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

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 THE NATIONAL ASSOCIATION

OF CRIMINAL DEFENSE LAWYERS AND

THE AMERICAN CIVIL LIBERTIES UNION AS

AMICI CURIAE IN SUPPORT OF PETITIONERS

————

JEFFREY T. GREEN

Co-Chair, Amicus Curiae

Committee

NATIONAL ASSOCIATION

OF CRIMINAL DEFENSE

LAWYERS

1660 L Street, N.W. #12

Washington, DC 20005

DAVID D. COLE

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

915 15th St. NW

Washington, DC 20005

STEVE ART

Counsel of Record

DAVID B. OWENS

RUTH Z. BROWN

KATIE ROCHE

SEAN STARR

MAKEBA RUTAHINDURWA

LOEVY & LOEVY

311 North Aberdeen St.

Chicago, IL 60607

(312) 243-5900

steve@loevy.com

EZEKIEL EDWARDS

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad St.

New York, NY 10004

Counsel for Amici Curiae

October 26, 2020

QUESTION PRESENTED

Whether a reasonable jury could find that

officers used excessive force when they put a

handcuffed and shackled person face-down on the

ground and pressed into his back until he

suffocated.

(i)

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................................ i

TABLE OF AUTHORITIES ..................................... v

INTEREST OF AMICI CURIAE ............................. 1

REASONS FOR GRANTING THE PETITION ...... 2

I.

A NATIONAL RULE GOVERNING THE

USE OF FORCE AGAINST ARRESTEES

AND DETAINEES IS NEEDED ....................... 4

II. THE EIGHTH CIRCUIT’S DECISION

CREATES A SIGNIFICANT CONFLICT

AMONG THE COURTS OF APPEALS ............ 7

III. THE NATIONAL RULE IS THE ONLY

ONE

CONSISTENT

WITH

THIS

COURT’S DEADLY FORCE CASES,

FOUNDATIONAL

FOURTH

AMENDMENT

PRINCIPLES,

AND

POLICE

PRACTICES

ACROSS

AMERICAN JURISDICTIONS ....................... 14

IV. THE NATIONAL RULE IS ESSENTIAL

TO OUR SYSTEM OF CRIMINAL

JUSTICE........................................................... 21

CONCLUSION ........................................................ 25

iv

TABLE OF AUTHORITIES

Page(s)

CASES

Abdullahi v. City of Madison,

423 F.3d 763 (7th Cir. 2005) ......................... 9

Anthony v. Seltzer,

696 F. App’x 79 (3d Cir. 2017) ...................... 8

Bailey v. Kennedy,

349 F.3d 731 (4th Cir. 2003) ................. 11, 12

Barnyard v. Theobald,

721 F.3d 1069 (9th Cir. 2013) ..................... 10

Brosseau v. Haugen,

543 U.S. 194 (2004)...................................... 16

California v. Hodari D.,

499 U.S. 621 (1991)...................................... 17

Champion v. Outlook Nashville,

Inc.,

380 F.3d 893 (6th Cir. 2004) ......................... 9

City of Los Angeles v. Lyons,

461 U.S. 95 (1983)........................................ 16

City & County of San Francisco v.

Sheehan, 575 U.S. 600 (2015) ..................... 16

Cottrell v. Caldwell,

85 F.3d 1480 (11th Cir. 1996) ..................... 13

County of Los Angeles v. Mendez,

137 S. Ct. 1539 (2017) ............................... 5, 6

v

TABLE OF AUTHORITIES—Continued

Page(s)

Craighead v. Lee,

399 F.3d 954 (8th Cir. 2005) ....................... 14

Darden v. City of Fort Worth,

880 F.3d 722 (5th Cir. 2018) ....................... 12

Delacruz v. City of Port Arthur,

No. 1:18-CV-11, 2019 WL

1211843, (E.D. Tex. Mar. 14,

2019) ............................................................. 12

Drummond v. City of Anaheim,

343 F.3d 1052 (9th Cir. 2003) ..................... 10

Estate of Booker v. Gomez,

745 F.3d 405 (10th Cir. 2014) ..................... 11

Estate of Smart by Smart v. City of

Wichita, 951 F.3d 1161

(10th Cir. 2020) ............................................ 10

Garrett v. Athens-Clarke County,

378 F.3d 1274 (11th Cir. 2004) ................... 13

Giles v. Kearney,

571 F.3d 318 (3d Cir. 2009) ........................... 8

Graham v. Connor,

490 U.S. 386 (1989)................................ 2, 5, 6

Gutierrez v. City of San Antonio,

139 F.3d 441 (5th Cir. 1998) ....................... 13

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Hopper v. Plummer,

887 F.3d 744 (6th Cir. 2018) ................. 5, 6, 9

Ingram v. Shipman-Meyer,

241 F. Supp. 3d 124

(D.D.C. Mar. 20, 2017) ................................. 13

Jackson v. Tellado,

236 F. Supp. 3d 636

(E.D.N.Y. 2017) ............................................ 12

Johnson v. District of Columbia,

528 F.3d 969 (D.C. Cir. 2008) ..................... 13

Jones v. Treubig,

963 F.3d 214 (2d Cir. 2020) ......................... 11

Keeney v. City of New London,

196 F. Supp. 2d 190

(D. Conn. 2002) ............................................ 12

Kerry v. Din,

576 U.S. 86 (2015)........................................ 22

Khan v. Normand,

683 F.3d 192 (5th Cir. 2012) ....................... 13

Kingsley v. Hendrickson,

576 U.S. 389 (2015)............................2, 3, 5, 6

Krechman v. County of Riverside,

723 F.3d 1104 (9th Cir. 2013) ..................... 11

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Lawhon v. Edwards,

No. 3:19-CV-924-HEH, 2020

WL 4589195, (E.D. Va. Aug. 10,

2020) ............................................................. 12

Lennox v. Miller,

968 F.3d 150 (2d Cir. 2020) ......................... 11

Martin v. City of Broadview

Heights,

712 F.3d 951 (6th Cir. 2013) ......................... 9

McBeth v. City of Union,

No. CV 7:15-1473-BHH, 2018

WL 4594987 (D.S.C. Sep. 25,

2018) ............................................................. 12

McCoy v. Meyers,

887 F.3d 1034 (10th Cir. 2018) ................... 11

McCue v. City of Bangor,

838 F.3d 55 (1st Cir. 2016) ............................ 8

Meyers v. Baltimore,

713 F.3d 723 (4th Cir. 2013) .................. 11-12

Miller v. Gonzalez,

761 F.3d 822 (7th Cir. 2014) ....................... 10

Mullenix v. Luna,

577 U.S. 7, 19 (2015) ................................... 15

Piazza v. Jefferson Cty.,

923 F.3d 947 (11th Cir. 2019) ....................... 5

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Plumhoff v. Rickard,

572 U.S. 765 (2014)...................................... 16

Pratt v. Harris County,

822 F.3d 174 (5th Cir. 2016) ....................... 13

Richman v. Sheahan,

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

Rivas v. City of Passaic,

365 F.3d 181 (3d Cir. 2004) ........................... 8

Sallenger v. Oakes,

473 F.3d 731 (7th Cir. 2007) ....................... 10

Scott v. Harris,

550 U.S. 372 (2007)................................ 15, 16

Simpson v. Hines,

903 F.2d 400, (5th Cir. 1990) .................. 9, 12

Skrtich v. Thornton,

280 F.3d 1295 (11th Cir. 2002) ................... 13

Smith v. City of Hemet,

394 F.3d 689 (9th Cir. 2005) ....................... 15

Stanford v. State of Tex.,

379 U.S. 476 (1965)...................................... 17

Strand v. Minchuk,

910 F.3d 909 (7th Cir. 2018) ....................... 10

Tennessee v. Garner,

471 U.S. 1 (1985).......................................... 15

ix

TABLE OF AUTHORITIES—Continued

Page(s)

Timpa v. Dillard,

No. 3:16-CV-3089-N, 2020 WL

3798875 (N.D. Tex. July 6,

2020) ............................................................. 12

Tolan v. Cotton,

572 U.S. 650 (2014)...................................... 16

Weigel v. Broad,

544 F.3d 1143 (10th Cir. 2008) ................... 11

Young v. City of Augusta,

59 F.3d 1160 (11th Cir. 1995) ..................... 13

STATUTES

42 U.S.C. § 1983 ........................................ passim

720 Ill. Comp. Stat. Ann. 5/7-5.5

(West 2016) ................................................... 19

Cal. Gov’t Code § 7286.5 ................................... 18

Colo. Rev. Stat. Ann. § 18-1-707

(West 2020) ................................................... 18

Conn. Gen. Stat. Ann. § 53a-22

(West 2020) ................................................... 19

D.C. Code Ann. §5-125.03

(West 2001) ................................................... 19

Del. Code Ann. tit. 11, § 607A

(West 2020) ................................................... 19

x

TABLE OF AUTHORITIES—Continued

Page(s)

Iowa Code Ann. § 804.8

(West 2020) ................................................... 19

N.H. Rev. Stat. Ann. § 627:5

(2020) ............................................................ 19

Nev. Rev. Stat. Ann. § AB 3, § 4

(West 2020) ................................................... 18

N.Y. Penal Law § 121.13-a

(McKinney 2020) .......................................... 19

Or. Rev. Stat. Ann. § Ch. 3, § 2

(West 2020) ................................................... 19

Utah Code Ann. § 53-13-115

(West 2020) ................................................... 19

OTHER AUTHORITIES

4 W. Blackstone, Commentaries ....................... 17

Chicago Police Department,

General Order G03-02, Use of

Force, available at

http://directives.chicagopolice.or

g/directives/data/a7a57be2128ff3f0-ae912-8fff44306f3da7b28a19.pdf?hl=true ................... 20

xi

TABLE OF AUTHORITIES—Continued

Page(s)

City of Phoenix, City Counsel

Policy Session (June 9, 2020),

available at

https://www.phoenix.gov/citycler

ksite/City%20Council%20Meeti

ng%20Files/6-920%20Policy%20Minutes%20%20Online.pdf#search=%22caro

tid%22 ........................................................... 20

E. Coke, The Second Part of the

Institutes of the Laws of

England 46-48 (1797)................................... 22

Davis, Whyde, & Langdon,

Contacts Between Police and the

Public, 2015, U.S. Department

of Justice Office of Justice

Programs Bureau of Justice

Statistics (Oct. 2018) ..................................... 7

Houston Police Department,

General Order No. 600-17,

Response to Resistance,

available at

https://www.houstontx.gov/police

/general_orders/600/60017_ResponseToResistance.pdf ..................... 20

xii

TABLE OF AUTHORITIES—Continued

Page(s)

Kimberly Kindy, et al., Half of the

Nation’s Largest Police

Departments Have Banned or

Limited Neck Restraints Since

June, Wash. Post (Sept. 6,

2020).pdf ....................................................... 21

Las Vegas Metropolitan Police

Department, Procedural Order

046-20, Use of Force Policy,

available at

https://www.lvmpd.com/enus/InternalOversightConstitutio

nalPolicing/Documents/PO-04620%20Use%20of%20Force.pdf .................... 20

Los Angeles Police Department,

Moratorium on Training and

Use of the Carotid Restraint

Control Hold (June 7, 2020),

available at

http://www.lapdonline.org/home/

news_view/66659 .......................................... 20

Marcus R. Nemeth, How Was That

Reasonable? The Misguided

Development of Qualified

Immunity and Excessive Force

by Law Enforcement Officers, 60

B.C. L. REV. 989 (2019) ................................ 23

xiii

TABLE OF AUTHORITIES—Continued

Page(s)

New York Police Department,

Force Guidelines, Procedure

No. 221-01, available at

https://www1.nyc.gov/assets/ccrb/

downloads/pdf/investigations_pd

f/pg221-01-force-guidelines.pdf .................... 19

Philadelphia Police Department

Directive 10.2, Use of

Moderate/Limited Force,

available at

https://www.phillypolice.com/ass

ets/directives/D10.2UseOfModerateLimitedForce.pd

f ..................................................................... 20

San Antonio Police Department,

General Manual, Procedure 501

Response to Resistance,

available at

https://www.sanantonio.gov/Port

als/0/Files/SAPD/OpenData/501UseOfForce.pdfx ........................................... 21

Philip M. Stinson, et. al., On-Duty

Police Shootings: Officers

Charged with Murder or

Manslaughter 2005-2018 (Mar.

2019),

https://scholarworks.bgsu.edu/cg

i/viewcontent.cgi?article=1097&

context=crim_just_pub................................. 23

xiv

TABLE OF AUTHORITIES—Continued

Page(s)

U.S. Dep’t of Justice, Federal

Bureau of Investigation,

Uniform Crime Reporting,

Crime in the U.S. 2015 (Table

29), https://ucr.fbi.gov/crime-inthe-u.s/2015/crime-in-the-u.s.2015/tables/table-29 ........................................ 7

U.S. Dep’t of Justice, Office of

Justice Programs, Bureau of

Justice Statistics, Zhen Zeng,

Jail Inmates in 2016 (Feb.

2018),

https://www.bjs.gov/content/pub/

pdf/ji16.pdf ...................................................... 6

U.S. Dep’t of Justice, Positional

Asphyxia—Sudden Death (June

1995),

https://www.ncjrs.gov/pdffiles/po

sasph.pdf ....................................................... 21

INTEREST OF AMICI CURIAE1

The National Association of Criminal Defense

Lawyers (NACDL) is a nonprofit voluntary

professional bar association that works on behalf of

criminal-defense attorneys to ensure justice and due

process for those accused of crimes or misconduct.

NACDL was founded in 1958. It has a nationwide

membership of many thousands of direct members,

and up to 40,000 with affiliates. NACDL’s members

include private criminal-defense lawyers, public

defenders, military-defense counsel, law professors,

and judges. NACDL is the only nationwide

professional bar association for public defense and

private criminal-defense lawyers. NACDL is

dedicated to advancing the proper, efficient, and

just administration of criminal justice. NACDL files

numerous amicus briefs each year in this Court and

other federal and state courts, assisting in cases like

this one, which concern constitutional standards

affecting arrestees and pretrial detainees, which are

of broad importance to criminal defendants,

criminal-defense lawyers, and the criminal-justice

system as a whole.

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization

with approximately two million members and

supporters dedicated to defending the principles of

liberty and equality embodied in the Constitution

1

Pursuant to Rule 37.6, amici certify that no counsel for a

party has authored this brief in whole or in part and that no

one other than amici and their counsel has made any

monetary contribution to the preparation and submission of

this brief. All parties have consented to the filing of this brief.

(1)

2

and nation’s civil rights laws. In furtherance of

those principles, the ACLU has appeared in

numerous cases before this Court involving the

meaning and scope of the Fourth Amendment, both

as direct counsel and as amicus. Because this case

directly implicates those issues, its proper

resolution is a matter of concern to the ACLU and

its members.

REASONS FOR GRANTING THE PETITION

This case asks whether a reasonable jury could

find that police officers violate the Constitution’s

prohibition on excessive force when they kill a

shackled and handcuffed arrestee inside of a jail cell

by compression asphyxiation, a form of lethal force.

This Court should grant certiorari to mandate a

uniform national rule governing the use of lethal

force against restrained arrestees and pretrial

detainees. It should hold that the objective

reasonableness standard of the Fourth and

Fourteenth Amendments prohibits the use of deadly

force against a restrained arrestee or detainee who

poses no threat to officers or others.

A national rule is needed. After this Court’s

decision in Kingsley v. Hendrickson, 576 U.S. 389

(2015), the objective reasonableness standard of

Graham v. Connor, 490 U.S. 386 (1989), governs all

claims of excessive force brought by arrestees and

pretrial detainees. Whether a civilian is interacting

with police officers on the street during an arrest, or

with jailers at a detention facility awaiting trial,

courts evaluate objective reasonableness by

examining the relationship between the need for

force and the amount of force used, the extent of the

3

civilian’s injury, efforts by officials to limit the force,

whether the civilian is resisting arrest or fleeing,

and the severity of the threat posed by the civilian

to officials or others. Kingsley, 576 U.S. at 397.

Given that the same constitutional standard

governs uses of force against all civilians suspected

but not convicted of crimes, it is of paramount

importance to apply a uniform standard across the

country.

Before the Eighth Circuit’s decision in this case,

there was a national rule. All courts of appeals that

had considered the issue agreed that the Fourth and

Fourteenth Amendments categorically prohibit the

asphyxiation of a restrained civilian who poses no

threat to officers or others. Rarely in the excessive

force context has there been such uniformity among

the lower courts. The decision below is the first to

depart from this categorical prohibition, and this

Court should grant certiorari to ensure that courts

continue to apply a uniform national standard.

The national rule applied outside of the Eighth

Circuit is also the only rule that conforms to this

Court’s cases governing the use of deadly force. It is

deeply rooted in the Fourth Amendment and

prevailing common-law rules, and it is consistent

with statutes and law enforcement policies already

in effect across American jurisdictions. Compression

asphyxia is deadly force, and state officials may not

use deadly force against restrained civilians, even if

those civilians are not fully submissive. The Eighth

Circuit’s decision is inconsistent with these

foundational principles, and it should be corrected

for those reasons as well.

4

Finally, a categorical prohibition on such uses of

force is an essential to the fair administration of

criminal justice. No reasonable person would

dispute that the police officers who encountered

Nicholas Gilbert handcuffed and shackled in his jail

cell could not have shot him dead, and it should be

equally forbidden to employ the lethal force of

compression asphyxia in the same circumstances.

Making Section 1983 an effective deterrent to such

excessive force ensures that our justice system can

adjudicate criminal cases consistent with due

process, and it is essential to public trust in police

and the justice system.

By departing from the previously established

national rule prohibiting the use of deadly force

against civilians who are restrained and pose no

threat, the Eighth Circuit has created a regime

where different deadly force standards will govern

police and jails in different jurisdictions. The

resulting accountability gap will lead to the uneven

administration of criminal justice in the United

States. This Court should grant certiorari to restore

the sensible regime that existed before.

I.

A NATIONAL RULE GOVERNING

THE USE OF FORCE AGAINST

ARRESTEES AND DETAINEES IS

NEEDED

Although the decision below arises in the context

of a use of force against an arrestee in a police

holding cell, its reasoning extends to a wide swath

of interactions in which individuals who are

suspected or accused, but not convicted, of crimes

come into contact with government officials.

5

Pursuant to Graham, 490 U.S. at 396-97, and

Kingsley, 576 U.S. at 397, the same objective

reasonableness standard governs all claims of

excessive force brought against law enforcement

and jail staff prior to a criminal conviction.

Graham sets forth the Fourth Amendment

standard for adjudging such claims arising “in the

course of an arrest, investigatory stop, or other

‘seizure’ of a free citizen[.]” 490 U.S. at 395. This

“settled and exclusive framework” for assessing

Fourth Amendment excessive-force claims, County

of Los Angeles v. Mendez, 137 S. Ct. 1539, 1546

(2017), also governs pretrial detainees’ claims of

excessive force arising under the due process clause

of the Fourteenth Amendment, Kingsley, 576 U.S.

at 396-97 (citing Graham, 490 U.S. at 396); see also

Piazza v. Jefferson County, 923 F.3d 947, 956 & n.9

(11th Cir. 2019) (the same rules govern Fourth and

Fourteenth Amendment cases “concerning the use

of force against unresisting or subdued” arrestees

and detainees). When government officials “create[]

asphyxiating conditions by putting substantial or

significant pressure, such as body weight, on the

back of an incapacitated and bound suspect,”

whether in an arrest or a jail, “the conduct at issue,

the risk of death to the detainee, and the minimal

threat posed by a bound and incapacitated detainee

to officer safety is the same[.]” Hopper v. Plummer,

887 F.3d 744 (6th Cir. 2018).

As a result, any civilian asserting an excessive

force claim prior to imprisonment on a conviction,

no matter the context, must “show only that the

force purposely or knowingly used against him was

objectively unreasonable.” Kingsley, 576 U.S. at

6

396-97; Mendez, 137 S. Ct. at 1546. To assess

objective reasonableness, courts consider the

relationship between the need for force and the

amount of force used, the extent of the civilian’s

injury, efforts by officials to limit the force, whether

the civilian is resisting arrest or fleeing, and the

severity of the threat posed by the civilian to

officials or others. Graham, 490 U.S. at 396;

Kingsley, 576 U.S. at 397, 399.

This constitutional standard governs uses of

force across a broad range of law enforcement and

detention settings, including those against civilians

during police investigative stops, arrests, and other

seizures on the street, in public places, or in homes;

against arrestees in police cars, processing and

intake areas, and lockups; against persons released

on bail pending trial; and against pretrial or civil

contempt detainees held in jails and prisons.

Kingsley, 576 U.S. at 396-99; Graham, 490 U.S. at

395; Hopper, 887 F.3d at 751-53. Most individuals

who interact with our criminal justice system fall

into these categories, rather than into the category

of convicted prisoners. The use-of-force standards at

issue in this case thus affect a staggering number of

Americans each year. For instance, in 2015, the

average daily population of prisoners held pre-trial

in local jails exceeded 400,000.2 In the same year,

law enforcement officers made nearly 11 million

2

U.S. Dep’t of Justice, Office of Justice Programs, Bureau

of Justice Statistics, Zhen Zeng, Jail Inmates in 2016, at 2

(Feb. 2018) (average daily prison population in local jails in

2015

was

727,400),

https://www.bjs.gov/content/pub/pdf/ji16.pdf; id. at 4 (62.5% of

prisoners held in local jails were pretrial).

7

arrests,3 initiating contacts annually with 27 million

U.S. residents age 16 or older.4

Given that existing law applies the same

constitutional standard from initial civilian-police

contact until a criminal conviction is obtained, and

in doing so governs a large portion of all interactions

between officials and citizens, it is particularly

important for this Court to mandate a uniform

national rule prohibiting the use of deadly force

against fully restrained arrestees and detainees

who pose no threat to officers or others. The Eighth

Circuit’s divergence from this rule not only

undermines the sensible regime governing uses of

force in police holding cells but does so for uses of

force in nearly all criminal justice settings.

II.

THE

EIGHTH

CIRCUIT’S

DECISION

CREATES

A

SIGNIFICANT CONFLICT AMONG

THE COURTS OF APPEALS

This Court should grant the petition because the

Eighth Circuit’s decision departs from the uniform

conclusion of all six courts of appeals that have

addressed whether officers may asphyxiate a

restrained civilian who poses no threat to officers or

others. Prior to the decision below, it was the

3

U.S. Dep’t of Justice, Federal Bureau of Investigation,

Uniform Crime Reporting, Crime in the U.S. 2015 (Table 29),

https://ucr.fbi.gov/crime-in-the-u.s/2015/crime-in-the-u.s.2015/tables/table-29 (last visited Oct. 25, 2020).

4

U.S. Dep’t of Justice, Office of Justice Programs, Bureau

of Justice Statistics, Elizabeth Davis, et al., Contacts Between

Police and the Public, 2015, at 1-2 (Oct. 2018),

https://www.bjs.gov/content/pub/pdf/cpp15.pdf.

8

national rule that using force to asphyxiate a

subdued or restrained individual is objectively

unreasonable, whether that person is an arrestee or

pretrial detainee. The Eighth Circuit’s contrary

decision creates a new and significant conflict

among the courts of appeals.

1. The First Circuit concluded recently that

“exerting significant, continued force on a person’s

back while that [person] is in a face-down prone

position after being subdued and/or incapacitated

constitutes excessive force,” drawing on authorities

from four other circuits. McCue v. City of Bangor,

838 F.3d 55, 64-65 (1st Cir. 2016) (internal

quotations and citations omitted). The Third

Circuit in Rivas v. City of Passaic, 365 F.3d 181,

200 (3d Cir. 2004), similarly decided that an officer’s

use of compression asphyxiation would be

unconstitutional if the victim “did not present a

threat to anyone’s safety as he lay in a prone

position on the enclosed porch, hands and ankles

secured behind his back.” Assuming the victim “was

handcuffed and had his ankles tied at that time, the

court found that a reasonable jury could find that

the continued use of force”—officers pressing on the

decedent’s back until he became “still and

unconscious”—was excessive. Id.; see also Giles v.

Kearney, 571 F.3d 318, 326 (3d Cir. 2009) (“[A]n

officer may not kick or otherwise use gratuitous

force against an inmate who has been subdued.”);

Anthony v. Seltzer, 696 F. App’x 79, 82 (3d Cir.

2017).

The Sixth Circuit was among the first of the

courts of appeals to deem it “clearly established that

putting substantial or significant pressure on a

9

suspect’s back while that suspect is in a face-down

prone position after being subdued and/or

incapacitated

constitutes

excessive

force.”

Champion v. Outlook Nashville, Inc., 380 F.3d 893,

903 (6th Cir. 2004) (citing Simpson v. Hines, 903

F.2d 400, 403 (5th Cir. 1990)). The Sixth Circuit has

repeatedly reaffirmed the national rule prohibiting

asphyxiation of a restrained civilian. See, e.g.,

Hopper, 887 F.3d at 754 (applying the “prohibition

against placing weight on [the decedent’s] body after

he was handcuffed” to a claim by a jail detainee);

Martin v. City of Broadview Heights, 712 F.3d 951,

961 (6th Cir. 2013) (noting the “prohibition against

placing weight on [the victim’s] body after he was

handcuffed” and explaining that “applying pressure

to the back of a prone suspect who no longer resists

arrest and poses no flight risk is an objectively

unreasonable use of force”).

The Seventh Circuit also adheres to the

national rule. Its leading case, Abdullahi v. City of

Madison, 423 F.3d 763, 770-71 (7th Cir. 2005),

recognized that “placing a person in a prone position

while handcuffed on the floor does not, in and of

itself, violate the Fourth Amendment,” but that

additional “specific unreasonable conduct” by an

officer who “knelt on the decedent’s back with chestcrushing force,” causing his death, violated the

Fourth Amendment. The court stressed, “No one

contends that deadly force was justified once [the

civilian] was lying prone on the ground with his

arms behind him[.]” Id. at 769. Again, the national

rule reflected in Abdullahi has been emphasized

repeatedly in the Seventh Circuit. Richman v.

Sheahan, 512 F.3d 876, 883 (7th Cir. 2008) (holding

10

that “a reasonably trained police officer would know

that compressing the lungs of a morbidly obese

person can kill the person,” and that a reasonable

jury could find the officers used excessive force in “a

situation in which officers suffocate an obviously

vulnerable person”); Sallenger v. Oakes, 473 F.3d

731, 741-42 (7th Cir. 2007) (finding that a

reasonable jury could find officers used excessive

force when, after applying leg restraints or a

“hobble,” they failed to turn the arrestee on his side

to prevent suffocation); see also Strand v. Minchuk,

910 F.3d 909, 918 (7th Cir. 2018) (recognizing that

“for decades” the Seventh Circuit has “emphasized

that a subdued suspect has the right not to be seized

by deadly or significant force”); Miller v. Gonzalez,

761 F.3d 822, 829 (7th Cir. 2014) (“This prohibition

against significant force against a subdued suspect

applies notwithstanding a suspect’s previous

behavior[.]”).

In Drummond v. City of Anaheim, where “officers

allegedly crushed [a civilian] against the ground by

pressing their weight on his neck and torso, and

continu[ed] to do so despite his repeated cries for

air, and despite the fact that his hands were cuffed

behind his back and he was offering no resistance,”

the Ninth Circuit held that “[a]ny reasonable

officer should have known that such conduct

constituted the use of excessive force.” 343 F.3d

1052, 1061 (9th Cir. 2003); see also Barnyard v.

Theobald, 721 F.3d 1069, 1073 (9th Cir. 2013)

(holding that officers violate the Fourth Amendment

when they “use a choke hold on a non-resisting

arrestee who had surrendered, pepper-spray him,

and apply such knee pressure on his neck and back

11

that it would cause the collapse of five vertebrae in

his cervical spine”); Krechman v. County of

Riverside, 723 F.3d 1104, 1108, 1111 (9th Cir. 2013)

(reversing judgment for four officers who restrained

an unarmed delusional man in prone position and

put weight on his back while “he was repeatedly

kicking”).

Finally, the Tenth Circuit follows the national

rule as well. It held in Weigel v. Broad that “the law

was clearly established that applying pressure to [a

civilian]’s upper back, once he was handcuffed and

his

legs

restrained,

was

constitutionally

unreasonable due to the significant risk of positional

asphyxiation associated with such actions.” 544

F.3d 1143, 1155 (10th Cir. 2008); see also Estate of

Smart v. City of Wichita, 951 F.3d 1161, 1176 (10th

Cir. 2020) (finding it was “clearly established that

officers may not continue to use force against a

suspect who is effectively subdued.”); McCoy v.

Meyers, 887 F.3d 1034, 1052 (10th Cir. 2018) (“[I]t

should have been obvious to the Appellees that

continuing to use force on [the victim] after he was

rendered unconscious, handcuffed, and zip-tied was

excessive.”); Estate of Booker v. Gomez, 745 F.3d

405, 424-29 (10th Cir. 2014).

2. The remaining courts of appeals have not

squarely addressed an excessive force claim arising

from asphyxiating force, but they have held

consistently that the continued use of force against

a restrained civilian is objectively unreasonable.

This is the rule in the Second Circuit, Lennox v.

Miller, 968 F.3d 150, 157 (2d Cir. 2020); Jones v.

Treubig, 963 F.3d 214, 225 (2d Cir. 2020); and in the

Fourth Circuit, Meyers v. Baltimore County, 713

12

F.3d 723, 734 (4th Cir. 2013); Bailey v. Kennedy, 349

F.3d 731, 744-45 (4th Cir. 2003).5

While the Fifth Circuit has not squarely

addressed the asphyxiation issue presented here, its

cases are nonetheless consistent with the national

rule prohibiting the suffocation of restrained

suspects. Simpson, 903 F.2d at 403 (reasonable jury

could conclude excessive force was used when 10

officers went into a cell and restrained and

asphyxiated an arrestee, including by having a

heavy officer sit on the arrestee’s chest); see also

Darden v. City of Fort Worth, 880 F.3d 722, 733 (5th

Cir. 2018).6

5

District courts in the Second and Fourth Circuits adhere

to the national rule and have found that officers who suffocate

restrained detainees violate the Fourth Amendment. McBeth

v. City of Union, No. CV 7:15-1473-BHH, 2018 WL 4594987, at

*15 (D.S.C. Sep. 25, 2018); Lawhon v. Edwards, No. 3:19-CV924-HEH, 2020 WL 4589195, at *13 (E.D. Va. Aug. 10, 2020)

Jackson v. Tellado, 236 F. Supp. 3d 636, 664 (E.D.N.Y. 2017);

Keeney v. City of New London, 196 F. Supp. 2d 190, 200 (D.

Conn. 2002).

6

Prior to the Eighth Circuit’s decision in this case, district

courts in the Fifth Circuit applied the national rule prohibiting

asphyxiation of a fully restrained civilian. E.g., Delacruz v.

City of Port Arthur, No. 1:18-CV-11, 2019 WL 1211843, at *9

(E.D. Tex. Mar. 14, 2019). But in light of the Eighth Circuit’s

decision, district courts in the Fifth Circuit more recently have

struggled with how to adjudicate deadly force claims arising

from suffocation. E.g., Timpa v. Dillard, No. 3:16-CV-3089-N,

2020 WL 3798875, at *5 (N.D. Tex. July 6, 2020).

In a separate line of cases, the Fifth Circuit has also

addressed whether hog-tying civilians constitutes excessive

13

In the Eleventh Circuit, while mere restraint

or “hog-tying” is permitted, Garrett v. Athens-Clarke

County, 378 F.3d 1274, 1281 (11th Cir. 2004);

Cottrell v. Caldwell, 85 F.3d 1480, 1492 (11th Cir.

1996), the use of additional force against subdued

suspects is objectively unreasonable, Skrtich v.

Thornton, 280 F.3d 1295, 1303 (11th Cir. 2002);

Young v. City of Augusta, 59 F.3d 1160, 1163-65

(11th Cir. 1995). And the D.C. Circuit has held that

an officer’s act of violence (which did not involve

asphyxiation) against a restrained and nonthreatening

arrestee

violates

the

Fourth

Amendment. Johnson v. District of Columbia 528

F.3d 969, 976-78 (D.C. Cir. 2008).7

The more general rule that the continued use of

force against a restrained civilian is constitutionally

unreasonable has been embraced by all courts of

appeals. Indeed, the Eighth Circuit’s decision below

appears to contradict its own prior cases holding

force. See Gutierrez v. City of San Antonio, 139 F.3d 441, 451

(5th Cir. 1998). Consistent with the national rule, these

decisions recognize that while an initial restraint is not per se

unconstitutional, the continued application of positional force

may be unreasonable where there is no ongoing threat posed

by the suspect. See Pratt v. Harris County, 822 F.3d 174, 184

(5th Cir. 2016) (use of hog-tie was not excessive due to evasion

and violence, and where additional force applied to back was

brief); Khan v. Normand, 683 F.3d 192, 195-96 (5th Cir. 2012)

(brief use of prone restraints and without additional force was

reasonable).

7

District courts in Washington, D.C., have concluded that

“a reasonable officer would have been on notice that she could

not choke to death an unarmed subject who had already been

subdued by fellow officers.” Ingram v. Shipman-Meyer, 241 F.

Supp. 3d 124, 145 (D.D.C. 2017).

14

that deadly force cannot be used against suspects

who do not pose a significant threat of death or

serious injury to the officer or others. See Craighead

v. Lee, 399 F.3d 954, 962 (8th Cir. 2005).

*

*

*

The Eighth Circuit’s decision in this case

contradicts all six courts of appeals that have

addressed excessive force claims arising from the

asphyxiation of restrained civilians and have held

uniformly that such uses of lethal force violate the

Constitution. In addition, the decision below departs

from the previously uniform view of all courts of

appeals, including the Eighth Circuit, that

continued force cannot be used against subdued or

restrained individuals who pose no threat to officers

or others. This Court’s review is necessary to resolve

this split and restore uniformity.

III.

THE NATIONAL RULE IS THE

ONLY ONE CONSISTENT WITH

THIS COURT’S DEADLY FORCE

CASES, FOUNDATIONAL FOURTH

AMENDMENT PRINCIPLES, AND

POLICE

PRACTICES

ACROSS

AMERICAN JURISDICTIONS

Reestablishing a national rule prohibiting

officials from using deadly force, including depriving

a person of oxygen, against restrained civilians who

pose no threat is also necessary to ensure adherence

to this Court’s cases governing the use of deadly

force, to foundational Fourth Amendment

principles, and to existing law and policy governing

police practices in the United States.

15

1. Tennessee v. Garner prohibits the use of deadly

force “unless it is necessary to prevent the escape

and the officer has probable cause to believe that

the suspect poses a significant threat of death or

serious physical injury to the officer or others.” 471

U.S. 1, 3 (1985). Although this Court has not

expressly defined what quantum of force constitutes

deadly force, compression asphyxiation would

satisfy any conceivable definition. Asphyxiation

presents the same “near certainty of death” as the

shooting at issue in Garner. Scott v. Harris, 550 U.S.

372, 384 (2007). It is significantly more likely to

cause the death of a suspect than a police car

bumping a moving car, which this Court has

determined “pose[s] a high likelihood of serious

injury or death.” Id. There can be no reasonable

dispute that compression asphyxiation creates a

substantial risk of death or serious bodily injury,

which is the definition of deadly force employed by

all courts of appeals. Smith v. City of Hemet, 394

F.3d 689, 705-06 (9th Cir. 2005) (en banc). Officers

who place their full body weight on a subdued

citizen in a prone position, as he gasps for air and

cries, “I can’t breathe,” are at substantial risk of

causing serious bodily injury or death.

As Justice Scalia emphasized in Mullenix v.

Luna, deadly force is the “directing of force

sufficient to kill at the person of the desired

arrestee.” 577 U.S. 7, 19 (2015) (Scalia, J.,

concurring). Officers who suffocate a civilian exert a

type of force “applied with the object of harming the

body of the [citizen]” that is not exceeded by any

other type of force. Id. Consider if the officers who

asphyxiated Nicholas Gilbert in this case had

16

instead shot him in his cell, while shackled and

handcuffed. No one would dispute that such a use of

deadly force would be categorically unreasonable.

The result should not be different when officers

deploy deadly force without a gun or other weapon.

After all, “[i]t is undisputed that chokeholds [and

similar techniques] pose a high and unpredictable

risk of serious injury or death.” City of L.A. v. Lyons,

461 U.S. 95, 116 (1983) (Marshall, J., dissenting).

Importantly, this case is not only about the

application of deadly force, but also the right to be

free from continued, unnecessary force once an

officer has restrained an individual. Since Garner,

all of this Court’s cases discussing the

reasonableness of deadly force have focused on

whether the suspect posed an immediate threat of

serious bodily injury to the officers or others, but

they also have all concerned suspects who were not

restrained. See City & County of San Francisco v.

Sheehan, 135 S. Ct. 1765, 1774-75 (2015); Plumhoff

v. Rickard, 572 U.S. 765, 775-77 (2014); Tolan v.

Cotton, 572 U.S. 650, 657-60 (2014); Scott, 550 U.S.

at 383-84 (2007); Brosseau v. Haugen, 543 U.S. 194,

196-201 (2004). Most recently, in Sheehan, this

Court acknowledged that the use of deadly force

against a subdued suspect would be material to the

determination of constitutional reasonableness. 135

S. Ct. at 1771 n.2 (noting that, although Sheehan

was on the ground, “she was certainly not

subdued”). Certiorari is warranted because the

Eighth Circuit’s decision that compression

asphyxiation can be used to kill a handcuffed and

shackled civilian inside of a jail cell contradicts this

17

Court’s cases defining when officials may use deadly

force.

2. Relatedly, this Court should grant certiorari

because the Eighth Circuit’s decision is inconsistent

with foundational Fourth Amendment principles.

This Court has time and again explained that the

Fourth Amendment was adopted against the

backdrop of English colonial oppression to set

limitations on executive authority, Stanford v. State

of Tex., 379 U.S. 476, 480-85 (1965), and it has “long

understood that the Fourth Amendment’s

protection against ‘unreasonable . . . seizures’

includes seizure of the person[.]” California v.

Hodari D., 499 U.S. 621, 624 (1991). In turn, this

Court has understood the scope of the Fourth

Amendment’s prohibition on the use of force with an

eye toward prevailing common-law rules and

practices in American jurisdictions. Garner, 471

U.S. at 12-19.

At common law, deadly force could not be used

against a restrained—and certainly not a jailed—

civilian. For example, “where the imprisonment

[was] only for safe custody before the conviction, and

not for punishment afterwards. . . the public [was]

entitled to demand nothing less than the highest

security that can be given, viz., the body of the

accused, in order to insure that justice shall be done

upon him if guilty.” 4 W. Blackstone, Commentaries

*298 (emphasis in original). “In this dubious

interval between the commitment and trial, a

prisoner ought to be used with the utmost

humanity, and neither be loaded with needless

fetters, or subjected to other hardships than such as

are absolutely requisite for the purpose of

18

confinement only[.]” Id. *300. In Gilbert’s case, the

officers applied deadly force while Gilbert was

handcuffed and shackled inside of a singleoccupancy jail cell. Once restrained, he posed no

threat of death or bodily injury to officers or others,

including himself. Even if the use of force to

handcuff and shackle Gilbert might have been

justified at common law, there is simply no question

that common-law rules would have prohibited the

use of deadly force against him after he was fully

restrained. In fact, the officers’ conduct at issue here

is precisely the sort of exertion of executive

authority that the Fourth Amendment was intended

to curtail.

3. Similarly important to understanding the

scope of Fourth Amendment protections are the

laws and practices adopted in American

jurisdictions. Garner, 471 U.S. at 15-20.

Governments across the United States restrict the

use of oxygen-depriving restraint techniques, except

where deadly force is permissible, and others go

even further and prohibit such force altogether. For

example, Colorado prohibits law enforcement

officers from using such techniques on any citizen

for any purpose. Colo. Rev. Stat. Ann. § 18-1-707

(West 2020).8 Other states, like Minnesota, identify

force that restricts the ability to breathe as deadly

and prohibit its use except where deadly force is

8

See also Cal. Gov’t Code § 7286.5 (Filed with Secretary of

State Sept. 30, 2020); D.C. Code Ann. §5-125.03 (West 2001)

(prohibiting the use of trachea holds under any

circumstances); Nev. Rev. Stat. Ann. § AB 3, § 4 (West 2020).

19

necessary. Minn. Stat. Ann. § 609.06 (West 2020).9

Notably, New York and Delaware have

criminalized the use of such techniques by police

officers as felonies, and Utah makes it a felony for

an officer to “restrain a person by the application of

a knee applying pressure to the neck or throat of a

person.”10

Even where state law is silent on the matter, law

enforcement agencies have implemented policies

that discourage and prohibit the use of restraints

that may result in asphyxiation. The eight largest

police departments in the country prohibit or have

a moratorium on the use of choke holds or similar

restraints, unless deadly force is necessary.11 A

9

See also Conn. Gen. Stat. Ann. § 53a-22 (West 2020)

(adding the prohibition of choke holds or other restraints that

“impede[] the ability to breathe or restricts blood circulation to

the brain” unless deadly force is necessary, effective April 1,

2021); D.C. Code Ann. §5-125.03 (West 2001) (prohibiting use

of carotid artery hold, except where lethal force is necessary);

Iowa Code Ann. § 804.8 (West 2020); 720 Ill. Comp. Stat. Ann.

5/7-5.5 (West 2016) (prohibiting choke holds except where

deadly force is justified); N.H. Rev. Stat. Ann. § 627:5 (2020)

(same); Or. Rev. Stat. Ann. § Ch. 3, § 2 (West 2020).

10

N.Y. Penal Law § 121.13-a (McKinney 2020) (aggravated

strangulation where officer commits crime of criminal

obstruction of breathing or blood circulation); Del. Code Ann.

tit. 11, § 607A (West 2020) (similar definition of aggravated

strangulation, with exception that use of chokeholds is

justifiable when deadly force is necessary); Utah Code Ann. §

53-13-115 (West 2020).

11

See New York Police Department, Force Guidelines,

Procedure No. 221-01 (June 1, 2016) (prohibiting any force,

20

including choke holds, on a restrained individual “unless

necessary to prevent injury, escape or to overcome active

physical

resistance

or

assault”),

https://www1.nyc.gov/assets/ccrb/downloads/pdf/investigations_

pdf/pg221-01-force-guidelines.pdf;

Los

Angeles

Police

Department, Moratorium on Training and Use of the Carotid

Restraint

Control

Hold

(June

7,

2020),

http://www.lapdonline.org/home/news_view/66659;

Chicago

Police Department, General Order G03-02, Use of Force (Feb.

28, 2020) (defining deadly force, in part, as “other maneuvers

for applying direct pressure on a windpipe or airway” and

prohibiting use of deadly force “against a person who is a

threat

only

to

himself,

herself,

or

property”),

http://directives.chicagopolice.org/directives/data/a7a57be2128ff3f0-ae912-8fff-44306f3da7b28a19.pdf?hl=true; Houston

Police Department, General Order No. 600-17, Response to

Resistance

(June

19,

2020),

https://www.houstontx.gov/police/general_orders/600/60017_ResponseToResistance.pdf; City of Phoenix, City Counsel

Policy Session (June 9, 2020) (noting Police Chief Jeri

Williams “suspended the use of carotid control technique

effective

immediately”),

https://www.phoenix.gov/cityclerksite/City%20Council%20Mee

ting%20Files/6-9-20%20Policy%20Minutes%20%20Online.pdf#search=%22carotid%22;

Las

Vegas

Metropolitan Police Department, Procedural Order 046-20,

Use of Force Policy (July 8, 2020) (banning chokeholds),

https://www.lvmpd.com/enus/InternalOversightConstitutionalPolicing/Documents/PO046-20%20Use%20of%20Force.pdf;

Philadelphia

Police

Department Directive 10.2, Use of Moderate/Limited Force

(updated Sept. 1, 2020) (prohibiting neck restraints and

transporting individuals in a face down position to prevent

positional

asphyxia),

https://www.phillypolice.com/assets/directives/D10.2UseOfModerateLimitedForce.pdf;

San

Antonio

Police

21

survey conducted recently found that at least 32 of

the nation’s largest police departments have banned

or strengthened restrictions on restraints that pose

a substantial risk of asphyxiation.12 And the

Department of Justice for decades has stressed that

“the use of maximal, prone restraint techniques

should be avoided.”13

This Court should grant certiorari as well

because the Eighth Circuit’s decision is inconsistent

with the laws and rules governing law enforcement

across the United States that prohibit asphyxiation

of civilians by police in the circumstances presented

in this case.

IV.

THE

NATIONAL

RULE

IS

ESSENTIAL TO OUR SYSTEM OF

CRIMINAL JUSTICE

This Court stressed in Garner that “[t]he use of

deadly force . . . frustrates the interest of the

individual, and of society, in judicial determination

of guilt and punishment.” 471 U.S. at 9.

Preservation of the life of a civilian accused of a

crime is a prerequisite to the procedural protections

Department, General Manual, Procedure 501 Response to

Resistance (Sept. 14, 2020) (prohibiting use of lateral vascular

neck

restraint),

https://www.sanantonio.gov/Portals/0/Files/SAPD/OpenData/50

1-UseOfForce.pdf.

12

Kimberly Kindy, et al., Half of the Nation’s Largest Police

Departments Have Banned or Limited Neck Restraints Since

June,

Wash.

Post,

Sept.

6,

2020,

at

2,

https://www.washingtonpost.com/graphics/2020/national/policeuse-of-force-chokehold-carotid-ban/#survey-results.

13

U.S. Dep’t of Justice, Positional Asphyxia—Sudden

Death (June 1995), https://www.ncjrs.gov/pdffiles/posasph.pdf.

22

guaranteed by our system of criminal justice.

Officials in free societies do not enjoy a privilege to

kill civilians. Kerry v. Din, 576 U.S. 86, 91 (2015)

(“[W]ithout due process, ‘no man [may] be taken or

imprisoned’; ‘disseised of his lands, or tenements, or

dispossessed of his goods, or chattels’; ‘put from his

livelihood without answer’; ‘barred to have the

benefit of the law’; denied ‘the franchises, and

priviledges, which the subjects have of the gift of the

king’; ‘exiled’; or ‘forejudged of life, or limbe,

disherited, or put to torture, or death.’”) (quoting 1

E. Coke, The Second Part of the Institutes of the

Laws of England 46-48 (1797)).

The rule announced in Garner is designed to

ensure that deadly force is used only in extreme

circumstances where other lives are imminently and

seriously threatened. Nicholas Gilbert’s case is

nothing of the sort. Not only was he jailed, but

within his cell he was restrained with handcuffs and

shackles when the defendants asphyxiated him. It

would be perverse to allow officials to use deadly

force when the only asserted justification was to

prevent the civilian from harming himself while

fully restrained. Yet the Eighth Circuit has endorsed

deadly force in precisely those circumstances.

The family of an arrestee or detainee who dies at

the hands of government officials outside of the

normal criminal procedural process has little

federal recourse other than a civil rights action

under Section 1983. Criminal prosecutions of

23

government officials for excessive force are rare.14

Thus, civil suits to enforce the Fourth and

Fourteenth Amendments are the only effective

mechanism to apply foundational constitutional

limits in this context and to deter officials who

might otherwise use deadly force inappropriately.

Wyatt v. Cole, 504 U.S. 158, 161 (1992) (“The

purpose of § 1983 is to deter state actors from using

the badge of their authority to deprive individuals

of their federally guaranteed rights[.]”).

Unless the decision below is reversed, the use of

deadly force by police and jailers in the Eighth

Circuit will be governed by a wholly different

standard than that in other jurisdictions. This gap

in accountability will have the effect of delegating to

individual officers in the Eighth Circuit the

discretion to apply deadly force even where it is

unnecessary and wholly disproportionate. More

suspects will die, and public confidence in our police

and criminal justice system will continue to suffer.

This Court can avoid these consequences by

simply making clear that the Fourth Amendment

14

Marcus R. Nemeth, How Was That Reasonable? The

Misguided Development of Qualified Immunity and Excessive

Force by Law Enforcement Officers, 60 B.C. L. Rev. 989, 99192 (2019); see also Philip M. Stinson, et. al., On-Duty Police

Shootings: Officers Charged with Murder or Manslaughter

2005-2018 (Mar. 2019), Criminal Justice Faculty Publications

98, at 2 (finding that although 900-1000 people are killed each

year by on-duty officers, between 2005-2018, only 97 have been

arrested, and 35 convicted, of a crime resulting from an onduty

shooting),

https://scholarworks.bgsu.edu/cgi/viewcontent.cgi?article=1097

&context=crim_just_pub.

24

rule prohibiting the use of deadly force against

persons who pose no risk of death or serious bodily

injury applies whether that force is a gunshot or

asphyxiation. And it will confirm the rule in the

other circuits, namely that officers cannot use

asphyxiation against restrained arrestees and

detainees who pose no threat. A uniform standard

in this context would inform law enforcement

officers and jail staff of the constitutional

constraints on uses of deadly force, resulting in

better prepared and more effective officers and

improved on-the-spot decision making. Improved

policing and jail practices, in turn, would deter

police misconduct and ensure the safety of both

members of the public and government officials

alike.

25

CONCLUSION

For the foregoing reasons, amici urge this Court

to grant the Petition and reestablish the uniform

national rule prohibiting officials from using deadly

force against restrained arrestees and detainees

who pose no threat to officers or others.

Respectfully submitted,

JEFFREY T. GREEN

Co-Chair, Amicus Curiae

Committee

NATIONAL ASSOCIATION

OF CRIMINAL DEFENSE

LAWYERS

1660 L Street, N.W. #12

Washington, DC 20005

DAVID D. COLE

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

915 15th St. NW

Washington, DC 20005

EZEKIEL EDWARDS

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad St.

New York, NY 10004

October 26, 2020

JON LOEVY

STEVE ART

Counsel of Record

DAVID B. OWENS

RUTH Z. BROWN

KATIE ROCHE

SEAN STARR

MAKEBA RUTAHINDURWA

LOEVY & LOEVY

311 N. Aberdeen St.

Chicago, IL 60607

(312) 243-5900

steve@loevy.com