Occupy protest case yields false arrest and excessive force claims

The Occupy Wall Street protests are behind us, but lawsuits arising from that protest are still being resolved in the federal courts. This decision presents good news for the plaintiff, who is suing police officers for false arrest and excessive force,

The case is Douglas v. City of New York, a summary order issued on April 5. Plaintiff attended the protest in October 2011 as a legal observer. One officer drive through a crowd of people on a police scooter, striking plaintiff, who fell to the ground.

According to Appellant, his right foot, ankle, or lower leg was trapped under the scooter’s rear wheel and in order to free himself he kicked the scooter over with his left foot. The scooter fell and sustained some damage, including a broken rearview mirror. Officer DiFrancesca, with the assistance of Sergeant Byrnes and Officer Allen, placed Appellant under arrest. In doing so, Officer DiFrancesca dragged Appellant, who was still on the ground, to a less crowded area. He then flipped Appellant onto his stomach, kneeled on Appellant’s back, and pressed a nightstick into the back of Appellant’s neck. The officers jostled Appellant so that his hands were behind his back all while Appellant was on the ground. During the arrest, Sergeant Byrnes made physical contact with Appellant and forced Appellant’s right arm behind his back. Officer Allen, who assisted the two other officers, helped establish a perimeter around Appellant, Officer DiFrancesca, and Sergeant Byrnes.

 Plaintiff got three or four stitches for his head wound and suffered other injuries. He was also charged with criminal mischief; plaintiff was later exonerated. While the district court dismissed the case, the Court of Appeals brings it back. The jury can find the police lacked probable cause to arrest plaintiff, as factual disputes include "whether Appellant’s leg was trapped under the scooter, whether he kicked over the scooter in order to free himself, and whether Officer DiFrancesca, Sergeant Byrnes, and/or Officer Allen were aware of this." The malicious prosecution claim will also go to trial for these reasons.

As for the excessive force claim (and a related claim for failure to intervene), the district court said the force was reasonable and the officers get qualified immunity. The Second Circuit sees it differently, noting a variety of factual disputes that the jury must resolve:

These questions concern the need for the application of force which included dragging Appellant on the ground, kneeing him in the back, pressing a night stick on his neck, twisting his right arm behind his back, and subduing and cuffing Appellant while he was lying on the ground face down. In addition, there is a dispute of material fact about whether the scene of Appellant’s arrest was chaotic or was at risk of becoming chaotic. While Appellees argue that there was a “surging crowd.” Appellant asserts that the video evidence shows that “the crowd was standing around peaceably watching, filming, and photographing.” Moreover, although the district court found that there were “hundreds of protesters” at the scene, Appellees concede that "there were approximately twenty to fifty people” (including police officers) at the time of Appellant’s arrest.