Dunn v. Denk

United States Court of Appeals,

Fifth Circuit.

Nos. 93-1964, 93-9066.

Mary Elizabeth DUNN, Plaintiff-Appellee-Cross-Appellant,

v.

Mike DENK, Defendant-Appellant-Cross-Appellee.

June 13, 1995.

Appeals from the United States District Court for the Northern
District of Texas.

Before POLITZ, Chief Judge, REAVLEY and BARKSDALE, Circuit Judges.

POLITZ, Chief Judge:

Mike Denk, a Texas Department of Public Safety officer,

appeals an adverse jury verdict in Mary Elizabeth Dunn's civil

rights lawsuit. Dunn cross appeals, seeking a new trial on

damages. We affirm in part, vacate in part, and remand for further

proceedings.

Background

Viewing the evidence most favorably to the jury's verdict we

find the following scenario. On a weekend pass from a mental

hospital, Dunn was being driven home by her friend, Hassan Keshari.

As they approached an intersection Keshari spotted trooper Denk,

who recently had cited him for minor traffic infractions. "Watch,"

Keshari told Dunn, "he is going to pull me over." Keshari was

right. Although he came to a full stop at the intersection before

turning, Denk stopped him and issued a ticket for "cutting the

corner." Denk also took Dunn's driver's license to ticket her for

not wearing a seatbelt. A check of her license revealed an

1
outstanding warrant for failure to appear in relation to a speeding

ticket.1 Denk told Dunn to exit her vehicle; when she stood up,

he informed her that she was under arrest. Shocked, Dunn collapsed

into her seat. Despite Keshari's protestation that she had just

left the hospital, Denk pulled her from the car. The motion was

such that she was thrown, face down, into a ditch by the side of

the road.2 With his knee in the small of Dunn's back Denk

handcuffed her, pulled her up by her arms, placed her in the squad

car, and transported her to jail where he called her a "bitch."

Denk filed a charge of resisting arrest which the district attorney

declined to prosecute.

Dunn brought suit under 42 U.S.C. § 1983, charging Denk with

malicious prosecution and the use of excessive force. A jury

returned a verdict for Denk on the former and for Dunn on the

latter, awarding $10,000 in punitive damages but no compensatory

damages. After unsuccessfully seeking post-judgment relief, Denk

appealed the adverse judgment and Dunn cross appealed the failure

to award actual damages.

Analysis

1. Qualified immunity.

1
The evidence reflects that Dunn had attended driver's
school to have the ticket dismissed but that the requisite
paperwork had not been completed.
2
According to Denk's measurements the ditch was about two
feet deep and the edge was approximately seven feet from the side
of the highway.

2
 Although no longer required,3 at the time of this incident

significant injury was a necessary element of an excessive force

claim.4 Accordingly, to defeat Denk's qualified immunity defense

Dunn was obliged to prove a significant injury.5 Denk maintains

the evidence of such was legally insufficient.

Physically, Dunn suffered only bruises but her psychological

injury was substantial. The evidence reflects that the incident

sidetracked her recovery from depression. According to Dr. Richard

C. Bibb, her psychiatrist:

I felt that she was traumatized emotionally, and our term for
that in the psychiatric field is post traumatic stress
syndrome.... What Ms. Dunn was left with was just an
unforgettable event which ... will endure probably the rest of
her life, which will leave her prone to anxiety and panic in
situations that are usually considered routine, that will have
a very subtle effect on her psychic stability for an
undetermined period of time, which could be years.

This was more than mere "transient distress" which does not meet

the "significant injury" threshold.6 Denk insists, however, that

psychological harm, no matter how severe, did not constitute

significant injury under clearly established law at the time of the

arrest. We are not persuaded. It was clearly established before

January 1990, when Denk arrested Dunn, that both physical and

3
Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995, 117 L.Ed.2d
156 (1992).
4
Johnson v. Morel, 876 F.2d 477 (5th Cir.1989) (en banc ).
5
Wells v. Bonner, 45 F.3d 90 (5th Cir.1995).
6
Johnson, 876 F.2d at 480.

3
psychological injuries were compensable in civil rights actions.7

We developed a significant injury requirement to weed out

complaints that were "so minor as to occasion only a tort claim,

not a constitutional invasion."8 As a matter of law, however, this

circuit has never restricted the injuries giving a claim

constitutional dimension to merely those of a physical nature. To

the contrary, as early as 1987 we recognized that psychological

injury sufficed to support a constitutional cause of action. In

Lynch v. Cannatella, an excessive force case, we held that an

allegation of "a change in personality ... as if [the plaintiff

was] becoming crazy"9 stated a sufficient injury to withstand

summary judgment on the ground of qualified immunity. In Hinojosa

v. City of Terrell, Texas,10 although we found that the momentary

fear experienced by the plaintiff when a police officer pointed a

gun at him did not rise to the level of a constitutional violation,

we expressly declined to impose a requirement of physical injury.11

7
See, e.g., Hinshaw v. Doffer, 785 F.2d 1260 (5th Cir.1986);
Keyes v. Lauga, 635 F.2d 330 (5th Cir.1981).
8
Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir.1981).
Shillingford spoke in term of "severe injury"; when we adapted
the Shillingford test to meet the requirements of Graham v.
Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), we
used the term "significant injury." There is no indication that
we intended a "significant injury" to be more severe than a
"severe injury." See Brown v. Glossip, 878 F.2d 871 (5th
Cir.1989).
9
810 F.2d 1363, 1376 (5th Cir.1987).
10
834 F.2d 1223 (5th Cir.1988), cert. denied, 493 U.S. 822,
110 S.Ct. 80, 107 L.Ed.2d 46 (1989).
11
See also Coon v. Ledbetter, 780 F.2d 1158 (5th Cir.1986)
(recognizing the constitutional claim of arrestee's daughter, who

4
 The dissent conflates factual and legal sufficiency. In a

footnote in Johnson v. Morel we stated, "We think it unlikely that

such a significant injury will be caused by unnecessary force

without significant physical injury."12 The dissent interprets this

footnote as a statement of law whereas the majority actually was

making a factual observation. As a factual matter, it may well be

that a significant injury usually will be physical, as precedents
13
such as Hinojosa and Wisniewski v. Kennard reflect. The case at

bar, however, is exceptional; the evidence of record was

sufficient for the jury to find significant injury in Dunn's

emotional trauma.14

The dissent also suggests that Dunn did not satisfy Johnson's

causation requirement—that the injury "resulted directly and only

from the use of force that was clearly excessive to the

suffered only emotional trauma in the defendants' assault on the
family trailer home).
12
Johnson, 876 F.2d at 480 n. 1.
13
901 F.2d 1276 (5th Cir.), cert. denied, 498 U.S. 926, 111
S.Ct. 309, 112 L.Ed.2d 262 (1990). In Wisniewski, we found that
a prison escapee's complaints of fright and bad dreams resulting
from his treatment upon apprehension did not present a jury
question of significant injury.
14
The dissent advances policy arguments against recognition
of nonphysical significant injury. Its arguments are moot in
light of Hudson. In any event, its complaint that a traumatic
experience for one person might cause mere transient distress for
another highlights a problem with the significant injury
requirement itself, not with the acceptance of psychological
injury as potentially significant; it puts the focus on the
effect of the officer's action on the plaintiff rather than on
the relationship between the need for force and the amount of
force exerted, where it properly belongs.

5
need"15—because her trauma in part stemmed from her emotional

vulnerability at the time of her arrest. The dissent misconstrues

the Johnson causation requirement. The "directly and only"

language was intended to distinguish between injuries resulting

from excessive force and those resulting from the justified use of

force.16 It was not intended to displace the venerable rule that

a tortfeasor takes his victim as he finds him17 or to immunize the

exacerbation of a pre-existing condition, leaving the weakest and

most vulnerable members of society with the least protection from

police misconduct.18 The evidence supports a finding that the

emotional trauma which Denk inflicted on Dunn was a significant

injury distinct from the depression for which she was hospitalized,

resulting "directly and only" from the use of excessive force.19

2. Juror misconduct.

Denk contends that juror Chester Cox dissembled during voir

dire by not admitting to a prior arrest. Cox, by affidavit,

insists that he raised his hand but was overlooked. The record

15
876 F.2d at 480.
16
Id.; see also Hay v. City of Irving, Texas, 893 F.2d 796
(5th Cir.1990); Huguet v. Barnett, 900 F.2d 838 (5th Cir.1990).
17
Pieczynski v. Duffy, 875 F.2d 1331 (7th Cir.1989).
18
Unlike the dissent, the majority reads Wells as holding
that the exacerbation of the plaintiff's pre-existing shoulder
injury was not significant. The dissent's interpretation is
foreclosed by circuit precedent.
19
Denk also asserts that Hudson requires proof that the
defendant acted "maliciously and sadistically to cause harm."
503 U.S. at 6, 112 S.Ct. at 999. Hudson was an eighth amendment
case. Dunn's fourth amendment claim is governed by Graham, which
adopts an objective reasonableness test.

6
does not establish misconduct. Further, Denk's attorney knew of

the prior arrest early in the trial but chose to remain silent

until the return of an adverse verdict. The delay waives the

objection.20

Denk also complains that a previous reprimand in his

personnel file was mentioned during jury deliberations, even though

the personnel file was excluded from evidence. Two jurors

apparently learned of the rebuke from a newspaper article which the

district court directed the jury to disregard. The bare mention of

a prior reprimand does not raise a reasonable possibility of

prejudice, particularly in light of the court's admonishment.21 The

district court did not abuse its discretion in denying Denk's

motion for a new trial.

3. Damages.

After finding excessive force, the jury awarded $10,000 in

punitive damages but no compensatory damages. We agree with the

parties that the denial of compensatory damages was inconsistent

with the finding of liability, which presupposed significant

injury. We are not persuaded that the inconsistency demonstrates

impermissible compromise. The jury obviously struggled mightily to

reach a verdict; it succeeded in doing so. Its confusion over the

appropriate allocation of damages does not undermine our confidence

20
Garcia v. Murphy Pacific Marine Salvaging Co., 476 F.2d
303 (5th Cir.1973).
21
Cf. Bolton v. Tesoro Petroleum Corp., 871 F.2d 1266 (5th
Cir.) (brief mention of extraneous information, corrected by jury
foreman, does not create a reasonable possibility of prejudice),
cert. denied, 493 U.S. 823, 110 S.Ct. 83, 107 L.Ed.2d 49 (1989).

7
that in reaching its verdict it found the use of excessive force.22

We accordingly affirm the finding of liability and remand for a new

trial limited to the issue of damages, both compensatory and

punitive.

Denk further challenges the award of punitive damages. We

find ample support in the record for such an award. We do not

reach the procedural and legal objections23 because of our decision

to order a partial new trial.

4. Attorney's fees.

The district court awarded Dunn $17,500 in attorney's fees of

the $65,500 requested. Nonetheless Denk claims the award was

excessive, noting that Dunn obtained only $10,000 in damages

compared to the $200,000 sought.24 This method of weighing the

value of legal services fails to take cognizance of the degree of

success obtained.25 The award was not an abuse of discretion. On

cross appeal, Dunn maintains that she is entitled to additional

attorney's fees if she wins higher damages on retrial. We do not

22
To impeach the verdict, Denk submits the affidavit of a
juror who subsequently recanted her vote. It is well established
that a juror may not testify to the course of deliberations or to
the jury's mental processes. Fed.R.Evid. 606(b); United States
v. Straach, 987 F.2d 232 (5th Cir.1993).
23
Denk contests the district court's entry of a judgment for
$1 in nominal damages and argues that punitive damages may not be
assessed without the award of compensatory damages.
24
Defendant's motion for summary judgment on the grounds of
qualified immunity was denied. We affirmed, 954 F.2d 722 (5th
Cir.1992) (memo).
25
Cf. TK's Video, Inc. v. Denton County, Tex., 24 F.3d 705
(5th Cir.1994).

8
reach that argument; it is premature.

AFFIRMED as to liability, VACATED and REMANDED for further

proceedings as to damages consistent herewith.

RHESA HAWKINS BARKSDALE, Circuit Judge, dissenting:

"Delays have dangerous ends." Henry VI, Part 1 (1592) act 3,

sc. 2, 1.33. This is especially true for law enforcement officers

making an arrest. It is no less true for the arrest made by

Officer Denk. For this Fourth Amendment excessive force claim that

arose in 1990, the majority has incorrectly applied the applicable

qualified immunity standard of Johnson v. Morel, 876 F.2d 477 (5th

Cir.1989) (en banc). I respectfully dissent.

I.

As the majority notes, we must view the evidence in the light

most favorable to the jury's verdict. But, even in that light,

certain critical parts of the puzzle are missing from the

majority's summary; they need to be included in order to better

appreciate the misunderstanding, and regrettable incident, that

took place when Dunn was arrested.

Dunn testified that, because she was having problems with

depression, was crying all the time, and needed help, she was

hospitalized. While on a weekend pass, and riding as a passenger

in a vehicle driven by her boyfriend, the vehicle was stopped by

Officer Denk. (His right to stop the vehicle, as well as to later

arrest Dunn, are not in issue.)

The vehicle pulled over to the side of the road on a grassy

shoulder. From the side of the road to the ditch was approximately

9
seven feet; the ditch was dry and covered with tall grass. And,

obviously, because the car was beside the road, from the passenger

door to the ditch was no more than a step or two. (Officer Denk

testified that when you stepped from the passenger side of the

vehicle, you were almost in the ditch.)

Dunn is approximately 5N 7O tall, and, at the time of the

incident, weighed approximately 160 pounds; Officer Denk was

approximately the same size. After Dunn exited the vehicle, and

Officer Denk announced that she was under arrest, she sat back down

in the vehicle; and when she would not exit, Officer Denk

forcefully pulled her out. They both ended up in the grassy ditch.

(His version is they both lost their balance.)

There were four witnesses to the incident: Dunn, her

boyfriend, Officer Denk, and a bystander. It is disputed when the

boyfriend advised Officer Denk that Dunn had been in the hospital.

The bystander heard the comment when Officer Denk was pulling Dunn

from the vehicle, and this is in line with the boyfriend's

testimony; in short, the comment was made while the incident was

in progress.1

The jury was instructed properly for a constitutional

excessive force claim that arose in 1990. For example, using

language from Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct.

1
Perhaps in order to set the tone, the majority states also
that, after Officer Denk transported Dunn to jail, "he called her
a "bitch' ". I fail to see how this comment has any bearing on
whether excessive force had been used earlier. (Officer Denk
testified that, upon reaching the jail, he advised the jailer
that he "better watch her, she's acting like a bitch".)

10
1865, 1871-72, 104 L.Ed.2d 443 (1989), quoted in Johnson, 876 F.2d

at 479, discussed infra, the charge cautioned the jury that, for

Fourth Amendment purposes, in judging the "reasonableness" of the

force used, "[t]he nature of reasonableness must embody allowance

for the fact that police officers are often forced to make

split-second judgments—in circumstances that are tense, uncertain,

and rapidly evolving—about the amount of force that is necessary in

a particular situation." The charge on qualified immunity is not

at issue; we must determine only whether, as a matter of law, the

jury could reasonably find as it did.

II.

It goes without saying that, to avoid a qualified immunity

defense, a plaintiff must claim a constitutional violation that was

clearly established at the time of the alleged wrongful conduct.

E.g., Walton v. Alexander, 44 F.3d 1297, 1301 (5th Cir.1995). And,

it is undisputed that the clearly established law for this case is

stated in Johnson. 876 F.2d at 479-80.2 It provides:

A plaintiff can thus prevail on a Constitutional excessive
force claim only by proving each of these three 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

2
See Harper v. Harris County, Tex., 21 F.3d 597, 600 (5th
Cir.1994) (recognizing that Johnson 's significant injury prong
was overruled by Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995,
117 L.Ed.2d 156 (1992)). But, as the majority states, and under
the well-established law at the time of the incident at issue
here, Johnson is the applicable standard. Harper, 21 F.3d at
601.

11
 (3) objectively unreasonable.

If any one of these elements fails, so too does the
plaintiff's claims. We overrule all previous decisions of
this circuit to the contrary. Id. at 480 (internal footnote
omitted). As discussed below, this case fails the first two
prongs of the Johnson test.

A.

The majority recognizes that Dunn's extremely minor physical

injuries (e.g., bruises to her arm and hip) failed to establish

significant injury. See Wise v. Carlson, 902 F.2d 417 (5th

Cir.1990) (finding bruises to chest and forearm, as well as

hematoma on upper eyelid insufficient as a matter of law).

Therefore, the question is framed squarely: Can nonphysical injury

qualify as significant injury under Johnson? And, if so, was the

right to be free from nonphysical injury clearly established in

1990—when the incident occurred?

1.

In concluding most summarily that, as a matter of law, the

evidence was legally sufficient for the nonphysical injury to be

"significant", the majority begins by stating, "It was clearly

established before January 1990 ... that both physical and

psychological injuries were compensable in civil rights actions".3

But, this is not the issue. I do not question that, once a

3
The majority cites two pre-Johnson cases, both of which
involved sufficient physical injury to support excessive force
claims. See Hinshaw v. Doffer, 785 F.2d 1260 (5th Cir.1986)
(various physical injuries requiring two-day hospitalization);
Keyes v. Lauga, 635 F.2d 330 (5th Cir.1981) (concussion). In
both cases, the plaintiff was allowed to recover damages for
nonphysical injury, but neither case holds that nonphysical
injury, standing alone, can support an excessive force claim.

12
plaintiff has satisfied the Johnson test, she may be compensated

for nonphysical injury. The issue is whether a nonphysical injury,

standing alone, will pass the Johnson test. For that question, the

majority relies primarily on one case (again, pre-Johnson ), Lynch

v. Cannatella, 810 F.2d 1363 (5th Cir.1987), which does not support

its conclusion.

The majority notes that Lynch speaks of a "change in

personality" allegation. But, this allegedly resulted from being

"beaten and drugged", id. at 1376; and only allegations were in

issue, the case being on interlocutory appeal. Among other

distinguishing features from Dunn's nonphysical injury, our court

noted in Lynch that the plaintiff alleged physical and nonphysical

injury, and Lynch was only in the initial stages of litigation.

Here, Dunn's action having been tried, it is beyond dispute that

there is no actionable physical injury. In sum, I cannot agree

with the majority's suggestion that Lynch stands for the

proposition that our court held before 1990 that psychological

injury, without more, can support a constitutional excessive force

claim.4 Indeed, a case cited by the majority, Hinojosa v. City of

Terrell, 834 F.2d 1223, 1230 (5th Cir.1988), cert. denied, 493 U.S.

822, 110 S.Ct. 80, 107 L.Ed.2d 46 (1989), decided after Lynch (but,

4
The majority also cites Coon v. Ledbetter, 780 F.2d 1158
(5th Cir.1986) (yet again, pre-Johnson ). Although one of the
plaintiffs in Coon appeared to have suffered only "sleeplessness
and nightmares", the sufficiency of the injury was not at issue.
Our circuit has held squarely that this type of injury is
insufficient under the Johnson test. Wisniewski v. Kennard, 901
F.2d 1276, 1277 (5th Cir.), cert. denied, 498 U.S. 926, 111 S.Ct.
309, 112 L.Ed.2d 262 (1990).

13
once again, before Johnson ), suggests that the issue was undecided

in our circuit: "This Court does not here determine whether or not

some type of physical injury will in every instance be necessary

for [an excessive force claim]." (Emphasis in original.)

Moreover, the precedential value, if any, of Lynch is

otherwise most questionable, because, as noted, it pre-dates our en

banc decision in Johnson. As quoted earlier, after establishing

the excessive force/qualified immunity test, the Johnson court

stated that it "overrule[d] all previous decisions of this circuit

to the contrary". 876 F.2d at 480. In addition, in a footnote to

the term "significant injury", Johnson stated: "We think it

unlikely that such a significant injury will be caused by

unnecessary force without significant physical injury." Id. at 480

n. 1 (emphasis in original). Although this language was dicta, it

nonetheless casts into serious doubt any prior decisions of our

court which might suggest that nonphysical injury is Johnson

"significant injury".

Therefore, prior to today's decision, whether nonphysical

injury can be "significant injury" was an open question. See

Wisniewski v. Kennard, 901 F.2d 1276, 1277 (5th Cir.) (refusing to

reach "difficult" issue of whether significant injury exists absent

physical injury), cert. denied, 498 U.S. 926, 111 S.Ct. 309, 112

L.Ed.2d 262 (1990). It is necessary, therefore, to examine more

closely today's swift, bold step.5

5
As described in note 2, supra, it is now established that
Johnson is applicable to constitutional excessive force claims
arising only during the relatively brief period between Johnson

14
 The starting point, of course, is Johnson, which was guided by

Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443

(1989), handed down just two months earlier. As dictated by

Graham, Johnson recognized that the standard is Fourth Amendment

"reasonableness", and that

[t]he calculus of reasonableness must embody allowance for the
fact that police officers are often forced to make
split-second judgments—in circumstances that are tense,
uncertain, and rapidly evolving—about the amount of force that
is necessary in a particular situation.

876 F.2d at 479 (quoting Graham, 490 U.S. at 396-97, 109 S.Ct. at

1871-72). Accordingly, in a passage that demonstrates compellingly

why Officer Denk is sheltered by qualified immunity for the

incident in issue, Johnson counseled that

[i]njuries which result from, for example, an officer's
justified use of force to overcome resistance to arrest do not
implicate constitutionally protected interests. An arrest is
inevitably an unpleasant experience. An officer's use of
excessive force does not give constitutional import to
injuries that would have occurred absent the excessiveness of
the force, or to minor harms. Nor can transient distress
constitute a significant injury.

Id. at 480.

As quoted, Johnson observed that mere "transient distress"

would not suffice, and found it "unlikely" that any nonphysical

injury could be sufficient. Id. at 480 & n. 1. Our en banc

court's inclination in Johnson to reject nonphysical injury

creates, at least for me, a reluctance to adopt the majority's

position. Within the excessive force framework of Johnson, the

and Hudson—July 5, 1989 to February 25, 1992, approximately 32
months. In light of the considerable passage of time since then,
statutes of limitation, etc., we have no way of knowing how many
Johnson claims are still percolating in our circuit.

15
allowance of nonphysical injury gives rise necessarily to most

difficult causation questions. For example, and viewing the

circumstances in Dunn's favor, Dunn was thrown into a dry ditch

covered with tall grass and handcuffed; as a result, she suffered

"post traumatic stress syndrome.... which will leave her prone to

anxiety and panic ... for an undetermined period of time". Compare

this with Wisniewski v. Kennard, where a deputy sheriff hit a

prisoner in the stomach twice, put the barrel of a gun in the

prisoner's mouth, and "threatened to blow his head off". 901 F.2d

at 1277. Under what were clearly stronger circumstances than those

presented in today's case, the prisoner in Kennard alleged that he

was frightened and had bad dreams. Id. Our court upheld summary

judgment for the deputy sheriff, finding no significant injury

under Johnson. Id.

What can be made of these two very different results—results

from decidedly different circumstances? Was the prisoner's mental

health extraordinarily stable, or is Dunn's particularly fragile?

And if hers is particularly fragile, would her mental condition

have arisen simply from her arrest, absent the use of any force?6

Regardless of the answers to these questions, the point is only

that, in the context of Johnson excessive force, the subjectivity

of nonphysical injury creates enormous difficulty vis-a-vis the

6
Evidence in the record points up this possibility. For
instance, it appears that a large part of Dunn's anguish resulted
merely from the humiliation of being arrested, and her fear that
Officer Denk might shoot her companion if he attempted to
intervene in her arrest (there is no evidence that her companion
made any significant attempt to intervene, or that Officer Denk
tried to shoot him).

16
leeway that must be granted law enforcement officers working in

tense, unpredictable, fast moving, and dangerous situations. As

Johnson stated, "[a]n arrest is inevitably an unpleasant

experience." 876 F.2d at 480. The entire thrust of Johnson is to

secure working room for law enforcement officers, so that they can

perform their work (sadly, needed now, more than ever, in this

Nation) without fear of civil liability at every turn. And, as

discussed below, this is why law enforcement officers are entitled

to guidance on whether their conduct will result in civil

liability. In short, Johnson 's implied rejection of nonphysical

injury was correct.

2.

In the alternative, it is well to remember that the qualified

immunity analysis does not necessarily determine whether an

official's conduct was proper, only whether it can be the basis for

civil liability. Therefore, even assuming arguendo that

nonphysical injury can be "significant" under Johnson, the question

remains whether this rule was "clearly established" at the time of

the incident in issue, so as to place Officer Denk outside the

protection of qualified immunity. If it was not, Officer Denk is

protected by that immunity. Anderson v. Creighton, 483 U.S. 635,

639-40, 107 S.Ct. 3034, 3038-39, 97 L.Ed.2d 523 (1987); Doe v.

State of Louisiana, 2 F.3d 1412, 1416 (5th Cir.1993), cert. denied,

--- U.S. ----, 114 S.Ct. 1189, 127 L.Ed.2d 539 (1994).

It was "clearly established" in 1990 that Dunn was entitled to

be free from significant injury resulting from unreasonable force.

17
Johnson, 876 F.2d at 480. The question, however, is whether

Officer Denk should be held liable for causing an injury, the

significance of which was not clearly established, and instead, as

per Johnson, was clearly doubted. Guiding my concern is the

Supreme Court's pronouncement that "[t]he contours of the right

must be sufficiently clear [so] that a reasonable official would

understand that what he is doing violates that right." Anderson,

483 U.S. at 640, 107 S.Ct. at 3039. As the Court has explained,

the very purpose of the "clearly established right" requirement is

so that officials may "reasonably ... anticipate when their conduct

may give rise to liability for damages". Davis v. Scherer, 468

U.S. 183, 195, 104 S.Ct. 3012, 3019, 82 L.Ed.2d 139 (1984).

We assume that officials know the law on excessive force.

Accordingly, in 1990, a reasonable officer could conclude correctly

that he must only make certain his use of force, no matter how

unreasonable, did not cause "significant injury".7 Furthermore, in

light of Johnson, an officer could conclude reasonably that

"significant injury" did not include nonphysical injury.8 But

7
No doubt, and as it should have, Johnson afforded broad
working room for police officers. In any event, the correctness
of that decision is not in issue; we apply the law as it existed
in 1990.
8
In addition, it seems clear that Officer Denk was not aware
of Dunn's mental condition. Dunn's boyfriend testified that he
told Officer Denk that Dunn had just been released from the
"hospital"; but, as noted, this was not until Dunn was being
removed from the vehicle. Moreover, the companion made no
reference to a "mental hospital", and gave no other indication
that Dunn was emotionally unstable. In fact, Dunn's doctor
admitted that Officer Denk "had no way of knowing that [Dunn] was
a patient in a psychiatric hospital". (The reference to the
hospital may well have put Officer Denk on notice that he was

18
surely, at the very least, the "contours of the right" were not

sufficiently clear. Rather than providing a basis for an officer

to "reasonably anticipate" liability, Johnson has been made

misleading, considering the majority's holding today, because

Johnson clearly suggests, even if it does not hold, that

nonphysical injury will be insufficient.

Therefore, regardless of whether an excessive force plaintiff

has the right, under Johnson, to constitutional protection against

nonphysical injury, that right was not clearly established in 1990.

Accordingly, Officer Denk was entitled to qualified immunity.

B.

In addition to significant injury, Johnson requires, inter

alia, that the injury result "directly and only from the use of

force that was clearly excessive to the need". 876 F.2d at 480

(emphasis added). On this point, our court's very recent precedent

requires a result contrary to the majority's.

In Wells v. Bonner, 45 F.3d 90, 92 (5th Cir.1995), Wells

brought, among other things, a claim for the excessive force used

against him during his arrest, alleging injury to his shoulder.

Our court reversed the denial of qualified immunity, holding:

Wells's claim fails to satisfy the second element of the
excessive force test because his injury did not result
"directly and only from" the officers' use of force. It is
true that the record reflects that his shoulder was injured by
the officers during the arrest. Wells admits, however, and
other portions of the record also reflect, that the injury was
an exacerbation of an old shoulder injury for which Wells
previously had undergone surgery. Thus, Wells's injury did

dealing with a physically weak individual; but, again, Dunn's
physical injuries are not in issue.)

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 not result "directly and only from" the officers' use of
force. Id. at 96.9

The case at hand is virtually indistinguishable from Wells.

Dunn's original complaint admitted that her nonphysical injury

consisted only of a "relapse of her mental condition", and that, at

the time of the incident, she was depressed and vulnerable. The

record contains substantial evidence of Dunn's past mental

difficulties. Eleven days before her encounter with Officer Denk,

she was hospitalized, in a state of "severe depression and

agitation". And, only about four hours before the incident, she

was released from the hospital on a "therapeutic pass", in order

"to see if she could cope outside the hospital setting".

Dunn's doctor testified that Dunn "wasn't prepared for [the

incident]" and that the incident "was a shock, and it—of all the

issues that we were working with in terms of her recovery, this

threw everything off track". Describing her own condition, Dunn

stated that her "depression was biological, and it seemed like

every little issue just compounded what was going on".

In view of the evidence of Dunn's prior mental condition, it

is clear that, as in Wells, Dunn's mental injury did not result

"directly and only from" Officer Denk's use of force. As with

Wells' shoulder injury, Dunn's alleged mental injury as a result of

9
The majority reads Wells as holding only that the
plaintiff's exacerbation of his pre-existing injury was not a
significant injury. However, the clear and specific holding of
Wells rests on the causation prong of the Johnson test, not the
significant injury prong. The majority also states that my
reading of Wells is contrary to circuit precedent, but cites no
authority for this observation.

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Officer Denk's actions was, at worst, an exacerbation of a

pre-existing condition. As such, her claim fails the causation

element of Johnson.

Finally, along this line, it bears repeating that the jury

found that Officer Denk's actions did not injure Dunn in any shape,

form, or fashion. It awarded only punitive damages, refusing to

award damages to "compensate ... Dunn for ... damages proximately

caused by the use of [Officer Denk's] excessive force...."10 How

10
The jury's response to the actual damages special
interrogatory was as follows:

What sum of money, if any, would fairly and
reasonably compensate Plaintiff Mary Elizabeth Dunn for
each of the following damages proximately caused by the
use of excessive force for which you have found that
Defendant Mike Denk is liable?

Answer in dollars and cents or "None".

a. Past mental anguish, emotional distress, and
mental pain and suffering:

ANSWER: $NONE

b. Future mental anguish, emotional distress, and
mental pain and suffering:

ANSWER: $NONE

c. Lost income:

ANSWER: $NONE

d. Medical bills:

ANSWER: $NONE

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can we hold that Dunn's alleged injuries were "directly and only

from" Officer Denk's actions, when the jury found none? In my

opinion there is but one answer: we cannot.11

III.

This case is a classic example of the upset and

misunderstanding that can result from an arrest. Surely, pursuant

e. Past physical impairment:

ANSWER: $NONE

f. Past physical pain and suffering:

ANSWER: $NONE
11
The majority attempts to find causation by stating that
the Johnson

"directly and only" language was intended to
distinguish between injuries resulting from
excessive force and those resulting from the
justified use of force. It was not intended to
displace the venerable rule that a tortfeasor
takes his victim as he finds him or to immunize
the exacerbation of a pre-existing condition,
leaving the weakest and most vulnerable members of
society with the least protection from police
misconduct.

(Emphasis by majority; footnotes omitted.) Because I
believe the causation element is flatly precluded by Johnson
and Wells, I need respond only briefly.

The "tortfeasor takes his victim as he finds
him/weakest and most vulnerable" argument would truly open
the floodgates for excessive force claims for nonphysical
injury. Doubtless, this is why Johnson struck the necessary
balance that it did. In short, the majority is doing
nothing but attempting to rewrite Johnson. This it cannot
do.

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to the requisite objective reasonableness standard, Officer Denk,

under the circumstances, was justified in removing Dunn from the

vehicle. When he told her she was under arrest, she sat back down

in the car. What was a reasonable officer to do—tell her he was

going to count to three? Objectively, Dunn's reaction to the

arrest announcement was passive resistance, indicating she was not

going to comply with Officer Denk's instructions. He acted as a

reasonable officer would, should, and, indeed, must. For the

reasons stated, I would reverse the judgment on qualified immunity,

and, therefore, must respectfully dissent.

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