Submitted: January 12, 2017
from United States District Court for the Eastern District of
Missouri - St. Louis
WOLLMAN, MURPHY, and MELLOY, Circuit Judges.
MELLOY, Circuit Judge.
Johnson sued Officer Darren Wilson, Police Chief Thomas
Jackson, and the City of Ferguson, Missouri, for
constitutional violations resulting from an encounter between
Officer Wilson and Johnson. The district court denied
Defendants' motion to dismiss based on qualified
immunity. Defendants appeal, and we affirm.
this matter comes before us as an appeal from the denial of a
motion to dismiss, we set forth the facts as alleged in the
complaint. Hager v. Ark. Dep't of Health, 735
F.3d 1009, 1013 (8th Cir. 2013). On August 9, 2014, Johnson
and Michael Brown, Jr., were walking down Canfield Drive in
Ferguson, Missouri. Officer Wilson approached both men in his
police car and told them to "Get the f*ck on the
sidewalk." Officer Wilson drove past the two men and
then reversed his car, parking so as to block Johnson and
Brown's path. Officer Wilson opened his door, striking
Brown, and then grabbed Brown and threatened to shoot his
gun. While Brown struggled to break free, Officer Wilson
discharged his gun twice, striking Brown in the arm. At all
times during this encounter, Johnson was standing next to
Officer Wilson shot Brown in the arm, Brown and Johnson ran
away from Officer Wilson. Officer Wilson did not order Brown
and Johnson to "stop" or "freeze."
Rather, Officer Wilson fired his service weapon at the two
men, striking Brown several times and killing him.
filed this cause of action pursuant to 42 U.S.C. § 1983,
naming Officer Wilson, the City of Ferguson, and Chief
Jackson as defendants. Johnson alleges that Officer
Wilson's actions constituted an unlawful seizure and use
of excessive force, in violation of his rights under the
Fourth and Fourteenth Amendments. Further, Johnson alleges
that the City of Ferguson and Chief Jackson engaged in
policies that resulted in the violation of Johnson's
civil rights, including failure to train and supervise
officers and condoning unconstitutional law-enforcement
practices. Johnson also brought claims under Missouri state
law for assault, intentional infliction of emotional
distress, and, in the alternative, negligent infliction of
moved to dismiss Johnson's complaint for failure to state
a claim. Officer Wilson and Chief Jackson claim they are
entitled to qualified immunity. The City of Ferguson claims
it cannot be liable because Johnson failed to show that a
constitutional violation occurred. The district court denied
qualified immunity to Officer Wilson and Chief Jackson. The
district court also denied the motion to dismiss the claims
against the City of Ferguson. Defendants appeal.
district court's denial of a claim of qualified immunity,
to the extent that it turns on an issue of law, is an
appealable 'final decision' within the meaning of 28
U.S.C. § 1291 notwithstanding the absence of a final
judgment." Mitchell v. Forsyth, 472 U.S. 511,
530 (1985). Defendants challenge the sufficiency of
Johnson's pleadings to state a claim pursuant to §
1983. This is an issue of law over which we have
jurisdiction. See Hager, 735 F.3d at 1013.
review the denial of a motion to dismiss on the basis of
qualified immunity de novo. Id. A complaint must
plead "enough facts to state a claim to relief that is
plausible on its face." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). "Courts must
accept a plaintiff's factual allegations as true but need
not accept a plaintiff's legal conclusions."
Retro Television Network, Inc. v. Luken Commc'ns,
LLC, 696 F.3d 766, 768-69 (8th Cir. 2012).
"[D]efendants seeking dismissal under Rule 12(b)(6)
based on an assertion of qualified immunity 'must show
that they are entitled to qualified immunity on the face of
the complaint.'" Carter v. Huterson, 831
F.3d 1104, 1107 (8th Cir. 2016) (quoting Bradford v.
Huckabee, 394 F.3d 1012, 1015 (8th Cir. 2005)).
immunity shields officers from liability when "their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). "The determination of whether an officer is
entitled to qualified immunity requires consideration of the
'objective legal reasonableness' of the officer's
conduct in light of the information he possessed at the time
of the alleged violation." Winters v. Adams,
254 F.3d 758, 766 (8th Cir. 2001) (quoting Harlow,
457 U.S. at 819). "Qualified immunity involves the
following two-step inquiry: (1) whether the facts shown by
the plaintiff make out a violation of a constitutional or
statutory right, and (2) whether that right was clearly
established at the time of the defendant's alleged
misconduct." Mitchell v. Shearrer, 729 F.3d
1070, 1074 (8th Cir. 2013); see Pearson v. Callahan,
555 U.S. 223, 236 (2009) (holding that courts have discretion
to determine which prong to address first).
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. Conversely, if there was a seizure, the
Defendants make little argument that the force used was not
unreasonable. Thus, we turn to that issue first.
§ 1983 claim against Officer Wilson alleges that Johnson
was unlawfully detained and subjected to excessive force in
violation of the Fourth and Fourteenth Amendments. The Fourth
Amendment prohibits unreasonable seizures of persons. U.S.
Const. amend. IV. Whether a person has been seized turns on
whether, "in view of the totality of circumstances
surrounding the incident, a reasonable person would have
believed he was free to leave." United States v.
Johnson, 326 F.3d 1018, 1021 (8th Cir. 2003). Courts
consider "the presence of several officers, a display of
a weapon by an officer, physical touching of the person, or
the 'use of language or tone of voice indicating that
compliance with the officer's request might be
compelled.'" United States v.
Flores-Sandoval, 474 F.3d 1142, 1145 (8th Cir. 2007)
(quoting United States v. Hathcock, 103 F.3d 715,
718-19 (8th Cir. 1997)). Further, "[a] ...