                                            Filed: October 29, 2002

                           PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


NELSON O. ROBLES,                      
                Plaintiff-Appellant,
                 v.
PRINCE GEORGE’S COUNTY,                         No. 01-1662
                                               (CA-99-31-PJM)
MARYLAND; JAMES ROZAR; ANTONIO
DEBARROS,
             Defendants-Appellees.
                                       
NELSON O. ROBLES,                      
                 Plaintiff-Appellee,
                 v.
PRINCE GEORGE’S COUNTY,                         No. 01-1728
                                               (CA-99-31-PJM)
MARYLAND; JAMES ROZAR; ANTONIO
DEBARROS,
            Defendants-Appellants.
                                       

         On Petition for Rehearing and Rehearing En Banc



   Appellant/Cross-Appellee filed a petition for rehearing with peti-
tion for rehearing en banc.

  The panel voted to deny rehearing.

   A member of the Court requested a poll on the suggestion for
rehearing en banc, and a majority of the judges voted to deny rehear-
2                 ROBLES v. PRINCE GEORGE’S COUNTY
ing en banc. Judge Luttig voted to grant rehearing en banc. Chief
Judge Wilkinson, and Judges Widener, Wilkins, Niemeyer, Williams,
Michael, Motz, Traxler, King, and Gregory voted to deny rehearing
en banc.

   Chief Judge Wilkinson filed an opinion concurring in the denial of
rehearing en banc. Judge Luttig filed an opinion dissenting from the
denial of rehearing en banc.

   The Court denies the petition for rehearing and petition for rehear-
ing en banc.

    Entered at the direction of Chief Judge Wilkinson for the Court.

                                        For the Court


                                        Clerk

WILKINSON, Chief Judge, concurring in the denial of rehearing en
banc:

   The panel opinion sets forth the basis for its decision, and I see no
need to repeat that earlier discussion. See Robles v. Prince George’s
County, 302 F.3d 262 (4th Cir. 2002). Inasmuch as my good col-
league has written in dissent, however, I offer these brief thoughts in
response.

   To read the dissent, one would think that the panel’s decision had
in some way been approving of the officers’ behavior in this case. Far
from it. The opinion disapproves what happened here in no uncertain
terms. It condemns the conduct as "Keystone Kop activity" that was
"foolish and unorthodox." Id. at 271. It recognizes that the officers’
actions were "immature" and "adolescent." Id. at 270, 273. The deci-
sion leaves no doubt this type of conduct is unacceptable.

   The panel also rejected the government’s purported justification for
the incident. According to Prince George’s County, Montgomery
County had been reluctant to accept any custody transfers of detainees
                  ROBLES v. PRINCE GEORGE’S COUNTY                       3
who belonged to Montgomery. Prince George’s contended that the so-
called prank here was merely a misguided attempt to convince neigh-
boring Montgomery County to be more receptive to transfers of cus-
tody when the detainee was subject to outstanding warrants in
Montgomery. Id. at 269. The panel rejected that assertion, finding that
"it was hardly necessary to tie someone to a metal pole in a deserted
parking lot, for however brief a time, in order to effect a transfer of
custody." Id.

   The panel also concluded that Robles had offered sufficient evi-
dence that he suffered more than de minimus injury, but that issue was
close. See Bell v. Wolfish, 441 U.S. 520 (1979); Riley v. Dorton, 115
F.3d 1159 (4th Cir. 1997) (en banc). After all, Robles was left alone
for only 10 minutes, during which time no one bothered him. He con-
cedes that he suffered no physical injury and that the officers told him
that someone would pick him up there later. He offered no objective
evidence (e.g. lost wages or medical expert testimony) to support his
claim of psychological injury. In concluding that Robles had
presented a triable issue of more than de minimus injury, the panel
again gave Robles, not the officers, the benefit of the doubt.

   Finally, the panel found a constitutional violation which allowed
the plaintiff to proceed before a jury on his due process claim. It rec-
ognized that even if the officers were merely acting immaturely, and
even if the panel accepted their assertion that they acted without spe-
cific intent to punish, due process guarantees were still implicated.
The panel clearly acknowledged that even so-called police pranks of
short duration and without any evidence of physical abuse can rise to
the level of a constitutional violation. Id. at 269-70.

   What the panel was unwilling to do was to take this holding of first
impression and strip the qualified immunity defense of any notice
component whatsoever. While stupid or inappropriate behavior on the
part of the police can rise to the level of a federal constitutional viola-
tion, not every violation of state law does so. The Constitution is not
a "font of tort law" to be "superimposed upon whatever systems may
already be administered by the States." Id. at 271 (quoting Paul v.
Davis, 424 U.S. 693, 701 (1976)). Thus, the fact that the officers
"clearly appreciated the wrongfulness of their actions" does not mean
that they understood their actions to be a violation of the federal Con-
4                 ROBLES v. PRINCE GEORGE’S COUNTY
stitution. Id. at 273. The Supreme Court has made clear that the very
vagaries of the Due Process Clause mean that a specific enunciation
of the principles of constitutional liability is required. Anderson v.
Creighton, 483 U.S. 635 (1987). Under Harlow v. Fitzgerald, 457
U.S. 800 (1982), conduct must violate clearly established constitu-
tional rights. Id. at 817-18. And under Anderson the contours of those
rights must be clear. 483 U.S. at 640. To equate knowledge of wrong-
fulness in a generic sense with knowledge of unconstitutionality in a
specific sense is not consistent with the rule of law. The latter requires
notice, something to which even the worst criminal wrongdoer is enti-
tled.

   In reasoning as it did, the panel followed the two-step analysis in
Siegert v. Gilley, 500 U.S. 226 (1991), and Wilson v. Layne, 526 U.S.
603 (1999). Under step one of that analysis, if a constitutional viola-
tion is found then it will nearly always be a "bad act." In fact the con-
stitutional violation in Wilson could be argued to be a far more
invasive act than the incident the panel confronted here. If every bad
act under step one of the Wilson analysis sufficed by itself to answer
the step two qualified immunity inquiry, there would simply be no
qualified immunity defense. The district court felt strongly that the
officers had not been placed on notice that their behavior, however
dumb, violated a clearly established constitutional right.

   My dissenting brother quotes at length from the majority’s analysis
under the first step of Wilson. The panel naturally relied on general
language in Bell v. Wolfish to find a constitutional violation on these
specific facts. The dissent indicates that the language of the step one
analysis detailing the unconstitutionality of the officers’ actions also
suffices to satisfy the second prong of Wilson. However, the pitfalls
of this approach should be apparent. If a court’s general explanation
of why an act is unconstitutional also suffices to supplant the need for
specific notice, then there will be no independent force to the quali-
fied immunity inquiry at all. The two steps of an analysis which the
Supreme Court clearly intended to be sequential and distinct will sim-
ply collapse.

   The concept of notice is rooted in case law. The panel emphatically
did not require the plaintiff to come forward with a case on all fours
with the present one in order to abrogate the qualified immunity
                  ROBLES v. PRINCE GEORGE’S COUNTY                      5
defense. See Anderson, 483 U.S. at 640. It pressed for even one case
that would put the officers on fair notice of a constitutional infraction,
but all the cases plaintiff advanced involved much more egregious or
far different circumstances than those present here. The plaintiff was
unable to provide a single decision to illustrate even the general point
that a fleeting or misguided prank rose to the level of a constitutional
violation. Wilson requires that a plaintiff point to at least some perti-
nent authority. 526 U.S. at 617. Plaintiff provided none at all.

   Indeed plaintiff’s major case, Hope v. Pelzer, 122 S.Ct. 2508
(2002), not only came down six years after the incident in question
here, but was also so factually far afield as not to serve notice of any
sort. And even under the far more egregious circumstances in Hope,
the Court still divided sharply over the viability of the qualified
immunity defense. It is impossible to compare a 10-minute incident
with no physical abuse whatsoever to what the Supreme Court
described in Hope as the "restricted position of confinement for a 7-
hour period," which involved "exposure to the heat of the sun, to pro-
longed thirst and taunting, and to a deprivation of bathroom breaks
that created a risk of particular discomfort and humiliation." Id. at
2514. The Court in Hope went out of its way to stress the extended
time period and the gratuitous infliction of pain, none of which, for
all the stupidity of this behavior, came close to happening here.

   The dissent fares no better than the plaintiff in citing even one case
that is even factually in the neighborhood with this one. It simply con-
tents itself with repeating the indisputable proposition that the behav-
ior here was bad. But the Supreme Court requires that the availability
of qualified immunity be determined through an examination of the
case law, lest judging take leave of the touchstone of unlawfulness
and become little more than a visceral exercise. "I know it when I see
it" is not a substitute for qualified immunity analysis. In Wilson, the
Court noted pointedly that "[p]etitioners have not brought to our
attention any cases of controlling authority in their jurisdiction at the
time of the incident that clearly established the rule on which they
seek to rely." 526 U.S. at 616. Further, the plaintiffs failed even to
identify "a consensus of cases of persuasive authority such that a rea-
sonable officer" would have notice as to the unconstitutionality of his
actions. Id. Likewise, in Hope the Court recognized the relevance of
pertinent case law, holding that earlier circuit case law had put the
6                  ROBLES v. PRINCE GEORGE’S COUNTY
defendants squarely on notice that they were violating the plaintiff’s
constitutional rights. 122 S.Ct at 2516 (referencing Gates v. Collier,
501 F.2d 1291, 1306 (Former 5th Cir. 1974)). While Hope certainly
did not require prior cases to have fundamentally similar facts, neither
did it take leave of the need to inquire into the case law to give at least
a semblance of specificity to what would otherwise be general and
abstract constitutional principles.

   These basic, simple principles worked well here. The officers did
not go unpunished. In finding a constitutional violation, the panel
allowed the plaintiff to proceed before a jury on his state due process
claim for which Maryland provides no qualified immunity defense.
Robles, 302 F.3d at 273. The district court believed that the first
jury’s award of well over a half a million dollars for a 10-minute inci-
dent in which there was probable cause to arrest and no evidence of
verbal or physical abuse was too high. It offered the plaintiff
$240,000 or the opportunity for a new trial, a course which is well
settled under our precedent. Id. at 268. Plaintiff could have taken the
$240,000 and banked it. Instead, he decided to roll the dice. An exten-
sive trial was held on the issue of damages and the jury came back
with an award of $40,000. Id. The panel upheld the jury award. What
it was not prepared to do, however, was relieve the plaintiff of the
consequences of a strategic decision that in hindsight the plaintiff
wished he had made differently.

   This was, in short, a case in which the system worked. It makes
good sense to allow state law to hold officers to strict account while
the parameters of federal violations are fairly defined. Moreover, the
proper precedent has been established for the future. Police officers
have been put on the clearest notice in this circuit that even brief epi-
sodes of foolishness implicate due process guarantees. And the plain-
tiff has had his day in court — and indeed recovered — on the very
claim he is now complaining about.*

   *The dissent asserts that the Fourth Amendment supplies the appropri-
ate analytical framework, rather than the Due Process Clause. This is
incorrect. See Riley v. Dorton, 115 F.3d 1159 (4th Cir. 1997) (en banc).
The ill-advised decision to cuff Robles does not eliminate the fact that
he was validly arrested and held for an hour prior to the cuffing. The
cuffing was part of a crude prisoner transfer, not a fresh seizure or arrest;
it was a confinement pending arraignment similar to that in the station
house in Riley. That fact that Riley was ultimately arraigned while
Robles was not in no way changes the analysis.
                  ROBLES v. PRINCE GEORGE’S COUNTY                     7
   The basic point, however, pertains to the simple fairness of giving
even unpopular parties proper notice. The Supreme Court requires
that we do so, and we are not at liberty to disregard the discipline of
its analysis. In United States v. Lanier, 520 U.S. 259 (1997), the Court
made clear that officers in a civil action for damages under 42 U.S.C.
§ 1983 have the same right to fair notice as defendants charged with
the criminal offense defined in 18 U.S.C. § 242. "The fact that one
has a civil and the other a criminal law role is of no significance; both
serve the same objective, and in effect the qualified immunity test is
simply the adaptation of the fair warning standard to give officials
(and, ultimately, governments) the same protection from civil liability
and its consequences that individuals have traditionally possessed in
the face of vague criminal statutes." Id. at 270-71. Police officers do
bad things. Criminal defendants do bad things. But due process of law
belongs to both.

LUTTIG, Circuit Judge, dissenting from denial of rehearing en banc:

   I dissent from the court’s denial of rehearing en banc. Even had the
panel straightforwardly applied the proper qualified immunity stan-
dards, which it did not, I believe that this case would be worthy of
reconsideration by the full court on the relatively fact-specific ques-
tion of whether these officers are entitled to immunity for their partic-
ular actions. Irrespective of any larger doctrinal implications, it is
significant when a court of appeals holds, as did this panel, that law
enforcement officers today could not reasonably have known that
handcuffing a pretrial detainee to a pole in a deserted shopping center,
and abandoning him there in the middle of the night, admittedly for
no law enforcement purpose whatsoever, would violate his rights
under the Constitution. I think it clear that the constitutional imper-
missibility, not to mention the inherent danger of such, is sufficiently
self-evident to require the denial of qualified immunity to the defen-
dant officers. But because of what are in fact the much larger implica-
tions of the panel’s breathtaking expansion of the qualified immunity
doctrine and resulting constriction of 42 U.S.C. § 1983, I believe the
case is an especially appropriate candidate for further review by the
entire court.

   It is on the assumption that appellant’s restraint was in violation of
his rights as a pretrial detainee under the Fourteenth Amendment that
8                 ROBLES v. PRINCE GEORGE’S COUNTY
I believe this case merits full court review for the foregoing reasons.
I believe that the case is also deserving of en banc reconsideration,
however, for the entirely unrelated, but equally fundamental, reason
that the panel erred in holding that appellant did not suffer a violation
of his Fourth Amendment rights to be free from unreasonable seizure,
but, rather, a violation of his due process rights not to be punished
prior to valid conviction and sentence. Properly viewed, appellant was
not at all a detainee being held pending trial. Rather, handcuffed to
a metal pole in a shopping center and intentionally abandoned by the
arresting officers, appellant was an ordinary citizen subjected to an
unconstitutional restraint.

                                   I.

   The undisputed facts are as follows. Officers of the Prince
George’s County Police Department arrested appellant on an out-
standing traffic warrant from Montgomery County. Thereafter, at
three o’clock in the morning, these sworn officers handcuffed appel-
lant to a metal pole, in the middle of a deserted shopping center, and
left him there, after anonymously notifying the Montgomery County
Police Department that someone had handcuffed a person to a pole in
the Hillandale Shopping Center. Appellant remained handcuffed to
the shopping center pole for some time even after Montgomery
County officers arrived at what they understood to be a crime scene,
because of an inability to sever the handcuffs by which appellant was
restrained. While the total time during which appellant was tied to the
pole does not appear in the record, the delay prior to the arrival of the
summoned officers was approximately 10-15 minutes and appellant
remained tied to the pole for a sufficient time thereafter for a crime-
scene photographer to be called, travel to the site, and record the
scene. See Transcript of the District Court’s Summary Judgment
Motions Hearing at 3, 18, and 22 (Oct. 25, 1999) [hereinafter Sum-
mary Judgment]. During the time that appellant was handcuffed to the
pole, according to the panel, he "did not know when or if anyone
would come to rescue him or who might discover him." Robles v.
Prince George’s County, 302 F.3d 262, 270 (4th Cir. 2002). As the
panel concluded, the officers "clearly appreciated the wrongfulness of
their actions" and "freely admitted that their motive was unrelated to
any legitimate law enforcement function." Id. at 273.
                  ROBLES v. PRINCE GEORGE’S COUNTY                      9
   Notwithstanding these conclusions, the panel granted the officers
full immunity for this unconstitutional conduct on the startling ground
that law enforcement officers could not reasonably have been
expected to know that handcuffing a pretrial detainee to a metal pole
in a deserted shopping center at three o’clock in the morning, and
abandoning him there, concededly for no law enforcement purpose
whatsoever, would violate his rights under the Constitution.

   In affirming the judgment below, the panel concluded that the dis-
trict court had struck "a fortunate balance" "in this unfortunate case,"
id., reaching that disposition that represented the "justice of the case."
Id. at 266-67. Said the panel in summation, "[t]he district judge
wisely let neither party have its way." Id. at 273-74.

   I confess ignorance as to where the "justice of the case" lies. But
under the law, it is quite clear that these officers are not entitled to
immunity for their conduct. Although I would not attempt to do so,
it could legitimately be maintained that the conduct at issue did not
rise to the level of a constitutional violation at all (which is what the
panel really seems to have believed), either because of its character
as prank or because of the relative insignificance of the injuries. But
it has now been almost a quarter century since the Supreme Court
held in Bell v. Wolfish, 441 U.S. 520 (1979), that the official treat-
ment of pretrial detainees that causes greater than de minimis injury
and has no legitimate governmental purpose whatsoever amounts to
unconstitutional punishment. Id. at 538-39; see also Whitley v. Albers,
475 U.S. 312, 322 (1986)(noting that the deference courts accord offi-
cers when deciding if conduct was reasonably related to a legitimate
purpose "does not insulate from review actions taken in bad faith and
for no legitimate purpose"). And, in the intervening years, the Court
has been unwavering in its commitment to this principle. This long
after Bell v. Wolfish, it simply is analytically indefensible to hold that
the particular conduct of these officers violated appellant’s rights
under the Fourteenth Amendment for the reasons that the officers’
conduct served no law enforcement purpose whatsoever and inflicted
more than de minimis injury, and at the same time to hold that the
officers are nonetheless entitled to official immunity for their uncon-
stitutional conduct because they could not reasonably have known
that their conduct was forbidden by the Constitution.
10                ROBLES v. PRINCE GEORGE’S COUNTY
   The panel here concluded, without reservation, that the defendants’
treatment of appellant served absolutely no legitimate law enforce-
ment purpose:

     The police behavior here was not reasonably related —
     indeed it was entirely unrelated — to any legitimate law
     enforcement purpose. Nothing the officers did served to
     enhance their own safety or the safety of others, or to ensure
     the presence of plaintiff at trial. Moreover, it was hardly
     necessary to tie someone to a metal pole in a deserted park-
     ing lot, for however brief a time, in order to effect a transfer
     of custody. The officers’ actions thus served no conceivable
     law enforcement purpose . . . .

Robles, 302 F.3d at 269. In fact, the defendants did not even attempt
to justify their treatment of appellant on the basis of a legitimate law
enforcement purpose. Id. ("[T]he defendants . . . decline to justify
their behavior on [the basis of a law enforcement purpose]."); id. at
273 ("[the officers] have freely admitted that their motive was unre-
lated to any legitimate law enforcement function").

   The panel concluded that appellant suffered more than de minimis
injuries as a result of the defendants’ "arbitrary and purposeless" con-
duct:

     Robles was tied up in a dark and deserted location in the
     middle of the night. He did not know when or if anyone
     would come to rescue him or who might discover him. The
     resulting injury was more than de minimis.

Id. at 270.

   And it even explained that the defendants "clearly appreciated the
wrongfulness of their actions," id. at 273, those actions having even
been in "violat[ion] [of] police regulations as well as state law," id.
at 271. It follows inescapably from the composite of these facts and
conclusions, not only that the defendants violated appellant’s Four-
teenth Amendment rights as a pretrial detainee (as the panel held), but
also that they forfeited their official immunity because of their know-
                  ROBLES v. PRINCE GEORGE’S COUNTY                      11
ing violation of clearly established law (as the panel refused to hold).
Indeed, so clear do I believe it to be that conduct like that at issue here
is prohibited by the Constitution, that I would think it an affront to
law enforcement officers to be told that they would not reasonably
know that such conduct was violative of a detainee’s rights.

   Such is not to say that in every case in which a detainee’s Four-
teenth Amendment rights, as defined by the Court in Bell v. Wolfish,
have been violated immunity will be unavailable and official liability
will attach. In some cases, officers who injure detainees through con-
duct which, it is subsequently determined, served no legitimate law
enforcement purpose and inflicted more than de minimis injury, will
yet be entitled to immunity on the ground that the officers reasonably,
but mistakenly, believed that their conduct was in service of a legiti-
mate law enforcement purpose or would not have inflicted more than
de minimis injury. However, on the panel’s own terms, this is not
such a case. These officers did not even attempt to defend their
actions on the ground that they were in furtherance of a legitimate law
enforcement purpose or could not have reasonably been expected to
inflict injury.

   I cannot help but believe that the panel’s fundamental error lay in
its attempt (candidly undertaken and, doubtless, well-intentioned) to
discern the "justice of the case." Having held that appellant’s non-de
minimis injuries were sustained as a result of treatment that served no
law enforcement purpose whatsoever, and therefore that appellant’s
rights under the Due Process Clause had been violated, the panel’s
concern for "striking the just balance in the case" caused it to jettison
its theretofore rigorous analysis, and the very inquiry which, at the
outset of its qualified immunity analysis, it correctly identified as the
one that it was required to undertake — namely, whether appellant’s
right not to be subjected to serious injury by official conduct that is
not in service of a legitimate law enforcement purpose was clearly
established at the time of the incident in question. Compare Robles,
302 F.3d at 270 ("Because the officers’ actions were not reasonably
related to any law enforcement purpose and Robles suffered more
than de minimis injury as a result of these actions, Robles’ Fourteenth
Amendment right to due process was violated."), with id. ("Even
though the officers’ actions deprived Robles of an actual constitu-
tional right, Rozar and DeBarros may still be entitled to qualified
12                ROBLES v. PRINCE GEORGE’S COUNTY
immunity if that right was not clearly established at the time of the
incident.")(emphasis added).

   Rather than conducting this proper qualified immunity inquiry, the
panel instead, with citation to Anderson v. Creighton, 483 U.S. 635
(1987), simply admonished without elaboration that "a greater degree
of specificity [i.e., greater than simply alleging that conduct amounts
to punishment] is required to overcome a defense of qualified immu-
nity," Robles, 302 F.3d at 270. And then, without even so much as a
further mention of the right, much less a discussion of the level of
specificity at which the right ought to be defined, it merely recited
that there are no cases factually on all-fours with the instant case, and
concluded that the defendants therefore could not possibly have
understood that their conduct violated appellant’s rights.

   Although its award of qualified immunity necessarily entails such
a holding, so expedient is the panel’s analysis on the qualified immu-
nity question that it never even directly states the conclusion that the
officers could not have reasonably known that their conduct was vio-
lative of the Constitution, a statement which, if made, perhaps would
have jarred the sensibilities. See, e.g., id. at 271 ("Although the offi-
cers’ actions in this instance were foolish and unorthodox, it is also
not clear that at the time they acted they should have reasonably
known that their conduct violated [appellant’s] constitutional rights.")
(emphasis added). Indeed, if one carefully reads the panel’s qualified
immunity analysis, it appears that the panel did not even award these
officers immunity on a basis justified in law. The fairest (if not only)
inference from what the panel wrote is that it afforded the officers
immunity, not at all on the ground that the officers could not reason-
ably have known that their conduct violated appellant’s constitutional
rights, the only ground upon which it could legitimately have done so.
Rather, it appears that the panel actually granted qualified immunity
either on the wholly illegitimate ground that the officers did not sub-
jectively understand that their conduct violated clearly established
law, or on the wholly irrelevant ground (irrelevant, that is, to the
qualified immunity claim, as opposed to the threshold claim that the
officers violated appellant’s due process rights) that the conduct did
not rise to the level of a constitutional violation:

     The officers should have known, and indeed did know, that
     they were acting inappropriately. But whether they under-
                  ROBLES v. PRINCE GEORGE’S COUNTY                    13
    stood their conduct violated clearly established federal law
    is an altogether different question. The Constitution is not
    a "font of tort law" to be "superimposed upon whatever sys-
    tems may already be administered by the States." Paul v.
    Davis, 424 U.S. 693, 701 (1976). The officers’ conduct vio-
    lated police regulations as well as state law and was dealt
    with under those provisions. But not every instance of inap-
    propriate behavior on the part of police rises to the level of
    a federal constitutional violation.

Id. at 271 (emphases added).

   In any event, having altogether bypassed the proper qualified
immunity inquiry through this sequence of analytical nonsequitur, the
panel left itself only with the comfortable task of rejecting what was
by that time the strawman argument that cases decided on facts simi-
lar to those here clearly established that the defendants’ conduct was
violative of the Constitution. Unsurprisingly, because of the infre-
quency (to say the least) of such conduct, the panel found no cases
that have held that handcuffing a pretrial detainee to a pole in a
deserted shopping center in the wee hours of the morning, and aban-
doning him there, all admittedly for no law enforcement purpose
whatsoever, is unlawful. And it found "inapposite" the facts of those
few distant authorities that it cited as closest on their facts to those
here, authorities which would have been distinguishable in any event
because they addressed only whether specific conduct was reasonably
related to a legitimate purpose — a question that does not even
present itself in this case because the defendants’ conduct concededly
had no legitimate law enforcement purpose.

   It should be apparent that I do not believe that a decided case is
necessary in order for officers to be on fair notice that conduct like
that by the officers here is violative of the Constitution. See generally
Wilson v. Layne, 526 U.S. 603, 615 (1999)(holding that the precise
conduct need not have been previously held unlawful in order for
qualified immunity to be forfeited); see, e.g., Amaechi v. West, 237
F.3d 356 (4th Cir. 2001)(denying qualified immunity and rejecting
argument that previously decided case must have held that bare-
handed penetration of female genitalia during pat down search was
unconstitutional); McMillian v. Johnson, 88 F.3d 1554 (11th Cir.
14                ROBLES v. PRINCE GEORGE’S COUNTY
1996)(denying qualified immunity to officials who confined pretrial
detainee on death row before his trial in order to punish him, despite
the absence of any factually-similar precedent). And I would like to
have thought that at this point in our history no court would hold, as
did this panel, that law enforcement officers need an opinion from this
court in order for them to be on notice that handcuffing a pretrial
detainee to a metal pole in a deserted shopping center at 3:00 a.m. in
the morning, and abandoning him there, for no law enforcement pur-
pose at all, is unconstitutional. The sheer danger, not even to mention
the constitutional irresponsibility, of such conduct is manifest as a
simple matter of common sense, and is made all the more evident by
events such as the recent spree of unpredictable sniper killings in the
Washington, D.C., metropolitan area, which have even reached to the
identical shopping center in which appellant was handcuffed. Such a
holding as that of the panel analytically completes the transformation
of qualified immunity into absolute immunity and goes a long way
toward the dilution of section 1983 itself. It is rich irony, therefore,
that the panel rhetorically asserts precisely the opposite in support of
its conclusion. See Robles, 302 F.3d at 270 (stating, without elabora-
tion, that the denial of immunity to the officers in this case would
"convert the rule of qualified immunity . . . into a rule of virtually
unqualified liability")(citation omitted).

   But, if decided authority is required, the panel would have found
that authority extant, in the form of the Supreme Court’s decision in
Bell v. Wolfish, had it simply proceeded to inquire, as it originally
said that it must, whether a pretrial detainee’s right not to be injured
by officials acting as did these officers was clearly established at the
time of the incident. Faced foursquare with Bell v. Wolfish, the
panel’s answer on the immunity question assuredly would have been
different.

   Had it paused to consider seriously whether, as to the conduct here
at issue, the particularized standards set forth by the Supreme Court
in Bell v. Wolfish constituted sufficiently clearly established law, the
panel would not have been able to reject so dismissively appellant’s
argument. Contrary to the panel’s characterization of appellant’s
claim, see Robles, 302 F.3d at 270 — a characterization that enabled
easy rejection — appellant did not assert merely the violation of his
right as a detainee not to be punished. Rather, he asserted the consid-
                  ROBLES v. PRINCE GEORGE’S COUNTY                     15
erably more specifically-defined right, per Bell v. Wolfish, not to be
seriously injured as a result of official conduct that serves no legiti-
mate law enforcement purpose. The difference between the specificity
of this right and that to "due process of law," which was held by the
Court in Anderson v. Creighton, 483 U.S. 635 (1987), to be insuffi-
ciently specific to provide officials with adequate notice, could hardly
be any greater. And the contours of this right are more than suffi-
ciently apparent to place officers on notice at least that the conduct
engaged in by these defendants violated the Constitution. To hold oth-
erwise, as the panel did, see Robles, 302 F.3d at 270, is, as appellant
maintains in his petition for rehearing en banc, tantamount to holding
that "the very action in question [must] previously [have] been held
unlawful," Wilson v. Layne, 526 U.S. at 615 — the panel’s disclaimer
that it did not so hold notwithstanding.

   In sum, the panel begins and ends its opinion with the assurance
that justice has been done in this particular case. In the sense that the
term is invoked by the panel, I do not know whether the "just" result
of this dispute is in a splitting of the baby, as the panel concluded. Or
whether the more equitable result would instead be for us to hold that
the defendants did not even violate appellant’s rights under the Con-
stitution. Or, for that matter, for us to hold that the officers both vio-
lated the appellant’s rights and forfeited their otherwise applicable
immunity. I am not even sure how to go about deciding what "justice"
might require in this case.

   However, under the applicable law it is clear not only that these
defendant officers violated appellant’s rights as a pretrial detainee, but
also that they are not entitled to immunity for their actions, for they
were in violation of clearly established law of which they not only
reasonably should have been aware, but actually were aware. And in
this case, as in all others, justice, in the only sense that matters, is
done when we reason to that conclusion which is dictated by the par-
ticular rule of law applicable under the circumstances. We have the
rule of law precisely because we recognize that, as human beings, we
do have different notions of what constitutes "justice" in given cir-
cumstances, but agree that the determination of our rights and the pro-
tection of our liberties must not turn upon those individual notions,
for one man’s "justice" is another’s deprivation of right.
16                ROBLES v. PRINCE GEORGE’S COUNTY
                                   II.

   I have, until this point, addressed myself to the panel opinion on
the assumption that it correctly analyzed the officers’ actions as a pre-
trial detention, rather than as a Fourth Amendment seizure, because
of the significance to the law of the panel’s holding that the defen-
dants are immune for their unconstitutional conduct under the Four-
teenth Amendment. However, I actually believe that the panel entirely
misapprehended the case from the beginning by characterizing the
officers’ restraint of appellant as a pretrial detention, rather than as a
Fourth Amendment seizure.

   It is clear that, following his abandonment in the Hillandale Shop-
ping Center by the Prince George’s County police officers, appel-
lant’s restraint was not in any sense at all a condition of confinement,
contrary to the panel’s critically unexamined assumption. Upon aban-
donment of appellant, the Prince George’s County police terminated
their pretrial detention of appellant (and obviously at that time appel-
lant was not in the custody of the Montgomery County police offi-
cers). The restraint of appellant thereafter, in the absence of a
legitimate law enforcement purpose, constituted an unreasonable sei-
zure in violation of the Fourth Amendment, not a condition of pretrial
confinement.

   That the officers terminated their pretrial detention of appellant is
evident from their actions. But it is also apparent from their testimony
that this was exactly what they intended to do. The officers frankly
testified in depositions that they left appellant in the shopping center
parking lot for the very purpose of terminating their detention of him
and ending their responsibility for his custody and care. The officers,
attempting informally to transfer the prisoner to the Montgomery
County police, were told by officials of that jurisdiction to "process
him" or "release him." The Prince George’s County officers
responded by declaring that they would not process him, and so
would release him, see Summary Judgment at 35. Indeed, on the night
in question, the officers reported to their own dispatcher that appellant
was a "300 SOW," a police code meaning "Sent On Way" (i.e., the
officers released the detainee, sent him on his own way, and no fur-
ther action was being taken). See id. at 55.
                  ROBLES v. PRINCE GEORGE’S COUNTY                     17
   When, as here, officers decide to cease to secure an arrestee’s pres-
ence at trial and in fact terminate their detention of that arrestee with-
out relinquishing custody to other law enforcement personnel, any
further restriction of the individual’s liberty constitutes a new seizure,
as such restriction can no longer be legally based on the prior seizure.
Thus, at the moment following the Prince George’s County officers’
abandonment of appellant, handcuffed to the shopping center pole,
appellant was, as a matter of law, seized anew, a seizure for which
was required a valid law enforcement reason, such as probable cause
or reasonable suspicion. Of course, as we know, that seizure was not
justified by any law enforcement purpose, it having been, as the panel
concluded, completely arbitrary and purposeless. It follows, therefore,
that the defendants violated appellant’s Fourth Amendment rights to
be free from unreasonable seizure.

   Riley v. Dorton, 115 F.3d 1159 (4th Cir. 1997), on which the panel
relied for its holding that appellant was not unlawfully seized, neither
supports that holding nor stands as authority foreclosing the proper
holding that it was appellant’s Fourth Amendment rights that were
violated. It does not support the panel’s holding, because appellant
here, unlike the appellant in that case, plainly was not being held for
trial. Compare id. at 1161 (noting that appellant was "being held prior
to a formal adjudication of guilt"). Thus, no "broaden[ing] [of] Fourth
Amendment protection beyond the point of arrest to cover all persons
in pretrial detention," id. at 1162 (emphasis added), would be entailed
by the holding that appellant was subjected to an unlawful seizure in
violation of the Fourth Amendment.

   By the same token, Riley does not, as the panel in error believed,
foreclose the correct holding that appellant was unlawfully seized,
because such holding does not in any way depend upon recognition
of a "concept of continuing seizure." Compare Robles, 302 F.3d at
268 (citing Riley for the proposition that "this court has rejected any
concept of a continuing seizure rule"). The unlawful seizure of appel-
lant was complete, as I suggest above, at the moment following appel-
lant’s abandonment, handcuffed to the pole, by the defendants,
because at that moment appellant was restrained for reasons wholly
unrelated to any valid law enforcement purpose.
18               ROBLES v. PRINCE GEORGE’S COUNTY
                                 III.

   For the reasons stated, I would grant the petition for rehearing en
banc and set this case for reargument before the full court to consider
the significant holdings by the panel that the officers in this case
could not reasonably have known that their conduct denied appellant
his rights under the Fourteenth Amendment, and that appellant did not
suffer an unreasonable seizure in violation of the Fourth Amend-
ment’s proscription against unreasonable searches and seizures. And
I would hold that the panel fundamentally erred in both of these hold-
ings. Accordingly, I respectfully dissent from my colleagues’ denial
of rehearing en banc.
