NY Governor Faces Liability for SVP Initiative Denying Due Process to Civilly Committed

On February 14, 2013, the Second Circuit Court of Appeals affirmed a New York federal district court’s denial of summary judgment to state officials in a lawsuit alleging they denied the plaintiffs of their right to procedural due process before being civilly committed. It also upheld a finding that defendants were not entitled to qualified immunity because a reasonable official in the defendants’ position would have known the process utilized to commit the plaintiffs did not satisfy basic constitutional requirements.

After a recently paroled sex offender murdered a woman in June, 2005, in a mall parking lot in White Plains, momentum increased to do something about dangerous sex offenders. Gov. George Pataki directed that every sexually violent predator (SVP) in state custody be evaluated for involuntary civil commitment before release from prison. He directed the Office of Mental Health (OMH) and Department of Correctional Services to “push the envelope” of the existing civil commitment law.

Correction Law § 402 is the law used to civilly commit SVPs. OMH proposed the SVP Initiative, which would use section 9.27 of the Mental Hygiene Law (MHL) to civilly commit SVPs. Previously, MHL applied to “individuals who have a mental illness that makes them dangerous to themselves or others,” and prisoners who did not fit that criteria were evaluated prior to their release pursuant only to Correction Law § 402. A major difference between the laws is the MHL permits commitment without a hearing while the Correction Law requires a hearing before commitment.

On appeal, the defendants argued there was no due process violation because it allowed for a predeprivation hearing. The Second Circuit noted that nothing that occurred in this case was “random or unanticipated” to prevent it from planning for and holding a predeprivation hearing. It had a “predictable point,” the expiration of the sentence, to act upon. Absent extingent or emergent circumstances, due process requires a predeprivation hearing; the Court held in also finding the postdeprivation hearing was insufficient.

The Court then turned to the private interest involved. It found that not only were the plaintiffs’ physical freedoms curtailed, but they were also subjected to specialized mental health treatment. They were subjected to a “penile plethysmograph,” which is a “Strain gauge strapped to an individual’s genitals while sexually explicit pictures are displayed, in an effort to determine his sexual arousal patterns.” The Court called that “something less than a dignity-inspiring experience.”

It also found the classification as an SVP constitutes a fundamental change in status and privileges. Even persons convicted of an atrocious crime maintain a liberty interest in conditions relating to the essential nature of confinement, wrote the Court. Despite the fact that three medical professionals had to sign off on the first commitment, the court found the OMH physicians were unfamiliar with the standards for assessing sex offenders and the likelihood of recidivism, and they were using a novel standard and new tools.

The Court said it did not want to overemphasize the importance of the fact that the SVP Initiative was quickly put into place in a “politically charged atmosphere,” but it could not ignore it enhanced the risk of error in commitments. The risk to the State “would have been no greater predeprivation than postdeprivation” had it not scrambled to implement the SVP Initiative.

In affirming the denial of qualified immunity, the Court quoted the district court. It said that in 2005 it was settled that absent any “immediate danger to society,” a predeprivation hearing was required before civilly committing a prisoner and this requirement was “so obvious that no reasonable defendant official could have failed to miss it.” The district court’s order was affirmed.

The suit against Gov. Pataki and a host of other state officials involved in creating, implementing, and operating the SVP Initiative was ordered to move to further proceedings. See: Bailey v. Pataki, 708 F.3d 391 (2d Cir. 2013).

Following remand, the case went to trial in July 2013, and the jury returned a verdict of $1.00 for each plaintiff against one defendant. The plaintiffs filed an appeal to the Second Circuit on September 3, 2013.

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