PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

VINCENT HENDERSON; DARYELLE
REXRODE; JOHN CALELLA,
Plaintiffs-Appellants,

v.                                                                    No. 99-1706

STUART O. SIMMS; RICHARD LANHAM,
SR.; WILLIAM O. FILBERT,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CA-99-949-S)

Argued: April 6, 2000

Decided: July 28, 2000

Before LUTTIG and WILLIAMS, Circuit Judges, and
Gerald Bruce LEE, United States District Judge for the
Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Williams wrote the opinion, in
which Judge Luttig and Judge Lee joined.

_________________________________________________________________

COUNSEL

ARGUED: Douglas R.M. Nazarian, HOGAN & HARTSON, L.L.P.,
Baltimore, Maryland, for Appellants. Andrew Howard Baida, Assis-
tant Attorney General, Baltimore, Maryland, for Appellees. ON
BRIEF: Ralph S. Tyler, HOGAN & HARTSON, L.L.P., Baltimore,
Maryland; Eugene J. Yannon, Bowie, Maryland, for Appellants. J.
Joseph Curran, Jr., Attorney General of Maryland, Lawrence P.
Fletcher-Hill, Assistant Attorney General, Baltimore, Maryland, for
Appellees.

_________________________________________________________________

OPINION

WILLIAMS, Circuit Judge:

Appellants Vincent Henderson, Daryelle Rexrode, and John Calella
filed a 42 U.S.C.A. § 1983 (West Supp. 1999) suit in the United
States District Court for the District of Maryland against Appellees
Stuart O. Simms, Richard A. Lanham, Sr., and William O. Filbert in
their individual capacities. Appellants sought damages arising out of
their summary arrests and reincarceration, pursuant to retake warrants
for escapees, following their release from incarceration on mandatory
supervision. The district court dismissed Appellants' suit on the
ground of qualified immunity, reasoning that Appellees did not vio-
late Appellants' clearly established constitutional rights under the
Fourth or Fourteenth Amendment. We hold that Appellees' arrests of
Appellants pursuant to retake warrants for escapees did not violate
Appellants' Fourth Amendment rights. We further hold that Appel-
lees did not violate Appellants' Fourteenth Amendment rights in fail-
ing to provide Appellants a hearing to challenge their arrests and
reincarceration because Appellees reasonably thought that Appellants
were mistakenly released prisoners with no cognizable interest in
remaining at liberty. We therefore affirm the district court's dismissal
of Appellants' complaint.

I.

Because this case is on appeal from a district court's order dismiss-
ing Appellants' complaint, we take the following facts as alleged in
the complaint as true. See S.P. v. City of Takoma Park, 134 F.3d 260,
264 (4th Cir. 1998). Vincent Henderson, Daryelle Rexrode, and John
Calella were convicted in Maryland state court of violating various
provisions of the Maryland criminal law. All three served their

                    2
respective criminal sentences, less deductions for diminution credits
earned, and were released from incarceration on"mandatory supervi-
sion," a release status similar to parole. Henderson was released on
July 7, 1997. Rexrode was released on March 28, 1996. Calella was
released on December 11, 1995. Each complied with the terms of his
release from the time of his release through the filing of the instant
complaint.

On March 9, 1998, the Court of Appeals of Maryland decided the
case of Beshears v. Wickes, 706 A.2d 608 (Md. 1998). Wickes
involved the interpretation of the Maryland statutes governing the cal-
culation of sentence diminution credits. Sometime between March 9,
1998 and May 1, 1998, state officials Stuart O. Simms, Richard A.
Lanham, Sr., and William O. Filbert1 decided that their understanding
of the rule in Wickes should be applied to recalculate the statutory
diminution credits of persons, including Appellants, who had been
released prior to the decision in Wickes. Simms and Lanham, acting
under color of state law, ordered that the release dates of Henderson,
Rexrode, and Calella be recalculated. As a result of these recalcula-
tions, Simms and Lanham authorized and established new release
dates for Appellants that fell far into the future.

Appellees then decided to implement their interpretation of Wickes
by arresting and reincarcerating previously released persons, such as
Appellants, whose revised, post-Wickes release dates had not yet
arrived. Acting pursuant to Md. Ann. Code art. 27,§ 682(d) (1996)
(the Maryland retake-warrant statute),2 Filbert executed and issued
_________________________________________________________________
1 At the time of the complaint, Simms was the Secretary of the Mary-
land Department of Public Safety and Correctional Services, Lanham
was the Commissioner of the Maryland Division of Correction, and Fil-
bert was the Warden of the Maryland Reception, Diagnostic and Classifi-
cation Center.
2 Section 682(d) provides as follows:

          (1) The warden or superintendent of each institution or a desig-
          nee of the warden or superintendent may issue retake warrants
          for the apprehension and return of escapees.

          (2) A copy of the retake warrant shall be forwarded to the
          office of the State's Attorney for the county from which the
          escape was made.

                    3
warrants for the arrests of Henderson, Rexrode, and Calella. The war-
rants were each titled "Retake Warrant for Arrest and Detention of
Escaped Prisoner," although Appellees had actual knowledge that
none of Appellants had in fact escaped. In fact, the warrant specifi-
cally noted that it was being issued "as a result of a court decision
requiring a recalculation of the offender's term of confinement" and
would expire on the revised date recalculated for that prisoner. (J.A.
at 19.) Appellees, acting under color of state law, ordered that Appel-
lants be arrested pursuant to the § 682(d) warrants issued and signed
by Filbert.

Pursuant to these § 682(d) warrants, Appellees directed and caused
armed police officers to arrest each Appellant at his home or place of
work on or about May 1, 1998, and then had each incarcerated.
Appellees did not afford Appellants a hearing (either pre-arrest or
post-arrest) to challenge the basis or legitimacy of their arrests or
incarceration. Following his arrest, on May 8, 1998, Henderson filed
a petition for writ of habeas corpus in the Circuit Court for Baltimore
County. On May 14, the court granted the petition, denied Appellees'
motion for a stay, and ordered Henderson released. On May 18, the
Court of Appeals of Maryland granted Appellees' petition for certio-
rari review of the circuit court's order releasing Henderson and denied
Appellees' motion for a stay. Appellees then released Rexrode and
Calella from incarceration. Following briefing and argument, the
Court of Appeals of Maryland affirmed the circuit court's grant of
habeas relief to Henderson, on the ground that Appellees had misin-
terpreted the Court of Appeals's prior decision in Wickes. See Secre-
tary, Dep't of Pub. Safety & Correctional Servs. v. Henderson, 718
A.2d 1150, 1157-58 (Md. 1998). As a result of Appellees' actions,
Henderson was incarcerated from on or about May 1, 1998 to May
_________________________________________________________________
           (3) Any sheriff or police officer authorized to serve criminal
           process, to whom a warrant for the retaking of an escapee shall
           be delivered, is authorized and required to execute such warrant
           in accordance with the directions contained therein. A sheriff or
           police officer making an arrest under this subsection shall
           promptly notify the Division of Correction of the arrest.

Md. Ann. Code art. 27, § 682(d) (1996).

                    4
14, 1998 and Rexrode and Calella were incarcerated from on or about
May 1, 1998 to May 18, 1998.

On April 6, 1999, Appellants filed suit under 42 U.S.C.A. § 1983
(West Supp. 1999) in the United States District Court for the District
of Maryland seeking damages as a result of their arrests and reincarc-
eration. The complaint alleged that Appellees violated Appellants'
clearly established rights under the Fourth and Fourteenth Amend-
ments by arresting and reincarcerating Appellants without probable
cause and without a hearing following Appellees' determination that
Appellants had been prematurely released from incarceration on man-
datory supervision. Appellees filed a motion to dismiss. By memoran-
dum opinion and order dated May 14, 1999, the district court granted
Appellees' motion to dismiss the complaint in its entirety on the
ground that Appellees were entitled to qualified immunity. The dis-
trict court reasoned that Appellees' actions did not violate Appellants'
clearly established procedural due process rights under the Fourteenth
Amendment because Appellees "reasonably could have believed that
[Appellants] had no protected liberty interest that demanded pre-
deprivation notice and a hearing" and did not violate Appellants'
clearly established rights under the Fourth Amendment because
Appellees "reasonably could have believed that escape from custody
was the closest model for obtaining legal process to effect the retakes
required by Maryland law, there being no statute of Maryland cover-
ing this unlikely situation." (J.A. at 117-18.) On May 19, 1999,
Appellants filed a timely notice of appeal.

II.

Before us, Appellants make two arguments why the district court
judgment should be reversed. First, Appellants argue that because
Appellees knew that Appellants had not escaped, the retake warrants
lacked probable cause and were invalid, and, therefore, Appellants'
arrests violated their clearly established rights under the Fourth
Amendment to be secure from unlawful arrest. Second, Appellants
argue that because the Fourteenth Amendment has long required that
a decision to revoke a former inmate's release status be accompanied
by a corresponding opportunity to challenge the revocation, Appel-
lees' denial of a hearing violated Appellants' clearly established
rights under the Fourteenth Amendment. We review de novo a district

                    5
court's grant of a motion to dismiss on the ground of qualified immu-
nity. See S.P. v. City of Takoma Park, 134 F.3d 260, 265 (4th Cir.
1998).

"Qualified immunity is an accommodation by the courts to the con-
flicting concerns of, on one hand, government officials seeking free-
dom from personal monetary liability and harassing litigation and, on
the other hand, injured persons seeking redress for the abuse of offi-
cial power." Hodge v. Jones, 31 F.3d 157, 162 (4th Cir. 1994) (inter-
nal quotation marks omitted). To that end, qualified immunity
protects government officials performing discretionary functions from
liability for civil damages "insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reason-
able person would have known." Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). In determining whether a government official is entitled
to qualified immunity, "we must (1) identify the right allegedly vio-
lated, (2) determine whether the constitutional right violated was
clearly established at the time of the incident, and (3) evaluate
whether a reasonable offic[ial] would have understood that the con-
duct at issue violated the clearly established right." S.P., 134 F.3d at
265. These steps are sequential; we "`must first determine whether the
plaintiff has alleged the deprivation of an actual constitutional right
at all,'" before "`proceed[ing] to determine whether that right was
clearly established at the time of the alleged violation.'" Wilson v.
Layne, 119 S. Ct. 1692, 1697 (1999) (quoting Conn v. Gabbert, 119
S. Ct. 1292, 1295 (1999)). Accordingly, we address Appellants'
claims in turn, focusing first on whether Appellants' complaint has
alleged a deprivation of their constitutional rights.

A.

Appellants' complaint contends that their arrests by Appellees pur-
suant to "escapee" warrants violated the Fourth Amendment. The
Fourth Amendment, applicable to the States through the Fourteenth
Amendment, see Mapp v. Ohio, 367 U.S. 643, 654-55 (1961), states
in pertinent part that "[t]he right of the people to be secure in their
persons . . . against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause," U.S.
Const. amend. IV. Subject to limited exceptions not relevant in this

                    6
case,3 the general rule is that"Fourth Amendment seizures are `rea-
sonable' only if based on probable cause." Dunaway v. New York, 442
U.S. 200, 213 (1979). Probable cause, in turn, is"defined in terms of
facts and circumstances sufficient to warrant a prudent man in believ-
ing that the suspect had committed or was committing an offense."
Gerstein v. Pugh, 420 U.S. 103, 111 (1975) (internal quotation marks
omitted). "Whether probable cause exists in a particular situation . . .
always turns on two factors in combination: the suspect's conduct as
known to the officer, and the contours of the offense thought to be
committed by that conduct." Pritchett v. Alford, 973 F.2d 307, 314
(4th Cir. 1992). "Probable cause therefore could be lacking in a given
case, and an arrestee's right violated, either because of an arresting
officer's insufficient factual knowledge, or legal misunderstanding, or
both." Id.

In this case, it is undisputed that Appellants were"seized" within
the meaning of the Fourth Amendment when arrested pursuant to
retake warrants. See Brower v. County of Inyo , 489 U.S. 593, 597
(1989) (holding that Fourth Amendment seizure occurs"only when
there is a governmental termination of freedom of movement through
means intentionally applied"); Dunaway , 442 U.S. at 207 (holding
that petitioner was "seized" when he was taken involuntarily to the
police station). Appellants contend that because they had not escaped,
but rather had been released on mandatory supervision, the plain lan-
guage of the Maryland retake-warrant statute did not authorize Appel-
lees to issue retake warrants for Appellants' arrests. Appellants assert
that as a consequence, the retake warrants were supported by no
cause, let alone legally sufficient probable cause.

In response, Appellees contend that under Maryland law and law
from other jurisdictions, prisoners erroneously released from incarcer-
ation hold the same status as escapees for purposes of their reincarc-
eration. In support of this proposition, Appellees cite Hopkins v.
North, 135 A. 367 (Md. 1926). In Hopkins, an individual who was
sentenced to jail became ill and was released for treatment at a sanato-
_________________________________________________________________
3 For example, in Terry v. Ohio, 392 U.S. 1, 20-27 (1968), the Supreme
Court held that the police may make a brief, on-the-spot stop on the
street and a frisk for weapons based upon a reasonable suspicion that
criminal activity is afoot.

                    7
rium by the sheriff upon order of a magistrate. See id. at 367-68. After
the prisoner completed his treatment but refused to return to jail, the
state's attorney filed a petition for a mandamus to compel the sheriff
to arrest the prisoner and keep him in jail until he had served the
remainder of his sentence. See id. at 368. In addressing this issue, the
Court of Appeals of Maryland first held that "[t]he decided weight of
authority, and, in our opinion, the better reasoned cases, hold that,
where a prisoner secures his liberty through some illegal or void
order, it is to be treated as an escape, and he can be retaken and com-
pelled to serve out his sentence." Id. After noting that the magistrate's
order and the sheriff's action in releasing the prisoner in the first place
were unauthorized and illegal, and that the prisoner was given his lib-
erty upon the understanding that when he recovered from his illness
he would return to jail and serve the unexpired portion of his sen-
tence, the Court concluded that "under the circumstances of this case
[the prisoner] must be treated as having escaped, and so is subject to
arrest, and that upon his arrest he can be compelled to serve the
remainder of his sentence." Id.

The Maryland Court of Appeals's decision in Hopkins supports
Appellees' position that no violation of Appellants' Fourth Amend-
ment rights occurred in this case. Because Appellants do not chal-
lenge Appellees' substantive decision to apply Wickes retroactively,
but only challenge the means by which that decision was carried out,
including, inter alia, the execution and issuance of retake warrants for
Appellants' arrests, it follows that Appellants do not challenge the
reasonableness of Appellees' belief that Appellants were released
"through some illegal or void order." Appellants cite no subsequent
Maryland case, and we could find none, suggesting that Maryland
courts would depart from Hopkins. In light of this dearth of disposi-
tive case law, we believe that the common-law definitions of "escape"
and "escapee" in Hopkins are the best indication of how the terms "es-
cape" and "escapees" in the Maryland retake-warrant statute would be
construed today by a Maryland court. See Lorillard v. Pons, 434 U.S.
575, 583 (1978) ("[W]here words are employed in a statute which had
at the time a well-known meaning at common law . . . they are pre-
sumed to have been used in that sense unless the context compels to
the contrary." (alteration in original) (internal quotation marks omit-
ted)). Accordingly, because Hopkins instructs us that a mistakenly
released prisoner is to be treated under Maryland law as an escapee

                     8
for purposes of his reincarceration, we conclude that Appellees did
not violate Appellants' Fourth Amendment rights to be free from
unreasonable seizure when they arrested Appellants pursuant to retake
warrants for escapees. Appellees, therefore, are entitled to dismissal
of Appellants' Fourth Amendment claim. See Jenkins v. Medford, 119
F.3d 1156, 1160 (4th Cir. 1997) (en banc).

Even assuming arguendo that Appellees' arrest of Appellants vio-
lated Appellants' Fourth Amendment rights to be free from unreason-
able seizure, we are convinced that these rights were not clearly
established at the time of the seizures. This Court has held that the
Fourth Amendment right to be arrested only on probable cause is
clearly established. See Smith v. Reddy, 101 F.3d 351, 356 (4th Cir.
1996). If the test of clearly established law is applied at this level of
generality, however, plaintiffs alleging a Fourth Amendment violation
could "convert the rule of qualified immunity . .. into a rule of virtu-
ally unqualified liability." Anderson v. Creighton, 483 U.S. 635, 639
(1987); see also S.P., 134 F.3d at 266 (stating principle in mental
health seizure context). Appellants must therefore allege facts "dem-
onstrating that the established contours of probable cause were suffi-
ciently clear at the time of the seizure such that the unlawfulness of
[Appellees'] actions would have been apparent to reasonable offic[i-
als]." Id. In other words, the appropriate question is whether a reason-
able state official could have believed that issuing retake warrants
pursuant to the Maryland retake-warrant statute for the arrests and
reincarceration of individuals erroneously released on mandatory
supervision was lawful, in light of clearly established law and the
information Appellees possessed. Cf. Wilson, 119 S. Ct. at 1700.

Applying these principles to this case, it was clearly not unreason-
able for a Maryland state official in May 1998 to have believed that
executing and issuing retake warrants pursuant to§ 682(d) for the
arrests and reincarceration of individuals they reasonably believed to
have been erroneously released was lawful. First, because there is no
provision in the Annotated Code of Maryland specifically providing
for the retake of prisoners erroneously released, and given that Mary-
land's highest court had stated in Hopkins that prisoners who gained
their liberty "through some illegal or void order" had the status of
escapees, it was not unreasonable for Appellees to believe that the
means provided for retaking escapees applied to retaking mistakenly

                     9
released prisoners as well. Second, Appellants cite no judicial opin-
ions, and we can find none, stating that it is unlawful to use an
escapee warrant to arrest and reincarcerate erroneously released pris-
oners. See id. (relying in part upon lack of judicial opinions on
whether media entrances into a home violated Fourth Amendment to
justify finding that the right to be free from such entrances was not
clearly established). Although Appellants contend that Appellees
could have obtained the warrants "the old-fashioned lawful way," we
decline to impose liability on Appellees based upon their failure suc-
cessfully to predict the course of the law. Accordingly, even if Appel-
lants' Fourth Amendment rights in this particular context were
cognizable, these rights were not sufficiently clear at the time of
Appellants' arrests to notify reasonable state officials in Appellees'
position that their conduct was unlawful, thus entitling Appellees to
qualified immunity on Appellants' Fourth Amendment claim.

B.

Second, Appellants argue that their reincarceration without a hear-
ing to challenge the basis for the reincarceration violated their rights
not to be deprived of liberty without due process of law under the
Fourteenth Amendment. The Fourteenth Amendment provides in rele-
vant part that "nor shall any State deprive any person of life, liberty,
or property, without due process of law." U.S. Const. amend. XIV,
§ 1. "We examine procedural due process questions in two steps: the
first asks whether there exists a liberty or property interest which has
been interfered with by the State; the second examines whether the
procedures attendant upon that deprivation were constitutionally suf-
ficient." Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454,
460 (1989) (internal citation omitted). An individual claiming a lib-
erty or property interest protected by the Fourteenth Amendment
"must have a legitimate claim of entitlement to it." Id. "Protected lib-
erty interests `may arise from two sources -- the Due Process Clause
itself and the laws of the States.'" Id. (quoting Hewitt v. Helms, 459
U.S. 460, 466 (1983)).

In Morrissey v. Brewer, 408 U.S. 471 (1972), the Supreme Court
addressed the question of whether the requirements of procedural due
process applied to parole revocations. See id. at 481. In answering that
question in the affirmative, the Court first noted that "the liberty of

                    10
a parolee, although indeterminate, includes many of the core values
of unqualified liberty and its termination inflicts a `grievous loss' on
the parolee and often on others." Id. at 482. Buttressing the parolee's
interest in liberty is the society's interest "in not having parole
revoked because of erroneous information or because of an erroneous
evaluation of the need to revoke parole" and its interest "in treating
the parolee with basic fairness." Id. at 484. Accordingly, the Supreme
Court held that due process required a preliminary hearing at the time
of the parolee's arrest and detention "to determine whether there is
probable cause or reasonable ground to believe that the arrested paro-
lee has committed acts that would constitute a violation of parole con-
ditions," id. at 485, and a revocation hearing prior to the final decision
on revocation and within a reasonable time after the parolee is taken
into custody in which the parolee has "an opportunity to be heard and
to show, if he can, that he did not violate the[parole] conditions, or,
if he did, that circumstances in mitigation suggest that the violation
does not warrant revocation," id. at 488.

In Gagnon v. Scarpelli, 411 U.S. 778 (1973), the Supreme Court
extended the two-hearings requirement set forth in Morrissey to the
revocation of probation. See id. at 482. This Court subsequently
extended Morrissey and Gagnon to require a hearing in the case of
a pardon revocation. See Pope v. Chew, 521 F.2d 400, 404-05 (4th
Cir. 1975). Finally, in United States v. Copley , 978 F.2d 829, 831 (4th
Cir. 1992), this Court extended the due process protections enunciated
in Morrissey and Gagnon to revocation of supervised release. In light
of these precedents, Appellants argue, the lack of any hearing at all
to challenge the basis of their arrests and reincarceration violated their
rights to due process.

Appellants' argument overlooks one simple fact: by their own
admission, their case "does not challenge [Appellees'] substantive
decision to apply Wickes retroactively" but rather challenges "the law-
fulness of [Appellees'] deliberate decision to carry out their retroac-
tive decision of Wickes," by, inter alia, denying Appellants an
opportunity to challenge Appellees' decision to have them arrested
and incarcerated. (Appellants' Br. at 16.) Appellants therefore do not
challenge the reasonableness of Appellees' misinterpretation of
Wickes, and by implication, the reasonableness of Appellees' belief
that Appellants had been mistakenly released. A prisoner who is mis-

                     11
takenly released does not have a protected liberty interest because,
unlike a parolee, he does not have a "legitimate claim of entitlement"
to freedom. See Campbell v. Williamson, 783 F. Supp. 1161, 1164
(C.D. Ill. 1992); see also McKellar v. Arizona State Dep't of Correc-
tions, 566 P.2d 1337, 1339 (Ariz. 1977) (holding that state's seizure
and reincarceration of mistakenly released prisoner without a hearing
did not violate due process). With no liberty interest to protect, there
is no violation of due process and no need for the pre-detention hear-
ings contemplated by Morrissey and its progeny. Because Appellants'
complaint failed to show that they suffered a deprivation of due pro-
cess, Appellees are entitled to dismissal of Appellants' Fourteenth
Amendment claim. See Jenkins, 119 F.3d at 1160.

Even assuming arguendo that a mistakenly released prisoner pos-
sesses a liberty interest and the due process right to challenge his
arrest at a preliminary hearing and at a hearing just prior to reincar-
ceration, Appellees would still be entitled to qualified immunity on
Appellants' Fourteenth Amendment claim because this right was not
clearly established at the time of Appellants' arrests. At the time of
Appellants' arrests, this Court recognized that the due process
requirements of Morrissey applied to revocations of pardons and
revocations of supervised release. Because the liberty interest of a
mistakenly released prisoner differs greatly from the liberty interest
of a prisoner who has been pardoned or a prisoner who is on super-
vised release, it does not automatically follow that a mistakenly
released prisoner is entitled to a hearing to challenge his arrest and
reincarceration. See Copley, 978 F.2d at 831 ("Logic would extend
this protection [enunciated in Morrissey and Gagnon] to hearings to
revoke supervised release."); Pope, 521 F.2d at 404 ("The Common-
wealth has not suggested, and we have been unable to imagine, how
the liberty interests of one who is free on conditional pardon differ
from one who is free on parole or probation."). Thus, Appellants'
Fourteenth Amendment rights in this particular context, even if recog-
nized, were not sufficiently clear at the time of their arrests to notify
reasonable state officials in Appellees' position that their denial of a
hearing to Appellants was unlawful.

III.

In sum, we hold that Appellees did not violate Appellants' rights
under the Fourth Amendment and that Appellants had no protected

                     12
liberty interest under the Fourteenth Amendment. We therefore affirm
the district court's dismissal of Appellants' complaint.

AFFIRMED

                   13
