8th Circuit again denies immunity in police clash

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A teenager sustained permanent blindness and a traumatic brain injury in a confrontation with a Minneapolis police officer in the days following the murder of George Floyd in 2020. After its initial judgment was vacated by the U.S. Supreme Court, the 8th U.S. Circuit Court of Appeals, in an opinion issued Feb. 12, again affirmed that qualified immunity would not be granted to the officer.

Three days after protests erupted after Floyd’s death, Ethan Marks and his mother went near the Minneapolis Police Department’s Third Precinct to help clean up damage from unrest. Hundreds of people were gathered when SWAT officers, including Officer Benjamin Bauer, responded to a reported stabbing. As their van entered the area, it was struck by rocks and frozen water bottles.

Bauer exited and fired his 40-millimeter launcher toward individuals throwing objects, then assisted officers evacuating the stabbing victim. Meanwhile, Marks’ mother, a registered nurse, attempted to help a woman reportedly injured by a baseball bat. Officer Jonathan Pobuda blocked her path. Marks intervened, shouting and striking Pobuda while attempting to grab his baton. Pobuda pushed him back, and a bystander stepped between them. At this point, Pobuda no longer viewed Marks as a threat.

Believing a serious assault was underway, Bauer raised his launcher and, within half a second, fired from approximately five to 10 feet away. The projectile struck Marks in the face, rupturing his eye, fracturing his socket, and causing a traumatic brain injury. This left him legally blind in one eye.

The Minneapolis Police Department referred Marks’ confrontation with Pobuda to the Hennepin County Attorney’s Office for possible felony charges, including assault and attempting to disarm an officer. After reviewing body camera footage and reports, the county attorney declined prosecution, finding no felony charges warranted. The case was then sent to the Minneapolis City Attorney’s Office for misdemeanor review. An independent prosecutor from the St. Paul City Attorney’s Office also declined to charge Marks, citing insufficient evidence.

Marks sued Brauer, alleging violations of the Fourth and 14th Amendments. Bauer sought summary judgment on qualified immunity grounds, arguing he aimed for Marks’ torso and not his face. He later claimed there was no Fourth Amendment seizure in which Marks’ movement was restrained. The district court rejected both arguments as untimely and meritless, holding that the force used was not objectively reasonable. The court found that there were genuine disputes about what Bauer intended when he fired the launcher. It also emphasized that deadly force is only justified when there is a significant threat of death or serious physical harm, and it concluded that such a threat was not present in this situation.

In 2024, the Eighth Circuit affirmed. However, in light of Barnes v. Felix, the United States Supreme Court vacated the judgment and remanded. In Barnes, the U.S. Supreme Court rejected the “moment-of-threat” framework for analyzing excessive force claims under the Fourth Amendment, finding that courts cannot narrow the totality-of-the-circumstances inquiry.

Upon remand, the 8th Circuit affirmed again, finding that it did not apply the “moment-of-threat” rule in its original opinion.

“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,” Judge Ralph Erickson wrote for the panel. “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.”

Because there were disputed material facts and legal questions cannot be resolved without determining the key factual issues, the panel determined that Bauer is not entitled to qualified immunity.

However, Judge David Stras dissented. “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,” Stras wrote.

“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 [or another’s] is at stake, because a court may step in later and second-guess your decision,’” Stras asserted.