The Supreme Court on May 27 ordered a lower court to take another look at whether a Minnesota police officer may be sued for using excessive force during a riot.

The Supreme Court’s decision in Bauer v. Marks took the form of an unsigned order. The high court did not explain its ruling, which was issued without holding oral argument in the case. No justices dissented.

The action of Minneapolis police officer Benjamin Bauer took place on May 28, 2020, which was three days after George Floyd died in police custody in Minneapolis. Floyd’s death led to protests nationwide, some of which involved violence.

Lower courts determined that a jury might reasonably conclude that alleged rioter Ethan Daniel Marks did not pose an immediate threat when Bauer fired a chemical-filled projectile at him.

Bauer said in a petition filed with the Supreme Court in December 2024 that he was present at a large protest that turned into a riot “as rocks and objects were hurled by a hostile crowd numbering over 500 people.” Bauer said he saw Marks attacking another police officer and aimed a projectile at Marks’s torso.

Judge Ann D. Montgomery of the U.S. District Court in Minnesota found that “the chemical-filled projectile ruptured Marks’s right eyeball, causing him to become legally blind in that eye.”

Marks sued under 42 U.S. Code, Section 1983, a federal statute that allows individuals to sue governments for civil rights violations. He alleged Bauer violated his rights under the Fourth and 14th amendments.

Marks experienced a ruptured right eyeball, detached retina, fractured eye socket, and a traumatic brain injury. After multiple surgeries, Marks remains legally blind in one eye and experiences headaches, reduced visual motor skills and depth perception, balance problems, and nerve damage, the judge determined.

Montgomery rejected Bauer’s argument that qualified immunity barred Marks’s claim that excessive force was used.

Qualified immunity is a rule created by the courts that shields government officials, including police officers, from individual liability unless the accused violated a clearly established right.

Civil libertarians in recent years have become increasingly critical of the qualified immunity legal doctrine, which they say allows government officials to escape liability for sometimes egregious wrongdoing.

Montgomery said the court “cannot conclude that Officer Bauer’s use of force was objectively reasonable as a matter of law.”

“Although a jury may agree with Officer Bauer’s assessment of the incident at trial, the evidence viewed in the light most favorable to Marks shows that Officer Bauer violated Marks’s constitutional right to be free from excessive force,” the judge wrote.

Montgomery denied Bauer’s motion to dismiss the lawsuit based on his qualified immunity defense. The U.S. Court of Appeals for the Eighth Circuit affirmed in July 2024.

In its new order, the Supreme Court sent the case back to the Eighth Circuit “for further consideration in light of Barnes v. Felix.”

In Barnes v. Felix, the Supreme Court ruled unanimously on May 15 that in determining if a use of force was unreasonable, courts may look beyond the precise moment the allegedly excessive force was used.

“To assess whether an officer acted reasonably in using force, a court must consider all the relevant circumstances, including facts and events leading up to the climactic moment,” Justice Elena Kagan wrote for the court.

That ruling benefited the mother of a man killed by police during a traffic stop, who may now pursue a civil rights lawsuit against the police officer who shot her son.

However, the Supreme Court’s new ruling gives Bauer another chance to demonstrate that his use of force against Marks was objectively reasonable in the circumstances.

Jess Olstad of the Minneapolis City Attorney’s Office, which represents Bauer, told The Epoch Times her office “does not comment on pending litigation.”

The Epoch Times contacted Marks’s attorney, Robert Bennett of Robins Kaplan in Minneapolis, for comment but received no reply by publication time.

This article by Matthew Vadum appeared May 29, 2025, in The Epoch Times.