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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 93-2125
(CA-92-675-N)
Carol L. Pinder, etc.,
Plaintiff - Appellee,
versus
Donald Johnson, PFC, etc.,
Defendant - Appellant.
O R D E R
The Court amends its opinion filed May 30, 1995, as follows:
On page 2, section 2, line 1 -- attorney Cuzmanes' firm is corrected to read "WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, Baltimore, Maryland."
For the Court - By Direction
/s/ Bert M. Montague
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CAROL L. PINDER, Individually and
in her capacity as surviving Mother
of her minor children, deceased; and
as Personal Representative of the
Estates of Kim Pinder, LaToya and
Troy Brummel,
Plaintiff- Appellee,
v.
No. 93- 2125
DONALD JOHNSON, PFC, individually
and in his official capacity,
Defendant- Appellant,
and
COMMISSIONER OF CAMBRIDGE, in the
City of Cambridge,
Defendant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Edward S. Northrop, Senior District Judge.
(CA- 92- 675- N)
Argued: March 7, 1995
Decided: May 30, 1995
Before ERVIN, Chief Judge, RUSSELL, WIDENER, HALL,
MURNAGHAN, WILKINSON, WILKINS, NIEMEYER,
HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ,
Circuit Judges, sitting in banc.
Reversed by published opinion. Judge Wilkinson wrote an opinion, in
which Judge Hall, Judge Wilkins, Judge Niemeyer, and Judge Wil-
liams concurred, and in which Judge Widener concurred in part, and
in which Judge Motz concurred in Parts I- IV. Judge Widener wrote
an opinion concurring in part. Judge Motz wrote an opinion concur-
ring in Parts I- IV and concurring in the judgment. Judge Hamilton
wrote an opinion concurring in the judgment, in which Judge Luttig
joined. Judge Russell wrote a dissenting opinion, in which Chief
Judge Ervin, Judge Murnaghan, and Judge Michael joined.
_________________________________________________________________
COUNSEL
ARGUED: Paul T. Cuzmanes, WILSON, ELSER, MOSKOWITZ, EDELMAN
& DICKER, Baltimore, Maryland, for Appellant. Barbara Gold,
Baltimore, Maryland, for Appellee. ON BRIEF: Samuel L.
Israel, WEINBERG & GREEN, Columbia, Maryland, for Appellant.
Philip H. Gold, Baltimore, Maryland, for Appellee.
_________________________________________________________________
OPINION
WILKINSON, Circuit Judge:
We granted en banc review in this case to define the contours of
qualified immunity under 42 U.S.C. § 1983 when a plaintiff alleges
an affirmative duty on the part of a police officer to protect citizens
from the actions of a third party. The plaintiff in this action, Carol
Pinder, seeks to impose civil liability against Officer Donald Johnson
of the Cambridge, Maryland, Police Department for his failure to
safeguard her children from the criminal depredations of plaintiff's
ex- boyfriend. Pinder alleges that defendant's express promises to her
created a "special relationship," which in turn gave rise to an affirma-
tive duty to protect her under the Due Process Clause of the Four-
teenth Amendment. We hold that no such due process right to
protection was clearly established, DeShaney v. Winnebago County
Dep't of Social Servs., 489 U.S. 189 (1989), and that Officer Johnson
is thus entitled to qualified immunity.
2
I.
The facts of this case are genuinely tragic. On the evening of
March 10, 1989, Officer Johnson responded to a call reporting a
domestic disturbance at the home of Carol Pinder. When he arrived
at the scene, Johnson discovered that Pinder's former boyfriend, Don
Pittman, had broken into her home. Pinder told Officer Johnson that
when Pittman broke in, he was abusive and violent. He pushed her,
punched her, and threw various objects at her. Pittman was also
screaming and threatening both Pinder and her children, saying he
would murder them all. A neighbor, Darnell Taylor, managed to sub-
due Pittman and restrain him until the police arrived.
Officer Johnson questioned Pittman, who was hostile and unre-
sponsive. Johnson then placed Pittman under arrest. After confining
Pittman in the squad car, Johnson returned to the house to speak with
Pinder again. Pinder explained to Officer Johnson that Pittman had
threatened her in the past, and that he had just been released from
prison after being convicted of attempted arson at Pinder's residence
some ten months earlier. She was naturally afraid for herself and her
children, and wanted to know whether it would be safe for her to
return to work that evening. Officer Johnson assured her that Pittman
would be locked up overnight. He further indicated that Pinder had
to wait until the next day to swear out a warrant against Pittman
because a county commissioner would not be available to hear the
charges before morning. Based on these assurances, Pinder returned
to work.
That same evening, Johnson brought Pittman before Dorchester
County Commissioner George Ames, Jr. for an initial appearance.
Johnson only charged Pittman with trespassing and malicious destruc-
tion of property having a value of less than three hundred dollars,
both of which are misdemeanor offenses. Consequently, Ames simply
released Pittman on his own recognizance and warned him to stay
away from Pinder's home.
Pittman did not heed this warning. Upon his release, he returned to
Pinder's house and set fire to it. Pinder was still at work, but her three
children were home asleep and died of smoke inhalation. Pittman was
later arrested and charged with first degree murder. He was convicted
3
and is currently serving three life sentences without possibility of
parole.
Pinder brought this action for herself and for the estates of her three
children, seeking damages under 42 U.S.C. § 1983 and 42 U.S.C.
§ 1985, as well as state law theories, against the Commissioners of
Cambridge and Officer Johnson. She alleged, inter alia, that defen-
dants had violated their affirmative duty to protect her and her chil-
dren, thereby depriving them of their constitutional right to due
process under the Fourteenth Amendment. Defendant Johnson moved
for summary judgment, arguing that he had no constitutionally-
imposed affirmative duty to protect the Pinders and that he was
shielded from liability by the doctrine of qualified immunity. The dis-
trict court, however, refused to dismiss plaintiff's due process claim,
finding that Officer Johnson was not entitled to qualified immunity.
Defendant brought an interlocutory appeal under Mitchell v. Forsyth,
472 U.S. 511 (1985). A divided panel of this court affirmed, finding
that Pinder had stated a cognizable substantive due process claim and
that Johnson did not have a valid immunity defense. Pinder v.
Johnson, 33 F.2d 368 (4th Cir. 1994). We granted rehearing en banc,
and now reverse the judgment of the district court.
II.
The basic principles of qualified immunity are well settled. The
purpose of a qualified immunity defense under § 1983 is to limit the
deleterious effects that the risks of civil liability would otherwise have
on the operations of government. See Anderson v. Creighton, 483
U.S. 635, 638 (1987); Swanson v. Powers, 937 F.2d 965, 967 (4th Cir.
1991), cert. denied, 502 U.S. 1031 (1992). Discretionary decisions by
government actors inevitably impact the lives of private individuals,
sometimes with harmful effects. Moreover, such decisions are ines-
capably imperfect. Especially in the context of police work, decisions
must be made in an atmosphere of great uncertainty. Holding police
officers liable in hindsight for every injurious consequence of their
actions would paralyze the functions of law enforcement. Torchinsky
v. Siwinski, 942 F.2d 257, 260 (4th Cir. 1991). Qualified immunity
thus allows officials the freedom to exercise fair judgment, protecting
"all but the plainly incompetent or those who knowingly violate the
law." Malley v. Briggs, 475 U.S. 335, 341 (1986).
4
Qualified immunity under § 1983 shields officials from civil liabil-
ity unless their actions violated "clearly established statutory or con-
stitutional rights of which a reasonable person would have known."
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The linchpin of qual-
ified immunity is objective reasonableness. Anderson, 483 U.S. at
639; Rowland v. Perry, 41 F.3d 167, 172- 73 (4th Cir. 1994); Mitchell
v. Rice, 954 F.2d 187, 190 (4th Cir.), cert. denied, 113 S.Ct. 299
(1992). So long as the officer's actions, viewed from the perspective
of the officer at the time, can be seen within the range of reasonable-
ness, then no liability will attach. Slattery v. Rizzo, 939 F.2d 213, 216
(4th Cir. 1991).
Important to this reasonableness inquiry is whether the rights
alleged to have been violated were clearly established at the time of
the challenged actions. Harlow, 457 U.S. at 818. If the law supporting
the allegedly violated rights was not clearly established, then immu-
nity must lie. Anderson, 483 U.S. at 640; Tarantino v. Baker, 825
F.2d 772, 774 (4th Cir. 1987). Where the law is clearly established,
and where no reasonable officer could believe he was acting in accor-
dance with it, qualified immunity will not attach. The purpose of this
doctrine is to ensure that police officers and other government actors
have notice of the extent of constitutional restrictions on their behav-
ior. Davis v. Scherer, 468 U.S. 183, 195 (1984). Thus, qualified
immunity prevents officials from being blindsided by liability derived
from newly invented rights or new, unforeseen applications of pre-
existing rights. In short, officials cannot be held to have violated
rights of which they could not have known. Gooden v. Howard
County, 954 F.2d 960, 968 (4th Cir. 1992) (en banc).
Here, the question is simply whether the due process right Pinder
claims was clearly established at the time of her dealings with John-
son. This inquiry depends upon an assessment of the settled law at the
time, not the law as it currently exists. DiMeglio v. Haines, 45 F.3d
790, 794 (4th Cir. 1995); Akers v. Caperton, 998 F.2d 220, 227 (4th
Cir. 1993). Also, the rights Pinder asserts must have been clearly
established in a particularized and relevant sense, not merely as an
overarching entitlement to due process. Anderson, 483 U.S. at 640;
Beardsley v. Webb, 30 F.3d 524, 530 (4th Cir. 1994). It is important
not to be over- specific - - there need not be a prior case directly on
all fours with the facts presented to the official - - but "in light of the
5
pre- existing law the unlawfulness" of Johnson's conduct must have
been "apparent." Anderson, 483 U.S. at 640.
III.
Pinder can point to no clearly established law supporting her claim
at the time of the alleged violation. Pinder's claim is that Officer
Johnson deprived her and her children of their due process rights by
failing to protect them from the violent actions of Pittman. Eighteen
days before the events giving rise to this action, the Supreme Court
handed down its decision in DeShaney v. Winnebago County Depart-
ment of Social Services, 489 U.S. 189 (1989), which squarely rejected
liability under 42 U.S.C. § 1983 based on an affirmative duty theory.
A.
The facts in DeShaney were as poignant as those in this case.
There, the Winnebago County Department of Social Services (DSS)
received a number of reports that a young boy, Joshua DeShaney, was
being abused by his father. DeShaney, 489 U.S. at 192- 93. As this
abuse went on, several DSS workers personally observed the injuries
that had been inflicted on Joshua. They knew firsthand of the threat
to the boy's safety, yet they failed to remove him from his father's
custody or otherwise protect him from abuse. Ultimately, Joshua's
father beat him so violently that the boy suffered serious brain dam-
age. Id. at 193. Joshua's mother brought a § 1983 action on his behalf,
arguing that the County and its employees had deprived Joshua of his
liberty interests without due process by failing to provide adequate
protection against his father's violent acts. Id. at 195.
Despite natural sympathy for the plaintiff, the Court held that there
was no § 1983 liability under these circumstances. It noted that the
Due Process Clause of the Fourteenth Amendment does not require
governmental actors to affirmatively protect life, liberty, or property
against intrusion by private third parties. Id.; see also Lindsey v.
Normet, 405 U.S. 56, 74 (1972). Instead, the Due Process Clause
works only as a negative prohibition on state action. "Its purpose was
to protect the people from the State, not to ensure that the State pro-
tected them from each other." DeShaney, 489 U.S. at 196. This view
is consistent with our general conception of the Constitution as a doc-
6
ument of negative restraints, not positive entitlements. See Jackson v.
City of Joliet, 715 F.2d 1200, 1203 (7th Cir. 1983), cert. denied, 465
U.S. 1049 (1984). The DeShaney Court concluded that:
[i]f the Due Process Clause does not require the State to pro-
vide its citizens with particular protective services, it fol-
lows that the State cannot be held liable under the Clause for
injuries that could have been averted had it chosen to pro-
vide them. As a general matter, then, we conclude that a
State's failure to protect an individual against private vio-
lence simply does not constitute a violation of the Due Pro-
cess Clause.
489 U.S. at 196- 97 (footnotes omitted).
The affirmative duty of protection that the Supreme Court rejected
in DeShaney is precisely the duty Pinder relies on in this case. Josh-
ua's mother wanted the state to be held liable for its lack of action,
for merely standing by when it could have acted to prevent a tragedy.
Likewise, Pinder argues Johnson could have, and thus should have,
acted to prevent Pittman's crimes. DeShaney makes clear, however,
that no affirmative duty was clearly established in these circum-
stances.
B.
The DeShaney Court did indicate that an affirmative duty to protect
may arise when the state restrains persons from acting on their own
behalf. Id. at 199- 200; see also Revere v. Massachusetts General
Hospital, 463 U.S. 239, 244 (1983); Youngberg v. Romero, 457 U.S.
307, 317 (1982). The Court explained that "when the State by the
affirmative exercise of its power so restrains an individual's liberty
that it renders him unable to care for himself, and at the same time
fails to provide for his basic human needs . . . it transgresses the sub-
stantive limits on state action set by the Eighth Amendment and the
Due Process Clause." DeShaney, 489 U.S. at 200.
The specific source of an affirmative duty to protect, the Court
emphasized, is the custodial nature of a "special relationship."
7
DeShaney reasoned that "[t]he affirmative duty to protect arises not
from the State's knowledge of the individual's predicament or from
its expressions of intent to help him, but from the limitation which it
has imposed on his freedom to act on his own behalf." Id. Some sort
of confinement of the injured party - - incarceration, institutionaliza-
tion, or the like - - is needed to trigger the affirmative duty. Id. This
Court has consistently read DeShaney to require a custodial context
before any affirmative duty can arise under the Due Process Clause.
See, e.g., Rowland, 41 F.3d at 174- 75 (noting that when the state has
not restricted one's ability to care for oneself, the rationale for an
affirmative duty falls away); Piechowicz v. United States, 885 F.2d
1207, 1215 (4th Cir. 1989) (holding that "substantive due process pro-
tects the liberty interests only of persons affirmatively restrained by
the United States from acting on their own behalf") (emphasis added).
There was no custodial relationship with the plaintiffs in this case.
Neither Johnson nor any other state official had restrained Pinder's
freedom to act on her own behalf. Pinder was never incarcerated,
arrested, or otherwise restricted in any way. Without any such limita-
tion imposed on her liberty, DeShaney indicates Pinder was due no
affirmative constitutional duty of protection from the state, and John-
son would not be charged with liability for the criminal acts of a third
party.
C.
Pinder argues, however, that Johnson's explicit promises that Pitt-
man would be incarcerated overnight created the requisite "special
relationship." We do not agree. By requiring a custodial context as the
condition for an affirmative duty, DeShaney rejected the idea that
such a duty can arise solely from an official's awareness of a specific
risk or from promises of aid. DeShaney, 489 U.S. at 200. There, as
here, plaintiff alleged that the state knew of the special risk of harm
at the hands of a third party. Id. at 197. There, as here, plaintiff
alleged that the state had "specifically proclaimed, by word and by
deed, its intention to protect" the victim. Id. Neither allegation was
sufficient to support the existence of an affirmative duty in DeShaney,
and the same holds true in this case.
Promises do not create a special relationship - - custody does.
Unlike custody, a promise of aid does not actually place a person in
8
a dangerous position and then cut off all outside sources of assistance.
Promises from state officials can be ignored if the situation seems dire
enough, whereas custody cannot be ignored or changed by the per-
sons it affects. It is for this reason that the Supreme Court made cus-
tody the crux of the special relationship rule. Lacking the slightest
hint of a true "special relationship," Pinder's claim in this case boils
down to an insufficient allegation of a failure to act.
We also cannot accept Pinder's attempt to escape the import of
DeShaney by characterizing her claim as one of affirmative miscon-
duct by the state in "creating or enhancing" the danger, instead of an
omission. She emphasizes the "actions" that Johnson took in making
assurances, and in deciding not to charge Pittman with any serious
offense. By this measure, every representation by the police and every
failure to incarcerate would constitute "affirmative actions," giving
rise to civil liability. At some point on the spectrum between action
and inaction, the state's conduct may implicate it in the harm caused,
but no such point is reached here. It cannot be that the state "commits
an affirmative act" or "creates a danger" every time it does anything
that makes injury at the hands of a third party more likely. If so, the
state would be liable for every crime committed by the prisoners it
released. See Martinez v. California, 444 U.S. 277, 284- 85 (1980) (no
state action when released prisoner causes injury). No amount of
semantics can disguise the fact that the real "affirmative act" here was
committed by Pittman, not by Officer Johnson. As was true in
DeShaney, the state did not "create" the danger, it simply failed to
provide adequate protection from it. In both cases, "[t]he most that
can be said of the state functionaries . . . is that they stood by and did
nothing when suspicious circumstances dictated a more active role for
them." Id. at 203. Thus, like DeShaney, Pinder's case is purely an
omission claim.*
_________________________________________________________________
*Moreover, it is not strictly accurate to suggest, as Pinder does, that
"creation of risk" is a second exception to the rule of DeShaney. Rather,
"creation" of a danger implicates the alternate framework of § 1983 lia-
bility wherein a plaintiff alleges that some conduct by an officer directly
caused harm to the plaintiff. While it is true that inaction can often be
artfully recharacterized as "action," courts should resist the temptation to
inject this alternate framework into omission cases by stretching the con-
cept of "affirmative acts" beyond the context of immediate interactions
between the officer and the plaintiff.
9
Given the principles laid down by DeShaney, it can hardly be said
that Johnson was faced with a clearly established duty to protect
Pinder or her children in March of 1989. Indeed, it can be argued that
DeShaney established exactly the opposite, i.e., that no such affirma-
tive duty existed because neither Pinder nor her children were con-
fined by the state. At a minimum, Officer Johnson was not on notice
that any conduct of his was unconstitutional.
IV.
The lack of any clearly established duty to protect individuals out-
side of the custodial context is also reflected in the law in the lower
federal courts at the time of the events in question. No court had actu-
ally found a due process right to protection from third parties based
on mere assurances by state officials, while a number of decisions
directly or indirectly rejected just such a proposition. Thus, again, the
weight of authority confirms the opposite of the conclusion plaintiff
seeks to prove, and certainly cannot be said to clearly establish a due
process right like the one Pinder asserts here.
The salient issue in the lower courts both before and since
DeShaney has been whether the notion of the special relationship is
limited to the penal/institutional context or whether it can be extended
to other areas of state conduct. A number of pre- DeShaney cases were
strict in their definition of the special relationship giving rise to a
state's affirmative duty to protect, expressly linking the duty to the
fact of custody. E.g. Wideman v. Shallowford Community Hospital
Inc., 826 F.2d 1030, 1035- 36 (11th Cir. 1987) ("key concept is the
exercise of coercion, dominion, or restraint by the state"); Washington
v. District of Columbia, 802 F.2d 1478, 1481 (D.C. Cir. 1986) (duty
depends on custody); Walker v. Rowe, 791 F.2d 507, 511 (7th Cir.)
(duty depends on "constraints the state imposes on private action"),
cert. denied, 479 U.S. 994 (1986). Several courts in fact concluded
that the duty was absolutely limited to those few contexts wherein a
person's freedom to act is severely constrained by the state - - pris-
ons, mental institutions, and the like. See, e.g., Harpole v. Arkansas
Dep't. of Human Servs., 820 F.2d 923, 927 (8th Cir. 1987) (only pris-
ons); Estate of Gilmore v. Buckley, 787 F.2d 714, 722 (1st Cir.) (only
those in actual custody or control), cert. denied, 479 U.S. 882 (1986).
See also McLenagan v. Karnes, 27 F.3d 1002, 1008 n.9 (4th Cir.
10
1994), cert. denied, 115 S.Ct. 581 (1994); Walton v. City of
Southfield, 995 F.2d 1331, 1337 (6th Cir. 1993); Hilliard v. City and
County of Denver, 930 F.2d 1516, 1520 (10th Cir. 1991), cert. denied,
502 U.S. 1013 (1991); Fialkowski v. Greenwich Home for Children,
Inc., 921 F.2d 459, 465 (3d Cir. 1990); Weller v. Dep't. of Social
Servs. for Baltimore, 901 F.2d 387, 392 (4th Cir. 1990); Milburn v.
Anne Arundel County Dep't of Social Servs., 871 F.2d 474, 476 (4th
Cir.), cert. denied, 493 U.S. 850 (1989).
It is true, as the district court noted, that some cases found an
"affirmative duty" arising outside the traditional custodial context.
See Pinder v. Commissioners of Cambridge, 821 F. Supp. 376,
388- 89 (D. Md. 1993) (collecting cases). None of these cases, how-
ever, clearly establish the existence of the right Pinder alleges was
violated. First, none of these cases found a particularized due process
right to affirmative protection based solely on an official's assurances
that the danger posed by a third party will be eliminated. All involved
some circumstance wherein the state took a much larger and more
direct role in "creating" the danger itself. These cases involve a
wholly different paradigm than that presented here. When the state
itself creates the dangerous situation that resulted in a victim's injury,
the absence of a custodial relationship may not be dispositive. In such
instances, the state is not merely accused of a failure to act; it
becomes much more akin to an actor itself directly causing harm to
the injured party. See, e.g., Cornelius v. Town of Highland Lake, 880
F.2d 348, 356 (11th Cir. 1989) (duty when state brought inmates into
victim's workplace); Wells v. Walker, 852 F.2d 368, 371 (8th Cir.
1988) (duty when state brought dangerous prisoners to victim's store),
cert. denied, 489 U.S. 1012 (1989); Nishiyama v. Dickson County,
814 F.2d 277, 281 (6th Cir. 1987) (duty when state provided unsuper-
vised parolee with squad car). See also Archie v. City of Racine, 847
F.2d 1211, 1223 (7th Cir. 1988) (en banc) (court's broad definition
of when duty arises does not mention promises by official as a poten-
tial factor), cert. denied, 489 U.S. 1065 (1989). At most, these cases
stand for the proposition that state actors may not disclaim liability
when they themselves throw others to the lions. See K.H. ex rel. Mur-
phy v. Morgan, 914 F.2d 846, 849 (7th Cir. 1990). They do not, by
contrast, entitle persons who rely on promises of aid to some greater
degree of protection from lions at large.
11
Second, several of the cases on which Pinder relies were singled
out by the Supreme Court in DeShaney for their overbroad view of
special relationships. 489 U.S. at 197- 98, n.4. In particular, plaintiff
relies heavily on the opinion in Jensen v. Conrad, 747 F.2d 185 (4th
Cir. 1984), which held that a special relationship can result from 1)
legal custody; 2) express promises of protection; or 3) state knowl-
edge of the victim's plight. 747 F.2d at 194- 95 n.11. The Jensen court
believed that affirmative duties arose not because the state limited
freedom of personal action but because the state"selected an individ-
ual from the public at large and placed him in a position of danger."
Id. at 194. The DeShaney opinion cited this case, and several others
like it, as support for the plaintiff's argument that the state had an
affirmative duty because it had "actually undertaken" to protect
Joshua. 489 U.S. at 197- 98 n.4. The Supreme Court then said in no
uncertain terms, "[w]e reject this argument." Id. at 198. There can be
no doubt, therefore, that Jensen and its companion cases arguing for
a broad conception of the special relationship afford no basis for viti-
ating Johnson's immunity defense.
Finally, a number of the cases plaintiff relies upon were decided
months or years after Johnson's dealings with Pinder and so are not
relevant to our assessment of the clearly established law at the time.
See Gregory v. City of Rogers, 974 F.2d 1006 (8th Cir. 1992), cert.
denied, 113 S.Ct. 1265 (1993); Freeman v. Ferguson, 911 F.2d 52
(8th Cir. 1990); Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989),
cert. denied, 498 U.S. 938 (1990). We do not agree with Pinder that
these cases premise civil liability on official promises - - even if they
did, however, there is no way Officer Johnson could have been aware
of them. See DiMeglio, 45 F.3d at 806. Indeed, this case is a quintes-
sential example of the kind of circumstance where qualified immunity
forecloses the need for officials to guess about such future develop-
ments in constitutional law. See Swanson v. Powers, 937 F.2d at 968
(citing Lum v. Jensen, 876 F.2d 1385, 1389 (9th Cir. 1989)). The
courts have been careful not to add legal prognostication to the
already lengthy list of police officer responsibilities. "To expect
Defendants to resolve what reasonable jurists have long debated . . .
is to impose burdens and expectations well beyond their reasonable
capacities." Hodge v. Jones, 31 F.3d 157, 167 (4th Cir. 1994), cert.
denied, 115 S.Ct. 581 (1994).
12
The extensive debate provoked by this case should be proof enough
that the law in this area was anything but clearly established at the
time Officer Johnson gave assurances to Pinder. See Stoneking v.
Bradford Area School Dist., 882 F.2d 720, 724 (3d Cir. 1989)
(Stoneking II) (declining to rest decision on an affirmative duty
because of "the uncertainty of the law in this respect"), cert. denied,
493 U.S. 1044 (1990). To impose liability in the absence of a clearly
established constitutional duty is to invite litigation over a limitless
array of official acts.
V.
The recitation of the case law that defeats Pinder's claim cannot be
divorced from the rationale underlying it. There are good reasons why
the constitutional right to protection sought by Pinder was not clearly
established by the courts. As the First Circuit noted in a similar case,
"[e]normous economic consequences could follow from the reading
of the Fourteenth Amendment that plaintiff here urges." Estate of
Gilmore, 787 F.2d at 722. The consequences, however, are not just
economic, and their gravity indicates why the right Pinder asserts was
never clearly established.
The recognition of a broad constitutional right to affirmative pro-
tection from the state would be the first step down the slippery slope
of liability. Such a right potentially would be implicated in nearly
every instance where a private actor inflicts injuries that the state
could have prevented. See id. at 723. Every time a police officer
incorrectly decided it was not necessary to intervene in a domestic
dispute, the victims of the ensuing violence could bring a § 1983
action. Every time a parolee committed a criminal act, the victims
could argue the state had an affirmative duty to keep the prisoner
incarcerated. Indeed, victims of virtually every crime could plausibly
argue that if the authorities had done their job, they would not have
suffered their loss. Broad affirmative duties thus provide a fertile bed
for § 1983 litigation, and the resultant governmental liability would
wholly defeat the purposes of qualified immunity.
If the right Pinder asserts were ever clearly established, it would
entail other significant consequences. A general obligation of the state
to protect private citizens, whether broadly or narrowly conceived,
13
effectively makes law enforcement officials constitutional guarantors
of the conduct of others. Such a system would engender a variety of
perverse incentives. Local officials faced with ambiguous circum-
stances would be forced to inject themselves into private affairs to
foreclose the complaint that they should have done more. Rather than
let a suspect go free, the temptation would be to make a premature
arrest to forestall civil liability. In the same way, if promises could
override a qualified immunity defense, police would quickly learn
never to reassure, even in situations where such assurances might be
the best course of action.
It is no solution to say that such a right to affirmative protection
has its inherent limitations. It is no answer to contend that the duty
here was created only by Johnson's promise and Pinder's reliance on
that promise, and is limited by Johnson's awareness of the risk. Such
"limitations" are no barrier to increased lawsuits. There are endless
opportunities for disagreements over the exact nature of an official's
promise, the intent behind it, the degree of the reliance, the causal link
between the promise and the injury, and so on. Similarly, the extent
of the state's affirmative duty to protect and the degree of the state's
awareness of the risk are also subjects that would tie up state and
local officials in endless federal litigation.
The Supreme Court has reacted to the specter of such extensive
local liability by removing categories of claims from the scope of due
process recovery. Liability for simple negligence is one such cate-
gory. Daniels v. Williams, 474 U.S. 327 (1986). Claims based on only
reputational harm are a second example. Paul v. Davis, 424 U.S. 693,
702 (1976). Claims involving omissions, or the failure to protect, are
a third area held to be non- actionable. DeShaney, 489 U.S. at 202.
Pinder's claims notwithstanding, it makes sense to see DeShaney as
a bright- line decision, in which the Court saw in the admittedly sym-
pathetic case the first step on a long, litigious journey.
In cases like this, it is always easy to second- guess. Tragic circum-
stances only sharpen our hindsight, and it is tempting to express our
sense of outrage at the failure of Officer Johnson to protect Pinder's
children from Pittman's villainy. The Supreme Court in DeShaney
specifically rejected the "shocks the conscience" test of Rochin v.
California, 342 U.S. 165, 172 (1952) as a basis for imposing § 1983
14
liability in the affirmative duty context, however. DeShaney, 489 U.S.
at 197- 98. We cannot simply ignore the lack of any clearly estab-
lished constitutional duty to protect and the concomitant immunity
from civil liability. Hard cases can make bad law, and it is to protect
against that possibility that police officers possess the defense of qual-
ified immunity.
VI.
For the foregoing reasons, the judgment of the district court deny-
ing qualified immunity to Officer Johnson is
REVERSED.
WIDENER, Circuit Judge, concurring in part:
I concur in the result and in all of the opinion except those three
sentences commencing with the word "These," the eighteenth line of
page 11, and ending with the word "party," the twenty- fourth line of
page 11, with which statement I do not agree.
MOTZ, Circuit Judge, concurring in parts I- IV of the majority opin-
ion and in the judgment:
I concur in the result reached in the majority opinion and admire
its felicity of expression. I write separately to make it clear that its
sole holding is that Officer Johnson was entitled to summary judg-
ment on his qualified immunity defense. This is so because when this
tragedy occurred in 1989, in view of DeShaney v. Winnebago Dept.
of Social Servs., 489 U.S. 189 (1989), a reasonable police officer
could not have known that Officer Johnson's promise to Ms. Pinder
created a special relationship making him liable to her. Thus, any sug-
gestion in part V of the majority opinion that, even today, there is not
and, as a matter of policy, should not be any "broad constitutional
right to affirmative protection from the state" is dicta and, in my view,
erroneous dicta.
HAMILTON, Circuit Judge, concurring in the judgment:
This appeal involves a straightforward question of qualified immu-
nity: whether, at the time of Officer Johnson's conduct, his actions
15
violated "clearly established statutory or constitutional rights of which
a reasonable person would have known." Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). In light of the Supreme Court's decision in
DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189
(1989) and cases which held that a state's affirmative duty to protect
could arise only in a custodial situation, see, e.g., Harpole v. Arkansas
Dep't of Human Servs., 820 F.2d 923, 927 (8th Cir. 1987); Estate of
Gilmore v. Buckley, 787 F.2d 714, 722 (1st Cir.), cert. denied, 479
U.S. 882 (1986), a reasonable officer would not have known that
Johnson's personal assurances to Pinder and subsequent actions with
respect to Pittman would violate Pinder's due process rights. For this
reason, the judgment of the district court should be reversed.
Judge Luttig joins this separate opinion concurring in the judgment.
RUSSELL, Circuit Judge, dissenting:
"No amount of semantics," the Court concludes today, "can dis-
guise the fact that the real `affirmative act' here was committed by
Pittman, not by Officer Johnson. As was true in DeShaney, the state
did not `create' the danger, it simply failed to provide adequate pro-
tection from it." Because I believe the Court casually disregards the
very real ways in which Officer Johnson's conduct placed Pinder and
her children in a position of danger, I respectfully dissent.
In March 1989, the time of the fire, the law "clearly established"
that the state has a duty to protect an individual where the state, by
its affirmative action, creates a dangerous situation or renders an indi-
vidual more vulnerable to danger. As the Seventh Circuit stated in
Bowers v. DeVito, 686 F.2d 616 (7th Cir. 1982):
If the state puts a man in a position of danger from private
persons and then fails to protect him, it will not be heard to
say that its role was merely passive; it is as much an active
tortfeasor as if it had thrown him into a snake pit.
Id. at 618.
16
Since Bowers, the Seventh Circuit and other circuits, including our
own, have reaffirmed this duty. See Archie v. City of Racine, 847 F.2d
1211, 1223 (7th Cir. 1988) ("When the state puts a person in danger,
the Due Process Clause requires the state to protect him to the extent
of ameliorating the incremental risk."); Wells v. Walker, 852 F.2d
368, 370- 71 (8th Cir. 1988) (holding that the state has a duty to pro-
tect where "the state affirmatively places a particular individual in a
position of danger the individual would not otherwise have been in"),
cert. denied, 489 U.S. 1012 (1989); Ketchum v. Alameda County, 811
F.2d 1243, 1247 (9th Cir. 1987) (holding that in defining the "special
relationship" that gives rise to the state's duty to protect an individual
from attack by private third parties, "courts have considered . . .
whether the state has affirmatively placed the plaintiff in a position
of danger"); Escamilla v. City of Santa Ana, 796 F.2d 266, 269 (9th
Cir. 1986) ("An obligation to protect may arise when the state itself
has put a person in danger."); Jensen v. Conrad, 747 F.2d 185, 194
(4th Cir. 1984) ("[W]here the state had selected an individual from
the public at large and placed him in a position of danger, the state
was enough of an `active tortfeasor' to make it only `just' that the
state be charged with an affirmative duty of protection."), cert.
denied, 470 U.S. 1052 (1985).*
The Supreme Court's decision in DeShaney v. Winnebago County
Department of Social Services, 489 U.S. 189 (1989), did not reject the
state's clearly established duty to protect an individual where the
state, through its affirmative action, has created a dangerous situation
_________________________________________________________________
*The majority opinion argues that Jensen is no longer good law in
light of DeShaney v. Winnebago County Department of Social Services,
489 U.S. 189 (1989). The Jensen Court indicated in a footnote that a
"special relationship" may exist where the state has expressly promised
to provide affirmative protection or where the state has knowledge of the
victim's plight. 747 F.2d at 194- 95, n.11. As the majority opinion notes,
the Supreme Court in DeShaney rejected the position that a special rela-
tionship arises, giving rise to an affirmative duty to provide protection,
where "the State learns that a third party poses a special danger to an
identified victim, and indicates its willingness to protect the victim
against that danger." 489 U.S. at 198 & n.4. Nonetheless, I cite Jensen
for the proposition that the state has an affirmative duty to provide pro-
tection where the state has placed an individual in a position of danger.
Jensen is still good law on this point.
17
or rendered the individual more vulnerable to danger. In DeShaney,
the Supreme Court held only that the state has no duty to protect an
individual from the actions of third parties where the state was aware
of the dangers but played no part in their creation. Id. at 201. The fact
that the state did not create the danger was central to the Court's hold-
ing.
In this case, Officer Johnson was not merely aware of the danger;
he placed Pinder and her children in a position of danger. Officer
Johnson knew that Pittman had broken into Pinder's home and had
been abusive and violent. Pittman had punched Pinder and thrown
objects at her. When the officers arrived at the scene, Pittman was
screaming and threatening that he "wasn't going to jail for nothing
this time; this time it would be for murder." After the officers
restrained Pittman, Pinder explained to Officer Johnson that Pittman
had threatened Pinder before, that he had attempted to set fire to her
house ten months earlier, and that he had just finished serving his sen-
tence for the attempted arson. Given Pittman's threats and violent
behavior, Pinder was understandably concerned about the safety of
herself and her children. She explained to Officer Johnson that she
needed to return to work and specifically asked him whether it was
safe to do so. Officer Johnson assured Pinder several times that Pitt-
man would remain in police custody until morning. Officer Johnson
indicated to Pinder that Pittman could not be released that night
because a county commissioner would not be available until the
morning. Instead of remaining home with her children or making
other arrangements for their safety, Pinder, relying on Officer John-
son's assurances, returned to work, leaving her children alone at
home. At the police station, Officer Johnson charged Pittman only
with two minor offenses, trespassing and malicious destruction of
property having a value of less than three hundred dollars. Despite his
previous representation to Pinder that no county commissioner would
be available before the morning, Officer Johnson brought Pittman
before a county commissioner that evening. Because Officer Johnson
charged Pittman only with two misdemeanors, the county commis-
sioner released Pittman on his own recognizance. Upon his release,
Pittman went directly to Pinder's house and burned it down, killing
the three children in the conflagration.
I cannot understand how the majority can recount these same
events in its own opinion and not conclude that Officer Johnson
18
placed Pinder and her children in a position of danger. Officer John-
son made assurances to Pinder that Pittman would remain in police
custody overnight and falsely represented that no county commis-
sioner would be available until morning. He induced Pinder to return
to work and leave her children vulnerable to Pittman's violence. After
witnessing Pittman's violent behavior and murderous threats, he
charged Pittman with only minor offenses, assuring his release. Offi-
cer Johnson had a duty to protect Pinder and her children from Pitt-
man, at least to an extent necessary to dispel the false sense of
security that his actions created.
Unlike the majority, I believe that the law at the time of the inci-
dent clearly established that Officer Johnson had a duty to protect
Pinder and her children upon Pittman's release. The Court finds it sig-
nificant that no case before March 1989 contained the precise holding
that due process creates a duty of affirmative protection based on an
official's assurances that the danger posed by a third party will be
eliminated. Such a particular holding, however, is not required in
order to conclude that a right was clearly established.
In Anderson v. Creighton, 483 U.S. 635 (1987), the Supreme Court
recognized that the operation of the qualified immunity standard
depended upon the level of generality at which the law is clearly
established. At the most general level, we could conclude that Officer
Johnson violated Pinder's clearly established right to due process. The
Supreme Court recognized, however, that a state official could never
assert the defense of qualified immunity if the test of "clearly estab-
lished law" were applied at that level of generality. Id. at 639. The
Supreme Court explained that "[t]he contours of the right must be suf-
ficiently clear that a reasonable official would understand that what
he is doing violated that right." Id. at 640.
On the other hand, the Court also rejected the view that "an official
action is protected by qualified immunity unless the very action in
question has previously been held unlawful . . . ." Id. Requiring such
a level of specificity would transform the defense of qualified immu-
nity into a defense of absolute immunity. Instead, the Court held that
the preexisting law had to be only specific enough that the unlawful-
ness of the official's conduct would be apparent to a reasonable per-
son. See id.; see also Pritchett v. Alford, 973 F.2d 307, 314 (4th Cir.
19
1992) ("The fact that an exact right allegedly violated has not earlier
been specifically recognized by any court does not prevent a determi-
nation that it was nevertheless `clearly established' for qualified
immunity purposes.").
I believe that a reasonable officer in Officer Johnson's position
would have recognized that, given his assurances to Pinder that Pitt-
man would remain in police custody until morning and his failure to
charge Pittman with an offense serious enough to ensure that he
remained in custody overnight, he placed Pinder and her children in
a dangerous position. He induced Pinder to let her guard down, dis-
suading her from taking actions to protect herself and her children
from Pittman. Certainly, a reasonable officer would have recognized
that he had a duty at least to phone Pinder and warn her that Pittman
had been released from police custody.
Pinder's children were left alone at home, vulnerable to the ram-
page of a violent, intemperate man, and deprived of their mother's
protection because of the hollow word of an irresponsible, thoughtless
police officer. Today the Court holds that this police officer, who took
no action to correct a dangerous situation of his own creation, did not
violate Pinder's due process rights and is otherwise immune from
prosecution because he did not violate a clearly established right. I
disagree.
Chief Judge Ervin, Judge Murnaghan, and Judge Michael have
asked to be shown as joining in this dissenting opinion.
20
Case in RTF Format