Under the doctrine of qualified immunity, government officials are protected from damages liability in suits brought under 42 U.S.C. § 1983, so long as their conduct did not violate a clearly established right of which a reasonable official would have known.1 Applying this standard — and in particular, determining whether a right is clearly established — has been the source of much confusion.2 While the Supreme Court has made clear that a plaintiff challenging qualified immunity must point to precedent that “squarely governs” the facts at issue,3 it has failed to provide any meaningful guidance as to the degree of factual similarity required.4 Recently, in Kelsay v. Ernst,5 the Eighth Circuit held that an officer who performed a takedown maneuver on a nonviolent, nonthreatening, nonfleeing misdemeanant was entitled to qualified immunity on the basis that the law surrounding the officer’s use of force was not clearly established.6 In searching for a case that “squarely govern[ed]” the facts at issue, the court constrained the universe of relevant precedent and virtually guaranteed the outcome of its qualified immunity analysis. Kelsay thus highlights the danger in demanding factually specific precedent and shows why courts should prefer a standard based on general principles.
On May 29, 2014, Melanie Kelsay was at a public pool in Wymore, Nebraska, with her three children and her friend Patrick Caslin.7 Caslin, at one point, came up behind Kelsay as if to throw her into the pool; onlookers believed Caslin was assaulting Kelsay, and a pool employee called the police.8 When Kelsay and her party left the pool, Wymore Police Chief Russell Kirkpatrick and Officer Matthew Bornemeier were waiting for them,9 and Kirkpatrick placed Caslin under arrest for domestic assault.10 Kelsay tried to explain that she and Caslin were just “playing around.”11 When that failed, she stood in front of the patrol car door until Bornemeier escorted her away.12 Gage County Sheriff’s Deputy Matt Ernst and Sergeant Jay Welch arrived, and Kirkpatrick told them that “Kelsay tried to prevent Caslin’s arrest” and should be arrested.13 Kelsay began to walk toward her daughter, who was arguing with a patron near the pool doors, but Ernst “grabbed [Kelsay’s] arm, and told her to ‘get back here.’”14 Kelsay stopped, turned toward Ernst, and explained that she wanted to know what the patron was saying to her daughter, then continued to walk toward her daughter.15 Ernst then placed Kelsay — who was approximately five feet tall and 130 pounds — in a “bear hug” and threw her to the ground, rendering Kelsay briefly unconscious and fracturing her collarbone.16
Kelsay sued the City of Wymore and Kirkpatrick, Bornemeier, Ernst, and Welch for wrongful arrest, excessive use of force, and deliberate indifference to her medical needs.17 In May 2017, the district court denied Ernst’s motion for summary judgment on Kelsay’s excessive force claim but granted the other defendants’ motions on all remaining claims.18 Because Ernst argued that he was entitled to qualified immunity, the court applied the two-part qualified immunity test, which asks (1) whether the officer violated a constitutional right, and (2) whether that right was clearly established at the time of the incident.19 Under Pearson v. Callahan,20 a court need not answer both questions; so long as the answer to either question is no, the officer is not held liable.21 The district court first considered whether Ernst had violated Kelsay’s Fourth Amendment right to be free from excessive force — that is, whether Ernst’s use of force was objectively reasonable.22 Viewing the facts in the light most favorable to Kelsay, the court concluded that although Kelsay “was not precisely ‘compliant,’” she was not violent, threatening, or “actively resisting arrest,” and thus, a jury could find that Ernst’s takedown maneuver was unreasonable.23
Next, the district court found that Kelsay’s right to be free from this excessive use of force was clearly established.24 Citing several cases in which the Eighth Circuit found unreasonable the use of force against nonviolent, nonthreatening, nonfleeing individuals who were “interfering with police or behaving disrespectfully,” the district court stated that “[f]orce may only be used to overcome physical resistance or threatened force, and may not be employed simply because a suspect is disagreeable.”25 Thus, if Kelsay’s account of the events leading to her takedown were true, “the excessiveness of Ernst’s use of force would have been apparent.”26 But because Ernst’s account differed materially from Kelsay’s, the court ruled that qualified immunity and summary judgment were precluded.27
Ernst appealed from the district court’s judgment, and an Eighth Circuit panel reversed on the basis that the law surrounding Ernst’s use of force was not clearly established.28 In coming to this conclusion, the court relied primarily on its decision in Ehlers v. City of Rapid City,29 wherein it held that an officer did not violate the Fourth Amendment by using force against a nonviolent misdemeanant who continued to walk away after being ordered twice to place his hands behind his back.30 The court added that none of the decisions cited by the district court could clearly establish the law in this particular context, since none of them involved the specific factual scenario of “a suspect who ignored an officer’s command and walked away.”31
The Eighth Circuit granted an en banc rehearing and, like the panel opinion it vacated, reversed the district court’s judgment.32 Writing for the en banc court, Judge Colloton33 noted that in the context of excessive force, “police officers are entitled to qualified immunity unless existing precedent squarely governs the specific facts at issue.”34 Like the panel, the en banc court held that it was not clearly established that Ernst could not perform a takedown maneuver on Kelsay after she disregarded his command.35 The en banc court, however, emphasized the differences between the incident at issue and each of the cases cited by Kelsay and the district court, concluding that none “squarely govern[ed] the specific facts at issue.”36 Specifically, since those cases involved “suspects who were compliant or engaged in passive resistance,” they did not “constitute clearly established law” in the circumstances surrounding Ernst’s use of force against Kelsay.37 Finally, the court cited Ehlers as its “closest decision on point,” and, as in the panel decision, concluded that it supported qualified immunity for Ernst.38
Chief Judge Smith dissented, disagreeing in particular with the majority’s characterization of Kelsay’s behavior and the relevant precedent.39 Whereas the majority focused on Kelsay’s noncompliance, Judge Smith emphasized that Kelsay was nonviolent, nonthreatening, nonfleeing, and nonresisting.40 Further, viewing the facts in the light most favorable to Kelsay, Judge Smith contended that Kelsay did comply with Ernst’s command by stopping, turning around, and explaining what she was doing.41 Judge Smith noted that Eighth Circuit case law, through a body of decisions dealing with circumstances similar to Kelsay’s, had clearly established 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.”42
Judge Grasz also wrote separately to note that “the outcome here underscores a wider legal problem.”43 Specifically, what happened to Kelsay could happen again, because the majority skipped the constitutionality prong of its qualified immunity analysis — as allowed by the Supreme Court’s decision in Pearson.44 As such, “[t]he law is never made clear enough to hold individual officials liable.”45
Given the Supreme Court’s lack of guidance as to the level of factual specificity required for the law to be clearly established, the divergent outcomes between the district court and the Eighth Circuit are not entirely surprising. It is worth noting that both the district court and the Eighth Circuit essentially agreed on the facts of the case; indeed, the district court conceded that Kelsay “was not precisely ‘compliant.’”46 What the courts disagreed on was which facts were relevant to the qualified immunity analysis and how similar those facts had to be to existing precedent. But Kelsay underscores the risk that the Supreme Court’s lack of guidance creates — namely, that a court’s framing of the relevant facts can determine the outcome of the qualified immunity analysis. Thus, courts should prefer a standard based on general principles, which would better protect plaintiffs without being outcome determinative.
The Supreme Court’s qualified immunity jurisprudence has failed to provide useful guidance to lower courts as to when the law is clearly established. Specifically, the Court has been unclear about the relevant facts lower courts should consider and the requisite degree of factual similarity between the case at hand and existing precedent. While the Court held in Hope v. Pelzer47 that “materially similar” facts are not necessary to clearly establish the law,48 just two years later, in Brosseau v. Haugen,49 the Court reversed a denial of qualified immunity on the basis that none of the cases the parties pointed to “squarely govern[ed]” the facts at issue.50 Since Brosseau, the Court has stated that in the context of excessive force, “the result [of the qualified immunity analysis] depends very much on the facts of each case.”51 Yet even as the Court has consistently heightened the standard for clearly establishing the law, it has not explicitly overruled Hope.52
Unsurprisingly, the circuit courts have struggled to reconcile the Supreme Court’s conflicting messages.53 Comparing the opinions within Kelsay is telling: In laying out the standard for qualified immunity, the majority noted that “existing precedent [must] squarely govern[] the specific facts at issue.”54 The dissent did not use that language, noting instead that while “a body of relevant case law is usually necessary,”55 “a case directly on point” is not.56 And while the district court noted the importance of “specificity . . . in the Fourth Amendment context,” it clarified, like the dissent, that a case on point is not necessary.57 The Supreme Court’s lack of guidance has thus led judges — even within the same jurisdiction — to determine whether the law is clearly established based on seemingly “arbitrary degree[s] of factual specificity.”58
How a court frames the question of whether the law is clearly established then virtually determines whether qualified immunity is granted or denied. Specifically, courts that allow general principles developed through prior case law to establish the law will be more likely to deny qualified immunity in a variety of circumstances, whereas courts that require a “factually identical case” will almost always grant qualified immunity.59 Relatedly, the facts the court deems germane to the analysis determine the relevant precedent.60 In Kelsay, the majority focused on the issue of Kelsay’s noncompliance, rather than the fact that she was not threatening, violent, or fleeing.61 But even that emphasis on noncompliance need not have resulted in qualified immunity for Ernst; the Eighth Circuit had previously denied qualified immunity in cases where the plaintiff had been noncompliant.62
The court in Kelsay guaranteed a grant of qualified immunity when it homed in on the particularities of Kelsay’s noncompliance: that she ignored one command and walked away.63 By deciding that the relevant fact was not just that Kelsay was noncompliant, but exactly how she was noncompliant, the court severely constrained the universe of relevant precedent. Indeed, while there were numerous Eighth Circuit cases involving use of force against noncompliant individuals, the court found none involving an individual who was taken down after ignoring one command and walking away.64 The court’s “closest decision on point” involved a misdemeanant who ignored two commands and walked away — and there, the court had granted qualified immunity.65 The court concluded that “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,” and thus Ernst was entitled to qualified immunity.66
Kelsay highlights why courts should prefer a qualified immunity standard that is less dependent on factually specific precedent and based instead on general principles. As noted by both the district court and the en banc dissent, an entire body of Eighth Circuit case law had established that “force is least justified” against nonviolent, nonthreatening, nonfleeing misdemeanants who are not resisting arrest.67 Under this principle, first articulated in the Supreme Court’s decision in Graham v. Connor,68 the Eighth Circuit has denied qualified immunity in a variety of factual contexts as early as 2002 and as recently as 2012.69 But the en banc majority did not even mention this principle. Instead, the majority demanded precedent involving “an officer’s use of force against a suspect who ignores a command and walks away.”70
Such an “exacting . . . demand for similarity in precedent” is overly protective of officers’ interests.71 Some commentators have observed that qualified immunity currently resembles something more like absolute immunity.72 As Fifth Circuit Judge Willett recently noted, an exacting standard “let[s] public officials duck consequences for bad behavior — no matter how palpably unreasonable — as long as they were the first to behave badly.”73 A generalized rule, on the other hand, “better protect[s] citizens” against excessive uses of police force.74
Application of broad principles does not grant a windfall to civil rights plaintiffs — it merely helps to level the playing field. Perhaps the most compelling argument against a qualified immunity standard based on general principles is that it would fail to provide sufficient notice to government officials. However, police officers already apply broad principles to a variety of situations every day.75 For instance, police officers are guided by use of force policies that typically “embrace fairly generalized standards” such as that expounded in Graham.76 Another concern is that the use of general principles will make attaining qualified immunity impossible. Yet the Eighth Circuit itself has granted qualified immunity under its general principle regarding use of force.77 Therefore, use of broad principles simply puts some weight on a side of the scale where, under the current qualified immunity framework and the approach taken in Kelsay, there is almost none.78
In light of the Supreme Court’s conflicting messages regarding what constitutes clearly established law, the Eighth Circuit had previously eschewed Brosseau’s demand for factually similar precedent in favor of Hope’s plaintiff-friendly notice standard.79 The court’s decision in Kelsay represents a stark departure from that approach. By adding a “narrow view of relevant precedent . . . to the demand for extreme factual specificity in the guidance those precedents must provide,”80 the court virtually guaranteed a grant of qualified immunity for Ernst.