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A Debevoise & Plimpton attorney who was apprehended at gunpoint while collecting beetles near his Scarsdale, N.Y., home has lost an initial appeal in his civil rights suit against the Village of Scarsdale and its police department. Southern District of New York Judge Charles L. Brieant ruled that a jury had reasonably concluded that officers did not use excessive force when they pointed guns at the attorney, Harry Zirlin, and handcuffed him behind his back with his face to the ground. The officers were responding to a woman who said she saw a man in the woods carrying a knife. “A reasonable jury could conclude, based upon the totality of the knowledge of the police at the time of their momentary and sudden encounter with the plaintiff, including information that an altercation involving threats of violence had occurred recently at the nearby Sanitation Department, led them to believe, reasonably, that they were entering a potentially hostile and dangerous situation,” Brieant wrote in Zirlin v. The Village of Scarsdale, 03 Civ. 9903. “They were unaware of Mr. Zirlin’s identity or intentions.” Zirlin, in fact, has two identities: associate at one of the city’s leading law firms and recognized expert and collector of beetles. He has lectured and written widely on the subject, including co-authorship of the “National Audubon Society Field Guide to the Mid-Atlantic States.” In December 2002, Zirlin, then 51, walked five minutes from his home to a wooded area near the Heathcote Bypass. There, he used his pocketknife to extract beetle specimens from dead wood. The knife, he said in an interview, “could not cut a loaf of bread.” A woman driving along the road saw Zirlin and stopped to tell a sanitation worker at a nearby transfer station about a man with a knife in the woods. The worker informed the police. Officers never identified the woman and she has never given her version of the events. Zirlin’s theory is that the woman thought he was a danger to himself. “She did a drive-by psychiatric diagnosis,” he said. “It was around Christmas time and she sees someone alone in the woods with a knife and thinks, ‘He is going to commit suicide.’” Once the officers arrived, they asked Zirlin to walk toward them. Two officers pointed their guns at him. Zirlin was told to drop his bag, move closer, turn around and drop to the ground. The officers then handcuffed him. Lying face down and handcuffed, Zirlin explained that he lived nearby and was collecting beetles. He gave his name and address. He said an officer searched his bag, which held his knife and glass jars of beetles. He was soon released. After months of letters and discussions with local officials, Zirlin sued. The suit, he has always maintained, is not about money, but a way to force the Scarsdale police to change tactics that he said are dangerous and could result in the death of an innocent person. “This is a gunpoint stop,” Zirlin said. “I was afraid to move my eyes, that’s how petrified I was. If they had done every single thing they did to me except point the guns at me, I would not have sued them. I would have written a nasty letter, but I would not have spent $30,000 in legal fees.” He added: “These things don’t normally happen to 50-year-old attorneys, but they do happen to kids who wear baggy sweatshirts and baggy pants.” Zirlin said his 14-year-old son is one of those kids. Brieant described Zirlin as the “paradigm of a reputable citizen.” Nonetheless, he said, there was no reason to upset a jury verdict in favor of the town. The judge cited a U.S. Supreme Court decision from last month, Muehler v. Mena, 2005 LEXIS 2755, to bolster his decision. In Muehler, an eight-officer SWAT team entered a home that, it turned out, was inhabited only by a 5-foot-2-inch woman who was asleep. The Court said it was acceptable for the officers to immediately handcuff the woman without determining whether she was dangerous. It said overwhelming force was justified when police needed to gain control of what they believed was a dangerous situation. Zirlin said the Muehler case was not comparable, since those officers were executing a search warrant. He said he would appeal the ruling to the 2nd U.S. Circuit Court of Appeals. Zirlin was represented by Bruce Menken of Beranbaum Menken Ben-Asher & Bierman. Howard Code of the Law Office of Patrick Colligan argued on behalf of the defendants. He could not be reached for comment.

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