A divided federal appeals panel has reversed a judge's decision that would have let a woman's excessive force lawsuit go forward against a Gage County sheriff's deputy.
Still, one of the 8th U.S. Circuit Court of Appeals judges who agreed with the outcome in Melanie Kelsay's case took issue with the deputy's actions May 29, 2014, in Wymore.
"The slamming of this lady to the ground by the deputy with force sufficient to fracture her shoulder was uncalled for given the nature of the encounter underway," Judge C. Arlen Beam of Lincoln wrote in Thursday's order.
In 2015, Kelsay sued Deputy Matt Ernst and others involved in her arrest, saying Ernst broke her collarbone during the encounter.
She alleged it was a wrongful arrest and excessive force, and she sought compensation for the $40,000 in medical bills that followed.
In May 2017, U.S. District Judge John Gerrard dismissed everyone but Ernst from the lawsuit, denying the deputy's motion to find that he was immune from the suit.
In his order, he said Ernst's excessiveness of force would have been apparent to a reasonable officer because, while Kelsay had kept walking when she'd been told to stop, she wasn't using force or posing a threat to anyone.
Thursday, a three-judge panel of the 8th Circuit Court decided 2-to-1 to reverse Gerrard's decision, finding it was not clearly established in May 2014 that a deputy was forbidden to use a takedown maneuver to arrest someone who ignored a deputy's instructions "and continued to walk away from the officer."
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Chief Judge Lavenski R. Smith of Little Rock, Arkansas, dissented. He said a jury could find the deputy's bear-hug takedown of Kelsay, a 5-foot, 130-pound woman, unreasonable under the circumstances.
He said it "should be obvious that a blind body slam of a comparatively slightly-built and nonviolent misdemeanant unreasonably increased the probability of injury."
In the lawsuit, Kelsay said the incident started when her friend pretended to push her into the pool. She said they were just playing, but another woman called police.
As they left the pool, Wymore Police Chief Russell Kirkpatrick and Officer Matthew Bornmeier arrested the man for domestic assault despite Kelsay saying nothing happened.
Gage County Sheriff's Deputy Matt Ernst arrived to help.
As Kelsay began to walk toward her daughter, an officer told her to stop. When she didn't, Ernst tackled her "so forcibly that she was knocked unconscious," the lawsuit alleged.
Ernst contended he had acted reasonably under the circumstances.
In police reports, Bornmeier said Kelsay tried to keep police from putting her friend in the cruiser and that she was tackled after she approached the woman who had called police and disobeyed police commands to stop. When an officer tried to restrain her, Bornmeier wrote, she began flailing and kicking.
Kelsay paid a $400 fine after pleading no contest to attempted obstruction and disturbing the peace.