Kelsay v. Ernst: in a Time of National Public Outrage Over a Lack of Police Accountability, the United States Court of Appeals for the Eighth Circuit's Botched Qualified Immunity Analysis Highlights Serious Problems With the Doctrine as a Whole

• Publication year: 2022

54 Creighton L. Rev. 605. KELSAY V. ERNST: IN A TIME OF NATIONAL PUBLIC OUTRAGE OVER A LACK OF POLICE ACCOUNTABILITY, THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT'S BOTCHED QUALIFIED IMMUNITY ANALYSIS HIGHLIGHTS SERIOUS PROBLEMS WITH THE DOCTRINE AS A WHOLE

KELSAY V. ERNST: IN A TIME OF NATIONAL PUBLIC OUTRAGE OVER A LACK OF POLICE ACCOUNTABILITY, THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT'S BOTCHED QUALIFIED IMMUNITY ANALYSIS HIGHLIGHTS SERIOUS PROBLEMS WITH THE DOCTRINE AS A WHOLE

- JUSTICE TOM C. CLARK (1961) ^[1]

"Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."

I. INTRODUCTION

Across the United States during the summer of 2020, millions of Americans protested in the streets to demand law enforcement accountability for unconstitutional conduct under the color of law. ^[2] In August of 2019, the United States Court of Appeals for the Eighth Circuit granted qualified immunity to a law enforcement officer who broke the collarbone of a non-threatening, suspected misdemeanant who was not fleeing or resisting arrest. ^[3] That Eighth Circuit decision, along with twelve other federal appellate court cases involving qualified immunity, were recently denied certiorari review by the United States Supreme Court. ^[4] Moreover, while proposed legislation to end qualified immunity was recently considered by the United States Congress, Senate Republicans appear unwilling to support the bill. ^[5]

In Kelsay v. Ernst, ^[6] the United States District Court for the District of Nebraska denied qualified immunity to Gage County Sheriff Deputy Matt Ernst from an excessive force claim filed by Melanie Kelsay. ^[7] On appeal, the Eighth Circuit reversed the district court's denial, finding Deputy Ernst was entitled to qualified immunity. ^[8] The Eighth Circuit reasoned, at the time of the encounter between Deputy Ernst and Kelsay, Deputy Ernst's use of force against Kelsay was not clearly established as unreasonable under the circumstances. ^[9] Kelsay filed a petition for a writ of certiorari on November 26, 2019, which the United States Supreme Court denied on May 18, 2020. ^[10]

This Note will first recount the pertinent facts and holding in Kelsay. ^[11] This Note will then review the development of qualified immunity through United States Supreme Court precedent and review Eighth Circuit and other United States Court of Appeals precedent regarding qualified immunity from claims of excessive force. ^[12] Next, this Note will argue the Eighth Circuit's analysis in Kelsay violated the applicable standard of review by failing to grant Kelsay all reasonable inferences and by assuming facts blatantly contradicted by undisputed facts in the record. ^[13] This Note will then demonstrate that, by violating the standard of review, the Eighth Circuit failed to properly determine the contours of the constitutional right allegedly violated and consequently misapplied Eighth Circuit precedent in determining Deputy Ernst's conduct was not clearly established as unconstitutional. ^[14] This Note will then argue the Eighth Circuit's analysis contradicted assurances provided by the Court in Pearson v. Callahan ^[15] by failing to answer whether or not Deputy Ernst's conduct was unconstitutional. ^[16] Next, this Note will demonstrate the Court failed to resolve a circuit split by denying Kelsay's petition for a writ of certiorari. ^[17] Finally, this Note will conclude the Eighth Circuit erred in determining Deputy Ernst was entitled to qualified immunity and will provide suggestions to the Court for potential reform of the qualified immunity doctrine. ^[18]

II. FACTS AND HOLDING

On May 29, 2014, a public pool employee called the police under the belief that Patrick Caslin was abusing Melanie Kelsay when the two were playing around at the public pool with Kelsay's three children in Wymore, Nebraska. ^[19] As Kelsay and Caslin exited the pool with Kelsay's children, Wymore Police Chief Russell Kirkpatrick and Officer Matthew Bornmeier arrested Caslin for domestic assault and placed Caslin in a patrol vehicle. ^[20] When Gage County Sheriff Deputy Matt Ernst and Sergeant Jay Welch arrived, Kelsay was standing approximately five yards away from the patrol vehicle and seven-to-ten yards away from the pool exit. ^[21] Kelsay was about five feet tall and weighed 130 pounds. ^[22]

Upon informing Deputy Ernst and Sergeant Welch that Kelsay attempted to obstruct Caslin's arrest, Chief Kirkpatrick decided Kelsay should be placed under arrest. ^[23] Meanwhile, one of Kelsay's daughters was yelling with another person at the pool exit. ^[24] When Kelsay walked toward her daughter, Deputy Ernst ran to Kelsay, took Kelsay by the arm, and said "get back here." ^[25] In response, Kelsay stopped, turned to face Deputy Ernst, and explained to him that she wanted to know what was happening between the other person and her daughter. ^[26] Deputy Ernst then let go of Kelsay's arm and said nothing further to Kelsay. ^[27] Kelsay turned away from Deputy Ernst and proceeded to walk a few feet toward her daughter and the other person. ^[28] At that time, Deputy Ernst ran up to Kelsay from behind, wrapped her in his arms, picked her up off the ground, and threw her to the ground, knocking Kelsay unconscious and breaking her collarbone. ^[29] Deputy Ernst then handcuffed Kelsay and, after Kelsay regained consciousness, drove Kelsay to jail. ^[30]

Kelsay pled no contest to two misdemeanor offenses. ^[31] Pursuant to 42 U.S.C. § 1983 (" § 1983"), Kelsay sued Deputy Ernst in his individual capacity, alleging Deputy Ernst's takedown maneuver infringed upon Kelsay's Fourth Amendment right to be free from unreasonable force. ^[32] The United States District Court for the District of Nebraska denied Deputy Ernst's motion for summary judgment, ruling that Deputy Ernst was not entitled to qualified immunity. ^[33] The district court reasoned that a factfinder could determine Deputy Ernst used unreasonable force on Kelsay, violating her clearly established Fourth Amendment rights. ^[34] Ernst appealed the denial to the United States Court of Appeals for the Eighth Circuit, claiming entitlement to qualified immunity because he did not violate Kelsay's clearly established rights. ^[35]

In Kelsay v. Ernst, ^[36] the Eighth Circuit determined it had jurisdiction to hear Ernst's appeal and resolve the legal question of whether Ernst's actions violated Kelsay's clearly established Fourth Amendment rights. ^[37] The court began its analysis by outlining the judicial standard for determining whether a right violated by a law enforcement officer in a § 1983 claim was clearly established in case law at the time of the alleged violation. ^[38] The court stated that a plaintiff alleging excessive force must point to either controlling precedent or a significant consensus of persuasive case law, which squarely governs the facts under consideration, to prove the defendant-officer should not be granted qualified immunity. ^[39]

Applying the above judicial standard, the court determined Eighth Circuit precedent did not clearly establish that, at the time of the encounter between Deputy Ernst and Kelsay, Deputy Ernst's use of force against Kelsay was unreasonable under the circumstances. ^[40] The Eighth Circuit reasoned that none of the cases the district court relied upon governed a situation in which a suspect ignored the command of an officer then walked in the opposite direction. ^[41] The Eighth Circuit noted that case law concerning suspects who were passively resisting or compliant in response to an officer's commands would not govern a situation like Kelsay's. ^[42]

The Eighth Circuit explained that, considering what a reasonable officer might expect Kelsay to comprehend from the command given, Deputy Ernst's conclusion that Kelsay was noncompliant was objectively reasonable. ^[43] The Eighth Circuit noted that whether Kelsay complied with Deputy Ernst's command as a factual matter was irrelevant, and that the reasonableness of an officer's conclusion under the circumstances was a question of law to be determined by the court, as opposed to a jury. ^[44]

The Eighth Circuit then noted that its most analogous precedent case, Ehlers v. City of Rapid City, ^[45] supported granting Deputy Ernst qualified immunity. ^[46] The Eighth Circuit stated that, although there could be a constitutionally significant difference between a nonviolent misdemeanant ignoring one command versus ignoring two commands, such a distinction was not clearly established at the time of Kelsay's arrest. ^[47] Thus, the Eighth Circuit decided that, because Deputy Ernst's takedown was constitutionally debatable under governing precedent at the time, granting Deputy Ernst qualified immunity was warranted. ^[48] The Eighth Circuit then reversed the district court's order denying Deputy Ernst qualified immunity. ^[49]

Eighth Circuit Chief Judge Lavenski Smith, joined by Judge Jane Kelly, Judge Ralph Erickson, and Judge Steven Grasz, filed an extensive dissenting opinion. ^[50] At the outset, Chief Judge Smith stated that, when Kelsay was arrested, Eighth Circuit precedent was sufficiently clear to put officers on notice that using force against a suspected misdemeanant who was non-threatening, not resisting arrest, not fleeing, and not ignoring commands would violate...