                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-17-2004

Kopec v. Tate
Precedential or Non-Precedential: Precedential

Docket No. 02-4188




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                     PRECEDENTIAL           Walter F. Kawalec, III (argued)
                                            Marshall, Dennehey, Warner, Coleman
    UNITED STATES COURT OF                  & Goggin
           APPEALS                          200 Lake Drive East, Suite 300
     FOR THE THIRD CIRCUIT                  Cherry Hill, NJ 08002

                                               Attorneys for Appellee Officer
              No. 02-4188                      Tyrone Tate


          MICHAEL KOPEC,                          OPINION OF THE COURT

                            Appellant
                    v.
                                            GREENBERG, Circuit Judge.
     TYRONE TATE, OFFICER;
                                                      This matter comes on before this
   TOWNSHIP OF WHITEMARSH
                                            court on an appeal by plaintiff Michael
                                            Kopec (“Kopec”) from the district
                                            court’s order entered on October 22,
  Appeal from the United States District
                                            2002, granting summary judgment in
                  Court
                                            favor of defendant Officer Tyrone Tate
 for the Eastern District of Pennsylvania
                                            (“Officer Tate”) in this action principally
         (D.C. Civ. No. 02-00430)
                                            brought under 42 U.S.C. § 1983
   District Judge: Honorable J. Curtis
                                            (“section 1983"). For the reasons stated
                  Joyner
                                            herein, we hold, contrary to the district
                                            court, that Officer Tate is not entitled to
                                            qualified immunity on Kopec’s excessive
       Argued November 6, 2003
                                            force claim and therefore we will reverse
                                            the district court’s order granting
  BEFORE: MCKEE, SMITH, and
                                            summary judgment in his favor on that
GREENBERG, Circuit Judges
                                            basis.
        (Filed: March 17 2004 )


                                                       I. BACKGROUND
John J. Auritt (argued)
130 East State Street
                                                     In the evening of February 2,
Media, PA 19063
                                            2000, Kopec and his girlfriend, Pamela
                                            Smith (whom Kopec later married),
   Attorney for Appellant
                                            trespassed onto the frozen lake at the
                                            Sherry Lake Apartment Complex in
Joseph Santarone
Conshohocken (Whitemarsh Township),               behind his back.
Montgomery County, Pennsylvania.1
The lake, which was fenced off, was                        Within about ten seconds of
located on the property where Pamela              being handcuffed, Kopec began to lose
Smith (now Pamela Kopec) rented an                feeling in his right hand and, as a
apartment. To gain access to the lake             consequence, asked Officer Tate to
Kopec hopped over the fence and his               loosen the handcuffs, but Officer Tate
girlfriend squeezed through an opening            did not do so. Kopec then asked if “this
in it. The two then proceeded to frolic           is what he does when people don’t give
on the ice.2 Officer Tate, who then               him information.” Officer Tate did not
arrived in response to an anonymous call,         answer. A. 30.
directed them to get off the lake, and the
two complied.                                              Officer Tate took Kopec to his
                                                  police car several feet away and left him
         Although Officer Tate did not            alongside it as he went to interview
intend to charge them with trespassing,           Pamela Kopec, who was close by. As
he did seek to record their names,                Officer Tate walked away, Kopec told
addresses, and phone numbers for his              him the pain was unbearable and begged
report and he advised Kopec that he               him to loosen the handcuffs. Again,
needed this information for that purpose.         Officer Tate did not comply with
Kopec nevertheless refused to provide             Kopec’s request. Kopec began to faint
this information, though Officer Tate             from the pain caused by the handcuffs
repeatedly asked for it, and Kopec                and then fell to the ground. He asked
instructed his girlfriend not to do so            Officer Tate to remove the handcuffs
either. Officer Tate became annoyed               because he had lost feeling in his right
with Kopec and then arrested him for              hand. Officer Tate said “I will be there
disorderly conduct, and handcuffed him            in a minute,” and did not go to Kopec
                                                  immediately. A. 31. Kopec asked him
                                                  again either to loosen or remove the
  1
    On this appeal from an order granting         handcuffs while Kopec was groaning due
summary judgment against him we are               to excruciating pain. Officer Tate heard
stating the facts from Kopec’s                    Kopec, but took no steps to assist him.
perspective. At trial the events may              According to Kopec, it took Officer Tate
appear in a different light.                      about ten minutes from the time he had
                                                  handcuffed Kopec finally to loosen the
  2
   Kopec in his brief indicates that he
and his girlfriend “were frolicking on the
ice” and thus the characterization of their
conduct is his. Brief of Appellant at 4.

                                              2
handcuffs. 3 Kopec claims to have               court’s order but only with respect to his
permanent nerve damage in his right             Fourth Amendment claim.5
wrist as a result of the handcuffing, for
which a hand surgeon treated him for
                                                  4
over one year.                                      (...continued)
                                                judgment on an uncontested motion but
         Kopec concedes that he was             Kopec has not appealed from this
trespassing in violation of 18 Pa. Cons.        disposition and thus the township is out
Stat. Ann. § 3503(b)(1)(iii) (West Supp.        of the case.
2003) and that Officer Tate lawfully was
                                                  5
able to arrest and handcuff him.                    Kopec has waived any challenge to
Nevertheless Kopec subsequently                 the district court’s ruling with regard to
brought this action against Officer Tate,       his state law claims as in his brief he
alleging that the officer’s acts violated       merely makes passing reference to these
section 1983 and were tortious under            claims, stating that “[p]laintiff has also
Pennsylvania law.                               made a state tort claim pertaining to
                                                these circumstances” and “Officer Tate’s
          On Officer Tate’s motion the          conduct is actionable as a state tort under
district court granted summary judgment         42 Pa. C.S.A. § 8542.” See Brief of
in his favor on the basis that he had           Appellant at 9, 11. Kopec’s failure
qualified immunity on claims Kopec              sufficiently to raise this issue waives it
asserted under section 1983 predicated          on this appeal. See Laborers’ Int’l Union
on the First, Fourth and Fourteenth             v. Foster Wheeler Corp., 26 F.3d 375,
Amendments and that claims Kopec                398 (3d Cir. 1994) (“An issue is waived
advanced under the Pennsylvania Tort            unless a party raises it in its opening
Claims Act charging intentional, willful        brief, and for those purposes a passing
misconduct and intentional infliction of        reference to an issue . . . will not suffice
emotional distress were barred by the           to bring that issue before this court.”)
immunity provisions of that act in 42 Pa.       (citations and internal quotation marks
Cons. Stat. Ann. §§ 8541 and 8545 (West         omitted).
1998). 4 Kopec appeals from the district
                                                        Moreover, although he included a
                                                First Amendment argument in his brief,
  3
   Officer Tate recalls the period as           Kopec informed us at oral argument that
being between four and eight minutes.           he had abandoned that argument because
                                                his action properly was characterized as a
  4
  Kopec also sued the Township of               Fourth Amendment excessive force
Whitemarsh which obtained a summary             claim. Thus, the only remaining issue on
                         (continued...)                                     (continued...)

                                            3
                                                 law." Fed. R. Civ. P. 56(c). In
                                                 reviewing the record, we are required to
II. JURISDICTION AND STANDARD                    view the inferences to be drawn from the
           OF REVIEW                             underlying facts in the light most
                                                 favorable to Kopec, as the party
        A. Jurisdiction                          opposing the motion, and to take his
                                                 allegations as true when supported by
          The district court had                 proper proofs whenever these allegations
jurisdiction pursuant to 28 U.S.C. §§            conflict with those of Officer Tate. See
1331, 1343, and 1367 in that the                 Meritcare, Inc. v. St. Paul Mercury Ins.
complaint alleged federal civil rights           Co., 166 F.3d 214, 223 (3d Cir. 1999).
claims under 42 U.S.C. § 1983 and
supplemental state law claims. Inasmuch
as Kopec’s appeal was timely we have
jurisdiction pursuant to 28 U.S.C. §                        III. DISCUSSION
1291.
                                                         A. Qualified Immunity on a
        B. Standard of Review                    Section 1983 Claim

          We exercise de novo review of                  42 U.S.C. § 1983 provides:
the district court’s grant of summary
judgment. See Kneipp v. Tedder, 95                       Every person who,
F.3d 1199, 1204 (3d Cir. 1996); Mark v.                  under color of any
Borough of Hatboro, 51 F.3d 1137, 1141                   statute, ordinance,
(3d Cir. 1995). Summary judgment is                      regulation, custom, or
proper when the evidence shows "that                     usage, of any State or
there is no genuine issue as to any                      Territory or the District
material fact and that the moving party is               of Columbia, subjects,
entitled to a judgment as a matter of                    or causes to be
                                                         subjected, any citizen of
                                                         the United States or
  5
   (...continued)                                        other person within the
appeal is whether the district court                     jurisdiction thereof to
properly granted summary judgment on                     the deprivation of any
Kopec’s Fourth Amendment claim                           rights, privileges, or
against Officer Tate.                                    immunities secured by
                                                         the Constitution and
                                                         laws, shall be liable to


                                             4
        the party injured in an                  in the light most favorable to the
        action at law, suit in                   plaintiff, show that the officer’s conduct
        equity, or other proper                  violated a constitutional right. See id. at
        proceeding for redress. .                201, 121 S.Ct. at 2156; S.G. ex rel. A.G.
        ..                                       v. Sayreville Bd. of Educ., 333 F.3d 417,
                                                 420 (3d Cir. 2003) (When an individual
                                                 defendant in a section 1983 action claims
                                                 he is entitled to qualified immunity, “our
Thus, section 1983 provides a remedy for         first task is to assess whether the
deprivations of rights established               plaintiff’s allegations are sufficient to
elsewhere in the Constitution or federal         establish the violation of a constitutional
laws. Estate of Smith v. Marasco, 318            or statutory right at all.”) (quoting
F.3d 497, 505 (3d Cir. 2003); Kneipp, 95         Gruenke v. Seip, 225 F.3d 290, 298 (3d
F.3d at 1204.                                    Cir. 2000)). “If the plaintiff fails to
                                                 make out a constitutional violation, the
         Qualified immunity is intended          qualified immunity inquiry is at an end;
to shield government officials                   the officer is entitled to immunity.”
performing discretionary functions,              Bennett v. Murphy, 274 F.3d 133, 136
including police officers, “from liability       (3d Cir. 2002).
from civil damages insofar as their
conduct does not violate clearly                           If, however, “a violation could
established statutory or constitutional          be made out on a favorable view of the
rights of which a reasonable person              parties’ submissions, the next sequential
would have known.” Harlow v.                     step is to ask whether the right was
Fitzgerald, 457 U.S. 800, 818, 102 S.Ct.         clearly established.” Saucier, 533 U.S. at
2727, 2738 (1982). A defendant has the           201, 121 S.Ct. at 2156. “The relevant
burden to establish that he is entitled to       dispositive inquiry” in making this
qualified immunity. See Beers-Capitol v.         determination is “whether it would be
Whetzel, 256 F.3d 120, 142 n.15 (3d Cir.         clear to a reasonable officer that his
2001).                                           conduct was unlawful in the situation he
                                                 confronted.” Id. at 202, 121 S.Ct. at
          The Supreme Court held in              2156. If it would not have been clear to
Saucier v. Katz, 533 U.S. 194, 121 S.Ct.         a reasonable officer what the law
2151 (2001), that a ruling on qualified          required under the facts alleged, then he
immunity must be undertaken using a              is entitled to qualified immunity.
two-step inquiry. See id. at 200-01, 121
S.Ct. at 2155-56. First, the court must                   B. Excessive Force
consider whether the facts alleged, taken


                                             5
          Our first inquiry on Officer            officers or others, and whether he
Tate’s claim of qualified immunity is             actively is resisting arrest or attempting
whether the facts Kopec asserts, taken in         to evade arrest by flight. See Graham,
the light most favorable to him, show             490 U.S. at 396, 109 S.Ct. at 1872. A
that Officer Tate violated Kopec’s Fourth         court in making a reasonableness
Amendment rights. “To state a claim for           assessment also may consider the
excessive force as an unreasonable                possibility that the persons subject to the
seizure under the Fourth Amendment, a             police action are violent or dangerous,
plaintiff must show that a ‘seizure’              the duration of the action, whether the
occurred and that it was unreasonable.”           action takes place in the context of
Estate of Smith, 318 F.3d at 515 (quoting         effecting an arrest, the possibility that the
Abraham v. Raso, 183 F.3d 279, 288 (3d            suspect may be armed, and the number of
Cir. 1999)). Here, Officer Tate does not          persons with whom the police officers
asssert that Kopec’s arrest did not               must contend at one time. See Sharrar v.
constitute a “seizure.” Thus, the only            Felsing, 128 F.3d 810, 822 (3d Cir.
issue on this inquiry is whether the force        1997). As the Supreme Court has stated,
Officer Tate used to effect that seizure
was reasonable.                                            [t]he ‘reasonableness’
                                                           of a particular use of
           The test of reasonableness under                force must be judged
the Fourth Amendment is whether under                      from the perspective of
the totality of the circumstances, “the                    a reasonable officer on
officers’ actions are ‘objectively                         the scene, rather than
reasonable’ in light of the facts and                      with the 20/20 vision of
circumstances confronting them, without                    hindsight. . . . The
regard to their underlying intent or                       calculus of
motivations.” Graham v. Connor, 490                        reasonableness must
U.S. 386, 397, 109 S.Ct. 1865, 1872                        embody allowance for
(1989). Thus, if a use of force is                         the fact that police
objectively reasonable, an officer’s good                  officers are often forced
faith is irrelevant and any bad faith                      to make split-second
motivation on his part is immaterial. See                  judgments – in
Estate of Smith, 318 F.3d at 515;                          circumstances that are
Abraham, 183 F.3d at 289. Factors to                       tense, uncertain, and
consider in making a determination of                      rapidly evolving –
reasonableness include the severity of the                 about the amount of
crime at issue, whether the suspect poses                  force that is necessary
an immediate threat to the safety of the                   in a particular situation.


                                              6
Graham, 490 U.S. at 396-97, 109 S.Ct. at          the extent to ascertain if the handcuffs
1872. “[R]easonableness under the                 were too tight. Officer Tate was not,
Fourth Amendment should frequently                after all, in the midst of a dangerous
remain a question for the jury,”                  situation involving a serious crime or
Abraham, 183 F.3d at 290; however,                armed criminals. Accordingly, this
“‘defendants can still win on summary             opinion should not be overread as we do
judgment if the district court concludes,         not intend to open the floodgates to a
after resolving all factual disputes in           torrent of handcuff claims. Thus, if
favor of the plaintiff, that the officer’s        Officer Tate had been engaged in
use of force was objectively reasonable           apprehending other persons or other
under the circumstances,’” id. (quoting           imperative matters when Kopec asked
Scott v. Henrich, 39 F.3d 912, 915 (9th           him to loosen the handcuffs our result
Cir. 1994)); see also Estate of Smith, 318        might have been different.
F.3d at 516.
                                                            With respect to the second
          Kopec alleges that Officer Tate         inquiry on qualified immunity, it cannot
placed handcuffs on him that were                 be said as a matter of law that a
excessively tight and failed to respond to        reasonable officer would not have known
Kopec’s repeated requests for them to be          that this conduct was in violation of the
loosened. He estimates that it took               Fourth Amendment even though it
Officer Tate ten minutes to loosen the            appears that neither the Supreme Court
handcuffs despite the severe pain they            nor this court has ruled that a police
were causing and his efforts to secure            officer may be using constitutionally
their release. As a result, Kopec claims          excessive force in tightening handcuffs. 6
that he suffered permanent nerve damage
to his right wrist. These facts, if
                                                    6
credited, would establish that Officer                Neither party cites a case from the
Tate’s use of force was excessive in              Supreme Court or this court directly
violation of the Fourth Amendment.                addressing the issue. Indeed, Kopec in
                                                  his brief indicates that he “has not found
          In reaching our conclusion that         a case from the Third Circuit that
Kopec has asserted facts that if proven           discusses excessively tight handcuffs at
would establish that there had been a             the inception of an arrest or when a
violation of his constitutional rights, we        police officer purposefully left
point out that Officer Tate faced rather          excessively tight handcuffs on a suspect
benign circumstances that hardly                  over time,” brief of Appellant at 12, and
justified his failure to respond more             Officer Tate in his brief states that “at the
promptly to Kopec’s entreaties, at least to       time of the plaintiff’s arrest, it is
                                                                                 (continued...)

                                              7
The Court of Appeals for the Ninth                liability-free violation of a constitutional
Circuit has noted that at least as early as       or statutory requirement.” Therefore, we
1985 the use of excessive force by                hold that the right of an arrestee to be
officers in effecting an arrest was clearly       free from the use of excessive force in
proscribed by the Fourth Amendment as             the course of his handcuffing clearly was
it held, quoting a 1985 Supreme Court             established when Officer Tate acted in
opinion, that “the Fourth Amendment               this case, and that a reasonable officer
governs not only whether a person or              would have known that employing
thing is subject to a ‘seizure,’ but also         excessive force in the course of
‘the manner in which a . . . seizure is           handcuffing would violate the Fourth
conducted.’” Palmer v. Sanderson, 9               Amendment. Accordingly, the district
F.3d 1433, 1436 (9th Cir. 1993) (quoting          court committed error in granting
Tennessee v. Garner, 471 U.S. 1, 7-8,             summary judgment in favor of Officer
105 S.Ct. 1694, 1699 (1985)).                     Tate on the basis of his qualified
Moreover, as we observed in Burns v.              immunity defense.
County of Cambria, 971 F.2d 1015, 1024
(3d Cir. 1992), “[t]his court has adopted                   In reaching our result we point
a broad view of what constitutes an               out that other courts of appeals have
established right of which a reasonable           made determinations consistent with
person would have known.” (citations              ours. See, e.g., Martin v. Heideman, 106
and quotation marks omitted). Thus, in            F.3d 1308, 1312 (6th Cir. 1997)
People of Three Mile Island v. Nuclear            (reversing grant of directed verdict in
Regulatory Comm’rs, 747 F.2d 139, 144-            favor of arresting officer in a section
45 (3d Cir. 1984), we held that there does        1983 action alleging excessive force due
not have to be “precise factual                   to overly-tight handcuffs); Alexander v.
correspondence” between the case at               County of Los Angeles, 64 F.3d 1315,
issue and a previous case in order for a          1322-23 (9th Cir. 1995) (reversing grant
right to be “clearly established,” and we         of summary judgment in favor of officers
would not be “faithful to the purposes of         on qualified immunity and holding that
immunity by permitting . . . officials one        fact issue existed as to whether officers
                                                  used excessive force in refusing to
                                                  loosen plaintiff’s handcuffs); Palmer, 9
  6
   (...continued)                                 F.3d at 1436 (9th Cir. 1993) (affirming
apparent that there was no law in this            denial of summary judgment on qualified
Circuit specifically relating to tight            immunity where deputy allegedly
handcuffing, and more specifically, as it         employed excessive force by handcuffing
relates to the issue of the constitutional        plaintiff so tightly that he was in pain and
implication of loosening tight
handcuffing.” Brief of Appellee at 17.

                                              8
was left bruised for several weeks).7              this opinion.



           IV. CONCLUSION
         For the foregoing reasons, we
will reverse the order of the district court
entered on October 22, 2002, and remand
the case for proceedings consistent with


  7
    This case is distinguishable from
Hannula v. City of Lakewood, 907 F.2d
129, 132 (10th Cir. 1990), in which the
Court of Appeals for the Tenth Circuit
analyzed an excessive handcuffing claim
under a substantive due process
standard, rather than the Fourth
Amendment reasonableness standard, to
conclude that the failure to loosen tight
handcuffs did not rise to a clearly
established constitutional violation. The
court noted that the amount of force used
was not substantial, the extent of the
injury was minimal, and the evidence
failed to establish malice. Likewise,
Glenn v. City of Tyler, 242 F.3d 307,
314 (5th Cir. 2001), is distinguishable in
that the plaintiff there failed to show
more than a de minimis injury resulting
from her tight handcuffing. Where, as
here, a plaintiff alleges actual injury
inflicted by a police officer in the course
of an arrest, and supports his allegation
with specific facts so that it cannot be
said as a matter of law that the use of
force was objectively reasonable, the
issue of whether excessive force was
employed must be left to the trier of fact.

                                               9
Kopec      v.   Tate ,    No.     0 2 - 4 1 8 8.        only relies on the broad proposition that
                                                        the Fourth Amendment secures the right to
                                                        be free from the use of excessive force
SMITH, Circuit Judge, Dissenting:
                                                        during an arrest, and concludes that
         I respectfully dissent from the                Officer Tate violated this clearly
majority opinion because I believe that the             established right. This analysis is flawed,
facts, even when viewed in the light most               in my view, because it fails to determine
favorable to Kopec, fail to demonstrate                 what the contours of the right were, and
that Officer Tate deprived Kopec of the                 neglects to recognize that the law did not
protections of the Fourth Amendment right               provide Officer Tate with fair warning that
to be free from the use of excessive force              he was required to respond more promptly
during an arrest. Caselaw establishes that              than he did to Kopec’s complaint that the
tight handcuffing alone is insufficient to              handcuffs were too tight.
state a claim of excessive force. E.g.
                                                                I would, therefore, affirm the
Burchett v. Kiefer, 310 F.3d 937, 944-45
                                                        District Court’s grant of summary
(6th Cir. 2002).        A plaintiff must
                                                        judgment in favor of Officer Tate.
demonstrate not only that the officer had
notice that the force applied by the                                          I.
handcuffs was excessive under the
                                                                   As the Supreme Court instructed
circumstances, but also that the officer
                                                        in Saucier, 533 U.S. at 201, the first
failed to respond to such notice in a
                                                        inquiry in deciding whether qualified
reasonable manner. Id. Here, once
                                                        immunity is available is whether there was
Officer Tate had received notice that the
                                                        a violation of a constitutional right. See
force applied by the cuffs may have been
                                                        also Siegert v. Gilley, 500 U.S. 226, 231-
excessive, he responded reasonably under
                                                        33 (1991). When an excessive force claim
the circumstances.
                                                        arises in the context of an arrest, it must be
          Yet even if the facts were                    “analyzed under the Fourth Amendment
sufficient to state a claim of excessive                and its ‘reasonableness’ standard.”
force, I would still be in dissent because I            Graham v. Connor, 490 U.S. 386, 395
believe that Officer Tate should be entitled            (1989); see also Tennessee v. Garner, 471
to qualified immunity.         The Supreme              U.S. 1, 8 (1985) (applying Fourth
Court has repeatedly instructed that the                Amendment’s reasonableness standard to
determination of qualified immunity                     § 1983 excessive use of force claim and
requires particularizing the constitutional             declaring that one of the factors to be
right “in light of the specific context of the          considered is “how [a seizure] is carried
case.” Saucier v. Katz, 533 U.S. 194, 201               out”). The Supreme Court has recognized
(2001). This is where I believe the                     that the right to make an arrest “carries
majority’s analysis falls short, because it             with it the right to use some degree of

                                                   10
physical coercion or threat thereof to effect                  In some circumstances, however,
it,” and that “‘[n]ot every push or shove’”          tight handcuffing may give rise to a Fourth
violates the Fourth Amendment. Graham,               Amendment violation. See Herzog v.
490 U.S. at 396 (quoting Johnson v. Glick,           Village of Winnetka, 309 F.3d 1041, 1043
481 F.2d 1028, 1033 (2d Cir. 1973)). The             (7th Cir. 2002) (concluding that summary
Graham Court instructed that careful                 judgment was improperly granted in favor
attention must be given to “the facts and            of the officers where plaintiff was arrested
circumstances of each particular case” and           without probable cause and handcuffed for
that the reasonableness of “a particular use         an hour despite complaints that the cuffs
of force must be judged from the                     were too tight). In determining whether
perspective of a reasonable officer on the           Kopec was deprived of his Fourth
scene, rather than with the 20/20 vision of          Amendment right to be free from the use
hindsight.” 490 U.S. at 396.                         of excessive force, it is instructive to
                                                     review the caselaw in which the facts have
         Similarly, not every instance of
                                                     been sufficient to state a claim. These
tight handcuffing offends the Fourth
                                                     cases demonstrate that a viable excessive
Amendment’s right to be free from the use
                                                     force claim requires that the officer or
of excessive force during an arrest.
                                                     officers had either constructive or actual
Indeed, several of our sister circuits have
                                                     notice that the force applied by the
recognized as much 8

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

                                                11
handcuffs was excessive under the                             For example, in Palmer v.
circumstances, yet the officer or officers           Sanderson, 9 F.3d 1433 (9th Cir. 1993),
failed to respond to such notice in a                one of the earliest tight handcuffing cases,
reasonable manner.9                                  the plaintiff’s complaints that the
                                                     handcuffs were too tight and painful
                                                     provided the officer with constructive
  9
    See Kukla v. Hulm, 310 F.3d 1046                 notice that the force used might have been
(8th Cir. 2002); Bastien v. Goddard, 279             excessive under the circumstances.
F.3d 10, 12-13 (1st Cir. 2002) (reversing            Despite this notice, the officer refused to
judgment for officer based on tight                  loosen the handcuffs. Id. at 1436. The
handcuffing for more than four hours                 Court concluded that “[u]nder these
despite plaintiff’s repeated complaints);            circumstances no reasonable officer could
Kostrzewa v. City of Troy, 247 F.3d 633,             believe that the abusive application of
639-40 (6th Cir. 2001) (officer                      cuffs was constitutional.” Id.
documented that he had been able to
tighten the cuffs to only the first tooth                      Although the Ninth Circuit’s
because the plaintiff had large wrists, yet          decision in Palmer did not actually use the
he ignored plaintiff’s persistent                    term “notice” in determining that the facts
complaints that the cuffs were too small             were sufficient to state a Fourth
and tight until after the plaintiff was              Amendment violation, substantively its
booked); Heitschmidt v. City of Houston,             analysis focused on that very issue.
161 F.3d 834, 839-40 (5th Cir. 1998)                 Thereafter, a number of circuit courts
(reversing summary judgment for                      employed this same analysis, again without
officers who ignored repeated complaints             discussing the principle of notice, and
over a four-hour period and pointing out             concluded that there were sufficient facts
that the officers had no justification for           to state an excessive force claim where the
refusing to adjust the painful cuffs);               plaintiff’s complaints about painful and
Martin v. Heideman, 106 F.3d 1308,                   overly tight handcuffing were ignored by
1310, 1313 (6th Cir. 1997) (plaintiff’s              the arresting officers. See Herzog, 309
complaints that his hands were becoming              F.3d at 1043; supra n.2.
numb and swollen and the officer’s                            The importance of the notice
failure to adjust the handcuffs were                 effected by a plaintiff’s complaints that
sufficient to state a Fourth Amendment
claim); Alexander v. County of Los
                                                       9
Angeles, 64 F.3d 1315, 1323 (9th Cir.                   (...continued)
1995) (officer failed to adjust handcuffs            condition necessitated adjusting the
even though plaintiff complained of pain,            handcuffs, and the officer noted that the
alerted the officer that his medical                 plaintiff’s wrists were “mushy” when he
                               (continued...)        applied the cuffs).

                                                12
handcuffs are too tight and painful was               by removing the cuffs, the Court
demonstrated in Burchett, 310 F.3d at 937.            concluded that there was no violation of
There, the plaintiff, who had been                    the plaintiff’s Fourth Amendment right.
handcuffed for three hours in a police
                                                                          II.
cruiser, showed his family that his hands
were swollen and blue. Id. at 941. The                          In determining whether the record
family, in turn, pointed this out to the              in this case presents facts sufficient to
officers, who agreed to release the plaintiff         demonstrate a claim of excessive force, I
if he promised to behave. After the                   consider those facts, as the majority also
plaintiff agreed, the cuffs were released.            has, in the light most favorable to Kopec.
Id. Thereafter, plaintiff claimed that the            See Saucier, 533 U.S. at 201 (instructing
officers had violated his civil rights by             courts to consider threshold question of
using excessive force. The Sixth Circuit              whether there is a constitutional violation
disagreed.                                            in the light most favorable to the injured
                                                      party). Accordingly, I rely upon Kopec’s
          The Burchett Court recognized
                                                      account of events. I set forth the facts
that “applying handcuffs so tightly that the
                                                      separately here so that, consistent with
detainee’s hands become numb and turn
                                                      Graham, they may be analyzed from the
blue certainly raises concerns of excessive
                                                      perspective of a reasonable officer on the
force.” Id. at 944. Furthermore, the Court
                                                      scene. Graham, 490 U.S. at 396.
acknowledged that its own precedents
allowed a plaintiff to get to a jury by                        It is undisputed that Officer Tate
showing that “officers handcuffed the                 apprehended Kopec and Smith while they
plaintiff excessively and unnecessarily               were trespassing on private property
tightly and ignored the plaintiff’s pleas             around 11 p.m. on a cold, snowy night.
that the handcuffs were too tight.” Id. at            Thus, he had probable cause to arrest
944-45 (citing Kostrzewa, 247 F.3d at 641,            them. Officer Tate advised Kopec and
and Heideman, 106 F.3d at 1310, 1313).                Smith, however, that “he was going to let
Unlike other cases presenting a                       [them] go and it was no big deal and that
constitutional violation, the Court                   he needed [their] names and addresses” to
explained, the record gave “no indication             fill out a report. Kopec inexplicably
that [plaintiff] had previously complained            refused to cooperate with this simple
or advised the officers that the handcuffs            request. Officer Tate then explained why
were too tight. . . . Until [the officers] had        he needed the information. Kopec still
notice that the handcuffs were too tight,             refused to provide any information to
the officers were unaware of the problem.”            Officer Tate, prompting the officer to
Burchett, 310 F.3d at 945 (emphasis                   advise the pair that they were “not in
added).      Because the officers had                 trouble and that it was just procedure.”
responded to the plaintiff’s lone complaint           Kopec was unmoved. Officer Tate then

                                                 13
arrested and handcuffed Kopec.                          could     take    the
                                                        handcuff[s] off and
        According to Kopec, the officer
                                                        again asked if this is
        placed the cuffs on me.                         what he did to get
        We were about 30 feet                           information out from
        from his cruiser. Put the                       people.
        cuffs on behind my back
                                               The officer proceeded to interview Smith.
        and we started to walk
                                               Kopec fell to his knees and groaned: “Get
        towards his cruiser.
                                               the cuffs off, I can’t feel my hand.” Kopec
                     And in a                  then stated that the pain was “unbearable.”
        very short time, within                Officer Tate acknowledged the complaint
        about ten seconds, I                   and informed Kopec that he would “be
        began to lose feeling in               there in a minute.” Kopec groaned again:
        my right hand. And I                   “Get these cuffs off, I can’t feel anything
        asked if he could loosen               right now.”         Officer Tate stopped
        the handcuff, that it was              interviewing Smith, returned to the cruiser,
        too tight.     And we                  and assisted Kopec up off the ground. In
        continued wa lking                     order to assess the restrictiveness of the
        towards the cruiser and I              cuffs, Officer Tate escorted Kopec to the
        asked him if this is what              rear of the cruiser and laid him on the
        he does when people                    trunk to view the restraints. Officer Tate
        don’t      give him                    asked him if it was permissible to remove
        information.                           Kopec’s gloves. After Kopec assented,
                                               Tate loosened the cuffs.
                 ***
                                                         Kopec’s initial statement to
        He ignored me. We got
                                               Officer Tate did not communicate
        to the cruiser, to the
                                               anything more than a complaint about
        back door, and he spun
                                               tightness. From the perspective of a
        me, turned me around so
                                               reasonable officer, it would not have been
        that my back was facing
                                               unusual for an arrestee to initially request
        the back door. And he
                                               that the cuffs be adjusted or loosened.
        proceeded to walk back
                                               Handcuffs, by their very nature, are
        to Pam the 30 feet.
                                               restrictive, uncomfortable, and unfamiliar
                  And I asked                  to most individuals. Although Kopec
        him again. The pain                    affirmed during his deposition that he
        became unbearable to                   experienced a loss of feeling within about
        me and I asked him if                  ten seconds of being cuffed, careful


                                          14
reading of his testimony reveals that he did        When Kopec groaned again and demanded
not express this to Officer Tate.                   that Officer Tate remove the cuffs because
                                                    he was unable to feel his hand, Officer
          Kopec’s second request to have
                                                    Tate interrupted his interview of Smith and
the cuffs removed was also devoid of any
                                                    returned to Kopec’s side to evaluate the
suggestion that the cuffs were too
                                                    cuffs.
restrictive or were causing him pain.
Although Kopec testified to the effect that                  Viewed from the perspective of a
he experienced unbearable pain, he did not          reasonable officer, Tate’s conduct was not,
advise Officer Tate of that fact. Rather,           in my view, unreasonable.         He was
Kopec testified that he “asked him if he            constitutionally permitted to apply some
could take the handcuff[s] off and again            force in arresting Kopec. After receiving
asked if this is what he did to get                 notice that the force applied by the cuffs
information out from people.” From a                may have been excessive, Officer Tate
reasonable officer’s viewpoint, this second         responded reasonably.
request to remove the cuffs, together with
                                                             I acknowledge that there was a
the repeated inquiry about Officer Tate’s
                                                    brief delay in responding to Kopec’s
tactics for obtaining information, could
                                                    complaints. That delay, however, was not
reasonably be viewed as theatrics by
                                                    unreasonable in the absence of any
Kopec protesting his arrest and the
                                                    indication of pain or suffering in Kopec’s
application of handcuffs.
                                                    initial statements that would have
              When Kopec fell to the ground,        conveyed to Tate that the force was
groaned, and stated that he could not feel          excessive under the circumstances. Once
his hand, Officer Tate was, for the first           Kopec fell to the ground and demanded the
time, put on notice that the force applied          removal of the cuffs claiming a lack of
by the cuffs may have been excessive. In            feeling in his hand, Officer Tate advised
light of Kopec’s earlier conduct, a                 that he would “be there in a minute” and
reasonable officer would have had reason            responded within a reasonable period of
to question the genuineness of this                 time.
complaint. Because this complaint may
                                                             In my view, the totality of the
have been theatrics and because Officer
                                                    circumstances considered by the majority
Tate was legitimately engaged in
                                                    has not adequately taken into account the
i n t e rv i e wing S mith, it w as not
                                                    fact that there was only one officer at the
unreasonable for Officer Tate to proceed
                                                    scene, and that he was occupied with
with the task in which he was already
                                                    another task that was a legitimate police
engaged. Indeed, interviewing Smith was
                                                    duty. In explaining its assessment of the
necessary because of Kopec’s refusal to
                                                    attendant circumstances, the majority
provide any information whatsoever.
                                                    points out that Officer Tate “faced rather

                                               15
benign circumstances that hardly justified         right and determining the contours of that
his failure to respond more promptly to            right. See Saucier, 533 U.S. at 201-02
Kopec’s entreaties . . . . Officer Tate was        (discussing Anderson v. Creighton, 483
not, after all, in the midst of a dangerous        U.S. 635, 640 (1987)). In Saucier, the
situation involving a serious crime or             Supreme Court held that a “ruling on
armed criminals.” Slip op. at 7. I agree           qualified immunity requires an analysis not
that Officer Tate was not immediately              susceptible of fusion with the question
confronted with a dangerous situation. Yet         whether unreasonable force was used in
from the perspective of a reasonable               making the arrest.” 533 U.S. at 197.
officer, on the scene alone and dealing            Thus, the determination of whether there is
wit h two trespassers w ho we r e                  a constitutional violation is not co-
inexplicably unresponsive to his inquiries,        extensive with the issue of whether a
there was justification for the officer’s          government official is entitled to qualified
refusal to immediately indulge Kopec’s             immunity. For that reason, the Supreme
initial requests so that the interview with        Court laid out the now familiar framework
Smith might continue.                              for analyzing qualified immunity claims,
                                                   instructing that the first inquiry is whether
          In sum, I conclude that Kopec has
                                                   there is a constitutional violation. Id. at
failed to establish that there was a
                                                   200. If such a violation is demonstrated,
violation of his Fourth Amendment right
                                                   the next “step is to ask whether the right
to be free from the use of excessive force.
                                                   was clearly established.” Id. at 201. The
Ordinarily, in the absence of a
                                                   Supreme Court reiterated that this second
constitutional violation, “there is no
                                                   “inquiry, it is vital to note, must be
necessity for further inquiries concerning
                                                   undertaken in the light of the specific
qualified immunity.” Saucier, 533 U.S. at
                                                   context of the case, not as a broad general
201.     I address the issue of qualified
                                                   proposition.” Id. (emphasis added).
immunity only because I believe that, even
if there was sufficient evidence to                          Consistent with this iteration, the
demonstrate a constitutional violation,            Saucier Court observed that Graham’s
Officer Tate should be accorded qualified          general proposition that the use of
immunity.                                          excessive force is contrary to the Fourth
                                                   Amendment was not particularized enough
                                                   for the purpose of determining whether the
                   III.                            law was clearly established. 533 U.S. at
                                                   201-02. Quoting Anderson v. Creighton,
         The Suprem e Cou rt has
                                                   the Court emphasized that the “‘contours
repeatedly instruc ted th at the
                                                   of the right must be sufficiently clear,’”
determination of qualified immunity
                                                   and it instructed that
requires particularizing the constitutional


                                              16
         [t]he       relevant,                         inquiry. In the seminal case of Anderson,
         dispositive inquiry in                        the Supreme Court observed that the
         determining whether a                         determination of whether there is qualified
         right is clearly                              immunity “depends substantially upon the
         established is whether it                     level of generality at which the relevant
         would be clear to a                           ‘legal rule’ is to be identified.” 483 U.S.
         reasonable officer that                       at 639 (examining qualified immunity in
         his c on d u ct w as                          the context of a warrantless search). The
         unlawful in the situation                     Court recognized that if the test were
         he confronted. . . . If the                   applied at a general level, as I believe the
         law did not put the                           majority does here, then “[p]laintiffs
         officer on notice that his                    would be able to convert the rule of
         conduct would be clearly                      qualified immunity that our cases plainly
         unlaw ful, summar y                           establish into a rule of virtually
         judgment based on                             unqualified liability. . . .” Id. Whether a
         qualified immunity is                         legal rule is “clearly established,” the
         appropriate.                                  Court instructed, must be considered in a
Saucier, 533 U.S. at 202               (quoting                 more particularized, and
Anderson, 483 U.S. at 640).                                     hence, more relevant
                                                                sense: The contours of
          In Bennett v. Murphy, 274 F.3d
                                                                the right must b e
133, 136 (3d Cir. 2002), we observed that
                                                                sufficiently clear that a
the two- part test enunciated in Saucier
                                                                reasonable offic ial
“clarif[ied] the analysis to be undertaken
                                                                would understand that
by district courts and courts of appeals
                                                                what he is doing violates
considering claims of qualified immunity
                                                                that right. This is not to
in cases alleging excessive use of force.”
                                                                say an official action is
Although my colleagues have employed
                                                                protected by qualified
the two-part test set forth in Saucier, I do
                                                                immunity unless the very
not believe that their reliance on only the
                                                                action in question has
Fourth Amendment’s broad, general
                                                                previously been held
proscription against the use of excessive
                                                                unlawful, but it is to say
force is sufficient because it fails to take
                                                                that in the light of pre-
into account the situation confronting
                                                                e x i s ti n g law th e
Officer Tate.
                                                                unlawfulness must be
        S u p re m e Co urt qu alif ie d                        apparent.
immunity jurisprudence has long required
                                                       Id. (citations omitted) (emphasis added).
that courts undertake a particularized

                                                  17
         Subsequently, in Wilson v. Layne,                 established law and the
526 U.S. 603 (1999), the Supreme Court                     information the officers
concluded that allowing the media to ride                  possessed.
along during the execution of a search
                                                  526 U.S. at 615 (emphasis added)
warrant violated the Fourth Amendment.
                                                  (citations omitted). The Court held that it
In determining whether qualified immunity
                                                  was not unreasonable for the officers to
was available to the officers, the Supreme
                                                  believe their conduct was lawful. In
Court reviewed its decisions in Harlow v.
                                                  explaining its holding, the Supreme Court
Fitzgerald, 457 U.S. 800 (1982), and
                                                  pointed to the absence of caselaw
Anderson, supra, observing that
                                                  regarding the constitutionality of allowing
        [i]t could plausibly be                   the media to accompany police, as well as
        a sserte d t h a t an y                   the existence of a government policy by
        violation of the Fourth                   the United States Marshal Service
        Amendment is “clearly                     regarding the practice, and declared that
        established,” since it is                 the “state of the law . . . was at best
        clearly established that                  undeveloped.” 536 U.S. at 618. The
        the protections of the                    Court further noted that a circuit split had
        Fou rth Amend m ent                       developed on the question and declared
        apply to the actions of                   that “[i]f judges thus disagree on a
        police. . . . However, as                 constitutional question, it is unfair to
        w e e x p l a in e d in                   subject police to money damages for
        Anderson, the right                       picking the losing side of the controversy.”
        allegedly violated must                   Id.
        b e defined at the
                                                                Most recently, in Hope v. Pelzer,
        appropriate level of
                                                  536 U.S. 730 (2002), the Supreme Court
        specificity before a court
                                                  r e v e r se d t h e E l even th Circ uit’ s
        can determine if it was
                                                  determination that qualified immunity
        clearly established. In
                                                  precluded liability for a prisoner’s claims
        this case, the appropriate
                                                  that his Eighth Amendment rights had
        question is the objective
                                                  been violated when he was handcuffed to
        inquiry whe ther a
                                                  a hitching post for seven hours. Citing its
        reasonable officer could
                                                  earlier precedents, the Supreme Court
        h a ve believed that
                                                  declared that the “salient question . . . is
        bringing members of the
                                                  whether the state of the law in 1995 gave
        media into a home
                                                  respondents fair warning that their alleged
        during the execution of
                                                  t r e a t m e n t of [ the inm a te ] w a s
        an arrest warrant was
                                                  unconstitutional.” Id. at 741 (emphasis
        lawful, in light of clearly

                                             18
added). It concluded that the defendant            and Foster, tight handcuffing alone was
officials had fair warning that the use of         insufficient to establish an excessive force
the hitching post under the circumstances          claim. The remaining cases, however,
alleged by Hope was unlawful, noting two           concluded there were sufficient facts to
Eleventh Circuit decisions and a report by         dem onstra te a Fourth Amendment
the Department of Justice regarding the            violation. As I point out above, the
unconstitutionality of Alabama’s practice          common thread in these latter cases is that:
of using the hitching post. Id. at 743-45.         (1) the arrestee complained that the cuffs
 In addition, the Court observed that the          were too tight and painful, thereby
“obvious cruelty inherent in this practice         providing notice to the officer(s) that the
should have provided respondents with              force applied may have been excessive
some notice that their alleged conduct             under the circumstances; and (2) the
violated Hope’s constitutional protection          officer(s) failed to reasonably respond to
against cruel and unusual punishment.”             the arrestee’s complaints.       Thus, the
Id. at 745-46.                                     caselaw in February 2000 established that
                                                   liability may attach if an officer
         Accordingly, consistent with
                                                   unreasonably ignores or is indifferent to
Hope, Saucier, Wilson and Anderson, I
                                                   the complaints of an arrestee that the force
consider what the contours of the right
                                                   applied by the handcuffs may be excessive
were at the time of Kopec’s arrest and
                                                   under the circumstances.
whether they were sufficiently clear to put
Officer Tate on notice that his conduct                     Prior to the incident at issue in
would violate the Fourth Amendment right           this case, the caselaw did not provide any
to be free from the use of excessive force.        guidance with respect to how quickly an
Saucier, 533 U.S. at 202.                          officer must respond to a complaint that
                                                   handcuffs have been applied too tightly.
         In February 2000, only a handful
                                                   Nor was there any guidance in the cases as
of cases of § 1983 claims involving tight
                                                   to how an officer should prioritize his
handcuffing were extant. See Carter v.
                                                   response when there are other tasks in
Morris, 164 F.3d 215, 219 n.3 (4th Cir.
                                                   which he is legitimately engaged or may
1999); Heitschmidt v. City of Houston, 161
                                                   be required to undertake at the time.
F.3d 834, 839-40 (5th Cir. 1998); Martin
v. Heideman, 106 F.3d 1310, 1313 (6th                       In light of this caselaw, I conclude
Cir. 1997); Alexander v. County of Los             that Tate could have reasonably believed
Angeles, 64 F.3d 1315, 1323 (9th Cir.              that his response to Kopec’s complaints
1995); Palmer v. Sanderson, 9 F.3d 1433,           was lawful. To put it another way, I
1436 (9th Cir. 1993); Foster v. Metro.             believe the law did not put Officer Tate on
Airports Comm’n, 914 F.2d 1076, 1082               notice that he had to respond immediately
(8th Cir. 1990). Significantly, in Carter          to Kopec’s complaint that the handcuffs


                                              19
were too tight. Nor was there any caselaw
providing Officer Tate with fair notice that
he must stop engaging in the legitimate
police task at hand, i.e., interviewing
Smith, in order to assess whether the
handcuffs were too tight. Because the
caselaw did not provide Tate with notice
that his response was unlawful, he should
be entitled to qualified immunity. See
Hope, 536 U.S. at 741; Saucier, 533 U.S.
at 202.
          In summary, I conclude that the
facts fail to demonstrate a violation of the
Fourth Amendment right to be free from
the use of excessive force. Even if the
facts did state a claim of excessive force,
Officer Tate should be entitled to qualified
immunity. Accordingly, I would affirm
the District Court’s order granting
summary judgment for Officer Tate.




                                               20
