Perkins v. City of Des Moines, 2026 WL 620409 (8th Cir. 2026)
Like many U.S. cities, Des Moines, Iowa, experienced civil unrest in the summer of May 2020. Protests following George Floyd’s death had turned into rioting and looting around Merle Hay Mall (where I learned to ride a bike over 60 years ago). On the night of May 31, crowds were overwhelming the city in spite of dispersal orders issued by law enforcement. A special team, including an officer operating a Bearcat armored vehicle, was assigned to clear the area and was authorized to use tear gas and impact rounds.
Monica Perkins was not part of the police team’s target group in any arrest sense. She and her daughter had driven into the area, saw the chaos, and ended up stopped on Merle Hay Road near the mall. Perkins got out of her vehicle and was arguing with another driver in the roadway when Deputy Jason Tart fired a single foam impact projectile from roughly 60 to 75 feet away. The less-lethal round struck Perkin’s hand and broke a finger. She got back into her car and drove away.
Perkins sued, claiming excessive force under the Fourth Amendment, violation of substantive due process under the Fourteenth Amendment, and failure to intervene against the supervising officers. The trial court granted, and the appellate court affirmed, summary judgment for the officers.
“A use of force constitutes a seizure only when it objectively manifests an intent to restrain.”
The court’s opinion focuses on the Fourth Amendment threshold question of whether Perkins was seized at all. Relying on Torres v. Madrid (see here for my analysis of this case), the court explained a use of force constitutes a seizure only when it objectively manifests an intent to restrain. Accidental force does not qualify, and force intentionally applied for some other purpose does not qualify either.
That distinction controlled the outcome here. The Bearcat team was not pursuing Perkins for arrest. It was moving through an active riot scene under orders to disperse people and reestablish control. The court held, under the totality of the circumstances, Deputy Tart’s actions objectively manifested an intent to disperse, not to restrain. Because there was no seizure, there was no Fourth Amendment excessive-force claim.
Perkins also lost on substantive due process. The appellate court held this was not the type of brutal, conscience-shocking conduct required for a Fourteenth Amendment violation. Tart was working in a fast-moving crowd-control situation, under orders, using one authorized less-lethal round. That was not enough to show an intent to harm.
The failure-to-intervene claim failed for a simple reason: Without an underlying constitutional violation by Tart, there was nothing for the other officers to intervene against.
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Here are a few takeaways for officers:
- Not every use of force is a seizure. If the force is used to repel or disperse rather than to restrain, the Fourth Amendment may not apply at all.
- Intent is judged objectively. Courts will look at the mission, the setting, the officer’s role, and what happened afterward. Here, the riot-control mission and the fact that Perkins was not pursued or arrested mattered.
- No underlying violation, no duty to intervene. Failure-to-intervene claims depend on an actual constitutional violation by the primary actor.
The clean rule from Perkins is that force used to clear a riot scene is not automatically force used to seize someone.
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