# Brown v. Dermott Arkansas, City of

> District Court, E.D. Arkansas · September 27, 2023

URL: https://www.frixlaw.com/law-library/cases/10008122

## Case

- **Court:** District Court, E.D. Arkansas
- **Decided:** September 27, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10008122

## How later opinions describe it (automated extraction)

- holding that “but-for causation” rather than “a substantial factor” must now be shown
- rejecting cat’s paw theory when decisionmaker conducted “independent review” and had “independent basis for his decision’
- holding 10 that Article 2, Section 15 is interpreted “in the same manner as . . . the Fourth Amendment”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
DELTA DIVISION
LEE EDWARD BROWN PLAINTIFF
v. CASE NO. 2:21-CV-00110-BSM
CITY OF DERMOTT, et al. DEFENDANTS
ORDER
Defendants’ motion for judgment on the pleadings and summary judgment [Doc. No.

25] is granted and all of Lee Edward Brown’s claims are dismissed with prejudice.
I. BACKGROUND
Brown is a former Dermott, Arkansas police officer who was fired on April 19, 2021
after being criminally charged with tampering with physical evidence and abuse of office.
Def.’s Statement of Uncontested Material Facts ¶¶ 43, 39, Doc. No. 27 (“SUMF”).

Ultimately, the charges were dismissed but he has not been rehired. SUMF ¶ 53; Sec. Am.
Compl. ¶¶ 9, 35, Doc. No. 21. Brown is suing the City of Dermott, its police chief, Eric
Evans, and another former police officer, Coby Heard, for retaliation in violation of his
federal and state constitutional and statutory rights, and for several state torts. Sec. Am.
Compl. ¶ 1.

Brown was criminally charged for failing to turn in about $20 in quarters seized from
a suspect who robbed a convenience store. Deposition of Jordan Tilley at 9, Doc. No. 33-3;
SUMF ¶¶ 34, 35. Brown completed an incident report documenting the theft of money,
lottery tickets, and beer, and stating that he observed $60 in cash on the ground and a bag full
of quarters at the suspect’s home. SUMF ¶ 19. Video footage from the convenience store
shows the suspect grabbing handfuls of coins from a tray next to the cash register and
stuffing his pockets with them. Id. ¶ 28. Heard went to the suspect’s residence after the

robbery, collected the bag of quarters, and handed it to Brown. Id. ¶¶ 34, 23, 31-32. Evans
saw Heard hand the bag of quarters to Brown. Id. ¶ 24, 35. Brown completed a property
release form documenting his return of two 18-pack containers of beer and $61 dollars in
cash to the store owner, but did not mention the quarters. Property Release Form, SUMF Ex.

4, Doc. No. 27-4.
Heard noticed the discrepancy between the incident report and the release form, and
he and Evans went to the store owner to investigate. SUMF ¶¶ 21-22, 25. The store owner
reported that Brown had told him the quarters were not recovered. Id. ¶ 25. Evans referred
the file to the prosecuting attorney, who transmitted the case to the Arkansas State Police for

investigation. State Police Case File, SUMF Ex. 5 at 1, Doc. No. 27-5. In his interview with
the state police investigator, Brown admitted that Heard “probably” handed him a bag of
quarters or placed it in his vehicle and that he “could have” used them to wash his car.
Transcript of Lee Edward Brown Interview, SUMF Ex. 7 at 14-16, 20, Doc. No. 27-7.
Brown did not claim to have returned the quarters and has no recollection of how they

“somehow” got back to the store owner. SUMF ¶ 33, Pl.’s Resp. Statement of Facts ¶¶ 23,
30, Doc. No. 34. After completing his investigation, the state police investigator turned over
his findings to the prosecuting attorney. SUMF ¶ 36. At some point prior to March 8, 2021,
prosecuting attorney Jordan Tilley contacted the store owner, who confirmed that about $20
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stolen in the robbery had not been returned. SUMF ¶ 38.
Tilley filed a criminal information against Brown, who was placed on administrative
leave with pay. SUMF ¶¶ 40-41. The criminal charges against Brown were widely reported.

Aff. of Lee Edward Brown ¶ 12, Doc. No. 33-2. Brown was then terminated, at least in part,
based on the pending criminal charges. SUMF ¶ 43; Letter to Plaintiff from Chief Evans,
SUMF Ex. 14, Doc. No. 27-14; Deposition of Walter Donald at 6, Doc. No. 33-5. Moreover,
Brown has repeatedly stated that the criminal charges were the “only reason” he was

terminated. Pl.’s Br. Opp’n Mot. Summ. J. 1, 12, 16, 35, 52, Doc. No. 35; Aff. of Lee
Edward Brown ¶ 6. Sometime between March 8, 2021, and December 8, 2022, the store
owner informed Tilley that all the stolen property had been returned. SUMF ¶ 53. The
record does not show when the quarters were returned. Regardless, Tilley dismissed the
charges against Brown. Id.

Brown alleges that the accusations of criminal misconduct, the prosecution, and his
termination were retaliation for his role in reporting an incident in which Heard allegedly
engaged in excessive force against an arrestee named Andre Hawkins. That incident took
place on November 20, 2019, when Brown, his brother Lee Van Brown (“Van”), and another
Dermott police officer, Tim Martin, witnessed Heard choke Hawkins while he was chained

to a pole with a leg iron. SUMF ¶ 2. Each of the three witnesses reported the incident to
superior officers. SUMF ¶¶ 4, 5; Aff. of Lee Van Brown at 1, Doc. No. 33-1. Brown and
Van also reported the incident to members of the city council, which discussed the incident
in November 2019. SUMF ¶ 7; Aff. of Lee Van Brown at 1.
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Van was fired from the Dermott Police Department less than thirty days later. Aff.
of Lee Van Brown at 1. Heard was fired on June 9, 2020. SUMF ¶ 48; Hawkins v. Heard,
No. 2:21-cv-00055-BSM (E.D. Ark.) (“Hawkins v. Heard”), Pl.’s Resp. Opp’n Mot. Summ.

J. Ex. 4 at 4, Doc. No. 27-4. Brown was fired one year and five months after reporting the
excessive force incident. SUMF ¶ 43. Martin remained employed by the Dermott Police
Department as of March 21, 2023. SUMF ¶ 9; Deposition of Lee Edward Brown at 41, Doc.
No. 27-1. While it is not part of the record, judicial notice is taken of Hawkins v. Heard, a

related civil rights suit Hawkins filed on May 14, 2021 against Heard and the City in relation
to the November 20, 2019 choking incident, and the fact that Brown submitted an affidavit
in support of Hawkins’s claims on September 12, 2022. See Hawkins v. Heard, Doc. No. 27-
3; Stutzka v. McCarville, 420 F.3d 757, 761 n.2 (8th Cir. 2005) (observing that courts “may
take judicial notice of judicial opinions and public records”).

II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(c) motions for judgment on the pleadings are
evaluated similarly to Rule 12(b)(6), which permits dismissal when a complaint fails to state
a claim upon which relief may be granted. Gallagher v. City of Clayton, 699 F.3d 1013,
1016 (8th Cir. 2012). To overcome a Rule 12(b)(6) motion, the facts alleged in the complaint

must create a “reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although detailed factual allegations are not
required, threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, are insufficient. Id.
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Summary judgment is appropriate when there is no genuine dispute as to any material
fact, and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P.
56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). Once the moving party

demonstrates that there is no genuine dispute of material fact, the non-moving party may not
rest upon the mere allegations or denials in his pleadings. Holden v. Hirner, 663 F.3d 336,
340 (8th Cir. 2011). Instead, the non-moving party must produce admissible evidence
demonstrating a genuine factual dispute requiring a trial. Id. All reasonable inferences must

be drawn in a light most favorable to the nonmoving party. Holland v. Sam’s Club, 487 F.3d
641, 643 (8th Cir. 2007). The evidence is not weighed, and no credibility determinations are
made. Jenkins v. Winter, 540 F.3d 742, 750 (8th Cir. 2008).
III. DISCUSSION
A. Motion for Judgment on the Pleadings

1. Substantive due process
Brown’s substantive due process claim is dismissed because he has failed to state a
claim. Brown alleges that he was deprived of substantive due process when Heard fabricated
evidence and the City terminated him in retaliation for reporting Heard’s use of excessive
force. Brown’s claims arising from Heard’s pretrial deprivations are, however, governed by

the Fourth Amendment’s right to be free from illegal search and seizure, not the Fourteenth
Amendment’s Due Process Clause. Hoffert v. Westendorf, 854 F. App’x 93, 96 (8th Cir.
2021); Johnson v. McCarver, 942 F.3d 405, 410-11 (8th Cir. 2019). Further, “an
employee’s occupational liberty is not protected by substantive due process when the
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employee is discharged by a governmental employer.” Singleton v. Cecil, 176 F.3d 419, 424
(8th Cir. 1999). “Rather, any cause of action for the deprivation of occupational liberty [is]
confined to a claim under procedural due process.” Id. at 428 (quoting Zorzi v. Cnty. of

Putnam, 30 F.3d 885, 895 (7th Cir. 1994)).
2. Procedural due process
Brown’s procedural due process claim is also dismissed for failure to state a claim.
To prevail on this claim, Brown must show that state law gave him a property interest in his

job. Voss v. Hous. Auth. of the City of Magnolia, Ark., 917 F.3d 618, 625 (8th Cir. 2019).
In Arkansas, employers may generally terminate an at-will employee without cause, with two
exceptions: “(1) where an employee relies upon a personnel manual that contains an express
provision against termination except for cause; and (2) where the employment agreement
contains a provision that the employee will not be discharged except for cause, even if the

agreement has an unspecified term.” Crawford Cnty. v. Jones, 232 S.W.3d 433, 438 (Ark.
2006). Brown has provided no facts supporting either exception.
3. Other claims
Brown raises several other causes of action in passing that must be dismissed because
they fail to state a claim. First, to the extent Garrity v. New Jersey, 385 U.S. 493 (1967) even

affords a private cause of action, Brown fails to state such a claim because he does not allege
that defendants used threats of discharge to obtain incriminatory evidence from him. Id. at
499-500. Second, there is no cause of action based on the Fifth Amendment right to be
presumed innocent, as Brown appears to acknowledge. Pl.’s Br. Opp’n Mot. Summ. J. 12.
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Finally, Brown has failed to allege any factual support for his claim based on the “right to
remonstrate” under Article II, Section 22 of the Arkansas Constitution.
B. Motion for Summary Judgment

Defendants’ motion for summary judgment on Brown’s various other claims against
the City, Heard individually, and Evans individually and in his official capacity, are granted.
1. City of Dermott
Summary judgment is granted on Brown’s claims under: (1) the Arkansas

Whistleblower Protection Act (“AWBA”); (2) state tort law; and (3) 42 U.S.C. section 1983
and the Arkansas Civil Rights Act (“ACRA”).
a. Arkansas Whistleblower Protection Act
To prevail on his AWBA claim, Brown must show “that he suffered an adverse action
because he engaged or intended to engage in an activity protected under the Act and that such

action was unrelated to his own misconduct or poor job performance.” Barrows v. City of
Fort Smith, 360 S.W.3d 117, 124 (Ark. 2010). Brown argues that he was fired for reporting
Heard’s use of excessive force and participating in a sexual harassment investigation of
Heard. He admits that the criminal charges played a role in his termination, however, see
Aff. of Lee Edward Brown ¶ 6, and his conduct and statements provided probable cause for

those charges. See infra § B.2.c. Thus, Brown cannot show that his termination was
unrelated to his own misconduct.
b. Tort Law
Brown alleges the City maliciously prosecuted him and abused process. Summary
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judgment is granted on the malicious prosecution claim because the City is immune from that
claim. Culpepper v. Biggers, 742 F. Supp. 528, 534 (E.D. Ark. 1990) (citing Autry v.
Lawrence, 696 S.W.2d 315, 315-16 (Ark. 1985)). Summary judgment is granted on the

abuse of process claim because nothing in the record shows that defendants filed the criminal
charges to intimidate Brown from testifying in Hawkins’s suit against Heard.
To prevail on his abuse of process claim, Brown must show that “a judicial process
[was] used to extort or coerce . . . after its issuance.” Nat'l Bank of Ark. v. River Crossing

Partners, LLC, 385 S.W.3d 754, 761-62 (Ark. 2011); see Harmon v. Carco Carriage Corp.,
895 S.W.2d 938, 940 (Ark. 1995) (“It is the purpose for which the process is used, once
issued, that is of importance.”). Regardless of the role played by Evans and Heard in
instigating the criminal investigation, no evidence shows that either Evans or Heard used the
pending charges to extort or coerce Brown in any way. In fact, it is undisputed that neither

was involved in the decisions to ether continue prosecuting or drop the charges against
Brown. SUMF ¶ 57; Pl.’s Resp. Statement of Facts ¶ 57.
c. Municipal Liability under 42 U.S.C. § 1983
and the Arkansas Civil Rights Act.
Summary judgment is granted on Brown’s municipal liability claims under 42 U.S.C.
section 1983 and the ACRA. Section 1983 and ACRA, Arkansas Code Annotated section
16-123-105, claims are analyzed almost identically. See Brewington v. Keener, 902 F.3d
796, 800 n.3 (8th Cir. 2018) (citing cases); Ark. Code Ann. § 16-123-105(c). Brown alleges

that the City violated his constitutional rights through the acts of Evans and Dermott Mayor
8
Walter Donald. His allegations against the City center on Evans’s statements about Brown’s
alleged criminal activity, and Brown’s subsequent prosecution and termination.
Summary judgment is appropriate because Brown has failed to show that either

Donald or Evans acted pursuant to a custom of the City. See Williams v. City of Sherwood,
947 F.3d 1107, 1110 (8th Cir. 2020) (affirming dismissal of claims against a municipality
because the plaintiff failed to “identify an ordinance or other municipal action whereby the
city directs someone to commit an act that is a constitutional violation”). Brown also failed

to show that any decision by Donald or Evans constituted the City’s official policy. Their
decisions to report Brown’s perceived wrongdoing and terminate him, respectively, could
have constituted official policy only if, under state law, they “possesse[d] final policymaking
authority in the area in which the challenged conduct occurred.” Thompson v. Shock, 852
F.3d 786, 793 (8th Cir. 2017) (citation omitted). Final policymaking authority is distinct

from the “discretion to hire and fire.” Davison v. City of Minneapolis, Minn., 490 F.3d 648,
660 (8th Cir. 2007).
Dermott is a city of the second class. See Ark. Code Ann. § 14-37-105 (second class
cities have populations between 500 and 2,500); SUMF ¶ 61 (Dermott’s population is 2,021).
Thus, the Dermott City Council, not Evans or Donald, was the final policymaker. Ark. Code

Ann. § 14-52-102 (in a second class city, the city council makes police policy); see, e.g.,
Brinkley v. City of Helena-W. Helena, Ark., No. 2:11-CV-00207-SWW, 2014 WL 4164614,
at *4 (E.D. Ark. Aug. 21, 2014) (same); Greer v. City of Warren, No. 1:10-CV-01065, 2012
WL 1014658, at *13 (W.D. Ark. Mar. 23, 2012) (neither mayor nor police chief were final
9
policymakers for police department personnel matters). And nothing indicates that Brown
was accused of crimes, prosecuted, or terminated because of a policy of the City or according
to a pervasive custom of the City.

2. Individual Capacity Claims
a. Qualified immunity
Defendants are immune from the individual capacity claims alleged against them. An
officer is entitled to qualified immunity from federal constitutional claims unless (1) “the

facts alleged, taken in the light most favorable to the injured party, show that the officer’s
conduct violated a constitutional right”; and (2) “the constitutional right was clearly
established at the time of the deprivation so that a reasonable officer would understand his
conduct was unlawful.” Ingrassia v. Schafer, 825 F.3d 891, 896 (8th Cir. 2016). Arkansas
qualified immunity doctrine is similar: an officer is entitled to qualified immunity unless the

plaintiff “has (1) asserted a statutory or constitutional violation, (2) demonstrated that the
statutory or constitutional right is clearly established, and (3) raised a genuine issue of fact
as to whether the official would have known that the conduct violated that clearly established
right.” Sullivan v. Coney, 427 S.W.3d 682, 685-86 (Ark. 2013).
b. Constitutional malicious prosecution claims

Summary judgment is granted on Brown’s malicious prosecution claims under the
Fourth Amendment and Article 2, Section 15 of the Arkansas Constitution because Brown
was never seized. These provisions mirror each other and are interpreted identically. See
Ark. Const. Art. 2, § 15; Mullinax v. Arkansas, 938 S.W.2d 801, 805 (Ark. 1997) (holding
10
that Article 2, Section 15 is interpreted “in the same manner as . . . the Fourth Amendment”).
These provisions prevent “unreasonable searches and seizures.” U.S. Const. amend. IV; Ark.
Const. Art. 2, § 15. Brown was never arrested: the only restrictions on his liberty occurred

when Tilley filed the criminal information and Brown was served with a summons to appear
in court to answer the charges. SUMF ¶¶ 40, 52. These restrictions do not constitute a
seizure. See Tech. Ordnance, Inc. v. United States, 244 F.3d 641, 651 (8th Cir. 2001) (a
summons to appear in court is not a seizure); Hockbein v. Pine Cnty., No. CV 17-5224

(DWF/LIB), 2019 WL 135697, at *3 (D. Minn. Jan. 8, 2019) (same).
c. Retaliatory prosecution
Brown alleges that Heard and Evans induced the prosecuting attorney to prosecute
him in retaliation for reporting Heard’s use of excessive force. An essential element of
Brown’s retaliatory prosecution claim is “the absence of probable cause for the underlying

criminal charge.” Lozman v. City of Riviera Beach, Fla., 138 S. Ct. 1945, 1952 (2018).
Summary judgment is granted because, at the time the charging decision was made,
there was probable cause to prosecute Brown. Probable cause exists when the responsible
official “has reasonably trustworthy information that is sufficient to lead a person of
reasonable caution to believe that the suspect has committed or is committing a crime.”

Klein v. Steinkamp, 44 F.4th 1111, 1115 (8th Cir. 2022). It is undisputed that, at the time the
prosecuting attorney filed charges against Brown, he had the following facts: the robbery
suspect was caught on video stuffing his pockets with quarters from the convenience store;
Brown documented in the incident report that he observed a bag of quarters in the suspect’s
11
possession when he apprehended the suspect; Heard saw the quarters at the suspect’s
residence, placed them in an evidence bag, and transferred possession of the bag to Brown;
Evans saw the bag and saw it being placed in Brown’s possession; Brown filled out a

property release form that did not mention the quarters; two police officers reported that the
store owner told them the quarters had not been returned; the store owner gave the same story
to Tilley; and Brown admitted that the quarters were “probably” placed in his possession and
that he “could have” used them to wash his car.

Probable cause in the context of a malicious prosecution claim is determined based
on the “facts before the action commenced,” not those that subsequently emerge. Sundeen
v. Kroger, 133 S.W.3d 393, 397 (Ark. 2003); see Gilmore v. City of Minneapolis, 837 F.3d
827, 833 (8th Cir. 2016) (“[P]robable cause is determined at the moment the arrest was made
and any later developed facts are irrelevant to the probable cause analysis for an arrest.”)

(cleaned up). Therefore, Brown’s arguments about what developed after the charges were
filed, and whether the state police investigator believed there was probable cause to bring the
charges, are unconvincing. The undisputed evidence was sufficient, as a matter of law, to
establish probable cause. See Wood v. City of Bismarck, No. 1:21-CV-63, 2021 WL
5183860, at *3, 5 (D.N.D. Oct. 15, 2021) (holding that probable cause in a retaliatory

prosecution case is a question of law) (citing Peterson v. City of Plymouth, 60 F.3d 469, 475
(8th Cir. 1995)).
d. First Amendment employment discrimination
Brown alleges that defendants discriminated against him in violation of the First
12
Amendment by firing him for reporting Heard’s use of excessive force. For Brown to prevail
on this retaliation claim, he must prove that: (1) he engaged in activity protected by the First
Amendment; (2) the defendant took an adverse employment action against him; and (3) the

protected conduct was the but-for cause of the defendant's decision to take the adverse
employment action. See Davison, 490 F.3d at 655; Laney v. City of St. Louis, Mo., 56 F.4th
1153, 1157 n.2 (8th Cir. 2023) (holding that “but-for causation” rather than “a substantial
factor” must now be shown).

Summary judgment is granted because Brown has not established that retaliation for
his reporting of excessive force was the but-for cause of his termination. First, the pending
criminal charges against Brown are an “obvious alternative explanation” for Brown’s
termination. See Laney, 56 F.4th at 1158. In fact, Brown repeatedly stated that the criminal
charges were the “only reason” Donald terminated him. Pl.’s Br. Opp’n Mot. Summ. J. 1,

12, 16, 35, 52. Next, no inference of causation can be drawn from the timing of Brown’s
termination because well over a year elapsed between the time he reported the excessive
force and the time he was fired. See Tyler v. Univ. of Ark. Bd. of Trs., 628 F.3d 980, 986-87
(8th Cir. 2011) (holding that an inference of causation weakens with the passage of time and
“vanishes altogether when the time gap between the protected activity and the adverse

employment action is measured in months”). Finally, Brown’s cat’s paw argument fails
because it requires Evans’s statements about Brown’s perceived criminal activity to have
caused the prosecution to be commenced, but there is no evidence that the prosecuting
attorney decided to bring charges based on anything other than his own independent
13
assessment that probable cause existed. See Richardson v. Sugg, 448 F.3d 1046, 1060 (8th
Cir. 2006) (rejecting cat’s paw theory when decisionmaker conducted “independent review”
and had “independent basis for his decision’).
e. Tort Claims
Summary judgment is granted on Brown’s state law tort claims for malicious
prosecution, abuse of process, and defamation. Like the City, the individual defendants have
immunity with respect to Brown’s malicious prosecution claim. Autry, 696 S.W.2d at 315-
16. Brown’s abuse of process claim fails for the reasons stated above in section B.1.b.
Brown’s defamation claim fails because there is no genuine dispute as to the truth of Heard’s
statements about Brown’s alleged theft. To prevail on that claim, Brown must prove, among
other things, that the allegedly defamatory statement was false. Wirges v. Brewer, 389
S.W.2d 226, 228 (Ark. 1965) (“Truth, of course, is a complete defense to a charge of
defamation.”). Not only has Brown failed to show that Heard’s statements were false, but
Brown’s own statements to the state police investigator corroborate Heard’s version of
events. Supra § B.2.c.
IV. CONCLUSION
For the foregoing reasons, the defendants’ motion for judgment on the pleadings and
summary judgment is granted and all of Brown’s claims are dismissed with prejudice.
IT IS SO ORDERED this 27th day of September, 2023.
A ALD
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10008122. Public record. Not legal advice.