IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-10254
_____________________
SIR WILLIAMS,
Plaintiff-Appellant,
versus
MICHAEL L. BRAMER; JAY C.
ANGELINO; CITY OF DALLAS
POLICE DEPT.,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court for the
Northern District of Texas
_________________________________________________________________
July 22, 1999
Before REAVLEY, JOLLY, and EMILIO M. GARZA, Circuit Judges.
E. GRADY JOLLY:
In this case, Sir Williams alleged, inter alia, that two
police officers, Michael L. Bramer and Jay C. Angelino, violated
his constitutional rights. He alleges that Bramer choked him
twice--once while conducting a search of his mouth and then again
in response to William’s complaints about the first choking. He
further alleges that, sometime after the choking occurred, Angelino
arrived on the scene and, after telling him that he was free to go,
used a racial epithet while addressing him.
Williams sued the officers under 42 U.S.C. § 1983 and a
district court granted summary judgment in favor of the officers,
finding that they were entitled to qualified immunity. The
district court concluded that Williams failed to show evidence of
injury and therefore he could not recover for the choking. To the
extent that the second choking was allegedly motivated solely by
malice, we disagree with the district court’s formulation of
injury. We therefore reverse the district court’s ruling on this
issue.
With respect to the use of the racial epithet, the district
court did not address the issue. However, because the issue before
us is solely a question of law--whether the alleged conduct of the
officer amounts to a violation of Williams’s right to equal
protection--we address the issue on appeal. We hold that, in order
to establish an equal protection violation, a plaintiff may not
merely assert that an officer used a racial epithet. While the use
of the epithet is compelling evidence of racial animus, which
establishes that the officer’s conduct may be motivated by race,
the plaintiff must still show that the officer engaged in specific
conduct that denied him equal protection of the laws.
In this case, Williams has presented no evidence that the
officer harassed his or impeded his liberty in any other way. We
therefore affirm the summary judgment ruling with respect to
Williams’s equal protection claim.
I
Officers Bramer and Angelino are employed by the City of
Dallas (“Dallas”). On April 5, 1995, at approximately 8:15 p.m.,
2
Bramer was in the Roseland Homes housing projects to exchange
information with Officer Michael Hackbarth regarding suspected drug
activity in the area. According to Bramer, he told Hackbarth that
he would cover an alley where several citizens had reported that
drugs and weapons were being sold out of the back of a house.
Bramer drove to the alley directly behind the suspected drug
location where he observed the plaintiff, Williams, sitting in a
parked vehicle with his lights off. In his affidavit, Williams
stated that he was waiting to take friends to the store. When
Bramer drove into the alley, Williams indicated that he moved his
car beside a vacant house to allow the police car to pass. Bramer
stopped and got out of his car. He approached Williams, shining a
flashlight at Williams, and asking Williams to step out of his
vehicle.
After Williams stepped out, what occurred is disputed by the
two parties. Bramer contends that Williams “immediately became
very verbally abusive towards me.” In addition, although both
parties agree that Bramer searched two areas--Williams’s car and
Williams’s body--they do not agree on the specifics of the search.
Bramer argues that he first searched Williams and then searched the
car. Williams, on the other hand, argues that Bramer patted him
down, searched his car, and then returned to search his mouth.
When Bramer conducted a search of Williams’s car, according to
Williams, he searched the ashtray, dome light, and sun visor.
3
Bramer stated that he only searched the side floorboard and area
immediately around the driver’s seat of the vehicle for safety
reasons.1
With respect to the body search, there is a marked difference
between Bramer’s and Williams’s accounts. Bramer states that,
after patting him down, he noticed that Williams was talking as if
there were something in his mouth. Based on previous experience
with suspects stopped in drug locations, he suspected that Williams
might have been holding crack cocaine in his mouth. He therefore
executed a search of Williams’s mouth. In so doing, he placed his
hand on Williams’s chest, asked Williams to open his mouth, and
then looked inside. When he did not observe anything in Williams’s
mouth, he proceeded to search Williams’s car.
According to Williams, after patting him down and then
searching the car, Bramer appeared frustrated and returned to
Williams, grabbing him by the throat and telling him: “Let me see
what’s under your tongue.” When he lifted his tongue, Bramer
started choking him and told him to “spit it out.” He had problems
breathing, was unable to swallow, and began to feel dizzy. When
Bramer loosened his grip, Williams told Bramer that internal
affairs was going to get a report on him, whereupon Bramer began
1
On appeal, Williams does not challenge the district court’s
holding that Bramer executed a legitimate search of the car.
4
choking him again. At this point, Angelino arrived at the scene2
and Bramer ceased choking him. Bramer and Angelino both denied
that Williams was ever choked.
Angelino obtained Williams’s identification and conducted a
computer search. The computer search came up clean, and Williams
was then released. Williams requested the police supervisor’s name
and number and the names and badge numbers of the officers on the
scene. According to Williams, Angelino replied:
You can’t call the supervisor because I’m not giving you
his name or number and we are not going to tell you our
names either boy. You can only have our badge
numbers . . . [ ] nigger.
Angelino and Bramer both deny that Angelino made this comment.
Williams filed a civil rights action pursuant to 42 U.S.C.
§ 1983 alleging that his constitutional rights under the Fourth and
Fourteenth Amendments were violated by Bramer, Angelino, and
Dallas. The district court granted summary judgment to the
defendants and Williams timely filed his appeal.
II
We review the district court’s grant of summary judgment de
novo. Guillery v. Domtar Industries, Inc., 95 F.3d 1320, 1326 (5th
Cir. 1996). In so doing, we apply the same summary judgment
standard as that applied by the district court. Id. We first
2
According to Bramer, Angelino arrived at the scene with his
partner, Officer Jack Hurd. According to Williams, Hurd arrived
with Bramer. There is no testimony from Hurd in the record.
5
consider the applicable law to ascertain the material factual
issues. King v. Chide, 974 F.2d 653, 656 (5th Cir. 1992). We then
review the evidence bearing on those issues, viewing the facts and
inferences to be drawn in a light most favorable to the non-moving
party. Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th
Cir. 1994). Summary judgment is proper “if the pleadings,
deposition, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” Fed.R.Civ.P. 56(c).
In this case, the district court held that the defendants were
entitled to qualified immunity with respect to all of Williams’s
claims. We therefore review the summary judgment ruling in the
light of the standard for whether a public official is entitled to
qualified immunity. In a § 1983 suit, we must make two separate
inquiries. We must first determine whether the plaintiff has
alleged the violation of a clearly established constitutional
right. Siegert v. Gilley, 500 U.S. 226, 231-32 (1991); Lampkin v.
City of Nacogdoches, 7 F.3d 430, 434 (5th Cir. 1993). If we find
that a constitutional right has been violated, our second inquiry
is whether the governmental official’s actions were objectively
reasonable. Anderson v. Creighton, 483 U.S. 635, 639 (1987).
Qualified immunity shields an official performing discretionary
functions from civil damages liability, provided his actions meet
6
the test of objective legal reasonableness. Harlow v. Fitzgerald,
457 U.S. 800, 819 (1982). We define reasonableness in the light of
the legal rules that were clearly established at the time the
actions were taken. Anderson, 483 U.S. at 639. Objective
reasonableness is a matter of law for the courts to decide, not a
matter for the jury. Mangieri v. Clifton, 29 F.3d 1012, 1015-16.
However, underlying historical facts may be in dispute that are
material to the reasonableness determination. Id. at 1016.
III
On appeal, we address whether qualified immunity applies to
two claims. The first claim is that Bramer violated Williams’s
Fourth Amendment rights by subjecting him to excessive force. The
second claim is that Angelino violated his equal protection rights
under the Fourteenth Amendment by using a racial epithet while
conversing with him. We address each claim in turn.
A
Williams argues that Bramer used excessive force when Bramer
choked him while searching his mouth. Before addressing the
specifics of Williams’s argument, we note that the relevant facts
are hotly contested here. Because the district court determined
the case on the basis of a summary judgment motion, we must accept
the allegations in Williams’s affidavit as true. Thus, although
Bramer has testified that he never choked Williams, we must for
purposes of this appeal assume that he did. We must further assume
7
that Bramer choked Williams during his search of Williams’s mouth
and then again, in response to Williams’s comment that he intended
to report Bramer.
In Johnson v. Morel, we restated the test for qualified
immunity in the context of excessive force: a claim for excessive
force in violation of the Constitution requires (1) an injury (2)
which resulted directly and only from the use of force that was
clearly excessive to the need and (3) the force used was
objectively unreasonable. 876 F.2d 477, 480 (5th Cir. 1989)
abrogated on other grounds, Harper v. Harris County, Tex., 21 F.3d
597 (5th Cir. 1994).
The district court concluded that Williams had failed to make
out the first element necessary under Johnson. In Johnson, we
stated that in order to make out a due process violation, the
plaintiff must show that he suffered a “significant injury.” The
Supreme Court subsequently overruled the significant injury prong
in the context of a claim of excessive force under the Eighth
Amendment, Hudson v. McMillian, 503 U.S. 1, 8 (1992) and, applying
Hudson, we have concluded that the plaintiff is no longer required
to show a significant injury in the Fourth Amendment context
either. Harper v. Harris County, Tex., 21 F.3d 597, 600 (5th Cir.
1994).
Nevertheless, we do require a plaintiff asserting an excessive
force claim to have “suffered at least some form of injury,”
8
Jackson v. R. E. Culbertson, 984 F.2d 699, 700 (5th Cir. 1993).
Furthermore, we have shaped our analysis so that we do not permit
a cause of action for every contact between a citizen and a police
officer:
In just about every conceivable situation, some amount of
force or contact would be too nominal to constitute a
constitutional violation. When the force used is
insufficient to satisfy the legal standard necessary for
recovery, the amount of force is de minimis for
constitutional purposes.
Ikerd v. Blair, 101 F.3d 430, 434 (5th Cir. 1996). In determining
whether an injury caused by excessive force is more than de
minimis, we look to the context in which that force was deployed.
“[T]he amount of injury necessary to satisfy our requirement of
‘some injury’ and establish a constitutional violation is directly
related to the amount of force that is constitutionally permissible
under the circumstances.” Id.
What constitutes an injury in an excessive force claim is
therefore subjective--it is defined entirely by the context in
which the injury arises. In this case, Williams alleges that he
suffered the same physical injury from two separate encounters with
Bramer: first, while conducting a search of Williams’s mouth, and,
second, after Williams threatened to report him. In his affidavit,
Williams made the following factual allegations: (1) he was choked
on two occasions by officer Bramer; (2) while being choked, he
9
could not breathe or swallow, and experienced dizziness; and (3)
the incident caused him to cough and to have to catch his breath.3
We therefore must determine whether, in the context in which
the force was used, Williams’s loss of breath and dizziness amount
to injury sufficient to allege a constitutional violation.
Furthermore, because the contexts in which the two chokings
occurred differ, we must assess whether Williams suffered a legally
cognizable injury with respect to each choking.
With respect to the alleged choking that occurred while Bramer
attempted to search Williams mouth, we must conclude that it is not
a cognizable injury. Whenever a detainee is physically searched by
an officer, a physical confrontation inevitably results. In such
circumstances, we cannot conclude that the alleged injury that
resulted from the contact at issue here--that is, fleeting
dizziness, temporary loss of breath and coughing--rises to the
level of a constitutional violation.
With respect to the second choking, however, we do find that
the alleged injury is sufficient to assert a constitutional
violation. Based on the facts that we must accept as true on
appeal, Bramer’s second choking of Williams was motivated entirely
by malice. Bramer was therefore not legitimately exercising force
in the performance of his duties as an officer. In this context,
3
Williams also seeks damages for “mental distress” from
embarrassment, mental anguish, and humiliation. There is no
evidence in the record to substantiate this alleged injury.
10
we hold that, although suffering from dizziness, loss of breath,
and coughing are not significant injuries, combined, they qualify
as a cognizable injury when the victim is maliciously assaulted by
a police officer (as alleged by Williams). We therefore must hold
that Williams has established a genuine issue of material fact
regarding whether he sustained an injury based on the factual
allegations contained in his affidavit.
Having concluded that, for purposes of his § 1983 claim,
Johnson suffered a cognizable injury from the second choking, we
must turn to the second and third Johnson elements--whether the
injury resulted from the use of force that was clearly excessive
and whether that force was objectively unreasonable. In this case,
with respect to the second choking, both elements are clearly met.
There can be no justification for Bramer’s allegedly malicious
choking of Williams. On the basis of the summary judgment evidence
before us, we must therefore conclude that Bramer choked Williams
in a manner that was excessive and objectively unreasonable.
Because Williams has succeeded in presenting evidence that
establishes a § 1983 claim for excessive force, the district court
erred in granting summary judgment in favor of the defendants. We
therefore reverse the district court’s ruling with respect to this
claim.
B
11
Williams’s second claim is that Angelino’s use of a racial
epithet while addressing him amounts to violation of his right to
equal protection under the Fourteenth Amendment. The district
court did not address this issue in its summary judgment ruling.4
Because the issue before us is solely a question of law--whether
the alleged facts amount to a constitutional violation--we address
the issue. We conclude that the evidence presented by Williams is
insufficient to make out an equal protection violation, because
Angelino’s alleged use of the racial epithet did not amount to
conduct, such as harassment, that would deny Williams of equal
protection of the laws.
Under our qualified immunity analysis, we turn first to
whether Williams alleged a violation of a constitutional right.
The Equal Protection Clause directs that persons similarly situated
should be treated alike. Plyler v. Doe, 457 U.S. 202, 216 (1982).
“To state a claim under the Equal Protection Clause, a § 1983
plaintiff must allege that a state actor intentionally
discriminated against the plaintiff because of membership in a
4
Williams pled an equal protection claim in his complaint, and
the defendants challenged the sufficiency of the evidentiary
support for this claim in their motion for summary judgment.
Williams did not reply to that argument in his response to the
motion for summary judgment and the district court did not address
the issue at all in its memorandum order granting summary judgment.
On appeal, Williams now argues that the district court erred in
dismissing this claim. Although Williams did not respond to the
defendants’ motion for summary judgment, Williams did include an
affidavit that included what is arguably a sufficient evidentiary
basis for making his equal protection claim.
12
protected class.” Johnson, 876 F.2d at 479 (citing Washington v.
Davis, 426 U.S. 229, 247-48 (1976)). For the case at hand, we must
determine whether the conduct at issue amounts to discrimination in
violation of the Equal Protection Clause. To that end, we briefly
restate the nature of Williams’s allegations.
According to Williams, Bramer stopped choking him just before
Angelino arrived on the scene. There is therefore nothing in the
record that links Bramer’s conduct to Angelino’s. We therefore
find that Williams’s equal protection claim is completely unrelated
to the choking incident involving Bramer. Upon arriving, Angelino
ran a background check on Williams and released him. Then, in
response to a demand for his name and badge number, Angelino
responded not just by providing Williams with his badge number but
also by using a racial epithet when addressing him.5 Simply put,
therefore, we must determine whether an officer discriminates
against a citizen when he uses a racial epithet when responding to
an inquiry from such citizen.
Johnson involved allegations that an officer used his vehicle
to push Johnson’s broken down car over a bridge while continuously
transmitting racial slurs and epithets over his vehicle’s loud
5
There is no evidence in the record that would indicate that
Angelino withheld information from Williams that Angelino was
obligated to provide. Williams has neither alleged nor attempted
to show, that he was entitled to either the names of the officers
or the phone number of the officers’ supervisor. Nor has Williams
alleged that his ability to file a complaint against the officers
was in any way impeded by Angelino’s conduct.
13
speaker. The occupants of the car testified that the officer
disregarded their safety when he pushed the car down a decline at
an unsafe speed for the vehicle. After pushing the car to a safe
resting place, the officer confronted Johnson and, using racist
comments, humiliated and harassed him before handcuffing and
arresting him. We held that, because the district court had not
commented on Johnson’s equal protection claim, Johnson was entitled
to prove that his right to equal protection was abridged. Although
we did not explicitly address the merits of Johnson’s claim, we
noted that: “[t]he elimination of racial discrimination remains at
the heart of the Fourteenth Amendment. The Constitution does not
tolerate intentional police harassment of racial minorities.”
Johnson, 876 F.2d at 479.
Other circuits have interpreted our opinion in Johnson to
stand for the principle that racial epithets coupled with
harassment are sufficient to support a cause of action under the
Equal Protection Clause. Simons v. O’Brien, 77 F.3d 1093, 1094 n.2
(8th Cir. 1998); Smith v. Thornburg, 136 F.3d 1070, 1089-90 (6th
Cir. 1998) (Clay, J., dissenting). We have been hesitant to
conclude, however, that the use of racial epithets alone are
sufficient to assert a cause of action under the Fourteenth
Amendment. In an earlier case, Ware v. Reed, 709 F.2d 345, 352
(5th Cir. 1983) we declined to address this “thorny” issue, noting
instead that epithets alone may not be sufficient:
14
Query whether the use of such language, rancid and
denigrating as it certainly is, standing alone, amounts
to the kind of violation contemplated by the Fourteenth
Amendment Equal Protection Clause and entitled to redress
under § 1981. Compare Howard v. National Cash Register
Co., 388 F.Supp. 603 (S.D.Ohio 1979) and Johnson v.
Hackett, 284 F.Supp. 933 (E.D.Pa. 1969) with Harris v.
Harvey, 605 F.2d 330, 338 (7th Cir. 1979) (collecting
cases) and City of Minneapolis v. Richardson, 239 N.W.2d
197, 200 (1976); Cf. Ex parte, Hamilton, 376 U.S. 650
(1964) (per curiam); Allen v. City of Mobile, 331
F.Supp. 1134, 1150 (S.D.Ala. 1971), aff'd, 466 F.2d 122
(5th Cir. 1972) (per curiam) (personnel in the police
department instructed to refrain from the use of racially
derogatory words); see generally Delgado, Words That
Wound: A Tort Action for Racial Insults, Epithets, and
Name Calling, 17 Harv.C.R.-C.L.L.Rev. 133, 159-65 (1982).
Id. at n.12.
We hold today that an officer’s use of a racial epithet,
without harassment or some other conduct that deprives the victim
of established rights, does not amount to an equal protection
violation. When leveled against a citizen by a police officer, a
racial epithet, by its nature, calls attention to the citizen’s
racial identity. The use of an epithet is therefore strong
evidence that a comment or action is racially motivated. The
question in the equal protection context, however, is not just
whether the conduct is racially motivated but also whether that
action deprives a person of “equal protection of the laws.” U.S.
Const. amend. XIV. Where the conduct at issue consists solely of
speech, there is no equal protection violation.
In this case, Angelino neither played a part in physically
abusing Williams nor engaged in any activity that would constrain
15
Williams’s freedom--in fact, he was the officer who told Williams
he was free to go. The only objectionable conduct on Angelino’s
part was his use of the racial epithet in responding to Williams’s
request for names and badge numbers. Angelino’s conduct is
therefore markedly different from that of the officer in Johnson.
Based on Williams’s allegations, Angelino made only one, isolated
comment and he in no other way impinged on Williams’s rights. We
cannot conclude that his alleged conduct therefore rises to the
level of harassment.6
VII
To sum up, Williams argues on appeal that the district court
erred in granting summary judgment with respect to two separate
claims--an excessive force claim and an equal protection claim--
involving two different officers. We agree with the district court
that Williams failed to assert a legal injury with respect to the
choking that allegedly occurred while Bramer searched his mouth.
We hold that the district court erred, however, when it held that
Williams failed to allege a legal injury when he claimed that
Bramer maliciously and intentionally choked him a second time
6
Although we hold that Williams does not have a cause of
action with respect to the alleged use of this epithet, we do not
leave him without redress. He may still file a complaint with the
police force. The best way to take care of allegations that a
police officer is racially intolerant in his association with
members of the community is by instituting appropriate disciplinary
measures within the police force, not by resorting to the judicial
process.
16
because he complained about the mouth search. The alleged second
choking raises a genuine issue of material fact that cannot be
resolved on summary judgment. We therefore REVERSE the district
court’s ruling with respect to Williams’s claim against Bramer.
With respect to Williams’s equal protection claim, however, we find
no error. Williams argues that an officer’s use of a racial
epithet, standing alone, is enough to make out an equal protection
violation. We hold today that it is not. A plaintiff must
demonstrate that an officer using a racial epithet engaged in some
specific conduct, such as harassment, that deprived the plaintiff
of equal protection of the laws. The mere utterance of a racial
epithet is not enough by itself to amount to an equal protection
violation. Because Angelino’s conduct does not amount to
harassment, we AFFIRM the district court’s ruling with respect to
17
Angelino and REMAND for further proceedings consistent with this
opinion.
REVERSED in part; AFFIRMED in part; and REMANDED.
18