Melanie Kelsay v. Matt Ernst

The circuit courts of appeals are split about a matter of exceptional importance involving excessive force and qualified immunity for police officers who assault non-threatening, non-fleeing individuals. The First, Fifth, Sixth, and Tenth Circuits have held that the case law is sufficiently clear to warn a reasonable officer that the Fourth Amendment forbids the use of substantial force against a non-threatening suspected misdemeanant who is not fleeing, resisting arrest, or posing any risk to the safety of others. See Westfall v. Luna, 903 F.3d 534, 549 (5th Cir. 2018); Ciolino v. Gikas, 861 F.3d 296, 306 (1st Cir. 2017); Kent v. Oakland County, 810 F.3d 384, 397 (6th Cir. 2016); Casey v. City of Federal Heights, 509 F.3d 1278, 1285 (10th Cir. 2007). This is the case, these courts have held, even if the suspected misdemeanant fails to comply with a police officer’s commands. In this case, however, an 8–4 majority of the Eighth Circuit—sitting en banc and over two dissenting opinions—broke with the uniform approach of these decisions. It held that an officer who slammed a small, non-violent, non-threatening woman to the ground with such force that it broke her shoulder was entitled to qualified immunity as a matter of law. This was so even though the woman was suspected only of a misdemeanor and was not fleeing, resisting arrest, or posing any risk whatsoever to others. The majority reached that conclusion because the woman—Petitioner here—could not point to a prior Eighth Circuit case that involved a plaintiff who was not precisely compliant with a police officer’s command to “get back here.” (i)