Peterson v. Kopp

• Decision Date: 11 June 2014
• Docket Number: No. 12–3776.,12–3776.
• Citation: 754 F.3d 594
• Parties: Robert Aaron PETERSON, Plaintiff–Appellant v. Officer Michael KOPP, in his individual and official capacities; Metropolitan Council, Defendants–Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

754 F.3d 594

Robert Aaron PETERSON, Plaintiff–Appellant

v.Officer Michael KOPP, in his individual and official capacities; Metropolitan Council, Defendants–Appellees.

No. 12–3776.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 21, 2013.

Filed: June 11, 2014.

Zorislav Romanovich Leyderman, argued, Minneapolis, MN, for appellant.

Anthony Garcia Edwards, argued Minneapolis, MN (Andrew David Parker, on the brief), for appellee.

Before RILEY, Chief Judge, BRIGHT and KELLY, Circuit Judges.

KELLY, Circuit Judge.

Robert Peterson sued public transit officer Michael Kopp and Metropolitan Council (collectively “the defendants”) ¹ under 42 U.S.C. § 1983, alleging Kopp violated Peterson's First and Fourth Amendment rights when he arrested him at a downtown St. Paul bus stop. Specifically, Peterson asserts that Kopp arrested him without probable cause, used excessive force, and did so in retaliation for engaging in protected speech. Peterson also brought several state law claims against the defendants. The district court granted summary judgment to the defendants on Peterson's federal claims, finding Kopp was entitled to qualified immunity, and declined to exercise supplemental jurisdiction over Peterson's state law claims. Having jurisdiction under 28 U.S.C. § 1291, we affirm in part, reverse in part, vacate the dismissal of Peterson's state law claims, and remand for further proceedings.

I. Background ²

On April 25, 2011, at approximately 11:00 p.m., Peterson and his friend BriannaBloom were waiting for a bus in downtown St. Paul. While waiting, the two of them sat on top of bicycle lockers (approximately four feet tall) located behind the bus stop. Three young men, also at the bus stop, approached and asked Peterson about the hookah pipe sticking out of his backpack. Peterson and Bloom subsequently agreed to smoke the hookah pipe with them, deciding they could skip the first bus and wait for another to arrive.

Kopp, on duty at the time, observed the five individuals from his squad car. According to the MTPD's Chief of Police, MTPD officers are dispatched to this particular bus stop more than any other stop in downtown St. Paul. Kopp approached the group after noticing they did not take any of the several buses that had stopped. He asked them which buses they were waiting for; because the buses they mentioned had already come and gone while they had been at the stop, Kopp told everyone to leave. Several of the individuals began walking away from the bus stop, though they stayed in the vicinity—walking approximately 6–8 feet away. One man remained at the stop and told Kopp that he did not have to leave as he was entitled to wait at a public bus stop; the two argued with each other for approximately 30–90 seconds before he too walked away. During this exchange, Peterson remained seated on top of the lockers, disassembling the hookah. According to Peterson, disassembly takes approximately one minute.

While still sitting on the bicycle lockers, Peterson said to Kopp, “[w]e are leaving. You don't have to be rude.” Peterson then took out his phone and asked Kopp for his badge number. Kopp responded, “[y]ou have no right to have my badge number.” To which Peterson replied, “I have every right.” Kopp then grabbed Peterson's arm and pulled him off the bicycle lockers. Kopp originally testified that he pulled Peterson off the bicycle lockers to get him going, but later in the same deposition said he pulled him down to place him under arrest. Kopp released Peterson's arm. Peterson then took a few steps backward, put his hands up, and said “[y]ou can't handle me like that.” Immediately after this statement, Kopp pepper sprayed Peterson directly in the face for two seconds. Peterson stumbled around and yelled out, “What the f* * *? What the f* * *? What did I do? I didn't do anything. Police brutality.” Kopp responded, “[y]ou want to see police brutality?” He then pushed Peterson into the bicycle lockers, handcuffed him, and placed him in the back of the squad car. Kopp did not tell Peterson that he was under arrest or was being detained until after he was placed in the car. Kopp issued Peterson a citation for misdemeanor trespass, in violation of Minn.Stat. § 609.605, subd. 1(b)(3).

During his deposition, Peterson testified that he suffered severe pain and burning over his face and both eyes and difficulty breathing immediately following the pepper spray. He had pain, discomfort, and sensitivity to his face and eyes for 5–7 days after his arrest. The skin tissue directly below his left eye also started to peel several days after his arrest. Peterson explained that he is more uncomfortable out in public, believing “some painful experience ... could happen at any point anywhere.” However, he acknowledged that he has not changed his daily activities in any way as a result. Peterson also did not seek medical attention for his physical or emotional symptoms.

The trespass charge against Peterson was later dismissed, and Peterson then brought the instant suit against Kopp and the Metropolitan Council under 42 U.S.C. § 1983. The defendants moved for summary judgment, and the district court granted the motion on the basis of qualified immunity.

II. Discussion

“We review the district court's grant of summary judgment de novo, viewing the record in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party's favor.” Chambers v. Pennycook, 641 F.3d 898, 904 (8th Cir.2011). Summary judgment is proper 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). We also review the finding of qualified immunity de novo. Amrine v. Brooks, 522 F.3d 823, 830 (8th Cir.2008).

Government officials, including police officers, are entitled to qualified immunity, shielding them from liability, “unless the official's conduct violated a clearly established constitutional or statutory right of which a reasonable official would have known.” Chambers, 641 F.3d at 904 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). We analyze qualified immunity in two steps: (1) “whether the facts that a plaintiff has alleged ... make out a violation of a constitutional right”; and (2) “whether the right at issue was ‘clearly established’ at the time of [the] defendant's alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)).

A. Fourth Amendment Unlawful Arrest

Peterson first argues that Kopp violated his Fourth Amendment right to be free from unreasonable seizures by arresting him without probable cause. The parties agree that Peterson was seized, and under arrest, at the moment Kopp pulled Peterson off the bicycle lockers. A police officer may, consistent with the Fourth Amendment, arrest someone without a warrant if the officer has probable cause to believe the person has committed a crime. Baribeau v. City of Minneapolis, 596 F.3d 465, 474 (8th Cir.2010) (citing Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001)). Probable cause exists “when the totality of the circumstances at the time of the arrest are sufficient to lead a reasonable person to believe that the defendant has committed or is committing an offense.” Ulrich v. Pope Cnty., 715 F.3d 1054, 1059 (8th Cir.2013) (quotation omitted). To receive qualified immunity, however, a police officer need only have “arguable probable cause” to make the arrest. Bernini v. City of St. Paul, 665 F.3d 997, 1003 (8th Cir.2012). “Arguable probable cause exists even where an officer mistakenly arrests a suspect believing it is based in probable cause if the mistake is objectively reasonable.” Ulrich, 715 F.3d at 1059 (quotation omitted).

Minnesota's criminal trespass statute reads: “A person is guilty of a misdemeanor if a person 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, subd. 1(b)(3). The Minnesota Court of Appeals has explained that a refusal to depart is a necessary element of Minnesota's trespass statute. State v. Zimmer, 478 N.W.2d 764, 768 (Minn.Ct.App.1991) (finding that as a matter of law an individual could not be guilty of trespass when he immediately left the building and went to his car upon being asked to leave). Under this statute, a refusal to depart does not have to be verbal or protracted. See State v. Quinnell, 277 Minn. 63, 151 N.W.2d 598, 602 (1967) (upholding trespass conviction when a police officer told a man to leave, but the man “said nothing in reply,” and walked back and forth for three minutes); see also Merriam–Webster Online Dictionary, available at http:// www. merriam- webster. com/ dictionary/ refusal (last visited May 30, 2014) (defining “refusal” as “an act of saying or showing that you will not do, give, or accept something” (emphasis added)). Peterson contends that Kopp lacked probable cause to arrest him for trespass because Peterson never refused to depart the bus stop. Rather, any delay in leaving the bus stop was due to disassembling his hookah and asking for Kopp's badge number. No officer, Peterson argues, could reasonably view those actions as a refusal to depart, especially when Peterson stated that he was leaving.

Nevertheless, we find that Kopp had at least arguable probable cause for the arrest based on Peterson's nonverbal conduct. Kopp asked Peterson and the others to leave the bus stop. Yet Peterson remained seated on the bicycle lockers until Kopp ultimately pulled him down. He never made a move to stand up, even during the time Kopp spent talking with one of the other men. Peterson states that he was disassembling his hookah, a process that takes about a minute. Nothing in the record suggests that...