dissenting in part.
I respectfully dissent from my colleagues’ decision to grant qualified immunity to the policy-making defendants, Hamblin, Snyder Spaar, and Symdon. They adopted and enforced Administrative Directive 02-10. That policy was unconstitutional as applied to someone like Wer-ner, who had reached his mandatory release date and who, through no fault of his own, was unable to find housing that satisfied both local laws and state parole officials. Pursuant to that policy, Werner spent 54 weeks in a county jail when that custody was clearly not authorized by state law. Werner was deprived of his liberty without due process of law.
This case presents an extreme version of a pervasive problem in the criminal justice system. Recidivism is a serious problem with many sex offenders. State and local governments have enacted numerous restrictions on the activities, employment, and housing of released sex offenders. Those restrictions can make it difficult, and in some cases literally impossible, for released offenders to live and work in compliance with all the laws that apply to them. See generally, e.g., Doe v. Snyder, 834 F.3d 696 (6th Cir. 2016) (describing restrictions under Michigan law). In this case, the problem was housing. Brown County, Wisconsin, had, we are told, about fourteen separate ordinances restricting released sex offenders.
For more than a year neither Werner nor anyone helping him could find lawful and suitable housing for him. Werner was kept in custody pursuant to the policy that the defendants adopted and enforced. That policy was unconstitutional and contrary to state law even when it was issued in 2002.
To extend qualified immunity to these defendants, though, the majority errs by relying upon a more recent decision by the Wisconsin Supreme Court, State ex rel. Riesch v. Schwarz, 278 Wis.2d 24, 692 N.W.2d 219 (2005). As explained below, the state court in Riesch took care to distinguish its decision from cases like Werner’s, in which offenders who reach their release dates are cooperative with efforts to supervise them.
Plaintiff Werner committed serious crimes and was punished severely for them. As a plaintiff, he is singularly unsympathetic. He earned his designation as a “Special Bulletin Notification” offender by committing multiple sex offenses against children. Both during and after the period in question here, he has repeatedly violated the law. He is now back in prison after another crime. Nevertheless, the legal issues in his case extend beyond Mr. Werner and his crimes.
Under the state law governing his conviction and punishment, when Werner reached his mandatory release date, he was entitled to be released from custody, subject to conditions of parole. As the majority opinion recounts, he was not released but was instead locked up in a county jail. He was kept in jail 148 out of 168 hours each week. The remaining 20 *767hours he was allowed to leave the jail with a chaperone to accomplish the nearly impossible job of finding housing that would comply with all the local laws applicable to convicted sex offenders and with the state’s conditions of parole. More than a year after his initial “release” to the county jail, he finally found housing that satisfied all the criteria.
Werner’s continued custody in the county jail — and “custody” is the only way to describe those 148 hours per week — was not authorized by state law or by a court judgment after due process of law. He was quite simply deprived of his liberty without due process of law. Executive branch officials are not authorized to lock people up indefinitely without prior court authorization. The ability to seek a writ of habeas corpus later does not mean the initial deprivation occurs with due process of law. And even a parolee, whose liberty is conditional and constrained, cannot have his parole revoked and his liberty taken away without due process of law. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2598, 33 L.Ed.2d 484 (1972); see also Atkins v. Chicago, 631 F.3d 823, 833-34 (7th Cir. 2011) (Hamilton, J., concurring in judgment).
I recognize that the combination of local laws in Brown County and the needs of effective parole supervision placed the defendants at all levels of the Wisconsin parole system in a tough spot. If they had faced Werner’s situation without guidance from state law, a defense of qualified immunity would have more merit. But the slate was not clean. Similar problems had arisen before. The state courts had squarely rejected the solution of keeping offenders like Werner in custody past their mandatory release dates.
First came State ex rel. Woods v. Morgan, 224 Wis.2d 534, 591 N.W.2d 922 (App. 1999). Woods was a prisoner who reached his mandatory release date. Instead of being released, he was transferred to another correctional center. Four days later, he made sexual overtures toward an inmate at that new facility, and his parole was revoked. Woods petitioned for a writ of habeas corpus. He argued that he could not have his parole properly revoked because he had never actually been paroled. The Wisconsin Court of Appeals agreed, relying on the fact that Woods had been transferred to a different state prison. He was still deemed a prisoner, not a parolee, even though he had been held past his mandatory release date. Id. at 925. In other words, continued confinement in a state prison was not authorized for a parolee. There was no indication in the record why Woods had not been released on his mandatory release date.
The next year came State ex rel. Olson v. Litscher, 233 Wis.2d 685, 608 N.W.2d 425 (App. 2000), which is the decision most instructive for this case. Like plaintiff Werner, Olson reached his release date, but he was not released because the Department of Corrections was unable to locate a suitable residence for him on parole. He was instead transferred to another state correctional facility. The court held that the State had “no authority to hold an inmate in custody beyond his or her mandatory release date, regardless of whether departmental efforts have secured a residence for the inmate.” Id. at 426. The court explained: “We realize that it is difficult for the DOC to find a neighborhood that will accept a paroled sex offender in its midst. But there is no gray area in the statute — it is crystal clear. Our job is to apply the statute as it is written. Whether or not a place has been found for an inmate, he or she must be released on his or her mandatory release date.” Id. at 427-28 (emphasis added).
As with Woods, “there was no indication that Olson had done anything to warrant continuous custody at that time.” Riesch, *768692 N.W.2d at 224 (summarizing Olson). The State even conceded that Olson had been entitled to release, and no statute or administrative rule authorized the State to detain him past that time.
Then, to bring the point even closer to this civil ease for damages, in Allen v. Guerrero, 276 Wis.2d 679, 688 N.W.2d 673 (App. 2004), another inmate was held past his mandatory release date. The State and Allen had been unable to find suitable housing for him by his mandatory release date. Correctional officials moved Allen to a minimum security prison under the supervision of parole agents. State officials twice tried to revoke this unusual form of “parole,” and twice the courts ordered his release. Allen spent all of 2000 in continuous state custody past his mandatory release date of January 4, 2000. He was not released until January 2001.
Allen then sued the state correctional officials in state court under 42 U.S.C. § 1983 alleging violation of his due process and Eighth Amendment rights. The Wisconsin Court of Appeals held not only that Allen had stated a claim for violation of his constitutional rights but that the violation was so clearly established that defendants were not entitled to qualified immunity: “We agree with Allen that Woods and Olson clearly established” that Allen was entitled to release on parole on his mandatory release date. 688 N.W.2d at 679.
The Allen court then rejected a further qualified immunity argument that is echoed in this case. The argument is that because some cases found unauthorized continued custody violated the Eighth Amendment while others found it violated the Due Process Clause of the Fourteenth Amendment, the controlling law was not “clearly established.” The Wisconsin Court of Appeals correctly found in Allen that the unlawfulness of the continued custody was clearly established in 2000 despite doctrinal arguments about whether it violated one or both amendments. The application of two basic liberties does not weaken the case. It strengthens it. The Allen court concluded, as we should, “that no reasonable public official could have believed that such continued detention was constitutionally permissible.” Id. at 681.
The qualified immunity issue presents an unusual wrinkle here. Qualified immunity doctrine often indulges in the legal fiction of assuming that official defendants are aware of applicable court decisions. Here, there was no fiction at all. The policy-making defendants issued AD 02-10 after both Woods and Olson had been decided. The policy even cited both decisions, yet purported to authorize continued custody in the teeth of those decisions.
To avoid reversing the judgment for the policy-making defendants, the majority invokes qualified immunity based on the Wisconsin Supreme Court’s 2005 decision in Riesch, 692 N.W.2d 219, or, more precisely, based on what the majority generously calls “a fairly aggressive reading” of Riesch. A qualified immunity defense is supposed to be based upon objectively reasonable interpretations of existing law. E.g., Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991); Kentucky v. Graham, 473 U.S. 159, 166-67, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); Harrell v. Cook, 169 F.3d 428, 431 (7th Cir. 1999). Using Riesch as a qualified immunity lifeline for the policy-making defendants is not objectively reasonable. The majority first overlooks the critical distinction drawn by the Riesch court itself and then attributes to the Wisconsin Supreme Court in Riesch an internal contradiction and confusion that simply are not present. In fact, Riesch expressly agreed with Woods and Olson and took care to distinguish Riesch’s case on grounds that apply directly here. It is no surprise that neither the district court nor the defendants, in their *769brief to this court or in letters to plaintiff, relied on Riesch to justify qualified immunity.
Like Werner, Riesch was a sex offender who was nearing his mandatory release date. Unlike Werner, though, Riesch did not cooperate with the release and supervision process. He announced that he would not participate in the sex offender treatment program that was required as a condition of parole. He refused to provide medical information or his signature on his fingerprint record. His behavior was such that the' assigned parole agent was unwilling to meet with him unless he were shackled, and he refused. Riesch had his parole revoked without ever actually leaving state custody. In his challenge to the revocation, he relied on Woods and Olson to argue that he had never actually been paroled, so that his parole could not be revoked and he should be released.
The Wisconsin Supreme Court affirmed the denial of relief, but on narrow grounds that distinguished both Woods and Olson on grounds that apply directly here. The Riesch court explained: “Woods and Olson are unlike the present case because the inmates in those cases did nothing to warrant their continued detention at the time of their mandatory release date. In contrast, the inmate in the Macemon cases, like Riesch, violated the conditions of his parole immediately and simultaneously with his mandatory release date.” 692 N.W.2d at 223 (emphasis added). The Riesch court went on to explain the difference with Olson:
In Olson, the inmate petitioned the court of appeals for writ of habeas corpus after he was detained past his mandatory release date. Olson had been transferred from one correctional facility to another on his release date because the DOC was unable to locate a suitable residence for him. Again [as in Woods], there was no indication that Olson had done anything to warrant the continuous custody at that time. Accordingly, the State conceded that he was entitled to release when he reached his mandatory release date and that no statute or administrative rule authorized the DOC to detain him past that point. The court of appeals agreed. Olson, 233 Wis.2d 685, ¶ 1, 608 N.W.2d 425.
692 N.W.2d at 224. The Riesch court continued: “Unlike the inmates in Woods and Olson, Riesch engaged in conduct that warranted custody at the time of his mandatory release date,” by refusing to cooperate with his social worker in arranging for a suitable residence. Id. Riesch was not entitled to relief because he had “stubbornly refused to cooperate with the department’s efforts to implement a suitable supervision plan,” and he was “totally rejecting actiye supervision.” Id., quoting administrative decision.
The Riesch court concluded:
In the end, we are mindful that the DOC is not free to hold inmates indefinitely for such problems as failure to find suitable housing on its part. Olson, 233 Wis.2d at 690, 608 N.W.2d 425. However, we also recognize that the DOC has substantial discretionary authority to develop the rules and conditions for release. Macemon. Where inmates violate these terms immediately and simultaneously with their scheduled mandatory release dates, the DOC should be able to maintain continuous custody, even though that person’s status changes from a prisoner serving a sentence to a parolee detained on a parole hold.
Id. at 225. The Riesch court rejected a highly formalistic rule advocated by Riesch, but it did not disagree with Woods or Olson, nor did it purport to authorize the continued custody of a parolee who was not deliberately violating the terms of his parole.
*770Yet the defendants’ policy, AD 02-10, purported to authorize exactly such continued custody. At least after Woods, Olson, and Allen, and certainly in light of the distinction drawn in Riesch, reasonable policy-making officials could not have believed that they were authorized to keep offenders like Werner in jail after their mandatory release dates. Instead, they doggedly stuck to the policy, even telling Werner that “Case law upholds the procedures” of AD 02-10, without identifying the case law. Dkt. 113-1, at 82 (Feb. 16, 2010 letter from defendant Snyder Spaar to plaintiff Werner).
The policy-making defendants should have known that AD 02-10 would result in unconstitutional deprivations of liberty in cases like Werner’s, where the parolee did not deliberately fail to comply with parole conditions. I would allow the qualified immunity defense for the local parole agents and their supervisors who had been ordered to implement AD 02-10, but we should reverse for trial on the claims against the policy-making defendants.