Second Circuit Revives Occupy Protester’s Case

     MANHATTAN (CN) – Hours after police raided the New York headquarters of the Occupy Wall Street revolution, activist Imani Brown had a scuffle with two officers while looking for a restroom.
     Four years later, a lawsuit over that encounter may float toward a federal jury in the wake of a Second Circuit ruling reviving the case on Wednesday.
     New York City police officers swarmed into the unofficial headquarters of the Occupy Wall Street movement on Nov. 15, 2011, tearing down tents, libraries, kitchens and computer stations activists set up inside Zuccotti Park.
     Hours later, two of the officers wound up throwing Brown – a 5-foot-6, 120-pound, young activist – to the ground and pepper-spraying her twice in the face at close range over a dispute over a bathroom.
     NYPD officers Justin Naimoli and Theodore Plevritis insist they were responding to the 911 call of a nearby Starbucks manager who reported six people had been “knocking on the door really really bad trying to get in” and “making nasty comments.”
     Around that time, Brown says that she asked an employee there to use the restroom, but she received a polite response to come back in 25 minutes.
     Brown claims that these officers jeered at her request for directions to another restroom.
     One of them asked, “What do we look like, the potty police?” and suggested that she “piss in the park,” according to her complaint.
     The police insisted that Brown had been the one who acted rudely after they told her to leave the area and asked to see her ID.
     After she asked to know “on what grounds,” the police arrested her. A video of the encounter shows that Brown already had handcuffs on one of her wrists at the time one of the officers kicked her legs out from under her.
     Once on the ground, Brown says, police sprayed her once at a distance of one foot and then again at two feet away after she fumbled with her free hand to pull down her skirt that that raised up from behind.
     In the police’s account, they agree that at least one of the sprays was closer than the department’s instructions against spraying closer than three feet.
     Writing for the majority, Circuit Judge Jon Newman wrote that a reasonable jury could conclude that this was excessive force.
     “In this case, the severity of the crime is unquestionably slight,” Newman wrote. “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.”
     The majority upheld the lower court’s dismissal of Brown’s First Amendment claim and the officers’ qualified immunity on the false arrest allegation.
     In a scathing dissent, Circuit Judge Dennis Jacobs said that the video footage of the arrest shows that the excessive force claim “does not survive the witness of your eyes.”
     Putting the footage up on the court’s website , Jacobs said he was “happy to allow the videotape to speak for itself,” but he also criticized his colleagues’ ruling for another 26 pages.
     Treating the police’s “potty” remarks with open sarcasm, Jacobs pointed out that newspapers had reported that some activists turned Zuccotti Park into “something of an open sewer” while the encampments flourished.
     “The police should be free to perceive irony from a self-imagined revolutionary against corporate America who was begging relief at Starbucks Corporation,” he added.
     A spokesperson for the New York City Law Department said the office was reviewing the decision.
     Brown’s attorney Joshua S. Moskovitz from the firm Beldock Levine & Hoffman LLP said he was “pleased” with the panel’s ruling.

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