Herring v. Keenan

UNITED STATES COURT OF APPEALS
Tenth Circuit
Byron White United States Courthouse
1823 Stout Street
Denver, Colorado 80294
(303) 844-3157
Patrick J. Fisher, Jr. Elisabeth A. Shumaker
Clerk Chief Deputy Clerk

July 19, 2000

TO: ALL RECIPIENTS OF THE OPINION

RE: 99-1263, Herring v. Keenan
Filed on July 10, 2000

The opinion filed in this matter contains a clerical error in the attorney section for
the Defendant - Appellant. The section should read “...with her on the briefs...” as
opposed to “with him on the briefs.”

A corrected copy of the first page of the opinion is attached.

Sincerely,

Patrick Fisher, Clerk of Court

By:
Daniel R. Sosa, Jr.
Deputy Clerk
 F I L E D
United States Court of
Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS JUL 10 2000

FOR THE TENTH CIRCUIT PATRICK FISHER
Clerk

SYLVIA HERRING AS PERSONAL
REPRESENTATIVE OF THE ESTATE
OF FREDERICK HERRING,

Plaintiff - Appellee, No. 99-1263

v.

KATHLEEN KEENAN,

Defendant - Appellant.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 95-WY-3196-WD)

Freddi Lipstein, Attorney, Appellate Staff (David W. Ogden, Acting Assistant Attorney
General; Thomas L. Strickland, United States Attorney; Barbara L. Herwig, Attorney,
Appellate Staff, Department of Justice, with her on the brief), Washington, D.C. for
defendant-appellant.

Steven C. Choquette (A. Bruce Jones and Tiffany W. Smink of Holland & Hart LLP,
Denver, Colorado; Jay S. Jester of Miller, Jester & Kearney, Denver, Colorado in
association with the American Civil Liberties Union with him on the brief), for plaintiff-
appellee.
Before SEYMOUR, ALARCÓN,* and BALDOCK, Circuit Judges.

_________________________

ALARCÓN, Circuit Judge.

_________________________

Kathleen Keenan (“Keenan”), a federal probation officer, appeals from the order

denying her motion to dismiss the claims filed against her by Frederick Herring

(“Herring”).1 Herring alleged in his complaint, filed pursuant to Bivens v. Six Unknown

Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), that Keenan

violated his federal constitutional right to privacy by stating to his sister, and the manager

and acting director of the restaurant where he was employed as a waiter, that Herring had

tested positive to human immunodeficiency virus (“HIV”). At the time of the disclosure,

Herring was serving a period of probation under Keenan’s supervision. The district court

rejected Keenan’s contention that she was entitled to qualified immunity because she did

not violate a clearly established constitutional right. We conclude that there is a

*
The Honorable Arthur L. Alarcón, Senior United States Circuit Judge for
the Ninth Circuit, sitting by designation.
1
Since filing his original complaint, Frederick Herring passed away. His
sister, Sylvia Herring, was substituted as plaintiff in the second amended complaint.

2
constitutional right to privacy that protects an individual from the disclosure of

information concerning a person’s health. We reverse the denial of the motion to dismiss,

however, because we hold that it was not clearly established, at the time Keenan disclosed

to Herring’s sister and his employer that Herring had tested positive for HIV, that a

probationer had a constitutionally protected right to privacy regarding information

concerning his or her medical condition.

I

Because we are reviewing the denial of a motion to dismiss pursuant to Rule

12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure, “we must accept all

of the well pleaded allegations in the complaint as true.” Tonkovich v. Kansas Bd. of

Regents, 159 F.3d 504, 510 (10th Cir. 1998). The following facts are alleged in the

second amended complaint.

On or about September of 1993, Herring began serving a period of probation under

Keenan’s supervision following his conviction for driving while intoxicated on federal

property. On or about December 22, 1993, Herring met Keenan as required by the terms

of his probation. During their meeting, Herring informed Keenan that he had recently

taken an HIV test and he thought he might be infected with the virus. Herring had not

received the results of the HIV test at the time of this conversation. At no time did he

inform Keenan that the results of the HIV test were positive. Herring did not authorize

Keenan to disclose this information to anyone. On the date he disclosed this information

3
to Keenan, Herring was employed as a waiter at the 50's Café, a restaurant at the Lowry

Air Force Base Recreation Center in Denver, Colorado.

Following the December 1993 meeting, Keenan informed Candice Clark, the

manager of the 50's Café, that Herring was HIV positive. Keenan repeatedly stated to

Candice Clark that Herring should be terminated from his position.

In a telephone conversation with Sylvia Herring, Herring’s sister, Keenan told her

that Herring had been tested for HIV and/or was HIV positive. Prior to Keenan’s

disclosure, Sylvia Herring was unaware that her brother had been tested for HIV or might

be HIV positive.

On or about January 10, 1994, Keenan informed John Casey, the acting director of

the 50's Café, that Herring was HIV positive. She demanded that Herring be fired

because she believed that Colorado law prohibited a person who has tested as HIV

positive from working in a food preparation position.

The complaint also alleges that:

Defendants’ conduct was in blatant violation of Volume X, Sec. 16 D and F
of the Guide to Judiciary Policies and Procedures which provides that
probation officers “should not disclose HIV infection or illness information
to the offender’s family members, parents, or sexual/drug partners without
the offender’s informed, written consent” and that “notification of other
third parties is the responsibility of the exposed person.”

II

Herring filed this action on December 21, 1995, in the district court. He alleged

that Keenan’s disclosures violated his constitutional right to privacy, and his statutory

4
right to be protected from disclosure of a record pursuant to the Privacy Act, 5 U.S.C.

§ 552(b). Herring died on July 23, 1996. Sylvia Herring was appointed the personal

representative of Herring’s estate on or about October 16, 1996.

As Herring’s personal representative, Ms. Herring filed a second amended

complaint against Keenan on December 9, 1996. In the second amended complaint, Ms.

Herring (“the plaintiff”) alleged that Keenan’s disclosures violated Herring’s

constitutional right to privacy, constituted cruel and unusual punishment in violation of

the Eighth Amendment, and deprived Herring of his liberty without due process of law in

violation of the Fifth Amendment. In the second amended complaint, the plaintiff prayed

for damages and a declaration of his constitutional rights.

Keenan filed a motion to dismiss the second amended complaint on January 24,

1997, pursuant to Rule 12(b)(1) and Rule 12(b)(6) in which she asserted the defense of

qualified immunity. She argued that the second amended complaint should be dismissed

because it fails to allege that Keenan engaged in conduct that violated clearly established

law. On January 8, 1999, the district court referred the motion to dismiss to a magistrate

judge for a report and recommendation regarding whether the facts alleged in the second

amended complaint demonstrated that Keenan’s disclosures violated clearly established

law.

The magistrate judge submitted his report and recommendation on February 24,

1999. He recommended that the motion to dismiss should be granted on two grounds.

5
First, the second amended complaint failed “to present factual allegations which would

demonstrate that Keenan’s disclosures were not supported by a compelling interest.”

Second, “in late 1993, the contours of the right of privacy were not sufficiently clear to

place a probation officer on notice that disclosure of a probationer’s HIV test or HIV

status to his employer and his close relative would violate this right.”2 The magistrate

judge also noted that “[n]o decision of the United States Supreme Court or the United

States Court of Appeals for the Tenth Circuit has specifically considered the parameters

of the constitutional right to privacy in the context of the limited governmental disclosure

of one’s HIV status.”3

On May 5, 1999, the district court entered its order denying Keenan’s motion to

dismiss the right to privacy claim. The court dismissed with prejudice Herring’s Eighth

Amendment claim, and his claim that Keenan’s disclosures deprived him of his liberty

without due process of law. The district court also dismissed the request for a declaratory

judgment.

The district court held that the allegations in the second amended complaint that

Keenan had violated the guidelines for probation officers for supervising probationers

2
The second amended complaint also alleges on information and belief that
Keenan also contacted Herring’s roommate to tell him that Herring was HIV positive.
This allegation was withdrawn by Herring’s counsel during the April 2, 1997, hearing on
the motion to dismiss.
3
In the responsive brief, the plaintiff concedes that A.L.A. v. West Valley
City, 26 F.3d 989 (10th Cir. 1994) was “overlooked” by the parties when the motion to
dismiss was pending in the district court.

6
exposed to HIV were sufficient to satisfy the plaintiff’s burden of demonstrating that the

disclosures were not supported by a compelling interest. The district court also held that

this court’s decisions in Eastwood v. Department of Corrections of the State of Okla., 846

F.2d 627 (10th Cir. 1988), and Lankford v. City of Hobart, 27 F. 3d 477 (10th Cir. 1994),

demonstrate that “the contours of the constitutional right to privacy as it relates to

dissemination of one’s actual or potential HIV status were clearly established in late

1993.”

Keenan filed this timely interlocutory appeal on June 3, 1999. “A defendant may

immediately appeal the denial of a 12(b)(6) motion based on qualified immunity to the

extent it turns on an issue of law.” Prager v. LaFaver, 180 F.3d 1185, 1190 (10th Cir.

1999) (citing Behrens v. Pelletier, 516 U.S. 299, 307 (1996)).

III

Keenan contends that the district court erred in rejecting her qualified immunity

defense because “[a]t the time of the alleged disclosures in this case, there were no

Supreme Court or Tenth Circuit decisions addressing whether limited disclosure of

information regarding a probationer’s HIV status fell within a clearly established

constitutional right of privacy.” This court reviews the denial of a motion to dismiss de

novo. Prager, 180 F.3d at 1190.

The Supreme Court has instructed that in reviewing the denial of a claim of

7
qualified immunity, “a court must first determine whether the plaintiff has alleged the

deprivation of an actual constitutional right at all, and if so, proceed to determine whether

that right was clearly established.” Conn v. Gabbert, 526 U.S. 286, 290 (1999). “To

overcome the qualified immunity defense, the plaintiff must identify a clearly established

statutory or constitutional right of which a reasonable person would have known, and then

allege facts to show that the defendant’s conduct violated that right.” Breidenbach v.

Bolish, 126 F.3d 1288, 1291 (10th Cir. 1997).

A

The second amended complaint alleges that Keenan violated Herring’s right to

privacy by disclosing information regarding his HIV status to his sister and his employer.

Our threshold question, therefore, is whether there is a constitutional right to privacy that

protects information concerning a person’s health from being disclosed to others by

government officials. Keenan contends that there is no clear right to privacy in the non-

disclosure of such personal information because the Supreme Court has never directly

held that such a right exists. This circuit, however, has repeatedly interpreted the

Supreme Court’s decision in Whalen v. Roe, 429 U.S. 589 (1977), as creating a right to

privacy in the non-disclosure of personal information. See e.g., Slayton v. Willingham,

726 F.2d 631, 635 (10th Cir. 1984) (holding that the Supreme Court explicitly recognized

the constitutional right to privacy in Whalen v. Roe); Mangels v. Pena, 789 F.2d 836, 839

(10th Cir. 1986) (“Due process thus implies an assurance of confidentiality with respect

8
to certain forms of personal information possessed by the state.”); Eastwood, 846 F.2d at

630-31 (10th Cir. 1988) (“This penumbra [of a variety of provisions in the Bill of Rights]

protects two kinds of privacy interests: the individual’s interest in avoiding disclosure of

personal matters and the interest in being independent when making certain kinds of

personal decisions.”); Flanagan v. Munger, 890 F.2d 1557, 1570 (10th Cir. 1989) (“The

Supreme Court has recognized that the constitutional right to privacy protects an

individual’s interest in preventing disclosure by the government of personal matters.”)

This court’s 1994 decision in A.L.A. v. West Valley City, 26 F.3d 989 (10th Cir.

1994), is the first case in this circuit that recognized that there is a constitutional right to

privacy regarding disclosure by a police officer of the results of an arrestee’s HIV test.

Id. at 990-91. In so holding, this court stated: “There is no dispute that confidential

medical information is entitled to constitutional privacy protection.” Id. at 990. When

the plaintiff in A.L.A. was arrested, he had a piece of paper in his wallet that indicated he

had tested positive for HIV. Id. The district court granted summary judgment on the

basis that the plaintiff lacked standing because a subsequent test disclosed that he had

never been infected with HIV. Id. This court reversed and held that the plaintiff had

standing, reasoning that the actual validity of the test was “entirely irrelevant to whether

he has a reasonable expectation of privacy in the results.” Id. Based on the foregoing

Tenth Circuit authority, we conclude that Herring alleged a violation of a constitutional

right to privacy in the non-disclosure of information regarding one’s HIV status by a

9
government official.

B

Even though a plaintiff correctly alleges a violation of a constitutional right, he or

she has the burden of demonstrating that the law was clearly established at the time of the

deprivation of that right. See Hilliard v. City and County of Denver, 930 F.2d 1516, 1518

(10th Cir. 1991). A plaintiff “cannot simply identify a clearly established right in the

abstract and allege that the defendant has violated it.” See id. “The contours of the right

must be sufficiently clear that a reasonable official would understand that what he is

doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).

To determine whether the contours of the right to privacy in this matter were

sufficiently clear in late 1993, we must consider whether there was sufficient

correspondence between Keenan’s conduct and the prior law establishing the right to non-

disclosure of personal matters by a government officer. See Hilliard, 930 F.2d at 1518

(requiring a substantial correspondence between the conduct and prior case law);

Eastwood, 846 F.2d at 630 (requiring “some but not precise factual correspondence.”). A

plaintiff need not demonstrate that the specific conduct in this case had previously been

held unlawful, so long as the unlawfulness was “apparent.” See Hilliard, 930 F.2d at

1518. A plaintiff may satisfy his or her burden by showing that there is a Supreme Court

or Tenth Circuit opinion on point, or that his or her proposition is supported by the weight

of authority from other courts. Anaya v. Crossroads Managed Care Systems, Inc., 195

10
F.3d 584, 594 (10th Cir. 1999).

While A.L.A. is clear authority for the principle that under certain circumstances

the disclosure of an individual’s HIV status may violate a constitutional privacy

protection, it was decided in 1994, after Keenan’s disclosures in this matter.4

Furthermore, it does not answer the question whether, in 1993, a probation officer

violated clearly established law by disclosing to a close relative and a restaurant employer

of a probationer that he had tested positive for HIV. The parties have not cited a case, nor

has our research disclosed any Supreme Court or Tenth Circuit decision that has

addressed this question.

Though the Supreme Court has not addressed the question whether the right to

privacy applies to a limited disclosure of a probationer’s HIV status to his or her sister or

restaurant employer, the Court has distinguished between the rights available to an

ordinary citizen under the Fourth Amendment, and the privacy rights of a probationer.

Griffin v. Wisconsin, 483 U.S. 868, 873-875 (1987). In Griffin, the Court reasoned that

probation “[s]upervision, then, is a ‘special need’ of the State permitting a degree of

4
The plaintiff argues that even though A.L.A. was not decided until 1994, the
opinion demonstrates that the right to privacy in the non-disclosure of one’s HIV status
was clearly established in 1989 because the disclosure in that case was made in 1989. In
A.L.A., however, this court did not consider whether that right was clearly established in
1989 or whether the government official that disclosed the information was entitled to
qualified immunity. 26 F.3d 989. Rather, this court held that, in 1994, confidential
medical information is protected and the plaintiff had standing to pursue a claim for the
disclosure of that information. See id. at 990.

11
impingement on privacy that would not be constitutional if applied to the public at large.”

Id. at 875. The Court upheld a state regulation permitting the search of a probationer

without a warrant or probable cause. Id. at 875-76. In view of the fact that it was clearly

established in Griffin that a probationer’s right to privacy is limited, without further

guidance from the Supreme Court or this circuit, a reasonable probation officer in late

1993 could not be presumed to know whether a limited disclosure of a probationer’s HIV

status to his sister and restaurant employer would violate a probationer’s constitutional

rights.

In rejecting the magistrate judge’s recommendation to dismiss the action, the

district court stated that “Eastwood and Lankford clearly establish a right to privacy”

regarding information concerning a person’s HIV status. The district court held that “it

was Ms. Keenan’s responsibility ‘to relate established law to analogous factual settings.’”

Quoting Eastwood, 846 F.2d at 630. Since Lankford was not decided until June 14, 1994,

Keenan could not have related the holding in Lankford to the question whether disclosing

to Herring’s sister and his employer that Herring was HIV positive violated his

constitutionally protected right to privacy. Though Eastwood was an available source in

1993 for a reasonable government officer seeking “analogous factual settings,” in order to

avoid intruding on an individual’s constitutional right to privacy, the facts alleged in the

complaint in Eastwood bear no resemblance to the conduct attributed to Keenan in this

matter.

12
 In Eastwood, the plaintiff, an employee of the Oklahoma Department of

Corrections (“DOC”), sought damages pursuant to 42 U.S.C. § 1983 against fellow DOC

employees for violating her right to privacy, and sexually harassing her, resulting in “an

offensive work environment.” 846 F.2d at 630. Eastwood’s complaint alleged that (1) a

DOC investigator forced her to answer a number of embarrassing questions about her

sexual history; (2) DOC employees published “offensive and insulting drawings of her

within the DOC facility;” and (3) DOC employees repeatedly made “insulting and

offensive remarks” about her. Id. at 630-31. In response to these allegations, the DOC

employees argued that the questions concerning the plaintiff’s sexual history were

designed to test the validity of her complaint that she had been sexually assaulted and

molested by a DOC employee who had put a drug into her drink to cause her to lose

consciousness. Id. at 631. This court concluded that a trier of fact could find, instead,

that the defendants’ motive in forcing her to reveal her prior sexual history, and their

subsequent conduct, including the publication of offensive drawings, was “to harass

plaintiff into dismissing the complaint and quitting her job.” Id. at 631. Based on this

analysis of the facts alleged in the complaint, this court affirmed the district court’s order

denying the motion to dismiss [on the basis of qualified immunity.] Id.

The dispositive facts relied upon by the court in Eastwood are in stark contrast to

those alleged in the second amended complaint. Eastwood was a state employee, free

from any restrictions on her federal constitutional rights. Herring was a probationer

13
subject to some limitations on his constitutional rights because of his status. Eastwood

was forced by a DOC investigator to disclose information about her sexual history,

ostensibly to verify her accusation of sexual harassment by a fellow employee. Herring

voluntarily informed his probation officer that he had taken an HIV test and believed that

he might be infected with that virus. This court concluded that the fact that Eastwood’s

fellow employees published offensive and insulting drawings within DOC facilities, and

made insulting and offensive remarks concerning her, supported an inference that the

DOC defendants’ motive was to create a hostile work environment in order to harass her

into withdrawing her complaint and terminating her employment. Herring did not allege

any facts showing that Keenan had a comparable, improper motive in her limited

disclosures concerning Herring’s medical condition. To the contrary, the second

amended complaint alleges facts that demonstrate that Keenan’s sole purpose was to

protect others from being accidentally exposed to HIV. The plaintiff alleged in the

second amended complaint that Keenan disclosed Herring’s medical condition to his

employer, and requested that Herring be discharged, because she believed that it was

unlawful under Colorado law for a restaurant to employ a person as a waiter who has

tested positive for HIV.

There is no substantial correspondence between Keenan’s limited disclosure to

Herring’s sister and his employer of personal medical information volunteered to her by

Herring and the conduct of the DOC investigator in Eastwood in forcing a fellow

14
employee to reveal information about her prior sexual history as part of a sexual

harassment campaign to induce her to quit her job. 846 F.2d at 631. Furthermore, even if

we were to agree with the plaintiff that this court’s holding in Lankford applies to conduct

committed prior to the publication of that decision in 1994, that matter involved the

seizure from a local hospital by a police chief of private medical records of a police

dispatcher in order to prove that she was a lesbian. 27 F.3d at 479. No comparable abuse

of authority occurred in the matter sub judice. Herring voluntarily disclosed medical

information to his probation officer, who in turn disclosed the information under the

belief that it was against Colorado law for an HIV positive person to be employed as a

waiter in a restaurant.

The district court’s reliance on Mangels v. Pena, 789 F.2d 836 (10th Cir. 1986), is

also misplaced. Though this court recognized in Mangels that information of an intimate

or otherwise personal nature may be constitutionally protected, this court concluded that

the plaintiffs had no legitimate expectation of privacy and that their constitutional rights

were not violated. In Mangels, the plaintiffs, two fire fighters employed by the Denver

Fire Department, brought an action under 42 U.S.C. § 1983 against the City and County

of Denver, the Mayor of Denver, the fire chief of the Denver Fire Department, and the

Civil Service Commission of the City and County of Denver. They alleged, inter alia,

that the defendants violated their right to privacy by disclosing a police report to the

media that contained statements by the plaintiffs and witnesses, and the reports of

15
polygraph examinations, indicating that the plaintiffs had used contraband drugs. The

district court determined that “the right to privacy does not encompass the kind of

information allegedly released to the media.” Id. at 838. This court affirmed the district

court’s dismissal of the action. Id. at 840. In support of its decision, this court reasoned

as follows: “Validly enacted drug laws put citizens on notice that this realm is not a

private one. Accurate information concerning such unlawful activity is not encompassed

by any right of confidentiality, and therefore it may be communicated to the media.” Id.

at 839.

The facts in this case bear little resemblance to the disclosure to the media in

Mangels that two firefighters had used contraband drugs. In Mangels, as in Eastwood,

the plaintiffs were government employees of the defendants. Unlike Herring, they had no

restrictions on their personal freedom. In Mangels, the publication of the police report

was made to the media. Herring’s complaint does not allege that Keenan’s disclosure was

released to anyone other than his sister and restaurant employer. Furthermore, this court

ultimately concluded in Mangels that there was no violation of the plaintiffs’

constitutional right to privacy. The mere recognition in Mangels that in some cases

disclosure of personal information will result in a constitutional violation was not

sufficient to put a probation officer on notice that the disclosure of a probationer’s HIV

status to his sister and employer would violate the constitutional right to privacy.

Thus, while Eastwood, Lankford, and Mangels indicate that under some

16
circumstances, a release of personal information regarding a person by a government

officer may violate a constitutionally protected right to privacy, none of the cases discuss

the question whether the right to privacy protects a probationer who may be HIV positive

from a limited disclosure by his or her probation officer to persons whom the probation

officer believed might be affected by their contact with the probationer. The cases,

therefore, did not clearly establish such a right in 1993.

We also emphasize that the district court and the magistrate judge each considered

the same Tenth Circuit authority cited by the plaintiff in her opposition to the motion to

dismiss. The magistrate judge, after analyzing Mangels, Eastwood, and Lankford,

concluded that a reasonable probation officer “would not have known in late 1993 that

the disclosure of a probationer’s HIV status to his employer, sister, and roommate was an

unconstitutional infringement of the right [to privacy].” The district court, after

construing the same cases, concluded that “the contours of the constitutional right to

privacy as it relates to dissemination of one’s actual or potential HIV status were clearly

established in 1993.”

The plaintiff asserts that no less than seven federal courts outside of the Tenth

Circuit have “recognized the existence of a constitutionally protected privacy interest in

maintaining the confidentiality of an individual’s HIV status.” None of these cases,

however, address the question we must decide. See Glover v. Eastern Nebr. Com. Office

of Retardation, 686 F. Supp 243, 250-51 (D. Neb. 1988) (holding that a policy requiring

17
employees to submit to mandatory AIDS testing can be enjoined as violative of the Fourth

Amendment), aff’d, Glover v. Eastern Nebr. Com. Office of Retardation, 867 F.2d 461,

463-64 (8th Cir. 1989); Woods v. White, 689 F. Supp 874, 877 (W.D. Wis. 1988)

(“Casual unjustified dissemination of confidential medical information [regarding a

prison inmate] to non-medical staff and other prisoners can scarcely be said to belong to

the sphere of defendants’ discretionary function.”); Doe v. Borough of Barrington, 729 F.

Supp. 376, 382-85 (D.N.J. 1990) (holding that the disclosure by arresting officers to a

neighbor that the husband and father of the plaintiffs had AIDS violated the Fourteenth

Amendment rights of his wife and children); Doe v. City of Cleveland, 788 F. Supp 979,

986 (N.D. Ohio 1991) (holding that police officers sued in their official capacity are not

liable for a violation of a privacy interest where the police department did not have a

policy of deliberately failing to train its officers with respect to the confidentiality of

records); Doe v. Township of Plymouth, 825 F. Supp. 1102, 1107, 1109 (D. Mass. 1993)

(holding that the plaintiff had presented sufficient evidence of a violation of the right to

privacy to withstand a motion for a summary judgment where she presented evidence that

a police officer forced the victim of a theft to admit she had AIDS before he would return

a prescription medication that had been stolen from her residence); Doe v. City of New

York, 15 F.3d 264, 269 (2d Cir. 1994) (holding that the plaintiff had a right of privacy in

the contents of a settlement agreement that stated that the plaintiff had sued his employer

for failing to hire him because he was a single gay male and because his employer

18
suspected that he had AIDS).

None of the cases identified by the plaintiff involved a limited disclosure by a

probation officer to a probationer’s sister and restaurant employer of voluntarily exposed

information that the probation officer believed was necessary to protect them from the

possibility of an inadvertent exposure to HIV. Though a plaintiff is not required to show

that the specific conduct was previously found to have been held unlawful, there must be

a substantial correspondence so that the unlawfulness was apparent. See Hilliard, 930

F.2d at 1518. In the present case, the plaintiff has shown that there is “a clearly

established right in the abstract” to privacy from disclosure of personal information by

government officials. See Id. The plaintiff has not shown, however, that the district court

cases cited amount to a sufficient weight of authority establishing a clearly established

right of privacy in this case. The plaintiff has further failed to demonstrate that the

contours of that right were sufficiently clear in late 1993 so that a reasonable probation

officer would understand that he or she could not disclose to a probationer’s close relative

or restaurant employer that the probationer had tested positive to HIV. The plaintiff has

failed to demonstrate a substantial correspondence between Keenan’s disclosures and

conduct that has been held to violate the right to privacy in prior decisions. See id.

The plaintiff also argues that a reasonable government officer in Keenan’s position

would have known that she was violating Herring’s clearly established constitutional right

to privacy because the policies governing Keenan’s conduct as a probation officer

19
prohibited her from disclosing his HIV status without his consent. See Guide to Judicial

Policies and Procedures, Vol. X, ch. IV, p. 16, sec. 16(D). This court has held, however,

that the fact that an official discloses information in violation of his own internal

procedures does not make the disclosure a violation of a clearly established constitutional

right to privacy. See Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d

642, 647 (10th Cir. 1988) (quoting Davis v. Scherer, 468 U.S. 183, 194 (1984)). In

Davis, the Supreme Court held that “[o]fficials sued for constitutional violations do not

lose their qualified immunity merely because their conduct violates some statutory or

administrative provision.” 468 U.S. at 194. The Court warned that to hold otherwise

would subject officials to liability for a violation of any constitutional right, including

those that were not foreshadowed at the time of the violation, simply because the conduct

violated a regulation. See id. at 195. The Court also cautioned that subjecting officials to

a risk of liability for violation of policies and regulations would be particularly unsound

policy given that government officials are often “subject to a plethora of rules, often so

voluminous, ambiguous, and contradictory, and in such flux that officials can only

comply with or enforce them selectively.” Id. at 196 (internal quotations and citation

omitted). To ensure that a government official is subject to liability only for a violation of

a clearly established constitutional right, “there must be a Supreme Court or Tenth Circuit

decision on point, or the clearly established weight of authority from other courts.”

Anaya, 195 F.3d at 594. Thus, without a stronger indication from the courts that a

20
reasonable probation officer in Keenan’s position would have known that she was

violating Herring’s constitutional rights by disclosing his HIV status, rather than simply

violating an internal policy, we cannot say that Keenan violated Herring’s clearly

established constitutional right to privacy.

A reasonable government officer is presumed to be mindful of clearly established

law. V-1 Oil Co. v. Wyoming, 902 F.2d 1482, 1493 (10th Cir. 1990). In late 1993,

however, there were no decisions from any federal court that discussed whether a

probation officer had a duty not to disclose to a probationer’s sister and his restaurant

employer the fact that a probationer had voluntarily reported that he had taken an HIV test

and might be infected with HIV. The published decisions in late 1993 had made it clear

that the constitutional right to privacy precluded government officers from forcing a

fellow employee, Eastwood, 846 F.2d at 631, or the victim of a crime, Township of

Plymouth, 825 F. Supp. at 1109, to disclose personal information. It was also clear that

ordinary citizens had the right to be free from the disclosure of personal information for

an improper motive, such as sexual harassment, Eastwood, 846 F.2d at 631, and that a

prisoner had the right to be free from the disclosure of his medical information to non-

medical staff and other prisoners, Woods, 689 F. Supp. at 877. These cases did not

clearly establish that the limited right of privacy enjoyed by a probationer would be

violated by the disclosure of personal information alleged in the second amended

complaint. Neither did the internal policies governing the conduct of a probation officer

21
clearly establish such a constitutional right. Thus, Keenan is entitled to qualified

immunity for her disclosures of Herring’s HIV status to his sister and employer.

CONCLUSION

We reverse the district court’s order denying Keenan’s motion to dismiss because

we hold that the district court erred in ruling that Keenan violated Herring’s clearly

established right to privacy when she disclosed in 1993 that he was HIV positive to his

restaurant employer and his sister. The district court erred in concluding that Keenan was

not entitled to qualified immunity.

The judgment of the United States District Court for the District of Colorado is

REVERSED and REMANDED for further proceedings in accordance with this opinion.

22
No. 99-1263, Herring v. Keenan

SEYMOUR, Chief Judge, dissenting.

In holding that a probationer’s constitutional privacy right to non-

disclosure of his confidential medical information by his probation officer was

not clearly established in late 1993, the majority extrapolates from the Supreme

Court’s bare holding in Griffin v. Wisconsin, 483 U.S. 868 (1987), without

addressing the underlying analysis and reasoning used therein, ignores other

circuit precedent on point, and requires an inappropriately exacting factual

similarity between prior cases and the case at bar. In my judgment, at the time of

the events at issue, the law was clear that Mr. Herring enjoyed constitutional

privacy protection against involuntary disclosures of personal information

because there was no legitimate governmental interest in the disclosure, and Ms.

Keenan’s disclosure of such information was objectively unreasonable. For these

reasons, I respectfully dissent.

I

In assessing whether a qualified immunity defense lies for a government

official, we make two inquiries: “First, we must ask what was the clearly

established law with regard to the plaintiff[’s] constitutional rights at the time
those rights were allegedly violated by [the official]. . . . Second, if the law was

clearly established, we must ask whether [the official’s] conduct was ‘objectively

reasonable’ in light of this clearly established law.” Breidenbach v. Bolish, 126

F.3d 1288, 1291 (10th Cir. 1997).

A. Clearly established law as it existed in 1993

Ms. Keenan’s conduct here occurred in late 1993. By then, as the majority

acknowledges, this circuit had clearly recognized that the constitutional right to

privacy as defined by Whalen v. Roe, 429 U.S. 589 (1977), includes an

individual’s interest in avoiding disclosures of sensitive personal matters. See

Flanagan v. Munger, 890 F.2d 1557, 1570 (10th Cir. 1989); Eastwood v.

Department of Corrections, 846 F.2d 627, 630-31 (10th Cir. 1988); Mangels v.

Pena, 789 F.2d 836, 839 (10th Cir. 1986); Slayton v. Willingham, 726 F.2d 631,

635 (10th Cir. 1984). To ascertain whether Ms. Keenan’s conduct violated this

clearly established law, I agree with the majority that we must determine to what

extent in 1993 this constitutional right applied to a probationer against disclosures

by a probation officer. Precedent from the Supreme Court and other circuits

establishing the privacy rights of prisoners and probationers guides this

undertaking.

1. Griffin

As the majority acknowledges, in 1987 the Supreme Court in Griffin

2
upheld a probation regulation against a probationer’s challenge that it violated

his Fourth Amendment rights. The regulation at issue there required probationers

to consent to a search of their homes anytime a probation officer had “reasonable

grounds” to believe an offense was being committed. In reaching its conclusion,

the Court began its analysis with the statement that probationers “do not enjoy

‘the absolute liberty to which every citizen is entitled but only . . . conditional

liberty,’” due to the State’s interests in reducing recidivism and ensuring the

community is not harmed by the probationer’s being at large. Griffin, 483 U.S. at

874 (quoting Morrissey v. Brewer, 408 U.S. 471, 480 (1972)). Significantly, the

Court recognized that while these state interests “permit[] a degree of

impingement upon privacy that would not be constitutional if applied to the

public at large[, t]hat permissible degree is not unlimited, . . . .” Id. at 875

(emphasis added). Only after recognizing the probationer’s general right to

privacy did the Court turn to the question of whether this right was overly

impinged by the probation regulation, a determination made by balancing the

probationer’s rights against the governmental interests associated there. Griffin,

therefore, clearly established six years prior to the incidents here that

probationers retain a right to privacy under the Constitution which is violated

where the State impinges upon that right without a legitimate, governmental

purpose.

3
 The majority here simply relies upon the Court’s approval of the regulation

in Griffin to conclude that Mr. Herring’s privacy right was not clearly established

in this case. In so doing, the majority extrapolates from the Court’s naked

holding without ever acknowledging the underlying analysis and reasoning, and

fails entirely to apply that analysis and reasoning to the facts of this case. The

majority thus ignores the clear holding in Griffin that a probationer has a

constitutional right to privacy which is only limited insofar as the limitation is

justified by “the ‘special need[s]’ of the probation system.” Id. at 875. See also

Turner v. Safley, 482 U.S. 78, 89 (1987) (holding that prison regulations

impinging on prisoners’ constitutional rights are only valid where reasonably

related to legitimate penological interests); Doe v. Attorney Gen., 941 F.2d 780,

796 (9th Cir. 1991) (in 1988, law was clear that government may use private

information only if it can show that its use of the information advances a

legitimate state interest).

Although the legitimacy of the governmental interest was crucial to the

Griffin analysis, the majority fails to address what interest is at issue here. This

flaw proves fatal to its reasoning because, simply put, there was no legitimate

governmental interest in Ms. Keenan’s conduct. Her unauthorized actions were

both erroneous and objectively unreasonable because she acted in violation of

both established probation procedures and Colorado state law.

4
 In making the disclosures to Mr. Herring’s family and employer, Ms.

Keenan acted contrary to every written guideline addressing the disclosure of

confidential medical information contained in the U.S. Probation Manual, which

serves as “the authoritative standard for community supervision of federal

offenders.” Guide to Judiciary Policies and Procedures, vol. X (U.S. Probation

Manual) [hereinafter Manual], ch. IV, at 1; see App.A-1. 1 The Manual clearly

states the goal of “protecting the confidentiality of exposed persons” in their HIV

status, id., and mandates that “[o]fficers should not disclose HIV infection or

illness information without the offender’s informed written consent,” id. at 16;

App. at A-2. The Manual further prohibits probation officers from disclosing

information to employers without written approval by the officer’s supervisor or

chief probation officer. Id. at 38; App. at A-7. If the probationer opposes such

disclosure, it may not be made without a hearing by the court. Id. Finally, the

disclosure can only be with regard to a reasonably foreseeable risk the probationer

1
All of the guidelines referred to herein are set out in full as an appendix to
this opinion. See App. A-1-A-8. These guidelines are promulgated by
committees composed of federal judicial officers, and are prepared and distributed
by the Director of the Administrative Office under the supervision and direction
of the Judicial Conference. 28 U.S.C. § 604(d)(4). See also Guide to Judiciary
Policies and Procedures, vol. X, ch. IV at 16; App. at A-6 (guidelines governing
supervision of HIV-infected offenders promulgated by the United States Judicial
Conference Committee on Criminal Law and Probation Administration); id. at
36; App. at A-5 (standards governing disclosure of third-party risk information
promulgated by the Office of General Counsel).

5
poses to the employer or the public, and the risk must be related to the offender’s

past criminal conduct. 2 Id. at 36-37; App. at A-6.

Ms. Keenan also violated state criminal law, which prohibits the disclosure

of medical information to unauthorized persons. See Colo. Rev. Stat. § 18-4-412

(criminalizing the disclosure of medical information to an unauthorized person

without prior written authorization); Colo. Rev. Stat. § 24-4-1402 (the only

authorized disclosures are by medical personnel treating patients and made in the

form of reports to the state or local department of public health). In fact, Ms.

Keenan’s Manual specifically warned her that state civil and criminal penalties

could attach to the violation of a probationer’s confidentiality surrounding his

HIV status, and instructed her to learn the applicable state law. See Manual, ch.

IV, at 16, App. at A-2. In addition, Ms. Keenan was required to consult with the

probation office’s expert on HIV and state confidentiality laws upon learning of

Mr. Herring’s possible HIV status, a regulation undoubtedly intended to avert the

sort of violation which occurred here. See id. at 18; App. A-2, A-4.

Despite the statutes and guidelines described above, the government argues

that Ms. Keenan disclosed Mr. Herring’s purported HIV status to his employer

and family to prevent him from breaking Colorado law while on probation, citing

Mr. Herring’s criminal offense was driving while intoxicated, hardly the
2

type of activity that risks the transmission of HIV to family members, co-workers,
and restaurant patrons.

6
Colo. Rev. Stat. § 25-4-108. 3
It is clear, however, that Mr. Herring was not

violating section 25-4-108, which prohibits a person with a contagious disease

from working in the food service industry, because this statute is inapplicable to

HIV-positive individuals under Colorado’s health code. See Colo. Code Regs. §

11CR1, Reg. 6 (only persons prohibited from working in food service pursuant to

§ 25-4-108 are those infected with a disease transmittable through food handling).

Morever, reliance on this law was unreasonable because it was antiquated (passed

in 1913 and amended once in 1921) and has never been applied in any published

case. In fact, the only annotation to this statute contained in Colorado’s official

reporter cites to an article, published in 1988, describing the inapplicability of the

statute in the context of HIV-positive employees. 4

3
The government also argues that Ms. Keenan’s disclosure was intended to
avert the risk of HIV infection to the café’s customers and employees, and to Mr.
Herring’s family. In 1993 it was common knowledge that HIV transmission only
occurs through the exchange of bodily fluids, most often through sharing needles
or unprotected sexual intercourse. See, e.g., Harris v. Thigpen, 941 F.2d 1495,
1503 (11th Cir. 1991) (“virtually no evidence exists that HIV is spread through
casual (even intimate) non-sexual contact; . . . food; inanimate objects, e.g. toilet
seats, drinking fountains or eating utensils; insects; skin; vaccines; or water”).
There is no evidence in the record that Mr. Herring was an intravenous-drug user
or that he was having sexual relations with his family, his co-workers, or anyone
at the café. Therefore, the risk that he would transmit the disease to any of these
people was undeniably remote.

See Edward P. Richards, Communicable Disease Control in Colorado: A
4

Rational Approach to AIDS , 65 D EN . U.L. R EV . 127, 144-45 (1988). The article
not only states that this law is inapplicable to persons who are HIV-positive, it
also highlights that reporting a person’s HIV status to anyone other than the
(continued...)
7
 The Manual’s guidelines, with their reference to state statutes, reflect a

reasoned governmental commitment to preserve a probationer’s privacy in his

confidential medical information. It is significant that in Griffin the Court was

called upon to analyze the legitimacy of a governmental interest embodied in an

officially established policy. There the Court assessed the probation regulation’s

constitutionality in light of the probation system’s asserted special needs

underlying it. See Griffin , 483 U.S. at 875-79. Importantly for our purposes, the

Court concluded that the search of a probationer’s residence was “reasonable

within the meaning of the Fourth Amendment because it was conducted pursuant

to a valid regulation governing probationers ,” id. at 880 (emphasis added),

which was itself justified by the special needs of the probation system making the

warrant requirement impractical.

Here, however, we are asked to review the independent action of a

probation officer which was directly contrary to the published guidelines of the

U.S. Probation Office. Ms. Keenan cannot plausibly argue that her random,

unauthorized and illegal conduct provides a basis for a legitimate or reasonable

governmental interest sufficient to warrant the intrusion on Mr. Herring’s privacy

4
(...continued)
Colorado Department of Health is criminalized under Colorado law. Had Ms.
Keenan checked this law in the statute books, she would have known it was not
applicable to Mr. Herring and that her disclosure was in fact a crime under
Colorado law.

8
rights which occurred here. 5

It is true that violation of internal guidelines, or even state laws, does not

undermine a qualified immunity defense where the constitutional right was not

otherwise clearly established. See Davis v. Scherer , 468 U.S. 183, 194 (1984).

Such violations may be considered, however, where they are relevant to the

constitutional interest itself. See id. at 193 n.11 (recognizing that laws and

regulations “may bear upon” the existence of a constitutional interest). Ms.

Keenan’s violation of her own guidelines and state laws serves to point up the

fact that her actions served no legitimate probation interest to balance against Mr.

Herring’s privacy right. Without such an interest, as Griffin makes clear, the

5
The government argues that because Ms. Keenan would have to balance
the government’s interests to determine whether her conduct would violate Mr.
Herring’s constitutional right to privacy, the law could not be clearly established.
It is true that where a constitutional deprivation is determined by balancing
opposing factors, this mitigates against a finding of clearly established law. See
Medina v. City and County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992).
However, we have stated on numerous occasions that qualified immunity is
nevertheless abrogated if it was “sufficiently clear that Defendants should have
known the [governmental] interests would not survive a balancing inquiry.”
Patrick v. Miller, 953 F.2d 1240, 1246, 1249 (10th Cir. 1992). See also Prager v.
LaFaver, 180 F.3d 1185, 1191-92 (10th Cir. 1999) (balance in favor of plaintiff
should have been anticipated by officials and thus their qualified immunity was
abrogated), cert. denied 120 S. Ct. 405; Medina, 960 F.2d at 1498 (“[C]onduct
may be so egregious that a reasonable person would know it to be unconstitutional
even though it is judged by a balancing test.”). Because there was no legitimate
governmental interest to be balanced here, and in light of the fact that her conduct
violated state law and her own guidelines, Ms. Keenan should not be able to claim
qualified immunity simply because there was a balancing test involved.

9
impingement on Mr. Herring’s right to privacy right is impermissible under the

Constitution.

2. Other circuit authority

As the majority correctly recites, whether a right was clearly established

turns not only on whether there is Supreme Court or Tenth Circuit precedent on

point, but alternatively, on the “weight of authority from other courts.” Anaya v.

Crossroads Managed Care Sys., Inc. , 195 F.3d 584, 594 (10th Cir. 1999).

Notwithstanding this, the majority ignores the two cases in the federal courts of

appeals with the most substantial factual correspondence to the case at bar, see

Harris v. Thigpen , 941 F.2d 1495 (11th Cir. 1991), and United States v. Stine , 675

F.2d 69 (3d Cir. 1982), while concluding that the right was not clearly established

because there was no “further guidance from the Supreme Court or this circuit,”

Maj. Op. at 12.

These two cases, like Griffin , start from the premise that an offender retains

a constitutional privacy right which must be balanced against the government’s

legitimate interests to determine whether the probationer’s rights are

impermissibly impinged. In Thigpen , the Eleventh Circuit evaluated a prison

policy which segregated inmates on the basis of their HIV status, thereby

necessarily disclosing the inmates’ status to other prisoners, prison officials, and

visitors. The court recognized “the general principle” that prisoners retain their

10
constitutional rights, including the right to privacy, so long as they are not

inconsistent with inmate status or legitimate penological interests. See 941 F.2d

at 1512-13 (citing Turner , 482 U.S. at 84, Bell v. Wolfish , 441 U.S. 520, 545

(1979), and Houchins v. KQED, Inc. , 438 U.S. 1, 5 n.2 (1978)). After balancing

the prisoners’ privacy interests against the government’s asserted interests in

segregating HIV-positive inmates from the general prison population to prevent

transmission to other inmates and protect prison guards, the court concluded that

the HIV segregation policy was reasonable and therefore not a violation of the

prisoners’ privacy rights. See id. at 1521.

Similarly, in Stine , the Third Circuit employed the same analytical

framework to uphold a probation condition requiring a probationer to undergo

psychological counseling against his challenge that the requirement violated his

constitutional right to privacy. In so holding, the court specifically stated that a

probation condition which impinges on constitutional rights will be upheld only

where the condition of probation is reasonably related to the purposes of

probation and the impact on the probationer’s privacy rights is no greater than

necessary to carry out these purposes. See 675 F.2d at 72. 6

In contrast to Thigpen and Stine, the Sixth Circuit held in 1981 that no one
6

has a general constitutional right to privacy in the non-disclosure of personal
information. See J.P. v. DeSanti, 653 F.2d 1080 (6th Cir. 1981). This one case
does not minimize the clear weight of our circuit’s pre-1993 authority holding
(continued...)
11
 A comparison of the legitimate governmental interests in Thigpen and Stine

illustrates how devoid Ms. Keenan’s actions were of any significant probation

interest. The government’s interests in segregating the prisoners in Thigpen was

to reduce potential transmission of HIV in light of common documented risks

existing in a prison environment, which included bloody fights, intravenous-drug

use and needle-sharing, tattooing, and unprotected sexual activity. See Thigpen ,

941 F.2d at 1516-19. The government’s interests in the psychological counseling

requirement in Stine was to promote rehabilitation and decrease the likelihood of

recidivism. See Stine , 675 F.2d at 71-72. Those important penological and

treatment interests justified the intrusions on individual privacy rights at issue in

Thigpen and Stine . 7 As discussed above, Ms. Keenan’s actions in the present case

represent no such interests; her conduct neither assisted in Mr. Herring’s

rehabilitation nor protected anyone from a foreseeable risk of HIV transmission.

In sum, the law was clear in late 1993 that the Constitution provides a

(...continued)
6

that such a constitutional privacy right does exist, see discussion supra at 2, and
Thigpen and Stine’s application of that right to prisoners and probationers.

Moreover, as in Griffin, it was an officially established requirement in
7

Thigpen and Stine that was balanced against the plaintiffs’ privacy rights. See
Thigpen, 941 F.2d at 1499 (Department of Corrections policy); Stine, 675 F.2d at
70-71 (court-ordered probation condition). Here, the government asks us to
balance Mr. Herring’s privacy interest against Ms. Kennan’s personal decision to
take action when that action was contrary to the official guidelines of the
probation department, which specifically disavowed any governmental interest
whatsoever in the disclosure of HIV information.

12
privacy right to the non-disclosure of confidential information and that this

constitutional right applies to prisoners and probationers and unless limited by a

legitimate governmental interest. 8
Because Ms. Keenan lacked any legitimate,

probationary interest in disclosing Mr. Herring’s HIV status to his family and his

employer, her actions violated this clearly established law.

B. Objective unreasonableness

Because the majority concludes Mr. Herring’s claimed right was not clearly

established in late 1993, it never reaches the reasonableness prong of the qualified

immunity analysis. Given the lack of governmental interest in Ms. Keenan’s

conduct as established above, one can only conclude that it was objectively

unreasonable in light of the clearly established law. Ms. Keenan’s disclosure of

8
The majority requires an inappropriately exacting factual similarity
between prior cases and the facts sub judice to defeat the defense of qualified
immunity. The majority concludes that Ms. Keenan should benefit from qualified
immunity because in late 1993, “there were no decisions from any federal court
that discussed whether a probation officer had a duty not to disclose [the
probationer’s confidential medical information] to a probationer’s sister and his
restaurant employer.” Maj. Op. at 22; see also id. at 11, 17, 19. To demonstrate a
clearly established right, a plaintiff need not identify a case holding
unconstitutional the exact conduct in question. Rather, “this circuit requires only
‘some but not precise factual correspondence.’” Eastwood, 846 F.2d at 630.
While the majority gives lip service to this standard, it then turns Griffin on its
head and rejects Mr. Herring’s claim because he has not cited a federal court of
appeals case with exactly the same type of plaintiff and defendant, and precisely
the same type of disclosure. In so doing, the majority relieves government
officials of their “incumbent” duty “to relate established law to analogous factual
settings.” Id.

13
highly sensitive confidential information was not only unauthorized, it was also

criminal. Indeed, trumping all arguments to the contrary is the fact that Ms.

Keenan did not even know whether Mr. Herring was actually HIV-positive; Mr.

Herring only told her he might be. This final fact destroys any claim to objective

reasonableness Ms. Keenan might make.

Even assuming that Ms. Keenan’s concerns were remotely reasonable, there

is no reason she had to act so quickly that her misconduct should be excused. See

Scheuer v. Rhodes , 416 U.S. 232, 246 (1974) (one purpose of qualified immunity

is to enable officers and officials to act swiftly when “there is obvious need for

prompt action” or in “an atmosphere of confusion, ambiguity, and swiftly moving

events”). She offers no reason, and I can think of none, that required her to

immediately disclose Mr. Herring’s HIV status, without pausing to consult the

applicable probation guidelines, review state law on the subject, meet with her

office’s expert on state confidentiality laws, or even confirm the verity of the

information she was passing along.

In sum, a reasonable probation officer in Ms. Keenan’s position would have

known that disclosing Mr. Herring’s HIV status would violate his constitutional

right to privacy.

II

14
 I cannot agree with the majority’s disregard of the clearly established law

as it existed in late 1993 and its misguided analysis of the qualified immunity

issue. Because Ms. Keenan’s conduct violated this clear law and was objectively

unreasonable, I would affirm the district court’s denial of Ms. Keenan’s motion to

dismiss.

I respectfully DISSENT . I would affirm the district court’s denial of Ms.

Keenan’s motion to dismiss on the basis of qualified immunity.

15
 APPENDIX *

GUIDE TO JUDICIARY POLICIES AND PROCEDURES, VOL. X

CHAPTER IV. SUPERVISION SERVICES

Part A. The Supervision of Federal Offenders .
(Monograph 109)

In June 1991, the Probation and Pretrial Services
Division published Supervision of Federal Offenders,
Monograph 109 . The document serves as the
authoritative standard for community supervision of
federal offenders. U.S. probation officers should refer
to the monograph for the development and
implementation of all supervision policies and
procedures.

Part B. Administrative Procedures for Probation and Supervision
Release Supervision .

....

16. Supervision of HIV-Positive Offenders .

The Judicial Conference Committee on Criminal Law and Probation
Administration has promulgated guidelines for probation officers for
supervising offenders who have been exposed to human immunodeficiency
virus (HIV). The guidelines are intended to provide guidance in
preventing the transmission of HIV within the community as well as
protecting the confidentiality of exposed persons . HIV infection refers to
the condition of persons who are known to have been exposed to HIV and
who are either asymptomatic or have symptomatic HIV disease. Acquired
immune deficiency syndrome (AIDS) is the most serious form of HIV
disease.

For purposes of this Appendix, underlined emphasis is in original and italicized
*

emphasis is added.

A-1
Officers in each district should learn the State laws which govern the use
of HIV tests and the disclosure of their results. State statutes also address
civil and criminal penalties which attach to violation of confidentiality .
Officers should only implement the guidelines in a manner consistent with
State law. The guidelines are as follows:

A. Officers, in consultation with the resource person in the office,
should evaluate the HIV-positive person and develop a case plan,
keeping in mind education, counseling, and treatment components.

B. Officers should not supervise offenders with HIV infection,
including those who have developed AIDS, differently than any
other offender unless medically indicated on the basis of symptoms
or coexisting infections.

C. Officers should instruct the offender of the importance of
self-disclosure of HIV infection to prospective sexual/drug
partners. The individual should be advised of possible civil
or criminal liabilities for transmission of HIV to another person.

D. Officers should not disclose HIV infection or illness information
to the offender’s family members, parents, or sexual/drug partners
without the offender’s informed, written consent. If the offender
will not consent to disclosure and State law permits non-consensual
disclosure to public health officials, the officer should notify such
officials. Notification of other third parties is the responsibility
of the exposed person. Partner notification programs conducted by
public health agencies encourage patient and physical responsi-
bility for third-party notification and in many States assume the
burden for confidentiality and ensuring notification by trained
disease control specialists.

E. Officers in all cases should first attempt to have the offender
give informed, written consent authorizing the release of information
about HIV infection to the U.S. marshal, residential facilities, half-
way houses, and jails. In the absence of such written consent, this
information should be disclosed to the U.S. marshal when a
violator’s warrant is issued and to the health care provider and/or
supervisor of the halfway house or jail facility when the offender
is placed in their custody.

A-2
 F. Officers should seek the written, informed consent of the offender
before making further disclosure when information concerning
an individual’s HIV antibody test result or information concerning
a diagnosis of HIV infection is disclosed to the officer by a third
party or by the offender. In preparing the consent form, officers
should attempt to obtain an authorization to disclose to those
individuals who have a legitimate need to know such as sexual/
drug partners, public health officials, health care and drug treat-
ment providers, custodial officers, and the court.

When an informed, written consent is obtained, information
concerning an offender’s diagnosis of AIDS, positive test
results for HIV, and signed consent forms should be reported in the
case record, but kept in an envelope in a portion of the file marked
“Confidential Information.” Pretrial diversion reports, postsentence
reports, and any other social history investigations contained in the
offender’s case file which contain such confidential medical
information should also be placed in the envelope marked
“Confidential Information.” Redisclosure of test results or an
offender’s medical condition should not be made without specific
additional consent by the offender.

Confidential record information should be treated like other medical
record information and may be shared with other staff who are
associated with the offender and have a legitimate, professional
need to know.

G. Officers should not disclose information regarding offenders with
HIV infection in presentence reports without the offender’s
written, informed consent unless it is relevant to the offense
charged such as a sexual assault. The court, however, may require
the officer to disclose all known medical information about the
offender in order to determine its relevancy in the disposition of
the case. In this situation the officer should confidentially advise
the court of the offender’s positive HIV test results, current
symptomatic status, and refusal to give consent for disclosure of
this information pursuant to the provisions of Rule 32(c)(3)(A) of
the
Federal Rules of Criminal Procedure.

A-3
 H. Printed education materials on communicable diseases and
infection control precaution should be made available to all
offenders in office waiting rooms and given to officers for
distribution and discussion with offenders and their families.
Staff may use appropriate locally available written materials
from community HIV and AIDS testing and counseling sites.
Officers should identify available local resources (medical, social,
and psychological services for people with HIV infection and
local public health agencies) and should assist their offenders
upon request in gaining access to such services.

I. Each probation office should identify and designate an officer
as an HIV resource person. That individual will participate in
regional training activities concerning HIV infection and will
gain a competent understanding of information related to HIV
infection. This resource person should be available to all staff
within the district as a consultant on HIV infection and related
issues. Officers should consult this resource person whenever
they encounter a case situation involving HIV or AIDS. The
resource person should become an expert in State confidentiality
laws and should provide the office with periodic updates on the
current state of the law.

....

Part D. Releasing File Information .

....

1. Releasing File Information (Probationers and Supervised Releasees) .

While a defendant may retain a copy of his/her presentence report
pursuant to the provisions of Rule 32(c)(3)(A) of the Federal Rules on
Criminal Procedure , probation and supervised release files are under the
court’s jurisdiction. Disclosure of the content of the files is the
prerogative
of the court . Files are maintained for the primary purpose of reporting
to the court on the conduct and condition of probationers (18 U.S.C.
§§ 3563 and 3565), and to aid persons under supervision to bring about
improvements in their conduct and condition. The court has a need for

A-4
 a free flow of information regarding the conduct of those under super-
vision. Persons who provide information to the probation officer,
including the offender, should feel secure in giving information and
know it will be used primarily by the court. Indiscriminate dissemina-
tion of information should be avoided. ....

....

2. Disclosure of Third Party Risk Information (Probationers and
Supervised Releasees) .

Probation officers have an equal obligation to control risk to the public
and provide correctional treatment to the offender. In meeting these
obligations, the officer has a duty to warn specific third parties of a
particular prospect of harm, physical or financial , which the officer
“reasonably foresees” the offender may pose to them. This obligation
exists whether or not the third party has solicited the information.

The Office of General Counsel has provided standards for
disclosure of information concerning risk in probation and
supervised release cases as follows:

A. The circumstances of all offenders under supervision should
be reviewed periodically to determine whether they might
pose a reasonably foreseeable danger to a third person.

B. Guidelines for disclosures of third party risk information
are selective . A warning is not required in every case,
only where a reasonably foreseeable risk of harm to a
specific third party is believed to exist.

C. The requirement an offender under supervision refrain from
engaging in a particular type of employment or inform his
employer or another specified third party about his criminal
conviction should generally be imposed by the court as a
formal special condition of probation. See United States v.
Alexander , 743 F.2d 472, 480 (7th Cir. 1984). Such a condition
is unnecessary if the offender is willing to comply with the
disclosure requirement and it is not an adversary issue.

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D. A disclosure requirement must be reasonably related to the
correctional treatment of the offender and/or the protection of
the public.

(1) Determination of Risk .

The determination of whether a “reasonably foreseeable”
risk exists depends upon a selective, case-by-case evaluation.
Among other factors, the evaluation should be based upon
the offender’s employment, offense, prior criminal
background, and conduct. The officer should pay special
attention to employment or other circumstances which present
the offender with an opportunity or temptation to engage in
criminal or antisocial behavior related to the offender’s
criminal background.

(2) “Reasonably Foreseeable” Risk .

“Reasonably foreseeable” risk means the circumstances of
the relationship between the offender and the third party
(e.g., employer and employee) suggest the offender may
engage in a criminal or antisocial manner similar or
related to past conduct.

(3) Making Disclosure Decisions .

(a) If the probation officer determines no reasonably
foreseeable risk exists, then no warning should be
given.

(b) If the officer determines a reasonably foreseeable
risk exists, the officer should decide, based upon
the seriousness of the risk created and the possible
jeopardy to the offender’s employment or other
aspects of rehabilitation, whether to: give no
warning, but increase the offender’s supervision
sufficiently to minimize the risk; give no warning,
but preclude the offender from the employment; or
give a confidential warning to the specific third
party sufficient to put the party on notice of the risk.

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 The officer may permit the offender to make the
disclosure with the understanding the officer will
verify it.

(c) If the court has not imposed a special condition
precluding the offender from specified employment
or requiring a warning to a specific third party,
decisions regarding disclosure or alternative
action must be approved by the officer’s supervisor
or the chief probation officer. Such approval should
be in writing.

(d) If the officer decides to preclude the offender from
a particular job or type of employment, and the
offender is unwilling to comply, the officer should
request the court hold a hearing on modification of
conditions. Rule 32.1, Federal Rules of Criminal
Procedure .

(e) If the officer decides to warn the offender’s employer
or another specific third party, and the offender
strongly opposes such action, the officer should
present the matter to the court and request either an
order directing the officer to make the warning or a
modification hearing to impose a condition that the
offender make the necessary disclosure.

Any questions concerning the propriety of a disclosure under
these guidelines that cannot be resolved after consultation with
the supervisor and chief probation officer may be directed to the
Office of General Counsel.

Examples of appropriate disclosure decisions are as follows:

....

P, a financial scheme criminal, starts his own “home security”
business. Although P could use information gained in the
business to burglarize homes or sell the security plans to the
underworld, neither possibility is very similar to his criminal

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conviction. On these facts a risk exists, but not a reasonably
foreseeable risk. No warning disclosure should be made . The
officer should simply monitor P’s monthly financial records,
income, and lifestyle.

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