Police misconduct case will proceed to trial

The plaintiff alleges the City of Long Beach police officers subjected him to excessive force. The district court denied summary judgment on this claim, so the officers appeal to the Second Circuit on qualified immunity grounds, claiming their actions did not violate clearly-established law. The Court of Appeals is not buying this argument and the case will proceed to trial.

The case is Benny v. City of Long Beach, a summary order issued on December 14. If you want to appeal right away from the denial of qualified immunity (the federal rules normally disallow early appeals prior to entry of judgment) you have to argue that even if the plaintiff's facts are true, the officer is still entitled to immunity from suit. 

It is clearly established law in the Second Circuit that the police cannot assault people who did not resist arrest. Those cases are Rogoz v. City of Hartford, 796 F.3d 236 (2d Cir. 2015), and O'Hara v. City of New York, 570 Fed. Appx. 21 (2d Cir. 2014). Here, the summary judgment record (and the video) shows that the officers subjected plaintiff to physical force without warning or the opportunity for plaintiff to comply with their orders. Instead, he was thrown to the ground. If the jury credits plaintiff's version of events, it can find the officers knowingly violated clearly-established law in throwing him to the ground. That means plaintiff can win the case, and the appeal is denied.

Plaintiff also pursues a failure to intervene claim. These cases are difficult in the excessive force context because normally the use of force happens so fast that the other officers cannot take action to prevent the constitutional violation. But this claim survives summary judgment also. The Court of Appeals (Lynch, Park and Williams [D.J.]) reminds us that "whether the officer had a realistic opportunity to intervene is normally a question for the jury" unless the evidence shows otherwise. The Court of Appeals holds that this is one of those close cases alleging failure to intervene that will go to the jury.