United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-2181
                        ___________________________

                                   Melanie Kelsay,

                        lllllllllllllllllllllPlaintiff - Appellee,

                                           v.

                                      Matt Ernst,

                      lllllllllllllllllllllDefendant - Appellant.
                                      ____________

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

                            Submitted: April 19, 2019
                             Filed: August 13, 2019
                                 ____________

Before SMITH, Chief Judge, BEAM, LOKEN, COLLOTON, GRUENDER,
BENTON, SHEPHERD, KELLY, ERICKSON, GRASZ, STRAS, and KOBES,
Circuit Judges, En Banc.
                           ____________

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. 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.

       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 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

                                         -2-
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.

       Police 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.

       In the 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.”

      After 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.

      Ernst 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

                                          -3-
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 peace.

       Kelsay 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.

        As an 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, 

, 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, 

, 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, 

, 861 (8th Cir. 2010).



                                         -4-
       Qualified 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, 

,
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, 

, 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, 

, 741-
42 (2011) (quoting Wilson v. Layne, 

, 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, 

, 741 (2002).

       The 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, 

, 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.” 

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,

, 1153 (2018) (per curiam) (internal quotation marks omitted).

       In this 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

                                          -5-
suspect is interfering with police or behaving disrespectfully. See Shekleton v.
Eichenberger, 

, 366-67 (8th Cir. 2012); Montoya v. City of Flandreau,

, 871-72 (8th Cir. 2012); Johnson v. Carroll, 

, 827 (8th Cir.
2011); 

; Brown v. City of Golden Valley, 

,
499 (8th Cir. 2009); Kukla v. Hulm, 

, 1050 (8th Cir. 2002). The court
ruled that the excessiveness of Ernst’s use of force would have been apparent to a
reasonable officer, because while Kelsay “was not precisely ‘compliant’—that is, she
had been told to stop but kept walking instead—she was not using force or actively
resisting arrest, and posed no danger to anyone.”

       We respectfully disagree with this conclusion. It was not clearly established
in May 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. None 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.

       None of Kelsay’s authorities “squarely governs the specific facts at issue.”

. Shekleton addressed an officer’s use of a taser against a
compliant, nonviolent, nonfleeing misdemeanant after the officer unsuccessfully
sought to handcuff the suspect and the two men accidentally fell to the 

. Shannon held that an officer acted unreasonably in a pub by
performing a takedown of a bar owner who was not reasonably suspected of
committing any crime, did not flee or actively resist arrest, and posed little or no
threat to the officer or 

& n.3. Brown involved a
nonviolent, nonfleeing passenger in a car who refused an officer’s commands to
discontinue a cell phone call with an emergency operator; the court held that shocking
her with a taser for failing to get off the phone was an unreasonable use of 

. And Montoya held that a police officer’s takedown of a suspect was

                                         -6-
unreasonable when the nonthreatening, nonresisting, nonfleeing misdemeanant
merely raised her hands above her head in frustration while standing ten to fifteen feet
away from the 

.

       Decisions concerning the use of force against suspects who were compliant or
engaged in passive resistance are insufficient to constitute clearly established law that
governs an officer’s use of force against a suspect who ignores a command and walks
away. The Supreme Court recently vacated the denial of qualified immunity for an
officer who executed a takedown of a man who posed no apparent danger but
disobeyed the officer’s command not to close an apartment door and then “tried to
brush past” the officer. City of Escondido v. Emmons, 

, 503-04 (2019)
(per curiam). On remand, the Ninth Circuit concluded that precedent involving force
employed in response to passive resistance was not sufficiently on point to constitute
clearly established law that governed the takedown at the apartment door. Emmons
v. City of Escondido, 

, 1175 (9th Cir. 2019) (per curiam). This court’s
precedent likewise did not clearly establish that Ernst was forbidden to perform a
takedown when Kelsay walked away.

       In this case, moreover, Ernst knew when he spoke to Kelsay that she was going
to be arrested for attempting to interfere with Caslin’s arrest. Kelsay then walked
toward another patron after stating that “some bitch is talking shit to my kid and I
want to know what she’s saying.” Even if a jury could find that Kelsay posed no
danger to anyone at the time of the seizure, a reasonable officer in Ernst’s position
could have believed that it was important to control the situation and to prevent a
confrontation between patrons that could escalate. This is another factor that was not
present in previous cases, and reasonableness depends on the totality of the
circumstances.

     Although the principal dissent suggests that there is a factual dispute about
whether Kelsay complied with Ernst’s command by momentarily stopping and

                                          -7-
turning around, the relevant question is not whether Kelsay complied as a factual
matter. The issue is whether a reasonable officer could have believed that Kelsay was
not compliant. Whether the officer’s conclusion was reasonable, or whether he was
“reasonably unreasonable” for purposes of qualified immunity, see 

, are questions of law, not fact. They are matters for resolution by the
court, not by a jury. And Ernst’s conclusion that Kelsay failed to comply was
objectively reasonable. A reasonable police officer could expect Kelsay to
understand his command to “get back here” as an order to stop and remain, not as a
directive merely to touch base before walking away again.

       Our closest decision on point supports qualified immunity for Ernst. In Ehlers
v. City of Rapid City, 

(8th Cir. 2017), we held that an officer did not
violate the Fourth Amendment by 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. 

The court concluded
that a reasonable officer would interpret the subject’s behavior as “noncompliant,”
and reasoned that he “at least appeared to be resisting” when he continued to walk
away, so the officer was “entitled to use the force necessary to effect the arrest.” 

version of the facts, Ernst told Kelsay only once to “get back
here” before she continued to walk away, but even if there might be a constitutionally
significant distinction between one command and two, no such rule was clearly
established when Ernst made his arrest. Where the district court correctly
acknowledged that Kelsay “had been told to stop but kept walking instead,” and this
court’s most analogous decision in Ehlers held that it was reasonable to perform a
takedown of a suspect who disobeyed two commands and walked away, we cannot
deem this “the rare obvious case” in which “the unlawfulness of the officer’s conduct
is sufficiently clear even though existing precedent does not address similar
circumstances.” District of Columbia v. Wesby, 

, 590 (2018) (internal



                                          -8-
quotation marks omitted). The constitutionality of Ernst’s takedown was not beyond
debate, and he is thus entitled to qualified immunity.

      For these reasons, the order of the district court denying qualified immunity is
reversed.1

SMITH, Chief Judge, with whom KELLY, ERICKSON, and GRASZ, Circuit Judges,
join, dissenting.

       I respectfully dissent. Our case law was sufficiently clear at the time Deputy
Ernst forcefully arrested Kelsay to have put a reasonable officer on notice that the use
of force against a non-threatening misdemeanant who was not fleeing, resisting arrest,
or ignoring other commands violates that individual’s right to be free from excessive
force.

       To satisfy the specificity requirement for law to be clearly established, the
Supreme Court “ha[s] stressed the need to ‘identify a case where an officer acting
under similar circumstances . . . was held to have violated the Fourth Amendment.’”

(ellipsis in original) (quoting White v. Pauly, 

,
552 (2017) (per curiam)). The Supreme Court has made clear that it does “not require
a case directly on point.” 

. “But a body of relevant case law
is usually necessary to clearly establish the answer . . . .” 

(ellipsis in original) (quoting 

). “[E]xisting precedent must
have placed the statutory or constitutional question beyond debate.” al-Kidd, 

        Kelsay also appears to contend that Ernst violated her Fourth Amendment
rights by failing to remove handcuffs despite her repeated complaints of shoulder
pain. The district court did not address this claim, and Ernst does not appeal any
ruling about it. Accordingly, we do not consider whether Kelsay properly presented
this claim in the district court or, if so, whether it would survive a motion for
summary judgment.

                                          -9-
at 741. Thus, “[t]o be clearly established, a legal principle must have a sufficiently
clear foundation in then-existing precedent.” 

. The legal
principle set forth in that precedent “must be settled law, which means it is dictated
by controlling authority2 or a robust consensus of cases of persuasive authority.” 

(cleaned up). “The precedent must be clear enough that every reasonable
official would interpret it to establish the particular rule the plaintiff seeks to apply.”

                       I. Existing Precedent on Excessive Force

       “[W]hether an officer has used excessive force ‘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.’” 

(quoting Graham v. Connor, 

, 396
(1989)). Our precedent has applied these factors to circumstances similar to Kelsay’s
and held that “it is clearly established that force is least justified against nonviolent
misdemeanants who do not flee or actively resist arrest and pose little or no threat to
the security of the officers or the public.” 

. In Brown, law
enforcement pulled over the plaintiff’s husband for allegedly driving under the
influence. 

After the husband was handcuffed, the plaintiff, who was
seated in the front passenger seat, became frightened and called 911 on her cell
phone. 

An officer told her to hang up. 

responded that she
was frightened and wanted to remain on the phone with 911. 

ordered
the plaintiff a second time to get off the phone, and the plaintiff again responded that
she was frightened. 

then entered the car and tased the plaintiff. 

Supreme Court has “[a]ssum[ed] for the sake of argument that a
controlling circuit precedent could constitute clearly established federal law.” Carroll
v. Carman, 

, 350 (2014) (per curiam).

                                           -10-
Ultimately, the husband was ticketed for speeding, while the plaintiff was charged
with obstruction of legal process and an open bottle violation. 

       We held that the responding officer’s use of force was not objectively
reasonable under the circumstances. 

First, the passenger was suspected of
committing a misdemeanor open bottle violation as opposed to “a severe or violent
crime.” 

passenger “posed at most a minimal safety threat to” the
officers. 

At no time did the passenger “threaten the officers, verbally or
physically.” 

passenger “was not actively resisting arrest or attempting
to flee.” 

passenger’s “principal offense . . . was to disobey the
commands to terminate her call to the 911 operator.” 

responding
officer] reasonably interpreted [the passenger’s] refusal as a realistic threat to his
personal safety or whether it constituted nothing more than an affront to his command
authority,” we explained, was “a matter for a jury to decide.” 

Shannon, an officer responded to a call for a disturbance between
two females at a bar involving an injured 

. At the scene, the
female who called 911 told the officer “that one of the females inside [the bar] had
been ‘touched or grabbed by the male who was in the bar.’” 

Once inside the establishment, the plaintiff walked toward the officer and, “using
profanity,” told the officer that he owned the bar and did not need the officer.

The plaintiff ordered the officer out of the bar. 

“eventually [came] within arm[’]s length of [the officer].” 

in original) (quotation omitted). While the officer alleged that the plaintiff
poked him in the chest two times, the plaintiff denied doing so. 

performed a takedown of the plaintiff, causing the plaintiff “to hit a bar stool and land
on the hardwood floor.” 

The officer had to use additional
force in handcuffing the plaintiff. 

alleged he was injured during the
arrest. 

“was convicted in state court of interfering with official acts,
a misdemeanor offense.” 

n.4.

                                          -11-
        In holding that the officer’s use of force was not objectively reasonable under
the circumstances based on the plaintiff’s version of events, we noted that the
plaintiff “was not suspected of committing a serious crime, that he did not attempt to
flee or actively resist arrest, and that he posed little or no threat to [the officer] or
others.” 

“It follow[ed], a fortiori, that using enough force to cause the
injuries that [the plaintiff] allege[d]—a partially collapsed lung, multiple fractured
ribs, a laceration to the head, and various contusions—was also unreasonable.” 

(citing Crumley v. City of St. Paul, 

, 1007 (8th Cir. 2003) (“In
addition to the circumstances surrounding the use of force, we may also consider the
result of the force.”)). We next held that the plaintiff’s constitutional right to be free
from excessive force in such circumstances was clearly established. 

“Long
before [the date of the incident], this court (among others) had announced that the use
of force against a suspect who was not threatening and not resisting may be
unlawful.” 

that “[a]lthough [the plaintiff] greeted [the officer] in
a disrespectful, even churlish manner, that alone did not make [the officer’s] use of
force acceptable under extant law.” 

(citing Bauer v. Norris, 

,
412 (8th Cir. 1983) (“‘[T]he use of any force by officers simply because a suspect is
argumentative, contentious, or vituperative’ is not to be condoned.” (alteration in
original) (quoting Agee v. Hickman, 

, 212 (8th Cir. 1974)))).

       Third, Montoya involved two officers responding to a domestic dispute
between the plaintiff and her ex-boyfriend at the ex-boyfriend’s 

. Upon their arrival to the residence, the officers witnessed the plaintiff and her
ex-boyfriend arguing outside. 

plaintiff, the ex-boyfriend, the
plaintiff’s mother, the plaintiff’s friend, and the officers stood in a circle. 

boyfriend stood between the two officers, while the plaintiff stood opposite of them,
approximately ten to fifteen feet away. 

and the ex-boyfriend were
having words. 

s stated that the plaintiff had taken a step forward and
raised her fist, but, according to the plaintiff’s account, she was merely using her
hands to express herself. 

the officers grabbed the plaintiff’s left arm, put

                                           -12-
it behind her back, and handcuffed her left wrist. 

officer then
attempted to get the plaintiff’s right arm behind her and told her to stop resisting. 

officer then performed a takedown of the plaintiff, causing her to fall to the
ground face first. 

fell on top of the plaintiff. 

fractured the plaintiff’s knee. 

The plaintiff was charged with simple assault
or, in the alternative, disorderly conduct, as well as resisting arrest. 

convicted only of disorderly conduct. 

that the officer’s takedown of the plaintiff was not objectively
reasonable under the circumstances. 

First, the plaintiff posed no threat to
the safety of the officers or others. 

standing ten to fifteen feet away from
[the ex-boyfriend] when she raised her hands above her head in frustration. She
assert[ed] she did not intend to hit [the ex-boyfriend], and [he] testified he did not feel
threatened by her actions.” 

plaintiff “was not actively resisting arrest,
and [she] was not attempting to flee.” 

plaintiff’s “actions amounted to
a violation of a law restricting disorderly conduct, a misdemeanor.” 

not dispositive, the severity of the injuries she sustained[—a broken
leg—was] a relevant factor in determining the reasonableness of the force used.” 

We held that the plaintiff’s right to be free from excessive force under such
circumstances was clearly established:

       Assuming once again [the plaintiff’s] story is true, the contours of the
       right at issue were sufficiently clear to inform a reasonable officer in
       [the officer’s] position it was unlawful for him to perform a ‘leg sweep’
       and throw to the ground a nonviolent, suspected misdemeanant who was
       not threatening anyone, was not actively resisting arrest, and was not
       attempting to flee.

                                           -13-
       Finally, in Shekleton, an officer approached the plaintiff outside of a bar after
allegedly witnessing the plaintiff arguing with the 

–64. The
officer believed that the plaintiff was intoxicated and asked the plaintiff to move
away from the street; the plaintiff complied. 

asked the plaintiff three
times why he had been arguing with the bartender. 

officer inquired for
the third time, the plaintiff became agitated, again told the officer he had not been
arguing with the bartender, and demanded an apology from the officer. 

an apology, the plaintiff stopped leaning against a wall, unfolded his
arms, and turned toward the officer. 

then twice instructed the plaintiff
to put his hands behind his back. 

replied that he was unable to do so,
and the officer confirmed knowing that the plaintiff was unable to do so (the plaintiff
had a condition preventing him from doing so which was well-known in the
community). 

The officer attempted to handcuff the plaintiff, but he lost
his grip on the plaintiff’s arm. 

The two men fell to the ground. 

officers then exited the bar and heard the officer tell the plaintiff to stop
resisting. 

to restrain the plaintiff’s arms failed, the officer yelled
“taser, taser, taser” and discharged the taser at the plaintiff. 

charge
into the plaintiff’s chest and rib cage caused him to fall face-first to the ground; he
suffered minor head injuries. 

was handcuffed and arrested for public
intoxication and interference with official acts. 

charges against the
plaintiff were subsequently dropped. 

facts in the light most favorable to [the plaintiff],” we concluded
that the plaintiff had “established that a violation of a constitutional right occurred.”

The plaintiff “was an unarmed suspected misdemeanant, who did not resist
arrest, did not threaten the officer, did not attempt to run from him, and did not
behave aggressively towards him.” 

showed that the plaintiff “complied
with the officer’s orders to step away from the street and did not behave aggressively
towards [the officer], nor did [the plaintiff] direct obscenities towards [the officer] or
yell at him.” 

was on notice that the plaintiff could not physically place

                                          -14-
his hands behind his back when the officer asked the plaintiff to do so. 

the officer and the plaintiff fell away from each other during the attempted
handcuffing, the plaintiff “did not resist and did not intentionally cause the two to
break apart.” 

these facts, we held that “a reasonable officer would not
have deployed his taser under the circumstances as presented by [the plaintiff].” 

Brown, we concluded that “the general law prohibiting excessive force in place
at the time of the incident was sufficient to inform an officer that use of his taser on
a nonfleeing, nonviolent suspected misdemeanant was unreasonable.” 

(citing 

–500).

                II. Application of Existing Precedent to Present Case

       Brown, Shannon, Montoya, and Shekleton comprise our “body of relevant case
law,” see 

(quotation omitted), that made it sufficiently
clear at the time of the incident to warn a reasonable officer that the use of force
against a non-threatening misdemeanant who was not fleeing, resisting arrest, or
ignoring other commands violates that individual’s right to be free from excessive
force. Viewing the facts in the light most favorable to Kelsay—which we are required
to do at this stage of the litigation—she satisfies all of these criteria. First, Kelsay was
a misdemeanant and not suspected of a “severe or violent crime.” See 

. She was convicted of two misdemeanor offenses after pleading no
contest to attempted obstruction of government operations and disturbing the peace.
See 

violation); 

n.4 (interfering with official
acts); 

(disorderly conduct); 

(interference with official acts).




                                           -15-
       Second, viewing the facts in the light most favorable to Kelsay, Kelsay was
non-threatening.3 Kelsay was a small woman standing at 5 feet tall and weighing 130
pounds and dressed in a swimsuit, who was walking toward her daughter both before
and after her conversation with Deputy Ernst. She had no weapon and never verbally
or physically threatened anyone. See 

. As the majority
recognizes, while the female patron who was arguing with Kelsay’s daughter “later
realized that Kelsay was ‘coming towards me to hurt me or yell at me or whatever she
was planning on doing,’” she initially “testified that she did not feel threatened at that
particular moment.” 

Op. at 3 (emphasis added).

       Third, viewing the facts in the light most favorable to Kelsay, she was not
attempting to flee, resisting arrest, or ignoring Deputy Ernst’s commands. In response
to Deputy Ernst grabbing Kelsay’s arm and commanding her to “get back here,”
Kelsay “stopped, turned around, and . . . told him, someone is talking shit to my kid,
I want to know what’s going on.” Br. in Support of Mot. for Summ. J., Ex. C, at 43,
Kelsay v. Ernst, No. 4:15-cv-3077 (D. Neb. Feb. 2, 2017), ECF No. 53-8. At that
time, Deputy Ernst “let go” of Kelsay’s arm. 

see also 

Deputy Ernst
said nothing in response to Kelsay’s explanation. Because Deputy Ernst “didn’t say
anything” to Kelsay in response, she “turned around and started walking back.” 

Kelsay testified that she was not resisting arrest or stopping Deputy Ernst from
handcuffing her. She also testified that she did not know that Chief Kirkpatrick
wanted Deputy Ernst to arrest her. Nevertheless, Deputy Ernst “ran up behind
[Kelsay] and he grabbed [her] and slammed [her] to the ground.” 

The
maneuver—“like, a bear hug”—lifted Kelsay “off the ground.” 

99. Due to
the ground impact, Kelsay briefly lost consciousness. Deputy Ernst’s takedown
maneuver broke Kelsay’s collarbone.


      3
        The majority acknowledges the district court’s “assumed fac[t]” “that Kelsay
was not in a position to threaten witnesses [and] that she posed no danger to anyone”
is not “blatantly contradicted by inconvertible evidence.” 

Op. at 4.

                                          -16-
       The majority characterizes Kelsay’s actions as one of “a suspect who ignores
a command and walks away”; therefore, it holds that “[d]ecisions concerning the use
of force against suspects who were compliant or engaged in passive resistance are
insufficient to constitute clearly established law that governs an officer’s use of
force.” Supra Op. at 7. But crediting Kelsay’s account of the events, Kelsay complied
with Deputy Ernst’s command to “get back here” by stopping, turning around, and
explaining what she was doing; in response, Deputy Ernst let go of Kelsay’s arm and
said nothing further. If there is a dispute of fact on this question, it is material and
should be resolved by a jury.

       The majority relies on Ehlers as “[o]ur closest decision on 

Op.
at 7, but Ehlers is distinguishable. The plaintiff in Ehlers twice ignored the officer’s
command to put his hands behind his back and continued walking as he passed the
officer. For this reason, we held that the plaintiff “at least appeared to be 

(citing Small v. McCrystal, 

, 1005 (8th Cir. 2013). By
contrast, the facts construed in the light most favorable to Kelsay show that she did
comply with Deputy Ernst’s command to “get back here” by stopping, turning around,
and explaining what she was doing. Deputy Ernst implicitly recognized her
compliance by letting go of her arm and saying nothing in response to her
explanation.

       In summary, construing the facts in the light most favorable to Kelsay, a
reasonable officer would have known based on our body of precedent that a full-body
takedown of a small, nonviolent misdemeanant who was not attempting to flee,
resisting arrest, or ignoring other commands was excessive under the circumstances.

      For these reasons, I respectfully dissent.




                                          -17-
GRASZ, Circuit Judge, dissenting.

       While the physical injury suffered by Ms. Kelsay is a serious and unfortunate
event, the outcome here underscores a wider legal problem.

       Like the other dissenting judges, I believe any reasonable officer would have
known his conduct in this case violated Ms. Kelsay’s constitutional rights under
existing case law. That is simply a disagreement with the majority on the application
of precedent. Beyond this, however, I do take exception to the court’s opinion in one
important respect.

       At oral argument, the absence of judicial opinions in this circuit addressing the
specific facts here, including the precise take-down maneuver used on Ms. Kelsay,
was used to counter the arguments of her counsel. Yet, the court now declines to
address whether the maneuver used on Ms. Kelsay violated her constitutional rights.
Instead, the court relies solely on the second (“clearly established”) prong of qualified
immunity analysis. While this is allowed by governing precedent, Pearson v.
Callahan, 

, 236 (2009), it is, in my view, inappropriate in this case as
it perpetuates the very state of affairs used to defeat Ms. Kelsay’s attempt to assert her
constitutional rights. See Zadeh v. Robinson, 

, 479-80 (5th Cir. 2019)
(Willet, J. concurring in part, dissenting in part) (“Section 1983 meets Catch-22.”).
The Supreme Court indicated in Pearson that the option for courts to skip to the
second prong of analysis would not necessarily stunt the development of
constitutional law. 

. The court’s opinion belies that
expectation, at least in the context of excessive force claims.

      This situation has much broader implications than Ms. Kelsay’s broken collar
bone. In the context of violations of constitutional rights by state officials,
application of Pearson in this manner imposes a judicially created exception to a
federal statute that effectively prevents claimants from vindicating their constitutional

                                          -18-
rights. The law is never made clear enough to hold individual officials liable for
constitutional violations involving excessive force as Congress authorized in 42
U.S.C. § 1983. Importantly, while Pearson authorizes this analytical approach, it
does not require it.

        There is a better way. We should exercise our discretion at every reasonable
opportunity to address the constitutional violation prong of qualified immunity
analysis, rather than defaulting to the “not clearly established” mantra, where, as here,
such analysis is not an “academic exercise,” 

, and where it
is “difficult to decide whether a right is clearly established without deciding precisely
what the existing constitutional right happens to be.” 

(quoting Lyons v.
Xenia, 

, 581 (6th Cir. 2005) (Sutton, J., concurring)).

      While implementation of this approach may or may not have brought relief to
Ms. Kelsay in this court, it would help ensure this sad situation is not repeated. The
protection of civil rights and the preservation of the rule of law deserves no less.
                        ______________________________




                                          -19-