United States Court of Appeals

For the Eighth Circuit

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No. 18-1148

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Tom Johnson,

lllllllllllllllllllllPlaintiff - Appellee,

v.

Patrick McCarver, in his individual and official capacity as an officer of the City

of Minneapolis; City of Minneapolis for John LaLuzerne, Deceased,

lllllllllllllllllllllDefendants - Appellants,

City of Minneapolis,

lllllllllllllllllllllDefendant.

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Appeal from United States District Court

for the District of Minnesota - Minneapolis

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Submitted: February 13, 2019

Filed: November 1, 2019

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Before LOKEN, COLLOTON, and KELLY, Circuit Judges.

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COLLOTON, Circuit Judge.

Tom Johnson sued Sergeant Patrick McCarver and Officer John LaLuzerne

under 42 U.S.C. § 1983, alleging that the officers violated his constitutional rights by

carrying out an arrest without probable cause and in retaliation for speech, falsifying

a police report, using excessive force against him, and conspiring to violate hisrights. 

The officers unsuccessfully moved for summary judgment, and they appeal the

district court’s denial of qualified immunity. We affirm in part and reverse in part.

I.

Johnson is a 6-foot 3-inch, 284-pound professional football player, who most

recently played defensive tackle for the Minnesota Vikings. Because this appeal

arisesfromthe denial of a motion for summary judgment, we recite any disputed facts

in the light most favorable to Johnson.

On October 5, 2014, around 2:15 a.m., Johnson was waiting inside the lobby

of a nightclub called “Seven” for a parking attendant to return with his car. The club

had closed at 2:00 a.m, but Johnson, along with other patrons, remained inside. 

Bryant Webster, the club’s lead security doorman, approached Johnson. According

to Johnson, Webster told Johnson that he needed to leave because his boots violated

the dress code. Johnson argued that he should be allowed to wait in the lobby, and

Webster walked away.

Webster subsequently told Sergeant Patrick McCarver, an off-duty police

officer working for the club, that Johnson needed to leave. McCarver approached

Johnson and told him to leave. Johnson explained to McCarver that he was waiting

for his car and showed him a valet parking receipt. He questioned why McCarver

wassingling himout when others were also waiting for their cars. McCarver’sfellow

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off-duty officer, John LaLuzerne, walked over and also told Johnson he needed to

leave.

McCarver put his hand on Johnson’s tricep and nudged him towards the door. 

Johnson began walking backward toward the door, telling the officers, “you don’t

have to put your hands on me,” and asking them, “why are you touching me”? The

officers guided Johnson toward the door, and McCarver then shoved him against it. 

Johnson pressed against the door, which opened slightly, and then bounced back

towards the officers. McCarver directed pepper spray at Johnson, and both officers

then pushed him out the door.

Outside the club, Johnson called a car to drive him home. While waiting for

the car to arrive, Johnson sat on a planter directly outside the club. More than fifteen

minutes later, the officers walked out of the club, and Johnson began filming them

with his cell phone camera. McCarver saw Johnson, approached him, and asked for

hisidentification. Johnson said that he possessed his identification, but was not going

to give it to McCarver, because he had not “done anything wrong.”

McCarver slapped the cell phone out of Johnson’s hand, and the phone hit the

ground and shattered. Johnson stood up, bent over, picked up the phone, and sat back

down. Both officers turned on their taser guns, and McCarver tased Johnson in the

back, pulling the trigger twice. The first time McCarver squeezed the trigger for nine

seconds; the second time for five. Johnson fell to the ground, and the officers put him

on his side.

The officers handcuffed Johnson and took him to the Hennepin County Jail for

booking. The county attorney charged Johnson with trespass, disorderly conduct, and

obstructing legal process. After a week-long trial, a jury acquitted him of all charges.

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Johnson sued McCarver, LaLuzerne, and the City of Minneapolis, alleging

claims under federal and state law. He voluntarily dismissed his claim against the

City and his state-law claim against the officers. The officers moved for summary

judgment on the federal claims, arguing that qualified immunity precluded the

lawsuit. The district court denied the motion, concluding that there were genuine

disputes of material fact that required a trial.

II.

As an initial matter, Johnson contends that because the district court

determined that factual disputes precluded summary judgment, we lack jurisdiction

to review those rulings. We ordinarily lack jurisdiction to decide “which facts a party

may, or may not, be able to prove at trial,” Johnson v. Jones, 515 U.S. 304, 313

(1995), and we are “constrained by the version of the facts that the district court

assumed or likely assumed in reaching its decision.” Thompson v. Murray, 800 F.3d

979, 983 (8th Cir. 2015). But we do have “authority to decide the purely legal issue

of whether the facts alleged by the plaintiff are a violation of clearly established law.” 

Franklin ex rel. Estate of Franklin v. Peterson, 878 F.3d 631, 635 (8th Cir. 2017). 

The officers ask us to review that purely legal issue, so we have jurisdiction.

When a defendant asserts a defense of qualified immunity, a plaintiff must

show that the facts taken in the light most favorable to him establish (1) that the

defendant violated his constitutional right and (2) that the right was clearly

established at the time of the incident. Pearson v. Callahan, 555 U.S. 223, 232

(2009). A right is “clearly established” only if the violation was “beyond debate”

such that only a plainly incompetent officer or a knowing lawbreaker would engage

in the alleged misconduct. District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018)

(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).

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A.

Johnson first alleges violations of the First and Fourth Amendments arising

from his arrest. He contends that the officers violated his Fourth Amendment right

to be free from an unreasonable seizure without probable cause. Under the First

Amendment, he claims that the officers carried out a retaliatory arrest based on his

exercise of a right to free speech when he filmed the officers. An arrest generally

does not violate the Fourth Amendment or the First Amendment when it issupported

by probable cause that the arrestee committed a misdemeanor offense in the presence

of an arresting officer. See Nieves v. Bartlett, 139 S. Ct. 1715, 1723-24 (2019);

Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001). The officers here are

entitled to qualified immunity on these First and Fourth Amendment claims if

Johnson’s arrest was supported by at least arguable probable cause. Waters v.

Madson, 921 F.3d 725, 741 (8th Cir. 2019); Walker v. City of Pine Bluff, 414 F.3d

989, 992 (8th Cir. 2005). Arguable probable cause existsif it turns out that an officer

lacked adequate grounds for an arrest, but made an objectively reasonable mistake

about the existence of probable cause. Borgman v. Kedley, 646 F.3d 518, 523 (8th

Cir. 2011). The officers contend that there was at least arguable probable cause to

arrest Johnson for trespass, obstruction of justice, and disorderly conduct.

A person commits a misdemeanor under Minnesota law when he “trespasses

on the premises of another and, without claim of right, refuses to depart from the

premises on demand of the lawful possessor.” Minn. Stat. § 609.605, subd.1 (b)(3). 

A “demand of the lawful possessor” may come from the possessor or his agent. State

v. Dubose, No. A15-0069, 2015 WL 9437521, at *2 (Minn. Ct. App. Dec. 28, 2015);

see State v. Quinnell, 151 N.W.2d 598, 602-03 (Minn. 1967). The term “agent” is

“one of wide signification” in this context, and a police officer can be the agent of a

private landowner for the purpose of conveying a revocation of license or a demand

to depart. Quinnell, 151 N.W.2d at 602.

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It is undisputed that after the club closed, the lead security doorman Webster

told Johnson that he was no longer allowed in the club and needed to leave. Moments

later, Webster told McCarver, while pointing at Johnson, that “[h]e needs to leave

right now.” McCarver then approached Johnson and also told him to leave. 

LaLuzerne told Johnson to leave. Johnson admitsthat he did not leave promptly after

receiving McCarver’s instruction to exit. He instead argued with McCarver, first

telling him that he was waiting for his vehicle and then asking why he was being

singled out. Johnson contends that he did not trespass, however, because he had a

claim of right to remain in the lobby to wait for his car, and minimal further

investigation would have verified that right.

We conclude that the officers are entitled to qualified immunity on these

claims. Even if Johnson initially had a right to wait in the lobby, a reasonable officer

could have believed that Webster or the officers themselves revoked that right by

directing Johnson to leave. See Quinnell, 151 N.W.2d at 602-03; State v. Bragg, No.

A17-0287, 2018 WL 817283, at *3 (Minn. Ct. App. Feb. 12, 2018). Minimal further

investigation would not have affected that conclusion. What the officers saw, in

addition to what Webster told McCarver, along with Johnson’s resistance to the

officers’ commands to leave, provided arguable probable cause to arrest for trespass. 

Johnson also claims that there is a factual dispute about whether McCarver

heard Webster tell Johnson that he needed to leave. Without hearing that direction,

he argues, McCarver lacked probable cause that Johnson was trespassing. But

whether or not McCarver heard Webster’s statement to Johnson, it is undisputed that

Webster told McCarver that Johnson needed to leave; that Johnson did not hear the

Webster-McCarver communication does not create a genuine dispute. Johnson then

refused to leave after McCarver and LaLuzerne told him to do so. These undisputed

facts are sufficient to establish arguable probable cause that Johnson trespassed, so

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any dispute about McCarver hearing Webster’s communication to Johnson is not

material.

In denying qualified immunity, the district court thought “[t]he fact that the

officers allowed a substantial length of time to pass before arresting Johnson casts

doubt on the officers’ claimthat they had probable cause to arrest him.” That analysis

appears to confuse the subjective beliefs of the officers with the objective

requirements of the Fourth Amendment. Whether the officers subjectively thought

there was probable cause to arrest for trespass is irrelevant. Carpenter v. Gage, 686

F.3d 644, 649 (8th Cir. 2012). We examine only the objective question whether the

circumstances known to the officers established a fair probability that Johnson

committed an offense. Johnson’s refusal to leave after agents of the club revoked his

license to remain established arguable probable cause to believe that he trespassed. 

Arguable probable cause that he had committed an offense inside the club continued

to exist fifteen minuteslater when the officers arrested Johnson. Whether the officers

exercised poor judgment in electing to arrest Johnson after the original dispute was

resolved is not pertinent to the objective probable-cause analysis under the Fourth

Amendment.

The officers also claim qualified immunity on Johnson’s claim under the Due

Process Clause. Johnson asserts that the officers deprived him of liberty without due

process of law by falsifying a report of his arrest. Any deprivation of Johnson’s

liberty before his criminal trial, however, is governed by the Fourth Amendment and

its prohibition on unreasonable seizures. Manuel v. City of Joliet, 137 S. Ct. 911, 917

(2017). (On this issue, Manuel abrogated Moran v. Clarke, 296 F.3d 638, 646-47

(8th Cir. 2002) (en banc).) Any post-trial claim based on the alleged false report

requires a showing that the report was used to deprive Johnson of liberty in some

way. See Winslow v. Smith, 696 F.3d 716, 735 (8th Cir. 2012). The jury acquitted

Johnson, and he suffered no deprivation of liberty after the trial. Accordingly, there

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isinsufficient evidence to support a finding that the officers violated Johnson’srights

under the Due Process Clause.

For these reasons, the officers are entitled to qualified immunity on Johnson’s

claims alleging false arrest under the Fourth Amendment, retaliatory arrest under the

First Amendment, and deprivation of liberty in violation of the Due Process Clause.

B.

The officers next assert qualified immunity on Johnson’s claims that the

officers violated his Fourth Amendment right to be free from an unreasonable use of

force. Johnson asserts that the officers violated his rights when they shoved him in

the club lobby, applied pepper spray in his face at the club’s exit, and stunned him

with a taser gun while he waited for a car outside the club. An officer’s use of force

violatesthe Fourth Amendment if it is objectively unreasonable. Graham v. Connor,

490 U.S. 386, 397 (1989). Reasonableness is judged from the perspective of

reasonable officers on the scene, “in light of the facts and circumstances confronting

them, without regard to their underlying intent or motivation.” Id. at 396-97.

Johnson first claims that the officers used excessive force when they pushed

him in the club lobby and applied pepper spray at the club’s exit. Johnson

acknowledged that he initially did not comply with McCarver’sinstructionsto leave,

and that he began backing toward the door only after McCarver pushed him in that

direction. Surveillance video shows that when Johnson made contact with the door,

the door opened slightly. But instead of exiting through the partially-opened door,

Johnson stopped and raised his hands in front of his chest. Although Johnson

testified that he was trying to leave in compliance with the officers’ orders, a

reasonable officer could have believed that Johnson was resisting, and that it was

necessary to use force to eject him from the club. The amount of force applied was

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not unreasonable under the circumstances, given Johnson’s apparent resistance, size,

and strength. The officers are thus entitled to qualified immunity on Johnson’s claims

alleging use of excessive force inside the club.

McCarver asserts that he is also entitled to qualified immunity on Johnson’s

claim that McCarver used excessive force by tasing him outside the club. On this

point, we agree with Johnson. There are genuine disputes of material fact about

whether McCarver’s use of the taser violated Johnson’s clearly established rights

under the Fourth Amendment.

It is undisputed that more than fifteen minutes after Johnson exited the club,

the officers went outside and saw that Johnson was sitting on a planter while filming

them with his cell phone. McCarver approached Johnson and knocked Johnson’s

phone to the ground. Johnson stood up, bent over, picked up his phone, and sat back

down on the planter.

The parties disagree about what happened next. Johnson testified that “[o]nce

[he] sat down,” McCarver tased him in the back. The officers contend that Johnson

stood up again before McCarver fired his taser: LaLuzerne testified that Johnson

stepped onto the planter and “lunged back down at” him; McCarver asserts that

Johnson “stepped onto the bench” surrounding the planter, and pushed LaLuzerne

away from him. The officers argue that we should disregard Johnson’s account

because it is “blatantly contradicted” by video footage from a security camera. See

Scott v. Harris, 550 U.S. 372, 380 (2007). The district court saw no blatant

contradiction and concluded that “the video is more supportive of Johnson’s version

of the incident.” Having reviewed the evidence ourselves, we deem it inconclusive. 

In reviewing the denial of a motion for summary judgment, therefore, we accept

Johnson’s version that he was seated peacefully on the planter when McCarver tased

him.

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At the time of the incident, it was clearly established that it was unreasonable

under the Fourth Amendment to apply a taser to a “nonviolent, suspected

misdemeanant who was not fleeing or resisting arrest, [and] who posed little to no

threat to anyone’s safety.” Brown v. City of Golden Valley, 574 F.3d 491, 499 (8th

Cir. 2009). Taking the facts in the light most favorable to Johnson, McCarver

violated this clearly established right when he applied the taser to Johnson. The

district court correctly determined that there are genuine issues of material fact that

preclude summary judgment on this claim.

* * *

For the foregoing reasons, we reverse the district court’s order denying

qualified immunity for the officers on Johnson’s claims alleging false arrest,

retaliatory arrest, deprivation of liberty without due process, and use of excessive

force inside the club. We affirm the order with respect to Johnson’s claim against

McCarver alleging use of excessive force by the taser.

KELLY, Circuit Judge, concurring in part and dissenting in part.

I agree that the officers are entitled to qualified immunity on Johnson’s

deprivation-of-liberty claim because he suffered no post-trial deprivation of liberty. 

I also agree the officers are not entitled to qualified immunity on Johnson’s claim for

excessive force arising from the tasing. I disagree, however, that the officers are

entitled to qualified immunity on Johnson’s remaining Fourth Amendment claimsfor

false arrest and excessive force, as well as his First Amendment retaliation claim.

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I

The court concludes that the officers are entitled to qualified immunity on

Johnson’s claims for false arrest under the Fourth Amendment and retaliatory arrest

under the First Amendment because the officers had arguable probable cause to arrest

Johnson for trespass. I disagree.

A person is guilty of misdemeanor trespass in Minnesota if he or she

“intentionally . . . trespasses on the premises of another and, without claim of right,

refuses to depart from the premises on demand of the lawful possessor.” Minn. Stat.

§ 609.605. “Express or implied consent”—that is, a license to remain on the

premises—from someone “who has the authority to give such consent is a defense to

the charge of criminal trespass.” State v. Hoyt, 304 N.W.2d 884, 889 (Minn. 1981).

An act is not trespass if “committed in good faith by one who actually . . . believes

that he is authorized” to remain on the premises. State v. Brechon, 352 N.W.2d 745,

749 (Minn. 1984) (cleaned up). A person’s belief that he has a right to remain on the

premises need not be factually correct; a mistaken but reasonable claim of right is a

defense to trespass. Hoyt, 304 N.W.2d at 891.

Viewing the record in the light most favorable to Johnson, the officers lacked

arguable probable cause to arrest him for trespass. Just before 2:00 a.m. on October

5, 2014, Johnson stepped outside Seven to give his ticket to the valet and then waited

for his car inside, where about a dozen others were also waiting. Seven’s doorman,

Bryan Webster, asked Johnson to leave. Johnson told Webster he was waiting for the

valet, and Webster responded that his boots violated the club dress code. Johnson

explained that he had been to Seven before with its owners, wearing the same boots,

and said he did not understand why he was being singled out from everyone else also

waiting in the lobby. When Johnson showed Webster his valet ticket, Webster asked,

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“Who are you?” Johnson responded, “I’m nobody.” Webster said, “F*** it,” and

walked away.

Minneapolis police officers Patrick McCarver and John LaLuzerne were also

inside Seven that evening, working as security in their full police uniforms.

1 After

Webster had walked away fromJohnson, one of the officers announced that everyone

should leave the club. Johnson assumed this did not include those waiting for the

valet because, when he looked around, no one else responded to the announcement

by leaving. McCarver soon approached Johnson and told him to leave. Johnson

showed him his valet ticket and explained he was waiting for his car. At this,

McCarver pushed Johnson. Johnson began backing up toward the exit, telling

McCarver that it was not necessary to push. AsJohnson was backing up, the officers

continued to push him. Johnson placed his hands near his chest to protect himself,

and did not curse or raise his voice. Once Johnson was almost at the exit, McCarver

pushed him hard, and Johnson bounced off the door. Johnson said, “You don’t have

to do that.” McCarver then sprayed Johnson’s face with pepper spray, and the

officers pushed him out the door.

A reasonable officer would understand that Johnson was no different than any

other person waiting in the lobby for the valet to bring around their car. While

Webster told Johnson he would have to leave because the owner would not allow his

boots, Johnson explained the owner had previously allowed his boots. Hearing this

explanation, Webster walked away. When McCarver approached Johnson and told

him to leave, Johnson said he was in fact leaving, but was just waiting for the valet

like the rest of the patrons—a claim of right to be inside the lobby. See Hoyt, 304

N.W.2d at 891. McCarver then pushed Johnson as he was backing up toward the exit. 

Viewing the factsin the light most favorable to Johnson, he was not refusing to leave

1Their doing so was in violation of police department policy.

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the premises, and his right to remain in the lobby had not been revoked. Rather, he

was lawfully inside awaiting the valet. As such, the elements of trespass were not

satisfied, and the officers are not entitled to qualified immunity on Johnson’s false

arrest claim.

II

Because I believe the officers lacked even arguable probable cause to arrest

Johnson, I also believe his First Amendment retaliation claim remains viable. 

Johnson alleges the officers arrested him in retaliation for recording them with his

cell phone outside the club. To succeed on a claim for retaliatory arrest, Johnson

must show (1) he engaged in a protected activity; (2) the government official took

adverse action against him that would chill a person of ordinary firmness from

continuing the activity; (3) the adverse action was motivated at least in part by the

exercise of the protected activity; and (4) lack of probable cause or arguable probable

cause for the arrest. See Hoyland v. McMenomy, 869 F.3d 644, 655 (8th Cir. 2017).

The officers do not dispute the facts underlying this claim, but instead argue

they are entitled to qualified immunity because Johnson’s right to record and

photograph the officers was not clearly established. While thisCourt has not decided

this precise question, I would join every circuit that has done so and hold that the

First Amendment protects the right to record police officers in public. See Fields v.

City of Philadelphia, 862 F.3d 353, 360 (3d Cir. 2017); Turner v. Lieutenant Driver,

848 F.3d 678, 690 (5th Cir. 2017); ACLU of Ill. v. Alvarez, 679 F.3d 583, 595 (7th

Cir. 2012); Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011); Smith v. City of

Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000); Fordyce v. City of Seattle, 55 F.3d

436, 439 (9th Cir. 1995).

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Moreover, absent binding authority from this Court, a “robust consensus of

cases of persuasive authority” can itself “clearly establish” the federal right Johnson

alleges. See Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015); Ashcroft v. al-Kidd, 563

U.S. 731, 742 (2011). By the time the officers arrested Johnson, all four circuit courts

that had considered the question decided that filming the police in public is a First

Amendment right. See Alvarez, 679 F.3d at 595; Glik, 655 F.3d at 82; Smith, 212

F.3d at 1333; Fordyce, 55 F.3d at 439. This “robust consensus,” together with our

general pronouncement that a citizen’s “right to exercise First Amendment freedoms

without facing retaliation fromgovernment officialsis clearly established,” Baribeau

v. City of Minneapolis, 596 F.3d 465, 481 (8th Cir. 2010), was more than sufficient

to put McCarver and LaLuzerne on notice that they were violating Johnson’s clearly

established right, see al-Kidd, 563 U.S. at 741. Consequently, I would hold that the

officers are not entitled to qualified immunity for this claim.

III

Finally, the court concludes the officers are entitled to qualified immunity on

Johnson’s claim of excessive force for using pepper spray and pushing him inside the

club, because such force “was not unreasonable under the circumstances.” I disagree.

An officer’s use of force violates the Fourth Amendment if it is “objectively

unreasonable.” Tatum v. Robinson, 858 F.3d 544, 547 (8th Cir. 2017). 

Reasonableness depends on the circumstancessurrounding the use of force, including

“the severity of the crime at issue, whether the suspect poses an immediate threat to

the safety of the officers or others, and whether he is actively resisting arrest or

attempting to evade arrest by flight.” Id. (quoting Graham v. Connor, 490 U.S. 386,

396 (1989)).

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Here, viewing the facts in the light most favorable to Johnson, a jury could find

the officers were objectively unreasonable in pushing and pepper-spraying him. As

to the first Graham factor, Johnson had not committed any crime before McCarver

directly pepper-sprayed hisface, which we have characterized as “significant force.” 

See id. at 550; see also Brown v. City of Golden Valley, 574 F.3d 491, 500 n.6 (8th

Cir. 2009) (citing testimony that “Taser and pepper spray are coequals on the use of

force continuum”). This strongly favors finding excessive force. See Tatum, 858

F.3d at 548; Peterson v. Kopp, 754 F.3d 594, 600 (8th Cir. 2014).

As to the second factor, a reasonable officer would not have thought Johnson

posed an immediate threat to anyone’s safety. Johnson was leaving the club, telling

the officers that they did not need to push him, just before McCarver pepper-sprayed

his face. Johnson made “no verbal threats or physical movements indicating a

threat.” See Tatum, 858 F.3d at 549. Indeed, Eric French, Seven’s manager on duty,

testified that Johnson remained “pretty calm” through the whole ordeal. This further

underminesthe reasonableness of the officers’ conduct. See id.(finding it objectively

unreasonable to use pepper spray on a suspected misdemeanant who was “angrily

arguing” with the police but making no physical or verbal threats).

Third and finally, a reasonable officer would not believe Johnson wasresisting

arrest. Instead, Johnson was trying to leave the lobby as requested when the officer

pepper-sprayed him. In any event, even “[n]oncompliance and arguing do not amount

to active resistance.” See id. Viewing the facts in the light most favorable to

Johnson, the three Graham factors provide no justification for pushing and pepperspraying him and, as a result, the officers’ use of force was objectively unreasonable. 

See id.; Peterson, 754 F.3d at 600.

The officers also argue that the right at issue was not clearly established. But

by the time they acted on October 5, 2014, we had held in Peterson v. Kopp that it

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was objectively unreasonable for the police to use pepper spray on a non-fleeing, nonviolent suspect who “took a few steps backward, put his hands up, and said ‘[y]ou

can’t handle me like that’” immediately before being pepper-sprayed. See Peterson,

754 F.3d at 597, 600. Because these facts are sufficiently similar to this case,

McCarver and LaLuzerne had “fair warning” that their actions were unconstitutional. 

See id. at 600; see also Henderson v. Munn, 439 F.3d 497, 503 (8th Cir. 2006)

(denying qualified immunity to an officer who pepper-sprayed a suspect posing “little

or no threat” to anyone’s safety). McCarver and LaLuzerne violated Johnson’s

clearly established right and qualified immunity does not apply. See Peterson, 754

F.3d at 600.

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