Mary Elizabeth Dunn v. Mike Denk, Cross-Appellee

79 F.3d 401, 1996 U.S. App. LEXIS 4969

Opinions

KING, Circuit Judge:

*

This is a case controlled by the law applicable from 1989 to 1992, a window created by our decision in Johnson v. Morel, 876 F.2d 477 (5th Cir.1989) (en banc), and Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992), the decision of the Supreme Court effectively overruling it. See Harper v. Harris County, Texas, 21 F.3d 597, 600 (5th Cir.1994).

I

A.

The facts concerning Officer Denk’s arrest of Ms. Dunn in 1990 and Dunn’s ensuing suit under 42 U.S.C. § 1983 against Denk for, inter alia, excessive use of force in effecting her arrest are set out in full in the panel opinion and dissent, Dunn v. Denk, 54 F.3d 248 (5th Cir.), reh’g en banc granted and opinion vacated by 54 F.3d 248, 257 (5th Cir.1995). As the panel majority described it, “[pjhysically, Dunn suffered only bruises but her psychological injury was substantial.” Id. at 249. The jury found excessive force, but it did not award compensatory damages. It did award $10,000 in punitive damages. The district court entered judgment on the jury verdict, and Denk appealed. The question before us is whether Denk was entitled to qualified immunity as a matter of law.

We begin by determining whether Dunn alleged the violation of a clearly established constitutional right. She did so by alleging “excessive force ... arising] in the context of an arrest.” Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989). Counsel for Denk correctly concedes that whatever injury requirement (if any) may remain after Hudson respecting a claim for excessive force in arrest is satisfied here. However, Denk contends that for purposes of qualified immunity we look to the state of the law when the arrest at issue occurred. Harper, 21 F.3d at 601. Specifically, Denk’s contention — a contention with which the panel majority originally agreed but has apparently abandoned¹ — is that for this January 1990 arrest, a Fourth Amendment excessive force claim was controlled by Johnson, and that under Johnson, Dunn was required to prove the following elements:

“(1) a significant injury, which

(2) resulted directly and only from the use of force that was clearly excessive to the need; and the excessiveness of which was

(3) objectively unreasonable.” [Johnson, 876 F.2d] at 480.

The argument continues that in Johnson, we insisted that significant injury was an element of the constitutional claim, an objective, validating event of the reasonableness of force used in making an arrest. Finally, Denk points that in Johnson’s footnote 1, we observed:

“We think it unlikely that such a significant injury will be caused by unnecessary force without significant physical injury. However, on the facts before us here, we do not decide whether a significant but non-physical injury would be legally sufficient.” Id. at 480 n. 1.

B.

Given the explicit language of Johnson, and its footnote 1 in particular, we conclude that the law at the time of this arrest was uncertain regarding whether “a significant injury will be caused by unnecessary force without significant physical injury.” On the present facts, Denk was entitled to qualified immunity from the claims asserted in this case.

II

In Johnson, we also distinguished between injuries resulting from excessive force and those resulting from the justified use of force. Looking at causation, we limited recovery to injuries that “resulted directly and only from the use of force that was clearly excessive to the need.” Johnson, 876 F.2d at 480. We reject the contention that Johnson, in instances where its threshold requirement of significant injury was satisfied, precluded recovery for aggravation of preexisting injury caused by the use of excessive force. A trier of the fact can compensate only for injury caused by the use of excessive force. There can be no award for injury caused by reasonable force. Johnson’s clause “(2)” did not speak to the recovery for injuries for which a person is uniquely susceptible beyond insisting that compensation be for an injury caused by the excessive force and not a reasonable force. In sum, this particular language of Johnson said no more, and we say no more today. The holding of Wells v. Bonner, 45 F.3d 90 (6th Cir.1995), is not to the contrary. The aggravation of the old injury was not attributable to the excessive component of the force used. Rather, the aggravation of Wells’s old shoulder injury was claimed to have been caused by handcuffing his hands behind his back, a routine police procedure. Id. at 92.

The judgment below is REVERSED.

Judges GARWOOD, E. GRADY JOLLY, PATRICK E. HIGGINBOTHAM, W. EUGENE DAVIS, EDITH H. JONES, JERRY E. SMITH, DUHÉ, RHESA HAWKINS BARKSDALE, EMILIO M. GARZA and DeMOSS concur in the judgment and Part I of the opinion. Chief Judge POLITZ and Judges REAVLEY, GARWOOD, PATRICK E. HIGGINBOTHAM, W. EUGENE DAVIS, WIENER, BENAVIDES, STEWART, PARKER and DENNIS concur in Part II of the opinion.

1

. The panel majority, Chief Judge Politz and Judge Reavley, specifically held:

Although no longer required, at the time of this incident significant injury was a necessary element of an excessive force claim. Accordingly, to defeat Denk’s qualified immunfiy defense Dunn was obliged to prove a significant injury.

Dunn v. Denk, 54 F.3d at 249. The dissent’s newly-minted position — ”[o]nce an officer uses objectively unreasonable force to effect an arrest, he loses his qualified immunity, whether the other elements of an excessive force claim [e.g., injury to the arrestee] are clearly established or not,” Dunn v. Denk, 79 F.3d 401, 407 (5th Cir.1996) (Reavley, J., dissenting)-is devoid of citation for the obvious reason that it finds no support in the case law.