Submitted: January 10, 2018
from United States District Court for the Eastern District of
Missouri - St. Louis
SMITH, Chief Judge, WOLLMAN, LOKEN, MURPHY,  MELLOY,
COLLOTON, GRUENDER, BENTON, SHEPHERD, KELLY, and ERICKSON,
Circuit Judges, En Banc. 
WOLLMAN, CIRCUIT JUDGE.
Johnson v. City of Ferguson, 864 F.3d 866 (8th Cir.
2017), a panel of our court affirmed the district court's
ruling that Dorian Johnson had alleged sufficient facts to
state 42 U.S.C. § 1983 claims of unlawful seizure and
the use of excessive force against former Ferguson Police
Officer Darren Wilson, as well as a claim of supervisory
liability against former Ferguson Police Chief Thomas
Jackson, and thus denied the defendants' motion for
dismissal based upon qualified immunity. We granted their
petition for rehearing en banc and vacated the panel's
opinion. We now reverse the district court's order and
remand with directions to dismiss the federal claims.
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.
agree with the panel opinion's identification of the
governing issue in this case: "The crux of the motion to
dismiss and this resulting appeal centers on the issue of
whether there was a seizure. Johnson concedes that if there
was no seizure virtually all of his claims fall away."
Johnson, 864 F.3d at 872. We disagree with the
panel's ruling that a seizure occurred, and thus we hold
that the district court erred in not granting the
defendants' motion to dismiss based upon their claim of
one might say about Wilson's expletive-expressed
directive that Brown and Johnson move from the street to the
sidewalk, Johnson's complaint concedes that neither he
nor Brown was ordered to stop and to remain in place.
Johnson's decision to remain by Brown's side during
Brown's altercation with Wilson rather than complying
with Wilson's lawful command to return to the sidewalk
was that of his own choosing. That he was able to leave the
scene following the discharge of Wilson's weapon gives
the lie to his argument that the placement of Wilson's
vehicle prevented him from doing so. As was the case in
United States v. Hayden, 759 F.3d 842, 847 (8th Cir.
2014), Wilson's police vehicle constituted no barrier to
Johnson's ability to cross to the sidewalk. Any physical
or weapon-related contact by Wilson was directed towards
Brown alone in the first instance. In a word, then, because
Johnson himself was neither physically restrained nor
prevented from proceeding to the sidewalk in compliance with
Wilson's directive rather than fleeing as he did, the
question before us is alike to that presented in
California v. Hodari D., 499 U.S. 621, 626 (1991):
The narrow question before us is whether, 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.
what 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, in the absence of any
intentional acquisition of physical control terminating
Johnson's freedom of movement through means intentionally
applied, as occurred in both Brower v. County of
Inyo, 489 U.S. 593, 596-99 (1989), and in Tennessee
v. Garner, 471 U.S. 1, 4, 7 (1985), we conclude that no
seizure occurred in this case. See also United States v.
Stover, 808 F.3d 991, 995 (4th Cir. 2015); United
States v. Salazar, 609 F.3d 1059, 1065-66 (10th Cir.
2010); United States v. Waterman, 569 F.3d 144,
145-46 (3rd Cir. 2009); United States v. Baldwin,
496 F.3d 215, 218-19 (2nd Cir. 2007); United States v.
Letsinger, 93 F.3d 140, 143-45 (4th Cir. 1996);
United States v. Hernandez, 27 F.3d 1403, 1406-07
(9th Cir. 1994); United States v. Washington, 12
F.3d 1128, 1132 (D.C. Cir. 1994).
then to the claim of supervisory liability against Police
Chief Jackson. In addressing this issue, the panel opinion
recognized that "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
Moore failed to establish Officer Malady violated Moore's
constitutional rights, Moore cannot maintain this action
against either Chief Bullock or the city." Id.
(internal citation omitted). In light of our holding that no
seizure and thus no constitutional violation occurred in this
case, Johnson's claim of supervisory liability against
Chief Jackson necessarily fails, as perforce does any claim
of municipal liability against the City of Ferguson.
Accord Mahn v. Jefferson Cty., 891 F.3d 1093,
1099-1100 (8th Cir. 2018).
district court's order is reversed and the case is
remanded with directions to dismiss the federal claims.
MELLOY, Circuit Judge, with whom SMITH, Chief Judge, KELLY
and ERICKSON, ...