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Benjamin M. Bauer v. Anne Elizabeth Alma Marks

Paid petition · United States Court of Appeals for the Eighth Circuit, No. 23-1420 · judgment February 12, 2026


5%
estimated cert probability
(petition-stage, structural)
95% interval 3%–9%
Rule 10: dissent below
At the Oct 16 conference: granted 12% · GVR 18% · relisted 39% · denied 25%
Granted ever, conference-stage estimate: 12%

Modestly above the 4.1% base rate. The model weights this up for a petition citing three to ten dissents, a dissent in the court below, and an Eighth Circuit decision below.

Question presented

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.

Counsel of record

For petitioner
Kristin Renee Sarff
Minneapolis City Attorney's Office

For respondent
Robert Bennett
Robins Kaplan LLP

Case

Subject area
Civil Rights (estimated from the questions presented, in the Supreme Court Database’s categories)

Conference history
Distributed for 3 conferences

Proceedings

  1. Oct 13 2026
    DISTRIBUTED for Conference of 10/16/2026.
  2. Sep 23 2026
    DISTRIBUTED for Conference of 10/9/2026.
  3. Sep 16 2026
    Electronic record received from the United States District Court of Minnesota.
  4. Sep 09 2026
    Record received from the United States Court of Appeals for the Eighth Circuit (1 box).
  5. Aug 31 2026
    Record Requested.
  6. Aug 26 2026
    DISTRIBUTED for Conference of 9/28/2026.
  7. Aug 24 2026
    Reply of petitioner Benjamin M. Bauer filed. (Distributed)
  8. Aug 07 2026
    Brief of respondent Anne Elizabeth Alma Marks in opposition filed.
  9. Jul 08 2026
    Motion to extend the time to file a response is granted and the time is extended to and including August 7, 2026.
  10. Jul 07 2026
    Motion to extend the time to file a response from July 24, 2026 to August 7, 2026, submitted to The Clerk.
  11. Jun 18 2026
    Petition for a writ of certiorari filed. (Response due July 24, 2026)