Fisher v. City of Las Cruces

FILED

United States Court of Appeals

Tenth Circuit

October 19, 2009

PUBLISH Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT FISHER and MARY

FISHER,

Plaintiffs-Appellants,

v.

THE CITY OF LAS CRUCES, a

municipality organized pursuant to the

laws of the State of New Mexico, and

its subsidiary, the Las Cruces Police

Department; OFFICER JOANN

CHRISTINE SCHNELL, a law

enforcement officer employed by the

Las Cruces Police Department, No. 07-2294

individually and in her official

capacity as a police officer; OFFICER

ROBERTO GUTIERREZ, a law

enforcement officer employed by the

Las Cruces Police Department,

individually and in his official

capacity as a police officer;

OFFICERS JOHN/JANE DOE, 1-5,

law enforcement officers employed by

the Las Cruces Police Department,

individually and in their official

capacities as police officers,

Defendants-Appellees.

Appeal from the United States District Court

for the District of New Mexico

(D.C. No. CIV-07-00421-RB-CEG)

Dennis W. Montoya, Montoya Law, Inc., Rio Rancho, N.M., for Plaintiffs-

Appellants.

Jared Abrams, City of Las Cruces, N.M., for Defendants-Appellees.

Before BRISCOE, TYMKOVICH, and GORSUCH, Circuit Judges.

TYMKOVICH, Circuit Judge.

After Robert Fisher mistakenly shot himself twice, his wife called 911.

Two officers responded to the call. Fisher alleges, despite the seriousness of the

gunshot wounds to his bicep and stomach, the officers handcuffed him in a

painful manner that exacerbated his injuries. Fisher filed suit, claiming the

officers violated 42 U.S.C. § 1983 by employing excessive force in violation of

his Fourth Amendment rights.

The district court disagreed and granted summary judgment to the officers

on qualified immunity grounds. The court concluded that, although the force used

by the officers was excessive, the resulting injuries themselves were insufficient

as a matter of law under our precedent to permit recovery.

Taking Fisher’s allegations as true, we conclude a reasonable jury could

find his injuries sufficient to satisfy our minimal threshold injury requirement.

Accordingly, we REVERSE.

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I. Background

After consuming at least two doses of Xanax, an anti-anxiety prescription

medication, and the better part of a pint of vodka, Robert Fisher passed out in his

backyard. 1 When he awoke, he began to hallucinate that a large animal was

threatening him. Fisher ran inside, retrieved a 9 millimeter handgun, and returned

to the backyard to confront the illusion. Staggering and delirious, Fisher instead

accidentally shot himself in the stomach. As he fell to his knees, his gun

discharged again and a second bullet struck him in the left bicep.

Fisher’s wife, Mary Fisher, was inside the house and heard Fisher’s cries

for help. She called 911 to report that her husband had shot himself. In response

to the operator’s question whether Fisher had threatened her with the gun, she

answered “No, not me.” Aplt. App. 65. She also told the operator that her

husband had said he was “tired of living” and that he “obviously had too much to

drink.” Id. at. 67. While talking to the operator, Mary Fisher walked outside,

apprehended the gun, and placed it in the kitchen.

The 911 operator broadcast a call regarding the incident. Officers Joann

Schnell and Roberto Gutierrez, members of the Las Cruces police department,

responded. According to the officers, dispatch reported either that an individual

had shot himself, or that an individual was suicidal and shots had been fired.

1

We recount the facts in the light most favorable to the summary judgment

non-movant.

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When the officers arrived at the Fishers’ residence, Mary Fisher was standing

outside the front door to greet them. She informed the officers no one else was at

the residence aside from herself and her husband, and her husband no longer had

the gun. She showed them the gun in the kitchen.

The officers ordered Mary Fisher to stay in the house and walked with their

guns drawn into the backyard. They found Fisher kneeling in a crouched

position, with his shirt off, and his fresh wounds clearly visible. With Officer

Gutierrez’s gun trained on Fisher, Officer Schnell frisked him for weapons and

found none. In response to the officers’ questions, Fisher confirmed that the only

other person around was Mary Fisher. Fisher then showed his wounds to the

officers.

At that point, Officer Gutierrez returned to the house to retrieve the gun,

leaving Officer Schnell alone with Fisher. Officer Schnell sought to provide

some medical assistance to Fisher by pressing Fisher’s discarded shirt to his

stomach and bicep in an effort to staunch the bleeding. Fisher’s bicep was, as he

later related, “quickly swelling into the size of a grapefruit,” and he told Officer

Schnell he thought one bullet still might be lodged in his body. Aplt. App. 77.

Returning to the yard with Fisher’s gun in his possession, Officer Gutierrez

ordered Fisher to lay flat on his wounded stomach and spread his arms over his

head. Fisher did not comply, telling the officers that he could not do so because

of his injuries. Officer Gutierrez repeated his orders and Fisher again did not

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comply. Despite Fisher’s resistance, Officer Schnell then proceeded to handcuff

Fisher behind his back, a process that necessitated, because of the swelling to

Fisher’s bicep, that she place her knee into Fisher’s back in order to leverage his

arms behind his body.

Fisher begged not to be handcuffed in this manner. As he later reported: “I

protested the handcuffing behind my back. I told the officers that it was not

necessary and to consider my wounds. . . . I begged her not to handcuff me

behind my back.” Aplt. App. 77. The manner in which he was handcuffed—with

a knee to his back, placing pressure on his stomach wound, and with his arms

brought behind his body—caused, in Fisher’s words, “excruciating pain. It felt

like my bicep was tearing.” Id. at 78.

In due course, Fisher brought suit under 42 U.S.C. § 1983, contending that

Officers Schnell and Gutierrez used excessive force in violation of his Fourth

Amendment rights. The officers moved for summary judgment on the basis of

qualified immunity. The district court granted their motion and entered a final

judgment against Fisher. In doing so, the district court agreed with Fisher that the

force used by the officers was excessive, but held that his claim was precluded as

a matter of law because he had not proffered sufficient evidence that he suffered a

non-de minimis injury.

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II. Discussion

As always, we assess the district court’s grant of summary judgment de

novo, and view the facts, and all reasonable inferences those facts support, in the

light most favorable to the non-movant. Hinds v. Sprint/United Mgmt. Co., 523

F.3d 1187, 1195 (10th Cir. 2008). But, “[b]ecause of the underlying purposes of

qualified immunity, we review summary judgment orders deciding qualified

immunity questions differently from other summary judgment decisions.” Medina

v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001).

When a defendant asserts qualified immunity at summary judgment, the

burden shifts to the plaintiff, who must clear two hurdles in order to defeat the

defendant’s motion. The plaintiff must demonstrate that on the facts alleged the

defendant violated his or her constitutional or statutory rights. In addition, the

plaintiff must show that the right was clearly established at the time of the alleged

unlawful activity. Pearson v. Callahan, 129 S. Ct. 808, 815–16, 818 (2009). “In

short, although we will review the evidence in the light most favorable to the

nonmoving party, the record must clearly demonstrate the plaintiff has satisfied

his heavy two-part burden; otherwise, the defendants are entitled to qualified

immunity.” Martinez v. Carr, 479 F.3d 1292, 1295 (10th Cir. 2007) (citation

omitted).

Beginning in Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court

required us to consider each of the plaintiff’s burdens in a sequential fashion:

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first to consider whether a right had been violated, and then—and only then—to

determine whether the right was clearly established at the time of the alleged

violation. Id. at 200. The Court recently reconsidered this approach and retired

the “rigid order of battle.” We now use our discretion to decide “which of the

two prongs of the qualified immunity analysis should be addressed first in light of

the circumstances in the particular case at hand.” Pearson, 129 S. Ct. at 817–18;

see also Christensen v. Park City Mun. Corp., 554 F.3d 1271, 1277 (10th Cir.

2009). The Court offered many factors for our consideration in deciding when

and how to exercise this discretion. But the question whether to proceed directly

to the second prong arises, of course, only when qualified immunity is granted.

To secure the denial of qualified immunity, a plaintiff still bears the burden of

establishing both Saucier prongs. And that is the situation in which we now find

ourselves.

We thus proceed to analyze his appeal addressing both prongs.

A. Constitutional Violation

The first question is whether Fisher has demonstrated a reasonable jury

could find that the officers violated his Fourth Amendment rights by applying

excessive force. As a threshold matter, we agree with the district court that the

initial decision to handcuff Fisher was not unreasonable. Rather, the issue here is

whether in these circumstances the manner in which the officers handcuffed

Fisher, forcibly behind his back while he suffered from gun shot wounds,

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constituted excessive force. “If the plaintiff can prove that the officers used

greater force than would have been reasonably necessary to effect a lawful arrest,

he is entitled to damages resulting from that excessive force.” Cortez v.

McCauley, 478 F.3d 1108, 1127 (10th Cir. 2007).

Our recent cases guide this analysis. In Cortez we explained that in a

handcuffing case “to recover on an excessive force claim, a plaintiff must show:

(1) that the officers used greater force than would have been reasonably necessary

to effect a lawful seizure, and (2) some actual injury caused by the unreasonable

seizure that is not de minimis, be it physical or emotional.” Id. at 1129 n.25.

We first lay out relevant background principles, and then address each

element in turn.

1. Background Principles

The Fourth Amendment protects individuals from “unreasonable . . .

seizures,” U.S. Const. amend. IV, and courts have long recognized that the

reasonableness of a seizure depends not just on why or when it is made, but also

on how it is accomplished. Graham v. Connor, 490 U.S. 386, 395 (1989). The

touchstone of the reasonableness inquiry in an excessive force claim, as in any

other claim arising out of the Fourth Amendment, is whether the officers’ actions

are objectively unreasonable. The inquiry focuses not on the officers’ particular

motivations, nor on the arrestee’s subjective perception of the intrusion, but on

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“whether the officers’ actions are ‘objectively reasonable’ in light of the facts and

circumstances confronting them.” Id. at 397.

In considering this question, we are mindful that the Fourth Amendment

“does not require [police] to use the least intrusive means in the course of a

detention, only reasonable ones.” Marquez v. City of Albuquerque, 399 F.3d

1216, 1222 (10th Cir. 2005) (citation omitted). “Not every push or shove, even if

it may later seem unnecessary in the peace of a judge’s chambers, violates the

Fourth Amendment.” Graham, 490 U.S. at 396 (citation and quotation marks

omitted). And we take seriously that this “calculus of reasonableness must

embody allowance for the fact that police officers are often forced to make

split-second judgments—in circumstances that are tense, uncertain, and rapidly

evolving—about the amount of force that is necessary in a particular situation.”

Id. at 396–97.

Though the Fourth Amendment’s reasonableness inquiry notoriously eludes

easy formula or bright line rules, see Priester v. City of Riviera Beach, 208 F.3d

919, 926 (11th Cir. 2000) (observing that “generally no bright line exists for

identifying when force is excessive”), the Supreme Court has delineated three,

non-exclusive factors relevant to our excessive force inquiry: “[1] the severity of

the crime at issue, [2] whether the suspect poses an immediate threat to the safety

of the officers or others, and [3] whether he is actively resisting arrest or

attempting to evade arrest by flight.” Graham, 490 U.S. at 396.

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In recently applying the balancing factors of Graham, the Supreme Court

recognized that handcuffing was an appropriate response to officer-safety

concerns even during investigative detentions. Muehler v. Mena, 544 U.S. 93,

100 (2005). But the justifiable initial use of handcuffs can become unreasonable

if other factors, such as prolonged duration, “affect the balance of interests under

Graham.” Id.

2. Use of Force

Assessing the Graham factors—and the overall objective reasonableness of

the situation—we conclude that a reasonable jury could (even if it need not) find

the force used by the officers in their handcuffing of Fisher greater than would

have been reasonably necessary to effect a lawful seizure.

First, any crime the officers reasonably could have suspected Fisher of

having committed was a petty misdemeanor. The only criminal ordinance

covering Fisher’s conduct, or at least the only one the parties have suggested

might apply, is the firing of a firearm within city limits. See Las Cruces, N.M.,

Mun. Code § 19-164. But that offense is treated by Las Cruces as a petty

misdemeanor, see Las Cruces, N.M., Mun. Code § 1-10(c)—the least serious of

the three classes of state criminal offenses, see N.M.S.A. 1978 § 30-1-6. It is

classified under Las Cruces’s municipal code in the same manner as stealing

books from the public library, see Las Cruces, N.M., Mun. Code § 1-10(c), § 19-

51. Given this, we cannot say the officers were faced with a severe crime under

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the laws of the municipality they were charged with enforcing. See Fogarty v.

Gallegos, 523 F.3d 1147, 1160 (10th Cir. 2008) (finding a crime non-severe in

excessive force analysis because it was a misdemeanor under state law); Casey v.

City of Fed. Heights, 509 F.3d 1278, 1281 (10th Cir. 2007) (same).

We do not suggest that discharging a firearm is or should always be treated

this way by legislatures—only that the municipality whose laws the officers were

charged with enforcing made such a judgment. We have no doubt that other

municipalities may see the issue differently. Thus, although we do not intend to

belittle the seriousness of firing shots in a residential neighborhood, this first

factor favors Fisher.

The second Graham factor—whether the officers had reason to fear for

their safety or the safety of others—poses a close call. The officers had reason to

be concerned both for their safety and that a serious crime might be afoot when

they arrived on the scene. They knew a potentially suicidal person was there,

possibly armed, and that shots had been fired. But no one disputes the amount of

force the officers employed upon first entering the backyard. They were surely

entitled to enter with their guns drawn and to proceed with great caution.

Instead, Fisher contends that by the time the officers decided to handcuff

him forcibly behind his back, a reasonable jury could conclude that Fisher was no

longer a threat to himself, others, or the officers. We take seriously the

admonition that we must judge the amount of force used “from the perspective of

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a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”

Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1259 (10th Cir. 2008).

But we also acknowledge, in Fisher’s favor, that by the time the officers

handcuffed Fisher, the officers had frisked Fisher; had taken possession of the

gun he had fired; had witnessed the severity of Fisher’s wounds; and had started

to provide Fisher with first aid to stop the flow of blood. Prior to taking Fisher

into custody, the officers also felt comfortable enough with the situation to leave

Officer Schnell alone with Fisher, un-handcuffed. See Parker v. Gerrish, 547

F.3d 1, 10 (1st Cir. 2008) (finding a reasonable jury could conclude plaintiff did

not pose a threat to officers because the officers did not treat plaintiff as a threat

during the encounter). Moreover, whatever the extant threat, the manner in which

they handcuffed Fisher behind his back was aggressive and apparently painful. 2

Finally, the third Graham factor favors Fisher: a reasonable jury could

fairly conclude that Fisher was not actively resisting arrest. When the officers

happened upon him, he did not move but remained kneeling, with his hands

clearly visible. By all accounts, he cooperated in answering the officers’

questions. It was only when asked to lie down flat on his wounded abdomen so

2

The officers dispute these allegations, and that factual dispute is one for

the jury. Depending on the circumstances, an officer on the scene may have

greater personal or public safety concerns during an encounter. And in those

cases, an officer may reasonably believe the suspect poses less of a threat

handcuffed with his hands behind his back than handcuffed with his arms in front

of him.

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the officers could handcuff him behind his back that Fisher begged the officers to

take account of his injuries, and, subsequently, not to handcuff him in this

manner. Although one might see this as some form of resisting arrest, viewing

the facts in the light most favorable to Fisher, a reasonable juror could conclude

he was not resisting arrest, but was only pleading to be handled and handcuffed in

a fashion that did not exacerbate his injuries.

In sum, we conclude a reasonable jury could find that the officers employed

greater force than would have been reasonably necessary under the circumstances.

* * *

We hasten to add this might be a very different case if the officers had no

knowledge of Fisher’s injuries or handcuffed him in front of his body. See

Rodriguez v. Farrell, 280 F.3d 1341, 1352–53 (11th Cir. 2002) (concluding

officer did not use excessive force when he handcuffed plaintiff’s arms behind his

back, despite the fact that handcuffing led to eventual amputation of one arm,

because officer did not know of plaintiff’s preexisting injury). Or if Fisher had

refused to cooperate with the officers. See Estate of Larsen, 511 F.3d at 1260–61

(emphasizing a suspect’s refusal to cooperate as an important factor in finding the

officer’s use of force against suspect reasonable). Or if Fisher had uttered no

complaint about the possible exacerbation of his injuries. See Lyons v. City of

Xenia, 417 F.3d 565, 576 (6th Cir. 2005) (finding a plaintiff did not make out

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excessive force claim where the plaintiff failed to complain to the officers that the

handcuffing caused her pain).

But a reasonable jury could find the officers in this case knew that (1)

Fisher was generally cooperative, (2) he suffered from grave injuries in need of

immediate medical attention, and (3) the actions the officers took could have

seriously aggravated his injuries. In such circumstances, a finding that the

officers used greater force than would have been reasonably necessary can hardly

be ruled beyond the pale of a triable claim.

3. Injury

The Graham factors help channel our evaluation of the application of force

used in a particular encounter. But in nearly every situation where an arrest is

authorized, or police reasonably believe public safety requires physical restraint,

handcuffing is appropriate. See Cortez, 478 F.3d at 1130 (citing United States v.

Perdue, 8 F.3d 1455, 1463 (10th Cir. 1993)). And the Graham factors are less

helpful in evaluating the degree of force applied in cases, like the handcuffing

case here, where the handcuffing is permissible yet the manner of handcuffing

may render the application of force excessive. In those cases, an examination of

the resulting injury supplements our inquiry.

That is where the defendants focus their arguments here. Indeed, the

defendants urge, and the district court held, that Fisher’s excessive force theory

fails because he presented insufficient proof that his injury was more than de

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minimis. Although the defendants recognize Fisher testified that the pain he felt

was “excruciating,” and that during the officers’ actions he felt as though his

bicep was “tearing,” Aplt. App. 78, they submit these statements are insufficient

proof of an actual, non-de minimis injury. 3 Although we agree with the approach

taken by the district court, we cannot agree with the court’s conclusion that a

reasonable jury could not find the injury alleged here was more than de minimis.

To recover on his handcuffing claim, Fisher must show both that the force

used was more than reasonably necessary and “some actual injury caused by the

unreasonable seizure that is not de minimis, be it physical or emotional.” Cortez,

478 F.3d at 1129 n.25 (emphasis added). As we explained, “unduly tight

handcuffing can constitute excessive force where a plaintiff alleges some actual

injury from the handcuffing and alleges that an officer ignored a plaintiff’s timely

complaints (or was otherwise made aware) that the handcuffs were too tight.” Id.

at 1129.

3

Fisher also testified that “Dr. Jane, my neurologist, has informed me that

the officers’ actions did in fact exacerbate my injuries.” Aplt. App. 78. But, as

the City rightly notes and the district court held, this statement is hearsay and

thus inadmissible in a summary judgment proceeding. See Young v. Dillon Cos.,

Inc., 468 F.3d 1243, 1252 (10th Cir. 2006) (court may not consider hearsay

evidence in affidavits submitted in support of, or in opposition to, summary

judgment).

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Manner or course of handcuffing

The same analysis controls in this case. Handcuffing claims, in essence,

concern the manner or course in which a petitioner is handcuffed. 4 Because

handcuffing itself is not necessarily an excessive use of force in connection with

an arrest, a plaintiff must show actual injury in order to prove that the officer

used excessive force in the course of applying handcuffs. In short, without the

handcuffing there would be no excessive force claim.

Our holding in Cortez acknowledged—and did not overrule—our prior

conclusion that in excessive force cases “proof of physical injury manifested by

visible cuts, bruises, abrasions or scars, is not an essential element.” Id. at 1129

n.24 (citing Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1195 (10th

Cir. 2001 (emphasis added)). Rather “the interests protected by the Fourth

Amendment are not confined to the right to be secure against physical harm; they

4

Other circuits agree. See, e.g., Marvin v. City of Taylor, 509 F.3d 234,

247–48 (6th Cir. 2007) (explaining that “an excessive force claim can be

premised on handcuffing, i.e., the right not to be handcuffed in an objectively

unreasonable manner was clearly established”); Freeman v. Gore, 483 F.3d 404,

417 (5th Cir. 2007) (“[M]inor incidental injuries that occur in connection with the

use of handcuffs to effectuate an arrest do not give rise to a constitutional claim

for excessive force”); Kopec v. Tate, 361 F.3d 772, 778 (3d Cir. 2004) (finding

petitioner’s allegations and facts, if credited, would establish excessive force on a

tight handcuffing claim, and holding that the right of an arrestee to be free from

the use of excessive force “in the course of his handcuffing” was clearly

established); Braun v. Baldwin, 346 F.3d 761, 763 (7th Cir. 2003) (“Braun also

claims to have been subjected to excessive force in the course of his arrest,

mainly because the handcuffs were fastened too tightly, . . . but as there is no

indication that his arrest was effected in an unusual or improper manner, the

excessive-force claim has no possible merit.”).

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include liberty, property, and privacy interests—a person’s sense of security and

individual dignity.” Holland, 268 F.3d at 1195. We thus have consistently

continued to reject “a bright-line rule requiring plaintiffs to demonstrate physical

[as opposed to other] injury when bringing excessive force claims.” Vondrak v.

City of Las Cruces, 535 F.3d 1198, 1208 (10th Cir. 2008), cert. denied, 129 S. Ct.

1003 (2009) (emphasis added). What we do require, though, is actual harm

whether it be “physical or emotional.” Cortez, 478 F.3d at 1129 n.25. This rule

also has the salutary side effect of weeding out weak or frivolous claims.

We are equally consistent that in handcuffing cases, a plaintiff must

establish some non-de minimis actual injury. Id.; see Vondrak, 535 F.3d at 1208

(“[W]hen an excessive force claim relies upon unduly tight handcuffing, we have

held that the plaintiff must show ‘some actual injury.’”); see also Segura v. Jones,

259 F. App’x 95, 103–04 (10th Cir. 2007) (finding no more than a de minimis

injury as a result of tight handcuffing or of the officer pushing petitioner against a

wall in order to place handcuffs on her).

A number of circuits agree and have adopted some form of a non-de

minimis injury requirement in excessive force handcuffing cases. 5 See, e.g.,

Freedman v. Gore, 483 F.3d 404, 416–17 (5th Cir. 2007) (“[M]inor, incidental

5

Even so, the jurisprudence in this context is muddled. See Bryan N.

Georgiady, Note, An Excessively Painful Encounter: The Reasonableness of Pain

and De Minimis Injuries for Fourth Amendment Excessive Force Claims, 59

Syracuse L. Rev. 123, 137–38 (2008) (discussing the circuit split).

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injuries that occur in connection with the use of handcuffs to effectuate an arrest

do not give rise to a constitutional claim for excessive force.”); Lyons, 417 F.3d

at 575–76 (explaining that in order to reach a jury on a handcuffing claim, “the

plaintiff must allege some physical injury from the handcuffing”); Tarver v. City

of Edna, 410 F.3d 745, 752 (5th Cir. 2005) (“Although we no longer require

‘significant injury’ for excessive force claims . . . the injury must be more than de

minimis.”); Crumley v. City of St. Paul, 324 F.3d 1003, 1008 (8th Cir. 2003)

(“[F]or the application of handcuffs to amount to excessive force there must be

something beyond allegations of minor injuries.”).

The concurrence worries that our rule will allow legitimate claims to fall

through the cracks for want of sufficient injury. We disagree. The injury alleged

here obviously occurred during the officers’ handcuffing of Fisher—during the

application of handcuffs itself. It is not a case where brutal or excessive force

exists independent of the handcuffing or where handcuffing simply occurs at

some point, by happenstance. While one can imagine a fact setting that could fall

into a grey area during an encounter that results in a handcuffing, our holding in

Cortez demonstrates that we will have little trouble in sorting out excessive force

allegations that are a part of handcuffing. 6 Cortez does not require us to apply a

6

We do not agree with the concurrence that Buck v. City of Albuquerque,

549 F.3d 1269, 1290 (10th Cir. 2008), rejected a de minimis injury requirement

where the injury occurs during the course of handcuffing. The facts of the case

make it clear why not. Doyon (the only person even handcuffed) did not attempt

(continued...)

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different showing when the excessive force claim involves the officers’ actions in

applying handcuffs—a manner of handcuffing claim—as compared to an

excessive force claim that involves only a complaint that the handcuffs were put

on too tightly. 7

6

(...continued)

to flee, or pose a threat to any officer or individual, but nonetheless, the “officers

grabbed him, dragged him, and pushed him face down on the pavement. One

officer kneed him in the back and pinned him to the ground. An officer pushed

him face forward onto the roof of a police car, and he was exposed to tear gas

while handcuffed in the car.” Id. at 1290. Although in the opinion’s background

section the court noted that Doyon was handcuffed after being pushed onto the

police car, the excessive force discussion did not mention handcuffing other than

to state that Doyon was exposed to gas while handcuffed in the police car.

Buck, in short, cannot fairly be read as a case in which excessive force

arises solely from the manner in which officers applied handcuffs, rather than

from force independent of the handcuffing itself.

7

The concurrence raises one final point: the Supreme Court has disavowed

a “significant injury” requirement in the Eighth Amendment context in assessing

whether excessive force is cruel and unusual punishment. Hudson v. McMillian,

503 U.S. 1, 7 (1992). We agree, but see no conflict with Cortez. Our Fourth

Amendment framework as set forth in Cortez (which came after Hudson) does not

adopt a significant injury standard, but instead a lower de minimis injury one.

Other courts also recognize this distinction. See, e.g., Glenn v. City of Tyler, 242

F.3d 307, 314 (5th Cir. 2001); see also Bastien v. Goddard, 279 F.3d 10, 15 &

n.6, 7 (1st Cir. 2002) (rejecting a significant injury requirement in the Fourth

Amendment context following Hudson).

Additionally, unlike in the Fourth Amendment context where subjective

motivations are irrelevant, see, e.g., Graham, 490 U.S. at 397, an important

concern in the Eighth Amendment context is whether the force was applied

maliciously and sadistically. “Differing standards under the Fourth and Eighth

Amendments are hardly surprising: the terms ‘cruel’ and ‘punishments’ clearly

suggest some inquiry into subjective state of mind, whereas the term

‘unreasonable’ does not.” Graham, 490 U.S. at 398. In framing a claim based in

(continued...)

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In sum, this case requires us not to extend Cortez, but to apply it. We are

bound by circuit precedent, and see no significant analytical distinctions between

an injury occurring because an officer fastens handcuffs too tightly and an injury

arising out of the officer’s manner of applying handcuffs. There may well be a

nuanced distinction here, but the more obvious reading of Cortez is that it applies

to those circumstances as well. And for now we are bound by Cortez.

Applying Cortez

Accordingly, our precedent requires a showing in a handcuffing case of an

actual, non-de minimis physical, emotional, or dignitary injury to succeed on a

claim. Applying Cortez, as explained above, we agree with the district court that

a reasonable jury could find the officers used greater force than would have been

reasonably necessary to effect a lawful seizure. We also conclude that on the

facts alleged, a reasonable jury could conclude Fisher has shown some actual

injury that is not de minimis.

Taking Fisher’s affidavit together with the surrounding circumstances, a

reasonable jury could find our actual injury requirement satisfied. The objective

facts (viewed in the light most favorable to Fisher) are compelling on this score.

(1) At the time the officers encountered Fisher, they knew he had shot

himself and lay bleeding on the ground.

7

(...continued)

part on the malevolent state of mind of the defendant, it follows that a significant

injury would not be a prerequisite to recovery.

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(2) His shirt was off and the gunshot wounds from his bicep and stomach

were obvious.

(3) The officers tried to help staunch the wounds with a shirt or towel.

(4) The bicep wound had swollen to the size of a grapefruit.

(5) When told he was to be handcuffed behind his back, Fisher pleaded

with the officers to avoid exacerbating the injuries.

(6) Nonetheless, an officer placed a knee in Fisher’s back to leverage his

arms, and handcuffed him with his arms behind his back.

(7) At that point, as Fisher alleges, “the officers’ actions in forcing my

arms behind my back despite my injuries caused me to endure excruciating

pain. It felt like my bicep was tearing. I believe that their actions

exacerbated my injuries.” Aplt. App. 78.

This case does not involve only a self-serving affidavit asserting pain

alone, without corroborating facts. Instead, although Fisher easily could have

done more to document the seriousness of his injuries, Fisher has established a

reasonable jury could conclude from the alleged objective facts that the extreme

manner of handcuffing caused him a more than de minimis injury.

These facts stand in contrast with those cases where a plaintiff complains

only of fleeting discomfort from handcuffing, or red marks or swelling that

disappear in a few hours or days. Cf. Cortez, 478 F.3d at 1129 (concluding the

injury was insufficient to support an excessive force claim when the only

evidence in the record was Cortez’s affidavit asserting that the handcuffs left red

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marks that were visible for days). Here, if the facts are as alleged, Fisher

experienced an actual injury. 8

In sum, the “objective facts of this case (when viewed in the light most

favorable to the Plaintiffs, not the Defendants) are sufficient for a jury to find

actual injury that is not de minimis given the interests protected by the Fourth

Amendment and the course of events described by the Plaintiffs.” Cortez, 478

F.3d at 1132 n.28 (emphasis added).

Consequently, Fisher has sufficiently alleged a constitutional violation for

qualified immunity purposes.

B. Clearly Established Law

8

Compare Kopec, 361 F.3d at 777–78 & n.7 (finding a triable claim on

excessive force due to handcuffing when the petitioner estimated that it took the

officer ten minutes to loosen the handcuffs despite the severe pain they were

causing and his efforts to secure their release; the petitioner fell to the ground and

fainted with pain, and the petitioner asserted he suffered permanent nerve damage

to his right wrist); with Gilles v. Davis, 427 F.3d 197, 207–08 (3d Cir. 2005)

(finding the facts at issue insufficient to establish excessive force due to

handcuffing and distinguishing Kopec, concluding that in Gilles, “obvious visible

indicators of Gilles’ pain were absent”; other than his alleged complaint that the

handcuffs were too tight, Gilles demonstrated no expression or signs of

discomfort at the time he was handcuffed, nor did Gilles seek or receive medical

treatment after the fact (emphasis added)); see also Cardenas v. Fisher, 307 F.

App’x 122, 126 (10th Cir. 2009) (“In finding that Cardenas alleged more than a

de minimis injury, the court noted the significant pain he experienced while

handcuffed, his need to seek medical attention for his wrists, and his inability to

work for two months as a result of his injuries. . . . [A]ny dispute about the

seriousness of these alleged injuries, including medical and work records, will be

fair game for trial. At that point ‘Cardenas will be required to come forward with

evidence sufficient to prove actual injury that is not de minimis.’”).

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The next question is whether the right at issue was clearly established at the

time of the alleged unlawful incident. This inquiry “must be undertaken in light

of the specific context of the case, not as a broad general proposition.” Saucier,

533 U.S. at 201. So, for a right to be clearly established, “there must be a

Supreme Court or Tenth Circuit decision on point, or the clearly established

weight of authority from other courts must have found the law to be as the

plaintiff maintains.” Medina v. City and County of Denver, 960 F.2d 1493, 1498

(10th Cir. 1992). And while Graham v. Connor “clearly establishes the general

proposition that use of force is contrary to the Fourth Amendment if it is

excessive under objective standards of reasonableness[,] . . . that is not enough.”

Saucier, 533 U.S. at 201–02.

The right violated must be clearly established “in a more particularized,

and hence more relevant sense: The contours of the right must be sufficiently

clear that a reasonable official would understand that what he is doing violates

that right.” Id. at 202 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

As the Supreme Court has directed, qualified immunity should protect “all but the

plainly incompetent or those who knowingly violate the law.” Malley v. Briggs,

475 U.S. 335, 341 (1986).

Fisher’s claim meets this requirement. It is long established law of this and

other circuits that a triable claim of excessive force exists where a jury could

reasonably conclude that the officer handled a cooperating arrestee in a manner

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that the officer knew posed a serious risk of exacerbating the arrestee’s injuries,

which were themselves known to the officer. For example, in Martin v. Board of

County Commissioners of County of Pueblo, the plaintiff was forced from her

hospital bed into a police van without any special accommodations—all simply so

she could be processed at the police station for a speeding violation, and despite

the officers’ knowledge that she had a fractured neck. 909 F.2d 402, 403–04

(10th Cir. 1990). Under these facts, we held that the officers were not entitled to

qualified immunity on plaintiff’s excessive force claim because they acted in a

manner that created a “serious known risk of physical trauma resulting in

aggravation of an existing fracture to her neck in violation of clearly established

law.” Id. at 407; cf. Howard v. Dickerson, 34 F.3d 978, 979–81 (10th Cir. 1994)

(holding that the district court properly denied officer’s motion to dismiss

plaintiff’s claim of deliberate indifference to medical needs under the Fourteenth

Amendment’s more rigorous standards where plaintiff alleged that despite telling

officers that “she recently underwent neck surgery [and therefore that]

handcuffing her behind her back would cause injury,” the officer nevertheless

proceeded to handcuff her behind her back).

Cases from other jurisdictions confirm and underscore the established

nature of the right at issue. In Walton v. City of Southfield, the Sixth Circuit

sixteen years ago faced a claim against officers who stopped the plaintiff’s car

when they saw that the plaintiff’s daughter was not secured in her child seat.

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995 F.2d 1331, 1333–34 (6th Cir. 1993), superseded by statute on other grounds

as stated in Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 407–08 (6th Cir.

2007). The officers proceeded to frisk and then handcuff the plaintiff behind her

back, despite the plaintiff begging them not to be handcuffed in that manner

because she had just come from the doctor’s office for treatment of an injured

shoulder. Id. at 1334. The plaintiff brought suit for excessive force to recover

for injuries to her shoulder, and the Sixth Circuit found genuine issues of material

fact concerning whether the officer used excessive force in effecting the

handcuffing. Id. at 1342. In so concluding, the court held that “[a]n excessive

use of force claim could be premised on [the officer’s] handcuffing [of the

plaintiff here] if he knew that she had an injured arm and if he believed that she

posed no threat to him.” Id. at 1342; see also Guite v. Wright, 147 F.3d 747, 750

(8th Cir. 1998) (denying summary judgment to officers where plaintiff had a

visible sling on his left arm and yet officers proceeded to grab his wrist, push him

backward, and hold him up against a door). We see no possible basis for reaching

a different result in this case.

III. Conclusion

For the foregoing reasons, we reverse the grant of summary judgment and

remand for further proceedings consistent with this opinion.

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07-2294, Fisher v. City of Las Cruces

GORSUCH, Circuit Judge, concurring in the judgment.

Fourth Amendment excessive force claims require us to ask “whether the

officers’ actions are objectively reasonable” in light of three factors. Graham v.

Connor, 490 U.S. 386, 396-97 (1989). In Section II.A.2 of its opinion, the

majority explains how each of these factors suggests that the officers may not

have acted reasonably in their arrest of Mr. Fisher. In Section II.B, the majority

demonstrates that the law the officers allegedly violated was clearly established at

the time of their actions. The result, of course, is that Mr. Fisher has stated a

triable claim for a jury to resolve. With all of this, I concur.

In Section II.A.3, however, the majority takes a detour, asking whether, in

addition to satisfying all three Graham factors, Mr. Fisher has also shown that he

suffered a “non–de minimis injury.” Previously, we have required proof of some

such injury only in cases involving allegations of overly tight handcuffing, and

we have done so only to fill a small analytical void that Graham left open. See

Cortez v. McCauley, 478 F.3d 1108, 1129 (10th Cir. 2007) (en banc). 1 Indeed, it

1

As we recognized in Cortez, Graham offers little guidance in tight

handcuffing cases because police officers almost always may use handcuffs in the

course of a lawful arrest, regardless of the severity of the crime, the

dangerousness of the suspect, or any attempts at flight — Graham’s three factors.

See Cortez, 478 F.3d at 1128. At the same time, we have acknowledged, it is

possible to apply handcuffs so tightly, even in an otherwise lawful arrest, that it

rises to the level of objectively unreasonable, or excessive, force. Because, we

have held, tight handcuffing claims aren’t foreclosed just because Graham’s

factors do not speak to them, and mindful of Graham’s admonition that its factors

were never meant to be exhaustive, we, like other circuits, have fashioned a test

(continued...)

was common ground shared by every member of the en banc court in Cortez that,

outside the context of a claim alleging overly tight handcuffing, proof of injury is

not essential to an excessive force claim. See id. at 1129 n.24 (holding with

respect to Tina Cortez, who was not handcuffed, that “proof of physical injury . . .

is not an essential element”); id. at 1147 (Gorsuch, J., concurring in part and

dissenting in part) (noting with respect to Tina Cortez that “the circumstances of

an encounter . . . may themselves be so outrageous as to demonstrate

excessiveness” without any evidence of a consequent injury). In discussing the

injury requirement in Cortez, we carefully explained that the relevant issue with

respect to Rick Cortez’s tight handcuffing claim was “whether the failure to

adjust Rick Cortez’s handcuffs during an arrest constitutes excessive force,” and

held narrowly that “unduly tight handcuffing can constitute excessive force where

a plaintiff alleges some actual injury from the handcuffing and alleges that an

officer ignored a plaintiff’s timely complaints (or was otherwise made aware) that

the handcuffs were too tight.” Id. at 1129 (emphases added). 2

1

(...continued)

to identify when the otherwise lawful application of handcuffs constitutes force

that a reasonable jury could find objectively unreasonable.

2

To be sure, with respect to Tina Cortez, we suggested that a non–de

minimis injury may be probative evidence of excessive force. See Cortez, 478

F.3d at 1132. But no one in Cortez suggested that a non–de minimis injury is

required for excessive force claims other than those alleging overly tight

handcuffing. See id. at 1131 (“Physical contact is not required for an excessive

force claim — patently unreasonable conduct is.”); id. at 1147 (Gorsuch, J.,

(continued...)

-2-

Mr. Fisher, however, doesn’t complain that he was handcuffed too tightly

— in fact, he doesn’t complain about being handcuffed at all. Instead, he argues

that, before he was handcuffed, officers unreasonably manhandled him, despite

knowing that he posed no threat, was not resisting or evading arrest, and was

gravely injured. The court today nonetheless extends the non–de minimis injury

requirement to this case, explaining that the requirement now applies not just to

cases alleging overly tight handcuffing, but also to cases where force is applied

“in the course of applying handcuffs.” Maj. Op. at 16.

This holding seems to me at once both more and less than we need to say.

It is more than we need to say because, whether or not an injury requirement

pertains in these circumstances, the majority tells us that Mr. Fisher has met it

and that his claim thus survives summary judgment. Under the majority’s own

analysis, then, resolving whether and to what extent the injury requirement

extends beyond claims alleging overly tight handcuffing isn’t necessary to the

resolution of this appeal. We could have simply assumed without deciding the

injury requirement’s application to this case. Judicial restraint usually means

answering the questions we must, not those we can.

2

(...continued)

concurring in part and dissenting in part) (“[W]here the facts surrounding a

seizure are not themselves patently excessive . . . , more than a de minimis injury

is required to suggest that the force used was excessive.”). When it came to Tina

Cortez, the Cortez majority and dissent only disagreed about whether, in the

aggregate, she had adduced sufficient probative evidence of excessive force to

overcome the officers’ qualified immunity.

-3-

At the same time, the majority’s holding seems to me less than we need to

say because the idea of extending the injury requirement raises a number of

important questions that the parties in this case have not addressed and that, left

unaided by them, we would do well to avoid. By way of example, in Buck v. City

of Albuquerque, 549 F.3d 1269, 1278, 1290 (10th Cir. 2008), Denis Doyon did

not resist arrest, but was pushed face down onto the pavement, kneed in the small

of his back, pinned to the ground, handcuffed, and then exposed to tear gas while

handcuffed. See Maj. Op. at 18 n.6. Most, if arguably not all, of Mr. Doyon’s

excessive force claim concerned the force officers applied “in the course of

handcuffing,” yet we permitted it to proceed without any showing of injury. How

are we to reconcile our decision today with Buck: are we to suppose that the

appropriate Fourth Amendment test really turns on what percentage of a

plaintiff’s excessive force claim involves what transpired during the course of the

handcuffing process? District courts and future panels of this court are left to

figure all this out.

Even more fundamental questions still lurk here. How are we to square our

opinion today with Cortez’s admonition that “proof of physical [or emotional]

injury . . . is not an essential element of an excessive force claim”? 478 F.3d at

1129 n.24. And how do we reconcile it with the Fourth Amendment’s plain

language, which condemns all unreasonable seizures? Or the Supreme Court’s

admonition in Graham that whether a seizure is unreasonable turns on an

-4-

objective assessment of the officers’ conduct, not on subjective factors like a

particular plaintiff’s susceptibility to injury? Are we certain that the Fourth

Amendment really prefers, as an injury requirement might, eggshell plaintiffs

over more resilient individuals? Or that the fortuity of whether an officer chooses

to deploy handcuffs should determine the quantum of evidence a plaintiff must

marshal to prove a constitutional violation? Most pointedly of all, how can we

explain that free citizens must prove injuries to prevail on excessive force claims

under the Fourth Amendment in light of the Supreme Court’s and our own refusal

to require convicted felons to prove injuries to prevail on similar claims under the

Eighth Amendment? See Hudson v. McMillian, 503 U.S. 1, 7 (1992); United

States v. LaVallee, 439 F.3d 670, 688 (10th Cir. 2006). Does the Constitution

really prefer imprisoned criminals over everybody else? To say these questions,

unbriefed and unargued by the parties before us, are perplexing is to put it mildly.

I, for one, would steer clear of this thicket until the case before us requires us to

enter it and the parties’ arguments can help us steer our way through. For these

reasons and with these caveats, I concur in the judgment.

-5-