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Supreme Court Revives Excessive Use of Force Case Involving Man Who Died in Custody; Conservative Trio of Justices Dissent

Supreme Court Justice Samuel Alito

WASHINGTON, DC – APRIL 23: Associate Justice Samuel Alito sits during a group photo of the Justices at the Supreme Court in Washington, DC on April 23, 2021.

The U.S. Supreme Court has reversed and remanded an Eighth Circuit decision dismissing a family’s complaint about police use of excessive force, remanding the case to the lower court—and sparking yet another sharplyworded dissent from Justice Samuel Alito.

In Lombardo v. City of St. Louis, the parents of a 27-year-old who died in police custody asked the justices to revive a civil rights lawsuit. Parents Jody Lombardo and Bryan Gilbert argued that police used excessive force when six officers kept their late son, Nicholas Gilbert, restrained in the prone position, after he already had been handcuffed and placed in leg irons.

“The Court’s 6-3 opinion is a huge victory not only for our clients, but for police-reform advocates across the country and for the rule of law,” attorney Jonathan Taylor, who represents Lombardo and Gilbert, told Law&Crime in a statement. “As George Floyd‘s death made painfully clear, forcible prone restraint is a highly dangerous police tactic that has killed hundreds of people in the last decade or two and that serves no legitimate purpose. Today’s opinion is an important step toward reining in its use.”

The victory for Taylor’s clients could still prove short-lived: The high court explicitly declined ruling on whether police used excessive force, but most of the court urged a fuller consideration of factors investigating that question.

In 2015, Gilbert was arrested for trespassing and failure to appear in court for a traffic ticket and brought by St. Louis police to a holding cell. An officer saw Gilbert apparently try to hang himself, and multiple officers responded in an effort to subdue him. A protracted struggle ensued, with six officers eventually restraining Gilbert in a prone position, including placing pressure on his chest and torso, after he had been handcuffed and placed in leg irons.

After about 15 minutes “struggling” in this position—during which Gilbert had told the police that “it hurts” and asked the officers to stop—Gilbert’s breathing became abnormal, and officers were unable to find a pulse, according to the court’s summary of events. Gilbert was brought to the hospital, where he was pronounced dead.

Gilbert’s parents sued the city of St. Louis for excessive force. A federal judge granted the city’s request for summary judgment, saying that the officers were entitled to qualified immunity because they didn’t violate a “clearly established” constitutional right at the time of the incident. The Eighth Circuit affirmed on different grounds, holding that the officers did not apply unconstitutionally excessive force against Gilbert.

In Monday’s per curiam decision, the Supreme Court found that the Eighth Circuit did not provide clear analysis of the factors used to determine whether excessive force was used.

“[I]t 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,” the court said.

The court seemed to take issue with the Eighth Circuit’s characterization of certain facts as “insignificant” when considering whether the officers’ actions constituted excessive force.

“The [Eighth Circuit] went on to describe as ‘insignificant’ facts that may appear potentially important […] including that Gilbert was already handcuffed and leg shackled when officers moved him to the prone position and kept him in that position for fifteen minutes,” the court said. “Such details could matter when deciding whether to grant summary judgment on an excessive force claim.”

The Supreme Court held off on deciding whether the St. Louis police actually used excessive force to restrain Gilbert.

“We express no view as to whether the officers 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,” the court wrote. “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 first instance.”

Justice Samuel Alito, in a strongly-worded dissent joined by Justices Clarence Thomas and Neil Gorsuch, disagreed with the court’s reasoning.

“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 officers and the city of St. Louis,” Alito wrote.

In addition to substantively disagreeing with the Court’s opinion, Alito also seemed to take a few digs at his colleagues, implying that they just didn’t want to do the hard work that this case may have required.

“[I]f this Court is unwilling to allow the decision below to stand, the proper course is to grant the petition, receive briefing and argument, and decide the real question that this case presents,” Alito wrote.

“That is the course I would take,” Alito added. “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.”

Alito also seemed to suggest that his fellow Justices didn’t want to face criticism for taking on the substance of the case.

“The court, unfortunately, is willing 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),” Alito wrote. “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,” Alito added. “If we expect the lower courts to respect our decisions, we should not twist their opinions to make our job easier.”

“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,” Alito concluded. “I favor the latter course, but what we should not do is take the easy out that the Court has chosen.”

The per curiam opinion addressed the dissent in a footnote, saying that although “the dissent suggests we should give the Eighth Circuit the benefit 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.”

This case is the second one involving plaintiff Jody Lombardo, the St. Louis police, and the death of a loved one; in 2018, Lombardo settled a lawsuit over the shooting death of her mother, who was killed in a 2014 robbery and shootout at a St. Louis bar popular with police.

The city of St. Louis declined to comment.

Read the Supreme Court’s opinion, below.

[Image via Erin Schaff/Getty Images]

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