Kameron Evans; Noah Evans v. Cabot School District; Tony Thurman, Superintendent; Henry Hawkins, Principal

United States Court of Appeals
For the Eighth Circuit
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No. 22-3290
___________________________
Kameron Evans; Noah Evans
Plaintiffs - Appellees
v.
Cabot School District; Tony Thurman, Superintendent; Henry Hawkins, Principal
Defendants
John Dodd, Individually; Brittany Taunton, Individually
Defendants - Appellants
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Central
____________
Submitted: April 10, 2024
Filed: August 15, 2024
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Before LOKEN, MELLOY, and KOBES, Circuit Judges.
____________
MELLOY, Circuit Judge.
Two high school brothers were arrested for disorderly conduct after wearing
tactical vests to school. After an Arkansas state court acquitted the brothers, they
brought § 1983 and state tort claims against two school resource officers. The

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officers moved for summary judgment and asserted they were entitled to qualified
immunity, which the district court denied. The officers appeal. We affirm in part and
reverse in part.
I.
Kameron and Noah Evans (collectively, the “Evanses”) started attending
public school in Cabot, Arkansas when they were 13. Prior to that, the Evanses lived
in Cambodia, where they were born. Kameron and Noah have brown skin and allege
that, since attending the Cabot School District, they have been bullied and subjected
to near-daily name-calling because of their race and ethnicity. For example, the
Evanses have been called “terrorists” and told to show their green cards or “go back
to where they came from.” In eighth grade, students spread a false rumor about
Kameron based on a video of a slim, brown-skinned person burning a flag. As a
result, a group of students gathered and threatened Kameron to the point that he had
to be escorted to class by a police officer for multiple days following the incident.
When the Evanses reported bullying to school officials, the brothers faced more
retaliatory bullying from students. They allege the school officials were
unresponsive.
During the 2017–18 school year, Kameron openly supported the Black Lives
Matter movement and Colin Kaepernick’s decision to kneel during the singing of
the National Anthem at football games. Although Kameron himself did not kneel
during the National Anthem, he expressed his support on social media. As a result,
students again made threats to Kameron. When one of Kameron’s instructors learned
of these threats, the instructor reported them to the principal because he was afraid
for Kameron’s safety.
That same school year, the Evanses were both cadets in the Cabot High School
Air Force Junior Reserve Officers’ Training Corps (“ROTC”). The Evanses
participated in ROTC in part because they were enthusiastic about the military and
military-related things, including war-related games. The Evanses would play these

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games with other kids using Airsoft guns, which are plastic toy guns that look real
and shoot soft plastic pellets. Airsoft guns and games are geared toward both adults
and children.
Defendants are Officers John Dodd and Brittany Taunton (collectively,
“Officers”). Officers Dodd and Taunton were school resource officers at Cabot High
School during the 2017–18 school year. School resource officers are members of the
Cabot Police Department who are assigned to provide security to high schools. The
Cabot School District partners with the City of Cabot to employ two-to-four school
resource officers each year and cover a portion of the officers’ salaries. The Officers
were familiar with the Evanses and had spoken with them on occasions prior to the
events giving rise to the instant case.
On February 13, 2018, Kameron and Noah both wore military-style tactical
vests to school. Kameron’s vest had a “U.S. Army” patch on it. The parties agree
that the vests were not real tactical or military vests, nor were they bulletproof.
Kameron’s vest was mostly obscured under a large winter coat he was wearing.
Noah did not have his coat on over his vest. Kameron also carried a green duffle bag
that he used to carry his ROTC equipment. The Officers describe the bag as a
“military-style duffle bag,” but the Evanses dispute that the duffle bag was military-
style. Kameron alleges that he regularly used the bag to carry his marching band and
ROTC equipment, in addition to his Airsoft war game equipment.
Cabot High School’s assistant principal, Adam Koehler, testified that the
Evanses’ vests did not violate the Cabot High School dress code. Indeed, the parties
agree that prior to the Evanses wearing their vests to school, at least two white
students had worn similar tactical-style vests to school and were not disciplined. One
of these students wore a full military uniform including a bullet-proof vest, a nerf
gun, and a helmet.
On the day the Evanses wore their vests to school, Cabot High School was
screening a video on what to expect and how to respond in the event of an active

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shooter at school. School officials had notified students and parents a week prior,
alerting them to the screening. Kameron and Noah’s mother received a robocall
informing her of the video, but the brothers maintain they were unaware of the
screening that was taking place that day. Kameron asserts that he did not know the
screening was taking place until it started playing in his second-period class. Noah
says he was unaware of the video until after he was arrested.
After Kameron’s first period, two students in the class approached the teacher,
Ms. Heather Nelson McGhee, to tell her that Kameron was wearing a tactical vest
underneath his coat. According to a school incident report written by of one of the
students, the students were irritated that Kameron was wearing a vest with military
patches affixed to it, including a U.S. Army patch. The Evanses argue that the two
students reported Kameron’s vest “because they were mad at him for calling them
racist.” It is unclear from the facts whether the two students had safety concerns in
mind when they reported Kameron, but Ms. McGhee testified that the two students
appeared nervous to tell her about the vest and waited for Kameron to leave before
they told her. Based on the students’ report, Ms. McGhee immediately contacted Mr.
Koehler out of concern.
After receiving Ms. McGhee’s call, Mr. Koehler contacted Officer Taunton.
Mr. Koehler then pulled Kameron from class to discuss his vest and bag. In the
hallway, Officer Dodd and Officer Taunton met Mr. Koehler and Kameron. Both
Officers’ body cameras recorded the interaction between Mr. Koehler, the Officers,
and Kameron. In the school hallway, Officer Dodd asked Kameron to open his coat
so he could see the vest. Officer Dodd explained to Kameron that if they thought a
student was wearing a Kevlar vest to school, they could infer the student was going
to do something wrong. Officer Dodd then explained that, even though he personally
knew Kameron, they needed to search his clothes and bag.
Officer Dodd asked Kameron to take off his coat and vest, which Kameron
willingly did. Mr. Koehler searched Kameron’s person, while the Officers searched
the vest. Mr. Koehler found nothing, and the Officers found no weapons, ballistic

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panels, or plates in the vest. Mr. Koehler and the Officers then handed the vest and
coat back to Kameron, which Kameron held onto but did not put back on. Mr.
Koehler then searched Kameron’s green duffle bag. While Mr. Koehler searched the
bag, the Officers asked if Kameron could understand how carrying the duffle bag
and wearing his vest on the same day as an active-shooter training could cause alarm,
and Kameron agreed that he saw how it could. Officer Taunton clarified to Kameron
that there was “nothing wrong, having a bag was a great idea to put all [his] stuff in
it,” just “not all of it together,” indicating wearing the vest and carrying the bag. As
Mr. Koehler searched Kameron’s duffle bag, he discovered a cartridge of Airsoft
pellets. When Mr. Koehler found those, Kameron stated that he did not know why
the pellets were in his bag and that he must have left them in there after playing an
Airsoft game a couple days prior. Kameron explained that, had he known about the
pellets, he would not have brought them to school.
While searching Kameron and his belongings, the Officers engaged him in
casual conversation, for example, as Kameron was taking off his vest, Officer
Taunton stated that she “like[d] the buckles on the side.” When Mr. Koehler took
snacks out of Kameron’s duffle bag, Officer Taunton jokingly asked Kameron why
he had not kept them in the many pockets of his vest and then, laughing, she repeated
that it “was kind of a bad day” to wear the vest. During the entire search of
Kameron’s duffel bag and vest, he was calm, respectful, and cooperative. Whenever
the Officers or Mr. Koehler asked Kameron a question, he was polite and responsive.
At the conclusion of the search, Officer Dodd asked Officer Taunton and Mr.
Koehler if they were okay with Kameron “walking around with a tactical vest at
school.” Though it is unclear whether Officer Dodd was referring to Kameron
walking with the vest in his duffle bag or on his body, Mr. Koehler was unsure how
to proceed, so they decided to all walk across Cabot High School’s outdoor campus
to speak with the principal. In the video, Kameron quietly walks in front of Mr.
Koehler and the Officers as they walk to the principal’s office.

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Mr. Koehler and the Officers met with the principal, Henry Hawkins, while
Kameron sat in a waiting area outside the office. In her police report, Officer
Taunton wrote that, during their meeting, they “discussed what the school wanted
Cabot Police to do,” and that Principal Hawkins “advised he wanted Cabot Police to
arrest [Kameron] and charge him” because he had “alarmed the students and staff
with his actions.” The Evanses allege that Officer Taunton turned off her camera
over the course of six minutes while the Officers were meeting with Principal
Hawkins discussing how to respond. The Evanses allege that during the time when
the camera was turned off, Principal Hawkins made the decision to arrest Kameron,
and the Officers were following his orders. Additionally, both Officers testified that
Principal Hawkins made the decision to arrest Kameron and Noah.
After their meeting, Officer Taunton came out of Principal Hawkins’ office
and handcuffed Kameron in the waiting room while Officer Dodd told him he was
being arrested. The Officers walked Kameron out of the school building in
handcuffs, and Officer Taunton transported him to the Cabot Police Department.
Once at the police station, Kameron requested his mother be present during
questioning. Kameron’s mother, Kerri Evans, later arrived at the police station, and
thereafter, Officer Taunton issued a juvenile citation for disorderly conduct and
released Kameron. Ms. Evans testified that Officer Taunton told her Kameron was
arrested because Principal Hawkins wanted him arrested and because Officer
Taunton believed she had to follow Principal Hawkins’ instructions.
While at the police station, Ms. Evans informed Officer Taunton that Noah
was also wearing a tactical vest. Officer Taunton then notified Officer Dodd back at
the high school, and he and Mr. Koehler removed Noah from class. The Officers
present no facts that any students or teachers complained about Noah’s vest or that
his vest caused any disruption. Officer Dodd and Mr. Koehler searched and
interrogated Noah. During the search, Officer Dodd and Mr. Koehler did not find
any weapons, ballistic panels, pellets, or plates.

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While searching through Noah’s backpack and vest, Mr. Koehler was notified
via his walkie talkie that Ms. Evans had arrived at the school. Ms. Evans was there
to pick up Noah, and the Evanses allege that the Officers and school officials
prevented her from doing so. Before Officer Taunton arrested Noah, Officer Dodd
explained that they had to arrest him because he could not wear a tactical vest to
school and also because they had arrested another student, alluding to Kameron, and
needed to treat students the same. Thereafter, Noah was taken to the police station
and charged with disorderly conduct.
Later that day, Ms. Evans and Kameron returned to Cabot High School to
meet with Principal Hawkins about the arrests. The Evanses allege that Principal
Hawkins told them that, regarding Kameron’s Black Lives Matter and Colin
Kaepernick posts, he could not “walk around CHS after posting stuff like that and
expect anything different.” The Evanses allege that Principal Hawkins further called
Kameron’s content supporting Black Lives Matter “racist social media posts” and
“not right.”
Kameron and Noah were each suspended from school for five days, and upon
returning to school, Kameron was moved to an alternative learning environment
instead of being allowed to return to regular school. Ms. Evans ultimately withdrew
both Kameron and Noah and decided to homeschool them, which they allege was
out of fear for their safety. Ms. Evans also contacted Cabot School District’s
superintendent alleging that Principal Hawkins had retaliated against Kameron for
supporting Black Lives Matter and Colin Kaepernick. Ms. Evans also demanded the
superintendent drop charges against Kameron and Noah. According to the Evanses,
both the superintendent and Principal Hawkins claimed that, because Officer Dodd
made the decision to arrest and prosecute, the Cabot School District lacked the
ability to drop charges. The case proceeded to trial, and after a bench trial, the state
court found Kameron and Noah were not guilty of violating Arkansas’ disorderly
conduct statute, Ark. Code Ann. § 5-71-207.

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Thereafter, the Evanses brought this § 1983 lawsuit against both Officers
Dodd and Taunton in their individual capacities.1 The Evanses alleged that the
Officers lacked probable cause and used excessive force in violation of their Fourth,
Fifth, and Fourteenth Amendment rights. The Evanses also alleged the Officers
engaged in malicious prosecution, abuse of process, and false arrest under Arkansas
law. The Officers moved for summary judgment on all charges based on qualified
immunity. The district court denied the motions, and the Officers now appeal. We
affirm in part and reverse in part.
II.
The Officers argue that the district court erred in denying their motions for
summary judgment and that they are entitled to qualified immunity. The Court
reviews the denial of summary judgment based on qualified immunity de novo,
viewing the record in the light most favorable to the Evanses and drawing all
inferences in their favor. Thurairajah v. City of Fort Smith, 925 F.3d 979, 982 (8th
Cir. 2019). On appeal from an order denying qualified immunity, the Court may
review issues of law, but we lack jurisdiction to review factual disputes or “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.” Thompson v. Murray, 800 F.3d 979,
982–83 (8th Cir. 2015). Qualified immunity will shield the Officers “from legal
liability unless: (1) [they] violated a constitutional right, and (2) that constitutional
right was clearly established so that a reasonable officer would know of the right at
the time of the alleged violation.” Thurairajah, 925 F.3d at 982.
The Officers contend they are entitled to qualified immunity on the Evanses’
Fourth Amendment unlawful arrest claim because they had probable cause, or at the
very least arguable probable cause, to arrest the Evanses for disorderly conduct
1 The Evanses also asserted claims against Principal Hawkins and the
superintendent, but this appeal concerns only Officers Dodd and Taunton.

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under Arkansas Code § 5-71-207.2 “A warrantless arrest is consistent with the Fourth
Amendment if it is supported by probable cause, and an officer is entitled to qualified
immunity if there is at least ‘arguable probable cause.’” Borgman v. Kedley, 646
F.3d 518, 522–23 (8th Cir. 2011) (citation omitted).
“Probable cause exists when the totality of circumstances at the time of arrest
would lead a reasonable person to think the defendant committed or is committing a
crime.” Webster v. Westlake, 41 F.4th 1004, 1010 (8th Cir. 2022). “To determine
whether an officer had probable cause for an arrest, ‘[the Court] examine[s] the
events leading up to the arrest, and then decide[s] whether these historical facts,
viewed from the standpoint of an objectively reasonable police officer, amount to
probable cause.’” District of Columbia v. Wesby, 583 U.S. 48, 56–57 (2018)
(citations omitted) (cleaned up).
The Officers begin by arguing they had “probable cause to arrest Kameron
and Noah for disorderly conduct based on what they wore to school on that particular
day.” The Arkansas disorderly conduct statute states in part:
(a) A person commits the offense of disorderly conduct if, with the
purpose to cause public inconvenience, annoyance, or alarm or
recklessly creating a risk of public inconvenience, annoyance, or alarm,
he or she:
(1) Engages in fighting or in violent, threatening, or tumultuous
behavior;
2 The Arkansas state court issued an order after a bench trial and stated that
“[t]he police had ample information to charge ‘Disorder[ly] Conduct’ under
probable cause.” This issue, however, was never litigated before the court, and
therefore, it was a gratuitous statement with no force in the instant case. Passmore
v. Astrue, 533 F.3d 658, 661 (8th Cir. 2008) (explaining that “[a] judicial comment
made while delivering a judicial opinion . . . is unnecessary to the decision in the
case and therefore not precedential”).

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. . . .
(4) Disrupts or disturbs any lawful assembly or meeting of
persons;
Ark. Code Ann. § 5-71-207.
The Officers argue that the Evanses purposely or, at the very least, recklessly
caused alarm by wearing tactical vests on a day when the school was screening an
active-shooter video. The Officers do not expressly identify which of the enumerated
disorderly acts the Evanses allegedly engaged in, though they seem to contend that
the brothers’ conduct disrupted a lawful assembly. Id. § 5-71-207(a)(4). For their
part, the Evanses deny that they even knew about the active-shooter video.
Regardless of whether the Evanses purposely or recklessly wore their vests to
school, there was no disruption of a lawful assembly. The Officers present no
evidence that the Evanses were disruptive. The Officers were only aware of Noah’s
vest because Ms. Evans informed them, and Kameron’s teacher would not have
known about the vest under his coat absent two students quietly bringing it to her
attention after class. Officers argue that because two students reported Kameron’s
vest, the Evanses disrupted a lawful assembly. But students tell on other students all
the time. Moreover, Ms. McGhee testified that Kameron’s vest did not cause
disruption in her class or during passing periods. The Officers also stated that the
Evanses were respectful during their search and interrogation. In fact, Officer Dodd
considered sending Kameron back to class with his vest.
Cases interpreting Arkansas’ disorderly conduct statute further support the
conclusion that the Officers were not objectively reasonable in arresting the Evanses
for disrupting a lawful assembly. For example, in Holloway v. State, a man was
convicted of disrupting a lawful assembly after attending a basketball game between
two rival high school teams where the man threw soda, hamburgers, and French fries
onto the floor of the gymnasium and swore and yelled at a game official. No. CA
CR 88-78, 1988 WL 113858, at *1–2 (Ark. Ct. App. Oct. 26, 1988). Although there
was no evidence that spectators left on account of his behavior, the Arkansas Court
of Appeals nonetheless held that the defendant had disrupted a lawful assembly

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because “the game had to be stopped to clean up the spilled soft-drink.” Id. at *2.
Likewise, the Arkansas Supreme Court opined in dicta that a loud confrontation
between defendants and a pastor in the middle of church services disrupted a lawful
assembly, citing as authority disorderly conduct cases that predated Arkansas Code
§ 5-71-207. State v. Kimbrough, 578 S.W.2d 26, 27–28 (Ark. 1979). In both cases,
the defendants’ conduct interrupted an organized group gathering. No similar
circumstances are present here. Accordingly, based on the totality of the
circumstances and the facts viewed in the light most favorable to the Evanses, we
cannot say as a matter of law that the Officers had probable cause to arrest both
Kameron and Noah for disrupting a lawful assembly.
The Officers next argue they are entitled to qualified immunity because they
had arguable probable cause to arrest the Evanses. “In a case involving an arrest
without probable cause, officers have qualified immunity if they ‘reasonably but
mistakenly conclude[d] that probable cause [wa]s present.’” Bell v. Neukirch, 979
F.3d 594, 607 (8th Cir. 2020) (quoting Wesby, 583 U.S. at 49) (alterations in
original). Where an officer argues they had arguable probable cause, the governing
standard is “whether the officer should have known that the arrest violated plaintiff’s
clearly established right.” Walker v. City of Pine Bluff, 414 F.3d 989, 992 (8th Cir.
2005) (citation omitted). “Clearly established” means that “[t]he precedent must be
clear enough that every reasonable official would interpret it to establish the
particular rule the plaintiff seeks to apply.” Brown v. City of St. Louis, 40 F.4th 895,
899 (8th Cir. 2022) (citing Wesby, 583 U.S. at 63). “While we are not to define the
issue ‘at a high level of generality,’ Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011),
‘[a] general constitutional rule already identified in the decisional law may apply
with obvious clarity to the specific conduct in question, even though the very action
in question has not previously been held unlawful.’” Nieters v. Holtan, 83 F.4th
1099, 1109 (8th Cir. 2023), cert. denied, 144 S. Ct. 1349 (2024) (citations omitted).
In February 2018, it was clearly established “that a warrantless arrest, unsupported
by probable cause, violates the Fourth Amendment.” Thurairajah, 925 F.3d at 984
(citations omitted).

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The Officers argue they had arguable probable cause to believe the Evanses
wore tactical vests to school “with the purpose to communicate a threat at school in
a way that would cause alarm and/or disrupt a lawful assembly,” in violation of
sections 5-71-207(a)(1) and (a)(4). Officers argue that the Evanses’ attire alone
disrupted a lawful assembly and support their contention by citing McIntosh, where
we found the defendant’s attire contributed to a disorderly conduct violation.
McIntosh v. Ark. Republican Party-Frank White Election Comm., 856 F.2d 1185,
1186 (8th Cir. 1988). But there, we found that the officers’ decision to arrest the
plaintiff rested on more than just the defendant’s “outlandish and comical dress.” Id.
Indeed, in McIntosh, the defendant had attempted to interrupt a private fundraising
banquet attended by then–Vice President George H.W. Bush. Id. We determined that
the officers had probable cause to believe that the defendant was about to engage in
disorderly conduct because he openly “intended to disrupt the banquet, refused to
heed the officers’ warning, and was attracting attention and creating a disturbance
by his dress, his agitation, and his raised voice.” Id. at 1187. Similar facts are absent
here. The Evanses did not disrupt class, and they did not disrupt passing period. They
politely and respectfully followed the Officers’ instructions. They did not raise their
voices and did not create a disturbance through their dress. Moreover, their dress did
not violate the Cabot High School dress code, and the school had previously allowed
other students to wear tactical vests.
The Officers also allege they had arguable probable cause to believe the
Evanses engaged in threatening behavior. Although the Officers do not expressly
allege what threatening behavior the Evanses engaged in, we can presume that the
threatening behavior was wearing a tactical-style vest on a day that Cabot High
School was screening a school shooter training video. Cases show that threatening
physical behavior constitutes disorderly conduct. For example, one court found that
a patient who “engage[d] in the conduct of hitting the nurse and threatening her and
the doctor’s lives to create public inconvenience, annoyance or alarm” violated the
Arkansas disorderly conduct statute. M.T. v. State, 350 S.W.3d 792, 796 (Ark. 2009).
Likewise, another court concluded that “erratic behavior, cursing, flailing . . . arms,

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and [a violent] demeanor” may amount to threatening behavior. Johnson v. State, 37
S.W.3d 191, 195 (Ark. 2001).
By contrast, another court denied qualified immunity on a motion for
summary judgment where an officer arrested a Walmart customer he believed was
engaging in, or about to engage in, threatening disorderly conduct. Tanner v.
Ziegenhorn, No. 4:17-CV-780, 2020 WL 5648642, at *2 (E.D. Ark. Sept. 22, 2020).
The officer claimed that he believed the customer “was becoming unruly in violation
of Arkansas’s disorderly conduct statute, including raising his voice to a level where
he attracted people’s attention, stiffening his posture, and bowing up like he might
be confrontational.” Id. The customer, on the other hand, argued that, even though
he refused to provide the officer with identification, he was responsive to the
officer’s questioning, “stayed relatively still[,] and wasn’t loud or obnoxious.” Id.
Based on the parties’ conflicting accounts, the district court concluded that a jury
needed to decide whether the customer “was becoming disorderly.” Id.
Comparing the undisputed facts here with Tanner, the Evanses were
cooperative, quiet, and polite. The only evidence the Officers present as threatening
are the vests that the brothers wore. Furthermore, the Officers’ own actions
undermine their argument that the Evanses engaged in threatening behavior. After
searching Kameron, the Officers permitted him to walk unrestrained on their way to
Principal Hawkins’ office and likewise sit outside of Principal Hawkins’ office while
they met inside. The Officers even considered allowing Kameron to continue
wearing or carrying his vest and duffle bag throughout the remainder of the day. For
Noah, there is even less support he engaged in threatening behavior. In fact, the
Officers present no evidence that Noah acted threatening in any way.
Finally, the Officers do not argue they made a contemporaneous
determination that probable cause was established at the time of the arrests. By their
own testimony, they made the arrest at the direction of Principal Hawkins. Taking
the evidence in the light most favorable to the Evanses, Principal Hawkins’ concern

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was not about disruption caused by wearing the vests, but rather Kameron’s support
of Colin Kaepernick and the Black Lives Matter movement.
In today’s climate of school shootings, school officials and police officers are
justified in having heightened concern around attire that might suggest a student is
armed. But context matters, and schools have many mechanisms to discipline
students. Cabot High School, where the Officers work, is a place that had previously
tolerated students wearing military gear, without discipline. After searches of the
Evanses revealed they were not armed or in any way threatening, the Officers
nonetheless decided to arrest both brothers at the direction of the school principal.
These facts, viewed in the light most favorable to the Evanses, do not support a
finding of arguable probable cause. Accordingly, because the district court did not
err in denying the Officers’ motion for summary judgment and qualified immunity
on the Evanses’ unlawful arrest claim, we affirm.3
III.
The Officers also argue that the district court erred in denying qualified
immunity on the Evanses’ malicious prosecution and false imprisonment claims.
However, the Officers’ only argument supporting this position is that they had
probable cause, which would necessarily defeat both claims. As we just concluded,
the Officers lacked even arguable probable cause and therefore must lose this
challenge. Accordingly, we affirm the district court’s denial of summary judgment
and qualified immunity as to these claims.
3 The Officers also argue that the undisputed facts show that only Officer
Taunton arrested Noah and Kameron, and therefore Officer Dodd is independently
entitled to qualified immunity because he did not participate in the arrest. However,
whether Officer Dodd took part in the arrest turns on disputed facts. Accordingly,
the Court lacks jurisdiction over this issue. Thompson, 800 F.3d at 982–83.

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IV.
Lastly, the Officers contend that the district court erred in denying them
qualified immunity on the Evanses’ excessive force and abuse of process claims.
The Evanses failed to respond to the Officers’ arguments on these issues as required
by the Federal Rules of Appellate Procedure. Fed. R. App. P. 28(b); United States v.
Stuckey, 255 F.3d 528, 531 (8th Cir. 2001) (“[W]e regularly decline to consider
cursory or summary arguments that are unsupported by citations to legal
authorities.”); see also Harlow v. United States, 720 F. App’x 805, 807 (8th Cir.
2018) (unpublished) (refusing to consider issues where appellee failed to respond to
the appellant’s arguments). United States v. Beasley, 102 F.3d 1440, 1447 (8th Cir.
1996) (“[A] litigant cannot make arguments on appeal by incorporating by reference
into his appellate brief arguments made in written submissions to the trial court.”).
Accordingly, the Evanses “waived any right to have these arguments considered on
appeal.” Toney v. Gammon, 79 F.3d 693, 696 n.1 (8th Cir. 1996). We do not believe
the above-cited cases strictly bind our panel in deciding how to treat the unbriefed
issues. But in this instance, because the Evanses failed to respond to these issues on
appeal and because we independently determine that these claims have little or no
merit, we find it appropriate to reverse the district court’s denial of qualified
immunity as to the excessive force and state law claims.
V.
For the foregoing reasons, the district court’s judgment is affirmed in part and
reversed in part. We remand for further proceedings consistent with this opinion.
KOBES, Circuit Judge, concurring in part and concurring in the judgment.
I agree with the court that the officers are entitled to qualified immunity on
excessive force and Arkansas abuse of process, but I would not rely on waiver.
Although the arguments on appeal are sparse, the merits are straightforward. The
Evanses can’t show that it was clearly established as of February 2018 that any force

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is excessive during an unlawful arrest, as the district court held here, or that the use
of handcuffs was objectively unreasonable. Cf. Chambers v. Pennycook, 641 F.3d
898, 907 (8th Cir. 2011) (plaintiff must show “something more” than “some
irritation, minor injury, or discomfort where the handcuffs are applied” for it to
amount to excessive force (citation omitted)). Nor have they even alleged that the
Officers “did anything after charges were filed . . . to extort or coerce [them]”—the
test for abuse of process under Arkansas law. Sundeen v. Kroger, 133 S.W.3d 393,
399 (Ark. 2003) (emphasis added). So both officers are entitled to qualified
immunity on excessive force and abuse of process.
I otherwise concur in the court’s opinion.
______________________________

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