Petition for Writ of Certiorari — Jody Lombardo, et al., Petitioners v. City of St. Louis, Missouri, et al.

No. ____

IN THE

Supreme Court of the United States

JODY LOMBARDO, ET AL.,

Petitioners,

v.

CITY OF ST. LOUIS, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

JOHN G. SIMON

KEVIN M. CARNIE, JR.

PATRICK R. MCPHAIL

The Simon Law Firm, PC

800 Market Street

Suite 1700

St. Louis, MO 63101

(314) 241-2929

JONATHAN E. TAYLOR

Counsel of Record

Gupta Wessler PLLC

1900 L Street NW

Suite 312

Washington, DC 20036

(202) 888-1741

jon@guptawessler.com

ANDREW W. CALLAHAN

P.O. Box 15159

St. Louis, MO 63110

(618) 791-5501

Counsel for Petitioners

September 17, 2020

-iQUESTION PRESENTED

Whether a reasonable jury could find that officers used

excessive force when they put a handcuffed and shackled

person face-down on the ground and pressed into his back

until he suffocated.

-iiLIST OF PARTIES TO THE PROCEEDINGS

Petitioners Jody Lombardo and Bryan Gilbert were

plaintiffs in the district court and appellants in the court

of appeals.

The following respondents were defendants in the

district court and appellees in the court of appeals: City of

St. Louis; Ronald Bergmann; Joe Stuckey; Paul Wactor;

Michael Cognasso; Kyle Mack; Erich vonNida; Bryan

Lemons; Zachary Opel; Jason King; Ronald DeGregorio.

RELATED PROCEEDINGS

This case arises from the following proceedings:

•

Lombardo, et al. v. St. Louis City, et al., No. 16cv-1637 (E.D. Mo.) (memorandum and order

granting summary judgment, issued February

1, 2019);

•

Lombardo, et al. v. City of St. Louis, et al., No.

19-1469 (8th Cir.) (opinion affirming summary

judgment, issued April 20, 2020).

There are no other proceedings in state or federal trial

or appellate courts, or in this Court, directly related to this

case within the meaning of this Court’s Rule 14.1(b)(iii).

-iiiTABLE OF CONTENTS

Question presented ............................................................... i

List of parties to the proceedings....................................... ii

Related proceedings ............................................................. ii

Table of authorities .............................................................. v

Introduction .......................................................................... 1

Opinions below ...................................................................... 6

Jurisdiction ............................................................................ 6

Constitutional and statutory provisions involved............. 6

Statement .............................................................................. 7

A. Factual background................................................. 7

B. Procedural background ........................................ 15

Reasons for granting the petition .................................... 17

I. The decision below creates a circuit split as

to the constitutionality of suffocating a

prone and handcuffed person by putting

force on their back. ............................................... 17

II. The question presented is frequently

occurring and important, and this case is

an ideal vehicle....................................................... 25

III. The decision below is wrong. ............................... 28

Conclusion ........................................................................... 30

-ivAppendix A Opinion of the United States Court

of Appeals for the Eighth Circuit

(April 20, 2020) ................................... App. 1a

Appendix B Memorandum and Order of the

United States District Court for the

Eastern District of Missouri

(February 1, 2019) ........................... App. 11a

-vTABLE OF AUTHORITIES

Cases

Abdullahi v. City of Madison,

423 F.3d 763 (7th Cir. 2005) ................................ passim

Abston v. City of Merced,

506 F. App’x 650 (9th Cir. 2013) .................................. 23

Ashcroft v. al-Kidd,

563 U.S. 731 (2011) .......................................................... 5

Champion v. Outlook Nashville, Inc.,

380 F.3d 893 (6th Cir. 2004) .............................. 2, 18, 21

County of Los Angeles v. Mendez,

137 S. Ct. 1539 (2017) .................................................... 28

Drummond v. City of Anaheim,

343 F.3d 1052 (9th Cir. 2003) ......................... 1, 3, 23, 26

Estate of Booker v. Gomez,

745 F.3d 405 (10th Cir. 2014) ....................................... 23

Estate of Jones by Jones v. City of

Martinsburg,

961 F.3d 661 (4th Cir. 2020) ........................................... 5

Flythe v. District of Columbia,

791 F.3d 13 (D.C. Cir. 2015) ......................................... 30

Garlick v. County of Kern,

167 F. Supp. 3d 1117 (E.D. Cal. 2016)......................... 24

Goode v. Baggett,

811 F. App’x 227 (5th Cir. 2020) .............................. 2, 25

-viGraham v. Connor,

490 U.S. 386 (1989) ........................................................ 28

Greer v. City of Hayward,

229 F. Supp. 3d 1091 (N.D. Cal. 2017) ........................ 24

Gutierrez v. City of San Antonio,

139 F.3d 441 (5th Cir. 1998). .......................................... 3

Hope v. Peltzer,

536 U.S. 730 (2002) ....................................................... 26

Hopper v. Plummer,

887 F.3d 744 (6th Cir. 2018) ............................... 1, 19, 20

Howe v. Town of North Andover,

854 F. Supp. 2d 131 (D. Mass. 2012) ............................. 8

Kingsley v. Hendrickson,

576 U.S. 389 (2015) .............................................. 5, 28, 29

Krecham v. County of Riverside,

723 F.3d 1104 (9th Cir. 2013) ....................................... 23

Kulpa v. Cantea,

708 F. App’x 846 (6th Cir. 2017) ............................ 21, 29

Lugar v. Edmondson Oil Co., Inc.,

457 U.S. 922 (1982) ....................................................... 26

Martin v. City of Broadview Heights,

712 F.3d 951 (6th Cir. 2013) ..................................... 2, 21

McCue v. City of Bangor,

838 F.3d 55 (1st Cir. 2016) ........................................ 1, 24

Plumhoff v. Rickard,

572 U.S. 765 (2014) ........................................................ 28

-viiRichman v. Sheahan,

512 F.3d 876 (7th Cir. 2008) ........................................... 9

Salazar-Limon v. City of Houston,

137 S. Ct. 1277 (2017) ...................................................... 5

Timpa v. Dillard,

2020 WL 3798875 (N.D. Tex. July 6, 2020) ............ 3, 17

Tolan v. Cotton,

572 U.S. 650 (2014) .......................................................... 5

Tucker v. Las Vegas Metropolitan Police

Department,

470 F. App’x 627 (9th Cir. 2012) ............................ 23, 24

Weigel v. Broad,

544 F.3d 1143 (10th Cir. 2008) ............................ passim

Constitutional Provisions

U.S. Constitution Amendment IV ....................................... 6

U.S. Constitution Amendment XIV § 1 .............................. 6

Statutes and Regulations

18 U.S.C. § 242 ..................................................................... 26

42 U.S.C. § 1983 ..................................................................... 6

Other Authorities

Scottie Andrews, The ‘knee-to-neck’ move

used to restrain George Floyd isn’t

encouraged by most police, CNN, May 28,

2020.................................................................................... 7

-viiiAl Baker & J. David Goodman, The Evolution

of William Bratton, in 5 Videos, N.Y.

Times, July 25, 2016 ........................................................ 9

Mike Baker, Jennifer Valentino-DeVries,

Manny Fernandez, & Michael LaForgia,

Three Words. 70 Cases. The Tragic

History of ‘I Can’t Breathe.’, N.Y. Times,

June 29, 2020 .............................................................. 9, 12

Lawrence E. Heiskell, How to Prevent

Positional Asphyxia, POLICE Magazine,

Sept. 9, 2019 ..................................................................... 9

Tony Messenger, St. Louis case of prone

restraint jail death could affect outcome of

George Floyd civil action, St. Louis PostDispatch (June 4, 2020) ................................................... 3

Police Use of Force Project,

http://useofforceproject.org/#analysis ....................... 10

Seth W. Stoughton, Jeffrey J. Noble, &

Geoffrey P. Alpert, Evaluating Police

Uses of Force (2020) ........................................................ 7

Katie Wedell, Cara Kelly, Camille McManus,

& Christine Fernando, George Floyd is

not alone. ‘I can’t breathe’ uttered by

dozens in fatal police holds across U.S.,

USA Today, June 13, 2020 .................................. passim

-1INTRODUCTION

Few legal issues have so quickly captured the attention

of so many as the one presented here: If police officers put

a handcuffed person face-down on the ground and push

into him until he suffocates, is that excessive force?

The Eighth Circuit held that the answer in this case is

no, and that no reasonable juror could disagree. It held

that there was no constitutional violation at all when six

officers pressed their collective weight into the body and

back of a man who was handcuffed and shackled in a facedown position while having a mental-health crisis inside of

a secure holding cell—for 15 minutes, until he died. In

reaching that conclusion, the court held that both the

amount and duration of force that officers applied to his

back are “insignificant” to the excessive-force question—

even if that force caused his death—because his “attempt

to breathe” constituted “ongoing resistance,” justifying

any amount of continued asphyxiating force. App. 8a–9a.

The Eighth Circuit’s holding contradicts the holdings

of every other circuit to address the same issue. See, e.g.,

Hopper v. Plummer, 887 F.3d 744 (6th Cir. 2018), cert.

denied, 139 S. Ct. 567 (2019); McCue v. City of Bangor, 838

F.3d 55 (1st Cir. 2016); Abdullahi v. City of Madison, 423

F.3d 763 (7th Cir. 2005); Drummond v. City of Anaheim,

343 F.3d 1052 (9th Cir. 2003), cert. denied, 124 S. Ct. 2871

(2004). In those circuits, “the law [is] clearly established

that applying pressure to [a face-down person’s] back,

once he [has been] handcuffed and his legs restrained, [is]

constitutionally unreasonable due to the significant risk of

positional asphyxiation associated with such actions.”

Weigel v. Broad, 544 F.3d 1143, 1155 (10th Cir. 2008), cert.

denied, 129 S. Ct. 2387 (2009). Or put conversely: “No

reasonable officer would continue to put pressure on [an]

arrestee’s back after the arrestee was subdued by

-2handcuffs, an ankle restraint, and a police officer holding

the arrestee’s legs.” Champion v. Outlook Nashville, Inc.,

380 F.3d 893, 905 (6th Cir. 2004), cert. denied, 125 S. Ct.

1837 (2005). The decision below holds exactly the opposite.

The decision also diverges from other circuits by

holding that (1) a struggle to breathe justifies the very

conduct causing the inability to breathe in the first place,

and (2) an expert opinion on the cause of death may be

disregarded when the decedent struggled for air or had

used a drug. Other circuits do not resolve these questions

at summary judgment. Instead, they recognize that, when

officers cause someone to suffocate, a jury may draw “an

inference” that the person’s efforts to lift his chest were

“an attempt to gasp for air and escape the compressive

weight of the officers on top of him.” Martin v. City of

Broadview Heights, 712 F.3d 951, 959 (6th Cir. 2013); see

also Abdullahi, 423 F.3d at 771. In a case decided the same

week as the decision below, the Fifth Circuit described the

rule like so: When a handcuffed person was “pinned down

by multiple officers and appeared to be struggling to

breathe, a jury could find that he was ‘merely trying to get

into a position where he could breathe and was not

resisting arrest.’” Goode v. Baggett, 811 F. App’x 227, 232

(5th Cir. 2020). The court explained that allowing the issue

of excessive force to go to the jury, particularly when there

is also a “battle of the experts,” coheres with the decisions

of all of “our sister circuits.” Id. at 235 n.8. No longer.

The Eighth Circuit’s contrary holding—and the split

that it creates—is already making a mark. In another case

involving a prone-restraint death, a district court granted

the officers qualified immunity because “there is a circuit

split on the constitutionality of prone restraints” that

“became apparent with the Eighth Circuit’s decision in

Lombardo,” which contradicts “cases from the First,

-3Sixth, Seventh, Ninth, and Tenth Circuits.” Timpa v.

Dillard, 2020 WL 3798875, *9-10 (N.D. Tex. July 6, 2020).

This split is intolerable. If left in place, it could vastly

expand the scope of qualified immunity in prone-restraint

cases, while also hindering the ability of the Department

of Justice to criminally prosecute officers in such cases.

The Eighth Circuit’s decision will govern any case in that

circuit involving the death of a handcuffed person pressed

to the ground—including, potentially, any case concerning

the death of George Floyd, who was killed by Minneapolis

police in May. See Messenger, St. Louis case of prone

restraint jail death could affect outcome of George Floyd

civil action, St. Louis Post-Dispatch (June 4, 2020),

https://perma.cc/KL3J-UJ8P/. The decision has already

been deployed by one officer charged in Floyd’s killing,

who is using it to argue that Floyd’s constitutional rights

were not violated—because the court below “interpreted”

an attempt to breathe “‘as ongoing resistance.’”

Certiorari is also warranted because this fact pattern

“appears with unfortunate frequency in the reported

decisions of the federal courts,” and “with even greater

frequency on the street.” Drummond, 343 F.3d at 1063.

Yet it hasn’t been directly addressed by this Court.

“Although guns represent the paradigmatic example of

‘deadly force,’ [Tennessee v. Garner, 471 U.S. 1 (1985)]

failed to address whether other police tools and

instruments can also be characterized as ‘deadly force.’

Lower courts since have struggled with [that question],”

including in some cases involving “restraint in a prone

position.” Gutierrez v. City of San Antonio, 139 F.3d 441,

446 (5th Cir. 1998). This lack of guidance has prompted

disagreement in cases far closer than this one. See, e.g.,

Weigel, 544 F.3d at 1169, 1176 (O’Brien, J., dissenting)

(“[C]aselaw from other circuits [is] conflicting” and

-4“provide[s] no coherent guidance” when one officer

applied three minutes of force to restrain man who

reached for gun); Abdullahi, 423 F.3d at 776 (Evans, J.,

dissenting) (30–45 seconds of force to back by one officer).

Police, too, need guidance. As 21 states told this Court

in urging review in 2009: “[P]olice agencies are interested

. . . particularly in the reasonableness of police control

techniques that pose a risk of positional asphyxia” because

“officers need to know whether and to what extent” such

force is permissible. Br. of Indiana, et al., in Broad v.

Weigel, No. 08-1128, at 3. They argued that—with respect

to qualified immunity (an issue not presented here)—the

“[c]ircuits [were] in disarray over whether and to what

extent police control techniques resulting in positional

asphyxia violated clearly established” rights. Id. at 3–4.

The decision below, and the events that have followed,

make painfully clear that this Court’s intervention is now

necessary. As the states put it in 2009: “The Court has

never addressed a positional asphyxia case, but given the

unfortunate volume of such cases and the disparate views

lower courts have of them, it needs to do so.” Id. at 4.

In the decade since, “[a]t least 134 people have died in

police custody from ‘asphyxia/restraint.’” Wedell, Kelly,

McManus, & Fernando, George Floyd is not alone. ‘I can’t

breathe’ uttered by dozens in fatal police holds across

U.S., USA Today, June 13, 2020, https://perma.cc/K2ZGYYVF. Most of these deaths occurred in cases sharing

features with this one: an unarmed man, suffering from

“mental illness” or influenced by “drugs or alcohol,”

pressed face-down on the ground after being handcuffed,

and held there until he died. Id. The decision below will

only make this worse. It not only refuses to allow a jury to

take into account these well-known risk factors in

assessing reasonableness, but it actually turns them on

-5their head—using them as a perverse legal justification

for engaging in the precise conduct that is so dangerous.

This case presents a perfect opportunity for this Court

to send a message: “This has to stop.” Estate of Jones by

Jones v. City of Martinsburg, 961 F.3d 661, 673 (4th Cir.

2020). There is now a square split, and this case provides

an unusually clean vehicle. The Eighth Circuit’s decision

is based solely on its constitutional holding, so there is no

qualified-immunity obstacle encumbering review. And the

decision is plainly wrong. The amount of force used, and

for how long, are not “insignificant” to the constitutional

question; they are its essence. The case also involves an

egregious use of force: The officers knew that the man was

having a mental-health crisis and posed no threat to them,

and yet they put 1300 pounds on top of him—much of it

specifically on his back—for 15 minutes as “he attempted

to lift his body up” for air and said: “It hurts. Stop.”

When this Court’s cases speak of “resist[ance],” this is

not what they mean. Kingsley v. Hendrickson, 576 U.S.

389, 397 (2015). The officers’ actions violated longstanding

DOJ guidelines and are banned in states like Ohio. A

reasonable jury could easily find them to be excessive.

The Eighth Circuit’s holding to the contrary may even

be a candidate for summary reversal. See Tolan v. Cotton,

572 U.S. 650 (2014). In recent years, some members of this

Court have remarked on what they see as an “asymmetry”

in summary reversals in excessive-force cases. SalazarLimon v. City of Houston, 137 S. Ct. 1277, 1283 (2017)

(Sotomayor, J., dissenting from denial of cert.). This case

may allow the Court to address any such asymmetry—and

to make clear that its cases reflect concern not only for the

“breathing room” of police officers in their encounters

with civilians, Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011),

but also for the other way around.

-6OPINIONS BELOW

The Eighth Circuit’s decision is reported at 956 F.3d

1009 and reproduced at 1a. The district court’s decision is

reported at 361 F. Supp. 3d 882 and reproduced at 11a.

JURISDICTION

The court of appeals entered judgment on April 20,

2020. This Court has jurisdiction under 28 U.S.C. § 1254.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourth Amendment provides, in relevant part:

“The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated.” U.S. Const.

amend. IV.

The Fourteenth Amendment provides, in relevant

part: “No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.” U.S. Const. amend. XIV, § 1.

Section 1983 provides: “Every person who, under color

of any statute, ordinance, regulation, custom, or usage, of

any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit in equity,

or other proper proceeding for redress.” 42 U.S.C. § 1983.

-7STATEMENT

A.

Factual background

The dangers of prone restraint: the “vicious cycle”

of compression and struggling for air. Police have known

for decades that “keeping suspects in the prone position,

meaning they lie face-down with their hands cuffed behind

their backs, for an extended period of time” is a

“dangerous position,” “because it’s known to cause what’s

called positional asphyxia.” Andrews, The ‘knee-to-neck’

move used to restrain George Floyd isn’t encouraged by

most police, CNN, May 28, 2020, https://perma.cc/A68YYGRG. “Someone in that position can draw enough breath

to gasp or speak in spurts, but they can’t breathe fully, so

they gradually lose oxygen and fall unconscious.” Id.

This risk of death is exacerbated when police also put

pressure on the person’s back, which can make it even

harder to breathe and cause compression asphyxia. The

longer a person is restrained in a prone position, and the

greater the force applied to their back, the more likely it

is that they will suffocate. For this reason, “[o]fficers must

be attuned to the amount and duration of any weight they

place on [a prone] subject[’s]” back. Stoughton, Noble, &

Alpert, Evaluating Police Uses of Force 203 (2020).

This is a well-documented danger. Over 25 years ago,

the DOJ’s National Institute of Justice conducted an

“analysis of in-custody deaths, [and] discovered evidence

that unexplained in-custody deaths are caused more often

than is generally known” by asphyxia. JA1930. The

agency issued a bulletin to “alert officers to those factors

found frequently in deaths involving positional asphyxia,”

to enable them “to respond in a way that will ensure the

subject’s safety and minimize risk of death.” Id.

-8The DOJ bulletin explained that drug use is a “major

risk factor because respiratory drive is reduced.” It also

explained that “frenzied behavior” or a “violent struggle”

can further “increase a subject’s susceptibility to sudden

death.” Id.; see also Wedell, Kelly, McManus & Fernando,

George Floyd is not alone (“Studies dating back decades

have shown that mental illness and drug intoxication

increase the risk of death by ‘positional asphyxia’ if placed

face down with the hands cuffed behind the back.”).

In addition, the DOJ bulletin described the “vicious

cycle of suspect resistance and officer restraint:

• A suspect is restrained in a face-down position,

and breathing may become labored.

• Weight is applied to the person’s back—the

more weight, the more severe the degree of

compression.

• The individual experiences increased difficulty

breathing.

• The natural reaction to oxygen deficiency

occurs—the person struggles more violently.

• The officer applies more compression to subdue

the individual.”

JA1930–31; see Howe v. Town of N. Andover, 854 F. Supp.

2d 131, 139–40 (D. Mass. 2012) (same).

1995 DOJ bulletin to police: “As soon as the suspect

is handcuffed, get him off his stomach”—“do not sit on

his back.” The DOJ bulletin gave specific guidelines to

avoid this cycle of death. It told law enforcement that

“officers should learn to recognize factors contributing to

positional asphyxia,” and issued a clear directive: “As soon

as the suspect is handcuffed, get him off his stomach.”

JA1931. The bulletin used guidelines adopted by the New

York City Police Department as a model:

-9•

“As soon as the subject is handcuffed, get him

off his stomach. Turn him on his side or place

him in a seated position.

• If he continues to struggle, do not sit on his

back. Hold his legs down or wrap his legs with

a strap.”

JA1932 (emphasis in original); see Baker & Goodman, The

Evolution of William Bratton, in 5 Videos, N.Y. Times,

July 25, 2016, https://perma.cc/L8HZ-XC26 (training

video on policy); Weigel, 544 F.3d at 1150 (discussing video

and same policy of Wyoming police).

After the DOJ bulletin, police departments warn

officers of the danger of “facedown compression holds.”

Twenty-five years later, the dangers of prone restraint are

now “well known in the law enforcement community.”

JA1783. Because of DOJ’s bulletin, “[d]epartments across

the United States have for years warned officers about the

risks of moves such as facedown compression holds.”

Baker, Valentino-DeVries, Fernandez, & LaForgia, Three

Words. 70 Cases. The Tragic History of ‘I Can’t Breathe.’,

N.Y. Times, June 29, 2020, https://perma.cc/HMJ2-V2JJ.

“To alleviate potential dangers, [many] officers are

told now to promptly get detainees off their stomachs and

onto their sides—or up to a sitting or standing position.”

Id.; see Heiskell, How to Prevent Positional Asphyxia,

POLICE Magazine, Sept. 9, 2019, https://perma.cc/7N7QCQRQ (“Many [officers] are now taught to avoid

restraining people face-down or to do so only for a very

short period of time.”). Moreover, because the dangers of

asphyxiation are made worse “by compressing the lungs,

which the weight of several persons on one’s back can do,”

most “police are [also] warned not to sit on the back of a

person they are trying to restrain.” Richman v. Sheahan,

512 F.3d 876, 880 (7th Cir. 2008). That is true “even if the

-10subject is continuing to struggle” after being handcuffed.

See Wedell, Kelly, McManus & Fernando, George Floyd

is not alone (describing Kansas City, Kansas police useof-force policy, which “says any pressure on the torso and

abdomen must be removed and the person rolled onto the

side ‘as soon as the subject is restrained and it is safe to

do so, even if the subject is continuing to struggle’”).

Some agencies have gone further, “banning officers

from placing people in the face-down position” after

handcuffing them. Id. In 2009, for example, Ohio outlawed

prone restraint across all state agencies. JA1935. It did so

because “[a]ccepted research has shown that there is a

risk of death when restraining an individual in a prone

position,” and “[t]his research has led other states to

prohibit this restraint technique.” JA1970.

St. Louis City’s awareness of the problem. St. Louis,

which has one of the nation’s highest rates of police

killings, see http://useofforceproject.org/#analysis, is not

one of those jurisdictions. It has not prohibited the use of

prone restraint or pressing down on the back of someone

held in that position. But its representative testified that

the City, like other jurisdictions, “has known about the

dangers of compression asphyxia for a long time.” JA1783;

see JA1808 (City expert: “A lot of these protocols were put

in place” after DOJ bulletin “telling officers about the

dangers of compression asphyxia.”). The City knows that

“it’s dangerous to hold a citizen in the prone position for

an extended period of time,” and that “a citizen could be

killed if too much weight is put on his back.” JA1782; see

also JA1809–10 (City expert: You “do not compress the

chest . . . because if you compress the chest you can kill

somebody,” and “you don’t hold them on the ground in a

prone position handcuffed for an indefinite period of

-11time,” but must “get them on their side as soon as you can”

because “it’s dangerous if you don’t.”).

The City’s representative further testified that,

because it’s important that officers “receive training about

positional asphyxia” and “compression asphyxia,” the City

tries to “teach officers that it can be dangerous to hold

someone in a prone position,” and they “can’t just leave

somebody on their stomach cuffed.” JA1774–79. Officers

also “receive training on how to deal with emotionally

disturbed persons.” JA1777. But the quality and

consistency of any training varies. There is “no official

block on” asphyxia, and it is “not delineated within the

training manual.” JA1777–78. Some officers cover it in

their training; others don’t. Id.

Years after the DOJ bulletin, the problem of incustody asphyxia persists. Despite increased awareness

of the dangers, many officers continue to put handcuffed

subjects into a prone position and push down on their

backs. And many people continue to die as a result. One

report concluded that “[a]t least 134 people have died in

police custody from ‘asphyxia/restraint’ in the past decade

alone”—a figure that “is likely an undercount.” Wedell,

Kelly, McManus & Fernando, George Floyd is not alone.

An examination of some of these incidents “show[ed] that

officers in agencies big and small use restraint tactics that

heighten people’s risk of death,” including “pressing or

laying on a person’s back to keep them face down.” Id. The

victims were often “stopped for minor infractions,” or

“because they were acting erratically due to drugs or

mental illness.” Id. “Most of those killed suffered from

underlying health conditions [or] mental illness or were

under the influence of drugs or alcohol—factors that could

have heightened their distress and complicated their

ability to understand or comply with police orders.” Id.

-12A separate analysis found the same. “Most frequently,

officers pushed [the decedent] face down on the ground

and held them prone with their body weight.” Baker,

Valentino-DeVries, Fernandez, LaForgia, Three Words.

70 Cases. Nearly half the time, “the people who died after

being restrained . . . were already at risk as a result of

drug intoxication. Others were having a mental health

episode or medical issues.” Id. Further, “[a]utopsies have

repeatedly identified links between the actions of officers

and the deaths of detainees who struggled for air, even

when other medical issues such as heart disease and drug

use were contributing or primary factors.” Id.

According to experts, these “deaths continue to occur”

in “large part because of a lack of training” and a lack of

accountability. See Wedell, Kelly, McManus & Fernando,

George Floyd is not alone. “In virtually every case, the

officers involved faced little repercussion.” Id.

Nicholas Gilbert dies of asphyxiation at the hands

of St. Louis City police. This case fits the pattern. In late

2015, a 27-year-old homeless man named Nicholas Gilbert

was arrested on non-violent misdemeanors (trespassing,

occupying a condemned building, and failing to appear in

court for a traffic violation). App. 15a. Police brought him

to a “secure holding facility” for booking and locked him

in an individual cell. Id.

There was no video of what came next, and Gilbert

would not live to tell his side of the story, but officers said

that, at some point, Gilbert began to act strangely. Officer

Joe Stuckey testified that he noticed that Gilbert was

“exhibiting signs of impaired mental function,” suggesting

that he “could have mental issues,” “be highly agitated,”

or “on [a] chemical substance.” App. 16a. Officer Stuckey

said that he saw Gilbert “tying an article of clothing

around the bars of his cell and putting it around his neck.”

-13Id. But rather than untying the item, taking it away, and

calling EMS, Officer Stuckey took a more confrontational

approach. He unlocked the cell and went inside, followed

by Officer Roland DeGregorio and Sergeant Ronald

Bergmann. Id. At that point, “Gilbert did not have any

clothing tied to his neck,” App. 17a—Officer DeGregorio

said that it was “still tied to the door of the cell,” JA1739—

and Gilbert “just had his hands up.” App. 18a.

A detainee in a nearby cell, however, testified that the

real reason the officers went into Gilbert’s cell was “to

make him be quiet.” JA1725. They “told him to shut up,”

and he “wouldn’t shut up.” Id. Even though Gilbert had

said “no threatening stuff,” the officers were “aggravated”

and “wanted him to be quiet.” JA1726. The witness saw

Officer Stuckey with “his chest poked out, and he was

putting his gloves on” before he “rushed in” and “tried to

make [Gilbert] be quiet.” JA1727. The witness then heard

“rumbling,” and saw “like five, six, seven other police

officers run through that same door.” JA1728.

Officer Stuckey testified that he opened the cell to put

Gilbert in handcuffs, and Gilbert tried “to avoid being

handcuffed.” App. 18a. Officer Stuckey and his two fellow

officers said that they were able to get Gilbert handcuffed

behind his back, but they claimed that Gilbert then bashed

his own head against a concrete bench and kicked Stuckey.

Id. Two other officers came into the cell and applied legshackles to Gilbert, and Sergeant Bergmann requested

EMS. App. 19a. One officer who applied the shackles left

to radio EMS about “possible psychotic issues.” App. 20a.

Stuckey also left.

Shortly thereafter, Officer DeGregorio and Sergeant

Bergmann had become so “winded” and “exhausted” from

applying force to Gilbert (“who was five feet three inches

tall and weighed 160 pounds”) that they “stepped out” to

-14catch their breath. App. 15a, 20a–21a. They were relieved

by five officers—for a total of six officers inside the cell.

By the time those officers arrived, Gilbert had been moved

to a prone position on the ground and had been handcuffed

behind his back and shackled at the legs. App. 20a–21a.

These six officers—who together weighed more than

1300 pounds—spent the next 15 minutes pressing their

weight into Gilbert’s body. They kept doing so even as “he

attempted to lift his body up” for air and said: “It hurts.

Stop.” App. 36a. Officer Michael Cognasso testified that,

as he was holding Gilbert’s legs, multiple other officers

applied pressure to Gilbert’s “upper right side” and the

“lower or middle part of his torso.” App. 5a. Officer

Cognasso admitted that, once Gilbert was “shackled and

handcuffed [], he couldn’t harm anyone at that point.”

JA1795. Nor was Cagnasso the only officer holding down

Gilbert’s legs. Officer Bryan Lemons, who was a foot taller

than Gilbert and had 100 pounds on him, testified that he

too was holding down Gilbert’s legs, making it impossible

for Gilbert to kick anyone, and that Gilbert “stopped

struggling . . . when we got him handcuffed and secured.”

JA275–80.

After 15 minutes of six officers pushing into “various

parts of [Gilbert’s] body,” including his back, App. 5a,

Gilbert succumbed to the pressure and stopped breathing.

The officers finally let up, and a short time later EMS

arrived. But it was too late. Gilbert had died. An autopsy

revealed that he had a “fractured sternum” and contusions

and abrasions on his shoulders and upper body. App. 24a.

A medical report said that the “cause of death was forcible

restraint inducing asphyxia,” while methamphetamine

and heart disease were “underlying factors.” App. 5a, 38a.

Afterward, the City admitted that deadly force was not

authorized because Gilbert was handcuffed and face-down

-15in a cell, and that the only possible government interest in

using any force on Gilbert was his own “self-preservation.”

JA1762–71. No officer involved in the incident, however,

identified any reason why they applied force specifically

to his back, let alone why such force had to be applied for

15 minutes. Nor was any officer disciplined. App. 24a.

B.

Procedural background

Gilbert’s parents sued both the City and the officers,

alleging (among other things) violations of the Fourth and

Fourteenth Amendments. Jurisdiction was based on 28

U.S.C. § 1331. After the case was pared down to excessiveforce claims against the officers and Monell claims against

the City, the defendants sought summary judgment.

The district court’s decision. The district court

granted summary judgment as to all claims. App. 73a. In

doing so, the court accepted the following facts as true:

• Gilbert “was having a mental health crisis and

posed no threat,” App. 32a;

• He was handcuffed and leg-shackled, and was then

held on the ground of a secure holding cell “in the

prone position for fifteen minutes,” App. 50a, 60a;

• While on the ground, his “actions were innocent”

and “based on ‘air hunger,’” App. 34a;

• He “was not ignoring commands or being violent,”

id.;

• “Officers used force upon his back,” App. 60a, as

well as his “sides,” “torso,” and “other parts of his

body,” App. 39a;

• He “was ‘yelling pleas for help’ and pleading ‘It

hurts. Stop.’” App. 36a;

• He “remained restrained and in a prone position

until he stopped breathing,” App. 42a;

-16•

Six officers “did not stop using force until after

they realized Mr. Gilbert had stopped breathing,”

App. 53a;

• “[T]he cause of death was asphyxiation.” App. 39a.

The district court did “not reach the issue of whether

[these] facts demonstrate that the Defendant Officers’

conduct was objectively reasonable” and thus “violated a

constitutional right.” App. 71a. Instead, the court held

that a violation was not “clearly established” on such facts,

so the officers were entitled to qualified immunity. Id.

The court relied on a 2-1 Eighth Circuit decision from

2017 (after the conduct here occurred) holding that “the

simultaneous placing of body weight by multiple officers

on a restrained, prone individual inside of a small jail cell

which results in death does not amount to excessive force.”

App. 48a. But as the court acknowledged, id., a video in

that case showed that force was applied for just a few

minutes (with most of it coming during an intense struggle

to apply handcuffs). So the district court looked beyond

the Eighth Circuit. In doing so, it did not identify any

precedent indicating that the conduct here was lawful.

Rather, it cited six unpublished decisions, plus two Fifth

Circuit cases granting qualified immunity. Based on these

decisions, the court concluded that “the circuits are split

among and within themselves on cases with similar facts

involving the use of force upon a prone individual.” App.

69a. It thus granted qualified immunity.

The court then addressed the Monell claims. It

concluded that, because the officers are immune, “the City

cannot be held liable.” App. 73a.

The Eighth Circuit’s decision. The Eighth Circuit

affirmed, but not on qualified-immunity grounds. It held

that no reasonable jury could find that the officers used

-17excessive force and dismissed the claims against both the

officers and the City on that basis alone.

In its decision, the Eighth Circuit did not take issue

with any of the facts accepted as true by the district court,

but concluded that those facts do not amount to excessive

force as a matter of law. It held that the amount of time

that officers held down Gilbert after he was handcuffed

and shackled (15 minutes) is “insignificant” to the

excessive-force question, as is his cause of death. App 8a.

The same was true of the amount of force used (the weight

of six officers) and the fact that “officers put weight on

various parts of [Gilbert’s] body, including [his] upper”

and “middle” back. App. 5a. The court held that any

amount of asphyxiating force was justified because Gilbert

first resisted being handcuffed, because his “attempt to

breathe” and “to tell the Officers that they were hurting

him” was “ongoing resistance,” and because he had

“methamphetamine in his system.” App. 9a.

Having held that “the Officers did not violate Gilbert’s

constitutional rights,” the court then held that “the City

cannot be held liable under § 1983” as result. App. 10a.

REASONS FOR GRANTING THE PETITION

I.

The decision below creates a circuit split as to the

constitutionality of suffocating a prone and

handcuffed person by putting force on their back.

As courts have recognized, there is now a “circuit split”

between “the Eighth Circuit’s decision in Lombardo” and

“cases from the First, Sixth, Seventh, Ninth, and Tenth

Circuits.” Timpa, 2020 WL 3798875, at *9. In contrast to

the court below, those five circuits recognize that “[n]o

reasonable officer would continue to put pressure on [an]

arrestee’s back after the arrestee was subdued by

handcuffs, an ankle restraint, and a police officer holding

-18the arrestee’s legs.” Champion, 380 F.3d at 905. The law

in those circuits is thus “clearly established that applying

pressure to [a prone person’s] back, once he [has been]

handcuffed and his legs restrained, [is] constitutionally

unreasonable due to the significant risk of positional

asphyxiation associated with such actions.” Weigel, 544

F.3d at 1155.

Seventh Circuit. Start with the Seventh Circuit. In

2005, it considered a case involving a man (Mohamed) also

in a mental-health crisis. Abdullahi, 423 F.3d 763. Unlike

Gilbert, he even posed a threat: He “stagger[ed] across

three lanes of traffic” and “punched [a person] in the face”

who tried to help. Id. at 765. He began “whipping his belt”

when officers arrived. Id. Three officers “took him to the

ground, onto his stomach,” to handcuff him. Id. “Once on

the ground, Mohamed began kicking his legs, moving his

arms so they could not be handcuffed and arching his back

upwards as if he were trying to escape.” Id.

As the other officers were holding Mohamed’s legs,

one officer “placed his right knee and shin on the back of

Mohamed’s shoulder area and applied his weight to keep

Mohamed from squirming or flailing.” Id. The officer

“took his weight off Mohamed after the handcuffing was

complete.” Id. The officer’s “knee and shin were on the

back of Mohamed’s shoulder for approximately 30–45

seconds.” Id. Multiple civilian eyewitnesses “testified that

Mohamed acted aggressively and that the defendant

police officers did not hit, strike or choke Mohamed.” Id.

at 767. Two minutes later, Mohamed died.

The Seventh Circuit analyzed the reasonableness of

“kneeling on Mohamed’s back/ shoulder area after he was

already lying prone with his hands behind him.” Id. at 768.

It noted that the officer “knelt on Mohamed’s shoulder or

back for 30–40 seconds while Mohamed was prone on the

-19ground,” Mohamed then died, and “[n]o one contends that

deadly force was justified once Mohamed was lying prone

on the ground with his arms behind him.” Id. at 769.

“Based on these straightforward facts alone,” the Seventh

Circuit held that “there is an issue of material fact as to

whether [the officer] used an unreasonable amount of

force.” Id.

It elaborated: “The reasonableness of kneeling on a

prone individual’s back during an arrest turns, at least in

part, on how much force is applied. Kneeling with just

enough force to prevent an individual from ‘squirming’ or

escaping might be eminently reasonable, while dropping

down on an individual or applying one’s full weight

(particularly if one is heavy) could actually cause death.”

Id. at 771. Given the evidence of Mohamed’s cause of

death—which could not be “discount[ed]” at summary

judgment—the court noted that Mohamed’s “attempts to

‘squirm’ or arch his back upward while he was being

restrained may not constitute resistance at all, but rather

a futile attempt to breathe while suffering from

physiological distress ‘akin to drowning.’” Id. at 771–73.

The Eighth Circuit’s decision below unquestionably

conflicts with Abdullahi. If a single officer applying force

to the back of a combative, not-yet-handcuffed suspect for

a half-minute along the roadside may rise to the level of

excessive force, the same result would have to be true

here. Had Gilbert died across the river in East St. Louis,

therefore, this case would have come out the other way.

Sixth Circuit. The same goes for the Sixth Circuit. Its

most recent decision, Hopper v. Plummer, 887 F.3d 744,

is the most analogous. There, a man “suffered a seizure

two days after he was booked” into jail for failing to appear

at a hearing. Id. at 745. Officers went into his cell and

forced him to the ground because they were “afraid he

-20would . . . hurt himself.” Id. at 749. Video evidence showed

that they “cuffed him behind his back” and a half-dozen

officers then “restrained him face down on the floor” until

he “died after a twenty-two minute struggle.” Id.

The Sixth Circuit held that a jury could find not only

that the officers used excessive force, but also that they

were not entitled to qualified immunity. The court relied

primarily on its 2004 decision in Champion, which

“considered an excessive-force claim brought by the

family of a severely autistic man who died after several

arresting officers restrained him, prone on the ground and

handcuffed behind his back, for seventeen minutes.” Id. at

754. Champion “explained that ‘[c]reating asphyxiating

conditions by putting substantial or significant pressure,

such as body weight, on the back of an incapacitated and

bound suspect constitutes objectively unreasonable

excessive force.’” Id. (quoting Champion, 380 F.3d at 903).

That was true even though the suspect “arguably posed a

threat” because he “had created a disturbance in a store

and ‘kick[ed] violently’ while on the ground.” Id. at 755

(quoting Champion, 380 F.3d at 897). In Hopper, by

contrast, there was “no dispute that [the decedent] was

suffering a medical emergency, or that while he may have

kicked and thrashed, defendants did not consider him a

threat to anyone after he was handcuffed.” Id.

The Sixth Circuit in Hopper thus concluded that “‘the

prohibition against placing weight on [his] body after he

was handcuffed was clearly established in the Sixth

Circuit.” Id. at 754 (quoting Martin, 712 F.3d at 962).

Because it was clearly “‘unconstitutional,’ on May 19, 2012,

to create asphyxiating conditions by ‘forcibly restraining

an individual in a prone position for a prolonged period of

time’ when that individual posed no material threat,”

qualified immunity was improper. Id. at 756.

-21Other cases in the Sixth Circuit hold likewise. See, e.g.,

Martin, 712 F.3d at 960–61 (“The prohibition against

placing weight on Martin’s body after he was handcuffed

was clearly established in the Sixth Circuit,” especially

because he was “unarmed, minimally threatening, and

mentally unstable.”); Kulpa v. Cantea, 708 F. App’x 846,

851–53 (6th Cir. 2017) (holding same where officers

handcuffed detainee having mental-health episode, placed

him face-down, and put weight on his back for under 45

seconds after he’d been “squirming,” causing him to die).

The Sixth Circuit’s rule is thus clear: “[P]utting

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”—particularly when the officers knew that he was

“mentally ill” or under the influence of drugs (which “must

be taken into account”). Champion, 380 F.3d at 903–04.

And that is so even if he was “moving . . . in an attempt to

breathe.” Id. at 905; see also Martin, 712 F.3d at 959

(holding that jury may infer that a person’s “physical

movements” and “active[] struggle[]” “were an attempt to

gasp for air”). “No reasonable officer would continue to

put pressure on that arrestee’s back after the arrestee was

subdued by handcuffs, an ankle restraint, and a police

officer holding the arrestee’s legs.” Champion, 380 F.3d

at 905. Yet that is exactly what happened in this case.

Tenth Circuit. The Tenth Circuit has the same rule.

In 2008, it decided a case not unlike Abdullahi—involving

a dangerous roadside encounter where one officer applied

force to a combative suspect. The suspect (Weigel) “fought

vigorously, attempting repeatedly to take the troopers’

weapons and evade handcuffing.” Weigel, 544 F.3d at

1148. After he was finally handcuffed, Weigel “continued

to struggle.” Id. at 1158 (O’Brien, J., dissenting). “With

-22Weigel positioned on his stomach, his hands and feet

restrained, [one officer then] held down Weigel’s upper

body with his hands and/or knees, [another officer]

straddled Weigel’s buttocks and [a civilian] was on his

legs. In spite of those restraints Weigel still managed to

pinch [one officer’s] thighs and groin area” and “continued

to struggle and fight.” Id. He was held in that position for

up to three minutes, and then died. Id. at 1152.

The Tenth Circuit denied summary judgment to the

officers. It based its conclusion on two things: “First, there

is evidence a reasonable officer would have known that the

pressure placed on Mr. Weigel’s upper back as he lay on

his stomach created a significant risk of asphyxiation and

death. His apparent intoxication, bizarre behavior, and

vigorous struggle made him a strong candidate for

positional asphyxiation.” Id. “Second, there is evidence

that Mr. Weigel was subjected to such pressure for a

significant period after it was clear that the pressure was

unnecessary to restrain him. The defendants make no

claim that once Mr. Weigel was handcuffed and his legs

were bound, he still would pose a threat to the officers, the

public, or himself unless he was maintained on his stomach

with pressure imposed on his upper back.” Id.

The court also denied qualified immunity. It explained

that, “even after it was readily apparent for a significant

period of time (several minutes) that Mr. Weigel was fully

restrained and posed no danger, the defendants continued

to use pressure on [his] upper torso while he was lying on

his stomach. A reasonable officer would know these

actions present a substantial and totally unnecessary risk

of death.” Id. at 1154. The court held that it “was clearly

established that applying pressure to Mr. Weigel’s upper

back, once he was handcuffed and his legs restrained, was

constitutionally unreasonable,” and observed that “cases

-23from other circuits” agree. Id. at 1155; see also id. (Hartz,

J., concurring).

Judge O’Brien dissented, expressing disagreement

with the Sixth Circuit’s holding in Champion that “briefly

applying pressure to the torso of a resisting but restrained

individual is unconstitutional.” Id. at 1174. But after

Weigel, that is now the Tenth Circuit’s rule too. See Estate

of Booker v. Gomez, 745 F.3d 405, 424–29 (10th Cir. 2014).

Ninth Circuit. Ditto for the Ninth Circuit. In 2003, it

observed that, “in what has come to be known as

‘compression asphyxia,’ prone and handcuffed individuals

in an agitated state have suffocated under the weight of

restraining officers.” Drummond, 343 F.3d at 1056–57.

The court held that a jury could find that force was

excessive when “two officers continued to press their

weight on [a detainee’s] neck and torso as he lay

handcuffed on the ground and begged for air.” Id. at 1056.

The Ninth Circuit has held firm to this view ever since.

See Krecham v. County of Riverside, 723 F.3d 1104, 1108

(9th Cir. 2013) (reversing judgment for four officers who

restrained unarmed delusional man in prone position and

put weight on his back while “he was repeatedly kicking”);

Abston v. City of Merced, 506 F. App’x 650, 652 (9th Cir.

2013) (“A [jury] could conclude that defendants’ use of

body compression as a means of restraint was

unreasonable and unjustified by any threat of harm or

escape when Abston was handcuffed and shackled, in a

prone position, and surrounded by numerous officers.”);

Tucker v. Las Vegas Metro. Police Dep’t, 470 F. App’x 627,

629 (9th Cir. 2012) (“[E]xisting law recognized a Fourth

Amendment violation where two officers use their body

pressure to restrain a delirious, prone, and handcuffed

individual who poses no serious safety threat.”).

-24The Ninth Circuit’s cases therefore “make[] plain that

multiple officers’ use of prolonged body-weight pressure

to a suspect’s back is known to be capable of causing

serious injury or death,” particularly when the person is

having a mental-health crisis. Garlick v. County of Kern,

167 F. Supp. 3d 1117, 1155 (E.D. Cal. 2016); see also Greer

v. City of Hayward, 229 F. Supp. 3d 1091, 1104, 1107 (N.D.

Cal. 2017). Moreover, whether a suspect was continuing to

resist or instead struggling to breathe, and how an officer

should have reacted, are questions for the factfinder. See

Tucker, 470 F. App’x at 629 (“Keith, unlike Drummond,

continued to resist the officers after handcuffs were

applied, but this distinction does not, by itself, suffice to

bring this case out of Drummond’s orbit.”); Garlick, 167

F. Supp. 3d at 1156–57; Greer, 229 F. Supp. 3d at 1105.

First Circuit. The First Circuit is in accord. In 2016,

it confronted a case much like this one: Five officers had

“attempted to restrain” someone “who initially resisted,”

so they put him “in a face-down, prone position for [up to

four minutes] while two officers exerted weight on his

back and shoulders.” McCue, 838 F.3d at 56. He “was

declared dead shortly after,” and an expert “attributed the

likely cause of death to prolonged restraint in the prone

position ‘under the weight of multiple officers, in the face

of a hypermetabolic state of excited delirium.’” Id.

The First Circuit held that “it was clearly established”

that “exerting significant, continued force on a person’s

back ‘while [he] is in a face-down prone position after

being subdued and/or incapacitated constitutes excessive

force,’” for “[a]t least four circuits had announced this

constitutional rule.” Id. at 64 (quoting Weigel, 544 F.3d at

1155). “[A]s the abundant case law demonstrates, a jury

could find that a reasonable officer would know or should

-25have known about the dangers of exerting significant

pressure on the back of a prone person.” Id. at 65.

Fifth Circuit. Finally, the same week that the Eighth

Circuit issued the decision below, the Fifth Circuit denied

qualified immunity in a similar case. Goode, 811 F. App’x

227. It concluded that summary judgment was improper

because the decedent had been arrested for “nonviolent

misdemeanors”; was unarmed; “was already handcuffed

and subdued”; and was of “small size, particularly in

comparison to that of the five Officers” who restrained

him. Id. at 232. Moreover, although the “Officers claim[ed]

that [he] was kicking and trying to roll over” while they

were restraining him, given the fact that he “was pinned

down by multiple officers and appeared to be struggling

to breathe, a jury could find that he was ‘merely trying to

get into a position where he could breathe and was not

resisting arrest.’” Id. The court cited an earlier decision

holding that restraining someone “in a state of druginduced psychosis and placing him face down in a prone

position for an extended period constitutes excessive

force”—a rule that “comports with the decisions of our

sister circuits that have considered the reasonableness of

using similar restraints on nonthreatening, minimally

resistant individuals showing signs of drug use or mental

disability.” Id. at 235 n.8 (citing Gutierrez, 139 F.3d 441).

The decision below upends this consensus, creating a

circuit split that only this Court can resolve.

II. The question presented is frequently occurring

and important, and this case is an ideal vehicle.

A. The split should be resolved for four reasons.

First, “[t]he compression asphyxia that resulted [here]

appears with unfortunate frequency in the reported

decisions of the federal courts,” and “with even greater

-26frequency on the street.” Drummond, 343 F.3d at 1063.

That has never been more apparent than now. Within days

of the decision below, a similar fact pattern appeared in

Goode. A month later, it showed up again when police in

Minneapolis—having just been given a green light by

their home circuit—held down a handcuffed George Floyd

for nearly nine minutes. A month after that, while many

people were still in the streets expressing outrage at

Floyd’s death, Timpa provided a fresh reminder of the

disturbing frequency with which these incidents recur.

Second, because the decision below adopts a clear

constitutional holding, it has the potential to dramatically

expand the scope of qualified immunity for officers who

apply deadly force to the backs of handcuffed suspects. As

Timpa shows, it is already having that effect.

Third, by shrinking the scope of the constitutional

right to be free from excessive force, the decision below

will also sharply curtail DOJ’s ability to criminally

prosecute prone-restraint cases under 18 U.S.C. § 242, the

“criminal counterpart” of section 1983. Lugar v.

Edmondson Oil Co., Inc., 457 U.S. 922, 929 n.13 (1982); see

Hope v. Peltzer, 536 U.S. 730, 739–40 (2002).

This is not a hypothetical concern. The decision has

already been invoked by one officer charged by state

prosecutors in Floyd’s killing, who is using it to argue that

Floyd’s constitutional rights were not violated. The officer

contends that Gilbert’s “claim of unreasonable restraint

was rejected by the Eighth Circuit, just as Mr. Floyd’s

should be here . . . The fact that Mr. Gilbert announced to

the jailors that they were hurting him (read ‘I can’t

breathe’) was interpreted ‘as ongoing resistance’ [by the

Eighth Circuit]. Mr. Gilbert’s ‘expert testimony that the

use of prone restraint was the principal cause of Gilbert’s

death is less significant in light of Gilbert’s ongoing

-27resistance, his extensive heart disease, and the large

quantity of methamphetamine in his system.’ Mr. Floyd’s

profile, not coincidentally.” Reply in Minnesota v. Lane,

No. 27-CR-20-12951 (4th Dist. Minn. Aug. 17, 2020)

(citations omitted), https://perma.cc/W269-NA53. If that

argument were accepted, it could also hamper any

attempt by DOJ to prosecute the officers responsible for

Floyd’s death.

Fourth, the decision cements a legal regime in which

officers in St. Louis and Kansas City, Missouri, operate

under radically different rules than their counterparts in

East St. Louis (where Abdullahi governs) and Kansas

City, Kansas (where Weigel governs). Just as bad, officers

in places like New York, Philadelphia, Baltimore, and the

District of Columbia are now left to wonder on which side

of the divide their circuits will fall—and hence which legal

rule will govern their conduct.

This uncertainty is unacceptable. This is an area of the

law where guidance to lower courts and law enforcement

is especially important. Even before the decision below, in

closer cases discussed earlier, judges disagreed about the

results, with one judge lamenting what he saw as a lack of

“coherent guidance.” Weigel, 544 F.3d at 1169 (O’Brien, J.,

dissenting); see also Abdullahi, 423 F.3d at 776 (Evans, J.,

dissenting). Twenty-one states urged this Court to grant

certiorari in that case. As they put it: “The Court has

never addressed a positional asphyxia case, but given the

unfortunate volume of such cases and the disparate views

lower courts have of them, it needs to do so.” Br. of

Indiana, in Broad, at 4. This Court did not grant certiorari

there, perhaps because there was no split then, or because

the decision was correct. But the circumstances here are

different. And the need for guidance is as great as ever.

-28B. This case is a perfect vehicle to address the question

presented and bring uniformity and clarity to the law. The

constitutional issue is cleanly teed up. It isn’t encumbered

by a qualified-immunity holding, and the issue also served

as the basis for dismissing the Monell claims. And, as the

case comes to this Court, the most important facts are all

assumed, having been taken as true by the district court.

This case also bears all the characteristics of a typical

prone-restraint death by asphyxiation. So answering the

question “will be ‘beneficial’ in ‘develop[ing] constitutional

precedent’ in an area that courts typically consider in

cases in which the defendant asserts a qualified immunity

defense.” Plumhoff v. Rickard, 572 U.S. 765, 774 (2014).

Yet the case is also an egregious example of excessive

force: Gilbert was in a secure facility, officers knew he was

having a mental-health crisis, and lethal force was not

authorized because he presented no threat. JA1762.

III. The decision below is wrong.

This leads to the last reason to grant certiorari: The

Eighth Circuit’s decision is outlandishly wrong. It distorts

and misapplies this Court’s objective-unreasonableness

test for excessive force, and it reaches the wrong result.

Any excessive-force inquiry “requires analyzing the

totality of the circumstances,” Plumhoff, 572 U.S. at 774,

and weighing the “nature and quality” of the intrusion on

the person’s constitutional right against the governmental

interests “alleged to justify the intrusion.” County of Los

Angeles v. Mendez, 137 S. Ct. 1539, 1546 (2017). The test

is one of objective reasonableness, and “[a] court (judge or

jury) cannot apply this standard mechanically.” Kingsley,

576 U.S. at 397. It must give “careful attention to the facts

and circumstances of each particular case,” Graham v.

Connor, 490 U.S. 386, 396 (1989), and consider “the

relationship between the need for the use of force and the

-29amount of force used; the extent of the plaintiff’s injury;

any effort made by the officer to temper or to limit the

amount of force; the severity of the security problem at

issue; the threat reasonably perceived by the officer; and

whether the plaintiff was actively resisting.” Kingsley, 576

U.S. at 397.

The Eighth Circuit did not apply this test. It not only

refused to consider the first four factors, but it treated

these factors—including the duration and “amount of

force” applied to Gilbert’s back, and “the extent of [his]

injury,” id.—as “insignificant.” App. 8a. The court deemed

it similarly irrelevant that Gilbert posed no threat to the

officers, had committed no serious crime, and was in a

secure facility. All that mattered, according to the Eighth

Circuit, is that he had initially struggled with the officers

and then moved his body in “an attempt to breathe” once

six officers were on top of him. App. 9a. In its view, these

facts alone justified any amount of continued asphyxiating

force, for any length of time—and all the more so because

the officers knew he was having a mental-health crisis. Id.

Every aspect of this analysis is wrong. For one thing,

the amount of force applied, where it is applied, and for

how long it is applied are paramount to the excessive-force

question—not “irrelevant.” Pushing down on the back of a

prone, restrained person for even 45 seconds can be fatal,

and every minute on top of that only increases the risk of

death. See Abdullahi, 423 F.3d at 765 (30–45 seconds);

Kulpa, 708 F. App’x at 851–53 (45 seconds).

For another thing, the Eighth Circuit’s decision treats

force and resistance as binary questions, rather than as

questions existing along a continuum. The question is not

whether any force was justified here; it’s whether six

officers could use deadly force on the back of a five-footthree-inch, 160-pound man for 15 minutes while he was

-30handcuffed and face-down on the ground. That question

answers itself.1

Worse still, the decision distorts the excessive-force

inquiry in a way that creates the wrong incentives. It takes

what is supposed to be a totality-of-the-circumstances test

for a jury and turns it into a one-factor test for a judge: If

a person was initially showing any resistance—no matter

the circumstances—anything goes. Should he lift his chest

in “an attempt to breathe” or “tell the Officers that they

were hurting him,” that is “continued resistance”

justifying more force, App. 9a—inviting the “vicious cycle”

that DOJ has warned against. Should he be having a

mental-health episode or appear to have used a drug, that

is not a reason to ease up, but a license to push down. No

governmental interest remotely justifies such conduct,

and certainly not as a matter of law.

CONCLUSION

The petition for certiorari should be granted.

1

The Eighth Circuit further erred in stating that “the undisputed

facts show that Gilbert continued to violently struggle even after

being handcuffed and leg-shackled,” and that “Officers held Gilbert in

the prone position only until he stopped actively fighting against his

restraints.” App. 8a–9a. The district court took “as true” that Gilbert

“was not ignoring commands or being violent,” App. 34a, and that

officers “did not stop using force until after” he “stopped breathing.”

App. 53a. In any event, the only evidence to the contrary comes from

the defendants’ own mouths. And “[e]very circuit” recognizes that a

court “may not simply accept what may be a self-serving account by

the police officer[s]” when “the witness most likely to contradict

[their] story—the person [they killed]—is unable to testify.” Flythe v.

District of Columbia, 791 F.3d 13, 20 (D.C. Cir. 2015) (citing cases).

-31Respectfully submitted,

JONATHAN E. TAYLOR

Counsel of Record

Gupta Wessler PLLC

1900 L Street NW, Suite 312

Washington, DC 20036

(202) 888-1741

jon@guptawessler.com

JOHN G. SIMON

KEVIN M. CARNIE, JR.

PATRICK R. MCPHAIL

The Simon Law Firm, PC

800 Market Street, Suite 1700

St. Louis, MO 63101

(314) 241-2929

ANDREW W. CALLAHAN

P.O. Box 15159

St. Louis, MO 63110

(618) 791-5501

September 17, 2020

Counsel for Petitioners