Sam Wolk v. City of Brooklyn Center

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 23-2939
___________________________
Sam Wolk
Plaintiff - Appellee
v.
City of Brooklyn Center; Tim Gannon, Brooklyn Center Police Chief, in his
individual capacity; Tony Gruenig, Brooklyn Center Police Commander, in his
individual capacity
Defendants
David Hutchinson, Hennepin County Sheriff, in his individual capacity; Hennepin
County
Defendants - Appellants
Minnesota Department of Natural Resources; Rodman Smith, Minnesota
Department of Natural Resources Director of Enforcement Colonel, in his
individual capacity; Aaron Kahre; John Does, 1-100, in their individual capacities
Defendants
___________________________
No. 23-2940
___________________________
Sam Wolk
Plaintiff - Appellee
v.

-- 1 of 10 --

-2-
City of Brooklyn Center; Tony Gruenig, Brooklyn Center Police Commander, in
his individual capacity
Defendants - Appellants
Tim Gannon, Brooklyn Center Police Chief, in his individual capacity; David
Hutchinson, Hennepin County Sheriff, in his individual capacity; Hennepin
County; Minnesota Department of Natural Resources; Rodman Smith, Minnesota
Department of Natural Resources Director of Enforcement Colonel, in his
individual capacity; Aaron Kahre; John Does, 1-100, in their individual capacities
Defendants
___________________________
No. 23-2943
___________________________
Sam Wolk
Plaintiff - Appellee
v.
City of Brooklyn Center; Tim Gannon, Brooklyn Center Police Chief, in his
individual capacity; Tony Gruenig, Brooklyn Center Police Commander, in his
individual capacity; Hennepin County; David Hutchinson, Hennepin County
Sheriff, in his individual capacity
Defendants
Minnesota Department of Natural Resources; Aaron Kahre, Minnesota Department
of Natural Resources Incident Commander Captain, in his individual capacity;
Rodman Smith, Minnesota Department of Natural Resources Director of
Enforcement Colonel, in his individual capacity
Defendants - Appellants
John Does, 1-100, in their individual capacities
Defendants

-- 2 of 10 --

-3-
___________________________
No. 23-2944
___________________________
Sam Wolk
Plaintiff - Appellee
v.
City of Brooklyn Center
Defendant
Tim Gannon, Brooklyn Center Police Chief, in his individual capacity
Defendant - Appellant
Tony Gruenig, Brooklyn Center Police Commander, in his individual capacity;
David Hutchinson, Hennepin County Sheriff, in his individual capacity; Hennepin
County; Minnesota Department of Natural Resources; Rodman Smith, Minnesota
Department of Natural Resources Director of Enforcement Colonel, in his
individual capacity; Aaron Kahre; John Does, 1-100, in their individual capacities
Defendants
____________
Appeal from United States District Court
for the District of Minnesota
____________
Submitted: March 12, 2024
Filed: July 12, 2024
____________
Before BENTON, ERICKSON, and KOBES, Circuit Judges.
____________
ERICKSON, Circuit Judge.

-- 3 of 10 --

-4-
This case arises out of protests that occurred in Brooklyn Center, Minnesota
following the fatal police shooting of Daunte Wright during a traffic stop. Sam Wolk
brought this action under 42 U.S.C. § 1983, alleging claims for First and Fourth
Amendment violations and civil conspiracy against a variety of law enforcement
agencies and officials for injuries sustained while protesting. The district court
denied the defendants’ motions to dismiss. We affirm in part and reverse in part.
I. BACKGROUND
In the days following the April 11 shooting of Wright, protests and
demonstrations occurred in Brooklyn Center, Minnesota. The amended complaint
alleges that Brooklyn Center Police Department (“BCPD”) Police Chief Tim
Gannon, BCPD Commander Tony Gruenig, and Hennepin County Sheriff David
Hutchinson were in charge of law enforcement’s tactical operations during the
protests and made decisions regarding use of force against protesters. Colonel
Rodman Smith and Captain Aaron Kahre of the Department of Natural Resources
(“DNR”) coordinated DNR’s response to the protests, with Kahre serving as the
DNR incident commander on the scene.
According to Wolk, each of these agencies and individuals coordinated with
one another and authorized or acquiesced in the violations of Wolk’s rights. More
specifically, in response to law enforcement’s handling of protests on April 11, the
Brooklyn Center City Council passed a resolution limiting law enforcement’s use of
certain crowd control tactics, including tear gas and rubber bullets. It also
recommended that BCPD Police Chief Gannon resign, which Gannon did on April
13, 2021. Gruenig was named interim police chief. Wolk alleges that despite the
City Council’s resolution, officers from the BCPD, Hennepin County, and DNR
continued to use tear gas, flashbang grenades, pepper spray, and rubber bullets
against protesters and the DNR employed additional tactics, including throwing
some protesters to the ground for arrest.

-- 4 of 10 --

-5-
Wolk, while at protests on April 13 and 14, 2021, was subjected to tear gas,
flashbang grenades, and other crowd-control munitions as he protested outside the
Brooklyn Center police station located on North Humboldt Avenue. While Wolk
was protesting on April 14 at the police station, unknown officers behind a chain
link fence around the police station began pepper spraying protesters and ordering
them to back up. Wolk claims the officers failed to allow time for protesters to
comply with their orders prior to deploying pepper spray. Wolk was shot in the knee
with a rubber bullet by an unknown officer who fired through the fence less than 10
feet away while Wolk attempted to move away. Wolk alleges chronic knee pain and
has been referred to a chronic pain specialist for long-term care.
Wolk commenced this action, alleging claims for Fourth Amendment
excessive force, Fourth Amendment failure to intervene, First Amendment
retaliation, Fourteenth Amendment due process violations, and civil conspiracy
against Gannon, Gruenig, Hutchinson, Smith, Kahre, BCPD, and Hennepin County.
Wolk also alleged claims for Fourth Amendment excessive force, First Amendment
retaliation, and Fourteenth Amendment due process violations against the DNR.
The defendants moved for dismissal, which the district court granted with respect to
the due process claim, denying all other claims. This appeal followed.
II. DISCUSSION
a. Sovereign Immunity – DNR
We have jurisdiction over interlocutory appeals involving Eleventh
Amendment immunity, Johnson v. Griffin, 69 F.4th 506, 510 (8th Cir. 2023), which
we review de novo, Fryberger v. Univ. of Ark., 889 F.3d 471, 473 (8th Cir. 2018).
The district court denied DNR’s motion to dismiss but failed to address its Eleventh
Amendment arguments. We exercise our discretion to decide the issue sua sponte
and reverse. McCrary v. Stifel, Nicolaus & Co., Inc., 687 F.3d 1052, 1058 (8th Cir.
2012).

-- 5 of 10 --

-6-
The Eleventh Amendment bars suits by plaintiffs against state agencies when
the state has not consented to suit. Holloway v. Conger, 896 F.2d 1131, 1136 (8th
Cir. 1990). The doctrine of Ex parte Young provides a narrow exception to Eleventh
Amendment immunity allowing suits for prospective injunctive relief against state
officials sued in their official capacities, but not suits for prospective injunctive relief
against state agencies. Monroe v. Ark. State Univ., 495 F.3d 591, 594 (8th Cir.
2007) (discussing Ex parte Young, 209 U.S. 123 (1908)).
The DNR, a state agency, has not consented to suit. Ex parte Young does not
apply because Wolk sued DNR officials Kahre and Smith in their individual
capacities alone. Wolk’s claims against the DNR are barred by the Eleventh
Amendment, and we reverse the district court’s denial of DNR’s motion to dismiss.
b. Qualified Immunity – Supervisory Defendants
We have jurisdiction over interlocutory appeals involving qualified immunity
and review the denial of a motion to dismiss on this basis de novo. Scott v.
Tempelmeyer, 867 F.3d 1067, 1070 (8th Cir. 2017).
The district court found that Wolk sufficiently alleged claims under § 1983
for excessive force, for failure to intervene, retaliation, and conspiracy to violate
constitutional rights against defendants Gannon, Gruenig, Hutchinson, Kahre, and
Smith (“Supervisory Defendants”) under a theory of supervisory liability. The
Supervisory Defendants contend on appeal that Wolk’s claims are barred by
qualified immunity, citing the lack of a clearly established constitutional violation.
See Baude v. Leyshock, 23 F.4th 1065, 1071 (8th Cir. 2022).
i. Supervisory Liability - Gannon
Wolk has failed to state a claim of supervisory liability against Gannon.
Having resigned before Wolk was injured, Gannon could not have directly caused
Wolk’s injuries or have supervised the conduct giving rise to Wolk’s injuries. See

-- 6 of 10 --

-7-
Parrish v. Ball, 594 F.3d 993, 1001 (8th Cir. 2010) (finding that a plaintiff establishes
supervisory liability under 42 U.S.C. § 1983 by showing the supervisor’s direct
participation in the constitutional violation, or the supervisor’s failure to supervise
or train the actor who caused the deprivation). We reverse the district court’s denial
of Gannon’s motion to dismiss.
ii. Fourth Amendment Claims
Wolk’s Fourth Amendment excessive force and failure to intervene claims
against the Supervisory Defendants are also insufficient as a matter of law. Both
claims require that law enforcement effectuate an illegal seizure. Williams v. City
of Burlington, 27 F.4th 1346, 1351 (8th Cir. 2022); see Robinson v. Payton, 791
F.3d 824, 829 (8th Cir. 2015). Wolk alleged that the Supervisory Defendants
directed law enforcement’s response to the protests and authorized the
indiscriminate use of tear gas, flashbang grenades, pepper spray, and rubber bullets
to disperse the crowds, which ultimately resulted in Wolk’s injuries. However, this
Court concluded last year—more than two years after the incident giving rise to the
claims in this case—that it was not clearly established that the use of force with the
intent to disperse or repel a crowd constituted a seizure under the Fourth
Amendment. See Dundon v. Kirchmeier, 85 F.4th 1250, 1256-57 (8th Cir. 2023)
(distinguishing force used by officers with intent to apprehend with force used by
officers with intent to disperse or repel). Wolk has not shown it was clearly
established as of April 2021 that officers effect a seizure when they use force to
disperse protestors. And while Wolk’s complaint generally alleges that some
protesters were thrown to the ground for arrest, which tends to show an intent to
apprehend rather than disperse, Wolk does not allege that these actions caused
Wolk’s injuries. The Supervisory Defendants are entitled to qualified immunity on
Wolk’s Fourth Amendment excessive force and failure to intervene claims, and we
reverse the district court’s denial of their motion to dismiss on this basis.

-- 7 of 10 --

-8-
iii. First Amendment Claims
Wolk’s First Amendment retaliation claims against the Supervisory
Defendants require a “distinct” analysis from Wolk’s Fourth Amendment claims,
Aldridge v. City of St. Louis, 75 F.4th 895, 900 n.4 (8th Cir. 2023), because
“retaliatory conduct does not itself need to be a constitutional violation in order to
be actionable.” Cody v. Weber, 256 F.3d 764, 771 (8th Cir. 2001). The three
elements of a First Amendment retaliation claim are: (1) the plaintiff engaged in
protected activity, (2) the government took adverse action against the plaintiff that
would chill a person of ordinary firmness from continuing in the activity, and (3) the
adverse action was motivated at least in part by the exercise of the protected activity.
Green v. City of St. Louis, 52 F.4th 734, 739 (8th Cir. 2022).
This Court has expressly found that protesting a police department is protected
First Amendment expression and that the deployment of tear gas or rubber bullets
towards individuals is an adverse action. Id. With respect to the third element, the
plaintiff must show that law enforcement’s response was driven by animus, as
opposed to officers’ understanding of their official duties, however mistaken.
Mitchell v. Kirchmeier, 28 F.4th 888, 896 (8th Cir. 2022). This determination is
generally a fact question. De Mian v. City of St. Louis, 86 F.4th 1179, 1182 (8th
Cir. 2023).
Wolk alleged that prior to curfew and without warning, law enforcement
ordered Wolk and other protesters outside Brooklyn Center Police headquarters to
back up, and then pepper sprayed them through the chain link fence before Wolk
had the chance to comply. Wolk also alleged that an officer shot Wolk in the knee
with a rubber bullet through the chain link fence while Wolk was attempting to move
away. More facts are necessary to determine whether law enforcement singled Wolk
out due to retaliatory animus or was simply acting according to an understanding of
its responsibilities. Compare Green, 52 F.4th at 740 (finding that plaintiff’s
allegation that she was not committing a crime when law enforcement tear gassed
her during a protest was sufficient to survive motion to dismiss on her claim of

-- 8 of 10 --

-9-
retaliation for First Amendment activity) with Mitchell, 28 F.4th at 896-97
(dismissing claim for First Amendment retaliation when officers shot plaintiff with
bean bags and arrested him after he stood in their way and ignored a countdown
warning). We affirm the district court’s denial of qualified immunity on Wolk’s
First Amendment retaliation claims against all Supervisory Defendants except
Gannon. See Baude, 23 F.4th at 1071 (explaining that appellate courts do not have
jurisdiction to resolve factual disputes in appeals involving qualified immunity).
iv. Civil Conspiracy
There can be no civil conspiracy without an underlying constitutional
violation. Riddle v. Riepe, 866 F.3d 943, 949 (8th Cir. 2017). Wolk’s failure to
state a Fourth Amendment claim precludes Wolk’s related civil conspiracy claim.
With regard to Wolk’s civil conspiracy claim pertaining to First Amendment
retaliation, the amended complaint’s conclusory allegation that defendants
coordinated with one another regarding their response to the protests is insufficient
to plausibly show the officers reached an agreement. See Murray v. Lene, 595 F.3d
868, 870 (8th Cir. 2010) (stating that a conspiracy claim requires allegations of
specific facts showing a “meeting of the minds” among the alleged conspirators);
see also Mendoza v. U.S. Immigration & Customs Enf’t, 849 F.3d 408, 422 (8th Cir.
2017) (finding that mere cooperation between entities is not enough to establish a
meeting of the minds). Likewise, Wolk’s conclusory allegations that many of the
Supervisory Defendants controlled operations during the relevant time periods
and/or authorized constitutional violations lack detail and specificity to show a
meeting of the minds. We reverse the district court’s denial of the Supervisory
Defendants’ motion to dismiss Wolk’s conspiracy claims.
c. Monell Liability – Municipal Defendants
While the district court denied BCPD and Hennepin County’s (the “Municipal
Defendants”) motions to dismiss, it failed to address the merits of Wolk’s Monell

-- 9 of 10 --

-10-
claims against the Municipal Defendants. The district court’s omission does not
deprive us of jurisdiction over Monell claims that are inextricably intertwined with
the defense of qualified immunity. See Williams v. Jackson, 600 F.3d 1007, 1011
(8th Cir. 2010). Here, we found no individual liability on the Fourth Amendment-
related claims or the First Amendment conspiracy claim, which is required for
municipal liability to attach, so the claims are inextricably linked. See Muir v.
Decatur Cnty., 917 F.3d 1050, 1053 (8th Cir. 2019) (stating a claim is inextricably
intertwined with a qualified immunity claim if resolution of the latter necessarily
resolves the former); see also Johnson v. City of Ferguson, 926 F.3d 504, 506 (8th
Cir. 2019) (en banc). We reverse the district court’s denial of Municipal Defendants’
motion to dismiss the municipal liability claims for Fourth Amendment excessive
force, Fourth Amendment failure to intervene, and conspiracy to violate First and
Fourth Amendment rights.
In contrast, “uphold[ing] the district court’s denial of qualified immunity for
the [o]fficers” on the First Amendment retaliation claim “does not resolve” whether
the Municipal Defendants are entitled to dismissal of that claim for municipal
liability. Manning v. Cotton, 862 F.3d 663, 671 (8th Cir. 2017). We lack subject
matter jurisdiction over Hennepin County and BCPD’s appeal of the denial of their
motion to dismiss regarding the First Amendment retaliation claim. Watson v.
Boyd, 2 F.4th 1106, 1114 (8th Cir. 2021).
III. CONCLUSION
For the foregoing reasons, we affirm the district court’s denial of qualified
immunity to Supervisory Defendants Gruenig, Hutchinson, Kahre, and Smith on
Wolk’s First Amendment retaliation claim, and find we have no jurisdiction over the
district court’s denial of Municipal Defendants’ BCPD and Hennepin County’s
motion to dismiss the First Amendment retaliation claim. We reverse the district
court on all other claims and remand for further proceedings not inconsistent with
this opinion.
______________________________

-- 10 of 10 --