dissenting:
“No amount of semantics,” the Court concludes today, “can disguise the fact that the •real ‘affirmative act’ here was committed by Pittman, not by Officer Johnson. As was true in DeShaney, the state did not ‘create’ the danger, it simply failed to provide adequate protection from it.” Because I believe the Court casually disregards the very real ways in which Officer Johnson’s conduct placed Pinder and her children in a position of danger, I respectfully dissent.
In March 1989, the time of the fire, the law “clearly established” that the state has a duty to protect an individual where the state, by its affirmative action, creates a dangerous situation or renders an individual more vul*1180nerable to danger. As the Seventh Circuit stated in Bowers v. DeVito, 686 F.2d 616 (7th Cir.1982):
If the state puts a man in a position of danger from private persons and then fails to protect him, it will not be heard to say that its role was merely passive; it is as much an active tortfeasor as if it had thrown him into a snake pit.
Id. at 618.
Since Bowers, the Seventh Circuit and other circuits, including our own, have reaffirmed this duty. See Archie v. City of Racine, 847 F.2d 1211, 1223 (7th Cir.1988) (“When the state puts a person in danger, the Due Process Clause requires the state to protect him to the extent of ameliorating the incremental risk.”); Wells v. Walker, 852 F.2d 368, 370-71 (8th Cir.1988) (holding that the state has a duty to protect where “the state affirmatively places a particular individual in a position of danger the individual would not otherwise have been in”), cert. denied, 489 U.S. 1012, 109 S.Ct. 1121, 103 L.Ed.2d 184 (1989); Ketchum v. Alameda County, 811 F.2d 1243, 1247 (9th Cir.1987) (holding that in defining the “special relationship” that gives rise to the state’s duty to protect an individual from attack by private third parties, “courts have considered ... whether the state has affirmatively placed the plaintiff in a position of danger”); Escamilla v. City of Santa Ana, 796 F.2d 266, 269 (9th Cir.1986) (“An obligation to protect may arise when the state itself has put a person in danger.”); Jensen v. Conrad, 747 F.2d 185, 194 (4th Cir.1984) (“[W]here the state had selected an individual from the public at large and placed' him in a position of danger, the state was enough of an ‘active tortfeasor’ to make it only ‘just’ that the state be charged with an affirmative duty of protection.”), cert. denied,
470 U.S. 1052, 105 S.Ct. 1754, 84 L.Ed.2d 818 (1985).*
The Supreme Court’s decision in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), did not reject the state’s clearly established duty to protect an individual where the state, through its affirmative action, has created a dangerous situation or rendered the individual more vulnerable to danger. In DeShaney, the Supreme Court held only that the state has no duty to protect an individual from the actions of third parties where the state was aware of the dangers but played no part in their creation. Id. at 201, 109 S.Ct. at 1006. The fact that the state did not create the danger was central to the Court’s holding.
In this case, Officer Johnson was not merely aware of the danger; he placed Pin-der and her children in a position of danger. Officer Johnson knew that Pittman had broken into Pinder’s home and had been abusive and violent. Pittman had punched Pinder and thrown objects at her. When the officers arrived at the scene, Pittman was screaming and threatening that he “wasn’t going to jail for nothing this time; this time it would be for murder.” After the officers restrained Pittman, Pinder explained to Officer Johnson that Pittman had threatened Pinder before, that he had attempted to set fire to her house ten months earlier, and that he had just finished serving his sentence for the attempted arson. Given Pittman’s threats and violent behavior, Pinder was understandably concerned about the safety of herself and her children. She explained to Officer Johnson that she needed to return to work and specifically asked him whether it was safe to do so. Officer Johnson assured Pinder several times that Pittman would remain in police custody until morning. Officer *1181Johnson indicated to Pinder that Pittman could not be released that night because a county commissioner would not be available until the morning. Instead of remaining home with her children or making other arrangements for their safety, Pinder, relying on Officer Johnson’s assurances, returned to work, leaving her children alone at home. At the police station, Officer Johnson charged Pittman only with two minor offenses, trespassing and malicious destruction of property having a value of less than three hundred dollars. Despite his previous representation to Pinder that no county commissioner would be available before the morning, Officer Johnson brought Pittman before a county commissioner that evening. Because Officer Johnson charged Pittman only with two misdemeanors, the county commissioner released Pittman on his own recognizance. Upon his release, Pittman went directly to Pinder’s house and burned it down, killing the three children in the conflagration.
- I cannot understand how the majority can recount these same events in its own opinion and not conclude that Officer Johnson placed Pinder and her children in a position of danger. Officer Johnson made assurances to Pinder that Pittman would remain in police custody overnight and falsely represented that no county commissioner would be available until morning. He induced Pinder to return to work and leave her children vulnerable to Pittman’s violence. After witnessing Pittman’s violent behavior and murderous threats, he charged Pittman with only minor offenses, assuring his release. Officer Johnson had a duty to protect Pinder and her children from Pittman, at least to an extent necessary to dispel the false sense of security that his actions created.
Unlike the majority, I believe that the law at the time of the incident clearly established that Officer Johnson had a duty to protect Pinder and her children upon Pittman’s release. The Court finds it significant that no case before March 1989 contained the precise holding that due process creates a duty of affirmative protection based on an official’s assurances that the danger posed by a third party will be eliminated. Such a particular holding, however, is not required in order to conclude that a right was clearly established.
In Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), the Supreme Court recognized that the operation of the qualified immunity standard depended upon the level of generality at which the law is clearly established. At the most general level, we could conclude that Officer Johnson violated Pinder’s clearly established right to due process. The Supreme Court recognized, however, that a state official could never assert the defense of qualified immunity if the test of “clearly established law” were applied at that level of generality. Id. at 639, 107 S.Ct. at 3038-39. The Supreme Court explained that “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violated that right.” Id. at 640, 107 S.Ct. at 3039.
On the other hand, the Court also rejected the view that “an official action is protected by qualified immunity unless the very action in question has previously been held unlaw-ful_” Id. Requiring such a level of specificity would transform the defense of qualified immunity into a defense of absolute immunity. Instead, the Court held that the preexisting law had to be only specific enough that the unlawfulness of the official’s conduct would be apparent to a reasonable person. See id.; see also Pritchett v. Alford, 973 F.2d 307, 314 (4th Cir.1992) (“The fact that an exact right allegedly violated has not earlier been specifically recognized by any court does not prevent a determination that it was nevertheless ‘clearly established’ for qualified immunity purposes.”).
I believe that a reasonable officer in Officer Johnson’s position would have recognized that, given his assurances- to Pinder that Pittman would remain in police custody until morning and his failure to charge Pittman with an offense serious enough to ensure that he remained in custody overnight, he placed Pinder and her children in a dangerous position. He induced Pinder to let her guard down, dissuading her from taking actions to protect herself and her children from Pittman. Certainly, a reasonable officer would have recognized that he had a duty at least *1182to phone Pinder and warn her that Pittman had been released from police custody.
Pinder’s children were left alone at home, vulnerable to the rampage of a violent, intemperate man, and deprived of their mother’s protection because of the hollow word of an irresponsible, thoughtless police officer. Today the Court holds that this police officer, who took no action to correct a dangerous situation of his own creation, did not violate Pinder’s due process rights and is otherwise immune from prosecution because he did not violate a clearly established right. I disagree.
ERVIN, C.J., and MURNAGHAN and MICHAEL, JJ., have asked to be shown as joining in this dissenting opinion.
The majority opinion argues that Jensen is no longer good law in light of DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). The Jensen Court indicated in a footnote that a "special relationship” may exist where the state has expressly promised to provide affirmative protection or where the state has knowledge of the victim's plight. 747 F.2d at 194-95, n. 11. As the majority opinion notes, the Supreme Court in DeShaney rejected the position that a special relationship arises, giving rise to an affirmative duty to provide protection, where “the State learns that a third party poses a special danger to an identified victim, and indicates its willingness to protect the victim against that danger.” 489 U.S. at 198 & n. 4, 109 S.Ct. at 1004-05 & n. 4 . Nonetheless, I cite Jensen for the proposition that the state has an affirmative duty to provide protection where the state has placed an individual in a position of danger. Jensen is still good law on this point.