In Their Individual & Off. Capacities the Fat Black Pussycat John Doe, 7, Representing an Emp. of the Fat Black Pussycat Howard Safir, Former Police Comm'r of the City of New York, in His Individual & Off. Capacity Sebastian Mannuzza, Police Officer, Shield No. 23890, in His Individual & Off. Capacity, 380 F.3d 106 (2d Cir. 2004). · Go Syfert
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In Their Individual & Off. Capacities the Fat Black Pussycat John Doe, 7, Representing an Emp. of the Fat Black Pussycat Howard Safir, Former Police Comm'r of the City of New York, in His Individual & Off. Capacity Sebastian Mannuzza, Police Officer, Shield No. 23890, in His Individual & Off. Capacity, 380 F.3d 106 (2d Cir. 2004). Cases Citing This Book View Copy Cite
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cited 3× by 3 distinct cases · 2 courts · …e have permitted a plaintiff's claim to survive summary judgment on allegations that, during the course of an arrest, a police officer twisted her arm, 'yanked' her, and threw her up against a car, causing only bruising. at p. 108 ✓
194 citation events (194 in the last 25 years) across 10 distinct courts.
Strongest positive: Scoma v. City of New York (nyed, 2021-01-22)
Treatment trajectory · 2004 → 2026 · click a year to view as-of
2004 2015 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Scoma v. City of New York
E.D.N.Y · 2021 · signal: see · quote attribution · 1 verbatim quote · confidence high
e have permitted a plaintiff's claim to survive summary judgment on allegations that, during the course of an arrest, a police officer twisted her arm, 'yanked' her, and threw her up against a car, causing only bruising
examined Cited as authority (verbatim quote) Kochan v. Kowalski
W.D.N.Y. · 2019 · signal: see also · quote attribution · 1 verbatim quote · confidence high
e have permitted a plaintiff's claim to survive summary judgment on allegations that, during the course of an arrest, a police officer twisted her arm, 'yanked' her, and threw her up against a car, causing only bruising.
examined Cited as authority (verbatim quote) Jackson v. Mastrangelo
W.D.N.Y. · 2019 · signal: see · quote attribution · 1 verbatim quote · confidence high
e have permitted a plaintiff's claim to survive summary judgment on allegations that, during the course of an arrest, a police officer twisted her arm, 'yanked' her, and threw her up against a car, causing only bruising.
examined Cited as authority (verbatim quote) Spencer v. Sullivan County Sheriff Department
S.D.N.Y. · 2019 · signal: see, e.g. · quote attribution · 1 verbatim quote · confidence high
e have permitted a plaintiff's claim to survive summary judgment on allegations that, during the course of an arrest, a police officer twisted her arm, 'yanked' her, and threw her up against a car, causing only bruising.
examined Cited as authority (verbatim quote) Pooler v. Hempstead Police Department (4×) also: Cited as authority (rule), Cited "see"
E.D.N.Y · 2012 · signal: see · quote attribution · 1 verbatim quote · confidence high
e have permitted a plaintiffs claim to survive summary judgment on allegations that, during the course of an arrest, a police officer twisted her arm, 'yanked' her, and threw her up against a car, causing only bruising.
discussed Cited as authority (rule) Eric Westry v. Connor Ahearn, Adrian Sanchez, Anthony Anderson, Anthony Quicquaro, Jason Krauter, and Raymond Rose
D. Conn. · 2026 · confidence medium
Police Dep't, 212 F. App'x 60, 62 (2d Cir. 2007) (“[W]e have permitted claims to survive summary judgment where the only injury alleged is bruising.” (citing Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004))); Gersbacher v. City of New York, 2017 WL 4402538 , at *11 (S.D.N.Y.
discussed Cited as authority (rule) Stephen C. Bellows v. Grand Isle County Sheriff’s Department, et al.
D. Vt. · 2026 · confidence medium
See Robison v. Via, 821 F.2d 913, 924-25 (2d Cir. 1987) (plaintiff’s claim survived summary judgment where she said that, during the course of an arrest, a police officer twisted her arm, “yanked” her, and threw her up against a car, causing bruising); Maxwell v. City of New York, 380 F.3d 106, 109-10 (2d Cir. 2004) (reversing grant of summary judgment in officer’s favor where plaintiff alleged officer’s use of force “was sufficient to send pains into her arm and lower back and leave her with post-concussive syndrome.”).
discussed Cited as authority (rule) Michael Reeves v. City of New York, et al.
E.D.N.Y · 2026 · confidence medium
“Police officers’ application of force is excessive, in violation of the Fourth Amendment, if it is objectively unreasonable in light of the facts and circumstances confronting them.” Id. (quoting Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004)).
discussed Cited as authority (rule) Eric Kyle Wist v. Middletown Police Department, City of Middletown, Nicholas Iannuzzi, Evan Colon, Angel Estremera, Kelsey Gage, and Patrick Cunningham
S.D.N.Y. · 2025 · confidence medium
A police officer’s use of force is excessive, thereby violating the Fourth Amendment, “if it is objectively unreasonable ‘in light of the facts and circumstances confronting [him], without regard to [his] underlying intent or motivation.’” Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004) (quoting Graham v. Connor, 490 U.S. 386, 397 (1989)).
discussed Cited as authority (rule) Raysor v. Police Officer Troy Ann Safi
E.D.N.Y · 2025 · confidence medium
A police officer’s use of force is excessive if “it is objectively unreasonable ‘in light of the facts and circumstances confronting [her], without regard to [her] underlying intent or motivation.’” Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir.), supplemented, 108 F. App’x 10 (2d Cir. 2004).
discussed Cited as authority (rule) Wolak v. Town of Old Saybrook
D. Conn. · 2025 · confidence medium
As to the Third Count, “[p]olice officers’ application of force is excessive, in violation of the Fourth Amendment, if it is objectively unreasonable ‘in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.’” Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004) (quoting Graham v. Connor, 490 U.S. 386, 397 (1989)).
discussed Cited as authority (rule) Harvey v. Corneal
S.D.N.Y. · 2025 · confidence medium
A police officer uses excessive force “if it is objectively unreasonable ‘in light of the facts and circumstances confronting [him], without regard to [his] underlying intent or motivation.’” Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004) (quoting Graham v. Connor, 490 U.S. 386, 397 (1989)).
discussed Cited as authority (rule) Hammond v. Long
D. Conn. · 2025 · confidence medium
Thus, while some degree of physical force may be permissible, a “[p]olice officers’ application of force is excessive, in violation of the Fourth Amendment, if it is objectively unreasonable ‘in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.’” Maxwell v. City of N.Y., 380 F.3d 106, 108 (2d Cir. 2004) (quoting Graham, 490 U.S. at 397 ).
discussed Cited as authority (rule) Dzionara-Norsen v. County of Monroe
W.D.N.Y. · 2025 · confidence medium
Ostroski v. Town of Southold, 443 F. Supp. 2d 325, 343 (E.D.N.Y. 2006) (“[A] reasonable officer should have known that repeatedly striking a subdued suspect violates a clearly established constitutional right not to be subjected to excessive force during arrest.”); Jones, 963 F.3d at 225 (“Before the incident at issue here in April 2015, it was clearly established in this Circuit that it is a Fourth Amendment violation for a police officer to use significant force against 14 an arrestee who is no longer resisting and poses no threat to the safety of officers or others.”); Maxwell v. Ci…
discussed Cited as authority (rule) Daley v. Gomez
S.D.N.Y. · 2025 · confidence medium
“Police officers’ application of force is excessive, in violation of the Fourth Amendment, if it is objectively unreasonable ‘in light of the facts and circumstances confronting them, without regard to the officers’ underlying intent or motivation.’” Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004) (quoting Graham v. Conor, 490 U.S. 386, 397 (1989)).
discussed Cited as authority (rule) Grant v. 115th Precinct
E.D.N.Y · 2025 · confidence medium
“Police officers’ application of force is excessive, in violation of the Fourth Amendment, if it is objectively unreasonable in light of the facts and circumstances confronting them.” Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004) (internal citation omitted); Basora v. City of Poughkeepsie, No. 22-CV-03300 (PMH), 2025 WL 50322 , at *3 (S.D.N.Y.
cited Cited as authority (rule) Garcia Jimenez v. County of Suffolk
E.D.N.Y · 2025 · confidence medium
Aug. 29, 2016) (quoting Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004)).
discussed Cited as authority (rule) Basora v. City of Poughkeepsie
S.D.N.Y. · 2025 · confidence medium
“Police officers’ application of force is excessive, in violation of the Fourth Amendment, if it is objectively unreasonable ‘in 5 “With the exception of the state actor requirement, the elements of a Section 1983 excessive force claim and state law assault and battery claims are substantially identical.” Chamberlain v. City of White Plains, 986 F. Supp. 2d 363, 398 (S.D.N.Y. 2013) (citing Posr v. Doherty, 944 F.2d 91, 94-95 (2d Cir. 1991)). light of the facts and circumstances confronting them, without regard to the officers’ underlying intent or motivation.’” Maxwell v. City …
discussed Cited as authority (rule) DiDonna v. Mass
S.D.N.Y. · 2024 · confidence medium
“Police officers’ application of force is excessive, in violation of the Fourth Amendment, if it is objectively unreasonable ‘in light of the facts and circumstances confronting them, without regard to the officers’ underlying intent or motivation.’” Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004) (quoting Graham v. Conor, 490 U.S. 386, 397 (1989)).
discussed Cited as authority (rule) Benbow v. Feely
E.D.N.Y · 2024 · confidence medium
To bring a Section 1983 claim for excessive force, a plaintiff must show that the officer’s use of force was “objectively unreasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004).
discussed Cited as authority (rule) Purcell v. City of New York
2d Cir. · 2024 · confidence medium
In any event, Purcell made no factual allegations against these 4 excessive, in violation of the Fourth Amendment, if it is objectively unreasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004) (citation and quotation marks omitted).
discussed Cited as authority (rule) Ringer v. City of Schenectady
N.D.N.Y. · 2024 · confidence medium
The Second Circuit emphasized that this was clearly established law prior to 2017 when it stated, “we have previously reversed a grant of summary judgment where the plaintiff adduced evidence that a police officer ‘shoved her head first into his police car, causing her head to strike the metal partition between the front and back seats.’” Jd. at p. 151 (quoting Maxwell v. City of New York, 380 F.3d 106, 109 (2d Cir. 2004)).
cited Cited as authority (rule) Chernick v. Faya
E.D.N.Y · 2024 · confidence medium
Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004).
discussed Cited as authority (rule) Cash v. Truong
E.D.N.Y · 2024 · confidence medium
A police officer’s use of force violates the Fourth Amendment if it is objectively unreasonable “in light of the facts and circumstances confronting [the officer], without regard to [his or her] underlying intent or motivation.” Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004).
discussed Cited as authority (rule) Baumeister v. Garcia
W.D.N.Y. · 2024 · confidence medium
“To prevail on an excessive force claim, a plaintiff must show that the amount of force used was objectively unreasonable either as to when or how the force was applied, and that, as a result of the use of force, he suffered some compensable injury.” Mayo, 480 F. Supp. 3d at 400 (citing Graham v. Connor, 490 U.S. 386, 396 (1989); and Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004)).
discussed Cited as authority (rule) Parker v. Incorporated Village of Freeport
E.D.N.Y · 2024 · confidence medium
See Tracy, 623 F.3d at 98 (holding that a jury could find that the use of pepper spray against a handcuffed and unresisting plaintiff constituted excessive and gratuitous force); Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004) (vacating summary judgment for an officer who allegedly shoved a handcuffed plaintiff headfirst into a police car, striking her head on the metal frame in the process); Weather v. City of Mount Vernon, 474 Fed.Appx. 821, 824 (2d Cir. 2012) (where no reasonable officer would believe that twisting a compliant plaintiff’s arm behind his back and shoving him …
discussed Cited as authority (rule) Chepilko v. Police Officer Scott Henry
S.D.N.Y. · 2024 · confidence medium
(See Pl.’s Proposed Findings ¶ 74.) “Police officers’ application of force is excessive, in violation of the Fourth Amendment, if it is objectively unreasonable ‘in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.’” Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004) (quoting Graham v. Connor, 490 U.S. 386, 397 (1989)).
discussed Cited as authority (rule) Bilyard v. Pierce (2×)
D. Conn. · 2024 · confidence medium
Thus, while some degree of physical force may be permissible, a “[p]olice officers’ application of force is excessive, in violation of the Fourth Amendment, if it is objectively unreasonable ‘in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.’” Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004) (citing Graham, 490 U.S. at 397 ).
discussed Cited as authority (rule) Purcell v. City of New York
E.D.N.Y · 2023 · confidence medium
“A police officer’s use of force is excessive, in violation of the Fourth Amendment, ‘if it is objectively unreasonable in light of the facts and circumstances confronting [the officer], without regard to [the officer’s] underlying intent or motivation.’” Breitkopf v. Gentile, 41 F. Supp. 3d 220, 242 (E.D.N.Y. 2014) (quoting Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004)). “[A]n officer’s decision to use deadly force is objectively reasonable only if the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical…
discussed Cited as authority (rule) Griffin v. Jacobi Medical Center
S.D.N.Y. · 2023 · confidence medium
The “application of force is excessive, in violation of the Fourth Amendment, if it is objectively unreasonable ‘in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.”” Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004) (quoting Graham, 490 U.S. at 397 ).
discussed Cited as authority (rule) Harris v. McAlistor
W.D.N.Y. · 2023 · confidence medium
Under that standard, “[p]olice officers’ application of force is excessive, in violation of the Fourth Amendment, if it is objectively unreasonable ‘in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.’” Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004) (quoting Graham, 490 U.S. at 397 ).
discussed Cited as authority (rule) Beach v. The City of New York
S.D.N.Y. · 2023 · confidence medium
Excessive Force Claims A plaintiff alleging excessive force must show that an officer’s actions were “objectively unreasonable in light of the facts and circumstances confronting [him], without regard to [his] underlying intent or motivation.” Maxwell v. City of N.Y., 380 F.3d 106, 108 (2d Cir. 2004) (internal quotation marks omitted).
discussed Cited as authority (rule) Marcus v. Howard
W.D.N.Y. · 2023 · confidence medium
Under the Fourth Amendment, a use of force will generally be found to be excessive only where “it is objectively unreasonable ‘in light of the facts and circumstances confronting [the arresting officer,] without regard to [his] underlying intent or motivation.’” Id. (quoting Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004), quoting Graham v. Connor, 490 U.S. 386, 397 (1989)); Lennon v. Miller, 968 F.3d 150, 155 (2d Cir. 2020) (accord).
discussed Cited as authority (rule) Swanhart v. State of New York
S.D.N.Y. · 2023 · confidence medium
A police officer’s use of force is excessive “if it is objectively unreasonable ‘in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.’” Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004) (quoting Graham 490 U.S. at 397 ).
discussed Cited as authority (rule) Josie v. The City of New York
E.D.N.Y · 2023 · confidence medium
However, “[t]he slightness of injury suffered as a result of the challenged use of force . . . does not preclude a finding that such force was objectively unreasonable.” Adedeji v. Hoder, 935 F. Supp. 2d 557, 567 (E.D.N.Y. 2013) (citing Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004).
cited Cited as authority (rule) Ketcham v. City of Mount Vernon
S.D.N.Y. · 2023 · confidence medium
See Ketcham, 992 F.3d at 151 ; Maxwell v. City of New York, 380 F.3d 106, 109 (2d Cir. 2004).
discussed Cited as authority (rule) Santiago v. City of Yonkers
S.D.N.Y. · 2023 · confidence medium
Under both the state and federal standards, “[p]olice officers’ application of force is excessive . . . if it is objectively unreasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004) (quotation marks omitted); see also Nimely v. City of New York, 414 F.3d 381, 391 (2d Cir. 2005) (explaining that under New York law, a plaintiff alleging battery by a police officer must show that the officer’s conduct “was not reasonable within the meaning of the New York…
discussed Cited as authority (rule) May v. Levy
E.D.N.Y · 2023 · confidence medium
“Police officers’ application of force is excessive, in violation of the Fourth Amendment, if it is objectively unreasonable in light of the facts and circumstances confronting them.” Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004) (internal quotation marks and citation omitted).
discussed Cited as authority (rule) Kistner v. The City of Buffalo
W.D.N.Y. · 2023 · confidence medium
“Police officers’ application of force is excessive, in violation of the Fourth Amendment, if it is objectively unreasonable ‘in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.’” Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004) (quoting Connor, 490 U.S. at 397 ); see also Connor, 490 U.S. at 397 (“An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force const…
cited Cited as authority (rule) Mehaylo v. Loris
D. Conn. · 2022 · confidence medium
Maxwell v. City of New York, 380 F.3d 106, 109 (2d Cir. 2004).
discussed Cited as authority (rule) Connelly v. Komm
D. Conn. · 2022 · confidence medium
See Graham v. Connor, 490 U.S. 386, 396 (1989) (“Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, . . . violates the Fourth Amendment.”); Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004).
discussed Cited as authority (rule) Singh v. The City of New York
E.D.N.Y · 2022 · confidence medium
Fourth Amendment Law on Excessive Force Under the Fourth Amendment, a police officer’s application of force is excessive “if it is objectively unreasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004).
discussed Cited as authority (rule) Cabello-Setlle v. County of Sullivan
S.D.N.Y. · 2022 · confidence medium
A police officer’s use of force is excessive “if it is objectively unreasonable ‘in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.’” Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004) (quoting Graham v. Connor, 490 U.S. 386, 397 (1989)).
discussed Cited as authority (rule) Witt v. Armstrong
D. Conn. · 2022 · confidence medium
Thus, while some degree of physical force is not unreasonable, “a Police officers’ application of force is excessive, in violation of the Fourth Amendment, if it is objectively unreasonable ‘in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.’” Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004) (citing Graham, 490 U.S. at 397 ).
discussed Cited as authority (rule) Content v. Curran
S.D.N.Y. · 2022 · confidence medium
A police officer’s use of force “ig excessive, in violation of the Fourth Amendment, if it is objectively unreasonable in light of -l1- the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir.) supplemented, 108 F. App’x 10 (2d Cir. 2004) (internal quotation marks omitted) (citing Graham, 490 U.S. at 397).
discussed Cited as authority (rule) Dickson v. Schenectady Police Department
N.D.N.Y. · 2022 · confidence medium
If the alleged force was used by an officer during an arrest or seizure, the Fourth Amendment is implicated, and a plaintiff must allege facts sufficient to plausibly infer that the force was “objectively unreasonable ‘in light of the facts and circumstances confronting [the officer], without regard to their underlying intent or motivation.’” Biswas v. City of N.Y., 973 F. Supp. 2d 504, 529 (S.D.N.Y. 2013) (quoting Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004)).
discussed Cited as authority (rule) Swanhart v. State of New York
S.D.N.Y. · 2022 · confidence medium
A police officer’s use of force is excessive “if it is objectively unreasonable ‘in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.’” Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004) (quoting Graham 490 U.S. at 397 ).
discussed Cited as authority (rule) Sanchez v. Chapman
D. Conn. · 2022 · confidence medium
“Police officers’ application of force is excessive, in violation of the Fourth Amendment, if it is objectively unreasonable ‘in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.’” Maxwell v. New York, 380 F.3d 106, 108 (2d Cir. 2004) (quoting Graham v. Connor, 490 U.S. 386, 397 (1989) (noting that the Fourth Amendment’s standard for excessive force is an objective inquiry)).
discussed Cited as authority (rule) Yusuf v. City of New York
E.D.N.Y · 2022 · confidence medium
Excessive Force Against Yusuf Police use of force is “excessive, in violation of the Fourth Amendment, if it is objectively unreasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004).19 Yusuf claims that the officers used excessive force when they handcuffed him too tightly, but he cannot identify the officer who handcuffed him. 1?
discussed Cited as authority (rule) Ortiz v. Hasper
E.D.N.Y · 2022 · confidence medium
A. Excessive Force A police officer’s application of force is excessive “if it is objectively unreasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004).
Retrieving the full opinion text from the archive…
In Their Individual and Official Capacities the Fat Black Pussycat John Doe, 7, Representing an Employee of the Fat Black Pussycat Howard Safir, Former Police Commissioner of the City of New York, in His Individual and Official Capacity Sebastian Mannuzza, Police Officer, Shield No. 23890, in His Individual and Official Capacity
03-0245.
Court of Appeals for the Second Circuit.
Aug 12, 2004.
380 F.3d 106
Published

380 F.3d 106

Leah MAXWELL, Plaintiff-Appellant,
v.
CITY OF NEW YORK; John Does, 1 to 6, representing several unidentified police officers and the Commanding Officer of Manhattan Central Booking, in their individual and official capacities; Jane Does, 1 to 6, representing several unidentified police officers,

in their individual and official capacities; The Fat Black Pussycat; John Doe, 7, representing an employee of The Fat Black Pussycat; Howard Safir, former Police Commissioner of the City of New York, in his individual and official capacity; Sebastian Mannuzza, Police Officer, Shield No. 23890, in his individual and official capacity, Defendants-Appellees.

Docket No. 03-0245.

United States Court of Appeals, Second Circuit.

Argued: April 12, 2004.

Decided: August 12, 2004.

Appeal from the United States District Court for the Southern District of New York, Victor Marrero, J.

Richard J. Cardinale, Brooklyn, NY (Cardinale Hueston & Marinelli, Brooklyn, NY, on the brief), for Plaintiff-Appellant.

Sharyn Rootenberg, New York City. (Michael A. Cardozo, New York City Corporation Counsel, Larry A. Sonnenshein, John H. Graziadei, New York City, on the brief), for Defendants-Appellees.

Before: NEWMAN, KEARSE, and SOTOMAYOR, Circuit Judges.

JON O. NEWMAN, Circuit Judge.

[*~106]1

This appeal primarily concerns a claim of excessive force in the course of an arrest. Plaintiff-Appellant Leah Maxwell appeals from a judgment of the District Court for the Southern District of New York (Victor Marrero, District Judge) granting summary judgment to Defendants-Appellees City of New York ("City"), former City Police Commissioner Howard Safir in his individual and official capacities, police officer Sebastian Mannuzza in his individual and official capacities, and several unidentified police officers in their individual and official capacities ("Defendants-Appellees"). Maxwell brought suit under 42 U.S.C. § 1983 and the First, Fourth, and Fourteenth Amendments, for violation of her civil rights and for negligence under New York law. This opinion considers her claim of excessive force during the arrest, a claim that we conclude merits a trial. Issues concerning her other claims have been rejected in a summary order filed today. We therefore affirm in part, vacate in part, and remand.

Background

2

The following facts, alleged by the Plaintiff in her complaint and at her deposition, concern her claim of excessive force. On June 26, 2000, between 2:00 and 2:30 a.m., Maxwell and her friend, co-plaintiff Q'Niah Nasi, arrived at the Fat Black Pussycat bar in Greenwich Village. Maxwell, a college student, who stands 5'1" tall and weighs 115 pounds, became embroiled in a verbal dispute with the club's bouncer when he refused to admit Nasi.

3

The dispute escalated into a physical altercation, during which Maxwell allegedly hit the bouncer over the head with her backpack, lacerating the bouncer's head. Officer Mannuzza and his partner arrived on the scene at approximately 3:23 a.m and arrested Maxwell for assault. Maxwell alleges that Mannuzza violently and unnecessarily swung and jerked her around by the handcuffs while she was cuffed from behind. Especially pertinent to this appeal, Maxwell also alleges that Mannuzza shoved her head first into his police car, causing her head to strike the metal partition between the front and back seats.

4

Maxwell alleged that she suffered immediate pain as a result of hitting her head on the partition. She was taken to a hospital after 4 a.m. where she was treated for pain in her lower back and left arm and for headache.

[*~107]5

Maxwell was eventually arraigned and then released on her own recognizance. Her case ended in an adjournment in contemplation of dismissal under New York Criminal Procedure Law § 170.55. During the following weeks, Maxwell suffered from headaches, dizziness, nausea, and lethargy. She obtained further medical treatment and was diagnosed with post-concussive syndrome.

6

Maxwell and Nasi filed their joint complaint in July 2001. Two years later, the District Court entered summary judgment in favor of the Defendants-Appellees.

Discussion

[*~108]7

Police officers' application of force is excessive, in violation of the Fourth Amendment, if it is objectively unreasonable "in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Although "`[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers,' ... violates the Fourth Amendment" id. at 396, 109 S.Ct. 1865 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973)), we have permitted a plaintiff's claim to survive summary judgment on allegations that, during the course of an arrest, a police officer twisted her arm, "yanked" her, and threw her up against a car, causing only bruising, Robison v. Via, 821 F.2d 913, 924-25 (2d Cir.1987).

8

The District Court rejected Maxwell's claim on summary judgment in part because the Court understood the following answer in her deposition to refute the claim that she was propelled head-first into the metal partition of the police car: Q: So when he shoved you into the car, was it head first or did he turn you around and seat you?

9

A: I was shoved. I don't know. It was just like, "get in."

10

In the Court's view, this response "unambiguously indicat[ed]" that Maxwell "did not remember how she was `shoved' in the car." Maxwell v. City of New York, 272 F.Supp.2d 285, 306 (S.D.N.Y.2003) (denying reconsideration). Therefore, the Court found, the statement undermined Maxwell's later allegations in her sworn declaration in opposition to the summary judgment motion:

11

Mannuzza violently shoved me head first into the police car. Mannuzza's shove caused my head to strike the solid partition inside of the police car.

12

We appreciate the Court's concern that a party's affidavit may not create an issue of fact by "contradict[ing] the affiant's previous deposition testimony," Hayes v. New York City Dep't of Corrections, 84 F.3d 614, 619 (2d Cir.1996), but we think the Court read Maxwell's deposition responses too narrowly, especially in light of Maxwell's answer to the question that immediately preceded her earlier response:

13

Q: Do you remember, though, whether you — were you shoved in head first so that you fell forward onto the seat, is what I'm asking?

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A: No. I scraped my forehead against the thing that divides the perps from the police officers.

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Taken together, Maxwell's deposition answers that she "scraped my forehead against the thing that divides the perps from the police officers" and that she was "shoved" are entirely consistent with her later allegation that the officer propelled her into the car's partition. Her "I don't know response" to the first question, when taken in context with the other statements, does not unambiguously establish that she did not remember how she injured her forehead. And her "No" answer to the second question can reasonably be understood to deny only the part of the question that asked whether she was "shoved in head first so that you fell forward onto the seat." Her claim was that the head-first shove caused her to strike her head against the partition, not to fall forward onto the seat. At worst, the deposition answers left an ambiguity that the later declaration clarified. See Langman Fabrics v. Graff Californiawear, Inc., 160 F.3d 106, 112 (2d Cir.1998) ("If there is a plausible explanation for discrepancies in a party's testimony, the court considering a summary judgment motion should not disregard the later testimony because of an earlier account that was ambiguous, confusing, or simply incomplete."). Furthermore, Nasi submitted a declaration stating that "Mannuzza violently shoved Maxwell head first into the police car. Maxwell's head struck a hard surface of the car as a result of Mannuzza's violent conduct. I heard Maxwell cry out in pain." Nasi Decl. ¶ 15.

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The Court also expressed the view that Maxwell's injury was insufficiently serious: "That Maxwell allegedly scraped her head when being shoved into the car is not sufficient for any reasonable jury to find an excessive force claim in this case — minor scrapes, bumps or bruises potentially could occur, often unintended, during any arrest, and an arresting officer can not be held unremittingly liable for every such incident." Maxwell, 272 F.Supp.2d at 298. However, her complaint alleges that Mannuzza's use of force in making the arrest was sufficient to send pain into her arm and lower back and leave her with a post-concussive syndrome. In light of Robison, we think a jury should assess Maxwell's account of what occurred during her arrest, along with any conflicting evidence the Defendants-Appellants present.

Conclusion

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The summary judgment is vacated only to the extent that it rejected the claim of excessive force, which we remand for further proceedings.