Maybe, kind-a sort of, not always … but sometimes.
Recently I posted an article about the recent Sixth Circuit Appellate Court case Hughey v. Easlick, No. 20 – 1804 (2021). The case identified the Sixth Circuit three prong test to evaluate a claim against law enforcement for excessive force due to handcuffing.
To juxtapose the claims against law enforcement for excessive force, I will examine when law enforcement can use handcuffs during an investigative detention. Each investigative detention must be evaluated based on the totality of circumstances of that individual stop. A brief investigative stop of five minutes or less may be considered unconstitutional due to the length being too long. While a much longer stop of thirty minutes may be reasonable. The Fourth Amendment has no time clock and investigative detentions are ripe for this application.
Legally, there are two stages to examine for analysis. The first is the application of handcuffs and the second is the maintenance of handcuffs during the detention or arrest. This article will focus on the first stage – application of handcuffs.
In order to detain a suspect, the officer must have reasonable suspicion that the person is involved in criminal activity. Terry v. Ohio, 392 U.S. 1 (1968). But the right to detain a suspect does not permit law enforcement to handcuff the suspect every time. So what factors permit law enforcement to handcuff a detained suspect who is not under arrest? The Sixth Circuit Appellate Court addressed these factors with negative language in 2015 “If there is no specific reason for the officers to believe that the detainee poses a risk of flight or violence, “a bare inference” or speculation that the detainee may somehow be violent is not sufficient to justify the use of handcuffs. Brown v. Lewis, 14 – 392 (6th Cir. February 26, 2015). Consequently, the two factors that WILL permit law enforcement to handcuff during an investigative detention is risk of flight or risk of violence.
Risk of Flight
My experience of pre-flight indicators include:
- Scanning – the suspect scans beyond the officers at scene looking for an escape route.
- Walking-pacing-rocking back and forth-excessive movement-distancing – Suspects I have encountered have done one or two and in some cases all of these prior to fleeing.
- Hand and arm movements – Suspects will have herky-jerky hand and arm movements prior to fleeing. Often the suspect will crack his knuckles, wind up like a batter in the on-deck circle, fist-clench, wrist bent, clap his hands or stretching his legs. No suspect wants to pull hammy with law enforcement in pursuit.
- Verbal clues – Suspects will sometimes hesitate in answers just prior to fleeing. This indicates their mind is processing escape information rather than answering a question. I made several mistakes early in my career when questioning suspects. Most specifically, when I caught a suspect in a lie, I would immediately challenge the suspect on the lie. This is a more often a significant error. Do not let the suspect know that you know he is lying. Use your feigned ignorance to your advantage. Another indicator is tone of inflection and of course word choices. At times the use of profanity can be common, as part of the detainee’s everyday life. But in context the tone and application of profanity can be a clue that the suspect is about to flee.
- Impairment – When suspects are impaired due to any myriad of substances flight is a corresponding response to the presence of law enforcement. The good news is that capturing suspects who flee while impaired are often easier to catch than those who are sober. Of course, handcuffing the impaired can be another story.
Risk of Violence
My experience of suspects who exhibit pre-violence indicators include:
- Non-compliance with law enforcement orders. This factor is responsible for most viral law enforcement videos. If the suspect had only complied from the outset of the encounter the officer would not need to use force to mandate compliance.
- Hiding hands – suspects who hide his hands, most especially after orders to show their hands is a significant factor in pre-fight indicators. Often the suspect is not showing his hands because he is secreting a weapon or retrieving a weapon.
- Body tensing – Suspects will clench his fists, bow up their torso, arch his shoulders, contort their face and have tense neck muscles just prior to violence. This also includes the obvious sign of taking a fighting stance.
- The eyes are the window to the soul – Suspects will stare without blinking at the officer, stare beyond the officer or fail to maintain any modicum of eye contact. All could be pre-violence indicators.
- Impairment – Suspects who are high on any drug are prone to both flight and violence.
- Shirt removal – My personal experience is that suspects who remove their shirts is the equivalent to a NASA countdown to a spacecraft take off – something violent is about to happen or at least a dramatic verbal exchange. At times this event is accompanied with the shirtless man’s friends holding him back as if they are peacemakers. The goal would be to handcuff the suspect prior to peeling off his shirt but if that cannot be accomplished the officer should quickly move to handcuff a suspect, with reasonable suspicion that he was involved in criminal activity, who rips off his shirt.
If a suspect exhibits some of these aforementioned clues during a lawful investigative detention a law enforcement officer may handcuff the suspect until probable cause to arrest is established or the reasonable suspicion dissipates, and the suspect is released. Of course, there are other factors that a suspect may exhibit prior to flight or violence. The key is for law enforcement to articulate the reasoning for handcuffing a detained suspect.
The Sixth Circuit Appellate Court has previously held that use of handcuffs during an investigative detention is lawful so long as some of the aforementioned factors are met.
“[T]he use of handcuffs [does not] exceed the bounds of a Terry stop, so long as the circumstances warrant that precaution. Houston v. Doe 174 F.3d 809 (6th Cir. 1999)
“We hold that, given the arrestee’s resistance and general noncompliance, Swoap did not violate the Fourth Amendment when he applied handcuffs without checking for tightness and double locking at the moment of arrest.” Getz v. Swoap, 833 F.3d 646, 654 (6th Cir 2016).
The Ohio Tenth District Appellate Court provided a detailed explanation as to why two Columbus Police Officers could handcuff a suspect during an investigative detention in 2008:
Using handcuffs as a method of detaining defendant and the driver served the purpose of preventing flight during the investigatory stop. Thus, the use of the handcuffs was a reasonable restraint on defendant’s liberty in view of the circumstances that provided the basis for the investigatory stop. Therefore, we conclude that the initial detention of defendant, which included the use of handcuffs, did not constitute an arrest and was constitutionally valid. State v. Carl A. Davis, Jr. 2008-Ohio-5756, November 6, 2008.
- To emphasize there are two stages of handcuffing that the court will examine; application and maintenance. This article has focused on the first stage – application. The second stage, maintenance, can be further examined in When Can Handcuffing be Considered Excessive Force?.
- Law enforcement should ensure that documenting why the suspect was handcuffed during an investigative detention is substantive. Simply writing one or two sentences may not be enough.
- Officers should also use the cruiser cameras and/or body cameras to their full advantage. Provide narration as to what you see during the investigative detention and explain to the suspect that the handcuffing is only temporary until more information is obtained. Once the handcuffs are on the suspect and the scene is safe, the officer must double lock the handcuffs, check the gap and assure that handcuffs are not too tight or too loose but rather – just right.
- This article has focused on handcuffing during an investigative detention. If an officer has probable cause to arrest a suspect, then the suspect should be handcuffed immediately. Handcuffed suspects are less likely to be combative and if the suspect becomes combative while handcuffed, he is much easier to control.
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!