Henry Greer, Administrator of the Estate of Mora Patricia Greer v. Stanley D. Shoop Ronald Dohrman Thomas L. Frisch

BEAM, Circuit Judge,

concurring specially.

Because the analytical structure employed by the court is contrary to both Supreme Court and Eighth Circuit precedent, I concur *829 only in the result reached. The opinion adds needless uncertainty to the law of this circuit on issues of qualified immunity.

The district court determined that under the facts extant here, Greer sufficiently alleges a Fourteenth Amendment violation under the “state-created danger theory” of constitutional liability outlined in Wells v. Walker, 852 F.2d 368, 370-71 (8th Cir.1988). Although the language in Wells may arguably have been dictum because the constitutional determination was not necessary to the final holding in the case, we have since affirmed the existence of the theory in this circuit. See Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir.1992) (relying on Wells); Doe v. Wright, 82 F.3d 265, 268 (8th Cir.1996) (same); Davis v. Fulton County, 90 F.3d 1346, 1351 (8th Cir.1996) (same); and Carlton v. Cleburne County, 93 F.3d 505, 508 (8th Cir.1996) (same).

The district court then determined that given the facts advanced by Greer, taken as true for purposes of summary judgment, the contours of the constitutional right would not have been sufficiently discernible to reasonable public officials functioning in the same or similar circumstances to impose liability upon the appellees. Accordingly, the district court found that the appellees were protected from suit by the doctrine of qualified immunity and were, therefore, entitled to summary judgment. Because of the Supreme Court’s opinion in DeShaney v. Winnebago County Dep’t of Soc. Serv., 489 U.S. 189 , 109 S.Ct. 998 , 103 L.Ed.2d 249 (1989), I agree with this result and would affirm on that basis.

In the wake of the DeShaney opinion, lower courts were unsure of the continued viability of theories of liability based on the state’s duty to protect citizens from private harm. See, e.g., Freeman v. Ferguson, 911 F.2d 52, 55 (8th Cir.1990) (“It is not clear, under DeShaney , how large a role the state must play in the creation of danger and in the creation of vulnerability before it assumes a corresponding constitutional duty to protect.”). It is now clear that the state-created danger theory survives DeShaney as a theory of constitutional liability in the Eighth Circuit. See Gregory, 974 F.2d at 1010 ; Wright, 82 F.3d at 268 ; Davis, 90 F.3d at 1351 ; Carlton, 93 F.3d at 508 . At the time of the appellees’ conduct in this case, however, DeShaney was too fresh, and its implications were too uncertain to expect that reasonable public officials in the defendants’ position would understand that their conduct violated Mora Greer’s due process rights under the state-created danger theory. Accordingly, because the contours of the right were not clearly established, I agree that the defendants are entitled to qualified immunity. See Anderson v. Creighton, 483 U.S. 635, 640 , 107 S.Ct. 3034, 3039 , 97 L.Ed.2d 523 (1987)

The court, however, takes a different tack—one that violates at least two of our well established precedents. The court announces that the “state-created danger theory was an emerging rule of law in this circuit in 1991,” ante at 828, even though Wells clearly recognized the doctrine in 1988. The court then “assume[s] mthout deciding, based on the facts accepted for purposes of summary judgment, that [appellant] has sufficiently alleged a violation of Mora Greer’s constitutional rights pursuant to the state-created danger theory.” Id. (emphasis mine). On this assumption, the court proceeds to deal with the issue of qualified immunity.

This approach is squarely at odds with Siegert v. Gilley, a case in which the Supreme Court granted certiorari “in order to clarify the analytical structure under which a claim of qualified immunity should be addressed.” 500 U.S. 226, 231 , 111 S.Ct. 1789, 1793 , 114 L.Ed.2d 277 (1991). The Supreme Court established that the “first inquiry in the examination of [a claim of qualified immunity]” is whether a “violation of a clearly established constitutional right” has been alleged at ah. Id. In Siegert, as here, the circuit court had assumed, without deciding, that Gilley’s actions violated Siegert’s constitutional rights. Id. at 232 , 111 S.Ct. at 1793 . The Supreme Court found this approach to be error. It stated, “We think the Court of Appeals should not have assumed, without deciding, this preliminary issue in this case.” Id. The Court explained that “[a] necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff *830 is ‘clearly established’ at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all.” Id.

This court has repeatedly construed Siegert as requiring a two-stage approach. In Munz v. Michael, Judge Magill stated, “The qualified immunity inquiry involves a two step process. First, this court must determine whether the plaintiff has alleged a violation of a constitutional right.” 28 F.3d 795, 799 (8th Cir.1994). Judge McMillian in Manzano v. South Dakota Dep’t of Soc. Sen., stated, “We recognize that the Supreme Court’s decision in Siegert v. Gilley has caused considerable disagreement among the circuits with regard to the proper analytical framework for qualified immunity questions. However, our court has consistently interpreted Siegert to mean that we must first address the question whether the plaintiff has asserted the violation of a constitutional right, and then consider whether the right was clearly established at the time of the alleged violation.” 60 F.3d 505 , 510 n. 2 (8th Cir.1995) (citations omitted); accord Weiler v. Purkett, 137 F.3d 1047, 1050 (8th Cir.1998) (en banc); Thomas v. Hungerford, 23 F.3d 1450, 1452 (8th Cir.1994); Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir.1992); Cross v. City of Des Moines, 965 F.2d 629, 631-32 (8th Cir.1992).

Were we to undertake the constitutional analysis required by Siegert, I am not necessarily convinced that the facts alleged by the plaintiff here would suffice to make out a violation of Mora Greer’s constitutional rights. I am content, however, to concur based on the opinion of the district court, and in the result reached by the court today.