The Second Circuit’s decision in Shamir v. City of New York, No. 14-3606, 2015 WL 6214708 (2d Cir. Oct. 22, 2015) (Newman, Walker, Jacobs) is instructive on pleading police misconduct cases – namely, claims for excessive force.
This case arises from plaintiff’s arrest after putting a sleeping bag on the ground while attending an Occupy Wall Street demonstration near City Hall Park on September 15, 2012.
In an opinion written by Judge Newman, the Second Circuit reversed and remanded a lower court judgment dismissing plaintiff’s claim for excessive force (but affirmed the dismissal of plaintiff’s false arrest claim). As to plaintiff’s excessive force claim, the court held:
Paragraph 22 of the complaint supplies the factual predicate for understanding subparagraph 28(a) to allege use of excessive force in making the arrest. Paragraph 22 states, “P.O. Doe placed Mr. Shamir in zip-tie handcuffs and intentionally tightened them excessively, causing injury to Mr. SHAMIR’s lower arms.” Shamir’s 50–h testimony supplied further details of the pain and consequences of the tight handcuffing. … [T]here can be no doubt that the claim, on the facts alleged, warrants further consideration. Several decisions have recognized that excessively tight handcuffing that causes injury can constitute excessive force in violation of the Fourth Amendment, applicable to the states by virtue of the Fourteenth Amendment. (Emphasis added; paragraphing modified.)
The court “reluctantly” inferred a claim of excessive force from the complaint, noting that “[n]owhere in the complaint is there an explicit claim that excessive force was used in the course of Shamir’s arrest.”
The court held that the district court properly dismissed plaintiff’s claim for false arrest, explaining:
Probable cause did exist for arresting Shamir for disorderly conduct by violating an order to disperse. Shamir’s 50–h testimony, relevant to what the officers knew at the time of the arrest, establishes that police officers gave such an order. Despite Shamir’s vague claim that, in response to the order, he moved “from where he was located,” he admitted that he “went up to one of the police officers” and called him a thug. That approach to the officer is the antithesis of complying with an order to disperse. Even if, as Shamir suspects, the motivation for the arrest was his remark to the officer, the violation of the order to disperse provided probable cause to arrest. An officer’s motivation is irrelevant to the Fourth Amendment validity of an arrest. (Emphasis added.)