Filed: Mar. 17, 2004
Latest Update: Mar. 02, 2020
Summary: 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of the United 2004 Decisions States Court of Appeals for the Third Circuit 3-17-2004 Kopec v. Tate Precedential or Non-Precedential: Precedential Docket No. 02-4188 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Kopec v. Tate" (2004). 2004 Decisions. Paper 888. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/888 This decision is brought to you for free and open access by the Opinions of the United States Cou
Summary: 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of the United 2004 Decisions States Court of Appeals for the Third Circuit 3-17-2004 Kopec v. Tate Precedential or Non-Precedential: Precedential Docket No. 02-4188 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Kopec v. Tate" (2004). 2004 Decisions. Paper 888. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/888 This decision is brought to you for free and open access by the Opinions of the United States Cour..
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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Precedential or Non-Precedential: Precedential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
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Kopec v. Tate" (2004). 2004 Decisions. Paper 888.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/888
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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
