Labor & Employment Law Daily Wrap Up, INDIVIDUAL RIGHTS—8th Cir.: Former police officer who witnessed excessive use of force cannot revive claims, (Aug 21, 2025)

By Todd Harrison, J.D.

He had voluntarily resigned from the police department, and a voluntary resignation is not an adverse employment action absent a claim of constructive discharge.

Affirming a district court’s grant of summary judgment against the First and Fourth Amendment as well as the state-law claims brought by a former Dermott, Arkansas, police officer, the Eighth Circuit found that he could not point to an adverse action sufficient to support his claim for First Amendment retaliation, and a summons alone does not constitute a seizure sufficient to support a Fourth Amendment claim for malicious prosecution. The officer claimed that he was retaliated against after witnessing another officer’s use of excessive force, but was later placed under investigation himself for allegedly taking money from a parolee and failing to turn it in to the police department, an allegation that led to his voluntary resignation (Brown v. City of Dermott, No. 23-3073 (8th Cir. Aug. 20, 2025)).

Excessive force. In November 2019, the officer saw another police officer grab an arrestee by the neck while he was chained to a pole at the police department. The officer did not report the incident to the police chief, however another colleague did so. Later, the mayor and the city council learned of the incident, though it was disputed how they came to know of this information.

Money seizure. A month later, the police officer who allegedly used excessive force told the police chief that the officer took money from a parolee and did not turn it into the police department. He also claimed that the officer tried to give him a cut and that he overheard him telling others that he had taken more than $300 from the parolee.

According to the officer, it was the police officer who allegedly used excessive force who had taken $150 from the parolee, but the parolee filed a statement that the officer was the one who had taken his money. The police chief referred the incident to a local prosecutor, who referred it to the Arkansas State Police for investigation.

Resignation. On January 31, 2020, the officer called a sergeant and informed him that he would not be coming into work because he was sick. Despite the sergeant’s lack of authority to do so, he stated that the officer was fired for being a “no-call, no-show.” Neither the police chief nor anyone else from the department ever told the officer he was fired, and the police chief testified an officer cannot be fired without approval of the mayor and city council. The officer testified that the mayor told him the police chief could not fire him, but he could resign.

Subsequently, the Lake Village, Arkansas Police Department hired the officer with a start date of mid-February. On February 4, Lake Village rescinded its offer after learning of the state police investigation. The officer resigned from the Dermott Police Department without explanation the following day. The investigation also prevented the officer from receiving a job offer from the Eudora, Arkansas Police Department.

Charges. Following the investigation, the officer was charged with abuse of office and witness bribery. He was not arrested but was summoned to appear in court. The case was eventually dismissed because the prosecutor could not track down the parolee. The officer later filed this lawsuit against the city of Dermott, the officer who allegedly used excessive force, and the police chief.

First Amendment retaliation. First, the officer argued that he was fired in retaliation for exercising his First Amendment rights by reporting a fellow police officer’s excessive use of force. He claimed that he was terminated by the appellees, which “obviously constitutes an adverse employment action.” However, he admitted that he had resigned from the police department and made no claim for constructive discharge.

A voluntary resignation is not an adverse employment action, explained the court. As to the officer’s argument for a cat’s paw theory of liability—that the mayor was motivated by the discriminatory animus of either the police chief or the other police officer—the court again pointed out that such a theory still requires an adverse employment action. Accordingly, the grant of summary judgment against this claim was affirmed.

Fourth Amendment claim. Next, the officer claimed that the police chief and his fellow police officer violated his Fourth Amendment right to be free from malicious prosecution. Because the claim was brought under the Fourth Amendment, the officer was required to prove that the malicious prosecution resulted in his seizure.

Here, the officer failed to show that he was seized within the meaning of the Fourth Amendment, said the court. Although the officer claimed that the summons required him to submit to the state’s assertion of authority, the court pointed out no court has held that a summons alone constitutes a seizure.

The officer maintained that a summons “certainly restricts a criminal defendant’s freedom of movement, since failure to appear in court is a crime and will likely result in the court issuing a warrant for the defendant’s arrest.” However, explained the court, even if the summons stated that he would be arrested if he failed to appear in court at a certain date and time, and if such an arrest could constitute a new and different type of seizure, that was not a question that had to be addressed as no such occurrence took place here. As such, the grant of summary judgment against this claim was also affirmed.

State-law claims. Turning to the officer’s state-law claims, there was some disagreement as to whether the operative complaint properly alleged all of these claims. However, the district court reached the merits of the claims and the defendants did not argue waiver, so the court here too opted to consider the merits.

Whistleblower claim. First addressing the officer’s Arkansas Whistle Blower Act claim, the court found that this claim failed for the same reason as the officer’s First Amendment retaliation claim—there was no adverse employment action.

Malicious prosecution claim. With regard to the officer’s claim for malicious prosecution, the court found this fared no better because there was probable cause to charge him with abuse of office and bribery, noting that it was undisputed that the parolee stated that the officer had taken his money, and that the fellow police officer stated that he was offered a cut of the proceeds.

Abuse of process. The officer’s abuse of process claim also failed because he never asserted that the fellow police officer or the police chief abused a legal process after it was set in motion.

Defamation. Finally, the officer’s defamation claim failed because there was no genuine dispute that the police chief’s statements to the other police departments that the officer was under investigation were truthful.

The case is No. 23-3073.

Judge: Kobes, J.

Attorneys: Lucien R. Gillham (Sutter & Gillham) for Lee Van Brown. Matthew Keith Wren, Arkansas Municipal League, for City of Dermott Arkansas.

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