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| This article examines recent decisions addressing the use of handcuffs so as to identify specific risks associated with handcuffing and to make particular recommendations to diminish these liabilities. Consider two cases recently reported in the media. The first involved a Florida urological reconstructive 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, he was informed that he was driving a stolen vehicle. Dr. Gousse begged the officers to check the paperwork in the vehicle's glove compartment that would prove he had just rented the vehicle from Budget Rental. The officers did not check the paperwork. Although Dr. Gousse continuously complained about the tightness of his handcuffs, officers failed to loosen them. Dr. Gousse later sued the police as well as Budget Rental Car. Dr. Gousse's hand injury resulted in a licensing restriction on his ability to perform certain surgeries. The initial jury award in Dr. Gousse's case was $33 million, with the LAPD to pay $14.2 million and Budget Rental to pay $18.8 million. Although the judge has since vacated the jury's award, 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 97year-old woman for a minor traffic warrant. It should be noted that 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. After a week of negative publicity, however, the agency announced a change in its handcuffing policy. At the outset 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. Graham's three-part test on the reasonableness of any use of force considers (1) the severity of the offense suspected; (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. Identified Risk
1: Tightness of Handcuffs 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 10 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. Identified Risk 2: Person with Pre-Existing Injury Michelle Aceto, described by the court as a small
woman, was arrested on May 23, 2000 on an outstanding warrant for
failure to pay a fine for speeding. The warrant was 13 years old,
having been issued in 1987. Aceto informed the arresting officers
that she had recently suffered an injury while playing hockey and
could not be handcuffed behind her back without suffering further
injury. The arresting officers handcuffed Aceto in the front and
took her to their station for booking. After being in the police
station for approximately 45 minutes, officer Kachajian began the
process of transporting Aceto to court. Aceto informed the officer
of her pre-existing injury as she had done with the arresting officer
and provided the officer with the names of her two doctors who could
be called to verify the injury. Kachajian indicated that he would
check her documentation. A short time later, Kachajian returned
and ordered Aceto to place her hands behind her back to be handcuffed
1. While officer Kachajian, assisted by officer Lavoie, handcuffed
Aceto "something popped." Aceto was later diagnosed with
a herniated disk Identified Risk 3: Handcuffing for Officer Safety Fakorzi v. Dillard's Inc. and the City of Coralville, provides an example of how this recurring law enforcement task will be analyzed by a court. The case involved an arrest at Dillard's department store of some individuals who were passing bad checks. As officers prepared to transport the individuals to the police station, they received an additional call that another person, Fakorzi, had attempted to pay by check but the check had been declined. The officers believed that Fakorzi may be involved with the group already under arrest when in fact she had merely hit a store limit on using checks as a payment method. Officers responded to Dillard's and almost immediately handcuffed Fakorzi and her companion Cornejo. The pair remained handcuffed for approximately 30 minutes before the officers determined that they were not involved in any wrongdoing. Fakorzi and Cornejo filed suit against all of the parties involved. In its analysis, the court determined that the officers had reasonable suspicion to stop Fakorzi and Cornejo based on the prior arrest and the report from the police department's dispatcher regarding the declined check. The court then analyzed the handcuffing in terms of the Graham use of force analysis. First, the suspected crime was passing bad checks, not generally a crime of violence. Second, the court noted that the officer did not frisk Fakorzi or Cornejo and thus concluded that the officer must not have suspected that either was armed. The court found that there was no articulable safety threat to the officer and that the stop should have been conducted without the handcuffing and 30 minute detention. The court refused to release the City of Coralville from the suit after determining that handcuffing is a recurring police task that, if not properly executed, is likely to lead to constitutional violations. The court concluded that a jury would decide if the city had properly trained its officers on the proper use of handcuffs. Avoiding /Controlling Risk Some factors to consider when reviewing department
policy and officer training include: From a policy and training perspective, officers should be given some discretion in handcuffing, particularly when officers are dealing with vulnerable classes such as the elderly, those with disabilities and those arrestees who indicate that they have a pre-existing injury. This discretion may include the option of frontal handcuffing. There have been cases in which officers have assisted elderly arrestees in placing their hands together behind their backs only to damage stiff and brittle bones. A bit of discretion may have avoided these injuries. Additionally officers must be trained that handcuffing is a use of force and must be supported by articulable facts and circum stances that would support its use. In light of the numerous cases on point, policy and training should stress the need for officers to double-lock handcuffs after insuring that the handcuffs are not so tight as to potentially cause injury. Officers who adhere to these policy and training issues will also avoid personal liability risk with respect to their handcuffing of prisoners. The best way to avoid liability is to identify risks and take steps to avoid or control those risks. Agencies should not wait until it is their turn to look down the liability barrel before making changes that would have kept them out of plaintiffs' sights in the first place. 1 Graham v. Connor, 490 U.S. 386 (1989). |
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