[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
______________________________ JUNE 17, 2002
THOMAS K. KAHN
No. 00-13147 CLERK
_____________________________
D. C. Docket No. 98-00997 CV-ORL-19A
JOE JOHN RODRIGUEZ,
Plaintiff-Appellee,
versus
WAYNE W. FARRELL,
LOIS SZCZEPANSKI,
Defendants-Appellants.
_____________________
Appeal from the United States District Court
for the Middle District of Florida
______________________
(June 17, 2002)
PETITION FOR REHEARING AND
SUGGESTION OF REHEARING EN BANC
Before EDMONDSON, Chief Judge, RONEY, Circuit Judge, and JORDAN*,
District Judge.
________________
*Honorable Adalberto J. Jordan, U.S. District Judge for the Southern District of Florida, sitting
by designation.
EDMONDSON, Chief Judge:
On interlocutory appeal from the district court’s denial of qualified
immunity to two police officers at the summary judgment stage, we reversed.
Plaintiff, Joe John Rodriguez, has since filed a petition for rehearing and a
suggestion for rehearing en banc. Although these filings do not cause us to change
our conclusion, they do point to two portions of the record that deserve comment.
On the question of unreasonable seizure, Rodriguez points us to our
discussion of his “brief detention” at the end of footnote 15 of our original opinion.
He stresses that his transportation to the jail from which he was released (and his
transportation back from that jail after he was released) took several -- roughly 18
total -- hours. The evidence shows that, shortly after his arrest at around one
o’clock in the morning, Sgt. Farrell took Plaintiff to the local police station.
Plaintiff stayed at the station for roughly two hours before he was transported by
other officers, via one county jail were he stayed for some hours, to the jail of the
county from which the outstanding warrant came. This final jail was “hours” away
from the places of confinement to which Plaintiff was initially taken. After his
release, Plaintiff was transported from the final jail and, at his request, was dropped
off near his home between 7:00 and 8:00 pm that same day. No delay for delay’s
sake has been alleged or is supported by the evidence.
2
Assuming that the entire time of confinement was caused by Sgt. Farrell and
Officer Szczepanski,1 Plaintiff’s journey to the jail in the county that issued the
arrest warrant (even including his return from that jail), despite its extended nature,
was still a “brief detention:” a reasonable detention incident to Plaintiff’s lawful
arrest. See generally County of Riverside v. McLaughlin, 111 S. Ct. 1661, 1670
(1991) (stating that delays of less than 48 hours for judicial determinations of
probable cause are presumptively reasonable, unless detainee can prove that
determination was delayed unreasonably, and noting that “[c]ourts cannot ignore
the often unavoidable delays in transporting arrested persons from one facility to
another” when determining reasonableness).
On the issue of excessive force, Rodriguez has highlighted evidence tending
to show that after Sgt. Farrell grabbed Plaintiff’s arm and commenced the
handcuffing, Plaintiff told Sgt. Farrell, during the handcuffing, to be careful
1
This assumption is likely wrong. For background, see Lindsey v. Storey, 936 F.2d 554, 563
(11th Cir. 1991) (affirming grant of summary judgment to defendant officer on plaintiff’s
wrongful continued detention claim where officer had arguable probable cause to arrest plaintiff
and plaintiff had presented no evidence that defendant officer was responsible for inmates being
promptly arraigned).
3
because Plaintiff’s arm was injured.2 And, Rodriguez stresses that, even if the
initial handcuffing was not excessive, his continued handcuffing was excessive.
As we noted in our original opinion, a police officer need not credit
everything a suspect tells him. See Marx v. Gumbinner, 905 F.2d 1503, 1507 n.6
(11th Cir. 1990). This idea is especially true when the officer is in the process of
handcuffing a suspect. As another federal court recently noted, statements by
suspects claiming (at the time of their arrest) to have pre-existing injuries are, “no
doubt, uttered by many suspects who, if given the choice, would prefer not to be
handcuffed at all and, if they must be restrained in that manner, would prefer that
the handcuffs be in front.” Caron v. Hester, No. CIV. 00-394-M, 2001 WL
1568761, at *8 (D.N.H. Nov. 13, 2001) (granting officer, who handcuffed suspect
behind suspect’s back, qualified immunity on excessive force claim despite
officer’s alleged knowledge -- based upon suspect’s testimony that he told the
officer -- of suspect’s pre-existing injury when “[the officer] was not confronted
2
In his deposition, Plaintiff testified that he screamed in pain and screamed that his arm was
hurting when Sgt. Farrell applied the pain compliance handcuffing technique described in our
original opinion. Also in that deposition, Plaintiff unequivocally states that, even after the
handcuffing began: “I didn’t even tell him then [that my arm was specifically injured], I was just
telling him that he was hurting my arm.” In contrast, Sgt. Farrell testified in his deposition that
he simply handcuffed Plaintiff behind his back: he denies applying any pain compliance
handcuffing technique when arresting Plaintiff or that Plaintiff screamed, in pain or otherwise.
But, Sgt. Farrell does note that Plaintiff did ask him to be careful after Farrell started the
handcuffing because his (Plaintiff’s) arm was injured. We take the best set of facts for Plaintiff.
4
with any objective manifestation of [the suspect’s] claimed shoulder problem”). In
the context of this case -- a case in which Sgt. Farrell, after midnight on the side of
the road, reasonably believed that Plaintiff (who, as we discussed in our original
opinion, had no obvious signs of injury specifically to his arm) was a fugitive who
had evaded capture, Sgt. Farrell’s alleged discounting of Plaintiff’s arm-injury
claim (a claim not made until after Sgt. Farrell began to arrest Plaintiff despite the
fact that he had been in Sgt. Farrell’s company for roughly 30 minutes when the
handcuffing began) was reasonable.3 Cf. Jackson v. City of Bremerton, 268 F.3d
646, 652 (9th Cir. 2001) (in arrest for failing to disperse, pushing suspect to the
ground and kneeling on her back not excessive force despite fact that suspect
informed officer of her pre-existing back and shoulder injuries); Morreale v. City
of Cripple Creek, No. 96-1220, 1997 WL 290976, at *1, 5-6 (10th Cir. May 27,
1997) (in arrest for driving with a suspended license, milder handcuffing of suspect
behind her back not excessive force despite suspect's request that she be
handcuffed in front to avoid aggravating pre-existing shoulder injury).
3
Sgt. Farrell did see that Plaintiff had medical records and prescription drugs with him. And,
before the arrest began, Plaintiff claims that he told Sgt. Farrell that Plaintiff had recently been
released from a hospital after a motorcycle accident.
Perhaps, if Plaintiff, before the physical part of the arrest began, had also told Sgt. Farrell
that Plaintiff’s arm was injured, we would be more inclined to conclude that the Constitution
required Sgt. Farrell to credit that statement. But, that is not what occurred here.
5
That Plaintiff’s handcuffs were not removed until about fifteen minutes after
his initial handcuffing does not transform what is otherwise a meritless
handcuffing-based excessive-force claim into a valid continued handcuffing-based
excessive-force claim. See Morreale, 1997 WL 290976, at *1 (plaintiff was
handcuffed for twenty minutes while transported to station, during which time
plaintiff complained of wrist pain from handcuffing: not excessive force). Plaintiff
admits that he -- even after the handcuffing -- never asked Sgt. Farrell to handcuff
him in front of his body, instead of behind his back. Nor did Plaintiff ask Sgt.
Farrell to remove the handcuffs altogether. And, Plaintiff admits that he never
asked Sgt. Farrell for medical assistance.4 Furthermore, there is no evidence of
delay for delay’s sake during the time Plaintiff was kept handcuffed.
Plaintiff’s petition for rehearing is DENIED. And, no judge of the Court
having requested a poll, Plaintiff’s suggestion for rehearing en banc is DENIED.
4
Plaintiff did testify that he moaned or grunted in pain while in transport to the police station
and that, once at the station, told Sgt. Farrell that he was in pain. And, evidence tends to show
that Plaintiff asked that his medications be brought with him from the scene of the arrest.
6