Sherrell King v. City of Lincoln Park, Mich.

NOT RECOMMENDED FOR PUBLICATION

File Name: 25a0391n.06

No. 24-2017

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED

) Aug 05, 2025

SHERRELL KING,

) KELLY L. STEPHENS, Clerk

Plaintiff-Appellee, )

)

v. ) ON APPEAL FROM THE

) UNITED STATES DISTRICT

CITY OF LINCOLN PARK, MICHIGAN, a ) COURT FOR THE EASTERN

Michigan municipal corporation, ) DISTRICT OF MICHIGAN

Defendant, )

) OPINION

NICK KOSMALSKI, in his individual capacity, )

)

Defendant-Appellant. )

Before: GRIFFIN, LARSEN, and MATHIS, Circuit Judges.

GRIFFIN, J., announced the judgment of the court and delivered the lead opinion in which

MATHIS, J., concurred in part. MATHIS, J. (pp. 13–17), delivered a separate opinion concurring

in part and dissenting in part. LARSEN, J. (pp. 18–22), delivered a separate opinion concurring

in the judgment in part and dissenting in part.

GRIFFIN, Circuit Judge.

During a traffic stop, officers discovered that plaintiff Sherrell King had outstanding traffic

warrants and thus handcuffed and briefly detained her. King twice complained about the

handcuffs’ tightness, but defendant Officer Nick Kosmalski ignored her second complaint. King

allegedly suffered injuries from the handcuffing, so she brought this lawsuit claiming excessive

force in violation of the Fourth Amendment and gross negligence in violation of Michigan law.

Kosmalski now appeals the district court’s denials of qualified immunity and state-law

governmental immunity at the summary-judgment phase. For the following reasons, we affirm

No. 24-2017, King v. City of Lincoln Park, et al.

the district court’s denial of qualified immunity, reverse its denial of governmental immunity, and

remand for further proceedings.

I.

One morning in June 2021, City of Lincoln Park Police Department Officer Kosmalski and

his partner pulled over a vehicle driven by Sherrell King for expired license-plate tabs. During the

traffic stop, King told the officers that both her license-plate tabs and driver’s license had recently

expired but that she had an upcoming appointment to renew them.

The officers then ran a LEIN check on King’s purportedly expired license, which revealed

that it was suspended for outstanding traffic warrants. The officers ordered King out of the car,

arrested her, and put her in handcuffs. When Kosmalski began to handcuff King, she informed

him that she recently had breast-cancer surgery and thus asked not to be handcuffed behind her

back. To accommodate her, Kosmalski responded that he would use two pairs of handcuffs linked

together.

While Kosmalski cuffed her, King complained that the handcuffs were “kinda tight” and

now claims that she said “ouch” when Kosmalski locked them. Both officers then checked the

tightness of the handcuffs by sliding a finger in between a cuff and King’s wrist to ensure that

there was “ample space.” Kosmalski ultimately double locked the handcuffs in place, meaning

they could neither be loosened nor tightened.

The officers then escorted King to their patrol car. As King climbed into the vehicle, she

complained about the handcuffs being too tight: “This shit hurt in the back, on my wrist.”

Although Kosmalski “listened” to King’s complaint, he did not check the handcuffs’ tightness.

Indeed, he “did not respond and closed the car door.” King never complained about the handcuffs

again.

-2-

No. 24-2017, King v. City of Lincoln Park, et al.

Ultimately, the officers issued King three traffic citations, uncuffed her, impounded her

vehicle, and released her. In total, King was handcuffed for about 15 minutes.

After the officers removed King’s handcuffs, she noticed that her wrists and hands were

swollen and that the cuffs had left marks on her wrists. She claims that the handcuffs made her

fingers numb and caused something to “pop.” King sought medical treatment for her wrist injuries

and has since gone to physical therapy, had two surgeries, and had two rounds of injections.

King eventually filed this civil-rights lawsuit against Kosmalski and the City of Lincoln

Park. Relevant to this appeal, she alleged a 42 U.S.C. § 1983 Fourth Amendment excessive-force

claim and state-law gross-negligence claim against Kosmalski in his individual capacity.

Kosmalski moved for summary judgment based on qualified immunity and governmental

immunity, which the district court denied. Kosmalski timely filed a notice of interlocutory appeal.

II.

We review de novo a district court’s denials of qualified and governmental immunity at

the summary-judgment stage. Erickson v. Gogebic County, 133 F.4th 703, 707 (6th Cir. 2025)

(qualified immunity); Bletz v. Gribble, 641 F.3d 743, 757 (6th Cir. 2011) (governmental

immunity). Summary judgment is proper “if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). “To prevail, the nonmovant must show sufficient evidence to create a genuine issue of

material fact, which is to say, there must be evidence on which the jury could reasonably find for

the nonmovant.” Sumpter v. Wayne County, 868 F.3d 473, 480 (6th Cir. 2017) (citation modified).

We must view all evidence and draw all inferences in the light most favorable to the nonmoving

party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

-3-

No. 24-2017, King v. City of Lincoln Park, et al.

III.

Kosmalski first argues that he did not violate a clearly established constitutional right when

he handcuffed King and should thus be protected by qualified immunity. Qualified immunity

protects public officials, in certain circumstances, from liability for civil damages when they

violate a person’s constitutional rights. Pearson v. Callahan, 555 U.S. 223, 231 (2009). We ask

two questions to determine whether a public official is entitled to qualified immunity: (1) whether

the facts alleged support a violation of the plaintiff’s constitutional rights, and (2) if they do,

whether that right was clearly established at the time of the defendant’s alleged misconduct. Id. at

232; LaPlante v. City of Battle Creek, 30 F.4th 572, 578–79 (6th Cir. 2022). If the public-official

defendant did not violate a constitutional right, or if he did but the right was not clearly established

at the time of the violation, then the defendant is entitled to qualified immunity. See Martin v. City

of Broadview Heights, 712 F.3d 951, 957 (6th Cir. 2013).

Because appeals from qualified-immunity denials are interlocutory, we “may only exercise

jurisdiction over the appeal to the extent that a summary judgment order denies qualified immunity

based on a pure issue of law.” Morrison v. Bd. of Trs. of Green Twp., 583 F.3d 394, 399 (6th Cir.

2009) (citation modified). In such appeals, we thus consider “whether the facts alleged by the

plaintiff constitute a violation of clearly established law.” Berryman v. Rieger, 150 F.3d 561, 563

(6th Cir. 1998).

A.

Beginning with prong one of the qualified-immunity analysis, King has established that a

reasonable jury could find that Kosmalski violated her Fourth Amendment rights. The Fourth

Amendment protects against unreasonable searches and seizures. U.S. Const. amend. IV. “A

seizure is ‘unreasonable’ under the Fourth Amendment if officers used excessive force.” Puskas

-4-

No. 24-2017, King v. City of Lincoln Park, et al.

v. Delaware County, 56 F.4th 1088, 1093 (6th Cir. 2023) (citation omitted). For claims alleging

that an officer’s handcuffing was excessively forceful, a plaintiff must show that: “(1) he or she

complained the handcuffs were too tight; (2) the officer ignored those complaints; and (3) the

plaintiff experienced some physical injury resulting from the handcuffing.” Morrison, 583 F.3d

at 401 (citation modified).

On appeal, Kosmalski challenges only the second element, arguing that because he

addressed King’s first complaint that the handcuffs were too tight, he did not ignore her. But

Kosmalski does not dispute that he ignored her second complaint. And under our caselaw, even a

“dismissive response”—i.e., an officer acknowledging a detainee’s complaint but refusing to

loosen the handcuffs—satisfies the second element of a handcuffing claim. See Baynes v.

Cleveland, 799 F.3d 600, 609 (6th Cir. 2015). Indeed, we have held that a plaintiff “easily

satisf[ies]” the second element of a handcuffing claim by establishing that the officer “responded

to the complaint by sticking his finger in between the handcuffs and [the plaintiff’s] skin to make

sure they were not too tight” but chose not to loosen the cuffs. Morrison, 583 F.3d at 402 (citation

modified). Here, Kosmalski was even less responsive than the officers in Baynes and Morrison

were—he ignored King’s second complaint, which is exactly the type of conduct the second

element of this claim requires.

Disagreeing, Kosmalski argues that he was not required to check King’s handcuffs a

second time. Yet he supports this argument with only unpublished authority. See Fettes v.

Hendershot, 375 F. App’x 528, 533 (6th Cir. 2010). As explained, our published caselaw required

Kosmalski to address and remedy King’s complaints of too-tight handcuffs. See Morrison,

583 F.3d at 402; Baynes, 799 F.3d at 609. We, of course, must follow our binding caselaw. Cf.

United States v. Cogdill, 130 F.4th 523, 527 (6th Cir. 2025). And under that caselaw, Kosmalski’s

-5-

No. 24-2017, King v. City of Lincoln Park, et al.

disregard of King’s complaint, coupled with her resulting injuries, amounts to an excessively

forceful handcuffing for summary-judgment purposes. Thus, at this stage of the case, there is at

least a genuine dispute of material fact as to whether Kosmalski violated King’s Fourth

Amendment rights.

B.

King has also satisfied prong two of the qualified-immunity analysis, sufficiently showing

that her right to be free from excessively forceful handcuffing is clearly established. “A right is

clearly established if the contours of the right are sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” Cahoo v. SAS Analytics, Inc., 912 F.3d 887,

898 (6th Cir. 2019) (citation modified). Although clearly established law cannot be defined “at a

high level of generality,” Godawa v. Byrd, 798 F.3d 457, 467 (6th Cir. 2015) (citation omitted), a

case with near-identical facts need not exist for a right to be clearly established, Rivas-Villegas v.

Cortesluna, 595 U.S. 1, 5 (2021) (per curiam). Indeed, “the sine qua non of the ‘clearly

established’ inquiry is ‘fair warning.’” Baynes, 799 F.3d at 612–13 (quoting Hope v. Pelzer,

536 U.S. 730, 741 (2002)). Given these principles, “[t]he relevant inquiry is ‘whether it would be

clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’” Id. at

610 (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)).

The right to be free from excessively forceful handcuffing was clearly established in this

circuit at the time of the incident here. “As early as 1993, we held that it was clearly established

law in this circuit in 1991 . . . that excessively forceful handcuffing violates the Fourth Amendment

prohibition against excessive force.” Id. at 613 (citing Walton v. City of Southfield, 995 F.2d 1331,

1342 (6th Cir. 1993)). And in 2009, we laid out exactly what type of conduct constitutes an

excessively forceful handcuffing: an officer’s disregard to a detainee’s complaint of too-tight

-6-

No. 24-2017, King v. City of Lincoln Park, et al.

handcuffs that cause an injury. Morrison, 583 F.3d at 401. In 2019, we explicitly rejected a bright-

line rule about how much time a detainee needs to be handcuffed for the cuffing to be

unconstitutionally excessive and instead held that we determine excessiveness on a case-by-case,

totality-of-the-circumstances basis. See Rudolph v. Babinec, 939 F.3d 742, 751 (6th Cir. 2019)

(per curiam) (“Conduct, not time, is the measurement of a violation. To see why, imagine that

someone was handcuffed so tightly that she was bleeding from her wrists and screaming in pain

while an officer ignored the complaint. The law would not require us to ignore that excessive

force claim because the bleeding went on for ten minutes instead of eleven.”).

Kosmalski argues that even if he violated the Fourth Amendment by ignoring King’s

second complaint about the tight handcuffs, it was not clearly established that his conduct was

unconstitutional. Not so. As explained, we have held that conduct similar to (and even less

dismissive than) that at issue here was excessively forceful in violation of a clearly established

right. See Baynes, 799 F.3d at 613–17 (cataloguing our precedent clearly establishing the right to

be free from excessive handcuffing); see also Morrison, 583 F.3d at 401–02; Rudolph, 939 F.3d

at 751–52; Hughey v. Easlick, 3 F.4th 283, 287, 293 (6th Cir. 2021). True, neither Morrison nor

Baynes involved facts identical to those here. But they need not contain even “fundamentally

similar” facts to clearly establish the law so long as the state of the law at the time of the

handcuffing gave Kosmalski “fair warning that [his] alleged treatment of [King] was

unconstitutional.” See Hope, 536 U.S. at 741. And because a reasonable officer would have

known to check and loosen the too-tight handcuffs that ultimately caused serious injuries, at this

stage in the case, King has sufficiently shown that Kosmalski violated her clearly established

Fourth Amendment rights. See, e.g., Morrison, 583 F.3d at 402–04; Baynes, 799 F.3d at 609–16;

Rudolph, 939 F.3d at 750–52; Hughey, 3 F.4th at 290–91, 293.

-7-

No. 24-2017, King v. City of Lincoln Park, et al.

We are not persuaded by Kosmalski’s reliance on unpublished handcuffing cases holding

that the officers were entitled to qualified immunity. See Fettes, 375 F. App’x at 533–34; Lee v.

City of Norwalk, 529 F. App’x 778, 781–82 (6th Cir. 2013); Henry v. City of Flint,

814 F. App’x 973, 983 (6th Cir. 2020). These unpublished cases aside, our published caselaw has

clearly established the right to be free from an officer ignoring complaints of too-tight handcuffs.

And in any event, these cases are distinguishable. See Fettes, 375 F. App’x at 533 (officer

responded to each of plaintiff’s complaints and assured him that they would loosen them); Lee,

529 F. App’x at 782 (plaintiff was handcuffed for only a 1.5-mile drive, a distance “that can be

driven in less than five minutes”); Henry, 814 F. App’x at 983 (plaintiff made “indistinct”

complaints, at best, about the handcuffs, and the need to get plaintiff to the police station was

“pressing” given his suffering from pepper spray).

Otherwise, Kosmalski relies on one published opinion in arguing that no clearly established

right is at issue here, O’Malley v. City of Flint, 652 F.3d 662, 671–72 (6th Cir. 2011). There, when

officers approached the plaintiff upon suspicion that he had been impersonating a police officer,

the plaintiff became agitated, cursed, and raised his voice, so officers handcuffed him for safety

reasons while they investigated. Id. at 665–66. During the two minutes that the plaintiff was

handcuffed, he never asked the officers to loosen the cuffs. Id. at 671. And the handcuffs left no

“obvious physical injury.” Id. Because a reasonable officer in that situation would not have known

that any constitutional violation may have occurred, we granted qualified immunity to the police

officer. Id. at 671–72. Unlike the plaintiff in O’Malley, King alleges she was handcuffed longer,

had visible injuries, and twice complained about the handcuffs’ tightness. Therefore, O’Malley is

also inapposite.

-8-

No. 24-2017, King v. City of Lincoln Park, et al.

To be sure, we held in Fettes that “a constitutional requirement obligating officers to stop

and investigate each and every utterance of discomfort and make a new judgment as to whether

the handcuffs are ‘too tight’ is neither reasonable nor clearly established.” 375 F. App’x at 533.

But we have since retreated from Fettes, Lee, and O’Malley in recent published authority. See

Baynes, 799 F.3d at 616–17. We noted that these cases “are outliers in this Circuit, where at least

10 published cases, not to mention additional unpublished cases, have stated unequivocally, for

over 20 years, that a right to be free from excessively forceful or unduly tight handcuffing is clearly

established law.” Id. at 616. Moreover, we explained that these cases failed to abide by Hope v.

Pelzer—in which the Supreme Court held that even “novel factual circumstances” can put an

official on notice of his unconstitutional conduct, 536 U.S. at 741—by requiring the plaintiffs to

provide a near-identical case to show a clearly established right. Baynes, 799 F.3d at 617.

Accordingly, we need not follow these distinguishable and potentially abrogated cases—two of

which are unpublished.

C.

In sum, considering the facts in the light most favorable to King, she has established that

Kosmalski violated her clearly established Fourth Amendment right to be free from excessively

forceful handcuffing. We therefore affirm the district court’s decision that Kosmalski is not

entitled to summary judgment based on qualified immunity.

IV.

Kosmalski also claims that the district court erred by denying him governmental immunity,

under Michigan law, for King’s gross-negligence claim. In determining whether a state officer is

entitled to summary judgment based on governmental immunity, we “apply Michigan

governmental-immunity law and federal procedural law.” Bletz, 641 F.3d at 757. Under Michigan

-9-

No. 24-2017, King v. City of Lincoln Park, et al.

law, “[i]f the facts are not in dispute and reasonable minds could not differ concerning the legal

effect of those facts, whether the claim is barred by immunity is a question for the court to decide

as a matter of law.” Beals v. Michigan, 871 N.W.2d 5, 9 (Mich. 2015) (citation omitted).

Michigan’s Governmental Tort Liability Act, Mich. Comp. Laws § 691.1401 et seq.,

protects state employees from tort liability for injuries they cause in the course of their

employment, unless their conduct amounts to gross negligence, id. § 691.1407(2). Gross

negligence is “conduct so reckless as to demonstrate a substantial lack of concern for whether an

injury results.” Id. § 691.1407(8)(a). Although state officers are not immunized for grossly

negligent conduct, claims styled as “gross negligence” but that are “fully premised” on intentional

conduct are not cognizable claims under Michigan law. VanVorous v. Burmeister, 687 N.W.2d

132, 143 (Mich. Ct. App. 2004), abrogated on other grounds by Odom v. Wayne County, 760

N.W.2d 217 (Mich. 2008). Thus, Michigan courts have “rejected attempts to transform claims

involving elements of intentional torts into claims of gross negligence.” Id. And in appeals

involving gross-negligence claims under Michigan law, we have “repeatedly” held that

“excessive-force claims disguised as gross-negligence claims” cannot proceed beyond summary

judgment. See, e.g., Naji v. City of Dearborn, 120 F.4th 520, 526 (6th Cir. 2024); Bletz, 641 F.3d

at 756; Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 408 (6th Cir. 2007); Presnall v. Huey,

657 F. App’x 508, 513 (6th Cir. 2016).

My colleagues disagree about whether Kosmalski’s conduct here amounts to gross

negligence and, in turn, whether he is entitled to governmental immunity. But we need not make

that determination because King’s gross-negligence claim is based on the same conduct underlying

her excessive-force claim, meaning it is not cognizable under Michigan law. Her complaint alleges

that “when [Kosmalski] engaged in the wrongful conduct described above” (i.e., the forceful

-10-

No. 24-2017, King v. City of Lincoln Park, et al.

handcuffing), he “engaged in conduct so reckless as to demonstrate a substantial lack of concern

for whether an injury resulted.” Nothing in the district court’s record demonstrates that King’s

gross-negligence claim arises out of any conduct other than the conduct underlying her

handcuffing claim. While we have permitted gross-negligence claims “premised on allegations

that officers were ‘grossly negligent in failing to follow certain procedures and statutory

obligations’ or where the plaintiff can otherwise ‘show that the defendant owed him a duty of

care’” to proceed, Richards v. City of Jackson, 788 F. App’x 324, 336–37 (6th Cir. 2019) (citation

omitted), King does not allege that Kosmalski owed her a duty of care or failed to follow internal

policies or statutory obligations. Therefore, King’s gross-negligence claim is “fully premised on

her claim of excessive force,” VanVorous, 687 N.W.2d at 143, and the district court erred in

allowing this claim to proceed beyond summary judgment.

King’s reliance on Oliver v. Smith, 715 N.W.2d 314, 318 (Mich. Ct. App. 2006), is

“misplaced,” see Chapman v. Mack, 2018 WL 3038528, at *6 (Mich. Ct. App. June 19, 2018) (per

curiam). Although the Michigan Court of Appeals established in Oliver that “handcuffing an

individual too tightly” can constitute gross negligence if “physical injury results,” 715 N.W. 2d at

318, the court clarified in Chapman that “all claims against police officers that involve handcuffs”

are not “automatically gross negligence claims,” 2018 WL 3038528, at *6. Indeed, the court

reiterated that claims based “purely on intentional rather than negligent conduct” constitute

intentional-tort claims, not gross-negligence claims. Id.; see also Jackson v. Lubelan, 2020

WL 5496088, at *13 (Mich. Ct. App. Sept. 10, 2020) (per curiam) (allowing a gross-negligence

claim involving excessive handcuffing to proceed because it was based on the “evidence that

defendants did nothing in response to [plaintiff’s] complaints for approximately 45 minutes to an

hour,” not affirmative, intentional conduct).

-11-

No. 24-2017, King v. City of Lincoln Park, et al.

Because King’s state-law gross-negligence claim is “not cognizable under Michigan law,”

Livermore, 476 F.3d at 408, we reverse the district court’s denial of summary judgment in favor

of Kosmalski on this claim.

V.

For these reasons, we affirm the district court’s denial qualified immunity to Kosmalski on

the excessive-force claim, reverse the denial of governmental immunity to Kosmalski on the gross-

negligence claim, and remand for further proceedings.

-12-

No. 24-2017, King v. City of Lincoln Park, et al.

MATHIS, Circuit Judge, concurring in part and dissenting in part. I agree with the

lead opinion that the district court did not err in denying qualified immunity to Officer Nick

Kosmalski on Sherrell King’s Fourth Amendment excessive-force claim. So I join Parts I, II, and

III of the lead opinion. But I part ways with the lead opinion’s resolution of King’s state-law

gross-negligence claim. In my view, genuine fact issues remain about whether Kosmalski was

grossly negligent during the handcuffing incident with King. Therefore, the district court did not

err in denying state governmental immunity to Kosmalski.

I.

Michigan law generally immunizes a police officer “from tort liability for an injury to a

person” that the officer causes “while in the course of employment.” Mich. Comp. Laws

§ 691.1407(2). The Michigan legislature removes that immunity when the officer’s conduct

“amount[s] to gross negligence.” Id. § 691.1407(2)(c). “‘Gross negligence’ means conduct so

reckless as to demonstrate a substantial lack of concern for whether an injury results.” Id.

§ 691.1407(8)(a). In other words, “[g]ross negligence suggests almost a willful disregard of

precautions or measures to attend to safety and a singular disregard for substantial risks.”

Dougherty v. City of Detroit, 986 N.W.2d 467, 475 (Mich. Ct. App. 2021) (citation modified).

Intentional conduct is not gross negligence. An officer acts intentionally when he “realizes

the risk of his behavior and consciously decides to create that risk.” People v. Datema, 533 N.W.2d

272, 280 (Mich. 1995). “Michigan has rejected attempts to transform claims involving elements

of intentional torts into claims of gross negligence.” Miller v. Sanilac County, 606 F.3d 240, 254

(6th Cir. 2010) (citation modified). That said, “plaintiffs are barred from bringing gross-

negligence claims only if those claims are ‘fully premised’ on alleged intentional torts.” Brent v.

-13-

No. 24-2017, King v. City of Lincoln Park, et al.

Wayne Cnty. Dep’t of Hum. Servs., 901 F.3d 656, 701 (6th Cir. 2018) (quoting VanVorous v.

Burmeister, 687 N.W.2d 132, 143 (Mich. Ct. App. 2004)).

Michigan courts have recognized that excessively tight handcuffing can constitute gross

negligence if it results in physical injury. Oliver v. Smith, 715 N.W.2d 314, 318 (Mich. Ct. App.

2006). But “all claims against police officers that involve handcuffs are [not] automatically gross

negligence claims.” Chapman v. Mack, No. 335678, 2018 WL 3038528, at *6 (Mich. Ct. App.

June 19, 2018) (per curiam). If a “plaintiff has based his claims against [a] defendant purely on

intentional rather than negligent conduct,” then the claim asserts an intentional tort. Id. True, “the

use of handcuffs is an intentional act,” but the injuries that result from using those handcuffs may

be “accidentally—not intentionally—caused.” Jackson v. Lubelan, No. 338275, 2018 WL

3309610, at *2 (Mich. Ct. App. July 5, 2018) (per curiam). In the handcuffing context, an officer

acts intentionally when he “specifically intended to injure the plaintiff with the handcuffs.” Id.

II.

I turn now to the facts of this case. At this stage, the facts must be “viewed in the light

most favorable to” King. See Gillman v. City of Troy, 126 F.4th 1152, 1161–62 (6th Cir. 2025).

“[Q]uestions regarding whether a governmental employee’s conduct constituted gross negligence

are generally questions of fact for the jury.” Wood v. City of Detroit, 917 N.W.2d 709, 714 (Mich.

Ct. App. 2018).

A reasonable trier of fact could find that Kosmalski’s conduct was grossly negligent.

Kosmalski detained King for driving with a suspended license, a nonviolent misdemeanor offense.

King told Kosmalski that she had recently had surgery. Still, Kosmalski refused King’s request to

be “handcuff[ed] . . . in the front.” R. 26-2, PageID 277. When Kosmalski locked King’s

handcuffs—with her hands behind her back—she said “ouch.” Id. at 278. And Kosmalski heard

-14-

No. 24-2017, King v. City of Lincoln Park, et al.

King complain twice about the tightness of the handcuffs. After the first complaint, Kosmalski

did not loosen the handcuffs. He instead double locked the handcuffs to ensure they would not

tighten even more. The second complaint occurred after Kosmalski placed King in his squad car.

Kosmalski ignored King’s second complaint, closed the door, and left her in the squad car for more

than ten minutes. Kosmalski did that even though he faced no exigency or obstacle that prevented

him from rechecking King’s handcuffs. And Kosmalski ignored King’s pleas even though she

was fully compliant and nonviolent throughout the encounter. Afterward, when Kosmalski

removed the handcuffs and heard King complain about wrist pain, he told her that handcuffs were

not meant to be comfortable. The result: King needed multiple surgeries to repair the injuries she

sustained. Taken together, these facts support King’s position that Kosmalski “simply did not care

about [her] safety or welfare.” See Reilly v. Vadlamudi, 680 F.3d 617, 627 (6th Cir. 2012)

(quotation omitted).

To be sure, some evidence favors Kosmalski. He used two sets of handcuffs, checked for

tension after King’s first complaint, and double locked the handcuffs. But such “cherry-picked”

evidence does not erase the fact that Kosmalski “did nothing in response to” King’s second

complaint. Jackson v. Lubelan, No. 350239, 2020 WL 5496088, at *13 (Mich. Ct. App. Sept. 10,

2020) (per curiam). And so, whether Kosmalski’s conduct constitutes gross negligence is a

question of fact for the trier of fact, not one of law for our court to decide. See Beals v. Michigan,

871 N.W.2d 5, 9 (Mich. 2015).

III.

Kosmalski and the lead opinion reach a different conclusion. They believe King’s state-

law tort claim must fail because it arises from the same facts underlying her excessive-force claim.

But not all excessive-force claims involve intentional conduct. Yes, excessive-force claims arising

-15-

No. 24-2017, King v. City of Lincoln Park, et al.

from the use of deadly force, such as the cases the lead opinion relies on, involve intentional

conduct. See Naji v. City of Dearborn, 120 F.4th 520, 522, 526 (6th Cir. 2024); Bletz v. Gribble,

641 F.3d 743, 747, 756 (6th Cir. 2011); Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 408

(6th Cir. 2007); Presnall v. Huey, 657 F. App’x 508, 509, 513 (6th Cir. 2016). So do excessive-

force claims involving tasering or using pepper spray. And handcuffing could involve intentional

conduct if the officer intends to hurt or injure the arrestee. But our precedent allows a person to

succeed on an excessive-force claim for “unduly tight handcuffing” by establishing that she

complained about the tightness of the handcuffs, the officer ignored the complaint, and injury

resulted. Strickland v. City of Detroit, 995 F.3d 495, 508 (6th Cir. 2021) (quotation omitted).

Thus, no intentional conduct is required.

Neither this court nor Michigan courts have held that the same conduct underlying an

excessive-force claim cannot also give rise to state-law tort liability. To the contrary, this court

has upheld the denial of governmental immunity under Michigan law when state-law tort claims

are “heavily dependent on the same disputed material facts as the excessive-force determination

under § 1983.” See, e.g., Shumate v. City of Adrian, 44 F.4th 427, 450–52 (6th Cir. 2022)

(quotation omitted). And Michigan courts have adopted this court’s reasoning in determining that

a plaintiff can maintain a gross-negligence claim for unduly tight handcuffing if physical injury

results. See Oliver, 715 N.W.2d at 318; Jackson, 2020 WL 5496088, at *12–15.

When an officer’s underlying conduct is unintentional yet reckless and harmful—like in

some unduly tight handcuffing cases—that conduct can support both an excessive-force claim and

a state-law gross-negligence claim. See, e.g., Kostrzewa v. City of Troy, 247 F.3d 633, 639–43

(6th Cir. 2001). And so, given that Kosmalski apparently did not intend to harm King—a point

no one disputes—a trier of fact could find that Kosmalski’s conduct amounted to gross negligence.

-16-

No. 24-2017, King v. City of Lincoln Park, et al.

IV.

For these reasons, the district court did not err in denying summary judgment to Kosmalski

on King’s state-law gross-negligence claim.

-17-

No. 24-2017, King v. City of Lincoln Park, et al.

LARSEN, Circuit Judge (concurring in the judgment in part and dissenting in part).

Government officials are entitled to qualified immunity unless the plaintiff can carry the burden

of showing that the official violated a clearly established constitutional right. Here, King has failed

to meet that burden, so I would reverse the district court’s denial of qualified immunity on her

Fourth Amendment claim. I also would reverse the district court’s decision denying Officer

Kosmalski governmental immunity on King’s gross-negligence claim under Michigan law. In my

opinion, Kosmalski’s conduct didn’t rise to the level of gross negligence—that is, it didn’t

constitute conduct “so reckless as to demonstrate a substantial lack of concern for whether an

injury results.” Mich. Comp. Laws § 691.1407(8)(a).

I.

For qualified immunity, we ask (1) whether plaintiff’s constitutional rights were violated,

and (2) whether those rights were clearly established. Pearson v. Callahan, 555 U.S. 223, 231

(2009). We can address the prongs in either order. See id. at 236. In my opinion, Officer

Kosmalski is entitled to qualified immunity because, at a minimum, King has failed to meet her

burden of establishing that any violation of her constitutional rights was clearly established. See

Johnson v. Moseley, 790 F.3d 649, 653 (6th Cir. 2015).

“[F]or a right to be clearly established, existing precedent must have placed any statutory

or constitutional question beyond debate.” White v. Pauly, 580 U.S. 73, 79 (2017) (per curiam)

(citation omitted). Here, King had “to identify a case where an officer acting under similar

circumstances as Officer [Kosmalski] was held to have violated the Fourth Amendment.” Id.

General statements of law won’t suffice. Id. And “[s]pecificity is especially important in the

Fourth Amendment context”—existing precedent must “squarely govern[] the specific facts at

issue.” Kisela v. Hughes, 584 U.S. 100, 104 (2018) (citation omitted).

-18-

No. 24-2017, King v. City of Lincoln Park, et al.

To meet her burden, King was required to come forward with published caselaw showing

that the law is clearly established. See Bell v. City of Southfield, 37 F.4th 362, 368 (6th Cir. 2022).

King primarily relies on two cases—Morrison v. Board of Trustees of Green Township, 583 F.3d

394 (6th Cir. 2009), and Baynes v. Cleland, 799 F.3d 600 (6th Cir. 2015). Neither squarely governs

the specific facts at issue here.

Recall those facts. When Kosmalski began to handcuff King, she asked not to be

handcuffed in the back because she recently had breast cancer surgery. Showing attention to that

concern, Kosmalski said that he would use two pair of handcuffs linked together. Once Kosmalski

put the handcuffs on King, she said that the handcuffs were “kinda tight.” Both officers on the

scene then checked the tightness of the handcuffs by placing a finger between a cuff and King’s

wrist. This was done to ensure that there was “ample space.” Kosmalski also double locked the

handcuffs, meaning they could not be inadvertently loosened nor tightened. From there, the

officers escorted King to their patrol car. As the officers placed King in the vehicle, she

said: “This shit hurt in the back, on my wrist.” Kosmalski didn’t respond or check the handcuffs

again. King was handcuffed for about fifteen minutes total.

Now the cases offered by King. She points to Morrison v. Board of Trustees of Green

Township, 583 F.3d 394 (6th Cir. 2009). There, the plaintiff complained that the handcuffs were

too tight. Id. at 398. Although the officer said that “he responded to the complaint by sticking his

finger in between the handcuffs and [the plaintiff’s] skin to make sure they were not ‘too tight,’”

the plaintiff and a witness “testified that he disregarded the complaint and refused to loosen the

handcuffs.” Id. at 402. To make matters worse, the officer then said “that he could place the

handcuffs on ‘as tight as he wanted to and that’s how they were staying.’” Id.

-19-

No. 24-2017, King v. City of Lincoln Park, et al.

Morrison doesn’t squarely govern the conduct here. It didn’t involve two complaints in

quick succession as we have in this case. And it doesn’t even appear to involve an officer who

actually checked the tightness of the handcuffs. Rather, the plaintiff’s testimony, which must be

taken as true at the summary judgment stage, was that the officer didn’t check and instead

responded callously. Contrast that with Kosmalski’s conduct here, in which he sought to

accommodate King’s concerns about pain by linking two pairs of handcuffs together, made sure

the handcuffs were double locked so they couldn’t slip, and immediately responded to her first

complaint by checking to ensure there was ample space. Morrison does nothing to put Kosmalski

on notice that he had to check the handcuffs again a few moments later.

King’s second case—Baynes v. Cleland, 799 F.3d 600 (6th Cir. 2015)—is equally

inapposite. To be sure, Baynes read Morrison to stand for the proposition “that a dismissive

response from an officer is sufficient to meet the second prong of a claim for excessively forceful

handcuffing.” Id. at 609. But that general rule can’t create a clearly established right in this case

because the facts aren’t sufficiently similar. In Baynes, the plaintiff complained separately to two

officers about the tightness of the handcuffs. Id. at 608–09. Neither ever responded, id., unlike

Kosmalski here. Nothing about the factual situation in Baynes would put an officer on notice that

he had a duty to check the handcuffs again just a few moments after checking the first time. And

that includes the panel’s later broad statement that “[a]s early as 1993, we held that it was clearly

established law in this circuit in 1991 . . . that excessively forceful handcuffing violates the Fourth

Amendment prohibition against excessive force.” Id. at 613. Such general statements of the law

are insufficient to render the law clearly established, White, 580 U.S. at 79, and the Supreme Court

has made clear, after Baynes, that this is especially true in the excessive force context, Kisela, 584

U.S. at 104. Baynes doesn’t cover the conduct here. As a result, King has failed to meet her

-20-

No. 24-2017, King v. City of Lincoln Park, et al.

burden of establishing that Kosmalski wasn’t entitled to qualified immunity. So I would reverse

the district court’s denial of qualified immunity on this claim.

II.

For King’s gross negligence claim under Michigan law, she must demonstrate that

Kosmalski’s conduct was “so reckless as to demonstrate a substantial lack of concern for whether

an injury results.” Mich. Comp. Laws § 691.1407(8)(a). “Gross negligence suggests almost a

willful disregard of precautions or measures to attend to safety and a singular disregard for

substantial risks.” Dougherty v. City of Detroit, 986 N.W.2d 467, 475 (Mich. Ct. App. 2021)

(citation omitted). “[S]imply alleging that an actor could have done more is insufficient to meet

the standard for gross negligence under the GTLA.” Id. (citation omitted).

Assuming that King’s gross negligence claim is cognizable under Michigan law, her claim

fails because Kosmalski’s conduct does not rise to the level of gross negligence. As explained

previously, King asked not to be handcuffed in the back because she recently had breast cancer

surgery. Kosmalski didn’t disregard this request but attempted to accommodate her concerns by

using two handcuffs linked together. And once King complained that the handcuffs were “kinda

tight,” both officers checked the tightness of the handcuffs by placing a finger between a cuff and

King’s wrist. This was done to ensure that there was “ample space.” Kosmalski also double

locked the handcuffs, meaning they could not be inadvertently loosened nor tightened. So up until

that point, Kosmalski’s conduct was far from “a willful disregard of precautions or” safety

measures, but rather an ample regard for them. See id; see also Tarlea v. Crabtree, 687 N.W.2d

333, 340 (Mich. App. 2004) (“[T]he coaches’ conduct showed that they performed their duties in

a manner that exhibited care and concern for the student athletes. Rather than a substantial lack of

concern, the coaches showed substantial concern for the well-being of their students.”). Does

-21-

No. 24-2017, King v. City of Lincoln Park, et al.

King’s complaint a minute later change Kosmalski’s otherwise reasonable response to gross

negligence? It does not. Having checked the locks minutes before, not checking them again

doesn’t amount to “a singular disregard for substantial risks.” Id. at 339. At most, Kosmalski

could have done more, but that’s insufficient to show gross negligence. Id. Accordingly, King’s

gross negligence fails, and I would reverse the district court’s conclusion to the contrary.

***

I respectfully concur in the judgment in part and dissent in part.

-22-