Dorian Johnson v. City of Ferguson, 926 F.3d 504

On Aug. 9, 2014, Dorian Johnson and Michael Brown were walking when Ferguson Police Officer Darren Wilson in a marked car ordered them to "get . . . on the sidewalk," then reversed and parked at an angle near them.
Wilson opened his door, struck Brown, reached through his window, grabbed Brown, threatened to shoot, and fired twice, wounding Brown; Brown and Johnson ran and Wilson fired more shots, killing Brown.
Johnson sued under 42 U.S.C. § 1983 for unlawful seizure and excessive force against Wilson and for supervisory liability against Chief Thomas Jackson; defendants moved to dismiss on qualified immunity grounds.
A panel of the Eighth Circuit previously affirmed denial of dismissal; the court granted rehearing en banc, vacated the panel opinion, and heard the case en banc.
The en banc majority held that Johnson was not "seized" under the Fourth Amendment because he was not physically restrained and did not submit to a show of authority, and therefore reversed the district court and ordered dismissal of the federal claims.
A dissenting opinion argued the complaint, taken as true, alleged a show of authority (vehicle roadblock, command, threat, use of force) and submission, so the seizure and excessive-force claims should survive dismissal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Johnson was "seized" under the Fourth Amendment	Johnson says Wilson's command, vehicle blocking, close stop, physical contact with Brown, threats, and shooting constituted a show of authority that Johnson submitted to	Wilson says there was no show of authority directed at Johnson and Johnson did not submit; he could have complied by moving to the sidewalk	Majority: No seizure — Johnson was neither physically restrained nor did he submit; dismissal required
Whether use of force violated the Fourth Amendment (excessive/deadly force)	If seized, the force was unreasonable and excessive	Defendants did not meaningfully argue reasonableness on appeal	Majority: Not reached on merits because no seizure; dissent would have allowed claim to proceed
Supervisory/municipal liability under § 1983 against Chief Jackson / City of Ferguson	Johnson alleges supervisory liability based on subordinate's constitutional violation	Defendants argue supervisory liability cannot stand absent underlying constitutional violation	Held: Supervisory and municipal claims fail because majority finds no underlying constitutional violation
Qualified immunity at motion-to-dismiss stage	Johnson contends factual allegations suffice to overcome qualified immunity	Defendants contend alleged facts do not show a constitutional violation, so immunity applies	Held: Qualified immunity appropriate because no seizure alleged; federal claims dismissed

California v. Hodari D., 499 U.S. 621 (1991) (no seizure from a show of authority when subject does not yield)
Brendlin v. California, 551 U.S. 249 (2007) (seizure requires actual submission to a show of authority)
Brower v. County of Inyo, 489 U.S. 593 (1989) (seizure can occur by means intentionally applied, e.g., roadblock)
Tennessee v. Garner, 471 U.S. 1 (1985) (constitutional limits on deadly force in seizures)
Florida v. Bostick, 501 U.S. 429 (1991) (objective test whether officer's conduct would convey that a reasonable person is not free to ignore police and leave)
United States v. Hayden, 759 F.3d 842 (8th Cir. 2014) (parking a police vehicle alongside a person and shouting did not constitute a seizure)
Moore v. City of Desloge, 647 F.3d 841 (8th Cir. 2011) (municipal/supervisory liability requires an underlying constitutional violation)