NOT RECOMMENDED FOR PUBLICATION File Name: 25a0391n.06
No. 24-2017
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED ) Aug 05, 2025 SHERRELL KING, ) KELLY L. STEPHENS, Clerk Plaintiff-Appellee, ) ) v. ) ON APPEAL FROM THE ) UNITED STATES DISTRICT CITY OF LINCOLN PARK, MICHIGAN, a ) COURT FOR THE EASTERN Michigan municipal corporation, ) DISTRICT OF MICHIGAN Defendant, ) ) OPINION NICK KOSMALSKI, in his individual capacity, ) ) Defendant-Appellant. )
Before: GRIFFIN, LARSEN, and MATHIS, Circuit Judges.
GRIFFIN, J., announced the judgment of the court and delivered the lead opinion in which MATHIS, J., concurred in part. MATHIS, J. (pp. 13–17), delivered a separate opinion concurring in part and dissenting in part. LARSEN, J. (pp. 18–22), delivered a separate opinion concurring in the judgment in part and dissenting in part.
GRIFFIN, Circuit Judge.
During a traffic stop, officers discovered that plaintiff Sherrell King had outstanding traffic
warrants and thus handcuffed and briefly detained her. King twice complained about the
handcuffs’ tightness, but defendant Officer Nick Kosmalski ignored her second complaint. King
allegedly suffered injuries from the handcuffing, so she brought this lawsuit claiming excessive
force in violation of the Fourth Amendment and gross negligence in violation of Michigan law.
Kosmalski now appeals the district court’s denials of qualified immunity and state-law
governmental immunity at the summary-judgment phase. For the following reasons, we affirm No. 24-2017, King v. City of Lincoln Park, et al.
the district court’s denial of qualified immunity, reverse its denial of governmental immunity, and
remand for further proceedings.
I.
One morning in June 2021, City of Lincoln Park Police Department Officer Kosmalski and
his partner pulled over a vehicle driven by Sherrell King for expired license-plate tabs. During the
traffic stop, King told the officers that both her license-plate tabs and driver’s license had recently
expired but that she had an upcoming appointment to renew them.
The officers then ran a LEIN check on King’s purportedly expired license, which revealed
that it was suspended for outstanding traffic warrants. The officers ordered King out of the car,
arrested her, and put her in handcuffs. When Kosmalski began to handcuff King, she informed
him that she recently had breast-cancer surgery and thus asked not to be handcuffed behind her
back. To accommodate her, Kosmalski responded that he would use two pairs of handcuffs linked
together.
While Kosmalski cuffed her, King complained that the handcuffs were “kinda tight” and
now claims that she said “ouch” when Kosmalski locked them. Both officers then checked the
tightness of the handcuffs by sliding a finger in between a cuff and King’s wrist to ensure that
there was “ample space.” Kosmalski ultimately double locked the handcuffs in place, meaning
they could neither be loosened nor tightened.
The officers then escorted King to their patrol car. As King climbed into the vehicle, she
complained about the handcuffs being too tight: “This shit hurt in the back, on my wrist.”
Although Kosmalski “listened” to King’s complaint, he did not check the handcuffs’ tightness.
Indeed, he “did not respond and closed the car door.” King never complained about the handcuffs
again.
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Ultimately, the officers issued King three traffic citations, uncuffed her, impounded her
vehicle, and released her. In total, King was handcuffed for about 15 minutes.
After the officers removed King’s handcuffs, she noticed that her wrists and hands were
swollen and that the cuffs had left marks on her wrists. She claims that the handcuffs made her
fingers numb and caused something to “pop.” King sought medical treatment for her wrist injuries
and has since gone to physical therapy, had two surgeries, and had two rounds of injections.
King eventually filed this civil-rights lawsuit against Kosmalski and the City of Lincoln
Park. Relevant to this appeal, she alleged a 42 U.S.C. § 1983 Fourth Amendment excessive-force
claim and state-law gross-negligence claim against Kosmalski in his individual capacity.
Kosmalski moved for summary judgment based on qualified immunity and governmental
immunity, which the district court denied. Kosmalski timely filed a notice of interlocutory appeal.
II.
We review de novo a district court’s denials of qualified and governmental immunity at
the summary-judgment stage. Erickson v. Gogebic County, 133 F.4th 703, 707 (6th Cir. 2025)
(qualified immunity); Bletz v. Gribble, 641 F.3d 743, 757 (6th Cir. 2011) (governmental
immunity). Summary judgment is proper “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “To prevail, the nonmovant must show sufficient evidence to create a genuine issue of
material fact, which is to say, there must be evidence on which the jury could reasonably find for
the nonmovant.” Sumpter v. Wayne County, 868 F.3d 473, 480 (6th Cir. 2017) (citation modified).
We must view all evidence and draw all inferences in the light most favorable to the nonmoving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
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III.
Kosmalski first argues that he did not violate a clearly established constitutional right when
he handcuffed King and should thus be protected by qualified immunity. Qualified immunity
protects public officials, in certain circumstances, from liability for civil damages when they
violate a person’s constitutional rights. Pearson v. Callahan, 555 U.S. 223, 231 (2009). We ask
two questions to determine whether a public official is entitled to qualified immunity: (1) whether
the facts alleged support a violation of the plaintiff’s constitutional rights, and (2) if they do,
whether that right was clearly established at the time of the defendant’s alleged misconduct. Id. at
232; LaPlante v. City of Battle Creek, 30 F.4th 572, 578–79 (6th Cir. 2022). If the public-official
defendant did not violate a constitutional right, or if he did but the right was not clearly established
at the time of the violation, then the defendant is entitled to qualified immunity. See Martin v. City
of Broadview Heights, 712 F.3d 951, 957 (6th Cir. 2013).
Because appeals from qualified-immunity denials are interlocutory, we “may only exercise
jurisdiction over the appeal to the extent that a summary judgment order denies qualified immunity
based on a pure issue of law.” Morrison v. Bd. of Trs. of Green Twp., 583 F.3d 394, 399 (6th Cir.
2009) (citation modified). In such appeals, we thus consider “whether the facts alleged by the
plaintiff constitute a violation of clearly established law.” Berryman v. Rieger, 150 F.3d 561, 563
(6th Cir. 1998).
A.
Beginning with prong one of the qualified-immunity analysis, King has established that a
reasonable jury could find that Kosmalski violated her Fourth Amendment rights. The Fourth
Amendment protects against unreasonable searches and seizures. U.S. Const. amend. IV. “A
seizure is ‘unreasonable’ under the Fourth Amendment if officers used excessive force.” Puskas
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v. Delaware County, 56 F.4th 1088, 1093 (6th Cir. 2023) (citation omitted). For claims alleging
that an officer’s handcuffing was excessively forceful, a plaintiff must show that: “(1) he or she
complained the handcuffs were too tight; (2) the officer ignored those complaints; and (3) the
plaintiff experienced some physical injury resulting from the handcuffing.” Morrison, 583 F.3d
at 401 (citation modified).
On appeal, Kosmalski challenges only the second element, arguing that because he
addressed King’s first complaint that the handcuffs were too tight, he did not ignore her. But
Kosmalski does not dispute that he ignored her second complaint. And under our caselaw, even a
“dismissive response”—i.e., an officer acknowledging a detainee’s complaint but refusing to
loosen the handcuffs—satisfies the second element of a handcuffing claim. See Baynes v.
Cleveland, 799 F.3d 600, 609 (6th Cir. 2015). Indeed, we have held that a plaintiff “easily
satisf[ies]” the second element of a handcuffing claim by establishing that the officer “responded
to the complaint by sticking his finger in between the handcuffs and [the plaintiff’s] skin to make
sure they were not too tight” but chose not to loosen the cuffs. Morrison, 583 F.3d at 402 (citation
modified). Here, Kosmalski was even less responsive than the officers in Baynes and Morrison
were—he ignored King’s second complaint, which is exactly the type of conduct the second
element of this claim requires.
Disagreeing, Kosmalski argues that he was not required to check King’s handcuffs a
second time. Yet he supports this argument with only unpublished authority. See Fettes v.
Hendershot, 375 F. App’x 528, 533 (6th Cir. 2010). As explained, our published caselaw required
Kosmalski to address and remedy King’s complaints of too-tight handcuffs. See Morrison,
583 F.3d at 402; Baynes, 799 F.3d at 609. We, of course, must follow our binding caselaw. Cf.
United States v. Cogdill, 130 F.4th 523, 527 (6th Cir. 2025). And under that caselaw, Kosmalski’s
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disregard of King’s complaint, coupled with her resulting injuries, amounts to an excessively
forceful handcuffing for summary-judgment purposes. Thus, at this stage of the case, there is at
least a genuine dispute of material fact as to whether Kosmalski violated King’s Fourth
Amendment rights.
B.
King has also satisfied prong two of the qualified-immunity analysis, sufficiently showing
that her right to be free from excessively forceful handcuffing is clearly established. “A right is
clearly established if the contours of the right are sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” Cahoo v. SAS Analytics, Inc., 912 F.3d 887,
898 (6th Cir. 2019) (citation modified). Although clearly established law cannot be defined “at a
high level of generality,” Godawa v. Byrd, 798 F.3d 457, 467 (6th Cir. 2015) (citation omitted), a
case with near-identical facts need not exist for a right to be clearly established, Rivas-Villegas v.
Cortesluna, 595 U.S. 1, 5 (2021) (per curiam). Indeed, “the sine qua non of the ‘clearly
established’ inquiry is ‘fair warning.’” Baynes, 799 F.3d at 612–13 (quoting Hope v. Pelzer,
536 U.S. 730, 741 (2002)). Given these principles, “[t]he relevant inquiry is ‘whether it would be
clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’” Id. at
610 (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)).
The right to be free from excessively forceful handcuffing was clearly established in this
circuit at the time of the incident here. “As early as 1993, we held that it was clearly established
law in this circuit in 1991 . . . that excessively forceful handcuffing violates the Fourth Amendment
prohibition against excessive force.” Id. at 613 (citing Walton v. City of Southfield, 995 F.2d 1331,
1342 (6th Cir. 1993)). And in 2009, we laid out exactly what type of conduct constitutes an
excessively forceful handcuffing: an officer’s disregard to a detainee’s complaint of too-tight
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handcuffs that cause an injury. Morrison, 583 F.3d at 401. In 2019, we explicitly rejected a bright-
line rule about how much time a detainee needs to be handcuffed for the cuffing to be
unconstitutionally excessive and instead held that we determine excessiveness on a case-by-case,
totality-of-the-circumstances basis. See Rudolph v. Babinec, 939 F.3d 742, 751 (6th Cir. 2019)
(per curiam) (“Conduct, not time, is the measurement of a violation. To see why, imagine that
someone was handcuffed so tightly that she was bleeding from her wrists and screaming in pain
while an officer ignored the complaint. The law would not require us to ignore that excessive
force claim because the bleeding went on for ten minutes instead of eleven.”).
Kosmalski argues that even if he violated the Fourth Amendment by ignoring King’s
second complaint about the tight handcuffs, it was not clearly established that his conduct was
unconstitutional. Not so. As explained, we have held that conduct similar to (and even less
dismissive than) that at issue here was excessively forceful in violation of a clearly established
right. See Baynes, 799 F.3d at 613–17 (cataloguing our precedent clearly establishing the right to
be free from excessive handcuffing); see also Morrison, 583 F.3d at 401–02; Rudolph, 939 F.3d
at 751–52; Hughey v. Easlick, 3 F.4th 283, 287, 293 (6th Cir. 2021). True, neither Morrison nor
Baynes involved facts identical to those here. But they need not contain even “fundamentally
similar” facts to clearly establish the law so long as the state of the law at the time of the
handcuffing gave Kosmalski “fair warning that [his] alleged treatment of [King] was
unconstitutional.” See Hope, 536 U.S. at 741. And because a reasonable officer would have
known to check and loosen the too-tight handcuffs that ultimately caused serious injuries, at this
stage in the case, King has sufficiently shown that Kosmalski violated her clearly established
Fourth Amendment rights. See, e.g., Morrison, 583 F.3d at 402–04; Baynes, 799 F.3d at 609–16;
Rudolph, 939 F.3d at 750–52; Hughey, 3 F.4th at 290–91, 293.
-7- No. 24-2017, King v. City of Lincoln Park, et al.
We are not persuaded by Kosmalski’s reliance on unpublished handcuffing cases holding
that the officers were entitled to qualified immunity. See Fettes, 375 F. App’x at 533–34; Lee v.
City of Norwalk, 529 F. App’x 778, 781–82 (6th Cir. 2013); Henry v. City of Flint,
814 F. App’x 973, 983 (6th Cir. 2020). These unpublished cases aside, our published caselaw has
clearly established the right to be free from an officer ignoring complaints of too-tight handcuffs.
And in any event, these cases are distinguishable. See Fettes, 375 F. App’x at 533 (officer
responded to each of plaintiff’s complaints and assured him that they would loosen them); Lee,
529 F. App’x at 782 (plaintiff was handcuffed for only a 1.5-mile drive, a distance “that can be
driven in less than five minutes”); Henry, 814 F. App’x at 983 (plaintiff made “indistinct”
complaints, at best, about the handcuffs, and the need to get plaintiff to the police station was
“pressing” given his suffering from pepper spray).
Otherwise, Kosmalski relies on one published opinion in arguing that no clearly established
right is at issue here, O’Malley v. City of Flint, 652 F.3d 662, 671–72 (6th Cir. 2011). There, when
officers approached the plaintiff upon suspicion that he had been impersonating a police officer,
the plaintiff became agitated, cursed, and raised his voice, so officers handcuffed him for safety
reasons while they investigated. Id. at 665–66. During the two minutes that the plaintiff was
handcuffed, he never asked the officers to loosen the cuffs. Id. at 671. And the handcuffs left no
“obvious physical injury.” Id. Because a reasonable officer in that situation would not have known
that any constitutional violation may have occurred, we granted qualified immunity to the police
officer. Id. at 671–72. Unlike the plaintiff in O’Malley, King alleges she was handcuffed longer,
had visible injuries, and twice complained about the handcuffs’ tightness. Therefore, O’Malley is
also inapposite.
-8- No. 24-2017, King v. City of Lincoln Park, et al.
To be sure, we held in Fettes that “a constitutional requirement obligating officers to stop
and investigate each and every utterance of discomfort and make a new judgment as to whether
the handcuffs are ‘too tight’ is neither reasonable nor clearly established.” 375 F. App’x at 533.
But we have since retreated from Fettes, Lee, and O’Malley in recent published authority. See
Baynes, 799 F.3d at 616–17. We noted that these cases “are outliers in this Circuit, where at least
10 published cases, not to mention additional unpublished cases, have stated unequivocally, for
over 20 years, that a right to be free from excessively forceful or unduly tight handcuffing is clearly
established law.” Id. at 616. Moreover, we explained that these cases failed to abide by Hope v.
Pelzer—in which the Supreme Court held that even “novel factual circumstances” can put an
official on notice of his unconstitutional conduct, 536 U.S. at 741—by requiring the plaintiffs to
provide a near-identical case to show a clearly established right. Baynes, 799 F.3d at 617.
Accordingly, we need not follow these distinguishable and potentially abrogated cases—two of
which are unpublished.
C.
In sum, considering the facts in the light most favorable to King, she has established that
Kosmalski violated her clearly established Fourth Amendment right to be free from excessively
forceful handcuffing. We therefore affirm the district court’s decision that Kosmalski is not
entitled to summary judgment based on qualified immunity.
IV.
Kosmalski also claims that the district court erred by denying him governmental immunity,
under Michigan law, for King’s gross-negligence claim. In determining whether a state officer is
entitled to summary judgment based on governmental immunity, we “apply Michigan
governmental-immunity law and federal procedural law.” Bletz, 641 F.3d at 757. Under Michigan
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law, “[i]f the facts are not in dispute and reasonable minds could not differ concerning the legal
effect of those facts, whether the claim is barred by immunity is a question for the court to decide
as a matter of law.” Beals v. Michigan, 871 N.W.2d 5, 9 (Mich. 2015) (citation omitted).
Michigan’s Governmental Tort Liability Act, Mich. Comp. Laws § 691.1401 et seq.,
protects state employees from tort liability for injuries they cause in the course of their
employment, unless their conduct amounts to gross negligence, id. § 691.1407(2). Gross
negligence is “conduct so reckless as to demonstrate a substantial lack of concern for whether an
injury results.” Id. § 691.1407(8)(a). Although state officers are not immunized for grossly
negligent conduct, claims styled as “gross negligence” but that are “fully premised” on intentional
conduct are not cognizable claims under Michigan law. VanVorous v. Burmeister, 687 N.W.2d
132, 143 (Mich. Ct. App. 2004), abrogated on other grounds by Odom v. Wayne County, 760
N.W.2d 217 (Mich. 2008). Thus, Michigan courts have “rejected attempts to transform claims
involving elements of intentional torts into claims of gross negligence.” Id. And in appeals
involving gross-negligence claims under Michigan law, we have “repeatedly” held that
“excessive-force claims disguised as gross-negligence claims” cannot proceed beyond summary
judgment. See, e.g., Naji v. City of Dearborn, 120 F.4th 520, 526 (6th Cir. 2024); Bletz, 641 F.3d
at 756; Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 408 (6th Cir. 2007); Presnall v. Huey,
657 F. App’x 508, 513 (6th Cir. 2016).
My colleagues disagree about whether Kosmalski’s conduct here amounts to gross
negligence and, in turn, whether he is entitled to governmental immunity. But we need not make
that determination because King’s gross-negligence claim is based on the same conduct underlying
her excessive-force claim, meaning it is not cognizable under Michigan law. Her complaint alleges
that “when [Kosmalski] engaged in the wrongful conduct described above” (i.e., the forceful
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handcuffing), he “engaged in conduct so reckless as to demonstrate a substantial lack of concern
for whether an injury resulted.” Nothing in the district court’s record demonstrates that King’s
gross-negligence claim arises out of any conduct other than the conduct underlying her
handcuffing claim. While we have permitted gross-negligence claims “premised on allegations
that officers were ‘grossly negligent in failing to follow certain procedures and statutory
obligations’ or where the plaintiff can otherwise ‘show that the defendant owed him a duty of
care’” to proceed, Richards v. City of Jackson, 788 F. App’x 324, 336–37 (6th Cir. 2019) (citation
omitted), King does not allege that Kosmalski owed her a duty of care or failed to follow internal
policies or statutory obligations. Therefore, King’s gross-negligence claim is “fully premised on
her claim of excessive force,” VanVorous, 687 N.W.2d at 143, and the district court erred in
allowing this claim to proceed beyond summary judgment.
King’s reliance on Oliver v. Smith, 715 N.W.2d 314, 318 (Mich. Ct. App. 2006), is
“misplaced,” see Chapman v. Mack, 2018 WL 3038528, at *6 (Mich. Ct. App. June 19, 2018) (per
curiam). Although the Michigan Court of Appeals established in Oliver that “handcuffing an
individual too tightly” can constitute gross negligence if “physical injury results,” 715 N.W. 2d at
318, the court clarified in Chapman that “all claims against police officers that involve handcuffs”
are not “automatically gross negligence claims,” 2018 WL 3038528, at *6. Indeed, the court
reiterated that claims based “purely on intentional rather than negligent conduct” constitute
intentional-tort claims, not gross-negligence claims. Id.; see also Jackson v. Lubelan, 2020
WL 5496088, at *13 (Mich. Ct. App. Sept. 10, 2020) (per curiam) (allowing a gross-negligence
claim involving excessive handcuffing to proceed because it was based on the “evidence that
defendants did nothing in response to [plaintiff’s] complaints for approximately 45 minutes to an
hour,” not affirmative, intentional conduct).
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Because King’s state-law gross-negligence claim is “not cognizable under Michigan law,”
Livermore, 476 F.3d at 408, we reverse the district court’s denial of summary judgment in favor
of Kosmalski on this claim.
V.
For these reasons, we affirm the district court’s denial qualified immunity to Kosmalski on
the excessive-force claim, reverse the denial of governmental immunity to Kosmalski on the gross-
negligence claim, and remand for further proceedings.
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MATHIS, Circuit Judge, concurring in part and dissenting in part. I agree with the
lead opinion that the district court did not err in denying qualified immunity to Officer Nick
Kosmalski on Sherrell King’s Fourth Amendment excessive-force claim. So I join Parts I, II, and
III of the lead opinion. But I part ways with the lead opinion’s resolution of King’s state-law
gross-negligence claim. In my view, genuine fact issues remain about whether Kosmalski was
grossly negligent during the handcuffing incident with King. Therefore, the district court did not
err in denying state governmental immunity to Kosmalski.
Michigan law generally immunizes a police officer “from tort liability for an injury to a
person” that the officer causes “while in the course of employment.” Mich. Comp. Laws
§ 691.1407(2). The Michigan legislature removes that immunity when the officer’s conduct
“amount[s] to gross negligence.” Id. § 691.1407(2)(c). “‘Gross negligence’ means conduct so
reckless as to demonstrate a substantial lack of concern for whether an injury results.” Id.
§ 691.1407(8)(a). In other words, “[g]ross negligence suggests almost a willful disregard of
precautions or measures to attend to safety and a singular disregard for substantial risks.”
Dougherty v. City of Detroit, 986 N.W.2d 467, 475 (Mich. Ct. App. 2021) (citation modified).
Intentional conduct is not gross negligence. An officer acts intentionally when he “realizes
the risk of his behavior and consciously decides to create that risk.” People v. Datema, 533 N.W.2d
272, 280 (Mich. 1995). “Michigan has rejected attempts to transform claims involving elements
of intentional torts into claims of gross negligence.” Miller v. Sanilac County, 606 F.3d 240, 254
(6th Cir. 2010) (citation modified). That said, “plaintiffs are barred from bringing gross-
negligence claims only if those claims are ‘fully premised’ on alleged intentional torts.” Brent v.
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Wayne Cnty. Dep’t of Hum. Servs., 901 F.3d 656, 701 (6th Cir. 2018) (quoting VanVorous v.
Burmeister, 687 N.W.2d 132, 143 (Mich. Ct. App. 2004)).
Michigan courts have recognized that excessively tight handcuffing can constitute gross
negligence if it results in physical injury. Oliver v. Smith, 715 N.W.2d 314, 318 (Mich. Ct. App.
2006). But “all claims against police officers that involve handcuffs are [not] automatically gross
negligence claims.” Chapman v. Mack, No. 335678, 2018 WL 3038528, at *6 (Mich. Ct. App.
June 19, 2018) (per curiam). If a “plaintiff has based his claims against [a] defendant purely on
intentional rather than negligent conduct,” then the claim asserts an intentional tort. Id. True, “the
use of handcuffs is an intentional act,” but the injuries that result from using those handcuffs may
be “accidentally—not intentionally—caused.” Jackson v. Lubelan, No. 338275, 2018 WL
3309610, at *2 (Mich. Ct. App. July 5, 2018) (per curiam). In the handcuffing context, an officer
acts intentionally when he “specifically intended to injure the plaintiff with the handcuffs.” Id.
I turn now to the facts of this case. At this stage, the facts must be “viewed in the light
most favorable to” King. See Gillman v. City of Troy, 126 F.4th 1152, 1161–62 (6th Cir. 2025).
“[Q]uestions regarding whether a governmental employee’s conduct constituted gross negligence
are generally questions of fact for the jury.” Wood v. City of Detroit, 917 N.W.2d 709, 714 (Mich.
Ct. App. 2018).
A reasonable trier of fact could find that Kosmalski’s conduct was grossly negligent.
Kosmalski detained King for driving with a suspended license, a nonviolent misdemeanor offense.
King told Kosmalski that she had recently had surgery. Still, Kosmalski refused King’s request to
be “handcuff[ed] . . . in the front.” R. 26-2, PageID 277. When Kosmalski locked King’s
handcuffs—with her hands behind her back—she said “ouch.” Id. at 278. And Kosmalski heard
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King complain twice about the tightness of the handcuffs. After the first complaint, Kosmalski
did not loosen the handcuffs. He instead double locked the handcuffs to ensure they would not
tighten even more. The second complaint occurred after Kosmalski placed King in his squad car.
Kosmalski ignored King’s second complaint, closed the door, and left her in the squad car for more
than ten minutes. Kosmalski did that even though he faced no exigency or obstacle that prevented
him from rechecking King’s handcuffs. And Kosmalski ignored King’s pleas even though she
was fully compliant and nonviolent throughout the encounter. Afterward, when Kosmalski
removed the handcuffs and heard King complain about wrist pain, he told her that handcuffs were
not meant to be comfortable. The result: King needed multiple surgeries to repair the injuries she
sustained. Taken together, these facts support King’s position that Kosmalski “simply did not care
about [her] safety or welfare.” See Reilly v. Vadlamudi, 680 F.3d 617, 627 (6th Cir. 2012)
(quotation omitted).
To be sure, some evidence favors Kosmalski. He used two sets of handcuffs, checked for
tension after King’s first complaint, and double locked the handcuffs. But such “cherry-picked”
evidence does not erase the fact that Kosmalski “did nothing in response to” King’s second
complaint. Jackson v. Lubelan, No. 350239, 2020 WL 5496088, at *13 (Mich. Ct. App. Sept. 10,
2020) (per curiam). And so, whether Kosmalski’s conduct constitutes gross negligence is a
question of fact for the trier of fact, not one of law for our court to decide. See Beals v. Michigan,
871 N.W.2d 5, 9 (Mich. 2015).
Kosmalski and the lead opinion reach a different conclusion. They believe King’s state-
law tort claim must fail because it arises from the same facts underlying her excessive-force claim.
But not all excessive-force claims involve intentional conduct. Yes, excessive-force claims arising
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from the use of deadly force, such as the cases the lead opinion relies on, involve intentional
conduct. See Naji v. City of Dearborn, 120 F.4th 520, 522, 526 (6th Cir. 2024); Bletz v. Gribble,
641 F.3d 743, 747, 756 (6th Cir. 2011); Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 408
(6th Cir. 2007); Presnall v. Huey, 657 F. App’x 508, 509, 513 (6th Cir. 2016). So do excessive-
force claims involving tasering or using pepper spray. And handcuffing could involve intentional
conduct if the officer intends to hurt or injure the arrestee. But our precedent allows a person to
succeed on an excessive-force claim for “unduly tight handcuffing” by establishing that she
complained about the tightness of the handcuffs, the officer ignored the complaint, and injury
resulted. Strickland v. City of Detroit, 995 F.3d 495, 508 (6th Cir. 2021) (quotation omitted).
Thus, no intentional conduct is required.
Neither this court nor Michigan courts have held that the same conduct underlying an
excessive-force claim cannot also give rise to state-law tort liability. To the contrary, this court
has upheld the denial of governmental immunity under Michigan law when state-law tort claims
are “heavily dependent on the same disputed material facts as the excessive-force determination
under § 1983.” See, e.g., Shumate v. City of Adrian, 44 F.4th 427, 450–52 (6th Cir. 2022)
(quotation omitted). And Michigan courts have adopted this court’s reasoning in determining that
a plaintiff can maintain a gross-negligence claim for unduly tight handcuffing if physical injury
results. See Oliver, 715 N.W.2d at 318; Jackson, 2020 WL 5496088, at *12–15.
When an officer’s underlying conduct is unintentional yet reckless and harmful—like in
some unduly tight handcuffing cases—that conduct can support both an excessive-force claim and
a state-law gross-negligence claim. See, e.g., Kostrzewa v. City of Troy, 247 F.3d 633, 639–43
(6th Cir. 2001). And so, given that Kosmalski apparently did not intend to harm King—a point
no one disputes—a trier of fact could find that Kosmalski’s conduct amounted to gross negligence.
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For these reasons, the district court did not err in denying summary judgment to Kosmalski
on King’s state-law gross-negligence claim.
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LARSEN, Circuit Judge (concurring in the judgment in part and dissenting in part).
Government officials are entitled to qualified immunity unless the plaintiff can carry the burden
of showing that the official violated a clearly established constitutional right. Here, King has failed
to meet that burden, so I would reverse the district court’s denial of qualified immunity on her
Fourth Amendment claim. I also would reverse the district court’s decision denying Officer
Kosmalski governmental immunity on King’s gross-negligence claim under Michigan law. In my
opinion, Kosmalski’s conduct didn’t rise to the level of gross negligence—that is, it didn’t
constitute conduct “so reckless as to demonstrate a substantial lack of concern for whether an
injury results.” Mich. Comp. Laws § 691.1407(8)(a).
For qualified immunity, we ask (1) whether plaintiff’s constitutional rights were violated,
and (2) whether those rights were clearly established. Pearson v. Callahan, 555 U.S. 223, 231
(2009). We can address the prongs in either order. See id. at 236. In my opinion, Officer
Kosmalski is entitled to qualified immunity because, at a minimum, King has failed to meet her
burden of establishing that any violation of her constitutional rights was clearly established. See
Johnson v. Moseley, 790 F.3d 649, 653 (6th Cir. 2015).
“[F]or a right to be clearly established, existing precedent must have placed any statutory
or constitutional question beyond debate.” White v. Pauly, 580 U.S. 73, 79 (2017) (per curiam)
(citation omitted). Here, King had “to identify a case where an officer acting under similar
circumstances as Officer [Kosmalski] was held to have violated the Fourth Amendment.” Id.
General statements of law won’t suffice. Id. And “[s]pecificity is especially important in the
Fourth Amendment context”—existing precedent must “squarely govern[] the specific facts at
issue.” Kisela v. Hughes, 584 U.S. 100, 104 (2018) (citation omitted).
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To meet her burden, King was required to come forward with published caselaw showing
that the law is clearly established. See Bell v. City of Southfield, 37 F.4th 362, 368 (6th Cir. 2022).
King primarily relies on two cases—Morrison v. Board of Trustees of Green Township, 583 F.3d
394 (6th Cir. 2009), and Baynes v. Cleland, 799 F.3d 600 (6th Cir. 2015). Neither squarely governs
the specific facts at issue here.
Recall those facts. When Kosmalski began to handcuff King, she asked not to be
handcuffed in the back because she recently had breast cancer surgery. Showing attention to that
concern, Kosmalski said that he would use two pair of handcuffs linked together. Once Kosmalski
put the handcuffs on King, she said that the handcuffs were “kinda tight.” Both officers on the
scene then checked the tightness of the handcuffs by placing a finger between a cuff and King’s
wrist. This was done to ensure that there was “ample space.” Kosmalski also double locked the
handcuffs, meaning they could not be inadvertently loosened nor tightened. From there, the
officers escorted King to their patrol car. As the officers placed King in the vehicle, she
said: “This shit hurt in the back, on my wrist.” Kosmalski didn’t respond or check the handcuffs
again. King was handcuffed for about fifteen minutes total.
Now the cases offered by King. She points to Morrison v. Board of Trustees of Green
Township, 583 F.3d 394 (6th Cir. 2009). There, the plaintiff complained that the handcuffs were
too tight. Id. at 398. Although the officer said that “he responded to the complaint by sticking his
finger in between the handcuffs and [the plaintiff’s] skin to make sure they were not ‘too tight,’”
the plaintiff and a witness “testified that he disregarded the complaint and refused to loosen the
handcuffs.” Id. at 402. To make matters worse, the officer then said “that he could place the
handcuffs on ‘as tight as he wanted to and that’s how they were staying.’” Id.
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Morrison doesn’t squarely govern the conduct here. It didn’t involve two complaints in
quick succession as we have in this case. And it doesn’t even appear to involve an officer who
actually checked the tightness of the handcuffs. Rather, the plaintiff’s testimony, which must be
taken as true at the summary judgment stage, was that the officer didn’t check and instead
responded callously. Contrast that with Kosmalski’s conduct here, in which he sought to
accommodate King’s concerns about pain by linking two pairs of handcuffs together, made sure
the handcuffs were double locked so they couldn’t slip, and immediately responded to her first
complaint by checking to ensure there was ample space. Morrison does nothing to put Kosmalski
on notice that he had to check the handcuffs again a few moments later.
King’s second case—Baynes v. Cleland, 799 F.3d 600 (6th Cir. 2015)—is equally
inapposite. To be sure, Baynes read Morrison to stand for the proposition “that a dismissive
response from an officer is sufficient to meet the second prong of a claim for excessively forceful
handcuffing.” Id. at 609. But that general rule can’t create a clearly established right in this case
because the facts aren’t sufficiently similar. In Baynes, the plaintiff complained separately to two
officers about the tightness of the handcuffs. Id. at 608–09. Neither ever responded, id., unlike
Kosmalski here. Nothing about the factual situation in Baynes would put an officer on notice that
he had a duty to check the handcuffs again just a few moments after checking the first time. And
that includes the panel’s later broad statement that “[a]s early as 1993, we held that it was clearly
established law in this circuit in 1991 . . . that excessively forceful handcuffing violates the Fourth
Amendment prohibition against excessive force.” Id. at 613. Such general statements of the law
are insufficient to render the law clearly established, White, 580 U.S. at 79, and the Supreme Court
has made clear, after Baynes, that this is especially true in the excessive force context, Kisela, 584
U.S. at 104. Baynes doesn’t cover the conduct here. As a result, King has failed to meet her
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burden of establishing that Kosmalski wasn’t entitled to qualified immunity. So I would reverse
the district court’s denial of qualified immunity on this claim.
For King’s gross negligence claim under Michigan law, she must demonstrate that
Kosmalski’s conduct was “so reckless as to demonstrate a substantial lack of concern for whether
an injury results.” Mich. Comp. Laws § 691.1407(8)(a). “Gross negligence suggests almost a
willful disregard of precautions or measures to attend to safety and a singular disregard for
substantial risks.” Dougherty v. City of Detroit, 986 N.W.2d 467, 475 (Mich. Ct. App. 2021)
(citation omitted). “[S]imply alleging that an actor could have done more is insufficient to meet
the standard for gross negligence under the GTLA.” Id. (citation omitted).
Assuming that King’s gross negligence claim is cognizable under Michigan law, her claim
fails because Kosmalski’s conduct does not rise to the level of gross negligence. As explained
previously, King asked not to be handcuffed in the back because she recently had breast cancer
surgery. Kosmalski didn’t disregard this request but attempted to accommodate her concerns by
using two handcuffs linked together. And once King complained that the handcuffs were “kinda
tight,” both officers checked the tightness of the handcuffs by placing a finger between a cuff and
King’s wrist. This was done to ensure that there was “ample space.” Kosmalski also double
locked the handcuffs, meaning they could not be inadvertently loosened nor tightened. So up until
that point, Kosmalski’s conduct was far from “a willful disregard of precautions or” safety
measures, but rather an ample regard for them. See id; see also Tarlea v. Crabtree, 687 N.W.2d
333, 340 (Mich. App. 2004) (“[T]he coaches’ conduct showed that they performed their duties in
a manner that exhibited care and concern for the student athletes. Rather than a substantial lack of
concern, the coaches showed substantial concern for the well-being of their students.”). Does
-21- No. 24-2017, King v. City of Lincoln Park, et al.
King’s complaint a minute later change Kosmalski’s otherwise reasonable response to gross
negligence? It does not. Having checked the locks minutes before, not checking them again
doesn’t amount to “a singular disregard for substantial risks.” Id. at 339. At most, Kosmalski
could have done more, but that’s insufficient to show gross negligence. Id. Accordingly, King’s
gross negligence fails, and I would reverse the district court’s conclusion to the contrary.
***
I respectfully concur in the judgment in part and dissent in part.
-22-