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Johnson v. City of Ferguson

United States Court of Appeals, Eighth Circuit

June 17, 2019

Dorian Johnson Plaintiff - Appellee
v.
City of Ferguson, Missouri; Thomas Jackson; Darren Wilson Defendants - Appellants National Police Association Amicus on Behalf of Appellant(s)

          Submitted: January 10, 2018

          Appeal from United States District Court for the Eastern District of Missouri - St. Louis

          Before SMITH, Chief Judge, WOLLMAN, LOKEN, MURPHY, [1] MELLOY, COLLOTON, GRUENDER, BENTON, SHEPHERD, KELLY, and ERICKSON, Circuit Judges, En Banc. [2]

          WOLLMAN, CIRCUIT JUDGE.

         In 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.

         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.

         We 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 qualified immunity.

         Whatever 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.

         Likewise, 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).

         We turn 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 the injury.

         Because 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).

         The 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, ...


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