653 F.3d 478 (7th Cir. 2011), 10-3265, Brooks v. City of Aurora, Illinois

Docket Nº:10-3265.
Citation:653 F.3d 478
Opinion Judge:RIPPLE, Circuit Judge.
Party Name:Michael A. BROOKS, Plaintiff-Appellant, v. CITY OF AURORA, ILLINOIS, et al., Defendants-Appellees.
Attorney:John S. Bishof, Jr. (argued), Chicago, IL, for Plaintiff-Appellant. John B. Murphey (argued), Rosenthal, Murphey, Coblentz & Donahue, Chicago, IL, for Defendants-Appellees.
Judge Panel:Before EASTERBROOK, Chief Judge, and RIPPLE and TINDER, Circuit Judges.
Case Date:July 06, 2011
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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653 F.3d 478 (7th Cir. 2011)

Michael A. BROOKS, Plaintiff-Appellant,


CITY OF AURORA, ILLINOIS, et al., Defendants-Appellees.

No. 10-3265.

United States Court of Appeals, Seventh Circuit.

July 6, 2011

Argued Feb. 17, 2011.

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[Copyrighted Material Omitted]

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John S. Bishof, Jr. (argued), Chicago, IL, for Plaintiff-Appellant.

John B. Murphey (argued), Rosenthal, Murphey, Coblentz & Donahue, Chicago, IL, for Defendants-Appellees.

Before EASTERBROOK, Chief Judge, and RIPPLE and TINDER, Circuit Judges.

RIPPLE, 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 officers. 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 suspended license and for resisting a peace officer. The district court granted summary judgment in favor of the 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 arrested for the traffic offense pursuant to a valid warrant. 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.



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 projects. The officers never had seen Mr. Brooks drive 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

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with some friends and neighbors outside his apartment. His wife was inside.

As the barbecue was nearing its end, Officer Lill approached 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 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 " backpedaled 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 recording 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 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 corroborating 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

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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 doubt on the ability of Officers Lill and Hix to have seen the Crown Victoria or its driver from their surveillance 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 addition, two of Mr. Brooks's neighbors testified that Officer Lill repeatedly directed racial slurs at Mr. Brooks during the course of the arrest.


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