Jody Lombardo v. City of St. Louis

United States Court of Appeals

For the Eighth Circuit

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No. 19-1469

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Jody Lombardo; Bryan Gilbert

Plaintiffs - Appellants

v.

City of St. Louis; Ronald Bergmann, Sergeant, individually and in his official

capacity as an officer for the St. Louis City Police Department; Joe Stuckey,

Officer, individually and in his official capacity as an officer for the St. Louis City

Police Department; Paul Wactor, Officer, individually and in his official capacity

as an officer for the St. Louis City Police Department; Michael Cognasso, Officer,

individually and in his official capacity as an officer for the St. Louis City Police

Department; Kyle Mack, Officer, individually and in his official capacity as an

officer for the St. Louis City Police Department; Erich vonNida, Officer,

individually and in his official capacity as an officer for the St. Louis City Police

Department; Bryan Lemons, Officer, individually and in his official capacity as an

officer for the St. Louis City Police Department.; Zachary Opel, Officer,

individually and in his official capacity as an officer for the St. Louis City Police

Department; Jason King, Officer, individually and in his official capacity as an

officer for the St. Louis City Police Department; Ronald Degregorio, Officer,

individually and in his official capacity as an officer for the St. Louis City Police

Department.

Defendants - Appellees

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Appeal from United States District Court

for the Eastern District of Missouri - St. Louis

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Submitted: July 30, 2021

Filed: June 29, 2022

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Before COLLOTON, SHEPHERD, and ERICKSON, Circuit Judges.

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SHEPHERD, Circuit Judge.

This matter comes to us on remand after the Supreme Court vacated our

previous opinion, Lombardo v. City of St. Louis, 956 F.3d 1009 (8th Cir. 2020),

vacated, 141 S. Ct. 2239 (2021) (per curiam), which affirmed the district court’s1

grant of summary judgment in favor of defendants, the City of St. Louis (the City)

and certain St. Louis Metropolitan Police Department (SLMPD) officers, on claims

arising from the death of Nicholas Gilbert while in SLMPD custody. In our previous

opinion, we concluded that the district court properly determined that the officers

were entitled to qualified immunity on claims alleged by Gilbert’s parents, Jody

Lombardo and Bryan Gilbert (together, Lombardo), because the officers did not

apply unconstitutionally excessive force in restraining Gilbert and that, in the

absence of an underlying constitutional violation, the City could not be liable for an

alleged unconstitutional policy or failure to train its officers. The Supreme Court

granted Lombardo’s petition for certiorari, vacated our judgment, and remanded the

case for further consideration. Lombardo v. City of St. Louis, 141 S. Ct. 2239 (2021)

(per curiam).

On remand, the Supreme Court directed us “to employ an inquiry that clearly

attends to the facts and circumstances” of the incident between Gilbert and the

officers in considering “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.” Id. at 2242. We now conclude that

the officers are entitled to qualified immunity because the right in question was not

clearly established at the time of Gilbert’s death and the City is not liable for a policy

1

The Honorable Noelle C. Collins, United States Magistrate Judge for the

Eastern District of Missouri, to whom the case was referred for final disposition by

consent of the parties pursuant to 28 U.S.C. § 636(c).

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of deliberate indifference in the absence of a clearly established constitutional right.

Accordingly, we affirm the judgment of the district court.

I.

As we did in our previous opinion, we recite the facts in the light most

favorable to Lombardo, the non-moving party. Walton v. Dawson, 752 F.3d 1109,

1114 n.1 (8th Cir. 2014). The events giving rise to this action occurred on December

8, 2015, when SLMPD officers arrested Gilbert on suspicion of trespassing and

occupying a condemned building and for failing to appear in court for an outstanding

traffic ticket. After Gilbert’s arrest, officers brought Gilbert to the “holdover” in the

SLMPD central patrol station. The holdover is a secure holding facility where

prisoners are temporarily housed before being transferred to the St. Louis City

Justice Center, the City’s jail facility. The holdover has a booking area, a main

holding cell to house prisoners before they are booked, and a cell block with eight

individual cells to house prisoners once they have been booked. Gilbert was initially

placed in the main holding cell until officers conducted the booking process, during

which time the 5-foot-3-inch, 160-pound Gilbert was cooperative. Notably, during

the booking process, Gilbert checked “no” on a form questioning whether Gilbert

had any medical condition of which officers should be made aware. Once officers

completed the booking process, officers placed Gilbert in one of the individual cells.

After Gilbert was placed in an individual cell, officers in the holdover

observed him beginning to engage in unusual behavior. Gilbert waved his hands in

the air, rattled the bars of his cell, threw his shoe, and bobbed up and down. Officer

Jason King then observed Gilbert tie an article of clothing around the bars of his cell

and his neck, after which Officer King verbalized that Gilbert appeared to be trying

to hang himself. Officers Paul Wactor, Ronald DeGregorio, and Joe Stuckey were

in the holdover at the time of Officer King’s warning; Officer Wactor immediately

left the area to notify a supervisor, while Officer DeGregorio observed Gilbert with

clothing tied around his neck and around the bars of his cell before he, too, tried to

notify a supervisor. Upon hearing Officer King’s warning, Officer Stuckey

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responded to Gilbert’s cell, followed by Officer DeGregorio and Sergeant Ronald

Bergmann, a supervisor who had entered the holdover and was informed that Gilbert

was attempting to harm himself.

When Officer Stuckey reached Gilbert’s cell, he did not observe Gilbert with

any clothing tied around his neck. Nevertheless, based on Officer King’s stated

observation, Officer Stuckey began to handcuff Gilbert. Officer Stuckey was only

able to place a handcuff on Gilbert’s left wrist before Gilbert began struggling. The

struggle continued between Gilbert and Officer Stuckey but grew to include Officer

DeGregorio and Sergeant Bergmann. The officers brought Gilbert to a kneeling

position with his upper body lying across a concrete bench in the cell. Officer

Stuckey, with Sergeant Bergmann’s assistance, then secured the handcuff around

Gilbert’s right wrist. Gilbert did not remain subdued for long: Gilbert tried to stand

up; began thrashing; struck his head on the concrete bench, sustaining a laceration

to his forehead; and kicked his legs, striking Officer Stuckey in the groin area.

Officer Stuckey left the cell, and Sergeant Bergmann called for someone to bring leg

shackles to further restrain Gilbert.

Officers Wactor and King responded to Sergeant Bergmann’s request for leg

shackles; Officer Wactor brought the shackles to Gilbert’s cell, and Officer King

assisted him in placing the shackles on Gilbert’s legs. Sergeant Bergmann also

requested medical assistance, and Officer King left the cell and radioed dispatch to

request emergency medical services (EMS), explicitly mentioning Gilbert’s

“possible psychotic issues.” Officer Stuckey left the holdover and called out for

assistance with a combative subject, after which the holdover alarm, indicating that

an officer is in need of assistance in the holdover, was activated. Officer Stuckey

remained outside of the holdover for several minutes to compose himself and did not

reenter Gilbert’s cell.

Several officers responded to the holdover alarm, including Officer Kyle

Mack, who entered the cell and observed the remaining officers struggling to control

Gilbert. At that time, Gilbert was still positioned over the concrete bench and was

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both handcuffed and shackled. Officer Mack relieved Officer DeGregorio, who was

tiring from the struggle, and took hold of Gilbert’s left arm, attempting to stop

Gilbert from thrashing and hitting his head against the concrete bench. Officer

DeGregorio then left the cell to catch his breath. Officer Mack assisted Officer

Wactor and Sergeant Bergmann in moving Gilbert from the bench to a prone position

on the floor in an attempt to better control Gilbert.

Once Gilbert was in the prone position on the floor, Sergeant Bergmann was

relieved by Officer Zachary Opel, who had entered the cell to assist in controlling

Gilbert. Officer Opel relieved Sergeant Bergmann by taking control of Gilbert’s

right side. Sergeant Bergmann, who was also growing exhausted from the struggle,

exited the cell. Officers Michael Cognasso, Bryan Lemons, and Erich vonNida, who

had also responded to the call for assistance and entered the cell, were also involved

in attempting to bring Gilbert under control. After observing Gilbert thrashing his

body and kicking officers with his shackled legs, Officer Cognasso put his knees on

the back of Gilbert’s calves to prevent Gilbert from further striking the officers.

Officer Lemons similarly placed his knee on one of Gilbert’s legs to prevent him

from kicking, while Officer vonNida held Gilbert’s arm or leg to prevent Gilbert

from continuing to thrash his body. Gilbert continued to resist, and he raised his

chest up off the floor and told officers to stop because they were hurting him.

Throughout the course of the struggle, officers controlled Gilbert’s limbs at

his shoulders, biceps, legs, and lower or middle torso. Officers allegedly applied

pressure to Gilbert’s back despite SLMPD instructions to its officers that pressing

down on the back of a subject in a prone position can cause suffocation and in spite

of well-known police guidance that, as soon as a suspect is handcuffed, officers

should remove him from his stomach. The officers did not respond to Gilbert’s

complaints, nor did they appear to recognize that Gilbert’s struggles could be due to

oxygen deficiency, something well-known police guidance cautions officers to look

for, rather than a continued desire to disobey commands. After 15 minutes of

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struggling while in the prone position, 2 Gilbert stopped resisting, and officers rolled

him from his stomach to his side.

At some point while he was in the prone position, Gilbert stopped breathing.

Officer Lemons later testified that when Gilbert stopped resisting, the officers all

stood up and Officer Lemons first observed that Gilbert was not breathing. Officer

Mack rolled Gilbert from his side to his back and checked Gilbert’s pulse. While

Officer Mack was initially able to locate a pulse, he was eventually unable to find

one. Officer Mack requested that someone retrieve the Automated External

Defibrillator (AED) and updated Sergeant Bergmann about Gilbert’s condition, after

which Sergeant Bergmann radioed dispatch to upgrade the EMS request to “urgent.”

Officer Wactor began performing chest compressions on Gilbert and, along with

Officer Mack, performed rescue breathing. Officers vonNida and Opel returned to

the cell and attempted to revive Gilbert with the AED, but the AED never registered

a shockable heart rhythm. Officers Mack and Wactor continued to perform chest

compressions and rescue breathing until first responders arrived and took over.

Ultimately, an ambulance transported Gilbert to the hospital, where he was

pronounced dead.

2

The district court concluded that it was “not possible to determine from the

record exactly how long Mr. Gilbert was prone,” and that the defendants’ estimate

of fewer than ten minutes was “supported by the undisputed timing of the calls to

EMS and other undisputed facts,” but the court nonetheless assumed a period of

fifteen minutes “for purposes of ruling” on the motion. R. Doc. 92, at 34 & n.18.

Our first opinion assumed a period of fifteen minutes, 956 F.3d at 1012, 1015, and

so did the Supreme Court, 141 S. Ct. at 2240, so we apply that assumption here. We

note, however, that the plaintiffs’ evidence on duration is that the entire “event”

involving Gilbert—including “getting him into restraints” and “several pleas for

EMS”—lasted “fifteen plus minutes.” R. Doc. 67-40, at 25. The record includes

calls to EMS indicating that the prone position began sometime after 6:15 p.m.

(when Gilbert was still positioned over the concrete bench) and ended before 6:27

p.m. (when Gilbert had been placed on his side for some period of time, and an

officer notified EMS that the detainee may not be breathing). R. Doc. 78, ¶¶ 66, 72,

96.

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Post-mortem examination and testing revealed that Gilbert had a large amount

of methamphetamine in his system and significant heart disease. The St. Louis City

Medical Examiner’s autopsy report categorized the manner of death as accidental

and determined that the cause of death was arteriosclerotic heart disease, exacerbated

by methamphetamine and forcible restraint. The autopsy report also noted that

Gilbert had contusions and lacerations on his face and upper and lower extremities,

a small contusion on his left shoulder area, and a fractured sternum. Lombardo

secured a second expert report, which opined that Gilbert’s cause of death was

forcible restraint inducing asphyxia.

Lombardo filed suit under 42 U.S.C. § 1983, asserting 20 claims against

Sergeant Bergmann and Officers Cognasso, DeGregorio, King, Lemons, Mack,

Opel, Stuckey, vonNida, and Wactor (collectively, the officers) and the City. By the

summary judgment stage, the only remaining claims were those alleged against each

officer individually for excessive force and those alleged against the City for an

unconstitutional policy resulting in a violation of Gilbert’s constitutional rights and

a failure to train that amounted to deliberate indifference. The officers and the City

moved for summary judgment on these claims, which the district court granted. The

district court concluded that the officers were entitled to qualified immunity because

Lombardo failed to show that there was a clearly established Fourth Amendment

right to be free from the use of prone restraint in this context at the time the incident

occurred. Further, because the officers were entitled to qualified immunity, the

district court concluded that the City could not be held liable for the unconstitutional-

policy and failure-to-train claims.

II.

Lombardo asserts that the district court erroneously concluded that the

officers were entitled to qualified immunity on the Fourth Amendment excessive

force claim. “We review a district court’s qualified immunity determination on

summary judgment de novo, viewing the record in the light most favorable to [the

non-moving party] and drawing all reasonable inferences in her favor.” Krout v.

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Goemmer, 583 F.3d 557, 564 (8th Cir. 2009) (emphasis omitted). In considering a

claim of qualified immunity, we apply the familiar two-prong inquiry: “(1) whether

the facts shown by the plaintiff make out a violation of a constitutional or statutory

right, and (2) whether that right was clearly established at the time of the defendant’s

alleged misconduct.” Mitchell v. Shearrer, 729 F.3d 1070, 1074 (8th Cir. 2013).

We have the “discretion to decide which of the two prongs of qualified-immunity

analysis to tackle first.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).

Although we decided the initial iteration of this appeal on the grounds that

Lombardo failed to demonstrate a violation of a constitutional right, we now resolve

this appeal by relying on the clearly established prong of the qualified immunity

analysis.3 The Supreme Court has cautioned that “[i]n general, courts should think

hard, and then think hard again” before deciding a constitutional question that need

not be resolved to dispose of a case. Camreta v. Greene, 563 U.S. 692, 707 (2011).

Given the intensive factual nature of this case, and the “longstanding principle of

judicial restraint . . . that courts avoid reaching constitutional questions in advance

of the necessity of deciding them,” we consider only whether the right was clearly

established because it is dispositive to this appeal. Lyng v. Nw. Indian Cemetery

Protective Ass’n, 485 U.S. 439, 445 (1988).

“To be clearly established, a legal principle . . . must be ‘settled law’ . . . [that

is] clear enough that every reasonable official would interpret it to establish the

particular rule the plaintiff seeks to apply.” Hanson as Tr. for Layton v. Best, 915

F.3d 543, 548 (8th Cir. 2019) (alterations in original) (quoting Dist. of Columbia v.

Wesby, 138 S. Ct. 577, 589-90 (2018)). “We do not require a case directly on point,

but existing precedent must have placed the statutory or constitutional question

3

Although we decide this appeal on the clearly established prong, we note that

this Court has never held, nor do we now hold, that “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.” See Lombardo, 141 S. Ct. at 2241. Instead, in each case, we engage in a

fact-intensive inquiry, paying “careful attention to the facts and circumstances of

each particular case.” Graham v. Connor, 490 U.S. 386, 396 (1989).

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beyond debate. Put simply, qualified immunity protects all but the plainly

incompetent or those who knowingly violate the law.” De La Rosa v. White, 852

F.3d 740, 745 (8th Cir. 2017) (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015) (per

curiam)). “Clearly established law is ‘dictated by controlling authority or a robust

consensus of cases of persuasive authority.’” Lane v. Nading, 927 F.3d 1018, 1022

(8th Cir. 2019) (quoting Wesby, 138 S. Ct. at 589-90).

The Supreme Court has never addressed whether prone restraint generally, or

a particular use of prone restraint, more specifically, is unconstitutional. And the

Supreme Court has never answered the question of whether a right may be clearly

established without a Supreme Court case specifically recognizing it. See City of

Escondido v. Emmons, 139 S. Ct. 500, 503 (2019) (per curiam) (“[A]ssuming

without deciding that a court of appeals decision may constitute clearly established

law for purposes of qualified immunity,” and concluding that “the Court of Appeals’

formulation of the clearly established right was far too general”). Thus, assuming,

as the Supreme Court has, that a court of appeals decision may constitute clearly

established law, the precedent in this area is insufficient to demonstrate that the facts

in this case show a violation of a clearly established right of a detainee to be free

from prone restraint while resisting.

Far from being a constitutional question beyond debate, “[t]his court has not

deemed prone restraint unconstitutional in and of itself the few times we have

addressed the issue.” Hanson, 915 F.3d at 548. In Hanson, we confronted a scenario

involving the death of a subject after officers used prone restraint on the resisting

man and attempted to subdue him with knee strikes and by holding down his legs,

lower back, and head. Id. at 546. The officers in Hanson also put a spit mask on the

subject after he began spitting at the officers, and, after he continued to resist while

in prone restraint, one officer pressed the subject’s shoulders to the ground while

another held the subject’s thighs. Id. at 546-47. In concluding that the officers were

entitled to qualified immunity due to the lack of a clearly established right, we stated

that, under the cases in this circuit addressing prone restraint, “there is no clearly

established right against the use of prone restraints for a suspect that has been

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resisting.” Id. at 548. Further, we concluded that “the fact-intensive qualified

immunity analyses in comparable appellate cases have yet to produce a sufficiently

particularized ‘robust consensus’ about prolonged prone restraint.” Id. (citation

omitted); see, e.g, Giannetti v. City of Stillwater, 216 F. App’x 756, 760, 762 (10th

Cir. 2007) (holding that officers’ use of prone restraint against resisting

misdemeanor detainee coupled with an officer’s use of his knee to place pressure on

detainee’s back was objectively reasonable when detainee, who was mentally ill and

obese, was held in prone position for nearly 20 minutes, voiced her distress to no

avail, and ultimately died from the encounter). Our recitation of the law set forth in

Hanson in 2019 remains unchanged. It thus follows that, in this Circuit, the right to

be free from prone restraint when resisting was not clearly established in 2015 when

the incident with Gilbert occurred.

Further, as we recognized in Hanson, there is no robust consensus of

persuasive authority that would render the right clearly established. Decisions from

sister circuits finding specific uses of prone restraint to be a violation of a clearly

established right involve differing factual scenarios, rendering them inapplicable to

the specific right at issue here. For instance, in Weigel v. Broad, the Tenth Circuit

concluded that the use of prone restraint and applied pressure to a subject’s body,

including his back, was an unreasonable use of force and violated clearly established

law. 544 F.3d 1143, 1148, 1152-55 (10th Cir. 2008). But this holding was premised

on the fact that the officers continued to apply pressure to the subject after he was

already subdued and had stopped struggling. Id. at 1152. Similarly, in Champion

v. Outlook Nashville, Inc., the Sixth Circuit held that it is “clearly established that

putting substantial or significant pressure on a suspect’s back while that suspect is

in a face-down prone position after being subdued and/or incapacitated constitutes

excessive force.” 380 F.3d 893, 903 (6th Cir. 2004). There, officers were lying on

the suspect “like how wrestlers do in the ring” while every eyewitness said that they

did not see the suspect struggling. Id. at 897-98. In Drummond v. City of Anaheim,

the Ninth Circuit held that officers were not entitled to qualified immunity because

“kneeling on the back and neck of a compliant detainee, and pressing the weight of

two officers’ bodies on him even after he complained that he was choking and in

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need of air violates clearly established law.” 343 F.3d 1052, 1062 (9th Cir. 2003)

(emphasis added). Each of these cases is distinct because they involve instances

where the subject had ceased resisting while officers were still applying force to a

subject in prone position.

Finally, in Simpson v. Hines, the Fifth Circuit held that the use of force was

excessive and malicious where ten officers simultaneously entered a detainee’s jail

cell after strategizing before entry, one officer put his arm around the detainee’s

neck, and an officer, nicknamed “Beef” due to his large size, sat on the detainee’s

chest. 903 F.2d 400, 401-03 (5th Cir. 1990). Further, once the detainee was in prone

position, he was compliant, begged for help, screamed, was motionless by the time

officers left the cell, and remained in his cell in that position until the next morning

when he was discovered deceased. Id. at 402. Again, Simpson involves a subject

who became compliant once in the prone position, unlike Gilbert, who offered

sustained resistance even in the prone position, and also involves a situation where

officers left the detainee motionless in his cell overnight, in stark contrast to the

officers’ calls here for medical assistance both after Gilbert sustained a laceration to

his head and again immediately after they observed that Gilbert had stopped

breathing. Because these cases all have significant distinctions from the facts at

issue here, they cannot serve as a robust consensus of persuasive authority rendering

the right to be free from prone restraint while resisting clearly established.

Given the foregoing, Gilbert’s right to be free from prone restraint while

engaged in ongoing resistance, even where officers applied force to various parts of

his body, including his back, was not clearly established in 2015 when the incident

with Gilbert occurred. Because the right at issue was not clearly established, the

officers are entitled to qualified immunity. The district court thus did not err in

granting the officers’ motion for summary judgment based on qualified immunity.

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III.

Lombardo also argues that the district court erred in granting summary

judgment to the City on the unconstitutional-policy and failure-to-train claims.

Lombardo alleges that the City’s policy for restraining detainees in holding cells is

facially unconstitutional and caused a violation of Gilbert’s rights and that the City’s

failure to train its officers or enact constitutional policies amounts to deliberate

indifference. We apply a de novo standard of review to a district court’s grant of

summary judgment even where qualified immunity is not involved. See Moyle v.

Anderson, 571 F.3d 814, 817 (8th Cir. 2009). “Where the municipality has not

directly inflicted an injury, however, ‘rigorous standards of culpability and causation

must be applied,’ and a showing of deliberate indifference is required.” Szabla v.

City of Brooklyn Park, 486 F.3d 385, 394 (8th Cir. 2007) (en banc) (citation

omitted). And a deliberate indifference claim fails in “[t]he absence of clearly

established constitutional rights,” so-called “‘clear constitutional guideposts’ for

municipalities in the area.” Id. (citation omitted). “[T]he lack of clarity in the law

precludes a finding that the municipality had an unconstitutional policy at all,

because its policymakers cannot properly be said to have exhibited a policy of

deliberate indifference to constitutional rights that were not clearly established.” Id.

Because we have concluded that the constitutional right at issue here was not clearly

established, Lombardo cannot prevail on her claims against the City. The district

court thus did not err in granting summary judgment to the City.

IV.

For the foregoing reasons, we affirm the judgment of the district court.

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