MANHATTAN (CN) — If they roughed up Charles Oakley, what does that mean for seniors like us? A Second Circuit judge made a cheeky example of himself and his octogenarian colleague Thursday at arguments about the former basketball star’s ejection from Madison Square Garden.
“Suppose an elderly gentleman, nearing 90, as Judge Newman and Judge Calabresi both are, declined to leave a place and says, ‘I’m not going,’” said U.S. Circuit Judge Jon Newman, referring to himself and his fellow panelist U.S. Circuit Judge Guido Calabresi. “Is it reasonable force to toss that person on the ground rather than gently carry him out?”
The Carter-appointed Newman is 88, which is the same age the Clinton- appointed Calabresi turns next month. Rounding out the panel today was U.S. Circuit Judge Susan Carney, an Obama appointee who just turned 69.
They called in for a half-hour teleconference Thursday to consider reviving a suit brought by the 56-year-old Oakley after he was dragged out in handcuffs and arrested during the first quarter of the Knicks-Clippers game on Feb. 8, 2017.
From 1988 to 1998, the 6’10 player affectionately dubbed “Oak Tree” spent 10 years as the Knicks' starting power forward. Oakley claimed in a 2017 federal complaint that the team added insult to injury after his arrest, insinuating in the media that Oakley was being drunk and abusive at the game.
At oral arguments Friday, Oakley’s attorney Douglas Wigdor called it imperative that a jury decide whether MSG staff deployed an unreasonable amount force to kick Oakley out the arena.
“I think it’s all up to interpretation by a fact-finder,” Wigdor said. “There may be, and likely is, other video that we haven’t yet seen or taken in for discovery”.
Wigdor said Oakley has lost $40,000 in business opportunities from guest appearances at drug and alcohol rehabilitation clinics due to the insinuation by team owner James Dolan that Oakley was an alcoholic.
High-profile Gibson Dunn attorney Randy Mastro represents Dolan, who is also executive chairman of Madison Square Garden Co. He said that because Oakley never alleged any injury from the alleged assault and battery, the force used by Madison Square Garden personnel against a trespasser refusing to leave was not objectively unreasonable.
Mastro, who previously served as chief of staff for former Mayor Rudy Giuliani, emphasized that the burden is on plaintiffs in Fourth Amendment cases to show that the amount of force used was objectively unreasonable.
Judge Carney questioned when force becomes justifiable.
“If I’m in the Garden,” she said, “and I’m asked to leave for whatever reason, known to me or not known to me, and I turn around, then the security guards can grab me and throw me to the ground?
“Why doesn’t that raise a reasonable question about the force used and all of the circumstances that are alleged,” Carney continued.
U.S. District Judge Richard Sullivan dismissed the suit in February, concluding that Oakley had failed to allege a plausible legal claim that can meet federal legal standards.
“From its inception, this case has had the feel of a public relations campaign, with the parties seemingly more interested in the court of public opinion than the merits of their legal arguments,” Sullivan wrote .
But Oakley’s argued on appeal that the lower court set a dangerous precedent in finding that a property owner asking someone to leave automatically triggers his right to proceed directly to violent conduct.
“Anyone who buys a ticket to any event would naturally be expected to ask for a reason if approached without warning and told that she must leave,” the brief states.
“According to the lower court, receiving such a request for an explanation standing alone would trigger the property owner’s right to immediately engage in violence to effectuate the ejection. New York law does not provide property owners such unfettered discretion to resort to force without any legitimate provocation.”
The three-judge panel reserved their ruling on the appeal.
In August 2017, Oakley accepted a plea deal to resolving the criminal charges against him, dropping the charges if he stayed out of trouble for six months and kept away from Madison Square Garden for a year.
Earlier this week, he became the first contestant to be eliminated on season 29 of the dance competition TV series “Dancing With The Stars.”Follow @jruss_jruss
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