PROVING INJURY AND RECOVERING OF POLICE NEGLIGENT HANDCUFF INJURIES
By: Glenn C. McGovern, Attorney at Law
MY PREVIOUS EXPERIENCE WITH LITIGATING HANDCUFF CASES
I filed the first major handcuffing suit in Louisiana involving the improper police procedures, approximately 1986. I had not handled any previous handcuffing cases, but had handled several excessive use of force type of police cases. Then, I was contacted after an off-duty officer working a paid detail for a major storeowner arrested a prominent orthopedic surgeon for parking in a shopping center. The doctor suffered median nerve damage in both writs that left him unemployed for 5 years. That case and the result, has been chronicled in many police training manuals. Since that case, many police administrators, trainers and attorneys have focused on handcuffing as a possible source of police liability. Some cases do make a difference. Most departments have changed their training due to that widely reported case.
The lawsuits of any handcuff case, usually focuses on the officer's failure to double-lock the handcuffs after handcuffing the suspect, and failure to give after care, the failure to monitor the condition of the suspect, resulting in damage to the suspect's wrist.
At the time, that I handled that case, my chances of success were viewed with great skepticism to say the least. The reason being two reasons: 1) There was hardly any information in the medical literature that handcuffing can cause ulnar and median nerve injury; and 2) There was little information, put out in training manuals to officer/trainees that handcuffing could cause medial and ulnar nerve injuries.
In fact, there was a false belief among state police officers that handcuffing could not cause injuries. Federal trainers had tough double locking and how it could prevent nerve injuries for years, but no all local enforcement agencies gave such training. Mistruths even persisted in the medical community at that time that handcuffs could not produce permanent injuries. Before 1984 in medical literature there was only some speculation that possibly some connection with nerve injury from handcuffs, but it probably was with intoxicated suspect arrested and handcuffed. Today, if you are pursuing a handcuff injury, you have the benefit of a lot more medical, police training articles and cases at your disposal. Handcuffs can and do cause nerve injury.
There are medical several articles now verify that handcuffing can cause nerve injuries.
MEDICAL ARTICLES WHICH HIGHLIGHTS HANDCUFF CASES
A article on plastic ties handcuffs appeared in the Journal of Clinical Forensic Medicine, an article by Charlotte Granville-Chapman, Ellie Smith and Neil Mohoney, Medical Foundation for the Care of Victims of Torture, 111 Isledon Rd., London N7 7JW, UK. The article mentioned fourteen cases are reported after failed removal attempts, where there were allegations that excessive force ha been employed. During demonstrations handcuffs had gone intentionally, overly tight, then the wrists would swell up and to make them impossible to remove, without cutting them off. (In fact, this happened at a police conference demonstration in New Orleans. The maintenance man had to be called to cut off a set of handcuffs used in a demonstration at a police training convention.) In any event, the collective analysis the fourteen cases revealing the misuse of handcuffs in 11 of the cases, which resulted in nerve injury in 4 of the cases, as well as inappropriate and unsafe methods of force, such as blow to the heads and compression of the trunk and/or neck. It is important to note, that the article stated that these abuses occurred inside empty security vehicles out of the sites of witnesses.
One interesting article I did have the benefit of was entitled, Handcuffs and Cheiralgia Paresthetica by E.W. Massey, Neurology, 1978, 1312-1313. This is one of the first articles to find that there was some connection between handcuff and compression injuries, and numbness in the hands.
Another article, entitled Handcuff Neuropathy in U.S. Prisons of War from Operation Desert Storm, by A. A. Cook published in Mil Med 1993; 158: 253 [Medline] documents handcuffing injuries among prisoners of war due to excessive handcuff use.
Another excellent article is Handcuff Neuropathy: 2 Unusual Cases, published by R.A. Levin, Felsenthal, G., Arch Phys Med Rehab 1984; 65: 41-43 [Medline] This article documents a nerve injury in median and ulnar nerves in two cases, related to excessive compression due to handcuffing.
Another article on injuries caused by handcuffs was in BMJ written by P.W. Richmond, Fligelstone, J. Lewis, published in BMJ 1988; 297: 111-112.
There is another article titled, Complaints of Pain After Use of Handcuffs Should Not Be Dismissed, regarding the use of Kwik-cuffs, which mechanism of cuffs allows the cuffs to spring shut on a ratchet. The article was published in BMJ, in 1999; 318:55, by F.S. Haddad, Senior Registrar, N.J. Goddard, Consultant, Dept. of Orthopaedics, Royal Free Hospital, London NW3 2QG. The article states that there is a problem in that police officers are not instructed to remove or adjust handcuffs until a safe, controlled environment is reached. The article points out that this may mean the detainee complains of overly tight handcuffs only after a considerable time. At that time the damage is already done. The article recommends a greater awareness by the officers for the possibility of handcuff related lesions may lead to an earlier reappraisal once events are proceeding in a controlled manner. The article points out that complaints of pain, sensory symptoms or weakness after the use of handcuffs should not be dismissed. The article correctly points out that while neuropraxia of the radial nerve may not lead to motor dysfunction, it can nonetheless be persistent and severe. The article points out also, that direct damage to the ulnar or median nerve and fractures can be extremely debilitating.
Another article, Bilateral Nerve Injuries Caused by Handcuffs, by T.S. Burge, is another article from U.K. regarding peripheral nerve injuries in the U.K. and the United States. This case involved a 34-year-old man, who was handcuffed by the police. The cuffs remained in place for approximately two hours, and then he presented, approximately six hours after there removal, on examination, the hands were swollen with obvious imprints encircling the wrists. This is typical when excessive compression injuries occur due to handcuffs. X-Rays revealed no bone injury. On examination, the next day, he had partial sensory loss in the ulnar aspect of the dorsum of the right hand, extending from the wrist to the distal interphalangeal joints of the ulnar fingers, and on the left hand there was a similar area on the dorsal aspect of the proximal thumb and first web. After eight weeks later, the picture presented was unchanged. The article points out that the median and ulnar nerves are all vulnerable to compression of the wrists. In this case it was a radial nerve injury on the left and an ulnar nerve lesion on the right. The author points out that he had personal communication with several other colleagues would suggest that injuries of this type are not uncommon. More formal studies are needed with the police informed of the results.
Another interesting article on handcuff and nerve injuries is found in Apley's System of Orthopaedics and Fractures, 6th Edition, Butterworth and Co., 1982; 129 by Apley, A.G., Solomon L.
TYPES OF HANDCUFFS THAT CAUSE HANDCUFF INJURY
Any type of handcuff may cause nerve injury if not used properly. Let's talk about the mechanism of the handcuff injury. There are several different types of handcuffs, which can relate to several different types of problems.
There have been many documented cases of permanent injury due to, what looks like a large zip tie or plastic flexible handcuff that is used in mass arrest situations. The problem occurs in that the edges are sharp, and can cut into the wrist pressing the blood supply to the nerves, which leads to nerve damage. Once the nerves are damaged, due to lack of blood supply to the nerve, the nerve tries to reconduct. When it does try to reconduct, it branches out and regenerates in a fashion that looks sort of like an ocean in a spaghetti factory. Sometimes the nerves regenerate, and reconnect, and there is no problem, and sometimes they regenerate and reconnect and there is a problem. Sometimes the muscle across the wrist, which can also, be responsible for carpal tunnel, is injured and swollen, and with surgery reducing the pressure on the wrist from this muscle, can release the pressure on the nerves and get good results with surgery. Sometimes the surgery is not successful, and when the surgery is done, it creates more score tissue, which could put impingement on nerves in other areas, resulting in permanent disability.
The plastic type (or any type) of handcuffs are likely to cause injury due to 1) Not monitoring the tightness of the handcuffs; 2) The ability of the handcuffs to tighten up even more if no double lock mechanism is in place or used; 3) The tendency of officers to react to complaints of handcuff abuse by making them tighter and similarly punish the victim; and 4) The misuse of the flexible handcuffs, by not only handcuffing the arm, but handcuffing the arms to the legs, or hog-tying the arrestee or connecting him to inanimate objects, which leads to tightening and more compression. This procedure of hog-tying the arrestee has been banned by most police departments for good reason. This could result in fluid building up and going into the lungs, when the person becomes excited and can't expel the fluid. It will result in them literally drowning in their own fluids.
Smith and Wesson have been manufacturing handcuffs for many years, and the Model 100 is probably one of the most popular models. It is not the strongest handcuff around, but it has many features, at low cost, which it makes it popular among police departments. The Smith and Wesson instruction manuals that are attached hereto, and I call reference to later on in this program. The Smith-Wesson Model 100 Handcuff is connected between two handcuffs by a chain. It has good and bad points. 1) The chain can actually, and has been known to have been broken by large individuals, or could be wedged around an inanimate object to break the handcuff and release to the two hands. On the other hand the chain between the handcuffs acts somewhat to prevent injuries from happening when the rigid type of handcuff is used. The handcuff has a double locking mechanism activated by a key, and there is a small head on the end of the key to double lock the handcuff. This prevents the ratcheting mechanism from locking up. If the double locking is not used, then it is possible to "jimmy" the ratchet end and release the handcuff. A single wire from a street sweeper brushhead is easily concealed and does the job easily by tripping the lock mechanism upward if the double lock is not used and set properly.
Another type of handcuff, which is manufactured by Peerless Handcuff Company, is basically like a Smith & Wesson Model 100, however some of the models had problems with the edge not being beveled and cutting into the person. There is also a model made by Peerless, which is a hinge handcuff Model 801, it restricts hand and arm movements. It is all steel construction and folds flat for easy storage. The fixed hinge type of handcuffs can also be used or misused depending on your view, by grabbing the hinge, and twisting them which results in excruciating pain to the person, and through this leverage method, can produce handcuff injury. On the other hand, the hinge handcuff has more strength than the chain type Smith & Wesson Model 100 or the other Peerless handcuffs that use the chain. Therefore, it provides more safety to the officer from the suspect breaking the handcuffs apart. This can be a problem will large individuals.
Hiatt handcuffs make a line of handcuffs, including standard chain style handcuffs, and offer a heavy duty handcuff model, Big Brutus, which is 25% larger than other handcuffs. It can be used on larger individuals or ankles on any individuals.
Handcuffs in use on smaller persons that do not necessarily fit, can cause a problem. I have seen wrists broken by handcuffs, by individuals trying to ratchet them all the way down on women, particularly women with small wrists. The problem is that the handcuff is not designed to work on the smaller wrists and the excess of compression is used against the flesh in order to stabilize the cuff from coming off. Then the wrist bones are broken. Hiatt also manufactures large hinged style handcuffs, which has excessive strength, and provides greater subject control, and do feel more comfortable in the officers hands and they are more compact.
A recent article was published entitled "Los Angeles Sheriff Department recalls handcuffs." The department recall Hiatt-Thompson handcuffs because they were hurting suspects wrists. The engineering of the sharp edges of the handcuffs were inadvertently hurting suspects. The Hiatt-Thompson handcuffs used in the recall were returned by the Los Angeles Sheriff's Office because they had sharp edges inside. The Peerless had beveled edges and these did not cause injury.
HOG TYING AND ASPHYXIATION REGARDING HANDCUFF INJURIES
It's been long-held for several years, hog tying with restraints can lead to positional asphyxiation and liability for the police department. In Cruz v. City of Lararmie, 99-8045, 99-8049, 99-8050, 239 F.3d 1183 (10th Cir. 2001), part of the the case was as follows:
"Officers may not apply this technique when a person's diminished capacity is apparent. The diminished capacity might result from severe intoxication, the influence of controlled substances, a discernible mental condition or any other condition, apparent to the officers at the time which would make the application of a hog-tie restraint likely to result in any significant risk to the individual's health or well-being. A review of the known dangers of the hog-tie restrain supports this position."
In Nelson v. County of Los Angeles, 113 Cal App 4th 783 (2003), in a Court of Appeal noted:
"The parents of an adult male who died of asphyxia while restrained by deputy sheriffs filed a wrongful death suit against the county. The adult male stood in the middle of a busy intersection and fired a loaded gun into the air and at passing motorists. The police responded by arresting the adult male and placed him in the back of the police car. The adult male started thrashing about, and the deputies pulled him out of the car, laid the still handcuffed adult male facedown on the round and executed a total appendage restraint procedure (TARP). By the time the deputies finished, the adult male was unconscious. The paramedics who came to the scene found he was no longer breathing and were unable to revive him."
A jury found the county negligent, that the county's negligence was the cause of the deceased's death, and that 35 percent of the negligence was attributable to the deceased's conduct. The jury awarded $2 million to the parents.
The Court of Appeals remanded the matter to the trial court for a new trial on the damage issues, and affirmed the judgment in all other respects.
In another fatal death case, settlement was reached in hog-tying death, in an article in the Associated Press, which stated:
"OGDEN, UTAH. The Weber County Sheriff's Office and the family of Glen Lutz have settled for $240,000 in a lawsuit over Lutz's hog-tying death. He was put on his stomach with his hands handcuffed behind his back, and tethered to his shackled legs. Lutz briefly stopped breathing and lapsed into a coma. Deputies called the paramedics after Lutz's breathing became labored but did not fully untie him. He died a month later without regaining consciousness.
A neighbor videotaped the incident. Deputies were seen yelling obscenities at Lutz. They settled the case for $240,000 for Lutz's hog-tying death. He was put on his stomach with his hands handcuffed behind his back, and tethered to his shackled legs."
In short, hog-tying should be part of a ban by policy and procedures of any police department.
There is an alternative to hog-tying and there is a safe-wrap restraint, or called the "Wrap", which is a mobilization system. The manufacturers claim it greatly reduces injuries and respiration and fatigue while arrestees are in custody and death while controlling a violent subject and allowing medical treatment by being restrained. It is manufactured by Safe Restraints, Inc., P.O. Box 680512, Park City, Utah 84068.
Most handcuffing incidents are due to: 1.) the failure to double lock the handcuffs, 2). 3.) the inadequate training of the officer, 4.) the failure to respond to complaints, 5. the failure to monitor the subject after the handcuffs are used, and 6. also the misuse of handcuffs is a permanent restraint for an extended period of time, resulting in damage and compression of the wrist, or even loss of the hands and limbs.
Remember, when Harry Houdini, the great escape artist before 1930's used to be handcuffed and shackled with multiple handcuffs placed in the water, and escape miraculously? How did he do it? Before 1930 we did not have double locking of handcuffs. Harry Houdini would regurgitate a metal rod object in which he would pry between the handcuff and the locking teeth of the ratchet, allowing him to be released from the handcuffs. If you do not double-lock the handcuffs a suspect can do the same and release the handcuff ratchet mechanism.
Therefore, it is imperative that officers double lock for two reasons: 1) to protect themselves, the officer, from a lock being released and jimmied; and 2) for the protection of the suspect so that the handcuffs cannot ratchet down tighter than intended when the suspect is placed behind his back, when he sits down in the vehicle or inadvertently bumps any objects, or the handcuffs are grabbed by a third person or another officer.
Thousands of people are handcuffed each day without injury. If injury occurs, something was probably done wrong. Often the suspect is blamed as a defense. This can be defeated as a defense easily with some good technique.
Section 1983 issues and handcuffing.
In my opinion, more likely than not, you are better off filing suit in state court. One of the interesting issues is to whether or not handcuffing too tight with any injury is a viable Section 1983 Civil Rights claim. Excessive force claims are evaluated without regard to the lawfulness of the underlying arrest. Handcuffing too tight does not give rise to liability without proof of injury according to the court in Gray v. Horton, 2008 U.S. Dist. LEXIS 4194 (S.D. La. January 18, 2008).
The Federal Fifth Circuit Court of Appeal has failed find excessive force when a plaintiff alleged that an officer placed handcuffs on her too tightly, thereby causing her wrists to swell. (See Glenn v. City of Tyler, 242 F.3d 307 (5th Cir. 2001) In Glenn, the court held in the Fifth Circuit that "handcuffing too tightly, without more, does not amount to excessive force," Id. At 314. Similarly, Gray's allegations that Horton verbally accosted and pointed his weapon at him are insufficient to rise to the level of a constitutional injury. See Bender v. Brumley, 1 F.3d 271, 274 n.4 (5th Cir. 1993) As per McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983) As a general rule, threatening language and accompanying gestures, even if true, do not amount to a constitutional violation.
In Gray's decision the problem was there was not enough sufficient proof of injury. However, unless there is proof there is severe injury, that it is intentional, (i.e. that the person was tortured with handcuffs), it may not rise to the level of a Section1983 claim. You may be better off filing suit in state court, and alleging strict liability for an instrument danger for a dangerous instrumentality, under La. C.C. Art. 2315 and La. C.C. Art. 2317.
There are several cases regarding handcuff injuries, which are as follows:
- Graham v. Connor, 490 U.S. 386 (1989)
- Kopec v. Tate, 361 F.3d 772 (3rd Cir. 772, 2004)
- Aceto v. Kachajian, 240 F.Supp.2d 121 (Dist. Mass. 2003)
- Palmer v. Goudchaux/Maison Blanche, Inc, 588 So. 2d. 737, ( La. App 5th Cir. 1992) Improper procedures in a false shoplifting arrest of a doctor.
- Goings III v. State of Louisiana, Through the Department of Public Safety and Corrections, 648 So.2d 884, (La. S.C. 1995)-torture, excessive force compression case.
- Pheneger v. City of Lima, 2007 WL 4561475 (N.D. Ohio)-interesting analysis on Daubert motions.
HANCUFFING AND RISK CONTROL
There are several risks that need risk control issues that police agencies should be aware of in the training of its officers regarding handcuffs:
- Tightness of the handcuffs. The courts critically note, such as in Kopec v. Tate, whether the offense was serious or not, in light of the injury. In Kopec, there was an excessive force handcuffing claim. The court applied the three-part test, and they noticed 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 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.
- Person with pre-existing injury. In Aceto v. Kachajian, a small woman was arrested on an outstanding warrant for failure to pay a fine on a speeding violation. The warrant was 13 years old, Aceto informed the 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 her in the front and took her to their station for booking. After being in the police station for approximately 45 minutes, and began transporting Aceto to court. Aceto informed the transporting officer of her pre-existing injury and provided the officer of the two names of the doctors who they could call to verify the injury. Kachajian indicated he would check her documentation, and returned and ordered to place her hands behind her back to be handcuffed. As they were doing so, something popped. Aceto was later diagnosed with a herniated disk. The court analyzed whether the handcuffing a non-threatening, non-flight risk and cooperative arrestee who has been arrested for a minor crime, and who has informed the police of a pre-existing injury may constitute excessive force. The court cited numerous court decisions from jurisdictions holding that where police are aware of a pre-existing injury to an arrestee, the injury must be taken into account before requiring the arrestee to be handcuffed behind his or her back. The officer was refused qualified immunity. The court noted numerous cases dealing with police handcuffing persons with pre-existing injuries or disabilities where handcuffing would acerbate the pre-existing injury or cause a new injury.
- Handcuffing for Officer Safety. It is important for the officer to articulate facts and circumstances that would lead a reasonable officer to believe that there is a reasonable safety concern. Double locking handcuffs is especially important for officer's safety. Without the double locking, the officer may be injured due to the release of the handcuffs, or jimmying of the handcuffs by the person arrested. Also, the double locking protects the person arrested, in that, when they are put in the police car with the handcuffs behind their back, the handcuffs will certainly tighten.
- Avoiding/controlling risks. The risk of liability with respect to proper use of handcuffs can be avoided, by sound policy and training. Some factors to consider when reviewing department policy and officer training include:
- Do the officers have some discretion when dealing with vulnerable classes such as the elderly, injured or disabled, or emotionally disturbed persons?
- Does policy and training dictate double-locking and checking for tightness?
- Does policy and training dictate an immediate response to a suspect's complaints with respect to tightness of handcuffs?
- Does policy and training require officers to articulate the need for handcuffing in "officer safety" situations or are all contacts automatically considered "officer safety" issues?
- Is "after care" taught to officers and that suspects detained are their wards and they are responsible for their medical care and follow up exam and treatment if necessary?
- Is the "pinky test" taught to check tightness of the handcuffs.
Officers should be granted some discretion in handcuffing, especially 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 the officers have assisted elderly arrestees in placing they 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 circumstances 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.
Monitoring and after-care taught to officers will help avoid injuries.
HANDCUFFING PROCEDURE BASICS-
- Placement of handcuffs
- Ulnar notch
- Double locking
- Pinky test-checking for tightness or over tightness
- Dealing with complaints
- After care
- Parts of a hancuff
- Manufacturer manuals and warnings
- Training manuals of the department
PROVING MEDICAL CAUSATION IN HANCUFF INJURY CASES
- A prior ENG is of invaluable assistance.
- An immediate ENG is necessary and invaluable.
- Photos of wrist discoloration and abrasions useful.
- Time or duration important.
- Amount of pressure or compression important.
- High compression vs. duration interplay
- X-rays usually of little benefit.
- MRI's usually of little benefit
- A good neurologist is needed.
- Ruling out other injuries.
- Carpal tunnel and handcuff injury-both compression in different forms
- Obese, diabetic, pregnant and carpal tunnel
- 6-18 months to monitor healing or lack thereof
- Nerve conduction damage-mechanism of injury and reconduction.
- Myth-handcuffs cannot cause injury with proper placement due to ulnar bone.
- Jail records of complaints.
- Police report records of complaints
- Emergency room medical records and photos
- Medical records from hospitals and doctors.
- Surgical reports.
- Follow up ENG 12-18 months.