Petta v. Rivera

REVISED - JUNE 30, 1998
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
_____________________________
No. 95-40157
_____________________________
MELINDA PETTA, as Next Friend of Nikka Petta and Cavin Petta,
Minors; NIKKI PETTA, a Minor; CAVIN PETTA, a Minor,
Plaintiffs - Appellees,
VERSUS
ADRIAN RIVERA, Individually and in his official capacity as Texas
Department of Public Safety Highway Patrolman,
Defendant - Appellant,
and
TEXAS DEPARTMENT OF PUBLIC SAFETY,
Defendant.
__________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
__________________________________________________
June 9, 1998
Before DUHÉ and DENNIS, Circuit Judges, and DUVAL, District Judge1:
JOHN M. DUHÉ, JR., Circuit Judge:
Officer Adrian Rivera (“Rivera”) appeals the district court’s
denial of his motion for summary judgment based on the defense of
1
District Judge of the Eastern District of Louisiana, sitting
by designation.
qualified immunity. For the reasons that follow, we reverse and
render.
FACTUAL BACKGROUND
Because the parties dispute certain facts, we summarize the
relevant incidents drawing inferences in the light most favorable
to the nonmovants. See Pfannstiel v. City of Marion, 918 F.2d
1178, 1183 (5th Cir. 1990).
On January 15, 1990, Rivera, a Texas Department of Public
Safety (“TDPS”) Patrol Officer, stopped Melinda Petta (“Petta”) for
speeding on Farm Road 70, southwest of Corpus Christi. Inside the
car were Petta’s two children (“the Petta children”): a son, Cavin,
age 3, and a daughter, Nikki, age 7. Following a brief argument
over the speed Petta had been driving, Petta alleges Rivera ordered
her out of the vehicle. When Petta refused to exit and rolled up
her window, Petta alleges Rivera “lost his temper, becoming
agitated, irrational, threatening and verbally and physically
abusive.” Rivera then threatened to have her car towed. When
Petta still refused to exit her vehicle, she claims Rivera began
screaming and cursing her, tried to jerk her door open, and
attempted to smash her driver’s side window with his nightstick.
The alleged tirade culminated when Rivera menaced her with his .357
Magnum handgun. Petta panicked and fled the scene. She claims
that Rivera fired a shot at her car as she drove away.
What followed was a high-speed pursuit, involving other TDPS
2
officers as well as Rivera, that covered some 19 miles through the
crowded city streets of Corpus Christi. Petta claims that during
the chase Rivera again shot at her vehicle, attempting to blow out
her tires. The record shows that Rivera’s superiors ordered him
not to fire at the fleeing car and that Rivera disregarded those
orders. The pursuit ended with Petta’s arrest by several officers
at her apartment. Petta’s children were never taken into custody
nor were they touched by any officers.
PROCEDURAL HISTORY
Petta, on behalf of her two minor children, sued the TDPS and
Rivera, in both his official and individual capacities, asserting
various state law claims and § 1983 claims for use of excessive
force in violation of the Fourth and Fourteenth Amendments. The
court dismissed all state and federal claims against the TDPS and
Rivera, in his official capacity, as barred by the Eleventh
Amendment. As to Rivera in his individual capacity, the court
granted his motion for summary judgment on plaintiffs’ § 1983 claim
based on the Fourth Amendment. The court, citing Brower v. Inyo
County, 489 U.S. 593, 596-97 (1989), and California v. Hodari D.,
499 U.S. 621, 624-26 (1991), found that no “seizure” of the
children had occurred2 that would trigger Fourth Amendment
2
Plaintiffs did not appeal the district court’s dismissal of
their Fourth Amendment claims. Whether the district court
correctly found no “seizure” of the children under these facts is
therefore not before us.
3
protections.
Finding that Rivera had not moved for dismissal or summary
judgment with regard to the Fourteenth Amendment claims, the court
allowed Rivera an additional ten days to file an appropriate
motion. Rivera accordingly filed a supplemental motion for summary
judgment based on qualified immunity as to the Fourteenth Amendment
claims. The court, however, denied Rivera’s motion without
explanation and set for jury trial plaintiffs’ Fourteenth Amendment
claims and supplemental state law claims of assault and battery and
negligence against Rivera, in his individual capacity. The court
later granted Rivera’s motion to stay trial pending his
interlocutory appeal.
DISCUSSION
I.
Generally, appellate courts have jurisdiction to hear appeals
only from “final decisions” of district courts. See 28 U.S.C. §
1291 (West 1993). Certain collateral orders have been recognized
as “final decisions” within the meaning of § 1291, i.e., those
which “[1] conclusively determine the disputed question, [2]
resolve an important issue completely separate form the merits of
the action, and [3] [are] effectively unreviewable on appeal from
a final judgment.” Puerto Rico Aqueduct and Sewer Authority v.
Metcalf & Eddy, Inc., 506 U.S. 139, 142-43 (1993); see Cohen v.
Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949). A
4
district court’s order denying a defendant’s motion for summary
judgment based on the defense of qualified immunity is an
immediately appealable “final decision” under the collateral order
doctrine where the order denies qualified immunity purely as a
matter of law. Johnson v. Jones, 115 S.Ct. 2151, 2155 (1995);
Mitchell v. Forsyth, 472 U.S. 511, 528 (1985); Boulos v. Wilson,
834 F.2d 504, 509 (5th Cir. 1987). By contrast, when a district
court denies a qualified immunity defense based on its
determination that the summary judgment record raises a genuine
issue of fact concerning the applicability of the defense, such
order is not immediately appealable under the collateral order
doctrine. Johnson, 115 S.Ct. at 2156; Boulos, 834 F.2d at 509.
Here, the district court denied Rivera’s motion for summary
judgment based on the defense of qualified immunity without
supporting explanation. We are not precluded, however, from
reviewing the order. In such a case, the movant can claim on
appeal “that all of the conduct which the District Court deemed
sufficiently supported for purposes of summary judgment met the
Harlow standard of ‘objective legal reasonableness.’” Behrens v.
Pelletier, 116 S.Ct. 834, 842 (1996); Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). We must therefore review the record to
determine what conduct the district court attributed to Rivera in
finding that he had violated clearly established law and was not,
therefore, entitled to the defense of qualified immunity. Behrens,
5
116 S.Ct. at 842; Johnson, 115 S.Ct at 2159; Harlow, 457 U.S. at
818.
As our discussion, infra, demonstrates, our review of the
record shows that Rivera is entitled to the defense of qualified
immunity based on the undisputed fact that the Petta children
alleged purely psychological harm as a result of Rivera’s actions.
At the time of these events, it was not “clearly established” in
our law that such non-physical harm gave rise to a constitutional
tort.
II.
A police officer who, acting under color of state law,
subjects a United States citizen to a deprivation of his
constitutional rights is liable for damages to the injured party.
See 42 U.S.C. § 1983 (West 1997); Scheuer v. Rhodes, 416 U.S. 232,
237 (1974). The Supreme Court has read § 1983 “in harmony with
general principles of tort immunities and defenses rather than in
derogation of them.” Imbler v. Pachtman, 424 U.S. 409, 418 (1976);
see Tenney v. Brandhove, 341 U.S. 367, 376 (1951). Thus, a police
officer may interpose a defense of qualified immunity when faced
with a § 1983 action. Imbler, 424 U.S. at 418; Pierson v. Ray, 386
U.S. 547, 555-557 (1967); Rankin v. Klevenhagen, 5 F.3d 103, 108
(5th Cir. 1993).
The doctrine of qualified immunity shields a government
official performing discretionary functions from civil damages
6
liability, provided his complained of actions meet the test of
“objective legal reasonableness.” Harlow v. Fitzgerald, 457 U.S.
800, 819 (1982). We assess the “objective reasonableness” of an
officer’s actions in light of legal rules that were “clearly
established” at the time those actions were taken. Anderson v.
Creighton, 483 U.S. 635, 639 (1987).
We must take care to identify the relevant “clearly
established law” at the proper level of generality so that the
defense of qualified immunity will serve its intended purpose,
i.e., to allow officers “reasonably [to] anticipate when their
conduct may give rise to liability for damages.” Anderson, 483
U.S. at 639-40, quoting Davis v. Scherer, 468 U.S. 183, 195 (1984).
To that end, for a right to be “clearly established” we require
that its “contours ... must be sufficiently clear that a reasonable
official would understand that what he is doing violates that
right.” Anderson, 483 U.S. at 640. It is not necessary, however,
that prior cases have held the particular action in question
unlawful; “but it is to say that in the light of pre-existing law
the unlawfulness must be apparent.” Id., citing Mitchell, 472 U.S.
at 535 n.12 and Malley v. Briggs, 475 U.S. 335, 344-45 (1986).
In Siegert v. Gilley, the Supreme Court clarified the
“analytical structure” for addressing a claim of qualified
immunity. 500 U.S. 226, 231-32 (1991). Once a defendant pleads a
defense of qualified immunity, the trial judge must first determine
7
“whether the plaintiff has alleged a constitutional violation at
all” under current law. Siegert, 500 U.S. at 232; see Rankin, 5
F.3d at 108 (“When evaluating whether a plaintiff stated a
constitutional violation, we looked to currently applicable
constitutional standards.”). If the plaintiff has done so, the
judge then determines whether the defendant’s actions were
“objectively reasonable” with reference to “clearly established
law” at the time of the conduct in question. Siegert, 500 U.S. at
231; Rankin, 5 F.3d at 108. We have observed that this analysis
will at times lead to a “somewhat schizophrenic approach,” as, for
example, when a court must apply conflicting legal standards to the
two prongs of the test. See, e.g., Rankin, 5 F.3d at 109 & n.7.3
With those principles in mind, we now turn to the merits of
Rivera’s qualified immunity defense. We review de novo the denial
of Rivera’s motion for summary judgment on the basis of qualified
immunity. Hale v. Townley, 45 F.3d 914, 917 (5th Cir. 1995);
Salas v. Carpenter, 980 F.2d 299, 304 (5th Cir. 1992).
III.
3
In Rankin, we applied Hudson v. McMillian, 503 U.S. 1 (1992),
to the initial “constitutional violation” question, while applying
Shillingford v. Holmes, 634 F.2d 263 (5th Cir. 1981), to the
“clearly established law” question, even though Hudson had altered
the Shillingford test for Eighth Amendment violations. See Hudson,
503 U.S. at 9-10; Shillingford, 634 F.2d at 265. This apparent
conundrum was inevitable, however, because the qualified immunity
analysis requires us to evaluate the state of a “constitutional
violation” at two different times, i.e., when the plaintiff files
his lawsuit and when the allegedly violative conduct occurred. See
Siegert, 500 U.S. at 231-32.
8
A.
The Petta children claim that Rivera’s abusive behavior and
use of excessive force during the initial stop and ensuing chase
caused them severe emotional harm and thus deprived them of liberty
without due process, in violation of the Fourteenth Amendment.
See, e.g., Landol-Rivera v. Cruz Cosme, 906 F.2d 791, 796 (1st Cir.
1990); Pleasant v. Zamieski, 895 F.2d 272, 276 n.2 (6th Cir. 1990);
Sinaloa Lake Owners Ass’n v. City of Simi Valley, 882 F.2d 1398,
1408 n.10 (9th Cir. 1989).4 We assume without deciding that the
Petta children have alleged a constitutional violation under
current law5 because we find that, at the time of the incident in
question, the law was not “clearly established” that a police
officer’s use of excessive force resulting in purely emotional harm
rose to the level of a constitutional due process violation.
B.
4
We cite cases from other Circuits because, as our discussion,
infra Part III.B.4 demonstrates, we have not found cases in our
Circuit, post-Graham v. Connor, 490 U.S. 386 (1989), analyzing
excessive force claims under the Fourteenth Amendment where,
although in the context of an arrest or investigatory stop, no
technical “seizure” had occurred for Fourth Amendment purposes.
Cf. Ikerd v. Blair, 101 F.3d 430, 433 n.6 (5th Cir. 1996); Mouille
v. City of Live Oak, 918 F.2d 548, 550-51 (5th Cir. 1990).
5
But see Ikerd, 101 F.3d at 434 n.10 (declining to address
issue, in Fourth Amendment context, whether some physical injury is
required to state excessive force claim), and Hinojosa v. City of
Terrell, Texas, 834 F.2d 1223, 1230 (5th Cir. 1988)(declining to
reach issue, outside Fourth Amendment context, “whether or not some
type of physical injury will in every instance be necessary for [§]
1983 liability in a use of excessive force claim.). See discussion
infra Part III.B.3.
9
In order to assess what “clearly established” legal standards
governed Rivera’s actions on January 15, 1990, we must trace the
origins in this Circuit of a Fourteenth Amendment claim based on a
police officer’s use of excessive force.
1.
In Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir. 1981),
we first sketched the parameters of such a claim, relying in part
on Hall v. Tawney, 621 F.2d 607, 613 (4th Cir. 1980), and Johnson
v. Glick, 481 F.2d 1028, 1033 (2nd Cir. 1973). We defined the
“constitutional tort” thus:
If the state officer’s action caused severe
injuries, was grossly disproportionate to the
need for action under the circumstances and
was inspired by malice rather than merely
careless or unwise excess of zeal so that it
amounted to an abuse of official power that
shocks the conscience, it should be redressed
under Section 1983.
Shillingford, 634 F.2d at 265. Regarding the “severe injury”
requirement, we specifically noted that “[t]he degree of force
exerted and the extent of physical injury inflicted that together
amount to a constitutional deprivation must, of course, be
determined by the facts of a given case.” Id. We thus avoided
drawing any “bright lines” based on the severity of a particular
injury that would separate constitutional from non-constitutional
violations. Id., citing Baker v. McCollan, 443 U.S. 137 (1979).
Furthermore, in addressing the factual situation presented in
10
Shillingford,6 we focused as much on the potential for severe
injury created by the policeman’s conduct as on the actual injury
itself. Shillingford, 634 F.2d at 266 (“That the results of the
attack on Shillingford’s person were not crippling was merely
fortuitous. That same blow might have caused blindness or other
permanent injury.”).
Shillingford provided the standard for excessive force claims
in this Circuit for the next eight years.7 We note, however, a
6
Shillingford involved a policeman’s unprovoked attack of a
bystander who was attempting to photograph an arrest. The
policeman smashed Shillingford’s camera into his face with a
nightstick, destroying the camera and lacerating Shillingford’s
forehead. Shillingford, 634 F.2d at 264.
7
See, e.g., Raley v. Fraser, 747 F.2d 287, 289 (5th Cir. 1984);
Lynch v. Cannatella, 810 F.2d 1363, 1375 (5th Cir. 1987); Stevens
v. Corbell, 832 F.2d 884, 889 (5th Cir. 1987); Hinojosa v. City of
Terrell, Texas, 834 F.2d 1223, 1229 (5th Cir. 1988); Brumfield v.
Jones, 849 F.2d 152, 156 (5th Cir. 1988). In 1986, however, the
Supreme Court decided Whitley v. Albers, 475 U.S. 312 (1986), which
may have imposed a slightly different standard on excessive force
claims based on the Eighth Amendment’s prohibition of cruel and
unusual punishments. In Whitley, the Court stated that “whether
the measure taken inflicted unnecessary and wanton pain and
suffering ultimately turns on ‘whether force was applied in a good
faith effort to maintain or restore discipline or maliciously or
sadistically for the very purposes of causing harm.’” Whitley, 475
U.S. at 320-21, quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2nd
Cir. 1973). We observe, however, that in formulating its standard
for Eighth Amendment excessive force violations in 1986, the
Supreme Court relied on Johnson v. Glick, supra, the same case the
Shillingford court had relied on. See Shillingford, 634 F.2d at
265. Also, we have before held that the Whitley test did not
govern a Fourteenth Amendment excessive force claim in 1987, see
Stevens, 832 F.2d at 889, while at the same time noting the Supreme
Court’s statement in Whitley that “at least in the prison security
guard context, the ‘Due Process clause affords no greater
protection than does the Cruel and Unusual Punishment Clause.’”
Id., quoting Whitley, 475 U.S. at 327. Thus, it seems unclear
11
handful of decisions applying Shillingford that shed light on the
question before us.
In McFadden v. Lucas, 713 F.2d 143 (5th Cir. 1983), we
considered a prisoner’s § 1983 claim, alleging, inter alia, that
twenty-two correction officers forced him, through an “intimidating
show of force,” to shave his beard, which he wore for religious
reasons, in violation of the First and Eighth Amendments. In
determining whether the plaintiff had stated a claim that his right
to be free from cruel and unusual punishment had been violated, we
relied on Shillingford and Johnson v. Glick, supra. Id. at 146.
We found that plaintiff’s complaint
[fell] so short of stating a section 1983
cause of action as to warrant sua sponte
dismissal by the court below. The plaintiff
has nowhere alleged that he was physically
assaulted. In fact, the plaintiff nowhere
alleges that, except for the commonplace event
of being shaved, any touching of his person
occurred at all.
Id. at 146-47. We went on to state that, even if the officers’
show of force could be considered excessive, “we must, in the
absence of physical abuse, concur with the lower court’s
dismissal.” Id. at 147 (emphasis added). The absence of physical
abuse seemed to us, under those circumstances, to prevent the
whether there was a different standard for Eighth Amendment, as
opposed to Fourth and Fourteenth Amendment, excessive force claims
in 1986; as our discussion, infra, demonstrates, however, the need
to distinguish became clearer with the Supreme Court’s decisions in
Graham v. Connor, 490 U.S. 386 (1989), and Hudson v. McMillian, 503
U.S. 1 (1992).
12
alleged misconduct from “shock[ing] the conscience.” Id., quoting
Rochin v. California, 342 U.S. 165, 172 (1952).
In Coon v. Ledbetter, 780 F.2d 1158 (5th Cir. 1986), we
allowed a § 1983 claim for excessive force on behalf of a young
child under circumstances somewhat similar to ours. In Coon, the
police allegedly fired into a trailer attempting to apprehend the
trailer’s owner, Billy Dan Coon. Coon’s four-year-old daughter,
Racheal, was inside the trailer when the shot was fired. Although
the facts do not indicate that Racheal suffered anything but
“sleeplessness and nightmares” after the incident, we nonetheless
found that she had sufficiently alleged a violation of her
constitutional rights. Id. at 1160-1161.8
In Coon, we addressed the contours of the excessive force
claim in the context of whether the plaintiffs had adequately
alleged a constitutional violation. Id. at 1160-61. We discussed
the officers’ defense of qualified immunity only insofar as it
could arise on retrial. Id. at 1164. We did not, in any case,
8
Addressing why Racheal had alleged sufficient “personal loss
required for a constitutional claim,” and why her mother, Dana, had
not, we stated:
There was no evidence that any act of the deputies was
directed toward Dana; she was not directly involved in
the shooting and was with the deputies when it occurred.
Racheal, however, was in the trailer. There was evidence
that Coon staggered into the trailer and while he was
there attempted to protect Racheal from the gunfire, and
there was evidence that Deputy Gussberry fired a round of
heavy buckshot into the trailer at that time.
Id. at 1161.
13
squarely address the question whether non-physical injury alone
could satisfy the Shillingford test (although we certainly implied
that it would). Regarding the applicability of qualified immunity,
we merely observed that “[u]se of excessive force in making an
arrest violates clearly established rights, and the doctrine of
qualified immunity therefore does not shield an officer who uses
excessive force.” Id.
We do not call Coon into question, however. In 1986,
Shillingford was “clearly established law” in this area and we had
not yet drawn any “bright lines” between constitutional and non-
constitutional violations on the basis of physical or non-physical
injuries (see discussion infra at III.B.3). Thus, the Coon court’s
implicit finding that the officers’ conduct there satisfied the
Shillingford test (and in particular that Racheal Coon’s injuries
were “severe,” see Shillingford, 634 F.2d at 265) appears justified
in light of “clearly established” legal rules at that time.
Shortly after Coon, we decided Checki v. Webb, 785 F.2d 534(5th Cir. 1986), in which police officers allegedly chased the
plaintiffs at high speeds without probable cause and then
physically abused them at a police roadblock. Id. at 535-36. In
finding that the plaintiffs had filed suit in a proper venue under
28 U.S.C. § 1391 and had thus interrupted prescription under
Louisiana law, we considered where the plaintiffs’ constitutional
claim “arose” for purposes of the federal venue statute. Id. at
14
537-38. We held that, although the plaintiffs sustained all
physical injuries in the Middle District of Louisiana, they could
have properly alleged a constitutional violation arising out of the
officers’ conduct (the high-speed chase) in the Eastern District:
It cannot be reasonably argued that no serious
physical danger confronts civilians who are
forced to travel at speeds over 100 mph in
their attempt to flee a terrorizing police
officer. Furthermore, there is no valid
reason for insisting on physical injury before
a section 1983 claim can be stated in this
context. A police officer who terrorizes a
civilian by brandishing a cocked gun in front
of that civilian’s face may not cause physical
injury, but he has certainly laid the building
blocks for a section 1983 claim against him.
Id. at 538. Thus, we found venue proper in the Eastern District of
Louisiana. Id.Over a year later we decided Jefferson v. Ysleta Independent
School District, 817 F.2d 303 (5th Cir. 1987). In Jefferson, the
parents of an eight-year-old girl sued school officials under §
1983 for allegedly tying her to a chair with a jump rope for the
greater part of two days, denying her access to the bathroom and
thereby causing her “humiliation and mental anguish ... and
[impairment] in her ability to study productively.” Id. at 304.
We affirmed the district court’s rejection, on summary judgment, of
the defendants’ claim of qualified immunity:
We are persuaded that in January 1985, a
competent teacher knew or should have known
that to tie a second-grade student to a chair
for an entire school day and for a substantial
portion of a second day, as an educational
15
exercise, with no suggested justification,
such as punishment or discipline, was
constitutionally impermissible.
Id. at 305. We found, citing Shillingford, that plaintiffs’
allegations, if proven, “would implicate, inter alia, Jardine’s
fifth and fourteenth amendment rights to substantive due process,
specifically her right to be free from bodily restraint.” Id.9
Again, we did not squarely address whether non-physical injuries
(which are all that were alleged in Jefferson, although the claimed
constitutional wrongs clearly involved prolonged physical distress)
would satisfy the Shillingford “severe injury” requirement.
Instead, we focused on the outrageous conduct of the defendants.
See id.
Less than a year later, we addressed in Hinojosa v. City of
Terrell, Texas, 834 F.2d 1223 (5th Cir. 1988), the hypothetical
situation posited in Checki (supra, 785 F.2d at 538), but perhaps
reached a different result than the Checki panel had predicted.
There, the plaintiff sued several officers under § 1983 for
allegedly using excessive force against him where, in the course of
9
As our discussion of legal developments subsequent to
Jefferson demonstrates (see discussion infra III.B.3), we need not
distinguish Jefferson. We do point out, however, that the
constitutional right relied upon in Jefferson, while deriving from
the due process clause, was slightly distinct from that relied on
by the Petta children. Arguably, a due process right “to be free
from bodily restraint,” see Jefferson, 817 F.2d at 305, is
conceptually different from a due process right “to be free from
excessive force,” where the claimed excessive force does not
involve any bodily restraint or “damage to a person’s bodily
integrity,” see Shillingford, 634 F.2d at 265, whatsoever.
16
an altercation and subsequent arrest, an officer waved a gun in the
plaintiff’s face. We treated the plaintiff’s claims as arising
under the Fourteenth Amendment, however, because we found that the
alleged excessive force (waving a gun in the plaintiff’s face)
occurred before, and was not involved in, the plaintiff’s
subsequent arrest. See id. at 1229 n.7. We found that the
plaintiff had not produced sufficient evidence under Shillingford
to support the jury’s finding in his favor on the excessive force
claim. We therefore reversed the district court’s denial of the
defendant’s motions for judgment notwithstanding the verdict and
for new trial. Id. at 1229-31.
We found in Hinojosa that the plaintiff’s injury “which
[could] only be characterized as temporary emotional distress,
simply [did] not rise to a level that can be redressed for such a
claim under section 1983.” Id. at 1229. We then stated that
[t]here is absolutely no evidence ... that
Hinojosa was struck, or even touched, during
the incident. Hinojosa did not claim to have
suffered even minor physical injuries or
intrusion.
Id. (emphasis added). While those statements strongly suggest that
the Hinojosa panel would have required some physical injury to meet
the Shillingford “severe injury” requirement, the panel went on to
state that “[t]his Court does not here determine whether or not
some type of physical injury will in every instance be necessary
for section 1983 liability in a use of excessive force claim.”
17
Id.10
2.
In sum, Shillingford was the “clearly established law”
governing most, if not all, excessive force claims from January 15,
1981 until July 5, 1989, when we decided Johnson v. Morel, 876 F.2d
477 (5th Cir. 1989)(see infra Part III.B.3). We pause here,
however, to assess the state of the law just prior to Johnson to
demonstrate that Officer Rivera might not be entitled to qualified
immunity if Shillingford and its progeny had continued to be
“clearly established law” for the Petta children’s claims.
As the law stood under Shillingford, McFadden, Coon, Checki,
Jefferson and Hinojosa (see supra), our Circuit seemed to make an
analytical distinction between (1) cases deciding whether a
defendant was entitled to qualified immunity on a claim of
excessive force (see, e.g., Jefferson, 817 F.2d at 305; Lynch v.
Cannatella, 810 F.2d 1363, 1374 (5th Cir. 1987)) and (2) cases
determining whether a plaintiff had sufficiently alleged a cause of
action for excessive force under § 1983 (see, e.g., Shillingford,
634 F.2d at 265; Hinojosa, 834 F.2d at 1229-30).11 Such a
10
The Hinojosa panel seemed to cite with approval the Seventh
Circuit’s decision in Gumz v. Morissette, 772 F.2d 1395 (7th Cir.
1985), which stated that “the ultimate question here is, after all,
whether the use of force was so egregious as to be constitutionally
excessive, and the presence of some physical injury is certainly
relevant to that determination.” Id. at 1401.
11
Coon, we should note, is somewhat of an anomaly since it
addressed both questions, see Coon, 780 F.2d at 1160-61, 1164, but
18
distinction is justified in the following sense: in the former
cases, we focused on the “objective reasonableness” of the
defendant’s actions in order to further one purpose of the
qualified immunity defense, i.e., “to insure that [public
officials] do not hesitate to take actions reasonably calculated to
advance the public good,” Lynch, 810 F.2d at 1374; in the latter
cases, we focused, inter alia, on the severity of the alleged
injury, because the purpose of such threshold requirements in a §
1983 excessive force claim is “to distinguish potential
constitutional violations from mere breaches of state tort law.”
Hinojosa, 834 F.2d at 1229; Shillingford, 634 F.2d at 264. It
would then follow that the “severity” of a particular injury would
be determinative only in the second group of cases: i.e., where we
are assessing whether a plaintiff has adequately pled a
constitutional violation. See, e.g., Hinojosa, 834 F.2d at 1230;
Gumz, 772 F.2d at 1401.
If such were the analysis in the Fifth Circuit today, the
Petta children could plausibly argue that Rivera is not entitled to
assert the defense of qualified immunity: Rivera’s conduct
violated “clearly established law” (i.e., Shillingford) because it
would have been apparent to a reasonable officer that such conduct
(a high-speed chase, shooting at the fleeing car’s tires) in
response to a speeding violation (1) was grossly disproportionate
considered the severity of the plaintiff’s injury under neither.
19
to the need presented, (2) was motivated by malice,12 and (3) could
have caused severe injuries.13 See, e.g., Hinojosa, 834 F.2d at
1229. That is the position of the dissent (see infra at ___), as
we understand it. Our precedents intervening between 1988 and
January 15, 1990 (the time of the conduct in question here),
however, slightly alter the focus of our qualified immunity
analysis (see discussion infra Part III.B.3) and constrain us to
part company with the dissent.
3.
In Graham v. Connor, 490 U.S. 386 (1989), the Supreme Court
held that
all claims that law enforcement officers have
used excessive force--deadly or not--in the
course of an arrest, investigatory stop, or
other “seizure” of a free citizen should be
analyzed under the Fourth Amendment and its
“reasonableness” standard, rather than under a
“substantive due process” approach.
Graham, 490 U.S. at 395. The Court thus rejected the Johnson v.
Glick test (see discussion supra Part III.B.1) for those excessive
force claims that implicate the Fourth Amendment’s “explicit
12
In any event, plaintiffs could have argued that the summary
judgment record presented genuine factual disputes as to the first
two elements and that the district court’s denial of Rivera’s
qualified immunity defense was therefore unreviewable on appeal
under the collateral order doctrine. See discussion supra Part I;
see also Johnson v. Jones, 115 S.Ct. at 2156.
13
Under the Shillingford analysis, whether Rivera’s conduct in
actual fact caused “severe injuries” would only be an appropriate
inquiry in addressing whether the Petta children adequately alleged
a constitutional violation. See Shillingford, 634 F.2d at 266.
20
textual source of constitutional protection against this sort of
physically intrusive governmental conduct....” Id.14 The Court
endorsed the Johnson v. Glick test, however, in the context of an
Eighth Amendment excessive force claim. Id. at 398 n.11 (Johnson
v. Glick test “might be useful in analyzing excessive force claims
brought under the Eighth Amendment.”). Finally, the Court
recognized that the due process clause could have continuing
viability in excessive force claims not implicating a specific Bill
of Rights protection. Graham, 490 U.S. at 395 n.10 (because it is
unclear whether the Fourth Amendment extends to pretrial detainees,
“the Due Process Clause protects a pretrial detainee from the use
of excessive force that amounts to punishment.”).
Expressly relying on Graham, our en banc Court addressed, in
Johnson v. Morel, 876 F.2d 477 (5th Cir. 1989), whether the
plaintiff had stated a Fourth Amendment violation where an officer
roughly handcuffed him during an investigatory stop, allegedly
resulting in permanent scars on his wrists. Johnson, 876 F.2d at
14
The Fourth Amendment standard, as explicated by the Court,
assesses the “objective reasonableness” of an officer’s conduct by
focusing on
the facts and circumstances of each particular
case, including the severity of the crime at
issue, whether the suspect poses an immediate
threat to the safety of the officers or
others, and whether he is actively resisting
arrest or attempting to evade arrest by
flight.
Id. at 396, citing Tennessee v. Garner, 471 U.S. 1, 8-9 (1985).
21
478-79. We stated that “[t]here can be a constitutional violation
only if significant injuries resulted from the officer’s use of
excessive force.” Id. at 479-80.15 Notably, we appended the
following footnote to our “significant injury” holding:
We think it unlikely that such a significant
injury will be caused by unnecessary force
without significant physical injury. However,
on the facts before us here, we do not decide
whether a significant but non-physical injury
would be legally sufficient.
Id. at 480 n.1. Finding that the plaintiff had created a fact
issue as to whether his injuries were “significant,” we allowed him
to go forward with his excessive force claim. Id. at 480.
Judge Rubin, joined by six other Judges, concurred in the
Court’s judgment, but criticized the majority, inter alia, for
adding a “significant injury” requirement to the Fourth Amendment
claim. Johnson, 876 F.2d at 480-81 (Rubin, J., concurring).16
15
We set forth the required elements for an excessive force
claim based on a violation of the Fourth Amendment as:
(1) a significant injury, which
(2) resulted directly and only from the use of force that
was clearly excessive to the need; and the excessiveness
of which was
(3) objectively unreasonable.
Johnson, 876 F.2d at 480. At the same time, we “overrule[d] all
previous decisions of the circuit to the contrary.” Id.16
Significantly for our purposes, Judge Rubin remarked that
“[e]ven under the stringent Fourteenth Amendment ‘shock the
conscience’ test, a plaintiff could recover for a policeman’s use
of excessive force without demonstrating that he had suffered
severe, permanent, or physical injuries.” Johnson, 876 F.2d at 481(Rubin, J., concurring)(emphasis added). Judge Rubin cited Checki
22
Additionally, Judge Rubin dissented from the majority opinion
insofar as it read Graham to bar the plaintiff’s due process claims
for abuse that occurred before and after the arrest. Id. at 482-
84; see Graham, 490 U.S. at 394-95 & n.10.
Johnson v. Morel remained the law in this Circuit until Hudson
v. McMillian, 503 U.S. 1, 7-8 (1992), although itself in the Eighth
Amendment context, overruled by implication Johnson’s “significant
injury” requirement.17 See, e.g., Harper v. Harris County, Texas,
21 F.3d 597, 600 (5th Cir. 1994)(“We now hold that the Johnson
standard is no longer valid in the wake of Hudson v. McMillian
....”). Between July 5, 1989 and February 25, 1992, however,
Johnson v. Morel was “clearly established law” regarding an
excessive force claim brought under the Fourth Amendment. As we
have noted above, this is the relevant “legal window” within which
we must look to determine whether Officer Rivera’s actions on
January 15, 1990 were “objectively reasonable.”
The most significant development in our Circuit’s law
regarding excessive force claims and qualified immunity came,
v. Webb (see supra Part III.B.1) for the proposition that non-
physical injuries were cognizable under the due process clause.
Id. at 481 n.9.
17
Reversing the Fifth Circuit, the Supreme Court in Hudson held
that a prisoner was not required to prove “significant injury” as
a prerequisite to his Eighth Amendment excessive force claim;
instead, the Court adopted the Whitley v. Albers (see supra note 7)
“malicious and sadistic” standard for all Eighth Amendment
excessive force claims. Hudson, 503 U.S. at 6-7.
23
ironically,18 almost three years after the Johnson v. Morel window
closed, in Dunn v. Denk, 54 F.3d 248 (5th Cir. 1995), rev’d en
banc, 79 F.3d 401 (5th Cir. 1996). In Dunn, a police officer
arrested the plaintiff in January, 1990, and in doing so allegedly
threw her facedown in a ditch, put his knee in the small of her
back, handcuffed her, pulled her up by her arms and placed her in
his squad car. Dunn, 54 F.3d at 249. The plaintiff, who was on a
weekend pass from a mental institution and was being driven home by
her friend when they were stopped, alleged she suffered only minor
bruises but serious psychological injury. Id. She sued the
officer under § 1983 for malicious prosecution and use of excessive
force; the jury found for her on the latter claim. Id.
The Dunn panel found that the officer was not entitled to
qualified immunity, because “[i]t was clearly established before
January 1990, when Denk arrested Dunn, that both physical and
psychological injuries were compensable in civil rights actions.”
Id. at 250, citing Hinshaw v. Doffer, 785 F.2d 1260 (5th Cir. 1986)
and Keyes v. Lauga, 635 F.2d 330 (5th Cir. 1981). The Dunn
majority thus included “significant injury” as a component of the
restrospective, “clearly established law” prong of the qualified
18
Ironic, because normally we would look only to case law in
effect on January 15, 1990, to determine what law was “clearly
established” at that time. The two decisions in Dunn v. Denk are
relevant, however, because they provide a retrospective assessment
of what “clearly established law” was regarding a Fourth Amendment
excessive force claim in January, 1990. See Dunn, 79 F.3d at 402;
54 F.3d at 250.
24
immunity analysis:
Although no longer required, at the time of
this incident significant injury was a
necessary element of an excessive force claim.
Accordingly, to defeat Denk’s qualified
immunity defense Dunn was obliged to prove a
significant injury.
Dunn, 54 F.3d at 249 (emphasis added); see Siegert, 500 U.S. at
231; Rankin, 5 F.3d at 108-09 & n.7; see also discussion supra Part
III.B.1. Although he dissented, Judge Barksdale, like the
majority, viewed the “significant injury” requirement as an element
of the “clearly established law” guiding the officer’s conduct at
the time of the incident.19 He simply disagreed with the majority
that, under Johnson in 1990, it was “clearly established” that the
plaintiff had a constitutional right to be free from non-physical,
psychological injury resulting from excessive force. See Dunn, 54
F.3d at 256 (Barksdale, J., dissenting).
A fragmented en banc Court vacated the Dunn panel opinion and
found the officer entitled to qualified immunity. See Dunn v.
Denk, 79 F.3d 401, 403 (5th Cir.)(en banc), cert. denied 117 S.Ct
61 (1996). Eleven judges joined Part I of Judge King’s “majority”
19
Judge Barksdale initially observed: “It goes without saying
that, to avoid a qualified immunity defense, a plaintiff must claim
a constitutional violation that was clearly established at the time
of the alleged wrongful conduct.” Dunn, 54 F.3d at 253 (Barksdale,
J., dissenting). He later stated that “even assuming arguendo that
nonphysical injury can be ‘significant’ under Johnson, the question
remains whether this rule was ‘clearly established’ at the time of
the incident in issue, so as to place Officer Denk outside the
protection of qualified immunity.” Id. at 255.
25
opinion, six of those judges by way of separate concurrence.20
While conceding that under Hudson v. McMillian, supra, the
plaintiff’s injury may well have satisfied present constitutional
standards, see 79 F.3d at 402-03, Judge King continued her analysis
by “look[ing] to the state of the law when the arrest at issue
occurred.” Id. at 403, citing Harper, 21 F.3d at 601.21 Judge
King went on to state:
Given the explicit language of Johnson, and
its footnote 1 in particular, we conclude that
the law at the time of this arrest was
uncertain regarding whether “a significant
injury will be caused by unnecessary force
without significant physical injury.” On the
present facts, Denk was entitled to qualified
immunity from the claims asserted in this
20
Judge King’s opinion was joined by Judges Garwood,
Higginbotham, Davis and Duhé. Judge Barksdale concurred separately
in Part I of Judge King’s opinion, but dissented to Part II; he
was joined by Judges Jolly, Jones, Smith, Garza and DeMoss. Judge
Reavley, joined by Chief Judge Politz and Judges Wiener, Benavides,
Stewart, Parker and Dennis, dissented. Judge Dennis also wrote a
separate dissent. When we have sifted through the wreckage, it is
clear that Part I of the Dunn en banc decision commanded a majority
of the Court (eleven judges).
21
Thus, it seems clear that Judge King’s analysis was directed
towards the second prong of the qualified immunity analysis, i.e.,
whether the officer’s actions were “objectively reasonable” under
“clearly established law” at the time of the incident in question.
As support for that conclusion, we note that Judge King cited to
the part of Harper v. Harris County, Texas that emphasized “the
objective reasonableness of a government official’s conduct must be
measured with reference to the law as it existed at the time of the
conduct in question.” Harper, 21 F.3d at 601 (emphasis added).
Later on that same page, the Harper panel chided the district court
for “not consider[ing] the seriousness of the alleged injuries in
determining whether the officer’s conduct was objectively
reasonable.” Id. Such a qualified immunity analysis mirrors that
employed by both the panel and en banc decisions in Dunn.
26
case.
Dunn, 79 F.3d at 403, quoting Johnson, 876 F.2d at 480 n.1.22
This holding demonstrates the same qualified immunity analysis
as that employed by the Dunn panel majority and dissent, supra.
Judge King relied on the significance of the injury as, using the
defendant’s phrase, an “objective, validating event of the
reasonableness of force used in making an arrest.” Dunn, 79 F.3d
at 403. The dissent to the en banc decision confirms this view.
In arguing that the majority “distort[ed] the law of qualified
immunity,” the dissent advocated a focus, not on the results of the
officer’s actions (i.e., whether they caused “significant injury”)
but rather on the reasonableness of the actions themselves:
Qualified immunity is concerned only with the
reasonableness of an officer’s actions. Once
an officer uses objectively unreasonable force
to effect an arrest, he loses his qualified
immunity, whether the other elements of an
excessive force claim are clearly established
or not.
Dunn, 79 F.3d at 405, 407 (Reavley, J., dissenting). The dissent,
therefore, did not consider the severity of injury a component of
the “clearly established law” determining the “objective
reasonableness” of an officer’s actions. The dissent defined
“clearly established law” at a higher level of generality than the
22
We note that as of this date, this Court has never squarely
held that non-physical injury is sufficient to establish a
violation of the Fourth Amendment. A recent panel declined to
reach that very issue. See Ikerd v. Blair, 101 F.3d 430, 434 &
n.10 (5th Cir. 1996).
27
majority, i.e., the law clearly proscribes the use of objectively
unreasonable and excessive force by an arresting officer. Id. at
405. Judge King criticized the dissent’s position as having “no
support in the case law.” Id. at 403 n.1.
Thus, emerging from the en banc decision in Dunn is a
qualified immunity analysis that, at least for Fourth Amendment
excessive force claims, differs slightly from the analysis employed
in cases such as Coon, Jefferson and Lynch. See discussion supra
Part III.B.1. The principal difference, as we appreciate it, is
that Dunn relies on the severity of injury not only in defining a
constitutional tort under present law, but also as an “objective,
validating” factor in assessing the “objective reasonableness” of
an officer’s conduct.23 Irrespective, however, of the difference
between Dunn’s analysis and the qualified immunity cases going
before it, Dunn currently governs in this Circuit a qualified
23
Compare Dunn, 79 F.3d at 403 (relying on severity of injury
as “objective, validating event” in assessing objective
reasonableness of officer’s actions), with Jefferson, 817 F.2d at
305 (assessing school officials’ defense of qualified immunity
without considering severity of plaintiff’s injury ); Lynch, 810
F.2d at 1375-76 (relying on severity of injury as one of three
factors in determining whether officers’ conduct assumed
constitutional dimensions); Coon, 780 F.2d at 1163 (“[u]se of
excessive force in making an arrest violates clearly established
rights, and the doctrine of qualified immunity therefore does not
shield an officer who uses excessive force”; addressing qualified
immunity defense without considering severity of plaintiff’s
injuries). See also Anderson, 483 U.S. at 639-40 (intended purpose
of qualified immunity defense is to allow officers “reasonably [to]
anticipate when their conduct may give rise to liability for
damages.”)(emphasis added).
28
immunity analysis in the context of a Fourth Amendment excessive
force claim.24
4.
Dunn does not end our inquiry, however. Dunn addressed a
claim for excessive force grounded in the Fourth Amendment. See
Dunn, 79 F.3d at 402; 54 F.2d at 249. As we observed, supra, the
district court in this case dismissed the Petta children’s Fourth
Amendment claims on finding that they had not been “seized.” See
supra note 2 and accompanying text. Their remaining claims, then,
are grounded in the due process clause of the Fourteenth Amendment.
See Graham, 490 U.S. at 395 n.1.25 The question remains, then,
24
We appreciate that Dunn focuses on a narrow legal window
(June 5, 1989 to February 25, 1992) and will have increasingly
limited applicability over the passage of time. This is doubly
true insofar as Hudson v. McMillian may have foreclosed using the
severity of injury as a determinative factor in delineating
constitutional violations. See, e.g., Dunn, 79 F.3d at 402-03(“Counsel for Denk correctly concedes that whatever injury
requirement (if any) may remain after Hudson respecting a claim for
excessive force in arrest is satisfied here.”).
25
In view of the foregoing statement, we find it difficult to
understand the dissent’s assertion that
the majority fails to acknowledge clearly that an
officer’s excessive, unreasonable and outrageous use of
deadly force against helpless and innocent bystanders
such as the Petta children violates their Fourteenth
Amendment substantive due process rights; and that,
otherwise, innocent bystanders would be shorn of all
constitutional rights and have less protection under the
constitution and § 1983 tha[n] prisoners, arrestees, and
detainees.
See infra at ___. On the contrary, we explicitly acknowledge that
where a plaintiff’s excessive force claim, whether he be a
29
whether Dunn also affects a Fourteenth Amendment excessive force
claim arising during an attempted but ultimately unsuccessful26
arrest. Under the specific facts of this case, we must answer in
the affirmative; therefore, we find that in January, 1990, the
Petta children did not have a “clearly established” due process
right to be free from excessive force resulting in purely
psychological harm.
Our inquiry here is very narrow. We are not asking whether
the Petta children’s psychological injuries were redressable under
the Fourteenth Amendment in January, 1990. We are merely asking
whether a § 1983 plaintiff at that time had a clearly established
right under the Fourteenth Amendment to be free from purely
emotional harm resulting from an officer’s use of excessive force.
We have already demonstrated (see discussion supra Part III.B.3)
prisoner, arrestee, detainee, or an innocent bystander of tender
years, falls outside the specific protections of the Bill of
Rights, that plaintiff may still seek redress under the due process
clause of the Fourteenth Amendment. See Graham, 490 U.S. at 395
n.1. The Petta children have done so, and nothing we say here
detracts one iota from their constitutional right to do so. The
dissent’s broad assertions, however, beg the question whether the
Petta children’s due process claims fall within the parameters of
our caselaw defining the scope of their constitutional rights.
26
“Unsuccessful” in the sense that the excessive force (i.e.,
shooting at the tires and driving at high speeds) did not result in
the arrest. Petta’s arrest occurred subsequent to the chase and
apparently did not involve excessive force. See Hinojosa, 834 F.2d
at 1229 n.7 (“While Hinojosa was arrested, there was no evidence
that Jones’ pointing of his gun was done to effectuate Hinojosa’s
arrest.”). In any case, Petta does not anywhere allege that
excessive force was used against her or her children when she
finally surrendered at her apartment.
30
that such a right was not clearly established in January, 1990,
under the Fourth Amendment. What we hold here is simply that the
same right was equally “unclear” (for qualified immunity purposes)
under the Fourteenth Amendment. We do so for essentially two
reasons: (1) our cases following Graham v. Connor do not clearly
distinguish between Fourth and Fourteenth Amendment analyses in
this context; we are thus persuaded that Johnson v. Morel and Dunn
v. Denk (see discussion supra Part III.B.3), although admittedly
addressing the Fourth Amendment right, also affected27 the
Fourteenth Amendment right to be free from excessive force; and,
(2) under the particular facts here, we see no principled reason
for drawing an analytical distinction between the Petta children’s
due process claim and an arrestee’s Fourth Amendment claim, given
the substantially similar concerns implicated by the two claims
(e.g., the right to be free from excessive force in an arrest
situation and the need for a police officer to use reasonable force
in effecting arrests).
Prior to Graham, no consistent attempt was made to cabin
excessive force claims under the Fourth, Eighth or Fourteenth
Amendments. Thus, the Shillingford standard was applied to
excessive force cases regardless of which constitutional amendment
27
“Affected,” in the sense that Johnson (as interpreted by
Dunn) interjected into both the Fourteenth and Fourth Amendment
excessive force claims “uncertainty” about whether purely non-
physical injury rose to the level of a constitutional violation.
See infra; see also Dunn, 79 F.3d at 403.
31
was implicated. See, e.g., Brumfield v. Jones, 849 F.2d 152, 156
(5th Cir. 1988)(Fourth Amendment); Lynch, 810 F.2d at 1375 (due
process clause); Jamieson v. Shaw, 772 F.2d 1205, 1210 (5th Cir.
1985)(Fourth Amendment). See also Stevens v. Corbell, 832 F.2d
884, 889 (5th Cir. 1987) (noting similarity of Shillingford
standard to Whitley Eighth Amendment standard). Following the
Supreme Court’s guidance in Graham, see 490 U.S. at 393-95, one
would have expected three distinct lines of excessive force
jurisprudence, i.e., under the Fourth, Eighth and Fourteenth
Amendments. To a certain extent, our post-Graham cases have
distinguished among the respective constitutional amendments in
analyzing excessive force claims. See, e.g., Colston v. Barnhart,
No. 96-40634, 1997 WL 741806, at *3 (5th Cir. Nov. 19, 1997); Spann
v. Rainey, 987 F.2d 1110, 1115-16 & n.8 (5th Cir. 1993); King v.
Chide, 974 F.2d 653, 656-57 (5th Cir. 1992). We can discern,
however, no clear “line” of Fourteenth Amendment excessive force
cases following Graham that would clearly establish a different set
of standards for such claims.
In fact, our review of Fifth Circuit case law following Graham
demonstrates a tendency to “blur” the lines between Fourteenth
Amendment and either Fourth or Eighth Amendment excessive force
standards, depending upon the particular factual context. For
example, we held in Valencia v. Wiggins, 981 F.2d 1440, 1446 (5th
Cir. 1993), that a pretrial detainee’s excessive force claim,
32
although technically grounded in the Fourteenth Amendment, was
properly analyzed under Eighth Amendment standards. In assessing
“what standard of due process” to apply to the plaintiff’s claim
that a jail official had subjected him to excessive force in
quelling a disturbance, we stated:
[W]e are guided by the standard announced in
Whitley and Hudson. While these cases
specifically addressed claims of excessive use
of force brought by convicted prisoners, it is
impractical to draw a line between convicted
prisoners [subject to the Eighth Amendment]
and pretrial detainees [subject to the
Fourteenth Amendment] for the purpose of
maintaining jail security.
Id. at 1445-46 (brackets added). We noted that the Eighth
Amendment standards were useful in this particular Fourteenth
Amendment context because of the similar concerns implicated
“whenever guards use force to keep order.” Id. at 1446, quoting
Hudson, 503 U.S. at 6. See also Jackson v. Culbertson, 984 F.2d
699, 700 (5th Cir. 1993); Bender v. Brumley, 1 F.3d 271, 277-78
(5th Cir. 1993); Nerren v. Livingston Police Department, 86 F.3d
469, 472-73 (5th Cir. 1996)(cases following Valencia and applying
Eighth Amendment standards to excessive force claims of arrestees
and pretrial detainees).
Similarly, we have applied Fourth Amendment standards to
excessive force claims that may have in part implicated the due
process clause. For example, in Mouille v. City of Live Oak, 918
F.2d 548 (5th Cir. 1990), we addressed the excessive force claims
33
of several plaintiffs whom a police officer had allegedly
terrorized when he burst into an office building in search of a
suspect. Id. at 550. Only one of the plaintiffs was arrested;
the others were mere bystanders subjected to the officer’s violent
behavior. Id. We addressed all of the excessive force claims
under the Fourth Amendment, observing that
[t]he Supreme Court has stated that ‘all
claims that law enforcement officers have used
excessive force--deadly or not--in the course
of an arrest, investigatory stop, or other
“seizure” of a free citizen should be analyzed
under the Fourth Amendment....’
Id., quoting Graham, 490 U.S. at 395. We did not consider whether
all of the plaintiffs were “seized” within the meaning of the
Fourth Amendment. It is at least arguable, however, that some of
the plaintiffs in Mouille were not “seized” and that, therefore,
their claims would have been more properly analyzed under the due
process clause. See Brower v. Inyo County, 489 U.S. 593, 596-97
(1989)28; Graham, 490 U.S at 395 n.10. See also Ikerd, 101 F.3d at433 n.6 (applying Fourth Amendment standards to excessive force
28
For example, plaintiff Laurie Rollins was allegedly pushed by
the police officer into a wall as he searched for the suspect
Mouille. Mouille, 918 F.2d at 550. Plaintiff Grace Rollins was
not touched or otherwise targeted by the officer at all; she only
claimed that the officer had “terrified” her by abusing her
daughter. Id. at 554. Arguably, both plaintiffs’ claims did not
implicate the Fourth Amendment because they were not “seized” by
the officer, i.e., the officer did not detain either plaintiff
“through means intentionally applied.” See Brower, 489 U.S. at
596-97. The officer apparently did not intend to arrest or
question either plaintiff.
34
claim where police officer grabbed child’s arm; child’s father, and
not the child herself, was the object of the arrest); Stroik v.
Ponseti, 35 F.3d 155, 156-57 (5th Cir. 1994)(applying Fourth
Amendment to excessive force claim where hostage was shot by police
officer as officer fired at her captor).
It is not our intention, however, to find fault with cases
like Mouille, Ikerd and Stroik. We simply observe that, just as we
have sometimes used the Eighth Amendment to guide our due process
standards in certain excessive force cases, we have likewise used
Fourth Amendment standards in cases that, at least in part,
implicated substantive due process. Such a practice seems to us
driven partly by precedent and partly by policy concerns.
As we have already discussed (see supra Part III.B.1), the
excessive force claim originated in the undifferentiated context of
the due process clause, “quite apart from any ‘specific’ of the
Bill of Rights.” Johnson v. Glick, 481 F.2d 1028, 1032 (2nd Cir.
1973). We had no reason to differentiate among the amendments
until Graham29 in 1989; thus, it comes as little surprise that the
29
A literal application of Graham to all claims of excessive
force used “in the course of an arrest, investigatory stop or other
‘seizure,’” 490 U.S. at 395 (emphasis added), could result in
application of the Fourth Amendment to situations partially covered
by the due process clause. For example, in Hinojosa, (supra Part
III.B.3) the police officer allegedly used excessive force (waving
a gun in the plaintiff’s face) “in the course of” an arrest; we
applied due process standards because the excessive force used was
separate from, and did not result in, the plaintiff’s arrest. See
Hinojosa, 834 F.2d at 1229 n.7. A strict adherence to Graham’s
language, however, would mandate application of the Fourth
35
standards continue to “overlap” somewhat. See, e.g., Nerren, 86
F.3d at 473 n.20 (noting “overlap” of arrestee’s Fourth Amendment
rights with his due process rights); Valencia, 981 F.2d at 1449
n.44 (noting “continued convergence of the various tests under the
Fourth, Eighth and Fourteenth Amendments for maltreatment of
arrestees, detainees or convicted prisoners, respectively.”). Such
an “overlap” is borne out, in our view, by cases such as Harper,
where we held that Hudson v. McMillian’s removal of the
“significant injury” requirement from the Eighth Amendment standard
also affected the Johnson v. Morel Fourth Amendment standard. See
Harper, 21 F.3d at 600; see also Oliver v. Collins, 914 F.2d 56,
59 n.1 (5th Cir. 1990)(pre-Hudson, looking to Johnson v. Morel and
its Fourth Amendment standard “in determining whether a particular
injury is of sufficient magnitude to invoke Eighth Amendment
protection....”).
Underlying policy concerns may also explain the apparent
“overlap.” In cases such as Valencia and its progeny, supra, we
Amendment in Hinojosa. Indeed, it would seem that our decisions in
Mouille, Stroik and Ikerd, supra, adopt that approach. While we
agree that the quoted language from Graham, supra, does support
such a broad application of the Fourth Amendment, we merely observe
here that footnote 10 in Graham could arguably be read to limit
application of Fourth Amendment standards to those situations in
which an officer has “by means of physical force or show of
authority, ... in some way restrained the liberty of a citizen.”
Graham, 490 U.S. at 395 n.10, citing Terry v. Ohio, 392 U.S. 1, 19
n.16 (1968) and Brower, 489 U.S. at 596. We submit that footnote
10 represents a narrower view of the applicability of the Fourth
Amendment than the language quoted in Mouille, supra. See also
Rankin, 5 F.3d at 107 n.3.
36
borrowed Eighth Amendment standards in treating excessive force
claims under the due process clause. We did so because the
concerns vindicated by a convicted prisoner’s excessive force claim
under the Eighth Amendment and those vindicated by a pretrial
detainee’s excessive force claim under the due process clause are
largely the same: the need to guide the proper application of
force in maintaining jail security. See Valencia, 981 F.2d at
1446. We therefore adjudged it “impractical” to adopt different
criteria for pretrial detainees, even though their claims are
brought under the Fourteenth Amendment. Id.The same reasoning applies to the Petta children’s claims. We
find it impractical and illogical to draw a line between their due
process claims and those of an arrestee who claims, under the
Fourth Amendment, that a police officer has used excessive force in
effecting his arrest. Whether Officer Rivera’s use of force was
“objectively reasonable” largely implicates Fourth Amendment
concerns,30 even though the fortuity of his bullet going astray
removed this case from the purview of “seizure” cases. See Brower,
489 U.S. at 596-97.
This could well mean that the present constitutional standards
30
For example, were we to weigh the reasonableness of Rivera’s
shooting at Petta’s car and engaging her in a high speed chase, we
would be interested, inter alia, in the severity of Petta’s crime,
in whether her flight “pose[d] an immediate threat to the safety of
the officers or others,” and whether Petta was “actively resisting
arrest or attempting to evade arrest by flight.” See Graham, 490
U.S. at 396, citing Tennessee v. Garner, 471 U.S. at 8-9.
37
for the Petta children’s claims are governed by the Fourth
Amendment “reasonableness” standard of Tennessee v. Garner (see
supra notes 14 & 29). But, as we have observed above (supra Part
III.A.1), we need not decide that question today. We simply
observe that our precedents, such as Johnson v. Morel, supra, and
Dunn v. Denk, supra, interjected as much uncertainty into our
Fourteenth Amendment jurisprudence as into our Fourth Amendment
jurisprudence, regarding whether a purely non-physical injury rose
to the level of a constitutional violation.31
31
We do not quarrel with the dissent’s assertion that the Petta
children need not “point to a precisely and explicitly analogous
case that existed prior to an officer’s violation of the
plaintiff’s constitutional rights” in order to defeat Officer
Rivera’s claim of qualified immunity. See infra at ___; see also
discussion supra Part II, citing Anderson, 483 U.S. at 640. Again,
however, that statement merely begs the question whether Officer
Rivera’s actions violated constitutional rights “clearly
established” at the time of those actions. The dissent fails to
consider that our precedent was not only unclear about the
parameters of a Fourteenth Amendment excessive force claim, but
that it also failed to clearly distinguish between Fourth and
Fourteenth Amendment standards for such claims. See discussion
supra Parts III.B.3 & III.B.4.
More importantly, however, the dissent disregards the effect
on the plaintiffs’ due process rights of our en banc decisions in
Johnson v. Morel, supra, and Dunn v. Denk, supra, merely finding
the reasoning in those cases “inapposite” because they were decided
under the Fourth Amendment. See infra at ___. Our discussion in
Part III.B.4 demonstrates that the excessive force claim did not
originate, nor does it presently exist, in neat, hermetically-
sealed categories according to which constitutional amendment the
claim implicates. Instead, cases arising under one amendment have
consistently affected the parameters of rights that, while arising
under different constitutional amendments, implicate similar policy
concerns. See Part III.B.4; see also Harper, 21 F.3d at 600;
Valencia, 981 F.2d at 1445-46. The dissent does not consider that
phenomenon and thus fails to appreciate both the practical and
theoretical underpinnings of our excessive force jurisprudence.
38
We have observed before that the qualified immunity analysis
partakes of a somewhat “schizophrenic” nature. See Rankin, 5 F.3d
at 109. This case aptly demonstrates that phenomenon. In
assessing Officer Rivera’s defense of qualified immunity, we must
assess the law as it stood some eight years ago, even when our case
law may have now moved on. We must therefore hold that in January,
1990, the Petta children had no “clearly established”
constitutional right under the due process clause to be free from
a police officer’s use of excessive force where the only injuries
allegedly suffered were psychological. We therefore find that the
district court erred in denying Officer Rivera’s motion for summary
judgment based on the defense of qualified immunity.
IV.
For the foregoing reasons, we REVERSE the judgment of the
district court and RENDER judgment, granting Officer Rivera’s
motion for summary judgment based on the defense of qualified
immunity.
REVERSED AND RENDERED
39