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EXCESSIVE FORCE ALLEGATIONS AGAINST POLICE AND 42 USC 1983 CAUSE OF ACTION AGAINST THE MUNICIPALITY PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined plaintiffs’ 42 USC 1983 causes of action against the police and the municipality were properly dismissed. Placing handcuffs on the plaintiffs during the execution of a search warrant did not constitute excessive force. Plaintiffs did not demonstrate the municipality was implementing an unconstitutional policy:

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… [T]he officers’ use of force while executing the search warrant was reasonable. Handcuffing the plaintiff and her two teenaged sons for the duration of the search was reasonable under the circumstances, given that the officers did not know who they might encounter or whether any occupants of the house might have weapons … . The fact that the plaintiff was not named as a subject of the warrant did not render the conduct of the police objectively unreasonable … . In opposition, the plaintiff failed to raise a triable issue of fact regarding the propriety of the level of force used by the police in executing the search warrant. Additionally, “a plaintiff must have sustained some injury to maintain a claim of excessive force, although that injury need not be severe” … . Here, the plaintiff failed to raise a triable issue of fact as to whether she or any of her children sustained an injury as a result of being handcuffed or detained during the search … . …

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” [A] 42 USC § 1983 action may lie against a municipality if the plaintiff shows that the action that is alleged to be unconstitutional either implement[s] or execute[s] a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers or has occurred pursuant to a practice so permanent and well settled as to constitute a custom or usage with the force of law'” … . However, a municipality “cannot be held liable pursuant to 42 USC § 1983 based solely upon the doctrine of respondeat superior or vicarious liability”… . Here, in opposition to the defendants’ prima facie showing, the plaintiff’s conclusory assertions failed to raise a triable issue of fact as to whether the alleged unconstitutional actions resulted from a policy, regulation, or custom of the City … . Harris v City of New York, 2017 NY Slip Op 06527, 2nd Dept 9-20-17

 

CIVIL RIGHTS LAW (42 USC 1983, EXCESSIVE FORCE ALLEGATIONS AGAINST POLICE AND 42 USC 1983 CAUSE OF ACTION AGAINST THE MUNICIPALITY PROPERLY DISMISSED (SECOND DEPT))/MUNICIPAL LAW (42 USC 1983, EXCESSIVE FORCE ALLEGATIONS AGAINST POLICE AND 42 USC 1983 CAUSE OF ACTION AGAINST THE MUNICIPALITY PROPERLY DISMISSED (SECOND DEPT))/POLICE (42 USC 1983, EXCESSIVE FORCE ALLEGATIONS AGAINST POLICE AND 42 USC 1983 CAUSE OF ACTION AGAINST THE MUNICIPALITY PROPERLY DISMISSED (SECOND DEPT))/EXCESSIVE FORCE (42 USC 1983, EXCESSIVE FORCE ALLEGATIONS AGAINST POLICE AND 42 USC 1983 CAUSE OF ACTION AGAINST THE MUNICIPALITY PROPERLY DISMISSED (SECOND DEPT))

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