*2 CALABRESI, Circuit Judges. NEWMAN, JON 0. Circuit Judge. pre-dawn A conversation sidewalk be- tween officers and a member public that began request with a help for finding a bathroom escalated into a con- frontation, an a struggle, a use of lawsuit, pepper spray, and now this appeal from dismissal of the lawsuit. Imani appeals from the June 2014, judgment of the District Court for (Kath- the Southern District of New York Forrest, erine B. Judge), District granting a motion for summary judgment by New City police York officers Justin Naimoli and Theodore City Plevritis and the New York. against
We conclude that Brown’s claim the officers for unlawful arrest is defeated by their of qualified immunity, defense First properly Amendment claim was dis- merit, missed claim lacking any as and her against them for use of excessive force must be remanded for trial. We have no occasion to consider Brown’s claims against City because her on ap- brief peal not challenge does the dismissal of part, those claims. We therefore affirm in in part, reverse and remand.
Background and, undisputed, Several facts are appeal grant this from the of the Defen- summary dants’ motion for judgment, Moskovitz, Joshua S. Beldock Levine those that disputed are must be viewed in LLP, York, (Jonathan Hoffman New N.Y. Plaintiff, light most favorable to the Moore, C. Beldock Levine & Hoffman Imani Brown. See Costello v. Bur- LLP, York, N.Y., brief), New (2d Cir.2011). lington, 632 F.3d Appellant. 15, 2011, night On the of November Steiner, Counsel, Corp.
Julie Asst. New Occupy gathered Wall Street crowd York, Carter, N.Y. (Zachary Corp. W. Zuccotti Park lower Manhattan. Brown on, facts, From most of the message saying point this a text
received testimony recounted in depositions She to ob- raided. went park had been hearing, a civilian complaint dispute. 2 a.m. and left around 5 a.m. around serve Brown’s version. We continue with When away, she Two blocks to find a bathroom. arrived, only and two other to an spoke store and came to a Starbucks *3 persons waiting near the were Starbucks that was told her the store employee who police car, approached store. Brown 5:30, open which was would closed but down, rolled gestured to have the window minutes on later. She remained or 20 through the spoke pas- and to the officers sidewalk, intending until the wait Brown if senger side front window. asked opened. store could the officers knew where she find a Naimoli and Plevri- night That Officers bathroom. 11:15 to 7:50 working p.m. tis were question One officer answered her Park They a.m. drove Zuccotti shift. own, question of his do we look “What being They as cleared. the crowd like, the potty police?” Brown asked her traffic blocking a man who was arrested question again. One officer answered that taking Booking him to Central and after park.”3 Brown in the “piss should Brown around patrol their 4 a.m.
resumed illegal asked whether that would be and was told Brown that would be. then a.m., manager an assistant of the At 5:05 said, you just going help not “[S]o reported called 911 and Starbucks store me, you you can anything don’t have offer knocking on door of his people six me, any can offer?” One you advice offi- store, get trying to in to use the closed cer, car, still in then told police they He said were “knock- bathroom. go that she home.” She respond- “should really really trying to ing on the door bad away ed that an hour she lived over and in,” “making nasty get and comments.” preferred until to wait Starbucks of Undisputed Statement Defendants’ opened. ¶ Facts, operator 21.2 The 911 heard the manager tell an to lock employee assistant away As Brown walked from door the outside be- bathroom car, the got out of the car “banging on ... he heard the doors cause ID. repeatedly asked for her She (911 call outside doors.”. Exhibit 16 [t]he why it, they gave asked wanted no dispatcher A radio transcript). immedi- explanation, provide and she refused to call ately relayed the substance of the 911 any acknowledged ID. As Plevritis Officer Plevritis, in stating Naimoli and Officers deposition, grabbed his he then banging part, people on the doors “[S]ix her, your and said me identifica- “[GJive leave at refusing to Starbucks coffee.” you’re going placed tion or to be under transmission, Hearing refused, Naimoli arrest.” again he told When location, her, the store Plevritis drove to arriv- “You’re under arrest.” Brown re- being peatedly why minutes of the 911 call. asked she was arrest- ing there within fact,” dispute "does not 3. The dismisses this crude remark The Plaintiff this dissent "irony,” prompted by the understandable offi- knocking disputing that she was not on people had cer's awareness that some urinat- making nasty and that the doors or comments during "Occupy” protests. ed in Park Zucotti doing things these no one else was while she Dissenting op. The first word present. See Plaintiff's Statement of Un- City police vehicles of all New York officers is Facts, disputed It21. "courtesy,” "irony.” explanation. no attorney prepared ed but received One who a criminal com- arm, grabbed both of the officers then plaint. That complaint charged Brown back, attempted it behind her (1) (3) held with violating subsections An kicked apply handcuffs. officer § Penal Law 240.20 “engaging] her, legs out from under and she fell to her violent, fighting and in tumultuous and A videotape knees. shows handcuffs threatening behavior” and “us[ing] abusive placed had been one Brown’s wrists and obscene language public ground. before she was thrown On place” “with public intent to cause incon- ground, Brown reached with her other venience, annoyance alarm, and reck- wallet, arm for phone, and scattered lessly causing a risk thereof.” The com- purse. contents of her plaint, signed which Officer Naimoli under *4 oath, alleged personally that he observed videotape The shows both officers on the Brown “banging on the door of Starbucks ground, endeavoring bring to her free arm and screaming” and that her conduct behind her in order to complete the hand- gather “caused a crowd to people cuffing. videotape struggle shows a express alarm.” Officer Naimoli later ad- Brown, shouting by with considerable the mitted in his officers, deposition that he did not bystander. personally observe Brown banging on the Officer Plevritis administered a burst of door of Starbucks and that he did not see pepper spray directly to Brown’s face. at a yelling employee. Starbucks When Brown realized her skirt had come up exposed,”, and “that bottom was [her] After the criminal complaint was dis- if pull she ask the officers could her skirt Brown, missed, filed suit under 42 U.S.C. declined, They down. prudently one of 1983, § alleging claims for false arrest “No, answering, them it wouldn’t have and use of excessive force violation of that, you been like if causing weren’t trou- Amendment, the Fourth and retaliation in did, ble.” When asked what she then violation of the First Amendment. The “reaching my Brown said she was with ultimately granted District Court the De- free arm trying pull my skirt down.” summary judgment, fendants’ motion for struggle As the to handcuff contin- concluding that “[qualified immunity insu- ued, Officer Plevritis administered a sec- liability lates defendants on pepper stray directly ond burst of in her First and [Brown’s] Fourth Amendment face from a distance of one foot. claims,” York, Brown v. City New No. completed The officers then the hand- 13-cv-1018, 2767232, 2014 WL at *10 cuffing, feet, placed raised Brown to her (June 18, 2014), probable because “even if car, her in police and drove to a exist,” actually cause did not “the officers police station. plaintiff directed go leave the area and home, plaintiff but decided not to leave report officers’ arrest stated that area, and told the that officers Brown “was asked to leave after caus- home,” Brown, go could not 2014 WL ing a disturbance in front of a store” and added), (emphasis *9 give responded ID and “refuse[d] objectively it was for profanity.” (emphasis “[t]hus Document 54-11 reasonable added). probable Her to believe that officers] arrest was stated to be for [Brown],” “refusing to cause existed to move on” violation of the arrest id. The disorderly provision, granted summary judgment conduct subsection Court also for Later, § of N.Y. Penal Law 240.20. Officer on Defendants the excessive force Naimoli spoke claim, with an assistant district concluding that their use of force likely an that would have explanation under circum- “reasonable arrest, struggle, Id. at avoided the sidewalk
stances.” *8. lawsuit. pepper spraying, and this
Discussion legal considering issues Before 1. False Arrest Claim that, pause we to observe even
appeal, dismissal Turning to District Court’s events, ar- of the the officers’ version claims, we first consider Brown’s scuffle, rest, this lawsuit ensuing claim false arrest. The District Court for if very likely have been avoided could that the to arrest concluded facts sufficed explained why they to Brown had disorderly ‘congre- her “for conduct for asking Commendably, for ID. were persons public in a initially gating] intended to issue a sum- with other mons, refusing] rather than make an with a place comply law- ” conduct, offense, disorderly disperse.’ ful of the order law,4 York New an Brown, a “violation” under at *6 (quoting WL category less serious than even 240.20(6)). offense Viewing § N.Y. Law Penal pro- To use the summons “misdemeanor.”5 Brown, light facts in the we favorable cedure, to know needed Brown’s are Judge not as sure as Forrest *5 request and address. Their for her name to officers issued an “order” dis- entirely ID produce appropri- to some was perse. Judge Forrest cited the Defen- repeated inquiry, ate. So was her “[0]n Undisputed' dants’ Rule 56.1 Statement of grounds?” what ¶ Facts, 46, in they which asserted that “they to leave the [Brown] directed area point, At that the officers could have ” Brown, home,’ ‘go 2014 WL that her explained they needed name and added), at *6 (emphasis but Brown’s re- from ID in order to a address issue sponse to that claim that is Instead, summons.6 as Officer Plevritis home,” told go her that she “should in his he deposition, grabbed admitted reply that words were in to spoken these he going Brown before told her she was to “you have anything statement: don’t Then, a still no get giving summons. me, any you to can ID, offer advice offer?” why they they reason wanted her told Facts, Undisputed recounted, Plaintiffs Statement only, Plevritis as Officer ¶ added). citation, (emphasis A fact-finder con- you a going give were “[W]e evidence, jail.” sidering including all the what you going now Neither but Brown claims was the rude explained sug- claims that he to Brown officers’ officer gestion park,” in the they “piss her name and address that she should needed summons, in a her ID to issue would entitled to conclude that order be advice "Disorderly year imposed.” N.Y. cess Id. 4. conduct violation." of one cannot be § 100.00(4). L. Penal 240.20. " offense, than a 'Violation' means an other 6.The dissent states that Brown should have infraction,’ 'traffic for which sentence to a n known that the officers her name and needed imprisonment days excess of term of fifteen in order to issue a summons. Dis- address imposed.” N.Y. cannot be See Penal Law " senting op. Perhaps she should have. offense, 10.00(3); means ‘Misdemeanor’ her, they But once the officers were arrested infraction,' than a other 'traffic for which situation, of the and it is total control their imprisonment sentence to term in excess explanation likely to her that would have days imposed, may of fifteen be but for which imprisonment episode. to a in ex- of the a sentence term of avoided escalation person go that a should home did not rise and the other officers “have communicated disperse. they possess to the level of an order to information individually, pooling their collective knowledge thereby Nevertheless, agree we probable cause threshold.” meet District Court that the false arrest claim Chavez, United States 534 F.3d qualified was defeated the officers’ im (10th Cir.2008). claim, munity although we reach that con case, In the pending receiving the officer by a clusion different route than that taken the 911 call knew that six people were by the District Court. Whether or not trying get into a closed Starbucks store disperse, there was an “order” to the un bathroom, 5 a.m. to use a they were disputed facts available to be considered “knocking on the door really really bad likely probable showed cause to arrest for in,” trying get “making nasty com- 240.20, subsections 1 or 2 of section which ments,” and heard the assistant store man- provide: person guilty A disorderly ager tell an employee to lock the doors when, conduct with intent to public cause because he banging heard on the outside ..., ... annoyance recklessly creating report doors. That provided probable a risk thereof: cause to arrest whoever was outside the engages 1. He in ... tumultuous ... store asking get in to use the bathroom. behavior; or Their banging on the provided door a rea- 2. He makes unreasonable noise[.] sonable basis to believe that were First, it does not matter that the engaged behavior, in tumultuous especially officers arrested for violation of subsection light of the manager’s assistant ex- 6 of the disorderly provision, conduct pun pressed concern that the doors needed to “ ishing failure disperse. proba ‘[T]he be locked. inquiry ble cause is not necessarily based *6 When Officers Naimoli and Plevritis ar- upon actually the offense by invoked rived at the store within minutes of hear- arresting upon officer but whether ing the dispatcher’s relay of the 911 infor- facts known at the time of the arrest ob mation, people saw three still outside the jectively provided probable cause to ar store, and by were told Brown that she ” Couch, 149, Jaegly rest.’ v. 439 F.3d 153 bathroom, wanted to use the their on-the- (2d Cir.2006) (quoting United States v. information, scene combined with the 911 Jones, (1st Cir.2005)). 34, 432 41 F.3d information, call provided a reasonable ba- Second, under the imputed “collective or sis to believe that Brown was one of the doctrine,” knowledge Zellner v. Summer- people who had been banging on the store “ lin, (2d 344, Cir.2007), 494 F.3d 369 ‘an doing doors and so intensity with sufficient ... permissible arrest is where the actual to prompt manager the assistant to fear arresting ... specific officer lacks the in- that he needed to lock the doors.. Even if formation to form probable the basis for facts, collectively these by po- known ... cause but sufficient jus- lice, information to did not probable suffice to create tify the ... arrest was known other law disorderly arrest, cause for a conduct enforcement initiating officials in- “objectively reasonable for the officers ” vestigation.’ (quoting id. existed,”7 United States v. probable believe that cause Colon, (2d 130, Cir.2001)), 250 F.3d 135 of competence “officers reasonable 382, (2d "arguable Cir.2013). 7. We have proba- called such belief F.3d 390 City Hartford, ble cause.” Zalaski v. 723 of 100 (1989). 1865, 104 Deter L.Ed.2d 443 probable S.Ct. disagree on whether
could
requires
v.
“a careful
mining
met.” Golino
excessiveness
cause test was
of
(2d
Haven,
864, 870
F.2d
Cir.
quality
New
950
nature
of
balancing of the
1991).
entitled
Those circumstances
Fourth
intrusion
on the
individual’s
quali
to the defense of
arresting officers
against
interests
the counter
Amendment
immunity.8
fied
Id.
vailing
interests at stake.”
governmental
(internal
396,
quota
Id. at
vailing.
qualified
A
defense
severity
1.
of the crime
“[T]he
law
displaced by
a violation
state
issue,”
Scherer,
Davis v.
468
requirements. See
2.
an im-
suspect poses
“whether
3012,
194
n.
104 S.Ct.
82
U.S.
&
the offi-
safety
mediate threat to
Johnson,
(1984);
139
v.
179
L.Ed.2d
Clue
others,”
cers or
Cir.1999).
(2d
57, 62 n.
F.3d
actively resisting
he is
“whether
qualified immunity
defense to
retained
attempting
arrest
arrest or
evade
the claim that
the arrest violated
flight.”
Fourth Amendment.
“
And,
continued,
Id.
‘rea-
Court
Force Claim.
Excessive
particular
of a
use of force
sonableness’
must
from the
of a
judged
perspective
be
prohibits
Amendment
Fourth
scene,
officer on
rather
reasonable
in making
the use of
force
excessive
hindsight.”
than with the
vision of
and whether the
used is ex
20/20
Id.
also made clear that
The Court
analyzed
cessive
to be
under
“
objective
standard is one of
reasonable-
Amendment’s
‘reasonableness’ standard.”
Connor,
ness,
mind,
386, 395,
490 U.S.
and the officer’s
Graham
state
(2004),
qualified immunity
de-
8. The
defense also
S.Ct.
L.Ed.2d 292
might
feats whatever claim Brown
be assert-
supported
qualified immunity
necessarily
*7
ing to the
brief detention that oc-
initial
damages
defense to a
claim based on that
curred,
arrest,
before announcement
stop.
grabbed
when Officer Plevritis
her arm after
provide
Although
ID.
she refused to
an
distinguishes
9. New York
an "of-
between
Brown contends that she was entitled to re-
"offense,”
fense” and a "crime.”
an
For
ID,
produce
her
fuse to
an
reliance on the
"violation,”
Law
which includes a
N.Y. Penal
case,
Texas,
coincidentally named
Brown
10.00(1), (3), police
§§
may
a
arrest a
officer
47,
2637, 61
443 U.S.
S.Ct.
L.Ed.2d 357
99
person
he or she
cause
"when
has reasonable
case,
(1979),
involving
unavailing.
In that
person
to believe that such
has committed
ID,
prosecution
produce
a
for failure to
presence.,”
his or
such offense in
her
the officers lacked even the “articulable sus-
140.10(l)(a).
§
Law
For a
N.Y.Crim. Proc.
Ohio,
1, 31,
picion,” Terry v.
392 U.S.
88
"crime,”
"a
which means
misdemeanor or
1868,
(1968) (Harlan,
S.Ct.
L.Ed.2d 889
20
10.00(6),
felony,”
§
Penal Law
N.Y.
J.,
stop,
concurring),
Terry
needed for a
see
person
may arrest a
"when he or she
officer
Brown,
51-52,
443
they could apply
and she re-
disputed
The relevant
facts are:
fused to do so.
(cid:127)
says
the pepper spray was
(cid:127) One of the officers kicked Brown’s
administered one
away
foot
from her
her,
legs
causing
out from under
her to
face; Officer
says
Plevritis
the first dose
ground.
fall to the
was from two
away
feet
and the second
dose from three feet away. It is undis-
(cid:127) One officer succeeded in placing
puted
policy
that the
of the New York
right
handcuffs on Brown’s
wrist.
City
Department
Police
instructs offi-
(cid:127)
Brown,
Both
struggled
cers not to use
spray closer than
forcing
body
ground.
three feet.
See New York
Police
(cid:127) Officer Plevritis used his hand to
Department
Guide,
Patrol
Procedure
push
pavement.
Brown’s face onto the
(Jan.
2000).11
No. 212-95
(cid:127)
(cid:127)
arm,
Brown’s left
without a hand-
trying
contends that she was
cuff, was under her as she fell to the
pull
use her free arm to
down her
ground.
skirt, which
exposing
her behind.
Thus,
it is not
suggests
relevant whether the officers
11. The dissent
that the Patrol Guide
thought the amount of
really
force used was
standard is not relevant because the excessive
necessary
provoked
or were
to use that
force standard derives from the Constitution.
amount of force
Dissenting op.
because of
abusive lan-
Supreme
[7]. But the
Court in
guage
Gamer,
contend Brown directed at-them.
Tennessee v.
471 U.S.
105 S.Ct.
respect,
(1985),
In this
a claimed Fourth Amendment
Courts 2010). most, a in Graham At her “resistance” was factors 20 identified the three balancing of permit easy application required refusal are relevant intru- by hands governmental against placing interest handcuffs behind interests, but aggregate the individual’s An assessment of all upon sion back. say about how very they have had little relevant Graham factors would seem three accomplished. Ob- balancing is to be this toward a of exces point determination weights to and, minimum, are no numerical viously, preclude there at a sive metaphor the weighing assigned, be against victim on a motion for ruling a the illusion creating for criticized has been summary judgment.13 realistically be All that can of precision.12 entitled to sum- The officers could be as to to make some assessment expected is judgment per if there existed a mary factor is relevant the extent to which each an refusal to se rule that arrestee’s submit aggre- make an present and then somehow always easy application of handcuffs all As is gate the factors. assessment police officers to use substantial permitted many analysis methods of true of force, including taking person force deter- prescribe, courts excessive incapacitating her with ground than to easier to describe mination is handcuffing. stray, accomplish We make. Indeed, by focusing no such know of rule. case, crime is severity of the In this arrest, only on resistance to the such a slight. disorderly unquestionably disregard three-factor anal- rule would maximum subject to a conduct offense Supreme required ysis that the Court days un jail, fifteen and the penalty of Even sufficient resistance to re- Graham. facts, as the offi derlying alleged even resisting in conviction arrest sult for does cers, of a banging are loud on the door preclude finding not of “excessive force wanting to use closed store someone Sullivan, effectuating the arrest.” 225 bathroom, nasty plus use of loud F.3d at 166. respect to the second language. With facts, Here, factor, posed undisputed no threat even Graham safety account of the officers shaded with officers’ whatever to why, no actively resisting episode, appears reason others. As standing, v. could fleeing, Tennessee each officer not Brown was cf. arms, 1, 1694, Garner, 6-8, 85 held simply brought 471 U.S. 105 S.Ct. have one of her, (1985), attacking put nor handcuffs physically 1 behind L.Ed.2d officer, simply Gagnier, an Sullivan v. wrists. Or could have sur cf. (2d her, moments, 161, Cir.2000), mak a few nor even rounded least for F.3d reasonably making an it clear that could not ing a move that officer could leave attack, handcuffing.14 Tra- until she submitted to We interpret threatening cf. assigns Disability "balancing'' Long v. Honda Term 10. The no Salomaa dissent's Plan, Cir.2011); (9th weight McE at all to the other Graham factors: 642 F.3d (2d voy Spencer, 124 n. 3 minor nature of offense the ab- v. F.3d Brown's 1997); injury Ryan, any Ford Motor 182 F.2d sence of actual or threatened of the Cir. Co. (2d Cir.1950). 331-32 officers. pointing suggests the force used 14.The dissent out the The dissent concludes that offense, by focusing exclusively on minor nature of Brown’s which is a was not excessive *9 factor, (al- resisting "freefing] leads to that Brown arrest relevant Graham the fact resisting way). Dissenting op. suspects minor 107- arrest for offenses.” beit in a minimal
103 availability threatening the form imply not mean to of resistance would do be way only of one aggressive accomplishing a less factor to be considered along of necessarily disorderly means that the tech- the minor an arrest nature of the conduct violation, thereby of nique that was used is shown to the absence actual or threat- officers, Police officers must ened harm to degree have been excessive. the and the force, of including taking entitled to make a reasonable selection her to ground be the among techniques for making applying pepper spray. alternative twice “The person an arrest. But when the amount of force fact that a a police whom officer by police taking attempts two officers involves resists used arrest no doubt 120-pound ground the justifies woman to use of degree officer’s some of force, spraying directly in the give twice face with but it does officer li- spray, availability of a much cense to pepper use force without limit.” Sulli- van, aggressive technique less is at least rele- 225 (emphasis F.3d at 165-66 in origi- nal). to making vant the ultimate determination whether force was used.
of excessive along continuum which the exces- jury making assessment of a is needed in siveness of force an arrest though this case. Even most of the assessed by facts is not marked visible sign- concerning A application posts. force are un- court’s considering role exces- disputed, jury will have decide wheth- sive force claims determine is to whether a jury, er Fourth Amendment factors, reasonableness was instructed as to the relevant exceeded when Brown was taken could reasonably that the find force used put case, after ground refusing her hands was excessive. In majority this her back and when officers and the strug- legal behind dissent differ issue. gled ground division, with her on the That and used not uncommon in cases con- spray accomplish handcuffing. sidering sufficiency evidence, leaves unwillingness, And even if the factual Brown’s while determination of excessiveness standing, to to a jury, sense, offer her hands for handcuff- whose collective common and, while on ing ground, by experiences, to offer her informed their life may complete left arm to well handcuffing is exceed that of all the members of this resisting found to be that non- panel.15 Dissenting op. damages, payment 109. The available means of officers liable for is almost effecting aggressive certainly by Brown's with less going City by arrest way to be made dispel that claim. by police indemnification or union. Maazel, Emery Margalit See Richard Ilian& speculates, any sup- The dissent without Why Rights Civil Lawsuits Do Not Deter Police record, that, port in the in the event that a Misconduct: The Conundrum of Indemnifica- liable, jury judg- finds the Solution, Proposed tion and a 28 Fordham paid will be their ment out of children’s col- (2000). study Urban L.J. A 587 n. for the lege Dissenting op. support, funds. 107. For years six to 2011 from 2006 revealed that the author of the dissent cites his own $348,274,595.81 rights was awarded civil previous speculation, City see Gonzalez judgments against settlements and New York (2d Cir.2013). Schenectady, 728 F.3d $114,000 officers, (0.03 City police of which percent) required paid by police to be likely speculation pay- A far more is that a officers, study ment, and the does not indicate any, City if will be made after a See, whether even some or all of this amount was e.g., settlement. "New York Settles paid by Occupy union. See Joanna C. Pepper- With Wall Street Protesters Schwartz, Police,” Times, Sprayed Indemnification, July New York Police 89 N.Y.U. And, 885, 913, (2014). jury if a were to hold L.Rev.
104 as much. See Maj. essentially concedes Amendment Claim
8. First (“Unusual a claim of exces Op. at 101 for claim—that Amendment Brown’s First force, are sive most the relevant facts in for her retaliation she was arrested record, to the undisputed.”). As visual in rally Zuccotti Occupy at the attendance “[tjhere this allegations are no There dismissed. properly Park —was any in or altered videotape doctored claim. support that no evidence to way, any contention that what de nor actually picts happened.” from what differs Conclusion Harris, 127 Scott v. U.S. part, in re- is affirmed judgment The (2007). L.Ed.2d S.Ct. in remanded for further part, versed force claim therefore Brown’s excessive proceedings. summary judgment at must be considered “in the light videotape.” depicted JACOBS, Judge, DENNIS Circuit 380-81,127 Id. at S.Ct. judgment part in the concurring dissenting part: claim not the wit- Brown’s does survive I to your eyes. “happy am ness of Since
I insofar as the Judgment concur in the id. itself,” speak to videotape allow the for majority First affirms dismissal 1769,1 5,127 n. made the S.Ct. have retaliation claim and the claim Amendment A footage play- available online.1 textual for false arrest. supplied Ap- in an by-play of video is force, to claim of As excessive pendix this As the use of opinion. majority jury for a trial deter- remands force, only rely of the facts I source force, in mine use of whether officers’ video) (other upon than own Brown’s suspect actively who was re- restraining testimony. objectively sisting was so unreason- Fourth Amend- able it violated the majority mostly agree and I Constitution- ment the United States happened prequel what in the to the video. and, accordingly, whether two officers of a.m., manager Around 5 of a Starbucks Department the New York Police in lower Manhattan called 911. The Star- (“NYPD”) personally should be liable yet were opened, people bucks had damages. From money her for that re- banging glass demanding access decision, I grettable respectfully dissent. coffee five shop bathroom. The Park, anti-Wall blocks Zuccotti where
I camped demonstrators had been Street majority days. its Two NYPD des- As characterizes recita- some officers were facts, patched They parked those in to the dispute pre- tion of the are Starbucks. light by, group gathered sented “in the most favorable to close observed Plaintiff, Maj. shop. ap- Op. Imani Brown.” at 95. front of coffee proached car and made known But the facts relevant use of captured by among seeking entry; those undisputed, and are that she was majority specifically, police guidance she asked high-quality footage. video Lucas; clearest, longest Ex. 20 to of. Joshua 1. The video is available at the of Andrew Decl. http://www.ca2.uscourts.gov/ footage is following S. Moskovitz. All of the video link: Docs/Pl’s_Ex%2018_OWSCraigCard7-65 on the "Multimedia .- available for download mp4 S. of the website’s See 18 to Decl. of. Joshua Mosko- Resources” section Court Ex. (‘'Video”). provide page. http://www.ca2. videos See vitz Two shorter “Decisions” uscourts.gov/multimedia_resources.html Ex. L Decl. some additional context. See *11 find an open majority where she could bath- The opinion about does not actually police Apparently, room. did not con- question storyline, injects but it criti- giving among such to be sider advice their cisms of police technique and tone that When went back to duties. Brown irrelevant, seem to me mostly and awfully door, police approached her. As the unfair: majority concludes, police at had least (cid:127) majority The compares height Brown’s arguable probable for arrest. cause (and sex) and weight to the height and police When the her for identifica- asked (and sex) weight policemen, of the two tion, balked, thereby she prevented and with suggestion more than a that then- being the encounter from resolved on the struggle to her was subdue unsporting of a summons. When the basis or (alternatively) unehivalrous in- present then demanded that Brown sufficiently masterful and competent. hands to again- be cuffed for she See, e.g., Maj. at 102 Op. (criticizing balked, this hold of a grabbing time metal police “taking a 120-pound for scaffolding of the erected in front of bar woman ground to the spray- twice begins the store. The video there. ing directly face with pep- As the video evidences: resisted per spray”); see also id. at 101 (listing arrest; police using subdued her mod- Brown’s and the officers’ height and ulated, force; graduated levels she was weight). comparison The size sharply at stage warned each measure what would follow; cuts way, the other of course. she to with spoken was forceful professionalism throughout; the first was short outnumbered trained NYPD preceded release of pepper spray by a bigger officers Whowere than she was: warning; spray had no appar- that, the easy inference is but for their resistance; ent effect on her she was restraint, professional they could have that a burst warned further would be ad- promptly subdued her and completely ministered; undeterred; she and only brutality. effortless shortly application after the second did she (cid:127) The majority cites the answers made allow her hands cuffed. to be After she by the NYPD officers to Brown’s re- complied, she was to the lead back seat of quest guidance on local toilet facili- car; police emerged when she a few answered, ties. One “What do we look later, moments were longer her hands no like, potty police?” The sug- other together. depo- cuffed As she admitted at (Of sition, gested “piss park.” she fully she understood orders that course, widely resisted: reported, she as had been Q. substance, In sum Zuccotti Park had been turned they were into
telling you your them give open hands? something like an sewer those there; A. Yes. who encamped had been so the Q. substance, might responses In sum be deemed a were
telling you stop resisting? commentary on Brown and the others did, They yes. group. A. should be irony perceive free to from a self- F to (“Dep. Ex. Lucas Decl. of Imani imagined revolutionary against corpo- Brown”), 52:25-53:5. That documented se- begging rate America who was relief quence events is all is needed to But summary Corporation.) Starbucks rude- judgment affirm on the exces- (even claim. sive-force ness or sarcasm excessive rude- sarcasm) force, give information pedigree alone refusal is not let ness or summons, for a force. needed excessive (cid:127) arrest dogged resistance lawful police for not faults the majority provoked by on the had her violation encounter basis resolving the *12 But it Brown’s refus- a the law. summons. that foreclosed identify to herself al summary, police probable In the had majority The thinks the option. that arrest; they cause to were refused identifi- explained why have then police should any could physi- cation that have obviated name, her and assumes they wanted encounter; they applied cal modulated (without basis) “very likely,” that it is at gave warnings force and advance 98, Maj. at that the encounter Op. all the step, treating. each Brown with peacefully resolved itself would have reasonably courtesy suspect a criminal can adequately information been had this physically resisting ask for while arrest. sufficiently But it was communicated. Moreover, encounter, first the entire why police wanted identifi- obvious last, little effect apparently had adverse scarcely cation; have she could Brown, physically psychologically. to send her thought that wanted station, police she arrived at the she When ball. policemen’s to the tickets explicitly medical assistance. refused
(cid:127) that the majority implies The Emergency a Asked member of Brown, held too close to spray was if Medical Services team she wanted technique would call policing that good rinsed, eyes Brown declined. Maj. Op. at distance. See more York Police (citing the New after day Brown was Guide). But at Department Patrol claiming having happily glamor when least the first burst was issued spent night jail a resisting after arrest. holding holding can was the officer friend, In an online chat Brown time, on to Brown at the same so gloated: he not have further distanced could imanii you aiight? Friend: without a selfie stick. spray-can yeah Brown: event, any interpreting In we are not I Brown: was and shit tho maced Guide, Patrol but the Unit- NYPD Constitution, which has
ed States woahh Friend: say optimal dis- nothing to about jusst Friend: u refused to move? tance from which an officer should dis- yes long story Brown: it’s a during a charge pepper spray physical I Brown: resisted arrest Moreover, dis- struggle. first charge was insufficient overcome Supp. Ex. 1 Lucas. Decl. Andrew resistance; eventually sub- second day, friend next another asked her; at precinct dued after- planned protests: if to return ward, opportunity she declined the you going keep protest- Friend: eyes. wash out ing? (cid:127) My colleagues that the whole lament Brown: course if episode could have been avoided the just lay I low going to Brown: that, or used police had done this or tonight Maj. Op. some technique. other yesterday I just Brown: was released surely
98 n. 102. But but-for Brown, am cause of tussle was Glick, regretting going ing but now I’m v.
Brown: Johnson 481 F.2d (2d Cir.1973) J.)). (Friendly, home I want to be out Brown: there! Ill Supp. Decl. of Andrew Lucas. Ex. actively resisted throughout
II
process of her arrest.2 For that reason—
standing
even that reason
alone—the offi
prohibits
“The Fourth Amendment
permitted
cers were
to use force to subdue
unreasonable and
exces
use of
therefore
her, as a matter of law:
“[t]he fact
course
sive force
officer
person
attempts
whom
officer'
effecting an
Freshwa
Tracy
arrest.”
*13
resists,
threatens,
arrest
or assaults the
Cir.2010).
(2d
ter,
90,
In
F.3d
96
623
justifies
officer no doubt
the
use
officer’s
of
particular
whether a
force
deciding
use
degree
of
of
some
force.”
v.
Sullivan
reasonable,
totality
we look to the
of
161,
(2d
Gagnier, 225 F.3d
165-66
Cir.
circumstances, “including
severity
2000) (first
added);
emphasis
see
Tra
also
issue,
suspect
of the crime at
whether the
cy,
(“Tracy
at 97
appeared
623 F.3d
to fail
safety
poses an immediate threat to the
of
comply with
direct order
to in
others,
the officers or
and whether he is
actively
arrest,
stead
resist
thus necessi
resisting
attempting to
actively
arrest or
tating
response.”).
a forceful
Graham,
by
v.
flight.”
evade arrest
Con
nor,
386, 396,
1865, 104
time,
490 U.S.
109 S.Ct.
At the same
resistance
arrest
(1989).
443
L.Ed.2d
Some of those factors
give
“does not
the officer
use
license to
(or not)
case,
helpful
in
might
given
be
Sullivan,
limit.”
force without
F.3d át
225
always
question.is
but
the ultimate
a suspect
166. When
resists
“[t]he
same: “whether the
are
officers’ actions
by
the officer
used
must be reason-
‘objectively reasonable’ in
light of
facts
ably
related
nature of the resistance
confronting
used,
and circumstances
them.” Id.
threatened,
and the force
or reason-
end,
397,
at
tions were reasonable.”
550 U.S. at
jury
No reasonable
could
abuse
find an
383,127
S.Ct.
in
alone
this case-let
misconduct so unrea-
justify
careful to evaluate the record
“personal
liability”
“[W]e
sonable as
perspective
‘from
of a
offi- against
reasonable
Justin
Officer
Naimoli and Officer
scene,
Plevritis, which,
cer on the
rather
than with the Theodore
Court
this
”
hindsight.’
said,
of
Tracy,
vision
623 F.3d has
payable
the officers’ “sav-
20/20
Graham,
396,
at 96
at
(quoting
ings,
equity,
490 U.S.
home
and [their children’s]
“
1865).
push
every
college
109 S.Ct.
‘Not
or
City
funds.” Gonzalez v.
Sche-
of
shove,
(2d Cir.2013).
if may
149,
it
later
unneces- nectady,
even
seem
F.3d
162
728
chambers,’
sary
peace
a judge’s
“likely
of
relies on
majority
what it calls
the Fourth
speculation”
violates
Amendment.” Gra-
that “a payment,
any,
if
will
ham,
at
(quot-
City
490 US.
109 S.Ct.
be
1865
made
after a settlement.”
chat,
by placing
In an online
"I re-
admitted:
handcuffs
her hands
behind
none,
back.”).
Supp.
Ex.
quotes
any
sisted arrest.”
1 to
Decl. of An-
denial
Scare
however, hedges
majority,
resisting
utterly
drew Lucas. The
that Brown was
arrest “is so
point, resorting
quotes.
on that
to scare
See
discredited
record that no reasonable
most,
("At
Scott,
Maj. Op.
jury
at 102
her ‘resistance’
could ... believe
U.S. at
[it].”
550
permit
easy application
was a refusal to
of
Maj. Op.
—“GIVE
HANDS,
YOU’RE GONNA
attitude
OR
YOUR
adopt
cally
appropriately
NOW!
of
PEPPER SPRAYED RIGHT
questions
GET
complete
indifference
settle,
HANDS!”—all of which
likely
(1)
GIVE US YOUR
whether a case
Brown.
as Brown
any, de-
to subdue
And
(2)
arrangements,
if
failed
private
what
she
deposition,
understood
spread
into to
admitted
may have entered
fendants
ruinous)
pepper
warning
of an
that she would be
financial risk
officers’
(potentially
if
not offer
ex-
a second time
she did
majority’s
sprayed
judgment.
civil
adverse
Dep.
this
hands.
Imani
settle
See
will both
pectation that the
(“Q:
you were
indemnify
may
The second time
the officers
54:21-24
and then
case
you
inflicting
the officers warn
danger
sprayed, did
pepper
alleviate somewhat
officers;
hands
you
give
your
if
but
did not
them
on the
personal liability
Yes.”).
standard,
sprayed? A:
you
would be
application
legal
warps
pepper spray
un-
liability
The second burst of
individual
which ceases to be
See,
e.g.,
apparently the measure that worked:
der section 1983.
Ashcroft
arms,
662, 676,
part,
finally offered her
at least
129 S.Ct.
Iqbal,
U.S.
(2009) (“Because
and she
physical pain”
vicarious
she “was
L.Ed.2d
because
*14
pepper
again.”
and
sprayed
“didn’t want to be
liability
inapplicable
is
Bivens
Brown,
suits,
that
56:11-15. Thereaf-
plead
Dep.
must
of Imani
plaintiff
§ 1983
a
defendant,
ter,
only
phys-
minimal
applied
the officers
Government-official
each
ac-
'the
own individual
ical force.
through
official’s
Constitution.”).
tions,
has violated
discretion,
can,
police
in their
resort
The
serious,
force,
non-lethal,
threats of
but
IV
(or
a
stop
yet, prevent)
in order to
better
climax
spray
of
was the
pepper
The use
resisting
But such
suspect from
arrest.
police,
with the
of Brown’s encounter
effective if officers are
only
threat will
be
“Un-
ultimately
resistance.
ended
actually
use
threatened
permitted
of
pepper spray
infliction
questionably,
constitutionally re-
force. We should
variety
incapacitating
an arrestee has a
just
police
off
because
quire
to back
at
Tracy, 623 F.3d
painful
effects.”
physical
lawful arrest encounters stubborn
utility. “[A]s
That is of course its
98.
385-86,
Scott, 550
at
resistance.
U.S.
Cf.
such,
de-
significant
its use constitutes
(“[W]e
lay
down
days jail.” Op. in at 102. But unless Y requires the Constitution to free suspects resisting arrest of- concedes, for minor majority ultimately As fenses, weight this factor is of no in this is no “least there restrictive alternative” case, in the police began by seeking which when “Po- requirement making an arrest: summons, pedigree information for a and must to lice officers be entitled make a physical overcame resistance calibrated reasonable selection among alternative steps, by warnings, preceded gra- without techniques for making Maj. an arrest.” tuitous violence. Certainly, at 103. are not Op. techniques to the
restricted
measures and
obviously
The one
factor that
Graham
to
in
a
suggested
peace
judge’s
us
“the
of
directly applies
and
here is whether the
chambers,” Graham,
396,
109
U.S. at
actively
suspect
resisting
“is
arrest.” Gra-
(internal
quotation
S.Ct.
marks omit- ham,
at
490 U.S.
n dispositive is not though Even this factor the elaborate constitutionalization (none is), strongly it the Graham factors disorderly the routine arrest of individu- supports the use of force here. al, professional the unfair attack officers, that we majority also believes need reputation of two NYPD the ab- excessive jury to decide whether was that has judicial surd waste time ensued ground remand, Brown to the imposi- force to wrestle follow and the will in order to “struggle[] then with her” jurors. tion on the valuable time of (“[A] Maj. at 103 apply Op. handcuffs. See APPENDIX have Fourth jury to decide whether will middle begins The video was exceeded Amendment reasonableness a.m., encounter. Just after 5 at the inter- ground to the after when Brown was taken Broadway in Barclay her section of lower' put her hands behind back refusing Manhattan, standing Brown is on a side- struggled with her on and when officers facing away walk. is pepper spray ac- She a Star- ground and used against coffee shop, leaning fact bucks metal complish handcuffing.”). But the officers, arrest,” scaffolding. Two NYPD Officer it- “actively a suspect resist[s] Justin Naimoli and Officer Theodore Plev- self, response.” a forceful “necessitat[es] her, ritis, working stand behind restrain Tracy, 97. That 623 F.3d at includes her arms. sidewalk, forcefully bringing her necessary ensuing struggle, and more—as bystander: Officer Plevritis shouts to the arrest. effect arrest!” Brown hold- “No! She’s under ing purse phone right a cell her According majority, reason “[n]o pulls right hand. She arm toward appears why, standing, with Brown each body, but Officer Naimoli able simply officer could not held one of have metal her right close handcuffs around her, arms, brought put it behind body Turning degrees wrist. Maj. Op. handcuffs on her wrists.” *16 Plevritis, left, facing now Officer why But the video shows the took yells: just fucking “I to need use ground: give her Brown refused to to slowly body, bathroom!” She unwinds her hands, up grabbed her and instead hold of right, left turning pulls back the and her a scaffolding. the metal structure of In momentarily. arm free Officer Plevritis standing her words: “I was there and own pull reaches to free arm back Brown’s offering my Dep. not them of Ima- arms.” reach, her, telling within in measured Brown, majority ni The 50:13-14. has no “Stop your re- moving Stop tone: arms. ground offering fair for technical advice on Miss, Stop resisting. stop miss. sisting, whether it would have been better and resisting.” pried safer if the had back Brown’s bar, fingers one-by-one resisting. off metal stop Brown does not She any might grabs scaffolding used other forceful method that with free metal her (or officers) down, pre- have exposed to hand. Officer Plevritis reaches any event, sumably pry to her grip different risks. In the relevant loose from scaffold, more, question is whether the use of force was when she twirls once objectively judges degrees right, steps to the back to- reasonable-not whether identify can The Officer Plevritis tells alternative ward Starbucks. methods. you going ground “Alright, her: to reach back hip. for radio on his The growing crowd larger, now.” he calls assis- I tance: “Can have another unit over here pressure to apply Officer Naimoli starts to this location?” Officer Plevritis tries officers, her legs, to the front of while both regain grip arm, his over Brown’s left but her, push standing behind her shoulders wriggles she free again, and rolls over forward, of gravity. well above her center moment, back to the ground. For a brief appears Naimoli unable to take her Officer her Brown tucks free arm back under- ground, to the so winds Officer Plevritis “Miss, body. neath her stop resisting.” swings leg forcefully into up, his doing Brown asks: “What I you?” am physics Brown’s shins. The laws of do forward, body their work: Brown’s rotates The officers their escalate use force: approximate pivot point. yells, it!”, her waist Officer “Stop Plevritis as he instant, parallel For an side- strikes Brown the lower back with his walk, ground. feet off me,” few Then she kick knee. “Don’t she says. Officer falls. See Video at 0:20. Naimoli then makes two sweeping move- arm, ments with his left seemingly trying struggle rolling continues. After dislodge Brown’s grip purse, from her bit, crouch, ground a Brown coils into or her cell phone. phone ends up on ground, leaning knees on the forward. sidewalk, a few away. feet The offi- her Both officers hover over back. Officer to plead cers continue with Brown to com- appears Plevritis to have a grasp solid louder, ply, employing now aggres- more arm, pulls up Brown’s left he it behind “Stop sive tone: resisting! Stop Stop it! her, sharply bent elbow. Brown resisting!”3 half-way springs up then of her out forward, position, crouched and waddles Brown continues to with struggle both holding ground. back officers from the The officers are quiet arms. Brown point, trying at this pull together her hands behind back, but a is gathering, handcuffs, crowd currently hang- someone her so the shouts, “Officers, wrist, off-camera: you ing can right around her can be secured please go? you let please Can let her says, to her left. Officer Naimoli “Don’t officers, unison, go?” Both try sometimes me!” bite It is not clear from the repeatedly whether, give up fact, order Brown to trying* video Brown was hands, and to stop resisting: your “Put anyone, responds, bite but she exasper- han it. Stop Stop resisting, Stop Miss. “I’m trying you!” ated: to bite aFor resisting. Stop resisting. moment’, Stop resisting. Officer Plevritis holds head Stop Stop resisting. Stop ma’am. re- against the sidewalk.
sisting.” (still growing) Members of the crowd *17 radio,
A voice crackles over the and chime in from time to time: “What’s go Officer Plevritis point doing Then, lets of Brown’s sarcastically left this?” arm —which remains free of mocking “Courtesy, handcuffs—to the NYPD’s motto: point, 3. At some briefly the camera ing glass turns on the than some unfortu- —rather Brown's, away struggle identity: from the to a nate victim friend of of mistaken happened who describes what in the mo- She wanted to use the bathroom at Star- preceding commentary door, ments the arrest. His banging bucks. She was on the ask- largely is irrelevant to the ing excessive force them to use their and let discretion her claim, go long bathroom, way confirming but it does go to to the and called the her____ bang- that Brown was one of individuals on knees, continues the From her Brown Professionalism, Officer Nai- Respect!” motion. hands remain rocking she’s Her ‘Yep, giving in kind: responds moli her, right wrist cuffs. front of her respect.” us her “Stop it! again: Officer Plevritis shouts continues, says and Brown struggle not ground!” Brown does com- Get on to just trying pull something like “I’m Plevritis, standing in now ply. Officer rise a kneel- tries to to my ... ”—then she Brown, gon- front her: ‘You are of- warns her back The officers wrestle ing position. get again.” Brown’s behavior na But lets out brief and Brown ground, to the change, and Plevritis does not Officer trying to pull Plevritis is Officer whimper. spray a second sprays pepper her .with back, Brown her but arm behind left face, time, than a again in the for less securely underneath planted has it second, to from a distance that difficult intensity raise the and body. The officers (no more than one discern from the video voices once more: of their the volume foot). at 2:12. The' officers See Video “STOP RESISTING!” your to behind continue shout: “Put hands resisting. She con- stop Brown does Put your back! STOP RESISTING! The officers then struggle. tinues your back!” your hands behind level of threaten escalate Finally, appears Brown to relent. loudly: again, shouting now “GIVE US shouts, guys off-camera: “You Someone HANDS, GONNA YOUR OR YOU’RE last, At fucking cowards!” the officers SPRAYED RIGHT NOW! GET PEPPER wrist. the handcuffs on Brown’s left secure at See Video GIVE US YOUR HANDS!” 1:36. camera, appear ap- Two new officers just having arrived the scene. parently up her hands. She give
Brown does not at loudly repeatedly shouts One for the next 8 or 9 struggle continues opera- camera bystanders (including the Officer Plevritis time it takes seconds—the tor) to move is doubled over back. Brown unholster his to reach back and shouts, presumably to on her knees. She face, in the from spray. sprays He Brown you pull my skirt please the officers: “Can one second. away, about a foot about flashing fucking I’m not street down so at See Video 1:48. officers tells Brown please?” One moment, appears Brown to be For a that,” thought of that she “should have ground. Her skirt off- going back to up.” refuses orders her to “stand kilter; briefly exposed buttocks bare “No!”, she from the cooperate: shouts off-cam- gathering crowd. Someone and Plevritis ground. Officers Naimoli (inaudible) to which question, era asks position, forcibly pull standing and frus- responds, Plevritis loud Officer handcuffed, her, securely now walk her hands be- putting “How about trated: Another officer is nearby police cruiser. then hind her back?!” Brown starts nearby onlookers: shouting still knees, from her rocking back forth Plevritis back! Move Officer “Get back!” tighter around pulls the crowd Brown to in the car” and to “get orders trio. Plevritis reacts struggling Officer ear,” appears “sit down in the as she feet, go, to his letting springing Offi- upper body out of the door. lean her away yelling at the crowd: “Get seat, back into cer Plevritis forces her *18 up! Ev- up! up! here! Back Back Back and secures the door. eryone up!” Naimoli now back Officer moment, and skips ahead a footage restraint attempted alone his out the car Officers (still-struggling) Brown is lead Brown.
H3 Naimoli, while at least three Plevritis (still
other officers look on at the same
interséction). For reasons that are not
clear, the handcuffs remain attached to wrist, right they dangle but now
Brown’s left hand free again.
alone—her Officer “step
Plevritis asks her to out and turn
around.” Officer “step Naimoli tells her to put your
out of car and hands behind time,
her back.” This Brown turns around objection, and
without offers her hands to
be re-handcuffed. Officer Plevritis ex- you this,
plains: “Now if would have done
you gotten sprayed.” wouldn’t have handcuffs, again,
officers secure returned, quietly,
Brown is to the back
seat of the car. FUNDS,
CERTAIN ACCOUNTS INVESTMENT VEHICLES
AND/OR
Managed by In Affiliates Fortress Group L.L.C., Plaintiffs-Ap
vestment
pellants,
KPMG, L.L.P., KPMG International Co
operative, PricewaterhouseCoopers
L.L.P., PricewaterhouseCoopers Inter Limited, Defendants-Appell
national
ees.*
Docket No. 14-2838. of Appeals,
United States Court
Second Circuit.
Argued: June Aug.
Decided: * respectfully The Clerk of caption the Court is directed above. change caption the official to conform to