Winfield v. G.L. Bass

WILKINSON, Judge, and Chief Before HALL, WIDENER, RUSSELL, WILKINS, ERVIN, MURNAGHAN, LUTTIG, HAMILTON, NIEMEYER, MOTZ, MICHAEL, WILLIAMS, and PHILLIPS, Judges, and Senior Circuit Judge. Circuit Judge opinion. by published Reversed majority opinion, wrote WILKINS Judges Judge and WILKINSON Chief which NIEMEYER, WIDENER, RUSSELL, WILLIAMS, HAMILTON, LUTTIG, Judge joined. WILKINSON Chief MOTZ Judges in which concurring opinion, wrote WIDENER, RUSSELL, and HAMILTON concurring Judge joined. MOTZ wrote Judge wrote PHILLIPS opinion. Senior HALL, Judges dissenting opinion, ERVIN, MURNAGHAN, and MICHAEL joined.

OPINION

WILKINS, Judge: Circuit Virginia Winfield, inmate at a

Rodney brought action facility, correctional state (West 1994), § 1983 to 42 U.S.C.A. pursuant his con- prison officials violated alleging that Fifth, Eighth, rights under stitutional failing to by Amendments Fourteenth Gibson, inmate, T. him from another protect shank. with metal Winfield attacked who prison claimed Specifically, Winfield indifference deliberate exhibited officials prior Gibson safety failing to restrain his declining intervene the attack Appellants—Warden began. the attack after G.L. Bass and Correctional Officers Kelvin then nearby hurried control-booth to Carlyle, Anthony Clatterbuek, Hicks, James obtain batons and returned to the second Sizemore, Williams, Galvin Ronald Don- tier. ald Wilmouth—appeal the denial the dis- meantime, once inside Winfield’s trict their claim enti- cell, began Gibson swinging shank, strik- summary tled to judgment on the basis of ing Winfield. prison Before the staff re- qualified immunity. Because we conclude sponded, inmate, another Scott, John entered the district court in refusing erred and, Winfield’s cell although stabbed Gib- grant summary judgment in favor of Appel- son, was able to wrestle the away shank from lants, we reverse. him. The entire incident happened very quickly; only ten seconds were estimated to

I. elapsed between the assault on Officer The evidence presented by Appellants in Williams and Scott’s successful effort to di- support of their motion for sarm judg- summary Gibson. Order restored, and War- ment set forth the following facts. den Bass Winfield advised the disturbance. and Gibson were confined at the Greensville response to the prison officials’ motion Correctional Center. Late evening on the summary judgment, presented Winfield February Winfield, Gibson, and a his affidavit documentation from his in- third inmate were conversing a cell when a grievance mate proceedings. These materi- dispute developed between Winfield and Gib- als did not take issue with the substance of son. A scuffle ensued that spilled out of the the factual assertions set forth prison in the cell and onto the second-floor tier of the officials’ They, however, affidavits. pro- did prison. Responding disturbance, to this at vide three allegations additional concerning least proceeded six officers to the second these events that had not been included in floor. fray had ended they the time the officers’ that, submission and pur- arrived, however, because the inmates imme- poses judgment, should be taken diately dispersed when saw the officers as true. advancing. officer, When the supervising Lt. First, Winfield asserted approximate- Hicks, directed that Gibson be from removed ly attack, one hour before the Gibson, Win- tier, prisoners protested, other insist- field, and two other inmates had been ing that Gibson had done nothing wrong. drinking homemade wine. Moreover, he Fearing that an attempt to move Gibson maintained that Lt. Sizemore and Officer under these might circumstances result Clatterbuek observed this behavior during major disturbance, Lt. Hicks all ordered ex- their rounds. Gibson had a brief conversa- cept two of the officers to withdraw from the tion with these officers at that time ap- prevent tier to the confrontation from esca- parently convinced them not to confiscate lating. Only Officers Williams and Walker the wine. cell; remained outside Gibson’s neither offi- cer was armed. Second, Winfield contended that when the inmates dispersed following his initial alter- At point, began events to unfold swift- Gibson, cation with he returned his cell ly. suddenly Gibson and without warning pressed a buzzer that sent an electronic emerged from his cell wielding a homemade signal to a central location to indicate that he knife, striking Officer Williams in the face wished to have the door to his cell closed and fist, with his knocking him against back Despite locked. several attempts Win- second-tier railing. Gibson then bolted into field to secured, have the door the officers Winfield’s cell three away. doors Officer controlling the respond. mechanism did not Walker immediately radioed assistance. After Clatterbuek, Officer who was Third, now on importantly most pur- for our floor, the first observed Gibson running poses, Winfield claimed that in order to enter cell; his he instantly yelled out a warning the cell to extricate the Gibson, shank from that Gibson had a knife. Officer Clatterbuek Scott found it necessary push past two and the other correctional present officers officers who stood looking throughout 1292(b) § See 28 U.S.C.A. ment decision. nei- Further, asserted Winfield attack. 1993). subsequently And, (West this court provide attempted of the officers

ther permissive permitting an order with entered struggled he while to Scott assistance interlocutory appeal. shank. for the Gibson record, court the Su pending, on this Based appeals While for sum- motion Jones, officials’ prison denied Court decided preme claim respect to their With mary judgment. 132 L.Ed.2d of material no feder there were jurisdiction (1995), addressing the they were and that necessitating a trial fact an immediate entertain court appellate al law, the matter as a entitled of a district from a refusal court reasoned: quali upon based grant summary reviewing Thereafter, relying on John defendants’ immunity. After fied brief and plaintiffs opinion an motion issued judgment son, this court panel of a motion, the Court the opposing jurisdiction lacked concluding affidavit that we over of ma- genuine are district that there of the finds from the decision appeal the Court Indeed, case. Appel this fact in to denying terial qualified court fact-specif- peculiarly case is that this for the interlocu finds permission and that lants on the to trial proceed thus summary and should ic of the remainder tory appeal improvidently. merits. granted order judgment Cir.1995). (4th Bass, argument F.3d 529 67 Appellants’ v. Turning to 80. J.A. Winfield to immunity, voted subsequently court qualified majority of the A entitled to they were that v. en appeals banc. opined: these court hear district Winfield Cir.1996). (4th Bass, F.3d 529 67 incarcerat- that individuals is axiomatic It to entitled facilities in correctional ed jurisdiction to enter- our first address We pro- secure, right is and that kept 94-7346, chal- appeal number tain Amendment, Due Eighth by the tected deny- court of the district lenges the decision Amendment, Fifth of the Process Clause to are entitled claim ing Appellants’ of the Clause Equal Protection And, concluding that we immunity. qualified to United Amendment Fourteenth so, turn to we to jurisdiction do possess Moreover, this funda- Constitution. States prison officials whether consider certainly security to mental our immunity. Because qualified to entitled the time “clearly established” erred court district determination Furthermore, where plaintiff. on assault Ap- refusing grant allegations the factual appears from it immunity is qualified the basis of pellants access to liberal are allowed prison inmates us, presented questions dispositive weap- dangerous beverages and alcoholic number 95-6422. appeal need address we to know are bound ons, officers corrections is at safety other inmates II. risk_ Thus, people in de- reasonable known position[s] fendants’ granted appeals are courts of Federal ] toward[ attitude[s] permissive their district final decisions of jurisdiction hear the in- violate and shanks would spirits (West § 1291 U.S.C.A pursuant to 28 courts safety and secu- right to continued mates’ a order of 1993). an extent -that To the rejects defen- Accordingly, Court rity. offi rejecting governmental court district immunity defense. dants’ on a turns immunity defense cial’s within law, 81-82. J.A. a final decision question collateral § meaning 1291 under filed prison officials v. recognized Cohen doctrine denying order Benefi of this portion decision 541, 69 337 Corp., Loan U.S. Industrial on cial judgment based summary motion (1949), and there 1528 93 L.Ed. addition, immunity. appeal. See subject to immediate fore for immediate court certified — —, —, Pelletier, U.S. Behrens summary judg- appeal the remainder of 834, 836, 133 (1996); both, L.Ed.2d 773 supply John difficulty in assessing the —son, at —, jurisdictional U.S. 115 S.Ct. at threshold issue will remain be 2155-56; Forsyth, Mitchell v. cause the determination of whether the law 2806, 2814-18, L.Ed.2d was established at requisite level particularity especially is an fact-bound legal inquiry. Ross, See Prosser v. 70 F.3d Prior the decision of the (8th 1005, 1006 Cir.1995); Groose, Reece v. this court had ruled that it was Cir.1995). F.3d Moreover, all appropriate appeals court of to review a denials summary judgment, by definition, rejecting order a defense of involve determination that the evidence is qualified immunity conceptu on either of two disputed sufficiently raise ally Dammon, distinct bases. Turner Behrens, of material fact for trial. See (4th Cir.1988). F.2d 443-44 permit We 842; 116 S.Ct. at Fed.R.Civ.P. ted officials who were denied judg And, every inherent determination qualified immunity ment the basis of governmental that a official is not entitled to argue that the erroneously district court had qualified immunity is the determination refused to enter in their favor be light viewed most favorable to the presented cause the evidence was insufficient nonmoving party, the official’sconduct violat to create a triable issue of fact or because the clearly aed established constitutional or stat governmental that right pur official had utory right. See Creighton, v. Anderson 483 portedly clearly violated was not established. 635, 638-41, 3034, 3038-40, U.S. 97 Court, however, rejected Id. The Johnson (1987). L.Ed.2d 523 Accordingly, — each deci prior practice. Johnson, our See U.S. sion of a district denying governmen court a 115 Although 2154-59. request tal official’s position Court reiterated the that upon qualified based immunity will encom appeals possess jurisdiction courts of to con pass a determination that the facts are suffi appeals from rejecting sider decisions prof a ciently controverted to a warrant trial and qualified immunity fered defense to the ex legal right that the purportedly violated was tent that ruled that court clearly Obviously, established. if a determi right the official purportedly violated by a genuine nation district court that issues clearly was established at the time the action of material fact warrant trial were sufficient taken, it was held that to the extent that the prevent exercising jurisdiction to us from of the order district upon court rested a appeal an over from order rejecting an a determination that presented the evidence defense, immunity we would never genuine was sufficient to raise a issue of jurisdiction have appeals—a over such result trial, material fact necessitating the order is plainly at odds with progeny. Mitchell and its not a final one from which an immediate — Behrens, at —, See U.S. 116 S.Ct. at appeal be taken. An articulation of this distinction is straightforward, application rather an but Consequently, conclude we that we may prove to be more possess jurisdiction difficult. See Wool to consider an appeal Smith, (8th Cir.1996) 741, v. 81 F.3d 743 from a decision of a rejecting district court a folk curiam). (per Court government directed official’s claim entitlement to in determining that our jurisdiction in this to the extent that immunity area, we should consider the order entered official maintains that the official’s conduct by the district court to assess the basis for clearly did not violate Al established law. — Johnson, at —, its decision. See ternatively, U.S. to the that appealing extent 115 S.Ct. at 2159. recognized, As argue official insufficiency seeks to however, a district invariably court does genuine evidence a issue of material raise provide a clear basis for its decisions or example, set present fact—for that the evidence fully forth the facts on which its resolution is was support ed insufficient to a conclusion grounded. And, See id. even in those cir engaged particular that the official in cumstances in which a alleged—we possess jurisdie- does conduct do not

530 and, question § 1291 consider this latter the claim § 1291 to consider tion under turn now to address it. therefore, may not so absent some inde do base. jurisdictional See pendent III. 2156-58; 115 S.Ct. at County Bd. v. Cleveland performing see also Shinault dis Government officials (10th Comm’rs, 367, F.3d County cretionary entitled functions are Cir.1996) jurisdiction con (recognizing liability damages that for civil from portion of the order from the that “their conduct does not vio by trolled extent statutory late or constitu argument appeal taken rights person tional of which a reasonable Brundage, F.3d appeal); Sanders Cir.1995) Fitzgerald, (8th would have known.” Harlow v. (explaining that jurisdiction). In appeal raised control analysing L.Ed.2d jurisdiction words, possess no over other we rejection qualified immunity a presented plaintiff has not a claim that defense, spe identify first our task is plaintiff’s enough prove that the evidence right in plaintiff cific asserts was occurred, actually but version the events fringed conduct, challenged recogniz jurisdiction over claim there we have right at the must defined clearly established law no violation appropriate Taylor particularity. level of as the district court accepting the facts Waters, Cir.1996). 81 F.3d We viewed them. whether, then at the time of the consider violation, claimed es Here, part Appellants did assert “ person tablished and “whether reasonable presented Winfield was the evidence position in the official’s known raise of materi insufficient ” right.’ that his violate conduct would (ie., necessitating a trial al fact Kidd, 1087, (quoting Gordon v. 971 F.2d support his factu insufficient evidence was (4th Cir.1992)). 1093 extent, al that we lack allegations),1 and to jurisdiction § consider it. pursuant general allega- 1291 to Although made Winfield Nevertheless, denying prison Fifth, officials’ rights Eighth, the the tions that his under violated, judgment, motion for Fourteenth Amendments were legal right gist plainly complaint prison ruled the of his is that the that Winfield’s personal deliberately security established. officials indifferent to the were Moreover, supple specific physical serious Appellants made clear risk harm thus, decided, Gibson; briefing posed by prohibition to him mental Johnson was the after imposed argument and in this en banc the Punish- oral before Cruel Unusual court, the they press legal Eighth issue of ments Clause of that Amendment and applied through that to the Due Pro- undisputed whether the disclose states have understood cess of the reasonable officers would Clause Fourteenth Amendment is right Appellants that Winfield’s the broad constitutional that their conduct violated Seiter, infringed. purportedly v. rights. See Miller Schoe See Wilson v. (8th Cir.1996). nen, 294, 296-97, 1305, 2321,2322-23, 501 U.S. 75 F.3d 1308-09 (1991).2 jurisdiction possess 115 271 We under L.Ed.2d therefore hardly given specific surprising 2. This is that initial Because the constitutional standard applicable under Cruel Unusual Punish- briefing completed before Eighth supplies ments Clause Amendment prior and that decided Johnson deci- pro- "explicit textual an source constitutional Appellants permitted sions this court raise infringement alleged tection” for this of Win- addition, in such this instance an a claim. rights, field's we need not address a substantive independent jurisdictional permit basis existed Connor, process due claim. Graham 490 U.S. our claim we consideration of the because had 386, 10, 1865, 5, & & n. S.Ct. 1871 n. 395 109 granted permission appeal for an (1989). Further, Ap- 443 because 104 L.Ed.2d certifying after the district court entered order actors, analysis pellants are not federal our order remainder governed by would be the Fourteenth Amend- appeal. for immediate ment rather than the Due Process Clause of the

531 The district court right Palmer, ruled that the 517, 526-27, 104 468 U.S. 3194, personal security protected by Eighth 3200, (1984)). 82 L.Ed.2d 393 Further, Amendment was well established at the time was well established encompassed that within underlying events transpired. duty requirement was a prison offi “ But, it is axiomatic defining applica cials take reasonable steps protect ‘to pris right at degree ble of abstraction is oners from violence at the hands of other Anderson, inappropriate. 483 U.S. at prisoners.’” Id. (quoting Cortes-Quinones Rather, S.Ct. at 3038-39. Jimenez-Nettleship, 556, (1st 842 F.2d right Cir.), denied, the official alleged cert. 823, 109 to have 68, violated must (1988)); have been “clearly L.Ed.2d 45 estab- see also Pressly v. Hutto, lished” in particularized, a more and hence F.2d Cir.1987). relevant, more Knowledge sense: prison contours of the officials of a sufficiently sufficiently must be serious clear physical rea- threat of posed by harm

sonable official prisoners other understand that and deliberate indifference to doing what he is such a right. plainly violates that risk This amounted to a violation of say is not Eighth that an official action Farmer, Amendment. See protected by qualified immunity 2, 114 U.S. at unless 831-34 & n. S.Ct. at 1976-77 & very question action n. 2 previously (noting has Eighth been Amendment is vio unlawful, held but it say prison is to lated that in the officials when require two light (1) of pre-existing ments law the met: unlawfulness action or inaction results in must be apparent. or creates a sufficiently serious risk of a deprivation that objectively results (citation Id. at in denial 107 S.Ct. at 3039 omit- of the “minimal ted); civilized measure Malley see of life’s v. Briggs, (2) necessities” and a “sufficiently culpable (1986) 89 L.Ed.2d 271 state of indifference) mind”—here (Qualified deliberate immunity protects “all but (internal quotation omitted). marks Never plainly incompetent or those who knowingly theless, the Court recognized: has law.”). Thus, violate the we inquire must [Pjrison officials actually whether who the established contours of knew Eighth substantial risk to Amendment inmate health sufficiently safety clear may be found the time of free liability the attack if to make it plain to responded reasonably risk, reasonable officers that to the even if actions under the harm ultimately particular these was not averted. A circumstances violated Win- prison .rights. duty field’s official’s In under case, Eighth the context of this we Amendment is ultimately to ensure upon are safety, called to decide reasonable whether a standard that incorporates it was clearly regard due February in established 1993 prison for that an prison officials’ unarmed unenviable official task of would be keeping dangerous deliberately in custody indifferent men safe to need inmate’s if, under safety humane during an conditions. by Whether one prisoner attack a puts it in duty of armed with terms or dangerous weapon deliberate indif- upon anoth- ference, prisoner, prison er officials reasonably who act instantly the official mobilized to cannot be found take control liable of the under the situation Cruel and but failed to Unusual immediately. intervene Punishments Clause. We conclude that it not. was (citations 114 S.Ct. at 1982-83 omitted). and internal quotation At the marks these 1993, time events occurred in it was clear that as a component of duty We are say unable to that the contours of provide to inmates with humane conditions of Eighth right, Amendment considered at confinement, prison required officials were to appropriate level of particularity, were “ ‘take reasonable guarantee measures to established sufficiently such that a reason- safety of the inmates.’” Farmer v. Bren understood, able official would have at that nan, 825, 831, 511 time or today, Appellants’ indeed re- (1994) 128 L.Ed.2d 811 (quoting Hudson v. sponse to Gibson’s attack on Winfield any

Fifth Amendment in V, event. See U.S. Const. amends. XIV. 532 they became as soon as in the attack tervene court Certainly, this had unreasonable. risk, becomes question of circumstances aware some under clear made failing correctional offi- completely unarmed the two liable whether may be officials attack one be- avert an the attack present to when any cers who to take action that a knew right when clearly on another established prisoner violated gan See, e.g., existed. immediately of harm risk substantial the officials to Winfield’s (4th 1147, Leeke, 1152 574 F.2d Gordon intervene. denied, Cir.), cert. However, the undis L.Ed.2d to point to is unable Winfield Appel demonstrate3 facts here puted pris an unarmed establishing that decisions clearly established violate did not lants to indifference deliberate on official exhibits First, undisputed it is right of Winfield’s. safety, need for or reasonable an inmate’s were aware prison officials of the none failing to intervene unreasonably, by acts posed a a shank possessed Gibson prisoner one attack immediately in an safety prior to the specific risk Winfield’s another. dangerous weapon on with a armed his cell.4 emerged from moment Gibson authority are Indeed, of which we all of aware Thus, became correctional officers that such hero to the conclusion aware leads earliest, harm, when of the risk constitutionally required. are not ic measures and assaulted emerged from his cell Gibson (“[P]rison Prosser, F.3d at See Farmer, 511 U.S. at See Officer Williams. duty to inter constitutional have no guards (recognizing that lack 844, 114 at 1982 upon inmate assault of one in the armed vene complete de risk is knowledge place the intervention another when to a indifference charge of deliberate fense harm.”); Mac- danger physical guards in harm). Moreover, it is risk of substantial (10th Farnsworth, F.3d Kay v. seeing emerge upon Gibson undisputed that Cir.1995) (Failure immediately intervene immediately cell, prison officials from his prisoner, attack one who physical the situation. control of to take mobilized shank, held not to upon another wielding a instant radioed for assistance Officer Walker part be indifference amount deliberate warning, out a called ly. Clatterbuck Officer backup.); had prison officials called cause had returned to who officers and all Jones, 891 F.2d Arnold immediately obtain ran to ba floor the first (“[U]narmed Cir.1989) prison officials have to the second proceeded back tons and then physically duty a matter law no attack. Ac ending provide tier to aid fight prison cause intervene that the officers undisputed fact cepting the injury the situa- or worsen safely them serious in- began preparations immediate safely. physical This summarily established setting forth some of the Although facts, assessing conduct judging reasoning officers' whether whether the is misdirected. law, the district court qualified immunity, violated Appellants entitled to materiality recognize apparently failed to inquire officers in whether reasonable must other, undisputed in the affidavits facts disclosed recognized positions would that Appellants' those facts by Appellants—particularly submitted surrounding rights. See violated Winfield's their conduct by various the actions taken .the Anderson, 640, 107 S.Ct. at 3039. 483 U.S. at response to Gibson's at- officers corrections tack on Thus, question is whether the law pertinent the information con- Because the Winfield. the by prison a failure clearly established that revealed cerning officers' actions that immediately alcoholic bev- officials to confiscate question into Appellants' by was not called affidavits (Winfield by possessed concedes erages inmates submission, opposing either direct- Winfield’s concerning knowledge Appellant no had ly by appropriate the facts inference an . Winfield, properly by weapons) consid- we unreason- possession as constituted asserted purposes undisputed ad- er these facts risk to response inmate to substantial able legal presented. See dressing Celotex even safety. points to decisions ar- no Winfield 317, 323-24, Catrett, Corp. conclusion, and our guably supporting such 2552-53, 91 L.Ed.2d 265 any. We hold that failed to disclose research has based court that the district to the extent that reasonable 4. The court concluded district wine, Ap- a failure confiscate decision on positions Appellants' would have officials in pellants entitled permissive toward alcohol attitudes known that immunity. basis dangerous weapons violate Winfield's tion_”). The correctional officers violated als submitted to the district court to deter- right of record, no Winfield’s be- mine what the viewed in light required were not cause risk serious most favorable to nonmoving party, dis- unarmed, bodily by entering, harm into a closes in order to have a upon factual basis fray with an armed and violent assailant legal which to base its conclusion. during period the short before assistance dissent, however, opines that in direct undisputed arrived. The facts demonstrate appeals courts to determine the facts Appellants’ response to the risk to Win- assumed,” that district “likely courts the Su safety field’s was reasonable. No preme Court indicated that our task is not to having violated, established law been attempt to divine what the evidence viewed

prison officials were entitled to im- light most plaintiff favorable to the munity.5 actually Rather, showed. sug the dissent gests that we should construct from the rec IV. ord a set of facts supports legal appears It principal source of by conclusion reached the district court. See disagreement by offered the dissent concerns pp. 542-44. agree. We cannot infra approach determining our the factual basis The rationale underlying the Johnson deci resolving to which we must look in legal “precedent, sion was that fidelity statute, question possess jurisdiction— over which we underlying policies,” namely “consider perhaps aspect the most difficult of our re delay, comparative ations of expertise of trial qualified immunity view of denials of in an courts, appellate appel and wise use of interlocutory appeal yet and one that has not resources, late argue[d] in favor of limiting conclusively by been resolved interlocutory appeals ‘qualified immunity’ — Johnson, at —, Court. See U.S. matters to presenting eases [neat] abstract (noting question S.Ct. at 2159 of how an — issues of at —, law.” U.S. appellate court should determine “what set 115 S.Ct. at Essentially, 2158. the Court facts to assume purely when answers the concluded that gained, there was little to be legal question ‘clearly about established’ law” incrementally, in terms of providing addition presents problem). a serious protection al to officials and much to be lost recognized The Johnson Court that it appellate judicial terms of resources possible will often appellate for an permitting interlocutory appeals maintaining to utilize the facts that were assumed that a district court had in concluding erred court in denying the motion for sum presented the evidence was sufficient to But, mary judgment. Id. Court also raise a issue of material fact war acknowledged that in ranting some instances at —, the dis trial. See id.

trict fully court will fail forth set Accepting facts S.Ct. at 2156-59. as the Johnson did, on which its however, decision is based. In that Court that a “cumbersome re circumstance, explained, the Court “a court view” of the record must be undertaken appeals may have to undertake a cumber when the fully district court fails to set forth some review of the record to upon based, determine what the facts which its decision was court, facts the district light most underlying the concerns holding in John nonmoving party, likely favorable to the as son do not counsel in favor aof conclusion Id.; Behrens, sumed.” 116 that our determination should be based view, In our upon mythical (ie., when a district some set of facts a set of fully court fails support set forth the facts other than those shown the evidence ing legal its government conclusion that a actually light viewed in.the most favorable to official is not to immunity, entitled nonmoving party) may may the that not appeals the court of must review actually the materi-' upon by have been relied the district 5. Since the alleged present corrections officers who only not and whose connection to the directly to have been involved in the events can- supervisory was his role incident over the offi- any clearly not be found to have violated estab- cers, cannot be held liable. Winfield's, Bass, lished of Warden who was result, And, this it reached. legal conclusion indicate that Instead, concerns those court. by the maintains, compelled a upon the based dissent be should legal decision the in grounded opinion taken presented, decision—an Johnson evidence of the proper view economy. judicial nonmoving efficiency and to the of concerns favorable most light

in the by the avoiding view, advocated position un- of the Indeed, concerns In our the party. judicial the Su- surely the one use of re- cannot be delay wise dissent necessary to its Court the Johnson intended. preme Court led that sources pos- appeals courts of holding—that principal appeals of courts of the other Finally, none the abstract to decide jurisdiction sess the what addressed that have review—per- on legal issues we must that when it instructed Court meant facts the determining what that us suade “likely as- court what determine assumed,” we must de- “likely court district urged approach have taken the sumed” actually shows evidence the what termine Caldwell, 85 F.3d Cottrell dissent. See the to light most favorable in the when viewed Cir.1996) (11th (reviewing record 1480, 1491 nonmoving party. the of ma- genuine issues whether determine to indicated Moreover, Johnson Court the court failed district existed when terial fact course: discuss proper the this was that legal its basis for the factual to set forth determining factual the necessity of ing the Rother, 84 F.3d ruling); Heidemann v. ruling will be legal our upon basis Cir.1996) (concluding that a 1027 & n. fully court fails to district a when premised “likely court of what determination legal conclu basis its factual set forth appeals to under- requires of court assumed” that “a rule sion, Court noted usual, of to deter- novo review take de record evi requires a detailed occasionally evidence, light most viewed mine what still, of the record review dence-based showed). nonmoving party, to favorable view, manage of more point practical from a factual appeals requiring Similarly, question proper of of courts a rule able than” legal type purely of review. the same routinely conduct our resolution basis for to Thus, jurisdiction possess at 2159. which we question over those infre its on court bases plainly may envisioned when a district Court arise facts, other, court does undisput a district when but quent occasions on stated decision decision, its basis for ed, present the factual that dictate supply facts are material type required undertake is en governmental we be official would conclusion that n generally be would immunity. review For the same of novo de titled to prohibited.6 that this support our conclusion reasons that pre actual evidence look to the court must Furthermore, suggestion dissent’s light most favorable sented viewed record is not the factual view correct court nonmoving party when a district determining what the district controlling in legal the factual basis for supply fails assumed,” we but instead “likely court other, decision, ignore undis we should of facts construct a set attempt should rendering our puted, decision decision of the district legal supporting the Taking an undis account of legal question. paradox. Employ- court, an absurd presents rendering legal conclusion puted fact analysis, we would mode dissent’s conceptual to “Cohen’s violence neither does obviously incorrect an required to affirm be nor involves this appealability” theory of conclusion, based “assumed” legal weighing of record type of in the facts, court we simply because equally incorrect unacceptable. found that the Johnson “assume” that the dis- required to at —, 115 “likely” an view took incorrect trict court Further, a district does at 2156-57. support the incorrect in order the facts determining appropri- be limited say ord must factual basis when the is not That basis,for resolving purely denying ate factual court decision for the district course, recognize, that in unclear, presented. We appeals have full immunity is courts theoretical be more practice distinction jurisdiction factual to consider practical. Instead, than the factual rec- consideration nature. possess any not advantage institutional in the decision which represents neither the termi- fact, consideration undisputed of an and the nation of meaningful interlocutory review nor acceptance of such fact does not consume the qualified demise of the immunity defense. significant appellate resources. See id. dissent, at The by contrast, would enfeeble the —, 2157-58. On the law enforcement function specifically—and hand, other the failure acknowledge public ah decision-making generally—through- undisputed fact could result in considerable out this circuit. delay inefficiency—for example, if the

failure to do so results in the quali denial of I. immunity fied in circumstances when the The dissenting opinion consideration has a undisputed technical ten- fact would or, but no one result in should its import. an official’s mistake entitlement to it. As the it, dissent would have virtually Johnson sum, we conclude that when a district abolished interlocutory appeals of denials of to set fully fails forth the factual basis qualified immunity. In actually applying upon legal which its conclusion govern- that a Johnson, suggests dissent only that the mental official is not summary entitled to subject issue still appeal is judgment on qualified the basis of immunity, legal right whether the allegedly violated was this court reviews the properly evidence be- “clearly Finding established.” that Winfield fore the district court for purposes of consid- had a right prisoner “well-settled” as a ering judgment question. It “protected against physical harm at then evidence, determines what the viewed in hands of fellow inmates resulting from the light most favorable to the nonmoving deliberate or callous prison indifference of party, demonstrated. This is the factual ba- specific officials to known risks of such sis that the district court “likely assumed” in harm,” the dissent concludes that our review rendering legal its conclusion and is the fac- under complete. Johnson is upon tual basis which this court must render on decision the purely legal pre- This marks an development ominous sented in appeal. Furthermore, many public when decisionmakers. Although the undisputed material facts present dissent is indefinite on point, the district court did not ruling consider in way can be affirmed is on the qualified issue, this court belief that the allegation mere of a clearly ignore need not those facts in rendering its right abstract suffices for a case legal decision. go to trial. Whether the abstract right plaintiff asserted is “clearly es-

REVERSED tablished” will rarely be controversy in a qualified denial of a WILKINSON, immunity-defense. Judge, Chief The concurring: primary issue will always almost be whether My dissenting colleagues they believe given facts demonstrate right that the — Jones, found in U.S. —, Johnson v. question has been violated. The instant case 2151, 132 (1995), L.Ed.2d 238 a decision point. illustrates the No disputes one that will doom the defense of immu Eighth existence of the right Amendment nity once and Hailing for all. this develop alleged; turns instead whether ment, do years let im undisputed facts disclose a violation of that munity jurisprudence, the actual text of right. If question, this central whether given Supreme explanation Court’s facts show a law, violation of established Pelletier, Behrens v. U.S. subject to immediate appeal, public (1996), 133 L.Ed.2d 773 official’s to appeal denials of way. stand Writing vein, in this immunity will be of less than little worth. dissent reads Johnson essentially destroy interlocutory appeals under Mitchell For regard Even without to any other syth, 105 S.Ct. 2806, decision, L.Ed.2d Court Johnson cannot be read as a majority opinion rightly rejection re of interlocutory review and a rever- gards important Johnson as an but limited sal of Mitchell Forsyth. Indeed, purposes “given” for identify facts which are premised was holding Johnson Court’s meaningless. See John becomes of review sufficiency” ques “evidence the fact — at —, son, 2159. The 115 S.Ct. at U.S. distinguishable from it was tion before will not be any legal proposition of relevance subject to interloc immunity issues — proposition facts to which until the Johnson, clear Mitchell. under utory appeal Inescapably, we apparent. applied become is at —, at 2156-58. 115 S.Ct. U.S. facts before we given say what must of language Johnson Furthermore, plain given or not certain can determine “whether of interlocu the destruction support does not ‘clearly estab of a violation showed facts The dissent. proposed tory review at —, 2155. at law.” Id. lished’ ruling Mitchell’s reaffirmed Johnson motion denying a defendant’s order its finding that an the facts irrelevant Despite immediately ap is case, the dissent analysis of the instant own ai*e length we great how next discusses ealable: purposes of public “given” offi- (1) identify facts [is] the defendant where Johnson, at least “qualified immu- review interlocutory under defense of asserting a cial district court failed (2) appealed eon- cases where the those the issue nity,” and it relied.1 In might facts on which parties forth the facts set eern[s], not which cases, appel rather, contemplates but, Johnson whether such prove, be able engage in “a may be forced courts late show[ ] facts violation given not certain the rec review of evidence-based detailed “clearly law. established” of at —, Ac at 2159. ord.” — at —, 2155. Johnson, 115 S.Ct. at U.S. this, insists we knowledging dissent under review authorized appellate The cases, in such but the record examine in involves two thus and Johnson Mitchell facts as our review identifies only insofar “clearly (1) estab constitutes quiries: what decision: support court’s which (2) “given facts” whether law, and lished” all, evidence, after of what a The best such See of law. a violation demonstrate “likely has assumed” district court Johnson, 88 F.3d McMillian court of what the predicate Cir.1996); Coun (11th v. Cleveland Shinault assumed, it should appeals believes Commissioners, F.3d County ty Board of legal determination court’s but Cir.1996). if And this 367, 370 (rightly or assume that on the facts did itself, clear, repeated the Court insufficiently wrongly) violation shown. Mitchell involved stating that “the example, appar we Following the dissent’s to a ‘clearly established’ law application any scrap of the record for ently are to comb undisputed) set (for purposes appellate given justify could trial court’s court’s evidence that facts,” finding that a district deliberately ignor immunity while facts violates denial given set of “that a conclusion suggest a con undisputed facts de is a “reviewable law” — but —, is not Johnson, trary conclusion. This “review” U.S. at termination.” courts will District complete waste time. (emphasis add factual basis for explaining the simply cease ed). immunity, ap denials their interpretation of in the dissent’s flaw The stamp left to pellate courts will be rubber from its conclusion is evident might as abolish We well conclusions. The flight from the facts. has taken the law they will be altogether as appeals Mitchell Eighth that Winfield’s concludes dissent appellate use precisely the “unwise come solely by “well-settled” Amendment trying that Johnson courts’ time” But if precedent. Circuit examining Fourth avoid. no appeals requires Mitchell the resolution at 2158. of abstract and incantation than the more thus stands The dissent Johnson’s ex- propositions, then settled of look- Instead on its head. process review courts are appellate how planation as to argument, the court confronts a purposes of facts of finally thus addresses dissent solely issue. case, conceding, reviewable after but ing at the to facts determine whether cific conduct right violated and denied violated, established law was we are to qualified as- him immunity. 107 sume that the law was violated and construct S.Ct. at 3039-40. “given” a set of support facts to that conclu- Supreme Court, The however, flatly reject Again, appellate sion. the role as envisioned ed the notion that a court can the address by the dissent is not to review district court issue of immunity without reference decisions but to rationalize them. The Court to given the particular of a case. The nothing Johnson said of the sort. When a Court held that right the the official is al district court has adequately set out the leged to have violated cannot be considered decision, factual basis for its our review of in the abstract but “must have ‘clearly been the necessity of record must be an indepen- established’ in a particularized, more one, dent and it is suggest incredible to hence more relevant, sense: The contours of we should do anything in undertaking it oth- the right must be sufficiently clear er apply than appropriate summary judg- reasonable official would understand that ment standards. what he is doing right.” violates that Id. at 640, S.Ct. at 107 3039. The Court thus not II. ed, simply “It does not follow immediately infirmity The of the analysis dissent’s of from the conclusion that it fairly was estab Johnson all is the more evident when consid lished that warrantless searches not sup ered of light prior subsequent prece ported by probable cause exigent cir dent. The dissent reads a virtual cumstances violate the Fourth Amendment warp, time completely disregarding the that Anderson’s search was objectively legal teaching Creighton, Anderson 483 U.S. ly 641, unreasonable.” Id. at 107 S.Ct. at 635, 3034, (1987), L.Ed.2d 523 3040. The recognized Court that if the ques relegating Pelletier, Behrens v. tion immunity could be resolved 834, (1996), L.Ed.2d regard without given facts, “[pjlaintiffs Supreme single explanation Court’s would able be to convert the rule of Johnson, to a footnote. immunity that our plainly cases establish into virtually rule of unqualified liability simply A. by alleging violation of extremely abstract The suggested dissent’s resolution of this rights. Harlow Fitzgerald, [v. case is a veritable replica Eighth Cir- (1982),] 73 L.Ed.2d 396 rejected cuit decision by the Supreme Court be guarantee transformed from a of immuni in Anderson. The dissent states that ty into a rule of pleading.” Id. at right “protected against physical harm S.Ct. at 3039. at the hands of fellow inmates resulting from The dissent deliberate or would hold callous pris- indifference of Johnson ac- complished very specific officials to known risks transformation that of such

harm” Seeking Anderson forbade. “well-settled” this to cut circuit at off inter- review, time locutory Winfield was phrases the dissent Having assaulted. right made observation, general terms so dissent our finds there review will always be complete, abe considering allegation without sufficient of a whether violation undisputed facts entitle the Every prisoner defendants to established law. qualified immunity. plaintiff Similarly, plead can Eighth an Eighth Amendment Circuit in Anderson right generic protection considered the against fellow If inmates. right “to be free such warrantless an abstract right iteration searches suf- of one’s home searching unless the fices to conclude officers interlocutory review in favor probable cause and exigent there are plaintiff, every district court denial Anderson, circumstances.” 640, qualified 483 U.S. at automatically will lead to 107 S.Ct. at Concluding that this trial. precludes thus possi- dissent “clearly established,” Eighth bility Circuit undisputed particular facts in the refused to consider whether spe- Anderson’s justify case will an immunity. award of defense, good.” mine whether B. Romero, 520-21 F.3d Anderson Supreme heed to no more pays The dissent Cir.1995). than it subsequent to Johnson caselaw Court prior precedent facts are material Similarly, does where Behrens, sin Supreme Court’s determina appellate court’s Johnson.' undisputed, date, relegat of Johnson explication entitled gle officers that the defendant tion repre footnote, because it perhaps any require to a immunity ed does not qualified to part the attempt on vain apparently an Appellate sents courts reweighing of evidence. the precisely to foreclose Supreme Court of the genuinely disputed may determine whether pro over-reading of Johnson of the sort trespassing the without are material facts holding of The main by the dissent. posed Materiality a “is court’s domain. trial officers enti

Behrens, all, public is that after disputes ... categorizing factual for criterion bring immunity may qualified to claim tled evidentiary evaluating the for a criterion not interlocutory appeals on but two not one Anderson disputes.” of those underpinnings — at —, 116 immunity, U.S. question of 242, 248, 106 S.Ct. Liberty Lobby, 477 U.S. v. of a Court hardly the action at Unlike 91 L.Ed.2d has termed 'the dissent on what intent materiality there genuineness, issue of appeals. of such curtailment” “dramatic sufficiency of evi consider the does not fore legal only fact’s exist, a fact but supporting Behrens dence contested Even where the out relevance, “might it affect remain legal issues whether purely indicates law.” governing while can consider the suit under court of appellate come which an facts, undisputed courts material reserved trial Given the role respecting judgment summary “purely is only remaining issue “Denial of by Johnson. ac that there the defendant’s whether a determination determination” often includes fact, reasonable, and in objectively of material which tions were controverted every surely preclude appellate not mean that does not “Johnson does Johnson case nonap Miller, summary judgment is 66 F.3d of v. jurisdiction.” such denial Lennon — —, Behrens, Cir.1995). at (2d U.S. pealable.” reviewing an interlocu When at case, opinion majority the instant In Mitchell, to pursuant tory appeal finds that the defendants appropriately thus a district to reconsider us instructs immunity based on qualified entitled were judgment order summary “insofar court’s notably, facts. Most undisputed material not the whether or determines that order get by the finds that Gibson had court ’genuine’ forth sets pretrial record in attack guard Williams order unarmed fact for trial.” the defen- It inconceivable that is Winfield. second- are not to 2159. We at deliberately to a situa- indifferent dants questions “evidence guess court a trial risk, a at placed one of themselves tion which id. at sufficiency.” See injury resulted fact risk raised, sufficiency question 2156. No Williams.2 however, court appellate finds when to embrace have declined Other circuits qualified immuni is entitled defendant appellate role constriction of the dissent’s facts. version of the ty plaintiff’s even on the immunity. Prosser enforcing noted, there has “If As the Circuit Seventh (8th Cir.1995), Ross, 70 F.3d v. dis [factual] of the possible no resolution a deni- reversed example, the Circuit Eighth plaintiffs save the agreement that would that is the immunity in a case al of immunity, ap defense case Prosser, an image of this one. mirror virtual have to resolve pellate will Ross, prison inmate, complained that deter- order to disagreements ... factual undisputed facts rested on in Gooden opinion similarly dissenting misconstrues 2. The (4th perceived at the regarding time officers what the County, 954 F.2d Gooden Howard objective reasonableness (en banc), implies the incident Cir.1992) extent that to the it per- light undisputed actions in of those of ceptions. with Johnson is inconsistent Gooden case, See id. 964-66. grant of Behrens. As in guard, prevent respond prop- had failed to ness of the defendants’ actions under undis- erly him facts”); to an attack on a fellow inmate. puted Nichols, 62 F.3d Sanderfer stated, explana- The district court without Cir.1995) 153 n. (awarding immu- tion, that there were issues material fact nity finding that Johnson allows immedi- precluded granting summary judg- plaintiffs ate review because “the version of itself, ment. Forced to review the record events, regardless of sufficiency Eighth jurisdiction Circuit held that had evidence, supporting does not state a claim under Johnson to consider Ross’ interlocu- violation”). a[ ] [constitutional] tory appeal required because “the facts All of these circuit decisions followed John- quali- determine whether Ross is entitled All son. of them interlocutory ap- involved genuinely dispute.” fied are not peals, all resulted in reversal of a district Id. at 1006-07. Based on the facts that the court’s immunity. denial of armed, assailant was that the armed attack report dissent’s of the death alone, unexpected, that Ross was and review appear would thus to greatly exag- be immediately help, that he sought the court gerated, premature. not to mention As these responded found that had reasonably Ross illustrate, adopt cases to posi- the dissent’s expected prevent and could not have been to place tion would virtually the Fourth alone the assault. among the refusing circuits in to consider ap- Other circuits have taken a similar given whether facts constitute a violation of proach appeals to Mitchell and have not hesi- clearly established law. to application tated correct the erroneous of immunity doctrine where the material facts III. undisputed were or where the defendant was Only by ignoring importance of inter immunity plaintiffs entitled to even locutory appeals vitality of Holston, Foy account of events. See v. 94 immunity can the dissent read Johnson as a (11th Cir.1996) 1528, (award- F.3d 1531 n. 3 dramatic curtailment of Mitchell. The dis ing qualified immunity finding and that John- although sent tells us that interpretation son allows immediate review to consider of Johnson “will sometimes force to trial “whether, taking light the facts in the most who, public officials applica under a correct plaintiffs, clearly favorable to the established qualified immunity tion of doctrine should violated”); rights federal v. Osolinski trial,” put not be “simply this concern (9th Kane, Cir.1996) (award- 934, 92 F.3d 936 yield ‘competing must considerations’ of ing immunity finding and that Johnson al- ‘delay, comparative expertise ap of trial and appeal lows immediate review when the con- courts, pellate appellate and wise use of re given cerns “whether certain show — (Quoting sources.’” U.S. at law”); violation of Cantu —, 2158.) Application 115 S.Ct. at Rocha, 795, Cir.1996) 77 F.3d 802 however, given facts, doctrine appel is an (awarding immunity finding and that John- comparative late expertise. court’s area son allows immediate review when the already And Mitchell has determined that concerns “whether an official’s conduct interlocutory misapplication review to correct objectively in light reasonable immunity principles does constitute a light given established law” in “aof .set appellate “wise use of facts”); Romero, resources.” Mitchell 518, Anderson v. 72 F.3d (7th Cir.1995) any delay likewise indicated that caused (partially awarding 520 quali- interlocutory necessary immunity give review finding fied that Johnson al- meaning Supreme to' the Court’s constant lows immediate possi- “[i]f review there is no ble admonition “insubstantial claims should disagreement resolution the [factual] Harlow, proceed plaintiffs to trial.” would save the case from 457 U.S. at 816, 2737; Behrens, Miller, immunity”); defense of 102 S.Ct. at see Lennon v. 66 also (2d 416, Cir.1995) 838; (awarding F.3d 422 immu- U.S. 116 S.Ct. at Hunter v. nity 224, 227, 536, finding Bryant, 534, that Johnson allows 502 U.S. 112 immedi- (1991); Reed, appeal “poses only ate review where an 116 L.Ed.2d 589 Burns v. 500 legal question objective 478, 8, 1934, 8, about the reasonable- 494 n. 111 U.S. 1944 n. Anderson, (1991); construing In- 483 U.S. thus eviscerate L.Ed.2d interlocutory appeals, engages in 2; the dissent 2, Malley v. at 3039 n. n. 107 S.Ct.

at 640 wholesale substitution of its own views 335, 341, 1092, 106 S.Ct. Briggs, 475 teaching Supreme pre- the insistent Mitchell, (1986); L.Ed.2d 271 simply projects The dissent onto cedent. 2815-16; Davis 105 S.Ct. U.S. at competing balance of the Johnson its own Scherer, 468 U.S. Finding at stake. official accounta- interests (1984); Butz v. Eco L.Ed.2d 139 bility judiciary to be of much to the federal 478, 507-08, nomou, greater importance than the societal costs of 2911-12, L.Ed.2d 895 lawsuits, quali- the dissent treats meritless acknowledges that there the dissent Even immunity nothing than a fied more “mere so, trial of meritless suits permitting liability.” Having is a cost done it defense to officers, such significance but insists that against public places ap- little readily “competing “simply peals be tolerated.” The dis concludes that must costs support the virtual elimina- significance of interlocu considerations” trivializes sent rejec- us, appeals. Seeking tion to make of such assuring occasional tory appeals, “When unreviewable, tions of defenses occur, forcing un its effect—of error does dissenting opinion simply ignores the fact there; exhausted the er trial—is warranted long spo- that the Court has since may yet correct immunized ror ken on the balance between the relevant appeal, liability on later with ed at trial or interests, and that we are not free to revisit very Mitchell held the thereby avoided.” position might question. The dissent’s immunity “is an im opposite: appropriate argu- have been for an advocate than a munity suit rather mere defense from Mitchell, only at late date it is but immunity, it liability; and like an absolute Mitchell, argument overruling which the erroneously effectively if a case is is lost Supreme Court has not seen fit to do. Mitchell, go to trial.” 472 U.S. permitted to added); 526, (emphasis at 2815 at 105 S.Ct. IV. County v. Chambers Commis accord Swint —sion, , — , 1203, 115 S.Ct. U.S. Interlocutory appeals of immuni- (1995); 1208, Digital Equip L.Ed.2d 60 131 ty critical denials serve several functions. Direct, Inc., Corp. Desktop 511 ment U.S. They draw the line of demarcation between 1992, 1997, 863, 870, 114 S.Ct. 128 L.Ed.2d objectively reasonable exercise of official (1994); Aqueduct and 842 Puerto Rico Sewer on the discretion one hand and the violation Inc., Eddy, Authority rights & 506 U.S. of on the other. Metcalf trial, 684, 687-88, By requiring prior they 139, 144, 121 review also 113 S.Ct. L.Ed.2d Cole, 158, 166, check on (1993); constitute a the reflexive resort to Wyatt v. 504 U.S. 605 eventually 1832, (1992); trials that would erode the 1827, exer- 112 L.Ed.2d 504 118 nullify quali- 536; cise official discretion and Hunter, 227, at 112 502 U.S. S.Ct. at immunity fied defense. 226, 232-33, Gilley, Siegert v. 500 U.S. 1789, 1793-94, (1991); 114 L.Ed.2d 277 is at Discretion thus the core what the Chasser, 495,

Lauro Lines s.r.l. v. 490 U.S. interlocutory appeal protects. Not absolute 499-500, 1976, 1978-79, 104 109 S.Ct. limited, qualified discretion—but latitude (1989); Cauwenberghe L.Ed.2d 548 Van v. making judgments. If we are have few Biard, 517, 521, 486 U.S. 108 S.Ct. trials, interlocutory appeals many and 100 L.Ed.2d The dissent expansion litigation drastic will mean the post-trial appellate us that review assures equally drastic constriction of discretion. defects, can cure but Mitchell authorized teacher, every parent, occupation—be Yet interlocutory appeals precisely “[a] because executive, corporate county clerk—de- deny qualified district court’s decision [to mands exercise of channeled discretion. immunity] effectively ap unreviewable on exception. Law enforcement is no Officers Mitchell, peal judgment.” “routinely a final from make close decisions the exer- 527, 105 necessarily authority that U.S. at S.Ct. at 2816. cise of the broad Davis, (1975) (threat delegated to them.” 468 U.S. at 43 L.Ed.2d 214 involving public liability “undoubtedly 104 S.Ct. at 3020. Decisions will deter even the likely than order “are more not to arise an most conscientious school decisionmaker confusion, atmosphere ambiguity, exercising his ... in a man- events,” Rhodes, swiftly moving Scheuer v. serving long-term ner best interest of the 232, 246-47, 1683, 1691-92, students”). all, school and the After (1974), applica- 40 L.Ed.2d 90 and involve the safest course is not to exercise one’s discre- notoriously tion, tion of standards that are but not Doing nothing to act at all. imprecise, “probable may such as cause” and “ex- protect peace, enforce the law or jurists; cessive force.” Officers are assuredly but it most will minimize an offi- swiftly firmly act “must often at the risk cer’s of becoming chances a section 1983 that action deferred will be futile or consti- defendant.3 tute a virtual abdication of office.” Id. at If interlocutory review of denials many 1691. Like executive longer possible, is no then extended discov- officials, law enforcement officers thus are ery and trials of law enforcement actions will upon “called to act under circumstances way litigation become a of life. Yet is decid- judgments

where are tentative and an unam- edly not what law enforcement officers do for biguously optimal course of action can be living. Time court is time off the street. Butz, retrospect.” ascertained. persons Whatever incentives attract n. 98 S.Ct. at n. 28. profession the law enforcement cannot in- conditions, Under such even an official of prospect every clude the step one takes highest integrity competence will may policeman’s nightmare turn into a and a occasionally protection err. Without the litigator’s dream. by qualified immunity discretion afforded Perhaps fearing arbitrary exercise of “ review, every mistake ‘ex- discretion, pursues the dissent an ideal that poses] honestly such [officers] have been exist, will never frequent one where trials by anyone mistaken to suit who has suffered police-citizen every encounters will sustain Matteo, from their errors.’” Barr v. 360 conduct, proper instance of official while ex- 1335, 1339, U.S. 79 S.Ct. 3 L.Ed.2d cising surgical every precision with mistake. (1959) Biddle, (quoting Gregoire 1434 v. 177 ever-receding This vision exists on an hori- (2d Cir.1949)). 579, F.2d 581 Public officers zon. The rule of law will not flourish without targets are irresistible for meritless lawsuits. enforcement, and, the aid of law until men Butz, at See 438 U.S. 98 S.Ct. at angels, discretionary become actions 2912-13; Pachtman, 409, Imbler v. 424 U.S. accompanied by will be mistakes. But au- 425, 984, 992-93, 96 S.Ct. 47 L.Ed.2d 128 thority position continually having in the through From detention incarcera- justify itself will not be able to assert tion, nearly every type of law enforcement dissenting position If itself. becomes the action is almost certain to invoke the ire law, perfect the search for the will have subject, providing a constant stream of lasting enemy good. become the potential plaintiffs recurring with motives pyre litigation, sue. Onto this the dissent RUSSELL, WIDENER, Judges yet fuel, pours discarding more one of the say they HAMILTON authorize me to litigious few deterrents action that still join opinion. in this exists. MOTZ, Judge, DIANA GRIBBON Circuit The order that the dissent would concurring: rendering construct risks law enforcement Judge officers fearful of I in in so lawsuits that will concur simply protecting public. opinion cease Wood Wilkins’ careful and narrow Cf. Strickland, 308, 319-20, course, majority recognize v. 95 of the court. I S.Ct. Of suggest, against 3. As the circumstances of this case inac- constant trials in the absence of interloc- against suit, tion is not an ironclad defense but it review. utory will remain an most official's secure protection 542 is, Phillips’ premise I believe not warranted—I would holding Judge

that the court’s demonstrates, ruling. in affirm the well thoughtful dissent in principles set forth some tension with — I Pelletier, U.S. —, Behrens v. (1996) v. 834, 773 and Johnson L.Ed.2d get To at the difference our understand- — 2151, —,

Jones, U.S. Johnson, my by laying I out ings of start (1995). However, I cannot con L.Ed.2d 238 holding understanding of its and of its more here, when, as a district court does clude that important implications for this case. adequately set forth the facts finds that we dispute, Court intended A. “likely the facts the district determine Johnson was taken for review the Su by examining, in the other than assumed” specifically clarify that preme Court plaintiff, the fac light most favorable to the Forsyth, which Mitchell U.S. and then before the district court tual record (1985), 86 L.Ed.2d 411 had held forth a viola determining if those facts set immediately reviewable law. tion of denying appeal from district court orders qualified im motions on separately simply to note that I write munity grounds. required Clarification have no occasion to reach this case we circuits—including some this one— because liberty are also at question of whether we had misunderstood Mitchell on this critical approach when the district court follow this — Johnson, point. See U.S. it finds in adequately set forth the facts has alia, (citing, S.Ct. at 2154 inter Turner is, case, dispute. That in this more usual do Dammon, Cir.1988), 848 F.2d beyond jurisdiction go the district we have among reflecting cases erroneous view of plumb holding and court’s jurisdiction). judgment record to make our own assess- facts, material taken ment as to what are the point The basic clarification clear. light plaintiff, for the or are we only immediately the best reviewable determina upon by (or facts relied the district constituting limited to the tion embodied the sole for) court. Behrens and Johnson would seem “purely legal such basis an order is the accept one,” must the facts as relied hold that we see However, upon by court. resolu- if the facts were as the day. must await question tion of that another district court assumed them to be sum

mary judgment purposes, defendant’s con duct would have violated a then estab PHILLIPS, Judge, Senior Circuit (or statutory) right of lished constitutional dissenting: plaintiff in of which a reasonable official de fundamentally position I with the en banc fendant’s would known. Id. differ — at —, majority’s apparent understanding of what 115 at U.S. S.Ct. 2155- — Jones, U.S. —, immediately 2156. Not “fact- Johnson v. 115 S.Ct. reviewable are (1995), related,” 2151, at —, 2153, 132 238 has L.Ed.2d instructed id. 115 S.Ct. at deter (or jurisdiction scope constituting us on of our in to review minations embodied for) denial, denying orders motions sole basis issues summary judgment respecting qualified § im 1983 defendants for on of material fact immunity qualified grounds. my munity prevent grant of sum On differ defense at —, understanding application jur mary judgment. ent and of the Id. 115 S.Ct. decision, principles isdictional of that I would at 2156-2158. The reasons for the reviewa appeal in hold that because this seeks distinction are found ble/not-reviewable fact-related, challenge evidence-sufficiency collateral doctrine of v. Ben order Cohen 541, Corp., determination it should be dismissed. Alter Indus. Loan 337 U.S. 69 eficial 1221, (1949), natively, upon if it be considered that 93 L.Ed. 1528 S.Ct. based, principally sep in challenge purely legal seeks also to Mitchell is Cohen’s deter legal” properly presented arability requirement: “purely mination is- for our review—

543 in both and factual elements this de of the from the merits separable sue is fense-principle: purely legal respect claim; issues issue inevita § the “fact-related” 1983 particular law at a the state of the time with the merits bly intertwined will be respecting at —, and factual the circum at 2156 S.Ct. some extent. charged issue); (“evidence-insufficiency” stances under which the conduct (legal occurred, issue).1 such as whether the defendant was way charged;

involved at all or the critical exigencies affecting the whether there were B. objective reasonableness of the conduct types of deter How do these two different Anderson, 641, charged, 483 U.S. at etc. See emerge litigation process mination (actual pos information 107 S.Ct. at 3039-40 jurisdiction this critical provide the basis for 350, sessed); Malley Briggs, 475 U.S. can best be found al distinction? The answer 89 L.Ed.2d 271 106 S.Ct. elements by keeping in mind substantive (1986) (Powell, J., concurring dissenting) immunity defense affirmative circumstance). (exigencies of time and processes of tracing out the adversarial invoking the by which A defendant defense presentation and default party summary judg may put in issue and district court motion those elements may on trial ment therefore base his motion ei from issue at the withheld or removed factual, grounds. purely legal, sub ther or or both appellate Recall first the levels. — Johnson, at —, immunity See U.S. anatomy of the stantive grounds (pointing out that motion’s an affirmative defense—in the defense. It is denial). identify serve to basis for its His mode as re same confession-and-avoidance may, example, solely lease, like— motion be rested satisfaction and the accord and following posi or more of some variant of the simple than a denial of one rather factual (1) (or assuming conceding) that the § claim. tions: elements of the' the essential charged if to me would constitute a immunity principle that even conduct It invokes (which clearly-established ordinarily violation of constitutional § 1983 claim has merit (the etc., denied) de right, I didn’t do is not liable and the defendant will be (or (2) fense); conceding) assuming right may put to trial because the not be charged to me did violate the the conduct was not one so es allegedly violated charged right alleged, the factual circumstances conduct at the time of the tablished misappre that I acted under reasonable official such the defendant that a reasonable not do so. See it would have known that the con hension position his Anderson, 6,n. at 646-47 right. Har charged would violate duct 818, 102 positions present 6. Both of these at 3042 n. Fitzgerald, low immunity grounds for the de- only factual There are 73 L.Ed.2d 396 ——, mination), U.S. at problem making see possible 1. A semantical required conceptual "purely legal” be noted. distinction should determinations S.Ct. at shown). assumed, motions (that of the issues that can be raised Both for grounds—whether a violation on facts particu That id. See assumed, facts, show a "legal as not be so "fact-related” lar issues" clearly-established of which a of a violation particular procedur "pure” legal for to be issues position in defendant's would reasonable official general proposition that has purposes a al is known, genuine is- and whether there are See, e.g. recognized in other contexts. been Grif respecting for a factual basis sues of material fact 58-59, States, 46, 112 S.Ct. 502 U.S. v. United fin issues of whose resolutions the defense—are law (1991) (insufficién- 466, 473-74, 116 L.Ed.2d 371 require See determinations "as matter law.” cy on one of alternative of evidence to convict 9, Mitchell, U.S. at 528 n. 105 S.Ct. at ground vacatur of for factual theories is shown); (whether n. 9 violation Anderson guilt ground general other is verdict of where 3034, 635, 641, Creighton, 3039-40, 107 S.Ct. 483 U.S. error,” "legal though technically a supported; (1987) (whether genu- L.Ed.2d 523 insufficiency con a "mistake evidence involves exist). required ine issues of material fact distinction, import cerning weight of evi or the factual therefore, is not between determina- "legal error” the kind of dence" that is not "as a matter fact” and determinations tions "of would it, concerning law” that law,” but, a "mistake about the put Court between "fact- as the vacatur). (the require genuine-issue deter- determinations related” c. legal issue has been raised fense; purely no court, potential hence none is a in the district But, recognized in as Johnson Court Whether sum appellate review. for cogent arguments making responding to granted depends be judgment should mary required jurisdictional fre distinction genuine is there are entirely upon whether difficult, quently conceptually too or would be ground of defense respecting sues of fact subject manipulation, or too party too (“didn’t it,” “reasonably un or mistaken do subject uninformative district court rec circumstances”), deny and decision der ords, at-, necessarily only at judgment rests see id. 115 S.Ct. ing summary is 2158-2159, there are such things get compli on a determination can much more sues, i.e., forecast of that the non-movant’s jurisdictional purposes. This is cated is sufficient to hold the opposing evidence likely to occur where a defendant has most If at issue. the defendant factual defense purely legal rested his motion on both order, appeal such a denial attempts to then grounds in court. fact-related dismissed, appeal as necessari should example, by contending in his motion For only “fact-related” ly seeking review (4) both, alternatively, assuming order’s sole basis. which is the determination charged charged, to me did occur as conduct case, jurisdic type “simple” is the This clearly- it not constitute violation of a would example by represented for purposes, tional and, right, (purely legal) etc. Johnson, Johnson itself. See event, any way, it did not occur but —, —, (fact- I while was absent from the scene hand, motion other a defendant’s On the related). cleanly Whether or not reflected in legal” solely “purely on the be rested record, every denial of such a two- would, example, if it took the issue. It must, pronged conceptual motion as a mat (3) (or conceding) that position assuming ter, con involve determinations both that the charged to me did occur as the conduct charged duct as did violate a estab charged, it not constitute the violation of did right, lished etc. and that established constitutional then respecting material fact the defendant’s as Mitchell, right. See prevented from the serted absence scene (1985) (only 86 L.Ed.2d granting summary judgment ground. “question whether issue would then be And, involves, necessarily because whether acted”). open This at the time the officer stated, expressly purely legal or not de issue, presents and a denial no “fact-related” termination, order, per such an district court (reviewable) “appealable” “to extent.” [that] necessarily on a determina- rest at —, (quoting 115 S.Ct. at 2156 Mitch tion that as a matter of law the conduct ell, 2817). 472 U.S. at 105 S.Ct. at assumed did constitute violation or conceded (re “appealable”- that it Which means right, of a etc. An well-established viewable) fact-related, respect with to the from this thus lies for review of the order determination, genuine issue as a mat either “purely legal” determination which necessari- or, primary except perhaps excep ter of ly This, too, is the sole basis for the denial. cases, jurisdiction. jurisdiction- pendent id. at “simple making is a tional See case” for —, al 115 S.Ct. at 2159.2 distinction. Pelletier, appealable

2. Behrens v. denial order was not in event (1996), provides an inter expressly 133 L.Ed.2d 773 under Johnson because it was based esting example a case treated the Su on a determination that issues of "[m]aterial preme involving alternatively such an (in fact remain.” Id. 116 S.Ct. at 842 dually-based based motion deni and therefore so, omitted). quotation ternal marks Not said Though principally al order. concerned with summary judg the Behrens Court: "denial of public could whether under officials Mitchell a that there ment often includes determination 12(b)(6) successively appeal motions denials of ”, tire id., issues of material fact ... controverted summary to dismiss and Rule 56 motions for where, but this does not mean that as in the judgment qualified immunity grounds, hand, “necessarily case at the denial also deter respondent’s Court had also to deal al with peti- attributed to mined that certain conduct ternative contention that the pretrial determines whether or not the D. rec- ‘genuine’ ord sets forth a issue of fact for point about the Everything said to trial”) (emphasis supplied). (immediate reviewability) of appealability Though, expressly as the Johnson Court immunity under qualified denials Johnson noted, disallowing interlocutory review of er proper- will assumed that the defendant has genuine-issue roneous determinations will appeal’s power ly have invoked the court of deprive pre-trial sometimes officials of the says may which it to review that qualified trial-avoidance benefits of im (nor purport review. But Johnson does entitled, munity juris to which any decision of does other limitations on Cohen collateral order aware) dictional I to alter for which am power compel that review result. See id. at party immunity eases the normal rules of potential- of issues presentation default Therefore, ly subject appellate review. F.

notwithstanding appealability under any legal purely Mitchell and Johnson however, Assuming, purely legal that a im- in a determination embodied properly presented determination is for re- denial, munity/summary judgment reviewa- view, exactly specif- what is reviewed? More bility particular an in a case of such order ically, appeals accept does the court of yet depends upon having the defendant’s district court’s identification of the factual properly it in district court and raised predicate legal for that court’s determination preserved it for review under the relevant and, it,- accepting only resulting review procedural appellate trial and default rules. “purely” legal may determination? Or (contemporaneous E.g., Fed.R.Civ.P. 46 ob- appeals court of review for error in the dis- 28(b) 28(a)(2), rule); jection Fed.R.App.P. pred- trict court’s identification of the factual (issues review must identified in it icate that assumed for brief). example, purposes? suppose For expressly

court identifies as the facts it as- E. summary judgment purposes sumed for defendant, prison guard, deliberately a appears it This all means when notify failed for twelve hours to an available defendant-appellant that a is seek the record prison plaintiff-inmate doctor had a that there are review of determination leg. May suffered broken the court respecting issues of material fact whether, appeals than do more consider ground factual of his de predicate, that factual there would have been (“didn’t it”; “reasonably fense do mistaken clearly Eighth a violation of established it”) motion, doing require of his denial rights of offi- Amendment which reasonable may appellate not address to position cial in defendant’s would have of that determination. extent the correctness it, reject example, known? Could it, jurisdiction having Not to review the court predicate, legal factual hence the determina- if, dismiss the John tion, summary judg- on the basis that under son, genuine-issue is the determination rightly procedure applied ment it was undis- Tabb, denial, sole for the see Finelli v. basis given puted that notice was within three Cir.1995) (so holding), or 67 F.3d 67 knowledge? minutes of actual order is decline to review when the denial severe, purely legal Though consequence may upon both a reviewable seem based genu plain. answer is Review is con- determination and the non-reviewable Johnson’s whether, “purely” legal fined to the ine-issue determination. See (no predi- jurisdic accepting the district court’s factual cate, law as that order a violation of established tion to review order “insofar controverted) (which appeals' then reversed the court of dismissal tioner constituted law," violation of the latter review and remanded to that court to undertake appealable. also is not Id. It is determination purely determination. Court, appealable under Johnson said the appears stating This in vari- the facts it has assumed so that this would have occurred. explanation why sought by in ways appeals in the Court’s of must be the court of “a ous confined, record,” in faithfulness to cumbersome review of the review must be only jurisdictional limitations search still is for “what facts the district Cohen’s court, appellate light of trial and func- in the most proper allocation favorable (em- assumed,” tions, legal nonmoving party likely purely determinations rested id. predicates. phasis supplied), not upon factual for what it should have assumed assumed.3 off, juris emphasized the First the Court actually in compulsion to confine review this Can the Court have intended in dictional terlocutory Interlocutory appeals of im in way. review be limited this fur denials, is, judgment way—that munity/summary genuine- said the ther in to the addition rule, Court, consequence the final “if serve issue limitation? The will be an best presenting inability appeals to cases neat of courts of to correct mani limited [are] —, of law.” Id. at 115 fest district court in identifying abstract error (quoting Wright properly 15A at 2158 & Miller to be assumed for 664). 3914.10, evident, legal judgment purposes, § resulting As is in error denying quali can be addressed as “abstract” a defendant’s entitlement one if its resolution does involve review fied of trial. advance This is by appeals predicates consequence, of the factual courts of serious but it is no one more upon purposes district court made its inimical which the deter to the of immuni ty inability This is borne out than mination. Johnson’s is the clear of courts of appeal appeals—under discussion of how courts of are to Johnson—even to address identify predicates factual making the district manifest district court error “evi And, purely dence-sufficiency” determinations when courts’ determinations.4 as “simply deny summary out, judg pointed courts those Johnson Court the fact that indicating jurisdictional ment without reasons for do that flat limitation will some —, who, so.” Id. at 115 S.Ct. at 2159. public times force to trial officials under done, Court, Easily application qualified immunity said when a correct of expressly trial, has put the district court “stated” the doctrine should not simply denying yield “competing facts it has assumed the motion. must considerations” of situation, Court, “delay, said the comparative expertise “the court of trial and take, simply courts, appeals given, appellate can appellate the facts and wise use of assumed,” that the district court and assume resources.” 115 S.Ct. at 2158. words, of facts” “when it the same “set answers the In other occasional district court er purely legal question ‘clearly denying summary about estab ror in judgment either on And, grounds lished’ law.” Id. where the that there are issues of performed helpful respecting ground court has task of fact a factual Conceptually, "pure" question into abstraction law oc forbids. To ask the what facts the dis- process taking “given” curs in the as a or as determining trict court should have assumed in "undisputed" appellate purposes" "for the facts whether, applying stan- by predicates assumed the district court as for its dard, they showed a violation of estab- legal determination. See U.S. at lished of which a reasonable official in —, 2159; S.Ct. at see also known, position defendant's would have is indis- Behrens, — U.S. at —, (pub 116 S.Ct. at 842 tinguishable practical process effect lic "claim on official all of the were, asking whether there as determined conduct which the District Court deemed suffi court, genuine respect- issues of fact ciently supported purposes summary judg ing whether under the circumstances reason- 'objective legal ment met the Harlow standard of reasonableness'") position able official in defendant’s would have added). (emphasis known that his conduct would violate the demonstrate, 4. As a reflection will moment’s if de right. claimed novo review of the district court's identification exactly by It is this back-door route that I predicates purely legal for its the factual deter- majority effectively believe the in this case has precluded, appeals mination is not courts can genuine-issue effectively engage conducted the de novo very review for- means in the II.B., evidence-sufficiency directly post. review that Johnson bidden Johnson. See Part (“didn’t stage deprive public it” or ment and so will some do “reason- immunity defense mistaken”) of the trial identifying the factual official defendants avoidance ben or in ably ground qualified immunity efits to purely legal of de- entitled predicate for (“facts This, however, is a risk of don’t constitute viola- them. which the assumed fense right”), expressly constitutional Johnson Court was aware and tion of well-established must, countervailing thought compelled by consider- which it in deference nevertheless ations, simply jurisdictional be tolerated. constraints on collateral order judi by prudent review and considerations

G. Johnson, cial administration. See at —, 115 S.Ct. at 2158. sum, having In I as confined read Johnson interlocutory appellate review of district put in perspective, To those risks two summary denying motions for court orders (1) points practical should be noted. immunity grounds to a judgment on abrogate only but effect not to to allocate narrow, “pure” law: “abstract” issue responsibility to the district courts final “tak[ing] given” as the facts as whether pre-trial two fact-related determinations in (rightly wrongly) by the district sumed or qualified immunity applications; in errors court, id. those those determinations will—as in all mat- facts show a violation of established exception ters—be rather than a the rare law, interlocutory This means that re etc. (2) frequent in occurrence those courts'. (1) respect is not available with either view occur, When occasional error does its ef- determinations district courts there forcing fect—of unwarranted trial—is ex- respecting fact genuine issues of material there; hausted the error is not immunized ground which re a factual for the defense may yet be corrected at trial or on later (2) quire determinations the denial liability thereby appeal, with avoided. courts of those that are to be district event, as I its fun- understand assumed, purposes, point game—of that the damental labori- deciding in whether show a violation of interlocutory simply ous evidence review—is right of which a reason identifying not worth the candle—of and cor- position would able official defendant’s recting the occasional district court error have known. identifying genuine occur will both curtailment of the This involves a dramatic respecting grounds factual issues of fact interlocutory scope of review' which was identifying factual the defense and other—circuits thought proper this—and predicates for denials of clarification of Mitchell. before Johnson’s purely legal grounds. understanding, plainly revealed in our Our “fact-related,” cases, genuine II purely legal deter-

determinations as well minations were reviewable understanding of On this Johnson See, e.g., appeals of under Mitchell. case, implications I would dismiss for this Cir.1988) Turner, (4th (juris- 848 F.2d at appeal appellants’ that the on the basis assumed to conduct de novo record diction seeks review of the district review of district court’s determination unappealable fact-related determina- court’s genuine respecting fact factual issues of of material tion that there are precluded grant quali- grounds of defense happened,” respecting fact “what hence motion; court af- fied objective reasonableness of their conduct. firmed); County, v. Howard Gooden Cir.1992) (en banc) F.2d 965-966 however, purposes of this Assuming, reversed). (same; district court majority has con- case that somehow—as the appeal properly presents for our scope cluded—the The more limited of review mandat- necessarily court determination will allow district review district ed as- on the facts purely determina- issue—whether court errors these fact-related law, clearly-established summary judg- sumed a violation of go tions to undetected at the affirm that deter- defense was therefore not rested on the etc., shown—I assuming purely legal ground that the con- mination. occurred, charged duct to them it would not in order. I take these clearly that es- have constituted a violation of Instead, right. rested on tablished purely ground the factual that “the facts do A. here;” that on the give us such a case reading any fair of the record this On supporting “actual” facts as in their asserted case, only determination the district the affidavits, their conduct could not have con- appellants sought “appeal” court that have acknowledged right violation of stituted the that fact-related determination there is the requisite it lacked the deliberate in- because respect- genuine issues of material fact difference. See id. This is a factual defense happened,” hence whether what “what essentially indistinguishable simple from the happened involved their violation of a there, it” “weren’t didn’t do factual defense right, that so that was raised as the sole basis for the inappropriate. Johnson,5 Part I.B. officers’ motion See ante. that, we should start with To demonstrate summary judg- motion for appellants’ opinion denying The district court’s supported in made and ment as motion, two-pronged though helpful not as motion, I.B. court. Part ante. that See purposes making for of distinc- sought dismissal both on the merits wish,6 might plain enough tion as we immunity grounds, qualified ap- and on purposes. our The court’s memorandum not, record, I pellant-officers did as read the opinion rulings conflated its on the merits actually contend that as a matter of law qualified immunity grounds and of the mo- complaint allege did not a violation Winfield’s defense, tion. As to the merits which was nor, right, alternatively, of constitutional essentially rested on the same factual “no allegedly right violated was not then grounds deliberate indifference” as was the Instead, as shown in established. defense, qualified immunity the court ex- papers, they effectively their motion con- pressly concluded that “there are such ceded that under decisions of this court “[ijndeed fact,” issues of ... material Hutto, Pressly 816 F.2d peculiarly fact-specific this case is and should Cir.1987), right asserted Winfield proceed to trial on the merits.” J.A. 80. “protected against physical to be convicts Specifically addressing immu- resulting

harm at the hands fellow inmates defense, nity opined or callous the court then the deliberate indifference of prison specific officials to known risks of constitutional asserted in Winfield’s complaint responsive such harm” was then well-settled in this cir- affidavit was—as qualified immunity appellants effectively cuit. 72. Their J.A. had conceded—well- Though qualified immunity grounds. 5. a factual defense of this sort—"didn’t tions on Under our it," requisite intent"—goes scope do “didn't have the regime, or unrestricted of review we had no claim, § as assertion, to the merits of a well occasion to differentiate between the fact-related qualified immunity as the basis for dis purely legal grounds denying of orders sum- conceptually practically missal is both sound and mary judgment, litigants and district courts provides warranted. And it course the most properly compulsion help therefore felt us no example complete intertwining/hence of an in respect. in that interlocutoiy separability purposes, review ; by majori- we deal in That this case—deemed the merits and claim on immu ty sufficiently important for en — U.S. at —, —, nity defense. See imprecise banc consideration—with such an rec- 2158. suggest improvidence ord well of that cases, sense, implied 6. with no decision. Hard in the substantive Which is said criticism of the law, tempt may poorly pre-Johnson prece- court. Under this court's dents, courts to make bad and so records, litigants developed particularly neither those created un- nor courts were procedural regime longer special precision on notice der a need for which no con- making ruling appeal. mo- trols on But—here we are. appeal—absent to -review on not entitled assault.7 J.A. the time settled proper- extraordinary circumstances—unless determined, ruling already Having genuine is defense, review. ly presented there were our merits hap “what respecting fact of material sues jurisdictional step To take the next expressly reiterate did the court pened,” from the must then determine inquiry we respect to the with conclusion appellants what record But it is manifest immunity defense. How do we do this? sought “appeal.” respecting genuine issues the existence ordinarily not tell appeal will notice of appel hence whether happened,” “what “order, identify the us; required it is objec of law as a matter lants’ conduct was taken, from which part thereof’ (not deliberately indiffer tively reasonable is based. legal rulings on which it and not the denial. ent), the basis for court’s was the 3(c). So, the notice of Fed.R.AppJP. as con specifically identified court For the required service. perform the does not here to the considered material facts it troverted Appel- If Federal Rules of the See J.A. that in affidavit assertions Winfield’s defense observed, the properly Procedure fore late were appellant-officers of the some us, the “is- tell appellants’ brief by to other should posed Gibson of the risk warned appellant’s primary brief of knowledge that he section the by sues” safety their inmates’ of the consuming required to statement “[a] alco include had been weapon had a and Fed.R.App.P. true, presented court for review.” the that were issues Assuming hol. 28(a)(3). regrettably know in this case The brief bound opined [were] “the officers the district respect was at risk” safety inmates not do so. of other With that the does ... would motion for “permissive attitude denial of the that their court’s pro immunity grounds, the right continued on violate the inmates’ further elab security.” unhelpful general terms Without tection and is stated in issue issues, then the court the factual the officers are entitled simply on as “whether oration immunity motion. of immunity the as to all Winfield’s denied here get the answer J.A. 8. We claims.” point the that at this It seems clear however, in the ar- precision, sufficient with determined court had record appellants’ brief. section gument genuine wrongly) that there were (rightly or There, quali- devoted to their portion- in the hap- respecting fact “what of issues material defense, plain that it is fied the motion. required denial of that pened” (as they not in challenge did do not officers clear, also possible, it had but that It is less court) court’s obser- district district legal” determination—think- “purely amade (determination?) that the constitution- vation on been raised—that ing the issue had “clearly alleged established” right al .was them violation facts as it assumed time, only the court’s but critical essen- persons which reasonable established law that there determination tial known would have positions in the officers respecting reason- fact material event, de- any whatever shown. In The entire conduct. of.the officers’ ableness made, officers could actually terminations argument is that appellants’ burden order appeal the denial not -under Johnson a tri- to create was insufficient evidence genuine-issue deter- it on a insofar as rested element fact on this issue material able on mination, only as it rested insofar but undisputed on the defense that was made. “purely legal” determination not violated Winfield’s had Furthermore, purely evidence if there even protect to intervene right their failure it is appealable, that was legal determination ensu- court’s The district might their factual defense. one of the anomalies 7. Here is was a well- asserted ing ruling statement court expected pra e-Johnson district probably technical- circuit, one was settled therefore probably not recur will issue, a contested ly a "determination” As regime. ante. See note under the new been have passing that could not indicated, but a comment did not-—cer- officers the defendant any conse- days to thought pr legal” “purely e-Johnson clearly—raise tainly did not denial review of motion, quence for apparently conced- instead in their relying solely order. arguendo, assuming it or And, argument Their on the it pur- him. J.A. 20-26. has done. See ante at 534. up ports authority in the point doing is summed assertion to find so in what it record, perceives “plainly there was as the course envisioned” regarding the reasonableness of dispute the Johnson Court: that “on those infre- “[n]o perceptions.” quent ... officers’ J.A. 21-22. occasions these when district does decision, supply the factual basis for its court, however, determined The required type we would be to undertake the And, dispute. that there was such a because generally of de novo review that would be that fact-related determination is the prohibited.” Id. sought appealed appellants one to be appealable as such is not I under not, respect, simple With all this is appeal.8 would dismiss this exegesis, matter of textual what the Johnson

Court indicated that it “envisioned.” Had it intended, surely been what was the Court B. very simple thing, would have said a such as: however, majority, has concluded ‘When, however, the district court has failed appeal properly properly pres- seeks and [?]) (completely sufficiently identify [?] purely legal ents for our review a determina- predicate purely legal facts for its deter- appealable tion that is under Johnson. As mination, then, necessity, as a matter of the (1) indicated, that, disagree believing I with appeals court of must make own de its novo actually that no such issue was raised for determination, applying summary judgment (2) by determination the district court and standards, predicate properly facts was, that if it the district court’s determina- thing, be assumed.” The Court said no such properly presented tion has not been for our reading implied nor can such a any- be from appeal. review on this thing plainly say. Perhaps majori- it did the ty—and says agree the other courts which it however, Assuming, that such a determina- reading with point— its of Johnson on this us, properly tion was made and is before I believe that this is what the Court must have question affirm presented, would it. The if mind, mind, had in or us, should have had in the issue is before is whether the facts given difficulty divining from a sum- by assumed the district court show a viola- mary judgment record what another court tion of of which rea- “likely assumed.” But that of course is not appellants’ position in sonable officials would interpreting our function in Supreme Court have known. And, event, mandates. in as I believe majority, extensively reviewing demonstrated, process can be is not that summary judgment materials before the dis- already difficult for courts required on occa- court, trict concludes that no such violation likely sion to holdings highest divine the was shown. But it is that obvious this con- law, state courts on matter of state or what clusion is reached not on the basis of the “jurists likely of reason” would think about “likely court, facts by assumed” district rule, the “newness” of a constitutional but on majority the basis of facts the con- likely whether four Justices of the Court cludes should have been assumed that grant certiorari, would petition vote to court right application on a judg- etc. Indeed, principles. ment majority says—in directly responding the course of in Turning process here, proper to that Part opinion opposing IV of posi- question its for us is what facts the district court tion of exactly “likely this dissent—that this is what gleaned assumed” as that can be suggest 8. No one could that this is one injustice” of those need to avoid “clear or where "resolu- where, discretion, cases should, in an of our exercise we doubt"). beyond any surely tion is This is no circumstances, special because of consid- Indeed, ambiguous such case. record and actually er an issue not raised and determined us, novelty, presented strongly of the issues Singleton Wulff, district court. See against using militate this case as a vehicle for 106, 120-121, 2868, 2877-78, U.S. L.Ed.2d exploration application definitive of John- (1976) (general subject to ex- rule (for us) appellate regime. son 's new review ception only special circumstances such as the cells; then, respective that went into their that search admittedly record unusual the in- have “could locked appellant-officers by the forced might be recognized so”; failed to that cells but do “state” mates specifically failure court’s district thereafter, ran apparently “[sjhortly Gibson “likely as- facts find do we How them? [appellant] Williams his cell and struck ma- out of doing simply what without sumed” entering before his homemade shank” impose on with simply jority has done here: him; a third stabbing cell and assumption Winfield’s factual proper court the Scott, fight and inmate, in the intervened for error legal determination its review [appellants] “certain while subdued Gibson some Surely pay we must basis? on that nothing to but did intercede Scott only what was watched attention—though we seek him”; [appellants] assert that the assist should than what likely assumed rather immediately signaled [appellant] Walker summary judgment procedure what been—to by the over the assault was help, but that as have identified applied properly 6n the scene.” arrived other officers time making the assumed to be facts all, 78-79. That, taken J.A. after must determination. guided the district process specifical materials Looking beyond these But facts. predicate identifying those court, portions of other identified ly of error possibility “likely” presumes the apparent out the court’s flesh the record error assumption, and ultimate revealed. of the situation assessment factual inter- to confine in order be tolerated must an officer affidavit asserted Winfield’s “purely legal” within locutory review but original fight with Gibson saw his Choice evidence, all, of what after The best bounds. con other nothing until several officers did “likely as its assumed” has district court These J.A. 66-67. verged on the scene. ap- the court is not what predicate could be some of them or at least officers assumed, but have should believes it peals had that the inmates known to have found that legal determination court’s district and, according to the drinking, J.A. been wrong- (rightly or assume it the facts did court, easy access to they had that shown. ly) was a violation fight in Following their weapons, 82. J.A. appellants, Gib of the presence of some dis- basis what facts Seeking on that cells, but the to their went assumed,” and Winfield opposed son “likely as court here trict step that take the obvious failed to guards on the sum- have assumed what should to any immediate an end to put record, seems would the answer mary is, cells. See and lock the danger; that close And, support to plainly to me. plain (District Even after Op.). assumed J.A. that on those determination court’s account, had several Winfield, own analysis his My facts, was shown. a violation that that indicated buzzer pressed the times run as follows: locked, the closed and his wanted door he specific statement The district court’s remained nothing and the door did guards “it meager: it assumed predicate facts n Meanwhile, according to open. 67. J.A. allegations factual from appears to the Winfield, mouthing off was “Gibson access allowed liberal inmates are prison making threats cell to his as he went officers weapons”; dangerous beverages alcoholic now1,refer ‘squash going to this he was were “bound therefore officers corrections 67. Some indeterminate J.A. ring to me.” was at safety other inmates that the know cell, his went into Gibson time after brief but however, Elsewhere, as risk.” J.A. 81-82. reemerged and then a shank retrieved he reasoning, of its directly indicative his cell. from could show materials to record referred cell and Winfield’s then Gibson entered just before facts: that number of material stood two officers him as began to stab issue, appellant- certain of the incident grievance At a later J.A. his watched. that Winfield were aware officers he reason that the meeting, stated Williams Gibson, drinking attacker, had been eventual Hicks had Lt. was cell; not intervene did in Gibson’s inmates with other wine cells. go not to into the officers fight but ordered got Gibson into plaintiff and timing Having J.A. 68. Neither nor the rea- fight witnessed a between Gibson order, given, if it appear son for that general and Winfield that occurred As two officers the record. watched the atmosphere, appellant-guards some of the inmate, stabbing progress, a third one deliberately chose not to lock the two Scott, pushed through John the two officers cells, respective either on their own initiative cell and did the door intervene. response or in request pro- to Winfield’s aid, Neither officer came to Scott’s however. by sounding tection his alarm buzzer. When inmate, According J.A. 68. to this the offi- Gibson then rushed out of his cell towards by doing nothing cers continued to stand and into Winfield’s where he stabbed him gotten weapon even after had Scott Gibson’s repeatedly shank, with a metal none of the During hand under control. J.A. 57. appellants any intervene, made effort Gibson, Scott, struggle according with though opportunity presented Scott, help guards, asked several attempt prevention interruption or standing of whom were at the door “with stabbing any greater without risk of harm enough man-power they to take control” if than is a normal incident to the official re- willing respond had been to Scott’s sponsibilities position occupied. In all request help. guards But the were not this, involved, appellant-guards though willing to act. J.A. 57. aware of prisoner a serious risk that one course, another, adopted would harm appellants’ summary Of judg- stance of risk, deliberate supporting pres- choosing ment motion and indifference to that materials ent an instead to alternative factual leave the matter to scenario which be resolved blameless, completely certainly the inmates rather than risk harm to deliberately plight. indifferent to themselves. Winfield’s majority, accepting aspects critical If “likely those assumed” facts were estab- “undisputed” by their account as any proper- proof—as lished in they might might ly countering materials from Winfield as non- be—the conduct involved would constitute movant, finds error in the district court’s violation of a legal determination.9 appellants’ reasonable officials in these But, indicated, plain it is from the rec- positions would be aware. See Farmer v. ord that the facts as appel- asserted in the Brennan, papers lants’ “likely motion were not those (1994) 128 L.Ed.2d 811 (recognizing by Instead, assumed” the district court. it is right cases). as established in earlier plausi- obvious that that court assumed—and If us, this issue properly before bly. in (though this case assumed that is not district court’s denial of critical)—a quite adequate- different scenario on the should, basis of these assumed facts ly pleading inferable from Winfield’s and therefore, be affirmed. supporting “likely materials. Under that as- scenario, prison guards sumed” who were Ill aware that inmates in the Winfield/Gibson cell-block area had access to alcoholic bever- Seeking clarify which, that under collat ages possessed dangerous and that some doctrine, eral order by reviewable weapons, nothing put did stop a to conduct from interlocutory denying orders that posed gener- were bound know immunity grounds, the al risk of violence and harm to all inmates. in recog- Johnson v. Jones Incidentally,' shank; 9. noting it bears that even guards if the proscribed pro that the followed properly conducting court were straight cell), de emerged cedures when Gibson from his review, justified novo accept- it would not be nonmoving party cannot be considered under ing certain of the critical obligation facts it relied deploy specific on as challenging facts “undisputed” credibility because Winfield as non-movant of the movant's assertions. See 10A Where, did not counter them head-on. Wright, as was Mary Kay Charles A. Arthur R. Miller & here, Kane, the case movant's forecast of critical § Fed. Prac. & Proc.: Civil 2726 at undisputed evidence is § for the obvious reason 2727 at 137-43 At the time these facts that it occurred, was in control of exclusive the movants were said to have Winfield was in his (e.g. guard that no knew that had a disputing directly. Gibson cell with no means of them between distinction making the nized VESTAL, Danny Plaintiff- legal” “purely determina- Alan “fact-related” Appellant, required sometimes the doctrine tions prob- practical conceptual pose Two of those appeals. for courts lems is be- Hunt, (assuming the related CLINTON; B. problems Bill James review) presented for us Defendants-Appellees. fore they are new a court appeal to 96-6089. No. court) (for this new Johnson’s under problem regime. One appellate review Appeals, Court of States United “likely as- facts predicate identifying the Fourth Circuit. making its a district by sumed” facts those determination purely May Submitted constitution- clearly-established violation of 4, 1997. Decided Feb. facts those when been shown right has al court. stated expressly not been scope of review is the nature The other it when legal determination purely view, my appealed. properly been

has apply properly to majority has failed here these. teaching to either Johnson’s likely to recur first, fortunately, is not any- case teaches If this frequently. too express state- special need thing, it is the predicate facts courts ments ruling that on those they have assumed clearly-established consti- a violation lesson shown. That has been tutional cumber- spare from more us absorbed should “likely assumed.” for facts searches some when means problem—what The other legal de- purely court’s reviewing a district predicate given” the to “take as termination the basis court as facts assumed On persist. determination—will but, spoken now majority has problem, the with my wrongly view respect, all with consequences—both unfortunate claimants, deserv- § 1983 courts and undeserving. as them well among MURNAGHAN, HALL, Judges K.K. say authorize me MICHAEL ERVIN opinion. in this join

Case Details

Case Name: Winfield v. G.L. Bass

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jan 31, 1997

Citation: 106 F.3d 525

Docket Number: 94-7346, 95-6422

Court Abbreviation: 4th Cir.