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Brown v. Randle

United States Court of Appeals, Seventh Circuit

February 7, 2017

Nathaniel Brown, Plaintiff-Appellant,
v.
Michael Randle, et al., Defendants-Appellees.

          Argued October 26, 2016

         Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 11 C 50193 - Frederick J. Kapala, Judge.

          Before Flaum, Easterbrook, and Williams, Circuit Judges.

          Easterbrook, Circuit Judge.

         In 1994 Nathaniel Brown was convicted of four sex offenses and sentenced to prison in Illinois. His projected release date was July 10, 2009, after which his sentence required him to serve three years of "mandatory supervised release, " a status that officials in Illinois often call parole.

         When July 10 arrived, however, the Illinois Department of Corrections did not release Brown. Instead it issued a "Parole Violation Report" reciting that Brown had committed two anticipatory violations of the terms of supervised release. First, he had refused to accept electronic monitoring that is required of sex offenders; second, he lacked a place where he could lawfully reside outside the prison's walls. (Like many other states, Illinois limits the locations where sex offenders can make their homes.) The problems are related. Illinois tries to find lawful accommodations for sex offenders who promise to wear electronic monitoring devices, but because Brown rejected the device the prison system did not try to help him find a place to live.

         Brown seeks damages for the delay in releasing him, yet he does not contend that either the electronic-monitoring or the residential-location condition of release is invalid. We have held that one is proper, and the Eighth Circuit has sustained the other. See Belleau v. Wall, 811 F.3d 929 (7th Cir. 2016) (state may require a sex offender to wear a GPS ankle bracelet as a condition of release); Weems v. Little Rock Police Department, 453 F.3d 1010 (8th Cir. 2006) (residential-location limits for sex offenders are valid); Doe v. Miller, 405 F.3d 700 (8th Cir. 2005) (same). Cf. Doe v. Lafayette, 377 F.3d 757 (7th Cir. 2004) (en banc) (states may prevent sex offenders from visiting places where children congregate). Nonetheless Brown contends that he was entitled to immediate release without regard to those conditions. Perhaps the state could have picked him up later and revoked his release, he allows, but first it had to discharge him. He contends that his confinement violated both the Fourth Amendment, applied to the states through the Fourteenth Amendment, and the Due Process Clause of that amendment.

         One part of Illinois' government thinks that he should have been let out in July 2009. The Prisoner Review Board held a hearing in October 2009 and determined that Brown had not violated the conditions of his release. Apparently it believes that an anticipatory violation should be distinguished from a completed violation, though it did not explain its reasoning. On the same day the Board made this decision, an employee of the Department of Corrections issued a second Parole Violation Report, giving the same two reasons as before. That step was authorized by 20 Ill. Admin. Code §1610.110(a), which says that even a formal order for release on parole "shall not be effective" until the prisoner has an approved residence. The Board then washed its hands of the matter, having earlier told the Department that it would not re-review situations in which the Department disagreed with its decisions. Brown remained in prison until January 11, 2011, when he was released unconditionally. (Illinois gives day-for-day good-time credit, so 18 months in prison was deemed to discharge a sentence of three years' supervised release.)

         One of Brown's themes is that Illinois did not offer him a hearing before it issued either the first or the second violation report. No one doubts that, if he had been released, the Constitution would have required notice and an opportunity for a hearing before he could be returned to prison. See Morrissey v. Brewer, 408 U.S. 471 (1972). But the Supreme Court has limited Morrissey by holding that a state may rescind parole, without a hearing, if it acts before a person reaches the outside of the prison. See J ago v. Van Cur en, 454 U.S. 14 (1981). That's what happened to Brown.

         No matter how the Due Process calculus may come out, Brown insists, he had a right under the Fourth Amendment to release as soon as his prison sentence ended. Yet as of 2009, when he was kept in prison, no court had held that the Fourth Amendment entitles a sex offender to release even though it appears likely that, as soon as he steps outside the prison's front door, he will be in violation of the terms of release. Indeed, no federal court has so held to this day. Under the circumstances, therefore, the defendants are entitled to qualified immunity from damages. And so we concluded with respect to Wisconsin's system of keeping sex offenders in prison until they have a lawful post-prison residence. See Werner v. Wall, 836 F.3d 751 (7th Cir. 2016).

         In a supplemental brief filed after argument, Brown asks us to put Werner to one side because Illinois and Wisconsin do not use identical systems, and he emphasized the Fourth Amendment while Werner relied principally on the Eighth Amendment. These distinctions are true but beside the point. The core conclusion of Werner is that the federal judiciary has not clearly established that sex offenders who lack a lawful place to live must nonetheless be released from prison. That conclusion does not depend on the particulars of the state systems or the constitutional provision a given plaintiff emphasizes.

         Brown does not identify any decision of a federal court establishing that sex offenders without approved living arrangements must be released. Instead he states the constitutional rule at a high level of generality (the Fourth Amendment forbids unreasonable seizures) and contends that this suffices. No, it doesn't. As the Justices reiterated earlier this month:

"clearly established law" should not be defined "at a high level of generality." Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). As this Court explained decades ago, the clearly established law must be "particularized" to the facts of the case. Anderson v. Creighton, 483 U.S. 635, 640 (1987). Otherwise, "[p]laintiffs would be able to convert the rule of qualified immunity ... into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights." Id., at 639.

White v. Pauly, No. 16-67 (U.S. Jan. 9, 2017), slip op. 7. Federal courts have not particularized the sort of right Brown asserts, so the defendants are entitled to ...


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