Vanessa Dundon v. Kyle Kirchmeier, 85 F.4th 1250

Background

Protest at Backwater Bridge (Highway 1806) during Dakota Access Pipeline construction; bridge closed and barricaded with dump trucks, concrete barriers, and barbed wire.
Unified Incident Command (Morton County Sheriff plus assisting agencies) responded; agency chiefs retained control and delegated force decisions to individual officers.
On Nov. 20, 2016, protesters pulled a dump truck off the bridge, hundreds gathered, some with shields and gas masks; officers warned crowd to vacate but remained on their side of the barricade.
Officers used tear gas, rubber bullets, lead-filled bean bags, and a fire truck hose to disperse the crowd; protesters threw canisters back and started brush fires.
Plaintiffs (protesters) sued ~100 unnamed officers under 42 U.S.C. § 1983 for excessive force (Fourth and Fourteenth Amendments), and sued Morton County, Stutsman County, City of Mandan, and three chiefs for municipal and supervisory liability; district court granted summary judgment for defendants.
Eighth Circuit reviewed qualified immunity for officers, Monell municipal liability, and supervisory liability of the chiefs.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether officers' use of force to disperse protesters constituted a "seizure" under the Fourth Amendment	Force that knocked protesters down or stopped their movement was a seizure (excessive force)	Force intended only to disperse does not constitute a Fourth Amendment seizure	Not clearly established in Nov. 2016 that dispersal force was a seizure; qualified immunity for officers affirmed
Whether municipalities (Morton, Stutsman, Mandan) are liable under Monell for an unconstitutional policy or failure to train on crowd-dispersal force	Municipal policies and training were inadequate and showed deliberate indifference, causing constitutional violations	Policies lawfully delegated force decisions to officers; no clearly established constitutional right so absence of training cannot show deliberate indifference	Municipalities entitled to summary judgment—no Monell liability established
Whether county sheriffs and police chief are liable as supervisors under § 1983 for deliberate indifference	Chiefs created or tolerated unconstitutional practices and failed to supervise/train their officers	Supervisors are liable only for their own misconduct and deliberate indifference; no clearly established right here	Supervisors entitled to summary judgment—no evidence of deliberate indifference

Key Cases Cited

Harlow v. Fitzgerald, 457 U.S. 800 (1982) (establishes qualified immunity framework)
Pearson v. Callahan, 555 U.S. 223 (2009) (two-step qualified-immunity inquiry)
Anderson v. Creighton, 483 U.S. 635 (1987) (clearly established right standard)
Ashcroft v. al-Kidd, 563 U.S. 731 (2011) (requirement that law be "beyond debate" to be clearly established)
Torres v. Madrid, 141 S. Ct. 989 (2021) (police bullets can effect a seizure when they hit the suspect)
Quraishi v. St. Charles County, 986 F.3d 831 (8th Cir. 2021) (use of tear gas to disperse not clearly established as seizure)
Martinez v. Sasse, 37 F.4th 506 (8th Cir. 2022) (push to repel entrant was not clearly established as a seizure)
Mitchell v. Kirchmeier, 28 F.4th 888 (8th Cir. 2022) (complaint survived motion to dismiss where protester was arrested and injured by bean bags)
Nelson v. City of Davis, 685 F.3d 867 (9th Cir. 2012) (pepperball dispersal held to be a seizure in that context)
Brendlin v. California, 551 U.S. 249 (2007) (traffic stop seizes all vehicle occupants)
Monell v. Department of Social Services, 436 U.S. 658 (1978) (municipal liability requires an official policy causing the violation)
Bd. of County Comm’rs v. Brown, 520 U.S. 397 (1997) (municipal failure to train requires deliberate indifference)
City of Canton v. Harris, 489 U.S. 378 (1989) (standards for failure-to-train liability)
Szabla v. City of Brooklyn Park, 486 F.3d 385 (8th Cir. 2007) (municipal liability requires a clearly established constitutional duty to show obvious need for training)
County of Sacramento v. Lewis, 523 U.S. 833 (1998) (Due Process "shocks the conscience" standard)
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (supervisory liability requires personal involvement or deliberate indifference)