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Occupier’s ‘Sleepful Protest’ Suit Revived

MANHATTAN (CN) - An Occupy Wall Street activist arrested three years ago during a sleep-in near City Hall can sue police for slapping on the flexicuffs on him too tightly after he called a police officer a "thug," the Second Circuit ruled Thursday.

The global protest movement that launched in lower Manhattan was roughly a year old author Rami Shamir joined 20 or so people in what the group described as a "sleepful protest" on Sept. 15, 2012.

Shamir said his sleeping bag was "parallel to the curb" and insisted that "none of the sidewalk was ... infringed by [his] sleeping bag."

Though Shamir acknowledged that police officers "said that we had to, you know, move," he said it was unclear that this was an order to disperse.

Shamir schlepped the bag to a bench a few feet away when police clarified their order, but other protesters stayed put.

"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," he testified.

"I may have yelled at them," he added.

Shamir was arrested and charged with "unlawful camping." After the case was dismissed, he filed a federal lawsuit, claiming that police tightened his zip-tie cuffs to the point where they "really hurt," leaving his hands "really discolored," "really swollen," and "really ... blue."

Nearly nine months after his arrest, Shamir allegedly still had trouble moving the thumb of his right hand.

U.S. District Judge Colleen McMahon granted the officers qualified immunity to the accusations of false arrest and retaliatory arrest, but she did not address the excessive-force allegation, finding it unclear that Shamir's lawyer had charged it.

On Thursday, a unanimous Second Circuit panel chided the lawyer for his "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," Judge Jon Newman wrote for the court.

The court upheld the dismissal of the two other charges on the grounds that police had at least "arguable probable cause" to arrest Shamir for placing his sleeping bag on the ground.

Shamir's attorney applauded the decision.

"We are heartened the circuit will let Mr. Shamir have his day in court and will force the police to have theirs," Robert Quackenbush of Rankin & Taylor said in an email. "We understand this to be the first time the circuit has definitively ruled that tight handcuffs can constitute excessive force."

A New York City Law Department spokesman said the agency is "pleased that the court recognized the arrest was perfectly lawful and only permitted the handcuffing claim to proceed."

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