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Tatum v. Robinson

United States Court of Appeals, Eighth Circuit

May 30, 2017

Ricky Barnard Tatum Plaintiff-Appellee
v.
Willie Robinson, Sr. Captain, Arkansas State Police Defendant-Appellant Bobby Norman, Director, Law Enforcement Standards, AR State Police; John Does, Dillards Store Manager, Dillards CEO; Corizon Defendants

          Submitted: January 12, 2017

         Appeal from United States District Court for the Eastern District of Arkansas - Little Rock

          Before LOKEN, BEAM, and BENTON, Circuit Judges.

          BENTON, Circuit Judge.

         This is a qualified immunity appeal. Willie Robinson, a senior corporal in the Arkansas State Police, arrested Ricky B. Tatum. Tatum sued Robinson, claiming he used excessive force by pepper spraying and choking him. The district court denied Robinson qualified immunity. Robinson appeals. Having jurisdiction under 28 U.S.C. § 1291, see Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), this court affirms in part, reverses in part, and remands.

         I.

         On April 29, 2014, a security camera operator at a Dillard's department store in Little Rock saw Tatum grab eight pairs of shorts from a display and walk toward nearby exit doors. The camera operator remotely locked the doors. Tatum tried to exit without paying. Finding the doors locked, he put down the shorts, walked around the store, told Dillard's staff the doors were locked, and returned to the area near the display. The camera operator alerted an assistant store manager and mall security. She also contacted Robinson, who was working off-duty as a security officer, and told him about Tatum's actions. Another mall security officer and at least two Dillard's employees waited near Tatum for Robinson to arrive.

         Robinson, in plain clothes, walked up to the smaller Tatum. He said he was a law enforcement officer. He told Tatum he was under arrest and to put his hands on a clothes rack. Tatum argued with Robinson and did not comply. According to the other security officer at the scene, Robinson told Tatum that he would pepper spray him if he did not calm down.

         About 14 seconds after walking up to Tatum, Robinson pepper sprayed his face for one second. The two then crashed into a display table. Tatum says he did not fight or resist. Robinson, however, says Tatum "began wrestling and fighting with him into a table." They struggled, and Robinson's hands got injured. With the other security officer's assistance, Robinson handcuffed Tatum. Tatum says Robinson was choking him to the point he could not breathe. Robinson then walked Tatum to the store's security room with his arm around Tatum's neck. Tatum says he was choked the entire way. Robinson says he did not choke Tatum and Tatum was resisting. Once in the security room, Tatum says, Robinson repeatedly stomped, kicked, and slammed him, and called him "n****r mothafucker." Robinson denies all this, saying that, because Tatum kept getting up from his seat, he pushed Tatum back into his seat several times and then kicked his feet out from under him.

         Video from Dillard's security cameras shows some of Tatum's acts before Robinson approached him, and some of their interactions before entering the security room. There is no audio. No video or audio was recorded inside the security room.

         Tatum later pled guilty to felony robbery and misdemeanor resisting arrest and theft of property.

         Tatum, incarcerated and pro se, sued Robinson for using excessive force. He submitted affidavits describing the events of April 29. Robinson moved for summary judgment on the basis of qualified immunity, citing witness affidavits, Tatum's guilty pleas, and the security footage. The district court denied qualified immunity on Tatum's claims that Robinson used excessive force by pepper spraying and choking him. Robinson appeals.

         II.

         This court reviews de novo a district court's denial of summary judgment on the basis of qualified immunity, viewing the evidence most favorably to the plaintiff. Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (per curiam); Shannon v. Koehler, 616 F.3d 855, 861-62 (8th Cir. 2010). See also Scott v. Harris, 550 U.S. 372, 378 (2007) (explaining court should not adopt a party's version of events if a video "clearly contradicts" its version of the story); Mann v. Yarnell, 497 F.3d 822, 826-27 (8th Cir. 2007) (holding a plaintiff does not create a genuine issue of material fact by offering "a dark and often unintelligible video coupled with an entirely speculative and wishful recitation of events that is neither substantiated by anything displayed in the video nor by the memory of any observer or participant present at the altercation"). To overcome an assertion of qualified immunity, a plaintiff "must present sufficient facts to ...


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