Tenth Circuit Court of Appeals on De Minimus Injuries in Excessive Force Cases

Apropos a recent post entitled, "Excessive Force, De Minimus Injuries, And Tight Handcuffs," a unanimous three-judge panel of the Tenth Circuit Court of Appeals today handed down a thorough excessive force case that begins:

After Robert Fisher mistakenly shot himself twice, his wife called 911. Two officers responded to the call. Fisher alleges, despite the seriousness of the gunshot wounds to his bicep and stomach, the officers handcuffed him in a painful manner that exacerbated his injuries. Fisher filed suit, claiming the officers violated 42 U.S.C. § 1983 by employing excessive force in violation of his Fourth Amendment rights.
The district court disagreed and granted summary judgment to the officers on qualified immunity grounds. The court concluded that, although the force used by the officers was excessive, the resulting injuries themselves were insufficient as a matter of law under our precedent to permit recovery.
Taking Fisher’s allegations as true, we conclude a reasonable jury could find his injuries sufficient to satisfy our minimal threshold injury requirement. Accordingly, we REVERSE.
Fisher v. City of Las Cruces, No. 07-2294 (10th Cir. Oct. 19, 2009) (here).  Although the panel held that the officers were not entitled to qualified immunity, the panel seemed to suggest that a plaintiff's injuries must be more than de minimus.

Concurring in the judgement, Judge Neil  Gorsuch, who has obviously given a lot of thought to the de minimus injury requirement, astutely writes:
In Section II.A.3, however, the majority takes a detour, asking whether, in addition to satisfying all three Graham factors, Mr. Fisher has also shown that he suffered a “non–de minimis injury.” Previously, we have required proof of some such injury only in cases involving allegations of overly tight handcuffing, and we have done so only to fill a small analytical void that Graham left open.
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Even more fundamental questions still lurk here. How are we to square our opinion today with Cortez’s admonition that “proof of physical [or emotional] injury . . . is not an essential element of an excessive force claim”? 478 F.3d at1129 n.24. And how do we reconcile it with the Fourth Amendment’s plain language, which condemns all unreasonable seizures?
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Are we certain that the Fourth Amendment really prefers, as an injury requirement might, eggshell plaintiffs over more resilient individuals? Or that the fortuity of whether an officer chooses to deploy handcuffs should determine the quantum of evidence a plaintiff must marshal to prove a constitutional violation? Most pointedly of all, how can we explain that free citizens must prove injuries to prevail on excessive force claimsunder the Fourth Amendment in light of the Supreme Court’s and our own refusal to require convicted felons to prove injuries to prevail on similar claims under the Eighth Amendment?
Judge Neil Gorsuch's thoughtful concurring opinion is required reading.

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