10-3265 Brooks v. City of Aurora

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Civil Rights
Excessive force; qualified immunity

Officers are entitled to qualified immunity on an excessive force claim, even though they used pepper spray to subdue a suspect arrested for driving on a suspended license and resisting a peace officer.

“We need not decide whether a constitutional violation occurred because we believe that it would not have been obvious to a reasonable police officer in Officer Lill’s position that the application of pepper spray was unlawful. To be sure, whether and how much force is reasonable in a given situation can change as the situation develops, and what is appropriate at one point may be unnecessary later on. See Cyrus, 624 F.3d at 863. Yet controlling law would not have communicated to a reasonable officer the illegality of applying pepper spray to an arrestee who has ceased active, physical resistance for a couple of seconds but has not submitted to the officer’s authority, has not been taken into custody and still arguably could pose a threat of flight or further resistance. Prior cases have charted only clearer waters. See, e.g., Tracy v. Freshwater, 623 F.3d 90, 99 (2d Cir. 2010) (potentially unreasonable to ‘appl[y] pepper spray after [arrestee] had already been handcuffed and was offering no physical resistance of police commands’); Henderson v. Munn, 439 F.3d 497, 503-04 (8th Cir. 2006) (unreasonable to use pepper spray against someone ‘lying face down on the ground with both arms handcuffed behind his back’); Vinyard, 311 F.3d at 1349 (unreasonable to apply pepper spray to a woman ‘under arrest for offenses of minor severity, handcuffed, secured in the back of a patrol car, and posing no threat to [the officer], herself or the public’); Headwaters Forest Def. v. Cnty. of Humboldt, 276 F.3d 1125, 1130 (9th Cir. 2002) (stating that ‘the use of pepper spray may be reasonable as a general policy to bring an arrestee under control, but in a situation in which an arrestee surrenders and is rendered helpless, any reasonable officer would know that a continued use of the weapon or a refusal without cause to alleviate its harmful effects constitutes excessive force’ (internal quotation marks and emphasis omitted)). Indeed, given Mr. Brooks’s previous actions and his failure to follow Officer Lill’s commands to get on the ground, it would not have been obvious to Officer Lill that even the second application of the pepper spray was not ‘a reasonably proportionate response’ to gain Mr. Brooks’s cooperation and to avert ‘an escalation of violence.’ Norris, 640 F.3d at 303 (internal quotation marks omitted). As such, the officers are entitled to qualified immunity, and the district court properly granted summary judgment in favor of the defendants on the excessive force claim.”

Affirmed.

10-3265 Brooks v. City of Aurora

Appeal from the United States District Court for the Northern District of Illinois, Coar, J., Ripple, J.

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