Michael Kopec v. Tyrone Tate, Officer

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
No. 02-4188
MICHAEL KOPEC,
Appellant
v.
TYRONE TATE, OFFICER;
TOWNSHIP OF WHITEMARSH
Appeal from the United States District
Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 02-00430)
District Judge: Honorable J. Curtis
Joyner
Argued November 6, 2003
BEFORE: MCKEE, SMITH, and
GREENBERG, Circuit Judges
(Filed: March 17 2004 )
John J. Auritt (argued)
130 East State Street
Media, PA 19063
Attorney for Appellant
Joseph Santarone
Walter F. Kawalec, III (argued)
Marshall, Dennehey, Warner, Coleman
& Goggin
200 Lake Drive East, Suite 300
Cherry Hill, NJ 08002
Attorneys for Appellee Officer
Tyrone Tate
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, Kopec and his girlfriend, Pamela
Smith (whom Kopec later married),
trespassed onto the frozen lake at the
Sherry Lake Apartment Complex in

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2
Conshohocken (Whitemarsh Township),
Montgomery County, Pennsylvania.1
The lake, which was fenced off, was
located on the property where Pamela
Smith (now Pamela Kopec) 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
1On 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.
2Kopec 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.

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3
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)(1)(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
3Officer Tate recalls the period as
being between four and eight minutes.
4Kopec also sued the Township of
Whitemarsh which obtained a summary
(continued...)
4(...continued)
judgment on an uncontested motion but
Kopec has not appealed from this
disposition and thus the township is out
of the case.
5Kopec 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 “[p]laintiff 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
(continued...)

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4
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
5(...continued)
appeal is whether the district court
properly granted summary judgment on
Kopec’s Fourth Amendment claim
against Officer Tate.

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5
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 (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 (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
plaintiff’s 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

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6
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
asssert 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
(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.

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7
Graham, 490 U.S. at 396-97, 109 S.Ct. at
1872. “[R]easonableness 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
Kopec’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
6Neither 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
(continued...)

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8
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 (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 plaintiff’s 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
6(...continued)
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 Appellee at 17.

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9
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.
7This 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.

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K o p e c v . T a t e , N o . 0 2 - 4 1 8 8 .
SMITH, Circuit Judge, Dissenting:
I respectfully dissent from the
majority opinion because I believe that the
facts, even when viewed in the light most
favorable to Kopec, fail to demonstrate
that Officer Tate deprived Kopec of the
protections of the Fourth Amendment right
to be free from the use of excessive force
during an arrest. Caselaw establishes that
tight handcuffing alone is insufficient to
state a claim of excessive force. E.g.
Burchett v. Kiefer, 310 F.3d 937, 944-45
(6th Cir. 2002). A plaintiff must
demonstrate not only that the officer had
notice that the force applied by the
handcuffs was excessive under the
circumstances, but also that the officer
failed to respond to such notice in a
reasonable manner. Id. Here, once
Officer Tate had received notice that the
force applied by the cuffs may have been
excessive, he responded reasonably under
the circumstances.
Yet even if the facts were
sufficient to state a claim of excessive
force, I would still be in dissent because I
believe that Officer Tate should be entitled
to qualified immunity. The Supreme
Court has repeatedly instructed that the
determination of qualified immunity
requires particularizing the constitutional
right “in light of the specific context of the
case.” Saucier v. Katz, 533 U.S. 194, 201
(2001). This is where I believe the
majority’s analysis falls short, because it
only relies on the broad proposition that
the Fourth Amendment secures the right to
be free from the use of excessive force
during an arrest, and concludes that
Officer Tate violated this clearly
established right. This analysis is flawed,
in my view, because it fails to determine
what the contours of the right were, and
neglects to recognize that the law did not
provide Officer Tate with fair warning that
he was required to respond more promptly
than he did to Kopec’s complaint that the
handcuffs were too tight.
I would, therefore, affirm the
District Court’s grant of summary
judgment in favor of Officer Tate.
I.
As the Supreme Court instructed
in Saucier, 533 U.S. at 201, the first
inquiry in deciding whether qualified
immunity is available is whether there was
a violation of a constitutional right. See
also Siegert v. Gilley, 500 U.S. 226, 231-
33 (1991). When an excessive force claim
arises in the context of an arrest, it must be
“analyzed under the Fourth Amendment
and its ‘reasonableness’ standard.”
Graham v. Connor, 490 U.S. 386, 395
(1989); see also Tennessee v. Garner, 471
U.S. 1, 8 (1985) (applying Fourth
Amendment’s reasonableness standard to
§ 1983 excessive use of force claim and
declaring that one of the factors to be
considered is “how [a seizure] is carried
out”). The Supreme Court has recognized
that the right to make an arrest “carries
with it the right to use some degree of

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11
physical coercion or threat thereof to effect
it,” and that “‘[n]ot every push or shove’”
violates the Fourth Amendment. Graham,
490 U.S. at 396 (quoting Johnson v. Glick,
481 F.2d 1028, 1033 (2d Cir. 1973)). The
Graham Court instructed that careful
attention must be given to “the facts and
circumstances of each particular case” and
that the 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.” 490 U.S. at 396.
Similarly, not every instance of
tight handcuffing offends the Fourth
Amendment’s right to be free from the use
of excessive force during an arrest.
Indeed, several of our sister circuits have
recognized as much8
In some circumstances, however,
tight handcuffing may give rise to a Fourth
Amendment violation. See Herzog v.
Village of Winnetka, 309 F.3d 1041, 1043
(7th Cir. 2002) (concluding that summary
judgment was improperly granted in favor
of the officers where plaintiff was arrested
without probable cause and handcuffed for
an hour despite complaints that the cuffs
were too tight). In determining whether
Kopec was deprived of his Fourth
Amendment right to be free from the use
of excessive force, it is instructive to
review the caselaw in which the facts have
been sufficient to state a claim. These
cases demonstrate that a viable excessive
force claim requires that the officer or
officers had either constructive or actual
notice that the force applied by the
8See also Braun v. Baldwin, 346 F.3d
761, 763 (7th Cir. 2003) (affirming, inter
alia, grant of summary judgment for
defendants on excessive use of force
claim based on tight handcuffing because
there was no indication “arrest was
effected in an unusual or improper
manner”); Burchett v. Kiefer, 310 F.3d
937, 944-45 (6th Cir. 2002) (summary
judgment for officers on excessive force
claim affirmed because officers removed
the handcuffs once plaintiff complained
they were too tight); Rodriguez v.
Farrell, 280 F.3d 1341, 1351 (11th Cir.
2002) (“painful handcuffing, without
more,” is not excessive force); Glenn v.
(continued...)
8(...continued)
City of Tyler, 242 F.3d 307, 314 (5th Cir.
2001) (declaring that “handcuffing too
tightly, without more, does not amount to
excessive force”); Carter v. Morris, 164
F.3d 215, 219 n.3 (4th Cir. 1999)
(finding that plaintiff’s allegation that
she was handcuffed too tightly was “so
insubstantial that it cannot as a matter of
law support her claim” of excessive
force); Foster v. Metro. Airports
Comm’n, 914 F.2d 1076, 1082 (8th Cir.
1990) (court affirmed grant of summary
judgment for officers based on tight
handcuffing, explaining that plaintiff’s
allegations of pain alone were
insufficient to support his claim of
excessive force).

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

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13
handcuffs are too tight and painful was
demonstrated in Burchett, 310 F.3d at 937.
There, the plaintiff, who had been
handcuffed for three hours in a police
cruiser, showed his family that his hands
were swollen and blue. Id. at 941. The
family, in turn, pointed this out to the
officers, who agreed to release the plaintiff
if he promised to behave. After the
plaintiff agreed, the cuffs were released.
Id. Thereafter, plaintiff claimed that the
officers had violated his civil rights by
using excessive force. The Sixth Circuit
disagreed.
The Burchett Court recognized
that “applying handcuffs so tightly that the
detainee’s hands become numb and turn
blue certainly raises concerns of excessive
force.” Id. at 944. Furthermore, the Court
acknowledged that its own precedents
allowed a plaintiff to get to a jury by
showing that “officers handcuffed the
plaintiff excessively and unnecessarily
tightly and ignored the plaintiff’s pleas
that the handcuffs were too tight.” Id. at
944-45 (citing Kostrzewa, 247 F.3d at 641,
and Heideman, 106 F.3d at 1310, 1313).
Unlike other cases presenting a
constitutional violation, the Court
explained, the record gave “no indication
that [plaintiff] had previously complained
or advised the officers that the handcuffs
were too tight. . . . Until [the officers] had
notice that the handcuffs were too tight,
the officers were unaware of the problem.”
Burchett, 310 F.3d at 945 (emphasis
added). Because the officers had
responded to the plaintiff’s lone complaint
by removing the cuffs, the Court
concluded that there was no violation of
the plaintiff’s Fourth Amendment right.
II.
In determining whether the record
in this case presents facts sufficient to
demonstrate a claim of excessive force, I
consider those facts, as the majority also
has, in the light most favorable to Kopec.
See Saucier, 533 U.S. at 201 (instructing
courts to consider threshold question of
whether there is a constitutional violation
in the light most favorable to the injured
party). Accordingly, I rely upon Kopec’s
account of events. I set forth the facts
separately here so that, consistent with
Graham, they may be analyzed from the
perspective of a reasonable officer on the
scene. Graham, 490 U.S. at 396.
It is undisputed that Officer Tate
apprehended Kopec and Smith while they
were trespassing on private property
around 11 p.m. on a cold, snowy night.
Thus, he had probable cause to arrest
them. Officer Tate advised Kopec and
Smith, however, that “he was going to let
[them] go and it was no big deal and that
he needed [their] names and addresses” to
fill out a report. Kopec inexplicably
refused to cooperate with this simple
request. Officer Tate then explained why
he needed the information. Kopec still
refused to provide any information to
Officer Tate, prompting the officer to
advise the pair that they were “not in
trouble and that it was just procedure.”
Kopec was unmoved. Officer Tate then

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14
arrested and handcuffed Kopec.
According to Kopec, the officer
placed the cuffs on me.
We were about 30 feet
from his cruiser. Put the
cuffs on behind my back
and we started to walk
towards his cruiser.
And in a
very short time, within
about ten seconds, I
began to lose feeling in
my right hand. And I
asked if he could loosen
the handcuff, that it was
too tight. And we
c o n t i n u e d w a l k i n g
towards the cruiser and I
asked him if this is what
he does when people
d o n ’ t g i v e h i m
information.
* * *
He ignored me. We got
to the cruiser, to the
back door, and he spun
me, turned me around so
that my back was facing
the back door. And he
proceeded to walk back
to Pam the 30 feet.
And I asked
him again. The pain
became unbearable to
me and I asked him if
c o u l d t a k e t h e
handcuff[s] off and
again asked if this is
what he did to get
information out from
people.
The officer proceeded to interview Smith.
Kopec fell to his knees and groaned: “Get
the cuffs off, I can’t feel my hand.” Kopec
then stated that the pain was “unbearable.”
Officer Tate acknowledged the complaint
and informed Kopec that he would “be
there in a minute.” Kopec groaned again:
“Get these cuffs off, I can’t feel anything
right now.” Officer Tate stopped
interviewing Smith, returned to the cruiser,
and assisted Kopec up off the ground. In
order to assess the restrictiveness of the
cuffs, Officer Tate escorted Kopec to the
rear of the cruiser and laid him on the
trunk to view the restraints. Officer Tate
asked him if it was permissible to remove
Kopec’s gloves. After Kopec assented,
Tate loosened the cuffs.
Kopec’s initial statement to
Officer Tate did not communicate
anything more than a complaint about
tightness. From the perspective of a
reasonable officer, it would not have been
unusual for an arrestee to initially request
that the cuffs be adjusted or loosened.
Handcuffs, by their very nature, are
restrictive, uncomfortable, and unfamiliar
to most individuals. Although Kopec
affirmed during his deposition that he
experienced a loss of feeling within about
ten seconds of being cuffed, careful

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15
reading of his testimony reveals that he did
not express this to Officer Tate.
Kopec’s second request to have
the cuffs removed was also devoid of any
suggestion that the cuffs were too
restrictive or were causing him pain.
Although Kopec testified to the effect that
he experienced unbearable pain, he did not
advise Officer Tate of that fact. Rather,
Kopec testified that he “asked him if he
could take the handcuff[s] off and again
asked if this is what he did to get
information out from people.” From a
reasonable officer’s viewpoint, this second
request to remove the cuffs, together with
the repeated inquiry about Officer Tate’s
tactics for obtaining information, could
reasonably be viewed as theatrics by
Kopec protesting his arrest and the
application of handcuffs.
When Kopec fell to the ground,
groaned, and stated that he could not feel
his hand, Officer Tate was, for the first
time, put on notice that the force applied
by the cuffs may have been excessive. In
light of Kopec’s earlier conduct, a
reasonable officer would have had reason
to question the genuineness of this
complaint. Because this complaint may
have been theatrics and because Officer
Tate was legitimately engaged in
interviewing Smith, it was not
unreasonable for Officer Tate to proceed
with the task in which he was already
engaged. Indeed, interviewing Smith was
necessary because of Kopec’s refusal to
provide any information whatsoever.
When Kopec groaned again and demanded
that Officer Tate remove the cuffs because
he was unable to feel his hand, Officer
Tate interrupted his interview of Smith and
returned to Kopec’s side to evaluate the
cuffs.
Viewed from the perspective of a
reasonable officer, Tate’s conduct was not,
in my view, unreasonable. He was
constitutionally permitted to apply some
force in arresting Kopec. After receiving
notice that the force applied by the cuffs
may have been excessive, Officer Tate
responded reasonably.
I acknowledge that there was a
brief delay in responding to Kopec’s
complaints. That delay, however, was not
unreasonable in the absence of any
indication of pain or suffering in Kopec’s
initial statements that would have
conveyed to Tate that the force was
excessive under the circumstances. Once
Kopec fell to the ground and demanded the
removal of the cuffs claiming a lack of
feeling in his hand, Officer Tate advised
that he would “be there in a minute” and
responded within a reasonable period of
time.
In my view, the totality of the
circumstances considered by the majority
has not adequately taken into account the
fact that there was only one officer at the
scene, and that he was occupied with
another task that was a legitimate police
duty. In explaining its assessment of the
attendant circumstances, the majority
points out that Officer Tate “faced rather

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16
benign circumstances that hardly justified
his failure to respond more promptly to
Kopec’s entreaties . . . . Officer Tate was
not, after all, in the midst of a dangerous
situation involving a serious crime or
armed criminals.” Slip op. at 7. I agree
that Officer Tate was not immediately
confronted with a dangerous situation. Yet
from the perspective of a reasonable
officer, on the scene alone and dealing
wit h two trespassers who wer e
inexplicably unresponsive to his inquiries,
there was justification for the officer’s
refusal to immediately indulge Kopec’s
initial requests so that the interview with
Smith might continue.
In sum, I conclude that Kopec has
failed to establish that there was a
violation of his Fourth Amendment right
to be free from the use of excessive force.
Ordinarily, in the absence of a
constitutional violation, “there is no
necessity for further inquiries concerning
qualified immunity.” Saucier, 533 U.S. at
201. I address the issue of qualified
immunity only because I believe that, even
if there was sufficient evidence to
demonstrate a constitutional violation,
Officer Tate should be accorded qualified
immunity.
III.
The Suprem e Cou rt has
r e p e a t e d l y i n s t r u c t e d t h a t t h e
determination of qualified immunity
requires particularizing the constitutional
right and determining the contours of that
right. See Saucier, 533 U.S. at 201-02
(discussing Anderson v. Creighton, 483
U.S. 635, 640 (1987)). In Saucier, the
Supreme Court held that a “ruling on
qualified immunity requires an analysis not
susceptible of fusion with the question
whether unreasonable force was used in
making the arrest.” 533 U.S. at 197.
Thus, the determination of whether there is
a constitutional violation is not co-
extensive with the issue of whether a
government official is entitled to qualified
immunity. For that reason, the Supreme
Court laid out the now familiar framework
for analyzing qualified immunity claims,
instructing that the first inquiry is whether
there is a constitutional violation. Id. at
200. If such a violation is demonstrated,
the next “step is to ask whether the right
was clearly established.” Id. at 201. The
Supreme Court reiterated that this second
“inquiry, it is vital to note, must be
undertaken in the light of the specific
context of the case, not as a broad general
proposition.” Id. (emphasis added).
Consistent with this iteration, the
Saucier Court observed that Graham’s
general proposition that the use of
excessive force is contrary to the Fourth
Amendment was not particularized enough
for the purpose of determining whether the
law was clearly established. 533 U.S. at
201-02. Quoting Anderson v. Creighton,
the Court emphasized that the “‘contours
of the right must be sufficiently clear,’”
and it instructed that

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17
[ t ] h e r e l e v a n t ,
dispositive inquiry in
determining whether a
r i g h t i s c l e a r l y
established is whether it
would be clear to a
reasonable officer that
h i s c o n d u c t w a s
unlawful in the situation
he confronted. . . . If the
law did not put the
officer on notice that his
conduct would be clearly
u n l a w f u l , s u m m a r y
judgment based on
qualified immunity is
appropriate.
Saucier, 533 U.S. at 202 (quoting
Anderson, 483 U.S. at 640).
In Bennett v. Murphy, 274 F.3d
133, 136 (3d Cir. 2002), we observed that
the two- part test enunciated in Saucier
“clarif[ied] the analysis to be undertaken
by district courts and courts of appeals
considering claims of qualified immunity
in cases alleging excessive use of force.”
Although my colleagues have employed
the two-part test set forth in Saucier, I do
not believe that their reliance on only the
Fourth Amendment’s broad, general
proscription against the use of excessive
force is sufficient because it fails to take
into account the situation confronting
Officer Tate.
S u p re m e Co urt qu alif ie d
immunity jurisprudence has long required
that courts undertake a particularized
inquiry. In the seminal case of Anderson,
the Supreme Court observed that the
determination of whether there is qualified
immunity “depends substantially upon the
level of generality at which the relevant
‘legal rule’ is to be identified.” 483 U.S.
at 639 (examining qualified immunity in
the context of a warrantless search). The
Court recognized that if the test were
applied at a general level, as I believe the
majority does here, then “[p]laintiffs
would be able to convert the rule of
qualified immunity that our cases plainly
establish into a rule of virtually
unqualified liability. . . .” Id. Whether a
legal rule is “clearly established,” the
Court instructed, must be considered in a
more particularized, and
hence, more relevant
sense: The contours of
the right must b e
sufficiently clear that a
r e a s o n a b l e o f f i c i a l
would understand that
what he is doing violates
that right. This is not to
say an official action is
protected by qualified
immunity unless the very
action in question has
previously been held
unlawful, but it is to say
that in the light of pre-
e x i s t i n g l a w t h e
unlawfulness must be
apparent.
Id. (citations omitted) (emphasis added).

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18
Subsequently, in Wilson v. Layne,
526 U.S. 603 (1999), the Supreme Court
concluded that allowing the media to ride
along during the execution of a search
warrant violated the Fourth Amendment.
In determining whether qualified immunity
was available to the officers, the Supreme
Court reviewed its decisions in Harlow v.
Fitzgerald, 457 U.S. 800 (1982), and
Anderson, supra, observing that
[i]t could plausibly be
a s s e r t e d t h a t a n y
violation of the Fourth
Amendment is “clearly
established,” since it is
clearly established that
the protections of the
F o u r t h A m e n d m e n t
apply to the actions of
police. . . . However, as
w e e x p l a i n e d i n
Anderson, the right
allegedly violated must
be defined at the
appropriate level of
specificity before a court
can determine if it was
clearly established. In
this case, the appropriate
question is the objective
i n q u i r y w h e t h e r a
reasonable officer could
have believed that
bringing members of the
media into a home
during the execution of
an arrest warrant was
lawful, in light of clearly
established law and the
information the officers
possessed.
526 U.S. at 615 (emphasis added)
(citations omitted). The Court held that it
was not unreasonable for the officers to
believe their conduct was lawful. In
explaining its holding, the Supreme Court
pointed to the absence of caselaw
regarding the constitutionality of allowing
the media to accompany police, as well as
the existence of a government policy by
the United States Marshal Service
regarding the practice, and declared that
the “state of the law . . . was at best
undeveloped.” 536 U.S. at 618. The
Court further noted that a circuit split had
developed on the question and declared
that “[i]f judges thus disagree on a
constitutional question, it is unfair to
subject police to money damages for
picking the losing side of the controversy.”
Id.
Most recently, in Hope v. Pelzer,
536 U.S. 730 (2002), the Supreme Court
r e v e r se d t h e E leven th Circ uit’ s
determination that qualified immunity
precluded liability for a prisoner’s claims
that his Eighth Amendment rights had
been violated when he was handcuffed to
a hitching post for seven hours. Citing its
earlier precedents, the Supreme Court
declared that the “salient question . . . is
whether the state of the law in 1995 gave
respondents fair warning that their alleged
t r e a t m e n t of [the inm ate] w a s
unconstitutional.” Id. at 741 (emphasis

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19
added). It concluded that the defendant
officials had fair warning that the use of
the hitching post under the circumstances
alleged by Hope was unlawful, noting two
Eleventh Circuit decisions and a report by
the Department of Justice regarding the
unconstitutionality of Alabama’s practice
of using the hitching post. Id. at 743-45.
In addition, the Court observed that the
“obvious cruelty inherent in this practice
should have provided respondents with
some notice that their alleged conduct
violated Hope’s constitutional protection
against cruel and unusual punishment.”
Id. at 745-46.
Accordingly, consistent with
Hope, Saucier, Wilson and Anderson, I
consider what the contours of the right
were at the time of Kopec’s arrest and
whether they were sufficiently clear to put
Officer Tate on notice that his conduct
would violate the Fourth Amendment right
to be free from the use of excessive force.
Saucier, 533 U.S. at 202.
In February 2000, only a handful
of cases of § 1983 claims involving tight
handcuffing were extant. See Carter v.
Morris, 164 F.3d 215, 219 n.3 (4th Cir.
1999); Heitschmidt v. City of Houston, 161
F.3d 834, 839-40 (5th Cir. 1998); Martin
v. Heideman, 106 F.3d 1310, 1313 (6th
Cir. 1997); Alexander v. County of Los
Angeles, 64 F.3d 1315, 1323 (9th Cir.
1995); Palmer v. Sanderson, 9 F.3d 1433,
1436 (9th Cir. 1993); Foster v. Metro.
Airports Comm’n, 914 F.2d 1076, 1082
(8th Cir. 1990). Significantly, in Carter
and Foster, tight handcuffing alone was
insufficient to establish an excessive force
claim. The remaining cases, however,
concluded there were sufficient facts to
dem onstrate a Fourth Amendment
violation. As I point out above, the
common thread in these latter cases is that:
(1) the arrestee complained that the cuffs
were too tight and painful, thereby
providing notice to the officer(s) that the
force applied may have been excessive
under the circumstances; and (2) the
officer(s) failed to reasonably respond to
the arrestee’s complaints. Thus, the
caselaw in February 2000 established that
liability may attach if an officer
unreasonably ignores or is indifferent to
the complaints of an arrestee that the force
applied by the handcuffs may be excessive
under the circumstances.
Prior to the incident at issue in
this case, the caselaw did not provide any
guidance with respect to how quickly an
officer must respond to a complaint that
handcuffs have been applied too tightly.
Nor was there any guidance in the cases as
to how an officer should prioritize his
response when there are other tasks in
which he is legitimately engaged or may
be required to undertake at the time.
In light of this caselaw, I conclude
that Tate could have reasonably believed
that his response to Kopec’s complaints
was lawful. To put it another way, I
believe the law did not put Officer Tate on
notice that he had to respond immediately
to Kopec’s complaint that the handcuffs

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20
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.

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