# Mary Elizabeth Dunn v. Mike Denk, Cross-Appellee

> Court of Appeals for the Fifth Circuit · March 19, 1996 · 79 F.3d 401

URL: https://www.frixlaw.com/law-library/cases/9489010

## Case

- **Full name:** Mary Elizabeth DUNN, Plaintiff-Appellee, Cross-Appellant, v. Mike DENK, Defendant-Appellant, Cross-Appellee
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** March 19, 1996
- **Citations:** 79 F.3d 401; 1996 U.S. App. LEXIS 4969
- **Precedential status:** Published
- **Opinion:** Concurring in part by Barksdale
- **Judges:** Politz, Reavley, King, Garwood, Jolly, Higginbotham, Davis, Jones, Smith, Duhé, Wiener, Barksdale, Demoss, Benavides, Stewart, Parker, Dennis
- **Cited by:** 55 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9489010

## How later opinions describe it (automated extraction)

- finding injury sufficient to demonstrate excessive force where plaintiff suffered substantial psychological injuries even where plaintiffs only physical injuries were bruises
- noting that no recovery is available when a use of force is reasonable, though a plaintiff may recover when a preexisting condition is aggravated by the use of excessive force

## Opinion text

RHESA HAWKINS BARKSDALE, Circuit Judge,
joined by E. GRADY JOLLY, EDITH H. JONES, JERRY E. SMITH, EMILIO M. GARZA and DeMOSS, Circuit Judges, concurring in part and dissenting in part:
“Even if [Officer Denk’s] conduct violates a constitutional right, he is entitled to qualified *404 immunity if [his] conduct was objectively reasonable.” Salas v. Carpenter, 980 F.2d 299, 310 (5th Cir.1992); Walton v. Alexander, 44 F.3d 1297, 1301 (5th Cir.1995) (en banc); Spann v. Rainey, 987 F.2d 1110, 1114 (5th Cir.1993). This factor is “assessed in light of the legal rules clearly established at the time” of the January 1990 incident. Salas, 980 F.2d at 310 . Johnson v. Morel, 876 F.2d 477 (5th Cir.1989) (en banc), controlled from early July 1989 until late February 1992, when its significant injury prong was overruled by Hudson v. McMillian, 503 U.S. 1 , 112 S.Ct. 995 , 117 L.Ed.2d 156 (1992). See Harper v. Harris County, Tex., 21 F.3d 597, 600-01 (5th Cir.1994).
I.
Dunn maintains that her emotional injury satisfies Johnson’s significant injury requirement. But, as covered in part I of Judge King’s opinion, it was not clearly established at the time of the incident (only six months after Johnson was rendered) that a non-physical injury, without significant physical injury, could satisfy this requirement. 876 F.2d at 480 & n. 1. In fact, it was just the opposite. Therefore, I concur in part I of the opinion by Judge King, which agrees that qualified immunity must be accorded Officer Denk.
Along that line, I must register concern over the dissents’ refusal to recognize our controlling law at the time of the incident. That by Judge Dennis is especially remarkable; he simply declares Johnson , our en banc decision, “void ab initio”, because he reads it as conflicting with Graham v. Connor, 490 U.S. 386 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989), rendered shortly before Johnson and quoted from at length in it. Indeed, the Johnson en banc court began by stating that it was “[g]uided by” Graham. 876 F.2d at 478 .
No authority need be cited for our rule that we are bound by our prior decisions, unless there is a superseding Supreme Court or en bane decision. There is neither in this instance. Instead, our court is faulted by Judge Dennis for supposedly, in an en banc opinion, not complying with an earlier Supreme Court opinion. Being able to decide individually whether one of our opinions applies earlier controlling law correctly would quickly usher in judicial anarchy. See Grabowski v. Jackson County Public Defenders Office, 47 F.3d 1386, 1398 (Smith, J., dissenting), reh’g en banc granted, 47 F.3d at 1403 (5th Cir.1995). Obviously, this is why our court long ago adopted our rule honoring our precedent.
II.
As for part II of Judge King’s opinion, I must respectfully dissent. Her part I decides the case; it renders judgment for Officer Denk. Therefore, there is no need to proceed further; there is no need to address other aspects of the Johnson test — in this instance, recovery vel non for aggravation of a preexisting injury. At best, this court is rendering an advisory opinion. At worst, it is offering up language that may come back to haunt us. If nothing else, it has created a judicial quagmire that will bog down the bench and the bar, at considerable cost in time and expense, as both try to determine what weight should be accorded part II.
That is the legacy of dictum, “the gift that keeps on giving”. And, part II is dictum, plain and simple. We have long known to avoid engaging in such an exercise. “It is a rule of universal application by the Supreme Court, as well as the other courts of this country, that no opinion can be considered as binding authority unless the case calls for its expression.” Indiviglio v. United States, 249 F.2d 549, 561 (5th Cir.1957) (citing Carroll v. Carroll’s Lessee, 57 U.S. (16 How.) 275 , 14 L.Ed. 936 (1853)), rev’d on other grounds, 357 U.S. 574 , 78 S.Ct. 1381 , 2 L.Ed.2d 1547 (1958). This case does not call for this expression.
Accordingly, I concur in part I of Judge King’s opinion, but must dissent from part II.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9489010. Public record. Not legal advice.