B. Excessive Force.
Clifford also seeks summary judgment on the claim for excessive force. Plaintiff's claim that he violated her Fourth Amendment rights by using excessive force is analyzed under a "reasonableness" standard which depends on an objective evaluation of when the seizure was made and how it was carried out. Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1871, 104 L. Ed. 2d 443 (1989). "Proper application" of the standard "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether the suspect is actively resisting arrest or attempting to evade arrest by flight. " Id. at 396-97, 109 S. Ct. at 1871-72.
Plaintiff's version of the facts precludes summary judgment. Officer Clifford was confronted with an unarmed petite woman who in front of her own home muttered an obscenity after having a minor disagreement with a police officer. Clifford decided to arrest her, not because she posed any threat to his safety or to that of the public, but to "teach her a lesson." He then had trouble handcuffing her.
Clifford attributes the trouble to plaintiff's resisting arrest. Plaintiff and others say the trouble was caused by Clifford's persistent attempts to twist her arms despite her physical limitations. A jury will determine based on these and other facts whether it was reasonable for Clifford to respond to the "threat" he faced with the force that he did.
Clifford also says that plaintiff has failed to show that she suffered a significant injury. But "if the force used was unreasonable and excessive, [she] may recover even if the injuries inflicted were not permanent or severe." Robison v. Via, 821 F.2d 913, 924 (2d Cir. 1987). The jury will consider the extent of her injuries in determining whether the force used was excessive and in calculating the amount of damages, if any, to which she is entitled.
C. Malicious Prosecution.
Plaintiff's claim of malicious prosecution brought under section 1983 is governed by state law in the absence of federal common law. Janetka v. Dabe, 892 F.2d 187, 189 (2d Cir. 1989) (citations omitted). To prevail plaintiff must establish that (1) the defendant either commenced or continued a criminal proceeding against her; (2) the proceeding terminated in her favor; (3) there was no probable cause for the criminal proceeding; and (4) the criminal proceeding was instituted in actual malice. Id.
Plaintiff's criminal prosecution was adjourned in contemplation of dismissal. Such a disposition bars recovery for malicious prosecution because the criminal proceeding was not terminated in her favor. Singleton v. City of New York, 632 F.2d 185, 193 (2d Cir. 1980); Hollender v. Trump Village Coop., Inc., 58 N.Y.2d 420, 461 N.Y.S.2d 765, 448 N.E.2d 432 (1983). The claim for malicious prosecution is dismissed.
D. Clifford's Defense of Qualified Immunity.
Whether Clifford has a defense of qualified immunity for the claims against him for false arrest and excessive force depends upon whether it was objectively reasonable for him to have believed that probable cause existed, or whether officers of reasonable competence could disagree on whether the probable cause test was met. Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987).
Plaintiff invokes rights that are clearly protected under federal law. Clifford is entitled to summary judgment only if it was objectively reasonable for him to believe that his acts did not violate those rights. Plainly this is an issue of fact for the jury. Id.
If plaintiff, her husband, and her friend are telling the truth, no reasonable officer in Clifford's position would have believed his actions were justified under the United States Constitution. Clifford announced that he was arresting her "to teach her a lesson" for trying to "teach him" the law and for using an obscenity. According to plaintiff, she muttered an obscenity once as she walked away from Clifford, and then repeated it as she was recounting the events to her husband. Clifford was not threatened physically by the middle-aged woman with a physical disability, yet he used excessive physical force to handcuff her and drag her into a police car. He did not hesitate even though both plaintiff's friend and another police officer suggested that his action were inappropriate.
The record fails to establish that Clifford is entitled to qualified immunity.
In addition to stating claims under section 1983, the complaint invokes 42 U.S.C. §§ 1985, 1986. Section 1985 provides a claim against those who conspire to interfere with civil rights. Section 1986 provides a claim against those who know that wrongs are about to be committed in furtherance of such a conspiracy but fail to take action to prevent the wrongful acts.
Plaintiff invokes these provisions without providing any details about the alleged conspiracy. She does not say who the conspirators were or what they agreed to do. These claims are dismissed.
The claims against the City of New York and the Police Department are dismissed. Clifford's motion for summary judgment is granted, except as to the claims for false arrest and use of excessive force.
Dated: Brooklyn, New York
September 4, 1992
Eugene H. Nickerson, U.S.D.J.
© 1992-2004 VersusLaw Inc.