Submitted: May 16, 2018
from United States District Court for the District of
Nebraska - Lincoln
SMITH, Chief Judge, BEAM and COLLOTON, Circuit Judges.
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. Caslin engaged Kelsay in
what she described as "horseplay," but some
onlookers thought he 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 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.
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 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.
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
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
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 ...