Plaintiff-Appellant Ariel Douglas ("Appellant") appeals from the March 29, 2017 judgment of the United States District Court for the Southern District of New York (Carter, J.) dismissing his claims under 42 U.S.C. § 1983 alleging false arrest, unreasonable seizure, excessive force, and other torts arising out of his arrest at a demonstration. The district court granted summary judgment to Defendant-Appellees City of New York, Police Officer Anthony DiFrancesca ("Officer DiFrancesca"), Police Sergeant Brian Byrnes ("Sergeant Byrnes"), and Police Officer Jerome Allen ("Officer Allen," and collectively, "Appellees") on all Appellant's claims. The district court also denied Appellant's motion for partial summary judgment. We assume the parties' familiarity with the facts, procedural history, and issues on appeal which we reference only as necessary to explain our decision.
On October 14, 2011, Appellant attended an Occupy Wall Street protest as an identified legal observer. During the protest, Officer DiFrancesca drove through a crowd of people on a police scooter, striking Appellant with the scooter. Appellant screamed and fell to the ground. As Appellant was on the ground (and still screaming), Officer DiFrancesca dismounted the scooter and proceeded to direct the crowd to back away. According to Appellant, his right foot, ankle, or lower leg was trapped under the scooter's rear wheel and in order to free himself he kicked the scooter over with his left foot. The scooter fell and sustained some damage, including a broken rearview mirror. Officer DiFrancesca, with the assistance of Sergeant Byrnes and Officer Allen, placed Appellant under arrest. In doing so, Officer DiFrancesca dragged Appellant, who was still on the ground, to a less crowded area. He then flipped Appellant onto his stomach, kneeled on Appellant's back, and pressed a nightstick into the back of Appellant's neck. The officers jostled Appellant so that his hands were behind his back all while Appellant was on the ground. During the arrest, Sergeant Byrnes made physical contact with Appellant and forced Appellant's right arm behind his back. Officer Allen, who assisted the two other officers, helped establish a perimeter around Appellant, Officer DiFrancesca, and Sergeant Byrnes.
Following his arrest, Appellant was taken to a local precinct and then to Bellevue Hospital in an ambulance where he reported injuries to his right arm, head, and ankles. He was treated and received "three or four stitches" for his head wound. Joint App'x at 98. Appellant was charged with criminal mischief in the fourth degree (for damaging the scooter) and resisting arrest. He was released on his own recognizance. The City offered to resolve the matter with an adjournment in contemplation of dismissal, but the offer was rejected by Appellant. All charges against Appellant were dismissed by the Criminal Court of New York City on January 10, 2014.
On May 13, 2016, Appellees moved for summary judgment on all claims. Appellant moved for partial summary judgment against Officer DiFrancesca with respect to his Fourth Amendment excessive force claim, and against Sergeant Byrnes and Officer Allen on his failure to intervene claim.
The district court ruled that Officer DiFrancesca, Sergeant Byrnes, and Officer Allen were entitled to qualified immunity because of the "objective reasonableness" of the officers' belief that there was probable cause to arrest Appellant. Special App'x at 6. In the context of § 1983 actions predicated upon allegations of false arrest, we have held that an arresting officer is entitled to qualified immunity so long as arguable probable cause was present when the arrest was made,
We find there are material questions of fact concerning probable cause to arrest Appellant which should be presented to a jury. The questions include, among others, whether Appellant's leg was trapped under the scooter, whether he kicked over the scooter in order to free himself, and whether Officer DiFrancesca, Sergeant Byrnes, and/or Officer Allen were aware of this. Accordingly, we reverse the district court's grant of summary judgment in favor of Officer DiFrancesca, Sergeant Byrnes, and Officer Allen on the false arrest claim and remand that claim to the district court for trial.
The district court also granted summary judgment in favor of Appellees with respect to Appellant's claims for malicious prosecution, First Amendment retaliation, and abuse of process, after having concluded that Officer DiFrancesca, Sergeant Byrnes, and Officer Allen had probable cause (or arguable probable cause) to arrest and were entitled to qualified immunity. It found that the "objective reasonableness of the officers' belief that probable cause existed" defeated these claims. Special App'x at 6. Because we find that there are material questions of fact concerning probable cause to arrest, we also reverse the district court's grant of summary judgment on these related claims.
The district court concluded that "the force used in executing Plaintiff's arrest was reasonable and the officers are entitled to qualified immunity." Special App'x at 8. Accordingly, the district court granted Appellees' motion for summary judgment as to Appellant's Fourth Amendment excessive force claim and denied Appellant's motion for partial summary judgment with respect to his Fourth Amendment excessive force claim.
"The Fourth Amendment prohibits the use of excessive force in making an arrest, and whether the force used is excessive is to be analyzed under that Amendment's reasonableness standard. Determining excessiveness requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake."
In reviewing this issue, we found the videos of the events of October 14, 2011 to be helpful. We conclude that there are material questions of fact which render summary judgment inappropriate as to Officer DiFrancesca and Sergeant Byrnes. These questions concern the need for the application of force which included dragging Appellant on the ground, kneeing him in the back, pressing a night stick on his neck, twisting his right arm behind his back, and subduing and cuffing Appellant while he was lying on the ground face down. In addition, there is a dispute of material fact about whether the scene of Appellant's arrest was chaotic or was at risk of becoming chaotic. While Appellees argue that there was a "surging crowd," Joint App'x at 186, Appellant asserts that the video evidence shows that "the crowd was standing around peaceably watching, filming, and photographing."
Appellant's complaint also alleged that Officer DiFrancesca attacked him "with a motor scooter," Joint App'x at 17, and brought a due process claim against him under the Fourteenth Amendment for assault, battery, and trespass. The district court failed to discuss this claim. Appellees' motion for summary judgment on this claim was fully briefed below,
In analyzing a claim of excessive use of force in a non-seizure, non-prisoner context, this Court considers "the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm."
Appellees also moved for summary judgment on Appellant's failure to intervene claim, and Appellant moved for summary judgment on this claim against Sergeant Byrnes and Officer Allen. The district court determined that "given the Court's ruling that DiFrancesca and Byrnes did not use excessive force in violation of Plaintiff's constitutional rights, Defendants are entitled to summary judgment as a matter of law. Assuming arguendo that excessive force was used, the Court also finds that the Defendants had no realistic opportunity to intervene in this incident which lasted less than one minute." Special App'x at 8 (internal quotation marks omitted).
Police officers are under a duty to intercede and prevent fellow officers from subjecting a citizen to excessive force, and may be held liable for their failure to do so if they observe the use of force and have sufficient time to act to prevent it.
We are not persuaded by the district court's ruling that Officer DiFrancesca and Sergeant Byrnes did not use excessive force. Rather, we believe there are material questions of fact as to whether the force they used was excessive. Similarly, we are not persuaded on summary judgment that the officers had no realistic opportunity to intervene. Based upon video and other evidence, a jury could reasonably conclude that the officers did have enough time to stop their colleague(s) from using excessive force. "Whether an officer had sufficient time to intercede or was capable of preventing the harm being caused by another officer is an issue of fact for the jury unless, considering all the evidence, a reasonable jury could not possibly conclude otherwise."
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We have reviewed all of the parties' other arguments and find them to be without merit. For the reasons stated herein, the judgment of the district court is