1 United States Court of Appeals,

Fifth Circuit.

Nos. 93-1964, 93-9066.

Mary Elizabeth DUNN, Plaintiff-Appellee-Cross-Appellant,

v.

Mike DENK, Defendant-Appellant-Cross-Appellee.

June 13, 1995.

Appeals from the United States District Court for the Northern

District of Texas.

Before POLITZ, Chief Judge, REAVLEY and BARKSDALE, Circuit Judges.

POLITZ, Chief Judge:

Mike Denk, a Texas Department of Public Safety officer,

appeals an adverse jury verdict in Mary Elizabeth Dunn's civil

rights lawsuit. Dunn cross appeals, seeking a new trial on

damages. We affirm in part, vacate in part, and remand for further

proceedings.

Background

Viewing the evidence most favorably to the jury's verdict we

find the following scenario. On a weekend pass from a mental

hospital, Dunn was being driven home by her friend, Hassan Keshari.

As they approached an i ntersection Keshari spotted trooper Denk,

who recently had cited him for minor traffic infractions. "Watch,"

Keshari told Dunn, "he is going to pull me over." Keshari was

right. Although he came to a full stop at the intersection before

turning, Denk stopped him and issued a ticket for "cutting the

corner." Denk also took Dunn's driver's license to ticket her for

not wearing a seatbelt. A check of her license revealed an1 The evidence reflects that Dunn had attended driver's

school to have the ticket dismissed but that the requisite

paperwork had not been completed.

2 According to Denk's measurements the ditch was about two

feet deep and the edge was approximately seven feet from the side

of the highway.

2 outstanding warrant for failure to appear in relation to a speeding

ticket. 1 Denk told Dunn to exit her vehicle; when she stood up,

he informed her that she was under arrest. Shocked, Dunn collapsed

into her seat. Despite Keshari's protestation that she had just

left the hospital, Denk pulled her from the car. The motion was

such that she was thrown, face down, into a d itch by the side of

the road. 2 With his knee in the small of Dunn's back Denk

handcuffed her, pulled her up by her arms, placed her in the squad

car, and transported her to jail where he calle d her a "bitch."

Denk filed a charge of resisting arrest which the district attorney

declined to prosecute.

Dunn brought suit under 42 U.S.C. § 1983, charging Denk with

malicious prosecution and the use of excessive force. A jury

returned a verdict for Denk on the former and for Dunn on the

latter, awarding $10,000 in punitive damages but no compensatory

damages. After unsuccessfully seeking post-judgment relief, Denk

appealed the adverse judgment and Dunn cross appealed the failure

to award actual damages.

Analysis

1. Qualified immunity.3 Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995, 117 L.Ed.2d

156 (1992).

4 Johnson v. Morel, 876 F.2d 477 (5th Cir.1989) ( en banc ).

5 Wells v. Bonner, 45 F.3d 90 (5th Cir.1995).

6 Johnson, 876 F.2d at 480.

3 Although no longer required, 3 at the time of this incident

significant injury was a nece ssary element of an excessive force

claim. 4 Accordingly, to defeat Denk's qualified immunity defense

Dunn was obliged to prove a significa nt injury. 5 Denk maintains

the evidence of such was legally insufficient.

Physically, Dunn suffered only bruises but her psychological

injury was substa ntial. The evidence reflects that the incident

sidetracked her recovery from depression. According to Dr. Richard

C. Bibb, her psychiatrist:

I felt that she was traumatized emotionally, and our term for

that in the psychiatric field is post traumatic stress

syndrome.... What Ms. Dunn was left with was just an

unforgettable event which

... will endure probably the rest of

her life, which will leave her prone to anxiety and panic in

situations that are usually considered routine, that will have

a very subtle effect on her psychic stability for an

undetermined period of time, which could be years.

This was more than mere "transient distress" which does not meet

the "significant injury" threshold. 6 Denk insists, however, that

psychological harm, no matter how severe, did not constitute

significant injury under clearly established law at the time of the

arrest. We are not persuaded. It was clearly established before

January 1990, when Denk arrested Dunn, that both physical and7 See, e.g., Hinshaw v. Doffer, 785 F.2d 1260 (5th Cir.1986);

Keyes v. Lauga, 635 F.2d 330 (5th Cir.1981).

8 Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir.1981).

Shillingford spoke in term of "severe injury"; when we adapted

the Shillingford test to meet the requirements of Graham v.

Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), we

used the term "significant injury." There is no indication that

we intended a "significant injury" to be more severe than a

"severe injury." See Brown v. Glossip, 878 F.2d 871 (5th

Cir.1989).

9 810 F.2d 1363, 1376 (5th Cir.1987).

10 834 F.2d 1223 (5th Cir.1988), cert. denied, 493 U.S. 822,

110 S.Ct. 80, 107 L.Ed.2d 46 (1989).

11 See also Coon v. Ledbetter, 780 F.2d 1158 (5th Cir.1986)

(recognizing the constitutional claim of arrestee's daughter, who

4 psychological injuries were compensable in civil rights actions. 7

We developed a significant injury requirement to weed out

c omplaints that were "so minor as to occasion only a tort claim,

not a constitutional invasion." 8 As a matter of law, however, this

circuit has never restric ted the injuries giving a claim

constitutional dimension to merely those of a physical nature. To

the contrary, as early as 1987 we re cognized that psychological

injury sufficed to support a constitutional cause of action. In

Lynch v. Cannatella, an excessive force case, we held that an

allegation of "a change in personality

... as if [the plaintiff

was] becoming crazy" 9 stated a sufficient injur y to withstand

summary judgment on the ground of qualified immunity. In H inojosa

v. City of Te rrell, Texas, 1 0 although we found that the momentary

fear experienced by the plaintiff when a police officer pointed a

gun at him did not rise to the level of a constitutional violation,

we expressly declined to impose a requirement of physical injury. 11suffered only emotional trauma in the defendants' assault on the

family trailer home).

12 Johnson, 876 F.2d at 480 n. 1.

13 901 F.2d 1276 (5th Cir.), cert. denied, 498 U.S. 926, 111

S.Ct. 309, 112 L.Ed.2d 262 (1990). In Wisniewski, we found that

a prison escapee's complaints of fright and bad dreams resulting

from his treatment upon apprehension did not present a jury

question of significant injury.

14 The dissent advances policy arguments against recognition

of nonphysical significant injury. Its arguments are moot in

light of Hudson. In any event, its complaint that a traumatic

experience for one person might cause mere transient distress for

another highlights a problem with the significant injury

requirement itself, not with the acceptance of psychological

injury as potentially significant; it puts the focus on the

effect of the officer's action on the plaintiff rather than on

the relationship between the need for force and the amount of

force exerted, where it properly belongs.

5 The dissent conflates factual and legal sufficiency. In a

footnote in Johnson v. Morel we stated, "We think it unlikely that

such a significant injury will be caused by unnecessary force

without significant physical injury." 12 The dissent interprets this

footnote as a statement of law whereas the majority actually was

making a factual observation. As a factual matter, it may well be

that a significant injury usually will be physical, as precedents

such as Hinojosa and Wisniewski v. Kennard 13 reflect. The case at

bar, how ever, is exceptional; the evidence of record was

sufficient for the jury to find s ignificant injury in Dunn's

emotional trauma. 14

The dissent also suggests that Dunn did not satisfy Johnson 's

causation requirement—that the injury "resulted directly and only

from the use of force that was clearly excessive to the15 876 F.2d at 480.

16 Id.; see also Hay v. City of Irving, Texas, 893 F.2d 796

(5th Cir.1990); Huguet v. Barnett, 900 F.2d 838 (5th Cir.1990).

17 Pieczynski v. Duffy, 875 F.2d 1331 (7th Cir.1989).

18 Unlike the dissent, the majority reads Wells as holding

that the exacerbation of the plaintiff's pre-existing shoulder

injury was not significant. The dissent's interpretation is

foreclosed by circuit precedent.

19 Denk also asserts that Hudson requires proof that the

defendant acted "maliciously and sadistically to cause harm."

503 U.S. at 6, 112 S.Ct. at 999. Hudson was an eighth amendment

case. Dunn's fourth amendment claim is governed by Graham, which

adopts an objective reasonableness test.

6 need" 15 —because her trauma in part stemmed from her emotional

vulnerability at the time of her arrest. The dissent misconstrues

the Joh nson causation requirement. The "directly and only"

language was intended to distinguish between injuri es resulting

from excessive force and those resulting from the justified use of

force. 16 It was not intended to displace the venerable rule that

a tortfeasor takes his victim as he finds him 17 or to immunize the

exacerbation of a pre-existing condition, leaving the weakest and

most vulnerable members of society with the least protection from

police misconduct. 18 The evidence supports a finding that the

emotional trauma which Denk inflicted on Dunn was a significant

injury distinct from the depression for which she was hospitalized,

resulting "directly and only" from the use of excessive force. 19

2. Juror misconduct.

Denk contends that juror Chester Cox dissembled during voir

dire by not admitting to a prior arrest. Cox, by affidavit,

insists that he raised his h and but was overlooked. The record20 Garcia v. Murphy Pacific Marine Salvaging Co., 476 F.2d

303 (5th Cir.1973).

21 Cf. Bolton v. Tesoro Petroleum Corp., 871 F.2d 1266 (5th

Cir.) (brief mention of extraneous information, corrected by jury

foreman, does not create a reasonable possibility of prejudice),

cert. denied, 493 U.S. 823, 110 S.Ct. 83, 107 L.Ed.2d 49 (1989).

7 does not establish misconduct. Further, Denk's attorney knew of

the prior arrest early in the trial but chose to re main silent

until the return of an adverse verdict. The delay waives the

objection. 20

Denk also complains that a previous reprimand in his

personnel file was mentioned during jury deliberations, even though

the personnel f ile was excluded from evidence. Two jurors

apparently learned of the rebuke from a newspaper article which the

district court directed the jury to disregard. The bare mention of

a prior reprimand does not raise a reasonable possibility of

prejudice, particularly in light of the court's admonishment. 21 The

district court did not ab use its discretion in denying Denk's

motion for a new trial.

3. Damages.

After finding excessive fo rce, the jury awarded $10,000 in

punitive damages but no compensatory damages. We agree with the

parties that the denial of compensatory damages was incon sistent

with the finding of liability, which presupposed sign ificant

injury. We are not persuaded that the inconsistency demonstrates

impermissible compromise. The jury obviously struggled mightily to

reach a verdict; it succeeded in doing so. Its confusion over the

appropriate allocation of damages does not undermine our confidence22 To impeach the verdict, Denk submits the affidavit of a

juror who subsequently recanted her vote. It is well established

that a juror may not testify to the course of deliberations or to

the jury's mental processes. Fed.R.Evid. 606(b); United States

v. Straach, 987 F.2d 232 (5th Cir.1993).

23 Denk contests the district court's entry of a judgment for

$1 in nominal damages and argues that punitive damages may not be

assessed without the award of compensatory damages.

24 Defendant's motion for summary judgment on the grounds of

qualified immunity was denied. We affirmed, 954 F.2d 722 (5th

Cir.1992) (memo).

25 Cf. TK's Video, Inc. v. Denton County, Tex., 24 F.3d 705

(5th Cir.1994).

8 that in reaching its verdict it found the use of excessive force. 22

We accordingly affirm the finding of liability and remand for a new

trial limited to the issue of damages, both compensat ory and

punitive.

Denk further challenges the award of punitive d amages. We

find ample suppor t in the record for such an award. We do not

reach the procedural and legal objections 23 because of our decision

to order a partial new trial.

4. Attorney's fees.

The district court awarded Dunn $17,500 in attorney's fees of

the $65,500 requested. Nonetheless Denk claims the award was

excessive, noting that Dunn obtained only $10,000 in damages

compar ed to the $200,000 sought. 2 4 This method of weighing the

value of legal services fails to take cognizance of the degree of

success obtained. 25 The award was not an abuse of discretion. On

cross appeal, Dunn maintains that she is entitled to a dditional

attorney's fees if she wins higher damages on retrial. We do not9

reach that argument; it is premature.

AFFIRMED as to liability, VACATED and REMANDED for further

proceedings as to damages consistent herewith.

RHESA HAWKINS BARKSDALE, Circuit Judge, dissenting:

"Delays have dangerous ends." H enry VI, Part 1 (1592) act 3,

sc. 2, 1.33. This is especially true for law enforcement officers

making an arrest. It is no less true for the arrest made by

Officer Denk. For this Fourth Amendment excessive force claim that

arose in 1990, the majority has incorrectly applied the applicable

qualified immunity standard of Johnson v. Morel, 876 F.2d 477 (5th

Cir.1989) (en banc). I respectfully dissent.

I.

As the majority notes, we must view the evidence in the light

most favorable to the jury's verdict. But, even in that light,

certain critical parts of the puzzle a re missing from the

majority's summary; they need to be included in order to better

appreciate the misunderstanding, and regrettable incident, that

took place when Dunn was arrested.

Dunn testified that, because she was ha ving problems with

depression, was crying all the time, and needed help, she was

hospitalized. While on a weekend pass, and riding as a passenger

in a vehicle driven by her boyfriend, the veh icle was stopped by

Officer Denk. (His right to stop the vehicle, as well as to later

arrest Dunn, are not in issue.)

The vehicle pulled over to the side of the road on a grassy

shoulder. From the side of the road to the ditch was approximately1 Perhaps in order to set the tone, the majority states also

that, after Officer Denk transported Dunn to jail, "he called her

a "bitch' ". I fail to see how this comment has any bearing on

whether excessive force had been used earlier. (Officer Denk

testified that, upon reaching the jail, he advised the jailer

that he "better watch her, she's acting like a bitch".)

10 seven feet; the ditch was dry and covered with tall grass. And,

obviously, because the car was beside the road, from the passenger

d oor to the ditch was no more than a step or two. (Officer Denk

testified that when you stepped from the passenger side of the

vehicle, you were almost in the ditch.)

Dunn is approximately 5 N 7 O tall, and, at the time of the

incident, weighed approximately 160 pounds; Officer Denk was

approximately the same size. After Dunn exited the vehicle, and

Officer Denk announced that she was under arrest, she sat back down

in the vehicle; and when she would not exit, Officer Denk

forcefully pulled her out. They both ended up in the grassy ditch.

(His version is they both lost their balance.)

There were four witnesses to th e incident: Dunn, her

boyfriend, Officer Denk, and a bystander. It is disputed when the

boyfriend advised Officer Denk that Dunn had been in the hospital.

The bystander heard the comment when Officer Denk was pulling Dunn

from the vehicle, and this is in line with the boyfriend's

testimony; in short, the comment was made while the incident was

in progress. 1

The jury was instructed properly for a constitutional

excessive force claim that arose in 1990. For example, using

language from Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct.2 See Harper v. Harris County, Tex., 21 F.3d 597, 600 (5th

Cir.1994) (recognizing that Johnson 's significant injury prong

was overruled by Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995,

117 L.Ed.2d 156 (1992)). But, as the majority states, and under

the well-established law at the time of the incident at issue

here, Johnson is the applicable standard. Harper, 21 F.3d at

601.

11 1865, 1871-72, 104 L.Ed.2d 443 (1989), quoted in Johnson, 876 F.2d

at 479, discussed infra, the charge cautioned the jury that, for

Fourth Amendment purposes, in judging the "reasonableness" of the

force used, "[t]he nature of reasonableness must embody allowance

for the fact that police officers are often forced to make

split-second judgments—in circumstances that are tense, uncertain,

and rapidly evolving—about the amount of force that is necessary in

a particular situation." The charge on qualified immunity is not

at issue; we must determine only whether, as a matter of law, the

jury could reasonably find as it did.

II.

It goes without saying that, to avoid a qualified i mmunity

defense, a plaintiff must claim a constitutional violation that was

clearly estab lished at the time of the alleged wrongful conduct.

E.g., Walton v. Alexander, 44 F.3d 1297, 1301 (5th Cir.1995). And,

it is undisputed that the clearly established law for this case is

stated in Johnson. 876 F.2d at 479-80. 2 It provides:

A plaintiff c an thus prevail on a Constitutional excessive

force claim only by proving each of these three elements:

(1) a significant injury, which

(2) resulted directly and only from the use of force that

was clearly excessive to the need; and the excessiveness

of which was3 The majority cites two pre- Johnson cases, both of which

involved sufficient physical injury to support excessive force

claims. See Hinshaw v. Doffer, 785 F.2d 1260 (5th Cir.1986)

(various physical injuries requiring two-day hospitalization);

Keyes v. Lauga, 635 F.2d 330 (5th Cir.1981) (concussion). In

both cases, the plaintiff was allowed to recover damages for

nonphysical injury, but neither case holds that nonphysical

injury, standing alone, can support an excessive force claim.

12 (3) objectively unreasonable.

If any one of these elements fails, so too does the

plain tiff's claims. We overrule all previous decisions of

this circuit to the contrary. Id. at 480 (internal footnote

omitted). As discussed below, this case fails the first two

prongs of the Johnson test.

A.

The majority recognizes that Dunn's extremely minor physical

injuries ( e.g., bruises to her arm and hip) failed to establish

significant injury. S ee Wise v. Carlson, 902 F.2d 417 (5th

Cir.1990) (finding bruises to chest and forearm, as well as

hematoma on upper eyelid insufficient as a matter of law).

Therefore, the question is framed squarely: Can nonphysical injury

qualify as significant injury under Johnson? And, if so, was the

right to be free from nonphysical injury clearly established in

1990—when the incident occurred?

1.

In concluding most summarily that, as a matter of law, the

evidence was legally sufficient for the nonphysical injur y to be

"significant", the majority begins by s tating, "It was clearly

established before January 1990

... that both physical and

psychological injuries were compensable in civil rights actions". 3

But, this is not the issue. I do not question that, once a4 The majority also cites Coon v. Ledbetter, 780 F.2d 1158

(5th Cir.1986) (yet again, pre- Johnson ). Although one of the

plaintiffs in Coon appeared to have suffered only "sleeplessness

and nightmares", the sufficiency of the injury was not at issue.

Our circuit has held squarely that this type of injury is

insufficient under the Johnson test. Wisniewski v. Kennard, 901

F.2d 1276, 1277 (5th Cir.), cert. denied, 498 U.S. 926, 111 S.Ct.

309, 112 L.Ed.2d 262 (1990).

13 plaintiff has satisfied the Johnson test, she may be comp ensated

for nonphysical injury. The issue is whether a nonphysical injury,

standing alone, will pass the Johnson test. For that question, the

majority relies primarily on one case (again, pre- Johnson ), Lynch

v. Cannatella, 810 F.2d 1363 (5th Cir.1987), which does not support

its conclusion.

The majority notes that Lynch speaks of a "change in

personality" allegation. But, this allegedly resulted from being

"beaten and drugged", id. at 1376; and only allegations were in

issue, the case being on interlocutory appeal. Among other

distinguishing features from Dunn's nonphysical injury, our court

noted in Lynch that the plaintiff alleged physical and nonphysical

injury, and Lynch was only in the initial stages of litigation.

Here, Dunn's action having been tried, it is beyond dispute that

there is no actio nable physical injury. In sum, I cannot agree

with the majority's suggestion that L ynch stands for the

p roposition that our court held before 1990 that psychological

injury, without more, can support a constitutional excessive force

claim. 4 Indeed, a case cited by the majority, H inojosa v. City of

Terrell, 834 F.2d 1223, 1230 (5th Cir.1988), cert. denied, 493 U.S.

822, 110 S.Ct. 80, 107 L.Ed.2d 46 (1989), decided after Lynch (but,5 As described in note 2, supra, it is now established that

Johnson is applicable to constitutional excessive force claims

arising only during the relatively brief period between Johnson

14 once again, before Johnson ), suggests that the issue was undecided

in our circuit: "This Court does not here determine whether or not

some type of physical injury will in every instance be necessary

for [an excessive force claim]." (Emphasis in original.)

Moreover, the precedential value, if any, of L ynch is

otherwise most questionable, because, as noted, it pre-dates our en

banc decision in Johnson. As quoted earlier, after establishing

the excessive force/qualified i mmunity test, the J ohnson court

stated that it "overrule[d] all previous decisions of this circuit

to the contrary". 876 F.2d at 480. In addition, in a footnote to

the term "sig nificant injury", J ohnson stated: "We think it

unlikely that such a si gnificant injury will be caused by

unnecessary force without significant physical injury." I d. at 480

n. 1 (emphasis in original). Although this language was d icta, it

nonetheless casts into serious doubt any prior decisions of our

court which might suggest that no nphysical injury is J ohnson

"significant injury".

Therefore, prior to today's decision, whether nonphysical

injury can be "significant injury" was an open question. S ee

Wisniewski v. Kennard, 901 F.2d 1276, 1277 (5th Cir.) (refusing to

reach "difficult" issue of whether significant injury exists absent

physical injury), cert. denied, 498 U.S. 926, 111 S.Ct. 309, 112

L.Ed.2d 262 (1990). It is necessary, therefore, to examine more

closely today's swift, bold step. 5and Hudson —July 5, 1989 to February 25, 1992, approximately 32

months. In light of the considerable passage of time since then,

statutes of limitation, etc., we have no way of knowing how many

Johnson claims are still percolating in our circuit.

15 The starting point, of course, is Johnson, which was guided by

Graham v. Connor, 490 U.S. 386, 109 S.Ct . 1865, 104 L.Ed.2d 443

(1989), handed down just two months earlier. As dictated by

Graham, Johnson recognized that the s tandard is Fourth Amendment

"reasonableness", and that

[t]he calculus of reasonableness must embody allowance for the

fact that police officers are oft en forced to make

split-second judgments—in circumstances that are tense,

uncertain, and rapidly evolving—about the amount of force that

is necessary in a particular situation.

876 F.2d at 479 (quoting Graham, 490 U.S. at 396-97, 109 S.Ct. at

1871-72). Accordingly, in a passage that demonstrates compellingly

why Officer Denk is sheltered by qualified immunity for the

incident in issue, Johnson counseled that

[i]njuries which r esult from, for example, an officer's

justified use of force to overcome resistance to arrest do not

implicate constitutionally protected interests. An arrest is

inevitably an unpleasant experience. An officer's use of

excessive force does no t give constitutional import to

injuries that would have occurred absent the excessiveness of

the force, or to minor harms. Nor can transient distress

constitute a significant injury.

Id. at 480.

As qu oted, J ohnson observed that mere "transient distress"

would not suffice, and fou nd it "unlikely" that a ny nonphysical

inj ury could be sufficient. I d. at 480 & n. 1. Our en banc

court's inclination in Johns on to reject nonphysical injury

creates, at least for me, a reluctance to adopt the majority's

position. Within the excessive force framework of Johnson, the6 Evidence in the record points up this possibility. For

instance, it appears that a large part of Dunn's anguish resulted

merely from the humiliation of being arrested, and her fear that

Officer Denk might shoot her companion if he attempted to

intervene in her arrest (there is no evidence that her companion

made any significant attempt to intervene, or that Officer Denk

tried to shoot him).

16 allowance of nonphysical injury gives rise necessarily to most

difficult cau sation questions. For example, and viewing the

circumstances in Dunn's favor, Dunn was thrown into a dry ditch

covered with tall grass and handcuffed; as a result, she suffered

"post traumatic stress syndrome.... which will leave her prone to

anxiety and panic

... for an undetermined period of time". Compare

this with Wisniewski v. Kennard, where a deputy sheriff hit a

prisoner in the stomach twice, put the barrel of a gun in the

prisoner's mouth, and "threatened to blow his head off". 901 F.2d

at 1277. Under what were clearly stronger circumstances than those

presented in today's case, the prisoner in Kennard alleged that he

was frightened and had bad dreams. Id. Our court upheld summary

judgment for the deputy sheriff, fi nding no significant injury

under Johnson. Id.

What can be made of these two very different results—results

from decidedly different circumstances? Was the prisoner's mental

health extraordinarily stable, or is Dunn's particularly fragile?

An d if hers is particularly fragile, would her mental condition

have arisen simply from her arrest, absent the use of any force? 6

Regardless of the answers to these questions, the point is only

that, in the context of Johnson excessive force, the subjectivity

of nonphysical injury cr eates enormous difficulty vis-a-vis the17

lee way that must be granted law enforcement officers working in

tense, unpredictable, fast mo ving, and dangerous situations. As

Johnson stated, "[a]n arrest is inevitably an unp leasant

experience." 876 F.2d at 480. The entire thrust of J ohnson is to

secure working room for law enforcement officers, so that they can

perform their work (sadly, needed now, more than ever, in this

Nation) without fear of civil liabil ity at every turn. And, as

discussed below, this is why law enforcement officers are entitled

to guida nce on whether their conduct will result in civil

liability. In short, Johnson 's implied rejection of nonphysical

injury was correct.

2.

In the alternative, it is well to remember that the qualified

immunity analysis does not necessarily determ ine whether an

official's conduct was proper, only whether it can be the basis for

civil liability. Therefore, even assuming a rguendo that

nonphysical injury can be "significant" under Johnson, the question

remains whether this rule was "clearly established" at the time of

the incident in issue, so as to place Officer Denk outside the

protection of qualified immunity. If it was not, Officer Denk is

protected by that immunity. Anderson v. Creighton, 483 U.S. 635,

639-40, 107 S.Ct. 3034, 3038-39, 97 L.Ed.2d 523 (1987); D oe v.

State of Louisiana, 2 F.3d 1412, 1416 (5th Cir.1993), cert. denied,

--- U.S. ----, 114 S.Ct. 1189, 127 L.Ed.2d 539 (1994).

It was "clearly established" in 1990 that Dunn was entitled to

be free from significant injury resulting from unreasonable force.7 No doubt, and as it should have, Johnson afforded broad

working room for police officers. In any event, the correctness

of that decision is not in issue; we apply the law as it existed

in 1990.

8 In addition, it seems clear that Officer Denk was not aware

of Dunn's mental condition. Dunn's boyfriend testified that he

told Officer Denk that Dunn had just been released from the

"hospital"; but, as noted, this was not until Dunn was being

removed from the vehicle. Moreover, the companion made no

reference to a "mental hospital", and gave no other indication

that Dunn was emotionally unstable. In fact, Dunn's doctor

admitted that Officer Denk "had no way of knowing that [Dunn] was

a patient in a psychiatric hospital". (The reference to the

hospital may well have put Officer Denk on notice that he was

18 Johnson, 876 F.2d at 480. The question, however, is whether

Officer Denk should be held liable for causing an injury, the

significance of which was not clearly established, and instead, as

per Johnson, was clearly doubted. Guiding my concern is the

Supreme Court's pronounce ment that "[t]he contours of the right

must be sufficiently clear [so] that a reason able official would

understand that what he is doing violates that right." Anderson,

483 U.S. at 640, 107 S.Ct. at 3039. As the Court has explained,

the very purpose of the "clearly established right" requirement is

so that officials may "reasonably

... anticipate when their conduct

m ay give rise to liability for damages". D avis v. Scherer

, 468

U.S. 183, 195, 104 S.Ct. 3012, 3019, 82 L.Ed.2d 139 (1984).

We assume that officials know the law on excessive force.

Accordingly, in 1990, a reasonable officer could conclude correctly

that he must only make certain his use of force, no matter how

unreasonable, did not cause "significant injury". 7 Furthermore, in

light of Johnson, an officer could conclude reason ably that

"significant injury" did not include no nphysical injury. 8 Butdealing with a physically weak individual; but, again, Dunn's

physical injuries are not in issue.)

19 sur ely, at the very least, the "contours of the right" were not

sufficiently clear. Rather than providing a basis for an officer

to "rea sonably anticipate" liability, J ohnson has been made

misleading, considering the majority's holding today, because

Johnson clearly suggests, even if it does not hold, that

nonphysical injury will be insufficient.

Therefore, regardless of whether an excessive force plaintiff

has the right, under Johnson, to constitutional protection against

nonphysical injury, that right was not clearly established in 1990.

Accordingly, Officer Denk was entitled to qualified immunity.

B.

In addition to significant injury, Johnson requires

, inter

alia, that the injury result " d irectly and only from the use of

force that was clearly excessive to the need". 876 F.2d at 480

(emphasis added). On this point, our court's very recent precedent

requires a result contrary to the majority's.

In Wells v. Bonner, 45 F.3d 90, 92 (5th Cir.1995), Wells

brought, among other things, a claim for the excessive force used

against him during his arrest, alleging injury to his shoulder.

Our court reversed the denial of qualified immunity, holding:

Wells's claim fails to satisfy the second element of the

excessive force test beca use his injury did not result

" directly and only from" the officers' use of force . It is

true that the record reflects that his shoulder was injured by

the officers during the arrest. Wells admits, however, and

other portions of the record also reflect, that the injury was

an exacerbation of an old shoulder injury for which Wells

previo usly had undergone surgery. Thus, Wells's injury did9 The majority reads Wells as holding only that the

plaintiff's exacerbation of his pre-existing injury was not a

significant injury. However, the clear and specific holding of

Wells rests on the causation prong of the Johnson test, not the

significant injury prong. The majority also states that my

reading of Wells is contrary to circuit precedent, but cites no

authority for this observation.

20 not result "directly and only from" the officers' use of

force. Id. at 96. 9

The case at hand is virtually indistinguishable from W ells.

Dunn's original complaint admitted that her nonphysical injury

consisted only of a "relapse of her mental condition", and that, at

the time of the incident, she was depressed and vulnerable. The

record contains substantial evidence of Dunn's past mental

difficulties. Eleven days before her encounter with Officer Denk,

she was hospitalized, in a state of "severe depre ssion and

agitation". And, only about four hours before the incident, she

was released from the hospital on a "therapeutic pass", in order

"to see if she could cope outside the hospital setting".

Dunn's doctor testified that Dunn "wasn't prepared for [the

incident]" and that the inc ident "was a shock, and it—of all the

issues that we were working wi th in terms of her recovery, this

threw everything off track". Describing her own condition, Dunn

stated that her "depression was biological, and it seemed like

every little issue just compounded what was going on".

In view of the evidence of Dunn's prior mental condition, it

is clear that, as in Wells

, Dunn's mental injury did not result

"directly and only from" Officer Denk's u se of force. As with

Wells' shoulder injury, Dunn's alleged mental injury as a result of10 The jury's response to the actual damages special

interrogatory was as follows:

What sum of money, if any, would fairly and

reasonably compensate Plaintiff Mary Elizabeth Dunn for

each of the following damages proximately caused by the

use of excessive force for which you have found that

Defendant Mike Denk is liable?

Answer in dollars and cents or "None".

a. Past mental anguish, emotional distress, and

mental pain and suffering:

ANSWER: $ NONE

b. Future mental anguish, emotional distress, and

mental pain and suffering:

ANSWER: $ NONE

c. Lost income:

ANSWER: $ NONE

d. Medical bills:

ANSWER: $ NONE

21 Officer Denk's actions was, at worst, an exacerbation of a

pre-existing condition. As such, her claim fails the causation

element of Johnson.

Final ly, along this line, it bears repeating that the jury

found that Officer Denk's actions did not injure Dunn in any shape,

form, or fashion. It awarded only punitive damages, refusing to

award damages to "compensate ... Dunn for ... damages proximately

caused by the use of [Officer Den k's] excessive force...." 1 0 Howe. Past physical impairment:

ANSWER: $ NONE

f. Past physical pain and suffering:

ANSWER: $ NONE

11 The majority attempts to find causation by stating that

the Johnson

"directly and only" language was intended to

distinguish between injuries resulting from

excessive force and those resulting from the

justified use of force. It was not intended to

displace the venerable rule that a tortfeasor

takes his victim as he finds him or to immunize

the exacerbation of a pre-existing condition,

leaving the weakest and most vulnerable members of

society with the least protection from police

misconduct.

(Emphasis by majority; footnotes omitted.) Because I

believe the causation element is flatly precluded by Johnson

and Wells, I need respond only briefly.

The "tortfeasor takes his victim as he finds

him/weakest and most vulnerable" argument would truly open

the floodgates for excessive force claims for nonphysical

injury. Doubtless, this is why Johnson struck the necessary

balance that it did. In short, the majority is doing

nothing but attempting to rewrite Johnson. This it cannot

do.

22 can we hold that Dunn's alleged injuries were "directly and only

from" Officer Denk's actions, when the jury found n one? In my

opinion there is but one answer: we cannot. 11

III.

This case is a classic example of the upset and

misunderstanding that can result from an arrest. Surely, pursuant23

to the requisite objective reasonableness standard, Officer Denk,

under the circumstances, was justified in removing Dunn from the

vehicle. When he told her she was under arrest, she sat back down

in the car. What was a reasonable officer to do—tell her he was

going to count to three? Objectively, Dunn's reaction to the

arrest announcement was passive resistance, indicating she was not

going to comply w ith Officer Denk's instructions. He acted as a

reasonable officer would, should, and, indeed, must. For the

reasons stated, I would reverse the judgment on qualified immunity,

and, therefore, must respectfully dissent.

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