Michael F. Wisniewski v. Johnny Kennard
901 F.2d 1276
5th Cir.
1990
Check Treatment

*2 AFFIRMED. GOLDBERG, Before REAVLEY and Judges. HIGGINBOTHAM Circuit GOLDBERG, Judge, dissenting: Circuit In this fourth amendment PER CURIAM: case, force a material issue of fact exists appeal grant This is an from a of summa- which precluded should have the district ry judgment in damages suit filed granting court from summary judgment. prisoner 42 state U.S.C. 1983 § Moreover, plaintiff’s signif- deputy sheriff and the Dallas such, icant under Johnson v. Morel.1 As I County Sheriffs Office. Wisniewski respectfully dissent. upon apprehension claims that his follow- ing escape, deputy (“Wisniewski”), an Michael F. sheriff hand- Wisniewski him, plaintiff, placed cuffed then sued his revolver Wis- defendants Johnny Ken- mouth, nard, (“Kennard”), niewski’s a deputy threatened to blow his of the Dallas off, County Office, head punched and twice him in Sheriff’s and the Dallas Office, argues County (the stomach. He that as a result he Sheriff’s “Sheriff’s Of- fice”), frightened was under 42 has suffered bad U.S.C. section 1983. Wis- alleged dreams. niewski that Kennard used exces- sive force apprehended when he Wisniew- granted summary The district court response, ski. In the defendants moved for judgment deputy for the and the Sheriffs summary judgment. The district court Office. There is some confusion as to granted the motion. The district court rea- whether Wisniewski’s version of the facts soned that: the defendants established court, properly was before the district that Kennard acted within discretionary his the district court did not ruling rest its on authority and thus used reasonable point and neither do we. Wisniewski Wisniewski; (2) apprehend means to Wis- urges presents case pre- this the issue niewski did not offer proof opposing this Morel, termitted in Johnson v. 876 F.2d conclusion; and, (3) Wisniewski did not al- 477, (5th Cir.1989)(en banc). Morel, 480 In lege significant injury. that he sustained a upon proof we insisted of a inju- ry as a recovery money threshold for the The district court erred. A district court damages under 42 grant summary U.S.C. 1983 where ex- should not judgment § where cessive force in an illegal arrest was material issues of fact The defen- exist.2 claimed. We did not decide whether placed dants themselves Wisniewski’s ver- threshold can be reached absent sion of the facts before the district court parties join also attaching pleading issue on Wisniewski’s verified liability whether should be measured here and sworn affidavit to their motion for 477, (5th examining 1. Johnson v. 876 F.2d 480 Cir. after the entire record we are con- 1989) (en banc). genuine dispute vinced that there is no of a moving party material fact and that the is enti- 56(c) 2. Rule of the Federal Rules of Civil Proce- law.”); judgment tled to as a matter of Romano "[t)he provides, pertinent part, dure that: Pierce, Smith, Lynch, v. Merrill Fenner & 834 judgment sought shall be rendered if forthwith (5th Cir.1987) ("The granting F.2d 527 pleadings, depositions, interroga- answers to summary judgment pursuant to Rule 56 of the tories, file, together and admissions on appropriate Federal Rules of Civil Procedure is affidavits, any, genuine show that there is no when, light viewed in the most favorable to the any material fact and issue as to that the mov- opposing genuine party, no issue of material judgment ing party is entitled to as a matter of judg- fact exists and the movant is entitled to Tanenbaum, Corp. USX F.2d law. See law_"). ment as (5th Cir.1989) ("On a matter of review if, grant summary judgment we affirm brought under 42 U.S.C. pleading This and force claims sec- summary judgment.3 — material of fact. issues tion 1983. created Graham affidavit 104 L.Ed.2d 443 S.Ct. Texas indicted Wisniewski. The State (1989). The Court stated that: Graham dis- the Sheriffs Office July On *3 Lauderdale, Flor- ques- to Fort not Kennard cases have resolved the patched [o]ur warrant, Wisniewski, to under to escort ida tion whether Amendment con- escaped Wisniewski trial in Dallas. stand protec- to provide tinues individuals in Ft. Lauderdale Interna- Kennard from against the use of tion deliberate exces- found Wisniewski Airport. Kennard tional beyond point at which sive force ar- hiding under a truck. parking lot in the begins, pretrial rest ends and detention that he acted within his alleged Kennard attempt we not to answer that and do in Wisniewski. apprehending discretion however, clear, question today. It is that protects pre- Due a Process Clause pleading affida- and sworn In his verified trial detainee from use of excessive however, Ken- vit, Wisniewski contradicted punishment.5 force amounts to that the facts. Wisniewski version of nard’s him, alleged that Kennard handcuffed Because Kennard abused Wisniewski be- his revolver Wis- pressed service confined him after he fore state mouth, and told Wisniewski to niewski’s arrested, very was this case raises the is- his or Kennard would blow open teeth in sue discussed but not resolved Graham. had the hammer on his out. Kennard them however, majority, deciding The averts con- pulled revolver back. Kennard service liability whether Kennard’s should mea- Wisniewski, screaming, to threaten tinued or sured Fourth Amendment substan- threats, that he could along with other process due tive standards because ma- Ken- out. When Wisniewski’s brains blow injury jority that Wisniewski’s is concludes guard watching, security he noticed a nard significant meaning within the of not Mor- by his hair into a truck. threw Wisniewski places logic el. This the cart before the security guard asked Wisniewski When Morel, significant injury horse. Under is name, punched Kennard Wisniewski his necessary of one the three elements to times. A material issue the stomach three a establish Fourth Amendment excessive concerning use of exists Kennard’s of fact The Morel stated that: force claim. court basis, the case should be On this force. plaintiff prevail can ... on a Con- [a] for trial. remanded only by stitutional excessive force claim also claimed that he suffered Wisniewski proving of these each three elements: duress, fear, anguish mental and (1) a significant injury, which a result nightmares as incident. and (2) that these majority directly states The resulted and v. Morel4 I not Johnson clearly use of that was excessive to force disagree. need; and the exeessiveness which was recently Supreme Court discussed scrutiny objectively of excessive unreasonable.6 Fourth nonmoving party summary did not meet their be denied—even if the not defendants 3.The motion.”). proof. responded judgment John State La. burden to the (Board Colleges State and Univer- Trustees (5th Cir.1985) ("It sities), Morel, is at 480. 757 F.2d 876 F.2d however, clear, absolutely that Rule 56 contem- - shifting plates burden: nonmovant un- -n. 5. Graham v. respond obligation to unless the movant der no 1871 n. 104 L.Ed.2d discharges demonstrating (1989). initial burden of n. 10 pleadings, depositions, answers to in- "the that terrogatories, file, Morel, together admissions on 6. Johnson at 480. The Morel 876 F.2d affidavits, plain- any, adopted response show there is to the no court this rule with the plaintiff deprived genuine as to material fact tiff’s claim that the officer issue moving judgment "liberty being party is entitled to of his interest in free of excessive moving contrary party fails to the Fourth Amendment.” Id. matter of If the force law.... burden, judgment discharge summary at 479. must using analyze By police Morel fact that officers are often forced claim, majority split-second has thus assumed that to make judgments cir-—in tense, be analyzed uncertain, Wisniewski’s claim should cumstances that are rapidly evolving Fourth Amendment standards. If the ma- the amount —about of force that is jority post-arrest, pre-trial necessary particular has held that in a situation.” force detention excessive claims merit scrutiny, agree. Fourth Amendment I By adopting the perspective, officer’s did, however, signifi- Wisniewski suffer a Morel court police the need for injury. Regarding significant injury, cant using discretion in force to make arrests. the Morel court stated that: Under conclusion that the *4 objectively used from,

[ijnjuries example, clearly which result unreasonable and for excessive force thus justified they an officer’s use means that of force to over- discretion, or, abused this conversely, impli- come resistance to arrest do not that plaintiff’s privacy the interests constitutionally protected outweighed cate interests. the type need for the inevitably unpleasant An arrest is an of force the ex- abuse, used.10 perience. An Given this officer’s use of excessive Morel’s calculus, eyes clearly moral give import force does not see that constitutional resulting injury addressed, must be intangi- to that would have occurred ab- ble or not. the force, sent excessiveness the or to minor harms. Nor can transient distress Adopting Morel’s language, Wisniew- significant injury.... constitute a injury ski’s would not have occurred absent unlikely think signifi- We it that such a Kennard’s excessive use of force. Ken- injury cant will caused unneces- nard’s use of force clearly exceeded the sary significant force without physical necessary amount apprehend to Wisniew- However, on the facts before us Shoving ski. a cocked loaded service re- here, we do not signifi- decide whether a volver into a suspect’s handcuffed mouth cant non-physical injury would be is, moreover, objectively unreasonable. legally sufficient.8 absurdity The any argument to the con- trary patent. is By referring Given this heinous to minor harms and transient behav- ior, distress, I do why not understand the majority the Morel court labeled injury insignificant. injuries, de minimis both psychological, constitutionally are not ac- The rationale cannot be that Kennard they may tionable because occur even not, unintentionally. acted He did even the objectively force used to arrest is rea- though the relevance of his state of mind is clearly sonable and not Regard- excessive. instead, Perhaps, unclear. majority the be- ing may the amount of force that an officer intangible injuries lieves should not be ac- use, the quoted Morel court Graham for however, my mind, tionable. To Wisniew- proposition the that: alleged, purpose ski opposing the particular

“the of a ‘reasonableness’ use summary judgment, that Kennard’s actions of force judged per- must be from the clearly objectively were excessive and un- spective of a reasonable officer on the government reasonable under Morel. The scene, rather than with the 20/20 obligation vision thus remedy has a moral to hindsight_ inflicted, The calculus of reason- tangible intangible. or embody ableness must allowance for the The Fourth Amendment demands no less. Id. requires balancing 7. at 480. Fourth Amendment a careful quality of the 'nature and of the intrusion on the added). (emphasis Id. at 480 n. 1 individual's Fourth Amendment interests’ against countervailing governmental — inter- (citing 9. Id. at 479 Graham v. — Graham, -,-, ests at stake.” U.S. at 1865, 1872, 104 L.Ed.2d (1989)). S.Ct. at 104 L.Ed.2d at 455. The Fourth 455-56 protects privacy Amendment individual’s "Determining whether the force used ef- dignity interests. See note 12. infra particular fect a seizure is ‘reasonable’ under the dignity jority strips of the protects decision citizens Amendment

The Fourth provides.12 that the amendment and seizures.11 To unreasonable searches excessive force analyze Fourth circumscribing By types of actionable clearly court created the claims Morel majority expanded, injuries,13 the objectively unreasonable excessive and door, through permis back ambit majority’s interpretation of The legal alchemy, standards. Through force.14 sible requirement, injury Morel’s of discre majority transformed shield however, inconsistency tion, an between badge, creates emblematized officer’s itself. Because intangible amendment wounds. into a sword that cuts Morel prohibits injure ways Fourth Amendment now that will although The state seizures, morally ar government legally remain invisible—albeit unreasonable injuries, danger, restive. Dutiful to this the dissent liability for unreason- may avoid in Morel cited from the brief of United clearly force un- ably caused Thus, CURIAE Graham. States AMICUS ac- intangible. der argued general solicitor that: injury majority, when cording requirement sight, injury” so “severe ... does vanishes [A] standard, inappropriate. *5 protection. The ma- Under that cloth of Amendment’s very guard right people declared ‘as of the to be secure their been be of the 11. The effects, houses, against liberty’ guaranty papers, and of the persons, un essence constitutional of seizures, important imperative and shall not be which 'is and as are reasonable searches violated, as as issue, upon guaranties rights but no Warrants shall and the of the other fundamental cause, supported by affirma probable tion, ”); oath or the citizen....’ of individual describing place particularly the to be and searched, things persons or to be seized. and argues One commentator that courts should Const, IV. amend. U.S. expand recognition of intentional infliction distress: of emotional Martinez-Fuerte, v. 428 U.S. 12. United States objection protection cogent The most to the of 3074, 3081, 543, 554, 49 L.Ed.2d 1116 96 S.Ct. injuries] mental lies in the [i.e. such interests (1976) ("The imposes Amendment limits Fourth might only opened, "wide which be not door” powers pre order to on search-and-seizure claims, litigation in to fictitious but to oppressive arbitrary interference and vent of It be absurd for per field trivialities.... would privacy and officials enforcement peace individuals.”); law secure to seek to universal of security v. of Davis Missis sonal 726, 1394, 1397, mind, 721, many with it must of 89 22 and interferences sippi, S.Ct. 394 U.S. necessity (1969) agencies (“Nothing clear left to other of social is more than L.Ed.2d 676 pre large part "Against was meant to control. a of the frictions Fourth upon personal temperaments clashing intrusions se and irritations and of vent wholesale life, citizenry....”); community participation curity Camara v. Munici in a of our incident to 1727, 523, 528, 1730, Court, pal toughening U.S. S.Ct. a 87 a certain of mental hide is better 387 ("The (1967) purpose protection basic of L.Ed.2d 930 the law ever be.” But 18 than could Amendment, recovery in countless de poor denying this this is a reason for Court, safeguard privacy is to any genuine, of cisions serious mental It is the arbitrary security in remedy wrongs of individuals and business the law to of officials.”); by government it, expense Schmerber vasions at the of a “flood of deserve even 757, 767, California, U.S. S.Ct. 384 86 litigation,” pitiful a and it is confession of (1966) ("The overriding 16 908 incompetence part L.Ed.2d court of on of protect Amendment is to justice deny grounds. function of relief on That a such dignity against privacy unwarrant personal multiplicity is not a of actions follow Texas, State.”); ed intrusion persuasive objection; if are multi- Stanford 484-85, 506, 511, 13 injured plied, multiplied, 379 should be so actions first, (The and fifth fourth recompense. L.Ed.2d 431 parties may So far as dis- have related, "closely safeguarding amendments are tinguishing claims from false ones con- true protection against cerned, only privacy self-in required not a careful what is is rather dignity claim; human but 'conscience and scrutiny supporting crimination evidence of the ” expression (citing of as well.' and freedom of calls for and the elimination trivialities 360, 376, 79 Maryland, 359 U.S. S.Ct. nothing Frank v. common sense more than the same 804, 814, (1959) (dissenting opin trifling 3 877 distinguished L.Ed.2d serious from which has 23, 32, California, ion)); 374 U.S. Ker v. State law. in other fields (1963) ("Im Keeton, Torts, 10 L.Ed.2d 726 S.Ct. section The Law Prosser and protection plicit (Fifth 1984). Amendment’s in the Fourth Ed. seizures is its searches and unreasonable 876 F.2d at recognition That 14. Johnson v. freedom. safe- of individual could, police any justifica- officer without

tion, person beat a on the head with a beating if

club causes a bruise. police

Similarly, a could terror- officer suspect ize nondangerous by pointing gun at his head the chambers short,

gun empty. acceptance In

the standard would allow the unreason- police

able use of force in cases where poses grave

conduct risk and causes harm,

terror or even where seized, person chance, does not suffer injury.” a “severe

The majority has sanctioned Kennard’s be- now, Except

havior. when the

threaten, they may already have hand- suspect,

cuffed the guns, loaded the

pulled triggers. join. back the I cannot very priva-

Kennard violated the essence of

cy and freedom that the Fourth Amend- protect.

ment was meant to *6 WASHINGTON,

John E.

Plaintiff-Appellant, COMPANY,

ALLSTATE INSURANCE

Defendant-Appellee.

No. 89-3682

Summary Calendar.

United Appeals, States Court of

Fifth Circuit.

May 1990.

Rehearing July Denied added). (emphasis Id. at 481