18‐1378 Cugini v. City of New York, Palazzola
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2019 (Argued: March 29, 2019 Decided: October 25, 2019) Docket No. 18‐1378
DONNA CUGINI, Plaintiff‐Appellant,
v.
CITY OF NEW YORK, CHRISTOPHER PALAZZOLA, Defendants‐Appellees.
Before: SACK, HALL, AND DRONEY, Circuit Judges.
The plaintiff‐appellant, Donna Cugini, brought a civil rights action in the
United States District Court for the Eastern District of New York against the City
of New York and Officer Christopher Palazzola in his individual capacity. She
alleged a federal claim for excessive force against Palazzola, under the Fourth
and Fourteenth Amendments pursuant to 42 U.S.C. § 1983, and state law claims
against the City for assault and battery and negligence. As relevant to this
appeal, she alleged that Palazzola used excessive force in placing her in
handcuffs while she was in custody, thereby causing her to suffer, among other 18‐1378 Cugini v. City of New York, Palazzola
things, permanent nerve damage to her wrist. On the defendantsʹ motion for
summary judgment, the district court (Sterling Johnson, Jr., Judge) assumed
without deciding that the plaintiff had established her constitutional claim. It
granted the defendantsʹ motion for summary judgment, however, on the ground
that Palazzola was entitled to qualified immunity because his behavior did not
constitute a violation of a clearly established constitutional right. Because it
dismissed the plaintiffʹs federal claim against Palazzola individually, the court
declined to exercise supplemental jurisdiction over the plaintiffʹs state law claims
against the City. We conclude that the plaintiff sufficiently established her
constitutional claim for excessive force for purposes of surviving a motion for
summary judgment. However, because at the time of the plaintiffʹs arrest
Palazzolaʹs actions did not violate clearly established constitutional law, the
district court correctly concluded that his actions were protected by qualified
immunity and granted summary judgment on that basis. Accordingly, the
district courtʹs judgment is:
AFFIRMED.
SCOTT A. KORENBAUM (Jason Leventhal, Leventhal Law Group, P.C., Brooklyn, NY,
2 18‐1378 Cugini v. City of New York, Palazzola
on the brief), New York, NY, for Plaintiff‐ Appellant. DIANA LAWLESS (Zachary W. Carter, Richard Dearing, Scott Shorr, on the brief), Corporation Counsel of the City of New York, New York, NY, for Defendants‐ Appellees. SACK, Circuit Judge:
On June 26, 2014, the plaintiff‐appellant Donna Cugini voluntarily
surrendered to police custody in Staten Island, New York, in connection with a
misdemeanor complaint of domestic stalking and harassment filed against her by
her estranged sister. During her subsequent temporary detention, she was
handcuffed, suffering serious bodily injury as a result. She brought this action in
the United States District Court for the Eastern District of New York against the
City of New York and the police officer who physically restrained her while she
was in custody, Officer Christopher Palazzola, in his individual capacity. She
asserted a federal claim against Palazzola, under the Fourth and Fourteenth
Amendments pursuant to 42 U.S.C. § 1983, alleging that he used excessive force
when handcuffing her, thereby causing her to suffer, among other things,
permanent nerve damage to her wrist. She also made supplemental state law
claims of assault and battery and negligence against the City of New York.
3 18‐1378 Cugini v. City of New York, Palazzola
On the defendantsʹ motion for summary judgment, the district court
(Sterling Johnson, Jr., Judge) assumed without deciding that Cugini had
established her constitutional claim. The court concluded, however, that
Palazzolaʹs actions did not violate a clearly established constitutional right, in
part because Cugini gave only brief physical and non‐verbal manifestations of
her discomfort while handcuffed, and thus failed to alert Palazzola sufficiently to
her distress. The district court concluded that Palazzola was therefore entitled to
qualified immunity and granted summary judgment on that basis. After
dismissing Cuginiʹs federal claim, the district court declined to exercise
supplemental jurisdiction over her state law claims against the City.
On appeal, Cugini argues that the district court thus erred. She contends
that Palazzola violated her clearly established constitutional right by using force
against her that was excessive within the meaning of the Fourth Amendment.
She also asserts that because she has demonstrated that her federal law claim
was wrongly dismissed, she should be permitted to pursue her state law claims
against the City in federal court.
Under Graham v. Connor, 490 U.S. 386 (1989), we review a plaintiffʹs
excessive force claim under the Fourth Amendment standard of objective
4 18‐1378 Cugini v. City of New York, Palazzola
reasonableness to assess whether an officerʹs conduct was appropriate in light of
the facts and circumstances confronting him. Id. at 397. To determine whether
the amount of force an officer used was reasonable, we balance an individualʹs
Fourth Amendment interests against countervailing governmental interests,
including the severity of the crime and whether the suspect poses a safety or
flight risk or resists arrest. Id. at 396. A plaintiff must also demonstrate that the
officer was made reasonably aware that the force used was excessive. See
Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015) (objective reasonableness
determination must be made ʺfrom the perspective of a reasonable officer on the
scene, including what the officer knew at the time.ʺ) A plaintiff satisfies this
requirement if either the unreasonableness of the force used was apparent under
the circumstances, or the plaintiff signaled her distress, verbally or otherwise,
such that a reasonable officer would have been aware of her pain, or both. See id.
We conclude that the plaintiff has sufficiently established her
constitutional claim for purposes of surviving a motion for summary judgment.
A reasonable jury could find that Palazzolaʹs actions were objectively
unreasonable in light of, inter alia, the minor nature of the plaintiffʹs alleged
crime, the circumstances of her arrest, and the fact that the plaintiff posed no
5 18‐1378 Cugini v. City of New York, Palazzola
apparent risk of flight or physical threat to the police or others. The defendant
was also reasonably made aware of the plaintiffʹs pain, both as a result of her
signs of distress—her repeated audible, if not verbal, expressions of pain—and
because the unreasonableness of the force used by the defendant was apparent
under the circumstances.
Nevertheless, because at the time of the defendantʹs actions it was not
clearly established law that a plaintiff who did not verbally complain or request
to have her handcuffs adjusted or removed, or both, could nevertheless recover
on a handcuffing‐based excessive force claim, the defendant was entitled to
qualified immunity. The district court therefore correctly granted the
defendantsʹ motion for summary judgment on that ground.
Factual Background
We summarize the facts of this case ʺresolving all ambiguities and drawing
all factual inferences in plaintiff[ʹs] favor as the non‐moving party,ʺ as we must in
reviewing the grant of a motion for summary judgment. Anthony v. City of New
York, 339 F.3d 129, 134 (2d Cir. 2003) (citation omitted).
6 18‐1378 Cugini v. City of New York, Palazzola
The plaintiff‐appellant, Donna Cugini, was at all relevant times a 58‐year
old nursing coordinator residing in Staten Island (Richmond County), New York.
The defendant‐appellee, Officer Christopher Palazzola, was at all relevant times
a domestic violence prevention officer for the New York City Police Department
assigned to the 121st Precinct on Staten Island.
On June 26, 2014, Cugini voluntarily surrendered to police custody at the
121st Precinct, as arranged by her attorney, in connection with a misdemeanor
complaint of domestic stalking and harassment filed by her estranged sister.
When Cugini arrived at the precinct, Palazzola handcuffed her, processed her
arrest, and led her to a holding cell, where he removed her handcuffs.1
Some two hours later, Palazzola returned to the plaintiffʹs holding cell to
move her to Staten Island Central Booking located inside the 120th Precinct
stationhouse (ʺCentral Bookingʺ). He instructed her to step out of her cell and
place her hands behind her back. Although she readily complied, Palazzola
grabbed her arms, twisted her wrists into a ʺweird position,ʺ and handcuffed her
ʺvery tight.ʺ Cugini Dep. June 7, 2016 (ʺCugini Dep.ʺ), 13‐14, J. App. 55‐56. She
1 Cugini asserts no claims in this litigation based on her initial handcuffing.
7 18‐1378 Cugini v. City of New York, Palazzola
said ʺouch,ʺ and her body shuddered. Id. at 14, J. App. 56. In response,
Palazzola threatened her—ʺdonʹt make me hurt youʺ—and tightened her
handcuffs further. Id. at 15‐18, J. App. 57‐60. The plaintiff again reacted, either
exclaiming ʺowʺ or uttering a ʺcry.ʺ Id. at 18, J. App. 60. Once the plaintiff was
handcuffed, Palazzola moved her to the rear of a police car and drove her to
Central Booking. Approximately 40 minutes elapsed between the time Palazzola
handcuffed Cugini and their arrival at Central Booking. During that time, the
plaintiff did not otherwise inform Palazzola that her handcuffs were causing her
pain or ask that they be adjusted, refraining from doing so, she testified, because
she was ʺtoo scared.ʺ Cugini Examination Aug. 31, 2015, 37, J. App. 187.
Once they arrived at Central Booking, Palazzola attempted to remove
Cuginiʹs handcuffs. She felt Palazzola ʺrip the cuffsʺ and continue to tighten,
rather than loosen, them. Cugini Dep. 24‐25, J. App. 66‐67. A nearby officer saw
that Palazzola had put the handcuffs on backwards. Palazzola continued to
ʺfiddl[e] around with themʺ and to make the handcuffs ʺtighter and tighter.ʺ Id.
at 25, J. App. 67. The other officer called for someone else to remove them.
Immediately upon removal of her handcuffs, Cugini felt pain in her wrists.
When she was released from custody later that day, she went directly to the
8 18‐1378 Cugini v. City of New York, Palazzola
emergency room at Richmond University Medical Center. Soon thereafter, she
nevertheless began experiencing pain, numbness, and twitching in her arms.
She continues to suffer from what has been diagnosed as permanent nerve
damage to her right wrist, and has lost the ability to perform many basic
household functions as a result.
In January 2015, all of the charges against the plaintiff were dismissed by
New York State for lack of evidence.
Procedural History
On September 23, 2015, the plaintiff filed a complaint in the United States
District Court for the Eastern District of New York against Officer Palazzola (the
ʺdefendantʺ) in his individual capacity and the City of New York (the ʺCityʺ;
together with the defendant, the ʺdefendantsʺ). She alleged a federal claim for
excessive force under the Fourth and Fourteenth Amendments pursuant to 42
U.S.C. § 1983 against Palazzola. She also alleged supplemental state law claims
for assault and battery and negligence against the City.
On February 2, 2018, the defendants moved for summary judgment. They
argued that the plaintiff could not recover on her excessive force claim against
9 18‐1378 Cugini v. City of New York, Palazzola
Palazzola because she lacked proof that she had complained about her handcuffs
at the time or requested that they be adjusted. And they asserted that even if the
plaintiffʹs constitutional rights had been violated, Palazzola was entitled to
qualified immunity because a reasonable officer could conclude that he acted
properly under the circumstances. Finally, they argued that because the
plaintiffʹs federal law claim should be dismissed, the district court should decline
to exercise supplemental jurisdiction over her state law claims against the City.
The plaintiff opposed the motion, contending that her shudders and utterances
of ʺouchʺ and ʺowʺ as her handcuffs were being tightened were ʺobvious and
clear expressions of pain and made [Palazzola] aware that [her] handcuffs were
too tight and were needlessly causing pain and injury.ʺ Pl. Mem. of Law in Opp.
to Sum. J., Feb. 2, 2018, at 8 (Dkt. #30), J. App. 6. She argued that Palazzola
should not be entitled to qualified immunity solely on the basis of her failure to
verbalize her pain because he ʺcaused [her] silence by intimidating [her] with [a]
threat.ʺ Id. at 9.2
2 In her opposition to summary judgment, Cugini also voluntarily dismissed her state‐ law negligence claim against the City.
10 18‐1378 Cugini v. City of New York, Palazzola
On April 10, 2018, the district court granted the defendantsʹ motion for
summary judgment. As a preliminary matter, the court briefly addressed the
substance of the plaintiffʹs constitutional claim. In response to the defendantsʹ
argument that the plaintiff could not prevail on her claim because ʺshe never
asked that the handcuffs be loosened, or otherwise clearly communicated that
they were causing her pain,ʺ the court wrote that such a proposition
ʺoversimplifies the inquiry.ʺ Cugini v. City of New York, No. 15‐CV‐5517 (SJ) (ST),
2018 WL 1730334, at *2 n.1, 2018 U.S. Dist. LEXIS 60741, at *5 n.1 (E.D.N.Y. Apr.
10, 2018) (internal quotation marks omitted). It further noted that it was ʺreticent
to impose a standard that would deny a plaintiff her day in court simply because
she did not utter the magic words.ʺ Id. ʺSuch a result,ʺ the court reasoned, ʺis
not in the spirit of the fact‐specific inquiry the Fourth Amendment necessitates.ʺ
Id. For purposes of its qualified immunity analysis, however, the district court
assumed without deciding that the plaintiff had suffered a Fourth Amendment
injury and did not address the issue further.
The district court then concluded that Palazzola was entitled to summary
judgment on the ground of qualified immunity. ʺNothing in the facts indicates
that [Palazzola] used force beyond that which was necessary to handcuff an
11 18‐1378 Cugini v. City of New York, Palazzola
arrestee.ʺ Cugini, 2018 WL 1730334, at *3, 2018 U.S. Dist. LEXIS 60741, at *6.
Moreover, the plaintiffʹs ʺbrief physical and verbal manifestations of tepid
discomfort were followed by a prolonged period free from any such
expressions.ʺ Id. Under these circumstances, the court thought, reasonable
officers could differ as to the legality of the defendantʹs conduct. The court
therefore concluded that Palazzola was entitled to qualified immunity and
granted summary judgment with respect to the plaintiffʹs excessive force claim
against him. After dismissing the plaintiffʹs only federal claim, the district court
declined to exercise supplemental jurisdiction over her state law claims against
the City.
Cugini argues on appeal that the district court erred by granting Palazzola
qualified immunity because a reasonable jury could conclude that the defendant
violated her clearly established Fourth Amendment rights by applying her
handcuffs with excessive force, while aware that he was doing so, resulting in
permanent nerve damage to her wrist. The plaintiff also contends that because
her federal law claim against Palazzola is viable, she should be permitted to
pursue her state law claims against the City in federal district court.
DISCUSSION
12 18‐1378 Cugini v. City of New York, Palazzola
I. Standard of Review
ʺWe review a district courtʹs grant of summary judgment de novo to
determine whether the district court properly concluded that there was no
genuine dispute as to any material fact, such that the moving party was entitled
to judgment as a matter of law.ʺ Myers v. Patterson, 819 F.3d 625, 632 (2d Cir.
2016). We do so ʺresolving all ambiguities and drawing all factual inferences in
plaintiff[ʹs] favor as the non‐moving party.ʺ Anthony, 339 F.3d at 134.
When a public official such as Palazzola invokes qualified immunity at the
summary judgment stage, we ʺmust consider two questions: (1) whether the
evidence, viewed in the light most favorable to the plaintiff, makes out a
violation of a statutory or constitutional right, and (2) whether that right was
clearly established at the time of the alleged violation.ʺ Tracy v. Freshwater, 623
F.3d 90, 96 (2d Cir. 2010).3 In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme
Court concluded that we must conduct these inquiries sequentially. Id. at 201.4
3We sometimes discuss the doctrine of qualified immunity, as we did in Tracy, in terms of the ʺviolation of a statutory or constitutional right.ʺ 623 F.3d at 96 (emphasis added). On this appeal, it is the constitutional rights of the plaintiff that are at issue.
4 The Saucier test was later described by the Supreme Court thus:
13 18‐1378 Cugini v. City of New York, Palazzola
In Pearson v. Callahan, 555 U.S. 223 (2009), however, it modified the Saucier two‐
step procedure so that we are now ʺpermitted to exercise [our] sound discretion
in deciding which of these two prongs of the qualified immunity analysis should
be addressed first in light of the circumstances in the particular case at hand.ʺ Id.
at 236. Here, we address them consecutively because the case involves
ʺquestions that do not frequently arise in cases in which a qualified immunity
defense is unavailable.ʺ Id.; see also Berg v. Kelly, 897 F.3d 99, 106 (2d Cir. 2018)
(commenting that it is ʺworthwhileʺ to exercise discretion in addressing both
prongs of the qualified immunity analysis under similar circumstances (quoting
Pearson, 555 U.S. at 242)). Accordingly, we first ask whether, taking the facts in
the light most favorable to the plaintiff, she has sufficiently established a
constitutional claim of excessive force.
II. Excessive Force
In Saucier [v. Katz, 533 U.S. 194 (2001)], this Court mandated a two‐step sequence for resolving government officialsʹ qualified immunity claims. First, a court must decide whether the facts that a plaintiff has alleged . . . or shown . . . make out a violation of a constitutional right. 533 U.S.[] at 201. Second, if the plaintiff has satisfied this first step, the court must decide whether the right at issue was ʹclearly establishedʹ at the time of defendantʹs alleged misconduct. [Id.]
Pearson v. Callahan, 555 U.S. 223, 232 (2009).
14 18‐1378 Cugini v. City of New York, Palazzola
The plaintiff asserts that Palazzola violated her constitutional rights by
using excessive force in handcuffing her while she was in custody. The district
court declined to decide the plaintiffʹs constitutional claim, moving directly to its
analysis of qualified immunity instead. Addressing that issue on review
nonetheless, as we are permitted to do under Pearson, we conclude that the
plaintiff has sufficiently established a constitutional claim for excessive force.
1. Legal Standard
In Graham v. Connor, 490 U.S. 386 (1989), the Supreme Court concluded
that where a claim for excessive force ʺarises in the context of an arrest or
investigatory stop of a free citizen, it is most properly characterized as one
invoking the protections of the Fourth Amendment.ʺ Id. at 394. It is therefore
analyzed under the Fourth Amendmentʹs ʺreasonablenessʺ standard, rather than
under the subjective ʺsubstantive due processʺ approach, id. at 396‐97, ʺwhich
requires consideration of whether the individual officers acted in good faith or
maliciously and sadistically for the very purpose of causing harm,ʺ id. at 397
(internal quotation marks omitted). Because ʺthe right to make an arrest or
investigatory stop necessarily carries with it the right to use some degree of
physical coercion or threat thereof to effect it,ʺ determining whether the amount
15 18‐1378 Cugini v. City of New York, Palazzola
of force an officer used is reasonable ʺrequires a careful balancing of the nature
and quality of the intrusion on the individualʹs Fourth Amendment interests
against the countervailing governmental interests at stake.ʺ Id. at 396 (citations
and internal quotation marks omitted). The proper application of the
reasonableness standard, according to the Graham Court, ʺrequires careful
attention to the facts and circumstances of each particular case, includingʺ (1)
ʺthe severity of the crime at issue,ʺ (2) ʺwhether the suspect poses an immediate
threat to the safety of the officers or others,ʺ and (3) ʺwhether [the suspect] is
actively resisting arrest or attempting to evade arrest by flight.ʺ Id. And the
Court reiterated that the reasonableness inquiry is an ʺobjective one.ʺ Id. at 397.
It requires a court to view officersʹ actions ʺin light of the facts and circumstances
confronting them, without regard to their underlying intent or motivationʺ or
ʺthe 20/20 vision of hindsight.ʺ Id. at 396‐97 (citation omitted).
Graham thus stands for the proposition that a government officer may not
intrude on a personʹs Fourth Amendment rights by employing a degree of force
beyond that which is warranted by the objective circumstances of an arrest. And
we decided long ago that the objective reasonableness standard established in
Graham applies to actions taken with respect to a person who asserts, as does the
16 18‐1378 Cugini v. City of New York, Palazzola
plaintiff here, a claim for excessive force after she has been arrested and
detained, but ʺprior to the time when [she] is arraigned or formally charged, and
remains in the custody (sole or joint) of the arresting officer.ʺ Powell v. Gardner,
891 F.2d 1039, 1044 (2d Cir. 1989).
In Esmont v. City of New York, 371 F. Supp. 2d 202 (E.D.N.Y. 2005), the
United States District Court for the Eastern District of New York concluded that
placing handcuffs on an arrestee in a manner that causes injury may ʺconstitute
excessive force in violation of the Fourth Amendment.ʺ Id. at 215 (citation
omitted). And it provided three evidentiary factors for courts to consider in
evaluating the reasonableness of a handcuffing: that ʺ(1) the [arresteeʹs]
handcuffs were unreasonably tight; (2) the defendants ignored the arresteeʹs
pleas that the handcuffs were too tight; and (3) the degree of injury to the
[arresteeʹs] wrists.ʺ Id. at 215. Following Esmont, evidence of these factors has
often been employed by other district courts in this Circuit to determine whether
a plaintiff has sufficiently alleged a claim for excessive force in the process of
handcuffing.5
5See, e.g., Pizarro v. Ponte, No. 17 Civ. 4412 (LGS), 2019 WL 568875, at *6, 2019 U.S. Dist. LEXIS 22767, at *13‐14 (S.D.N.Y. Feb. 11, 2019); Othman v. City of New York, No. 13 Civ.
17 18‐1378 Cugini v. City of New York, Palazzola
These evidentiary factors may, indeed, prove useful to a district court in
assessing the soundness of a handcuffing‐based excessive force claim. The ʺtest
of reasonableness under the Fourth Amendment,ʺ however, ʺis not capable of
precise definition or mechanical application.ʺ Graham, 490 U.S. at 396 (internal
quotation marks omitted). A courtʹs reasonableness analysis is not limited to a
factual checklist; it must instead be guided by a ʺcareful balanc[e]ʺ between the
ʺnature and quality of the intrusionʺ and the ʺcountervailing government
interests at stakeʺ under the circumstances. Id. (citation and internal quotation
marks omitted).
Thus a plaintiff asserting a claim for excessive force need not always
establish that she alerted an officer to the fact that her handcuffs were too tight or
causing pain. The question is more broadly whether an officer reasonably
should have known during handcuffing that his use of force was excessive. A
plaintiff satisfies this requirement if either the unreasonableness of the force used
4771, 2018 WL 1701930, at *7, 2018 U.S. Dist. LEXIS 59967, at *21 (E.D.N.Y. Mar. 31, 2018); Ali v. Ramos, No. 16‐CV‐01994 (ALC), 2018 WL 1353210, at *5, 2018 U.S. Dist. LEXIS 42489, at *10‐12 (S.D.N.Y. Mar. 14, 2018); Lloyd v. City of New York, 246 F. Supp. 3d 704, 724 (S.D.N.Y. 2017); Case v. City of New York, 233 F. Supp. 3d 372, 385 (S.D.N.Y. 2017); Barcomb v. Kraeger, No. 14‐CV‐1159 (JBA), 2016 WL 2644885, at *5, 2016 U.S. Dist. LEXIS 60536, at *14‐17 (D. Conn. May 5, 2016).
18 18‐1378 Cugini v. City of New York, Palazzola
was apparent under the circumstances, or the plaintiff signaled her distress,
verbally or otherwise, such that a reasonable officer would have been aware of
her pain, or both. See Stainback v. Dixon, 569 F.3d 767, 772 (7th Cir. 2009) (ʺ[I]n
some cases, the fact that an act will cause pain or injury will be clear from the
nature of the act itself.ʺ); Cortez v. McCauley, 478 F.3d 1108, 1129 (10th Cir. 2007)
(en banc) (noting that the plaintiff must allege that ʺan officer ignored [her] timely
complaints (or was otherwise made aware) that the handcuffs were too tightʺ)
(emphasis added); Liiv v. City of Coeur DʹAlene, 130 F. Appʹx 848, 852 (9th Cir.
2005) (recognizing excessive force claims may arise where ʺplaintiffs either
suffered damage to their wrists as a consequence of the handcuffs or the plaintiffs
complained to the officers about the handcuffs being too tightʺ) (emphasis
added). And, as with all aspects of a Fourth Amendment inquiry, an officerʹs
awareness is ʺjudged from the perspective of a reasonable officer on the scene.ʺ
Graham, 490 U.S. at 396 (citation omitted).
We conclude that where an officerʹs use of force in handcuffing is plainly
unreasonable under the circumstances or where a plaintiff manifests clear signs
of her distress—verbally or otherwise—a fact finder may decide that the officer
19 18‐1378 Cugini v. City of New York, Palazzola
reasonably should have known that his use of force was excessive for purposes
of establishing a Fourth Amendment violation.
2. Application
We conclude that each of the Graham factors weighs decidedly in the
plaintiffʹs favor here. First, the crime at issue was a relatively minor one: the
misdemeanor offense of stalking and harassing a family member from whom she
was estranged. Second, there is no indication that the plaintiff posed a safety
threat, immediate or otherwise, to Palazzola or anyone else. To the contrary, she
voluntarily surrendered to police custody at her local precinct as instructed by
her attorney. Third, she did not try to flee or resist Palazzolaʹs attempt to
handcuff her. She was in police custody at the time of his alleged abuse and
complied with all of his directives while there. Under these circumstances, a
reasonable jury could find that the severity of Palazzolaʹs intrusion—continuing
to tighten the plaintiffʹs handcuffs after she expressed physical pain and using
force strong enough to cause her permanent injury—was unjustified. See, e.g.,
Payne v. Pauley, 337 F.3d 767, 778–79 (7th Cir. 2003) (finding that officerʹs ʺforce in
arresting a woman who was not threatening to harm the police officer or anyone
else at the scene, was not resisting or evading arrest, was not attempting to flee,
20 18‐1378 Cugini v. City of New York, Palazzola
and was charged with such minor offenses, was not objectively reasonableʺ);
Kopec v. Tate, 361 F.3d 772, 777‐78 (3d Cir. 2004) (deciding that overly tight
handcuffing of arrestee for ten minutes leading to permanent wrist injury was
unreasonable under ʺbenign circumstancesʺ); Saunders v. Duke, 766 F.3d 1262,
1264 (11th Cir. 2014) (ʺ[A] police officer violates the Fourth Amendment . . . if he
or she uses gratuitous and excessive force against a suspect who is under control,
not resisting, and obeying commands.ʺ)
A reasonable officer on the scene should have known that the force used
was excessive. A reasonable jury could find that the degree of force employed by
Palazzola was, objectively considered, disproportionate and unwarranted under
the circumstances. Moreover, Cugini directly communicated her distress to
Palazzola through her pained utterances and bodily shudders while he was
handcuffing her. The defendant responded by threatening further harm—ʺdonʹt
21 18‐1378 Cugini v. City of New York, Palazzola
make me hurt youʺ6—with the likely goal of silencing her complaints.7 He then
continued to tighten her handcuffs, and Cugini again evidenced her physical
discomfort. Under these circumstances, the defendant should reasonably have
known that his use of force was excessive, both because the plaintiff clearly
signaled her distress and because the excessive nature of the force used was
6 The defendant argues that Cugini should not be permitted to rely on the threat that she alleges he made in asserting her excessive force claim because doing so would require the court to assess his subjective motivation. We are indeed not permitted to take Palazzolaʹs ʺunderlying intent or motivationʺ simpliciter into account in our analysis of the plaintiffʹs constitutional claim. Graham, 490 U.S. at 397. But neither are we permitted to ignore ʺthe facts and circumstances of [this] particular case.ʺ Id. Viewed in the light most favorable to Cugini, the facts here include a law enforcement officerʹs threat to the plaintiff with the apparent goal, and ultimate effect, of silencing her cries of distress, and a realization of that threat through the subsequent tightening of the plaintiffʹs handcuffs. A reasonable jury could find that Palazzolaʹs threatened harm reflected not only his subjective motivation, but also, objectively, whether the force used was excessive and whether he was reasonably made aware of the plaintiffʹs pain. A reasonable jury could also find that it was unreasonable for Palazzola to assume that the plaintiff was all right based on her silence following the handcuffing, in light of the fact that the plaintiff may only have remained silent because of Palazzolaʹs threat of further pain. It may therefore to that extent be considered.
7Other courts have noted the risk that officer intimidation may suppress the complaints of an arrested person. See Warren v. Williams, No. Civ.A. 304CV537 (JCH), 2006 WL 860998, at *37, 2006 U.S. Dist. LEXIS 18900, at *113‐14 (D. Conn. Mar. 31, 2006) (where officers made threats of further force, and plaintiff failed to complain out of fear, ʺgeneral complaints about the handcuffs [from others] could have reasonably put the defendants on notice that they should check and adjust the cuffs of the occupantsʺ); see also Fry v. Smoker, No. Civ.A. 11‐3015, 2012 WL 1622656, at *6, 2012 U.S. Dist. LEXIS 64939, at *16‐17 (E.D. Pa. May 9, 2012) (noting that there are ʺnumerous reasons why arrestees may not complain to arresting officers that their handcuffs are too tight, such as intimidation by the officerʺ).
22 18‐1378 Cugini v. City of New York, Palazzola
apparent.
We conclude, then, that a reasonable jury could find that the defendantʹs
actions were objectively unreasonable under the circumstances and that Cugini
has therefore established a Fourth Amendment violation for present purposes.
III. Qualified Immunity
The district court granted summary judgment on the ground that
irrespective of whether Palazzola violated a constitutional right of the plaintiff,
he was entitled to qualified immunity. On appeal, the plaintiff argues that there
was clearly established law at the time of the relevant events that ʺthe use of
entirely gratuitous force against a restrained and unresisting arrestee by an
officer is unreasonable, and therefore, excessive within the meaning of the Fourth
Amendment.ʺ Pl. Br. 18. The defendant responds that the facts as the plaintiff
alleges them did not constitute a violation of clearly established law because,
according to the allegations, she ʺdid not alert [him] that he could not tighten, or
had to loosen, [her] handcuffs.ʺ Def. Br. 7.
To determine whether a defendant officer is entitled to qualified immunity
from a Fourth Amendment claim against him on a motion for summary
judgment, we are to assess whether ʺunder clearly established law, every
23 18‐1378 Cugini v. City of New York, Palazzola
reasonable officer would have concluded that [the defendantʹs] actions violated
[the plaintiffʹs] Fourth Amendment rights in the particular circumstance
presented by the uncontested facts and the facts presumed in [the plaintiffʹs]
favor.ʺ Brown v. City of New York, 862 F.3d 182, 190 (2d Cir. 2017). In other
words, summary judgment for the defendant is required where ʺthe only
conclusion a rational jury could reach is that reasonable officers would disagree
about the legality of the [defendantʹs] conduct under the circumstances.ʺ Lennon
v. Miller, 66 F.3d 416, 421 (2d Cir. 1995). As a general rule, to determine whether
a right is clearly established, we consider ʺSupreme Court decisions, our own
decisions, and decisions from other circuit courts.ʺ Simon v. City of New York, 893
F.3d 83, 92 (2d Cir. 2018); see also Ashcroft v. al‐Kidd, 563 U.S. 731, 746 (2011)
(ʺ[Q]ualified immunity is lost when plaintiffs point either to cases of controlling
authority in their jurisdiction at the time of the incident or to a consensus of cases
of persuasive authority such that a reasonable officer could not have believed
that his actions were lawful.ʺ) (internal quotation marks omitted). That is not to
say, however, that courts ʺrequire a case directly on point, but existing precedent
must have placed the statutory or constitutional question beyond debate.ʺ al‐
Kidd, 563 U.S. at 741.
24 18‐1378 Cugini v. City of New York, Palazzola
At the time of the plaintiffʹs arrest, the use of excessive force in
handcuffing was prohibited by clearly established constitutional law. While we
had yet to formally hold that a defendant may violate a plaintiffʹs Fourth
Amendment rights in a handcuffing‐based excessive force claim, we had long
rejected the principle that handcuffing is ʺper se reasonable.ʺ Soares v. State of
Conn., 8 F.3d 917, 921 (2d Cir. 1993); see Johnson v. Turnbill, 715 F. Appʹx 84, 85 (2d
Cir. 2018) (summary order) (recognizing that ʺexcessively tight handcuffing that
causes injury can constitute excessive forceʺ under the Fourth Amendment
(quoting Shamir v. City of New York, 804 F.3d 553, 557 (2d Cir. 2015)). And a
consensus existed among our sister circuits that unduly tight handcuffing can
constitute excessive force in violation of the Fourth Amendment.8 That was
enough to clearly establish in this Circuit that an officerʹs use of excessive force
8See, e.g., Calvi v. Knox Cty., 470 F.3d 422, 428 (1st Cir. 2006); Kopec, 361 F.3d at 777‐78 (3d Cir. 2004); Heitschmidt v. City of Houston, 161 F.3d 834, 839‐40 (5th Cir. 1998); Lyons v. City of Xenia, 417 F.3d 565, 575‐76 (6th Cir. 2005); Herzog v. Vill. of Winnetka, 309 F.3d 1041, 1043 (7th Cir. 2002); Hanig v. Lee, 415 F.3d 822, 824 (8th Cir. 2005); Liiv, 130 F. Appʹx at 852 (9th Cir. 2005); Vondrak v. City of Las Cruces, 535 F.3d 1198, 1208‐09 (10th Cir. 2008). But see Brown v. Gilmore, 278 F.3d 362, 369 (4th Cir. 2002) (ʺ[A] standard procedure such as handcuffing would rarely constitute excessive force where the officers were justified . . . in effecting the underlying arrest.ʺ).
25 18‐1378 Cugini v. City of New York, Palazzola
during handcuffing could give rise to a Fourth Amendment claim for excessive
force.9
Even assuming that the right to be free from excessive force during
handcuffing was then clearly established, however, we cannot rest our ultimate
conclusion as to immunity on a right that was clearly established only at ʺa high
level of generality.ʺ al‐Kidd, 563 U.S. at 742. Our analysis must instead be
ʺparticularizedʺ to the facts of the case. Anderson v. Creighton, 483 U.S. 635, 640
(1987). We must therefore focus more narrowly on whether, at the time of
Cuginiʹs arrest, clearly established law required an officer to respond to a
complaint by a person under arrest where, as here, that person exhibited only
non‐verbal aural and physical manifestations of her discomfort.
We conclude that at the time of the plaintiffʹs arrest, there was no such
clearly established law. It remained an open question in this Circuit whether a
plaintiff asserting an excessive force claim was required to show evidence that an
9See al‐Kidd, 563 U.S. at 746 (noting that consensus of cases of persuasive authority may create clearly established law); Scott v. Fischer, 616 F.3d 100, 105 (2d Cir. 2010) (noting that even where this court has ʺnot explicitly held a law or course of conduct to be unconstitutional, the unconstitutionality of that law or course of conduct will nonetheless be treated as clearly established if decisions by this or other courts clearly foreshadow a particular ruling on the issue, even if those decisions come from courts in other circuitsʺ) (citation and internal quotation marks omitted).
26 18‐1378 Cugini v. City of New York, Palazzola
officer was made reasonably aware of her pain by means of an explicit verbal
complaint. And our limited case law on the subject appeared to look to the
presence or absence of such a complaint as a significant factor, if not a
prerequisite to liability, in our Fourth Amendment analysis. See Shamir, 804 F.3d
at 555, 557 (inferring a handcuffing‐based excessive force claim from a complaint
where the complaint alleged that the plaintiff did make verbal complaints,
repeatedly asked that the handcuffs be loosened, complained that the handcuffs
were ʺreally tightʺ and ʺreally hurt,ʺ and showed police officers his ʺreally
discolored,ʺ ʺreally swollenʺ hands); cf. Arroyo v. City of New York, 683 F. Appʹx
73, 75 (2d Cir. 2017) (summary order) (affirming grant of summary judgment for
defendants on handcuffing‐based excessive force claim where plaintiff ʺalleged
no physical injury and never asked for the handcuffs to be removedʺ). Similarly,
there was no such consensus in federal circuits outside ours whether a verbal
complaint was necessary, so we need not—we cannot—come to a conclusion as
to the consequences of any such consensus had indeed there been one.10
10Some circuit courts required that a plaintiff make a formal complaint to establish an excessive force claim. See Lyons, 417 F.3d at 575‐76 (ʺIn order to reach a jury on [an excessive force] claim, the plaintiff . . . must show that officers ignored plaintiffʹs complaints that the handcuffs were too tightʺ); Rodriguez v. Farrell, 294 F.3d 1276, 1279
27 18‐1378 Cugini v. City of New York, Palazzola
Before today, then, the law at least left room for reasonable debate as to
whether the plaintiff was required to alert the defendant to her pain, and, if so,
whether her non‐verbal behavior was sufficient to do so. Lennon, 66 F.3d at 421.
Although the plaintiff has persuasively argued that the defendant used undue
force in handcuffing her, a reasonable officer under these circumstances could
have concluded at the time of her arrest that he was not required to respond to her
non‐verbal indications of discomfort and pain. We therefore conclude that the
plaintiff has failed to establish that the defendant violated a clearly established
constitutional right and that the district court therefore correctly granted the
defendantsʹ motion for summary judgment on that basis.11 We also conclude,
however, that officers can no longer claim, as the defendant did here, that they
are immune from liability for using plainly unreasonable force in handcuffing a
n.4 (11th Cir. 2002) (tight handcuffing claim failed where plaintiff ʺmoaned or gruntedʺ in pain while in transport to the police station but never asked officer to adjust his handcuffs). Others, as discussed above, permitted an excessive force claim to reach a jury, so long as the officer was otherwise made aware that the handcuffs of the person under arrest were too tight. See Stainback, 569 F.3d at 772; Cortez, 478 F.3d at 1129; Liiv, 130 F. Appʹx at 852.
Because we conclude that the plaintiffʹs federal law claim was properly dismissed, we 11
decline to reinstate her state law claims against the City.
28 18‐1378 Cugini v. City of New York, Palazzola
person or using force that they should know is unreasonable based on the
arresteeʹs manifestation of signs of distress on the grounds that the law is not
ʺclearly established.ʺ12
12We acknowledge the presence of an ʺelephant in the room.ʺ The plaintiff testified that, at the time of her arrest, she and Palazzola already had a hostile personal relationship. Cugini further testified that there had been a months‐long ʺintimateʺ relationship between her daughter and Palazzola that ended when Palazzola treated her violently. Cugini Dep. 37‐38, J. App. 79‐80. Palazzolaʹs mother and the plaintiffʹs estranged sister—the woman who filed the current complaint against the plaintiff— were friends. And shortly before Cuginiʹs arrest, Palazzola trespassed on her property while shouting her daughterʹs name. Cugini further testified that when she arrived at Central Booking, Palazzola, for no apparent reason, removed her prescription glasses while she was on the steps outside the precinct. Id. at 22, J. App. 64. She could barely see without them. Id. After another officer, observing the encounter, reprimanded Palazzola for doing so, he returned Cuginiʹs glasses to her. Id. at 23, J. App. 65. Palazzola testified to the contrary that he never had a romantic relationship with Cuginiʹs daughter; was unaware of his motherʹs relationship with Cuginiʹs sister; and conducted only regular ʺhome visitsʺ to Cuginiʹs dwelling prior to her arrest, during which he had a cordial conversation with her daughter. Palazzola Dep. June 2, 2016, 7, 53‐56, J. App. 269, 316‐18.
These serious, even tawdry, accusations and denials seem a far cry from those that may be expected to emerge in a typical confrontation between a law enforcement official and a person whom he is seeking to restrain. But their truth or falsity does not ultimately affect the outcome of this appeal. As we have explained, the subjective aspects of the defendantʹs behavior, his ʺunderlying intent or motivation,ʺ do not matter for purposes of assessing whether his behavior violated the plaintiffʹs Fourth Amendment rights. Graham, 490 U.S. at 397. We therefore conclude, as indeed the plaintiff has effectively conceded in her presentation of this case on appeal, that they are not relevant to our legal assessment of the defendantʹs conduct.
29 18‐1378 Cugini v. City of New York, Palazzola
CONCLUSION
While we recognize that the plaintiff has sufficiently demonstrated, for
purposes of surviving a motion for summary judgment, a violation of her
constitutional right to be free from excessive force during handcuffing, we
conclude that she has failed to establish that the defendant violated law that was
clearly established at the time of her arrest. The defendant was therefore entitled
to the protection of qualified immunity. Because we conclude that the plaintiffʹs
federal law claim was properly dismissed, we decline to reinstate her state law
claims. We have considered the partiesʹ remaining arguments on appeal and
conclude that they are without merit. The judgment of the district court is
therefore AFFIRMED.