LOMBARDO et al. v. CITY OF ST. LOUIS, MISSOURI et al.

on petition for writ of certiorari to the united states court of appeals for the eighth circuit No. 20–391.

Decided June 28, 2021 Nicholas Gilbert was pronounced dead at a hospital after being restrained in various ways, including in a sustained prone position, by multiple offcers in his holding cell at the St. Louis Metropolitan Police Department. His parents sued, alleging that the offcers had used excessive force. The District Court granted summary judgment in favor of the offcers, concluding that they were entitled to qualifed immunity because they did not violate a constitutional right that was clearly established at the time of the incident. The Eighth Circuit affrmed on different grounds, holding that the offcers did not apply unconstitutionally excessive force against Gilbert.

Held: Because it is unclear in this excessive force case whether the Eighth Circuit incorrectly thought the use of a prone restraint is per se constitutional so long as an individual appears to resist offcers' efforts to subdue him, the Eighth Circuit's judgment is vacated, and the case is remanded to give that court the opportunity in the frst instance to employ the careful, context-specifc analysis required by this Court's excessive force precedent. See Graham v. Connor, 490 U. S. 386, 396. Relevant circumstances include “the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the offcer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the offcer; and whether the plaintiff was actively resisting.” Kingsley v. Hendrickson, 576 U. S. 389, 397. Although the Eighth Circuit cited the Kingsley factors, it is unclear whether the court thought the use of a prone restraint—no matter the kind, intensity, duration, or surrounding circumstances—is per se constitutional so long as an individual appears to resist offcers' efforts to subdue him. Evidence that St. Louis instructs its offcers that pressing down on the back of a prone subject can cause suffocation, when considered alongside the duration of the restraint and the fact that Gilbert was handcuffed and leg shackled when restrained, may be pertinent to the relationship between the need for the use of force and the amount of force used, the security problem at issue, and the threat—to both Gilbert and others—reasonably perceived by the offcers. Having either failed to analyze such evidence or

characterized it as insignifcant, the Eighth Circuit's opinion could be read to treat Gilbert's “ongoing resistance” as controlling as a matter of law. 956 F. 3d 1009, 1014. The Court expresses no view as to whether the offcers used unconstitutionally excessive force or, if they did, whether Gilbert's right to be free of such force in these circumstances was clearly established at the time of his death, and instead remands the case to the Eighth Circuit for its consideration of those questions in the frst instance.

Certiorari granted; 956 F. 3d 1009, vacated and remanded. Per Curiam.

On the afternoon of December 8, 2015, St. Louis police offcers arrested Nicholas Gilbert for trespassing in a condemned building and failing to appear in court for a traffc ticket.¹ Offcers brought him to the St. Louis Metropolitan Police Department's central station and placed him in a holding cell. At some point, an offcer saw Gilbert tie a piece of clothing around the bars of his cell and put it around his neck, in an apparent attempt to hang himself. Three offcers responded and entered Gilbert's cell. One grabbed Gilbert's wrist to handcuff him, but Gilbert evaded the offcer and began to struggle. The three offcers brought Gilbert, who was 5'3” and 160 pounds, down to a kneeling position over a concrete bench in the cell and handcuffed his arms behind his back. Gilbert reared back, kicking the offcers and hitting his head on the bench. After Gilbert kicked one of the offcers in the groin, they called for more help and leg shackles. While Gilbert continued to struggle, two offcers shackled his legs together. Emergency medical services personnel were phoned for assistance.

Several more offcers responded. They relieved two of the original three offcers, leaving six offcers in the cell with Gilbert, who was now handcuffed and in leg irons. The off¹Because this case was decided by summary judgment, the evidence here recounted is viewed “ `in the light most favorable' ” to the nonmoving party (here, Gilbert's parents, the petitioners). Tolan v. Cotton, 572 U. S. 650, 655–656 (2014) (per curiam).

Page Proof Pending Publication cers moved Gilbert to a prone position, face down on the foor. Three offcers held Gilbert's limbs down at the shoulders, biceps, and legs. At least one other placed pressure on Gilbert's back and torso. Gilbert tried to raise his chest, saying, “ `It hurts. Stop.' ” Lombardo v. Saint Louis City, 361 F. Supp. 3d 882, 898 (ED Mo. 2019).

After 15 minutes of struggling in this position, Gilbert's breathing became abnormal and he stopped moving. The offcers rolled Gilbert onto his side and then his back to check for a pulse. Finding none, they performed chest compressions and rescue breathing. An ambulance eventually transported Gilbert to the hospital, where he was pronounced dead.

Gilbert's parents sued, alleging that the offcers had used excessive force against him. The District Court granted summary judgment in favor of the offcers, concluding that they were entitled to qualifed immunity because they did not violate a constitutional right that was clearly established at the time of the incident. Id., at 895. The U. S. Court of Appeals for the Eighth Circuit affrmed on different grounds, holding that the offcers did not apply unconstitutionally excessive force against Gilbert. 956 F. 3d 1009, 1014 (2020). In assessing a claim of excessive force, courts ask “whether the offcers' actions are `objectively reasonable' in light of the facts and circumstances confronting them.”

Graham v. Connor, 490 U. S. 386, 397 (1989).² “A court (judge or jury) cannot apply this standard mechanically.” ²Petitioners brought their excessive force claims under both the Fourth and Fourteenth Amendments. See, e. g., First Amended Complaint in No. 4:16–cv–01637 (ED Mo.), ECF Doc. 28, p. 46. We need not address whether the Fourth or Fourteenth Amendment provides the proper basis for a claim of excessive force against a pretrial detainee in Gilbert's position. Whatever the source of law, in analyzing an excessive force claim, a court must determine whether the force was objectively unreasonable in light of the “ `facts and circumstances of each particular case.' ” Kingsley v. Hendrickson, 576 U. S. 389, 397 (2015) (quoting Graham, 490 U. S., at 396).

Page Proof Pending Publication Kingsley v. Hendrickson, 576 U. S. 389, 397 (2015). Rather, the inquiry “requires careful attention to the facts and circumstances of each particular case.” Graham, 490 U. S., at 396. Those circumstances include “the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the offcer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the offcer; and whether the plaintiff was actively resisting.” Kingsley, 576 U. S., at 397.

Although the Eighth Circuit cited the Kingsley factors, it is unclear whether the court thought the use of a prone restraint—no matter the kind, intensity, duration, or surrounding circumstances—is per se constitutional so long as an individual appears to resist offcers' efforts to subdue him. The court cited Circuit precedent for the proposition that “the use of prone restraint is not objectively unreasonable when a detainee actively resists offcer directives and efforts to subdue the detainee.” 956 F. 3d, at 1013. The court went on to describe as “insignifcant” facts that may distinguish that precedent and appear potentially important under Kingsley, including that Gilbert was already handcuffed and leg shackled when offcers moved him to the prone position and that offcers kept him in that position for 15 minutes. See 956 F. 3d, at 1013–1015.

Such details could matter when deciding whether to grant summary judgment on an excessive force claim. Here, for example, record evidence (viewed in the light most favorable to Gilbert's parents) shows that offcers placed pressure on Gilbert's back even though St. Louis instructs its offcers that pressing down on the back of a prone subject can cause suffocation. The evidentiary record also includes well- known police guidance recommending that offcers get a subject off his stomach as soon as he is handcuffed because of that risk. The guidance further indicates that the struggles of a prone suspect may be due to oxygen defciency, rather Page Proof Pending Publication Page Proof Pending Publication than a desire to disobey offcers' commands. Such evidence, when considered alongside the duration of the restraint and the fact that Gilbert was handcuffed and leg shackled at the time, may be pertinent to the relationship between the need for the use of force and the amount of force used, the security problem at issue, and the threat—to both Gilbert and others—reasonably perceived by the offcers. Having either failed to analyze such evidence or characterized it as insignifcant, the court's opinion could be read to treat Gilbert's “ongoing resistance” as controlling as a matter of law.³ Id., at 1014. Such a per se rule would contravene the careful, context-specifc analysis required by this Court's excessive force precedent.

We express no view as to whether the offcers used unconstitutionally excessive force or, if they did, whether Gilbert's right to be free of such force in these circumstances was clearly established at the time of his death. We instead grant the petition for certiorari, vacate the judgment of the Eighth Circuit, and remand the case to give the court the opportunity to employ an inquiry that clearly attends to the facts and circumstances in answering those questions in the frst instance.

It is so ordered.

I cannot approve the Court's summary disposition because it unfairly interprets the Court of Appeals' decision and evades the real issue that this case presents: whether the record supports summary judgment in favor of the defendant police offcers and the city of St. Louis. The Court of Appeals held that the defendants were entitled to summary ³While the dissent suggests we should give the Eighth Circuit the beneft of the doubt, in assessing the appropriateness of review in this factbound context, it is more prudent to afford the Eighth Circuit an opportunity to clarify its opinion rather than to speculate as to its basis. judgment because a reasonable jury would necessarily fnd that the police offcers used reasonable force in attempting to subdue petitioner Lombardo's son, Nicholas Gilbert, when he was attempting to hang himself in his cell. In reaching this conclusion, the Court of Appeals applied the correct legal standard and made a judgment call on a sensitive question. This case, therefore, involves the application of “a properly stated rule of law” to a particular factual record, and our rules say that we “rarely” review such questions. See this Court's Rule 10. But “rarely” does not mean “never,” and if this Court is unwilling to allow the decision below to stand, the proper course is to grant the petition, receive briefng and argument, and decide the real question that this case presents.

That is the course I would take. I do not think that this Court is above occasionally digging into the type of fact- bound questions that make up much of the work of the lower courts, and a decision by this Court on the question presented here could be instructive.

The Court, unfortunately, is unwilling to face up to the choice between denying the petition (and bearing the criticism that would inevitably elicit) and granting plenary review (and doing the work that would entail). Instead, it claims to be uncertain whether the Court of Appeals actually applied the correct legal standard, and for that reason it vacates the judgment below and remands the case.

This course of action may be convenient for this Court, but it is unfair to the Court of Appeals. If we expect the lower courts to respect our decisions, we should not twist their opinions to make our job easier.

When the Court of Appeals' opinion is read in the way we hope our opinions will be interpreted, it is clear that the Court of Appeals understood and applied the correct standard for excessive-force claims. The per curiam acknowledges that the Court of Appeals correctly cited the factors that must be taken into account in determining whether the Page Proof Pending Publication Page Proof Pending Publication offcers' actions were objectively reasonable. Ante, at 467; see 956 F. 3d 1009, 1013 (CA8 2020). But the per curiam fnds it “unclear whether the [Court of Appeals] thought the use of a prone restraint—no matter the kind, intensity, duration, or surrounding circumstances—is per se constitutional so long as an individual appears to resist offcers' efforts to subdue him.” Ante, at 467.

Can the Court seriously think that the Eighth Circuit adopted such a strange and extreme position—that the use of prone restraint on a resisting detainee is always reasonable no matter how much force is used, no matter how long that force is employed, no matter the physical condition of the detainee, and no matter whether the detainee is obviously suffering serious or even life-threatening harm? Suppose offcers with a combined weight of 1,000 pounds knelt on the back of a frail and infrm detainee, used all their might to press his chest and face into a concrete foor for over an hour, did not desist when the detainee cried, “You're killing me,” and ended up inficting fatal injuries. Does the Court really believe that the Court of Appeals might have thought that this extreme use of force would be reasonable? Is there any support for that interpretation in the Court of Appeals' opinion?

The per curiam latches onto this sentence in the opinion below: “This Court has previously held that the use of prone restraint is not objectively unreasonable when a detainee actively resists offcer directives and efforts to subdue the detainee.” 956 F. 3d, at 1013; see ante, at 467. Read in context, its meaning is apparent.

The sentence recounts and cites to what the Eighth Circuit had held in an earlier case, Ryan v. Armstrong, 850 F. 3d 419 (2017), in which a resisting detainee had been held in a prone position for a period of time. In order to understand the sentence in the opinion below, it is necessary to look at that prior decision. And when the language in the decision below is read in that way, what it obviously means is that the use of prone restraint is not objectively unreasonable per se when a detainee is actively resisting. That is exactly what the appellees, citing Ryan, had argued: “No court has held that placing a resisting prisoner in a prone position while restrained is per se unreasonable.” Brief for Appellees in No. 19–1469 (CA8), p. 24. That is a correct reading of Ryan, and that is how the opinion below interpreted it. Ryan held only that the use of force in that case was reasonable based on “the totality of th[e] circumstances,” including the detainee's resistance. 850 F. 3d, at 428. The Ryan court explained: “Several factors support the foregoing conclusion.

Among the most important is the observation that [the detainee] was actively resisting the extraction procedure by ignoring directives to lie down on his bunk and resisting the defendants' efforts to subdue him once they entered his cell.” Ibid. (emphasis added).

Thus, Ryan clearly did not adopt any sort of blanket rule, and the sentence in this case that the per curiam seizes upon did not purport to go beyond Ryan.

This Court's per curiam refers to one other statement in the opinion below. The per curiam states: “The [Eighth Circuit] went on to describe as `insignifcant' facts that may distinguish [Ryan] and appear potentially important under Kingsley, including that Gilbert was already handcuffed and leg shackled when offcers moved him to the prone position and that offcers kept him in that position for 15 minutes.” Ante, at 467 (quoting 956 F. 3d, at 1014).

Here, again, the per curiam strains to give the Eighth Circuit's opinion a possible interpretation that can justify a remand. But when this sentence is read in context, what it plainly means is not that the duration of the offcers' use of force or the fact that Gilbert had been handcuffed and shackled were irrelevant but that certain factual differences bePage Proof Pending Publication tween this case and Ryan were not signifcant in the sense that they did not call for a different result.

The court used the term “insignifcant” in responding to Lombardo's efforts to distinguish Ryan. Lombardo argued that this case is different because Gilbert was restrained for a longer period and, unlike the detainee in Ryan, had already been handcuffed and shackled. See 956 F. 3d, at 1014; Brief for Plaintiffs-Appellants in No. 19–1469 (CA8), pp. 14–15. What the Eighth Circuit characterized as “insignifcant” were these factual differences between the two cases.* Without carefully studying the record, I cannot be certain whether I would have agreed with the Eighth Circuit panel that summary judgment for the defendants was correct.

The offcers plainly had a reasonable basis for using some degree of force to restrain Gilbert so that he would not harm himself, and it appears that Gilbert, despite his slight stature, put up a ferce and prolonged resistance. See 956 F. 3d, at 1011–1014. On the other hand, the offcers' use of force *The Eighth Circuit wrote: “Lombardo argues that Ryan is not on point. Specifcally, Lombardo argues that, unlike Ryan, in which the detainee was held in prone restraint for approximately three minutes until he was handcuffed, . . . Gilbert was held in prone restraint for ffteen minutes and was placed in this position only after he had been handcuffed and leg-shackled. Lombardo also argues that she presented expert testimony that Gilbert's cause of death was forcible restraint inducing asphyxia whereas the undisputed cause of death in Ryan was sudden unexpected death during restraint. . . . We fnd these differences to be insignifcant. This Court has previously noted that `[h]andcuffs limit but do not eliminate a person's ability to perform harmful acts.' United States v. Pope, 910 F. 3d 413, 417 (8th Cir. 2018), cert. denied, [589 U. S. ––– (2019)]. As discussed above, the undisputed facts show that Gilbert continued to violently struggle even after being handcuffed and leg-shackled. Specifcally, after being handcuffed, he thrashed his head on the concrete bench, causing him to suffer a gash on his forehead, and he continued to violently thrash and kick after being leg-shackled. Because of this ongoing resistance, the Offcers moved Gilbert to the prone position so as to minimize the harm he could infict on himself and others.” 956 F. 3d, at 1014.

Page Proof Pending Publication inficted serious injuries, and the medical evidence on the cause of death was conficting. See id., at 1012.

We have two respectable options: deny review of the fact- bound question that the case presents or grant the petition, have the case briefed and argued, roll up our sleeves, and decide the real issue. I favor the latter course, but what we should not do is take the easy out that the Court has chosen. Page Proof Pending Publication