Amicus Curiae Brief — Jody Lombardo, et al., Petitioners v. City of St. Louis, Missouri, et al.

No. 20-391

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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 AMICI CURIAE

RESTORE THE FOURTH, INC. &

THE RUTHERFORD INSTITUTE

IN SUPPORT OF PETITIONERS

---------------------------------♦--------------------------------JOHN W. WHITEHEAD

DOUGLAS R. MCKUSICK

THE RUTHERFORD INSTITUTE

109 Deerwood Rd.

Charlottesville, VA 22911

(434) 978-3888

MAHESHA P. SUBBARAMAN

Counsel of Record

SUBBARAMAN PLLC*

222 S. 9th St., Ste. 1600

Minneapolis, MN 55402

(612) 315-9210

mps@subblaw.com

October 26, 2020

* Counsel for Restore the

Fourth, Inc.

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

Table of Authorities .............................................

ii

Interest of the Amici Curiae ................................

1

Summary of the Argument ..................................

2

Argument .............................................................

5

I.

II.

The Court should grant review to uphold

the common law’s foundational respect for

the right to preserve one’s life ...................

5

The Court should grant review to uphold

the common law’s concern for the proper

care of pre-trial prisoners ..........................

7

Conclusion............................................................ 10

ii

TABLE OF AUTHORITIES

Page

CASES

Boyd v. United States, 116 U.S. 616 (1886) ..................4

Carpenter v. United States, 138 S. Ct. 2206

(2018) ..................................................................... 4, 5

Coffin v. United States, 156 U.S. 432 (1895) ................9

Martin v. Franklin Capital Corp., 546 U.S. 132

(2005) .........................................................................7

Maryland v. King, 569 U.S. 435 (2013) ........................4

Reniger v. Fogossa (1551), 75 Eng. Rep. 1 (Exchequer Chamber) .....................................................6

Rex v. Huggins (1790), 92 Eng. Rep. 518 (KB) ..... 7, 8, 9

Tennessee v. Garner, 471 U.S. 1 (1985) .........................6

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. IV ..................................... 1, 4, 6, 10

OTHER AUTHORITIES

Letter from Benjamin Franklin to Edward Newenham (May 27, 1779), https://bit.ly/37BQIEP ......... 4

4 MATTHEW BACON, NEW ABRIDGMENT OF THE

LAW (1793) .................................................................6

Mike Baker, et al., Three Words. 70 Cases. The

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

June 29, 2020, https://nyti.ms/3koIumX .............. 2, 3

iii

TABLE OF AUTHORITIES—Continued

Page

Peter Eisler, et al. Why 4,998 Died in U.S. Jails

Without Getting Their Day in Court, REUTERS,

Oct. 16, 2020, https://reut.rs/3jnAL7z ......................9

2 SIR MATTHEW HALE, HISTORY OF THE PLEAS OF

THE CROWN (1736).................................................. 5, 6

1 W. BLACKSTONE, COMMENTARIES ON THE LAWS

OF ENGLAND (1768) ....................................................5

4 W. BLACKSTONE, COMMENTARIES ON THE LAWS

OF ENGLAND (1773) ....................................................6

W. SHAKESPEARE, THE TEMPEST.....................................9

1

INTEREST OF THE AMICI CURIAE1

Restore the Fourth, Inc. is a national, nonpartisan civil liberties organization dedicated to robust

enforcement of the Fourth Amendment to the U.S. Constitution. Restore the Fourth believes that everyone is

entitled to privacy in their persons, homes, papers, and

effects and that modern changes to technology, governance, and law should foster—not hinder—the protection of this right.

To advance these principles, Restore the Fourth

oversees a network of local chapters, whose members

include lawyers, academics, advocates, and ordinary

citizens. Each chapter devises a variety of grassroots

activities designed to bolster political recognition of

Fourth Amendment rights. On the national level, Restore the Fourth also files amicus curiae briefs in significant Fourth Amendment cases.2

The Rutherford Institute is a nonprofit civil liberties organization headquartered in Charlottesville,

Virginia. Founded in 1982 by its President, John W.

1

This amici brief is filed with the consent of Petitioners and

Respondents. No counsel for a party authored this brief in whole

or in part; nor has any person or entity, other than Restore the

Fourth, the Rutherford Institute, and their counsel, contributed

money intended to fund the preparation or submission of this brief.

2

See, e.g., Brief of Amicus Curiae Restore the Fourth, Inc. in

Support of Petitioner, Torres v. Madrid, No. 19-292 (U.S. filed

Feb. 7, 2020); Brief of Amicus Curiae Restore the Fourth, Inc. in

Support of Petitioner, Mitchell v. Wisconsin, No. 18-6210 (U.S.

filed Mar. 4, 2019); Brief of Amicus Curiae, Restore the Fourth,

Inc. in Support of Petitioner, Collins v. Virginia, No. 16-1027

(U.S. filed Nov. 17, 2017).

2

Whitehead, the Institute provides free legal representation to individuals whose civil liberties have been violated. The Institute further educates the public about

constitutional and human rights issues. The Institute

tirelessly resists tyranny and threats to freedom, ensuring government abides by the rule of law and is

held accountable when it infringes on rights guaranteed to persons by the Constitution and laws of the

United States.

---------------------------------♦---------------------------------

SUMMARY OF THE ARGUMENT

“I can’t breathe.”

From Eric Garner in New York City to George

Floyd in Minneapolis, this chilling declaration exposes

the grave stakes that many Americans face in dealing

with law enforcement today. As the New York Times observes, while the Garner and Floyd cases have “created

national outrage over the use of deadly police restraints,” there are dozens of other cases that people

have not heard about.3

Cases like Byron Williams. Police officers stopped

Williams because his bicycle “did not have a light on

it.”4 After Williams “compl[ied] with orders to drop face

down in the dirt,” the officers “used their hands and

3

Mike Baker, et al., Three Words. 70 Cases. The Tragic History of ‘I Can’t Breathe.’, N.Y. TIMES, June 29, 2020, https://nyti.

ms/3koIumX.

4

Id.

3

knees to pin him down.”5 The officers then ignored Williams’s plea that he could not breathe—a plea that Williams “repeated . . . 17 times” before he “lapsed into

unconsciousness and died.”6

Williams’s death is no outlier. Cases of suffocationby-police exist from coast to coast. They include “a

chemical engineer in Mississippi, a former real estate

agent in California, a meat salesman in Florida and a

drummer at a church in Washington State.”7 Also “an

active-duty soldier who had survived two tours in

Iraq.”8 Even a doctor and a registered nurse.9

And now they include Petitioners’ case. Police officers arrested Nicholas Gilbert on minor charges and

put him in a secure holding cell.10 During this detention, Gilbert suffered “a mental health crisis” that

“posed no threat” to any officer. Pet. 15. Despite this

reality, “[s]ix officers pressed their collective weight”

into Gilbert’s “handcuffed and shackled” face-down

body “for 15 minutes” until Gilbert died. Pet. 1. The officers did this as Gilbert yelled “for help” and cried: “ ‘It

hurts. Stop.’ ” Pet. 15.

5

Id.

Id.

7

Id.

8

Id.

9

Id.

10

The charges were “suspicion of trespassing and occupying

a condemned building” and “failing to appear in court for an outstanding traffic ticket.” Pet. App. 3a.

6

4

Gilbert’s family thus sued the officers who killed

Gilbert for violating Gilbert’s Fourth Amendment

rights. Just so: the Amendment secures the people

against all “unreasonable . . . seizures” of “persons,” including police uses of excessive force. But the Eighth

Circuit rejected the Gilbert family’s claim, holding that

officers may “[r]easonably interpret” as “resistance” a

person’s “attempt to breathe” and “to tell [o]fficers that

they [are] hurting him.” Pet. App. 9a.

Those “who wrote the charter of our liberties” did

not agree. Maryland v. King, 569 U.S. 435, 482 (2013)

(Scalia, J., dissenting). They recognized that nothing

could be “as clear a right as that of breathing”—a

right that could “never be justly taken from men but

as a punishment for some atrocious crime.”11 For this

reason, they drafted the Fourth Amendment: to protect an “indefeasible right of personal security” against

all arbitrary “invasions on the part of the government

and its employés.” Boyd v. United States, 116 U.S. 616,

630 (1886).

The decision below stands against this right. So

does “the reason of the common law” that the Fourth

Amendment codifies. Carpenter v. United States, 138

S. Ct. 2206, 2243 (2018) (Thomas, J., dissenting). The

common law affirms the right of every person to preserve their own life. The common law also demands

proper care of pre-trial prisoners.

---------------------------------♦--------------------------------11

Letter from Benjamin Franklin to Edward Newenham

(May 27, 1779), https://bit.ly/37BQIEP.

5

ARGUMENT

I.

The Court should grant review to uphold

the common law’s foundational respect for

the right to preserve one’s life.

At the center of the common law rests “the right of

personal security,” which consists of “a person’s legal

and uninterrupted enjoyment of his life, his limbs, his

body, [and] his health.” 1 W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 129 (1768). “[I]nherent

by nature in every individual,” this right naturally implies the right to preserve one’s life. Id. at 129. After

all, “no suitable atonement can be made for the loss of

[one’s] life.” Id. at 132.

The common law subsequently recognizes that

“whatever is done by a man to save either life or member” is done by “the highest necessity and compulsion.”

Id. at 130. A person’s “well-grounded apprehension of

losing his life” requires the law’s “indulgence” in a

manner that other fears do not (e.g., fears of “being

beaten” or “having one’s goods taken away”). Id.

This indulgence informed the “robust body of common-law rules” at the founding that regulated seizures

of persons. Carpenter, 138 S. Ct. at 2243 (Thomas, J.,

dissenting). For example, these rules established that

mere “flight” from arrest for a simple misdemeanor

(without any “assault” on the arresting officer) is not

“resistance.” 2 SIR MATTHEW HALE, HISTORY OF THE

PLEAS OF THE CROWN 117 (1736). This made it “murder”

for an officer to kill a person who “flies and will not

yield” to an arrest for “trespass or breach of the

6

peace”—crimes similar to Nicholas Gilbert’s alleged offenses here. Id.

The common law deemed such flight excusable

because of a person’s “natural desire of liberty”—i.e.,

desire to preserve himself. 4 W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 130 (1773). And in

construing the Fourth Amendment, the Court has expanded on this idea. Rejecting the notion that “shooting nondangerous fleeing suspects is so vital as to

outweigh the suspect’s interest in his own life,” the

Court has ruled: “officer[s] may not seize an unarmed,

nondangerous suspect by shooting him dead.” Tennessee v. Garner, 471 U.S. 1, 11 (1985).

The common law’s foundational respect for the

right to preserve one’s life does not end with arrests.

It also extends into the jailhouse. The common law

establishes that “if a prison be on fire” and a prisoner

escapes “to save his life,” the prisoner “shall be excused” from the statutory felony of escape, even if

this is “contrary to the letter of the statute.” 4 MATTHEW BACON, NEW ABRIDGMENT OF THE LAW 650

(1793).12

This reasoning then points to the other critical

principle that supports review here. The common law

recognizes that “confinement of the person, by secretly

hurrying him to jail, where his sufferings are unknown

12

See, e.g., Reniger v. Fogossa (1551), 75 Eng. Rep. 1, 21

(Exchequer Chamber) (statement of Robert Brook, the Recorder

of London) (explaining “the law of reason” required this result

even if “the words of the statute are against it”).

7

or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.” 1 BLACKSTONE, COMMENTARIES 136 (bold

added). The common law thus expresses substantial

concern for the proper care of pre-trial prisoners.

II.

The Court should grant review to uphold

the common law’s concern for the proper

care of pre-trial prisoners.

The common law affirms that imprisonment pending trial “is only for safe custody, and not for punishment.” 4 BLACKSTONE, COMMENTARIES 297. Pre-trial

prisoners (like Nicholas Gilbert) are then entitled to be

treated “with the utmost humanity.” Id. Officers may

not impose any “hardships” on pre-trial prisoners beyond those “absolutely requisite for . . . confinement

only.” Id. (bold added).

In this context, the common law acknowledges

“the [jailer’s] discretion.” Id. But the common law likewise acknowledges the limits of this discretion: for instance, “[t]he laws will not justify . . . fettering a

prisoner unless . . . he was unruly or ha[s] attempted

to escape.” Id.; cf. Martin v. Franklin Capital Corp., 546

U.S. 132, 139 (2005) (“Discretion is not whim, and limiting discretion according to legal standards helps promote . . . justice . . . .”).

These limits stand against viewing a pre-trial

prisoner’s attempt to breathe or pleas for his life as “resistance.” A concrete illustration of this may be seen in

Rex v. Huggins (1790), 92 Eng. Rep. 518 (KB). Warden

8

John Huggins employed James Barnes to take “care of

the prisoners” at Fleet jail. Id. at 519. While doing this

job, Barnes locked prisoner Edward Arne into a “damp”

room “situate[d] over the [jail’s] common sewer”—in

essence, a room in which Arne could not breathe. Id.

(“[T]he room was unwholesome, and dangerous to the

life of any person detained in it.”). Barnes then kept

Arne in this pestilent room for six weeks, during which

time Arne fell sick and died. See id.

The Crown indicted and convicted Barnes of murder.13 Id. In sustaining this conviction, the court explained: “If a prisoner by duress of the gaoler [i.e.,

jailer] comes to an untimely end, it is murder. It is not

necessary, to make it duress, that there should be actual strokes or wounds.” Id. at 521. Rather, “[i]f a man

die[s] in prison” and “the [coroner’s] inquisition” finds

the jailer’s care brought “the person . . . nearer to

death,” it is a “felony.” Id. at 522.

The court then emphasized its “plain” reason for

finding that Barnes acted with malice, as required for

a murder conviction: because Barnes breached “the

trust” reposed in him as a jailer. Id. at 522. The common law required Barnes to recognize that “[a] prisoner is not to be punished in [jail], but to be kept

safely.” Id. at 522. Barnes treated Arne otherwise by

locking Arne in a room in which Arne could not

13

The Crown also indicted Warden Huggins for murder. See

Huggins, 92 Eng. Rep. at 519. The court acquitted Huggins, finding insufficient evidence to show that Huggins both knew of and

ratified Barnes’s mistreatment of Arne. See id. at 526.

9

breathe—a “deliberate” and “cruel” action against a

prisoner who could not “help himself.” Id.

“[W]hat’s past is prologue.” W. SHAKESPEARE, THE

TEMPEST, act 2, sc. 1. A Reuters examination of mortality “in more than 500 U.S. jails” reveals a death rate

that has risen 35% from 2008 to 2018.14 This examination also reveals “[a]t least two-thirds of the dead inmates”—or 4,998 pre-trial prisoners—“were never

convicted of the charges on which they were being

held.”15 And in many of these instances, the deaths involved what Edward Arne suffered over 200 years ago

and what Nicholas Gilbert suffered just five years ago:

an inability to breathe.16

This reality “subverts a fundamental tenet of the

U.S. criminal justice system: innocent until proven

guilty.”17 That tenet comes from the common law, further emphasizing the common law’s concern for the

proper care of pre-trial prisoners. See Coffin v. United

States, 156 U.S. 432, 455 (1895) (explaining that the

presumption of innocence “has existed in the common

law from the earliest time”).

---------------------------------♦---------------------------------

14

Peter Eisler, et al. Why 4,998 Died in U.S. Jails Without

Getting Their Day in Court, REUTERS, Oct. 16, 2020, https://reut.

rs/3jnAL7z.

15

Id.

16

See id.

17

Id.

10

CONCLUSION

The authorities behind the Fourth Amendment

confirm that when police restraint denies a person the

ability to breathe—forcing them to plead for their

life—the common law does not turn away.

Neither should this Court.

Respectfully submitted,

MAHESHA P. SUBBARAMAN

Counsel of Record

SUBBARAMAN PLLC*

222 S. 9th St., Ste. 1600

Minneapolis, MN 55402

(612) 315-9210

mps@subblaw.com

JOHN W. WHITEHEAD

DOUGLAS R. MCKUSICK

THE RUTHERFORD INSTITUTE

109 Deerwood Rd.

Charlottesville, VA 22911

(434) 978-3888

* Counsel for Restore the

Fourth, Inc.

Dated: October 26, 2020