Salmon v. Blesser
802 F.3d 249
2d Cir.2015Background
- Salmon accompanied his attorney to Albany City Court to review a court file; he waited outside the clerk’s office because only lawyers were allowed inside.
- Officer Thomas Blesser ordered people to leave the area; Salmon said he was waiting for his attorney and offered to summon him.
- Blesser allegedly grabbed Salmon by the collar, twisted his arm behind his back, shoved and threw him out of the courthouse, and threatened arrest if he reentered; Salmon alleges permanent physical injury.
- Salmon sued under 42 U.S.C. § 1983 (First, Fourth, and Equal Protection claims) and New York law (intentional infliction of emotional distress); district court dismissed all claims under Rule 12(b)(6).
- On appeal, Salmon challenges dismissal of First Amendment, Fourth Amendment (unreasonable seizure/excessive force), and intentional infliction of emotional distress claims against Blesser in his individual capacity.
- The Second Circuit affirmed dismissal of First Amendment and emotional distress claims, but vacated dismissal of the Fourth Amendment claim and remanded, holding that use of force to effect ejection can plausibly constitute a seizure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether removal from courthouse by officer constituted a Fourth Amendment seizure | Blesser seized Salmon by grabbing and twisting his arm and throwing him out, so a seizure occurred | An order to leave or escort out does not constitute a seizure absent restraint; Sheppard controls | Vacated dismissal: physical force intentionally used to restrain and control movements can constitute a seizure; plausible seizure alleged |
| Whether alleged force supports an excessive-force claim absent a seizure | Excessive force claim arises from the physical ejection | Excessive-force claims require a seizure to be actionable | Dismissal of excessive-force aspect not sustained here because seizure was plausibly alleged; reasonableness remains for later proceedings |
| Whether removal interfered with First Amendment right of access to judicial records | Removal prevented Salmon from accessing court records (he was there to access file via counsel) | Being required to wait outside while attorney accessed records (or being ordered to leave) does not restrict protected expressive conduct | Affirmed dismissal: Salmon did not allege he personally attempted access or engaged in expressive conduct; no First Amendment claim pled |
| Whether alleged conduct states intentional infliction of emotional distress under NY law | The grabbing and twisting were extreme and outrageous, supporting IIED | Conduct falls within traditional tort (battery), so IIED is unavailable as a separate claim | Affirmed dismissal: IIED is a last-resort tort; available battery remedy precludes IIED claim |
Key Cases Cited
- Terry v. Ohio, 392 U.S. 1 (1968) (defines seizure as restraint by physical force or show of authority)
- Sheppard v. Beerman, 18 F.3d 147 (2d Cir. 1994) (order to leave and escort out of courthouse does not, without more, constitute a seizure)
- Brendlin v. California, 551 U.S. 249 (2007) (seizure inquiry asks whether a reasonable person would feel free to terminate the encounter)
- Florida v. Bostick, 501 U.S. 429 (1991) (seizure inquiry framed as whether a reasonable person would feel free to decline requests or terminate encounter)
- California v. Hodari D., 499 U.S. 621 (1991) (seizure includes a laying on of hands or application of physical force to restrain movement)
- County of Sacramento v. Lewis, 523 U.S. 833 (1998) (Fourth Amendment covers only searches and seizures)
- Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) (public and criminal trials must be open; discusses assembly for lawful purposes)