western district of michigan and it's an excessive force claim regarding the allegation of excessively tight and unreasonably applied handcuffs there are two primary arguments for why the district court  rred and at the end of the transcript of the hearing the district court noted well you can take it down to lansing or up or down to cincinnati i should say and they'll take another look at it and the reason this court should take another look at it is because there are some purely legal questions regarding qualified immunity here that were resolved incorrectly and that really set the bar much too low for a handcuffing case and the problem in the six circuit it is the clearly established prong of quality of qualified immunity and whether individuals troopers law enforcement officers like trooper paper are unfair notice that every complaint of pain or discomfort from handcuff applied to tightly you all of them agree on that fact do you don't your honor and so we're taking the plaintiff's version of events and so if you take as true the deposition testimony our legal argument is that does not amount to a violation of qualified immunity to a clearly established violation of the fourth amendment and i believe you opposing counsel not with words in his mouth would argue that the handcuffs were factual as a matter of fact were so tight bring the facts of this case within the this morrison case which is seems to be controlling here and if that were the case the there be some disputed that's that's the problem well your honor i think maybe you are mistaking how to characterize facts what inferences to draw from the facts with the factual dispute we're taking as true the plaintiff's persion that ok i had indentations on my wrists afterwards that i never photographed never showed anyone or taking as true that he complained twice and the trooper ignored it twice and at one point said well hank of cers supposed to hurt now looking under the case law as it's developed in the sixth circuit it's important to know this incident was on september twenty eighth two thousand and thirteen before the brains decision that really nighttime stop in a rural area where there are two individuals in a car and the trooper calling for backup what we have in terms of these facts are no complaint immediately regarding the handcuffing there might be some lack of clarity on the record but if you look at page eight the number one zero four that's where the plaintiff mr hanson clarified under subsequent questioning he didn't complain right away he complained about five minutes into the detention when he was placed in the police car and then he claims he sent for maybe another thirty minutes in the car after that first complaint was ignored and made a later complaint and shortly after that later complain is when the handcuffs came off and these complaints were not terribly specific they were the handcuffs are tight and i have extremely high blood pressure and that was sort of the beginning in the end of it there was nothing the reason he didn't complain more quickly after his and it's an entirely i mean you can understand probably why didn't his interest to comply well i think you it's an interesting point your honor but there's what's expressed and what's reasonably infer from what's expressed and then there is what's on expressed and what is inside of a person's mind when they make a complaint and i don't think the case law says every complain about discomfort means drop everything and stop what you're doing and so what you have here is a generalized complaint about five minutes in and no second complaint based upon you think that an officer genuinely concerned about just on a human level about the ind it's plainly incompetent or no reasonable officer would do that and in this particular case where you have a night time rural stop like this and another individual to deal with backup on the way and you end up having a concealed weapons permit where it's not disclosed that there's a gun in the car where you have the odor of marijuana and marijuana found during an inventory search and luggage being removed from that car the length of the tension here and the lack of an immediate response was not required by clearly established law and the way that this attention ended was the posting of either two hundred two hundred fifty dollars bond on the side of the road and there are cases in the district courts level at least that say when a law enforcement officer has in mind will this stop is about to and these hank of serve out to come off there isn't that exigency to check the handcuffs immediately because they're about to come off anyhow and based upon the timeline we have here with this record you really don't have the level of culpability of the level of abuse or manliness that the fourth amendment clearly established law seems to require and i think another important argument the second reason why the district court should be reversed is really the lack of an objective we verifiable injury on the case law has said subjective complaints of injury and testimony about numbness and things like that are part of the consideration link in terms of causation to the handcuffing and the doctor said that this could be delayed that but he said based upon the history he was given likely due to the handcuffing but he wasn't given any history about the chronic conditions that this individual has and all it really was in fact that same doctor said unknown etiology which means unknown cause and so it's speculative on this record no reasonable jury could rely on that speculation that there is a causal link here and the causal link and the injury are the third element that's required in a handcuffing case and w this to be adequate every routine and cuffing would have to go to a jury i'm sympathetic with that argument but i did spend twenty one years defending scott and i've read a lot of medical records and  this guy did give an opinion that he based on the history he was given the and she demonstrated injury well that same doctor didn't provide the raw data on which that could have been did you the case that this particular nerve was not responsive to the stimulus because it's really the doctor's subjective reaction to or interpretation i should say because this particular doctor didn't even you doesn't but he has to have some reasonably reliable non speculative causal link for the unit or any and in this particular case just a reasonable jury could not rely on that evidence it would it would set the bar much too low your honor the point that i think you said you're sympathetic to a lot of those cases you know all this really goes to the extent of injury marise and the plaintiff's injury there were simply bruises and marks on the three is and whether the plaintiff's head in  wrist or not is a purely it's not an issue that requires expert testimony whether there was greater injury and whether there's medical proof to support it is kind of a sad way as to whether good morning your honour's cannot find it appearing on behalf of the first of all the question of jurisdiction really is what hovers over this appeal because this is of course an interlocutor into lakhia with tory appeal and it's clear that  excessive handcuffing now unfortunately for defendant interlocutory appellate jurisdiction does not extend in this case based upon the trial court's finding of genuine issues of fact in denial of summary judgment based upon qualified immunity our supreme court to mitchell versus forsyth and johnson versus jones basically stated that no such inte y appellate jurisdiction extends when there are genuine issues of fact in the trial record interlocutory appellate jurisdiction extends only to excuse me issues of law which me involve whether or not an alleged violation constitutes a violation of a clearly established right now the right to be free from excessive handcuffing is a clearly established right in the sixth circuit for the past fifteen years and therefore defendants appellants attempt to overturn what is known as a clearly established right by way of an interlocutory appeal in this case is clearly improper so we move to the substance of this case if you will  the facts are really very straightforward the facts are that mr hanssen was arrested arising out of a routine traffic stop and he was placed in handcuffs by trooper aper in a manner that were excessively tight mr hanson told the officer that the type of the incomes were too tight they were hurting him on multiple occasions the trooper made no effort to either loosen the cops or to otherwise address the issue according to mr hanson trooper responded with what might be evidence of a hostile statement essentially that the handcuffs are supposed to hurt furthermore mr hanson indeed sustained a serious injury as a result of the excessive handcuffing manifest by an objective test an e m g that  evidence to a rate crushing injury to the radial nerve likely caused by history to the handcuff handcuffing incident now the tr court found that each of these elements if you will were genuine issues of fact such that summary judgment should be denied and precluded qualified immunity the complaints of too tight handcuffs and further alleges some injury as a result there of the case in the record in this case is of course replete with the references of mr hansen's repeated complaints over an extended period of time we're not talking about five minutes ten minutes we're talking about thirty to forty minutes of excessive hand handcuffs center too tight  which are causing pain if you will excuse me trooper aper ed minutes that he was aware of mr hansen's complaints he admits further that he had actual knowledge of the potential for injury arising out of or due to excessive or too tight handcuffs of course he denies making any hostile statement to the effect that pain cops are supposed to hurt but he further admits that he made no effort to either loosen up or take any action to address the problem so plaintiffs  case has in fact set forth a proper case for excessive handcuffing based upon genuine issues of fact to go to the jury what the appellee excuse me the appellant is trying to do is impose a higher level of particularities in handcuffs skate in handcuffing cases in order to expand the qualified immunity that is otherwise afforded law enforcement officers and they're doing so by way of relying upon unpublished decisions feddis lee and o'malley i believe it is distinguished first of all on the facts because they related or regarded either unrelated injuries or de minimus injuries at best now more importantly this court has already reviewed and rejected the holdings in those cases in the case of baines versus cleveland the court rejected the particularities if you will  the increased heightened particularly standard imposed in those cases basically because of the failure of those cases to reconcile the clearly established right analysis similarity the defendants appellants fear that all cases now are jury questions thereby notifying qualified immunity is really without any foundation because the law really is and always has been that officers are responsible for acting reasonably the reasonableness standard under the fourth amendment analysis based upon totality of circumstances that's what the standard always has been that's what it continues to be a law enforcement officer needs no further particular that if an arrestee is complaining of too tight handcuffs he must do something reasonable under the circumstances the totality of circumstances to prevent a violation of a clearly established right statement that the handcuffs were supposed to hurt and the reason he can't agree to that despite his statement to the contrary is that a p word to do that if he were to agree that that in fact happened then that would be evidence of malice or arguably evidence of malice and that would be exactly what the defendant's appellants are trying to say what needs to be shown in a case with a heightened level of testimony is that he made no such attempt to do the finger test if you will or as he put the cuffs well my client indicates that he did not do that at the time of the at any time of the placement or thereafter but the point is that handcuffs can indeed get tighter if you will if they're not appropriately double locked and even when they are double locked presumably mechanical objects can fail if you will in and become tighter if you will it's also a situation where because of the some sense that if you put them on correctly it would take some time for the physiological occurrences to happen or an easing within twenty minutes or so after these changes i'm going to be there take a mob so why do i stop car and do that i mean there has to be some reasonable fear seems to me well and and that's where the totality of the circumstances come in because if we're talking about a situation which is presumably  very short a matter of a couple of minutes or something then i'm saying twenty minutes for a put them on correctly it took ten minutes for these handcuffs to do what you say they do which is mean if you take that to tell of the of the circumstances looking at it that way seem pretty reasonable well not necessarily i mean it all depends a meter twenty minutes could be an eternity it could be an attorney under the circumstances existing at the time and i must also suggest you get into the what the nature of the injury is and all of you heard may argue on your read that i thought there was an injury but it doesn't seem to me that it's such a serious injury well bones are sticking out i mean it's not an openly obvious situation we're blood is is evident we're dealing with a injury to a nerve you don't you can't see that you can only see a manifestation of tightness by w it's taking a reasonable action in response through a whole scenario i didn't hear you say why that was reasonable you just jumped them to the conclusion and  of the back seat was a contributing cause and it is no moment it is known that when you are in a confined area with handcuffs behind your back oftentimes officers will put the handcuffs in the front  the resting officer to take some action reasonable action under the totality of the circumstances now if this is if he's dealing with a truly exigent circumstance where it is truly  an reasonable to expect him to do such a thing because of the various grim vs connor factors the severity of the crime in the thread to immediate safety etc then maybe his failure to act was not  reasonable but under these facts as known his failure to do anything in the face of repeated complaints and ultimate injury is in fact  factual things and legal things to clarify references to a back seat are inaccurate your honor judge certain rich maybe a reference to a seat back would be accurate but trooper aper had a canine that was in the back seat hansen and paper both agreeing testified that hansen was in the front seat and that first complaint didn't common till five minutes into the encounter because for about five minutes hansen was on his feet standing between the two cars when the  backup deputy was showing up and when trooper a prevent turned his attention to mr hall the passenger in the car and they began searching the luggage searching through the vehicle and so really even though they're pushing a thirty to forty minute timeline minutes i made my first complaint to the trooper he ignored it i decided at that point it wasn't worth complaining anymore and then the final complaint came some time later and shortly thereafter the handcuffs were taken off and he paid the bond and then followed the trooper in his car so that his friend could go to an a t m and post his bond so i think the line of questioning by judge sirhan rich is useful because the question here is did trooper a poor act in such a way that's beyond the pale hansen's version of events that's why this court has jurisdiction taking as true hansen's version of events is the conduct of trooper aper so beyond the pale that no reasonable officer would have acted that way and that it was plain incompetence or unknowing violation of the law in our argument is that out in the field there needs to be some more flexibility here you can cannot have a jury some miscible issue on such a nominal routine case like this one i also want to correct that counsel referred to three unpublished cases as what was relied upon o'malley is the third one that was published at six five two third six six two published by the six circuit in tw what was clearly established for this trooper it was not clearly established that what is being sought here is should have happened that qualified immunity is not present and i guess a final point i want to make for the court is  that elements of a case elements of a claim and the existence of an affirmative defense are two distinct legal inquiries nominally meeting the three elements of a handcuffing case doesn't absolve this court's duty or the district court's duty to still do a fourth amendment qualified immunity analysis about what was reasonable under granby connor and so just to perhaps complete the court's consideration consider a couple of hypotheticals if you have an unconscious suspect who's wrists are broken who suffers a severe injury when handcuffed while unconscious that person is not going to meet the first two elements of complaining about the handcuffs and then having the t rooper ignore it but that person would likely still have a fourth amendment claim if you had a serious injury arising out of that hank coughing the converse is true in this case even if this court believes giving every break to the plaintiff here