Pinder v. Johnson

• Citation: 54 F.3d 1169
• Decision Date: 30 May 1995
• Docket Number: No. 93-2125,93-2125
• Parties: Carol L. PINDER, Individually and in her capacity as surviving Mother of her minor children, deceased; and as Personal Representative of the Estates of Kim Pinder, LaToya and Troy Brummel, Plaintiff-Appellee, v. Donald JOHNSON, PFC, Individually and in his official capacity, Defendant-Appellant, and Commissioner of Cambridge, in the City of Cambridge, Defendant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1169

54 F.3d 1169

63 USLW 2803

Carol L. PINDER, Individually and in her capacity as surviving Mother of her minor children, deceased; and as Personal Representative of the Estates of Kim Pinder, LaToya and Troy Brummel, Plaintiff-Appellee, v. Donald JOHNSON, PFC, Individually and in his official

capacity, Defendant-Appellant,

and

Commissioner of Cambridge, in the City of Cambridge, Defendant.

No. 93-2125.

United States Court of Appeals, Fourth Circuit.

Argued March 7, 1995.

Decided May 30, 1995.

ARGUED: Paul T. Cuzmanes, Wilson, Elser, Moskowitz, Edelman & Dicker, Baltimore, MD, for appellant. Barbara Gold, Baltimore, MD, for appellee. ON BRIEF: Samuel L. Israel, Weinberg & Green, Columbia, MD, for appellant. Philip H. Gold, Baltimore, MD, for appellee.

Before ERVIN, Chief Judge, RUSSELL, WIDENER, HALL, MURNAGHAN, WILKINSON, WILKINS, NIEMEYER, HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ, Circuit Judges, sitting in banc.

Reversed by published opinion. Judge WILKINSON wrote an opinion, in which Judge HALL, Judge WILKINS, Judge NIEMEYER, and Judge WILLIAMS concurred, and in which Judge WIDENER concurred in part, and in which Judge MOTZ concurred in Parts I-IV. Judge WIDENER wrote an opinion concurring in part. Judge MOTZ wrote an opinion concurring in Parts I-IV and concurring in the judgment. Judge HAMILTON wrote an opinion concurring in the judgment, in which Judge LUTTIG joined. Judge RUSSELL wrote a dissenting opinion, in which Chief Judge ERVIN, Judge MURNAGHAN, and Judge MICHAEL joined.

OPINION

WILKINSON, Circuit Judge:

We granted en banc review in this case to define the contours of qualified immunity under 42 U.S.C. Sec. 1983 when a plaintiff alleges an affirmative duty on the part of a police officer to protect citizens from the actions of a third party. The plaintiff in this action, Carol Pinder, seeks to impose civil liability against Officer Donald Johnson of the Cambridge, Maryland, Police Department for his failure to safeguard her children from the criminal depredations of plaintiff's ex-boyfriend. Pinder alleges that defendant's express promises to her created a "special relationship," which in turn gave rise to an affirmative duty to protect her under the Due Process Clause of the Fourteenth Amendment. We hold that no such due process right to protection was clearly established, DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), and that Officer Johnson is thus entitled to qualified immunity.

I.

The facts of this case are genuinely tragic. On the evening of March 10, 1989, Officer Johnson responded to a call reporting a domestic disturbance at the home of Carol Pinder. When he arrived at the scene, Johnson discovered that Pinder's former boyfriend, Don Pittman, had broken into her home. Pinder told Officer Johnson that when Pittman broke in, he was abusive and violent. He pushed her, punched her, and threw various objects at her. Pittman was also screaming and threatening both Pinder and her children, saying he would murder them all. A neighbor, Darnell Taylor, managed to subdue Pittman and restrain him until the police arrived.

Officer Johnson questioned Pittman, who was hostile and unresponsive. Johnson then placed Pittman under arrest. After confining Pittman in the squad car, Johnson returned to the house to speak with Pinder again. Pinder explained to Officer Johnson that Pittman had threatened her in the past, and that he had just been released from prison after being convicted of attempted arson at Pinder's residence some ten months earlier. She was naturally afraid for herself and her children, and wanted to know whether it would be safe for her to return to work that evening. Officer Johnson assured her that Pittman would be locked up overnight. He further indicated that Pinder had to wait until the next day to swear out a warrant against Pittman because a county commissioner would not be available to hear the charges before morning. Based on these assurances, Pinder returned to work.

That same evening, Johnson brought Pittman before Dorchester County Commissioner George Ames, Jr. for an initial appearance. Johnson only charged Pittman with trespassing and malicious destruction of property having a value of less than three hundred dollars, both of which are misdemeanor offenses. Consequently, Ames simply released Pittman on his own recognizance and warned him to stay away from Pinder's home.

Pittman did not heed this warning. Upon his release, he returned to Pinder's house and set fire to it. Pinder was still at work, but her three children were home asleep and died of smoke inhalation. Pittman was later arrested and charged with first degree murder. He was convicted and is currently serving three life sentences without possibility of parole.

Pinder brought this action for herself and for the estates of her three children, seeking damages under 42 U.S.C. Sec. 1983 and 42 U.S.C. Sec. 1985, as well as state law theories, against the Commissioners of Cambridge and Officer Johnson. She alleged, inter alia, that defendants had violated their affirmative duty to protect her and her children, thereby depriving them of their constitutional right to due process under the Fourteenth Amendment. Defendant Johnson moved for summary judgment, arguing that he had no constitutionally-imposed affirmative duty to protect the Pinders and that he was shielded from liability by the doctrine of qualified immunity. The district court, however, refused to dismiss plaintiff's due process claim, finding that Officer Johnson was not entitled to qualified immunity. Defendant brought an interlocutory appeal under Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). A divided panel of this court affirmed, finding that Pinder had stated a cognizable substantive due process claim and that Johnson did not have a valid immunity defense. Pinder v. Johnson, 33 F.3d 368 (4th Cir.1994). We granted rehearing en banc, and now reverse the judgment of the district court.

II.

The basic principles of qualified immunity are well settled. The purpose of a qualified immunity defense under Sec. 1983 is to limit the deleterious effects that the risks of civil liability would otherwise have on the operations of government. See Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987); Swanson v. Powers, 937 F.2d 965, 967 (4th Cir.1991), cert. denied, 502 U.S. 1031, 112 S.Ct. 871, 116 L.Ed.2d 777 (1992). Discretionary decisions by government actors inevitably impact the lives of private individuals, sometimes with harmful effects. Moreover, such decisions are inescapably imperfect. Especially in the context of police work, decisions must be made in an atmosphere of great uncertainty. Holding police officers liable in hindsight for every injurious consequence of their actions would paralyze the functions of law enforcement. Torchinsky v. Siwinski, 942 F.2d 257, 260 (4th Cir.1991). Qualified immunity thus allows officials the freedom to exercise fair judgment, protecting "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986).

Qualified immunity under Sec. 1983 shields officials from civil liability unless their actions violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The linchpin of qualified immunity is objective reasonableness. Anderson, 483 U.S. at 639, 107 S.Ct. at 3038-39; Rowland v. Perry, 41 F.3d 167, 172-73 (4th Cir.1994); Mitchell v. Rice, 954 F.2d 187, 190 (4th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 299, 121 L.Ed.2d 222 (1992). So long as the officer's actions, viewed from the perspective of the officer at the time, can be seen within the range of reasonableness, then no liability will attach. Slattery v. Rizzo, 939 F.2d 213, 216 (4th Cir.1991).

Important to this reasonableness inquiry is whether the rights alleged to have been violated were clearly established at the time of the challenged actions. Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. If the law supporting the allegedly violated rights was not clearly established, then immunity must lie. Anderson, 483 U.S. at 640, 107 S.Ct. at 3039; Tarantino v. Baker, 825 F.2d 772, 774 (4th Cir.1987). Where the law is clearly established, and where no reasonable officer could believe he was acting in accordance with it, qualified immunity will not attach. The purpose of this doctrine is to ensure that police officers and other government actors have notice of the extent of constitutional restrictions on their behavior. Davis v. Scherer, 468 U.S. 183, 195, 104 S.Ct. 3012, 3019-20, 82 L.Ed.2d 139 (1984). Thus, qualified immunity prevents officials from being blindsided by liability derived from newly invented rights or new, unforeseen applications of pre-existing rights. In short, officials cannot be held to have violated rights of which they could not have known. Gooden v. Howard County, 954 F.2d 960, 968 (4th Cir.1992) (en banc).

Here, the question is simply whether the due process right Pinder claims was clearly established at the time of her dealings with Johnson. This inquiry depends upon an assessment of the settled law at the time, not the law as it currently exists. DiMeglio v. Haines, 45 F.3d 790, 794 (4th Cir.1995); Akers v. Caperton, 998 F.2d 220, 227 (4th Cir.1993). Also, the rights Pinder asserts must have been clearly established in a particularized and relevant sense, not merely as an overarching entitlement to due process. Anderson, 483 U.S. at 640, 107 S.Ct. at 3039; Beardsley v. Webb, 30 F.3d 524, 530 (4th Cir.1994). It is important not to be over-specific--there need not be a prior case directly on all fours with the facts presented to the official--but "in light of the pre-existing law...