concurring in the judgment:
This appeal involves a straightforward question of qualified immunity: whether, at the time of Officer Johnson’s conduct, his 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). In light of the Supreme Court’s decision in DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) and cases which held that a state’s affirmative duty to protect could arise only in a custodial situation, see; e.g., Harpole v. Arkansas Dep’t of Human Servs., 820 F.2d 923, 927 (8th Cir.1987); Estate of Gilmore v. Buckley, 787 F.2d 714, 722 (1st Cir.), cert. denied, 479 U.S. 882, 107 S.Ct. 270, 93 L.Ed.2d 247 (1986), a reasonable officer would not have known that Johnson’s personal assurances to Pinder and subsequent actions with respect to Pittman would violate Pinder’s due process rights. For this reason, the judgment of the district court should be reversed.
LUTTIG, J., joins this separate opinion concurring in the judgment.