SUPREME COURT OF THE UNITED STATES
JODY 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
Justice Alito, with whom Justice Thomas and
Justice Gorsuch join, dissenting.
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. The Court of Appeals held that the
defendants were entitled to summary judgment because a reasonable
jury would necessarily find that the police officers 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 briefing 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 officers’ actions were
objectively reasonable.
Ante, at 3; see 956 F.3d 1009, 1013
(CA8 2020). But the
per curiam finds 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 officers’ efforts to subdue him.”
Ante, at 3.
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 officers with a combined weight of
1,000 pounds knelt on the back of a frail and infirm detainee, used
all their might to press his chest and face into a concrete floor
for over an hour, did not desist when the detainee cried, “You’re
killing me,” and ended up inflicting 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 officer directives and efforts to subdue the
detainee.” 956 F. 3d, at 1013; see
ante, at 3. 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 ‘insignificant’ facts that may distinguish [
Ryan] and
appear potentially important under
Kingsley, including that
Gilbert was already handcuffed and leg shackled when officers moved
him to the prone position and that officers kept him in that
position for 15 minutes.”
Ante, at 3 (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 officers’ use
of force or the fact that Gilbert had been handcuffed and shackled
were irrelevant but that certain factual differences between this
case and
Ryan were not significant in the sense that they
did not call for a different result.
The court used the term “insignificant” 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
“insignificant” were these factual differences between the two
cases.[
1]*
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
officers 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 fierce
and prolonged resistance. See 956 F. 3d, at 1011–1014. On the
other hand, the officers’ use of force inflicted serious injuries,
and the medical evidence on the cause of death was conflicting. 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.
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