Ricky Tatum v. Willie Robinson, 2017 U.S. App. LEXIS 9342

Off-duty Arkansas State Police corporal Willie Robinson, working as mall security, confronted Ricky Tatum after store staff reported suspected shoplifting of shorts; Tatum had set the shorts down and argued with staff.
Robinson, in plain clothes, identified himself as a law-enforcement officer, told Tatum he was under arrest, and ordered him to place his hands on a clothes rack; Tatum refused and argued but (viewed favorably to Tatum) did not physically fight before force was used.
About 14 seconds after approaching, Robinson sprayed pepper spray in Tatum’s face for one second; the parties then moved into a display and later into a security room where events were not recorded.
Tatum alleges Robinson choked him continuously while handcuffing and escorting him to the security room, and thereafter stomped, kicked, and slammed him; Robinson denies choking and disputes other details.
Security video covers parts of the encounter (no audio) and contradicts some witness statements; Tatum later pled guilty to robbery and resisting arrest and sued Robinson for excessive force; district court denied qualified immunity on pepper-spray and choking claims.
The Eighth Circuit reviews denial of qualified immunity de novo, viewing evidence in plaintiff’s favor, and applies Graham v. Connor objective-reasonableness factors and the clearly-established-rights inquiry.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Robinson’s pepper-spraying of Tatum violated the Fourth Amendment	Robinson was a nonviolent suspected misdemeanant who only argued and did not physically resist; spraying was excessive and objectively unreasonable	Pepper spray was reasonable to gain compliance from a noncompliant, argumentative suspect; later discovery of a shank and guilty plea support reasonableness	A jury could find the pepper spray objectively unreasonable, but the right not to be pepper-sprayed under these specific facts was not "clearly established" as of April 29, 2014 — qualified immunity granted on pepper-spray claim
Whether Robinson’s choking of Tatum violated the Fourth Amendment and whether qualified immunity applies	Robinson choked Tatum while he was restrained, not resisting, and begged for it to stop; this was gratuitous force violating clearly established Fourth Amendment rights	Robinson contends Tatum was resisting and denies choking; disputes of fact exist	Viewing facts for Tatum, choking a handcuffed, non-resisting suspect was objectively unreasonable and clearly established; qualified immunity denied on choking claim

Graham v. Connor, 490 U.S. 386 (sets objective-reasonableness test for excessive force)
Plumhoff v. Rickard, 134 S. Ct. 2012 (clearly-established-rights standard; avoid high-level generalizations)
White v. Pauly, 137 S. Ct. 548 (no case directly on point required, but law must be particularized)
Peterson v. Kopp, 754 F.3d 594 (8th Cir.) (qualified-immunity framework and discussion of pepper spray proportionality)
Brown v. City of Golden Valley, 574 F.3d 491 (8th Cir.) (Taser/force on nonviolent misdemeanant not justified; relied on by district court)
Chambers v. Pennycook, 641 F.3d 898 (8th Cir.) (gratuitous choking/kicking of restrained suspect violates Fourth Amendment)
Krout v. Goemmer, 583 F.3d 557 (8th Cir.) (gratuitous force against subdued, handcuffed suspect is unreasonable)
Henderson v. Munn, 439 F.3d 497 (8th Cir.) (use of pepper spray on a subdued, handcuffed suspect may be gratuitous and unconstitutional)