14-2611 Brown v. City of New York UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2014 Heard: June 17, 2015 Decided: August 19, 2015 Docket No. 14-2611

- - - - - - - - - - - - - - - - - - - - - - IMANI BROWN, 1 Plaintiff-Appellant, 2 3 v. 4 5 CITY OF NEW YORK, a municipal entity, 6 JUSTIN NAIMOLI, in his individual capacity, 7 THEODORE PLEVRITIS, in his individual capacity, 8 Defendants-Appellees 1 9 10

- - - - - - - - - - - - - - - - - - - - - - 11 12 Before: NEWMAN, JACOBS, and CALABRESI, Circuit Judges

. 13 14 Appeal from the June 18, 2014, judgment of the United States 15 District Court for the Southern District of New York (Katherine 16 B. Forrest, District Judge), dismissing on motion for summary 17 judgment, a complaint primarily alleging false arrest and use of 18 excessive force. 19 Affirmed in part, reversed in part, and remanded. Judge 20 Jacobs concurs in the judgment in part and dissents in part with 21 a separate opinion. 22

1 The Clerk is directed to conform the official caption to the caption in this opinion.Joshua S. Moskovitz, Beldock Levine & 1 Hoffman LLP, New York, NY (Jonathan 2 C. Moore, Beldock Levine & Hoffman 3 LLP, New York, NY, on the brief), 4 for Appellant. 5 6 Julie Steiner, Asst. Corp. Counsel, 7 New York, NY (Zachary W. Carter, 8 Corp. Counsel of the City of New 9 York, New York, NY, on the brief), 10 for Appellees. 11 12 13 14 15 JON O. NEWMAN, Circuit Judge
. 16 A pre-dawn sidewalk conversation between police officers and 17 a member of the public that began with a request for help finding 18 a bathroom escalated into a confrontation, an arrest, a struggle, 19 a use of force and pepper spray, a lawsuit, and now this appeal 20 from dismissal of the lawsuit. Imani Brown appeals from the June 21 18, 2014, judgment of the District Court for the Southern 22 District of New York (K atherine B. Forrest, District Judge), 23 granting a motion for summary judgm ent by New York City police 24 officers Justin Naimoli and Theodore Plevritis and the City of 25 New York. 26 We conclude that Brown’s claim against the officers for 27 unlawful arrest is defeated by their defense of qualified 28 immunity, her First Amendment claim was properly dismissed as 29

-2-lacking any merit, and her claim against them for use of 1 excessive force must be remanded for trial. We have no occasion 2 to consider Brown’s claims against the City because her brief on 3 appeal does not challenge the dismissal of those claims. We 4 therefore affirm in part, reverse in part, and remand. 5 Background 6 Several facts are undisputed, and, on this appeal from the 7 grant of the Defendants’ motion for summary judgment, those that 8 are disputed must be viewed in the light most favorable to the 9 Plaintiff, Imani Brown. See Costello v. City of Burlington , 632 10 F.3d 41, 45 (2d Cir. 2011). 11 On the night of November 15, 2011, an Occupy Wall Street 12 crowd gathered in Zuccotti Park in lower Manhattan. Brown 13 received a text message saying that the park had been raided. 14 She went to observe around 2 a.m. and left around 5 a.m. to find 15 a bathroom. Two blocks away, she came to a Starbucks store and 16 spoke to an employee who told her that the store was closed but 17 would open at 5:30, which was 15 or 20 minutes later. She 18 remained on the sidewalk, intending to wait until the store 19 opened. 20 That night Officers Naimoli and Plevritis were working the 21 11:15 p.m. to 7:50 a.m. shift. They drove by Zuccotti Park as 22

-3-the crowd was being cleared. They arrested a man who was 1 blocking traffic and after taking him to Central Booking resumed 2 their patrol around 4 a.m. 3 At 5:05 a.m., an assistant manager of the Starbucks store 4 called 911 and reported six people knocking on the door of his 5 closed store, trying to get in to use the bathroom. He said that 6 they were “knocking on the door really really bad trying to get 7 in,” and “making nasty comments.” Defendants’ Statement of 8 Undisputed Facts, ¶ 21. 2 The 911 ope rator heard the assistant 9 manager tell an employee to lock the bathroom door from the 10 outside because he heard “banging on the doors . . . [t]he 11 outside doors.” Exhibit 16 (911 call transcript). A radio 12 dispatcher immediately relayed the substance of the 911 call to 13 Officers Naimoli and Plevritis, stating in part, “[S]ix people 14 banging on the doors refusing to leave at Starbucks coffee.” 15 Hearing the transmission, Naimoli and Plevritis drove to the 16 store location, arriving there within minutes of the 911 call. 17 From this point on, most of the facts, as recounted in 18 depositions and testimony at a civilian complaint hearing, are 19

2 The Plaintiff “does not dispute this fact,” disputing only that she was not knocking on the doors or making nasty comments and that no one else was doing these things while she was present. See Plaintiff’s Statement of Undisputed Facts, ¶ 21. -4-in dispute. We continue with Brown’s version. When the officers 1 arrived, only she and two other persons were waiting near the 2 Starbucks store. Brown approached the police car, gestured to 3 have the window rolled down, and spoke to the officers through 4 the passenger side front window. Brown asked if the officers 5 knew where she could find a bathroom. 6 One officer answered her question with a question of his 7 own, “What do we look like, the potty police?” Brown asked her 8 question again. One officer answered that Brown should “piss in 9 the park.” 3 Brown asked whether that would be illegal and was 10 told that it would be. Brown then said, “[S]o you are just not 11 going to help me, you don’t have anything you can offer me, any 12 advice you can offer?” One officer, still in the police car, 13 then told Brown that she “should go home.” She responded that 14 she lived over an hour away and preferred to wait until the 15 Starbucks opened. 16 As Brown walked away from the police car, the officers got 17 out of the police car and asked for her ID. She repeatedly asked 18 why they wanted it, they gave no explanation, and she refused to 19

3 The dissent dismisses this crude remark as understandable “irony,” prompted by the officer’s awareness that some people had urinated in Zucotti Park during “Occupy” protests. Dissenting op. **[5]** . The first word on the vehicles of all New York City police officers is “courtesy,” not “irony.” -5-provide any ID. As Officer Plevritis acknowledged in his 1 deposition, he then gr abbed Brown and said to her, “[G]ive me 2 your identification or you’re going to be placed under arrest.” 3 When she again refused, he told her, “You’re under arrest.” 4 Brown repeatedly asked why she was being arrested but received 5 no explanation. One or both of the officers then grabbed her 6 arm, held it behind her back, and attempted to apply handcuffs. 7 An officer kicked her legs out from under her, and she fell to 8 her knees. A videotape shows that handcuffs had been placed on 9 one of Brown’s wrists before she was thrown to the ground. On 10 the ground, Brown reached with her other arm for her phone, 11 wallet, and scattered contents of her purse. 12 The videotape shows both officers on the ground, endeavoring 13 to bring her free arm behind her in order to complete the 14 handcuffing. The videotape shows a struggle with considerable 15 shouting by Brown, the officers, and a bystander. 16 Officer Plevritis administered a burst of pepper spray 17 directly to Brown’s face. When Brown realized her skirt had come 18 up and “that [her] bottom was exposed,”, she ask if the officers 19 could pull her skirt down. They prudently declined, one of them 20 answering, “No, it wouldn’t have been like that, if you weren’t 21 causing trouble.” When asked what she then did, Brown said she 22 -6-was “reaching with my free arm trying to pull my skirt down.” 1 As the struggle to handcuff Brown continued, Officer Plevritis 2 administered a second burst of pepper stray directly in her face 3 from a distance of one foot. 4 The officers then completed the handcuffing, raised Brown to 5 her feet, placed her in the police car, and drove her to a police 6 station. 7 The officers’ arrest report stated that Brown “was asked to 8 leave . . . after causing a disturbance in front of a store” and 9 “refuse[d] to give ID and responded with profanity.” Document 54- 10 11 (emphasis added). Her arrest was stated to be for “refusing 11 to move on” in violation of the disorderly conduct provision, 12 subsection 6, of N.Y. Penal Law § 240.20. Later, Officer Naimoli 13 spoke with an assistant district attorney who prepared a criminal 14 complaint. That complaint charged Brown with violating 15 subsections (1) and (3) of Penal Law § 240.20 by “engag[ing] in 16 fighting and in violent, tumultuous and threatening behavior” and 17 “us[ing] abusive and obscene language . . . in a public place” 18 “with intent to cause public inconvenience, annoyance and alarm, 19 and recklessly causing a risk thereof.” The complaint, which 20 Officer Naimoli signed under oath, alleged that he personally 21 observed Brown “banging on the door of Starbucks and screaming” 22 -7-and that her conduct “caused a crowd to gather and people to 1 express alarm.” Officer Naimoli later admitted in his deposition 2 that he did not personally observe Brown banging on the door of 3 Starbucks and that he did not see her yelling at a Starbucks 4 employee. 5 After the criminal complaint was dismissed, Brown filed suit 6 under 42 U.S. C. § 1983, alleging claims for false arrest and use 7 of excessive force in violation of the Fourth Amendment, and 8 retaliation in violation of the First Amendment. The District 9 Court ultimately granted the Defendants’ motion for summary 10 judgment, concluding that “[q]ualified immunity insulates 11 defendants from liability on [Brown’s] First and Fourth Amendment 12 claims,” Brown v. City of New York , No. 13-cv-1018, 2014 WL 13 2767232, at *10 (June 18, 2014), because “even if probable cause 14 did not actually exist,” “the officers directed plaintiff to 15 leave the area and go home, but plaintiff decided not to leave 16 the area, and told the officers that she could not go home,” 17 Brown, 2014 WL 2767232, at *9 (emphasis added), and “[t]hus it 18 was objectively reasonable for the officer[s] to believe that 19 probable cause existed to arrest [Brown],” id . The Court also 20 granted summary judgment for the Defendants on the excessive 21 force claim, concluding that their use of force was “reasonable 22 -8-under the circumstances.” Id. at *8. 1 Discussion 2 Before considering the legal issues on appeal, we pause to 3 observe that, even on the officers’ version of the events, the 4 arrest, the ensuing scuffle, and this lawsuit could very likely 5 have been avoided if the police had explained to Brown why they 6 were asking for her ID. Commendably, the officers initially 7 intended to issue a summons, rather than make an arrest, for an 8 offense, disorderly conduct, that was only a “violation” under 9 New York law, 4 an offense category less serious than even a 10 “misdemeanor.” 5 To use the summons procedure, they needed to 11 know Brown’s name and address. Their request for her to produce 12 some ID was entirely appropriate. So was her repeated inquiry, 13 “[O]n what grounds?” 14 At that point, the officers could have explained that they 15 needed her name and address from her ID in order to issue a 16

4 “Disorderly conduct is a violation.” N.Y. Penal L. § 240.20.

5 “‘Violation’ means an offense, other than a ‘traffic infraction,’ for which a sentence to a term of imprisonment in excess of fifteen days cannot be imposed.” See N.Y. Penal Law 10.00(3); “‘Misdemeanor’ means an offense, other than a ‘traffic infraction,’ for which a sentence to a term of imprisonment in excess of fifteen days may be imposed, but for which a sentence to a term of imprisonment in excess of one year cannot be imposed.” Id. 100.00(4). -9-summons. 6 Instead, as Officer Plevritis admitted in his 1 deposition, he grabbed Brown before he told her she was going to 2 get a summons. Then, still giving her no reason why they wanted 3 her ID, they told her only, as Officer Plevritis recounted, “[W]e 4 were going to give you a citation, but now you are going to 5 jail.” Neither officer claims that he explained to Brown that 6 they needed her name and address from her ID in order to issue 7 a summons, an explanation that likely would have avoided the 8 arrest, the s idewalk struggle, the pepper spraying, and this 9 lawsuit. 10 1. False Arrest Claim 11 Turning to the District Court’s dismissal of Brown’s claims, 12 we consider first her claim for false arrest. The District Court 13 concluded that the facts sufficed to arrest her “for disorderly 14 conduct for ‘congregat[ing] with other persons in a public place 15 and refus[ing] to comply with a lawful order of the police to 16 disperse.’” Brown , 2014 2767232, at *6 (quoting N.Y. Penal Law 17 § 240.20(6)). Viewing the facts in the light favorable to Brown, 18

6 The dissent states that Brown should have known that the officers needed her name and address in order to issue a summons. Dissenting op. **[6]** . Perhaps she should have. But once the officers arrested her, they were in total control of the situation, and it is their explanation to her that would likely have avoided escalation of the episode. -10-we are not as sure as Judge Forrest that the police officers 1 issued an “order” to disperse. Judge Forrest cited the 2 Defendants’ Rule 56.1 Statement of Undisputed Facts, ¶ 46, in 3 which they asserted that “they directed [Brown] to leave the area 4 and ‘go home,’” Brown , 2014 WL 2767232, at *6 (emphasis added), 5 but Brown’s response to that claim is that the officers told her 6 that she “should go home,” and that these words were spoken in 7 reply to her statement: “you don’t have anything to offer me, any 8 advice you can offer?” Plaintiff’s Statement of Undisputed Facts, 9 ¶ 46 (emphasis added). A fact-finder considering all the 10 evidence, including what Brown claims was the off icers’ rude 11 suggestion that she should “piss in the park,” would be entitled 12 to conclude that advice that a person should go home did not rise 13 to the level of an orderto disperse. 14 Nevertheless, we agree with the District Court that the 15 false arrest claim was defeated by the officers’ qualified 16 immunity claim, although we reach that conclusion by a different 17 route than that taken by the District Court. Whether or not 18 there was an “order” to disperse, the undisputed facts available 19 to be considered likely showed probable cause to arrest for 20 subsections 1 or 2 of section 240.20, which provide: 21 A person is guilty of disorderly conduct when, with 22 -11-intent to cause public . . . annoyance . . ., or 1 recklessly creating a risk thereof: 2 3 1. He engages in . . . tumultuous . . . behavior; 4 or 5 6 2. He makes unreasonable noise[.] 7 8 First, it does not matter that the officers arrested for 9 violation of subsection 6 of the disorderly conduct provision, 10 punishing failure to disperse. “‘[T]he probable cause inquiry 11 is not necessarily based upon the offense actually invoked by the 12 arresting officer but upon whether the facts known at the time 13 of the arrest objectively provided probable cause to arrest.’” 14 Jaegly v. Couch , 439 F.3d 149, 153 (2d Cir. 2006) (quoting United 15 States v. Jones , 432 F.3d 34, 41 (1st Cir. 2005)). 16 Second, under the “collective or imputed knowledge 17 doctrine,” Zellner v. Summerlin , 494 F.3d 344, 369 (2d Cir. 2007, 18 “‘an arrest . . . is permissible where the actual arresting . . . 19 officer lacks the specific information to form the basis for 20 probable cause . . . but s ufficient information to justify the 21 arrest . . . was known by other law enforcement officials 22 initiating . . . the investigation.’” id. (quoting United States 23 v. Colon , 250 F.2d 130, 135 (2d Cir. 2001)), and the other 24 officers “have communicated the information they possess 25

-12-individually, thereby pooling their collective knowledge to meet 1 the probable cause threshold.” United States v. Chavez , 534 F.3d 2 1338, 1345 (10th Cir. 2008). 3 In the pending case, the officer receiving the 911 call knew 4 that six people were trying to get into a closed Starbucks store 5 at 5 a.m. to use a bathroom, that they were “knocking on the door 6 really really bad trying to get in,” and “making nasty comments,” 7 and heard the assistant store manager tell an employee to lock 8 the doors because he heard banging on the outside doors. That 9 report provided probable cause to arrest whoever was outside the 10 store asking to get in to use the bathroom. Their banging on the 11 door provided a reasonable basis to believe that they were 12 engaged in tumultuous behavior, especially in light of the 13 assistant manager’s expressed concern that the doors needed to 14 be locked. 15 When Officers Naimoli and Plevritis arrived at the store 16 within minutes of hearing the dispatcher’s relay of the 911 17 information, saw three people still outside the store, and were 18 told by Brown that she wanted to use the bathroom, their on-the19 scene information, combined with the 911 call information, 20 provided a reasonable basis to believe that Brown was one of the 21

-13-people who had been banging on the store doors and doing so with 1 sufficient intensity to prompt the assistant manager to fear that 2 he needed to lock the doors. Even if these facts, collectively 3 known by the police, did not suffice to create probable cause for 4 a disorderly conduct arrest, it was “objectively reasonable for 5 the officers to believe that probable cause existed,” 7 and 6 “officers of reasonable competence could disagree on whether the 7 probable cause test was met.” Golino v. Ciy of New Haven , 950 8 F.3d 864, 870 (2d Cir. 1991). Those circumstances entitled the 9 arresting officers to the defense of qualified immunity. 8 Id. 10 The Plaintiff’s argument that New York law requires an 11 officer’s personal observation of facts alleged to support an 12 arrest for a violation, such as disorder ly conduct, see N.Y. 13

7 We have called such belief “arguable probable cause.” Zaleski v. City of Hartford , 723 F.3d 382, 390 (2d Cir. 2013).

8 The qualified immunity defense also defeats whatever claim Brown might be asserting to the initial brief detention that occurred, before announcement of the arrest, when Officer Plevritis grabbed her arm after she refused to provide an ID. Although Brown contends that she was entitled to refuse to produce an ID, her reliance on the coincidentally named case, Brown v. Texas , 443 U.S. 47 (1979), is unavailing. In that case, involving a prosecution for failure to produce an ID, the officers lacked even the “articulable suspicion,” Terry v. Ohio , 392 U.S. 1, 31 (1968) (Harlan, J., concurring), needed for a Terry stop, see Brown , 443 U.S. at 51-52. Here, the facts known to the officers, even if insufficient for an arrest, fully justified a Terry stop to ask for an ID, see Hiibel v. Sixth Judicial District Court , 542 U.S. 177, 185-89 (2004), and necessarily supported a qualified immunity defense to a damages claim based on that stop. -14-Penal Law §§ 10.00(1), (3), N.Y. Crim. Proc. Law 140.10(1)(a), 9 1 is unavailing. A defense of qualified immunity is not displaced 2 by a violation of state law requirements. See Davis v. Scherer , 3 468 U.S. 183, 194 & n.12 (1984); Clue v. Johnson , 179 F.3d 57, 4 62 n.3 (2d Cir. 1999). The officers retained a qualified 5 immunity defense to the claim that the arrest violated the Fourth 6 Amendment. 7 2. Excessive Force Claim. 8 The Fourth Amendment prohibits the use of excessive force in 9 making an arrest, and whether the force used is excessive is to 10 be analyzed under that Amendment’s “‘reasonableness’ standard.” 11 Graham v. Connor , 490 U.S. 386, 395 (1989). Determining 12 excessiveness requires “a careful balanci ng of the nature and 13 quality of the intrusion on the individual’s Fourth Amendment 14 interests against the countervailing governmental interests at 15 stake.” Id. at 396 (internal quotation marks omitted). This 16

9 New York distinguishes between an “offense” and a “crime.” For an “offense,” which includes a “violation,” N.Y. Penal Law §§ 10.00(1), (3), a police officer may arrest a person “when he or she has reasonable cause to believe that such person has committed such offense in his or her presence.,” N.Y. Crim. Proc. Law § 140.10(1)(a). For a “crime,” which means “a misdemeanor or a felony,” N.Y. Penal Law § 10.00(6), a police officer may arrest a person “when he or she has reasonable cause to believe that such has committed such crime, whether in his or her presence or otherwise, N.Y. Crim. Proc. Law § 140.10(1)(b). -15-balancing, the Court noted, “requires careful attention to the 1 facts and circumstances of each particular case, including” the 2 following three factors: 3 1. “[T]he severity of the crime at issue,” 4 2. “whether the suspect poses an immediate threat to the 5 safety of the officers or others,” and 6 7 3. “whether he is actively resisting arrest or attempting to 8 evade arrest by flight.” 9 Id. And, the Court continued, the “‘reasonableness’ of a 10 particular use of force must be judged from the perspective of 11 a reasonable officer on the scene, rather than with the 20/20 12 vision of hindsight.” Id. The Court also made clear that the 13 standard is one of objective reasonableness, and the officer’s 14 state of mind, whether evil or benign, is not relevant. 10 See id. 15 at 397. 16 Unusual for a claim of excessive force, most of the relevant 17 facts are undisputed: 18

10 Thus, it is not relevant whether the officers thought the amount of force used was really necessary or were provoked to use that amount of force because of the abusive language they contend Brown directed at them. In this respect, a claimed Fourth Amendment violation for using excessive force while making an arrest differs from a claimed Eighth Amendment violation for abusing a prisoner. See Whitley v. Albers , 475 U.S. 312, 320-21 (Eighth Amendment analysis turns on “whether force was applied [to prisoner] . . . maliciously and sadistically for the very purpose of causing harm.”). -16-• Officers Plevritis and Naimoli were arresting Brown for 1 disorderly conduct, a violation that; under New York law, is 2 subject to a maximum punishment of 15 days in jail. 3 4 • Officer Plevritis was 5' 10" and weighed 215 pounds; 5 Officer Naimoli was 5' 7" and weighed 150-160 pounds; Brown was 6 5' 6" and weighed 120 pounds. 7 8 • Officer Plevritis asked Brown to place her hands behind 9 her back so that they could apply handcuffs, and she refused to 10 do so. 11 12 • One of the officers kicked Brown’s legs out from under 13 her, causing her to fall to the ground. 14 15 • One officer succeeded in placing handcuffs on Brown’s 16 right wrist. 17 • Both officers struggled with Brown, forcing her body to 18 the ground. 19 20 • Officer Plevritis used his hand to push Brown’s face onto 21 the pavement. 22 23 • Brown’s left arm, without a handcuff, was under her as she 24 fell to the ground. 25 26 • The officers endeavored to take hold of Brown’s left arm 27 and bring it behind her to complete the handcuffing. 28 29 • While on the ground, Brown did not offer her arms for 30 handcuffing in part because she was trying to keep hold of her 31 phone and wallet and reach for the scattered contents of her 32 purse. 33 34 • Officer Plevritis twice administered a burst of pepper 35 spray directly to Brown’s face. 36

-17-• The officers completed the handcuffing while Brown was 1 still on the ground. 2 3 • Officer Naimoli was aware of techniques for applying 4 handcuffs to a reluctant arrestee, other than taking a person to 5 the ground. 6 The relevant disputed facts are: 7 • Brown says the pepper spray was administered one foot away 8 from her face; Officer Plevritis says the first dose was from two 9 feet away and the second dose from three feet away. It is 10 undisputed that the policy of the New York City Police Department 11 instructs of ficers not to use pepper spray closer than three 12 feet. See New York City Police Department Patrol Guide, Procedure 13 No. 212-95 (Jan. 1, 2000). 11 14 15 • Brown contends that she was trying to use her free arm to 16 pull down her skirt, which was exposing her behind. 17 18 Courts have regularly instructed that the three factors 19 identified in Grahamare relevant to the required balancing of 20 governmental interest against the intrusion upon the individual’s 21 interests, but they have had very little to say about how this 22 balancing is to be accomplished. Obviously, there are no 23

11 The dissent su ggests that the Patrol Guide standard is not relevant because the excessive force standard derives from the Constitution. Dissenting op. **[7]** . But the Supreme Court in Garner v. Tennessee , 471 U.S. 1 (1985), considered police regulations of several jurisdictions in making a constitutional ruling on excessive force, see id. at 18-19, a nd regulations of a single department have also been considered relevant to a constitutional ruling on excessive force, see , e.g. , Ludwig v. Anderson , 54 F.3d 465, 472 (8th Cir. 1995); Maddox v. City of Los Angeles , 792 F.2d 1408, 1414 (9th Cir. 1986). -18-numerical weights to be assigned, and the weighing metaphor has 1 been criticized for creating the illusion of precision. 12 All 2 that can realistically be expected is to make some assessment as 3 to the extent to which each relevant factor is present and then 4 somehow make an aggregate assessment of all the factors. As is 5 true of many methods of analysis that courts prescribe, the 6 excessive force determination is easier to describe than to make. 7 In this case, the severity of the crime is unquestionably 8 slight. The disorderly conduct offense is subject to a maximum 9 penalty of fifteen days in jail, and the underlying facts, even 10 as alleged by the officers, are loud banging on the door of a 11 closed store by someone wanting to use a bathroom, plus the use 12 of loud and nasty language. With respect to the second Graham 13 factor, Brown posed no threat whatever to the safety of the 14 officers or others. As for actively resisting arrest, Brown was 15 not fleeing, cf . Garner v. Tennessee , 471 U.S. 1, 6-8 (1985), nor 16 physically attacking an officer, cf. Sullivan v. Gagnier , 225 17 F.3d 161, 163 (2d Cir. 2000), nor even making a move that an 18 officer could reasonably interpret as threatening an attack, cf . 19 Tracy v. Freshwater , 623 F.3d 90, 97 (2d Cir. 2010). At most, 20

12 Salomaa v. Honda Long Term Disability Plan , 642 F.3d 666, 675 (9th Cir. 2011) ; McEvoy v. Spencer , 124 F.3d 92, 98 n.3 (2d Cir. 1997) ; Ford Motor Co. v. Ryan, 182 F.2d 329, 331-32 (2d Cir. 1950). -19-her “resistance” was a refusal to permit the easy application of 1 handcuffs by placing her hands behind her back. An aggregate 2 assessment of all three relevant Graham factors would seem to 3 point toward a determination of excessive force and, at a 4 minimum, to preclude a ruling against the victim on a motion for 5 summary judgment. 13 6 The officers could be entitled to a summary judgment only if 7 there existed a per se rule that an arrestee’s refusal to submit 8 to the easy application of handcuffs always permitted police 9 officers to use substantial force, including taking a person to 10 the ground and incapacitating her with pepper stray, to 11 accomplish handcuffing. We know of no such rule. Indeed, by 12 focusing only on resistance to the arrest, such a rule would 13 disregard the three-factor analys is that the Supreme Court 14 required in Graham . Even resistance sufficient to result in 15 conviction for res isting arrest does not preclude a finding of 16 “excessive force in effectuating the arrest.” Sullivan , 225 F.3d 17 at 166. 18

13 The dissent concludes that the force used was not excessive by focusing exclusively on the fact that Brown was resisting arrest (albeit in a minimal way). Dissenting op. **[11-19]** . The dissent’s “balancing” assigns no weight at all to the other Grahamfactors: the minor nature of Brown’s offense and the absence of any actual or threatened injury of the officers. -20-Here, on the undisputed facts, even shaded with the 1 officers’ account of the episode, no reason appears why, with 2 Brown standing, each officer could not have simply held one of 3 her arms, brought it behind her, and put handcuffs on her wrists. 4 Or they could have simply surrounded her, at least for a few 5 moments, making it clear that she could not leave until she 6 submitted to h andcuffing. 14 We do not mean to imply that the 7 availability of a less aggressive way of accomplishing an arrest 8 necessarily means that the technique that was used is thereby 9 shown to have been excessive. Police officers must be entitled 10 to make a reasonable selection among alternative techniques for 11 making an arrest. But when the amount of force used by two 12 police officers involves taking a 120-pound woman to the ground 13 and twice spraying her directly in the face with pepper spray, 14 the availability of a much less aggressive technique is at least 15 relevant to making the ultimate determination of whether 16 excessive force was used. 17 The assessment of a jury is needed in this case. Even 18 though most of the facts concerning the application of force are 19

14 The dissent suggests that pointing out the minor nature of Brown’s offense, which is a relevant Graham factor, leads to “free[ing] suspects resisting arrest for minor offenses.” Dissenting op. **[17]** . The available means of effecting Brown’s arrest with less aggressive force dispel that claim. -21-undisputed, a jury will have to decide whether Fourth Amendment 1 reasonableness was exceeded when Brown was taken to the ground 2 after refusing to put her hands behind her back and when officers 3 struggled with her on the ground and used pepper spray to 4 accomplish handcuffing. And even if Brown’s unwillingness, while 5 standing, to offer her hands for handcuffing and, while on the 6 ground, to offer her left arm to complete the handcuffing is 7 found to be resisting arrest, that non-threatening form of 8 resistance would be only one factor to be considered along with 9 the minor nature of the disorderly conduct violation, the absence 10 of actual or threatened harm to the officers, and the degree of 11 force, including taking her to the ground and twice applying 12 pepper spray. “The fact that a person whom a police officer 13 attempts to arrest resists . . . no doubt justifies the officer’s 14 use of some degree of force, but it does not give the officer 15 license to use force without limit.” Sullivan , 225 F.3d at 165-66 16 (emphasis in original)
. 17 The continuum along which the excessiveness of force in 18 making an arrest is assessed is not marked by visible signposts. 19 A court’s role in conside ring excessive force claims is to 20 determine whether a jury, instructed as to the relevant factors, 21 could reasonably find that the force used was excessive. In this 22 -22-case, the majority and the dissent differ on that legal issue. 1 That division, not uncommon in cases considering the sufficiency 2 of evidence, leaves the factual determination of excessiveness 3 to a jury, whose collective common sense, informed by their life 4 experiences, may well exceed that of all the members of this 5 panel. 15 6 3. First Amendment Claim 7 Brown’s First Amendment claim – that she was arrested in 8 retaliation for her attendance at the Occupy rally in Zuccotti 9 Park – was properly dismissed. There is no evidence to support 10

15 The dissent speculates, without any support in the record, that, in the event that a jury finds the police officers liable, the judgment will be paid out of their children’s college funds. Dissenting op. **[12]** . For support, the author of the dissent cites only his own previous speculation, see Gonzalez v. City of Schenectady , 728 F.3d 149, 162 (2d Cir. 2013). A far more likely speculation is that a payment, if any, will be made by the City after a settlement. See, e.g., “New York City Settles With 6 Occupy Wall Street Protesters Pepper-Sprayed by the Police,” New York Times , July 6, 2015 . And, if a jury were to hold the officers liable for damages, payment is almost certainly going to be made by the City by way of indemnification or by the police union. See Richard Emery & Illan Margalit Maazel, Why Civil Rights Lawsuits Do Not Deter Police Misconduct: The Conundrum of Indemnification and a Proposed Solution , 28 Fordham Urban L. J. 587 n. 2 (2000). A study for the six years from 2006 to 2011 revealed that $348,274,595.81 was awarded in civil rights settlements and judgments against New York City police officers, of which $114,000 (0.03 percent) was required to be paid by police officers, and the study does not indicate whether some or all of even this amount was paid by the police union. See Joanna C. Schwartz, Police Indemnification , 89 N.Y.U. L. Rev. 885, 913, 962 (2014). -23-that claim. 1 Conclusion 2 The judgment is affirmed in part, reversed in part, and 3 remanded for further proceedings. 4

-24-DENN IS JACOBS, C ircuit Ju dge, concurr ing in the judgment in part and

dissenting in part:

I concur in the judgment insofar as the majority affi rms dismissal of the First Amendment retaliation clai m and the claimfor false arr est. As to the claimof exce ssive force , the majority remands for a jury trial to determine whethe r the officer s’ use of for ce, in res training a suspect who was actively resisting arre st, was so objectively unreason able that it vi olated the Fourth Amendment to the United States Cons titution--and, accordingly, whether two officers of the Ne w York City Poli ce De partment (“NYPD”) sh ould be pers onally l iable to her for money damages. Fr om that regrettable decision, I resp ectfully dissent.

I As the majority characterizes its recitation of the facts, those in dispute are pres ented “in the light m ost favorable to the Plainti ff, ImaniBrown.” Maj. Op. at 3. But the only facts relevant to the use of for ce are undisputed, and are capture d by high-qual ity vi deo footage. The majority essentially concedes as much. See

1Maj. Op. at 16 (“Unusual for a clai m of excess ive force, most of the re levant facts

are undisputed.”). As to the visual recor d, “[t]here are no allegations . . . that thi s videotape was doctored or altered in any way, nor any conte ntion that what i t depicts differs fr om what actual ly happened.” S cott v. Harris, 550 U.S. 372, 378 (2007). Brown’s e xcess ive force claim there fore must be con sidered at summary judgment “in the light depict ed by the videotape.” Id. at 380-81. Brown’s claim does not survive the witness of your e yes. Since I am “happy to allow the videotape to speak fo r itself,” id. at378 n.5, I have made the footage availabl e online. A textual play -by-play of the video is supplied in an 1 Appendix to this opinion. As to the use of force , the only source of the facts I rely upon (other thanthe video) is Brown’s own tes tim ony. The majority and Imostly ag ree on what happene d in the prequel to the video. Around 5 a.m., the manager of a Starbucks in lower Manhattan called 911. The Starb ucks had not yet opene d, and people wer e banging on the glass

The cleares t, longest video is avai lable at the foll owing link: 1 http://www.ca2.uscour ts.gov/Do cs/Pl's_Ex%2018_OWSC raigCard7-65.mp4 See Ex. 18 to Decl. of. Josh ua S. Moskovitz (“Video”). Two shorter videos provide some additionalcontext. Se e Ex. L to De cl. of Andrew Lucas; Ex. 20 to Decl. of. Joshua S . Moskovitz. Al l of the video footage is avai lable for download on the “Multi media Resources” se ction of the Court webs ite’s “Decisions” page. See http://www.ca2.uscour ts.gov/multi media_resource s.html 2demanding access to the bathr oom. The coffee sh op was five blocks from

ZuccottiPark, where anti-Wal l Street demonstrator s had be en camped for some days. Two NYPD officers were de spatched to the S tarbucks. They par ked close by, and obs erve d a group gathere d in front of the coffee shop. Bro wn approache d the police car and made known that she was among those see king entry; spe cifical ly, she asked police guidance about where she could find an open bathroom. Appare ntly, the poli ce did not consider giving such advice to be among their duti es. Whe n Brown wen t back to the door, the po li ce appr oached her. As the majority concludes, the police had at least arguable prob able cause for arr est. When the p olice asked her for identifi cation, she balked, and ther eby preve nted the enc ounter fro m being resolved on the basis of a summons. When the officers the n demanded that Brown pr esen t her hand s to be cuffe d for arr est, she again balked, this tim e grab bing hold of a metalbar of the scaffolding erected in front of the store . The video begins ther e. As the video evidences : Brown re sisted arre st; the police subdued her using modul ated, graduated levels of force ; she was war ned at each s tage what measure would follow; she was spoken to with forceful profe ssionalism

3throughout; the first shor t release of p epper spray was pr ecede d by a warning;

the peppe r spr ay had no appare nt effect on he r re sistance; she was warned that a further b urst would be admini stere d; she was unde terre d; and only shortly after the secon d applicati on did she allow her hands to b e cuffed. After she complied, she was lead to the b ack seat of a police car; when s he emer ged a few moments later, her h ands wer e no longer cuffe d together. As s he admitted at depositi on, she fully understood the or ders that sh e re sisted:

Q. In sum and substance, wer e they telling youto give them your hands? A. Yes. Q. In sum and substance, wer e they telling youto stop resisting? A. They did, yes. Ex. F to Lucas De cl. (“Dep. of Imani Brown”), 52:25-53:5. That documented sequence of e vents is all that is needed to affirm summary judgm ent on the

exce ssive-force claim

. The majority opinion does not actually q uestion that storyline, but it inj ects critici sms of police techniqu e and tone that se em to me mostly irrelevant, and awfully unfair:

4! The majority com pares Brown’s he ight and weight (and sex) to the height and weight (and sex) of the two poli cemen, with more than a suggestion that their struggle to subdue her was unsporting and unchivalrous or (alternatively) insufficiently m asterful and competent. See , e.g., Maj. Op. at 21 (criti cizing the police for “taking a 120-pound woman to the ground and twice spraying her directly in the face with pepper spray”); s ee also id. at 17 (li sting Brown’s and the officers ’ height and weight). The size comparison sharp ly cuts the other way, of cour se. Bro wn was outnumbered b y trained NYPD officers who were bigger than she was: the easy infer ence is that, but for their profe ssional restraint, they could have subdued her p romptly and compl etely with effor tless brutality.

! The majority ci tes the answe rs made by the NYPD officers to Brown’s r equest for guidance on local toi let facil iti es. One answer ed, “What do we look li ke, the potty police?” The other sugges ted she “piss in the park.” (Of cour se, as had beenwidely reported, Zuccotti Park had bee n turned into something li ke an opensewer by those

5who had bee n encamped ther e; so the po li ce re sponse s might be deemed a commentary on Br own and the other s in her gr oup. The police should be free to perce ive irony from a self-imagined revolutionary against corporate America who was b egging relief at Starbucks C orpor ation.) But rudeness or sarcasm (eve n exce ssive rudene ss or s arcasm) is not force, let alone ex cessive for ce.

! The majority faul ts the police for not res olving the encounte r on the basis of a summons. But it was Brown’s r efusal to identi fy hers elf that foreclosed that option. The majority thinks the police should have then e xplained why they wanted her name, and assumes (without basis) that i t is “very likely,” Maj. Op. at 9, that the encounter would have resolved itself peacefully had this information beenadequately com municated. But it was suffici ently obvious why the police wanted identifi cation; she could scarcely have thought that they wanted to send he r tickets to the policemen’s ball.

6! The majority i mpli es that the pep per s pray was he ld too cl ose to Brown, and that good policing t echnique would cal l for more distance. See Maj. Op. at 18 (citing the New York C ity P olice Depar tment PatrolGui de). But at least the first burst was issued when the officer holding the can was holding on to Brown at the same tim e, so that he could not have furthe r distanced the sp ray-can withouta selfie stick. In any even t, we are not interpr eting the NYPD Patrol Gui de, but the United States C onstituti on, which has nothing to say about the optim al di stance fr om which an officer should discharge pep per s pray during a physical struggle. Moreover, the first discharge was insufficient to overcome resistance ; the secon d eventually subdued her; an d at the precinct afterward, s he declined the oppor tunityto wash out her eye s.

! My coll eagues lament that the whole episode could have bee n avoided if the poli ce had done this or that, or used some othe r technique. Maj. Op. at 9, 10 n.6, 21. But surely the but-for c ause of the tussle was Brown, h er r efusal to give pedigree information

7neede d for a summons, and her dogged re sistance to the lawful

arre st she had p rovoked b y her violation of the law.

In summ ary, the police had prob able cause to arr est; they wer e re fused identifi cation that coul d have obviated any physical encounter ; and they applied modul ated force an d gave warnings in advance at eachstep, treating Brown with allthe courtesy a cr iminal suspect can re asonably ask for while physically resisting arre st. Moreover, the entire e ncounter, fr om first to l ast, apparen tly had li ttl e adver se effe ct on Brown, phys ically or psychologically. When sh e arr ived at the police stati on, she e xplici tly refused medical assistance. Asked by a member of the Emergen cy Medical Services team if she wanted her eyes r insed, Brown declined. The day after he r arr est, Brown was happily cl aiming the glamor of having spent a night in jai l after resisting arre st. In an online chat wi th a friend, Brown gloated: Friend: imani i you ai ight?

Brown: yeah Brown: I was maced and shit tho

8Friend: woahh Friend: u jusst refused to move? Brown: yes it’s a long story Brown: I resisted arr est Ex. 1 to Supp. D ecl. of Andrew Lucas. The next day, another friend asked Br own if she planned to re turn to the protes ts:

Friend: are you going to keep pr otesting? Brown: of course Brown: I just w as going to lay l ow tonight Brown: I was just released yester day am Brown: but now I’m regretting going hom e Brown: I want to be out there! Ex. 2 to Supp. D ecl. of Andrew Lucas.

II “The Fourth Amendment prohibits the use o f unreas onable and ther efore

exce ssive force by a police officer in the course of effecting an arr est.” Tracy v. Fresh water, 623 F.3d 90, 96 (2d Cir. 2010). In deciding whether a particular use of

9force was reaso nable, we look to the totali ty of the circumstances, “including the

sever ity of the crime at i ssue, whe ther the s uspect pose s an immedi ate threat to the safety of the officers or o thers, an d whether he is actively resisting arrest or attempting to evade arr est by flight.” G raham v. Conn or, 490 U.S. 386, 396 (1989). Some of those f actors might be helpful (or not) in a given case, but the ulti mate qu estion is always the same: “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them.” Id. at 397. In the end, “all that matters is whethe r [the officer s’] actions were

reaso nable.” Scott, 550 U.S. at 383. “[W]e are careful to evaluate the recor d ‘from the per spective of a

reaso nable officer on the scene , rather than with the 20/20 vision of hindsight.’” Tracy, 623 F.3d at 96 (quoting Graham, 490 U.S. at 396). “‘Not every push or shove, e ven if it m ay later seem unnece ssary in the pe ace of a judge’s chamber s,’ viol ates the Fourth Amendment.” Graham, 490 U.S. at 396 (quoting Johnsonv. Gli ck, 481 F.2d 1028, 1033 (2d Cir. 1973) (Friendly, J.)).

10III

Brown actively resisted throughout the pr ocess of h er ar rest. For that 2

reaso n--eventhat reason s tanding alone--the officers wer e per mitted to use force to subdue her, as a matter of law: “[t]he fact that a person whom a police officer attempts to arrest re sists, threatens , or assaults the officer no doubtjustifi es the officer’s use of somedegre e of force .” Sulli van v. Gagnier, 225 F.3d 161, 165-66 (2d Cir. 2000) (first emphasis added ); see also Tracy, 623 F.3d at 97 (“Tracy appeare d to failto complywith a di rect orde r and to instead actively resist arre st, thus neces sitating a forceful response .”). At the same tim e, re sistance to arre st “does not give the officer license to use force without

li mit .” Sulli van, 225 F.3d at 166. When a suspe ct resists arr est, “[t]he force used by the of ficer must be re asonably related to the nature of the resistance and the force used, thre atened, or reaso nably perce ived to be threatene d, against the officer.” Id. In an online chat, Brown admitted: “I resisted arr est.” Ex. 1 to Supp. D ecl. 2 of Andrew Lucas . The majority, however, hedge s on that point, resor ting to scare quotes. See Maj. Op. at 19-20 (“At most, her ‘re sistance’ was a re fusal to permit the easy applicati on of handcuffs b y placing her hands b ehind herback.”). Scare quotes or none, any de nial that Brown was r esisting arres t “is so utterly discredited by the r ecord that no r easonab le jury could . . . beli eve [it].” Scott, 550 U.S. at 380. 11No re asonable jury could find an abuse in this case--let alone misconduct

so unre asonable as to justify “personal liabil ity” against Officer Justin Naimoli and Officer Theodo re Plevritis, which, as this Court has said, is payable from the officers’ “savings, home e qui ty, and [their children’s] college funds.” Gonzalez v. City of Schene ctady, 728 F.3d 149, 162 (2d Cir. 2013). The majority relies on what it cal ls “li kely speculation” that “a payment, if any, wi llbe made by the City after a settlement.” Maj. Op. at 23-24 n.15. Of course, we typicallyand appropr iately adopt an attitude of complete indifference to the questions of (1) whethe r a case is li kely to settle, and (2) what private arrangements, if any, defe ndants may have entere d into to spread the (poten tial ly ruinous) financi al risk of an adverse civil judgment. The maj ority’s expectation that the City wil l both settle this case and then indemnify the officers may all eviate somewhat the danger o f infli cting pers onal li abili ty on the police officers; but it warps applicati on of the legal standard, which ceas es to be individual li abili ty under se ction 1983. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 676 (“Because vicarious liabi li ty is inapplicable to Bivens and § 1983 suits, a plainti ff must plead that each Government-official defendan t, through the official ’s own indivi dual acti ons, has violated the Constitution.”).

12IV

The use of pe pper s pray was the climax of Brown’s en counter with the police, and ultimately ended he r re sistance. “Unquestionably, infliction of pepper spray on anarre stee has a variety of incapacitating and painfuleffects.” Tracy, 623 F.3d at 98. That is of course its uti li ty. “[A]s such, its use constitutes a signifi cant degree of force.” Id. So “it should not be used lightly or gratuit ously against an arres tee who is complying with poli ce commands or other wise poses no imm ediate threat to the arr esting officer.” Id. But Brown was notcomplying with the officers’ (lawful) com mands--she

was ener getically resisting arre st. That fact, standing al one, willtypical ly ju stify the use of significant force, including pepper spr ay. But here, the bursts of pepper spray wer e pre ceded b y sever al minutes of physical resistance, r epeated order s to “Stop re sisting!”, and then specificwarnings about peppe r spr ay--“GIVE US YOUR HAND S, OR YOU’RE GONNA GET PEPP ER SPRAYED RIGHT NOW! GIVE US YOUR HANDS !”--all of whi ch failed to subdue Brown. And as Brown admitted at depositi on, she unde rstood the officer s’ warning that she would be pepper spraye d a second time if she did not offer he r hands . See Dep. of ImaniBrown 54:21-24 (“Q: The second time you were pe pper s prayed, did the

13officers warnyou that i f you did not gi ve them your hands you would be pe pper

spraye d? A: Yes.”). The s econd bur st of peppe r spr ay was appare ntly the measure that worke d: she finally offered he r arms, at least in part, because she “was in physical pain” and she “didn’t want t o be pe pper s prayed again.” De p. of ImaniBrown, 56:11-15. Ther eafter, the officers applied only minimalphysical force. The police can, in their discretion, resor t to non-lethal, but serious, threats of force, in or der to stop (or better ye t, preven t) a suspect from re sisting arrest. But such a threat willonly be effe ctive if offi cers are pe rmitt ed to actually use the threatene d force. We should not constitutionally require police to back off just because a lawfularre st encounter s stubbor n physical resistance. C f. Scott, 550 U.S. at 385-86 (“[W]e are loath to l ay down a rule requiring the police to al low fleeing suspects to get away whene ver they dr ive so reckless ly that they put other pe ople’s lives in danger. . . . The Co nstituti on assure dly does not impose this invi tati on to impuni ty-earned- by-re cklessnes s.”) (emphasis omitted). I t is eminently reasonable for an officer to (1) warn a r esisting suspect that the level of force is about to be marginally escalated, then (2) actually use the force threatene d when r esistance continues. Reas onablenes s is allthat the Fourth

14Amendment requires; and re asonablene ss is a test that, at the safe en d, is a matter

of law. See, e.g, Tracy, 623 F.3d at 97. In Tracy v. Freshwater, an arre stee named Tracy got into a struggle with a policeman nam ed Fre shwater. Id. at 97-98. The issue cr iti cal to the excess ive force claim was whether Tracy was already handcuffed whe n Fres hwater pepper -spraye d his face. Se e id. at 98. We remanded for a trial because “a

reaso nable juror could [have found] that the use of peppe r spr ay deployed mere inches away from the face of a defendan t already in handcuffs and offering no further active resistanceconstituted an unreasonab le use of force .” Id. (emphasis added). This case is the mirror image of Tracy. We kno w from the video that Brown was not“already in handcuffs.” Id. And, as she admitted--and is obvious from the video--she was “offering . . . furthe r active resistance ,” id., when the officers (1) thr eatened to use pepper spray, and the n (2) made good on that threat.No material fact i s genuinely disputed. No trial i s nece ssary.

15V

As the majority ul tim ately concedes, ther e is no “least res tricti ve alternative” requirement when making an arrest: “Police officers must be en titled to make a reasonab le selection among al ternative techniques for making an

arre st.” Maj. Op. at 21. Certainly, the poli ce are not restr icted to the measures and techniques suggested to us in “the peace of a judge’s chambers ,” Graham, 490 U.S. at 396 (internal quot ation marks omi tted)--pace the majority’s prefer ence for other measures, s ee Maj. Op. at 9, 10 n.6, 21. The majority opinion relies on its weighing of the three Graham factors--a determination that i s, as the majority observe s, “easier to describe thanto make.” Maj. Op. at 19. However, Graham itself confirms that these factors ar e intended to be a rough guide, and nothing more. They n eed not all be examined closely in

ever y case; other unli sted factors might be re levant; and the relative im portance of any one factor wil l vary. 490 U.S. at 396 (“the test of re asonablene ss . . . requires care ful attention to the facts and circumstances of eachparticular case, including ” the three factors) (emphas is added); see also Tracy, 623 F.3d at 96 (in evaluating reas onablenes s, “we are guidedby consider ation of at leastthree factors”) (emphas es added). That is be cause, ultim ately, “al l that m atters is

16whether [the officer’s] ac tions were r easonab le.” Scott, 550 U.S. at 383. We

consider the Grah am factors only to the extent they sh ed light on whether a particular use of force was reaso nable. The majority em phasizes “the s ever ity of the crime at i ssue,” Graham, 490 U.S. at 396, and obse rves that Br own’s “disorder ly conduct offense is subject to a maximum penalty of fi fteen days in jail.” M aj. Op. at 19. But unl ess the Constitution requi res the police to free suspe cts res isting arre st for minor offense s, this factor is of no weight in thi s case, in which the police began b y seeking pedigre e information for a summons, and overcame phys ical resistance by calibrated steps, pr ecede d by warnings, without gratuit ous violence. The one Graham factor that obviously and directly appli es he re is whethe r the suspe ct “is acti vely resisting arres t.” Graham, 490 U.S. at 396. That factor i s

esse ntial ly i gnored b y the majority, which obser ves dismissively that “Brown was not fleeing, nor physically att acking an officer, nor e ven making a move that an officer could reaso nably interpret as thr eatening an attack.” Maj. Op. at 19 (internal citations omitted). So? Sh e was also not brus hing her tee th. What she

was doing, however, was “ac tivelyresisting arre st”; and she did that by physical struggle for as long as sh e possibly could. Even though this factor is not

17dispositi ve (none of the Graham factors is), it strongly supports the use o f force

here

. The majority al so believes that we ne ed a jury to decide whetherit was

exce ssive force to wrestle Brown to the gr ound and then “str uggle[] with her ” in order to apply handcuffs. See Maj. Op. at 22 (“[A] jury wi llhave to decide whether Fourth Amendment reaso nablenes s was ex ceede d when Br own was taken to the ground after refusing to put her h ands be hind her b ack and when officers str uggled wi th her onthe ground and use d pepper spray to accomplish handcuffing.”). But the fact that a suspect “activelyresist[s] ar rest,” b y itself, “neces sitat[es] a forceful res ponse.” Tr acy, 623 F.3d at 97. That includes forcefully bringing her to the sidewalk, the ensuing struggle, and more--as

neces sary to effe ct the arre st. According to the majority, “[n]o reason appe ars why, with Brown standing, each officer could not have simply held one of her ar ms, brought it behind her, and put handcuffs on he r wrists.” Maj. Op. at 21. But the video shows why the p olice took her to the ground: Brownrefuse d to give up her hands, and instead gr abbed h old of the metalstructure of a sc affolding. In her own words: “I was standing there and not offer ing them my arms.” Dep . of

18ImaniBrown, 50:13-14. The majority has no fair ground for offering technical

advice on whether it woul d have be en be tter and safe r if the police had pried back Brown’s fingers one -by-one offthe metal bar, or used an y other for ceful method that mi ght have exp osed Br own (or the officer s) to different r isks. In any event, the r elevant question i s whether the use of for ce was objectively

reaso nable--not whethe r judges can identify alternative methods. The Constitution does not enforce a prefe rence among techniqu es sho rt of exce ssive force. * * * The only exces sive features o f this case are the elaborate constituti onalization of the routine arre st of a disorder ly individual, the unfair attack on the profes sional reputation of two NYPD officers, the abs urd waste of judici al ti me that has ensued an d wil l foll ow on remand, and the imposi tion on the valuable ti me of jurors.

APPENDIX The video begins in the middle of the encounter. Just after 5 a.m., at the intersection of Barclay and Broadway in lower Manhattan, Brown is standing on

19a sidewalk. She is facing away from a Starbucks coffe e shop, leaning against

metal scaffolding. Two NYPD officers, O fficer Justin Naimol i and Officer Theodore Plevriti s, stand be hind her, wor king to restrain herarms. Officer Plevritis shouts to a bystander: “No ! She’s under ar rest!” Br own is holding a cellphone and a purse in he r right hand. Sh e pulls her right arm in toward her body, but Officer N aimol i i s able to close metal handcuffs around he r right wrist. Turning her body 90 degr ees to the left, now facing Officer Plevritis, Brown yells: “I just need to use the fucking bathroom!” She s lowly unwinds her body, turning back the r ight, and pul ls her left arm free momentarily. Officer Plevriti s reac hes to pull Brown’s fre e arm back within reach, telling her, in a measured tone : “Stop moving your arms. Stop res isting, miss. Stop resisting. Miss, stop resisting.” Brown does not stop res isting. She gr abs the metal scaffolding wi th her free hand. Officer Plevritis reache s down, pre sumably to pry her grip loose fr om the scaffold, when s he twirls once more, 180 de grees to the right, and steps bac k toward the Starb ucks. Officer Plevritis tell s her : “Alright, you are going to the ground now.”

20Officer Naimolistarts to apply press ure to the fr ont of her legs, wh il e both

officers, standing be hind her, pushher s houlders for ward, well above her center of gravity. Officer Naimol i appears unab le to take her to the ground, s o Officer Plevriti s winds up, and swings his leg forcefully int o Brown’s s hins. The laws of physics do their work: Br own’s body r otates forward, h er waist the appr oximate pivot point. For an instant, she is par all el to the sidewalk, a few feet off the ground. Then s he falls. See Video at 0:20. The struggle continues. After r olling on the ground a b it, Brown coil s into a crouch, kne es on the ground, leaning forward. Both officer s hover over he r back. Officer Plevritis appears to have a solid grasp of Brown’s left arm, and he pull s it up behind her, b ent shar ply at the elbow. Brown then spr ings half-way up out of her cr ouched position, and waddles forward, with both officers holding on to her b ack and arms. Brown is quiet at thi s point, but a crowd is gathering, and someone s houts, off-camera: “Officer s, can you please let her go? Can you please let her go?” B oth officers, sometimes in unison, repeate dly order Br own to give up her hands , and to stop res isting: “Put your han . . . Stop it. Stop resisting, Miss. Stop res isting. Stop re sisting. Stop resisting. Stop it m a’am. Stop resisting. Stop re sisting.”

21A voice crackles over the radio, and Officer Plevritis lets go of Brown’s left

arm--which remains free of handcuffs--to re ach back for the radio on his hip. The crowd growing larger, h e calls for assistance: “C an I have another unit over here to this l ocation?” Officer Plevriti s tries to regain his grip over Brown’s left arm, but she wriggles fre e again, and rolls over back to the gr ound. For a br ief moment, Brown tucks her fr ee ar m back underne ath her b ody. “Miss, stop resisting.” Brown asks : “What am I doing to you?” The officers e scalate their use of forc e: Officer Plevritis yell s, “Stop it!”, as he strikes Br own in the lower back with his knee. “D on’t kick m e,” she says. Officer Naimolithen makes two swee ping movements with his left arm, seemingly trying t o dislodge Brown’s grip from her purse, or her ce llphone. The phone e nds up on the s idewalk, a few feet away. The officers continue to plead with Brown to comply, now employing a l ouder, more aggr essive tone: “S top resisting! Stop it! Stop resisting!” 3 At some point, the camera briefly turns away from the str uggle to a friend 3 of Brown’s, who de scribes what happene d in the moments preceding the ar rest. His commentary is l argely irrelevant to the ex cessive for ce claim, but it does go a long way to confirming that Brown was one of the indivi duals banging on the glass--rather than some unfortunate victimof mistaken identi ty:

She wante d to use the bathr oom at Starbucks. She was banging on 22Brown continues to struggle with the officers fr om the ground. The

officers ar e trying to pullher h ands together behind her back, so the h andcuffs,

curre ntly hanging around her r ight wrist, can be secure d to her left. Officer Naimol i says, “Don’t try to bite me!” It i s not clear from the video whe ther, in fact, Brown was trying to bite anyone, but she resp onds, ex asper ated: “I’m not trying to bite you!” For a mom ent, Officer Plevritis holds her head against the sidewalk. Members o f the (stillgrowing) crowd chime in from ti me to ti me: “What’s the point of doing thi s?” Then, sar castically mocking the NYPD’s motto: “Courtes y, Professionalism, Respect!” Officer Naimoliresp onds in kind: “Yep, she’s giving us her r espe ct.” The struggle continues, and Brownsays something like “I ’m just trying . . . to pullmy . . .”--then she tries to r ise to a kneeling positi on. The officers wrestle her b ack to the ground, and Br own lets out a brief whimper. Officer Plevritis is trying to pul l her left arm behind herback, but Brown has it pl anted secur ely

the door, asking them to use their discre tion and let her go to the bathroom, and they called the police on her. . . . 23underne ath her b ody. The officers r aise the intensity and the volum e of their

voices once more : “STOP RESISTING!” Brown does not stop res isting. She c ontinues to struggle. The officers then threaten to e scalate the level of force again, now shouting loudly: “GI VE US YOUR HANDS , OR YOU’RE GONNA GET PEP PER SPRAYED RIG HT NOW! GIVE US YOUR HANDS!” Se e Video at 1:36. Brown does not give up her hands . She con tinues to struggle for the nex t 8 or 9 se conds--the time it t akes Officer Plevriti s to reach b ack and unholster his pepper spray. He sprays Br own in the face, from about a foot away, for ab out

one se cond. See Video at 1:48. For a moment, Brown appear s to be going back to the gro und. Her s kirt is off-kilter; he r bar e buttocks br iefly exposed to the gather ing crowd. Someone offcamera asks an ( inaudibl e) question, to which Offi cer Plevritis responds , loud and frustrated: “H ow about putting her hands be hind her b ack?!” Brown then starts rocking back and f orth from her knees , as the crowd p ull s in tighter around the struggling trio. Offi cer Plevritis reacts by letting Brown go, springing to his feet, and yelling at the crowd: “Get away from her e! Back up! Back up! Back up!

24Everyone back up!” Officer N aimol i i s now alone in his attempted restraint of

the (still -struggling) Brown. From her kne es, Bro wn continues the rocking motion. Her hands remain in front of her, only her right wrist in cuffs. Officer Plevritis shouts again: “Stop it! G et on the ground!” Br own does not comply. Officer Plevritis, now standing in front of Brown, war ns her : “You are gonna ge t itagain.” But Brown’s behavior does not change , and Officer Plevritis sprays he r with pepper spray a se cond tim e, again in the face, for less than a second, fr om a distance that i s difficul t to discern fr om the video (no more than one foo t). See Video at 2:12. The officer s continue to shout: “Put y our hands b ehind your back! S TOP RESISTI NG! Put your hands b ehind your back!” Finally, Brown appe ars to re lent. Someone sho uts, off-camera: “You guys are fucking cowards!” At last, the officers s ecure the handcuffs on Br own’s left wrist. Two new officers appe ar on camera, ap paren tly having just arrived on the

scene . One sh outs loudly and repe atedly at the bystanders (including the camera operator ) to move back. Brown is doubled over on her knees . She s houts, pres umably t o the officers: “C an you please pull my skirt down so I’m not

25flashing the fucking street please?” One of the officers te ll s Brown that she

“should have thought of that,” and order s her to “stand up.” Brown re fuses to cooperate : “No!”, she shouts from the groun d. Officers N aimol i and Pl evritis forcibly pullher to a standing position, and walk her, now secur ely handcuffed, to a nearb y police cruiser. Another officer is stillshouting at the nearby onlookers: “Get back! Move b ack!” Officer Plevritis orders Br own to “get in the car” and to “sit down in the car,” as sh e appear s to lean her uppe r body out of the door. Officer Plevriti s force s her back into the seat, and se cures the door. The footage skips ahead a moment, and Brownis lead out of the car by Officers Plevritis and Naimol i, whil e at least three othe r officers look on (stil l at the same interse ction). For reason s that are not clear, the handcuffs r emain attached to Brown’s r ight wrist, but now they dangle alone--her left hand is free again. Officer Plevriti s asks he r to “step out and turn ar ound.” Officer Naimoli tells her to “step out of the car an d put your hands be hind her b ack.” This ti me, Brown turns ar ound without objecti on, and offer s herhands to be re-han dcuffed. Officer Plevritis explains: “Now if you wou ld have done this, you wouldn’t have gotten spraye d.” The officers s ecure the handcuffs, again, and Brown is returne d, qui etly, to the back seat of the police car.

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