United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-1148
                        ___________________________

                                   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.
                                    ____________

                    Appeal from United States District Court
                   for the District of Minnesota - Minneapolis
                                  ____________

                          Submitted: February 13, 2019
                            Filed: November 1, 2019
                                 ____________

Before LOKEN, COLLOTON, and KELLY, Circuit Judges.
                          ____________
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 his rights.
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
arises from the 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
was singling him out when others were also waiting for their cars. McCarver’s fellow



                                          -2-
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
his identification. 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.




                                          -3-
      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, 

, 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, 

, 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, 

, 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, 

, 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, 

, 589 (2018)
(quoting Ashcroft v. al-Kidd, 

, 741 (2011)).




                                           -4-
                                          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 is supported
by probable cause that the arrestee committed a misdemeanor offense in the presence
of an arresting officer. See Nieves v. Bartlett, 

, 1723-24 (2019);
Atwater v. City of Lago Vista, 

, 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, 

, 741 (8th Cir. 2019); Walker v. City of Pine Bluff, 

, 992 (8th Cir. 2005). Arguable probable cause exists if 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, 

, 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, 

, at *2 (Minn. Ct. App. Dec. 28, 2015);
see State v. Quinnell, 

, 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. 

.



                                          -5-
       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 admits that 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 

-03; State v. Bragg, No.
A17-0287, 

, 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




                                          -6-
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’ claim that 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, 

, 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 minutes later 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, 

, 917
(2017). (On this issue, Manuel abrogated Moran v. Clarke, 

, 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, 

, 735 (8th Cir. 2012). The jury acquitted
Johnson, and he suffered no deprivation of liberty after the trial. Accordingly, there



                                         -7-
is insufficient evidence to support a finding that the officers violated Johnson’s rights
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
violates the Fourth Amendment if it is objectively unreasonable. Graham v. Connor,

, 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.” 

       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’s instructions to 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



                                          -8-
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, 

, 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.



                                         -9-
       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, 

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




                                         -10-
                                           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, 

, 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, 

,
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. 

.

       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,




                                         -11-
“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 from Johnson, 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. As Johnson 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 

. McCarver then pushed Johnson as he was backing up toward the exit.
Viewing the facts in the light most favorable to Johnson, he was not refusing to leave


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

                                          -12-
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, 

, 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 this Court 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, 

, 360 (3d Cir. 2017); Turner v. Lieutenant Driver,

, 690 (5th Cir. 2017); ACLU of Ill. v. Alvarez, 

, 595 (7th
Cir. 2012); Glik v. Cunniffe, 

, 82 (1st Cir. 2011); Smith v. City of
Cumming, 

, 1333 (11th Cir. 2000); Fordyce v. City of Seattle, 

, 439 (9th Cir. 1995).




                                         -13-
       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, 

, 2044 (2015); Ashcroft v. al-Kidd, 

, 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 

; 

; 

; 

. This “robust consensus,” together with our
general pronouncement that a citizen’s “right to exercise First Amendment freedoms
without facing retaliation from government officials is clearly established,” Baribeau
v. City of Minneapolis, 

, 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 

. 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, 

, 547 (8th Cir. 2017).
Reasonableness depends on the circumstances surrounding 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.” 

v. Connor, 

,
396 (1989)).




                                         -14-
       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 his face, which we have characterized as “significant force.”
See 

see also Brown v. City of Golden Valley, 

, 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 

; Peterson v. Kopp, 

, 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 

. Indeed, Eric French, Seven’s manager on duty,
testified that Johnson remained “pretty calm” through the whole ordeal. This further
undermines the reasonableness of the officers’ conduct. See 

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 was resisting
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 

facts in the light most favorable to
Johnson, the three Graham factors provide no justification for pushing and pepper-
spraying him and, as a result, the officers’ use of force was objectively unreasonable.
See id.; 

.

      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



                                         -15-
was objectively unreasonable for the police to use pepper spray on a non-fleeing, non-
violent 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 

, 600. Because these facts are sufficiently similar to this case,
McCarver and LaLuzerne had “fair warning” that their actions were unconstitutional.
See 

see also Henderson v. Munn, 

, 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 

.
                        ______________________________




                                        -16-