The opinion
BENSON; Senior District Judge,
dissenting.
I respectfully dissent. I concur with the majority that Widseth’s First Amendment Right to free speech appears to be implicated, but, I do not think we have to reach that issue. I would hold there are no genuine issues of material fact, and, Widseth is entitled to qualified immunity and summary judgment dismissal of Latimore’s claim.
Latimore’s Eighth Amendment Right to be free from cruel and unusual punishment was clearly violated, but, not by defendant Widseth. It is undisputed that the information disclosed by Widseth was public information as set out in the following quote from the majority opinion:
At Latimore’s plea hearing in February, 1987, Widseth informed the court that Latimore had fulfilled his part of the agreement by providing the statement and agreeing to testify in the Krietz case. The court accepted Latimore’s plea, and the transcript of the plea hearing, held in open court, was filed promptly by the clerk of the court and became a public record.
Latimore benefited from the plea agreement. Pursuant to the agreement, the court released him from confinement on the basis of “time served.” If the court had known, or had reason to believe, Latimore would, or might, commit another vicious crime against an elderly woman six months after his release, it obviously would not have accepted the plea agreement. I would hold as a matter of law, that under the facts of this case, Latimore forfeited any right of recourse against the prosecuting attorney arising out of his plea agreement, already a matter of public record in the prior case, by reason of the attorney’s further disclosure of that agreement on a legitimate inquiry from the press several months later.
The custody and jurisdiction of the plaintiff at the time of the attack rested with the prison officials, not the prosecuting attorney. There has been no showing in this case that defendant Widseth’s truthful communication in response to a public inquiry lacked, “objective legal reasonableness.” I would hold that defendant George Widseth is entitled to qualified immunity as a matter of law.