By Joseph Ax
NEW YORK (Reuters) - A federal judge allowed claims of excessive force filed by two Occupy Wall Street protesters against New York police officers to move forward on Wednesday, but threw out their claims of false arrest.
U.S. District Judge Denise Cote also dismissed all claims against New York City, finding that Heather Carpenter and her fiancé, Julio Jose Jimenez-Artunduaga, failed to show that the alleged excessive force reflected an "official policy" of the police department.
The lawsuit stems from an October 15, 2011, incident at a Citibank branch in downtown Manhattan at the height of the Occupy movement, which arose to protest economic inequality.
Carpenter and Jimenez marched to the bank with a group of protesters. While some protesters staged a "teach-in" inside the branch, discussing negative experiences with big banks, Jimenez videotaped the proceeding.
Carpenter, meanwhile, went to a teller to close her account as part of the demonstration.
After bank employees asked protesters to leave, police officers closed the doors and arrested protesters who remained inside for trespassing.
Carpenter was permitted to leave the bank after showing her receipt but was subsequently arrested outside when an undercover officer told a supervisor that she was one of the protesters.
Jimenez, who had already left the bank but remained outside to watch, was also arrested.
In a lawsuit filed in 2011, Carpenter and Jimenez claimed they were victims of false arrest and had been handled roughly without justification, naming the city and several police sergeants and chiefs as defendants.
Cote rejected the false arrest claims, saying the officers had probable cause to arrest both Jimenez and Carpenter based on their presence with a group of protesters, even though Carpenter claimed she was merely there as an observer and a customer.
"Closing a bank account is, of course, lawful activity," Cote wrote. However, she said officers could reasonably conclude that by closing her account, she was engaging in protest activity in defiance of the bank's employees.
Ronald Kuby, the attorney for Carpenter and Jimenez, said he was gratified the excessive force claims would move ahead but said Cote's analysis of Carpenter's actions was "perplexing," saying the judge was "criminalizing the act of closing your bank account if you do it as part of a protest."
"We agree with the Court's decision regarding the City's liability and false arrest," Andrew Lucas, a lawyer for the city, said in a statement.
(Reporting by Joseph Ax; Editing by Edith Honan and Bob Burgdorfer)