(CN) -An Alabama police officer used excessive force when he shot a woman in the face with pepper spray for playing loud music in a Wal-Mart parking lot, the 11th Circuit ruled.
The Atlanta-based appellate panel reinstated Joi Brown’s state and federal excessive force claims against Lt. Gerald Norris.
Norris was one of several police officers conducting an undercover drug operation in the parking lot of a Huntsville Wal-Mart in June 2005, when Brown drove into the lot playing what she admitted was “loud” music.
Brown stopped her car to talk to an acquaintance, rolling down the driver’s side window at least halfway while the music was blaring.
Norris said he told Brown three times to turn her music down and, when she refused, he asked her to step out of the car. Brown claimed she was unable to get out of the car right away because the engine was off, and the automatic locks did not work. She said she eventually got the doors unlocked and started to get out of the car when Norris threw her to the pavement and sprayed her in the eyes, mouth and face with pepper spray.
Norris said he thought Brown was trying to run.
Brown and co-defendant Shaun Sonia, who tried to record the incident on his cell phone, were arrested and charged with disorderly conduct. Brown was also charged with resisting arrest, but the charge was later dropped, as was Sonia’s charge. Brown was found not guilty for disorderly conduct.
Brown and Sonia filed state and federal false arrest, excessive force and assault and battery claims against Norris and another officer.
The district court ruled for the defendants, saying the officers were entitled to qualified immunity on all claims. Brown and Sonia appealed, and the three-judge panel upheld dismissal of all claims but the excessive force claim against Norris.
The use of pepper spray for minor infractions and against non-violent offenders “clearly exceed[s] the Fourth Amendment’s excessiveness threshold,” Judge Frank Hull wrote.
“An objectively reasonable police officer would have known it was unlawful to use pepper spray and other force against an arrestee who was suspected only of a minor offense (playing music too loud), was not threatening the officer or the public, was not attempting to flee, and who had communicated her willingness to be arrested,” Hull wrote.
“Although the law permits some use of force in any arrest for even minor offenses, the law was clearly established in 2005 that defendant Norris’s combined gratuitous use of pepper spray and other force against Brown in this minor offense context violated the Constitution.”
The court revived the excessive force claim against Norris and remanded.