Submitted: April 19, 2019
from United States District Court for the District of
Nebraska - Lincoln
SMITH, Chief Judge, BEAM, LOKEN, COLLOTON, GRUENDER, BENTON,
SHEPHERD, KELLY, ERICKSON, GRASZ, STRAS, and KOBES, Circuit
Judges, En Banc.
Colloton, Circuit Judge.
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.
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. At one point, Caslin came up
behind Kelsay like he was going to throw her in the pool, and
she objected. Although Kelsay later explained that she and
Caslin were "just playing around," some onlookers
thought Caslin was assaulting her, and a pool employee
contacted the police.
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
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.
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 says that she 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.
Chief 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.
meantime, Kelsay's older daughter was near the pool exit
doors yelling at a female 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. R. Doc. 53-8, at 54, lines 10-12.
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 and
the woman. The patron testified that she did not feel
threatened at that particular moment, but later realized that
Kelsay was "coming towards me to hurt me or yell at me
or whatever she was planning on doing."
Kelsay walked a few feet away from Ernst on the grass, the
deputy placed Kelsay in a bear hug, threw 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.
drove her to the Gage County jail, but a corrections officer
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 convicted of two
misdemeanor offenses after pleading no contest to attempted
obstruction of government operations and disturbing the
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.
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 ordinarily 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 (1995). Unless the district
court's assumed facts are blatantly contradicted by
incontrovertible evidence of a sort that is not present here,
we cannot entertain a contention by Ernst disputing the
district court's determination about which facts Kelsay
could prove at trial-for example, that Kelsay was not in a
position to threaten witnesses or that she posed no danger to
anyone. See Wallace v. City of Alexander, 843 F.3d
763, 766-67 (8th Cir. 2016). But Ernst ultimately raises the
purely 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).
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 (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 (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 (2011) (quoting Wilson
v. Layne, 526 U.S. 603, 617 (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
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, 136 S.Ct. 305,
308 (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). "Use of excessive force is an area of
the law in which the result depends very much on the facts of
each case, and thus police officers are entitled to qualified
immunity unless existing precedent squarely governs the
specific facts at issue." Kisela v. Hughes, 138
S.Ct. 1148, 1153 (2018) (per curiam) (internal quotation
case, Kelsay alleged that Ernst's takedown maneuver
violated her right under the Fourth Amendment to be free from
the use of unreasonable 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, 366-67 (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 ...