Occupy Wall Street plaintiff loses excessive force case on qualified immunity grounds

This police misconduct reaches the Second Circuit for the second time. The first time around, the Court said the plaintiff had identified an issue of triable fact on the issue of whether the police officers had used excessive force in trying to arrest her after she was on the ground outside a Starbucks during an Occupy Wall Street demonstration. This time around, the plaintiff argues that the trial court on remand violated the Second Circuit's mandate in granting the officers' motion for qualified immunity.

The case is Brown v. City of New York, decided on July 5. My write-up on the first appeal is at this link. This is how I summarized the facts:

Brown tried to enter Starbucks because she had to go to the bathroom. The Starbucks was closed, and an employee called the police because a noisy crowd, bladders a-bursting, was pounding on the door. When the officers arrived, they asked plaintiff for her identification without explanation, which she declined to provide. The officers then arrested Brown, and after she resisted the handcuffs, they took her to the ground, where she continued to resist until the officers pepper-sprayed her twice. At that point, she was cuffed and taken to the police station.

This episode was videotaped, and Judge Jacobs dissented, finding that no jury could rule in plaintiff's favor in light of her resistance to police authority. Anyway, the majority specifically remanded this case "for trial." But on remand, the trial court then entertained the officers' motion for summary judgment on qualified immunity.You did not think the City law department would just allow the case to go to trial without a fight, did you? The trial court granted the qualified immunity motion, finding that the officers' actions were objectively reasonable. The Second Circuit is OK with this, holding that trial courts have discretion to manage their dockets as they see fit, including resolving dispositive motions. While the trial court was not free to entertain another motion for summary judgment on whether the officers used excessive force in arresting plaintiff (as such a maneuver would violate the mandate), "it was not constrained from considering a second summary judgment motion raising the issue of whether the Section 1983 excessive force claims were defeated by qualified immunity, and issue that [the prior appeal) never decided."

Some other procedural issues also arise in this appeal. Plaintiff says defendants waived the qualified immunity defense because they barely mentioned it in their summary judgment motion prior to the last appeal and they did not raise it in the last appeal. That is not waiver, the Second Circuit (Jacobs, Droney and Stanceu [D.J.]) holds. Trial courts have discretion to resolve issues that might have been waived, and in this case, the defendants did raise the qualified immunity defense in their answer and they also raised it in their first summary judgment motion, even if they did so in passing. While the officers did not raise that issue in the first appeal, as every appellate practitioner knows, the Second Circuit can decide whatever issue it wants on appeal and even rule against a party on issues that the other side did not raise.

Finally, the district court did not get it wrong in granting the officers qualified immunity. Officers get the benefit of the doubt in close cases; that is how immunity works. Here, the plaintiff resisted orders to put her hands behind her back for the handcuffs, and they forced her body to ground. The facts set forth in this decision do not paint a pretty picture in describing how the officers were able to place her in cuffs for her initial offense, disorderly conduct. As the plaintiff had repeatedly refused orders to follow police instructions in order to place her in cuffs, "no precedential decision of the Supreme Court or this court 'clearly establishes' that the actions of [defendants], viewed in the circumstances in which they were taken, were in violation of the Fourth Amendment." That means the defendants get qualified immunity, and they are therefore not liable. Cases in which plaintiff relies in arguing otherwise involved excessive force that was truly excessive in relation to what the plaintiff had done in the presence of the police.