Metropolitan News-Enterprise


Friday, June 2, 2006


Page 1


Ninth Circuit Panel Revives Suit Over Conditions Under Which Sexual Predators Are Confined


By a MetNews Staff Writer


State officials do not have qualified immunity from claims of various constitutional violations brought by plaintiffs who have been civilly committed pursuant to California’s Sexually Violent Predators Act, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

“It may not be clear exactly what due process rights are to be afforded SVPs,” Judge Harry Pregerson, writing for the court, said, “but surely it is clear that certain actions — forcing Plaintiffs to live in squalid conditions, turning a blind eye to physical attacks against SVPs, and forcing SVPs to take medication as punishment or in retaliation for filing a lawsuit or for refusing to speak during treatment sessions — transgressed the boundary. Surely it would not require ‘law train[ing]’ or clairvoyance to recognize that these actions, as alleged by Plaintiffs, do not comport with due process.”

The panel upheld, in part, an order by Senior U.S. District Judge Terry Hatter of the Central District of California, who denied a motion to dismiss a putative class action brought on behalf of 600 persons who had been committed or were awaiting commitment to Atascadero State Hospital.

Defendants were the hospital’s executive director, the directors of the California departments of Mental Health and Corrections and a slew of state officials, including Gov. Arnold Schwarzenegger. The plaintiffs are seeking declaratory and injunctive relief, as well as monetary damages.

They alleged that they were forced to live in squalid conditions that were inhumane and posed a serious health risk, were deprived of privacy when showering, sleeping, using the toilets or participating in therapy sessions, and were force-medicated in non-emergency situations.

They also alleged that they were subjected to unreasonable searches, were not allowed to speak to their attorneys in private, and were punished in retaliation for filing grievances.

The defendants argued that they were entitled to qualified immunity because the law governing civil commitment of sexual predators is still evolving and thus they could not have violated clearly established constitutional rights.

The panel agreed in part, reversing Hatter’s ruling that defendants were not entitled to dismissal of plaintiffs’ ex post facto and double jeopardy claims, as well as claims based on the Eighth Amendment.  The panel also found that the defendants have qualified immunity from plaintiffs’ claims that they were forced into participating in treatment in violation of their First Amendment right of free speech, because the law on this point is not clearly established.

On all other claims, the panel agreed with Hatter.

The Sexually Violent Predators Act defines a sexually violent predator as a person “convicted of a sexually violent offense against two or more victims for which he or she received a determinate sentence and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others.”

Six months before such a person’s sentence is completed, he is evaluated by the departments of Corrections and Mental Health. If the two departments agree that the person might be a sexually violent predator, the county counsel or district attorney may file a petition for commitment. If a jury finds that the person is a predator who poses a danger to the health and safety of others, he is civilly committed for an indefinite period to commence after his criminal sentence.

Once a person has been committed, they undergo a five-phase treatment program. Different privileges are accorded those in different phases of the treatment. In Phases Two through Five the committed receive “cognitive” treatment, including the viewing of videos that depict violent and/or other inappropriate sexual conduct while a repugnant odor or other unpleasant sensation is applied to elicit a negative association.

The plaintiffs alleged that none of the over 700 people committed have progressed through all five stages and been released. At oral argument it was alleged that after plaintiffs filed their complaint, three people had been released.

Chief Judge Mary Schroeder joined with Pregerson, while Senior Judge Stephen S. Trott argued that the defendants were entitled to qualified immunity as to all claims.

“In my view, the particulars and the contours of the alleged constitutional rights upon which the plaintiffs rely were not so clearly established at the times under scrutiny and at the level of specificity required such that a reasonable official hired by the state to cope with lawfully confined sexually violent predators subject to remedial treatment would have been aware that the conduct alleged violated constitutional bounds,” Trott declared. “Given the unsettled nature of the law in this area, a reasonable official could certainly have believed otherwise.”

Kathryn M. Davis of Latham & Watkins in Los Angeles represented the plaintiffs. Deputy Attorney General Randall R. Murphy represented the defendants.

The case is Hydrick v. Hunter, 03-56712


Copyright 2006, Metropolitan News Company