Civil Rights-§1983-Excessive Force-Moment-of-Threat Rule

Staff Report//February 18, 2026//

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Defendant appealed the district court’s denial of his motion for summary judgment based on qualified immunity. Plaintiff suffered eye injuries and a traumatic brain injury after defendant shot him with a chemical-filled projective from five to ten feet away. Plaintiff filed suit under §1983 alleging excessive force. The district court denied defendant’s summary judgment motion, finding that genuine issues of material fact precluded a grant of qualified immunity. Although the court affirmed the district court’s decision, the Supreme Court vacated and remanded for further consideration in light of the Court’s ruling in Barnes v. Felix, 605 U.S. 73.

Where the record would support finding that defendant aimed at plaintiff’s head despite knowing that doing so posed the highest risk of severe or fatal injury and where a reasonable jury could find that plaintiff did not pose an immediate threat to officers because he had been pushed backwards and down to the ground, creating space between plaintiff and the officers, defendant could not demonstrate that a reasonable officer would have believed that plaintiff posed an immediate threat.

Stras, J., dissenting: “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.”

Judgment is affirmed.

Marks v. Bauer (MLW No. 84350/Case No. 23-1420 – 22 pages) (U.S. Court of Appeals, 8th Circuit, Erickson, J.) Appealed from U.S. District Court, District of Minnesota, Montgomery, J. (Kristin R. Sarff, Minneapolis, MN for appellant; Heather P. Robertson, Minneapolis, MN and Sharda R. Enslin, Minneapolis, MN on the brief) (Greta Ann Wiessner, Minneapolis, MN for appellant; Robert Bennett, Minneapolis, MN; Andrew J. Noel, Minneapolis, MN; Kathryn H. Bennett, Minneapolis, MN; and Marc E. Betinsky, Minneapolis, MN on the brief)