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.
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