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SAN JOSE � A divided Ninth Circuit panel ruled against tossing a class action Thursday claiming sexually violent predators’ constitutional rights have been violated at a state-run hospital. The state argued it has qualified immunity against such litigation. But the federal appellate panel decided that in addition to injunctive relief, the plaintiffs could seek monetary damages against state officials in their individual capacities. The plaintiffs � a class of about 600 sexually violent predators civilly committed to Atascadero State Hospital after their criminal terms have expired � claim multiple civil rights violations, including forced medication without due process, restrictions on assembly in retaliation for filing lawsuits and being forced to sign declarations admitting they have an illness in order to have any chance at release. In a 43-page opinion written by Judge Harry Pregerson, the court allowed seven of the plaintiffs’ 10 causes of action to proceed. The judges stated qualified immunity could only be applied to the complaint’s ex post facto, double jeopardy and Eighth Amendment claims. “Plaintiffs have alleged that force is used in retaliation for exercising legitimate rights and that the amount of force used is often a gross overreaction to the situation,” Pregerson wrote in the opinion. “Such use of force, if proved, is not reasonable, and failure to curtail such abuses cannot be said to be within defendants’ professional discretion.” Chief Judge Mary Schroeder voted with Pregerson. Judge Stephen Trott, a former Los Angeles prosecutor, wrote the partial dissent. “We agree that plaintiffs cannot seek damages in this lawsuit against state officials in their official capacities, and that plaintiffs cannot seek damages from the state either. So, what is left where the officials are concerned?” Trott wrote in his dissent. “I conclude, with all due respect to my colleagues, that these officials as individuals are clearly entitled to qualified immunity against both suit and damages � now, not later,” Trott added. Deputy Attorney General Randall Murphy expressed disappointment with the court’s ruling. “There is a lot of history here,” Murphy said of the eight-year-old case from his Los Angeles office Thursday. “Everyone’s shooting in the dark over how [you can] and how you can’t treat [sexually violent predators.]“ Plaintiffs filed the lawsuit in 1998 and are represented pro bono by Latham & Watkins. A U.S. District court judge had earlier denied the state’s motion to dismiss. For the most part, the Ninth Circuit upheld that ruling. Since the plaintiffs are civilly committed, they should enjoy at minimum the same rights as criminal prisoners, the court decided. “Convicted prisoners, pretrial detainees and parolees all possess a liberty interest in avoiding the unwanted administrations of antipsychotropic drugs,” Pregerson wrote. “Thus, at a minimum, an individual civilly committed under California’s SVP Act has a right to procedural due process before being force-medicated in non-emergency situations.” The case is Hynick v. Hunter, 03-56712.

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