In a split decision, a panel of the Fourth Circuit reversed the district court decision that plaintiff had not suffered a constitutionally excessive use force, where the case involved, according to the majority, the following facts: "This appeal arises out of an incident in which a North Carolina deputy sheriff knocked Edward Arthur Jones to the floor in the sheriff’s office and then jumped on him, crushing Jones’s nose, lacerating his lips and nose, and bruising his ribs. Prior to the deputy’s use of force, Jones, although drunk and yelling obscenities, was unarmed and in a secured room; moreover, Jones maintains that his wrists were handcuffed behind him. It is undisputed that, at the time the deputy initiated force, Jones was not under arrest or suspected of any crime; rather, he had voluntarily come to the sheriff’s office seeking assistance.
Judge Luttig dissented, concluding that the deputy was entitled to qualified immunity based on Robles v. Prince George’s County, Maryland, a fairly notorious case, on which rehearing was denied over Judge Luttig's dissent. In today's opinion, Judge Luttig concludes: "it is apparent that different qualified immunity principles have been applied by the majority in this case than were applied by the panel in Robles. Although it would be of no relevance for the disposition of today’s case, I would like to think that Judge Motz has reconsidered her concurrence in Judge Wilkinson’s opinion in Robles based upon the principles of law that I laid out in dissent in that case. . . ."
Judge Luttig also bared his views on what he views as a dangerous trend within his own court, which merit quoting at length:
In recent years, it has become more common on our circuit to attempt to add to, subtract from, or recharacterize the facts recited and relied upon in a challenged panel opinion, or even to fine-tune, if not fundamentally reshape, the legal analysis undertaken by the original panel, in the course of opinions respecting the denial of rehearing en banc. . . . These opinions respecting the denial of rehearing en banc are cloaked as mere recitations of the facts and reasoning of the panel opinions, not as revisions of those opinions. But it is evident from a comparison of these opinions with the original panel opinions that the former actually are attempted revisions of the latter. In fact, not infrequently, the fullness, depth, and length of the subsequent writing confirms that it is nothing short of a rewriting of the panel opinion from scratch in response to arguments and authorities that were not considered or addressed by the panel.
These attempts at revision of binding panel opinions typically follow upon the identification of errors in the panel’s factual recitation or flaws in the panel’s legal analysis by other members of the court who, by their own written opinions, have drawn the panel opinion into question. That such attempts at revision prove irresistible on occasion is understandable; upon revelation of errors or oversights in either fact or law, there is a quite natural instinct to correct the error or oversight in anticipation of further review of the original decision by the en banc court or Supreme Court or in an effort to forestall altogether any further review. But because these kinds of revisionist writings cannot be and are not the binding authority of the circuit, they ultimately disserve the court and the public, in addition to justifiably confusing the bar and the bench as to the law of the circuit. It is our solemn obligation in opinions not only to come to the correct conclusions under law, but to support those conclusions with full reasoning that incorporates and honestly addresses the relevant facts and precedents. I have long believed that the federal courts too often fall short in the discharge of this most important of our obligations. But be that as it may, the formal release of an opinion of law on behalf of the court is the final step in the court’s deliberative process, not the first or merely another along the way toward the final decision. Identically as issued by the responsible panel, the panel decision is the binding law of the circuit.
Of course, we in the judiciary can make mistakes just like anyone else. We can fail to include relevant facts or even misstate facts. We can overlook authorities or misread them. From time to time, we can even misanalyze a case completely. But our obligation when we do err in these regards is to admit our errors forthrightly and correct them in opinions that are, themselves, binding. We owe nothing less to the parties and the public whom we serve. Indeed, the public respect that the judiciary enjoys is attributable in no small part to our institutional insistence upon the open and formal admission and correction of our misstatements and omissions. We can scarcely criticize others for misstatements, omissions and analytical errors if we turn a blind eye toward, rather than admit, our own.
The developed process for addressing the judicial error is the grant of rehearing (or of rehearing en banc) and the official correction of the error. Thus, if a convincing argument is made by a colleague in opposition to the denial of rehearing en banc (or by a party in a petition for rehearing en banc) that the panel has erred in the material facts predicate for its disposition or in its analysis of the law, rehearing by the panel — on the submissions if more is unnecessary — is available to address the argument squarely in a revised, but binding, opinion for the court. Or if the argument is of determinative importance and seemingly unanswerable within the four corners of the analysis upon which the panel members can agree, the argument may be addressed by the full court sitting en banc. But it is not the established process, and ought never become such, that the authoring or another judge attempt the correction of factual or analytical errors or omissions in the panel opinion through a separate writing respecting a petition for rehearing or rehearing en banc. The reasons that this practice of post-hoc rationalization must be discouraged are many, and need not be canvassed fully in the context of today’s opinion. But two of these reasons are of especial importance, and deserve notation even in a passing discussion. First, the practice undermines respect for the courts, by leaving the parties and public bound by an opinion that at least one member of the panel has effectively acknowledged was factually or analytically inadequate, at the same time that it consigns the losing party to the appeal of a binding decision that is factually incorrect or legally unsound, but that is made to appear to the reviewing court as less deserving of further consideration by the gloss superimposed by the nonbinding opinion subsequently issued. Second, it sows the seed for confusion among the members of the bar and bench as to what the law actually is, i.e., (where the facts are subsequently added to or subtracted from) whether the principle of law stated in the panel opinion is that confined by the facts as recited in that opinion or those as recited in the subsequent nonbinding opinion, or (where the principle of law itself is modified) whether the governing principle of law is that in the original panel opinion or that in the later opinion. And, in fact, it is not uncommon for the district courts of our circuit, as well as counsel, to cite to and to analyze our separate writings respecting the denial of rehearing en banc as if these writings, rather than the panel opinions that these writings seek to rehabilitate, might be the binding law of the circuit. . . .