I. Introduction
After an apparent
misunderstanding at a local pool, Melanie Kelsay found herself arrested and
seriously injured.[1] She claimed a police officer used excessive
force when arresting her, and she sued the officer for violating her rights
under the Fourth Amendment.[2]
The officer responsible for Kelsay’s
injuries moved for summary judgment, asserting qualified immunity.[3] The U.S. District Court for the District of
Nebraska held the officer was not entitled to qualified immunity.[4]
On appeal, however, the U.S. Court of
Appeals for the Eighth Circuit reversed, finding the officer did not violate
Kelsay’s clearly established rights under the Fourth Amendment.[5]
II. Facts and Holding
On
May 29, 2014, Melanie Kelsay, her three children, and a male friend named
Patrick Caslin went swimming in a public pool in Wymore, Nebraska.[6] Caslin and Kelsay were “horseplay[ing],”
according to Kelsay, but some pool patrons thought Caslin was assaulting Kelsay
and contacted the police.[7] Kelsay, her children, and Patrick encountered
the police as they were leaving the pool complex.[8] The local police chief, Russell Kirkpatrick,
told Caslin he was under arrest and started walking him to a patrol car.[9] According to police, Kelsay became angered
that Caslin was being arrested and attempted to explain that Caslin did not
assault her.[10] According to Chief Kirkpatrick, Caslin
himself became enraged and resisted being put in the car.[11] Also according to Chief Kirkpatrick, Kelsay
stood in front of the patrol car door to prevent Caslin from being put in the
patrol car.[12] Kelsay denied this fact and asserted she
approached the car only after Caslin had been placed inside it.[13]
After
Caslin was in the car, Chief Kirkpatrick began interviewing witnesses, at which
time Kelsay approached Caslin in the patrol car.[14] Officer Matthew Bornmeier, who had arrived
alongside Chief Kirkpatrick, told her to back away, and she complied.[15] Two officers from the Sheriff’s Office – Deputy Matt
Ernst and Sergeant Jay Welch
– then arrived on the scene.[16] Chief Kirkpatrick told the officers that
Kelsay had interfered with Caslin’s arrest, and that she should be arrested.[17] Kelsay was standing next to her youngest
daughter when Ernst and Welch arrived.[18] Kelsay’s eldest daughter was nearer to the
exit of the pool, and was apparently yelling at the patron whom she believed
had contacted the police.[19] Kelsay started to walk toward her eldest
daughter, but Ernst grabbed her arm and told her to “get back here.”[20] Kelsay turned around to face Ernst whereupon
Ernst let go of her arm.[21] Kelsay then told Ernst that she wanted to
know what the patron was saying to her eldest daughter and started to walk away
from Ernst again.[22] When Kelsay – who stood at five feet tall and
weighed approximately 130 pounds – had taken a few steps, Ernst “placed Kelsay
in a bear hug, took her to the ground, and placed her in handcuffs.”[23] Kelsay briefly lost consciousness after she
hit the ground.[24] The force of the takedown broke her
collarbone.[25]
Despite
screaming about the pain in her shoulder, Ernst drove Kelsay to the county
jail.[26] Corrections officers at the jail, however,
recommended that Kelsay see a doctor.[27] Chief Kirkpatrick then took Kelsay to a
hospital where her fractured collarbone was discovered and diagnosed.[28]
After
pleading no contest to two misdemeanor charges, Kelsay 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.”[29]
The district court granted summary judgment to all of the named defendants for
all claims but one involving Officer Ernst.[30] The court ruled that Officer Ernst was not
entitled to qualified immunity on Kelsay’s claim that he used excessive force
because, viewed in the light most favorable to Kelsay, “a factfinder [could]
conclude that Ernst’s use of force was unreasonable and violated Kelsay’s
clearly established rights under the Fourth Amendment.”[31] Ernst appealed, questioning whether the
evidence was sufficient, even viewed in a light most favorable to Kelsay, to
show that he violated her clearly established Fourth Amendment rights.[32]
III. Legal Background
Kelsay
brought suit under 42 U.S.C. § 1983,
a federal statute that provides a mechanism by which individuals can initiate
civil suits against state officials, who, acting “under color of law,” violate
an individual’s constitutional and/or statutory rights.[33] When sued, state officials can assert various
forms of immunity. “Qualified immunity”
– like all immunities – is an immunity to suit, not just a shield from
liability.[34] Its purpose is to “balance[] two important
interests—the need to hold public officials accountable when they exercise
power irresponsibly and the need to shield officials from harassment,
distraction, and liability when they perform their duties reasonably.”[35] The modern doctrine of qualified immunity was
established by the Supreme Court of the United States in Harlow v. Fitzgerald, in which the Court held that government
officials are shielded from lawsuits brought under § 1983 if the challenged
“conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.”[36] The Harlow
test therefore requires two inquiries: (1) was there a violation of a statutory
or constitutional right and (2) was that right well established, such that a
reasonable officer would have or should have known that his conduct was
unlawful?[37]
To combat an
assertion of qualified immunity, a plaintiff must cite controlling authority or
a consensus of cases that “place[] the statutory or constitutional question
beyond debate” at the time of the challenged conduct.[38] Thus, though there need not be prior case law
exactly on point, the law must have given officers “fair warning” that their
conduct was unlawful.[39] Moreover, the law must have given officers
fair warning of the particular
conduct in which they engaged; examination of the law generally will not
suffice to demonstrate that a right was “clearly established.”[40] That is especially so 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.”[41]
IV. Instant Decision
Officer Ernst appealed the district court’s ruling
that he was not entitled to qualified immunity on Kelsay’s claim of excessive
force related to the takedown that knocked her unconscious and broke her
collarbone.[42] The district court reasoned that a reasonable
officer would have known that the maneuver was excessive given that Kelsay was
a “nonviolent misdemeanant [who] pose[d] no threat to officers and [was] not
actively resisting arrest or attempting to flee.”[43] The Eight Circuit disagreed with the district
court’s determination.[44] According
to the Eighth Circuit, it was not clearly established in 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.”[45] The Eighth Circuit cited a similar 2017 case,
Ehlers v. City of Rapid City, in
which it held that an officer did not violate a clearly established Fourth
Amendment right when “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.”[46] There, the court reasoned that a reasonable
officer could interpret the walking away as “at least appear[ing] to be
resisting” behavior, and therefore the officer could use force reasonably
necessary to effectuate the arrest.[47] Finding no meaningful – and more importantly,
no clearly established – constitutional distinction between one command to stop
(as in Kelsay) and two (as in Ehlers), the Eighth Circuit in Kelsay held that “[t]he
constitutionality of Ernst’s takedown was not beyond debate, and he is thus
entitled to qualified immunity.”[48]
V. Comment
The
Eighth Circuit held that since the use of a takedown maneuver on a nonviolent
misdemeanant was not clearly unlawful in 2017, it could not have been clearly
unlawful in 2014 when Ernst took down Kelsay.[49] Though Kelsay attempted to show that Officer
Ernst’s conduct was unreasonable, the court stated that “[n]one of the
decisions cited by the district court or Kelsay involved a suspect who ignored
an officer’s command and walked away, so they could not clearly establish the
unreasonableness of using force under the particular circumstances here.”[50]
Though
it might not have been clearly established in 2014 as a matter of law that
Officer Ernst’s conduct violated Kelsey’s Fourth Amendment rights, it seems
quite obvious that Officer Ernst’s conduct and use of force was in excess of
that required to effectuate an arrest on Kelsay. Even Judge C. Arlen Beam – who concurred in
the judgment that Officer Ernst was entitled to qualified immunity – “[spoke]
parenthetically” to write that, “the slamming of this lady to the ground by the
deputy with force sufficient to fracture her shoulder was uncalled for given
the nature of the encounter underway.”[51]
If
one accepts Kelsay’s version of the facts as true, it seems clear that Officer
Ernst acted unreasonably when taking down Kelsay with force sufficient to knock
her out and break her collarbone. The
Supreme Court of the United States since 1989 has held that determining whether
the use of force in a particular situation was excessive “requires careful
attention to the facts and circumstances of each particular case, including the
severity of the crime at issue, whether the suspect poses an immediate threat
to the safety of the officers or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight.”[52] Attention to the facts and circumstances of
this case demonstrate, quite clearly, that even if the 130-pound Kelsay
“appeared to be resisting” by walking a few steps away from Officer Ernst, the
officer did not need to use a bear hug and slam Kelsay to the ground in order
to effectuate her arrest.
Nonetheless,
Officer Ernst’s conduct, according to the Eighth Circuit, did not violate a clearly
established right, because “it was not obvious or beyond debate in 2014 that an
officer was forbidden to execute a takedown when a nonviolent misdemeanant
ignored one command.”[53] In the Eighth Circuit’s view, the fact that
Kelsay ignored a command distinguished her case from those cited by both Kelsay
and the district court, wherein the use of force against non-resisting,
non-threatening misdemeanants was held to violate a clearly established
right. To the dismay of Kelsay and
others similarly situated, Kelsay
illustrates that conduct can be “uncalled for” – or, if we are to speak more
honestly, plainly unreasonable – without violating a “clearly established
right.”
[2]
Id.
[3]
Id.
[4]
Id.
[5]
Id.
[6]
Id.
[7]
Id.
[8]
Id.
[9]
Id.
[10]
Id.
[11]
Id.
[12]
Id.
[13]
Id.
[14]
Id.
[15]
Id.
[16]
Id.
[17]
Id.
[18]
Id.
[19]
Id.
[20]
Id.
[21]
Id.
[22]
Id.
[23]
Id. at *1–2.
[24]
Id. at *2.
[25]
Id.
[26]
Id.
[27]
Id.
[28]
Id.
[29]
Id.
[30]
Id.
[31]
Id.
[32]
Id.
[33]
42 U.S.C. § 1983.
[34]
Pearson v. Callahan, 555 U.S. 223, 231 (quoting Mitchell v. Forsyth, 472 U.S. 511,
526, (1985)).
[35]
Id.
[36]
457 U.S. 800, 818 (1982).
[37]
Kelsay, 2018 WL 4622711, at *3; Anderson v. Creighton, 483 U.S.
635, 640 (1987) (“The contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing violates that
right.”).
[38]
Ashcroft v. al-Kidd, 563 U.S. 731, 741–42 (2011) (quoting Wilson v. Layne, 526
U.S. 603, 617 (1999)).
[39]
Hope v. Pelzer, 536 U.S. 730, 741 (2002).
[40]
Mullinex v. Luna, 136 S. Ct. 305, 308 (2015).
[41]
Id. (quoting Saucier v. Katz, 533
U.S. 194, 205 (2001)).
[42]
Kelsay, 2018 WL 4622711, at *1–2.
[43]
Id. at *3.
[44]
Id.
[45]
Id.
[46]
Id. (citing Ehlers v. City of Rapid
City, 846 F.3d 1002, 1011 (8th Cir. 2017)).
[47]
Id. (citing Ehlers, 846 F.3d at 1011).
[48]
Id.
[49]
Id.
[50]
Id.
[51]
Id. at *4.
[52]
Graham v. Connor, 490 U.S. 386, 396 (1989).
[53]
Kelsay, 2018 WL 4622711, at *3.
