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

APPENDIX

APPENDIX

TABLE OF CONTENTS

Appendix 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

-App. 1a-

APPENDIX A

United States Court of Appeals,

Eighth Circuit

No. 19-1469

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

-App. 2ahis 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.

Submitted: January 16, 2020

Filed: April 20, 2020

Appeals from the United States District Court for the

Eastern District of Missouri – St. Louis

Before: COLLOTON, SHEPHERD, and ERICKSON,

Circuit Judges.

SHEPHERD, Circuit Judge.

Jody Lombardo and Bryan Gilbert (together,

Lombardo) brought an action under 42 U.S.C. § 1983

against the City of St. Louis (the City) and ten St. Louis

Metropolitan Police Department (SLMPD) officers, in

their individual capacities, arising from physical contact

between the officers and Lombardo’s son, Nicholas

Gilbert, that Lombardo alleges resulted in Gilbert’s death.

Lombardo alleges that the officers used excessive force

during the incident, which caused Gilbert’s death, and that

the City is liable for the officers’ actions due to an

unconstitutional policy and a failure to train its officers.

The magistrate judge1 granted summary judgment in

1

The Honorable Noelle C. Collins, United States Magistrate

Judge for the Eastern District of Missouri, to whom the case was

-App. 3afavor of the officers and the City, and Lombardo appeals.

Having jurisdiction under 28 U.S.C. § 1291, we affirm.

I.

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). On December 8, 2015,

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.

Arresting officers brought Gilbert to the “holdover,” a

secure holding facility within the SLMPD’s central patrol

station, and placed him in an individual cell. Gilbert was

cooperative throughout the booking process and checked

“no” to a question asking whether he had a medical

condition of which the officers should be aware. While

Gilbert was in the cell, the officers observed him engaging

in unusual behavior, including waving his hands in the air,

rattling the bars of his cell, throwing his shoe, and bobbing

up and down. Officer Jason King then observed Gilbert tie

an article of clothing around the bars of his cell and his

neck. Officer King stated out loud that Gilbert appeared

to be trying to hang himself. After overhearing Officer

King’s statement, Officer Joe Stuckey entered Gilbert’s

cell but found Gilbert without any clothing tied to his neck.

Officer Stuckey cuffed Gilbert’s left wrist but before he

could cuff Gilbert’s right wrist, Gilbert began to struggle

with Officer Stuckey as well as Officer Ronald DeGregorio

and Sergeant Ronald Bergmann, who had entered the cell

after Officer Stuckey. The officers brought Gilbert to a

kneeling position over a concrete bench inside the cell and

cuffed his right wrist. Gilbert began to struggle again and

referred for final disposition by consent of the parties pursuant to 28

U.S.C. § 636(c).

-App. 4athrashed his head on the concrete bench, causing a gash

on his forehead. Gilbert also kicked Officer Stuckey, after

which Officer Stuckey left the cell and Sergeant

Bergmann called for someone to bring in leg shackles.

Officer Paul Wactor brought the leg shackles to

Gilbert’s cell and assisted Officer King in shackling

Gilbert’s legs. Pursuant to a request made by Sergeant

Bergmann, Officer King left the cell and radioed the

dispatcher to request emergency medical services. Officer

Stuckey left the holdover and yelled into the hallway,

requesting assistance with a combative subject. The

holdover alarm was also activated, which broadcasted that

an officer was in need of assistance in the holdover. Officer

Kyle Mack, one of the officers who responded to the alarm,

entered the cell to find the officers struggling to control

Gilbert, who was still crouched over the bench. Officer

Mack relieved Officer DeGregorio by taking control of

Gilbert’s left arm. Exhausted, Officer DeGregorio left the

cell to catch his breath. To better control Gilbert’s

movements, Officer Mack assisted the other officers in

moving Gilbert from the bench to the prone position on the

floor.

After Gilbert was moved to the prone position, Officer

Zachary Opel relieved Sergeant Bergmann by taking

control of Gilbert’s right side. Feeling winded from the

struggle, Sergeant Bergmann left the cell. Officers

Michael Cognasso, Bryan Lemons, and Erich vonNida

also responded to Gilbert’s cell to assist in bringing

Gilbert under control as Gilbert continued to kick his

shackled legs and thrash his body. Officer Cognasso put

his knees on the back of Gilbert’s calves, Officer Lemons

placed his knee on Gilbert’s leg, and Officer vonNida held

Gilbert’s arm or leg to prevent Gilbert from thrashing his

body. Throughout the altercation, the officers controlled

-App. 5aGilbert’s limbs at his shoulders, biceps, legs, and lower or

middle torso.2 While continuing to resist, Gilbert tried to

raise his chest up and told the officers to stop because they

were hurting him. After fifteen minutes of struggle in the

prone position, Gilbert stopped resisting and the officers

rolled him from his stomach onto his side. By this point,

each of the named officers had participated in the effort to

physically control Gilbert.

At some point while in the prone position, Gilbert had

stopped breathing.3 Officer Mack rolled Gilbert onto his

back and initially found a pulse in his neck but eventually

was unable to find one. Gilbert was transported to the

hospital where he was pronounced dead. Post mortem

testing showed Gilbert had a large amount of

methamphetamine in his system and significant heart

disease. The St. Louis City Medical Examiner’s autopsy

report stated that the manner of death was accidental and

that the cause of death was arteriosclerotic heart disease

exacerbated by methamphetamine and forcible restraint.

Lombardo presented a conflicting expert report, alleging

that Gilbert’s cause of death was forcible restraint

inducing asphyxia.

Lombardo sued under 42 U.S.C. § 1983, alleging 20

counts against Bergmann, Cognasso, DeGregorio, King,

2

During his deposition, Officer Cognasso stated that while Gilbert

was in the prone position, the officers put weight on various parts of

his body, including the “upper right side, and then there was, I

believe, a lower or middle part of his torso.” R. Doc. 77-11, at 4.

3

During his deposition, Officer Lemons confirmed that he had

previously stated, “When the resisting stopped, we stood up. I noticed

that he wasn’t breathing” and later testified, “All I know is when he

stopped breathing, we got up.” R. Doc. 67-5, at 16-17. Lombardo

argues this testimony shows that the officers did not remove Gilbert

from prone restraint until after he stopped breathing.

-App. 6aLemons, Mack, Opel, Stuckey, vonNida, and Wactor

(collectively, the Officers) and the City. By the time the

Officers and the City moved for summary judgment, the

only counts remaining were the counts against each

named police officer in his individual capacity for use of

excessive force and the counts against the City for an

unconstitutional policy resulting in a violation of Gilbert’s

constitutional rights and failure to train its officers

amounting to deliberate indifference to the rights of

persons with whom the police come into contact. The

district court granted the Officers and City’s motion for

summary judgment on the basis of qualified immunity.

The court found that there was no clearly established

Fourth Amendment right against the use of prone

restraint in this context at the time of the incident. The

court also found that because the individual Officers were

entitled to qualified immunity, the City could not be held

liable for the unconstitutional policy and failure-to-train

claims. Lombardo now appeals.

II.

Lombardo argues the district court erred in

concluding 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 [Lombardo] and

drawing all reasonable inferences in her favor.” Krout v.

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

qualified immunity determination, we apply a 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).

-App. 7aWe begin by addressing whether Lombardo has

presented evidence from which a reasonable jury could

conclude that the Officers violated Gilbert’s Fourth

Amendment right to be free from excessive force because

it is dispositive of the case. Ashcroft v. al-Kidd, 563 U.S.

731, 735 (2011) (“[L]ower courts have discretion to decide

which of the two prongs of qualified-immunity analysis to

tackle first.”). Lombardo argues the Officers used

excessive force when they held the handcuffed and legshackled Gilbert in an asphyxiating, prone position within

a secure holding cell. In determining whether an officer

used excessive force, we apply an objective

reasonableness standard. Ryan v. Armstrong, 850 F.3d

419, 427 (8th Cir. 2017). “We must assess the actions of

each officer from the perspective of a reasonable officer on

the scene, including what the officer knew at the time, not

with the 20/20 vision of hindsight.” Id. (internal citations

and quotation marks omitted). We rely on several factors

in making this determination:

the relationship between the need for the use of force

and the amount of force used; the extent of the

plaintiff’s injury; any effort made by the 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.

Id. (quoting Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473

(2015)).

Viewing the facts in the light most favorable to

Lombardo, we find that the Officers’ actions did not

amount to constitutionally excessive force. This Court has

previously held that the use of prone restraint is not

objectively unreasonable when a detainee actively resists

officer directives and efforts to subdue the detainee. Id.

-App. 8aat 427-28. In Ryan, law enforcement officers attempted to

extract a detainee from his cell, which the detainee

resisted. Id. at 424. Officers held the detainee down in the

prone position and one officer twice deployed his taser in

drive stun mode to allow the other officers to place the

detainee’s wrists and ankles in restraints. Id. In holding

that this use of force was not excessive, this Court

explained that “[a]mong” the most important [factors] is

the observation that [the detainee] was actively resisting

the extraction procedure by ignoring directives to lie down

on his bunk and resisting the [officers’] efforts to subdue

him once they entered his cell.” Id. at 428. Similarly, here,

the undisputed facts show that the Officers discovered

Gilbert acting erratically, and even though Gilbert was

held in a secure cell, it was objectively reasonable for the

Officers to fear that Gilbert would intentionally or

inadvertently physically harm himself. Further, Gilbert

actively resisted the Officers’ attempts to subdue him.

Indeed, Gilbert struggled with the Officers to such a

degree that he suffered a gash to the forehead, and several

of the Officers needed to be relieved throughout the

course of the incident as they became physically

exhausted from trying to subdue Gilbert.

Nonetheless, Lombardo argues that Ryan is not on

point. Specifically, Lombardo argues that, unlike Ryan, in

which the detainee was held in prone restraint for

approximately three minutes until he was handcuffed, id.,

Gilbert was held in prone restraint for fifteen minutes and

was placed in this position only after he had been

handcuffed and leg-shackled. Lombardo also argues that

she presented expert testimony that Gilbert’s cause of

death was forcible restraint inducing asphyxia whereas

the undisputed cause of death in Ryan was sudden

unexpected death during restraint. Id. at 424. We find

these differences to be insignificant. This Court has

-App. 9apreviously noted that “[h]andcuffs limit but do not

eliminate a person’s ability to perform harmful acts.”

United States v. Pope, 910 F.3d 413, 417 (8th Cir. 2018),

cert. denied, 140 S. Ct. 160 (2019). As discussed above, the

undisputed facts show that Gilbert continued to violently

struggle even after being handcuffed and leg-shackled.

Specifically, after being handcuffed, he thrashed his head

on the concrete bench, causing him to suffer a gash on his

forehead, and he continued to violently thrash and kick

after being leg-shackled. Because of this ongoing

resistance, the Officers moved Gilbert to the prone

position so as to minimize the harm he could inflict on

himself and others.

The undisputed facts further show that the Officers

held Gilbert in the prone position only until he stopped

actively fighting against his restraints and the Officers.

Once he stopped resisting, the Officers rolled Gilbert out

of the prone position. Lombardo argues Gilbert’s

resistance while in the prone position was actually an

attempt to breathe and an attempt to tell the Officers that

they were hurting him. However, under the

circumstances, the Officers could have reasonably

interpreted such conduct as ongoing resistance. See

Ehlers v. City of Rapid City, 846 F.3d 1002, 1011 (8th Cir.

2017) (finding irrelevant that a nonviolent misdemeanant

was not in fact resisting because “he at least appeared to

be resisting”). Finally, Lombardo’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 resistance, his extensive heart disease, and the

large quantity of methamphetamine in his system. See

Hill v. Carroll Cty., Miss., 587 F.3d 230, 234 (5th Cir. 2009)

(finding no excessive force where detainee was hog-tied

and plaintiff presented expert testimony that the cause of

death was positional asphyxia).

-App. 10aAccordingly, the Officers did not apply constitutionally

excessive force against Gilbert. Having concluded that the

facts presented do not make out a violation of Gilbert’s

constitutional rights, we need not evaluate the clearly

established prong of the qualified immunity analysis. See

Greenman v. Jessen, 787 F.3d 882, 887 & n.10 (8th Cir.

2015) (affirming the district court’s grant of qualified

immunity based on the constitutional violation prong even

though the district court only reached the clearly

established prong). We conclude the Officers are entitled

to qualified immunity on Lombardo’s excessive force

claim.

III.

Lombardo also argues the district court erred in

granting the Officers and City’s motion for summary

judgment on the unconstitutional policy and failure-totrain claims. We review de novo a grant of summary

judgment. Moyle v. Anderson, 571 F.3d 814, 817 (8th Cir.

2009). Lombardo argues that the City is liable under

§ 1983 because the City’s policy for restraining citizens 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 to citizens’ rights. However,

“[w]ithout a constitutional violation by the individual

officers, there can be no § 1983 or Monell . . . liability.”

Sanders v. City of Minneapolis, Minn., 474 F.3d 523, 527

(8th Cir. 2007). As discussed above, the Officers did not

violate Gilbert’s constitutional rights. Accordingly, the

City cannot be held liable under § 1983.

IV.

For the foregoing reasons, we affirm.

-App. 11a-

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

JODY LOMBARDO and BRYAN

GILBERT,

Case No. 4:16CV-01637-NCC

Plaintiffs,

v.

SAINT LOUIS CITY, RONALD

BERGMANN, JOE STUCKEY,

PAUL WACTOR, MICHAEL

COGNASSO, KYLE MACK,

ERICH VONNIDA, BRYAN

LEMONS, ZACHARY OPAL,

JASON KING, and RONALD

DEGREGORIO,

Defendants.

MEMORANDUM AND ORDER

This matter is before the Court on Defendants’ Motion

for Summary Judgment (Doc. 63).1 The Motion is fully

1

The parties have consented to the jurisdiction of the

undersigned United States Magistrate Judge pursuant to 28 U.S.C.

636(c)(1) (Doc. 12).

-App. 12abriefed and ready for disposition. For the following

reasons, Defendants’ Motion for Summary Judgment will

be GRANTED.

I. Legal Standard

Summary judgment is appropriate when no genuine

issue of material fact exists in the case and the movant is

entitled to judgment as a matter of law. See Celotex Corp.

v. Catrett, 477 U.S. 317, 322-23 (1986). The initial burden

is placed on the moving party. City of Mt. Pleasant, Iowa

v. Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir.

1988). If the record demonstrates that no genuine issue of

fact is in dispute, the burden then shifts to the non-moving

party, who must set forth affirmative evidence and specific

facts showing a genuine dispute on that issue. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In

determining whether summary judgment is appropriate

in a particular case, the Court must view the facts in the

light most favorable to the nonmoving party, and all

justifiable inferences are to be drawn in his favor. Benford

v. Correctional Medical Services, No. 1:11CV121 JAR,

2012 WL 3871948, at *4 (E.D. Mo. Sept. 6, 2012) (citing

Celotex Corp., 477 U.S. at 331). The Court’s function is not

to weigh the evidence but to determine whether there is a

genuine issue for trial. Id. (citing Anderson, 477 U.S. at

249). “Credibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from

the facts are jury functions, not those of a judge.” Id.

(quoting Torgerson v. City of Rochester, 643 F.3d 1031,

1042 (8th Cir. 2011)).

-App. 13aII. Background and Undisputed Facts2

On October 20, 2016, Plaintiffs Jody Lombardo and

Bryan Gilbert (“Plaintiffs”) filed a twenty-count action

pursuant to 42 U.S.C. § 1983 and Missouri state law

against the City and Police Officer Defendants. On

December 8, 2015, Plaintiffs’ son, Nicholas Gilbert (“Mr.

Gilbert”), died while in the custody of the Saint Louis

Metropolitan Police Department (“SLMPD”). There were

multiple SLMPD officers involved in the incident, all of

whom are named Defendants in the lawsuit along with the

City of St. Louis (“City”). Those Officers include: Ronald

Bergmann (“Sergeant Bergmann”), Michael Cognasso

(“Officer Cognasso”), Roland DeGregorio (“Officer

DeGregorio”), Jason King (“Officer King”), Bryan

Lemons (“Officer Lemons”), Kyle Mack (“Officer Mack”),

Zachary Opel (“Officer Opel”), Joseph Stuckey (“Officer

Stuckey”), Erich vonNida (“Officer vonNida”), and Paul

Wactor (“Officer Wactor”).3

Plaintiffs contend that Mr. Gilbert’s death was the

direct result of the use of excessive force (Counts V, VII,

IX, XII, XIII, XV, XVI, XVII, and XVIII), a deliberate

2

The Court’s recitation of facts is taken mainly from Plaintiffs’

Responses to Defendants’ Statement of Uncontroverted Material

Facts (Doc. 78) and Defendants’ Response to Plaintiffs’ Statement of

Additional Material Facts (Doc. 86). The Court also considered the

exhibits submitted by the parties, where appropriate, in making its

decision.

3

Because the Defendant Officers were named as individual

defendants, the Court considers each Officers’ conduct separately in

this section and throughout this Order. Wilson v. Northcutt, 441 F.3d

586, 591–92 (8th Cir. 2006) (“each defendant's conduct must be

independently assessed” in considering a multi-defendant motion for

summary judgment on grounds of qualified immunity because liability

for damages for a federal constitutional tort is personal).

-App. 14aindifference to his need for medical care (Counts VI, VIII,

X, XIV, and XIX), and negligence by Defendants (Count

XX). Plaintiffs further allege that the City is liable for the

death of Mr. Gilbert because its policies, customs, and

practices caused the deprivation of Mr. Gilbert’s

constitutional rights and thus his death (Counts I-IV).

This Court previously dismissed Count XX against the

City as well as the official capacity claims against all of the

named Police Officer Defendants. (Doc. 22.) In Plaintiffs’

response to the Motion for Summary Judgment, Plaintiffs

indicated they are not pursuing their claims for deliberate

indifference to medical needs or common law negligence

claims. They, therefore, consent to dismissal of Counts IV,

VI, VIII, X, XIV, XIX, and XX. (Doc. 79.)

Thus, the Counts that remain are as follows: the § 1983

Counts against the City based on its policies, practices,

protocols, customs, procedures, and training (Counts IIII) and the § 1983 Counts against each named Police

Officer Defendant in their individual capacity based on the

alleged use of excessive force in violation of the Fourth

and Fourteenth Amendments (Counts V, VII, IX, XI, XII,

XIII, XV, XVI, XVII, and XVIII).4

4

In asserting the Fourteenth Amendment, Plaintiffs appear to

seek redress under Fourteenth Amendment’s substantive due

process clause for violations of Mr. Gilbert’s Fourth Amendment

(excessive force) rights. However, the Supreme Court has made clear

that substantive due process is not the appropriate vehicle for claims

where, as here, there is a more definite constitutional provision that

protects against certain government behavior. Cnty. of Sacramento

v. Lewis, 523 U.S. 833, 854 (1998). As such, the Court will analyze the

claims directly under the Fourth Amendment, as applied to state

actors and pretrial detainees through the Fourteenth Amendment

Due Process Clause, rather than as substantive due-process claims.

See Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473; Walton v.

Dawson, 752 F.3d 1109, 1117–18 (8th Cir. 2014); Ryan v. Armstrong,

-App. 15aA. The Events in the Holdover Cell

The undisputed facts are as follows. On December 8,

2015, at approximately 1:35 p.m., Nicholas Gilbert (“Mr.

Gilbert”) was arrested by SLMPD officers on suspicion of

trespassing and occupying a condemned building and for

failing to appear in court for an outstanding traffic

violation, a misdemeanor. After his arrest, Mr. Gilbert,

who was five feet three inches tall and weighed 160

pounds, was brought to the holdover in the SLMPD’s

central patrol station. The holdover is a secure holding

facility within the SLMPD’s central patrol station where

prisoners are kept on a temporary basis before being

transported to the City’s Justice Center downtown. The

holdover is comprised of a booking area, where the clerk

sits behind a semicircular desk, a main holding cell where

prisoners are kept before they are booked, and a locked

cell block with eight individual cells for prisoners after

they have been booked. In the central patrol holdover, Mr.

Gilbert was placed in the main holding cell. During the

booking process, Mr. Gilbert was cooperative, and he

checked “no” to a question asking whether he had any

medical condition of which the police should be aware.

After he was booked, Mr. Gilbert was transferred from

the main holding cell to an individual cell. (Doc. 78 ¶¶ 1316, 22, 24, 25, 26, 31; Doc. 86 ¶¶ 1, 3.)

There were several officers in the holdover area at this

time, including Officers King, Wactor, DeGregorio, and

Stuckey. Officer King, who was in the holdover assisting a

probationary officer with the booking process, observed

Mr. Gilbert in his cell, grabbing at the air. Mr. Gilbert’s

behavior struck Officer King as unusual. Officer Wactor,

154 F. Supp. 3d 798, 807 (D. Minn. 2016), aff’d in part, rev’d in part

on other grounds, 850 F.3d 419 (8th Cir. 2017).

-App. 16awho was also in the holdover area at the time, had

observed Mr. Gilbert waving his hands in the air “almost

like he was practicing some type of martial arts.” Officer

Stuckey, who was in the holdover behind the desk

preparing paperwork for a prisoner transport run, had

briefly noticed Mr. Gilbert acting strangely, rattling the

bars of his cell, throwing his shoe, and bobbing up and

down. Officer Stuckey noticed behavior from Mr. Gilbert

that he associated with Organic Brain Syndrome.5 (Doc.

86 ¶ 84.) However, Officer Stuckey had only glanced at Mr.

Gilbert for a second or two, had no contact with him, and

had no idea whether he had mental problems. (Doc. 78 ¶¶

31–32, 36, 42, 37, 43.)

After Officer King observed Mr. Gilbert grab at the air

and when he looked up again after attending to his

probationary officer, Officer King noticed that Mr. Gilbert

was tying an article of clothing around the bars of his cell

and putting it around his neck. Upon seeing Mr. Gilbert

tie an article of clothing around the bars of his cell and to

his neck, Officer King stated that Mr. Gilbert appeared to

be trying to hang himself. Officers DeGregorio, Stuckey,

and Wactor were in the holdover at the time that Officer

King made that statement. Upon hearing Officer King,

Officer Wactor went to notify a supervisor. Upon hearing

Officer King, Officer DeGregorio looked up from his

paperwork and saw Mr. Gilbert with clothing tied around

his neck and connected to the top bars of his cell.

5

Officer Stuckey testified that “his understanding and knowledge

of OBS is a common term that’s used throughout the department to

identify someone that could have mental issues, could be highly

agitated, could be on chemical substance.” (Doc. 67-8, at 28:12–16.)

Plaintiffs state it has been described as a general moniker used by

officers to describe individuals exhibiting signs of impaired mental

function. (Doc. 86 n.2.)

-App. 17aThereafter, Officer DeGregorio proceeded, like Officer

Wactor, to attempt to alert a supervisor of the situation.

And upon hearing officers state that Mr. Gilbert was

trying to hang himself, Officer Stuckey, who was sitting in

the holdover behind the clerk’s desk, turned around and

saw that Mr. Gilbert had an article of clothing around his

neck. (Doc. 78 ¶¶ 31–33, 36, 38, 40–44.)

Officer Stuckey requested Ms. Veronica Wilburn, the

clerk who booked Mr. Gilbert, to unlock the secure door to

the cell block so that he could respond to Mr. Gilbert’s cell.

Officer Stuckey proceeded to Mr. Gilbert’s cell, and he was

followed by Officer DeGregorio and by Sergeant

Bergmann, a supervisor who had just entered the

holdover and been advised that Mr. Gilbert was

attempting to harm himself. (Doc. 78 ¶¶ 45, 46–47.)

As Officer Stuckey approached Mr. Gilbert’s cell, the

cell door opened.6 When the cell door opened, Mr. Gilbert

did not have any clothing tied to his neck. Early in the

encounter, Mr. Gilbert had his hands up.7 Officer Stuckey

6

The parties dispute whether Mr. Gilbert was inside or outside of

the cell at this point (See Doc. 78 ¶¶ 49–50.) The Court finds this

immaterial, as it is undisputed that the Officers were responding to

Mr. Gilbert’s apparent attempt to hang himself and that Mr. Gilbert

attempted to evade the officers when they arrived. (Doc. 78 at ¶¶ 33–

47, 52–53.) Moreover, this is not relevant under the applicable case

law discussed infra.

7

While it is undisputed that Mr. Gilbert had his hands up early

in the encounter, the parties disagree as to whether Mr. Gilbert was

in a fighting stance or exhibiting signs of aggression. (See Doc. 78

¶ 51.) Defendants point to the testimony of Officer Stuckey, who

testified Mr. Gilbert raised his fists and assumed a fighting stance,

which led Officer Stuckey to believe Mr. Gilbert was going to start

hitting him. (Id.; Doc. 67-8 at 34:19–35:9, 36:10–21) Defendants also

point to the testimony of Officer DeGregorio, who initially entered

the cell with Officer Stuckey. (Doc. 78 ¶ 51.) Officer DeGregorio

-App. 18athen grabbed Mr. Gilbert by his left wrist and attempted

to spin him around to handcuff him. He was able to cuff

Mr. Gilbert’s left wrist, but Mr. Gilbert evaded having his

right wrist cuffed, and he began to struggle with Officer

Stuckey and with Officer DeGregorio and Sergeant

Bergmann, who had arrived in the cell as well. During the

struggle, Mr. Gilbert was brought to a kneeling position

over a concrete bench inside the cell. Officer DeGregorio

attempted to control Mr. Gilbert by grabbing his left bicep

and left wrist. Sergeant Bergmann attempted to control

Mr. Gilbert by grabbing his right arm, which Mr. Gilbert

was flailing and concealing underneath him in an attempt

to avoid being handcuffed. While Mr. Gilbert was kneeled

over the bench, Sergeant Bergmann and Officer Stuckey

were able to get his right wrist cuffed. (Doc. 78 ¶¶ 49, 52,

53–57; Doc. 86 ¶ 8.)

The Officers eventually cuffed both of Mr. Gilbert’s

hands. After he was handcuffed, Mr. Gilbert tried to stand

up, kicked the officers, and reared backwards off of the

bench. Mr. Gilbert also thrashed his head about on the

concrete bench and suffered a gash on his forehead, which

started to bleed. After he was handcuffed, Mr. Gilbert

kicked Officer Stuckey, who had been standing over him

to cuff him, in his groin area, causing Officer Stuckey to

stumble backward. After Officer Stuckey was kicked,

testified that Mr. Gilbert raised a fist toward Officer Stuckey, which

led Officer Stuckey to try and handcuff Mr. Gilbert. (Doc. 67-43 at

59:13–60:8.) Plaintiffs point to the deposition testimony of Officer

King (Doc. 78 ¶ 51), who testified Mr. Gilbert “just had his hands up”

(Doc. 78-2 at 16:24–17:19). Officer King was in the booking area, not

the cell, at this time, and he testified that he was not watching when

the Officers first approached Mr. Gilbert, so he did not witness the

encounter. (Doc. 67-4 at 9:10–22, 16:10–22.) The Court finds this

immaterial for the same reasons stated in the previous footnote and

for additional reasons discussed infra.

-App. 19aSergeant Bergmann called for help and for someone to

bring leg shackles. (Doc. 78 ¶¶ 58–61.)8 Officer Stuckey

then left and went back to the counter by the clerk’s

station and could not see Mr. Gilbert. (Doc. 67-8 at 41:15–

18, 42:21–43:17.)

In response to Sergeant Bergmann’s request for leg

shackles, Officer Wactor retrieved shackles from the

central patrol desk and brought them to Mr. Gilbert’s cell,

where Mr. Gilbert continued to struggle over the bench

with multiple officers. Officer King responded to Sergeant

Bergmann’s request for help, and, after grabbing Mr.

Gilbert’s ankles to keep him from kicking, assisted Officer

Wactor in shackling Mr. Gilbert’s legs. (Doc. 78 ¶¶ 62–63.)

After Mr. Gilbert’s legs were shackled, Sergeant

Bergmann requested that someone call EMS. Sergeant

Bergmann’s intention in requesting EMS was to get Mr.

Gilbert to a hospital to determine if he was fit for

confinement or, alternatively, to be admitted to the

hospital for his suicide attempt. Upon hearing Sergeant

Bergmann’s request, Officer King, who, having assisted in

shackling Mr. Gilbert’s legs was leaving the cell to return

to his regular duties, radioed the dispatcher to request

8

In their Responses to Defendants’ Statement of Uncontroverted

Material Facts, Plaintiffs assert a general “deny” response to the

paragraphs setting forth these facts. (See Doc. 78 ¶¶ 58-61.) In their

blanket denial, Plaintiffs argue that Mr. Gilbert was not ignoring

commands or being violent, but that, instead, he was trying to open

up his lungs to breathe, an act known as “air hunger,” citing as one

source to an expert report from Dr. Francisco Diaz, one of their

experts. Importantly, however, Plaintiffs do not deny the factual

predicate. The Court, therefore, finds that the facts, themselves, are

undisputed. Moreover, the Court excluded Dr. Diaz’s testimony

regarding “air hunger” to the extent he opined that Mr. Gilbert’s

struggles reflected such air hunger. The Court further discusses

analyzes these facts and Dr. Diaz’s report infra.

-App. 20aEMS in connection with Mr. Gilbert’s “possible psychotic

issues.” EMS was first called at 6:15 p.m. (Doc. 78 ¶¶ 64–

66; Doc. 86 ¶ 19.)

In further response to Sergeant Bergmann’s request

for help, Officer Stuckey yelled at the clerk, Ms. Wilburn,

to sound the holdover alarm, but when Ms. Wilburn

appeared unable to locate the alarm, Officer Stuckey left

the holdover and yelled into the hallway for help with a

combative subject. The alarm was also activated, which

broadcasted a looped message stating that an officer was

in need of assistance in the holdover. After Officer Stuckey

yelled for help, he stayed outside the holdover for some

time to compose himself, and he did not return to Mr.

Gilbert’s cell. (Doc. 78 ¶¶ 67–69.)

A number of officers responded to the alarm and to

Officer Stuckey’s calls for help. Officer Mack responded to

the holdover from the report writing room at central

patrol. When he got to the holdover, Officer Mack

observed officers struggling to control Mr. Gilbert, who

was handcuffed and shackled, and crouched over the

bench in his cell. Officer Mack relieved Officer

DeGregorio. Upon being relieved by Officer Mack, Officer

DeGregorio, feeling exhausted, left the cell and went

outside to catch his breath. Officer Mack relieved Officer

DeGregorio’s position holding Mr. Gilbert down after

Officer DeGregorio became exhausted. Officer Mack took

control of Mr. Gilbert’s upper left arm and attempted to

prevent Mr. Gilbert from thrashing about and hitting his

head against the concrete. (Doc. 78 ¶¶ 70–74; Doc. 86 ¶ 42.)

After he relieved Officer DeGregorio, Officer Mack

assisted in moving Mr. Gilbert from the bench to a prone

position on the floor, which was more secure and which

presented less of a tripping hazard. After Mr. Gilbert was

moved to the floor, Officer Opel, who had responded to the

-App. 21aholdover from the report writing room, relieved Sergeant

Bergmann, who told Opel to control Mr. Gilbert’s right

side so Mr. Gilbert would not bang his head on the

concrete. After he was relieved by Officer Opel, Sergeant

Bergmann, feeling winded from an intense struggle,

stepped out of the cell and off to the side. (Doc. 78 ¶¶ 75–

77.)

In addition to Officers Mack and Opel, Officers

Cognasso, Lemons, and vonNida also responded to Mr.

Gilbert’s cell and assisted in bringing him under control.

(Doc. 78 ¶¶ 78.) Officer Cognasso, who had responded

from the rear desk in central patrol when he heard Officer

Stuckey’s plea for help, responded to find Mr. Gilbert

thrashing his shackled legs back and forth, kicking the

officers, and moving his body around. (Doc. 78 ¶ 79.)9

Officer Cognasso put his knees on the back of Mr.

Gilbert’s calves to prevent him from striking anyone.

Officer Lemons, who had responded from the report

writing room to find Mr. Gilbert struggling and kicking,

assisted by placing his knee on Mr. Gilbert’s leg to prevent

him from kicking. Officer vonNida, who had responded

from outside the holdover, assisted by holding Gilbert’s

arm or leg, and securing him so he could not thrash about.

(Doc. 78 ¶¶ 80–82.)

While Mr. Gilbert struggled against the officers on the

floor, the Officers controlled Mr. Gilbert’s limbs at his

shoulders, biceps, and legs and did not place their body

weight on him in a manner that would compress his neck.10

9

See supra n.8. Again, Plaintiffs issue a general denial of this

paragraph based on “air hunger” but do not deny the facts or

testimony.

10

See supra n.8. Plaintiffs issue a general denial of this paragraph

based on “air hunger” and further generally contend in their response

to this paragraph that the Officers held Mr. Gilbert down by placing

-App. 22aMr. Gilbert was trying to raise his chest up during the

altercation. (Doc. 86 ¶ 26.) After struggling with officers

on the ground for several minutes, Mr. Gilbert calmed

down to the point where he was no longer kicking, flailing,

and actively fighting against his restraints, and the

Officers rolled him from his stomach onto his side. (Doc.

78 ¶¶ 84.)11

Officer Cognasso stood up, and Sergeant Bergmann

used his radio to check if EMS was en route and to ask the

dispatcher to have EMS “step it up” so they could “get this

guy [Gilbert] out of here.” A nearly contemporaneous

audio recording of the police dispatcher relaying Sergeant

Bergmann’s request to EMS shows that Bergmann’s call

was made at 6:26 p.m. Officer Cognasso, who heard

Sergeant Bergmann’s call for EMS, left the holdover to

wait outside for EMS to respond. (Doc. 78 ¶¶ 86, 87.)

At some point, Mr. Gilbert’s breathing appeared

abnormal to the officers. After Mr. Gilbert was rolled onto

his side, Officer Mack then rolled Mr. Gilbert on his back,

checked for a pulse, and was able to find a pulse in Mr.

Gilbert’s neck. (Doc. 78 ¶ 93; Ex. E at 22:1-16.)

At some point, Mr. Gilbert stopped breathing. Officer

Mack requested someone retrieve the AED. Officers

vonNida and Opel went to retrieve the AED. Officer Mack

pressure on his back and torso, citing to deposition testimony from

Officer Michael Cognasso, which the Court addresses infra. Plaintiffs

do not dispute, however, the stated facts relating to the shoulders,

biceps, legs, or neck.

11

See supra n.8. Again, Plaintiffs issue a general denial of this

paragraph based on “air hunger” but do not deny the facts or

testimony. Therefore, the factual predicate, including that the

Officers moved Mr. Gilbert to his side once he stopped struggling, is

undisputed.

-App. 23aalso updated Sergeant Bergmann regarding Mr. Gilbert’s

condition, and Sergeant Bergmann radioed dispatch to

upgrade the pending request for EMS to “urgent” on the

grounds that Mr. Gilbert “may not be breathing.” A nearly

contemporaneous audio recording of the police dispatcher

relaying Sergeant Bergmann’s request to EMS shows

that Bergmann’s call was made at 6:27 p.m. Officer Mack

checked Mr. Gilbert’s pulse again and was unable to find a

pulse. After Officer Mack was unable to find a pulse,

Officers Mack and Wactor began performing chest

compressions on Mr. Gilbert as he lay on his back. Officers

Mack and Wactor also performed rescue breathing on Mr.

Gilbert. When Officers vonNida and Opel returned with

the AED, Officers vonNida and Wactor attempted to use

the machine to shock Gilbert’s heart, but the AED

machine never signaled that Mr. Gilbert had a shockable

heart rhythm. At 6:33 p.m., Sergeant Bergmann again

radioed dispatch to check on the status of EMS, advised

that EMS needed to “step it up,” and was told by the

dispatcher that EMS would be arriving “any minute.”

Officers Mack and Wactor performed CPR until the fire

department showed up and the fire department medics

relieved the officers. Eventually, an ambulance arrived

and transported Mr. Gilbert to the hospital, where he was

pronounced dead. (Doc. 78 ¶¶ 95–105.)

There were no video or audio recorders in the holdover

area, so there is no video or audio of these events.

B. The Autopsy & Investigation

After Mr. Gilbert’s death, Dr. Jane Turner conducted

an autopsy for the St. Louis City Medical Examiner. Post

mortem testing performed during Dr. Turner’s

investigation showed that Mr. Gilbert had a large

concentration of methamphetamine in his system and that

he had significant heart disease. (Doc. 78 ¶¶ 106, 107, 109.)

-App. 24aThe parties do not dispute that Dr. Turner’s report stated

that the manner of death was accidental and that the cause

of death was “Arteriosclerotic Heart Disease Exacerbated

by Methamphetamine and Forcible Restraint.” (Doc. 6713 at 138.) In her pathological findings, Dr. Turner

reported contusions and laceration of face, contusions and

abrasions of upper and lower extremities, a small soft

tissue contusion of the left shoulder area, and a fractured

sternum. (Doc. 67-13 at 138, Doc. 67-32 at 34:18–24.) She

did not find any petechial hemorrhages. (Doc. 67-32 at

34:18–24.)

The SLMPD also completed an investigation. As part

of this investigation, photographs were taken, showing

blood on the scene. Each of the Officers was interviewed,

and their transcribed statements were included in a final

police report. Dr. Turner’s autopsy report was provided

to the police and was made part of the investigative report.

(Doc. 78 ¶¶ 112-114.) The Officers were not disciplined.

(See 67-34.)

C. The City’s Training and Policies

The City’s Police Department is internationally

accredited by the Commission on Accreditation for Law

Enforcement Agencies, Inc., or “CALEA,” an

international police accreditation organization, and the

SLMPD’s policies cross-reference relevant CALEA

standards. The City’s use of force policy is long and

detailed, and provides, at its core, that “Officers will use

the least amount of force reasonably necessary to

accomplish their lawful objectives while safeguarding

their own lives and the lives of others.” (Doc. 78 ¶¶ 115,

116.)

Although the parties disagree over whether the City

provided training or had a policy on the use of force

-App. 25aspecifically governing Mr. Gilbert’s situation, it is

undisputed that all of the City’s officers, including the

Officer Defendants, have been trained on the use of force

(also known as “defensive tactics”) and receive monthly

refresher tests on the use of force through the SLMPD’s

“PASS” system. (Doc. 78 ¶ 117.)

The SLMPD’s policy relating to operations in its

holdovers provides, among other things, that prisoners

who are under the influence of alcohol or drugs and who

are violent to the point of being self-destructive should be

continually observed and may be placed in restraints at a

supervisor’s discretion until such time as they are

transported to an appropriate medical facility. The policy

also provides that prisoners who attempt suicide or are

potentially suicidal should be observed at all times and

that officers may confine persons if it is reasonably

believed they are mentally ill or under the influence of

drugs and pose an imminent likelihood of harm to

themselves or others. (Doc. 78 ¶¶ 118–20.)

The SLMPD does not have a specific, separate policy

for restraining emotionally disturbed persons or persons

with organic brain syndrome. Rather, when such persons

must be restrained, such restraints must comply with the

SLMPD’s general use of force policy. In order to avoid the

need for any individual officer to exert great force while

restraining a combative subject, officers are taught to

work as a team to control the subject’s limbs. (Doc. 78 ¶¶

115–116, 118, 121, 130.) Prone restraint is not prohibited

by the SLMPD. (Doc. 78 ¶ 26.)

II. Analysis

The qualified immunity doctrine “shields government

official from civil damage liability for discretionary action

that ‘does not violate clearly established statutory or

-App. 26aconstitutional rights of which a reasonable person would

have known.’” De La Rosa v. White, 852 F.3d 740, 745 (8th

Cir. 2017), reh’g denied (June 5, 2017), cert. denied, 138 S.

Ct. 737 (2018) (quoting Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982)). Qualified immunity is not available “if an

official ‘knew or reasonably should have known that the

action he took within his sphere of official responsibility

would violate the constitutional rights of the [individual],

or if he took the action with the malicious intention to

cause a deprivation of constitutional rights or other

injury.’” Harlow, 457 U.S. at 815 (quoting Wood v.

Strickland, 420 U.S. 308, 322 (1975)). “The qualified

immunity standard gives ample room for mistaken

judgments by protecting all but the plainly incompetent or

those who knowingly violate the law.” Hunter v. Bryant,

502 U.S. 224, 229 (1991) (internal quotations omitted).

In determining whether an officer is entitled to

qualified immunity, the Court employs a two-step analysis

that asks: (1) whether the alleged facts, when viewed in

the light most favorable to the plaintiff, demonstrate that

the official’s conduct violated a constitutional right; and (2)

whether the constitutional right being asserted is clearly

established. Wallingford v. Olson, 592 F.3d 888, 892 (8th

Cir. 2010) (cited cases omitted). The Court may address

either question first. Boude v. City of Raymore, 855 F.3d

930, 933 (8th Cir. 2017) (citing Pearson v. Callahan, 555

U.S. 223, 236 (2009)). “If either question is answered in the

negative, the public official is entitled to qualified

immunity.” Norris v. Engles, 494 F.3d 634, 637 (8th Cir.

2007) (quoted case omitted). “To avoid pretrial dismissal,

a plaintiff must present facts showing the violation of a

constitutional right that was clearly established at the

time of defendant’s act.” De La Rosa, 852 F.3d at 743.

-App. 27aUnder the Fourth Amendment, the test for

determining whether excessive force was used under the

first prong of the analysis is whether “the amount of force

used was objectively reasonable under the particular

circumstances.” Small v. McCrystal, 708 F.3d 997, 1005

(8th Cir. 2013) (quoting Brown v. City of Golden Valley,

574 F.3d 491, 496 (8th Cir. 2009)). See also Hicks v.

Norwood, 640 F.3d 839, 842 (8th Cir. 2011) (“It is settled

in this circuit that the Fourth Amendment's ‘objective

reasonableness’ standard for arrestees governs excessiveforce claims arising during the booking process.”). The

Court determines “whether a use of force was reasonable

by balancing ‘the nature and quality of the intrusion on the

individual’s Fourth Amendment interests against the

countervailing governmental interests at stake.’”

McKenney v. Harrison, 635 F.3d 354, 359 (8th Cir. 2011)

(quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).

The “[r]easonableness of a seizure is determined by

the totality of the circumstances and must be judged from

the viewpoint of a reasonable officer on the scene.” McCoy

v. City of Monticello, 342 F.3d 842, 848 (8th Cir. 2003)

(citing Graham, 490 U.S. at 396–97). Thus, the

reasonableness of force depends on the circumstances

confronting the officers, including factors such as the

severity of the crime at issue, whether the suspect poses

an immediate threat to the safety of the officer or others,

and whether he is actively resisting arrest or attempting

to evade arrest by flight. Shannon v. Koehler, 616 F.3d

855, 862 (8th Cir. 2010) (citing Graham, 490 U.S. at 396).

This inquiry is objective, questioning “whether the

officers’ actions are ‘objectively reasonable’ in light of the

facts and circumstances confronting them, without regard

to their underlying intent or motivation.” Graham, 490

U.S. at 397; see also McCoy, 342 F.3d at 848

(reasonableness “must be judged from the viewpoint of a

-App. 28areasonable officer on the scene, irrespective of the officer's

underlying intent or motivation.”) The Court “must assess

the actions of each officer ‘from the perspective of a

reasonable officer on the scene, including what the officer

knew at the time, not with the 20/20 vision of hindsight.’”

Ryan v. Armstrong, 850 F.3d 419, 427 (8th Cir. 2017)

(quoting Graham, 490 U.S. at 396). “This calculus allows

for the fact that police officers are often forced to make

split-second decisions—in circumstances that are tense,

uncertain, and rapidly evolving—about the amount of

force that is necessary in a particular situation.” Brown,

574 F.3d at 496 (quoting Graham, 490 U.S. at 396). “Once

the predicate facts are established, the reasonableness of

the official’s conduct under the circumstances is a question

of law.” McKenney v. Harrison, 635 F.3d 354, 359 (8th Cir.

2011) (quoting Mann v. Yarnell, 497 F.3d 822, 825 (8th

Cir. 2007)) (internal quotation omitted).

The Court elects to address the “clearly established”

qualified-immunity prong first, because it is dispositive of

the case. See, e.g., Smith v. City of Minneapolis, 754 F.3d

541, 546 (8th Cir. 2014); De Boise v. Taser Int’l, Inc., 760

F.3d 892, 896 (8th Cir. 2014) (even assuming without

deciding that force used was excessive in violation of

Fourth Amendment rights, such rights were not clearly

established at the time of the incident, thus entitling

officers to summary judgment).

A. The Defendant Officers’ conduct did not violate a

clearly established right.

While “the defendant bears the burden of proof for this

affirmative defense [of qualified immunity], the plaintiff

must demonstrate that the law was clearly established.”

Smith v. City of Minneapolis, 754 F.3d 541, 546 (8th Cir.

2014) (citations and internal quotations omitted). The law

must be clearly established at the time the incident in

-App. 29aquestion took place. See Ashcroft v. al-Kidd, 563 U.S. 731,

741 (2011). To determine whether a right is clearly

established for qualified immunity purposes “we ask

whether it would be clear to a reasonable officer that his

conduct was unlawful in the situation he confronted.”

White v. McKinley, 519 F.3d 806, 813 (8th Cir. 2008)

(quoted case and internal quotations marks omitted). In

other words, the “‘contours of the clearly established right

must be sufficiently clear’” such that “‘every reasonable

official would have understood that what he is doing

violates that right.’” De La Rosa v. White, 852 F.3d 740,

745 (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)

and Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

“‘Put simply, qualified immunity protects all but the

plainly incompetent or those who knowingly violate the

law.’” Id. (quoting Mullenix, 136 S. Ct. at 308).

“Whether the constitutional right at issue was ‘clearly

established’ is a question of law for the court to decide.”

Bishop v. Glazier, 723 F.3d 957, 961 (8th Cir. 2013)

(citation omitted). While a case directly on point is not

required, “‘existing precedent must have placed the

statutory or constitutional question beyond debate.’” De

La Rosa, 852 F.3d at 745 (quoting Mullenix, 136 S. Ct. at

308); see also Davis v. Hall, 375 F.3d 703, 712 (8th Cir.

2004) (“Officials are not liable for bad guesses in gray

areas; they are liable for transgressing bright lines.”)

(quotation omitted). In fact, the Supreme Court recently

reiterated that “[u]se of excessive force is an area of the

law ‘in which the result depends very much on the facts of

each case,’ and thus police officers are entitled to qualified

immunity unless existing precedent ‘squarely governs’ the

specific facts at issue.” Kisela v. Hughes, 138 S. Ct. 1148,

1153 (2018) (quoting Mullenix, 136 S. Ct. at 309).

-App. 30aWhere there is “no controlling Eighth Circuit

authority placing the question beyond debate,” qualified

immunity applies unless there is a “‘robust consensus of

cases of persuasive authority’” demonstrating whether

the particular conduct, under similar circumstances,

violated clearly established law. De La Rosa, 852 F.3d at

745–46 (quoting al-Kidd, 563 U.S. at 742). Moreover, when

there is no controlling Eighth Circuit authority and other

circuits are split on the issue, the law is not clearly

established. See, e.g., Burton v. Richmond, 370 F.3d 723,

730 (8th Cir. 2004).

In this case, Plaintiffs cannot defeat the Officers’

defense of qualified immunity unless Plaintiffs are able to

show that a reasonable officer would have been on notice

as of December 8, 2015, that the Officers’ conduct violated

a clearly established right. See De Boise v. Taser Int'l,

Inc., 760 F.3d 892, 896 (8th Cir. 2014). Even assuming the

Defendant Officers did not use objectively reasonable

force under the first prong of the qualified immunity

analysis and after a careful review of the record, the Court

finds that the Officer Defendants are entitled to summary

judgment because they did not violate a clearly

established right. For the reasons discussed below, the

Court finds controlling Eighth Circuit law does not place

the question beyond debate and there is not a robust

consensus of persuasive authority, as the circuits are split

over the outcome in cases with similar facts. As such, the

Defendant Officers are entitled to qualified immunity.

1. Preliminary Matters

Plaintiffs argue broadly that the “right to be free from

asphyxiating, prone restraint was clearly established.”

(Doc. 79 at 8.) The Court finds that this framing of the

issue for the clearly established analysis is too broad. As

the Eighth Circuit recently reiterated, “we cannot ‘define

-App. 31aclearly established law at a high level of generality.’”

Ehlers v. City of Rapid City, 846 F.3d 1002, 1012 (8th Cir.

2017) (quoting Mullenix, 136 S. Ct. at 308); see also White

v. Pauly, 137 S. Ct. 548, 552 (2017) (finding it again

necessary to reiterate to lower courts “the longstanding

principle that ‘clearly established law’ should not be

defined ‘at a high level of generality’”) (citations omitted).

Instead, “‘[t]he dispositive question is whether the

violative nature of particular conduct is clearly

established.’” Ehlers, 846 F.3d at 1012 (quoting Mullenix,

136 S. Ct. at 308) (emphasis in original). The Supreme

Court recognized that “‘[s]uch specificity is especially

important in the Fourth Amendment context, where . . .

[i]t is sometimes difficult for an officer to determine how

the relevant legal doctrine, here excessive force, will apply

to the factual situation the officer confronts.’” Id. (quoting

Mullenix, 136 S. Ct. at 308). Plaintiffs seem to take the

position that prone restraint is never acceptable under

any circumstances, regardless of the level of force that is

used or other circumstances facing the officers, once a

suspect is handcuffed. (See, e.g., Doc. 78 ¶ 126; Doc. 79 at

12; Doc. 86 ¶ 102, 104.) However, that position, as will be

discussed below, does not square with the pre-existing

law.

Since “the clearly established law must be

‘particularized’ to the facts of the case,” White, 137 S. Ct.

at 552, in order to properly frame the issue for this Court’s

consideration and as a preliminary matter, the Court finds

it necessary and helpful to first address some of Plaintiffs’

arguments regarding the facts in this case.

a. Mr. Gilbert’s Actions of Resistance

Plaintiffs argue that Mr. Gilbert posed no threat to

anyone and claim an ill motive to the initially responding

Defendant Officers’ actions. See McCoy v. City of

-App. 32aMonticello, 342 F.3d 842, 848 (8th Cir. 2003) (officers’

underlying intent or motivation irrelevant). However, it is

undisputed that the Officers were responding to Mr.

Gilbert’s apparent attempt to hang himself by tying an

article of clothing around his cell bars and putting it

around his neck. (Doc. 78 at ¶¶ 33-47.) And it is undisputed

that Mr. Gilbert attempted to evade the officers when they

arrived at his cell. (Id. at ¶¶ 52–53.) Under these

circumstances, it was not unreasonable for the Officers to

restrain Mr. Gilbert. Police officers are authorized to

detain persons who may pose a danger to themselves. See

Lacy v. City of Bolivar, 416 F.3d 723, 727 (8th Cir. 2005)

(discussing standard under Mo. Rev. Stat. § 632.305

authorizing detention). Moreover, given Mr. Gilbert’s

apparent suicide attempt, the Officers had authority to

restrain him. See Winters v. Adams, 254 F.3d 758, 763-64

(8th Cir. 2001) (police are authorized to stop and detain

persons who appear dangerous to themselves or others as

part of their “community caretaking” function).

Additionally, even accepting Plaintiffs’ argument that Mr.

Gilbert was having a mental health crisis and posed no

threat (Doc. 79 at 6–7), the Officers would still be entitled

to qualified immunity. See, e.g., Lewis v. City of W. Palm

Beach, 561 F.3d 1288, 1292 (11th Cir. 2009) (affirming

district court’s grant of summary judgment in section 1983

case where emotionally disturbed and agitated detainee,

who was hog tied in prone position and died of asphyxia,

was not a danger to officers or forcefully attacking them,

but was deemed by court to be a safety risk merely

because of his refusal to comply with officers’ simple

instructions, his inability to remain calm, and his

continued struggling); Giannetti v. Stillwater, 216 Fed.

App’x 758–59 (10th Cir. 2007) (finding officers’ deadly

force upon prone jailed detainee reasonable when

detainee simply refused to put on jumpsuit).

-App. 33aIt also is undisputed that, throughout the encounter,

Mr. Gilbert thrashed, fought, kicked, and otherwise

struggled with the Officers. Each and every one of the

Officers, as noted above, witnessed and reacted to these

acts. For example, during the initial struggle with Officer

Stuckey, Officer DeGregorio, and Sergeant Bergmann,

and even after Mr. Gilbert was handcuffed, he tried to

stand up from a kneeling position, kicked the officers, and

reared back off of the bench. While on the bench, Mr.

Gilbert thrashed his head on the concrete bench with such

force that he suffered a gash on his forehead. While the

Officers were retrieving leg shackles, Mr. Gilbert

continued to struggle over the bench with multiple

Officers, including kicking. Indeed, Plaintiffs do not

dispute that Officer King, who had recently arrived on the

scene, had to hold Mr. Gilbert’s ankles to keep him from

kicking as leg shackles were being applied and that Officer

Wactor also witnessed Mr. Gilbert struggling with

multiple officers as he then helped apply the leg shackles.

It is undisputed that Officer Stuckey yelled for

additional help from other officers to assist with a

combative subject. When those Officers arrived, it is

undisputed that Officer Mack observed officers struggling

to control Mr. Gilbert even though he was already

handcuffed and shackled and that Officer Mack took

control of Mr. Gilbert’s arm to prevent him from thrashing

about and hitting his head. It is undisputed that, at this

point, Mr. Gilbert was moved to a prone position on the

floor, which was more secure, and that Officer Opel

secured Mr. Gilbert’s right side to ensure he would not

bang his head on the concrete. It also is undisputed that

the Officers who later helped also witnessed a struggle.

For instance, when Officer Cognasso arrived on the scene,

he witnessed Mr. Gilbert kicking his legs back and forth,

kicking the officers, and moving his body around. Officer

-App. 34aLemons similarly witnessed Mr. Gilbert struggling and

kicking, and Officer VonNida secured Mr. Gilbert so he

could not thrash about.

Defendants argue these facts demonstrate Mr. Gilbert

was resistant, combative, and non- compliant. Plaintiffs

either wholly admit these facts or at times argue—

without disputing the facts themselves—that some of

these actions were not evidence of resistance or

combativeness, but of “air hunger” or a struggle to

breathe while being restrained.12 Plaintiffs point, in part,

to the fact that Mr. Gilbert raised his chest up during the

altercation.

The Court will take as true Plaintiffs’ versions of

events and assume that Mr. Gilbert’s actions were

innocent, that he was not ignoring commands or being

violent, and that his actions were based on “air hunger.”

Even so assuming, however, the Court finds that it was

not established as a matter of law that the Officers should

have interpreted Mr. Gilbert’s actions of kicking,

thrashing, and otherwise fighting as “air hunger” instead

of resistance. Instead, as will be discussed more below,

12

See supra n.8. Plaintiffs point to non-judicial sources in support

of their air hunger argument. Plaintiffs also rely heavily on the

opinion of their retained experts, Dr. Diaz, in supporting their “air

hunger” arguments. (See Doc. 86 ¶ 27.) Dr. Diaz is a board-certified

forensic pathologist who has focused his career on, among other

things, performing post-mortem examinations and reviewing deaths

in custody. In his expert report, Dr. Diaz concluded that Mr. Gilbert’s

struggle was a direct reflection of his “air hunger,” ultimately leading

to asphyxiation. (Doc. 74-6.) Defendants sought to exclude Dr. Diaz’s

testimony. The Court, under separate order, excluded his testimony

in part, including to the extent he opined that Mr. Gilbert’s struggles

reflected such air hunger. Even if, however, the Court were to

consider all of these sources, the Court would still find the Defendant

entitled to qualified immunity based on the case law.

-App. 35acourts in this and other circuits routinely interpret such

actions as objectively reasonable evidence of resistance.

See, e.g., Boude v. City of Raymore, 855 F.3d 930, 933–34

(8th Cir. 2017) (qualified immunity does not depend on

whether the individual’s actions were “in fact” innocent

but, rather, “the key” is whether the officers reacted

reasonably to the circumstances as they appeared to the

officers) (emphasis in original); Ehlers, 846 F.3d at 1011

(8th Cir. 2017) (rejecting nonviolent misdemeanor

arrestee’s argument that he was not resisting “because he

at least appeared to be resisting”); Carpenter v. Gage, 686

F.3d 644, 650 (8th Cir. 2012) (when detainee

“characterize[d] his struggles [of neither remaining still

nor stopping moving while being handcuffed] merely as an

effort to breathe,” finding “even if [his] motive was

innocent, the [officers] reasonably could have interpreted

[his] actions as resistance and responded with an amount

of force that was reasonable to effect the arrest”); see also

Abbott v. Sangamon Cnty., 705 F.3d 706, 712 (7th Cir.

2013) (arrestee is not subdued if he “continue[s] to resist”

or “fail[s] to submit to the officer’s authority”); Bornstad

v. Honey Brook Twp., 211 F. App’x 118, 120 (3d Cir. 2007)

(in case involving prone resistance, finding the officers’

deadly force reasonable even when there was evidence

that the detainee stated he was “having trouble

breathing”); Giannetti v. Stillwater, 216 Fed. App’x 756,

760, 764 (10th Cir. 2007) (finding officers’ force reasonable

even though the restrained detainee indicated she could

not breathe and screamed that her lungs were collapsing,

rejecting the plaintiff’s argument that her physical

struggle and kicking resulted from panic when faced with

hampered breathing and possible suffocation).

Plaintiffs also point to the testimony from two inmates

who were in the holdover area at the time of this incident.

One inmate testified, “I didn’t hear him say help, but it was

-App. 36alike – basically like fighting.” (Doc. 77-3 at 13:9–14:18.) In

his initial witness statement, though, the inmate did not

indicate Mr. Gilbert said this. (Doc. 67-13 at 104.) Another

inmate, who Defendants assert was high on marijuana at

the time, testified as follows when asked if he heard what

Mr. Gilbert testified: “‘It hurt.’ I heard, ‘It hurts. Stop.’ I

heard – say ‘Ah.’ ‘Stop.’ ‘It hurt.’ ‘Oh, if – I was hurting.’ I

think it could have been the officer saying ‘Stop resisting’

or ‘Stop.’ I don’t know.” (Doc. 77-7, 20:9-21:18).13 Plaintiffs

argue that this testimony demonstrates Mr. Gilbert was

“yelling pleas for help” and pleading “It hurts. Stop.”

(Doc. 86 ¶¶ 11, 13.) Even assuming Mr. Gilbert made such

statements, this does not preclude summary judgment.

See, e.g., Bornstad, 211 F. App’x at 120 (officers’ deadly

force reasonable even when there was evidence that the

prone individual was “yelling out for help”); Giannetti, 216

Fed. App’x at 760 (force reasonable even when prone

detainee “moaned that ‘we’re killing her, that we’re

hurting her’ . . . said ‘stop, you’re hurting me’ . . . and

pleaded ‘please stop, oh, God, please.’”).

b. The Defendant Officers’ Restraint & Cause of Death

The parties also present different theories regarding

the level of force used by the Defendant Officers on

13

Plaintiffs also point to the testimony of one of the inmates who

stated in his deposition, but not in his initial witness statement, that

the Officers beat Mr. Gilbert up. This, however, was based on pure

speculation and assumption, as he could not actually see the events in

Mr. Gilbert’s cell. (Doc. 77-3 at 34:25–35:18; Doc. 86-1 at 32:24–33:4.)

Plaintiffs point to no testimony to corroborate this unsupported

testimony. Moreover, the cited cases support the conclusion that even

if an individual is in distress, summary judgment is not precluded. See,

e.g., Wagner v. Bay City, 227 F.3d 316, 321 (5th Cir. 2000) (officers

entitled to qualified immunity in case involving deadly, prone

restraint even when evidence suggested detainee was treated

roughly).

-App. 37avarious parts of Mr. Gilbert’s body. Defendants argue that

the Officers used the level of force necessary to restrain

Mr. Gilbert as he was continually resisting and did not use

asphyxiating pressure on his body. Plaintiffs argue that

the Officers “held down” Mr. Gilbert using asphyxiating

pressure, including on his back.

It is undisputed that the Defendant Officers applied

force to varying parts of Mr. Gilbert’s body. For example,

Officer Stuckey grabbed Mr. Gilbert’s left wrist while

attempting to handcuff him. Once Mr. Gilbert was

handcuffed, Officer DeGregorio grabbed Mr. Gilbert’s left

bicep and left wrist while Sergeant Bergmann grabbed his

right arm. After being kicked in the groin by Mr. Gilbert,

Officer Stuckey left and returned to doing paperwork.

Once Officer King arrived, he grabbed Mr. Gilbert’s

ankles. It was at this point that Mr. Gilbert’s legs were

shackled. Officer King then left. When Officer Mack

arrived to relieve Officer DeGregorio, Officer Mack took

control of Mr. Gilbert’s upper left arm.

It is undisputed that it was only after this point that

Mr. Gilbert was moved to a prone position. (Doc. 78 ¶ 75.)

After Mr. Gilbert was prone, Officer Opel controlled Mr.

Gilbert’s right side to protect his head from banging on

the concrete, Officer Cognasso put his knees on the back

of Mr. Gilbert’s calves, Officer Lemons placed his knee on

Mr. Gilbert’s leg, and Officer vonNida held Mr. Gilbert’s

arm or leg so he would not thrash about. They continued

to control him at his shoulders, biceps, and legs, and

Plaintiffs have proffered no evidence that the Officers

compressed Mr. Gilbert’s neck.

Plaintiffs argue, by pointing to testimony of some of

the Officers, that all of the Officers were “holding down”

Mr. Gilbert with their “weight” and that at least some of

the force was directed at Mr. Gilbert’s back. (See, e.g., Doc.

-App. 38a86 ¶¶ 14-15, 16, 33-34, 37-55.) For example, Plaintiffs point

to testimony that Officer Opal “took control of the subject

on the right side,” that Officer vonNida “kind of held [Mr.

Gilbert’s] side in place,” and that Officer Cognasso said

that, though he could not identify which Officers, there

were Officers at his upper right side and possibly a lower

or middle part of his torso. (Doc. 77-2 at 137, 167; Doc. 7711 at 20:12–19.)14

Plaintiffs also rely on the expert report of Dr. Diaz in

support of their argument, who opined that the restraint

included “the weight of the individuals being on him” while

Mr. Gilbert was prone and then stated a general

proposition that when “weight of the restrainers is applied

to the back, a cascade of events occur the most important

of which is a mechanical impairment of breathing that

leads to asphyxia.” Both parties do agree that forcible

restraint was one cause of death. They differ, however, in

assertions as to the main cause of death. In his expert

report, Dr. Diaz concluded that the main cause of death

should have been forcible restraint inducing asphyxia with

arteriosclerotic cardiovascular disease and amphetamine

as the underlying factors. (Doc. 74-6.) He opined that

pulmonary edema exhibited in the autopsy findings (fluid

on the lungs) resulted from asphyxiation. In his

deposition, he noted that the autopsy report showed

injuries, including “to the lower extremities and up to the

buttocks, and he had injuries that manifested as bleeding

into the left scapular area. That’s the left shoulder area.”

14

A review of various depositions reveals that Plaintiffs

characterize the Defendant Officers’ testimony of their actions under

the broad-brush term “holding down,” without regard to the specific

facts/testimony of the officers’ actions. Even assuming Plaintiffs’

version of the testimony, the Defendant Officers are still entitled to

summary judgment.

-App. 39a(Doc. 67-33 at 69:16–25.) However, when asked whether

he could tell where Officers exerted pressure on Mr.

Gilbert, Dr. Diaz testified that he could not tell. (Id. at 6733 at 68:22–24.)

This stands in contrast to the expert opinion of Dr.

Jane Turner, the forensic pathologist and medical

examiner who performed Mr. Gilbert’s autopsy. Dr.

Turner concluded that the manner of death was

accidental, further concluding that the cause of death was

arteriosclerotic cardiovascular disease, exacerbated by

methamphetamine and forcible restraint. Dr. Turner

disagreed with Dr. Diaz by ruling out asphyxiation in her

autopsy report, as she saw no evidence of asphyxiation,

such as petechial hemorrhages. (Doc. 67-32 at 29:18–30:3.)

Citing to literature, she concluded the large amount of

amphetamine along with the forcible restraint caused Mr.

Gilbert’s already significantly diseased heart to go into

arrhythmia, which explained the pulmonary edema. (Id.

33:13–24, 50:10–53:17.)

The Court will assume Plaintiffs’ version of facts as

true that at least some Officers used force at Mr. Gilbert’s

“sides” or torso or back or other parts of his body, and

even further that the cause of death was asphyxiation.

Still, the Court finds that summary judgment is not

precluded and that the Officers are entitled to qualified

immunity. As is discussed more below, multiple courts

have found similar force used to be objectively reasonable

even when applied upon various parts of the body,

including the back, while the detainee is restrained in a

prone position. And courts have ruled in favor of officers

even when the evidence suggested death by asphyxiation.

See, e.g., Pratt v. Harris Cnty., 822 F.3d 174, 178–79 (5th

Cir. 2016) (affirming summary judgment when force was

used upon back of prone, handcuffed individual whose legs

-App. 40awere restrained despite disagreement between experts

over cause of death); Hill v. Carroll Cnty., 587 F.3d 230,

232–37 (5th Cir. 2009) (restraining a resistant individual in

a hog-tie for thirty minutes was not unconstitutionally

excessive even when the plaintiff’s medical expert testified

specifically that the individual died from asphyxia, which

conflicted with the main cause of death noted in the

autopsy); Bornstad, 211 Fed. App’x at 121 (force used

upon resistant individual who was prone in handcuffs and

with feet bound did not violate the individual’s right to be

free from the use of excessive force even when expert

concluded main cause of death was compressional

asphyxia); Dyer v. Blankenship, No. 4:07-CV-02105-AGF,

2011 WL 1226941, at *8, 15 (E.D. Mo. Mar. 30, 2011) (force

objectively reasonable despite conflicting expert

testimony regarding whether asphyxia was a cause of

death resulting from individual in handcuffs and shackles

being restrained in the prone position by officers’ body

weight).

c. The Restraint in Relation to Mr. Gilbert’s

Breathing

Plaintiffs also argue in their responses to Defendants’

statement of material facts that the Officers “did not stop

pushing Mr. Gilbert down until after he stopped

breathing.” Defendants, on the other hand, argue the

testimony shows that Mr. Gilbert did not stop breathing

until he was re-positioned on his side, after he calmed

down and stopped resisting.

Sergeant Bergmann and Officers Cognasso, Lemons,

Mack, Opel, vonNida, and Wactor all assert that while Mr.

Gilbert was struggling against the officers on the floor, his

breathing did not appear abnormal. (See Doc. 78 ¶ 88.) For

example, Officer VonNida testified that once Mr. Gilbert

stopped actively thrashing and the Officers turned him

-App. 41aonto his side, it appeared to him that Mr. Gilbert was

holding his breath. After Mr. Gilbert was turned onto his

side, Officer vonNida observed Mr. Gilbert taking a deep

breath and then holding it in then exhaling after receiving

a sternum rub. (Doc. 67-9 at 16:9–17:13, 21:16–22:10.)

Officer Opel also testified that after Mr. Gilbert was

turned on his side, he seemed to be holding his breath and

his breathing became shallow (Doc. 67-7 at 21:16–22:21.)

Moreover, Officer Wactor testified that Mr. Gilbert’s

breathing was irregular once he was on his side. (Doc. 6710 at 24:2–10.) Officer Mack similarly testified that after

rolling Mr. Gilbert onto his side, he was calm, but his

breathing was growing increasingly erratic. (Doc. 67-6 at

20:22–21:5.) After monitoring his breathing, Officer Mack

testified that Mr. Gilbert was no longer a threat, so he

removed his handcuffs and rolled him onto his back. (Doc.

67-6 at 21:2–10.) Though Mr. Gilbert’s breathing was

increasingly erratic, Officer Mack checked for a pulse and

was able to find one. (Id. at 22:10-12.) At some point,

someone rolled Mr. Gilbert onto his back. Shortly after

Officer Mack was able to find a pulse, Mr. Gilbert stopped

breathing, causing Officer Mack to request the AED. (Id.

at 22:11–16.) (See also Doc. 78 ¶¶ 85, 88–92, 94.)

Plaintiffs admit that Officer Mack was able to find a

pulse as he so testified. (Doc. 78 ¶ 93.) They, however,

assert that the Officers “held Mr. Gilbert down and did not

get off of him” until after Mr. Gilbert stopped breathing.

(Doc. 86 ¶ 35.) In support of their argument, Plaintiffs

point to the testimony of one officer, Officer Lemons, who

testified, “When the resisting stopped, we stood up. I

noticed that he wasn't breathing” and “I can’t say what

officers were doing. All I know is when he stopped

breathing, we got up . . . [a]nd there was an officer

beginning doing CPR.” (Doc. 67-5, 15:9–16:18.) Saying the

Officers “got up” is not the same as saying they “held Mr.

-App. 42aGilbert down and did not get off of him” until he stopped

breathing.

Regardless, even accepting as true that Mr. Gilbert

remained restrained and in a prone position until he

stopped breathing, and as will be further discussed below,

the Officers would still be entitled to qualified immunity

for it was not clearly established that this violated a

constitutional right. See, e.g., Gunter v. Twp. of

Lumberton, 535 F. App’x 144, 146, 148 (3d Cir. 2013) (force

was objectively reasonable even when individual, who was

restrained in handcuffs attached to leg restraints, was left

by officers in prone position until he stopped breathing);

Giannetti, 216 Fed. App’x at 760 (force was objectively

reasonable even though officers used restrained detainee

in handcuffed, prone position until to the point where she

was unresponsive); Abbey v. City of Reno, No. 3:13-CV0347-LRH-VPC, 2015 WL 13547828, at *3 (D. Nev. Mar.

30, 2015), aff’d, 690 Fed. App’x 538, at*3 (9th Cir. 2017)

(officers’ use of force against resisting individual, who was

having a mental crisis, reasonable even though individual

stopped breathing soon after multiple officers released

their hold on individual while he was still in prone position

with feet restrained and tied to the handcuffs); Dyer, 2011

WL 1226941, at *6-7 (officers’ use of asphyxiating force

reasonable when individual did not appear to be breathing

while prone in handcuffs and leg shackles and still being

physically restrained with weight of officer on his back);

Williams v. Chambers, No. 4:07-CV-01409-ERW, 2010

WL 481299, at *8 (E.D. Mo. Feb. 5, 2010) (officers’ use of

deadly force objectively reasonable when individual

became unresponsive and ashen while still being

physically restrained in prone position by officers’ body

weight).

-App. 43a2. The Pre-Existing Law: The law did not clearly

establish in December 2015 that the use of prone

restraint in this context constituted excessive

force.

With this factual predicate in mind, the question before

the Court, then, is whether the Defendant Officers

violated clearly established law in using force on different

parts of Mr. Gilbert’s body in the manner in which they

did while Mr. Gilbert was apparently resisting and bound

and shackled in a prone position, resulting in asphyxiation.

The Court finds that excessive force cases involving the

use of prone restraint did not provide the Defendant

Officers with fair and clear warning that positioning and

restraining Mr. Gilbert in the prone position as he

continually resisted was unconstitutionally excessive as of

December 2015. Therefore, the Officers are entitled to

qualified immunity.

a. Pre-Prone Restraint

The Court will first address the Officers who used

force on Mr. Gilbert while he was kneeling across the

concrete bench inside the cell. Plaintiffs argue broadly in

their Memorandum in Opposition to this Motion that the

“right to be free from asphyxiating, prone restraint was

clearly established.” (Doc. 79 at 8.) They continue to focus

on the positioning of Mr. Gilbert, further arguing, by

pointing to case law, that “holding down a handcuffed,

prone subject is dangerous and unreasonable,” “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,” and “putting pressure on a handcuffed individual

in the prone position amounts to excessive force.” (Doc. 79,

9-10.) As set forth above, it is undisputed that some of the

Officers only used the allegedly excessive force before Mr.

-App. 44aGilbert was in the prone position, namely Officers

Stuckey, DeGregorio, King, and Sergeant Bergmann.15

Plaintiffs do not dispute that Mr. Gilbert was moved to a

prone position on the ground after some of the Officers

had stopped using restraint and left. (Doc. 78 ¶ 75.) Officer

Stuckey left the cell after being kicked in his groin area,

which was after Mr. Gilbert was handcuffed but before his

legs were shackled. Officer DeGregorio was relieved by

Officer Mack before Mr. Gilbert was moved into a prone

position, and Officer King left to return to his regular

duties right after Mr. Gilbert’s legs were shackled.16

Importantly, all of these actions occurred while Mr.

15

Plaintiffs broadly suggest that all of the Officers, including

those Officers only present toward the beginning, were “holding

down” Mr. Gilbert’s back. Plaintiffs point specifically to the testimony

of Officer DeGregorio, who testified he “kept [his] right hand on [Mr.

Gilbert’s] back to remain control of him as he still continued to fight

and wriggle.” (Doc. 77-2 at 7.) They also point to the testimony of

Officer King, who testified he saw Sergeant Bergmann “lean over the

top of Nicholas Gilbert.” (Doc. 77-2 at 120.) Considering Mr. Gilbert’s

erratic behavior, initial struggle, and continued resistance, this

application of pressure was reasonable under the circumstances.

Williams, 2010 WL 481299, at *13 (rejecting the plaintiff’s suggestion

that the officers were laying or otherwise on top of him and instead

finding officers’ use of hands to hold down subject was reasonable

given arrestee’s “erratic behavior” and continued resistance); Dyer,

2011 WL 1226941, at *15 (straddling arrestee’s back was reasonable

considering arrestee’s initial struggle and continued resistance). The

law was not clearly established that this violated a constitutional right.

16

Although the timing is not exact, the undisputed facts

demonstrate Sergeant Bergmann, who was relieved by Officer Opel

after Mr. Gilbert was moved into a prone position, soon thereafter

stepped out of the cell and off to the side. (Doc. 67-2 at 44:14–45:25.)

Regardless, it is undisputed that when Officer King testified he saw

Sergeant Bergmann “lean over” Mr. Gilbert—to the extent there was

even any contact made—Mr. Gilbert was kneeling over the bench, not

in the prone position.

-App. 45aGilbert was not in the prone position. Instead it is

undisputed that, at this time, he was kneeling over a

bench.

To be prone means lying flat or lying face downwards

on one’s belly. Oxford English Dictionary Online,

http://www.oed.com/view/Entry/152519,

https://en.oxforddictionaries.com/definition/prone

(last

visited November 12, 2018). One of Plaintiffs’ own exhibits

includes drawings of detained individuals in the prone

position as lying completely flat. (Doc. 78-11, at 3, 5.) Mr.

Gilbert was not lying flat while kneeling over the bench.

Plaintiffs have not pointed the Court to cases that

support an argument that it violates an individual’s clearly

established right when such force (even assuming some

force was upon the back) is applied to a non-prone,

kneeling detainee. Rather, the law allows officers to hold

down a resistant subject, even using their body weight, in

order to gain control. See, e.g., Ryan v. Armstrong, 850

F.3d 419, 427–28 (affirming summary judgment when

multiple officers restrained prone, resisting detainee in

jail cell using body weight, including weight on the

detainee’s back); see also Risdal v. Nixon, 589 Fed. App’x

801, 803 (8th Cir. 2014) (concluding the force used to

handcuff and restrain inmate was objectively reasonable,

in light of his aggressive behavior, when individual was

brought “under control by taking him to the ground, and

during the struggle, [he] struck his head on a chair”). In

fact, the Eighth Circuit has upheld the use of arguably

severe force when officers are attempting to restrain a

resisting subject. See, e.g., De Boise v. Taser Int’l, Inc.,

760 F.3d 892, 897–98 (8th Cir. 2014) (“emotionally

disturbed” individual’s right to be free from multiple,

ultimately deadly, tasings when he assumed a fighting

stance as officers approached him and continued to resist

-App. 46aarrest not clearly established); Winters v. Adams, 254

F.3d 758, 761, 763–65 (8th Cir. 2001) (rejecting argument

that officers should have just “walk[ed] away” from

individual who was “acting strangely,” agitated, under the

influence of methamphetamine, and otherwise “erratically

behaving” in light of “community caretaking functions of

police officers,” and instead holding that district court

erred in finding excessive force when officer punched

individual in the eye who continued to resist); Mann v.

Yarnell, 497 F.3d 822, 824, 826 (8th Cir. 2007) (when

arrestee refused police orders to lie flat on his stomach,

twisted, and otherwise continued to resist, finding it was

reasonable to apply force against arrestee’s neck, use hold

maneuver on legs, and use a canine to bite arrestee to

bring non-compliant arrestee under control). These

Officers, therefore, are entitled to qualified immunity.17

b. Prone restraint.

Moreover, for the reasons discussed below, the result

does not change for the remaining Officers, Wactor, Mack,

Opel, Cognasso, Lemons, and VonNida. For example,

Plaintiffs point to testimony indicating that Officers

Wactor, Lemons, and Cognasso restrained Mr. Gilbert’s

legs. (Doc. 86 ¶¶ 45, 51, 55.) However, Plaintiffs do not

point to any law demonstrating that the mere act of

shackling an individual’s legs while in the prone position

violates a clearly established right. Moreover, even if the

17

Even considering these Officers’ actions in combination with the

other Officers’ actions, Ryan, 850 F.3d at 428, the Court still finds the

Officers are entitled to qualified immunity based on the additional

case law discussed infra. Moreover, even assuming that Mr. Gilbert

was “prone” while kneeling over the bench, the Court would still find

that those Officers are entitled to summary judgment, as it was not

clearly established as of December 2015 that their actions violated a

constitutional right based on the case law discussed below.

-App. 47atestimony that some Officers were restraining Mr.

Gilbert’s sides, biceps or shoulders, or were at his torso

area indicate that some Officers applied force to Mr.

Gilbert’s back while in the prone position, there is no

robust consensus of persuasive authority that the use of

force under the circumstances of this case violated a

clearly established right. Courts have found that it is

reasonable to hold down various parts of an individual’s

body, including the back and torso areas, even when the

individual is prone. See, e.g., Williams, 2010 WL 481299,

at *13 (lying on torso of handcuffed, prone individual “does

not make the force unreasonable, considering the initial

struggle and [the individual’s] continued resistance”);

Dyer, 2011 WL 1226941, at *15 (straddling back of

restrained, prone individual “does not make the force

unreasonable considering [the officers’ initial struggle

[with the individual]” and the individual’s continued active

resistance); Pratt, 822 F.3d at 178–79 (5th Cir. 2016)

(affirming summary judgment when force was used upon

back of prone, handcuffed individual whose legs were

restrained); Bussey-Morice v. Kennedy, 657 Fed. App’x

909, 911 (11th Cir. 2016) (officers entitled to qualified

immunity when they pinned, held down, or used pressurepoint techniques on various parts individual’s body,

including the upper torso); Giannetti, 216 Fed. App’x at

760 (force used against prone, handcuffed, and resisting

misdemeanor detainee was reasonable when several

officers “held her legs, arms, head, and back down” put

hands on her shoulder blades, restrained her legs in a

figure-four restraint, placed a knee toward her middle

back, placed a calf across her head, and placed a knee on

her shoulder); Wagner v. Bay City, 227 F.3d 316, 319 (5th

Cir. 2000) (force used was reasonable even when there was

testimony that an officer put his shin across a handcuffed

and prone individual’s back and that another officer

-App. 48aobserved two other officers “on top of” the restrained

individual).

The Court will now turn to a more detailed discussion

of the cases relied upon by the parties.

c. The Eighth Circuit has found the use of prone

restraint to control a non-compliant, resistant subject

to be reasonable.

The Eighth Circuit recently held—in a case with

factual similarities to this case and relied upon by

Defendants—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. Ryan v. Armstrong,

850 F.3d 419, 427 (8th Cir. 2017). In that case, the Eighth

Circuit specifically ruled on whether “the placing of body

weight on [the detainee] while he was on the ground in a

prone position” was excessive. Id. at 427. The detainee in

that case was in jail on a minor offense, outstanding traffic

warrants, and appeared to be under the influence of drugs.

Id. at 423. He “exhibited strange behavior” and “was

behaving oddly,” including making odd “lunging” and

“animal-like” movements inside of the cell and banging on

his cell. Id. Concerned about this erratic behavior, and

after medical staff determined he needed to be removed

from his cell to be assessed, a team of officers went to his

cell to remove him. Id. Six officers, in total, were in his cell

trying to restrain the detainee. Ryan v. Armstrong, 154 F.

Supp. 3d 798, 804–05 (D. Minn. 2016). When directed to

comply, the detainee initially resisted and continued

actively resisting. Ryan, 850 F.3d at 424. Several officers

went into the cell, held the detainee down while

attempting to place his wrists and ankles in restraints, and

used a taser. Id. While their weight was still on the

detainee’s back, the officers succeeded in handcuffing him

-App. 49aand shackled his ankles with his legs crossed and bent at

the back of the knees. Id. at 424, 429. Approximately five

minutes after the officers entered the cell, the detainee

was no longer responsive. Id. at 424.

On these facts, the Eighth Circuit found the district

court did not err in granting qualified immunity to the

multiple officers on the excessive force claim. Id. at 428.

Among the facts “most important” to the Eighth Circuit’s

conclusion was that the detainee actively resisted at the

beginning of the encounter and continued to actively resist

the officers’ efforts to subdue him. Id. The court also

pointed to the fact that the encounter lasted no more than

five minutes, with body weight being used for three

minutes, and the autopsy did not show any significant

injury or trauma, although the autopsy did note that the

death occurred during restraint. Id.

The Defendant Officers in this case similarly

encountered an erratically behaving, persistently

resistant detainee and attempted to and ultimately did

restrain him inside of the confines of a jail cell by

restraining various parts of his body. Four Officers

initially attempted to restrain Mr. Gilbert before he was

put prone on the ground, and, after being relieved at

various points in time, six Officers used force to restrain

Mr. Gilbert. Ryan suggests, therefore, that the Officers’

conduct did not violate Mr. Gilbert’s Fourth Amendment

rights, even if some force was used upon Mr. Gilbert’s

back.

The parties dispute how long Mr. Gilbert was in prone

position after he was handcuffed and leg shackled. (Doc.

86 ¶¶ 31.) While it is not possible to determine from the

record exactly how long Mr. Gilbert was prone,

Defendants assert the total amount of time was less than

ten minutes, while Plaintiffs assert it was up to fifteen

-App. 50aminutes.18 (Id.) Since the Ryan court did discuss the

length of prone force as one part of its analysis, the Court,

out of an abundance of caution, will review persuasive case

law.

Since the Court finds there is no controlling Eighth

Circuit authority placing the question beyond debate, the

Court must look to whether Plaintiffs can show there is a

robust consensus of such persuasive authority. De La

Rosa, 852 F.3d at 745–46. The Court finds that a review of

persuasive case law cited by both parties demonstrates a

lack of consensus.

d. Multiple courts within this circuit have found that

an officer’s restraint of a handcuffed or shackled

individual in the prone position is reasonable under

facts similar to this case.

Two cases decided in this district are constructive. In

Williams v. Chambers, cited by Defendants in its briefing

on the clearly established argument, the court granted

summary judgment in the defendant officers’ favor when

deadly prone force was used. Williams v. Chambers, No.

4:07-CV-01409-ERW, 2010 WL 481299, at *16 (E.D. Mo.

Feb. 5, 2010). In that case, the officers encountered an

individual along a highway who was under the influence of

cocaine and exhibiting agitated, erratic behavior. Id. at

*2–3, 9. The officers attempted to restrain the individual

by handcuffing him, but the individual repeatedly resisted

and failed to comply, moving uncontrollably and flailing

around, prompting the officers to use pepper spray. Id. at

*4–5. Once the subject was prone on the pavement, the

18

Defendants’ timeline of events is supported by the undisputed

timing of the calls to EMS and other undisputed facts. Regardless,

the Court accepts Plaintiffs’ argument that Mr. Gilbert was

restrained prone for fifteen minutes for purposes of ruling on this

Motion.

-App. 51aofficers used their body weight to restrain his feet, lower

extremities and upper body, “holding him down with their

hands,” rendering the officers “exhausted.” Id. at *5–6.

Once the officers succeeded in handcuffing him, the

officers restrained the individual in a variety of ways while

he was lying prone, including using their body weight to

hold down his feet, knees, and upper body and “chest area

of his back.” Id. at *6. The individual ceased struggling

and stopped resisting at one point, but he resumed

resisting, prompting the officers to continue to restrain his

upper body area, legs, and ankles. Id. at *6–8. The officers

kept him the individual in handcuffs even after he

subsequently stopped moving while he was lying prone.

Id. at *8. While the exact timeline is not clear, dispatch

calls suggest he was in the prone position for

approximately just under fifteen minutes. See id. at *5, 8.

After turning him over, the officers noticed the subject

was non-responsive and having trouble breathing. Id. The

individual ultimately passed away soon after these events.

Id. at *9. Even though there was evidence, conflicting at

times, that force was applied directly to the individual’s

back, the court nonetheless held that “this evidence does

not make the force used unreasonable, considering the

struggle and continued resistance.” Id. at *13. Citing to

cases from other circuits involving prone restraint and

asphyxia where those courts found the force used to be

reasonable, the court held that, under these

circumstances, the force used was objectively reasonable.

Id. at *14.19

In Dyer v. Blankenship, another court in this district

similarly granted summary judgment in the defendant

officers’ favor when deadly prone force was used. Dyer v.

19

Some of the cases relied on by the Williams court are the same

cases relied on by Defendants.

-App. 52aBlankenship, No. 4:07-CV-02105-AGF, 2011 WL 1226941,

at *1 (E.D. Mo. Mar. 30, 2011). In attempting to take a

resisting individual into custody, the officers placed him in

a prone position while he was first handcuffed and then

also leg shackled. Id. at *4–5. The court noted there was

conflicting testimony regarding whether one officer was

lying over the detainee’s back while handcuffed, and the

court also noted there was conflicting testimony whether

the detainee ceased struggling once the leg shackles were

applied. Id. at *5, 6. It was undisputed that, at one point,

an officer did place his knee in the small of the detainee’s

back after he was handcuffed and shackled. Id. at *6. After

the suspect was calm, the officers stood up but noticed the

detainee, who was still prone in handcuffs and leg

shackles, did not look well. Id. at *7. By the time the

officers turned him over, he did not appear to be breathing

and had only a weak pulse. Id. at *8. The autopsy listed

the cause of death as an accident due to excited delirium

associated with cocaine and methamphetamine. Id. at *8.

Plaintiff, however, disputed the results, as the medical

examiner also reported “petechial hemorrhages of the

lungs,” which Plaintiffs alleged was a sign of asphyxia. Id.

In so opposing summary judgment by challenging the

cause of death, Plaintiffs relied on their expert’s

conclusion. No. 4:07-CV-02105-AGF (E.D. Mo. Oct. 11,

2011), ECF No. 142.20 Despite the expert opinion and

autopsy evidence suggesting asphyxia was the cause of

death, the court found the force was objectively

20

The defendants moved to exclude that testimony, arguing the

expert’s opinions were unsupported by scientific study, speculative,

and inadmissible. No. 4:07-CV-02105-AGF (E.D. Mo. July 12, 2010),

ECF No. 105. The court summarily denied that motion, and, thus,

considered that opinion while ruling on the motion for summary

judgment. No. 4:07-CV-02105-AGF (E.D. Mo. Aug. 27, 2010), ECF

No. 131.

-App. 53areasonable, considering in part that the detainee

continually resisted. Dyer, 2011 WL 1226941, at *15. Even

though the detainee stopped struggling while handcuffed

and shackled in the prone position, the court found this

evidence did not make the force unreasonable, considering

the short amount of time between when the detainee

stopped struggling and when he thereafter stopped

breathing. Id.

Williams and Dyer demonstrate that the Defendant

Officers in this case did not violate clearly established law

by using force on Mr. Gilbert in the prone position.

Likewise, here, the Officers encountered an erratically

behaving individual with drugs in his system who had

apparently attempted suicide, and each of the Officers was

met with resistance while attempting to restrain him. Like

in those cases, the Officers applied force to various parts

of the body of an individual who was in handcuffs and leg

shackles or both. As in those cases, the Defendant

Officers’ use of force was reasonable given Mr. Gilbert’s

struggle and continued resistance both before and after he

was on the ground in the prone position. See also Mayard

v. Hopwood, 105 F.3d 1226, 1227–28 (8th Cir. 1997)

(placing prone detainee, who was kicking and otherwise

struggling with officers, in hobble restraint was

objectively reasonable “particularly . . . in light of [the

detainee’s] resistance”).

Moreover, even assuming that Officers Wactor, Mack,

Opel, Cognasso, Lemons, and vonNida did not stop using

force until after they realized Mr. Gilbert had stopped

breathing, the Officers’ testimony demonstrates that any

time period between when Mr. Gilbert stopped struggling

and thereafter stopped breathing was short. (See, e.g.,

Doc. 67-7 at 21:16–23:1; Doc. 67-9 at 18:3–12, 23:11–17.)

Plaintiffs put forth no evidence to controvert that timeline.

-App. 54aSee Mann v. Yarnell, 497 F.3d 822, 827 (8th Cir. 2007)

(when non-movants rely on “[m]ere allegations,

unsupported by specific facts or evidence beyond the

nonmoving party’s own conclusions, . . . [they cannot]

withstand a motion for summary judgment.”) (internal

citations and quotations omitted). In this context,

“[e]vidence that [an individual with handcuffs and leg

shackles in the prone position] stopped struggling,

therefore, does not make the force unreasonable

considering the short amount of time between when [the

individual] stopped struggling and when he thereafter

stopped breathing.” Dyer, 2011 WL 1226941, at *15.

e. Other Circuit Courts of Appeal have similarly found

the use of asphyxiating prone restraint to control a

resistant, non-compliant subject to be reasonable,

even when force is applied to various parts of the body,

including the back.

In addition to in-circuit case law, case law from other

circuits, cited by Defendants in their clearly established

argument, supports the conclusion that the Officer

Defendants did not violate clearly established law.

— The Tenth Circuit held that applying force upon the

legs, arms, hands, and back of a handcuffed, misdemeanor

detainee while in the prone position for nearly twenty

minutes, resulting in death, was not unreasonable.

Giannetti v. Stillwater, 216 Fed. App’x 756, 758, 759 n.3,

760 (10th Cir. 2007). The mentally ill detainee was in jail

and being booked for a minor offense, when she refused to

put on a jumpsuit as requested. Id. at 758–59. Due to her

continued resistance, the officers handcuffed her and put

her facedown in the prone position to try and remove her

pantyhose before putting on the jumpsuit. Id. at 759–60.

“During the nearly twenty minutes [the detainee] lay

prone,” multiple officers struggled inside a haz-mat room

-App. 55ato put on her jumpsuit. Id. “During the majority of that

time,” the detainee struggled with the officers by kicking

and otherwise moving her body around. Id. And during

this time, the officers “held her legs, arms, head, and back

down in an effort to keep her from moving,” put hands on

her shoulder blades, restrained her legs in a figure-four

restraint, placed a knee toward her middle back, placed a

calf across her head, and placed a knee on her right

shoulder. Id. at 760. Two officers testified she expressed

“at least twice during the struggle that she was having

difficulty breathing by ‘scream[ing] that her ‘lungs were

collapsing’ and at least once indicated that ‘she couldn’t

breathe.’” Id. (alterations in original) Two officers also

testified that she “moaned that ‘we’re killing her, that

we’re hurting her’ . . . said ‘stop, you’re hurting me’ . . . and

pleaded ‘please stop, oh, God, please.’” Id. After the

officers were partially successful in putting on the

jumpsuit, they asked the detainee to sit up, but she did not

respond. Id. She remained handcuffed and partially on her

stomach. Id. After a short amount of time, she did not

appear to be breathing and her lips were “bluish,” and she

was turned on her back. Id. At that point, the officers

began CPR and called for an ambulance. Id. The medical

examiner’s autopsy listed asphyxia as one cause of death.

Id. at 761.

On these facts, the court found the officers’ use of force

to be reasonable, despite the plaintiff’s arguments that her

struggling and kicking resulting from her fear of

suffocation and that the officers should have taken her

mental illness and aberrant behavior into account. Id. at

764. The court reasoned that the detainee continued to

struggle and kick, concluding “that the officer’s continued

use of force, although perhaps not the least intrusive

choice they could have made, was not unreasonable in

response to her escalating opposition.” Id. at 765–66.

-App. 56a— The Third Circuit upheld the use of asphyxiating

prone restraint involving a resistant, non-compliant

arrestee. Bornstad v. Honeybrook Twp., 211 Fed. App’x

118 (3d Cir. 2007). In attempting to subdue the arrestee,

an officer pressed a knee into his chest. Id. at 120. At one

point, a witness heard the arrestee yell out “for help” and

state he was “having trouble breathing.” Id. When backup

officers arrived, the several officers turned the arrestee

over onto his stomach to eventually handcuff him behind

his back and tie his feet together. Id. at 121. When they

attempted to move him to the police vehicle, the officers

noticed he was not breathing. Id. The officers’ efforts to

revive the individual were unsuccessful, and the individual

was pronounced dead at the hospital. Id. The total length

of the encounter was “substantial,” lasting for over two

hours. Id. at 123. The autopsy reports and death

certificate listed asphyxia as the cause of death.21 Id. at

121. Despite the fact that there were discrepancies

between the officers’ accounts and the medical experts’

testimony and findings, the district court found that, even

assuming the officers’ actions caused asphyxia, the

officers acted reasonably. Id. at 122. The Third Circuit

affirmed summary judgment, pointing to the “resistance

that [the individual] mounted throughout” the encounter,

and distinguishing cases where the plaintiffs became

compliant after they had been handcuffed and shackled.

Id. at 123–25.

21

In Bornstad, the district court refused to exclude testimony

from the plaintiff’s forensic expert that the proper cause of death was

asphyxia. Bornstad v. Honey Brook Twp., No. C.A.03-CV- 3822, 2005

WL 2212359, at *10–11 (E.D. Pa. Sept. 9, 2005). The district court

nonetheless found the officers’ use of force was objectively

reasonable, id. at *13-19, and the appellate court affirmed.

-App. 57a— The Third Circuit also upheld prone resistance in

another case, finding that attaching a resistant suspect’s

leg restraints to his handcuffs was reasonable because the

suspect “repeatedly kicked the officers after his hands

were [handcuffed]” and then “continued to kick at the

officers even after his legs were tied together.” Gunter v.

Twp. of Lumberton, 535 F. App’x 144, 146, 148 (3d Cir.

2013). After being restrained, the individual was “placed

face down on the ground” and remained prone until

“officers observed that [he] was not breathing.” Id. at 146.

In finding the officers’ actions objectively reasonable,

despite the fact that the parties disputed whether he was

restrained in the prone position for 10 to 15 minutes or

less,22 the court focused on the fact that the individual

“repeatedly kicked” and otherwise resisted even after his

hands and legs were restrained. Id. at 148.

— The Fifth Circuit Court of Appeals affirmed

summary judgment when multiple officers placed a

sporadically resisting and handcuffed arrestee in the

prone position, restrained his legs, placed a knee on his

back to maintain compliance, and used a hobble restraint

(handcuffs that attach to an arrestee’s ankles) to “hog tie”

him,23 resulting in his death. Pratt v. Harris Cnty., 822

22

Plaintiffs argued that officers restrained the suspect in the

prone position with his cuffed hands attached to his leg restraints for

10 to 15 minutes. Brief for Appellant, Gunter v. Twp. of Lumberton,

2011 WL 9820200, at *11 (3rd Cir. 2011) (No. 12-3146). The district

court found the encounter “rendered the officers physically

exhausted.” Gunter v. Twp. Of Lumberton, No. CIV. 07-4839

NLH/KMW, 2012 WL 2522883, at *8 (D.N.J. June 29, 2012).

23

“Hog-tying” is a controversial restraint and is considered to be

more extreme than just placing someone in handcuffs and shackling

their legs. See, e.g., Cruz v. City of Laramie, 239 F.3d 1183, 1188–89

(10th Cir. 2001) (collecting cases describing evidence of the danger of

the hog-tie restraint).

-App. 58aF.3d 174, 178–79 (5th Cir. 2016). The individual was placed

under arrest after the officers witnessed him erratically

behaving after a minor single-vehicle traffic accident. Id.

at 178. The officers initially had to use force and multiple

tasings to try and gain control of the individual, who was

kicking and otherwise resisting at times after being

handcuffed but before he was in the prone position. Id.

Once he was in the prone position, with his hands cuffed

and legs restrained by the force of the officers, force was

applied to his back. Id. While still in the prone position, the

officers were able to place a hobble restraint on his legs,

and he stopped resisting. Id. at 78–89. After the individual

stopped resisting, the officers then “hog tied” him by

connecting his handcuffs to the hobble restraint. Id. at

179. Even though he had ceased resisting, he was

maintained in the hog tie in the prone position until EMS

arrived, at which point he did not have a pulse, ceased

breathing, and ultimately passed away. Id. Plaintiff’s and

defendants’ experts disagreed as to the cause of death,

with plaintiff’s expert citing to injuries noted in the

autopsy report and concluding the death was

multifactorial. Id. On these facts, the court found the

district court did not err in granting qualified immunity,

reasoning the force was not excessive because the

individual resisted, the officers were unaware specifically

that he was under the influence of a substance, and he was

restrained for a brief period.24 Id. at 184.

— That was not the first time the Fifth Circuit upheld

the use of ultimately deadly force upon a restrained, prone

individual. In Wagner v. Bay City, the court held that the

24

The appellate court does not note the length of time, but the

entire encounter appears to have lasted for about ten minutes. See

Pratt v. Harris Cnty., No. CV-H-12-1770, 2015 WL 224945, at *1–3

(S.D. Tex. Jan. 15, 2015).

-App. 59aofficers’ actions were objectively reasonable even though

arrestee, who had resisted arrest, stopped breathing and

died after officers sprayed him with pepper spray, placed

him face down on pavement to handcuff him, placed a shin

across his back to hold him down, were positioned “on top

of him,” and placed him on his stomach in patrol car to

transport him to jail even after he had stopped struggling.

227 F.3d 316, 318–19 (5th Cir. 2000). The court

acknowledged that there were “inconsistenc[ies] in the

sequence of events,” “some question as to how long the

defendants held [the individual] on the ground,” “how

roughly they treated him,” and whether the individual was

“struggling” before they handcuffed him in the prone

position. Id. at 321. Nevertheless, the court reversed the

district court’s denial of summary judgment based on

qualified immunity, declining to second-guess the officers’

split-second decisions and finding the officers’ actions

reasonable in the context of the situation that the detainee

created. See id. at 321, 324.

— The Eleventh Circuit also found ultimately deadly

force did not violate a clearly established right when

multiple officers used their body weight to subdue a prone

and ultimately handcuffed individual who was having a

mental crisis and resisting. In that case, officers were

called to a hospital to assist in subduing a man who was

suffering from a mental health crisis. Bussey-Morice v.

Gomez, 587 Fed. App’x 621, 622 (11th Cir. 2014) (BusseyMorice I). When four officers initially arrived on the

scene, the individual assumed what the officers

interpreted as a threatening stance and refused to comply

with their orders. See id. at 623. After multiple tasings

were unsuccessful and a fifth officer arrived on the scene,

the officers went “hands on,” restraining his legs and

attempting to “pin [him] down” as he fought and struggled

against the officers. Id. at 623–24. After a prolonged

-App. 60astruggle, six officers were able to get him handcuffed. Id.

at 624. Once handcuffed and in the prone position, the

individual continued to struggle against multiple officers

by kicking and preventing them from gaining control over

his body. Bussey-Morice v. Kennedy, 657 Fed. App’x 909,

911 (11th Cir. 2016) (Bussey-Morice II). While in the

prone position and handcuffed, another officer “joined the

other officers,” grabbed the individual’s feet, “mov[ed] up

[the individual’s] body in order to gain control of his upper

torso,” used a knee to hold his head, used additional

pressure-point techniques to gain compliance, and placed

a pillowcase over his head. See id. The officers then placed

him on a gurney in a four- point restraint, and it was later

discovered that he was not breathing. Bussey-Morice I,

587 Fed. App’x at 625. Because the officer’s actions were

“measured as to the degree of resistance,” the court could

not “find, that as a matter of obvious clarity,” the officer

violated the individual’s Fourth Amendment rights; thus,

the officer’s conduct did not violate a clearly established

right and were entitled to qualified immunity. BusseyMorice II, 657 Fed. App’x at 914–15; Bussey-Morice I, 587

Fed. App’x at 629 (officers entitled to summary judgment

for tasing).

The Court finds that Mr. Gilbert’s case has many

similarities to the cited cases. Like in these cases, the

Defendant Officers were met with a resisting subject and

each Officer used force, as described previously, on

different parts of Mr. Gilbert’s body after he was in

handcuffs and leg shackles in the prone position. Even

assuming that Mr. Gilbert was having a mental health

crisis, that he was in the prone position for fifteen minutes,

that Officers used force upon his back at times in addition

to his extremities, that Mr. Gilbert did not stop breathing

until they “got up,” and that he died from asphyxiation, in

finding the force used reasonable under these types of

-App. 61acircumstances, these cases establish that none of the

Officers violated a clearly established right.

While all of these cases, combined, inform the Court’s

decision, the Court finds Giannetti to be particularly

instructive, as it is strikingly similar to this case in many

respects. Both cases involve prone restraint used against

individuals exhibiting mental disturbances after being

booked for a minor offense. In Giannetti, the officers were

merely trying to get the jailed detainee to put on a

jumpsuit; here it is undisputed that the Officers were

responding to Mr. Gilbert’s attempted suicide. In both

cases, multiple officers were involved in restraining the

detainees inside of a space within a secured facility. In

both cases, the detainees were restrained in the prone

position while handcuffed and their feet were restrained

for a period lasting approximately the same time. In both

cases, the detainees fought the restraint. And, accepting

Plaintiffs’ version of facts as true, in both cases multiple

officers used force upon various parts of the jailed

detainees’ bodies including the back until the individual

stopped resisting and breathing, ultimately dying from

asphyxiation. Like in Giannetti, even accepting that the

Defendant Officers’ use of force was not the “least

intrusive choice they could have made,” the Officers did

not violate a right that was clearly established. In other

words, even construing the facts in the light most

favorable to Plaintiffs, the Officers are entitled to qualified

immunity.

f. Plaintiffs’ non-controlling case law involving

asphyxiating, prone restraint demonstrates a lack of

a robust consensus in the case law.

Plaintiffs cite to no controlling case law in support of

their arguments on the clearly established prong. They do

not cite any case law establishing that use of force upon a

-App. 62anon- prone/kneeling individual violates a clearly

established right. Plaintiffs rely on several cases where

other Courts of Appeal have found the use of prone force

to be unreasonable. Plaintiffs argue that given this case

law, any reasonable officer should have known that the

force was unnecessary and extremely dangerous. (Doc. 79

at 11.)25 Though those cases involve similar facts, the

Court finds that the facts of the cases are not sufficiently

aligned and are, therefore, distinguishable. See De Boise

v. Taser Int’l, Inc., 760 F.3d 892, 897 (8th Cir. 2014)

(holding the law was not clearly established when

illustrative cases are not sufficiently aligned). Thus, these

cases do not “squarely govern” the specific facts at issue

in this case.

25

In addition to the case law, Plaintiffs point to other nondecisional authority in their arguments. (See, e.g., Doc. 79 at 11.) Even

assuming that courts in the Eighth Circuit would entertain such

authority in their analysis, the Court finds that such non-decisional

sources would not alter the outcome of this case. As the Court

discusses, the case law is split over whether the type of force used in

this case violated a clearly established right. As such, the issue is not

beyond debate. Moreover, while Plaintiffs cite to articles suggesting

that prone restraint is unacceptable, Defendants have, for example,

proffered an article published in the Forensic Research &

Criminology International Journal entitled “A Prospective Analysis

of the Outcomes of Violent Prone Restraint Incidents in Policing.”

(Doc. 86-5.) In that article, the researchers conclude that prone

restraint is safe and the preferred position for combative individuals,

that the prone position does not necessarily create an adverse medical

outcome, and that the likelihood of any injury is correlated with the

degree of resistance and behaviors of the subject. (See id.) Even if the

Court were to take judicial notice of Plaintiffs’ and Defendants’

authority, this would lend further support to the Court’s conclusion

that there is no robust consensus, as the non-decisional authority is

split, too.

-App. 63aFor example, Plaintiffs cite Weigel v. Broad, 544 F.3d

1143, 1147 (10th Cir. 2008). In addition to not being

binding precedent on this Court, the Tenth Circuit case is

also distinguishable from the present case. In Weigel, an

opinion by a divided court, the officers encountered an

emotionally disturbed individual who resisted arrest. Id.

at 1148. Once handcuffed, the individual continued to

struggle, so the officers “[laid] across the back of [the

arrestee’s] legs,” applied pressure to his upper body,

including his neck and shoulders, by using hands and

knees, and an officer straddled the arrestee’s upper thighs

and buttocks and held his hands in place while a bystander

tried to apply leg bindings. Id. Once the leg bindings were

applied, officers remained positioned on the arrestee’s

upper torso and on top of his legs until the individual went

into cardiac arrest and ultimately passed away. Id. at

1148–49. On these facts, the court found that the officers

used an unreasonable amount of force and violated clearly

established law. Id. at 1152–54. However, an officer

admitted that the arrestee was “subdued” and “just quit

struggling,” but force was continued to be applied upon his

body for several minutes. Id. at 1149, 1154. Thus, the court

noted that the pressure was applied to the decedent “for a

significant period after it was clear that the pressure was

unnecessary to restrain him.” Id. at 1152. In this case, the

Court has not found that the Defendant Officers continued

to apply pressure to Mr. Gilbert after it was no longer

necessary as he was not subdued or and did not quit

struggling; rather, the evidence of Mr. Gilbert’s continued

resistance suggests that it was indeed necessary. See, e.g.,

Williams, 2010 WL 481299, at *14 (distinguishing Weigel

on similar grounds).

Plaintiffs also cite Champion v. Outlook Nashville,

Inc., 380 F.3d 893 (6th Cir. 2004), in support of their

argument, in which the court found the officers’ conduct

-App. 64awas unreasonable and violated clearly established law

after a jury verdict for plaintiff. However, in Champion,

the officer conduct that the Sixth Circuit upheld was

specifically the use of pepper spray after the arrestee was

handcuffed, hobbled, and under control. Id. at 897–98. The

arrestee was autistic, nonresponsive and unable to speak.

Id. at 896. Seventeen minutes elapsed between the

application of the hobble device on the arrestee and the

arrival of EMS. Id. at 897. Eyewitness testimony from five

individuals indicated that during this time, the officers

“were laying on him, like how wrestlers do in the ring”

with “all their strength,” “on top of him,” “laying on top of

him,” had a “knee in the middle of his back,” and continued

to use pepper spray while the individual was prone and

“subdued on the ground and had stopped resisting.” Id. at

898. And during this time, the arrestee vomited multiple

times. Id. Every eyewitness stated “they did not see [the

arrestee] struggle during this time.” Id. The court

recognized 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.” Id. at 903 (emphasis added). In this case, on the

other hand, Mr. Gilbert was not subdued and had not

ceased struggling. Instead, Mr. Gilbert continued to kick,

thrash, and otherwise move after he was handcuffed, while

Defendants were applying the leg shackles, and

thereafter. See, e.g., Bornstad, 211 Fed. App’x at 125

(distinguishing Champion because arrestee was

resistant); Dyer, 2011 WL 1226941, at *16 (distinguishing

Champion because individual continued to resist arrest).

Another case cited by Plaintiffs, Drummond v. City of

Anaheim, 343 F.3d 1052 (9th Cir. 2003), is similarly

distinguishable. In that case, the officers encountered a

mentally ill individual who they attempted to take into

-App. 65acustody so he could be brought to a mental facility. Id. at

1053. While the arrestee was prone and handcuffed, an

officer put his knee into the arrestee’s back and placed the

weight of his body on him. Id. at 1054. Another officer

similarly placed the weight of his body on the arrestee,

including placing a knee on his neck. Id. Two eyewitnesses

verified that the arrestee repeatedly told the officers he

could not breathe and that they were choking him and that

the officers were laughing during the course of events. Id.

at 1054–55. The arrestee was prone and handcuffed for

twenty minutes. Id. at 1055. The court held that immunity

was not available 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 need of air violates clearly established

law.” Id. at 1062. In its analysis, the court noted that once

on the ground, prone and handcuffed, [the arrestee] did

not resist the arresting officers.” Id. at 1059, 1061. Despite

“offering no resistance,” the court reasoned, the officers

persisted despite his repeated cries for air and also stood

around and laughed at him. Id. at 1062. Given Mr. Gilbert’s

continued resistance throughout the incident, this is

unlike Drummond, where the plaintiff became compliant

after being handcuffed and shackled. Here, for example,

Mr. Gilbert continued to thrash his legs back and forth and

otherwise move his body around even after he was

handcuffed and his legs were shackled. As the Court

discussed above, all of the Defendant Officers, including

Wactor, Mack, Opel, Cognasso, Lemons, and VonNida,

reasonably interpreted this as resistance as a matter of

law. See, e.g., Abbey v. City of Reno, 690 Fed. App’x 538,

539 (9th Cir. 2017) (finding Drummond distinguishable

because the detainee offered no resistance after being

handcuffed, but detainee in Abbey “actively assisted

arrest before and during the altercation, including after

-App. 66abeing handcuffed”); Bornstad, 211 Fed. App’x at 125

(reasoning, “[g]iven the resistance that [the detainee]

mounted throughout his arrest, it is impossible to

compare, as the appellant wishes, the circumstances of his

arrest with those in Drummond or Champion, in which

the plaintiffs became compliant after they had been

handcuffed and shackled. The officers were not required

to treat the still-resisting [detainee] in the same manner

as was required of the officers in either Drummond or

Champion.”); Giannetti, 216 Fed. App’x at 766 (reasoning

that “[u]nlike Drummond, where [the arrestee] no longer

resisted after the officers placed him in a prone position,

[the detainee in this case] actively resisted, kicked, and

thrashed at the officers.”).

The Court also finds Simpson v. Hines, 903 F.2d 400

(5th Cir. 1990), distinguishable on its facts. In that case,

ten officers simultaneously entered a jail cell and

collectively used force against a misdemeanant detainee

refused to surrender contraband or his personal effects.

See id. at 401. The court found the force used to be

excessive and malicious based on the following facts: the

officers strategized before entering the cell; an officer put

his arm around the detainee’s neck; and officer nicknamed

“Beef” due to his large size sat on the detainee’s chest;

once the detainee was suspect and prone, a tape recording

demonstrated the detainee submitted to their actions,

begged for help and screamed, and laid silent and

motionless for several minutes before they exited the cell;

and the officers left him in that position and motionless

until the next morning, when he was discovered dead from

asphyxia. Id. at 402. The force used in Mr. Gilbert’s case

is not comparable to this situation, as there was no

evidence in Simpson that the detainee resisted once he

was in handcuffs and leg shackles, and he laid silent and

motionless for several minutes before being left overnight.

-App. 67aCompare Pratt, 822 F.3d at 184, and Wagner, 227 F.3d at

324 (noting later-decided Fifth Circuit cases finding prone

force reasonable).

Plaintiffs place a lot of emphasis on Mr. Gilbert being

restrained in the prone position for fifteen minutes after

being handcuffed and shackled, even citing to that in the

first sentence of their brief in opposition to this Motion

and repeatedly emphasizing it throughout their response.

(See Doc. 79.) However, a review of the case law does not

establish a bright-line rule regarding the length of time a

resistant individual can be constitutionally maintained in

a prone position, even when in handcuffs and leg shackles.

See, e.g., Pratt, 822 F.3d at 183 (citing Hill v. Carroll

Cnty., 587 F.3d 230, 232–37 (5th Cir. 2009) (restraining a

resistant individual in a hog-tie for thirty minutes was not

unconstitutionally excessive because the plaintiff could

not establish that the “deputies had no objective basis not

to use four-point restraints” in light of her resistance and

even though medical expert testified specifically that the

individual died from asphyxia); Giannetti, 216 Fed. App’x.

at 759 n.3 (use of ultimately deadly force upon the legs,

arms, hands, and back of a handcuffed misdemeanor

detainee while in the prone position for nearly twenty

minutes was reasonable). Therefore, even accepting

Plaintiffs’ version of events by assuming Mr. Gilbert was

restrained in a prone position for up to fifteen minutes, the

Court still finds that the Defendant Officers’ conduct did

not violate a clearly established right for the reasons

already discussed and the additional reasons discussed

below.

Plaintiffs also assert that Defendants’ argument fails

because “Defendants fail to cite to a single case where

force was found to be objectively reasonable when applied

after an individual was restrained in the prone position in

-App. 68aa secure facility.” (Doc. 79 at 13.) The Court rejects the

notion that Defendants must cite to a case with that level

of specificity to have qualified immunity. See, e.g.,

Anderson v. Creighton, 483 U.S. 635, 640 (1987) (requiring

this “particularized” showing “is not to say that an official

action is protected by qualified immunity unless the very

action in question has previously been held unlawful”)

(internal citations omitted); De La Rosa v. White, 852 F.3d

740, 745 (8th Cir. 2017) (“We do not require a case directly

on point”) (internal quotations and citations omitted).

Moreover, the burden is on Plaintiffs, not Defendants, to

demonstrate the law was clearly established. See, e.g.,

Smith v. City of Minneapolis, 754 F.3d 541, 546 (8th Cir.

2014). Regardless, in Defendants’ reply, they did cite to a

case where a court found the force objectively reasonable

in such an instance— inside of a secure facility; with

officers applying force upon the legs, arms, hands, and

back of a handcuffed, misdemeanor detainee lying prone

for even longer than in this case; and resulting in an

unfortunate death. See, e.g., Giannetti, 216 Fed. App’x at

756, 758, 759 n.3, 760.

Moreover, even if there is an argument to be made that

the cases cited by Plaintiffs are not fully distinguishable

because they share some factual similarities to this case,

the Court would still find the Defendant Officers are

entitled to qualified immunity, as Mr. Gilbert’s case also

shares factual similarities with the cases cited by

Defendants. Plaintiffs argue: “Everyone agrees the prone

position is OK until the suspect is handcuffed. It’s what

happens after the cuffs are applied that matters . . . ‘As

soon as the suspect is handcuffed, get him off his

stomach.’” (Doc. 79 at 12.) Yet the case law does not

support that argument. Instead, courts are not in

agreement that a suspect must be moved out of the prone

position as soon as he is handcuffed.

-App. 69aConsidering there is no controlling authority in the

Eighth Circuit and the circuits are split among and within

themselves on cases with similar facts involving the use of

force upon a prone individual, the Court finds there is no

“robust consensus” such that “every reasonable officer

would have understood that what he is doing violates that

right” or such that the question is “beyond debate.” See,

e.g., Wilson v. Layne, 526 U.S. 603, 618 (1999) (recognizing

federal circuit split and noting “[i]f judges thus disagree

on a constitutional question, it is unfair to subject police to

money damages for picking the losing side of the

controversy” when finding law was not clearly

established); De La Rosa, 852 F.3d at 740 (reiterating

there must be a robust consensus); Burton, 370 F.3d at

730 (law not clearly established when no controlling

Eighth Circuit authority and circuits are split); Murphy v.

Dowd, 975 F.2d 435, 437 (8th Cir. 1992) (same). Plaintiffs

have not cited law clearly establishing a constitutional

right to be free from the type of force used by Officers

Stuckey, DeGregorio, King, and Sergeant Bergmann

while Mr. Gilbert was in a kneeling position. Moreover,

there is no controlling or robust consensus of persuasive

authority demonstrating the force used by Officers

Wactor, Mack, Opel, Cognasso, Lemons, and VonNida

while Mr. Gilbert was in the prone position violated clearly

established law.

While the law on the use of force in situations

involving prone restrain may ultimately move more

toward the direction Plaintiffs suggest, the law as of

December 8, 2015, was not clearly established. See, e.g.,

De Boise, 760 F.3d 892, 897 (finding law not clearly

established when case law was “still developing”). Indeed,

some of these cases relied upon by Defendants and

factually similar to this case were decided after December

8, 2015, lending further support to the notion that the

-App. 70acontours of prone restraint were not clearly established as

of December 2015. The Court recognizes that another

district court within the Eighth Circuit recently denied

the officers’ request for qualified immunity on summary

judgment in a case where ultimately deadly force was used

upon a restrained individual in the prone position. Hanson

for Layton v. Best, No. CV 15-4578 (MJD/SER), 2017 WL

5891697, at *1 (D. Minn. Nov. 28, 2017), appeal filed, No.

17-3821 (8th Cir. Dec. 29 2017).26 First, that case was

decided after December 8, 2015, so for purposes of the

clearly established analysis, it was not part of the “existing

precedent” available at the time the Defendant Officers

acted. al-Kidd, 563 U.S. at 741.27 Moreover, the case is

factually distinguishable, as officers restrained an

arrestee who the court found was only sporadically

resisting in the prone position with two sets of handcuffs

and a hobble restraint around his ankles for

approximately forty minutes. Hanson, 2017 WL 5891697

at *2, 6. In deciding Hanson, the Eighth Circuit might

very well provide additional clarification beyond Ryan on

the acceptable use of force upon a prone individual.

However, taking into account the totality of the

circumstances in Mr. Gilbert’s case and the totality of the

law as it existed in December 2015—and viewing the

Defendant Officers’ actions singularly and in

26

Oral arguments in that case were heard on November 14, 2018.

Defendants have appealed the portion of the court’s order denying

them qualified immunity based on whether the law was clearly

established law.

27

The same is true for Hopper v. Plummer, 887 F.3d 744, 748-55

(6th Cir. 2018), another case relied upon by Plaintiffs that was decided

after December 2015 (finding officers not entitled to qualified

immunity when officers used their body weight to restrain an inmate,

who had a seizure and was not resisting, in handcuffs in the prone

position during a 22-minute encounter).

-App. 71acombination—the Court finds that the officers are entitled

to qualified immunity.

The Eighth Circuit has made it clear: “Officials are not

liable for bad guesses in gray areas; they are liable for

transgressing bright lines.” Davis v. Hall, 375 F.3d 703,

712 (8th Cir. 2004) (quotation omitted). See also BusseyMorice II, 657 Fed. App’x at 913 (“[I]f case law, in factual

terms, has not staked out a bright line, qualified immunity

almost always protects the defendant.”) (internal

quotations and citations omitted). Here, there is no bright

line.

The circumstances in this case were tense, uncertain,

and rapidly evolving. While the ultimate injury here is

fatal and unfortunate, the “‘mere fact that an injury

occurred while an individual was in police custody is not

sufficient to avoid summary judgment.’” Williams v.

Chambers, No. 4:07CV01409 ERW, 2010 WL 481299, at

*14 (E.D. Mo. Feb. 5, 2010). Despite the result that night,

qualified immunity insulates the Officers from liability for

Mr. Gilbert’s death.

Since Plaintiffs have failed to establish the conduct in

this case, even when construed in the light most favorable

to them and accepting their theory of events, violated

clearly established standards, the Court need not reach

the issue of whether the alleged facts demonstrate that

the Defendant Officers’ conduct was objectively

reasonable, i.e., violated a constitutional right. See, e.g.,

Smith, 754 F.3d at 546.

B. The City is entitled to summary judgment on Counts

I through III.

Plaintiffs argue they are entitled to relief under

Counts I through III because the City’s unconstitutional

policies and procedures, as well as its deliberately

indifferent training of its officers, caused the violation of

-App. 72aMr. Gilbert’s constitutional rights. Specifically, Plaintiffs

argue that the City’s policy for restraining citizens in

holding cells is facially unconstitutional and caused the

violation of Mr. Gilbert’s rights and that the City’s failure

to train its officers or enact constitutional policies relating

to restraining an individual in the prone position amounts

to deliberate indifference to citizens’ rights. (Doc. 79.)

A Fourth Amendment seizure requires an intentional

act by an officer, and does not address “accidental effects

of otherwise lawful government conduct.” Brower v. Cnty.

of Inyo, 489 U.S. 593, 596–97 (1989). This Circuit has

consistently recognized a general rule that, in order for

municipal liability to attach, individual liability first must

be found on an underlying substantive claim. See, e.g.,

Sanders v. City of Minneapolis, 474 F.3d 523, 527 (8th Cir.

2007) (“Without a constitutional violation by the individual

officers, there can be no § 1983 or Monell failure to train

municipal liability.”) (citing City of Los Angeles v. Heller,

475 U.S. 796, 799 (1986)); McCoy v. City of Monticello, 411

F.3d 920, 922 (8th Cir. 2005) (concluding because district

court properly granted officer summary judgment on

excessive force claim, the City could not be liable in

unconstitutional policy/custom theory or failure to

train/supervise theory); McVay v. Sisters of Mercy Health

Sys., 399 F.3d 904, 909 (8th Cir. 2005) (stating “[s]ince we

have found that [the officer's] actions were not

unconstitutional, McVay cannot make a prima facie case

against the City under section 1983”); Turpin v. Cnty. of

Rock, 262 F.3d 779, 784 (8th Cir. 2001) (concluding

because district court properly granted officers summary

judgment on qualified immunity grounds, county likewise

was entitled to summary judgment); Veneklase v. City of

Fargo, 248 F.3d 738, 748 (8th Cir. 2001) (en banc)

(declaring “where arresting police officers are absolved of

liability to arrestees, the City ordinarily is not liable”);

-App. 73aThomas v. Dickel, 213 F.3d 1023, 1026 (8th Cir. 2000)

(reasoning “[b]ecause we have found that the officers' stop

of the plaintiffs' car did not violate their fourth

amendment [ ] rights, it follows that the plaintiffs' claim

against the city (inadequate training and municipal

custom) must likewise fail”); Eagle v. Morgan, 88 F.3d

620, 628 (8th Cir. 1996) (declaring decision that officers'

conduct did not violate plaintiff’s constitutional right to

privacy disposed of related claims against the city); Abbott

v. City of Crocker, 30 F.3d 994, 998 (8th Cir. 1994) (holding

city cannot be found liable on either a failure-to-train

theory or a municipal custom/policy theory unless a

defendant police officer is found liable on an underlying

substantive claim).

The Court held above that the Defendant Officers are

entitled to qualified immunity in their individual capacity

because there was no clearly established constitutional

right. Therefore, the City cannot be held liable under §

1983 on either an unconstitutional policy or custom theory

or on a failure to train theory.

III. Conclusion

Accordingly,

IT IS HEREBY ORDERED that Defendants’ Motion

for Summary Judgment (Doc. 63) is GRANTED and that

all remaining counts are DISMISSED, with prejudice.

A separate judgment will accompany this Order.

Dated this 1st day of February, 2019.

/s/ Noelle C. Collins

NOELLE C. COLLINS

UNITED STATES

MAGISTRATE JUDGE