New York Courthouse Ejection Claim Revived

MANHATTAN (CN) - Police can violate a person's Fourth Amendment right against seizure by using force to clear an area, the Second Circuit ruled Thursday.

Oliver Salmon brought the case at hand over a 2010 incident in which a police officer allegedly hustled him out of the Albany City Court building.

Salmon said he and his attorney were at the site to examine a court file. Because only lawyers were allowed in the clerk's office where the file was kept, however, Salmon waited outside in a public area, according to his complaint.

When officer Thomas Blesser ordered the public area cleared, Salmon said he tried to explain why he was there, but the officer "became enraged," grabbed him by the collar, "violently twisted" his arm behind his back, shoved him out the door and threatened to arrest him if he returned.

Salmon sued Blesser, the Albany Police Department, the city and unnamed officers who assisted in the ejection for rights violations and physical injury.

A federal judge in Albany dismissed the 2013 complaint last year, saying Salmon's Fourth Amendment claim of seizure failed in light of precedent by the Second Circuit in Sheppard v. Beerman.

Reviving Salmon's seizure claim Thursday, the Second Circuit clarified its 1994 ruling in Sheppard, which involved a fired law clerk escorted from a courthouse after being ordered to leave the judge's chambers where he worked.

"Sheppard states a general rule that a police order to leave an area, without more, does not effect a seizure of the person so ordered," Judge Reena Raggi wrote for the three-judge panel.

"Nevertheless, where, as here, an official uses physical force to effect the ejection, so that for a time, however briefly, he intentionally restrains the person and controls his movements, a plaintiff can plausibly plead a seizure subject to the Fourth Amendment's reasonableness requirement."

Emphasizing the use of force in such cases, the judges pointed to the U.S. Supreme Court's ruling in 1968 that a person is seized "when [an] officer, by means of physical force or show of authority ... in some way restrain[s] the liberty of a citizen."

While "physical force" is easy to determine, the high court said, a "show of authority" can be gauged by the "free to leave" test - whether a reasonable person believes he can go somewhere other than where he is being directed to stay away from.

In Sheppard, the fired law clerk could go anywhere other than the judge's chambers or the courthouse, so he wasn't "seized," the Second Circuit said. The picture would have been different, however, if the clerk's keys or wallet had been taken, preventing him from leaving.

Raggi wrote that police officers frequently order people to leave crime scenes and accident sites, and may even "take a person by the elbow or employ comparable guiding force short of actual restraint to ensure obedience with a departure order."

"Our precedent does not view such police conduct, without more, as seizure under the Fourth Amendment as long as the person is otherwise free to go where he wishes," she added. "That is the crux of Sheppard v. Beerman."

But Salmon was not "merely ordered or escorted" out of the Albany building; he claims he was subjected to "painful force," Raggi noted.

"For such time as Blesser held Salmon by the collar and twisted his arm behind his back, Blesser was intentionally restraining and controlling Salmon's movements, thereby transforming their encounter, even if only briefly, into a detention, which qualifies as a seizure of Salmon's person," the ruling states.

Judges Dennis Jacobs and Gerard Lynch concurred.

The panel otherwise affirmed dismissal of Salmon's First Amendment claim that ejection from the building denied him access to the court records he sought.

It was his attorney who attempted to view the records, and Salmon's having to wait outside the building did not interfere with that access, the judges said.

Keith Frank Schockmel of Albany represented Salmon. Eric Sugar, assistant corporation counsel, argued for the municipal defendants.

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