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Alito Suggests SCOTUS “Unwilling” To “Bear The Criticism” Of Upholding Use Of Force Eerily Similar To George Floyd

Alito Suggests SCOTUS “Unwilling” To “Bear The Criticism” Of Upholding Use Of Force Eerily Similar To George Floyd

Appeals court ruled no excessive force where arrestee suffocated after being held face down. Rather than deny petition, leaving ruling in place, or taking the case and ruling itself, SCOTUS summarily vacated and remanded. Alito Dissent: “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….”

As part of its Order List today, the U.S. Supreme Court issued a per curiam (in the name of the court) decision (pdf.) in Lombardo v. City of St. Louis not only refusing to hear a police use of force case, but also summarily vacating the 8th Circuit decision in favor of the officers and remanding for further findings.

The case was portrayed in the media as a loss for police. And that it was. But it was much more, as the Dissent by Justice Alito, joined by Justices Thomas and Gorsuch made clear.

The case had eery similarities to the George Floyd case, with the deceased restrained face down with pressure placed on this back. The case was in the courts because family members sued for wrongful death. From the decision, here’s the description (emphasis added):

On the afternoon of December 8, 2015, St. Louis police officers arrested Nicholas Gilbert for trespassing in a condemned building and failing to appear in court for a traffic ticket.1 Officers brought him to the St. Louis Metropolitan Police Department’s central station 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, in an apparent attempt to hang himself. Three officers responded and entered Gilbert’s cell. One grabbed Gilbert’s wrist to handcuff him, but Gilbert evaded the officer and began to struggle. The three officers 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 officers and hitting his head on the bench. After Gilbert kicked one of the officers in the groin, they called for more help and leg shackles. While Gilbert continued to struggle, two officers shackled his legs together. Emergency medical services personnel were phoned for assistance.

Several more officers responded. They relieved two of the original three officers, leaving six officers in the cell with Gilbert, who was now handcuffed and in leg irons. The officers moved Gilbert to 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 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 officers 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.

The officers successfully defended the claims in the lower courts, with the Court of Appeals finding no unconstitutionally excessive force under existing law (emphasis added):

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 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 affirmed on different grounds, holding that the officers did not apply unconstitutionally excessive force against Gilbert. 956 F. 3d 1009, 1014 (2020)

So SCOTUS was faced with taking a case very close to the facts of the George Floyd case where the Court of Appeals found no excessive use of force. This certainly would be a hot case politically, not only with Derek Chauvin’s conviction, but with federal prosecutions of Chauvin and three other officers coming up.

The Supreme Court doesn’t hesitate to take big constroversial cases, but it punted on this one without reaching the substance. It found more record evidence was needed and that the appeals court should not have granted a summary judgment:

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 officers’ efforts to subdue him….

Having either failed to analyze such evidence or characterized it as insignificant, 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-specific analysis required by this Court’s excessive force precedent. 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. 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.

Simple, huh? Alito excoriated his colleagues, accusing them of improperly refusing to hear the case for fear of public reaction. His dissent starts at page 5 of the pdf.)(emphasis added):

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.

Then Alito go to the point, his colleagues were scared to deny the petition to hear the case, which would the normal course on this type of state law issue, which would leave the appeal court ruling of no excessive force in place (emphasis added):

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….

We have two respectable options: deny review of the factbound 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.

Gorsuch didn’t fill the Scalia seat. Alito did.


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John Roberts is a weakling and a coward. Nobody needs to “have something” on him because his lack of character is plain for all to see.

That establishes blacks as sacred objects.

But for Alito and Thomas who would have taken the Texas v. Penn. case back in Dec.2020 re: the stolen election, the other 7 of them are gutless.

That case was in the court’s original jurisdiction, meaning they were bound to hear the case.

Subotai Bahadur | June 28, 2021 at 10:41 pm

Not disagreeing with the deserved insults and contempt earned by all the Supreme Court Justices other than Alito and Thomas, there is another point that is being quietly sorted out. Noting that Democrat/Socialist polities are losing police at a record rate and responding by further cutting funds and positions, there is another dynamic in process.

Officer Chauvin in Minneapolis was convicted multiple times for the same act in a travesty of the law. The other three officers involved awaiting trial can expect the same, and all 4 can expect Federal charges to pile on top of that. In the same city, Somali-American Police Officer Mohammed Noor got one conviction and can expect clemency in the future for deliberately drawing and firing across his partner in the squad car to hit and kill the woman who had called the police and who was not dressed and not carrying a weapon.

In this case at hand, the cops in St. Louis had the 8th Circuit Court find in their favor, and the Supreme Court overturned it without reason and functionally told the 8th Circuit to hear it again and find against the cops. At this point the cost/benefit and risk analyses of cops all over the country should be being re-run. Is it worth risking your life and career [and the futures of your family] protecting “society” when the courts are rigged against you if you do your job? Maybe it is time to leave the field, or at the very least leave Democrat ruled polities for more defensible ones.

Subotai Bahadur

    JusticeDelivered in reply to Subotai Bahadur. | June 28, 2021 at 11:14 pm

    My sympathy lies with the police, let cities rot.

    NavyMustang in reply to Subotai Bahadur. | June 28, 2021 at 11:31 pm

    I’m an ex LEO. No way I’d become a cop now. I have no intention of going to prison for twenty years for doing my job correctly!

    “…losing police at a record rate and responding by further cutting funds and positions, there is another dynamic in process….”

    Next step: replace the police with blm and antifa goons, if not federal police.

      Remember Senator Daschle during the Democrats’ drive to create the TSA? “You can’t professionalize until you federalize!” The goal is a federal police force deployed to each state.

When President Trump reclaims his Presidency, somehow Robert’s must be made to step down

    The Friendly Grizzly in reply to gonzotx. | June 29, 2021 at 6:58 am

    His record with SC Justices is not exactly stellar.

      Gorsuch seems to be drifting into the Thomas-Alito orbit, although that is still iffy. Meanwhile, I’m still waiting for Kavanaugh’s vaunted “textualism” to go to the Constitution instead of just the Chevron Doctrine; and I’m still waiting for Barret to show how she is different from Ginsberg.

      It’s not that Trump didn’t try to nominate good judges who would apply the laws and Constitution in the proper manner, but that like most appointments by most presidents he simply didn’t have the knowledge of who and what the people were who he appointed, or the time to acquire it. He had to depend on the advice of others, and was particularly ill-served by a White House staff and bureaucracy that generally opposed him.

      If he had the same hiring authority he did as a CEO, you would have a point.

      However, when your HR department who has to approve all the candidates is the same one staging the coup against you (and who threatened to file obstruction of justice charges if you fire any of them); when your board who has to confirm them openly threatens to “reach across the aisle” and vote to remove you, he did as well as could be expected, and no one else will EVER be able to do better via “legal” means.

        jb4 in reply to SDN. | June 29, 2021 at 9:01 pm

        I do not agree. Trump picked long time friend, NJ Governor and very astute politician Chris Christie to head his transition team. Christie wanted to be AG. However, CC had put Jared Kushner’s father in prison while he was a Federal prosecutor and, reportedly, Jared got CC dumped. IMO had CC been AG, we would not have had Sessions, Rosenstein, Mueller, Wray and Barr and Trump would still be President.

        Trump’s personnel picks were rather poor across the board and I do not attribute it to the reasons you stated. In particular, he failed to learn the lessons of history demonstrated by JFK, who picked RFK for AG, and Obama who picked Holder.

If the court fears public criticism now, the word is now out that the court can and will be intimidated by the barbarians.

Darkness is falling:

NSA Whistleblower Reveals To Tucker Carlson That Biden Admin Spying On His Communications:

So the mob rules over Roberts.
It’s clear to us all!

Remember the good-ole-days when scumbags got their asses thumped properly?

Novel jurisprudence (e.g. with trials, warlock judgments) will rule on plausible, rather than probably cause(s), when politically congruent (“=”). One step forward, two steps backward. #HateLovesAbortion

Ty Professor…

Who knew that scotus meant supreme cowards of the united states? You look up to a group.. for your whole life.. and then BAM! They turn out to be just another political body…

Alito speaks directly. It’s seems to be the product of examining a case honestly and clearly. In my view, he’s the best of the lot.