Michael Kopec v. Tyrone Tate, Officer Township of Whitemarsh

361 F.3d 772, 2004 U.S. App. LEXIS 5024, 2004 WL 515495

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

Opinions

OPINION OF THE COURT

GREENBERG, Circuit Judge.

This matter comes on before this court on an appeal by plaintiff Michael Kopec (“Kopec”) from the district court’s order entered on October 22, 2002, granting summary judgment in favor of defendant Officer Tyrone Tate (“Officer Tate”) in this action principally brought under 42 U.S.C. § 1983 (“section 1983”). For the reasons stated herein, we hold, contrary to the district court, that Officer Tate is not entitled to qualified immunity on Kopec’s excessive force claim and therefore we will reverse the district court’s order granting summary judgment in his favor on that basis.

I. BACKGROUND

In the evening of February 2, 2000, Ko-pec and his girlfriend, Pamela Smith (whom Kopec later married), trespassed onto the frozen lake at the Sherry Lake Apartment Complex in Conshohocken (Whitemarsh Township), Montgomery County, Pennsylvania.¹ The lake, which was fenced off, was located on the property where Pamela Smith (now Pamela Ko-pec) rented an apartment. To gain access to the lake Kopec hopped over the fence and his girlfriend squeezed through an opening in it. The two then proceeded to frolic on the ice.² Officer Tate, who then arrived in response to an anonymous call, directed them to get off the lake, and the two complied.

Although Officer Tate did not intend to charge them with trespassing, he did seek to record their names, addresses, and phone numbers for his report and he advised Kopec that he needed this information for that purpose. Kopec nevertheless refused to provide this information, though Officer Tate repeatedly asked for it, and Kopec instructed his girlfriend not to do so either. Officer Tate became annoyed with Kopec and then arrested him for disorderly conduct, and handcuffed him behind his back.

Within about ten seconds of being handcuffed, Kopec began to lose feeling in his right hand and, as a consequence, asked Officer Tate to loosen the handcuffs, but Officer Tate did not do so. Kopec then asked if “this is what he does when people don’t give him information.” Officer Tate did not answer. A. 30.

Officer Tate took Kopec to his police car several feet away and left him alongside it as he went to interview Pamela Kopec, who was close by. As Officer Tate walked away, Kopec told him the pain was unbearable and begged him to loosen the handcuffs. Again, Officer Tate did not comply with Kopec’s request. Kopec began to faint from the pain caused by the handcuffs and then fell to the ground. He asked Officer Tate to remove the handcuffs because he had lost feeling in his right hand. Officer Tate said “I will be there in a minute,” and did not go to Kopec immediately. A. 31. Kopec asked him again either to loosen or remove the handcuffs while Kopec was groaning due to excruciating pain. Officer Tate heard Kopec, but took no steps to assist him. According to Kopec, it took Officer Tate about ten minutes from the time he had handcuffed Kopec finally to loosen the handcuffs.³ Kopec claims to have permanent nerve damage in his right wrist as a result of the handcuffing, for which a hand surgeon treated him for over one year.

Kopec concedes that he was trespassing in violation of 18 Pa. Cons.Stat. Ann. § 3503(b)(l)(iii) (West Supp.2003) and that Officer Tate lawfully was able to arrest and handcuff him. Nevertheless Kopec subsequently brought this action against Officer Tate, alleging that the officer’s acts violated section 1983 and were tortious under Pennsylvania law.

On Officer Tate’s motion the district court granted summary judgment in his favor on the basis that he had qualified immunity on claims Kopec asserted under section 1983 predicated on the First, Fourth and Fourteenth Amendments and that claims Kopec advanced under the Pennsylvania Tort Claims Act charging intentional, willful misconduct and intentional infliction of emotional distress were barred by the immunity provisions of that act in 42 Pa. Cons.Stat. Ann. §§ 8541 and 8545 (West 1998).⁴ Kopec appeals from the district court’s order but only with respect to his Fourth Amendment claim.⁵

II. JURISDICTION AND STANDARD OF REVIEW

A. Jurisdiction

The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, and 1367 in that the complaint alleged federal civil rights 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. § 1291.

B. Standard of Review

We exercise de novo review of the district court’s grant of summary judgment. See Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir.1996); Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.1995). Summary judgment is proper when the evidence shows “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In reviewing the record, we are required to view the inferences to be drawn from the underlying facts in the light most favorable to Kopec, as the party opposing the motion, and to take his allegations as true . when supported by proper proofs whenever these allegations conflict with those of Officer Tate. See Meritcare, Inc. v. St. Paul Mercury Ins. Co., 166 F.3d 214, 223 (3d Cir.1999).

III. DISCUSSION

A. Qualified Immunity on a Section 1983 Claim

42 U.S.C. § 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....

Thus, section 1983 provides a remedy for deprivations of rights established elsewhere in the Constitution or federal laws. Estate of Smith v. Marasco, 318 F.3d 497, 505 (3d Cir.2003); Kneipp, 95 F.3d at 1204.

Qualified immunity is intended to shield government officials performing discretionary functions, including police officers, “from liability from civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). A defendant has the burden to establish that he is entitled to qualified immunity. See Beers-Capitol v. Whetzel, 256 F.3d 120, 142 n. 15 (3d Cir.2001).

The Supreme Court held in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), that a ruling on qualified immunity must be undertaken using a two-step inquiry. See id. at 200-01, 121 S.Ct. at 2155-56. First, the court must consider whether the facts alleged, taken in the light most favorable to the plaintiff, show that the officer’s conduct violated a constitutional right. See id. at 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 first task is to assess whether the plaintiffs allegations are sufficient to establish the violation of a constitutional or statutory right at all.”) (quoting Gruenke v. Seip, 225 F.3d 290, 298 (3d Cir.2000)). “If the plaintiff fails to make out a constitutional violation, the qualified immunity inquiry is at an end; the officer is entitled to immunity.” Bennett v. Murphy, 274 F.3d 133, 136 (3d Cir.2002).

If, however, “a violation could be made out on a favorable view of the parties’ submissions, the next sequential step is to ask whether the right was clearly established.” Saucier, 533 U.S. at 201, 121 S.Ct. at 2156. “The relevant dispositive inquiry” in making this determination is “whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 202, 121 S.Ct. at 2156. If it would not have been clear to a reasonable officer what the law required under the facts alleged, then he is entitled to qualified immunity.

B. Excessive Force

Our first inquiry on Officer Tate’s claim of qualified immunity is whether the facts Kopec asserts, taken in the light most favorable to him, show that Officer Tate violated Kopec’s Fourth Amendment rights. “To state a claim for excessive force as an unreasonable seizure under the Fourth Amendment, a plaintiff must show that a ‘seizure’ occurred and that it was unreasonable.” Estate of Smith, 318 F.3d at 515 (quoting Abraham v. Raso, 183 F.3d 279, 288 (3d Cir.1999)). Here, Officer Tate does not assert that Kopec’s arrest did not constitute a “seizure.” Thus, the only issue on this inquiry is whether the force Officer Tate used to effect that seizure was reasonable.

The test of reasonableness under the Fourth Amendment is whether under the totality of the circumstances, “the' officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivations.” Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989). Thus, if a use of force is objectively reasonable, an officer’s good faith is irrelevant and any bad faith motivation on his part is immaterial. See Estate of Smith, 318 F.3d at 515; Abraham, 183 F.3d at 289. Factors to consider in making a determination of reasonableness include 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 actively is resisting arrest or attempting to evade arrest by flight. See Graham, 490 U.S. at 396, 109 S.Ct. at 1872. A court in making a reasonableness assessment also may consider the possibility that the persons subject to the police action are violent or dangerous, the duration of the action, whether the action takes place in the context of effecting an arrest, the possibility that the suspect may be armed, and the number of persons with whom the police officers must contend at one time. See Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir.1997). As the Supreme Court has stated,

[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.... The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.

Graham, 490 U.S. at 396-97, 109 S.Ct. at 1872. “[Rjeasonableness under the Fourth Amendment should frequently remain a question for the jury,” Abraham, 183 F.3d at 290; however, “ ‘defendants can still win on summary judgment if the district court concludes, after resolving all factual disputes in favor of the plaintiff, that the officer’s use of force was objectively reasonable under the circumstances,’ ” id. (quoting Scott v. Henrich, 39 F.3d 912, 915 (9th Cir.1994)); see also Estate of Smith, 318 F.3d at 516.

Kopec alleges that Officer Tate placed handcuffs on him that were excessively tight and failed to respond to Ko-pec’s repeated requests for them to be loosened. He estimates that it took Officer Tate ten minutes to loosen the handcuffs despite the severe pain they were causing and his efforts to secure their release. As a result, Kopec claims that he suffered permanent nerve damage to his right wrist. These facts, if credited, would establish that Officer Tate’s use of force was excessive in violation of the Fourth Amendment.

In reaching our conclusion that Kopec has asserted facts that if proven would establish that there had been a violation of his constitutional rights, we point out that Officer Tate faced rather benign circumstances that hardly justified his failure to respond more promptly to Kopec’s entreaties, at least to the extent to ascertain if the handcuffs were too tight. Officer Tate was not, after all, in the midst of a dangerous situation involving a serious crime or armed criminals. Accordingly, this opinion should not be overread as we do not intend to open the floodgates to a torrent of handcuff claims. Thus, if Officer Tate had been engaged in apprehending other persons or other imperative matters when Kopec asked him to loosen the handcuffs our result might have been- different.

With respect to the second inquiry on qualified immunity, it cannot be said as a matter of law that a reasonable officer would not have known that this conduct was in violation of the Fourth Amendment even though it appears that neither the Supreme Court nor this court has ruled that a police officer may be using constitutionally excessive force in tightening handcuffs.⁶ The Court of Appeals for the Ninth Circuit has noted that at.least as early as 1985 the use of excessive force by officers in effecting an arrest was clearly proscribed by the Fourth Amendment as it held, quoting a 1985 Supreme Court opinion, that “the Fourth Amendment governs not only whether a person or thing is subject to a ‘seizure,’ but also ‘the manner in which a ... seizure is conducted.’ ” Palmer v. Sanderson, 9 F.3d 1433, 1436 (9th Cir.1993) (quoting Tennessee v. Garner, 471 U.S. 1, 7-8, 105 S.Ct. 1694, 1699, 85 L.Ed.2d 1 (1985)). Moreover, as we observed in Burns v. County of Cambria, 971 F.2d 1015, 1024 (3d Cir.1992), “[t]his court has adopted a broad view of what constitutes an established right of which a reasonable person would have known.” (citations and quotation marks omitted). Thus, in People of Three Mile Island v. Nuclear Regulatory Comm’rs, 747 F.2d 139, 144-45 (3d Cir.1984), we held that there does not have to be “precise factual correspondence” between the case at issue and a previous case in order for a right to be “clearly established,” and we would not be “faithful to the purposes of immunity by permitting ... officials one liability-free violation of a constitutional or statutory requirement.” Therefore, we hold that the right of an arrestee to be free from the use of excessive force in the course of his handcuffing clearly was established when Officer Tate acted in this case, and that a reasonable officer would have known that employing excessive force in the course of handcuffing would violate the Fourth Amendment. Accordingly, the district court committed error in granting summary judgment in favor of Officer Tate on the basis of his qualified immunity defense.

In reaching our result we point out that other courts of appeals have made determinations consistent with ours. See, e.g., Martin v. Heideman, 106 F.3d 1308, 1312 (6th Cir.1997) (reversing grant of directed verdict in favor of arresting officer in a section 1983 action alleging excessive force due to overly-tight handcuffs); Alexander v. County of Los Angeles, 64 F.3d 1315, 1322-23 (9th Cir.1995) (reversing grant of summary judgment in favor of officers on qualified immunity and holding that fact issue existed as to whether officers used excessive force in refusing to loosen plaintiffs handcuffs); Palmer, 9 F.3d at 1436 (9th Cir.1993) (affirming denial of summary judgment on qualified immunity where deputy allegedly employed excessive force by handcuffing plaintiff so tightly that he was in pain and was left bruised for several weeks).⁷

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 this opinion.

1 . On this appeal from an order granting summary judgment against him we are stating the facts from Kopec’s perspective. At trial the events may appear in a different light.

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.

3 .Officer Tate recalls the period as being between four and eight minutes.

4 . Kopec also sued the Township of Whitem-arsh which obtained a summary judgment on an uncontested motion but Kopec has not appealed from this disposition and thus the township is out of the case.

5 . Kopec has waived any challenge to the district court's ruling with regard to his state law claims as in his brief he merely makes passing reference to these claims, stating that "[pllaintiff has also made a state tort claim pertaining to these circumstances” and "Officer Tate's conduct is actionable as a state tort under 42 Pa.C.S.A. § 8542.” See Brief of Appellant at 9, 11. Kopec's failure sufficiently to raise this issue waives it on this appeal. See Laborers’ Int’l Union v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir.1994) ("An issue is waived unless a party raises it in its opening brief, and for those purposes a passing reference to an issue ... will not suffice to bring that issue before this court.”) (citations and internal quotation marks omitted).

Moreover, although he included a First Amendment argument in his brief, Kopec informed us at oral argument that he had abandoned that argument because his action properly was characterized as a Fourth Amendment excessive force claim. Thus, the only remaining issue on appeal is whether the district court properly granted summary judgment on Kopec's Fourth Amendment claim against Officer Tate.

6 . Neither party cites a case from the Supreme Court or this court directly addressing the issue. Indeed, Kopec in his brief indicates that he "has not found a case from the Third Circuit that discusses excessively tight handcuffs at the inception of an arrest or when a police officer purposefully left excessively tight handcuffs on a suspect over time,” brief of Appellant at 12, and Officer Tate in his brief states that "at the time of the plaintiff's arrest, it is apparent that there was no law in this Circuit specifically relating to tight handcuffing, and more specifically, as it relates to the issue of the constitutional implication of loosening tight handcuffing.” Brief of Appel-lee at 17.

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.