876 F.2d 477 (5th Cir. 1989), 86-3662, Johnson v. Morel

Docket Nº:86-3662.
Citation:876 F.2d 477
Party Name:James JOHNSON, Jr., Plaintiff-Appellant, v. D. MOREL, et al., Defendants-Appellees.
Case Date:July 05, 1989
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 477

876 F.2d 477 (5th Cir. 1989)

James JOHNSON, Jr., Plaintiff-Appellant,


D. MOREL, et al., Defendants-Appellees.

No. 86-3662.

United States Court of Appeals, Fifth Circuit

July 5, 1989

Page 478

Birch P. McDonough, New Orleans, La., for plaintiff-appellant.

Nat G. Kiefer, Jr., New Orleans, La., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.



Guided by the Supreme Court's decision in Graham v. Connor, --- U.S. ----, 109 S.Ct. 1865, 104 L.Ed.2d 443 1989, we hold that the district court erred in granting summary judgment and that, on these facts, Johnson is entitled to go to trial on two federal constitutional claims, but not on a third such claim. Johnson's pendent state law claims must also be reinstated.


To decide his appeal, we must read the summary judgment evidence, including Johnson's affidavit, in the light most favorable to Johnson's claims. So read, his assertions reprise the "night rider" cases of an earlier day. Johnson was crossing the Mississippi River Bridge along with four passengers in an old car. Johnson and his passengers were all black men. The car stalled. Another driver began pushing Johnson's car up toward the bridge's crown. Officer Morel, a white man, waved off the good Samaritan. Morel began pushing the stalled car with his police car. His assistance was instantly coupled to racial epithets and harassment. Morel used his loudspeaker to call the black men "niggers," to insult their intelligence, and to shout vile racial slurs. The men in the old car shouted to Morel that they feared he was pushing them too fast because their old car's brakes were defective. They told him they were worried that they might crash as they gathered speed on the bridge's downward slope. Morel's reaction was to broadcast more racial slander. When they reached the foot of the bridge, Johnson got out of his car to submit to Morel. The officer continued his degrading verbal abuse and said he would make an example of Johnson. He searched Johnson roughly, cuffed his hands, placed him under arrest and ridiculed him. Morel applied the handcuffs so tightly that they not only broke the skin, but left apparently permanent scars on Johnson's wrists and disabled him from his employment for about two weeks. According to Johnson's story, Officer Morel used his badge to harass and humiliate him because he was black.

We do not pass upon the accuracy of Johnson's version of these events. For purpose of the appeal, we must assume it is true. In it are two distinct constitutional claims, both raised by Johnson's Sec. 1983 complaint that Officer Morel deprived him of constitutional rights "guaranteed to him by the Fourth and Fourteenth Amendments." One claim is for a denial of equal protection. The second claim is based solely upon the allegedly excessive use of force

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by a police officer in arresting him. Graham teaches each constitutional claim identified must be judged by reference to its own specific constitutional standard.


To state a claim under the Equal Protection Clause, a Sec. 1983 plaintiff must allege that a state actor intentionally discriminated against the plaintiff because of membership in a protected class. Washington v. Davis, 426 U.S. 229, 247-48, 96 S.Ct. 2040, 2051-52, 48 L.Ed.2d 597 (1976). Johnson's claim appears to do so. He alleges that Morel humiliated and harassed him, and that the insults and harassment were explicitly racist. If Johnson is able to show a constitutional violation, he is then entitled to damages for his injury, including any proved emotional distress resulting from the violation. Carey v. Piphus, 435 U.S. 247, 264, 98 S.Ct. 1042, 1052, 55 L.Ed.2d 252 (1978).

Because the district court did not comment directly upon Johnson's equal protection claims, we need not examine those claims further. We do not--indeed, we cannot--pass on the truth of those claims. Nor do we express any opinion upon the merits of Johnson's claims. The elimination of racial discrimination remains at the heart of the Fourteenth Amendment. The Constitution does not tolerate intentional police harassment of racial minorities. The facts adduced entitle Johnson to an opportunity to prove that his right to equal protection was abridged.


Johnson also alleges that Officer Morel denied his liberty interest in being free of an excessive use of force contrary to the Fourth Amendment. Apart from equal protection considerations, the evidence does not suggest and Johnson does not claim that the arrest was illegal; nor does he assert he was entitled not to be handcuffed. The measure which Graham sets for gauging this claim is as follows:

[A]ll claims that law enforcement officers have used excessive force--deadly or not--in the course of an arrest, investigatory stop, or other "seizure" of a free citizen should be analyzed under the Fourth Amendment and its "reasonableness" standard, rather than under a "substantive due process" approach. Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of "substantive due process," must be the guide for analyzing these claims. [footnote omitted]

The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.... The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving--about the amount of force that is necessary in a particular situation.

[T]he "reasonableness" inquiry in an excessive force case is an objective one: the question is whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. An officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional. [citations omitted].

Graham sustained a broken foot and claimed permanent physical impairment as a result of mistreatment in the course of his arrest. Johnson's injuries are of a different order. A fact issue remains to be resolved as to whether Johnson's injuries were constitutionally significant.

To determine whether a constitutionally actionable "significant injury" has been inflicted, the court must consider only the injuries resulting directly from the constitutional wrong. There can be a constitutional violation only if significant injuries

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

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

(1) a significant injury, 1 which

(2) resulted directly and only from the use of force that was clearly excessive to the need; and the excessiveness of which was

(3) objectively unreasonable.

If any one of these elements fails, so too does the plaintiff's claim. We overrule all previous decisions of this circuit to the contrary.

In this case, Johnson may show an unconstitutional use of excessive force, as distinguished from an equal protection violation, by presenting evidence that his injuries were significant, and that Morel used unreasonable, excessive force to inflict those injuries. The evidence in Johnson's affidavit creates fact issues on both points.

To the extent that Johnson asserts a claim based on substantive due process it cannot be sustained under Graham.

For the reasons stated, Johnson must be permitted to go forward with his claims for equal protection and unreasonable seizure. The district court should also reinstate Johnson's pendent state law claims for recovery against Morel's statutory bond and for negligent or wrongful acts. United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). The summary judgment granted by the district court is reversed and the case is remanded.


ALVIN B. RUBIN, Circuit Judge, with whom THORNBERRY, REAVLEY, POLITZ, KING, JOHNSON and WILLIAMS, Circuit Judges, join concurring in part and concurring in the judgment:

Equity delights to do justice, an ancient axiom goes, and not by halves. Federal courts should be equally diligent to vindicate constitutional rights fully, not by quotient.

I join in the court's judgment insofar as it reverses the judgment summarily entered and remands the case for further proceedings. Johnson's claims that he was denied equal protection of the law by Morel's actions during--as well as, I take it, before and after--his arrest, and that Morel violated his Fourth Amendment rights by using excessive force in the course of the investigatory stop and arrest both merit reinstatement. I respectfully dissent, however, from the majority's imposition of novel requirements for invocation of the Fourth Amendment that it adds to those stated only days ago by the Supreme Court in Graham v. Connor. 1

The majority holds that a police officer does not violate the Fourth...

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