14-3606
Shamir v. City of New York

                             UNITED STATES COURT OF APPEALS

                                  FOR THE SECOND CIRCUIT

                                      August Term 2015

   Heard: August 24, 2015                                   Decided: October 22, 2015

                                       Docket No. 14-3606

   - - - - - - - - - - - - - - - - - - - - - -
   RAMI SHAMIR,
        Plaintiff-Appellant,

                             v.
   CITY OF NEW YORK, JOHN DOE, NYPCO Lieutenant,
   in their individual capacities, ROBERT MURRAY,
   NYCPD Lieutenant, in their individual capacities,
        Defendants-Appellees.
   - - - - - - - - - - - - - - - - - - - - - -

   Before: NEWMAN, WALKER, and JACOBS, Circuit Judges.

           Appeal from the August 27, 2014, judgment of the United

   States District Court for the Southern District of New York

   (Colleen McMahon, District Judge), dismissing on motion for

   summary         judgment       complaint    presenting   claims     for    false

   arrest, retaliatory arrest, and use of excessive force.

           Affirmed as to dismissal of claims for false arrest and

   retaliatory arrest, reversed as to dismissal of claim for

   use of excessive force, and remanded.




                                               1
                          David B. Rankin, Rankin & Taylor,
                            PLLC, New York, NY (Robert M.
                            Quackenbush, Rankin & Taylor,
                            PLLC, New York, NY, on the
                            brief), for Appellant.

                          Fay Sue Ng, Asst. Corp. Counsel,
                            New   York,   NY   (Zachary  W.
                            Carter, Corp. Counsel of the
                            City of New York, Pamela Seider
                            Dolgow, Asst. Corp. Counsel,
                            New York, NY, on the brief),
                            for Appellees City of New York
                            and Robert Murray.




JON O. NEWMAN, Circuit Judge.

         This appeal from the dismissal of a civil rights

complaint under 42 U.S.C. § 1983 concerns claims for false

arrest and use of excessive force and illustrates the peril

counsel faces by lack of precision in stating the nature of

the claims being asserted.      Rami Shamir appeals from the

August 27, 2014, judgment of the District Court for the

Southern District of New York (Colleen McMahon, District

Judge), dismissing, on motion for summary judgment, his

complaint against the City of New York, Police Lieutenant

Robert Murray, and an unnamed police officer.    We conclude

that the complaint was properly dismissed to the extent that

it alleged claims of false arrest and retaliatory arrest,


                             2
and, with considerable reluctance, also conclude that the

woefully pleaded claim for use of excessive force must be

remanded    for    further   proceedings,   despite   the     District

Court’s justifiable misunderstanding that this claim was

either not pleaded or not being pursued.

                              Background

    Facts of the episode. The facts, which are assumed to

be true for purposes of the Defendants’ motion for summary

judgment on the ground of qualified immunity, see Salim v.

Proulx, 93 F.3d 86, 90 (2d Cir. 1996), are taken from the

complaint    and    the   plaintiff’s   testimony    at   a   civilian

complaint hearing pursuant to Gen. Mun. Law § 50-h (McKinney

2014).     On September 15, 2012, Shamir was attending an

Occupy Wall Street demonstration near City Hall Park in

lower Manhattan with twenty others.           He was participating

“in a form of civil disobedience,” which he characterized as

“using sleepful protest.” Shamir testified that on the

sidewalk of Centre Street he “took out [his] sleeping bag

and laid it down on the floor.”             His sleeping bag was

“parallel    to    the    curb.”   When    asked   whether    he   “was

intending to sleep there?” he answered, “Yes.” He contended

that “none of the sidewalk was . . . infringed by [his]



                                   3
sleeping bag,” but added that the sidewalk was “part of the

concrete that leads from the curb to about maybe one or two

feet from the fence to the park,” and that he was “probably

one or two feet away from the fence.”

    He acknowledged that   police officers “said that we had

to, you know, move.”    He added, “I don’t know if it was an

order to disperse, but, you know, something maybe along

those   lines.”   His    complaint   acknowledges    that    “(a)

member(s) of the NYPD gave what appeared to be an order to

disperse.” The complaint also alleges that Shamir “complied

with police orders by leaving moving [sic] from where he was

located.”

    Within less than half an hour several more police

officers arrived at the scene. According to Shamir, “[w]hen

we were given . . . what I understood as a definite order to

disperse, I got up and took my sleeping bag” and “put it on

the bench . . . a couple of feet [away].”          Then, Shamir

testified, “As the police officers began to crowd around the

people who had remained on the ground, . . . I went up to

one of the police officers and I told him that he’s a thug,”

and “I may have yelled at them.”     Shamir was then arrested.

    Police    Officer   Rodriguez    (presumably    the     “Doe”

defendant in the complaint) handcuffed Shamir using “zip-tie

                              4
handcuffs.”       Shamir complained that the handcuffs were

“really . . . tight” and “really hurt.”            Shamir repeatedly

asked that the handcuffs be loosened, but his requests were

denied.    He was taken to a precinct, where he showed police

officers    his   hands   which,       he   testified,   were   “really

discolored,” “really swollen,” and “really . . . blue.”

After being released from police custody, 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.

    Shamir was arraigned more than 24 hours after his

arrest on a charge of unlawful camping in violation of 56

RCNY 1-04(p). The charge was later dismissed.

    District Court proceedings. Shamir filed a complaint

against Lt. Murray, police officer “Doe,” and the City of

New York, alleging federal claims under 42 U.S.C. § 1983 and

pendent state law claims. Because a principal issue on this

appeal concerns what federal claims Shamir sought to plead,

we set forth the relevant language from paragraph 28 of the



                                   5
complaint that alleges the “freedoms” allegedly denied in

violation of the Constitution:

    “a. freedom from unreasonable searches          and
    seizures of his person, under the Fourth        and
    Fourteenth Amendments,

    “b. freedom from arrest without probable cause,
    under the Fourth and Fourteenth Amendments.”

    In this Court, Shamir contends that paragraph (a),

understood in light of    the factual allegations of the

complaint, pleads a claim of excessive force in the course

of his arrest, based on the tightness of the handcuffs and

the refusal to loosen them despite his repeated requests.

    The Defendants moved to dismiss the complaint, pursuant

to Fed. R. Civ. P. 12(b)(6), solely on the ground that the

police officers were entitled to qualified immunity with

respect to the claim for false arrest.     In a supporting

memorandum they contended that probable cause existed to

arrest Shamir for camping in a park, in violation of 56 RCNY

§ 1-04(p), and for disorderly conduct by failing to obey an

order to disperse, in violation of N.Y. Penal Law 240.20(6).

Neither their motion to dismiss nor their memorandum in

support of the motion made any reference to a claim of

excessive force.




                             6
    Shamir’s memorandum in opposition to the motion to

dismiss also made no reference to a claim of excessive

force.   His counsel filed a “declaration” attaching the

transcript of Shamir’s testimony at the section 50-h hearing

and withdrawing Shamir’s claim against the City of New York.

With that transcript before the Court, the Defendants then

moved to amend their motion to dismiss to become a motion

for summary judgment pursuant to Fed. R. Civ. P. 56, a

request that the District Court granted.

    Shamir’s    counsel    then    filed     a   “declaration”     that

included the following: “Further, based upon a review of

defendant's    motion,    they   did   not   move   to   dismiss    the

complaint on ‘Fourth Amendment - Excessive Force’ grounds.

They only moved to dismiss based upon probable cause.”

    The Defendants filed a memorandum in support of the

converted motion for summary judgment, renewing their claim

for qualified immunity with respect to the arrest of Shamir

and again not mentioning a claim of excessive force.

    The District Court granted the Defendants’ motion for

summary judgment.   The Court stated, “Plaintiff admitted in

his 50-h testimony that he stopped in the park, took out his

sleeping bag, laid it on the ‘floor’ and sat on its with the

intention of spending the night there.” This admission, the

                                  7
Court ruled, established probable cause, or at least the

“arguable      probable      cause”     that    sufficed    for    qualified

immunity.      The Court’s opinion made no reference to a clam

of excessive force.

                                   Discussion

       I. Excessive Force

       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.                There is no excuse for his

lawyer’s failure to state such a claim in plain language.

Nevertheless,         we    feel   obliged,     with    apologies    to   the

District Court, to infer the pleading of an excessive force

claim from the clues lurking beneath the inartful wording of

the complaint.

       As noted above, paragraph 28 sets forth two separate

ways    that    the    police      officers    deprived    Shamir    of   his

constitutional          rights.         Subparagraph       28(a)     alleges

deprivation of the “freedom from unreasonable searches and

seizures       of     his    person.”         Because     the   complaint’s

                                        8
allegations of facts do not mention any search of Shamir’s

person, this subparagraph is fairly read to allege only an

unreasonable seizure of his person.       Read in isolation, the

subparagraph could be understood to allege an arrest without

probable   cause.    However,       subparagraph   28(b)   alleges

deprivation of the “freedom from arrest without probable

cause.”    The existence of that subparagraph implies that

paragraph 28(a), unless it is redundant, is endeavoring to

allege a deprivation of a constitutional right other than

freedom from an unlawful arrest.

    An arguable identification of that other right can be

inferred from the phrase “unreasonable . . . seizure of the

person,” coupled with the Supreme Court’s analysis of claims

that law enforcement officers used excessive force in the

course of an arrest.      “Such claims,” the Court stated in

Graham v. Connor, 490 U.S. 386, 388 (1989), “are properly

analyzed    under   the    Fourth       Amendment’s     ‘objective

reasonableness’ standard.” Thus, the use of excessive force

renders a seizure of the person unreasonable and for that

reason violates the Fourth Amendment.

    Paragraph 22 of the complaint supplies the factual

predicate for understanding subparagraph 28(a) to allege use

of excessive force in making the arrest.              Paragraph 22

                                9
states, “P.O. Doe placed Mr. Shamir in zip-tie handcuffs and

intentionally tightened them excessively, causing injury to

Mr. SHAMIR’s lower arms.”              Shamir’s 50-h testimony supplied

further details of the pain and consequences of the tight

handcuffing. In addition, Shamir’s lawyer submitted, albeit

as an afterthought, a “declaration” pointing out that the

Defendants “did not move to dismiss the complaint on ‘Fourth

Amendment - Excessive Force’ grounds.                    They only moved to

dismiss based upon probable cause.” Of course, there was no

excuse   for    omitting,        from     the    memorandum       opposing        the

Defendants’ motion to dismiss, the Plaintiff’s argument that

the Defendants’ motion ignored the alleged excessive force

claim, which, on the Plaintiff’s theory, would have defeated

dismissal      of    the    entire       complaint,      even     if    qualified

immunity warranted dismissal of the false arrest claim.

      With an excessive force claim reluctantly inferred from

Paragraph 28(a) of the complaint, there can be no doubt that

the   claim,        on     the   facts        alleged,     warrants          further

consideration.           Several       decisions    have      recognized          that

excessively         tight    handcuffing         that    causes      injury       can

constitute     excessive         force    in    violation       of     the    Fourth

Amendment,     applicable         to    the     states   by     virtue       of   the

Fourteenth Amendment. See, e.g., Vondrak v. City of Las

                                         10
Cruces, 535 F.3d 1198, 1208-09 (10th Cir. 2008); Lyons v.

City of Xenia, 417 F.3d 565, 575-76 (6th Cir. 2005); Hanig

v. Lee, 415 F.3d 822, 824 (8th Cir. 2005).

       II. False Arrest

       We agree that the Defendants are entitled to qualified

immunity as a defense to the claim of false arrest, but for

reasons different than those articulated by the District

Court.       The District Court ruled that the police officers

had probable cause, or at least “arguable probable cause,”

Zalaski v. City of Hartford, 723 F.3d 382, 390 (2d Cir.

2013), sufficient for qualified immunity, to arrest Shamir

for camping in the park.        The Court relied on the fact that

Shamir was observed placing his sleeping bag on the sidewalk

next    to    the   fence   surrounding   City   Hall   Park   and   his

testimony at the 50-h hearing that he intended to sleep

there as a protest.

       Probable cause is determined on the basis of facts

“known to the arresting officer at the time of the arrest,”

Devenpeck v. Alford, 543 U.S. 146, 152 (2004); see Lowth v.

Town of Cheektowaga, 82 F.3d 563, 569 (2d Cir. 1996).                What

Shamir admitted several months after his arrest cannot be

used to show what the officers knew at the time of the

arrest. Because the record is not fully developed at this stage

                                   11
of the proceeding, the District Court did not have testimony from

any of the officers confirming that at least one of them saw

Shamir sitting on his sleeping bag and then had reason to believe

that       he    intended      to    sleep      in   an    area    covered    by     park

regulations.1              Accordingly, although we need not express an

opinion about whether Judge McMahon was entitled to conclude that

there was at least arguable probable cause to arrest Shamir for

illegal camping, we affirm dismissal of the false arrest claim on

an alternate ground.

       Probable        cause        did   exist      for   arresting     Shamir      for

disorderly conduct by violating an order to disperse.

Shamir’s 50-h testimony, relevant to what the officers knew

at the time of the arrest, establishes that police officers

gave such an order.                 Despite Shamir’s vague claim that, in

response to the order, he moved “from where he was located,”

he admitted that he “went up to one of the police officers”

and called him a thug.                That approach to the officer 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



       1
      It is undisputed that under the New York City Charter
park rules and regulations are enforceable “within any park
. . . or within a distance of three hundred fifty feet from
the outer boundaries thereof.” Ch. 21, § 533(a)(5) (2013).

                                             12
disperse provided probable cause to arrest. An officer’s

motivation is irrelevant to the Fourth Amendment validity of

an arrest. See Whren v. United States, 517 U.S. 806, 813

(1996).

                        Conclusion

    The judgment is affirmed to the extent that the claims

for false arrest and retaliatory arrest were dismissed, and

reversed and remanded with respect to the claim of excessive

force in making an arrest. Because this appeal could have

been avoided by proper pleading, no costs are awarded.

Reversed in part and remanded.




                             13
