SIXTH CIRCUIT DISCUSSES HANDCUFFING AND EXCESSIVE FORCE
by Brian S. Batterton, Attorney
©2016 Brian S. Batterton, Attorney, Legal & Liability Risk Management Institute (www.llrmi.com)
On August 16, 2016, the Sixth Circuit Court of Appeals decided Getz v. Swoap et. al , in which they examined whether an officer’s use of handcuffs on an arrestee constituted a Fourth Amendment violation. At the outset of the opinion, District Judge Cleland made a statement that rings particularly true in today’s politically charged atmosphere that surrounds opposition to law enforcement. Judge Celand began the opinion by stating
This Fourth Amendment excessive force claim, through 42 U.S.C. § 1983, arises from the familiar setting of an interaction between an officer and an angry, uncooperative citizen. The facts illustrate yet again why it is a bad idea to question and argue, and to physically resist an investigating officer's reasonable commands and directions.[ii] [emphasis added]
The relevant facts of Getz, taken directly from the case, are as follows:
About 7:20 p.m. on November 27, 2011, Deputy Jody Swoap was sitting in his police cruiser on Carter Road outside of Bowling Green, Ohio. While observing traffic, he saw an oncoming 2004 Chevrolet Cobalt pass him with only one operational headlight. Robert Getz was driving. Swoap turned and followed, intending to pull the car over and issue a warning about the defective headlight. As Getz turned south on Sugar Ridge Road, Swoap switched on his overhead lights, but Getz did not immediately pull over. Swoap followed until Getz turned into a residential driveway. Unbeknownst to Swoap, it was Getz's home.
Swoap also turned into the driveway and radioed the dispatcher his location. The radio log establishes that Swoap's transmission occurred at 7:22 p.m.
Getz did not stop in the driveway but instead passed the house, continuing down the driveway until he reached a barn. Getz circled around in front of the barn and drove the car back in Swoap's direction, stopping only once he was, according to Swoap, "bumper to bumper to me close enough to where I could not read his license plate." Swoap radioed in a description of the car and directed his spotlight at the car and driver, recognizing the driver as an older male. At his deposition, Swoap described Getz at this point as appearing "agitated . . . [h]is mouth and his forehead just looked like he was not happy."
As Swoap was radioing the car's description to dispatch, Getz's car lunged forward a short distance, started to back up, and then angled as though to drive around Swoap's cruiser. To prevent Getz from leaving the driveway, Swoap moved the cruiser and positioned it so that Getz could not drive around him. Getz's car continued to approach the cruiser, which was now blocking the driveway. Swoap exited the cruiser, stood in the driveway, and yelled for Getz to stop. Getz, however, continued to drive slowly toward Swoap as Swoap repeatedly told Getz to stop. Eventually, Swoap drew his sidearm and again directed Getz to stop, shut off the car, and exit the vehicle. This time Getz complied. Once Getz was out of the car and it was obvious he was not armed, Swoap holstered his gun.
Getz was angry. Swoap stated that Getz told him to "get the fuck off his property." When Swoap told Getz the reason for the traffic stop and asked Getz for his name, Getz yelled, "Do you know who I am? Everybody knows who I am." Getz continued to yell and argue until Getz said "fuck this" or "screw this, I'm leaving." Swoap informed Getz several times that he was not free to leave, but Getz got back in his car. At this point Swoap called for backup. Then, with Getz seated in his car gripping the steering wheel, Swoap reached into the car and attempted to remove Getz's left hand from the wheel while ordering him out of the car. Getz resisted, pushing Swoap away with his shoulder and generally pulling away from Swoap.
Swoap finally pulled Getz out of the car, informed him that he was under arrest, and ordered him to put his hands behind his back. Swoap again called for backup, this time telling dispatch to "step it up," which Swoap says signaled that "there was a serious potential for somebody to get hurt or there's force being used and I needed somebody there quickly." Getz refused to put his hands behind his back and said he was going inside the house. The radio log establishes that Swoap asked dispatch to "step it up" at 7:23 p.m.
When Getz walked toward the front of the police cruiser in the direction of his house, Swoap informed him that he was not allowed to enter the house and that he needed to place his hands behind his back. Swoap grabbed Getz's upper arm as he told him to place his arms behind his back. When Getz failed to comply Swoap performed a hip-check maneuver to unbalance Getz, gain control of him, and handcuff him. In response, Getz turned around and sprawled chest down over the hood of the cruiser gripping opposite ends of the hood, making application of the handcuffs more difficult. Swoap repeatedly ordered Getz to put his hands behind his back but eventually had to grab Getz's right arm and rotate Getz's body around towards his left arm so that he could place the handcuffs on both wrists. When Swoap finally managed to handcuff Getz, he did not check for tightness or double lock the cuffs. After the cuffs were on, he told Getz to walk to the other side of the cruiser, but Getz continued to resist and again pulled away, saying he was going into the house. Swoap maintained control and walked Getz to the other side of the cruiser, though Getz was still noncompliant and "locked up his legs . . . [and] his upper body," refusing to follow Swoap's directions. At 7:24 p.m., Swoap radioed dispatch and reported he had Getz in custody.
At this point Trisha Getz, Robert Getz's daughter, arrived at the scene, and here, Plaintiff's and Defendant's versions of the facts diverge. The firsthand accounts of the events that followed were provided by Robert's wife and daughter, Trisha and Beverly; Sergeant Timothy Spees, an officer who arrived on the scene; and Deputy Swoap.
B. Trisha's Testimony
Trisha recounts seeing Swoap leaning against Getz and pushing Getz's face against the window of the Chevrolet as she pulled up to the house. When Trisha approached, Swoap told her that Getz was under arrest. Trisha informed Swoap that she was Getz's daughter. Around this time Trisha says, "Dad then got to sit down in his car 'cause he said he needed to sit . . . we asked [Swoap] if dad could sit down." While sitting, Getz told Trisha "these handcuffs are killing me. My hands hurt so bad. Can you just ask him—I have asked him several times to get the handcuffs loosened." According to Trisha, Getz complained "20 times about his hands" and that she could see his hands bleeding. She retrieved wipes from her car to clean up blood from Getz's wrists and from a cut on his face. Swoap offered to call emergency medical services, but Getz and Trisha declined, saying he only needed his oxygen inside the house to treat a breathing condition.
At some point after Trisha retrieved the wipes from her car, she says that Swoap asked her if she lived at the house. Though she did not live there she told Swoap she did, and Swoap told her to leave, go into the house, or face possible arrest for "invading my crime scene." Trisha asked Swoap to loosen the handcuffs and then entered the house to inform her mother, Beverly, of what was happening outside. Trisha asked Beverly to go outside and monitor the situation while she called her brother, Getz's son, Tim. Beverley, before that point, had been unaware of the goings-on in the driveway.
Trisha estimates that 20 minutes passed between her arrival at the scene and her call to Tim. Trisha did not return outside until after her father was released from his handcuffs, but she did testify that once her father came into the house, he told her that when Sergeant Spees arrived, he "went over and took his handcuffs off immediately" and told Getz to "go inside, get yourself cleaned up and get some oxygen."
C. Beverly Getz's Testimony
Mrs. Getz testified at deposition that she walked outside after Trisha spoke to her and that "Deputy [sic] Spees pulled in shortly after that." Though not part of Mrs. Getz's testimony, both parties agree, based on the police radio log, that Sergeant Spees arrived at 7:29 p.m., approximately four and a half minutes after Getz was arrested. When she and Getz spoke to Spees to ask him to loosen the cuffs, "[Spees] took them right off." Mrs. Getz could not say how long Spees had been there when the handcuffs came off, though she thought "[h]e had just arrived."
D. Deputy Swoap's Testimony
Deputy Swoap's version of the story differs. At deposition, he stated that he tried to make Getz sit in the back passenger seat of his cruiser but that Getz refused. Trisha arrived around this time but remained by her car. Less than a minute later, Spees arrived and began communicating with Getz. Spees took over primary communication with Getz because they seemed to have a better rapport, though Swoap approached Getz "numerous" times after Spees' arrival to ask if Getz needed medical attention. Each time, according to Swoap, Getz refused emergency medical services and continued to either ignore Swoap or become "argumentative" again. Swoap testified that it was Spees who got Getz to sit down and that he sat in the back of Swoap's cruiser, not his own car. After putting Getz in the cruiser, Spees returned to ask Swoap if he was aware that Getz was bleeding. Swoap said he was not. Shortly thereafter Swoap says he removed the handcuffs from Getz to allow Getz to use his inhaler. Swoap estimates that Getz was handcuffed "[p]robably less than five [minutes]."
E. Sergeant Spees' Testimony
At Sergeant Spees' deposition, he also said he remembered Swoap removing Getz's handcuffs, and estimated that happened "less than ten minutes" after his arrival. Sergeant Spees' testimony differs a bit from Swoap's, in that he remembers both Trisha and Beverly standing outside on the lawn when he arrived. [iii]
Getz sued Deputy Swoap for false arrest and excessive force and sued the sheriff for failure to train and supervise. Deputy Swoap and the Sheriff Wood filed for summary judgment and the district court granted summary judgment in favor of Swoap and Wood. Getz appealed, but only raised the issue of whether the initial handcuffing and alleged failure to adjust the handcuffs after Getz complained violated the Fourth Amendment.
The court began its opinion by discussing the law relevant to use of force under the Fourth Amendment. Specifically, the court stated
We apply the Fourth Amendment's unreasonable seizure jurisprudence when analyzing such claims. Morrison, 583 F.3d at 400. Whether an officer has exerted excessive force during the course of a seizure is determined under an "objective reasonableness" standard. Id. at 401 (citing Graham v. Connor, 490 U.S. 386, 396-97 (1989)).
In assessing objective reasonableness, "courts must balance the consequences to the individual against the government's interests in effecting the seizure." Burchett v. Kiefer, 310 F.3d 937, 944 (6th Cir. 2002) (citing Graham, 490 U.S. at 396). While the analysis is fact specific, three factors are of particular relevance: "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 is actively resisting arrest or attempting to evade arrest by flight." Darrah v. City of Oak Park, 255 F.3d 301, 307 (6th Cir. 2001) (citing Graham, 490 U.S. at 396). We judge the lawfulness of the conduct from the "perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Morrison, 583 F.3d at 401 (quoting Graham, 490 U.S. at 396).[iv]
The court then set out to examine whether the initial handcuffing was excessive force in violation of the Fourth Amendment. The first factor the court examined was, from Graham v. Connor above, was the severity of the crime at issue. The initial crime committed by Getz was a defective headlight which is a minor crime. While this would weight in Getz’s favor, the court then observed that Getz escalated the situation by his attempt to flee and his resistance; the court said that this diluted the benefit he might obtain from the initial minor nature of his offense.
The court then examined the second factor from Graham, particularly whether Getz was a threat to the officer or others. The court reasoned that Getz’s attempt to escape by driving around Swoap’s car, and stopping only after Swoap drew his firearm posed both a threat to Swoap and to the public, if a car chase would have become necessary.
The court also examined the third factor from Graham, whether the Getz was actively resisting arrest or attempting to flee. The court noted that Getz did both. First, he attempted to flee in his car by trying to drive around Swoap. He also repeated told Swoap that he intended to flee. Second, Getz resisted handcuffing by walking away, and then grabbing the hood of the police car to prevent Swoap from applying the handcuffs. After Getz was handcuffed, he still acted belligerently, yelled profanity at Swoap, and locked his legs to resist being placed in a police car.
The court then discussed the fact that Swoap did not double lock the handcuffs or check them for tightness, as is normally required when handcuffing an arrestee. The court discussed the law related to this and stated the following:
Swoap admits that he did not double lock or check the handcuffs for tightness. But even assuming the handcuffs were tight enough to cause abrasions, or tightened at some point because of the failure to double lock, a failure to take such additional cautions, in the context of a struggling arrestee now only subdued and partially mollified, is understandable and not all conduct that causes an arrestee discomfort or pain violates the Fourth Amendment. See Graham, 490 U.S. at 396 ("Not every push or shove, even if it may later seem unnecessary . . . violates the Fourth Amendment."). This is especially true where the subject resists arrest and the use of force is necessary to establish control and restrain the individual. See Burchett, 310 F.3d at 944. Further, we have never held that an officer's failure to check for tightness or double lock handcuffs at the moment of arrest is, per se, excessive force. The analysis is, as always, fact specific and based on the totality of the circumstances. Kostrzewa v. City of Troy, 247 F.3d 633, 639 (6th Cir. 2001).[v] [emphasis added]
The court then held that due to Getz’s noncompliance and resistance, Swoap did not violate the Fourth Amendment when he handcuffed Getz and did not immediately check the fit and double lock the handcuffs.
The second issue before the court was whether Swoap violated the Fourth Amendment by failing to inspect and adjust the handcuffs after Getz allegedly complained that the handcuffs were too tight. Regarding, this type of claim, the court stated
In order for a handcuffing claim to survive summary judgment, a plaintiff must offer sufficient evidence to identify a genuine issue of material fact that (1) he complained the handcuffs were too tight; (2) the officer ignored those complaints; and (3) the plaintiff experienced "some physical injury" resulting from the handcuffing.[vi] [emphasis added]
The court examined precedent applicable to the facts of Getz’s case and noted three applicable principles which were as follows:
• [E]xcessive-force-handcuffing cases almost exclusively involve plaintiffs who were compliant and gave officers no reason to delay responding to their complaints, and we have always noted such compliance. See, e.g., Baynes v. Cleland, 799 F.3d 600, 604 (6th Cir. 2015)[vii]
• Even cases in which a noncompliant arrestee resists or flees fail to provide much guidance to officers in defining the contours of the right to be free from excessively tight handcuffing. In many of those cases we found no violation either because officers immediately responded when the arrestee complained, see, e.g., Burchett, 310 F.3d at 945, or because the arrestee failed to complain at all, see, e.g., Lyons v. City of Xenia, 417 F.3d 565, 576 (6th Cir. 2005).[viii]
• To the extent we have addressed cases in which an arrestee disobeys an officer, we have noted that in excessive force cases the fact of noncompliance amounts to a "critical difference" and accordingly condoned greater use of force than we would have had the arrestee been compliant. See Marvin v. City of Taylor, 509 F.3d 234, 248 (6th Cir. 2007) ("[W]e find that the Defendants did not violate [Plaintiff's] Fourth Amendment rights . . . because the Defendants acted in an objectively reasonable manner in light of [Plaintiff's] heavily intoxicated state, abusive language, and his resistance to arrest.")[ix]
The court, based on testimonial evidence and evidence from radio and CAD reports was able to determine that Getz was in handcuffs for a very short period of time until they were removed to allow him to use an inhaler. Based on this, the court stated
The district court was correct in stating that "[t]he relatively short time frame in which Mr. Getz was in handcuffs, coupled with the officer's prompt action in removing them upon a subsequent request after he had subdued Mr. Getz, at worst, falls into a category 'in which qualified immunity operates to shield officers from discretionary, on-the-spot judgments.'" Getz, 2015 WL 1530643, at *12 (quoting Fettes, 375 F. App'x at 534). The parties agree that Getz was in handcuffs for about four-and-a-half minutes before Spees arrived. Trisha and Mrs. Getz, Plaintiff's primary witnesses, both agree that the handcuffs were removed very shortly after Spees' arrival. Further, it is undisputed that Getz attempted to flee and resisted arrest. He continued to resist and use abusive language towards Swoap for at least some period of time after he was placed in handcuffs.[x]
As such, the court held that a “reasonably competent officer could conclude that Swoap’s actions were lawful.” As such, he did not violate the Fourth Amendment.
Therefore, the court of appeals upheld the decision of the district court in favor of Deputy Swoap.
[i] No. 15-3514 (6th Cir. Decided August 16, 2016)
[ii] Id. at 1
[iii] Id. at 2-6
[iv] Id. at 7-8
[v] Id. at 9
[vi] Id. at 9-10
[vii] Id. at 10
[ix] Id. at 11
[x] Id. at 12
[xi] Id. at 11