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Improper Pleading Results in Appeal; Occupy Wall Street Case Remanded for Excessive Force Claim


Plaintiff Shamir was part of the Occupy Wall Street Protests. He engaged in sleepful protest: one where he intended on sleeping parallel to the curb of Centre Street in NYC. At some point he was told to move it along by the NYPD. As he did, he went up to the police and called one a thug and "may have yelled" at the officer. In return, Shamir was handcuffed with zip-tie plastic cuffs. Because "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." After suffering injuries as a result of the handcuffing, Shamir filed suit and submitted to a Gen. Mun. Law. 50(h) hearing. This case was brought and the city moved to dismiss. Procedurally, the motion to dismiss was converted to a motion for summary judgment, which was granted in favor of the Defendants.

Second Circuit Judge Jon O. Newman detailed "the peril counsel faces by lack of precision in stating the nature of the claims being asserted" when reviewing the appeal of Defendant New York City's Summary Judgment Motion. In doing so the Circuit Judge held that this "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."

The Court noted that "[i]t 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."

Law: [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.]

Here Shamir testified as to the tight handcuffing with zip-ties, his hands turning blue and several visits to doctors/hospitals. In addition to finding that there could be a claim for excessive force, the Circuit Court finds that the False Arrest should have been dismissed but on different grounds: When the Officer told him to disperse, Shamir called him a thug. "That approach to the officer is the antithesis of complying with an order to disperse." Accordingly, the Police had Probable Cause to arrest on the basis of disorderly conduct.

Conclusion: "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."

The Case is Shamir v. City of New York, 14-3606 (October 22, 2015).

#SecondCircuit #FreeSpeech #Protest #OccupyWallStreet #FourthAmendment #4thAmendment #1983Litigatio #ExcessiveForce

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