NY Giants fans claim Levi’s Stadium arrest violated right to heckle their team

SANTA CLARA — Two New York Giants fans are alleging their right to free speech was violated last year when police officers at Levi’s Stadium arrested them for shouting expletives and flipping off players, according to a federal lawsuit filed last week in San Jose.

The complaint also says officers used excessive force against brothers Patrick and Kyle Flynn, including pushing the former over a railing, then shocking him with a Taser.

A spokeswoman for the city of Santa Clara, which employs the officers, could not be immediately reached for comment.

The incident occurred during the San Francisco 49ers game against the New York Giants on Nov. 12, 2017, according to the lawsuit. In the second half, the brothers, who were seated in the rows closest to the field in or around sections 120 and 121, started flipping off Giants players and yelling “you (expletive) suck.” The Giants were losing.

Santa Clara police Officer Nicholas Cusimano told the brothers to stop. They complied, but the suit claims they were not warned “further similar behavior would lead to ejection or arrest.”

When the 49ers scored again, the brothers stood up, approached the railing separating the stands from the field and again flipped off Giants players while screaming “you (expletive) suck,” according to the lawsuit. Cusimano then called for the brothers to be ejected.

The suit claims Kyle Flynn remained in his seat because he believed he had done nothing wrong, and was grabbed and choked by officers. He was eventually taken to the stadium’s temporary holding facility and placed in a total body restraint known as a WRAP.

“Kyle Flynn’s face was also wrapped,” the suit says. “He was then leaned against a wall and left in the restraint device for at least 30 to 40 minutes.”

Patrick Flynn, meanwhile, protested his brother’s arrest and kneeled at the railing. He was also allegedly grabbed and choked, and, according to the suit, Special Events Officer Theodore Rodgers hit his left hand with a baton to break his grip on the railing.

That’s when a third plaintiff in the lawsuit, Lauren Alcarez, intervened.

“Ms. Alcarez, who knew that Patrick Flynn had recently broken his left hand, yelled at Rodgers to ‘leave him alone’ and ‘stop hitting him,’ ” the suit says. “After seeing that Rodgers would not stop hitting Patrick despite her pleas, Ms. Alcarez grabbed the baton.”

In response, Rodgers elbowed Alcarez in the chest and shoulder, driving her backward, according to the lawsuit. Officers arrested her and took her to the holding facility.

As Alcarez was being handcuffed, Patrick Flynn was pushed over the railing and onto the field some 10 feet below, according to the lawsuit. Officers pinned him to the ground, where he was allegedly tased and kneed in the face. He was then taken to the holding facility.

Kyle Flynn was initially charged with one misdemeanor count of resisting arrest, but it was later dismissed by the Santa Clara County District Attorney’s Office “in the interests of justice and for insufficiency of the evidence,” according to the lawsuit. It was not immediately clear if either Patrick Flynn or Alcarez were charged with a crime.

The suit claims the officers acted out of anger over the brothers’ “exercise of their protected First Amendment rights.”

“Patrick Flynn’s and Kyle Flynn’s comments and gestures directed towards the New York Giants players, as well as Patrick Flynn’s decision to ‘take a knee,’ were protected First Amendment expression,” the suit says.

The brothers, along with Alcarez, suffered “physical and mental pain, shock and distress” as a result of the officers’ “excessive and unreasonable actions,” according to the lawsuit.

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