Jones v. Buchanan

LUTTIG, Circuit Judge, dissenting:

It follows a fortiori from our holding in Robles v. Prince George’s County, Maryland, 302 F.3d 262 (4th Cir.2002), that *536Deputy Keller is entitled to qualified immunity in this case. Because the majority fails to follow our precedent in Robles, and because that decision dictates that Deputy Keller is protected by the doctrine of qualified immunity, I dissent.

The police conduct at issue in Robles was, under law, entirely indefensible. Prince George’s County police officers arrested Nelson Robles on an outstanding traffic warrant issued by neighboring Montgomery County. They drove Robles to a deserted shopping center, and, at three in the morning, tied him to a metal pole with flex-cuffs and left him. The court in Robles held that the officers had committed a Fourteenth Amendment violation under Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861,. 60 L.Ed.2d 447 (1979), as the officers’ actions “served no conceivable law enforcement purpose” and caused more than de minimis injury. Robles, 302 F.3d at 270. Indeed, the officers did not even argue that their actions had a legitimate law enforcement purpose. Id. at 269. Nevertheless, the panel awarded the officers qualified immunity on the ground that a reasonable police officer would not have known that handcuffing a person to a pole in a deserted parking lot at three in the morning and abandoning him there, all admittedly for no law enforcement purpose, was unconstitutional.

The court in Robles analyzed the plaintiffs claim under the Fourteenth Amendment’s Due Process Clause and Jones’ claim is pressed under the Fourth Amendment (as incorporated by the Fourteenth), but, at their core, both cases present the same essential claim that a police officer unnecessarily injured a detainee. There is at least one critical difference between this case and Robles, however. In Robles, the police officers offered no law enforcement justification for their actions, whereas here, Deputy Keller offers, and in fact had, a manifestly legitimate law enforcement need to restrain Jones.

The majority dismisses the necessity of Keller’s actions, but that necessity is obvious, even to one who reads the majority’s opinion. The majority states that Jones “never pushed, kicked, or threatened anyone,” ante at 530, and that “if Jones was handcuffed behind his back in a locked room, we find it hard to see how he would pose an immediate threat to anyone.” Ante at 529. These statements are premised upon at least two erroneous assumptions. First, the majority assumes that Jones’ presence in a locked room somehow obviated the need to gain control of him. But the room in which Jones was locked was the booking room, a central artery of the police department. The police could hardly be expected to remain outside the booking room until Jones quieted down on his own. Indeed, as Deputy Keller testified, he was fingerprinting college students for volunteer work and he needed to walk the students past Jones in order to get to the fingerprinting machine. Thus, Deputy Keller needed to enter the booking room with the students.

Second, and frankly quite troubling, the majority appears to believe that a handcuffed person, evidently even one who is in the process of moving his cuffed hands to the front of his body, poses “no threat to the officer or others.” Ante at 534. If the majority does so believe, then such a belief is naive. One does not need experience to know differently, but there is an abundance of painful experience confirming that a handcuffed person, especially one who has his hands in front of him, can still be very dangerous. See, e.g., United States Department of Justice, Law Enforcement Officers Killed and Assaulted 49, 50 (2001) (describing instances in which law enforcement officers were killed by persons wearing handcuffs); United States *537v. Sanders, 994 F.2d 200, 209 (5th Cir.1993) (“Sander’s argument is entirely dependent on the assumption that, by handcuffing a suspect, the police instantly and completely eliminate all risks that the suspect will flee or do them harm. As is sadly borne out in the statistics for police officers killed and assaulted in the line of duty each year, however, this assumption has no basis in fact.”).

To be sure, whether Jones had a weapon is relevant to his dangerousness, but the fact that Jones did not have a weapon certainly does not, as the majority supposes, render him harmless. Indeed, it took four officers to finally subdue the handcuffed Jones. Despite the majority’s contrary conclusion, there cannot be a serious dispute over whether the belligerent, uncooperative Jones presented a threat both to the personnel and civilians in the police department. Deputy Keller’s take-down, while it had the unfortunate, and unfor-seen, consequence of injuring Jones, was undeniably an attempt to remove that threat. For that very reason, Deputy Keller presents a stronger case for qualified immunity than did the officers in Robles.1

Because the majority cannot distinguish Robles, it engages in a revisionist reading of that opinion. The majority characterizes Robles as a close, and accordingly uncertain, case with respect to the de minim-is injury prong of Bell v. Wolfish. Ante at 535 n. 8. Citing not to the opinion in Robles, but, rather, to Judge Wilkinson’s opinion concurring in the denial of rehearing en banc, id. (citing Robles v. Prince George’s County, Maryland, 308 F.3d 437 (4th Cir.2002) (Wilkinson, J., concurring in the denial of rehearing en banc)), the majority attempts to minimize Robles’ injuries, reciting that “he conceded that no one bothered him during the 10-minute ordeal, admitted that he suffered no physical injury, and offered no objective evidence (e.g. lost wages or medical testimony) to support his claim of psychological injury.” The majority then states that it was the closeness of the case with respect to the de minimis injury prong of Bell v. Wolfish, coupled with the lack of factually similar cases that combined to require the grant of qualified immunity in Robles. Id. In other words, according to the majority, the qualified immunity analysis in Robles turned in large part upon the “closeness of the question” as to the seriousness of the injury sustained by the plaintiff.

However, the panel in Robles, of which Judge Motz was a member, said nothing at all to the effect that its decision to grant qualified immunity was dependent upon the closeness of the question as to injury. Nothing in the brief portion of the opinion devoted to the qualified immunity analysis suggests that the extent of injury was even considered in resolution of the qualified immunity issue; indeed the level of harm, which today is so central to the majority’s interpretation of Robles, is not even mentioned in the qualified immunity analysis undertaken by the Robles panel. See Robles, 302 F.3d at 270-71.

The Robles opinion does discuss the extent of injury when it addresses whether Robles satisfied the de minimis injury *538prong of the Bell v. Wolfish test. That discussion, however, belies the majority’s interpretation today, for it states only, without so much as a hint that the issue was close, that the “injury was more than de minimis.” Id. at 270.2

Thus, the only support for the majority’s reading of Robles is Judge Wilkinson’s opinion concurring in the denial of rehearing en banc of Robles.

In recent years, it has become more common on our circuit to attempt to add to, subtract from, or recharacterize the facts recited and relied upon in a challenged panel opinion, or even to fine-tune, if not fundamentally reshape, the legal analysis undertaken by the original panel, in the course of opinions respecting the denial of rehearing en banc. Compare Robles v. Prince George’s County, Maryland, 302 F.3d 262 (4th Cir.2002), until Robles v. Prince George’s County, Maryland, 308 F.3d 437 (4th Cir.2002) (opinion concurring in the denial of rehearing en banc); compare Harvey v. Horan, 278 F.3d 370 (4th Cir.2002), with Harvey v. Horan, 285 F.3d 298 (4th Cir.2002) (opinion concurring in the denial of rehearing en banc); compare Johnson v. Collins Entertainment Co., Inc., 199 F.3d 710 (4th Cir.1999), with Johnson v. Collins Entertainment Co., Inc., 204 F.3d 573 (4th Cir.2000) (opinion concurring in the denial of rehearing en banc); see also Belk v. Charlotte-Mecklenburg Bd. of Educ., 211 F.3d 853 (4th Cir.2000) (opinion concurring in the denial of rehearing en banc). These opinions respecting the denial of rehearing en banc are cloaked as mere recitations of the facts and reasoning of the panel opinions, not as revisions of those opinions. But it is evident from a comparison of these opinions with the original panel opinions that the former actually are attempted revisions of the latter. In fact, not infrequently, the fullness, depth, and length of the subsequent writing confirms that it is nothing short of a rewriting of the panel opinion from scratch in response to arguments and authorities that were not considered or addressed by the panel.

These attempts at revision of binding panel opinions typically follow upon the identification of errors in the panel’s factual recitation or flaws in the panel’s legal analysis by other members of the court who, by their own written opinions, have drawn the panel opinion into question. That such attempts at revision prove irresistible on occasion is understandable; upon revelation of errors or oversights in either fact or law, there is a quite natural instinct to correct the error or oversight in anticipation of further review of the original decision by the en banc court or Supreme Court or in an effort to forestall altogether any further review. But because these kinds of revisionist writings cannot be and are not the binding authority of the circuit, they ultimately disserve the court and the public, in addition to justifiably confusing the bar and the bench as to the law of the circuit.

It is our solemn obligation in opinions not only to come to the correct conclusions under law, but to support those conclusions with full reasoning that incorporates and honestly addresses the relevant facts and precedents. I have long believed that the federal courts too often fall short in the discharge of this most important of our obligations. But be that as it may, the *539formal release of an opinion of law on behalf of the court is the final step in the court’s deliberative process, not the first or merely another along the way toward the final decision. Identically as issued by the responsible panel, the panel decision is the binding law of the circuit.

Of course, we in the judiciary can make mistakes just like anyone else. We can fail to include relevant facts or even misstate facts. We can overlook authorities or misread them. From time to time, we can even misanalyze a case completely. But our obligation when we do err in these regards is to admit our errors forthrightly and correct them in opinions that are, themselves, binding. We owe nothing less to the parties and the public whom we serve. Indeed, the public respect that the judiciary enjoys is attributable in no small part to our institutional insistence upon the open and formal admission and correction of our misstatements and omissions. We can scarcely criticize others for misstatements, omissions and analytical errors if we turn a blind eye toward, rather than admit, our own.

The developed process for addressing the judicial error is the -grant of rehearing (or of rehearing en banc) and the official correction of the error. Thus, if a convincing argument is made by a colleague in opposition to the denial of rehearing en banc (or by a party in a petition for rehearing en banc) that the panel has erred in the material facts predicate for its disposition or in its analysis of the law, rehearing by the panel — on the submissions if more is unnecessary — is available to address the argument squarely in a revised, but binding, opinion for the court. Or if the argument is of determinative importance and seemingly unanswerable within the four corners of the analysis upon which the panel members can agree, the argument may be addressed by the full court sitting en banc. But it is not the established process, and ought never become such, that the authoring or another judge attempt the correction of factual or analytical errors or omissions in the panel opinion through a ■separate uniting respecting a petition for rehearing or rehearing en banc. The reasons that this practice of post-hoc rationalization must be discouraged are many, and need not be canvassed fully in the context of today’s opinion. But two of these reasons are of especial importance, and deserve notation even in a passing discussion. First, the practice undermines respect for the courts, by leaving the parties and public bound by an opinion that at least one member of the panel has effectively acknowledged was factually or analytically inadequate, at the same time that it consigns the losing party to the appeal of a binding decision that is factually incorrect or legally unsound, but that is made to appear to the reviewing court as less deserving of further consideration by the gloss superimposed by the nonbinding opinion subsequently issued. Second, it sows the seed for confusion among the members of the bar and bench as to what the law actually is, i.e., (where the facts are subsequently added to or subtracted from) whether the principle of law stated in the panel opinion is that confined by the facts as recited in that opinion or those as recited in the subsequent nonbinding opinion, or (where the principle of law itself is modified) whether the governing principle of law is that in the original panel opinion or that in the later opinion. And, in fact, it is not uncommon for the district courts of our circuit, as well as counsel, to cite to and to analyze our separate writings respecting the denial of rehearing en banc as if these writings, rather than the panel opinions that these writings seek to rehabilitate, might be the binding law of the circuit. See, e.g., Martin v. Mendoza, 230 F.Supp.2d 665, 672 (D.Md.2002) (quoting from the opinion concurring in the denial *540of rehearing en banc in Robles); Cogburn v. DaimlerChrysler Corp., 2002 WL 31165151, at *3 (M.D.N.C.2002) (citing to the order, with accompanying opinions, denying rehearing en banc in Rosmer v. Pfizer Inc., 272 F.3d 243 (4th Cir.2001)); Club Ass’n of West Virginia, Inc. v. Wise, 156 F.Supp.2d 599, 617 (S.D.W.Va.2001) (quoting from the opinion concurring in the denial of rehearing en banc in Johnson v. Collins Entertainment); 1 Criminal Procedure § 2.7(c) n.197 (2d ed.1999) (citing opinion concurring in the denial of rehearing en banc in Harvey v. Horan).

Having expressed this concern over separate writings that attempt amendments to our panel opinions, I must acknowledge that Judge Wilkinson’s opinion concurring in the denial of rehearing en banc in Robles does characterize the Robles opinion as involving a “close” case with respect to the de minimis injury prong of the Bell v. Wolfish inquiry, just as Judge Motz says it does. But, as noted, our precedent in Robles does not rest on any such assessment of relative injury. Without belaboring the point, Judge Wilkinson’s solitary opinion on the petition for rehearing en banc is just that, and for the reasons discussed it does not — -in contrast to the panel opinion in Robles, which he earlier authored — represent the law of our circuit.

At the end of the day, it is apparent that different qualified immunity principles have been applied by the majority in this case than were applied by the panel in Robles. Although it would be of no relevance for the disposition of today’s case, I would like to think that Judge Motz has reconsidered her concurrence in Judge Wilkinson’s opinion in Robles based upon the principles of law that I laid out in dissent in that case, see generally Robles v. Prince George’s County, Maryland, 308 F.3d 437, 441 (4th Cir.2002) (Luttig, J., dissenting from denial of rehearing en banc). But whether she has or not, that opinion is the binding precedent in our circuit on the availability of official immunity for unconstitutional conduct by law enforcement. It unquestionably requires that Deputy Keller be afforded qualified immunity for his actions. And I would so hold.3

It is one thing to hold, as the court did in Robles, that officers who tied a passive man to a pole in a deserted parking lot at three in the morning and then abandoned him, with no legitimate law enforcement purpose whatever, are entitled to immunity. It is another altogether to hold, as the majority does, that a police officer who tried to get control of a drunk, verbally *541belligerent, and angry arrestee4 who was disrupting the police department’s operations, disobeying direct orders to be quiet, and attempting to free his hands, is not entitled to qualified immunity.

The only discernible justification for such seemingly irreconcilable holdings is a different view of the “justice” of this case from the panel’s view of the “justice” of the case in Robles.

. The majority suggests that Jones was really trying to bring his hands forward "to alleviate breathing problems,” ante at 530, and not to free his hands. Jones' subjective intent, however, is entirely irrelevant. The proper perspective is that of a reasonable officer on the scene. A reasonable officer would have observed Jones moving his cuffed hands from behind him to his front. The fact that Jones would have had more mobility after executing this maneuver is an unavoidable effect of his action, which would be apparent to any officer observing him. That the greater freedom of movement was only an unintended consequence of a motivating desire to breathe more easily would not have been apparent to an observing officer. A reasonable officer need not be telepathic.

. In its discussion of the trial judge's remitti-tur of compensatory and punitive damages, see id. at 271-72, Robles does suggest that the injuries suffered by the plaintiff were not great. It would be nothing less than interpretive legerdemain, however, to maintain that this discussion, which was entirely independent of the qualified immunity analysis, actually demonstrates that the extent of injury (beyond de minimis) determined in any part, much less large part, the panel's disposition on the qualified immunity question.

. Although it comes as no surprise, the majority is unable to cite even a single apposite case in support of its holding. All of the cases relied upon by the majority dealt with detainees who, in contrast to Jones, were not acting dangerously or aggressively. See Mayard v. Hopwood, 105 F.3d 1226 (8th Cir.1997) (noting that the officer slapped and punched the restrained arrestee without any apparent reason); Alexis v. McDonald's Restaurants of Massachusetts, Inc., 67 F.3d 341, 353 (1st Cir.1995) (noting that “there is no suggestion that Alexis posed a threat to the peace or safety of anyone”);, Rambo v. Daley, 68 F.3d 203, 207 (7th Cir.1995) (emphasizing that the police officers gratuitously punched a handcuffed and "passive” suspect); Rowland v. Perry, 41 F.3d 167, 174 (4th Cir.1994) (“Rowland posed no threat to the officer or anyone else.... Nor is there any real evidence that this relatively passive, retarded man was a danger to the larger, trained police officer.”); Kane v. Hargis, 987 F.2d 1005, 1008 (4th Cir.1993) (“It would have been 'apparent’ to a reasonable officer in Hargis’ position that, after he had pinned to the ground a woman half his size and the woman did not pose a threat to him, it was unreasonable to push her face into the pavement with such force that her teeth cracked.” (emphasis added)). Plainly, none of these cases could have placed Deputy Keller on notice that his actions were unlawful. Of course, for this reason alone, our decision in Robles dictates that Deputy Keller be afforded qualified immunity.

. The majority correctly points out that Jones was not under arrest. However, the relevant perspective is that of a reasonable officer. Deputy Keller testified that he thought Jones was under arrest, J.A. 112, and that perception is reasonable given that Jones was drunk and disorderly and was handcuffed in the booking room. That fact renders the majority's conclusion that Jones “had neither committed, nor was suspected of committing, any crime,” ante at 534, erroneous.

Nor is the majority's conclusion saved by any purported inconsistency in Deputy Keller’s testimony. Even had Deputy Keller subjectively believed that Jones was not under arrest, that would still not change the fact that a reasonable officer viewing Jones at the time of the challenged action could have concluded that Jones was under arrest.