942 F.3d 405
8th Cir.2019Background
- Tom Johnson, a professional football player, was asked to leave a nightclub lobby after closing; he showed a valet ticket and disputed being singled out.
- Off-duty uniformed officers McCarver and LaLuzerne (working as club security) told Johnson to leave; a scuffle ensued inside the club involving pushing and pepper spray, and officers pushed Johnson outside.
- Outside, Johnson sat on a planter and filmed the officers; McCarver knocked his phone to the ground and later tased Johnson twice (9s and 5s), then arrested him.
- Johnson was charged with trespass, disorderly conduct, and obstructing legal process; a jury acquitted him of all charges.
- Johnson sued under 42 U.S.C. § 1983 for false arrest/retaliatory arrest (Fourth and First Amendments), excessive force (inside and for the tasing), falsifying a police report, due process, and conspiracy; the district court denied qualified immunity, and the officers appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| False arrest (trespass) / retaliatory arrest | Johnson: he had a claim of right to wait for valet; no probable cause and arrest was retaliatory for filming | Officers: Webster (doorman) or officers revoked license to remain; Johnson refused to leave, so at least arguable probable cause for trespass | Held: Qualified immunity — officers had arguable probable cause; denial reversed (majority) |
| First Amendment — right to record police / retaliation | Johnson: recording is protected speech and arrest was motivated by retaliation | Officers: right to record not clearly established; arrest supported by arguable probable cause | Held: Qualified immunity — majority finds arguable probable cause so claim fails; concurrence/dissent would hold right to record was clearly established and deny immunity |
| Due Process — falsified report/deprivation of liberty | Johnson: officers falsified report and deprived him of liberty without due process | Officers: pretrial liberty claims are governed by Fourth Amendment; post-trial there was no deprivation (he was acquitted) | Held: Qualified immunity — claim fails because Fourth Amendment governs pretrial detention and no post-trial deprivation occurred; denial reversed |
| Excessive force — inside club (push/pepper spray) | Johnson: shoves and pepper spray were excessive; he was not resisting or violent | Officers: Johnson resisted and size/strength justified force; force was reasonable | Held: Qualified immunity — majority finds force inside club not unreasonable under facts; denial reversed; dissent would deny immunity |
| Excessive force — tasing outside club | Johnson: he was seated and filming when McCarver tased him; nonviolent, not resisting or fleeing | Officers: Johnson lunged/rose and threatened officer; video conclusively shows resistance | Held: No qualified immunity — genuine fact disputes; clearly established law forbids tasing nonviolent, nonresisting misdemeanants; denial affirmed |
Key Cases Cited
- Pearson v. Callahan, 555 U.S. 223 (qualified immunity two-step analysis)
- District of Columbia v. Wesby, 138 S. Ct. 577 (clearly established standard; violation must be beyond debate)
- Ashcroft v. al-Kidd, 563 U.S. 731 (clearly established/notice standard)
- Nieves v. Bartlett, 139 S. Ct. 1715 (arrest for misdemeanors committed in officer's presence)
- Atwater v. City of Lago Vista, 532 U.S. 318 (lawful arrest for misdemeanors)
- Manuel v. City of Joliet, 137 S. Ct. 911 (distinguishing Fourth Amendment seizure from later due-process theories)
- Brown v. City of Golden Valley, 574 F.3d 491 (Eighth Circuit: tasing nonviolent, nonresisting misdemeanant unreasonable)
- Peterson v. Kopp, 754 F.3d 594 (Eighth Circuit: pepper spray on non-fleeing, nonviolent suspect may be excessive force)
- Scott v. Harris, 550 U.S. 372 (video may blatantly contradict testimony for summary-judgment purposes)
- Baribeau v. City of Minneapolis, 596 F.3d 465 (First Amendment retaliation general standard)
- Hoyland v. McMenomy, 869 F.3d 644 (elements for retaliatory-arrest claim)