The opinion
United States Court of Appeals
For the Eighth Circuit
___________________________
No. 24-1911
___________________________
Sophia Wilansky
Plaintiff - Appellant
v.
Morton County, North Dakota; Kyle Kirchmeier, in his official capacity; Adam J.
Dvorak, in his personal capacity; Jonathan R. Moll, in his personal capacity
Defendants - Appellees
Thomas Iverson, in his personal capacity
Defendant
___________________________
No. 24-1919
___________________________
Sophia Wilansky
Plaintiff - Appellant
v.
Paul D. Bakke, In his personal capacity; Thomas M. Grosz, In his personal
capacity; Matthew J. Hanson, In his personal capacity; Michael W. Hinrichs, In his
personal capacity; Travis A. Nelson, In his personal capacity; Joshua W. Rode, In
his personal capacity; Evan M. Savageau, In his personal capacity; Travis M. Skar,
In his personal capacity; Glen Ternes, In his personal capacity; Justin W. White, In
his personal capacity; Derek J. Arndt; Kyle Kirchmeier, In his official capacity;
North Dakota Morton County
Defendants - Appellees
____________
Appeal from United States District Court
for the District of North Dakota - Eastern
____________
Submitted: December 16, 2025
Filed: June 24, 2026
____________
Before LOKEN, LAVENSKI R. SMITH, and KOBES, Circuit Judges.
____________
KOBES, Circuit Judge.
Sophia Wilansky was severely injured by an aerial warning munition police
fired during a pipeline protest. She sued under 42 U.S.C. § 1983, alleging that
county and state officers used excessive force and that Morton County, North Dakota
failed to train them, ratified their unconstitutional actions, and maintained an
unconstitutional policy or custom. Wilansky filed a second suit based on the same
events, adding more defendants and allegations. The district court1 dismissed both
cases with prejudice. We affirm.
I.
These are the relevant facts alleged by Wilansky. See Mitchell v. Kirchmeier,
28 F.4th 888, 893 (8th Cir. 2022). In September 2016, protesters opposing the
Dakota Access Pipeline camped on the southern side of Backwater Bridge on North
Dakota Highway 1806. Authorities closed the bridge and stationed officers to its
1
The Honorable Daniel M. Traynor, United States District Judge for the
District of North Dakota.
-2-
north. Police were armed with less-lethal munitions2 and set up a barricade
comprising two burned trucks backed by concrete roadblocks and rings of razor
wire.
On the night of November 20, protesters clashed with police and towed away
one of the barricade trucks. Police fired less-lethal munitions. When things quieted
down, Wilansky walked to the bridge, where she remained for about an hour.
Another protester joined her near the remaining truck, and they talked for a few
minutes. Police ordered them to leave: “We see you behind the truck and underneath
the truck. Get out now. Return to the south side of the bridge. Otherwise, we will
use less-lethal munitions.”3 Neither moved, and the other protester yelled back that
there was no one under the truck. Officers Dvorak, Arndt, and Hanson then fired
less-lethal munitions, including a stinger ball, at Wilansky as she ducked behind a
metal sheet next to the truck. Officers Skar, Hinrich, Rode, and Arndt moved west
to get a better line of sight.
Wilansky ran south after a less-lethal munition fired by either Officer Arndt
or Hanson hit her arm. About 30 yards away, she stopped to pick up a piece of
plywood. As she leaned down, she was hit with an aerial warning munition 4 fired
by Officer Moll. It tore the flesh off her arm, and she fell to the ground. Other
protestors carried her away and drove her to a nearby casino, and she was taken to
the hospital. Officers laughed and congratulated Officer Moll on his
2
Less-lethal munitions include rubber and sponge bullets, pepper spray,
pepper balls, lead beanbags, tear gas, and flashbangs.
3
Wilansky’s complaints used different language, but she does not dispute that
we may consider the command’s exact words as captured in a video recording of the
incident. See, e.g., Young v. Keyes, 176 F.4th 576, 577 (8th Cir. 2026); Ching ex rel.
Jordan v. City of Minneapolis, 73 F.4th 617, 621 (8th Cir. 2023).
4
An aerial warning munition is a flashbang embedded in a less-lethal bullet.
It is designed to be fired above crowds for dispersal.
-3-
“marksmanship.” 5 Wilansky was not arrested or detained. Her left hand and
forearm are permanently and severely injured.
II.
These cases have an unusual procedural history. When the defendants moved
to dismiss the first complaint, the district court converted the motion to one for
summary judgment and granted limited discovery so that Wilansky could identify
the officers, including who fired the aerial warning munition. She asked for leave
to amend her complaint “to substitute [named] officers” for the John Doe defendants,
and the district court granted leave for that purpose. See Fed. R. Civ. P. 15(a)(2).
Wilansky’s amended complaint did more than name the officers—it added
factual allegations. The defendants moved to strike, and the court ordered Wilansky
to show cause why it should accept her beyond-the-scope changes. Unsatisfied with
her response, the court struck the new allegations and several new defendants and
ordered Wilansky to file a second amended complaint that complied with its order,
which she did. But she also filed a second lawsuit with new factual allegations and
claims against the ten stricken defendants. The defendants then abandoned their
summary judgment briefing and moved to dismiss based on the operative complaints
in both cases. The district court did so with prejudice.
We review the district court’s dismissal de novo, Mitchell, 28 F.4th at 895,
and its decision to do so with prejudice for abuse of discretion, Ellis v. Nike USA,
Inc., 158 F.4th 932, 936 (8th Cir. 2025). Wilansky concedes that the “district court
correctly determined that the claims in the Primary and Companion Complaints must
rise or fall together.”
5
The defendants dispute this, but we accept the facts alleged in the complaint.
Mitchell, 28 F.4th at 893.
-4-
III.
Wilansky claims officers twice violated her Fourth Amendment right to be
free from unreasonable seizures: first, when she was hit by a less-lethal munition as
she hid behind the metal sheet and second, when the aerial warning hit her and she
fell to the ground. To state a claim for a Fourth Amendment violation, she must
plead “that a seizure occurred and that the seizure was unreasonable.” Dundon v.
Kirchmeier, 85 F.4th 1250, 1255 (8th Cir. 2023). “And because qualified immunity
is at issue, [she] must show that it was clearly established that what happened to
[her] was a seizure.” Keup v. Sarpy County, 159 F.4th 533, 538 (8th Cir. 2025). A
seizure requires an “objective[] manifest[ation]” of “an intent to restrain.” Torres v.
Madrid, 592 U.S. 306, 317 (2021) (emphasis omitted). “Force intentionally applied
for some other purpose” is not enough, id., and we have found it “was not clearly
established as of November 2016 that use of force to disperse” is a seizure, Dundon,
85 F.4th at 1257; see also Keup, 159 F.4th at 538.
A.
We begin with Wilansky’s claims against Officers Bakke, Hinrichs, Nelson,
Rode, Savageau, Grosz, Ternes, White, and Skar. A § 1983 plaintiff “must plead
that each Government-official defendant, through the official’s own individual
actions, has violated the constitution.” Reynolds v. Dormire, 636 F.3d 976, 979 (8th
Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). Wilansky’s
complaint does not allege that defendants Bakke, Nelson, Savageau, Grosz, Ternes,
or White did anything. 6 And the most she says about Officers Skar, Hinrichs, and
6
Wilansky’s first amended complaint says “Law Enforcement Officer
Defendants rapidly fired at [her] with less-lethal munitions,” but then that only some
Officer Defendants “actively participated” “by firing less-lethal munitions” while
others merely “assist[ed]” the “Officer Defendants who were firing.” This is not
enough when, despite discovery, she failed to plead what these officers did. See Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
-5-
Rhode is that they “moved west to get a better line of sight.” That is not
unconstitutional, nor is it a “specific and plausible” allegation showing “a causal link
between each defendant and the specific wrongs” they committed. Faulk v. City of
St. Louis, 30 F.4th 739, 745 (8th Cir. 2022) (emphasis omitted) (dismissing § 1983
claim against officer because the complaint did not set out facts linking his conduct
to the alleged constitutional violations); see also Bell Atl. Corp. v. Twombly, 550
U.S. 544, 545 (2007) (requiring that the complaint “give the defendant fair notice of
what the claim [against them] is and the grounds upon which it rests” (cleaned up)).
The dismissal of the claims against these officers is affirmed.
B.
Wilansky argues that Officers Dvorak, Arndt, and Hanson seized her when
they fired less-lethal munitions at her as she hid behind the metal sheet. The district
court found any seizure was not clearly established because the officers objectively
manifested an intent to disperse. See Dundon, 85 F.4th at 1257. Wilansky asks us
to infer intent to restrain because the officers fired without responding to the
protestor who shouted that there was no one under the truck. But the officers ordered
the pair to “get out now [and] return to the south side of the bridge,” which was an
order to disperse. Their lack of a response to the other protester does not change
that. She also says we can infer an intent to restrain because she felt trapped when
officers fired at her. But “the appropriate inquiry is whether the challenged
conduct objectively manifests an intent to restrain.” Torres, 592 U.S. at 317. It does
not “depend on the subjective perceptions of the seized person.” Id.
The same goes for Wilansky’s arguments that Officer Dvorak showed his
subjective intent to restrain her by shooting a stinger ball directly at her and that
other unidentified officers revealed the same intent by celebrating after a later shot
fired by Officer Moll hit her. Torres’s objective test “focuses on what the officer
communicated through his actions, not what he subjectively thought,” and the
officer’s subjective intent matters “only to the extent it has been conveyed to others.”
Hight v. Williams, 164 F.4th 672, 676 (8th Cir. 2026) (cleaned up). That Officer
-6-
Dvorak may have subjectively aimed to hit Wilansky with a dispersal weapon after
she was ordered to disperse does not objectively manifest an intent to restrain. And
that unidentified officers laughed after Officer Moll later hit Wilansky does not
affect whether Officer Dvorak’s, Arndt’s, and Hanson’s actions objectively
manifested an intent to restrain Wilansky while she hid behind the metal sheet.
Wilansky’s remaining arguments are belied by her own pleadings. First, she
says that the officers had no reason to disperse her because she had been peacefully
at the barricade for over an hour without objection. But the officers did eventually
object. They ordered her to leave and warned they would use less-lethal munitions
if she stayed. And they had reasons for wanting her to leave. She was trespassing,
she failed to comply with a lawful order, and earlier that night there had been a
violent protest. Second, she argues that continuing to fire after she started to retreat
shows an intent to restrain. But she does not allege that Dvorak, Ardnt, or Hanson
fired at her while she was retreating.
Officers Dvorak, Arndt, and Hanson are entitled to qualified immunity on
Wilansky’s Fourth Amendment claim against them because “it was not clearly
established as of November 2016 that use of force to disperse . . . was a seizure.”
Dundon, 85 F.4th at 1257; see also Quraishi v. St. Charles County, 986 F.3d 831,
839–40 (8th Cir. 2021) (not clearly established that using tear gas to disperse
reporters from protest site was a seizure); Martinez v. Sasse, 37 F.4th 506, 510 (8th
Cir. 2022) (not clearly established that a push used to repel a lawyer was a seizure).
C.
That leaves Wilansky’s claim that she was seized “by acquisition of control”
when Officer Moll’s aerial warning munition severely injured her arm, knocked her
down, and left her unable to move. See Torres, 592 U.S. at 322 (“[A] seizure by
acquisition of control involves either voluntary submission to a show of authority or
the termination of freedom of movement.”). To overcome qualified immunity,
Wilansky must point to law clearly establishing that Officer Moll seized her. Keup,
-7-
159 F.4th at 538. A seizure by control requires “that a person be stopped by the very
instrumentality set in motion or put in place in order to achieve that result,” so
Wilansky has to show it was clearly established that Moll’s actions manifested an
objective intent to restrain or stop her. Brower v. County of Inyo, 489 U.S. 593, 599
(1989) (finding “it was enough” to allege a seizure where plaintiff “was meant to be
stopped” by the officers’ roadblock and “he was so stopped”); see also Torres, 592
U.S. at 317, 321–323.
Wilansky says Torres clearly established that shooting someone who is
fleeing is a seizure. But Torres found specifically that “the conduct of the officers—
ordering Torres to stop and then shooting to restrain her movement—satisfies[d] the
objective test for a seizure.” Torres, 592 U.S. at 318. Wilansky was ordered to leave
and was hit with the less-lethal munition after she stopped fleeing, so Torres does
not have “sufficiently similar facts” to “squarely govern” Wilansky’s situation.
Graham v. Barnette, 5 F.4th 872, 887 (8th Cir. 2021) (cleaned up). 7
None of the other cases Wilansky cites involve force used to disperse, see,
e.g., Shekleton v. Eichenberger, 677 F.3d 361, 366 (8th Cir. 2012) (tasering
unarmed, nonviolent individual suspected of only a misdemeanor is excessive
force); Terebesi v. Torreso, 764 F.3d 217, 237–38 (2d Cir. 2014) (clearly established
that the use of stun guns in certain contexts and manners was unreasonable), so they
do not help clearly establish a Fourth Amendment violation, see Graham, 5 F.4th at
887. And some were also decided after 2016, see, e.g., Z.J. ex rel. Jones v. Kansas
City Bd. of Police Comm’rs, 931 F.3d 672, 684 (8th Cir. 2019) (clearly established
that the “use of flash-bang grenades is unreasonable where officers have no basis to
believe they will face the threat of violence and they unreasonably fail to ascertain
whether there are any innocent bystanders in the area it is deployed”), so they also
7
At oral argument, counsel argued that firing an explosive weapon must
manifest an intent to seize, not disperse. But counsel could not point to any clearly
established precedent about whether using certain weapons in certain ways turns a
dispersal into a seizure per se. And in any case, we “do not consider arguments first
raised at oral argument.” Bennie v. Munn, 822 F.3d 392, 398 n.3 (8th Cir. 2016).
-8-
“do[] not constitute clearly established law for purposes of this case,” Dundon, 85
F.4th at 1256.
Because Wilansky has not shown that Officer Moll committed a clearly
established seizure, Moll is entitled to qualified immunity and the district court
properly dismissed the Fourth Amendment claim against him. See Dundon, 85 F.4th
at 1257.
IV.
Wilansky also alleges that Officers Dvorak and Moll used excessive force in
violation of the Fourteenth Amendment. See County of Sacramento v. Lewis, 523
U.S. 833, 843 (1998) (excessive force claims that do not fit under the Fourth
Amendment’s or Eighth Amendment’s protections may be brought under a
Fourteenth Amendment substantive due process claim). To prevail, she must allege
that the officer’s behavior was “so egregious, so outrageous, that it may fairly be
said to shock the contemporary conscience.” Id. at 847 n.8. “[C]onduct intended to
injure in some way unjustifiable by any government interest is the sort of official
action most likely to rise to the conscience-shocking level.” Id. at 849. “Whether
conduct shocks the conscience is a question of law,” Folkerts v. City of Waverly, 707
F.3d 975, 980 (8th Cir. 2013), and “[p]roof of intent to harm is usually required,”
Stearns v. Wagner, 122 F.4th 699, 704 (8th Cir. 2024) (citation omitted).
Wilansky objects that this is the wrong test, and that we should instead
consider whether the officers acted objectively reasonably. See Kingsley v.
Hendrickson, 576 U.S. 389, 397 (2015) (applying objective reasonableness standard
to excessive force claims brought by pretrial detainees); see also Edrei v. Maguire,
892 F.3d 525, 537 (2nd Cir. 2018) (applying Kingsley to “all excessive force claims
brought under the Fourteenth Amendment”). We disagree. Kingsley explicitly
limited its holding to pretrial detainees. 576 U.S. at 402. It did not overturn Lewis,
which requires a shocks-the-conscience test for excessive force claims by non-
pretrial detainees. 523 U.S. at 846–47; see also Agostini v. Felton, 521 U.S. 203,
-9-
237 (1997) (if “a precedent of [the Supreme] Court has direct application in a case,
yet appears to rest on reasons rejected in some other line of decisions, the Court of
Appeals should follow the case which directly controls”). Since Kingsley, we have
applied the shocks-the-conscience standard to Fourteenth Amendment claims. See,
e.g., Stearns, 122 F.4th at 704 (Fourteenth Amendment excessive force claim); see
also Dundon, 85 F.4th at 1257 (same); cf. Truong v. Hassan, 829 F.3d 627, 631 (8th
Cir. 2016) (Fourteenth Amendment due process claim).
According to Wilansky, Officer Moll shocked the conscience when he shot an
aerial munition warning at a lone protester after partial compliance with a dispersal
order. But because qualified immunity is at issue, she has to show that violation was
clearly established. See, e.g., Webster v. St. Louis County, 135 F.4th 614, 617 (8th
Cir. 2025) (officer entitled to qualified immunity because it was not clearly
established that his actions would violate inmate’s Fourteen Amendment right). “To
find that a right is clearly established, courts generally need to identify a case where
an officer acting under similar circumstances was held to have violated the
Constitution.” Zorn v. Linton, 146 S. Ct. 926, 930 (2026) (per curiam) (cleaned up).
Wilansky does not point us to any cases but instead argues it’s a “commonsense
inference” that aiming and firing an aerial munition weapon directly at someone is
either a seizure or shocks the conscience. That inference, if it exists, is not enough
to carry her burden. See Zorn, 146 S. Ct. at 930 (“Officers receive qualified
immunity unless they could have read the relevant precedent beforehand and known
that it proscribed their specific conduct.” (cleaned up)); Hess v. Ables, 714 F.3d
1048, 1051 (8th Cir. 2013) (“The plaintiff bears the burden of proving that the law
was clearly established.”).
V.
Turning to Monell, Wilansky argues that because the plaintiff in Mitchell
sufficiently alleged a pattern or practice of unconstitutional conduct against Morton
County and Sherriff Kyle Kirchmeier, she has too. Mitchell, 28 F.4th at 901. But
there are significant differences between Wilansky’s and Mitchell’s complaints.
Both alleged that on October 22 and October 27, officers deployed less-lethal bullets
-10-
and pepper spray at protestors and that on November 20, they used water, chemical
repellents, and other less-lethal weapons to break up the protest that immediately
preceded Wilansky’s injury. Id. at 893. Mitchell’s complaint went on to say that
during the two months between Wilansky’s injury and his own in January 2017, “law
enforcement officers continually deployed weapons such as bean bag guns” against
peaceful protesters. Id. at 901. He also relied on Wilansky’s injury to establish that
the force used against him was part of a pattern, not an isolated incident. Id.
Wilansky, on the other hand, alleged that as of November 2016, Morton County had
an unconstitutional “policy or custom of using explosive less-lethal munitions.” She
does not allege that either October incident involved explosive less-lethal munitions,
and the alleged misuse of those munitions on November 20 is not enough to establish
“[t]he existence of a continuing, widespread, persistent pattern.” Id. at 899. That
Mitchell pleaded a pattern of excessive force against peaceful protestors as of
January 2017, does not mean that Wilansky pleaded a pattern of inappropriately
using explosive munitions as of November 2016.
VI.
Finally, we do not think the district court abused its discretion by dismissing
Wilansky’s claims with prejudice. In Ellis, we held that it was not an abuse of
discretion to dismiss with prejudice when the plaintiff, faced with a 12(b)(6) motion,
chose to “stand on her complaint,” rather than seeking leave to amend and cure its
deficiencies. 158 F.4th at 937. We also rejected the idea the court should have
dismissed Ellis’s claims without prejudice based on “a single line” in her opposition
to the motion to dismiss which “request[ed] leave to amend again if the court
dismissed her complaint.” Id. Like Ellis, Wilansky had “months to properly seek
leave to file a second amended complaint by filing a motion to amend.” Id. at 936
(emphasis omitted). But she did not amend her pleadings as a matter of right, see
Fed. R. Civ. P. 15(a)(1), nor did she move for additional leave to add or alter her
factual allegations, see Fed. R. Civ. P. 15(a)(2). And unlike Ellis, she did not make
even a passing request that if the court granted the defendants’ motion, it should also
-11-
grant her leave to amend. Under these circumstances, we affirm the dismissal of
Wilansky’s claims with prejudice. Ellis, 158 F.4th at 937.
The judgments of the district court are affirmed.
______________________________
-12-