 Michael Bailey; Jane Bailey; Billy Bailey v.  Ca-00-8-5-H D. H. Kennedy; D. B. Whitley; Mike Crisp; City of Hickory

Filed: February 20, 2004
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 MICHAEL BAILEY; JANE BAILEY; BILLY
BAILEY,
Plaintiffs-Appellees,
No. 02-1761
v.  CA-00-8-5-H
D. H. KENNEDY; D. B. WHITLEY;
MIKE CRISP; CITY OF HICKORY,
Defendants-Appellants. 
On Petition for Rehearing and Rehearing En Banc
Appellants have filed a petition for rehearing and rehearing en
banc.
Judges Williams, Traxler and Senior Judge Hamilton voted to
deny.
A member of the Court requested a poll on the petition for rehear-
ing en banc. The poll failed to produce a majority of the judges in
active service in favor of rehearing en banc. Judge Widener voted in
favor of rehearing. Chief Judge Wilkins and Judges Wilkinson, Nie-
meyer, Luttig, Williams, Michael, Motz, Traxler, King, Gregory,
Shedd and Duncan voted against rehearing en banc. Judge Williams
wrote a separate opinion concurring in the denial of rehearing in
which Judge Traxler and Senior Judge Hamilton concurred. Judge
Widener wrote an opinion dissenting in denial of rehearing.
The Court denies the petition for rehearing and rehearing en banc.

-- 1 of 3 --

Entered at the direction of Judge Williams for the Court.
For the Court,
/s/ Patricia S. Connor
CLERK
WILLIAMS, Circuit Judge, concurring in the denial of rehearing en
banc:
Respectfully, I disagree with Judge Widener’s characterization of
the panel’s opinion in this case. As the panel opinion clearly reflects,
the district court found, in the light most favorable to Bailey, that
when Officer Whitley arrived at Bailey’s home, he found Bailey eat-
ing lunch, spoke with him for approximately five minutes, and then,
apparently satisfied, voluntarily left the house. See Bailey v. Kennedy,
349 F.3d 731, 734 (4th Cir. 2003). Then, Officer Kennedy "knowing
only that Officer Whitley had exited the house and that Officer Whit-
ley said [at most] ‘we’re going to have to do something,’ grabbed
Michael almost as soon as he opened the door." Id. at 740. A review
of the panel opinion clearly shows, contrary to my colleague’s claim,
that the court’s holding does not turn on Bailey’s denial of the suicide
report.
WIDENER, Circuit Judge, dissenting:
I.
I respectfully dissent to the denial of en banc consideration of this
important question. I address only the federal question of qualified
immunity, on May 27, 1998, of police officers Kennedy and Whitley
in the performance of their discretionary duty.
It is undenied and acknowledged by all that the 911 call relayed to
Officers Kennedy and Whitley was that:
Mike Bailey advised a neighbor that he is going home to
commit suicide. He is intoxicated and has been depressed.
Slip p.4
2 BAILEY v. KENNEDY

-- 2 of 3 --

The officers found Bailey at home and intoxicated and believed, in
the words of Whitley, that they "had to do something," although Bai-
ley denied that he was suicidal. Obviously, they believed, and it is
undisputed that they believed, that they should take Bailey into cus-
tody, as a danger to himself, or for a mental examination.
The holding of this court at issue here is that there was no probable
cause for the officers to have believed it was their obligation to take
Bailey into custody.
Without more, the 911 report cannot bear the weight that
the officers would place on it. ‘The law does not permit ran-
dom or baseless detention of citizens for psychological eval-
uations.’ Slip p.16
The panel thus holds that when a person is reported to have expressed
an intention to commit suicide, is intoxicated, and has been depressed,
an investigating officer has a Constitutional obligation to walk away
and leave the prospective suicide upon his simple denial of suicidal
intent.
In my opinion, the officers in this case had every right to believe
that they should take Bailey into their custody. Rarely, if ever, will
a person, serious about suicide, admit the same upon an officer’s
inquiry. To require police officers, by inaction, to assume the risk of
suicide is simply not reasonable, and in my opinion, is unlawful.
Absent bad faith on the part of Officers Kennedy and Whitley at the
time they sought to make the arrest, and there is no such claim here,
their claims of qualified immunity ought to be sustained.
II.
The post-factum analysis of the panel, that its "holding does not
turn on Bailey’s denial of the suicide report" is belied by the panel’s
rejection of the suicide report, as quoted above in this dissent. Just as
importantly, at the time the officers sought to take Bailey into custody,
there is nothing else for the holding of the panel to turn on. The allu-
sion of the panel to the acts of the officers as a "random or baseless
detention," is unsupported by the record, I think.
3 BAILEY v. KENNEDY

-- 3 of 3 --