Eighth Circuit Reaffirms: Indiscriminate Crowd-Control During Ongoing Unrest Does Not Support First Amendment Retaliation or Substantive Due Process Liability

Introduction

In Stearns v. Wagner, No. 23-3448 (8th Cir. Dec. 4, 2024), the United States Court of Appeals for the Eighth Circuit, in an opinion authored by Judge Gruender and joined by Judges Kelly and Grasz, affirmed summary judgment against a protester who suffered catastrophic eye injury during the late-night phase of the May 30, 2020 Kansas City protests that followed the death of George Floyd. Plaintiff–Appellant Sean Stearns alleged First Amendment retaliation and excessive force under the Fourth and Fourteenth Amendments against Missouri State Highway Patrol Sergeant Jeffrey Spire (the “grenadier” who deployed crowd-control munitions), and pursued a Monell claim against the Kansas City Board of Police Commissioners, as well as state-law claims.

The key issues on appeal were:

• Whether the officer was entitled to qualified immunity on First Amendment retaliation and Fourteenth Amendment substantive due process claims;
• Whether Stearns’s Fourth Amendment claim was preserved;
• Whether Monell liability could attach to the Police Board absent a constitutional violation; and
• Whether the district court abused its discretion in declining supplemental jurisdiction over Missouri state-law claims after disposing of the federal claims.

The court’s central holdings reinforce a growing body of Eighth Circuit protest-policing jurisprudence: indiscriminate use of crowd-control munitions in rapidly evolving unrest does not “single out” protesters for First Amendment retaliation and does not reach the “conscience-shocking” threshold required for Fourteenth Amendment liability absent intent to harm.

Summary of the Opinion

Applying de novo review of summary judgment, the Eighth Circuit affirmed in full:

• First Amendment retaliation: Qualified immunity applies. Stearns failed to show retaliatory animus or that he was “singled out.” The officer’s actions were indiscriminate crowd-control measures during ongoing unrest, aligning with Aldridge and De Mian.
• Fourth Amendment excessive force: The claim was waived for inadequate briefing and lack of supporting authority.
• Fourteenth Amendment substantive due process: Qualified immunity applies. No evidence of intent to harm, and the “deliberate indifference” variant of the standard is inapplicable where officers lack time for unhurried decision-making. The officer’s conduct did not “shock the conscience.”
• Monell: Absent any underlying constitutional violation, the Police Board cannot face § 1983 municipal liability (Whitney).
• State-law claims: The district court did not abuse its discretion in declining supplemental jurisdiction after dismissing federal claims; the state claims were dismissed without prejudice.

The court expressly declined to decide whether the officer’s use of “skipping” projectiles was reasonable under the circumstances, noting it was unnecessary to resolve the case on that ground.

Detailed Analysis

Procedural Posture and Standard of Review

The district court granted summary judgment to all defendants. On appeal, the Eighth Circuit reviewed de novo, viewing the evidence in the light most favorable to Stearns and giving him the benefit of all reasonable inferences. See De Mian v. City of St. Louis, Mo., 86 F.4th 1179, 1182 (8th Cir. 2023); Fed. R. Civ. P. 56(a).

First Amendment Retaliation

To prevail, Stearns had to demonstrate: (1) protected activity; (2) adverse action that would chill a person of ordinary firmness; and (3) retaliatory animus as a but-for cause of his injury. See Molina v. City of St. Louis, Mo., 59 F.4th 334, 338 (8th Cir. 2023). The causal connection ordinarily presents a jury question, but only where evidence supports it; mere temporal proximity is insufficient.

Precedents Cited and Their Influence

• Quraishi v. St. Charles Cnty., Mo., 986 F.3d 831 (8th Cir. 2021): Journalists were “singled out” where tear gas was directed at them, but not at others in the vicinity. This is the paradigmatic example of a targeted group.
• Green v. City of St. Louis, Mo., 52 F.4th 734 (8th Cir. 2022): A small group was singled out about an hour after protests had dispersed; officers mocked them while gassing them as they tried to leave peacefully.
• Aldridge v. City of St. Louis, Mo., 75 F.4th 895 (8th Cir. 2023): No singling out where pepper spray was used indiscriminately as a crowd-control tactic. “One cannot simultaneously single out the appellants and ‘indiscriminately’ spray the crowd.”
• De Mian v. City of St. Louis, Mo., 86 F.4th 1179 (8th Cir. 2023): Indistinguishable from Aldridge on the “indiscriminate” deployment point; again, no singling out.
• Molina v. City of St. Louis, Mo., 59 F.4th 334 (8th Cir. 2023): In the minutes following violent unrest, officers reasonably could believe a small group’s reassembly was not protected, distinguishing cases like Green where the protest had long since dispersed.
• Bernini v. City of St. Paul, 665 F.3d 997 (8th Cir. 2012): Recites the basic qualified-immunity principle; protects officials unless they violate clearly established rights a reasonable officer would know.

Legal Reasoning

The court emphasized two themes: timing and targeting.

• Timing: Stearns conceded that just minutes before his injury, handheld munitions were being used to “effectively and safely” control the crowd. The panel found the circumstances “closer to Molina,” where officers had recently been dodging projectiles and the situation remained fluid, than to Green, where the protest had been over for an hour.
• Targeting: It was undisputed that Sergeant Spire “did not fire at a specific person” and “indiscriminately fired into a group of people” using a skipping technique as the crowd retreated. Under Aldridge and De Mian, indiscriminate crowd-control measures during unrest do not “single out” particular speakers; without singling out, the causal link to retaliatory animus fails as a matter of law.

Because Stearns failed to show a constitutional violation on the retaliation claim, the court did not need to reach the “clearly established” prong of qualified immunity. Qualified immunity thus barred the First Amendment claim.

Fourth Amendment Excessive Force

The court deemed the Fourth Amendment claim waived because the appellant did not provide a meaningful argument or cite relevant authority. See Waters v. Madson, 921 F.3d 725, 744 (8th Cir. 2019).

Note: The panel expressly stated it did not decide whether Sergeant Spire’s deployment of projectile shells was reasonable under the circumstances—a question that might otherwise fit a Fourth Amendment framework—because the case was resolved on other grounds.

Fourteenth Amendment Substantive Due Process (Excessive Force)

Substantive due process requires both (1) a violation of a fundamental right and (2) conduct that “shocks the conscience.” See Truong v. Hassan, 829 F.3d 627, 631 (8th Cir. 2016). Typically, a plaintiff must show intent to harm; in limited contexts where officials have time for “unhurried judgments,” deliberate indifference may suffice. See also White v. Smith, 696 F.3d 740, 757–58 (8th Cir. 2012) (only the most severe abuses of power meet the conscience-shocking standard).

Precedents Cited and Their Influence

• Truong: Sets the two-part test and emphasizes that deliberate indifference is reserved for contexts where actual deliberation is practical (e.g., custodial settings).
• White: Reinforces that “only the most severe violations” stemming from “brutal and inhumane abuse of official power” will satisfy the conscience-shocking bar.

Legal Reasoning

Stearns argued the “skipping” of projectiles as the crowd was beyond throwing distance was “brutal and inhumane.” The panel assumed arguendo the measures may have been used longer or more aggressively than necessary, but found no record evidence of intent to harm. Moreover, because the events unfolded in a rapidly evolving, late-night crowd-control scenario, the lower “deliberate indifference” threshold did not apply—the officer lacked time for unhurried judgment. On these facts, the conduct did not shock the conscience, and no Fourteenth Amendment violation occurred. Qualified immunity therefore applied.

Monell Liability

Municipal liability under § 1983 requires an underlying constitutional violation. See Whitney v. City of St. Louis, Mo., 887 F.3d 857, 861 (8th Cir. 2018). Because Stearns failed to establish a violation by Sergeant Spire, his Monell claim against the Kansas City Board of Police Commissioners necessarily failed.

State-Law Claims and Supplemental Jurisdiction

After disposing of all federal claims, the district court declined supplemental jurisdiction over the state-law claims and dismissed them without prejudice. The Eighth Circuit affirmed, citing the “usual case” principle: when federal claims drop out before trial, the balance of factors ordinarily favors declining supplemental jurisdiction. See Aldridge, 75 F.4th at 901. No abuse of discretion was found.

Scope and Narrowness of the Holding

The panel expressly did not resolve whether the use of projectiles—specifically, the “skipping” technique—was reasonable or necessary in light of defendants’ contention that protesters had used firework mortars. That question remains open for a case where it is outcome-determinative. The decision instead rests on the absence of a constitutional violation under the First and Fourteenth Amendments and on waiver of the Fourth Amendment claim.

Complex Concepts Simplified

• Qualified immunity: A shield for government officials sued for damages; it applies unless the plaintiff shows (a) a constitutional violation, and (b) that the right was clearly established at the time. Courts may resolve the case on either prong.
• First Amendment retaliation and “singling out”: Even in a protest, plaintiffs must show they were targeted because of protected expression. If force is used indiscriminately against a crowd to control unrest, courts in the Eighth Circuit have held this does not “single out” speakers.
• “But-for” causation: The adverse action must be tied to retaliatory animus; timing alone is not enough.
• Fourth vs. Fourteenth Amendment excessive force: Force used “in the course of” seizures is typically analyzed under the Fourth Amendment reasonableness standard. Substantive due process covers different territory and requires conscience-shocking conduct—usually intent to harm. In fast-moving situations, deliberate indifference generally is not the test.
• “Shocks the conscience”: A very high bar for due process claims—reserved for egregious abuses of power, not mere errors in judgment or even some reckless conduct during emergencies.
• Monell liability: A municipality (or comparable entity) can only be liable for constitutional violations caused by its policy, custom, or failure to train—but only if a predicate constitutional violation occurred.
• Supplemental jurisdiction: Federal courts can hear related state claims, but commonly decline when all federal claims are resolved early, leaving state courts to decide purely state-law issues.
• Waiver by inadequate briefing: Appellate courts will deem claims forfeited if not supported by developed argument and legal authority.

Practical Implications and Impact

For Future Protest Litigation

• Retaliation claims require targeting evidence: Plaintiffs must plead and prove facts showing they (or a discrete, identifiable group) were specifically targeted for their protected expression. Indiscriminate use of force amid ongoing unrest will generally defeat the “singling out” element under Aldridge, De Mian, and now Stearns.
• Temporal context matters: The “ongoing unrest” vs. “protest long dispersed” distinction is central. Minutes after violent encounters (Molina) is not the same as an hour after dispersal (Green).
• Fourth Amendment is often the principal frame—but must be preserved: Because the Eighth Circuit sets a high bar for substantive due process claims in fast-moving events, plaintiffs should develop Fourth Amendment theories with record evidence and authority. Stearns illustrates the costs of waiver.
• Intent standard for due process: Absent evidence of intent to harm, substantive due process claims for crowd-control force are unlikely to succeed. The “deliberate indifference” alternative is rarely available in dynamic public-order scenarios.
• Monell claims rise and fall with an underlying violation: Without a predicate constitutional wrong, municipal-liability claims will be dismissed summarily (Whitney).

For Law Enforcement and Municipal Risk Management

• Indiscriminate crowd-control is not per se unconstitutional: When unrest is ongoing, non-targeted dispersion tactics may be protected by qualified immunity, especially absent evidence of retaliatory motive.
• Documentation and command decision-making: Clear contemporaneous accounts (e.g., timeline of threats, munitions use, warnings) can be pivotal to maintain the “rapidly evolving” context that undercuts due process claims.
• Training on transitions: Agencies should train for the “transition” from unrest to dispersal, including criteria for scaling down force. While Stearns found no violation, it leaves open reasonableness questions about techniques like “skipping” rounds toward retreating crowds.

For Plaintiffs and Civil Rights Counsel

• Develop targeting evidence: Identify statements, commands, video, or pattern evidence showing press, legal observers, or specific speakers were treated differently from others (Quraishi, Green paradigms).
• Preserve and brief the Fourth Amendment claim: Provide legal authority and fact-specific argument; avoid relegating key issues to footnotes or cursory treatment.
• Consider expert testimony: On munitions effects, deployment distances, incapacitation risk, and accepted police practices—particularly if litigating reasonableness under the Fourth Amendment in other cases.

Conclusion

Stearns v. Wagner consolidates and extends the Eighth Circuit’s recent protest-policing line: an officer’s indiscriminate deployment of crowd-control munitions during ongoing unrest does not “single out” protesters for First Amendment retaliation, and, absent intent to harm, does not satisfy the “shocks the conscience” threshold required for a Fourteenth Amendment substantive due process claim. Coupled with waiver of the Fourth Amendment theory, these holdings foreclosed Stearns’s federal claims and, in turn, his Monell claim. The court’s measured approach—expressly declining to decide whether the projectile “skipping” technique was objectively reasonable—preserves space for future Fourth Amendment litigation focused on tactics and proportionality, while signaling that successful First Amendment retaliation and substantive due process claims will require targeted animus and egregious conduct not present in rapidly unfolding public-order scenarios.

The decision underscores critical litigation lessons: timing and targeting are decisive in retaliation claims; conscience-shocking conduct remains an exceedingly high bar outside custodial contexts; and careful appellate briefing is essential to preserve and develop excessive force claims under the Fourth Amendment. As a practical matter, Stearns will likely continue to guide protest-related suits within the Eighth Circuit, channeling disputes toward fact-rich reasonableness inquiries and away from broad theories of retaliatory or due process-based liability when force is used indiscriminately amid fluid and dangerous crowd conditions.