Marks v. Bauer

Background

Ethan Daniel Marks brought one claim under 42 U.S.C. § 1983 against Benjamin Bauer, a Minneapolis police officer sued in his individual capacity. Marks alleged that Bauer used excessive force in violation of the Fourth and Fourteenth Amendments.

On May 28, 2020, during unrest in Minneapolis, Marks was near officers who were helping remove an injured woman. After an interaction with Officer Jonathan Pobuda, Marks shouted at Pobuda, shoved him, and briefly grasped his riot baton. Pobuda pushed Marks backward, creating several feet of space. Marks stumbled backward, and a bystander stepped between Marks and Pobuda. Bauer then fired a 40-millimeter chemical-filled projectile at Marks’s face from close range and without warning. The projectile ruptured Marks’s right eyeball and caused other serious injuries, including a detached retina, fractured eye socket, traumatic brain injury, and permanent legal blindness in the right eye.

Bauer testified that he intended to aim at Marks’s torso and that Marks’s movement caused the projectile to strike his face. Marks argued that video evidence and expert testimony supported an inference that Bauer aimed at the head, which the Minneapolis Police Department’s training materials identified as part of the body area carrying the greatest potential for serious or fatal injury.

Summary Judgment and Qualified Immunity

Bauer moved for summary judgment based on qualified immunity. Qualified immunity generally protects government officials from liability unless the evidence shows both a constitutional violation and violation of a right that was clearly established when the conduct occurred.

The court rejected Bauer’s argument that no Fourth Amendment seizure occurred. It held that Bauer applied physical force to restrain Marks’s movement when he shot him, even though Marks was not arrested and the restraint was brief. The court also held that the evidence, viewed in the light most favorable to Marks, could allow a jury to find that Bauer used deadly force or, alternatively, unreasonable non-deadly force.

For the deadly-force analysis, the court emphasized that Bauer shot a high-velocity projectile into Marks’s face from approximately five to ten feet away. Marks was unarmed, had been pushed several feet away from Pobuda, was stumbling backward, and was not holding a weapon. The court stated that Bauer did not argue that deadly force was objectively reasonable under these circumstances and concluded that it could not determine as a matter of law that the use of force was reasonable. The court also found a genuine factual dispute about whether Bauer aimed at the body area that included the head and chest.

The court reached the same conclusion under the non-deadly-force analysis. It identified evidence that Marks no longer posed an immediate threat, that Pobuda did not believe additional force was needed, and that Marks was not actively resisting arrest or fleeing when Bauer fired. The court concluded that a reasonable jury could find the force excessive.

The court further held that the right was clearly established. It stated that, on May 28, 2020, a reasonable officer would have understood that shooting a high-velocity projectile from close range and without warning into the face of an unarmed person who did not present an immediate threat of death or serious injury was unconstitutional excessive force. Bauer’s motion for summary judgment based on qualified immunity was therefore denied.

Expert-Testimony Motions

The parties moved to exclude expert testimony under Federal Rule of Evidence 702 and the standards governing reliable and relevant expert evidence.

Bauer’s motion to exclude Thomas Martin’s rebuttal report and testimony was granted in part and denied in part. The court allowed Martin to testify about how different measurements and estimates could affect the angle and trajectory calculations. But it precluded Martin from offering opinions about where an officer should aim a less-lethal projectile or about the Minneapolis Police Department’s Zones 1, 2, and 3, because Martin lacked expertise in those subjects and they were not proper rebuttal topics. The court did not exclude Martin’s colloquial definition of “point blank range” at that stage, while allowing Bauer to raise the issue before or during trial.

Marks’s motion to exclude Christopher Gard’s testimony was granted in part and denied in part. The court excluded Gard’s opinions about whether Bauer’s force was reasonable or necessary under Fourth Amendment standards because those opinions were legal conclusions. It also excluded Gard’s statement that the video showed Marks’s head dipping, testimony about where Bauer intended to strike Marks, and testimony about Bauer’s subjective intent. The court allowed other challenged opinions to remain subject to cross-examination, although it noted that some of Gard’s asserted police-practice standards had a weak foundation.

Marks’s motion to exclude Parris Ward’s testimony was denied. The court found that Ward’s video enhancements and analysis could assist the jury, and that challenges to his conclusions about Marks’s movement and the distance between Marks and the launcher could be addressed through cross-examination.

Marks’s motion to exclude Matthew Noedel’s testimony was also denied. The court found that Noedel’s calculations could help the jury understand how changes in the launcher’s angle affect the projectile’s trajectory. Challenges to the estimates underlying his calculations went to the weight of his testimony rather than its admissibility.

Disposition

The order denied Bauer’s motion for summary judgment; granted in part and denied in part Bauer’s motion to exclude Martin’s report and testimony; granted in part and denied in part Marks’s motion to exclude Gard’s testimony; and denied Marks’s motion to exclude Ward’s and Noedel’s testimony. The opinion is signed by Ann D. Montgomery.