Cissy Thunderhawk, on behalf of herself v. Morton County; Sheriff Kyle Kirchmeier

United States Court of Appeals
For the Eighth Circuit
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No. 20-3052
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Cissy Thunderhawk, on behalf of herself and all similarly situated persons; Wašté
Win Young, on behalf of herself and all similarly situated persons; Reverend John
Floberg, on behalf of himself and all similarly situated persons; José Zhagñay, on
behalf of himself and all similarly situated persons
Plaintiffs - Appellees
v.
Morton County; Sheriff Kyle Kirchmeier
Defendants
Governor Doug Burgum; Former Governor Jack Dalrymple; Director Grant Levi;
Superintendent Michael Gerhart, Jr.
Defendants - Appellants
Does 1-100; Tigerswan, LLC
Defendants
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American Civil Liberties Union; American Civil Liberties Union of North Dakota
Amici on Behalf of Appellee(s)
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No. 20-3053
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Cissy Thunderhawk, on behalf of herself and all similarly situated persons; Wašté
Win Young, on behalf of herself and all similarly situated persons; Reverend John
Floberg, on behalf of himself and all similarly situated persons; José Zhagñay, on
behalf of himself and all similarly situated persons
Plaintiffs - Appellees
v.
Sheriff Kyle Kirchmeier
Defendant - Appellant
Governor Doug Burgum; Former Governor Jack Dalrymple; Director Grant Levi;
Superintendent Michael Gerhart, Jr.; Tigerswan, LLC; Does 1-100; Morton County
Defendants
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American Civil Liberties Union; American Civil Liberties Union of North Dakota
Amici on Behalf of Appellee(s)
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Appeal from United States District Court
for the District of North Dakota - Western
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Submitted: February 15, 2022
Filed: July 5, 2022
[Unpublished]
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Before LOKEN, COLLOTON, and SHEPHERD, Circuit Judges.
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PER CURIAM.

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This putative class action arises from the highly publicized protests against
construction of the Dakota Access Pipeline (DAPL) across an area of North Dakota
near the boundary of the Standing Rock Indian Reservation. Between April 2016
and February 2017, members of the Standing Rock Sioux Tribe, along with tens of
thousands of self-identified “Water Protectors,” engaged in protests near where State
Highway 1806 crosses the Cannonball River. Following a significant skirmish
between protestors and law enforcement officials, law enforcement erected a
barricade across the Backwater Bridge, blocking through access on State Highway
1806. Plaintiffs, a group of tribal members and supporters, filed suit against various
state and county officials, alleging that the closure of Backwater Bridge and a nine-
mile section of road violated their constitutional rights. Defendants filed a motion
to dismiss, which the district court granted in part and denied in part. As relevant to
this appeal, the district court denied the motion as it relates to defendants’
entitlement to qualified immunity, concluding that the qualified immunity analysis
would be more properly decided at the summary judgment stage. Defendants filed
this interlocutory appeal, asserting that the district court erroneously denied the
motion to dismiss based on qualified immunity.
This Court “‘review[s] de novo the denial of a motion to dismiss on the basis
of qualified immunity,’ and must consider ‘whether the plaintiff has stated a
plausible claim for violation of a constitutional or statutory right and whether the
right was clearly established at the time of the alleged infraction.’” Dadd v. Anoka
Cnty., 827 F.3d 749, 754-55 (8th Cir. 2016) (citation omitted). “[Q]ualified
immunity is ‘an immunity from suit rather than a mere defense to liability.’” Watson
v. Boyd, 2 F.4th 1106, 1110 (8th Cir. 2021) (citation omitted). Accordingly, it “‘is
effectively lost if a case is erroneously permitted to go to trial,’ [and] law
enforcement officers are at least ‘entitled to a thorough determination of their claim
of qualified immunity if that immunity is to mean anything at all.’” Id. (citations
omitted). “Indeed, [the Supreme Court] ha[s] made clear that the ‘driving force’
behind creation of the qualified immunity doctrine was a desire to ensure that
‘“insubstantial claims” against government officials [will] be resolved prior to

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discovery.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (third alteration in
original) (citation omitted).
In its 101-page opinion and order, the district court devoted less than 3 pages
to the qualified immunity analysis. As to the first prong, the district court determined
that “the Plaintiffs have alleged facts showing violations of their constitutional right
to speech,” and, as to the second prong, the district court stated that “whether the
law was clearly established so that a reasonable official would know he or she was
violating the constitutional rights of another . . . appears to be the biggest contention
between the parties.” R. Doc. 88, at 98. Instead of deciding the clearly established
prong, however, the district court stated that
this case is an example of why “qualified immunity is often best
decided on a motion for summary judgment when the details of the
alleged deprivations are more fully developed.” Walker v. Schult, 717
F.3d 119, 1130 (2d Cir. 2013)[.] As the United States Supreme Court
has noted, “when qualified immunity is asserted at the pleading stage,
the precise factual basis for the plaintiff’s claim or claims may be hard
to identify” and “the answer [to] whether there was a violation may
depend on a kaleidoscope of facts not yet fully developed.” Pearson v.
Callahan, 555 U.S. 223, 238-39 (2009).
R. Doc. 88, at 100 (second alteration in original). “While a district court may address
the prongs in any order, it ‘may not deny qualified immunity without answering both
questions in the plaintiff’s favor.’” Watson, 2 F.4th at 1112 (citation omitted). The
district court’s failure to answer the clearly established inquiry was thus erroneous.
Defendants urge us to conduct the clearly established inquiry in the first instance as
it involves a purely legal question. We decline to do so without the benefit of the
district court’s analysis. See Burris v. Cobb, 808 F.3d 386, 388 (8th Cir. 2015)
(“The district court . . . did not address any of [defendants’ alternative] contentions,
and we believe that the alternative arguments for dismissal, and the responses
thereto, are best considered by the district court in the first instance.”). We therefore
remand to the district court with instructions to conduct the requisite clearly
established analysis.

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For the foregoing reasons, we reverse and remand for proceedings consistent
with this opinion.
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