dissenting:
I disagree with the amended opinion issued following rehearing. The reasons expressed in my prior dissent remain as stated in Wood v. Ostrander, 851 F.2d 1212, 1220 (9th Cir.1988) and as supplemented by further review of the qualified immunity issue. Additional concerns are prompted by two opinions of the United States Supreme Court issued since this matter was reargued on November 23,1988, DeShaney v. Winnebago Cty. Soc. Servs. Dept., — U.S. -, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) and Canton v. Harris, — U.S. -, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).
The basic (initial) issue to be addressed in this case is whether Ostrander arguably violated Wood’s liberty rights under the substantive component of the Due Process Clause. The majority opinion concludes as a matter of law that:
The fact that Ostrander arrested Bell, impounded his car, and apparently stranded Wood in a high-crime area at 2:30 a.m. distinguishes Wood from the general public and triggers a duty of the police to afford her some measure of peace and safety. See White v. Rockford, 592 F.2d at 384 and n. 6 (and authorities cited therein). See also Chambers-Castenes v. King Co., 100 Wash.2d 275, 669 P.2d 451 (1983); ... (policy of state to respond to requests for assistance in courteous and judicious manner).1
Ergo, the majority opinion concludes, “We are satisfied that Wood has presented genuine issues of material fact on the question of whether Ostrander deprived her of a liberty interest protected by the Constitution. See Ingraham v. Wright, supra: Haygood v. Younger, 769 F.2d at 1356.” I do not agree with this conclusion for the reasons stated in this dissent.
The first of two other issues, assuming the Due Process Clause required the State to protect Wood from her unknown assailant, concerns whether Ostrander has the requisite state of mind to make out a due process violation. The amended opinion concludes — post Canton — that “Wood has raised a genuine issue of fact tending to show that Trooper Ostrander acted with deliberate indifference to Wood’s interest in personal security under the fourteenth amendment.” Citing Taylor v. Ledbetter, 818 F.2d 791, 793 (11th Cir.1987) (en banc).
Certiorari has been granted in Taylor, the case has been argued and an opinion can issue at any time.2 While I agree that *597“deliberate indifference” is the appropriate standard, I believe that the record, construed in a manner most favorable to Wood, does not “tend[] to show a disregard for Wood’s safety amounting to deliberate indifference.”
The last issue is whether Ostrander is entitled to a qualified immunity defense. Again, the majority opinion concludes, after a studied analysis:
[T]hat if Wood establishes at trial the facts she has stated in support of her section 1983 action, and which we must accept as true at this stage of the case, Ostrander will not be entitled to qualified immunity. A reasonable police officer who acted as Wood alleges Ostrander acted should have understood that what he was doing violated Wood’s constitutional right to be free from an unjustified intrusion into her personal security in violation of her liberty interest under the fourteenth amendment. See Anderson v. Creighton, 107 S.Ct., at 3039; White v. Rochford, 592 F.2d, at 384-85 & 387 (Tone, J., concurring).
For reasons detailed in this dissent, I do not agree that White v. Rockford, 592 F.2d 381 (7th Cir.1979) was “clearly established” law in 1984 with reference to the substantive due process issue in this case. I do not believe that White is precedential authority post DeShaney, for the proposition that Ostrander “acted with deliberate indifference to Wood’s interest in personal security under the fourteenth amendment.”
DISCUSSION
I. Criteria for a Section 1983 Claim under the Substantive Component of the Fourteenth Amendment’s Due Process Clause
I respectfully submit that DeShaney is now the controlling authority to determine what are the relevant criteria for determining whether a section 1983 claim is stated under the substantive component of the Fourteenth Amendment’s Due Process Clause.
DeShaney, like the case at hand, involved the “substantive rather than the procedural component of the due process clause”:
Joshua [DeShaney] and his mother brought this action under 42 U.S.C. § 1983 in the United States District Court for the Eastern District of Wisconsin against respondents Winnebago County, its Department of Social Services, and various employees of the Department. The complaint alleged that respondents had deprived Joshua of his liberty without due process of law, in violation of his rights under the Fourteenth Amendment, by failing to intervene to protect him against a risk of violence at his father’s hands of which they knew or should have known.
109 S.Ct., at 1002.
The Supreme Court explained that it granted certiorari in DeShaney:
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, see Archie v. City of Racine, 847 F.2d 1211, 1220-1223, and n. 10 (CA 7 1988) (en banc) (collecting cases), cert. pending, No. 88-576, and the importance of the issue to the administration of state and local governments, ....
Id., at 1002.
The Supreme Court first outlined why it is that a state is not “categorically obligated” to protect a person from private violence:
But nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State’s power to act, not as *598a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without ‘due process of law,’ but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means. Nor does history support such an expansive reading of the constitutional text. Like its counterpart in the Fifth Amendment, the Due Process Clause of the Fourteenth Amendment was intended to prevent government ‘from abusing [its] power or employing it as an instrument of oppression’.... Its purpose was to protect the people from the State, not to ensure that the State protected them from each other. The Framers were content to leave the extent of governmental obligation in the latter area to the democratic political processes.
Consistent with these principles, our cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual, [citations omitted] ... If the Due Process Clause does not require the State to provide its citizens with particular protective services, it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them, [footnote omitted]. As a general matter, then, we conclude that a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.
109 S.Ct., at 1008-04.
The Court went on to discuss Petitioners’ contention that a “duty” to provide “adequate protective services” arises out of “ ‘special relationships’ created or assumed by the State with respect to particular individuals.” Petitioners argued that such a “special relationship” existed in DeSkaney “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.” Petitioners then argued that “Its [the State’s] failure to discharge that duty, ... 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.”
The Opinion observes (n. 4) that “The genesis of this notion [a special relationship] appears to lie in a statement in our opinion in Martinez v. California, 444 U.S. 277 [100 S.Ct. 553, 62 L.Ed.2d 481] (1980). In that case, we were asked to decide, inter alia, whether state officials could be held liable under the Due Process Clause of the Fourteenth Amendment for the death of a private citizen at the hands of a parolee. Rather than squarely confronting the question presented here — whether the Due Process Clause imposed upon the State an affirmative duty to- protect — we affirmed the dismissal of the claim on the narrower ground that the causal connection between the state officials’ decision to release the parolee from prison and the murder was too attenuated to establish a ‘deprivation’ of constitutional rights within the meaning of § 1983.”
In this same footnote (n. 4) the Court commented that several Courts of Appeal have read the statement in Martinez:
[T]he parole board was not aware that appellants’ decedent, as distinguished from the public at large, faced any special danger. We need not and do not decide that a parole officer could never be deemed to ‘deprive’ someone of life by action taken in connection with the release of a prisoner on parole.
“as implying that once the State learns that a third party poses a special danger to an identified victim and indicates its willingness to protect the victim against danger, a ‘special relationship’ arises between State and victim, giving rise to an affirmative duty, enforceable through the Due Process Clause, to render adequate protection.” The DeShaney opinion makes it *599clear that this construction of Martinez is overbroad.
The Supreme Court flatly rejected petitioners arguments in DeShaney and impliedly the Circuit Court opinions relying on similar arguments. (Balistreri v. Pacifica Police Dept., 855 F.2d 1421, 1425-26 (CA9 1988), (a special relationship case), was one of the Circuit Court opinions referenced in this regard). The Supreme Court cited its prior opinions to illustrate why it is “that in certain limited circumstances the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals,” i.e., “adequate medical care to incarcerated prisoners;” services to “involuntarily committed mental patients ... as are necessary to ensure their ‘reasonable safety’ from themselves and others,” and “medical care to suspects in police custody who have been injured while being apprehended by the police.” The Court then noted:
But these cases afford petitioners no help. Taken together, they stand only for the proposition that when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume responsibility for his safety and general well-being.
109 S.Ct., at 1005. The Court goes on to hold:
The affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf. [Citation omitted]. In the substantive due process analysis, it is the State’s affirmative act of restraining the individual’s freedom to of personal liberty — which is the ‘deprivation of liberty’ triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harm inflicted by other means.
Id., 109 S.Ct. at 1006.
After its discussion of Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) and Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), the DeShaney Court said:
The Estelle-Youngberg analysis simply has no applicability in the present case. Petitioners concede that the harms Joshua suffered 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, [footnote omitted]. While the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it render him any more vulnerable to them. That the State once took temporary custody of Joshua 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 permanent guarantor of an individual’s safety by having once offered him shelter. Under these circumstances, the State had no constitutional duty to protect Joshua.
Id.
Here, Wood was never in the State’s custody. The person from whom Wood accepted a ride and who allegedly raped her was not a state actor. Assuming the State was aware of the speculative dangers that Wood faced or of any of her alleged circumstances concerning money, or the inability to call anyone to pick her up, or the distance she had to walk, the State played no part in their creation. Neither did the State render her more vulnerable than any other member of the general public in that area, whether walking about, standing by the side of the road, or going to or from one of the nearby 24-hour business establishments.
The State patently did not become the guarantor of Wood’s safety when it arrested the drunken driver of the car in which she was riding. How could any reasonable police officer be aware that in not escorting Wood home, or taking her to a location she requested, he was violating her “constitutional right to be free from an unjustified intrusion into her personal security in violation of her liberty interest under the four*600teenth amendment.” This proposition is the most attenuated of claimed “special relationships,” and cannot pass constitutional muster. Consistent with DeShaney, the State owed no constitutional duty to Wood.
The Amended Opinion continues to rely on White v. Rockford, 592 F.2d 381, 385 (7th Cir.1979), after DeShaney. Thus White is cited for the proposition that “gross negligence or reckless disregard for the safety of others” is cognizable under section 1983; as well as supporting the majority’s conclusion “that Ostrander having arrested Bell, impounded his car, and apparently stranded Wood in a high-crime area at 2:30 a.m. distinguishes Wood from the general public and triggers a duty of the police to afford her some measure of peace and safety.” This latter proposition — a special relationship contention — is totally inconsistent with the legal principles enunciated so clearly in DeShaney.
Justice Brennan recognizes that the majority opinion in DeShaney is contrary to White.3 Thus, he states in his dissent:
Cases from the lower courts also recognize that a State’s actions can be decisive in assessing the constitutional significance of inaction. For these purposes, moreover, actual physical restraint is not the only State action that has been considered relevant. See, e.g., White v. Rochford, 592 F.2d 381 (CA7 1979) (police officers violated due process when, after arresting the guardian of three young children, they abandoned the children on a busy stretch of highway at night).
106 S.Ct., at 1008.
The Amended Opinion’s only reference to DeShaney is as follows:
Wood has raised a triable issue of fact as to whether Ostrander’s conduct ‘affirmatively placed the plaintiff in a position of danger.’ Ketchum, 811 F.2d at 1247; See Jackson v. City of Joliet, 715 F.2d at 1204 (distinguishing situation where arrest creates the danger, actionable under section 1983, from situation where danger existed before defendant acted); see also DeShaney v. Winnebago Cty. Soc. Servs. Dept., — U.S. -, 109 S.Ct. 998, 1006 [103 L.Ed.2d 249] (1989), distinguishing situation where state,‘played no part’ in creating the dangers that minor child faced by remaining in his father’s custody ‘nor did [the state] do anything to render [the child] any more vulnerable to them’).
The limited quotes from DeShaney were not decisive to that opinion. This is readily apparent when it is recalled that the State had in fact taken custody of the child and thereafter “returned him to his father’s custody,” while having knowledge of the father’s abusive character. Nonetheless, the Supreme Court found that these circumstances were not “sufficiently analogous to incarceration or institutionalization to give rise to an affirmative duty to protect.” 109 S.Ct., at 1006, n. 9.
To repeat, the State did not create the unknown dangers, whatever they were, that Wood faced when she decided to accept a ride from a stranger rather than choose one of the other options that were available to her.4
The statement in the Amended Opinion, n. 6, that it “does not foreclose Wood from attempting to show at trial [as a violation of a constitutional right to substantive due process] that Ostrander’s treatment of her was such that it ‘shocks the conscience,’ ” appears to offend the plain holding of De-Shaney, wherein it rejected a similar argument. See also Comment, Substantive Due Process Analyses of Non-legislative State Action, A Case Study, 1980 Brig.Yg. L.Rev. 347. In discussing White v. Rockford,—the case under study — the writer anticipated DeShaney when he concludes:
Rochin was not a substantive due process case at all. Its rationale and holding dealt strictly with the procedural guarantees of the due process clause; *601‘shocks the conscience’ test to which the Rochin decision gave birth had nothing whatsoever to do with defining an independent and absolute right, as the Court in White apparently assumed. The liberty interest at stake in Rochin was liberty in its classical sense. It was an interest in freedom from physical restraint, a freedom deprived in that case as a result of criminal conviction and incarceration. The Rochin opinion was simply addressed to the question of whether the conviction was obtained by methods satisfying ‘due process of law.’
Id., at 369.
II. The Requisite — “State of Mind” to make out a Due Process Violation
The amended opinion asserts in an ar-guendo fashion that if “reckless or gross negligence” is not sufficient to state a section 1983 claim — as concluded in the original opinion, based on dictum in Ketchum v. County of Alameda, 811 F.2d 1243 (9th Cir.1987) — then “Wood has raised a genuine issue of fact tending to show that Trooper Ostrander acted with deliberate indifference to Wood’s interest in personal security under the fourteenth amendment.” The opinion does not explicate how it is that the character of Wood’s version of the case has changed after rehearing from “reckless or gross negligence” to “deliberate indifference.”
III. Qualified Immunity
I believe it is unnecessary to consider whether Ostrander is entitled to a qualified immunity defense, given that the Due Process Claim does not require the State to protect Wood from her unknown assailant. DeShaney, Id.
Assuming for discussion purposes that DeShaney does not moot this issue, I would affirm the District Court’s determination that a “special relationship” was not created in a constitutional sense between the State and Ms. Wood under the circumstances present during the early morning hours of September 23, 1984, and the District Court’s further conclusion that Os-trander was entitled to qualified immunity:
Wood was an adult female, admittedly able to exercise the independent judgment of an ordinary adult. She was left within walking distance of two open businesses where she could seek help. In this case the State had not affirmatively committed itself to protecting this class of persons. The state at the time of the indictment had no guidelines requiring the safekeeping of passengers of arres-tees. In this case, it cannot be said that the state knew of Wood’s plight. This is not the type of case where the state had knowledge of a particular madman who was likely to prey on Wood. The plaintiff alleges that this particular area is a high-crime area. To hold that the trooper had a duty of protection on that basis would be to create an affirmative constitutional duty of protection, in essence, to the public as a whole. This court declines to do so. Ostrander was unaware of whether or not she had money available to seek help. Thus, even assuming that an officer in 1984, through some crystal ball analysis, could foresee the analytical approach suggested by the Ninth Circuit in 1986, a special relationship was not created. At the time of the incident Ostrander’s conduct did not violate a clearly established constitutional right. Ostrander is entitled to qualified immunity from suit for civil damages. (ER 54, p. 9).
The standard of qualified immunity outlined in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), entitles a public official to immunity so long as his actions do not violate a clearly established statutory or constitutional right about which a reasonable person would have known.
This defense is a matter of consequence to public officials at every level of government. It allows them to exercise their discretion in situations where claimed rights have not been clearly established, and to act “with independence and without fear of consequences.” Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967).
*602Qualified immunity is an entitlement not to stand trial under certain circumstances or to be burdened with broad reaching and costly pretrial discovery. Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985):
“The entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” 472 U.S. at 526, 105 S.Ct. at 2815.
Resolution of this issue is encouraged on summary judgment; a denial of the defense, to the extent it turns on an issue of law, is a final decision which may be reviewed by way of an interlocutory appeal. Id., at 530, 105 S.Ct. at 2817. Qualified immunity is a fact specific determination.
This “important question” was revisited in Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987). In Anderson the Court of Appeals for the Eighth Circuit had determined that a police officer was not entitled to summary judgment on qualified immunity grounds, “since the right [he] was alleged to have violated — the right of persons to be protected from warrantless searches of their homes unless the searching officers have probable cause and there are exigent circumstances — was clearly established.” Id.
Justice Scalia, writing for the majority in Anderson, after giving an overview of the breadth of the qualified immunity defense, e.g., it “protects ‘all but the plainly incompetent or those who knowingly violate the law,’ ” concluded:
Somewhat more concretely, whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the ‘objective legal reasonableness’ of the action. Harlow, 457 U.S., at 819, 102 S.Ct., at 2739, assessed in light of the legal rules that were ‘clearly established’ at the time it was taken, id., at 818, 102 S.Ct., at 2738.
107 S.Ct., at 3038.
Anderson goes on to explain why the claimed violation of a broad general constitutional principle is not the kind of “clearly established law” upon which a damage claim can rest:
The operation of this standard, however, depends substantially upon the level of generality at which the relevant ‘legal rule’ is to be identified. For example, the right to due process of law is quite clearly established by the Due Process Clause, and thus there is a sense in which any action that violates that Clause (no matter how unclear it may be that the particular action is a violation) violates a clearly established right. Much the same could be said of any other constitutional or statutory violation. But if the test of ‘clearly established law’ were to be applied at this level of generality, it would bear no relationship to the ‘objective legal reasonableness’ that is the touchstone of Harlow. Plaintiffs would be able to convert the rule of qualified immunity that our cases plainly establish into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights. Harlow would be transformed from a guarantee of immunity into a rule of pleading. Such an approach, in sum, would destroy ‘the balance that our cases strike between the interests in vindication of citizens’ constitutional rights and in public officials’ effective performance of their duties,’ by making it impossible for officials ‘reasonably [to] anticipate when their conduct may give rise to liability for damages.’ Davis, 468 U.S., at 195, 104 S.Ct., at 3019. [footnote, omitted]. It should not be surprising, therefore, that our cases establish that the right the official is alleged to have violated must have been ‘clearly established’ in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, see Mitchell, 472 U.S., at 535, n. 12, 105 S.Ct. at 2820, n. 12; but it is to say that in the light of preexisting law the unlawfulness must *603be apparent. See, e.g., Malley, supra, 475 U.S. [335], at 344-345, 106 S.Ct. [1092], at [1098] [89 L.Ed.2d 271]; Mitchell, supra, 472 U.S., at 528, 105 S.Ct., at 2816; Davis, supra, 468 U.S., at 191, 195, 104 S.Ct., at 3017, 1019.
Id., at 3038-39.
In Ward v. County of San Diego, 791 F.2d 1329 (9th Cir.1986), this Court discussed the qualified immunity defense and its application under Harlow and Capoeman v. Reed, 754 F.2d 1512 (9th Cir.1985):
We first note that Capoeman places the responsibility for keeping abreast of constitutional developments in criminal law squarely on the shoulders of law enforcement officials. Given the power of such officials over our liberty, and sometimes even over our lives, this placement of responsibility is entirely proper. Law enforcement officials must be cognizant not only of how far their authority extends, but also of the point at which their authority ends. At the same time, however, we do not read Capoeman to require of most government officials the kind of legal scholarship normally associated with law professors and academicians. A reasonable person standard adheres at all times.
791 F.2d, at 1332.
On September 23, 1984, White v. Rockford, 592 F.2d 381 (7th Cir.1979), was the one and only case in all American jurisprudence holding — even inferentially — that an arresting officer owed a duty to passengers (children) in a car “to conduct an arrest in such a manner that the children’s interest in personal security was not infringed.” (concurring opinion, Id. at 388).
The first question to be answered is what legal rules were expressed in White and were they “clearly established” by that opinion so that a reasonable police officer would understand that the “ ‘law clearly proscribed the actions’ ” he took. Anderson, 107 S.Ct. at 3038.
The majority opinion admonishes here that:
The immunity standard considers whether a reasonable law enforcement officer should view the White case as controlling. Given this element of reasonableness, the qualified immunity regime of clearly established law should not be held to allow section 1983 defendants to interpose lawyerly distinctions that defy common sense in order to distinguish away clearly established law ...
One is left to wonder who — if not the lawyers — will speak for these reasonable police officers in attempting to persuade a court whether a proposition is or is not clearly established law.
In the final analysis, White must be considered in its totality, as it might be understood by a reasonable police officer, and not, I submit, as the majority opinion has done, by excerpting seven words from the one judge lead opinion in White by Judge Sprecher and eleven words from the partially concurring opinion of Judge Tone (“I agree in part, but not in all respects, with Judge Sprecher’s reasons for reversal of the judgment as to the police officer defendants, and am therefore stating separately my reasons for concurring in that action.” Id., at 386). Consideration is also required of Judge Kilkenny’s dissenting opinion (“The majority, by implication, imagination, or otherwise paints a picture which finds no support in the record. The cases do not fit our facts.” Id., at 392). It is evident that there are a variety of judgments that a reasonable police officer could reach after reviewing these three opinions.
The fact that the majority here believe that “It defies common sense to find a meaningful legal distinction between dangers facing children crossing a busy highway and a woman left alone to fend for herself at 2:30 a.m. in a high crime area,” does not require that a reasonable police officer would have so concluded after reading White — he might well be uncertain whether the rationale of the lead and concurring opinions extended only to children passengers, or to any passengers.5
*604Judge Sprecher’s opinion was obviously prompted by the fact that the passengers were minor children who had been deprived of the adult protection of their custodian. It would unduly extend this dissent to incorporate Judge Sprecher’s extensive statements in this regard, or to include his references to state statutes concerning duties owed minor children by persons responsible for their custody. Suffice it to say that his statement of the issue presented on appeal illustrates what his concerns were:
The issue presented by this case is whether police officers may, with constitutional impunity, abandon children and leave them in health-endangering situations after having arrested their custodian and thereby deprived them of adult protection. We hold that they may not, and accordingly, we reverse the district court’s dismissal of a complaint alleging such facts and remand for trial.
592 F.2d, at 382.
Although Judge Tone did not concur in all respects with Judge Sprecher’s reasons for reversal, his concurring opinion could justifiably cause a reasonable police officer to believe that the minor children’s custodial status was a controlling principle in the case:
In the case at bar the children in the car had a federally protected right to be free from the unjustified intrusions on their personal security by the police. Their personal security was under the protection of their uncle. If that protection was removed and no alternative protection was provided, they would be exposed to danger as occupants of an immobilized car on a highspeed expressway and to the cold. Arresting the uncle and thus removing their protection, and yet leaving the children exposed to these hazards, was an unjustified intrusion on the children’s personal security.
Id., at 387.
Just as the police officers are not held to the standards of legal scholars, neither should they be expected to analyze and parse an opinion (that they never heard of) utilizing the legal skills and reasoning of an appellate judge.
The opinions that cited White prior to September 1984, either distinguished the case from the one being decided (Williams v. City of Boston, 599 F.Supp. 363, 367 (D.Mass.1984)) (No liability for a student injured at a football game scheduled in a high crime area. The Court held the plaintiff “was no more foreseeable victim of harm than any other person in attendance at the football game ... Furthermore, as in Martinez, the causal connection between the defendants’ acts and the plaintiff’s injury is too tenuous to impose § 1983 liability.”); cited it for the proposition that gross or reckless conduct in a situation that would otherwise be simple negligence was sufficient to state a § 1983 claim, (e.g., Means v. City of Chicago, 535 F.Supp. 455 (N.D.Ill.1982)); or that mental or emotional distress may be compensable under § 1983, (James v. Bd. of Sch. Com’rs of Mobile County, Ala., 484 F.Supp. 705, 714 (S.D.Ala.1979). See also other cites: Coyne v. Boeckmann, 511 F.Supp. 667, 669 (E.D.Wis.1981) (coerced confession from a 17 yr. old); Seide v. Prevost, 536 F.Supp. 1121, 1125 (S.D.N.Y.1982) (state responsibility for committed and uncommitted disturbed persons); Larson v. Wind, 536 F.Supp. 108 (N.D.Ill.1982) (medical assistance for person in police custody); Arko v. Broom, 518 F.Supp. 669 (D.Colo.1981) (police officers exposed to dangerous or addictive drugs); Wedgeworth v. Harris, 592 F.Supp. 155 (W.D.Wis.1984) (sexual assault by a police officer).
At best, White is a “special relationship” case — dealing with a police officer and minor children in an unusual situation. The Seventh Circuit recognized that fact in Ellsworth v. City of Racine, 774 F.2d 182, 195 (7th Cir.1985), when it noted:
“Indeed, we have held that: the constitution creates a duty on the part of police officers to protect minor children from *605immediate hazards after police officers arrest the children’s guardians. White v. Rochford,,....”
One further statement in Ellsworth is pertinent:
“The contours of what constitutes a ‘special relationship’ between a municipality, acting through its officials, and its citizens are hazy and indistinct. We have tried to lend clarity to the concept when faced with the facts presented by individual cases.” Id., at 185.
That is what occurred in White when the Court considered the facts presented in that individual case. Could anyone fairly conclude that the White court would have found the same “constitutional” violation if Ms. Wood had been the passenger left sitting in the car on the Chicago Skyway, rather than the minor children? I submit not.
The Precedential Effect of White in this Circuit
In light of the conclusions I reach regarding DeShaney and the fact that White does not identify a “clearly established” constitutional right allegedly violated by Ostrander, it is not necessary to address the majority opinion’s conclusion that “it was likely in September, 1984 the Ninth Circuit would have come to the same result as the Seventh Circuit did in White.”
I do not understand, however, how the majority opinion reaches this conclusion without addressing the concerns expressed by Judge Kilkenny in his dissent. (592 F.2d, at 388-395). I say this not because Judge Kilkenny is a long time Ninth Circuit Judge, but rather because of his thoughtful critique of the other two opinions, as well as his analysis of opinions relied on by Judges Sprecher and Tone:
“The authorities cited by appellants are wide of the mark. In no way do they support appellants’ principal claims that they were deprived of their constitutional rights to liberty, non-interference with family affairs or freedom to travel in interstate commerce.” Id., at 397.
With respect to the “liberty” interest issue, Judge Kilkenny observed:
The majority, by implication, imagination, or otherwise paints a portrait which finds no support in the record. The cases cited do not fit our facts. These cases involve state or governmental agency action directed at a particular person whom the agency or officer has either taken into custody or over whom they have asserted responsibility. Nowhere does the majority face up to the distinction which I make as to the duty owed to the uncle, once arrested, and the absence of duty to the children against whom no action was taken.
Id., at 392.
Judge Kilkenny also foresaw the DeSha-ney holding when he said “[n]o authority is cited by either member of the majority which would place the actions of the officers in the instant case in violation of the second aspect of the Due Process Clause’s protection, i.e., that their action ‘shocks the conscience.’ This is just a wishful way of attempting to create a constitutional remedy where none exists.” Id., at 393.
Under Capoeman this court would have considered the law review comment in 1980 Brig.Yg.L.Rev. 347, referenced earlier in my dissent. The Comment’s conclusion, captioned “A Constitutional Misstep,” is particularly insightful:
In White v. Rochford, the Seventh Circuit’s conclusion that the offending policeman had deprived the plaintiff children of constitutional rights seem to follow emotional impulses more closely than it follows acceptable principles of due process analysis. The court gave only incomplete reference to appropriate case law, it refused to consider even the relevance of procedural questions, and it failed to note the special relevance that the recent Supreme Court decision in Ingraham v. Wright gave to the availability of independent causes of action under Illinois law. In so doing, the court successfully, even if perhaps not purposefully, avoided the balancing that has been commonly used to resolve due process conflicts between nonlegislative state action and constitutionally protect*606ed, but less than fundamental, personal interests.
The White decision’s uniquely substantive approach to the due process issue evidences only an attempt to arrive at a ‘just’ result based on the appellate court’s independent evaluation of the officers’ alleged actions. The final judicial product is one that is blatantly inconsistent with evident Supreme Court policy that the due process clause is not a valid source of general federal tort liability. If the Seventh Circuit had good reasons to circumvent this policy, it could have masked its efforts more effectively. The holding in White could have been at least more clearly reasoned, even if not more solidly based, had it been decided on grounds of procedural insufficiency in the police officers' actions.
Substantive due process analysis has not disappeared from judicial decision making, but the trend, which should continue, has been to carefully limit its scope. Courts that are inclined to adopt a purely substantive approach toward no-nregulatory types of state action similar to that challenged in White should first insure that the rights involved are within the scope of ‘fundamentals’ that find solid root in specific constitutional language or values. The Seventh Circuit’s failure to do so in White v. Rochford resulted in an obviously superficial analysis, wanting for necessary procedural considerations and balance.
1980 Brig.Yg.L.Rev., at 374-75.
In deciding whether this circuit would have followed White in 1984, one must look at opinions of the United States Supreme Court as they exist today. I know of no case that holds a state official liable for conduct violative of the constitution when it occurred but no longer violative at the time the decision is being made. White, whatever its status in 1984, does not survive DeShaney as precedential authority for a claimed special relationship duty.
Otherwise, I will leave for others to ultimately decide whether the majority correctly concludes that White was “clearly established” law and that it would have been followed in this Circuit in 1984. I suggest to the contrary on each proposition. Ca-poeman took a cautious view in a situation where several circuits had issued opinions on the point at issue — and appropriately found that there was uncertainty as to what would have been done in the Ninth Circuit. To take a contrary position on the basis of one opinion — and particularly of the uncertainty of White — would effectively void the qualified immunity defense for public officials and it would become but a barmecidal doctrine. Not only would a public official in the Ninth Circuit be charged with knowledge of Ninth Circuit precedent, but would be charged with knowledge of cases cited in opinions which were cited in Ninth Circuit opinions.6
Conclusion
The State of Washington holds its police officers responsible for actions of the type alleged in this case. It was appropriate for the state to make that decision. State tort law is the arena within which to develop the procedures an officer should follow in deciding whether to offer assistance to a passenger and how that assistance should then be provided. It requires little prescience to anticipate the kind of disputes that will be generated in these instances concerning what was told the officer; mode of dress; weather forecasts; the crime rate at the arrest scene and environs; where the passenger wanted to be transported, etc. Like DeShaney and White (Judge Kilken-ny’s dissent), officers will undoubtedly be faced with charges of false arrest, sexual harassment and assaults as they attempt to meet whatever burdens are imposed on them in the absence of state regulations spelling out procedures to be followed. Those are not problems to be addressed *607under the Due Process Clause of the Fourteenth Amendment.
. I do not understand the relevance of this State Court opinion to issues in this appeal. The fact that the State of Washington has a policy that police officers should give assistance, etc., to motorists and their passengers would not make violation of that policy a section 1983 violation; neither would it serve to impose liability on the state for its failure to properly train state troopers to effectuate that policy.
. The Supreme Court’s decision in Taylor may further refine .the "special relationship” situations to include children "involuntarily placed *597in a foster home" as being “analogous to a prisoner in a penal institution and a child confined in a mental health facility.” 818 F.2d at 797. This is a far different situation than extending protection of Fourteenth Amendment rights to adult passengers in a vehicle where the driver is arrested.
. Justice Brennan also cited White in his dissenting opinion (n. 3) in Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 674, 88 L.Ed.2d 677 (1986).
. The area where Wood's companion was arrested is a well-lighted thoroughfare in a commercial district. Two retail businesses in the immediate vicinity were open and lighted.
. I do not agree that White was correctly decided on a constitutional basis. I believe, however, that there are meaningful legal distinctions between duties which law enforcement officers may owe to minor children and an adult when they arrest the driver of a car in which they are *604riding. I also believe that the dangers facing the minor children in White were immediate and apparent, whereas any dangers facing Wood were speculative, conjectural and subject to her control. The injury which she claims to have suffered could have occurred to any woman accepting a ride from a stranger at any hour of the day in any community.
. White was first cited in this Circuit in Balistreri v. Pacifica Police Dept., 855 F.2d 1421 (9th Cir.1988) (submitted without argument on March 16, 1988 and the opinion issued August 23, 1988). Interestingly, Balistreri does not cite Wood, which was originally decided July 13, 1988.