Lead Opinion
OPINION
The United States Immigration and Customs Enforcement agency mistakenly issued a detainer for Richard Ortega. Sent to the Louisville Metro Department of Corrections, the detainer informed the local prison authorities that the immigration agency was investigating whether Ortega, then serving a home-confinement sentence, could be removed from the United States. Based on the detainer, the department moved Ortega to a local prison. Ortega, who happened to be a United States citizen, sued, claiming due process and unreasonable seizure violations. The defendants moved to dismiss on qualified immunity grounds, and the district court granted the motions. We affirm.
I.
Ortega began serving an eleven-day sentence of home confinement for driving under the influence on March 18, 2011. Under the terms of his sentence, he had to wear an electronic monitoring device at all times. With prior approval, he could go to work, the doctor and church. .Otherwise he had to stay at home.
Soon after he began serving the sentence, the corrections department received a detainer for Ortega from federal immigration authorities. “A detainer is a request filed ... with the institution in which a prisoner is incarcerated, asking the institution either to hold the prisoner for the agency or to notify the agency when release of the prisoner is imminent.” Carchman v. Nash,
Immigration agent John Cloyd issued Ortega’s detainer after seeing his DUI conviction and after noticing that Ortega’s name and birth date resembled, though they did not exactly match, those of an unlawful alien. The detainer informed the corrections department that the immigration agency was investigating whether Ortega entered the country legally.
As a matter of policy, the local corrections department incarcerates any individual with an immigration detainer. On March 19, officers Lori Eppler and William Skaggs took Ortega to the local jail, where he remained until his release on March 22. The corrections department did not conduct its own investigátion of Ortega’s citizenship before taking him to jail. This Richard Ortega, as it turns out, is a United States citizen, subject to Kentucky’s drinking-and-driving laws but not subject to deportation under federal law.
Ortega filed this lawsuit, raising a host of constitutional claims under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents,
(On appeal, Ortega occasionally references other defendants and claims men
II.
Ortega’s appeal implicates two old qualified immunity questions: (1) Did the state and federal officials violate Ortega’s constitutional rights? (2) If so, were those rights clearly established at the time of the transfer? See Reichle v. Howards, — U.S. -,
Ortega’s appeal also implicates two new constitutional law questions: (1) Does an individual serving a sentence through home confinement have a liberty interest protected by the Due Process Clause in not being moved to a traditional prison setting? (2) Does that same individual have a right protected by the Fourth Amendment in not being moved to a traditional prison setting in the absence of probable cause?
Before turning to these questions, it may help to explain how detainers traditionally work and why in the normal course they do not violate these constitutional guarantees. Faced with limited resources, federal immigration authorities understandably pay attention to illegal immigrants who break other laws. See, e.g., U.S. Gov’t Accountability Office, GAO-12-708, Secure Communities 6-13 (2012). Using a computer database, they determine whether individuals convicted of violating other local, state and federal laws have entered the country illegally. If so, they issue a detainer to the law enforcement authority holding the individual, asking the institution to keep custody of the prisoner for the agency or to let the agency know when the prisoner is about to be released. See 8 C.F.R. § 287.7.
Federal detainers do not raise constitutional problems in the normal course. If a local prison keeps tabs on someone until his release, even if it moves him from one prison setting to another, it is difficult to see how that continued custody is any business of the Due Process Clause or for that matter the Fourth Amendment. See Sandin v. Conner,
What happens, however, in other settings? Say a State authorizes the arrest of any person, in custody or not, subject to a federal immigration detainer. See Buquer v. City of Indianapolis, No. 1:11-cv-00708-SEB,
Due Process. When an individual violates a criminal law and receives a sentence, he usually cannot be heard to complain about the deprivations of liberty that result. Although “prisoners do not shed all constitutional rights at the prison gate, ... lawful incarceration brings about the
While this line of authority works against Ortega’s claim, it does not defeat it. A transfer from home confinement to prison confinement, it seems to us, amounts to a sufficiently severe change in conditions to implicate due process. Yes, both settings involve confinement, a reality confirmed by the fact that Ortega must wear an electronic-monitoring device at all times, by the fact that he must obtain permission to leave the home and may do so only for discrete reasons and by the fact he would be prosecuted for escape if he did not comply. Ky.Rev.Stat. § 532.200(2). But the two settings of confinement still amount to significant differences in kind, not degree. A prison cot is not the same as a bed, a cell not the same as a home, from every vantage point: privacy, companionship, comfort. And the privileges available in each are worlds apart — from eating prison food in a cell to eating one’s own food at home, from working in a prison job to working in one’s current job, from attending religious services in the prison to attending one’s own church, from watching television with other inmates in a common area to watching television with one’s family and friends at home, from visiting a prison doctor to visiting one’s own doctor. See Ky.Rev.Stat. § 532.200(1). These marked disparities between individual liberty in the one setting as opposed to the other suffice to trigger due process.
What process is due will vary from setting to setting and may well turn on the notice given to the individual before he was allowed to serve a prison sentence at home. Happily for us, we need not answer these more difficult questions today. In a qualified-immunity case, a court may reject the constitutional claim on either of two grounds — either because no such constitutional right existed or because the constitutional right was not clearly established at the time of the incident. As the Supreme Court has acknowledged, lower courts are free to resolve (and it is often more efficient to resolve) qualified-immunity cases based on the second prong — that the contours of the constitutional right were not clearly established at the time. Pearson v. Callahan,
A clearly established constitutional violation requires on-point, controlling authority or a “robust consensus of cases of persuasive authority.” Ashcroft v. al-Kidd, — U.S. -,
The relevant Supreme Court precedent at the time dealt only with traditional confinement and probation or parole. See Young v. Harper,
The Sixth Circuit has not addressed an in-between case like Ortega’s either. The closest case, Ganem v. U.S. Immigration and Naturalization Serv.,
In the absence of Supreme Court or Sixth Circuit authority, Ortega points to three cases as evidence of a “robust consensus” of persuasive authority establishing a liberty interest in home confinement. In one, a probationer challenged the revocation of his probation, the first six months of which were to be served on home confinement. Paige v. Hudson,
These three cases are neither robust in their relevant analyses nor evidence of an on-point consensus. The decisions from both circuits undermine the central premise of Ortega’s claims by noting that today’s question — whether initial home confinement gives rise to a protected liberty interest — is an open one. See Gonzalez-Fuentes,
Fourth Amendment. A similar problem undermines Ortega’s Fourth Amendment claim — namely, no relevant authority existed at the time of the incident. A Fourth Amendment seizure requires “a governmental termination of freedom of movement through means intentionally applied.” Brower v. Cnty. of Inyo,
The few cases to discuss seizure claims by those already confined suggest that the “freedom of movement” and “protected liberty interest” inquiries overlap. See Resnick v. Hayes,
This open question requires a conclusion that “the contours of [a home confinee’s right against unreasonable seizures was not] sufficiently clear that a reasonable official would understand that [a transfer from home confinement to jail] violates that right.” Anderson v. Creighton,
The dissent agrees with our first assessment (that, for purposes of due process and unreasonable seizure protections, home confinement differs' materially from in-prison confinement) but not with our second' (that the right was not clearly established at the time of the relevant events). Because qualified immunity protects all but “the plainly incompetent,” Malley v. Briggs,
III.
For these reasons, we affirm.
Dissenting Opinion
dissenting.
Because I disagree with the majority’s view that Ortega did not have a “clearly established” liberty interest in home confinement, I respectfully dissent.
I address Ortega’s claims against the Louisville Metro Department of Corrections (“Metro Defendants”) and Immigration agent John Cloyd (“Cloyd”) separately-
Metro Defendants
The facts of this case are such that the unlawfulness of Metro Defendants’ conduct is readily apparent, even in the absence of
“[Ojutrageous conduct will obviously be unconstitutional” without regard to precedent because “the easiest cases don’t even arise.” Safford Unified Sch. Dist. No. 1 v. Redding,557 U.S. 364 ,. 377,129 S.Ct. 2633 ,174 L.Ed.2d 354 (2009) (brackets and internal quotation marks omitted). And even in eases involving less than outrageous conduct, “officials can still be on notice that their conduct violates established law in novel factual circumstances.” Id. at 377-78,129 S.Ct. 2633 (ellipses and internal quotation marks omitted).
Quigley v. Tuong Vinh Thai,
Not only should the officers have known that removing someone from their home and taking them to jail requires a certain minimum level of process, but in my view, the relevant case law clearly establishes that criminal defendants have a constitutional due process right to remain in home confinement.
Confinement in the home is inherently different from confinement in jail. The majority concedes this point, holding that the distinction between the two settings of confinement amounts to a “difference[ ] in kind, not degree.” Indeed, the terms of Ortega’s plea agreement provided that Ortega would serve his sentence through Kentucky’s Home Incarceration Program, a creation of Kentucky law. Under the program, Ortega was allowed to eat foods of his choice, sleep in his own bed, report to work, and attend religious services each day. As the majority correctly points out, “[tjhese marked disparities between the liberty in the one setting as opposed to the other suffice to trigger due process.”
Nevertheless, the majority dismisses Ortega’s claims based on the second prong of the qualified immunity test, holding that “no controlling authority or consensus of persuasive authority established that Ortega had a liberty interest in remaining on home confinement.” This conclusion is untenable. Clearly established rights include not only those specifically adjudicated, but also those that are established by general applications of core constitutional principles. See, e.g., Quigley,
Here, the core constitutional principle— that an officer must provide some process before seizing an individual from his home and taking him to jail — is unquestionably enshrined in our case law. Admittedly, the Supreme Court and this Court have only explained this principle in the probation and parole contexts. See, e.g., Young v. Harper,
The majority’s cursory dismissal of analogous cases from the First and Seventh Circuits, see Gonzalez-Fuentes v. Molina,
The majority’s holding allows an officer to blatantly violate the Fourth, Fifth, and Fourteenth Amendment rights of an American citizen — so long as it was done in a manner that neither this Court nor the Supreme Court has directly opined on before — with impunity. This cannot be the intent of the qualified immunity doctrine.
ICE Defendant Cloyd
Although the majority fails to distinguish between Ortega’s claims against Metro Defendants and ICE Agent Cloyd, the facts of this case call for a separate analysis as to each Defendant’s liability.
It is undisputed that Cloyd improperly issued a detainer against Ortega. It is also undisputed that Cloyd’s actions were a proximate and but-for cause of Ortega’s removal from home confinement and subsequent incarceration. Having established that Ortega had a clearly established liberty interest in remaining in home confinement, Cloyd may be liable for violating Ortega’s rights. See Powers v. Hamilton Cnty. Public Defender Com’n,
A complaint may only be dismissed “if it is clear that no violation of a clearly established constitutional right could be found under any set of facts that could be proven consistent with the allegations or pleadings.” Jackson v. Schultz,
Ortega alleges that Cloyd improperly issued an immigration detainer against him, despite the fact that he was an American-born United States citizen. Cloyd argues that this erroneous issuance of the detainer was due to the fact that Ortega had a similar, but not identical name and birth date as an individual who had previously been deported. The district court referred to this as “an unfortunate but honest mistake.” R. 48 at 343. But the district court could not possibly have assessed the reasonableness of Cloyd’s error because the detainer was not part of the record at the motion to dismiss stage. There is simply no way to know how similar the names and birth dates of the two
Moreover, even taking Cloyd’s argument on its face, it is unclear what relationship — beyond a shared ethnic background — Ortega had with an individual who had already been removed from the country. To allow ICE to issue a detainer against an American citizen, with unlimited discretion and without any accountability, sets a dangerous precedent and offends any and all notions of due process. Because a reasonable factfinder could conclude, after carefully evaluating the detain-er, that Cloyd intentionally and improperly issued the detainer against Ortega, I believe dismissal was improper.
For the foregoing reasons, I do not agree that the claims against either of the defendants should have been dismissed. I dissent.
Notes
. We note further that in 2011, the Eastern District of Pennsylvania evaluated the above-cited cases and decided the precise question in this case in the affirmative, holding that "the Fourteenth Amendment demands some minimal process before a state actor takes someone who is set to serve his sentence at home, on electronic monitoring, and instead puts him in prison or another form of ‘institutional confinement.' ” McBride v. Cahoone,