An area of liability that is sometimes given very little attention is handcuffing. Clearly, handcuffing is a frequently recurring law enforcement task, but is it a high-risk critical task? There can be little question that handcuffing is a high-frequency/high risk critical task.

Consider two cases reported in the media. The first involved a Florida neuro-surgeon, Angelo Gousse. Dr. Gousse was visiting Los Angeles for a conference at the UCLA Medical Center when he got lost attempting to find his hotel in Santa Monica. Dr. Gousse was pulled over by the police in a high-risk traffic stop. When he asked the officers what was wrong they told him he was informed that he was driving a stolen vehicle. Dr. Grousse begged the officers to check the paperwork in the vehicle’s glove compartment which would prove that he had just rented the vehicle from Budget Rental. The officers did not check the paperwork.

Dr. Grousse continuously complained about the tightness of his handcuffs, but officers failed to loosen the cuffs.

The initial jury award in Dr. Grousse’s case was 33 million dollars with the LAPD to pay 14.2 million and Budget Rental to pay 18.8 million dollars. The judge has since vacated the jury’s award, however the case exemplifies how critical handcuffing can be from the liability standpoint.

More recently, police in Highland Park, Texas have come under criticism for handcuffing and arresting a 97-year-old woman for a minor traffic warrant. It should be noted in this case, the elderly woman was handcuffed in the front rather than behind her back. According to new reports of the incident, the police responded that they have a “no-exceptions” policy.

From a policy perspective, officers should be given some discretion on handcuffing, particularly when officers are dealing with vulnerable classes such as the elderly. There have been cases where officers have assisted an elderly arrestee in putting their hands together behind their backs only to damage stiff and brittle bones. A bit of discretion may have avoided these injuries.

It must be recognized that courts have consistently held that handcuffing is a use of force and as such must meet the reasonableness requirements of Graham v. Connor. i The three-part test looks at (1) the severity of the offense suspect; (2) whether the suspect posed an immediate threat to the officer or others; and (3) whether the suspect was actively resisting or attempting to evade arrest by flight. One can imagine a court’s application of the three-part test to a 97-year-old being arrested for violating a traffic law.

Many of the reported decisions on handcuffing include facts of failing to double-lock the handcuffs or ignoring complaints that the handcuffs are too tight.

A case decided by the United States Court of Appeals for the 3rd Circuit provides a good example. Kopec v. Tate ii involved a man and a woman who had trespassed on a frozen lake at an apartment complex where the female lived.

Officer Tate responded to an anonymous call and told the couple to get off the lake. The couple complied. Officer Tate decided to document the couple’s names. When the man, Michael Kopec, refused to give his name, Officer Tate arrested him for disorderly conduct.

Within seconds of being handcuffed, Kopec lost the feeling in his right hand. Kopec began asking that the handcuffs be loosened. Kopec’s several requests were ignored for almost ten minutes before Tate loosened the cuffs. In the resulting lawsuit, Kopec claimed nerve damage that required treatment by a hand surgeon for more than a year.

In its review of Kopec’s excessive force (handcuffing) claim, the court applied the three-part test from Graham. The court noted that Kopec’s offense was minor and the officer was not initially going to arrest him. Kopec offered no threat and made no attempt to resist or escape. The court concluded that if Kopec’s claims were true, specifically that Tate had put the cuffs on too tightly and refused to respond to Kopec’s complaints, excessive force would be established. The court also rejected Officer Tate’s qualified immunity claim citing numerous court decisions holding that excessively tight handcuffs may constitute excessive force under the Fourth Amendment.

Policy Questions:

• Do officers have some discretion when dealing with vulnerable classes such as the elderly or emotionally disturbed?
• Does policy dictate double-locking and checking for tightness?
• Does policy dictate an immediate response to a suspect’s complaints with respect to tightness of handcuffs?

i 490 U.S. 386 (1989).

ii Kopec v. Tate, 361 F.3d 772 (3rd Cir. 772 ( 3/17/2004)