Ethan Marks v. Officer Benjamin Bauer, 107 F.4th 840

During protests in Minneapolis in May 2020, Ethan Marks and his mother attempted to offer medical aid near the police perimeter around an injured individual.
An altercation occurred between Marks and Minneapolis Police Officer Pobuda after Marks’ mother was blocked from helping; Marks shouted, appeared to strike Pobuda, and grabbed at his baton.
Officer Bauer, perceiving a threat, shot Marks in the face from 5–10 feet away with a 40mm chemical-filled projectile, inflicting severe eye and brain injuries.
Marks was unarmed, stumbling backward, and no longer perceived as a threat by Officer Pobuda at the time he was shot.
Marks sued Officer Bauer under § 1983 for excessive force in violation of the Fourth and Fourteenth Amendments; the district court denied Bauer’s motion for qualified immunity, finding factual disputes precluded summary judgment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was there a seizure under the Fourth?	Force applied to restrain Marks constituted a seizure.	Force was not enough to be a seizure under the Fourth Amendment.	Shooting Marks with a projectile to stop him was a seizure.
Was the use of force objectively reasonable?	Marks no longer posed a threat; force was excessive and disproportionate.	Marks posed an immediate threat during a tense, evolving situation; force was reasonable.	Genuine issues exist; viewed favorably to Marks, force was not objectively reasonable.
Was the law clearly established?	Precedent made clear it’s unlawful to use deadly/excessive force against non-threatening suspects.	No clearly established law applied in these circumstances; prior cases support immunity.	It was clearly established that using high/intermediate force was unreasonable in this context.
Qualified immunity	Not available where facts, viewed in plaintiff's favor, show violation of a clearly established right.	Officer entitled to qualified immunity due to lack of clear precedent.	Qualified immunity denied; factual disputes preclude summary judgment.

California v. Hodari D., 499 U.S. 621 (1991) (seizure includes any application of physical force to restrain movement)
Brower v. Cnty. of Inyo, 489 U.S. 593 (1989) (seizure occurs when the means employed is intended to stop movement)
Graham v. Connor, 490 U.S. 386 (1989) (excessive force claims judged by objective reasonableness standard)
Montoya v. City of Flandreau, 669 F.3d 867 (8th Cir. 2012) (force against non-threatening misdemeanant may be excessive)
Johnson v. Carroll, 658 F.3d 819 (8th Cir. 2011) (unreasonable force used on minimally threatening, unarmed person)
Rohrbough v. Hall, 586 F.3d 582 (8th Cir. 2009) (jury decides severity of suspect’s reaction and reasonableness of force)
Cole Est. of Richards v. Hutchins, 959 F.3d 1127 (8th Cir. 2020) (deadly force not permitted where suspect no longer poses immediate threat)