Anderson v. Romero

• Decision Date: 15 December 1995
• Docket Number: No. 94-1251,94-1251
• Citation: 72 F.3d 518
• Parties: Dennis ANDERSON, Plaintiff-Appellee, v. Gilberto ROMERO and Arthur Douglas, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 518

72 F.3d 518

Dennis ANDERSON, Plaintiff-Appellee, v. Gilberto ROMERO and Arthur Douglas, Defendants-Appellants.

No. 94-1251.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 22, 1995.

Decided Dec. 15, 1995.

Jerold S. Solovy, Joel J. Africk, Ruth A. Bahe-Jachna (argued), Stephen L. Wood, Jenner & Block, Chicago, IL, for Dennis Anderson.

Rita M. Novak, Office of the Attorney General, Chicago, IL, Thomas L. Ciecko, Office of the Attorney General, Criminal Appeals Division, Chicago, IL, Daniel N. Malato (argued), Office of the Attorney General, Civil Appeals Division, Chicago, IL, for Gilberto Romero and Arthur Douglas.

Barry C. Taylor, Chicago, IL, for Lambda Legal Defense & Education Fund, Incorporated, Amicus Curiae.

Before POSNER, Chief Judge, and COFFEY and FLAUM, Circuit Judges.

POSNER, Chief Judge.

While an inmate at Stateville penitentiary, Dennis Anderson was discovered to be infected with the AIDS virus, HIV (human immunodeficiency virus). The virus gradually destroys an essential component of the immune system, exposing the host to opportunistic infections that eventually kill him. In 1992, after being transferred to Joliet, another Illinois prison, Anderson brought suit for damages and an injunction under 42 U.S.C. Sec. 1983. The complaint alleges that defendant Romero, the superintendent of the cell house at Joliet in which Anderson was placed, told defendant Douglas, a guard, in the presence of another guard, to make sure that Anderson was put in a cell by himself because he was HIV-positive. Douglas told at least one other guard that Anderson was HIV-positive. Later Douglas noticed an inmate named Curry sleeping on the floor of Anderson's cell. (Curry was not Anderson's cellmate. How he got into the cell is not explained.) He told Curry that Anderson was a homosexual and a faggot and that Curry could catch AIDS from him and so had better stay away from him. On another occasion, while Anderson and Curry were standing next to an ice machine, Douglas said to Anderson, "Get away from the ice machine. Pretty soon you will have the whole institution infected." Douglas told an inmate barber not to cut Anderson's hair because Anderson had AIDS. Romero denied Anderson yard privileges for several months, and Anderson believed that this was because he was HIV-positive. All these are just allegations in a complaint; they may be false; but they have not (yet) been denied, and they are not so incredible as to be unworthy of belief on their face. We must therefore take them as true.

The complaint charged that the defendants had violated both Anderson's constitutional right of privacy and the Illinois AIDS Confidentiality Act, 410 ILCS 305/1 et seq., by revealing that he was infected with the AIDS virus, and also that they had deprived him of the equal protection of the laws and of liberty without due process of law by preventing him from having his hair cut and from exercising. All these acts are also charged as cruel and unusual punishments. The defendants moved to dismiss the complaint, citing the qualified immunity of public officers from suits for damages. The judge denied the motion on the ground that there were not enough facts in the record to determine whether the defense of immunity was valid. The defendants appealed. Anderson died of AIDS while the appeal was pending, and after determining that the suit survived his death we appointed his lawyers to carry on the suit as the representatives of his estate. 42 F.3d 1121 (7th Cir.1994). The Lambda Legal Defense and Education Fund, a homosexual-rights organization, has filed a brief as amicus curiae urging affirmance of the district court's decision. The brief makes a variety of legal arguments and in addition documents the discrimination in housing, employment, and other dimensions of living that many people who are known to be infected with the AIDS virus encounter.

If a defendant's immunity from suit depends on a resolution of conflicting factual assertions, or even on determining whether there is a contestable factual question material to the defense of immunity, the court of appeals has no jurisdiction to review the denial of the immunity. Johnson v. Jones, --- U.S. ----, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). The reasons the Supreme Court has given for this rule are that district judges have a comparative advantage in determining factual issues (whether there is a genuine issue of material fact is technically a question of law, but its resolution depends on an assessment of the evidence submitted in support of and opposition to the request for summary disposition) and that having to dig deep enough into the facts of the case to answer the question would entangle the appellate court in the merits of the underlying claim, as distinct from the analytically separate issue of immunity. Id. at ---- - ----, 115 S.Ct. at 2156-58. It does not follow from either the rule or its rationale that the presence of factual disagreement automatically vitiates an immunity appeal. If there is no possible resolution of the disagreement that would save the plaintiff's case from the defense of immunity, the appellate court will not have to resolve any factual disagreements, or even decide whether there are material factual disagreements, in order to determine whether the defense is good.

From the district judge's cryptic discussion we cannot be sure what facts bearing on the defense of immunity he thought in doubt. The only factual uncertainty to which he alluded was whether the defendants had acted pursuant to some duly deliberated prison policy concerning the disclosure of an inmate's HIV status or had disclosed Anderson's status "casually," that is, without reference to any policy. This would be material only if there might be immunity for following a policy but not for acting without reference to a policy. It is not clear how the existence of a policy would affect the issue of immunity, although it could affect the underlying merits of the suit. The parties have not attempted to enlighten us on this score. It occurs to us that by the reference to acting "casually" the judge may have meant acting out of personal spite rather than genuine concern with the danger posed by AIDS, a motivation that could conceivably be inferred from Douglas's use of the word "faggot." Proof of spite does not nullify a defense of immunity. Schertz v. Waupaca County, 875 F.2d 578, 583 (7th Cir.1989). The test for immunity is an objective one. But misuse of official authority for private ends is a recurrent feature of cases in which a deprivation of life, liberty, or property without due process of law is found. Screws v. United States, 325 U.S. 91, 93, 111, 65 S.Ct. 1031, 1032, 1040, 89 L.Ed. 1495 (1945) (plurality opinion); Gibson v. City of Chicago, 910 F.2d 1510, 1518 (7th Cir.1990). The distinction is between an act that is justifiable if considered without regard to the actor's motive--objectively justifiable--and an act that, not being objectively justifiable, is explicable only in terms of the actor's motivation, as in a case of police brutality so egregious that it can be explained only by reference to a racist or other improper motive for the defendant officer's action.

So Douglas's spitefulness, if that is what it was, is irrelevant to the question whether he acted with justification in disclosing Anderson's HIV status, or more precisely whether it was clear in 1992, when this suit was brought, that in disclosing Anderson's HIV status Douglas was infringing a constitutional right of a prison inmate to hide his being HIV positive. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).

A brief sketch of the history of the legal concept of privacy will help frame the issue. The concept originated in a famous article by Warren and Brandeis that found latent in a number of areas of the common law, ranging from copyright to trespass, a policy of protecting people against the invasion of their "private space" (not Warren and Brandeis's term) and the involuntary revelation of personal, private facts about them. Samuel D. Warren & Louis D. Brandeis, "The Right to Privacy," 4 Harv.L.Rev. 193 (1890). After a lag, the concept proposed by Warren and Brandeis fructified in a distinct, many-branched tort of invasion of the right of privacy, a tort that could be committed by wiretapping and other electronic eavesdropping, by publicity that cast a person in a false light, by publicizing intimate details of a person's life or person, by intrusive surveillance (as by searching through a person's private papers), and even by using a celebrity's name or likeness in advertising without the celebrity's consent. Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1229 (7th Cir.1993). Until quite recently only the first and the fourth of these forms of invasion of privacy--electronic surveillance and intrusive surveillance--were thought to have a constitutional dimension. The search of a person's home or person for contraband or other incriminating evidence of crime has been subject to the restrictions of the Fourth Amendment since 1789. The Supreme Court first wrestled with the question whether electronic eavesdropping is also governed by the Fourth Amendment in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928), and held that it was not unless the installation of the listening device involved a trespass, which in the ordinary case it would not. See also Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942). This interpretation of the Fourth Amendment, limiting it to the protection of property rights, was later rejected in a decision that emphasized the role of the amendment in protecting privacy. Katz v. United States 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Meanwhile the term "privacy" was beginning to be used in the law in a completely different sense from concealment or seclusion--as the name of...