[00:00:00] Speaker 06:
Case number 21 of 7122, Warren R. Aries at Belant versus Muriel Bowser in her official capacity as the mayor of the District of Columbia at AL.

[00:00:11] Speaker 06:
Ms.

[00:00:11] Speaker 06:
Barron for the at Belant, Ms.

[00:00:13] Speaker 06:
Johnson for the at Belitz.

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Ms.

[00:00:15] Speaker 04:
Barron, good morning.

[00:00:34] Speaker 00:
Good morning, honors.

[00:00:35] Speaker 02:
My name is Angela Aaron and I am pro bono counsel for Mr. Warren Harris.

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I would like to reserve two minutes for rebuttal.

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This court should reverse the district court's decision to grant summary judgment and remand the case before a jury trial because the district court committed two legal errors.

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First, there are genuine disputes of fact as to whether Mr. Harris presented a risk of danger or elopement.

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which are material to whether the restraints were a violation of his due process rights.

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Second, the district court misapplied the professional judgment standard under controlling Supreme Court law in Youngberg v. Romeo.

[00:01:15] Speaker 04:
Let me ask you, because I'm confused by what the district court did.

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And maybe I'm wrong, but it seemed to me, she said, I don't have to decide which

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whether Wolfish or Youngberg applies because both of them have been met.

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Now, if I'm right in that reading, how there is no evidence that meets Youngberg and the only evidence about medical judgment is Dr. Wasser who says it was way beyond established medical judgment.

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How do you read how she analyzed the two

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standards.

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So she did not get the standard right under Youngberg.

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Under Youngberg, the state may not restrain an involuntarily committed patient.

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Let me just stop you.

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Do you read her order as having said, I do not have to decide which one applies because they're both met?

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Well, under Youngberg, his rights were violated, and under Bell, his rights were violated.

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And under Youngberg, the hospital did not satisfy the professional judgment standard.

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And under Bell, the restraints were not reasonably related to the state's security interests because there was no indication of a security risk.

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Now turning to what happened.

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After years of treatment at St.

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Elizabeth's Hospital, the hospital granted Mr. Harris privilege-e status, giving him the freedom to leave the hospital grounds unsupervised and unrestrained multiple days a week.

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Now the hospital has specifically said that Mr. Harris used these privileges appropriately for a year and recommended his conditional release on the basis that he was not dangerous to himself or others.

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That was the whole point of the hearing, wasn't it?

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St.

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Elizabeth wanted the certificate to give him conditional release.

[00:03:22] Speaker 02:
Exactly.

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Exactly, Your Honor.

[00:03:23] Speaker 02:
So the hospital specifically said that he was not a danger, said that he was able to be conditionally released.

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But then on the day of the hearing, the hospital subjected him to restraints.

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five point mental restraints, his ankles were bound, his wrists were shackled to a metal waistband.

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When he arrived at the court because his belt was needlessly taken away from him, his pants started falling down.

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So he's standing before a judge in his underwear until court personnel held his pants up for him throughout the hearing.

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And what's important here is that during summary judgment briefing, the hospital implemented a new policy for NGRI patients requiring a treating psychologist

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and psychiatrists to determine whether a patient poses a risk of danger or loathing.

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But this case arises under the 2015 policy, right?

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I'm sorry.

[00:04:18] Speaker 03:
This case arises under the 2015 policy, correct?

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Yes.

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We're not applying the new policy.

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No.

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Right.

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And also, am I right that sometimes your brief reads as if you're challenging

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the individual decision with respect to Harris.

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But the officials who made these decisions were acting pursuant to the policy.

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So the question before us, I think, is, is that policy constitutional, correct?

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The 2015 policy.

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Because if it is, then, then, then we affirm, right?

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Right.

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So you agree with that?

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that we are challenging the policy as it was applied to Mr. Harris, because this blanket restraint policy that subjects Mr. Harris to restraints who did not pose a risk of danger or elopement demonstrates a professional judgment could not have been exercised.

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And we don't disagree that blanket restraint policies

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can be held constitutional.

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We saw this in Bolu and we saw it in Balcombe, but in both of those situations, the patients did not introduce evidence showing that they were not dangerous, which is what sets us apart here.

[00:05:33] Speaker 05:
I'm confused a little bit about your answer to Judge Tatel's question.

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On page 20 of your brief, 20 of your brief, you say you're challenging quote, an individual decision.

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And you say you're not challenging quote and across the board policy.

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They're challenging the policy as it was applied to Mr. Harris because we're no longer challenging the policy because the policy is moot.

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It has been since replaced.

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We are now challenged at challenging it as it was applied to Mr. Harris.

[00:06:07] Speaker 05:
You keep saying you're challenging the policy as applied to Mr. Harris.

[00:06:12] Speaker 05:
I guess are you challenging the individual

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uh, individual fractional officer decision.

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Someone made a decision to put handcuffs.

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Are you challenging that person's decision to follow the policy or are you challenging the policy itself?

[00:06:34] Speaker 02:
Yeah.

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So the hospital's decision to subject Mr. Harris to the policy was not an exercise of professional judgment under Youngberg.

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See what I don't understand.

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I'm confused now.

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I'm confused because

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The policy doesn't say anything one way or the other about restraints, right?

[00:06:54] Speaker 02:
It does, actually, sorry.

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It does?

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It does, yes.

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How does it say?

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The policy says that... I'm talking about the 2015 policy.

[00:07:02] Speaker 02:
Yes.

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At A145, it says that mental restraints will be applied.

[00:07:07] Speaker 03:
Right.

[00:07:08] Speaker 03:
Sorry.

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Yes, it does say they will be applied.

[00:07:10] Speaker 03:
And you concede, I think in your papers, that they're always applied, right?

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So under the 2015 policy, the Department of Corrections always applies them, correct?

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So I don't understand what you mean by as applied.

[00:07:26] Speaker 03:
The policy is to transport people with restraint.

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And that's what happened.

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Now, are you saying that it's unconstitutional because it didn't have an exception for people who weren't dangerous?

[00:07:41] Speaker 02:
Well, yes, because that's directly contradictory to what Youngberg said.

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Youngberg says that you have to balance the state's interests versus the individual interests.

[00:07:48] Speaker 03:
No, no, no, wait.

[00:07:49] Speaker 03:
I'm just trying to understand what you're challenging and what the policy says.

[00:07:52] Speaker 03:
You're challenging the policy as applied to Harris, right?

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That's your point.

[00:07:57] Speaker 03:
Well, but it isn't true that the only thing we have to look at is the policy, right?

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Is that policy constitutional?

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I'm not sure why the particular circumstances of this case have anything to do with that, since you've conceded that all people transported under the policy are restrained.

[00:08:20] Speaker 02:
But under Youngberg, the restraints must reflect a proper balance between state and individual.

[00:08:25] Speaker 03:
Yes, that's the constitutional question.

[00:08:27] Speaker 03:
I got it.

[00:08:28] Speaker 03:
All right, fine.

[00:08:29] Speaker 03:
Yes.

[00:08:29] Speaker 03:
OK, so when we're looking at professional judgment, you say we should look at professional medical judgment, right?

[00:08:38] Speaker 02:
Well, we think you should be looking at professional correctional and medical judgment because use of restraints must reflect, it must embrace both security and medical concerns because Mr. Harris is a patient here.

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He's not a prisoner.

[00:08:51] Speaker 03:
Okay.

[00:08:51] Speaker 03:
So what, what would you identify as the single best piece of evidence in the record that supports your argument that this policy is not consistent with a professional judgment?

[00:09:04] Speaker 02:
that the hospital itself determined and represented to the DC Superior Court that Mr. Harris was not dangerous, which is the very justification for the state's use of restraints here.

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And just to close out, if this court lets the district court's opinion stand, it is effectively writing Youngberg out of the law because it is affirming that the district court's opinion can restrain patients with mental health

[00:09:33] Speaker 02:
issues who are not dangerous.

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And we're really here today to preserve the long standing precedent precedent that you cannot grant summary judgment when there are genuine issues of material fact.

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The hospital's decision to restrain Mr. Harris when it determined that he was not dangerous and not a flight risk raising genuine dispute of fact as to whether professional judgment was exercised when Mr. Harris was restrained.

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is, am I correct in saying what you want at bottom is individualized assessment?

[00:10:07] Speaker 02:
No, what we want is that is the restraints to be applied when they are necessary.

[00:10:15] Speaker 02:
So if you have a blanket restaurant policy from what Judge Anderson just asked you,

[00:10:22] Speaker 02:
Well, so because if you have a blanket restraint policy that applies to individuals who are determined dangerous, we're not saying that you have to conduct an individual risk assessment every single time before applying restraints.

[00:10:33] Speaker 02:
But if a patient has not been diagnosed, clinically assessed dangerous, then you do have to conduct an individual risk assessment.

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But here we already had a determination that Mr. Harris was not dangerous, but then he was subjected to restraints.

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So that's just ignoring the hospital's own determination there.

[00:10:51] Speaker 04:
All right, we'll give you some time and reply.

[00:10:54] Speaker 04:
Thank you.

[00:10:55] Speaker 04:
Ms.

[00:10:56] Speaker 04:
Johnson.

[00:11:07] Speaker 00:
Good morning.

[00:11:07] Speaker 00:
May it please the court?

[00:11:08] Speaker 00:
Holly Johnson for the District of Columbia.

[00:11:11] Speaker 01:
The transport policy at issue here, the blanket categorical transport policy, is consistent with the scheme applied by the federal government and several other states

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Four circuits have addressed this policy.

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All have upheld it as constitutional.

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None have overturned it.

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And I think that the key point in the way the district court made this decision was that either you apply Bell, which is a broader test, or you apply the more specific Youngberg test, that you defer to the professional judgment that is relevant to the question.

[00:11:45] Speaker 01:
So the professional judgment for a treatment decision is going to be the professional judgment of a medical professional.

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The professional judgment of a purely security driven decision is going to be the professional judgment of the security officials.

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And Ms.

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Isn't it, isn't it both?

[00:12:03] Speaker 03:
There are, you say security, they say medical, isn't it really both?

[00:12:09] Speaker 03:
This policy was issued by the hospital administrator, right?

[00:12:13] Speaker 03:
Yes.

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So it's the hospital administrators professional develop professional standards that we're looking at.

[00:12:19] Speaker 03:
Correct.

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And wouldn't a hospital administrator who's responsible for both the hospital and for transporting the prisoners take account of both security and medical considerations?

[00:12:31] Speaker 01:
Not necessarily.

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And I think that it's important to note that there may be closer cases that are both, but there was nothing treatment related about a transport to court.

[00:12:41] Speaker 01:
He wasn't being taken out.

[00:12:44] Speaker 03:
No, no, no.

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I'm talking about the policy.

[00:12:45] Speaker 03:
You agree, right?

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The only thing before us is the 2015 policy.

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Correct?

[00:12:51] Speaker 03:
Yes.

[00:12:51] Speaker 03:
OK.

[00:12:51] Speaker 03:
And the 2015 policy requires transferring the person to the Department of Corrections and restraints.

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Correct?

[00:13:00] Speaker 03:
Correct.

[00:13:01] Speaker 03:
Okay, so the question is, is that supported by the relevant professional development, right?

[00:13:07] Speaker 03:
Absolutely.

[00:13:07] Speaker 03:
And isn't the relevant professional development, professional standards, the standards applied by the hospital administrator who wrote the policy?

[00:13:18] Speaker 03:
Isn't that what we look at?

[00:13:19] Speaker 01:
Yes, that's what you're looking at.

[00:13:21] Speaker 03:
But it's not just security, as you say in your brief.

[00:13:26] Speaker 03:
It can't be.

[00:13:28] Speaker 01:
I feel like I have two answers to this.

[00:13:29] Speaker 01:
We consider this an entirely security driven decision.

[00:13:33] Speaker 03:
Excuse me, I'm sorry to interrupt, but you keep saying decision.

[00:13:38] Speaker 03:
Do you mean the decision to retain him or the decision to issue the policy?

[00:13:43] Speaker 01:
The decision to issue the policy.

[00:13:44] Speaker 03:
OK, so where in the record is there any indication at all that the hospital administrator, I forgot her name, included that, you know, security

[00:13:56] Speaker 03:
the concerns outweighed any medical concerns.

[00:14:01] Speaker 03:
Is there anything in there that says that?

[00:14:02] Speaker 01:
No, and I can answer this.

[00:14:04] Speaker 01:
The record says only that the decision was made by the professional.

[00:14:08] Speaker 01:
But what Youngberg says is the test is not that the government has to explain what that individual who made the decision was thinking at the time.

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The question is whether a decision was made by the appropriate professional.

[00:14:20] Speaker 01:
So at that point, the burden then shifts to the plaintiff.

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And liability can only be imposed if the plaintiff can establish that the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible did not actually base the decision on such a judgment.

[00:14:42] Speaker 01:
Now, hospital administrators have to consider security as a key critical part of administering a hospital.

[00:14:49] Speaker 01:
Young bird is about treatment.

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The restraint in young bird was a treatment based restraint restraint.

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It was designed to protect that individual from himself in the hospital during treatment.

[00:15:02] Speaker 01:
So younger is a very specific situation.

[00:15:04] Speaker 01:
In fact, the question in young bird about is about the right to treatment.

[00:15:08] Speaker 01:
and the safety versus individual freedom, which were in conflict because that individual was so impaired that he posed a danger to himself and others on a daily basis.

[00:15:18] Speaker 01:
He was restrained for hours at a time in the hospital.

[00:15:21] Speaker 01:
What we're dealing with here is a correctional question.

[00:15:24] Speaker 01:
How do you take someone safely to court?

[00:15:26] Speaker 01:
For legal reasons, because he has been adjudicated to be dangerous.

[00:15:31] Speaker 01:
And I feel like it's really important to push back on this.

[00:15:34] Speaker 01:
The hospital was proposing that Mr. Harris be conditionally released.

[00:15:39] Speaker 01:
He was still adjudicated to be dangerous.

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He had been conditionally released on several occasions before, and on at least one of them, he had committed such a severe crime while conditionally released that he was imprisoned for another three years.

[00:15:51] Speaker 01:
He was not non-dangerous.

[00:15:53] Speaker 01:
It was just at the point where the hospital's opinion was that conditional release was appropriate.

[00:15:58] Speaker 01:
This does not mean that it was automatically safe to transport him

[00:16:03] Speaker 01:
to court without restraint.

[00:16:05] Speaker 01:
And in fact, the professional judgment of the correctional industry, including people who are civilly committed, like under the federal civil commitment system for people found not guilty by reason of insanity, that system requires transfer to court in full restraint.

[00:16:20] Speaker ?:
Yes.

[00:16:20] Speaker 05:
I think I'm probably with you on the due process question, but since you've kind of opened the door to defending the policy on policy grounds,

[00:16:30] Speaker 05:
And it does seem odd.

[00:16:33] Speaker 05:
The hospital says, we're going to let him run around the city without shackles.

[00:16:40] Speaker 05:
But on this day, with this transit, public safety requires that he be in shackles.

[00:16:48] Speaker 01:
Well, interestingly, even under the new policy, and I know the new policy isn't an issue and the new policy doesn't set a new constitutional standard, but even under the new policy,

[00:16:58] Speaker 01:
Person with a Class E privilege is not automatically entitled to transport by the hospital as opposed to by the Department of Corrections.

[00:17:05] Speaker 05:
That's not, I think, quite as responsive to my question as I was hoping for.

[00:17:10] Speaker 05:
I mean, if he's so dangerous that he can't bring him into a courtroom without shackles, it seems like he's probably so dangerous he ought not be released from the hospital.

[00:17:23] Speaker 01:
Hopefully this will be more responsive to what you're asking.

[00:17:26] Speaker 01:
I think it's important to consider dangerousness as not an exact science and not a binary concept.

[00:17:33] Speaker 01:
So the hospital is making their best guess, really their best guess as to whether he's going to commit a crime.

[00:17:38] Speaker 01:
And if you look at what happened in Baloo, Baloo tried the policy that the department has implemented now.

[00:17:44] Speaker 01:
The state tried implementing an individualized policy, and they had to abandon it and go back to a categorical policy because someone tried to escape.

[00:17:53] Speaker 01:
Someone that they had individually decided did not need to be handcuffed on a transport tried to escape.

[00:17:59] Speaker 01:
So they went back to a categorical policy.

[00:18:01] Speaker 01:
And that's why I think the new policy

[00:18:03] Speaker 01:
Well, I think is perhaps and probably better policy on the part of the department.

[00:18:08] Speaker 01:
Certainly the department believes it's a better policy.

[00:18:10] Speaker 01:
It doesn't set the constitutional floor and there's risk.

[00:18:13] Speaker 01:
There's risk with the department's new policy.

[00:18:15] Speaker 01:
Now, the standard for substantive due process is non-punitive.

[00:18:20] Speaker 01:
The standard for substantive due process, whether it substantially exceeds the norms.

[00:18:25] Speaker 05:
Can you think of any restraint policy in a situation like this that would rise to the level of a due process violation?

[00:18:34] Speaker 01:
but none of them are in a case exactly like this.

[00:18:36] Speaker 01:
I could see Youngberg referring to the appropriate professional making the decision.

[00:18:41] Speaker 01:
Let's say a janitorial staff in a mental health hospital decided that it was just easier to clean up if the patients were restrained and weren't complaining or giving them a hard time.

[00:18:50] Speaker 01:
Right.

[00:18:50] Speaker 05:
I mean, I see where there's the expertise issue there, but imagine the chief nurse hospital and the chief administrator of the hospital

[00:18:58] Speaker 05:
said in my expert opinion, it's important that that everyone even this even the least dangerous patient be transported to a courthouse not just in shackles, but in a straight jacket and with the silence of the lambs mask.

[00:19:15] Speaker 05:
You think that's a due process violation?

[00:19:17] Speaker 01:
It might be.

[00:19:17] Speaker 01:
I mean, we'd have to look at the evidence.

[00:19:19] Speaker 01:
I would think it probably is.

[00:19:20] Speaker 01:
I would agree.

[00:19:21] Speaker 05:
What kind of test would you apply there?

[00:19:22] Speaker 01:
The test is whether it exceeds the norms, the standards, substantially exceeds the norms, the standards, and the norm for people who are part of the criminal justice system, adjudicated dangerous.

[00:19:36] Speaker 01:
I mean, Mr. Harris killed someone.

[00:19:40] Speaker 01:
He was found not guilty by reason of insanity, which means that he admitted he did it, and it was because of his mental health.

[00:19:45] Speaker 01:
He was plainly part of the system.

[00:19:48] Speaker 01:
And transporting them to court in handcuffs is the norm.

[00:19:52] Speaker 01:
That is the standard.

[00:19:53] Speaker 01:
So what we're looking at here is not whether it was a good idea, not whether Mr. Harris was individually, personally.

[00:20:02] Speaker 01:
What happened to him sounds horrible.

[00:20:05] Speaker 01:
But it didn't cause any long-term harm, which is the standard for exceeding the norm.

[00:20:09] Speaker 01:
And he hasn't alleged.

[00:20:11] Speaker 03:
That's certainly not the standard for a substantive due process violation.

[00:20:15] Speaker 01:
The standard for the substantive due process violation is non-punitive.

[00:20:18] Speaker 01:
The standard when we get specific to handcuffing, specific to mechanical restraints, at least within the correctional industry, and you can see this in the record from the expert evidence that we introduced, is that the medical

[00:20:33] Speaker 01:
the medical considerations can trump and outweigh the security considerations only when there is going to be a risk of long-term harm or physical injury.

[00:20:44] Speaker 01:
And that's just the stand.

[00:20:48] Speaker 04:
Let me tell you what I think is purely punitive.

[00:20:51] Speaker 04:
And that is to allow a man to stand in front of a court and partially significantly disrobe nothing he can do about it.

[00:21:01] Speaker 04:
Frankly, I can't believe a judge would allow it to continue.

[00:21:06] Speaker 04:
And it was continued.

[00:21:07] Speaker 04:
I don't know if I don't think the record shows why it was continued, but it should have been continued.

[00:21:12] Speaker 04:
And there was no excuse to allow that man to stand in this in a courtroom like this courtroom, not fully and significantly dressed.

[00:21:26] Speaker 04:
And that is purely punitive.

[00:21:29] Speaker 04:
Your honor, I'm not going to disagree to that or they could have, uh, but the idea that, and there is some dispute in the record because you say that he was forced, uh, to hold his own pants up.

[00:21:41] Speaker 04:
They say, let me finish.

[00:21:43] Speaker 04:
They say that, uh, the guards held his pants up.

[00:21:49] Speaker 04:
I don't know what happened.

[00:21:50] Speaker 04:
Either one is I think unacceptable, but, um, they could have and should have,

[00:21:59] Speaker 04:
either got a piece of string, said, your honor, we'll continue this until he has pants on with an elastic band or something, or I don't know.

[00:22:09] Speaker 04:
But that was totally punitive.

[00:22:13] Speaker 01:
I would like to emphasize that that is not the District of Columbia.

[00:22:16] Speaker 01:
That was the United States Marshal Service.

[00:22:17] Speaker 04:
I know that.

[00:22:18] Speaker 01:
So that's why I say what happened to him was horrible.

[00:22:22] Speaker 01:
That was that was it was it shouldn't have happened.

[00:22:24] Speaker 01:
But to blame that on the fact that the department has a policy of having the Department of Corrections transport people because of a security risk is taking one single event and trying to throw in a policy.

[00:22:36] Speaker 04:
Let me ask you about that policy.

[00:22:38] Speaker 04:
I don't think it's in the record, but what is the hospital's policy with respect to other transport that's required?

[00:22:45] Speaker 04:
Let's say one of the residents needs surgery that cannot be performed at St.

[00:22:50] Speaker 04:
Elizabeth's or has to attend a funeral.

[00:22:53] Speaker 01:
My understanding from the record is that the policy in 2015, there's a new policy now, but the policy that we're dealing with now only had to do with transport to court.

[00:23:01] Speaker 01:
And there is reason to consider transport to court particularly volatile.

[00:23:05] Speaker 04:
What was the policy with respect to going to a funeral or to a hospital for surgery?

[00:23:10] Speaker 01:
I believe, and I'm not 100% sure of this, but I believe that the policy was that the hospital would conduct the transport.

[00:23:18] Speaker 01:
And so if the hospital's conducting the transport, I don't believe the hospital did restraint.

[00:23:24] Speaker 01:
I'm not entirely sure of that, that that distinction was not really at the heart of this case.

[00:23:29] Speaker 01:
The question was whether this, I mean, the question at the heart of this case is whether Mr. Harris offered any evidence at all, any evidence with regard to exceeding correctional standards or security based standards.

[00:23:43] Speaker 01:
I found it interesting to hear an argument today.

[00:23:45] Speaker 01:
His counsel say that she believes correctional standards are appropriate.

[00:23:48] Speaker 01:
because they have based their entire case on Dr. Wasser's opinion.

[00:23:52] Speaker 01:
And Dr. Wasser, first of all, every single time he used the word professional judgment, he stuck the word medical in there.

[00:23:58] Speaker 01:
I don't think that was a mistake.

[00:24:00] Speaker 01:
And then he specifically said that he believed that the decision should be solely clinical.

[00:24:06] Speaker 01:
That's on page 225 of the appendix.

[00:24:08] Speaker 01:
and that it was inherently medical.

[00:24:10] Speaker 01:
That's on 483.

[00:24:12] Speaker 01:
Basically, Dr. Wasser said correctional decisions should safety based decisions should have no role at all in the decision as to whether to restrain someone.

[00:24:22] Speaker 04:
And so he also said this reflexively and automatically using restraints on involuntarily committed forensic patients.

[00:24:33] Speaker 04:
absent an individualized and clinically driven risk assessment and justify their use when transporting patients from the hospital to court represents a substantial departure from accepted professional medical judgment.

[00:24:49] Speaker 01:
But we contend that there are other things at play besides medical judgment.

[00:24:54] Speaker 01:
And the question of whether something is well, let me ask you this.

[00:24:57] Speaker 04:
How do you read the district judge's order?

[00:25:01] Speaker 04:
Do you read it?

[00:25:03] Speaker 04:
Well, just how do you read it as far as choosing either Bell or Youngberg?

[00:25:09] Speaker 01:
So the district court did not choose.

[00:25:11] Speaker 01:
The district court said this passes muster under either this court.

[00:25:14] Speaker 04:
How did it pass muster under Youngberg when the only expert said this flies way off the radar?

[00:25:23] Speaker 01:
Because there's two ways to read Youngberg.

[00:25:26] Speaker 01:
You can either read it narrowly

[00:25:28] Speaker 01:
and say that it requires professional medical judgment, regardless of whether it's a medical decision or a treatment-based decision, or you can read it broadly as Youngberg itself permits.

[00:25:38] Speaker 01:
If you look at the language of Youngberg, you can read it broadly as saying any person competent to make the particular decision, it's their professional judgment that's at issue.

[00:25:46] Speaker 04:
So is it just semantics?

[00:25:48] Speaker 04:
In other words, she would have been clearer if she'd said the district judge

[00:25:52] Speaker 04:
Youngberg doesn't apply here.

[00:25:54] Speaker 01:
No, and this is where it gets tricky.

[00:25:56] Speaker 01:
So the courts, while all the circuits that have looked at this have found the policy to be constitutional, there is a split on their framework, on their doctrinal approach.

[00:26:05] Speaker 01:
And two courts, and I think Beaulieu is the clearest one, the Eighth Circuit, but Rosato, the Seventh Circuit, follows the same structure.

[00:26:12] Speaker 01:
Two courts have said, Youngberg applies to people who are civilly committed due to mental health reasons or intellectual disability, but we have to read it broadly to incorporate the expertise of people who are not medical professionals or who are in addition to being medical professionals are considering security-based concerns.

[00:26:31] Speaker 01:
Other courts have considered

[00:26:33] Speaker 01:
And with that, I would refer this court to Healy.

[00:26:36] Speaker 01:
I think that's the clearest one.

[00:26:38] Speaker 01:
And that's the First Circuit has held that the one also Lane says that Lane has to do with a different back pattern.

[00:26:46] Speaker 01:
It's not a transport policy, but I think Lane does the best job explaining how Youngberg should only be applied to treatment based decisions.

[00:26:54] Speaker 01:
Youngberg was a treatment based case.

[00:26:56] Speaker 01:
But what the district contends is we don't have a dog in this fight as to whether Youngberg applies or Bell applies.

[00:27:03] Speaker 01:
But if you're going to apply Youngberg broadly, you need to interpret it broadly, to apply it broadly to non-medical situations, and then narrowly require it to satisfy medical professional judgment, goes way beyond what Bell envisions with regard to the standard.

[00:27:18] Speaker 03:
Even if I agree with you about that, I actually do think that's the right way to interpret it.

[00:27:24] Speaker 03:
Going back to your answer to Judge Henderson when she was focusing on the medical

[00:27:30] Speaker 03:
considerations.

[00:27:31] Speaker 03:
You said there's more at stake here.

[00:27:36] Speaker 03:
But where in the record do we know that the hospital administrator who issued this policy concluded that security concerns outweigh medical concerns?

[00:27:46] Speaker 01:
So I have two responses to that.

[00:27:47] Speaker 01:
And the first might be less satisfying, which is Mr. Harris didn't challenge whether the appropriate professional was the chief nurse executive or whether it was a security-based decision.

[00:27:59] Speaker 01:
So we didn't put on any extra evidence in that regard.

[00:28:02] Speaker 01:
But my second response, which will hopefully be more satisfying, is that Youngberg does not require the government to indicate the thought process for the person who made the decision.

[00:28:13] Speaker 01:
And I would say with a categorical policy, it's incredibly important not to require that because a prisoner or a civil committee

[00:28:20] Speaker 01:
could challenge a policy that had been drafted 20 years earlier, and to require the government to get back to what the individual who's making that decision was thinking makes little sense.

[00:28:31] Speaker 03:
Okay, I take your point, but even on your terms then, wouldn't it make sense to assume that a hospital administrator, as opposed to the head of DOC or a doctor, was taking account of both medical and security concerns?

[00:28:47] Speaker 03:
Well, I think what this court needs to find that we would look at professional judge professional standards for both.

[00:28:54] Speaker 01:
I don't think that's right.

[00:28:55] Speaker 01:
And I'm going to explain to you why for the constitutional standards for most, especially for due process concerns.

[00:29:02] Speaker 01:
The question is whether the government had a legitimate reason to impose the restriction.

[00:29:10] Speaker 01:
So the question is, what is the reason proffered by the government in litigation?

[00:29:15] Speaker 01:
It's not what were the reasons at issue?

[00:29:17] Speaker 01:
What other factors could be at play?

[00:29:19] Speaker 01:
The question is, what is the government's justification for doing this at litigation?

[00:29:24] Speaker 01:
And then that is tested.

[00:29:26] Speaker 01:
by looking at whether it satisfies whatever level of heightened scrutiny in this one, it has to do without the professional judgment or whether it's reasonably related under bell, whether it greatly exceeds professional norms.

[00:29:36] Speaker 01:
Those are how you test whether that is in fact the reason or whether in fact that's a pretext for some sort of punitive nature.

[00:29:45] Speaker 01:
So, but even all of that aside, the district presented expert testimony from somebody who served as

[00:29:55] Speaker 01:
a associate warden for the Bureau of Prisons, which, as I pointed out again, has exactly the same policy.

[00:30:02] Speaker 01:
And he explained that the security-based considerations always trump the medical considerations when you're dealing with a lockdown facility like this.

[00:30:11] Speaker 01:
I also would refer this court to Cameron.

[00:30:14] Speaker 01:
It's a decision cited in my brief from the First Circuit that says that administrators are not bound to do what the doctors say is best, even if the doctors are unanimous in that regard.

[00:30:24] Speaker 01:
And that case says in matters of security, the administrator's discretion is at its zenith.

[00:30:29] Speaker 04:
Let me ask you about your response that this was the Marshall service who did this.

[00:30:36] Speaker 04:
Are you saying that somehow the hospital, which abrogated or turned over the security decisions to the Department of Corrections, which then turned it over to the US Marshall

[00:30:55] Speaker 04:
once I think the courthouse is entered, that that's something that you're not responsible for?

[00:31:02] Speaker 01:
Yes, absolutely.

[00:31:04] Speaker 01:
The District of Columbia is not allowed to maintain custody over prisoners inside the courthouse.

[00:31:11] Speaker 04:
And the district was in, again, this was not- Well, I'm talking about, I'm not talking about the Department of Corrections as much as St.

[00:31:18] Speaker 04:
Elizabeth.

[00:31:19] Speaker 01:
I understand.

[00:31:19] Speaker 01:
So a couple of things.

[00:31:21] Speaker 01:
First of all, again, this is forfeited.

[00:31:23] Speaker 01:
This is not.

[00:31:23] Speaker 04:
I see both the Department of Corrections and the Marshal Service, frankly, as agents of St.

[00:31:29] Speaker 04:
Elizabeth's because it was St.

[00:31:31] Speaker 04:
Elizabeth's who gave the pro forma approval of we're going to offload all the security issues to the Corrections Office and then thought better of it when

[00:31:48] Speaker 04:
They realized that included in this, uh, dragnet were people that they themselves thought should be conditionally released.

[00:31:59] Speaker 01:
So again, the question is, is not based on the department's thinking better over the departments changing its policy.

[00:32:06] Speaker 01:
Uh, the question is whether in 2015 when this policy existed, it was constitutional.

[00:32:10] Speaker 04:
The same month that he made his motion summary judgment.

[00:32:14] Speaker 01:
Yes, they changed their policy, and I think they should be applauded for doing so.

[00:32:17] Speaker 01:
The last thing we want to do is be chilling departments from trying to create something above the floor of the Constitution.

[00:32:24] Speaker 01:
And again, that's something that Bell talks about.

[00:32:28] Speaker 01:
There was a double-bunking policy in Bell, where the plaintiffs in Bell tried to say, well, look, they've stopped double-bunking, so clearly that wasn't rationally related to a legitimate government interest.

[00:32:37] Speaker 01:
And the Supreme Court said, no, it doesn't

[00:32:40] Speaker 01:
be the best alternative to be reasonable.

[00:32:42] Speaker 01:
But that's not responsive to your question.

[00:32:43] Speaker 01:
Let me get back to your specific question about whether St.

[00:32:46] Speaker 01:
Elizabeth is responsible for the U.S.

[00:32:48] Speaker 01:
Marshals actions.

[00:32:49] Speaker 01:
This is a question if the department was going to be responsible for the U.S.

[00:32:57] Speaker 01:
Marshals actions, the department would have had to be on notice that the U.S.

[00:33:00] Speaker 01:
Marshals service was going to allow one of their

[00:33:03] Speaker 01:
Patience to be in court with his pants down and no way to hold up his pants.

[00:33:07] Speaker 01:
There's no evidence in the record This isn't even an argument that's been raised by mr. Harris let alone evidence in the record that the department was somehow on notice and Deliberately indifferent which is what the standard would be for that if that was the test the question here is whether the policy it's the policy being challenged that's what this litigation has been about whether the policy is

[00:33:27] Speaker 01:
violated the Constitution.

[00:33:29] Speaker 01:
And if this court believes that it did, this court also believes that the United States Bureau of Prison's policy for its civil committed people found not guilty by reason of insanity, who also need to be transported to court to determine whether they can be conditionally released.

[00:33:43] Speaker 01:
It's exactly the same system.

[00:33:44] Speaker 01:
This court would be holding that unconstitutional and creating a circuit split with the four circuits that have upheld the very same policy under the same.

[00:33:52] Speaker 01:
All right.

[00:33:52] Speaker 01:
Any more questions?

[00:33:54] Speaker 04:
Thank you.

[00:33:58] Speaker 04:
Spirit, why don't you take two minutes?

[00:34:13] Speaker 00:
Now, at all relevant times,

[00:34:15] Speaker 02:
Mr. Harris was a patient of the hospital until he was conditionally released.

[00:34:19] Speaker 02:
He was always going to he was going to be a patient of the hospital.

[00:34:22] Speaker 02:
And for that reason, the hospital did not exercise professional judgment under Youngberg when it subjected him to restraints.

[00:34:30] Speaker 02:
And the question at the heart of this case is what does Youngberg mean?

[00:34:34] Speaker 02:
Youngberg tells us that we need to treat individuals with mental health patients at a higher standard, and we cannot subject them to a blanket restraint policy that does not consider their level of dangerousness and their level of risk of elopement.

[00:34:50] Speaker 02:
And for that reason,

[00:34:52] Speaker 02:
The policy here is clearly unconstitutional and we are here and we agree.

[00:34:57] Speaker 02:
We are very happy that we have set a president that the policy was changed.

[00:35:01] Speaker 02:
We have a policy now that requires the hospital to conduct an individual risk assessment before subjecting them to restraints.

[00:35:09] Speaker 02:
And we are here now on behalf of Mr. Harris because he did suffer emotional damages as a result of these restraints and the constitutional violation that the hospital incurred.

[00:35:20] Speaker 04:
Do we know from the record why the hearing was continued?

[00:35:24] Speaker 04:
I believe the government asked for it to be continued.

[00:35:27] Speaker 02:
Why the hearing was continued?

[00:35:29] Speaker 04:
Yes.

[00:35:32] Speaker 02:
I don't believe that's in the record.

[00:35:34] Speaker 05:
All right.

[00:35:36] Speaker 05:
Can I get... Let me try again for a little bit of clarity on the question that Judge Tatel asked about.

[00:35:46] Speaker 05:
You say your challenge in the policy has applied to your client.

[00:35:50] Speaker 02:
We are challenging a policy that applies to non-dangerous individuals because that is directly contradictory to Youngberg, which says that you have to balance the use of restraints between the state interest.

[00:36:04] Speaker 05:
Youngberg gives deference to medical professionals, right?

[00:36:13] Speaker 02:
Qualified professionals, yes.

[00:36:15] Speaker 05:
And in this case, the nurse executive

[00:36:18] Speaker 05:
is a medical professional, right?

[00:36:21] Speaker 05:
And in this case, the nurse executive made the policy that's an issue, right?

[00:36:28] Speaker 05:
So under Youngberg, shouldn't we defer to the nurse executive's expertise when the nurse executive made this policy?

[00:36:38] Speaker 02:
Not if it's substantially departs from professional judgment standards.

[00:36:42] Speaker 02:
So the very act of executing a policy.

[00:36:45] Speaker 05:
So that's the case, right?

[00:36:46] Speaker 05:
If we decide that

[00:36:48] Speaker 05:
the nurse executives policy did not depart from professional standards, then you did not depart professional standards, then you would lose the case, correct?

[00:37:06] Speaker 02:
Well, even under, well,

[00:37:10] Speaker 02:
But the very act of restraining an individual who is not dangerous is not constitutional.

[00:37:18] Speaker 05:
That is not an exercise.

[00:37:20] Speaker 05:
It seems like you're slipping into the individual decision to restrain this particular person.

[00:37:27] Speaker 05:
So are you raising a challenge to the individual decision to restrain this particular individual?

[00:37:33] Speaker 05:
No, no, you're raising a challenge to the policy.

[00:37:38] Speaker 02:
A policy that restraints non-dangerous individuals.

[00:37:42] Speaker 02:
And I encourage you to look at UC versus the commissioner, because that is a perfect example of a blanket restraint policy that was an exercise of professional judgment.

[00:37:51] Speaker 05:
But there's a little bit of question begging when you say the policy is to restrain non-dangerous individuals.

[00:37:57] Speaker 05:
How do we know that they're not dangerous?

[00:38:01] Speaker 05:
And you have an argument for why your client was not dangerous, but then that slips into

[00:38:06] Speaker 05:
a kind of one-off individual decision.

[00:38:10] Speaker 02:
But the idea of not knowing whether a patient is dangerous and then subjecting them to restraints is completely contradictory to Youngberg.

[00:38:22] Speaker 02:
You cannot restrain an individual, a patient with mental health issues who is

[00:38:27] Speaker 02:
not just blanket, categorically restrain all individuals without knowing whether they pose a risk of elopement or danger.

[00:38:34] Speaker 02:
And that's because restraints have very traumatizing effects on patients and they impose a risk of impeding their mental recovery, which is directly inconsistent with the very purpose of their confinement, which is treatment.

[00:38:47] Speaker 03:
What's your response to government council's argument that if we ruled for you, we would be

[00:38:55] Speaker 03:
also ruling that the Bureau of Corrections, the US Bureau of Corrections Bureau of Prisons policy is unconstitutional.

[00:39:05] Speaker 02:
That's completely incorrect.

[00:39:06] Speaker 03:
Well, tell me why.

[00:39:07] Speaker 03:
I thought you might say that, but why?

[00:39:11] Speaker 02:
Because the direction of correctional policy applies to inmates and they introduce evidence from a from a former corrections officer who has no experience transporting NGRI patients

[00:39:24] Speaker 02:
The standards that they provided only applied to inmates.

[00:39:28] Speaker 02:
Here we have a patient.

[00:39:30] Speaker 02:
We have a patient from St.

[00:39:32] Speaker 02:
Elizabeth's Hospital, and the relevant standard was offered by Dr. Wasser, who specifically balanced whether the state's

[00:39:40] Speaker 02:
whether the state duty to ensure safety was properly balanced against the individual interests.

[00:39:47] Speaker 02:
And he found that this was not an exercise of professional judgment because it unduly weighed in favor of security concerns.

[00:39:57] Speaker 04:
Following up on what Judge Walker asked you, we presume that this nurse executive, we give deference to her decision that

[00:40:11] Speaker 04:
applying restraints to every resident of St.

[00:40:15] Speaker 04:
Elizabeth's who is transported to court, comports with phenological medical treatment.

[00:40:26] Speaker 04:
You have Dr. Wasser on the other side saying this doesn't comport.

[00:40:32] Speaker 04:
So even giving the nurse executive the presumption, isn't this a jury question?

[00:40:39] Speaker 04:
If that's the way to look at it, in other words, we've got St.

[00:40:42] Speaker 04:
Elizabeth's nurse executive resumed to be making a correct decision, and you've got another expert saying, not in a million years was this a correct decision.

[00:40:55] Speaker 04:
We have to have individualized assessment.

[00:40:57] Speaker 02:
That's exactly why Youngbird gave us two factors to satisfy the professional judgment standard.

[00:41:02] Speaker 02:
First is the decision of a qualified professional presumed valid.

[00:41:07] Speaker 02:
Second, does that decision substantially depart from professional judgment standards?

[00:41:11] Speaker 02:
It does not all rest on the fact that the chief nurse executive executed this policy.

[00:41:17] Speaker 02:
We now have to decide whether that decision comports with professional judgment standards.

[00:41:22] Speaker 02:
And to have policy, to allow patients

[00:41:27] Speaker 02:
to go off campus, off the hospital grounds, unsupervised, unrestrained, but then subject them to restraints, it's not an exercise of professional judgment here.

[00:41:37] Speaker 05:
You do not have an expert testify who is an expert on public safety and security, correct?

[00:41:47] Speaker 02:
Well, Dr. Wasser specifically weighed whether, because he's a chief medical officer and he has experience with NRI patients,

[00:41:55] Speaker 02:
He specifically said that you do have to consider the safety concerns that a patient like Mr. Harris poses, but you have to balance that against his individual interests and the needs of the patient.

[00:42:07] Speaker 05:
But he disclaimed the notion that his opinion on whether to restrain client was being informed by public safety concerns.

[00:42:26] Speaker 05:
I'm sorry.

[00:42:27] Speaker 05:
I thought the government has this quote in its brief several times.

[00:42:32] Speaker 05:
Uh, and I, to be honest, I don't have it at the tip of my fingers, but I get in about 30 seconds.

[00:42:37] Speaker 05:
Uh, and the, the, your expert is, is asked, I think repeatedly, you're, you're not an expert on public safety and your opinion is not an opinion about what's in the interest of public safety.

[00:42:52] Speaker 05:
And he says, Oh no,

[00:42:53] Speaker 05:
My opinion is not an opinion about what's in the interest of public safety.

[00:42:57] Speaker 05:
My opinion is only about the medical care of your client.

[00:43:05] Speaker 02:
So to push back, he does, but he does consider safety concerns.

[00:43:09] Speaker 02:
And I would also like to, our issue with Mr. Gravetti is he only considers whether this use of restraints is relevant in the context of restraining inmates.

[00:43:20] Speaker 02:
So,

[00:43:21] Speaker 05:
I guess, sorry to interrupt, but now it's an appendix 486 and your expert admitted he was not qualified, quote, to offer an opinion on, quote, standards for transporting inmates.

[00:43:35] Speaker 02:
Well, Mr. Harris isn't an inmate and that's why he's not qualified to offer an opinion on that.

[00:43:40] Speaker 02:
Mr. Harris is a patient.

[00:43:42] Speaker 02:
So of course he's not going to rebut the expert testimony of a corrections officer who only understands how to transport prisoners.

[00:43:49] Speaker 02:
He is here to offer expert testimony on the relevant standards for transporting an NGRI patient.

[00:43:58] Speaker 02:
And I would like to point out that Mr. Gravet, even though he's a corrections officer, specifically admitted that you have to consider professional medical judgment standards when you are transporting an NGRI patient.

[00:44:10] Speaker 03:
I want to ask you, following up on that, I want to ask you about a

[00:44:17] Speaker 03:
Piece of evidence at the district court.

[00:44:19] Speaker 03:
I'm sorry that the government relied on the district court.

[00:44:22] Speaker 03:
It's not in the joint appendix, but the government relied on it.

[00:44:26] Speaker 03:
And it's it's.

[00:44:28] Speaker 03:
A survey of the National Association of state mental health directors.

[00:44:34] Speaker 03:
You familiar with that?

[00:44:37] Speaker 02:
I am not familiar with that.

[00:44:38] Speaker 03:
Let me tell you what state mental health director.

[00:44:41] Speaker 03:
I mean that.

[00:44:42] Speaker 03:
Sounds a lot like the type of person the chief nurse.

[00:44:46] Speaker 03:
it in this case was who issued the policy.

[00:44:50] Speaker 03:
And they asked, let me just ask you what you think about what it said.

[00:44:53] Speaker 03:
Tell me, tell me what the problem is.

[00:44:56] Speaker 03:
Um, they asked, uh, they asked the, uh, the questionnaire, they asked how forensic patients are transported outside the facility and over half, over half said that they turn them over to the judicial system, just like here.

[00:45:14] Speaker 03:
So,

[00:45:15] Speaker 03:
Why isn't that pretty strong evidence that the chief nurse practitioner, the chief nurse who issued the policy here was acting on the basis of well-accepted professional judgments where people run institutions of this kind?

[00:45:32] Speaker 02:
Well, at the very least, there is a genuine dispute here as to whether the chief nurse executive executing that policy comports with professional judgment standards, and this should be put before the jury.

[00:45:47] Speaker 04:
All right, if there are no more questions, thank you.

[00:45:49] Speaker 02:
Okay, thank you, Irina.