Filed: May 12, 1994
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS for the Fifth Circuit _ No. 93-2062 _ GLORIA JEAN HARPER, Individually and as Mother and Next Friend of Jordan Harper a Minor and Jordan Harper, Plaintiffs-Appellees, VERSUS HARRIS COUNTY, TEXAS, ET AL, Defendants, JOHN P. DENHOLM, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Texas _ May 11, 1994 OPINION ON RECONSIDERATION Before ALDISERT,1 REYNALDO G. GARZA, and DUHÉ, Circuit Judges. PER CURIAM: The Court has, su
Summary: UNITED STATES COURT OF APPEALS for the Fifth Circuit _ No. 93-2062 _ GLORIA JEAN HARPER, Individually and as Mother and Next Friend of Jordan Harper a Minor and Jordan Harper, Plaintiffs-Appellees, VERSUS HARRIS COUNTY, TEXAS, ET AL, Defendants, JOHN P. DENHOLM, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Texas _ May 11, 1994 OPINION ON RECONSIDERATION Before ALDISERT,1 REYNALDO G. GARZA, and DUHÉ, Circuit Judges. PER CURIAM: The Court has, sua..
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UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 93-2062
_____________________________________
GLORIA JEAN HARPER, Individually and as Mother
and Next Friend of Jordan Harper a Minor and Jordan Harper,
Plaintiffs-Appellees,
VERSUS
HARRIS COUNTY, TEXAS, ET AL,
Defendants,
JOHN P. DENHOLM,
Defendant-Appellant.
______________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
______________________________________________________
May 11, 1994
OPINION ON RECONSIDERATION
Before ALDISERT,1 REYNALDO G. GARZA, and DUHÉ, Circuit Judges.
PER CURIAM:
The Court has, sua sponte, reconsidered its opinion issued in
this matter on April 29, 1994, and finds portions of Part III
thereof inconsistent with its opinion in Rankin v. Klevenhagen, 5
F.3d 103 (5th Cir. 1993). Accordingly, we vacate Part III of our
prior opinion in this matter and substitute therefor the following:
III
Denholm claims that he is entitled to qualified immunity in
that his use of force was objectively reasonable under the
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Circuit Judge of the Third Circuit, sitting by designation.
circumstances and in light of the legal rules established at the
time of the arrest. He contends, inter alia, that he is entitled
to qualified immunity because Harper failed to plead and create a
fact issue that she had sustained a significant injury while being
arrested.
Qualified immunity protects a police officer from liability if
a reasonable competent law enforcement officer would not have known
that his actions violated clearly established law. Anderson v.
Creighton, 483 U.S. 635, 639,
107 S. Ct. 3034, 3038,
97 L. Ed. 2d 523
(1987). The objective reasonableness of the officer's conduct is
measured with reference to the law as it existed at the time of the
conduct in question.
King, 974 F.2d at 657. Therefore, the right
the official is alleged to have violated must have been clearly
established at the time of the occurrence. Anderson v. Creighton,
483 U.S. 635, 640,
107 S. Ct. 3034, 3039,
97 L. Ed. 2d 523 (1987).
The contours of the right must be sufficiently clear so that a
reasonable official would understand that what he is doing violates
that right. Johnston v. City of Houston,
14 F.3d 1056 (5th Cir.
1994) (citing
Creighton, 483 U.S. at 640, 107 S.Ct. at 3039). If,
upon viewing the evidence in the light most favorable to the non-
movant, reasonable public officials could differ on the lawfulness
of the defendant's actions, the defendant is entitled to qualified
immunity. See
id. (citing Pfannstiel v. City of Marion,
918 F.2d
1178, 1183 (5th Cir. 1990)).
The examination of a claim of qualified immunity is a two-step
process. The first inquiry is whether the plaintiff has alleged a
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violation of a clearly established constitutional right. Siegert
v. Gilley, 500 U.S. 226, ))),
111 S. Ct. 1789, 1793,
114 L. Ed. 2d 277
(1991). It is well settled that if a law enforcement officer uses
excessive force in the course of making an arrest, the Fourth
Amendment guarantee against unreasonable seizure is implicated.
King, 974 F.2d at 656. The next step is to determine the standard
by which to judge the reasonableness of the officer's behavior.
Id. at 657.
Denholm argues that controlling authority in October 1990
required a plaintiff alleging an excessive force case under the
Fourth Amendment to prove a significant injury, which resulted
directly and only from the use of force that was clearly excessive
to the need, and the excessiveness of that need was objectively
unreasonable. Johnson v. Morel, 876 F.2d 477, 480 (5th Cir. 1989)
(en banc). The Supreme Court overruled the significant injury
prong in an Eighth Amendment excessive use of force context.
Hudson v. McMillian, ))) U.S. ))), ))),
112 S. Ct. 995, 1000,
117
L. Ed. 2d 156, 167 (1992). We now hold that the Johnson standard is
no longer valid in the wake of Hudson v. McMillian, ))) U.S. ))),
112 S. Ct. 995,
117 L. Ed. 2d 156 (1992), to assess whether plaintiff
has alleged a constitutional violation. A plaintiff is no longer
required to prove significant injury to assert a section 1983
Fourth Amendment excessive force claim. See Knight v. Caldwell,
970 F.2d 1430, 1432 (5th Cir. 1992), cert. denied, ))) U.S. ))),
113
S. Ct. 1298,
122 L. Ed. 2d 688 (1993). However, appellant concludes
that since we are to judge the objective reasonableness of the
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officer's conduct under the laws established at the time of the
occurrence, he is shielded by qualified immunity because the since
discarded "significant injury" component still existed on the date
of the arrest. Denholm's argument implies that his conduct cannot
be declared "unreasonable" if no significant injury resulted.
This Court has decisively rejected the retroactive application
of new legal standards to excessive force claims involving
qualified immunity, and has held that the objective reasonableness
of a government official's conduct must be measured with reference
to the law as it existed at the time of the conduct in question.
See e.g., Creighton, 483 U.S. at 637, 107 S.Ct. at 3038; see also
Rankin v. Klevenhagen,
5 F.3d 103, 108-09 (5th Cir. 1993)
(requiring objective reasonableness to be measured with reference
to constitutional benchmarks and the law existing at the time of
the conduct). The benchmark for objective reasonableness is that
which existed at the time of the alleged violation))we look to
clearly established law at that time. Johnston v. City of
Houston,
14 F.3d at 1060 (5th Cir. 1994) (citing Spann v. Rainey,
987 F.2d
1110, 1114 (5th Cir. 1993)). This task necessarily encompasses
judging the reasonableness of the officer's conduct in light of the
specific contours of the right to be free from excessive force
during arrest that predominated at the time.
We recently decided this very issue in Rankin v. Klevenhagen,
5 F.3d 103 (5th Cir. 1993). There we held that in determining the
objective reasonableness of the officer's use of force in 1989, the
court should apply the significant injury test of Shillingford v.
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Holmes, 634 F.2d 263 (5th Cir. 1981), and Johnson since that was
the constitutional benchmark when the events occurred. Likewise,
the same test should have been applied to the events in this case
which occurred in 1990. The district court did not consider the
seriousness of the alleged injuries in determining whether the
officer's conduct was objectively reasonable. It should have.
Even applying the proper test, the evidence reveals that a
genuine issue of material fact remains regarding the use of
excessive force and the objective reasonableness of using such
force, so Denholm is not entitled to summary judgment. Of course,
Denholm still may assert qualified immunity at trial. We express
no view as to the facts that may be established at trial or as to
the legal significance of those facts.
Except as herein modified our original opinion remains
unchanged.
REYNALDO G. GARZA, Circuit Judge, Concurring Specially.
I concur specially in the opinion in this case by my brethren
Duhé and Aldisert because the case is being returned to be tried to
a jury on whether or not Officer Denholm used excessive force or
not.
I believe that Rankin v. Klevenhagen, 5 F.3d 103 (5th Cir.
1993), was decided wrongly. Even the panel admits in the opinion
that it creates problems.
In my view, after Hudson v. McMillian, ___ U.S. ___, 112 S. Ct.
995,
117 L. Ed. 2d 156 (1992), the type of injury suffered is no
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longer viable and whenever there is a question of fact as to
whether or not an officer used excessive force, it has to be left
to the trier of fact. If no excessive force was used, the officer
is acquitted and gets his immunity from suit. If the trier of fact
says excessive force was used then he must suffer the consequences.
Personally, I cannot conceive of any scenario where qualified
immunity can be granted when there is a disputed question of fact
as to whether or not excessive force was used in making an arrest
using the factors enunciated in Hudson v. McMillian, as a guide on
whether or not there was excessive force used.
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