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Provable Injury Not Essential to Claim Excessive Force Used in Handcuffing

Provable Injury Not Essential to Claim Excessive Force Used in Handcuffing

By Charles Toutant

New Jersey Law Journal

December 7, 2010

Physical injury from handcuffing is not a prerequisite to a finding of use of excessive force by police, a federal judge in Camden ruled Tuesday.

In a §1983 case where a jury found constitutional violations but awarded only $1 in damages, District Judge Joseph Irenas rejected a township’s motion to strike the finding of liability, finding that physical injury is only one indicia of the amount of force applied.

Irenas’ published ruling, in Velius v. Township of Hamilton, 09-cv-00053, arose from the arrest of Ivan Velius on drunken driving charges after a minor motor vehicle accident. He sued officers of the Hamilton Township Police Department in Atlantic County, claiming they handcuffed him too tightly and ignored his pleas to loosen the cuffs. He says he suffered “excruciating pain” for a half-hour.

At trial of his §1983 suit, he presented medical evidence to suggest he suffered nerve damage from the tight cuffs. A jury concluded on Oct. 12 that officers Francis Smyth and Kevin Zippilli used excessive force while arresting Velius and that they failed to intervene to stop the use of excessive force. But the jurors awarded only nominal damages, finding he had not proven injury by a preponderance of the evidence.

A. Michael Barker, the attorney for Hamilton Township and the officers, moved to alter the judgment under Fed. R. Civ. P. 59(e), asserting that there could be no Fourth Amendment violation without an injury. He argued that the jury’s finding of no injury was tantamount to new evidence, which requires the court to alter its judgment.

Irenas said that because the defendants’ argument was premised on the jury’s finding of no injury, they could not have raised the issue earlier, and the issue was ripe for review.

But he rejected the motion, pointing to the Third Circuit’s model jury instructions for excessive force, which instruct jurors to consider “whether the physical force applied was of such an extent as to lead to unnecessary injury.”

Citing the jury instructions, Irenas wrote that an evaluation of whether the amount of force used was reasonable should consider :

the severity of, and the risks posed by, plaintiff’s conduct;

whether plaintiff posed an immediate threat to the safety of the defendants or others;

the possibility that plaintiff was armed;

whether plaintiff was actively resisting arrest or attempting to evade arrest by flight;

the duration of each defendant’s action;

the number of persons with whom Defendants had to contend; and

whether the physical force applied was of such an extent as to lead to unnecessary injury.

Irenas also cited a comment to the jury instructions, which said “physical injury is relevant but it is not a prerequisite of an excessive force claim.”

Finally, he cited Sharrar v. Felsing, 128 F. 3d 810 (1997), another excessive force suit naming a New Jersey police department. There, the Third U.S. Court of Appeals said that “we do not agree that the absence of physical injury necessarily signifies that the force has not been excessive, although the fact that the physical force applied was of such an extent as to lead to injury is indeed a relevant factor to be considered as part of the totality.”

Irenas also rejected the assertion by Barker, the township’s attorney, that the officers were entitled to qualified immunity. Barker claimed that a reasonable officer, having placed a subject in handcuffs in a manner that caused no injury, pursuant to a reasonable arrest, could not have known that his actions violated the Fourth Amendment. Irenas said the Sharrar ruling put officers on notice that the “presence or absence of a physical injury is but one relevant factor to consider in the Fourth Amendment excessive force analysis.”

Irenas found that the township’s lawyer read too broadly the Third Circuit’s ruling in Gilles v. Davis, 427 F. 3d 197 (2005), which upheld dismissal of a suit by a man who raised a claim of excessive force based on overly tight handcuffs. The only evidence supporting the subject’s excessive force claim was his own testimony that he told officers he was in pain. But a videotape of the arrest did not show him to be in discomfort.

Irenas said that Gilles did not contradict Sharrar‘s holding but rather can be read as “an application of the principle that the presence or absence of physical injury is probative evidence of whether the force used was excessive.”

However, Gilles does not stand for the proposition that the absence of physical injury means that no excessive force was used, Irenas said. Rather, it must be proved by other evidence.

Barker, of Barker, Scott & Gelfand in Linwood, says the township did not interpret the Gilles case as creating a rule of law requiring injury to demonstrate excess force. Rather, its position was that its officers did not commit a constitutional violation under the circumstances of the case. Velius left the scene of an accident, was validly arrested, was taken into custody without injury, registered a .22 blood-alcohol concentration, and was convicted of drunken driving. “We argued that none of the officers’ conduct rose to the level of a constitutional violation, or even if some court were to say it did, they were still entitled to qualified immunity,” he says.

Barker says it’s premature to discuss any appeal because the parties are still before Irenas on a fee application by Velius’ counsel. The town takes the position that the plaintiff is not entitled to fees because he is not a prevailing party, Barker adds.

The lawyer for Velius, Thomas Bruno of Abramson & Denenberg in Philadelphia, did not return calls.

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