Dunn v. Denk

Citation79 F.3d 401
Decision Date19 March 1996
Docket NumberNos. 93-1964,93-9066,s. 93-1964
PartiesMary Elizabeth DUNN, Plaintiff-Appellee, Cross-Appellant, v. Mike DENK, Defendant-Appellant, Cross-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Curtis B. Stuckey, Nacogdoches, TX, Stephen Robert Marsh, Wichita Falls, TX, for Dunn.

M. Lawrence Wells, Ann Kraatz and Karen Denise Matlock, Office of the Attorney General for the State of Texas, Austin, TX, for Denk.

Appeals from the United States District Court for the Northern District of Texas.


KING, Circuit Judge: *

This is a case controlled by the law applicable from 1989 to 1992, a window created by our decision in Johnson v. Morel, 876 F.2d 477 (5th Cir.1989) (en banc), and Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992), the decision of the Supreme Court effectively overruling it. See Harper v. Harris County, Texas, 21 F.3d 597, 600 (5th Cir.1994).


The facts concerning Officer Denk's arrest of Ms. Dunn in 1990 and Dunn's ensuing suit under 42 U.S.C. § 1983 against Denk for, inter alia, excessive use of force in effecting her arrest are set out in full in the panel opinion and dissent, Dunn v. Denk, 54 F.3d 248 (5th Cir.), reh'g en banc granted and opinion vacated by 54 F.3d 248, 257 (5th Cir.1995). As the panel majority described it, "[p]hysically, Dunn suffered only bruises but her psychological injury was substantial." Id. at 249. The jury found excessive force, but it did not award compensatory damages. It did award $10,000 in punitive damages. The district court entered judgment on the jury verdict, and Denk appealed. The question before us is whether Denk was entitled to qualified immunity as a matter of law.

We begin by determining whether Dunn alleged the violation of a clearly established constitutional right. She did so by alleging "excessive force ... aris[ing] in the context of an arrest." Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989). Counsel for Denk correctly concedes that whatever injury requirement (if any) may remain after Hudson respecting a claim for excessive force in arrest is satisfied here. However, Denk contends that for purposes of qualified immunity we look to the state of the law when the arrest at issue occurred. Harper, 21 F.3d at 601. Specifically, Denk's contention--a contention with which the panel majority originally agreed but has apparently abandoned 1--is that for this January 1990 arrest, a Fourth Amendment excessive force claim was controlled by Johnson, and that under Johnson, Dunn was required to prove the following elements:

"(1) a significant injury, 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." [Johnson, 876 F.2d] at 480.

The argument continues that in Johnson, we insisted that significant injury was an element of the constitutional claim, an objective, validating event of the reasonableness of force used in making an arrest. Finally, Denk points that in Johnson 's footnote 1, we observed:

"We think it unlikely that such a significant injury will be caused by unnecessary force without significant physical injury. However, on the facts before us here, we do not decide whether a significant but non-physical injury would be legally sufficient." Id. at 480 n. 1.


Given the explicit language of Johnson, and its footnote 1 in particular, we conclude that the law at the time of this arrest was uncertain regarding whether "a significant injury will be caused by unnecessary force without significant physical injury." On the present facts, Denk was entitled to qualified immunity from the claims asserted in this case.


In Johnson, we also distinguished between injuries resulting from excessive force and those resulting from the justified use of force. Looking at causation, we limited recovery to injuries that "resulted directly and only from the use of force that was clearly excessive to the need." Johnson, 876 F.2d at 480. We reject the contention that Johnson, in instances where its threshold requirement of significant injury was satisfied, precluded recovery for aggravation of preexisting injury caused by the use of excessive force. A trier of the fact can compensate only for injury caused by the use of excessive force. There can be no award for injury caused by reasonable force. Johnson 's clause "(2)" did not speak to the recovery for injuries for which a person is uniquely susceptible beyond insisting that compensation be for an injury caused by the excessive force and not a reasonable force. In sum, this particular language of Johnson said no more, and we say no more today. The holding of Wells v. Bonner, 45 F.3d 90 (5th Cir.1995), is not to the contrary. The aggravation of the old injury was not attributable to the excessive component of the force used. Rather, the aggravation of Wells's old shoulder injury was claimed to have been caused by handcuffing his hands behind his back, a routine police procedure. Id. at 92.

The judgment below is REVERSED.

RHESA HAWKINS BARKSDALE, Circuit Judge, joined by E. GRADY JOLLY, EDITH H. JONES, JERRY E. SMITH, EMILIO M. GARZA and DeMOSS, Circuit Judges, concurring in part and dissenting in part:

"Even if [Officer Denk's] conduct violates a constitutional right, he is entitled to qualified immunity if [his] conduct was objectively reasonable." Salas v. Carpenter, 980 F.2d 299, 310 (5th Cir.1992); Walton v. Alexander, 44 F.3d 1297, 1301 (5th Cir.1995) (en banc); Spann v. Rainey, 987 F.2d 1110, 1114 (5th Cir.1993). This factor is "assessed in light of the legal rules clearly established at the time" of the January 1990 incident. Salas, 980 F.2d at 310. Johnson v. Morel, 876 F.2d 477 (5th Cir.1989) (en banc), controlled from early July 1989 until late February 1992, when its significant injury prong was overruled by Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). See Harper v. Harris County, Tex., 21 F.3d 597, 600-01 (5th Cir.1994).


Dunn maintains that her emotional injury satisfies Johnson 's significant injury requirement. But, as covered in part I of Judge King's opinion, it was not clearly established at the time of the incident (only six months after Johnson was rendered) that a non-physical injury, without significant physical injury, could satisfy this requirement. 876 F.2d at 480 & n. 1. In fact, it was just the opposite. Therefore, I concur in part I of the opinion by Judge King, which agrees that qualified immunity must be accorded Officer Denk.

Along that line, I must register concern over the dissents' refusal to recognize our controlling law at the time of the incident. That by Judge Dennis is especially remarkable; he simply declares Johnson, our en banc decision, "void ab initio", because he reads it as conflicting with Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), rendered shortly before Johnson and quoted from at length in it. Indeed, the Johnson en banc court began by stating that it was "[g]uided by" Graham. 876 F.2d at 478.

No authority need be cited for our rule that we are bound by our prior decisions, unless there is a superseding Supreme Court or en banc decision. There is neither in this instance. Instead, our court is faulted by Judge Dennis for supposedly, in an en banc opinion, not complying with an earlier Supreme Court opinion. Being able to decide individually whether one of our opinions applies earlier controlling law correctly would quickly usher in judicial anarchy. See Grabowski v. Jackson County Public Defenders Office, 47 F.3d 1386, 1398 (Smith, J., dissenting), reh'g en banc granted, 47 F.3d at 1403 (5th Cir.1995). Obviously, this is why our court long ago adopted our rule honoring our precedent.


As for part II of Judge King's opinion, I must respectfully dissent. Her part I decides the case; it renders judgment for Officer Denk. Therefore, there is no need to proceed further; there is no need to address other aspects of the Johnson test--in this instance, recovery vel non for aggravation of a preexisting injury. At best, this court is rendering an advisory opinion. At worst, it is offering up language that may come back to haunt us. If nothing else, it has created a judicial quagmire that will bog down the bench and the bar, at considerable cost in time and expense, as both try to determine what weight should be accorded part II.

That is the legacy of dictum, "the gift that keeps on giving". And, part II is dictum, plain and simple. We have long known to avoid engaging in such an exercise. "It is a rule of universal application by the Supreme Court, as well as the other courts of this country, that no opinion can be considered as binding authority unless the case calls for its expression." Indiviglio v. United States, 249 F.2d 549, 561 (5th Cir.1957) (citing Carroll v. Carroll's Lessee, 57 U.S. (16 How.) 275, 14 L.Ed. 936 (1853)), rev'd on other grounds, 357 U.S. 574, 78 S.Ct. 1381, 2 L.Ed.2d 1547 (1958). This case does not call for this expression.

Accordingly, I concur in part I of Judge King's opinion, but must dissent from part II.

REAVLEY, Circuit Judge, joined by POLITZ, Chief Judge, WIENER, BENAVIDES, STEWART, PARKER and DENNIS, Circuit Judges, dissenting.

Without the slightest justification beyond an arrest warrant for a traffic offense, a Texas patrolman injured a woman by pulling her out of her car, putting her face-down into a ditch, kneeling on top of her and handcuffing her arms behind her. This court now holds that the patrolman is immune from liability for his violation of her civil rights. In the 1990's! In the Fifth Circuit! I dissent.

The panel opinion, 54 F.3d 248 (5th Cir.1995),...

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