No. 16-1908 ___________________________

Ricky Barnard Tatum

lllllllllllllllllllll Plaintiff - Appellee

v.

Willie Robinson, Sr. Captain, Arkansas State Police

lllllllllllllllllllll Defendant - Appellant

Bobby Norman, Director, Law Enforcement Standards, AR State Police; John Does, Dillards Store Manager, Dillards CEO; Corizon

lllllllllllllllllllll Defendants ____________

Appeal from United States District Court for the Eastern District of Arkansas - Little Rock ____________

Submitted: January 12, 2017 Filed: May 30, 2017 ____________ Before LOKEN, BEAM, and BENTON, Circuit Judges. ____________ BENTON, Circuit Judge. This is a qualified immunity appeal. Willie Robinson, a senior corporal in the Arkansas State Police, arrested Ricky B. Tatum. Tatum sued Robinson, claiming he used excessive force by pepper spraying and choking him. The district court denied Robinson qualified immunity. Robinson appeals. Having jurisdiction under 28 U.S.C. § 1291, see Mitchell v. Forsyth, 472U.S.511, 530 (1985), this court affirms in part, reverses in part, and remands.

I.

On April 29, 2014, a security camera operator at a Dillard’s department store in Little Rock saw Tatum grab eight pairs of shorts from a display and walk toward nearby exit doors. The camera operator remotely locked the doors. Tatum tried to exit without paying. Finding the doors locked, he put down the shorts, walked around the store, told Dillard’s staff the doors were locked, and returned to the area near the display. The camera operator alerted an assistant store manager and mall security. She also contacted Robinson, who was working off-duty as a security officer, and told him about Tatum’s actions. Another mall security officer and at least two Dillard’s employees waited near Tatum for Robinson to arrive.

Robinson, in plain clothes, walked up to the smaller Tatum. He said he was a law enforcement officer. He told Tatum he was under arrest and to put his hands on a clothes rack. Tatum argued with Robinson and did not comply. According to the other security officer at the scene, Robinson told Tatum that he would pepper spray him if he did not calm down.

About 14 seconds after walking up to Tatum, Robinson pepper sprayed his face for one second. The two then crashed into a display table. Tatum says he did not fight or resist. Robinson, however, says Tatum “began wrestling and fighting with him into a table.” They struggled, and Robinson’s hands got injured. With the other security officer’s assistance, Robinson handcuffed Tatum. Tatum says Robinson was

-2- choking him to the point he could not breathe. Robinson then walked Tatum to the store’s security room with his arm around Tatum’s neck. Tatum says he was choked the entire way. Robinson says he did not choke Tatum and Tatum was resisting. Once in the security room, Tatum says, Robinson repeatedly stomped, kicked, and slammed him, and called him “n****r mothafucker.” Robinson denies all this, saying that, because Tatum kept getting up from his seat, he pushed Tatum back into his seat several times and then kicked his feet out from under him.

Video from Dillard’s security cameras shows some of Tatum’s acts before Robinson approached him, and some of their interactions before entering the security room. There is no audio. No video or audio was recorded inside the security room.

Tatum later pled guilty to felony robbery and misdemeanor resisting arrest and theft of property.

Tatum