Supreme Court Rejects “Per Se” Rule For Excessive Force Analysis
This case law update was written by James P. Garay Heelan, an attorney at the law firm of Shaw Bransford & Roth, where he has practiced federal personnel and employment law since 2012. Mr. Heelan represents federal personnel across the Executive Branch, including career senior executives, law enforcement officers, foreign service officers, intelligence officers, and agencies in matters of federal personnel and employment law.
Law enforcement cannot place a resisting person in a prone position regardless of other factors, the Supreme Court held this week. “Such a per se rule would contravene the careful, context-specific analysis” the Court requires.
On December 8, 2015, St. Louis police officers arrested Nicholas Gilbert for misdemeanor offenses and placed him in a holding cell. At some point, an officer saw Gilbert tie a piece of clothing around the bars of his cell and put it around his neck. Three officers responded and attempted to restrain Gilbert, who struggled with the officers.
Officers brought Gilbert to a kneeling position over a bench in the cell and handcuffed his arms behind his back. Gilbert then resisted, kicked the officers, and hit his head. While Gilbert continued to struggle, officers shackled his legs together and called for both back-up and medical assistance.
After more officers arrived in the cell, bringing the total to six, they moved the handcuffed and leg-shackled Gilbert into a prone position, face down on the floor. Three officers held Gilbert’s limbs down at the shoulders, biceps, and legs. At least one other officer placed pressure on Gilbert’s back and torso.
Gilbert tried to raise his chest, saying “It hurts. Stop.” Eventually, after 15 minutes of struggling in the prone position, Gilbert’s breathing became abnormal and he stopped moving. Officers performed chest compressions and rescue breathing on Gilbert, who was eventually transported to a hospital where he was pronounced dead.
Gilbert’s parents sued, alleging that the officers had used excessive force against him. The District Court granted summary judgment in favor of the officers, concluding that they were entitled to qualified immunity. On appeal, the U.S. Court of Appeals for the Eighth Circuit affirmed on different grounds, holding that the officers did not apply unconstitutionally excessive force. The U.S. Supreme Court subsequently granted the plaintiffs’ petition for certiorari and issued its decision on the case this week.
In a 6-3 decision authored without attribution to any single Justice, the Supreme Court criticized the Eighth Circuit’s decision, stating 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 officers’ efforts to subdue him.”
For example, the Supreme Court wrote, the Eighth Circuit decision did not address that officers placed pressure on Gilbert’s back even though St. Louis instructs its officers that pressing down on the back of a prone subject can cause suffocation. Nor did the Eighth Circuit decision address evidence of guidance that officers should get a subject off his stomach as soon as he is handcuffed due to the suffocation risk, and that the struggles of a prone subject may be caused by oxygen deficiency. Such evidence “may be pertinent” to the excessive force analysis.
“Having failed to analyze” relevant evidence, the Eighth Circuit’s decision “could be read to treat Gilbert’s ‘ongoing resistance’ as controlling as a matter of law.” But allowing “ongoing resistance” to permit the kind of force officers used on Gilbert without considering any other factors, the Supreme Court held, “would contravene the careful, context-specific analysis required by this Court’s excessive force precedent.”
The Supreme Court then vacated the Eighth Circuit’s decision and remanded the case for the Court of Appeals to issue a new decision in the case that “clearly attends to the facts and circumstances” of the excessive force analysis.
You can read the full Supreme Court opinion in Lombardo et al. v. City of St. Louis, Missouri, et al.
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