The opinion
WILKINSON, Circuit Judge,
dissenting:
Because the majority misapprehends the nature of qualified immunity from suit under 42 U.S.C. § 1983 , I dissent. We are all agreed that the relevant question in this case is the objective one of whether a reasonable officer could have believed his actions “to be lawful, in light of clearly established law and the information the ... officers possessed.” Anderson v. Creighton, 483 U.S. 635, 641 , 107 S.Ct. 3034, 3040 , 97 L.Ed.2d 523 (1987). We are not agreed, however, as to how the standard of “objective reasonableness” must-be applied to situations in which the police are suddenly confronted with the confused scene of a crime or disturbance as were the officers in this case.
The majority’s misapprehension of qualified immunity is threefold. First, it ties qualified immunity to what actually transpired rather than to the reasonableness of the officers’ perceptions of what took place. Here, the officers reasonably relied upon the complaint of an apartment resident whom they had no reason to distrust and whose repeated reports of violent disturbances were corroborated by the officers’ own observations. Second, the majority adopts a standard of qualified immunity that leaves little room for summary judgment in cases of mistaken searches and seizures, even where the mistake is a reasonable one. In this regard, the majority’s view that neither Gooden nor her neighbors were in imminent danger is nothing more *1365 than an impermissible exercise in hindsight. Had someone been seriously injured in this incident, the consternation over alleged police misconduct would have been every bit as great. Finally, the majority defines “clearly established” law at a level of generality so broad as to discard qualified immunity in cases where official action is open to reasonable debate. I shall address these three errors in turn, the cumulative effect of which is to leave the defense of qualified immunity in a rubbled state.
I.
The majority believes there are genuine issues of fact as to the reality of what occurred at the Chase Clary apartment complex the night of March 2 and therefore as to what “information the ... officers possessed.” Anderson, 483 U.S. at 641 , 107 S.Ct. at 3040 . It regards the actual reality of what transpired and the reasonableness of the officers’ perceptions of that reality to be inextricably linked. If this be so, a jury trial will be required in almost every case where the witnesses at the typically confused scene of a crime differ over what occurred. In my judgment, the majority places too much emphasis on the illusory search for what actually transpired and too little on the officers’ reasonable perception of the jumbled events on the evening in question.
The majority insists on sending this case to trial so that a jury can make “credibility determinations respecting flatly conflicting versions of critical historical facts.” Maj.Op. at 1364. It believes that the reasonableness of the officers’ perceptions cannot be determined until the reality of what happened on March 2 is determined by a jury: “if the reality of what was taking place at the times in issue was as Gooden’s evidence tends to show, it is fairly disputable whether these officers reasonably could have perceived things to be as they testified they were.” Maj.Op. at 1363. In the majority’s view, a definitive picture of events must be procured before the reasonableness of the officers’ conduct can even be assessed: “More specifically, if Cummings’ version of events were accepted — that the probable source of the noises of altercation upon which the officers acted was the Dowlings’ quarters rather than Gooden’s and that Cummings so advised the officers who then failed to verify this possibility — it is fairly disputable whether they reasonably could have believed their conduct to be justified.” Maj.Op. at 1363.
However, in determining “the information the ... officers possessed,” Anderson, 483 U.S. at 641 , 107 S.Ct. at 3040 , the court must determine what the police reasonably perceived the reality to be. If the object of lawsuits such as these is to deter unlawful conduct, then we must tie the reasonableness of a police response to the reasonableness of police perceptions. Reasonable responses based upon reasonable perceptions is all that can be expected of persons required to make difficult discretionary judgments at a chaotic scene. See Harlow v. Fitzgerald, 457 U.S. 800 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982). One district court has explained that to avoid becoming immersed in the sort of subjective inquiry that Harlow sought to avoid, “the court must accept as true the claims of the defendant with respect to the facts assertedly relied on by the defendant in determining that he had probable cause ..., in the absence of evidence to the contrary.” Howard v. Vandiver, 731 F.Supp. 1290, 1296 (N.D.Miss. 1990).
Inevitably there are disputed facts as to what actually occurred on the night of March 2; but as to the officers’ perceptions, the area of dispute is considerably circumscribed. In fact, it is undisputed that the police officers perceived the screams to be coming from Gooden’s apartment. The fact that there is a dispute as to where the screams originated in reality does not raise a factual dispute as to what these officers perceived. The majority may be correct in assuming that the acoustics of the building were such that the screams that the officers perceived to be coming from Gooden’s apartment were really coming from some place else. There is no evidence, however, that their mistaken (if in fact it was mistaken) perception was unreasonable.
*1366 This is not a case of action impulsively taken or conclusions hastily drawn: this seizure occurred only upon the officers’ second visit to the apartment complex and during their second contact with Gooden on the evening in question. In effecting the seizure, the officers followed state procedure which permitted them to petition for an emergency evaluation of an individual where the officer “has reason to believe that the individual has a mental disorder and that there is a clear and imminent danger of the individual’s doing bodily harm to the individual or another.” Md. Health-General Code Ann. § 10-622(a) (1990). The fact that the officers acted under state procedure is relevant to the federal question of “objective reasonableness” provided, of course, that there was evidence of imminent danger to Gooden or others as required by state law.
Here there plainly was. The police had twice been called to the apartment complex by Denise Beck, who unequivocally stated that blood-chilling screams were coming from the apartment above her. The first time Officers Pollack and Yeager came to the complex to investigate Beck’s report, they prudently did nothing. The second time the police responded to Beck’s call, Officers Salter and Yeager heard a horrible scream immediately upon entering the apartment building that they too thought was coming from Gooden’s apartment. After running up the three flights of stairs to Gooden’s door, they heard yet another scream from within. When questioned, Gooden declared that she had “yelped” when she burned herself ironing. (Whether this explanation was in any sense corroborated is a matter of dispute.) The police officers then conducted a door-to-door canvass of the complex and found no alternative explanation than that the screams were coming- from Gooden’s apartment. Standing in Beck’s apartment after their first contact with Gooden that evening, Officer Yeager, Officer Salter and Beck again heard violent screams as well as loud thumps and saw the chandelier swing. While Officer Salter was in the hallway, Officer Yeager heard a male voice and a female voice yelling but never heard both voices simultaneously. It was not until the very last minute that the possibility that the screams came from below Beck’s apartment was even raised. How the officers can be faulted when their own investigation and observations corroborated Beck’s reports is beyond me. As we have earlier noted, “it is precisely the function of qualified immunity ... to excuse reasonable mistakes in making the composite factual and legal judgments leading” to seizures. Sevigny v. Dicksey, 846 F.2d 953, 957 (4th Cir.1988).
In sending to trial the factual inquiry of whether Beck’s reports were correct rather than asking whether the officers reasonably relied upon them, the majority’s approach is in conflict with that of the Seventh Circuit in McKinney v. George, 726 F.2d 1183 (7th Cir.1984). That court held that “[i]f policemen arrest a person on the basis of a private citizen’s complaint that if true would justify the arrest, and they reasonably believe it is true, they cannot be held liable for a violation of the Constitution merely because it later turns out that the complaint was unfounded.” McKinney, 726 F.2d at 1187 . The court noted that “it is unimportant whether McKinney really kept his neighbors up for two nights by screaming from his window” provided that the police had no reason to believe the complaint from his neighbors was untrue. McKinney, 726 F.2d at 1187 . Plainly the police had no reason here to disbelieve what Beck had told them especially when their own observations confirmed her complaint.
A painstaking reconstruction before a jury of what the reality may have been will not further illuminate what these officers indisputably perceived — namely, that harrowing screams were coming from Goo-den’s apartment. Though the majority has the information it needs to resolve the question of qualified immunity, it sends the case to a jury. This, of course, defeats the purpose of qualified immunity because whatever rights these officers possessed will be “effectively lost” if this case “is erroneously permitted to go to trial.” *1367 Mitchell v. Forsyth, 472 U.S. 511, 526 , 105 S.Ct. 2806, 2815 , 86 L.Ed.2d 411 (1985).
II.
The majority’s view of qualified immunity will produce a triable issue under section 1983 whenever the police commit an error. A search which fails to turn up incriminating evidence or a seizure of the wrong person must now be submitted to a jury so that the actual facts, not simply the facts as reasonably perceived by the officers, may be ascertained. This again is a misguided view of qualified immunity — it is as dangerous to conclude that a mistaken search or seizure presumptively poses a question for the jury under section 1983 as it is to believe that the finding of incriminating evidence or the arrest of an actual offender invariably defeats a motion to suppress.
The Supreme Court has never taken the view that a mistaken seizure presumptively abrogates qualified immunity. Rather, “it is inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude that probable cause is present” and “those officials — like other officials who act in ways they reasonably believe to be lawful — should not be held personally liable.” Anderson, 483 U.S. at 641 , 107 S.Ct. at 3040 . I see little room in the majority opinion, however, for any grant of summary judgment to law enforcement officials on the grounds of reasonable mistake. Here the officers’ own impressions of the screams were corroborated by Beck’s perceptions on the night in question and Beck’s statements to the police that she had heard repeated screams and voices yelling from the apartment upstairs. The noises were frightening; the officers obviously feared for the safety of the woman in the apartment above and for the occupants of the complex. Unfortunately, in acting on the basis of this information and upon their own investigation, Officers Yeager, Pollack and Salter did make a mistake— Gooden is not mentally ill — and Gooden did suffer from the error. But the majority has yet to explain what it expected from these defendants.
Should they have washed their hands of the whole affair, leaving the screamer to injure herself or to disturb and harm the other residents? The situation placed the officers between the proverbial rock and hard place. If the officers acted and took Gooden in for evaluation and she proved not to be mentally ill, they faced possible suit and liability under section 1983, an eventuality that has come to pass. If they refused to act, however, and Gooden had seriously harmed herself or others, the officers might still have faced the prospect of suit under section 1983 or state tort law for failure to protect when they had plainly been placed on notice of dangerousness. See, e.g., Estate of Bailey v. County of York, 768 F.2d 503 , 508-11 (3d Cir.1985) (state duty to protect not limited to persons in custody). It is true that a divided Supreme Court has subsequently held that an individual’s due process rights are not violated by an official’s failure to protect when the official had notice of danger, because the purpose of the Fourteenth Amendment “was to protect the people from the State, not to ensure that the State protected them from each other.” DeShaney v. Winnebago County DSS, 489 U.S. 189 , 109 S.Ct. 998, 1003 , 103 L.Ed.2d 249 (1989). Surely, however, these officers are not to be charged with forecasting the De-Shaney decision. The uncertainty in the law at the time of this incident would of course be asserted as a qualified immunity defense. Nonetheless, the officers can hardly be faulted for doubting the outcome of any legal action that might be brought against them for failure to defuse a dangerous situation for which they had twice been called to the scene and as to which they had twice been placed on notice. In addition, I find all too facile the suggestion that the officers should have walked away from the situation because Gooden evidenced no injuries at the time they were with her. Maj.Op. at 1360 and n. 6. If the officers had refused to act until they saw blood, bruises and splintered furniture, it might have been too late for Gooden or her neighbors.
I also find puzzling the majority’s suggestion that the officers acted unreason *1368 ably in failing to gather more information. It is clear that the officers conducted a door-to-door canvass in an attempt to locate any possible alternative source of the screaming and found none. The majority is similarly unpersuasive in suggesting that the officers were wrong in failing to “make calls to verify [Gooden’s] claim that she had not been screaming but instead had been on the phone with Marc Brogdon, her mother and Officer Carter throughout the evening.” Maj.Op. at 1359. That course of action, however, may have invaded Gooden’s privacy, may have embarrassed Gooden in the eyes of her family and friends, and would not even have conclusively established that the screams had not come from her apartment.
Finally, the majority appears to think that Cummings’ testimony alone may render the officers’ perceptions and conduct unreasonable. However, the majority is simply wrong in stating that the officers failed to verify the possibility that the screams came from the Dowlings’ apartment. It is undisputed that Officers Yeager and Pollack went to the Dowlings’ apartment, talked both to Mr. and Mrs. Dowling and learned that indeed the Dowlings had been arguing that night. Cummings states that, after comparing notes with him, Beck agreed that the screams came from the Dowlings’; Beck herself states that to this day she believes that the screams came from Gooden’s apartment. Even the acceptance of Cummings’ last-minute claims as true is not enough to explain away the police officers’ firsthand perceptions of violent screams coming from Gooden’s apartment. It is perfectly consistent that in such a large complex a couple in one apartment could be arguing while in another apartment a woman could be screaming. The belief that the two incidents were separate is detailed in the report by Sergeant Pollack in which he explained that the police had investigated another, separate disturbance: “The ‘muffled’ screams heard during the incident were later found to be originating from apartment # 312. The disturbance at that apartment was the result of a domestic fight at that location between a husband & wife____ This domestic disturbance does not appear to be related to the screams heard coming from the GOODEN apartment by PO’s YEAGER and SALTER.” Police report of 3/6/87, Incident No. 8710618, prepared by Sgt. W.J. Pollack, J.A. at 225.
Before rejecting the claim of qualified immunity in this case, the majority ought at least to suggest what an objectively reasonable course of official conduct might have been. * In the absence of any such suggestion, we are consigned to the conclusion that every mistake in search and seizure is presumptively a question for the jury. This approach is hardly satisfactory for situations rife with close discretionary judgment calls, and it does not comport with the leeway qualified immunity should afford to officers whose options on the night in question were never so clear as they now seem in courtroom daylight.
III.
“If the law at [the time of an official’s actions] was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to ‘know’ that the law forbade conduct not previously identified as unlawful.” Harlow, 457 U.S. at 818 , 102 S.Ct. at 2738 .
The majority compounds its misperception of qualified immunity by misapplying the Supreme Court’s standard on the nature of “clearly established law.” It concludes that the law was “clearly established” for purposes of qualified immunity because seizure of the mentally ill is directly analogous to a criminal arrest and must be supported by probable cause. Maj.Op. at 1362, 1363. However, a discussion of “clearly established” law at this level of *1369 generality proves nothing. Instead, “the right the official is alleged to have violated must have been ‘clearly established’ in a more particularized, and hence more relevant, sense” than the majority recognizes. Anderson, 483 U.S. at 640 , 107 S.Ct. at 3039 . “The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say .that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.” Id.
In Anderson , the Supreme Court held that the Court of Appeals had misapplied these principles because its discussion of qualified immunity “consisted of little more than an assertion that a general right Anderson was alleged to have violated— the right to be free from warrantless searches of one’s home unless the searching officers have probable cause and there are exigent circumstances — was clearly established” and because it erred by refusing “to consider the argument that it was not clearly established that the circumstances with which Anderson was confronted did not constitute probable cause and exigent circumstances.” Anderson, 483 U.S. at 640-41 , 107 S.Ct. at 3039-40 (emphasis in original).
The majority here commits the identical error: it states vaguely that the standard is one of “probable cause” and neglects to consider what constitutes probable cause for the purposes of seizing a person in order for that person to be given an emergency evaluation. The majority concedes that “a paucity of cases” exists to guide the conduct of officers in this latter situation. Maj.Op. at 1361. The one Maryland case cited by the majority held that involuntary commitment procedures adopted by the Baltimore City Police Department were overly vague and that “such confinements [to a mental hospital may] occur only where there has been some demonstration of overtly dangerous behavior.” Gross v. Pomerleau, 465 F.Supp. 1167, 1173-74 (D.Md.1979). This statement — the only guidance the Gross court gives as to what is necessary for commitment — could not have been much help to Officers Yeager, Salter, and Pollack because it furnishes no particulars as to “dangerous behavior.” None of the cases from outside the jurisdiction cited by the majority give clear guidance as to whether probable cause to detain Gooden for an emergency evaluation could be found in the circumstances of this case. See In Re Barnard, 455 F.2d 1370 (D.C.Cir.1971); McKinney v. George, 726 F.2d 1183 (7th Cir.1984); and Harris v. Pirch, 677 F.2d 681 (8th Cir.1982).
The meaning of clearly established law can best be understood by contrasting the law governing searches for evidence of a crime with the law governing seizures for psychological evaluations. In the former area, the Supreme Court has spoken in detail to the constituent elements of probable cause. See Aguilar v. Texas, 378 U.S. 108 , 84 S.Ct. 1509 , 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410 , 89 S.Ct. 584 , 21 L.Ed.2d 637 (1969); United States v. Harris, 403 U.S. 573 , 91 S.Ct. 2075 , 29 L.Ed.2d 723 (1971); Illinois v. Gates, 462 U.S. 213 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983). By contrast, the area of detention for one’s own safety or that of others is uncharted terrain, and lay police officers can hardly be expected to make the psychological evaluations that the majority will now require of them. Law enforcement personnel will search the majority’s decision in vain for guidance on the concept of dangerousness. While it seems clear that no police officer can seize any citizen without foundation, the majority’s decision creates a difficult zone where dangerousness to one’s self or others may be debatable, where monetary liability will now be imposed for protective measures undertaken by policemen, and where judicial guidance is next to naught.
It is, in fact, easier to argue these officers were wrong in what they did than to argue they violated any principle of clearly established law. At the heart of the qualified immunity defense is the requirement that law enforcement officers have fair notice of what is required of them before monetary damages are imposed. Conclud *1370 ing that an official loses immunity “because he gambled and lost on the resolution” of an open question of law departs from the principles of Harlow because “[s]uch hindsight-based reasoning on immunity issues is precisely what Harlow rejected.” Mitchell, 472 U.S. at 535 , 105 S.Ct. at 2820 (defendant entitled to qualified immunity “notwithstanding that his actions violated the Fourth Amendment” because the law was not clearly established). By proceeding simultaneously to strike new paths in Fourth Amendment law and to try these officers for Fourth Amendment violations, the majority denies them the due process that is afforded to all others.
IV.
Nothing would be more unlawful than random police roundups of citizens for emergency psychiatric evaluations. As to the wrongfulness of that, there can be no legal doubt. Officers who act without foundation should be brought to trial and should pay damages because “[i]n situations of abuse of office, an action for damages may offer the only realistic avenue for vindication of constitutional guarantees.” Harlow, 457 U.S. at 814 , 102 S.Ct. at 2736 . However, there is also “the danger that fear of being sued will ‘dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.’ ” Harlow, 457 U.S. at 814 , 102 S.Ct. at 2736 . It is not always possible for police to see and understand exactly what is happening when they arrive upon a scene. Occasional mistakes are inevitable. Any occupation in which employees face substantial legal liability for the slightest misstep will suffer both in morale and in effectiveness.
Officers Yeager, Salter and Pollack responded to a call from a frightened apartment resident. For their trouble, they received a section 1983 suit. The case will now go to trial and the legal incentives, whatever the outcome, will have been substantially skewed in the direction of inaction. Next time, these officers — and thousands like them — may not respond as quickly or act as firmly for public protection. The public loss will be a diffuse one — one which cannot manifest itself in a section 1983 suit. But, in the future, a Denise Beck may call for help — for herself or for someone truly distraught — and no one will answer.
It is possible, of course, that the police might have arrested Gooden for breach of the peace or disorderly conduct. However, any such arrest would have been just as intrusive and perhaps more punitive. And, indeed, the majority opinion is not premised on the belief that the police should have effected a different sort of seizure of Gooden but that the police had insufficient reason to believe that anything was amiss in Gooden's apartment.