Shamir v. City of New York , 804 F.3d 553 ( 2015 )

14-3606
Shamir v. City of New York
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2015
Heard: August 24, 2015 Decided: October 22, 2015
Docket No. 14-3606
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RAMI SHAMIR,
Plaintiff-Appellant,
v.
CITY OF NEW YORK, JOHN DOE, NYPCO Lieutenant,
in their individual capacities, ROBERT MURRAY,
NYCPD Lieutenant, in their individual capacities,
Defendants-Appellees.
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Before: NEWMAN, WALKER, and JACOBS, Circuit Judges.
Appeal from the August 27, 2014, judgment of the United
States District Court for the Southern District of New York
(Colleen McMahon, District Judge), dismissing on motion for
summary judgment complaint presenting claims for false
arrest, retaliatory arrest, and use of excessive force.
Affirmed as to dismissal of claims for false arrest and
retaliatory arrest, reversed as to dismissal of claim for
use of excessive force, and remanded.
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David B. Rankin, Rankin & Taylor,
PLLC, New York, NY (Robert M.
Quackenbush, Rankin & Taylor,
PLLC, New York, NY, on the
brief), for Appellant.
Fay Sue Ng, Asst. Corp. Counsel,
New York, NY (Zachary W.
Carter, Corp. Counsel of the
City of New York, Pamela Seider
Dolgow, Asst. Corp. Counsel,
New York, NY, on the brief),
for Appellees City of New York
and Robert Murray.
JON O. NEWMAN, Circuit Judge.
This appeal from the dismissal of a civil rights
complaint under 42 U.S.C. § 1983 concerns claims for false
arrest and use of excessive force and illustrates the peril
counsel faces by lack of precision in stating the nature of
the claims being asserted. Rami Shamir appeals from the
August 27, 2014, judgment of the District Court for the
Southern District of New York (Colleen McMahon, District
Judge), dismissing, on motion for summary judgment, his
complaint against the City of New York, Police Lieutenant
Robert Murray, and an unnamed police officer. We conclude
that the complaint was properly dismissed to the extent that
it alleged claims of false arrest and retaliatory arrest,
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and, with considerable reluctance, also conclude that the
woefully pleaded claim for use of excessive force must be
remanded for further proceedings, despite the District
Court’s justifiable misunderstanding that this claim was
either not pleaded or not being pursued.
Background
Facts of the episode. The facts, which are assumed to
be true for purposes of the Defendants’ motion for summary
judgment on the ground of qualified immunity, see Salim v.
Proulx, 93 F.3d 86, 90 (2d Cir. 1996), are taken from the
complaint and the plaintiff’s testimony at a civilian
complaint hearing pursuant to Gen. Mun. Law § 50-h (McKinney
2014). On September 15, 2012, Shamir was attending an
Occupy Wall Street demonstration near City Hall Park in
lower Manhattan with twenty others. He was participating
“in a form of civil disobedience,” which he characterized as
“using sleepful protest.” Shamir testified that on the
sidewalk of Centre Street he “took out [his] sleeping bag
and laid it down on the floor.” His sleeping bag was
“parallel to the curb.” When asked whether he “was
intending to sleep there?” he answered, “Yes.” He contended
that “none of the sidewalk was . . . infringed by [his]
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sleeping bag,” but added that the sidewalk was “part of the
concrete that leads from the curb to about maybe one or two
feet from the fence to the park,” and that he was “probably
one or two feet away from the fence.”
He acknowledged that police officers “said that we had
to, you know, move.” He added, “I don’t know if it was an
order to disperse, but, you know, something maybe along
those lines.” His complaint acknowledges that “(a)
member(s) of the NYPD gave what appeared to be an order to
disperse.” The complaint also alleges that Shamir “complied
with police orders by leaving moving [sic] from where he was
located.”
Within less than half an hour several more police
officers arrived at the scene. According to Shamir, “[w]hen
we were given . . . what I understood as a definite order to
disperse, I got up and took my sleeping bag” and “put it on
the bench . . . a couple of feet [away].” Then, Shamir
testified, “As the police officers began to crowd around the
people who had remained on the ground, . . . I went up to
one of the police officers and I told him that he’s a thug,”
and “I may have yelled at them.” Shamir was then arrested.
Police Officer Rodriguez (presumably the “Doe”
defendant in the complaint) handcuffed Shamir using “zip-tie
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handcuffs.” Shamir complained that the handcuffs were
“really . . . tight” and “really hurt.” Shamir repeatedly
asked that the handcuffs be loosened, but his requests were
denied. He was taken to a precinct, where he showed police
officers his hands which, he testified, were “really
discolored,” “really swollen,” and “really . . . blue.”
After being released from police custody, Shamir went to
Lenox Hill Hospital, where a doctor gave him pain medicine
and put a splint on his right hand. He wore the splint for
two weeks. He consulted a hand specialist. His pain became
worse. As of the day of the hearing, nearly nine months
after the arrest, he could not completely move the thumb of
his right hand.
Shamir was arraigned more than 24 hours after his
arrest on a charge of unlawful camping in violation of 56
RCNY 1-04(p). The charge was later dismissed.
District Court proceedings. Shamir filed a complaint
against Lt. Murray, police officer “Doe,” and the City of
New York, alleging federal claims under 42 U.S.C. § 1983 and
pendent state law claims. Because a principal issue on this
appeal concerns what federal claims Shamir sought to plead,
we set forth the relevant language from paragraph 28 of the
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complaint that alleges the “freedoms” allegedly denied in
violation of the Constitution:
“a. freedom from unreasonable searches and
seizures of his person, under the Fourth and
Fourteenth Amendments,
“b. freedom from arrest without probable cause,
under the Fourth and Fourteenth Amendments.”
In this Court, Shamir contends that paragraph (a),
understood in light of the factual allegations of the
complaint, pleads a claim of excessive force in the course
of his arrest, based on the tightness of the handcuffs and
the refusal to loosen them despite his repeated requests.
The Defendants moved to dismiss the complaint, pursuant
to Fed. R. Civ. P. 12(b)(6), solely on the ground that the
police officers were entitled to qualified immunity with
respect to the claim for false arrest. In a supporting
memorandum they contended that probable cause existed to
arrest Shamir for camping in a park, in violation of 56 RCNY
§ 1-04(p), and for disorderly conduct by failing to obey an
order to disperse, in violation of N.Y. Penal Law 240.20(6).
Neither their motion to dismiss nor their memorandum in
support of the motion made any reference to a claim of
excessive force.
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Shamir’s memorandum in opposition to the motion to
dismiss also made no reference to a claim of excessive
force. His counsel filed a “declaration” attaching the
transcript of Shamir’s testimony at the section 50-h hearing
and withdrawing Shamir’s claim against the City of New York.
With that transcript before the Court, the Defendants then
moved to amend their motion to dismiss to become a motion
for summary judgment pursuant to Fed. R. Civ. P. 56, a
request that the District Court granted.
Shamir’s counsel then filed a “declaration” that
included the following: “Further, based upon a review of
defendant's motion, they did not move to dismiss the
complaint on ‘Fourth Amendment - Excessive Force’ grounds.
They only moved to dismiss based upon probable cause.”
The Defendants filed a memorandum in support of the
converted motion for summary judgment, renewing their claim
for qualified immunity with respect to the arrest of Shamir
and again not mentioning a claim of excessive force.
The District Court granted the Defendants’ motion for
summary judgment. The Court stated, “Plaintiff admitted in
his 50-h testimony that he stopped in the park, took out his
sleeping bag, laid it on the ‘floor’ and sat on its with the
intention of spending the night there.” This admission, the
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Court ruled, established probable cause, or at least the
“arguable probable cause” that sufficed for qualified
immunity. The Court’s opinion made no reference to a clam
of excessive force.
Discussion
I. Excessive Force
On appeal, Shamir contends that a remand is required
for adjudication of what he asserts is a claim of use of
excessive force in the course of his arrest. It is entirely
understandable that the District Court did not adjudicate an
alleged claim of excessive force. Nowhere in the complaint
is there an explicit claim that excessive force was used in
the course of Shamir’s arrest. There is no excuse for his
lawyer’s failure to state such a claim in plain language.
Nevertheless, we feel obliged, with apologies to the
District Court, to infer the pleading of an excessive force
claim from the clues lurking beneath the inartful wording of
the complaint.
As noted above, paragraph 28 sets forth two separate
ways that the police officers deprived Shamir of his
constitutional rights. Subparagraph 28(a) alleges
deprivation of the “freedom from unreasonable searches and
seizures of his person.” Because the complaint’s
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allegations of facts do not mention any search of Shamir’s
person, this subparagraph is fairly read to allege only an
unreasonable seizure of his person. Read in isolation, the
subparagraph could be understood to allege an arrest without
probable cause. However, subparagraph 28(b) alleges
deprivation of the “freedom from arrest without probable
cause.” The existence of that subparagraph implies that
paragraph 28(a), unless it is redundant, is endeavoring to
allege a deprivation of a constitutional right other than
freedom from an unlawful arrest.
An arguable identification of that other right can be
inferred from the phrase “unreasonable . . . seizure of the
person,” coupled with the Supreme Court’s analysis of claims
that law enforcement officers used excessive force in the
course of an arrest. “Such claims,” the Court stated in
Graham v. Connor, 490 U.S. 386, 388 (1989), “are properly
analyzed under the Fourth Amendment’s ‘objective
reasonableness’ standard.” Thus, the use of excessive force
renders a seizure of the person unreasonable and for that
reason violates the Fourth Amendment.
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
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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. In addition, Shamir’s lawyer submitted, albeit
as an afterthought, a “declaration” pointing out that the
Defendants “did not move to dismiss the complaint on ‘Fourth
Amendment - Excessive Force’ grounds. They only moved to
dismiss based upon probable cause.” Of course, there was no
excuse for omitting, from the memorandum opposing the
Defendants’ motion to dismiss, the Plaintiff’s argument that
the Defendants’ motion ignored the alleged excessive force
claim, which, on the Plaintiff’s theory, would have defeated
dismissal of the entire complaint, even if qualified
immunity warranted dismissal of the false arrest claim.
With an excessive force claim reluctantly inferred from
Paragraph 28(a) of the complaint, there 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. See, e.g., Vondrak v. City of Las
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Cruces, 535 F.3d 1198, 1208-09 (10th Cir. 2008); Lyons v.
City of Xenia, 417 F.3d 565, 575-76 (6th Cir. 2005); Hanig
v. Lee, 415 F.3d 822, 824 (8th Cir. 2005).
II. False Arrest
We agree that the Defendants are entitled to qualified
immunity as a defense to the claim of false arrest, but for
reasons different than those articulated by the District
Court. The District Court ruled that the police officers
had probable cause, or at least “arguable probable cause,”
Zalaski v. City of Hartford, 723 F.3d 382, 390 (2d Cir.
2013), sufficient for qualified immunity, to arrest Shamir
for camping in the park. The Court relied on the fact that
Shamir was observed placing his sleeping bag on the sidewalk
next to the fence surrounding City Hall Park and his
testimony at the 50-h hearing that he intended to sleep
there as a protest.
Probable cause is determined on the basis of facts
“known to the arresting officer at the time of the arrest,”
Devenpeck v. Alford, 543 U.S. 146, 152 (2004); see Lowth v.
Town of Cheektowaga, 82 F.3d 563, 569 (2d Cir. 1996). What
Shamir admitted several months after his arrest cannot be
used to show what the officers knew at the time of the
arrest. Because the record is not fully developed at this stage
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of the proceeding, the District Court did not have testimony from
any of the officers confirming that at least one of them saw
Shamir sitting on his sleeping bag and then had reason to believe
that he intended to sleep in an area covered by park
regulations.1 Accordingly, although we need not express an
opinion about whether Judge McMahon was entitled to conclude that
there was at least arguable probable cause to arrest Shamir for
illegal camping, we affirm dismissal of the false arrest claim on
an alternate ground.
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
1
It is undisputed that under the New York City Charter
park rules and regulations are enforceable “within any park
. . . or within a distance of three hundred fifty feet from
the outer boundaries thereof.” Ch. 21, § 533(a)(5) (2013).
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disperse provided probable cause to arrest. An officer’s
motivation is irrelevant to the Fourth Amendment validity of
an arrest. See Whren v. United States, 517 U.S. 806, 813
(1996).
Conclusion
The judgment is affirmed to the extent that the claims
for false arrest and retaliatory arrest were dismissed, and
reversed and remanded with respect to the claim of excessive
force in making an arrest. Because this appeal could have
been avoided by proper pleading, no costs are awarded.
Reversed in part and remanded.
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