Kelsay v. Ernst

• Decision Date: 27 September 2018
• Docket Number: No. 17-2181,17-2181
• Citation: 905 F.3d 1081
• Parties: Melanie KELSAY, Plaintiff - Appellee, v. Matt ERNST, individually and in his official capacity, Defendant - Appellant, Jay Welch, individually and in his official capacity; City of Wymore, Nebraska ; Russell Kirkpatrick, individually and in his official capacity; Matthew Bornmeier, individually and in his official capacity, Defendants
• Court: U.S. Court of Appeals — Eighth Circuit

905 F.3d 1081

Melanie KELSAY, Plaintiff - Appellee,

v. Matt ERNST, individually and in his official capacity, Defendant - Appellant,Jay Welch, individually and in his official capacity; City of Wymore, Nebraska ; Russell Kirkpatrick, individually and in his official capacity; Matthew Bornmeier, individually and in his official capacity, Defendants,

No. 17-2181

United States Court of Appeals, Eighth Circuit.

Submitted: May 16, 2018

Filed: September 27, 2018

Rehearing En Banc Granted, Opinion Vacated November 30, 2018

Abby Osborn, Joy Shiffermiller, SHIFFERMILLER LAW OFFICE P.C. L.L.O., Lincoln, NE, for Plaintiff - Appellee.

Brandy Rae Johnson, GOVERNMENTAL LAW, LLC, Lincoln, NE, Vincent Valentino, VALENTINO LAW OFFICE, Lincoln, NE, for Defendant - Appellant.

Before SMITH, Chief Judge, BEAM and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.

Melanie Kelsay sued sheriff’s deputy Matt Ernst under 42 U.S.C. § 1983, alleging that Ernst used excessive force while arresting Kelsay. The district court denied Ernst’s motion for summary judgment, and Ernst appeals on the ground that he is entitled to qualified immunity. We conclude that Ernst did not violate a clearly established right of Kelsay under the Fourth Amendment, so we reverse the order.

The question presented is whether Ernst is entitled to summary judgment, so while there are some disputes about the facts, we ultimately consider the evidence in the light most favorable to Kelsay. On May 29, 2014, Kelsay, her three children, and her friend Patrick Caslin went swimming at a public pool in Wymore, Nebraska. Caslin engaged Kelsay in what she described as "horseplay," but some onlookers thought he was assaulting her, and a pool employee contacted the police.

As Kelsay and her party left the pool complex, they encountered Wymore Police Chief Russell Kirkpatrick and Officer Matthew Bornmeier. Kirkpatrick informed Caslin that he was under arrest for domestic assault and escorted him to a patrol car. Kelsay was "mad" that Caslin was arrested. She tried to explain to the officers that Caslin had not assaulted her, but she thought that the officers could not hear her.

According to Kirkpatrick, Caslin became enraged once they reached the patrol car and resisted going inside. Kirkpatrick says that after he secured Caslin in handcuffs, Kelsay approached the patrol car and stood in front of the door. Kirkpatrick claims that he told her to move three times before Bornmeier escorted her away so that Kirkpatrick could place Caslin into the patrol car.

Kelsay denies approaching the patrol car until after Caslin was inside the vehicle. At that point, while Kirkpatrick interviewed witnesses, she walked over to the car to talk to Caslin. Bornmeier told her to back away from the vehicle, and Kelsay complied. Two more officers—Deputy Matt Ernst and Sergeant Jay Welch from the Gage County Sheriff’s Office—then arrived on the scene. When they appeared, Kelsay was standing about fifteen feet from the patrol car where Caslin was detained, and twenty to thirty feet from the pool’s exit doors. Kelsay’s younger daughter was standing next to her; her older daughter and son were standing by the exit doors. Kelsay stood approximately five feet tall and weighed about 130 pounds.

Kirkpatrick told Ernst and Welch that Kelsay had interfered with Caslin’s arrest. According to Welch, Kirkpatrick explained that Kelsay tried to prevent Caslin’s arrest by "trying to pull the officers off and getting in the way of the patrol vehicle door." Kirkpatrick thus decided that Kelsay should be arrested.

In the meantime, Kelsay’s older daughter was near the pool exit doors yelling at a patron who the daughter assumed had contacted the police. Kelsay started to walk toward her daughter, but Ernst ran up behind Kelsay, grabbed her arm, and told her to "get back here." Kelsay stopped walking and turned around to face Ernst, at which point Ernst let go of Kelsay’s arm. Kelsay told Ernst that "some bitch is talking shit to my kid and I want to know what she’s saying," and she continued walking away from Ernst and toward her daughter.

After Kelsay moved a few feet away from Ernst, the deputy placed Kelsay in a bear hug, took her to the ground, and placed her in handcuffs. Kelsay momentarily lost consciousness after she hit the ground. When she regained her senses, she was already handcuffed, and she began screaming about pain in her shoulder.

Ernst drove her to the Gage County jail, but corrections officers recommended that Kelsay be examined by a doctor. Kirkpatrick took Kelsay to a hospital, where she was diagnosed with a fractured collarbone. Kelsay ultimately was found guilty of two misdemeanor offenses after pleading no contest to attempted obstruction of government operations and disturbing the peace.

Kelsay later sued the City of Wymore and Kirkpatrick, Bornmeier, Ernst, and Welch in their individual and official capacities, alleging wrongful arrest, excessive force, and deliberate indifference to medical needs. The district court granted summary judgment in favor of all defendants on all claims but one. The court ruled that Deputy Ernst was not entitled to qualified immunity on a claim that he used excessive force to arrest Kelsay when he took her to the ground and caused the broken collarbone. The court reasoned that the evidence, viewed in the light most favorable to Kelsay, could lead a factfinder to conclude that Ernst’s use of force was unreasonable and violated Kelsay’s clearly established rights under the Fourth Amendment.

As an initial matter, Kelsay challenges our jurisdiction over this appeal. We have jurisdiction over an interlocutory appeal of an order denying qualified immunity if the appeal seeks review of a purely legal issue, but we lack jurisdiction to decide "which facts a party may, or may not, be able to prove at trial." Johnson v. Jones , 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). In this case, Ernst does not challenge any determination of the district court about which facts Kelsay could prove at trial. He raises only the legal question whether the evidence viewed in the light most favorable to Kelsay shows that he violated her clearly established rights under the Fourth Amendment. We have jurisdiction to decide that question. See Shannon v. Koehler , 616 F.3d 855, 861 (8th Cir. 2010).

Qualified immunity shields a government official from suit under § 1983 if his "conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). For a right to be clearly established, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton , 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). A plaintiff must identify either "controlling authority" or "a robust ‘consensus of cases of persuasive authority’ " that "placed the statutory or constitutional question beyond debate" at the time of the alleged violation. Ashcroft v. al-Kidd , 563 U.S. 731, 741-42, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (quoting Wilson v. Layne , 526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) ). In other words, the law at the time of the events in question must have given the officers "fair warning" that their conduct was unconstitutional. Hope v. Pelzer , 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002).

The state of the law should not be examined at a high level of generality. "The dispositive question is whether the violative nature of particular conduct is clearly established." Mullenix v. Luna , ––– U.S. ––––, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (per curiam) (internal quotation marks omitted). "Such specificity is especially important in the Fourth Amendment context, where ... it is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts." Id. (internal quotation marks omitted).

In this case, Kelsay alleged that the takedown maneuver violated her right under the Fourth Amendment to be free from excessive force. The district court rejected Ernst’s defense of qualified immunity. The court reasoned that where a nonviolent misdemeanant poses no threat to officers and is not actively resisting arrest or attempting to flee, an officer may not employ force just because the suspect is interfering with police or behaving disrespectfully. See Shekleton v. Eichenberger , 677 F.3d 361, 366-367 (8th Cir. 2012) ; Montoya v. City of Flandreau , 669 F.3d 867, 871-72 (8th Cir. 2012) ; Johnson v. Carroll , 658 F.3d 819, 827 (8th Cir. 2011) ; Shannon , 616 F.3d at 864-65 ; Brown v. City of Golden Valley , 574 F.3d 491, 499 (8th Cir. 2009) ; Kukla v. Hulm , 310 F.3d 1046, 1050 (8th Cir. 2002). The court ruled that the excessiveness of Ernst’s use of force would have been apparent to a reasonable officer, because while Kelsay "was not precisely ‘compliant’—that is, she had been told to stop but kept walking instead—she was not using force or actively resisting arrest, and posed no danger to anyone."

We respectfully disagree with this conclusion. It was not clearly established in May 2014 that a deputy was forbidden to use a takedown maneuver to arrest a suspect who ignored the deputy’s instruction to "get back here" and continued to walk away from the officer. We held in Ehlers v. City of Rapid City , 846 F.3d 1002 (8th Cir. 2017), that an officer did not violate the Fourth Amendment by executing a takedown of a nonviolent misdemeanant when the officer twice ordered the suspect to place his hands behind his back, but the suspect continued walking away. Id. at 1011. The court concluded that a reasonable officer would interpret the subject’s behavior as "noncompliant," and reasoned that he "at least appeared to be resisting" when he continued to walk away, so...