Reply 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

REPLY BRIEF FOR PETITIONERS

JOHN G. SIMON

KEVIN M. CARNIE, JR.

PATRICK R. MCPHAIL

The Simon Law Firm, PC

800 Market St., Suite 1700

St. Louis, MO 63101

(314) 241-2929

JONATHAN E. TAYLOR

Counsel of Record

Gupta Wessler PLLC

1900 L Street NW, Suite 312

Washington, DC 20036

(202) 888-1741

jon@guptawessler.com

ANDREW W. CALLAHAN

P.O. Box 15159

St. Louis, MO 63110

(618) 791-5501

NEIL K. SAWHNEY

Gupta Wessler PLLC

100 Pine Street, Suite 1250

San Francisco, CA 94111

(415) 573-0336

November 12, 2020

Counsel for Petitioners

-iTABLE OF CONTENTS

Table of authorities .......................................................... ii

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

Argument........................................................................... 3

I.

The respondents all but concede the

circuit split. ........................................................ 3

II.

The amicus briefs confirm—and the

respondents do not dispute—that a

uniform rule is essential. .................................. 6

III. The respondents’ vehicle arguments are

based on a clear misrepresentation of the

record below. ..................................................... 7

IV.

The respondents’ defense on the merits—

that asphyxiating force is justified as a

matter of law solely to make a person be

“quiet”—is outrageous. .................................... 9

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

-iiTABLE OF AUTHORITIES

Cases

Abdullahi v. City of Madison,

423 F.3d 763 (7th Cir. 2005) ............................... 2, 3, 4, 5

Champion v. Outlook Nashville, Inc.,

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

Drummond v. City of Anaheim,

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

Hopper v. Plummer,

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

Jinks v. Richland County,

538 U.S. 456 (2003) .......................................................... 8

Krecham v. County of Riverside,

723 F.3d 1104 (9th Cir. 2013) ......................................... 5

Kulpa v. Cantea,

708 F. App’x 846 (6th Cir. 2017) .................................... 5

McCue v. City of Bangor,

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

Plumhoff v. Rickard,

572 U.S. 765 (2014) .......................................................... 8

Rivas v. City of Passaic,

365 F.3d 181 (3d Cir. 2004) ..................................... 2, 3, 6

Timpa v. Dillard,

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

-iiiTucker v. Las Vegas Metropolitan Police

Department,

470 F. App’x 627 (9th Cir. 2012) .................................... 6

Weigel v. Broad,

544 F.3d 1143 (10th Cir. 2008) ........................... 1, 3, 5, 8

-1INTRODUCTION

This case presents a rare opportunity for this Court to

decide the constitutionality of a police tactic that has killed

hundreds of people and that serves no legitimate purpose.

Outside the Eighth Circuit, there is general consensus

that putting a handcuffed person face-down on the ground

and pushing into his back is unreasonably dangerous.

Police training materials have long recognized as much, as

have many circuits. By breaking with this consensus—and

doing so purely as a matter of law, based on a clear set of

assumed facts—the decision below creates both a circuit

split and an ideal vehicle for resolving that split.

The respondents do not confront any of this. They do

not deny that, in other circuits, “applying pressure to [a

person’s] back, once he [has been] handcuffed and his legs

restrained, [is] constitutionally unreasonable due to the

significant risk of positional asphyxiation.” Weigel v.

Broad, 544 F.3d 1143, 1155 (10th Cir. 2008). Nor do they

deny that this rule is consistent with prevailing police

practices. And they hardly defend the Eighth Circuit’s

holding that both the amount and duration of the force

applied to a person’s back are “insignificant” to the

excessive-force question. App. 8a.

Instead, the respondents make two moves. First, they

claim that the question is not actually presented because

“no force was exerted on Gilbert’s back.” BIO 7. That is

false. The district court “assume[d]” that “Officers used

force upon his back” in granting summary judgment. App.

39a, 60a. The Eighth Circuit did the same. App. 5a. So

there is no basis for asserting otherwise in this Court.

Second, the respondents contend that the “crucial”

difference between this case and the other circuits’ cases

is that Gilbert struggled for air. BIO 13. But that is neither

a differentiating fact nor a crucial one. The other circuits’

-2cases do not “turn on” whether the decedent had been

completely still after being handcuffed, leg-shackled, and

pressed to the ground. Id. To the contrary, they reject the

argument that pushing into the back of someone who has

been “handcuffed and had his ankles tied” is justified until

he becomes “still.” Rivas v. City of Passaic, 365 F.3d 181,

200 (3d Cir. 2004). Moreover, many of the other circuits’

cases involved people who struggled violently throughout

the encounter and were far more combative than Gilbert.

The respondents entirely ignore several of these cases,

such as Weigel and Abdullahi v. City of Madison, 423 F.3d

763 (7th Cir. 2005), and mention others only to question

whether they were “correctly decided.” BIO 12-13.

The respondents’ arguments on the merits are equally

revealing. They do not attempt to justify the specific use

of force to Gilbert’s back after he was handcuffed, legshackled, and held in a prone position—even though that

is the question presented. Nor do they dispute that he

posed no threat once he was in that position. They focus,

rather, on the force used before Gilbert was handcuffed,

shackled, and moved to the ground. But the question is the

reasonableness of the force used after. As to that question,

the only thing that the respondents have to say (at 20) is

that force was justified “until he became quiet”—that is,

until he stopped breathing. That is no justification at all.

This Court should not look the other way. This petition

is as clean of a vehicle as a use-of-force case will ever get.

And the stakes are high. As the three amicus briefs attest,

certiorari is needed to restore a uniform national rule that

conforms to prevailing police practices, the Constitution’s

original meaning, and basic respect for human life.

-3ARGUMENT

I. The respondents all but concede the circuit split.

As the petition lays out (at 17-25), there is an

acknowledged “circuit split” between “the Eighth

Circuit’s decision in Lombardo” and “cases from the First,

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

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

The rule in those circuits is clear: “applying pressure

to [a person’s] back, once he [has been] handcuffed and his

legs restrained, [is] constitutionally unreasonable.”

Weigel, 544 F.3d at 1155; see Hopper v. Plummer, 887

F.3d 744 (6th Cir. 2018); McCue v. City of Bangor, 838

F.3d 55 (1st Cir. 2016); Abdullahi, 423 F.3d 763;

Drummond v. City of Anaheim, 343 F.3d 1052 (9th Cir.

2003). In addition, as the amicus brief of the National

Association of Criminal Defense Lawyers and the ACLU

notes (at 8), the Third Circuit has also adopted this rule.

It has held that “a reasonable jury could find that the

continued use of force” on someone who “was handcuffed

and had his ankles tied” —“press[ing] down on [his] back”

until he was “still,” and he then “died of asphyxiation”—

“was excessive.” Rivas, 365 F.3d at 199-200. Six circuits,

then, recognize that “[n]o reasonable officer would

continue to put pressure on [an] arrestee’s back after the

arrestee was subdued by handcuffs, an ankle restraint,

and a police officer holding the arrestee’s legs.” Champion

v. Outlook Nashville, Inc., 380 F.3d 893, 905 (6th Cir.

2004). Yet that is what happened here. By authorizing this

very conduct as a matter of law, the Eighth Circuit created

a conflict with six circuits.

The respondents have no answer to the split. They

pretend that four of these cases do not exist, making no

mention of Weigel, Abdullahi, McCue, or Rivas. As for the

others, they cite Hopper only to say that they “do not

-4concede” it was “correctly decided”; Drummond only to

say that it is “of doubtful authority”; and Champion only

to say that it cites cases that have been “criticized by this

Court.” BIO 12-13. Call that what you will, but it is closer

to an acknowledgement of a split than a denial of one.

Rather than grapple with these cases, the respondents

rely on the district court’s decision below, which they call

a “complete answer to petitioners’ attempt to manufacture

a division of the Circuits.” BIO 11. That is mystifying. The

district court did not cite three of these cases (Abdullahi,

McCue, or Rivas). Nor did it mention the key passages

from Weigel and Champion. And it said virtually nothing

about Hopper. Even so, the district court took the view

that “the circuits are split among and within themselves

on cases with similar facts.” App. 69a. So its description of

the case law, even if it were “complete” and accurate, BIO

11, would only underscore the conflict—not undermine it.

The respondents cite two other cases in an effort to

dispel the split—Estate of Phillips v. City of Milwaukee,

123 F.3d 586 (7th Cir. 1997), and Giannetti v. City of

Stillwater, 216 Fed. App’x. 756 (10th Cir. 2007). These

cases don’t undermine the split either. Phillips predates

the Seventh Circuit’s decision in Abdullahi, which made

clear that the claim in Phillips was based on a “failure to

monitor a physically distressed prisoner” rather than any

“specific unreasonable conduct” by officers. Abdullahi,

423 F.3d at 770-71. And Giannetti is an unpublished case

that predates the Tenth Circuit’s decision in Weigel.

Finally, the respondents assert that there is no split

because (in their telling) “most” of the other circuits’ cases

“turn on a crucial” distinction: the person who died was

“not resisting,” whereas “Gilbert continued to struggle”

for air “during most of the time that he was prone.” BIO

13. This unsupported assertion is wrong for three reasons.

-5First, it is simply not true that the other cases involved

no resistance. Several involved confrontational and

aggressive arrestees who struggled violently (like

Abdullahi and Weigel), while others involved situations

more analogous to this one (like Hopper). Specifically:

• Abdullahi involved an encounter with a man who

was “act[ing] aggressively” while being arrested—

“kicking his legs, moving his arms so they could not

be handcuffed and arching his back.” 423 F.3d at

765, 767. The Seventh Circuit held that a

reasonable jury could find that pushing on his back

for 30-45 seconds was excessive. Id. at 769.

• Weigel involved a dangerous tussle with a suspect

who, after being handcuffed and bound, continued

to “struggle and fight” as an officer pushed into his

back. 544 F.3d at 1158 (O’Brien, J., dissenting). The

Tenth Circuit held that a reasonable jury could find

that this force was excessive. Id. at 1152.

• Hopper involved a 22-minute “struggle that waxed

and waned in intensity.” 887 F.3d at 749-50. The

person was “suffering a medical emergency” inside

a cell, and he “kicked and thrashed” while being

held down. Id. at 755. The Sixth Circuit denied

summary judgment to the officers. Id. at 756.

Other cases are in accord. See, e.g., Krecham v. County of

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

person’s “back ‘when he was moving and attempting to get

up’” and “repeatedly kicking”); Kulpa v. Cantea, 708 F.

App’x 846, 851-53 (6th Cir. 2017) (45 seconds of force to

back of detainee “squirming” during mental-health crisis).

Second, as this discussion shows, neither the outcomes

in these cases nor the rules they announce “turn on”

whether the decedent became still after being handcuffed,

shackled, and held on the ground. Just the opposite: the

-6cases reject the argument that officers may push down

into the back of someone who is “handcuffed and ha[s] his

ankles tied” until he is “still.” Rivas, 365 F.3d at 200; see

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

627, 629 (9th Cir. 2012). By the same token, the governing

rule of law in these circuits contains no exception for when

a person moves in an “attempt to breathe,” as the court

below held. App. 9a.

Third, Gilbert was not in fact “resisting” after he was

handcuffed, shackled, and held down by six officers—at

least not in any relevant sense. BIO 13; see JA275 (record

evidence that Gilbert “stopped struggling” after being

“handcuffed and secured”). As laid out in the petition (at

15-16), the district court accepted as true that, once

Gilbert was moved to the ground, he “was not ignoring

commands or being violent,” App. 34a; he “posed no

threat,” App. 32a; and he “was ‘yelling pleas for help’ and

pleading ‘It hurts. Stop.’” App. 36a. Nevertheless, the

“[o]fficers used force upon his back,” App. 60a, as well as

his “sides” and “torso,” App. 39a, and did so “for fifteen

minutes,” App. 50a. They “did not stop using force until

after they realized [he] had stopped breathing.” App. 53a.

There is no doubt that, if these same facts presented

themselves in the First, Third, Sixth, Seventh, Ninth, or

Tenth Circuits, summary judgment would not have been

granted to the officers. Not so in the Eighth Circuit.

II. The amicus briefs confirm—and the respondents

do not dispute—that a uniform rule is essential.

This division of authority is intolerable. Although the

respondents weakly deny the existence of the split, they

do not deny the need for a uniform rule. When the conduct

at issue here took place, there was a uniform rule. But that

consensus has now been upended. “By departing from the

previously established national rule,” “the Eighth Circuit

-7has created a regime where different deadly force

standards will govern police and jails in different

jurisdictions.” Br. of NACDL & ACLU, at 4.

This Court should not allow that disparity to persist.

The legitimacy of our criminal-justice system depends on

the evenhanded distribution of justice, particularly for

matters of life and death. Public confidence in that system,

and the effectiveness of courts to vindicate constitutional

rights, likewise depends on a uniform body of law. That

confidence can be eroded by even a single wayward circuit,

which can stretch the bounds of qualified immunity (and

hamper DOJ’s ability to criminally prosecute violations)

far beyond defensible limits, and far into the future. This

Court should stop that slide in its tracks.

III. The respondents’ vehicle arguments are based on

a clear misrepresentation of the record below.

Unable to disprove the circuit split or to diminish its

significance, the respondents try to muck up the case as a

vehicle. They do so in three ways. All fail.

The respondents first dispute the factual premise of

the question presented. They claim that “[t]he undisputed

facts show that little or no force was exerted on Gilbert’s

back.” BIO 1. Not true. In granting summary judgment to

the respondents, the district court below “assume[d]” that

“[o]fficers used force upon his back.” App. 39a, 60a. The

Eighth Circuit did so as well, specifically citing the record

evidence supporting this fact. App. 5a.

The respondents next suggest (at 15) that this case is

not worth the Court’s time because the officers will claim

an entitlement to qualified immunity on remand. But that

is no reason to deny certiorari. To begin, there is value in

answering “the question whether the officers’ conduct

violated the Fourth Amendment,” regardless of whether

-8they will receive immunity. Plumhoff v. Rickard, 572 U.S.

765, 774 (2014). An answer from this Court will be

“beneficial in developing constitutional precedent” and

restore uniformity to the law. Id. (cleaned up).

But the answer matters even for this case. The Eighth

Circuit granted summary judgment to all respondents,

including the City of St. Louis, based on its holding that

there was no constitutional violation. Because cities “do

not enjoy a constitutionally protected immunity from

suit,” Jinks v. Richland County, 538 U.S. 456, 466 (2003),

a finding of qualified immunity for the officers would not

affect the claims against the City. Moreover, when the

conduct here occurred, in 2015, “the law was clearly

established that applying pressure to [a person’s] back,

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

constitutionally unreasonable due to the significant risk of

positional asphyxiation.” Weigel, 544 F.3d at 1155. This

“significant risk” had been known to law enforcement for

decades, as the policing scholars’ amicus brief explains (at

8-21). So it is far from certain that the Eighth Circuit on

remand, while operating under a proper understanding of

the law, will once again split with the other circuits and

find that the facts on pages 15-16 of the petition are not a

clearly established violation.

The respondents’ last vehicle argument bleeds into the

merits. In an effort to distract from the actual question

presented, the respondents spend several pages (at 16-20)

answering a question not presented: the constitutionality

of the force used on Gilbert before he was handcuffed, legshackled, and held in a prone position. To be clear, the

petition challenges only the force used after that—and in

particular, the force to his back.

It is true that some of the officers played no role in

applying that deadly force. But that does not make the

-9petition a flawed vehicle. The grant of summary judgment

to those officers would not be disturbed by answering the

question presented in the petitioners’ favor. The only

claims that would be revived are those against the officers

who had a hand in the specific unconstitutional conduct—

restraining Gilbert in a prone position for fifteen minutes

and pushing on his back while doing so.

IV. The respondents’ defense on the merits—that

asphyxiating force is justified as a matter of law

solely to make a person be “quiet”—is outrageous.

As for the actual question presented, the respondents

have little to say. Their only attempt to defend the Eighth

Circuit’s answer is to repeatedly assert that applying force

to Gilbert’s back—after he had been handcuffed, shackled,

and pinned to the ground by six officers—was authorized

“until he became quiet.” BIO 20. No matter that he “posed

no threat” and “was ‘yelling pleas for help’ and pleading

‘It hurts. Stop.’” App. 32a, 36a. No matter that the force

was applied “for fifteen minutes.” App. 50a. No matter

that it continued “until he stopped breathing.” App. 42a.

What cost him his life was that he was not “quiet.”

If that is the lesson that officers are taking from the

decision below, this Court’s review cannot come soon

enough. Under this rationale (which is not unlike the

Eighth Circuit’s actual rationale), officers are authorized

as a matter of law to push down on the back of someone

who poses no threat, simply because he says: “I can’t

breathe.” That is antithetical to a free society, and it

makes a mockery of the historical right to personal

security. Since the founding, detainees have been “entitled

to be treated ‘with the utmost humanity.’” Br. of Restore

the Fourth & Rutherford Institute, at 7 (quoting 4

Blackstone, Commentaries on the Laws of England 297

(1773)). Suffice it to say, that did not happen here.

-10More broadly, the respondents claim that the officers

did not use deadly force, but just “simple physical force”

to “protect themselves,” so death was “unexpected.” BIO

1-3. None of that is right. Again, this case challenges a

particular technique that has long been known to create

an unreasonably high risk of death and has generated

“overwhelming, long-standing nationwide agreement in

the policing community.” Br. of Policing Scholars, at 1821. Neither the decision below nor the respondents’

defense of it can be reconciled with this prevailing view.

Nor can they be squared with this Court’s precedents.

The petition spends a few pages explaining why (at 28-30),

the amicus briefs add compelling reasons of their own, and

the respondents offer no meaningful counter. So what it

comes to is this: “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.” Br. of NACDL & ACLU, at 4. Until

recently, that statement would have been uncontroversial,

universally accepted by lower courts and law enforcement

alike. But now the Eighth Circuit has held to the contrary,

splitting with six circuits and injecting uncertainty into the

law. This Court’s invention is thus urgently needed.

CONCLUSION

The petition for certiorari should be granted.

-11Respectfully submitted,

JONATHAN E. TAYLOR

Counsel of Record

Gupta Wessler PLLC

1900 L Street NW, Suite 312

Washington, DC 20036

(202) 888-1741

jon@guptawessler.com

NEIL K. SAWHNEY

Gupta Wessler PLLC

100 Pine Street, Suite 1250

San Francisco, CA 94111

(415) 573-0336

JOHN G. SIMON

KEVIN M. CARNIE, JR.

PATRICK R. MCPHAIL

The Simon Law Firm, PC

800 Market Street, Suite 1700

St. Louis, MO 63101

(314) 241-2929

ANDREW W. CALLAHAN

P.O. Box 15159

St. Louis, MO 63110

(618) 791-5501

November 12, 2020

Counsel for Petitioners