Ethan Daniel Marks v. Benjamin M. Bauer, acting in his individual capacity as a Minneapolis Police Officer

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 23-1420
___________________________
Ethan Daniel Marks
Plaintiff - Appellee
v.
Benjamin M. Bauer, acting in his individual capacity as a Minneapolis Police
Officer
Defendant - Appellant
____________
Appeal from United States District Court
for the District of Minnesota
____________
Submitted: July 7, 2025
Filed: February 12, 2026
____________
Before COLLOTON, Chief Judge, ERICKSON and STRAS, Circuit Judges.
____________
ERICKSON, Circuit Judge.
Ethan Marks, who was 19 years old at the time, sustained a ruptured eyeball,
a fractured eye socket, and a traumatic brain injury when Minneapolis Police Officer
Benjamin Bauer shot him with a chemical-filled projectile from approximately five
to ten feet away. Marks sued Officer Bauer under 42 U.S.C. § 1983, alleging

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violations of the Fourth and Fourteenth Amendments. The district court1 denied
Officer Bauer’s motion for summary judgment on Marks’ excessive force claim,
finding that genuine issues of material fact precluded a grant of qualified immunity.
This Court affirmed. Marks v. Bauer, 107 F.4th 840 (8th Cir. 2024). The Supreme
Court vacated the judgment and remanded “for further consideration in light of
Barnes v. Felix, 605 U.S. 73, 145 S. Ct. 1353, 221 L. Ed. 2d 751 (2025).” Bauer v.
Marks, 145 S. Ct. 2733 (2025). Because this Court did not apply the “moment-of-
threat” rule in our original opinion, we affirm.
I. BACKGROUND
On May 28, 2020, three days after protests had erupted in response to the
death of George Floyd, Marks and his mother went to an area near the Minneapolis
Police Department’s (“MPD”) Third Precinct building to help clean up damage
caused by rioting and looting. When Marks arrived, hundreds of people, including
protestors, were in the area. At approximately 5:30 p.m., Officer Bauer as well as
other SWAT team officers responded to the area on a report that an individual in the
crowd had been stabbed. As the SWAT team drove toward the scene, the officers
were informed of the presence of a large crowd in the area with some people
throwing rocks at approaching officers. When the SWAT van entered the area, it
was hit with frozen water bottles, a rock, and other objects.
Officer Bauer exited the SWAT van, moved toward the area where people
were throwing objects, and deployed his launcher at the individuals from a distance.
Officer Bauer then provided protection for the other officers loading the stabbing
victim into the back of a police SUV. When he returned to the SWAT van, Officer
Bauer learned of a report that there was an injured person who had been struck by a
baseball bat. Officer Bauer ran toward the area of the injured woman and positioned
1 The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.

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himself to help establish a perimeter for the officers who were trying to evacuate her
from the area.
Marks’ mother, a registered nurse, tried to approach the injured woman to
offer medical assistance. MPD Officer Jonathan Pobuda, who was also helping form
a perimeter around the victim, blocked Marks’ mother with his arm and ordered her
to stand back. After this interaction, Marks stepped over a large, corrugated pipe
laying on the ground, walked over to Officer Pobuda, who is six feet tall and weighs
265 pounds, and shouted with one of his hands clenched in a fist, “Back up, bitch!”
Marks’ shouting drew the attention of Officer Bauer, who turned and saw Marks
strike Officer Pobuda and try to grasp his riot baton. Officer Pobuda pushed Marks
back with his baton, causing him to lose his balance and stumble backwards over the
corrugated pipe. A bystander with outstretched arms stepped into the space between
Marks and Officer Pobuda.
After pushing Marks away, Officer Pobuda no longer perceived Marks as a
threat and concluded no additional force was necessary. Despite the apparent
amelioration of the threat, Officer Bauer believed a “bad assault” was occurring.
Without warning, Officer Bauer shot Marks in the face from approximately five to
ten feet2 away with a projectile. From the time Officer Bauer raised the launcher to
when he fired it, only a half a second had transpired. The projectile used by Officer
Bauer has an exit muzzle velocity of approximately 200 miles per hour and releases
an inflammatory chemical agent upon impact. The chemical-filled projectile hit
Marks’ right eye and exploded, rupturing his right eyeball, fracturing his eye socket,
and causing a traumatic brain injury. Marks is now legally blind in that eye.
2 There is varying evidence in the record as to the distance between Marks and
Officer Bauer at the time Officer Bauer aimed and fired at Marks. The district court
stated the distance was five to ten feet, noting that Officer Bauer during an interview
about the incident stated he shot from just beyond the minimum safe standoff range
of five feet. A forensic video specialist estimated the distance between the launcher’s
muzzle and Marks’ head was between 70 and 80 inches.

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The launcher used by Officer Bauer fires 40-millimeter “high energy
munitions.” In the best-case scenario, the projectile leaves the target’s body surface
intact while causing enough injury to incapacitate the target. Under the worst-case
scenario, the weapon can cause serious injury or death. Although the launcher is
categorized as a “less lethal” weapon, it is not non-lethal, as the manufacturer’s
warning expressly states: “This product may cause serious injury or death to you or
others.”
Given the risk of serious injury or death, MPD SWAT officers are trained to
consider which “zone” of the body to target when deciding where to shoot. Zone 1
is the area officers are trained to consider first and consists of large muscle groups,
such as the buttocks, thighs, and calves. Zone 2 of the body consists of medium
muscle groups and encompasses the abdominal area. Zone 3 includes the chest (the
“center mass”), spine, neck, and head. Because Zone 3 carries the greatest risk for
serious injury or death, MPD training instructs officers to shoot at Zone 3 only when
“maximum effectiveness is desired to meet a level of threat escalating to deadly
force.” The MPD also provides training on the optimal deployment range for firing
projectiles, with 10 to 90 feet being the optimal range for most projectiles.
Officer Bauer was trained and qualified to carry the launcher at issue
approximately six years before he shot Marks. To be qualified to carry and use the
launcher, Officer Bauer was required to undergo annual training and written tests in
addition to field testing that involves firing the launcher at designated targets. The
goal of the training is to ensure that SWAT members are “more proficient” with their
weapons than regular MPD officers. During the George Floyd protests, Officer
Bauer estimated that he personally fired approximately 500 projectiles using the 40
MM Tactical launcher. Officer Bauer admitted as part of this litigation that the
launcher is an accurate weapon. The district court found that Officer Bauer had
established himself as an accurate shooter.
The level of force used by Officer Bauer against Marks caused the crowd to
react. Almost immediately after Marks was shot in the eye, individuals screamed at

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Officer Bauer and the crowd began to inch closer to the perimeter. One bystander
shouted, “Hey! Hey! Point blank?” Officer Bauer yelled back, “Yes!” Within 30
seconds of shooting Marks, the officers successfully evacuated the injured person
and began to retreat. Within three minutes of the shooting, the officers jumped in
their vehicles and sped away from the scene. Neither Officer Bauer nor Officer
Pobuda rendered aid to Marks and he was not arrested.
The MPD referred Marks’ encounter with Officer Pobuda to the Hennepin
County Attorney’s office for possible criminal charges, including assault or
attempting to disarm a police officer. After reviewing the materials, which included
the MPD body camera footage and Officer Pobuda’s report of the incident, the
county attorney declined to prosecute, concluding no felony charges were warranted.
The MPD then sent the materials to the Minneapolis City Attorney’s Office for
consideration of misdemeanor charges. An independent prosecutor in the St. Paul
Office reviewed the matter and declined to charge Marks, concluding there was
“insufficient evidence” and the “facts/circumstances do not support charges.”
After Marks commenced this action, Officer Bauer moved for summary
judgment asserting he was entitled to qualified immunity because he intended to hit
Marks in the torso, not the face. It was not until Officer Bauer’s reply brief that he
claimed there was no seizure under the Fourth Amendment. The district court found
Officer Bauer’s argument not only untimely but also that it failed on the merits. The
district court denied Officer Bauer’s motion, determining that, regardless of his
subjective intent or motivation, Officer Bauer used force that was not objectively
reasonable under the circumstances. And even if subjective intent was relevant in
the analysis as Officer Bauer argued, the district court found there was a genuine
dispute of material fact concerning whether Officer Bauer intended to use deadly
force when he shot Marks in the face. In addition, the district court found that even
if the force used by Officer Bauer was considered non-deadly, the force used on
Marks was unreasonable given the facts and circumstances confronting Officer
Bauer. Lastly, the district court pointed to existing precedent that put Officer Bauer
on notice that deadly force is appropriate only in response to a significant threat of

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death or serious physical injury to the officer or others, which was not present when
Officer Bauer shot Marks, and it would have been clear to a reasonable officer in
Officer Bauer’s position that the high degree of force used by Officer Bauer was
disproportionate to the threat before him.
Officer Bauer appeals, contending his deployment of the projectile did not
result in a seizure and the force used was objectively reasonable because the crimes
Marks was suspected of committing were “severe,” Marks posed an immediate
threat to the safety of Officer Pobuda, and it was a “tense, uncertain, and rapidly
evolving situation.”
II. DISCUSSION
The Eighth Circuit reviews a district court’s qualified immunity determination
de novo. Burbridge v. City of St. Louis, 2 F.4th 774, 779 (8th Cir. 2021). The
sufficiency of the evidence, meaning which facts a party may be able to prove at
trial, is unreviewable. Johnson v. Jones, 515 U.S. 304, 313 (1995).
Qualified immunity shields government officials from § 1983 lawsuits and
liability unless the official’s conduct violates a clearly established constitutional or
statutory right of which a reasonable person would have known. See Davitt v.
Spindler-Krage, 96 F.4th 1068, 1071 (8th Cir. 2024). Marks bears the burden of
showing Officer Bauer violated a constitutional right and the unlawfulness of his
conduct was clearly established at the time. Martinez v. Sasse, 37 F.4th 506, 509
(8th Cir. 2022). A right is “clearly established” when the law is “sufficiently clear”
at the time of the challenged conduct “that every reasonable official would
understand that what he is doing is unlawful.” D.C. v. Wesby, 583 U.S. 48, 63
(2018) (cleaned up).

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A. Seizure
Officer Bauer contends deploying a projectile against an “assaultive
protestor” is insufficient force to constitute a seizure under the Fourth Amendment.
To establish a Fourth Amendment violation, Marks must show both that a seizure
occurred and the seizure was unreasonable. Dundon v. Kirchmeier, 85 F.4th 1250,
1255 (8th Cir. 2023). “The word ‘seizure’ readily bears the meaning of a laying on
of hands or application of physical force to restrain movement, even when it is
ultimately unsuccessful.” California v. Hodari D., 499 U.S. 621, 626 (1991)
(emphasis added).
In this case, the evidence reflects that Officer Bauer applied physical force to
restrain Marks’ movement by shooting him in the face. This physical force knocked
Marks to the ground and restrained his freedom of movement. Officer Bauer
testified he used force to restrain Marks’ movement, stating:
Well, with the -- the way he was acting, how he jumped on -- into the -
- with -- like I said, with the officer -- I believe it was Officer Pobuda,
so I’ll refer to that -- and punching Officer Pobuda, he was on top of
him, I thought there was a bad assault going on. And that’s when I
reacted to it. And I thought that if it kept going, then it would get worse.
So I -- that’s why I decided -- this is a fast-action thing, and I deployed
the 40 at him, sir.
In analyzing Officer Bauer’s claim that his actions did not amount to a seizure,
we find the Supreme Court’s guidance in Brower on whether a seizure has occurred
helpful:
[I]n determining whether there has been a seizure in a case such as this,
to distinguish between a roadblock that is designed to give the
oncoming driver the option of a voluntary stop (e.g., one at the end of
a long straightaway), and a roadblock that is designed precisely to
produce a collision (e.g., one located just around a bend). In
determining whether the means that terminates the freedom of
movement is the very means that the government intended we cannot

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draw too fine a line, or we will be driven to saying that one is not seized
who has been stopped by the accidental discharge of a gun with which
he was meant only to be bludgeoned, or by a bullet in the heart that was
meant only for the leg. We think it enough for a seizure that a person
be stopped by the very instrumentality set in motion or put in place in
order to achieve that result.
Brower v. Cnty. of Inyo, 489 U.S. 593, 598-99 (1989). The projectile aimed and
purposefully deployed at Marks by Officer Bauer stopped Marks and achieved the
result Officer Bauer intended. Viewed in the light most favorable to Marks, the facts
establish a seizure occurred when Officer Bauer shot Marks.
That Marks was not arrested does not change the analysis. See Pollreis v.
Marzolf, 66 F.4th 726, 731 (8th Cir. 2023) (concluding the plaintiff, while not
arrested or detained, was seized, even if only for a moment). In Ludwig v. Anderson,
54 F.3d 465, 469 (8th Cir. 1995), Ludwig was never arrested, but instead died after
an officer shot him to stop him from attempting to get across the street. The Court
determined that Ludwig was seized twice during the encounter in a potentially
unreasonable manner: (1) when an officer attempted to hit Ludwig with his police
car, and (2) when Ludwig was shot. Id. at 471. Under the facts and circumstances
of this case, Marks was seized when Officer Bauer shot him with a projectile. See
id.; see also Hodari D., 499 U.S. at 625 (explaining a seizure can be “effected by the
slightest application of physical force”).
B. Reasonableness of Seizure
Officer Bauer next contends his actions were objectively reasonable. The
parties disagree over whether Officer Bauer used deadly force. In the district court,
Officer Bauer did not argue that the use of deadly force would have been objectively
reasonable in this situation. Rather, he contended that he did not use deadly force
because he intended to hit Marks in the torso, not the face. According to Officer
Bauer, the projectile struck Marks in the face because Marks’ body dropped
suddenly before the launcher was deployed.

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There is no separate “reasonableness” test for when deadly force is used. Scott
v. Harris, 550 U.S. 372, 382 (2007). As part of the reasonableness inquiry, we will
examine “the use of a particular type of force in a particular situation.” Id. When
determining whether an officer’s actions were objectively reasonable, we consider
the totality of the circumstances. Barnes v. Felix, 605 U.S. 73, 76 (2025). The
totality of the circumstances includes relevant facts and events leading up to the
moment the officer deployed force against the individual. Id. at 76, 80. “Of course,
the situation at the precise time of the shooting will often be what matters most; it
is, after all, the officer’s choice in that moment that is under review.” Id. at 80.
“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.”
Banks v. Hawkins, 999 F.3d 521, 525 (8th Cir. 2021).
Here, the force used by Officer Bauer consisted of a projectile shot from a less
lethal launcher at close range at Marks’ face—an area of the body that MPD training
instructed its officers has the greatest potential for serious or fatal injury. Officer
Bauer claims he aimed at Marks’ torso; therefore, he did not deploy deadly force.
On this record, a genuine issue of material fact exists concerning whether Officer
Bauer intended to use deadly force when he shot Marks in the face. In contrast to
Officer Bauer’s claim, Marks notes Officer Bauer’s training and skill as a marksman.
He also points to the videos, which he contends show Officer Bauer tracking Marks’
head, and his expert who opined that at the time of discharge, the gun was elevated
at Zone 3 on Marks’ body, not Zone 2. In addition, the district court noted that
Officer Bauer provided unclear deposition testimony about where he was aiming.
Regardless of Officer Bauer’s intent, the evidence in the record supports a
conclusion that Officer Bauer used force capable of causing serious or fatal injury
to Marks, who at the time he was shot with the chemical projectile was unarmed,
had been pushed several feet away from Officer Pobuda, was stumbling backwards,
and a bystander with outstretched arms stood between Marks and Officer Pobuda.
Nonetheless, whether Officer Bauer used deadly or non-deadly force need not
be conclusively resolved at this stage because viewing the record in the light most

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favorable to Marks and drawing all reasonable inferences in his favor, while also
viewing the facts from the perspective of a reasonable officer on the scene, Officer
Bauer has failed to show his use of force was objectively reasonable as a matter of
law. Officer Bauer asserts shooting Marks was objectively reasonable because a
reasonable officer would have suspected Marks had committed “multiple serious
and violent crimes,” he posed an immediate threat to Officer Pobuda’s safety, and
the incident was a tense, uncertain, and rapidly evolving situation. Officer Bauer’s
assertions overstate the evidence in the record.
We first consider the nature of the crimes Officer Bauer purports Marks had
committed in the moments preceding the shooting. The video of the encounter lends
little support to Officer Bauer’s characterization of Marks’ conduct. It shows that at
one point, Marks appeared to strike Officer Pobuda and that Marks grabbed at
Officer Pobuda’s baton. Whether Marks was grasping at the baton to maintain his
balance or attempting to disarm Officer Pobuda is a dispute not resolved by the video
and is a material factual dispute for the trier of fact. In addition, the record contains
evidence that the MPD referred Marks’ conduct toward Officer Pobuda initially to
the County Attorney’s Office for felony charges and subsequently to the City
Attorney’s Office for consideration of misdemeanor charges. Each office
independently reviewed the materials provided by the MPD, including the video
footage, and each declined to press charges against Marks. While a jury might
accept Officer Bauer’s characterization of the incident as a “bad assault,” contrary
evidence exists in the record such that a reasonable jury could find that the force
Officer Bauer used in response to the brief altercation between Marks and Officer
Pobuda was excessive.
Next, when considering the totality of the circumstances, including the
immediacy of the threat posed by Marks, it is important to note that we assess the
reasonableness of the response to the threat by also looking at the threat present at
the time an officer deploys the force. See Barnes, 605 U.S. at 80 (“the situation at
the precise time of the shooting will often be what matters most”). On this record, a
reasonable jury could find that at the time Marks was shot, he did not pose an

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immediate threat to Officer Pobuda or to anyone else at the scene because Officer
Pobuda had successfully pushed an unarmed Marks away from him, causing him to
stumble and fall backwards. The push created several feet of space between the two
men—sufficient space for a bystander with outstretched arms to step into the space
between them. After the separation, Officer Pobuda did not believe further use of
force was necessary. Resolving factual disputes in Marks’ favor, as we are required
to do at this stage of the proceedings, Officer Bauer has failed to demonstrate that
when he aimed and shot a falling and unarmed Marks in the face, a reasonable officer
could have believed that Marks posed an immediate threat to the safety of the
officers or others. See Rusness v. Becker Cnty., 31 F.4th 606, 614 (8th Cir. 2022)
(“The party asserting immunity always has the burden to establish the relevant
predicate facts, and at the summary judgment stage, the nonmoving party is given
the benefit of all reasonable inferences.”).
While Officer Bauer asserts that this was a tense and rapidly changing
situation such that he was compelled to make a split-second decision to shoot, the
video evidence shows that the situation at the time of the shooting was dramatically
different than when the officers first arrived and encountered a hostile crowd. When
the officers first arrived, they were outnumbered with some individuals shouting and
throwing things. Even so, the officers were able to establish a perimeter quickly and
the crowd calmed down. The officers were then able to successfully evacuate the
first injured individual without incident. They were then working, without
interference from the crowd, on assisting a second injured individual. The situation
escalated when Marks reacted after he observed Officer Pobuda push his mother,
who, as a registered nurse, was merely volunteering to help provide medical
assistance to the injured person. That threat, however, was brief and extinguished
quickly and effectively, as Officer Pobuda was able to push Marks back, causing
him to stumble backwards. See Banks, 999 F.3d at 530 n.8 (“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.”).

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Based on the evidence in the record, a reasonable officer could have observed
there was no need to rush to Officer Pobuda’s aid by firing a projectile at close range
because Marks was no longer engaged with Officer Pobuda or threatening anyone
else. See id. at 527 (concluding an officer who either (a) fires instinctively, without
a warning or a split-second pause to assess the situation, or (b) after ascertaining the
suspect was no longer acting in an aggressive or threatening manner does not act in
an objectively reasonable manner under the Fourth Amendment). Although a jury
might agree with Officer Bauer’s assessment of the situation and find his use of force
was objectively reasonable, the evidence when viewed in the light most favorable to
Marks demonstrates a violation of Marks’ constitutional right to be free from
excessive force when, under these circumstances, Officer Bauer shot Marks in the
face at close range with a chemical projectile.
C. Clearly Established
Officer Bauer also argues that it was not clearly established on May 28, 2020,
that deploying a projectile against an “assaultive protestor” would constitute
excessive force under the Fourth Amendment. To be clearly established, the
contours of the constitutional right at issue must be sufficiently clear such that every
reasonable officer would have understood that what he is doing violates that right.
Boudoin v. Harsson, 962 F.3d 1034, 1039 (8th Cir. 2020). A plaintiff may establish
a right is clearly established by pointing to existing circuit precedent that would put
a reasonable officer on notice that his specific use of force in a particular
circumstance would violate the plaintiff’s right not to be seized by excessive force.
Banks, 999 F.3d at 528. Officers are held liable for “transgressing bright lines,” not
for “bad guesses in gray areas.” Boudoin, 962 F.3d at 1040. “[W]hether the
constitutional right at issue was ‘clearly established’ is a question of law for the court
to decide.” Rohrbough v. Hall, 586 F.3d 582, 586 (8th Cir. 2009).
Marks does not need to identify an identical case to show that Officer
Bauer’s conduct was previously held to be unlawful. Banks, 999 F.3d at 528; see
also Glover v. Paul, 78 F.4th 1019, 1024–25 (8th Cir. 2023) (noting “[t]here is no

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requirement [ ] that [a] [plaintiff] marshal a case in which ‘the very action in question
has previously been held unlawful,’ so long as the unlawfulness of the action is
apparent in light of preexisting law”) (quoting Anderson v. Creighton, 483 U.S. 635,
640 (1987)); Hope v. Pelzer, 536 U.S. 730, 741 (2002) (“[O]fficials can still be on
notice that their conduct violates established law even in novel factual
circumstances.”).
Our cases clearly establish that a police officer is not permitted to use deadly
force on an individual, who previously posed a threat to others, but no longer
presents an immediate threat. Cole Est. of Richards v. Hutchins, 959 F.3d 1127,
1134 (8th Cir. 2020) (stating “it was clearly established that a few seconds is enough
time to determine an immediate threat has passed, extinguishing a preexisting
justification for the use of deadly force”). This is neither a situation where Officer
Bauer was under attack nor a situation where he received a blow to the head in a
rapidly evolving situation. Instead, he saw a 6-foot, 205-pound, 19-year-old
unarmed Marks squaring off against a 6-foot, 265-pound, 37-year-old armed Officer
Pobuda. Within 4 seconds, Officer Pobuda had forced Marks away with such force
that he was “kind of falling” when Officer Bauer fired his shot. At the time of this
incident, it was clearly established that it is unlawful to shoot an unarmed man who
was falling and posing no imminent threat to officers or to anyone else.
Officer Pobuda testified that after effectively using his baton on Marks, Marks
was no longer an immediate threat:
Q: You did not perceive him to be a threat and didn’t go after him at
that point. Correct?
Officer Pobuda: Are you talking about at the point in which we
separated?
Q: Yeah.
Officer Pobuda: Correct. I did not pursue – I did not pursue him after
our interaction, sir.

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Q: And you didn’t think that further use of force by you on him was
necessary?
Officer Pobuda: No, sir.
While Officer Bauer challenges the characterization of his use of force as
deadly, we have previously noted that less-lethal force can amount to deadly force
depending on the situation. See, e.g., Ludwig, 54 F.3d at 473 (acknowledging that
“an attempt to hit an individual with a moving squad car is an attempt to apprehend
by use of deadly force”). Here, Officer Bauer testified that he knew a 40 MM
Tactical Single Launcher can be considered deadly force. He was aware the
manufacturer warned the product could cause serious injury or death. And he noted
that he was trained using materials explaining that targeting was crucial to reduce
injury potential. The evidence related to Officer Bauer’s training reflects that the
munitions were not described as non-lethal, but as less-lethal munitions, which if
misused could cause death. To the extent that Officer Bauer used deadly force when
he shot Marks, it was clearly established in May 2020 that the use of deadly force
on a non-threatening suspect was objectively unreasonable.
The outcome would be the same even if Officer Bauer used less than deadly
force by purportedly aiming for Marks’ torso. After establishing a perimeter and
evacuating the victim who was the subject of the dispatch, Officer Bauer, Officer
Pobuda, and others successfully formed a new perimeter around a second injured
victim. The video evidence shows that the crowd at this moment was compliant.
Some members were assisting law enforcement. Another part of the crowd watched
from a distance and recorded the events on their phones. Unlike the individuals in
White v. Jackson, 865 F.3d 1064, 1072 (8th Cir. 2017), who were ordered to disperse
and who saw police forming a skirmish line to disperse them, the crowd present at
this scene had never been given a dispersal order. This case is also unlike the crowd
in Bernini v. City of St. Paul, 665 F.3d 997, 1001, 1006 (8th Cir. 2012), where
officers suspected the individuals intended on penetrating the police line.

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The video evidence in this case documents that the crowd was demonstrating
no hostility toward the officers when Officer Bauer shot Marks in the face, who was
unarmed and stumbling backwards to the ground away from Officer Pobuda. It was
only after Officer Bauer shot Marks in the face that the crowd’s hostility toward the
officers began to escalate again. Given the compliant nature of the crowd at the
moment of the shooting, which distinguishes this case from the ones cited by Officer
Bauer, viewing the record in the light most favorable to Marks, Officer Bauer shot
Marks at close range with a weapon that he knew could amount to deadly force. It
would have been clear to a reasonable officer in Officer Bauer’s position that this
high degree of force was disproportionate to the threat before him.
In Montoya v. City of Flandreau, the Court held that a question of fact existed
for the trier of fact where the plaintiff, though acting aggressively, was 10 to 15 feet
away from the officer, and posed no threat to the officer at the time the officer
engaged in a leg sweep causing the plaintiff to suffer a broken leg. 669 F.3d 867,
871 (8th Cir. 2012). The Montoya court further held that the excessive force claim
was clearly established when the leg sweep maneuver was employed against a non-
threatening, non-resisting, non-fleeing misdemeanant who was merely waving her
hands in frustration. Id. 872-73. Similarly, in Johnson v. Carroll, the Court
determined that macing and throwing to the ground an unarmed person who “posed
at most a minimal safety threat to the officers” was not objectively reasonable as a
matter of law, notwithstanding that the suspect was resistant as evidenced by her
being charged with obstructing legal process. 658 F.3d 819, 827-28 (8th Cir. 2011).
In another case, Rohrbough, 586 F.3d 582, an officer confronted a suspect,
who had raised his arms but had not assumed a fighting stance, and the officer
pushed the suspect causing the suspect to resist and push back, which led the officer
to punch the suspect in the face and take him down forcefully. The officer provided
a different accounting of what happened. Id. at 587. The Court determined the
severity of the suspect’s reaction is a matter for the jury to decide. Id. The Court
noted that a jury could conclude that the suspect’s push was de minimis or
inconsequential such that a reasonable officer would have known that a response that

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included punching the suspect in the face, taking him to ground face first, landing
on top of him, and causing serious injury was unlawful. Id.
Our cases establish that the critical factor in an excessive force case involving
less than lethal force is whether the suspect “posed a realistic threat to the safety of
[the officer] or a risk of flight that justified the degree of force used.” Westwater v.
Church, 60 F.4th 1124, 1129 (8th Cir. 2023). The Court noted the following:
[C]ontrolling Supreme Court and Eighth Circuit precedents prior to
May 2018 drew fine lines in determining when police officers’ use of
non-deadly force was objectively reasonable in making an arrest or
other seizure. Our cases clearly established that it was objectively
unreasonable to use more than de minimis force to seize a non-
threatening misdemeanant who was not fleeing, resisting arrest, or
ignoring officer commands.
Id. at 1130-31 (citations omitted).
While Officer Bauer highlights the scuffle that occurred between Marks and
Officer Pobuda as the reason for the degree of force used, we must view the evidence
in the light most favorable to Marks with respect to the central facts of the case. It
is for a jury to interpret the nature and extent of the contact between Marks and
Officer Pobuda. See Rohrbough, 586 F.3d at 587 (explaining the severity of the
suspect’s reaction to the officer’s conduct is a matter for the jury to decide). While
Marks could have potentially faced a number of different charges for his conduct,
while not dispositive but a fact for the jury to consider, prosecutors in two different
offices reviewed the evidence presented by the MPD and declined to charge Marks
with either a felony or a misdemeanor. The record also shows that Officer Pobuda
who was engaging with Marks did not believe additional force beyond the push with
his riot baton was necessary.
On this record, a reasonable jury could conclude that Marks was shot when he
neither posed a threat to the officers or the public, nor was he fleeing or ignoring an

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officer’s commands. On the other hand, a jury might agree with Officer Bauer’s
assessment of the situation and find his use of force was objectively reasonable.
Marks has made a compelling showing that Officer Bauer used more than de minimis
force when he shot him in the face at close range with a chemical projectile that he
knew could cause serious injury or death while Marks was no longer resisting but
instead falling backwards to the ground. He used a high level of force despite being
given fair notice that at the time of this incident it was objectively unreasonable to
use more than de minimis force to seize a non-threatening misdemeanant who was
not fleeing, resisting arrest, or ignoring officer commands. Westwater, 60 F.4th at
1131. On this record where disputed issues of material fact exist such that the issues
of law cannot be decided without findings on the central fact issues, Officer Bauer
is not entitled to qualified immunity.
III. CONCLUSION
For the foregoing reasons, we affirm the district court’s decision.
STRAS, Circuit Judge, dissenting.
No Minnesotan can forget the violence in the wake of George Floyd’s death.
At the epicenter was Minneapolis’s Third Precinct police station, which rioters
burned to the ground. This case is about the chaos that came before.
I.
On the third day of rioting and property destruction in Minneapolis, Officer
Benjamin Bauer and his fellow SWAT team members were called to the scene for a
stabbing and encountered a large, out-of-control crowd. Almost immediately, they
had water bottles and rocks thrown at them. As the officers helped the stabbing
victim, they heard about another attack nearby, this time using a baseball bat. They
formed a protective perimeter around the victim.

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At that point, the situation turned from bad to worse. A woman tried to get
through the perimeter, but an officer blocked her with his arm and ordered her to
step back. The officer’s actions angered her son, Ethan Marks, who screamed
“[b]ack up, bitch,” pushed the officer with both hands, and tried to grab his baton.
After the officer regained control of it, he used it to push Marks. As Marks stumbled
backwards, Officer Bauer fired a chemical round from his less-lethal launcher. The
round struck Marks in the face, causing a traumatic brain injury and serious eye
damage.
II.
Although this case is tragic, context matters. See Barnes v. Felix, 605 U.S.
73, 80 (2025) (recognizing that the relevance of “earlier facts and circumstances”
has “no time limit”). And here, given the chaos and violence quickly enveloping the
officers, there is no way to conclude that Officer Bauer’s actions clearly violated
Marks’s rights. See Kelsay v. Ernst, 933 F.3d 975, 979 (8th Cir. 2019) (en banc).
Think of the split-second decision he faced: give a six-foot-tall, 200-pound man who
had just attacked a fellow officer a second chance or neutralize him with a chemical
round. With the benefit of hindsight, we now know that Officer Bauer may have
made the wrong choice, but no one can identify a single case involving “similar
circumstances” that would have provided “fair and clear warning” that his actions
“violated [a] Fourth Amendment” right. White v. Pauly, 580 U.S. 73, 79 (2017) (per
curiam) (citation omitted); see Kisela v. Hughes, 584 U.S. 100, 104 (2018) (“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)). Not one.
Indeed, two cases suggest just the opposite. Consider the strikingly similar
case of White v. Jackson. 865 F.3d 1064 (8th Cir. 2017). In the wake of a police
shooting in Ferguson, Missouri, protestors grew violent. See id. at 1069. The
officers fired smoke and tear-gas canisters and established a “skirmish line” to

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disperse the crowd. Id. at 1072. A bystander, however, ignored commands to stop
and continued to walk toward the officers. Id. at 1072–73. Even though he had not
threatened or attacked anyone, they shot him with “five bean bag rounds and four
rubber bullets.” Id. at 1073. We held that, under those circumstances, “a reasonable
officer could have concluded that [he] had been a part of the violent crowd [and] that
his advances toward the skirmish line posed a threat to officer safety.” Id. at 1079.
A similar situation arose in Bernini v. St. Paul. 665 F.3d 997 (8th Cir. 2012).
The officers there confronted a crowd of “approximately 100 people” who threw
“rocks and bags containing feces.” Id. at 1001. To keep the group from marching
toward the Republican National Convention, the officers fired munitions
“contain[ing] rubber pellets.” Id. In reasoning resembling White, we concluded that
the use of force was reasonable because the crowd was “acting as a unit” and
“intended to break through [a] police line.” Id. at 1003–04.
If anything, Officer Bauer and the SWAT team faced even more danger. Like
White, the officers were caught in the middle of race-related protests that were
nearing a flashpoint. And as in Bernini, the officers formed a perimeter to protect a
sensitive target. To be sure, Marks was neither a bystander in the wrong place at the
wrong time, see White, 865 F.3d at 1072–73, nor a member of a larger group trying
to breach a police line, see Bernini, 665 F.3d at 1006. But by attacking an officer,
he had broken the law and become a danger. “[A] reasonable officer, looking at the
entire legal landscape at the time . . . , could have interpreted [White and Bernini] as
permitting the” use of force, rather than clearly prohibiting it.3 District of Columbia
v. Wesby, 583 U.S. 48, 68 (2018) (emphasis added). At a minimum, “the
3 Qualified immunity is an objective standard, so it makes no difference that
the officer who pushed Marks thought no further force was necessary. See Pearson
v. Callahan, 555 U.S. 223, 244 (2009). Besides, he was viewing the threat from a
different vantage point. All that matters here is whether “a reasonable officer in
[Officer Bauer’s] position could have believed” he needed to use force to subdue
Marks, not whether everyone on the scene thought so. Kelsay, 933 F.3d at 981
(emphasis added).

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constitutional question” was not “beyond debate.” Ashcroft v. al-Kidd, 563 U.S.
731, 741 (2011).
III.
The court concludes otherwise, but only by defining the right at a high level
of generality. See ante at 13 (“[A] police officer is not permitted to use deadly force
on an individual, who previously posed a threat to others, but no longer presents an
immediate threat.”); see also Banks v. Hawkins, 999 F.3d 521, 532 (8th Cir. 2021)
(Stras, J., dissenting) (describing a “formulation so broad that it lack[ed] clarity [and]
risk[ed] sweeping too broadly”). Yet “controlling authority or a robust consensus of
cases” must “clearly prohibit the officer’s conduct in the particular circumstances
before him.” Wesby, 583 U.S. at 63 (emphasis added) (internal quotation marks and
citation omitted); see id. (explaining that “specificity” is “especially important in the
Fourth Amendment context” (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015) (per
curiam))). The court relies on three cases, but they lack factually “similar
circumstances.” Id. at 64 (citation omitted).
The first one is Montoya v. City of Flandreau, but no one attacked an officer
in that case. 669 F.3d 867, 869 (8th Cir. 2012). Rather, in response to a woman
arguing with her ex-boyfriend from “ten to fifteen feet away” with “her hands above
her head,” an officer tackled her with a “leg sweep.” Id. at 871. We held that the
force used may have been excessive because “nothing in the record indicate[d] [that]
[she] threatened or posed any threat to the safety of the officers.” Id. There was no
push, no struggle, no threat, not even a single word of profanity, before the
takedown. Not to mention the absence of a violent crowd.
Johnson v. Carroll is also distinguishable. 658 F.3d 819 (8th Cir. 2011). It
involved a woman who tried to prevent the arrest of her nephew by “interjecting her
body between him and the officers.” Id. at 827. The officers responded by “pushing
her to the ground.” Id. Viewing the facts in her favor, we concluded that the use of
force was unreasonable because “[t]here [wa]s no evidence that [she] actively

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pushed the officers . . . , threatened them, or took any other action against them.”
Id. (emphases added). Marks, by contrast, did each of those things.
Rohrbough v. Hall is even further afield. 586 F.3d 582 (8th Cir. 2009). An
officer there pushed an individual who may have created a “disturbance in [an]
optometry shop.” Id. at 585. When the suspect “returned the push,” the officer
“punched [him] in the face . . . , took him to the ground face down, [and] landed on
top of him.” Id. We left it to a jury to decide whether the officer’s reaction to the
potentially “de minimis or inconsequential” push was excessive. Id. at 587. No one
in that case—not the suspect or anyone else—“pose[d] an immediate threat to the
[officer’s] safety.” Id. at 586.
Marks relies on his own cases, but none gets him any closer to identifying a
clearly established right. In two of them, officers shot men who were alone and
posed no threat. See Cole ex rel. Est. of Richards v. Hutchins, 959 F.3d 1127, 1133
(8th Cir. 2020) (shooting a man who was holding a gun “either toward the ground
or the sky” and “visibly retreating” from another man’s home); Ellison v. Lesher,
796 F.3d 910, 917 (8th Cir. 2015) (firing at an unarmed man in his home). And in
the other, an officer shot the victim of a carjacking. See Craighead v. Lee, 399 F.3d
954, 959 (8th Cir. 2005).
Officer Bauer, by contrast, confronted a violent situation that only grew more
precarious by the second. See Barnes, 605 U.S. at 81 (emphasizing that “in-the-
moment facts cannot be hermetically sealed off from the context in which they
arose” (citation omitted)). Along with his fellow SWAT team members, he faced a
frenzied crowd and had to deal with multiple injured bystanders, one stabbed and
another hit with a baseball bat. During the chaos, Officer Bauer made a “split-second
judgment[]” to use his less-lethal launcher rather than giving an angry six-foot-tall
man another chance to attack a fellow officer. Graham v. Connor, 490 U.S. 386,
397 (1989). Despite the difficult choice he faced, the court allows this lawsuit to
proceed. Today’s message is unmistakable: “even in the absence of a clearly
controlling legal rule, think twice before acting, regardless of whether your own life

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[or another’s] is at stake, because a court may step in later and second-guess your
decision.” Banks, 999 F.3d at 534 (Stras, J., dissenting). I respectfully dissent.
______________________________

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