Almost five years to the day after Ethan Marks was shot in the face and blinded by a projectile fired by a Minneapolis police officer during the unrest that followed the killing of George Floyd, the U.S. Supreme Court dealt him a legal setback.

Attorneys with the city of Minneapolis have for years been trying and failing to get Marks' federal lawsuit against officer Benjamin Bauer dismissed. Their motion to dismiss was denied in U.S. District Court in 2022. That decision was affirmed by the U.S. Court of Appeals for the Eighth Circuit last year.

Bauer then filed a petition asking the Supreme Court to review those decisions.

On Tuesday, the Supreme Court vacated the lower court rulings and sent the case back to the Court of Appeals. In doing so, it directed the court to look at the lawsuit anew in light of a recent unanimous decision by the Supreme Court clarifying how excessive force cases should be considered.

Legal representatives for Bauer cast the decision as a victory for law enforcement.

The Minnesota Police and Peace Officers Association (MPPOA), which filed a brief in Bauer's defense with the Supreme Court, said Tuesday the decision was "a tremendous win for Officer Bauer."

However, Marks' attorney said the case is far from settled.

"The MPPOA is claiming victory, I understand," said Robert Bennett, a partner at Robins Kaplan, who has been working on behalf of Marks for five years. "It's sort of like what Mark Twain said: Reports of our death have been greatly exaggerated.

"We don't expect a different result," Bennett continued. "Until they get a judgment against us, they really shouldn't say they won because they didn't. We'll see what the Eighth Circuit does."

Attorneys for the city of Minneapolis had no comment beyond acknowledging the Supreme Court decision.

All of the sides are intimately familiar with each other. In 2022, after a U.S. District Court judgment against the city, Minneapolis paid another man, Soren Stevenson, $2.4 million. Stevenson also was shot by a projectile fired by police and lost an eye during a protest after Floyd's murder. Stevenson alleged in his lawsuit that Bauer, the same officer as in Marks' case, fired the projectile. In addition to the money paid to Stevenson, the city also paid $1.5 million in legal fees to the law office of Robins Kaplan, which represented Stevenson. The city has denied there was any truth to Stevenson's claim and admitted no liability.

New precedent from Supreme Court

In sending the case back to the Court of Appeals, the Supreme Court said it should be taken under further consideration in light of a unanimous decision made two weeks ago in Barnes v. Felix.

The Supreme Court opinion in that case, delivered by Justice Elena Kagan, was a rejection of previous Circuit Court decisions around law enforcement shootings that focused on the "moment-of-threat" rule. That rule says cases of excessive force should be decided based on the exact moment an officer perceived a threat that prompted them to act.

"We reject that approach as improperly narrowing," Kagan wrote. "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."

Pointing to the Barnes v. Felix result, the MPPOA said it was "optimistic that the lower courts will arrive at the right result this time and dismiss this complaint" against Bauer.

Bennett said the Supreme Court decision actually reinstated an excessive force case against law enforcement and it will simply make the Court of Appeals reconsider the time frame of Bauer's decision to shoot Marks.

"There's three videos of what happened," Bennett said. "There's a little more time consideration. That's all, and frankly in most situations, that's a plaintiff-friendly deal."

Less-lethal launcher

According to court documents, including depositions and investigations using police body camera footage, the circumstances involving Marks and Bauer unfolded like this:

On May 28, 2020, Marks and his mother were helping with cleanup in the Longfellow neighborhood in Minneapolis after rioting and looting following Floyd's murder that destroyed several businesses. Police arrived after reports of someone being stabbed in the crowd.

Bauer, who was a member of the Minneapolis Police Department's SWAT team, arrived in a white van that onlookers pelted with rocks, frozen water bottles and glass.

The stabbing victim was loaded into an SUV. As that was happening, another victim was hit with a baseball bat. Bauer went to provide support. So did Marks' mother, who was a registered nurse. A conflict arose after another MPD officer pushed Marks' mother. Marks, who was 19 at the time, told the officer to back up as he shouted an expletive and shoved the officer.

Bauer turned around at that moment. The other officer shoved Marks and Marks stumbled over a pipe behind him. The officer who shoved Marks testified that at that moment he no longer viewed Marks as a threat and did not use any additional force.

However, Bauer, equipped with a "40-millimeter direct impact less-lethal launcher" that was loaded with a chemical agent, saw an immediate threat. As Marks fell, Bauer fired the weapon. The round hit Marks in the face and exploded on contact.

Marks was left with a ruptured right eyeball, detached retina, fractured eye socket and a traumatic brain injury.

Bauer has claimed he was trying to shoot Marks in the torso.

Marks filed his lawsuit in 2020 against several officers and former Chief Medaria Arradondo, but after years of legal maneuvering, Bauer is the only current defendant.

In 2022, U.S. District Judge Ann Montgomery denied a motion to dismiss the lawsuit against Bauer. She concluded that Bauer did not have qualified immunity from the lawsuit because his conduct could be viewed as violating Marks' civil rights.

The U.S. Court of Appeals for the Eighth Circuit affirmed that ruling last year. Senior Judge Michael Melloy and Judge Ralph Erickson affirmed the decision while Judge David Stras dissented.

Both Erickson and Stras were appointed by President Donald Trump, while Melloy was appointed by former President George W. Bush.

Erickson wrote that a reasonable jury could find that Marks' behavior that day "did not pose an immediate threat" to the officers working to control the crowd.

Instead, he shot Marks, who was unarmed, while he was falling down.

"At the time of this incident, it was clearly established that it is unlawful to shoot an unarmed man who was falling and posing no imminent threat to officers or to anyone else," Erickson wrote.

Stras wrote that the case law the Court of Appeals was using was multifaceted and lacked factually similar circumstances to this specific case. He said Bauer was facing a frenzied crowd, dealing with several injured people and making a "split-second judgment to use his less-lethal launcher rather than giving an angry six-foot-tall man another chance to attack a fellow officer."

He ended his dissent by writing that the ruling told police to "think twice before acting" regardless if their life or the life of a fellow officer is in danger "because a court may step in later and second-guess your decision."