# Amicus Brief — Youngberg v. Romeo

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1959%3A14

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1982
- **Citation:** 457 U.S. 307

## Text

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TABLE OF AUTHORITIES... ccccccsssetee iii
Co „„ „„ „6„6„6„6„ „„ „„ „„ „6 «„ 111
United States constitution. . VII
resse eee e eee eee eee vii

rere eee eee eee eee eee vii

APPLICATION FOR LEAVE TO FILE
AMICI CURIAE BRIEF IN SUPPORT
OP Rö 1

a. Interest of Amici Curiae...... 1
b. Argument Presented.........+++ 4

THE THIRD CIRCUIT COURT OF

APPEALS APPROPRIATELY ORDERED

A REMAND FOR TRIAL WITH A

JURY INSTRUCTION ON QUALIFIED
e , eee ee nae 7

a. The District Court has

. Eighth Amendment.......-.+.+-

a. The State cannot entyinge
E s
8 ng_a_compe ling
s n e „ „% „% „„ „% „% „% „„ „„ „„ „ „„ '„„ç„ðC» ˖,

e. Nicholas Romeo vas Denied
The Protection of the
Fourteenth Amendment in

‘ Three Separate Ways..........

1. A right to be free from
undue bodily restraint...

2. A right to personal
security and protection..

3. Right to Treatment.......
fk. Qualified Immunity...........
F é a noe .. 000060

PROOP OF sees eee

18

25

26

31
33
34
36

38

TABLE OF AUTHORITIES

Cases

ton v. Texas,
441 v. 8. 418 .

v. Secretary of State,
378 9.8. 500 196)

Arnett v. Kennedy,
416 U.S. 134 $C) 7 ) eee eee

Bates v. Little Rock,
361 U. 8. 516 C2960) . . . . „ 666660

Baxstrom v. Herold,
383 U. S. 107 ei . . . . „ „00500

Bell v. Hood,
327 U.s. 678 C1946). . . . . „0000

Bell v. olf fsh,
441 U. 8. 520 119796999

Bivens v. Six Unknown Federal
Narcotics Agents,
403 U.S. 388 (19717

Dean Milk Co. v. Madison,
340 U.S. 349 (193111

Goldberg v. Kelly,
397 U. 8. 254 ( DFO) cccccceeseose

Pages
20,28,29
19
16
19
13
7,20

12,17,32

9,10,34
21

15

Greenholtz v. Nebraska Penal Inmates,

442 U. 8. 1 11979)

Griswold v. Connecticut,
381 U.S. 479 (1963)

~iii-

28

19,21

Cases

ey v. Cady,
405 U. 8. 304 a. . . . „„ „0

Hutto v. Finney,
437 9. 8. 678 (1976) oc . 6 00

Illinois State Board of Elections
v. Socialist Workers Party,
440 U.S. 173 (1979) /

raham v. Wright,
30 U. 8. 651 646977). 6 6 0 „ 0

In Re Neagle,
135 v. 8. 1 1000) . e 6 „„ 0

In Re Schmidt,
429 A. 2d 631 (1961) ecccccccccecce

In Re Winship,
397 U.s. 358 (1970) ccccccccccoces

Jackson v. Indiana,
406 v. 8. 715 (1972) .. 200%

Joint Anti-Fascist Refugee
Committee v. McCrath,
341 U. 8. 126 (1981)... —.ĩ2 6 „„

Jones v. North Carolina Prisoners
Labor Union,
433 U.S. 119 (19777777

Kent v. Dullas,
357 v. 8. 116 . . . . „„ 60

v. Pontikes,
4 40.8. 31 4197 %) 2 06 „ „ 0

2

Pages

11

32

19,21

16,17,27

15,32,33
13

13,14,15

21

12
19

22

Cases

Lammon v. Feusier,
111 U. 8. 17 118664):

v. Madison,
1 Cranch. 137 (1603333.

Mathews v. Eldridge,
424 U. 8. 319 976). . . „0

er v. Nebraska,
62 U. 8. 390 (1923... . 6 „„ 0

Muriel v. Baltimore City
Municipal Court,
407 U. 8. 335 1932). . w 60 „ 0

Nixon v. Condon,
286 U. 8. 73 1972). . e

Nixon v. Herndon,
273 U. 8. 436 (1927). . 00%

O' connor v. Donaldson,
422 U. 8. 563 41975). e606 „

Parham v. J. R.,
442 v. 8. 584 1979). . 0 „„

Paul v. Davis,
424 U.S. 693 (19760)

Pell v. Procunier,
417 U.s. 817 119714)

Pennhurst v. Halderman,
612 F. 2d 84 (34 Cir. 1979)

V

10

11, 13, 16,
17,22, 23,
24,28, 29,
30,32

14,17
15
12

31

Cases

Price v. Johnston,
334 v. 8. 266 1

Procunier v. Navarette,
434 U. 8. 555 49700. . . . . . . 2 „„

Robinson v. California,
370 U. 8. 660 96. . . . . . „ 00e

Roe v. Wade,
410 U. 8. 113 5 1

Romeo v. Youngberg,
644 7. 24 147 Ga ug

Shapiro v. Thompson,
394 U. 8. 618 (1969) .. . e „00

Shelton v. Tucker,
364 U. 8. 479 ih nes

Skinner v. Oklahoma,
316 U.8. 335 esel

Specht v. Patterson,
386 U. 8. 605 C2967) . . . esse

Speiser v. Randall,
357 U. 8. 513 (195960. .

Swafford v. Templeton,
185 U. 8. 487 CE9O8) . n

9. 8. . Robe l,
389 v. 8. 258 n. ese

Vitek v. Jones,
445 9.8. 480 198) ʒ

-vi-

16
19,20,21
26

19

20,21

19

11

16

10

21

12,13

Cases
West v. Cabell,
153 v. 8. 78 118944)

Wiley v. Sinkler,
17 U.8s. 58 (1900) .ccccccccccese

Williams v. Illinois,
399 U.s. 235 (19700)ʒ )

Wolff v. McDonnell,

418 U. 8. 339 1970) 6 .
United States Constitution
First MWmend nent
Fourteenth Mmend nent.

Statutes

Pa. Stat. Ann. Tit. 50, § 4406...
29 U. 8. Cc. 1 796
42 U. 8. C. 1 1966”...
42 U. 8. C. 6 1997 (aꝶ0ʒ

Treatises

Bastress, The Least Restrictive

Alternative in Constitutional

RAjudication: An Analysis, a

Justification, and Some Criteria,

27 Vand. L. Rev. 971 (19747.
>

-vii-

Pages

10

10

13

12,15,32

18,21

11,25,30,
32

14

22
9,10
22,23

21

Treatises

Katz, The Jurisprudence of
Remedies: Constitutional
Legality and the Law of Torts
in Bell v. Hood, 117 v. pa. L.

Rev. Pee „„ „ „„ „ „„ “««b “„ “„ „„ „ “„ „„ “„ “„

J. Landynski, Search and Seizure
in the Supreme Court, 28 et seq.

(2966) Fo . ...e eee

N. Lasson, History and Development
of the Fourth Amendment to the
United States Constitution 43 et

|i: CPP eee eee eee ee eee ee eee

111

10

10

MO. 80-1429

In THE
SUPREME COURT OF THE UNITED STATES

October term 1980

DUANE YOUNGBERG, Individually and in

His Official Capacity as Superintendent,
Pennhurst State School and Hospital, and
RICHARD MATTHEWS, Individually and in His
Official Capacity as Director of Resident
Life, Pennhurst State School and Hospital,
and MARGUERITE CONLEY, Individually and

in Her Official Capacity as Unit Director,
Unit 9, Pennhurst State School and Hospital,

Petitioners
v.

NICHOLAS ROMEO, an Incompetent, by His Mother
and Next Friend, PAULA ROMEO,

Respondent

APPLICATION FOR LEAVE TO FILE AMICI CURIAE BRIEF
IN SUPPORT OF RESPONDENT

Applicants ask leave of court to file an Amici
Curiae Brief in support of Wicholas Romeo.

a. Interest of Amici Curiae.
Amicus Curiae Mental Health Associa-~

tion in Los Angeles is a non-profit

corporation of 1400 citizens concerned
with the plight of the mentally ill.
Among its members are prople who have
recovered, as well as people who are
presently suffering, from mental ill-
ness. In many circumstances Develop-
mentally Disabled people also are
mentally disabled. Amicus Curiae is,
therefore, involved in both areas. The
Mental Health Association has actively
advocated and litigated in representing
its members and their concerns. Among the
issues Litigatea is a claim of right to
treatment in the least intrusive manner
based upon California state statutes

(the Lanterman-Petris-Short Act which
reguires such treatment), the U.S.
Constitution and the California Constitu-
tion.

Amicus Curiae Mental Health Advocacy
Services is a non-profit corporation incor-
porated under the laws of California and

sponsered by the Los Angeles County Bar
Association, the Beverly Hills Bar
Association as well as the Mental Health
Association in California. The purpose
of Mental Health Advocacy Services is
to represent and litigate the interests
of the mentally and developmentally
disabled citizens of California. The
organization has been in existence since
1977 solely for the purpose of providing
services to the mentally ill and develop-
mentally disabled patients.

Both Amici are intensely concerned
with the issues of this case as it will
impact upon their members and the people

they represent.

b. Argument Presented

Amici will argue that the nature
of the deprivations are so fundamental
that they require a compelling ‘
state interest or substantial necessity
before they can be limited. Because
42 U.S.C. § 1983 exists to allow such
Claims for relief, the district court
appropriately assumed jurisdiction to
hear these claims based upon both
federal and state created due process
rights.

The plaintiff was properly confined
for care and treatment under the appropriate
Pennsylvania statutes. He was not confined
to be beaten, shackled and denied treatment.
This failure to provide for protection of
Mr. Romeo's liberty interests is compensable.
The Third Circuit's decision should be
upheld in these areas.

.

The defendants request for qualified
immunity is not appropriately before this
court. It was neither argued nor decided
by the court below and should not be
decided in the Supreme Court for the
first time.

Respectfully submitted,

Le

Counsel for Amici

BO. 80-1429
‘IN THE
SUPREME COURT OF THE UNITED STATES
October term 1980

DUANE YOUNGBERG, Individually and in

His Official Capacity as Superintendent,
Pennhurst State School and Hospital, and
RICHARD MATTHEWS, Individually and in His
Official Capacity as Director of Resident
Life, Pennhurst State School and Hospital,
and MARGUERITE CONLEY, Individually and

in Her Official Capacity as Unit Director,
Unit 9, Pennhurst State School and Hospital,

Petitioners
v.

NICHOLAS ROMEO, an Incompetent, by his Mother
and Next Friend, PAULA ROMEO,

Respondent

AMICI CURIAE BRIEF IN SUPPORT OF RESPONDENT

THE THIRD CIRCUIT COURT

OF APPEALS APPROPRIATELY
ORDERED A REMAND FOR

TRIAL WITH A JURY INSTRUC-
TION ON QUALIFIED IMMUNITY.

a. The District Court has

jurisdiction to hear

Mr. Romeo's damage claims
for constitutional depriva-

tions.

"The very essence of civil liberty
certainly consists in the right of every
‘individual to claim the protection of
the laws whenever he receives an injury.”
Marbury . Madison, 1 Cranch. 137, 163

(1803). If a federal statute provides

@ general right to sue for an invasion

of a protected right, federal courts may
use any “available remedy to make good the
wrong done." Bell v. Hood, 327 U.S. 678,

684 (1946) 42 U.S.C.§1983 provides
Mr. Romeo with the vehicle for suit and
the federal court with the authority to
hear his claims that he was denied due
process protections ä under
the U.S. Constitution. A state

cannot limit federal authority

1/ 42 u. s. c. Section 1983: Every
person who, under color of any
statute, ordinance, regulation,
custom, or usage, of any state or
territory, subjects or causes to be
subjected any citizen of the United
States or other person within the
jurisdiction thereof to the depriva-
tion of any rights, privileges, or
immunities assured by the constitu-
tion and laws, shall be liable to
the party injured in an action at
law, suit in equity, or other proper
proceeding for redress.

when legitimate constitutional claims
are made. Bivens v. Six Unknown
Federal Narcotics Agents, 403 U.S.

388, 395 (1971); In Re Neagle, 135 U.S. 1
(1889). Because 42 U.S.C. § 1983 is
available “[T)he federal question...
(becomes) . .. an independent claim
both necessary and sufficient to make
out... (a) .. . cause of action.”
Bivens v. Six Unknown Federal Narcotics
Agents, 403 U.S. 388, 395 (1971).

In seeking relief a plaintiff
is entitled to receive damages for
constitutional deprivations because
"damages have been regarded as the
ordinary remedy for an invasion of
personal interests in liberty.”
Bivens vy. Six Unknown Federal

Narcotics Agents, supra, 403 U.S. at

-9-

ws.

As will be shown, the Third Circuit
rightfully found that violations of the
Fourteenth Amendment were wrought upon
Nicholas Romeo. A proper claim for
relief in federal court is provided by
42 U.S.C. § 1983. The district court
and subsequent appellate courts
appropriately assumed jurisdiction.

2/ In Bivens the court set forth a
ist of authority for this proposi-
tion: Nixon v. Condon, 286 U.S. 73
(1932); Nixon v. Herndon, 273 U.S.
536, 540 (1927); Swattord v. Templeton,
185 U.S. 487 (1902); Wiley v. Ae
179 U.S. 58 (1900); N Landynski, Search
and Siezure in the Supreme Court, 28
et - (1966); *. Lasson, History and
Beve of the Fourth Amendment to
the ted States Constitution, 43 et

„ (1937); Katz, The Jurisprudence

Remedies: Constitutional Legality
and the Law of Torts in Bell v. Hood,
117 U. Pa. L. Rev. 1, 8-33 (1568) ; cf.
West v. Cabell, 153 U.S. 78 (1894);

F. Feusier, 111 U.S. 17 (1884).

-10-

4.

to the method, reasons,
‘ terms and conditions of

confinement.

Involuntary confinement of an
individual entails a “massive cur-
tailment of liberty.” Humphrey v.
Cady, 405 u. s. 304, 509 (1972).

As this court said in O'Connor v.
Donaldson, 422 U.S. 563, 580 (1975):

{[T)here can be no doubt that
involuntary commitment to a
mental hospital like involun-
tary confinement of an indivi-
dual for any reason, is a
deprivation of liberty which
the state cannot accomplish
without due process of law.

Specht v. Patterson, 386 U.S.
605, 608 (1967).

In Vitek v- Jones. 445 U.S. 480,
487 (1980) this court cated that

"(t)he loss of liberty produced by
an involuntary commitment is more
than a loss of freedom from confine-
. Because of the substantial
impact that involuntary confinement
for mental health reasons has upon
those so confined, due process rights
necessarily are implicated. Absent

procedural compliance, “protected

3/ The rights of prisoners are even
more severly curtailed than the in-
voluntaril — because “Lawful
incarceration brings about the necessary
withdrawal or limitation of many pri-
vi s and rights, a retraction justified
by considerations underlying our penal
system.” Price v. Johnston, 334 U.S. 266
ne the same proposition see
North Carolina Prisoners! Leper unten. 473
, 418 U.S.
539 (1974) 2211 v e 777 U. s.
e

-12-

liberty interests would be ln
tionally infringed.“ Id. at 487.

Even though state law may

permit confinement of the mentally

411 that, by itself, does not establish

a constitutionally adequate purpose

for confinement. O'Connor v. Donaldson, supra,
422 U.S. at 574. “Due process requires

that the nature and duration of commit-

ment bears some reasonable relation to

the purposes for which the individual is
committed.” Jackson v. Indiana, 406 U.S.

8. See also Baxstrom v. Herold, 383
-8. 107, 113 (1966); In re Winship,
397 U.S. 358, 363 (1970); Williams v.
. Baltimore City Municipal
7 „8 ‘
ing similar due process
interests.

-13-

715, 738 (1972).

A person has a substantial
liberty interest in not being con-
fined unnecessarily for treatment.

Parham v. J.R., 442 U.S. 584 (1979).
‘Nicholas Romeo was committed under

| 27
Pa. Stat. Ann. Tit. 50, § 4406.

37 Pa. Stat. Ann. Tit. 50 § 4406:

(a) Whenever a person is believed
to be mentally disabled, and in need of
care or treatment by reason of such
mental disability, and examination of
such person has been made by a physician
or physicians, or for ary reason the
examination of such person cannot be
made, a petition may be presented to
the court of common pleas of the county
in which a person resides or is, for
his immediate examination or commitment
to an opriate facility for examina-
tion, observation and diagnosis.

(b) If, upon examination, it is

Getermined that such person is in need
of care at a facility, the examining
physicians or director, as the case
ae shall immediately r t to

court which may order commit~-
ment of such person for care and treatment.
(Emphasis added.)

214

The statute clearly requires care
and treatment. Likewise the
Pennsylvania Supreme Court has
required that those committed

as mentally disabled must be provided

care and treatment. In re Schmidt,
Pa. , 429 A. 2d 631 (1981).

This state created right provides
a constitutionally protectable liberty
interest which is enforcible if the
state does not provide such treatment.
Jackson v. Indiana, supra, Paul v. Davis,
424 U.S. 693, 710 (1976); Goldberg v.
Kelly, 397 U.S. 254 (1970); Wolff v.
McDonnell, 418 u. s. 539 (1974).

-15-

*

Due process also attaches because
freedom from confinement is an “elemental
liberty" Arnett v. Kennedy, 416 U.S. 134,
157 (1974). The terms and conditions of
confinement must be for a legitimate
purpose. O'Connor v. Donaldson, supra. A
person who has not committed any crime
may lose certain rights if confined as
a result of mental illness or retardation;
however, confinement solely for care is
no different than the confinement for the
status of being a narcotics addict found
unconstitutional in Robinson v. California,

370 U.S. 660 (1962).

If the confinement does not pro-
vide proper care and treatment then that
confined person has a due process “right
to be free from, and to obtain judicial
relief for, unjustified entrusions on

personal security." Ingraham v.
Wright, 430 U.S. 651, 673 (1977).

A In iser v. Randall, 357 U.S. 513,
5 115887 liberty was described as an
interest transcending value."

16

If requested it is the obligation

of the courts to view the confinement
to see if constitutional terms

and conditions are being met, as was done
in O'Connor v: Donaldson, supra.

The protections of the Fourteenth
Amendment apply to both the commitment pro-
cess and the conditions of confinement once con-
mitted. Judicial relief may be sought
and obtained for failures to abide by the
mandates of due process.

c. Eighth Amendment.

Neither petitioner nor the res-
pondent are contesting the Third
Circuit's interpretation of Ingraham
v. Wright, 430 U.S. 651 (1977) and
Bell v. Wolfish, 441 U.S. 520 (1979)

as precluding application of the
Eighth Amendment.

217

a.. The State cannot enfringe
upon fundamental rights
absent showing a compelling

tate interest.

Involuntary civil commitment of
mentally disabled individuals in
locked state institutions
not only involves the obvious cur-
tailment of freedoms of movement and
travel but also massive infringement
upon the First Amendment rights of
free association and expression. An
involuntarily committed mentally
disable® individual's connections with
the outggde world are greatly restricted,
if 0 severed. me individual is often
subjected to treatment modalities, such
as psychotropic medication, which affect
thought processes and expression. Further,
commitment may infringe upon the rights of
marriage, procreation and voting.

-18-

‘The Supreme Court has found all of
these rights fundamental for purposes
of the due process clause and has
strictly scrutinized state action which
infringes these rights. See e.g.,
Meyer v. Nebraska, 262 U.S. 390, 399%
(1923) (marriage); Skinner v. Oklahoma,
316 U.S. 535, 541 (1942) (procreation) ;
Griswold v. Connecticut, 381 U.S. 479
(1965) (privacy); Roe v. Wade, 410 U.S.
113 (1973) (decision to bear children);
Kent v. Dullas, 357 U.S. 116 (1958);
Apthekcer v. Secretary of State, 378

U.S. 500 (1964); Shapiro v. Thompson,
394 U.S. 618 (1969) (travel); Bates v.

Little Rock, 361 U.S. 516 (1960)
(association); Illinois State Board
of Elections v. Socialist Workers
Party, 440 U.S. 173 (1979) (voting).
This court has also recognized that
constitutional rights arise because

-19-

of the severe social stigma arising
from commitment for mental disability.

Addington v. Texas, 441 U.S. 418, 425,
426 (1979).

When fundamental rights are in-
fringed strict scrutiny demands that
the state action be justified by a
showing of compelling state interest.
(See Roe v. Wade, 410 U.S. 113 (1973)).
Further, even if the state can demon-

strate a compelling state interest
which justifies infringing the
fundamental rights of involuntarily
committed patients, infringements

upon such rights must be carried

out in the least drastic manner.

The classic statement of the principle
was made in Shelton v. Tucker, 364 U.S.
479, 488 (1960); even though the govern-
mental purpose is legitimate and

-20-

substantial, that purpose cannot be
pursued by means which broadly stifle
fundamental personal liberties when
the end can be more narrowly achieved.
This principle has been part of the
U.S. Supreme Court's analysis in
almost every field of constitutional
law, including substantive due process,
’ Griswold x. Connecticut, supra, Roe v.

Wade, supra; procedural due process,
Joint Anti-Fascist Refugee Committee v.

McCrath, 341 U.S. 126, 163 (1951), the

. Commerce clause, Dean Milk Co. v. Madison,

340 U.S. 349 (1951); and the First
Amendment ‘Overbreadth" cases, e.g., U.S.
v. Robel, 389 U.S. (1967); Shelton v.

Tucker, supra. See Bastress, The

Least Restrictive Alternative in
Constitutional Adjudication: An
Analysis, a Justification, and Some
Criteria, 27 Vand. L. Rev. 971 (1974).
The principle was recently restated by

—21—

the U.S. Supreme Court in Illinois
State Board of Elections v. Socialist
Workers Party, 440 U.S. 173, 185
(1979):

Our previous opinions have
emphasized that ‘even when pur-
suing a legitimate interest, a
state may not choose means that
unnecessarily restrict constitu-
tionally protected liberty,

Kusper v. Pontikes, 414 U.S. 31,
58-59 (1973), and we have required
that state adopt the least drastic
means to achieve their ends.

That this applies in the context of
civil commitment was accepted by the U.S.
Supreme Court in O“ connor v. Donaldson,

7
422 U.S. 503, 575 (1975) The Court

reasoned that “the state has a proper
interest in providing care and assistance
to the unfortunate” but rejected the

idea that commitment for care alone was
sufficient grounds because commitment

is “rarely if ever a necessary condition
for raising the living standards of those
capable of surviving safely in freedom,

on their own, or with the help of family or
friends.“ There must be a greater reason
for confinement than a desire to better the
situation of the committed person in order
for confinement to be constitutional. The
confinement must further a substantial
government interest. Treatment is clearly
such an interest.

congress has reaffirmed this principle

of full citizenship in § 504 of the Rehabili-
tation Act of 1973, 87 Stat. 394 as amended
29 U.S.C. § 794. Congress has also provided
the United States Attorney General with the
authority to bring actions on behalf of
institutionalized citizens who are being sub-
jected to conditions which “deprive such

(footnote con'd on next page)
-23-

In O'Connor this court reviewed
the terms and conditions of involuntary
confinement; analyzing them in light of
the due process protections which apply
to the institutionalized mentally dis-
abled. It recognized that the Fourteenth
Amendment applies equally to the conditions
of confinement as to the process by which
someone is confined.

A fundamental interest can only
be limited by a compelling state
interest. Even if the state has a
legitimate goal ("providing care and
treatment") it will be denied the
power to achieve that goal by using
means which unnecessarily encroach
upon fundamental rights.

The actions of the officials at
Pennhurst hospital do not meet these

Constitution or laws of the 9 States.
42 U.S.C. 1997(a), Public Law 96-247.

3

e. Wicholas Romeo was Denied
‘ The Protection of the
‘ Fourteenth Amendment in Three
Separate Ways.

The Court of Appeals appropriately
defined Romeo's claims in traditional due
process terms: 1) a right to be free from
undue bodily restraint; 2) a right to
personal security and protection; and 3)

a right to adequate treatment. The Court
found that:

The first two are undiluted
legal concerns relating to pro-
tected liberty interests, as
such, they are entitled to
heightened judicial scrutiny.

The third entails mixed questions
of law and medical judgment, and
thus requires a more flexible
standard of judicial review and
suitable deference to informed

-25-

medical opinion. Romeo v. X ’
644 F.24 147, 159 (1980).

The court, in reviewing the due process depriva-
tion claims applied the tri-partate balancing
inguiry set forth in Mathews v. Eldridge,

424 U.S. 319, (1976).

In accepting certiorari 2 court
changed the questions 3 however,

these are also reviewable under the
traditional analysis.

1) A right to be free from
undue bodily restraint.

Nicholas Romeo was shackled to his
bed for long hours every day for at least

7/ “First, the private interest that will be

affected by the official action; second, the

risk of an erroneous deprivation of such

interest through the procedures used and

the probable value, if any, of additional

or substitute procedural safeguards; and

finally, the Government's interest, includ-
the function involved and the fiscal
administrative burdens that the addi-

tional or substitute requirement would entail.”

Id. 424 U.S. at 334-34.

8/ Whether an institutionalized mentally
person has a substantive due pro-

cess right,
(footnecte con d on next page)

-26-

one year. The shackling was not
aimed at any treatment -- rather it
was merely an administrative con-
venience. The record appears to be
bereft of any evidence that attempts
were made to use a less harsh, severe
and physically damaging res-

traint.

ven after committment a
person has a due process right to
be free from unreasonable physical
restraint. Parham v. Z. R., 442
U.S. 584, 600-601 (1979); Ingraham
Vv. Wright, supra, 430 U.S. at 673-674.

(footnote cont'd from previous page)

(a) to receive treatment that is
both acceptable in light of pre-
sent medical or other scientific
know e and that is least
instrusive treatment available
under circumstances; (b) to be
free of restraints, whether for
treatment or protection, absent
show of compelling necessity,
and (c) to be protected from harm,
however caused, absent showing of
substantial necessity?

-27-

Even prisoners, who suffer the
curtailment of their liberty

as a valid function of punish-
ment, (see footnote /) have a
right to be free from unnecessary
bodily restraints. Greenholtz v.
Nebraska Penal Inmates, 442 U.S. 1,
18-19 (1979). Certainly defendants
would not contend that committment
can be used punitively. Addington
Vv. Texas, supra, 441 U.S. at 428,
makes it very clear that punishment
is not a permissible reason for con-
finement of the mentally disabled.

Defendants might claim that the
shackling was a form of treatment;
however, it looks suspiciously like
the “milieu therapy” offered the
plaintiff in O'Connor v- Donaldson,
Supra. In that case the treatment
offered was the “milieu” of a mental

~28-

hospital and nothing more. 14.
422 U.S. at 569. Like the “milieu
therapy” found unacceptable in
O'Connor the shackling of Nicholas
Romeo is nothing more than
administrative convenience cloaked
in the guise of the “milieu of
treatment by shack I ing.

If the shackling was a form of
punishment as part of the committment
process it would be unconstitutional.
Addington v. Texas, supra. If it was
treatment there has to be more than a
bald assertion that an obviously
major encroachment on physical liberty

is treatment. O'Connor v. Donaldson,

supra. Finally, if it was mere
administrative convenience this
violates the substantive due pro-
tections created by the Fourteenth
Amendment and the requirements of care

and treatment of Pennsylvania statutes.

The plaintiff's liberty interests
can only be limited upon a showing of
a compelling state interest. The record
is empty of any substantial or compelling
state interest requiring such inhumane

treatment.

The Third Circuit's opinion should

be upheld in this area also.

-30-

2) A right to personal

security and protection.

In a four year period Nicholas
Romeo suffered seventy-seven injuries.
Some of these were self-inflicted; the
rest were the results of attacks by
others. These were the recorded
injuries in a institution so beset by
administrative and operational problems.
One can fairly reliably infer that there
were many more injuries that went n
Mr. Romeo has done nothing
other than to be born into this world
developmentally disabled. His only
crime is that he needs care and
treatment. Yet defendants seem to
feel that whatever you are subjected
to at Pennhurst is exactly that to
which you are entitled, because the

state's only obligation is, seemingly,

9/ See Pennhurst v. Halderman, 612 F.2d

4 3d Cir. (1979) for a description of the
decrepit facilities at Pennhurst State
Hospital.

-31-

to keep you there. This court would

never allow such treatment of prisoners.

Hutto v. Finney, 437 U.S. 678 (1978);

Bell v. Wolfish, supra, 441 U.S. at 520;

Wolff v. McDonnell, supra. The Fourteenth

Amendment will simply not allow such denials
of a liberty interest (personal safety).
Certainly this court cannot allow such
atrocities to be concealed beneath

the cloak of so-called treatment“

O'Connor v. Donaldson, supra.

The plaintiff has both an indepen-
dent constitutional right to personal
safety and treatment and a state-created

right. In re Schmidt, supra. This

liberty interest cannot be limited absent
some substantial necessity. No such necessity

has been shown. Financial concerns can

be considered, but, they must be viewed
in the light of the interest involved. No
financial concerns have been offered in

the record as it presently appears which

can justify 77 personal injuries in a
four year period. The Third Circuit
opinion should be upheld.

3) Right to Treatment.

This issue has been briefed
extensively and very adequately by
plaintiff as well as amici represented by
the Mental Health Law Project.

Present Amici will only note that

the terminology used by defendants
simply is an attempt to create an

issue which is not present. The
Pennsylvania statutes are very clear,

as is the law,In re Schmidt, supra; i.e.,
an institutionalized person has a

right to care and treatment. Those

requirements alone can resolve this
portion of the case. The district
court could certainly review the denial
of that state created due process right
based upon traditional due process

analysis.

+33-

k. Qualified Immunity.

"In order for an issue to be
properly before the Court it must

have been raised below.” Procunier

v. Navarette, 434 U.S. 555, 567

(1978), (Burger, C.J., dissenting).
The defendants did not argue that they
had a qualified right to immunity

in the Court of Appeals. in Bivens

v. Six Unknown Federal Narcotics

Agents, this court determined that
an issue not raised below could not
be considered on appeal. As stated
by Justice Brennen for the court,
"this question was not passed

upon by the Court of Appeals, and
accordingly we do not consider it
here." Id., 403 U.S. at 397, 398.

Unlike in Procunier v. Navarette,

supra, where the defendants claimed

a good faith defense, and where

they could not reasonably have
known that their actions were
unlawful and, further, there was

a record upon which to make this
determination, in this case there
was no such record nor were there
any such claims of immunity by the
defendants even though there was a
full trial on the merits. For the
court to consider the claims at this
late date simply runs counter to the
purpose of the Supreme Court. These
issues should have been raised and
briefed in a lower court based upon
the factual presentations. Determina-
tion by the Supreme Court at this

time is not appropriate.

CONCLUSION

The due process reasoning
applied by the circuit court is
simply a traditional analysis of
fundamental liberty interests.

It's findings may be in language
which implies new constitutional
standards; however, a rational
examination clearly shows that the
state, under traditional due process
constraints, cannot confine someone
for care and treatment and let that
person be beaten, go untreated and
be shackled, for days on end, to his
bed. There was no showing of any
compelling state interest, or any sub-
stantial need to confine the plain-

tiff in such an inhumane manner.

-36-

The Third Circuit's opinion
should be upheld in its entirety.

Respectfully submitted,

DAN STORMER

MARY BURDICK

Western Center on Law
and Poverty, Inc.

3535 W. 6th Street

Los Angeles, Calif. 90020
(213) 487-7211

JAMES PREIS

Mental Health Advocacy
Services

650 S. Spring St., Suite 807
Los Angeles, Calif. 90014
(213) 623-1419

Attorneys for Amici Curiae

-37-

PROOF OF SERVICE

I, DAN STORMER, certify
that on this day, September 23,
1981, true and correct copies
of the foregoing were mailed,
pursuant to Rule 28, Rules of the
Supreme Court of the United States,
by United States mail, to:

Edmond A. Tiryak
Community Legal Services
Law Center Northeast
3156 Kensington Avenue
Philadelphia, Pa. 19124

David H. Allshouse

Deputy Attorney General
Office of Attorney General
1641 Strawberry Square
Harrisburg, Pa. 17120

DATED: September 23, 1981

EA
“DAN STORMER

Attorney of Record
for Amici Curiae

EFSKI

BARSH
* CALIFOR

AL SEAL

— OFFICI

RY STEPHANIE

$A: NOTARY bel
2

-38-

Subscribed and sworn to before me
this 23rd day of September , 1981.

8 easels 2

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1959%3A14. Public record. Not legal advice.