concurring in part and, in part, dissenting:
Concurring in the remainder of the Court’s opinion, I find myself unable to join in its sweeping and preemptive treatment of the chief qualified immunity issue presented. As the Court notes, the question is whether the defendant’s alleged conduct “violate[d] 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).1 And as the Court likewise notes, it was “in the early 1980’s when most of the damage that the plaintiffs allege in .this case took place.” Op. at 1511, at 908. In fact, as the opinion makes plain, most of the damage had occurred by “early 1981.” Op. at 1502, at 901.
Yet it was not until Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed. 2d 28_ was handed down a year and some months later in June 1982, that the rights which the defendants are claimed to have violated became “clearly established.” *910Those rights arise under the Fourteenth Amendment and, as the majority in Youngberg observed, “[w]e consider here for the first time the substantive rights of involuntarily committed persons under the Fourteenth Amendment to the Constitution.” Youngberg, 457 U.S. at 314, 102 S.Ct. at 2457 (emphasis added). Indeed, the question whether such rights existed was so entirely unsettled at the time of the injuries alleged here that it was not even clear whether the rights asserted for Jonathan arose under the Fourteenth Amendment or under the Eighth; and the trial court in Youngberg was reversed for having instructed the jury on an Eighth Amendment liability standard. 457 U.S. at 325, 102 S.Ct. at 2463. Nor do I see how such a (then) novel extension of Due Process rights as this one, which had been recognized to one degree or another in some circuits and not at all in others, can fairly be said to have been “clearly established” even before the Supreme Court had considered it for the first time.
Succour to the injured is well and very well; but something is due also to the harried administrator, perhaps seeking to do much with little, unable — as are we — to deal in absolutes, sometimes constrained to limit himself to doing no more than what the law demands because he lacks resources to do more. These defendants may have been such people; the meager record does not say. Nor does it say that they were not; and I think the Court acts unjustly in holding them to a standard which, by hindsight, the majority now calls “clearly established.” It is not so: where even the provenance of the claimed rights was not settled — let alone their scope and reach — at the time they were allegedly violated by these defendants, they cannot fairly be characterized as clearly established.2 I concede that the meaning of “clearly established” is not yet clearly established; but the ring of the whole phrase — “clearly established ... rights of which a reasonable person would have known” — imports to me legal rights so clearly settled and defined that knowledge of their existence is a commonplace among the educated and a failure to recognize them implies their wilful disregard. Clearly these rights were not such before Youngberg, and I therefore respectfully dissent.
. Op. at 1509, at 907. Of course, the factual issue whether any defendant was guilty of such conduct as is charged remains open on the remand ordered by the court.
. At most, it seems to me, the issue should be remanded to the trial court with instructions to determine the proportional amount of whatever damages may eventually be found that accrued after Youngberg became final.