Petta v. Rivera ( 1998 )

  •                       REVISED - JUNE 30, 1998
                       UNITED STATES COURT OF APPEALS
                            For the Fifth Circuit
                                No. 95-40157
      MELINDA PETTA, as Next Friend of Nikka Petta and Cavin Petta,
           Minors; NIKKI PETTA, a Minor; CAVIN PETTA, a Minor,
                                               Plaintiffs - Appellees,
    ADRIAN RIVERA, Individually and in his official capacity as Texas
              Department of Public Safety Highway Patrolman,
                                                Defendant - Appellant,
                Appeal from the United States District Court
                     for the Southern District of Texas
                                June 9, 1998
    Before DUHÉ and DENNIS, Circuit Judges, and DUVAL, District Judge1:
    JOHN M. DUHÉ, JR., Circuit Judge:
         Officer Adrian Rivera (“Rivera”) appeals the district court’s
    denial of his motion for summary judgment based on the defense of
         District Judge of the Eastern District of Louisiana, sitting
    by designation.
    qualified immunity.      For the reasons that follow, we reverse and
                               FACTUAL BACKGROUND
          Because the parties dispute certain facts, we summarize the
    relevant incidents drawing inferences in the light most favorable
    to the nonmovants.      See Pfannstiel v. City of Marion, 
    918 F.2d 1178
    , 1183 (5th Cir. 1990).
          On January 15, 1990, Rivera, a Texas Department of Public
    Safety (“TDPS”) Patrol Officer, stopped Melinda Petta (“Petta”) for
    speeding on Farm Road 70, southwest of Corpus Christi.            Inside the
    car were Petta’s two children (“the Petta children”): a son, Cavin,
    age 3, and a daughter, Nikki, age 7.         Following a brief argument
    over the speed Petta had been driving, Petta alleges Rivera ordered
    her out of the vehicle.     When Petta refused to exit and rolled up
    her   window,   Petta   alleges   Rivera   “lost   his   temper,    becoming
    agitated,   irrational,    threatening     and   verbally   and   physically
    abusive.”   Rivera then threatened to have her car towed.               When
    Petta still refused to exit her vehicle, she claims Rivera began
    screaming and cursing her, tried to jerk her door open, and
    attempted to smash her driver’s side window with his nightstick.
    The alleged tirade culminated when Rivera menaced her with his .357
    Magnum handgun.     Petta panicked and fled the scene.            She claims
    that Rivera fired a shot at her car as she drove away.
          What followed was a high-speed pursuit, involving other TDPS
    officers as well as Rivera, that covered some 19 miles through the
    crowded city streets of Corpus Christi.             Petta claims that during
    the chase Rivera again shot at her vehicle, attempting to blow out
    her tires.     The record shows that Rivera’s superiors ordered him
    not to fire at the fleeing car and that Rivera disregarded those
    orders.    The pursuit ended with Petta’s arrest by several officers
    at her apartment.      Petta’s children were never taken into custody
    nor were they touched by any officers.
                               PROCEDURAL HISTORY
         Petta, on behalf of her two minor children, sued the TDPS and
    Rivera, in both his official and individual capacities, asserting
    various state law claims and § 1983 claims for use of excessive
    force in violation of the Fourth and Fourteenth Amendments.                   The
    court dismissed all state and federal claims against the TDPS and
    Rivera, in     his   official   capacity,      as   barred   by   the    Eleventh
    Amendment.     As to Rivera in his individual capacity, the court
    granted his motion for summary judgment on plaintiffs’ § 1983 claim
    based on the Fourth Amendment.         The court, citing Brower v. Inyo
    489 U.S. 593
    , 596-97 (1989), and California v. Hodari D.,
    499 U.S. 621
    , 624-26 (1991), found that no “seizure” of the
    children     had   occurred2    that   would    trigger      Fourth     Amendment
         Plaintiffs did not appeal the district court’s dismissal of
    their Fourth Amendment claims.      Whether the district court
    correctly found no “seizure” of the children under these facts is
    therefore not before us.
         Finding that Rivera had not moved for dismissal or summary
    judgment with regard to the Fourteenth Amendment claims, the court
    allowed Rivera an additional ten days to file an appropriate
    motion. Rivera accordingly filed a supplemental motion for summary
    judgment based on qualified immunity as to the Fourteenth Amendment
    claims.      The    court,   however,    denied     Rivera’s    motion   without
    explanation and set for jury trial plaintiffs’ Fourteenth Amendment
    claims and supplemental state law claims of assault and battery and
    negligence against Rivera, in his individual capacity.                The court
    later     granted    Rivera’s   motion       to   stay   trial    pending    his
    interlocutory appeal.
         Generally, appellate courts have jurisdiction to hear appeals
    only from “final decisions” of district courts.                 See 28 U.S.C. §
    1291 (West 1993).      Certain collateral orders have been recognized
    as “final decisions” within the meaning of § 1291, i.e., those
    which   “[1]   conclusively     determine     the    disputed    question,   [2]
    resolve an important issue completely separate form the merits of
    the action, and [3] [are] effectively unreviewable on appeal from
    a final judgment.”       Puerto Rico Aqueduct and Sewer Authority v.
    Metcalf & Eddy, Inc., 
    506 U.S. 139
    , 142-43 (1993);                 see Cohen v.
    Beneficial Industrial Loan Corp., 
    337 U.S. 541
    , 546 (1949).                    A
    district court’s order denying a defendant’s motion for summary
    judgment    based       on    the     defense      of    qualified    immunity    is   an
    immediately appealable “final decision” under the collateral order
    doctrine where the order denies qualified immunity purely as a
    matter of law.          Johnson v. Jones, 
    115 S. Ct. 2151
    , 2155 (1995);
    Mitchell v. Forsyth, 
    472 U.S. 511
    , 528 (1985); Boulos v. Wilson,
    834 F.2d 504
    , 509 (5th Cir. 1987).                      By contrast, when a district
    court   denies      a        qualified    immunity          defense     based    on    its
    determination that the summary judgment record raises a genuine
    issue of fact concerning the applicability of the defense, such
    order is not immediately appealable under the collateral order
    doctrine.    Johnson, 115 S.Ct. at 2156; Boulos, 834 F.2d at 509.
         Here, the district court denied Rivera’s motion for summary
    judgment    based   on        the    defense       of   qualified     immunity   without
    supporting explanation.                We are not precluded, however, from
    reviewing the order.                In such a case, the movant can claim on
    appeal “that all of the conduct which the District Court deemed
    sufficiently supported for purposes of summary judgment met the
    Harlow standard of ‘objective legal reasonableness.’”                       Behrens v.
    116 S. Ct. 834
    , 842 (1996); Harlow v. Fitzgerald, 
    457 U.S. 800
    , 818 (1982).                We must therefore review the record to
    determine what conduct the district court attributed to Rivera in
    finding that he had violated clearly established law and was not,
    therefore, entitled to the defense of qualified immunity. Behrens,
    116 S.Ct. at 842; Johnson, 115 S.Ct at 2159; Harlow, 457 U.S. at
           As our discussion, infra, demonstrates, our review of the
    record shows that Rivera is entitled to the defense of qualified
    immunity based on the undisputed fact that the Petta children
    alleged purely psychological harm as a result of Rivera’s actions.
    At the time of these events, it was not “clearly established” in
    our law that such non-physical harm gave rise to a constitutional
           A   police   officer     who,   acting    under       color     of   state   law,
    subjects     a   United    States      citizen    to     a    deprivation      of   his
    constitutional rights is liable for damages to the injured party.
    See 42 U.S.C. § 1983 (West 1997); Scheuer v. Rhodes, 
    416 U.S. 232
    237 (1974).      The Supreme Court has read § 1983 “in harmony with
    general principles of tort immunities and defenses rather than in
    derogation of them.” Imbler v. Pachtman, 
    424 U.S. 409
    , 418 (1976);
    see Tenney v. Brandhove, 
    341 U.S. 367
    , 376 (1951).                     Thus, a police
    officer may interpose a defense of qualified immunity when faced
    with a § 1983 action.          Imbler, 424 U.S. at 418; Pierson v. Ray, 
    386 U.S. 547
    , 555-557 (1967); Rankin v. Klevenhagen, 
    5 F.3d 103
    , 108
    (5th Cir. 1993).
           The   doctrine     of   qualified      immunity       shields    a   government
    official performing discretionary functions from civil damages
    liability, provided his complained of actions meet the test of
    “objective legal reasonableness.”           Harlow v. Fitzgerald, 
    457 U.S. 800
    , 819 (1982).      We assess the “objective reasonableness” of an
    officer’s actions in light of legal rules that were “clearly
    established” at the time those actions were taken.                  Anderson v.
    483 U.S. 635
    , 639 (1987).
         We     must   take   care   to    identify     the    relevant    “clearly
    established law” at the proper level of generality so that the
    defense of qualified immunity will serve its intended purpose,
    i.e., to allow officers “reasonably [to] anticipate when their
    conduct may give rise to liability for damages.”                  Anderson, 483
    U.S. at 639-40, quoting Davis v. Scherer, 
    468 U.S. 183
    , 195 (1984).
    To that end, for a right to be “clearly established” we require
    that its “contours ... must be sufficiently clear that a reasonable
    official would understand that what he is doing violates that
    right.”   Anderson, 483 U.S. at 640.         It is not necessary, however,
    that prior cases have held the particular action in question
    unlawful;    “but it is to say that in the light of pre-existing law
    the unlawfulness must be apparent.” Id., citing Mitchell, 472 U.S.
    at 535 n.12 and Malley v. Briggs, 
    475 U.S. 335
    , 344-45 (1986).
         In   Siegert    v.   Gilley,     the   Supreme     Court     clarified   the
    “analytical    structure”    for      addressing    a     claim   of   qualified
    500 U.S. 226
    , 231-32 (1991).          Once a defendant pleads a
    defense of qualified immunity, the trial judge must first determine
    “whether the plaintiff has alleged a constitutional violation at
    all” under current law.            Siegert, 500 U.S. at 232; see Rankin, 5
    F.3d       at   108    (“When   evaluating       whether      a    plaintiff    stated   a
    constitutional           violation,   we     looked      to       currently    applicable
    constitutional standards.”).               If the plaintiff has done so, the
    judge       then      determines   whether       the    defendant’s       actions   were
    “objectively reasonable” with reference to “clearly established
    law” at the time of the conduct in question.                       Siegert, 500 U.S. at
    231; Rankin, 5 F.3d at 108.            We have observed that this analysis
    will at times lead to a “somewhat schizophrenic approach,” as, for
    example, when a court must apply conflicting legal standards to the
    two prongs of the test.            See, e.g., Rankin, 5 F.3d at 109 & n.7.3
           With those principles in mind, we now turn to the merits of
    Rivera’s qualified immunity defense.                   We review de novo the denial
    of Rivera’s motion for summary judgment on the basis of qualified
    immunity.          Hale v. Townley, 
    45 F.3d 914
    , 917 (5th Cir. 1995);
    Salas v. Carpenter, 
    980 F.2d 299
    , 304 (5th Cir. 1992).
          In Rankin, we applied Hudson v. McMillian, 
    503 U.S. 1
    to the initial “constitutional violation” question, while applying
    Shillingford v. Holmes, 
    634 F.2d 263
     (5th Cir. 1981), to the
    “clearly established law” question, even though Hudson had altered
    the Shillingford test for Eighth Amendment violations. See Hudson,
    503 U.S. at 9-10; Shillingford, 634 F.2d at 265. This apparent
    conundrum was inevitable, however, because the qualified immunity
    analysis requires us to evaluate the state of a “constitutional
    violation” at two different times, i.e., when the plaintiff files
    his lawsuit and when the allegedly violative conduct occurred. See
    Siegert, 500 U.S. at 231-32.
         The Petta children claim that Rivera’s abusive behavior and
    use of excessive force during the initial stop and ensuing chase
    caused them severe emotional harm and thus deprived them of liberty
    without due process, in violation of the Fourteenth Amendment.
    See, e.g., Landol-Rivera v. Cruz Cosme, 
    906 F.2d 791
    , 796 (1st Cir.
    1990); Pleasant v. Zamieski, 
    895 F.2d 272
    , 276 n.2 (6th Cir. 1990);
    Sinaloa Lake Owners Ass’n v. City of Simi Valley, 
    882 F.2d 1398
    1408 n.10 (9th Cir. 1989).4          We assume without deciding that the
    Petta    children   have   alleged    a       constitutional   violation   under
    current law5 because we find that, at the time of the incident in
    question, the law was not “clearly established” that a police
    officer’s use of excessive force resulting in purely emotional harm
    rose to the level of a constitutional due process violation.
          We cite cases from other Circuits because, as our discussion,
    infra Part III.B.4 demonstrates, we have not found cases in our
    Circuit, post-Graham v. Connor, 
    490 U.S. 386
     (1989), analyzing
    excessive force claims under the Fourteenth Amendment where,
    although in the context of an arrest or investigatory stop, no
    technical “seizure” had occurred for Fourth Amendment purposes.
    Cf. Ikerd v. Blair, 
    101 F.3d 430
    , 433 n.6 (5th Cir. 1996); Mouille
    v. City of Live Oak, 
    918 F.2d 548
    , 550-51 (5th Cir. 1990).
          But see Ikerd, 101 F.3d at 434 n.10 (declining to address
    issue, in Fourth Amendment context, whether some physical injury is
    required to state excessive force claim), and Hinojosa v. City of
    Terrell, Texas, 
    834 F.2d 1223
    , 1230 (5th Cir. 1988)(declining to
    reach issue, outside Fourth Amendment context, “whether or not some
    type of physical injury will in every instance be necessary for [§]
    1983 liability in a use of excessive force claim.). See discussion
    infra Part III.B.3.
         In order to assess what “clearly established” legal standards
    governed Rivera’s actions on January 15, 1990, we must trace the
    origins in this Circuit of a Fourteenth Amendment claim based on a
    police officer’s use of excessive force.
         In Shillingford v. Holmes, 
    634 F.2d 263
    , 265 (5th Cir. 1981),
    we first sketched the parameters of such a claim, relying in part
    on Hall v. Tawney, 
    621 F.2d 607
    , 613 (4th Cir. 1980), and Johnson
    v. Glick, 
    481 F.2d 1028
    , 1033 (2nd Cir. 1973).             We defined the
    “constitutional tort” thus:
                  If the state officer’s action caused severe
                  injuries, was grossly disproportionate to the
                  need for action under the circumstances and
                  was inspired by malice rather than merely
                  careless or unwise excess of zeal so that it
                  amounted to an abuse of official power that
                  shocks the conscience, it should be redressed
                  under Section 1983.
    Shillingford, 634 F.2d at 265.             Regarding the “severe injury”
    requirement, we specifically noted that “[t]he degree of force
    exerted and the extent of physical injury inflicted that together
    amount   to    a    constitutional   deprivation   must,   of   course,   be
    determined by the facts of a given case.”           Id.    We thus avoided
    drawing any “bright lines” based on the severity of a particular
    injury that would separate constitutional from non-constitutional
    violations.        Id., citing Baker v. McCollan, 
    443 U.S. 137
    Furthermore, in addressing the factual situation presented in
    Shillingford,6 we focused as much on the potential for severe
    injury created by the policeman’s conduct as on the actual injury
    itself.   Shillingford, 634 F.2d at 266 (“That the results of the
    attack on Shillingford’s person were not crippling was merely
    fortuitous.   That same blow might have caused blindness or other
    permanent injury.”).
         Shillingford provided the standard for excessive force claims
    in this Circuit for the next eight years.7     We note, however, a
         Shillingford involved a policeman’s unprovoked attack of a
    bystander who was attempting to photograph an arrest.       The
    policeman smashed Shillingford’s camera into his face with a
    nightstick, destroying the camera and lacerating Shillingford’s
    forehead. Shillingford, 634 F.2d at 264.
          See, e.g., Raley v. Fraser, 
    747 F.2d 287
    , 289 (5th Cir. 1984);
    Lynch v. Cannatella, 
    810 F.2d 1363
    , 1375 (5th Cir. 1987); Stevens
    v. Corbell, 
    832 F.2d 884
    , 889 (5th Cir. 1987); Hinojosa v. City of
    Terrell, Texas, 
    834 F.2d 1223
    , 1229 (5th Cir. 1988); Brumfield v.
    849 F.2d 152
    , 156 (5th Cir. 1988). In 1986, however, the
    Supreme Court decided Whitley v. Albers, 
    475 U.S. 312
     (1986), which
    may have imposed a slightly different standard on excessive force
    claims based on the Eighth Amendment’s prohibition of cruel and
    unusual punishments. In Whitley, the Court stated that “whether
    the measure taken inflicted unnecessary and wanton pain and
    suffering ultimately turns on ‘whether force was applied in a good
    faith effort to maintain or restore discipline or maliciously or
    sadistically for the very purposes of causing harm.’” Whitley, 475
    U.S. at 320-21, quoting Johnson v. Glick, 
    481 F.2d 1028
    , 1033 (2nd
    Cir. 1973). We observe, however, that in formulating its standard
    for Eighth Amendment excessive force violations in 1986, the
    Supreme Court relied on Johnson v. Glick, supra, the same case the
    Shillingford court had relied on. See Shillingford, 634 F.2d at
    265.   Also, we have before held that the Whitley test did not
    govern a Fourteenth Amendment excessive force claim in 1987, see
    Stevens, 832 F.2d at 889, while at the same time noting the Supreme
    Court’s statement in Whitley that “at least in the prison security
    guard context, the ‘Due Process clause affords no greater
    protection than does the Cruel and Unusual Punishment Clause.’”
    Id., quoting Whitley, 475 U.S. at 327.      Thus, it seems unclear
    handful of decisions applying Shillingford that shed light on the
    question before us.
         In McFadden v. Lucas, 
    713 F.2d 143
     (5th Cir. 1983), we
    considered a prisoner’s § 1983 claim, alleging, inter alia, that
    twenty-two correction officers forced him, through an “intimidating
    show of force,” to shave his beard, which he wore for religious
    reasons, in violation of the First and Eighth Amendments.             In
    determining whether the plaintiff had stated a claim that his right
    to be free from cruel and unusual punishment had been violated, we
    relied on Shillingford and Johnson v. Glick, supra.         Id. at 146.
    We found that plaintiff’s complaint
              [fell] so short of stating a section 1983
              cause of action as to warrant sua sponte
              dismissal by the court below. The plaintiff
              has nowhere alleged that he was physically
              assaulted.   In fact, the plaintiff nowhere
              alleges that, except for the commonplace event
              of being shaved, any touching of his person
              occurred at all.
    Id. at 146-47.    We went on to state that, even if the officers’
    show of force could be considered excessive, “we must, in the
    absence   of   physical   abuse,   concur   with   the   lower   court’s
    dismissal.”    Id. at 147 (emphasis added).   The absence of physical
    abuse seemed to us, under those circumstances, to prevent the
    whether there was a different standard for Eighth Amendment, as
    opposed to Fourth and Fourteenth Amendment, excessive force claims
    in 1986; as our discussion, infra, demonstrates, however, the need
    to distinguish became clearer with the Supreme Court’s decisions in
    Graham v. Connor, 
    490 U.S. 386
     (1989), and Hudson v. McMillian, 
    503 U.S. 1
    alleged misconduct from “shock[ing] the conscience.”           Id., quoting
    Rochin v. California, 
    342 U.S. 165
    , 172 (1952).
         In Coon v. Ledbetter, 
    780 F.2d 1158
     (5th Cir. 1986), we
    allowed a § 1983 claim for excessive force on behalf of a young
    child under circumstances somewhat similar to ours.            In Coon, the
    police allegedly fired into a trailer attempting to apprehend the
    trailer’s owner, Billy Dan Coon.           Coon’s four-year-old daughter,
    Racheal, was inside the trailer when the shot was fired.              Although
    the facts do not indicate that Racheal suffered anything but
    “sleeplessness and nightmares” after the incident, we nonetheless
    found    that   she   had   sufficiently    alleged   a   violation    of   her
    constitutional rights.       Id. at 1160-1161.8
         In Coon, we addressed the contours of the excessive force
    claim in the context of whether the plaintiffs had adequately
    alleged a constitutional violation.         Id. at 1160-61.    We discussed
    the officers’ defense of qualified immunity only insofar as it
    could arise on retrial.        Id. at 1164.     We did not, in any case,
         Addressing why Racheal had alleged sufficient “personal loss
    required for a constitutional claim,” and why her mother, Dana, had
    not, we stated:
         There was no evidence that any act of the deputies was
         directed toward Dana; she was not directly involved in
         the shooting and was with the deputies when it occurred.
         Racheal, however, was in the trailer. There was evidence
         that Coon staggered into the trailer and while he was
         there attempted to protect Racheal from the gunfire, and
         there was evidence that Deputy Gussberry fired a round of
         heavy buckshot into the trailer at that time.
    Id. at 1161.
    squarely address the question whether non-physical injury alone
    could satisfy the Shillingford test (although we certainly implied
    that it would). Regarding the applicability of qualified immunity,
    we merely observed that “[u]se of excessive force in making an
    arrest violates clearly established rights, and the doctrine of
    qualified immunity therefore does not shield an officer who uses
    excessive force.”       Id.
         We   do   not    call    Coon     into    question,   however.     In    1986,
    Shillingford was “clearly established law” in this area and we had
    not yet drawn any “bright lines” between constitutional and non-
    constitutional violations on the basis of physical or non-physical
    injuries (see discussion infra at III.B.3). Thus, the Coon court’s
    implicit finding that the officers’ conduct there satisfied the
    Shillingford test (and in particular that Racheal Coon’s injuries
    were “severe,” see Shillingford, 634 F.2d at 265) appears justified
    in light of “clearly established” legal rules at that time.
         Shortly after Coon, we decided Checki v. Webb, 
    785 F.2d 534
    (5th Cir. 1986), in which police officers allegedly chased the
    plaintiffs     at    high     speeds    without    probable     cause   and    then
    physically abused them at a police roadblock.                 Id. at 535-36.     In
    finding that the plaintiffs had filed suit in a proper venue under
    28 U.S.C. § 1391 and had thus interrupted prescription under
    Louisiana law, we considered where the plaintiffs’ constitutional
    claim “arose” for purposes of the federal venue statute.                     Id. at
    537-38.      We held that, although the plaintiffs sustained all
    physical injuries in the Middle District of Louisiana, they could
    have properly alleged a constitutional violation arising out of the
    officers’ conduct (the high-speed chase) in the Eastern District:
               It cannot be reasonably argued that no serious
               physical danger confronts civilians who are
               forced to travel at speeds over 100 mph in
               their attempt to flee a terrorizing police
               officer.    Furthermore, there is no valid
               reason for insisting on physical injury before
               a section 1983 claim can be stated in this
               context.   A police officer who terrorizes a
               civilian by brandishing a cocked gun in front
               of that civilian’s face may not cause physical
               injury, but he has certainly laid the building
               blocks for a section 1983 claim against him.
    Id. at 538.    Thus, we found venue proper in the Eastern District of
    Louisiana.    Id.
         Over a year later we decided Jefferson v. Ysleta Independent
    School District, 
    817 F.2d 303
     (5th Cir. 1987).          In Jefferson, the
    parents of an eight-year-old girl sued school officials under §
    1983 for allegedly tying her to a chair with a jump rope for the
    greater part of two days, denying her access to the bathroom and
    thereby   causing   her   “humiliation   and   mental   anguish   ...   and
    [impairment] in her ability to study productively.”          Id. at 304.
    We affirmed the district court’s rejection, on summary judgment, of
    the defendants’ claim of qualified immunity:
               We are persuaded that in January 1985, a
               competent teacher knew or should have known
               that to tie a second-grade student to a chair
               for an entire school day and for a substantial
               portion of a second day, as an educational
                exercise, with no suggested justification,
                such   as  punishment   or  discipline, was
                constitutionally impermissible.
    Id. at 305.        We found, citing Shillingford, that plaintiffs’
    allegations, if proven, “would implicate, inter alia, Jardine’s
    fifth and fourteenth amendment rights to substantive due process,
    specifically her right to be free from bodily restraint.”                 Id.9
    Again, we did not squarely address whether non-physical injuries
    (which are all that were alleged in Jefferson, although the claimed
    constitutional wrongs clearly involved prolonged physical distress)
    would    satisfy   the   Shillingford     “severe   injury”    requirement.
    Instead, we focused on the outrageous conduct of the defendants.
    See id.
         Less than a year later, we addressed in Hinojosa v. City of
    Terrell, Texas, 
    834 F.2d 1223
     (5th Cir. 1988), the hypothetical
    situation posited in Checki (supra, 785 F.2d at 538), but perhaps
    reached a different result than the Checki panel had predicted.
    There, the    plaintiff    sued   several   officers   under   §   1983   for
    allegedly using excessive force against him where, in the course of
         As our discussion of legal developments subsequent to
    Jefferson demonstrates (see discussion infra III.B.3), we need not
    distinguish Jefferson.     We do point out, however, that the
    constitutional right relied upon in Jefferson, while deriving from
    the due process clause, was slightly distinct from that relied on
    by the Petta children. Arguably, a due process right “to be free
    from bodily restraint,” see Jefferson, 817 F.2d at 305, is
    conceptually different from a due process right “to be free from
    excessive force,” where the claimed excessive force does not
    involve any bodily restraint or “damage to a person’s bodily
    integrity,” see Shillingford, 634 F.2d at 265, whatsoever.
    an altercation and subsequent arrest, an officer waved a gun in the
    plaintiff’s face.     We treated the plaintiff’s claims as arising
    under the Fourteenth Amendment, however, because we found that the
    alleged excessive force (waving a gun in the plaintiff’s face)
    occurred    before,   and   was    not    involved   in,   the   plaintiff’s
    subsequent arrest.      See id. at 1229 n.7.           We found that the
    plaintiff had not produced sufficient evidence under Shillingford
    to support the jury’s finding in his favor on the excessive force
    claim.     We therefore reversed the district court’s denial of the
    defendant’s motions for judgment notwithstanding the verdict and
    for new trial.    Id. at 1229-31.
         We found in Hinojosa that the plaintiff’s injury “which
    [could] only be characterized as temporary emotional distress,
    simply [did] not rise to a level that can be redressed for such a
    claim under section 1983.”        Id. at 1229.   We then stated that
                [t]here is absolutely no evidence ... that
                Hinojosa was struck, or even touched, during
                the incident. Hinojosa did not claim to have
                suffered even minor physical injuries or
    Id. (emphasis added). While those statements strongly suggest that
    the Hinojosa panel would have required some physical injury to meet
    the Shillingford “severe injury” requirement, the panel went on to
    state that “[t]his Court does not here determine whether or not
    some type of physical injury will in every instance be necessary
    for section 1983 liability in a use of excessive force claim.”
            In     sum,   Shillingford     was     the      “clearly     established    law”
    governing most, if not all, excessive force claims from January 15,
    1981 until July 5, 1989, when we decided Johnson v. Morel, 
    876 F.2d 477
     (5th Cir. 1989)(see infra Part III.B.3).                          We pause here,
    however, to assess the state of the law just prior to Johnson to
    demonstrate that Officer Rivera might not be entitled to qualified
    immunity if Shillingford and its progeny had continued to be
    “clearly established law” for the Petta children’s claims.
            As the law stood under Shillingford, McFadden, Coon, Checki,
    Jefferson and Hinojosa (see supra), our Circuit seemed to make an
    analytical        distinction     between         (1)   cases   deciding       whether    a
    defendant       was    entitled   to     qualified        immunity    on   a    claim    of
    excessive force (see, e.g., Jefferson, 817 F.2d at 305; Lynch v.
    810 F.2d 1363
    , 1374 (5th Cir. 1987)) and (2) cases
    determining whether a plaintiff had sufficiently alleged a cause of
    action for excessive force under § 1983 (see, e.g., Shillingford,
    634     F.2d    at    265;   Hinojosa,    834      F.2d    at   1229-30).11       Such    a
          The Hinojosa panel seemed to cite with approval the Seventh
    Circuit’s decision in Gumz v. Morissette, 
    772 F.2d 1395
     (7th Cir.
    1985), which stated that “the ultimate question here is, after all,
    whether the use of force was so egregious as to be constitutionally
    excessive, and the presence of some physical injury is certainly
    relevant to that determination.” Id. at 1401.
          Coon, we should note, is somewhat of an anomaly since it
    addressed both questions, see Coon, 780 F.2d at 1160-61, 1164, but
    distinction is justified in the following sense:                      in the former
    cases,    we    focused    on   the    “objective       reasonableness”        of    the
    defendant’s      actions   in   order     to   further       one    purpose    of    the
    qualified       immunity   defense,      i.e.,    “to        insure   that    [public
    officials] do not hesitate to take actions reasonably calculated to
    advance the public good,” Lynch, 810 F.2d at 1374; in the latter
    cases, we focused, inter alia, on the severity of the alleged
    injury, because the purpose of such threshold requirements in a §
    1983     excessive    force     claim     is     “to     distinguish         potential
    constitutional violations from mere breaches of state tort law.”
    Hinojosa, 834 F.2d at 1229; Shillingford, 634 F.2d at 264.                            It
    would then follow that the “severity” of a particular injury would
    be determinative only in the second group of cases:                   i.e., where we
    are    assessing     whether     a    plaintiff        has    adequately      pled     a
    constitutional violation.            See, e.g., Hinojosa, 834 F.2d at 1230;
    Gumz, 772 F.2d at 1401.
           If such were the analysis in the Fifth Circuit today, the
    Petta children could plausibly argue that Rivera is not entitled to
    assert    the    defense   of   qualified      immunity:           Rivera’s    conduct
    violated “clearly established law” (i.e., Shillingford) because it
    would have been apparent to a reasonable officer that such conduct
    (a high-speed chase, shooting at the fleeing car’s tires) in
    response to a speeding violation (1) was grossly disproportionate
    considered the severity of the plaintiff’s injury under neither.
    to the need presented, (2) was motivated by malice,12 and (3) could
    have caused severe injuries.13           See, e.g., Hinojosa, 834 F.2d at
    1229.     That is the position of the dissent (see infra at ___), as
    we understand it.         Our precedents intervening between 1988 and
    January 15, 1990 (the time of the conduct in question here),
    however,     slightly     alter   the   focus   of   our   qualified    immunity
    analysis (see discussion infra Part III.B.3) and constrain us to
    part company with the dissent.
         In Graham v. Connor, 
    490 U.S. 386
     (1989), the Supreme Court
    held that
                 all claims that law enforcement officers have
                 used excessive force--deadly or not--in the
                 course of an arrest, investigatory stop, or
                 other “seizure” of a free citizen should be
                 analyzed under the Fourth Amendment and its
                 “reasonableness” standard, rather than under a
                 “substantive due process” approach.
    Graham, 490 U.S. at 395.          The Court thus rejected the Johnson v.
    Glick test (see discussion supra Part III.B.1) for those excessive
    force     claims   that   implicate     the   Fourth   Amendment’s     “explicit
          In any event, plaintiffs could have argued that the summary
    judgment record presented genuine factual disputes as to the first
    two elements and that the district court’s denial of Rivera’s
    qualified immunity defense was therefore unreviewable on appeal
    under the collateral order doctrine. See discussion supra Part I;
    see also Johnson v. Jones, 115 S.Ct. at 2156.
          Under the Shillingford analysis, whether Rivera’s conduct in
    actual fact caused “severe injuries” would only be an appropriate
    inquiry in addressing whether the Petta children adequately alleged
    a constitutional violation. See Shillingford, 634 F.2d at 266.
    textual source of constitutional protection against this sort of
    physically intrusive governmental conduct....”       Id.14   The Court
    endorsed the Johnson v. Glick test, however, in the context of an
    Eighth Amendment excessive force claim.      Id. at 398 n.11 (Johnson
    v. Glick test “might be useful in analyzing excessive force claims
    brought   under   the   Eighth   Amendment.”).   Finally,    the   Court
    recognized that the due process clause could have continuing
    viability in excessive force claims not implicating a specific Bill
    of Rights protection.     Graham, 490 U.S. at 395 n.10 (because it is
    unclear whether the Fourth Amendment extends to pretrial detainees,
    “the Due Process Clause protects a pretrial detainee from the use
    of excessive force that amounts to punishment.”).
         Expressly relying on Graham, our en banc Court addressed, in
    Johnson v. Morel, 
    876 F.2d 477
     (5th Cir. 1989), whether the
    plaintiff had stated a Fourth Amendment violation where an officer
    roughly handcuffed him during an investigatory stop, allegedly
    resulting in permanent scars on his wrists.      Johnson, 876 F.2d at
          The Fourth Amendment standard, as explicated by the Court,
    assesses the “objective reasonableness” of an officer’s conduct by
    focusing on
               the facts and circumstances of each particular
               case, including the severity of the crime at
               issue, whether the suspect poses an immediate
               threat to the safety of the officers or
               others, and whether he is actively resisting
               arrest or attempting to evade arrest by
    Id. at 396, citing Tennessee v. Garner, 
    471 U.S. 1
    , 8-9 (1985).
    478-79.   We stated that “[t]here can be a constitutional violation
    only if significant injuries resulted from the officer’s use of
    excessive force.”     Id. at 479-80.15   Notably, we appended the
    following footnote to our “significant injury” holding:
               We think it unlikely that such a significant
               injury will be caused by unnecessary force
               without significant physical injury. However,
               on the facts before us here, we do not decide
               whether a significant but non-physical injury
               would be legally sufficient.
    Id. at 480 n.1.     Finding that the plaintiff had created a fact
    issue as to whether his injuries were “significant,” we allowed him
    to go forward with his excessive force claim.   Id. at 480.
         Judge Rubin, joined by six other Judges, concurred in the
    Court’s judgment, but criticized the majority, inter alia, for
    adding a “significant injury” requirement to the Fourth Amendment
    claim.    Johnson, 876 F.2d at 480-81 (Rubin, J., concurring).16
          We set forth the required elements for an excessive force
    claim based on a violation of the Fourth Amendment as:
         (1) a significant injury, which
         (2) resulted directly and only from the use of force that
         was clearly excessive to the need; and the excessiveness
         of which was
         (3) objectively unreasonable.
    Johnson, 876 F.2d at 480. At the same time, we “overrule[d] all
    previous decisions of the circuit to the contrary.” Id.
          Significantly for our purposes, Judge Rubin remarked that
    “[e]ven under the stringent Fourteenth Amendment ‘shock the
    conscience’ test, a plaintiff could recover for a policeman’s use
    of excessive force without demonstrating that he had suffered
    severe, permanent, or physical injuries.” Johnson, 876 F.2d at 481
    (Rubin, J., concurring)(emphasis added). Judge Rubin cited Checki
    Additionally, Judge Rubin dissented from the majority opinion
    insofar as it read Graham to bar the plaintiff’s due process claims
    for abuse that occurred before and after the arrest.               Id. at 482-
    84; see Graham, 490 U.S. at 394-95 & n.10.
         Johnson v. Morel remained the law in this Circuit until Hudson
    v. McMillian, 
    503 U.S. 1
    , 7-8 (1992), although itself in the Eighth
    Amendment context, overruled by implication Johnson’s “significant
    injury” requirement.17        See, e.g., Harper v. Harris County, Texas,
    21 F.3d 597
    , 600 (5th Cir. 1994)(“We now hold that the Johnson
    standard is no longer valid in the wake of Hudson v. McMillian
    ....”).     Between July 5, 1989 and February 25, 1992, however,
    Johnson    v.   Morel   was   “clearly     established   law”    regarding   an
    excessive force claim brought under the Fourth Amendment.               As we
    have noted above, this is the relevant “legal window” within which
    we must look to determine whether Officer Rivera’s actions on
    January 15, 1990 were “objectively reasonable.”
         The    most   significant     development     in    our    Circuit’s    law
    regarding excessive force claims and qualified immunity came,
    v. Webb (see supra Part III.B.1) for the proposition that non-
    physical injuries were cognizable under the due process clause.
    Id. at 481 n.9.
          Reversing the Fifth Circuit, the Supreme Court in Hudson held
    that a prisoner was not required to prove “significant injury” as
    a prerequisite to his Eighth Amendment excessive force claim;
    instead, the Court adopted the Whitley v. Albers (see supra note 7)
    “malicious and sadistic” standard for all Eighth Amendment
    excessive force claims. Hudson, 503 U.S. at 6-7.
    ironically,18 almost three years after the Johnson v. Morel window
    closed, in Dunn v. Denk, 
    54 F.3d 248
     (5th Cir. 1995), rev’d en
    79 F.3d 401
     (5th Cir. 1996).       In Dunn, a police officer
    arrested the plaintiff in January, 1990, and in doing so allegedly
    threw her facedown in a ditch, put his knee in the small of her
    back, handcuffed her, pulled her up by her arms and placed her in
    his squad car.   Dunn, 54 F.3d at 249.   The plaintiff, who was on a
    weekend pass from a mental institution and was being driven home by
    her friend when they were stopped, alleged she suffered only minor
    bruises but serious psychological injury.       Id.     She sued the
    officer under § 1983 for malicious prosecution and use of excessive
    force;    the jury found for her on the latter claim.   Id.
         The Dunn panel found that the officer was not entitled to
    qualified immunity, because “[i]t was clearly established before
    January 1990, when Denk arrested Dunn, that both physical and
    psychological injuries were compensable in civil rights actions.”
    Id. at 250, citing Hinshaw v. Doffer, 
    785 F.2d 1260
     (5th Cir. 1986)
    and Keyes v. Lauga, 
    635 F.2d 330
     (5th Cir. 1981).             The Dunn
    majority thus included “significant injury” as a component of the
    restrospective, “clearly established law” prong of the qualified
          Ironic, because normally we would look only to case law in
    effect on January 15, 1990, to determine what law was “clearly
    established” at that time. The two decisions in Dunn v. Denk are
    relevant, however, because they provide a retrospective assessment
    of what “clearly established law” was regarding a Fourth Amendment
    excessive force claim in January, 1990. See Dunn, 79 F.3d at 402;
    54 F.3d at 250.
    immunity analysis:
                 Although no longer required, at the time of
                 this incident significant injury was a
                 necessary element of an excessive force claim.
                 Accordingly,   to   defeat  Denk’s   qualified
                 immunity defense Dunn was obliged to prove a
                 significant injury.
    Dunn, 54 F.3d at 249 (emphasis added); see Siegert, 500 U.S. at
    231; Rankin, 5 F.3d at 108-09 & n.7; see also discussion supra Part
    III.B.1.      Although   he   dissented,   Judge   Barksdale,   like   the
    majority, viewed the “significant injury” requirement as an element
    of the “clearly established law” guiding the officer’s conduct at
    the time of the incident.19     He simply disagreed with the majority
    that, under Johnson in 1990, it was “clearly established” that the
    plaintiff had a constitutional right to be free from non-physical,
    psychological injury resulting from excessive force.        See Dunn, 54
    F.3d at 256 (Barksdale, J., dissenting).
         A fragmented en banc Court vacated the Dunn panel opinion and
    found the officer entitled to qualified immunity.           See Dunn v.
    79 F.3d 401
    , 403 (5th Cir.)(en banc), cert. denied 117 S.Ct
    61 (1996).    Eleven judges joined Part I of Judge King’s “majority”
          Judge Barksdale initially observed: “It goes without saying
    that, to avoid a qualified immunity defense, a plaintiff must claim
    a constitutional violation that was clearly established at the time
    of the alleged wrongful conduct.” Dunn, 54 F.3d at 253 (Barksdale,
    J., dissenting). He later stated that “even assuming arguendo that
    nonphysical injury can be ‘significant’ under Johnson, the question
    remains whether this rule was ‘clearly established’ at the time of
    the incident in issue, so as to place Officer Denk outside the
    protection of qualified immunity.” Id. at 255.
    opinion, six of those judges by way of separate concurrence.20
    While     conceding   that   under   Hudson   v.   McMillian,   supra,   the
    plaintiff’s injury may well have satisfied present constitutional
    standards, see 79 F.3d at 402-03, Judge King continued her analysis
    by “look[ing] to the state of the law when the arrest at issue
    occurred.”     Id. at 403, citing Harper, 21 F.3d at 601.21          Judge
    King went on to state:
                 Given the explicit language of Johnson, and
                 its footnote 1 in particular, we conclude that
                 the law at the time of this arrest was
                 uncertain regarding whether “a significant
                 injury will be caused by unnecessary force
                 without significant physical injury.” On the
                 present facts, Denk was entitled to qualified
                 immunity from the claims asserted in this
          Judge King’s opinion was joined by Judges Garwood,
    Higginbotham, Davis and Duhé. Judge Barksdale concurred separately
    in Part I of Judge King’s opinion, but dissented to Part II; he
    was joined by Judges Jolly, Jones, Smith, Garza and DeMoss. Judge
    Reavley, joined by Chief Judge Politz and Judges Wiener, Benavides,
    Stewart, Parker and Dennis, dissented. Judge Dennis also wrote a
    separate dissent. When we have sifted through the wreckage, it is
    clear that Part I of the Dunn en banc decision commanded a majority
    of the Court (eleven judges).
          Thus, it seems clear that Judge King’s analysis was directed
    towards the second prong of the qualified immunity analysis, i.e.,
    whether the officer’s actions were “objectively reasonable” under
    “clearly established law” at the time of the incident in question.
    As support for that conclusion, we note that Judge King cited to
    the part of Harper v. Harris County, Texas that emphasized “the
    objective reasonableness of a government official’s conduct must be
    measured with reference to the law as it existed at the time of the
    conduct in question.” Harper, 21 F.3d at 601 (emphasis added).
    Later on that same page, the Harper panel chided the district court
    for “not consider[ing] the seriousness of the alleged injuries in
    determining whether the officer’s conduct was objectively
    reasonable.” Id. Such a qualified immunity analysis mirrors that
    employed by both the panel and en banc decisions in Dunn.
    Dunn, 79 F.3d at 403, quoting Johnson, 876 F.2d at 480 n.1.22
          This holding demonstrates the same qualified immunity analysis
    as that employed by the Dunn panel majority and dissent, supra.
    Judge King relied on the significance of the injury as, using the
    defendant’s   phrase,    an   “objective,   validating    event    of   the
    reasonableness of force used in making an arrest.”         Dunn, 79 F.3d
    at 403.    The dissent to the en banc decision confirms this view.
    In arguing that the majority “distort[ed] the law of qualified
    immunity,” the dissent advocated a focus, not on the results of the
    officer’s actions (i.e., whether they caused “significant injury”)
    but rather on the reasonableness of the actions themselves:
               Qualified immunity is concerned only with the
               reasonableness of an officer’s actions. Once
               an officer uses objectively unreasonable force
               to effect an arrest, he loses his qualified
               immunity, whether the other elements of an
               excessive force claim are clearly established
               or not.
    Dunn, 79 F.3d at 405, 407 (Reavley, J., dissenting).           The dissent,
    therefore, did not consider the severity of injury a component of
    the    “clearly    established   law”   determining      the    “objective
    reasonableness” of an officer’s actions.          The dissent defined
    “clearly established law” at a higher level of generality than the
          We note that as of this date, this Court has never squarely
    held that non-physical injury is sufficient to establish a
    violation of the Fourth Amendment.    A recent panel declined to
    reach that very issue. See Ikerd v. Blair, 
    101 F.3d 430
    , 434 &
    n.10 (5th Cir. 1996).
    majority, i.e., the law clearly proscribes the use of objectively
    unreasonable and excessive force by an arresting officer.                   Id. at
    405.        Judge King criticized the dissent’s position as having “no
    support in the case law.”          Id. at 403 n.1.
           Thus,     emerging   from   the   en   banc   decision   in   Dunn    is   a
    qualified immunity analysis that, at least for Fourth Amendment
    excessive force claims, differs slightly from the analysis employed
    in cases such as Coon, Jefferson and Lynch.             See discussion supra
    Part III.B.1.       The principal difference, as we appreciate it, is
    that Dunn relies on the severity of injury not only in defining a
    constitutional tort under present law, but also as an “objective,
    validating” factor in assessing the “objective reasonableness” of
    an officer’s conduct.23        Irrespective, however, of the difference
    between Dunn’s analysis and the qualified immunity cases going
    before it, Dunn currently governs in this Circuit a qualified
          Compare Dunn, 79 F.3d at 403 (relying on severity of injury
    as   “objective,   validating   event”    in  assessing   objective
    reasonableness of officer’s actions), with Jefferson, 817 F.2d at
    305 (assessing school officials’ defense of qualified immunity
    without considering severity of plaintiff’s injury ); Lynch, 810
    F.2d at 1375-76 (relying on severity of injury as one of three
    factors in    determining   whether    officers’  conduct   assumed
    constitutional dimensions); Coon, 780 F.2d at 1163 (“[u]se of
    excessive force in making an arrest violates clearly established
    rights, and the doctrine of qualified immunity therefore does not
    shield an officer who uses excessive force”; addressing qualified
    immunity defense without considering severity of plaintiff’s
    injuries). See also Anderson, 483 U.S. at 639-40 (intended purpose
    of qualified immunity defense is to allow officers “reasonably [to]
    anticipate when their conduct may give rise to liability for
    damages.”)(emphasis added).
    immunity analysis in the context of a Fourth Amendment excessive
    force claim.24
         Dunn does not end our inquiry, however.      Dunn addressed a
    claim for excessive force grounded in the Fourth Amendment.     See
    Dunn, 79 F.3d at 402; 54 F.2d at 249.    As we observed, supra, the
    district court in this case dismissed the Petta children’s Fourth
    Amendment claims on finding that they had not been “seized.”    See
    supra note 2 and accompanying text.   Their remaining claims, then,
    are grounded in the due process clause of the Fourteenth Amendment.
    See Graham, 490 U.S. at 395 n.1.25      The question remains, then,
          We appreciate that Dunn focuses on a narrow legal window
    (June 5, 1989 to February 25, 1992) and will have increasingly
    limited applicability over the passage of time. This is doubly
    true insofar as Hudson v. McMillian may have foreclosed using the
    severity of injury as a determinative factor in delineating
    constitutional violations. See, e.g., Dunn, 79 F.3d at 402-03
    (“Counsel for Denk correctly concedes that whatever injury
    requirement (if any) may remain after Hudson respecting a claim for
    excessive force in arrest is satisfied here.”).
          In view of the foregoing statement, we find it difficult to
    understand the dissent’s assertion that
         the majority fails to acknowledge clearly that an
         officer’s excessive, unreasonable and outrageous use of
         deadly force against helpless and innocent bystanders
         such as the Petta children violates their Fourteenth
         Amendment substantive due process rights; and that,
         otherwise, innocent bystanders would be shorn of all
         constitutional rights and have less protection under the
         constitution and § 1983 tha[n] prisoners, arrestees, and
    See infra at ___. On the contrary, we explicitly acknowledge that
    where a plaintiff’s excessive force claim, whether he be a
    whether Dunn also affects a Fourteenth Amendment excessive force
    claim arising during an attempted but ultimately unsuccessful26
    arrest.        Under the specific facts of this case, we must answer in
    the affirmative; therefore, we find that in January, 1990, the
    Petta children did not have a “clearly established” due process
    right     to    be    free   from   excessive   force    resulting    in    purely
    psychological harm.
         Our inquiry here is very narrow.               We are not asking whether
    the Petta children’s psychological injuries were redressable under
    the Fourteenth Amendment in January, 1990.               We are merely asking
    whether a § 1983 plaintiff at that time had a clearly established
    right under          the   Fourteenth   Amendment   to   be   free   from   purely
    emotional harm resulting from an officer’s use of excessive force.
    We have already demonstrated (see discussion supra Part III.B.3)
    prisoner, arrestee, detainee, or an innocent bystander of tender
    years, falls outside the specific protections of the Bill of
    Rights, that plaintiff may still seek redress under the due process
    clause of the Fourteenth Amendment. See Graham, 490 U.S. at 395
    n.1. The Petta children have done so, and nothing we say here
    detracts one iota from their constitutional right to do so. The
    dissent’s broad assertions, however, beg the question whether the
    Petta children’s due process claims fall within the parameters of
    our caselaw defining the scope of their constitutional rights.
          “Unsuccessful” in the sense that the excessive force (i.e.,
    shooting at the tires and driving at high speeds) did not result in
    the arrest. Petta’s arrest occurred subsequent to the chase and
    apparently did not involve excessive force. See Hinojosa, 834 F.2d
    at 1229 n.7 (“While Hinojosa was arrested, there was no evidence
    that Jones’ pointing of his gun was done to effectuate Hinojosa’s
    arrest.”).   In any case, Petta does not anywhere allege that
    excessive force was used against her or her children when she
    finally surrendered at her apartment.
    that such a right was not clearly established in January, 1990,
    under the Fourth Amendment.      What we hold here is simply that the
    same right was equally “unclear” (for qualified immunity purposes)
    under the Fourteenth Amendment.           We do so for essentially two
    reasons:   (1) our cases following Graham v. Connor do not clearly
    distinguish between Fourth and Fourteenth Amendment analyses in
    this context;   we are thus persuaded that Johnson v. Morel and Dunn
    v. Denk (see discussion supra Part III.B.3), although admittedly
    addressing    the   Fourth    Amendment    right,   also    affected27     the
    Fourteenth Amendment right to be free from excessive force; and,
    (2) under the particular facts here, we see no principled reason
    for drawing an analytical distinction between the Petta children’s
    due process claim and an arrestee’s Fourth Amendment claim, given
    the substantially similar concerns implicated by the two claims
    (e.g., the right to be free from excessive force in an arrest
    situation and the need for a police officer to use reasonable force
    in effecting arrests).
         Prior to Graham, no consistent attempt was made to cabin
    excessive force claims under the Fourth, Eighth or Fourteenth
    Amendments.     Thus,   the   Shillingford    standard     was   applied    to
    excessive force cases regardless of which constitutional amendment
          “Affected,” in the sense that Johnson (as interpreted by
    Dunn) interjected into both the Fourteenth and Fourth Amendment
    excessive force claims “uncertainty” about whether purely non-
    physical injury rose to the level of a constitutional violation.
    See infra; see also Dunn, 79 F.3d at 403.
    was implicated.       See, e.g., Brumfield v. Jones, 
    849 F.2d 152
    , 156
    (5th Cir. 1988)(Fourth Amendment); Lynch, 810 F.2d at 1375 (due
    process clause); Jamieson v. Shaw, 
    772 F.2d 1205
    , 1210 (5th Cir.
    1985)(Fourth Amendment).         See also Stevens v. Corbell, 
    832 F.2d 884
    ,    889   (5th   Cir.    1987)   (noting    similarity     of    Shillingford
    standard to Whitley Eighth Amendment standard).                     Following the
    Supreme Court’s guidance in Graham, see 490 U.S. at 393-95, one
    would   have   expected      three   distinct    lines   of    excessive    force
    jurisprudence,       i.e.,   under   the    Fourth,   Eighth    and    Fourteenth
    Amendments.      To a certain extent, our post-Graham cases have
    distinguished among the respective constitutional amendments in
    analyzing excessive force claims.           See, e.g., Colston v. Barnhart,
    No. 96-40634, 
    1997 WL 741806
    , at *3 (5th Cir. Nov. 19, 1997); Spann
    v. Rainey, 
    987 F.2d 1110
    , 1115-16 & n.8 (5th Cir. 1993); King v.
    974 F.2d 653
    , 656-57 (5th Cir. 1992).                   We can discern,
    however, no clear “line” of Fourteenth Amendment excessive force
    cases following Graham that would clearly establish a different set
    of standards for such claims.
           In fact, our review of Fifth Circuit case law following Graham
    demonstrates a tendency to “blur” the lines between Fourteenth
    Amendment and either Fourth or Eighth Amendment excessive force
    standards, depending upon the particular factual context.                     For
    example, we held in Valencia v. Wiggins, 
    981 F.2d 1440
    , 1446 (5th
    Cir. 1993), that a pretrial detainee’s excessive force claim,
    although technically grounded in the Fourteenth Amendment, was
    properly analyzed under Eighth Amendment standards.              In assessing
    “what standard of due process” to apply to the plaintiff’s claim
    that a jail official had subjected him to excessive force in
    quelling a disturbance, we stated:
                [W]e are guided by the standard announced in
                Whitley and Hudson.       While these cases
                specifically addressed claims of excessive use
                of force brought by convicted prisoners, it is
                impractical to draw a line between convicted
                prisoners [subject to the Eighth Amendment]
                and pretrial detainees [subject to the
                Fourteenth Amendment] for the purpose of
                maintaining jail security.
    Id.   at   1445-46   (brackets   added).     We   noted   that    the   Eighth
    Amendment standards were useful in this particular Fourteenth
    Amendment    context   because   of   the   similar   concerns    implicated
    “whenever guards use force to keep order.”            Id. at 1446, quoting
    Hudson, 503 U.S. at 6.      See also Jackson v. Culbertson, 
    984 F.2d 699
    , 700 (5th Cir. 1993); Bender v. Brumley, 
    1 F.3d 271
    , 277-78
    (5th Cir. 1993); Nerren v. Livingston Police Department, 
    86 F.3d 469
    , 472-73 (5th Cir. 1996)(cases following Valencia and applying
    Eighth Amendment standards to excessive force claims of arrestees
    and pretrial detainees).
          Similarly, we have applied Fourth Amendment standards to
    excessive    force claims that may have in part implicated the due
    process clause.      For example, in Mouille v. City of Live Oak, 
    918 F.2d 548
     (5th Cir. 1990), we addressed the excessive force claims
    of   several    plaintiffs   whom   a    police   officer   had   allegedly
    terrorized when he burst into an office building in search of a
    suspect.    Id. at 550.      Only one of the plaintiffs was arrested;
    the others were mere bystanders subjected to the officer’s violent
    behavior.      Id.   We addressed all of the excessive force claims
    under the Fourth Amendment, observing that
                [t]he Supreme Court has stated that ‘all
                claims that law enforcement officers have used
                excessive force--deadly or not--in the course
                of an arrest, investigatory stop, or other
                “seizure” of a free citizen should be analyzed
                under the Fourth Amendment....’
    Id., quoting Graham, 490 U.S. at 395.        We did not consider whether
    all of the plaintiffs were “seized” within the meaning of the
    Fourth Amendment.     It is at least arguable, however, that some of
    the plaintiffs in Mouille were not “seized” and that, therefore,
    their claims would have been more properly analyzed under the due
    process clause.      See Brower v. Inyo County, 
    489 U.S. 593
    , 596-97
    (1989)28; Graham, 490 U.S at 395 n.10.       See also Ikerd, 101 F.3d at
    433 n.6 (applying Fourth Amendment standards to excessive force
          For example, plaintiff Laurie Rollins was allegedly pushed by
    the police officer into a wall as he searched for the suspect
    Mouille. Mouille, 918 F.2d at 550. Plaintiff Grace Rollins was
    not touched or otherwise targeted by the officer at all; she only
    claimed that the officer had “terrified” her by abusing her
    daughter. Id. at 554. Arguably, both plaintiffs’ claims did not
    implicate the Fourth Amendment because they were not “seized” by
    the officer, i.e., the officer did not detain either plaintiff
    “through means intentionally applied.” See Brower, 489 U.S. at
    596-97.   The officer apparently did not intend to arrest or
    question either plaintiff.
    claim where police officer grabbed child’s arm; child’s father, and
    not the child herself, was the object of the arrest); Stroik v.
    35 F.3d 155
    , 156-57 (5th Cir. 1994)(applying Fourth
    Amendment to excessive force claim where hostage was shot by police
    officer as officer fired at her captor).
         It is not our intention, however, to find fault with cases
    like Mouille, Ikerd and Stroik.     We simply observe that, just as we
    have sometimes used the Eighth Amendment to guide our due process
    standards in certain excessive force cases, we have likewise used
    Fourth Amendment   standards   in    cases   that,   at   least   in   part,
    implicated substantive due process.      Such a practice seems to us
    driven partly by precedent and partly by policy concerns.
         As we have already discussed (see supra Part III.B.1), the
    excessive force claim originated in the undifferentiated context of
    the due process clause, “quite apart from any ‘specific’ of the
    Bill of Rights.”   Johnson v. Glick, 
    481 F.2d 1028
    , 1032 (2nd Cir.
    1973).    We had no reason to differentiate among the amendments
    until Graham29 in 1989;   thus, it comes as little surprise that the
          A literal application of Graham to all claims of excessive
    force used “in the course of an arrest, investigatory stop or other
    ‘seizure,’” 490 U.S. at 395 (emphasis added), could result in
    application of the Fourth Amendment to situations partially covered
    by the due process clause. For example, in Hinojosa, (supra Part
    III.B.3) the police officer allegedly used excessive force (waving
    a gun in the plaintiff’s face) “in the course of” an arrest; we
    applied due process standards because the excessive force used was
    separate from, and did not result in, the plaintiff’s arrest. See
    Hinojosa, 834 F.2d at 1229 n.7. A strict adherence to Graham’s
    language, however, would mandate application of the Fourth
    standards continue to “overlap” somewhat.              See, e.g., Nerren, 86
    F.3d at 473 n.20 (noting “overlap” of arrestee’s Fourth Amendment
    rights with his due process rights); Valencia, 981 F.2d at 1449
    n.44 (noting “continued convergence of the various tests under the
    Fourth,    Eighth     and   Fourteenth    Amendments   for   maltreatment   of
    arrestees, detainees or convicted prisoners, respectively.”). Such
    an “overlap” is borne out, in our view, by cases such as Harper,
    where     we   held   that    Hudson     v.   McMillian’s    removal   of   the
    “significant injury” requirement from the Eighth Amendment standard
    also affected the Johnson v. Morel Fourth Amendment standard.               See
    Harper, 21 F.3d at 600;        see also Oliver v. Collins, 
    914 F.2d 56
    59 n.1 (5th Cir. 1990)(pre-Hudson, looking to Johnson v. Morel and
    its Fourth Amendment standard “in determining whether a particular
    injury is of sufficient magnitude to invoke Eighth Amendment
         Underlying policy concerns may also explain the apparent
    “overlap.”     In cases such as Valencia and its progeny, supra, we
    Amendment in Hinojosa. Indeed, it would seem that our decisions in
    Mouille, Stroik and Ikerd, supra, adopt that approach. While we
    agree that the quoted language from Graham, supra, does support
    such a broad application of the Fourth Amendment, we merely observe
    here that footnote 10 in Graham could arguably be read to limit
    application of Fourth Amendment standards to those situations in
    which an officer has “by means of physical force or show of
    authority, ... in some way restrained the liberty of a citizen.”
    Graham, 490 U.S. at 395 n.10, citing Terry v. Ohio, 
    392 U.S. 1
    , 19
    n.16 (1968) and Brower, 489 U.S. at 596. We submit that footnote
    10 represents a narrower view of the applicability of the Fourth
    Amendment than the language quoted in Mouille, supra. See also
    Rankin, 5 F.3d at 107 n.3.
    borrowed Eighth Amendment standards in treating excessive force
    claims under the due process clause.         We did so because the
    concerns vindicated by a convicted prisoner’s excessive force claim
    under the Eighth Amendment and those vindicated by a pretrial
    detainee’s excessive force claim under the due process clause are
    largely the same:     the need to guide the proper application of
    force in maintaining jail security.       See Valencia, 981 F.2d at
    1446.     We therefore adjudged it “impractical” to adopt different
    criteria for pretrial detainees, even though their claims are
    brought under the Fourteenth Amendment.      Id.
         The same reasoning applies to the Petta children’s claims. We
    find it impractical and illogical to draw a line between their due
    process claims and those of an arrestee who claims, under the
    Fourth Amendment, that a police officer has used excessive force in
    effecting his arrest.    Whether Officer Rivera’s use of force was
    “objectively    reasonable”   largely   implicates   Fourth    Amendment
    concerns,30 even though the fortuity of his bullet going astray
    removed this case from the purview of “seizure” cases.        See Brower,
    489 U.S. at 596-97.
         This could well mean that the present constitutional standards
          For example, were we to weigh the reasonableness of Rivera’s
    shooting at Petta’s car and engaging her in a high speed chase, we
    would be interested, inter alia, in the severity of Petta’s crime,
    in whether her flight “pose[d] an immediate threat to the safety of
    the officers or others,” and whether Petta was “actively resisting
    arrest or attempting to evade arrest by flight.” See Graham, 490
    U.S. at 396, citing Tennessee v. Garner, 471 U.S. at 8-9.
    for   the   Petta   children’s   claims   are   governed   by   the   Fourth
    Amendment “reasonableness” standard of Tennessee v. Garner (see
    supra notes 14 & 29).     But, as we have observed above (supra Part
    III.A.1), we need not decide that question today.                We simply
    observe that our precedents, such as Johnson v. Morel, supra, and
    Dunn v. Denk, supra, interjected as much uncertainty into our
    Fourteenth Amendment jurisprudence as into our Fourth Amendment
    jurisprudence, regarding whether a purely non-physical injury rose
    to the level of a constitutional violation.31
          We do not quarrel with the dissent’s assertion that the Petta
    children need not “point to a precisely and explicitly analogous
    case that existed prior to an officer’s violation of the
    plaintiff’s constitutional rights” in order to defeat Officer
    Rivera’s claim of qualified immunity. See infra at ___; see also
    discussion supra Part II, citing Anderson, 483 U.S. at 640. Again,
    however, that statement merely begs the question whether Officer
    Rivera’s   actions   violated    constitutional   rights   “clearly
    established” at the time of those actions. The dissent fails to
    consider that our precedent was not only unclear about the
    parameters of a Fourteenth Amendment excessive force claim, but
    that it also failed to clearly distinguish between Fourth and
    Fourteenth Amendment standards for such claims. See discussion
    supra Parts III.B.3 & III.B.4.
         More importantly, however, the dissent disregards the effect
    on the plaintiffs’ due process rights of our en banc decisions in
    Johnson v. Morel, supra, and Dunn v. Denk, supra, merely finding
    the reasoning in those cases “inapposite” because they were decided
    under the Fourth Amendment. See infra at ___. Our discussion in
    Part III.B.4 demonstrates that the excessive force claim did not
    originate, nor does it presently exist, in neat, hermetically-
    sealed categories according to which constitutional amendment the
    claim implicates. Instead, cases arising under one amendment have
    consistently affected the parameters of rights that, while arising
    under different constitutional amendments, implicate similar policy
    concerns.   See Part III.B.4; see also Harper, 21 F.3d at 600;
    Valencia, 981 F.2d at 1445-46. The dissent does not consider that
    phenomenon and thus fails to appreciate both the practical and
    theoretical underpinnings of our excessive force jurisprudence.
          We have observed before that the qualified immunity analysis
    partakes of a somewhat “schizophrenic” nature.                   See Rankin, 5 F.3d
    at   109.         This   case    aptly     demonstrates   that    phenomenon.   In
    assessing Officer Rivera’s defense of qualified immunity, we must
    assess the law as it stood some eight years ago, even when our case
    law may have now moved on.           We must therefore hold that in January,
    1990,       the     Petta       children     had   no     “clearly    established”
    constitutional right under the due process clause to be free from
    a police officer’s use of excessive force where the only injuries
    allegedly suffered were psychological.               We therefore find that the
    district court erred in denying Officer Rivera’s motion for summary
    judgment based on the defense of qualified immunity.
          For the foregoing reasons, we REVERSE the judgment of the
    district court and RENDER judgment, granting Officer Rivera’s
    motion for summary judgment based on the defense of qualified
                                    REVERSED AND RENDERED