dissenting:
I respectfully dissent from the decision that the “constitutional right” identified by the Court was “clearly established” at the time of the acts committed by defendant Johnson.
The sole issue on this appeal is whether the defendant is protected by qualified immunity from the suit against him individually for violation of plaintiffs constitutional rights. The case against defendant in his official capacity is not before the court, because the denial of summary judgment in that case is not appealable.
The defendant is immune from trial if the undisputed facts reveal that he did “not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 451 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). To be clearly established the right must be sufficiently clear that a reasonable person would know that his acts would violate that right, that “the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987).
The constitutional right asserted on these facts could not be entirely clear, if for no other reason than it took a lengthy, efficient, well-crafted, scholarly analysis of the case law by the district court to find there was a constitutional right, and another lengthy analysis to show that it was “clearly established.”
Whether or not there is a constitutional right as developed by the district court and this Court, it surely was not “clearly established” in 1989. In deciding that the law was clearly established, the district court relied heavily on the analytical approach in Jensen v. Conrad, 747 F.2d 185 (4th Cir.1984), cert. denied, 470 U.S. 1052, 105 S.Ct. 1754, 84 L.Ed.2d 818 (1985). But the Supreme Court in DeShaney v. Winnebago Soc. Serv., 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), affirmed a Seventh Circuit decision which specifically rejected the position endorsed by the dicta in Jensen “that once the *375State learns that a particular child is in danger of abuse from third parties and actually undertakes to protect him from that danger, a ‘special relationship’ arises between it and the child which imposes an affirmative constitutional duty to provide adequate protection.” 489 U.S. at 194, 109 S.Ct. at 1002.
DeShaney was a ease decided just 18 days before the defendant’s actions in this case. The Supreme Court had taken the ease “[because of the inconsistent approaches taken by the lower courts in determining when, if ever, the failure of a state or local governmental entity or its agents to provide an individual with adequate protective services constitutes a violation of the individual’s due process rights.” 489 U.S. at 194,109 S.Ct. at 1002. DeShaney flatly said that “a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.” 489 U.S. at 197, 109 S.Ct. at 1004. It then addressed the contention that a duty may arise out of certain “special relationships” created or assumed by the State with respect to particular individuals.
Petitioners argue that such a ‘special relationship’ existed here because the State knew that Joshua faced a special danger of abuse at his father’s hands, and specifically proclaimed, by word and by deed, its intention to protect him against that danger. Id., at 18-20. Having actually undertaken to protect Joshua from this danger — which petitioners concede the State played no part in creating — the State acquired an affirmative ‘duty,’ enforceable through the Due Process Clause, to do so in a reasonably competent fashion. Its failure to discharge that duty, so the argument goes, was an abuse of governmental power, that so ‘shocks the conscience,’ Rochin v. California, 342 U.S. 165, 172 [72 S.Ct. 205, 209, 96 L.Ed. 183] (1952), as to constitute a substantive due process violation.
489 U.S. at 197, 109 S.Ct. at 1004.
The Supreme Court then said without equivocation: “We reject this argument.” This decision should foreclose argument that the law of “special relationships” was clearly established in March, 1989.
This Court, later in 1989, decided a case involving the alleged failure of the United States to protect a murdered witness in a criminal trial. Working with DeShaney, which had been decided earlier in the year, this Court affirmed the grant of qualified immunity with these words: “we rest our disposition of this issue on our holding that Fifth Amendment substantive due process protects the liberty interests only of persons affirmatively restrained by the United States from acting on their own behalf.” Piechowicz v. United States, 885 F.2d 1207, 1215 (4th Cir.1989). In a footnote, the Court reflected on the uncertainty of the “special relationship” law. “The availability of qualified immunity for State and federal agents operating in a ‘special relationship’ with a citizen is most unclear under current case law.” 885 F.2d at 1215, fn. 12. If the “special relationship” law was unclear to this Court in 1989, it could not have been clear to the defendant at that time.
This case rests on the State’s duty in a noncustodial situation. The district court itself, however, said that DeShaney left two issues unresolved: first, whether there are any noncustodial circumstances in which the state’s enhancement of risk of injury to a plaintiff violates the due process clause; and second, assuming that such circumstances exist, how large a role the state must play in enhancement of the danger before it assumes a corresponding constitutional duty to protect. Finder v. Commissioners of Cambridge, 821 F.Supp. 376, 388 (D.Md.1993). Later the district court accurately stated: “An exact test under DeShaney for what level of government involvement triggers this due process right, however, is not available.” 821 F.Supp. at 394. Unresolved issues and inexact tests do not adorn the landscape of “clearly established” constitutional rights.
Unfortunately, perhaps, the first plaintiff to assert a good cause of action against an individual defendant for violation of a constitutional right, previously undefined, must go away empty handed, but that is the law and the defendant is entitled to the benefit of it. The law of qualified immunity says simply that a defendant should not be individually hable for his transgression of a person’s con*376stitutional rights, unless he could have known that the person had such a right that his actions would violate. A review of the cases available in March 1989 does not reveal any-established “special relationships” law that would apply to the facts of this case, one way or the other. At the very most, it would be a guide as to the direction in which that law might be headed.
In my judgment, the defendant was entitled to summary judgment on his qualified immunity defense.