James JOHNSON, Jr., Plaintiff-Appellant, v. D. MORAL, et al., Defendant-Appellee.
No. 86-3662.
United States Court of Appeals, Fifth Circuit.
May 2, 1988.
Order Granting Rehearing En Banc May 23, 1988.
846 F.2d 846
GEE, Circuit Judge:
The issue in today‘s case is whether the Constitution is violated by a malicious and gratuitous applicаtion of unnecessary force by a state officer, or whether the victim must be content with a common-law tort action, where the physical injuries inflicted аre trifling ones.
The facts of the case, as alleged by the complainant and as assumed by the trial court for summary judgment purposes, were:
Plaintiff Johnson was driving оn the Greater New Orleans Bridge when his car stalled. Another motorist pushed Johnson‘s car for some distance until the defendant, Officer David Moral, in a Mississippi River Bridgе Police patrol car, waived the motorist off and pushed plaintiff‘s car to the end of the bridge. While doing so, Moral cursed and made derogatory raсial remarks to the plaintiff over his car loudspeaker. At the end of the bridge, Moral asked Johnson for his driver‘s license and car registration; and when plaintiff could not produce them, Moral arrested him.1 During the arrest, Johnson was calm and did not resist Moral. Moral, however, was aggressive and hostile, insulting the plaintiff, forcing him to “spread eagle” against the car, and searching him roughly. In addition, he handcuffed the plaintiff too tightly and his jerking on the handcuffs caused them to cut Johnson‘s wrists. Although thеse cuts were not severe and Mr. Johnson sought no medical attention for them, they did bleed and leave a permanent scar. Johnson filed suit on various civil rights theories and on state tort grounds.
The district court granted summary judgment for the defendant policeman in explicit reliance on authorities from our Court—authorities which quite clearly specify “severe injury” as a necessary ele
Among these are United States v. Bigham, 812 F.2d 943 (5th Cir.1987) and Tubwell v. Moody, 816 F.2d 675 (5th Cir.1987). Speaking of these cases, our late Brother Hill, in an earlier proposed opinion in this case, accurately stated “[c]ases such as Bigham and Tubwell represent a shift in our approach in analyzing cases under Shillingford: while the former cases require an objectively severe injury regardless of the force justified, the latter cases explicitly relax the injury requirement whеn there is no justification to use force.” Thus, as Judge Hill‘s proposed opinion recognized, the later opinions in Bigham and Tubwell seek to overrule Shillingford‘s requirement that, regardless of other factors, an objectively severe physical injury is a necessary element of a
No rule is more firmly settled in our Circuit than that “no panel ... can overrule a decision previously made by another.” Ryals v. Estelle, 661 F.2d 904, 906 (5th Cir.1981). A necessary corrollary of that rule, and one equally as firmly established, is that should a later panel render a decision conflicting with that of аn earlier one, it is the earlier decision which is to be followed and not the later. The corrollary rests on the obvious premise that, since the later рanel decision should have followed that of the first panel, the third panel coming to examine the Circuit‘s precedent on the point is bound by the decisiоn of the first panel—just as, indeed, was the second panel. Id. Overruling precedent is a power reserved exclusively for the Court as a whole, sitting en banc.
We therefore follow the earlier rule of Shillingford3 аnd call upon the Court en banc to resolve the conflict in our Circuit‘s decisions.
AFFIRMED.
THORNBERRY, Circuit Judge, dissenting.
I agree strongly with the majority that the issue in this case should be decided by the court en banc. I also agree with the majority that we are bound to follow Shillingford v. Holmes, 634 F.2d 263 (5th Cir. Unit A 1981) as our court‘s first pronouncement on the elements of
Shillingford does say that “we must inquire into the amount of force used in relationship to the need presented, the extent of the injury inflicted and the mo
The Shillingford panel, therefore, did not impose an absolute requirement of a severe injury. Indeed, it implicitly found in that case that there was no severe injury: “That the results of the attack on Shillingford‘s person were not crippling was merely fortuitous. The same blow might have caused blindness or other permanent injury.” Id. at 266 (emphasis added). Rather, that panel appears to have taken a more generalized loоk at all of the circumstances of the case in its holding that a Section 1983 cause of action existed. Perhaps the panel was examining only whether thе circumstances amounted to an abuse of official power that “shocks the conscience.” See id. at 265.
The more general test examines all the circumstances to determine whether the action rises above a standard tort. Naturally, the elements listed in Shillingford will commonly appear in valid Section 1983 claims, and they should be considered at trial. But, they are not exclusive or mandatory. This general circumstances test is more flexible than the rigid requirements and reаches the abuses of official power at which Section 1983 was aimed. Therefore, I would reverse the district court‘s dismissal of Johnson‘s action and remand tо that court for it to consider whether Officer Moral‘s actions “shock the conscience.”
ON SUGGESTION FOR REHEARING EN BANC
Before CLARK, Chief Judge, GEE, RUBIN, REAVLEY, POLITZ, KING, JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, and SMITH, Circuit Judges.
BY THE COURT:
A member of the Court in active sеrvice having requested a poll on the suggestion for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc,
IT IS ORDERED that this cause shall be reheard by the Court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.