Marcus Mitchell v. Kyle Kirchmeier ( 2022 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 21-1071
___________________________
Marcus Mitchell
Plaintiff - Appellant
v.
Morton County Sheriff Kyle Kirchmeier; Morton County; City of Bismarck;
Morton County Sheriff’s Deputy George Piehl; Bismarck Police Officer Tyler
Welk; North Dakota Highway Patrol Sergeant Benjamin Kennelly; John Does 1-2
Defendants - Appellees
------------------------------
Institute for Justice; National Congress of American Indians; Erwin Chemerinsky;
Tabatha Abu El-Haj; Genevieve Lakier; Lyrissa Lidsky, Dean; Kermit Roosevelt;
Amanda Shanor; Steven H. Shiffrin; Geoffrey Stone; Nadine Strossen; Laura
Weinrib; Howard University School of Law Civil Rights Clinic; Cato Institute
Amici on Behalf of Appellant(s)
____________
Appeal from United States District Court
for the District of North Dakota - Western
____________
Submitted: December 14, 2021
Filed: March 14, 2022
____________
Before SMITH, Chief Judge, GRUENDER and KOBES, Circuit Judges.
____________
GRUENDER, Circuit Judge.
Alleging that law enforcement officials shot him with lead-filled bean bags
while he was protesting, Marcus Mitchell sued Morton County and various North
Dakota state officials under 42 U.S.C. § 1983 for violating his rights under the First,
Fourth, and Fourteenth Amendments. The district court dismissed Mitchell’s
complaint with prejudice. Mitchell appeals, and we affirm in part and reverse in
part.
I.
Mitchell’s complaint alleged the following facts, which at this stage in the
litigation we must assume are true. See Kruger v. Nebraska, 820 F.3d 295, 300-02
(8th Cir. 2016). In November 2016, Mitchell traveled to North Dakota to participate
in protests against the construction of an oil pipeline across Native American tribal
land. By that time, the protests had been ongoing for several months, and law
enforcement was becoming “increasingly hostile and aggressive” toward the
protestors despite the fact that they were protesting “peacefully.” Under the
direction of Morton County Sheriff Kyle Kirchmeier, the officers began to use
“violent tactics” against the protestors, including deploying “weapons like bean bag
pellets, rubber bullets, tear gas, pepper spray, and firehoses to spray freezing water.”
On October 24, 2016, Sheriff “Kirchmeier and other officials from the state
of North Dakota closed” a public highway in the vicinity of the protests and
“maintained a reinforced barricade” there. Two days prior, “law enforcement
officers under [Sheriff] Kirchmeier’s command [had] fired rubber bullets and
sprayed pepper spray” at the protestors, “causing numerous protesters to suffer
injuries.” Three days after the closure, law enforcement and the protestors clashed
again. Officers used pepper spray and “shotguns loaded with sponge bullets and
bean bags” against the protesters, “causing numerous injuries.”
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The unrest continued into November. On November 20 and 21, despite
“wholly fail[ing] to provide adequate warnings or announcements to disperse,”
officers “indiscriminately deployed freezing water, chemical agents,” and other
weapons, “including lead-filled bean bags,” at “individuals within the crowd.”
Many protestors “suffered serious injuries, including loss of consciousness, facial
burns, broken bones, genital injury, and hypothermia as a result of the officers’
actions.” In particular, one individual “peacefully protesting” was hit by an
explosive munition that “nearly sever[ed] her left hand from her arm, . . . destroying
most of the arteries, skin, tissue, muscle, nerves, tendons, and bone in her left
forearm.”
Sheriff Kirchmeier “defended law enforcement’s use of force, and specifically
the use of impact munitions.” “When we’re put in the position of protected areas
being overrun by numbers of people,” he explained, “these are lawful tools to quell
the advancement. . . . We’re not just gonna let people and protesters in large groups
come in and threaten officers.” Under Sheriff Kirchmeier’s direction, “law
enforcement officers continually deployed” weapons such as “bean bag guns”
against the protestors “throughout late 2016 and early 2017.”
“On the evening of January 18, 2017, and into the early morning hours of
January 19, 2017, approximately 200 [protestors] gathered” at a bridge “near the law
enforcement blockade” on the public highway. The protest was “peaceful.”
Although it is unclear from the record whether the bridge was closed to pedestrian
traffic, Mitchell concedes that it was closed at least to vehicular traffic. A team of
officers led by Sergeant Benjamin Kennelly was “dispatched to the scene and issued
12 gauge shotguns that deployed drag stabilizing bean bag rounds.” Sergeant
Kennelly acted as “scene commander” and “directed law enforcement officers
during ‘pushes’ during which officers rushed, advanced toward and deployed
munitions at” the protestors.
Having “heard that law enforcement officers were shooting unarmed
[protestors], including elders and women,” Mitchell decided to go to the bridge. As
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“Mitchell approached the Bridge, he observed from a distance that law enforcement
officers were indeed shooting people on the Bridge.” Mitchell “positioned himself
in front of women and elders in the crowd” and, “[w]ith his hands raised in the air,
. . . said ‘Mni Wiconi,’ which means ‘water is life’ in the Lakota language.” After a
countdown, several officers fired lead-filled bean bags from their shotguns at
Mitchell. Mitchell was hit in three places, including his head. One of the rounds
shattered his left eye socket and became lodged in his eye, requiring surgery.
Mitchell was arrested and charged with criminal trespass and obstruction of a
government function. The case did not proceed to trial; instead, Mitchell and the
state entered into a pretrial diversion agreement in which the state conditionally
agreed to dismiss the charges. See generally N.D. R. Crim. P. 32.2 (governing
pretrial diversion agreements in North Dakota).
Mitchell sued. He brought several claims under 42 U.S.C. § 1983 against
various North Dakota officials in their individual capacities; a claim for liability
under Monell v. Department of Social Services, 436 U.S. 658 (1978), against Sheriff
Kirchmeier in his official capacity as Sheriff of Morton County; and several state-
law claims against various individual and municipal defendants. On the defendants’
motion, the district court dismissed with prejudice Mitchell’s complaint in its
entirety under Federal Rule of Civil Procedure 12(b)(6).
Mitchell appeals, challenging the decision to dismiss his complaint as well as
the decision to dismiss it with prejudice without granting him leave to amend. The
only claims that Mitchell meaningfully argues in his opening brief the district court
should not have dismissed are (1) a § 1983 claim against the officers who allegedly
shot him for retaliatory use of force in violation of his First Amendment rights, (2) a
§ 1983 claim against the officers who allegedly arrested him for retaliatory arrest in
violation of his First Amendment rights, (3) a § 1983 claim against the officers who
allegedly shot him for use of excessive force in violation of his Fourth Amendment
rights, (4) a § 1983 claim against Sergeant Kennelly for failure to intervene to
prevent the use of excessive force, (5) a § 1983 claim against the officers who
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allegedly shot him for discrimination on the basis of “his status as an Indigenous
person” in violation of the Equal Protection Clause of the Fourteenth Amendment,
and (6) the Monell claim against Morton County insofar as this claim asserted
municipal liability for the Fourth Amendment and Equal Protection Clause
violations. Accordingly, we deem waived any challenge to the district court’s
dismissal of Mitchell’s other claims. See Chay-Velasquez v. Ashcroft, 367 F.3d 751,
756 (8th Cir. 2004).
II.
We review the grant of a motion to dismiss de novo. Smith v. S. Farm Bureau
Cas. Ins., 18 F.4th 976, 979 (8th Cir. 2021). A claim survives a Rule 12(b)(6) motion
to dismiss only if the complaint’s nonconclusory allegations, accepted as true, make
it not just “conceivable” but “plausible” that the defendant is liable. Ashcroft v.
Iqbal, 556 U.S. 662, 680-83 (2009).
A.
We begin with Mitchell’s claims for retaliatory use of force and retaliatory
arrest in violation of the First Amendment. The district court determined that both
claims were barred by the rule announced in Heck v. Humphrey, 512 U.S. 477(1994). In the alternative, the district court determined that even if Heck did not
apply, the claims would be subject to dismissal under Rule 12(b)(6) on the merits.
Although we conclude that Heck does not bar either claim, we agree with the district
court that both claims are subject to dismissal under Rule 12(b)(6) on the merits.1
1
There is some confusion about whether the Heck bar is jurisdictional. E.g.,
compare Dixon v. Hodges, 887 F.3d 1235, 1237 (11th Cir. 2018) (per curiam)
(stating that where Heck applies, it “strips a district court of jurisdiction”), with
Colvin v. LeBlanc, 2 F.4th 494, 498-99 (5th Cir. 2021) (holding that “Heck does not
present a jurisdictional hurdle”). To avoid deciding the question here, we explain
why Heck does not apply before considering whether Mitchell’s claims are subject
to dismissal under Rule 12(b)(6) on the merits.
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1.
In Heck, the Supreme Court held that a district court must dismiss a § 1983
claim if “a judgment in favor of the plaintiff would necessarily imply the invalidity
of his conviction or sentence,” unless the plaintiff proves “that the conviction or
sentence has been reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such determination, or called into
question by a federal court’s issuance of a writ of habeas corpus.” 512 U.S. at 487.
Like other courts, we have labeled the requirement to prove that the conviction or
sentence has already been invalidated the “favorable-termination” requirement. See,
e.g., Entzi v. Redmann, 485 F.3d 998, 1003 (8th Cir. 2007); Wilson v. Johnson, 535
F.3d 262, 263 (4th Cir. 2008). Importantly, it is only if the plaintiff’s § 1983 claim
“would necessarily imply the invalidity of his conviction or sentence” that the
favorable-termination requirement comes into play. See Heck, 512 U.S. at 487(emphasis added).
Here, Mitchell was never convicted of—and therefore, a fortiori, never
sentenced on—the charges against him. Furthermore, even if the pretrial diversion
agreement were a “conviction or sentence,” see id., the success of Mitchell’s § 1983
claims would not imply its invalidity. In North Dakota, a pretrial diversion
agreement is simply a contract in which the state agrees to forgo prosecution in
consideration for the defendant agreeing not to “commit a felony, misdemeanor or
infraction” for a specified period of time (and, in some cases, agreeing to further
conditions). N.D. R. Crim. P. 32.2(a)(1)-(2). The success of Mitchell’s § 1983
claims would imply nothing at all about whether his pretrial diversion agreement
with the state was a valid contract. Therefore, the favorable-termination requirement
does not come into play, and Mitchell’s § 1983 claims are not Heck-barred. See
Vasquez Arroyo v. Starks, 589 F.3d 1091, 1095 (10th Cir. 2009) (holding that Heck
does not apply to pretrial diversion agreements because “there is no related
underlying conviction”); McClish v. Nugent, 483 F.3d 1231, 1251 (11th Cir. 2007)
(holding that Heck does not apply to pretrial intervention agreements, regardless of
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whether such an agreement “amount[s] to a favorable termination,” because the
§ 1983 plaintiff “was never convicted of any crime” (emphasis omitted)).
The district court reached a contrary conclusion by misreading Heck.
According to the district court, Heck bars any § 1983 claim whose success would
imply the plaintiff’s innocence of charges in a criminal proceeding unless the
plaintiff can prove that the proceeding was terminated favorably to him. On this
reading, the mere existence of a criminal charge incompatible with the plaintiff’s
§ 1983 claim triggers the favorable-termination requirement. But that is not what
the Court said in Heck, 512 U.S. at 487 (barring only § 1983 claims whose success
would imply the invalidity of the plaintiff’s “conviction or sentence”), and it
conflicts with what the Court has consistently held since, see, e.g., Wallace v. Kato,
549 U.S. 384, 393 (2007) (denying that Heck applied where “there was in existence
no criminal conviction that the [§ 1983] cause of action would impugn”). We
recognize that the Third Circuit has adopted a reading of Heck like the district
court’s. See Gilles v. Davis, 427 F.3d 197, 208-12 (3d Cir. 2005). For the reasons
explained above, however, we find the cases from the Tenth and Eleventh Circuits
that reject this reading more persuasive. See Vasquez Arroyo, 589 F.3d at 1095;
McClish, 483 F.3d at 1251.
2.
Although Mitchell’s First Amendment retaliation claims are not Heck barred,
we agree with the district court that they are subject to dismissal under Rule 12(b)(6)
on the merits. As relevant here, to prevail on a First Amendment retaliation claim,
the plaintiff must show that the defendant would not have taken the adverse action
but for harboring “retaliatory animus” against the plaintiff because of his exercise of
his First Amendment rights. Nieves v. Bartlett, 587 U.S. ---, 139 S. Ct. 1715, 1722
(2019). It is not enough for the plaintiff to show that the defendant arrested or used
force against the plaintiff in response to conduct that in fact was protected. See
Baribeau v. City of Minneapolis, 596 F.3d 465, 481 (2010). If the response was
driven not by “animus” but by the defendant’s understanding—however mistaken—
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of his official duties, then it was not “retaliatory.” See id. (affirming summary
judgment for the defendants on a First Amendment retaliatory-arrest claim because
the defendants arrested the plaintiffs based on a genuine albeit “unreasonable” belief
that the plaintiffs’ protest conduct violated the law).
Here, the nonconclusory allegations in the complaint do not give rise to a
plausible inference that the officers who allegedly shot and arrested Mitchell acted
out of retaliatory animus. According to the complaint, hundreds of protestors had
gathered in the middle of the night on a bridge that Mitchell concedes was closed at
least to vehicular traffic and was “near [a] law enforcement blockade.” Sheriff
Kirchmeier was concerned that the protestors were occupying a “protected area[],”
and the officers initiated “pushes” in an effort to move the protestors. It was only
after Mitchell stood in their way and ignored a countdown warning that the officers
shot him with the bean bags and arrested him.
The only plausible inference to draw from these allegations is that the
officials’ response to Mitchell’s presence on the bridge was driven by their
understanding of their responsibilities as officials charged with maintaining law and
order. Cf. Thayer v. Chiczewski, 705 F.3d 237, 249, 253-54 (7th Cir. 2012) (finding
no evidence of retaliatory animus when officers arrested a protestor who failed to
comply with a dispersal order, regardless of whether the officers had probable
cause). To be sure, it is “conceivable” that the officers were pursuing a personal
vendetta against Mitchell because of the content of his speech or the people with
whom he chose to assemble. See Iqbal, 556 U.S. at 680. But it is not “plausible.”
See id.Indeed, conclusory allegations aside, the complaint alleged no facts that even
hint at a retaliatory motive. Mitchell emphasizes the allegation that he had
announced in Lakota that “water is life” shortly before the officers shot him, but his
own allegations indicate that the officers had begun shooting bean bags at the
protestors before he arrived at the scene. Shooting bean bags at Mitchell too after
he stood in their way is exactly what one would expect the officers to do even if
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Mitchell had said nothing. So, the fact that Mitchell made his statement shortly
before the officers shot him does not make it plausible that the statement was a but-
for motivating cause of the officers’ use of force. See Nieves, 139 S. Ct. at 1722.
Furthermore, the timing and location of the gathering—the fact that it
occurred in the middle of the night near a law enforcement blockade on a bridge
closed at least to vehicular traffic—bolsters the alternative, “non-retaliatory
explanation” that the officers were simply trying to maintain law and order. See
Kilpatrick v. King, 499 F.3d 759, 768 (8th Cir. 2007). So does the fact that Mitchell
was given a countdown, which suggests that the officers were motivated by
Mitchell’s refusal to move rather than his speech. Cf. Auer v. City of Minot, 896
F.3d 854, 860-61 (8th Cir. 2018) (concluding that no reasonable jury could infer
retaliatory animus from the fact that the adverse action “happened shortly after” the
protected conduct given that an intervening event “even closer in time” provided a
nonretaliatory basis for the adverse action).
In sum, “[a]s between th[e] ‘obvious alternative explanation’” that the officers
were simply trying to maintain law and order and the retaliatory animus that Mitchell
“asks us to infer,” retaliatory animus “is not a plausible conclusion.” See Iqbal, 556
U.S. at 682 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 567 (2007)); Graham
v. Barnette, 5 F.4th 872, 889 (8th Cir. 2021) (“[T]hough the temporal proximity of
[the plaintiff’s] protected activity and [the adverse action] is relevant, it is not enough
on its own to create a triable issue of fact regarding cause where no other record
evidence supports finding a retaliatory motive and there is evidence that the officers
acted in good faith.”). The district court properly dismissed Mitchell’s First
Amendment retaliation claims.
We emphasize that this reasoning is neutral as to whether the First
Amendment protected Mitchell’s right to assemble and speak on the bridge. Thus,
we need not address the argument pressed by Mitchell and amici First Amendment
scholars that if the complaint’s allegations are true, then the bridge closure violated
the First Amendment. Officers merely carrying out their duty as they understand it
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are not liable for retaliatory arrest or retaliatory use of force even if their
understanding of their duty is mistaken—indeed, even if it is so mistaken as to be
“unreasonable.” Baribeau, 596 F.3d at 481. To be sure, they may be liable for
unlawful arrest or use of excessive force. See id.; infra Section II.B. But
constitutional torts of retaliation require acting on retaliatory animus. See Nieves,
139 S. Ct. at 1722; Baribeau, 596 F.3d at 481; Kilpatrick, 499 F.3d at 767; Thayer,
705 F.3d at 253. Here, Mitchell failed to plead facts that make an inference of
retaliatory animus plausible. Therefore, his claims for retaliatory arrest and
retaliatory use of force were subject to dismissal even assuming the First
Amendment protected his right to assemble and speak on the bridge.
B.
Next, Mitchell challenges the dismissal of his claims that the officers who
allegedly shot him violated the Fourth Amendment by using excessive force against
him and that not only they but also Morton County and Sergeant Kennelly are liable
for this violation.
1.
To decide whether the force used to seize a suspect was excessive and thus
“unreasonable” for purposes of the Fourth Amendment, we look to “the totality of
the circumstances.” Tennessee v. Garner, 471 U.S. 1, 8-9, 11 (1985). Relevant
factors include (1) “the severity of the crime at issue,” (2) “whether the suspect poses
an immediate threat to the safety of the officers or others,” and (3) “whether [the
suspect] is actively resisting arrest or attempting to evade arrest by flight.” Graham
v. Connor, 490 U.S. 386, 396 (1989). Applying these factors, we have held time and
again that, if a person is not suspected of a serious crime, is not threatening anyone,
and is neither fleeing nor resisting arrest, then it is unreasonable for an officer to use
more than de minimis force against him. See, e.g., Jackson v. Stair, 944 F.3d 704,
713 (8th Cir. 2019); Div. of Emp. Sec. v. Bd. of Police Comm’rs, 864 F.3d 974, 978-
79 (8th Cir. 2017); Small v. McCrystal, 708 F.3d 997, 1005 (8th Cir. 2013); Montoya
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v. City of Flandreau, 669 F.3d 867, 872-73 (8th Cir. 2012); Shannon v. Koehler, 616
F.3d 855, 862-63 (8th Cir. 2010).
Here, the complaint did not suggest that Mitchell was suspected of anything
more than trespassing and obstructing a government function, both nonviolent
misdemeanors. See N.D. Cent. Code §§ 12.1-22-03, 12.1-08-01. Nor did the
complaint suggest that Mitchell threatened anyone or fled or resisted arrest; on the
contrary, it alleged that he simply stood with his hands above his head. It is “clearly
established” that the use of more than de minimis force in circumstances like these
violates the Fourth Amendment. Jackson, 944 F.3d at 713; Div. of Emp. Sec., 864
F.3d at 978-79; Montoya, 669 F.3d at 871-73; Shannon, 616 F.3d at 862-64.
Nonetheless, according to the complaint, the officers shot Mitchell with
shotgun-propelled, lead-filled bean bags that shattered his eye socket. Our cases
clearly establish that gentler treatment than this constitutes more than de minimis
force. See, e.g., Small, 708 F.3d at 1005-06 (holding that it was clearly established
that tackling from behind without warning constitutes more than de minimis force);
Montoya, 669 F.3d at 870, 872-73 (holding that it was clearly established that
causing a person to trip by “sweeping her . . . leg” constitutes more than de minimis
force); Shannon, 616 F.3d at 858, 863-64 (holding that it was clearly established that
a takedown constitutes more than de minimis force). True, the complaint did not
allege that the officers were aiming at Mitchell’s face. But it did allege that the
officers were aiming at Mitchell. And the severity of Mitchell’s injuries confirms
what any “reasonable officer in [the defendants’] position” would have known: to
fire a shotgun loaded with a lead-filled bean bag at a person, regardless of whether
one is aiming at the person’s face, is to use more than de minimis force against the
person. See Montoya, 669 F.3d at 872 (explaining that “the severity of the injuries
[the plaintiff] sustained is a relevant factor in determining the reasonableness of the
force used”).
Therefore, assuming the nonconclusory allegations in the complaint are true,
the officers who shot Mitchell violated his Fourth Amendment rights. Furthermore,
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because it was clearly established that the alleged conduct violated Mitchell’s Fourth
Amendment rights, we must assume at this stage in the litigation that the officers
who allegedly shot Mitchell are not entitled to qualified immunity. See Stanley v.
Finnegan, 899 F.3d 623, 627 (8th Cir. 2018). The district court erred in dismissing
Mitchell’s Fourth Amendment claim against the officers who allegedly shot him.
The defendants maintain that our decision in Bernini v. City of St. Paul, 665
F.3d 997 (8th Cir. 2012), compels a different conclusion. It does not. The plaintiffs
in Bernini alleged that they were protesting “peacefully . . . on the sidewalks” when,
without provocation, police officers “began shooting chemical irritant canisters,
plastic bullets, and concussion grenades at [them].” Amended Complaint at 15,
Bernini, 665 F.3d 997 (No. 09-2312 PAM/JJG), 2009 WL 4563648. The district
court did not dismiss the plaintiffs’ excessive-force claims under Rule 12(b)(6).
Instead, the case proceeded to discovery. See Order Extending Scheduling Order
Deadlines, Bernini, 665 F.3d 997 (No. 09-2312 PAM/JJG), ECF No. 33 (resetting
discovery deadline). It was not until discovery revealed that the officers used force
because “a large and potentially riotous group” was advancing against a police
barricade “in a threatening manner” despite repeated warnings to “back up” that the
district court granted summary judgment for the defendants based on qualified
immunity, which we affirmed. Bernini, 665 F.3d at 1001-04, 1006-07; see also
Baude v. Leyshock, 23 F.4th 1065, 1072-73 (8th Cir. 2022) (distinguishing what the
plaintiff alleged in support of his unreasonable-seizure claim from what the evidence
showed “at the summary judgment stage” in Bernini).
So too here, Mitchell’s allegations that he was “peacefully protesting”—
neither committing a serious crime nor threatening anyone’s safety nor fleeing or
resisting arrest—when the officers shot him with lead-filled bean bags capable of
shattering his eye socket are sufficient to state a claim for excessive force. Unless
and until discovery tells a different story, the officers are not entitled to qualified
immunity.
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2.
Citing Monell, Mitchell argues that Morton County is liable for the violation
of his Fourth Amendment rights. “A plaintiff may establish municipal liability under
§ 1983 by proving that his or her constitutional rights were violated by an ‘action
pursuant to official municipal policy’ or misconduct so pervasive among non-
policymaking employees of the municipality ‘as to constitute a “custom or usage”
with the force of law.’” Ware v. Jackson Cnty., 150 F.3d 873, 880 (8th Cir. 1998)
(quoting Monell, 436 U.S. at 691). To show a “custom or usage,” the plaintiff must
prove (1) “[t]he existence of a continuing, widespread, persistent pattern of
unconstitutional misconduct by the governmental entity’s employees”;
(2) “[d]eliberate indifference to or tacit authorization of such conduct by the
governmental entity’s policymaking officials after notice to the officials of that
misconduct”; and (3) an “injury by acts pursuant to the governmental entity’s
custom.” Id. (brackets omitted).
Here, the complaint alleged that Morton County law enforcement engaged in
a persistent pattern of unconstitutional conduct. “Despite the fact that the
[protestors] were peacefully protesting,” the complaint stated, “law enforcement
officers continually deployed” weapons such as “bean bag guns” at protestors
“throughout late 2016 and early 2017.” The complaint specifically discussed four
dates, two in October 2016 and two in November 2016, on which this occurred. It
alleged that, on one of these occasions, an “explosive munition . . . nearly sever[ed
a protestor’s] left hand from her arm, . . . destroying most of the arteries, skin, tissue,
muscle, nerves, tendons, and bone in her left forearm.” The complaint alleged that
this occurred even though the individual was “peacefully protesting” and the
“officers wholly failed to provide adequate warnings or announcements to disperse.”
Taken together, these allegations indicate a pattern of Morton County law
enforcement using excessive force against the protestors. Cf. id. at 881 (upholding
a jury finding that “a pattern of unconstitutional conduct existed” based on evidence
of misconduct that spanned several months).
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The complaint also alleged that Sheriff Kirchmeier, a policymaking official
in Morton County for purposes of “law enforcement practices,” see Pembaur v. City
of Cincinnati, 475 U.S. 469, 483 n.12 (1986), tacitly authorized this use of excessive
force. According to the complaint, Sheriff Kirchmeier “defended law enforcement’s
use of force, and specifically the use of impact munitions,” calling them “lawful
tools to quell the [protestors’] advancement.” The complaint also alleged that
Sheriff Kirchmeier “justified tactics . . . such as spraying protesters with water
cannons, despite freezing cold temperatures, arguing, ‘We’re not just gonna let
people and protesters in large groups come in and threaten officers.’” True, the
complaint did not allege that Sheriff Kirchmeier explicitly authorized the use of
these tactics against peaceful protestors. But it did allege that the protestors were
peaceful. And if, as the complaint alleged, Sheriff Kirchmeier had been supervising
law enforcement’s response to the protests since they began, then he “must have
been aware” that they were peaceful. See Lucente v. Cnty. of Suffolk, 980 F.3d 284,
298 (2d Cir. 2020). Defending the use of “impact munitions” and “water cannons”
in these circumstances amounts to tacitly authorizing the use of excessive force. See
Harper v. City of Los Angeles, 533 F.3d 1010, 1025 (9th Cir. 2008) (holding that a
jury could infer tacit authorization from evidence that the relevant policymaking
official and others “following [his] lead” “expressed confidence in” and “resist[ed]”
criticism of a subordinate despite clear indications that the subordinate was engaged
in constitutional violations); cf. Mettler v. Whitledge, 165 F.3d 1197, 1205 (8th Cir.
1999) (explaining that a municipality can be liable under Monell if its “officials
ignored police misconduct”); Lucente, 980 F.3d at 297-98 (holding that “tolerant
awareness” of constitutional violations can give rise to Monell liability); Jeffes v.
Barnes, 208 F.3d 49, 61, 64 (2d Cir. 2000) (holding that a jury could find a
municipality liable under Monell in light of evidence that the relevant policymaking
official “was well aware of the existence” of constitutional violations but “fail[ed]
to make any effort to forestall, halt, or redress [them]”).
Finally, the complaint alleged that acts pursuant to Morton County law
enforcement’s pattern of unconstitutional conduct caused Mitchell’s injury. The
complaint explained that, in the months leading up to Mitchell’s injury, officers
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“indiscriminately deployed . . . lead-filled bean bags like the munitions Mr. Mitchell
was harmed by” at peaceful protestors. Assuming the complaint’s allegations are
true, Mitchell’s injury was caused by acts pursuant to Morton County law
enforcement’s pattern of using excessive force against the protestors. Cf. Ware, 150
F.3d at 884-85 (concluding that the jury could find a causal link between the
municipality’s “failure to address [past instances of similar] misconduct” and the
subsequent violation of the plaintiff’s constitutional rights).
In sum, Mitchell has stated a claim for municipal liability under Monell. If
the allegations in his complaint are true, then Morton County law enforcement
engaged in a persistent pattern of excessive force against peaceful protestors that
was tacitly authorized by Sheriff Kirchmeier and that led to Mitchell’s injury. The
district court erred in dismissing Mitchell’s Monell claim against Morton County
insofar as the claim asserted liability for the alleged violation of his Fourth
Amendment rights.
3.
According to Mitchell, Sergeant Kennelly is also liable for the violation of
Mitchell’s Fourth Amendment rights because he failed to intervene. “[A] police
officer may be liable if he does not intervene to prevent the use of excessive force
when (1) the officer observed or had reason to know that excessive force would be
or was being used, and (2) the officer had both the opportunity and the means to
prevent the harm from occurring.” Robinson v. Payton, 791 F.3d 824, 829 (8th Cir.
2015).
Here, the complaint alleged that Sergeant Kennelly and the other officers were
“dispatched to the scene and issued 12 gauge shotguns that deployed drag stabilizing
bean bag rounds” and that Sergeant Kennelly acted as “scene commander” and
“directed” the other officers as they “deployed munitions” at the protestors.
Although the complaint did not allege that Sergeant Kennelly was in the immediate
vicinity when the officers shot Mitchell, it did indicate that the officers had been
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firing lead-filled bean bags at the protestors for some time before they shot Mitchell.
Specifically, the complaint alleged that Mitchell went to the bridge after he heard
that the officers were shooting unarmed participants in a “peaceful protest” and that,
as he approached, “he observed from a distance that law enforcement officers were
indeed shooting people.”
These allegations make it plausible that, having observed and indeed
“directed” the use of the bean bags prior to Mitchell’s arrival, Sergeant Kennelly had
reason to know that the officers would continue to deploy them after Mitchell
arrived. See Baude, 23 F.4th at 1074 (allowing a failure-to-intervene claim to
proceed based in part on allegations “that the supervisors issued orders allowing their
subordinates to use excessive force against an allegedly peaceful crowd”); cf. Nance
v. Sammis, 586 F.3d 604, 612 (8th Cir. 2009) (holding that an officer may be liable
for “failure to take action to deescalate the situation” prior to the use of excessive
force that forms the basis of the plaintiff’s claim). They also make it plausible that,
as “scene commander,” Sergeant Kennelly had the opportunity and means to stop
the use of the bean bags before Mitchell arrived. Cf. Krout v. Goemmer, 583 F.3d
557, 566 (8th Cir. 2009) (holding that five minutes was “a period which a jury could
find sufficient to afford the onlooking officers an opportunity to intervene”); Fogarty
v. Gallegos, 523 F.3d 1147, 1164 (10th Cir. 2008) (holding that a period of at least
three minutes was sufficient to afford a supervisor an opportunity to intervene).
Thus, the complaint’s allegations make it plausible that both conditions for liability
are met. See Robinson, 791 F.3d at 829.
Furthermore, it was clearly established that the force allegedly used was
excessive, see supra Section II.B.1, and that supervising officers with the
opportunity and means to prevent the use of excessive force have a duty to do so,
see, e.g., Robinson, 791 F.3d at 829. Therefore, we cannot say at this stage in the
litigation that Sergeant Kennelly is entitled to qualified immunity. See Stanley, 899
F.3d at 627. The district court erred in dismissing Mitchell’s claim against Sergeant
Kennelly for failure to intervene.
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C.
Finally, Mitchell challenges the dismissal of his claims that the officers who
allegedly shot him targeted him because he is Native American, thereby violating
the Equal Protection Clause, and that not only they but also Morton County is liable
for this violation. To prove that the officers who allegedly shot him violated the
Equal Protection Clause, Mitchell would need to show that they treated people who
were not Native Americans but were otherwise similarly situated to him more
favorably than him. See Adam & Eve Jonesboro, LLC v. Perrin, 933 F.3d 951, 959-
60 (8th Cir. 2019) (“The first step in an equal protection case is determining whether
the plaintiff has demonstrated that she was treated differently than others who were
similarly situated to her. Absent this threshold showing, [the plaintiff] does not have
a viable equal protection claim.” (internal quotation marks, brackets, and citation
omitted)).
Mitchell failed to allege facts showing that otherwise similarly situated non-
Native Americans were treated more favorably than he was. His complaint did
feature the vague and conclusory allegation that the defendants “have a history of
discriminating against and racially profiling individuals in Indigenous
communities.” But it did not allege, for example, that the defendants treated any
non-Native American participants in the protest more favorably than Mitchell. On
appeal, Mitchell claims that the appropriate comparator is “a non-Indigenous
participant in a different protest—one that did not have to do with Indigenous
rights.” But Mitchell has not identified any actual such participant and alleged that
this participant was treated more favorably than he was despite being otherwise
similarly situated to him. Instead, Mitchell simply assumes, based on his general
allegations of a history of anti-Indigenous discrimination, that the defendants would
treat a hypothetical similarly situated non-Native American protestor differently.
That Mitchell assumes this does not make it plausible. See Iqbal, 556 U.S. at 680-
83 (holding that “bare assertions” of discrimination on the basis of “religion, race,
and/or national origin” are insufficient to state a “constitutional discrimination
claim”); Walker v. Nelson, 863 F. Supp. 1059, 1065 (D. Neb. 1994) (“[A]n equal
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protection violation cannot be founded on theoretical possibilities.”), aff’d, 70 F.3d
1276 (8th Cir. 1995) (unpublished).
Because Mitchell failed to allege facts making it plausible that the officers
who allegedly shot him violated the Equal Protection Clause, the district court
properly dismissed Mitchell’s equal-protection claim against these officers. And
because a Monell claim requires an underlying constitutional violation, the district
court also properly dismissed Mitchell’s Monell claim against Morton County
insofar as this claim asserted liability for the alleged Equal Protection Clause
violation. See Whitney v. City of St. Louis, 887 F.3d 857, 861 (8th Cir. 2018).
III.
After arguing that he pleaded sufficient factual matter to withstand a Rule
12(b)(6) motion to dismiss, Mitchell briefly argues in the alternative that even if he
did not, the district court should have granted him leave to amend rather than
dismissing with prejudice. We review the decision to dismiss with prejudice without
granting leave to amend for an abuse of discretion. Knowles v. TD Ameritrade
Holding Corp., 2 F.4th 751, 758 (8th Cir. 2021).
“Leave to amend generally is inappropriate . . . where the plaintiff has not
indicated how [he] would make the complaint viable, either by submitting a
proposed amendment or indicating somewhere in [his] court filings what an
amended complaint would have contained.” Pet Quarters, Inc. v. Depository Tr. &
Clearing Corp., 559 F.3d 772, 782 (8th Cir. 2009). Here, “[t]he record does not
indicate that [Mitchell] has ever submitted a proposed amended complaint or
clarified what one might have contained.” See id. Therefore, setting aside the claims
that the district court should not have dismissed at all, see supra Section II.B, the
district court did not abuse its discretion in dismissing the complaint with prejudice
without giving Mitchell an opportunity to amend, see Pet Quarters, 559 F.3d at 782;
cf. Steven S. Gensler & Lumen N. Mulligan, 1 Federal Rules of Civil Procedure,
Rules and Commentary, Rule 12 cmt. (2021) (observing that when “the plaintiff has
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failed to state a claim upon which relief may be granted, . . . courts tend to dismiss
with prejudice precisely because the motion reaches the merits of the claim”).
IV.
For the foregoing reasons, we reverse the dismissal of (1) Mitchell’s claim
against the officers who allegedly shot him for use of excessive force, (2) Mitchell’s
Monell claim against Morton County insofar as this claim asserted liability for the
use of excessive force, and (3) Mitchell’s failure-to-intervene claim against Sergeant
Kennelly insofar as this claim asserted liability for the use of excessive force; we
affirm the dismissal with prejudice of the remainder of Mitchell’s claims; and we
remand for further proceedings consistent with this opinion.
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