Werner v. Wall, No. 14-1746 (7th Cir. 2016)
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In 1999, Werner was convicted of multiple sex offenses and was a Special Bulletin Notification (SBN) sex offender under Wisconsin law. Werner’s release was deferred until his 2010 mandatory release date. Werner and his probation agents were unable to secure an approved residence as required by his rules of supervision, so the Department of Corrections detained him pursuant to Administrative Directive No. 02‐10, under which persons who had reached their mandatory release date but could not secure approved housing were detained in the county jail at night but permitted to seek housing during certain hours of the day. In 2011, he moved into an approved residence. Werner filed suit under 42 U.S.C. 1983. The district court permitted Werner to proceed on individual‐capacity claims under the Eighth Amendment and the Due Process Clause and to maintain an official‐capacity claim, for injunctive relief, that AD 02‐10 violated the Due Process and Ex Post Facto Clauses. The court ultimately granted the defendants summary judgment on all claims, finding the Eighth and Fourteenth Amendment claims barred by qualified immunity and that his challenge to the policy was moot. AD 02‐10 was replaced in 2015 by AD 15‐12, under which SBN sex offenders lacking approved residences are no longer held in jail. Werner has twice violated probation and is again incarcerated. The Seventh Circuit affirmed; clearly established law at the time would not have notified the defendants that the AD 02‐10 procedures were unlawful.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 14 1746 PATRICK J. WERNER, Plaintiff Appellant, v. EDWARD F. WALL, et al., Defendants Appellees. ____________________ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:12 cv 00096 CNC — Charles N. Clevert, Jr., Judge. ____________________ ARGUED APRIL 6, 2016 — DECIDED SEPTEMBER 1, 2016 ____________________ Before FLAUM, RIPPLE, and HAMILTON, Circuit Judges. RIPPLE, Circuit Judge. In 1999, Patrick Werner was con victed of multiple sex offenses in Wisconsin state court. The state trial court sentenced him to ten years of imprisonment and to ten consecutive years of probation. Because Mr. Wer ner had been convicted of more than one sex offense, he was a Special Bulletin Notification (“SBN”) sex offender under Wisconsin law. After a denial of parole in late 2009, Mr. Wer ner’s release was deferred until his mandatory release date of 2 No. 14 1746 March 21, 2010. At that time, Mr. Werner and his probation agents were unable to secure an approved residence as re quired by his rules of supervision. Consequently, the Wiscon sin Department of Corrections (“DOC”) Division of Commu nity Corrections detained him pursuant to Administrative Di rective No. 02 10 (“AD 02 10” or “the directive”), which set out a procedure addressing release eligible SBN sex offenders who lacked an approved residence. Under AD 02 10, persons who had reached their mandatory release date but could not secure housing that was approved under their rules of super vision were detained in the county jail during the night but permitted to seek appropriate housing during certain hours of the day. Authorities employed this arrangement to prevent a violation of the rules of supervision. Officials detained Mr. Werner under this arrangement sporadically between March 16, 2010, and July 1, 2011, when he finally located and moved into an approved residence. Mr. Werner brought this action pro se in the district court under 42 U.S.C. § 1983. He claimed that his continued deten tion beyond his mandatory release date was unlawful and named as defendants various DOC officials and several of his probation agents. In an initial screening order, the district court permitted Mr. Werner to proceed on the individual ca pacity claims under the Eighth Amendment and the Due Pro cess Clause of the Fourteenth Amendment. It also permitted him to maintain an official capacity claim for injunctive relief on the ground that AD 02 10 violated the Due Process and Ex Post Facto Clauses. The district court ultimately granted sum mary judgment in favor of the defendants on all of Mr. Wer ner’s claims. It concluded that his Eighth and Fourteenth Amendment claims were barred by qualified immunity and that his official capacity challenge to the directive as a policy No. 14 1746 3 was moot. Mr. Werner timely appealed the district court’s de cision with respect to his individual capacity claims. In due course, we recruited counsel and requested additional brief ing. After the benefit of briefing and oral argument, we agree with the district court that the defendants in this case are en titled to qualified immunity. We therefore affirm the district court’s judgment with respect to each of Mr. Werner’s claims. I BACKGROUND A. In 1999, the Circuit Court of Brown County, Wisconsin, convicted Mr. Werner of second degree sexual assault of a child and of attempted child enticement. The court sentenced him to ten years in prison with ten consecutive years of pro bation. After his parole was denied in late 2009, Mr. Werner’s release was deferred until his mandatory release date of March 21, 2010. Wisconsin law requires that any person con victed of a sex offense and then released to parole or extended supervision be placed initially in the county where the person resided on the date of the offense, the county where the per son was convicted, or a sex offender treatment facility. Wis. Stat. § 301.03(20)(a). Mr. Werner was convicted in Brown County, and the Division of Community Corrections sought 4 No. 14 1746 1 to place him there. Because of Mr. Werner’s multiple sex of fense convictions, he also was designated an SBN sex of fender. This designation required the Division of Community Corrections to provide notice of his placement in Brown County to law enforcement officials in that community. See id. § 301.46(2m)(am). Wisconsin law provided still more restrictions. At the time of Mr. Werner’s mandatory release date in 2010, the rules of supervision for all sex offenders required them to obtain and to maintain an approved residence; they were not permitted to be homeless because of the risk of recidivism. Mr. Werner’s Standard Sex Offender Rules consequently provided, in rele vant part: 5. You shall not reside nor “stay” overnight in any place other than a pre approved residence without prior agent approval. “Overnight” is defined as the daily period of time between the hours of 8 p.m. and 8 a.m. unless redefined by your agent in advance. … 1 Although the statute provides multiple placement options, see Wis. Stat. § 301.03(20)(a), the record indicates, and the district court found, that the Division of Community Corrections had to place Mr. Werner in Brown County, the county of his conviction. It is not clear why this was the case. However, Mr. Werner does not argue that he could have been released somewhere other than Brown County. No. 14 1746 5 11. You shall fully comply with all sex offender registry requirements as applicable and di rected by your agent and/or required by stat ute.[2] SBN sex offenders in particular were required to “provide a specific, verifiable address prior to release from a correctional 3 institution … subject to the department’s approval.” In deter mining whether to approve a proposed residence, agents were required to consider, among other things, the “[p]rox imity to the SBN offender’s victim(s), elementary or second ary schools, parks and licensed or certified day care provid 4 ers.” There were still more restrictions, imposed by a combina tion of department rules and community ordinances. Among the thirty nine Rules of Community Supervision, the first stated: 1. You shall avoid all conduct which is in viola tion of federal or state statute, municipal or county ordinances, tribal law or which is not in the best interest of the public welfare or your re habilitation.[5] 2 R.90 3. 3 R.93 2 at 1. 4 Id. 5 R.90 2 at 1. 6 No. 14 1746 Brown County had over a dozen ordinances in place that re 6 stricted where registered sex offenders could reside. Both the Standard Sex Offender Rules and the Rules of Community Su pervision provided that a violation of any rule would subject the offender to possible revocation of his or her probation, pa role, or extended supervision. Therefore, residing in any place forbidden by local ordinance constituted a violation of these rules and subjected Mr. Werner to possible revocation of his probation. Wisconsin authorities had wrestled with the problem cre ated by the confluence of these provisions for quite a while before Mr. Werner’s situation came to the fore. In 2002, nearly a decade before Mr. Werner’s mandatory release date, the Di vision of Community Corrections had fashioned an adminis trative scheme to address this dilemma in releasing convicted sex offenders to communities with restrictive sex offender or dinances. Responding to several Wisconsin Court of Appeals decisions requiring that sex offenders be released on their mandatory release date regardless of whether they had ap proved housing, the Division of Community Corrections promulgated AD 02 10, which detailed the department’s “Procedures for SBN Offenders Lacking Approved Resi 7 dences.” Relying explicitly on the DOC’s existing authority to “take[] into custody and detain[]” an offender on super vised release “[t]o prevent a possible violation,” Wis. Admin. 6 During the summary judgment stage in the district court, the defendants submitted a document containing a very general description of these or dinances. See R.93 1. 7 R.93 2 at 1. No. 14 1746 7 8 Code DOC § 328.22(2)(d) (2002), AD 02–10 set out the follow ing: Approved Residence Requirement An approved residence is a standard require ment of supervision for all sex offenders. Special Bulletin Notification (SBN) offenders must pro vide a specific, verifiable address prior to re lease from a correctional institution. The pro posed residence is subject to the department’s approval. … … Lack of Approved Residence After Release Wisconsin law requires the Department of Cor rections to release offenders on their mandatory release dates. The decisions of the Court of Ap peals in State ex rel. Woods v. Morgan, 224 Wis 2d, 534, 591 N.W.2d 922 (Ct. App. 1999) and State ex rel. Olson v. Litscher, 233 Wis.2d 685, 608, N.W.2d 425 (Ct. App. 2000) require that prison ers be released upon reaching mandatory re lease, whether or not an approved residence has been found. If, upon release, a SBN offender does not have a residence, which the department has approved, the offender shall be directed to secure an ap proved residence by the end of the workday. 8 This provision is now located at Wisconsin Administrative Code DOC § 328.27(2)(d). 8 No. 14 1746 The SBN offender shall be permitted to con duct an “unfettered” search for housing. This means the SBN offender shall be permitted to leave the presence of DOC staff to search for housing. In order to accomplish this, the agent shall require the SBN offender to be accompa nied by an approved chaperone. The SBN of fender shall also be required to provide an itin erary, prior to leaving the agent’s presence, and to keep a log of movements, appointments and personal contacts. The SBN offender shall wear an [electromagnetic pulse (“EMP”)] transmitter at all times. The chaperone shall be provided with a cellular phone and an EMP “scanner.” The SBN offender is not required to remain in the physical presence of the chaperone at all times during the search for housing. However, the SBN offender will be required to remain within range of the EMP scanner. The chaper one must also be provided a copy of the SBN of fender’s rules and must agree to neither assist nor encourage the SBN offender to violate any rule. The chaperone will have no authority to detain or impede the SBN offender. If the SBN offender does not secure an approved residence by 5:00 p.m. and the department has no alternative housing resources in the com munity of release, the SBN offender may be de tained in the county jail, to prevent a violation, pursuant to Wis. Admin. Code DOC 328.22(2)(d). The SBN offender shall be released No. 14 1746 9 from custody the next workday, to continue to search for an approved residence. The require ments for the search remain the same: EMP, provide a written itinerary, keep a log of move ments and be accompanied by an approved chaperone. If any requirement is unmet, the SBN offender shall remain in custody, until all requirements can be met. … Procedures Upon Locating Residence When an appropriate residence has been lo cated, the agent will notify local law enforce ment, who shall have the opportunity to notify the community before the SBN offender estab lishes residence.[9] B. Mr. Werner was assigned three different probation agents during the time period he was under the supervision of the Division of Community Corrections. Although he was still in carcerated, Agent Amanda Martin received Mr. Werner’s file on November 12, 2009, the day before his parole was denied and his release deferred. On December 1, 2009, Agent Martin discussed with Mr. Werner his housing and employment op tions. She described Brown County’s sex offender ordinances, the procedures set out in AD 02 10 should he be unable to se cure an approved residence before his mandatory release 9 R.93 2 at 1–2 (emphases in original). 10 No. 14 1746 date, and the global positioning satellite (“GPS”) tracker that Mr. Werner would be required to carry on release. Over the next several months, while Mr. Werner still was incarcerated, Agent Martin investigated numerous potential residences proposed by Mr. Werner, his social worker, and his mother; however, she determined that she could not approve any of these proposed residences. Agent Martin also arranged a chaperone, pursuant to AD 02 10, with whom Mr. Werner could search for housing for four hours per weekday. On March 4, 2010, Agent Martin and her supervisor, Lori Richgels, met with law enforcement officials to discuss Mr. Werner’s release plan and to determine the appropriate level of community notification. On March 16, 2010, five days before his mandatory release date, Mr. Werner was trans ferred from a state penitentiary to the Division of Community Corrections office in Green Bay. Agent Martin completed the intake process with Mr. Werner, which included reviewing the process for mandatory GPS monitoring, the sex offender registry requirements, and the procedure for sex offender housing searches. Mr. Werner reviewed and signed his Rules of Community Supervision and Standard Sex Offender Rules, as well as paperwork concerning the chaperone service. Be cause Mr. Werner had not secured an approved residence and the department had no alternative housing resources in the community, AD 02 10 applied and Mr. Werner was booked into the Brown County Jail to prevent a probation violation. For the next several months, Mr. Werner, with the assistance of Agent Martin, sought appropriate housing under the pro cedures outlined in AD 02–10. In October 2010, Mr. Werner violated his supervision rules by possessing contraband and making threatening comments No. 14 1746 11 to his pod mates at the Brown County Jail. He agreed to an Alternative to Revocation (“ATR”), under which he would spend ninety days at a state penitentiary; he began serving the ATR on December 1, 2010. Soon after, Agent Robert Fusfeld replaced Agent Martin as Mr. Werner’s probation agent. Mr. Werner was released back to the Division of Community Corrections office in Green Bay on March 1, 2011. For the next several months, he continued to search for approvable hous ing under AD 02 10. On June 1, 2011, Mr. Werner located a tentative residence in Bellevue, Wisconsin. Agent Fusfeld in vestigated the residence, approved it, and began arrange ments for Mr. Werner’s release. On June 22, 2011, Agent Erin Murto replaced Agent Fusfeld; she continued to arrange for Mr. Werner to move into the residence in Bellevue that Agent Fusfeld had approved. Mr. Werner moved into the residence on July 1, 2011. How ever, in November 2011, Mr. Werner again violated the terms of his supervision. His probation was revoked on April 23, 2012, and he was ordered by an Administrative Law Judge (“ALJ”) to return to prison for two years, four months, and 10 three days. On November 16, 2012, Mr. Werner again was released, 11 this time to a transitional living program in Green Bay. On 10 See Wis. Admin. Code HA § 2.05 (outlining Wisconsin’s revocation pro cess). 11 According to the record, Mr. Werner had requested initially that he be placed at the transitional living program in Green Bay upon his manda tory release date in March 2010. At the time, however, the transitional liv ing program was too close to a park under the applicable sex offender or 12 No. 14 1746 February 15, 2013, however, Mr. Werner violated the rules of his supervision by, among other things, sending a sexually explicit message to a sixteen year old girl. According to the State, Mr. Werner’s probation was revoked, and he is cur rently incarcerated at a state penitentiary. The parties also in form us that AD 02 10 was replaced in March 2015 by AD 15 12, under which SBN sex offenders lacking approved resi dences are no longer held in jail until they can secure an ap proved residence. C. On January 31, 2012, Mr. Werner brought this action pro se in the United States District Court for the Eastern District of Wisconsin under 42 U.S.C. § 1983, alleging that he was un 12 lawfully detained from March 16, 2010, until July 1, 2011. dinance. Mr. Werner requested an exemption from the Green Bay Sex Of fender Residence Board but was denied. In August 2012, Green Bay re vised its ordinance to permit sex offenders to move directly to a transi tional living program without the Board’s prior approval. This cleared the way for Mr. Werner to be placed there in November 2012, which took him out of the purview of AD 02 10. 12 As our recitation of the facts makes clear, large portions of Mr. Werner’s detention over this period of time were authorized independently of AD 02 10. For example, when Mr. Werner violated his terms of supervision in October 2010, the DOC’s authority to detain him would have derived ei ther from Wisconsin Administrative Code DOC § 328.22(2)(a), which per mits detention “[f]or investigation of an alleged violation,” or from DOC § 328.22(2)(b), which permits detention “[a]fter an alleged violation … to determine whether to commence revocation proceedings.” Mr. Werner also served a ninety day Alternative to Revocation sentence from Decem ber 1, 2010, until March 1, 2011. Because we hold that the defendants in No. 14 1746 13 Mr. Werner sought monetary damages and injunctive relief. He named as individual defendants: DOC Secretary Gary Hamblin; Division of Community Corrections Regional Chief Rose Snyder Spaar; Division of Community Corrections Ad ministrator Denise Symdon; Division of Community Correc tions Field Supervisors Thomas Wickeham and Lori Richgels; and Agents Martin, Fusfeld, and Murto (collectively, “the de fendants”). In a screening order, the district court allowed Mr. Wer ner’s Eighth Amendment and due process claims, based on his continued detention beyond his mandatory release date, to proceed against Agents Martin, Fusfeld, and Murto, and Supervisors Wickeham and Richgels. The district court also allowed him to go forward with official capacity claims for 13 injunctive relief against all of the named defendants on the ground that AD 02 10 violated the Due Process and Ex Post Facto Clauses of the Constitution. The defendants moved for summary judgment on each of these claims. Mr. Werner also moved for summary judgment, but the district court denied his motion on procedural grounds. Several months later, Mr. Werner filed a number of documents that the court ulti mately construed as a motion for summary judgment and a response in opposition to the defendants’ motion. this case are shielded from civil liability, we need not determine precisely the time period that Mr. Werner was held under the challenged directive. 13 On October 27, 2012, Edward Wall succeeded Hamblin as DOC Secre tary. Because Mr. Werner had sued Hamblin, a public officer, in his official capacity, the district court granted the defendants’ motion to substitute Secretary Wall as a party under Federal Rule of Civil Procedure 25(d). R.119 at 1. 14 No. 14 1746 On March 27, 2014, the district court granted summary judgment in favor of the defendants. The court concluded that Mr. Werner’s Eighth Amendment and due process claims for damages against the individual defendants were barred by qualified immunity because it was not clearly established at the time that AD 02 10 violated the constitutional rights of SBN sex offenders. It further held that Mr. Werner’s official capacity claims that AD 02 10 was unconstitutional were moot because he no longer was subject to the directive. Acting pro se, Mr. Werner timely appealed the court’s 14 judgment, and we recruited counsel to assist him. We or dered the parties to address at least the following issues: (1) Do the facts alleged by Werner (including his detention in county jail beyond his release date) state a claim under the Eighth Amendment or the Due Process Clause of the Fourteenth Amendment? (2) If Werner has stated a constitutional claim for damages, are the defendants entitled to qualified immunity for detaining Werner in county jail after his release date?[15] 14 The court expresses its appreciation to counsel and his law firm for their excellent representation of their client. 15 Dkt.52. No. 14 1746 15 II DISCUSSION The district court granted summary judgment on Mr. Wer ner’s Eighth Amendment16 and due process claims because it concluded that the defendants were entitled to the protections 17 of qualified immunity. “We review a district court’s grant of summary judgment based on qualified immunity de novo, ac cepting all facts and inferences in the light most favorable to the non moving party.” Zimmerman v. Doran, 807 F.3d 178, 182 (7th Cir. 2015). Qualified immunity shields government officials from civil “liability ‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Purvis v. Oest, 614 F.3d 713, 720 (7th Cir. 2010) (quoting Harlow v. Fitz gerald, 457 U.S. 800, 818 (1982)). In determining whether qual ified immunity applies, “we must address two questions: [1] whether the plaintiff’s allegations make out a deprivation of a constitutional right, and [2] whether the right was clearly established at the time of defendant’s alleged misconduct.” McAllister v. Price, 615 F.3d 877, 881 (7th Cir. 2010). At one time, the Supreme Court required categorically that we conduct these two inquiries sequentially in order to avoid stagnation in the development of constitutional law. See 16 The Eighth Amendment applies here to Wisconsin through the Four teenth Amendment. Robinson v. California, 370 U.S. 660, 666 (1962). 17 Mr. Werner concedes that his official capacity claims for injunctive re lief on the ground that AD 02 10 as a policy is unconstitutional are now moot because the directive is no longer in effect. We therefore do not ad dress them. Mr. Werner’s individual claims for damages, of course, are not affected by this development. 16 No. 14 1746 Saucier v. Katz, 533 U.S. 194, 201 (2001). Under this framework, we had to determine “first if the alleged facts described a legal violation, and only if they did, mov[e] on to the question whether the law was clearly established.” Mordi v. Zeigler, 770 F.3d 1161, 1165 (7th Cir. 2014). The Court relaxed this “rigid order of battle” in Pearson v. Callahan, 555 U.S. 223 (2009). It held that “the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the 18 particular case at hand.” Id. at 236. In some situations, adherence to the traditional two step approach is appropriate. See id. (recognizing that it is “often beneficial” to follow “the Saucier protocol”). Nevertheless, the circumstances of the present case make it advisable to avail ourselves of the latitude now afforded us. Id. at 241 (“Adher ence to Saucier’s two step protocol departs from the general rule of constitutional avoidance and runs counter to the older, wiser judicial counsel not to pass on questions of constitution ality unless such adjudication is unavoidable.” (alteration 19 omitted) (internal quotation marks omitted)). Indeed, there are several reasons that counsel that we not address defini tively the constitutional issue. First, the underlying adminis 18 See also Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (exercising this dis cretion); City and Cty. of S.F. v. Sheehan, 135 S. Ct. 1765, 1775 (2015) (same); Mordi v. Zeigler, 770 F.3d 1161, 1165 (7th Cir. 2014) (same). 19 See also Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012) (“[Pearson’s] ap proach comports with our usual reluctance to decide constitutional ques tions unnecessarily.”). No. 14 1746 17 trative directive is no longer operable. Secondly, the appro priate analysis for claims of detained individuals not subject to sentences of incarceration is a difficult question, and it is easy for an intermediate appellate tribunal to lose its footing on the shifting sands of present day case authority. For a long time, we have recognized that the treatment of a detained per son not serving a sentence of incarceration is governed by the 20 Due Process Clause, but we often have borrowed Eighth 21 Amendment standards as a rule of decision. We also have recognized, of course, that a person serving a sentence of pro bation or parole has a limited liberty interest in his freedom that cannot be curtailed without the procedural protections of notice and hearing. See Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973); Morrissey v. Brewer, 408 U.S. 471, 482 (1972). Yet, when confronted with the failure to release a person because of an error in the computation of his sentence, we have relied on 20 See Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d 650, 664 (7th Cir. 2012) (holding that “[b]ecause Rice was a pretrial detainee, it is the due process clause of the Fourteenth Amendment rather than the Eighth Amend ment’s proscription against cruel and unusual punishment which is the source of [his] right”); see also Bell v. Wolfish, 441 U.S. 520, 535 (1979) (“[C]onditions or restrictions of pretrial detention … implicate only the protection against deprivation of liberty without due process of law.”). 21 See Rice, 675 F.3d at 664 (noting that “courts still look to Eighth Amend ment case law in addressing the claims of pretrial detainees, given that the protections of the Fourteenth Amendment’s due process clause are at least as broad as those that the Eighth Amendment affords to convicted prison ers, and the Supreme Court has not yet determined just how much addi tional protection the Fourteenth Amendment gives to pretrial detainees” (citations omitted)). 18 No. 14 1746 the principles of the Eighth Amendment. See Campbell v. Pe 22 ters, 256 F.3d 695 (7th Cir. 2001); Burke v. Johnston, 452 F.3d 23 665 (7th Cir. 2006). But cf. Armato v. Grounds, 766 F.3d 713 (7th Cir. 2014) (analyzing a similar problem under both 22 In Campbell v. Peters, 256 F.3d 695 (7th Cir. 2001), Campbell had been convicted of residential burglary and sentenced to a prison term and a consecutive term of mandatory supervised release (“MSR”). Id. at 697. While serving the MSR term, Campbell was arrested and convicted of un lawful use of a weapon by a felon and sentenced to a two year prison term; his burglary MSR was revoked. Id. Upon returning to prison, Campbell committed several offenses that resulted in revocation of the good conduct credits he had earned while serving his burglary prison term. Id. at 697– 98. When Campbell eventually was released, he filed a § 1983 action claim ing that his good conduct credits had been revoked improperly under Il linois law, and, therefore, that he had been wrongfully detained beyond his proper release date in violation of the Eighth and Fourteenth Amend ments. Id. at 699. As a general matter, we agreed with Campbell’s premise that, “if through deliberate indifference to the requirements of state law the correctional officials kept him imprisoned too long, his Eighth Amend ment rights were violated.” Id. at 700. Nevertheless, we held that the de fendants were entitled to qualified immunity because “it was not apparent [at the time] that this kind of state law mistake rose to the level of an Eighth Amendment violation.” Id. at 701. We did not consider the merits of Campbell’s due process claim. Id. at 702. 23 In Burke v. Johnston, 452 F.3d 665 (7th Cir. 2006), Burke, who was incar cerated, brought a § 1983 action claiming that Wisconsin’s deliberate in difference to his requests for credit for time he had spent in jail resulted in an unconstitutional prolonging of his incarceration. Id. at 668. Relying on Campbell, “we agree[d] that incarceration after the time specified in a sen tence has expired violates the Eighth Amendment if it is the product of deliberate indifference.” Id. at 669. Ultimately, however, we remanded the case without deciding whether Burke had prevailed on such a claim. Id. at 670. No. 14 1746 19 24 Eighth Amendment and procedural due process principles). Other circuits have employed a variety of approaches invok 25 ing Eighth Amendment and due process protections. Re cently, however, the Supreme Court held that the treatment 24 In Armato v. Grounds, 766 F.3d 713 (7th Cir. 2014), we rejected a consti tutional challenge brought under circumstances that were somewhat sim ilar to the present case. At issue in Armato was Illinois’ “turnaround prac tice” of walking parole eligible inmates who lacked approved housing to the prison gate, turning them around, and returning them to custody. See Crayton v. Duncan, No. 15 CV 399 NJR, 2015 WL 2207191, at *4 n.2 (S.D. Ill. May 8, 2015) (describing turnaround practice); Brown v. Randle, No. 11 C 50193, 2014 WL 2533213, at *1 (N.D. Ill. June 5, 2014); Murdock v. Walker, No. 08 C 1142, 2014 WL 916992, at *3–4 (N.D. Ill. Mar. 10, 2014). Armato had been convicted of a sex offense in Illinois and sentenced to a prison term but not to a term of MSR. 766 F.3d at 716. When he became eligible for release, the administrator in charge of his file was under the impres sion that state law required that his sentence include an MSR. Id. at 717. She further believed “that when a previously convicted sex offender is re leased from custody, he is subject to strict MSR conditions such as elec tronic monitoring and a suitable host location approved by the IDOC.” Id. Because no such housing could be located, the administrator decided that Armato could not be released. Id. She then contacted several of her supe riors, who told her that “the appropriate line of action would be to ‘violate [Armato] at the door,’” a reference to the turnaround practice. Id. at 718 & n.2 (alteration in original). In the meantime, another prison official con tacted the Illinois Office of the Attorney General (“AG’s Office”) to request an amended sentencing order that included an MSR term. Id. at 718. Ulti mately, the AG’s Office decided not to seek an amended order, and Ar mato was released. Id. at 719. Armato then brought an action in federal court under § 1983, claiming that his continued detention violated his Eighth Amendment and due pro cess rights. Id. We held first that Armato’s Eighth Amendment claim failed on the merits because he had not shown that his detention was the result of deliberate indifference. Id. at 721. We also rejected Armato’s Fourteenth Amendment claim, which we treated as a procedural due process claim. 20 No. 14 1746 of a pretrial prisoner is governed by the substantive standards of the Due Process Clause. See Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015). This conclusion seems compatible with the Court’s earlier holding in McNeil v. Director, Patuxent Institution, 407 U.S. 245 (1972), that the continued detention of a person beyond the expiration of their prison sentence “vio lates his rights under the Fourteenth Amendment.” Id. at 246. But cf. Baker v. McCollan, 443 U.S. 137, 145 (1979) (holding that “a detention of three days over a New Year’s weekend does not and could not amount to” a “deprivation of liberty with out due process of law”). Id. at 721–22. We held that such a claim failed because “the processes un dertaken by the defendants were sufficient to address Armato’s situation and justify his prolonged detention.” Id. at 722. The defendants had con tacted the AG’s Office to pursue an amendment to Armato’s sentence, and, in any event, “Armato had numerous sufficient remedies available to him in the state court including a writ of habeas corpus, a writ of manda mus … , and a claim of false imprisonment.” Id. 25 See Scott v. Baldwin, 720 F.3d 1034, 1036 (8th Cir. 2013) (“Incarceration beyond the termination of one’s sentence may state a claim under the due process clause and the eighth amendment.” (internal quotation marks omitted)); Sample v. Diecks, 885 F.2d 1099, 1107–18 (3d Cir. 1989) (analyzing under both Eighth Amendment and procedural guarantees of Fourteenth Amendment); Haygood v. Younger, 769 F.2d 1350, 1354–59 (9th Cir. 1985) (same). Other courts, however, have expressed a preference to analyze such claims under only the Due Process Clause. See Jones v. City of Jackson, 203 F.3d 875, 880 (5th Cir. 2000) (holding that plaintiff had failed to state an Eighth Amendment claim because he was “complaining about the fact of his incarceration rather than its conditions,” but recognizing a substan tive claim under Due Process Clause); Shorts v. Bartholomew, 255 F.App’x 46, 51 (6th Cir. 2007) (“[W]hen a prisoner’s sentence has expired, he is en titled to release. … This liberty interest is most often attributed to the Due Process Clause of the Fourteenth Amendment.”). No. 14 1746 21 Another consideration further convinces us that we should not attempt to reconcile these governing principles here. Mr. Werner has presented the due process argument to us solely as a matter of procedural due process, but we think that Kingsley, McNeil, and Baker suggest that substantive due process principles are implicated here. Rather than resolve definitively that question in a case in which counsel has not squarely raised the issue, we believe the proper course is to focus on the second prong of the qualified immunity inquiry and to determine whether the contours of the right involved were clearly established at the time of the defendants’ ac 26 tions. A clearly established right is one that “is sufficiently clear that any reasonable official would understand that his or her actions violate that right, meaning that existing precedent 26 In addition to his claims against those defendants personally involved in his detention, Mr. Werner contends that his individual capacity claims against the administrators responsible for AD 02 10, Secretary Hamblin (now Secretary Wall) and Division of Community Corrections Regional Chief Snyder Spaar, were dismissed improperly during screening. In Chil dress v. Walker, 787 F.3d 433 (7th Cir. 2015), we held that “[i]n the case of those responsible for setting policy, liability will result from the institution of a policy that, when enforced, causes a constitutional deprivation.” Id. at 440 (internal quotation marks omitted). A plaintiff therefore states a claim for relief against prison administrators responsible for a policy where the plaintiff “alleges that prison administrators knew of th[e] practice and knew that th[e] practice put at least some recently released prisoners in jeopardy of losing their freedom, but nevertheless did not alter, change, or otherwise intervene to prevent the harm.” Id. We thus consider Mr. Wer ner’s claims as they apply to both the defendants personally involved in his detention under AD 02 10 and also those responsible for creating the directive. 22 No. 14 1746 must have placed the statutory or constitutional question be yond debate.” Zimmerman, 807 F.3d at 182 (citing Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)). “Put simply, qualified im munity protects ‘all but the plainly incompetent or those who knowingly violate the law.’” Mullenix, 136 S. Ct. at 308 (quot ing Malley v. Briggs, 475 U.S. 335, 341 (1986)). The Supreme Court also has held that, in this context, legal rights cannot be defined at a high level of generality. See, e.g., id. (“The dispos itive question is whether the violative nature of particular con duct is clearly established. This inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition.” (first emphasis in original) (citation omitted) (in ternal quotation marks omitted)). For the reasons set forth be low, we conclude that a reasonable official would not have known that detaining Mr. Werner pursuant to AD 02 10 was legally impermissible. In conducting the clearly established inquiry, our first task is to consider controlling Supreme Court and Seventh Circuit precedent. Abbott v. Sangamon Cty., 705 F.3d 706, 731 (7th Cir. 2013). Our earlier discussion makes evident that the prece dent of the Supreme Court and of our court certainly did not provide adequate guidance to permit the defendants to un derstand their responsibilities in the face of the tangle of over 27 lapping laws and regulations that Wisconsin had created. We therefore must “cast a wider net” and look to whether “all relevant case law” demonstrates “such a clear trend … that we can say with fair assurance that the recognition of the right by a controlling precedent was merely a question of time.” Id. 27 See supra notes 20–24 and accompanying text. No. 14 1746 23 28 (internal quotation marks omitted). In this respect, Mr. Wer ner identifies a line of Wisconsin state court decisions. In State ex rel. Olson v. Litscher, 608 N.W.2d 425 (Wis. Ct. App. 2000), Olson was serving a prison sentence for sexual assault and reached his mandatory release date on March 2, 1999; the DOC, however, had not located a residence for him. Id. at 426– 27. Consequently, Olson was transferred from a state peniten tiary to a minimum security facility, at which point he filed a petition for habeas relief on the ground “that his continued incarceration past his statutorily mandated release date was an unlawful restraint of his personal liberty.” Id. at 427. Ac knowledging that the issue was a constitutional one dealing 28 We are not alone in looking to trends in the decisional law of other ju risdictions once we are satisfied that controlling precedent in our own cir cuit does not clearly establish a particular legal right. See, e.g., Cox v. Glanz, 800 F.3d 1231, 1247 (10th Cir. 2015) (looking to “clearly established weight of authority from other courts” (internal quotation marks omitted)); Mor gan v. Swanson, 659 F.3d 359, 372 (5th Cir. 2011) (considering whether there is “a robust consensus of persuasive authority” (internal quotation marks omitted)); Bame v. Dillard, 637 F.3d 380, 384 (D.C. Cir. 2011) (looking to “cases from other courts exhibiting a consensus view” (internal quotation marks omitted)); Wilson v. City of Bos., 421 F.3d 45, 56 (1st Cir. 2005) (look ing to “all available case law, including both federal cases outside our own circuit, and state court decisions of the state wherein the officers operated” (citations omitted) (internal quotation marks omitted)); Turner v. Ark. Ins. Dep’t, 297 F.3d 751, 755 (8th Cir. 2002) (taking “a broad view of the concept of clearly established law” that “look[s] to all available decisional law, in cluding decisions from other courts, federal and state, when there is no binding precedent in this circuit” (internal quotation marks omitted)); Trulock v. Freeh, 275 F.3d 391, 407 (4th Cir. 2001) (asking whether there is a “consensus of cases of persuasive authority from other jurisdictions”) (in ternal quotation marks omitted)). 24 No. 14 1746 with personal liberty, the Wisconsin Court of Appeals con cluded that the continued detention of Olson beyond his man datory release date was not authorized: Wisconsin law pro vided that “each inmate is entitled to mandatory release on parole … at two thirds of the sentence.” Id. (quoting Wis. Stat. § 302.11(1)). Although the court “realize[d] that it is difficult for the DOC to find a neighborhood that will accept a paroled sex offender in its midst,” the above statutory language con vinced the court that “[w]hether or not a place has been found for an inmate, he or she must be released on his or her man datory release date.” Id. at 427–28. The court noted in closing that there may be “a way for the state to more closely monitor sex offenders for a time between mandatory release and placement”; however, this was not the court’s responsibility 29 to determine. Id. at 428. 29 State ex rel. Olson v. Litscher, 608 N.W.2d 425 (Wis. Ct. App. 2000), came on the heels of a very similar decision by the Wisconsin Court of Appeals in State ex rel. Woods v. Morgan, 591 N.W.2d 922 (Wis. Ct. App. 1999). Woods had been convicted of, among other crimes, sexual assault, and he was incarcerated at a state penitentiary. Id. at 923 & n.2. When Woods reached his mandatory release date, he was transferred from the peniten tiary to a minimum security facility. Id. at 923. Several days later, “Woods made sexual overtures to [another] inmate.” Id. As a result, his parole was revoked, and he was transferred back to the penitentiary. Id. Woods then filed a petition for a writ of habeas corpus in state court, contending that his right to due process of law had been violated. Id. He argued that alt hough he had been transferred from the penitentiary to the minimum se curity facility at the end of his sentence, he remained a prisoner and there fore “was subject to prison inmate rules … , not probation and parole reg ulations.” Id. at 924. Thus, he argued, his conduct should “have carried an administrative sanction or a loss of prison privileges, not revocation of pa role.” Id. The Wisconsin Court of Appeals granted Woods’s petition, con No. 14 1746 25 The Wisconsin Court of Appeals again considered this is sue in Allen v. Guerrero, 688 N.W.2d 673 (Wis. Ct. App. 2004), this time in the context of the Eighth Amendment. Allen, who had been convicted of sexual assault, reached his mandatory release date on January 4, 2000, but was unable to secure ap propriate housing. Id. at 675–76. Instead of releasing Allen to parole as required under Wis. Stat. § 302.11(1), he was trans ferred to a minimum security facility and placed under the supervision of parole agents. Id. at 676. Several months later, the parole agents placed Allen on a “parole hold pending a parole revocation hearing,” arrested him, and sent him back 30 to the state penitentiary. Id. An ALJ, however, concluded that Allen could not have violated his parole because he had never become a parolee. Id. Allen remained in custody, and the DOC initiated a second parole revocation proceeding; again, an ALJ held that revocation was inappropriate. Id. Al len petitioned for habeas relief, which was granted, and he was released to parole. Id. Allen then brought a § 1983 action claiming that his con tinued incarceration beyond his mandatory release date vio lated the Eighth and Fourteenth Amendments, and the de fendant prison officials raised qualified immunity as an af firmative defense. Id. Relying in large part on our decision in Campbell, the Wisconsin Court of Appeals held that Allen had cluding that because both the penitentiary and the minimum security fa cility were state prisons, his status as a prisoner did not change when he was initially transferred. Id. at 925. Because Woods never had attained pa rolee status, his parole could not be revoked. Id. 30 The court’s opinion does not make clear why the agents initiated the parole hold and revocation. 26 No. 14 1746 made out an Eighth Amendment claim because the defend ant’s commencement of a second parole revocation hearing instead of releasing him on parole demonstrated “that they were deliberately indifferent to his plight.” Id. at 678 (altera tions omitted) (internal quotation marks omitted). Proceeding to the second prong of the qualified immunity analysis, the court explained that, after Olson, Wisconsin state law was clear that “Allen was entitled to release on parole upon reach ing his [mandatory release] date.” Id. at 679. Thus, “no rea sonable public official could have believed that [Allen’s] con tinued detention was constitutionally permissible.” Id. at 680. These cases, however, do not comprise a full picture of Wisconsin’s legal landscape. In 2005, just one year after the Wisconsin Court of Appeals decided Allen, and long before the application of the directive here, the Wisconsin Supreme Court decided State ex. rel. Riesch v. Schwarz, 692 N.W.2d 219 (Wis. 2005). Riesch was serving an eight year sentence for sex ual assault; his mandatory release date was July 21, 1998. Id. at 220. Riesch’s parole supervision rules, which he refused to sign, “required [him] to avoid unlawful activity and conduct that was not in the best interest of the public or his rehabilita tion.” Id. at 221. Riesch’s parole agent also decided that, be cause of the nature of his offense, Riesch “needed to reside at an approved halfway house or residence”; again, Riesch re fused to cooperate. Id. When Riesch reached his mandatory release date, the DOC initiated a parole hold and transferred him from state prison to a county jail. Id. A week later, Riesch’s parole agent initiated a revocation proceeding, and an ALJ revoked his parole. Id. Riesch then filed a petition for writ of certiorari, in which he claimed, relying on Olson, that the revocation of his parole No. 14 1746 27 was unlawful because he was not released from physical cus tody upon his mandatory release date and therefore was not a parolee. Id. at 222–23. The Wisconsin Supreme Court disa greed. It held that Riesch’s case was distinguishable from Ol son because Riesch, in refusing to cooperate, had “violated the conditions of his parole immediately and simultaneously with his mandatory release date.” Id. at 223. Importantly, the court also wrote: The holding Riesch seeks today is a bright line rule that elevates form over substance. He con tends that inmates must always be released from physical custody before any revocation is commenced, regardless of whether they have signed parole rules, complied with parole rules, or cooperated with their agent. In essence, he is asking for a ritual where the DOC releases un cooperative inmates just outside the prison walls on their mandatory release dates before subsequently placing parole holds upon them. … In the end, we are mindful that the DOC is not free to hold inmates indefinitely for such prob lems as failure to find suitable housing on its part. Olson, 233 Wis.2d at 690, 608 N.W.2d 425. However, we also recognize that the DOC has substantial discretionary authority to develop the rules and conditions for release. Macemon I, 208 Wis.2d at 597, 561 N.W.2d 779. Where in mates violate these terms immediately and simulta neously with their scheduled mandatory release 28 No. 14 1746 dates, the DOC should be able to maintain continu ous custody, even though that person’s status changes from prisoner serving a sentence to a parolee detained on a parole hold. Id. at 225–26 (emphasis added) (footnote omitted). The Wisconsin Supreme Court’s reasoning in Riesch con firms that Olson and Allen had not put the precise situation addressed by AD 02 10 “beyond debate” in Wisconsin. Ash croft v. al Kidd, 563 U.S. 731, 741 (2011). Riesch marked the first time that a Wisconsin court had focused on the inherent con flict between a sex offender’s right to timely release to super vision and the rules and restrictions governing that release. The Wisconsin Supreme Court’s treatment of this dilemma demonstrates that “the right’s contours were [not] sufficiently definite that” the defendants in this case would have been on notice that AD 02 10’s procedure was unlawful. City and Cty. of S.F. v. Sheehan, 135 S. Ct. 1765, 1774 (2015) (internal quota tion marks omitted). Riesch made clear that the DOC’s inability to locate appro priate housing does not afford it a blank check to detain in definitely an individual set for release from imprisonment. However, the Wisconsin Supreme Court was cognizant of the practical difficulties that can arise when release itself conflicts with the “substantial discretionary authority” that DOC has “to develop the rules and conditions for releas[ing]” a person to supervision. 692 N.W.2d at 225. Rather than prohibit abso lutely the DOC from detaining individuals caught in this pre dicament, Riesch endorsed a narrow exception: “Where in mates violate these terms immediately and simultaneously with their scheduled mandatory release dates, the DOC should be able to maintain continuous custody.” Id. No. 14 1746 29 Riesch therefore can be read plausibly as acknowledging that, under Wisconsin law, the DOC may “maintain continu ous custody” in the unique circumstance where release from imprisonment to a lesser level of restraint would violate the terms of release due to an inability to make practical arrange ments for the implementation of that lesser restraint. Id. Here, although Mr. Werner’s probation violation was not, in strict terms, “immediate[] and simultaneous[],” it was, as a practi cal matter, an imminent certainty. Id. And although his infrac tion was not, like Riesch’s, the product of his recalcitrance, re leasing Mr. Werner to probation equally would have “ele vate[d] form over substance” to require “a ritual where the DOC releases [noncompliant] inmates just outside the prison walls on their mandatory release dates before subsequently” detaining them. Id. To be sure, the length of deferral of release from imprisonment in this case may well have been a fairly 31 aggressive reading of Riesch. However, given the lack of clar ity with respect to Riesch’s outer limits, “we cannot say that only someone plainly incompetent or who knowingly vio late[s] the law would have … acted as [the defendants] did.” 31 We note that Mr. Werner did have at least one alternative remedy avail able to him throughout his detention under AD 02 10. Under Wisconsin Administrative Code DOC § 328.11 (now DOC § 328.12), Mr. Werner was allowed to seek review of any “decision which affects [him] personally.” Id. DOC § 328.11(3). Although this review process would not have permit ted Mr. Werner to challenge the lawfulness of his detention directly, id. DOC § 328.11(4)(b), it would have allowed him to challenge any of the housing disapprovals underlying his detention, see Metcalf v. Donalds, No. 10 C 0615, 2012 WL 2050823, at *6 & n.1 (E.D. Wis. June 7, 2012) (noting that the plaintiff “could have used the complaint process established by § DOC 328.11 to challenge the decisions concerning his housing options”). 30 No. 14 1746 Mullenix, 136 S. Ct. at 310 (first alteration in original) (internal quotation marks omitted). Because clearly established law at the time would not have notified the defendants in this case that the procedures set forth in AD 02 10 were unlawful, we conclude that they are entitled to qualified immunity on Mr. Werner’s claims. Conclusion For the foregoing reasons, we affirm the judgment of the district court. AFFIRMED No. 14 1746 31 HAMILTON, Circuit Judge, dissenting in part. I respectfully dissent from my colleagues’ decision to grant qualified im munity to the policy making defendants, Hamblin, Snyder Spaar, and Symdon. They adopted and enforced Administra tive Directive 02 10. That policy was unconstitutional as ap plied to someone like Werner, who had reached his manda tory release date and who, through no fault of his own, was unable to find housing that satisfied both local laws and state parole officials. Pursuant to that policy, Werner spent 54 weeks in a county jail when that custody was clearly not au thorized by state law. Werner was deprived of his liberty with out due process of law. This case presents an extreme version of a pervasive prob lem in the criminal justice system. Recidivism is a serious problem with many sex offenders. State and local govern ments have enacted numerous restrictions on the activities, employment, and housing of released sex offenders. Those re strictions can make it difficult, and in some cases literally im possible, for released offenders to live and work in compli ance with all the laws that apply to them. See generally, e.g., Doe v. Snyder, — F.3d —, 2016 WL 4473231 (6th Cir. Aug. 25, 2016) (describing restrictions under Michigan law). In this case, the problem was housing. Brown County, Wisconsin, had, we are told, about fourteen separate ordinances restrict ing released sex offenders. For more than a year neither Werner nor anyone helping him could find lawful and suitable housing for him. Werner was kept in custody pursuant to the policy that the defend ants adopted and enforced. That policy was unconstitutional and contrary to state law even when it was issued in 2002. 32 No. 14 1746 To extend qualified immunity to these defendants, though, the majority errs by relying upon a more recent deci sion by the Wisconsin Supreme Court, State ex rel. Riesch v. Schwarz, 692 N.W.2d 219 (Wis. 2005). As explained below, the state court in Riesch took care to distinguish its decision from cases like Werner’s, in which offenders who reach their re lease dates are cooperative with efforts to supervise them. Plaintiff Werner committed serious crimes and was pun ished severely for them. As a plaintiff, he is singularly unsym pathetic. He earned his designation as a “Special Bulletin No tification” offender by committing multiple sex offenses against children. Both during and after the period in question here, he has repeatedly violated the law. He is now back in prison after another crime. Nevertheless, the legal issues in his case extend beyond Mr. Werner and his crimes. Under the state law governing his conviction and punish ment, when Werner reached his mandatory release date, he was entitled to be released from custody, subject to conditions of parole. As the majority opinion recounts, he was not re leased but was instead locked up in a county jail. He was kept in jail 148 out of 168 hours each week. The remaining 20 hours he was allowed to leave the jail with a chaperone to accom plish the nearly impossible job of finding housing that would comply with all the local laws applicable to convicted sex of fenders and with the state’s conditions of parole. More than a year after his initial “release” to the county jail, he finally found housing that satisfied all the criteria. Werner’s continued custody in the county jail—and “cus tody” is the only way to describe those 148 hours per week— was not authorized by state law or by a court judgment after No. 14 1746 33 due process of law. He was quite simply deprived of his lib erty without due process of law. Executive branch officials are not authorized to lock people up indefinitely without prior court authorization. The ability to seek a writ of habeas cor pus later does not mean the initial deprivation occurs with due process of law. And even a parolee, whose liberty is con ditional and constrained, cannot have his parole revoked and his liberty taken away without due process of law. Morrissey v. Brewer, 408 U.S. 471 (1972); see also Atkins v. Chicago, 631 F.3d 823, 833–34 (7th Cir. 2011) (Hamilton, J., concurring in judgment). I recognize that the combination of local laws in Brown County and the needs of effective parole supervision placed the defendants at all levels of the Wisconsin parole system in a tough spot. If they had faced Werner’s situation without guidance from state law, a defense of qualified immunity would have more merit. But the slate was not clean. Similar problems had arisen before. The state courts had squarely re jected the solution of keeping offenders like Werner in cus tody past their mandatory release dates. First came State ex rel. Woods v. Morgan, 591 N.W.2d 922 (Wis. App. 1999). Woods was a prisoner who reached his mandatory release date. Instead of being released, he was transferred to another correctional center. Four days later, he made sexual overtures toward an inmate at that new facility, and his parole was revoked. Woods petitioned for a writ of habeas corpus. He argued that he could not have his parole properly revoked because he had never actually been paroled. The Wisconsin Court of Appeals agreed, relying on the fact that Woods had been transferred to a different state prison. He was still deemed a prisoner, not a parolee, even though he 34 No. 14 1746 had been held past his mandatory release date. Id. at 925. In other words, continued confinement in a state prison was not authorized for a parolee. There was no indication in the rec ord why Woods had not been released on his mandatory re lease date. The next year came State ex rel. Olson v. Litscher, 608 N.W.2d 425 (Wis. App. 2000), which is the decision most in structive for this case. Like plaintiff Werner, Olson reached his release date, but he was not released because the Department of Corrections was unable to locate a suitable residence for him on parole. He was instead transferred to another state correctional facility. The court held that the State had “no au thority to hold an inmate in custody beyond his or her man datory release date, regardless of whether departmental ef forts have secured a residence for the inmate. Id. at 426. The court explained: “We realize that it is difficult for the DOC to find a neighborhood that will accept a paroled sex offender in its midst. But there is no gray area in the statute—it is crystal clear. Our job is to apply the statute as it is written. Whether or not a place has been found for an inmate, he or she must be released on his or her mandatory release date.” Id. at 427–28 (emphasis added). As with Woods, “there was no indication that Olson had done anything to warrant continuous custody at that time.” Riesch, 692 N.W.2d at 224 (summarizing Olson). The State even conceded that Olson had been entitled to release, and no stat ute or administrative rule authorized the State to detain him past that time. Then, to bring the point even closer to this civil case for damages, in Allen v. Guerrero, 688 N.W.2d 673 (Wis. App. 2004), another inmate was held past his mandatory release No. 14 1746 35 date. The State and Allen had been unable to find suitable housing for him by his mandatory release date. Correctional officials moved Allen to a minimum security prison under the supervision of parole agents. State officials twice tried to re voke this unusual form of “parole,” and twice the courts or dered his release. Allen spent all of 2000 in continuous state custody past his mandatory release date of January 4, 2000. He was not released until January 2001. Allen then sued the state correctional officials in state court under 42 U.S.C. § 1983 alleging violation of his due pro cess and Eighth Amendment rights. The Wisconsin Court of Appeals held not only that Allen had stated a claim for viola tion of his constitutional rights but that the violation was so clearly established that defendants were not entitled to quali fied immunity: “We agree with Allen that Woods and Olson clearly established” that Allen was entitled to release on pa role on his mandatory release date. 688 N.W.2d at 679. The Allen court then rejected a further qualified immunity argument that is echoed in this case. The argument is that be cause some cases found unauthorized continued custody vi olated the Eighth Amendment while others found it violated the Due Process Clause of the Fourteenth Amendment, the controlling law was not “clearly established.” The Wisconsin Court of Appeals correctly found in Allen that the unlawful ness of the continued custody was clearly established in 2000 despite doctrinal arguments about whether it violated one or both amendments. The application of two basic liberties does not weaken the case. It strengthens it. The Allen court con cluded, as we should, “that no reasonable public official could have believed that such continued detention was constitution ally permissible.” Id. at 681. 36 No. 14 1746 The qualified immunity presents an unusual wrinkle here. Qualified immunity doctrine often indulges in the legal fic tion of assuming that official defendants are aware of appli cable court decisions. Here, there was no fiction at all. The pol icy making defendants issued AD 02 10 after both Woods and Olson had been decided. The policy even cited both decisions, yet purported to authorize continued custody in the teeth of those decisions. To avoid reversing the judgment for the policy making de fendants, the majority invokes qualified immunity based on the Wisconsin Supreme Court’s 2005 decision in Riesch, 692 N.W.2d 219, or, more precisely, based on what the majority generously calls “a fairly aggressive reading” of Riesch. A qualified immunity defense is supposed to be based upon ob jectively reasonable interpretations of existing law. E.g., Hafer v. Melo, 502 U.S. 21, 25 (1991); Kentucky v. Graham, 473 U.S. 159, 166 67 (1985); Harrell v. Cook, 169 F.3d 428, 431 (7th Cir. 1999). Using Riesch as a qualified immunity lifeline for the policy making defendants is not objectively reasonable. The majority first overlooks the critical distinction drawn by the Riesch court itself and then attributes to the Wisconsin Supreme Court in Riesch an internal contradiction and confusion that simply are not present. In fact, Riesch expressly agreed with Woods and Olson and took care to distinguish Riesch’s case on grounds that apply directly here. It is no surprise that neither the district court nor the defendants, in their brief to this court or in letters to plaintiff, relied on Riesch to justify qualified im munity. Like Werner, Riesch was a sex offender who was nearing his mandatory release date. Unlike Werner, though, Riesch did not cooperate with the release and supervision process. No. 14 1746 37 He announced that he would not participate in the sex of fender treatment program that was required as a condition of parole. He refused to provide medical information or his sig nature on his fingerprint record. His behavior was such that the assigned parole agent was unwilling to meet with him un less he were shackled, and he refused. Riesch had his parole revoked without ever actually leaving state custody. In his challenge to the revocation, he relied on Woods and Olson to argue that he had never actually been paroled, so that his pa role could not be revoked and he should be released. The Wisconsin Supreme Court affirmed the denial of re lief, but on narrow grounds that distinguished both Woods and Olson on grounds that apply directly here. The Riesch court explained: “Woods and Olson are unlike the present case because the inmates in those cases did nothing to warrant their continued detention at the time of their mandatory release date. In contrast, the inmate in the Macemon cases, like Riesch, vio lated the conditions of his parole immediately and simultane ously with his mandatory release date.” 692 N.W.2d at 223 (emphasis added). The Riesch court went on to explain the dif ference with Olson: In Olson, the inmate petitioned the court of ap peals for writ of habeas corpus after he was de tained past his mandatory release date. Olson had been transferred from one correctional fa cility to another on his release date because the DOC was unable to locate a suitable residence for him. Again [as in Woods], there was no indi cation that Olson had done anything to warrant the continuous custody at that time. Accord ingly, the State conceded that he was entitled to 38 No. 14 1746 release when he reached his mandatory release date and that no statute or administrative rule authorized the DOC to detain him past that point. The court of appeals agreed. Olson, 233 Wis.2d 685, ¶ 1, 608 N.W.2d 425. 692 N.W.2d at 224. The Riesch court continued: “Unlike the in mates in Woods and Olson, Riesch engaged in conduct that warranted custody at the time of his mandatory release date,” by refusing to cooperate with his social worker in arranging for a suitable residence. Id. Riesch was not entitled to relief because he had “stubbornly refused to cooperate with the de partment’s efforts to implement a suitable supervision plan,” and he was “totally rejecting active supervision.” Id., quoting administrative decision. The Riesch court concluded: In the end, we are mindful that the DOC is not free to hold inmates indefinitely for such prob lems as failure to find suitable housing on its part. Olson, 233 Wis.2d at 690. However, we also recognize that the DOC has substantial discre tionary authority to develop the rules and con ditions for release. Macemon. Where inmates vi olate these terms immediately and simultane ously with their scheduled mandatory release dates, the DOC should be able to maintain con tinuous custody, even though that person’s sta tus changes from a prisoner serving a sentence to a parolee detained on a parole hold. Id. at 225. The Riesch court rejected a highly formalistic rule advocated by Riesch, but it did not disagree with Woods or No. 14 1746 39 Olson, nor did it purport to authorize the continued custody of a parolee who was not deliberately violating the terms of his parole. Yet the defendants’ policy, AD 02 10, purported to author ize exactly such continued custody. At least after Woods, Ol son, and Allen, and certainly in light of the distinction drawn in Riesch, reasonable policy making officials could not have believed that they were authorized to keep offenders like Werner in jail after their mandatory release dates. Instead, they doggedly stuck to the policy, even telling Werner that “Case law upholds the procedures” of AD 02 10, without identifying the case law. Dkt. 113 1, at 82 (Feb. 16, 2010 letter from defendant Snyder Spaar to plaintiff Werner). The policy making defendants should have known that AD 02 10 would result in unconstitutional deprivations of lib erty in cases like Werner’s, where the parolee did not deliber ately fail to comply with parole conditions. I would allow the qualified immunity defense for the local parole agents and their supervisors who had been ordered to implement AD 02 10, but we should reverse for trial on the claims against the policy making defendants.
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