Kopec v. Tate

• Court: Court of Appeals for the Third Circuit
• Decided: March 17, 2004
• Docket: 02-4188
• Status: Published

Opinion

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

3-17-2004

Kopec v. Tate Precedential or Non-Precedential: Precedential

Docket No. 02-4188

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Recommended Citation "Kopec v. Tate" (2004). 2004 Decisions. Paper 888. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/888

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL Walter F. Kawalec, III (argued) Marshall, Dennehey, Warner, Coleman UNITED STATES COURT OF & Goggin APPEALS 200 Lake Drive East, Suite 300 FOR THE THIRD CIRCUIT Cherry Hill, NJ 08002

Attorneys for Appellee Officer No. 02-4188 Tyrone Tate

MICHAEL KOPEC, OPINION OF THE COURT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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