Lombardo v. St. Louis

P R E L I M I N A R Y P R I N T
Volume 594 U. S. Part 2
Pages 464–473
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
June 28, 2021
REBECCA A. WOMELDORF
reporter of decisions
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464 OCTOBER
TERM, 2020
Syllabus
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
Nicholas Gilbert was pronounced dead at a hospital after being restrained
in various ways, including in a sustained prone position, by multiple
offcers in his holding cell at the St. Louis Metropolitan Police Depart-
ment. His parents sued, alleging that the offcers had used excessive
force. The District Court granted summary judgment in favor of the
offcers, concluding that they were entitled to qualifed immunity be-
cause they did not violate a constitutional right that was clearly estab-
lished at the time of the incident. The Eighth Circuit affrmed on dif-
ferent grounds, holding that the offcers did not apply unconstitutionally
excessive force against Gilbert.
Held: Because it is unclear in this excessive force case whether the Eighth
Circuit incorrectly thought the use of a prone restraint is per se constitu-
tional so long as an individual appears to resist offcers' efforts to subdue
him, the Eighth Circuit's judgment is vacated, and the case is remanded
to give that court the opportunity in the frst instance to employ the
careful, context-specifc analysis required by this Court's excessive force
precedent. See Graham v. Connor, 490 U. S. 386, 396. Relevant cir-
cumstances include “the relationship between the need for the use of
force and the amount of force used; the extent of the plaintiff 's injury;
any effort made by the offcer to temper or to limit the amount of force;
the severity of the security problem at issue; the threat reasonably per-
ceived by the offcer; and whether the plaintiff was actively resisting.”
Kingsley v. Hendrickson, 576 U. S. 389, 397. Although the Eighth Cir-
cuit 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 indi-
vidual appears to resist offcers' efforts to subdue him. Evidence that
St. Louis instructs its offcers that pressing down on the back of a prone
subject can cause suffocation, when considered alongside the duration of
the restraint and the fact that Gilbert was handcuffed and leg shackled
when restrained, may be pertinent to the relationship between the need
for the use of force and the amount of force used, the security problem
at issue, and the threat—to both Gilbert and others—reasonably per-
ceived by the offcers. Having either failed to analyze such evidence or

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as: 594 U. S. 464 (2021)
465
Per Curiam
characterized it as insignifcant, the Eighth Circuit's opinion could be
read
to treat Gilbert's “ongoing resistance” as controlling as a matter of
law. 956 F. 3d 1009, 1014. The Court expresses no view as to whether
the offcers 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, and instead remands
the case to the Eighth Circuit for its consideration of those questions in
the frst instance.
Certiorari granted; 956 F. 3d 1009, vacated and remanded.
Per Curiam.
On the afternoon of December 8, 2015, St. Louis police
offcers arrested Nicholas Gilbert for trespassing in a con-
demned building and failing to appear in court for a traffc
ticket.
1
Offcers brought him to the St. Louis Metropolitan
Police Department's central station and placed him in a hold-
ing cell. At some point, an offcer 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 offcers
responded and entered Gilbert's cell. One grabbed Gilbert's
wrist to handcuff him, but Gilbert evaded the offcer and
began to struggle. The three offcers 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 offcers and hit-
ting his head on the bench. After Gilbert kicked one of the
offcers in the groin, they called for more help and leg shack-
les. While Gilbert continued to struggle, two offcers shack-
led his legs together. Emergency medical services person-
nel were phoned for assistance.
Several more offcers responded. They relieved two of
the original three offcers, leaving six offcers in the cell with
Gilbert, who was now handcuffed and in leg irons. The off-
1
Because this case was decided by summary judgment, the evidence
here recounted is viewed “ `in the light most favorable' ” to the nonmoving
party (here, Gilbert's parents, the petitioners). Tolan v. Cotton, 572 U. S.
650, 655–656 (2014) (per curiam).
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466 LOMB
ARDO v. ST. LOUIS
Per Curiam
cers moved Gilbert to a prone position, face down on the
foor
. Three offcers held Gilbert's limbs down at the shoul-
ders, 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
offcers 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 eventu-
ally transported Gilbert to the hospital, where he was
pronounced dead.
Gilbert's parents sued, alleging that the offcers had used
excessive force against him. The District Court granted
summary judgment in favor of the offcers, concluding that
they were entitled to qualifed 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 affrmed on different grounds,
holding that the offcers did not apply unconstitutionally ex-
cessive force against Gilbert. 956 F. 3d 1009, 1014 (2020).
In assessing a claim of excessive force, courts ask
“whether the offcers' actions are `objectively reasonable' in
light of the facts and circumstances confronting them.”
Graham v. Connor, 490 U. S. 386, 397 (1989).
2
“A court
( judge or jury) cannot apply this standard mechanically.”
2
Petitioners brought their excessive force claims under both the Fourth
and Fourteenth Amendments. See, e. g., First Amended Complaint in
No. 4:16–cv–01637 (ED Mo.), ECF Doc. 28, p. 46. We need not address
whether the Fourth or Fourteenth Amendment provides the proper basis
for a claim of excessive force against a pretrial detainee in Gilbert's posi-
tion. Whatever the source of law, in analyzing an excessive force claim,
a court must determine whether the force was objectively unreasonable
in light of the “ `facts and circumstances of each particular case.' ”
Kingsley v. Hendrickson, 576 U. S. 389, 397 (2015) (quoting Graham, 490
U. S., at 396).
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as: 594 U. S. 464 (2021)
467
Per Curiam
Kingsley v. Hendrickson, 576 U. S. 389, 397 (2015). Rather,
the
inquiry “requires careful attention to the facts and cir-
cumstances of each particular case.” Graham, 490 U. S., at
396. Those circumstances include “the relationship between
the need for the use of force and the amount of force used;
the extent of the plaintiff 's injury; any effort made by the
offcer to temper or to limit the amount of force; the severity
of the security problem at issue; the threat reasonably per-
ceived by the offcer; and whether the plaintiff was actively
resisting.” Kingsley, 576 U. S., at 397.
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 offcers' efforts to subdue
him. The court cited Circuit precedent for the proposition
that “the use of prone restraint is not objectively unreason-
able when a detainee actively resists offcer directives and
efforts to subdue the detainee.” 956 F. 3d, at 1013. The
court went on to describe as “insignifcant” facts that may
distinguish that precedent and appear potentially important
under Kingsley, including that Gilbert was already hand-
cuffed and leg shackled when offcers moved him to the prone
position and that offcers kept him in that position for 15
minutes. See 956 F. 3d, at 1013–1015.
Such details could matter when deciding whether to grant
summary judgment on an excessive force claim. Here, for
example, record evidence (viewed in the light most favorable
to Gilbert's parents) shows that offcers placed pressure on
Gilbert's back even though St. Louis instructs its offcers
that pressing down on the back of a prone subject can cause
suffocation. The evidentiary record also includes well-
known police guidance recommending that offcers get a sub-
ject off his stomach as soon as he is handcuffed because of
that risk. The guidance further indicates that the struggles
of a prone suspect may be due to oxygen defciency, rather
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468 LOMB
ARDO v. ST. LOUIS
Alito, J., dissenting
than a desire to disobey offcers' commands. Such evidence,
when
considered alongside the duration of the restraint and
the fact that Gilbert was handcuffed and leg shackled at the
time, may be pertinent to the relationship between the need
for the use of force and the amount of force used, the security
problem at issue, and the threat—to both Gilbert and
others—reasonably perceived by the offcers. Having either
failed to analyze such evidence or characterized it as insig-
nifcant, 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-specifc analysis required by this Court's excessive
force precedent.
We express no view as to whether the offcers used uncon-
stitutionally 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
frst instance.
It is so ordered.
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 offcers and the city of St. Louis. The Court of Ap-
peals held that the defendants were entitled to summary
3
While the dissent suggests we should give the Eighth Circuit the bene-
ft of the doubt, in assessing the appropriateness of review in this
factbound context, it is more prudent to afford the Eighth Circuit an op-
portunity to clarify its opinion rather than to speculate as to its basis.

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469
Alito, J., dissenting
judgment because a reasonable jury would necessarily fnd
that
the police offcers 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 ques-
tion. 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 briefng 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 pre-
sented here could be instructive.
The Court, unfortunately, is unwilling to face up to the
choice between denying the petition (and bearing the criti-
cism that would inevitably elicit) and granting plenary re-
view (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 va-
cates 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 stand-
ard for excessive-force claims. The per curiam acknowl-
edges that the Court of Appeals correctly cited the factors
that must be taken into account in determining whether the
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470 LOMB
ARDO v. ST. LOUIS
Alito, J., dissenting
offcers' actions were objectively reasonable. Ante, at 467;
see
956 F. 3d 1009, 1013 (CA8 2020). But the per curiam
fnds it “unclear whether the [Court of Appeals] thought the
use of a prone restraint—no matter the kind, intensity, dura-
tion, or surrounding circumstances—is per se constitutional
so long as an individual appears to resist offcers' efforts to
subdue him.” Ante, at 467.
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 reason-
able 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 offcers with a combined weight of 1,000 pounds
knelt on the back of a frail and infrm detainee, used all their
might to press his chest and face into a concrete foor for
over an hour, did not desist when the detainee cried, “You're
killing me,” and ended up inficting 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 offcer directives and efforts to subdue the
detainee.” 956 F. 3d, at 1013; see ante, at 467. 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

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471
Alito, J., dissenting
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 Appel-
lees 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 rea-
sonable based on “the totality of th[e] circumstances,” includ-
ing 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 proce-
dure 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 `insignif-
cant' facts that may distinguish [Ryan] and appear
potentially important under Kingsley, including that
Gilbert was already handcuffed and leg shackled when
offcers moved him to the prone position and that offcers
kept him in that position for 15 minutes.” Ante, at 467
(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 offcers' use of
force or the fact that Gilbert had been handcuffed and shack-
led were irrelevant but that certain factual differences be-
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ARDO v. ST. LOUIS
Alito, J., dissenting
tween this case and Ryan were not signifcant in the sense
that
they did not call for a different result.
The court used the term “insignifcant” 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 “insignifcant”
were these factual differences between the two cases.*
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 offcers 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 stat-
ure, put up a ferce and prolonged resistance. See 956 F. 3d,
at 1011–1014. On the other hand, the offcers' use of force
*The Eighth Circuit wrote:
“Lombardo argues that Ryan is not on point. Specifcally, Lombardo
argues that, unlike Ryan, in which the detainee was held in prone
restraint for approximately three minutes until he was handcuffed, . . .
Gilbert was held in prone restraint for ffteen minutes and was placed in
this position only after he had been handcuffed and leg-shackled. Lom-
bardo also argues that she presented expert testimony that Gilbert's cause
of death was forcible restraint inducing asphyxia whereas the undisputed
cause of death in Ryan was sudden unexpected death during restraint. . . .
We fnd these differences to be insignifcant. This Court has previously
noted that `[h]andcuffs limit but do not eliminate a person's ability to per-
form harmful acts.' United States v. Pope, 910 F. 3d 413, 417 (8th Cir.
2018), cert. denied, [589 U. S. ––– (2019)]. As discussed above, the undis-
puted facts show that Gilbert continued to violently struggle even after
being handcuffed and leg-shackled. Specifcally, after being handcuffed,
he thrashed his head on the concrete bench, causing him to suffer a gash
on his forehead, and he continued to violently thrash and kick after being
leg-shackled. Because of this ongoing resistance, the Offcers moved Gil-
bert to the prone position so as to minimize the harm he could infict on
himself and others.” 956 F. 3d, at 1014.
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473
Alito, J., dissenting
inficted serious injuries, and the medical evidence on the
cause
of death was conficting. 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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