This article was featured in Lexipol’s Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys. Subscribe here!
McGrew v. Duncan, 2019 (6th Cir. 2019)
Over the past year, Lexipol’s Xiphos newsletter has featured several court decisions focusing on alleged excessive force by tight handcuffs. Documenting proper application of handcuffs, double-locking and checking for proper fit are some of the easiest risk management steps in policing. This case illustrates the risk of alleged tight handcuffs, along with some possible room for talking nice while thinking mean.
Officers served a search warrant at Katrina McGrew’s home in the late evening hours. McGrew described the officers as wearing all black with masks concealing their faces with only their eyes showing. One officer threw McGrew to the ground, knelt on her back and handcuffed her. McGrew told the officer the handcuffs were tight, to which the officer responded, “[S]hut up, bitch, you shouldn’t be so fat.” When McGrew complained again, the same officer responded, “[I]f you don’t shut your f***ing mouth I can blow your head off and nothing can be done.”
Officers seized a .380 caliber pistol and a brown paper bag of marijuana from McGrew’s home. They also allegedly seized a Kahr 9mm pistol, diamond earrings, a Galaxy tablet computer and a new cellphone, though these items were not listed on the search warrant return.
A few days later, McGrew went to the hospital and was diagnosed with a musculoskeletal strain in her chest and bruising of her wrist. McGrew sued, alleging excessive force and theft of her property.
The officers claimed they should be protected by qualified immunity on the excessive force claim. They argued to the court, “[h]andcuffing that results in bruising does not violate any clearly established constitutional right” and “[t]here was no manifest evidence of a clear physical injury.”
The court bluntly rejected their argument as contrary to clearly established law, noting prior rulings that stated, “allegations of bruising and wrist marks create a genuine issue of material fact” that bar the granting of qualified immunity.
The court did not comment on the officer’s profane and threatening responses to McGrew’s complaints about the tight handcuffs. But it is worth noting both the trial court and the appellate court quoted the officer’s alleged responses.
The appellate court remanded the case to the trial court where the next step may be a trial if the lawsuit isn’t settled. The jury is certain to hear, several times, about the officer’s colorful language and threat to blow McGrew’s head off. Jurors are human; it is easily foreseeable the officer’s comments could add zeros to any monetary award decided by the jury. Talk nice, think mean. When handcuffing, check for fit, double lock and document.
