Connie Berry, et al v. Brandon Davis, et al

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PER CURIAM OPINION FILED - THE COURT: Kermit E. Bye, Lavenski R. Smith and Jane Kelly (UNPUBLISHED) [4186678] [13-3610]

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United States Court of Appeals For the Eighth Circuit ___________________________ No. 13-3610 ___________________________ 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 ____________ Appeal from United States District Court for the Western District of Arkansas - Ft. Smith ____________ Submitted: August 13, 2014 Filed: August 18, 2014 [Unpublished] ____________ Before BYE, SMITH, and KELLY, Circuit Judges. ____________ 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 Appellate Case: 13-3610 Page: 1 Date Filed: 08/18/2014 Entry ID: 4186678 the district court’s1 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. ______________________________ 1 The Honorable Robert T. Dawson, United States District Judge for the Western District of Arkansas. -2- Appellate Case: 13-3610 Page: 2 Date Filed: 08/18/2014 Entry ID: 4186678

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