State officials are not entitled to qualified immunity for the involuntary civil commitment of violent sexual predators without due process, the U.S. Court of Appeals for the Second Circuit ruled yesterday.

The Second Circuit found that former Governor George Pataki and other state officials should have known that due process clearly required notice and a hearing before sex offenders can be civilly committed upon the completion of their prison terms.

Judges Joseph McLaughlin (See Profile), Robert Sack (See Profile) and Peter Hall (See Profile) decided that issue in Bailey v. Pataki, 10-2563, upholding the denial of summary judgment to the state defendants by Southern District Judge Jed Rakoff (See Profile).

The genesis of the lawsuit was a public safety initiative launched by Pataki in June 2005. Pataki, frustrated by the failure of the state Legislature to enact a civil confinement statute for sex offenders, unilaterally instituted the Sexual Violent Predator Initiative.

Under the initiative, sex offenders completing their prison terms were committed pursuant to New York Mental Health Hygiene Law 9.27, which allows two state-employed psychiatrists to commit "any person alleged to be mentally ill and in need of involuntary care and treatment" without a prior judicial hearing or determination. Within a month, 80 prisoners were examined and 21 prisoners were eventually committed.

The initiative was undone in 2006 when the New York Court of Appeals ruled in State ex rel. Harkavy v. Consilvio, 7 N.Y. 3d 607 (2006), that criminal inmates can be transferred to a state psychiatric facility for civil commitment only under Correction Law 402, which requires a finding by a judge following notice, hearing and examination by court-appointed psychiatrists.

But six former inmates, led by name plaintiff Kenneth Bailey, sued the governor and other state officials in 2008 under 42 U.S.C. §1983, claiming a violation of due process because they were transferred without notice or hearing to the Manhattan Psychiatric Center in 2005 and 2006.

Rakoff denied summary judgment in rejecting the assertion of qualified immunity in 2010, saying that the state officials "rather blatantly violated plaintiffs’ constitutional rights" (NYLJ, July 8, 2010).

Rakoff cited the U.S. Supreme Court in Vitek v. Jones, 445 U.S. 480 (1980), as saying that involuntary civil commitment was such "a massive curtailment of liberty" it could not be done without notice and hearing.

Rakoff said it was "so obvious that no reasonable defendant officials could have failed to miss it," and said the plaintiffs had advanced enough evidence to show that the decision to replace the procedures of Correction Law §402 with those of "seemingly inapplicable MHL §9.27 was a deliberate decision taken for political reasons."

The state defendants appealed to the Second Circuit, where oral arguments were heard on Oct. 31, 2011.

Yesterday, the circuit disagreed with the state’s argument that Rakoff misread the Supreme Court.

"Vitek," Sack wrote, "is plainly relevant to this case."

Sack said, "Nothing that occurred here was random or unanticipated so as to prevent the State from planning for and then providing predeprivation process," and the state could not reasonably argue "that predeprivation protections were ‘unduly burdensome’ in comparison with the substantial liberty interest at stake."

And Sack said, "there can be no serious doubt that the liberty interests implicated here are of a high order."

"Not only were the plaintiffs’ physical freedoms curtailed, but they were also subject to specialized mental health treatment," he said, including the use of a "penile plethysmograph"—a gauge strapped to the genitals to measure strain when a sexually explicit picture is displayed and therefore determine sexual arousal patterns.

"One can imagine that to be something less than a dignity inspiring experience," Sack said.

The court was also concerned about the real risk that inmates could be erroneously committed.

"Because of the infancy of the Initiative and the lack of training or formal procedures, coupled with significant political pressure, the risk seems to us to have been enhanced," Sack said.

The court also rejected the state’s argument that post-deprivation hearings were sufficient, as the "Supreme Court has long held" that the Constitution requires some kind of hearing before a person is deprived of their liberty.

Ameer Benno of Benno & Associates argued for the plaintiffs.

"It seems clear to us, from day one, that not only were these folks’ constitutional rights violated, but it was apparent that the state was doing this because it was capitulating to political pressure," Benno said.

Assistant Solicitor General Cecelia Chang argued for the state.

The attorney general’s office declined comment.

Pataki is now counsel to Chadbourne & Parke. A spokesman said in a statement that "Governor Pataki respectfully disagrees with the panel’s decision on the merits and on the qualified immunity issue. He took appropriate and legal measures to protect the community from violent sexual predators and hopes the attorney general seeks en banc review."

Since the state Court of Appeals overturned the Pataki program, legislation has been passed in Albany establishing procedures for civil confinement of sex offenders.