Jones v. BuchananJones v. Buchanan
DIANA GRIBBON MOTZ, Circuit Judge:
This appeal arises out of an incident in which a North Carolina deputy sheriff knocked Edward Arthur Jones to the floor in the sheriff‘s office and then jumped on him, crushing Jones‘s nose, lacerating his lips and nose, and bruising his ribs. Prior to the deputy‘s use of force, Jones, although drunk and yelling obscenities, was unarmed and in a secured room; moreover, Jones maintains that his wrists were handcuffed behind him. It is undisputed that, at the time the deputy initiated force, Jones was not under arrest or suspected of any crime; rather, he had voluntarily come to the sheriff‘s office seeking assistance.
After Jones filed this action, alleging that the deputy‘s conduct constituted excessive force, in violation of Jones‘s constitutional rights and state law, a magistrate judge granted summary judgment to the deputy. The judge held, as a matter of law, that the deputy did not subject Jones to excessive force. For the reasons stated within, we reverse.
I.
We set forth the facts “in the light most favorable to the party asserting the injury,” in this case, Jones. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); Brown v. Gilmore, 278 F.3d 362, 369 (4th Cir.2002) (“[W]e are required to consider whether the facts, taken in the light most favorable [to the injured party], show that [the officer‘s] conduct violated a constitutional right.“).
On the morning of November 3, 1999, Jones began drinking Canadian Mist whiskey, and he continued doing so throughout the day. At around 4:30 in the afternoon, Jones remembered that he “had to go to court the next day,” and he concluded that his “best bet” was “to call somebody to come get [him] so [he] could sober up.” He determined that he would “just to go to jail and sleep it off.” Afraid that he would be held in contempt or lose his job if not sober, he wanted law enforcement authorities “to verify that [he] hadn‘t had anything else to drink.”
Jones called 911 and told the operator that he was “drunk” and would like “for an officer to come get [him] and take [him] to jail so [he could] get sober.” Jones waited at his home for about 30 to 45 minutes. When the police failed to arrive, he walked to the home of a neighbor, Lake Ollis, to “get [Ollis] to take [him] to jail.” While Jones waited for Ollis‘s son to get dressed, Avery County Sheriff Richard Buchanan and Detective Pamela James arrived. Sheriff Buchanan testified that, after Jones threatened to kill himself unless the officers took him to jail, the Sheriff decided “that there was a possibility of suicide” and so that it was appropriate to transport Jones to the sheriff‘s department. Before leaving, Detective James asked Jones if he had any weapons. Jones responded that he had a pocket knife. Detective James removed the knife from Jones‘s pocket along with a can of beer from another pocket.
Sheriff Buchanan and Jones both testified that Jones then agreed to be handcuffed. The Sheriff testified that this was in keeping with “standing” department policy for transporting persons to the sheriff‘s department. Notwithstanding the handcuffs, Jones related that the Sheriff and Detective James were “nice” to him and that he, in turn, was polite, answering “yes, sir” and “yes, ma‘am” to their questions. Ollis‘s son also remembered that, even though handcuffed, Jones responded to the officers’ questions with “[y]es, sir” and “no, sir.”
Jones related that while handcuffed in the police car on the way to the department, “the only thing [he] want[ed] to do [was] lay down and go to sleep.” About a mile into the ride, Jones believes that he passed out. Sheriff Buchanan recalls that Jones was not a “problem” during the ride. Upon arriving at the sheriff‘s department, one officer told Jones to “[g]et out of the car.” Another “grabbed” Jones, who was still handcuffed behind his back, by the “center part of the handcuffs” and “got [him] out of the car ... because [he] was leaned over in the back seat ... with [his] head laying down on the seat.” An officer then “jerked” Jones out of the car and “grabbed [him] by the shoulders and took [him] in the jail.”
Inside the sheriff‘s department, while in the processing room, the officers “slammed [Jones] down in the chair with [his] hands behind [his] back.” He “was drunk and got to cussing” because the officers hurt him when they got him out of the car “by [his] handcuffs.” As soon as Jones was settled in the processing room, Officer Eddie Hughes testified that he locked the “exit doors” of the room, locking Jones inside.
Meanwhile, Deputy Lee Keller was meeting in an adjacent area with three local college students who needed fingerprinting for childcare work. Deputy Keller testified that he had to take the students by Jones in the processing room to reach the fingerprinting machine, and he did not want to take the students by Jones until Jones “was going to be quiet and settle down or we got him put in a holding cell or whatever.”
When Jones asked the officers to “unhandcuff [him]” because he “was smothering,” Deputy Keller called to him to quiet down. According to Jones, an officer “told [him] to shut the f___k up.” Jones admits that he, too, used “pretty foul language[,]” but he maintains that he did not push, kick, or even threaten any of the officers. When the handcuffs were not removed, Jones “started to get mad” and then began to stand up “just a little bit,” in an effort to alleviate his breathing difficulties by attempting to move his handcuffed hands to the front of his body by taking his hands around his back and under his feet.
As Jones started to stand up, “the next thing” he knew, an officer “knocked [him] down on the floor and jumped on [him].” Jones “felt a big knee ... in the back of [his] neck and one in [his] ribs.” When he hit the floor, he felt the knee in his back and across his neck. Jones immediately knew that he had been hurt; he felt his nose go “whaa” and saw a “puddle of blood.” Although Jones could not identify the officer who hurt him, Deputy Keller admits that he injured Jones.1 Deputy Keller himself suffered no injuries from the incident, except a scratch on his hand.
After Jailer Blackburn called for emergency medical services, an ambulance took Jones to the hospital. Dr. Michael Tomlinson diagnosed Jones with a “depressed comminuted fracture of the nasal bones,” which is a fracture in which “the bone is splintered or crushed into numerous pieces,”2 a 1.5 “centimeter laceration over the bridge of his nose,” a 1.5 “centimeter laceration of the upper lip mucosal surface, which was gaping somewhat,” and bruised ribs. Jones also had a blood alcohol level of .42. Ten sutures were needed to repair Jones‘s lip and nasal lacerations, and Jones then had surgery to repair his “severe,” “significant[ly] displac[ed]” nasal fracture.
Sheriff Buchanan testified that immediately after the incident, Deputy Keller “made it clear” that he “had hit” Jones “with his fist.” Deputy Keller “came through shaking his hand” and told Sheriff Buchanan that Jones has “‘got a tough mouth.‘” According to the Sheriff, Deputy Keller “was acting like he was proud of” hitting Jones with his fist. (At oral argument, Deputy Keller‘s counsel conceded that it would constitute excessive force, under the circumstances of this case, for Deputy Keller to have hit Jones with his fist.) Deputy Keller also “bragged” about the incident to the Sheriff‘s son. Officer Hughes testified that Keller commented “that ‘[his] knee accidentally hit [Jones‘s] nose.‘” What happened to Jones so bothered Officer Hughes that he left work early on the day of the incident and apologized to Jones‘s neighbor.
When Jones‘s common-law wife, Rebecca Weedman, arrived at the department shortly after the incident, police officers gave her conflicting stories as to how Jones was injured. Deputy Chris Buchanan told her that Jones “fell.” Officer Hughes told Weedman that Jones and a few of the officers “scuffled in the floor.” An unidentified female officer explained to her that Jones had “passed out in the chair and fell out of the chair.” Sheriff Buchanan told her that “‘we went to put Eddie in the holding cell, and he hit his nose on the bars.‘” Sheriff Buchanan testified at his deposition, however, that it was his “understanding” that Deputy Keller had “hit” Jones “in the face.”
The sheriff‘s department did not immediately charge Jones with any crime arising from his conduct during this incident. After Sheriff Buchanan was informed of this lawsuit, however, he asked Deputy Keller to charge Jones. Deputy Keller testified that he refused to do so because he had “never had any intent to charge” Jones with anything and to do so “would look like we were being revengeful or something.” Sheriff Buchanan then asked Officer Hughes and another officer to charge Jones. They did, but the charges “were later either dismissed or [Jones] was found not guilty.”
On February 11, 2000, Jones filed this suit, alleging that Deputy Keller and Officer Hughes had subjected him to excessive force in violation of his constitutional rights and state law. Jones also asserted that Avery County and Sheriff Buchanan established and maintained a policy of encouraging the use of excessive force and failed to provide law enforcement officers with adequate training and supervision as to the proper use of force. In support of the latter assertions, Jones offered evidence that less than six months after the incident, the State of North Carolina removed Sheriff Buchanan from office and ultimately a federal court convicted him of felony offenses, including a civil rights violation. See Harmon v. Buchanan, 164 F.Supp.2d 649, 657 (W.D.N.C.2001) (finding in companion case, that Sheriff Buchanan made “statements to his deputies authorizing the use of what can best be described as excessive force“); see also Tammy Jones, Buchanan Gets Prison Sentence, Asheville Citizen-Times, Nov. 1, 2002, available at 2002 WL 23491632 (reporting on Sheriff Buchanan‘s sentence in connection with a March 2001 conviction for “slamm[ing] a handcuffed suspect‘s head against a patrol car,” causing the man to lose three front teeth).
Although the defendants asserted qualified immunity as an affirmative defense, the magistrate judge did not explicitly discuss their entitlement to qualified immunity; rather the judge simply ruled, as a matter of law, that Deputy Keller‘s actions were reasonable, and thus did not constitute excessive force. The magistrate judge recognized that governing legal principles required him to view, in the best light for Jones, the facts and all reasonable inferences that could be drawn from them, “however improbable they may seem.” Jones, 164 F.Supp.2d at 736 (internal quotation marks omitted). Nevertheless, the judge failed to credit Jones‘s evidence that he posed no threat to anyone at the time Deputy Keller broke his nose and inflicted the other injuries; indeed, the judge appears to have totally disregarded Jones‘s evidence that he was handcuffed at that time.3
II.
In excessive force cases, entitlement to qualified immunity must be analyzed in two steps, which are to be “considered in proper sequence.” Saucier, 533 U.S. at 200. The “threshold question” requires a court to resolve the issue that forms the basis of the magistrate judge‘s decision here — whether, “[t]aken in the light most favorable to the party asserting the injury, ... the facts alleged show [that] the officer‘s conduct violated a constitutional right.” Id. at 201. “If no constitutional right would have been violated,” even when the facts are viewed in the best light for the injured plaintiff, the analysis ends; the plaintiff cannot prevail. Id.
However, if, taking the allegations or evidence (depending on the procedural posture of the case) in the best light for the plaintiff, the plaintiff has stated a violation of a constitutional right, we proceed to the second step. “[T]he next, sequential step is to ask whether the right was clearly established” at the time of the events at issue. Id. If not, the qualified immunity doctrine still provides a defendant officer with immunity from suit. If so, summary judgment must be denied.
Therefore, in order for Jones to defeat the defendants’ motion for summary judgment, (1) he must have stated the violation of a constitutional right, and (2) that right must have been clearly established at the time he suffered his injuries, November 3, 1999.
A.
We turn first to the “threshold” question: whether, “[t]aken in the light most favorable to the party asserting the injury,” the facts show that Deputy Keller‘s “conduct violated a constitutional right.” Saucier, 533 U.S. at 201. Jones argues that the facts, considered in the light most favorable to him, demonstrate that Deputy Keller violated his Fourth Amendment rights. Deputy Keller recognizes that the Fourth Amendment constitutes the specific basis for the right allegedly infringed here — that is, the Fourth Amendment right to be free from unreasonable seizures. See Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The deputy maintains, however, that his conduct constituted no violation of Jones‘s Fourth Amendment rights.
The Fourth Amendment prohibition on unreasonable seizures bars police officers from using excessive force to seize a free citizen. See Graham, 490 U.S. at 395; see also id. at 395 n. 10 (“A ‘seizure’ triggering the Fourth Amendment‘s protections occurs only when government actors have, by means of physical force or show of authority, ... in some way restrained the liberty of a citizen.” (internal quotation marks omitted)). A court determines whether an officer has used excessive force to effect a seizure based on a standard of “objective reasonableness.” Id. at 399. We consider the facts “from the perspective of a reasonable officer on the scene,” and avoid judging the officer‘s conduct with the “20/20 vision of hindsight,” recognizing that “police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving.” Graham, 490 U.S. at 396-97. We do not consider the officer‘s “intent or motivation.” Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir.1996) (citing Graham, 490 U.S. at 396-97). Rather, “the question is whether a reasonable officer in the same circumstances would have concluded that a threat existed justifying the particular use of force.” Id. (citing Graham, 490 U.S. at 396-97).
Those facts and circumstances include “the severity of the crime at issue,” whether the “suspect poses an immediate threat to the safety of the officers or others,” and whether the suspect “is actively resisting arrest or attempting to evade arrest by flight.” Id. The extent of the plaintiff‘s injury is also a relevant consideration. See Rowland v. Perry, 41 F.3d 167, 174 (4th Cir. 1994); Pressly v. Gregory, 831 F.2d 514, 517 (4th Cir.1987). The “question [is] whether the totality of the circumstances justified a particular sort of ... seizure.” Tennessee v. Garner, 471 U.S. 1, 8-9, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985); see also Rowland, 41 F.3d at 173 (stating that courts must avoid making “[a]rtificial divisions in the sequence of events” and should instead view the evidence “in full context, with an eye toward the proportionality of the force in light of all the circumstances“).
Deputy Keller contends that, given Jones‘s conduct, “a reasonable officer on the scene,” could have perceived that Jones posed an “immediate threat to the safety” of the deputy or others, justifying the force applied, i.e., knocking Jones to the floor, jumping on him, and breaking his nose. See Graham, 490 U.S. at 396. Jones maintains that, viewing the facts and all fair inferences from them in the light most favorable to him, this conclusion is simply not possible and, therefore, Deputy Keller violated his Fourth Amendment right to be secure against the use of excessive force.
To resolve this question of whether the necessity for force outweighed Jones‘s constitutional rights, we examine each of the Graham factors in turn. First, we consider the “severity of the crime at issue.” Graham, 490 U.S. at 396. Here, there was no crime at issue; Jones voluntarily went to the station for assistance in recovering from excessive alcohol consumption. In recent years, we have twice confronted situations in which a plaintiff, subjected to police force, had committed no crime; in each we held that the plaintiff had stated a claim for violation of his constitutional right to be free from excessive police force. See Clem v. Corbeau, 284 F.3d 543, 545-47 (4th Cir.2002); Park v. Shiflett, 250 F.3d 843, 848, 853 (4th Cir.2001). Even in a case in which the plaintiff had committed a crime, when the “offense was a minor one,” we have found that the first Graham factor weighed in plaintiff‘s favor and upheld the denial of summary judgment to the defendant police officer. See Rowland, 41 F.3d at 174; see also Lee v. Ferraro, 284 F.3d 1188, 1198 (11th Cir.2002) (holding that this factor “strongly weigh[ed] in favor” of plaintiff because officer used force even though plaintiff had committed “insignificant crime“). Accordingly, in this case, in which Jones committed no crime, this first factor clearly weighs in his favor.4
In addition to the severity of the injuries Deputy Keller inflicted on Jones, Sheriff Buchanan‘s testimony that Deputy Keller “made it clear” that he had hit Jones “with his fist,” provides some evidentiary support for Jones‘s contention that the level of force was excessive6
The dissent seeks to distinguish some (but, by no means all) of the cases on which we rely, contending that they deal with persons “who, in contrast to Jones, were not acting dangerously or aggressively” at the time the police used force. Post at 540 n.3. The asserted distinction utterly fails because if we take the facts in the best light for Jones, as we must at this juncture, Jones too was ”not acting dangerously or aggressively.” Indeed, prior to Deputy Keller knocking Jones to the floor and breaking his nose, Jones, although drunk and using foul language, was unarmed, handcuffed, alone in a secured room in a police station, and neither under arrest nor suspected of any crime; thus, he was “acting” a great deal less “dangerously and aggressively” than the plaintiffs in other cases in which courts have upheld excessive force claims. See, e.g., Smith, 127 F.3d at 1418-19 (prior to challenged police force, plaintiff had threatened officer with baseball bat and resisted arrest); Mayard, 105 F.3d at 1227-28 (prior to challenged police force, plaintiff kicked and hit officer and resisted arrest); Kane, 987 F.2d at 1007 (prior to challenged police force, plaintiff resisted arrest and attempted to flee).7
The dissent contends that Robles v. Prince George‘s County, Maryland, 302 F.3d 262 (4th Cir. 2002), cert. denied, ___ U.S. ___, 123 S. Ct. 1634, 155 L. Ed. 2d 486 (2003), compels the conclusion that “Deputy Keller is entitled to qualified immunity.” Post at 535-536. Given that Robles involved not only very different facts but also a wholly different Constitutional provision, the dissent‘s heavy reliance on, and extended discussion of, Robles is as puzzling as it is unpersuasive. In Robles, Prince George‘s County police officers validly arrested Nelson Robles for an offense committed in a neighboring county and asked officers in that county to pick him up; when they refused to do so, the Prince George‘s County officers tied Robles to a metal pole at night and then anonymously reported his location to officers in the neighboring county, who picked him up 10 minutes later. Under circuit precedent, in order to establish a constitutional violation, Robles, as a validly arrested pretrial detainee, had to meet a far more rigorous standard than that at issue here. Rather than simply proving that the police acted unreasonably in violation of the Fourth Amendment, Robles had to prove that the police had violated the Due Process Clause, i.e., their misconduct amounted to punishment and resulted in more than de minimis injury to him. Id. at 269. This is a difficult burden for any plaintiff, but particularly so for Robles since he conceded that no one bothered him during the 10-minute ordeal, admitted that he suffered no physical injury, and offered no objective evidence (e.g. lost wages or medical testimony) to support his claim of psychological injury. Robles v. Prince George‘s County, Maryland, 308 F.3d 437 (4th Cir. 2002) (Wilkinson, J., concurring in the denial of rehearing en banc). Nevertheless, this court held that Robles had established a constitutional violation but, given the lack of any prior cases factually close to Robles’ and the closeness of the question of whether he suffered more than de minimis injury, it also held that it could not conclude that “clearly established law” gave the officers “fair warning” that their conduct violated not just state law but also the Constitution. See Robles, 302 F.3d at 270-71. Even if one does not agree with this unanimous decision upholding the grant of qualified immunity to the officers or the full court‘s decision (10-1) denying rehearing en banc, Robles does not control the case at hand. Unlike the thankfully unusual conduct in Robles, the present case concerns a garden variety excessive force claim under the Fourth Amendment. While no prior case law involved conduct like that in Robles, countless courts, as noted above, have previously held that the conduct alleged here is unconstitutional. If Jones can prove these allegations, this prior case law certainly provided Deputy Keller (unlike the officers in Robles) with “fair warning” that such conduct violated the Constitution; in such circumstances, an officer is not entitled to qualified immunity. See Hope, 122 S. Ct. at 2515-16.8
On appeal, Jones acknowledges that his “claim is primarily one for excessive force under § 1983” and that his state claims are coextensive with his federal claim. Brief of Appellant at 19 n.2; Reply Brief at 16. Therefore, as in Rowland, 41 F.3d at 174, we reinstate any “parallel” state law claims. Furthermore, given our holding that summary judgment in favor of Deputy Keller was inappropriate, we reinstate the derivative claim against Sheriff Buchanan in order to allow the magistrate judge to address it in the first instance at the appropriate time.9
LUTTIG, Circuit Judge, dissenting:
It follows a fortiori from our holding in Robles v. Prince George‘s County, Maryland, 302 F.3d 262 (4th Cir. 2002), that Deputy Keller is entitled to qualified immunity in this case. Because the majority fails to follow our precedent in Robles, and because that decision dictates that Deputy Keller is protected by the doctrine of qualified immunity, I dissent.
The police conduct at issue in Robles was, under law, entirely indefensible. Prince George‘s County police officers arrested Nelson Robles on an outstanding traffic warrant issued by neighboring Montgomery County. They drove Robles to a deserted shopping center, and, at three in the morning, tied him to a metal pole with flex-cuffs and left him. The court in Robles held that the officers had committed a Fourteenth Amendment violation under Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979), as the officers’ actions “served no conceivable law enforcement purpose” and caused more than de minimis injury. Robles, 302 F.3d at 270. Indeed, the officers did not even argue that their actions had a legitimate law enforcement purpose. Id. at 269. Nevertheless, the panel awarded the officers qualified immunity on the ground that a reasonable police officer would not have known that handcuffing a person to a pole in a deserted parking lot at three in the morning and abandoning him there, all admittedly for no law enforcement purpose, was unconstitutional.
The court in Robles analyzed the plaintiff‘s claim under the Fourteenth Amendment‘s Due Process Clause and Jones’ claim is pressed under the Fourth Amendment (as incorporated by the Fourteenth), but, at their core, both cases present the same essential claim that a police officer unnecessarily injured a detainee. There is at least one critical difference between this case and Robles, however. In Robles, the police officers offered no law enforcement justification for their actions, whereas here, Deputy Keller offers, and in fact had, a manifestly legitimate law enforcement need to restrain Jones.
The majority dismisses the necessity of Keller‘s actions, but that necessity is obvious, even to one who reads the majority‘s opinion. The majority states that Jones “never pushed, kicked, or threatened anyone,” ante at 530, and that “if Jones was handcuffed behind his back in a locked room, we find it hard to see how he would pose an immediate threat to anyone.” Ante at 529. These statements are premised upon at least two erroneous assumptions. First, the majority assumes that Jones’ presence in a locked room somehow obviated the need to gain control of him. But the room in which Jones was locked was the booking room, a central artery of the police department. The police could hardly be expected to remain outside the booking room until Jones quieted down on his own. Indeed, as Deputy Keller testified, he was fingerprinting college students for volunteer work and he needed to walk the students past Jones in order to get to the fingerprinting machine. Thus, Deputy Keller needed to enter the booking room with the students.
Second, and frankly quite troubling, the majority appears to believe that a handcuffed person, evidently even one who is in the process of moving his cuffed hands to the front of his body, poses “no threat to the officer or others.” Ante at 534. If the majority does so believe, then such a belief is naive. One does not need experience to know differently, but there is an abundance of painful experience confirming that a handcuffed person, especially one who has his hands in front of him, can still be very dangerous. See, e.g., United States Department of Justice, Law Enforcement Officers Killed and Assaulted 49, 50 (2001) (describing instances in which law enforcement officers were killed by persons wearing handcuffs); United States v. Sanders, 994 F.2d 200, 209 (5th Cir. 1993) (“Sander‘s argument is entirely dependent on the assumption that, by handcuffing a suspect, the police instantly and completely eliminate all risks that the suspect will flee or do them harm. As is sadly borne out in the statistics for police officers killed and assaulted in the line of duty each year, however, this assumption has no basis in fact.“).
To be sure, whether Jones had a weapon is relevant to his dangerousness, but the fact that Jones did not have a weapon certainly does not, as the majority supposes, render him harmless. Indeed, it took four officers to finally subdue the handcuffed Jones. Despite the majority‘s contrary conclusion, there cannot be a serious dispute over whether the belligerent, uncooperative Jones presented a threat both to the personnel and civilians in the police department. Deputy Keller‘s take-down, while it had the unfortunate, and unforseen, consequence of injuring Jones, was undeniably an attempt to remove that threat. For that very reason, Deputy Keller presents a stronger case for qualified immunity than did the officers in Robles.1
Because the majority cannot distinguish Robles, it engages in a revisionist reading of that opinion. The majority characterizes Robles as a close, and accordingly uncertain, case with respect to the de minimis injury prong of Bell v. Wolfish. Ante at 535 n. 8. Citing not to the opinion in Robles, but, rather, to Judge Wilkinson‘s opinion concurring in the denial of rehearing en banc, id. (citing Robles v. Prince George‘s County, Maryland, 308 F.3d 437 (4th Cir. 2002) (Wilkinson, J., concurring in the denial of rehearing en banc)), the majority attempts to minimize Robles’ injuries, reciting that “he conceded that no one bothered him during the 10-minute ordeal, admitted that he suffered no physical injury, and offered no objective evidence (e.g. lost wages or medical testimony) to support his claim of psychological injury.” The majority then states that it was the closeness of the case with respect to the de minimis injury prong of Bell v. Wolfish, coupled with the lack of factually similar cases that combined to require the grant of qualified immunity in Robles. Id. In other words, according to the majority, the qualified immunity analysis in Robles turned in large part upon the “closeness of the question” as to the seriousness of the injury sustained by the plaintiff.
However, the panel in Robles, of which Judge Motz was a member, said nothing at all to the effect that its decision to grant qualified immunity was dependent upon the closeness of the question as to injury. Nothing in the brief portion of the opinion devoted to the qualified immunity analysis suggests that the extent of injury was even considered in resolution of the qualified immunity issue; indeed the level of harm, which today is so central to the majority‘s interpretation of Robles, is not even mentioned in the qualified immunity analysis undertaken by the Robles panel. See Robles, 302 F.3d at 270-71.
The Robles opinion does discuss the extent of injury when it addresses whether Robles satisfied the de minimis injury prong of the Bell v. Wolfish test. That discussion, however, belies the majority‘s interpretation today, for it states only, without so much as a hint that the issue was close, that the “injury was more than de minimis.” Id. at 270.2
Thus, the only support for the majority‘s reading of Robles is Judge Wilkinson‘s opinion concurring in the denial of rehearing en banc of Robles.
In recent years, it has become more common on our circuit to attempt to add to, subtract from, or recharacterize the facts recited and relied upon in a challenged panel opinion, or even to fine-tune, if not fundamentally reshape, the legal analysis undertaken by the original panel, in the course of opinions respecting the denial of rehearing en banc. Compare Robles v. Prince George‘s County, Maryland, 302 F.3d 262 (4th Cir. 2002), with Robles v. Prince George‘s County, Maryland, 308 F.3d 437 (4th Cir. 2002) (opinion concurring in the denial of rehearing en banc); compare Harvey v. Horan, 278 F.3d 370 (4th Cir. 2002), with Harvey v. Horan, 285 F.3d 298 (4th Cir. 2002) (opinion concurring in the denial of rehearing en banc); compare Johnson v. Collins Entertainment Co., Inc., 199 F.3d 710 (4th Cir. 1999), with Johnson v. Collins Entertainment Co., Inc., 204 F.3d 573 (4th Cir. 2000) (opinion concurring in the denial of rehearing en banc); see also Belk v. Charlotte-Mecklenburg Bd. of Educ., 211 F.3d 853 (4th Cir. 2000) (opinion concurring in the denial of rehearing en banc). These opinions respecting the denial of rehearing en banc are cloaked as mere recitations of the facts and reasoning of the panel opinions, not as revisions of those opinions. But it is evident from a comparison of these opinions with the original panel opinions that the former actually are attempted revisions of the latter. In fact, not infrequently, the fullness, depth, and length of the subsequent writing confirms that it is nothing short of a rewriting of the panel opinion from scratch in response to arguments and authorities that were not considered or addressed by the panel.
These attempts at revision of binding panel opinions typically follow upon the identification of errors in the panel‘s factual recitation or flaws in the panel‘s legal analysis by other members of the court who, by their own written opinions, have drawn the panel opinion into question. That such attempts at revision prove irresistible on occasion is understandable; upon revelation of errors or oversights in either fact or law, there is a quite natural instinct to correct the error or oversight in anticipation of further review of the original decision by the en banc court or Supreme Court or in an effort to forestall altogether any further review. But because these kinds of revisionist writings cannot be and are not the binding authority of the circuit, they ultimately disserve the court and the public, in addition to justifiably confusing the bar and the bench as to the law of the circuit.
It is our solemn obligation in opinions not only to come to the correct conclusions under law, but to support those conclusions with full reasoning that incorporates and honestly addresses the relevant facts and precedents. I have long believed that the federal courts too often fall short in the discharge of this most important of our obligations. But be that as it may, the formal release of an opinion of law on behalf of the court is the final step in the court‘s deliberative process, not the first or merely another along the way toward the final decision. Identically as issued by the responsible panel, the panel decision is the binding law of the circuit.
Of course, we in the judiciary can make mistakes just like anyone else. We can fail to include relevant facts or even misstate facts. We can overlook authorities or misread them. From time to time, we can even misanalyze a case completely. But our obligation when we do err in these regards is to admit our errors forthrightly and correct them in opinions that are, themselves, binding. We owe nothing less to the parties and the public whom we serve. Indeed, the public respect that the judiciary enjoys is attributable in no small part to our institutional insistence upon the open and formal admission and correction of our misstatements and omissions. We can scarcely criticize others for misstatements, omissions and analytical errors if we turn a blind eye toward, rather than admit, our own.
The developed process for addressing the judicial error is the grant of rehearing (or of rehearing en banc) and the official correction of the error. Thus, if a convincing argument is made by a colleague in opposition to the denial of rehearing en banc (or by a party in a petition for rehearing en banc) that the panel has erred in the material facts predicate for its disposition or in its analysis of the law, rehearing by the panel — on the submissions if more is unnecessary — is available to address the argument squarely in a revised, but binding, opinion for the court. Or if the argument is of determinative importance and seemingly unanswerable within the four corners of the analysis upon which the panel members can agree, the argument may be addressed by the full court sitting en banc. But it is not the established process, and ought never become such, that the authoring or another judge attempt the correction of factual or analytical errors or omissions in the panel opinion through a separate writing respecting a petition for rehearing or rehearing en banc. The reasons that this practice of post-hoc rationalization must be discouraged are many, and need not be canvassed fully in the context of today‘s opinion. But two of these reasons are of especial importance, and deserve notation even in a passing discussion. First, the practice undermines respect for the courts, by leaving the parties and public bound by an opinion that at least one member of the panel has effectively acknowledged was factually or analytically inadequate, at the same time that it consigns the losing party to the appeal of a binding decision that is factually incorrect or legally unsound, but that is made to appear to the reviewing court as less deserving of further consideration by the gloss superimposed by the nonbinding opinion subsequently issued. Second, it sows the seed for confusion among the members of the bar and bench as to what the law actually is, i.e., (where the facts are subsequently added to or subtracted from) whether the principle of law stated in the panel opinion is that confined by the facts as recited in that opinion or those as recited in the subsequent nonbinding opinion, or (where the principle of law itself is modified) whether the governing principle of law is that in the original panel opinion or that in the later opinion. And, in fact, it is not uncommon for the district courts of our circuit, as well as counsel, to cite to and to analyze our separate writings respecting the denial of rehearing en banc as if these writings, rather than the panel opinions that these writings seek to rehabilitate, might be the binding law of the circuit. See, e.g., Martin v. Mendoza, 230 F. Supp. 2d 665, 672 (D. Md. 2002) (quoting from the opinion concurring in the denial of rehearing en banc in Robles); Cogburn v. DaimlerChrysler Corp., 2002 WL 31165151, at *3 (M.D.N.C. 2002) (citing to the order, with accompanying opinions, denying rehearing en banc in Rosmer v. Pfizer Inc., 272 F.3d 243 (4th Cir. 2001)); Club Ass‘n of West Virginia, Inc. v. Wise, 156 F. Supp. 2d 599, 617 (S.D. W. Va. 2001) (quoting from the opinion concurring in the denial of rehearing en banc in Johnson v. Collins Entertainment); 1 Criminal Procedure § 2.7(c) n.197 (2d ed. 1999) (citing opinion concurring in the denial of rehearing en banc in Harvey v. Horan).
Having expressed this concern over separate writings that attempt amendments to our panel opinions, I must acknowledge that Judge Wilkinson‘s opinion concurring in the denial of rehearing en banc in Robles does characterize the Robles opinion as involving a “close” case with respect to the de minimis injury prong of the Bell v. Wolfish inquiry, just as Judge Motz says it does. But, as noted, our precedent in Robles does not rest on any such assessment of relative injury. Without belaboring the point, Judge Wilkinson‘s solitary opinion on the petition for rehearing en banc is just that, and for the reasons discussed it does not — in contrast to the panel opinion in Robles, which he earlier authored — represent the law of our circuit.
At the end of the day, it is apparent that different qualified immunity principles have been applied by the majority in this case than were applied by the panel in Robles. Although it would be of no relevance for the disposition of today‘s case, I would like to think that Judge Motz has reconsidered her concurrence in Judge Wilkinson‘s opinion in Robles based upon the principles of law that I laid out in dissent in that case, see generally Robles v. Prince George‘s County, Maryland, 308 F.3d 437, 441 (4th Cir. 2002) (Luttig, J., dissenting from denial of rehearing en banc). But whether she has or not, that opinion is the binding precedent in our circuit on the availability of official immunity for unconstitutional conduct by law enforcement. It unquestionably requires that Deputy Keller be afforded qualified immunity for his actions. And I would so hold.3
It is one thing to hold, as the court did in Robles, that officers who tied a passive man to a pole in a deserted parking lot at three in the morning and then abandoned him, with no legitimate law enforcement purpose whatever, are entitled to immunity. It is another altogether to hold, as the majority does, that a police officer who tried to get control of a drunk, verbally belligerent, and angry arrestee4 who was disrupting the police department‘s operations, disobeying direct orders to be quiet, and attempting to free his hands, is not entitled to qualified immunity.
The only discernible justification for such seemingly irreconcilable holdings is a different view of the “justice” of this case from the panel‘s view of the “justice” of the case in Robles.