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Ruling finds officers used excessive force in shattering DAPL protester's eye socket with lead-filled beanbag

The decision by the U.S. 8th Circuit Court of Appeals revived a lawsuit filed by Marcus Mitchell, a Navajo tribal member, who claimed law enforcement officers fired shotgun beanbag rounds at peaceful, unarmed protesters, including himself, during DAPL protests in January 2017.

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Opponents of the Dakota Access oil pipeline sing during a confrontation with police on Backwater Bridge near Cannon Ball, North Dakota, on Jan. 19, 2017.
REUTERS/Terray Sylvester
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BISMARCK — A federal appeals court has ruled that officers used unreasonable force when they fired lead-filled beanbags at a protester and shattered his eye socket during a protest against the Dakota Access Pipeline.

The decision by the U.S. 8th Circuit Court of Appeals revived a lawsuit filed in July 2019 by Marcus Mitchell, a Navajo tribal member, who claimed law enforcement officers fired shotgun beanbag rounds at peaceful, unarmed protesters, including himself, during DAPL protests in January 2017.

The suit named as defendants Morton County, the city of Bismarck and North Dakota Highway Patrol officers.

Mitchell claimed he suffered serious injuries to his face when a shotgun beanbag round entered his left eye socket, shattering the orbital wall of his eye and his cheekbone.

Mitchell said the actions of officials violated his rights under the First, Fourth and Fourteenth amendments.

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A district court judge dismissed the suit with prejudice in late 2020.

Mitchell appealed the district court's decision to the U.S. 8th Circuit Court of Appeals and this week the appeals court issued a ruling that upheld the lower court's dismissal of a number of Mitchell's claims.

However, the higher court reversed the district court's dismissal of other claims, including allegations officers used excessive force in shooting him, as well as Mitchell's claims that Morton County and a law enforcement official have liability for the use of excessive force by officers.

The ruling sent those issues back to the district court for further proceedings. A number of things may happen when a case is remanded back to district court, including the possibility the case gets settled, or proceeds to trial.

The appeals court provided the following background on the case:

On the evening of Jan. 18, 2017, and into the early morning hours of Jan. 19, 2017, about 200 people gathered on a bridge near a law enforcement blockade and held a peaceful protest.

Having heard that officers were shooting unarmed protesters, including elders and women, Mitchell decided to go to the bridge.

At one point, Mitchell positioned himself in front of women and elders and with his hands raised in the air said in the Lakota language: "Water is life."

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After a countdown, several officers fired lead-filled beanbags at Mitchell, who was hit in three places, including his head.

Mitchell was arrested and charged with criminal trespass and obstruction of a government function.

The criminal case did not go to trial, but instead Mitchell and the state entered into a pretrial diversion agreement in which the state conditionally agreed to dismiss the charges.

The appeals court ruling found that while Mitchell's First Amendment rights were not violated, his Fourth Amendment rights were, because the force used in the situation was unreasonable given the totality of the circumstances and the low-level nature of the crimes Mitchell was suspected of committing.

"We have held time and again that, if a person is not suspected of a serious crime, is not threatening anyone, and is neither fleeing nor resisting arrest, then it is unreasonable for an officer to use more than de minimis (minimal) force against him," the court stated in its opinion.

The court added that the complaint filed against Mitchell did not suggest he was suspected of anything more than trespassing and obstructing government function, both nonviolent misdemeanors.

"Nonetheless," the court said, "the officers shot Mitchell with shotgun-propelled, lead-filled beanbags that shattered his eye socket. Our cases clearly establish that gentler treatment than this constitutes more than de minimis force," the court added.

The court also ruled that because it was clearly established that the officers' alleged conduct violated Mitchell's Fourth Amendment rights, the court must assume that the officers who allegedly shot Mitchell are not entitled to qualified immunity. Without qualified immunity, officers can be sued.

I'm a reporter and a photographer and sometimes I create videos to go with my stories.

I graduated from Minnesota State University Moorhead and in my time with The Forum I have covered a number of beats, from cops and courts to business and education.

I've also written about UFOs, ghosts, dinosaur bones and the planet Pluto.

You may reach me by phone at 701-241-5555, or by email at dolson@forumcomm.com
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