Kelsay v. Ernst, 092718 FED8, 17-2181

Docket Nº:17-2181
Opinion Judge:COLLOTON, CIRCUIT JUDGE.
Party Name: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,
Judge Panel:Before SMITH, Chief Judge, BEAM and COLLOTON, Circuit Judges. BEAM, Circuit Judge, concurring. SMITH, Chief Judge, dissenting.
Case Date:September 27, 2018
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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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

September 27, 2018

Submitted: May 16, 2018

Appeal from United States District Court for the District of Nebraska - Lincoln

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...

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