Petition for Writ of Certiorari — Shelby Hawkins, Petitioner v. Johnny Banks, III

APPENDIX A

United States Court of Appeals

For The Eighth Circuit

Thomas F. Eagleton U.S. Courthouse

111 South 10th Street, Room 24.329

St. Louis, Missouri 63102

Michael E. Gans

Clerk of Court

VOICE (314) 244-2400

FAX (314) 244-2780

www.ca8.uscourts.gov

May 27, 2021

Ms. Sara Lynn Monaghan

ARKANSAS MUNICIPAL LEAGUE

Legal

301 W. Second Street

P.O. Box 38

North Little Rock, AR 72115-0000

RE: 19-3092 Johnny Banks v. Shelby Hawkins

Dear Counsel:

The court has issued an opinion in this case.

Judgment has been entered in accordance with the

opinion. The opinion will be released to the public at

10:00 a.m. today. Please hold the opinion in confidence

until that time.

Please review Federal Rules of Appellate

1a

Procedure and the Eighth Circuit Rules on postsubmission procedure to ensure that any contemplated

filing is timely and in compliance with the rules. Note

particularly that petitions for rehearing and petitions

for rehearing en banc must be received in the clerk's

office within 14 days of the date of the entry of

judgment. Counsel-filed petitions must be filed

electronically in CM/ECF. Paper copies are not

required. No grace period for mailing is allowed, and

the date of the postmark is irrelevant for pro-se-filed

petitions. Any petition for rehearing or petition for

rehearing en banc which is not received within the 14

day period for filing permitted by FRAP 40 may be

denied as untimely.

Michael E. Gans

Clerk of Court

CRJ

Enclosure(s)

cc:

Mr. Terrence Cain

Mr. Shawn Garrick Childs

Mr. Jim McCormack

Mr. John Winfred Walker Sr.

District Court/Agency

4:18-cv-00259-BSM

2a

Case

Number(s):

United States Court of Appeals

For The Eighth Circuit

Thomas F. Eagleton U.S. Courthouse

111 South 10th Street, Room 24.329

St. Louis, Missouri 63102

Michael E. Gans

Clerk of Court

VOICE (314) 244-2400

FAX (314) 244-2780

www.ca8.uscourts.gov

May 27, 2021

West Publishing

Opinions Clerk

610 Opperman Drive

Building D D4-40

Eagan, MN 55123-0000

RE: 19-3092 Johnny Banks v. Shelby Hawkins

Dear Sirs:

case.

A published opinion was filed today in the above

Counsel who presented argument on behalf of

the appellant was Sara Lynn Monaghan, of North

Little Rock, AR. The following attorney(s) appeared on

the appellant brief; Sara Lynn Monaghan, of North

Little Rock, AR.

Counsel who presented argument on behalf of

the appellee was Terrence Cain, of Little Rock, AR.

3a

The following attorney(s) appeared on the appellee

brief; Terrence Cain, of Little Rock, AR.

The judge who heard the case in the district

court was Honorable Brian S. Miller. The judgment of

the district court was entered on September 26, 2019.

If you have any questions concerning this case, please

call this office.

Michael E. Gans

Clerk of Court

CRJ

Enclosure(s)

cc:

MO Lawyers Weekly

District Court/Agency

4:18-cv-00259-BSM

4a

Case

Number(s):

United States Court of Appeals

For the Eighth Circuit

No. 19-3092

Johnny Banks

Plaintiff - Appellee

v.

Shelby Hawkins

Defendant - Appellant

City of Shannon Hills

Defendant

Appeal from United States District Court

for the Eastern District of Arkansas - Little Rock

Submitted: September 22, 2020

Filed: May 27, 2021

Before KELLY, WOLLMAN, and STRAS, Circuit

Judges.

KELLY, Circuit Judge.

In February 2017, police officer Shelby

Hawkins, of the Shannon Hills Police Department in

Arkansas, shot Johnny Banks in the course of

investigating a potential domestic disturbance. Banks

sued under 42 U.S.C. § 1983, alleging violations of the

Fourth and Fourteenth Amendments. The district

5a

court1 denied Hawkins’s motion for summary

judgment on Banks’s excessive force claim, finding

that genuine issues of material fact precluded a grant

of qualified immunity, and this interlocutory appeal

followed. We affirm.

I.

Shortly before 10 p.m. on February 17, 2017,

Vanessa Banks called 911 during an argument with

her husband, Johnny Banks. Hearing a man and

woman arguing—but “nothing” to indicate “that

anything physical had happened”—the 911 operator

dispatched Hawkins to investigate a potential

domestic disturbance at the Banks residence. When

Hawkins arrived on the scene, he saw a vehicle with

its hazard lights flashing parked in the driveway. He

called for backup and, as he approached the home, he

heard a woman inside say in a muffled voice, “no, no,

no.” He knocked on the front door and announced his

presence, but no one answered, so he walked around

the house to hear what was going on inside. From the

yard, he heard a “loud” noise near the back of the

house that he later testified was “not a voice”—but he

could not otherwise make it out. After about 10

minutes, Hawkins approached the front door a second

time. He drew his gun and started kicking the door, at

which point he heard someone inside say “who the f***

is this?” Hawkins did not answer. Then, several things

happened: Johnny Banks opened the door, Hawkins

1

The Honorable Brian S. Miller, United States District Judge for

the Eastern District of Arkansas.

6a

was hit on the head by an unknown object, and

Hawkins shot Banks.2 It is undisputed that Johnny

Banks was unarmed and did not hit Hawkins or throw

anything at him.3

Banks survived the shooting, though the bullet

severed a nerve in his leg and clipped his femoral

artery. He filed this lawsuit in February 2018 against

Hawkins and the City of Shannon Hills, and the

parties eventually filed cross-motions for summary

judgment. In September 2019, as pertinent here, the

district court denied Hawkins’s motion as to Banks’s

claim of excessive force on the basis of qualified

immunity.4 Hawkins now appeals.

II.

In determining whether qualified immunity

applies to shield Hawkins from liability under § 1983,

“we ask whether ‘(1) the evidence, viewed in the light

most favorable to [Banks], establishes a violation of a

constitutional or statutory right, and (2) the right was

2

We will sometimes refer to Johnny Banks by his last name; but

to avoid any confusion, we will refer to Vanessa Banks only by her

full name.

3

There is nothing in the record to suggest that anyone threw an

object at Hawkins. Though it is inconclusive, the record contains

references to a metal sign that was hanging on or above the door

that may have hit Hawkins when the door swung open.

4

The district court also granted Hawkins’s motion for summary

judgment on Banks’s equal protection, negligent hiring, failure to

train, and ratification claims, and denied Banks’s motion in its

entirety. These decisions are not at issue in this appeal.

7a

clearly established at the time of the violation, such

that a reasonable offic[er] would have known that his

actions were unlawful.’” Cole ex rel. Est. of Richards v.

Hutchins, 959 F.3d 1127, 1132 (8th Cir. 2020) (quoting

Rudley v. Little Rock Police Dep’t, 935 F.3d 651, 653

(8th Cir. 2019)).

We review the district court’s denial of summary

judgment de novo, viewing the evidence in the light

most favorable to Johnny Banks and giving him the

benefit of all reasonable inferences. Edwards v. Byrd,

750 F.3d 728, 731 (8th Cir. 2014). On interlocutory

appeal from a denial of qualified immunity, though,

“we are constrained by the version of the facts that the

district court assumed or likely assumed in reaching

its decision.” Thompson v. Murray, 800 F.3d 979, 983

(8th Cir. 2015). Unless that version of the facts is

“blatantly contradicted by the record,” “our jurisdiction

is limited to resolving abstract questions of law related

to the qualified-immunity determination” — that is,

the purely legal questions of “whether a dispute

identified by the district court is material” and

“whether the allegedly infringed federal right was

clearly established.” Id. at 982-83; see also id. at 983

(noting that “[w]e lack jurisdiction to review the

district court’s determination regarding evidence

sufficiency—i.e., what facts a party may or may not be

able to prove at trial” (citing Johnson v. Jones, 515

U.S. 304, 313 (1995))); K.W.P. v. Kan. City Pub. Schs.,

931 F.3d 813, 821 (8th Cir. 2019) (explaining that the

denial of qualified immunity is immediately

appealable if the disputed facts are not material to the

legal question).

8a

In this case, Hawkins first argues that the

factual disputes found by the district court are

immaterial and, in the alternative, that they are

“blatantly contradicted by the record.” Second, he

argues that Banks’s right to be free from excessive

force was not clearly established at the time and under

the particular circumstances of this case. We disagree.

A.

To determine whether Hawkins used excessive

force in violation of the Fourth Amendment,

we“ask[]‘whether the amount of force used was

objectivelyreasonable under the particular

circumstances.’” Hutchins, 959 F.3d at 1132 (quoting

Z.J. ex rel. Jones v. Kan. City Bd. of Police Comm’rs,

931 F.3d 672, 681 (8th Cir. 2019)). We evaluate what

is objectively reasonable “from the perspective of a

reasonable officer on the scene,” which “turns on those

facts known to the officer at the precise moment he

effectuated the seizure.” Id. (cleaned up); see also id.

(“A police officer’s use of deadly force against a suspect

is a ‘seizure’ under the Fourth Amendment.”). Though

we generally consider the totality of the circumstances,

it is well-established that “‘absent probable cause’ for

an officer to believe the suspect poses ‘an immediate

threat of death or serious bodily injury’ to others, ‘use

of deadly force is not objectively reasonable.’” Id.

(quoting Billingsley v. City of Omaha, 277 F.3d 990,

993 (8th Cir. 2002)). Where the record does not

conclusively establish the lawfulness of an officer’s use

of force, summary judgment on the basis of qualified

immunity is inappropriate. Nance v. Sammis, 586 F.3d

9a

604, 612-13 (8th Cir. 2009).

Hawkins contends he was justified in shooting

Johnny Banks because a reasonable officer in the same

circumstances would have believed that Vanessa

Banks was in “imminent danger.” On this issue, the

district court found that the “state of affairs”outside

the residence, including whether Hawkins heard

screams coming from inside, constituted a material

factual dispute—that is, a dispute that is “outcome

determinative.” See Mosley v. City of Northwoods, 415

F.3d 908, 910-11 (8th Cir. 2005). Vanessa Banks called

911 at approximately 9:20 p.m. and Hawkins arrived

at the house at 9:26 p.m. Hawkins called for backup at

around 9:27 p.m. When the Arkansas State Police later

interviewed Hawkins as part of a criminal

investigation into the shooting, he told them that both

before and after he called for backup, he heard “blood

curdling screams” from a woman inside. He said he

heard a muffled “no, no, no” after that.

But Vanessa Banks’s deposition testimony

contradicts Hawkins’s account. She testified that she

stopped yelling and arguing with her husband about

five minutes after calling 911—meaning around 9:25

p.m.—once she heard the police radio outside. After

that, she “just sat there” because she knew the police

had arrived and there was “no point” in continuing. On

this record, a jury could credit her testimony and

question why—if the situation really was

volatile—Hawkins waited 10 minutes after hearing

screams to attempt entry. Resolving these factual

disputes in Banks’s favor, there was no reason to think

10a

that someone in the house was in imminent danger,

especially considering that Hawkins never saw anyone

commit a crime. Cf. Johnson v. City of Minneapolis,

901 F.3d 963, 969 (8th Cir. 2018) (explaining that “one

factor which cut[] decisively against arguable probable

cause” was that the officer “did not observe [the

suspect] committing a criminal act—and nobody told

him that [she] did either”).

In any event, we evaluate the reasonableness of

Hawkins’s conduct by looking primarily at the threat

present at the time he deployed the deadly force. See

Gardner v. Buerger, 82 F.3d 248, 253 (8th Cir. 1996)

(“[W]e focus on the seizure itself—here, the

shooting—and not on the events leading up to it.”).

Hawkins testified that he did not hear screaming,

muffled words, or any other concerning noise around

the time he started kicking Banks’s front door. So even

assuming the situation was dangerous when Vanessa

Banks called 911, Hawkins had no reason to believe

that was still the case. See Hutchins, 959 F.3d at 1134

(explaining that even “a few seconds is enough time to

determine an immediate threat has passed,” thus

“extinguishing a[ny] preexisting justification for the

use of deadly force”). What’s more, both Johnny and

Vanessa Banks testified that Hawkins fired his gun

the moment Johnny Banks opened the door; and

Hawkins himself said that he could not see where

Vanessa Banks was when he pulled the trigger. If

Hawkins was unable to ascertain Vanessa Banks’s

position relative to the line of fire, he was not acting to

protect her. See Craighead v. Lee, 399 F.3d 954, 962

(8th Cir. 2005) (“[T]he facts we are required to assume

11a

show that [the officer] fired the shotgun in

circumstances in which he knew or should have known

that he would hit both Craighead and Scott, so he

cannot have fired . . . to protect Scott.”). Construing

the disputed record in Johnny Banks’s favor, a jury

could conclude that no reasonable officer would have

thought deadly force was necessary in that moment to

protect Vanessa Banks from imminent danger. See

Montoya v. City of Flandreau, 669 F.3d 867, 872 (8th

Cir. 2012) (“While a jury may credit [the officer’s]

characterization of the incident and disbelieve [the

plaintiff] at trial, it is not our function to remove the

credibility assessment from the jury.” (cleaned up)).

Similarly, though Hawkins claims he felt

threatened by Johnny Banks’s “aggressive composure”

and thought he was “being attacked,” we agree with

the district court that Banks’s demeanor and conduct

are in dispute. For his part, Hawkins avers that when

the front door swung open, Banks was charging toward

him with his hand raised. According to Vanessa

Banks, however, Johnny Banks did not move or cross

the threshold of the doorway before Hawkins shot him.

On these facts, even if Hawkins believed Johnny

Banks was about to attack him, that belief was

unreasonable. See Ribbey v. Cox, 222 F.3d 1040, 1043

(8th Cir. 2000) (affirming denial of qualified immunity

where “a genuine question of fact exist[ed] regarding

whether [the officer] had probable cause to believe that

[the suspect], who . . . was turning reflexively down

and away from the breaking window, was reaching for

a weapon, and thus posed a significant threat of death

or serious physical harm”).

12a

Indeed, though Hawkins asserts that he “shot

Banks out of fear for his safety,” the district court

highlighted Banks’s account that “all he did was open

the door and . . . Hawkins instantaneously shot him.”

Hawkins fails to explain how this finding is

contradicted by the record, or why it would be

immaterial. It was “almost like [the] door was

booby-trapped,” Vanessa Banks testified, because

Hawkins “literally. . . just shot”the instant it opened,

suggesting Hawkins did not even take the time to

ascertain Banks’s demeanor before shooting him.5 We

recognize that officers often have to make “split-second

judgments” in “tense, uncertain, and rapidly evolving”

circumstances. Graham v. Connor, 490 U.S. 386, 397

(1989). But here, the facts indicate that Hawkins fired

either (1) instinctively, without a warning or even a

“split-second” pause to assess the situation, or (2) after

ascertaining that Johnny Banks was not acting in an

aggressive or threatening manner. Neither course of

conduct is objectively reasonable under the Fourth

Amendment. See Ludwig, 54 F.3d at 473 (reversing

grant of qualified immunity where “material questions

of fact remain[ed] as to whether [the suspect’s] actions

at the time of the shooting, even if dangerous,

5

Hawkins contends he shouted “stop!” right before shooting, but

the Bankses dispute that account, too, and Hawkins himself failed

to mention it in his statement to the Shannon Hills Police

Department. Viewing the facts in Banks’s favor, we have to

assume that a warning was feasible and that Hawkins

nevertheless failed to give it, which “exacerbate[s] the

circumstances and militates against finding use of deadly force

objectively reasonable.” Hutchins, 959 F.3d at 1133 (cleaned up)

(quoting Ludwig v. Anderson, 54 F.3d 465, 474 (8th Cir. 1995)).

13a

threatening, or aggressive, posed a threat of serious

physical harm” (cleaned up)). After all, “[q]ualified

immunity does not protect ‘the plainly incompetent.’”

Bell v. Neukirch, 979 F.3d 594, 609 (8th Cir. 2020)

(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

Moreover, to the extent Hawkins contends he

felt threatened because he was struck in the head by

an unknown object, there is nothing in the record to

suggest that the injury was attributable to Banks.

Hawkins repeatedly stated in his deposition that he

knew—at the time of the incident—that whatever

struck him could not have come from Banks, or, at

minimum, that he had no reason to believe that it did.

This is consistent with other evidence in the record.

Based on all the deposition testimony, it is undisputed

that (1) Banks remained in front of Hawkins for the

duration of the encounter, (2) Hawkins did not see

Banks holding a weapon or any other object when the

door opened, and (3) Banks never swung at or touched

Hawkins. A reasonable officer in Hawkins’s shoes

would not have believed he was under attack by

Johnny Banks—regardless of how rapidly the situation

unfolded. See Johnson v. City of Minneapolis, 901 F.3d

at 967 (concluding, despite the “charged scene” and the

suspect’s “heightened emotional state,” that the police

officer’s mistaken belief that the suspect had kicked

him was objectively unreasonable given the “strong

evidence that [the suspect] would be unable to deliver

a kick inflicting explosive pain”).

Ultimately, the “facts known to [Hawkins] at

the precise moment he effectuated the seizure,”

14a

Hutchins, 959 F.3d at 1132 (cleaned up), were that

Banks opened the door with some force after shouting

an expletive, Banks was unarmed and not moving

toward Hawkins, an unknown object that did not come

from Banks hit Hawkins on the head, and that all this

was happening at the scene of a suspected domestic

disturbance that was no longer volatile and that

Hawkins had not witnessed. This is not enough to

justify the use of deadly force. See Bauer v. Norris, 713

F.2d 408, 412-13 (8th Cir. 1983) (concluding that force

was not justified, even though plaintiffs “were

argumentative” and “vituperative,” because officers did

not give a reason for the stop and there was “virtually

no evidence” that (1) “[plaintiffs] actually physically

resisted or physically threatened” the officers, (2) “a

crime had been committed in the immediate vicinity,”

or (3) plaintiffs “were engaged in any wrongful

conduct”). Put differently, the facts suggest that

Hawkins shot Banks despite perceiving no immediate

danger of death or serious bodily injury to himself or to

anyone else. And under these circumstances, no

reasonable officer would have believed he had probable

cause to use deadly force.6

6

To the extent Hawkins argues he is entitled to qualified

immunity because he believed Banks would seize his gun, the

reasonableness of that belief constitutes yet another material

factual dispute. See Brown v. City of Golden Valley, 574 F.3d 491,

497 (8th Cir. 2009) (explaining that “[w]hether [the officer]

reasonably interpreted [the suspect’s actions] as a realistic threat

to his personal safety . . . is a matter for a jury to decide”). A

reasonable officer in Hawkins’s position—knowing that Banks had

not struck him, lacking evidence that Banks had committed a

crime, and having no indication that Banks posed an immediate

15a

B.

Johnny Banks’s right to be free from excessive

force under these circumstances was also clearly

established in February 2017. To be clearly

established, “[t]he contours of the right must be

sufficiently clear that a reasonable offic[er] would

understand that what he is doing violates that right.”

Anderson v. Creighton, 483 U.S. 635, 640 (1987). The

inquiry “must be particularized to the facts of the

case,” White v. Pauly, 137 S. Ct. 548, 552 (2017), such

that “the state of the law” in February 2017 would

have given a reasonable officer “fair warning” that

shooting Banks “was unconstitutional,” Hope v. Pelzer,

536 U.S. 730, 741 (2002).

threat—would have had no reason to believe Banks would seize

his weapon. See id. at 497-98 (concluding it was objectively

unreasonable for an officer to believe that the suspect would (1)

kick the officers when she raised her knees to her chest, given

that a jury could interpret it “as an instinctive self-protective

reaction,” or (2) use nearby glass tumblers as weapons when she

did not reach for them or otherwise threaten the officers).

In any event, this argument also depends on Hawkins’s

claim that he thought he was about to lose consciousness. The

record reflects that Hawkins was sufficiently conscious to point

his gun and pull the trigger. And seconds later, right after

shooting Banks, Hawkins was able to place his gun back in its

holster, walk several steps inside the house, give Banks

instructions, and then physically restrain Banks with his knee.

From these facts, a jury could reasonably infer that Hawkins not

only had sufficient control of his faculties, but that he also knew

he did.

16a

In evaluating the clarity of the law at the time

of the shooting, we may look to precedent not only to

define the right at issue, but also to determine the

requisite degree of factual similarity. Though “earlier

cases involving fundamentally similar facts can

provide especially strong support for a conclusion that

the law is clearly established, they are not necessary

to such a finding.” Id. (cleaned up); see also id.

(explaining that the “same is true of cases with

‘materially similar’ facts”). Thus, Banks does not have

to point to a nearly identical case on the facts for the

right to be clearly established. Our precedent does not

set such a prohibitively difficult standard. See Capps

v. Olson, 780 F.3d 879, 886 (8th Cir. 2015) (“For a

constitutional right to be clearly established, there

does not have to be a previous case with exactly the

same factual issues (cleaned up)); Craighead, 399 F.3d

at 962 (“[T]he issue is not whether prior cases present

facts substantially similar to the present case but

whether prior cases would have put a reasonable

officer on notice that the use of deadly force in these

circumstances would violate [the plaintiff’s] right not

to be seized by the use of excessive force.”).

Take, for instance, our decision in Howard v.

Kan. City Police Dep’t, 570 F.3d 984 (8th Cir. 2009).

There, officers pushed the shirtless plaintiff onto hot

asphalt and questioned him for several minutes,

refusing to move him to a nearby patch of grass

despite his persistent complaints of pain and causing

him to suffer second-degree burns. Id. at 987. In

concluding that “it was clearly established that the

Fourth Amendment was violated if an officer

17a

unreasonably ignored the complaints of a seized

person that the force applied by the officer was causing

more than minor injury,” we relied on “a series of cases

involving failure to respond to complaints of

overly-tight handcuffs.” Id. at 991 (collecting cases). It

mattered not that hot asphalt is different from tight

restraints (arguably a more familiar problem to law

enforcement), or that the duration of the challenged

conduct differed from that in the cited decisions. See

id. at 991-92. Existing case law made the

constitutional violation sufficiently clear, even in

unique circumstances. See id. at 992. This principle

repeats itself in our qualified immunity jurisprudence.

See, e.g., Luer v. Clinton, 987 F.3d 1160, 1164, 1169-70

(8th Cir. 2021) (finding constitutional right to be free

from “full blown” warrantless search to be clearly

established, even where door to the house was already

open, based on precedent recognizing the same right

when officers breached closed doors); Quraishi v. St.

Charles Cnty., 986 F.3d 831, 839 (8th Cir. 2021)

(finding constitutional right to be free from an arrest

that “interfere[s] with First Amendment activity”

absent arguable probable cause to be clearly

established where officer deployed tear-gas canister at

reporters, based on precedent not involving tear gas).7

7

Other examples include Robbins v. City of Des Moines, 984 F.3d

673, 681 (8th Cir. 2021); Bell, 979 F.3d at 607-08; Z.J. ex rel. Jones

v. Kansas City Bd. of Police Comm’rs, 931 F.3d 672, 683-84 (8th

Cir. 2019); Johnson v. City of Minneapolis, 901 F.3d at 971;

Shekleton v. Eichenberger, 677 F.3d 361, 367 (8th Cir. 2012);

Rohrbough v. Hall, 586 F.3d 582, 586-87 (8th Cir. 2009); Brown,

574 F.3d at 499-500.

18a

Applying the appropriate level of specificity

here, we conclude that a reasonable officer had fair

warning in February 2017 that he may not use deadly

force against a suspect who did not present an

imminent threat of death or serious injury, even if the

officer felt attacked earlier and even if he believed the

suspect had previously posed a threat. This proposition

finds support in at least two cases involving similar,

albeit not identical, circumstances: Ellison v. Lesher,

796 F.3d 910 (8th Cir. 2015), and Nance v. Sammis,

586 F.3d 604 (8th Cir. 2009).

In Ellison, we considered whether an officer

used excessive force when she shot and killed a

67-year-old man in his apartment. 796 F.3d at 913.

Similarly to Hawkins, the officers there recounted a

potentially dangerous situation and observed signs of

“disruption.” See id. at 915. When Ellison purportedly

“attack[ed]” the officers, “a physical altercation

ensued.” Id. at 914, 917. Although the altercation was

over by that point, Officer Lesher shot and killed

Ellison shortly after, alleging—not unlike

Hawkins—that Ellison “charged at the officers while

swinging a cane.” Id. at 916. Because “the facts and

circumstances confronting Lesher . . . at the moment

when she shot and killed Ellison” were disputed, as

they are here, we affirmed the denial of qualified

immunity on Ellison’s claim against Lesher. Id. at

916-17. Specifically, we found that Lesher used deadly

force against an emptyhanded suspect who—despite

having pushed the officers several minutes

earlier—Lesher had no reason to believe posed a

threat of imminent harm at the time she fired her gun.

19a

See id. at 914, 916-17. That Ellison allegedly charged

the officers with a cane did not factor into the analysis,

because we had to “accept for purposes of our decision

that Ellison was not wielding the cane when the

shooting occurred.” Id. at 917. The same reasoning

applies here. We must presume that, at the moment

Hawkins shot Banks, there was no longer a threat to

Vanessa Banks’s safety—assuming there ever

was—and Johnny Banks was not charging Hawkins or

otherwise moving towards him. As in Ellison, “[i]f

[Hawkins] shot [Banks] while he was simply standing

in his [home] and holding no [weapon], then there

were not reasonable grounds to believe that [Banks]

posed a serious threat of death or serious physical

injury to the officers or others.” Id.

Similarly, the officers in Nance were also

responding to a“dangerous situation” when one of

them shot the suspect. 586 F.3d at 611. We

nevertheless affirmed the denial of qualified immunity

because, even though the suspect had a gun in his

pants and may have raised his hands while trying to

get to the ground, he was not holding the gun or acting

in a threatening manner and the officers failed to

provide a warning before shooting. Id. at 610-11. In

other words, the officers had no “reason to fear for

their safety at the time of the shooting.” Id. at 610.

This means that Hawkins had fair warning in

February 2017 that fear of imminent harm cannot

justify shooting a suspect absent a reasonable basis to

believe the suspect would act violently in that moment.

As in Nance, the fact that Hawkins “knew [he] might

encounter a dangerous situation” did “not permit the

20a

use of deadly force,”even if Banks raised his hand

when he opened the front door. Id. at 611.

“[O]n the facts we are bound to assume,”

Hutchins, 959 F.3d at 1136, Ellison and Nance “clearly

prohibit[ed]” Hawkins’s conduct, District of Columbia

v. Wesby, 138 S. Ct. 577, 590 (2018). This is further

supported by a “body of relevant case law.” Johnson v.

City of Minneapolis, 901 F.3d at 971 (quoting Wesby,

138 S. Ct. at 590). See, e.g., id. (holding that officer

violated clearly established law in 2013 when he

“ignored exculpatory evidence,” failed to question an

eyewitness, and did not observe the crime, yet still

arrested the suspect for allegedly kicking him and

causing him “explosive pain”); Wallace v. City of

Alexander, 843 F.3d 763, 768-70 (8th Cir. 2016)

(holding that officer’s use of deadly force violated

clearly established law where it was disputed whether

the suspect engaged the officer in a physical struggle

and where the suspect “did not pose an immediate and

significant threat of serious injury,” “may not have

committed any violent felony,” and “was not holding a

firearm” (cleaned up)); Craighead, 399 F.3d at 962 (“At

least since [Tennessee v. Garner, 471 U.S. 1 (1985)]

was decided. . . officers have been on notice that they

may not use deadly force unless the suspect poses a

significant threat of death or serious physical injury to

the officer or others.”).

At bottom, while the fact that Hawkins suffered

a blow to the head from a source he knew was not

Banks may amount to a “novel factual circumstance[],”

Hope, 536 U.S. at 741, it does not blur the contours of

21a

the constitutional right at issue. Even assuming he

thought he was “under attack,” the record indicates

that Hawkins nevertheless understood he was not

under attack by Banks.8 Because a reasonable officer

in the same circumstances as Hawkins would have

known that it was unlawful to shoot an unarmed and

nonaggressive man who posed no imminent threat to

the officer or to anyone else, we conclude—at this stage

of the proceedings—that Hawkins’s use of deadly force

violated clearly established law.

III.

“The intrusiveness of a seizure by means of

deadly force is unmatched.” Garner, 471 U.S. at 9. As

our sister circuit recently noted, “to award qualified

immunity at the summary judgment stage,” when the

record reflects significant factual disputes, “would

signal absolute immunity for fear-based use of deadly

force, which we cannot accept.” Estate of Jones ex rel.

Jones v. City of Martinsburg, 961 F.3d 661, 673 (4th

8

The dissent makes much of the fact that Hawkins received a

blow to the head, but it cannot explain how being struck by

someone or something other than the suspect could justify the

intentional use of deadly force absent any indication that the

suspect poses an imminent and significant threat of injury. Even

when making “split-second judgments”in “tense, uncertain, and

rapidly evolving” circumstances, Graham, 490 U.S. at 397, officers

cannot ignore what they know. Hawkins may have believed his

“life [was] at stake” because of Banks, but on this record, the

reasonableness of that belief is for the jury to decide. To the extent

the dissent characterizes this ruling as saying anything else, it

misreads the message.

22a

Cir. 2020). Accordingly, we affirm the district court’s

order denying Hawkins’s motion for summary

judgment on Banks’s excessive force claim.

STRAS, Circuit Judge, dissenting.

There is no doubt that Officer Shelby Hawkins

ended up making a terrible mistake the night he shot

Johnny Banks. But it was difficult to know that at the

time, especially in light of the unpredictable and

dangerous circumstances he faced. All alone and called

to the scene of a suspected domestic disturbance,

Hawkins saw a truck parked in the driveway with its

hazard lights flashing. As he approached the house, he

heard a muffled “no, no, no” coming from inside. He

knocked on the door, which was at the end of a narrow

brick corridor, but there was no answer. Then, after

walking around outside and hearing a “loud” noise

near the back, he returned to the front, drew his gun,

and began kicking the door. Someone inside said

“[w]ho the fuck is this?” and opened the door with a

“little bit of force.” Standing there was Banks, who had

one hand on the wall “about head high.” Suddenly,

something hit Hawkins in the head. Though that

“something” did not come from Banks, Hawkins

reacted by “immediately” shooting him in the leg.

The question for us is whether Officer Hawkins

is entitled to qualified immunity. Whether his actions

that night were objectively reasonable is a close call,

and I tend to agree with the court that it is likely one

for a jury to decide. See Graham v. Connor, 490 U.S.

386, 396–97 (1989); Zubrod v. Hoch, 907 F.3d 568, 577

23a

(8th Cir. 2018). But qualified immunity applies

precisely when an officer is forced to make a hard

choice. See Sumpter v. Wayne County, 868 F.3d 473,

488 (6th Cir. 2017) (“Qualified immunity exists to give

public officials breathing room to make close calls

when the issue is not black-and-white.”). After all,

officials lose it only when they act “plainly

incompetent[ly]” or “knowingly violate the law.” Malley

v. Briggs, 475 U.S. 335, 341 (1986). And here, there is

no way to conclude that Hawkins did either. See Kisela

v. Hughes, 138 S. Ct. 1148, 1153 (2018) (per curiam)

(“Use of excessive force is an area of the law in which

the result depends very much on the facts of each case,

and thus police officers are entitled to qualified

immunity unless existing precedent squarely governs

the specific facts at issue.” (internal quotation marks

omitted)).

The court reaches a different conclusion, but

only by defining the constitutional right in question at

a high degree of generality. The Supreme Court has

told us over and over again that any “general[ized]”

right, such as the right to be free from the

unreasonable “us[e of] deadly force,” must be “clearly

established” in a “particularized . . . sense” to overcome

qualified immunity. Brosseau v. Haugen, 543 U.S. 194,

197–99 (2004) (per curiam) (quotation marks omitted).

It is not here.

The court says that Officer Hawkins should

have known that he could “not use deadly force against

a suspect who did not present an imminent threat of

death or serious injury, even if [he] felt attacked

24a

earlier and even if he believed the suspect had

previously posed a threat.” Ante at 11. Not only is this

formulation so broad that it lacks clarity, it also risks

sweeping too broadly. The proof is in the pudding:

there are cases that both fall within the court’s

supposed clearly established rule and do not involve

the violation of a constitutional right. If you are

wondering how both can be true, they cannot be.

One example is Ransom v. Grisafe, 790 F.3d 804

(8th Cir. 2015) (per curiam). There, officers received a

report of gunshots “fired from or near” a van. Id. at

807. When the officers arrived, they parked behind it

and heard what they thought were more gunshots. See

id. at 807–08. It turned out that it was just backfire

from the van and not gunfire from the driver or

someone hiding in “a [nearby] ditch,” but they shot at

the driver eight times when he emerged anyway. Id.

We held that qualified immunity was available

because, “[t]hough [the driver] had done nothing

wrong, . . . the officers’ fear of harm was reasonable.”

Id. at 811.

If Ransom sounds similar to this case, it is. In

both, officers used deadly force against a suspect who

did not present an imminent threat of death or serious

injury, so if the court’s proposed rule is as clearly

established as it says it is, then Ransom should have

come out the other way.9 Yet we held that, despite the

9

There are other examples, too. See, e.g., Corbitt v. Vickers, 929

F.3d 1304, 1308 (11th Cir. 2019) (involving an officer who shot at

a dog but accidentally hit a 10-year-old child who was complying

25a

fact that the driver posed no danger, the officers could

use deadly force because their “fear of harm was

reasonable.” Id. Based on Ransom, a reasonable officer

in Officer Hawkins’s shoes would not have had “fair

notice” that shooting Banks that night was

constitutionally excessive. Kisela, 138 S. Ct. at 1152

(quotation marks omitted).

The court, for its part, points to two other cases,

but neither involves “similar circumstances,” District

of Columbia v. Wesby, 138 S. Ct. 577, 591 (2018)

(quotation marks omitted), or “squarely governs the

specific facts at issue,” Kisela, 138 S. Ct. at 1153

(internal quotation marks omitted). The first case,

Ellison v. Lesher, involved two off-duty police officers

who entered a 67-year-old man’s apartment after he

gave “mouthy” answers. 796 F.3d 910, 913–14 (8th Cir.

2015). The officers ended up in a tussle with the man,

whom they shot and killed when he allegedly swung

his cane in a threatening manner. See id. at 914,

916–17. We denied qualified immunity because a

factual dispute existed over whether the man “was

[actually] holding his cane when he was shot.” Id.

with commands and posing no threat to the officer or others);

Mullins v. Cyranek, 805 F.3d 760, 763–64 (6th Cir. 2015)

(involving an officer who fired two shots at a suspect a few seconds

after that suspect was no longer a threat); McLenagan v. Karnes,

27 F.3d 1002, 1005 (4th Cir. 1994) (involving an officer who shot

an unarmed, handcuffed man after someone shouted “The man

has got a gun!” without specifying who). Each case involved a

grant of qualified immunity, even though every one of them falls

within the rule identified by the court.

26a

For at least two reasons, Ellison does not

involve “similar circumstances.” Wesby, 138 S. Ct. at

591 (quotation marks omitted). First, Officer Hawkins

was called to the scene of an uncertain and potentially

volatile situation: a domestic disturbance happening

behind closed doors. The officers in Ellison, by

contrast, knew exactly what they faced once they

walked by the apartment and saw a “relaxed” man

“sitting on his couch.” 796 F.3d at 913. Second, it is

undisputed that Hawkins was hit on the head right

after Banks used an expletive and opened the door

with a “little bit of force.”10 Despite these differences,

the court’s position is that Ellison is similar because

“[Hawkins] shot [Banks] while he was simply standing

in his [home] and holding no [weapon].” Ante at 13

(brackets in original) (quoting Ellison, 796 F.3d at

917). This statement, even if literally true, just frames

the issue in a way that ignores the differences.

The other of the court’s two cases, Nance v.

Sammis, is so far afield that Banks did not even bother

to cite it. 586 F.3d 604 (8th Cir. 2009). It involved a

fatal shooting of a 12-year-old boy carrying a toy gun.

See id. at 607. Viewing the facts in the light most

favorable to the plaintiffs, we “presume[d] that the

officers approached [the boy] without identifying

10

Although the blow did not come from Banks, the fact that

Officer Hawkins was hit on the head by something is undisputed,

and there is no question that it immediately preceded the

gunshot, making it “material” to “the outcome” under any

definition of that word. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986) (explaining that a “material” fact “might affect the

outcome of the suit under the governing law”).

27a

themselves as police officers, that the toy gun was

tucked in [his] pants throughout the entire

confrontation, that [the officers] only said to drop the

gun and get on the ground, and that [he] may have

raised his hand or hands while trying to get to the

ground before [an officer] shot him twice without

warning.” Id. at 610–11.

As this summary should make obvious, Nance is

a completely different case. The only connection the

court can draw, in fact, is that the officers there “were

also responding to a ‘dangerous situation’ when one of

them shot the suspect.” Ante at 13 (quoting Nance, 586

F.3d at 611). It is true that both situations may have

been dangerous and ended in a shooting, but the

similarities end there. In Nance, the officers were

never struck by anything, much less in the head, and

they had the opportunity to observe what the boy was

doing the entire time. See 586 F.3d at 607.

For these same reasons, we are also not

confronted with “the rare[,] obvious case” in which the

unlawfulness of Officer Hawkins’s conduct is so clear

that “a body of relevant case law” is unnecessary.

Wesby, 138 S. Ct. at 590 (internal quotation marks

omitted). After receiving a blow to the head, he had to

make “[a] split-second judgment[]—in circumstances

that [were] tense, uncertain, and rapidly evolving”—to

ensure his own safety. Graham, 490 U.S. at 397. It is

true that he ended up making the wrong call when he

shot an unarmed man, but it is not fair to say that, at

the time, his choice was obviously wrong. See id. at 396

(“The ‘reasonableness’ of a particular use of force must

28a

be judged from the perspective of a reasonable officer

on the scene, rather than with the 20/20 vision of

hindsight.”).

Today’s decision does more than just expose

Officer Hawkins to liability. It stands as a warning to

other officers who may need to make split-second

decisions to protect their own safety. The message

could not be clearer: even in the absence of a clearly

controlling legal rule, think twice before acting,

regardless of whether your own life is at stake,

because a court may step in later and second-guess

your decision. See Malley, 475 U.S. at 341. We can

reasonably disagree about whether qualified immunity

should exist, see Baxter v. Bracey, 140 S. Ct. 1862,

1864–65 (2020) (Thomas, J., dissenting from the denial

of certiorari), but there is no question that

circumstances like these are why it does, see Winzer v.

Kaufman County, 916 F.3d 464, 482 (5th Cir. 2019)

(Clement, J., dissenting in part). I respectfully dissent.

29a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

JOHNNY BANKS

v.

PLAINTIFF

CASE NO. 4:18-CV-00259 BSM

SHELBY HAWKINS;

CITY OF SHANNON HILLS

DEFENDANTS

ORDER

Defendants’ motion for summary judgment [Doc.

No. 44] is granted on Johnny Banks’s equal protection,

negligent hiring, failure to train, and ratification

claims, and denied on Banks’s excessive force claim.

Banks’s cross-motion for summary judgment [Doc. No.

52] is denied.

I. BACKGROUND

Johnny Banks and his wife, Vanessa, had a

heated argument in their home over an anonymous

letter she received accusing him of infidelity, and

Vanessa called 911. Defs. Statement of Facts (“Defs.

F.”) ¶¶ 1–2, 10, 12, Doc. No. 49; Pl.’s Statement of

Facts (“Pl. F.”) ¶¶ 2–3, 5-6, Doc. No. 51. Although

Vanessa failed to speak to the 911 operator, the

operator could hear yelling in the background. Defs. F.

30a

¶¶ 14–16; Pl. F. ¶ 8. The City of Shannon Hills Police

Officer Shelby Hawkins was dispatched to the Banks’s

home to investigate a domestic disturbance and a 911

hang-up call. Defs. F. ¶¶ 17–18; Pl. F. ¶ 8.

Hawkins knocked on the front door and

announced his presence multiple times, but his knocks

went unanswered. Defs. F. ¶ 42; Pl. F. ¶ 13. Hawkins

heard noises and what he described as muffled “no’s.”

Defs. F. ¶¶ 36–37, 39; Pl. F. ¶¶ 14–15. Hawkins pulled

his gun and began kicking the door. Defs. F. ¶¶ 48–49;

Pl. F. ¶ 17. When Banks opened the door, something

hit Hawkins on the head, and Hawkins shot Banks in

the leg. Defs. F. ¶¶ 55, 62, 73; Pl. F. ¶¶ 18, 23–26, 35.

Banks alleges that Hawkins and the City of

Shannon Hills violated his right to be free from

excessive force and his right to equal protection. Banks

alleges that the City negligently hired and failed to

train Hawkins, and that the City ratified Hawkins’s

actions. Banks, Hawkins and the City move for

summary judgment.

II. LEGAL STANDARD

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

31a

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.

“If a party fails to properly support an assertion

of fact or fails to properly address another party’s

assertion of fact as required by Rule 56(c), the court

may consider the fact undisputed for purposes of the

motion.” Fed. R. Civ. P. 56(e)(2). 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), but a plaintiff’s own selfserving, conclusory allegations in an affidavit or

deposition, standing alone, are insufficient to defeat

summary judgment. Haas v. Kelly Services, 409 F.3d

1030, 1034 (8th Cir. 2005). Finally, 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. Excessive Force

All parties’ motions for summary judgment are

denied as to Banks’s excessive force claim because

there are genuine disputes of fact that must be

resolved.

In determining whether an officer’s use of force

is constitutional, one must determine whether the

force was objectively reasonable from the perspective

of an officer on the scene. See Loch v. City of Litchfield,

32a

689 F.3d 961, 965 (8th Cir. 2012) (citing Graham v.

Connor, 490 U.S. 386, 396–97 (1989)). In making this

determination, courts consider the severity of the

crime at issue, whether the suspect posed an

immediate threat to the officer or others, and whether

the suspect resisted or attempted to evade arrest. See

id.

The parties present conflicting versions of the

events that led Hawkins to shoot Banks. They dispute

the state of affairs outside the Banks’s residence when

Hawkins arrived. Defendants claim Hawkins heard

multiple muffled screams, which led him to believe a

domestic disturbance was taking place inside. Defs. F.

¶ 42. Banks asserts that Hawkins heard a noise, but

not a voice, before knocking on the door. Dep. Hawkins

at 56, 63.

The parties also dispute Banks’s demeanor

when he opened the door. Defendants claim that

Banks forcefully opened the door with his arm raised

and cursed at Hawkins right before Hawkins was

struck in the head by a metal sign hanging above the

door. Defs. F. ¶¶ 42–45. Defendants assert that, when

Hawkins was struck, he reflexively shot Banks out of

fear for his safety. Id. Banks claims that all he did was

open the door and that Hawkins instantaneously shot

him. Pl. F. ¶ 18.

These conflicting versions of events create a

factual dispute that may support different outcomes.

Summary judgment is therefore inappropriate.

33a

B. Equal Protection

Defendants’ motion for summary judgment is

granted and Banks’s motion for summary judgment is

denied as to Banks’s claim that Hawkins violated his

right to equal protection under the law.

Banks, who is black, has offered nothing more

than a conclusory assertion that Hawkins, who is

white, shot him due to his race. Am. Compl. ¶¶ 63–65;

see Jenkins, 540 F.3d at 750. This is not enough to

support an equal protection violation. See Vill. of

Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S.

252, 268–71 (1977) (holding that defendant acted with

a discriminatory purpose and his actions had a

discriminatory effect); see also Johnson v. Crooks, 326

F.3d 995, 999–1000 (8th Cir. 2003) (holding that the

district court erred in failing to dismiss plaintiff’s

equal protection claim when she offered no evidence

that the officer only stopped black drivers). Because

Banks has offered no evidence supporting his equal

protection claim, defendants’ motion for summary

judgment is granted and Banks’s motion for summary

judgment is denied.

C. Qualified Immunity

Qualified immunity is denied on Hawkins’s

excessive force claim. Whether Hawkins is immune

from Banks’s equal protection claim is not addressed

because summary judgment has been granted on that

claim.

34a

Police officers are immune from suit unless they

violate a clearly established right. See Estate of

Morgan v. Cook, 686 F.3d 494, 496 (8th Cir. 2012).

Summary judgment is denied on Banks’s individual

capacity claim against Hawkins because factual

disputes preclude findings of both qualified immunity

and summary judgment. Evaluating a claim of

qualified immunity requires a determination of

whether the facts shown by the plaintiff make out a

violation of a clearly established constitutional or

statutory right. See Cook, 686 F.3d at 496. Qualified

immunity is inappropriate when a genuine dispute

exists concerning facts material to the issue of

qualified immunity. See Pace v. City of Des Moines, 201

F.3d 1050, 1056 (8th Cir. 2000).

Individuals have a right to be free from

excessive force if a reasonable officer could not believe

that the individual posed a serious threat to the officer

or others. Compare Ellison v. Lesher, 796 F.3d 910,

917 (8th Cir. 2015) (holding that an officer did not

have qualified immunity for shooting an elderly man

in his home when her only rationale for shooting was

that he charged at her while swinging a cane), with

Mullenix v. Luna, 136 S. Ct. 305, 312 (2015) (holding

that an officer had qualified immunity for shooting a

suspect fleeing arrest who was driving over 100 mph,

possibly drunk, had threatened to kill officers pursuing

him, and was driving towards another officer).

Whether Hawkins reasonably thought Banks

was a serious and immediate threat is in dispute. Defs.

F. ¶¶ 42–45; Pl. F. ¶¶ 18, 31. When the parties dispute

35a

the officer’s reasonableness in using force, qualified

immunity for the officer’s use of force is inappropriate.

See Craighead v. Lee, 399 F.3d 954, 963 (8th Cir.

2005).

D. Negligent Hiring

Defendants’ motion for summary judgment is

granted and Banks’s motion for summary judgment is

denied on Banks’s negligent hiring claim against the

City because there is no evidence supporting this

claim.

A city is liable for its employee’s

unconstitutional conduct under a negligent hiring

theory if adequate review of an applicant’s background

would have led reasonable policymakers to conclude

that hiring the applicant would lead to a violation of a

federal right, and that violation actually occurs. See

Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S.

397, 411 (1997); see also Morris v. Crawford Cty., 299

F.3d 919, 924–25 (8th Cir. 2002). Banks argues that

the City negligently hired Hawkins because the chief

of police failed to personally review Hawkins’s

personnel file from his previous employer, another

police department. Dep. Allen Spears at 19–22. Banks

does not argue that the chief would have concluded

that Hawkins was likely to violate anyone’s rights had

the chief read the file. See Brown, 520 U.S. at 411. In

response, the City presents proof that it took the

following steps to assure that Hawkins would be a

competent officer: (1) it performed a background

investigation of Hawkins; (2) it interviewed Hawkins;

36a

(3) it confirmed Hawkins’s psychological examination;

and (4) it confirmed his police training certifications.

Defs. Br. Supp. Summ. J. at 24–25. Banks does not

dispute these contentions.

E. Failure to Train

Defendants’ motion for summary judgment is

granted and Banks’s motion for summary judgment is

denied on Banks’s failure to train claim against the

City. To succeed on his failure to train claim, Banks

must show that his rights were violated as a result of

Hawkins’s deliberate indifference, and that Hawkins’s

deliberate indifference was a direct result of the City’s

failure to train Hawkins. See Andrews v. Fowler, 98

F.3d 1069, 1076–77 (8th Cir. 1996) (citing City of

Canton v. Harris, 489 U.S. 378, 389–90 (1989)).

Training policies are deliberately indifferent if the

need for more or different training is so obvious that a

reasonable policymaker could conclude that a violation

of a federal right would result. See id. A pattern of

similar constitutional violations by untrained

employees is usually necessary to show deliberate

indifference. See Connick v. Thompson, 563 U.S. 51,

62–64 (2011) (holding that four overturned convictions

based on Brady violations statewide did not constitute

a pattern sufficient to make a city liable for not

training its prosecutors on Brady obligations).

It is undisputed that Hawkins was not trained

on how to conduct forcible entries. Pl.’s Br. Supp.

Summ. J. at 34; Defs. Resp. to Pl’s F. at 27, Doc. No.

62. The lack of specific training, alone, does not create

37a

liability for the City. Nothing indicates the City’s

officers engaged in a pattern of using excessive force in

forcible entries. The City was therefore not

deliberately indifferent to a demonstrated risk that its

officers lacked adequate training.

F. Ratification

Defendants’ motion for summary judgment is

granted and Banks’s motion for summary judgment is

denied on Banks’s claim that the City ratified

Hawkins’s conduct.

The City may be held liable for Hawkins’s

actions if the City’s final policymakers approved

Hawkins’s conduct and his basis for his actions. See

Soltesz v. Rushmore Plaza Civic Center, 847 F.3d 941,

947 (8th Cir. 2017) (citing City of St. Louis v.

Praprotnik, 485 U.S. 112, 127 (1988)). In Arkansas,

the city council and mayor are the final policymakers

for cities. Ark. Code Ann. § 14-52-101 (2019). Nothing

indicates the city council or mayor was aware of

Hawkins’s conduct, much less that either approved of

his conduct or the reasons why he took those actions.

Therefore, the City’s final policymakers did not ratify

Hawkins’s conduct or rationale for his actions.

IV. CONCLUSION

For the foregoing reasons, defendants’ motion

for summary judgment [Doc. No. 44] is granted as to

Banks’s equal protection, negligent hiring, failure to

train, and ratification claims, and denied as to Banks’s

38a

excessive force claim. Banks’s cross-motion for

summary judgment [Doc. No. 52] is denied.

2019.

IT IS SO ORDERED this 26th day of September

/s/

UNITED STATES DISTRICT JUDGE

39a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 19-3092

Johnny Banks

Appellee

v.

Shelby Hawkins

Appellant

City of Shannon Hills

Appeal from U.S. District Court for the Eastern

District of Arkansas - Little Rock

(4:18-cv-00259-BSM)

ORDER

The petition for rehearing en banc is denied.

The petition for rehearing by the panel is also denied.

July 02, 2021

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

________________________

/s/ Michael E. Gans

40a