18‐1378
Cugini v. City of New York, Palazzola



                    UNITED STATES COURT OF APPEALS
                        FOR THE SECOND CIRCUIT
                               August Term, 2019
           (Argued: March 29, 2019           Decided: October 25, 2019)
                               Docket No. 18‐1378



                                 DONNA CUGINI,
                                Plaintiff‐Appellant,

                                        v.

                  CITY OF NEW YORK, CHRISTOPHER PALAZZOLA,
                             Defendants‐Appellees.


Before:     SACK, HALL, AND DRONEY, Circuit Judges.

      The plaintiff‐appellant, Donna Cugini, brought a civil rights action in the

United States District Court for the Eastern District of New York against the City

of New York and Officer Christopher Palazzola in his individual capacity. She

alleged a federal claim for excessive force against Palazzola, under the Fourth

and Fourteenth Amendments pursuant to 42 U.S.C. § 1983, and state law claims

against the City for assault and battery and negligence. As relevant to this

appeal, she alleged that Palazzola used excessive force in placing her in

handcuffs while she was in custody, thereby causing her to suffer, among other
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things, permanent nerve damage to her wrist. On the defendantsʹ motion for

summary judgment, the district court (Sterling Johnson, Jr., Judge) assumed

without deciding that the plaintiff had established her constitutional claim. It

granted the defendantsʹ motion for summary judgment, however, on the ground

that Palazzola was entitled to qualified immunity because his behavior did not

constitute a violation of a clearly established constitutional right. Because it

dismissed the plaintiffʹs federal claim against Palazzola individually, the court

declined to exercise supplemental jurisdiction over the plaintiffʹs state law claims

against the City. We conclude that the plaintiff sufficiently established her

constitutional claim for excessive force for purposes of surviving a motion for

summary judgment. However, because at the time of the plaintiffʹs arrest

Palazzolaʹs actions did not violate clearly established constitutional law, the

district court correctly concluded that his actions were protected by qualified

immunity and granted summary judgment on that basis. Accordingly, the

district courtʹs judgment is:


      AFFIRMED.


                                       SCOTT A. KORENBAUM (Jason Leventhal,
                                       Leventhal Law Group, P.C., Brooklyn, NY,



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                                      on the brief), New York, NY, for Plaintiff‐
                                      Appellant.
                                      DIANA LAWLESS (Zachary W. Carter,
                                      Richard Dearing, Scott Shorr, on the brief),
                                      Corporation Counsel of the City of New
                                      York, New York, NY, for Defendants‐
                                      Appellees.
SACK, Circuit Judge:

      On June 26, 2014, the plaintiff‐appellant Donna Cugini voluntarily

surrendered to police custody in Staten Island, New York, in connection with a

misdemeanor complaint of domestic stalking and harassment filed against her by

her estranged sister. During her subsequent temporary detention, she was

handcuffed, suffering serious bodily injury as a result. She brought this action in

the United States District Court for the Eastern District of New York against the

City of New York and the police officer who physically restrained her while she

was in custody, Officer Christopher Palazzola, in his individual capacity. She

asserted a federal claim against Palazzola, under the Fourth and Fourteenth

Amendments pursuant to 42 U.S.C. § 1983, alleging that he used excessive force

when handcuffing her, thereby causing her to suffer, among other things,

permanent nerve damage to her wrist. She also made supplemental state law

claims of assault and battery and negligence against the City of New York.




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      On the defendantsʹ motion for summary judgment, the district court

(Sterling Johnson, Jr., Judge) assumed without deciding that Cugini had

established her constitutional claim. The court concluded, however, that

Palazzolaʹs actions did not violate a clearly established constitutional right, in

part because Cugini gave only brief physical and non‐verbal manifestations of

her discomfort while handcuffed, and thus failed to alert Palazzola sufficiently to

her distress. The district court concluded that Palazzola was therefore entitled to

qualified immunity and granted summary judgment on that basis. After

dismissing Cuginiʹs federal claim, the district court declined to exercise

supplemental jurisdiction over her state law claims against the City.


      On appeal, Cugini argues that the district court thus erred. She contends

that Palazzola violated her clearly established constitutional right by using force

against her that was excessive within the meaning of the Fourth Amendment.

She also asserts that because she has demonstrated that her federal law claim

was wrongly dismissed, she should be permitted to pursue her state law claims

against the City in federal court.


      Under Graham v. Connor, 490 U.S. 386 (1989), we review a plaintiffʹs

excessive force claim under the Fourth Amendment standard of objective


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reasonableness to assess whether an officerʹs conduct was appropriate in light of

the facts and circumstances confronting him. Id. at 397. To determine whether

the amount of force an officer used was reasonable, we balance an individualʹs

Fourth Amendment interests against countervailing governmental interests,

including the severity of the crime and whether the suspect poses a safety or

flight risk or resists arrest. Id. at 396. A plaintiff must also demonstrate that the

officer was made reasonably aware that the force used was excessive. See

Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015) (objective reasonableness

determination must be made ʺfrom the perspective of a reasonable officer on the

scene, including what the officer knew at the time.ʺ) A plaintiff satisfies this

requirement if either the unreasonableness of the force used was apparent under

the circumstances, or the plaintiff signaled her distress, verbally or otherwise,

such that a reasonable officer would have been aware of her pain, or both. See id.


      We conclude that the plaintiff has sufficiently established her

constitutional claim for purposes of surviving a motion for summary judgment.

A reasonable jury could find that Palazzolaʹs actions were objectively

unreasonable in light of, inter alia, the minor nature of the plaintiffʹs alleged

crime, the circumstances of her arrest, and the fact that the plaintiff posed no


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apparent risk of flight or physical threat to the police or others. The defendant

was also reasonably made aware of the plaintiffʹs pain, both as a result of her

signs of distress—her repeated audible, if not verbal, expressions of pain—and

because the unreasonableness of the force used by the defendant was apparent

under the circumstances.


      Nevertheless, because at the time of the defendantʹs actions it was not

clearly established law that a plaintiff who did not verbally complain or request

to have her handcuffs adjusted or removed, or both, could nevertheless recover

on a handcuffing‐based excessive force claim, the defendant was entitled to

qualified immunity. The district court therefore correctly granted the

defendantsʹ motion for summary judgment on that ground.


      Factual Background


      We summarize the facts of this case ʺresolving all ambiguities and drawing

all factual inferences in plaintiff[ʹs] favor as the non‐moving party,ʺ as we must in

reviewing the grant of a motion for summary judgment. Anthony v. City of New

York, 339 F.3d 129, 134 (2d Cir. 2003) (citation omitted).




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         The plaintiff‐appellant, Donna Cugini, was at all relevant times a 58‐year

old nursing coordinator residing in Staten Island (Richmond County), New York.

The defendant‐appellee, Officer Christopher Palazzola, was at all relevant times

a domestic violence prevention officer for the New York City Police Department

assigned to the 121st Precinct on Staten Island.


         On June 26, 2014, Cugini voluntarily surrendered to police custody at the

121st Precinct, as arranged by her attorney, in connection with a misdemeanor

complaint of domestic stalking and harassment filed by her estranged sister.

When Cugini arrived at the precinct, Palazzola handcuffed her, processed her

arrest, and led her to a holding cell, where he removed her handcuffs.1


         Some two hours later, Palazzola returned to the plaintiffʹs holding cell to

move her to Staten Island Central Booking located inside the 120th Precinct

stationhouse (ʺCentral Bookingʺ). He instructed her to step out of her cell and

place her hands behind her back. Although she readily complied, Palazzola

grabbed her arms, twisted her wrists into a ʺweird position,ʺ and handcuffed her

ʺvery tight.ʺ Cugini Dep. June 7, 2016 (ʺCugini Dep.ʺ), 13‐14, J. App. 55‐56. She



1   Cugini asserts no claims in this litigation based on her initial handcuffing.


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said ʺouch,ʺ and her body shuddered. Id. at 14, J. App. 56. In response,

Palazzola threatened her—ʺdonʹt make me hurt youʺ—and tightened her

handcuffs further. Id. at 15‐18, J. App. 57‐60. The plaintiff again reacted, either

exclaiming ʺowʺ or uttering a ʺcry.ʺ Id. at 18, J. App. 60. Once the plaintiff was

handcuffed, Palazzola moved her to the rear of a police car and drove her to

Central Booking. Approximately 40 minutes elapsed between the time Palazzola

handcuffed Cugini and their arrival at Central Booking. During that time, the

plaintiff did not otherwise inform Palazzola that her handcuffs were causing her

pain or ask that they be adjusted, refraining from doing so, she testified, because

she was ʺtoo scared.ʺ Cugini Examination Aug. 31, 2015, 37, J. App. 187.


      Once they arrived at Central Booking, Palazzola attempted to remove

Cuginiʹs handcuffs. She felt Palazzola ʺrip the cuffsʺ and continue to tighten,

rather than loosen, them. Cugini Dep. 24‐25, J. App. 66‐67. A nearby officer saw

that Palazzola had put the handcuffs on backwards. Palazzola continued to

ʺfiddl[e] around with themʺ and to make the handcuffs ʺtighter and tighter.ʺ Id.

at 25, J. App. 67. The other officer called for someone else to remove them.


      Immediately upon removal of her handcuffs, Cugini felt pain in her wrists.

When she was released from custody later that day, she went directly to the


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emergency room at Richmond University Medical Center. Soon thereafter, she

nevertheless began experiencing pain, numbness, and twitching in her arms.

She continues to suffer from what has been diagnosed as permanent nerve

damage to her right wrist, and has lost the ability to perform many basic

household functions as a result.


      In January 2015, all of the charges against the plaintiff were dismissed by

New York State for lack of evidence.


      Procedural History


      On September 23, 2015, the plaintiff filed a complaint in the United States

District Court for the Eastern District of New York against Officer Palazzola (the

ʺdefendantʺ) in his individual capacity and the City of New York (the ʺCityʺ;

together with the defendant, the ʺdefendantsʺ). She alleged a federal claim for

excessive force under the Fourth and Fourteenth Amendments pursuant to 42

U.S.C. § 1983 against Palazzola. She also alleged supplemental state law claims

for assault and battery and negligence against the City.


      On February 2, 2018, the defendants moved for summary judgment. They

argued that the plaintiff could not recover on her excessive force claim against




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Palazzola because she lacked proof that she had complained about her handcuffs

at the time or requested that they be adjusted. And they asserted that even if the

plaintiffʹs constitutional rights had been violated, Palazzola was entitled to

qualified immunity because a reasonable officer could conclude that he acted

properly under the circumstances. Finally, they argued that because the

plaintiffʹs federal law claim should be dismissed, the district court should decline

to exercise supplemental jurisdiction over her state law claims against the City.

The plaintiff opposed the motion, contending that her shudders and utterances

of ʺouchʺ and ʺowʺ as her handcuffs were being tightened were ʺobvious and

clear expressions of pain and made [Palazzola] aware that [her] handcuffs were

too tight and were needlessly causing pain and injury.ʺ Pl. Mem. of Law in Opp.

to Sum. J., Feb. 2, 2018, at 8 (Dkt. #30), J. App. 6. She argued that Palazzola

should not be entitled to qualified immunity solely on the basis of her failure to

verbalize her pain because he ʺcaused [her] silence by intimidating [her] with [a]

threat.ʺ Id. at 9.2




2 In her opposition to summary judgment, Cugini also voluntarily dismissed her state‐
law negligence claim against the City.


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      On April 10, 2018, the district court granted the defendantsʹ motion for

summary judgment. As a preliminary matter, the court briefly addressed the

substance of the plaintiffʹs constitutional claim. In response to the defendantsʹ

argument that the plaintiff could not prevail on her claim because ʺshe never

asked that the handcuffs be loosened, or otherwise clearly communicated that

they were causing her pain,ʺ the court wrote that such a proposition

ʺoversimplifies the inquiry.ʺ Cugini v. City of New York, No. 15‐CV‐5517 (SJ) (ST),

2018 WL 1730334, at *2 n.1, 2018 U.S. Dist. LEXIS 60741, at *5 n.1 (E.D.N.Y. Apr.

10, 2018) (internal quotation marks omitted). It further noted that it was ʺreticent

to impose a standard that would deny a plaintiff her day in court simply because

she did not utter the magic words.ʺ Id. ʺSuch a result,ʺ the court reasoned, ʺis

not in the spirit of the fact‐specific inquiry the Fourth Amendment necessitates.ʺ

Id. For purposes of its qualified immunity analysis, however, the district court

assumed without deciding that the plaintiff had suffered a Fourth Amendment

injury and did not address the issue further.


      The district court then concluded that Palazzola was entitled to summary

judgment on the ground of qualified immunity. ʺNothing in the facts indicates

that [Palazzola] used force beyond that which was necessary to handcuff an


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arrestee.ʺ Cugini, 2018 WL 1730334, at *3, 2018 U.S. Dist. LEXIS 60741, at *6.

Moreover, the plaintiffʹs ʺbrief physical and verbal manifestations of tepid

discomfort were followed by a prolonged period free from any such

expressions.ʺ Id. Under these circumstances, the court thought, reasonable

officers could differ as to the legality of the defendantʹs conduct. The court

therefore concluded that Palazzola was entitled to qualified immunity and

granted summary judgment with respect to the plaintiffʹs excessive force claim

against him. After dismissing the plaintiffʹs only federal claim, the district court

declined to exercise supplemental jurisdiction over her state law claims against

the City.


      Cugini argues on appeal that the district court erred by granting Palazzola

qualified immunity because a reasonable jury could conclude that the defendant

violated her clearly established Fourth Amendment rights by applying her

handcuffs with excessive force, while aware that he was doing so, resulting in

permanent nerve damage to her wrist. The plaintiff also contends that because

her federal law claim against Palazzola is viable, she should be permitted to

pursue her state law claims against the City in federal district court.


                                  DISCUSSION


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     I.      Standard of Review


          ʺWe review a district courtʹs grant of summary judgment de novo to

determine whether the district court properly concluded that there was no

genuine dispute as to any material fact, such that the moving party was entitled

to judgment as a matter of law.ʺ Myers v. Patterson, 819 F.3d 625, 632 (2d Cir.

2016). We do so ʺresolving all ambiguities and drawing all factual inferences in

plaintiff[ʹs] favor as the non‐moving party.ʺ Anthony, 339 F.3d at 134.


          When a public official such as Palazzola invokes qualified immunity at the

summary judgment stage, we ʺmust consider two questions: (1) whether the

evidence, viewed in the light most favorable to the plaintiff, makes out a

violation of a statutory or constitutional right, and (2) whether that right was

clearly established at the time of the alleged violation.ʺ Tracy v. Freshwater, 623

F.3d 90, 96 (2d Cir. 2010).3 In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme

Court concluded that we must conduct these inquiries sequentially. Id. at 201.4



3We sometimes discuss the doctrine of qualified immunity, as we did in Tracy, in terms
of the ʺviolation of a statutory or constitutional right.ʺ 623 F.3d at 96 (emphasis added).
On this appeal, it is the constitutional rights of the plaintiff that are at issue.

4   The Saucier test was later described by the Supreme Court thus:




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In Pearson v. Callahan, 555 U.S. 223 (2009), however, it modified the Saucier two‐

step procedure so that we are now ʺpermitted to exercise [our] sound discretion

in deciding which of these two prongs of the qualified immunity analysis should

be addressed first in light of the circumstances in the particular case at hand.ʺ Id.

at 236. Here, we address them consecutively because the case involves

ʺquestions that do not frequently arise in cases in which a qualified immunity

defense is unavailable.ʺ Id.; see also Berg v. Kelly, 897 F.3d 99, 106 (2d Cir. 2018)

(commenting that it is ʺworthwhileʺ to exercise discretion in addressing both

prongs of the qualified immunity analysis under similar circumstances (quoting

Pearson, 555 U.S. at 242)). Accordingly, we first ask whether, taking the facts in

the light most favorable to the plaintiff, she has sufficiently established a

constitutional claim of excessive force.


   II.      Excessive Force



         In Saucier [v. Katz, 533 U.S. 194 (2001)], this Court mandated a two‐step
         sequence for resolving government officialsʹ qualified immunity claims.
         First, a court must decide whether the facts that a plaintiff has alleged . . .
         or shown . . . make out a violation of a constitutional right. 533 U.S.[] at
         201. Second, if the plaintiff has satisfied this first step, the court must
         decide whether the right at issue was ʹclearly establishedʹ at the time of
         defendantʹs alleged misconduct. [Id.]

Pearson v. Callahan, 555 U.S. 223, 232 (2009).


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      The plaintiff asserts that Palazzola violated her constitutional rights by

using excessive force in handcuffing her while she was in custody. The district

court declined to decide the plaintiffʹs constitutional claim, moving directly to its

analysis of qualified immunity instead. Addressing that issue on review

nonetheless, as we are permitted to do under Pearson, we conclude that the

plaintiff has sufficiently established a constitutional claim for excessive force.


          1. Legal Standard


      In Graham v. Connor, 490 U.S. 386 (1989), the Supreme Court concluded

that where a claim for excessive force ʺarises in the context of an arrest or

investigatory stop of a free citizen, it is most properly characterized as one

invoking the protections of the Fourth Amendment.ʺ Id. at 394. It is therefore

analyzed under the Fourth Amendmentʹs ʺreasonablenessʺ standard, rather than

under the subjective ʺsubstantive due processʺ approach, id. at 396‐97, ʺwhich

requires consideration of whether the individual officers acted in good faith or

maliciously and sadistically for the very purpose of causing harm,ʺ id. at 397

(internal quotation marks omitted). Because ʺthe right to make an arrest or

investigatory stop necessarily carries with it the right to use some degree of

physical coercion or threat thereof to effect it,ʺ determining whether the amount


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of force an officer used is reasonable ʺrequires a careful balancing of the nature

and quality of the intrusion on the individualʹs Fourth Amendment interests

against the countervailing governmental interests at stake.ʺ Id. at 396 (citations

and internal quotation marks omitted). The proper application of the

reasonableness standard, according to the Graham Court, ʺrequires careful

attention to the facts and circumstances of each particular case, includingʺ (1)

ʺthe severity of the crime at issue,ʺ (2) ʺwhether the suspect poses an immediate

threat to the safety of the officers or others,ʺ and (3) ʺwhether [the suspect] is

actively resisting arrest or attempting to evade arrest by flight.ʺ Id. And the

Court reiterated that the reasonableness inquiry is an ʺobjective one.ʺ Id. at 397.

It requires a court to view officersʹ actions ʺin light of the facts and circumstances

confronting them, without regard to their underlying intent or motivationʺ or

ʺthe 20/20 vision of hindsight.ʺ Id. at 396‐97 (citation omitted).


      Graham thus stands for the proposition that a government officer may not

intrude on a personʹs Fourth Amendment rights by employing a degree of force

beyond that which is warranted by the objective circumstances of an arrest. And

we decided long ago that the objective reasonableness standard established in

Graham applies to actions taken with respect to a person who asserts, as does the


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plaintiff here, a claim for excessive force after she has been arrested and

detained, but ʺprior to the time when [she] is arraigned or formally charged, and

remains in the custody (sole or joint) of the arresting officer.ʺ Powell v. Gardner,

891 F.2d 1039, 1044 (2d Cir. 1989).


       In Esmont v. City of New York, 371 F. Supp. 2d 202 (E.D.N.Y. 2005), the

United States District Court for the Eastern District of New York concluded that

placing handcuffs on an arrestee in a manner that causes injury may ʺconstitute

excessive force in violation of the Fourth Amendment.ʺ Id. at 215 (citation

omitted). And it provided three evidentiary factors for courts to consider in

evaluating the reasonableness of a handcuffing: that ʺ(1) the [arresteeʹs]

handcuffs were unreasonably tight; (2) the defendants ignored the arresteeʹs

pleas that the handcuffs were too tight; and (3) the degree of injury to the

[arresteeʹs] wrists.ʺ Id. at 215. Following Esmont, evidence of these factors has

often been employed by other district courts in this Circuit to determine whether

a plaintiff has sufficiently alleged a claim for excessive force in the process of

handcuffing.5



5See, e.g., Pizarro v. Ponte, No. 17 Civ. 4412 (LGS), 2019 WL 568875, at *6, 2019 U.S. Dist.
LEXIS 22767, at *13‐14 (S.D.N.Y. Feb. 11, 2019); Othman v. City of New York, No. 13 Civ.



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       These evidentiary factors may, indeed, prove useful to a district court in

assessing the soundness of a handcuffing‐based excessive force claim. The ʺtest

of reasonableness under the Fourth Amendment,ʺ however, ʺis not capable of

precise definition or mechanical application.ʺ Graham, 490 U.S. at 396 (internal

quotation marks omitted). A courtʹs reasonableness analysis is not limited to a

factual checklist; it must instead be guided by a ʺcareful balanc[e]ʺ between the

ʺnature and quality of the intrusionʺ and the ʺcountervailing government

interests at stakeʺ under the circumstances. Id. (citation and internal quotation

marks omitted).

       Thus a plaintiff asserting a claim for excessive force need not always

establish that she alerted an officer to the fact that her handcuffs were too tight or

causing pain. The question is more broadly whether an officer reasonably

should have known during handcuffing that his use of force was excessive. A

plaintiff satisfies this requirement if either the unreasonableness of the force used




4771, 2018 WL 1701930, at *7, 2018 U.S. Dist. LEXIS 59967, at *21 (E.D.N.Y. Mar. 31,
2018); Ali v. Ramos, No. 16‐CV‐01994 (ALC), 2018 WL 1353210, at *5, 2018 U.S. Dist.
LEXIS 42489, at *10‐12 (S.D.N.Y. Mar. 14, 2018); Lloyd v. City of New York, 246 F. Supp. 3d
704, 724 (S.D.N.Y. 2017); Case v. City of New York, 233 F. Supp. 3d 372, 385 (S.D.N.Y.
2017); Barcomb v. Kraeger, No. 14‐CV‐1159 (JBA), 2016 WL 2644885, at *5, 2016 U.S. Dist.
LEXIS 60536, at *14‐17 (D. Conn. May 5, 2016).


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was apparent under the circumstances, or the plaintiff signaled her distress,

verbally or otherwise, such that a reasonable officer would have been aware of

her pain, or both. See Stainback v. Dixon, 569 F.3d 767, 772 (7th Cir. 2009) (ʺ[I]n

some cases, the fact that an act will cause pain or injury will be clear from the

nature of the act itself.ʺ); Cortez v. McCauley, 478 F.3d 1108, 1129 (10th Cir. 2007)

(en banc) (noting that the plaintiff must allege that ʺan officer ignored [her] timely

complaints (or was otherwise made aware) that the handcuffs were too tightʺ)

(emphasis added); Liiv v. City of Coeur DʹAlene, 130 F. Appʹx 848, 852 (9th Cir.

2005) (recognizing excessive force claims may arise where ʺplaintiffs either

suffered damage to their wrists as a consequence of the handcuffs or the plaintiffs

complained to the officers about the handcuffs being too tightʺ) (emphasis

added). And, as with all aspects of a Fourth Amendment inquiry, an officerʹs

awareness is ʺjudged from the perspective of a reasonable officer on the scene.ʺ

Graham, 490 U.S. at 396 (citation omitted).

      We conclude that where an officerʹs use of force in handcuffing is plainly

unreasonable under the circumstances or where a plaintiff manifests clear signs

of her distress—verbally or otherwise—a fact finder may decide that the officer




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reasonably should have known that his use of force was excessive for purposes

of establishing a Fourth Amendment violation.

          2. Application


      We conclude that each of the Graham factors weighs decidedly in the

plaintiffʹs favor here. First, the crime at issue was a relatively minor one: the

misdemeanor offense of stalking and harassing a family member from whom she

was estranged. Second, there is no indication that the plaintiff posed a safety

threat, immediate or otherwise, to Palazzola or anyone else. To the contrary, she

voluntarily surrendered to police custody at her local precinct as instructed by

her attorney. Third, she did not try to flee or resist Palazzolaʹs attempt to

handcuff her. She was in police custody at the time of his alleged abuse and

complied with all of his directives while there. Under these circumstances, a

reasonable jury could find that the severity of Palazzolaʹs intrusion—continuing

to tighten the plaintiffʹs handcuffs after she expressed physical pain and using

force strong enough to cause her permanent injury—was unjustified. See, e.g.,

Payne v. Pauley, 337 F.3d 767, 778–79 (7th Cir. 2003) (finding that officerʹs ʺforce in

arresting a woman who was not threatening to harm the police officer or anyone

else at the scene, was not resisting or evading arrest, was not attempting to flee,


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and was charged with such minor offenses, was not objectively reasonableʺ);

Kopec v. Tate, 361 F.3d 772, 777‐78 (3d Cir. 2004) (deciding that overly tight

handcuffing of arrestee for ten minutes leading to permanent wrist injury was

unreasonable under ʺbenign circumstancesʺ); Saunders v. Duke, 766 F.3d 1262,

1264 (11th Cir. 2014) (ʺ[A] police officer violates the Fourth Amendment . . . if he

or she uses gratuitous and excessive force against a suspect who is under control,

not resisting, and obeying commands.ʺ)


      A reasonable officer on the scene should have known that the force used

was excessive. A reasonable jury could find that the degree of force employed by

Palazzola was, objectively considered, disproportionate and unwarranted under

the circumstances. Moreover, Cugini directly communicated her distress to

Palazzola through her pained utterances and bodily shudders while he was

handcuffing her. The defendant responded by threatening further harm—ʺdonʹt




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make me hurt youʺ6—with the likely goal of silencing her complaints.7 He then

continued to tighten her handcuffs, and Cugini again evidenced her physical

discomfort. Under these circumstances, the defendant should reasonably have

known that his use of force was excessive, both because the plaintiff clearly

signaled her distress and because the excessive nature of the force used was


6 The defendant argues that Cugini should not be permitted to rely on the threat that
she alleges he made in asserting her excessive force claim because doing so would
require the court to assess his subjective motivation. We are indeed not permitted to
take Palazzolaʹs ʺunderlying intent or motivationʺ simpliciter into account in our
analysis of the plaintiffʹs constitutional claim. Graham, 490 U.S. at 397. But neither are
we permitted to ignore ʺthe facts and circumstances of [this] particular case.ʺ Id.
Viewed in the light most favorable to Cugini, the facts here include a law enforcement
officerʹs threat to the plaintiff with the apparent goal, and ultimate effect, of silencing
her cries of distress, and a realization of that threat through the subsequent tightening
of the plaintiffʹs handcuffs. A reasonable jury could find that Palazzolaʹs threatened
harm reflected not only his subjective motivation, but also, objectively, whether the
force used was excessive and whether he was reasonably made aware of the plaintiffʹs
pain. A reasonable jury could also find that it was unreasonable for Palazzola to
assume that the plaintiff was all right based on her silence following the handcuffing, in
light of the fact that the plaintiff may only have remained silent because of Palazzolaʹs
threat of further pain. It may therefore to that extent be considered.

7Other courts have noted the risk that officer intimidation may suppress the complaints
of an arrested person. See Warren v. Williams, No. Civ.A. 304CV537 (JCH), 2006 WL
860998, at *37, 2006 U.S. Dist. LEXIS 18900, at *113‐14 (D. Conn. Mar. 31, 2006) (where
officers made threats of further force, and plaintiff failed to complain out of fear,
ʺgeneral complaints about the handcuffs [from others] could have reasonably put the
defendants on notice that they should check and adjust the cuffs of the occupantsʺ); see
also Fry v. Smoker, No. Civ.A. 11‐3015, 2012 WL 1622656, at *6, 2012 U.S. Dist. LEXIS
64939, at *16‐17 (E.D. Pa. May 9, 2012) (noting that there are ʺnumerous reasons why
arrestees may not complain to arresting officers that their handcuffs are too tight, such
as intimidation by the officerʺ).


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apparent.

      We conclude, then, that a reasonable jury could find that the defendantʹs

actions were objectively unreasonable under the circumstances and that Cugini

has therefore established a Fourth Amendment violation for present purposes.


   III.   Qualified Immunity


      The district court granted summary judgment on the ground that

irrespective of whether Palazzola violated a constitutional right of the plaintiff,

he was entitled to qualified immunity. On appeal, the plaintiff argues that there

was clearly established law at the time of the relevant events that ʺthe use of

entirely gratuitous force against a restrained and unresisting arrestee by an

officer is unreasonable, and therefore, excessive within the meaning of the Fourth

Amendment.ʺ Pl. Br. 18. The defendant responds that the facts as the plaintiff

alleges them did not constitute a violation of clearly established law because,

according to the allegations, she ʺdid not alert [him] that he could not tighten, or

had to loosen, [her] handcuffs.ʺ Def. Br. 7.


      To determine whether a defendant officer is entitled to qualified immunity

from a Fourth Amendment claim against him on a motion for summary

judgment, we are to assess whether ʺunder clearly established law, every

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                                                           Cugini v. City of New York, Palazzola

reasonable officer would have concluded that [the defendantʹs] actions violated

[the plaintiffʹs] Fourth Amendment rights in the particular circumstance

presented by the uncontested facts and the facts presumed in [the plaintiffʹs]

favor.ʺ Brown v. City of New York, 862 F.3d 182, 190 (2d Cir. 2017). In other

words, summary judgment for the defendant is required where ʺthe only

conclusion a rational jury could reach is that reasonable officers would disagree

about the legality of the [defendantʹs] conduct under the circumstances.ʺ Lennon

v. Miller, 66 F.3d 416, 421 (2d Cir. 1995). As a general rule, to determine whether

a right is clearly established, we consider ʺSupreme Court decisions, our own

decisions, and decisions from other circuit courts.ʺ Simon v. City of New York, 893

F.3d 83, 92 (2d Cir. 2018); see also Ashcroft v. al‐Kidd, 563 U.S. 731, 746 (2011)

(ʺ[Q]ualified immunity is lost when plaintiffs point either to cases of controlling

authority in their jurisdiction at the time of the incident or to a consensus of cases

of persuasive authority such that a reasonable officer could not have believed

that his actions were lawful.ʺ) (internal quotation marks omitted). That is not to

say, however, that courts ʺrequire a case directly on point, but existing precedent

must have placed the statutory or constitutional question beyond debate.ʺ al‐

Kidd, 563 U.S. at 741.



                                           24
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                                                               Cugini v. City of New York, Palazzola

       At the time of the plaintiffʹs arrest, the use of excessive force in

handcuffing was prohibited by clearly established constitutional law. While we

had yet to formally hold that a defendant may violate a plaintiffʹs Fourth

Amendment rights in a handcuffing‐based excessive force claim, we had long

rejected the principle that handcuffing is ʺper se reasonable.ʺ Soares v. State of

Conn., 8 F.3d 917, 921 (2d Cir. 1993); see Johnson v. Turnbill, 715 F. Appʹx 84, 85 (2d

Cir. 2018) (summary order) (recognizing that ʺexcessively tight handcuffing that

causes injury can constitute excessive forceʺ under the Fourth Amendment

(quoting Shamir v. City of New York, 804 F.3d 553, 557 (2d Cir. 2015)). And a

consensus existed among our sister circuits that unduly tight handcuffing can

constitute excessive force in violation of the Fourth Amendment.8 That was

enough to clearly establish in this Circuit that an officerʹs use of excessive force




8See, e.g., Calvi v. Knox Cty., 470 F.3d 422, 428 (1st Cir. 2006); Kopec, 361 F.3d at 777‐78
(3d Cir. 2004); Heitschmidt v. City of Houston, 161 F.3d 834, 839‐40 (5th Cir. 1998); Lyons v.
City of Xenia, 417 F.3d 565, 575‐76 (6th Cir. 2005); Herzog v. Vill. of Winnetka, 309 F.3d
1041, 1043 (7th Cir. 2002); Hanig v. Lee, 415 F.3d 822, 824 (8th Cir. 2005); Liiv, 130 F.
Appʹx at 852 (9th Cir. 2005); Vondrak v. City of Las Cruces, 535 F.3d 1198, 1208‐09 (10th
Cir. 2008). But see Brown v. Gilmore, 278 F.3d 362, 369 (4th Cir. 2002) (ʺ[A] standard
procedure such as handcuffing would rarely constitute excessive force where the
officers were justified . . . in effecting the underlying arrest.ʺ).




                                             25
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                                                             Cugini v. City of New York, Palazzola

during handcuffing could give rise to a Fourth Amendment claim for excessive

force.9

          Even assuming that the right to be free from excessive force during

handcuffing was then clearly established, however, we cannot rest our ultimate

conclusion as to immunity on a right that was clearly established only at ʺa high

level of generality.ʺ al‐Kidd, 563 U.S. at 742. Our analysis must instead be

ʺparticularizedʺ to the facts of the case. Anderson v. Creighton, 483 U.S. 635, 640

(1987). We must therefore focus more narrowly on whether, at the time of

Cuginiʹs arrest, clearly established law required an officer to respond to a

complaint by a person under arrest where, as here, that person exhibited only

non‐verbal aural and physical manifestations of her discomfort.

          We conclude that at the time of the plaintiffʹs arrest, there was no such

clearly established law. It remained an open question in this Circuit whether a

plaintiff asserting an excessive force claim was required to show evidence that an



9See al‐Kidd, 563 U.S. at 746 (noting that consensus of cases of persuasive authority may
create clearly established law); Scott v. Fischer, 616 F.3d 100, 105 (2d Cir. 2010) (noting
that even where this court has ʺnot explicitly held a law or course of conduct to be
unconstitutional, the unconstitutionality of that law or course of conduct will
nonetheless be treated as clearly established if decisions by this or other courts clearly
foreshadow a particular ruling on the issue, even if those decisions come from courts in
other circuitsʺ) (citation and internal quotation marks omitted).

                                            26
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                                                             Cugini v. City of New York, Palazzola

officer was made reasonably aware of her pain by means of an explicit verbal

complaint. And our limited case law on the subject appeared to look to the

presence or absence of such a complaint as a significant factor, if not a

prerequisite to liability, in our Fourth Amendment analysis. See Shamir, 804 F.3d

at 555, 557 (inferring a handcuffing‐based excessive force claim from a complaint

where the complaint alleged that the plaintiff did make verbal complaints,

repeatedly asked that the handcuffs be loosened, complained that the handcuffs

were ʺreally tightʺ and ʺreally hurt,ʺ and showed police officers his ʺreally

discolored,ʺ ʺreally swollenʺ hands); cf. Arroyo v. City of New York, 683 F. Appʹx

73, 75 (2d Cir. 2017) (summary order) (affirming grant of summary judgment for

defendants on handcuffing‐based excessive force claim where plaintiff ʺalleged

no physical injury and never asked for the handcuffs to be removedʺ). Similarly,

there was no such consensus in federal circuits outside ours whether a verbal

complaint was necessary, so we need not—we cannot—come to a conclusion as

to the consequences of any such consensus had indeed there been one.10



10Some circuit courts required that a plaintiff make a formal complaint to establish an
excessive force claim. See Lyons, 417 F.3d at 575‐76 (ʺIn order to reach a jury on [an
excessive force] claim, the plaintiff . . . must show that officers ignored plaintiffʹs
complaints that the handcuffs were too tightʺ); Rodriguez v. Farrell, 294 F.3d 1276, 1279



                                            27
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                                                              Cugini v. City of New York, Palazzola

       Before today, then, the law at least left room for reasonable debate as to

whether the plaintiff was required to alert the defendant to her pain, and, if so,

whether her non‐verbal behavior was sufficient to do so. Lennon, 66 F.3d at 421.

Although the plaintiff has persuasively argued that the defendant used undue

force in handcuffing her, a reasonable officer under these circumstances could

have concluded at the time of her arrest that he was not required to respond to her

non‐verbal indications of discomfort and pain. We therefore conclude that the

plaintiff has failed to establish that the defendant violated a clearly established

constitutional right and that the district court therefore correctly granted the

defendantsʹ motion for summary judgment on that basis.11 We also conclude,

however, that officers can no longer claim, as the defendant did here, that they

are immune from liability for using plainly unreasonable force in handcuffing a




n.4 (11th Cir. 2002) (tight handcuffing claim failed where plaintiff ʺmoaned or gruntedʺ
in pain while in transport to the police station but never asked officer to adjust his
handcuffs). Others, as discussed above, permitted an excessive force claim to reach a
jury, so long as the officer was otherwise made aware that the handcuffs of the person
under arrest were too tight. See Stainback, 569 F.3d at 772; Cortez, 478 F.3d at 1129; Liiv,
130 F. Appʹx at 852.

 Because we conclude that the plaintiffʹs federal law claim was properly dismissed, we
11

decline to reinstate her state law claims against the City.




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                                                           Cugini v. City of New York, Palazzola

person or using force that they should know is unreasonable based on the

arresteeʹs manifestation of signs of distress on the grounds that the law is not

ʺclearly established.ʺ12




12We acknowledge the presence of an ʺelephant in the room.ʺ The plaintiff testified
that, at the time of her arrest, she and Palazzola already had a hostile personal
relationship. Cugini further testified that there had been a months‐long ʺintimateʺ
relationship between her daughter and Palazzola that ended when Palazzola treated
her violently. Cugini Dep. 37‐38, J. App. 79‐80. Palazzolaʹs mother and the plaintiffʹs
estranged sister—the woman who filed the current complaint against the plaintiff—
were friends. And shortly before Cuginiʹs arrest, Palazzola trespassed on her property
while shouting her daughterʹs name. Cugini further testified that when she arrived at
Central Booking, Palazzola, for no apparent reason, removed her prescription glasses
while she was on the steps outside the precinct. Id. at 22, J. App. 64. She could barely
see without them. Id. After another officer, observing the encounter, reprimanded
Palazzola for doing so, he returned Cuginiʹs glasses to her. Id. at 23, J. App. 65.
Palazzola testified to the contrary that he never had a romantic relationship with
Cuginiʹs daughter; was unaware of his motherʹs relationship with Cuginiʹs sister; and
conducted only regular ʺhome visitsʺ to Cuginiʹs dwelling prior to her arrest, during
which he had a cordial conversation with her daughter. Palazzola Dep. June 2, 2016, 7,
53‐56, J. App. 269, 316‐18.

These serious, even tawdry, accusations and denials seem a far cry from those that may
be expected to emerge in a typical confrontation between a law enforcement official and
a person whom he is seeking to restrain. But their truth or falsity does not ultimately
affect the outcome of this appeal. As we have explained, the subjective aspects of the
defendantʹs behavior, his ʺunderlying intent or motivation,ʺ do not matter for purposes
of assessing whether his behavior violated the plaintiffʹs Fourth Amendment rights.
Graham, 490 U.S. at 397. We therefore conclude, as indeed the plaintiff has effectively
conceded in her presentation of this case on appeal, that they are not relevant to our
legal assessment of the defendantʹs conduct.


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                                                       Cugini v. City of New York, Palazzola

                                 CONCLUSION

      While we recognize that the plaintiff has sufficiently demonstrated, for

purposes of surviving a motion for summary judgment, a violation of her

constitutional right to be free from excessive force during handcuffing, we

conclude that she has failed to establish that the defendant violated law that was

clearly established at the time of her arrest. The defendant was therefore entitled

to the protection of qualified immunity. Because we conclude that the plaintiffʹs

federal law claim was properly dismissed, we decline to reinstate her state law

claims. We have considered the partiesʹ remaining arguments on appeal and

conclude that they are without merit. The judgment of the district court is

therefore AFFIRMED.




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