Dolihite v. Maughon , 74 F.3d 1027 ( 1996 )

EDMONDSON, Circuit Judge, dissenting in part and concurring in the
result in part:
A great deal of today's opinion is right. I cannot concur,
however, in the decision on Karen Jurls.
In my judgment, when Ms. Jurls in 1992 acted or failed to act,
it was not already clearly established as a matter of law that the
rights, under the fourteenth amendment's due process clause, of
mental patients involuntarily civilly committed to state
institutions would always be the same as the rights, under the
eighth amendment, of convicts in prisons even if the circumstances
were otherwise similar. Therefore, I cannot agree that Ms. Jurls
(and every reasonable social worker in her place) would be expected
to know that Greason v. Kemp. 891 F.2d 829 (11th Cir. 1990) -- a
prison case decided on eighth amendment grounds -- clearly
established as a matter of law the rules governing her conduct
outside of a prison and under the fourteenth amendment.
The difference between a prison and some other kind of
institution and the difference between the eighth amendment and the
fourteenth amendment's due process clause are enough, at least, to
cloud the question. To apply Greason outside of a prison is not to
follow Greason, but to extend it. I do not believe that nonlawyers
must foresee such extensions or forfeit their immunity. To me,
this practice flies in the face of the idea that qualified immunity
protects against personal liability unless the defendant's acts
violated clearly established pre-existing law.
I know that the Supreme Court in Romeo wrote among other
things that persons civilly committed are "entitled to more
considerate treatment and conditions of confinement than criminals
whose conditions of confinement are designed to punish." But those
words are not the holding of Romeo. They explain the Romeo
decision in part: they explain why the "deliberate indifference"
standard used for prisons was not adopted for mental institutions.
But Romeo does not hold that every act that violates the eighth
amendment rights of a prisoner will doubtlessly violate the due
process rights of those involuntarily civilly committed to state
institutions. In my view, this idea is not clearly established as
a matter of law now and was not so established in 1992.
I do not say that the Supreme Court's words that I have quoted
are totally without significance; they have some value as
predictors. But, I do say the words do not establish law, in
themselves. And, by the way, this Circuit has also never held that
the due process rights of mental patients always, at least, equal
the eighth amendment rights of prisoners. Therefore, today's
court's heavy reliance on Greason -- an eighth amendment decision
-- as the case that in 1992 had already clearly established rights
outside of the eighth amendment's prison context seems too shaky.
I cannot go along.
For me, Greason, in the light of the words I have quoted from
Romeo, does suggest that courts might ultimately decide that the
law requires mental health workers outside of prisons to follow or
to exceed the eighth amendment guidelines. But, in Lassiter, we
said for precedent to suggest something about the applicable law
was just not enough.
2
We said the "pre-existing law must dictate, that is, truly
compel (not just suggest or allow or raise a question about), the
conclusion for every like-situated, reasonable government agent
that what defendant is doing violates federal law in the
circumstances." Lassiter v. Alabama A & M University, Bd. of
Trustees, 28 F.3d 1146, 1150 (11th Cir. 1994) (en banc) (emphasis
in the original).
In 1992, Greason did not (and in my view, as a matter of law,
could not) truly dictate the essential conclusion for Karen Jurls
and those like her who were working outside of prisons. I cannot
hold this social worker to a clearer understanding of the law --
particularly of the precedential authority of Greason -- than I
have.
I dissent from the result for Karen Jurls, but concur in the
result otherwise.
3
Enclosure