If you've got it plead it

A badly written complaint can come back and bite you in the tuchus. This police misconduct case did not plead an excessive force claim, only a false arrest claim. The Court of Appeals says the plaintiff has no claim for false arrest, but he does have a claim for excessive force. Huh?

The case is Shamir v. City of New York, decided on October 22. Plaintiff went to an Occupy Wall Street demonstration in 2012 when he partook in civil disobedience by sleeping on the sidewalk in a sleeping bag. The police told him to disperse, and he did so. Shortly afterwards, having put his sleeping bag on a bench a few feet away, the police began to crowd around the people who stayed on the ground. Plaintiff called one of the police officers a "thug." An officer then placed plaintiff in too-tight handcuffs, which hurt like the devil and resulted in a hospital visit that left him with a splint on his hand. The lawsuit plead claims for false arrest and "freedom from unreasonable searches and seizures of his person, under the Fourth and Fourteenth Amendments."

Plaintiff did not explicitly set forth a claim for excessive force, and the Court of Appeals (Newman, Walker and Jacobs) is not happy about, repeatedly chastising plaintiff's lawyer over this omission. But it says the complaint could be read to assert an excessive force claim, as the "search and seizure" language suggests that is what the lawyer intended, and that language has some connection to Supreme Court language on excessive force claims. Or course, things could have been much clearer. The Court "reluctantly infer[s]" such a claim.

And such a claim for too-tight handcuffs does exist under the Fourth Amendment. The Second Circuit cites rulings from other circuits in stating that "several decisions have recognized that excessively tight handcuffing that causes injury can constitute excessive force in violation of the Fourth Amendment." The excessive force claims survives.

But there is no false arrest claim. Plaintiff was arrested for ignoring an order to disperse. As plaintiff "'went up to one of the police officers' and called him a thug," that 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 disperse provided probable cause to arrest."