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A Wymore woman's excessive force lawsuit against a Gage County sheriff's deputy isn't likely to make it in front of a jury, following a ruling this week by the 8th U.S. Circuit Court of Appeals.

Still, Melanie Kelsay's case, which ended in a split decision for the second time in less than a year, seems to show that even judges aren't united when it comes to what exactly qualifies as law enforcement going too far.

Split 8-4, the majority Tuesday reversed U.S. District Judge John Gerrard, who in 2017 denied deputy Matt Ernst's motion to find that he was immune from the suit.

It all stems from what happened May 29, 2014, at the swimming pool in Wymore. Kelsay said while she and her three kids and Patrick Caslin, a friend, were there, Caslin acted like he was going to throw her in. She said they were just playing around. But someone called police, thinking she had been assaulted.

When police arrived, she tried to explain to officers putting Caslin in handcuffs. But they put him in a patrol car. When Kelsay started to walk toward her daughter, Ernst ran up behind her, grabbed her arm and told her to "get back here."

She stopped and turned to face the deputy, who let go of her arm, and said she wanted to know what a woman at the pool was saying to Kelsay's daughter. After she walked a few feet away from Ernst, the deputy placed her in a "bear hug, threw her to the ground, and placed her in handcuffs."

She lost consciousness when she hit the ground, breaking a collarbone.

Kelsey later sued, alleging the takedown maneuver was unreasonable force under the circumstances.

In his order, Gerrard had said Ernst's excessiveness of force would have been apparent to a reasonable officer, the legal standard. "Because, while Kelsay was not precisely 'compliant' ... she was not using force or actively resisting arrest, and posed no danger to anyone," he wrote.

Ernst appealed.

In September, a panel of three 8th Circuit judges decided 2-1 in the deputy's favor and reversed Gerrard's decision. But the full panel later agreed to vacate that opinion and hear the case.

In Tuesday's majority opinion, Judge Steven Colloton of Des Moines, Iowa, said the judges respectfully disagree with Gerrard's conclusion.

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Prior decisions were insufficient to constitute clearly established law to provide an officer guidance on his or her use of force against suspects who ignore a command and walk away, he said.

"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," Colloton wrote.

In a dissent, Chief Judge Lavenski Smith, of Little Rock, Arkansas, said case law was sufficiently clear to warn an officer against the use of force in a case like this, where Kelsay, at 5-foot and 130 pounds, was dressed in a swimming suit, walking toward her daughter with no weapon and not threatening anyone.

In a separate dissent, Judge Steven Grasz of Omaha said: While Kelsay's physical injury was "a serious and unfortunate event, the outcome here underscores a wider legal problem."

He said the majority had pointed to an absence of prior judicial opinions with the same facts, including the takedown maneuver used on Kelsay, to counter arguments in her favor. Yet they didn't address whether using the maneuver on her violated her constitutional rights.

Grasz said there is a better way. He said they should exercise their discretion at every reasonable opportunity to address what actions are constitutional or not rather than defaulting to the "not clearly established mantra."

"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," he said.

Reach the writer at 402-473-7237 or lpilger@journalstar.com.

On Twitter @LJSpilger.

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Lori Pilger is a public safety reporter.

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