                      REVISED - JUNE 30, 1998

                   UNITED STATES COURT OF APPEALS
                        For the Fifth Circuit

                   _____________________________

                            No. 95-40157

                   _____________________________


  MELINDA PETTA, as Next Friend of Nikka Petta and Cavin Petta,
       Minors; NIKKI PETTA, a Minor; CAVIN PETTA, a Minor,

                                           Plaintiffs - Appellees,

                               VERSUS

ADRIAN RIVERA, Individually and in his official capacity as Texas
          Department of Public Safety Highway Patrolman,

                                            Defendant - Appellant,

                                and

                 TEXAS DEPARTMENT OF PUBLIC SAFETY,

                                                        Defendant.


         __________________________________________________

            Appeal from the United States District Court
                 for the Southern District of Texas
         __________________________________________________
                            June 9, 1998


Before DUHÉ and DENNIS, Circuit Judges, and DUVAL, District Judge1:

JOHN M. DUHÉ, JR., Circuit Judge:

     Officer Adrian Rivera (“Rivera”) appeals the district court’s

denial of his motion for summary judgment based on the defense of


     1
     District Judge of the Eastern District of Louisiana, sitting
by designation.
qualified immunity.      For the reasons that follow, we reverse and

render.

                           FACTUAL BACKGROUND

      Because the parties dispute certain facts, we summarize the

relevant incidents drawing inferences in the light most favorable

to the nonmovants.      See Pfannstiel v. City of Marion, 918 F.2d

1178, 1183 (5th Cir. 1990).

      On January 15, 1990, Rivera, a Texas Department of Public

Safety (“TDPS”) Patrol Officer, stopped Melinda Petta (“Petta”) for

speeding on Farm Road 70, southwest of Corpus Christi.            Inside the

car were Petta’s two children (“the Petta children”): a son, Cavin,

age 3, and a daughter, Nikki, age 7.         Following a brief argument

over the speed Petta had been driving, Petta alleges Rivera ordered

her out of the vehicle.     When Petta refused to exit and rolled up

her   window,   Petta   alleges   Rivera   “lost   his   temper,    becoming

agitated,   irrational,    threatening     and   verbally   and   physically

abusive.”   Rivera then threatened to have her car towed.               When

Petta still refused to exit her vehicle, she claims Rivera began

screaming and cursing her, tried to jerk her door open, and

attempted to smash her driver’s side window with his nightstick.

The alleged tirade culminated when Rivera menaced her with his .357

Magnum handgun.     Petta panicked and fled the scene.            She claims

that Rivera fired a shot at her car as she drove away.

      What followed was a high-speed pursuit, involving other TDPS



                                     2
officers as well as Rivera, that covered some 19 miles through the

crowded city streets of Corpus Christi.             Petta claims that during

the chase Rivera again shot at her vehicle, attempting to blow out

her tires.     The record shows that Rivera’s superiors ordered him

not to fire at the fleeing car and that Rivera disregarded those

orders.    The pursuit ended with Petta’s arrest by several officers

at her apartment.      Petta’s children were never taken into custody

nor were they touched by any officers.

                           PROCEDURAL HISTORY

     Petta, on behalf of her two minor children, sued the TDPS and

Rivera, in both his official and individual capacities, asserting

various state law claims and § 1983 claims for use of excessive

force in violation of the Fourth and Fourteenth Amendments.                   The

court dismissed all state and federal claims against the TDPS and

Rivera, in     his   official   capacity,      as   barred   by   the    Eleventh

Amendment.     As to Rivera in his individual capacity, the court

granted his motion for summary judgment on plaintiffs’ § 1983 claim

based on the Fourth Amendment.         The court, citing Brower v. Inyo

County, 489 U.S. 593, 596-97 (1989), and California v. Hodari D.,

499 U.S. 621, 624-26 (1991), found that no “seizure” of the

children     had   occurred2    that   would    trigger      Fourth     Amendment



     2
     Plaintiffs did not appeal the district court’s dismissal of
their Fourth Amendment claims.      Whether the district court
correctly found no “seizure” of the children under these facts is
therefore not before us.

                                       3
protections.

     Finding that Rivera had not moved for dismissal or summary

judgment with regard to the Fourteenth Amendment claims, the court

allowed Rivera an additional ten days to file an appropriate

motion. Rivera accordingly filed a supplemental motion for summary

judgment based on qualified immunity as to the Fourteenth Amendment

claims.      The    court,   however,    denied     Rivera’s    motion   without

explanation and set for jury trial plaintiffs’ Fourteenth Amendment

claims and supplemental state law claims of assault and battery and

negligence against Rivera, in his individual capacity.                The court

later     granted    Rivera’s   motion       to   stay   trial    pending    his

interlocutory appeal.

                                 DISCUSSION

                                        I.

     Generally, appellate courts have jurisdiction to hear appeals

only from “final decisions” of district courts.                 See 28 U.S.C. §

1291 (West 1993).      Certain collateral orders have been recognized

as “final decisions” within the meaning of § 1291, i.e., those

which   “[1]   conclusively     determine     the    disputed    question,   [2]

resolve an important issue completely separate form the merits of

the action, and [3] [are] effectively unreviewable on appeal from

a final judgment.”       Puerto Rico Aqueduct and Sewer Authority v.

Metcalf & Eddy, Inc., 506 U.S. 139, 142-43 (1993);                 see Cohen v.

Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949).                    A



                                        4
district court’s order denying a defendant’s motion for summary

judgment    based       on    the     defense      of    qualified    immunity    is   an

immediately appealable “final decision” under the collateral order

doctrine where the order denies qualified immunity purely as a

matter of law.          Johnson v. Jones, 115 S.Ct. 2151, 2155 (1995);

Mitchell v. Forsyth, 472 U.S. 511, 528 (1985); Boulos v. Wilson,

834 F.2d 504, 509 (5th Cir. 1987).                      By contrast, when a district

court   denies      a        qualified    immunity          defense     based    on    its

determination that the summary judgment record raises a genuine

issue of fact concerning the applicability of the defense, such

order is not immediately appealable under the collateral order

doctrine.    Johnson, 115 S.Ct. at 2156; Boulos, 834 F.2d at 509.

     Here, the district court denied Rivera’s motion for summary

judgment    based   on        the    defense       of   qualified     immunity   without

supporting explanation.                We are not precluded, however, from

reviewing the order.                In such a case, the movant can claim on

appeal “that all of the conduct which the District Court deemed

sufficiently supported for purposes of summary judgment met the

Harlow standard of ‘objective legal reasonableness.’”                       Behrens v.

Pelletier, 116 S.Ct. 834, 842 (1996); Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982).                We must therefore review the record to

determine what conduct the district court attributed to Rivera in

finding that he had violated clearly established law and was not,

therefore, entitled to the defense of qualified immunity. Behrens,



                                               5
116 S.Ct. at 842; Johnson, 115 S.Ct at 2159; Harlow, 457 U.S. at

818.

       As our discussion, infra, demonstrates, our review of the

record shows that Rivera is entitled to the defense of qualified

immunity based on the undisputed fact that the Petta children

alleged purely psychological harm as a result of Rivera’s actions.

At the time of these events, it was not “clearly established” in

our law that such non-physical harm gave rise to a constitutional

tort.

                                         II.

       A   police   officer     who,   acting    under       color     of   state   law,

subjects     a   United    States      citizen    to     a    deprivation      of   his

constitutional rights is liable for damages to the injured party.

See 42 U.S.C. § 1983 (West 1997); Scheuer v. Rhodes, 416 U.S. 232,

237 (1974).      The Supreme Court has read § 1983 “in harmony with

general principles of tort immunities and defenses rather than in

derogation of them.” Imbler v. Pachtman, 424 U.S. 409, 418 (1976);

see Tenney v. Brandhove, 341 U.S. 367, 376 (1951).                     Thus, a police

officer may interpose a defense of qualified immunity when faced

with a § 1983 action.          Imbler, 424 U.S. at 418; Pierson v. Ray, 386

U.S. 547, 555-557 (1967); Rankin v. Klevenhagen, 5 F.3d 103, 108

(5th Cir. 1993).

       The   doctrine     of   qualified      immunity       shields    a   government

official performing discretionary functions from civil damages



                                          6
liability, provided his complained of actions meet the test of

“objective legal reasonableness.”           Harlow v. Fitzgerald, 457 U.S.

800, 819 (1982).      We assess the “objective reasonableness” of an

officer’s actions in light of legal rules that were “clearly

established” at the time those actions were taken.                  Anderson v.

Creighton, 483 U.S. 635, 639 (1987).

     We     must   take   care   to    identify     the    relevant    “clearly

established law” at the proper level of generality so that the

defense of qualified immunity will serve its intended purpose,

i.e., to allow officers “reasonably [to] anticipate when their

conduct may give rise to liability for damages.”                  Anderson, 483

U.S. at 639-40, quoting Davis v. Scherer, 468 U.S. 183, 195 (1984).

To that end, for a right to be “clearly established” we require

that its “contours ... must be sufficiently clear that a reasonable

official would understand that what he is doing violates that

right.”   Anderson, 483 U.S. at 640.         It is not necessary, however,

that prior cases have held the particular action in question

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

the unlawfulness must be apparent.” Id., citing Mitchell, 472 U.S.

at 535 n.12 and Malley v. Briggs, 475 U.S. 335, 344-45 (1986).

     In   Siegert    v.   Gilley,     the   Supreme     Court     clarified   the

“analytical    structure”    for      addressing    a     claim   of   qualified

immunity.    500 U.S. 226, 231-32 (1991).          Once a defendant pleads a

defense of qualified immunity, the trial judge must first determine



                                        7
“whether the plaintiff has alleged a constitutional violation at

all” under current law.            Siegert, 500 U.S. at 232; see Rankin, 5

F.3d       at   108    (“When   evaluating       whether      a    plaintiff    stated   a

constitutional           violation,   we     looked      to       currently    applicable

constitutional standards.”).               If the plaintiff has done so, the

judge       then      determines   whether       the    defendant’s       actions   were

“objectively reasonable” with reference to “clearly established

law” at the time of the conduct in question.                       Siegert, 500 U.S. at

231; Rankin, 5 F.3d at 108.            We have observed that this analysis

will at times lead to a “somewhat schizophrenic approach,” as, for

example, when a court must apply conflicting legal standards to the

two prongs of the test.            See, e.g., Rankin, 5 F.3d at 109 & n.7.3

       With those principles in mind, we now turn to the merits of

Rivera’s qualified immunity defense.                   We review de novo the denial

of Rivera’s motion for summary judgment on the basis of qualified

immunity.          Hale v. Townley, 45 F.3d 914, 917 (5th Cir. 1995);

Salas v. Carpenter, 980 F.2d 299, 304 (5th Cir. 1992).

                                           III.


       3
      In Rankin, we applied Hudson v. McMillian, 503 U.S. 1 (1992),
to the initial “constitutional violation” question, while applying
Shillingford v. Holmes, 634 F.2d 263 (5th Cir. 1981), to the
“clearly established law” question, even though Hudson had altered
the Shillingford test for Eighth Amendment violations. See Hudson,
503 U.S. at 9-10; Shillingford, 634 F.2d at 265. This apparent
conundrum was inevitable, however, because the qualified immunity
analysis requires us to evaluate the state of a “constitutional
violation” at two different times, i.e., when the plaintiff files
his lawsuit and when the allegedly violative conduct occurred. See
Siegert, 500 U.S. at 231-32.

                                             8
                                      A.

     The Petta children claim that Rivera’s abusive behavior and

use of excessive force during the initial stop and ensuing chase

caused them severe emotional harm and thus deprived them of liberty

without due process, in violation of the Fourteenth Amendment.

See, e.g., Landol-Rivera v. Cruz Cosme, 906 F.2d 791, 796 (1st Cir.

1990); Pleasant v. Zamieski, 895 F.2d 272, 276 n.2 (6th Cir. 1990);

Sinaloa Lake Owners Ass’n v. City of Simi Valley, 882 F.2d 1398,

1408 n.10 (9th Cir. 1989).4          We assume without deciding that the

Petta    children   have   alleged    a       constitutional   violation   under

current law5 because we find that, at the time of the incident in

question, the law was not “clearly established” that a police

officer’s use of excessive force resulting in purely emotional harm

rose to the level of a constitutional due process violation.

                                      B.


     4
      We cite cases from other Circuits because, as our discussion,
infra Part III.B.4 demonstrates, we have not found cases in our
Circuit, post-Graham v. Connor, 490 U.S. 386 (1989), analyzing
excessive force claims under the Fourteenth Amendment where,
although in the context of an arrest or investigatory stop, no
technical “seizure” had occurred for Fourth Amendment purposes.
Cf. Ikerd v. Blair, 101 F.3d 430, 433 n.6 (5th Cir. 1996); Mouille
v. City of Live Oak, 918 F.2d 548, 550-51 (5th Cir. 1990).
     5
      But see Ikerd, 101 F.3d at 434 n.10 (declining to address
issue, in Fourth Amendment context, whether some physical injury is
required to state excessive force claim), and Hinojosa v. City of
Terrell, Texas, 834 F.2d 1223, 1230 (5th Cir. 1988)(declining to
reach issue, outside Fourth Amendment context, “whether or not some
type of physical injury will in every instance be necessary for [§]
1983 liability in a use of excessive force claim.). See discussion
infra Part III.B.3.

                                          9
     In order to assess what “clearly established” legal standards

governed Rivera’s actions on January 15, 1990, we must trace the

origins in this Circuit of a Fourteenth Amendment claim based on a

police officer’s use of excessive force.

                                      1.

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

we first sketched the parameters of such a claim, relying in part

on Hall v. Tawney, 621 F.2d 607, 613 (4th Cir. 1980), and Johnson

v. Glick, 481 F.2d 1028, 1033 (2nd Cir. 1973).             We defined the

“constitutional tort” thus:

              If the state officer’s action caused severe
              injuries, was grossly disproportionate to the
              need for action under the circumstances and
              was inspired by malice rather than merely
              careless or unwise excess of zeal so that it
              amounted to an abuse of official power that
              shocks the conscience, it should be redressed
              under Section 1983.

Shillingford, 634 F.2d at 265.             Regarding the “severe injury”

requirement, we specifically noted that “[t]he degree of force

exerted and the extent of physical injury inflicted that together

amount   to    a    constitutional   deprivation   must,   of   course,   be

determined by the facts of a given case.”           Id.    We thus avoided

drawing any “bright lines” based on the severity of a particular

injury that would separate constitutional from non-constitutional

violations.        Id., citing Baker v. McCollan, 443 U.S. 137 (1979).

Furthermore, in addressing the factual situation presented in




                                      10
Shillingford,6 we focused as much on the potential for severe

injury created by the policeman’s conduct as on the actual injury

itself.   Shillingford, 634 F.2d at 266 (“That the results of the

attack on Shillingford’s person were not crippling was merely

fortuitous.   That same blow might have caused blindness or other

permanent injury.”).

     Shillingford provided the standard for excessive force claims

in this Circuit for the next eight years.7     We note, however, a


     6
     Shillingford involved a policeman’s unprovoked attack of a
bystander who was attempting to photograph an arrest.       The
policeman smashed Shillingford’s camera into his face with a
nightstick, destroying the camera and lacerating Shillingford’s
forehead. Shillingford, 634 F.2d at 264.
     7
      See, e.g., Raley v. Fraser, 747 F.2d 287, 289 (5th Cir. 1984);
Lynch v. Cannatella, 810 F.2d 1363, 1375 (5th Cir. 1987); Stevens
v. Corbell, 832 F.2d 884, 889 (5th Cir. 1987); Hinojosa v. City of
Terrell, Texas, 834 F.2d 1223, 1229 (5th Cir. 1988); Brumfield v.
Jones, 849 F.2d 152, 156 (5th Cir. 1988). In 1986, however, the
Supreme Court decided Whitley v. Albers, 475 U.S. 312 (1986), which
may have imposed a slightly different standard on excessive force
claims based on the Eighth Amendment’s prohibition of cruel and
unusual punishments. In Whitley, the Court stated that “whether
the measure taken inflicted unnecessary and wanton pain and
suffering ultimately turns on ‘whether force was applied in a good
faith effort to maintain or restore discipline or maliciously or
sadistically for the very purposes of causing harm.’” Whitley, 475
U.S. at 320-21, quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2nd
Cir. 1973). We observe, however, that in formulating its standard
for Eighth Amendment excessive force violations in 1986, the
Supreme Court relied on Johnson v. Glick, supra, the same case the
Shillingford court had relied on. See Shillingford, 634 F.2d at
265.   Also, we have before held that the Whitley test did not
govern a Fourteenth Amendment excessive force claim in 1987, see
Stevens, 832 F.2d at 889, while at the same time noting the Supreme
Court’s statement in Whitley that “at least in the prison security
guard context, the ‘Due Process clause affords no greater
protection than does the Cruel and Unusual Punishment Clause.’”
Id., quoting Whitley, 475 U.S. at 327.      Thus, it seems unclear

                                 11
handful of decisions applying Shillingford that shed light on the

question before us.

     In McFadden v. Lucas, 713 F.2d 143 (5th Cir. 1983), we

considered a prisoner’s § 1983 claim, alleging, inter alia, that

twenty-two correction officers forced him, through an “intimidating

show of force,” to shave his beard, which he wore for religious

reasons, in violation of the First and Eighth Amendments.             In

determining whether the plaintiff had stated a claim that his right

to be free from cruel and unusual punishment had been violated, we

relied on Shillingford and Johnson v. Glick, supra.         Id. at 146.

We found that plaintiff’s complaint

          [fell] so short of stating a section 1983
          cause of action as to warrant sua sponte
          dismissal by the court below. The plaintiff
          has nowhere alleged that he was physically
          assaulted.   In fact, the plaintiff nowhere
          alleges that, except for the commonplace event
          of being shaved, any touching of his person
          occurred at all.

Id. at 146-47.    We went on to state that, even if the officers’

show of force could be considered excessive, “we must, in the

absence   of   physical   abuse,   concur   with   the   lower   court’s

dismissal.”    Id. at 147 (emphasis added).   The absence of physical

abuse seemed to us, under those circumstances, to prevent the


whether there was a different standard for Eighth Amendment, as
opposed to Fourth and Fourteenth Amendment, excessive force claims
in 1986; as our discussion, infra, demonstrates, however, the need
to distinguish became clearer with the Supreme Court’s decisions in
Graham v. Connor, 490 U.S. 386 (1989), and Hudson v. McMillian, 503
U.S. 1 (1992).

                                   12
alleged misconduct from “shock[ing] the conscience.”           Id., quoting

Rochin v. California, 342 U.S. 165, 172 (1952).

     In Coon v. Ledbetter, 780 F.2d 1158 (5th Cir. 1986), we

allowed a § 1983 claim for excessive force on behalf of a young

child under circumstances somewhat similar to ours.            In Coon, the

police allegedly fired into a trailer attempting to apprehend the

trailer’s owner, Billy Dan Coon.           Coon’s four-year-old daughter,

Racheal, was inside the trailer when the shot was fired.              Although

the facts do not indicate that Racheal suffered anything but

“sleeplessness and nightmares” after the incident, we nonetheless

found    that   she   had   sufficiently    alleged   a   violation    of   her

constitutional rights.       Id. at 1160-1161.8

     In Coon, we addressed the contours of the excessive force

claim in the context of whether the plaintiffs had adequately

alleged a constitutional violation.         Id. at 1160-61.    We discussed

the officers’ defense of qualified immunity only insofar as it

could arise on retrial.        Id. at 1164.     We did not, in any case,

     8
     Addressing why Racheal had alleged sufficient “personal loss
required for a constitutional claim,” and why her mother, Dana, had
not, we stated:

     There was no evidence that any act of the deputies was
     directed toward Dana; she was not directly involved in
     the shooting and was with the deputies when it occurred.
     Racheal, however, was in the trailer. There was evidence
     that Coon staggered into the trailer and while he was
     there attempted to protect Racheal from the gunfire, and
     there was evidence that Deputy Gussberry fired a round of
     heavy buckshot into the trailer at that time.

Id. at 1161.

                                     13
squarely address the question whether non-physical injury alone

could satisfy the Shillingford test (although we certainly implied

that it would). Regarding the applicability of qualified immunity,

we merely observed that “[u]se of excessive force in making an

arrest violates clearly established rights, and the doctrine of

qualified immunity therefore does not shield an officer who uses

excessive force.”       Id.

     We   do   not    call    Coon     into    question,   however.     In    1986,

Shillingford was “clearly established law” in this area and we had

not yet drawn any “bright lines” between constitutional and non-

constitutional violations on the basis of physical or non-physical

injuries (see discussion infra at III.B.3). Thus, the Coon court’s

implicit finding that the officers’ conduct there satisfied the

Shillingford test (and in particular that Racheal Coon’s injuries

were “severe,” see Shillingford, 634 F.2d at 265) appears justified

in light of “clearly established” legal rules at that time.

     Shortly after Coon, we decided Checki v. Webb, 785 F.2d 534

(5th Cir. 1986), in which police officers allegedly chased the

plaintiffs     at    high     speeds    without    probable     cause   and    then

physically abused them at a police roadblock.                 Id. at 535-36.     In

finding that the plaintiffs had filed suit in a proper venue under

28 U.S.C. § 1391 and had thus interrupted prescription under

Louisiana law, we considered where the plaintiffs’ constitutional

claim “arose” for purposes of the federal venue statute.                     Id. at



                                          14
537-38.      We held that, although the plaintiffs sustained all

physical injuries in the Middle District of Louisiana, they could

have properly alleged a constitutional violation arising out of the

officers’ conduct (the high-speed chase) in the Eastern District:

           It cannot be reasonably argued that no serious
           physical danger confronts civilians who are
           forced to travel at speeds over 100 mph in
           their attempt to flee a terrorizing police
           officer.    Furthermore, there is no valid
           reason for insisting on physical injury before
           a section 1983 claim can be stated in this
           context.   A police officer who terrorizes a
           civilian by brandishing a cocked gun in front
           of that civilian’s face may not cause physical
           injury, but he has certainly laid the building
           blocks for a section 1983 claim against him.

Id. at 538.    Thus, we found venue proper in the Eastern District of

Louisiana.    Id.

     Over a year later we decided Jefferson v. Ysleta Independent

School District, 817 F.2d 303 (5th Cir. 1987).          In Jefferson, the

parents of an eight-year-old girl sued school officials under §

1983 for allegedly tying her to a chair with a jump rope for the

greater part of two days, denying her access to the bathroom and

thereby   causing   her   “humiliation   and   mental   anguish   ...   and

[impairment] in her ability to study productively.”          Id. at 304.

We affirmed the district court’s rejection, on summary judgment, of

the defendants’ claim of qualified immunity:

           We are persuaded that in January 1985, a
           competent teacher knew or should have known
           that to tie a second-grade student to a chair
           for an entire school day and for a substantial
           portion of a second day, as an educational

                                   15
            exercise, with no suggested justification,
            such   as  punishment   or  discipline, was
            constitutionally impermissible.

Id. at 305.        We found, citing Shillingford, that plaintiffs’

allegations, if proven, “would implicate, inter alia, Jardine’s

fifth and fourteenth amendment rights to substantive due process,

specifically her right to be free from bodily restraint.”                 Id.9

Again, we did not squarely address whether non-physical injuries

(which are all that were alleged in Jefferson, although the claimed

constitutional wrongs clearly involved prolonged physical distress)

would    satisfy   the   Shillingford     “severe   injury”    requirement.

Instead, we focused on the outrageous conduct of the defendants.

See id.

     Less than a year later, we addressed in Hinojosa v. City of

Terrell, Texas, 834 F.2d 1223 (5th Cir. 1988), the hypothetical

situation posited in Checki (supra, 785 F.2d at 538), but perhaps

reached a different result than the Checki panel had predicted.

There, the    plaintiff    sued   several   officers   under   §   1983   for

allegedly using excessive force against him where, in the course of


     9
     As our discussion of legal developments subsequent to
Jefferson demonstrates (see discussion infra III.B.3), we need not
distinguish Jefferson.     We do point out, however, that the
constitutional right relied upon in Jefferson, while deriving from
the due process clause, was slightly distinct from that relied on
by the Petta children. Arguably, a due process right “to be free
from bodily restraint,” see Jefferson, 817 F.2d at 305, is
conceptually different from a due process right “to be free from
excessive force,” where the claimed excessive force does not
involve any bodily restraint or “damage to a person’s bodily
integrity,” see Shillingford, 634 F.2d at 265, whatsoever.

                                     16
an altercation and subsequent arrest, an officer waved a gun in the

plaintiff’s face.     We treated the plaintiff’s claims as arising

under the Fourteenth Amendment, however, because we found that the

alleged excessive force (waving a gun in the plaintiff’s face)

occurred    before,   and   was    not    involved   in,   the   plaintiff’s

subsequent arrest.      See id. at 1229 n.7.           We found that the

plaintiff had not produced sufficient evidence under Shillingford

to support the jury’s finding in his favor on the excessive force

claim.     We therefore reversed the district court’s denial of the

defendant’s motions for judgment notwithstanding the verdict and

for new trial.    Id. at 1229-31.

     We found in Hinojosa that the plaintiff’s injury “which

[could] only be characterized as temporary emotional distress,

simply [did] not rise to a level that can be redressed for such a

claim under section 1983.”        Id. at 1229.   We then stated that

            [t]here is absolutely no evidence ... that
            Hinojosa was struck, or even touched, during
            the incident. Hinojosa did not claim to have
            suffered even minor physical injuries or
            intrusion.

Id. (emphasis added). While those statements strongly suggest that

the Hinojosa panel would have required some physical injury to meet

the Shillingford “severe injury” requirement, the panel went on to

state that “[t]his Court does not here determine whether or not

some type of physical injury will in every instance be necessary

for section 1983 liability in a use of excessive force claim.”


                                     17
Id.10

                                             2.

        In     sum,   Shillingford     was     the      “clearly     established    law”

governing most, if not all, excessive force claims from January 15,

1981 until July 5, 1989, when we decided Johnson v. Morel, 876 F.2d

477 (5th Cir. 1989)(see infra Part III.B.3).                          We pause here,

however, to assess the state of the law just prior to Johnson to

demonstrate that Officer Rivera might not be entitled to qualified

immunity if Shillingford and its progeny had continued to be

“clearly established law” for the Petta children’s claims.

        As the law stood under Shillingford, McFadden, Coon, Checki,

Jefferson and Hinojosa (see supra), our Circuit seemed to make an

analytical        distinction     between         (1)   cases   deciding       whether    a

defendant       was    entitled   to     qualified        immunity    on   a    claim    of

excessive force (see, e.g., Jefferson, 817 F.2d at 305; Lynch v.

Cannatella, 810 F.2d 1363, 1374 (5th Cir. 1987)) and (2) cases

determining whether a plaintiff had sufficiently alleged a cause of

action for excessive force under § 1983 (see, e.g., Shillingford,

634     F.2d    at    265;   Hinojosa,    834      F.2d    at   1229-30).11       Such    a


        10
      The Hinojosa panel seemed to cite with approval the Seventh
Circuit’s decision in Gumz v. Morissette, 772 F.2d 1395 (7th Cir.
1985), which stated that “the ultimate question here is, after all,
whether the use of force was so egregious as to be constitutionally
excessive, and the presence of some physical injury is certainly
relevant to that determination.” Id. at 1401.
        11
      Coon, we should note, is somewhat of an anomaly since it
addressed both questions, see Coon, 780 F.2d at 1160-61, 1164, but

                                             18
distinction is justified in the following sense:                      in the former

cases,    we    focused    on   the    “objective       reasonableness”        of    the

defendant’s      actions   in   order     to   further       one    purpose    of    the

qualified       immunity   defense,      i.e.,    “to        insure   that    [public

officials] do not hesitate to take actions reasonably calculated to

advance the public good,” Lynch, 810 F.2d at 1374; in the latter

cases, we focused, inter alia, on the severity of the alleged

injury, because the purpose of such threshold requirements in a §

1983     excessive    force     claim     is     “to     distinguish         potential

constitutional violations from mere breaches of state tort law.”

Hinojosa, 834 F.2d at 1229; Shillingford, 634 F.2d at 264.                            It

would then follow that the “severity” of a particular injury would

be determinative only in the second group of cases:                   i.e., where we

are    assessing     whether     a    plaintiff        has    adequately      pled     a

constitutional violation.            See, e.g., Hinojosa, 834 F.2d at 1230;

Gumz, 772 F.2d at 1401.

       If such were the analysis in the Fifth Circuit today, the

Petta children could plausibly argue that Rivera is not entitled to

assert    the    defense   of   qualified      immunity:           Rivera’s    conduct

violated “clearly established law” (i.e., Shillingford) because it

would have been apparent to a reasonable officer that such conduct

(a high-speed chase, shooting at the fleeing car’s tires) in

response to a speeding violation (1) was grossly disproportionate


considered the severity of the plaintiff’s injury under neither.

                                         19
to the need presented, (2) was motivated by malice,12 and (3) could

have caused severe injuries.13           See, e.g., Hinojosa, 834 F.2d at

1229.     That is the position of the dissent (see infra at ___), as

we understand it.         Our precedents intervening between 1988 and

January 15, 1990 (the time of the conduct in question here),

however,     slightly     alter   the   focus   of   our   qualified    immunity

analysis (see discussion infra Part III.B.3) and constrain us to

part company with the dissent.

                                        3.

     In Graham v. Connor, 490 U.S. 386 (1989), the Supreme Court

held that

             all claims that law enforcement officers have
             used excessive force--deadly or not--in the
             course of an arrest, investigatory stop, or
             other “seizure” of a free citizen should be
             analyzed under the Fourth Amendment and its
             “reasonableness” standard, rather than under a
             “substantive due process” approach.

Graham, 490 U.S. at 395.          The Court thus rejected the Johnson v.

Glick test (see discussion supra Part III.B.1) for those excessive

force     claims   that   implicate     the   Fourth   Amendment’s     “explicit


     12
      In any event, plaintiffs could have argued that the summary
judgment record presented genuine factual disputes as to the first
two elements and that the district court’s denial of Rivera’s
qualified immunity defense was therefore unreviewable on appeal
under the collateral order doctrine. See discussion supra Part I;
see also Johnson v. Jones, 115 S.Ct. at 2156.
     13
      Under the Shillingford analysis, whether Rivera’s conduct in
actual fact caused “severe injuries” would only be an appropriate
inquiry in addressing whether the Petta children adequately alleged
a constitutional violation. See Shillingford, 634 F.2d at 266.

                                        20
textual source of constitutional protection against this sort of

physically intrusive governmental conduct....”       Id.14   The Court

endorsed the Johnson v. Glick test, however, in the context of an

Eighth Amendment excessive force claim.      Id. at 398 n.11 (Johnson

v. Glick test “might be useful in analyzing excessive force claims

brought   under   the   Eighth   Amendment.”).   Finally,    the   Court

recognized that the due process clause could have continuing

viability in excessive force claims not implicating a specific Bill

of Rights protection.     Graham, 490 U.S. at 395 n.10 (because it is

unclear whether the Fourth Amendment extends to pretrial detainees,

“the Due Process Clause protects a pretrial detainee from the use

of excessive force that amounts to punishment.”).

     Expressly relying on Graham, our en banc Court addressed, in

Johnson v. Morel, 876 F.2d 477 (5th Cir. 1989), whether the

plaintiff had stated a Fourth Amendment violation where an officer

roughly handcuffed him during an investigatory stop, allegedly

resulting in permanent scars on his wrists.      Johnson, 876 F.2d at


     14
      The Fourth Amendment standard, as explicated by the Court,
assesses the “objective reasonableness” of an officer’s conduct by
focusing on

           the facts and circumstances of each particular
           case, including the severity of the crime at
           issue, whether the suspect poses an immediate
           threat to the safety of the officers or
           others, and whether he is actively resisting
           arrest or attempting to evade arrest by
           flight.

Id. at 396, citing Tennessee v. Garner, 471 U.S. 1, 8-9 (1985).

                                    21
478-79.   We stated that “[t]here can be a constitutional violation

only if significant injuries resulted from the officer’s use of

excessive force.”     Id. at 479-80.15   Notably, we appended the

following footnote to our “significant injury” holding:

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

Id. at 480 n.1.     Finding that the plaintiff had created a fact

issue as to whether his injuries were “significant,” we allowed him

to go forward with his excessive force claim.   Id. at 480.

     Judge Rubin, joined by six other Judges, concurred in the

Court’s judgment, but criticized the majority, inter alia, for

adding a “significant injury” requirement to the Fourth Amendment

claim.    Johnson, 876 F.2d at 480-81 (Rubin, J., concurring).16


     15
      We set forth the required elements for an excessive force
claim based on a violation of the Fourth Amendment as:

     (1) a significant injury, which
     (2) resulted directly and only from the use of force that
     was clearly excessive to the need; and the excessiveness
     of which was
     (3) objectively unreasonable.

Johnson, 876 F.2d at 480. At the same time, we “overrule[d] all
previous decisions of the circuit to the contrary.” Id.
     16
      Significantly for our purposes, Judge Rubin remarked that
“[e]ven under the stringent Fourteenth Amendment ‘shock the
conscience’ test, a plaintiff could recover for a policeman’s use
of excessive force without demonstrating that he had suffered
severe, permanent, or physical injuries.” Johnson, 876 F.2d at 481
(Rubin, J., concurring)(emphasis added). Judge Rubin cited Checki

                                 22
Additionally, Judge Rubin dissented from the majority opinion

insofar as it read Graham to bar the plaintiff’s due process claims

for abuse that occurred before and after the arrest.               Id. at 482-

84; see Graham, 490 U.S. at 394-95 & n.10.

     Johnson v. Morel remained the law in this Circuit until Hudson

v. McMillian, 503 U.S. 1, 7-8 (1992), although itself in the Eighth

Amendment context, overruled by implication Johnson’s “significant

injury” requirement.17        See, e.g., Harper v. Harris County, Texas,

21 F.3d 597, 600 (5th Cir. 1994)(“We now hold that the Johnson

standard is no longer valid in the wake of Hudson v. McMillian

....”).     Between July 5, 1989 and February 25, 1992, however,

Johnson    v.   Morel   was   “clearly     established   law”    regarding   an

excessive force claim brought under the Fourth Amendment.               As we

have noted above, this is the relevant “legal window” within which

we must look to determine whether Officer Rivera’s actions on

January 15, 1990 were “objectively reasonable.”

     The    most   significant     development     in    our    Circuit’s    law

regarding excessive force claims and qualified immunity came,




v. Webb (see supra Part III.B.1) for the proposition that non-
physical injuries were cognizable under the due process clause.
Id. at 481 n.9.
     17
      Reversing the Fifth Circuit, the Supreme Court in Hudson held
that a prisoner was not required to prove “significant injury” as
a prerequisite to his Eighth Amendment excessive force claim;
instead, the Court adopted the Whitley v. Albers (see supra note 7)
“malicious and sadistic” standard for all Eighth Amendment
excessive force claims. Hudson, 503 U.S. at 6-7.

                                      23
ironically,18 almost three years after the Johnson v. Morel window

closed, in Dunn v. Denk, 54 F.3d 248 (5th Cir. 1995), rev’d en

banc, 79 F.3d 401 (5th Cir. 1996).       In Dunn, a police officer

arrested the plaintiff in January, 1990, and in doing so allegedly

threw her facedown in a ditch, put his knee in the small of her

back, handcuffed her, pulled her up by her arms and placed her in

his squad car.   Dunn, 54 F.3d at 249.   The plaintiff, who was on a

weekend pass from a mental institution and was being driven home by

her friend when they were stopped, alleged she suffered only minor

bruises but serious psychological injury.       Id.     She sued the

officer under § 1983 for malicious prosecution and use of excessive

force;    the jury found for her on the latter claim.   Id.

     The Dunn panel found that the officer was not entitled to

qualified immunity, because “[i]t was clearly established before

January 1990, when Denk arrested Dunn, that both physical and

psychological injuries were compensable in civil rights actions.”

Id. at 250, citing Hinshaw v. Doffer, 785 F.2d 1260 (5th Cir. 1986)

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

majority thus included “significant injury” as a component of the

restrospective, “clearly established law” prong of the qualified


     18
      Ironic, because normally we would look only to case law in
effect on January 15, 1990, to determine what law was “clearly
established” at that time. The two decisions in Dunn v. Denk are
relevant, however, because they provide a retrospective assessment
of what “clearly established law” was regarding a Fourth Amendment
excessive force claim in January, 1990. See Dunn, 79 F.3d at 402;
54 F.3d at 250.

                                 24
immunity analysis:

             Although no longer required, at the time of
             this incident significant injury was a
             necessary element of an excessive force claim.
             Accordingly,   to   defeat  Denk’s   qualified
             immunity defense Dunn was obliged to prove a
             significant injury.

Dunn, 54 F.3d at 249 (emphasis added); see Siegert, 500 U.S. at

231; Rankin, 5 F.3d at 108-09 & n.7; see also discussion supra Part

III.B.1.      Although   he   dissented,   Judge   Barksdale,   like   the

majority, viewed the “significant injury” requirement as an element

of the “clearly established law” guiding the officer’s conduct at

the time of the incident.19     He simply disagreed with the majority

that, under Johnson in 1990, it was “clearly established” that the

plaintiff had a constitutional right to be free from non-physical,

psychological injury resulting from excessive force.        See Dunn, 54

F.3d at 256 (Barksdale, J., dissenting).

     A fragmented en banc Court vacated the Dunn panel opinion and

found the officer entitled to qualified immunity.           See Dunn v.

Denk, 79 F.3d 401, 403 (5th Cir.)(en banc), cert. denied 117 S.Ct

61 (1996).    Eleven judges joined Part I of Judge King’s “majority”



     19
      Judge Barksdale initially observed: “It goes without saying
that, to avoid a qualified immunity defense, a plaintiff must claim
a constitutional violation that was clearly established at the time
of the alleged wrongful conduct.” Dunn, 54 F.3d at 253 (Barksdale,
J., dissenting). He later stated that “even assuming arguendo 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.” Id. at 255.

                                    25
opinion, six of those judges by way of separate concurrence.20

While     conceding   that   under   Hudson   v.   McMillian,   supra,   the

plaintiff’s injury may well have satisfied present constitutional

standards, see 79 F.3d at 402-03, Judge King continued her analysis

by “look[ing] to the state of the law when the arrest at issue

occurred.”     Id. at 403, citing Harper, 21 F.3d at 601.21          Judge

King went on to state:

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


     20
      Judge King’s opinion was joined by Judges Garwood,
Higginbotham, Davis and Duhé. Judge Barksdale concurred separately
in Part I of Judge King’s opinion, but dissented to Part II; he
was joined by Judges Jolly, Jones, Smith, Garza and DeMoss. Judge
Reavley, joined by Chief Judge Politz and Judges Wiener, Benavides,
Stewart, Parker and Dennis, dissented. Judge Dennis also wrote a
separate dissent. When we have sifted through the wreckage, it is
clear that Part I of the Dunn en banc decision commanded a majority
of the Court (eleven judges).
     21
      Thus, it seems clear that Judge King’s analysis was directed
towards the second prong of the qualified immunity analysis, i.e.,
whether the officer’s actions were “objectively reasonable” under
“clearly established law” at the time of the incident in question.
As support for that conclusion, we note that Judge King cited to
the part of Harper v. Harris County, Texas that emphasized “the
objective reasonableness of a government official’s conduct must be
measured with reference to the law as it existed at the time of the
conduct in question.” Harper, 21 F.3d at 601 (emphasis added).
Later on that same page, the Harper panel chided the district court
for “not consider[ing] the seriousness of the alleged injuries in
determining whether the officer’s conduct was objectively
reasonable.” Id. Such a qualified immunity analysis mirrors that
employed by both the panel and en banc decisions in Dunn.

                                      26
           case.

Dunn, 79 F.3d at 403, quoting Johnson, 876 F.2d at 480 n.1.22

      This holding demonstrates the same qualified immunity analysis

as that employed by the Dunn panel majority and dissent, supra.

Judge King relied on the significance of the injury as, using the

defendant’s   phrase,    an   “objective,   validating    event    of   the

reasonableness of force used in making an arrest.”         Dunn, 79 F.3d

at 403.    The dissent to the en banc decision confirms this view.

In arguing that the majority “distort[ed] the law of qualified

immunity,” the dissent advocated a focus, not on the results of the

officer’s actions (i.e., whether they caused “significant injury”)

but rather on the reasonableness of the actions themselves:

           Qualified immunity is concerned only with the
           reasonableness of an officer’s actions. Once
           an officer uses objectively unreasonable force
           to effect an arrest, he loses his qualified
           immunity, whether the other elements of an
           excessive force claim are clearly established
           or not.

Dunn, 79 F.3d at 405, 407 (Reavley, J., dissenting).           The dissent,

therefore, did not consider the severity of injury a component of

the    “clearly    established   law”   determining      the    “objective

reasonableness” of an officer’s actions.          The dissent defined

“clearly established law” at a higher level of generality than the


      22
      We note that as of this date, this Court has never squarely
held that non-physical injury is sufficient to establish a
violation of the Fourth Amendment.    A recent panel declined to
reach that very issue. See Ikerd v. Blair, 101 F.3d 430, 434 &
n.10 (5th Cir. 1996).

                                   27
majority, i.e., the law clearly proscribes the use of objectively

unreasonable and excessive force by an arresting officer.                   Id. at

405.        Judge King criticized the dissent’s position as having “no

support in the case law.”          Id. at 403 n.1.

       Thus,     emerging   from   the   en   banc   decision   in   Dunn    is   a

qualified immunity analysis that, at least for Fourth Amendment

excessive force claims, differs slightly from the analysis employed

in cases such as Coon, Jefferson and Lynch.             See discussion supra

Part III.B.1.       The principal difference, as we appreciate it, is

that Dunn relies on the severity of injury not only in defining a

constitutional tort under present law, but also as an “objective,

validating” factor in assessing the “objective reasonableness” of

an officer’s conduct.23        Irrespective, however, of the difference

between Dunn’s analysis and the qualified immunity cases going

before it, Dunn currently governs in this Circuit a qualified



       23
      Compare Dunn, 79 F.3d at 403 (relying on severity of injury
as   “objective,   validating   event”    in  assessing   objective
reasonableness of officer’s actions), with Jefferson, 817 F.2d at
305 (assessing school officials’ defense of qualified immunity
without considering severity of plaintiff’s injury ); Lynch, 810
F.2d at 1375-76 (relying on severity of injury as one of three
factors in    determining   whether    officers’  conduct   assumed
constitutional dimensions); Coon, 780 F.2d at 1163 (“[u]se of
excessive force in making an arrest violates clearly established
rights, and the doctrine of qualified immunity therefore does not
shield an officer who uses excessive force”; addressing qualified
immunity defense without considering severity of plaintiff’s
injuries). See also Anderson, 483 U.S. at 639-40 (intended purpose
of qualified immunity defense is to allow officers “reasonably [to]
anticipate when their conduct may give rise to liability for
damages.”)(emphasis added).

                                         28
immunity analysis in the context of a Fourth Amendment excessive

force claim.24

                                4.

     Dunn does not end our inquiry, however.      Dunn addressed a

claim for excessive force grounded in the Fourth Amendment.     See

Dunn, 79 F.3d at 402; 54 F.2d at 249.    As we observed, supra, the

district court in this case dismissed the Petta children’s Fourth

Amendment claims on finding that they had not been “seized.”    See

supra note 2 and accompanying text.   Their remaining claims, then,

are grounded in the due process clause of the Fourteenth Amendment.

See Graham, 490 U.S. at 395 n.1.25      The question remains, then,


     24
      We appreciate that Dunn focuses on a narrow legal window
(June 5, 1989 to February 25, 1992) and will have increasingly
limited applicability over the passage of time. This is doubly
true insofar as Hudson v. McMillian may have foreclosed using the
severity of injury as a determinative factor in delineating
constitutional violations. See, e.g., Dunn, 79 F.3d at 402-03
(“Counsel for Denk correctly concedes that whatever injury
requirement (if any) may remain after Hudson respecting a claim for
excessive force in arrest is satisfied here.”).
     25
      In view of the foregoing statement, we find it difficult to
understand the dissent’s assertion that

     the majority fails to acknowledge clearly that an
     officer’s excessive, unreasonable and outrageous use of
     deadly force against helpless and innocent bystanders
     such as the Petta children violates their Fourteenth
     Amendment substantive due process rights; and that,
     otherwise, innocent bystanders would be shorn of all
     constitutional rights and have less protection under the
     constitution and § 1983 tha[n] prisoners, arrestees, and
     detainees.

See infra at ___. On the contrary, we explicitly acknowledge that
where a plaintiff’s excessive force claim, whether he be a

                                29
whether Dunn also affects a Fourteenth Amendment excessive force

claim arising during an attempted but ultimately unsuccessful26

arrest.        Under the specific facts of this case, we must answer in

the affirmative; therefore, we find that in January, 1990, the

Petta children did not have a “clearly established” due process

right     to    be    free   from   excessive   force    resulting    in    purely

psychological harm.

     Our inquiry here is very narrow.               We are not asking whether

the Petta children’s psychological injuries were redressable under

the Fourteenth Amendment in January, 1990.               We are merely asking

whether a § 1983 plaintiff at that time had a clearly established

right under          the   Fourteenth   Amendment   to   be   free   from   purely

emotional harm resulting from an officer’s use of excessive force.

We have already demonstrated (see discussion supra Part III.B.3)


prisoner, arrestee, detainee, or an innocent bystander of tender
years, falls outside the specific protections of the Bill of
Rights, that plaintiff may still seek redress under the due process
clause of the Fourteenth Amendment. See Graham, 490 U.S. at 395
n.1. The Petta children have done so, and nothing we say here
detracts one iota from their constitutional right to do so. The
dissent’s broad assertions, however, beg the question whether the
Petta children’s due process claims fall within the parameters of
our caselaw defining the scope of their constitutional rights.
     26
      “Unsuccessful” in the sense that the excessive force (i.e.,
shooting at the tires and driving at high speeds) did not result in
the arrest. Petta’s arrest occurred subsequent to the chase and
apparently did not involve excessive force. See Hinojosa, 834 F.2d
at 1229 n.7 (“While Hinojosa was arrested, there was no evidence
that Jones’ pointing of his gun was done to effectuate Hinojosa’s
arrest.”).   In any case, Petta does not anywhere allege that
excessive force was used against her or her children when she
finally surrendered at her apartment.

                                          30
that such a right was not clearly established in January, 1990,

under the Fourth Amendment.      What we hold here is simply that the

same right was equally “unclear” (for qualified immunity purposes)

under the Fourteenth Amendment.           We do so for essentially two

reasons:   (1) our cases following Graham v. Connor do not clearly

distinguish between Fourth and Fourteenth Amendment analyses in

this context;   we are thus persuaded that Johnson v. Morel and Dunn

v. Denk (see discussion supra Part III.B.3), although admittedly

addressing    the   Fourth    Amendment    right,   also    affected27     the

Fourteenth Amendment right to be free from excessive force; and,

(2) under the particular facts here, we see no principled reason

for drawing an analytical distinction between the Petta children’s

due process claim and an arrestee’s Fourth Amendment claim, given

the substantially similar concerns implicated by the two claims

(e.g., the right to be free from excessive force in an arrest

situation and the need for a police officer to use reasonable force

in effecting arrests).

     Prior to Graham, no consistent attempt was made to cabin

excessive force claims under the Fourth, Eighth or Fourteenth

Amendments.     Thus,   the   Shillingford    standard     was   applied    to

excessive force cases regardless of which constitutional amendment


     27
      “Affected,” in the sense that Johnson (as interpreted by
Dunn) interjected into both the Fourteenth and Fourth Amendment
excessive force claims “uncertainty” about whether purely non-
physical injury rose to the level of a constitutional violation.
See infra; see also Dunn, 79 F.3d at 403.

                                    31
was implicated.       See, e.g., Brumfield v. Jones, 849 F.2d 152, 156

(5th Cir. 1988)(Fourth Amendment); Lynch, 810 F.2d at 1375 (due

process clause); Jamieson v. Shaw, 772 F.2d 1205, 1210 (5th Cir.

1985)(Fourth Amendment).         See also Stevens v. Corbell, 832 F.2d

884,    889   (5th   Cir.    1987)   (noting    similarity     of    Shillingford

standard to Whitley Eighth Amendment standard).                     Following the

Supreme Court’s guidance in Graham, see 490 U.S. at 393-95, one

would   have   expected      three   distinct    lines   of    excessive    force

jurisprudence,       i.e.,   under   the    Fourth,   Eighth    and    Fourteenth

Amendments.      To a certain extent, our post-Graham cases have

distinguished among the respective constitutional amendments in

analyzing excessive force claims.           See, e.g., Colston v. Barnhart,

No. 96-40634, 1997 WL 741806, at *3 (5th Cir. Nov. 19, 1997); Spann

v. Rainey, 987 F.2d 1110, 1115-16 & n.8 (5th Cir. 1993); King v.

Chide, 974 F.2d 653, 656-57 (5th Cir. 1992).                   We can discern,

however, no clear “line” of Fourteenth Amendment excessive force

cases following Graham that would clearly establish a different set

of standards for such claims.

       In fact, our review of Fifth Circuit case law following Graham

demonstrates a tendency to “blur” the lines between Fourteenth

Amendment and either Fourth or Eighth Amendment excessive force

standards, depending upon the particular factual context.                     For

example, we held in Valencia v. Wiggins, 981 F.2d 1440, 1446 (5th

Cir. 1993), that a pretrial detainee’s excessive force claim,



                                       32
although technically grounded in the Fourteenth Amendment, was

properly analyzed under Eighth Amendment standards.              In assessing

“what standard of due process” to apply to the plaintiff’s claim

that a jail official had subjected him to excessive force in

quelling a disturbance, we stated:

            [W]e are guided by the standard announced in
            Whitley and Hudson.       While these cases
            specifically addressed claims of excessive use
            of force brought by convicted prisoners, it is
            impractical to draw a line between convicted
            prisoners [subject to the Eighth Amendment]
            and pretrial detainees [subject to the
            Fourteenth Amendment] for the purpose of
            maintaining jail security.

Id.   at   1445-46   (brackets   added).     We   noted   that    the   Eighth

Amendment standards were useful in this particular Fourteenth

Amendment    context   because   of   the   similar   concerns    implicated

“whenever guards use force to keep order.”            Id. at 1446, quoting

Hudson, 503 U.S. at 6.      See also Jackson v. Culbertson, 984 F.2d

699, 700 (5th Cir. 1993); Bender v. Brumley, 1 F.3d 271, 277-78

(5th Cir. 1993); Nerren v. Livingston Police Department, 86 F.3d

469, 472-73 (5th Cir. 1996)(cases following Valencia and applying

Eighth Amendment standards to excessive force claims of arrestees

and pretrial detainees).

      Similarly, we have applied Fourth Amendment standards to

excessive    force claims that may have in part implicated the due

process clause.      For example, in Mouille v. City of Live Oak, 918

F.2d 548 (5th Cir. 1990), we addressed the excessive force claims



                                      33
of   several    plaintiffs   whom   a    police   officer   had   allegedly

terrorized when he burst into an office building in search of a

suspect.    Id. at 550.      Only one of the plaintiffs was arrested;

the others were mere bystanders subjected to the officer’s violent

behavior.      Id.   We addressed all of the excessive force claims

under the Fourth Amendment, observing that

            [t]he Supreme Court has stated that ‘all
            claims that law enforcement officers have used
            excessive force--deadly or not--in the course
            of an arrest, investigatory stop, or other
            “seizure” of a free citizen should be analyzed
            under the Fourth Amendment....’

Id., quoting Graham, 490 U.S. at 395.        We did not consider whether

all of the plaintiffs were “seized” within the meaning of the

Fourth Amendment.     It is at least arguable, however, that some of

the plaintiffs in Mouille were not “seized” and that, therefore,

their claims would have been more properly analyzed under the due

process clause.      See Brower v. Inyo County, 489 U.S. 593, 596-97

(1989)28; Graham, 490 U.S at 395 n.10.       See also Ikerd, 101 F.3d at

433 n.6 (applying Fourth Amendment standards to excessive force



      28
      For example, plaintiff Laurie Rollins was allegedly pushed by
the police officer into a wall as he searched for the suspect
Mouille. Mouille, 918 F.2d at 550. Plaintiff Grace Rollins was
not touched or otherwise targeted by the officer at all; she only
claimed that the officer had “terrified” her by abusing her
daughter. Id. at 554. Arguably, both plaintiffs’ claims did not
implicate the Fourth Amendment because they were not “seized” by
the officer, i.e., the officer did not detain either plaintiff
“through means intentionally applied.” See Brower, 489 U.S. at
596-97.   The officer apparently did not intend to arrest or
question either plaintiff.

                                    34
claim where police officer grabbed child’s arm; child’s father, and

not the child herself, was the object of the arrest); Stroik v.

Ponseti, 35 F.3d 155, 156-57 (5th Cir. 1994)(applying Fourth

Amendment to excessive force claim where hostage was shot by police

officer as officer fired at her captor).

     It is not our intention, however, to find fault with cases

like Mouille, Ikerd and Stroik.     We simply observe that, just as we

have sometimes used the Eighth Amendment to guide our due process

standards in certain excessive force cases, we have likewise used

Fourth Amendment   standards   in    cases   that,   at   least   in   part,

implicated substantive due process.      Such a practice seems to us

driven partly by precedent and partly by policy concerns.

     As we have already discussed (see supra Part III.B.1), the

excessive force claim originated in the undifferentiated context of

the due process clause, “quite apart from any ‘specific’ of the

Bill of Rights.”   Johnson v. Glick, 481 F.2d 1028, 1032 (2nd Cir.

1973).    We had no reason to differentiate among the amendments

until Graham29 in 1989;   thus, it comes as little surprise that the


     29
      A literal application of Graham to all claims of excessive
force used “in the course of an arrest, investigatory stop or other
‘seizure,’” 490 U.S. at 395 (emphasis added), could result in
application of the Fourth Amendment to situations partially covered
by the due process clause. For example, in Hinojosa, (supra Part
III.B.3) the police officer allegedly used excessive force (waving
a gun in the plaintiff’s face) “in the course of” an arrest; we
applied due process standards because the excessive force used was
separate from, and did not result in, the plaintiff’s arrest. See
Hinojosa, 834 F.2d at 1229 n.7. A strict adherence to Graham’s
language, however, would mandate application of the Fourth

                                    35
standards continue to “overlap” somewhat.              See, e.g., Nerren, 86

F.3d at 473 n.20 (noting “overlap” of arrestee’s Fourth Amendment

rights with his due process rights); Valencia, 981 F.2d at 1449

n.44 (noting “continued convergence of the various tests under the

Fourth,    Eighth     and   Fourteenth    Amendments   for   maltreatment   of

arrestees, detainees or convicted prisoners, respectively.”). Such

an “overlap” is borne out, in our view, by cases such as Harper,

where     we   held   that    Hudson     v.   McMillian’s    removal   of   the

“significant injury” requirement from the Eighth Amendment standard

also affected the Johnson v. Morel Fourth Amendment standard.               See

Harper, 21 F.3d at 600;        see also Oliver v. Collins, 914 F.2d 56,

59 n.1 (5th Cir. 1990)(pre-Hudson, looking to Johnson v. Morel and

its Fourth Amendment standard “in determining whether a particular

injury is of sufficient magnitude to invoke Eighth Amendment

protection....”).

     Underlying policy concerns may also explain the apparent

“overlap.”     In cases such as Valencia and its progeny, supra, we



Amendment in Hinojosa. Indeed, it would seem that our decisions in
Mouille, Stroik and Ikerd, supra, adopt that approach. While we
agree that the quoted language from Graham, supra, does support
such a broad application of the Fourth Amendment, we merely observe
here that footnote 10 in Graham could arguably be read to limit
application of Fourth Amendment standards to those situations in
which an officer has “by means of physical force or show of
authority, ... in some way restrained the liberty of a citizen.”
Graham, 490 U.S. at 395 n.10, citing Terry v. Ohio, 392 U.S. 1, 19
n.16 (1968) and Brower, 489 U.S. at 596. We submit that footnote
10 represents a narrower view of the applicability of the Fourth
Amendment than the language quoted in Mouille, supra. See also
Rankin, 5 F.3d at 107 n.3.

                                         36
borrowed Eighth Amendment standards in treating excessive force

claims under the due process clause.         We did so because the

concerns vindicated by a convicted prisoner’s excessive force claim

under the Eighth Amendment and those vindicated by a pretrial

detainee’s excessive force claim under the due process clause are

largely the same:     the need to guide the proper application of

force in maintaining jail security.       See Valencia, 981 F.2d at

1446.     We therefore adjudged it “impractical” to adopt different

criteria for pretrial detainees, even though their claims are

brought under the Fourteenth Amendment.      Id.

     The same reasoning applies to the Petta children’s claims. We

find it impractical and illogical to draw a line between their due

process claims and those of an arrestee who claims, under the

Fourth Amendment, that a police officer has used excessive force in

effecting his arrest.    Whether Officer Rivera’s use of force was

“objectively    reasonable”   largely   implicates   Fourth    Amendment

concerns,30 even though the fortuity of his bullet going astray

removed this case from the purview of “seizure” cases.        See Brower,

489 U.S. at 596-97.

     This could well mean that the present constitutional standards


     30
      For example, were we to weigh the reasonableness of Rivera’s
shooting at Petta’s car and engaging her in a high speed chase, we
would be interested, inter alia, in the severity of Petta’s crime,
in whether her flight “pose[d] an immediate threat to the safety of
the officers or others,” and whether Petta was “actively resisting
arrest or attempting to evade arrest by flight.” See Graham, 490
U.S. at 396, citing Tennessee v. Garner, 471 U.S. at 8-9.

                                  37
for   the   Petta   children’s   claims   are   governed   by   the   Fourth

Amendment “reasonableness” standard of Tennessee v. Garner (see

supra notes 14 & 29).     But, as we have observed above (supra Part

III.A.1), we need not decide that question today.                We simply

observe that our precedents, such as Johnson v. Morel, supra, and

Dunn v. Denk, supra, interjected as much uncertainty into our

Fourteenth Amendment jurisprudence as into our Fourth Amendment

jurisprudence, regarding whether a purely non-physical injury rose

to the level of a constitutional violation.31


      31
      We do not quarrel with the dissent’s assertion that the Petta
children need not “point to a precisely and explicitly analogous
case that existed prior to an officer’s violation of the
plaintiff’s constitutional rights” in order to defeat Officer
Rivera’s claim of qualified immunity. See infra at ___; see also
discussion supra Part II, citing Anderson, 483 U.S. at 640. Again,
however, that statement merely begs the question whether Officer
Rivera’s   actions   violated    constitutional   rights   “clearly
established” at the time of those actions. The dissent fails to
consider that our precedent was not only unclear about the
parameters of a Fourteenth Amendment excessive force claim, but
that it also failed to clearly distinguish between Fourth and
Fourteenth Amendment standards for such claims. See discussion
supra Parts III.B.3 & III.B.4.
     More importantly, however, the dissent disregards the effect
on the plaintiffs’ due process rights of our en banc decisions in
Johnson v. Morel, supra, and Dunn v. Denk, supra, merely finding
the reasoning in those cases “inapposite” because they were decided
under the Fourth Amendment. See infra at ___. Our discussion in
Part III.B.4 demonstrates that the excessive force claim did not
originate, nor does it presently exist, in neat, hermetically-
sealed categories according to which constitutional amendment the
claim implicates. Instead, cases arising under one amendment have
consistently affected the parameters of rights that, while arising
under different constitutional amendments, implicate similar policy
concerns.   See Part III.B.4; see also Harper, 21 F.3d at 600;
Valencia, 981 F.2d at 1445-46. The dissent does not consider that
phenomenon and thus fails to appreciate both the practical and
theoretical underpinnings of our excessive force jurisprudence.

                                    38
      We have observed before that the qualified immunity analysis

partakes of a somewhat “schizophrenic” nature.                   See Rankin, 5 F.3d

at   109.         This   case    aptly     demonstrates   that    phenomenon.   In

assessing Officer Rivera’s defense of qualified immunity, we must

assess the law as it stood some eight years ago, even when our case

law may have now moved on.           We must therefore hold that in January,

1990,       the     Petta       children     had   no     “clearly    established”

constitutional right under the due process clause to be free from

a police officer’s use of excessive force where the only injuries

allegedly suffered were psychological.               We therefore find that the

district court erred in denying Officer Rivera’s motion for summary

judgment based on the defense of qualified immunity.

                                            IV.

      For the foregoing reasons, we REVERSE the judgment of the

district court and RENDER judgment, granting Officer Rivera’s

motion for summary judgment based on the defense of qualified

immunity.

                                REVERSED AND RENDERED




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