[00:00:02] Speaker 01: Case number 20-7T03, Michael D. Hurd, Jr., appellant versus District of Columbia government. [00:00:10] Speaker 01: Mr. Rowe for the appellant, Ms. [00:00:12] Speaker 01: Van Zyl for the appellee. [00:00:17] Speaker 00: Mr. Rowe, please proceed when you're ready. [00:00:19] Speaker 04: Thank you, Your Honor. [00:00:20] Speaker 04: May it please the court. [00:00:22] Speaker 04: My name is Eric Rowe. [00:00:23] Speaker 04: I represent Michael D. Hurd, Jr., the appellant in this case. [00:00:27] Speaker 04: This case boils down to really a single issue. [00:00:30] Speaker 04: whether the District of Columbia's liability under 42 USC section 1983 requires a showing of subjective malfeasance or fault beyond the constitutional violation that was shown to exist. [00:00:44] Speaker 04: Section 1983, hoping for the end for this reason that decision below must be reversed. [00:00:50] Speaker 04: Section 1983 is plain in its terms. [00:00:53] Speaker 04: It applies to every person who subjects or causes to be subjected any citizen of the United States [00:01:01] Speaker 04: to the deprivation of rights, privileges, or immunity secured by the Constitution. [00:01:06] Speaker 04: Those are the two elements of Section 1983, a person in causing a deprivation of rights. [00:01:13] Speaker 04: The District of Columbia is a person, and the District of Columbia is liable to Mr. Hurd if it caused Mr. Hurd to be deprived of his constitutional rights. [00:01:24] Speaker 04: Under that statute, causation is all that is required. [00:01:27] Speaker 04: There is no subjective requirement of malfeasance or fault. [00:01:32] Speaker 04: And this in fact was the ruling of the court in the Menell case, the seminal case that determined that municipalities could be held liable under section 1983. [00:01:41] Speaker 04: The court concluded that the language stating that when the municipality causes a person to be subjected to a deprivation of rights, the court concluded that that quote plainly imposes liability on a government that under color of some official policy causes an employee to violate [00:02:02] Speaker 04: another's constitutional rights. [00:02:05] Speaker 04: In this case, the District of Columbia caused its employee, Mr. Siebert, to refuse to release Mr. Heard on October 2nd, 2011. [00:02:14] Speaker 04: And the District of Columbia caused Mr. Heard to be kept in jail for an additional two years. [00:02:21] Speaker 04: The District of Columbia's policy in that regard is even set out in the district's own brief submitted to this court. [00:02:29] Speaker 04: District of Columbia says, [00:02:31] Speaker 04: When a court orders an inmate released in a particular case, officials must check all records to determine if there is any other charge or detainer requiring the inmate's detention. [00:02:43] Speaker 04: And if so, must hold him at the DC jail. [00:02:47] Speaker 04: Where are you reading from? [00:02:49] Speaker 04: The appellant's brief, the appellee's brief, page 19, Your Honor. [00:02:52] Speaker 04: OK. [00:02:55] Speaker 04: That is exactly what happened here. [00:02:59] Speaker 03: And your concern is that they [00:03:01] Speaker 03: Is that they do that, or did they do that without affording any pre-re-incarceration process? [00:03:09] Speaker 04: That's the constitutional violation, Your Honor. [00:03:12] Speaker 04: The constitutional violation here was that they did not afford, Mr. Herd, a pre-deprivation hearing. [00:03:19] Speaker 03: There's lots of talk about whether this policy was constitutional or not, but I had thought the whole issue in this case was the fact that they have that policy, and it doesn't include pre- [00:03:30] Speaker 03: liberty deprivation process. [00:03:33] Speaker 03: That's part of their policy. [00:03:34] Speaker 03: It's just to keep them. [00:03:36] Speaker 04: That's right, Your Honor, but that's the constitution. [00:03:38] Speaker 03: I don't know why you're separating that. [00:03:40] Speaker 03: That's what I don't understand. [00:03:41] Speaker 03: Their policy is, if we find something in the records, keep them, not keep them and start a process. [00:03:50] Speaker 03: It's keep them in no process. [00:03:53] Speaker 03: That's their policy. [00:03:55] Speaker 03: Unless you think their policy [00:03:58] Speaker 03: their policy includes process or doesn't include process. [00:04:03] Speaker 04: The policy here does not include any process. [00:04:05] Speaker 03: And I don't know why you keep separating that out as a, I mean, I understand that your constitutional argument, but then it's also a critical aspect of their policy. [00:04:16] Speaker 04: Correct. [00:04:17] Speaker 04: And the issue here is, is whether or not the district of Columbia, as opposed to Mr. Sievert caused this to cause Mr. Hertz deprivation to occur. [00:04:27] Speaker 04: And those are separate inquiries. [00:04:30] Speaker 03: And here, what- Deprivation without process to occur. [00:04:34] Speaker 03: The prior opinion of this court was that there's a procedural due process issue here. [00:04:39] Speaker 04: Correct. [00:04:41] Speaker 03: All right. [00:04:41] Speaker 03: So I think it has to be spoken of in terms of deprivation without process. [00:04:46] Speaker 04: Well, and we also have a substantive due process claim, too, as well, Your Honor, in this case, because Mr. Berg was entitled having [00:04:56] Speaker 04: served his sentence in full to to be completely you know to be done with his sentence when they kept him and and re-incarcerated him again after he had already served his sentence in full that that violated his right to substantive due process as well because under the fifth amendment you can't deprive anybody of liberty without no I understand that but it's that [00:05:24] Speaker 03: It seems to me it's still tied to the fact that they have no process associated with this records check and detention, because presumably that process would allow them to discover if they agreed with you on your substantive process argument that, oh, notwithstanding this record here, he in fact does not need to be detained or re-incarcerated. [00:05:44] Speaker 03: There has to be some mechanism for checking to make sure the computer records are valid. [00:05:52] Speaker 04: Right. [00:05:53] Speaker 04: And in this case, they were presumed to be valid. [00:05:57] Speaker 04: And when they found this prior sentence, they assumed that the prior sentence had not been served and just kept him. [00:06:04] Speaker 04: They did not allow him. [00:06:07] Speaker 04: And as he was entitled to be, at this point in time, there was a Superior Court order requiring his release. [00:06:14] Speaker 04: And he had, in fact, served his prior sentence in full. [00:06:17] Speaker 00: So then I don't understand what the procedural due process is adding to your case then. [00:06:23] Speaker 00: If your view is that they have a policy that says anytime somebody has an unexpired sentence, then he's going to be held. [00:06:33] Speaker 00: And what does more process get you? [00:06:36] Speaker 00: Because that's just what they do. [00:06:38] Speaker 00: And what would more process do? [00:06:42] Speaker 04: What benefit would it bring? [00:06:43] Speaker 04: In this particular case, if Mr. Heard had been afforded a hearing, then he would have been able to present his case and say, [00:06:52] Speaker 04: I have served my prior sentence in full. [00:06:55] Speaker 04: And in fact, when he was confronted with the prior sentence there at the jail on October 2nd, 2011, his first response was, this is done. [00:07:06] Speaker 04: And when do I get a lawyer? [00:07:09] Speaker 04: And the response that he was given was, you have two years to go and you don't get a lawyer. [00:07:14] Speaker 04: And that's part of the problem here. [00:07:17] Speaker 04: But the specific question that is before the court at this point [00:07:21] Speaker 04: is whether or not the District of Columbia can be held liable for that. [00:07:25] Speaker 00: And the question is- So would the additional process and what it would have gotten you as an opportunity to make the argument that the district was compelled to treat the sentence as having been served because too much time had elapsed? [00:07:37] Speaker 04: Well, first, Your Honor, they didn't have the authority to keep him to begin with. [00:07:45] Speaker 04: And so in order for a procedural due process pre-deprivation hearing, [00:07:50] Speaker 04: they needed to release him on Sunday, October 2, 2011. [00:07:55] Speaker 04: And then they could have petitioned the Superior Court or they could have petitioned the Board of Prisons or somebody else to say, this gentleman has two more years to serve on his sentence, and it could have been litigated at that point. [00:08:08] Speaker 04: Instead, they just kept him. [00:08:11] Speaker 00: But when you say they didn't have the authority to keep him, is that not the substantive argument? [00:08:16] Speaker 00: that they don't have substantive authority to keep him because he's been out for too long and the sentence should have been treated as having run while he was out? [00:08:22] Speaker 04: I think the facts are, Your Honor, that even absent that, the DC jail didn't have the authority to decide on its own whether or not he should be kept. [00:08:34] Speaker 04: That authority would have been given to the Board of Prisons if he was still subject to theirs, to the United States Attorney General if he was subject to that jurisdiction, [00:08:45] Speaker 04: or to the District of Columbia Superior Court. [00:08:48] Speaker 04: When you look at the procedures that were adopted in the District of Columbia for pre-release, there is a provision in there that talks about the release authority and the release authority does not include the DC jail. [00:09:02] Speaker 04: And so they needed to go to somebody else for authority to keep him under those circumstances. [00:09:10] Speaker 04: And so ultimately the question though is, [00:09:12] Speaker 04: you know, why did they keep him? [00:09:14] Speaker 04: And the answer is that the instructions that the District of Columbia had given to Mr. Siebert told him not to let him go. [00:09:35] Speaker 04: Okay, Your Honor, I see my time into my rebuttal time. [00:09:37] Speaker 04: And if there are other questions, I'll just reserve the rest for rebuttal. [00:09:41] Speaker 00: Just make sure my colleagues don't have further questions for you at this time. [00:09:44] Speaker 02: No. [00:09:45] Speaker 00: Thank you, Mr. Roe. [00:09:46] Speaker 00: We'll hear from the district, Ms. [00:09:47] Speaker 00: Vanzile. [00:09:49] Speaker 02: Good morning, and may it please the court. [00:09:51] Speaker 02: Caroline Vanzile on behalf of the District of Columbia. [00:09:54] Speaker 02: The question raised in this case is whether, under Manel, the district is responsible for a low-level employee's decision to re-incarcerate Mr. Hurd based on an unserved misdemeanor sentence. [00:10:04] Speaker 02: That inquiry is governed by what the Supreme Court in Connick versus Thompson called a long-standing rule. [00:10:09] Speaker 03: You're surely not blaming this records officer for, you made this initial judgment there's a record here that's got to be served, but are you saying that he's single-handedly kept Mr. Heard incarcerated for 27 months? [00:10:31] Speaker 03: That requires a lot more than a single officer looking at some records. [00:10:36] Speaker 03: Well, your honor, I would say that of the District of Columbia. [00:10:41] Speaker 02: Well, your honor, there's no evidence here that any policymaker was involved in. [00:10:45] Speaker 02: What do you mean? [00:10:46] Speaker 03: So it's really like this one level person can say, go, go back to jail and stay there for 27 months and nobody else has to sign off on it. [00:10:58] Speaker 02: Your honor, there's evidence that Mr. Hurd did consult with the chief records officer, but not with the director. [00:11:04] Speaker 03: A records officer can decide that someone should be incarcerated for 27 months? [00:11:08] Speaker 02: Well, your honor, what Mr. Seibert said and what, in fact, the Superior Court said here was that it was not Mr. Seibert or any policy, really, of the Department of Corrections that was responsible for the detention. [00:11:22] Speaker 02: But it was the court's order directing that the misdemeanor sentence be served, which hadn't been vacated. [00:11:29] Speaker 03: Computer records make mistakes all the time. [00:11:32] Speaker 03: And in fact, in this particular case, he filed a habeas petition. [00:11:35] Speaker 03: And the attorney general of the District of Columbia, and he raised his due process argument. [00:11:41] Speaker 03: And the attorney general of the District of Columbia filed a brief that said, no, he stays in jail. [00:11:47] Speaker 03: Is the attorney general a policymaker? [00:11:51] Speaker 02: purposes of who is detained by the Department of Corrections. [00:11:54] Speaker 03: Making a decision that the District of Columbia believes that this person should stay in detention without due process? [00:12:01] Speaker 03: Is he a policymaker on that? [00:12:03] Speaker 02: I think the question here is who makes policies to when and whether folks are detained in the Department of Corrections. [00:12:10] Speaker 02: And I think as to that question. [00:12:12] Speaker 03: He filed his habeas petition and the attorney general said he stays in without having gotten any process. [00:12:19] Speaker 02: Well, Your Honor, respectfully, I would push back on that. [00:12:23] Speaker 02: I mean, by the time we're in the habeas process, he is getting processed. [00:12:27] Speaker 02: He is having the opportunity to be heard, not even just through some informal administrative mechanism, but [00:12:33] Speaker 02: but by a court, by the court that sentenced him. [00:12:36] Speaker 03: Your prior decisions say that after the fact, self-initiated process by the incarcerated person is sufficient. [00:12:43] Speaker 03: I mean, no one would say for a criminal conviction, if they just put you in jail and let you file a habeas petition, that that was sufficient process for having to put you in jail without having had pre-deprivation process. [00:12:55] Speaker 03: So I don't see why that's relevant here. [00:12:57] Speaker 03: Surely that's not the district's position. [00:13:00] Speaker 02: Well, Your Honor. [00:13:01] Speaker 02: At this point, we're talking about the substantive constitutional question and- Well, I'm also talking about the procedural due process question. [00:13:09] Speaker 02: Well, I think what we're talking about here on this appeal is Menell liability. [00:13:16] Speaker 02: That's what the district court based its determination on. [00:13:19] Speaker 03: And I would know- Your position is that the single record officer, Mr. Siebert, can type some stuff into a computer, look at it. [00:13:28] Speaker 03: and say, go to jail for 27 months without any process, any check to see if the computer's accurate, if it's been updated, if the records are accurate, if this person is the same person. [00:13:40] Speaker 03: You said that he single-handedly incarcerates him. [00:13:43] Speaker 03: And I just find that I think it takes the district to detain someone for 27 months in a prison cell. [00:13:51] Speaker 03: And it's confirmed here by the fact that the attorney general weighed in and said, [00:13:58] Speaker 03: No process for you. [00:14:00] Speaker 03: Stay in jail. [00:14:02] Speaker 02: Well, Your Honor, I have two responses to that. [00:14:04] Speaker 02: One is substantive and one is procedural. [00:14:06] Speaker 02: So on the substantive point in terms of pre-deprivation process, if we're talking about procedural due process before deprivation, that constitutional, alleged constitutional violation was already complete by the time we're in the habeas process, right? [00:14:22] Speaker 02: I mean, he's already been incarcerated without pre-deprivation [00:14:27] Speaker 02: notice and an opportunity to be heard allegedly. [00:14:30] Speaker 02: And in terms of the substantive due process as well, you know, by the time the court, by the time the superior court says on the record after considering briefing, you need to stay in prison. [00:14:43] Speaker 02: At that point, it's not the district that's causing his incarceration. [00:14:47] Speaker 02: There's a superseding cause, which is an additional court order. [00:14:50] Speaker 03: How much time elapsed between the filing of the district's brief and the habeas petition and the Superior Court's ruling? [00:15:00] Speaker 02: I don't believe that it was a long period of time, Your Honor. [00:15:03] Speaker 02: But in any event, the procedural point here is that Mr. Herd has never argued that a policymaker made the decision [00:15:14] Speaker 02: to keep him in prison. [00:15:15] Speaker 02: There's no evidence in the record of that. [00:15:17] Speaker 02: He has never argued. [00:15:18] Speaker 03: He said there's this record thing here, and he just got thrown in jail because of the records without anyone checking to find out what was really going on. [00:15:27] Speaker 03: And it is the district's policy to have this record check made. [00:15:31] Speaker 03: And the district's policy was to set up a record check that sent you directly to jail. [00:15:38] Speaker 03: Go immediately jailed not pass go and without any process. [00:15:42] Speaker 03: I mean, that isn't that the district's policy is if this person finds a record. [00:15:46] Speaker 03: That's my understanding from your brief. [00:15:48] Speaker 03: He had no choice. [00:15:48] Speaker 03: You said, because it's a district policy. [00:15:50] Speaker 03: If they find this in a record, it goes to jail. [00:15:53] Speaker 03: No process. [00:15:55] Speaker 03: No double checks. [00:15:57] Speaker 02: No, your honor, that is not the district's policy and I think it's helpful to [00:16:02] Speaker 02: to break this down into different theories of Minnell liability to trace where the policy would be coming from. [00:16:09] Speaker 02: Under Baker, this court set forth a few different ways that you can prove the existence of an unconstitutional policy. [00:16:15] Speaker 02: And the first is the explicit setting of a policy by the government that violates the Constitution. [00:16:20] Speaker 02: As we've been discussing this, it seems that the court thinks that there is some sort of explicit written policy that required Mr. Seibert to do what he did. [00:16:30] Speaker 02: But that is simply not the case. [00:16:32] Speaker 02: And in fact, the plaintiffs here acknowledged as much at JA 488 in their response to our statement of undisputed material facts, they said- Did Cybert have discretion not to do this? [00:16:44] Speaker 02: Based on the policies? [00:16:46] Speaker 02: Yeah. [00:16:48] Speaker 02: I think so. [00:16:49] Speaker 00: I mean, he may not have had- But then what about the part of your brief that the counsel read from? [00:16:52] Speaker 00: Because to me, it seems to me that your argument is, [00:16:58] Speaker 00: Cybert might have been off on a frolicking detour, but then that's not something that can be attributed to the city. [00:17:05] Speaker 00: And so then the question becomes, is that right? [00:17:08] Speaker 00: Was he off on a frolicking detour? [00:17:09] Speaker 00: Because if there is a policy that says no questions asked, whenever there's a record that indicates that someone has an unexpired portion of a sentence, we just continue to detain him. [00:17:22] Speaker 00: At that point, [00:17:23] Speaker 00: the person who's implementing that policy is just implementing a policy that exists. [00:17:28] Speaker 00: And so the question in my mind is, does that policy exist? [00:17:32] Speaker 00: And then as Mr. Rowe pointed out in your brief, in the paragraph that talks about explicit policies, it just says that when a court orders an inmate released, officials must check all records, and if so, must hold him at the DC jail. [00:17:47] Speaker 00: Is that not the policy? [00:17:48] Speaker 02: So if you read the sentence, it says must check all records to determine if there is any other charge or detainer requiring the inmates detention. [00:17:59] Speaker 02: A charge or a detainer is not an unserved misdemeanor sentence. [00:18:05] Speaker 02: The charges in this case had been disposed of by the court. [00:18:09] Speaker 02: This individual had been sentenced and everyone agrees that there was no detainer. [00:18:13] Speaker 02: And I think what we're paraphrasing in that portion of our brief is D.C. [00:18:17] Speaker 02: Code section 24-211.02a, which says that DOC shall process and release inmates unless the inmate is to continue confinement, pursuant to another charge or warrant. [00:18:30] Speaker 02: There was no charge or warrant here. [00:18:31] Speaker 02: This is categorically different. [00:18:34] Speaker 00: So then what did – did Cybert – did he do something wrong under D.C. [00:18:39] Speaker 00: policy? [00:18:41] Speaker 00: Did he infringe DC policy? [00:18:43] Speaker 00: Is your argument that, well, there is no DC policy on this. [00:18:47] Speaker 00: We just leave it up to individual people at cyber's position to just decide what to do. [00:18:51] Speaker 00: And then their decision on this issue, which seems pretty significant, just takes on its own operative force. [00:18:59] Speaker 00: And that just essentially becomes the result. [00:19:03] Speaker 02: That is our position. [00:19:04] Speaker 02: And obviously, there's a second question as to whether these kinds of situations [00:19:10] Speaker 02: are so obvious that the district needed to have a policy, but there certainly is no written official policy mandating that he do what he did. [00:19:19] Speaker 02: And he said this in his deposition at J-245. [00:19:22] Speaker 02: He says, I don't think there was ever anything official when situations like this arose. [00:19:28] Speaker 02: And that is true. [00:19:30] Speaker 02: In all of the briefing that has transpired in this case, I'm not aware of any citation to any policy [00:19:36] Speaker 02: that would govern re-incarcerations based on unserved sentences. [00:19:40] Speaker 03: And in fact, in the summary judgment argument in the district court, I'm an A618, he said that he had no, Mr. Seibert had no other option. [00:19:50] Speaker 03: And that was based on the unexpired judgment and commitment from Judge Holman. [00:19:55] Speaker 02: Exactly, Your Honor. [00:19:57] Speaker 02: I mean, I think that context was- He had no other option. [00:20:00] Speaker 02: Based on the judge- [00:20:02] Speaker 02: based on the judgment and commitment of Judge Holden. [00:20:05] Speaker 03: So it's not just detainers, and it's not just, I thought you were saying with respect to that sentence in your brief, it was just detainers and charges. [00:20:12] Speaker 03: But now from your argument to the district court, it was also this very judgment. [00:20:17] Speaker 03: Mr. Cybert had no choice under district policy but to hold him in the DC jail. [00:20:23] Speaker 02: Not under district policy, Your Honor, under the court's order. [00:20:27] Speaker 02: under the court's order. [00:20:28] Speaker 02: And at the habeas hearing, the Superior Court confirmed that. [00:20:32] Speaker 03: I mean, say what to do if he's being held on something else and someone checks a computer and sees that this thing is still out there and should we have a process to sort out whether it's still accurate, whether it's still live, what's happened? [00:20:45] Speaker 03: The district court's order doesn't speak about this situation at all. [00:20:51] Speaker 02: I mean, to be frank, Your Honor, so at JA 113, this is the Superior Court. [00:20:57] Speaker 02: It says in the court's view, they, the Department of Corrections, have an obligation based on that prior order to hold him until the court makes a determination. [00:21:07] Speaker 03: Sorry, I'm having trouble. [00:21:08] Speaker 03: Sorry, I'm trying to find the page because the page numbers are on top of other numbers and I'm having trouble finding it. [00:21:12] Speaker 03: I understand, Your Honor. [00:21:13] Speaker 03: 113. [00:21:15] Speaker 03: Oh, boy. [00:21:17] Speaker 03: Sorry, was this the habeas twirling? [00:21:19] Speaker 03: Yes. [00:21:20] Speaker 03: No, but that's your case. [00:21:24] Speaker 03: That's a different decision altogether, right? [00:21:27] Speaker 03: You can't use the habeas ruling a year or a year and a half later to say that was the basis for Mr. Siebert holding him back when he first held him. [00:21:35] Speaker 03: And the original order of judgment and commitment by Mr. Holman, which is what is being referenced in the summary judgment argument there, was that he had the sentence to serve. [00:21:46] Speaker 03: But that's a completely, it didn't say, and he darn well will serve it. [00:21:50] Speaker 03: I don't care how long he's been out. [00:21:52] Speaker 03: I don't care if there's been confusion between the government and he's actually spent that time under supervision. [00:21:59] Speaker 03: It's a substantive due process argument. [00:22:01] Speaker 03: I don't care if there's any mistakes. [00:22:03] Speaker 03: If this thing is still in the computer system, you gotta lock him up. [00:22:06] Speaker 03: That's not what the original order said in any way, shape, or form. [00:22:09] Speaker 03: It was this record check and detain policy that did that. [00:22:13] Speaker 02: But Your Honor, what policy? [00:22:16] Speaker 02: I mean, so there is a policy to be sure that records are checked. [00:22:21] Speaker 03: What do you think you said Mr. Stewart had no option for at summary judgment? [00:22:26] Speaker 02: So again, what trial counsel I think was referring to, and again, trial counsel's comments aren't evidence, but I think if you read it in context, he's saying there was a court order. [00:22:36] Speaker 02: He's not saying that there was a policy that required X, Y, or Z. What court order are we talking about? [00:22:42] Speaker 00: Just to refresh my memory. [00:22:43] Speaker 02: The original, the 2006 judgment, which [00:22:48] Speaker 02: sentenced him to serve. [00:22:50] Speaker 03: Well, in page 19 of your brief, when you said if there's a charge or detainer, that's policy. [00:22:56] Speaker 03: Are you telling me that if it's a, if you would not say if there's charged detainer or outstanding court judgment? [00:23:04] Speaker 02: No, there's simply no. [00:23:07] Speaker 02: No, there's not. [00:23:08] Speaker 02: And Mr. Hurd has acknowledged as much, again, in his response to our statement of undisputed material facts, 488 of the joint appendix, [00:23:16] Speaker 02: He said, with regard to over detention, there are no written policies and procedures in place. [00:23:21] Speaker 00: So it doesn't necessarily have to be written to be an explicit policy if it's stated and followed in some, even if it's verbal. [00:23:29] Speaker 00: But I guess my question is, do you disagree with the statement there that he had no other options given that there, if it's the court order that imposes the original sentence, [00:23:40] Speaker 00: and the existence of a court order that imposes the original sentence, as to which some of it is unserved, leaves the individual making the call on the ground with no other options, then isn't there a policy that says that as long as there's an unexpired sentence, the individual will remain detained? [00:24:01] Speaker 02: Well, Your Honor, I think the question then is whose policy, right? [00:24:07] Speaker 02: The Department of Corrections had no policy on the score. [00:24:10] Speaker 02: trial counsel was referring to was he thought that the court order in and of itself, did it suffice? [00:24:15] Speaker 02: I mean, obviously in Herd 1- It did suffice. [00:24:18] Speaker 00: Right. [00:24:19] Speaker 00: The court order itself meant that when there's a court order in place, then there's no option other than to keep the person detained. [00:24:28] Speaker 02: That was what trial counsel, I believe, was trying to convey. [00:24:32] Speaker 02: This court in Herd 1 seems to have indicated that that is not the case. [00:24:39] Speaker 02: At that point, we're talking about the mistaken judgment of a low-level employee, because again, there's no written policy, nor is there evidence of any dictate from someone who would be considered a policymaker, which I think- What should Cybert have done then? [00:24:53] Speaker 00: If it was mistaken, what should Cybert have done? [00:24:57] Speaker 02: I suppose, I mean, he would have had two alternatives. [00:25:02] Speaker 02: He could have released Mr. Hurd, which again, [00:25:08] Speaker 02: you know, there is risk associated with that. [00:25:11] Speaker 02: Or I suppose he could have initiated some sort of petition either to the court or internally. [00:25:20] Speaker 00: I guess, let me rephrase my question. [00:25:21] Speaker 00: What does the district think cyber should have done? [00:25:26] Speaker 02: Well, I mean, again, at the time, there was simply no policy in place. [00:25:31] Speaker 02: And I would note, too, that even this court has agreed that not [00:25:36] Speaker 02: every erroneously released prisoner is categorically exempt from being re-incarcerated or even necessarily due process. [00:25:47] Speaker 02: It's a very contextual inquiry. [00:25:49] Speaker 00: Right. [00:25:50] Speaker 00: I'm not even suggesting that I'm forecasting an answer on whether it would or would not have been proper to keep him detained. [00:25:57] Speaker 00: I'm not trying to get to that question. [00:25:59] Speaker 00: I'm just trying to understand what the district understanding was as to what should happen in this situation. [00:26:07] Speaker 02: I don't think, in terms of district policy, that's the very point. [00:26:11] Speaker 02: I don't think that there was any specific guidance or policy as to what should happen, because the situation was simply fairly extraordinary. [00:26:23] Speaker 02: It was very rare, based on the testimony and the record, to see someone with an unserved sentence like this. [00:26:31] Speaker 02: Many times it turned out, apparently, that they had, in fact, served their sentence somewhere else in Maryland. [00:26:37] Speaker 02: to have someone who was just erroneously released by the Bureau of Prisons was, I believe Mr. Seibert testified that he was shocked when he saw that in the record. [00:26:47] Speaker 02: And so the question, I think we're in the realm where there is no express policy. [00:26:53] Speaker 02: There's no evidence in this record of any direction from a policymaker. [00:26:58] Speaker 02: And so then you're either in the third or fourth prong of the test set forth in Baker where you're talking about is there a custom [00:27:07] Speaker 02: or was there deliberate indifference? [00:27:10] Speaker 02: And I would submit that there is not sufficient evidence in this record to demonstrate a custom of re-incarcerating persons who have not served prior sentences because they were erroneously released. [00:27:24] Speaker 02: I mean, what's set forth by Mr. Hurd is, you know, reference to prior class actions and Bynum and Barnes, which really bear [00:27:36] Speaker 02: no relationship to what happened in this case. [00:27:39] Speaker 02: Those are, as the district court put it, garden variety over detentions, where there's no reason to believe it was lawful to detain those folks. [00:27:47] Speaker 03: Is there any general ratified Mr. Seibert's decision? [00:27:53] Speaker 03: Again, Your Honor. [00:27:54] Speaker 03: He's a policymaker. [00:27:56] Speaker 03: And I think if actions are ratified by a policymaker, what happens then? [00:28:02] Speaker 02: Well, so to be sure, [00:28:04] Speaker 02: If actions are ratified by a policymaker, the district can be held liable. [00:28:08] Speaker 02: But there are two things that I would note. [00:28:11] Speaker 02: The first is that it has to be the final policymaking authority in that area of the city's business. [00:28:17] Speaker 02: The attorney general simply does not run the Department of Corrections. [00:28:21] Speaker 02: And the second thing that I would say is that this ratification argument was not raised in any of the three briefs on summary judgment below the plaintiff filed. [00:28:29] Speaker 02: It was not raised in any of the two briefs that were filed before this court. [00:28:34] Speaker 03: Look, I didn't figure out there was a habeas action by myself. [00:28:37] Speaker 03: He argued that there was this habeas challenge to him, and the district came in and opposed his request for relief. [00:28:44] Speaker 03: Those facts are in the record. [00:28:45] Speaker 03: Well, I can take traditional notice that when DC files briefs, they're not just filed by Mr. Siebert. [00:28:54] Speaker 02: Oh, no, no, no. [00:28:55] Speaker 02: I'm agreeing that those facts are in the record. [00:28:57] Speaker 02: What's not in the record is any argument [00:28:59] Speaker 02: that that ratified the decision to re-incarcerate Mr. Hurd. [00:29:05] Speaker 02: I mean, perhaps my colleagues should have made those arguments, and then we would have had an opportunity to respond to them. [00:29:12] Speaker 02: But quite frankly, when the district is ordered to respond defensively in a lawsuit to allegations to say that that in and of itself is sufficient to hold the district liable under Menell, I'm not aware of any case that says that. [00:29:28] Speaker 02: I think it would be extraordinary. [00:29:29] Speaker 02: I think it would be especially extraordinary to make that holding with, with no argument in the record, with no notice to the district that this is going to be the theory under which it's held liable under Manel. [00:29:39] Speaker 02: I mean, this, this argument is plainly forfeited. [00:29:42] Speaker 02: And I think, I think that Mr. Heard having been well counseled should be held to that forfeiture. [00:29:47] Speaker 02: I mean, with no briefing to hold that the attorney general, as opposed to the director of the department of corrections or the city council, [00:29:54] Speaker 02: It is a policy maker. [00:29:56] Speaker 03: What if there's a disputed fact really about the nature of the policy written or unwritten. [00:30:05] Speaker 03: for when they find an unserved sentence in the record. [00:30:08] Speaker 03: Is it treated the same as the charges and detainers that you said left him no choice? [00:30:13] Speaker 03: Is it treated as was said at summary judgment, no choice? [00:30:17] Speaker 03: Or as you suggested, well, maybe Mr. Seibert was more than just this records agent and he in fact had the discretionary authority as you suggested to petition a court for clarification of his status. [00:30:31] Speaker 03: It seems like the nature of Mr. Seibert, whether he had any discretion or not, or whether, in fact, district policy required detention without process, seems to me the critical fact question here. [00:30:43] Speaker 03: It seems to be very much debated. [00:30:47] Speaker 02: Well, Your Honor, for that to be the case, there would have to be facts on the other side. [00:30:50] Speaker 02: And the facts here all indicate that there was no policy. [00:30:54] Speaker 02: There's an admission by Mr. Herd that there was no policy. [00:30:57] Speaker 02: There's testimony by Mr. Seibert that there was no policy. [00:31:00] Speaker 03: I think I think there's some talking past each other. [00:31:04] Speaker 03: If that's what I thought it was. [00:31:05] Speaker 03: And so if in fact you agree that there is a policy to detain if they find a charger detainer That's what we did on page 19. [00:31:14] Speaker 03: Okay. [00:31:14] Speaker 03: And then at least an attorney at summary judgment said, there's no discretion if you find a court judgment. [00:31:23] Speaker 03: And you say, well, that's just lawyers. [00:31:24] Speaker 03: You're just talking in the brief, the lawyer just talking there. [00:31:27] Speaker 03: But I'm assuming that in fact that it was more informed than that. [00:31:31] Speaker 03: And there is this policy about checking records. [00:31:34] Speaker 03: And there is this sense that Mr. Siebert doesn't have that much authority other than to check records and keep people detained. [00:31:41] Speaker 03: Why isn't that still a disputed fact question? [00:31:46] Speaker 02: Well, Your Honor, two things. [00:31:47] Speaker 02: I mean, I understand that there's some skepticism that this choice could have devolved to Mr. Seibert, but that's sort of the essence of the responding out superior [00:31:57] Speaker 02: inquiry. [00:31:58] Speaker 02: I mean, when you have a rogue employee who just... No, it's not a rogue employee. [00:32:02] Speaker 03: It's only a rogue employee. [00:32:03] Speaker 03: I guess, is there something in his job description that would let him know he could file petitions with the court to clarify whether... I'm not... Your Honor, I was asked what process should he have gone through in a hypothetical. [00:32:14] Speaker 02: To be frank, I don't know exactly what the process should be. [00:32:17] Speaker 03: Well, he was asked because the question was whether he had any discretion, and you were suggesting he did. [00:32:21] Speaker 03: And if it turns out he doesn't, that is... No, Your Honor. [00:32:24] Speaker 02: If that's the case, I misunderstood the question that I was responding to. [00:32:28] Speaker 02: I believed that I was asked, you know, what should he have done in a hypothetical world where, you know. [00:32:36] Speaker 02: Oh, no, I had this question. [00:32:38] Speaker 03: Maybe it was Judge Srinivasan's question, so I don't mean to step on it. [00:32:42] Speaker 03: So if I'm asking you in a real world, not a hypothetical world, what could Mr. Cyber have done other than detain him? [00:32:48] Speaker 03: Real world. [00:32:50] Speaker 03: What authority did he have to do other than keep him in jail? [00:32:54] Speaker 02: Well, I mean, I think under the policies, the policies leave it open. [00:33:00] Speaker 03: I mean, I suppose he could have been- There's a policy that says detain if it's a charge or detainer, but it's up to you if it's a court order, unserved court sentence. [00:33:13] Speaker 02: It's just- That's the policy of the District of Columbia. [00:33:16] Speaker 02: It's not, unserved court sentences are, and erroneous releases are, [00:33:24] Speaker 02: are not mentioned anywhere here. [00:33:25] Speaker 02: And to Mr. Seibert's credit, he did go ask his supervisor, the chief of the records office. [00:33:30] Speaker 03: But again, I mean, does she have any more authority to make a decision? [00:33:36] Speaker 02: Well, she's the supervisor. [00:33:38] Speaker 02: But no, she's not a policymaker. [00:33:39] Speaker 03: She doesn't have the authority. [00:33:42] Speaker 03: I'm sorry. [00:33:44] Speaker 02: She's not a policymaker. [00:33:45] Speaker 02: So she doesn't have the authority to find the district. [00:33:47] Speaker 02: But where the policy. [00:33:49] Speaker 02: Does she have the authority to release and say, never mind that unserved sentence? [00:33:53] Speaker 02: There's no policy that would have prevented her from doing that. [00:33:57] Speaker 02: The only thing that there is is the court order, which again, the employees here reasonably, but perhaps mistakenly interpreted as this extrinsic thing, the court order. [00:34:11] Speaker 02: They interpreted that as a reason to detain him. [00:34:15] Speaker 02: And again, that may have been mistaken, but it was their choice. [00:34:20] Speaker 02: Again, there's no policy here. [00:34:23] Speaker 02: governing what happens when you have someone who is erroneously released and has an unserved portion of their sentence. [00:34:29] Speaker 00: Can you just direct me to where in the appendix there's the written policy about charges and detainers? [00:34:34] Speaker 02: Sure. [00:34:35] Speaker 02: So I don't know that it's in the record. [00:34:38] Speaker 02: It's a statute and it is DC code section 24-211.02A as it existed in October 2011. [00:34:48] Speaker 02: All right. [00:34:49] Speaker 02: Can you give me the slide again? [00:34:51] Speaker 02: Sure, it is DC code section 24-211.02a. [00:34:56] Speaker 02: And it has changed a little bit since 2011, so what I was reading to you is the 2011 version. [00:35:08] Speaker 02: I don't think it's changed in a dispositive way. [00:35:11] Speaker 00: And that refers specifically to charges and detainers? [00:35:14] Speaker 02: Charger warrant there. [00:35:15] Speaker 02: Detainers are dealt with in a separate interstate compact on detainers. [00:35:23] Speaker 00: Okay. [00:35:24] Speaker 00: I'll make sure my colleagues don't have further questions for you. [00:35:27] Speaker 00: No. [00:35:28] Speaker 00: Thank you, Ms. [00:35:29] Speaker 00: Fanzal. [00:35:30] Speaker 00: Mr. Rowe will hear from you on rebuttal. [00:35:32] Speaker 00: Two minutes. [00:35:33] Speaker 04: Thank you, your honor. [00:35:35] Speaker 04: Talked a lot about policy this morning and policy can mean a lot of things. [00:35:39] Speaker 04: It can mean explicit order of the city council like we have here with the statute and the version of the statute is Act 19-129 that was in [00:35:49] Speaker 04: in place at the time of these events in October of 2011. [00:35:54] Speaker 04: And a copy of that is attached as an exhibit to the appellant's brief. [00:35:58] Speaker 04: So one thing that can be is an explicit ruling. [00:36:02] Speaker 04: And another can be a custom. [00:36:03] Speaker 04: Another can be a pattern of deliberate indifference. [00:36:06] Speaker 03: That policy you talk about talks about a charge or warrant. [00:36:09] Speaker 04: It does. [00:36:09] Speaker 04: It mentions that. [00:36:11] Speaker 04: And the distinction that the District of Columbia is trying to say here is, [00:36:17] Speaker 04: that there's some substantive difference between a charge or warrant that permits them to hold a prisoner who's otherwise subject to release pursuant to an order of the court, because the statute relates directly to circumstances in which you can hold a prisoner notwithstanding an order of the court commanding his release. [00:36:38] Speaker 04: And that relates directly to that. [00:36:40] Speaker 04: And so they're saying now that there's another order of the Superior Court that requires him to be confined. [00:36:47] Speaker 04: That order commanded him or remanded him to the custody of the attorney general, and that there's some substantive difference between a court order and a warrant or another charge. [00:36:59] Speaker 04: And under the circumstances here, there really can't be, that distinction really can't be made, because what is it that Mr. Seepert was required to do? [00:37:10] Speaker 04: And it is true. [00:37:11] Speaker 04: He had no option. [00:37:12] Speaker 04: This is what his job was. [00:37:13] Speaker 04: His job was to check the records. [00:37:15] Speaker 04: And if there was something that prevented Mr. Heard from being released, his job was to keep Mr. Heard in jail. [00:37:22] Speaker 04: And that's what the policy ultimately is here. [00:37:24] Speaker 04: The policy is something that causes the employees of the District of Columbia to act in a certain way. [00:37:31] Speaker 00: But there's no charge or detainer in this case, right? [00:37:35] Speaker 00: Right, so if let's just suppose a world in which there was a policy, an express, even written policy, and the express written policy only refers to charges or detainers. [00:37:49] Speaker 00: You may have an argument that there's still no discretion as to an unexpired sentence by dent of a court order that was on the books as of 2006, but the particular policy that I'm hypothesizing that refers specifically to charges or detainers wouldn't cover that situation. [00:38:04] Speaker 00: You need something else that covers an old court order that imposed a sentence as to which some portion of the sentence has not yet been served. [00:38:13] Speaker 04: I don't think so, your honor, because the question is whether or not the policy that's there has caused the employee to act. [00:38:24] Speaker 04: And that's what has happened here. [00:38:26] Speaker 00: I think I understand your argument about causation, but can we just not talk about causation for a second? [00:38:33] Speaker 00: I just want to know, was there a policy [00:38:36] Speaker 00: that meant that Cybert had no discretion because there was a 2006 sentence by virtue of court order. [00:38:46] Speaker 00: And I'm hypothesizing a world in which there is a policy that tells someone in Cybert's position, you don't have any authority if there's a charge or a detainer, but it just doesn't say anything about a sentence that was imposed in 2006 as to which some of it has not yet been served. [00:39:02] Speaker 00: And so then I'm asking you, well, then what fills that gap? [00:39:07] Speaker 04: In assuming that there were significant, sufficient differences between those circumstances. [00:39:15] Speaker 04: And if you assume that Mr. Siebert had discretion to make those decisions, then it's up to Mr. Siebert to make that decision. [00:39:23] Speaker 04: But here he didn't have any such discretion. [00:39:26] Speaker 04: His obligation was if there's something else out there that requires you to keep him, you got to keep him. [00:39:31] Speaker 04: And where are you getting that from? [00:39:34] Speaker 04: That's, that's what the city council said. [00:39:36] Speaker 04: And that's what, that's what that's in the statute that talk about mistakenly released prisoners or unexpired sentences, but it does talk about charges and detainers and warrants and things like that. [00:39:54] Speaker 04: And when you are thinking about [00:39:56] Speaker 04: that statute and what it governs. [00:39:58] Speaker 04: It governs all manner of things. [00:40:00] Speaker 00: Can you show me that statute again? [00:40:02] Speaker 00: You said it's in there, right? [00:40:04] Speaker 00: It's appended to you. [00:40:05] Speaker 04: Yeah, the original is attached to a copy of the appellants brief as an exhibit. [00:40:09] Speaker 04: It's addendum number six at page five, and it's in the first paragraph in section 2A. [00:40:20] Speaker 00: It's addendum five to your brief? [00:40:23] Speaker 04: Yes, sir. [00:40:29] Speaker 04: You know, and what it says is the Department of Corrections shall process and release an inmate from the central detention facility within five hours of a court order granting his or her release unless the inmate is to continue in confinement pursuant to another charge or warrant. [00:40:48] Speaker 04: And I think it's probably also true that if you're serving a sentence on another on another charge, that's another charge. [00:40:59] Speaker 04: And that's what we have here. [00:41:05] Speaker 03: I would have thought another charge would be a pending charge. [00:41:07] Speaker 03: Is that not right? [00:41:08] Speaker 04: Well, it could be. [00:41:09] Speaker 04: I mean, it doesn't say pending charge here. [00:41:12] Speaker 03: It's no longer a charge once you're convicted of it. [00:41:17] Speaker 04: That's true. [00:41:18] Speaker 04: And at this point in time, [00:41:25] Speaker 04: You know, the policy was if you can keep him, keep him. [00:41:30] Speaker 04: And one of the things that was talked about here was this order from Judge Holliman seven months later. [00:41:38] Speaker 04: I mean, that hearing took place in July of the following year, seven months or nine months after Mr. Herd was incarcerated. [00:41:47] Speaker 04: And what Judge Holliman said, and we've taken the position that this also articulates the policy of the District of Columbia. [00:41:55] Speaker 04: because what he said was, in the court's view, in circumstances like this, you should keep him and let the court decide. [00:42:03] Speaker 03: And if that's what the... Did he say that? [00:42:05] Speaker 03: Where is that in the record? [00:42:07] Speaker 04: That's, I believe... He said that's... [00:42:30] Speaker 04: Okay, that's on page 8113. [00:42:34] Speaker 03: Right, that's what I'm having real trouble reading. [00:42:36] Speaker 03: And can you tell me what the actual transcript page is? [00:42:38] Speaker 03: Because my numbers are on top of each other, so I can't tell what's what number here. [00:42:54] Speaker 04: Hold on a sec. [00:43:09] Speaker 03: Might be 38. [00:43:10] Speaker 03: I don't know if I'm talking about... It could be. [00:43:12] Speaker 04: I don't have that right in front of me. [00:43:19] Speaker 00: Yeah, it looks like it's 38. [00:43:21] Speaker 00: It's hard to make out the page numbers, but what are you talking about? [00:43:25] Speaker 00: What's the statement? [00:43:27] Speaker 03: He says... I think it's the end of that first paragraph. [00:43:35] Speaker 03: It's not within the Department of Corrections purview. [00:43:38] Speaker 04: Yeah, um. [00:44:05] Speaker 04: says, and this is, I think it's a hearing transcript on page 38. [00:44:09] Speaker 04: Yeah. [00:44:11] Speaker 04: And he says, in the court's view, they have an obligation based on that prior order to hold him until the court makes a determination as to what should occur. [00:44:20] Speaker 04: It's not within the Department of Corrections purview. [00:44:24] Speaker 03: How does that help you? [00:44:25] Speaker 03: That says it's not department. [00:44:26] Speaker 04: Well, I mean, if that's an articulation of what the policy is in the District of Columbia, and this is a Superior Court Judge in the District of Columbia, [00:44:35] Speaker 04: Then it's just one more example of what the policy sounds like the Superior Court. [00:44:38] Speaker 03: It's a policymaker and that quote sounds like the spirit court says you don't have any choice. [00:44:44] Speaker 03: Do you see it's it's up to there's a court order. [00:44:46] Speaker 04: You gotta right and and if Mr. Siebert didn't have any option to do anything other than what he did, then it's the District of Columbia that caused him to act and that's the issue under Manel is whether or not what is well, it's because the question is, [00:45:04] Speaker 04: is something that the District of Columbia did as an entity require its employee to act in a certain way. [00:45:10] Speaker 04: If the answer to that is yes, then the District of Columbia is liable. [00:45:16] Speaker 04: If the answer to that is no, then the District of Columbia is not liable. [00:45:21] Speaker 04: And here it was the official policy of the District of Columbia that prisoners were to be held and that the DC prisoners were to serve their misdemeanor time in the DC jail. [00:45:34] Speaker 04: And so, you know, with those being the DC policies, Mr. Siebert didn't have an option. [00:45:39] Speaker 04: He just did what he was supposed to do. [00:45:42] Speaker 04: He did what his employer told him to do. [00:45:44] Speaker 04: And under those circumstances, it's not respondeat that's superior, respondeat superior that applies to you. [00:45:50] Speaker 00: I think we have that part of your argument. [00:45:51] Speaker 00: Let me just make sure that my colleagues don't have additional questions for you at this time. [00:45:57] Speaker 00: OK. [00:45:58] Speaker 00: Thank you, counsel. [00:45:59] Speaker 00: Thank you to both counsel. [00:46:00] Speaker 00: We'll take this case under submission.