In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3265
M ICHAEL A. B ROOKS,
Plaintiff-Appellant,
v.
C ITY OF A URORA, ILLINOIS, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 C 4144—David H. Coar, Judge.
A RGUED F EBRUARY 17, 2011—D ECIDED JULY 6, 2011
Before E ASTERBROOK, Chief Judge, and R IPPLE and
T INDER, Circuit Judges.
R IPPLE, Circuit Judge. Michael Brooks brought this
action under 42 U.S.C. § 1983 and Illinois law against
the City of Aurora and several municipal police offi-
cers. The complaint alleged that the officers violated
Mr. Brooks’s rights under the Fourth Amendment and
state law when they arrested him for driving on a sus-
pended license and for resisting a peace officer. The
district court granted summary judgment in favor of the
2 No. 10-3265
defendants on the federal claims and dismissed the
state law claims without prejudice. Mr. Brooks now
appeals.
We affirm the judgment of the district court. Mr.
Brooks’s actions when the officers attempted to arrest
him for driving on a suspended license gave them
probable cause to believe that he was committing the
crime of resisting a peace officer. Therefore, the seizure
was valid regardless of whether Mr. Brooks was ar-
rested for the traffic offense pursuant to a valid war-
rant. Further, controlling law at the time of the incident
did not clearly establish that the use of pepper spray
was unreasonable under the circumstances; thus,
the officers are entitled to qualified immunity on
Mr. Brooks’s excessive force claim.
I
BACKGROUND
A. Facts
On June 18, 2008, Aurora Police Department Officer
George Lill and his partner, Officer Matthew Hix, were
staking out a bakery that they suspected to be a drug
front. At about 5:45 p.m., the officers noticed a silver
Crown Victoria drive through the parking lot adjacent
to the bakery. Although they caught only a glimpse
of the driver, the officers both identified him as
Mr. Brooks, whom they knew from their frequent patrols
in and around Aurora’s Maple Terrace housing pro-
jects. The officers never had seen Mr. Brooks drive
No. 10-3265 3
before (usually his wife drove), so they ran a
search and learned that Mr. Brooks’s driver’s license
was suspended.1 Before they could follow up, however,
they were called away from their stakeout to respond to
a burglary. Officer Lill later filled out a traffic ticket
and obtained a warrant for Mr. Brooks’s arrest.
Three weeks later, on the evening of July 9, Officer
Lill finally served the arrest warrant. Officer Hix was
on vacation, but Officer Lill coordinated service of the
warrant with Officers Garrett Wrobel and Douglas
Rashkow, who were to approach Maple Terrace in a
separate vehicle. Officer Lill arrived at Mr. Brooks’s
apartment first, where he found Mr. Brooks barbecuing
with some friends and neighbors outside his apartment.
His wife was inside.
As the barbecue was nearing its end, Officer Lill ap-
proached the gathering and asked Mr. Brooks to step
aside so they could speak in private. The two men
knew one another because Officer Lill often was
assigned to patrol in and around Maple Terrace.
Officer Lill asked Mr. Brooks if he knew that his
driver’s license was suspended, and Mr. Brooks said
that he did. Officer Lill then informed Mr. Brooks that
he had seen him driving three weeks earlier and that
there was a warrant out for his arrest for driving on
a suspended license. Mr. Brooks responded that
he could not have been driving the car at that time
because his car had not been working, but Officer Lill
1
Mr. Brooks’s driver’s license has been suspended since 1993.
4 No. 10-3265
nevertheless told him that he was under arrest.
Mr. Brooks stated that he would go with Officer Lill, but
first he wanted to tell his wife to bring his wallet and
identification to the police station. Mr. Brooks then “back-
pedaled away from Lill to go to his window to call up
to his wife. When asked why he was walking back away
from Lill . . . , he stated, ‘I’m walking because I want
to know what the reason [for the arrest] was.’” R.27 ¶ 40
(internal citations omitted). Officer Lill followed in
close pursuit.
At this point, Officers Wrobel and Rashkow arrived on
the scene in a squad car, whose on-board video camera
recorded most of what transpired thereafter.2 The re-
cording of the confrontation begins with the scene
already in progress. In the opening shot, Mr. Brooks is
backpedaling rapidly and moving his arms in what
appears to be an attempt to bat away Officer Lill’s
hands. After a couple of seconds, Mr. Brooks stops,
squares to face Officer Lill and sticks his arms out to his
side in a “T”. The camera moves away from the scene
briefly as the squad car turns, but when the camera
settles on the two men, Mr. Brooks has lowered his arms
to stomach level and is facing Officer Lill. The officer
holds a can of pepper spray in his right hand and has
extended his left hand to Mr. Brooks’s chest. A second
later, Officer Lill fires a burst of pepper spray into
Mr. Brooks’s face. Mr. Brooks bends over and puts his
2
The squad car’s on-board camera captured the video of
the scene, but it did not record any sound.
No. 10-3265 5
shirt to his face, attempting to wipe his eyes. Officer Lill
approaches, accompanied by Officer Rashkow, who has
exited the squad car. Four seconds after the first spray,
Officer Lill applies a second burst. Mr. Brooks then
falls over a lawn chair and lands facedown on the
ground, incapacitated. The time between Mr. Brooks’s
backpedaling and his incapacitation is about seventeen
seconds, the time between the backpedaling and the first
burst of pepper spray, about ten.
After he had been immobilized, Mr. Brooks was
arrested, transported to jail and charged with driving on
a suspended license and resisting a peace officer in the
performance of his duties.3 He was acquitted of both
charges in a bench trial.
Some of the details of what transpired remain
in dispute. According to Mr. Brooks and several corro-
borating witnesses, whose version of events we are
obliged to believe at the summary judgment stage,
his Crown Victoria was broken down on June 18, so he
could not have been driving when Officers Lill and
Hix claimed to have seen him. Mr. Brooks presented a
receipt for an auto part, purchased on June 19, which
he says was necessary to make the car run again. In
addition, he introduced evidence that he claims casts
3
At the time of Mr. Brooks’s arrest, 720 ILCS 5/31-1(a) pro-
vided: “A person who knowingly resists or obstructs the
performance by one known to the person to be a peace officer
or correctional institution employee of any authorized act
within his official capacity commits a Class A misdemeanor.”
6 No. 10-3265
doubt on the ability of Officers Lill and Hix to have
seen the Crown Victoria or its driver from their surveil-
lance position in front of the bakery.
Mr. Brooks therefore was surprised when Officer Lill
told him that he had been seen driving and that there
was a warrant for his arrest. He also was surprised
because he had spoken with Officer Lill a day or two
before the arrest, and the subject of the warrant
had not come up. Nevertheless, Mr. Brooks said, “Okay,”
but told Officer Lill that he was going to call through
the window to his wife and ask her to bring his wallet
and identification to the police station. R.24-3 at 59.
Mr. Brooks then “back[]pedaled” away, id. at 61, but
Officer Lill followed and told him that he was not going
to tell anybody anything. Officer Lill attempted to grab
Mr. Brooks’s wrist, but Mr. Brooks evaded his grasp
and raised his arms shoulder level into the air, saying,
“What did I do?,” and then Officer Lill “caught [him] by
the arm, and . . . sprayed the spray.” Id. at 61-62.4
Mr. Brooks’s testimony is unclear on precisely when
Officer Lill informed him that he was under arrest, but
at several points Mr. Brooks states that it occurred
before he began backpedaling. He maintains, however,
that he made his acquiescence to the arrest plain to
Officer Lill and that he never attempted to resist. In
4
Mr. Brooks intimates in his deposition testimony that the
second burst of pepper spray may have been fired by
Officer Rashkow. However, it is clear from the videotape
that both bursts were fired by Officer Lill.
No. 10-3265 7
addition, two of Mr. Brooks’s neighbors testified that
Officer Lill repeatedly directed racial slurs at Mr. Brooks
during the course of the arrest.
According to Officer Lill, when he initially informed
Mr. Brooks that there was a warrant out for his arrest,
he placed his hand on Mr. Brooks’s arm to take him
into custody. At this point, Mr. Brooks broke away
from the officer’s grasp and ran backwards. Officer Lill
pursued and issued several commands to Mr. Brooks to
get on the ground. Although Officer Lill had not ex-
pected any resistance given what he knew of Mr. Brooks
from their previous acquaintance, he now feared that
Mr. Brooks might attempt to flee or to attack him. There-
fore, he administered the pepper spray, and, when
Mr. Brooks failed to submit, he repeated his commands
and administered the pepper spray again, at which
point Mr. Brooks was rendered prostrate.
B. Proceedings Before the District Court
Mr. Brooks filed this lawsuit against Officers Lill,
Rashkow and Wrobel and their employer, the City
of Aurora. The complaint sought recovery under 42 U.S.C.
§ 1983 for false arrest, false imprisonment and excessive
force in violation of the Fourth Amendment’s prohibi-
tion of unreasonable seizures, as well as an array of
claims under Illinois law. The defendants asserted quali-
fied immunity and moved for summary judgment on
the federal false arrest and excessive force claims.
The district court held that the officers had probable
cause to believe that Mr. Brooks had committed the
8 No. 10-3265
crime of resisting a peace officer and therefore that the
defendants were entitled to summary judgment on the
§ 1983 false arrest claim. Moreover, although the defen-
dants did not move for summary judgment on the § 1983
false imprisonment claim, the district court determined
sua sponte that the existence of probable cause defeated
that claim as well. Finally, the district court held that
the defendants were entitled to summary judgment on
the excessive force claim because it had not been
clearly established that the use of pepper spray in the
situation facing the officers would violate the Consti-
tution. Accordingly, the district court granted sum-
mary judgment in favor of the defendants on all of
Mr. Brooks’s claims under federal law and dismissed
the supplemental state law claims without prejudice.
This appeal followed.
II
DISCUSSION
A. Standard of Review and Qualified Immunity
We review the district court’s decision to grant sum-
mary judgment de novo, resolving all factual disputes
and making all reasonable inferences in favor of the
nonmoving party, in this case, Mr. Brooks. McAllister
v. Price, 615 F.3d 877, 881 (7th Cir. 2010). Summary judg-
ment is appropriate only if “there is no genuine
dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a).
No. 10-3265 9
Police officers sued under § 1983 often may claim
qualified immunity “when they act in a manner that
they reasonably believe to be lawful.” Gonzalez v. City
of Elgin, 578 F.3d 526, 540 (7th Cir. 2009). To deter-
mine whether the defendants are entitled to qualified
immunity, we ask (1) “whether [Mr. Brooks’s] allegations
make out a deprivation of a constitutional right” and
(2) “whether the right was clearly established at the time
of [the defendants’] alleged misconduct.” McAllister,
615 F.3d at 881. “We may address the prongs in which-
ever order we believe best suited to the circumstances
of the particular case at hand.” Id. (citing Pearson v.
Callahan, 129 S. Ct. 808, 818 (2009)); see also Pearson, 129
S. Ct. at 818, 821 (holding that it “should not be re-
garded as mandatory in all cases” to address first
whether a deprivation occurred but “recogniz[ing] that
it is often beneficial” and leaving the sequencing choice
to the discretion of the individual courts); Camreta v.
Greene, 131 S. Ct. 2020, 2032 (2011) (“In general, courts
should think hard, and then think hard again, before
turning small cases into large ones.”). “[P]robable cause
is an absolute defense” to a claim of unlawful arrest
in violation of the Fourth Amendment. Gonzalez, 578
F.3d at 537.
B. False Arrest and Imprisonment
On appeal, Mr. Brooks first asserts that the district
court erred in granting summary judgment on his false
arrest and imprisonment claims because the officers
lacked probable cause to believe that he was committing
10 No. 10-3265
the crime of resisting a peace officer. Specifically, he
contends that the conflicting evidence creates a jury
question with respect to whether Mr. Brooks was
resisting arrest or was complying with Officer Lill’s
orders. In addition, Mr. Brooks contends that a genuine
dispute of material fact remains regarding whether
Officer Lill procured the arrest warrant using knowingly
false testimony, which, Mr. Brooks believes, would
make his arrest an unreasonable seizure.5
We cannot accept this argument. Whether probable
cause exists at the time of an arrest depends on whether
“the facts and circumstances within the officer’s knowl-
edge . . . are sufficient to warrant a prudent person, or
one of reasonable caution, in believing, in the circum-
stances shown, that the suspect has committed, is com-
mitting, or is about to commit an offense.” Gonzalez,
5
The officers arrested Mr. Brooks pursuant to a facially
valid warrant issued by a neutral magistrate. A facially valid
warrant generally shields an officer relying in good faith on
the warrant from liability for false arrest unless the “officer
submitted an affidavit that contained statements he knew to
be false or would have known were false had he not
recklessly disregarded the truth and no accurate information
sufficient to constitute probable cause attended the false
statements.” Lawson v. Veruchi, 637 F.3d 699, 704 (7th Cir.
2011) (quotation marks omitted). Mr. Brooks asserts that he
“presented facts demonstrating that Lill’s sworn statement that
led the way for the warrant was a sham.” Appellant’s Br. 16.
Because we determine that summary judgment was appro-
priate on a different ground, we decline to reach this issue.
No. 10-3265 11
578 F.3d at 537 (internal quotation marks omitted) (alter-
ation in original). In Illinois, the crime of resisting a
peace officer involves the commission of “a physical act
of resistance or obstruction . . . that impedes, hinders,
interrupts, prevents, or delays the performance of
the officer’s duties, such as by going limp or forcefully
resisting arrest.” People v. Agnew-Downs, 936 N.E.2d
166, 173 (Ill. App. Ct. 2010). Illinois courts define “re-
sisting” or “resistance” as “withstanding the force or
effect of or the exertion of oneself to counteract or de-
feat.” Id. Importantly for our purposes, “[r]esisting even
an unlawful arrest of a known police officer violates the
statute.” Hardrick v. City of Bolingbrook, 522 F.3d 758,
762 (7th Cir. 2008) (citing People v. Villarreal, 604 N.E.2d
923, 926-27 (Ill. 1992), and People v. Locken, 322 N.E.2d 51,
53-54 (Ill. 1974)).6
In the present case, Mr. Brooks and Officer Lill both
testified that, after Officer Lill informed him that he was
under arrest, Mr. Brooks backpedaled away, escaped
Officer Lill’s attempt to grab his wrist and raised his
arms to his shoulders.7 Further, the videotape shows
6
See also 720 ILCS 5/7-7 (“A person is not authorized to use
force to resist an arrest which he knows is being made either
by a peace officer or by a private person summoned and
directed by a peace officer to make the arrest, even if he
believes that the arrest is unlawful and the arrest in fact
is unlawful.”).
7
In his briefs on appeal, Mr. Brooks denies that he
(continued...)
12 No. 10-3265
that Mr. Brooks repeatedly, physically rebuffed Officer
Lill’s attempts to grasp him and that, after he had
stopped backtracking, Mr. Brooks turned to face Officer
Lill and threw out his arms in what could be construed
as a resisting or defensive posture.
Although there may be a genuine dispute of material
fact with respect to whether Mr. Brooks intentionally
attempted to “withstand[] the force or effect of” Officer
Lill’s efforts to arrest him in such a way as to “im-
pede[], hinder[], interrupt[], prevent[], or delay[] the
performance of [Officer Lill’s] duties,” Agnew-Downs,
936 N.E.2d at 173, the undisputed facts suffice to
establish that a reasonable officer could have believed
that he did. That reasonable belief is not enough
to convict Mr. Brooks of the crime—as attested to by
his state-court acquittal—but it is enough to cloak the
officers with immunity from suit. See Wheeler v. Lawson,
539 F.3d 629, 634 (7th Cir. 2008).
Moreover, although Officer Lill attempted to seize
Mr. Brooks before probable cause for resisting arrest
arose, Mr. Brooks’s evasion of detention means that a
successful Fourth Amendment seizure did not occur
until after Mr. Brooks was incapacitated by the pepper
spray. See Acevedo v. Canterbury, 457 F.3d 721, 725 (7th
(...continued)
backtracked or attempted to break away from Officer Lill’s
grasp. However, these denials contradict Mr. Brooks’s own
deposition testimony and his admissions on summary judg-
ment in the district court.
No. 10-3265 13
Cir. 2006) (explaining that physical force that, under
the totality of the circumstances, does not “detain the
plaintiff significantly” is not a seizure); see also California
v. Hodari D., 499 U.S. 621 (1990). Officer Lill testified
that, after he had informed Mr. Brooks that he was
under arrest, he placed his hand on Mr. Brooks’s wrist
in an attempt to handcuff him, but Mr. Brooks “made
a jerking motion and broke free of [Officer Lill’s]
grasp.” R.28-3 at 15. Although a seizure can occur
even where “the restraint on the individual’s freedom
of movement is brief,” here the initial grasp did not
“detain [Mr. Brooks] significantly.” Acevedo, 457 F.3d at
724-25. Indeed, Mr. Brooks maintains that his freedom
of movement was not curtailed at all until after he had
backpedaled away from the officer. See R.24-3 at 60-61.
The attempted seizure began when Officer Lill went to
lay hands on Mr. Brooks, but Mr. Brooks’s resistance
prevented the action from reaching its completion, and,
under California v. Hodari D., 499 U.S. 621, 626-29 (1990),
Officer Lill’s declaration that Mr. Brooks was under
arrest did not suffice to establish a seizure until
Mr. Brooks finally submitted.8
Thus, we need not consider whether Officer Lill’s
warrant was procured with false testimony, because, at
8
See California v. Hodari D., 499 U.S. 621, 626-29 (1990) (holding
that, when a police officer has attempted to effect a stop or an
arrest with an assertion of authority, a Fourth Amendment
seizure does not occur unless the suspect actually yields to
the assertion).
14 No. 10-3265
the time Mr. Brooks was seized, the officers had
probable cause to arrest him for resisting a peace officer.
See Devenpeck v. Alford, 543 U.S. 146, 153-55 (2004)
(holding that, if an officer has probable cause to arrest
a suspect for any crime, there is no Fourth Amendment
violation even if the officer lacked probable cause
with respect to the actual offense charged); Williams v.
Rodriguez, 509 F.3d 392, 399 (7th Cir. 2007) (explaining
that an officer’s subjective reason for making an arrest
is immaterial so long as “a reasonable officer . . . would
have had probable cause to arrest [the plaintiff] for
any offense”).9 Because “[r]esisting even an unlawful
arrest of a known police officer violates the statute,”
Hardrick, 522 F.3d at 762,1 0 Officer Lill would have had
9
Further, Mr. Brooks does not present any evidence that
Officers Wrobel or Rashkow knew that the warrant was
invalid; therefore, their reliance on the warrant would be
sufficient to grant them qualified immunity even if there
were no probable cause for the resistance charge. See Holmes
v. Vill. of Hoffman Estates, 511 F.3d 673, 680 (7th Cir. 2007).
10
Mr. Brooks submits that, according to the Illinois cases
on which Hardrick v. City of Bolingbrook, 522 F.3d 758, 762 (7th
Cir. 2008), relies, People v. Villarreal, 604 N.E.2d 923 (Ill. 1992),
and People v. Locken, 322 N.E. 2d 51 (Ill. 1974), this principle
bars the arrestee’s defense to criminal liability, but it does not
eviscerate any subsequent civil remedies to which he may
be entitled. Whatever the merits of this contention with
respect to Illinois law, Mr. Brooks’s remedy for unlawful
seizure under the Fourth Amendment depends entirely on
whether the officers had probable cause to believe that he
was criminally liable for resisting a peace officer.
No. 10-3265 15
probable cause to arrest Mr. Brooks for resisting a
peace officer even if the story that he and Officer Hix
had told about seeing Mr. Brooks behind the wheel had
been a rank fabrication. Under these circumstances,
Mr. Brooks’s remedy for the allegedly unlawful procure-
ment of the warrant is a claim for malicious prosecu-
tion under state law, not a federal constitutional claim
for false arrest under § 1983. See Holmes v. Vill. of
Hoffman Estates, 511 F.3d 673, 682 (7th Cir. 2007) (holding
that “probable cause as to one charge will not bar a mali-
cious prosecution claim based on a second, distinct
charge as to which probable cause was lacking”). The
district court dismissed Mr. Brooks’s malicious prosecu-
tion claim without prejudice, leaving him free to refile
that claim in state court.
Mr. Brooks also contends that the district court erred
by sua sponte granting the defendants summary judg-
ment on the false imprisonment claim without first
offering Mr. Brooks a chance to respond and marshal
his evidence. The district court held that the false impris-
onment claim foundered for the same reason as the
false arrest claim. We agree. Although Mr. Brooks main-
tains that claims for false arrest and false imprisonment
are analytically distinct, he does not explain why the
probable cause inquiry would be different for his false
imprisonment claim under these circumstances, and
we cannot perceive any reason that it would be.
C. Excessive Force
Finally, Mr. Brooks challenges the district court’s deci-
sion that the officers are entitled to qualified immunity
16 No. 10-3265
on the excessive force claim. Even when a police officer
has probable cause to execute an arrest, he still may
have committed an unreasonable seizure “if, judging
from the totality of circumstances at the time of the
arrest, the officer used greater force than was reasonably
necessary to make the arrest.” Gonzalez, 578 F.3d at
539 (internal quotation marks omitted). In making this
determination, the Supreme Court has directed us to
consider (1) “ ‘the severity of the crime at issue’ ”;
(2) “ ‘whether the suspect poses an immediate threat to the
safety of the officers or others’ ”; and (3) “ ‘whether he is
actively resisting arrest or attempting to evade arrest by
flight.’ ” Cyrus v. Town of Mukwonago, 624 F.3d 856, 861 (7th
Cir. 2010) (quoting Graham v. Connor, 490 U.S. 386, 396
(1989)). According to Mr. Brooks, the use of pepper spray
against him was an unreasonable use of force given the
relatively minor nature of the traffic offense, the lack
of a threat to officer or public safety and Officer Lill’s
knowledge that Mr. Brooks intended only to tell his
wife to follow him to the police station.
Courts often have held that it is reasonable to use
pepper spray against a suspect who is physically resisting
arrest;11 conversely, when the use of pepper spray is
gratuitous or unprovoked, courts often have considered
it excessive.12 See generally Vinyard v. Wilson, 311 F.3d
11
See Vinyard v. Wilson, 311 F.3d 1340, 1348 & n.12 (11th Cir.
2002).
12
See, e.g., Gonzalez v. City of Elgin, 578 F.3d 526, 541 (7th Cir.
2009); see also Tracy v. Freshwater, 623 F.3d 90, 98-99 (2d Cir.
(continued...)
No. 10-3265 17
1340, 1348 & nn.11-12 (11th Cir. 2002) (citing cases). As
we have stated, a reasonable police officer could have
believed that Mr. Brooks was resisting arrest. Although,
at this stage of the litigation, we must believe Mr. Brooks
when he says that he had communicated his willingness
to submit to arrest, his actions readily could be con-
strued to belie his words; indeed, Mr. Brooks employed
a number of moves designed to thwart Officer Lill’s
attempts to take him into custody. Additionally, given
the unique risks that effecting an in-home arrest
warrant poses to the arresting officers, Officer Lill had
a recognized interest in taking Mr. Brooks into custody
outside his apartment. See Maryland v. Buie, 494 U.S. 325,
333 (1990) (“[U]nlike an encounter on the street or
along a highway, an in-home arrest puts the officer at the
disadvantage of being on his adversary’s ‘turf.’ An
ambush in a confined setting of unknown configuration
is more to be feared than it is in open, more familiar
surroundings.”). An officer, faced with a suspect fleeing
toward his home and ignoring police commands, is not
obliged to give that suspect an opportunity to retreat
into his home and, perhaps, to fortify himself or to
escape before the officer employs reasonable means of
incapacitation. Cf. United States v. Norris, 640 F.3d 295,
303 (7th Cir. 2011) (holding that an officer’s single use
of a taser was reasonable where used to subdue an
(...continued)
2010); Henderson v. Munn, 439 F.3d 497, 502-03 (8th Cir. 2006);
Vinyard, 311 F.3d at 1348-49; Adams v. Metiva, 31 F.3d 375,
387 (6th Cir. 1994).
18 No. 10-3265
arrestee who had failed to accede to repeated police
commands to stop his retreat into his home).
Mr. Brooks contends, however, that the pepper spray
was not applied until he had ceased backtracking and
was passively facing the officers, and this description
of events at least arguably squares with the video. Ac-
cording to Mr. Brooks, pepper spray therefore was
not needed to effect his arrest.
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 situa-
tion 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 rea-
sonable 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 offi-
cer’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
No. 10-3265 19
(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 applica-
tion of the pepper spray was not “a reasonably propor-
tionate 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.
Conclusion
For the foregoing reasons, the judgment of the district
court is affirmed.
A FFIRMED
7-6-11