211071P.pdf   03/14/2022  Marcus Mitchell  v.  Kyle Kirchmeier
   U.S. Court of Appeals Case No:  21-1071
   U.S. District Court for the District of North Dakota - Western   
   [PUBLISHED] [Gruender, Author, with Chief Judge Smith and Kobes, Circuit 
   Judges] 
   Civil Case ? Civil Rights. 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. 
   Mitchell positioned himself in front of women and elders in the crowd with 
   his arms raised. Officers shot him with lead-filled bean bags from their 
   shotguns, injuring him. Mitchell appeals the district court dismissal of 
   all claims against various officials. As for the claims for retaliatory 
   use of force and retaliatory arrest in violation of the First Amendment, 
   first the claims are not barred by Heck because Mitchell?s pretrial 
   diversion agreement is not a conviction or sentence but are otherwise 
   properly dismissed because Mitchell did not plead facts that make an 
   inference of retaliatory animus plausible. The district court erred in 
   dismissing the excessive force claims against the officers who shot him 
   under the Fourth Amendment, as the complaint asserted use of more than de 
   minimus force when Mitchell did not threaten anyone, flee, or resist 
   arrest and the law was clearly established. The allegations showed a 
   pattern by law enforcement using excessive force, with tacit approval by 
   the policymaker, and the unconstitutional conduct caused Mitchell?s 
   injury and thus the district court erred in dismissing the claim for 
   municipal liability under Monell. The district court also erred in 
   dismissing the claims against Sergeant Kennelly for failing to intervene. 
   Mitchell?s equal protection claims were properly dismissed as he failed 
   to allege facts non-Native Americans were treated more favorably than he 
   was. Case is remanded.