law. Dep. 20 of Hal E. Smith, November 11, 2009 ("Smith Dep."), at 162-63, 21 166, 169; Joint App'x at 1256-59. In a related state court 22 proceeding, the state Attorney General represented that MHL 23 § 9.27 had been used five times between 2003 and 2005 to civilly 24 commit prisoners. Stateex rel. Harkavy v. Consilvio , 10 Misc. 25 3d. 851, 856, 809 N.Y.S.2d 836, 839-40 (Sup. Ct. 2005), rev'd , 29 26
8A.D.3d 221, 812 N.Y.S.2d 496 (1st Dep't), rev'd , 7 N.Y.3d 607, 1 859 N.E.2d 508, 825 N.Y.S.2d 702 (2006). 2 Sharon Carpinello, Commissioner of the OMH, presented 3 the proposed SVP Initiative, utilizing MHL § 9.27, to Governor 4 Pataki. The proposal called for a pool of SVPs to be identified 5 based on upcoming release dates. The pool of inmates was drawn 6 from those who had committed a violent offense as defined by New 7 York Penal Law § 70.02, and a sex offense as defined by Penal Law 8 § 130, as well as from another list of inmates who had committed 9 felonies involving some sexual motivation. According to Dawne 10 Amsler, Associate Director of OMH's Bureau of Forensic Research, 11 this constituted a departure from prior practice. Previously, 12 MHL § 9.27 applied to "individuals who have a mental illness that 13 makes them dangerous to themselves or others," and inmates who 14 did not fit that criteria were evaluated prior to their release 15 pursuant only to Correction Law § 402. Dep. of Dawne Amsler, 16 Nov. 10, 2009 ("Amsler Dep."), at 21, 27; Joint App'x at 502-03. 17 Amsler testified that "individuals who were already on the mental 18 health caseload at OMH and receiving fairly intensive services 19 were evaluated at the end of their [sentences] regardless of the 20 crime they committed and perhaps committed if deemed necessary. 21 This changed [after implementation of the Initiative] in that all 22 sex offenders regardless of whether or not they were on caseloads 23 were evaluated." Id.at 36; Joint App'x at 506. 24 Under the Initiative, the identified inmates would be 25 subject to a review of their criminal histories, and then to an 26
9examination by two physicians, who would determine whether they 1 posed a risk to the public, or suffered from a mental illness, 2 and therefore needed inpatient care and treatment. If the 3 physicians recommended civil commitment, the inmate would be 4 transferred to a psychiatric center and examined by a 5 psychiatrist to confirm the diagnosis. Once admitted to the 6 facility, the inmate would begin undergoing a specialized course 7 of treatment. 8 Implementation of the Initiative began almost 9 immediately. Under Defendant Glenn Goord's direction, DOCS 10 identified SVPs scheduled for release and made the presentence 11 reports for those inmates available to OMH. OMH then compiled 12 relevant information on the inmates, including their "OMH level," 13 which did not include a specific diagnosis, and a description of 14 the offense of conviction. Between September 2005 and January 15 2006, Amsler personally compiled the information about the 16 identified inmates and provided that information to OMH 17 personnel. She completed two documents for each inmate, a 18 "FPMS/DMHIS" overview and a "Static 99" evaluation. Pls.' 19 Statement of Uncontested Material Facts Pursuant to Local Rule 20 56.1, at ¶ 85; Joint App'x 87, citing Amsler Dep. 2 21 Every inmate identified by DOCS as a potential SVP was 22 evaluated for civil commitment by OMH. Any inmate who refused to 23 submit to the evaluation was subject to disciplinary action and 24

2 Amsler did not know what the initials "FPMS" stood for. Amsler Dep. at 122; Joint App'x at 546. 10refusal could have constituted a parole violation. The DOCS 1 Superintendent then applied for the civil commitment of SVP 2 inmates who had been deemed to meet the criteria for civil 3 commitment and had been examined by two physicians who had so 4 certified. The inmates received no advance notice that they 5 would be transferred or subject to a civil commitment evaluation. 6 While the procedures for commitment used in the SVP 7 Initiative tracked MHL § 9.27, the standard for commitment was 8 different from that ordinarily used under the provision, which 9 caused concern among those charged with implementing the 10 Initiative. 3Miraglia testified that officials had only days to 11 develop the techniques for assessing whether SVPs qualified for 12 commitment under the Initiative. "[T]he sex offender assessment 13 is a specialty . . . that heretofore [had] not been within the 14 OMH menu of services. . . . So we needed to develop that 15 capacity to understand what . . . assessment techniques would be 16 required to identify those at highest risk for sexual 17 recidivism." Miraglia Dep. at 69; Joint App'x at 154. 18 One person involved with the Initiative wrote in an e19 mail under a heading "Operational Concerns and Challenges," that 20

3 The standard itself is not at issue in this appeal. The plaintiffs' substantive due process claim challenging whether the standard for commitment utilized was appropriate is not before us. SeeBailey v. Pataki , No. 08 Civ. 8563, 2010 WL 4237071, at *4, 2010 U.S. Dist. LEXIS 113766, at *13 (S.D.N.Y. Oct. 26, 2010)(denying defendants' motion for summary judgment on the substantive due process claims). The uncertainty regarding the standard used is nevertheless relevant to the procedural due process analysis because it compounds the risk of an erroneous deprivation of a liberty interest. 11"[e]xpertise in the treatment of sexual offenders is not widely 1 available among current OMH staff, and the majority of clinicians 2 have not had any experience with this population. Training 3 clinicians who are unfamiliar with the sexual offender population 4 to apply civil commitment criteria to these individuals may be 5 difficult." Email from Robyn Katz to Carpinello, Miraglia et al. 6 (July 29, 2005, 6:25 p.m.); Joint App'x at 593. Scott Clair, a 7 Forensic Unit Chief of the mental health unit at Attica, 8 explained that the "criteria" utilized to evaluate the inmates 9 identified as SVPs was "dangerousness to self or others." Clair 10 Dep. at 46; Joint App'x at 1203. Correction Law § 402 used the 11 same criteria, but, Clair testified, "[i]nmates that went on 402 12 were clinically decompensated to the point where they were 13 dangerous to self or others at that exact time," while those 14 under the SVP Initiative were evaluated "based on dangerousness 15 to the community based on the risk assessment and their 16 diagnosis." Id.at 47; Joint App'x 1204. 17 Another OMH physician explained that she was "asked to 18 make a prediction of the risk of possible recidivism to keep the 19 community safe," whereas the Article 9 standard, by contrast, "is 20 based on if the individual is harmful to himself and others and 21 that if this is deemed the case then the certification is good 22 for a period of 72 hours." Dep. of Mary Ann Ross, Sept. 24, 23 2009, at 437-39; Joint App'x at 1671-73. 24 The SVP Initiative's evaluation was based in part on 25 the Static 99 form, which estimated an inmate's risk of future 26
12recidivism in five, ten, and fifteen years, and which had not 1 previously been used in the State's civil commitment process. 2 When the Initiative began, most of the OMH physicians did not 3 have any experience using the Static 99 form, and some were "not 4 comfortable" using it. Smith Dep. at 157; Joint App'x at 1255. 5 The Plaintiffs' Commitment 6 Plaintiff Kenneth Bailey was among the first to be 7 evaluated pursuant to the new Initiative. He and the other 8 plaintiffs contend that had it not been for its implementation, 9 they would not have been evaluated for civil commitment at all. 10 Bailey had been convicted multiple times for sexual abuse of 11 children and has admitted to molesting twenty-three girls. His 12 most recent conviction stemmed from the repeated sexual abuse of 13 his daughter for which, in 1994, he was convicted and sentenced 14 to six to twelve years imprisonment. Some eleven years later, on 15 September 28, 2005 -- less than two weeks before he was scheduled 16 for release -- Bailey was transferred from Wyoming Correctional 17 Facility to Attica Correctional Facility. Three days before his 18 scheduled release, two OMH physicians evaluated Bailey for 19 involuntary civil commitment pursuant to the Initiative. Both 20 physicians produced written certificates stating that Bailey 21 qualified for civil commitment. 22 When Bailey's sentence expired, the Superintendent of 23 Attica applied for Bailey's involuntary commitment and DOCS 24 transported Bailey to the Manhattan Psychiatric Center ("MPC") 25 the same day. Bailey did not request a hearing following his 26
13commitment because he apparently thought he would be at MPC for 1 only a few weeks or months. He contends that he was not aware 2 that he was a psychiatric patient there. The commitment 3 proceedings for the other plaintiffs in this action followed 4 similar patterns. SeeBailey v. Pataki , 722 F. Supp. 2d 443, 5 448-49 (S.D.N.Y. 2010). 6 The plaintiffs petitioned for habeascorpusrelief in 7 state court, arguing that the use of MHL § 9.27, rather than 8 Correction Law § 402, to civilly commit them was illegal. State 9 ex rel. Harkavy v. Consilvio , 7 N.Y.3d 607, 859 N.E.2d 508, 825 10 N.Y.S.2d 702 (2006). In Harkavy, the New York Court of Appeals 11 commented: "[W]e understand how in an attempt to protect the 12 community from violent sexual predators, the State proceeded 13 under the Mental Hygiene Law." The court concluded, however, 14 that "because inmates who are incarcerated do not pose an 15 immediate threat to the community, there should be ample time to 16 proceed under the Correction Law." Id.at 614. The court 17 ordered that each civilly committed individual be provided "an 18 immediate retention hearing pursuant to article 9," and directed 19 that future proceedings against inmates proceed under Correction 20 Law § 402 "with all its attendant procedural requirements 21 including court supervision, pretransfer notice and an 22 opportunity to be heard within a reasonable period of time prior 23 to the inmate's proposed release date." Id.The court did not 24 decide on the constitutionality of applying Article 9 to 25 prisoners. In a concurrence by Judge Robert S. Smith, however, 26
14he cautioned that it "would raise serious constitutional 1 problems" because "Petitioners had all been in prison for years 2 before the State sought to commit them civilly. No sudden, 3 unforseen emergency required their confinement in a mental 4 hospital." Id.at 615. 5 The District Court Opinion 6 In October 2008, the plaintiffs filed this action 7 alleging claims under 42 U.S.C. § 1983 for violations of their 8 Fourteenth Amendment rights to procedural and substantive due 9 process and to equal protection, and their Fourth Amendment right 10 against unreasonable seizure, under 42 U.S.C. § 1985(3) for 11 conspiracy, and under various provisions of New York State law. 12 On March 31, 2010, both sides moved for summary judgment. The 13 district court (Jed S. Rakoff, Judge ) denied the plaintiffs' 14 motion for summary judgment in full, and granted in part and 15 denied in part the defendants' motion for summary judgment. 4 16 Relevant to this appeal, the district court rejected the 17 defendants' argument that they are entitled to qualified immunity 18 on the plaintiffs' procedural due process claim. 19 In its opinion, the district court first addressed 20 whether the plaintiffs had made out a procedural due process 21 claim for their "involuntar[y] commit[ment] to civil confinement 22 without advance written notice, an evaluation by court-appointed 23

4 The district court entered a separate opinion detailing its decision on all issues other than qualified immunity. See Bailey, 2010 WL 4237071, at *1, 2010 U.S. Dist. LEXIS 113766, at *3-*4 (explaining the different opinions and orders issued). 15physicians, and . . . a predeprivation judicial hearing." 1 Bailey, 722 F. Supp. 2d at 447. The court explained that a 2 confined prisoner "presents no immediate danger to the community, 3 [therefore] full due process must be accorded before he can be 4 transferred, upon completion of his sentence, to involuntary 5 civil commitment." Id.at 447-48. Relying on Vitek v. Jones , 6 445 U.S. 480 (1980), the court determined that such process must 7 include notice and "a predeprivation adversary hearing . . . at 8 which the prisoner can see the evidence for the commitment and be 9 given an opportunity to be heard in person, as well as present 10 testimony and engage in cross-examination of the state's 11 witnesses." Bailey, 722 F. Supp. 2d at 448. 12 The district court then examined whether the process it 13 had determined was constitutionally required had been afforded to 14 the plaintiffs in this case. It concluded that the "plaintiffs' 15 civil confinement did not remotely comport with constitutional 16 requirements." Id.at 449. 17 Having thus decided that, viewed in the light most 18 favorable to the plaintiffs, the evidence supported the due 19 process claims, the district court then considered whether the 20 defendants were entitled to qualified immunity because the right 21 at issue was not "clearly established" when the Initiative was 22 implemented. The court determined that it was clearly 23 established at the relevant time that in the absence of any 24 "immediate danger to society," a predeprivation hearing was 25 required before civilly committing an individual and that this 26

16requirement was "so obvious that no reasonable defendant official 1 could have failed to miss it." Id.at 450-51. 2 The district court emphasized that Correction Law 3 § 402, which specifically dealt with commitment of inmates, 4 required a predeprivation hearing. Id.at 451. The court noted, 5 finally, that: 6 [I]t is not irrelevant that the plaintiffs 7 here have advanced competent evidence from 8 which a jury could conclude that the decision 9 to deprive SVP detainees of a predeprivation 10 hearing by replacing the procedures of 11 directly applicable Correction Law § 402 with 12 those of seemingly inapplicable MHL § 9.27 13 was a deliberate decision taken for political 14 reasons. To deprive plaintiffs of their 15 constitutional rights for political gain can 16 never be reasonable. 17 Id.at 451-52. 18 The defendants appeal. 19

**DISCUSSION** 20 We review de novoa district court's denial of summary 21 judgment on qualified immunity grounds, and construe all evidence 22 and draw all reasonable inferences in the non-moving party's 23 favor. Amore v. Novarro , 624 F.3d 522, 529 (2d Cir. 2010). 24 Summary judgment is appropriate where "there is no genuine 25 dispute as to any material fact and the movant is entitled to 26 judgment as a matter of law." FED . R. CIV. P. 56(a). 27 **I. Procedural Due Process Claim** 28 The plaintiffs allege that they were denied their 29 Fourteenth Amendment right to procedural due process when they 30 were committed to a psychiatric institution without the benefit 31

17of notice, psychiatric examination by court-appointed physicians, 1 or a judicial hearing prior to their commitment. In order to 2 state a claim under 42 U.S.C. § 1983 for denial of procedural due 3 process in the context of this litigation, the plaintiffs are 4 required to demonstrate that they have a protected liberty 5 interest in not being involuntarily committed to a psychiatric 6 institution and that they were deprived of that interest without 7 due process of law. SeeTellier v. Fields , 280 F.3d 69, 79-80 8 (2d Cir. 2000). 9 On appeal, the defendants urge that the district court 10 erred in reading Vitek v. Jones , 445 U.S. 480 (1980), as 11 mandating especially stringent due process procedures for 12 prisoners, arguing that while notice and a hearing are generally 13 required, nothing in Vitekprohibits brief periods of prehearing 14 commitment if a timely hearing is later offered. The defendants 15 insist that courts have upheld identical prehearing commitments 16 of prisoners that the district court concluded did not satisfy 17 due process here, and that in any event the procedures employed 18 did indeed comply with due process requirements. The district 19 court looked to the Supreme Court's decision in Vitekin 20 determining what procedural protections are required before an 21 inmate can be civilly committed without his consent consistent 22 with due process standards. Bailey, 722 F. Supp. 2d at 447-48. 23 The court read Vitekto require notice, a predeprivation 24 adversarial hearing, and a written statement by the decision 25

18maker disclosing the reasons for the inmate's commitment. Id. at 1 448. 2 Vitekaddressed an as-applied challenge to the 3 constitutionality of a Nebraska statute that provided for the 4 transfer of an inmate to a psychiatric facility at the direction 5 of the State's Director of Correctional Services if a 6 psychologist or psychiatrist concluded that the prisoner 7 "'suffers from a mental disease or defect'" that the prisoner's 8 current facility could not properly treat. Vitek , 445 U.S. at 9 483. Such a transfer remained valid until the expiration of the 10 prisoner's sentence, at which point civil commitment proceedings 11 were required prior to continued confinement. Id.at 483-84. 12 The plaintiff in Vitekwas an inmate who had been 13 transferred to a psychiatric facility after setting his mattress 14 on fire while in solitary confinement. Id.at 484. The Vitek 15 Court considered whether the transfer of a prisoner to a state 16 mental hospital implicated a liberty interest triggering due 17 process protection, and concluded that the plaintiff's "objective 18 expectation" based on state law and practice that he would not be 19 transferred to a mental hospital if his condition could be 20 treated in prison did create a liberty interest requiring 21 "appropriate procedures" prior to its deprivation. Id. at 489- 22 90. The Court emphasized the "stigmatizing consequences of a 23 transfer to a mental hospital" and the "mandatory behavior 24 modification" treatment the prisoner would undergo once at that 25 hospital. Id.at 494. 26

19The district court in Vitekidentified seven safeguards 1 it concluded were required to protect the plaintiff's liberty 2 interest. Among them were pretransfer notice to the prisoner, a 3 pretransfer hearing at which the prisoner could present and 4 cross-examine witnesses, and the right to counsel. Seeid.at 5 494-95. 6 In considering these requirements, the Supreme Court 7 explained that while the State has a substantial interest in 8 "segregating and treating mentally ill patients," "[t]he interest 9 of the prisoner in not being arbitrarily classified as mentally 10 ill and subjected to unwelcome treatment is also powerful," and 11 the "risk of error . . . is substantial enough to warrant 12 appropriate procedural safeguards against error." Id. at 495. 13 The Court acknowledged that the inquiry into whether a prisoner 14 should be placed in a psychiatric facility is "essentially 15 medical," but concluded that "[t]he medical nature of the 16 inquiry . . . does not justify dispensing with due process 17 requirements. It is precisely the subtleties and nuances of 18 psychiatric diagnoses that justify the requirement of adversary 19 hearings." Id.(quotation marks and citation omitted). The 20 Court concluded that the procedures prescribed by the district 21 court were "appropriate in the circumstances present . . . ." 22 Id.at 496. 5 23

5 The requirement of legal counsel was endorsed by only a plurality of the court. Justice Powell wrote in a concurrence that although "qualified and independent assistance" must be provided, it need not take the form of a "licensed attorney." Vitek , 445 U.S. at 497 (Powell, J., concurring). 20Vitekis plainly relevant to this case. It confirms 1 the plaintiffs' contention that a prisoner has a liberty interest 2 in the essential nature of his confinement, and that this 3 interest must be safeguarded with appropriate procedures. But it 4 does not automatically follow from the VitekCourt's endorsement 5 of the procedures mandated by the district court in that case 6 that the same process is required in every case. Seeid. 7 (concluding that the procedures set forth by the district court 8 were "appropriate in the circumstances present here ." (emphasis 9 added)). The Court's acknowledgment that it is "precisely the 10 subtleties and nuances of psychiatric diagnoses that justify the 11 requirement of adversary hearings," id.at 495, similarly stops 12 short of identifying the circumstances in which an adversary 13 hearing must be held or what that hearing should entail. 14 Indeed, the facts and legal posture of Vitekdiffer 15 significantly from those before us. The plaintiff in Vitekfaced 16 confinement in a psychiatric institution for the duration of his 17 prison sentence based on the opinion of a single doctor, with no 18 opportunity for an additional hearing. The procedures at issue 19 in Vitek , therefore, provided fewer safeguards than were offered 20 to the plaintiffs here. And because the VitekCourt never 21 discussed whether the availability of a postdeprivation hearing 22 negates the need for a predeprivation hearing, its applicability 23 to this case is limited. 24 The Supreme Court's decision in Zinermon v. Burch , 494 25 U.S. 113 (1990), however, does offer guidance as to when a 26

21postdeprivation hearing would survive constitutional scrutiny. 1 There, the Court considered the case of a patient admitted to a 2 state mental health hospital after completing voluntary admission 3 forms. The patient later alleged that he was a paranoid 4 schizophrenic and had been unable to give informed consent to his 5 admission. The defendants, he asserted, should have afforded him 6 the procedural safeguards required for involuntary commitment, 7 including a hearing. Id.at 123-24. 8 Quoting Mathews v. Eldrige , 424 U.S. 319, 335 (1976), 9 the Court described the factors to be considered in determining 10 what procedural protections are necessary in a particular case: 11 "First, the private interest that will be 12 affected by the official action; second, the 13 risk of an erroneous deprivation of such 14 interest through the procedures used, and the 15 probable value, if any, of additional or 16 substitute procedural safeguards; and 17 finally, the Government's interest, including 18 the function involved and the fiscal and 19 administrative burdens that the additional or 20 substitute procedural requirement would 21 entail." 22 Zinermon , 494 U.S. at 127. 23 The ZinermonCourt observed that, applying the Mathews 24 test, it "usually has held that the Constitution requires some 25 kind of hearing beforethe State deprives a person of liberty or 26 property." Id.(emphasis in original). But, the Court 27 continued, a postdeprivation hearing might satisfy due process 28 where a predeprivation hearing is "unduly burdensome in 29 proportion to the liberty interest at stake" or "where the State 30 is truly unable to anticipate and prevent a random deprivation of 31

22a liberty interest." Id.at 132. "[W]here the State feasibly 1 can provide a predeprivation hearing," however, "it generally 2 must do so regardless of the adequacy of a postdeprivation . . . 3 remedy." Id. 4 The Court concluded that the defendants could be liable 5 to the plaintiff under his section 1983 claim for deprivation of 6 his procedural due process rights because it was foreseeable that 7 a mentally ill patient incompetent to give informed consent would 8 nonetheless sign a voluntary admission form and because the Court 9 could not "say that predeprivation process was impossible" under 10 the circumstances. Id.at 136-37. 11 The deprivation here seems to us to have been as 12 foreseeable as it was in Zinermon . As in that case, the 13 deprivation here occurred at a "predictable point," seeid.at 14 136 -- the expiration of the inmate's sentence. Nothing that 15 occurred here was random or unanticipated so as to prevent the 16 State from planning for and then providing predeprivation 17 process. Nor, as we discuss below, can it reasonably be argued 18 that predeprivation procedural protections were "unduly 19 burdensome" in comparison with the substantial liberty interest 20 at stake. 21 Application of the Mathewsbalancing test supports the 22 conclusion that predeprivation process was required here and that 23 postdeprivation remedies were constitutionally insufficient. See 24 Mathews , 424 U.S. at 334-35. With respect to the "private 25 interest" aspect of the standard, the defendants acknowledge that 26

23"involuntary commitment is a significant curtailment of liberty," 1 but argue that because of the "extremely brief" period of 2 potential prehearing commitment, the safeguards required are not 3 as significant as they would otherwise be. Appellants' Br. 30. 4 We think there can be no serious doubt that the liberty interests 5 implicated here are of a high order. Not only were the 6 plaintiffs' physical freedoms curtailed, but they were also 7 subject to specialized mental health treatment. This treatment 8 included the use of a "penile plethysmograph," which the First 9 Circuit has explained is a "strain gauge strapped to an 10 individual's genitals while sexually explicit pictures are 11 displayed in an effort to determine his sexual arousal patterns." 12 Harrington v. Almy, 977 F.2d 37, 44 (1st Cir. 1992). One can 13 imagine that to be something less than a dignity inspiring 14 experience. 15 Classification as an SVP also constitutes a fundamental 16 change in an inmate's status and privileges. An SVP committed to 17 a psychiatric hospital cannot gain release until he has secured 18 either employment or vocational training, despite the fact that 19 any potential employer must be notified of his SVP status. An 20 SVP also suffers the stigma of the label itself, which connotes a 21 likelihood of recidivist sexually violent behavior, and of a 22 diagnosis of mental illness. And although it may be true that 23 SVPs have already been convicted of sex offenses carrying 24 significant stigma, that the additional stigma is only 25 incremental does not render it illusory. 26

24As Vitekconfirmed, a prisoner –- even one convicted of 1 an atrocious crime -- maintains a liberty interest in the 2 conditions relating to the essential nature of his confinement. 3 Here, not only did those committed pursuant to the SVP Initiative 4 face a material change in the nature of their confinement, but 5 their confinement was also prolonged. 6 With regard to the second factor in the Mathewstest -- 7 "risk of an erroneous deprivation of such interest through the 8 procedures used," Zinermon , 494 U.S. at 127 -- the defendants 9 insist that the risk of such an erroneous deprivation during the 10 five-day period before a committed SVP is entitled to a hearing 11 is "slight" because of the safeguards provided in Article 9. 12 Appellants' Br. 30. The defendants' argument is not without 13 force. There were, on paper, procedures intended to mitigate the 14 risk of an erroneous deprivation. For example, three separate 15 medical professionals were required to sign off on every 16 commitment. And, as the defendants point out, fewer than 20 17 percent of those evaluated under the SVP Initiative were 18 ultimately committed. 19 Despite these safeguards, several factors increased the 20 risk that an inmate would be erroneously committed under the 21 Initiative. The OMH physicians charged with examining the 22 prisoners were unfamiliar with the standards for assessing sex 23 offenders and the likelihood of recidivism, and were evaluating 24 them using a novel standard and new tools, such as the Static 99 25 form, with which they had no experience. 26

25Although it may be dangerous to overstate the 1 importance of the fact that the Initiative was quickly put into 2 place in a politically charged environment, it is difficult to 3 ignore (as the district court did not). Because of the infancy 4 of the Initiative and the lack of training or formal procedures, 5 coupled with significant political pressure, the risk of error 6 seems to us to have been enhanced. SeeRodriguez v. City of New 7 York , 72 F.3d 1051, 1062 (2d Cir. 1995) ("Though we agree with 8 the district court that due process does not require a guarantee 9 that a physician's assessment of the likelihood of serious harm 10 be correct, . . . due process does demand that the decision to 11 order an involuntary emergency commitment be made in accordance 12 with a standard that promises some reasonable degree of 13 accuracy."). Additional safeguards would unquestionably have 14 lessened this risk. If the plaintiffs were afforded notice and a 15 hearing prior to their commitments, the decision as to whether to 16 commit would have been undertaken by a neutral decisionmaker with 17 the benefit of an adversarial hearing. 18 The defendants argue that the availability of a 19 postdeprivation hearing mitigated the risk of erroneous 20 deprivation. They point out that none of the plaintiffs 21 requested a hearing following his commitment. Although this is 22 true, the plaintiffs' filing of a habeas corpuspetition in New 23 York State court and Bailey's allegation that he did not know 24 that he could request such a hearing, suggest that the 25

26availability and contours of the process likely were not clear to 1 the plaintiffs. 6 2 With respect to the third part of the Mathewstest -- 3 the Government's interest, including the function involved and 4 the fiscal and administrative burdens that the additional or 5 substitute procedural requirement would entail, Zinermon , 494 6 U.S. at 127 -- the defendants urge that predeprivation hearings 7 would have imposed a substantial burden on the State. They note 8 that during the first month of the Initiative, eighty prisoners 9 were examined, twenty-one of whom were eventually committed, and 10 that many of these prisoners were on the verge of being released. 11 Because the SVP Initiative had begun only weeks before some of 12 the plaintiffs were scheduled for release, the defendants 13 contend, predeprivation hearings, in addition to conducting 14 psychiatric evaluations, would have diverted scarce resources 15 from the treatment of mentally ill inmates. 16 We disagree. Under the provisions of Article 9, the 17 defendants should have been prepared to present their case for 18 civil commitment at a hearing on five-days notice at any point 19 after a civil commitment was effected. It does not follow that 20 they could not have prepared for such a hearing in advance of 21 commitment without incurring substantial additional expense or 22 effort. The sole reason that holding predeprivation hearings 23

6 The record otherwise contains little detail about what the plaintiffs understood regarding the availability of postdeprivation hearings.

27would have unduly burdened the State is that a decision was made 1 to create and implement the Initiative on a compressed timeline; 2 any exceptional burden that the State faced was of its own 3 making. We do not think this fact should work in the defendants' 4 favor –- if it did, due process requirements could be curtailed 5 by delaying the establishment of proper procedures until they 6 became "too burdensome." 7 Construing the evidence in the light most favorable to 8 the plaintiffs, the facts alleged, if proven, would establish 9 that the defendants violated the plaintiffs' rights to procedural 10 due process. Even if it may be said that the district court 11 mischaracterized Vitek 's dicta as holding, we find no support for 12 the defendants' contention that a predeprivation hearing was not 13 required in the absence of emergent circumstances. The Mathews 14 test brings the defendants' violation into sharp relief: the 15 private interest at stake was significant; the risk of erroneous 16 deprivation was pronounced due to the lack of notice or an 17 adversary proceeding, the politically charged environment, and 18 the novel aspects of this initiative, and that risk would have 19 been reduced by additional procedures; and the burden to the 20 State would have been no greater predeprivation than 21 postdeprivation were it not for the State's own actions in 22 scrambling to implement the Initiative. 23

28**II. Qualified Immunity** 1 The defendants are entitled to qualified immunity if 2 they can establish either that (1) "a constitutional right was 3 [not] violated" or (2) "the right was [not] clearly established." 4 Saucier v. Katz , 533 U.S. 194, 201 (2001), overruled in part on 5 other grounds byPearson v. Callahan , 555 U.S. 223 (2009). 7As a 6 part of this inquiry, the Court considers whether "it would be 7 clear to a reasonable officer that his conduct was unlawful in 8 the situation he confronted." 8Id.at 202. 9

7This was the test applied by the district court: The "defendants are entitled to qualified immunity if they show either that plaintiffs have failed to make out a violation of constitutional right or if the right at issue was not clearly established at the time of the alleged violation." Bailey, 722 F. Supp. 2d at 449.

8There is some tension in our Circuit's cases as to whether the qualified immunity standard is of two or three parts, and whether the "reasonable officer" inquiry is part of step two -- the "clearly established" prong -- or whether it is a separate, third step in the analysis. Compare, e.g. , Okin v. Vill. of Cornwall-On-Hudson Police Dep't , 577 F.3d 415, 433 (2d Cir. 2009)(reciting two-part test and stating that "'[t]he relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted'" (quoting Saucier , 533 U.S. at 202)), withX-Men Sec., Inc. v. Pataki , 196 F.3d 56, 65-66 (2d Cir. 1999)(a governmental official is entitled to qualified immunity "in any of three circumstances": (1) if the charged conduct does not violate a constitutional right; (2) if the constitutional right "was not clearly established at the time of the conduct"; or (3) "if the defendant's action was objectively legally reasonable in light of the legal rules that were clearly established at the time it was taken" (quotation marks, brackets, and ellipses omitted)); Taravella v. Town of Wolcott , 599 F.3d 129, 133-34 (2d Cir. 2010)(describing qualified immunity analysis as "a two-part inquiry" but adding that "the qualified immunity defense also protects an official if it was 'objectively reasonable' for him at the time of the challenged action to believe his acts were lawful"). 29Qualified immunity is an affirmative defense and the 1 burden is on the defendant-official to establish it on a motion 2 for summary judgment. SeeIn re State Police Litig. , 88 F.3d 3 111, 123 (2d Cir. 1996). We have already determined that there 4 is sufficient evidence in the record to support, as a matter of 5 law, the plaintiffs' procedural due process claims. We therefore 6 turn to the question of whether the right at issue was clearly 7 established. In answering that question, we look to whether (1) 8 the right was defined with reasonable clarity, (2) the Supreme 9 Court or the Second Circuit has confirmed the existence of the 10 right, and (3) a reasonable defendant would have understood from 11 the existing law that his conduct was unlawful. Luna v. Pico , 12 356 F.3d 481, 490 (2d Cir. 2004). We have further held that 13 where the law was established in three other circuits and the 14 decisions of our own Court foreshadowed the right, the law was 15 sufficiently "well established" that its violation stripped the 16 defendant of his immunity. Varrone v. Bilotti , 123 F.3d 75, 78- 17 79 (2d Cir. 1997). 18 For a right to be clearly established, it is not 19 necessary that courts have agreed "upon the precise formulation 20 of the standard." Saucier , 533 U.S. at 202. "Assuming, for 21 instance, that various courts have agreed that certain conduct is 22 a constitutional violation under facts not distinguishable in a 23

This is not a debate we need enter inasmuch as we conclude that qualified immunity is not available to the defendants irrespective of which way the test is articulated. 30fair way from the facts presented in the case at hand, the 1 [defendants] would not be entitled to qualified immunity based 2 simply on the argument that courts had not agreed on one verbal 3 formulation of the controlling standard." Id.at 202-03. 4 The Supreme Court stated more than twenty years ago in 5 Zinermonthat "where the State feasibly can provide a 6 predeprivation hearing . . . it generally must do so regardless 7 of the adequacy of a postdeprivation . . . remedy . . . ." 8 Zinermon , 494 U.S. at 132. Unless a predeprivation hearing is 9 "unduly burdensome in proportion to the liberty interest at 10 stake" or "the State is truly unable to anticipate and prevent a 11 random deprivation of a liberty interest," predeprivation notice 12 and a hearing are required before an individual may be deprived 13 of a significant liberty interest. Id. 14 The defendants raise several arguments in support of 15 their position that the right at issue here -- notice and an 16 adversarial hearing prior to civil commitment -- was not so 17 clearly established that a reasonable person in the defendants' 18 position would know that his conduct was unlawful. The 19 defendants contend that the Second Circuit upheld the procedures 20 laid out in Article 9 in Project Release v. Prevost , 722 F.2d 960 21 (2d Cir. 1983), which examined the constitutionality of Article 22 9's provision allowing hospitalization for up to sixty days 23 without a hearing unless one is requested. Project Release 24 dealt, however, with the facial validity of Article 9, and 25 explicitly left open the possibility of an as-applied challenge. 26
31Id.at 971. The plaintiffs do not contend that Article 9 is 1 unconstitutional when utilized to take an acutely dangerous and 2 mentally ill person off the streets –- the basis upon which we 3 upheld the statute in Project Release

. 4 In that decision, we concluded that involuntary 5 commitment without an automatic hearing within 48 hours was 6 constitutional when dealing with "persons with a mental illness 7 'for which care and treatment in a hospital is essential to such 8 persons' welfare and whose judgment is so impaired that [they 9 are] unable to understand the need for such treatment.'" Id. at 10 972 (quoting MHL §§ 9.27, 9.01). That is not the population at 11 issue here, nor the standard that was applied. 12 The defendants also point out that the New York 13 Appellate Division "found no constitutional violation in 14 plaintiffs' own cases when plaintiffs raised the identical due 15 process claim on state habeas review." Appellants' Br. 37. 16 (emphasis omitted). The defendants refer to Stateex rel. 17 Harkavy v. Consilvio , 29 A.D.3d 221, 812 N.Y.S.2d 496 (1st Dep't 18 2006), but that decision was reversed by the New York Court of 19 Appeals, seeStateex rel. Harkavy v. Consilvio , 7 N.Y.3d 607, 20 859 N.E.2d 508, 825 N.Y.S.2d 702 (2006). And although the Court 21 of Appeals in Harkavydid not decide the constitutionality of 22 applying Article 9 to prisoners, in a concurrence, as we have 23 seen, Judge Smith noted that it "would raise serious 24 constitutional problems," because the plaintiffs had all been in 25 prison for several years before civil commitment procedures were 26
32initiated and there was no "sudden, unforseen emergency" that 1 would require their immediate commitment without prior notice or 2 a hearing. Id.at 615 (Smith, J., concurring). 3 The defendants cite several cases in which they contend 4 that prehearing transfer and commitment of prisoners and sex 5 offenders has been held to be constitutional. In Gay v. Turner , 6 994 F.2d 425 (8th Cir. 1993) (per curiam), for example, the 7 Eighth Circuit affirmed a grant of summary judgment for a 8 defendant on the plaintiff's due process claim where the 9 plaintiff, an inmate, had been transferred to a state mental 10 hospital without a hearing. Id.at 426. That decision, however, 11 was based on the plaintiff having signed transfer forms, and her 12 failure to adduce any evidence that her consent was not 13 voluntary. Id.at 427. 14 The defendants also rely on Aruanno v. Hayman , 384 F. 15 App'x 144 (3d Cir.), cert. denied , 131 S.Ct. 835 (2010), in which 16 the Third Circuit -- in a non-precedential opinion -- upheld a 17 state-law provision allowing a court to order temporary 18 commitment based on an ex partesubmission from the State 19 Attorney General. Id.at 150. Any individual committed under 20 the statute was entitled to a hearing within twenty days of the 21 commitment order. Id. 22 The factual circumstances in Aruannodiffer 23 significantly from those here. New Jersey had initiated civil 24 commitment proceedings nearly a year before the plaintiff's 25 release date, but was unable to hold a hearing due in part to the 26
33plaintiff's "repeated insistence that he be appointed new 1 counsel." Id.at 145. In addition, Aruanno was temporarily 2 committed pursuant to a judicial order, albeit one based on an ex 3 partesubmission. Id.at 148 n.8. Aruanno suffered from 4 schizophrenia and refused to take his medication, which a doctor 5 later testified presented a "very high" risk of future violence. 6 Id.at 146. The non-precedential opinion was issued, moreover, 7 over Judge McKee's dissent, which argued that "absent exigent 8 circumstances, no justification exists for denying [the 9 plaintiff] his due process right to notice prior to his 10 involuntary commitment under the [act]." Id.at 152-53. He 11 continued, "[i]t is clear that post-deprivation hearings are 12 appropriate and constitutionally permissible in emergency 13 situations where there is no realistic opportunity to afford 14 prior notice to one whom the state wants to involuntarily commit. 15 That is simply not the situation here . . . ." Id.at 153. We 16

agree. 17 The defendants also point to the procedures in the 18 federal sex-offender commitment statute, 18 U.S.C. § 4248. Under 19 that statute, the Department of Justice must certify to a federal 20 district court that a prisoner is "sexually dangerous," at which 21 point the statute "stays the individual's release from 22 prison . . . giving the Government an opportunity to prove its 23 claims at a hearing." United States v. Comstock , 130 S.Ct. 1949, 24 1954 (2010). The prisoner is then afforded counsel and an 25 adversarial hearing prior to his civil commitment. Id. 26
34According to the defendants, the procedures set forth 1 in Article 9 are moreprotective than are those in the federal 2 statute because the latter permits the individual's release to be 3 stayed for up to seventy-five days or more before his commitment 4 hearing. See18 U.S.C. § 4247(b); see alsoUnited States v. 5 Shields , 522 F. Supp. 2d 317, 334 (D. Mass. 2007). 9What the 6 defendants fail to acknowledge, however, is that the federal 7 statute permits a temporary stay of release prior to a commitment 8 hearing; it does not permit, as was the case here, civil 9 commitment followed by the opportunity for a hearing. Here, the 10 question is whether an individual must be afforded the 11 opportunity for a hearing beforehe is civilly committed to a 12 psychiatric facility. Vitek 's emphasis on the "stigmatizing 13 consequences of transfer to a mental hospital" and the "mandatory 14 behavior modification" treatment that prisoners undergo once at 15 the hospital, Vitek , 445 U.S. at 494, suggests there is an 16 important difference between holding an inmate for a brief period 17 beyond his release date for the purpose of providing process 18 before civil commitment and subjecting him to commitment in a 19 psychiatric facility in advance of any hearing. 20

9 In Shields , the district court declined to invalidate the federal sex-offender statute on a facial due process challenge. The court did, however, find that the lack of a probable cause hearing after certification "raises serious constitutional questions." Shields , 522 F. Supp. 2d at 333. The court concluded that, in order to avoid interpreting the act itself as unconstitutional, it would construe it to require a hearing "within forty-eight hours after a certified individual is detained beyond his scheduled release date," unless there were "exigent or extraordinary circumstances." Id.at 337. 35We ultimately agree with the district court that "the 1 basic proposition that due process requires a predeprivation 2 hearing unless there is an immediate danger to society" was well 3 established prior to 2005. Bailey, 722 F. Supp. 2d at 451. 4 Despite the litany of cases cited by the defendants to suggest 5 that due process tolerates civil commitment of inmates without 6 either notice or a hearing, each of those cases involved critical 7 factors not present here. In none of the cases was a civil 8 commitment effected without notice or a predeprivation hearing 9 where the inmate was safely confined, and, indeed, where the 10 standard the inmate met was not one of immediate and acute 11 dangerousness but rather potential recidivism five, ten, or 12 fifteen years after his release. See, e.g.Glass v. Mayas , 984 13 F.2d 55, 57 (2d Cir. 1993) (upholding involuntary commitment 14 without a predeprivation hearing where the committed individual 15 "was hospitalized following two reports he was threatening an 16 individual with a gun," had displayed behavior described by those 17 who examined him as "hostile, guarded, angry, suspicious, 18 uncooperative, and paranoid," and "had an extensive psychiatric 19 history, which included a history of violent behavior"). The 20 defendants offer no Supreme Court or Second Circuit precedent for 21 the proposition that due process is satisfied if an individual in 22 the plaintiffs' position has the opportunity to request a hearing 23 afterhe has been labeled an SVP and civilly committed. 24 Except for emergent or otherwise unusual circumstances, 25 such as where an emergency makes it necessary for the State to 26
36act immediately to avoid imminent harm to the person being 1 restrained or to the public, or where predeprivation process is 2 highly impracticable, the Supreme Court has long held that "the 3 Constitution requires some kind of a hearing beforethe State 4 deprives a person of liberty." Zinermon , 494 U.S. at 127 5 (emphasis in original). See alsoUnited States v. James Daniel 6 Good Real Prop. , 510 U.S. 43, 62 (1993) ("Unless exigent 7 circumstances are present, the Due Process Clause requires the 8 Government to afford notice and a meaningful opportunity to be 9 heard before seizing real property . . . ."); Cleveland Bd. of 10 Educ. v. Loudermill , 470 U.S. 532, 542 (1985) ("An essential 11 principle of due process is that a deprivation of life, liberty, 12 or property be preceded by notice and opportunity for hearing 13 appropriate to the nature of the case." (quotation marks and 14 citation omitted)); Vitek , 445 U.S. at 496 ("[N]otice is 15 essential to afford the prisoner an opportunity to challenge the 16 contemplated action and to understand the nature of what is 17 happening to him."); Burtnieks v. City of New York , 716 F.2d 982, 18 988 (2d Cir. 1983) (observing that "the existence vel nonof an 19 emergency . . . is a material fact" in determining whether a 20 predeprivation hearing is constitutionally required). 21 Furthermore, the decision to apply the procedures of 22 Article 9 to the plaintiffs was made despite the fact that there 23 was a law in place, Correction Law § 402, which outlined civil 24 commitment procedures for those already incarcerated and which 25 clearly provided for a predeprivation hearing. We think 26
37reasonable persons in the defendants' positions would have 1 understood that, absent exigent circumstances not present here, 2 it was unconstitutional to civilly commit inmates to a 3 psychiatric facility prior to any notice or adversarial hearing. 4 Using the words of the district court, in the absence of any 5 "immediate danger to society," a predeprivation hearing was 6 required before civilly committing an inmate and this requirement 7 was "so obvious that no reasonable defendant official could have 8 failed to miss it." Bailey, 722 F. Supp. 2d at 450. The 9 defendants are therefore not entitled to the benefit of qualified 10 immunity. 11 **III. Plaintiffs' Additional Claims** 12 The defendants, citing Sadallah v. City of Utica , 383 13 F.3d 34 (2d Cir. 2004), argue that because they are entitled to 14 qualified immunity on the plaintiffs' procedural due process 15 claims, the defendants are also entitled to summary judgment on 16 the plaintiffs' remaining federal and state claims. The court in 17 Sadallahexplained that "[n]ormally, we would not have 18 jurisdiction to consider plaintiffs' [additional] claims . . . 19 because only the issue of . . . entitlement to qualified immunity 20 was immediately appealable. When, however, an appellate court 21 'has taken jurisdiction over one issue in a case, it may, in its 22 discretion, exercise jurisdiction over an independent but related 23 question that is inextricably intertwined with the [appealable 24 issue] or is necessary to ensure meaningful review of that 25 issue.'" Id.at 39 (quoting Ierardi v. Sisco , 119 F.3d 183, 189 26 38(2d Cir. 1997)). Specifically, the defendants urge that because 1 the gist of the plaintiffs' other claims is the existence of a 2 deliberate conspiracy to violate the plaintiffs' rights, those 3 claims must fail because the right at issue was not clearly 4 established. 5 We decline to exercise jurisdiction over the 6 plaintiffs' other claims. Reaching these additional claims is 7 not necessary to ensure meaningful review of the qualified 8 immunity question, nor are the claims "inextricably intertwined" 9 with that issue. Furthermore, as a practical matter, because we 10 conclude that qualified immunity does not attach to the 11 procedural due process claims, there would be no basis for 12 dismissing the other claims against the defendants. 13 **IV. Plaintiffs' Summary Judgment Motion** 14 Finally, the plaintiffs assert that the district court 15 erred in not granting summary judgment in their favor on their 16 procedural due process claims after determining that the 17 defendants were not entitled to qualified immunity, and, in a 18 later opinion, that each defendant participated in the 19 constitutional deprivation. 20 The plaintiffs mischaracterize the district court's 21 opinion. The court concluded that the plaintiffs had adduced 22 enough evidence of personal involvement to survive summary 23 judgment –- not that "the defendants did not dispute their 24 'participat[ion] in the creation and implementation' of the SVP 25 initiative." Appellees' Br. at 60. The district court noted 26 39that the defendants "dispute the extent and materiality of such 1 involvement" and determined that the question must go to the 2 jury. Bailey, 2010 WL 4237071, at *4, 2010 U.S. Dist. LEXIS 3 113766, at *12. The factual disputes that the district court 4 identified as precluding summary judgment have not been resolved, 5 and we think it impossible for us to do so on the current record. 6 Neither is this a question "inextricably intertwined" with the 7 resolution of the qualified immunity issue. 8

**CONCLUSION** 9 We have considered all of the parties' arguments, and 10 for the reasons set forth above, we affirm the decision of the 11 district court. 12

40