The 8th U.S. Circuit Court of Appeals has vacated a three-judge panel's decision in a woman's excessive force lawsuit against a Gage County sheriff's deputy and agreed to have the full bench rehear the case.
The rare move came in Melanie Kelsay's case.
In 2015, she sued Deputy Matt Ernst and others involved in her May 29, 2014, arrest, saying Ernst broke her collarbone during the encounter in Wymore.
She alleged it was a wrongful arrest and excessive force and sought compensation for the $40,000 in medical bills that followed.
Last year, 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.
In September, a panel of three 8th Circuit judges decided 2-1 in the deputy's favor and reversed Gerrard's decision.
In that decision, the majority said 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."
But in a dissent, Chief Judge Lavenski R. Smith of Little Rock, Arkansas, 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."
Friday, the 8th Circuit vacated the decision and agreed to rehear Kelsay's case as a full court in St. Louis. The date hasn't yet been set.
In the lawsuit, Kelsay said the incident started when a friend pretended to push her into a pool and another woman called police.
As they left the pool, Wymore police arrested the man for domestic assault despite Kelsay saying nothing happened.
Ernst arrived to help.
Kelsay said as she 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 reports, Wymore police said Kelsay tried to keep them 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, police said, she began flailing and kicking.
Kelsay paid a $400 fine after pleading no contest to attempted obstruction and disturbing the peace.