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Federal appeals court weighs future of lawsuit over Michael Brown’s death

Setting sun highlights the Eagleton Federal courthouse.
File photo | Rachel Heidenry
All 11 judges of the federal Eighth Circuit Court of Appeals are deciding whether Dorian Johnson's lawsuit against the city of Ferguson can go forward.

A federal appeals court is considering whether Dorian Johnson, the man who was with Michael Brown during the now-infamous 2014 confrontation with former Ferguson police officer Darren Wilson, can sue Wilson and the city for violating his civil rights.

All 11 judges of the Eighth Circuit Court of Appeals heard oral arguments in the case Wednesday morning. In a 2-1 decision issued in June, a panel of the same court ruled that Wilson, former chief Tom Jackson and the city could be sued. Now the full panel is being asked to make a decision.

The judges are wrestling with one important question — did the encounter rise to the level of a seizure under the Fourth Amendment to the U.S. Constitution (which guards against unreasonable searches and seizures)? If it did, the case will go to trial and Johnson can argue that the stop was unreasonable and that Wilson used excessive force when he shot at Johnson and Brown. If not, the case should be dismissed.

In a March 2016 opinion, U.S. District Judge Audrey Fleissig wrote that it was a “close question” whether Johnson had been seized, and that the timeline was critical. Depending on the sequence of events, she wrote, “the Court cannot say that as a matter of law, the Plaintiff was not seized,” and refused to dismiss the case. The panel upheld her decision in June.

Johnson, then 22, and Brown, who was 18, were walking on Canfield Drive on Aug. 9, 2014, when Wilson spotted the two, and ordered them to get on the sidewalk. The two refused, and Wilson backed his car up, close enough to almost run into the men, according to Johnson’s attorneys. The two stopped walking. Johnson, though later fled while Brown struggled with Wilson.

That brief moment when Johnson stopped walking isn’t actually a “stop” under the definition courts have developed, argued Robert Plunkert, an attorney for the city of Ferguson.

“The only order was to get to the sidewalk,” Plunkert said. “He was never told to stop, and the order given wasn’t obeyed.”

James Williams, a Louisiana-based attorney for Johnson, urged the judges to look at the entire situation from start to finish to determine if Johnson was, in fact, seized.

“First they stopped walking, then the car backs up and nearly strikes them, then there’s a struggle, then there are shots fired and then Dorian Johnson leaves,” Williams said.

The case attracted the attention of the National Police Association, which filed a brief supporting Ferguson’s position.

“The Fourth Amendment issues and consequences to individual law enforcement officers in this case are of the utmost importance —  importance not only to those who dedicate their careers and place their lives in harm’s way to protect their fellow citizens but to those citizens and their communities,” the association wrote in a statement in December.

The judges will rule at a later date.

Follow Rachel on Twitter: @rlippmann

Rachel is the justice correspondent at St. Louis Public Radio.

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