Connie Berry, Individually v. Brandon Davis, an individual; The City of Fort Smith

United States Court of Appeals
For the Eighth Circuit
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No. 13-3610
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Connie Berry, Individually and as Administrator of the Estate of Eric W. Berry; J.
W. Berry, Co-administrator of the estate of Eric Berry
lllllllllllllllllllll Plaintiffs - Appellees
v.
Brandon Davis, an individual; The City of Fort Smith
lllllllllllllllllllll Defendants - Appellants
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Appeal from United States District Court
for the Western District of Arkansas - Ft. Smith
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Submitted: August 13, 2014
Filed: August 18, 2014
[Unpublished]
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Before BYE, SMITH, and KELLY, Circuit Judges.
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PER CURIAM.
In this 42 U.S.C. § 1983 action involving a Fourth Amendment claim of
excessive use of force, Brandon Davis and the City of Fort Smith, Arkansas, appeal

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the district court’s 1 interlocutory order denying their motion for summary judgment
based on qualified immunity. Upon careful de novo review, we agree with the district
court that the existence of a genuine issue of material fact precluded qualified
immunity. See Nance v. Sammis, 586 F.3d 604, 609 (8th Cir. 2009) (denial of
qualified immunity is reviewed de novo; denial of qualified immunity will be affirmed
if genuine issue of material fact exists as to whether reasonable officer could have
believed his actions were lawful); see also Plumhoff v. Rickard, 134 S. Ct. 2012,
2019-20 (2014) (court of appeals had interlocutory jurisdiction where officers
contended their conduct did not violate Fourth Amendment and, in any event, did not
violate clearly established law). Accordingly, we affirm.
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1The Honorable Robert T. Dawson, United States District Judge for the Western
District of Arkansas.
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