“While cases involving the exact fact pattern at bar are unnecessary, case law in a closely analogous area is crucial to permit [the court] to conclude that reasonably diligent government officials would have known of the case law, related it to the situation at hand, and molded their conduct accordingly”
How later courts described this case
- “While cases involving the exact fact pattern at bar are unnecessary, case law in a closely analogous area is crucial to permit [the court] to conclude that reasonably diligent government officials would have known of the case law, related it to the situation at hand, and molded their conduct accordingly”
- "[T]he Government's role * * * in the undercover operation * * * had to be kept absolutely secret to preserve the sting's success."
- right must be “clearly established at the time the incidents occurred”
Written by the judges who cited it.
The opinion
FLAUM, Circuit Judge,
concurring in the judgment.
The precise issue presented in this appeal is whether the federal officers involved are qualifiedly immune from suit. To decide this issue, we are obliged to examine whether injuries to innocent victims of federal undercover investigations may violate the Fifth Amendment’s Due Process Clause. I conclude that it is unnecessary to definitively resolve this particular inquiry in the context of this case. 1 Although Judge Wisdom’s dissent is constitutionally appealing, because this precise due process question has not been previously addressed by any federal court, I conclude that the officers involved are immune from suit. I therefore join Judge Pell in reversing the judgment of the district court.
I.
The Supreme Court has recently spoken in the area of qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982). In Harlow the Court held that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at 2738. This court recently stated that “whenever a balancing of interests is required the facts of the existing case law must closely correspond to the contested action before the defendant official is subject to liability under ... Harlow.” Benson v. Allphin, 786 F.2d 268, 276 (7th Cir.), cert. denied, — U.S. -, 107 S.Ct. 172 , 93 L.Ed.2d 109 (1986). Furthermore, for officials to lose their qualified immunity, Harlow requires that the constitutional rights in question must be clearly established; this means that the “right must be sufficiently particularized to put potential defendants on notice that their conduct probably is unlawful.” Azeez v. Fairman, 795 F.2d 1296, 1301 (7th Cir.1986). Under Harlow’s objective standard, any due process rights that Lightner may have possessed were not clearly established at the time of the alleged injury in this case.
This court in Benson noted that there may be “a situation in which the defendant’s actions are so egregious that the result of the balancing test will be a foregone conclusion, even though prior caselaw may not address the specific facts at issue.” Benson, 786 F.2d at 276 n. 10. I do not believe that this is a case where the defendants’ conduct is so egregious as to strip *824 them of their qualified immunity. However, if a future case with more compelling facts than this situation should arise, the defendants might not be so shielded.
II.
I therefore conclude that we need not resolve whether or not any of Lightner’s possible due process rights, as guaranteed by the Fifth Amendment, have been violated. I find that any possible due process rights Lightner may have under the facts of this case were not “clearly established,” as required by Harlow ; thus, the defendants are immune from suit in this case.
. The facts underlying this suit are fully discussed in Judge Pell’s opinion and will not be repeated here.