Mitchell v. Kirchmeier

28 F.4th 888

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)

No. 21-1071

United States Court of Appeals, Eighth Circuit.

Submitted: December 14, 2021

Filed: March 14, 2022

Amir H. Ali, Roderick & Solange, Washington, DC, Easha Anand, Roderick & Solange, San Francisco, CA, Vanessa Del Valle, Roderick & Solange, Bluhm Legal Clinic, Chicago, IL, David F. Oyer, MacArthur Justice Center, Washington, DC, for Plaintiff-Appellant.

Grant Bakke, Randall J. Bakke, Shawn A. Grinolds, Bradley Neuman Wiederholt, Bakke & Grinolds, Bismarck, ND, for Defendants-Appellees.

Anya Bidwell, Patrick M. Jaicomo, Marie L. Miller, Institute for Justice, Arlington, VA, for Amicus on Behalf of Appellant(s) Institute for Justice.

Jennifer S. Baker, Shoney Blake, Mary Kathryn Nagle, Pipestem & Nagle, Tulsa, OK, for Amicus on Behalf of Appellant(s) National Congress of American Indians.

Rachel A. Chung, Meaghan McLaine VerGow, O'Melveny & Myers, Washington, DC, Sarah Ludington, Duke Law School, First Amendment Clinic, Durham, NC, for Amici on Behalf of Appellant(s) Erwin Chemerinsky, Tabatha Abu El-Haj, Genevieve Lakier, Lyrissa Lidsky, Dean, Kermit Roosevelt, Amanda Shanor, Steven H. Shiffrin, Geoffrey Stone, Nadine Strossen, Laura Weinrib.

Jade Gasek, Edward Williams, Tiffany R. Wright, Howard University School of Law Civil Rights Clinic, Washington, DC, for Amicus on Behalf of Appellant(s) Howard University School of Law Civil Rights Clinic.

Clark M. Neily, III, Jay Remington Schweikert, Cato Institute, Washington, DC, for Amicus on Behalf of Appellant(s) Cato Institute.

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."

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 "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, 98 S.Ct. 2018, 56 L.Ed.2d 611 (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 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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, 114 S.Ct. 2364, 129 L.Ed.2d 383 (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...