Officers Not Entitled to Qualified Immunity Re: Excessive Force Claim that Cuffs Were Too Tight

Vondrak v. City of Las Cruces, ___ F.3d ___, 2008 WL 2967656 (10th Cir. 2008)

In Sec. 1983 action against two cops and the city arising out of cops' arrest of Plaintiff for DWI. COA first determines it has no pendent jurisdiction over Plaintiff’s cross appeal and City’s appeal. Next, COA says arresting cop gets qualified immunity on Plaintiff’s illegal arrest claim. Plaintiff’s statement that he had consumed one beer three hours earlier gave cop reasonable suspicion to subject him to a field sobriety test.

COA upholds denial of qualified immunity on excessive force claim against cops–handcuffs too tight and Plaintiff showed he was injured (permanently. Plaintiff is an orthodontist and claimed the injury affected his ability to work). Law is clearly established that too-tight cuffing equals excessive force. Plus, second non-cuffing officer has no qualified immunity because clearly established law imparts a duty to intervene to protect constitutional rights.

Hartz dissents on ground that he would not give qualified immunity on the illegal arrest claim, pointing out that Plaintiff said he had consumed only 1/3 of one beer 3 hours earlier, and that did not give reasonable suspicion to administer the field sobriety test.