Omaha SWAT officer wins key ruling in lawsuit over 2020 protest flashbang

Tosun Fitil, the Omaha protester, can still proceed with a First Amendment claim that the officer threw the flashbang in retaliation for his protest.

The U.S. Court of Appeals for the Eighth Circuit reversed a lower court ruling that had allowed Fitil’s excessive-force claim against Omaha police officer Justyn Riley to proceed, denying the officer qualified immunity.

Qualified immunity generally shields government officials from lawsuits unless they violate a constitutional right that was clearly established at the time.

The excessive force claim hinged on whether throwing the flashbang amounted to a "seizure" under the Fourth Amendment.

"It can be a steep hill to climb," Eighth Circuit Judge David Stras wrote in the opinion. "For Fitil, it is."

Stras said the law was unsettled in May 2020 on whether throwing a flashbang to break up a crowd detains the people near it, and without clear precedent barring Riley’s actions, the officer was entitled to immunity.

The three-judge panel did not decide the First Amendment claim. It said it lacked jurisdiction to weigh whether Riley had qualified immunity from that claim because the district court never ruled on it — Riley had sought to dismiss it on other grounds.

The protest

After Minneapolis police killed George Floyd on May 25, 2020, protesters around the U.S. gathered to denounce police brutality. In Omaha, demonstrators gathered daily.

On May 29, 2020, Fitil joined a protest at 72nd and Dodge Streets carrying a sign condemning the deaths of Floyd and Zachary Bear Heels, a Native American man who died in Omaha police custody in 2017.

Dozens of officers responded to help with crowd control, including Riley, a SWAT team member whose gear included a flashbang and body-worn camera, which captured most of the incident, the appeals court said.

The protest started peacefully but turned violent when Riley and another officer walked toward the crowd to pull back a colleague who had gotten too close to the protesters, the court said. Water bottles came flying at them, and officers fired back pepper balls.

“Pepper balls led to more water bottles, which then drew more pepper balls,” the court said. “At least until a flashbang dispersed most of the crowd.”

Fitil stepped forward to yell at the officers and shake his fist, the court wrote. He started to retreat as officers fired more pepper balls, but the remaining protesters started throwing rocks. When two rocks landed near Riley, “he looked at Fitil and threw a flashbang that went about thirty-five to forty-five feet through the air before detonating near (Fitil’s) head.”

“But the flashbang blast had caused chemical burns, ruptured eardrums, a concussion, and even unconsciousness as he was running away,” the court wrote. “The eardrum injuries were so bad, in fact, that he continues to suffer hearing loss, tinnitus, and balance problems.”

The two sides tell different stories about how it happened. Fitil says Riley threw the device directly at him as he stood alone at a light pole away from the crowd, holding his sign. Riley says he aimed at the ground to disperse the crowd and that the flashbang “took a strange bounce” six feet in the air before exploding near Fitil’s head, according to the district court’s account.

An Omaha Police Department spokesperson said the department does not comment on cases related to pending litigation.

The lawsuit

Fitil sued Riley, the City of Omaha and Omaha Police Chief Todd Schmaderer in the U.S. District Court for the District of Nebraska in 2022 under a federal civil rights law.

He argued that the city, chief and Riley interfered with his First Amendment right to peaceably speak and assemble, violated his Fourth Amendment protection against unreasonable seizures and joined in a civil conspiracy to deter the protests.

All three defendants asked the district court for summary judgement.

In April 2025, Senior U.S. District Judge Joseph Bataillon let the First and Fourth Amendment claims against Riley proceed, finding that the facts the two sides disputed were significant enough to let a jury decide.

On the First Amendment claim, Riley argued he had not acted with retaliatory intent and that his conduct would not chill an ordinary person’s speech.

Bataillon wrote that the Eighth Circuit has held that pepper spraying someone in the face would chill an ordinary person’s speech.

“It follows that having a flashbang grenade explode in one’s face could chill a person of ordinary firmness as well,” Bataillon wrote.

He also said a jury, not one person, should determine if statements Riley made, like discussing protesters having sex with officers in response to chants of “f--- the police” and saying he planned to “have a bang in (his) hand” to respond to the protesters, indicated the flashbang was retaliatory.

Riley argued there was no seizure or excessive force and, thus, that he was entitled to qualified immunity on the Fourth Amendment claim.

“Although Riley claims he was not aiming at Fitil, the flashbang nevertheless struck Fitil, creating at least a dispute of fact as to whether Fitil was seized,” Bataillon wrote in the court’s memorandum and order. “The objective determination of whether Riley's use of the flashbang was reasonable is a question of material fact that should be left to the jury. A reasonable jury could conclude that Riley deployed (the) flashbang either to effectuate a seizure or to disperse the crowd.”

On qualified immunity, Bataillon wrote: “The law was clearly established at the time of the protest that use of nonlethal force can be unreasonable if the suspect does not pose a threat to officer safety or is otherwise resisting arrest.”

Because whether Fitil posed a threat was disputed, the judge denied Riley immunity — the decision the Eighth Circuit reversed Monday.

Bataillon dismissed the rest of the case. He found no evidence in Fitil’s claim that Schmaderer was personally involved in the incident or set any policy that encouraged it and dismissed claims against the chief.

He dismissed claims against the city as well, finding that Riley had been amply trained, there was no persistent pattern of excessive force at the department, and that OPD’s written policy directs officers to avoid the head when deploying less lethal weapons “unless deadly force is justified.”

Bataillon also threw out the conspiracy claim against all defendants, finding no evidence in Fitil’s complaint of an organized plan to harm protesters.

That leaves the First Amendment retaliation claim against Riley as the only count left standing in Fitil’s case.

72nd and Dodge shut down as tear gas, protesters fill streets; Omaha police make multiple arrests