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.
See Cortez v. McCauley, 478 F.3d 1108, 1129 (10th Cir.2007) (en banc).
Indeed, it was common ground shared by every member of the
en banc court in
Cortez that,
outside the context of a claim alleging overly tight handcuffing, proof of injury is not essential to an excessive force claim.
See id. at 1129 n. 24 (holding with respect to Tina Cortez, who was not handcuffed, that “proof of physical injury ... is not an essential element”);
id. at 1147 (Gorsuch, J., concurring in part and dissenting in part) (noting with respect to Tina Cortez that “the circumstances of an encounter ... may themselves be so outrageous as to demonstrate excessiveness” without any evidence of a consequent injury). In discussing the injury requirement in
Cortez, we carefully explained that the relevant issue with respect to Rick Cortez's tight handcuffing claim was “whether the
failure to adjust Rick Cortez's handcuffs during an arrest constitutes excessive force,” and held narrowly that “
unduly tight handcuffing can constitute excessive force where a plaintiff alleges some actual injury
from the handcuffing and alleges that an officer ignored a plaintiff's timely complaints (or was otherwise made aware) that the
handcuffs were too tight.”
Id. at 1129 (emphases added).