Michael Kopec v. Tyrone Tate, Officer Township of Whitemarsh

SMITH, Circuit Judge,

Dissenting.

I respectfully dissent from the majority opinion because I believe that the facts, even when viewed in the light most favorable to Kopec, fail to demonstrate that Officer Tate deprived Kopec of the protections of the Fourth Amendment right to be free from the use of excessive force during an arrest. Caselaw establishes that tight handcuffing alone is insufficient to state a claim of excessive force. E.g. Burchett v. Kiefer, 310 F.3d 937, 944-45 (6th Cir.2002). A plaintiff must demonstrate not only that the officer had notice that the force applied by the handcuffs was excessive under the circumstances, but also that the officer failed to respond to such notice in a reasonable manner. Id. Here, once Officer Tate had received notice that the force applied by the cuffs may have been excessive, he responded reasonably under the circumstances.

Yet even if the facts were sufficient to state a claim of excessive force, I would still be in dissent because I believe that Officer Tate should be entitled to qualified immunity. The Supreme Court has repeatedly instructed that the determination of qualified immunity requires particularizing the constitutional right “in light of the specific context of the case.” Saucier v. Katz, 533 U.S. 194 , 201, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001). This is where I believe the majority’s analysis falls short, because it only relies on the broad proposition that the Fourth Amendment secures the right to be free from the use of excessive force during an arrest, and concludes that Officer Tate violated this clearly established right. This analysis is flawed, in my view, because it fails to determine what the contours of the right were, and neglects to recognize that the law did not provide Officer Tate with fair warning that he was required to respond more promptly than he did to Kopec’s complaint that the handcuffs were too tight.

I would, therefore, affirm the District Court’s grant of summary judgment in favor of Officer Tate.

I.

As the Supreme Court instructed in Saucier, 533 U.S. at 201, 121 S.Ct. 2151 , the first inquiry in deciding whether qualified immunity is available is whether there was a violation of a constitutional right. See also Siegert v. Gilley, 500 U.S. 226, 231-33 , 111 S.Ct. 1789 , 114 L.Ed.2d 277 (1991). When an excessive force claim arises in the context of an arrest, it must be “analyzed under the Fourth Amendment and its ‘reasonableness’ standard.” Graham v. Connor, 490 U.S. 386, 395 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989); see also Tennessee v. Garner, 471 U.S. 1, 8 , 105 S.Ct. 1694 , 85 L.Ed.2d 1 (1985) (applying Fourth Amendment’s reasonableness standard to § 1983 excessive use of force claim and declaring that one of the factors to be considered is “how [a seizure] is carried out”). The Supreme Court has recognized that the right to make an arrest “carries with it the right to use some degree of physical coercion or threat thereof to effect it,” and that “ ‘[n]ot every push or shove’ ” violates the Fourth Amendment. Graham, 490 U.S. at 396 , 109 S.Ct. 1865 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973)). The Graham Court instructed that careful attention must be given to “the facts and circumstances of each particular case” and that the reasonableness of “a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” 490 U.S. at 396 , 109 S.Ct. 1865 .

*780 Similarly, not every instance of tight handcuffing offends the Fourth Amendment’s right to be free from the use of excessive force during an arrest. Indeed, several of our sister circuits have recognized as much 8

In some circumstances, however, tight handcuffing may give rise to a Fourth Amendment violation. See Herzog v. Village of Winnetka, 309 F.3d 1041, 1043 (7th Cir.2002) (concluding that summary judgment was improperly granted in favor of the officers where plaintiff was arrested without probable cause and handcuffed for an hour despite complaints that the cuffs were too tight). In determining whether Kopec was deprived of his Fourth Amendment right to be free from the use of excessive force, it is instructive to review the caselaw in which the facts have been sufficient to state a claim. These cases demonstrate that a viable excessive force claim requires that the officer or officers had either constructive or actual notice that the force applied by the handcuffs was excessive under the circumstances, yet the officer or officers failed to respond to such notice in a reasonable manner. 9

For example, in Palmer v. Sanderson, 9 F.3d 1433 (9th Cir.1993), one of the earliest tight handcuffing cases, the plaintiffs complaints that the handcuffs were too tight and painful provided the officer with constructive notice that the force used might have been excessive under the circumstances. Despite this notice, the officer refused to loosen the handcuffs. Id. at 1436 . The Court concluded that “[u]nder these circumstances no reasonable officer could believe that the abusive application of cuffs was constitutional.” Id.

*781 Although the Ninth Circuit’s decision in Palmer did not actually use the term “notice” in determining that the facts were sufficient to state a Fourth Amendment violation, substantively its analysis focused on that very issue. Thereafter, a number of circuit courts employed this same analysis, again without discussing the principle of notice, and concluded that there were sufficient facts to state an excessive force claim where the plaintiffs complaints about painful and overly tight handcuffing were ignored by the arresting officers. See Herzog, 309 F.3d at 1043 ; supra n. 2.

The importance of the notice effected by a plaintiffs complaints that handcuffs are too tight and painful was demonstrated in Burchett, 310 F.3d at 937 . There, the plaintiff, who had been handcuffed for three hours in a police cruiser, showed his family that his hands were swollen and blue. Id. at 941 . The family, in turn, pointed this out to the officers, who agreed to release the plaintiff if he promised to behave. After the plaintiff agreed, the cuffs were released. Id. Thereafter, plaintiff claimed that the officers had violated his civil rights by using excessive force. The Sixth Circuit disagreed.

The Burchett Court recognized that “applying handcuffs so tightly that the detainee’s hands become numb and turn blue certainly raises concerns of excessive force.” Id. at 944 . Furthermore, the Court acknowledged that its own precedents allowed a plaintiff to get to a jury by showing that “officers handcuffed the plaintiff excessively and unnecessarily tightly and ignored the plaintiffs pleas that the handcuffs were too tight.” Id. at 944-45 (citing Kostrzewa, 247 F.3d at 641, and Heideman, 106 F.3d at 1310, 1313). Unlike other cases presenting a constitutional violation, the Court explained, the record gave “no indication that [plaintiff] had previously complained or advised the officers that the handcuffs were too tight.... Until [the officers] had notice that the handcuffs were too tight, the officers were unaware of the problem.” Bur-chett, 310 F.3d at 945 (emphasis added). Because the officers had responded to the plaintiffs lone complaint by removing the cuffs, the Court concluded that there was no' violation of the plaintiffs Fourth Amendment right.

II.

In determining whether the record in this case presents facts sufficient to demonstrate a claim of excessive force, I consider those facts, as the majority also has, in the light most favorable to Kopec. See Saucier, 533 U.S. at 201, 121 S.Ct. 2151 (instructing courts to consider threshold question of whether there is a constitutional violation in the light most favorable to the injured party). Accordingly, I rely upon Kopec’s account of events. I set forth the facts separately here so that, consistent with Graham , they may be analyzed from the perspective of a reasonable officer on the scene. Graham, 490 U.S. at 396 , 109 S.Ct. 1865 .

It is undisputed that Officer Tate apprehended Kopec and Smith while they were trespassing on private property around 11 p.m. on a cold, snowy night. Thus, he had probable cause to arrest them. Officer Tate advised Kopec and Smith, however, that “he was going to let, [them] go and it was no big deal and that he needed [their] names and addresses” to fill out a report. Kopec inexplicably refused to cooperate with this simple request. Officer Tate then explained why he needed the information. Kopec still refused to provide any information to Officer Tate, prompting the officer to advise the pair that they were “not in trouble and that it was just procedure.” Kopec was unmoved. Officer Tate then arrested and handcuffed Kopec.

According to Kopec, the officer

*782 placed the cuffs on me. We were about 30 feet from Ms cruiser. Put the cuffs on behind my back and we started to walk towards his cruiser.

And in a very short time, within about ten seconds, I began to lose feeling in my right hand. And I asked if he could loosen the handcuff, that it was too tight. And we continued walking towards the cruiser and I asked him if this is what he does when people don’t give him information.

* * * * * *

He ignored me. We got to the cruiser, to the back door, and he spun me, turned me around so that my back was facing the back door. And he proceeded to walk back to Pam the 30 feet.

And I asked him again. The pain became unbearable to me and I asked him if could take the handcuff[s] off and again asked if this is what he did to get information out from people.

The officer proceeded to interview Smith. Kopec fell to his knees and groaned: “Get the cuffs off, I can’t feel my hand.” Kopec then stated that the pain was “unbearable.” Officer Tate acknowledged the complaint and informed Kopec that he would “be there in a minute.” Kopec groaned again: “Get these cuffs off, I can’t feel anything right now.” Officer Tate stopped interviewing Smith, returned to the cruiser, and assisted Kopec up off the ground. In order to assess the restrictiveness of the cuffs, Officer Tate escorted Kopec to the rear of the cruiser and laid him on the trunk to view the restraints. Officer Tate asked him if it was permissible to remove Kopec’s gloves. After Kopec assented, Tate loosened the cuffs.

Kopec’s initial statement to Officer Tate did not communicate anything more than a complaint about tightness. From the perspective of a reasonable officer, it would not have been unusual for an arrestee to initially request that the cuffs be adjusted or loosened. Handcuffs, by their very nature, are restrictive, uncomfortable, and unfamiliar to most individuals. Although Kopec affirmed during his deposition that he experienced a loss of feeling within about ten seconds of being cuffed, careful reading of his testimony reveals that he did not express this to Officer Tate.

Kopec’s second request to have the cuffs removed was also devoid of any suggestion that the cuffs were too restrictive or were causing him pain. Although Kopec testified to the effect that he experienced unbearable pain, he did not advise Officer Tate of that fact. Rather, Kopec testified that he “asked him if he could take the handcuff[s] off and again asked if this is what he did to get information out from people.” From a reasonable officer’s viewpoint, this second request to remove the cuffs, together with the repeated inquiry about Officer Tate’s tactics for obtaining information, could reasonably be viewed as theatrics by Kopec protesting his arrest and the application of handcuffs.

When Kopec fell to the ground, groaned, and stated that he could not feel his hand, Officer Tate was, for the first time, put on notice that the force applied by the cuffs may have been excessive. In light of Ko-pec’s earlier conduct, a reasonable officer would have had reason to question the genuineness of this complaint. Because this complaint may have been theatrics and because Officer Tate was legitimately engaged in interviewing Smith, it was not unreasonable for Officer Tate to proceed with the task in which he was already engaged. Indeed, interviewing Smith was necessary because of Kopec’s refusal to provide any information whatsoever. When Kopec groaned again and demanded that Officer Tate remove the cuffs because he was unable to feel his hand, Officer Tate interrupted his interview of Smith *783 and returned to Kopec’s side to evaluate the cuffs.

Viewed from the perspective of a reasonable officer, Tate’s conduct was not, in my view, unreasonable. He was constitutionally permitted to apply some force in arresting Kopec. After receiving notice that the force applied by the cuffs may have been excessive, Officer Tate responded reasonably.

I acknowledge that there was a brief delay in responding to Kopec’s complaints. That delay, however, was not unreasonable in the absence of any indication of pain or suffering in Kopec’s initial statements that would have conveyed to Tate that the force was excessive under the circumstances. Once Kopec fell to the ground and demanded the removal of the cuffs claiming a lack of feeling in his hand, Officer Tate advised that he would “be there in a minute” and responded within a reasonable period of time.

In my view, the totality of the circumstances considered by the majority has not adequately taken into account the fact that there was only one officer at the scene, and that he was occupied with another task'that was a legitimate police duty. In explaining its assessment of the attendant circumstances, the majority points out that Officer Tate “faced rather benign circumstances that hardly justified his failure to respond more promptly to Kopec’s entreaties .... Officer Tate was not, after all, in the midst of a dangerous situation involving a serious crime or armed criminals.” Maj. at 777. I agree that Officer Tate was not immediately confronted with a dangerous situation. Yet from the perspective of a reasonable officer, on the scene alone and dealing with two trespassers who were inexplicably unresponsive to his inquiries, there was justification for the officer’s refusal to immediately indulge Ko-pec’s initial requests so that the interview with Smith might continue.

In sum, I conclude that Kopec has failed to establish that there was a violation of his Fourth Amendment right to be free from the use of excessive force. Ordinarily, in the absence of a constitutional violation, “there is no necessity for further inquiries concerning qualified immunity.” Saucier, 533 U.S. at 201, 121 S.Ct. 2151 . I address the issue of qualified immunity only because I believe that, even if there was sufficient evidence to demonstrate a constitutional violation, Officer Tate should be accorded qualified immunity.

III.

The Supreme Court has repeatedly instructed that the determination of qualified immunity requires particularizing the constitutional right and determining the contours of that right. See Saucier, 533 U.S. at 201-02, 121 S.Ct. 2151 (discussing Anderson v. Creighton, 483 U.S. 635, 640 , 107 S.Ct. 3034 , 97 L.Ed.2d 523 (1987)). In Saucier, the Supreme Court held that a “ruling on qualified immunity requires an analysis not susceptible of fusion with the question whether unreasonable force was used in making the arrest.” 533 U.S. at 197, 121 S.Ct. 2151 . Thus, the determination of whether there is a constitutional violation is not co-extensive with the issue of whether a government official is entitled to qualified immunity. For that reason, the Supreme Court laid out the now familiar framework for analyzing qualified immunity claims, instructing that the first inquiry is whether there is a constitutional violation. Id. at 200, 121 S.Ct. 2151 . If such a violation is demonstrated, the next “step is to ask whether the right was clearly established.” Id. at 201, 121 S.Ct. 2151 . The Supreme Court reiterated that this second “inquiry, it is vital to note, must be undertaken in the light of the specific context of the case, not as a broad general proposition.” Id. (emphasis added).

*784 Consistent with this iteration, the Saucier Court observed that Graham’s general proposition that the use of excessive force is contrary to the Fourth Amendment was not particularized enough for the purpose of determining whether the law was clearly established. 533 U.S. at 201-02, 121 S.Ct. 2151 . Quoting Anderson v. Creighton, the Court emphasized that the “ ‘contours of the right must be sufficiently clear,’ ” and it instructed that

[t]he relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.... If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate.

Saucier, 533 U.S. at 202, 121 S.Ct. 2151 (quoting Anderson, 483 U.S. at 640 , 107 S.Ct. 3034 ).

In Bennett v. Murphy, 274 F.3d 133, 136 (3d Cir.2002), we observed that the two-part test enunciated in Saucier “clarified] the analysis to be undertaken by district courts and courts of appeals considering claims of qualified immunity in cases alleging excessive use of force.” Although my colleagues have employed the two-part test set forth in Saucier, I do not believe that them reliance on only the Fourth Amendment’s broad, general proscription against the use of excessive force is sufficient because it fails to take into account the situation confronting Officer Tate.

Supreme Court qualified immunity jurisprudence has long required that courts undertake a particularized inquiry. In the seminal case of Anderson , the Supreme Court observed that the determination of whether there is qualified immunity “depends substantially upon the level of generality at which the relevant ‘legal rule’ is to be identified.” 483 U.S. at 639 , 107 S.Ct. 3034 (examining qualified immunity in the context of a warrantless search). The Court recognized that if the test were applied at a general level, as I believe the majority does here, then “[pjlaintiffs would be able to convert the rule of qualified immunity that our cases plainly establish into a rule of virtually unqualified liability.... ” Id. Whether a legal rule is “clearly established,” the Court instructed, must be considered 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. This is not to say an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.

Id. (citations omitted) (emphasis added).

Subsequently, in Wilson v. Layne, 526 U.S. 603 , 119 S.Ct. 1692 , 143 L.Ed.2d 818 (1999), the Supreme Court concluded that allowing the media to ride along during the execution of a search warrant violated the Fourth Amendment. In determining whether qualified immunity was available to the officers, the Supreme Court reviewed its decisions in Harlow v. Fitzgerald, 457 U.S. 800 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982), and Anderson, supra, observing that

[i]t could plausibly be asserted that any violation of the Fourth Amendment is “clearly established,” since it is clearly established that the protections of the Fourth Amendment apply to the actions of police.... However, as we explained in Anderson , the right allegedly violated must be defined at the appropriate level of specificity before a court can determine if it was clearly established. In this case, the appropriate question is the *785 objective inquiry whether a reasonable officer could have believed that bringing members of the media into a home during the execution of an arrest warrant was lawful, in light of clearly established law and the information the officers possessed.

526 U.S. at 615 , 119 S.Ct. 1692 (emphasis added) (citations omitted). The Court held that it was not unreasonable for the officers to believe their conduct was lawful. In explaining its holding, the Supreme Court pointed to the absence of caselaw regarding the constitutionality of allowing the media to accompany police, as well as the existence of a government policy by the United States Marshal Service regarding the practice, and declared that the “state of the law ... was at best undeveloped.” 536 U.S. at 618, 122 S.Ct. 2428 . The Court further noted that a circuit split had developed on the question and declared that “[i]f judges thus disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy.” Id.

Most recently, in Hope v. Pelzer, 536 U.S. 730 , 122 S.Ct. 2508 , 153 L.Ed.2d 666 (2002), the Supreme Court reversed the Eleventh Circuit’s determination that qualified immunity precluded liability for a prisoner’s claims that his Eighth Amendment rights had been violated when he was handcuffed to a hitching post for seven hours. Citing its earlier precedents, the Supreme Court declared that the “salient question ... is whether the state of the law in 1995 gave respondents fair warning that their alleged treatment of [the inmate] was unconstitutional.” Id. at 741 , 122 S.Ct. 2508 (emphasis added). It concluded that the defendant officials had fair warning that the use of the hitching post under the circumstances alleged by Hope was unlawful, noting two Eleventh Circuit decisions and a report by the Department of Justice regarding the unconstitutionality of Alabama’s practice of using the hitching post. Id. at 743-45 , 122 S.Ct. 2508 . In addition, the Court observed that the “obvious cruelty inherent in this practice should have provided respondents with some notice that their alleged conduct violated Hope’s constitutional protection against cruel and unusual punishment.” Id. at 745-46 , 122 S.Ct. 2508 .

Accordingly, consistent with Hope, Saucier, Wilson and Anderson , I consider what the contours of the right were at the time of Kopec’s arrest and whether they were sufficiently clear to put Officer Tate on notice that his conduct would violate the Fourth Amendment right to be free from the use of excessive force. Saucier, 533 U.S. at 202, 121 S.Ct. 2151 .

In February 2000, only a handful of cases of § 1983 claims involving tight handcuffing were extant. See Carter v. Morris, 164 F.3d 215 , 219 n. 3 (4th Cir.1999); Heitschmidt v. City of Houston, 161 F.3d 834, 839-40 (5th Cir.1998); Mar tin v. Heideman, 106 F.3d 1308, 1313 (6th Cir.1997); Alexander v. County of Los Angeles, 64 F.3d 1315, 1323 (9th Cir.1995); Palmer v. Sanderson, 9 F.3d 1433, 1436 (9th Cir.1993); Foster v. Metro. Airports Comm’n, 914 F.2d 1076, 1082 (8th Cir.1990). Significantly, in Carter and Foster , tight handcuffing alone was insufficient to establish an excessive force claim. The remaining cases, however, concluded there were sufficient facts to demonstrate a Fourth Amendment violation. As I point out above, the common thread in these latter cases is that: (1) the arrestee complained that the cuffs were too tight and painful, thereby providing notice to the officer(s) that the force applied may have been excessive under the circumstances; and (2) the officer(s) failed to reasonably respond to the arrestee’s complaints. Thus, the caselaw in February 2000 established that liability may attach if an officer *786 unreasonably ignores or is indifferent to the complaints of an arrestee that the force applied by the handcuffs may be excessive under the circumstances.

Prior to the incident at issue in this case, the easelaw did not provide any guidance with respect to how quickly an officer must respond to a complaint that handcuffs have been applied too tightly. Nor was there any guidance in the cases as to how an officer should prioritize his response when there are other tasks in which he is legitimately engaged or may be required to undertake at the time.

In light of this easelaw, I conclude that Tate could have reasonably believed that his response to Kopec’s complaints was lawful. To put it another way, I believe the law did not put Officer Tate on notice that he had to respond immediately to Kopec’s complaint that the handcuffs were too tight. Nor was there any easelaw providing Officer Tate with fair notice that he must stop engaging in the legitimate police task at hand, ie., interviewing Smith, in order to assess whether the handcuffs were too tight. Because the easelaw 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 , 122 S.Ct. 2508 ; Saucier, 533 U.S. at 202, 121 S.Ct. 2151 .

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.

. See also Braun v. Baldwin, 346 F.3d 761, 763 (7th Cir.2003) (affirming, inter alia, grant of summary judgment for defendants on excessive use of force claim based on tight handcuffing because there was no indication "arrest was effected in an unusual or improper manner”); Burchett v. Kiefer, 310 F.3d 937, 944-45 (6th Cir.2002) (summary judgment for officers on excessive force claim affirmed because officers removed the handcuffs once plaintiff complained they were too tight); Rodriguez v. Farrell, 280 F.3d 1341 , 1351 (11th Cir.2002) ("painful handcuffing, without more,” is not excessive force); Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir.2001) (declaring that "handcuffing too tightly, without more, does not amount to excessive force”); Carter v. Morris, 164 F.3d 215 , 219 n. 3 (4th Cir.1999) (finding that plaintiff's allegation that she was handcuffed too tightly was "so insubstantial that it cannot as a matter of law support her claim” of excessive force); Foster v. Metro. Airports Comm'n, 914 F.2d 1076, 1082 (8th Cir.1990) (court affirmed grant of summary judgment for officers based on tight handcuffing, explaining that plaintiff’s allegations of pain alone were insufficient to support his claim of excessive force).

. See Kukla v. Hulm, 310 F.3d 1046 (8th Cir.2002); Bastien v. Goddard, 279 F.3d 10 , 12-13 (1st Cir.2002) (reversing judgment for officer based on tight handcuffing for more than four hours despite plaintiffs repeated complaints); Kostrzewa v. City of Troy, 247 F.3d 633, 639-40 (6th Cir.2001) (officer documented that he had been able to tighten the cuffs to only the first tooth because the plaintiff had large wrists, yet he ignored plaintiff's persistent complaints that tire cuffs were too small and tight until after the plaintiff was booked); Heitschmidt v. City of Houston, 161 F.3d 834, 839-40 (5th Cir.1998) (reversing summary judgment for officers who ignored repeated complaints over a four-hour period and pointing out that the officers had no justification for refusing to adjust the painful cuffs); Martin v. Heideman, 106 F.3d 1308, 1310, 1313 (6th Cir.1997) (plaintiff's complaints that his hands were becoming numb and swollen and the officer’s failure to adjust the handcuffs were sufficient to state a Fourth Amendment claim); Alexander v. County of Los Angeles, 64 F.3d 1315, 1323 (9th Cir.1995) (officer failed to adjust handcuffs even though plaintiff complained of pain, alerted the officer that his medical condition necessitated adjusting the handcuffs, and the officer noted that the plaintiff's wrists were "mushy” when he applied the cuffs).