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Ethan Marks v. Officer Benjamin Bauer
Citation: Not availableDocket: 23-1420
Court: Court of Appeals for the Eighth Circuit; July 12, 2024; Federal Appellate Court
Original Court Document: View Document
Ethan Daniel Marks, at 19 years old, suffered severe injuries—specifically a ruptured eyeball, fractured eye socket, and traumatic brain injury—after Minneapolis Police Officer Benjamin Bauer shot him with a chemical-filled projectile from a distance of five to ten feet. Marks filed a lawsuit against Bauer under 42 U.S.C. § 1983 for alleged violations of the Fourth and Fourteenth Amendments. The district court denied Bauer's motion for summary judgment regarding Marks' excessive force claim, citing genuine issues of material fact that precluded qualified immunity, leading to this interlocutory appeal. On May 28, 2020, following protests related to George Floyd's death, Marks and his mother went to assist in cleanup efforts near the Minneapolis Police Department's Third Precinct, where they encountered a large crowd, some of whom were throwing objects at police. Officer Bauer, part of a SWAT team responding to reports of violence, exited his vehicle and deployed a projectile launcher in response to the crowd's aggression. After a series of events involving Marks' mother attempting to provide aid to an injured woman and Marks confronting Officer Pobuda, who blocked her, Marks shouted at Officer Pobuda, leading to a physical altercation. Although Officer Pobuda deemed Marks no longer a threat and ceased using force, Officer Bauer believed a serious assault was occurring and, without warning, shot Marks in the face with a projectile that had a high exit muzzle velocity and released a harmful chemical agent upon impact. Marks suffered severe injuries, including the rupture of his right eyeball, a fractured eye socket, and a traumatic brain injury, resulting in legal blindness in that eye after being struck by a chemical-filled projectile from a 40-millimeter launcher used by Officer Bauer. Although classified as a 'less lethal' weapon, the manufacturer warns that it can cause serious injury or death. MPD SWAT officers are trained to target specific body zones to minimize risk, with Zone 3 (head and neck) being appropriate only when facing a deadly threat. Officer Bauer, who had been trained and qualified to use the launcher for six years, fired approximately 500 projectiles during the George Floyd protests, and the court deemed him an accurate shooter. Following the incident, the crowd reacted strongly, and Officer Bauer responded to their shouts. Within 30 seconds, the officers evacuated Marks and left the scene, failing to provide him aid or arrest him. The MPD referred the incident for potential criminal charges against Marks, but both the Hennepin County Attorney and the Minneapolis City Attorney's Office declined to pursue charges, citing insufficient evidence. In the subsequent legal action, Officer Bauer sought summary judgment claiming qualified immunity, stating his intention to hit Marks in the torso rather than the face. Officer Bauer introduced the argument that there was no seizure under the Fourth Amendment in his reply brief, which the district court deemed untimely and unpersuasive. The court denied his motion, ruling that Officer Bauer's use of force was not objectively reasonable regardless of his subjective intent. It identified a genuine dispute regarding whether Officer Bauer intended to use deadly force when he shot Marks. The court also concluded that even if the force were classified as non-deadly, it was unreasonable based on the circumstances faced by Officer Bauer. The court referenced legal precedents indicating that deadly force is justified only when there is a significant threat of death or serious injury, which was not the case when Officer Bauer shot Marks. The court emphasized that a reasonable officer would recognize that the force used was disproportionate to the perceived threat. In his appeal, Officer Bauer argued that the use of the projectile did not constitute a seizure and claimed the force was reasonable due to the severity of the crimes Marks was suspected of committing, asserting that Marks posed an immediate threat to Officer Pobuda in a rapidly evolving situation. The Eighth Circuit reviews qualified immunity claims de novo, which protects government officials from liability unless their actions violate a clearly established constitutional or statutory right. Marks carries the burden to demonstrate that Officer Bauer violated such a right and that it was clearly established at the time of the incident. A right is considered "clearly established" if it was sufficiently clear that a reasonable official would understand the conduct in question was unlawful. Regarding the seizure, Officer Bauer argued that deploying a projectile against an "assaultive protestor" does not constitute a seizure under the Fourth Amendment. To prove a Fourth Amendment violation, Marks must show both the occurrence of a seizure and that it was unreasonable. The term "seizure" implies some application of physical force to restrain movement, even if ultimately unsuccessful. Although previous cases did not clarify that the type of force applied to disperse a crowd affects the existence of a seizure, it was noted that Officer Bauer was not dispersing a crowd when he shot Marks. Video evidence indicated that prior to shooting Marks, Officer Bauer's use of projectiles was aimed at forming a perimeter to assist in evacuating a stabbing victim and managing the scene with another injured individual. Most of the crowd had dispersed, leaving a small group around an individual needing medical assistance. Officer Bauer testified that he used force against Marks to prevent what he perceived as a serious assault on Officer Pobuda, stating that he believed the situation could escalate. He deployed a projectile to restrain Marks, which he argued did not constitute a seizure. The Supreme Court's guidance in Brower is cited to assess whether a seizure occurred, emphasizing that the means used to stop an individual must be intentional. The projectile fired at Marks was intended to stop him, thus constituting a seizure, regardless of whether Marks was formally arrested. Previous cases, including Pollreis and Ludwig, support the conclusion that a seizure can occur even without an arrest. Officer Bauer's claim of using reasonable force is contested; he asserted he did not employ deadly force, as he aimed for Marks' torso, but the projectile inadvertently struck his face. Objective reasonableness is evaluated from Bauer's perspective at the moment of the seizure and must consider the overall circumstances, with a clear standard that deadly force is not reasonable without probable cause of an immediate threat. Summary: Summary judgment based on qualified immunity is inappropriate when the legality of an officer’s use of force is not conclusively established. Officer Bauer used a projectile from a less lethal launcher at close range aimed at Marks’ face, an area identified by MPD training as having high potential for serious injury. Although Officer Bauer claims he aimed at Marks’ torso, a genuine issue of material fact exists regarding his intent to use deadly force. Marks argues that Officer Bauer's training and the incident videos show him tracking Marks' head, contradicting Bauer's claims. The district court highlighted inconsistencies in Bauer’s deposition about his aim. Evidence suggests that Bauer's use of force could cause serious injury and that Marks was unarmed and retreating at the time of the incident. Despite Officer Bauer's justification that Marks posed an immediate threat due to alleged serious crimes, the video evidence does not clearly support this characterization. Marks' actions, which included an interaction with Officer Pobuda, remain ambiguous and are subject to interpretation. The decision by both the County and City Attorney's Offices not to charge Marks further undermines Bauer's claims. The reasonableness of Officer Bauer’s response must focus on the threat present at the moment of the shooting, not prior events. A reasonable jury could conclude that Marks was not an immediate threat at the time he was shot, as he had been pushed away and was stumbling backward, indicating that Bauer's use of force may have been excessive. A significant gap was created between two men after Officer Pobuda pushed one of them, allowing a bystander to step in without interference. Following this separation, Officer Pobuda deemed further force unnecessary. Resolving factual disputes in favor of Marks, it is asserted that Officer Bauer failed to prove that Marks posed an immediate threat when he shot an unarmed and falling Marks in the face. The burden of establishing the relevant facts for immunity lies with the party asserting it, and at the summary judgment stage, all reasonable inferences must favor the nonmoving party. Officer Bauer claimed the situation was tense and required a quick decision to shoot, but video evidence indicated the circumstances had improved since the officers arrived in a hostile environment. The officers managed to create a perimeter and safely assist injured individuals without crowd interference. Marks reacted to Officer Pobuda pushing his mother, who was aiding the injured, but this threat was quickly neutralized. The law indicates that even under rapidly evolving circumstances, officers must act based on what they know. The evidence suggested that a reasonable officer would recognize there was no need to use force as Marks was no longer a threat. Although a jury might side with Officer Bauer’s view of the incident, the evidence, viewed favorably for Marks, indicates a violation of his constitutional right against excessive force due to the close-range shooting. Additionally, Officer Bauer contended that it was not clearly established that his actions constituted excessive force; however, existing circuit precedent can demonstrate that a reasonable officer should recognize that such conduct violates constitutional rights against excessive force. Officers are liable for clear violations of established law but not for ambiguous situations. The court determines whether a constitutional right was clearly established. A plaintiff does not need to cite an identical case to prove unlawful conduct; it suffices that the unlawfulness is evident from existing law. Officers can be aware of their conduct's potential unlawfulness even in new circumstances. It is well-established that police cannot use deadly force against individuals who no longer pose an immediate threat. In this case, Officer Bauer's decision to shoot Marks, an unarmed man who was falling and posed no imminent threat, was unlawful. Officer Pobuda confirmed that after their interaction, Marks did not present a threat and no further force was deemed necessary. Officer Bauer argued his use of force was not deadly, but the situation indicated that less-lethal force could still result in death if misapplied. He acknowledged the potential lethality of the weapon used and recognized its risks. By May 2020, it was clearly established that using deadly force against a non-threatening suspect was unreasonable. The context further showed that the crowd was compliant and not given any dispersal orders, contrasting with prior cases where force was justified due to crowd control issues. The case contrasts with Bernini v. City of St. Paul, where there were indications of intent to breach a police line. Here, video evidence shows the crowd was non-hostile when Officer Bauer shot Marks, who was unarmed and retreating. This shooting provoked a subsequent escalation of hostility from the crowd. Viewing the evidence favorably for Marks, Officer Bauer's use of deadly force was disproportionate to any perceived threat. Citing Montoya v. City of Flandreau, the court emphasized that excessive force claims were established when officers used force against non-threatening individuals. In Johnson v. Carroll, the use of macing and forceful takedown against an unarmed individual posing minimal threat was deemed unreasonable. Rohrbough v. 586 F.3d 582 highlighted that the severity of a suspect's reaction to police action is for the jury to decide, noting that a reasonable officer would recognize excessive force in response to de minimis actions. The essential factor in excessive force cases is whether the suspect posed a realistic threat justifying the force used. Prior precedents established it was unreasonable to apply more than minimal force on non-threatening misdemeanants. Officer Bauer's justification based on a scuffle with Officer Pobuda must be evaluated by a jury, which will determine the nature and extent of the interaction between Marks and Officer Pobuda. Prosecutors from two offices chose not to charge Marks despite potential felony or misdemeanor charges for his conduct. Officer Pobuda, who interacted with Marks, deemed additional force unnecessary beyond pushing Marks with a riot baton. A reasonable jury could conclude that Marks was shot without posing a threat or fleeing. Conversely, a jury might side with Officer Bauer's view that his use of force was reasonable. Marks demonstrated that Officer Bauer applied excessive force by shooting him in the face with a chemical projectile at close range while Marks was already falling backward and no longer resisting. At the time of the incident, it was objectively unreasonable to use more than minimal force against a non-threatening individual who was not fleeing or resisting. The presence of disputed factual issues prevents a determination of qualified immunity for Officer Bauer. In the dissenting opinion, Judge Stras emphasizes the chaotic context of the incident, citing the violence surrounding the police during the riots after George Floyd's death. Officer Bauer's split-second decision to use a chemical round against Marks, who had just assaulted an officer, may not have clearly violated Marks's rights, as there was no precedent indicating his actions were unlawful under similar circumstances. The law of excessive force hinges on specific facts, allowing officers qualified immunity unless a clear precedent exists. Two cases, White v. Jackson and Bernini v. St. Paul, illustrate that the use of force by police officers can be justified under certain circumstances involving violent crowds. In White, following a police shooting in Ferguson, officers deployed smoke and tear gas to disperse a violent protest. A bystander who approached the officers was shot with bean bag rounds and rubber bullets, with the court ruling that a reasonable officer could perceive the individual as part of the threat. Similarly, in Bernini, officers confronted a crowd that was throwing projectiles and used rubber pellets to prevent them from advancing toward a police line, which was deemed reasonable due to the collective aggressive behavior of the crowd. In this context, the actions of Officer Bauer and the SWAT team were considered defensible, given the heightened danger from race-related protests. The court noted that Marks, who attacked an officer, presented a danger and therefore could be perceived as justifying the use of force. It emphasized that a reasonable officer, considering existing legal precedents, could interpret the cases as allowing, rather than prohibiting, the use of force. The court criticized an opposing view for being overly broad and lacking clarity regarding when deadly force is permissible, highlighting the need for specific legal standards in Fourth Amendment cases. It underscored that the qualified immunity standard relies on whether a reasonable officer could believe force was necessary, regardless of individual perceptions at the scene. The reliance on three other cases was deemed inadequate due to their lack of similar factual circumstances. Montoya v. City of Flandreau (2012) highlighted that the use of force by an officer was potentially excessive when tackling a woman who posed no threat, as she was merely arguing from a distance with her hands raised. The court noted the absence of any aggressive behavior or danger to officers before the takedown. Similarly, Johnson v. Carroll (2011) involved a woman who attempted to intervene in her nephew's arrest and was pushed down by officers. The court found the force unreasonable since there was no evidence she threatened or actively resisted the officers. Rohrbough v. Hall (2009) involved an officer who reacted to a minor push by punching the individual and taking him down. The court left it to a jury to determine if the officer's response to the minor provocation was excessive, noting that no one in that situation posed a threat to the officer's safety. Marks attempted to draw parallels to other cases where officers used deadly force against individuals who posed no immediate threat, but the court found these cases distinguishable. Officer Bauer, in contrast, faced a chaotic situation involving a violent crowd and injured bystanders, which justified his split-second decision to use a less-lethal launcher to prevent further violence. The court emphasized the importance of careful decision-making under pressure, warning that actions taken in such situations may be scrutinized later, even if the officer's life was at stake.