Brooks v. City of Aurora, Ill.

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