Henderson v. Simms

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

VINCENT HENDERSON; DARYELLE

REXRODE; JOHN CALELLA,

Plaintiffs-Appellants,

v. No. 99-1706

STUART O. SIMMS; RICHARD LANHAM,

SR.; WILLIAM O. FILBERT,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Frederic N. Smalkin, District Judge.

(CA-99-949-S)

Argued: April 6, 2000

Decided: July 28, 2000

Before LUTTIG and WILLIAMS, Circuit Judges, and

Gerald Bruce LEE, United States District Judge for the

Eastern District of Virginia, sitting by designation.

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Affirmed by published opinion. Judge Williams wrote the opinion, in

which Judge Luttig and Judge Lee joined.

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COUNSEL

ARGUED: Douglas R.M. Nazarian, HOGAN & HARTSON, L.L.P.,

Baltimore, Maryland, for Appellants. Andrew Howard Baida, Assis-

tant Attorney General, Baltimore, Maryland, for Appellees. ON

BRIEF: Ralph S. Tyler, HOGAN & HARTSON, L.L.P., Baltimore,

Maryland; Eugene J. Yannon, Bowie, Maryland, for Appellants. J.

Joseph Curran, Jr., Attorney General of Maryland, Lawrence P.

Fletcher-Hill, Assistant Attorney General, Baltimore, Maryland, for

Appellees.

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OPINION

WILLIAMS, Circuit Judge:

Appellants Vincent Henderson, Daryelle Rexrode, and John Calella

filed a 42 U.S.C.A. § 1983 (West Supp. 1999) suit in the United

States District Court for the District of Maryland against Appellees

Stuart O. Simms, Richard A. Lanham, Sr., and William O. Filbert in

their individual capacities. Appellants sought damages arising out of

their summary arrests and reincarceration, pursuant to retake warrants

for escapees, following their release from incarceration on mandatory

supervision. The district court dismissed Appellants' suit on the

ground of qualified immunity, reasoning that Appellees did not vio-

late Appellants' clearly established constitutional rights under the

Fourth or Fourteenth Amendment. We hold that Appellees' arrests of

Appellants pursuant to retake warrants for escapees did not violate

Appellants' Fourth Amendment rights. We further hold that Appel-

lees did not violate Appellants' Fourteenth Amendment rights in fail-

ing to provide Appellants a hearing to challenge their arrests and

reincarceration because Appellees reasonably thought that Appellants

were mistakenly released prisoners with no cognizable interest in

remaining at liberty. We therefore affirm the district court's dismissal

of Appellants' complaint.

I.

Because this case is on appeal from a district court's order dismiss-

ing Appellants' complaint, we take the following facts as alleged in

the complaint as true. See S.P. v. City of Takoma Park, 134 F.3d 260,

264 (4th Cir. 1998). Vincent Henderson, Daryelle Rexrode, and John

Calella were convicted in Maryland state court of violating various

provisions of the Maryland criminal law. All three served their

2

respective criminal sentences, less deductions for diminution credits

earned, and were released from incarceration on"mandatory supervi-

sion," a release status similar to parole. Henderson was released on

July 7, 1997. Rexrode was released on March 28, 1996. Calella was

released on December 11, 1995. Each complied with the terms of his

release from the time of his release through the filing of the instant

complaint.

On March 9, 1998, the Court of Appeals of Maryland decided the

case of Beshears v. Wickes, 706 A.2d 608 (Md. 1998). Wickes

involved the interpretation of the Maryland statutes governing the cal-

culation of sentence diminution credits. Sometime between March 9,

1998 and May 1, 1998, state officials Stuart O. Simms, Richard A.

Lanham, Sr., and William O. Filbert1 decided that their understanding

of the rule in Wickes should be applied to recalculate the statutory

diminution credits of persons, including Appellants, who had been

released prior to the decision in Wickes. Simms and Lanham, acting

under color of state law, ordered that the release dates of Henderson,

Rexrode, and Calella be recalculated. As a result of these recalcula-

tions, Simms and Lanham authorized and established new release

dates for Appellants that fell far into the future.

Appellees then decided to implement their interpretation of Wickes

by arresting and reincarcerating previously released persons, such as

Appellants, whose revised, post-Wickes release dates had not yet

arrived. Acting pursuant to Md. Ann. Code art. 27,§ 682(d) (1996)

(the Maryland retake-warrant statute),2 Filbert executed and issued

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1 At the time of the complaint, Simms was the Secretary of the Mary-

land Department of Public Safety and Correctional Services, Lanham

was the Commissioner of the Maryland Division of Correction, and Fil-

bert was the Warden of the Maryland Reception, Diagnostic and Classifi-

cation Center.

2 Section 682(d) provides as follows:

(1) The warden or superintendent of each institution or a desig-

nee of the warden or superintendent may issue retake warrants

for the apprehension and return of escapees.

(2) A copy of the retake warrant shall be forwarded to the

office of the State's Attorney for the county from which the

escape was made.

3

warrants for the arrests of Henderson, Rexrode, and Calella. The war-

rants were each titled "Retake Warrant for Arrest and Detention of

Escaped Prisoner," although Appellees had actual knowledge that

none of Appellants had in fact escaped. In fact, the warrant specifi-

cally noted that it was being issued "as a result of a court decision

requiring a recalculation of the offender's term of confinement" and

would expire on the revised date recalculated for that prisoner. (J.A.

at 19.) Appellees, acting under color of state law, ordered that Appel-

lants be arrested pursuant to the § 682(d) warrants issued and signed

by Filbert.

Pursuant to these § 682(d) warrants, Appellees directed and caused

armed police officers to arrest each Appellant at his home or place of

work on or about May 1, 1998, and then had each incarcerated.

Appellees did not afford Appellants a hearing (either pre-arrest or

post-arrest) to challenge the basis or legitimacy of their arrests or

incarceration. Following his arrest, on May 8, 1998, Henderson filed

a petition for writ of habeas corpus in the Circuit Court for Baltimore

County. On May 14, the court granted the petition, denied Appellees'

motion for a stay, and ordered Henderson released. On May 18, the

Court of Appeals of Maryland granted Appellees' petition for certio-

rari review of the circuit court's order releasing Henderson and denied

Appellees' motion for a stay. Appellees then released Rexrode and

Calella from incarceration. Following briefing and argument, the

Court of Appeals of Maryland affirmed the circuit court's grant of

habeas relief to Henderson, on the ground that Appellees had misin-

terpreted the Court of Appeals's prior decision in Wickes. See Secre-

tary, Dep't of Pub. Safety & Correctional Servs. v. Henderson, 718

A.2d 1150, 1157-58 (Md. 1998). As a result of Appellees' actions,

Henderson was incarcerated from on or about May 1, 1998 to May

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(3) Any sheriff or police officer authorized to serve criminal

process, to whom a warrant for the retaking of an escapee shall

be delivered, is authorized and required to execute such warrant

in accordance with the directions contained therein. A sheriff or

police officer making an arrest under this subsection shall

promptly notify the Division of Correction of the arrest.

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

4

14, 1998 and Rexrode and Calella were incarcerated from on or about

May 1, 1998 to May 18, 1998.

On April 6, 1999, Appellants filed suit under 42 U.S.C.A. § 1983

(West Supp. 1999) in the United States District Court for the District

of Maryland seeking damages as a result of their arrests and reincarc-

eration. The complaint alleged that Appellees violated Appellants'

clearly established rights under the Fourth and Fourteenth Amend-

ments by arresting and reincarcerating Appellants without probable

cause and without a hearing following Appellees' determination that

Appellants had been prematurely released from incarceration on man-

datory supervision. Appellees filed a motion to dismiss. By memoran-

dum opinion and order dated May 14, 1999, the district court granted

Appellees' motion to dismiss the complaint in its entirety on the

ground that Appellees were entitled to qualified immunity. The dis-

trict court reasoned that Appellees' actions did not violate Appellants'

clearly established procedural due process rights under the Fourteenth

Amendment because Appellees "reasonably could have believed that

[Appellants] had no protected liberty interest that demanded pre-

deprivation notice and a hearing" and did not violate Appellants'

clearly established rights under the Fourth Amendment because

Appellees "reasonably could have believed that escape from custody

was the closest model for obtaining legal process to effect the retakes

required by Maryland law, there being no statute of Maryland cover-

ing this unlikely situation." (J.A. at 117-18.) On May 19, 1999,

Appellants filed a timely notice of appeal.

II.

Before us, Appellants make two arguments why the district court

judgment should be reversed. First, Appellants argue that because

Appellees knew that Appellants had not escaped, the retake warrants

lacked probable cause and were invalid, and, therefore, Appellants'

arrests violated their clearly established rights under the Fourth

Amendment to be secure from unlawful arrest. Second, Appellants

argue that because the Fourteenth Amendment has long required that

a decision to revoke a former inmate's release status be accompanied

by a corresponding opportunity to challenge the revocation, Appel-

lees' denial of a hearing violated Appellants' clearly established

rights under the Fourteenth Amendment. We review de novo a district

5

court's grant of a motion to dismiss on the ground of qualified immu-

nity. See S.P. v. City of Takoma Park, 134 F.3d 260, 265 (4th Cir.

1998).

"Qualified immunity is an accommodation by the courts to the con-

flicting concerns of, on one hand, government officials seeking free-

dom from personal monetary liability and harassing litigation and, on

the other hand, injured persons seeking redress for the abuse of offi-

cial power." Hodge v. Jones, 31 F.3d 157, 162 (4th Cir. 1994) (inter-

nal quotation marks omitted). To that end, qualified immunity

protects government officials performing discretionary functions from

liability for civil damages "insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reason-

able person would have known." Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982). In determining whether a government official is entitled

to qualified immunity, "we must (1) identify the right allegedly vio-

lated, (2) determine whether the constitutional right violated was

clearly established at the time of the incident, and (3) evaluate

whether a reasonable offic[ial] would have understood that the con-

duct at issue violated the clearly established right." S.P., 134 F.3d at

265. These steps are sequential; we "`must first determine whether the

plaintiff has alleged the deprivation of an actual constitutional right

at all,'" before "`proceed[ing] to determine whether that right was

clearly established at the time of the alleged violation.'" Wilson v.

Layne, 119 S. Ct. 1692, 1697 (1999) (quoting Conn v. Gabbert, 119

S. Ct. 1292, 1295 (1999)). Accordingly, we address Appellants'

claims in turn, focusing first on whether Appellants' complaint has

alleged a deprivation of their constitutional rights.

A.

Appellants' complaint contends that their arrests by Appellees pur-

suant to "escapee" warrants violated the Fourth Amendment. The

Fourth Amendment, applicable to the States through the Fourteenth

Amendment, see Mapp v. Ohio, 367 U.S. 643, 654-55 (1961), states

in pertinent part that "[t]he right of the people to be secure in their

persons . . . against unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon probable cause," U.S.

Const. amend. IV. Subject to limited exceptions not relevant in this

6

case,3 the general rule is that"Fourth Amendment seizures are `rea-

sonable' only if based on probable cause." Dunaway v. New York, 442

U.S. 200, 213 (1979). Probable cause, in turn, is"defined in terms of

facts and circumstances sufficient to warrant a prudent man in believ-

ing that the suspect had committed or was committing an offense."

Gerstein v. Pugh, 420 U.S. 103, 111 (1975) (internal quotation marks

omitted). "Whether probable cause exists in a particular situation . . .

always turns on two factors in combination: the suspect's conduct as

known to the officer, and the contours of the offense thought to be

committed by that conduct." Pritchett v. Alford, 973 F.2d 307, 314

(4th Cir. 1992). "Probable cause therefore could be lacking in a given

case, and an arrestee's right violated, either because of an arresting

officer's insufficient factual knowledge, or legal misunderstanding, or

both." Id.

In this case, it is undisputed that Appellants were"seized" within

the meaning of the Fourth Amendment when arrested pursuant to

retake warrants. See Brower v. County of Inyo , 489 U.S. 593, 597

(1989) (holding that Fourth Amendment seizure occurs"only when

there is a governmental termination of freedom of movement through

means intentionally applied"); Dunaway , 442 U.S. at 207 (holding

that petitioner was "seized" when he was taken involuntarily to the

police station). Appellants contend that because they had not escaped,

but rather had been released on mandatory supervision, the plain lan-

guage of the Maryland retake-warrant statute did not authorize Appel-

lees to issue retake warrants for Appellants' arrests. Appellants assert

that as a consequence, the retake warrants were supported by no

cause, let alone legally sufficient probable cause.

In response, Appellees contend that under Maryland law and law

from other jurisdictions, prisoners erroneously released from incarcer-

ation hold the same status as escapees for purposes of their reincarc-

eration. In support of this proposition, Appellees cite Hopkins v.

North, 135 A. 367 (Md. 1926). In Hopkins, an individual who was

sentenced to jail became ill and was released for treatment at a sanato-

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3 For example, in Terry v. Ohio, 392 U.S. 1, 20-27 (1968), the Supreme

Court held that the police may make a brief, on-the-spot stop on the

street and a frisk for weapons based upon a reasonable suspicion that

criminal activity is afoot.

7

rium by the sheriff upon order of a magistrate. See id. at 367-68. After

the prisoner completed his treatment but refused to return to jail, the

state's attorney filed a petition for a mandamus to compel the sheriff

to arrest the prisoner and keep him in jail until he had served the

remainder of his sentence. See id. at 368. In addressing this issue, the

Court of Appeals of Maryland first held that "[t]he decided weight of

authority, and, in our opinion, the better reasoned cases, hold that,

where a prisoner secures his liberty through some illegal or void

order, it is to be treated as an escape, and he can be retaken and com-

pelled to serve out his sentence." Id. After noting that the magistrate's

order and the sheriff's action in releasing the prisoner in the first place

were unauthorized and illegal, and that the prisoner was given his lib-

erty upon the understanding that when he recovered from his illness

he would return to jail and serve the unexpired portion of his sen-

tence, the Court concluded that "under the circumstances of this case

[the prisoner] must be treated as having escaped, and so is subject to

arrest, and that upon his arrest he can be compelled to serve the

remainder of his sentence." Id.

The Maryland Court of Appeals's decision in Hopkins supports

Appellees' position that no violation of Appellants' Fourth Amend-

ment rights occurred in this case. Because Appellants do not chal-

lenge Appellees' substantive decision to apply Wickes retroactively,

but only challenge the means by which that decision was carried out,

including, inter alia, the execution and issuance of retake warrants for

Appellants' arrests, it follows that Appellants do not challenge the

reasonableness of Appellees' belief that Appellants were released

"through some illegal or void order." Appellants cite no subsequent

Maryland case, and we could find none, suggesting that Maryland

courts would depart from Hopkins. In light of this dearth of disposi-

tive case law, we believe that the common-law definitions of "escape"

and "escapee" in Hopkins are the best indication of how the terms "es-

cape" and "escapees" in the Maryland retake-warrant statute would be

construed today by a Maryland court. See Lorillard v. Pons, 434 U.S.

575, 583 (1978) ("[W]here words are employed in a statute which had

at the time a well-known meaning at common law . . . they are pre-

sumed to have been used in that sense unless the context compels to

the contrary." (alteration in original) (internal quotation marks omit-

ted)). Accordingly, because Hopkins instructs us that a mistakenly

released prisoner is to be treated under Maryland law as an escapee

8

for purposes of his reincarceration, we conclude that Appellees did

not violate Appellants' Fourth Amendment rights to be free from

unreasonable seizure when they arrested Appellants pursuant to retake

warrants for escapees. Appellees, therefore, are entitled to dismissal

of Appellants' Fourth Amendment claim. See Jenkins v. Medford, 119

F.3d 1156, 1160 (4th Cir. 1997) (en banc).

Even assuming arguendo that Appellees' arrest of Appellants vio-

lated Appellants' Fourth Amendment rights to be free from unreason-

able seizure, we are convinced that these rights were not clearly

established at the time of the seizures. This Court has held that the

Fourth Amendment right to be arrested only on probable cause is

clearly established. See Smith v. Reddy, 101 F.3d 351, 356 (4th Cir.

1996). If the test of clearly established law is applied at this level of

generality, however, plaintiffs alleging a Fourth Amendment violation

could "convert the rule of qualified immunity . .. into a rule of virtu-

ally unqualified liability." Anderson v. Creighton, 483 U.S. 635, 639

(1987); see also S.P., 134 F.3d at 266 (stating principle in mental

health seizure context). Appellants must therefore allege facts "dem-

onstrating that the established contours of probable cause were suffi-

ciently clear at the time of the seizure such that the unlawfulness of

[Appellees'] actions would have been apparent to reasonable offic[i-

als]." Id. In other words, the appropriate question is whether a reason-

able state official could have believed that issuing retake warrants

pursuant to the Maryland retake-warrant statute for the arrests and

reincarceration of individuals erroneously released on mandatory

supervision was lawful, in light of clearly established law and the

information Appellees possessed. Cf. Wilson, 119 S. Ct. at 1700.

Applying these principles to this case, it was clearly not unreason-

able for a Maryland state official in May 1998 to have believed that

executing and issuing retake warrants pursuant to§ 682(d) for the

arrests and reincarceration of individuals they reasonably believed to

have been erroneously released was lawful. First, because there is no

provision in the Annotated Code of Maryland specifically providing

for the retake of prisoners erroneously released, and given that Mary-

land's highest court had stated in Hopkins that prisoners who gained

their liberty "through some illegal or void order" had the status of

escapees, it was not unreasonable for Appellees to believe that the

means provided for retaking escapees applied to retaking mistakenly

9

released prisoners as well. Second, Appellants cite no judicial opin-

ions, and we can find none, stating that it is unlawful to use an

escapee warrant to arrest and reincarcerate erroneously released pris-

oners. See id. (relying in part upon lack of judicial opinions on

whether media entrances into a home violated Fourth Amendment to

justify finding that the right to be free from such entrances was not

clearly established). Although Appellants contend that Appellees

could have obtained the warrants "the old-fashioned lawful way," we

decline to impose liability on Appellees based upon their failure suc-

cessfully to predict the course of the law. Accordingly, even if Appel-

lants' Fourth Amendment rights in this particular context were

cognizable, these rights were not sufficiently clear at the time of

Appellants' arrests to notify reasonable state officials in Appellees'

position that their conduct was unlawful, thus entitling Appellees to

qualified immunity on Appellants' Fourth Amendment claim.

B.

Second, Appellants argue that their reincarceration without a hear-

ing to challenge the basis for the reincarceration violated their rights

not to be deprived of liberty without due process of law under the

Fourteenth Amendment. The Fourteenth Amendment provides in rele-

vant part that "nor shall any State deprive any person of life, liberty,

or property, without due process of law." U.S. Const. amend. XIV,

§ 1. "We examine procedural due process questions in two steps: the

first asks whether there exists a liberty or property interest which has

been interfered with by the State; the second examines whether the

procedures attendant upon that deprivation were constitutionally suf-

ficient." Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454,

460 (1989) (internal citation omitted). An individual claiming a lib-

erty or property interest protected by the Fourteenth Amendment

"must have a legitimate claim of entitlement to it." Id. "Protected lib-

erty interests `may arise from two sources -- the Due Process Clause

itself and the laws of the States.'" Id. (quoting Hewitt v. Helms, 459

U.S. 460, 466 (1983)).

In Morrissey v. Brewer, 408 U.S. 471 (1972), the Supreme Court

addressed the question of whether the requirements of procedural due

process applied to parole revocations. See id. at 481. In answering that

question in the affirmative, the Court first noted that "the liberty of

10

a parolee, although indeterminate, includes many of the core values

of unqualified liberty and its termination inflicts a `grievous loss' on

the parolee and often on others." Id. at 482. Buttressing the parolee's

interest in liberty is the society's interest "in not having parole

revoked because of erroneous information or because of an erroneous

evaluation of the need to revoke parole" and its interest "in treating

the parolee with basic fairness." Id. at 484. Accordingly, the Supreme

Court held that due process required a preliminary hearing at the time

of the parolee's arrest and detention "to determine whether there is

probable cause or reasonable ground to believe that the arrested paro-

lee has committed acts that would constitute a violation of parole con-

ditions," id. at 485, and a revocation hearing prior to the final decision

on revocation and within a reasonable time after the parolee is taken

into custody in which the parolee has "an opportunity to be heard and

to show, if he can, that he did not violate the[parole] conditions, or,

if he did, that circumstances in mitigation suggest that the violation

does not warrant revocation," id. at 488.

In Gagnon v. Scarpelli, 411 U.S. 778 (1973), the Supreme Court

extended the two-hearings requirement set forth in Morrissey to the

revocation of probation. See id. at 482. This Court subsequently

extended Morrissey and Gagnon to require a hearing in the case of

a pardon revocation. See Pope v. Chew, 521 F.2d 400, 404-05 (4th

Cir. 1975). Finally, in United States v. Copley , 978 F.2d 829, 831 (4th

Cir. 1992), this Court extended the due process protections enunciated

in Morrissey and Gagnon to revocation of supervised release. In light

of these precedents, Appellants argue, the lack of any hearing at all

to challenge the basis of their arrests and reincarceration violated their

rights to due process.

Appellants' argument overlooks one simple fact: by their own

admission, their case "does not challenge [Appellees'] substantive

decision to apply Wickes retroactively" but rather challenges "the law-

fulness of [Appellees'] deliberate decision to carry out their retroac-

tive decision of Wickes," by, inter alia, denying Appellants an

opportunity to challenge Appellees' decision to have them arrested

and incarcerated. (Appellants' Br. at 16.) Appellants therefore do not

challenge the reasonableness of Appellees' misinterpretation of

Wickes, and by implication, the reasonableness of Appellees' belief

that Appellants had been mistakenly released. A prisoner who is mis-

11

takenly released does not have a protected liberty interest because,

unlike a parolee, he does not have a "legitimate claim of entitlement"

to freedom. See Campbell v. Williamson, 783 F. Supp. 1161, 1164

(C.D. Ill. 1992); see also McKellar v. Arizona State Dep't of Correc-

tions, 566 P.2d 1337, 1339 (Ariz. 1977) (holding that state's seizure

and reincarceration of mistakenly released prisoner without a hearing

did not violate due process). With no liberty interest to protect, there

is no violation of due process and no need for the pre-detention hear-

ings contemplated by Morrissey and its progeny. Because Appellants'

complaint failed to show that they suffered a deprivation of due pro-

cess, Appellees are entitled to dismissal of Appellants' Fourteenth

Amendment claim. See Jenkins, 119 F.3d at 1160.

Even assuming arguendo that a mistakenly released prisoner pos-

sesses a liberty interest and the due process right to challenge his

arrest at a preliminary hearing and at a hearing just prior to reincar-

ceration, Appellees would still be entitled to qualified immunity on

Appellants' Fourteenth Amendment claim because this right was not

clearly established at the time of Appellants' arrests. At the time of

Appellants' arrests, this Court recognized that the due process

requirements of Morrissey applied to revocations of pardons and

revocations of supervised release. Because the liberty interest of a

mistakenly released prisoner differs greatly from the liberty interest

of a prisoner who has been pardoned or a prisoner who is on super-

vised release, it does not automatically follow that a mistakenly

released prisoner is entitled to a hearing to challenge his arrest and

reincarceration. See Copley, 978 F.2d at 831 ("Logic would extend

this protection [enunciated in Morrissey and Gagnon] to hearings to

revoke supervised release."); Pope, 521 F.2d at 404 ("The Common-

wealth has not suggested, and we have been unable to imagine, how

the liberty interests of one who is free on conditional pardon differ

from one who is free on parole or probation."). Thus, Appellants'

Fourteenth Amendment rights in this particular context, even if recog-

nized, were not sufficiently clear at the time of their arrests to notify

reasonable state officials in Appellees' position that their denial of a

hearing to Appellants was unlawful.

III.

In sum, we hold that Appellees did not violate Appellants' rights

under the Fourth Amendment and that Appellants had no protected

12

liberty interest under the Fourteenth Amendment. We therefore affirm

the district court's dismissal of Appellants' complaint.

AFFIRMED

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