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NYPD Immune From Pepper-Sprayed Protester’s Suit

The Second Circuit served up defeat Wednesday to a pepper-sprayed Occupy Wall Street activist whose federal civil rights trial appeared all but certain after a ruling by the same court two years ago.

MANHATTAN (CN) — Flushing claims by an activist whom police pepper-sprayed in the face while she looked for a bathroom, the Second Circuit found Wednesday that immunity shields the two New York City police officers she sued.

Imani Brown’s lawsuit dates back to an incident on Nov. 15, 2011 - the day that the NYPD tore down what had been known as the unofficial headquarters of the global anti-corruption movement Occupy Wall Street.

A Starbucks manager called 911 that night, reporting that six people had been “knocking on the door really really bad trying to get in” and “making nasty comments.”

Brown acknowledges asking to use this restroom around that time, but she insists that the Starbucks worker politely invited her to come back in 25 minutes.

She says police gave her a rude response when she asked for directions to another restroom. “What do we look like, the potty police,” the officer said, according to Brown’s lawsuit, saying the man told her to “piss in the park.”

When police asked for Brown’s ID, the petite woman claims that she asked “on what grounds,” and was then wrestled to the ground and pepper-sprayed twice in the face at close range. The Second Circuit posted graphic video of the incident on its website.

Though U.S. District Judge Katherine Forrest tossed Brown’s suit initially, the Second Circuit revived the case in 2015, ruling that a federal jury could find police overreach.

“In this case, the severity of the crime is unquestionably slight,” U.S. Circuit Judge Jon Newman wrote for a divided three-judge panel in 2015. “The disorderly conduct offense is subject to a maximum penalty of fifteen days in jail, and the underlying facts, even as alleged by the officers, are loud banging on the door of a closed store by someone wanting to use a bathroom, plus the use of loud and nasty language.”

Though the case was remanded for trial, Forrest found new grounds by which to dismiss the lawsuit on April 21, 2016.

A new Second Circuit panel sided with the city on Wednesday, sparking objections by Brown’s attorney.

“In reasoning that the earlier decision ‘did not expressly direct the district court to hold a trial on remand,’ this panel overlooked the clear language of the court’s earlier decision,” Beldock Levine & Hoffman attorney Joshua Moskovitz said in an email.

Neither Newman nor U.S. Circuit Judge Guido Calabresi, his colleague from the 2015 appeal, sat on panel that ruled against Brown today.

Both panels did, however, feature U.S. Circuit Judge Dennis Jacobs, who wrote a fiery dissent two years ago mocking Brown as a “self-imagined revolutionary against corporate America.”

The lead author of today’s ruling, Timothy Stanceu, typically serves as the chief judge of the U.S. Court of International Trade.

“Brown is unable to demonstrate that any administering of pepper spray at a distance of as short as one foot upon an uncooperative arrestee violated ‘clearly established’ Fourth Amendment law against excessive force,” Stanceu wrote in a 22-page opinion.

The NYPD agreed that one of the sprays came closer than the department’s guidelines of at least 3 feet away.

Still, city spokesman Nick Paolucci said in a statement that "the city has always maintained that the officers’ response was justified under the circumstances.”

With her federal claims evaporating some four years later, Brown does not appear ready to concede defeat.

“Ms. Brown could pursue her state law claims in state court,” attorney Moskovitz said. “We are considering that option.”

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