Martin v. Heideman

DAUGHTREY, J., delivered the opinion of the court, in which MOORE, J., joined. KRUPANSKY, J. (pp. 1313-38), delivered a separate dissenting opinion.

DAUGHTREY, Circuit Judge. .

In this civil rights action, brought under 42 U.S.C. § 1983, the plaintiff alleged that three Kentucky police officers used excessive force when arresting him. After the district court bifurcated the trial in order to try the liability and damages issues separately, a jury found that the defendants had not used excessive force against the plaintiff and returned a verdict in their favor. On appeal, the plaintiff challenges the district court’s exclusion of certain evidence bearing on the extent of his injuries. Because the court excluded significant evidence of the severity of the plaintiffs injuries, impairing the plaintiffs ability to prove that the defendants used excessive force, we find it necessary to reverse and remand the case for a new trial. In doing so, we also reverse the trial court’s directed verdict in favor of defendant Paul, on qualified immunity grounds, for his forceful handcuffing of the plaintiff.

I. FACTUAL AND PROCEDURAL BACKGROUND

The plaintiff, Donald Martin, brought this action against three police officers and their two Kentucky employers, the City of Walton and Boone County, alleging that the officers used excessive force when arresting him. The complaint alleged that while the officers were arresting the plaintiff for a misdemean- or offense, they subjected him to “unlawful, harmful, unprivileged, and offensive conduct, including but not limited to, forcibly pushing him over a guard rail, pushing him to the ground, repeatedly thrusting his head and face against the pavement, twisting, pulling, and contorting his right hand, neck and head, and otherwise physically abusing him and subjecting his body to unnecessary force.” Martin alleged injuries that included a fractured right clavicle; bruises and abrasions to the head, face, neck, shoulder; and permanent injuries to his right arm, elbow, hand, and shoulder. He sought damages pursuant to 42 U.S.C. § 1983, as well as several state law provisions.

After the district court denied the defendants qualified immunity in a decision later upheld by this court, the district judge held a status conference at which he decided to bifurcate the trial, trying the issue of liability first, and reserving the issue of damages for a later trial if necessary. The plaintiff objected to bifurcation and, after the conference, moved to vacate the bifurcation order, asking the court either to enlarge the number of trial days or to permit certain medical evidence at the first stage of trial. In response to the motion, the court upheld the bifurcation order and refused to allow Martin to present the testimony of Dr. Rettay, a chiropractor, or the testimony of two psychologists, Drs. Ganshirt and Bley, who suggested that Martin had post-traumatic stress disorder.

Several months later, the district court held another status conference, at which the bifurcation order was again discussed. The court stated that “[wje’re not going to put on doctors or anything, but if [the plaintiff] can show from the hospital records that he had a fractured skull or something, then we can determine the amount of force used.” The judge indicated that he did not “have a problem with him saying he went to the emergency room. The problem [to be avoided] is getting in to him testifying of all the subsequent treatment.” The plaintiff indicated that medical testimony about his subsequent treatment and surgeries would corroborate his account of the force used during the arrest. Finally, after considerable discussion about how many doctors would be allowed to testify by deposition, the court instructed the plaintiff to “[s]tick to causation only as far as what’s going to be read at trial.”

At trial, the witnesses had different accounts of the facts. Donald Martin and his friend, Michael Serra, both testified that they had collided in an automobile accident several weeks before the February 5, 1991, encounter with the defendant officers. Although Martiffs car was damaged, the men agreed not to call the police because Serra was intoxicated and promised to pay Martin for the damages he caused. However, when the damage to Martin’s car was more than Serra could pay, the two realized that they would have to file an insurance claim. Believing that the insurance company would require a police report, the two decided to recreate the accident. They staged the accident in the middle of the night on February 5, called the police, and acted as if the accident had just occurred. When Officer Roger Paul of the City of Walton arrived and suggested that the accident appeared to have been staged, he called for back-up and separated the two men. Officers Robert Heide-man and Robert Heckle of Boone County soon arrived.

Martin testified that when he admitted to Officer Paul that the accident was staged, Officer Heideman began to shout at him profanely. Martin said that he backed up until he reached the guardrail, and finally yelled back at Heideman, prompting all three officers to jump on him. Martin alleged that he grabbed a nearby pole to avoid injuring himself, pushed the officers away, and fell to the ground. Officers .Paul and Heideman allegedly pushed and shoved Martin’s arms into his back, while Heckle placed his knee over Martin’s neck and jaw. Finally, the officers allegedly handcuffed him too tightly despite his complaints that his hands were becoming numb. Martin insists that he again complained to Officer Paul in the cruiser that his hands were numb and swelling. After Martin was driven about 20 minutes to jail and after he waited another 15 minutes in a holding cell, Officer Paul finally loosened the handcuffs.

The officers’ stories diverged. Officer Paul testified that after Martin admitted staging the accident, Paul decided to arrest him. Martin resisted arrest, and, according to Paul, it required three officers to arrest him. Paul’s testimony at Martin’s criminal trial had indicated, more specifically, that after being instructed to bring his hands down from behind his head in order to be handcuffed, Martin refused to do so and started “scuffing around.”

Officer Heideman, on the other hand, testified that when he told Martin that he would be arrested, Martin became angry, started shouting profanities at him, and began moving towards him. Heideman tried to arrest him, but Martin resisted. They both fell over the guardrail, Heideman landing on top of Martin. Heideman testified that he then handcuffed Martin without assistance. Officer Heckle’s story basically supported Heide-man’s version of the facts.

The district court limited the amount of medical evidence allowed more severely than it had indicated before trial. The court allowed the jury to hear the deposition testimony of Dr. Markesbery, Martin’s family physician, about Martin’s emergency room records on the day after the incident. The records showed that Martin had been diagnosed with contusions of the right arm and elbow, and a sore wrist. Two days later, Martin went to Dr. Markesbery’s office and received pain medication for multiple contusions and strains. Although the jury was permitted to hear Markesbery’s testimony about Martin’s condition immediately after the incident, it did not hear deposition testimony about his subsequent visits to the doctor for tendinitis in the right elbow, although Markesbery speculated that trauma could cause tendinitis. The court also excluded Markesbery’s testimony about previous injuries to Martin’s right arm, neck, and right hand, and his conclusion that Martin’s recent pain was unrelated to those injuries.

The court excluded the deposition testimony of Dr. Sommerkamp, an orthopedic surgeon who had diagnosed Martin as having posterior osseous nerve entrapment neuropa-thy, or a pinched nerve in the right elbow. Sommerkamp had testified in his deposition that it was “plausible, could even be considered probable” that the officers’ conduct caused Martin’s right elbow injury and that it was possible, although not probable, that they caused injury to Martin’s shoulder and rotator cuff. Dr. Sommerkamp explained that it could take weeks or months from the date of an incident causing hyper-pronation for any symptoms such as Martin’s to appear. During a mid-trial conference, the plaintiff proffered the deposition testimony of Dr. Sommerkamp, as well as Drs. Markes-bery, Ganshirt, and Bley.

At the end of trial, the court directed a verdict in favor of Officer Paul, on the basis of qualified immunity, solely on the plaintiffs claim that Paul had applied the handcuffs too forcefully. The jury delivered a verdict in favor of all of the defendants, which forms the basis for the judgment that Martin now appeals.

II. ANALYSIS

A. Exclusion of evidence following bifurcation

The plaintiff argues that the court denied him substantial justice by excluding evidence of the full extent of his injuries. He argues that he was not allowed to testify about his trip to the emergency room after the incident, nor about his injuries. He also complains that the court substantially limited the testimony of Dr. Markesbery, by allowing only a description of Martin’s emergency room treatment and first doctor’s office visit, and excluding evidence of subsequent visits. Martin insists that the court also erred by excluding Dr. Sommerkamp’s testimony about Martin’s two elbow surgeries allegedly caused by the defendants’ treatment. Finally, Martin argues that the court erred by excluding evidence by Dr. Rettay,- a chiropractor, as well as evidence about his post-traumatic stress disorder. Martin insists that all of this evidence about the extent of his injuries was essential to prove the amount of force used and to verify his credibility. He also argues that bifurcation should not be used in a manner that substantially and adversely affects the rights of a party. In re Beverly Hills Fire Litig., 695 F.2d 207, 217 (6th Cir.1982), cert. denied, 461 U.S. 929, 103 S.Ct. 2090, 77 L.Ed.2d 300 (1983) (discussing judge’s discretion to bifurcate, but warning of danger of depriving plaintiff of “legitimate right to place before the jury the circumstances and atmosphere of the entire cause of action”).

In evaluating a challenge to the exclusion of evidence, this court will not reverse the district court’s decision unless necessary to do “substantial justice.” Fed.R.Civ.P. 61. In a bifurcated trial, the propriety of excluding evidence may also involve the appropriateness of bifurcating issues under Fed. R.Civ.P. 42(b). Bifurcation orders are reviewed for abuse of discretion, with the court required to consider the potential prejudice to thé parties, the possible confusion of the jurors, and the resulting convenience and economy. In re Beverly Hills Fire Litig., 695 F.2d at 216.

After bifurcating the trial in this case into issues of liability and damages, the district court purported to limit the plaintiffs presentation of medical proof to evidence probative of liability. To determine whether the court improperly excluded evidence, we must look first to the elements of proof in a civil rights case claiming excessive force. In Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 1870, 104 L.Ed.2d 443 (1989), the Supreme Court held that the Fourth Amendment’s reasonableness standard governs excessive force claims arising in the context of arrests. In determining the reasonableness of force used in an arrest, one must balance “ ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ ” against the “governmental interests at' stake.” Id. at 396, 109 S.Ct. at 1871 (citing United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110 (1983)). The Court continued by saying that “[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 896, 109 S.Ct. at 1872.

The Court’s reference to the “nature and quality of the intrusion” must include consideration of the severity of any injury inflicted. When the district court limited evidence of the severity of Martin’s injury to evidence collected immediately after the incident, it ignored the fact that the severity of an injury may not be apparent immediately after an accident. For example, an apparently sprained or bruised leg that does not seem to warrant immediate treatment might later reveal fractures indicative of a more severe blow. Such evidence would clearly be relevant to establish the amount of force used. Similarly, evidence of a plaintiffs psychological injury may reflect on the severity of the force used. And, although a defendant may be able to argue that he or she did not cause the subsequently appearing physical or psychological injuries, the causation question is one for the jury. In this case, the district court’s attempt to draw a simple line excluding all evidence beyond the emergency room notes was error, requiring reversal. Moreover, because the extent of the plaintiffs damages was relevant to the question of liability, the district court abused its discretion by bifurcating the trial.

B. Directed verdict in favor of defendant Paul

In a second issue raised on appeal, the plaintiff challenges the propriety of the directed verdict entered by the district court in Officer. Paul’s favor on the question of excessive force in handcuffing. Defendant Paul responds that an arrestee’s right to be free from too-tight handcuffing is not “clearly established” and, therefore, is not actionable under § 1983.

In Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), the Supreme Court held that:

[Gjovemment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

Because most legal rights are “clearly established” at some level of generality, immunity would be impossible to obtain if a plaintiff were required only to cite an abstract legal principle that an official had “clearly” violated. Hence, in Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987), the Court added that:

The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, ... but it is to say that in the light of preexisting law the unlawfulness must be apparent.

The district court found that at the time of the plaintiffs arrest, the law was not clearly established that the overly tight application of handcuffs was a violation of an arrestee’s constitutional right not to have excessive force applied during an arrest, citing conflicting cases from around the country. See, e.g., Howard v. Dickerson, 34 F.3d 978 (10th Cir.1994)(handeuffing despite known medical condition; qualified immunity denied); Palmer v. Sanderson, 9 F.3d 1433 (9th Cir.l993)(handcuffing tight enough to cause bruising; qualified immunity denied); Greiner v. City of Champlin, 816 F.Supp. 528 (D.Minn.1993)(failure to loosen cuffs; qualified immunity upheld), aff'd in part & rev’d in part, 27 F.3d 1346 (8th Cir.1994); Cooper v. City of Virginia Beach, 817 F.Supp. 1310 (E.D.Va.1993)(no serious or lasting injury from tight cuffs; qualified immunity upheld), aff'd, 21 F.3d 421 (4th Cir.1994); Grooms v. Dockter, 1996 WL 26917, 76 F.3d 378 (6th Cir.1996) (per curiam) (handcuffing caused permanent damage to wrists, carpel tunnel syndrome; qualified immunity denied); Elrich v. Wright, 1987 WL 44485, 829 F.2d 38 (6th Cir.1987) (per curiam)(bruising; qualified immunity upheld), cert. denied, 484 U.S. 1030, 108 S.Ct. 761, 98 L.Ed.2d 772 (1988); McPherson v. Auger, 842 F.Supp. 25 (D.Me.1994)(cries of pain caused by too-tight cuffs; qualified immunity denied).

This circuit, however, has chosen to view an “excessively forceful handcuffing” claim under the general excessive force rubric. In Walton v. City of Southfield, 995 F.2d 1331, 1342 (6th Cir.1993), we denied qualified immunity to an officer who handcuffed a woman with a shoulder injury. Although Walton was decided in 1993, the incident occurred in 1988, and we confidently denied qualified immunity because the case presented a genuine issue of fact regarding whether excessive force was used. Because clearly established law in 1991, the time of the incident in this case, prohibited an officer’s use of excessive force, and because a genuine issue of material fact exists as to whether Officer Paul used excessive force under the circumstances, the district court erred by granting Paul qualified immunity on the handcuffing issue.

Finding that the district court denied the plaintiff substantial justice by excluding relevant, non-eumulative evidence of the severity of the plaintiffs injuries, and that the court further erred by directing a verdict in favor of defendant Paul, we REVERSE the judgment and REMAND the case to the district court for retrial.