EDMONDSON, Circuit Judge, dissenting in part and concurring in the

result in part:

A great deal of today's opinion is right. I cannot concur,

however, in the decision on Karen Jurls.

In my judgment, when Ms. Jurls in 1992 acted or failed to act,

it was not already clearly established as a matter of law that the

rights, under the fourteenth amendment's due process clause, of

mental patients involuntarily civilly committed to state

institutions would always be the same as the rights, under the

eighth amendment, of convicts in prisons even if the circumstances

were otherwise similar. Therefore, I cannot agree that Ms. Jurls

(and every reasonable social worker in her place) would be expected

to know that Greason v. Kemp. 891 F.2d 829 (11th Cir. 1990) -- a

prison case decided on eighth amendment grounds -- clearly

established as a matter of law the rules governing her conduct

outside of a prison and under the fourteenth amendment.

The difference between a prison and some other kind of

institution and the difference between the eighth amendment and the

fourteenth amendment's due process clause are enough, at least, to

cloud the question. To apply Greason outside of a prison is not to

follow Greason, but to extend it. I do not believe that nonlawyers

must foresee such extensions or forfeit their immunity. To me,

this practice flies in the face of the idea that qualified immunity

protects against personal liability unless the defendant's acts

violated clearly established pre-existing law.

I know that the Supreme Court in Romeo wrote among other

things that persons civilly committed are "entitled to more
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considerate treatment and conditions of confinement than criminals

whose conditions of confinement are designed to punish." But those

words are not the holding of Romeo. They explain the Romeo

decision in part: they explain why the "deliberate indifference"

standard used for prisons was not adopted for mental institutions.

But Romeo does not hold that every act that violates the eighth

amendment rights of a prisoner will doubtlessly violate the due

process rights of those involuntarily civilly committed to state

institutions. In my view, this idea is not clearly established as

a matter of law now and was not so established in 1992.

I do not say that the Supreme Court's words that I have quoted

are totally without significance; they have some value as

predictors. But, I do say the words do not establish law, in

themselves. And, by the way, this Circuit has also never held that

the due process rights of mental patients always, at least, equal

the eighth amendment rights of prisoners. Therefore, today's

court's heavy reliance on Greason -- an eighth amendment decision

-- as the case that in 1992 had already clearly established rights

outside of the eighth amendment's prison context seems too shaky.

I cannot go along.

For me, Greason, in the light of the words I have quoted from

Romeo, does suggest that courts might ultimately decide that the

law requires mental health workers outside of prisons to follow or

to exceed the eighth amendment guidelines. But, in Lassiter, we

said for precedent to suggest something about the applicable law

was just not enough.
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We said the "pre-existing law must dictate, that is, truly

compel (not just suggest or allow or raise a question about), the

conclusion for every like-situated, reasonable government agent

that what defendant is doing violates federal law in the

circumstances." Lassiter v. Alabama A & M University, Bd. of

Trustees, 28 F.3d 1146, 1150 (11th Cir. 1994) (en banc) (emphasis

in the original).

In 1992, Greason did not (and in my view, as a matter of law,

could not) truly dictate the essential conclusion for Karen Jurls

and those like her who were working outside of prisons. I cannot

hold this social worker to a clearer understanding of the law --

particularly of the precedential authority of Greason -- than I

have.

I dissent from the result for Karen Jurls, but concur in the

result otherwise.
Enclosure