Benjamin M. Bauer v. Anne Elizabeth Alma Marks

During an emergency medical evacuation amidst a riot, a six-foot, two-hundred pound man assaulted an officer and grabbed the officer’s riot baton in an apparent attempt to disarm him. Witnessing this, and believing the attack would escalate in violence and impede the medical evacuation of an incapacitated civilian, the officer at issue used a less-lethal projectile to stop the assault on his fellow officer. A divided panel of the Eighth Circuit held that the officer was not entitled to qualified immunity by examining the use of force at the “precise moment that the seizure [was] effectuated.” This Court vacated that decision and remanded the case for further consideration in light of Barnes v. Felix, 605 U.S. 73 (2025), which rejected the moment-of-threat rule as improperly narrowing the totality of the circumstances inquiry for use of force claims under the Fourth Amendment. On remand, a divided panel reinstated the same holding, contending, despite having stated it was assessing the threat at the precise moment force was used, that it “did not apply the ‘moment-of-threat’ rule in our original opinion[.]” The question presented is: Whether the law clearly established that the officer’s use of a less-lethal projectile, under the totality of the circumstances, constituted an unreasonable use of force in violation of the Fourth Amendment.