Minneapolis Officer Fails to Ditch Protester’s Use of Force Suit

A Minneapolis police officer must go to trial over whether he intended to use deadly force when he shot a chemical munition in a man’s face during a 2020 protest in response to George Floyd’s death, a federal appeals court said Thursday.

A jury could find that Ethan Marks was shot “when he neither posed a threat to the officers or the public.” But a jury might also agree with Benjamin Bauer’s assessment that his use of force was reasonable, the US Court of Appeals for the Eighth Circuit said.

Marks, who was 19-years-old at the time, suffered a traumatic brain injury and severe trauma to his right eye that left him partially blind when Bauer shot him with a chemical projectile from roughly five to ten feet away. Bauer asserted his actions were necessary because he believed Marks was assaulting a fellow officer in the middle of a rapidly evolving, tense situation.

Viewing the circumstances of the scene from the perspective of a reasonable officer and the record in the light most favorable to Marks, “Bauer has failed to show his use of force was objectively reasonable as a matter of law” to grant him qualified immunity, Judge Ralph R. Erickson wrote for the Eighth Circuit.

The record supports a finding that Bauer used force capable of causing severe or fatal injury to Marks. Bauer was also trained that the weapon he used was “less-lethal,” not “non-lethal.” And at the time Marks was shot, he was unarmed, stumbling backward from Bauer’s colleague after allegedly attempting to grab his baton, and a bystander was physically separating the two, Erickson said. The video evidence of the scene shows the crowd of demonstrators weren’t displaying hostility toward the officers until Bauer shot Marks, he wrote.

Eighth Circuit case law “clearly establish that a police officer is not permitted to use deadly force on an individual, who previously posed a threat to others, but no longer presents an immediate threat,” the judge said. And it would’ve been clear to a reasonable officer in Bauer’s position that his “high degree of force was disproportionate to the threat before him,” Erickson wrote.

But Judge David R. Stras, in a dissent, said “given the chaos and violence quickly enveloping the officers, there is no way to conclude that Officer Bauer’s actions clearly violated Marks’s rights.”

Chief Judge Steven M. Colloton joined the majority.

Robins & Kaplan represents Marks. The Minneapolis attorney’s office represents Bauer.

The case is Marks v. Bauer, 8th Cir., No. 23-01420, 2/12/26.