Supplemental 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

SUPPLEMENTAL 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

April 29, 2021

Counsel for Petitioners

-iTABLE OF CONTENTS

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

Supplemental brief ........................................................... 1

Conclusion ......................................................................... 4

-iiTABLE OF AUTHORITIES

Cases

Aguirre v. City of San Antonio,

2021 WL 1574046 (5th Cir. Apr. 22, 2021) ........ 1, 2, 3, 4

Drummond v. City of Anaheim,

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

Goode v. Baggett,

811 F. App’x 227 (5th Cir. 2020) .................................... 1

Articles

Jacyln Diaz, NPR, Man Dies After Alameda,

Calif., Police Pin Him To Ground For

Several Minutes (Apr. 28, 2021) .................................... 4

-1SUPPLEMENTAL BRIEF

Last week, the Fifth Circuit issued a decision in yet

another case where police officers held down a handcuffed

person and pushed into his back until he died. See Aguirre

v. San Antonio, — F.3d —, 2021 WL 1574046 (5th Cir.

Apr. 22, 2021). The decision largely adopts the reasoning

of Goode v. Baggett, 811 F. App’x 227 (5th Cir. 2020),

discussed in our petition (at 2, 25), and it is fundamentally

incompatible with the Eighth Circuit’s decision below.

In many ways, the facts of Aguirre mirror the facts

here: A man (Aguirre) “appeared mentally disturbed” and

was handcuffed and moved to the ground by officers. 2021

WL 1574046, at *1. One officer restrained his legs, while

another used “his body weight to hold Aguirre down, thus

applying pressure to [his] back.” Id. at *2. More officers

moved in, with some “placing their hands on [his] arms

and back to hold him prone,” and others standing around.

Id. Five and a half minutes later, Aguirre was dead. The

officers “noticed that Aguirre was no longer breathing”

and “turned him over.” Id. An autopsy revealed that the

officers’ force caused his death. Id. As to each of these

facts, the two cases are similarly situated. See Pet. 15–16.

The Fifth Circuit’s legal analysis, however, could not

be more different than the Eighth Circuit’s analysis in this

case. The Fifth Circuit not only held that these facts allow

a jury to find that the force was excessive, but also denied

qualified immunity to the officers. The court did so even

though the officers in Aguirre applied force for less than

six minutes—not fifteen minutes, as here. And it did so,

further, even though the situation was far “more tense,

fast-moving, and dangerous” than here—“a busy highway,

cars at high speeds, and a suspect” who had “attempted to

break away from the officers in the midst of the traffic.”

2021 WL 1574046, at *17 (Jolly, J., concurring).

-2In analyzing the question of excessive force, the Fifth

Circuit applied this Court’s totality-of-the-circumstances

test and held that a reasonable jury could easily find that

the intrusion on Aguirre’s liberty interests “outweighed

the Officers’ interest in placing and holding [him] in the

maximal-restraint position, rendering their utilization of

the technique unreasonable.” Id. at *5. The court reviewed

the same DOJ bulletin submitted into evidence in this case

and explained that it was “reasonable to infer that the San

Antonio Police Department received this bulletin that was

distributed to local law enforcement agencies across the

nation.” Id. at *8 n.10. And the court noted that (as in this

case) officers testified “that they suspected at the time of

the incident that Aguirre was on narcotics,” which placed

him at greater risk of death by asphyxiation. Id. at *9.

The Fifth Circuit also addressed the officers’ defense

that Aguirre “was resisting and they feared that he would

break away and run into traffic.” Id. at *5. The court found

that there were “genuine questions about whether it was

objectively reasonable” for officers to believe that Aguirre

was “even physically capable of posing an immediate

safety threat that would justify” such “extraordinarily

dangerous force.” Id. “Taken in the light most favorable

to Plaintiffs, th[e] summary judgment evidence indicates

that a reasonable office in the Officers’ position would have

known that applying the maximal-restraint position to

Aguirre and holding him in this position for an extended

period posed a substantial risk of causing his death.” Id.

at *9. The court thus held that, “if a jury concludes that

the Officers had reason to believe Aguirre was on drugs

and that he posed no threat of serious bodily harm at the

time the Officers used the maximal restraint position

against him, the Plaintiffs will have established that the

Officers violated Aguirre’s constitutional right to be free

from the unreasonable use of deadly force.” Id. at *10.

-3All three judges then agreed that the officers were not

entitled to qualified immunity, albeit for slightly different

reasons. See id. at *10–*14 (op. of Dennis, J.) (“[A]t least

five other circuits have held that . . . ‘it [is] clearly

established . . . 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.’” (citing the same cases as our

petition)); id. at *17 (Jolly, J., concurring) (opining that

the violation would be “obvious” if a jury were to find that

the use of force became “necessary to keep Aguirre from

fleeing, given the number of officers available to prevent

Aguirre from bolting into traffic”); id. at *18 (Higginson,

J., concurring) (opining that it was “clearly established”

that “the continued application of asphyxiating force may

be unreasonable where there is no ongoing threat posed”).

The Eighth Circuit’s decision below is deeply at odds

with the Fifth Circuit’s decision. It holds that six officers

were authorized as a matter of law to press into the body

and back of a man who was handcuffed and leg-shackled

in a prone position while having a mental-health crisis

inside of a secure cell—for fifteen minutes, until he died.

The court reached this conclusion even though the officers

testified that (1) they knew that he was “having a mentalhealth crisis” and (2) he “posed no threat.” Pet. 15. Still,

they continued to press into his back as “he attempted to

lift his body up” for air and said: “It hurts. Stop.” App. 36a.

Under Aguirre, these facts would be more than enough to

submit the case to the jury. See 2021 WL 1574046, at *10

(holding exactly that). But not in the Eighth Circuit.

Aguirre is also relevant for another reason: It serves

as one more reminder of the “unfortunate frequency” with

which these deaths recur. Drummond v. City of Anaheim,

343 F.3d 1052, 1063 (9th Cir. 2003). Sadly, it is not the only

-4recent example. Three days before the Fifth Circuit

issued its opinion, police in Alameda, California killed a

man by prone asphyxiation. In a subsequently released

video of the incident, “officers can be seen placing arms

and knees on his back to keep him restrained”—until he

“goes still after police pin him to the ground for several

minutes.” Jacyln Diaz, NPR, Man Dies After Alameda,

Calif., Police Pin Him To Ground For Several Minutes,

https://perma.cc/8WMD-X57C (Apr. 28, 2021). Then, the

very next day, a Minneapolis jury found Derek Chauvin

guilty of murdering George Floyd based on conduct that

could have been authorized under the decision below. So

as it stands, the same conduct, in the same circuit, can give

rise to a murder conviction under state criminal law, and

yet be deemed a reasonable use of force under federal

constitutional law. That is about as sensible as it sounds.

And this is just the news from last week. Fortunately,

this Court now has the chance to step in. Presented with a

clean vehicle to resolve the conflict on the constitutionality

of a police tactic that continues to cause so many

unnecessary deaths, this Court should not sit idly by. It

should grant certiorari, resolve the conflict, and reverse.

CONCLUSION

The petition for certiorari should be granted.

Respectfully 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

-5NEIL 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

April 29, 2021

Counsel for Petitioners