United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-3776
                         ___________________________

                               Robert Aaron Peterson

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

Officer Michael Kopp, in his individual and official capacities; Metropolitan Council

                      lllllllllllllllllllll Defendants - Appellees
                                       ____________

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

                          Submitted: November 21, 2013
                              Filed: June 11, 2014
                                 ____________

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


      1
       Kopp is a public transit officer for Metro Transit Police Department
(“MTPD”); MTPD is a subsidiary agency of the Metropolitan Council, a political
subdivision of the state of Minnesota. MTPD ensures the safety of the transit system.
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. Background2

       On April 25, 2011, at approximately 11:00 p.m., Peterson and his friend
Brianna Bloom 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


MTPD officers are licensed peace officers who are permitted to perform all functions
of peace officers authorized by law.
      2
       We recite the facts in the light most favorable to Peterson as the nonmoving
party. Atkinson v. City of Mountain View, 

, 1205 n.1 (8th Cir. 2013).
                                         -2-
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

                                         -3-
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, 

,
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, 

, 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.” 

(citing Harlow v. Fitzgerald, 

, 818 (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, 

, 232 (2009) (citing Saucier
v. Katz, 

, 201 (2001)).

                                            -4-
                     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, 

, 474
(8th Cir. 2010) (citing Atwater v. City of Lago Vista, 

, 354 (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., 

, 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, 

, 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.” 

(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, 

, 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, 

, 602 (Minn. Ct. App. 1967) (upholding trespass conviction when a police
officer told a man to leave, but the man “said nothing in reply,” and

                                          -5-
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 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 further contends that qualified immunity was inappropriate because
Peterson’s request for Kopp’s badge number is protected speech and “cannot be used

                                         -6-
as a basis for probable cause to arrest” Peterson. See City of Hous. v. Hill, 

, 461 (1987) (“[T]he First Amendment protects a significant amount of verbal
criticism and challenge directed at police officers.”). Kopp claims he arrested
Peterson for refusing to leave the bus stop, not for criticizing him or asking for his
badge number. Even if Kopp had an alternative motive for arresting Peterson, Kopp’s
“‘subjective reason for making the arrest need not be the criminal offense as to which
the known facts provide probable cause.’” Galarnyk v. Fraser, 

,
1075–76 (8th Cir. 2012) (quoting Devenpeck v. Alford, 

, 153 (2004)).
In other words, Kopp’s alleged motive for the arrest cannot vitiate an otherwise lawful
arrest. See Whren v. United States, 

, 813 (1996) (“Subjective intentions
play no role in ordinary, probable-cause Fourth Amendment analysis.”); see also
Foster v. Metro. Airports Comm’n, 

, 1080 (8th Cir. 1990) (finding
probable cause to arrest man for trespassing, despite officer also mistakenly thinking
he could arrest him for verbally abusing the officer, because the protected speech was
not the only basis justifying the arrest). As discussed above, it was objectively
reasonable for Kopp to believe Peterson was refusing to leave the bus stop, even
before he asked for Kopp’s badge number. Consequently, we find Kopp had arguable
probable cause to arrest Peterson and is entitled to qualified immunity from Peterson’s
unlawful arrest claim.

                     B. Fourth Amendment Excessive Force

       Peterson next argues that Kopp violated his Fourth Amendment right to be free
from unreasonable seizures by using excessive force when arresting him. 

(noting the Fourth Amendment framework is appropriately applied
to excessive force claims arising out of incidents occurring both before and shortly
after arrest). The Supreme Court has explained that “the right to make an arrest or
investigatory stop necessarily carries with it the right to use some degree of physical
coercion or threat thereof to effect it.” Graham v. Connor, 

, 396 (1989).
An officer’s use of force will violate the Fourth Amendment if it is not “objectively

                                         -7-
reasonable.” 

Because “police officers are often forced to make
split-second judgments—in circumstances that are tense, uncertain, and rapidly
evolving”—the reasonableness of a particular use of force “must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.” 

“Not every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment.”

(quotation omitted). We look to the specific circumstances, such as “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.” 

of these factors identified in Graham weigh against Kopp and in favor
of finding excessive use of force: Peterson was a non-fleeing, non-resisting,
non-violent misdemeanant. See Small v. McCrystal, 

, 1005 (8th Cir.
2013). Nevertheless, finding Kopp’s use of force unreasonable under the
circumstances does not end the inquiry. As mentioned above, to overcome qualified
immunity, Peterson must present sufficient facts to show not only (1) that the officer’s
conduct violated a constitutional right, but also (2) that the right was clearly
established at the time of the alleged violation. 

(citing

).

       For a right to be clearly established, “[t]he contours of the right must be
sufficiently clear that a reasonable official would understand that what he is doing
violates that right.” Anderson v. Creighton, 

, 640 (1987). Broadly
speaking, “[t]he right to be free from excessive force in the context of an arrest is
clearly established under the Fourth Amendment.” 

(citing
Henderson v. Munn, 

, 503 (8th Cir. 2006)). That said, “[w]hile there is
no requirement that ‘the very action in question has previously been held unlawful,’
[Peterson] can succeed only if earlier cases give [Kopp] fair warning that his alleged



                                           -8-
treatment of [Peterson] was unconstitutional.” Bishop v. Glazier, 

, 961
(8th Cir. 2013) (quoting Johnson v. Carroll, 

, 828 (8th Cir. 2011)).

       The defendants argue, and the district court held, that even if pepper spraying
Peterson was unreasonable under the circumstances, Kopp is entitled to qualified
immunity because Peterson only suffered “de minimis injury” as a result. We have
held that de minimis injury does not foreclose a claim of excessive force under the
Fourth Amendment. 

. Rather, “[t]he appropriate inquiry
is ‘whether the force used to effect a particular seizure is reasonable.’” 

490 U.S. at 396). However, until our June 2011 decision in Chambers, it was
“an open question in [the Eighth Circuit] whether an excessive force claim require[d]
some minimum level of injury.” 

. Because Peterson’s
arrest occurred two months before we decided Chambers, Kopp could have reasonably
believed his actions were constitutionally permissible as long as they did not cause
more than de minimis injury. In short, Kopp would be entitled to qualified immunity
if Peterson’s injuries were de minimis.

        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. 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. Compare Jones v. Shields, 

, 495 (8th Cir. 2000) (finding, in the Eighth Amendment context, pepper spray
injuries de minimis when the effects “cleared within 45 minutes” and “a medical
examination the day after the incident revealed no lingering effects”), with Lawrence

                                         -9-
v. Bowersox, 

, 731 (8th Cir. 2002) (finding, in the Eighth Amendment
context, pepper spray injuries more than de minimis when inmates were soaked in
pepper spray while in their cells and had effects lasting for almost two years after the
incident); cf. LaCross v. City of Duluth, 

, 1158 (8th Cir. 2013)
(declining to “categorize[] the Taser as an implement of force whose use establishes,
as a matter of law, more than de minimis injury,” despite its tendency to “cause
excruciating pain without lasting physical effects”). And here, Peterson has not
presented evidence that the pepper spray caused more than temporary pain and
discomfort; though a close case, we do not think this constitutes more than de minimis
injury. Compare Wertish v. Krueger, 

, 1066–67 (8th Cir. 2006)
(finding de minimis “bruised ribs, a sore shoulder, and multiple abrasions to [the
plaintiff’s] face and head” that took six weeks to heal), and Andrews v. Fuoss, 

, 815–18 (8th Cir. 2005) (finding de minimis a sheriff’s blow that made
plaintiff “see stars” and left her with a sore neck, arm, and shoulder as well as a
headache and increased post-traumatic stress symptoms), with 

–06 (finding more than de minimis “three lacerations . . . that covered [the
plaintiff’s] face with blood”), and Samuelson v. City of New Ulm, 

, 876
(8th Cir. 2006) (finding more than de minimis a shoulder injury requiring surgery and
physical therapy, with lingering pain over a year after the incident).

                         C. First Amendment Retaliation

       Lastly, Peterson contends that Kopp violated his First Amendment right to free
speech. In both his Amended Complaint and Motion Opposing Summary Judgment,
Peterson makes two distinct First Amendment retaliation claims: (1) Kopp arrested
him in retaliation for engaging in protected speech; and (2) Kopp pepper sprayed him
in retaliation for engaging in protected speech. The district court only addressed
Peterson’s retaliatory arrest claim, granting qualified immunity because Kopp had at
least arguable probable cause to arrest Peterson.



                                         -10-
       “[T]he law is settled that as a general matter the First Amendment prohibits
government officials from subjecting an individual to retaliatory actions . . . for
speaking out.” Hartman v. Moore, 

, 256 (2006). “To establish a First
Amendment retaliation claim under 42 U.S.C. § 1983, the plaintiff 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 in the activity, and
(3) the adverse action was motivated at least in part by the exercise of the protected
activity.” Revels v. Vincenz, 

, 876 (8th Cir. 2004) (citing Naucke v. City
of Park Hills, 

, 927–28 (8th Cir. 2002)). Under the third prong, a
plaintiff must show that the retaliatory motive was a “substantial factor” or “but-for
cause” of the adverse action. Baribeau v. City of Minneapolis, 

, 481 (8th
Cir. 2010). In other words, the plaintiff must show he was “singled out because of
[his] exercise of constitutional rights.” 

see also 

(“[W]hen nonretaliatory grounds are in fact insufficient to provoke the
adverse consequences, we have held that retaliation is subject to recovery as the
but-for cause of official action offending the Constitution.”).

       In retaliatory arrest cases, we have identified a fourth prong: lack of probable
cause or arguable probable cause. Galarnyk v. Fraser, 

, 1076 (8th Cir.
2012) (“‘Lack of probable cause is a necessary element of’ a First Amendment
retaliatory arrest claim.” (quoting McCabe v. Parker, 

, 1075 (8th Cir.
2010))); 

–79 (finding plaintiffs’ First Amendment claims
moot because secret service agent had arguable probable cause for their arrest); accord
 Redd v. City of Enterprise, 

, 1383 (11th Cir. 1998).

       We agree that Kopp is entitled to qualified immunity on Peterson’s retaliatory
arrest claim because, as detailed above, Kopp had at least arguable probable cause for
the arrest. However, Peterson also claims that Kopp pepper sprayed him in retaliation
for criticizing Kopp and asking for his badge number. The defendants do not deny
that criticizing a police officer and asking for his badge number is protected speech

                                         -11-
under the First Amendment. Nor could they. “[C]riticism of public officials lies at
the very core of speech protected by the First Amendment.” 

.
They also do not deny that pepper spraying someone in the face “would chill a person
of ordinary firmness.” 

. Indeed, “‘[t]he effect on freedom of
speech may be small, but since there is no justification for harassing people for
exercising their constitutional rights it need not be great in order to be actionable.’”
Garcia v. City of Trenton, 

, 729 (8th Cir. 2003) (quoting Bart v. Telford,

, 625 (7th Cir. 1982) (holding that receiving several parking tickets
totaling just $35.00 would chill a person of ordinary firmness)).

        The defendants argue instead that there is no evidence upon which a reasonable
jury could conclude that Kopp pepper sprayed Peterson—even in part—because of his
protected speech. 

. “The causal connection is generally a jury
question . . . [unless] the question is so free from doubt as to justify taking it from the
jury.” 

The defendants claim causation is “free from doubt”
in this case because there is only one reasonable conclusion from the record before us:
Kopp pepper sprayed Peterson as a reasonable reaction to an escalating situation. We
disagree. Taking the evidence in the light most favorable to Peterson, as we must for
this summary judgment analysis, Peterson has presented affirmative evidence that
Kopp pepper sprayed him in retaliation for criticizing him and asking for his badge
number.

      Moments before Kopp used the pepper spray, Peterson had asked for Kopp’s
badge number. “Temporal proximity is relevant but not dispositive.” Wilson v.
Northcutt, 

, 592 (8th Cir. 2006); Kilpatrick v. King, 

, 768
(8th Cir. 2007) (finding that timing “weighs against an inference of retaliatory intent”
when nine months separated the protected speech and adverse action). Here, Peterson
went beyond the timing of events, explaining that Kopp engaged in a conversation
with him about his badge number. Kopp refused to give Peterson his badge number,
responding, “[y]ou have no right to have my badge number.” Kopp also

                                           -12-
acknowledged during his deposition that he is reluctant to state his name and badge
number due to the similarity between his last name and the shorthand, “cop,” for
police officer. As he put it, “all it does is aggravate [people] and make them even
madder” because they believe he is lying.

       The defendants justify the use of pepper spray by arguing that “Peterson’s
defiance inspired the other young men present to surround Kopp.” 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.

                                   III. Conclusion

      For these reasons, we affirm the district court’s grant of summary judgment for
Peterson’s Fourth Amendment claims and his retaliatory arrest claim, reverse the grant
of summary judgment for Peterson’s First Amendment retaliatory use of force claim,
and remand for further proceedings consistent with this opinion. As there remains a
federal claim, we also vacate the dismissal of Peterson’s state law claims



                                         -13-
and remand to the district court to once again decide whether to exercise supplemental
jurisdiction over the state law claims. 28 U.S.C. § 1367(a) & (c).
                         ______________________________




                                        -14-