On August 19, 2015, the Second Circuit Court of Appeals decided Brown v. City of New York et al. [i], which is instructive regarding the law pertaining to false arrest and excessive force under the Fourth Amendment. The relevant facts of Brown, taken directly from the case, are as follows:
On the night of November 15, 2011, an Occupy Wall Street crowd gathered in Zuccotti Park in lower Manhattan. Brown received a text message saying that the park had been raided. She went to observe around 2 a.m. and left around 5 a.m. to find a bathroom. Two blocks away, she came to a Starbucks store and spoke to an employee who told her that the store was closed but would open at 5:30, which was 15 or 20 minutes later. She remained on the sidewalk, intending to wait until the store opened.
That night Officers Naimoli and Plevritis were working the 11:15 p.m. to 7:50 a.m. shift. They drove by Zuccotti Park as the crowd was being cleared. They arrested a man who was blocking traffic and after taking him to Central Booking resumed their patrol around 4 a.m.
At 5:05 a.m., an assistant manager of the Starbucks store called 911 and reported six people knocking on the door of his closed store, trying to get in to use the bathroom. He said that they were “knocking on the door really really bad trying to get in,” and “making nasty comments.” Defendants’ Statement of Undisputed Facts, ¶ 21. The 911 operator heard the assistant manager tell an employee to lock the bathroom door from the outside because he heard “banging on the doors . . . [t]he outside doors.” Exhibit 16 (911 call transcript). A radio dispatcher immediately relayed the substance of the 911 call to Officers Naimoli and Plevritis, stating in part, “[S]ix people banging on the doors refusing to leave at Starbucks coffee.” Hearing the transmission, Naimoli and Plevritis drove to the store location, arriving there within minutes of the 911 call.
From this point on, most of the facts, as recounted in depositions and testimony at a civilian complaint hearing, are in dispute. We continue with Brown’s version. When the officers arrived, only she and two other persons were waiting near the Starbucks store. Brown approached the police car, gestured to have the window rolled down, and spoke to the officers through the passenger side front window. Brown asked if the officers knew where she could find a bathroom.
One officer answered her question with a question of his own, “What do we look like, the potty police?” Brown asked her question again. One officer answered that Brown should “piss in the park.” Brown asked whether that would be illegal and was told that it would be. Brown then said, “[S]o you are just not going to help me, you don’t have anything you can offer me, any advice you can offer?” One officer, still in the police car, then told Brown that she “should go home.” She responded that she lived over an hour away and preferred to wait until the Starbucks opened.
As Brown walked away from the police car, the officers got out of the police car and asked for her ID. She repeatedly asked why they wanted it, they gave no explanation, and she refused to provide any ID. As Officer Plevritis acknowledged in his deposition, he then grabbed Brown and said to her, “[G]ive me your identification or you’re going to be placed under arrest.” When she again refused, he told her, “You’re under arrest.” Brown repeatedly asked why she was being arrested but received no explanation. One or both of the officers then grabbed her arm, held it behind her back, and attempted to apply handcuffs. An officer kicked her legs out from under her, and she fell to her knees. A videotape shows that handcuffs had been placed on one of Brown’s wrists before she was thrown to the ground. On the ground, Brown reached with her other arm for her phone, wallet, and scattered contents of her purse.
The videotape shows both officers on the ground, endeavoring to bring her free arm behind her in order to complete the handcuffing. The videotape shows a struggle with considerable shouting by Brown, the officers, and a bystander.
Officer Plevritis administered a burst of pepper spray directly to Brown’s face. When Brown realized her skirt had come up and “that [her] bottom was exposed,”, she ask if the officers could pull her skirt down. They prudently declined, one of them answering, “No, it wouldn’t have been like that, if you weren’t causing trouble.” When asked what she then did, Brown said she was “reaching with my free arm trying to pull my skirt down.” As the struggle to handcuff Brown continued, Officer Plevritis administered a second burst of pepper spray directly in her face from a distance of one foot.
The officers then completed the handcuffing, raised Brown to her feet, placed her in the police car, and drove her to a police station. [ii]
Later, the criminal case against Brown was dismissed, and she filed suit in federal court alleging that the officers violated her rights under the Fourth Amendment to be free from an unlawful arrest and excessive force. She also alleged that the officer violated her rights under the First Amendment because she had been part of a protest in a park. The district court granted summary judgment for the officers and dismissed the suit. Brown appealed to the Second Circuit Court of Appeals.
The court first examined the false arrest claim which is an allegation that the officers arrested the Plaintiff without probable cause.
Brown was charged with disorderly conduct for refusing to disperse when ordered by officers. However, the court noted that evidence was lacking that the officers ever ordered her to leave the area, which is required by the code section. However, the court also noted that, viewed objectively, the undisputed facts support probable cause to believe that Brown violated a either of two other subsections of the disorderly conduct statute, specifically a subsection that makes it unlawful to “with intent to cause public annoyance or recklessly creating a risk thereof he engages in tumultuous behavior or makes unreasonable noise.” [iii]
The court of appeals discussed the fact that the officers charged Brown with the wrong offense. The court stated:
[I]t does not matter that the officers arrested for violation of subsection 6 of the disorderly conduct provision, punishing failure to disperse. “‘[T]he probable cause inquiry is not necessarily based upon the offense actually invoked by the arresting officer but upon whether the facts known at the time of the arrest objectively provided probable cause to arrest.'” Jaegly v. Couch, 439 F.3d 149, 153 (2d Cir. 2006) (quoting United States v. Jones, 432 F.3d 34, 41 (1st Cir. 2005)). [iv] [emphasis added]
The court also addressed the fact that officers can build probable cause based upon the collective knowledge of other law enforcement officials. The court noted that the 911 dispatcher received a call from the Starbucks manager that a crowd of six people were knocking on the door very loud and making “nasty comments.” They were yelling about using the bathroom. The banging was such that the manager instructed employees to lock the doors. Thus, when the officer arrived at the store in response to the dispatch within minutes of the call, and saw three people still outside the store and Brown asking about the bathroom, the officers then had a reasonable basis to believe that Brown was one of the people committing disorderly conduct.
The court further stated that even if the above facts did not provide actual probable cause to make an arrest:
[I]t was “objectively reasonable for the officers to believe that probable cause existed,” and “officers of reasonable competence could disagree on whether the probable cause test was met.” Golino v. Ciy of New Haven, 950 F.3d 864, 870 (2d Cir. 1991). Those circumstances entitled the arresting officers to the defense of qualified immunity. Id. [v]
In other words, if some reasonable officers confronted with the above facts would conclude probable cause was present, even if it was not, then the officers are still entitled to qualified immunity as the mistake would be reasonable. Some federal circuits call this “arguable probable cause.”
Therefore, the court affirmed the grant of qualified immunity and summary judgment to the officers on the false arrest claim.
Next, the court addressed the Fourth Amendment excessive force claim. The court noted that, in Graham v. Connor, the United States Supreme Court stated that evaluating an excessive force claim requires the court to consider three factors which are as follows:
- The severity of the crime at issue;
- Whether the suspect poses an immediate threat to the safety of the officer or others; and
- Whether the suspect is actively resisting arrest or attempting to evade arrest by flight. [vi]
The court then noted that much of the relevant facts regarding the use of force against Brown are not disputed. The facts were outlined by the court as follows:
- Officers Plevritis and Naimoli were arresting Brown for disorderly conduct, a violation that; under New York law, is subject to a maximum punishment of 15 days in jail.
- Officer Plevritis was 5′ 10″ and weighed 215 pounds; Officer Naimoli was 5′ 7″ and weighed 150-160 pounds; Brown was 5′ 6″ and weighed 120 pounds.
- Officer Plevritis asked Brown to place her hands behind her back so that they could apply handcuffs, and she refused to do so.
- One of the officers kicked Brown’s legs out from under her, causing her to fall to the ground.
- One officer succeeded in placing handcuffs on Brown’s right wrist.
- Both officers struggled with Brown, forcing her body to the ground.
- Officer Plevritis used his hand to push Brown’s face onto the pavement.
- Brown’s left arm, without a handcuff, was under her as she fell to the ground.
- The officers endeavored to take hold of Brown’s left arm and bring it behind her to complete the handcuffing.
- While on the ground, Brown did not offer her arms for handcuffing in part because she was trying to keep hold of her phone and wallet and reach for the scattered contents of her purse.
- Officer Plevritis twice administered a burst of pepper spray directly to Brown’s face.
- The officers completed the handcuffing while Brown was still on the ground.
- Officer Naimoli was aware of techniques for applying handcuffs to a reluctant arrestee, other than taking a person to the ground.
The relevant disputed facts are:
- Brown says the pepper spray was administered one foot away from her face; Officer Plevritis says the first dose was from two feet away and the second dose from three feet away. It is undisputed that the policy of the New York City Police Department instructs officers not to use pepper spray closer than three feet. See New York City Police Department Patrol Guide, Procedure No. 212-95 (Jan. 1, 2000).
- Brown contends that she was trying to use her free arm to pull down her skirt, which was exposing her behind. [vii]
The court then sought to apply the relevant facts above to the three factors from Graham v. Connor. In its analysis, the court stated:
In this case, the severity of the crime is unquestionably slight. The disorderly conduct offense is subject to a maximum penalty of fifteen days in jail, and the underlying facts, even as alleged by the officers, are loud banging on the door of a closed store by someone wanting to use a bathroom, plus the use of loud and nasty language. With respect to the second Graham factor, Brown posed no threat whatever to the safety of the officers or others. As for actively resisting arrest, Brown was not fleeing, cf. Garner v. Tennessee, 471 U.S. 1, 6-8 (1985), nor physically attacking an officer, cf. Sullivan v. Gagnier, 225 F.3d 161, 163 (2d Cir. 2000), nor even making a move that an officer could reasonably interpret as threatening an attack, cf. Tracy v. Freshwater, 623 F.3d 90, 97 (2d Cir. 2010). At most, her “resistance” was a refusal to permit the easy application of handcuffs by placing her hands behind her back. An aggregate assessment of all three relevant Graham factors would seem to point toward a determination of excessive force and, at a minimum, to preclude a ruling against the victim on a motion for summary judgment. [viii] [emphasis added]
Therefore, the court held that the facts were sufficient to allow a reasonable jury to conclude that the officers committed excessive force in this case. As such, qualified immunity and summary judgment are not appropriate. Rather the case should be allowed to be heard by a jury to determine whether the officers committed excessive force.
Lastly, the court dismissed the First Amendment retaliation claim for lack of any evidence to support that claim.
Important Points from this case:
- Qualified immunity protects officers in Fourth Amendment false arrest suits if there is probable cause to arrest the suspect/plaintiff for any offense, even if the officer did not charge the suspect with that offense.
- Qualified immunity protects the officers even if actual probable cause does not exist as long as some reasonable officers in the same situation would have believed probable cause was present; this is often called “arguable probable cause.” Thus, if the officer makes a reasonable mistake as to the existence of probable cause he is still entitled to qualified immunity.
- Officers should be trained on and consider the three factors from Graham v. Connor with regard to use of force. The three factors are as follows:
- The severity of the crime at issue;
- Whether the suspect poses an immediate threat to the officer or others;
- Whether the suspect is actively resisting arrest or attempting to evade arrest by flight.
- Officers should also document facts to support the factors from Graham v. Connor in their incident reports.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] No. 14-2611 (2nd Cir. Decided August 19, 2015)
[ii] Id. at 3-7
[iii] Id. at 12 (citing N.Y. Penal Law Section 240.20)
[v] Id. at 14
[vi] Id. at 16 (quoting Graham v. Connor, 490 U.S. 386, 395 (1989))
[vii] Id. at 17-18
[viii] Id. at 19-20