67-32 at 34:1824. City of Mt. The U.S. Court of Appeals for the 8th Circuit dismissed the claims, holding that no reasonable jury could find that officers had used excessive force and therefore the officers could not be held liable. LOMBARDO v. CITY OF ST. LOUIS - Leagle on petition for writ of certiorari to the united states court of appeals for the eighth circuit No. at 321. 86 n.2. Moreover, there is no controlling or robust consensus of persuasive authority demonstrating the force used by Officers Wactor, Mack, Opel, Cognasso, Lemons, and vonNida while Mr. Gilbert was in the prone position violated clearly established law. Eastern District of Missouri (1 envelope). 2001) (collecting cases describing evidence of the danger of the hog-tie restraint). Does the Court really believe that the Court of Appeals might have thought that this extreme use of force would be reasonable? The Court also finds Simpson v. Hines , 903 F.2d 400 (5th Cir. 2017) (quoting Graham , 490 U.S. at 396, 109 S.Ct. Small v. McCrystal , 708 F.3d 997, 1005 (8th Cir. Id. Justice Alito, with whom Justice Thomas and Justice Gorsuch join, dissenting. Decision below 956 F.3d 1009 (8th Cir. 2000). 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. (See 67-34. 632.305 authorizing detention). At one point, a witness heard the arrestee yell out "for help" and state he was "having trouble breathing." , Smith v. City of Minneapolis , 754 F.3d 541, 546 (8th Cir. Rather, when such persons must be restrained, such restraints must comply with the SLMPD's general use of force policy. In order to understand the sentence in the opinion below, it is necessary to look at that prior decision. Additionally, it is of the utmost importance for every police department to have a sound use of force policy and be up to date on best police practices to protect itself and its officers from potential litigation down the road. Mo. The Court explained that the inquiry into whether the officers used excessive force required careful attention to the facts and circumstances of the case. The court also pointed to the fact that the encounter lasted no more than five minutes, with body weight being used for three minutes, and the autopsy did not show any significant injury or trauma, although the autopsy did note that the death occurred during restraint. Saying the Officers "got up" is not the same as saying they "held Mr. Gilbert down and did not get off of him" until he stopped breathing. Officer Lemons similarly witnessed Mr. Gilbert struggling and kicking, and Officer vonNida secured Mr. Gilbert so he could not thrash about. 1 Because this case was decided by summary judgment, the evidence here recounted is viewed in the light most favorable to the nonmoving party (here, Gilberts parents, the petitioners). Id. Id. Lombardo v. St. Louis, 594 U.S. ___ (2021). 78 86, 87. Additionally, even accepting Plaintiffs' argument that Mr. Gilbert was having a mental health crisis and posed no threat (Doc. 1415. They continue to focus on the positioning of Mr. Gilbert, further arguing, by pointing to case law, that "holding down a handcuffed, prone subject is dangerous and unreasonable," "putting substantial or significant pressure on a suspect's back while that suspect is in a face-down prone position after being subdued and/or incapacitated constitutes excessive force," and "putting pressure on a handcuffed individual in the prone position amounts to excessive force." Once the officers succeeded in handcuffing him, the officers restrained the individual in a variety of ways while he was lying prone, including using their body weight to hold down his feet, knees, and upper body and "chest area of his back." Three officers responded and entered Gilberts cell. Gilbert was held in prone restraint for fifteen minutes and was placed in this position only after he had been handcuffed and leg-shackled. 78 6769. Id. 2007) (quoted case omitted). C.A.03-CV-3822, 2005 WL 2212359, at *1011 (E.D. It is mandatory to procure user consent prior to running these cookies on your website. 548, 552, 196 L.Ed.2d 463 (2017) (finding it again necessary to reiterate to lower courts "the longstanding principle that clearly established law should not be defined at a high level of generality ") (citations omitted). Lombardo v. St. Louis SCOTUS opinion 6:28:21 Contributed by Law&Crime (Law&Crime) p. 1. Courts have found that it is reasonable to hold down various parts of an individual's body, including the back and torso areas, even when the individual is prone. 78 51.) Bishop v. Glazier , 723 F.3d 957, 961 (8th Cir. 2014) ; De Boise v. Taser Int'l, Inc. , 760 F.3d 892, 896 (8th Cir. Fourteenth Amendments. See 956 F.3d, at 10111014. In this case, Plaintiffs cannot defeat the Officers' defense of qualified immunity unless Plaintiffs are able to show that a reasonable officer would have been on notice as of December 8, 2015, that the Officers' conduct violated a clearly established right. The qualified immunity doctrine "shields government official from civil damage liability for discretionary action that does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. " De La Rosa v. White , 852 F.3d 740, 745 (8th Cir. After the suspect was calm, the officers stood up but noticed the detainee, who was still prone in handcuffs and leg shackles, did not look well. 1378, 103 L.Ed.2d 628 (1989). at 764. 86 31.) 67-43 at 59:1360:8.) RESOURCES (Doc. Mar. Despite the fact that there were discrepancies between the officers' accounts and the medical experts' testimony and findings, the district court found that, even assuming the officers' actions caused asphyxia, the officers acted reasonably. 1990), distinguishable on its facts. ; Doc. Id. (Doc. Aug. 27, 2010), ECF No. Another officer similarly placed the weight of his body on the arrestee, including placing a knee on his neck. Upon hearing Officer King, Officer Wactor went to notify a supervisor. United States Supreme Court Issues [Per Curiam] Decision in - Llrmi 86-5.) The law was not clearly established that this violated a constitutional right. . v. CITY OF ST. LOUIS, MISSOURI, et al. 2016) (affirming summary judgment when force was used upon back of prone, handcuffed individual whose legs were restrained); Bussey-Morice v. Kennedy , 657 Fed. Among the facts "most important" to the Eighth Circuit's conclusion was that the detainee actively resisted at the beginning of the encounter and continued to actively resist the officers' efforts to subdue him. 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. at 308 ). On June 28, 2021, the Supreme Court of the United States (SCOTUS) summarily reversed the Eighth Circuit Court of Appeals and remanded Lombardo v. City of St. Louis, Missouri (Lombardo), instructing the lower court to re-examine its finding that officers acted reasonably when they held Nicholas Gilbert on the ground in the prone position until he died from asphyxiation. Eastern District of Missouri (1 envelope). Interactive police training, programs, and courses you can easily access anywhere. 2001) (police are authorized to stop and detain persons who appear dangerous to themselves or others as part of their "community caretaking" function). ), Although the parties disagree over whether the City provided training or had a policy on the use of force specifically governing Mr. Gilbert's situation, it is undisputed that all of the City's officers, including the Officer Defendants, have been trained on the use of force (also known as "defensive tactics") and receive monthly refresher tests on the use of force through the SLMPD's "PASS" system. A Fourth Amendment seizure requires an intentional act by an officer, and does not address "accidental effects of otherwise lawful government conduct." 86 19. (emphasis added). The officers initially had to use force and multiple tasings to try and gain control of the individual, who was kicking and otherwise resisting at times after being handcuffed but before he was in the prone position. Read in context, its meaning is apparent. Officer Mack also updated Sergeant Bergmann regarding Mr. Gilbert's condition, and Sergeant Bergmann radioed dispatch to upgrade the pending request for EMS to "urgent" on the grounds that Mr. Gilbert "may not be breathing." related portals: Supreme Court of the United States. For the reasons discussed below, the Court finds controlling Eighth Circuit law does not place the question beyond debate and there is not a robust consensus of persuasive authority, as the circuits are split over the outcome in cases with similar facts. After Officer Mack was unable to find a pulse, Officers Mack and Wactor began performing chest compressions on Mr. Gilbert as he lay on his back. See supra n.8. 2010) (cited cases omitted). Summary judgment is appropriate when no genuine issue of material fact exists in the case and the movant is entitled to judgment as a matter of law. (Doc. at 178. (Doc. App'x at 760 (force was objectively reasonable even though officers used restrained detainee in handcuffed, prone position until to the point where she was unresponsive); Abbey v. City of Reno , No. (Doc. Citing Graham and Kingsley, the Court recognized that its excessive force precedent requires that this inquiry includes careful attention to the facts and circumstances of each particular case.. 2007) (when arrestee refused police orders to lie flat on his stomach, twisted, and otherwise continued to resist, finding it was reasonable to apply force against arrestee's neck, use hold maneuver on legs, and use a canine to bite arrestee to bring non-compliant arrestee under control). Dyer v. Blankenship , No. In Alitos view, the 8th Circuit applied the correct legal standard and made a judgment call on a sensitive question. He suggested that 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).. on petition for writ of certiorari to the united states court of appeals for the eighth circuit No. 8th Circuit (1 box). It is undisputed that Officer Stuckey yelled for additional help from other officers to assist with a combative subject. See 956 F.3d, at 1014; Brief for Plaintiffs-Appellants in No. Seventeen minutes elapsed between the application of the hobble device on the arrestee and the arrival of EMS. Plaintiffs contend that Mr. Gilbert's death was the direct result of the use of excessive force (Counts V, VII, IX, XII, XIII, XV, XVI, XVII, and XVIII), a deliberate indifference to his need for medical care (Counts VI, VIII, X, XIV, and XIX), and negligence by Defendants (Count XX). Id. And we'll keep you signed in. As set forth above, it is undisputed that some of the Officers only used the allegedly excessive force before Mr. Gilbert was in the prone position, namely Officers Stuckey, DeGregorio, King, and Sergeant Bergmann. City of Mt. Cookie Declaration Sergeant Bergmann attempted to control Mr. Gilbert by grabbing his right arm, which Mr. Gilbert was flailing and concealing underneath him in an attempt to avoid being handcuffed. (Detached Opinion) Justice Alito, with whom Justice Thomas and Justice Gorsuch join, dissenting. CONTACT US. Emergency medical services personnel were phoned for assistance. 2014). Considering there is no controlling authority in the Eighth Circuit and the circuits are split among and within themselves on cases with similar facts involving the use of force upon a prone individual, the Court finds there is no "robust consensus" such that "every reasonable officer would have understood that what he is doing violates that right" or such that the question is "beyond debate." Jody LOMBARDO, et al. The citys expert likewise agreed that officers should not compress [a subjects] chest because if you compress the chest you can kill somebody. ECF Doc. Plaintiffs also argue in their responses to Defendants' statement of material facts that the Officers "did not stop pushing Mr. Gilbert down until after he stopped breathing." 1692, 143 L.Ed.2d 818 (1999) (recognizing federal circuit split and noting "[i]f judges thus disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy" when finding law was not clearly established); De La Rosa , 852 F.3d at 740 (reiterating there must be a robust consensus); Burton , 370 F.3d at 730 (law not clearly established when no controlling Eighth Circuit authority and circuits are split); Murphy v. Dowd , 975 F.2d 435, 437 (8th Cir. Moreover, for the reasons discussed below, the result does not change for the remaining Officers, Wactor, Mack, Opel, Cognasso, Lemons, and vonNida. (See Doc. This publication is produced to provide general information on the topic presented. Plaintiffs also rely on the expert report of Dr. Diaz in support of their argument, who opined that the restraint included "the weight of the individuals being on him" while Mr. Gilbert was prone and then stated a general proposition that when "weight of the restrainers is applied to the back, a cascade of events occur the most important of which is a mechanical impairment of breathing that leads to asphyxia." , Wagner v. Bay City , 227 F.3d 316, 321 (5th Cir. Id. In this case, Nicholas Gilbert was arrested and booked into an individual cell for non-violent misdemeanors (trespassing, occupying a condemned building, and failing to appear in court for a traffic violation). . ARGUED & SUBMITTED in St. Louis to Judges Steven M. Colloton, Bobby E. Shepherd, Ralph R. Erickson on 01/16/2020 Mr. Patrick R. McPhail for Appellants Ms. Jody Lombardo and Mr. Bryan Gilbert. Finding none, they performed chest compressions and rescue breathing. (Response due October 26, 2020). (Id. The court recognized that it is clearly established "that putting substantial or significant pressure on a suspect's back while that suspect is in a face-down prone position after being subdued and/or incapacitated constitutes excessive force." at 62324. See , e.g. In attempting to subdue the arrestee, an officer pressed a knee into his chest. Stop. Lombardo v. Saint Louis City, 361 F.Supp. Petitioners brought their excessive force claims under both the Fourth and But the per curiam finds it unclear whether the [Court of Appeals] thought the use of a prone restraintno matter the kind, intensity, duration, or surrounding circumstancesis per se constitutional so long as an individual appears to resist officers efforts to subdue him. Ante, at 3. He opined that pulmonary edema exhibited in the autopsy findings (fluid on the lungs) resulted from asphyxiation. However, in Champion, the officer conduct that the Sixth Circuit upheld was specifically the use of pepper spray after the arrestee was handcuffed, hobbled, and under control. 30, 2011) (force objectively reasonable despite conflicting expert testimony regarding whether asphyxia was a cause of death resulting from individual in handcuffs and shackles being restrained in the prone position by officers' body weight). Id. The force used in Mr. Gilbert's case is not comparable to this situation, as there was no evidence in Simpson that the detainee resisted once he was in handcuffs and leg shackles, and he laid silent and motionless for several minutes before being left overnight. SCOTUS made clear that excessive force cases are fact and circumstance specific which require a thorough examination by the lower courts. If legal or other professional advice is required, the services of a professional should be sought. Contacting Justia or any attorney through this site, via web form, email, or otherwise, does not create an attorney-client relationship. Gunter v. Twp. (quoting Mullenix , 136 S.Ct. Bussey-Morice I , 587 Fed. After Mr. Gilbert was moved to the floor, Officer Opel, who had responded to the holdover from the report writing room, relieved Sergeant Bergmann, who told Opel to control Mr. Gilbert's right side so Mr. Gilbert would not bang his head on the concrete. 1983 action brought by plaintiff after the death of her son. Important constitutional questions go unanswered precisely because those questions are yet unanswered. They differ, however, in assertions as to the main cause of death. Ryan held only that the use of force in that case was reasonable based on the totality of th[e] circumstances, including the detainees resistance. v. CITY OF ST. LOUIS, MISSOURI, ET AL. After multiple tasings were unsuccessful and a fifth officer arrived on the scene, the officers went "hands on," restraining his legs and attempting to "pin [him] down" as he fought and struggled against the officers. NOELLE C. COLLINS, UNITED STATES MAGISTRATE JUDGE. While still in the prone position, the officers were able to place a hobble restraint on his legs, and he stopped resisting. at 896. 78 11820. The appellate court does not note the length of time, but the entire encounter appears to have lasted for about ten minutes. After turning him over, the officers noticed the subject was non-responsive and having trouble breathing. The Third Circuit also upheld prone resistance in another case, finding that attaching a resistant suspect's leg restraints to his handcuffs was reasonable because the suspect "repeatedly kicked the officers after his hands were [handcuffed]" and then "continued to kick at the officers even after his legs were tied together." , Cruz v. City of Laramie, 239 F.3d 1183, 118889 (10th Cir. As the Eighth Circuit recently reiterated, "we cannot define clearly established law at a high level of generality. " Ehlers v. City of Rapid City , 846 F.3d 1002, 1012 (8th Cir. The Court held above that the Defendant Officers are entitled to qualified immunity in their individual capacity because there was no clearly established constitutional right. Dr. Turner's autopsy report was provided to the police and was made part of the investigative report. Emergency medical services personnel were phoned for assistance. at 76566. After being restrained, the individual was "placed face down on the ground" and remained prone until "officers observed that [he] was not breathing." Faegre Drinker Biddle & Reath LLP . App'x at 913 ("[I]f case law, in factual terms, has not staked out a bright line, qualified immunity almost always protects the defendant.") Officer Mack relieved Officer DeGregorio. The medical examiner's autopsy listed asphyxia as one cause of death. in opposition filed. 2017), reh'g denied (June 5, 2017), cert. The Court further discusses analyzes these facts and Dr. Diaz's report infra . 2505 ). (See Doc. 1996) (declaring decision that officers' conduct did not violate plaintiff's constitutional right to privacy disposed of related claims against the city); Abbott v. City of Crocker, 30 F.3d 994, 998 (8th Cir. Plaintiffs put forth no evidence to controvert that timeline. This inhibits the development of the law. Rev. at *6. But opting out of some of these cookies may affect your browsing experience. When three officers responded, Gilbert struggled. Id. In Wagner v. Bay City , the court held that the officers' actions were objectively reasonable even though arrestee, who had resisted arrest, stopped breathing and died after officers sprayed him with pepper spray, placed him face down on pavement to handcuff him, placed a shin across his back to hold him down, were positioned "on top of him," and placed him on his stomach in patrol car to transport him to jail even after he had stopped struggling. at 898. at 623. at 1053. 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. (quoting Torgerson v. City of Rochester , 643 F.3d 1031, 1042 (8th Cir. The Supreme Court vacated the judgment and remanded to the Eighth Circuit. 79.) Court Documents. Id. 2727, 73 L.Ed.2d 396 (1982) ). They took him into custody. Concerned about this erratic behavior, and after medical staff determined he needed to be removed from his cell to be assessed, a team of officers went to his cell to remove him. 78 at 33-47.) Because this case was decided by summary judgment, the evidence here recounted is viewed in the light most favorable to the nonmoving party (here, Gilberts parents, the petitioners). 4:07-CV-02105-AGF (E.D. The Third Circuit upheld the use of asphyxiating prone restraint involving a resistant, non-compliant arrestee. Opinions from 2021 :: Justia US Supreme Court Center , Smith , 754 F.3d at 546. Website Disclaimer, English 314-241-2929 Brief amici curiae of Policing Scholars filed. Get free summaries of new Eighth Circuit US Court of Appeals opinions delivered to your inbox! Upon seeing Mr. Gilbert tie an article of clothing around the bars of his cell and to his neck, Officer King stated that Mr. Gilbert appeared to be trying to hang himself. Plaintiff's and defendants' experts disagreed as to the cause of death, with plaintiff's expert citing to injuries noted in the autopsy report and concluding the death was multifactorial. Plaintiffs argue that the Officers "held down" Mr. Gilbert using asphyxiating pressure, including on his back. The following state regulations pages link to this page. at *8. Officer Stuckey proceeded to Mr. Gilbert's cell, and he was followed by Officer DeGregorio and by Sergeant Bergmann, a supervisor who had just entered the holdover and been advised that Mr. Gilbert was attempting to harm himself. Even if the Court were to take judicial notice of Plaintiffs' and Defendants' authority, this would lend further support to the Court's conclusion that there is no robust consensus, as the non-decisional authority is split, too. Summary. De La Rosa , 852 F.3d at 743. ), The City's Police Department is internationally accredited by the Commission on Accreditation for Law Enforcement Agencies, Inc., or "CALEA," an international police accreditation organization, and the SLMPD's policies cross-reference relevant CALEA standards. Id. App'x at 91415 ; Bussey-Morice I , 587 Fed. 1865 ; see also McCoy , 342 F.3d at 848 (reasonableness "must be judged from the viewpoint of a reasonable officer on the scene, irrespective of the officer's underlying intent or motivation.") Gilbert was moved to the prone position, face down, while officers held down his limbs and applied pressure to his back and torso. See , e.g. 78 7074; Doc. Instead, I would again vacate the decision of the Eighth Circuit and remand for that court to resolve the question of qualified immunity without assuming that Gilberts final movements were those of a dangerously noncompliant person posing a threat, rather than of a dying man struggling to breathe while adequately restrained by handcuffs and leg shackles and surrounded by six officers in a secure cell. 86 84.) 77-3 at 34:2535:18; Doc. Mo. More importantly, the intersection between these topics to provide departments evaluation and recommendations to move forward. Attorney Daigles keynote focuses on understanding current trends in legal standards, operational standards, and community concern.

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