Sterling v. Borough of Minersville

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

11-6-2000

Sterling v. Minersville

Precedential or Non-Precedential:

Docket 99-1768

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Filed November 6, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-1768

MADONNA STERLING, Executrix of the Estate of Mar cus

Anthony Wayman

v.

BOROUGH OF MINERSVILLE; F. SCOTT WILINSKY ,

POLICE OFFICER; THOMAS HOBAN, POLICE OFFICER;

JOSEPH WILINSKY, POLICE CHIEF, individually and as

police officers for the Borough of Minersville

Officer F. Scott Wilinsky and

Officer Thomas Hoban,

Appellants

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 98-cv-01857)

District Judge: Honorable Arnold C. Rapoport

Argued

July 18, 2000

Before: MANSMANN, RENDELL and STAPLETON,

Circuit Judges.

(Filed: November 6, 2000)

David Rudovsky, Esquire (Argued)

Kairys, Rudovsky, Epstein,

Messing & Rau

924 Cherry Street

5th Floor

Philadelphia, PA 19107

Counsel for Appellee

L. Rostaing Tharaud, Esquire

(Argued)

Marshall, Dennehey, Warner,

Coleman & Goggin

1845 Walnut Street

Philadelphia, PA 19103

Counsel for Appellants

Catherine Hanssens, Esq.

Lambda Legal Defense & Education

Fund

120 Wall Street

Suite 1500

New York, NY 10005

Counsel for Amicus-Appellee

OPINION OF THE COURT

MANSMANN, Circuit Judge.

This interlocutory appeal arises from a denial of the

defendants' motion for summary judgment on qualified

immunity grounds.1 At issue is whether police officers'

threat to disclose the suspected sexual orientation of an

arrestee to his family member violated the young man's

_________________________________________________________________

1. We exercise plenary review over a District Court's order granting

summary judgment on the basis of qualified immunity. The plaintiff, as

the non-moving party, is entitled to every favorable inference that can be

drawn from the record. Bartholomew v. Commonwealth of Pennsylvania,

No. 99-1755, 2000 WL 1101180 (3d Cir. Aug. 7, 2000); Sharrar v.

Felsing, 128 F.3d 810, 817 (3d Cir . 1997).

Some facts are undisputed. Where discr epancies exist, we relate the

plaintiff 's version.

2

constitutional right to privacy. We will affirm the order of

the District Court because the law is clearly established

that matters of personal intimacy are pr otected from

threats of disclosure by the right to privacy and at least one

of the officers involved was aware that his conduct was

knowingly violative of that right.

I.

On April 17, 1997, 18-year old Marcus W ayman and a

17-year old male friend were parked in a lot adjacent to a

beer distributor. The car and its occupants were observed

by the defendant police officer, F. Scott Wilinsky. Wilinsky

was concerned about previous burglaries of the beer

distributor and was suspicious of the fact that the

headlights on the car were out. Wilinsky called for back-up

and, shortly thereafter, Officer Thomas Hoban, the second

defendant, arrived at the scene.

The officers' investigation did not show any sign of a

break-in at the business, but it was appar ent to the officers

that the young men had been drinking alcohol. The boys

were also evasive when asked what they wer e doing in the

parking lot. When an eventual search uncover ed two

condoms, Wilinsky questioned whether the boys were in the

parking lot for a sexual assignation. Wilinsky testified that

both Wayman and his companion eventually acknowledged

that they were homosexuals and were in the parking lot to

engage in consensual sex, but we note that the 17-year old

denied making such admissions.

The two boys were arrested for underage drinking and

were taken to the Minersville police station. At the station,

Wilinsky lectured them that the Bible counseled against

homosexual activity. Wilinsky then war ned Wayman that if

Wayman did not inform his grandfather about his

homosexuality that Wilinsky would take it upon himself to

disclose this information. After hearing this statement,

Wayman confided to his friend that he was going to kill

himself. Upon his release from custody, W ayman committed

suicide in his home.

Wayman's mother, Madonna Sterling, as executrix of her

son's estate, filed suit under 42 U.S.C. S 1983 against the

3

Borough of Minersville, Wilinsky and Hoban, as individuals

and in their capacity as police officers, and the Chief of

Police of Minersville. The complaint alleged that the officers

and the borough violated Wayman's Fourth Amendment

right against illegal arrest, his Fourteenth Amendment

rights to privacy and equal protection and the laws and the

Constitution of the Commonwealth of Pennsylvania.

Following discovery, the defendants filed a motion for

summary judgment. The District Court denied summary

judgment on the right to privacy, state law and municipal

liability claims, but granted the motion with r espect to the

Fourth Amendment claim that the arrest of W ayman was

without probable cause. The court further ruled that the

officers were not entitled to qualified immunity since their

conduct violated Wayman's clearly established right to

privacy as protected by the Constitution.

Officers Hoban and Wilinsky filed notices of appeal

consistent with our authority to hear interlocutory appeals

on the issue of qualified immunity. Mitchell v. Forsyth, 472

U.S. 511 (1985). It is this issue alone which draws our

attention at this time.

II.

We have previously set forth the analytical framework for

deciding qualified immunity claims. First, we must

determine if the plaintiff has alleged a deprivation of a

clearly established constitutional right. Assaf v. Fields, 178

F.3d 170, 174 (3d Cir. 1999). A right is clearly established

if its outlines are sufficiently clear that a reasonable officer

would understand that his actions violate the right.

Kornegay v. Cottingham, 120 F.3d 392, 396 (3d Cir. 1997).

If a violation exists, the immunity question focuses on

whether the law is established to the extent that"the

unlawfulness of the action would have been appar ent to a

reasonable official." Assaf, 178 F .3d at 174. The status of

the right as clearly established and the reasonableness of

the official conduct are questions of law. Sharrar, 128 F.3d

at 808.

We first ask whether Wayman had a pr otected privacy

right concerning Wilinsky's thr eat to disclose his suspected

4

sexual orientation. If the right exists, we then query

whether it was clearly established at the time of its alleged

violation.

In Griswold v. Connecticut, 381 U.S. 479 (1965), the

Supreme Court first acknowledged the individual's

constitutional right to privacy. In Griswold, the Court

declared that a state law prohibiting use of contraceptives

by married couples was unconstitutional because it violated

the right to privacy as gleaned from the penumbra of rights

established by the Bill of Rights. Id. at 485-86. The

Griswold decision validated a dissent written forty years

earlier by Justice Brandeis in Olmsted v. United States, 277

U.S. 438, 478 (1928), which described the privacy right as

"the right to be let alone -- the most compr ehensive of

rights and the right most valued by civilized men. T o

protect that right, every unjustifiable intrusion of the

government upon the privacy of an individual .. . must be

deemed a [constitutional] violation." Id. at 478 (Brandeis,

J., dissenting).

The boundaries of the right to privacy, however , have not

been clearly delineated.2 In Griswold, the majority placed

heavy emphasis on the intimate relationship of husband

and wife in deciding that personal decisions r elating to

marriage are free from unjustified government interference.

Later, however, the Court recognized that the right of

privacy inured to the individual beyond the marital state. In

Eisenstadt v. Baird, 405 U.S. 438 (1972), the Court

invalidated a Massachusetts law that made it a felony to

give anyone other than a married person contraceptive

medicines or devices. The Eisenstadt majority held that the

right to privacy is not limited to certain r elationships:

If under Griswold the distribution of contraceptives

to married persons cannot be prohibited, a ban on

distribution to unmarried persons would be equally

_________________________________________________________________

2. The privacy right has been extended to activities relating to marriage,

Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v.

Oklahoma, 316 U.S. 535, 541-42 (1942); contraception, Eisenstadt, 405

U.S. 438, 453 (1972); family relationships, Prince v. Massachusetts, 321

U.S. 158, 166 (1944); child rearing and education, Pierce v. Society of

Sisters, 268 U.S. 510 (1925).

5

impermissible. It is true that in Griswold the right of

privacy inhered in the marital relationship. Yet the

marital couple is not an independent entity with a

mind and heart of its own, but an association of two

individuals each with separate intellectual and

emotional makeup. If the right of privacy means

anything, it is the right of the individual, married or

single, to be free from unwarranted gover nmental

intrusion into matters so fundamentally affecting a

person as the decision whether to bear or beget a child.

Id. at 453 (citations omitted).

A year later in Roe v. Wade, 410 U.S. 113 (1973), the

Court observed that there is "a right of personal privacy, or

a guarantee of certain areas or zones of privacy," protected

by the Constitution. Id. at 152. This guarantee of personal

privacy, covers "only personal rights that can be deemed

`fundamental' or `implicit in the concept of ordered liberty.' "

Id. (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)).

The constitutional right to privacy was further r efined in

Whalen v. Roe, 429 U.S. 589 (1977). In Whalen, the

constitutionality of a New York statute which required that

the state be provided with a copy of pr escriptions for

certain drugs was challenged by physicians and patients.

While the statute's validity was ultimately upheld, the

Court held that the constitutional right to privacy respects

not only an individual's autonomy in intimate matters, but

also an individual's interest in avoiding divulgence of highly

personal information. Id. at 599-600. This sentiment was

reaffirmed in Nixon v. Administrator of General Services,

433 U.S. 425 (1977), wherein the Court, quoting Whalen,

429 U.S. at 599, acknowledged that "[o]ne element of

privacy has been characterized as the individual interest in

avoiding disclosure of personal matters." Nixon, 433 U.S. at

457.

We recognize that the Supreme Court has not definitively

extended the right to privacy to the confidentiality of one's

sexual orientation. Indeed, a later case gives us pause. In

Bowers v. Hardwick, 478 U.S. 186 (1986), the Supreme

Court overturned a decision of the Court of Appeals of the

Eleventh Circuit that had invalidated a Geor gia statute that

6

made consensual homosexual sodomy a criminal of fense.

The majority rejected the claim that the Constitution

confers a "federal right upon homosexuals to engage in

sodomy." Id. at 192.

While Bowers indicates that the Court is r esistant to

bestowing the protection of the Constitution on some

sexual behavior, its ruling focused on the practice of

homosexual sodomy and is not determinative of whether

the right to privacy protects an individual fr om being forced

to disclose his sexual orientation. In other wor ds, the

decision did not purport to punish homosexual status.

Such a determination would in fact be contrary to the

Court's holding in Robinson v. California , 370 U.S. 660

(1962), that the Eighth and Fourteenth Amendments forbid

punishment of status as opposed to conduct. Id. at 667. We

do not read Bowers as placing a limit on privacy protection

for the intensely personal decision of sexual pr eference.3

Our jurisprudence takes an encompassing view of

information entitled to a protected right to privacy. "The

right not to have intimate facts about one's life disclosed

without one's consent . . . is a venerable one whose

constitutional significance we have recognized." Bartnicki v.

Vopper, 200 F.3d 109, 122 (3d Cir . 1999), cert. granted, 120

S. Ct. 2716 (2000).

First, in United States v. Westinghouse Electric Corp., 638

F.2d 570 (3d Cir. 1980), we held that private medical

information is "well within the ambit of materials entitled to

_________________________________________________________________

3. In Walls v. City of Petersburg, 895 F.2d 188 (4th Cir. 1990), the Court

of Appeals for the Fourth Circuit examined the law of privacy in the

context of a police background questionnair e which asked if the

applicant ever had same sex relations. The court of appeals relied on the

Supreme Court's refusal to find in Bowers that the privacy right

protected homosexual sodomy in deciding that the question was not

repugnant to that right.

We part company with our sister court's ruling because the court,

without discussion, applied Bowers as contr olling on the issue of forced

disclosure of sexual orientation despite the fact that Bowers focused on

whether a state could constitutionally prohibit certain consensual

homosexual conduct. Neither Bowers nor Walls inform the issue before

us.

7

privacy protection," in part because it concerns intimate

facts of a personal nature. Id. at 577. We cautioned,

however, that the right is not absolute. Public health or like

public concerns may justify access to infor mation an

individual may desire to remain confidential. In examining

right to privacy claims, we, therefore, balance a possible

and responsible government interest in disclosure against

the individual's privacy interests. Id.

In Fraternal Order of Police v. City of Philadelphia, 812

F.2d 105, 110 (3d Cir. 1987), we held that questions posed

concerning medical, financial and behavioral information

relating to whether police officer applicants were capable of

working in stressful and dangerous positions did not

unconstitutionally infringe on the applicant's privacy rights,

but determined that there were inadequate safeguards on

unnecessary disclosure of the information obtained. We

observed that "[i]t would be incompatible with the concept

of privacy to permit protected infor mation . . . to be publicly

disclosed." Id. at 118. In perfor ming the necessary

balancing inquiry, we looked to the individual's privacy

expectation and concluded that "[t]he mor e intimate the

information, the more justified the expectation that it will

not be subject to public scrutiny." Id. at 112-13.

Next, in Doe v. Southeastern Pennsylvania Transportation

Authority, 72 F.3d 1133 (3d Cir. 1995), a public employee

brought a section 1983 action for violations of his right to

privacy when the employer discovered, thr ough records of

drug purchases made through the employee health

program, that the employee had AIDS. After weighing

certain factors to determine whether the disclosure

constituted an actionable invasion of privacy, we

determined that the public employer's need to access the

prescription records for purposes of monitoring the health

plan outweighed the employee's interest in keeping his drug

purchases confidential. Id. at 1143. We arrived at this

conclusion, however, only after identifying the government's

interest in the information as "genuine, legitimate and

compelling." Id. at 1141.

Most recently, in Gruenke v. Seip, No. 98-2041, 2000 WL

1183064 (3d Cir. August 21, 2000), a high school swim

team coach, suspecting that a teenage team member was

8

pregnant, required the young woman to take a pregnancy

test. The young woman and her mother filed a section 1983

action claiming inter alia that the pr egnancy test

unconstitutionally interfered with the daughter's right to

privacy regarding personal matters. W e decided that the

daughter's claim "fell squarely within the contours of the

recognized right to be free from disclosure of personal

matters as outlined in Whalen v. Roe" and held that the

fact that the coach compelled the student to take the test,

coupled with an alleged failure to take appr opriate steps to

keep the information confidential infringed the girl's right to

privacy. Id. at *9. Significant to today's matter, we

determined that this type of conduct was not objectively

reasonable under the law and could not entitle the coach to

immunity from suit. Id.

We thus carefully guard one's right to privacy against

unwarranted government intrusion. It is difficult to imagine

a more private matter than one's sexuality and a less likely

probability that the government would have a legitimate

interest in disclosure of sexual identity. 4

We can, therefore, readily conclude that Wayman's sexual

orientation was an intimate aspect of his personality

entitled to privacy protection under Whalen . The Supreme

Court, despite the Bowers decision, and our court have

clearly spoken that matters of personal intimacy ar e

safeguarded against unwarranted disclosur e.

_________________________________________________________________

4. While we have not previously confr onted whether forced disclosure of

one's sexual orientation would be protected by the right to privacy, we

agree with other courts concluding that such information is intrinsically

private. See Powell v. Scrivner, 175 F .3d 107, 111 (2d Cir. 1999) ("the

excruciatingly private and intimate nature of transsexualism, for persons

who wish to preserve privacy in the matter , is really beyond debate");

Bloch v. Ribar, 156 F.3d 673, 685 (6th Cir. 1998) (publicly revealing

information regarding sexuality and choices about sex exposes an aspect

of our lives that we regard as personal and private); Eastwood v. Dept.

of Corrections, 846 F.2d 627, 631 (10th Cir. 1998) (right to privacy "is

implicated when an individual is forced to disclose information regarding

personal sexual matters"); Thorne v. City of El Segundo, 726 F.2d 459,

468 (9th Cir. 1980) (the interest raised in the privacy of sexual

activities

is within the zone of privacy protected by the Constitution).

9

The zone of privacy, while clearly established in matters

of personal intimacy, is not absolute. If ther e is a

government interest in disclosing or uncovering one's

sexuality that is "genuine, legitimate and compelling," Doe

v. SEPTA, 72 F.3d at 1141, then this legitimate interest can

override the protections of the right to privacy. In this

instance, however, no such government interest has been

identified. Indeed, Wilinsky conceded he would have no

reason to disclose this type of sensitive infor mation.

Before we can definitely conclude that a constitutional

tort has occurred, however, we must further ask whether

Wilinsky's threat of disclosur e, rather than actual

disclosure, constituted a violation of W ayman's right to

privacy.

Cases discussing actionability of threats to violate

constitutional rights appear to follow one of two directions.

Simply put, threats accompanied by a "chilling effect" that

deny or hinder the exercise of a constitutional right have

been deemed cognizable, see e.g., Citizens Action Fund v.

City of Morgan, 154 F.3d 211, 216 (5th Cir. 1998), opinion

withdrawn on denial of rehearing, 172 F .3d 923 (5th Cir.

1999) ("threats of unconstitutionally enfor cing laws against

individuals can lead to chilling effect upon speech, silencing

voices and opinions which First Amendment was meant to

protect"); Lamar v. Steele, 693 F .2d 559, 562 (5th Cir. 1982)

(contested state action aimed at precluding plaintiff 's

participation in future litigation implicated First

Amendment's protections of free speech and right to

petition), while threats arising in constitutional contexts

without a deterrent effect could not substantiate a section

1983 claim. See e.g. Schlessinger v. Salimes, 100 F.3d 519

(7th Cir. 1996) (threat to arrest not cognizable); Balliet v.

Whitmere, 626 F. Supp. 219 (M.D. Pa. 1986), aff 'd, 800

F.2d 1130 (3d Cir. 1986) (threat to remove child from home

not a constitutional violation).

A threat to disclose implicating privacy rights does not, to

us, fit into either category. The threat of disclosure does not

have a chilling effect since the right to privacy is pervasive,

i.e., no particular action is deterred. Instead, the essence of

the right to privacy is in "avoiding disclosur e of personal

matters," Whalen, id. at 599. The threat to breach some

10

confidential aspect of one's life then is tantamount to a

violation of the privacy right because the security of one's

privacy has been compromised by the thr eat of disclosure.

Thus, Wilinsky's threat to disclose W ayman's suspected

homosexuality suffices as a violation of W ayman's

constitutionally protected privacy inter est.

III.

We next address whether Officers W ilinsky and Hoban

could reasonably believe that their conduct in regard to

Wayman was lawful in light of the established law and the

information in their possession. Hunter v. Bryant, 502 U.S.

224, 227 (1991).

A. Officer Hoban

Officer Hoban claims that he is entitled to qualified

immunity because no evidence connected him to the

questioning of Wayman, or any other action that would

constitute a violation of Wayman's constitutional rights.

An interlocutory appeal, however, does not lie from a

denial of qualified immunity when the claim is one of

factual insufficiency. Behrens v. Pelletier, 516 U.S. 299, 313

(1996). Stated another way -- an "I didn't do it" argument

is not recognizable in this context. Reyes v. Sazan, 168

F.3d 158, 161 (5th Cir. 1999).

Thus, we are without jurisdiction to discuss Hoban's

qualified immunity argument.5

B. Officer Wilinsky

Similarly, we do not discuss whether Wilinsky made the

alleged statement concerning the threatened disclosure of

Wayman's homosexuality to Wayman's grandfather.6 To

reiterate, our jurisdiction to hear interlocutory qualified

_________________________________________________________________

5. Additionally, Hoban did not argue to the District Court that he is

factually remote from the allegations of the complaint.

6. The fact that Wilinsky so advised W ayman of his intent to disclose was

conceded at oral argument.

11

immunity appeals exists only to the extent that the denial

turns on an issue of law. Johnson v. Jones , 515 U.S. 304,

313 (1995). Where, however, the denial turns on the

sufficiency of the evidence, an appeal will not lie until the

District Court enters final judgment in the case. In re

Montgomery County, 215 F.3d 367 (3d Cir . 2000). Thus,

Wilinsky could not appeal the denial of qualified immunity

on the grounds he did not make the statement. Otherwise,

his appeal would suffer the same fate as Hoban's "I didn't

do it" appeal.

We turn then to whether Wilinsky should have known

that his conduct, as described by the plaintif f, violated

clearly established law. As previously discussed, by

Wilinsky's own acknowledgment, disclosur e of Wayman's

suspected homosexuality would be a matter of private

concern. Wilinsky stated that because W ayman was 18,

there was no reason for him to inter fere with Wayman's

family's awareness of his sexual orientation. In addition,

Wilinsky testified that he did not include suspicion of

homosexual activity in his police report because of the

confidential nature of the information. Obviously, then,

Wilinsky was aware that one's sexual orientation is

intrinsically personal and no compelling reason to disclose

such information was warranted. Because the confidential

and private nature of the information was obvious, and

because the right to privacy is well-settled, the concomitant

constitutional violation was apparent notwithstanding the

fact that the very action in question had not pr eviously

been held to be unlawful. See Gruenke v. Seip , 225 F.3d

290, 299 (3d Cir. 2000), quoting Anderson v. Creighton, 483

U.S. 635, 639-40 (1987). Accordingly, W ilinsky could not

reasonably have believed that his questioned conduct was

lawful in light of the established law protecting privacy

rights.7

_________________________________________________________________

7. Wilinsky offers that, as a small town police officer, his role has

parental overtones, thus, reducing the citizen's expectation of privacy

when they encounter him in an official capacity. W e mention this only to

note our disagreement with the concept that the breadth of one's

constitutional rights can somehow be diminished by demographics.

12

IV.

For the reasons stated above, we will affir m the order of

the District Court denying summary judgment on the

grounds of qualified immunity.

13

STAPLETON, Circuit Judge, dissenting:

I respectfully dissent.

In order for law to be "clearly established" for purposes of

qualified immunity, there must be pre-existing authority

which rules out the possibility that a reasonable official in

the defendant's position could have believed his conduct to

be lawful. Paff v. Kaltenbach, 204 F .3d 425, 436 (3d Cir.

2000). "This is not to say that an official action is protected

by qualified immunity unless the very action in question

has been previously held unlawful, but it is to say that in

light of pre-existing law the unlawfulness must be

apparent." See Gruenke v. Seip, 225 F.3d 290, 299 (3rd Cir.

2000), quoting Anderson v. Creighton, 483 U.S. 635, 639-40

(1987). Here, prior to the events giving rise to this case,

there was no Supreme Court case law addr essing either the

issue of whether there is a constitutionally pr otected right

of privacy in one's sexual orientation, or the issue of

whether a mere threat to disclose constitutionally protected

private information can constitute a constitutional tort. Of

the decisions of the inferior courts, only one addr essed the

former issue, Walls v. City of Petersburg, 895 F.2d 188 (4th

Cir. 1990), and it held that there is no constitutionally

protected privacy interest in one's sexual orientation. With

respect to the second issue, there was no case holding that

an unexecuted threat to disclose private infor mation can

constitute a violation of the right to privacy, and the case

law dealing with threats to violate other constitutional

rights provided no affirmative support for the proposition

that threats to violate a right of privacy wer e actionable.

Thus, it cannot be said that the unlawfulness of Officer

Wilinsky's conduct was apparent at the time it occurred. It

follows that he is entitled to qualified immunity.

Before elaborating on our differences, I note my

agreement with much that the Court has today said.

Though we have not addressed the issue befor e, I agree

that, based on the precedents of this Court, W ayman did

possess a privacy interest in his sexual orientation. Our

previous decisions in Westinghouse and FOP have

understood the right to privacy to encompass all"intimate

facts of a personal nature." See United States v.

Westinghouse, 638 F.3d 570, 577 (3d Cir. 1980); Fraternal

14

Order of Police v. City of Philadelphia, 812 F.2d 105, 112-13

(3d Cir. 1987). I think it fair to say that our society regards

a person's sexual orientation as intimate infor mation of a

personal nature and, accordingly, r ecognizes a reasonable

and legitimate expectation of privacy in that infor mation.1

The alleged action of Wilinsky primarily at issue here is

his threat to disclose private information.2 It is clear that

while Officer Wilinsky threatened to disclose Wayman's

suspected sexual orientation, he did not in fact do so. Even

so, I am in agreement with the Court that W ilinsky's threat

to disclose Wayman's suspected sexual orientation violated

the Constitution. I reach this conclusion, however, by a

different route than the Court. I believe that a threat to

disclose private information violates the constitutional right

to privacy only where, as here, an officer with no legitimate

interest in effecting disclosure makes a threat, the intended

and foreseeable effect of which is involuntary self-

disclosure.

Essentially a blackmail mechanism, Wilinsky's"tell now

or I'll tell later" threat had the for eseeable effect of forcing

disclosure by Wayman without any further action on the

part of Wilinsky. It would make little sense to condone an

officer's acts effecting disclosure simply because the victim

is made the instrument of the disclosure. It makes more

sense to examine the culpability of the conduct and ask

_________________________________________________________________

1. While I consider it a closer issue than my colleagues do, I also

ultimately reject the analysis proffered in Walls v. City of Petersburg,

895

F.2d 188, 193 (1990). Unlike the Walls court, I do not read the Supreme

Court's opinion in Bowers as intended to af fect cases arising under the

disclosure prong of Whalen. See Bowers v. Hardwick, 478 U.S. 186

(1986); Whalen v. Roe, 429 U.S. 589 (1977).

2. The argument that the questioning violated Wayman's constitutional

right to privacy is unpersuasive. As the Court's opinion notes, the two

young men were found hiding in a parked jeep on the premises of a

closed beer distributor in a high-crime area. They gave contradictory and

evasive explanations for their presence. Officer Wilinsky apparently

believed some criminal activity may have been afoot, and did not act

unreasonably by questioning the young men tofind out why they were

there. As the Court observes, if there is a legitimate governmental

interest in uncovering or disclosing a person's sexual orientation, that

interest overrides the protections of the right to privacy.

15

whether an officer completed steps reasonably designed to

effect disclosure with the intent that disclosure would

result. In short, I believe Wilinsky's threat itself was a

violation of Wayman's right to privacy because Wilinsky,

acting as a state officer, knowingly engaged in conduct

reasonably calculated to effect the involuntary disclosure of

Wayman's sexual orientation.

Thus, I agree with the Court's decision that a

constitutional violation occurred. I part ways with my

colleagues, however, on whether the unconstitutionality of

Wilinsky's conduct was clearly established by the pre-

existing case law.

First, a person's right to privacy in his or her sexual

orientation simply was not clearly established in April of

1997. Only one opinion directly addressing the issue

existed at the time of Wilinsky's conduct, and that opinion

held that no right to privacy exists in a person's sexual

orientation.3 See Walls, 895 F.2d at 193 (rejecting, on the

authority of Bowers v. Hardwick, 478 U.S. 186 (1986), the

proposition that a city employee's right to privacy was

violated by her being requiring to state whether she had

"ever had sexual relations with a person of the same sex").

With the relevant case law in this state, I am unable to

conclude that no reasonable officer in W ilinsky's position

could have believed his conduct to be consistent with the

Constitution.

_________________________________________________________________

3. I find unpersuasive the majority's citation of several other cases in

footnote four. Three of these cases wer e decided after the events at

issue

here took place. As the majority correctly notes, the applicable test

looks

to the time of the right's alleged violation. See Conn v. Gabbert, 526

U.S.

286, 290 (1999). I cannot conclude that our law was clearly established

in 1997 based upon opinions issued after that date. Thorne, the sole

remaining case, involved an inquiry into the explicit factual details of a

job applicant's sexual history and miscarriage, including the identities

of

her past sexual partners. See Thorne v. City of El Segundo, 726 F.2d

459, 462 & n.1 (9th Cir. 1980). While Thorne was decided in 1983, it

cannot be viewed as having clearly established a privacy right in a

person's sexual orientation as of 1997. The Fourth Circuit's decision in

Walls addressed the issue squar ely in 1990 and reached the opposite

conclusion based primarily on Bowers, a Supr eme Court precedent

decided three years after Thorne. Thus, the law in this area was, at best,

unclear.

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Second, I must differ with the Court when itfinds that

the right to privacy is generally infringed by thr eats to

violate that right and then concludes that this rule is

clearly established. Where, as with the rights of free

exercise and free access to the courts, the exercise of a

constitutional right requires a volitional act on the part of

the holder of the right, courts have taken the r ealistic view

that threats alone may impermissibly chill the exercise of

the right and, accordingly, may give rise to liability. Outside

the narrow confines of rights specifically protecting free

exercise or access, however, courts have held that threats

to violate constitutional rights are not generally actionable

as constitutional violations. See, e.g. Pittsley v. Warish, 927

F.2d 3, 7 (1st Cir. 1991); Emmons v. McLaughlin, 874 F.2d

351, 353 (6th Cir. 1989); King v. Olmstead County, 117

F.3d 1065, 1067 (8th Cir. 1997); Gaut v. Sunn, 810 F.2d

923, 925 (9th Cir. 1987); Collins v. Cundy, 603 F.2d 825,

827 (10th Cir. 1979). The Court cites no case in which a

threat to violate a right to privacy has been held to violate

the Constitution, and I know of none. While, as I have

indicated, I would be willing to hold that this particular

threat did violate Wayman's constitutional right to privacy

because it had the foreseeable consequence of effecting

disclosure without further action on the part of Wilinsky, I

must acknowledge that I have found no precedent

anticipating the formation of such a rule. The state of the

case law dealing with threats to violate the Constitution is

thus an independent reason for sustaining W ilinsky's

qualified immunity.

I would remand to the District Court with instructions to

dismiss the count of Sterling's claim alleging a violation of

the right to privacy.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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