ST. LOUIS (CN) - The 8th Circuit revived a retaliation claim from a hookah smoker who says he was pepper-sprayed and arrested for trying to learn an officer's badge number.
     Robert Peterson claims that he and a friend were waiting for a bus in downtown St. Paul on April 25, 2011, when three men inquired about the hookah pipe sticking out of his backpack. Peterson says he and his friend agreed to wait for a later bus and smoke the hookah with their new acquaintances at the bus stop.
     Michael Kopp, a public transit officer, observed the five smoking the hookah and asked them which bus they were taking. Since the busses they cited had already gone, Kopp ordered the five to leave.
     Peterson remained sitting on the bicycle lockers at the bus stop to dismantle the hookah. He says he chided Kopp for being rude since he was in the process of leaving, then asked the officer for his badge number. Kopp allegedly said Peterson had no right to know his badge number.
     When Peterson responded, "I have every right," Kopp allegedly grabbed Peterson's arm, pulled him off of the bicycle lockers and pepper-sprayed him in the face for two seconds. Peterson says Kopp then pushed him into the bicycle lockers, handcuffed him and placed him in the squad car. Kopp did not tell Peterson that he was under arrest until after he was placed in the car.
     Peterson was cited for misdemeanor trespass. He sued Kopp and the Metropolitan Council for violations of his civil rights, but a federal judge granted the defendants summary judgment, finding Kopp had qualified immunity.
     A three-judge panel with the 8th Circuit revived Peterson's First Amendment retaliatory use-of-force claim Wednesday.
     "The defendants justify the use of pepper spray by arguing that 'Peterson's defiance inspired the other young men present to surround Kopp,'" Judge Jane Kelly wrote for the court. "We note first that there is a factual dispute about whether the others returned to the bus stop. Peterson's testimony is that they stayed 6-8 feet away, not participating in his interaction with Kopp. Moreover, Kopp did not pepper spray any of the other individuals-either before they left or after they allegedly returned. One of the other men argued with Kopp before leaving the bus stop, claiming he did not have to leave as it was public property. Yet Kopp did not pepper spray him for this 'defiance,' even though the surrounding circumstances were the same: he had been told to leave, had not done so, and other individuals were close by during the interaction (in fact closer, because Peterson was still sitting on the bicycle lockers during that conversation). A reasonable jury could conclude, based on this account, that Kopp pepper sprayed Peterson in retaliation for asking for his badge number, and Peterson's First Amendment right was clearly established at the time of the incident. Accordingly, Kopp is not entitled to summary judgment based on qualified immunity from Peterson's retaliatory use of force claim."
     Summary judgment for the defendants was proper, however, on the unlawful arrest claim, "based on Peterson's nonverbal conduct."
     "Kopp asked Peterson and the others to leave the bus stop," Kelly wrote. "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 Kopp knew how long this process should take; in his deposition Kopp explained he did not know hookahs could be disassembled until Peterson began doing so. Peterson also admits he stopped the disassembly process to take out his cell phone. Peterson states that Kopp 'should have known that Mr. Peterson was not playing with his phone but was simply using his phone to make a memo or record Officer Kopp's badge number.' However, this discounts the other surrounding circumstances: Peterson never moved to get off the lockers, remained seated during Kopp's conversation with the other individual, was still manipulating his hookah after the conversation ended, and then stopped disassembling it and pulled out a phone. Even if Kopp lacked probable cause, it was objectively reasonable for Kopp to interpret Peterson's actions as a refusal to leave the bus stop."
     Peterson also cannot pursue an excessive-force claim, the court found.
     "Though we agree the use of force here may have been unreasonable, and acknowledge that Peterson described being pepper sprayed as a painful experience, Peterson has not presented sufficient evidence that he suffered more than de minimis injury," Kelly wrote. "Viewing the facts in the light most favorable to Peterson, he was sprayed directly in the face with pepper spray for just a few seconds, and suffered some pain, discomfort, and peeling under his eyes for several days after the incident. He did not seek medical care and his injuries resolved themselves without medical intervention. We do not make light of the use of pepper spray nor ignore the discomfort and skin irritation Peterson endured; nonetheless, we have not held that the use of pepper spray necessarily causes more than de minimis injury."
     Chief Judge William Jay Riley and Judge Myron Bright concurred.