An Occupy Wall Street activist can pursue legal action against the New York Police Department, a federal appeals panel ruled this week, after an earlier ruling ended with the protester’s claim of excessive force being rejected in District Court.
In an opinion handed down on Thursday by a three-person panel of the 2nd Circuit, the appeals court said activist and author Rami Shamir has standing to sue the NYPD over a Sept. 15, 2012, arrest in lower Manhattan.
Mr. Shamir had alleged that he was falsely arrested by an NYPD officer who had taken him into custody because he called the cop a “thug.”
The 2nd Circuit’s 13-page ruling affirms the District Court’s dismissal of false arrest and retaliatory arrest claims, but gives Mr. Shamir the go-ahead to sue the police for allegedly having cuffed his wrists too tight during the encounter.
“We are heartened the circuit will let Mr. Shamir have his day in court and will force the police to have theirs,” attorney Robert Quackenbush told Courthouse News Service. “We understand this to be the first time the circuit has definitively ruled that tight handcuffs can constitute excessive force.”
Mr. Shamir’s counsel had failed to adequately address the handcuffing allegation during initial filings, the appeals court ruled, but added the claims should be remanded back to District Court “despite the District Court’s justifiable misunderstanding that this claim was either not pleaded or not being pursued.”
“On appeal, Shamir contends that a remand is required for adjudication of what he asserts is a claim of use of excessive force in the course of his arrest. It is entirely understandable that the District Court did not adjudicate an alleged claim of excessive force. Nowhere in the complaint is there an explicit claim that excessive force was used in the course of Shamir’s arrest,” the 2nd Circuit wrote in its opinion.
“There is no excuse for his lawyer’s failure to state such a claim in plain language.”
Mr. Shamir said his hands were cuffed so tightly by the officers that they turned “really discolored,” “really swollen” and “really … blue.” He claimed he repeatedly asked for the cuffs to be loosened, but his requests were denied each time.
“Shamir went to Lenox Hill Hospital, where a doctor gave him pain medicine and put a splint on his right hand. He wore the splint for two weeks. He consulted a hand specialist. His pain became worse. As of the day of the hearing, nearly nine months after the arrest, he could not completely move the thumb of his right hand,” the appeals court said.
Mr. Shamir was originally arrested near the one-year anniversary of the Occupy movement on one charge of “unlawful camping” — he admittedly had planned to sleep in downtown New York with a group of around 20 other protesters. The charge was later dismissed, but the 2nd Circuit agreed this week that the NYPD had been in the right to make the arrest.
A spokesman for the NYPD told Courthouse News that the agency is “pleased that the court recognized the arrest was perfectly lawful and only permitted the handcuffing claim to proceed.”
Earlier this month, a class-action lawsuit filed against the NYPD alleged law enforcement routinely violated the constitutional rights of protesters during the Occupy movement and did not properly train its officers with regards to handling First Amendment-protected demonstrations.
In July, six protesters settled police-brutality claims against the city for a total of $332,500.
• Andrew Blake can be reached at ablake@washingtontimes.com.
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