PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RODNEY WINFIELD,

Plaintiff-Appellee,

v.

G. L. BASS; KELVIN CARLYLE;

ANTHONY CLATTERBUCK; JAMES

HICKS; GALVIN SIZEMORE; RONALD

No. 94-7346

WILLIAMS, or Walter Williams;

DONALD WILMOUTH, Lieutenant,

Defendants-Appellants,

and

UNKNOWN PRISON GUARDS,

Defendants.

RODNEY WINFIELD,

Plaintiff-Appellee,

v.

G. L. BASS; KELVIN CARLYLE;

ANTHONY CLATTERBUCK; JAMES

HICKS; GALVIN SIZEMORE; RONALD

No. 95-6422

WILLIAMS, or Walter Williams;

DONALD WILMOUTH, Lieutenant,

Defendants-Appellants,

and

UNKNOWN PRISON GUARDS,

Defendants.

Appeals from the United States District Court

for the Eastern District of Virginia, at Richmond.

Richard L. Williams, Senior District Judge.

(CA-94-217)
Argued: April 2, 1996

Decided: January 31, 1997

Before WILKINSON, Chief Judge, RUSSELL, WIDENER, HALL,

MURNAGHAN, ERVIN, WILKINS, NIEMEYER, HAMILTON,

LUTTIG, WILLIAMS, MICHAEL, and MOTZ, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Reversed by published opinion. Judge Wilkins wrote the majority

opinion, in which Chief Judge Wilkinson and Judges Russell, Widener, Niemeyer, Hamilton, Luttig, Williams, and Motz joined. Chief

Judge Wilkinson wrote a concurring opinion, in which Judges Russell, Widener, and Hamilton joined. Judge Motz wrote a concurring

opinion. Senior Judge Phillips wrote a dissenting opinion, in which

Judges Hall, Murnaghan, Ervin, and Michael joined.

_________________________________________________________________

COUNSEL

ARGUED: Lance Bradford Leggitt, Assistant Attorney General,

OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for

Appellants. Sa'ad El-Amin, EL-AMIN & CRAWFORD, P.C., Richmond, Virginia, for Appellee. ON BRIEF: James S. Gilmore, III,

Attorney General, Pamela A. Sargent, Assistant Attorney General,

OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for

Appellants. Beverly D. Crawford, EL-AMIN & CRAWFORD, P.C.,

Richmond, Virginia, for Appellee.

_________________________________________________________________

OPINION

WILKINS, Circuit Judge:

Rodney Winfield, an inmate at a Virginia state correctional facility,

brought this action pursuant to 42 U.S.C.A. § 1983 (West 1994),

alleging that prison officials violated his constitutional rights under

 2
the Fifth, Eighth, and Fourteenth Amendments by failing to protect

him from another inmate, T. Gibson, who attacked Winfield with a

metal shank. Specifically, Winfield claimed that the prison officials

exhibited deliberate indifference to his safety by failing to restrain

Gibson prior to the attack and by declining to intervene after the

attack began. Appellants--Warden G. L. Bass and Correctional Officers Kelvin Carlyle, Anthony Clatterbuck, James Hicks, Galvin

Sizemore, Ronald Williams, and Donald Wilmouth--appeal the

denial by the district court of their claim that they are entitled to summary judgment on the basis of qualified immunity. Because we conclude that the district court erred in refusing to grant summary

judgment in favor of Appellants, we reverse.

I.

The evidence presented by Appellants in support of their motion

for summary judgment set forth the following facts. Winfield and

Gibson were confined at the Greensville Correctional Center. Late on

the evening of February 3, 1993, Winfield, Gibson, and a third inmate

were conversing in a cell when a dispute developed between Winfield

and Gibson. A scuffle ensued that spilled out of the cell and onto the

second-floor tier of the prison. Responding to this disturbance, at least

six officers proceeded to the second floor. The fray had ended by the

time they arrived, however, because the inmates immediately dispersed when they saw the officers advancing. When the supervising

officer, Lt. Hicks, directed that Gibson be removed from the tier, the

other prisoners protested, insisting that Gibson had done nothing

wrong. Fearing that an attempt to move Gibson under these circumstances might result in a major disturbance, Lt. Hicks ordered all

except two of the officers to withdraw from the tier to prevent the

confrontation from escalating. Only Officers Williams and Walker

remained outside Gibson's cell; neither officer was armed.

At this point, events began to unfold swiftly. Gibson suddenly and

without warning emerged from his cell wielding a homemade knife,

striking Officer Williams in the face with his fist, knocking him back

against the second-tier railing. Gibson then bolted into Winfield's cell

three doors away. Officer Walker immediately radioed for assistance.

After Officer Clatterbuck, who was now on the first floor, observed

Gibson running from his cell, he instantly yelled out a warning that

 3
Gibson had a knife. Officer Clatterbuck and the other correctional

officers present then hurried to the nearby control booth to obtain

batons and returned to the second tier.

In the meantime, once inside Winfield's cell, Gibson began swinging the shank, striking Winfield. Before the prison staff responded,

another inmate, John Scott, entered Winfield's cell and, although

stabbed by Gibson, was able to wrestle the shank away from him. The

entire incident happened very quickly; only ten seconds were estimated to have elapsed between the assault on Officer Williams and

Scott's successful effort to disarm Gibson. Order was restored, and

Warden Bass was advised of the disturbance.

In response to the prison officials' motion for summary judgment,

Winfield presented his affidavit and documentation from his inmate

grievance proceedings. These materials did not take issue with the

substance of the factual assertions set forth in the prison officials'

affidavits. They, however, did provide three additional allegations

concerning these events that had not been included in the officers'

submission and that, for purposes of summary judgment, should be

taken as true.

First, Winfield asserted that approximately one hour before the

attack, Gibson, Winfield, and two other inmates had been drinking

homemade wine. Moreover, he maintained that Lt. Sizemore and

Officer Clatterbuck observed this behavior during their rounds. Gibson had a brief conversation with these officers at that time and apparently convinced them not to confiscate the wine.

Second, Winfield contended that when the inmates dispersed following his initial altercation with Gibson, he returned to his cell and

pressed a buzzer that sent an electronic signal to a central location to

indicate that he wished to have the door to his cell closed and locked.

Despite several attempts by Winfield to have the door secured, the

officers controlling the mechanism did not respond.

Third, and most importantly for our purposes, Winfield claimed

that in order to enter the cell to extricate the shank from Gibson, Scott

found it necessary to push past two officers who stood looking on

throughout the attack. Further, Winfield asserted that neither of the

 4
officers attempted to provide assistance to Scott while he struggled

with Gibson for the shank.

Based on this record, the district court denied the prison officials'

motion for summary judgment. With respect to their claim that there

were no genuine issues of material fact necessitating a trial and that

they were entitled to judgment as a matter of law, the district court

reasoned:

After reviewing defendants' summary judgment motion and

plaintiff's brief and affidavit opposing the motion, the Court

finds that there are genuine issues of material fact in this

case. Indeed, the Court finds that this case is peculiarly factspecific and should thus proceed to trial on the merits.

J.A. 80. Turning to Appellants' argument that they were entitled to

qualified immunity, the district court opined:

It is axiomatic that individuals incarcerated in correctional

facilities are entitled to be kept secure, and that this right is

protected by the Eighth Amendment, the Due Process

Clause of the Fifth Amendment, and the Equal Protection

Clause of the Fourteenth Amendment to the United States

Constitution. Moreover, this fundamental right to security

certainly was "clearly established" at the time of the assault

on plaintiff. Furthermore, where it appears from the factual

allegations that prison inmates are allowed liberal access to

alcoholic beverages and dangerous weapons, corrections

officers are bound to know that the safety of other inmates

is at risk. . . . Thus, reasonable people in defendants' position[s] would have known that their permissive attitude[s]

toward[ ] spirits and shanks would violate the inmates' right

to continued safety and security. Accordingly, the Court

rejects defendants' qualified immunity defense.

J.A. 81-82.

The prison officials filed an appeal from the portion of this decision denying their motion for summary judgment based on qualified

 5
immunity. In addition, the district court certified for immediate interlocutory appeal the remainder of its summary judgment decision. See

28 U.S.C.A. § 1292(b) (West 1993). And, this court subsequently

entered an order permitting the permissive interlocutory appeal.

While the appeals were pending, the Supreme Court decided

Johnson v. Jones, 115 S. Ct. 2151 (1995), addressing the jurisdiction

of a federal appellate court to entertain an immediate appeal from a

refusal of a district court to grant summary judgment based upon

qualified immunity. Thereafter, relying on Johnson, a panel of this

court issued an opinion concluding that we lacked jurisdiction over

the appeal from the decision of the district court denying qualified

immunity to Appellants and that permission for the interlocutory

appeal of the remainder of the summary judgment order was granted

improvidently. Winfield v. Bass, 67 F.3d 529 (4th Cir. 1995). A

majority of the court subsequently voted to hear these appeals en

banc. Winfield v. Bass, Nos. 94-7346, 95-6422 (4th Cir. Jan. 5, 1996).

We first address our jurisdiction to entertain appeal number 94-

7346, which challenges the decision of the district court denying

Appellants' claim that they are entitled to qualified immunity. And,

concluding that we possess jurisdiction to do so, we turn to consider

whether the prison officials were entitled to qualified immunity.

Because our determination that the district court erred in refusing to

grant summary judgment to Appellants on the basis of qualified

immunity is dispositive of the questions presented to us, we need not

address appeal number 95-6422.

II.

Federal courts of appeals are granted jurisdiction to hear final decisions of district courts pursuant to 28 U.S.C.A.§ 1291 (West 1993).

To the extent that an order of a district court rejecting a governmental

official's qualified immunity defense turns on a question of law, it is

a final decision within the meaning of § 1291 under the collateral

order doctrine recognized in Cohen v. Beneficial Industrial Loan

Corp., 337 U.S. 541 (1949), and therefore is subject to immediate

appeal. See Behrens v. Pelletier, 116 S. Ct. 834, 836 (1996); Johnson,

115 S. Ct. at 2155-56; Mitchell v. Forsyth , 472 U.S. 511, 524-30

(1985).

 6
Prior to the decision of the Supreme Court in Johnson, this court

had ruled that it was appropriate for a court of appeals to review a district court order rejecting a defense of qualified immunity on either

of two conceptually distinct bases. Turner v. Dammon, 848 F.2d 440,

443-44 (4th Cir. 1988). We permitted officials who were denied summary judgment on the basis of qualified immunity to argue that the

district court had erroneously refused to enter judgment in their favor

because the evidence presented was insufficient to create a triable

issue of fact or because the right that the governmental official had

purportedly violated was not clearly established. Id. The Johnson

Court, however, rejected our prior practice. See Johnson, 115 S. Ct.

at 2154-59. Although the Court reiterated the position that the courts

of appeals possess jurisdiction to consider appeals from decisions

rejecting a proffered qualified immunity defense to the extent that the

district court ruled that the legal right the official purportedly violated

was clearly established at the time the action was taken, it held that

to the extent that the order of the district court rested upon a determination that the evidence presented was sufficient to raise a genuine

issue of material fact necessitating trial, the order is not a final one

from which an immediate appeal may be taken. Id. 

An articulation of this distinction is rather straightforward, but an

application of it may prove to be more difficult. See Woolfolk v.

Smith, 81 F.3d 741, 743 (8th Cir. 1996) (per curiam). The Supreme

Court directed that in determining our jurisdiction in this area, we

should consider the order entered by the district court to assess the

basis for its decision. See Johnson, 115 S. Ct. at 2159. As the Court

recognized, however, a district court does not invariably provide a

clear basis for its decisions or set forth fully the facts on which its resolution is grounded. See id. And, even in those circumstances in

which a district court does supply both, difficulty in assessing the

threshold jurisdictional issue will remain because the determination of

whether the law was clearly established at the requisite level of particularity is an especially fact-bound legal inquiry. See Prosser v. Ross,

70 F.3d 1005, 1006 (8th Cir. 1995); Reece v. Groose, 60 F.3d 487,

490 (8th Cir. 1995). Moreover, all denials of summary judgment, by

definition, involve a determination that the evidence is disputed sufficiently to raise a genuine issue of material fact for trial. See Behrens,

116 S. Ct. at 842; Fed. R. Civ. P. 56. And, inherent in every determination that a governmental official is not entitled to qualified immu-

 7
nity is the legal determination that viewed in the light most favorable

to the nonmoving party, the official's conduct violated a clearly established constitutional or statutory right. See Anderson v. Creighton,

483 U.S. 635, 638-41 (1987). Accordingly, each decision of a district

court denying a governmental official's request for summary judgment based upon qualified immunity will encompass a determination

that the facts are sufficiently controverted to warrant a trial and that

the legal right purportedly violated was clearly established. Obviously, if a determination by a district court that genuine issues of

material fact warrant trial were sufficient to prevent us from exercising jurisdiction over an appeal from an order rejecting a qualified

immunity defense, we would never have jurisdiction over such

appeals--a result plainly at odds with Mitchell and its progeny. See

Behrens, 116 S. Ct. at 842.

Consequently, we conclude that we possess jurisdiction to consider

an appeal from a decision of a district court rejecting a government

official's claim of entitlement to qualified immunity to the extent that

the official maintains that the official's conduct did not violate clearly

established law. Alternatively, to the extent that the appealing official

seeks to argue the insufficiency of the evidence to raise a genuine

issue of material fact--for example, that the evidence presented was

insufficient to support a conclusion that the official engaged in the

particular conduct alleged--we do not possess jurisdiction under

§ 1291 to consider the claim and, therefore, may not do so absent

some independent jurisdictional base. See Johnson, 115 S. Ct. at

2156-58; see also Shinault v. Cleveland County Bd. of County

Comm'rs, 82 F.3d 367, 370 (10th Cir. 1996) (recognizing that jurisdiction is controlled by the portion of the order from which appeal is

taken and by argument on appeal); Sanders v. Brundage, 60 F.3d 484,

486 (8th Cir. 1995) (explaining that issues raised on appeal control

jurisdiction). In other words, we possess no jurisdiction over a claim

that a plaintiff has not presented enough evidence to prove that the

plaintiff's version of the events actually occurred, but we have jurisdiction over a claim that there was no violation of clearly established

law accepting the facts as the district court viewed them.

Here, Appellants did assert in part that the evidence presented by

Winfield was insufficient to raise a genuine issue of material fact

necessitating a trial (i.e., that the evidence was insufficient to support

 8
his factual allegations),1 and to that extent, we lack jurisdiction pursuant to § 1291 to consider it. Nevertheless, in denying the prison officials' motion for summary judgment, the district court plainly ruled

that Winfield's legal right to personal security was clearly established.

Moreover, Appellants made clear in supplemental briefing after

Johnson was decided, and in oral argument before this en banc court,

that they press the legal issue of whether the undisputed facts disclose

that reasonable officers would have understood that their conduct violated Winfield's clearly established legal rights. See Miller v.

Schoenen, 75 F.3d 1305, 1308-09 (8th Cir. 1996). We therefore possess jurisdiction under § 1291 to consider this latter question and turn

now to address it.

III.

Government officials performing discretionary functions are entitled to qualified immunity from liability for civil damages to the

extent that "their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have

known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In analyzing an appeal from the rejection of a qualified immunity defense, our

first task is to identify the specific right that the plaintiff asserts was

infringed by the challenged conduct, recognizing that the right must

be defined at the appropriate level of particularity. Taylor v. Waters,

81 F.3d 429, 433 (4th Cir. 1996). We then consider whether, at the

time of the claimed violation, this right was clearly established and

"`whether a reasonable person in the official's position would have

known that his conduct would violate that right.'" Id. (quoting

Gordon v. Kidd, 971 F.2d 1087, 1093 (4th Cir. 1992)).

Although Winfield made general allegations that his rights under

the Fifth, Eighth, and Fourteenth Amendments were violated, the gist

_________________________________________________________________

1 This is hardly surprising given that the initial briefing was completed

before the Supreme Court decided Johnson and that the prior decisions

of this court permitted Appellants to raise such a claim. In addition, in

this instance an independent jurisdictional basis existed to permit our

consideration of the claim because we had granted permission for an

interlocutory appeal after the district court entered an order certifying the

remainder of the summary judgment order for immediate appeal.

 9
of his complaint is that the prison officials were deliberately indifferent to the serious and specific risk of physical harm posed to him by

Gibson; thus, the prohibition imposed by the Cruel and Unusual Punishments Clause of the Eighth Amendment and applied to the states

through the Due Process Clause of the Fourteenth Amendment is the

broad constitutional right that Appellants purportedly infringed. See

Wilson v. Seiter, 501 U.S. 294, 296-97 (1991). 2

The district court ruled that the right to personal security protected

by the Eighth Amendment was well established at the time the events

underlying this appeal transpired. But, it is axiomatic that defining the

applicable right at that degree of abstraction is inappropriate.

Anderson, 483 U.S. at 639-40. Rather,

the right the official is alleged to have violated must have

been "clearly established" in a more particularized, and

hence more relevant, sense: The contours of the right must

be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to

say that an official action is protected by qualified immunity

unless the very action in question has previously been held

unlawful, but it is to say that in the light of pre-existing law

the unlawfulness must be apparent.

Id. at 640 (citation omitted); see Malley v. Briggs, 475 U.S. 335, 341

(1986) (Qualified immunity protects "all but the plainly incompetent

or those who knowingly violate the law."). Thus, we must inquire

whether the established contours of the Eighth Amendment were sufficiently clear at the time of the attack to make it plain to reasonable

officers that their actions under these particular circumstances vio-

_________________________________________________________________

2 Because the specific constitutional standard applicable under the

Cruel and Unusual Punishments Clause of the Eighth Amendment supplies an "explicit textual source of constitutional protection" for this

alleged infringement of Winfield's rights, we need not address a substantive due process claim. Graham v. Connor, 490 U.S. 386, 395 & n.10

(1989). Further, because Appellants are not federal actors, our analysis

would be governed by the Fourteenth Amendment rather than the Due

Process Clause of the Fifth Amendment in any event. See U.S. Const.

amends. V, XIV.

 10
lated Winfield's rights. In the context of this case, we ultimately are

called upon to decide whether it was clearly established in February

1993 that an unarmed prison official would be deliberately indifferent

to an inmate's need for safety if, during an attack by a prisoner armed

with a dangerous weapon upon another prisoner, the official instantly

mobilized to take control of the situation but failed to intervene

immediately. We conclude that it was not.

At the time these events occurred in 1993, it was clear that as a

component of their duty to provide inmates with humane conditions

of confinement, prison officials were required to"`take reasonable

measures to guarantee the safety of the inmates.'" Farmer v. Brennan,

114 S. Ct. 1970, 1976 (1994) (quoting Hudson v. Palmer, 468 U.S.

517, 526-27 (1984)). Further, it was well established that encompassed within that duty was a requirement that prison officials take

reasonable steps "`to protect prisoners from violence at the hands of

other prisoners.'" Id. (quoting Cortes-Quinones v. Jimenez-Nettleship,

842 F.2d 556, 558 (1st Cir.), cert. denied, 488 U.S. 823 (1988)); see

also Pressly v. Hutto, 816 F.2d 977, 979 (4th Cir. 1987). Knowledge

by prison officials of a sufficiently serious threat of physical harm

posed by other prisoners and deliberate indifference to such a risk

plainly amounted to a violation of the Eighth Amendment. See

Farmer, 114 S. Ct. at 1976-77 & n.2 (noting that Eighth Amendment

is violated by prison officials when two requirements met: (1) action

or inaction results in or creates a sufficiently serious risk of a deprivation that objectively results in denial of the "minimal civilized measure of life's necessities" and (2) a "sufficiently culpable state of

mind"--here deliberate indifference) (internal quotation marks omitted). Nevertheless, the Court has recognized:

[P]rison officials who actually knew of a substantial risk to

inmate health or safety may be found free from liability if

they responded reasonably to the risk, even if the harm ultimately was not averted. A prison official's duty under the

Eighth Amendment is to ensure reasonable safety, a standard that incorporates due regard for prison officials' unenviable task of keeping dangerous men in safe custody under

humane conditions. Whether one puts it in terms of duty or

deliberate indifference, prison officials who act reasonably

 11
cannot be found liable under the Cruel and Unusual Punishments Clause.

Id. at 1982-83 (citations and internal quotation marks omitted).

We are unable to say that the contours of the Eighth Amendment

right, considered at the appropriate level of particularity, were established sufficiently such that a reasonable official would have understood, at that time or indeed today, that Appellants' response to

Gibson's attack on Winfield was unreasonable. Certainly, this court

had made clear that under some circumstances officials may be liable

for completely failing to take any action to avert an attack by one

prisoner on another when they knew that a substantial risk of harm

existed. See, e.g., Gordon v. Leeke, 574 F.2d 1147, 1152 (4th Cir.),

cert. denied, 439 U.S. 970 (1978). However, the undisputed facts here

demonstrate3 that Appellants did not violate this clearly established

right of Winfield's. First, it is undisputed that none of the prison officials were aware that Gibson possessed a shank or posed a specific

risk to Winfield's safety prior to the moment Gibson emerged from

his cell.4 Thus, the correctional officers became aware of the risk of

_________________________________________________________________

3 Although summarily setting forth some of the facts, in judging

whether the officers' conduct violated clearly established law, the district

court apparently failed to recognize the materiality of other, undisputed

facts disclosed in the affidavits submitted by Appellants--particularly

those facts surrounding the actions taken by the various corrections officers in response to Gibson's attack on Winfield. Because the information

concerning the officers' actions that was revealed in Appellants' affidavits was not called into question by Winfield's opposing submission,

either directly or by an appropriate inference from the facts as asserted

by Winfield, we properly may consider these facts as undisputed for purposes of addressing the legal issue presented. See Celotex Corp. v.

Catrett, 477 U.S. 317, 323-24 (1986).

4 The district court concluded that reasonable officials in Appellants'

positions would have known that permissive attitudes toward alcohol and

dangerous weapons would violate Winfield's clearly established right to

physical safety. This reasoning is misdirected. In assessing whether

Appellants are entitled to qualified immunity, the court must inquire

whether reasonable officers in Appellants' positions would have recognized that their conduct violated Winfield's rights. See Anderson, 483

 12
harm, at the earliest, when Gibson emerged from his cell and

assaulted Officer Williams. See Farmer, 114 S. Ct. at 1982 (recognizing that lack of knowledge of the risk is a complete defense to charge

of deliberate indifference to a substantial risk of harm). Moreover, it

is undisputed that upon seeing Gibson emerge from his cell, the

prison officials immediately mobilized to take control of the situation.

Officer Walker radioed for assistance instantly. Officer Clatterbuck

called out a warning, and all of the officers who had returned to the

first floor immediately ran to obtain batons and then proceeded back

to the second tier to provide aid in ending the attack. Accepting the

undisputed fact that the officers began immediate preparations to

safely intervene in the attack as soon as they became aware of the

risk, the question becomes whether the two unarmed correctional officers who were present when the attack began violated a clearly established right of Winfield's to have the officials immediately intervene.

Winfield is unable to point to any decisions establishing that an

unarmed prison official exhibits deliberate indifference to an inmate's

reasonable need for safety, or acts unreasonably, by failing to intervene immediately in an attack by one prisoner armed with a dangerous weapon on another. Indeed, all of the authority of which we are

aware leads to the conclusion that such heroic measures are not constitutionally required. See Prosser, 70 F.3d at 1008 ("[P]rison guards

have no constitutional duty to intervene in the armed assault of one

inmate upon another when intervention would place the guards in

danger of physical harm."); MacKay v. Farnsworth, 48 F.3d 491, 493

(10th Cir. 1995) (Failure to immediately intervene in physical attack

by one prisoner, who was wielding a shank, upon another held not to

_________________________________________________________________

U.S. at 640. Thus, the pertinent question is whether the law was clearly

established that a failure by prison officials to confiscate immediately

alcoholic beverages possessed by inmates (Winfield concedes that no

Appellant had any knowledge concerning possession of weapons) constituted an unreasonable response to a substantial risk to inmate safety.

Winfield points to no decisions even arguably supporting such a conclusion, and our research has failed to disclose any. We hold that to the

extent that the district court based its decision on a failure to confiscate

the wine, Appellants were entitled to summary judgment on the basis of

qualified immunity.

 13
amount to deliberate indifference in part because prison officials had

called for backup.); Arnold v. Jones, 891 F.2d 1370, 1372 (8th Cir.

1989) ("[U]narmed prison officials have no duty as a matter of law

to physically intervene in a prison fight which may cause them serious injury or worsen the situation . . . ."). The correctional officers

violated no clearly established right of Winfield's because they were

not required to risk serious bodily harm by entering, unarmed, into a

fray with an armed and violent assailant during the short period

before assistance arrived. The undisputed facts demonstrate that

Appellants' response to the risk to Winfield's safety was reasonable.

No clearly established law having been violated, the prison officials

were entitled to qualified immunity.5

IV.

It appears that the principal source of disagreement offered by the

dissent concerns our approach to determining the factual basis to

which we must look in resolving the legal question over which we

possess jurisdiction--perhaps the most difficult aspect of our review

of denials of qualified immunity in an interlocutory appeal and one

that has not yet been resolved conclusively by the Supreme Court. See

Johnson, 115 S. Ct. at 2159 (noting that question of how an appellate

court should determine "what set of facts to assume when it answers

the purely legal question about `clearly established' law" presents a

serious problem).

The Johnson Court recognized that it will often be possible for an

appellate court to utilize the facts that were assumed by the district

court in denying the motion for summary judgment. Id. But, the Court

also acknowledged that in some instances the district court will fail

fully to set forth the facts on which its decision is based. Id. In that

circumstance, the Court explained, "a court of appeals may have to

undertake a cumbersome review of the record to determine what facts

the district court, in the light most favorable to the nonmoving party,

_________________________________________________________________

5 Since the corrections officers who were alleged to have been directly

involved in the events cannot be found to have violated any clearly established right of Winfield's, Warden Bass, who was not present and whose

only connection to the incident was his supervisory role over the officers,

cannot be held liable.

 14
likely assumed." Id.; Behrens, 116 S. Ct. at 842. In our view, when

a district court fails fully to set forth the facts supporting its legal conclusion that a government official is not entitled to qualified immunity, the court of appeals must review the materials submitted to the

district court to determine what the record, viewed in the light most

favorable to the nonmoving party, discloses in order to have a factual

basis upon which to base its legal conclusion.

The dissent, however, opines that in directing courts of appeals to

determine the facts that district courts "likely assumed," the Supreme

Court indicated that our task is not to attempt to divine what the evidence viewed in the light most favorable to the plaintiff actually

showed. Rather, the dissent suggests that we should construct from

the record a set of facts that supports the legal conclusion reached by

the district court. See infra pp. 31-33. We cannot agree.

The rationale underlying the Johnson decision was that "precedent,

fidelity to statute, and underlying policies," namely "considerations of

delay, comparative expertise of trial and appellate courts, and wise

use of appellate resources, argue[d] in favor of limiting interlocutory

appeals of `qualified immunity' matters to cases presenting [neat]

abstract issues of law." Johnson, 115 S. Ct. at 2158. Essentially, the

Court concluded that there was little to be gained, incrementally, in

terms of providing additional protection to officials and much to be

lost in terms of appellate judicial resources by permitting interlocutory appeals maintaining that a district court had erred in concluding

that the evidence presented was sufficient to raise a genuine issue of

material fact warranting trial. See id. at 2156-59. Accepting as the

Johnson Court did, however, that a "cumbersome review" of the

record must be undertaken when the district court fails fully to set

forth the facts upon which its decision was based, the concerns underlying the holding in Johnson do not counsel in favor of a conclusion

that our legal determination should be based upon some mythical set

of facts (i.e., a set of facts other than those shown by the evidence

actually viewed in the light most favorable to the nonmoving party)

that may or may not actually have been relied upon by the district

court. Instead, those concerns indicate that the legal decision should

be based upon a proper view of the evidence presented, taken in the

light most favorable to the nonmoving party. Indeed, the concerns of

avoiding unnecessary delay and wise use of judicial resources that led

 15
the Johnson Court to its principal holding--that courts of appeals possess jurisdiction to decide only the abstract legal issues on interlocutory review--persuade us that in determining what facts the district

court "likely assumed," we must determine what the evidence actually

shows when viewed in the light most favorable to the nonmoving

party.

Moreover, the Johnson Court indicated that this was the proper

course: In discussing the necessity of determining the factual basis

upon which our legal ruling will be premised when a district court

fails fully to set forth the factual basis for its legal conclusion, the

Johnson Court noted that "a rule that occasionally requires a detailed

evidence-based review of the record is still, from a practical point of

view, more manageable than" a rule requiring courts of appeals to

routinely conduct the same type of review. Id. at 2159. Thus, the

Court plainly envisioned that on those infrequent occasions when a

district court does not supply the factual basis for its decision, we

would be required to undertake the type of de novo review that generally would be prohibited.6

Furthermore, the dissent's suggestion that the correct view of the

factual record is not controlling in determining what the district court

"likely assumed," but that instead we should attempt to construct a set

of facts supporting the legal decision of the district court, presents an

absurd paradox. Employing the dissent's mode of analysis, we would

be required to affirm an obviously incorrect legal conclusion, based

on "assumed" and equally incorrect facts, simply because we would

be required to "assume" that the district court "likely" took an incorrect view of the facts in order to support the incorrect legal conclusion

it reached. And, this result, the dissent maintains, is compelled by the

Johnson decision--an opinion grounded in concerns of efficiency and

judicial economy. In our view, the position advocated by the dissent

surely cannot be the one the Supreme Court intended.

_________________________________________________________________

6 That is not to say that when the factual basis for the district court

decision denying qualified immunity is unclear, courts of appeals have

full jurisdiction to consider an appeal of a factual nature. Instead, consideration of the factual record must be limited to determining the appropriate factual basis for resolving the purely legal issue presented. We

recognize, of course, that in practice this distinction may be more theoretical than practical.

 16
Finally, none of the other courts of appeals that have addressed

what the Supreme Court meant when it instructed that we must determine what the district court "likely assumed" have taken the approach

urged by the dissent. See Cottrell v. Caldwell , 85 F.3d 1480, 1491

(11th Cir. 1996) (reviewing record to determine whether genuine

issues of material fact existed when district court failed to set forth

the factual basis for its legal ruling); Heidemann v. Rother, 84 F.3d

1021, 1027 & n.4 (8th Cir. 1996) (concluding that a determination of

what district court "likely assumed" requires court of appeals to

undertake usual, de novo review of record to determine what evidence, viewed in light most favorable to the nonmoving party,

showed).

Similarly, a question of the proper factual basis for our resolution

of the purely legal question over which we possess jurisdiction may

arise when a district court bases its decision on stated facts, but other,

undisputed, material facts are present that dictate the conclusion that

a governmental official is entitled to qualified immunity. For the same

reasons that support our conclusion that this court must look to the

actual evidence presented viewed in the light most favorable to the

nonmoving party when a district court fails to supply the factual basis

for its legal decision, we should not ignore other, undisputed, facts in

rendering our decision on the legal question. Taking account of an

undisputed fact in rendering a legal conclusion neither does violence

to "Cohen's conceptual theory of appealability" nor involves this

court in the type of weighing of the record that the Johnson Court

found unacceptable. Johnson, 115 S. Ct. at 2156-57. Further, a district

court does not possess any institutional advantage in the consideration

of an undisputed fact, and the acceptance of such a fact does not consume significant appellate resources. See id. at 2157-58. On the other

hand, the failure to acknowledge an undisputed fact could result in

considerable delay and inefficiency--for example, if the failure to do

so results in the denial of qualified immunity in circumstances when

the consideration of the undisputed fact would result in an official's

entitlement to it.

In sum, we conclude that when a district court fails to set forth

fully the factual basis upon which its legal conclusion that a governmental official is not entitled to summary judgment on the basis of

qualified immunity, this court reviews the evidence properly before

 17
the district court for purposes of considering the summary judgment

question. It then determines what the evidence, viewed in the light

most favorable to the nonmoving party, demonstrated. This is the factual basis that the district court "likely assumed" in rendering its legal

conclusion and is the factual basis upon which this court must render

its decision on the purely legal issues presented in the appeal. Furthermore, when undisputed material facts are present that the district

court did not consider in ruling on the qualified immunity issue, this

court need not ignore those facts in rendering its legal decision.

REVERSED

WILKINSON, Chief Judge, concurring:

My dissenting colleagues believe they have found in Johnson v.

Jones, 115 S. Ct. 2151 (1995), a decision that will doom the defense

of qualified immunity once and for all. Hailing this development, they

do not let years of qualified immunity jurisprudence, the actual text

of Johnson, or the Supreme Court's explanation of Johnson in

Behrens v. Pelletier, 116 S. Ct. 834 (1996), stand in their way. Writing in this vein, the dissent reads Johnson to essentially destroy interlocutory appeals under Mitchell v. Forsyth, 472 U.S. 511 (1985). The

majority opinion rightly regards Johnson as an important but limited

decision which represents neither the termination of meaningful interlocutory review nor the demise of the qualified immunity defense.

The dissent, by contrast, would enfeeble the law enforcement function

specifically -- and public decision-making generally -- throughout

this circuit.

I.

The dissenting opinion has a technical tenor, but no one should

mistake its import. As the dissent would have it, Johnson virtually

abolished interlocutory appeals of denials of qualified immunity. In

actually applying Johnson, the dissent suggests that the only issue still

subject to interlocutory appeal is whether the legal right allegedly violated was "clearly established." Finding that Winfield had a "wellsettled" right as a prisoner to be "protected against physical harm at

the hands of fellow inmates resulting from the deliberate or callous

 18
indifference of prison officials to specific known risks of such harm,"

the dissent concludes that our review under Johnson is complete.

This marks an ominous development for many public decisionmakers. Although the dissent is indefinite on the point, the only way

this judgment can be affirmed is on the belief that the mere allegation

of a clearly established abstract right suffices for a case to go to trial.

Whether the abstract legal right asserted by the plaintiff is "clearly

established" will rarely be the controversy in a denial of a qualified

immunity defense. The primary issue will almost always be whether

the given facts demonstrate that the right in question has been violated. The instant case illustrates the point. No one disputes the existence of the Eighth Amendment right alleged; the appeal turns instead

on whether undisputed facts disclose a violation of that right. If this

central question, whether given facts show a violation of established

law, is not subject to immediate appeal, a public official's right to

appeal denials of qualified immunity will be of less than little worth.

Even without regard to any other Supreme Court decision, Johnson

cannot be read as a rejection of interlocutory review and a reversal of

Mitchell v. Forsyth. Indeed, the Court's holding in Johnson was

premised on the fact that the "evidence sufficiency" question before

it was distinguishable from the qualified immunity issues subject to

interlocutory appeal under Mitchell. Johnson, 115 S. Ct. at 2156-58.

Furthermore, the plain language of Johnson does not support the

destruction of interlocutory review proposed by the dissent. The

Johnson Court reaffirmed Mitchell's ruling that an order denying a

defendant's motion for summary judgment is immediately appealable:

where (1) the defendant [is] a public official asserting a

defense of "qualified immunity," and (2) the issue appealed

concern[s], not which facts the parties might be able to

prove, but, rather, whether or not certain given facts show[ ]

a violation of "clearly established" law.

Johnson, 115 S. Ct. at 2155. The appellate review authorized under

Mitchell and Johnson thus involves two inquiries: (1) what constitutes

"clearly established" law, and (2) whether"given facts" demonstrate

a violation of such law. See McMillian v. Johnson, 88 F.3d 1554,

1562 (11th Cir. 1996); Shinault v. Cleveland County Board of County

 19
Commissioners, 82 F.3d 367, 370 (10th Cir. 1996). And if this were

insufficiently clear, the Court repeated itself, stating that "the Mitchell

appeal involved the application of `clearly established' law to a given

(for appellate purposes undisputed) set of facts," and finding that a

district court's conclusion "that a given set of facts violates clearly

established law" is a "reviewable determination." Johnson, 115 S. Ct.

at 2156, 2159 (emphasis added).

The flaw in the dissent's interpretation of Johnson is evident from

its conclusion that the law has taken flight from the facts. The dissent

concludes that Winfield's Eighth Amendment right is"well-settled"

solely by examining Fourth Circuit precedent. But if the resolution of

Mitchell appeals requires no more than the incantation of abstract and

settled legal propositions, then Johnson's explanation as to how

appellate courts are to identify which facts are"given" for purposes

of review becomes meaningless. See Johnson, 115 S. Ct. at 2159. The

relevance of any legal proposition will not be clear until the facts to

which the proposition is applied become apparent. Inescapably, we

must say what the given facts are before we can determine "whether

or not certain given facts showed a violation of`clearly established'

law." Id. at 2155.

Despite finding the facts irrelevant to its own analysis of the instant

case, the dissent next discusses at great length how we are to identify

the "given" facts for purposes of interlocutory review under Johnson,

at least in those cases where the district court failed to set forth the

facts on which it relied.1 In such cases, Johnson contemplates that

appellate courts may be forced to engage in "a detailed evidencebased review of the record." Id. at 2159. Acknowledging this, the dissent insists that we may examine the record in such cases, but only

insofar as our review identifies facts which support the district court's

decision:

The best evidence, after all, of what a district court has

"likely assumed" as its predicate facts is not what the court

of appeals believes it should have assumed, but the district

_________________________________________________________________

1 The dissent thus finally addresses the facts of this case, but only after

conceding, solely for purposes of argument, that the court confronts a

reviewable issue.

 20
court's legal determination that on the facts it did assume

(rightly or wrongly) a violation was shown.

Following the dissent's example, we apparently are to comb the

record for any scrap of evidence that could justify the trial court's

denial of immunity while deliberately ignoring undisputed facts

which suggest a contrary conclusion. This is not"review" but a complete waste of time. District courts will simply cease explaining the

factual basis for their denials of qualified immunity, and appellate

courts will be left to rubber stamp their conclusions. We might as well

abolish Mitchell appeals altogether as they will become precisely the

"unwise use of appellate courts' time" that Johnson was trying to

avoid. Johnson, 115 S. Ct. at 2158.

The dissent thus stands the interlocutory review process on its

head. Instead of looking at the facts to determine whether clearly

established law was violated, we are to assume that the law was violated and construct a set of "given" facts to support that conclusion.

Again, the appellate role as envisioned by the dissent is not to review

district court decisions but to rationalize them. The Court in Johnson

said nothing of the sort. When a district court has not adequately set

out the factual basis for its decision, our review of the record of

necessity must be an independent one, and it is incredible to suggest

that we should do anything in undertaking it other than apply appropriate summary judgment standards.

II.

The infirmity of the dissent's analysis of Johnson is all the more

evident when considered in light of prior and subsequent precedent.

The dissent reads Johnson in a virtual time warp, completely disregarding the teaching of Anderson v. Creighton , 483 U.S. 635 (1987),

and relegating Behrens v. Pelletier, 116 S. Ct. 834 (1996), the

Supreme Court's single explanation of Johnson , to a footnote.

A.

The dissent's suggested resolution of this case is a veritable replica

of the Eighth Circuit decision rejected by the Supreme Court in

 21
Anderson. The dissent states that the right to be "protected against

physical harm at the hands of fellow inmates resulting from the deliberate or callous indifference of prison officials to specific known risks

of such harm" was "well-settled" in this circuit at the time Winfield

was assaulted. Having made this observation, the dissent finds our

review to be complete, without considering whether the undisputed

facts entitle the defendants to qualified immunity. Similarly, the

Eighth Circuit in Anderson considered the generic right "to be free

from warrantless searches of one's home unless the searching officers

have probable cause and there are exigent circumstances." Anderson,

483 U.S. at 640. Concluding that this right was"clearly established,"

the Eighth Circuit refused to consider whether Anderson's specific

conduct violated that right and denied him qualified immunity. Id. at

640-41.

The Supreme Court, however, flatly rejected the notion that a court

can address the issue of qualified immunity without reference to the

given facts of a particular case. The Court held that the right the official is alleged to have violated cannot be considered in the abstract

but "must have been `clearly established' in a more particularized,

and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what

he is doing violates that right." Id. at 640. The Court thus noted, "It

simply does not follow immediately from the conclusion that it was

fairly established that warrantless searches not supported by probable

cause and exigent circumstances violate the Fourth Amendment that

Anderson's search was objectively legally unreasonable." Id. at 641.

The Court recognized that if the question of qualified immunity could

be resolved without regard to given facts, "[p]laintiffs would be able

to convert the rule of qualified immunity that our cases plainly establish into a rule of virtually unqualified liability simply by alleging

violation of extremely abstract rights. Harlow [v. Fitzgerald, 457 U.S.

800 (1982),] would be transformed from a guarantee of immunity into

a rule of pleading." Id. at 639.

The dissent would hold that Johnson accomplished the very transformation that Anderson forbade. Seeking to cut off interlocutory

review, the dissent phrases the right at issue in terms so general that

there will always be a sufficient allegation of a violation of clearly

established law. Every prisoner plaintiff can plead an Eighth Amend-

 22
ment right to protection against fellow inmates. If such an abstract

iteration of the right suffices to conclude interlocutory review in favor

of the plaintiff, every district court denial of qualified immunity will

automatically lead to trial. The dissent thus precludes the possibility

that undisputed facts in the particular case will justify an award of

immunity.

B.

The dissent pays no more heed to Supreme Court caselaw subsequent to Johnson than it does to Supreme Court precedent prior to

Johnson. Behrens, the Supreme Court's single explication of Johnson

to date, is relegated to a footnote, perhaps because it represents an

apparently vain attempt on the part of the Supreme Court to foreclose

precisely the sort of over-reading of Johnson proposed by the dissent.

The main holding of Behrens, after all, is that public officers entitled

to claim qualified immunity may bring not one but two interlocutory

appeals on the question of immunity, 116 S. Ct. at 839, hardly the

action of a Court intent on what the dissent has termed a "dramatic

curtailment" of such appeals.

Even where contested facts exist, Behrens indicates that purely

legal issues remain which an appellate court can consider while

respecting the role reserved for trial courts by Johnson. "Denial of

summary judgment often includes a determination that there are controverted issues of material fact, and Johnson surely does not mean

that every such denial of summary judgment is nonappealable."

Behrens, 116 S. Ct. at 842. When reviewing an interlocutory appeal

pursuant to Mitchell, Johnson instructs us not to reconsider a district

court's summary judgment order "insofar as that order determines

whether or not the pretrial record sets forth a`genuine' issue of fact

for trial." Johnson, 115 S. Ct. at 2159. We are not to second-guess a

trial court on questions of "evidence sufficiency." See id. at 2156. No

question of sufficiency is raised, however, when an appellate court

finds that the defendant is entitled to qualified immunity even on the

plaintiff's version of the facts. As the Seventh Circuit has noted, "If

there is no possible resolution of the [factual] disagreement that

would save the plaintiff's case from the defense of immunity, the

appellate court will not have to resolve any factual disagreements . . .

 23
in order to determine whether the defense is good." Anderson v.

Romero, 72 F.3d 518, 520-21 (7th Cir. 1995).

Similarly, where the material facts are undisputed, an appellate

court's determination that the defendant officers are entitled to qualified immunity does not require any reweighing of the evidence.

Appellate courts may determine whether genuinely disputed facts are

material without trespassing on the trial court's domain. Materiality

"is only a criterion for categorizing factual disputes . . . not a criterion

for evaluating the evidentiary underpinnings of those disputes."

Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Unlike the

issue of genuineness, materiality therefore does not consider the sufficiency of evidence supporting a fact but only a fact's legal relevance,

whether it "might affect the outcome of the suit under the governing

law." Id. Given undisputed material facts, the only remaining issue is

the "purely legal determination" whether the defendant's actions were

objectively reasonable, in which case "Johnson does not preclude

appellate jurisdiction." Lennon v. Miller, 66 F.3d 416, 422 (2d Cir.

1995).

In the instant case, the majority opinion thus appropriately finds

that the defendants were entitled to qualified immunity based on the

undisputed material facts. Most notably, the court finds that Gibson

had to get by the unarmed guard Williams in order to attack Winfield.

It is inconceivable that the defendants were deliberately indifferent to

a situation which placed one of themselves at risk, a risk that in fact

resulted in injury to Williams.2

Other circuits have declined to embrace the dissent's constriction

of the appellate role in enforcing qualified immunity. In Prosser v.

Ross, 70 F.3d 1005 (8th Cir. 1995), for example, the Eighth Circuit

reversed a denial of qualified immunity in a case that is the virtual

_________________________________________________________________

2 The dissenting opinion similarly misconstrues Gooden v. Howard

County, 954 F.2d 960 (4th Cir. 1992) (en banc), to the extent that it

implies that Gooden is inconsistent with Johnson and Behrens. As in this

case, the grant of summary judgment in Gooden rested on undisputed

facts regarding what the officers perceived at the time of the incident and

the objective reasonableness of their actions in light of those undisputed

perceptions. See id. at 964-66.

 24
mirror image of this one. Prosser, an inmate, complained that Ross,

a prison guard, had failed to prevent or respond properly to an attack

on him by a fellow inmate. The district court stated, without explanation, that there were issues of material fact which precluded granting

summary judgment. Forced to review the record itself, the Eighth Circuit held that it had jurisdiction under Johnson to consider Ross'

interlocutory appeal because "the facts required to determine whether

Ross is entitled to qualified immunity are not genuinely in dispute."

Id. at 1006-07. Based on the facts that the assailant was armed, that

the armed attack was unexpected, that Ross was alone, and that he

immediately sought help, the court found that Ross had responded

reasonably and could not have been expected to prevent the assault.

Other circuits have taken a similar approach to Mitchell appeals

and have not hesitated to correct the erroneous application of immunity doctrine where the material facts were undisputed or where the

defendant was entitled to immunity even on the plaintiff's account of

events. See Foy v. Holston, 94 F.3d 1528, 1531 n.3 (11th Cir. 1996)

(awarding qualified immunity and finding that Johnson allows immediate review to consider "whether, taking the facts in the light most

favorable to the plaintiffs, clearly established federal rights were violated"); Osolinski v. Kane, 92 F.3d 934, 936 (9th Cir. 1996) (awarding

immunity and finding that Johnson allows immediate review when

the appeal concerns "whether certain given facts show a violation of

clearly established law"); Cantu v. Rocha, 77 F.3d 795, 802 (5th Cir.

1996) (awarding immunity and finding that Johnson allows immediate review when the appeal concerns only "whether an official's conduct was objectively reasonable in light of clearly established law" in

light of "a given . . . set of facts"); Anderson v. Romero, 72 F.3d 518,

520 (7th Cir. 1995) (partially awarding qualified immunity and finding that Johnson allows immediate review"[i]f there is no possible

resolution of the [factual] disagreement that would save the plaintiff's

case from the defense of immunity"); Lennon v. Miller, 66 F.3d 416,

422 (2d Cir. 1995) (awarding immunity and finding that Johnson

allows immediate review where an appeal "poses only a legal question about the objective reasonableness of the defendants' actions

under undisputed facts"); Sanderfer v. Nichols, 62 F.3d 151, 153 n.2

(6th Cir. 1995) (awarding immunity and finding that Johnson allows

immediate review because "the plaintiff's version of events, regard-

 25
less of the sufficiency of the supporting evidence, does not state a

claim for [ ] a [constitutional] violation").

All of these circuit decisions followed Johnson . All of them

involved interlocutory appeals, and all resulted in reversal of a district

court's denial of qualified immunity. The dissent's report of the death

of interlocutory review would thus appear to be greatly exaggerated,

not to mention premature. As these cases illustrate, to adopt the dissent's position would place the Fourth virtually alone among the circuits in refusing to consider whether given facts constitute a violation

of clearly established law.

III.

Only by ignoring the importance of interlocutory appeals to the

vitality of qualified immunity can the dissent read Johnson as a dramatic curtailment of Mitchell. The dissent tells us that although its

interpretation of Johnson "will sometimes force to trial public officials who, under a correct application of qualified immunity doctrine

should not be put to trial," this concern "simply must yield to `competing considerations' of `delay, comparative expertise of trial and

appellate courts, and wise use of appellate resources.'" (Quoting

Johnson, 115 S. Ct. at 2158.) Application of legal doctrine to given

facts, however, is an appellate court's area of comparative expertise.

And Mitchell has already determined that interlocutory review to correct misapplication of immunity principles does constitute a "wise use

of appellate resources." Mitchell likewise indicated that any delay

caused by interlocutory review is necessary to give meaning to the

Supreme Court's constant admonition that "insubstantial claims

should not proceed to trial." Harlow, 457 U.S. at 816; see also

Behrens, 116 S. Ct. at 838; Hunter v. Bryant , 502 U.S. 224, 227

(1991); Burns v. Reed, 500 U.S. 478, 494 n.8 (1991); Anderson, 483

U.S. at 640 n.2; Malley v. Briggs, 475 U.S. 335, 341 (1986); Mitchell,

472 U.S. at 526; Davis v. Scherer, 468 U.S. 183, 195 (1984); Butz v.

Economou, 438 U.S. 478, 507-08 (1978).

Even the dissent acknowledges that there is a cost to permitting

trial of meritless suits against public officers, but it insists that such

costs must "simply be tolerated." The dissent trivializes the significance of interlocutory appeals, assuring us, "When occasional error

 26
does occur, its effect--of forcing unwarranted trial--is exhausted

there; the error is not immunized and may yet be corrected at trial or

on later appeal, with liability thereby avoided." Mitchell held the very

opposite: that qualified immunity "is an immunity from suit rather

than a mere defense to liability; and like an absolute immunity, it is

effectively lost if a case is erroneously permitted to go to trial."

Mitchell, 472 U.S. at 526 (emphasis added); accord Swint v. Chambers County Commission, 115 S. Ct. 1203, 1208 (1995); Digital

Equipment Corp. v. Desktop Direct, Inc., 114 S. Ct. 1992, 1997

(1994); Puerto Rico Aqueduct and Sewer Authority v. Metcalf &

Eddy, Inc., 506 U.S. 139, 144 (1993); Wyatt v. Cole, 504 U.S. 158,

166 (1992); Hunter, 502 U.S. at 227; Siegert v. Gilley, 500 U.S. 226,

232-33 (1991); Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 499-500

(1989); Van Cauwenberghe v. Biard, 486 U.S. 517, 521 (1988). The

dissent assures us that post-trial appellate review can cure any defects,

but Mitchell authorized interlocutory appeals precisely because "[a]

district court's decision [to deny qualified immunity] is effectively

unreviewable on appeal from a final judgment." Mitchell, 472 U.S. at

526.

In thus construing Johnson to eviscerate interlocutory appeals, the

dissent engages in wholesale substitution of its own views for the

insistent teaching of Supreme Court precedent. The dissent simply

projects onto Johnson its own balance of the competing interests at

stake. Finding official accountability to the federal judiciary to be of

much greater importance than the societal costs of meritless lawsuits,

the dissent treats qualified immunity as nothing more than a "mere

defense to liability." Having done so, it places little significance on

interlocutory appeals and readily concludes that"competing considerations" support the virtual elimination of such appeals. Seeking to

make rejections of immunity defenses unreviewable, the dissenting

opinion simply ignores the fact that the Supreme Court has long since

spoken on the balance between the relevant interests, and that we are

not free to revisit the question. The dissent's position might have been

appropriate for an advocate arguing Mitchell, but at this late date it

is only an argument for overruling Mitchell, which the Supreme Court

has not seen fit to do.

IV.

Interlocutory appeals of qualified immunity denials serve several

critical functions. They draw the line of demarcation between the

 27
objectively reasonable exercise of official discretion on the one hand

and the violation of clearly established rights on the other. By requiring review prior to trial, they also constitute a check on the reflexive

resort to trials that would eventually erode the exercise of official discretion and nullify the qualified immunity defense.

Discretion is thus at the core of what the interlocutory appeal protects. Not absolute discretion -- but limited, qualified latitude in making judgments. If we are to have few interlocutory appeals and many

trials, the drastic expansion of litigation will mean the equally drastic

constriction of discretion. Yet every occupation-- be it teacher, parent, corporate executive, or county clerk -- demands the exercise of

channeled discretion. Law enforcement is no exception. Officers

"routinely make close decisions in the exercise of the broad authority

that necessarily is delegated to them." Davis , 468 U.S. at 196. Decisions involving public order "are more likely than not to arise in an

atmosphere of confusion, ambiguity, and swiftly moving events,"

Scheuer v. Rhodes, 416 U.S. 232, 246-47 (1974), and involve the

application of legal standards that are notoriously imprecise, such as

"probable cause" and "excessive force." Officers are not jurists; they

"must often act swiftly and firmly at the risk that action deferred will

be futile or constitute a virtual abdication of office." Id. at 246. Like

many executive officials, law enforcement officers thus are "called

upon to act under circumstances where judgments are tentative and an

unambiguously optimal course of action can be ascertained only in

retrospect." Butz, 438 U.S. at 500 n.28.

Under such conditions, even an official of the highest integrity and

competence will occasionally err. Without the protection of discretion

afforded by qualified immunity and interlocutory review, every mistake "`expos[es] such [officers] as have been honestly mistaken to suit

by anyone who has suffered from their errors.'" Barr v. Matteo, 360

U.S. 564, 571 (1959) (quoting Gregoire v. Biddle , 177 F.2d 579, 581

(2d Cir. 1949)). Public officers are irresistible targets for meritless

lawsuits. See Butz, 438 U.S. at 509-10; Imbler v. Pachtman, 424 U.S.

409, 425 (1976). From detention through incarceration, nearly every

type of law enforcement action is almost certain to invoke the ire of

its subject, providing a constant stream of potential plaintiffs with

recurring motives to sue. Onto this pyre of litigation, the dissent pours

 28
yet more fuel, discarding one of the few deterrents to litigious action

that still exists.

The legal order that the dissent would construct risks rendering law

enforcement officers so fearful of lawsuits that they will simply cease

protecting the public. Cf. Wood v. Strickland , 420 U.S. 308, 319-20

(1975) (threat of liability will "undoubtedly deter even the most conscientious school decisionmaker from exercising his judgment . . . in

a manner best serving the long-term interest of the school and the students"). After all, the safest course is not to exercise one's discretion,

but not to act at all. Doing nothing may not enforce the law or protect

the peace, but it most assuredly will minimize an officer's chances of

becoming a section 1983 defendant.3

If interlocutory review of immunity denials is no longer possible,

then extended discovery and trials of law enforcement actions will

become a way of life. Yet litigation is decidedly not what law

enforcement officers do for a living. Time in court is time off the

street. Whatever incentives may attract persons to the law enforcement profession cannot include the prospect that every step one takes

may turn into a policeman's nightmare and a litigator's dream.

Perhaps fearing the arbitrary exercise of discretion, the dissent pursues an ideal that will never exist, one where frequent trials of policecitizen encounters will sustain every instance of proper official conduct, while excising with surgical precision every mistake. This

vision exists on an ever-receding horizon. The rule of law will not

flourish without the aid of law enforcement, and, until men become

angels, their discretionary actions will be accompanied by mistakes.

But authority in the position of continually having to justify itself will

not be able to assert itself. If the dissenting position becomes the law,

the search for the perfect will have become the lasting enemy of the

good.

Judges Russell, Widener, and Hamilton authorize me to say that

they join in this opinion.

_________________________________________________________________

3 As the circumstances of this case suggest, inaction is not an ironclad

defense against suit, but it will remain an official's most secure protection against constant trials in the absence of interlocutory review.

 29
DIANA GRIBBON MOTZ, Circuit Judge, concurring:

I concur in the judgment and in Judge Wilkins' careful and narrow

opinion for the majority of the court. Of course, I recognize that the

court's holding is, as Judge Phillips' thoughtful dissent well demonstrates, in some tension with the principles set forth in Behrens v.

Pelletier, 116 S. Ct. 834 (1936) and Johnson v. Jones, 115 S.Ct. 2151

(1995). However, I cannot conclude that when, as here, a district

court does not adequately set forth the facts it finds in dispute, the

Supreme Court intended that we determine the facts the district court

"likely assumed" other than by examining, in the light most favorable

to the plaintiff, the factual record before the district court and then

determining if those facts set forth a violation of clearly established

law.

I write separately simply to note that in this case we have no occasion to reach the question of whether we are also at liberty to follow

this approach when the district court has adequately set forth the facts

it finds in dispute. That is, in this more usual case, do we have jurisdiction to go beyond the district court's holding and plumb the summary judgment record to make our own assessment as to what are the

material facts, taken in the best light for the plaintiff, or are we limited to the facts relied upon by the district court. Behrens and Johnson

would seem to hold that we must accept the facts as relied upon by

the district court. However, resolution of that question must await

another day.

PHILLIPS, Senior Circuit Judge, dissenting:

I differ fundamentally with the en banc majority's apparent understanding of what Johnson v. Jones, 115 S. Ct. 2151 (1995), has

instructed us on the scope of our jurisdiction to review interlocutory

orders denying motions by § 1983 defendants for summary judgment

on qualified immunity grounds. On my different understanding and

application of the jurisdictional principles of that decision, I would

hold that because this appeal seeks only to challenge a fact-related,

evidence-sufficiency determination it should be dismissed. Alternatively, if it be considered that the appeal seeks also to challenge a

purely legal determination properly presented for our review--a

premise I believe not warranted--I would affirm the ruling.

 30
I

To get at the difference in our understandings of Johnson, I start

by laying out my understanding of its holding and of its more important implications for this case.

A.

Johnson was taken for review by the Supreme Court specifically

to clarify that which Mitchell v. Forsyth, 472 U.S. 511 (1985), had

held was immediately reviewable by interlocutory appeal from district

court orders denying summary judgment motions on qualified immunity grounds. Clarification was required because some circuits--

including this one--had misunderstood Mitchell on this critical point.

See Johnson, 115 U.S. at 2154 (citing, inter alia, Turner v. Dammon,

848 F.2d 440, 444 (4th Cir. 1988), among cases reflecting erroneous

view of jurisdiction).

The basic point of clarification is clear. The only immediately

reviewable determination embodied in (or constituting the sole basis

for) such an order is the "purely legal one," see Johnson, 115 S. Ct.

at 2156, that if the facts were as the district court assumed them to

be for summary judgment purposes, defendant's conduct would have

violated a then clearly established constitutional (or statutory) right of

plaintiff of which a reasonable official in defendant's position would

have known. Id. at 2155-2156. Not immediately reviewable are "factrelated," id. at 2153, determinations embodied in (or constituting the

sole basis for) the denial, that genuine issues of material fact respecting the qualified immunity defense prevent the grant of summary

judgment. Id. at 2156-2158. The reasons for the reviewable/

not-reviewable distinction are found in the collateral order doctrine of

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949), upon

which Mitchell is based, principally in Cohen's separability requirement: the "purely legal" issue is separable from the merits of the

§ 1983 claim; the "fact-related" issue inevitably will be intertwined

with the merits to some extent. Id. at 2156 (legal issue); 2157

("evidence-insufficiency" issue).1 

_________________________________________________________________

1 A possible semantical problem in making the required conceptual distinction should be noted. Both of the issues that can be raised by motions

 31
B.

How do these two different types of determination emerge in the

litigation process to provide the basis for this critical jurisdictional

distinction? The answer can best be found by keeping in mind the

substantive elements of the qualified immunity affirmative defense

and tracing out the adversarial processes of party presentation and

default by which those elements may be put in issue and withheld or

removed from issue at the trial and appellate levels. Recall first the

substantive anatomy of the qualified immunity defense. It is an affirmative defense--in the same confession-and-avoidance mode as

release, accord and satisfaction and the like--rather than a simple

denial of one or more of the essential elements of the § 1983 claim.

It invokes the immunity principle that even if the§ 1983 claim has

merit (which ordinarily will be denied) the defendant is not liable and

may not be put to trial because the right allegedly violated was not

one so clearly established at the time of the conduct charged to the

defendant that a reasonable official in his position would have known

_________________________________________________________________

for summary judgment on qualified immunity grounds--whether the

facts, as assumed, show a violation of a clearly-established right of

which a reasonable official in defendant's position would have known,

and whether there are genuine issues of material fact respecting a factual

basis for the defense--are issues of law whose resolutions require determinations "as a matter of law." See Mitchell, 472 U.S. at 528 n.9

(whether violation shown); Anderson v. Creighton , 483 U.S. 635, 641

(1987) (whether genuine issues of material fact exist). The required distinction, therefore, is not between determinations"of fact" and determinations "as a matter of law," but, as the Court put it, between "factrelated" determinations (the genuine-issue determination), see Johnson,

115 U.S. at 2153, and "purely legal" determinations (that on facts

assumed, a violation is shown). See id. at 2156. That particular "legal

issues" may be so "fact-related" as not to be "pure" legal issues for particular procedural purposes is a general proposition that has been recognized in other contexts. See, e.g. Griffin v. United States, 502 U.S. 46,

58-59 (1991) (insufficiency of evidence to convict on one of alternative

factual theories is not ground for vacatur of general verdict of guilt where

other ground is supported; though technically a"legal error," evidence

insufficiency involves a "mistake concerning the weight or the factual

import of evidence" that is not the kind of "legal error" concerning a

"mistake about the law" that would require vacatur).

 32
that the conduct charged would violate that right. Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). There are both legal and factual

elements in this defense-principle: purely legal issues respecting the

state of the law at a particular time and factual issues respecting the

circumstances under which the charged conduct occurred, such as

whether the defendant was involved at all or in the critical way

charged; whether there were exigencies affecting the objective reasonableness of the conduct charged, etc. See Anderson, 483 U.S. at

641 (actual information possessed); Malley v. Briggs, 475 U.S. 335,

350 (1986) (Powell, J., concurring and dissenting) (exigencies of time

and circumstance).

A defendant invoking the defense in the district court by motion for

summary judgment may therefore base his motion on either purely

legal, or factual, or both grounds. See Johnson , 226 S. Ct. at 2158

(pointing out that motion's grounds serve to identify basis for its

denial). His motion may, for example, be rested solely on some variant of the following factual positions: (1) assuming (or conceding)

that the conduct charged to me would constitute a violation of clearlyestablished constitutional right, etc., I didn't do it (the Johnson

defense); or (2) assuming (or conceding) that the conduct charged to

me did violate the right alleged, the factual circumstances were such

that I acted under reasonable misapprehension that it would not do so.

See Anderson, 483 U.S. at 646-47 n.6. Both of these positions present

only factual grounds for the immunity defense; no purely legal issue

has been raised in the district court, hence none is a potential issue

for appellate review. Whether summary judgment should be granted

depends entirely upon whether there are genuine issues of fact

respecting the ground of defense ("didn't do it," or "reasonably mistaken under the circumstances"), and a decision denying summary

judgment necessarily rests only on a determination that there are such

issues, i.e., that the non-movant's forecast of opposing evidence is

sufficient to hold the factual defense at issue. If the defendant then

attempts to appeal such a denial order, the appeal should be dismissed, as necessarily seeking review only of the"fact-related" determination which is the order's sole basis. This is the type of "simple"

case, for jurisdictional purposes, represented for example by Johnson

itself. See Johnson at 2153-2154, 2158.

On the other hand, a defendant's motion may be rested solely on

the "purely legal" issue. It would, for example, if it took the position

 33
that (3) assuming (or conceding) that the conduct charged to me did

occur as charged, it did not constitute the violation of a then clearly

established constitutional right. See Mitchell , 472 U.S. 511, 535

(1985) (only issue would then be whether "question was open at the

time the officer acted"). This presents no "fact-related" issue, and a

denial of summary judgment by the district court would necessarily

rest only on a determination that as a matter of law the conduct

assumed or conceded did constitute violation of a well-established

right, etc. An appeal from this order thus lies for review of the "purely

legal" determination which necessarily is the sole basis for the denial.

This, too, is a "simple case" for making the jurisdictional distinction.

C.

But, as the Johnson Court recognized in responding to cogent arguments that making the required jurisdictional distinction frequently

would be too conceptually difficult, or too subject to party manipulation, or too subject to uninformative district court records, see id. at

2158-2159, things can get much more complicated for jurisdictional

purposes. This is most likely to occur where a defendant has rested

his motion on both purely legal and fact-related grounds in the district

court. For example, by contending in his motion both, or alternatively,

that (4) assuming the conduct charged to me did occur as charged, it

would not constitute violation of a clearly-established right, etc.

(purely legal) and, in any event, it did not occur in that way, but while

I was absent from the scene (fact-related). Whether or not cleanly

reflected in the record, every denial of such a two-pronged motion

must, as a conceptual matter, involve determinations both that the

conduct as charged did violate a clearly established right, etc. and that

genuine issues of material fact respecting the defendant's asserted

absence from the scene prevented granting summary judgment on that

ground. And, because it necessarily involves, whether or not

expressly stated, the purely legal determination, such an order, per

Johnson, is "appealable" (reviewable)"to [that] extent." Id. at 2156

(quoting Mitchell, 472 U.S. at 530). Which means that it is not "appealable" (reviewable) with respect to the fact-related, genuine issue

determination, either as a matter of primary or, except perhaps in

exceptional cases, pendent jurisdiction. See id. at 2159.2

_________________________________________________________________

2 Behrens v. Pelletier, 116 S. Ct. 834 (1996), provides an interesting

example of a case treated by the Supreme Court as involving such an

 34
D.

Everything said to this point about the appealability (immediate

reviewability) of qualified immunity denials under Johnson has

assumed that the defendant will properly have invoked the court of

appeal's power to review that which Johnson says it may review. But

Johnson does not purport (nor does any other Supreme Court decision

of which I am aware) to alter for qualified immunity cases the normal

rules of party presentation and default of issues potentially subject to

appellate review. Therefore, notwithstanding the appealability under

Mitchell and Johnson of any purely legal determination embodied in

a qualified immunity/summary judgment denial, reviewability of such

an order in a particular case yet depends upon the defendant's having

properly raised it in the district court and preserved it for review

under the relevant trial and appellate procedural default rules. E.g.,

Fed. R. Civ. P. 46 (contemporaneous objection rule); Fed. R. App. P.

28(a)(2), 28(b) (issues for review must be identified in brief).

E.

This all means that when it appears from the record that a

defendant-appellant is seeking review of a determination that there

_________________________________________________________________

alternatively based motion and therefore a dually-based denial order.

Though principally concerned with whether under Mitchell public officials could successively appeal denials of 12(b)(6) motions to dismiss

and Rule 56 motions for summary judgment on qualified immunity

grounds, the Court had also to deal with the respondent's alternative contention that the summary judgment denial order was not in any event

appealable under Johnson because it was expressly based on a determination that "[m]aterial issues of fact remain." Id. at 842 (internal quotation marks omitted). Not so, said the Behrens Court: "denial of summary

judgment often includes a determination that there are controverted

issues of material fact . . .", id., but this does not mean that where, as in

the case at hand, the denial also "necessarily determined that certain conduct attributed to petitioner (which was controverted) constituted a violation of clearly established law," the latter determination also is not

appealable. Id. It is appealable under Johnson said the Court, which then

reversed the court of appeals' dismissal and remanded to that court to

undertake review of the purely legal determination. Id.

 35
are genuine issues of material fact respecting a factual ground of his

qualified immunity defense ("didn't do it";"reasonably mistaken in

doing it") that require denial of his motion, the appellate court may

not address to any extent the correctness of that determination. Not

having jurisdiction to review it, the court may only dismiss the appeal

if, as in Johnson, the genuine-issue determination is the sole basis for

the denial, see Finelli v. Tabb, 67 F.3d 67 (4th Cir. 1995) (so holding), or decline to review it when the denial order is based upon both

a reviewable purely legal determination and the non-reviewable

genuine-issue determination. See Johnson, 115 S. Ct. at 2159 (no

jurisdiction to review an order "insofar as that order determines

whether or not the pretrial record sets forth a`genuine' issue of fact

for trial") (emphasis supplied).

Though, as the Johnson Court expressly noted, disallowing interlocutory review of erroneous genuine-issue determinations will sometimes deprive officials of the pre-trial and trial-avoidance benefits of

qualified immunity to which they are entitled, the jurisdictional limitations on Cohen collateral order review power compel that result. See

id. at 2158.

F.

Assuming, however, that a purely legal determination is properly

presented for review, what exactly is reviewed? More specifically,

does the court of appeals accept the district court's identification of

the factual predicate for that court's legal determination and, accepting it, review only the resulting "purely" legal determination? Or may

the court of appeals review for error in the district court's identification of the factual predicate that it assumed for summary judgment

purposes? For example, suppose the district court expressly identifies

as the facts it assumed for summary judgment purposes that the

defendant, a prison guard, deliberately failed for twelve hours to

notify an available prison doctor that the plaintiff-inmate had suffered

a broken leg. May the court of appeals do more than consider

whether, on that factual predicate, there would have been a violation

of clearly established Eighth Amendment rights of which a reasonable

official in defendant's position would have known? Could it, for

example, reject the factual predicate, hence the legal determination,

on the basis that under summary judgment procedure rightly applied

 36
it was undisputed that notice was given within three minutes of actual

knowledge?

Though the consequence may seem severe, Johnson 's answer is

plain. Review is confined to the "purely" legal issue whether, accepting the district court's factual predicate, a violation of clearly established law would have occurred. This appears in various ways in the

Court's explanation of why review must be confined, in faithfulness

to Cohen's jurisdictional limitations and to a proper allocation of trial

and appellate functions, to purely legal determinations rested upon

assumed factual predicates.

First off, the Court emphasized the jurisdictional compulsion to

confine review in this way. Interlocutory appeals of qualified

immunity/summary judgment denials, said the Court, best serve the

final judgment rule, "if they [are] limited to cases presenting neat

abstract issues of law." Id. at 2158 (quoting 15A Wright & Miller

§ 3914.10, at 664). As is evident, this legal issue can only be

addressed as an "abstract" one if its resolution does not involve

review by courts of appeals of the factual predicates upon which the

district court made its determination. This is borne out in Johnson's

discussion of how courts of appeal are to identify the factual predicates for the district courts' purely legal determinations when those

courts "simply deny summary judgment without indicating their reasons for doing so." Id. at 2159. Easily done, said the Johnson Court,

when the district court has expressly "stated" the facts it has assumed

in denying the motion. In that situation, said the Court, "the court of

appeals can simply take, as given, the facts that the district court

assumed," and assume the same "set of facts" "when it answers the

purely legal question about `clearly established' law." Id. And, where

the district court has not performed the helpful task of stating the facts

it has assumed so that this must be sought by the court of appeals in

"a cumbersome review of the record," the search still is only for

"what facts the district court, in the light most favorable to the nonmoving party likely assumed," id. (emphasis supplied), not for what

it should have assumed.3

_________________________________________________________________

3 Conceptually, abstraction into"pure" law occurs in the process of taking as a "given" or as "undisputed""for appellate purposes" the facts

 37
Can the Court actually have intended interlocutory review to be

limited in this further way--that is, in addition to the genuine-issue

limitation? The consequence will be an inability of courts of appeals

to correct manifest district court error in identifying the facts properly

to be assumed for summary judgment purposes, and resulting error in

denying a defendant's entitlement to qualified immunity in advance

of trial. This is a serious consequence, but it is one no more inimical

to the purposes of qualified immunity than is the clear inability of

courts of appeals--under Johnson--even to address manifest district

court error in making "evidence-sufficiency" determinations.4 And, as

the Johnson Court pointed out, the fact that that flat jurisdictional limitation will sometimes force to trial public officials who, under a correct application of qualified immunity doctrine should not be put to

trial, simply must yield to "competing considerations" of "delay, comparative expertise of trial and appellate courts, and wise use of appellate resources." Id. at 2158. In other words, occasional district court

error in denying summary judgment either on the grounds that there

_________________________________________________________________

assumed by the district court as predicates for its legal determination. See

Johnson, 115 S. Ct. at 2156, 2159; see also Behrens, 116 S. Ct. at 842

(public official may "claim on appeal that all of the conduct which the

District Court deemed sufficiently supported for purposes of summary

judgment met the Marlow standard of `objective legal reasonableness'")

(emphasis added).

4 As a moment's reflection will demonstrate, if de novo review of the

district court's identification of the factual predicates for its purely legal

determination is not precluded, courts of appeals can by that means

effectively engage in the very evidence-sufficiency review that Johnson

directly forbids. To ask the question what facts the district court should

have assumed in determining whether, applying the summary judgment

standard, they showed a violation of clearly established right of which a

reasonable official in defendant's position would have known, is indistinguishable in practical effect from the process of asking whether there

were, as determined by the district court, genuine issues of fact respecting whether under the circumstances a reasonable official in defendant's

position would have known that his conduct would violate the claimed

right.

It is exactly by this back-door route that I believe the majority in this

case has effectively conducted the de novo genuine-issue review forbidden by Johnson. See Part II.B., post.

 38
are genuine issues of fact respecting a factual ground of qualified

immunity defense ("didn't do it" or "reasonably mistaken") or in identifying the factual predicate for a purely legal ground of defense

("facts assumed don't constitute violation of well-established constitutional right"), must, in deference to countervailing considerations,

simply be tolerated.

G.

In sum, I read Johnson as having confined interlocutory appellate

review of district court orders denying motions for summary judgment on qualified immunity grounds to a narrow,"abstract" issue of

"pure" law: whether "tak[ing] as given" the facts assumed (rightly or

wrongly) by the district court, id. at 2159, those facts show a violation of clearly established law, etc. This means that interlocutory

review is not available with respect either to (1) determinations by

district courts that there are genuine issues of material fact respecting

a factual ground for the defense which require the denial or

(2) determinations by district courts of those facts that are to be

assumed, for summary judgment purposes, in deciding whether they

show a violation of clearly established right of which a reasonable

official in defendant's position would have known.

This involves a dramatic curtailment of the scope of interlocutory

review which was thought proper in this--and other--circuits before

Johnson's clarification of Mitchell. Our understanding, plainly

revealed in our cases, was that "fact-related," genuine issue determinations as well as purely legal determinations were reviewable on

interlocutory appeals of right under Mitchell . See, e.g., Turner, 848

F.2d at 444 (4th Cir. 1988) (jurisdiction assumed to conduct de novo

record review of district court's determination that genuine issues of

fact respecting factual grounds of defense precluded grant of qualified

immunity motion; district court affirmed); Gooden v. Howard County,

954 F.2d 960, 965-966 (4th Cir. 1992) (en banc) (same; district court

reversed).

The more limited scope of review mandated by Johnson necessarily will allow district court errors in these fact-related determinations

to go undetected at the summary judgment stage and so will deprive

some public official defendants of the trial avoidance benefits to

 39
which qualified immunity entitled them. This, however, is a risk of

which the Johnson Court was expressly aware and which it thought

nevertheless compelled by jurisdictional constraints on collateral

order review and by considerations of prudent judicial administration.

See Johnson, 116 S. Ct. at 2158.

To put those risks in perspective, two points should be noted.

(1) The practical effect is not to abrogate but only to allocate to the

district courts final responsibility for two fact-related determinations

in pre-trial qualified immunity applications; errors in those determinations will--as in all matters--be the rare exception rather than a frequent occurrence in those courts. (2) When occasional error does

occur, its effect--of forcing unwarranted trial--is exhausted there;

the error is not immunized and may yet be corrected at trial or on later

appeal, with liability thereby avoided. In any event, as I understand

Johnson, its fundamental point is that the game--of laborious interlocutory evidence review--is simply not worth the candle--of identifying and correcting the occasional district court error that will occur

both in identifying genuine issues of fact respecting factual grounds

of the defense and in identifying the factual predicates for denials of

summary judgment on purely legal grounds.

II

On this understanding of Johnson and its implications for this case,

I would dismiss this appeal on the basis that the appellants' appeal

only seeks review of the district court's unappealable fact-related

determination that there are genuine issues of material fact respecting

"what happened," hence of the objective reasonableness of their conduct.

Assuming, however, for purposes of this case that somehow--as

the majority has concluded--the appeal properly presents for our

review a district court determination of the purely legal issue--

whether on the facts assumed a violation of clearly-established law,

etc., was shown--I would affirm that determination.

I take these in order.

 40
A.

On any fair reading of the record in this case, the only determination by the district court that appellants have sought to "appeal" is the

fact-related determination that there were genuine issues of material

fact respecting "what happened," hence whether what happened

involved their violation of a clearly established right, so that summary

judgment was inappropriate.

To demonstrate that, we should start with the appellants' motion

for summary judgment as made and supported in the district court.

See Part I.B. ante. In that motion, which sought dismissal both on the

merits and on qualified immunity grounds, the appellant-officers did

not, as I read the record, actually contend that as a matter of law Winfield's complaint did not allege a violation of constitutional right, nor,

alternatively, that the right allegedly violated was not then clearly

established. Instead, as shown in their motion papers, they effectively

conceded that under such decisions of this court as Pressly v. Hutto,

816 F.2d 977, 979 (4th Cir. 1987), the right asserted by Winfield of

convicts to be "protected against physical harm at the hands of fellow

inmates resulting from the deliberate or callous indifference of prison

officials to specific known risks of such harm" was then well-settled

in this circuit. J.A. 14, 72. Their qualified immunity defense was

therefore not rested on the purely legal ground that assuming the conduct charged to them occurred, it would not have constituted a violation of that clearly established right. Instead, it was rested on the

purely factual ground that "the facts do not give us such a case here;"

that on the "actual" facts as asserted in their supporting affidavits,

their conduct could not have constituted violation of the acknowledged right because it lacked the requisite deliberate indifference. See

id. This is a factual defense essentially indistinguishable from the

simple "weren't there, didn't do it" factual defense that was raised as

the sole basis for the officers' motion in Johnson.5 See Part I.B.ante.

_________________________________________________________________

5 Though a factual defense of this sort--"didn't do it," or "didn't have

the requisite intent"--goes as well to the merits of a § 1983 claim, its

assertion as the basis for qualified immunity dismissal is both conceptually sound and practically warranted. And it of course provides the most

complete example of an intertwining, hence inseparability for interlocutory review purposes, of the claim on the merits and the qualified immunity defense. See Johnson, 116 S. Ct. at 2157, 2158.

 41
The district court's opinion denying the two-pronged motion,

though not as helpful for purposes of making the Johnson distinction

as we might wish,6 is plain enough for our purposes. The court's

memorandum opinion conflated its rulings on the merits and qualified

immunity grounds of the motion. As to the merits defense, which was

rested essentially on the same factual "no deliberate indifference"

grounds as was the qualified immunity defense, the court expressly

concluded that "there are genuine issues of material fact," that

"[i]ndeed . . . this case is peculiarly fact-specific and should proceed

to trial on the merits." J.A. 80.

Specifically addressing the qualified immunity defense, the court

then opined that the constitutional right asserted in Winfield's complaint and responsive affidavit was--as appellants had effectively

conceded--well-settled at the time of the assault. 7 J.A. 81. Having

already determined, in ruling on the merits defense, that there were

_________________________________________________________________

6 Which is said with no implied criticism of the court. Under this

court's pre-Johnson precedents, neither litigants nor district courts were

on notice of any need for special precision in making and ruling on summary judgment motions on qualified immunity grounds. Under our unrestricted scope of review regime, we had no occasion to differentiate

between the fact-related and purely legal grounds of orders denying summary judgment, and litigants and district courts therefore properly felt no

compulsion to help us in that respect.

That we deal in this case--deemed by a majority of the court to be sufficiently important for en banc consideration--with such an imprecise

record may well suggest the improvidence of that decision. Hard cases,

in the substantive sense, tempt courts to make bad law, and so may

poorly developed records, particularly those created under a procedural

regime which no longer controls on appeal. But--here we are.

7 Here is one of the anomalies that might be expected in a pre-Johnson

district court ruling in this circuit, and that probably will not recur under

the new regime. See note 6, ante. As indicated, the defendant officers did

not--certainly did not clearly--raise the "purely legal" issue in their

motion, instead apparently conceding or assuming it arguendo, in relying

solely on their factual defense. The district court's ensuing statement that

the right asserted was a well-settled one was therefore probably not technically a "determination" of a contested legal issue, but a passing comment that could not have been thought in pre-Johnson days to have any

consequence for interlocutory review of the denial order.

 42
genuine issues of material fact respecting "what happened," the court

did not expressly reiterate that conclusion with respect to the qualified

immunity defense. But it is manifest that the existence of genuine

issues respecting "what happened," hence whether the appellants'

conduct was as a matter of law objectively reasonable (not deliberately indifferent), was the basis for the court's denial. For the court

specifically identified as controverted facts it considered material to

the defense Winfield's assertions in affidavit that some of the

appellant-officers were forewarned of the risk posed by Gibson to

other inmates' safety by their knowledge that he had a weapon and

had been consuming alcohol. Assuming that were true, the court

opined "the officers [were] bound to know that the safety of other

inmates was at risk" and that their "permissive attitude . . . would violate the inmates' right to continued protection and security." Without

further elaboration on the factual issues, the court then denied the

qualified immunity motion.

It seems clear that at this point in the record the district court had

determined (rightly or wrongly) that there were genuine issues of

material fact respecting "what happened" that required denial of the

motion. It is less clear, but possible, that it had also made a "purely

legal" determination--thinking the issue had been raised--that on the

facts as it assumed them a violation of clearly established law of

which reasonable persons in the officers positions would have known

was shown. In any event, whatever the determinations actually made,

the officers could not under Johnson appeal the denial order insofar

as it rested on a genuine-issue determination, but only insofar as it

rested on any "purely legal" determination that was made. Furthermore, even if there was a purely legal determination that was appealable, it is not entitled to review on this appeal--absent extraordinary

circumstances--unless properly presented for our review.

To take the next step in the jurisdictional inquiry we must then

determine from the record what issues the appellants have sought to

"appeal." How do we do this? The notice of appeal ordinarily will not

tell us; it is required only to identify the "order, or part thereof" from

which appeal is taken, and not the legal rulings on which it is based.

Fed. R. App. P. 3(c). So, the notice of appeal here does not perform

the required service. See J.A. 83. If the Federal Rules of Appellate

Procedure are properly observed, the appellants' brief should tell us,

 43
for the "issues" section of the appellant's primary brief is required to

include "[a] statement of the issues presented for review." Fed. R.

App. P. 28(a)(3). The brief in this case regrettably does not do so.

With respect to the district court's denial of the motion for summary

judgment on qualified immunity grounds, the issue is stated in

unhelpful general terms simply as "whether the officers are entitled

to qualified immunity as to all of Winfield's claims." J.A. 8. We get

the answer here with sufficient precision, however, in the argument

section of the appellants' brief. There, in the portion devoted to their

qualified immunity defense, it is plain that the officers do not challenge (as they did not in the district court) the district court's observation (determination?) that the constitutional right alleged was "clearly

established" at the critical time, but only the court's essential determination that there were genuine issues of material fact respecting the

reasonableness of the officers' conduct. The entire burden of the

appellants' argument is that the evidence was insufficient to create a

triable issue of material fact on this element of their defense and that

on the undisputed evidence they had not violated Winfield's right by

their failure to intervene to protect him. J.A. 20-26. Their argument

on the point is summed up in the assertion that on the summary judgment record, there was "[n]o dispute regarding the reasonableness of

. . . these officers' perceptions." J.A. 21-22.

The district court, however, determined that there was such a dispute. And, because that fact-related determination is the only one

sought to be appealed by appellants and as such is not appealable

under Johnson, I would dismiss this appeal. 8

_________________________________________________________________

8 No one could suggest that this is one of those cases where, in an exercise of our discretion, we should, because of special circumstances, consider an issue not actually raised and determined by the district court. See

Singleton v. Wulff, 428 U.S. 106, 120-121 (1975) (general rule subject to

exception only in special circumstances such as the need to avoid "clear

injustice" or where "resolution is beyond any doubt"). This surely is no

such case. Indeed, the ambiguous record and novelty, for us, of the issues

presented strongly militate against using this case as a vehicle for definitive exploration and application of Johnson's new (for us) appellate

review regime.

 44
B.

The majority, however, has concluded that the appeal properly

seeks and properly presents for our review a purely legal determination that is appealable under Johnson. As indicated, I disagree with

that, believing (1) that no such issue was actually raised for determination by the district court and (2) that if it was, the district court's

determination has not been properly presented for our review on this

appeal.

Assuming, however, that such a determination was made and is

properly before us, I would affirm it. The question presented, if the

issue is before us, is whether the facts assumed by the district court

show a violation of clearly established right of which reasonable officials in appellants' position would have known.

The majority, extensively reviewing the summary judgment materials before the district court, concludes that no such violation was

shown. But it is obvious that this conclusion is reached not on the

basis of the facts "likely assumed" by the district court, but on the

basis of facts the majority concludes should have been assumed by

that court on a right application of summary judgment principles.

Indeed, the majority says--in the course of directly responding in

Part IV of its opinion to the opposing position of this dissent--that

this is exactly what it has done. See ante at 16. And, it purports to find

authority for doing so in what it perceives as the course "plainly envisioned" by the Johnson Court: that "on those infrequent occasions

when a district court does not supply the factual basis for its decision,

we would be required to undertake the type of de novo review that

generally would be prohibited." Id.

With all respect, this is not, as a simple matter of textual exegesis,

what the Johnson Court indicated that it"envisioned." Had it been

what was intended, the Court surely would have said a very simple

thing, such as: "When, however, the district court has failed (completely [?] or sufficiently [?]) to identify the predicate facts for its

purely legal determination, then, as a matter of necessity, the court of

appeals must make its own de novo determination, applying summary

judgment standards, of the predicate facts properly to be assumed."

The Court said no such thing, nor can such a reading be implied from

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anything it did plainly say. Perhaps the majority--and the other courts

which it says agree with its reading of Johnson on this point--believe

that this is what the Court must have had in mind, or should have had

in mind, given the difficulty of divining from a summary judgment

record what another court "likely assumed." But that of course is not

our function in interpreting Supreme Court mandates. And, in any

event, as I believe can be demonstrated, the process is not that difficult for courts already required on occasion to divine the likely holdings of highest state courts on matter of state law, or what "jurists of

reason" likely would think about the "newness" of a constitutional

rule, or whether four Justices of the Court likely would vote to grant

a petition for certiorari, etc.

Turning to that process here, the proper question for us is what

facts the district court "likely assumed" as that can be gleaned from

the admittedly unusual record search that Johnson recognized might

be forced by the district court's failure specifically to "state" them?

How do we find facts "likely assumed" without simply doing what the

majority has done here: simply impose on the district court the proper

factual assumption and review its legal determination for error on that

basis? Surely we must pay some attention--though we seek only what

was likely assumed rather than what should have been--to what summary judgment procedure properly applied would have identified as

the facts to be assumed in making the legal determination. That, after

all, must be taken as the process that guided the district court in identifying those predicate facts. But "likely" presumes the possibility of

error in that ultimate assumption, and error that must be tolerated in

order to confine interlocutory review within its"purely legal" bounds.

The best evidence, after all, of what a district court has "likely

assumed" as its predicate facts is not what the court of appeals

believes it should have assumed, but the district court's legal determination that on the facts it did assume (rightly or wrongly) a violation

was shown.

Seeking on that basis what facts the district court here "likely

assumed," as opposed to what it should have assumed on the summary judgment record, the answer seems plain to me. And, plainly to

support the court's determination that on those assumed facts, a violation was shown. My analysis would run as follows:

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The district court's specific statement of the predicate facts it

assumed is meager: "it appears from the factual allegations that prison

inmates are allowed liberal access to alcoholic beverages and dangerous weapons"; corrections officers therefore were"bound to know

that the safety of other inmates was at risk." J.A. 81-82. Elsewhere,

however, as directly indicative of its reasoning, the court referred to

record materials that could show a number of material facts: that just

before the incident at issue, certain of the appellant-officers were

aware that Winfield and his eventual attacker, Gibson, had been

drinking wine with other inmates in Gibson's cell; that the plaintiff

and Gibson got into a fight but then went into their respective cells;

that the appellant-officers "could have locked the inmates in their

cells but failed to do so"; that "[s]hortly thereafter, Gibson apparently

ran out of his cell and struck [appellant] Williams with his homemade

shank" before entering Winfield's cell and stabbing him; that a third

inmate, Scott, intervened in the fight and subdued Gibson while "certain [appellants] watched Scott intercede but did nothing to assist

him"; and that the [appellants] assert that[appellant] Walker immediately signaled for help, but that the assault was over by the time other

officers arrived on the scene." J.A. 78-79.

Looking beyond these materials specifically identified by the court,

other portions of the record flesh out the court's apparent factual

assessment of the situation revealed. Winfield's affidavit asserted that

an officer Choice saw his original fight with Gibson but did nothing

until several other officers converged on the scene. J.A. 66-67. These

officers or at least some of them could be found to have known that

the inmates had been drinking, J.A. 69, and, according to the district

court, that they had easy access to weapons, J.A. 82. Following their

fight in the presence of some of the appellants, Gibson and Winfield

went to their cells, but the guards failed to take the obvious step that

would have put an end to any immediate danger; that is, close and

lock the cells. See J.A. 78 (District Court Op.). Even after Winfield,

by his own account, had several times pressed the buzzer that indicated that he wanted his door closed and locked, the guards did nothing and the door remained open. J.A. 67. Meanwhile, according to

Winfield, "Gibson was mouthing off to the officers as he went to his

cell making threats that he was going to `squash this now', referring

to me." J.A. 67. Some indeterminate but brief time after Gibson went

into his cell, he retrieved a shank and then reemerged from his cell.

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Gibson then entered Winfield's cell and began to stab him as two

officers stood and watched. J.A. 68. At a later grievance meeting,

Williams stated that the reason he did not intervene was that a

Lt. Hicks had ordered the officers not to go into the cells. J.A. 68.

Neither the timing of nor the reason for that order, if it was given,

appear in the record. As two officers watched the stabbing in progress, a third inmate, one John Scott, pushed through the two officers

at the door to the cell and did intervene. Neither officer came to

Scott's aid, however. J.A. 68. According to this inmate, the officers

continued to stand by doing nothing even after Scott had gotten Gibson's weapon hand under control. J.A. 57. During this struggle with

Gibson, according to Scott, Scott asked for help from the guards, several of whom were standing at the door "with enough man-power to

take control" if they had only been willing to respond to Scott's

request for help. But the guards were not willing to act. J.A. 57.

Of course, the appellants' summary judgment motion and supporting materials present an alternative factual scenario in which they are

completely blameless, certainly not deliberately indifferent to Winfield's plight. The majority, accepting critical aspects of their account

as "undisputed" by any properly countering materials from Winfield

as non-movant, finds error in the district court's legal determination.9

But, as indicated, it is plain from the record that the facts as

asserted in the appellants' motion papers were not those "likely

assumed" by the district court. Instead, it is obvious that that court

assumed--and plausibly in this case assumed (though that is not

_________________________________________________________________

9 Incidentally, it bears noting that even if the court were properly conducting a straight de novo review, it would not be justified in accepting

certain of the critical facts it relied on as "undisputed" because Winfield

as non-movant did not counter them head-on. Where, as was the case

here, a movant's forecast of critical evidence is undisputed for the obvious reason that it was in exclusive control of the movants (e.g. that no

guard knew that Gibson had a shank; that the guards followed proscribed

procedures when Gibson emerged from his cell), the nonmoving party

cannot be considered under obligation to deploy specific facts challenging the credibility of the movant's assertions. See 10A Wright, Miller &

Kane, Fed. Prac. & Proc.: Civil § 2726 at 120-21, § 2727 at 137-43

(1983). At the time these facts were said to have occurred, Winfield was

in his cell with no means of disputing them directly.

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critical)--a quite different scenario adequately inferable from Winfield's pleading and supporting materials. Under that "likely

assumed" scenario, prison guards who were aware that inmates in the

Winfield/Gibson cell-block area had access to alcoholic beverages

and that some possessed dangerous weapons, did nothing to put a stop

to conduct that they were bound to know posed a general risk of violence and harm to all inmates. Having witnessed a fight between Gibson and Winfield that occurred in that general atmosphere, some of

the appellant-guards deliberately chose not to lock the two in their

respective cells, either on their own initiative or in response to Winfield's request for protection by sounding his alarm buzzer. When

Gibson then rushed out of his cell towards and into Winfield's where

he stabbed him repeatedly with a metal shank, none of the appellants

made any effort to intervene, though an opportunity was clearly presented to attempt prevention or interruption of the stabbing without

risk of any greater harm than is a normal incident to the official

responsibilities of the position occupied. In all this, the appellantguards involved, though aware of a serious risk that one prisoner

would harm another, adopted a stance of deliberate indifference to

that risk, choosing instead to leave the matter to be resolved by the

inmates rather than risk any harm to themselves.

If those "likely assumed" facts were established in proof--as they

might or might not be--the conduct involved would constitute violation of a clearly established right of which reasonable officials in

these appellants' positions would be aware. See Farmer v. Brennan,

114 S. Ct. 1970, 1976 (1994) (recognizing right as established in earlier cases).

If this issue were properly before us, the district court's denial of

summary judgment on the basis of these assumed facts should, therefore, be affirmed.

III

Seeking to clarify that which, under collateral order doctrine, is

reviewable by appeal from interlocutory orders denying summary

judgment on qualified immunity grounds, the Supreme Court in

Johnson v. Jones recognized that making the distinction between

"fact-related" and "purely legal" determinations that the doctrine

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required sometimes would pose conceptual and practical problems for

courts of appeals. Two of those problems (assuming the related issue

is before us for review) are presented in this appeal to a court for

which they are new issues under Johnson's new (for this court) appellate review regime. One is the problem of identifying the predicate

facts "likely assumed" by a district court in making its purely legal

determination that on those facts a violation of clearly-established

constitutional right has been shown when those facts have not been

expressly stated by the court. The other is the nature and scope of

review of that purely legal determination when it has properly been

appealed. In my view, the majority here has failed properly to apply

Johnson's teaching to either of these.

The first, fortunately, is not likely to recur too frequently. If this

case teaches anything, it is the special need for express statements by

district courts of the predicate facts they have assumed in ruling that

on those facts a violation of clearly-established constitutional right

has been shown. That lesson absorbed should spare us from more

cumbersome searches for facts "likely assumed."

The other problem--what it means when reviewing a district

court's purely legal determination to "take as given" the predicate

facts assumed by that court as the basis for its determination--will

persist. On that problem, the majority has now spoken but, with all

respect, wrongly in my view and with unfortunate consequences--

both for the courts and for § 1983 claimants, the deserving among

them as well as the undeserving.

Judges Hall, Murnaghan, Ervin, and Michael authorize me to say

that they join in this opinion.

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