October 26, 2016
from the United States District Court for the Northern
District of Illinois, Western Division. No. 11 C 50193 -
Frederick J. Kapala, Judge.
Flaum, Easterbrook, and Williams, Circuit Judges.
Easterbrook, Circuit Judge.
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.
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.
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.
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.)
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.
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
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
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 ...