CA8 (en banc): Takedown of non-violent misdemeanant walking away was subject to QI

Defendant officer’s takedown of a misdemeanant who was walking away from him wasn’t clearly established and he gets qualified immunity. Kelsay v. Ernst, 2019 U.S. App. LEXIS 24059 (8th Cir. Aug. 13, 2019) (en banc; 4 dissents)*:

… 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.

Smith, C.J., dissenting:

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.

Grasz, J., dissenting: The Pearson analysis undermines development of Fourth Amendment law.


Plaintiff was taken down after ignoring repeated requests to sit in the patrol car and then pulling away when she was taken by the arm. Her knee was broken in the fall with the officer landing on her, and she continued to struggle. This was subject to qualified immunity because of the lack of case law that it wasn’t inappropriate. Murphy v. Engelhart, 2019 U.S. App. LEXIS 24202 (8th Cir. Aug. 14, 2019).*

This entry was posted in Arrest or entry on arrest, Excessive force. Bookmark the permalink.

Comments are closed.