Submitted: January 12, 2017
from United States District Court for the Eastern District of
Arkansas - Little Rock
LOKEN, BEAM, and BENTON, Circuit Judges.
BENTON, Circuit Judge.
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.
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.
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.
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.
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
later pled guilty to felony robbery and misdemeanor resisting
arrest and theft of property.
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.
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