holding that officer who believed plaintiff was going to flee in his car did not use excessive force by “brutally grabb[ing] [plaintiff] about [the] waist, ... thr[owing] [him] back into [his] driver seat ...[,] slamm[ing] [the] door on one of [plaintiff's] legs,” and later “grabb[ing] [plaintiff's] arms[,] pull[ing] them behind [plaintiff's] back[,] and immediately plac[ing] [plaintiff] in handcuffs while pushing [him] up against [the] limousine,” aggravating plaintiff's previous shoulder injury
How later courts described this case
- holding that officer who believed plaintiff was going to flee in his car did not use excessive force by “brutally grabb[ing] [plaintiff] about [the] waist, ... thr[owing] [him] back into [his] driver seat ...[,] slamm[ing] [the] door on one of [plaintiff's] legs,” and later “grabb[ing] [plaintiff's] arms[,] pull[ing] them behind [plaintiff's] back[,] and immediately plac[ing] [plaintiff] in handcuffs while pushing [him] up against [the] limousine,” aggravating plaintiff's previous shoulder injury
- holding that officer who believed plaintiff was going to flee in his car did not use excessive force by “brutally grabbing] [plaintiff] about [the] waist, ... throwing] [him] back into [his] driver seat ...[,] slamm[ing] [the] door on one of [plaintiffs] legs,” and later “grabbing] [plaintiffs] arms[,] pull[ing] them behind [plaintiffs] baek[,] and immediately placing] [plaintiff] in handcuffs while pushing [him] up against [the] limousine,” aggravating plaintiffs previous shoulder injury
- determining that facts admitted by the plaintiff supported a court finding on summary judgment that defendant acted in an objectively reasonable fashion when he grabbed plaintiff, threw him into the driver seat, and slammed the car door on plaintiffs leg
- finding that the arresting officer did not use excessive force by allegedly grabbing a driver by the waist, throwing him back into the driver’s seat and slamming the door on his legs
Written by the judges who cited it.
The opinion
GINSBURG, Ruth B., Circuit Judge,
with whom Circuit Judge WILLIAMS, and Senior Circuit Judge McGOWAN, join: The petition for rehearing invites the panel, or the court en banc, to extend the absolute immunity rule of Barr v. Matteo, 360 U.S. 564 , 79 S.Ct. 1335 , 3 L.Ed.2d 1434 (1959), to all lower-ranking federal officers of limited discretion, particularly to all federal law enforcement officers “on the beat.” Whether Barr reaches all federal employees acting within the scope of their employment, or at least those exercising a modicum of discretion, is an issue currently pending before the Supreme Court. Westfall v. Erwin (No. 86-714) (argued Nov. 2, 1987). The panel opinion in the case at hand stressed the need for “guidance from Higher Authority,” and noted the pendency of Westfall v. Erwin. See Martin v. Malhoyt, supra, 830 F.2d 237, 246-47 . Dissenting Opinion, supra at 268. 1
*270 Should the Supreme Court extend Barr’s shelter to all federal employees with respect to all common law torts, it is entirely clear that the district court would be bound to dismiss the common law claims against U.S. Park Police officers Malhoyt and Stover. Furthermore, it is at least implicit in the majority opinion that the common law claims against the two officers could not survive should the Supreme Court hold Barr applicable to all lower-ranking federal officers in fact entrusted with some, albeit modest, discretion. On the other hand, the common law claims would remain viable should the Supreme Court limit Barr “to employees at the policymaking or planning level, as distinguished from employees at the operational level who function day to day under established procedures and guidelines.” See Martin v. Malhoyt, Maj. at 248.
In view of the “hardly clear” current state of Supreme Court precedent in this area, see id., Dis. supra at 269, and the prospect of guidance forthcoming soon, (1) we anticipate that the district court will await the Supreme Court’s decision in Westfall v. Erwin before adjudicating the common law claims remaining in this case, and (2) we find further airing of the matter in this court unwarranted. Accordingly, the petition for rehearing is
Denied.
. Contrary to the distorted portrait of this circuit’s precedent in the rehearing petition, no prior decision of this court holds that Barr-style immunity covers the "officer on the beat.” In Martin v. D.C. Metropolitan Police Dep't, 812 F.2d 1425 , 1428 n. 11 (D.C.Cir.1987), we noted that we did not confront the question because, without regard to Barr , absolute immunity is the prevailing common law rule where malicious prosecution is alleged.