1 District Judge of the Western District of Louisiana, sitting by

designation.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________________

No. 91-7225

________________________

AARON SPANN,

Plaintiff-Appellant,

VERSUS

POLICE OFFICER A. G. RAINEY, ET AL., 

Defendants-Appellees.

__________________________

No. 92-7290 

__________________________

AARON SPANN,

Plaintiff-Appellee,

VERSUS

 A. G. RAINEY, Police Officer, ET AL.,

Defendants,

A. G. RAINEY, Police Officer, 

 Defendant-Appellant.

______________________________________________________

Appeals from the United States District Court

for the Southern District of Mississippi

(CA-J88-0616-B)

______________________________________________________

Before DUHÉ and BARKSDALE, Circuit Judges, and TRIMBLE,1 District

Judge.

BARKSDALE, Circuit Judge: 
2 Spann testified at trial that he had an appointment; Campbell,

that he didn't.

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Primarily at issue is an interlocutory appeal from the denial

of qualified immunity, the appeal being from a ruling on a summary

judgment motion filed after a new trial was granted; one issue

being whether the appeal can even be taken. These consolidated

appeals concern Aaron Spann's excessive force and other claims

against the City of Jackson, Mississippi, its police department,

and three police officers. We DISMISS Spann's appeal, No. 91-7225,

and cross-appeal in No. 92-7290, because there was no timely notice

of appeal from a final judgment. Because he is appealing from an

order denying qualified immunity, we have jurisdiction in Officer

A. G. Rainey's interlocutory appeal, No. 92-7290, but AFFIRM the

denial of summary judgment. 

I.

For several years prior to November 1987, Dr. Campbell had

treated Spann for a diabetic condition. On November 19, after

having missed a scheduled appointment that October, he arrived at

Dr. Campbell's office.2 Dr. Campbell testified that she

encountered Spann in the office, that he was angry, that she asked

him to wait in the reception area, and that she then told the

receptionist to call the police. A "disturbance call" was placed

to the police; and when Officers Kendrick and Rainey arrived, they

were directed to Spann, whom they approached and asked for

identification. When he did not respond, Rainey grabbed Spann's

arm; and Spann lunged forward, grabbing Officer Kendrick in the
3 In his statement of uncontested facts filed with his summary

judgment motion pursuant to local rule, Rainey stated: "At the

time of his arrest the plaintiff, Aaron Spann who is diabetic, was

suffering from a low blood sugar level which caused him to act

incoherently." 

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neck/collarbone area. A "split second" later, Rainey hit Spann

over the head with his flashlight, knocking him down. When Spann

attempted to get up, Rainey knocked him down again with his

flashlight. A third officer, Williams, arrived as Rainey and

Kendrick were attempting to handcuff Spann. Williams testified

that Spann was then bleeding from his head. Spann testified that

he was kicked, stomped, beaten, handcuffed, and dragged down stairs

before he was placed in a police car and taken to the hospital. 

Medical examination revealed that Spann had been suffering

from hypoglycemia (low blood sugar) at the time he was first

approached by Rainey and Kendrick. It is apparently uncontested

that Spann was in a "diabetic coma" at that time, and that this

explains his erratic behavior.3 The only charge filed against him

was resisting arrest.

Spann filed a civil rights suit, 42 U.S.C. § 1983, against the

City of Jackson, the police department, and the three officers. In

their answers to the complaint, the officers, inter alia, asserted

qualified immunity; but, before trial in 1991, they never moved for

dismissal on that basis. 

In early October 1991 (1991 trial), at the close of Spann's

case in chief, the court dismissed all claims against the City and

the department. And, at the close of all the evidence, it directed

a verdict for Rainey on the wrongful arrest claim. An excessive
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force claim and two pendent state law claims (assault and battery)

went to the jury. (The first state claim was that Spann was hit in

the head with a flashlight; the second, that he was kicked and

beaten once handcuffed.) On October 3, the jury found against

Spann on all claims. 

Upon the jury being excused, Spann moved orally for judgment

notwithstanding the verdict or, in the alternative, a new trial.

By an immediate bench ruling, the motion was denied as to

defendants Kendrick and Williams, but granted in part as to Rainey.

As to him, the motion was denied on the second state claim; but,

for the excessive force and first state (flashlight) claims, the

court found the verdict "against the overwhelming weight of the

evidence". A new trial was granted on those claims, rather than a

JNOV, "for the simple fact that ... [t]he jury did not reach the

issue of damages" and "the Court would be substituting its

evaluation of damages for that of a jury".

The final judgment and the order granting a new trial, based

on the bench ruling, were entered on October 7. Spann moved for

reconsideration of his new trial motion as to the City and Police

Department. That motion was denied on October 11. On October 16,

he moved for reconsideration of his new trial motion on all issues

as to the individual defendants. And, on October 21, Rainey moved

for reconsideration of the order granting a new trial. On November

6, even though the court had not ruled on Spann's October 16

motion, Spann filed a notice of appeal. Two days later, on

November 8, the district court denied Spann's October 16 motion.
4 Because the district court apparently considered "matters

outside the pleading", its ruling is treated as a denial of summary

judgment. Fed. R. Civ. P. 12(b).

5 In the statement of jurisdiction for his affirmative brief, in

language similar to that in his notice of cross-appeal, Spann

stated that he "took these appeals out of an abundance of caution,

and believes that the Court has no jurisdiction as of yet as there

has been no final judgment...." In fact, jurisdiction is lacking

for either of two reasons. 

First, our jurisdiction extends only to "final decisions" of

the district courts. 28 U.S.C. § 1291. The district court has

granted a new trial against Rainey. Accordingly, as Spann

concedes, the judgment is not final, and, therefore, not

appealable.

Second, even if he were appealing from a final judgment,

neither of Spann's notices of appeal would be timely. His November

6 notice was filed two days before a ruling on his last post-trial

motion. Therefore, the notice had "no effect". Fed. R. App. P.

4(a)(4). (In addition, the notice of appeal was filed approximately a month before Rainey's motion was decided. But, because

Rainey's motion was filed more than ten days after entry of the

judgment, it is considered a Fed. R. Civ. P. 60 motion, United

States v. Reyes, 945 F.2d 862, 864 (5th Cir. 1991) (citing Harcon

Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665 (5th Cir. 1986)

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Spann did not file a new notice of appeal. And, on December 5,

Rainey's October 21 motion was denied.

In February 1992, Rainey moved for dismissal or summary

judgment on the basis of qualified immunity. That April, the court

denied the motion without an opinion, stating in the order only

that the motion was "not well taken".4 Rainey appealed, and Spann

filed a cross-appeal ("out of an abundance of caution"), but only

as to the fall of 1991 post-trial orders. 

II.

As Spann conceded in his affirmative brief and at oral

argument, we lack jurisdiction over his appeal and cross-appeal.

They are dismissed.5 As hereinafter discussed, although we have
(en banc)), and does not come into play for Fed. R. App. P. 4(a)(4)

purposes.) Spann's cross-appeal in 1992 as to the rulings in the

fall of 1991 (filed "out of an abundance of caution") was far

outside the requisite 30 day filing period. Fed. R. App. P.

4(a)(1).

6 Spann also asserts that Rainey's right to this appeal was

waived by his failure to list the defense in the pretrial order for

the 1991 trial. We do not reach whether the defense is waived if

not asserted at a first trial, when a new trial is granted, because

the defense was presented, at least in part, at trial. In the

pretrial order, Rainey (and the other defendants) incorporated all

of the defenses asserted in their answers to the complaint (as

noted, qualified immunity was one), but without specifying them.

Even though the district court ruled that this procedure waived the

immunity defense, its jury instructions, at least in some respects,

included some of the elements for immunity, including some aspects

of objective reasonableness, and that element, at least in part,

was argued by the individual defendants in their motions to dismiss

at the close of Spann's case in chief and of the evidence. 

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jurisdiction over Rainey's appeal, we hold, based on our required

de novo review of the summary judgment ruling, that the motion was

properly denied. 

A.

Rainey invokes our jurisdiction under Mitchell v. Forsyth, 472

U.S. 511 (1985), because his appeal is from an order denying

qualified immunity. Spann counters that the interests fostering

such an appeal are not applicable, in part because of Rainey's

failure to assert the qualified immunity defense by motion before

the 1991 trial.6 To the contrary, and for the following reasons,

we find that those interests are still served at this late date,

and that we, therefore, have jurisdiction. 

Qualified immunity protects against being subjected to

litigation and against liability. "[Q]ualified immunity is in part

an entitlement not to be forced to litigate the consequences of
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official conduct". Id. at 527. To the extent that the defense is

concerned with "the general costs of subjecting officials to the

risks of trial -- distraction of officials from their governmental

duties, inhibition of discretionary action, and deterrence of able

people from public service", Harlow v. Fitzgerald, 457 U.S. 800,

816 (1982), those interests are partially lost at this stage in the

game. Indeed, it is well established (and makes perfect sense)

that the interests at the heart of qualified immunity are best

served when, unlike here, the defense is asserted at the earliest

possible stage, Anderson v. Creighton, 483 U.S. 635, 646 n.6

(1987). Attention to those interests is the very purpose for

allowing interlocutory appeals from the denial of qualified

immunity. 

Those interests are still served, however, even if in a more

limited fashion, by assertion of the defense at some later stage.

It is true that Rainey was pulled away from his official duties for

the 1991 trial. And, it may even be true that having been

subjected to that trial will inhibit his future exercise of

judgment or deter others from public service. But, as noted, it is

also true that qualified immunity is both an immunity from suit and

a defense to liability. We have previously held that a public

official does not waive this defense when he fails to take an

interlocutory appeal and, instead, subjects himself to the burdens

of discovery and trial. See Matherne v. Wilson, 851 F.2d 752 (5th

Cir. 1988). Likewise, we do not consider the defense -- or the

concomitant right to an interlocutory appeal from its denial --
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waived by Rainey's failure to seek dismissal based on it prior to

the 1991 trial. His interests in the avoidance of a second trial

and, ultimately, in avoiding liability, would still be served by a

successful assertion of the defense at this stage.

B.

As a police officer, Rainey is immune from both suit and

liability unless it is shown that, at the time of the incident, he

violated a clearly established constitutional right. Salas v.

Carpenter, 980 F.2d 299, 305 (5th Cir. 1992). The Supreme Court

recently "clarif[ied] the analytical structure under which a claim

of qualified immunity should be addressed", Siegert v. Gilley, ___

U.S. ___, 111 S.Ct. 1789, 1793 (1991). We must first determine

whether the plaintiff has "allege[d] the violation of a clearly

established constitutional right." Id. If he has, we then decide

whether the defendant's conduct was objectively reasonable, Salas,

980 F.2d 305-06, because "[e]ven if an official's conduct violates

a constitutional right, he is entitled to qualified immunity if the

conduct was objectively reasonable". 

For this second step, the "reasonableness ... is assessed in

light of the legal rules clearly established at the time" of the

incident in issue. Id. at 310. The contours, or standard, for a

constitutional right may expand after the time of the alleged

violation, and be the benchmark for proof at trial of that right

and its claimed violation; but, as stated, the benchmark for

objective reasonableness is that which existed at the time of the

alleged violation -- we look to clearly established law at that
7 Our standard for establishing an excessive force claim under

the Fourth Amendment also requires showing the injury to be

"significant". Johnson v. Morel, 876 F.2d 477, 479-80 (5th Cir.

1989) (en banc). The Supreme Court, however, has overruled our use

of this requirement for excessive force claims under the Eighth

Amendment. Hudson v. McMillan, 503 U.S. __, 112 S.Ct. 995 (1992).

Hudson's implications for Fourth Amendment excessive force claims

are not entirely clear, but we need not decide that question.

Certainly some injury is still required, Hudson, 112 S.Ct. at 1000;

and Spann's injury allegations would meet our standard of

"significant" injury.

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time. E.g., id. at 310; Mouille v. City of Live Oak, Tex., 977

F.2d 924, 927-28 (5th Cir. 1992); Duckett v. City of Cedar Park,

Tex., 950 F.2d 272, 279-80 (5th Cir. 1992).

We conclude that Spann has alleged violation of a

constitutional right which was clearly established as of the

incident in November 1987, and that we cannot find that Rainey's

actions were objectively reasonable. Accordingly, for the reasons

hereinafter stated, we concur in the denial of summary judgment. 

1.

The Fourth Amendment, with its standard of reasonableness,

governs claims of excessive force during arrest. Graham v. Connor,

490 U.S. 386, 394 (1989); King v. Chide, 974 F.2d 653, 656-57 (5th

Cir. 1992). In this circuit, in order to state a claim for

excessive force in violation of the constitution, a plaintiff must

allege "(1) a[n] ... injury,7 which (2) resulted directly and only

from the use of force that was clearly excessive to the need; and

the excessiveness of which was (3) objectively unreasonable."

Johnson v. Morel, 876 F.2d 477, 480 (5th Cir. 1989) (en banc).

Spann's complaint alleges that while he was in "diabetic

shock", Rainey and the other officers, without any cause or
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justification, and in an "unreasonable and excessive use of force",

"did assault and beat him with their hands and night sticks as well

as other instruments yet to be identified. Due to this beating,

Aaron Spann suffered severe injuries." He describes those injuries

as "severe and disabling injuries to his neck and back, severe cuts

to his head, contusions and concussions, ... great pain and mental

suffering". Spann also alleges that these injuries were the

"direct and proximate result of defendant's acts". Assessing these

allegations, as we must, in the light most favorable to Spann,

Salas, 980 F.2d at 304, it is clear that, under the controlling

Johnson v. Morel standard, he has stated a claim for violation of

a constitutional right.

2.

We next consider the objective reasonableness of Rainey's

actions in light of clearly established law at the time of the

incident. This standard "is not capable of precise definition or

mechanical application", Graham, 109 S.Ct. at 1872 (quoting Bell v.

Wolfish, 441 U.S. 520, 559 (1979)), and thus requires a close

examination of the facts and circumstances of each case. Of

course, in conducting that examination, our consideration is

limited to the record which was before the district court when it

considered Rainey's motion. That record included, among other

things, Rainey's motion for summary judgment, his deposition, and

the transcript from the 1991 trial.

In gauging the objective reasonableness of the force used by

Rainey, we must balance the amount of force used against the need
8 It is now clearly established that claims of excessive force

during arrest are governed by the Fourth Amendment. See Graham v.

Connor, 490 U.S. 386, 394 (1989).

9 Johnson, 876 F.2d 477, redefined this "severe injury" prong as

one of "significant" injury. Though even Johnson's "significant

injury" has now been called into question, see supra note 7, our

analysis is not affected, because we conduct this analysis with

reference to the law as it existed in November 1987.

10 This subjective component (malice) has since been expressly

held "incompatible" with the current Fourth Amendment analysis.

Graham, 109 S.Ct. at 1872. 

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for that force, and, as discussed, must do so in light of the

clearly established law as of the time of the incident. If we can

conclude that he used no more force than would have been thought

necessary by a reasonable police officer, Rainey is entitled to

immunity and need not stand trial again.

In November 1987, our standard for excessive force in the

course of arrest was governed by Schillingford v. Holmes, 634 F.2d

263, 265 (5th Cir Unit A Jan. 1981). Although this court then

labelled the analysis one under the Due Process Clause,8 we weighed

many of the same factors considered relevant today. A valid claim

for excessive force required showing (1) severe injuries9, which

were (2) "grossly disproportionate to the need for action under the

circumstances", id. at 265, and (3) inspired by malice.10 On this

record, considering the facts in the light most favorable to Spann,

we cannot conclude under the three-part Schillingford test that

Rainey's actions were objectively reasonable. 

First, if Spann is able to prove at trial the facts that he

now alleges, he will have established injuries which are

sufficiently severe. Second, we cannot conclude that a reasonable
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police officer would think the extent of force allegedly used was

necessary under the circumstances. It is uncontested that the only

charge ultimately filed against Spann was resisting arrest. He

contends that he was not being arrested for any underlying crime

and that no warrant for his arrest was outstanding. He further

contends that he "was not violating any laws, was not attempting to

interfere with any defendants' execution of duties, and was not

engaged in assaulting, threatening ... behavior toward the ...

officers ... or any other citizen." Furthermore, as noted, it is

apparently uncontested that he was in a "diabetic coma" at the time

of the alleged attack. It is also uncontested that Spann was

confronted by two police officers, with another arriving shortly

thereafter, and that Rainey struck Spann twice on the head with his

flashlight. And third, although it is less clear that the incident

reflects the requisite malice, we are unable to conclude that this

element is absent.

Of course, at trial, Spann will bear the burden of proving the

facts here considered in the light most favorable to him. And, of

course, our inability to now conclude that Rainey's actions were

objectively reasonable does not end the inquiry. In sum, in order

to establish Rainey's liability, and assuming that Rainey will

continue to assert qualified immunity, Spann must still prove the

elements for his excessive force claim, and that Rainey's actions

were not objectively reasonable in light of clearly established law

in 1987.

III.
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Accordingly, Spann's appeal in No. 91-7225 and cross-appeal in

No. 92-7290 are DISMISSED, and the denial of summary judgment in

Rainey's appeal, No. 92-7290, is AFFIRMED.