# Gerald W. Shields v. David Burge, Individually, and as Superintendent With the Illinois State Police > Court of Appeals for the Seventh Circuit · May 15, 1989 · 874 F.2d 1201 URL: https://www.frixlaw.com/law-library/cases/9479025 ## Case - **Full name:** Gerald W. SHIELDS, Plaintiff-Appellant, v. David BURGE, Individually, and as Superintendent With the Illinois State Police, Et Al., Defendants-Appellees - **Court:** Court of Appeals for the Seventh Circuit - **Decided:** May 15, 1989 - **Citations:** 874 F.2d 1201; 4 I.E.R. Cas. (BNA) 623; 1989 U.S. App. LEXIS 7267; 1989 WL 53304 - **Precedential status:** Published - **Opinion:** Concurrence by Cudahy - **Judges:** Bauer, Cudahy, Manion - **Cited by:** 62 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9479025 ## How later opinions describe it (automated extraction) - holding that work- related investigatory search of officer’s desk may be sup- ported by reasonable suspicion; noting that employee did not argue that search was “part of any criminal investiga- tion” - holding that work-related investigatory search of officer’s desk may be supported by reasonable suspicion; noting that employee did not argue that search was “part of any criminal investigation” - noting that qualified immunity was not raised on appeal but that “[w]e may affirm the district courtʹs decision on any ground that the record fairly supports and the appellee has not waived below.” - noting that any other standard “would empower a defendant to defeat personal jurisdiction merely by filing a written affidavit contradicting jurisdictional facts alleged by a plaintiff” ## Opinion text CUDAHY, Circuit Judge, concurring. I join fully in the admirable Sections I and II of the majority opinion. These analyses of the fourth amendment problems presented here are balanced and insightful and I think fairly reflect whatever may serve as relevant case law. In addition, I agree with the result reached in Section III. I write separately only to suggest additional dimensions of the allegations of apparently malicious interference in a psychotherapeutic relationship. If we accept the truth of Shields’ claims (as we must at this early stage of the litigation), there may have been gross abuse of official authority, for no other reason than to force Shields to resign. I think that state tinkering with the intimate bond of psychotherapy may well have constitutional dimensions. In Stanley v. Georgia, 394 U.S. 557 , 89 S.Ct. 1243 , 22 L.Ed.2d 542 (1969), addressing the perhaps unattractive right of citizens to possess obscene materials in the privacy of their own homes, the Supreme Court made a powerful statement: [A]lso fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy. “The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his *1212 intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized man.” Olmstead v. United States, 277 U.S. 438, 478 [ 48 S.Ct. 564, 572 , 72 L.Ed. 944 ] (1928) (Brandeis, J., dissenting). These are the rights that appellant is asserting in the case before us. He is asserting the right to read or observe what he pleases — the right to satisfy his intellectual and emotional needs in the privacy of his own home_ If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds. ... Whatever the power of the state to control public dissemination of ideas inimical to the public morality, it cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts. Id. 394 U.S. at 564-66 , 89 S.Ct. at 1247-49 (emphasis added; other citations omitted). Although Stanley could have been decided on the narrow first amendment ground that the state could not prevent the receipt of information, its holding is in fact considerably broader: the state may not attempt to control the minds of its citizens, whether the targeted thoughts and feelings are intellectual or emotional. 1 This “freedom to be one’s self,” which encompasses spiritual, emotional and intellectual thoughts and feelings, is protected, at least in some contexts, by a constitutional right of privacy, which may only be overriden by a compelling state interest. Unimpeded access to psychiatric counseling may well be a part of one’s right to autonomously define one’s own personality. The psychiatrist-patient relationship is not protected by a right of privacy for its own sake; instead, this relationship enjoys protection only because medical assistance may sometimes be necessary to individual integrity and freedom. There is a long line of cases which have specifically recognized a constitutionally protected right to independent control of one’s own psychiatric treatment. For example, in Aden v. Younger, 57 Cal.App.3d 662 , 129 Cal.Rptr. 535 (1976), a group of physicians and psychiatric patients challenged a California statute which limited the availability of electroconvulsive therapy and psychosurgery. The court found that the challenged statute infringed a constitutionally protected right to control the course of one’s own psychiatric treatment. [T]he right to privacy [ ] clearly includes privacy of the mind. The right to be free in the exercise of one’s own thoughts is essential to the exercise of other constitutionally guaranteed rights.... Here the state has sought to control neither what is thought by mental patients, nor how they think. Rather, the state is attempting to regulate the use of procedures which touch upon thought processes in significant ways, with neither the intention nor the effect of regulating thought processes, per se.... Freedom of thought is intimately touched upon by any regulation of procedures affecting thought and feelings. ... [T]he state has put procedural and substantive obstacles in the path of those who both need and desire certain forms of treatment, and in that way their *1213 freedom of thought remains impaired because they cannot get treatment.... Public exposure, or even disclosure to limited numbers of government representatives, may have a chilling effect on patients’ efforts to undergo these treatments, thereby restricting their freedom of thought.... Although the reasons for such denials [of treatment] may be the patients’ own best interests, such regulation must be justified by a compelling state interest. Id. at 679-80 , 129 Cal.Rptr. at 546-47 (emphasis added; citations omitted). Thus Aden recognized that access to, and control of, certain sorts of psychiatric treatment is protected by a right of privacy guaranteeing integrity and freedom of thought and feeling. See also, Northern California Psychiatric Soc’y v. City of Berkeley, 178 Cal.App.3d 90, 104-06 , 223 Cal.Rptr. 609, 614-15 (1986) (absolute ban on electrocon-vulsive therapy violates patient’s right to select appropriate means of psychiatric treatment); Lillian F. v. Superior Court, 160 Cal.App.3d 314, 321-22 , 206 Cal.Rptr. 603, 607 (1984). The most extensive body of case law recognizing individual autonomy in psychiatric treatment involves an involuntarily committed individual’s right to refuse psychiatric treatment, particularly electrocon-vulsive therapy or the administration of psychotropic drugs. For example, recognizing that “antipsychotic medication has the potential to infringe upon an individual’s freedom of thought,” the Fourth Circuit recently held that compulsory psychiatric treatment infringed upon the individual’s rights of privacy, and freedom of thought and personality. United States v. Charters, 829 F.2d 479, 489 (4th Cir.1987). Where, as here, medication which is potentially mind altering is concerned, the threat to individual rights goes beyond a threat of physical intrusion and threatens an intrusion into the mind. The interest in preventing intrusions into one’s mind has been recognized as worthy of constitutional protection ... The impact of antipsychotic medication upon the mind may be sufficient to undermine the foundations of personality. Such mind altering medication has the potential to allow the government to alter or control thinking and thereby to destroy the independence of thought and speech so crucial to a free society. “The power to control men’s minds is wholly inconsistent not only with the philosophy of the first amendment but with virtually any concept of liberty.” Id. at 492 (citations omitted). 2 The lesson of Aden and the right-to-refuse-treatment cases is straightforward: psychiatric treatment involves the most in- *1214 tímate and personal aspects of one's personality — aspects which define the individual in a unique and spiritual way. Since the state may not control one’s thought processes directly, it may not, without a compelling interest, interfere with the psychiatric treatment that is needed for a healthy mental and emotional life. In the present case, Shields alleges that the defendants pressured his psychiatrist into changing his diagnosis of Shields’ condition, thereby denying Shields the course of treatment (medical leave) which the psychiatrist believed necessary to heal his patient. To my mind, this sort of direct governmental interference with the treatment modality prescribed by a psychiatrist may very well violate a right of privacy. In Aden and the right-to-refuse-treatment cases, the court had to weigh a patient’s undeniable privacy right against a considered legislative, judicial or professional determination that certain forms of psychiatric treatment were or were not beneficial to the subject. But the present case is not complicated by the need to weigh against the individual’s right any “compelling” state interest. For in this case the interference with Shields’ relationship with his psychiatrist was purely gratuitous, apparently serving no governmental “interest” other than the desire to railroad a suspect worker out of his government job. Therefore the allegations in Count II seem to me to assert a violation of Shields’ right of privacy. Although state intrusion into a psycho-therapeutic relationship without justification can very well violate the constitution, the right to be free of this interference in the circumstances immediately before us seems not to be well established. I therefore join the majority’s conclusions on qualified immunity. I do so in the belief, however, that the charges of psychiatric manipulation are probably the most serious of those presented by this case. . The grounding of Stanley in one’s right to control one’s own emotional and intellectual life was recognized in United States v. Reidel, 402 U.S. 351 , 91 S.Ct. 1410 , 28 L.Ed.2d 813 (1971), which refused to extend Stanley to the commercial distribution and sale of pornography: "The focus of [Stanley ] was on freedom of mind and thought and on the privacy of one’s home.” Id. at 356, 91 S.Ct. at 1412 ; see also Whalen v. Roe, 429 U.S. 589 , 599 n. 24, 97 S.Ct. 869 , 876 n. 24, 51 L.Ed.2d 64 (1977) (right of privacy comprehends "the right of an individual to be free in action, thought, experience, and belief from governmental compulsion”). . Accord, Walters v. Western State Hosp., 864 F.2d 695, 697-98 (10th Cir.1988); Bee v. Greaves, 744 F.2d 1387, 1392-93 (10th Cir.1984), cert. denied, 469 U.S. 1214 , 105 S.Ct. 1187 , 84 L.Ed.2d 334 (1985); Mackey v. Procunier, 477 F.2d 877, 878 (9th Cir.1973); Rogers v. Okin, 478 F.Supp. 1342, 1369 (D.Mass.1979), aff'd in relevant part, 634 F.2d 650, 653 (1st Cir.1980) (it is "an intuitively obvious proposition” that "a person has a constitutionally protected interest in being left free by the state to decide for himself whether to submit to ... the administration of antipsychotic drugs”), vacated and remanded on other grounds sub nom. Mills v. Rogers, 457 U.S. 291 , 102 S.Ct. 2442 , 73 L.Ed.2d 16 (1982), on remand, Rogers v. Okin, 738 F.2d 1 (1st Cir.1984); Rennie v. Klein, 462 F.Supp. 1131, 1144-45 (D.N.J.1978), 476 F.Supp. 1294, 1307 (D.N.J.1979), modified and remanded on other grounds, 653 F.2d 836 (3d Cir.1981) (en banc), summarily vacated and remanded, 458 U.S. 1119 , 102 S.Ct. 3506 , 73 L.Ed.2d 1381 (1982), reaff'd on remand, 720 F.2d 266 , 269 (3d Cir.1983) (en banc)’, Souder v. McGuire, 423 F.Supp. 830, 832 (M.D.Pa.1976); Riese v. St. Mary’s Hosp. & Medical Center, 196 Cal.App.3d 1388 , 243 Cal.Rptr. 241, 250 (1988); In re K.K.B., 609 P.2d 747, 750-51 (Okla.1980); Superintendent of Belchertown v. Saikewicz, 373 Mass. 728, 739 , 370 N.E.2d 417, 424 (1977); Winick, Legal Limitations on Correctional Therapy and Research, 65 Minn.L.Rev. 331, 345-47 (1981); Rhoden, The Right to Refuse Psychotropic Drugs, 15 Harv. C.R.-C.L.L.Rev. 363, 382-88 (1980); Plotkin & Gill, Invisible Manacles: Drugging Mentally Retarded People, 31 Stan.L.Rev. 637, 660-62 (1979); Plotkin, Limiting the Therapeutic Orgy: Mental Patients’ Right to Refuse Treatment, 72 NW.U.L.Rev. 461, 493 (1977). Cf. Gorman v. University of Rhode Island, 646 F.Supp. 799, 814 (D.R.I.1986) (conditioning readmission of suspended student on completion of course of psychiatric counselling violates student’s right of privacy, to "decifde] whether or not to seek psychiatric care or treatment”), rev’d in part on other grounds, 837 F.2d 7 (1st Cir.1988). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9479025. Public record. Not legal advice.