Caron v . Hester, et a l . CV-00-394-M 11/13/01 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Joseph Caron, Plaintiff
v. Civil N o . 00-394-M Opinion N o . 2001 DNH 206 Brian Hester, John Doe 1 and John Doe 2 , Defendants
O R D E R
Joseph Caron brings this action against New Hampshire State
Trooper Brian Hester and two of Hester’s unidentified
supervisors, seeking damages for injuries he claims to have
sustained during the course of his arrest. See 42 U.S.C. § 1983.
In count 1 of his complaint, Caron seeks compensation from Hester
for injuries he says he suffered as a result of Hester’s alleged
use of excessive force. In count 2 , he seeks damages from
Hester’s unidentified supervisors, whom he claims were aware of
prior incidents involving Hester’s use of excessive force, yet
did nothing to prevent future abuses by him. Defendants move for summary judgment as to both counts in
Caron’s complaint. As to count 2 , Caron now concedes that
discovery has revealed that Hester has no history of using
excessive force at any time during his 22 year career, nor is
there anything in his personnel file that would suggest he has a
propensity for engaging in such conduct. Accordingly, Caron does
not object to the entry of summary judgment in favor of
defendants as to count 2 . With regard to count 1 , however, Caron
contends that genuine issues of material fact preclude the court
from granting defendants’ motion.
Standard of Review
When ruling upon a party’s motion for summary judgment, the
court must “view the entire record in the light most hospitable
to the party opposing summary judgment, indulging all reasonable
inferences in that party’s favor.” Griggs-Ryan v . Smith, 904
F.2d 112, 115 (1st Cir. 1990). Summary judgment is appropriate
when the record reveals “no genuine issue as to any material fact
and . . . the moving party is entitled to a judgment as a matter
2 of law.” Fed. R. Civ. P. 56(c). In this context, “a fact is
‘material’ if it potentially affects the outcome of the suit and
a dispute over it is ‘genuine’ if the parties’ positions on the
issue are supported by conflicting evidence.” Intern’l Ass’n of
Machinists and Aerospace Workers v . Winship Green Nursing Center,
103 F.3d 196, 199-200 (1st Cir. 1996) (citations omitted).
Background
Armed with arrest warrants for Caron and his wife (for
unlawfully distributing the prescription drug Ritalin), as well
as a search warrant for their home, Trooper Hester, members of
the New Hampshire Drug Task Force, and members of the Hopkinton
Police Department drove to Caron’s home on the morning of August
1 5 , 1997. On the way, Hopikinton Police Chief Ira Migdal
observed Caron driving in the opposite direction. Chief Migdal
reversed direction and stopped Caron. He informed Caron of the
warrants, told him that he was being placed under arrest, and
instructed him to exit the vehicle and place his hands on the
trunk. Caron complied.
3 By the time Trooper Hester arrived at the scene, Chief
Migdal had returned to his cruiser to retrieve a pair of
handcuffs. Caron remained standing at the rear of his car, with
his hands on the trunk. See Exhibit D to defendants’ memorandum
(document n o . 6 ) , Affidavit of Chief Migdal at paras. 6-7. See
also Exhibit 3 to plaintiff’s objection (document n o . 7 ) , State
Police Investigation Report prepared by Trooper Hester. Hester
also informed Caron that he was under arrest and patted him down
for weapons. Id. There is no dispute that, to this point, Caron
was compliant and gave no indication that he posed any threat of
flight or violence. The parties d o , however, have differing
views of what transpired next, when Hester attempted to take
Caron into physical custody.
In his affidavit, Caron recounts the relevant events as
follows:
With both of my hands on the trunk of my car, Trooper Hester put one side of the handcuffs on my right wrist, during which time my right hand remained on the trunk of my car. It is my right shoulder that is injured. During the few moments that Trooper Hester was putting
4 the handcuffs on my right wrist, I told him more than once to take it easy, that I had a bad shoulder, that I could not put my arm behind my back, and that I would not cause him any problems. While I was saying this to Trooper Hester, Trooper Hester finished putting the handcuffs on my right wrist and was telling me to put that hand behind my back, ignoring my repeated statements that I could not. Finally, after the time it took for Trooper Hester to finish handcuffing my right wrist and for us to exchange these words, Trooper Hester went ahead and pulled my right arm forcibly toward my back, a motion my shoulder simply cannot make due to the severe limitations in my range of motion. I experienced sudden and excruciating pain. I turned my body in an attempt to protect my shoulder. Trooper Hester immediately used my bad arm to force me to the ground face first. I specifically remember telling Trooper Hester about my injured shoulder well before he pushed me to the ground. I remember Chief Migdal yelling about my shoulder. However, it took Trooper Hester several more moments before he relented.
Exhibit 2 to plaintiff’s objection, Affidavit of Joseph Caron at
para. 3 . Caron does not claim that Hester deviated from normal
handcuffing procedures or that he used more than ordinary force
to secure the handcuffs on him. Instead, he seems to assert that
the force used, though reasonable if applied to an ordinary
citizen, was “unreasonable” as applied to him because his
5 shoulder condition rendered him more susceptible to injury than
an ordinary citizen.1
Trooper Hester, on the other hand, recalls the relevant
events somewhat differently.
I went to the location where Mr. Caron had been stopped and exited from my car, and walked over to Mr. Caron. When I approached him, M r . Caron was standing with this hands on the trunk. I told Mr. Caron that I was placing him under arrest. At that time, Mr. Caron did not mention that he had a pre-existing shoulder injury, or that he had had surgery on his shoulder. I took hold of his right arm hand and placed a handcuff on his wrist. I then took hold of his right hand and began pulling it back in order to place the handcuff on his other arm. At that moment, Mr. Caron yelled “What are you doing?” and started pulling his arms away from me and twisting his body away from m e .
1 Caron’s complaint alleges only that Hester used excessive force during his initial efforts to take Caron into custody on the side of the road. See Complaint at paras. 10-13, and 2 1 . Caron’s affidavit, however, makes vague reference to subsequent, allegedly excessive, conduct on the part of Hester at Caron’s home, while police officers executed the search warrant. See Caron affidavit at para. 8 . Even if Caron had included those allegations in his complaint, however, they do not describe conduct on the part of Hester that even arguably might be described as excessive force. Consequently, the court has focused exclusively on the claims set forth in Caron’s complaint concerning his treatment at the roadside stop.
6 At this point, it appeared to me that Mr. Caron was resisting arrest. . . . In order to keep control of M r . Caron and to avoid a dangerous situation from developing I made a rapid decision to place Mr. Caron on the ground. I retained my hold on the hand with the handcuff, and using my other arm in his back, I pushed him face-down onto the ground. I did not slam him on the ground or use any more force than was necessary.
Exhibit C to defendants’ memorandum, Affidavit of Trooper Brian
Hester at paras. 5-7. Hester says that once Caron was on the
ground, Chief Migdal told him that Caron had undergone shoulder
surgery in the past. According to Hester, “Once I learned that
fact, I stopped my efforts to handcuff Mr. Caron and told him to
calm down. Once Mr. Caron had calmed down, I agreed to allow Mr.
Caron to be handcuffed in the front.” Id., at para. 7 .
Hester’s account is largely supported by that of Chief
Migdal, who described the relevant events as follows:
As I was going back to my cruiser [to retrieve a pair of handcuffs], Trooper Hester . . . arrived, and Trooper Hester began placing Caron under arrest. At no point did I hear the Plaintiff inform Trooper Hester about his shoulder injury.
7 I observed Trooper Hester begin drawing one of Caron’s arms behind his back for the purpose of applying handcuffs. Mr. Caron immediately straightened up and began pulling away from Trooper Hester and began twisting his body around. Trooper Hester reacted immediately and, using a straight-arm takedown technique, placed Joseph Caron face down on the ground.
I quickly ran over and told Trooper Hester that Caron had a shoulder injury and to take care with i t . Trooper Hester immediately released the pressure on Caron’s arm. I spoke with Caron and told him if he would relax and behave himself, I would handcuff him in the front.
Exhibit D to defendants’ memorandum, Affidavit of Chief Ira
Migdal at paras. 7-9.2
2 Although Chief Migdal says he did not hear Caron warn Trooper Hester about his shoulder injury, his affidavit does not reveal whether he was close enough to Caron’s vehicle to overhear any conversations that might have occurred prior t o , or during, Hester’s efforts to handcuff Caron. The fact that Chief Migdal had to “run over” to inform Hester of Caron’s shoulder injury suggests that he might have been far enough away to have missed any statements Caron might have made to Hester about his shoulder injury.
8 Discussion
The only material factual dispute identified by Caron
concerns whether he informed Hester of his shoulder injury prior
to Hester’s efforts to handcuff him. Construing the facts in the
light most favorable to Caron, the non-moving party, the court
will, for purposes of addressing defendants’ motion, assume that
Caron did tell Hester that he had “a bad shoulder” and “could not
put [his] arm behind [his] back.” The legal questions presented
by defendants’ motion for summary judgment, then, are: (1)
whether, in light of that information, Hester violated Caron’s
constitutional rights by using excessive force in attempting to
handcuff him; and (2) if Hester did use excessive force, if he is
nonetheless entitled to qualified immunity.
I. Excessive Force.
Claims of excessive force in the context of an arrest are
analyzed under the Fourth Amendment, which guarantees citizens
the right “to be secure in their persons . . . against
unreasonable . . seizures.” See Graham v . Connor, 490 U.S. 386,
9 394 (1989). Consequently, to prevail on his excessive force
claim, Caron must demonstrate that Trooper Hester’s conduct was
not objectively reasonable when viewed in light of the facts and
circumstances facing him at the time, and without regard to his
subjective intent or motivation. See Alexis v . McDonald’s
Restaurants of Massachusetts, Inc., 67 F.3d 341, 352 (1st Cir.
1995).
While the term “reasonable” is a familiar one, used often in
the context of negligence claims, the court of appeals for this
circuit has noted that it has a more “generous” meaning in the
context of excessive force claims.
[T]he Supreme Court’s standard of reasonableness is comparatively generous to the police in cases where potential danger, emergency conditions or other exigent circumstances are present. In Graham v . Connor, the Court said that the “calculus of reasonableness” must make “allowance” for the need of police officers “to make splitsecond judgments - in circumstances that are tense, uncertain, and rapidly evolving - about the amount of force that is necessary in a particular situation.”
10 Roy v . Inhabitants of City of Lewiston, 42 F.3d 691, 695 (1st
Cir. 1994). The court concluded that, “the Supreme Court intends
to surround the police who make these on-the-spot choices in
dangerous situations with a fairly wide zone of protection in
close cases.” Id. See also Graham, 490 U.S. at 396 (“Our Fourth
Amendment jurisprudence has long recognized that the 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 . . . Not every push or shove, even if it
may later seem unnecessary in the peace of a judge’s chambers,
violates the Fourth Amendment.”) (citation and internal quotation
marks omitted).
In determining whether an officer’s conduct was objectively
reasonable under the circumstances, the court (or trier of fact,
as the case may be) must consider, among other things, the
following factors: “the severity of the crime at issue, whether
the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest
11 or attempting to evade arrest by flight.” Graham, 490 U.S. at
396. See also Alexis, 67 F.3d at 352-53. As the Court of
Appeals for the Ninth Circuit has observed, “the force which was
applied must be balanced against the need for that force: it is
the need for force which is at the heart of the consideration of
the Graham factors.” Alexander v . City and County of San
Francisco, 29 F.3d 1355, 1367 (9th Cir. 1994).
In this case, the court must focus, at least initially, on
Hester’s decision to handcuff Caron behind his back,
notwithstanding Caron’s accepted statements that he had a bad
shoulder and could not extend his right arm behind his back.
Hester’s subsequent decision to put Caron on the ground, after it
objectively appeared that Caron was resisting, was certainly
reasonable, particularly since decisions of that sort must be
made in the context of rapidly evolving circumstances in which an
officer might reasonably be concerned for his or her own safety.
All the evidence suggests that Hester used no more force than was
reasonably necessary to control Caron and promptly relented once
12 he was subdued. And, after Chief Migdal informed Hester of
Caron’s history of shoulder surgery, Hester agreed to handcuff
Caron with his hands in front.
Nevertheless, if Hester’s decision to handcuff Caron behind
his back was itself unreasonable, it unnecessarily created a
situation in which Caron was needlessly exposed to potential
injury. Consequently, the fact that Hester was required to make
a split-second decision about how to handle Caron’s apparent
efforts to resist arrest is not material. The legally relevant
question is whether Hester was justified, at the outset, in
attempting to handcuff Caron with his hands behind his back - the
decision that set in motion the events that ultimately lead to
Caron’s alleged injuries.
Several things can be said of the circumstances surrounding
Hester’s decision to handcuff Caron. First, Hester was not
operating under any sort of time constraint or pressure. When he
arrived at the scene, Caron was already standing calmly at the
13 rear of his vehicle with his hands on the trunk. Moreover, the
fact that Chief Migdal left Caron unattended while he searched
for a set of handcuffs suggests that he did not consider Caron to
pose any immediate danger or a risk of flight. And, up until the
point at which Hester attempted to place Caron’s arm behind his
back, Caron showed no signs that he intended to resist. Finally,
as to the “severity of the crime at issue,” Graham, 490 U.S. at
396, reasonable minds might disagree as to the seriousness of
distributing Ritalin without a prescription, but nothing about
that crime, or the circumstances surrounding Caron’s alleged
commission of i t , suggests that Caron was likely to pose a
physical threat to the arresting officers. Consequently,
accepting the relevant facts as presented by Caron, “all the
surrounding circumstances, individually and in combination,
plainly counseled minimal force in effecting any arrest.”
Alexis, 67 F.3d at 353.
Whether Hester used appropriate “minimal force” in
effectuating Caron’s arrest and, indeed, whether Hester’s conduct
14 was “reasonable,” turns on whether (or the extent to which)
police officers must credit a suspect’s unsupported claim that he
or she suffers from some injury or physical condition that
reasonably precludes handcuffing the suspect in the normal manner
– with his or her hands behind the back.
Cases of this sort are necessarily fact specific and sui
generis. Nevertheless, the opinions of other courts provide some
useful guidance in this area. In cases involving suspects who
display some objective indicia of injury or disability (e.g.,
cast, sling, neck brace, wheel chair, e t c . ) , there appears to be
general agreement that officers must take note of the suspect’s
complaints and make some effort to accommodate the claimed
conditions or injuries, provided the circumstances permit such an
accommodation. See, e.g., Guite v . Wright, 147 F.3d 747 (8th
Cir. 1998) (officer’s motion for summary judgment as to excessive
force claim denied where officer forcibly restrained plaintiff
who was “recovering from surgery on his left shoulder and was
wearing a sling on his left arm” at the time); Howard v .
15 Dickerson, 34 F.3d 978 (10th Cir. 1994) (officer’s motion for
summary judgment denied as to plaintiff’s claim that officer
showed deliberate indifference to medical condition by
handcuffing her behind her back when she was wearing a neck
brace, she told the officer of her injury and recent surgery, and
third party confirmed that plaintiff should not be handcuffed
behind her back).
There i s , however, a lack of consensus when the suspect’s
claims concerning his or her injury are not supported by such
objective manifestations. Compare Morreale v . City of Cripple
Creek, 1997 WL 290976 (10th Cir. 1997) (officer used force that
was neither “substantial” nor “abusive” and, therefore, not
“excessive” where, despite suspect’s request that she be
handcuffed in front to avoid exacerbating a pre-existing shoulder
injury, officer handcuffed her in back); Jackson v . City of
Bremerton, __ F.3d __, 2001 WL 1173792 (9th Cir. Oct. 5 , 2001)
(officer did not use excessive force in allegedly pushing suspect
to the ground and kneeling on her back, notwithstanding suspect’s
16 having informed officer of her preexisting back and shoulder
injuries); with Stocker v . City and County of San Francisco, 1999
WL 402236 (9th Cir. 1999) (“The dispute as to whether M r . Stocker
told the officers that the injury to his shoulder prevented his
arms from being pulled back without causing severe pain or
further damage precludes summary judgment on his excessive force
claim.”); Walton v . City of Southfield, 995 F.2d 1331, 1342 (6th
Cir. 1993) (concluding that “an excessive force claim could be
premised on [defendant’s] handcuffing [plaintiff] if he knew that
she had an injured arm and if he believed that she posed no
threat to him.”).
Accepting Caron’s version of the facts as true and crediting
his claim to have specifically told Hester that he intended to
fully cooperate and that he suffered from a pre-existing shoulder
injury that prevented him from putting his right arm behind his
back, the court cannot conclude, as a matter of law, that the
force used by Hester under the described circumstances was
objectively reasonable. Crediting Caron’s claims, particularly
17 in light of the record’s disclosure that Caron was cooperative
and posed neither a flight risk nor danger to the officers or
others, it is conceivable that a properly instructed jury might
reasonably conclude that Hester employed more force than
reasonably necessary in attempting to handcuff Caron behind his
back. See generally Alexis, 67 F.3d at 353 (acknowledging, at
least implicitly, that the “reasonableness” of force used by
police officers is typically a factual question that must be
resolved by the jury) (citing cases). Consequently, the court
cannot conclude, as a matter of law, that Hester did not violate
Caron’s Fourth Amendment rights in effecting his arrest. Whether
he did or did not depends upon resolution of a material factual
dispute.
II. Qualified Immunity.
Having concluded that genuine issues of material fact
preclude the court from holding, as a matter of law, that Hester
used reasonable force under the circumstances in attempting to
handcuff Caron behind his back, the court next turns to Hester’s
18 assertion that, even assuming Caron’s constitutional rights were
violated, he is nonetheless entitled to qualified immunity.
Parenthetically, the court notes that Caron erroneously
argues that the standard used to determine whether Hester
violated his constitutional right to be free from excessive force
is identical to the standard employed to determine whether Hester
is entitled to qualified immunity. Specifically, Caron claims:
The law governing excessive force was clearly established as of August, 1997, and defendants do not argue otherwise, which law essentially requires police officers to act reasonably in using force to complete an arrest. Thus, Trooper Hester is entitled to qualified immunity if he acted reasonably in arresting plaintiff. That is precisely the same question asked above. That i s , defendants’ dual arguments for summary judgment are actually the same.
Plaintiff’s objection (document n o . 7 ) at paras. 16-17 (citations
omitted). The Supreme Court has, however, explicitly rejected
that argument.
The Court of Appeals concluded that qualified immunity is merely duplicative in an excessive force case, eliminating the need for the second step [i.e., was the
19 officer’s conduct “objectively reasonable”] where a constitutional violation could be found based on the allegations. In Anderson, a warrantless search case, we rejected the argument that there is no distinction between the reasonableness standard for warrantless searches and the qualified immunity inquiry. We acknowledged there was some “surface appeal” to the argument that, because the Fourth Amendment’s guarantee was a right to be free from “unreasonable” searches and seizures, it would be inconsistent to conclude that an officer who acted unreasonably under the constitutional standard nevertheless was entitled to immunity because he ‘reasonably’ acted unreasonably. This superficial similarity, however, could not overcome either our history of applying qualified immunity analysis to Fourth Amendment claims against officers or the justifications for applying the doctrine in an area where officers perform their duties with considerable uncertainty as to whether particular searches or seizures comport with the Fourth Amendment.
Saucier v . Katz, 121 S.Ct. 2151, 2157 (2001) (citations and
internal quotation marks omitted) (emphasis supplied).
Consequently, the court again held that qualified immunity
shields those officers who make “reasonable mistakes as to the
legality of their actions.” Id., at 2159.
Turning, then, to Hester’s assertion that he is entitled to
qualified immunity, the court must engage in a two-step inquiry.
20 The first prong is whether the constitutional right in question was clearly established at the time of the alleged violation. In the second prong, the court employs an “objective reasonableness” test in determining whether a reasonable, similarly situated official would understand that the challenged conduct violated the established right.
Napier v . Town of Windham, 187 F.3d 177, 183 (1st Cir. 1999)
(citation omitted). At the first stage of that inquiry -
determining whether the constitutional right at issue was
“clearly established” - courts must “define the right asserted by
the plaintiff at an appropriate level of generality.” Brady v .
Dill, 187 F.3d 104, 115 (1st Cir. 1999). To qualify as a clearly
established right, “the law must have defined the right in a
quite specific manner, and . . . the announcement of the rule
establishing the right must have been unambiguous and widespread,
such that the unlawfulness of particular conduct will be apparent
ex ante to reasonable public officials.” Id., at 116. See also
Saucier v . Katz, 121 S.Ct. 2151, 2156 (2001) (“[I]f a violation
could be made out on a favorable view of the parties’
submissions, the next, sequential step is to ask whether the
21 right was clearly established. This inquiry, it is vital to
note, must be undertaken in light of the specific context of the
case, not as a broad general proposition.”); Anderson v .
Creighton, 483 U.S. 635, 640 (1987) (“[T]he right the official is
alleged to have violated must have been ‘clearly established’ in
a more particularized, and hence more relevant, sense: The
contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing
violates that right.”). As the Supreme Court recently observed:
The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. It is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts. An officer might correctly perceive all of the relevant facts but have a mistaken understanding as to whether a particular amount of force is legal in those circumstances. If the officer’s mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense.
Saucier, 121 S.Ct. at 2158.
22 A difficult question is presented in this case regarding the
level of specificity with which it is appropriate to define the
constitutional right Caron claims was violated. All can agree
that the right not to be subjected to “unreasonable” or
“excessive” force during the course of an arrest was, when Caron
was taken into custody, clearly established. However, “a
reasonable official’s awareness of the existence of an abstract
right, such as a right to be free from excessive force, does not
equate to knowledge that his conduct infringes the right.” Smith
v . Mattox, 127 F.3d 1416, 1419 (11th Cir. 1997) (emphasis in
original). And, if the constitutional right Caron claims was
infringed must necessarily be defined more precisely, it is far
less clear that such a right was “clearly established” at the
time.
The record demonstrates that the force employed by Hester
against Caron was, objectively, de minimus. And, as the Supreme
Court has observed, “the right to make an arrest or investigatory
stop necessarily carries with it the right to use some degree of
23 physical coercion or threat thereof to effect it.” Graham, 490
U.S. at 396. Except for Caron’s preexisting shoulder injury, and
the fact that it allegedly rendered him more fragile than an
ordinary person, he would have suffered no discomfort or lasting
effects from the manner in which Hester applied the handcuffs.
Reduced to its essence, then, the question presented is whether
Caron had a clearly established right not to be handcuffed behind
his back after he allegedly informed Hester of his shoulder
injury. He did not.
Caron has pointed to no precedent that would support his
necessary claim that, at the time of his arrest, it was clearly
established that police officers use unlawful and excessive force
when they handcuff a suspect behind the back, notwithstanding the
suspect’s unsupported claim to suffer from an injury that either
prevents, or would be exacerbated by, such conduct. See
generally Saucier, 121 S.Ct. at 2160 (“[N]either respondent nor
the Court of Appeals has identified any case demonstrating a
24 clearly established rule prohibiting the officer from acting as
he did, nor are we aware of any such rule.”).
To be sure, as noted above, there are cases that involved
police officers’ use of excessive force against a suspect who had
visible signs of an injury or medical condition that should have
established the reasonable likelihood of a suspect’s vulnerable
condition and counseled against the level of force actually
employed. See, e.g., Guite, 147 F.3d at 750 (officer not
entitled to summary judgment on qualified immunity grounds where,
notwithstanding fact that suspect was wearing a sling on his arm,
officer grabbed his wrist, pushed him, and held him against a
door); Howard v . Dickerson, 34 F.3d at 980-81 (officers not
entitled to summary judgment on qualified immunity grounds where
suspect advised officers that she had just undergone surgery, she
was wearing a neck brace, and third party advised officers not to
handcuff her with her hands behind her back). In cases of that
sort, it is both logical and reasonable to expect police officers
to recognize that the suspect is potentially more susceptible to
25 injury than the ordinary citizen and to require the officers to
act accordingly.
In this case, however, the only “evidence” of Caron’s
preexisting shoulder injury was his statement to that effect - a
statement, no doubt, uttered by many suspects who, if given the
choice, would prefer not to be handcuffed at all and, if they
must be restrained in that manner, would prefer that the
handcuffs be in front. Trooper Hester was not confronted with
any objective manifestation of Caron’s claimed shoulder problem.
Because qualified immunity shields “all but the plainly
incompetent or those who knowingly violate the law,” Malley v .
Briggs, 475 U.S. 335, 341 (1986), Hester is entitled to qualified
immunity as long as a reasonable police officer in his position
could have believed that attempting to handcuff Caron behind his
back, notwithstanding his oral protestation, was lawful. See
Anderson, 483 U.S. at 641 (“The relevant question in this case,
for example, is the objective (albeit fact-specific) question
26 whether a reasonable officer could have believed Anderson’s
[conduct] to be lawful, in light of clearly established law and
the information the [officers] possessed.”).
Although the Court of Appeals for the First Circuit has yet
to confront this particular issue, several other courts have done
so and concluded, at a minimum, that a suspect who displays no
visible signs of being unusually vulnerable or fragile, is not
subjected to excessive force when a police officer uses
customary, reasonable force in applying handcuffs or otherwise
effecting an arrest. For example, the District Court for the
Northern District of Alabama recently concluded that police
officers were entitled to qualified immunity, notwithstanding the
fact that the suspect, an elderly woman with heart problems who
told officers she was “suffocating,” suffered a mild heart attack
as officers were attempting to take her into custody. The court
concluded that:
The issue is whether [the officer] used excessive force in accomplishing the arrest. There is no reasonable inference that he used excessive force. It is a sad
27 fact that any confrontation and any force may have contributed to a heart attack. The result, however, does not convert reasonable force under the circumstances into excessive force. There is no reasonable inference that [the officer] knew or should have known that handcuffing the plaintiff when she was “smothering” from the heat would cause her a severe injury.
Hendon v . City of Piedmont, __ F. Supp. 2d __, 2001 WL 1078158
(N.D.Ala. Sept. 1 1 , 2001).
In Wells v . State of Oklahoma, 1996 WL 557722 (10th Cir.
Sept. 3 0 , 1996), the Court of Appeals for the Tenth Circuit
reached a similar conclusion in a case virtually identical to
this one. There, the suspect claimed that he told the arresting
officer that “my arm [is] full of plates and screws, and I [have]
limited movement and it [will] not go behind my back.” Id., at *
1. Nevertheless, the suspect claimed the officer disregarded his
statement and “took his arms and forcefully pulled them behind
his back.” Id. Notwithstanding the fact that the suspect was
cooperative and non-threatening, and the crime for which he was
arrested was a misdemeanor, the appellate court concluded that
28 the force applied was neither unreasonable nor excessive, despite
resulting injury to the suspect.
Although handcuffed, the degree of force used to restrain [plaintiff] was minimal. [The officer] testified that the handcuff technique he used was the least forceful and restrictive of the three he considered. We noted in [a prior opinion] that the first duty of a police officer is to ensure the safety of the officers and the public. Handcuffing is a necessary expedient to this end. We have also held that the right to arrest an individual carries with it the right to use some physical coercion to effect the arrest.
Id., at *3 (citations and internal quotation marks omitted).
Accordingly, the court concluded that “putting handcuffs on a
potentially fragile arrestee without use of abnormal force” is
not unlawful. Id. See also Morreale, 1997 WL 290976 at *1
(officer entitled to summary judgment, notwithstanding the fact
that suspect specifically told him she could not be handcuffed
with her hands behind her back due to a shoulder injury);
Jackson, __ F.3d __, 2001 WL 1173792 (9th Cir. Oct. 5 , 2001)
(officer entitled to judgment, notwithstanding fact that suspect
told him she suffered from back and shoulder injuries and claimed
29 the officer injured her by pushing her to the ground, placing his
knee on her back, and applying handcuffs). See generally Nolin
v . Isbell, 207 F.3d 1253, 1257-58 (11th Cir. 2000) (“[T]his
circuit has established the principle that the application of de
minimus force, without more, will not support a claim for
excessive force in violation of the Fourth Amendment. . . . We
again hold, . . . that a minimal amount of force and injury, as
present in the facts of this case, will not defeat an officer’s
qualified immunity in an excessive force case.”).
In light of the current legal landscape, the court cannot
conclude that Caron had a “clearly established” right to be
handcuffed in front (or not at all) after he informed Hester of
his shoulder injury or, viewed somewhat differently, that he had
a “clearly established” right not to be handcuffed with his hands
behind his back once he invoked a shoulder injury. Consequently,
a reasonable officer would not have understood that attempting to
handcuff Caron with his hands behind his back after he claimed to
have a shoulder injury amounted to a violation of Caron’s
30 constitutional right to be free of excessive force. Trooper
Hester i s , therefore, entitled to qualified immunity. See
generally Joyce v . Town of Tewksbury, 112 F.3d 1 9 , 22-23 (1st
Cir. 1997) (“Given the unsettled state of the law, we have no
hesitation in concluding that the officers in this case are
protected by qualified immunity, which protects public officials
against section 1983 liability so long as they acted reasonably.
. . . Because it is not even clear that there was a violation - a
point we do not decide - there certainly was no violation so
patent as to strip the officers of qualified immunity.”).
Conclusion
The legal question presented by this case and those
involving similar facts is a difficult one: under what
circumstances and to what degree must a police officer credit a
suspect’s unsupported claim that he or she suffers from an injury
or physical condition that necessarily prevents the suspect from
being handcuffed in the ordinary manner with minimal force – with
his or her hands behind the back. On the one hand, courts do not
31 want to vest suspects with casual veto power over efforts to
handcuff them simply by claiming to have a bad wrist, arm,
shoulder, back, etc. To require police officers to universally
credit such unsupported claims, or embark upon an investigation
into those claims, would needlessly interfere with their duties
and, perhaps, expose them and members of the public to
unnecessary risk in rapidly evolving situations. On the other
hand, courts are justifiably concerned that police officers use
only that amount of force reasonably necessary to take a suspect
into custody and that they exercise common sense and reasonable
judgment when restraining a visibly debilitated suspect (or even
one who merely claims to be injured). Rigid protocols and
standard operating procedures can never replace common sense and
reasonable judgment under the circumstances actually presented.
Those potentially conflicting interests make it difficult to
articulate general, broadly applicable rules governing the amount
of force police may and may not use when taking suspects into
custody. It is all the more difficult to establish bright-line
32 rules governing the circumstances under which police may (and may
not) handcuff a suspect with his or her hands behind the back.
Consequently, it is not surprising that many of the judicial
opinions addressing the issue are unpublished, involve unique
circumstances, and provide little basis upon which to craft
generally applicable principles. Nor is it surprising that none
clearly and unequivocally states that suspects either do or do
not have a constitutional right to be handcuffed in front if they
claim to have an injury making it painful or difficult to place
their hands behind their back. Instead, courts prefer to address
each case based upon the unique facts and circumstances that gave
rise to i t , limiting any holding to the unique circumstances of
that particular case. As a result, there is no precedent
“clearly establishing” the right Caron claims Hester violated.
In fact, there is a modest body of law standing for the
proposition that what Hester allegedly did was entirely lawful.
In summary, then, it is agreed that in attempting to
handcuff Caron, Hester used only that force reasonably necessary
33 to handcuff a suspect of ordinary constitution. Objectively,
nothing about his conduct was excessive or abusive. It was only
because Caron suffered from a shoulder injury and was more
susceptible to pain and damage to his shoulder than the ordinary
citizen that he sustained any injury in the course of his arrest.
Of course, if Caron had some outward indicia of injury (e.g., a
cast or neck brace), or if Caron had asked Chief Migdal to
confirm his injury before Hester applied the handcuffs, or if
Chief Migdal had volunteered that information, one might
plausibly conclude that even the use of ordinarily appropriate
force against Caron might have been excessive. However, even
accepting Caron’s version of the facts, the only indication
Hester had that Caron suffered from a bad shoulder was Caron’s
unsupported statement to that effect - a statement Caron says he
made while Hester was already in the process of handcuffing him.
Under those circumstances, it is unlikely that a jury could
reasonably conclude that Hester’s conduct was either unreasonable
or excessive under the circumstances. But, even if Hester did
use excessive force, it cannot plausibly be said that a
34 reasonable and well trained police officer would have realized
that Hester’s conduct would violate any of Caron’s clearly
established constitutional rights - here, the asserted right not
to be handcuffed with his hands behind him upon invoking a
shoulder injury. See, e.g., Saucier, 121 S.Ct. at 2156-57 (“If
the law did not put the officer on notice that his conduct would
be clearly unlawful, summary judgment based on qualified immunity
is appropriate.”).
In light of the foregoing, Trooper Hester is entitled to
qualified immunity and judgment as a matter of law. Defendants’
motion for summary judgment as to both counts in plaintiff’s
complaint (document no. 6 ) i s , therefore, granted. The Clerk of
the Case shall enter judgment in accordance with this order and
close the case.
35 SO ORDERED.
Steven J. McAuliffe United States District Judge
November 1 3 , 2001
cc: Michael J. Sheehan, Esq. Andrew B . Livernois, Esq.