                         UNITED STATES COURT OF APPEALS
                              for the Fifth Circuit

                   _____________________________________

                                No. 93-2062
                   _____________________________________

           GLORIA JEAN HARPER, Individually and as Mother
    and Next Friend of Jordan Harper a Minor and Jordan Harper,

                                                       Plaintiffs-Appellees,

                                        VERSUS

                         HARRIS COUNTY, TEXAS, ET AL,

                                                                Defendants,

                               JOHN P. DENHOLM,

                                                        Defendant-Appellant.

       ______________________________________________________
            Appeal from the United States District Court
                 for the Southern District of Texas
       ______________________________________________________
                            May 11, 1994

                           OPINION ON RECONSIDERATION

Before ALDISERT,1 REYNALDO G. GARZA, and DUHÉ, Circuit Judges.

PER CURIAM:

       The Court has, sua sponte, reconsidered its opinion issued in

this matter on April 29, 1994, and finds portions of Part III

thereof inconsistent with its opinion in Rankin v. Klevenhagen, 5

F.3d 103 (5th Cir. 1993).          Accordingly, we vacate Part III of our

prior opinion in this matter and substitute therefor the following:

                                         III

       Denholm claims that he is entitled to qualified immunity in

that   his   use    of    force   was    objectively   reasonable   under   the


1
    Circuit Judge of the Third Circuit, sitting by designation.
circumstances and in light of the legal rules established at the

time of the arrest.    He contends, inter alia, that he is entitled

to qualified immunity because Harper failed to plead and create a

fact issue that she had sustained a significant injury while being

arrested.

     Qualified immunity protects a police officer from liability if

a reasonable competent law enforcement officer would not have known

that his actions violated clearly established law.       Anderson v.

Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523

(1987).    The objective reasonableness of the officer's conduct is

measured with reference to the law as it existed at the time of the

conduct in question.    King, 974 F.2d at 657.   Therefore, the right

the official is alleged to have violated must have been clearly

established at the time of the occurrence.   Anderson v. Creighton,

483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987).

The contours of the right must be sufficiently clear so that a

reasonable official would understand that what he is doing violates

that right.    Johnston v. City of Houston, 14 F.3d 1056 (5th Cir.

1994) (citing Creighton, 483 U.S. at 640, 107 S.Ct. at 3039).    If,

upon viewing the evidence in the light most favorable to the non-

movant, reasonable public officials could differ on the lawfulness

of the defendant's actions, the defendant is entitled to qualified

immunity.    See id. (citing Pfannstiel v. City of Marion, 918 F.2d

1178, 1183 (5th Cir. 1990)).

     The examination of a claim of qualified immunity is a two-step

process.    The first inquiry is whether the plaintiff has alleged a


                                  2
violation of a clearly established constitutional right.    Siegert

v. Gilley, 500 U.S. 226, ))), 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277

(1991).   It is well settled that if a law enforcement officer uses

excessive force in the course of making an arrest, the Fourth

Amendment guarantee against unreasonable seizure is implicated.

King, 974 F.2d at 656.    The next step is to determine the standard

by which to judge the reasonableness of the officer's behavior.

Id. at 657.

     Denholm argues that controlling authority in October 1990

required a plaintiff alleging an excessive force case under the

Fourth Amendment to prove a significant injury, which resulted

directly and only from the use of force that was clearly excessive

to the need, and the excessiveness of that need was objectively

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

(en banc).      The Supreme Court overruled the significant injury

prong in an Eighth Amendment excessive use of force context.

Hudson v. McMillian, ))) U.S. ))), ))), 112 S.Ct. 995, 1000, 117

L.Ed.2d 156, 167 (1992).    We now hold that the Johnson standard is

no longer valid in the wake of Hudson v. McMillian, ))) U.S. ))),

112 S.Ct. 995, 117 L.Ed.2d 156 (1992), to assess whether plaintiff

has alleged a constitutional violation.    A plaintiff is no longer

required to prove significant injury to assert a section 1983

Fourth Amendment excessive force claim.     See Knight v. Caldwell,

970 F.2d 1430, 1432 (5th Cir. 1992), cert. denied, ))) U.S. ))), 113

S.Ct. 1298, 122 L.Ed.2d 688 (1993).    However, appellant concludes

that since we are to judge the objective reasonableness of the


                                  3
officer's conduct under the laws established at the time of the

occurrence, he is shielded by qualified immunity because the since

discarded "significant injury" component still existed on the date

of the arrest.     Denholm's argument implies that his conduct cannot

be declared "unreasonable" if no significant injury resulted.

      This Court has decisively rejected the retroactive application

of   new   legal   standards   to    excessive    force    claims   involving

qualified immunity, and has held that the objective reasonableness

of a government official's conduct must be measured with reference

to the law as it existed at the time of the conduct in question.

See e.g., Creighton, 483 U.S. at 637, 107 S.Ct. at 3038; see also

Rankin     v.   Klevenhagen,   5    F.3d   103,   108-09   (5th   Cir.   1993)

(requiring objective reasonableness to be measured with reference

to constitutional benchmarks and the law existing at the time of

the conduct).      The benchmark for objective reasonableness is that

which existed at the time of the alleged violation))we look to

clearly established law at that time.         Johnston v. City of Houston,

14 F.3d at 1060 (5th Cir. 1994) (citing Spann v. Rainey, 987 F.2d

1110, 1114 (5th Cir. 1993)).          This task necessarily encompasses

judging the reasonableness of the officer's conduct in light of the

specific contours of the right to be free from excessive force

during arrest that predominated at the time.

      We recently decided this very issue in Rankin v. Klevenhagen,

5 F.3d 103 (5th Cir. 1993).         There we held that in determining the

objective reasonableness of the officer's use of force in 1989, the

court should apply the significant injury test of Shillingford v.


                                       4
Holmes, 634 F.2d 263 (5th Cir. 1981), and Johnson since that was

the constitutional benchmark when the events occurred.              Likewise,

the same test should have been applied to the events in this case

which occurred in 1990.         The district court did not consider the

seriousness of the alleged injuries in determining whether the

officer's conduct was objectively reasonable.            It should have.

       Even applying the proper test, the evidence reveals that a

genuine issue        of   material   fact   remains   regarding   the   use   of

excessive force and the objective reasonableness of using such

force, so Denholm is not entitled to summary judgment.             Of course,

Denholm still may assert qualified immunity at trial.              We express

no view as to the facts that may be established at trial or as to

the legal significance of those facts.

       Except   as    herein   modified     our   original   opinion    remains

unchanged.



REYNALDO G. GARZA, Circuit Judge, Concurring Specially.

       I concur specially in the opinion in this case by my brethren

Duhé and Aldisert because the case is being returned to be tried to

a jury on whether or not Officer Denholm used excessive force or

not.

       I believe that Rankin v. Klevenhagen, 5 F.3d 103 (5th Cir.

1993), was decided wrongly.          Even the panel admits in the opinion

that it creates problems.

       In my view, after Hudson v. McMillian, ___ U.S. ___, 112 S.Ct.

995, 117 L. Ed. 2d 156 (1992), the type of injury suffered is no


                                        5
longer viable and whenever there is a question of fact as to

whether or not an officer used excessive force, it has to be left

to the trier of fact.   If no excessive force was used, the officer

is acquitted and gets his immunity from suit.   If the trier of fact

says excessive force was used then he must suffer the consequences.

     Personally, I cannot conceive of any scenario where qualified

immunity can be granted when there is a disputed question of fact

as to whether or not excessive force was used in making an arrest

using the factors enunciated in Hudson v. McMillian, as a guide on

whether or not there was excessive force used.




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