4444444444444444444444444444444444444444444444447 Edward Arthur Jones v. Richard Buchanan, individually

Filed: April 17, 2003
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-2280
(CA-00-27-1-C)
Edward Arthur Jones,
Plaintiff - Appellant,
versus
Richard Buchanan, etc., et al.,
Defendants - Appellees.
O R D E R
The court amends its opinion filed April 15, 2003, as follows:
On page 29, first paragraph, line 13 -- “DaimlerChrystler” is
corrected to read “DaimlerChrysler.”
On page 30, first full paragraph, line 6 -- the period before
footnote 4 is deleted.
For the Court - By Direction
/s/ Patricia S. Connor
Clerk

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
4444444444444444444444444444444444444444444444447
EDWARD ARTHUR JONES,
Plaintiff-Appellant,
v.
RICHARD BUCHANAN, individually
and in his official capacity as
Sheriff of Avery County; LEE
KELLER, individually and in his
official capacity as a Deputy of the
Avery County Sheriff's Department, No. 01-2280
Defendants-Appellees,
and
EDDIE HUGHES, individually and in
his official capacity as a Deputy of
the Avery County Sheriff's
Department; AVERY COUNTY, North
Carolina, a Body Corporate and
Politic,
Defendants.
4444444444444444444444444444444444444444444444448
Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Max O. Cogburn, Jr., Magistrate Judge.
(CA-00-27-1-C)
Argued: October 29, 2002
Decided: April 15, 2003
Before LUTTIG and MOTZ, Circuit Judges, and
Andre M. DAVIS, United States District Judge for the
District of Maryland, sitting by designation.
____________________________________________________________

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Reversed and remanded by published opinion. Judge Motz wrote the
majority opinion, in which Judge Davis joined. Judge Luttig wrote a
dissenting opinion.
____________________________________________________________
COUNSEL
ARGUED: Eric Robert Bellas, SIMPSON, KUEHNERT, VINAY &
BELLAS, P.A., Morganton, North Carolina, for Appellant. Rachel
Ellen Daly, WOMBLE, CARLYLE, SANDRIDGE & RICE,
Winston-Salem, North Carolina, for Appellees. ON BRIEF: Daniel
A. Kuehnert, SIMPSON, KUEHNERT, VINAY & BELLAS, P.A.,
Morganton, North Carolina; Robert M. Elliot, ELLIOT, PISHKO,
GELBIN & MORGAN, P.A., Winston-Salem, North Carolina, for
Appellant. Tyrus V. Dahl, Jr., James R. Morgan, Jr., WOMBLE,
CARLYLE, SANDRIDGE & RICE, Winston-Salem, North Carolina;
Kimberly C. Stevens, STEVENS & WITHROW, P.L.L.C., Winston-
Salem, North Carolina, for Appellees.
____________________________________________________________
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
This appeal arises out of an incident in which a North Carolina
deputy sheriff knocked Edward Arthur Jones to the floor in the sher-
iff's office and then jumped on him, crushing Jones's nose, lacerating
his lips and nose, and bruising his ribs. Prior to the deputy's use of
force, Jones, although drunk and yelling obscenities, was unarmed
and in a secured room; moreover, Jones maintains that his wrists were
handcuffed behind him. It is undisputed that, at the time the deputy
initiated force, Jones was not under arrest or suspected of any crime;
rather, he had voluntarily come to the sheriff's office seeking assis-
tance.
After Jones filed this action, alleging that the deputy's conduct
constituted excessive force, in violation of Jones's constitutional
rights and state law, a magistrate judge granted summary judgment to
the deputy. The judge held, as a matter of law, that the deputy did not
2

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subject Jones to excessive force. For the reasons stated within, we
reverse.
I.
We set forth the facts "in the light most favorable to the party
asserting the injury," in this case, Jones. See Saucier v. Katz, 533 U.S.
194, 201 (2001); Brown v. Gilmore, 278 F.3d 362, 369 (4th Cir. 2002)
("[W]e are required to consider whether the facts, taken in the light
most favorable [to the injured party], show that [the officer's] conduct
violated a constitutional right.").
On the morning of November 3, 1999, Jones began drinking Cana-
dian Mist whiskey, and he continued doing so throughout the day. At
around 4:30 in the afternoon, Jones remembered that he "had to go
to court the next day," and he concluded that his "best bet" was "to
call somebody to come get [him] so [he] could sober up." He deter-
mined that he would "just to go to jail and sleep it off." Afraid that
he would be held in contempt or lose his job if not sober, he wanted
law enforcement authorities "to verify that [he] hadn't had anything
else to drink."
Jones called 911 and told the operator that he was "drunk" and
would like "for an officer to come get [him] and take [him] to jail so
[he could] get sober." Jones waited at his home for about 30 to 45
minutes. When the police failed to arrive, he walked to the home of
a neighbor, Lake Ollis, to "get [Ollis] to take [him] to jail." While
Jones waited for Ollis's son to get dressed, Avery County Sheriff
Richard Buchanan and Detective Pamela James arrived. Sheriff
Buchanan testified that, after Jones threatened to kill himself unless
the officers took him to jail, the Sheriff decided "that there was a pos-
sibility of suicide" and so that it was appropriate to transport Jones to
the sheriff's department. Before leaving, Detective James asked Jones
if he had any weapons. Jones responded that he had a pocket knife.
Detective James removed the knife from Jones's pocket along with a
can of beer from another pocket.
Sheriff Buchanan and Jones both testified that Jones then agreed to
be handcuffed. The Sheriff testified that this was in keeping with
"standing" department policy for transporting persons to the sheriff's
3

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department. Notwithstanding the handcuffs, Jones related that the
Sheriff and Detective James were "nice" to him and that he, in turn,
was polite, answering "yes, sir" and "yes, ma'am" to their questions.
Ollis's son also remembered that, even though handcuffed, Jones
responded to the officers' questions with "[y]es, sir" and "no, sir."
Jones related that while handcuffed in the police car on the way to
the department, "the only thing [he] want [ed] to do [was] lay down
and go to sleep." About a mile into the ride, Jones believes that he
passed out. Sheriff Buchanan recalls that Jones was not a "problem"
during the ride. Upon arriving at the sheriff's department, one officer
told Jones to "[g]et out of the car." Another "grabbed" Jones, who was
still handcuffed behind his back, by the "center part of the handcuffs"
and "got [him] out of the car . . . because [he] was leaned over in the
back seat . . . with [his] head laying down on the seat." An officer
then "jerked" Jones out of the car and "grabbed [him] by the shoulders
and took [him] in the jail."
Inside the sheriff's department, while in the processing room, the
officers "slammed [Jones] down in the chair with [his] hands behind
[his] back." He "was drunk and got to cussing" because the officers
hurt him when they got him out of the car "by [his] handcuffs." As
soon as Jones was settled in the processing room, Officer Eddie
Hughes testified that he locked the "exit doors" of the room, locking
Jones inside.
Meanwhile, Deputy Lee Keller was meeting in an adjacent area
with three local college students who needed fingerprinting for child-
care work. Deputy Keller testified that he had to take the students by
Jones in the processing room to reach the fingerprinting machine, and
he did not want to take the students by Jones until Jones "was going
to be quiet and settle down or we got him put in a holding cell or
whatever."
When Jones asked the officers to "unhandcuff [him]" because he
"was smothering," Deputy Keller called to him to quiet down.
According to Jones, an officer "told [him] to shut the f—k up." Jones
admits that he, too, used "pretty foul language [,]" but he maintains
that he did not push, kick, or even threaten any of the officers. When
the handcuffs were not removed, Jones "started to get mad" and then
4

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began to stand up "just a little bit," in an effort to alleviate his breath-
ing difficulties by attempting to move his handcuffed hands to the
front of his body by taking his hands around his back and under his
feet.
As Jones started to stand up, "the next thing" he knew, an officer
"knocked [him] down on the floor and jumped on [him]." Jones "felt
a big knee . . . in the back of [his] neck and one in [his] ribs." When
he hit the floor, he felt the knee in his back and across his neck. Jones
immediately knew that he had been hurt; he felt his nose go "whaa"
and saw a "puddle of blood." Although Jones could not identify the
officer who hurt him, Deputy Keller admits that he injured Jones.1
Deputy Keller himself suffered no injuries from the incident, except
a scratch on his hand.
Other than hazy memories of seeing "all that blood," of someone
"hollering, `Get the blood off of him,'" of not being able to breathe,
and of some officers trying to help him, Jones recalls nothing more
until the ambulance ride to the hospital. Deputy Keller and his fellow
officers testified that after Keller knocked Jones to the floor, breaking
his nose, Jones was angry and resisted, and that, as Officer Hughes
"pushed" Jones into a holding cell, Jones hit the wall of the cell with
the side of his head. Shortly thereafter, Jailer Alicia Blackburn saw
Jones, "lying on the floor in a fetal position." She observed "blood on
the floor next to his head and big clots of blood coming out of [his]
nose." Officer Hughes testified that he too saw a puddle of blood
____________________________________________________________
1 Deputy Keller offers a very different version of events. Deputy Keller
asserts that Jones was not handcuffed while in the processing room, that
Jones "kind of took a swing at" Keller by bringing his "arm up" toward
Keller, and that Keller, in turn, accidentally hit Jones's nose while
attempting to put him in a "chin lock" as a means of gaining control of
him. However, as Deputy Keller's counsel correctly conceded at oral
argument, in determining if the grant of summary judgment to Deputy
Keller was proper, we must accept Jones's version of the facts, including
that Jones was handcuffed behind his back during the incident and did
not "swing" at Deputy Keller. See Saucier, 533 U.S. at 201. Indeed, the
dissent's characterization of Jones's injuries as an "unforseen" conse-
quence of Deputy Keller's use of force, post at 25, is inconsistent with
the facts as presented by Jones, who describes being knocked down and
jumped on.
5

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about the size of a "basketball" on the floor next to Jones and noted
that Jones was crying.
After Jailer Blackburn called for emergency medical services, an
ambulance took Jones to the hospital. Dr. Michael Tomlinson diag-
nosed Jones with a "depressed comminuted fracture of the nasal
bones," which is a fracture in which "the bone is splintered or crushed
into numerous pieces,"2 a 1.5 "centimeter laceration over the bridge
of his nose," a 1.5 "centimeter laceration of the upper lip mucosal sur-
face, which was gaping somewhat," and bruised ribs. Jones also had
a blood alcohol level of .42. Ten sutures were needed to repair Jones's
lip and nasal lacerations, and Jones then had surgery to repair his "se-
vere," "significant[ly] displac[ed]" nasal fracture.
Sheriff Buchanan testified that immediately after the incident, Dep-
uty Keller "made it clear" that he "had hit" Jones "with his fist." Dep-
uty Keller "came through shaking his hand" and told Sheriff
Buchanan that Jones has "`got a tough mouth.'" According to the
Sheriff, Deputy Keller "was acting like he was proud of" hitting Jones
with his fist. (At oral argument, Deputy Keller's counsel conceded
that it would constitute excessive force, under the circumstances of
this case, for Deputy Keller to have hit Jones with his fist.) Deputy
Keller also "bragged" about the incident to the Sheriff's son. Officer
Hughes testified that Keller commented "that`[his] knee accidentally
hit [Jones's] nose.'" What happened to Jones so bothered Officer
Hughes that he left work early on the day of the incident and apolo-
gized to Jones's neighbor.
When Jones's common-law wife, Rebecca Weedman, arrived at the
department shortly after the incident, police officers gave her conflict-
ing stories as to how Jones was injured. Deputy Chris Buchanan told
her that Jones "fell." Officer Hughes told Weedman that Jones and a
few of the officers "scuffled in the floor." An unidentified female offi-
cer explained to her that Jones had "passed out in the chair and fell
out of the chair." Sheriff Buchanan told her that"`we went to put
Eddie in the holding cell, and he hit his nose on the bars.'" Sheriff
Buchanan testified at his deposition, however, that it was his "under-
standing" that Deputy Keller had "hit" Jones "in the face."
____________________________________________________________
2 Webster's Third New Int'l Dictionary 457 (3d ed. 1993) (unabridged).
6

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The sheriff's department did not immediately charge Jones with
any crime arising from his conduct during this incident. After Sheriff
Buchanan was informed of this lawsuit, however, he asked Deputy
Keller to charge Jones. Deputy Keller testified that he refused to do
so because he had "never had any intent to charge" Jones with any-
thing and to do so "would look like we were being revengeful or
something." Sheriff Buchanan then asked Officer Hughes and another
officer to charge Jones. They did, but the charges "were later either
dismissed or [Jones] was found not guilty."
On February 11, 2000, Jones filed this suit, alleging that Deputy
Keller and Officer Hughes had subjected him to excessive force in
violation of his constitutional rights and state law. Jones also asserted
that Avery County and Sheriff Buchanan established and maintained
a policy of encouraging the use of excessive force and failed to pro-
vide law enforcement officers with adequate training and supervision
as to the proper use of force. In support of the latter assertions, Jones
offered evidence that less than six months after the incident, the State
of North Carolina removed Sheriff Buchanan from office and ulti-
mately a federal court convicted him of felony offenses, including a
civil rights violation. See Harmon v. Buchanan, 164 F. Supp. 2d 649,
657 (W.D.N.C. 2001) (finding in companion case, that Sheriff
Buchanan made "statements to his deputies authorizing the use of
what can best be described as excessive force"); see also Tammy
Jones, Buchanan Gets Prison Sentence, Asheville Citizen-Times,
Nov. 1, 2002, available at 2002 WL 23491632 (reporting on Sheriff
Buchanan's sentence in connection with a March 2001 conviction for
"slamm[ing] a handcuffed suspect's head against a patrol car," caus-
ing the man to lose three front teeth).
Sheriff Buchanan and Deputy Keller moved for summary judg-
ment, contending, inter alia, that Jones had failed to produce evidence
to support an excessive force claim. After the parties stipulated to the
dismissal of Avery County and Officer Hughes, a magistrate judge,
proceeding at the consent of the parties, granted summary judgment
to Deputy Keller and Sheriff Buchanan. Jones v. Buchanan, 164 F.
Supp. 2d 734 (W.D.N.C. 2001); see City of Los Angeles v. Heller, 475
U.S. 796 (1986).
7

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Although the defendants asserted qualified immunity as an affirma-
tive defense, the magistrate judge did not explicitly discuss their enti-
tlement to qualified immunity; rather the judge simply ruled, as a
matter of law, that Deputy Keller's actions were reasonable, and thus
did not constitute excessive force. The magistrate judge recognized
that governing legal principles required him to view, in the best light
for Jones, the facts and all reasonable inferences that could be drawn
from them, "however improbable they may seem." Jones, 164 F.
Supp. 2d at 736 (internal quotation marks omitted). Nevertheless, the
judge failed to credit Jones's evidence that he posed no threat to any-
one at the time Deputy Keller broke his nose and inflicted the other
injuries; indeed, the judge appears to have totally disregarded Jones's
evidence that he was handcuffed at that time.3
II.
In excessive force cases, entitlement to qualified immunity must be
analyzed in two steps, which are to be "considered in proper
sequence." Saucier, 533 U.S. at 200. The "threshold question"
requires a court to resolve the issue that forms the basis of the magis-
trate judge's decision here — whether, "[t]aken in the light most
favorable to the party asserting the injury, . . . the facts alleged show
[that] the officer's conduct violated a constitutional right." Id. at 201.
"If no constitutional right would have been violated," even when the
facts are viewed in the best light for the injured plaintiff, the analysis
ends; the plaintiff cannot prevail. Id.
However, if, taking the allegations or evidence (depending on the
procedural posture of the case) in the best light for the plaintiff, the
plaintiff has stated a violation of a constitutional right, we proceed to
the second step. "[T]he next, sequential step is to ask whether the
right was clearly established" at the time of the events at issue. Id. If
____________________________________________________________
3 The magistrate judge offered no explanation for failing to credit
Jones's testimony that he was handcuffed throughout the incident. Yet,
in a companion excessive force case involving Sheriff Buchanan and the
Avery County Sheriff's Department, the same magistrate judge refused
to grant summary judgment to the defendants, relying heavily on the fact
that the plaintiff contended that he was handcuffed when a deputy sub-
jected him to force. See Harmon, 164 F. Supp. 2d at 654.
8

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not, the qualified immunity doctrine still provides a defendant officer
with immunity from suit. If so, summary judgment must be denied.
Therefore, in order for Jones to defeat the defendants' motion for
summary judgment, (1) he must have stated the violation of a consti-
tutional right, and (2) that right must have been clearly established at
the time he suffered his injuries, November 3, 1999.
A.
We turn first to the "threshold" question: whether, "[t]aken in the
light most favorable to the party asserting the injury," the facts show
that Deputy Keller's "conduct violated a constitutional right." Sau-
cier, 533 U.S. at 201. Jones argues that the facts, considered in the
light most favorable to him, demonstrate that Deputy Keller violated
his Fourth Amendment rights. Deputy Keller recognizes that the
Fourth Amendment constitutes the specific basis for the right alleg-
edly infringed here — that is, the Fourth Amendment right to be free
from unreasonable seizures. See Graham v. Connor, 490 U.S. 386,
394 (1989). The deputy maintains, however, that his conduct consti-
tuted no violation of Jones's Fourth Amendment rights.
The Fourth Amendment prohibition on unreasonable seizures bars
police officers from using excessive force to seize a free citizen. See
Graham, 490 U.S. at 395; see also id. at 395 n.10 ("A `seizure' trig-
gering the Fourth Amendment's protections occurs only when gov-
ernment actors have, by means of physical force or show of authority,
. . . in some way restrained the liberty of a citizen." (internal quotation
marks omitted)). A court determines whether an officer has used
excessive force to effect a seizure based on a standard of "objective
reasonableness." Id. at 399. We consider the facts "from the perspec-
tive of a reasonable officer on the scene," and avoid judging the offi-
cer's conduct with the "20/20 vision of hindsight," recognizing that
"police officers are often forced to make split-second judgments —
in circumstances that are tense, uncertain, and rapidly evolving." Gra-
ham, 490 U.S. at 396-97. We do not consider the officer's "intent or
motivation." Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996) (citing
Graham, 490 U.S. at 396-97). Rather, "the question is whether a rea-
sonable officer in the same circumstances would have concluded that
9

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a threat existed justifying the particular use of force." Id. (citing Gra-
ham, 490 U.S. at 396-97).
We weigh "the nature and quality of the intrusion on the individu-
al's Fourth Amendment interests against the countervailing govern-
mental interests at stake." Graham, 490 U.S. at 396 (internal
quotation marks omitted). This test requires us to determine the rea-
sonableness of an officer's actions and is "not capable of precise defi-
nition or mechanical application." Bell v. Wolfish, 441 U.S. 520, 559
(1979). Instead it "requires careful attention to the facts and circum-
stances of each particular case." Graham, 490 U.S. at 396.
Those facts and circumstances include "the severity of the crime at
issue," whether the "suspect poses an immediate threat to the safety
of the officers or others," and whether the suspect "is actively resist-
ing arrest or attempting to evade arrest by flight." Id. at 396. The
extent of the plaintiff's injury is also a relevant consideration. See
Rowland v. Perry, 41 F.3d 167, 174 (4th Cir. 1994); Pressly v. Greg-
ory, 831 F.2d 514, 517 (4th Cir. 1987). The "question [is] whether the
totality of the circumstances justified a particular sort of . . . seizure."
Tennessee v. Garner, 471 U.S. 1, 8-9 (1985); see also Rowland, 41
F.3d at 173 (stating that courts must avoid making"[a]rtificial divi-
sions in the sequence of events" and should instead view the evidence
"in full context, with an eye toward the proportionality of the force
in light of all the circumstances").
Deputy Keller contends that, given Jones's conduct, "a reasonable
officer on the scene," could have perceived that Jones posed an "im-
mediate threat to the safety" of the deputy or others, justifying the
force applied, i.e., knocking Jones to the floor, jumping on him, and
breaking his nose. See Graham, 490 U.S. at 396. Jones maintains that,
viewing the facts and all fair inferences from them in the light most
favorable to him, this conclusion is simply not possible and, therefore,
Deputy Keller violated his Fourth Amendment right to be secure
against the use of excessive force.
To resolve this question of whether the necessity for force out-
weighed Jones's constitutional rights, we examine each of the Gra-
ham factors in turn. First, we consider the "severity of the crime at
issue." Graham, 490 U.S. at 396. Here, there was no crime at issue;
10

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Jones voluntarily went to the station for assistance in recovering from
excessive alcohol consumption. In recent years, we have twice con-
fronted situations in which a plaintiff, subjected to police force, had
committed no crime; in each we held that the plaintiff had stated a
claim for violation of his constitutional right to be free from excessive
police force. See Clem v. Corbeau, 284 F.3d 543, 545-47 (4th Cir.
2002); Park v. Shiflett, 250 F.3d 843, 848, 853 (4th Cir. 2001). Even
in a case in which the plaintiff had committed a crime, when the "of-
fense was a minor one," we have found that the first Graham factor
weighed in plaintiff's favor and upheld the denial of summary judg-
ment to the defendant police officer. See Rowland, 41 F.3d at 174; see
also Lee v. Ferraro, 284 F.3d 1188, 1198 (11th Cir. 2002) (holding
that this factor "strongly weigh[ed] in favor" of plaintiff because offi-
cer used force even though plaintiff had committed "insignificant
crime"). Accordingly, in this case, in which Jones committed no
crime, this first factor clearly weighs in his favor.4
We next consider whether "a reasonable officer" could have per-
ceived that Jones "pose[d] an immediate threat to the safety of the
officers or others." Graham, 490 U.S. at 396. Deputy Keller, of
course, now maintains that he did perceive such a threat. But Jones
can point to evidence which suggests either that Deputy Keller is not
credible on this point or that the deputy's perception of a threat was
not objectively reasonable.
First, when Deputy Keller knocked Jones to the floor and jumped
on him, breaking his nose, lacerating his face, and bruising his ribs,
it is undisputed that Jones was neither armed nor suspected of being
____________________________________________________________
4 Although agreeing that Jones was not under arrest for any crime, the
dissent suggests, post at 30-31 n.4, that we err in concluding that Jones
"had neither committed, nor was suspected of committing any crime,"
because Deputy Keller believed that Jones was under arrest and his is the
relevant perspective. Deputy Keller, however, contradicted himself on
this point. Although Keller testified that he heard a radio code that indi-
cated (to him) that Sheriff Buchanan was transporting an arrestee, he also
testified that he was not permitted to place Jones in a holding cell, with-
out a magistrate's permission, because Jones had not been charged with
any crime. Viewing the facts in the light most favorable to Jones, we do
not give substantial weight to Deputy Keller's inconsistent testimony.
11

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armed. See Rowland, 41 F.3d at 174 (upholding refusal to grant sum-
mary judgment to police officer in excessive force case when plaintiff
was not armed or "suspected" by the officer of being armed). Thus,
the facts here differ markedly from those in many of the cases in
which we have held that an officer could reasonably perceive the
plaintiff posed an immediate threat to his safety or that of others. See
Anderson v. Russell, 247 F.3d 125, 130 (4th Cir. 2001) ("evidence
conclusively establish[ed]" that officer "reasonably perceived" plain-
tiff "to be armed with a gun"); Elliott, 99 F.3d at 642 (suspect
"pointed" handgun at officers "with his finger on the trigger" and did
not comply with officer's order to drop the gun); McLenagan v.
Karnes, 27 F.3d 1002, 1007 (4th Cir. 1994) (although officer knew
plaintiff was "handcuffed in front," he "reasonably believed" that
another officer saw gun in plaintiff's hands, and "could not confirm"
that plaintiff was unarmed); Greenidge v. Ruffin, 927 F.2d 789, 790
(4th Cir. 1991) (officer reasonably believed that plaintiff suspected of
a crime was reaching for a shotgun).5
Moreover, Deputy Keller himself acknowledges that before he ini-
tiated force against Jones "nobody else was in the process[ing] room"
with Jones, and Deputy Keller does not dispute that Officer Hughes
____________________________________________________________
5 In addition to Greenidge, Deputy Keller cites only four out-of-circuit
cases in support of his contention that Jones failed to proffer evidence
sufficient to support an excessive force claim. These cases differ so
markedly from the case at hand that Deputy Keller's reliance on them
itself demonstrates the weakness of his argument. See Edwards v. Giles,
51 F.3d 155, 156 (8th Cir. 1995)(holding no excessive force claim when
plaintiff, driving stolen van, refused to stop for police, crashed his van,
and then ran from police); Dyer v. Sheldon, 829 F. Supp. 1134, 1135,
1139-40 (D. Neb. 1993) (same when plaintiff assaulted his wife and then
resisted arrest and officers' attempts to handcuff him by striking one offi-
cer on the temple and twice attempting to strike the other officer), aff'd,
21 F.3d 432 (8th Cir. 1994) (affirmed without opinion); Prymer v.
Ogden, 29 F.3d 1208, 1210, 1214 (7th Cir. 1994) (same when plaintiff
actively resisted arrest near known drug house with "number of suspi-
cious onlookers" nearby); Pride v. Does, 997 F.2d 712, 714-15, 717
(10th Cir. 1993) (same when officer subjected plaintiff, arrested for dis-
orderly conduct and possible assault, only to pressure on his neck for 30
seconds, which caused "minimal immediate injury" and "no permanent
injury").
12

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had separated and secured Jones in that room by locking the process-
ing room's "exit doors." A fact finder could conclude that this evi-
dence demonstrates that Jones posed no immediate threat to anyone
before Deputy Keller entered the processing room and used force
against Jones. See Vinyard v. Wilson, 311 F.3d 1340, 1348-49 (11th
Cir. 2002) (finding plaintiff posed no threat to reasonable officer on
the scene when a "glass or plastic partition" separated officer from
drunken, screaming plaintiff in patrol car).
Furthermore, at the time Deputy Keller initiated the force, Jones
has testified that his wrists were handcuffed behind his back. Of
course, Deputy Keller disputes this and Jones may not be able to
prove he was handcuffed. But, in determining whether Deputy Keller
is entitled to summary judgment, we must accept the facts in the light
most favorable to Jones, and if Jones was handcuffed behind his back
in a locked room, we find it hard to see how he would pose an imme-
diate threat to anyone. Cf. Clash v. Beatty, 77 F.3d 1045, 1047 (7th
Cir. 1996) (noting, in dismissing appeal for lack of jurisdiction after
district court denied immunity to officer who pushed handcuffed,
unarmed suspect into police car, causing knee injury, that "it is impor-
tant to remember, [plaintiff] was already handcuffed, and the officers
had ascertained that he was unarmed" prior to use of force). As in
Lee, 284 F.3d at 1198, another recent case in which a police officer
assertedly assaulted a handcuffed plaintiff, "when the facts are con-
strued in the light most favorable" to Jones, it is difficult to discern
"any legitimate law enforcement need" for the force applied in this
case.
To be sure, when Deputy Keller knocked Jones to the floor and
injured him, Jones concedes that he was drunk, angry, and using foul
language. However, mere use of foul language, even a drunk's loud
use of such language in a police station, does not justify an objec-
tively reasonable police officer knocking the drunk down, jumping on
him, and breaking his nose. As the Eleventh Circuit has noted, a
drunken plaintiff's "screaming" and use of "foul language" in a con-
fined area (there a patrol car) constitutes a mere "nuisance" and not
an immediate threat to the safety of the officers or others under Gra-
ham. See Vinyard, 311 F.3d at 1347-48.
Deputy Keller also cannot justify his actions based on Jones's
slight physical movement — simply beginning to stand up "just a lit-
13

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tle bit" while in handcuffs in an effort (according to Jones) to bring
the handcuffs to the front of his body in order to alleviate breathing
problems (not, as erroneously suggested by the dissent, post at 25 n.1,
in an attempt "to free his hands"). Jones maintains that he never
pushed, kicked, or threatened anyone. Although Deputy Keller
asserted in deposition that Jones "kind of took a swing at [him]," the
deputy's counsel correctly conceded at oral argument that we must
accept Jones's contention that he did not attempt to strike Deputy
Keller. Cf. Lee, 284 F.3d at 1198-1200 (holding that slamming
arrestee's head against trunk after securing him in handcuffs was "ob-
jectively unreasonable and clearly unlawful"); Fontana v. Haskin, 262
F.3d 871, 880 (9th Cir. 2001) ("Gratuitous and completely unneces-
sary acts of violence by the police during a seizure violate the Fourth
Amendment."). For all of these reasons and taking the facts in the best
light for Jones, as we must, the second Graham factor also weighs in
his favor.
The third Graham factor — whether the object of the force "is
actively resisting arrest or attempting to evade arrest by flight" — also
favors Jones. Graham, 490 U.S. at 396. In fact, in stark contrast to
most excessive force cases, Deputy Keller does not even suggest that
at the time he began to apply force, he had arrested, or attempted to
arrest, Jones, or that Jones was attempting to evade arrest. Indeed, no
officer contends that Jones was under arrest or resisting arrest at the
time Deputy Keller initiated force against Jones. We recognize that,
after Deputy Keller broke Jones's nose, the deputy and other officers
maintain that Jones resisted them. But Jones makes no claim with
respect to that time period. And, even after Jones allegedly resisted
in response to his broken nose, no officer arrested or attempted to
arrest him until weeks after the incident and only then perhaps in
revenge for Jones's filing of the instant action.
Finally, the level of force used by Deputy Keller caused severe
injuries — a nose crushed into numerous pieces, lacerations of the
nose and lips, each requiring multiple sutures, and bruised ribs. This
is another consideration in determining whether force was excessive.
See Rowland, 41 F.3d at 174 (upholding denial of summary judgment
to officer in excessive force case in which the officer inflicted "seri-
ous leg injury" on a misdemeanant); Kane v. Hargis, 987 F.2d 1005,
1008 (4th Cir. 1993) (per curiam) (same when officer cracked three
14

-- 15 of 32 --

teeth, cut plaintiff's nose, and inflicted facial bruises).6 Again this fac-
tor weighs in Jones's favor; indeed, the severity of Jones's injuries
provides still another ground for distinguishing this case from those
in which we and other courts have held that a plaintiff has not estab-
lished an excessive force claim. See Saucier, 533 U.S. at 209 ("Our
conclusion is confirmed by the uncontested fact that the force was not
so excessive that respondent suffered hurt or injury."); Brown, 278
F.3d at 369 (plaintiff "alleg[ed] no injury of any magnitude"); Mensh
v. Dyer, 956 F.2d 36, 40 (4th Cir. 1991) ("It is undisputed that [plain-
tiff] suffered no physical injury as a result of the incident.").
In sum, Jones has presented evidence that he voluntarily came to
the sheriff's department and was never under arrest or suspected of
any crime. While there, although admittedly drunk, using foul lan-
guage, and starting to stand up, he was unarmed, locked in a room by
himself, and handcuffed with his wrists behind his back. Neverthe-
less, in order to quiet him down so that three college students could
pass through the room for routine, non-emergency purposes, Deputy
Keller knocked Jones to the floor and then jumped on him, crushing
his nose, lacerating his nose and lips, and bruising his ribs. The "total-
ity of [these] circumstances," Garner, 471 U.S. at 8-9, does not justify
"a reasonable officer on the scene" using the force applied by Deputy
Keller. Graham, 490 U.S. at 396. Of course, jurors may choose not
to credit Jones's evidence, but if they do, it would constitute no
improper "second-guessing" to conclude that Deputy Keller violated
Jones's Fourth Amendment right to be free from excessive police
force.
B.
Having determined that Jones has proffered evidence of violation
of a constitutional right, we now consider whether Deputy Keller is
nonetheless entitled to qualified immunity.
____________________________________________________________
6 In addition to the severity of the injuries Deputy Keller inflicted on
Jones, Sheriff Buchanan's testimony that Deputy Keller "made it clear"
that he had hit Jones "with his fist," provides some evidentiary support
for Jones's contention that the level of force was excessive.
15

-- 16 of 32 --

The Supreme Court has recently clarified the appropriate inquiry
on this issue. See Hope v. Pelzer, 536 U.S. 730, 122 S. Ct. 2508,
2515-16 (2002). Qualified immunity "operates`to ensure that before
they are subjected to suit, officers are on notice their conduct is
unlawful.'" Id. at 2515 (quoting Saucier, 533 U.S. at 206). For a con-
stitutional right to be clearly established, "its contours `must be suffi-
ciently clear that a reasonable official would understand that what he
is doing violates that right. This is not to say that an official action
is protected by qualified immunity unless the very action in question
has previously been held unlawful . . . ; but it is to say that in light
of pre-existing law the unlawfulness must be apparent.'" Id. (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987) (citations omitted)).
The standard is again one of objective reasonableness: the "salient
question" is whether "the state of the law" at the time of the events
at issue gave the officer "fair warning" that his alleged treatment of
the plaintiff was unconstitutional. Hope, 122 S. Ct. at 2516.
"[O]fficials can still be on notice that their conduct violates estab-
lished law even in novel factual circumstances." Id. (referencing
United States v. Lanier, 520 U.S. 259 (1997)). Although earlier cases
involving "fundamentally similar" or "materially similar" facts "can
provide especially strong support for a conclusion that the law is
clearly established, they are not necessary to such a finding." Id. Even
though the facts of a prior case may not be "identical," the reasoning
of that case may establish a "premise" regarding an unreasonable use
of force that can give an officer fair notice that his conduct is objec-
tively unreasonable. Hope, 122 S. Ct. at 2517.
Ten years before Deputy Keller's November 1999 use of force
against Jones, the Supreme Court in Graham v. Connor had clearly
established that all claims of excessive force in the course of any sei-
zure of a free person must be analyzed under an "objective reason-
ableness" standard, taking into account the factors discussed above.
Graham, 490 U.S. at 395-96. Both before and after November 1999,
courts have consistently applied the Graham holding and have consis-
tently held that officers using unnecessary, gratuitous, and dispropor-
tionate force to seize a secured, unarmed citizen, do not act in an
objectively reasonable manner and, thus, are not entitled to qualified
immunity.
16

-- 17 of 32 --

So it is here. Jones has proffered evidence that Deputy Keller
severely injured him by knocking him to the floor and jumping on
him, even though Jones, although drunk and using foul language, was
unarmed, handcuffed, and alone in a secured room in the sheriff's
headquarters, having come there voluntarily and not under arrest or
suspected of any crime. In reported cases prior to November 1999 and
involving conduct that took place well before then, we and other
courts have repeatedly denied qualified immunity to law enforcement
officers in similar circumstances. See, e.g., Rowland v. Perry, 41 F.3d
167 (4th Cir. 1994); Rambo v. Daley, 68 F.3d 203 (7th Cir. 1995).
Indeed, courts have denied qualified immunity to police officers
when the officer's use of force might seem to be more justified than
Deputy Keller's, for instance because the officer employed force
against a person, who, unlike Jones, was suspected of criminal activ-
ity or resisting arrest. See, e.g., Kane v. Hargis, 987 F.2d 1005 (4th
Cir. 1993); Mayard v. Hopwood, 105 F.3d 1226 (8th Cir. 1997).
Courts have also denied qualified immunity when an officer's force
might have seemed objectively reasonable because that force resulted
in less severe injuries to the secured person than those suffered by
Jones. See, e.g., Alexis v. McDonald's Restaurants of Mass., Inc., 67
F.3d 341 (1st Cir. 1995); McDowell v. Rogers, 863 F.2d 1302 (6th
Cir. 1988). Thus, the law at the time of this incident — November
1999 — certainly provided "fair warning" to a police officer that he
was not free to use force in the manner Jones contends Deputy Keller
did.
For example, in 1994, we considered an excessive force claim aris-
ing out of an incident occurring in November 1991. See Rowland v.
Perry, 41 F.3d 167 (4th Cir. 1994) (cited with approval in Saucier,
533 U.S. at 210 (Ginsburg, J., concurring in the judgment)). In that
case, Officer Perry saw a woman at a bus station ticket window drop
a five dollar bill, which the plaintiff, Otha Rowland, picked up and
pocketed without attempting to return it to the woman. Id. at 171.
Although Officer Perry then immediately asked Rowland to return the
bill, Rowland "simply waved the money in the face of [the] openly
distressed and tearful" woman and a ticket window attendant inter-
preted Rowland's acts "as a crude proposition to [the woman] rather
than an attempt to return the money." Id. When Rowland left the bus
station, Officer Perry followed him, having confirmed that he had not
17

-- 18 of 32 --

returned the money. Id. According to Officer Perry, not until Rowland
began to run away did he administer force, "throwing his weight
against Rowland's right leg and wrenching [Rowland's] knee," "seri-
ously" injuring it. Id. at 172, 174. Thus, Officer Perry suspected Row-
land of a crime (albeit a minor one) and maintained that Rowland
attempted to flee and resisted arrest. Nevertheless, given that Row-
land contended that he had never run away and the record provided
"no suggestion that Rowland was armed or that Perry suspected he
might be," we held that a jury could find that "no reasonable officer
could have believed [Officer Perry's] conduct to be lawful." Id. at
174. Accordingly, we held in 1994 both that Rowland had stated an
excessive force claim and that Officer Perry was not entitled to quali-
fied immunity.
Similarly, a year earlier, in Kane v. Hargis, 987 F.2d 1005 (4th Cir.
1993), we considered an excessive force claim arising out of conduct
taking place in August 1990. In Kane, Officer Hargis stopped the
plaintiff after observing her "erratic driving" and, when she admitted
she had been drinking, he arrested her. Id. at 1006. According to Offi-
cer Hargis, Ms. Kane then went "berserk," resisted arrest, and
attempted to flee. Id. at 1007. Ms. Kane acknowledged that "she
attempted to resist arrest and to flee," but she maintained that the offi-
cer, who substantially outweighed her, "reacted to her actions by pin-
ning her . . . to the ground" and, after he had secured her, "repeatedly
pushed [her] face into the pavement, cracking three of her teeth, cut-
ting her nose, and bruising her face." Id. at 1006-08. Thus, once again
even though the plaintiff admitted criminal culpability and resisted
arrest, construing the remaining facts "in the light most favorable to
the plaintiff," we held both that the plaintiff had set forth an excessive
force claim and that the officer was not entitled to qualified immunity.
Id. at 1008. We reasoned that, if a jury accepted the plaintiff's testi-
mony, it "would have been `apparent' [in 1990] to a reasonable offi-
cer" that his use of force was excessive because, after the officer had
secured the plaintiff, she did not pose a threat to him and any addi-
tional use of force was unreasonable. Id.
A number of our sister circuits similarly so held well prior to
November 1999. For example, in Alexis v. McDonald's Restaurants
of Mass., Inc., 67 F.3d 341, 345, 352-53 (1st Cir. 1995), the First Cir-
cuit, citing Rowland, reversed summary judgment on qualified immu-
18

-- 19 of 32 --

nity grounds to an officer who removed the plaintiff, charged with
trespass, from a restaurant, handcuffed her, and dragged her to a
police car, bruising her legs, when plaintiff offered testimony that she
posed no threat to the officers or the public and did not resist arrest.
Similarly, in Mayard v. Hopwood, 105 F.3d 1226, 1227-28 (8th Cir.
1997), the Eighth Circuit reversed a grant of summary judgment to an
officer who slapped and punched a suspect, in handcuffs and leg
restraints, even though the suspect had, prior to being completely
restrained, kicked and hit an officer, physically resisted arrest, and
shouted and screamed at officers. See also Goff v. Bise, 173 F.3d
1068, 1074 (8th Cir. 1999) (in April 1999 opinion, upholding jury
verdict of excessive force based on (disputed) evidence that, after
officer and mayor handcuffed plaintiff, they then threw him to ground
and choked him when he had "committed no crime" and "posed a
threat to no one"); Smith v. Mattox, 127 F.3d 1416, 1418-19 (11th Cir.
1997) (denying qualified immunity because the unconstitutionality of
use of force was "readily apparent to the offic [er], notwithstanding the
lack of caselaw" precisely on point, when officer, with "a grunt and
a blow," broke arm of the unresisting suspect in course of handcuffing
him, even though suspect had, minutes before use of force, threatened
officer with baseball bat, run from police, and actively resisted arrest);
Rambo v. Daley, 68 F.3d 203, 205 (7th Cir. 1995) (affirming denial
of qualified immunity and stating that "[t]he Constitution clearly does
not allow police officers to force a handcuffed, passive suspect into
a squad car by breaking his ribs," in case in which drunk driving sus-
pect verbally resisted arrest); Butler v. Norman, 992 F.2d 1053, 1055
(10th Cir. 1993) (affirming denial of qualified immunity to officers
who assaulted handcuffed suspect); Dixon v. Richer, 922 F.2d 1456,
1458 (10th Cir. 1991) (affirming denial of qualified immunity to offi-
cers who assertedly assaulted citizen, who was not suspected of any
crime or of being armed and did not make any "aggressive moves or
threats," after police had secured him by placing his hands against
vehicle); McDowell v. Rogers, 863 F.2d 1302, 1303-04, 1307 (6th
Cir. 1988) (holding, even prior to Graham, officers not entitled to
summary judgment when they hit handcuffed suspect, who had tried
to cash stolen check and ran from police, even though suspect suf-
fered no "serious or permanent injury"). Indeed, Deputy Keller has
not cited a single case in which a court, after finding that an assertedly
secured plaintiff has alleged a Fourth Amendment excessive force
19

-- 20 of 32 --

claim similar to the one at issue here, has nevertheless granted the
defendant officer qualified immunity.7
Thus, years before 1999, it was clearly established that a police
officer was not entitled to use unnecessary, gratuitous, and dispropor-
tionate force against a handcuffed, secured citizen, who posed no
threat to the officer or others and had neither committed, nor was sus-
pected of committing, any crime. The facts proffered by Jones — that
Deputy Keller knocked him to the ground and jumped on him, caus-
ing severe injuries, when he, although drunk and disruptive, was
handcuffed, in a secured room, neither suspected of any crime nor
fleeing a crime scene — constitute just such an unreasonable use of
force.
We note that the Eleventh Circuit recently considered very similar
facts, arising out of an incident in 1998, and concluded that even a
plaintiff who had committed a crime and been arrested nonetheless
stated an excessive force claim, and that it "was clearly established"
that the officer's conduct, as described by the plaintiff, violated her
constitutional rights. See Vinyard, 311 F.3d at 1355. As the court
explained,
____________________________________________________________
7 The dissent seeks to distinguish some (but, by no means all) of the
cases on which we rely, contending that they deal with persons "who, in
contrast to Jones, were not acting dangerously or aggressively" at the
time the police used force. Post at 30 n.3. The asserted distinction utterly
fails because if we take the facts in the best light for Jones, as we must
at this juncture, Jones too was "not acting dangerously or aggressively."
Indeed, prior to Deputy Keller knocking Jones to the floor and breaking
his nose, Jones, although drunk and using foul language, was unarmed,
handcuffed, alone in a secured room in a police station, and neither under
arrest nor suspected of any crime; thus, he was "acting" a great deal less
"dangerously and aggressively" than the plaintiffs in other cases in which
courts have upheld excessive force claims. See, e.g., Smith, 127 F.3d at
1418-19 (prior to challenged police force, plaintiff had threatened officer
with baseball bat and resisted arrest); Mayard, 105 F.3d at 1227-28 (prior
to challenged police force, plaintiff kicked and hit officer and resisted
arrest); Kane, 987 F.2d at 1007 (prior to challenged police force, plaintiff
resisted arrest and attempted to flee).
20

-- 21 of 32 --

no objectively reasonable police officer could believe that,
after [the plaintiff-arrestee] was under arrest, handcuffed
behind her back, secured in the back seat of a patrol car with
a protective screen between the officer and the arrestee, an
officer could stop the car, grab such arrestee by her hair and
arm, bruise her and apply pepper spray to try to stop the
intoxicated arrestee from screaming and returning the offi-
cer's exchange of obscenities[.]
Id. These words have equal applicability here; we need only change
the Vinyard court's language slightly:
no objectively reasonable police officer could believe that,
after a citizen, not under arrest, was settled in the sheriff's
headquarters, handcuffed behind his back, secured in the
processing room with locked doors between the officer and
the citizen, the officer could knock the citizen to the floor,
jump on him, break his nose, lacerate his face, and bruise his
ribs to try to stop the intoxicated citizen from screaming and
returning an officer's use of obscenities.
Therefore, taking the facts in the present record in the light most
favorable to Jones, we cannot conclude that Deputy Keller is entitled
to qualified immunity as a matter of law.8
____________________________________________________________
8 The dissent contends that Robles v. Prince George's County, Mary-
land, 302 F.3d 262 (4th Cir. 2002), cert. denied, ___ U.S. ___, 2003 WL
271834 (2003), compels the conclusion that "Deputy Keller is entitled to
qualified immunity." Post at 23. Given that Robles involved not only
very different facts but also a wholly different Constitutional provision,
the dissent's heavy reliance on, and extended discussion of, Robles is as
puzzling as it is unpersuasive. In Robles, Prince George's County police
officers validly arrested Nelson Robles for an offense committed in a
neighboring county and asked officers in that county to pick him up;
when they refused to do so, the Prince George's County officers tied
Robles to a metal pole at night and then anonymously reported his loca-
tion to officers in the neighboring county, who picked him up 10 minutes
later. Under circuit precedent, in order to establish a constitutional viola-
tion, Robles, as a validly arrested pretrial detainee, had to meet a far
more rigorous standard than that at issue here. Rather than simply prov-
21

-- 22 of 32 --

III.
For all of these reasons, the trial court's grant of summary judg-
ment is reversed and the case is remanded for further proceedings
consistent with this opinion.9
____________________________________________________________
ing that the police acted unreasonably in violation of the Fourth Amend-
ment, Robles had to prove that the police had violated the Due Process
Clause, i.e., their misconduct amounted to punishment and resulted in
more than de minimis injury to him. Id. at 269. This is a difficult burden
for any plaintiff, but particularly so for Robles since 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. Robles
v. Prince George's County, Maryland, 308 F.3d 437 (4th Cir. 2002)
(Wilkinson, J., concurring in the denial of rehearing en banc). Neverthe-
less, this court held that Robles had established a constitutional violation
but, given the lack of any prior cases factually close to Robles' and the
closeness of the question of whether he suffered more than de minimis
injury, it also held that it could not conclude that "clearly established
law" gave the officers "fair warning" that their conduct violated not just
state law but also the Constitution. See Robles, 302 F.3d at 270-71. Even
if one does not agree with this unanimous decision upholding the grant
of qualified immunity to the officers or the full court's decision (10-1)
denying rehearing en banc, Robles does not control the case at hand.
Unlike the thankfully unusual conduct in Robles, the present case con-
cerns a garden variety excessive force claim under the Fourth Amend-
ment. While no prior case law involved conduct like that in Robles,
countless courts, as noted above, have previously held that the conduct
alleged here is unconstitutional. If Jones can prove these allegations, this
prior case law certainly provided Deputy Keller (unlike the officers in
Robles) with "fair warning" that such conduct violated the Constitution;
in such circumstances, an officer is not entitled to qualified immunity.
See Hope, 122 S. Ct. at 2515-16.
9 On appeal, Jones acknowledges that his "claim is primarily one for
excessive force under § 1983" and that his state claims are coextensive
with his federal claim. Brief of Appellant at 19 n.2; Reply Brief at 16.
Therefore, as in Rowland, 41 F.3d at 174, we reinstate any "parallel"
state law claims. Furthermore, given our holding that summary judgment
in favor of Deputy Keller was inappropriate, we reinstate the derivative
claim against Sheriff Buchanan in order to allow the magistrate judge to
address it in the first instance at the appropriate time.
22

-- 23 of 32 --

REVERSED AND REMANDED
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 Deputy Keller
is entitled to qualified immunity in this case. Because the majority
fails to follow our precedent in Robles, and because that decision dic-
tates that Deputy Keller is protected by the doctrine of qualified
immunity, I dissent.
The police conduct at issue in Robles was, under law, entirely inde-
fensible. Prince George's County police officers arrested Nelson
Robles on an outstanding traffic warrant issued by neighboring Mont-
gomery 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 (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 enforce-
ment purpose, was unconstitutional.
The court in Robles analyzed the plaintiff's claim under the Four-
teenth 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 mani-
festly 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.
23

-- 24 of 32 --

The majority states that Jones "never pushed, kicked, or threatened
anyone," ante at 14, 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 13. These statements are prem-
ised 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 testi-
fied, he was fingerprinting college students for volunteer work and he
needed to walk the students past Jones in order to get to the finger-
printing 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 20. If the majority does so believe, then
such a belief is naive. One does not need experience to know differ-
ently, 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 v. Sanders, 994
F.2d 200, 209 (5th Cir. 1993) ("Sander's argument is entirely depen-
dent 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 offi-
cers 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 danger-
ousness, 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 Kel-
24

-- 25 of 32 --

ler's take-down, while it had the unfortunate, and unforseen, conse-
quence 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
minimis injury prong of Bell v. Wolfish. Ante at 21-22 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 con-
ceded 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 psycho-
logical 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 seri-
ousness 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
____________________________________________________________
1 The majority suggests that Jones was really trying to bring his hands
forward "to alleviate breathing problems," ante at 14, 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 reason-
able officer would have observed Jones moving his cuffed hands from
behind him to his front. The fact that Jones would have had more mobil-
ity 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 motivat-
ing desire to breathe more easily would not have been apparent to an
observing officer. A reasonable officer need not be telepathic.
25

-- 26 of 32 --

injury. Nothing in the brief portion of the opinion devoted to the qual-
ified 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 interpreta-
tion of Robles, is not even mentioned in the qualified immunity analy-
sis 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 prong 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), with 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
____________________________________________________________
2 In its discussion of the trial judge's remittitur 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, actu-
ally demonstrates that the extent of injury (beyond de minimis) deter-
mined in any part, much less large part, the panel's disposition on the
qualified immunity question.
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(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 infre-
quently, the fullness, depth, and length of the subsequent writing con-
firms that it is nothing short of a rewriting of the panel opinion from
scratch in response to arguments and authorities that were not consid-
ered or addressed by the panel.
These attempts at revision of binding panel opinions typically fol-
low 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 alto-
gether any further review. But because these kinds of revisionist writ-
ings 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 cor-
rect 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 formal 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 deci-
sion. 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
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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 cor-
rection 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 peti-
tion for rehearing en banc) that the panel has erred in the material
facts predicate for its disposition or in its analysis of the law, rehear-
ing 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 impor-
tance and seemingly unanswerable within the four corners of the anal-
ysis 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 omis-
sions in the panel opinion through a separate writing 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 review-
ing court as less deserving of further consideration by the gloss super-
imposed 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
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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 princi-
ple of law is that in the original panel opinion or that in the later opin-
ion. 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 writ-
ings 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 of 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 dis-
cussed 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 immu-
nity principles have been applied by the majority in this case than
were applied by the panel in Robles. Although it would be of no rele-
vance 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,
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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 con-
trol of a drunk, verbally belligerent, and angry arrestee4 who was dis-
____________________________________________________________
3 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. McDon-
ald'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.
4 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
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rupting the police department's operations, disobeying direct orders
to be quiet, and attempting to free his hands, is not entitled to quali-
fied 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.
____________________________________________________________
conclusion that Jones "had neither committed, nor was suspected of com-
mitting, any crime," ante at 20, 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.
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