Filed: October 29, 2002

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NELSON O. ROBLES, 

Plaintiff-Appellant,

v. No. 01-1662

PRINCE GEORGE’S COUNTY,  (CA-99-31-PJM)

MARYLAND; JAMES ROZAR; ANTONIO

DEBARROS,

Defendants-Appellees. 

NELSON O. ROBLES, 

Plaintiff-Appellee,

v. No. 01-1728

PRINCE GEORGE’S COUNTY,  (CA-99-31-PJM)

MARYLAND; JAMES ROZAR; ANTONIO

DEBARROS,

Defendants-Appellants. 

On Petition for Rehearing and Rehearing En Banc

Appellant/Cross-Appellee filed a petition for rehearing with petition for rehearing en banc. 

The panel voted to deny rehearing. 

A member of the Court requested a poll on the suggestion for

rehearing en banc, and a majority of the judges voted to deny rehear-
ing en banc. Judge Luttig voted to grant rehearing en banc. Chief

Judge Wilkinson, and Judges Widener, Wilkins, Niemeyer, Williams,

Michael, Motz, Traxler, King, and Gregory voted to deny rehearing

en banc. 

Chief Judge Wilkinson filed an opinion concurring in the denial of

rehearing en banc. Judge Luttig filed an opinion dissenting from the

denial of rehearing en banc. 

The Court denies the petition for rehearing and petition for rehearing en banc. 

Entered at the direction of Chief Judge Wilkinson for the Court. 

For the Court

Clerk

WILKINSON, Chief Judge, concurring in the denial of rehearing en

banc: 

The panel opinion sets forth the basis for its decision, and I see no

need to repeat that earlier discussion. See Robles v. Prince George’s

County, 302 F.3d 262 (4th Cir. 2002). Inasmuch as my good colleague has written in dissent, however, I offer these brief thoughts in

response. 

To read the dissent, one would think that the panel’s decision had

in some way been approving of the officers’ behavior in this case. Far

from it. The opinion disapproves what happened here in no uncertain

terms. It condemns the conduct as "Keystone Kop activity" that was

"foolish and unorthodox." Id. at 271. It recognizes that the officers’

actions were "immature" and "adolescent." Id. at 270, 273. The decision leaves no doubt this type of conduct is unacceptable. 

The panel also rejected the government’s purported justification for

the incident. According to Prince George’s County, Montgomery

County had been reluctant to accept any custody transfers of detainees

2 ROBLES v. PRINCE GEORGE’S COUNTY
who belonged to Montgomery. Prince George’s contended that the socalled prank here was merely a misguided attempt to convince neighboring Montgomery County to be more receptive to transfers of custody when the detainee was subject to outstanding warrants in

Montgomery. Id. at 269. The panel rejected that assertion, finding that

"it was hardly necessary to tie someone to a metal pole in a deserted

parking lot, for however brief a time, in order to effect a transfer of

custody." Id.

The panel also concluded that Robles had offered sufficient evidence that he suffered more than de minimus injury, but that issue was

close. See Bell v. Wolfish, 441 U.S. 520 (1979); Riley v. Dorton, 115

F.3d 1159 (4th Cir. 1997) (en banc). After all, Robles was left alone

for only 10 minutes, during which time no one bothered him. He concedes that he suffered no physical injury and that the officers told him

that someone would pick him up there later. He offered no objective

evidence (e.g. lost wages or medical expert testimony) to support his

claim of psychological injury. In concluding that Robles had

presented a triable issue of more than de minimus injury, the panel

again gave Robles, not the officers, the benefit of the doubt. 

Finally, the panel found a constitutional violation which allowed

the plaintiff to proceed before a jury on his due process claim. It recognized that even if the officers were merely acting immaturely, and

even if the panel accepted their assertion that they acted without specific intent to punish, due process guarantees were still implicated.

The panel clearly acknowledged that even so-called police pranks of

short duration and without any evidence of physical abuse can rise to

the level of a constitutional violation. Id. at 269-70. 

What the panel was unwilling to do was to take this holding of first

impression and strip the qualified immunity defense of any notice

component whatsoever. While stupid or inappropriate behavior on the

part of the police can rise to the level of a federal constitutional violation, not every violation of state law does so. The Constitution is not

a "font of tort law" to be "superimposed upon whatever systems may

already be administered by the States." Id. at 271 (quoting Paul v.

Davis, 424 U.S. 693, 701 (1976)). Thus, the fact that the officers

"clearly appreciated the wrongfulness of their actions" does not mean

that they understood their actions to be a violation of the federal ConROBLES v. PRINCE GEORGE’S COUNTY 3
stitution. Id. at 273. The Supreme Court has made clear that the very

vagaries of the Due Process Clause mean that a specific enunciation

of the principles of constitutional liability is required. Anderson v.

Creighton, 483 U.S. 635 (1987). Under Harlow v. Fitzgerald, 457

U.S. 800 (1982), conduct must violate clearly established constitutional rights. Id. at 817-18. And under Anderson the contours of those

rights must be clear. 483 U.S. at 640. To equate knowledge of wrongfulness in a generic sense with knowledge of unconstitutionality in a

specific sense is not consistent with the rule of law. The latter requires

notice, something to which even the worst criminal wrongdoer is entitled. 

In reasoning as it did, the panel followed the two-step analysis in

Siegert v. Gilley, 500 U.S. 226 (1991), and Wilson v. Layne, 526 U.S.

603 (1999). Under step one of that analysis, if a constitutional violation is found then it will nearly always be a "bad act." In fact the constitutional violation in Wilson could be argued to be a far more

invasive act than the incident the panel confronted here. If every bad

act under step one of the Wilson analysis sufficed by itself to answer

the step two qualified immunity inquiry, there would simply be no

qualified immunity defense. The district court felt strongly that the

officers had not been placed on notice that their behavior, however

dumb, violated a clearly established constitutional right. 

My dissenting brother quotes at length from the majority’s analysis

under the first step of Wilson. The panel naturally relied on general

language in Bell v. Wolfish to find a constitutional violation on these

specific facts. The dissent indicates that the language of the step one

analysis detailing the unconstitutionality of the officers’ actions also

suffices to satisfy the second prong of Wilson. However, the pitfalls

of this approach should be apparent. If a court’s general explanation

of why an act is unconstitutional also suffices to supplant the need for

specific notice, then there will be no independent force to the qualified immunity inquiry at all. The two steps of an analysis which the

Supreme Court clearly intended to be sequential and distinct will simply collapse. 

The concept of notice is rooted in case law. The panel emphatically

did not require the plaintiff to come forward with a case on all fours

with the present one in order to abrogate the qualified immunity

4 ROBLES v. PRINCE GEORGE’S COUNTY
defense. See Anderson, 483 U.S. at 640. It pressed for even one case

that would put the officers on fair notice of a constitutional infraction,

but all the cases plaintiff advanced involved much more egregious or

far different circumstances than those present here. The plaintiff was

unable to provide a single decision to illustrate even the general point

that a fleeting or misguided prank rose to the level of a constitutional

violation. Wilson requires that a plaintiff point to at least some pertinent authority. 526 U.S. at 617. Plaintiff provided none at all. 

Indeed plaintiff’s major case, Hope v. Pelzer, 122 S.Ct. 2508

(2002), not only came down six years after the incident in question

here, but was also so factually far afield as not to serve notice of any

sort. And even under the far more egregious circumstances in Hope,

the Court still divided sharply over the viability of the qualified

immunity defense. It is impossible to compare a 10-minute incident

with no physical abuse whatsoever to what the Supreme Court

described in Hope as the "restricted position of confinement for a 7-

hour period," which involved "exposure to the heat of the sun, to prolonged thirst and taunting, and to a deprivation of bathroom breaks

that created a risk of particular discomfort and humiliation." Id. at

2514. The Court in Hope went out of its way to stress the extended

time period and the gratuitous infliction of pain, none of which, for

all the stupidity of this behavior, came close to happening here. 

The dissent fares no better than the plaintiff in citing even one case

that is even factually in the neighborhood with this one. It simply contents itself with repeating the indisputable proposition that the behavior here was bad. But the Supreme Court requires that the availability

of qualified immunity be determined through an examination of the

case law, lest judging take leave of the touchstone of unlawfulness

and become little more than a visceral exercise. "I know it when I see

it" is not a substitute for qualified immunity analysis. In Wilson, the

Court noted pointedly that "[p]etitioners have not brought to our

attention any cases of controlling authority in their jurisdiction at the

time of the incident that clearly established the rule on which they

seek to rely." 526 U.S. at 616. Further, the plaintiffs failed even to

identify "a consensus of cases of persuasive authority such that a reasonable officer" would have notice as to the unconstitutionality of his

actions. Id. Likewise, in Hope the Court recognized the relevance of

pertinent case law, holding that earlier circuit case law had put the

ROBLES v. PRINCE GEORGE’S COUNTY 5
defendants squarely on notice that they were violating the plaintiff’s

constitutional rights. 122 S.Ct at 2516 (referencing Gates v. Collier,

501 F.2d 1291, 1306 (Former 5th Cir. 1974)). While Hope certainly

did not require prior cases to have fundamentally similar facts, neither

did it take leave of the need to inquire into the case law to give at least

a semblance of specificity to what would otherwise be general and

abstract constitutional principles. 

These basic, simple principles worked well here. The officers did

not go unpunished. In finding a constitutional violation, the panel

allowed the plaintiff to proceed before a jury on his state due process

claim for which Maryland provides no qualified immunity defense.

Robles, 302 F.3d at 273. The district court believed that the first

jury’s award of well over a half a million dollars for a 10-minute incident in which there was probable cause to arrest and no evidence of

verbal or physical abuse was too high. It offered the plaintiff

$240,000 or the opportunity for a new trial, a course which is well

settled under our precedent. Id. at 268. Plaintiff could have taken the

$240,000 and banked it. Instead, he decided to roll the dice. An extensive trial was held on the issue of damages and the jury came back

with an award of $40,000. Id. The panel upheld the jury award. What

it was not prepared to do, however, was relieve the plaintiff of the

consequences of a strategic decision that in hindsight the plaintiff

wished he had made differently. 

This was, in short, a case in which the system worked. It makes

good sense to allow state law to hold officers to strict account while

the parameters of federal violations are fairly defined. Moreover, the

proper precedent has been established for the future. Police officers

have been put on the clearest notice in this circuit that even brief episodes of foolishness implicate due process guarantees. And the plaintiff has had his day in court — and indeed recovered — on the very

claim he is now complaining about.*

*The dissent asserts that the Fourth Amendment supplies the appropriate analytical framework, rather than the Due Process Clause. This is

incorrect. See Riley v. Dorton, 115 F.3d 1159 (4th Cir. 1997) (en banc).

The ill-advised decision to cuff Robles does not eliminate the fact that

he was validly arrested and held for an hour prior to the cuffing. The

cuffing was part of a crude prisoner transfer, not a fresh seizure or arrest;

it was a confinement pending arraignment similar to that in the station

house in Riley. That fact that Riley was ultimately arraigned while

Robles was not in no way changes the analysis. 

6 ROBLES v. PRINCE GEORGE’S COUNTY
The basic point, however, pertains to the simple fairness of giving

even unpopular parties proper notice. The Supreme Court requires

that we do so, and we are not at liberty to disregard the discipline of

its analysis. In United States v. Lanier, 520 U.S. 259 (1997), the Court

made clear that officers in a civil action for damages under 42 U.S.C.

§ 1983 have the same right to fair notice as defendants charged with

the criminal offense defined in 18 U.S.C. § 242. "The fact that one

has a civil and the other a criminal law role is of no significance; both

serve the same objective, and in effect the qualified immunity test is

simply the adaptation of the fair warning standard to give officials

(and, ultimately, governments) the same protection from civil liability

and its consequences that individuals have traditionally possessed in

the face of vague criminal statutes." Id. at 270-71. Police officers do

bad things. Criminal defendants do bad things. But due process of law

belongs to both.

LUTTIG, Circuit Judge, dissenting from denial of rehearing en banc:

I dissent from the court’s denial of rehearing en banc. Even had the

panel straightforwardly applied the proper qualified immunity standards, which it did not, I believe that this case would be worthy of

reconsideration by the full court on the relatively fact-specific question of whether these officers are entitled to immunity for their particular actions. Irrespective of any larger doctrinal implications, it is

significant when a court of appeals holds, as did this panel, that law

enforcement officers today could not reasonably have known that

handcuffing a pretrial detainee to a pole in a deserted shopping center,

and abandoning him there in the middle of the night, admittedly for

no law enforcement purpose whatsoever, would violate his rights

under the Constitution. I think it clear that the constitutional impermissibility, not to mention the inherent danger of such, is sufficiently

self-evident to require the denial of qualified immunity to the defendant officers. But because of what are in fact the much larger implications of the panel’s breathtaking expansion of the qualified immunity

doctrine and resulting constriction of 42 U.S.C. § 1983, I believe the

case is an especially appropriate candidate for further review by the

entire court. 

It is on the assumption that appellant’s restraint was in violation of

his rights as a pretrial detainee under the Fourteenth Amendment that

ROBLES v. PRINCE GEORGE’S COUNTY 7
I believe this case merits full court review for the foregoing reasons.

I believe that the case is also deserving of en banc reconsideration,

however, for the entirely unrelated, but equally fundamental, reason

that the panel erred in holding that appellant did not suffer a violation

of his Fourth Amendment rights to be free from unreasonable seizure,

but, rather, a violation of his due process rights not to be punished

prior to valid conviction and sentence. Properly viewed, appellant was

not at all a detainee being held pending trial. Rather, handcuffed to

a metal pole in a shopping center and intentionally abandoned by the

arresting officers, appellant was an ordinary citizen subjected to an

unconstitutional restraint. 

I.

The undisputed facts are as follows. Officers of the Prince

George’s County Police Department arrested appellant on an outstanding traffic warrant from Montgomery County. Thereafter, at

three o’clock in the morning, these sworn officers handcuffed appellant to a metal pole, in the middle of a deserted shopping center, and

left him there, after anonymously notifying the Montgomery County

Police Department that someone had handcuffed a person to a pole in

the Hillandale Shopping Center. Appellant remained handcuffed to

the shopping center pole for some time even after Montgomery

County officers arrived at what they understood to be a crime scene,

because of an inability to sever the handcuffs by which appellant was

restrained. While the total time during which appellant was tied to the

pole does not appear in the record, the delay prior to the arrival of the

summoned officers was approximately 10-15 minutes and appellant

remained tied to the pole for a sufficient time thereafter for a crimescene photographer to be called, travel to the site, and record the

scene. See Transcript of the District Court’s Summary Judgment

Motions Hearing at 3, 18, and 22 (Oct. 25, 1999) [hereinafter Summary Judgment]. During the time that appellant was handcuffed to the

pole, according to the panel, he "did not know when or if anyone

would come to rescue him or who might discover him." Robles v.

Prince George’s County, 302 F.3d 262, 270 (4th Cir. 2002). As the

panel concluded, the officers "clearly appreciated the wrongfulness of

their actions" and "freely admitted that their motive was unrelated to

any legitimate law enforcement function." Id. at 273. 

8 ROBLES v. PRINCE GEORGE’S COUNTY
Notwithstanding these conclusions, the panel granted the officers

full immunity for this unconstitutional conduct on the startling ground

that law enforcement officers could not reasonably have been

expected to know that handcuffing a pretrial detainee to a metal pole

in a deserted shopping center at three o’clock in the morning, and

abandoning him there, concededly for no law enforcement purpose

whatsoever, would violate his rights under the Constitution. 

In affirming the judgment below, the panel concluded that the district court had struck "a fortunate balance" "in this unfortunate case,"

id., reaching that disposition that represented the "justice of the case."

Id. at 266-67. Said the panel in summation, "[t]he district judge

wisely let neither party have its way." Id. at 273-74. 

I confess ignorance as to where the "justice of the case" lies. But

under the law, it is quite clear that these officers are not entitled to

immunity for their conduct. Although I would not attempt to do so,

it could legitimately be maintained that the conduct at issue did not

rise to the level of a constitutional violation at all (which is what the

panel really seems to have believed), either because of its character

as prank or because of the relative insignificance of the injuries. But

it has now been almost a quarter century since the Supreme Court

held in Bell v. Wolfish, 441 U.S. 520 (1979), that the official treatment of pretrial detainees that causes greater than de minimis injury

and has no legitimate governmental purpose whatsoever amounts to

unconstitutional punishment. Id. at 538-39; see also Whitley v. Albers,

475 U.S. 312, 322 (1986)(noting that the deference courts accord officers when deciding if conduct was reasonably related to a legitimate

purpose "does not insulate from review actions taken in bad faith and

for no legitimate purpose"). And, in the intervening years, the Court

has been unwavering in its commitment to this principle. This long

after Bell v. Wolfish, it simply is analytically indefensible to hold that

the particular conduct of these officers violated appellant’s rights

under the Fourteenth Amendment for the reasons that the officers’

conduct served no law enforcement purpose whatsoever and inflicted

more than de minimis injury, and at the same time to hold that the

officers are nonetheless entitled to official immunity for their unconstitutional conduct because they could not reasonably have known

that their conduct was forbidden by the Constitution. 

ROBLES v. PRINCE GEORGE’S COUNTY 9
The panel here concluded, without reservation, that the defendants’

treatment of appellant served absolutely no legitimate law enforcement purpose:

The police behavior here was not reasonably related —

indeed it was entirely unrelated — to any legitimate law

enforcement purpose. Nothing the officers did served to

enhance their own safety or the safety of others, or to ensure

the presence of plaintiff at trial. Moreover, it was hardly

necessary to tie someone to a metal pole in a deserted parking lot, for however brief a time, in order to effect a transfer

of custody. The officers’ actions thus served no conceivable

law enforcement purpose . . . .

Robles, 302 F.3d at 269. In fact, the defendants did not even attempt

to justify their treatment of appellant on the basis of a legitimate law

enforcement purpose. Id. ("[T]he defendants . . . decline to justify

their behavior on [the basis of a law enforcement purpose]."); id. at

273 ("[the officers] have freely admitted that their motive was unrelated to any legitimate law enforcement function"). 

The panel concluded that appellant suffered more than de minimis

injuries as a result of the defendants’ "arbitrary and purposeless" conduct:

Robles was tied up in a dark and deserted location in the

middle of the night. He did not know when or if anyone

would come to rescue him or who might discover him. The

resulting injury was more than de minimis. 

Id. at 270. 

And it even explained that the defendants "clearly appreciated the

wrongfulness of their actions," id. at 273, those actions having even

been in "violat[ion] [of] police regulations as well as state law," id.

at 271. It follows inescapably from the composite of these facts and

conclusions, not only that the defendants violated appellant’s Fourteenth Amendment rights as a pretrial detainee (as the panel held), but

also that they forfeited their official immunity because of their know10 ROBLES v. PRINCE GEORGE’S COUNTY
ing violation of clearly established law (as the panel refused to hold).

Indeed, so clear do I believe it to be that conduct like that at issue here

is prohibited by the Constitution, that I would think it an affront to

law enforcement officers to be told that they would not reasonably

know that such conduct was violative of a detainee’s rights. 

Such is not to say that in every case in which a detainee’s Fourteenth Amendment rights, as defined by the Court in Bell v. Wolfish,

have been violated immunity will be unavailable and official liability

will attach. In some cases, officers who injure detainees through conduct which, it is subsequently determined, served no legitimate law

enforcement purpose and inflicted more than de minimis injury, will

yet be entitled to immunity on the ground that the officers reasonably,

but mistakenly, believed that their conduct was in service of a legitimate law enforcement purpose or would not have inflicted more than

de minimis injury. However, on the panel’s own terms, this is not

such a case. These officers did not even attempt to defend their

actions on the ground that they were in furtherance of a legitimate law

enforcement purpose or could not have reasonably been expected to

inflict injury. 

I cannot help but believe that the panel’s fundamental error lay in

its attempt (candidly undertaken and, doubtless, well-intentioned) to

discern the "justice of the case." Having held that appellant’s non-de

minimis injuries were sustained as a result of treatment that served no

law enforcement purpose whatsoever, and therefore that appellant’s

rights under the Due Process Clause had been violated, the panel’s

concern for "striking the just balance in the case" caused it to jettison

its theretofore rigorous analysis, and the very inquiry which, at the

outset of its qualified immunity analysis, it correctly identified as the

one that it was required to undertake — namely, whether appellant’s

right not to be subjected to serious injury by official conduct that is

not in service of a legitimate law enforcement purpose was clearly

established at the time of the incident in question. Compare Robles,

302 F.3d at 270 ("Because the officers’ actions were not reasonably

related to any law enforcement purpose and Robles suffered more

than de minimis injury as a result of these actions, Robles’ Fourteenth

Amendment right to due process was violated."), with id. ("Even

though the officers’ actions deprived Robles of an actual constitutional right, Rozar and DeBarros may still be entitled to qualified

ROBLES v. PRINCE GEORGE’S COUNTY 11
immunity if that right was not clearly established at the time of the

incident.")(emphasis added). 

Rather than conducting this proper qualified immunity inquiry, the

panel instead, with citation to Anderson v. Creighton, 483 U.S. 635

(1987), simply admonished without elaboration that "a greater degree

of specificity [i.e., greater than simply alleging that conduct amounts

to punishment] is required to overcome a defense of qualified immunity," Robles, 302 F.3d at 270. And then, without even so much as a

further mention of the right, much less a discussion of the level of

specificity at which the right ought to be defined, it merely recited

that there are no cases factually on all-fours with the instant case, and

concluded that the defendants therefore could not possibly have

understood that their conduct violated appellant’s rights. 

Although its award of qualified immunity necessarily entails such

a holding, so expedient is the panel’s analysis on the qualified immunity question that it never even directly states the conclusion that the

officers could not have reasonably known that their conduct was violative of the Constitution, a statement which, if made, perhaps would

have jarred the sensibilities. See, e.g., id. at 271 ("Although the officers’ actions in this instance were foolish and unorthodox, it is also

not clear that at the time they acted they should have reasonably

known that their conduct violated [appellant’s] constitutional rights.")

(emphasis added). Indeed, if one carefully reads the panel’s qualified

immunity analysis, it appears that the panel did not even award these

officers immunity on a basis justified in law. The fairest (if not only)

inference from what the panel wrote is that it afforded the officers

immunity, not at all on the ground that the officers could not reasonably have known that their conduct violated appellant’s constitutional

rights, the only ground upon which it could legitimately have done so.

Rather, it appears that the panel actually granted qualified immunity

either on the wholly illegitimate ground that the officers did not subjectively understand that their conduct violated clearly established

law, or on the wholly irrelevant ground (irrelevant, that is, to the

qualified immunity claim, as opposed to the threshold claim that the

officers violated appellant’s due process rights) that the conduct did

not rise to the level of a constitutional violation: 

The officers should have known, and indeed did know, that

they were acting inappropriately. But whether they under12 ROBLES v. PRINCE GEORGE’S COUNTY
stood their conduct violated clearly established federal law

is an altogether different question. The Constitution is not

a "font of tort law" to be "superimposed upon whatever systems may already be administered by the States." Paul v.

Davis, 424 U.S. 693, 701 (1976). The officers’ conduct violated police regulations as well as state law and was dealt

with under those provisions. But not every instance of inappropriate behavior on the part of police rises to the level of

a federal constitutional violation.

Id. at 271 (emphases added). 

In any event, having altogether bypassed the proper qualified

immunity inquiry through this sequence of analytical nonsequitur, the

panel left itself only with the comfortable task of rejecting what was

by that time the strawman argument that cases decided on facts similar to those here clearly established that the defendants’ conduct was

violative of the Constitution. Unsurprisingly, because of the infrequency (to say the least) of such conduct, the panel found no cases

that have held that handcuffing a pretrial detainee to a pole in a

deserted shopping center in the wee hours of the morning, and abandoning him there, all admittedly for no law enforcement purpose

whatsoever, is unlawful. And it found "inapposite" the facts of those

few distant authorities that it cited as closest on their facts to those

here, authorities which would have been distinguishable in any event

because they addressed only whether specific conduct was reasonably

related to a legitimate purpose — a question that does not even

present itself in this case because the defendants’ conduct concededly

had no legitimate law enforcement purpose. 

It should be apparent that I do not believe that a decided case is

necessary in order for officers to be on fair notice that conduct like

that by the officers here is violative of the Constitution. See generally

Wilson v. Layne, 526 U.S. 603, 615 (1999)(holding that the precise

conduct need not have been previously held unlawful in order for

qualified immunity to be forfeited); see, e.g., Amaechi v. West, 237

F.3d 356 (4th Cir. 2001)(denying qualified immunity and rejecting

argument that previously decided case must have held that barehanded penetration of female genitalia during pat down search was

unconstitutional); McMillian v. Johnson, 88 F.3d 1554 (11th Cir.

ROBLES v. PRINCE GEORGE’S COUNTY 13
1996)(denying qualified immunity to officials who confined pretrial

detainee on death row before his trial in order to punish him, despite

the absence of any factually-similar precedent). And I would like to

have thought that at this point in our history no court would hold, as

did this panel, that law enforcement officers need an opinion from this

court in order for them to be on notice that handcuffing a pretrial

detainee to a metal pole in a deserted shopping center at 3:00 a.m. in

the morning, and abandoning him there, for no law enforcement purpose at all, is unconstitutional. The sheer danger, not even to mention

the constitutional irresponsibility, of such conduct is manifest as a

simple matter of common sense, and is made all the more evident by

events such as the recent spree of unpredictable sniper killings in the

Washington, D.C., metropolitan area, which have even reached to the

identical shopping center in which appellant was handcuffed. Such a

holding as that of the panel analytically completes the transformation

of qualified immunity into absolute immunity and goes a long way

toward the dilution of section 1983 itself. It is rich irony, therefore,

that the panel rhetorically asserts precisely the opposite in support of

its conclusion. See Robles, 302 F.3d at 270 (stating, without elaboration, that the denial of immunity to the officers in this case would

"convert the rule of qualified immunity . . . into a rule of virtually

unqualified liability")(citation omitted). 

But, if decided authority is required, the panel would have found

that authority extant, in the form of the Supreme Court’s decision in

Bell v. Wolfish, had it simply proceeded to inquire, as it originally

said that it must, whether a pretrial detainee’s right not to be injured

by officials acting as did these officers was clearly established at the

time of the incident. Faced foursquare with Bell v. Wolfish, the

panel’s answer on the immunity question assuredly would have been

different. 

Had it paused to consider seriously whether, as to the conduct here

at issue, the particularized standards set forth by the Supreme Court

in Bell v. Wolfish constituted sufficiently clearly established law, the

panel would not have been able to reject so dismissively appellant’s

argument. Contrary to the panel’s characterization of appellant’s

claim, see Robles, 302 F.3d at 270 — a characterization that enabled

easy rejection — appellant did not assert merely the violation of his

right as a detainee not to be punished. Rather, he asserted the consid14 ROBLES v. PRINCE GEORGE’S COUNTY
erably more specifically-defined right, per Bell v. Wolfish, not to be

seriously injured as a result of official conduct that serves no legitimate law enforcement purpose. The difference between the specificity

of this right and that to "due process of law," which was held by the

Court in Anderson v. Creighton, 483 U.S. 635 (1987), to be insufficiently specific to provide officials with adequate notice, could hardly

be any greater. And the contours of this right are more than sufficiently apparent to place officers on notice at least that the conduct

engaged in by these defendants violated the Constitution. To hold otherwise, as the panel did, see Robles, 302 F.3d at 270, is, as appellant

maintains in his petition for rehearing en banc, tantamount to holding

that "the very action in question [must] previously [have] been held

unlawful," Wilson v. Layne, 526 U.S. at 615 — the panel’s disclaimer

that it did not so hold notwithstanding. 

In sum, the panel begins and ends its opinion with the assurance

that justice has been done in this particular case. In the sense that the

term is invoked by the panel, I do not know whether the "just" result

of this dispute is in a splitting of the baby, as the panel concluded. Or

whether the more equitable result would instead be for us to hold that

the defendants did not even violate appellant’s rights under the Constitution. Or, for that matter, for us to hold that the officers both violated the appellant’s rights and forfeited their otherwise applicable

immunity. I am not even sure how to go about deciding what "justice"

might require in this case. 

However, under the applicable law it is clear not only that these

defendant officers violated appellant’s rights as a pretrial detainee, but

also that they are not entitled to immunity for their actions, for they

were in violation of clearly established law of which they not only

reasonably should have been aware, but actually were aware. And in

this case, as in all others, justice, in the only sense that matters, is

done when we reason to that conclusion which is dictated by the particular rule of law applicable under the circumstances. We have the

rule of law precisely because we recognize that, as human beings, we

do have different notions of what constitutes "justice" in given circumstances, but agree that the determination of our rights and the protection of our liberties must not turn upon those individual notions,

for one man’s "justice" is another’s deprivation of right. 

ROBLES v. PRINCE GEORGE’S COUNTY 15
II.

I have, until this point, addressed myself to the panel opinion on

the assumption that it correctly analyzed the officers’ actions as a pretrial detention, rather than as a Fourth Amendment seizure, because

of the significance to the law of the panel’s holding that the defendants are immune for their unconstitutional conduct under the Fourteenth Amendment. However, I actually believe that the panel entirely

misapprehended the case from the beginning by characterizing the

officers’ restraint of appellant as a pretrial detention, rather than as a

Fourth Amendment seizure. 

It is clear that, following his abandonment in the Hillandale Shopping Center by the Prince George’s County police officers, appellant’s restraint was not in any sense at all a condition of confinement,

contrary to the panel’s critically unexamined assumption. Upon abandonment of appellant, the Prince George’s County police terminated

their pretrial detention of appellant (and obviously at that time appellant was not in the custody of the Montgomery County police officers). The restraint of appellant thereafter, in the absence of a

legitimate law enforcement purpose, constituted an unreasonable seizure in violation of the Fourth Amendment, not a condition of pretrial

confinement. 

That the officers terminated their pretrial detention of appellant is

evident from their actions. But it is also apparent from their testimony

that this was exactly what they intended to do. The officers frankly

testified in depositions that they left appellant in the shopping center

parking lot for the very purpose of terminating their detention of him

and ending their responsibility for his custody and care. The officers,

attempting informally to transfer the prisoner to the Montgomery

County police, were told by officials of that jurisdiction to "process

him" or "release him." The Prince George’s County officers

responded by declaring that they would not process him, and so

would release him, see Summary Judgment at 35. Indeed, on the night

in question, the officers reported to their own dispatcher that appellant

was a "300 SOW," a police code meaning "Sent On Way" (i.e., the

officers released the detainee, sent him on his own way, and no further action was being taken). See id. at 55. 

16 ROBLES v. PRINCE GEORGE’S COUNTY
When, as here, officers decide to cease to secure an arrestee’s presence at trial and in fact terminate their detention of that arrestee without relinquishing custody to other law enforcement personnel, any

further restriction of the individual’s liberty constitutes a new seizure,

as such restriction can no longer be legally based on the prior seizure.

Thus, at the moment following the Prince George’s County officers’

abandonment of appellant, handcuffed to the shopping center pole,

appellant was, as a matter of law, seized anew, a seizure for which

was required a valid law enforcement reason, such as probable cause

or reasonable suspicion. Of course, as we know, that seizure was not

justified by any law enforcement purpose, it having been, as the panel

concluded, completely arbitrary and purposeless. It follows, therefore,

that the defendants violated appellant’s Fourth Amendment rights to

be free from unreasonable seizure. 

Riley v. Dorton, 115 F.3d 1159 (4th Cir. 1997), on which the panel

relied for its holding that appellant was not unlawfully seized, neither

supports that holding nor stands as authority foreclosing the proper

holding that it was appellant’s Fourth Amendment rights that were

violated. It does not support the panel’s holding, because appellant

here, unlike the appellant in that case, plainly was not being held for

trial. Compare id. at 1161 (noting that appellant was "being held prior

to a formal adjudication of guilt"). Thus, no "broaden[ing] [of] Fourth

Amendment protection beyond the point of arrest to cover all persons

in pretrial detention," id. at 1162 (emphasis added), would be entailed

by the holding that appellant was subjected to an unlawful seizure in

violation of the Fourth Amendment. 

By the same token, Riley does not, as the panel in error believed,

foreclose the correct holding that appellant was unlawfully seized,

because such holding does not in any way depend upon recognition

of a "concept of continuing seizure." Compare Robles, 302 F.3d at

268 (citing Riley for the proposition that "this court has rejected any

concept of a continuing seizure rule"). The unlawful seizure of appellant was complete, as I suggest above, at the moment following appellant’s abandonment, handcuffed to the pole, by the defendants,

because at that moment appellant was restrained for reasons wholly

unrelated to any valid law enforcement purpose. 

ROBLES v. PRINCE GEORGE’S COUNTY 17
III.

For the reasons stated, I would grant the petition for rehearing en

banc and set this case for reargument before the full court to consider

the significant holdings by the panel that the officers in this case

could not reasonably have known that their conduct denied appellant

his rights under the Fourteenth Amendment, and that appellant did not

suffer an unreasonable seizure in violation of the Fourth Amendment’s proscription against unreasonable searches and seizures. And

I would hold that the panel fundamentally erred in both of these holdings. Accordingly, I respectfully dissent from my colleagues’ denial

of rehearing en banc.

18 ROBLES v. PRINCE GEORGE’S COUNTY