Amicus Curiae Brief — Jody Lombardo, et al., Petitioners v. City of St. Louis, Missouri, et al.
Supreme Court briefOct 26, 2020
Ask Donna
What actually matters in this document.
Text
No. 20-391
IN THE
Supreme Court of the United States
________________
JODY LOMBARDO, ET AL.,
Petitioners,
v.
CITY OF ST. LOUIS, ET AL.,
________________
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT
________________
BRIEF OF POLICING SCHOLARS AS AMICI
CURIAE IN SUPPORT OF PETITIONERS
________________
Jennifer M. Keighley
ORRICK, HERRINGTON &
SUTCLIFFE LLP
51 West 52nd Street
New York, NY 10019
Melanie L. Bostwick
Counsel of Record
ORRICK, HERRINGTON &
SUTCLIFFE LLP
1152 15th Street, N.W.
Washington, DC 20005
(202) 339-8400
mbostwick@orrick.com
Counsel for Amici Curiae
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ..................................... ii
INTEREST OF AMICI CURIAE .............................. 1
SUMMARY OF ARGUMENT................................... 1
ARGUMENT ............................................................. 4
I.
Prevailing Police Practices And The
Overall Factual Context Impact The
Reasonableness Of An Officer’s Actions
Under The Fourth Amendment. ........................ 4
II. For Over 25 Years, It Has Been Generally
Accepted Within Policing That Officers
Must Avoid Keeping Individuals
Handcuffed And In The Prone Position
Because Of The Risk Of Death. ......................... 8
A. Leaving a restrained individual in the prone
position imposes significant health risks. ... 10
B. Given these acknowledged risks, the policing
community directs officers that they should
not keep a handcuffed individual in the
prone position for a prolonged period of
time. .............................................................. 13
III. The Eight Circuit’s Decision Is Wrong And
Will Be Used To Condone Egregious
Exercises Of Force. ........................................... 21
CONCLUSION ........................................................ 26
APPENDIX A
List of signatories .................................................... 1a
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Abdullahi v. City of Madison,
423 F.3d 763 (7th Cir. 2005)..................................6
Brown v. City of Golden Valley,
574 F.3d 491 (8th Cir. 2009)..................................7
Cole v. Hutchins,
959 F.3d 1127 (8th Cir. 2020)................................6
Drummond ex rel. Drummond v. City of
Anaheim,
343 F.3d 1052 (9th Cir. 2003)..........................6, 16
Goodson v. City of Corpus Christi,
202 F.3d 730 (5th Cir. 2000)..................................7
Graham v. Connor,
490 U.S. 386 (1989) ............................ 4, 6, 7, 23, 24
Gutierrez v. City of San Antonio,
139 F.3d 441 (5th Cir. 1998)..................................5
Ludwig v. Anderson,
54 F.3d 465 (8th Cir. 1995)....................................5
Lytle v. Bexar Cnty.,
560 F.3d 404 (5th Cir. 2009)..................................6
Martin v. City of Broadview Heights,
712 F.3d 951 (6th Cir. 2013)............................5, 16
iii
Smith v. Ray,
781 F.3d 95 (4th Cir. 2015)....................................7
Tennessee v. Garner,
471 U.S. 1 (1985) .................................. 2, 4, 5, 6, 21
Waterman v. Batton,
393 F.3d 471 (4th Cir. 2005)..................................6
Weigel v. Broad,
544 F.3d 1143 (10th Cir. 2008)............ 5, 15, 16, 23
Other Authorities
Albuquerque, New Mexico, Use of
Force, SOP 2-52,
https://tinyurl.com/yxl7fcgy .................................18
Austin, Texas, General Orders, Care
and Transport of Prisoners, 321.2.3,
https://tinyurl.com/y6pbmpno .............................21
Al Baker & J. David Goodman, The
Evolution of William Bratton, in 5
Videos, N.Y. Times (July 25, 2016),
https://tinyurl.com/y4xyostz ................................13
Mike Baker, et al., Three Words. 70
Cases. The Tragic History of I Can’t
Breathe. N.Y. Times (June 29,
2020), https://tinyurl.com/yaoduzq7....................16
Berkeley, California, Law Enforcement
Services Manual, Handcuffing and
Restraints, 302.9,
https://tinyurl.com/y3cmrohv ..............................21
iv
Steven G. Brandl, Police in America
(2018) ..............................................................12, 17
Charlotte-Mecklenburg, North Carolina, Police Department Directive,
500-003, https://tinyurl.com/yyt8joov .................18
Chicago Police Department, Training
Bulletin, Vol. XXXVI, No. 2,
Positional Asphyxia (Feb. 6, 1995) ......................15
Steve Cole, Screaming Their Last
Breath: Why First Responders Must
Never Ignore the Words I Can’t
Breathe, Calibre Press Online
Training Div. (Dec. 10, 2015) ..............................11
Consent Decreee, United States v. City
of Ferguson,
No. 4:16-cv-00180 (E.D. Mo. Apr. 19,
2016), https://tinyurl.com/yyosqr6o.....................17
Denver, Colorado, Operations Manual,
Force Related Policies, 105.01(5)(e),
https://tinyurl.com/y28sbsrw ...............................19
Detroit, Michigan, Use of Force, 304.2 7, Duty to Report/Render Aid,
https://tinyurl.com/y5kzobh9 ...............................19
DOJ, Principles for Promoting Police
Integrity (2001) ....................................................16
Durham, North Carolina, General
Orders Manual, Use of Force, 4008
R-14, https://tinyurl.com/y5cedmkz ....................21
v
Lawrence E. Heiskell, How to Prevent
Positional Asphyxia, POLICE Mag.
(Sept. 9, 2019),
https://tinyurl.com/yb8y8gum .............................17
International Association of Chiefs of
Police, National Consensus Policy &
Discussion Paper on Use of Force
(Rev’d 2020),
https://tinyurl.com/yxrlndum ................................8
International Association of Chiefs of
Police, The Prone Restraint—Still A
Bad Idea, 10 Pol’y Rev. 1 (1998) ...................10, 16
International Association of Chiefs of
Police, Training Key No. 429,
Custody Death Syndrome (1993) .........................14
Indianapolis, Indiana, General Order
8.1, Prisoner Handling,
Transportation and Escape,
https://tinyurl.com/y68u2gfr................................19
New Orleans, Louisiana, Operations
Manual, Handcuffing and Restraint
Devices,
https://tinyurl.com/y438hpey...............................20
New York, New York, Patrol Guide, Use
of Force, 221-02,
https://tinyurl.com/yxbl78pw...............................20
vi
Ronald L. O’Halloran & Janice G.
Frank, Asphyxial Death During
Prone Restraint Revisited; A Report
of 21 Cases, 21 Am. J. Forensic Med.
& Pathology 39 (2000) ...................................11, 12
John Parkes, A Review of the Literature
on Positional Asphyxia as a Possible
Cause of Sudden Death During
Restraint, 4 Brit. J. Forensic Prac.
24 (2002) ...............................................................12
Plaintiffs’ Response to Defendants’ Motion in Limine No. 5, Price v. County
of San Diego,
No. 3:94-cv-01917 (S.D. Cal. June
30, 1997) ...............................................................14
Donald T. Reay et al., Effects of
Positional Restraint on Oxygen
Saturation and Heart Rate
Following Exercise, 9 Am. J.
Forensic Med. & Pathology 16
(1988). ...................................................................10
Donald T. Reay et al., Positional
Asphyxia During Law Enforcement
Transport, 13 Am. J. Forensic Med.
& Pathology 90 (1992) ...................................10, 11
Donald T. Reay, Suspect Restraint and
Sudden Death, FBI Law Enf’t Bull.,
May 1996 ..............................................................15
vii
Settlement Agreement, United States v.
City of Cleveland,
No. 1:15-cv-01046-SO (N.D. Ohio
June 12, 2015),
https://tinyurl.com/y4fcegsf .................................17
Seth W. Stoughton, Jeffrey J. Noble, &
Geoffrey P. Alpert, Evaluating Police
Uses of Force (2020) .........................................8, 12
Washington, D.C., General Order, Use
of Force, 901.07,
https://tinyurl.com/yxds5r3s................................21
INTEREST OF AMICI CURIAE1
Amici curiae are scholars and authors who study,
teach, and write about policing and how it is regulated. Amici believe this case presents important and
recurring issues concerning the Fourth Amendment
implications of a particular police tactic: keeping a restrained (e.g., handcuffed) individual in the prone
(face-down) position. They have an interest in ensuring that the Fourth Amendment excessive force inquiry takes into account prevailing policing practices
and considers the totality of the circumstances in
evaluating the reasonableness of force.
Amici include Seth W. Stoughton, a former officer
of the Tallahassee Police Department and current law
professor at the University of South Carolina, as well
as other policing experts (many of whom formerly
served as police officers, supervisors, or executives),
and law professors at Columbia, Duke, NYU, UCLA,
and the University of Virginia, among others. Appendix A includes a full list of amici.
SUMMARY OF ARGUMENT
In the decision below, the Eighth Circuit held that
six officers who, for 15 minutes, pressed their body
weight into a man who was face-down, handcuffed,
and shackled until he suffocated to death used per se
reasonable force. As that man struggled to breathe,
1 The parties have consented to the filing of this amicus
brief. No counsel for a party authored the brief in whole or in
part. No party, counsel for a party, or any person other than
amici and their counsel made a monetary contribution intended
to fund the preparation or submission of the brief.
2
the officers continued to press his body into the
ground, even though he posed no realistic threat of
harm to them or anybody else. But—per the Eighth
Circuit—no reasonable juror could conclude that the
officers used excessive force.
The Eighth Circuit’s decision cannot be reconciled
with the long-standing recognition by police departments across the country that officers should not keep
a restrained (e.g., handcuffed) individual in the prone
(face-down) position because of the significant risk
that person will suffocate. The decision also cannot be
squared with this Court’s command that the excessive
force inquiry must take into account the totality of the
circumstances, including whether the individual actually poses any realistic threat of harm.
I. Prevailing policing practices impact the reasonableness of an officer’s force. This Court held as much
in Tennessee v. Garner, 471 U.S. 1 (1985), and circuits
around the country have followed suit.
More generally, the reasonableness of an officer’s
force depends on the factual context. The court must
ask whether, at the moment force was employed, the
individual had both the ability and opportunity to impose harm. When an individual is prone, restrained,
and in a police-dominated environment, the threat is
minimal; any use of force must be proportional to that
minimal threat.
II. For over 25 years, the policing community has
agreed that officers should not keep a restrained individual in the prone position because of the significant
risk of positional asphyxia, e.g., suffocation because of
3
body position. Since at least 1992, police departments
have been aware of these risks because of research
demonstrating that this position interferes with an
individual’s ability to breathe. The DOJ, FBI, and the
International Association of Chiefs of Police (IACP)
all warned departments about these risks, and New
York, Chicago, and other cities adopted policies prohibiting officers from keeping restrained subjects in
the prone position.
Today, there is widespread agreement in the policing community that prone restraint creates a serious risk of positional asphyxia, and that this risk is
exacerbated when officers apply pressure to an individual’s back. As a result, police departments across
the country have instituted policies that direct officers to not put weight on a prone subject’s back and to
move prone individuals into a position that facilitates
breathing as soon as they are restrained.
III. If this Court does not intervene, the Eighth
Circuit’s decision will permit officers to employ disproportionate force that—in many circumstances—
results in suffocation.
The Eighth Circuit’s analysis ignores the reality
that Mr. Gilbert, who was secured in handcuffs and
leg shackles, did not pose any realistic threat of harm
or escape when multiple officers spent 15 minutes
pressing his body into the ground. The court also
failed to evaluate the reasonableness of the force in
light of the decades-long agreement in the policing
community that restrained individuals should not be
kept in the prone position because of the risk of asphyxia. Given that police departments across the
4
country warn officers to not apply this type of force,
the Eighth Circuit’s conclusion that the officers’ actions here were reasonable as a matter of law should
not stand.
ARGUMENT
I.
Prevailing Police Practices And The Overall
Factual
Context
Impact
The
Reasonableness Of An Officer’s Actions
Under The Fourth Amendment.
Under Graham v. Connor, the ultimate question
in excessive force cases is whether the officer’s actions
were objectively reasonable, “careful[ly] balancing …
the nature and quality of the intrusion on the individual’s … interests against the countervailing governmental interests at stake.” 490 U.S. 386, 396 (1989)
(quotation marks omitted). This highly contextual inquiry asks whether the officer exercised force proportional to the situation he or she confronted, paying
“careful attention to the facts and circumstances of
each particular case.” Id.
Two aspects of this constitutional analysis are important to bear in mind.
First, as this Court held in Tennessee v. Garner,
471 U.S. 1 (1985), the prevailing views of the policing
community impact the reasonableness of an officer’s
use of force.
In Garner, this Court held that an officer violated
the Fourth Amendment by shooting and killing an unarmed black 15-year old who was fleeing the scene of
5
a burglary. The Court stated that when “evaluating
the reasonableness of police procedures under the
Fourth Amendment, we have … looked to prevailing
rules in individual jurisdictions,” including “policies
adopted by the police departments themselves.” Id. at
15-18. And the Court found it significant that “a majority of police departments in this country have forbidden the use of deadly force against nonviolent
suspects.” Id. at 10-11.
Generally accepted police practices were relevant
to the analysis because “if those charged with the enforcement of the criminal law have abjured the use of
deadly force in arresting nondangerous felons, there
is a substantial basis for doubting that the use of such
force is an essential attribute of the arrest power in
all felony cases.” Id. at 11.
Circuits around the country have followed suit,
acknowledging that violations of “police department
guidelines … are relevant to the analysis of constitutionally excessive force.” Ludwig v. Anderson, 54 F.3d
465, 472 (8th Cir. 1995) (quotation marks omitted).
“[I]t may be difficult to conclude that the officers acted
reasonably if they performed an action that had been
banned by their department or of whose dangers in
these circumstances they had been warned.”
Gutierrez v. City of San Antonio, 139 F.3d 441, 449
(5th Cir. 1998). And courts have reached this same
conclusion in positional asphyxia cases. See, e.g., Martin v. City of Broadview Heights, 712 F.3d 951, 960
(6th Cir. 2013) (“[O]fficers’ failure to adhere to a departmental policy that explained the grave dangers of
positional asphyxia verifies the unreasonableness of
their actions.”); Weigel v. Broad, 544 F.3d 1143, 1152
6
(10th Cir. 2008) (“[T]raining materials [that] made
clear that the pressure applied … would suffice to
cause … suffocation” impacted reasonableness of
force.); Abdullahi v. City of Madison, 423 F.3d 763,
772 (7th Cir. 2005) (“[V]iolat[ions of] standard police
practices [on asphyxia] … may also be deemed relevant to the reasonableness inquiry.”); Drummond ex
rel. Drummond v. City of Anaheim, 343 F.3d 1052,
1059 (9th Cir. 2003) (Violations of police department
guidelines on asphyxia relevant to reasonableness of
force.).
Second, when evaluating excessive force, context
matters. The court must evaluate “whether the totality of the circumstances justified” the specific use of
force. Garner, 471 U.S. at 8-9.
Critically, use-of-force incidents are dynamic; reasonableness depends on the nature of the threat the
individual presents at the time. “[F]orce that is reasonable while [the] suspect poses [a] threat is no
longer reasonable once [the] threat is no longer present.” Cole v. Hutchins, 959 F.3d 1127, 1133 (8th Cir.
2020); see also Lytle v. Bexar Cnty., 560 F.3d 404, 413
(5th Cir. 2009); Waterman v. Batton, 393 F.3d 471,
481 (4th Cir. 2005).
In Graham, the Court observed that the reasonableness inquiry “must embody allowance for the fact
that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of
force that is necessary.” 490 U.S. at 396-97 (emphasis
added). But this doesn’t mean that police officers are
always “forced to make split-second judgments.” Id.
7
And when “there is nothing to indicate that [the officer] was faced with the need to make any split-second decisions,” Brown v. City of Golden Valley, 574
F.3d 491, 497 (8th Cir. 2009), the court should not so
readily defer to the officer’s judgment. When an individual is in custody, restrained, and surrounded by officers, the situation is not “tense, uncertain, and
rapidly evolving” and officers have few, if any, “splitsecond” judgments to make. Graham, 490 U.S. at 39697.
Furthermore, any resistance by a restrained individual in a police-dominated environment2 warrants
a different response than does resistance by an unrestrained individual on the street. If the latter person
kicks an officer, he may present a threat of physical
harm or escape. But a handcuffed individual in a holding cell who kicks his legs while being held face down
on the ground does not. And when an individual does
not pose any realistic threat, significant force is not
justified even if the individual is “resisting” arrest.
See, e.g., Smith v. Ray, 781 F.3d 95, 98, 102-03 (4th
Cir. 2015) (punching and throwing an arrestee to the
ground not justified when the arrestee “took a single
step away” and “pulled her arm away” from the officer); Goodson v. City of Corpus Christi, 202 F.3d 730,
734, 740 (5th Cir. 2000) (pulling away from an officer
does not justify “being tackled”).
This is true because the reasonableness of force
depends on “whether and to what extent the subject
2 In fact, in some instances, “resistance” from a restrained
individual may not be resistance at all if the individual is simply
attempting to breathe. See infra Part II.
8
posed an articulable threat to a legitimate governmental interest,” and a “[t]hreat … exists only when
the subject has … the ability, opportunity, and apparent intention to cause a particular harm.” Seth W.
Stoughton, Jeffrey J. Noble, & Geoffrey P. Alpert,
Evaluating Police Uses of Force 231 (2020). See also,
IACP, National Consensus Policy & Discussion Paper
on Use of Force 11 (Rev’d 2020), https://tinyurl.com/yxrlndum (imminent threat requires “the
ability and opportunity to realize [an] intention” “to
inflict serious bodily injury or death”). A restrained
individual’s ability and opportunity to cause harm to
the officers or escape is dramatically reduced. See
Stoughton, Noble & Alpert, supra at 33-34. When the
facts reflect that the individual does not pose any realistic threat, an officer’s use of force—particularly
force with a foreseeable risk of death—is unreasonable.
II. For Over 25 Years, It Has Been Generally
Accepted Within Policing That Officers
Must
Avoid
Keeping
Individuals
Handcuffed And In The Prone Position
Because Of The Risk Of Death.
Police have known for decades that keeping individuals in the prone position for an extended period of
time imposes dangerous health risks because it can
interfere with the individual’s ability to breathe. The
individual gradually loses oxygen and may fall into
cardiac arrest. This has been termed “positional
9
asphyxia” (the term that we will use), as well as “compression asphyxia” and “restraint asphyxia.”3
A 1995 DOJ bulletin to law enforcement communities aptly describes the “vicious cycle” that occurs
when a suspect is restrained while face-down.
JA1930-31.4 This description from the 25-year old bulletin could be describing the facts of this case:
A suspect is restrained in a face-down position,
and breathing may become labored.
Weight is applied to the person’s back—the
more weight, the more severe the degree of
compression.
The individual experiences increased difficulty
breathing.
The natural reaction to oxygen deficiency occurs—the person struggles more violently.
The officer applies more compression to subdue
the individual.
3 Medical experts sometimes differentiate these terms, us-
ing “positional asphyxia” for asphyxia caused by the face-down
position itself, “compression asphyxia” for situations where
pressure on the individual’s back contributed to breathing difficulties, and “restraint asphyxia” to describe asphyxia resulting
from physical restraints. For purposes of this brief, we will not
differentiate between those terms.
4 “JA” refers to the Joint Appendix filed in the Eighth Circuit, No. 19-1469.
10
JA1930-31. These risks of suffocation are exacerbated
when combined with “alcohol and high drug use,”
“particularly when physical restraint includes use of
behind-the-back handcuffing combined with placing
the subject in a stomach-down position.” JA1931.
A. Leaving a restrained individual in the
prone position imposes significant
health risks.
The risks of positional asphyxia were first described over 30 years ago by pathologist Dr. Richard
Reay, who studied the impact of hog-tying (binding a
subject’s hands and feet together behind their back)
on a subject’s ability to breathe. See Donald T. Reay
et al., Positional Asphyxia During Law Enforcement
Transport, 13 Am. J. Forensic Med. & Pathology 90
(1992); Donald T. Reay et al., Effects of Positional Restraint on Oxygen Saturation and Heart Rate Following Exercise, 9 Am. J. Forensic Med. & Pathology 16
(1988).5
5 While there was some criticism in the 1990’s of Dr. Reay’s
original research on the degree of danger posed by hog-tying subjects alone, these critiques suffered from their own flaws: They
were based on the impact of hog-tying on young, healthy study
participants without any preexisting health conditions, which is
not representative of the relevant population. And as evidenced
by the discussion infra Part II.B., the law enforcement community’s prevailing view continues to be that restraining a prone
individual carries significant risks of asphyxia. See, e.g., IACP,
The Prone Restraint—Still A Bad Idea, 10 Pol’y Rev. 1 (1998)
(rejecting these critiques and noting that “there is considerable
evidence, both in terms of expert opinion and actual field experience, that indicates that the practice of prone restraint does in
fact lead to deaths among suspects in the custody of the police”).
11
Dr. Reay and others’ research demonstrated that
when a restrained subject is lying face-down, respiration is impeded significantly; while the individual can
take in some oxygen, he cannot take in enough oxygen
to sustain bodily functions over time. At some point,
the individual begins operating on an oxygen deficit.
Moreover, the individual’s elevated need for oxygen
due to muscle activity from resistance and/or drug use
exacerbates the deficit. The inability to take in
enough oxygen can result in death. See Reay, Positional Asphyxia, supra at 95. And, as is well known in
policing, the oxygen deficit does not preclude speech;
an individual may be slowly suffocating even while
pleading with officers, “I can’t breathe.” Steve Cole,
Screaming Their Last Breath: Why First Responders
Must Never Ignore the Words I Can’t Breathe, Calibre
Press Online Training Div. (Dec. 10, 2015).
While the early research initially focused on the
risks of hog-tying specifically, this quickly evolved
into a realization that keeping a handcuffed individual in the prone position for an extended period of
time carries inherent dangers. For example, in 2000,
two physicians conducted a review of 21 individuals
who died during prone restraint, many of whom who
were not hog-tied. The authors concluded that asphyxia was the “likely immediate cause of death, because the sudden collapse that resulted in death
occurred while the person was held in a position that
would compromise breathing.” Ronald L. O’Halloran
& Janice G. Frank, Asphyxial Death During Prone Restraint Revisited; A Report of 21 Cases, 21 Am. J. Forensic Med. & Pathology 39, 48 (2000). They
concluded that “[d]espite efforts by law enforcement
agencies to limit hogtying, asphyxial deaths still
12
occur when suspects are held prone with their arms
and legs restrained and weight applied to their backs
for minutes.” Id. at 51.6
Given this research, it is generally accepted
within policing that placing a restrained individual in
the prone position impedes the individual’s breathing
and could result in death. Police in America, a leading
resource for generally accepted practices in policing,
warns that “positional asphyxia occurs when a person’s body position prevents normal and adequate
breathing,” and that this “[u]sually” occurs “when the
subject is face down with hands secured behind the
back.” Steven G. Brandl, Police in America at 252
(2018). Further, “[t]he more [police] officers there are
holding a person down in a prone position, the greater
the risk that there will [be] pressure on the person’s
abdomen, making it difficult to breathe.” Id. (alterations in original). For this reason, “[o]fficers must be
attuned to the amount and duration of any weight
they place on [a prone] subject[’s]” back. Stoughton,
Noble & Alpert, supra at 203.
6 See also John Parkes, A Review of the Literature on Positional
Asphyxia as a Possible Cause of Sudden Death During Restraint,
4 Brit. J. Forensic Prac. 24, 27-28 (2002).
13
B. Given these acknowledged risks, the
policing community directs officers that
they should not keep a handcuffed
individual in the prone position for a
prolonged period of time.
1. For over 25 years, police departments have instructed their officers that they should not leave restrained individuals in the prone position for any
extended time period. Instead, as soon as the subject
is secured in handcuffs, officers should move the person to a recovery position, e.g., by rolling him onto his
side or having him sit up. Importantly, handcuffed
subjects should be moved into one of the recovery positions even if they are still non-compliant or resisting.
An NYPD training video explains to officers why
adherence to these directives is so important. Mirroring the 1995 DOJ directive, it describes how a restrained, prone individual’s “air hunger and oxygen”
deficit causes a “natural reaction” during which the
person “struggle[s] more violently” to get air. This
leads to the officers applying “more compression” in
order “to subdue the individual.” This results in a “vicious cycle in which compression makes air hunger,
air hunger makes a greater struggle and a greater
struggle demands greater compression.” And “in some
of these circumstances, the price of tranquility is
death.” The video directs officers that it is “incumbent” upon them to get the individual “into a position
that facilitates breathing” “as soon as safety permits.”
See Al Baker & J. David Goodman, The Evolution of
William Bratton, in 5 Videos, N.Y. Times (July 25,
14
2016), https://tinyurl.com/y4xyostz (reproducing 1994
NYPD training video).
San Diego’s police department was one of the first
to engage with this issue, in response to the sudden
death of a 16-year-old who died after being restrained
by officers. In 1992, a San Diego task force surveyed
223 law enforcement agencies across the country
about in-custody deaths and the literature on positional asphyxia. The task force issued a series of recommendations, directing that “[o]nce an individual
has been controlled and handcuffed, the officer should
roll the subject onto his/her side, or into a sitting position as soon as possible to reduce the risk of positional asphyxia.” Plaintiffs’ Response to Defendants’
Motion in Limine No. 5 at 24, Price v. County of San
Diego, No. 3:94-cv-01917 (S.D. Cal. June 30, 1997),
ECF No. 129 (San Diego Police Dep’t, Final Report of
the Custody Death Task Force (1992)).
The task force’s recommendations were then endorsed in 1993 by IACP—the oldest, largest, and most
highly-regarded policing organization in the world.
IACP directed police departments around the country
that “when it is necessary to use the weight of several
officers in order to subdue an individual for handcuffing, the arrestee should be freed from that weight as
soon as possible in order to allow him to breathe
freely. In order to facilitate the individual’s breathing,
he should also be rolled onto his side or into a sitting
position as soon as possible.” IACP, Training Key No.
429, Custody Death Syndrome (1993).
And, of course, the 1995 DOJ Bulletin could not
be clearer on this topic: “[A]s soon as the suspect is
15
handcuffed, get him off his stomach.” JA1931.7 The
DOJ bulletin reproduced model guidelines issued by
the NYPD, which similarly directed officers that “[a]s
soon as the subject his handcuffed, get him off his
stomach. Turn him on his side or place him in a seated
position. If he continues to struggle, do not sit on his
back. Hold his legs down or wrap his legs with a
strap.” JA1932 (emphases in original). The NYPD
also issued the training video discussed above, which
was widely circulated to other departments. See, e.g.,
Weigel, 544 F.3d at 1150 (describing use of NYPD
training video in Wyoming); JA1932 (indicating that
NYPD has agreed to make training video “available
to interested law enforcement agencies”).
In 1995, Chicago issued similar warnings to its officers about the dangers of positional asphyxia, directing them: “Do not leave a subject in control restraints
lying on his back or stomach.… Do not put weight on
an arrestee’s back, such as with your knee, for a prolonged period. This practice adds stress to the respiratory muscles and inhibits movement of the
diaphragm and rib cage.” These types of “potentially
dangerous restraint positions … must be avoided.”
The Chicago Police Department, Training Bulletin,
7 A 1996 FBI Bulletin also warned officers nationwide that
they need to be attuned to positional asphyxia’s risks because it
is “insidious, and subjects might not exhibit any clear symptoms
before they simply stop breathing.” Donald T. Reay, Suspect Restraint and Sudden Death, FBI Law Enf’t Bull., May 1996, at 23.
16
Vol. XXXVI, No. 2, Positional Asphyxia (Feb. 6,
1995).8
In 1998, IACP noted that “during the past decade
police departments have been repeatedly warned not
to permit the restraint of prisoners in the prone position.” IACP, The Prone Restraint—Still A Bad Idea,
supra at 2. DOJ then reaffirmed its grave concerns
regarding the risks of positional asphyxia in 2001,
when it directed policing agencies that they “should
develop use of force policies that address … particular
use of force issues [including] positional asphyxia”
and identified the IACP training key discussed supra
p. 13, as a model use of force policy on this issue. DOJ,
Principles for Promoting Police Integrity 4 & App. 1,
p.1 (2001).
2. Given the widespread acknowledgment of the
risks posed by prone restraints, police departments
across the United States “have for years warned officers about the risks of moves such as facedown compression holds.” Mike Baker, et al., Three Words. 70
Cases. The Tragic History of I Can’t Breathe. N.Y.
8 Litigation has also highlighted the extensive training materials
routinely provided to officers on this subject. See Martin, 712
F.3d at 956 (discussing “‘Positional Asphyxia Policy’ implemented in April 2003 to inform … officers of the dangers of asphyxiating an individual during a restraint procedure”); Weigel,
544 F.3d at 1149-50 (in 2002, state troopers were provided with
“[n]umerous training materials” that “addressed the risks of putting weight on an individual’s back when the person is lying on
his stomach”); Drummond, 343 F.3d at 1059-60 (in 1998, officers
warned that “when one or more [officers] are kneeling on a subject’s back or neck to restrain him, compression asphyxia can result”).
17
Times (June 29, 2020), https://tinyurl.com/yaoduzq7.
These types of policies and warnings remain in place
today.
Police in America warns officers that they should
“avoid prone restraint unless absolutely necessary:
Consider alternative methods for resolution. The person should be repositioned from the face down/prone
position as soon as practical. Do not sit or lean on the
abdomen EVER.” Brandl, supra at 252. See also Lawrence E. Heiskell, How to Prevent Positional Asphyxia,
POLICE
Mag.
(Sept.
9,
2019),
https://tinyurl.com/yb8y8gum (“Once the suspect is
handcuffed, get them off the face-down position.”);
JA1953 (ABA Standards for Criminal Justice, Treatment of Prisoners directs that “[c]orrectional authorities should not … restrain [prisoners] in a fetal or
prone position.”).
And when DOJ recently entered into consent decrees with police departments regarding use of force,
the decrees have required the institution of protocols
and trainings to “[m]inimiz[e] the risk of positional
asphyxia” and to encourage officers “to use restraint
techniques that do not compromise a subject’s breathing.” Consent Decree at 41, United States v. City of
Ferguson, No. 4:16-cv-00180 (E.D. Mo. Apr. 19, 2016),
https://tinyurl.com/yyosqr6o; see also Settlement
Agreement at 22, United States v. City of Cleveland,
No. 1:15-cv-01046-SO (N.D. Ohio June 12, 2015),
https://tinyurl.com/y4fcegsf (same).
As Petitioner noted, the state of Ohio has banned
all state agencies from using a “[p]rone restraint,” defined as including “all items or measures used to limit
18
or control the movement or normal functioning of any
portion, or all, of an individual’s body while the individual is in a face-down position for an extended period of time.” JA1971.
Indeed, police departments across the country
have adopted policies restricting the use of prone restraints in order to guard against the risks of positional asphyxia. A sampling of these policies currently
in effect includes:
Albuquerque, New Mexico: “In situations when the individual is forced into a
face down position, officers shall release
pressure/weight from the individual and
position the individual on their side or sit
them up as soon as they are restrained and
it is safe to do so.” Use of Force, SOP 2-52
at 5, https://tinyurl.com/yxl7fcgy.
Charlotte-Mecklenburg, North Carolina: “Avoid placing a subject in a position
that is likely to contribute to positional asphyxia.… control restraints while lying on
back/stomach should be avoided.” Police
Department Directive, 500-003, https://tinyurl.com/yyt8joov.
Denver, Colorado: “[O]fficers will immediately cease applying body weight to an individual’s back, head, neck, or abdomen
once the individual is restrained and other
control tactics may reasonably be utilized
other than body weight. As soon as possible
after an individual has been handcuffed,
19
the individual should be turned onto
his/her side or allowed to sit up, so long as
the individual’s actions no longer place officers at risk of imminent injury. Officers
will make all reasonable efforts to ensure
that the individual is not left in a prone position for longer than absolutely necessary
to gain control over the resisting individual.” Operations Manual, Force Related
Policies, 105.01(5)(e), https://tinyurl.com/
y28sbsrw.
Detroit, Michigan: “Restrained subjects
should be placed in an upright or seated position to avoid Positional Asphyxia which
can lead to death, when a subject’s body position interferes with breathing.” Use of
Force, 304.2 -7, Duty to Report/Render Aid,
https://tinyurl.com/y5kzobh9.
Indianapolis, Indiana: “A subject placed
on their chest or stomach, with the legs and
arms restrained behind the back, may have
difficulty breathing, leading to serious injury or death. 1. Officers should avoid leaving any prisoner on their chest or stomach
for any period of time longer than is absolutely necessary, regardless of the type of
restraint used. 2. The subject should be
moved onto their side, allowing less interference with normal breathing, as soon as
possible.” General Order 8.1, Prisoner Handling,
Transportation
and
Escape,
https://tinyurl.com/y68u2gfr.
20
New Orleans, Louisiana: “If a subject
has been placed on his or her stomach, turn
him or her on the side or in a seated position as soon as handcuffs are properly applied. If the subject continues to struggle,
do not sit, lie or kneel on the subject’s
back.” Operations Manual, Handcuffing
and Restraint Devices at 4, https://tinyurl.com/y438hpey (emphasis in original).
New York, New York: “Avoid actions
which may result in chest compression,
such as sitting, kneeling, or standing on a
subject’s chest or back, thereby reducing
the subject’s ability to breathe.… Position
the subject to promote free breathing, as
soon as safety permits, by sitting the person up or turning the person onto his/her
side.” Patrol Guide, Use of Force, 221-02 at
2-3, https://tinyurl.com/yxbl78pw.
Washington, D.C.: “In order to avoid asphyxiation, members shall …[p]osition the
individual in a manner to allow free breathing once the subject has been controlled
and placed under custodial restraint using
handcuffs or other authorized methods.…
Members are prohibited from: Placing a
person in a prone position (i.e., lying face
down) for a prolonged period of time … except during exigent circumstances. Prisoners shall be carefully monitored while in a
prone position as a prone position may be a
contributing factor to cause a prisoner to
suffocate, also referred to as positional
21
asphyxiation.” General Order, Use of
Force,
901.07
at
10,
https://ti9
nyurl.com/yxds5r3s.
The overwhelming, long-standing nationwide
agreement in the policing community on this issue informs the reasonableness of the officer’s use of force
here. Because “those charged with the enforcement of
the criminal law have abjured” keeping restrained individuals in the prone position, “there is substantial
basis for doubting that the use of such force is an essential attribute of” the police power. Garner, 471
U.S. at 11.
III. The Eight Circuit’s Decision Is Wrong And
Will Be Used To Condone Egregious
Exercises Of Force.
If left standing, the Eighth Circuit’s decision holding that the officers’ force was reasonable as a matter
of law will be used to condone uses of force that plainly
go against decades of policing directives and
9 See also Austin, Texas, General Orders, Care and
Transport of Prisoners, 321.2.3, https://tinyurl.com/y6pbmpno
(“Officers in control of a restrained person must … minimize the
possibility of positional asphyxia.”); Berkeley, California, Law
Enforcement Services Manual, Handcuffing and Restraints,
302.9, https://tinyurl.com/y3cmrohv (“If the person being handcuffed is on the ground or in a prone position, officers should, as
soon as possible, place the person in an upright sitting position
or on their side for respiratory recovery and to mitigate the potential for positional asphyxia.”); Durham, North Carolina, General Orders Manual, Use of Force, 4008 R-14 at 360,
https://tinyurl.com/y5cedmkz (“At no time should an individual
be left on their stomach or hog-tied, as this can lead to positional
asphyxia.”).
22
practices. This decision will govern any case in that
circuit regarding the death of a restrained, prone individual. This Court should intervene to make sure
that officers across the country are held to the basic
and widely accepted standards of professionalism by
not tacitly permitting officers to ignore their training
and press into a restrained individual into the ground
until he suffocates.
The Eighth Circuit’s decision that the officer’s
conduct here was reasonable as a matter of law cannot
be reconciled with the prevailing view in the policing
community that these tactics must be avoided. Nor
can it be reconciled with the way the excessive force
inquiry works, which requires consideration of the totality of the circumstances in light of the facts and circumstances of each particular case.
1. The Eighth Circuit’s decision completely ignores the policing community’s long-standing recognition that individuals should not be left restrained in
the prone position because of the risk of death.
Further, the Eighth Circuit disregarded the significance of the evidence that Gilbert’s resistance
while in the prone position was “actually an attempt
to breathe,” concluding that “the Officers could have
reasonably interpreted such conduct as ongoing resistance.” App. 9a. But given the widespread recognition that applying pressure to the back of restrained,
prone individuals carries a significant risk of asphyxiation, and that a suffocating individual may involuntarily struggle to breathe, supra Part II, the officer’s
purported interpretation of Gilbert’s efforts to
breathe—during the 15 minutes that six of them
23
pressed Gilbert’s body into the ground—is manifestly
unreasonable. At a minimum, reasonableness should
have been left to the fact finder to determine.
As the DOJ Bulletin bluntly states, when officers
apply force to a prone, restrained individual, “[t]he
natural reaction to oxygen deficiency occurs—the person struggles more violently.” JA1931. Officers are
generally taught that they should not “misinterpret a
suspect’s struggle for oxygen as continued resistance.”
Weigel, 544 F.3d at 1150. When officers ignore these
warning signs and continue to apply pressure, positional asphyxia will likely result.
The reasonableness of use of force must be
“judged from the perspective of a reasonable officer on
the scene.” Graham, 490 U.S. at 396 (emphasis
added). There is, at a minimum, a material dispute of
fact over whether a reasonable officer would have recognized the symptoms of asphyxiation and realized,
during the 15 minutes that Gilbert was struggling under the weight of the officers and yelling “It hurts,”
App. 36a, that his actions were the hallmark of a man
struggling to breathe.
The City of St. Louis itself admitted that the City
has “known about the dangers of compression asphyxia for a long time” and that the City put “protocols … in[] place” after the DOJ bulletin “telling
officers about the dangers of compression asphyxia.”
JA1783, 1808. While it has no formal policy in place,
the City teaches officers “that it can be dangerous to
hold someone in a prone position” and that they
should not “leave somebody on their stomach cuffed.”
JA 1774, 1778-79. Indeed, given the widespread
24
agreement in policing on the risks of positional asphyxia, the risks here would be obvious to any reasonable officer—regardless of whether a formal policy
was in place.
The officers’ conduct went against decades of generally accepted policing practices and the city’s own
understanding of the risks of prone restraints. The
Eighth Circuit’s conclusion that this conduct was reasonable as a matter of law cannot be squared with
years of experience and research demonstrating—and
years of police policy acknowledging—the risk that
these exact tactics will result in death.
2. Under this Court’s caselaw, the excessive force
inquiry requires “careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses
an immediate threat to the safety of the officers or
others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.” Graham, 490
U.S. at 396.
But rather than looking at these factors and the
factual context, the Eighth Circuit concluded that
since Gilbert was allegedly “continu[ing] to violently
struggle” after being handcuffed and leg-shackled, it
was per se reasonable for officers to hold him facedown on the ground and apply force until he suffocated. App. 9a. That conclusion is wrong on multiple
fronts.
First, the “crimes” for which Gilbert was arrested
were non-violent minor misdemeanors, App. 15a, but
the reason why the officers originally went into the
25
holding cell was to prevent Gilbert from hurting himself and/or to make him “be quiet.” App. 16a-17a;
JA1726. The government clearly has an interest in
protecting individuals in custody from self-harm, but,
just as clearly, that interest cannot justify pressing a
man’s body into the ground until he dies.
Second, for the entire 15 minutes that six officers—who collectively weighed over 1300 pounds—
were pressing into Gilbert’s body, he was face-down.
And handcuffed. And leg-shackled. All in a secure
holding cell. App. 4a-5a, 37a-38a. As discussed supra
p. 6-8, courts assessing reasonableness should take
into account whether the individual actually had the
ability and opportunity to impose any harm at the
time that the force was imposed. Here, the officers admitted that once Gilbert was “shackled and handcuffed …, he couldn’t harm anyone at that point,” JA
1795. In fact, he wasn’t even trying to; once he was
“handcuffed and secured,” he “stopped struggling.”
JA275.
Third, the fact that an individual was resisting in
some fashion does not give officers carte blanche in
their response. The use of force must be proportional
to the threat the subject’s resistance creates. A prone,
handcuffed individual in a secure holding facility offers little threat of physical harm and no realistic
threat of escape. See supra p. 7-8. The court failed to
consider whether the officers employed force that was
proportional to the minimal “threat” that Gilbert
posed in light of the totality of the circumstances.
26
CONCLUSION
For the foregoing reasons, the petition for a writ
of certiorari should be granted.
Respectfully submitted,
Jennifer M. Keighley
ORRICK, HERRINGTON &
SUTCLIFFE LLP
51 West 52nd Street
New York, NY 10019
October 26, 2020
Melanie L. Bostwick
Counsel of Record
ORRICK, HERRINGTON &
SUTCLIFFE LLP
1152 15th Street, N.W.
Washington, DC 20005
(202) 339-8400
mbostwick@orrick.com
1a
APPENDIX A*
Geoffrey P. Alpert
Professor of Criminology and Criminal Justice
University of South Carolina
Josh Bowers
F.D.G. Ribble Professor of Law
University of Virginia School of Law
Bennett Capers
Professor of Law
Director, Center on Race, Law, and Justice
Fordham Law School
Kami N. Chavis
Associate Provost for Academic Initiatives and
Professor of Law and Associate Vice President
Wake Forest University
Frank Rudy Cooper
Professor and Director, Program on Race, Gender &
Policing
University of Nevada, Las Vegas Boyd School of Law
Jeffrey Fagan
Isidor and Seville Sulzbacher Professor of Law
Columbia Law School
Institutions are listed for affiliation purposes only. All
signatories are participating in their individual capacities and
not on behalf of their institutions.
*
2a
Chad Flanders
Professor of Law
Saint Louis University School of Law
Barry Friedman
Jacob D. Fuchsberg Professor of Law
Faculty Director, Policing Project
New York University School of Law
Brandon L. Garrett
L. Neil Williams, Jr. Professor of Law
Duke University School of Law
Eisha Jain
Assistant Professor of Law
University of North Carolina School of Law
David Jaros
Professor of Law
University of Baltimore School of Law
Eric J. Miller
Professor of Law
Loyola Law School
Jeffrey J. Noble
Former Deputy Chief of Police, Irvine Police
Department
Co-author of Evaluating Police Uses of Force (2020)
Joanna Schwartz
Professor of Law
University of California, Los Angeles School of Law
3a
Nick Selby
Former Director, Cyber Intelligence and
Investigations, New York Police Department
Detective-Investigator, Midlothian, Texas Police
Department
Co-author of In Context: Understanding Police
Killings of Unarmed Civilians (2016)
Christopher Slobogin
Milton Underwood Professor of Law
Vanderbilt University
Seth W. Stoughton
Associate Professor of Law
University of South Carolina
Former Officer, Tallahassee Police Department
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.