Videotape kills off disputed excessive force claim

There was no YouTube when the Constitution was created. And there were no cell phones when the federal courts first recognized a cause of action for excessive force in violation of the Fourth Amendment. The courts change with the times, though, which is why the Supreme Court in 2007 said that trial courts may credit video evidence on motions for summary judgment in excessive force claims.

The case is Kalfus v. City of New York, a summary order issued on April 13. In the old days, excessive force cases could easily go to trial on the say-so of the plaintiff if he testified that the officers beat the hell out of him, no matter what the police officers said. But if a video camera or even someone's cell phone happens to catch the dispute, then the court can see what happened and resolve the case on summary judgment.

In this case, Kalfus was a freelance photographer for the New York Post who hung around New York Presbyterian Hospital hoping to photograph Joe Torre, who was visiting his brother Frank Torre, who was getting a kidney transplant. Frank and Joe Torre both played major league baseball. Anyway, a hospital security offer told Kalfus to leave because he was on private property.

The district court summarized the competing stories in a way that would have probably resulted in a trial based on disputed factual issues: "The parties have differing perspectives regarding what occurred during the escort of Plaintiff to the SCC. The video, from a variety of security cameras, depicts the Officers behind Kalfus leading him to the SCC. The Officers contend that Plaintiff was insubordinate, and that by struggling and resisting, Plaintiff made the walk unnecessarily difficult. Plaintiff, on the other hand, asserts that he never resisted; and on the contrary, that he feared for his safety because he did not know where he was being led and because the officers were pulling him in different directions. The audio contains what might be characterized as "shrieks" and "screams" from Kalfus while being escorted to the SCC."


Here's how the Court of Appeals (Sack, Droney and Raggi) sees it:

Kalfus was again told by hospital patrolmen to leave hospital property. He refused, repeatedly making snide and sarcastic statements, and threatening legal action. The patrolmen then sought to arrest Kalfus for trespass, and to restrain him by handcuffing his hands behind his back. Kalfus attempted to evade handcuffing. He did not attempt to flee.

The patrolmen pushed Kalfus on to his stomach in order to handcuff him, which they then did by pulling his arms up behind his back. They then stood him up and walked him across the street to another building, where the main hospital security office was located. Eventually Kalfus was handed over to the New York City police.

The Court of Appeals affirms summary judgment. A security video caught the entire encounter. At page 6 of the ruling, the Court of Appeals links to the video, embedded on its website for us to see for ourselves. I don't think the Second Circuit has done this before. The confrontation starts at around 2:30. It looks like the police have to take Kalfus down twice. The Court says, "[t]he video further shows that to effect the arrest, officers turned Kalfus onto his stomach, pulled his arms behind his back, placed handcuffs on him, and lifted him onto his feet by pulling on his upper arms, sweatshirt, and waist. No reasonable factfinder could conclude that such actions were excessive in the circumstances." Take a look at the video.