Background
During the Dakota Access Pipeline protests in November 2016, Sophia Wilansky was present at Backwater Bridge in Morton County, North Dakota, where law enforcement had erected a barricade and stationed officers with less-lethal munitions. After a violent clash between protesters and police earlier that evening, Wilansky remained near the barricade. Officers ordered her and another protester to leave, warning that less-lethal force would be used if they did not comply. When she did not move, officers fired less-lethal munitions at her position. She was hit in the arm and began to retreat southward.
As Wilansky stopped approximately 30 yards away to pick up a piece of plywood, Officer Jonathan Moll fired an aerial warning munition — a flashbang embedded in a less-lethal bullet designed to be fired above crowds for dispersal — which struck her arm, tore flesh from it, and knocked her to the ground. She suffered permanent, severe injuries to her left hand and forearm. She was not arrested or detained. Officers were later heard laughing and congratulating Moll on his “marksmanship.”
Wilansky brought two related § 1983 suits against Morton County, the county sheriff in his official capacity, and numerous individual officers in their personal capacities, alleging Fourth and Fourteenth Amendment excessive-force violations and Monell claims against the county for failure to train, ratification of unconstitutional conduct, and an unconstitutional policy or custom of using explosive less-lethal munitions. The U.S. District Court for the District of North Dakota dismissed both cases with prejudice.
The Court’s Holding
The Eighth Circuit affirmed the dismissal in full. On the Fourth Amendment claims, the court held that qualified immunity barred suit against all individual officers because it was not clearly established as of November 2016 that the use of force to disperse protesters constituted a seizure. Applying the objective test from Torres v. Madrid, 592 U.S. 306 (2021), the court found that the officers’ conduct — following explicit dispersal orders — objectively manifested an intent to disperse, not to restrain. Neither Officer Moll’s firing of the aerial munition at a fleeing protester who had stopped moving nor the officers’ subsequent celebration altered that analysis, because the objective inquiry does not turn on an officer’s subjective intent or a plaintiff’s subjective perception of being trapped.
On the Fourteenth Amendment excessive-force claims, the court rejected Wilansky’s argument that the objective-reasonableness standard from Kingsley v. Hendrickson, 576 U.S. 389 (2015), should apply, holding that Kingsley is limited to pretrial detainees and that the shocks-the-conscience standard of County of Sacramento v. Lewis, 523 U.S. 833 (1998), governs free citizens’ excessive-force claims under the Fourteenth Amendment. Because Wilansky could not point to any prior case clearly establishing that the officers’ conduct shocked the conscience, qualified immunity barred these claims as well. The court also rejected her Monell claim, finding that two earlier October 2016 protest incidents combined with the November 20 events did not plausibly allege the “continuing, widespread, persistent pattern” of unconstitutional use of explosive munitions required to establish municipal liability — distinguishing the stronger factual record in the related case Mitchell v. Kirchmeier.
Finally, the court affirmed dismissal with prejudice, finding no abuse of discretion where Wilansky had ample time to seek leave to amend but failed to do so and made no request for leave even in her opposition briefing.
Key Takeaways
- Under Torres v. Madrid, force used to disperse a protest crowd does not clearly constitute a Fourth Amendment seizure, and as of November 2016 that principle was not clearly established — officers who fired less-lethal and aerial munitions at a protester who defied a dispersal order are entitled to qualified immunity.
- The Eighth Circuit reaffirmed that the shocks-the-conscience standard under County of Sacramento v. Lewis governs Fourteenth Amendment excessive-force claims brought by non-pretrial detainees; the objective-reasonableness standard of Kingsley does not extend beyond the pretrial-detainee context.
- A Monell pattern-or-practice claim requires pleading a continuing, widespread pattern; isolated incidents from a single evening, even combined with two earlier protest encounters, are insufficient — and a co-plaintiff’s stronger complaint in a related case does not save a weaker one.
- A plaintiff who fails to seek leave to amend — or even request it in opposition briefing — while faced with a 12(b)(6) motion risks dismissal with prejudice.
Why It Matters
This decision reinforces the formidable barrier that qualified immunity poses for civil-rights plaintiffs injured during protest policing. By holding that the law on dispersal-force-as-seizure was not clearly established in 2016, the Eighth Circuit leaves open a significant gap in Fourth Amendment accountability for officers who use force ostensibly to disperse rather than to arrest — even where that force causes catastrophic, permanent injuries. The case also signals that courts in this circuit will not extend Kingsley‘s more plaintiff-friendly objective-reasonableness framework beyond its pretrial-detainee context, keeping the higher shocks-the-conscience threshold in place for free-citizen excessive-force claims.
For litigants, the decision underscores the importance of comprehensive, defendant-specific pleading in multi-officer § 1983 cases — general allegations that officers “participated” are insufficient — and of actively seeking leave to amend before a motion to dismiss is granted rather than relying on the court’s discretion after the fact.