774 F.2d 1252 (4th Cir. 1985), 83-6556, Kidd v. O'Neil

Docket Nº:83-6556.
Citation:774 F.2d 1252
Party Name:Dennis Ray KIDD, Appellant, v. Robert O'NEIL; Mike Lomonaco; Fairfax County Police Dept., Appellees.
Case Date:September 23, 1985
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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774 F.2d 1252 (4th Cir. 1985)

Dennis Ray KIDD, Appellant,


Robert O'NEIL; Mike Lomonaco; Fairfax County Police Dept.,


No. 83-6556.

United States Court of Appeals, Fourth Circuit

September 23, 1985

Argued July 13, 1984.

John T. Jessee, Roanoke, Va. (Woods, Rogers, Muse, Walker & Thornton, Roanoke, Va., on brief), for appellant.

Edward E. Rose, III, Asst. County Atty., Fairfax, Va. (David T. Stitt, County Atty., Fairfax, Va., on brief), for appellees.

Before PHILLIPS, MURNAGHAN and ERVIN, Circuit Judges.

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This appeal presents fundamental issues respecting the source and scope of constitutional rights of protection against, and statutory remedies for, the excessive use of force by state police in making arrests. Here the district court, expressing reservations about both the source and scope of any such right and of any consequent remedy, and professing inability to apply what it considered to be this court's unclear precedents in the matter, summarily dismissed, on legal grounds, such an excessive force claim brought under 42 U.S.C. Sec. 1983. We reverse, on the basis that the fourth and fourteenth amendments provide general protection against such conduct, and we remand for further proceedings to determine whether the protection is available here.


In a pro se complaint, Dennis Ray Kidd alleged that in attempting to arrest him on April 15, 1983, defendants Robert O'Neill and Mike Lomonaco, Fairfax County, Virginia, police officers "brutally" and "severely" beat, kicked, and maced him while he was handcuffed, and that this resulted in bruises, a head gash requiring stitches, and continued headaches, dizziness and blurred vision. By answer and then by summary judgment affidavits, the police officer defendants admitted that one struck Kidd with a nightstick and that both maced him, but they asserted that they used only the force needed to subdue him; that Kidd was violently (and in the end, successfully) resisting arrest, that only one of his hands was handcuffed, and that with the other he was attempting to take a gun from one of the officers. By a responsive counter-affidavit, Kidd added minor factual details to his pleaded version of events, repeated in variant form his conclusory pleading allegations of "brutality" and "excessiveness," and directly denied, albeit conclusorily, the defendants' assertions that they acted reasonably and "in self-defense."

On this state of the record, the district court entertained defendants' motion for summary judgment, and granted it. Essentially declining to consider whether on the record there existed any genuine issue of material fact respecting the claim of unconstitutionally excessive force, the district court ruled that as a matter of law no cognizable claim of constitutional violation had been advanced by Kidd. This ultimate conclusion was based on the following line of reasoning, which, because of its importance to our decision, we summarize in some detail.

Not every act by a state agent that would constitute a violation of state tort law constitutes a deprivation of constitutional right simply because the act is committed by a state official, citing, inter alia, Baker v. McCollan, 443 U.S. 137, 140 [99 S.Ct. 2689, 2692, 61 L.Ed.2d 433] (1979). Deciding when a "state tort" of battery becomes a "constitutional tort" cannot properly be done simply by attempting to assess the degree of its severity in terms of the state agent's motivation and the victim's harm. This has now been demonstrated by the failure of the Fourth Circuit to provide a "workable guideline," a "practical standard," for differentiating between a physical striking that amounts to a mere "state tort" and one that involves "constitutional deprivation." This is illustrated by the standards articulated by that court respectively in King v. Blankenship, 636 F.2d 70, 73 (4th Cir.1980) (excessive force in subduing convicted prisoner) and in Hall v. Tawney, 621 F.2d 607, 613 (4th Cir.1980) (excessive force in disciplining public school student).

This suggests that the underlying theory of Hall and King is flawed, that the degree of severity of batteries by state agents, in terms of agent-motivation and victim harm, is not the proper test of constitutional deprivation. Indeed, to make degree of severity the test in such cases leads to the result forbidden by the Supreme Court of using Sec. 1983 to "create a font of tort law," citing Paul v.

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Davis, 424 U.S. 693, 701 [96 S.Ct. 1155, 1160, 47 L.Ed.2d 405] (1976).

The proper test of constitutional deprivation in state agent battery cases is rather to be found in a line of district court decisions out of the Eastern District of Virginia that specifically reject the perceived Fourth Circuit precedents as legally flawed and practically unworkable, e.g., Dandridge v. The Police Department of the City of Richmond, 566 F.Supp. 152 (E.D.Va.1983) (excessive force in arrest); Sellers v. Roper, 554 F.Supp. 202 (E.D.Va.1982) (excessive force in disciplining prison inmate). Under these district court decisions, a battery by a state agent amounts to a constitutional deprivation cognizable under 42 U.S.C. Sec. 1983 only if "it infringes a specific constitutional right ... [and] [a] battery by a state officer can only infringe a specific constitutional right if the officer intended to infringe that right through the battery or could reasonably have foreseen ... the result," citing Dandridge, 566 F.Supp. at 160.

An example of such an "intended deprivation" of "specific right" would be a blow, of whatever degree, consciously intended by the state agent to retaliate for the victim's taking legal action against the agent; this would constitute a deprivation of the victim's specific [first amendment] right to petition for "a redress of grievances." On the other hand, a "guard's beating of a prisoner, standing alone, does not [constitute] a constitutional [deprivation]," no matter the severity, [presumably because "standing alone" such a "beating" is unrelated in purpose to any known, specific constitutional right].

On the authority of Sellers, 554 F.Supp. 202, this critical requirement of "specific intent to deprive of a known constitutional right" in Sec. 1983 physical battery cases is traceable to Screws v. United States, 325 U.S. 91 [65 S.Ct. 1031, 89 L.Ed. 1495] (1945), and is confirmed in later Supreme Court decisions, e.g., Ingraham v. Wright, 430 U.S. 651 [97 S.Ct. 1401, 51 L.Ed.2d 711] (1977); Baker v. McCollan, 443 U.S. 137 [99 S.Ct. 2689, 61 L.Ed.2d 433] (1979); Parratt v. Taylor, 451 U.S. 527 [101 S.Ct. 1908, 68 L.Ed.2d 420] (1981). In the instant case, it mandates dismissal of Kidd's Sec. 1983 claim because "there are no facts indicating the violation of a constitutional right or that the defendants intended such an infringement by the allegedly excessive force used in the arrest."

J.A. 33-39.

Having disposed of the basic claim of a substantive constitutional violation under the foregoing analysis, the district court then held additionally that no procedural due process claim could be proved because Virginia provides an adequate post-deprivation remedy, for "assault and battery," citing Henderson v. Counts, 544 F.Supp. 149 (E.D.Va.1982). The action was accordingly dismissed as to all defendants and this appeal followed.

On appeal, Kidd does not challenge the district court's rejection of any claim of procedural due process that might have been pleaded, and that question is accordingly not before us. Challenge is confined to the summary dismissal of his claim of deprivation of substantive constitutional right. 1


The district court's legal analysis as applied in this case misinterpreted and misapplied binding precedent, not only of this court but of the Supreme Court. The resulting legal error requires reversal and remand for further proceedings. The court's error has two principal aspects.

The first is the failure to recognize the fourth amendment, through the fourteenth,

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as a direct source of constitutional protection against uses of excessive physical force by state police officers in arresting suspects. If any doubt has existed that the fourth amendment's prohibition against unreasonable seizures of the person protects against the use of excessive force in making arrests as well as against making arrests without probable cause, it has now been laid to rest by the Supreme Court's decision in Tennessee v. Garner, --- U.S. ----, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (Sec. 1983 claim for "seizure" of person by deadly force). 2 The Garner Court flatly rejected the argument that the amendment's protection only runs to the probable cause requirement, holding that "reasonableness depends on not only when a seizure is made, but also how it is carried out." --- U.S. at ----, 105 S.Ct. at 1699. The Court pointed out that the contrary argument "ignores the many cases in which [the Court] ... has examined the reasonableness of the manner in which a search or seizure is conducted." --- U.S. at ----, 105 S.Ct. at 1699.

Not only did the holding in Garner make explicit what has long been at least implicit in such earlier decisions of the Supreme Court as Terry v. Ohio, 392 U.S. 1, 28-29, 88 S.Ct. 1868, 1883-84, 20 L.Ed.2d 889 (1968) (cited for proposition by Garner Court, --- U.S. at ----, 105 S.Ct. at 1699), it also confirmed long-standing authority to the same effect in this circuit. See Jenkins v. Averett, 424 F.2d 1228, 1232 (4th Cir.1970) (Sobeloff, J.) ("shield" of the fourth amendment protects "individual physical integrity" against "wanton" infliction of injury by police in attempt to halt fleeing suspect).

To the extent therefore that the district court's analysis involved the perception that excessive force, "standing alone," in effecting an arrest implicates no specific constitutional right, the court's...

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