considering whether there is “a robust consensus of persuasive authority” (internal quotation marks omitted)
How later courts described this case
- considering whether there is “a robust consensus of persuasive authority” (internal quotation marks omitted)
- analyzing under both Eighth Amendment and procedural guarantees of Fourteenth Amendment
- “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
- 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”
Written by the judges who cited it.
The opinion
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
of qualified immunity. “We review a district court’s grant of
17
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.