||EIGHTH CIRCUIT HOLDS COMPANION OF MICHAEL BROWN WAS NOT SEIZED UNDER THE FOURTH AMENDMENT

EIGHTH CIRCUIT HOLDS COMPANION OF MICHAEL BROWN WAS NOT SEIZED UNDER THE FOURTH AMENDMENT

On June 17, 2019, the Eighth Circuit Court of Appeals decided Johnson v. City of Ferguson[i], in which the court examined whether Dorian Johnson, the companion of Michael Brown, was seized during the nationally known shooting incident involving Brown.

The facts of the case, as stated below, are the facts as alleged by the Johnson, the plaintiff in this case.  At this stage of the litigation, the motions for summary judgment and qualified immunity, the court is generally required to accept the plaintiff’s version of events.  As such, the facts, as stated by the plaintiff, are as follows:

As alleged in Johnson’s complaint, he and Michael Brown, Jr. were “peacefully and lawfully” walking down Canfield Drive in Ferguson, Missouri, at approximately 12:00 p.m. on August 9, 2014, when they were approached by Officer Darren Wilson in his marked police vehicle. As he approached the pair, Wilson slowed his vehicle and ordered them to “Get the f*ck on the sidewalk.” Wilson continued to drive his vehicle several more yards, then abruptly put the vehicle in reverse and parked it at an angle so as to block the pair’s path. After stopping his vehicle just inches from Brown, Wilson forcefully opened his door, striking Brown. Wilson reached through his window, grabbed Brown, and threatened to shoot his weapon. As Brown struggled to break free, Wilson discharged his weapon twice, striking Brown in the arm. Both Brown and Johnson ran away from Wilson, who at no time ordered either of them to “stop” or “freeze,” but rather fired his weapon at the two men, with several of the shots striking and killing Brown.[ii]

Johnson filed suit in federal district court and alleged that his rights under the Fourth Amendment were violated, making claims of unlawful seizure and excessive force against the officer, and against the police chief for supervisory liability.  The officer and chief filed motions for qualified immunity, and the district court denied the motions.  The officer and chief appealed the denial of qualified immunity to the Eighth Circuit Court of Appeals.  A panel of the Eighth Circuit affirmed the denial of qualified immunity.  The officer and chief filed a petition for rehearing en banc, and the case subsequently went before the eleven judges on the Eighth Circuit Court of Appeals.

The Eighth Circuit identified the main issue in the case as follows:  Whether Johnson was seized under the Fourth Amendment during the encounter between Johnson, Brown and the officer?  If there was no seizure of Johnson under the Fourth Amendment, there was no Fourth Amendment violation, and the officer and the chief are entitled to qualified immunity.

There are two types of seizures of persons under the Fourth Amendment.  The first type of seizure occurs when a person submits to an officer’s show of authority.  For example, an officer orders a person to stop, and the person stops.  The second type of seizure occurs when an officer intentionally uses force on a person, which causes the person to stop or be restrained.   The court noted that Johnson was not physically seized during the encounter with the officer, therefore, they refined the issue such that it pertained to the first type of seizure, the “show of authority.”  The Eighth Circuit then stated the issue was

[W]hether, with respect to a show of authority, as with respect to application of physical force, a seizure occurs even though the subject does not yield.  We hold that it does not.[iii]

The court then examined the facts of Johnson’s case.  The court first noted that as the officer first slowly passed by Johnson and Brown, according the plaintiffs version of the facts, the officer told them to “Get the f**k on the sidewalk.”  The officer did not tell them to stop.  The court noted that Johnson did not get on the sidewalk, but rather remained with Brown in the road.  The plaintiff also alleged that the officer then backed up in his patrol car and stopped diagonally, “inches” away from Brown.  Again, the court noted that Johnson chose to remain with Brown, rather than go to the sidewalk as instructed or leave the area.  Johnson also alleged that he was blocked by the officer’s car; however, the court noted that when the officer began firing his weapon, Johnson fled with Brown, which demonstrated that the car did not actually block his freedom of movement.  Additionally, the court noted that when the officer initially engaged with Brown, and initially fired his weapon at Brown, any force used was directed at Brown, not at Johnson.

The court then stated

[W]hat the Court wrote in Brendlin v. California, 551 U.S. 249, 254 (2007), is equally applicable in this case: “[T]here is no seizure without actual submission.” Because there was no verbal or physical impediment to Johnson’s freedom of movement, there was no submission to authority on his part even in a metaphysical sense of the meaning of that word. Accordingly, … , we conclude that no seizure occurred in this case.[iv]

Thus, the court held that there was no submission to authority seizure in this case, just as Johnson was also not physically seized through a means intentionally applied.  As such, Johnson was not seized under the Fourth Amendment; therefore, his Fourth Amendment claims fail and the officer is entitled to qualified immunity.

The court also examined whether the chief was liable under a supervisory liability claim.

The court first noted the legal principles applicable to this claim and stated

Section 1983 liability cannot attach to a supervisor merely because a subordinate violated someone’s constitutional rights.” Johnson, 864 F.3d at 877 (quoting Otey v. Marshall, 121 F.3d 1150, 1155 (8th Cir. 1997)). As we held in Moore v. City of Desloge, 647 F.3d 841, 849 (8th Cir. 2011), “This circuit has consistently recognized a general rule that, in order for municipal liability to attach, individual liability first must be found on an underlying substantive claim.” (quoting McCoy v. City of Monticello, 411 F.3d 920, 922 (8th Cir. 2005)). Further, “to maintain an action for training or supervisory liability, a plaintiff must show the failure to train or supervise caused the injury.[v]

In other words, for the chief to be subjected to supervisory liability, the plaintiff must prove (1) an underlying constitutional violation, and (2) the failure to supervise caused violation.  The court then held that the claim against the chief and the City of Ferguson must fail because Johnson failed to an underlying constitutional violation.  In other words, because the officer did not violate Johnson’s rights under the Fourth Amendment, the chief cannot be liable for any such alleged violation, nor can the City.

Thus, in a 7-4 ruling, the Eighth Circuit reversed the district courts order and remanded the case with directions to dismiss the constitutional claims.

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Citations

[i] No. 16-1697 (8th Cir. Decided June 17, 2019)

[ii] Id. at 2-3

[iii] Id. at 4

[iv] Id. (emphasis added)

[v] Id. (emphasis added)

By |2020-02-11T21:14:19+00:00February 11th, 2020|Legal updates|

About the Author:

Brian Batterton is an attorney in the State of Georgia and currently a Lieutenant with the Cobb County Police Department. He has been in law enforcement since 1994 and obtained his Juris Doctorate in 1999 from John Marshall Law School in Atlanta. He has served as an officer in Uniform Patrol, a detective in Criminal Investigations, a Corporal in the Training Unit and as a Sergeant in Uniform Patrol. Brian is currently assigned as the Legal Officer to the Chief of Police. In addition to his work at the police department, he also lectures for the Legal and Liability Risk Management Institute (LLRMI) on both criminal law and procedure topics, as well as, police civil liability.