Monica Perkins v. City of Des Moines

United States Court of Appeals
For the Eighth Circuit
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No. 24-1375
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Monica Perkins
Plaintiff - Appellant
v.
City of Des Moines; Dana Wingert, Individually and in his capacity as Chief of the
Des Moines Police Department; Rodell Nydam, Individually and in his capacity as
Police Officer of the Des Moines Police Department; Scott Newman, Individually
and in his capacity as Police Officer of the Des Moines Police Department; Jason
Tart, Individually and in his capacity as Deputy of the Polk County Sheriff’s
Office
Defendants - Appellees
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Appeal from United States District Court
for the Southern District of Iowa
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Submitted: May 13, 2025
Filed: March 5, 2026
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Before BENTON, KELLY, and GRASZ, Circuit Judges.
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GRASZ, Circuit Judge.
This case centers on the use of force deployed by police around the time of a
May 2020 protest-turned-riot in Des Moines, Iowa. Deputy Jason Tart was carrying

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out orders to clear people from the area after rioters had looted a mall. Deputy Tart
shot Monica Perkins’s hand with a less-lethal impact round while she stood outside
her vehicle on a nearby road arguing with another driver. Perkins sued the City of
Des Moines and police officials, including Deputy Tart. The district court1 granted
summary judgment on all federal and state claims in favor of the government
officials. Perkins appeals. We affirm.
I. Background
At the end of May 2020, following the death of George Floyd in Minneapolis,
the City of Des Moines, Iowa experienced consecutive days of protests that turned
into rioting. On May 31, protesters gathered in the parking lot of Merle Hay Mall.
Some of those protesting eventually started rioting and looting businesses in the
mall. A special team of officers — consisting of Sergeant Rodell Nydam as
commanding officer, Officer Scott Newman as team leader, and Deputy Tart as the
team’s less-lethal munitions expert — was deployed to assist other officers with
stopping the chaos and controlling the crowd.
When the team arrived at the mall, police command staff informed the team
that dispersal orders had been given but the crowd continued to grow after the orders.
Command staff instructed the team to clear the area and authorized it to use less-
lethal force. The team had several types of less-lethal munitions, including tear gas
and impact rounds. An impact round is a type of less-lethal round that is projected
with a sponge tip that strikes the target.
The team used a Bearcat, an armored vehicle with a turret on the roof in which
an officer can stand and view the surrounding area. The team drove around the mall
parking lot with Deputy Tart deploying less-lethal munitions from the Bearcat’s
turret. The team first cleared the area near the mall, then moved to other parts of the
1 The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.

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parking lot closer to Merle Hay Road, the nearby four-lane road. As the team carried
out its task, some people crossed Merle Hay Road to other parking lots rather than
leaving the area entirely. Vehicles continued driving through the parking lot and
steady traffic continued on Merle Hay Road. The team continued to patrol the
parking lot to clear the people that remained and to discourage people from
returning.
Meanwhile, Perkins and her daughter attended a vigil for George Floyd
elsewhere in Des Moines. After the vigil, they decided to go to a restaurant on Merle
Hay Road. Upon driving into the area, they noticed large crowds. Perkins’s
daughter, who was driving, stated at the time that people were “looting,” “tearin’ up
Merle Hay,” and “trying to rob the bank.” The two also observed or heard tear gas
being deployed and noted a police SWAT presence. When they arrived at the
restaurant, they found it was closing because of violence in the area. They then
returned to Merle Hay Road and drove south, eventually stopping at an intersection
of Merle Hay Road and an entrance to the Merle Hay Mall parking lot. At the
intersection, they interacted with a police officer, whose vehicle was blocking an
entrance to the mall parking lot.
At that time, an argument arose between Perkins and another driver. Perkins
and her daughter appealed to the officer, claiming the other driver was making racist
comments. The officer instructed them, as revealed by the audio from dashcam
footage, not to let their dog out and to get in their car.2 Both vehicles drove to the
next intersection, where Perkins’s daughter stopped in the far-right lane closest to
the Merle Hay Mall parking lot. The other driver stopped in the middle lane.
Perkins’s daughter then got out of her vehicle and began recording the other driver
and commenting about him.
2 Perkins denies the officer ordered her and her daughter to get back in their
car, claiming the officer told them to move along.

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Around this time, the Bearcat team was moving north through the Merle Hay
Mall parking lot near Merle Hay Road toward a group of individuals standing in the
parking lot. The group fled from the Bearcat, scattering throughout the parking lot
and surrounding area. Some individuals ran through the grass between the parking
lot and Merle Hay Road, eventually crossing the road and weaving between stopped
traffic. As the Bearcat team continued in the direction of the fleeing individuals,
Deputy Tart deployed a tear-gas cannister in the vicinity of a protester holding a sign
and kneeling near the parking lot. After the tear-gas cannister was deployed, Deputy
Tart fired a single impact round at Perkins. The round struck Perkins in her left
hand, breaking her finger.
When Deputy Tart fired, Perkins was approximately sixty to seventy-five feet
away from him and standing on the road outside her daughter’s vehicle. As Perkins
describes the situation, she was verbally confronting another driver, walking back
and forth between her daughter’s vehicle and the other driver’s vehicle. She claims
she was returning to her daughter’s vehicle but then turned to address the other driver
again when she was struck. After she was hit, Perkins picked up her phone, got back
in her daughter’s vehicle, and drove away. The Bearcat team, meanwhile, continued
patrolling and clearing the area.
Perkins eventually sued the City of Des Moines, its Chief of Police, Deputy
Tart, Sergeant Nydam, and Officer Newman, alleging federal and state claims.
Defendants moved for summary judgment on all claims, which the district court
granted.
Relevant for this appeal are the district court’s rejections of Perkins’s
excessive force claim under the Fourth Amendment against Deputy Tart, her
substantive due process claim under the Fourteenth Amendment against Deputy
Tart, and her failure-to-intervene claim under the Fourth Amendment against
Sergeant Nydam and Officer Newman. The district court determined that Perkins
was not “seized” for purposes of the Fourth Amendment, and even if she was,
Deputy Tart was entitled to qualified immunity. The district court also determined

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Deputy Tart’s conduct did not shock the conscience as necessary to show a
substantive due process violation, and even if it did, he was entitled to qualified
immunity. Lastly, the court granted summary judgment in favor of Sergeant Nydam
and Officer Newman because there was no underlying constitutional violation and
therefore Perkins could not prevail under her failure-to-intervene theory. On appeal,
Perkins argues the district court erred in granting summary judgment on these
claims. She contends Deputy Tart’s use of force was an unreasonable seizure under
the Fourth Amendment, Deputy Tart’s conduct shocked the conscience in violation
of the Fourteenth Amendment, and Sergeant Nydam and Officer Newman failed to
intervene in Deputy Tart’s unconstitutional conduct.
II. Analysis
We review de novo a district court’s grant of summary judgment based on
qualified immunity. De Mian v. City of St. Louis, 86 F.4th 1179, 1182 (8th Cir.
2023). To overcome qualified immunity, Perkins “must show that the officers
violated a constitutional right, and that the unlawfulness of their conduct was clearly
established at the time.” Dundon v. Kirchmeier, 85 F.4th 1250, 1255 (8th Cir. 2023).
“For a right to be clearly established, the ‘contours of the right must be sufficiently
clear that a reasonable official would understand that what he is doing violates that
right.’” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).3
A. Unreasonable Seizure
The Fourth Amendment protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and
seizures . . . .” U.S. Const. amend. IV. This constitutional protection against
unreasonable seizures includes protection against the use of excessive force. See
Graham v. Connor, 490 U.S. 386, 395 (1989); Burbridge v. City of St. Louis, 2 F.4th
3 Though Perkins argues that the doctrine of qualified immunity should be
overturned, we are bound by Supreme Court and Eighth Circuit precedent. Graham
v. Barnette, 5 F.4th 872, 880 n.3 (8th Cir. 2021).

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774, 780 (8th Cir. 2021). Whether Deputy Tart violated the Fourth Amendment in
this situation presents two questions: (1) whether he seized Perkins within the
meaning of the Fourth Amendment; and (2) if he did, whether the seizure was
unreasonable.
Our analysis begins and ends with the “threshold question” of whether Deputy
Tart “seized” Perkins “within the meaning of the Fourth Amendment.” Dundon, 85
F.4th at 1255. Deputy Tart did not seize Perkins, so her Fourth Amendment claim
fails.
In coming to this conclusion, we are guided by the Supreme Court’s decision
in Torres v. Madrid, 141 S. Ct. 989 (2021). There, the Court addressed the question
of “whether the application of physical force is a seizure if the force, despite hitting
its target, fails to stop the person.” Id. at 995. The Court answered that question in
the affirmative, “hold[ing] that the application of physical force to the body of a
person with intent to restrain is a seizure even if the person does not submit and is
not subdued.” Id. at 1003. Focusing on the requirement of intent to restrain included
in the Court’s interpretation of seizure, the Court stressed that “[a]ccidental force
will not qualify.” Id. at 998. “Nor will force intentionally applied for some other
purpose satisfy this rule.” Id. The “appropriate inquiry is whether the challenged
conduct objectively manifests an intent to restrain.” Id. (emphasis in original).
When considering the “reasonableness of police force,” we analyze the
totality of the circumstances. Barnes v. Felix, 145 S. Ct. 1353, 1358 (2025). So, in
determining whether Deputy Tart applied physical force to Perkins with an intent to
restrain, we look at all facts and circumstances surrounding the incident. See id.
Cf. Torres, 141 S. Ct. at 998 (“[T]he amount of force remains pertinent in assessing
the objective intent to restrain[.]”).
Deputy Tart’s conduct at issue here did not “objectively manifest[] an intent
to restrain” Perkins. See Torres, 141 S. Ct. at 998. Instead, the totality of
circumstances demonstrates “force intentionally applied for some other purpose.”

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See id. Law enforcement had given dispersal orders to those in the area. The Bearcat
team had been dispersing people under specific orders to clear the area experiencing
a riot and to use less-lethal force like tear gas and impact rounds. The team was not
pursuing individuals to arrest them; it was maneuvering throughout the parking lot
to disperse the crowd and to establish control of the area. The video footage shows
there were groups of individuals running through the parking lot, near the Bearcat,
and across the busy road. Deputy Tart was strategically deploying less-lethal force
to disperse those in the area when he deployed one less-lethal impact round at
Perkins, striking her hand, while she was approximately sixty to seventy-five feet
away standing in the middle of a busy four-lane road. Perkins’s counsel conceded
at oral argument that this did not constitute deadly force. Also, after being struck,
Perkins picked up her phone and left without further interaction with Deputy Tart or
any other officers. Perkins has failed to affirmatively satisfy the “threshold
question” of whether she was “seized within the meaning of the Fourth
Amendment.” Dundon, 85 F.4th at 1255. Thus, Perkins has failed to show that
Deputy Tart violated a constitutional right, and he is therefore entitled to qualified
immunity on her Fourth Amendment excessive force claim.
B. Substantive Due Process
Perkins also asserts a Fourteenth Amendment excessive force claim against
Deputy Tart, alleging he violated her substantive due process rights. “To establish
a violation of substantive due process rights by an executive official, a plaintiff must
show (1) that the official violated one or more fundamental constitutional rights, and
(2) that the conduct of the executive official was shocking to the ‘contemporary
conscience.’” Truong v. Hassan, 829 F.3d 627, 631 (8th Cir. 2016) (quoting
Flowers v. City of Minneapolis, 478 F.3d 869, 873 (8th Cir. 2007)). “‘Only the most
severe violations of individual rights that result from the brutal and inhumane abuse
of official power rise’ to the ‘conscience-shocking level.’” Stearns v. Wagner, 122
F.4th 699, 704 (8th Cir. 2024) (quoting White v. Smith, 696 F.3d 740, 757–58 (8th
Cir. 2012)).

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For a Fourteenth Amendment excessive force claim, “[p]roof of intent to harm
is usually required, but in some cases, proof of deliberate indifference, an
intermediate level of culpability, will satisfy this substantive due process threshold.”
Truong, 829 F.3d at 631. The lower standard of deliberate indifference applies only
when actual deliberation is practical, like when officers can make unhurried
judgments. See id. Here, Deputy Tart faced an evolving situation with protesters
and rioters running throughout the area as he was tasked to disperse them. The lower
deliberate indifference standard does not apply because Deputy Tart “lacked ‘the
benefit of time to make an unhurried judgment.’” See Stearns, 122 F.4th at 704
(brackets omitted) (quoting Truong, 829 F.3d at 631).
Reviewing her claim under the higher standard, we agree with the district
court that Perkins failed to set forth sufficient evidence showing Deputy Tart acted
with the requisite intent to harm. Deputy Tart was operating under orders to disperse
individuals from the area. He was authorized to use less-lethal force to do so, and
the firing of one less-lethal impact round at Perkins’s hand in these circumstances
was not a “brutal and inhumane abuse of official power ris[ing]’ to the ‘conscience-
shocking level.’” Id. (quoting White, 696 F.3d at 757–58). Perkins has failed to
show a substantive due process violation, and Deputy Tart is therefore entitled to
qualified immunity on her Fourteenth Amendment excessive force claim.
C. Failure to Intervene
Lastly, Perkins argues Sergeant Nydam and Officer Newman violated the
Fourth Amendment because they knew of and had the opportunity to stop the use of
force against her. An officer can violate the Fourth Amendment by failing to stop
an unconstitutional use of excessive force. Hollingsworth v. City of St. Ann, 800
F.3d 985, 991 (8th Cir. 2015). But because Deputy Tart did not commit a
constitutional violation, Perkins cannot prevail on her failure-to-intervene claim.
See Zubrod v. Hoch, 907 F.3d 568, 580 (8th Cir. 2018). Therefore, Sergeant Nydam
and Officer Newman are entitled to summary judgment.

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III. Conclusion
For the foregoing reasons, we affirm.
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