Fourth Amendment Jurisprudence in the Context of Excessive Force: Why the Supreme Court Needs to Remove the Handcuffs from the Federal Circuit Courts

Justin Cohen

The Fourth Amendment provides “[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated . . . .”[1] Inherent in the Fourth Amendment’s proscription against unreasonable searches and seizures is a prohibition on the government’s use of excessive force to effectuate an arrest,[2] and 42 U.S.C. § 1983 supplies a conduit for arrestees to bring excessive force claims against the government in federal court.[3] While seemingly uncomplicated, excessive force claims throughout the federal district courts have produced a confusing array of Fourth Amendment jurisprudence.[4] In Fisher v. City of Las Cruces,[5] the Tenth Circuit held that a reasonable jury could have determined that two police officers of Las Cruces, New Mexico, used excessive force in handcuffing the petitioner after he accidentally shot himself twice. Accordingly, the court reversed and remanded his § 1983 action against the city and police officers to the district court.[6]

On the day in question, the petitioner, Robert Fisher, ingested “at least two doses of Xanax,”[7] and nearly a pint of vodka before passing out in his yard. Upon awakening, Fisher, hallucinating that a large animal was attacking him, ran inside to get a handgun. After returning outside, Fisher accidentally shot himself in the stomach and the bicep, and his wife called 911 while retrieving the gun from outside and placing it in the kitchen. The 911 operator dispatched two officers from the police department and instructed them, based on the conversation with Fisher’s wife, “either that an individual had shot himself, or that an individual was suicidal and shots had been fired.”[8]

Upon arriving, the police officers frisked Fisher, and he showed them his wounds. One of the officers then secured the weapon inside the house as the other officer began to apply first aid by pressing Fisher’s shirt against his wounds.[9] After the officer who retrieved the gun returned outside, he ordered Fisher to lie on his stomach and place his arms over his head. Due to his injuries, Fisher protested and did not lie down, but the officer who had administered first aid placed her knee into Fisher’s back “in order to leverage his arms behind his body” and handcuffed him.[10]

In the majority opinion, the Fisher court noted that the officers were fully aware of Fisher’s injuries and that Fisher begged not to be handcuffed behind his back.[11] Moreover, Fisher’s wounds notwithstanding, the officers’ handling of Fisher led him to believe that his “bicep was tearing” due to the “excruciating pain” and that the officers’ actions “exacerbated” his wounds.[12] From this evidence, the court distinguished Fisher’s claims from de minimis injuries resulting from handcuffing, which include “fleeting discomfort” or “red marks or swelling that disappear in a few hours or days,”[13] and concluded that Fisher’s injuries could be interpreted as actual.[14]

The court also observed that the district court did not err in finding that the officers were not unreasonable in handcuffing Fisher but that the more particular issue was whether the manner in which Fisher was handcuffed, that is, “forcibly behind his back while he suffered from gun shot [sic] wounds, constituted excessive force.”[15] The court opined that a petitioner can recover damages on an excessive force claim if “the officers used greater force than would have been reasonably necessary to effect a lawful seizure” and if the petitioner suffered actual physical or emotional injury that is not “de minimis.”[16]

But for the federal courts approaching excessive force claims using three different standards based on a petitioners’ degree of injury,[17] this case would not be a major constitutional issue.  However, the First, Second, Third, Seventh, Ninth, and D.C. Circuits maintain a lower injury threshold that petitioners must overcome than the Fourth, Fifth, Eighth, and Eleventh Circuits, while the Sixth and Tenth Circuits have yet a different standard depending on whether the excessive force claim pertains to handcuffing.[18] The minimum threshold is determined by whether the petitioner’s injuries leave “no discernable bodily marks or, at most, light bruises, scrapes, or sprains that can heal without medical attention,” i.e., de minimis,[19] or actual, which are “physical injur[ies] manifested by visible cuts, bruises, abrasions or scars.”[20] The Sixth and Tenth Circuits hold that, like the majority of circuits, petitioners need not show actual injury to sustain an excessive force claim;[21] however, petitioners in these jurisdictions must show “actual, non-de minimis physical, emotional, or dignitary injury” with respect to either the manner or course of handcuffing or the tightness or discomfort of the handcuffs themselves.[22]

Police officers operate in dangerous environments, and when responding to the scene of a crime or disturbance, officers are forced to make quick determinations about the situation. Accordingly, the Supreme Court has held that “‘[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,’ violates the Fourth Amendment,”[23] which is why courts generally weigh doubts in favor of the police.[24] However, this presumption has not prevented individuals from bringing claims against officers and their departments, and § 1983 excessive force actions are among “the most common civil rights claims” on federal judicial dockets.[25] Therefore, in balancing both the government’s interest in maintaining safety as well as a citizen’s right to be free from excessive force during an arrest, the Tenth Circuit’s approach to § 1983 claims is the most reasonable, and the Supreme Court should grant certiorari in a relevant case to adopt the Tenth Circuit’s rule, which will allow the federal circuits to uniformly approach these claims.

While likely not intending to create an actual injury threshold in the context of excessive force claims, the Supreme Court has upheld police officers’ right to use handcuffs liberally in order to maintain control and protect themselves in uncertain, potentially dangerous situations.[26] Correspondingly, police officers have broad discretion in deciding whether to handcuff a suspect. With respect to arrests, one multi-jurisdictional study showed that, out of 7,512 adult arrests, officers used handcuffs 82% of the time.[27] Additionally, more than 80% of arrests did not involve the use of force by police; however, when analyzing officers’ use of force to effectuate an arrest, the authors of the study explicitly excluded handcuffing from their definition of physical force, presumably because it is “considered a standard police practice.”[28] Therefore, without a minimum injury threshold for petitioners bringing excessive force claims in handcuffing situations, the fact that police use these metal restraints so often could open the floodgates of § 1983 litigation.

Requiring actual injuries for excessive force situations other than handcuffing frustrates public policy by permitting officers to use force that exceeds the amount necessary to effectuate an arrest so long as the force does not leave lasting physical or emotional injuries.[29] Fortunately, empirical evidence shows that, despite high-profile incidents, police officers rarely use physical force,[30] and that, during a 12-month period, 45 million Americans have “face-to-face” interactions with police and that only 1% of police dispatches employ the use or threat of force.[31] Thus, because the use of force in situations other than handcuffing is relatively rare, policy should dictate that, when police officers do use force, they should be held to a high standard in justifying such force and any accompanying injury.

Most arrestees would likely testify that handcuffs are not pleasant and can be quite uncomfortable, and even painful, depending on the manner of handcuffing, the tightness of the cuffs, the arrestee’s flexibility and size, and whether the arrestee is handcuffed in front or behind of his or her body.[32] Therefore, as in the Tenth Circuit, requiring more than a de minimis injury in handcuffing cases eliminates “weak or frivolous claims,”[33] where the only injuries are “red marks or swelling that disappear in a few hours or days.”[34] However, outside the context of handcuffing, the Tenth Circuit’s decision to allow petitioners to bring claims absent actual injury recognizes the strong public policy that “police officers do not have the right to shove, push, or otherwise assault innocent citizens without any provocation whatsoever.”[35]

Since handcuffing is often justified due to the danger inherently present in police officers’ jobs, the Supreme Court as well as the Tenth and Sixth Circuits recognize that the routine use of handcuffing protects officers, suspects, and bystanders in uncertain situations while still prohibiting officers from using qualified immunity as an impenetrable shield in excessive force cases other than handcuffing.[36] Additionally, permitting plaintiffs with de minimis injuries to satisfy cognizable constitutional claims would frustrate public policy by entitling arrestees with any minor or fleeting discomfort, presumably common since handcuffs are metal and are designed to restrain individuals, to bring “self-serving [claims] asserting pain alone, without corroborating facts,” thereby wasting valuable judicial resources.[37]


[1] U.S. Const. amend. IV.

[2] See Graham v. Connor, 490 U.S. 386, 394 (1989) (“[Excessive force claims are] most properly characterized as one invoking the protections of the Fourth Amendment.).

[3] Id. at 388. § 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 the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .” 42 U.S.C. § 1983 (2006).

[4] See Bryan N. Georgiady, An Excessively Painful Encounter: The Reasonableness of Pain and De Minimis Injuries for Fourth Amendment Excessive Force Claims, 59 Syracuse L. Rev. 123, 137–38 (2008) (discussing the differing hurdles that plaintiffs must face to sustain a claim of excessive force).

[5] 584 F.3d 888 (10th Cir. 2009).

[6] Id. at 902. 

[7] Id. at 892.

[8] Id.

[9] Id.

[10] Id.

[11] Id. at 899–900

[12] Id. at 900.

[13] Id. (citing Cortez v. McCauley, 478 F.3d 1108, 1129 (10th Cir. 2007) (en banc)).

[14] Id. n.8 (comparing a triable claim in which an arrestee fainted from pain after “it took the officer ten minutes to loosen the handcuffs” with a frivolous claim in which the arrestee did not express to the police officer that the handcuffs were to tight nor sought medical treatment as a result of the handcuffs).

[15] Id. at 893.

[16] Id. at 894–95 (citing Cortez, 478 F.3d at 1129 n.25).

[17] See Georgiady, supra note 4, at 137–38.

[18] See id. at nn.100–02.

[19] Id. at 136. Black’s Law Dictionary defines de minimis as “[t]rifling; minimal . . . so insignificant that a court may overlook it in deciding an issue or case.” Black’s Law Dictionary (9th ed. 2009).

[20] Cortez, 478 F.3d at 1129 n.24.

[21] Georgiady, supra note 4, at 138-139.

[22] Fisher, 584 F.3d at 899.

[23] Graham v. Connor, 490 U.S. 386, 396 (1989) (internal citations omitted).

[24] See Diana Hassel, Excessive Reasonableness, 43 Ind. L. Rev. 117, 122 (2009).

[25] Id. at 121.

[26] See Muehler v. Mena, 544 U.S. 93, 100 (2005).

[27] U.S. Department of Justice, Office of Justice Programs, NCJ 176330, Use of Force by Police: Overview of National and Local Data, at x (Oct. 1999) [hereinafter DOJ], available at

[28] Id. at x.

[29] See Georgiady, supra note 4, at 158 (“Actual injury requirements are at odds with the Fourth Amendment.”).

[30] DOJ, supra note 27, at 3.

[31] Id. Notably, this number rises from approximately 500,000 to 1.2 million if handcuffing is included in the definition of force. Id.

[32] See Fisher v. City of Las Cruces, 584 F.3d 888, 899-900 (10th Cir. 2009).

[33] Id. at 898.

[34] Id. at 900 (citing Cortez v. McCauley, 478 F.3d 1108, 1129 (10th Cir. 2007) (en banc)).

[35] Clash v. Beatty, 77 F.3d 1045, 1048 (7th Cir. 1996).

[36] See Muehler v. Mena, 544 U.S. 93, 100 (2005); see Fisher, 584 F.3d at 897–98.

[37] See Fisher, 584 F.3d at 900.