Brown v. Glossip

• Decision Date: 04 August 1989
• Docket Number: No. 88-2908,88-2908
• Parties: Jay T. BROWN, Plaintiff-Appellee, v. Deputy Constable John GLOSSIP, et al, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 871

878 F.2d 871

Jay T. BROWN, Plaintiff-Appellee, v. Deputy Constable John GLOSSIP, et al, Defendants-Appellants.

No. 88-2908.

United States Court of Appeals Fifth Circuit.

Aug. 4, 1989.

Scott Lyford, Galveston, Tex., for defendants-appellants.

Gene Hagood, Britt, Todd, Hagood & Clements, Alvin, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before GEE, GARZA, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Deputy Constable John Glossip arrested Jay Brown for reasons not explained in the record before us. Mr. Brown sued Glossip to redress the allegedly unconstitutional use of excessive force. The only issue before us is whether we should uphold Glossip's qualified immunity defense based on the insufficiency of Brown's pleadings to controvert the possibility that Glossip may be entitled to immunity. The district court denied Glossip's motions to dismiss and to stay discovery. Interlocutory appeal of these orders is allowed. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815-17, 86 L.Ed.2d 411 (1985); Geter v. Fortenberry, 849 F.2d 1550, 1552 (5th Cir.1988). We reverse and remand with conditions.

Brown's original petition provides but the barest description of Deputy Constable Glossip's arrest:

On or about the 5th day of February, 1987, Precinct # 3 Deputy Constable John Glossip, approached the Plaintiff's mother's house located in Honeysuckle Street in La Marque, Galveston County, Texas. Your Plaintiff was present at that house at that time but the Plaintiff's mother was not. While there, the Defendant, Deputy Constable John Glossip, among other things, forcibly twisted the Plaintiff's right arm behind his back while in the process of handcuffing the Plaintiff. During this procedure, the said Defendant twisted and pushed the Plaintiff's arm to such a position that Plaintiff's arm was injured internally that resulted in the injuries and required the surgery as more fully set out herein. The incident made the basis of this lawsuit occurred within the territorial limits of Galveston County, Texas.

Elsewhere in the petition, Brown alleges that he was neither violating any state or local laws when arrested, nor did he engage in any assaultive behavior. He alleges there was no probable cause for arrest as he had committed no crime and broken no law. He concludes that Deputy Constable Glossip's conduct in injuring him was entirely unjustified and constituted an unreasonable and excessive use of force, violating 42 U.S.C. Secs. 1983, 1985, 1986 and 1988, and the fourth, eighth and fourteenth amendments. Pendent state claims, not of interest here, were also asserted.

Perhaps because the district court denied Glossip's motion to stay discovery at the same time that it rejected his motion to dismiss, placing both orders on appeal concurrently, we are without the benefit of discovery to add flesh to Brown's skeletal allegations of wrongdoing.

Our conclusions may readily be summarized in three propositions. First, pursuant to the governing law of unconstitutional excessive force, as it was in our Circuit and will be following recent decisions of the Supreme Court and our Court sitting en banc, Brown's allegations state a cognizable cause of action. Second, because the recently decided authorities clearly contemplate the existence of a defense of qualified immunity for law officers engaged in making an arrest, we should likewise require plaintiffs in excessive force claims to plead with specificity why that defense is unavailable in a given case. Third, we reverse and remand this case to the trial court for further pleading that may overcome the defendant's immunity defense. The first two of these propositions require some elaboration.

At the time Brown filed his complaint, the law of our Circuit pertaining to the use of excessive force by police officers was clearly established. Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir.1985), and progeny had followed a tripartite test, founded upon the fourteenth amendment's concept of substantive due process:

(i)f the state officer's action caused severe injuries, was grossly disproportionate to the need for action under the circumstances, and was inspired by malice rather than merely careless or unwise excess of zeal so that it amounted to an abuse of official power that shocks the conscience, it should be redressed under Section 1983. (emphasis added)

Our occasional deviations from this holding, ¹ concerning the degree of severity of injury that might justify relief, eventually caused our Court to reconsider Shillingford en banc. Johnson v. Moral, 843 F.2d 846, vacated pending en banc rehearing, 843 F.2d 849, en banc opinion, 876 F.2d 477 (5th Cir.1989). Assuming that Shillingford's severe injury standard be taken literally, and that a plaintiff alleged a severe injury during an arrest, then the other two requirements, malice and gross disproportion between the officer's need for action and the harm inflicted, could be inferred in a given case. If, therefore, Brown's injury is "severe" under Shillingford, and if no immunity defense was available to Glossip, then Brown's pleadings are sufficient. We believe that the allegations of an internal arm injury that required surgery in the past and will do so in the future and has caused Brown to suffer a loss of earning capacity sufficiently plead a severe injury as understood by Shillingford. ²

The law of unconstitutional excessive force did not, however, stand still after Brown filed this lawsuit. Very recently, the Supreme Court has held that the fourth amendment governs claims of excessive force during arrest, and that, giving deference to the need for split-second decision making by police officers in often dangerous situations, their actions must be judged by standards of objective reasonableness. Graham v. Connor, --- U.S. ----, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Thus, two of Shillingford's components, subjective malice and gross disproportion of the officer's conduct, have been modified by Graham's, fourth amendment standard. In the wake of Graham, our Court has further clarified that an injury actionable under a fourth amendment standard must be "significant." Johnson v. Morel, 876 F.2d at 480. The precise difference between the new constitutional standards and those previously espoused by our Court remain to be explored. It is clear, however, that the new constitutional test is not more onerous than that of Shillingford. Mutatis mutandis, the sufficiency of Brown's allegations under Shillingford renders them sufficient to state a constitutional claim pursuant to Graham.

An additional wrinkle derives from the now-governing authorities. Although no claim of qualified immunity was raised in Graham, the Supreme Court expressly contemplated its application in excessive force Fourth Amendment cases. ³ 109 S.Ct. at 1873 n. 12. The Supreme Court cited Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) in its discussion of the availability of qualified immunity. We can discern no principled distinction between the availability of qualified immunity as a defense to unreasonable searches and unreasonable seizures under the fourth amendment and as a defense to an excessive force claim also grounded in the fourth amendment. We are squarely presented with the question in this case, and we therefore hold that qualified immunity is available as a defense to monetary liability for an objectively unreasonable use of excessive force under the Fourth Amendment.

This issue had previously been unsettled in our decisions. See n. 2, supra. We have held repeatedly, however, that where the defense of qualified immunity may be raised, a plaintiff is required by his pleadings to state facts which, if proved, would defeat a claim of immunity. Geter v. Fortenberry, 849 F.2d 1550 (5th Cir.1988); Elliott v. Perez, 751 F.2d 1472 (5th Cir.1985) ⁴; Jacquez v. Procunier, 801 F.2d 789 (5th Cir.1986). Henceforth, a plaintiff who files a lawsuit predicated on the use of excessive police force contrary to the fourth amendment must comply with these authorities and state facts sufficient to overcome a potential qualified immunity defense. This will require an elaboration on the circumstances of the plaintiff's arrest that goes beyond those averred thus far by Brown. The Supreme Court noted in Graham that "a fact-finder may consider, along with other factors, evidence that the officer harbored ill-will toward the citizen." 109...