                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT

                                   ___________

                                   No. 97-3295
                                   ___________

Wayne King,                             *
                                        *
      Plaintiff - Appellee,             *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Arkansas.
Charles Beavers,                        *
                                        *
      Defendant - Appellant.            *
                                   ___________

                                 Submitted: February 13, 1998
                                     Filed: July 9, 1998
                                   ___________

Before LOKEN and HANSEN, Circuit Judges, and DAVIS,* District Judge.
                            ___________

LOKEN, Circuit Judge.

      Wayne King filed this 42 U.S.C. § 1983 action against Deputy Sheriff Charles
Beavers, alleging that Beavers violated King’s Fourteenth Amendment right to liberty
in enforcing a guardianship order. Beavers appeals the district court’s denial of his
motion for summary judgment on qualified immunity grounds. We reverse.




      *
        The HONORABLE MICHAEL J. DAVIS, United States District Judge for the
District of Minnesota, sitting by designation.
                                           I.

      To review the denial of a pretrial qualified immunity motion, we accept as true
the facts alleged by King, the non-moving party. See Jackson v. Everett, 140 F.3d
1149, 1151 (8th Cir. 1998). In November 1995, Wayne King was seventy-seven years
old. He lived with his invalid wife, Bonnie, who could not walk or talk and required
constant care. Betty Tudor, an Arkansas Department of Human Services Consultant,
became concerned by King’s refusal to admit home health care aides. She visited the
Kings’ home and found them living in what she considered deplorable conditions.1
Before recommending that the State of Arkansas petition for custody of Mr. and Mrs.
King, Tudor contacted their only daughter, Marilyn Johnson, a California resident.

        Johnson came from California and began staying with the Kings on November
10. On November 17, at Tudor’s urging, Johnson sought the advice of an attorney and
petitioned the Johnson County Probate Court for her appointment as guardian of the
persons and estates of Mr. and Mrs. King. The petition was supported by a letter from
Clarksville physician Jack T. Patterson stating that King was “probably significantly
depressed and perhaps is a threat to both himself and to his wife.” On November 21,
after notice to King (which he claims he did not receive), the court held a hearing and
issued an order finding that Wayne and Bonnie King were incapacitated, appointing
Marilyn Johnson guardian of their persons and estates, and directing the Clerk of Court
to issue Letters of Guardianship to Marilyn Johnson of Paicines, California. Johnson
then filed a guardian’s bond, and the Clerk issued Letters of Guardianship reciting that
Johnson was “authorized to have the care and custody of and to exercise control over

      1
       Tudor made two trips to the Kings’ home in early November 1995. In a July
1997 affidavit, Tudor averred that the Kings spent most of the day sleeping, King fed
his wife mostly cereal, Mrs. King was incontinent and the bedroom reeked of urine,
Mr. King seemed upset by visitors, and Mrs. King seemed confused and in poor health.
The Department of Health stopped home health services on November 7 because King
would not admit health aides to care for his wife. King does not dispute these averrals.

                                          -2-
the person and to take possession of and administer the property of [Wayne and Bonnie
King] as authorized by law.”

       On November 29, Johnson County Sheriff Charles Nicklas received a call from
the King residence advising that Betty Tudor was having problems because Mr. King
would not obey the court order appointing Marilyn Johnson guardian. Sheriff Nicklas
sent Deputy Beavers to the King residence to assist Tudor. Beavers arrived and
reviewed the guardianship order and Letters of Guardianship. He discussed the matter
with Tudor, Johnson, and home health care workers and then tried to persuade Mr. King
to get out of his bed. When King refused, Beavers contacted Johnson County Attorney
Bruce Wilson, who said Beavers should try to persuade King to go with his daughter
to California.2 Beavers returned to King and tried to persuade him to leave with
Johnson. King refused, repeatedly stating, “I will kill myself,” and saying he hoped his
wife would die as well. Beavers again contacted Wilson, who advised that Beavers
should physically remove King from the home if necessary. After a final unsuccessful
attempt at persuasion, Beavers picked King up and carried him to the front door. At
that point, King said: “Put me down. I will walk. What are the neighbors going to
think?” King walked to the patrol car and rode to a nearby medical clinic, where
Johnson arranged for him to receive a shot.

       At the clinic, Johnson told Beavers she needed assistance getting the Kings to the
Little Rock airport and then to California. Beavers called Sheriff Nicklas, who said
Beavers could take King to Little Rock and could accompany Johnson and the Kings
to California if there was no expense to Johnson County. Beavers then called County
Attorney Wilson, who said he saw no problems with these proposed actions. Beavers
drove the group to the Little Rock airport and then accompanied Johnson and the Kings


      2
        Unbeknownst to Beavers, Wilson was also the private attorney representing
Marilyn Johnson in the guardianship proceeding. While this apparent conflict of
interest is disturbing, it does not affect Beavers’s claim to qualified immunity.

                                          -3-
on their plane ride to California. This travel took place without incident. Johnson paid
for Beavers’s plane ticket and paid him $430 for assisting her on the trip to California.
Beavers took the next flight back to Arkansas.

       In February 1996, Johnson voluntarily terminated Mr. King’s Arkansas
guardianship and California temporary conservatorship after an investigator concluded
that King was able to care for himself. In March, King returned to Arkansas, and Mrs.
King died shortly thereafter. An embittered King filed this action in November 1996
against his daughter and Beavers. The district court denied Beavers’s motion for
summary judgment on qualified immunity grounds, explaining:

       Had Beavers merely assisted Johnson, who had a court order and letters
       of guardianship giving her custody and control over both her father and his
       possessions, with removing King from the home, our conclusion would
       undoubtedly be different. Additionally, our conclusion might be different
       had Beavers, in reliance on the advice of the prosecuting attorney and the
       sheriff, merely assisted in transporting King to the airport at Johnson’s
       request. However, here Beavers went farther -- he went outside not only
       the county in which he had authority or jurisdiction to act but went outside
       the state. . . . We agree with King that these acts were not objectively
       reasonable.

Beavers appeals. We have interlocutory jurisdiction to consider issues of law raised by
the denial of a pretrial qualified immunity motion. See Murphy v. State of Ark., 127
F.3d 750, 753 (8th Cir. 1997). We review the denial of qualified immunity de novo.
                                          II.

        Qualified immunity protects government officials from damage liability unless
their discretionary acts violated clearly established statutory or constitutional rights. See
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity guards



                                            -4-
against the injustice of subjecting public officials to damage liability for the good faith
performance of discretionary duties they are legally obligated to undertake, and the
danger that the threat of such liability will deter officials from performing with the
decisiveness and judgment the public good requires. See Scheuer v. Rhodes, 416 U.S.
232, 241-42 (1974). Qualified immunity protects all but the plainly incompetent and
those who willingly violate the law. See Malley v. Briggs, 475 U.S. 335, 341 (1986).
We conclude Beavers is entitled to qualified immunity for two distinct reasons.

        No Clearly Established Federal Right. To recover under 42 U.S.C. § 1983, King
must prove that Beavers violated King’s constitutional rights while acting under color
of state law. To avoid a claim of qualified immunity, the right alleged must be “clearly
established,” that is, “[t]he 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). When qualified immunity is asserted
in a § 1983 action, we “determine first whether the plaintiff has alleged a deprivation
of a constitutional right at all,” and if so, “whether the right allegedly implicated was
clearly established at the time of the events in question.” County of Sacramento v.
Lewis, 118 S. Ct. 1708, 1714 n.5 (1998). King’s claim founders on these issues, which
the district court barely discussed in its otherwise lengthy opinion.

       King argues that Beavers “falsely imprisoned [King], denying him his
constitutional right to liberty.” False imprisonment is a state law tort claim. It is not
coextensive with the Fourteenth Amendment, which “protects only against deprivations
of liberty accomplished ‘without due process of law.’” Baker v. McCollan, 443 U.S.
137, 145 (1979). For example, the constitutional right to liberty is not violated if the
State takes custody of a citizen following a judicial determination that he is unable to
care for himself or is a serious risk to the safety of himself or others. Compare
O’Connor v. Donaldson, 422 U.S. 563 (1975), with Jackson v. Indiana, 406 U.S. 715,
738 (1972). Here, the Johnson County Probate Court’s guardianship order was of a
similar nature, except that it ordered King into the custody of a private guardian, his

                                           -5-
daughter Marilyn Johnson. King does not, and in our view could not, argue that
enforcement of the guardianship order violated his substantive due process right to
liberty.3

       Instead, King argues that “no objectively reasonable officer would have believed
that the guardianship order and Letters of Guardianship gave him authority to remove
the ward to California.” In other words, King’s entire claim is based upon the
proposition that the Fourteenth Amendment required a second court order before
guardian Johnson, with the assistance of state actors such as DHS Consultant Tudor,
County Attorney Wilson, Sheriff Nicklas, and Deputy Beavers, could move the
unwilling King from his home to his legal guardian’s place of residence. Of course, the
proper scope and import of the probate court’s guardianship order and Letters of
Guardianship are questions of state law. Yet neither King nor the district court cited
Arkansas authority supporting King’s contention, nor attempted to explain why any such
violation of state law would amount to a federal constitutional deprivation.

      There is apparently no Arkansas case law on the question whether a facially
unlimited guardianship order grants the guardian the power to change an unwilling
ward’s place of residence, and more particularly, to move the ward out of state. The
few cases we have found from other states tend to contradict King’s position:




      3
       Nor does King argue the order violated his right to procedural due process; in
any event, such a claim would not give rise to a cause of action against Beavers.
King’s complaint did generally plead violations of the First, Fourth, and Fifth
amendments, but he has not argued those claims on appeal. Cf. Sellers v. Baer, 28 F.3d
895, 898 n.4 (8th Cir. 1994), cert. denied, 513 U.S. 1084 (1995). Because Beavers
physically seized King in his home, it is likely that “any liability must turn on an
application of the reasonableness standard governing searches and seizures.” County
of Sacramento, 118 S. Ct. at 1715. However, analysis of this case under the Fourth
Amendment would not lead us to a different conclusion.

                                         -6-
      In this country the decisions uniformly hold the guardian may change the
      residence of the ward, whether infant or lunatic, to another state, if this be
      done in good faith and for the best interest of his ward, especially when
      with the consent or approval of the court appointing the guardian.

In re Waite, 180 N.W. 159, 161 (Iowa 1920); see generally 39 C.J.S. Guardian & Ward
§ 60 (1976).

       Nor does a review of the pertinent Arkansas statutes lend support to King’s
contention. The guardian is “entitled to the custody of the ward.” ARK. CODE ANN. §
28-65-301(a)(3). If the court decides that the guardian’s powers should be limited, it
“shall set forth the specific powers, authorities, and duties the guardian shall possess,”
§ 28-65-214(d); here, Johnson’s guardianship order conferred unlimited custodial
powers. Changing the ward’s residence is not among a statutory list of guardian
decisions that always require prior court approval. See § 28-65-302. But one of the
grounds for terminating an Arkansas guardianship is “[i]f the ward becomes a
nonresident of this state,”§ 28-65-401(b)(2) -- express legislative recognition that
guardians may effect a change of residence. Finally, in this case, the guardianship order
expressly recited that the guardian was a resident of California, a clear signal that the
probate court knew a change of King’s residence was implicit in appointing Johnson
guardian.

       In sum, King has no support for his assertion of a Fourteenth Amendment liberty
deprivation. In denying Beavers qualified immunity, the district court relied on Hurlman
v. Rice, 927 F.2d 74, 79-80 (2d Cir. 1991). But that was a Fourth Amendment decision
premised upon the court’s conclusion that an order to show cause directed to a child’s
mother in no way authorized police officers to seize the child from her grandparents’
home. This case is very different. Based upon our review of the relevant Arkansas
statutes, confirmed by what little case law there is elsewhere in the country, we
conclude that the probate court’s guardianship order implicitly included the


                                           -7-
power to change the ward’s residence to that of the guardian. Therefore, DHS
Consultant Tudor, the County Attorney, the County Sheriff, and Deputy Beavers did not
violate King’s Fourteenth Amendment rights by helping to escort him, involuntarily but
peacefully, to the guardian’s residence in California without additional authorization
from the probate court. Beavers is entitled to summary judgment dismissing this § 1983
action because he did not violate King’s constitutional rights by removing King from his
home, escorting King to the Little Rock airport, and accompanying King and Johnson
to California.

        B. Objectively Reasonable Conduct. Alternatively, we conclude that Beavers’s
conduct was objectively reasonable, that is, it “did not violate clearly established rights
of which a reasonable person would have known.” Bagby v. Brondhaver, 98 F.3d 1096,
1098 (8th Cir. 1996).4 Beavers went to the King home at the direction of Sheriff
Nicklas to assist DHS Consultant Tudor. He reviewed a court order and Letters of
Guardianship placing King in Johnson’s custody and control. He was advised by Tudor
that King should accompany Johnson to California. When King resisted, threatening
to kill himself, Beavers consulted the County Attorney and later the Sheriff and acted
consistently with their advice. He used minimal force in assisting King’s daughter and
legal guardian to move King and his invalid wife to the daughter’s home. While King’s
law enforcement expert opined that it was unreasonable for Beavers to travel far outside
his jurisdiction in assisting Johnson, that issue has nothing to do with whether the trip
violated King’s clearly established constitutional rights.




      4
        There is some support in our prior cases for the proposition that Beavers is
entitled to quasi-judicial absolute immunity because he was carrying out a facially valid
court order. See Robinson v. Freeze, 15 F.3d 107, 109 (8th Cir. 1994); Patterson v.
Von Riesen, 999 F.2d 1235, 1239 (8th Cir. 1993); Tymiak v. Omodt, 676 F.2d 306,
308 (8th Cir. 1982). However, qualified immunity is the norm. The absolute immunity
issue has not been raised, and we do not consider it.

                                           -8-
        Given the traumatic situation Beavers encountered, the instructions from his
superiors, and his wide-ranging responsibilities as an Arkansas law enforcement officer,
see ARK. CODE ANN. § 14-52-203, Beavers undoubtedly would have been remiss -- and
would have faced uncertain liability -- had he arrived at the King residence and failed
to take reasonable action to pacify the feuding family members. Some months later, Mr.
King’s custodial guardianship proved to be unnecessary and was terminated. But the
guardianship order was facially valid. Beavers was duty bound to help enforce that
order, and his actions in that regard were objectively reasonable because they were
consistent with the court’s grant of full guardianship to Marilyn Johnson. Public
officials facing situations like this must take quick and decisive action to mitigate risks
to health and safety. This is precisely the kind of good faith discretionary official action
that qualified immunity is intended to protect. Compare Miller v. Compton, 122 F.3d
1094, 1099 (8th Cir. 1997).

      The order of the district court denying the motion of defendant Charles Beavers
for summary judgment is reversed.

       A true copy.

              Attest:

                      CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                            -9-
