PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RODNEY WINFIELD,
Plaintiff-Appellee,

v.

G. L. BASS; KELVIN CARLYLE;
ANTHONY CLATTERBUCK; JAMES
HICKS; GALVIN SIZEMORE; RONALD
                                                     No. 94-7346
WILLIAMS, or Walter Williams;
DONALD WILMOUTH, Lieutenant,
Defendants-Appellants,

and

UNKNOWN PRISON GUARDS,
Defendants.

RODNEY WINFIELD,
Plaintiff-Appellee,

v.

G. L. BASS; KELVIN CARLYLE;
ANTHONY CLATTERBUCK; JAMES
HICKS; GALVIN SIZEMORE; RONALD
                                                     No. 95-6422
WILLIAMS, or Walter Williams;
DONALD WILMOUTH, Lieutenant,
Defendants-Appellants,

and

UNKNOWN PRISON GUARDS,
Defendants.

Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CA-94-217)
Argued: April 2, 1996

Decided: January 31, 1997

Before WILKINSON, Chief Judge, RUSSELL, WIDENER, HALL,
MURNAGHAN, ERVIN, WILKINS, NIEMEYER, HAMILTON,
LUTTIG, WILLIAMS, MICHAEL, and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Reversed by published opinion. Judge Wilkins wrote the majority
opinion, in which Chief Judge Wilkinson and Judges Russell, Wid-
ener, Niemeyer, Hamilton, Luttig, Williams, and Motz joined. Chief
Judge Wilkinson wrote a concurring opinion, in which Judges Rus-
sell, Widener, and Hamilton joined. Judge Motz wrote a concurring
opinion. Senior Judge Phillips wrote a dissenting opinion, in which
Judges Hall, Murnaghan, Ervin, and Michael joined.

_________________________________________________________________

COUNSEL

ARGUED: Lance Bradford Leggitt, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Appellants. Sa'ad El-Amin, EL-AMIN & CRAWFORD, P.C., Rich-
mond, Virginia, for Appellee. ON BRIEF: James S. Gilmore, III,
Attorney General, Pamela A. Sargent, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Appellants. Beverly D. Crawford, EL-AMIN & CRAWFORD, P.C.,
Richmond, Virginia, for Appellee.

_________________________________________________________________

OPINION

WILKINS, Circuit Judge:

Rodney Winfield, an inmate at a Virginia state correctional facility,
brought this action pursuant to 42 U.S.C.A. § 1983 (West 1994),
alleging that prison officials violated his constitutional rights under

                     2
the Fifth, Eighth, and Fourteenth Amendments by failing to protect
him from another inmate, T. Gibson, who attacked Winfield with a
metal shank. Specifically, Winfield claimed that the prison officials
exhibited deliberate indifference to his safety by failing to restrain
Gibson prior to the attack and by declining to intervene after the
attack began. Appellants--Warden G. L. Bass and Correctional Offi-
cers Kelvin Carlyle, Anthony Clatterbuck, James Hicks, Galvin
Sizemore, Ronald Williams, and Donald Wilmouth--appeal the
denial by the district court of their claim that they are entitled to sum-
mary judgment on the basis of qualified immunity. Because we con-
clude that the district court erred in refusing to grant summary
judgment in favor of Appellants, we reverse.

I.

The evidence presented by Appellants in support of their motion
for summary judgment set forth the following facts. Winfield and
Gibson were confined at the Greensville Correctional Center. Late on
the evening of February 3, 1993, Winfield, Gibson, and a third inmate
were conversing in a cell when a dispute developed between Winfield
and Gibson. A scuffle ensued that spilled out of the cell and onto the
second-floor tier of the prison. Responding to this disturbance, at least
six officers proceeded to the second floor. The fray had ended by the
time they arrived, however, because the inmates immediately dis-
persed when they saw the officers advancing. When the supervising
officer, Lt. Hicks, directed that Gibson be removed from the tier, the
other prisoners protested, insisting that Gibson had done nothing
wrong. Fearing that an attempt to move Gibson under these circum-
stances might result in a major disturbance, Lt. Hicks ordered all
except two of the officers to withdraw from the tier to prevent the
confrontation from escalating. Only Officers Williams and Walker
remained outside Gibson's cell; neither officer was armed.

At this point, events began to unfold swiftly. Gibson suddenly and
without warning emerged from his cell wielding a homemade knife,
striking Officer Williams in the face with his fist, knocking him back
against the second-tier railing. Gibson then bolted into Winfield's cell
three doors away. Officer Walker immediately radioed for assistance.
After Officer Clatterbuck, who was now on the first floor, observed
Gibson running from his cell, he instantly yelled out a warning that

                     3
Gibson had a knife. Officer Clatterbuck and the other correctional
officers present then hurried to the nearby control booth to obtain
batons and returned to the second tier.

In the meantime, once inside Winfield's cell, Gibson began swing-
ing the shank, striking Winfield. Before the prison staff responded,
another inmate, John Scott, entered Winfield's cell and, although
stabbed by Gibson, was able to wrestle the shank away from him. The
entire incident happened very quickly; only ten seconds were esti-
mated to have elapsed between the assault on Officer Williams and
Scott's successful effort to disarm Gibson. Order was restored, and
Warden Bass was advised of the disturbance.

In response to the prison officials' motion for summary judgment,
Winfield presented his affidavit and documentation from his inmate
grievance proceedings. These materials did not take issue with the
substance of the factual assertions set forth in the prison officials'
affidavits. They, however, did provide three additional allegations
concerning these events that had not been included in the officers'
submission and that, for purposes of summary judgment, should be
taken as true.

First, Winfield asserted that approximately one hour before the
attack, Gibson, Winfield, and two other inmates had been drinking
homemade wine. Moreover, he maintained that Lt. Sizemore and
Officer Clatterbuck observed this behavior during their rounds. Gib-
son had a brief conversation with these officers at that time and appar-
ently convinced them not to confiscate the wine.

Second, Winfield contended that when the inmates dispersed fol-
lowing his initial altercation with Gibson, he returned to his cell and
pressed a buzzer that sent an electronic signal to a central location to
indicate that he wished to have the door to his cell closed and locked.
Despite several attempts by Winfield to have the door secured, the
officers controlling the mechanism did not respond.

Third, and most importantly for our purposes, Winfield claimed
that in order to enter the cell to extricate the shank from Gibson, Scott
found it necessary to push past two officers who stood looking on
throughout the attack. Further, Winfield asserted that neither of the

                     4
officers attempted to provide assistance to Scott while he struggled
with Gibson for the shank.

Based on this record, the district court denied the prison officials'
motion for summary judgment. With respect to their claim that there
were no genuine issues of material fact necessitating a trial and that
they were entitled to judgment as a matter of law, the district court
reasoned:

          After reviewing defendants' summary judgment motion and
          plaintiff's brief and affidavit opposing the motion, the Court
          finds that there are genuine issues of material fact in this
          case. Indeed, the Court finds that this case is peculiarly fact-
          specific and should thus proceed to trial on the merits.

J.A. 80. Turning to Appellants' argument that they were entitled to
qualified immunity, the district court opined:

          It is axiomatic that individuals incarcerated in correctional
          facilities are entitled to be kept secure, and that this right is
          protected by the Eighth Amendment, the Due Process
          Clause of the Fifth Amendment, and the Equal Protection
          Clause of the Fourteenth Amendment to the United States
          Constitution. Moreover, this fundamental right to security
          certainly was "clearly established" at the time of the assault
          on plaintiff. Furthermore, where it appears from the factual
          allegations that prison inmates are allowed liberal access to
          alcoholic beverages and dangerous weapons, corrections
          officers are bound to know that the safety of other inmates
          is at risk. . . . Thus, reasonable people in defendants' posi-
          tion[s] would have known that their permissive attitude[s]
          toward[ ] spirits and shanks would violate the inmates' right
          to continued safety and security. Accordingly, the Court
          rejects defendants' qualified immunity defense.

J.A. 81-82.

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

                     5
immunity. In addition, the district court certified for immediate inter-
locutory appeal the remainder of its summary judgment decision. See
28 U.S.C.A. § 1292(b) (West 1993). And, this court subsequently
entered an order permitting the permissive interlocutory appeal.

While the appeals were pending, the Supreme Court decided
Johnson v. Jones, 115 S. Ct. 2151 (1995), addressing the jurisdiction
of a federal appellate court to entertain an immediate appeal from a
refusal of a district court to grant summary judgment based upon
qualified immunity. Thereafter, relying on Johnson, a panel of this
court issued an opinion concluding that we lacked jurisdiction over
the appeal from the decision of the district court denying qualified
immunity to Appellants and that permission for the interlocutory
appeal of the remainder of the summary judgment order was granted
improvidently. Winfield v. Bass, 67 F.3d 529 (4th Cir. 1995). A
majority of the court subsequently voted to hear these appeals en
banc. Winfield v. Bass, Nos. 94-7346, 95-6422 (4th Cir. Jan. 5, 1996).

We first address our jurisdiction to entertain appeal number 94-
7346, which challenges the decision of the district court denying
Appellants' claim that they are entitled to qualified immunity. And,
concluding that we possess jurisdiction to do so, we turn to consider
whether the prison officials were entitled to qualified immunity.
Because our determination that the district court erred in refusing to
grant summary judgment to Appellants on the basis of qualified
immunity is dispositive of the questions presented to us, we need not
address appeal number 95-6422.

II.

Federal courts of appeals are granted jurisdiction to hear final deci-
sions of district courts pursuant to 28 U.S.C.A.§ 1291 (West 1993).
To the extent that an order of a district court rejecting a governmental
official's qualified immunity defense turns on a question of law, it is
a final decision within the meaning of § 1291 under the collateral
order doctrine recognized in Cohen v. Beneficial Industrial Loan
Corp., 337 U.S. 541 (1949), and therefore is subject to immediate
appeal. See Behrens v. Pelletier, 116 S. Ct. 834, 836 (1996); Johnson,
115 S. Ct. at 2155-56; Mitchell v. Forsyth , 472 U.S. 511, 524-30
(1985).

                     6
Prior to the decision of the Supreme Court in Johnson, this court
had ruled that it was appropriate for a court of appeals to review a dis-
trict court order rejecting a defense of qualified immunity on either
of two conceptually distinct bases. Turner v. Dammon, 848 F.2d 440,
443-44 (4th Cir. 1988). We permitted officials who were denied sum-
mary judgment on the basis of qualified immunity to argue that the
district court had erroneously refused to enter judgment in their favor
because the evidence presented was insufficient to create a triable
issue of fact or because the right that the governmental official had
purportedly violated was not clearly established. Id. The Johnson
Court, however, rejected our prior practice. See Johnson, 115 S. Ct.
at 2154-59. Although the Court reiterated the position that the courts
of appeals possess jurisdiction to consider appeals from decisions
rejecting a proffered qualified immunity defense to the extent that the
district court ruled that the legal right the official purportedly violated
was clearly established at the time the action was taken, it held that
to the extent that the order of the district court rested upon a determi-
nation that the evidence presented was sufficient to raise a genuine
issue of material fact necessitating trial, the order is not a final one
from which an immediate appeal may be taken. Id.

An articulation of this distinction is rather straightforward, but an
application of it may prove to be more difficult. See Woolfolk v.
Smith, 81 F.3d 741, 743 (8th Cir. 1996) (per curiam). The Supreme
Court directed that in determining our jurisdiction in this area, we
should consider the order entered by the district court to assess the
basis for its decision. See Johnson, 115 S. Ct. at 2159. As the Court
recognized, however, a district court does not invariably provide a
clear basis for its decisions or set forth fully the facts on which its res-
olution is grounded. See id. And, even in those circumstances in
which a district court does supply both, difficulty in assessing the
threshold jurisdictional issue will remain because the determination of
whether the law was clearly established at the requisite level of partic-
ularity is an especially fact-bound legal inquiry. See Prosser v. Ross,
70 F.3d 1005, 1006 (8th Cir. 1995); Reece v. Groose, 60 F.3d 487,
490 (8th Cir. 1995). Moreover, all denials of summary judgment, by
definition, involve a determination that the evidence is disputed suffi-
ciently to raise a genuine issue of material fact for trial. See Behrens,
116 S. Ct. at 842; Fed. R. Civ. P. 56. And, inherent in every determi-
nation that a governmental official is not entitled to qualified immu-

                     7
nity is the legal determination that viewed in the light most favorable
to the nonmoving party, the official's conduct violated a clearly estab-
lished constitutional or statutory right. See Anderson v. Creighton,
483 U.S. 635, 638-41 (1987). Accordingly, each decision of a district
court denying a governmental official's request for summary judg-
ment based upon qualified immunity will encompass a determination
that the facts are sufficiently controverted to warrant a trial and that
the legal right purportedly violated was clearly established. Obvi-
ously, if a determination by a district court that genuine issues of
material fact warrant trial were sufficient to prevent us from exercis-
ing jurisdiction over an appeal from an order rejecting a qualified
immunity defense, we would never have jurisdiction over such
appeals--a result plainly at odds with Mitchell and its progeny. See
Behrens, 116 S. Ct. at 842.

Consequently, we conclude that we possess jurisdiction to consider
an appeal from a decision of a district court rejecting a government
official's claim of entitlement to qualified immunity to the extent that
the official maintains that the official's conduct did not violate clearly
established law. Alternatively, to the extent that the appealing official
seeks to argue the insufficiency of the evidence to raise a genuine
issue of material fact--for example, that the evidence presented was
insufficient to support a conclusion that the official engaged in the
particular conduct alleged--we do not possess jurisdiction under
§ 1291 to consider the claim and, therefore, may not do so absent
some independent jurisdictional base. See Johnson, 115 S. Ct. at
2156-58; see also Shinault v. Cleveland County Bd. of County
Comm'rs, 82 F.3d 367, 370 (10th Cir. 1996) (recognizing that juris-
diction is controlled by the portion of the order from which appeal is
taken and by argument on appeal); Sanders v. Brundage, 60 F.3d 484,
486 (8th Cir. 1995) (explaining that issues raised on appeal control
jurisdiction). In other words, we possess no jurisdiction over a claim
that a plaintiff has not presented enough evidence to prove that the
plaintiff's version of the events actually occurred, but we have juris-
diction over a claim that there was no violation of clearly established
law accepting the facts as the district court viewed them.

Here, Appellants did assert in part that the evidence presented by
Winfield was insufficient to raise a genuine issue of material fact
necessitating a trial (i.e., that the evidence was insufficient to support

                     8
his factual allegations),1 and to that extent, we lack jurisdiction pursu-
ant to § 1291 to consider it. Nevertheless, in denying the prison offi-
cials' motion for summary judgment, the district court plainly ruled
that Winfield's legal right to personal security was clearly established.
Moreover, Appellants made clear in supplemental briefing after
Johnson was decided, and in oral argument before this en banc court,
that they press the legal issue of whether the undisputed facts disclose
that reasonable officers would have understood that their conduct vio-
lated Winfield's clearly established legal rights. See Miller v.
Schoenen, 75 F.3d 1305, 1308-09 (8th Cir. 1996). We therefore pos-
sess jurisdiction under § 1291 to consider this latter question and turn
now to address it.

III.

Government officials performing discretionary functions are enti-
tled to qualified immunity from liability for civil damages to the
extent that "their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In analyz-
ing an appeal from the rejection of a qualified immunity defense, our
first task is to identify the specific right that the plaintiff asserts was
infringed by the challenged conduct, recognizing that the right must
be defined at the appropriate level of particularity. Taylor v. Waters,
81 F.3d 429, 433 (4th Cir. 1996). We then consider whether, at the
time of the claimed violation, this right was clearly established and
"`whether a reasonable person in the official's position would have
known that his conduct would violate that right.'" Id. (quoting
Gordon v. Kidd, 971 F.2d 1087, 1093 (4th Cir. 1992)).

Although Winfield made general allegations that his rights under
the Fifth, Eighth, and Fourteenth Amendments were violated, the gist
_________________________________________________________________
1 This is hardly surprising given that the initial briefing was completed
before the Supreme Court decided Johnson and that the prior decisions
of this court permitted Appellants to raise such a claim. In addition, in
this instance an independent jurisdictional basis existed to permit our
consideration of the claim because we had granted permission for an
interlocutory appeal after the district court entered an order certifying the
remainder of the summary judgment order for immediate appeal.

                     9
of his complaint is that the prison officials were deliberately indiffer-
ent to the serious and specific risk of physical harm posed to him by
Gibson; thus, the prohibition imposed by the Cruel and Unusual Pun-
ishments Clause of the Eighth Amendment and applied to the states
through the Due Process Clause of the Fourteenth Amendment is the
broad constitutional right that Appellants purportedly infringed. See
Wilson v. Seiter, 501 U.S. 294, 296-97 (1991). 2

The district court ruled that the right to personal security protected
by the Eighth Amendment was well established at the time the events
underlying this appeal transpired. But, it is axiomatic that defining the
applicable right at that degree of abstraction is inappropriate.
Anderson, 483 U.S. at 639-40. Rather,

          the right the official is alleged to have violated must have
          been "clearly established" in a more particularized, and
          hence more relevant, sense: The contours of the right must
          be sufficiently clear that a reasonable official would under-
          stand that what he is doing violates that right. This is not to
          say that an official action is protected by qualified immunity
          unless the very action in question has previously been held
          unlawful, but it is to say that in the light of pre-existing law
          the unlawfulness must be apparent.

Id. at 640 (citation omitted); see Malley v. Briggs, 475 U.S. 335, 341
(1986) (Qualified immunity protects "all but the plainly incompetent
or those who knowingly violate the law."). Thus, we must inquire
whether the established contours of the Eighth Amendment were suf-
ficiently clear at the time of the attack to make it plain to reasonable
officers that their actions under these particular circumstances vio-
_________________________________________________________________
2 Because the specific constitutional standard applicable under the
Cruel and Unusual Punishments Clause of the Eighth Amendment sup-
plies an "explicit textual source of constitutional protection" for this
alleged infringement of Winfield's rights, we need not address a substan-
tive due process claim. Graham v. Connor, 490 U.S. 386, 395 & n.10
(1989). Further, because Appellants are not federal actors, our analysis
would be governed by the Fourteenth Amendment rather than the Due
Process Clause of the Fifth Amendment in any event. See U.S. Const.
amends. V, XIV.

                     10
lated Winfield's rights. In the context of this case, we ultimately are
called upon to decide whether it was clearly established in February
1993 that an unarmed prison official would be deliberately indifferent
to an inmate's need for safety if, during an attack by a prisoner armed
with a dangerous weapon upon another prisoner, the official instantly
mobilized to take control of the situation but failed to intervene
immediately. We conclude that it was not.

At the time these events occurred in 1993, it was clear that as a
component of their duty to provide inmates with humane conditions
of confinement, prison officials were required to"`take reasonable
measures to guarantee the safety of the inmates.'" Farmer v. Brennan,
114 S. Ct. 1970, 1976 (1994) (quoting Hudson v. Palmer, 468 U.S.
517, 526-27 (1984)). Further, it was well established that encom-
passed within that duty was a requirement that prison officials take
reasonable steps "`to protect prisoners from violence at the hands of
other prisoners.'" Id. (quoting Cortes-Quinones v. Jimenez-Nettleship,
842 F.2d 556, 558 (1st Cir.), cert. denied, 488 U.S. 823 (1988)); see
also Pressly v. Hutto, 816 F.2d 977, 979 (4th Cir. 1987). Knowledge
by prison officials of a sufficiently serious threat of physical harm
posed by other prisoners and deliberate indifference to such a risk
plainly amounted to a violation of the Eighth Amendment. See
Farmer, 114 S. Ct. at 1976-77 & n.2 (noting that Eighth Amendment
is violated by prison officials when two requirements met: (1) action
or inaction results in or creates a sufficiently serious risk of a depriva-
tion that objectively results in denial of the "minimal civilized mea-
sure of life's necessities" and (2) a "sufficiently culpable state of
mind"--here deliberate indifference) (internal quotation marks omit-
ted). Nevertheless, the Court has recognized:

          [P]rison officials who actually knew of a substantial risk to
          inmate health or safety may be found free from liability if
          they responded reasonably to the risk, even if the harm ulti-
          mately was not averted. A prison official's duty under the
          Eighth Amendment is to ensure reasonable safety, a stan-
          dard that incorporates due regard for prison officials' unen-
          viable task of keeping dangerous men in safe custody under
          humane conditions. Whether one puts it in terms of duty or
          deliberate indifference, prison officials who act reasonably

                     11
          cannot be found liable under the Cruel and Unusual Punish-
          ments Clause.

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

We are unable to say that the contours of the Eighth Amendment
right, considered at the appropriate level of particularity, were estab-
lished sufficiently such that a reasonable official would have under-
stood, at that time or indeed today, that Appellants' response to
Gibson's attack on Winfield was unreasonable. Certainly, this court
had made clear that under some circumstances officials may be liable
for completely failing to take any action to avert an attack by one
prisoner on another when they knew that a substantial risk of harm
existed. See, e.g., Gordon v. Leeke, 574 F.2d 1147, 1152 (4th Cir.),
cert. denied, 439 U.S. 970 (1978). However, the undisputed facts here
demonstrate3 that Appellants did not violate this clearly established
right of Winfield's. First, it is undisputed that none of the prison offi-
cials were aware that Gibson possessed a shank or posed a specific
risk to Winfield's safety prior to the moment Gibson emerged from
his cell.4 Thus, the correctional officers became aware of the risk of
_________________________________________________________________
3 Although summarily setting forth some of the facts, in judging
whether the officers' conduct violated clearly established law, the district
court apparently failed to recognize the materiality of other, undisputed
facts disclosed in the affidavits submitted by Appellants--particularly
those facts surrounding the actions taken by the various corrections offi-
cers in response to Gibson's attack on Winfield. Because the information
concerning the officers' actions that was revealed in Appellants' affida-
vits was not called into question by Winfield's opposing submission,
either directly or by an appropriate inference from the facts as asserted
by Winfield, we properly may consider these facts as undisputed for pur-
poses of addressing the legal issue presented. See Celotex Corp. v.
Catrett, 477 U.S. 317, 323-24 (1986).
4 The district court concluded that reasonable officials in Appellants'
positions would have known that permissive attitudes toward alcohol and
dangerous weapons would violate Winfield's clearly established right to
physical safety. This reasoning is misdirected. In assessing whether
Appellants are entitled to qualified immunity, the court must inquire
whether reasonable officers in Appellants' positions would have recog-
nized that their conduct violated Winfield's rights. See Anderson, 483

                    12
harm, at the earliest, when Gibson emerged from his cell and
assaulted Officer Williams. See Farmer, 114 S. Ct. at 1982 (recogniz-
ing that lack of knowledge of the risk is a complete defense to charge
of deliberate indifference to a substantial risk of harm). Moreover, it
is undisputed that upon seeing Gibson emerge from his cell, the
prison officials immediately mobilized to take control of the situation.
Officer Walker radioed for assistance instantly. Officer Clatterbuck
called out a warning, and all of the officers who had returned to the
first floor immediately ran to obtain batons and then proceeded back
to the second tier to provide aid in ending the attack. Accepting the
undisputed fact that the officers began immediate preparations to
safely intervene in the attack as soon as they became aware of the
risk, the question becomes whether the two unarmed correctional offi-
cers who were present when the attack began violated a clearly estab-
lished right of Winfield's to have the officials immediately intervene.

Winfield is unable to point to any decisions establishing that an
unarmed prison official exhibits deliberate indifference to an inmate's
reasonable need for safety, or acts unreasonably, by failing to inter-
vene immediately in an attack by one prisoner armed with a danger-
ous weapon on another. Indeed, all of the authority of which we are
aware leads to the conclusion that such heroic measures are not con-
stitutionally required. See Prosser, 70 F.3d at 1008 ("[P]rison guards
have no constitutional duty to intervene in the armed assault of one
inmate upon another when intervention would place the guards in
danger of physical harm."); MacKay v. Farnsworth, 48 F.3d 491, 493
(10th Cir. 1995) (Failure to immediately intervene in physical attack
by one prisoner, who was wielding a shank, upon another held not to
_________________________________________________________________
U.S. at 640. Thus, the pertinent question is whether the law was clearly
established that a failure by prison officials to confiscate immediately
alcoholic beverages possessed by inmates (Winfield concedes that no
Appellant had any knowledge concerning possession of weapons) consti-
tuted an unreasonable response to a substantial risk to inmate safety.
Winfield points to no decisions even arguably supporting such a conclu-
sion, and our research has failed to disclose any. We hold that to the
extent that the district court based its decision on a failure to confiscate
the wine, Appellants were entitled to summary judgment on the basis of
qualified immunity.

                    13
amount to deliberate indifference in part because prison officials had
called for backup.); Arnold v. Jones, 891 F.2d 1370, 1372 (8th Cir.
1989) ("[U]narmed prison officials have no duty as a matter of law
to physically intervene in a prison fight which may cause them seri-
ous injury or worsen the situation . . . ."). The correctional officers
violated no clearly established right of Winfield's because they were
not required to risk serious bodily harm by entering, unarmed, into a
fray with an armed and violent assailant during the short period
before assistance arrived. The undisputed facts demonstrate that
Appellants' response to the risk to Winfield's safety was reasonable.
No clearly established law having been violated, the prison officials
were entitled to qualified immunity.5

IV.

It appears that the principal source of disagreement offered by the
dissent concerns our approach to determining the factual basis to
which we must look in resolving the legal question over which we
possess jurisdiction--perhaps the most difficult aspect of our review
of denials of qualified immunity in an interlocutory appeal and one
that has not yet been resolved conclusively by the Supreme Court. See
Johnson, 115 S. Ct. at 2159 (noting that question of how an appellate
court should determine "what set of facts to assume when it answers
the purely legal question about `clearly established' law" presents a
serious problem).

The Johnson Court recognized that it will often be possible for an
appellate court to utilize the facts that were assumed by the district
court in denying the motion for summary judgment. Id. But, the Court
also acknowledged that in some instances the district court will fail
fully to set forth the facts on which its decision is based. Id. In that
circumstance, the Court explained, "a court of appeals may have to
undertake a cumbersome review of the record to determine what facts
the district court, in the light most favorable to the nonmoving party,
_________________________________________________________________
5 Since the corrections officers who were alleged to have been directly
involved in the events cannot be found to have violated any clearly estab-
lished right of Winfield's, Warden Bass, who was not present and whose
only connection to the incident was his supervisory role over the officers,
cannot be held liable.

                    14
likely assumed." Id.; Behrens, 116 S. Ct. at 842. In our view, when
a district court fails fully to set forth the facts supporting its legal con-
clusion that a government official is not entitled to qualified immu-
nity, the court of appeals must review the materials submitted to the
district court to determine what the record, viewed in the light most
favorable to the nonmoving party, discloses in order to have a factual
basis upon which to base its legal conclusion.

The dissent, however, opines that in directing courts of appeals to
determine the facts that district courts "likely assumed," the Supreme
Court indicated that our task is not to attempt to divine what the evi-
dence viewed in the light most favorable to the plaintiff actually
showed. Rather, the dissent suggests that we should construct from
the record a set of facts that supports the legal conclusion reached by
the district court. See infra pp. 31-33. We cannot agree.

The rationale underlying the Johnson decision was that "precedent,
fidelity to statute, and underlying policies," namely "considerations of
delay, comparative expertise of trial and appellate courts, and wise
use of appellate resources, argue[d] in favor of limiting interlocutory
appeals of `qualified immunity' matters to cases presenting [neat]
abstract issues of law." Johnson, 115 S. Ct. at 2158. Essentially, the
Court concluded that there was little to be gained, incrementally, in
terms of providing additional protection to officials and much to be
lost in terms of appellate judicial resources by permitting interlocu-
tory appeals maintaining that a district court had erred in concluding
that the evidence presented was sufficient to raise a genuine issue of
material fact warranting trial. See id. at 2156-59. Accepting as the
Johnson Court did, however, that a "cumbersome review" of the
record must be undertaken when the district court fails fully to set
forth the facts upon which its decision was based, the concerns under-
lying the holding in Johnson do not counsel in favor of a conclusion
that our legal determination should be based upon some mythical set
of facts (i.e., a set of facts other than those shown by the evidence
actually viewed in the light most favorable to the nonmoving party)
that may or may not actually have been relied upon by the district
court. Instead, those concerns indicate that the legal decision should
be based upon a proper view of the evidence presented, taken in the
light most favorable to the nonmoving party. Indeed, the concerns of
avoiding unnecessary delay and wise use of judicial resources that led

                      15
the Johnson Court to its principal holding--that courts of appeals pos-
sess jurisdiction to decide only the abstract legal issues on interlocu-
tory review--persuade us that in determining what facts the district
court "likely assumed," we must determine what the evidence actually
shows when viewed in the light most favorable to the nonmoving
party.

Moreover, the Johnson Court indicated that this was the proper
course: In discussing the necessity of determining the factual basis
upon which our legal ruling will be premised when a district court
fails fully to set forth the factual basis for its legal conclusion, the
Johnson Court noted that "a rule that occasionally requires a detailed
evidence-based review of the record is still, from a practical point of
view, more manageable than" a rule requiring courts of appeals to
routinely conduct the same type of review. Id. at 2159. Thus, the
Court plainly envisioned that on those infrequent occasions when a
district court does not supply the factual basis for its decision, we
would be required to undertake the type of de novo review that gener-
ally would be prohibited.6

Furthermore, the dissent's suggestion that the correct view of the
factual record is not controlling in determining what the district court
"likely assumed," but that instead we should attempt to construct a set
of facts supporting the legal decision of the district court, presents an
absurd paradox. Employing the dissent's mode of analysis, we would
be required to affirm an obviously incorrect legal conclusion, based
on "assumed" and equally incorrect facts, simply because we would
be required to "assume" that the district court "likely" took an incor-
rect view of the facts in order to support the incorrect legal conclusion
it reached. And, this result, the dissent maintains, is compelled by the
Johnson decision--an opinion grounded in concerns of efficiency and
judicial economy. In our view, the position advocated by the dissent
surely cannot be the one the Supreme Court intended.
_________________________________________________________________
6 That is not to say that when the factual basis for the district court
decision denying qualified immunity is unclear, courts of appeals have
full jurisdiction to consider an appeal of a factual nature. Instead, consid-
eration of the factual record must be limited to determining the appropri-
ate factual basis for resolving the purely legal issue presented. We
recognize, of course, that in practice this distinction may be more theo-
retical than practical.

                    16
Finally, none of the other courts of appeals that have addressed
what the Supreme Court meant when it instructed that we must deter-
mine what the district court "likely assumed" have taken the approach
urged by the dissent. See Cottrell v. Caldwell , 85 F.3d 1480, 1491
(11th Cir. 1996) (reviewing record to determine whether genuine
issues of material fact existed when district court failed to set forth
the factual basis for its legal ruling); Heidemann v. Rother, 84 F.3d
1021, 1027 & n.4 (8th Cir. 1996) (concluding that a determination of
what district court "likely assumed" requires court of appeals to
undertake usual, de novo review of record to determine what evi-
dence, viewed in light most favorable to the nonmoving party,
showed).

Similarly, a question of the proper factual basis for our resolution
of the purely legal question over which we possess jurisdiction may
arise when a district court bases its decision on stated facts, but other,
undisputed, material facts are present that dictate the conclusion that
a governmental official is entitled to qualified immunity. For the same
reasons that support our conclusion that this court must look to the
actual evidence presented viewed in the light most favorable to the
nonmoving party when a district court fails to supply the factual basis
for its legal decision, we should not ignore other, undisputed, facts in
rendering our decision on the legal question. Taking account of an
undisputed fact in rendering a legal conclusion neither does violence
to "Cohen's conceptual theory of appealability" nor involves this
court in the type of weighing of the record that the Johnson Court
found unacceptable. Johnson, 115 S. Ct. at 2156-57. Further, a district
court does not possess any institutional advantage in the consideration
of an undisputed fact, and the acceptance of such a fact does not con-
sume significant appellate resources. See id. at 2157-58. On the other
hand, the failure to acknowledge an undisputed fact could result in
considerable delay and inefficiency--for example, if the failure to do
so results in the denial of qualified immunity in circumstances when
the consideration of the undisputed fact would result in an official's
entitlement to it.

In sum, we conclude that when a district court fails to set forth
fully the factual basis upon which its legal conclusion that a govern-
mental official is not entitled to summary judgment on the basis of
qualified immunity, this court reviews the evidence properly before

                     17
the district court for purposes of considering the summary judgment
question. It then determines what the evidence, viewed in the light
most favorable to the nonmoving party, demonstrated. This is the fac-
tual basis that the district court "likely assumed" in rendering its legal
conclusion and is the factual basis upon which this court must render
its decision on the purely legal issues presented in the appeal. Further-
more, when undisputed material facts are present that the district
court did not consider in ruling on the qualified immunity issue, this
court need not ignore those facts in rendering its legal decision.

REVERSED

WILKINSON, Chief Judge, concurring:

My dissenting colleagues believe they have found in Johnson v.
Jones, 115 S. Ct. 2151 (1995), a decision that will doom the defense
of qualified immunity once and for all. Hailing this development, they
do not let years of qualified immunity jurisprudence, the actual text
of Johnson, or the Supreme Court's explanation of Johnson in
Behrens v. Pelletier, 116 S. Ct. 834 (1996), stand in their way. Writ-
ing in this vein, the dissent reads Johnson to essentially destroy inter-
locutory appeals under Mitchell v. Forsyth, 472 U.S. 511 (1985). The
majority opinion rightly regards Johnson as an important but limited
decision which represents neither the termination of meaningful inter-
locutory review nor the demise of the qualified immunity defense.
The dissent, by contrast, would enfeeble the law enforcement function
specifically -- and public decision-making generally -- throughout
this circuit.

I.

The dissenting opinion has a technical tenor, but no one should
mistake its import. As the dissent would have it, Johnson virtually
abolished interlocutory appeals of denials of qualified immunity. In
actually applying Johnson, the dissent suggests that the only issue still
subject to interlocutory appeal is whether the legal right allegedly vio-
lated was "clearly established." Finding that Winfield had a "well-
settled" right as a prisoner to be "protected against physical harm at
the hands of fellow inmates resulting from the deliberate or callous

                     18
indifference of prison officials to specific known risks of such harm,"
the dissent concludes that our review under Johnson is complete.

This marks an ominous development for many public decision-
makers. Although the dissent is indefinite on the point, the only way
this judgment can be affirmed is on the belief that the mere allegation
of a clearly established abstract right suffices for a case to go to trial.
Whether the abstract legal right asserted by the plaintiff is "clearly
established" will rarely be the controversy in a denial of a qualified
immunity defense. The primary issue will almost always be whether
the given facts demonstrate that the right in question has been vio-
lated. The instant case illustrates the point. No one disputes the exis-
tence of the Eighth Amendment right alleged; the appeal turns instead
on whether undisputed facts disclose a violation of that right. If this
central question, whether given facts show a violation of established
law, is not subject to immediate appeal, a public official's right to
appeal denials of qualified immunity will be of less than little worth.

Even without regard to any other Supreme Court decision, Johnson
cannot be read as a rejection of interlocutory review and a reversal of
Mitchell v. Forsyth. Indeed, the Court's holding in Johnson was
premised on the fact that the "evidence sufficiency" question before
it was distinguishable from the qualified immunity issues subject to
interlocutory appeal under Mitchell. Johnson, 115 S. Ct. at 2156-58.
Furthermore, the plain language of Johnson does not support the
destruction of interlocutory review proposed by the dissent. The
Johnson Court reaffirmed Mitchell's ruling that an order denying a
defendant's motion for summary judgment is immediately appealable:

          where (1) the defendant [is] a public official asserting a
          defense of "qualified immunity," and (2) the issue appealed
          concern[s], not which facts the parties might be able to
          prove, but, rather, whether or not certain given facts show[ ]
          a violation of "clearly established" law.

Johnson, 115 S. Ct. at 2155. The appellate review authorized under
Mitchell and Johnson thus involves two inquiries: (1) what constitutes
"clearly established" law, and (2) whether"given facts" demonstrate
a violation of such law. See McMillian v. Johnson, 88 F.3d 1554,
1562 (11th Cir. 1996); Shinault v. Cleveland County Board of County

                     19
Commissioners, 82 F.3d 367, 370 (10th Cir. 1996). And if this were
insufficiently clear, the Court repeated itself, stating that "the Mitchell
appeal involved the application of `clearly established' law to a given
(for appellate purposes undisputed) set of facts," and finding that a
district court's conclusion "that a given set of facts violates clearly
established law" is a "reviewable determination." Johnson, 115 S. Ct.
at 2156, 2159 (emphasis added).

The flaw in the dissent's interpretation of Johnson is evident from
its conclusion that the law has taken flight from the facts. The dissent
concludes that Winfield's Eighth Amendment right is"well-settled"
solely by examining Fourth Circuit precedent. But if the resolution of
Mitchell appeals requires no more than the incantation of abstract and
settled legal propositions, then Johnson's explanation as to how
appellate courts are to identify which facts are"given" for purposes
of review becomes meaningless. See Johnson, 115 S. Ct. at 2159. The
relevance of any legal proposition will not be clear until the facts to
which the proposition is applied become apparent. Inescapably, we
must say what the given facts are before we can determine "whether
or not certain given facts showed a violation of`clearly established'
law." Id. at 2155.

Despite finding the facts irrelevant to its own analysis of the instant
case, the dissent next discusses at great length how we are to identify
the "given" facts for purposes of interlocutory review under Johnson,
at least in those cases where the district court failed to set forth the
facts on which it relied.1 In such cases, Johnson contemplates that
appellate courts may be forced to engage in "a detailed evidence-
based review of the record." Id. at 2159. Acknowledging this, the dis-
sent insists that we may examine the record in such cases, but only
insofar as our review identifies facts which support the district court's
decision:

          The best evidence, after all, of what a district court has
          "likely assumed" as its predicate facts is not what the court
          of appeals believes it should have assumed, but the district
_________________________________________________________________
1 The dissent thus finally addresses the facts of this case, but only after
conceding, solely for purposes of argument, that the court confronts a
reviewable issue.

                     20
          court's legal determination that on the facts it did assume
          (rightly or wrongly) a violation was shown.

Following the dissent's example, we apparently are to comb the
record for any scrap of evidence that could justify the trial court's
denial of immunity while deliberately ignoring undisputed facts
which suggest a contrary conclusion. This is not"review" but a com-
plete waste of time. District courts will simply cease explaining the
factual basis for their denials of qualified immunity, and appellate
courts will be left to rubber stamp their conclusions. We might as well
abolish Mitchell appeals altogether as they will become precisely the
"unwise use of appellate courts' time" that Johnson was trying to
avoid. Johnson, 115 S. Ct. at 2158.

The dissent thus stands the interlocutory review process on its
head. Instead of looking at the facts to determine whether clearly
established law was violated, we are to assume that the law was vio-
lated and construct a set of "given" facts to support that conclusion.
Again, the appellate role as envisioned by the dissent is not to review
district court decisions but to rationalize them. The Court in Johnson
said nothing of the sort. When a district court has not adequately set
out the factual basis for its decision, our review of the record of
necessity must be an independent one, and it is incredible to suggest
that we should do anything in undertaking it other than apply appro-
priate summary judgment standards.

II.

The infirmity of the dissent's analysis of Johnson is all the more
evident when considered in light of prior and subsequent precedent.
The dissent reads Johnson in a virtual time warp, completely disre-
garding the teaching of Anderson v. Creighton , 483 U.S. 635 (1987),
and relegating Behrens v. Pelletier, 116 S. Ct. 834 (1996), the
Supreme Court's single explanation of Johnson , to a footnote.

A.

The dissent's suggested resolution of this case is a veritable replica
of the Eighth Circuit decision rejected by the Supreme Court in

                     21
Anderson. The dissent states that the right to be "protected against
physical harm at the hands of fellow inmates resulting from the delib-
erate or callous indifference of prison officials to specific known risks
of such harm" was "well-settled" in this circuit at the time Winfield
was assaulted. Having made this observation, the dissent finds our
review to be complete, without considering whether the undisputed
facts entitle the defendants to qualified immunity. Similarly, the
Eighth Circuit in Anderson considered the generic right "to be free
from warrantless searches of one's home unless the searching officers
have probable cause and there are exigent circumstances." Anderson,
483 U.S. at 640. Concluding that this right was"clearly established,"
the Eighth Circuit refused to consider whether Anderson's specific
conduct violated that right and denied him qualified immunity. Id. at
640-41.

The Supreme Court, however, flatly rejected the notion that a court
can address the issue of qualified immunity without reference to the
given facts of a particular case. The Court held that the right the offi-
cial is alleged to have violated cannot be considered in the abstract
but "must have been `clearly established' in a more particularized,
and hence more relevant, sense: The contours of the right must be suf-
ficiently clear that a reasonable official would understand that what
he is doing violates that right." Id. at 640. The Court thus noted, "It
simply does not follow immediately from the conclusion that it was
fairly established that warrantless searches not supported by probable
cause and exigent circumstances violate the Fourth Amendment that
Anderson's search was objectively legally unreasonable." Id. at 641.
The Court recognized that if the question of qualified immunity could
be resolved without regard to given facts, "[p]laintiffs would be able
to convert the rule of qualified immunity that our cases plainly estab-
lish into a rule of virtually unqualified liability simply by alleging
violation of extremely abstract rights. Harlow [v. Fitzgerald, 457 U.S.
800 (1982),] would be transformed from a guarantee of immunity into
a rule of pleading." Id. at 639.

The dissent would hold that Johnson accomplished the very trans-
formation that Anderson forbade. Seeking to cut off interlocutory
review, the dissent phrases the right at issue in terms so general that
there will always be a sufficient allegation of a violation of clearly
established law. Every prisoner plaintiff can plead an Eighth Amend-

                     22
ment right to protection against fellow inmates. If such an abstract
iteration of the right suffices to conclude interlocutory review in favor
of the plaintiff, every district court denial of qualified immunity will
automatically lead to trial. The dissent thus precludes the possibility
that undisputed facts in the particular case will justify an award of
immunity.

B.

The dissent pays no more heed to Supreme Court caselaw subse-
quent to Johnson than it does to Supreme Court precedent prior to
Johnson. Behrens, the Supreme Court's single explication of Johnson
to date, is relegated to a footnote, perhaps because it represents an
apparently vain attempt on the part of the Supreme Court to foreclose
precisely the sort of over-reading of Johnson proposed by the dissent.
The main holding of Behrens, after all, is that public officers entitled
to claim qualified immunity may bring not one but two interlocutory
appeals on the question of immunity, 116 S. Ct. at 839, hardly the
action of a Court intent on what the dissent has termed a "dramatic
curtailment" of such appeals.

Even where contested facts exist, Behrens indicates that purely
legal issues remain which an appellate court can consider while
respecting the role reserved for trial courts by Johnson. "Denial of
summary judgment often includes a determination that there are con-
troverted issues of material fact, and Johnson surely does not mean
that every such denial of summary judgment is nonappealable."
Behrens, 116 S. Ct. at 842. When reviewing an interlocutory appeal
pursuant to Mitchell, Johnson instructs us not to reconsider a district
court's summary judgment order "insofar as that order determines
whether or not the pretrial record sets forth a`genuine' issue of fact
for trial." Johnson, 115 S. Ct. at 2159. We are not to second-guess a
trial court on questions of "evidence sufficiency." See id. at 2156. No
question of sufficiency is raised, however, when an appellate court
finds that the defendant is entitled to qualified immunity even on the
plaintiff's version of the facts. As the Seventh Circuit has noted, "If
there is no possible resolution of the [factual] disagreement that
would save the plaintiff's case from the defense of immunity, the
appellate court will not have to resolve any factual disagreements . . .

                     23
in order to determine whether the defense is good." Anderson v.
Romero, 72 F.3d 518, 520-21 (7th Cir. 1995).

Similarly, where the material facts are undisputed, an appellate
court's determination that the defendant officers are entitled to quali-
fied immunity does not require any reweighing of the evidence.
Appellate courts may determine whether genuinely disputed facts are
material without trespassing on the trial court's domain. Materiality
"is only a criterion for categorizing factual disputes . . . not a criterion
for evaluating the evidentiary underpinnings of those disputes."
Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Unlike the
issue of genuineness, materiality therefore does not consider the suffi-
ciency of evidence supporting a fact but only a fact's legal relevance,
whether it "might affect the outcome of the suit under the governing
law." Id. Given undisputed material facts, the only remaining issue is
the "purely legal determination" whether the defendant's actions were
objectively reasonable, in which case "Johnson does not preclude
appellate jurisdiction." Lennon v. Miller, 66 F.3d 416, 422 (2d Cir.
1995).

In the instant case, the majority opinion thus appropriately finds
that the defendants were entitled to qualified immunity based on the
undisputed material facts. Most notably, the court finds that Gibson
had to get by the unarmed guard Williams in order to attack Winfield.
It is inconceivable that the defendants were deliberately indifferent to
a situation which placed one of themselves at risk, a risk that in fact
resulted in injury to Williams.2

Other circuits have declined to embrace the dissent's constriction
of the appellate role in enforcing qualified immunity. In Prosser v.
Ross, 70 F.3d 1005 (8th Cir. 1995), for example, the Eighth Circuit
reversed a denial of qualified immunity in a case that is the virtual
_________________________________________________________________
2 The dissenting opinion similarly misconstrues Gooden v. Howard
County, 954 F.2d 960 (4th Cir. 1992) (en banc), to the extent that it
implies that Gooden is inconsistent with Johnson and Behrens. As in this
case, the grant of summary judgment in Gooden rested on undisputed
facts regarding what the officers perceived at the time of the incident and
the objective reasonableness of their actions in light of those undisputed
perceptions. See id. at 964-66.

                     24
mirror image of this one. Prosser, an inmate, complained that Ross,
a prison guard, had failed to prevent or respond properly to an attack
on him by a fellow inmate. The district court stated, without explana-
tion, that there were issues of material fact which precluded granting
summary judgment. Forced to review the record itself, the Eighth Cir-
cuit held that it had jurisdiction under Johnson to consider Ross'
interlocutory appeal because "the facts required to determine whether
Ross is entitled to qualified immunity are not genuinely in dispute."
Id. at 1006-07. Based on the facts that the assailant was armed, that
the armed attack was unexpected, that Ross was alone, and that he
immediately sought help, the court found that Ross had responded
reasonably and could not have been expected to prevent the assault.

Other circuits have taken a similar approach to Mitchell appeals
and have not hesitated to correct the erroneous application of immu-
nity doctrine where the material facts were undisputed or where the
defendant was entitled to immunity even on the plaintiff's account of
events. See Foy v. Holston, 94 F.3d 1528, 1531 n.3 (11th Cir. 1996)
(awarding qualified immunity and finding that Johnson allows imme-
diate review to consider "whether, taking the facts in the light most
favorable to the plaintiffs, clearly established federal rights were vio-
lated"); Osolinski v. Kane, 92 F.3d 934, 936 (9th Cir. 1996) (awarding
immunity and finding that Johnson allows immediate review when
the appeal concerns "whether certain given facts show a violation of
clearly established law"); Cantu v. Rocha, 77 F.3d 795, 802 (5th Cir.
1996) (awarding immunity and finding that Johnson allows immedi-
ate review when the appeal concerns only "whether an official's con-
duct was objectively reasonable in light of clearly established law" in
light of "a given . . . set of facts"); Anderson v. Romero, 72 F.3d 518,
520 (7th Cir. 1995) (partially awarding qualified immunity and find-
ing that Johnson allows immediate review"[i]f there is no possible
resolution of the [factual] disagreement that would save the plaintiff's
case from the defense of immunity"); Lennon v. Miller, 66 F.3d 416,
422 (2d Cir. 1995) (awarding immunity and finding that Johnson
allows immediate review where an appeal "poses only a legal ques-
tion about the objective reasonableness of the defendants' actions
under undisputed facts"); Sanderfer v. Nichols, 62 F.3d 151, 153 n.2
(6th Cir. 1995) (awarding immunity and finding that Johnson allows
immediate review because "the plaintiff's version of events, regard-

                    25
less of the sufficiency of the supporting evidence, does not state a
claim for [ ] a [constitutional] violation").

All of these circuit decisions followed Johnson . All of them
involved interlocutory appeals, and all resulted in reversal of a district
court's denial of qualified immunity. The dissent's report of the death
of interlocutory review would thus appear to be greatly exaggerated,
not to mention premature. As these cases illustrate, to adopt the dis-
sent's position would place the Fourth virtually alone among the cir-
cuits in refusing to consider whether given facts constitute a violation
of clearly established law.

III.

Only by ignoring the importance of interlocutory appeals to the
vitality of qualified immunity can the dissent read Johnson as a dra-
matic curtailment of Mitchell. The dissent tells us that although its
interpretation of Johnson "will sometimes force to trial public offi-
cials who, under a correct application of qualified immunity doctrine
should not be put to trial," this concern "simply must yield to `com-
peting considerations' of `delay, comparative expertise of trial and
appellate courts, and wise use of appellate resources.'" (Quoting
Johnson, 115 S. Ct. at 2158.) Application of legal doctrine to given
facts, however, is an appellate court's area of comparative expertise.
And Mitchell has already determined that interlocutory review to cor-
rect misapplication of immunity principles does constitute a "wise use
of appellate resources." Mitchell likewise indicated that any delay
caused by interlocutory review is necessary to give meaning to the
Supreme Court's constant admonition that "insubstantial claims
should not proceed to trial." Harlow, 457 U.S. at 816; see also
Behrens, 116 S. Ct. at 838; Hunter v. Bryant , 502 U.S. 224, 227
(1991); Burns v. Reed, 500 U.S. 478, 494 n.8 (1991); Anderson, 483
U.S. at 640 n.2; Malley v. Briggs, 475 U.S. 335, 341 (1986); Mitchell,
472 U.S. at 526; Davis v. Scherer, 468 U.S. 183, 195 (1984); Butz v.
Economou, 438 U.S. 478, 507-08 (1978).

Even the dissent acknowledges that there is a cost to permitting
trial of meritless suits against public officers, but it insists that such
costs must "simply be tolerated." The dissent trivializes the signifi-
cance of interlocutory appeals, assuring us, "When occasional error

                      26
does occur, its effect--of forcing unwarranted trial--is exhausted
there; the error is not immunized and may yet be corrected at trial or
on later appeal, with liability thereby avoided." Mitchell held the very
opposite: that qualified immunity "is an immunity from suit rather
than a mere defense to liability; and like an absolute immunity, it is
effectively lost if a case is erroneously permitted to go to trial."
Mitchell, 472 U.S. at 526 (emphasis added); accord Swint v. Cham-
bers County Commission, 115 S. Ct. 1203, 1208 (1995); Digital
Equipment Corp. v. Desktop Direct, Inc., 114 S. Ct. 1992, 1997
(1994); Puerto Rico Aqueduct and Sewer Authority v. Metcalf &
Eddy, Inc., 506 U.S. 139, 144 (1993); Wyatt v. Cole, 504 U.S. 158,
166 (1992); Hunter, 502 U.S. at 227; Siegert v. Gilley, 500 U.S. 226,
232-33 (1991); Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 499-500
(1989); Van Cauwenberghe v. Biard, 486 U.S. 517, 521 (1988). The
dissent assures us that post-trial appellate review can cure any defects,
but Mitchell authorized interlocutory appeals precisely because "[a]
district court's decision [to deny qualified immunity] is effectively
unreviewable on appeal from a final judgment." Mitchell, 472 U.S. at
526.

In thus construing Johnson to eviscerate interlocutory appeals, the
dissent engages in wholesale substitution of its own views for the
insistent teaching of Supreme Court precedent. The dissent simply
projects onto Johnson its own balance of the competing interests at
stake. Finding official accountability to the federal judiciary to be of
much greater importance than the societal costs of meritless lawsuits,
the dissent treats qualified immunity as nothing more than a "mere
defense to liability." Having done so, it places little significance on
interlocutory appeals and readily concludes that"competing consider-
ations" support the virtual elimination of such appeals. Seeking to
make rejections of immunity defenses unreviewable, the dissenting
opinion simply ignores the fact that the Supreme Court has long since
spoken on the balance between the relevant interests, and that we are
not free to revisit the question. The dissent's position might have been
appropriate for an advocate arguing Mitchell, but at this late date it
is only an argument for overruling Mitchell, which the Supreme Court
has not seen fit to do.

IV.

Interlocutory appeals of qualified immunity denials serve several
critical functions. They draw the line of demarcation between the

                     27
objectively reasonable exercise of official discretion on the one hand
and the violation of clearly established rights on the other. By requir-
ing review prior to trial, they also constitute a check on the reflexive
resort to trials that would eventually erode the exercise of official dis-
cretion and nullify the qualified immunity defense.

Discretion is thus at the core of what the interlocutory appeal pro-
tects. Not absolute discretion -- but limited, qualified latitude in mak-
ing judgments. If we are to have few interlocutory appeals and many
trials, the drastic expansion of litigation will mean the equally drastic
constriction of discretion. Yet every occupation-- be it teacher, par-
ent, corporate executive, or county clerk -- demands the exercise of
channeled discretion. Law enforcement is no exception. Officers
"routinely make close decisions in the exercise of the broad authority
that necessarily is delegated to them." Davis , 468 U.S. at 196. Deci-
sions involving public order "are more likely than not to arise in an
atmosphere of confusion, ambiguity, and swiftly moving events,"
Scheuer v. Rhodes, 416 U.S. 232, 246-47 (1974), and involve the
application of legal standards that are notoriously imprecise, such as
"probable cause" and "excessive force." Officers are not jurists; they
"must often act swiftly and firmly at the risk that action deferred will
be futile or constitute a virtual abdication of office." Id. at 246. Like
many executive officials, law enforcement officers thus are "called
upon to act under circumstances where judgments are tentative and an
unambiguously optimal course of action can be ascertained only in
retrospect." Butz, 438 U.S. at 500 n.28.

Under such conditions, even an official of the highest integrity and
competence will occasionally err. Without the protection of discretion
afforded by qualified immunity and interlocutory review, every mis-
take "`expos[es] such [officers] as have been honestly mistaken to suit
by anyone who has suffered from their errors.'" Barr v. Matteo, 360
U.S. 564, 571 (1959) (quoting Gregoire v. Biddle , 177 F.2d 579, 581
(2d Cir. 1949)). Public officers are irresistible targets for meritless
lawsuits. See Butz, 438 U.S. at 509-10; Imbler v. Pachtman, 424 U.S.
409, 425 (1976). From detention through incarceration, nearly every
type of law enforcement action is almost certain to invoke the ire of
its subject, providing a constant stream of potential plaintiffs with
recurring motives to sue. Onto this pyre of litigation, the dissent pours

                     28
yet more fuel, discarding one of the few deterrents to litigious action
that still exists.

The legal order that the dissent would construct risks rendering law
enforcement officers so fearful of lawsuits that they will simply cease
protecting the public. Cf. Wood v. Strickland , 420 U.S. 308, 319-20
(1975) (threat of liability will "undoubtedly deter even the most con-
scientious school decisionmaker from exercising his judgment . . . in
a manner best serving the long-term interest of the school and the stu-
dents"). After all, the safest course is not to exercise one's discretion,
but not to act at all. Doing nothing may not enforce the law or protect
the peace, but it most assuredly will minimize an officer's chances of
becoming a section 1983 defendant.3

If interlocutory review of immunity denials is no longer possible,
then extended discovery and trials of law enforcement actions will
become a way of life. Yet litigation is decidedly not what law
enforcement officers do for a living. Time in court is time off the
street. Whatever incentives may attract persons to the law enforce-
ment profession cannot include the prospect that every step one takes
may turn into a policeman's nightmare and a litigator's dream.

Perhaps fearing the arbitrary exercise of discretion, the dissent pur-
sues an ideal that will never exist, one where frequent trials of police-
citizen encounters will sustain every instance of proper official con-
duct, while excising with surgical precision every mistake. This
vision exists on an ever-receding horizon. The rule of law will not
flourish without the aid of law enforcement, and, until men become
angels, their discretionary actions will be accompanied by mistakes.
But authority in the position of continually having to justify itself will
not be able to assert itself. If the dissenting position becomes the law,
the search for the perfect will have become the lasting enemy of the
good.

Judges Russell, Widener, and Hamilton authorize me to say that
they join in this opinion.
_________________________________________________________________
3 As the circumstances of this case suggest, inaction is not an ironclad
defense against suit, but it will remain an official's most secure protec-
tion against constant trials in the absence of interlocutory review.

                     29
DIANA GRIBBON MOTZ, Circuit Judge, concurring:

I concur in the judgment and in Judge Wilkins' careful and narrow
opinion for the majority of the court. Of course, I recognize that the
court's holding is, as Judge Phillips' thoughtful dissent well demon-
strates, in some tension with the principles set forth in Behrens v.
Pelletier, 116 S. Ct. 834 (1936) and Johnson v. Jones, 115 S.Ct. 2151
(1995). However, I cannot conclude that when, as here, a district
court does not adequately set forth the facts it finds in dispute, the
Supreme Court intended that we determine the facts the district court
"likely assumed" other than by examining, in the light most favorable
to the plaintiff, the factual record before the district court and then
determining if those facts set forth a violation of clearly established
law.

I write separately simply to note that in this case we have no occa-
sion to reach the question of whether we are also at liberty to follow
this approach when the district court has adequately set forth the facts
it finds in dispute. That is, in this more usual case, do we have juris-
diction to go beyond the district court's holding and plumb the sum-
mary judgment record to make our own assessment as to what are the
material facts, taken in the best light for the plaintiff, or are we lim-
ited to the facts relied upon by the district court. Behrens and Johnson
would seem to hold that we must accept the facts as relied upon by
the district court. However, resolution of that question must await
another day.

PHILLIPS, Senior Circuit Judge, dissenting:

I differ fundamentally with the en banc majority's apparent under-
standing of what Johnson v. Jones, 115 S. Ct. 2151 (1995), has
instructed us on the scope of our jurisdiction to review interlocutory
orders denying motions by § 1983 defendants for summary judgment
on qualified immunity grounds. On my different understanding and
application of the jurisdictional principles of that decision, I would
hold that because this appeal seeks only to challenge a fact-related,
evidence-sufficiency determination it should be dismissed. Alterna-
tively, if it be considered that the appeal seeks also to challenge a
purely legal determination properly presented for our review--a
premise I believe not warranted--I would affirm the ruling.

                     30
I

To get at the difference in our understandings of Johnson, I start
by laying out my understanding of its holding and of its more impor-
tant implications for this case.

A.

Johnson was taken for review by the Supreme Court specifically
to clarify that which Mitchell v. Forsyth, 472 U.S. 511 (1985), had
held was immediately reviewable by interlocutory appeal from district
court orders denying summary judgment motions on qualified immu-
nity grounds. Clarification was required because some circuits--
including this one--had misunderstood Mitchell on this critical point.
See Johnson, 115 U.S. at 2154 (citing, inter alia, Turner v. Dammon,
848 F.2d 440, 444 (4th Cir. 1988), among cases reflecting erroneous
view of jurisdiction).

The basic point of clarification is clear. The only immediately
reviewable determination embodied in (or constituting the sole basis
for) such an order is the "purely legal one," see Johnson, 115 S. Ct.
at 2156, that if the facts were as the district court assumed them to
be for summary judgment purposes, defendant's conduct would have
violated a then clearly established constitutional (or statutory) right of
plaintiff of which a reasonable official in defendant's position would
have known. Id. at 2155-2156. Not immediately reviewable are "fact-
related," id. at 2153, determinations embodied in (or constituting the
sole basis for) the denial, that genuine issues of material fact respect-
ing the qualified immunity defense prevent the grant of summary
judgment. Id. at 2156-2158. The reasons for the reviewable/
not-reviewable distinction are found in the collateral order doctrine of
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949), upon
which Mitchell is based, principally in Cohen's separability require-
ment: the "purely legal" issue is separable from the merits of the
§ 1983 claim; the "fact-related" issue inevitably will be intertwined
with the merits to some extent. Id. at 2156 (legal issue); 2157
("evidence-insufficiency" issue).1
_________________________________________________________________
1 A possible semantical problem in making the required conceptual dis-
tinction should be noted. Both of the issues that can be raised by motions

                    31
B.

How do these two different types of determination emerge in the
litigation process to provide the basis for this critical jurisdictional
distinction? The answer can best be found by keeping in mind the
substantive elements of the qualified immunity affirmative defense
and tracing out the adversarial processes of party presentation and
default by which those elements may be put in issue and withheld or
removed from issue at the trial and appellate levels. Recall first the
substantive anatomy of the qualified immunity defense. It is an affir-
mative defense--in the same confession-and-avoidance mode as
release, accord and satisfaction and the like--rather than a simple
denial of one or more of the essential elements of the § 1983 claim.
It invokes the immunity principle that even if the§ 1983 claim has
merit (which ordinarily will be denied) the defendant is not liable and
may not be put to trial because the right allegedly violated was not
one so clearly established at the time of the conduct charged to the
defendant that a reasonable official in his position would have known
_________________________________________________________________
for summary judgment on qualified immunity grounds--whether the
facts, as assumed, show a violation of a clearly-established right of
which a reasonable official in defendant's position would have known,
and whether there are genuine issues of material fact respecting a factual
basis for the defense--are issues of law whose resolutions require deter-
minations "as a matter of law." See Mitchell, 472 U.S. at 528 n.9
(whether violation shown); Anderson v. Creighton , 483 U.S. 635, 641
(1987) (whether genuine issues of material fact exist). The required dis-
tinction, therefore, is not between determinations"of fact" and determi-
nations "as a matter of law," but, as the Court put it, between "fact-
related" determinations (the genuine-issue determination), see Johnson,
115 U.S. at 2153, and "purely legal" determinations (that on facts
assumed, a violation is shown). See id. at 2156. That particular "legal
issues" may be so "fact-related" as not to be "pure" legal issues for par-
ticular procedural purposes is a general proposition that has been recog-
nized in other contexts. See, e.g. Griffin v. United States, 502 U.S. 46,
58-59 (1991) (insufficiency of evidence to convict on one of alternative
factual theories is not ground for vacatur of general verdict of guilt where
other ground is supported; though technically a"legal error," evidence
insufficiency involves a "mistake concerning the weight or the factual
import of evidence" that is not the kind of "legal error" concerning a
"mistake about the law" that would require vacatur).

                  32
that the conduct charged would violate that right. Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). There are both legal and factual
elements in this defense-principle: purely legal issues respecting the
state of the law at a particular time and factual issues respecting the
circumstances under which the charged conduct occurred, such as
whether the defendant was involved at all or in the critical way
charged; whether there were exigencies affecting the objective rea-
sonableness of the conduct charged, etc. See Anderson, 483 U.S. at
641 (actual information possessed); Malley v. Briggs, 475 U.S. 335,
350 (1986) (Powell, J., concurring and dissenting) (exigencies of time
and circumstance).

A defendant invoking the defense in the district court by motion for
summary judgment may therefore base his motion on either purely
legal, or factual, or both grounds. See Johnson , 226 S. Ct. at 2158
(pointing out that motion's grounds serve to identify basis for its
denial). His motion may, for example, be rested solely on some vari-
ant of the following factual positions: (1) assuming (or conceding)
that the conduct charged to me would constitute a violation of clearly-
established constitutional right, etc., I didn't do it (the Johnson
defense); or (2) assuming (or conceding) that the conduct charged to
me did violate the right alleged, the factual circumstances were such
that I acted under reasonable misapprehension that it would not do so.
See Anderson, 483 U.S. at 646-47 n.6. Both of these positions present
only factual grounds for the immunity defense; no purely legal issue
has been raised in the district court, hence none is a potential issue
for appellate review. Whether summary judgment should be granted
depends entirely upon whether there are genuine issues of fact
respecting the ground of defense ("didn't do it," or "reasonably mis-
taken under the circumstances"), and a decision denying summary
judgment necessarily rests only on a determination that there are such
issues, i.e., that the non-movant's forecast of opposing evidence is
sufficient to hold the factual defense at issue. If the defendant then
attempts to appeal such a denial order, the appeal should be dis-
missed, as necessarily seeking review only of the"fact-related" deter-
mination which is the order's sole basis. This is the type of "simple"
case, for jurisdictional purposes, represented for example by Johnson
itself. See Johnson at 2153-2154, 2158.

On the other hand, a defendant's motion may be rested solely on
the "purely legal" issue. It would, for example, if it took the position

                     33
that (3) assuming (or conceding) that the conduct charged to me did
occur as charged, it did not constitute the violation of a then clearly
established constitutional right. See Mitchell , 472 U.S. 511, 535
(1985) (only issue would then be whether "question was open at the
time the officer acted"). This presents no "fact-related" issue, and a
denial of summary judgment by the district court would necessarily
rest only on a determination that as a matter of law the conduct
assumed or conceded did constitute violation of a well-established
right, etc. An appeal from this order thus lies for review of the "purely
legal" determination which necessarily is the sole basis for the denial.
This, too, is a "simple case" for making the jurisdictional distinction.

C.

But, as the Johnson Court recognized in responding to cogent argu-
ments that making the required jurisdictional distinction frequently
would be too conceptually difficult, or too subject to party manipula-
tion, or too subject to uninformative district court records, see id. at
2158-2159, things can get much more complicated for jurisdictional
purposes. This is most likely to occur where a defendant has rested
his motion on both purely legal and fact-related grounds in the district
court. For example, by contending in his motion both, or alternatively,
that (4) assuming the conduct charged to me did occur as charged, it
would not constitute violation of a clearly-established right, etc.
(purely legal) and, in any event, it did not occur in that way, but while
I was absent from the scene (fact-related). Whether or not cleanly
reflected in the record, every denial of such a two-pronged motion
must, as a conceptual matter, involve determinations both that the
conduct as charged did violate a clearly established right, etc. and that
genuine issues of material fact respecting the defendant's asserted
absence from the scene prevented granting summary judgment on that
ground. And, because it necessarily involves, whether or not
expressly stated, the purely legal determination, such an order, per
Johnson, is "appealable" (reviewable)"to [that] extent." Id. at 2156
(quoting Mitchell, 472 U.S. at 530). Which means that it is not "ap-
pealable" (reviewable) with respect to the fact-related, genuine issue
determination, either as a matter of primary or, except perhaps in
exceptional cases, pendent jurisdiction. See id. at 2159.2
_________________________________________________________________
2 Behrens v. Pelletier, 116 S. Ct. 834 (1996), provides an interesting
example of a case treated by the Supreme Court as involving such an

                     34
D.

Everything said to this point about the appealability (immediate
reviewability) of qualified immunity denials under Johnson has
assumed that the defendant will properly have invoked the court of
appeal's power to review that which Johnson says it may review. But
Johnson does not purport (nor does any other Supreme Court decision
of which I am aware) to alter for qualified immunity cases the normal
rules of party presentation and default of issues potentially subject to
appellate review. Therefore, notwithstanding the appealability under
Mitchell and Johnson of any purely legal determination embodied in
a qualified immunity/summary judgment denial, reviewability of such
an order in a particular case yet depends upon the defendant's having
properly raised it in the district court and preserved it for review
under the relevant trial and appellate procedural default rules. E.g.,
Fed. R. Civ. P. 46 (contemporaneous objection rule); Fed. R. App. P.
28(a)(2), 28(b) (issues for review must be identified in brief).

E.

This all means that when it appears from the record that a
defendant-appellant is seeking review of a determination that there
_________________________________________________________________
alternatively based motion and therefore a dually-based denial order.
Though principally concerned with whether under Mitchell public offi-
cials could successively appeal denials of 12(b)(6) motions to dismiss
and Rule 56 motions for summary judgment on qualified immunity
grounds, the Court had also to deal with the respondent's alternative con-
tention that the summary judgment denial order was not in any event
appealable under Johnson because it was expressly based on a determi-
nation that "[m]aterial issues of fact remain." Id. at 842 (internal quota-
tion marks omitted). Not so, said the Behrens Court: "denial of summary
judgment often includes a determination that there are controverted
issues of material fact . . .", id., but this does not mean that where, as in
the case at hand, the denial also "necessarily determined that certain con-
duct attributed to petitioner (which was controverted) constituted a viola-
tion of clearly established law," the latter determination also is not
appealable. Id. It is appealable under Johnson said the Court, which then
reversed the court of appeals' dismissal and remanded to that court to
undertake review of the purely legal determination. Id.

                    35
are genuine issues of material fact respecting a factual ground of his
qualified immunity defense ("didn't do it";"reasonably mistaken in
doing it") that require denial of his motion, the appellate court may
not address to any extent the correctness of that determination. Not
having jurisdiction to review it, the court may only dismiss the appeal
if, as in Johnson, the genuine-issue determination is the sole basis for
the denial, see Finelli v. Tabb, 67 F.3d 67 (4th Cir. 1995) (so hold-
ing), or decline to review it when the denial order is based upon both
a reviewable purely legal determination and the non-reviewable
genuine-issue determination. See Johnson, 115 S. Ct. at 2159 (no
jurisdiction to review an order "insofar as that order determines
whether or not the pretrial record sets forth a`genuine' issue of fact
for trial") (emphasis supplied).

Though, as the Johnson Court expressly noted, disallowing inter-
locutory review of erroneous genuine-issue determinations will some-
times deprive officials of the pre-trial and trial-avoidance benefits of
qualified immunity to which they are entitled, the jurisdictional limi-
tations on Cohen collateral order review power compel that result. See
id. at 2158.

F.

Assuming, however, that a purely legal determination is properly
presented for review, what exactly is reviewed? More specifically,
does the court of appeals accept the district court's identification of
the factual predicate for that court's legal determination and, accept-
ing it, review only the resulting "purely" legal determination? Or may
the court of appeals review for error in the district court's identifica-
tion of the factual predicate that it assumed for summary judgment
purposes? For example, suppose the district court expressly identifies
as the facts it assumed for summary judgment purposes that the
defendant, a prison guard, deliberately failed for twelve hours to
notify an available prison doctor that the plaintiff-inmate had suffered
a broken leg. May the court of appeals do more than consider
whether, on that factual predicate, there would have been a violation
of clearly established Eighth Amendment rights of which a reasonable
official in defendant's position would have known? Could it, for
example, reject the factual predicate, hence the legal determination,
on the basis that under summary judgment procedure rightly applied

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

Though the consequence may seem severe, Johnson 's answer is
plain. Review is confined to the "purely" legal issue whether, accept-
ing the district court's factual predicate, a violation of clearly estab-
lished law would have occurred. This appears in various ways in the
Court's explanation of why review must be confined, in faithfulness
to Cohen's jurisdictional limitations and to a proper allocation of trial
and appellate functions, to purely legal determinations rested upon
assumed factual predicates.

First off, the Court emphasized the jurisdictional compulsion to
confine review in this way. Interlocutory appeals of qualified
immunity/summary judgment denials, said the Court, best serve the
final judgment rule, "if they [are] limited to cases presenting neat
abstract issues of law." Id. at 2158 (quoting 15A Wright & Miller
§ 3914.10, at 664). As is evident, this legal issue can only be
addressed as an "abstract" one if its resolution does not involve
review by courts of appeals of the factual predicates upon which the
district court made its determination. This is borne out in Johnson's
discussion of how courts of appeal are to identify the factual predi-
cates for the district courts' purely legal determinations when those
courts "simply deny summary judgment without indicating their rea-
sons for doing so." Id. at 2159. Easily done, said the Johnson Court,
when the district court has expressly "stated" the facts it has assumed
in denying the motion. In that situation, said the Court, "the court of
appeals can simply take, as given, the facts that the district court
assumed," and assume the same "set of facts" "when it answers the
purely legal question about `clearly established' law." Id. And, where
the district court has not performed the helpful task of stating the facts
it has assumed so that this must be sought by the court of appeals in
"a cumbersome review of the record," the search still is only for
"what facts the district court, in the light most favorable to the non-
moving party likely assumed," id. (emphasis supplied), not for what
it should have assumed.3
_________________________________________________________________
3 Conceptually, abstraction into"pure" law occurs in the process of tak-
ing as a "given" or as "undisputed""for appellate purposes" the facts

                     37
Can the Court actually have intended interlocutory review to be
limited in this further way--that is, in addition to the genuine-issue
limitation? The consequence will be an inability of courts of appeals
to correct manifest district court error in identifying the facts properly
to be assumed for summary judgment purposes, and resulting error in
denying a defendant's entitlement to qualified immunity in advance
of trial. This is a serious consequence, but it is one no more inimical
to the purposes of qualified immunity than is the clear inability of
courts of appeals--under Johnson--even to address manifest district
court error in making "evidence-sufficiency" determinations.4 And, as
the Johnson Court pointed out, the fact that that flat jurisdictional lim-
itation will sometimes force to trial public officials who, under a cor-
rect application of qualified immunity doctrine should not be put to
trial, simply must yield to "competing considerations" of "delay, com-
parative expertise of trial and appellate courts, and wise use of appel-
late resources." Id. at 2158. In other words, occasional district court
error in denying summary judgment either on the grounds that there
_________________________________________________________________
assumed by the district court as predicates for its legal determination. See
Johnson, 115 S. Ct. at 2156, 2159; see also Behrens, 116 S. Ct. at 842
(public official may "claim on appeal that all of the conduct which the
District Court deemed sufficiently supported for purposes of summary
judgment met the Marlow standard of `objective legal reasonableness'")
(emphasis added).
4 As a moment's reflection will demonstrate, if de novo review of the
district court's identification of the factual predicates for its purely legal
determination is not precluded, courts of appeals can by that means
effectively engage in the very evidence-sufficiency review that Johnson
directly forbids. To ask the question what facts the district court should
have assumed in determining whether, applying the summary judgment
standard, they showed a violation of clearly established right of which a
reasonable official in defendant's position would have known, is indistin-
guishable in practical effect from the process of asking whether there
were, as determined by the district court, genuine issues of fact respect-
ing whether under the circumstances a reasonable official in defendant's
position would have known that his conduct would violate the claimed
right.

It is exactly by this back-door route that I believe the majority in this
case has effectively conducted the de novo genuine-issue review forbid-
den by Johnson. See Part II.B., post.

                    38
are genuine issues of fact respecting a factual ground of qualified
immunity defense ("didn't do it" or "reasonably mistaken") or in iden-
tifying the factual predicate for a purely legal ground of defense
("facts assumed don't constitute violation of well-established consti-
tutional right"), must, in deference to countervailing considerations,
simply be tolerated.

G.

In sum, I read Johnson as having confined interlocutory appellate
review of district court orders denying motions for summary judg-
ment on qualified immunity grounds to a narrow,"abstract" issue of
"pure" law: whether "tak[ing] as given" the facts assumed (rightly or
wrongly) by the district court, id. at 2159, those facts show a viola-
tion of clearly established law, etc. This means that interlocutory
review is not available with respect either to (1) determinations by
district courts that there are genuine issues of material fact respecting
a factual ground for the defense which require the denial or
(2) determinations by district courts of those facts that are to be
assumed, for summary judgment purposes, in deciding whether they
show a violation of clearly established right of which a reasonable
official in defendant's position would have known.

This involves a dramatic curtailment of the scope of interlocutory
review which was thought proper in this--and other--circuits before
Johnson's clarification of Mitchell. Our understanding, plainly
revealed in our cases, was that "fact-related," genuine issue determi-
nations as well as purely legal determinations were reviewable on
interlocutory appeals of right under Mitchell . See, e.g., Turner, 848
F.2d at 444 (4th Cir. 1988) (jurisdiction assumed to conduct de novo
record review of district court's determination that genuine issues of
fact respecting factual grounds of defense precluded grant of qualified
immunity motion; district court affirmed); Gooden v. Howard County,
954 F.2d 960, 965-966 (4th Cir. 1992) (en banc) (same; district court
reversed).

The more limited scope of review mandated by Johnson necessar-
ily will allow district court errors in these fact-related determinations
to go undetected at the summary judgment stage and so will deprive
some public official defendants of the trial avoidance benefits to

                     39
which qualified immunity entitled them. This, however, is a risk of
which the Johnson Court was expressly aware and which it thought
nevertheless compelled by jurisdictional constraints on collateral
order review and by considerations of prudent judicial administration.
See Johnson, 116 S. Ct. at 2158.

To put those risks in perspective, two points should be noted.
(1) The practical effect is not to abrogate but only to allocate to the
district courts final responsibility for two fact-related determinations
in pre-trial qualified immunity applications; errors in those determina-
tions will--as in all matters--be the rare exception rather than a fre-
quent occurrence in those courts. (2) When occasional error does
occur, its effect--of forcing unwarranted trial--is exhausted there;
the error is not immunized and may yet be corrected at trial or on later
appeal, with liability thereby avoided. In any event, as I understand
Johnson, its fundamental point is that the game--of laborious inter-
locutory evidence review--is simply not worth the candle--of identi-
fying and correcting the occasional district court error that will occur
both in identifying genuine issues of fact respecting factual grounds
of the defense and in identifying the factual predicates for denials of
summary judgment on purely legal grounds.

II

On this understanding of Johnson and its implications for this case,
I would dismiss this appeal on the basis that the appellants' appeal
only seeks review of the district court's unappealable fact-related
determination that there are genuine issues of material fact respecting
"what happened," hence of the objective reasonableness of their con-
duct.

Assuming, however, for purposes of this case that somehow--as
the majority has concluded--the appeal properly presents for our
review a district court determination of the purely legal issue--
whether on the facts assumed a violation of clearly-established law,
etc., was shown--I would affirm that determination.

I take these in order.

                     40
A.

On any fair reading of the record in this case, the only determina-
tion by the district court that appellants have sought to "appeal" is the
fact-related determination that there were genuine issues of material
fact respecting "what happened," hence whether what happened
involved their violation of a clearly established right, so that summary
judgment was inappropriate.

To demonstrate that, we should start with the appellants' motion
for summary judgment as made and supported in the district court.
See Part I.B. ante. In that motion, which sought dismissal both on the
merits and on qualified immunity grounds, the appellant-officers did
not, as I read the record, actually contend that as a matter of law Win-
field's complaint did not allege a violation of constitutional right, nor,
alternatively, that the right allegedly violated was not then clearly
established. Instead, as shown in their motion papers, they effectively
conceded that under such decisions of this court as Pressly v. Hutto,
816 F.2d 977, 979 (4th Cir. 1987), the right asserted by Winfield of
convicts to be "protected against physical harm at the hands of fellow
inmates resulting from the deliberate or callous indifference of prison
officials to specific known risks of such harm" was then well-settled
in this circuit. J.A. 14, 72. Their qualified immunity defense was
therefore not rested on the purely legal ground that assuming the con-
duct charged to them occurred, it would not have constituted a viola-
tion of that clearly established right. Instead, it was rested on the
purely factual ground that "the facts do not give us such a case here;"
that on the "actual" facts as asserted in their supporting affidavits,
their conduct could not have constituted violation of the acknowl-
edged right because it lacked the requisite deliberate indifference. See
id. This is a factual defense essentially indistinguishable from the
simple "weren't there, didn't do it" factual defense that was raised as
the sole basis for the officers' motion in Johnson.5 See Part I.B.ante.
_________________________________________________________________
5 Though a factual defense of this sort--"didn't do it," or "didn't have
the requisite intent"--goes as well to the merits of a § 1983 claim, its
assertion as the basis for qualified immunity dismissal is both conceptu-
ally sound and practically warranted. And it of course provides the most
complete example of an intertwining, hence inseparability for interlocu-
tory review purposes, of the claim on the merits and the qualified immu-
nity defense. See Johnson, 116 S. Ct. at 2157, 2158.

                     41
The district court's opinion denying the two-pronged motion,
though not as helpful for purposes of making the Johnson distinction
as we might wish,6 is plain enough for our purposes. The court's
memorandum opinion conflated its rulings on the merits and qualified
immunity grounds of the motion. As to the merits defense, which was
rested essentially on the same factual "no deliberate indifference"
grounds as was the qualified immunity defense, the court expressly
concluded that "there are genuine issues of material fact," that
"[i]ndeed . . . this case is peculiarly fact-specific and should proceed
to trial on the merits." J.A. 80.

Specifically addressing the qualified immunity defense, the court
then opined that the constitutional right asserted in Winfield's com-
plaint and responsive affidavit was--as appellants had effectively
conceded--well-settled at the time of the assault. 7 J.A. 81. Having
already determined, in ruling on the merits defense, that there were
_________________________________________________________________
6 Which is said with no implied criticism of the court. Under this
court's pre-Johnson precedents, neither litigants nor district courts were
on notice of any need for special precision in making and ruling on sum-
mary judgment motions on qualified immunity grounds. Under our unre-
stricted scope of review regime, we had no occasion to differentiate
between the fact-related and purely legal grounds of orders denying sum-
mary judgment, and litigants and district courts therefore properly felt no
compulsion to help us in that respect.

That we deal in this case--deemed by a majority of the court to be suf-
ficiently important for en banc consideration--with such an imprecise
record may well suggest the improvidence of that decision. Hard cases,
in the substantive sense, tempt courts to make bad law, and so may
poorly developed records, particularly those created under a procedural
regime which no longer controls on appeal. But--here we are.
7 Here is one of the anomalies that might be expected in a pre-Johnson
district court ruling in this circuit, and that probably will not recur under
the new regime. See note 6, ante. As indicated, the defendant officers did
not--certainly did not clearly--raise the "purely legal" issue in their
motion, instead apparently conceding or assuming it arguendo, in relying
solely on their factual defense. The district court's ensuing statement that
the right asserted was a well-settled one was therefore probably not tech-
nically a "determination" of a contested legal issue, but a passing com-
ment that could not have been thought in pre-Johnson days to have any
consequence for interlocutory review of the denial order.

                     42
genuine issues of material fact respecting "what happened," the court
did not expressly reiterate that conclusion with respect to the qualified
immunity defense. But it is manifest that the existence of genuine
issues respecting "what happened," hence whether the appellants'
conduct was as a matter of law objectively reasonable (not deliber-
ately indifferent), was the basis for the court's denial. For the court
specifically identified as controverted facts it considered material to
the defense Winfield's assertions in affidavit that some of the
appellant-officers were forewarned of the risk posed by Gibson to
other inmates' safety by their knowledge that he had a weapon and
had been consuming alcohol. Assuming that were true, the court
opined "the officers [were] bound to know that the safety of other
inmates was at risk" and that their "permissive attitude . . . would vio-
late the inmates' right to continued protection and security." Without
further elaboration on the factual issues, the court then denied the
qualified immunity motion.

It seems clear that at this point in the record the district court had
determined (rightly or wrongly) that there were genuine issues of
material fact respecting "what happened" that required denial of the
motion. It is less clear, but possible, that it had also made a "purely
legal" determination--thinking the issue had been raised--that on the
facts as it assumed them a violation of clearly established law of
which reasonable persons in the officers positions would have known
was shown. In any event, whatever the determinations actually made,
the officers could not under Johnson appeal the denial order insofar
as it rested on a genuine-issue determination, but only insofar as it
rested on any "purely legal" determination that was made. Further-
more, even if there was a purely legal determination that was appeal-
able, it is not entitled to review on this appeal--absent extraordinary
circumstances--unless properly presented for our review.

To take the next step in the jurisdictional inquiry we must then
determine from the record what issues the appellants have sought to
"appeal." How do we do this? The notice of appeal ordinarily will not
tell us; it is required only to identify the "order, or part thereof" from
which appeal is taken, and not the legal rulings on which it is based.
Fed. R. App. P. 3(c). So, the notice of appeal here does not perform
the required service. See J.A. 83. If the Federal Rules of Appellate
Procedure are properly observed, the appellants' brief should tell us,

                     43
for the "issues" section of the appellant's primary brief is required to
include "[a] statement of the issues presented for review." Fed. R.
App. P. 28(a)(3). The brief in this case regrettably does not do so.
With respect to the district court's denial of the motion for summary
judgment on qualified immunity grounds, the issue is stated in
unhelpful general terms simply as "whether the officers are entitled
to qualified immunity as to all of Winfield's claims." J.A. 8. We get
the answer here with sufficient precision, however, in the argument
section of the appellants' brief. There, in the portion devoted to their
qualified immunity defense, it is plain that the officers do not chal-
lenge (as they did not in the district court) the district court's observa-
tion (determination?) that the constitutional right alleged was "clearly
established" at the critical time, but only the court's essential determi-
nation that there were genuine issues of material fact respecting the
reasonableness of the officers' conduct. The entire burden of the
appellants' argument is that the evidence was insufficient to create a
triable issue of material fact on this element of their defense and that
on the undisputed evidence they had not violated Winfield's right by
their failure to intervene to protect him. J.A. 20-26. Their argument
on the point is summed up in the assertion that on the summary judg-
ment record, there was "[n]o dispute regarding the reasonableness of
. . . these officers' perceptions." J.A. 21-22.

The district court, however, determined that there was such a dis-
pute. And, because that fact-related determination is the only one
sought to be appealed by appellants and as such is not appealable
under Johnson, I would dismiss this appeal. 8
_________________________________________________________________
8 No one could suggest that this is one of those cases where, in an exer-
cise of our discretion, we should, because of special circumstances, con-
sider an issue not actually raised and determined by the district court. See
Singleton v. Wulff, 428 U.S. 106, 120-121 (1975) (general rule subject to
exception only in special circumstances such as the need to avoid "clear
injustice" or where "resolution is beyond any doubt"). This surely is no
such case. Indeed, the ambiguous record and novelty, for us, of the issues
presented strongly militate against using this case as a vehicle for defini-
tive exploration and application of Johnson's new (for us) appellate
review regime.

                     44
B.

The majority, however, has concluded that the appeal properly
seeks and properly presents for our review a purely legal determina-
tion that is appealable under Johnson. As indicated, I disagree with
that, believing (1) that no such issue was actually raised for determi-
nation by the district court and (2) that if it was, the district court's
determination has not been properly presented for our review on this
appeal.

Assuming, however, that such a determination was made and is
properly before us, I would affirm it. The question presented, if the
issue is before us, is whether the facts assumed by the district court
show a violation of clearly established right of which reasonable offi-
cials in appellants' position would have known.

The majority, extensively reviewing the summary judgment materi-
als before the district court, concludes that no such violation was
shown. But it is obvious that this conclusion is reached not on the
basis of the facts "likely assumed" by the district court, but on the
basis of facts the majority concludes should have been assumed by
that court on a right application of summary judgment principles.
Indeed, the majority says--in the course of directly responding in
Part IV of its opinion to the opposing position of this dissent--that
this is exactly what it has done. See ante at 16. And, it purports to find
authority for doing so in what it perceives as the course "plainly envi-
sioned" by the Johnson Court: that "on those infrequent occasions
when a district court does not supply the factual basis for its decision,
we would be required to undertake the type of de novo review that
generally would be prohibited." Id.

With all respect, this is not, as a simple matter of textual exegesis,
what the Johnson Court indicated that it"envisioned." Had it been
what was intended, the Court surely would have said a very simple
thing, such as: "When, however, the district court has failed (com-
pletely [?] or sufficiently [?]) to identify the predicate facts for its
purely legal determination, then, as a matter of necessity, the court of
appeals must make its own de novo determination, applying summary
judgment standards, of the predicate facts properly to be assumed."
The Court said no such thing, nor can such a reading be implied from

                     45
anything it did plainly say. Perhaps the majority--and the other courts
which it says agree with its reading of Johnson on this point--believe
that this is what the Court must have had in mind, or should have had
in mind, given the difficulty of divining from a summary judgment
record what another court "likely assumed." But that of course is not
our function in interpreting Supreme Court mandates. And, in any
event, as I believe can be demonstrated, the process is not that diffi-
cult for courts already required on occasion to divine the likely hold-
ings of highest state courts on matter of state law, or what "jurists of
reason" likely would think about the "newness" of a constitutional
rule, or whether four Justices of the Court likely would vote to grant
a petition for certiorari, etc.

Turning to that process here, the proper question for us is what
facts the district court "likely assumed" as that can be gleaned from
the admittedly unusual record search that Johnson recognized might
be forced by the district court's failure specifically to "state" them?
How do we find facts "likely assumed" without simply doing what the
majority has done here: simply impose on the district court the proper
factual assumption and review its legal determination for error on that
basis? Surely we must pay some attention--though we seek only what
was likely assumed rather than what should have been--to what sum-
mary judgment procedure properly applied would have identified as
the facts to be assumed in making the legal determination. That, after
all, must be taken as the process that guided the district court in iden-
tifying those predicate facts. But "likely" presumes the possibility of
error in that ultimate assumption, and error that must be tolerated in
order to confine interlocutory review within its"purely legal" bounds.
The best evidence, after all, of what a district court has "likely
assumed" as its predicate facts is not what the court of appeals
believes it should have assumed, but the district court's legal determi-
nation that on the facts it did assume (rightly or wrongly) a violation
was shown.

Seeking on that basis what facts the district court here "likely
assumed," as opposed to what it should have assumed on the sum-
mary judgment record, the answer seems plain to me. And, plainly to
support the court's determination that on those assumed facts, a viola-
tion was shown. My analysis would run as follows:

                     46
The district court's specific statement of the predicate facts it
assumed is meager: "it appears from the factual allegations that prison
inmates are allowed liberal access to alcoholic beverages and danger-
ous weapons"; corrections officers therefore were"bound to know
that the safety of other inmates was at risk." J.A. 81-82. Elsewhere,
however, as directly indicative of its reasoning, the court referred to
record materials that could show a number of material facts: that just
before the incident at issue, certain of the appellant-officers were
aware that Winfield and his eventual attacker, Gibson, had been
drinking wine with other inmates in Gibson's cell; that the plaintiff
and Gibson got into a fight but then went into their respective cells;
that the appellant-officers "could have locked the inmates in their
cells but failed to do so"; that "[s]hortly thereafter, Gibson apparently
ran out of his cell and struck [appellant] Williams with his homemade
shank" before entering Winfield's cell and stabbing him; that a third
inmate, Scott, intervened in the fight and subdued Gibson while "cer-
tain [appellants] watched Scott intercede but did nothing to assist
him"; and that the [appellants] assert that[appellant] Walker immedi-
ately signaled for help, but that the assault was over by the time other
officers arrived on the scene." J.A. 78-79.

Looking beyond these materials specifically identified by the court,
other portions of the record flesh out the court's apparent factual
assessment of the situation revealed. Winfield's affidavit asserted that
an officer Choice saw his original fight with Gibson but did nothing
until several other officers converged on the scene. J.A. 66-67. These
officers or at least some of them could be found to have known that
the inmates had been drinking, J.A. 69, and, according to the district
court, that they had easy access to weapons, J.A. 82. Following their
fight in the presence of some of the appellants, Gibson and Winfield
went to their cells, but the guards failed to take the obvious step that
would have put an end to any immediate danger; that is, close and
lock the cells. See J.A. 78 (District Court Op.). Even after Winfield,
by his own account, had several times pressed the buzzer that indi-
cated that he wanted his door closed and locked, the guards did noth-
ing and the door remained open. J.A. 67. Meanwhile, according to
Winfield, "Gibson was mouthing off to the officers as he went to his
cell making threats that he was going to `squash this now', referring
to me." J.A. 67. Some indeterminate but brief time after Gibson went
into his cell, he retrieved a shank and then reemerged from his cell.

                     47
Gibson then entered Winfield's cell and began to stab him as two
officers stood and watched. J.A. 68. At a later grievance meeting,
Williams stated that the reason he did not intervene was that a
Lt. Hicks had ordered the officers not to go into the cells. J.A. 68.
Neither the timing of nor the reason for that order, if it was given,
appear in the record. As two officers watched the stabbing in prog-
ress, a third inmate, one John Scott, pushed through the two officers
at the door to the cell and did intervene. Neither officer came to
Scott's aid, however. J.A. 68. According to this inmate, the officers
continued to stand by doing nothing even after Scott had gotten Gib-
son's weapon hand under control. J.A. 57. During this struggle with
Gibson, according to Scott, Scott asked for help from the guards, sev-
eral of whom were standing at the door "with enough man-power to
take control" if they had only been willing to respond to Scott's
request for help. But the guards were not willing to act. J.A. 57.

Of course, the appellants' summary judgment motion and support-
ing materials present an alternative factual scenario in which they are
completely blameless, certainly not deliberately indifferent to Win-
field's plight. The majority, accepting critical aspects of their account
as "undisputed" by any properly countering materials from Winfield
as non-movant, finds error in the district court's legal determination.9

But, as indicated, it is plain from the record that the facts as
asserted in the appellants' motion papers were not those "likely
assumed" by the district court. Instead, it is obvious that that court
assumed--and plausibly in this case assumed (though that is not
_________________________________________________________________
9 Incidentally, it bears noting that even if the court were properly con-
ducting a straight de novo review, it would not be justified in accepting
certain of the critical facts it relied on as "undisputed" because Winfield
as non-movant did not counter them head-on. Where, as was the case
here, a movant's forecast of critical evidence is undisputed for the obvi-
ous reason that it was in exclusive control of the movants (e.g. that no
guard knew that Gibson had a shank; that the guards followed proscribed
procedures when Gibson emerged from his cell), the nonmoving party
cannot be considered under obligation to deploy specific facts challeng-
ing the credibility of the movant's assertions. See 10A Wright, Miller &
Kane, Fed. Prac. & Proc.: Civil § 2726 at 120-21, § 2727 at 137-43
(1983). At the time these facts were said to have occurred, Winfield was
in his cell with no means of disputing them directly.

                     48
critical)--a quite different scenario adequately inferable from Win-
field's pleading and supporting materials. Under that "likely
assumed" scenario, prison guards who were aware that inmates in the
Winfield/Gibson cell-block area had access to alcoholic beverages
and that some possessed dangerous weapons, did nothing to put a stop
to conduct that they were bound to know posed a general risk of vio-
lence and harm to all inmates. Having witnessed a fight between Gib-
son and Winfield that occurred in that general atmosphere, some of
the appellant-guards deliberately chose not to lock the two in their
respective cells, either on their own initiative or in response to Win-
field's request for protection by sounding his alarm buzzer. When
Gibson then rushed out of his cell towards and into Winfield's where
he stabbed him repeatedly with a metal shank, none of the appellants
made any effort to intervene, though an opportunity was clearly pres-
ented to attempt prevention or interruption of the stabbing without
risk of any greater harm than is a normal incident to the official
responsibilities of the position occupied. In all this, the appellant-
guards involved, though aware of a serious risk that one prisoner
would harm another, adopted a stance of deliberate indifference to
that risk, choosing instead to leave the matter to be resolved by the
inmates rather than risk any harm to themselves.

If those "likely assumed" facts were established in proof--as they
might or might not be--the conduct involved would constitute viola-
tion of a clearly established right of which reasonable officials in
these appellants' positions would be aware. See Farmer v. Brennan,
114 S. Ct. 1970, 1976 (1994) (recognizing right as established in ear-
lier cases).

If this issue were properly before us, the district court's denial of
summary judgment on the basis of these assumed facts should, there-
fore, be affirmed.

III

Seeking to clarify that which, under collateral order doctrine, is
reviewable by appeal from interlocutory orders denying summary
judgment on qualified immunity grounds, the Supreme Court in
Johnson v. Jones recognized that making the distinction between
"fact-related" and "purely legal" determinations that the doctrine

                    49
required sometimes would pose conceptual and practical problems for
courts of appeals. Two of those problems (assuming the related issue
is before us for review) are presented in this appeal to a court for
which they are new issues under Johnson's new (for this court) appel-
late review regime. One is the problem of identifying the predicate
facts "likely assumed" by a district court in making its purely legal
determination that on those facts a violation of clearly-established
constitutional right has been shown when those facts have not been
expressly stated by the court. The other is the nature and scope of
review of that purely legal determination when it has properly been
appealed. In my view, the majority here has failed properly to apply
Johnson's teaching to either of these.

The first, fortunately, is not likely to recur too frequently. If this
case teaches anything, it is the special need for express statements by
district courts of the predicate facts they have assumed in ruling that
on those facts a violation of clearly-established constitutional right
has been shown. That lesson absorbed should spare us from more
cumbersome searches for facts "likely assumed."

The other problem--what it means when reviewing a district
court's purely legal determination to "take as given" the predicate
facts assumed by that court as the basis for its determination--will
persist. On that problem, the majority has now spoken but, with all
respect, wrongly in my view and with unfortunate consequences--
both for the courts and for § 1983 claimants, the deserving among
them as well as the undeserving.

Judges Hall, Murnaghan, Ervin, and Michael authorize me to say
that they join in this opinion.

                    50
