Latimore v. Widseth

• Citation: 7 F.3d 709
• Decision Date: 12 October 1993
• Docket Number: No. 92-1641,92-1641
• Parties: Charles Dewey LATIMORE, Appellee, v. George WIDSETH, Assistant Hennepin County Attorney, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 709

7 F.3d 709

Charles Dewey LATIMORE, Appellee, v. George WIDSETH, Assistant Hennepin County Attorney, Appellant.

No. 92-1641.

United States Court of Appeals,

Eighth Circuit.

Submitted June 8, 1993.

Decided Oct. 12, 1993.

Toni Ann Bunker Beitz, Minneapolis, MN, argued (Mary L. Egan and Toni A. Beitz, on the brief), for appellant.

Douglas Peine, St. Paul, MN, argued, for appellee.

Before RICHARD S. ARNOLD, Chief Judge, McMILLIAN, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM, LOKEN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges, en banc.

BOWMAN, Circuit Judge.

George Widseth appeals the District Court's decision denying his motion for summary judgment based on qualified immunity in Charles Latimore's 42 U.S.C. § 1983 case. ¹ A panel of this Court affirmed and remanded for trial. Latimore v. Widseth, 986 F.2d 292 (8th Cir.1993) (subsequent history omitted). We granted Widseth's petition for rehearing en banc, vacated the panel opinion, and now reverse the judgment of the District Court.

In February 1987, Charles Latimore pleaded guilty to a charge of aggravated robbery. Pursuant to a plea bargain negotiated by George Widseth, Assistant Hennepin County (Minnesota) Attorney, and agreed to by the parties in October 1986, Latimore consented to give a formal statement and to testify in another case Widseth was prosecuting, in exchange for a recommendation for leniency in sentencing on the aggravated robbery charge. Although he was not involved, Latimore had information about the gang-related murder of sixteen-year-old Christine Kreitz, who was killed because she allegedly had provided information to authorities about the perpetrators of a gun store robbery. Latimore's statement implicated Grailon Williams and John Scruggs, both members of the Disciples, a gang with which Latimore had been associated.

Latimore's plea hearing, where his cooperation with authorities in the Kreitz case was noted, took place in open court and on the record, and a transcript of the hearing was filed with the clerk of the court. Besides being a matter of public record, the terms of the plea agreement and the substance of Latimore's statement were disclosed to the defense in the Kreitz case, as required by Minnesota law. Further, Latimore was identified as a possible witness in the case, although he was not called to testify at the trial. ² On the aggravated robbery charge, Latimore received a sentence of forty-nine months, with credit for time served, the balance of the sentence suspended, three years of probation, and a requirement that he complete a substance abuse treatment program. Latimore was released at sentencing (in fact, he was released after the plea hearing) and served no additional jail time for the aggravated robbery.

On September 9, 1987, Latimore was arrested for the brutal stabbing and robbery of a ninety-one-year-old woman in her apartment. Because of the heinous nature of the crime, the media were provoked to inquire of Widseth why someone with Latimore's long criminal history was not still serving time for the aggravated robbery offense. Widseth answered truthfully, revealing no more information than that which could be found in the public record, that Latimore received a reduced sentence because he provided information to the prosecution in the Kreitz murder case. Widseth's comments were reported on the local television news.

One month later, Latimore was sent to the state correctional facility at Stillwater, Minnesota. His admission interviews show that prison authorities asked whether he knew of anyone in prison who might wish to harm him or whether he required special protection. He responded that he did not. On November 13, 1987, Latimore was moved from the orientation unit at Stillwater to the general prison population. One week later, he was attacked in his cell and stabbed by four inmates who, Latimore claims, were known gang members. ³

The only issue before us is whether Widseth is entitled to qualified immunity on Latimore's claim. ⁴ The availability of the defense to an official exercising discretionary authority in a particular case requires careful consideration of the established law at the time, the state actor's objective knowledge of that law, and the complained-of conduct. "Qualified immunity protects a government official from suit if, at the time of the challenged acts, it was not clearly established that those actions would violate clearly established law of which a reasonable person would have known." Jackson v. Rapps, 947 F.2d 332, 338 (8th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1561, 118 L.Ed.2d 208 (1992). Immunity will be appropriate if the § 1983 plaintiff does not allege violation of a clearly established constitutional right in the first instance. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The mere assertion of such a right, however, will not be adequate: "The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). Thus the defense still may be viable, even in the face of a clearly established (and violated) constitutional right, if the defendant can demonstrate "the 'objective legal reasonableness' of the action assessed in light of the legal rules that were 'clearly established' at the time it was taken." Anderson, 483 U.S. at 639, 107 S.Ct. at 3038 (citations omitted) (quoting Harlow, 457 U.S. at 819, 818, 102 S.Ct. at 2739, 2738).

The constitutional right invoked here, and well established in the law, is Latimore's Eighth Amendment right to be free from cruel and unusual punishment, specifically, "to be protected from harm by fellow inmates." Smith v. Marcantonio, 910 F.2d 500, 501 (8th Cir.1990). The "well established" nature of the right asserted does not short-circuit our inquiry. Latimore cannot assert a broad constitutional right, and violations thereof, and survive a motion for summary judgment on qualified immunity grounds simply because there is no dispute that he does indeed have the right asserted. "For example, the right to due process of law is quite clearly established by the Due Process Clause, and thus there is a sense in which any action that violates that Clause (no matter how unclear it may be that the particular action is a violation) violates a clearly established right." Anderson, 483 U.S. at 639, 107 S.Ct. at 3038. If we accept Latimore's theory, we would be permitting him "to convert the rule of qualified immunity ... into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights." Id.

Latimore in effect claims a constitutional right to have withheld from the media truthful matters of public record concerning his having obtained a favorable plea agreement in exchange for information useful to the prosecution in another case. There is no such constitutional right, even vaguely established, in our jurisprudence, and no objectively reasonable prosecutor would have been aware of such an established right. Moreover, assuming we were to accept without question that the broad Eighth Amendment right to be protected from harm inflicted by fellow inmates is the constitutional right properly invoked here, Widseth could not have known that his actions would violate that right. No case has held a prosecutor liable under § 1983 for violating a prisoner's Eighth Amendment rights as a result of the prosecutor's truthful statements to the press concerning matters of public record.

The related § 1983 cases, involving absolute immunity claims, constitutional protections other than Eighth Amendment rights, defendants other than prosecutors, and false statements to the press, would not put a reasonable person on notice that he could be liable as Latimore suggests. See, e.g., Hobbs v. Evans, 924 F.2d 774, 775 (8th Cir.1991) (holding prison guard liable for violating prisoner's Eighth Amendment right to be free from attack by fellow prisoner because guard labeled prisoner an informant); Gobel v. Maricopa County, 867 F.2d 1201, 1206 (9th Cir.1989) (concluding that § 1983 action against prosecutor challenging pretrial conditions of confinement stated due process claim because pretrial detainee cannot be punished; absolute immunity defense was unavailable to prosecutor but qualified immunity was not considered); Marx v. Gumbinner, 855 F.2d 783, 791 (11th Cir.1988) (refusing absolute immunity to prosecutor where plaintiff claimed violation of due process rights for allegedly defamatory press release); Marrero v. City of Hialeah, 625 F.2d 499, 519 (5th Cir.1980) (holding plaintiff asserted due process claim for alleged defamatory statements resulting in alleged injury), cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981). Although " 'precise factual correspondence' with precedent" is not required for a right to be clearly established and an objectively reasonable state actor to know he is violating the right, J.H.H. v. O'Hara, 878 F.2d 240, 243 (8th Cir.1989) (quoting Lappe v. Loeffelholz, 815 F.2d 1173, 1177 (8th Cir.1987)), cert. denied, 493 U.S. 1072, 110 S.Ct. 1117, 107 L.Ed.2d 1024 (1990), the facts here are far too different and the "correspondence" with established law is far too remote for liability to attach. Widseth gave truthful answers based on the public record to the media's probing questions concerning a matter of vital public interest. By reference to the law clearly established then and now, Widseth's actions were objectively reasonable.

Further, the nature of Widseth's position as assistant prosecutor would not put him on notice of potential § 1983 liability for his actions in that role. We will not refuse qualified immunity to a § 1983 defendant for failing to protect a prisoner from harm at the hands of fellow inmates when that defendant had neither the...