Santamorena v. GA Military College , 147 F.3d 1337 ( 1998 )


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  •                                                                                  PUBLISH
    
                     IN THE UNITED STATES COURT OF APPEALS
                            FOR THE ELEVENTH CIRCUIT
    
                                 -------------------------------------------
                                              No. 97-9214                                FILED
                                --------------------------------------------
                                                             U.S. COURT OF APPEALS
                               D. C. Docket No. 1:97-CV-4-JOF ELEVENTH CIRCUIT
                                                                                         2/19/03
                                                                                  THOMAS K. KAHN
    YASMIN SANTAMORENA, individually and as next                                      CLERK
    friend of H.S., a minor,
    
                                                                   Plaintiff-Appellant,
    
          versus
    
    GEORGIA MILITARY COLLEGE,
    PETER J. BOYLAN, General, et al.,
                                                                   Defendants-Appellees.
    
    
    
    
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                      Appeal from the United States District Court
                         for the Northern District of Georgia
    
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                                           (July 31, 1998)
    
    Before EDMONDSON and BIRCH, Circuit Judges, and LAWSON*, District Judge.
    
    ____________
    
    *     Honorable Hugh Lawson, U.S.               District Judge for the Middle District of
          Georgia, sitting by designation.
    EDMONDSON, Circuit Judge:
    
    
    
         Plaintiff appeals the district court’s dismissal of her claim
    
    -- a claim brought on behalf of Plaintiff and Plaintiff’s minor
    
    daughter -- that Defendants, Georgia Military College (“GMC”)
    
    and several of its officials, violated Plaintiff’s and her
    
    daughter’s substantive due process rights. Because we agree
    
    with the district court that the individual Defendants are entitled
    
    to qualified immunity, we affirm.1
    
    
    
    
         1
          Plaintiff originally sued both the institution, Georgia
    Military College, and several of its officials (in both their
    official and individual capacities). The district court granted
    Defendants’ motion to dismiss, concluding that the
    institution (and the Defendants sued in their official
    capacities) was entitled to sovereign immunity and that the
    Defendants, sued in their individual capacities, were entitled
    to qualified immunity. Plaintiff appeals only the
    determination by the district court that the individual
    Defendants were entitled to qualified immunity.
                                     2
                              Background
    
    
    
         GMC is a state-run institution that serves as both a high
    
    school and a college. Plaintiff’s daughter, H.S., was a 13-year-
    
    old high school freshman enrolled at GMC.2 According to GMC
    
    policy, high school freshmen were required to stay on campus
    
    and to live in the barracks for the first four weeks of school.
    
    During this period, only the high school was in session; but
    
    GMC’s college football team was on campus for pre-season
    
    training.
    
         Before enrolling H.S. at GMC, H.S.’s parents inquired about
    
    security on the campus. In response to these concerns, several
    
    school officials represented to H.S.’s parents that H.S. would be
    
    adequately protected. School officials specifically told H.S.’s
    
    parents these things: that H.S. would be housed in a room near
    
    
    
        H.S. was one of only two female students enrolled in
         2
    
    
    GMC’s high school program.
                                    3
    a school official’s -- Defendant Major Banks’s -- living quarters;
    
    that an adult supervisor would be assigned to H.S.’s barracks
    
    and available at all times; that a piece of sliding cardboard
    
    would be placed on the inside of the observation window in the
    
    door to H.S.’s room so that she could observe visitors; that
    
    security personnel would be present in the barracks to monitor
    
    visitors; and that a nightly bed check would be conducted to
    
    ensure that all students were in their rooms by 10:00 p.m.
    
         About one week after H.S. arrived at GMC, she and her
    
    roommate (the other female high school student at GMC) were
    
    moved to a room in the opposite wing from the room in which
    
    the two were originally placed. No other school personnel or
    
    students lived in that wing of the barracks, and this new room
    
    was some distance from Major Banks’s living quarters. In
    
    addition, the new room had a wooden board nailed to the
    
    observation window of the door -- not a piece of sliding
    
    
    
                                    4
    cardboard -- which prevented H.S. from observing and
    
    identifying visitors.
    
         On 1 September 1995, after being moved to the new room,
    
    H.S. was awakened by a knock on her door. H.S. opened the
    
    door and allowed GMC college football player, Kareem Holmes,
    
    to enter her room. Holmes then raped H.S.
    
         Plaintiff, the parent of H.S., asserts that on the night of the
    
    attack, no security personnel were present to monitor the
    
    barracks, no bed check was conducted, and all supervisory
    
    responsibility for the barracks had been delegated to Defendant
    
    Major Banks. Major Banks was left in charge because Lt. Diane
    
    Ortega, the official actually assigned to supervise the main
    
    barracks and the female hall on the night of the incident, was
    
    not on campus.
    
         Plaintiff filed suit under 42 U.S.C. § 1983. Plaintiff’s claim
    
    is based on the rape of H.S. by a private third party on the
    
    campus of GMC while H.S. was a resident high school student
    
                                     5
    there. Plaintiff alleges that GMC and GMC officials -- by failing
    
    to protect H.S. from harm by a private actor (Holmes) -- violated
    
    H.S.’s Fourteenth Amendment rights to personal security and
    
    to physical integrity and violated Plaintiff’s related right to
    
    maintain family integrity.3 The district court dismissed the
    
    complaint, before discovery, concluding in relevant part that
    
    the individual Defendants were entitled to qualified immunity.
    
    Plaintiff appeals the dismissal of her complaint against the
    
    individual Defendants -- General Peter J. Boylan, Colonel
    
    Frederick Van Horn, Major Walter Banks, and Sergeant Larry
    
    Swint4 -- challenging the district court’s conclusion that these
    
    Defendants were entitled to qualified immunity.
    
    
    
    
         3
          The alleged constitutional violations are premised on the
    existence of a constitutional duty -- owed to H.S. (and
    secondarily to Plaintiff) by the school officials -- to protect H.S.
    from private third parties.
        All individual Defendants were teachers or
         4
    
    
    administrators at GMC at the time of the incident.
                                      6
                               Discussion
    
    
    
         “Qualified   immunity     protects    government      officials
    
    performing discretionary functions from civil trials . . . and from
    
    liability if their conduct violates no clearly established statutory
    
    or constitutional rights of which a reasonable person would
    
    have known.” Lassiter v. Alabama A & M Univ., 
    28 F.3d 1146
    ,
    
    1149 (11th Cir. 1994) (en banc) (internal quotations and citations
    
    omitted).5 To overcome this immunity, Plaintiff has the burden
    
    of pointing to case law which “pre-date[s] the offic[ial]’s alleged
    
    improper conduct, involve[s] materially similar facts, and ‘truly
    
    compel[s]’ the conclusion that the plaintiff had a right under
    
    
    
    
         No party disputes that Defendants were performing
         5
    
    
    discretionary functions in relation to the events of this case.
                                     7
    federal law.”6 Ensley v. Soper, 
    142 F.3d 1402
    , 1406 (11th Cir.
    
    1998) (citing Lassiter, 28 F.3d at 1150).
    
         Defendants “assert[ed] the defense of qualified immunity
    
    in a Rule 12(b)(6) motion to dismiss, and they are entitled to
    
    qualified immunity at this stage in the proceedings if [Plaintiff’s]
    
    complaint fails to allege a violation of a clearly established
    
    constitutional right.” Williams v. Alabama State Univ., 
    102 F.3d 1179
    , 1182 (11th Cir. 1997). Whether the complaint alleges the
    
    violation of a clearly established right is a question of law,
    
    
    
         6
          This statement summarizes the usual rule and the law
    that applies in this case. We can imagine an exceptional
    case where “the words of a federal statute or federal
    constitutional provision will be specific enough to establish
    the law applicable to particular circumstances clearly and to
    overcome qualified immunity even in the absence of case
    law,” Lassiter, 28 F.3d at 1150 n.4, or where “a general
    constitutional rule already identified in the decisional law
    [applies] with obvious clarity to the specific conduct in
    question,” United States v. Lanier, 
    117 S. Ct. 1219
    , 1227
    (1997). But these exceptional cases rarely arise. And we are
    not faced with such an exceptional case: given the
    circumstances of this case, the Due Process Clause does not
    provide the essential, obvious clarity.
                                     8
    which we review de novo. See id. In deciding this case, we
    
    accept all facts alleged in the complaint as true and draw all
    
    reasonable inferences in favor of the nonmoving party, Plaintiff.
    
    See id.
    
         Plaintiff recognizes that her complaint, which is premised
    
    on a violation of the Due Process Clause,7 is based on the rape
    
    of her daughter, not by a school official, but by a private third
    
    party. And, “nothing in the language of the Due Process Clause
    
    itself requires the State to protect the life, liberty, and property
    
    of its citizens against invasion by private actors.” DeShaney v.
    
    Winnebago County Dep’t of Social Servs., 
    109 S. Ct. 998
    , 1003
    
    (1989). “As a general matter, . . . a State’s failure to protect an
    
    
    
    
         The Due Process Clause of the Fourteenth Amendment
         7
    
    
    provides, in pertinent part, that “[n]o State shall . . . deprive
    any person of life, liberty, or property, without due process of
    law.” U.S. Const. amend. XIV, § 1.
                                     9
    individual against private violence simply does not constitute
    
    a violation of the Due Process Clause.” Id. at 1004.8
    
         But “in certain limited circumstances the Constitution
    
    imposes upon the State affirmative duties of care and
    
    protection with respect to particular individuals.” Id. Where
    
    “the State takes a person into its custody and holds him there
    
    against his will . . . the Constitution imposes upon [the State] a
    
    corresponding duty to assume some responsibility for his
    
    safety and general well-being.” Id. at 1005. Thus, a duty may
    
    be imposed on States to protect involuntarily committed mental
    
    patients, prisoners, and involuntarily placed foster children.
    
    See, e.g., Youngberg v. Romeo, 
    102 S. Ct. 2452
     (1982) (mental
    
    patients); Estelle v. Gamble, 
    97 S. Ct. 285
     (1976) (prisoners);
    
    
    
    
         8
          We note that the absence of a constitutional duty to
    protect does not negate the possibility that state law duties
    might be owed to individuals by government actors: state
    tort actions might apply.
                                    
    10 Taylor v
    . Ledbetter, 
    818 F.2d 791
     (11th Cir. 1987) (foster
    
    children).
    
         The question presented in this case is whether, given the
    
    status of the preexisting law, the Defendants, at the pertinent
    
    time, clearly owed Plaintiff or H.S. some constitutional duty to
    
    protect H.S. based on the voluntary, custodial relationship
    
    between H.S. and GMC. So, we consider cases where we have
    
    talked about the possibility of a constitutional duty when the
    
    State has a “special relationship” with either the victim or the
    
    perpetrator. See Wyke v. Polk County Sch. Bd., 
    129 F.3d 560
    
    (11th Cir. 1997); Mitchell v. Duval County Sch. Bd., 
    107 F.3d 837
    
    (11th Cir. 1997); Cornelius v. Town of Highland Lake, 
    880 F.2d 348
     (11th Cir. 1989).
    
         “The contours of what constitutes a ‘special relationship’
    
    between a [State institution], acting through its officials, and its
    
    citizens are hazy and indistinct.” Wideman v. Shallowford
    
    Comm. Hosp., Inc., 
    826 F.2d 1030
    , 1035 (11th Cir. 1987) (quoting
    
                                     11
    Ellsworth v. City of Racine, 
    774 F.2d 182
    , 185 (7th Cir. 1985)).
    
    During oral argument, Plaintiff’s counsel acknowledged that
    
    whether a voluntary, instead of an involuntary, custodial
    
    arrangement between the State and a citizen could give rise to
    
    a special relationship, and thus a constitutional duty, remains
    
    “unclear” in this circuit.   But still Plaintiff argues that the
    
    preexisting law was somehow so clearly established that
    
    Defendants should not be protected by qualified immunity.
    
        Plaintiff points us to three cases, which Plaintiff claims
    
    clearly established that GMC owed a constitutional duty to H.S.:
    
    Taylor v. Ledbetter, 
    818 F.2d 791
     (11th Cir. 1987); Cornelius v.
    
    Town of Highland Lake, 
    880 F.2d 348
     (11th Cir. 1989); and Spivey
    
    v. Elliott, 
    29 F.3d 1522
     (11th Cir. 1994). None of these cases,
    
    however, provide the “bright line” necessary to delineate the
    
    concrete circumstances in which officials will violate the
    
    Constitution. See Lassiter, 28 F.3d at 1150 (“If case law, in
    
    factual terms, has not staked out a bright line, qualified
    
                                   12
    immunity almost always protects the defendant.”) (internal
    
    quotations and citations omitted).
    
         When considering whether the law applicable to
         certain facts is clearly established, the facts of cases
         relied upon as precedent are important. The facts
         need not be the same as the facts of the immediate
         case. But they do need to be materially similar. . . .
         Public officials are not obligated to be creative or
         imaginative in drawing analogies from previously
         decided cases.9
    
    Lassiter, 28 F.3d at 1150 (quoting Adams v. St. Lucie County
    
    Sheriff’s Dep’t, 
    962 F.2d 1563
    , 1575 (11th Cir. 1992) (Edmondson,
    
    J., dissenting), approved en banc, 
    998 F.2d 923
     (11th Cir. 1993)).
    
    
    
    
         9
          Plaintiff argues that this circuit’s qualified immunity
    analysis, generally requiring materially similar cases to
    establish clearly a constitutional right, is no longer good law
    after Lanier, 
    117 S. Ct. 1219
    . We have already reaffirmed our
    qualified immunity analysis in the light of Lanier. See
    Jenkins v. Talladega City Bd. of Educ., 
    115 F.3d 821
    , 825 n.3
    (11th Cir. 1997) (en banc) (specifically discussing the impact
    of Lanier on the law of the circuit). “The principles of
    qualified immunity set out in Lassiter v. Alabama A & M
    Univ., . . . continue to be the guiding directives for deciding
    cases involving the question of a state actor’s entitlement to
    qualified immunity in this circuit.” Id. at 823.
                                    13
        Given the facts, the cases relied on by Plaintiff are not
    
    materially similar to the case before us and would have
    
    required Defendants to draw inferences -- inferences of highly
    
    debatable validity -- to reach the conclusion that H.S. (and
    
    secondarily Plaintiff) was owed a constitutional duty. These
    
    cases do not address the situation in this case: where an
    
    individual is voluntarily in the custody of the State10 or where
    
    the State represented that it would provide the individual with
    
    security. Cf. Taylor, 
    818 F.2d 791
     (The court wrote these words
    
    about involuntary custody in foster homes: “The liberty interest
    
    in this case is analogous to the liberty interest in Youngberg.
    
    In both cases, the state involuntarily placed the person in a
    
    custodial environment, and in both cases, the person is unable
    
    to seek alternative living arrangements.”) (emphasis added);
    
    
        10
          We understand that presence at a custodial school may
    not be a voluntary decision on the part of the minor student.
    But only restraints of freedom imposed by the State, not by a
    student’s parents, can give rise to a constitutional duty
    requiring the State to protect that student.
                                   14
    Cornelius, 
    880 F.2d 348
    ;11 Spivey, 
    29 F.3d 1522
    , withdrawn,
    
    
         11
           In Cornelius, the court determined that a special
    relationship might exist between the town and a town
    employee, the town clerk, where the town knowingly placed
    the town clerk in danger by allowing poorly supervised
    prison labor to work near the town clerk’s place of
    employment, the town hall. Later panels have questioned the
    survival of Cornelius, and its special danger theory, following
    the Supreme Court’s decision in Collins v. City of Harker
    Heights, 
    112 S. Ct. 1061
    , 1070-71 (1992) (employment
    relationship alone cannot give rise to constitutional duty to
    protect). See Mitchell, 107 F.3d at 839 n.3 (“Cornelius may
    not have survived Collins . . . .”); Wright v. Lovin, 
    32 F.3d 538
    ,
    541 n.1 (11th Cir. 1994) (same). Because Cornelius has
    significantly different facts and its validity has been
    expressly questioned in our later opinions, we cannot let
    Cornelius be the case that clearly established H.S.’s right to
    the State’s protection: Cornelius did not clarify the law to the
    point that all reasonable school officials in Defendants’ place
    must have known they were subject to a constitutional duty
    to protect H.S.
          The confusion created by the Supreme Court’s
    intervening decision in Collins, and by later opinions by this
    court questioning Cornelius, presents the legal possibility
    that law, which may have once been clear, can become
    unclear later. The nature of the law is not always to move
    from unsettled to settled. Although one of our decisions may
    not be expressly overruled, later cases -- at least Supreme
    Court cases -- may bring its reasoning or holding into such
    doubt that the elements set out in the case are no longer
    clearly established for purposes of qualified immunity.
          Given the confusion surrounding the soundness of
                                    15
    Spivey v. Elliott, 
    41 F.3d 1497
     (11th Cir. 1995) (Spivey II).12 Thus,
    
    these cases did not (and do not today) clearly establish that
    
    Defendants owed Plaintiff or H.S. a federal constitutional duty
    
    to protect H.S. from the incident in this case.
    
         Given their facts, the cited precedents gave much too little
    
    guidance. We cannot properly require Defendants in this case
    
    to have drawn inferences when the facts of the existing cases
    
    were considerably different from the circumstances facing
    
    these particular Defendants.
    
    
    Cornelius and considering its facts, we can locate no case
    (and Plaintiff has pointed us to no case) that is sufficiently
    factually similar to this case and that would have made it
    clear to Defendants at the time (or to us now) that Defendants
    placed H.S. in a position of danger which imposed upon them
    a constitutional duty to protect H.S.
         12
           Plaintiff relies on Spivey, 
    29 F.3d 1522
    . But the portion
    of that opinion on which Plaintiff relies was withdrawn. See
    Spivey II, 41 F.3d at 1499 (“[I]n the interest of efficiency and
    collegiality on this Court, where there are differing views as
    to the substantive right, this panel has chosen to withdraw all
    of its prior opinion which relates to whether the complaint
    alleges a constitutional right so that the opinion will serve as
    no precedent on that issue.”).
                                     16
         Furthermore, some preexisting case law may have
    
    particularly suggested to Defendants (or to be more precise, to
    
    every reasonable school official standing in Defendants’ place)
    
    that no duty would arise in a voluntary situation, despite
    
    representations by Defendants that protection would be
    
    provided. See DeShaney, 109 S.Ct. at 1005-06 (“The affirmative
    
    duty to protect arises not from the State’s knowledge of the
    
    individual’s predicament or from its expressions of intent to
    
    help him, but from the limitation which it has imposed on his
    
    freedom to act on his own behalf.”) (emphasis added). “Unless
    
    a government agent’s act is so obviously wrong, in the light of
    
    preexisting law, that only a plainly incompetent officer or one
    
    who was knowingly violating the law would have done such a
    
    thing, the government actor has immunity from suit.” Lassiter,
    
    28 F.3d at 1149.    Defendants were not obviously violating
    
    Plaintiff’s or H.S.’s clearly established rights in this case.
    
    
    
                                    17
        Because Plaintiff’s complaint fails to allege the violation of
    
    a clearly established constitutional right, the district court
    
    correctly granted Defendants’ motions to dismiss on grounds
    
    of qualified immunity. We, given the status of the preexisting
    
    law, view it as obvious that Defendants are entitled to qualified
    
    immunity.
    
        But we do acknowledge that the existence or nonexistence
    
    of a constitutional right (or duty) in this case presents a
    
    perplexing question: a question that we -- in part, because it
    
    cannot be easily answered -- decline to answer at this time. To
    
    overcome qualified immunity, Plaintiff must show both (1) that
    
    Defendants violated a federal constitutional right and (2) that
    
    the right was already clearly established at the time of the
    
    violation. See Spivey II, 41 F.3d at 1499. “[A] negative decision
    
    on either prevents the plaintiff from going forward.” Id. So, to
    
    answer the other question is unnecessary to decide the case.
    
    Thus, “[o]nce there has been a determination that there is no
    
                                   18
    ‘clearly established’ right, the parties can accomplish little in
    
    pursuing the question of whether there is a right at all. . . .
    
    [because t]hose who differ with the decision of the court could
    
    write it off as dictum.” Id.13
    
    
         13
            We have already stated that “[t]he law cannot be
    established by dicta. Dicta is particularly unhelpful in
    qualified immunity cases where we seek to identify clearly
    established law.” Hamilton v. Cannon, 
    80 F.3d 1525
    , 1530
    (11th Cir. 1996); see also In re United States, 
    60 F.3d 729
    , 731
    (11th Cir. 1995) (“Statements of dicta are not part of the law of
    the case.”); United States v. Teague, 
    953 F.2d 1525
    , 1535 (11th
    Cir. 1992)(“[D]icta is inherently unreliable for what a court will
    do once faced with a question squarely and once its best
    thoughts, along with briefs and oral argument, are focused
    on the precise issue.”) (Edmondson, J., concurring). The
    reasons for avoiding dicta were briefly expressed by the
    Supreme Court early in our nation’s jurisprudence:
          It is a maxim, not to be disregarded, that general
          expressions, in every opinion, are to be taken in
          connection with the case in which those
          expressions are used. If they go beyond the case,
          they may be respected, but ought not to control the
          judgment in a subsequent suit, when the very point
          is presented for decision. The reason of this maxim
          is obvious. The question actually before the court
          is investigated with care, and considered in its full
          extent. Other principles which may serve to
          illustrate it, are considered in their relation to the
          case decided, but their possible bearing on all other
                                     19
         A Supreme Court opinion recently suggested that the
    
    “better approach” -- in cases involving the defense of qualified
    
    immunity -- might be to decide whether the contended for
    
    constitutional right exists at all before determining whether the
    
    right was, at the pertinent time, clearly established. See County
    
    of Sacramento v. Lewis, 
    118 S. Ct. 1708
    , 1714 n.5 (1998) (citing
    
    Siegert v. Gilley, 
    111 S. Ct. 1789
    , 1793 (1991)) (“[T]he better
    
    approach to resolving cases in which the defense of qualified
    
    immunity is raised is to determine first whether the plaintiff has
    
    alleged a deprivation of a constitutional right at all. Normally,
    
    it is only then that a court should ask whether the right
    
    allegedly implicated was clearly established at the time of the
    
    events in question.”) (emphasis added).
    
         We do not understand this footnote as an absolute
    
    requirement that lower courts must always follow this
    
    
    
        cases is seldom completely investigated.
    Cohens v. Virginia, 
    6 Wheat. 264
    , 399 
    5 L. Ed. 257
     (1821).
                                    20
    “normally” “better approach.” In County of Sacramento, the
    
    district court decided the case strictly on qualified immunity
    
    grounds, that is, on the ground of the unsettled nature of the
    
    law; but the Supreme Court never said the district court erred.
    
    And if the Supreme Court intended to impose an absolute
    
    requirement on lower courts always to address the merits of
    
    constitutional issues even where qualified immunity obviously
    
    applies and readily resolves the case, we believe the Supreme
    
    Court would have said so more directly.14
    
    
        14
           Several separate opinions were written in County of
    Sacramento. As we understand it, four Justices did not
    endorse footnote 5 or expressly stressed that footnote 5 was
    no blanket rule. See County of Sacramento, 118 S.Ct. at 1722
    (Breyer, J., concurring) and 118 S.Ct. at 1723 (Stevens, J.,
    concurring) (specifically discussing footnote 5); see also 118
    S.Ct. at 1723-25 (Scalia, J., with whom Thomas, J., joins,
    concurring in judgment only). Although a majority of the
    Justices did join in Justice Souter’s opinion (including
    footnote 5) for the Court, we cannot say that footnote 5 is
    doubtlessly a holding of the Court. See generally Crawford-
    El v. Britton, 
    118 S. Ct. 1584
    , 1590 (1998) (not everything set
    forth in an opinion is a holding of the case).
          We do recognize, however, that the Supreme Court has
    the power to supervise lower federal courts through special
                                  21
         At least in situations like this one -- (1) where the existence
    
    of a constitutional right (or duty) presents a perplexing
    
    question, (2) where the alleged right obviously was not already
    
    clearly established, and (3) where the qualified immunity
    
    determination does end the whole case -- it remains
    
    appropriate, and sometimes preferable, to stop at the
    
    determination that the right, if any, was not clearly
    
    established.15 “A fundamental and longstanding principle of
    
    
    statements that go beyond the holding of a case; and the
    Supreme Court has, on occasion, invoked such supervisory
    powers. See, e.g., Lowenfield v. Phelps, 
    108 S. Ct. 546
    , 551
    n.2 (1988); Cheff v. Schnackenberg, 
    86 S. Ct. 1523
    , 1526
    (1966). In footnote 5, the supervisory powers are not
    specifically invoked.
          But even if footnote 5 is a binding judicial
    pronouncement or a binding supervisory instruction, we --
    given the footnote’s own words -- do not understand it to be
    a strict rule with no exceptions.
         15
           We do not say that the presence of these three features in the
    case at hand distinguishes it from County of Sacramento. One could
    argue that the same features were presented by County of
    Sacramento. We just say that these features make the case a fit
    subject for judicial discretion when it comes to fashioning the
    analysis: the kind of cases in which sometimes to decide the
                                     22
    judicial   restraint   requires   that   courts   avoid   reaching
    
    constitutional questions in advance of the necessity of deciding
    
    them.” Lyng v. Northwest Indian Cemetery Protective Ass’n,
    
    
    108 S. Ct. 1319
    , 1323 (1988); see also Jean v. Nelson, 
    105 S. Ct. 2992
    , 2997 (1985); In re Snyder, 
    105 S. Ct. 2874
    , 2880 (1985);
    
    Superintendent, Massachusetts Correctional Instit., Walpole v.
    
    Hill, 
    105 S. Ct. 2768
    , 2772 (1985); Spivey II, 41 F.3d at 1499
    
    (decided after Siegert v. Gilley) (“[A] determination of whether
    
    a right is clearly established will always require no more, and
    
    will often require less, analysis than is required to decide
    
    whether the allegedly violated constitutional right actually
    
    exists in the first place. Moreover, deciding the case on the
    
    ‘clear establishment’ element comports with the well-
    
    established    principle   disfavoring     reaching   substantive
    
    constitutional issues if a case can be resolved on other
    
    
    
    constitutional issue and sometimes not, depending on a wide array
    of other considerations.
                                      23
    grounds.”). “[T]his self-imposed limitation on the exercise of
    
    the Court’s jurisdiction has an importance to the institution that
    
    transcends the significance of particular controversies.” City
    
    of Mesquite v. Aladdin’s Castle, Inc., 
    102 S. Ct. 1070
    , 1077
    
    (1982).
    
         The Supreme Court looked at these arguments for
    
    avoiding the merits of constitutional issues when the Court, in
    
    County of Sacramento, said that a decision on those merits was
    
    normally the “better approach.” Still we conclude the Supreme
    
    Court did not mean to nullify all the traditional restraint
    
    principles or to take away all our discretion to analyze
    
    particular qualified immunity cases, involving perplexing
    
    constitutional issues, without first deciding whether the
    
    constitutional right exists. We think the Supreme Court was
    
    telling us that, notwithstanding the usual restraint arguments,
    
    sometimes the courts can and should decide the constitutional
    
    
    
                                    24
    issues; and we will but -- because we believe the Supreme
    
    Court has left us with some discretion -- not today.16
    
        Because we conclude that Plaintiff and H.S. were owed no
    
    clearly established constitutional duty by Defendants at the
    
    time of the incident, Defendants are entitled to qualified
    
    immunity.
    
        AFFIRMED.
    
    
    
    
        16
          Refraining (until truly necessary) from deciding -- in
    qualified immunity cases -- the more perplexing federal law
    issues will not inevitably preclude the law in due course from
    becoming clearly established. Suits seeking injunctions,
    suits against local governments, and certain criminal
    proceedings can settle the law. And, in circumstances where
    the right allegedly violated is one based in federal statute,
    Congress can add the necessary clarity to the law. Thus, our
    avoidance of a constitutional issue in a specific case, like
    this one, does not prevent the law from ever becoming
    clearly established; and if we chose to address the
    perplexing constitutional issue, we would not necessarily
    add clarity to the law because such a decision could be
    viewed as mere uncontrolling dicta.
                                   25