On March 14, 2022, the United States Court of Appeals for the Eighth Circuit issued an opinion in a case involving claims against law enforcement and municipalities related to the Dakota Access pipeline protests.

Plaintiff Marcus Mitchell filed suit in the United States District Court for the District of North Dakota – Western against Morton County, the City of Bismarck, employees of the City and County in their official capacities, and a North Dakota Highway Patrol Sergeant in his official capacity.

The case had been dismissed at the district court level before any facts had been proven. Mitchell appealed, asking that the Court allow him to present his case in district court and prove the facts he alleged in his complaint to the district court.

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The Court explained that during this type of procedural appeal, the facts as presented by the Plaintiff are presumed to be true because the facts are not at issue yet. Mitchell alleges the following facts: that during the on-going protests against the construction of an oil pipeline across Tribal land in North Dakota, law enforcement engaged in progressively more force against the protesters; that he positioned himself in front of women and elders in the crowd with his arms raised; that officers shot him with lead-filled bean bags from their shotguns, injuring him; and that excessive force was also used against other protesters.

Several national groups filed amicus briefs. These “friend of the court” briefs can be filed by parties that are not part of a case but who want to inform a court about some aspect of a case they are a subject matter expert on. For this appeal, one such brief was filed by Erwin Chemerinsky, current Dean of Berkeley Law School in California and nationally renowned legal scholar of constitutional law and federal civil procedure.

The Court found that the district court properly dismissed some of Mitchell’s claims, both because he did not meaningfully argue them on appeal before the Court and for substantive reasons.

There were two claims categories dismissed for substantive reasons.

First, the Court held Mitchell’s claims for retaliatory use of force and retaliatory arrest in violation of the First Amendment were properly dismissed because Mitchell did not plead facts that made an inference of retaliatory animus plausible.

Second, the Court held Mitchell’s equal protection claims were properly dismissed because he failed to allege facts showing non-Native Americans were treated more favorably than he was.

The Court found that the district court erred in dismissing Mitchell’s excessive force claims (including a failure to intervene claim) under the Fourth Amendment, holding that Mitchell had properly brought claims against the officers who shot him and against the municipality and its representatives.

The Court sent the case back to the district court for further action consistent with its opinion. Read the Court's opinion in Mitchell v. Kirchmeier here.

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