Herring v. Keenan

PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

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

Plaintiff – Appellee,

KATHLEEN KEENAN,

Defendant – Appellant.

No. 99-1263

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 him 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, ALARC?N,^(*) and BALDOCK, Circuit Judges.

_________________________

ALARC?N, 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
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.

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
to Keenan, Herring was employed as a waiter at the 50’s Caf?, 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 Caf?, 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 Caf?, 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.”

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 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. 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 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
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).

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 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 government official.

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 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
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.

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 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 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 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 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 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 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 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 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 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.

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.

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
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.

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.

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 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
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⁾

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 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 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 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⁾

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
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 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.

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.

APPENDIX⁽¹⁾

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.

. . . .

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

. . . .

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 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. . . . .

. . . .

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:

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.

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.

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.

A disclosure requirement must be reasonably related to the

correctional treatment of the offender and/or the protection of

the public.

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.

“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.

Making Disclosure Decisions.
1. If the probation officer determines no reasonably

foreseeable risk exists, then no warning should be

given.

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.

The officer may permit the offender to make the

disclosure with the understanding the officer will

verify it.

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.

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

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.

FOOTNOTES
Click footnote number to return to
corresponding location in the text.

^*. The Honorable Arthur L. Alarc?n, 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. 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.

^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.

^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).

^2.Mr. Herring’s criminal offense was driving while
intoxicated, hardly the type of activity that risks the transmission of HIV to
family members, co-workers, and restaurant patrons.

^3.The government also argues that Ms. Keenan’s
disclosure was intended to avert the risk of HIV infection to the caf?’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 caf?. Therefore, the risk that he would transmit the disease to
any of these people was undeniably remote.

^4.See Edward P. Richards, Communicable
Disease Control in Colorado: A Rational Approach to AIDS, 65 Den. U.L. Rev.
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 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.

^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.

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

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

^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.

^1.For purposes of this Appendix, underlined emphasis
is in original and italicized emphasis is added.

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