Kopec v. Tate

Opinions of the United

2004 Decisions States Court of Appeals

for the Third Circuit

3-17-2004

Kopec v. Tate

Precedential or Non-Precedential: Precedential

Docket No. 02-4188

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PRECEDENTIAL Walter F. Kawalec, III (argued)

Marshall, Dennehey, Warner, Coleman

UNITED STATES COURT OF & Goggin

APPEALS 200 Lake Drive East, Suite 300

FOR THE THIRD CIRCUIT Cherry Hill, NJ 08002

Attorneys for Appellee Officer

No. 02-4188 Tyrone Tate

MICHAEL KOPEC, OPINION OF THE COURT

Appellant

v.

GREENBERG, Circuit Judge.

TYRONE TATE, OFFICER;

This matter comes on before this

TOWNSHIP OF WHITEMARSH

court on an appeal by plaintiff Michael

Kopec (“Kopec”) from the district

court’s order entered on October 22,

Appeal from the United States District

2002, granting summary judgment in

Court

favor of defendant Officer Tyrone Tate

for the Eastern District of Pennsylvania

(“Officer Tate”) in this action principally

(D.C. Civ. No. 02-00430)

brought under 42 U.S.C. § 1983

District Judge: Honorable J. Curtis

(“section 1983"). For the reasons stated

Joyner

herein, we hold, contrary to the district

court, that Officer Tate is not entitled to

qualified immunity on Kopec’s excessive

Argued November 6, 2003

force claim and therefore we will reverse

the district court’s order granting

BEFORE: MCKEE, SMITH, and

summary judgment in his favor on that

GREENBERG, Circuit Judges

basis.

(Filed: March 17 2004 )

I. BACKGROUND

John J. Auritt (argued)

130 East State Street

In the evening of February 2,

Media, PA 19063

2000, Kopec and his girlfriend, Pamela

Smith (whom Kopec later married),

Attorney for Appellant

trespassed onto the frozen lake at the

Sherry Lake Apartment Complex in

Joseph Santarone

Conshohocken (Whitemarsh Township), behind his back.

Montgomery County, Pennsylvania.1

The lake, which was fenced off, was Within about ten seconds of

located on the property where Pamela being handcuffed, Kopec began to lose

Smith (now Pamela Kopec) rented an feeling in his right hand and, as a

apartment. To gain access to the lake consequence, asked Officer Tate to

Kopec hopped over the fence and his loosen the handcuffs, but Officer Tate

girlfriend squeezed through an opening did not do so. Kopec then asked if “this

in it. The two then proceeded to frolic is what he does when people don’t give

on the ice.2 Officer Tate, who then him information.” Officer Tate did not

arrived in response to an anonymous call, answer. A. 30.

directed them to get off the lake, and the

two complied. Officer Tate took Kopec to his

police car several feet away and left him

Although Officer Tate did not alongside it as he went to interview

intend to charge them with trespassing, Pamela Kopec, who was close by. As

he did seek to record their names, Officer Tate walked away, Kopec told

addresses, and phone numbers for his him the pain was unbearable and begged

report and he advised Kopec that he him to loosen the handcuffs. Again,

needed this information for that purpose. Officer Tate did not comply with

Kopec nevertheless refused to provide Kopec’s request. Kopec began to faint

this information, though Officer Tate from the pain caused by the handcuffs

repeatedly asked for it, and Kopec and then fell to the ground. He asked

instructed his girlfriend not to do so Officer Tate to remove the handcuffs

either. Officer Tate became annoyed because he had lost feeling in his right

with Kopec and then arrested him for hand. Officer Tate said “I will be there

disorderly conduct, and handcuffed him in a minute,” and did not go to Kopec

immediately. A. 31. Kopec asked him

again either to loosen or remove the

1

On this appeal from an order granting handcuffs while Kopec was groaning due

summary judgment against him we are to excruciating pain. Officer Tate heard

stating the facts from Kopec’s Kopec, but took no steps to assist him.

perspective. At trial the events may According to Kopec, it took Officer Tate

appear in a different light. about ten minutes from the time he had

handcuffed Kopec finally to loosen the

2

Kopec in his brief indicates that he

and his girlfriend “were frolicking on the

ice” and thus the characterization of their

conduct is his. Brief of Appellant at 4.

2

handcuffs. 3 Kopec claims to have court’s order but only with respect to his

permanent nerve damage in his right Fourth Amendment claim.5

wrist as a result of the handcuffing, for

which a hand surgeon treated him for

4

over one year. (...continued)

judgment on an uncontested motion but

Kopec concedes that he was Kopec has not appealed from this

trespassing in violation of 18 Pa. Cons. disposition and thus the township is out

Stat. Ann. § 3503(b)(1)(iii) (West Supp. of the case.

2003) and that Officer Tate lawfully was

5

able to arrest and handcuff him. Kopec has waived any challenge to

Nevertheless Kopec subsequently the district court’s ruling with regard to

brought this action against Officer Tate, his state law claims as in his brief he

alleging that the officer’s acts violated merely makes passing reference to these

section 1983 and were tortious under claims, stating that “[p]laintiff has also

Pennsylvania law. made a state tort claim pertaining to

these circumstances” and “Officer Tate’s

On Officer Tate’s motion the conduct is actionable as a state tort under

district court granted summary judgment 42 Pa. C.S.A. § 8542.” See Brief of

in his favor on the basis that he had Appellant at 9, 11. Kopec’s failure

qualified immunity on claims Kopec sufficiently to raise this issue waives it

asserted under section 1983 predicated on this appeal. See Laborers’ Int’l Union

on the First, Fourth and Fourteenth v. Foster Wheeler Corp., 26 F.3d 375,

Amendments and that claims Kopec 398 (3d Cir. 1994) (“An issue is waived

advanced under the Pennsylvania Tort unless a party raises it in its opening

Claims Act charging intentional, willful brief, and for those purposes a passing

misconduct and intentional infliction of reference to an issue . . . will not suffice

emotional distress were barred by the to bring that issue before this court.”)

immunity provisions of that act in 42 Pa. (citations and internal quotation marks

Cons. Stat. Ann. §§ 8541 and 8545 (West omitted).

1998). 4 Kopec appeals from the district

Moreover, although he included a

First Amendment argument in his brief,

3

Officer Tate recalls the period as Kopec informed us at oral argument that

being between four and eight minutes. he had abandoned that argument because

his action properly was characterized as a

4

Kopec also sued the Township of Fourth Amendment excessive force

Whitemarsh which obtained a summary claim. Thus, the only remaining issue on

(continued...) (continued...)

3

law." Fed. R. Civ. P. 56(c). In

reviewing the record, we are required to

II. JURISDICTION AND STANDARD view the inferences to be drawn from the

OF REVIEW underlying facts in the light most

favorable to Kopec, as the party

A. Jurisdiction opposing the motion, and to take his

allegations as true when supported by

The district court had proper proofs whenever these allegations

jurisdiction pursuant to 28 U.S.C. §§ conflict with those of Officer Tate. See

1331, 1343, and 1367 in that the Meritcare, Inc. v. St. Paul Mercury Ins.

complaint alleged federal civil rights Co., 166 F.3d 214, 223 (3d Cir. 1999).

claims under 42 U.S.C. § 1983 and

supplemental state law claims. Inasmuch

as Kopec’s appeal was timely we have

jurisdiction pursuant to 28 U.S.C. § III. DISCUSSION

1291.

A. Qualified Immunity on a

B. Standard of Review Section 1983 Claim

We exercise de novo review of 42 U.S.C. § 1983 provides:

the district court’s grant of summary

judgment. See Kneipp v. Tedder, 95 Every person who,

F.3d 1199, 1204 (3d Cir. 1996); Mark v. under color of any

Borough of Hatboro, 51 F.3d 1137, 1141 statute, ordinance,

(3d Cir. 1995). Summary judgment is regulation, custom, or

proper when the evidence shows "that usage, of any State or

there is no genuine issue as to any Territory or the District

material fact and that the moving party is of Columbia, subjects,

entitled to a judgment as a matter of or causes to be

subjected, any citizen of

the United States or

5

(...continued) other person within the

appeal is whether the district court jurisdiction thereof to

properly granted summary judgment on the deprivation of any

Kopec’s Fourth Amendment claim rights, privileges, or

against Officer Tate. immunities secured by

the Constitution and

laws, shall be liable to

4

the party injured in an in the light most favorable to the

action at law, suit in plaintiff, show that the officer’s conduct

equity, or other proper violated a constitutional right. See id. at

proceeding for redress. . 201, 121 S.Ct. at 2156; S.G. ex rel. A.G.

.. v. Sayreville Bd. of Educ., 333 F.3d 417,

420 (3d Cir. 2003) (When an individual

defendant in a section 1983 action claims

he is entitled to qualified immunity, “our

Thus, section 1983 provides a remedy for first task is to assess whether the

deprivations of rights established plaintiff’s allegations are sufficient to

elsewhere in the Constitution or federal establish the violation of a constitutional

laws. Estate of Smith v. Marasco, 318 or statutory right at all.”) (quoting

F.3d 497, 505 (3d Cir. 2003); Kneipp, 95 Gruenke v. Seip, 225 F.3d 290, 298 (3d

F.3d at 1204. Cir. 2000)). “If the plaintiff fails to

make out a constitutional violation, the

Qualified immunity is intended qualified immunity inquiry is at an end;

to shield government officials the officer is entitled to immunity.”

performing discretionary functions, Bennett v. Murphy, 274 F.3d 133, 136

including police officers, “from liability (3d Cir. 2002).

from civil damages insofar as their

conduct does not violate clearly If, however, “a violation could

established statutory or constitutional be made out on a favorable view of the

rights of which a reasonable person parties’ submissions, the next sequential

would have known.” Harlow v. step is to ask whether the right was

Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. clearly established.” Saucier, 533 U.S. at

2727, 2738 (1982). A defendant has the 201, 121 S.Ct. at 2156. “The relevant

burden to establish that he is entitled to dispositive inquiry” in making this

qualified immunity. See Beers-Capitol v. determination is “whether it would be

Whetzel, 256 F.3d 120, 142 n.15 (3d Cir. clear to a reasonable officer that his

2001). conduct was unlawful in the situation he

confronted.” Id. at 202, 121 S.Ct. at

The Supreme Court held in 2156. If it would not have been clear to

Saucier v. Katz, 533 U.S. 194, 121 S.Ct. a reasonable officer what the law

2151 (2001), that a ruling on qualified required under the facts alleged, then he

immunity must be undertaken using a is entitled to qualified immunity.

two-step inquiry. See id. at 200-01, 121

S.Ct. at 2155-56. First, the court must B. Excessive Force

consider whether the facts alleged, taken

5

Our first inquiry on Officer officers or others, and whether he

Tate’s claim of qualified immunity is actively is resisting arrest or attempting

whether the facts Kopec asserts, taken in to evade arrest by flight. See Graham,

the light most favorable to him, show 490 U.S. at 396, 109 S.Ct. at 1872. A

that Officer Tate violated Kopec’s Fourth court in making a reasonableness

Amendment rights. “To state a claim for assessment also may consider the

excessive force as an unreasonable possibility that the persons subject to the

seizure under the Fourth Amendment, a police action are violent or dangerous,

plaintiff must show that a ‘seizure’ the duration of the action, whether the

occurred and that it was unreasonable.” action takes place in the context of

Estate of Smith, 318 F.3d at 515 (quoting effecting an arrest, the possibility that the

Abraham v. Raso, 183 F.3d 279, 288 (3d suspect may be armed, and the number of

Cir. 1999)). Here, Officer Tate does not persons with whom the police officers

asssert that Kopec’s arrest did not must contend at one time. See Sharrar v.

constitute a “seizure.” Thus, the only Felsing, 128 F.3d 810, 822 (3d Cir.

issue on this inquiry is whether the force 1997). As the Supreme Court has stated,

Officer Tate used to effect that seizure

was reasonable. [t]he ‘reasonableness’

of a particular use of

The test of reasonableness under force must be judged

the Fourth Amendment is whether under from the perspective of

the totality of the circumstances, “the a reasonable officer on

officers’ actions are ‘objectively the scene, rather than

reasonable’ in light of the facts and with the 20/20 vision of

circumstances confronting them, without hindsight. . . . The

regard to their underlying intent or calculus of

motivations.” Graham v. Connor, 490 reasonableness must

U.S. 386, 397, 109 S.Ct. 1865, 1872 embody allowance for

(1989). Thus, if a use of force is the fact that police

objectively reasonable, an officer’s good officers are often forced

faith is irrelevant and any bad faith to make split-second

motivation on his part is immaterial. See judgments – in

Estate of Smith, 318 F.3d at 515; circumstances that are

Abraham, 183 F.3d at 289. Factors to tense, uncertain, and

consider in making a determination of rapidly evolving –

reasonableness include the severity of the about the amount of

crime at issue, whether the suspect poses force that is necessary

an immediate threat to the safety of the in a particular situation.

6

Graham, 490 U.S. at 396-97, 109 S.Ct. at the extent to ascertain if the handcuffs

1872. “[R]easonableness under the were too tight. Officer Tate was not,

Fourth Amendment should frequently after all, in the midst of a dangerous

remain a question for the jury,” situation involving a serious crime or

Abraham, 183 F.3d at 290; however, armed criminals. Accordingly, this

“‘defendants can still win on summary opinion should not be overread as we do

judgment if the district court concludes, not intend to open the floodgates to a

after resolving all factual disputes in torrent of handcuff claims. Thus, if

favor of the plaintiff, that the officer’s Officer Tate had been engaged in

use of force was objectively reasonable apprehending other persons or other

under the circumstances,’” id. (quoting imperative matters when Kopec asked

Scott v. Henrich, 39 F.3d 912, 915 (9th him to loosen the handcuffs our result

Cir. 1994)); see also Estate of Smith, 318 might have been different.

F.3d at 516.

With respect to the second

Kopec alleges that Officer Tate inquiry on qualified immunity, it cannot

placed handcuffs on him that were be said as a matter of law that a

excessively tight and failed to respond to reasonable officer would not have known

Kopec’s repeated requests for them to be that this conduct was in violation of the

loosened. He estimates that it took Fourth Amendment even though it

Officer Tate ten minutes to loosen the appears that neither the Supreme Court

handcuffs despite the severe pain they nor this court has ruled that a police

were causing and his efforts to secure officer may be using constitutionally

their release. As a result, Kopec claims excessive force in tightening handcuffs. 6

that he suffered permanent nerve damage

to his right wrist. These facts, if

6

credited, would establish that Officer Neither party cites a case from the

Tate’s use of force was excessive in Supreme Court or this court directly

violation of the Fourth Amendment. addressing the issue. Indeed, Kopec in

his brief indicates that he “has not found

In reaching our conclusion that a case from the Third Circuit that

Kopec has asserted facts that if proven discusses excessively tight handcuffs at

would establish that there had been a the inception of an arrest or when a

violation of his constitutional rights, we police officer purposefully left

point out that Officer Tate faced rather excessively tight handcuffs on a suspect

benign circumstances that hardly over time,” brief of Appellant at 12, and

justified his failure to respond more Officer Tate in his brief states that “at the

promptly to Kopec’s entreaties, at least to time of the plaintiff’s arrest, it is

(continued...)

7

The Court of Appeals for the Ninth liability-free violation of a constitutional

Circuit has noted that at least as early as or statutory requirement.” Therefore, we

1985 the use of excessive force by hold that the right of an arrestee to be

officers in effecting an arrest was clearly free from the use of excessive force in

proscribed by the Fourth Amendment as the course of his handcuffing clearly was

it held, quoting a 1985 Supreme Court established when Officer Tate acted in

opinion, that “the Fourth Amendment this case, and that a reasonable officer

governs not only whether a person or would have known that employing

thing is subject to a ‘seizure,’ but also excessive force in the course of

‘the manner in which a . . . seizure is handcuffing would violate the Fourth

conducted.’” Palmer v. Sanderson, 9 Amendment. Accordingly, the district

F.3d 1433, 1436 (9th Cir. 1993) (quoting court committed error in granting

Tennessee v. Garner, 471 U.S. 1, 7-8, summary judgment in favor of Officer

105 S.Ct. 1694, 1699 (1985)). Tate on the basis of his qualified

Moreover, as we observed in Burns v. immunity defense.

County of Cambria, 971 F.2d 1015, 1024

(3d Cir. 1992), “[t]his court has adopted In reaching our result we point

a broad view of what constitutes an out that other courts of appeals have

established right of which a reasonable made determinations consistent with

person would have known.” (citations ours. See, e.g., Martin v. Heideman, 106

and quotation marks omitted). Thus, in F.3d 1308, 1312 (6th Cir. 1997)

People of Three Mile Island v. Nuclear (reversing grant of directed verdict in

Regulatory Comm’rs, 747 F.2d 139, 144- favor of arresting officer in a section

45 (3d Cir. 1984), we held that there does 1983 action alleging excessive force due

not have to be “precise factual to overly-tight handcuffs); Alexander v.

correspondence” between the case at County of Los Angeles, 64 F.3d 1315,

issue and a previous case in order for a 1322-23 (9th Cir. 1995) (reversing grant

right to be “clearly established,” and we of summary judgment in favor of officers

would not be “faithful to the purposes of on qualified immunity and holding that

immunity by permitting . . . officials one fact issue existed as to whether officers

used excessive force in refusing to

loosen plaintiff’s handcuffs); Palmer, 9

6

(...continued) F.3d at 1436 (9th Cir. 1993) (affirming

apparent that there was no law in this denial of summary judgment on qualified

Circuit specifically relating to tight immunity where deputy allegedly

handcuffing, and more specifically, as it employed excessive force by handcuffing

relates to the issue of the constitutional plaintiff so tightly that he was in pain and

implication of loosening tight

handcuffing.” Brief of Appellee at 17.

8

was left bruised for several weeks).7 this opinion.

IV. CONCLUSION

For the foregoing reasons, we

will reverse the order of the district court

entered on October 22, 2002, and remand

the case for proceedings consistent with

7

This case is distinguishable from

Hannula v. City of Lakewood, 907 F.2d

129, 132 (10th Cir. 1990), in which the

Court of Appeals for the Tenth Circuit

analyzed an excessive handcuffing claim

under a substantive due process

standard, rather than the Fourth

Amendment reasonableness standard, to

conclude that the failure to loosen tight

handcuffs did not rise to a clearly

established constitutional violation. The

court noted that the amount of force used

was not substantial, the extent of the

injury was minimal, and the evidence

failed to establish malice. Likewise,

Glenn v. City of Tyler, 242 F.3d 307,

314 (5th Cir. 2001), is distinguishable in

that the plaintiff there failed to show

more than a de minimis injury resulting

from her tight handcuffing. Where, as

here, a plaintiff alleges actual injury

inflicted by a police officer in the course

of an arrest, and supports his allegation

with specific facts so that it cannot be

said as a matter of law that the use of

force was objectively reasonable, the

issue of whether excessive force was

employed must be left to the trier of fact.

9

Kopec v. Tate , No. 0 2 - 4 1 8 8. only relies on the broad proposition that

the Fourth Amendment secures the right to

be free from the use of excessive force

SMITH, Circuit Judge, Dissenting:

during an arrest, and concludes that

I respectfully dissent from the Officer Tate violated this clearly

majority opinion because I believe that the established right. This analysis is flawed,

facts, even when viewed in the light most in my view, because it fails to determine

favorable to Kopec, fail to demonstrate what the contours of the right were, and

that Officer Tate deprived Kopec of the neglects to recognize that the law did not

protections of the Fourth Amendment right provide Officer Tate with fair warning that

to be free from the use of excessive force he was required to respond more promptly

during an arrest. Caselaw establishes that than he did to Kopec’s complaint that the

tight handcuffing alone is insufficient to handcuffs were too tight.

state a claim of excessive force. E.g.

I would, therefore, affirm the

Burchett v. Kiefer, 310 F.3d 937, 944-45

District Court’s grant of summary

(6th Cir. 2002). A plaintiff must

judgment in favor of Officer Tate.

demonstrate not only that the officer had

notice that the force applied by the I.

handcuffs was excessive under the

As the Supreme Court instructed

circumstances, but also that the officer

in Saucier, 533 U.S. at 201, the first

failed to respond to such notice in a

inquiry in deciding whether qualified

reasonable manner. Id. Here, once

immunity is available is whether there was

Officer Tate had received notice that the

a violation of a constitutional right. See

force applied by the cuffs may have been

also Siegert v. Gilley, 500 U.S. 226, 231-

excessive, he responded reasonably under

33 (1991). When an excessive force claim

the circumstances.

arises in the context of an arrest, it must be

Yet even if the facts were “analyzed under the Fourth Amendment

sufficient to state a claim of excessive and its ‘reasonableness’ standard.”

force, I would still be in dissent because I Graham v. Connor, 490 U.S. 386, 395

believe that Officer Tate should be entitled (1989); see also Tennessee v. Garner, 471

to qualified immunity. The Supreme U.S. 1, 8 (1985) (applying Fourth

Court has repeatedly instructed that the Amendment’s reasonableness standard to

determination of qualified immunity § 1983 excessive use of force claim and

requires particularizing the constitutional declaring that one of the factors to be

right “in light of the specific context of the considered is “how [a seizure] is carried

case.” Saucier v. Katz, 533 U.S. 194, 201 out”). The Supreme Court has recognized

(2001). This is where I believe the that the right to make an arrest “carries

majority’s analysis falls short, because it with it the right to use some degree of

10

physical coercion or threat thereof to effect In some circumstances, however,

it,” and that “‘[n]ot every push or shove’” tight handcuffing may give rise to a Fourth

violates the Fourth Amendment. Graham, Amendment violation. See Herzog v.

490 U.S. at 396 (quoting Johnson v. Glick, Village of Winnetka, 309 F.3d 1041, 1043

481 F.2d 1028, 1033 (2d Cir. 1973)). The (7th Cir. 2002) (concluding that summary

Graham Court instructed that careful judgment was improperly granted in favor

attention must be given to “the facts and of the officers where plaintiff was arrested

circumstances of each particular case” and without probable cause and handcuffed for

that the reasonableness of “a particular use an hour despite complaints that the cuffs

of force must be judged from the were too tight). In determining whether

perspective of a reasonable officer on the Kopec was deprived of his Fourth

scene, rather than with the 20/20 vision of Amendment right to be free from the use

hindsight.” 490 U.S. at 396. of excessive force, it is instructive to

review the caselaw in which the facts have

Similarly, not every instance of

been sufficient to state a claim. These

tight handcuffing offends the Fourth

cases demonstrate that a viable excessive

Amendment’s right to be free from the use

force claim requires that the officer or

of excessive force during an arrest.

officers had either constructive or actual

Indeed, several of our sister circuits have

notice that the force applied by the

recognized as much 8

8

(...continued)

8

See also Braun v. Baldwin, 346 F.3d City of Tyler, 242 F.3d 307, 314 (5th Cir.

761, 763 (7th Cir. 2003) (affirming, inter 2001) (declaring that “handcuffing too

alia, grant of summary judgment for tightly, without more, does not amount to

defendants on excessive use of force excessive force”); Carter v. Morris, 164

claim based on tight handcuffing because F.3d 215, 219 n.3 (4th Cir. 1999)

there was no indication “arrest was (finding that plaintiff’s allegation that

effected in an unusual or improper she was handcuffed too tightly was “so

manner”); Burchett v. Kiefer, 310 F.3d insubstantial that it cannot as a matter of

937, 944-45 (6th Cir. 2002) (summary law support her claim” of excessive

judgment for officers on excessive force force); Foster v. Metro. Airports

claim affirmed because officers removed Comm’n, 914 F.2d 1076, 1082 (8th Cir.

the handcuffs once plaintiff complained 1990) (court affirmed grant of summary

they were too tight); Rodriguez v. judgment for officers based on tight

Farrell, 280 F.3d 1341, 1351 (11th Cir. handcuffing, explaining that plaintiff’s

2002) (“painful handcuffing, without allegations of pain alone were

more,” is not excessive force); Glenn v. insufficient to support his claim of

(continued...) excessive force).

11

handcuffs was excessive under the For example, in Palmer v.

circumstances, yet the officer or officers Sanderson, 9 F.3d 1433 (9th Cir. 1993),

failed to respond to such notice in a one of the earliest tight handcuffing cases,

reasonable manner.9 the plaintiff’s complaints that the

handcuffs were too tight and painful

provided the officer with constructive

9

See Kukla v. Hulm, 310 F.3d 1046 notice that the force used might have been

(8th Cir. 2002); Bastien v. Goddard, 279 excessive under the circumstances.

F.3d 10, 12-13 (1st Cir. 2002) (reversing Despite this notice, the officer refused to

judgment for officer based on tight loosen the handcuffs. Id. at 1436. The

handcuffing for more than four hours Court concluded that “[u]nder these

despite plaintiff’s repeated complaints); circumstances no reasonable officer could

Kostrzewa v. City of Troy, 247 F.3d 633, believe that the abusive application of

639-40 (6th Cir. 2001) (officer cuffs was constitutional.” Id.

documented that he had been able to

tighten the cuffs to only the first tooth Although the Ninth Circuit’s

because the plaintiff had large wrists, yet decision in Palmer did not actually use the

he ignored plaintiff’s persistent term “notice” in determining that the facts

complaints that the cuffs were too small were sufficient to state a Fourth

and tight until after the plaintiff was Amendment violation, substantively its

booked); Heitschmidt v. City of Houston, analysis focused on that very issue.

161 F.3d 834, 839-40 (5th Cir. 1998) Thereafter, a number of circuit courts

(reversing summary judgment for employed this same analysis, again without

officers who ignored repeated complaints discussing the principle of notice, and

over a four-hour period and pointing out concluded that there were sufficient facts

that the officers had no justification for to state an excessive force claim where the

refusing to adjust the painful cuffs); plaintiff’s complaints about painful and

Martin v. Heideman, 106 F.3d 1308, overly tight handcuffing were ignored by

1310, 1313 (6th Cir. 1997) (plaintiff’s the arresting officers. See Herzog, 309

complaints that his hands were becoming F.3d at 1043; supra n.2.

numb and swollen and the officer’s The importance of the notice

failure to adjust the handcuffs were effected by a plaintiff’s complaints that

sufficient to state a Fourth Amendment

claim); Alexander v. County of Los

9

Angeles, 64 F.3d 1315, 1323 (9th Cir. (...continued)

1995) (officer failed to adjust handcuffs condition necessitated adjusting the

even though plaintiff complained of pain, handcuffs, and the officer noted that the

alerted the officer that his medical plaintiff’s wrists were “mushy” when he

(continued...) applied the cuffs).

12

handcuffs are too tight and painful was by removing the cuffs, the Court

demonstrated in Burchett, 310 F.3d at 937. concluded that there was no violation of

There, the plaintiff, who had been the plaintiff’s Fourth Amendment right.

handcuffed for three hours in a police

II.

cruiser, showed his family that his hands

were swollen and blue. Id. at 941. The In determining whether the record

family, in turn, pointed this out to the in this case presents facts sufficient to

officers, who agreed to release the plaintiff demonstrate a claim of excessive force, I

if he promised to behave. After the consider those facts, as the majority also

plaintiff agreed, the cuffs were released. has, in the light most favorable to Kopec.

Id. Thereafter, plaintiff claimed that the See Saucier, 533 U.S. at 201 (instructing

officers had violated his civil rights by courts to consider threshold question of

using excessive force. The Sixth Circuit whether there is a constitutional violation

disagreed. in the light most favorable to the injured

party). Accordingly, I rely upon Kopec’s

The Burchett Court recognized

account of events. I set forth the facts

that “applying handcuffs so tightly that the

separately here so that, consistent with

detainee’s hands become numb and turn

Graham, they may be analyzed from the

blue certainly raises concerns of excessive

perspective of a reasonable officer on the

force.” Id. at 944. Furthermore, the Court

scene. Graham, 490 U.S. at 396.

acknowledged that its own precedents

allowed a plaintiff to get to a jury by It is undisputed that Officer Tate

showing that “officers handcuffed the apprehended Kopec and Smith while they

plaintiff excessively and unnecessarily were trespassing on private property

tightly and ignored the plaintiff’s pleas around 11 p.m. on a cold, snowy night.

that the handcuffs were too tight.” Id. at Thus, he had probable cause to arrest

944-45 (citing Kostrzewa, 247 F.3d at 641, them. Officer Tate advised Kopec and

and Heideman, 106 F.3d at 1310, 1313). Smith, however, that “he was going to let

Unlike other cases presenting a [them] go and it was no big deal and that

constitutional violation, the Court he needed [their] names and addresses” to

explained, the record gave “no indication fill out a report. Kopec inexplicably

that [plaintiff] had previously complained refused to cooperate with this simple

or advised the officers that the handcuffs request. Officer Tate then explained why

were too tight. . . . Until [the officers] had he needed the information. Kopec still

notice that the handcuffs were too tight, refused to provide any information to

the officers were unaware of the problem.” Officer Tate, prompting the officer to

Burchett, 310 F.3d at 945 (emphasis advise the pair that they were “not in

added). Because the officers had trouble and that it was just procedure.”

responded to the plaintiff’s lone complaint Kopec was unmoved. Officer Tate then

13

arrested and handcuffed Kopec. could take the

handcuff[s] off and

According to Kopec, the officer

again asked if this is

placed the cuffs on me. what he did to get

We were about 30 feet information out from

from his cruiser. Put the people.

cuffs on behind my back

The officer proceeded to interview Smith.

and we started to walk

Kopec fell to his knees and groaned: “Get

towards his cruiser.

the cuffs off, I can’t feel my hand.” Kopec

And in a then stated that the pain was “unbearable.”

very short time, within Officer Tate acknowledged the complaint

about ten seconds, I and informed Kopec that he would “be

began to lose feeling in there in a minute.” Kopec groaned again:

my right hand. And I “Get these cuffs off, I can’t feel anything

asked if he could loosen right now.” Officer Tate stopped

the handcuff, that it was interviewing Smith, returned to the cruiser,

too tight. And we and assisted Kopec up off the ground. In

continued wa lking order to assess the restrictiveness of the

towards the cruiser and I cuffs, Officer Tate escorted Kopec to the

asked him if this is what rear of the cruiser and laid him on the

he does when people trunk to view the restraints. Officer Tate

don’t give him asked him if it was permissible to remove

information. Kopec’s gloves. After Kopec assented,

Tate loosened the cuffs.

***

Kopec’s initial statement to

He ignored me. We got

Officer Tate did not communicate

to the cruiser, to the

anything more than a complaint about

back door, and he spun

tightness. From the perspective of a

me, turned me around so

reasonable officer, it would not have been

that my back was facing

unusual for an arrestee to initially request

the back door. And he

that the cuffs be adjusted or loosened.

proceeded to walk back

Handcuffs, by their very nature, are

to Pam the 30 feet.

restrictive, uncomfortable, and unfamiliar

And I asked to most individuals. Although Kopec

him again. The pain affirmed during his deposition that he

became unbearable to experienced a loss of feeling within about

me and I asked him if ten seconds of being cuffed, careful

14

reading of his testimony reveals that he did When Kopec groaned again and demanded

not express this to Officer Tate. that Officer Tate remove the cuffs because

he was unable to feel his hand, Officer

Kopec’s second request to have

Tate interrupted his interview of Smith and

the cuffs removed was also devoid of any

returned to Kopec’s side to evaluate the

suggestion that the cuffs were too

cuffs.

restrictive or were causing him pain.

Although Kopec testified to the effect that Viewed from the perspective of a

he experienced unbearable pain, he did not reasonable officer, Tate’s conduct was not,

advise Officer Tate of that fact. Rather, in my view, unreasonable. He was

Kopec testified that he “asked him if he constitutionally permitted to apply some

could take the handcuff[s] off and again force in arresting Kopec. After receiving

asked if this is what he did to get notice that the force applied by the cuffs

information out from people.” From a may have been excessive, Officer Tate

reasonable officer’s viewpoint, this second responded reasonably.

request to remove the cuffs, together with

I acknowledge that there was a

the repeated inquiry about Officer Tate’s

brief delay in responding to Kopec’s

tactics for obtaining information, could

complaints. That delay, however, was not

reasonably be viewed as theatrics by

unreasonable in the absence of any

Kopec protesting his arrest and the

indication of pain or suffering in Kopec’s

application of handcuffs.

initial statements that would have

When Kopec fell to the ground, conveyed to Tate that the force was

groaned, and stated that he could not feel excessive under the circumstances. Once

his hand, Officer Tate was, for the first Kopec fell to the ground and demanded the

time, put on notice that the force applied removal of the cuffs claiming a lack of

by the cuffs may have been excessive. In feeling in his hand, Officer Tate advised

light of Kopec’s earlier conduct, a that he would “be there in a minute” and

reasonable officer would have had reason responded within a reasonable period of

to question the genuineness of this time.

complaint. Because this complaint may

In my view, the totality of the

have been theatrics and because Officer

circumstances considered by the majority

Tate was legitimately engaged in

has not adequately taken into account the

i n t e rv i e wing S mith, it w as not

fact that there was only one officer at the

unreasonable for Officer Tate to proceed

scene, and that he was occupied with

with the task in which he was already

another task that was a legitimate police

engaged. Indeed, interviewing Smith was

duty. In explaining its assessment of the

necessary because of Kopec’s refusal to

attendant circumstances, the majority

provide any information whatsoever.

points out that Officer Tate “faced rather

15

benign circumstances that hardly justified right and determining the contours of that

his failure to respond more promptly to right. See Saucier, 533 U.S. at 201-02

Kopec’s entreaties . . . . Officer Tate was (discussing Anderson v. Creighton, 483

not, after all, in the midst of a dangerous U.S. 635, 640 (1987)). In Saucier, the

situation involving a serious crime or Supreme Court held that a “ruling on

armed criminals.” Slip op. at 7. I agree qualified immunity requires an analysis not

that Officer Tate was not immediately susceptible of fusion with the question

confronted with a dangerous situation. Yet whether unreasonable force was used in

from the perspective of a reasonable making the arrest.” 533 U.S. at 197.

officer, on the scene alone and dealing Thus, the determination of whether there is

wit h two trespassers w ho we r e a constitutional violation is not co-

inexplicably unresponsive to his inquiries, extensive with the issue of whether a

there was justification for the officer’s government official is entitled to qualified

refusal to immediately indulge Kopec’s immunity. For that reason, the Supreme

initial requests so that the interview with Court laid out the now familiar framework

Smith might continue. for analyzing qualified immunity claims,

instructing that the first inquiry is whether

In sum, I conclude that Kopec has

there is a constitutional violation. Id. at

failed to establish that there was a

200. If such a violation is demonstrated,

violation of his Fourth Amendment right

the next “step is to ask whether the right

to be free from the use of excessive force.

was clearly established.” Id. at 201. The

Ordinarily, in the absence of a

Supreme Court reiterated that this second

constitutional violation, “there is no

“inquiry, it is vital to note, must be

necessity for further inquiries concerning

undertaken in the light of the specific

qualified immunity.” Saucier, 533 U.S. at

context of the case, not as a broad general

201. I address the issue of qualified

proposition.” Id. (emphasis added).

immunity only because I believe that, even

if there was sufficient evidence to Consistent with this iteration, the

demonstrate a constitutional violation, Saucier Court observed that Graham’s

Officer Tate should be accorded qualified general proposition that the use of

immunity. excessive force is contrary to the Fourth

Amendment was not particularized enough

for the purpose of determining whether the

III. law was clearly established. 533 U.S. at

201-02. Quoting Anderson v. Creighton,

The Suprem e Cou rt has

the Court emphasized that the “‘contours

repeatedly instruc ted th at the

of the right must be sufficiently clear,’”

determination of qualified immunity

and it instructed that

requires particularizing the constitutional

16

[t]he relevant, inquiry. In the seminal case of Anderson,

dispositive inquiry in the Supreme Court observed that the

determining whether a determination of whether there is qualified

right is clearly immunity “depends substantially upon the

established is whether it level of generality at which the relevant

would be clear to a ‘legal rule’ is to be identified.” 483 U.S.

reasonable officer that at 639 (examining qualified immunity in

his c on d u ct w as the context of a warrantless search). The

unlawful in the situation Court recognized that if the test were

he confronted. . . . If the applied at a general level, as I believe the

law did not put the majority does here, then “[p]laintiffs

officer on notice that his would be able to convert the rule of

conduct would be clearly qualified immunity that our cases plainly

unlaw ful, summar y establish into a rule of virtually

judgment based on unqualified liability. . . .” Id. Whether a

qualified immunity is legal rule is “clearly established,” the

appropriate. Court instructed, must be considered in a

Saucier, 533 U.S. at 202 (quoting more particularized, and

Anderson, 483 U.S. at 640). hence, more relevant

sense: The contours of

In Bennett v. Murphy, 274 F.3d

the right must b e

133, 136 (3d Cir. 2002), we observed that

sufficiently clear that a

the two- part test enunciated in Saucier

reasonable offic ial

“clarif[ied] the analysis to be undertaken

would understand that

by district courts and courts of appeals

what he is doing violates

considering claims of qualified immunity

that right. This is not to

in cases alleging excessive use of force.”

say an official action is

Although my colleagues have employed

protected by qualified

the two-part test set forth in Saucier, I do

immunity unless the very

not believe that their reliance on only the

action in question has

Fourth Amendment’s broad, general

previously been held

proscription against the use of excessive

unlawful, but it is to say

force is sufficient because it fails to take

that in the light of pre-

into account the situation confronting

e x i s ti n g law th e

Officer Tate.

unlawfulness must be

S u p re m e Co urt qu alif ie d apparent.

immunity jurisprudence has long required

Id. (citations omitted) (emphasis added).

that courts undertake a particularized

17

Subsequently, in Wilson v. Layne, established law and the

526 U.S. 603 (1999), the Supreme Court information the officers

concluded that allowing the media to ride possessed.

along during the execution of a search

526 U.S. at 615 (emphasis added)

warrant violated the Fourth Amendment.

(citations omitted). The Court held that it

In determining whether qualified immunity

was not unreasonable for the officers to

was available to the officers, the Supreme

believe their conduct was lawful. In

Court reviewed its decisions in Harlow v.

explaining its holding, the Supreme Court

Fitzgerald, 457 U.S. 800 (1982), and

pointed to the absence of caselaw

Anderson, supra, observing that

regarding the constitutionality of allowing

[i]t could plausibly be the media to accompany police, as well as

a sserte d t h a t an y the existence of a government policy by

violation of the Fourth the United States Marshal Service

Amendment is “clearly regarding the practice, and declared that

established,” since it is the “state of the law . . . was at best

clearly established that undeveloped.” 536 U.S. at 618. The

the protections of the Court further noted that a circuit split had

Fou rth Amend m ent developed on the question and declared

apply to the actions of that “[i]f judges thus disagree on a

police. . . . However, as constitutional question, it is unfair to

w e e x p l a in e d in subject police to money damages for

Anderson, the right picking the losing side of the controversy.”

allegedly violated must Id.

b e defined at the

Most recently, in Hope v. Pelzer,

appropriate level of

536 U.S. 730 (2002), the Supreme Court

specificity before a court

r e v e r se d t h e E l even th Circ uit’ s

can determine if it was

determination that qualified immunity

clearly established. In

precluded liability for a prisoner’s claims

this case, the appropriate

that his Eighth Amendment rights had

question is the objective

been violated when he was handcuffed to

inquiry whe ther a

a hitching post for seven hours. Citing its

reasonable officer could

earlier precedents, the Supreme Court

h a ve believed that

declared that the “salient question . . . is

bringing members of the

whether the state of the law in 1995 gave

media into a home

respondents fair warning that their alleged

during the execution of

t r e a t m e n t of [ the inm a te ] w a s

an arrest warrant was

unconstitutional.” Id. at 741 (emphasis

lawful, in light of clearly

18

added). It concluded that the defendant and Foster, tight handcuffing alone was

officials had fair warning that the use of insufficient to establish an excessive force

the hitching post under the circumstances claim. The remaining cases, however,

alleged by Hope was unlawful, noting two concluded there were sufficient facts to

Eleventh Circuit decisions and a report by dem onstra te a Fourth Amendment

the Department of Justice regarding the violation. As I point out above, the

unconstitutionality of Alabama’s practice common thread in these latter cases is that:

of using the hitching post. Id. at 743-45. (1) the arrestee complained that the cuffs

In addition, the Court observed that the were too tight and painful, thereby

“obvious cruelty inherent in this practice providing notice to the officer(s) that the

should have provided respondents with force applied may have been excessive

some notice that their alleged conduct under the circumstances; and (2) the

violated Hope’s constitutional protection officer(s) failed to reasonably respond to

against cruel and unusual punishment.” the arrestee’s complaints. Thus, the

Id. at 745-46. caselaw in February 2000 established that

liability may attach if an officer

Accordingly, consistent with

unreasonably ignores or is indifferent to

Hope, Saucier, Wilson and Anderson, I

the complaints of an arrestee that the force

consider what the contours of the right

applied by the handcuffs may be excessive

were at the time of Kopec’s arrest and

under the circumstances.

whether they were sufficiently clear to put

Officer Tate on notice that his conduct Prior to the incident at issue in

would violate the Fourth Amendment right this case, the caselaw did not provide any

to be free from the use of excessive force. guidance with respect to how quickly an

Saucier, 533 U.S. at 202. officer must respond to a complaint that

handcuffs have been applied too tightly.

In February 2000, only a handful

Nor was there any guidance in the cases as

of cases of § 1983 claims involving tight

to how an officer should prioritize his

handcuffing were extant. See Carter v.

response when there are other tasks in

Morris, 164 F.3d 215, 219 n.3 (4th Cir.

which he is legitimately engaged or may

1999); Heitschmidt v. City of Houston, 161

be required to undertake at the time.

F.3d 834, 839-40 (5th Cir. 1998); Martin

v. Heideman, 106 F.3d 1310, 1313 (6th In light of this caselaw, I conclude

Cir. 1997); Alexander v. County of Los that Tate could have reasonably believed

Angeles, 64 F.3d 1315, 1323 (9th Cir. that his response to Kopec’s complaints

1995); Palmer v. Sanderson, 9 F.3d 1433, was lawful. To put it another way, I

1436 (9th Cir. 1993); Foster v. Metro. believe the law did not put Officer Tate on

Airports Comm’n, 914 F.2d 1076, 1082 notice that he had to respond immediately

(8th Cir. 1990). Significantly, in Carter to Kopec’s complaint that the handcuffs

19

were too tight. Nor was there any caselaw

providing Officer Tate with fair notice that

he must stop engaging in the legitimate

police task at hand, i.e., interviewing

Smith, in order to assess whether the

handcuffs were too tight. Because the

caselaw did not provide Tate with notice

that his response was unlawful, he should

be entitled to qualified immunity. See

Hope, 536 U.S. at 741; Saucier, 533 U.S.

at 202.

In summary, I conclude that the

facts fail to demonstrate a violation of the

Fourth Amendment right to be free from

the use of excessive force. Even if the

facts did state a claim of excessive force,

Officer Tate should be entitled to qualified

immunity. Accordingly, I would affirm

the District Court’s order granting

summary judgment for Officer Tate.

20