Opinion
SUMMARY ORDER No. 04-4849-cv.
January 25, 2007.
Appeal from final decision of the United States District Court for the Southern District of New York (Colleen McMahon, Judge).
AFTER ARGUMENT AND UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is hereby AFFIRMED in part, VACATED in part and REMANDED.
CHARLES B. MCLAURIN, pro se, New Rochelle, NY.
LALIT K. LOOMBA, WILSON, ELSER, MOSKOWITZ, EDELMAN DICKERLLP, White Plains, NY, for Defendants-Appellees.
Plaintiff-Appellant Charles B. McLaurin appeals from a final judgment of the United States District Court for the Southern District of New York (Colleen McMahon, Judge), dismissing his claims arising out of two arrests, during which he contends that his constitutional rights were violated. We assume the parties' familiarity with the facts, procedural history, and issues on appeal. As to all defendants except Officers Kornas, Falcone, Fagan, Martinez and Lonergan, we affirm for the reasons stated in the orders of the District Court.
As to defendants Kornas, Falcone, Fagan, Martinez and Lonergan, we vacate the District Court's grant of qualified immunity and remand for further proceedings. When considering a government official's qualified immunity claim, we ask first whether, "[t]aken in the light most favorable to the party asserting the injury, . . . the facts alleged show the officer's conduct violated a constitutional right?" Saucier v. Katz, 533 U.S. 194, 201 (2001). We analyze claims of excessive force arising in the context of an arrest under the Fourth Amendment's objective reasonableness test, paying "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 he is actively resisting arrest or attempting to evade arrest by flight." Graham v. Connor, 490 U.S. 386, 394, 396 (1989).
Because there are disputes of fact here as to whether McLaurin resisted arrest and whether the level of force used by the officers was necessary and reasonable, the District Court's grant of qualified immunity was premature. See Kerman v. City of New York, 261 F.3d 229, 239 (2d Cir. 2001) (reversing grant of judgment as a matter of law on excessive force claim because "the contrasting accounts . . . present factual issues as to the degree of force actually employed and its reasonableness"); Robison v. Via, 821 F.2d 913, 924 (2d Cir. 1987) ("[T]he parties have provided conflicting accounts as to whether [plaintiff or the police] initiated the use of force [and] how much force was used by each. . . . Resolution of credibility conflicts and the choice between these conflicting versions are matters for the jury. . . ."). Crediting McLaurin's account of the incident, it appears that McLaurin made no physically threatening motions toward Kornas and Falcone prior to their hitting him with their nightsticks, and attempted to take the officers' nightsticks from them only in self-defense. Similarly, McLaurin claims that when the "backup officers" arrived he "immediately complied" with their order to lie down on his stomach and place his hands behind his back. Crediting McLaurin's account, and drawing all inferences in his favor, the District Court's conclusion that the force used by Lonergan and Fagan was justified by the need to restrain McLaurin is unsupportable. Finally, as the District Court recognized, although Martinez did not physically participate in the arrest, he may be liable for his failure to intervene, if the other officers were using excessive force. See O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988).
Citing N.Y. Penal Law § 35.27, "Justification: use of physical force in resisting arrest prohibited," defendants argue that McLaurin had no right to resist arrest, even had the arrest been unlawful. This is beside the point; it is well-established that "[t]he purpose of that section is merely to prevent combat arising out of a dispute over the validity of an arrest and does not prevent an individual from protecting himself from an unjustified beating." People v. Sanza, 323 N.Y.S.2d 632, 633 (N.Y.App.Div. 1971); see also People v. Stevenson, 31 N.Y.2d 108, 112 (1972) ("[T]here can be no cavil with the proposition that a citizen may use reasonable force in self-defense where the force exerted by the police in effecting an arrest is excessive.").
The District Court also held that McLaurin's allegations against Fagan were not actionable as a matter of law, because McLaurin did not allege any lasting injuries from Fagan's "spray[ing] a full can of mace into [McLaurin's] face which was already bleeding." We have made it clear that the injuries suffered need not be permanent or severe to recover under an excessive force claim, Robison, 821 F.2d at 924 (noting that accusations that officers "twist[ed plaintiff's arm, push[ed] him into the back seat of a police car, pull[ed] him by the scruff of the neck, and str[uck] him in the ribs" may support a claim for excessive force, to the extent that such acts were unreasonable and excessive).
We have considered all other arguments and found them to be of no merit. For the foregoing reasons, the judgment of the District Court is VACATED with respect to its grant of qualified immunity with respect to Kornas, Falcone, Fagan, Martinez and Lonergan. The judgment of the District Court is AFFIRMED in all other respects. We REMAND for further proceedings consistent with this order.