                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0152n.06

                                            No. 11-3050

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                          FILED
WANDA CROOKS,                                     )                                  Feb 07, 2012
                                                  )                           LEONARD GREEN, Clerk
       Plaintiff-Appellant,                       )
                                                  )
v.                                                )    ON APPEAL FROM THE UNITED
                                                  )    STATES DISTRICT COURT FOR THE
HAMILTON COUNTY, OHIO;                            )    SOUTHERN DISTRICT OF OHIO
HAMILTON COUNTY, OHIO BOARD OF                    )
COUNTY COMMISSIONERS; and                         )
WILLIAM DEAN,                                     )
                                                  )
       Defendants,                                )
                                                  )
ANTHONY J. GARDNER,                               )
                                                  )
       Defendant-Appellee.                        )


       Before: CLAY, SUTTON and STRANCH, Circuit Judges.


       SUTTON, Circuit Judge. Officer Anthony Gardner arrested Wanda Crooks, then sixty-five

years old, for passing a bad check. He handcuffed her behind back, prompting Crooks and her son

to ask him to handcuff her in front of her body to accommodate her arthritis, a request he repeatedly

denied even as she cried in pain during a thirty-minute ride to the county jail. Experiencing soreness

in her shoulders and elsewhere, Crooks went to several doctors soon after the arrest and learned that

she had a broken rib and an aggravated chest wall. This evidence and other features of the

encounter, as construed in Crooks’s favor, entitle her to take this § 1983 Fourth Amendment

excessive-force claim to a jury.
Crooks v. Hamilton County, et al.
Case No. 11-3050


                                                  I.


       On September 2, 2008, a police officer in Union Township, Ohio executed a felony arrest

warrant from Hamilton County for Wanda Crooks, stemming from a bad rent check. R.32 at 51.

The officer drove Crooks to the county line, where he transferred her to Hamilton County Deputy

Anthony Gardner. Crooks told Gardner she had arthritis as well as “really bad issues” with her neck,

back and shoulders, and asked to be handcuffed in front—an accommodation the Union Township

officer had just made for her. R.32 at 53. Although Gardner did not worry that Crooks posed a

threat, he did not think Crooks came within any exception to the county’s policy of handcuffing all

arrestees behind their back during transport. The policy provided an exception for elderly people

arrested for minor offenses, but Gardner considered age 66 the threshold for “elderly”—Crooks was

65—and thought a felony could not be a “minor offense.” R.24-7 at 3. The policy also permitted

exceptions for arrestees whose “physical condition precludes handcuffing to the rear,” but Gardner

rejected that possibility because Crooks did not cry out in pain when he initially cuffed her behind

the back. R.24-7 at 3–4.


       Soon after Gardner placed Crooks in the police car, her son arrived. He told Gardner his

mother was having “a lot of pain from her arms being handcuffed behind her back” and asked

Gardner to move the cuffs to the front. R.33 at 34. “I don’t know what to tell you,” Gardner replied.

“This is how it is.” R.33 at 34. Gardner drove Crooks to the county jail. Crooks cried throughout

the thirty-minute trip, asking Gardner to loosen the cuffs.


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Crooks v. Hamilton County, et al.
Case No. 11-3050


       Prosecutors dropped the charge the next day and released her from jail. Later that day,

Crooks attended a pre-scheduled doctor’s appointment. She reported that she was “doing worse this

past month secondary to a recent arrest.” R.23-9 at 8. The nurse noted “increasing pain to her

shoulders and neck” in the wake of the handcuffing incident. R.23-9 at 8. Two days later, she

visited the emergency room complaining of pain in her chest; doctors attributed it to a problem in

the chest wall” likely caused by lifting, twisting, coughing or vomiting. R.23-8 at 27. An x-ray

taken about a week after the arrest did not reveal any fractures, but a second x-ray taken a week after

that suggested an acute chest wall injury and a rib fracture.


       Crooks sued Gardner, alleging he used excessive force in handcuffing her, violating the

Fourth (and Fourteenth) Amendment’s prohibition on “unreasonable . . . seizures.” The district court

granted Gardner’s motion for summary judgment, holding that Crooks failed to present sufficient

evidence of injury stemming from the arrest and that Gardner at any rate did not violate any clearly

established constitutional right.


                                                  II.


       When construed in Crooks’s favor, the evidentiary record establishes a triable issue of fact

over whether Officer Gardner used excessive force in securing her. Our decision in Walton, points

the way. Walton v. City of Southfield, 995 F.2d 1331 (6th Cir. 1993), superseded by statute on other

grounds as recognized by Livermore ex rel Rohm v. Lubelan, 476 F.3d 397, 407–08 (6th Cir. 2007).

An officer pulled over Barbara Walton after he observed her two-year-old granddaughter standing

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Crooks v. Hamilton County, et al.
Case No. 11-3050


on the front passenger seat without a child restraint. Id. at 1333. When the officer discovered

Walton was driving with a suspended license, he placed her under arrest. Id. at 1333–34. Walton

told the officer that she was returning from the doctor’s office after receiving treatment for her sore

shoulder and asked the officer not to handcuff her in the back. Id. at 1334. The officer refused.

Once in the police vehicle, Walton cried, told the officer that her shoulder hurt and asked him to

remove the handcuffs. Id. The officer again refused, saying they would get to the station shortly.

Id.


       Walton sued. We denied the officer’s qualified-immunity defense, concluding that “[a]n

excessive use of force claim could be premised on [the officer’s] handcuffing Walton if he knew that

she had an injured arm and if he believed that she posed no threat to him.” Id. at 1342. The parallel

between the two cases is difficult to ignore. Here, as in Walton, a woman who posed no threat to the

officer or anyone else asked to be handcuffed in front instead of behind her back because of her

medical condition. And here, as in Walton, the officer’s refusal to accommodate the request created

a triable issue of fact over excessive force.


       Since Walton, it is true, our circuit has adopted another requirement for handcuffing

excessive-force claims: physical injury. Absent an “allegation of physical injury,” we held in

Neague v. Cynkar, 258 F.3d 504, 508 (6th Cir. 2001) (footnote omitted), “the handcuffing of an

individual incident to a lawful arrest is insufficient as a matter of law to state a claim of excessive

force under the Fourth Amendment.” Crooks satisfies this requirement as well. She reported


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Crooks v. Hamilton County, et al.
Case No. 11-3050


“increasing pain to her shoulders and neck” to her doctor the following day, R.23-9 at 8, and

emergency-room doctors diagnosed a “chest wall problem” three days after the arrest, R.23-8 at 27.

An x-ray taken a week and a half later indicated a broken rib and an “acute chest wall injury.” R.23-

8 at 26. Based on this evidence, a jury reasonably could conclude that Crooks broke her rib and

injured the wall of her chest while riding in the car because Gardner handcuffed her from behind.


       Gardner points out that an intervening x-ray, taken closer in time to the incident, did not

show a fracture. But it is hardly implausible that the first x-ray technician missed the fracture the

later x-ray revealed, especially given Crooks’s repeated reports to medical professionals that the

chest pain started around the time of her arrest. It is for a jury, not us, to decide whether excessive

force or something else caused the fracture.


       No doubt, it is not everyday that handcuffing an individual’s hands behind her back leads to

a broken rib. But it also is not everyday that the police handcuff a 65-year-old, arthritic woman from

the back for a non-violent crime and in the face of persistent claims of pain. The key point is that

any skepticism of her injury is not “so objectively compelling that no reasonable juror could believe”

Crooks’s explanation. Shreve v. Jessamine Cnty. Fiscal Court, 453 F.3d 681, 688 (6th Cir. 2006).

       Taking a different tack, Gardner argues that the constitutional yardstick for measuring his

actions is not the Fourth Amendment but the “substantially higher” requirements of the Fourteenth

Amendment’s Due Process Clause. Darrah v. City of Oak Park, 255 F.3d 301, 306 (6th Cir. 2001).




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Crooks v. Hamilton County, et al.
Case No. 11-3050


But Gardner never raised this argument before the district court, and we decline to address it for the

first time on appeal. See United States v. Boumelhem, 339 F.3d 414, 428 (6th Cir. 2003).


                                                 IV.


       For these reasons, we reverse and remand the case to the district court for further

proceedings.




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