Court: OWS Pepper Spray Victim Can Sue For Excessive Force

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A still from video footage of Brown’s arrest (via)

Around 5:00 a.m. on November 15, 2011, a few hours after NYPD officers raided the Occupy Wall Street encampment at Zuccotti Park, two police officers arrested and pepper-sprayed 23-year-old protester Imani Brown outside of a downtown Starbucks where she was hoping to use the bathroom.

Brown filed a civil suit this June, accusing officers Justin Naimoli and Theodore Plevritis of falsely arresting her, and using “excessive force.” The suit was dismissed in district court, but yesterday the Second U.S. Circuit Court of Appeals in Manhattan reversed the excessive force claim. The court upheld the district court’s dismissal of the false arrest claim.

Brown’s suit recounts how she “approached the Starbucks and knocked on the door and, using an elevated voice, gestured to herself and to an employee inside.” There were several protestors outside of the Starbucks, and a manager called the police. Brown says that when she asked one of the officers where she might find a bathroom, one of them responded, “What do we look like, the potty police?”

Then, when Brown, who is 5’6″ and 120 pounds, refused to show Naimoli and Plevritis her identification, they told her that she was under arrest, grabbed her arm, accused her of resisting, and pushed her to the ground. According to the suit, Brown was pepper-sprayed twice before she “offered her arms to be handcuffed.” Courthouse News points out that video of Brown’s arrests shows one of the officers kicking Brown’s legs out after she’d already been handcuffed.

According to the officers, Brown had acted rudely when they asked for her ID and told her to leave the area.

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The Appeals court ruling reprimands the officers for not being explicit with Brown about why they were arresting her. From the ruling:

Before considering the legal issues on appeal, we pause to observe that, even on the officers’ version of the events, the arrest, the ensuing scuffle, and this lawsuit could very likely have been avoided if the police had explained to Brown why they were asking for her ID.

“I thought the majority opinion was a very careful and well-reasoned opinion on the excessive force claim,” Brown’s lawyer, Joshua Moskovitz, told us this morning. “It’s rare to see judges be so careful about scrutinizing the evidence on excessive force.”

Moskovitz also said that the officers’ lack of courtesy towards his client factored large in the reverse ruling. “If these officers had been the least bit courteous, none of this would have happened,” he said. “Too many police-citizen interactions escalate in a way that needn’t happen, and I think the jude recognized the need for civility in these types of encounters.”

Moskovitz added that he “was disappointed about false arrest, because I think we have a valid claim.”

A court date has yet to be set, and the city Law Department is reportedly reviewing the ruling.

In May, the city settled a $120,000 lawsuit brought by two OWS protestors against Deputy Inspector Anthony Bologna, who doused them with pepper spray in September 2011, apparently without provocation, and subsequently was not prosecuted.