Imagine the following series of events happening to you:

You and a friend are walking peacefully down a residential street in the middle of the day, when a police car pulls next to you and orders you to “get the fuck on the sidewalk.” After you walk a few steps more, the cop suddenly puts his car into reverse and maneuvers it in front of you to block your path — stopping the car just inches from your friend.

The cop then opens the car door and slams it into your friend. He grabs your friend and threatens to shoot him. As your friend struggles to free himself, the cop shoots twice, hitting him once in the arm. Fearing for your life, you flee, as the cop continues to fire his gun at you.

You live. Your friend dies.

Now, ask yourself this: as this series of events played out, would you believe throughout the entire experience that the cop was merely instructing you to move to the sidewalk, or would there come a point where you felt that the cop expected you to stay put? If you paused, as the cop blocked your path and assaulted your friend, did you do so because you were calmly deciding where else to go — or did you freeze because you believed that the cop was demanding your submission?


The answers to these questions seem obvious, but they weren’t to six federal appellate judges, who held on Monday that a lawsuit against the cop in question must be dismissed at one of the earliest possible stages of litigation. The case is Johnson v. City of Ferguson.

Yup. That Ferguson.

The facts laid out above are plaintiff Dorian Johnson’s version of what happened during the fateful encounter with Officer Darren Wilson which led to the death of Johnson’s friend Michael Brown. These facts are highly contested. The United States Justice Department disagrees with them — and that was back when the Justice Department was led by an attorney general who actually gives a damn about stopping police brutality. It is very likely that, were Johnson’s case to proceed to a full trial, Johnson would lose.

But the United States Court of Appeals for the Eighth Circuit dismissed this case before any kind of judicial inquiry into the facts could happen. At this early stage of the litigation, courts are required to assume that the facts are exactly as the plaintiff claims — they must assume that Officer Wilson behaved just as awfully as Johnson alleges. And a majority of the Eighth Circuit just held that, even on those alleged facts, Wilson may not be held accountable.

Judge Roger Leland Wollman’s opinion for the court is brief, and its reasoning is often so cursory that it is difficult to parse. But it basically comes down to this — the Fourth Amendment prohibits “unreasonable searches and seizures,” but to show that such a seizure occurred, Johnson must show that the officer tried to prevent him from leaving, and that Johnson actually submitted to the officer’s authority in some way.


Yet, in the process of arguing that Johnson was free to go, Judge Wollman deploys some simply astounding reasoning. Reasoning like this:

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.

Think about that for a second. This is a federal appellate judge, joined by five other federal appellate judges, arguing that Johnson was free to leave the scene because he managed to flee with his life while he and his friend were under gunfire from a cop.

To the extent that a legal holding can be extracted from Wollman’s opinion, it appears to be summarized in two sentences. “Because there was no verbal or physical impediment to Johnson’s freedom of movement,” Wollman writes — apparently because gunfire does not count — “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 . . . we conclude that no seizure occurred in this case.”

Again, the significance of this case is not that Johnson will lose. Given the Justice Department’s findings in its own investigation into the Michael Brown shooting, Johnson was always likely to lose this case. Rather, the significance is that there is now binding legal precedent, in a federal court whose jurisdiction includes seven states, holding that a cop who behaves in the way Johnson says that Wilson behaved is not liable to their victims.


It’s worth noting that the Eighth Circuit is an outlier court. Of the 18 active and senior judges who sit on this court, just one, Judge Jane Kelly, was appointed by a Democratic president. Kelly and three of her colleagues dissented in this case.

But that was not enough. Binding precedent now says that Ferguson cops can behave with utterly astounding disregard for human life — and that federal civil rights law will not hold them accountable.