concurring:
I concur in the majority’s conclusion that the appellants enjoy qualified immunity because at the time of Harris’s death there was no clearly established constitutional right to medical care for someone who, like Harris, is taken into police custody for the purpose of obtaining medical care rather than for any law enforcement purpose. See Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 2738-39, 73 L.Ed.2d 396 (1982). In a series of decisions, the Supreme Court has found citizens in state custody constitutionally entitled to some degree of medical care during imprisonment, Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), pretrial detention, Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983), and commitment to state mental institutions, Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). The facts of those cases are, however, as the majority observes, sufficiently different from the circumstances here that Harris cannot be said to have enjoyed a “clearly established” constitutional right to medical care. I also concur in the majority’s judgment because the appellants are entitled to qualified immunity on the additional ground that, even if the claimed right was clearly established, the facts developed below, and summarized by the majority, do not make out a violation of that right. See Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985) (“Unless the plaintiff’s allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery____ Even if the plaintiff’s complaint adequately alleges the commission of acts that violated clearly established law, the defendant is entitled to summary judgment if discovery fails to uncover evidence sufficient to create a genuine issue as to whether the defendant in fact committed those acts.”). In short, I find the appellants entitled to judgment as a matter of law based on qualified immunity because “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. at 2738. Nevertheless, I write separately to disassociate myself from what I perceive as the majority’s strong intimation that, based on the distinctions between the facts here and those in Estelle, Youngberg and. Revere, a citizen like Harris, who is unable to care for him*364self and who is taken into custody by the state for his own welfare, in fact enjoys no due process right to medical care. See Maj.Op. at 360-363. In my view those differences, while supporting a finding of qualified immunity here, do not compel the conclusion that the right does not exist.1
In holding that the eighth amendment gives rise to a right to medical care for convicted prisoners, the Supreme Court reasoned: “An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met.” Estelle, 429 U.S. at 103, 97 S.Ct. at 290. The same justification can support finding a constitutional right to medical care where, as here, a person is taken into custody for his own welfare even if, left on his own, he would be unable to provide care for himself. In fact, that was precisely the case in Youngberg in which the severely retarded plaintiff2 was committed to a state institution at the instigation of his mother who felt she could not provide adequate care. Under those circumstances, the Youngberg Court concluded that the son “enjoy[ed] constitutionally protected interests in conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these interests.” 457 U.S. at 324, 102 S.Ct. at 2462. Nor is the existence of a constitutional right to care here foreclosed, as the majority suggests,3 by the Supreme Court’s recent opinion in DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), which refused to impose on the state a constitutional duty to protect an abused child from harm which “did not occur while he was in the State’s custody, but while he was in the custody of his natural father, who was in no sense a state actor.” Id. at 201, 109 S.Ct. at 1006. The DeShaney Court reasoned:
While the State may have been aware of the dangers that [the child] faced in the free world, it played no part in their creation, nor did it do anything to render him more vulnerable to them. That the State once took temporary custody of [the child] does not alter the analysis, for when it returned him to his father’s custody, it placed him in no worse position than that in which he would have been had it not acted at all; the State does not become the guarantor of an individual’s safety by having once offered him shelter.
Id. at 200, 109 S.Ct. at 1005. The same reasoning does not necessarily apply where, as here, the individual is rendered more vulnerable because he is in state custody and cut off from other sources of succor.4 In fact, the DeShaney Court expressly declined to address the situation in which a child is harmed while in the custody and care of the state.5
*365For these reasons, I concur in the majority’s ruling that the appellants are entitled to qualified immunity but do not agree with its implication that under Supreme Court precedent no constitutional right to medical care exists for someone who, like Harris, is taken into custody for his own welfare and is unable to care for himself.
.That police officers, who "must often act swiftly and firmly at the risk that action deferred will be futile or constitute virtual abdication of office,” Scheuer v. Rhodes, 416 U.S. 232, 246, 94 S.Ct. 1683, 1691, 40 L.Ed.2d 90 (1974); see abo Davis v. Scherer, 468 U.S. 183, 196, 104 S.Ct. 3012, 3020, 82 L.Ed.2d 139 (1984), could reasonably rely on those distinctions does not mean that they will necessarily be found material by a court called upon to decide whether the claimed right exists. The question of the right’s existence, however, is not now before this court and I express no opinion on it. In light of our ruling that the appellants are entitled to qualified immunity, such speculation is unnecessary, see Osabutey v. Welch, 857 F.2d 220, 224 (4th Cir.1988); Walentas v. Lipper, 862 F.2d 414, 421 (2d Cir.1988), cert. denied, 490 U.S. 1021, 109 S.Ct. 1747, 104 L.Ed.2d 183 (1989), and, given the longstanding rule against deciding unnecessary constitutional issues, see Webster v. Reproductive Health Servs., 492 U.S. 490, 525, 109 S.Ct. 3040, 3060, 106 L.Ed.2d 410, 441 (1989) (O’Connor, J., concurring), perhaps improper.
. The plaintiff in Youngberg was a 33-year old man who was unable to talk and had the mental capacity of an 18-month-old child and an I.Q. between 8 and 10. 457 U.S. at 309, 102 S.Ct. at 2454.
. See Maj.Op. at 361.
. According to a nightclub employee, an ambulance had been called for Harris before he was taken into police custody. Maj.Op. at 356.
. The Court noted: "Had the State by the affirmative exercise of its power removed [the child] from free society and placed him in a foster home operated by its agents, we might have a situation sufficiently analogous to incarceration or institutionalization to give rise to an affirmative duty to protect.” 489 U.S. at 201 n. 9, 109 S.Ct. at 1006 n. 9.