Petition for Writ of Certiorari — Jody Lombardo, et al., Petitioners v. City of St. Louis, Missouri, et al.

No. ____

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

PETITION FOR A WRIT OF CERTIORARI

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

JONATHAN E. TAYLOR

Counsel of Record

ALISA TIWARI

Gupta Wessler PLLC

2001 K Street, NW

Suite 850 North

Washington, DC 20006

(202) 888-1741

jon@guptawessler.com

ANDREW W. CALLAHAN

P.O. Box 15159

St. Louis, MO 63110

(618) 791-5501

Counsel for Petitioners

November 28, 2022

-iQUESTION PRESENTED

When officers put a handcuffed and shackled person

face-down on the floor and push into his back until he dies,

are they entitled to qualified immunity as a matter of law

because the person struggled to breathe before dying?

-iiLIST OF PARTIES TO THE PROCEEDINGS

Petitioners Jody Lombardo and Bryan Gilbert were

plaintiffs in the district court and appellants in the Eighth

Circuit. The following respondents were defendants in the

district court and appellees in the Eighth Circuit: City of

St. Louis; Ronald Bergmann; Joe Stuckey; Paul Wactor;

Michael Cognasso; Kyle Mack; Erich vonNida; Bryan

Lemons; Zachary Opel; Jason King; Ronald DeGregorio.

RELATED PROCEEDINGS

This case arises from the following proceedings:

•

Lombardo, et al. v. St. Louis City, et al., No. 16-cv1637 (E.D. Mo.) (memorandum and order granting

summary judgment, issued February 1, 2019);

•

Lombardo, et al. v. City of St. Louis, et al., No. 191469 (8th Cir.) (first opinion affirming summary

judgment, issued April 20, 2020);

•

Lombardo, et al. v. City of St. Louis, et al., No. 20391 (U.S.) (opinion granting certiorari, vacating the

Eighth Circuit’s judgment, and remanding the case

with specific instructions for the Eighth Circuit to

reconsider the issue in light of certain evidence in

the record, issued June 28, 2021);

•

Lombardo, et al. v. City of St. Louis, et al., No. 191469 (8th Cir.) (opinion on remand again affirming

summary judgment and again failing to analyze

any of the evidence specifically identified in this

Court’s opinion, issued June 29, 2022).

There are no other proceedings in state or federal trial

or appellate courts, or in this Court, directly related to this

case within the meaning of this Court’s Rule 14.1(b)(iii).

-iiiTABLE OF CONTENTS

Question presented .......................................................... i

List of parties to the proceedings................................... ii

Related proceedings ......................................................... ii

Table of authorities .......................................................... v

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

Opinions below .................................................................. 2

Jurisdiction ........................................................................ 2

Constitutional and statutory provisions involved......... 2

Statement .......................................................................... 3

A.

Factual background......................................... 3

B.

Procedural background................................... 9

Reasons for granting the petition .................................. 14

I.

The decision below again creates a circuit

split. ................................................................... 14

II.

The question presented is frequently

occurring and important, and this case is

an ideal vehicle. ................................................ 24

III.

The decision below is wrong. .......................... 27

Conclusion ......................................................................... 29

-iv-

Appendix A Opinion of the United States Court

of Appeals for the Eighth Circuit

(June 29, 2022) .................................. App. 1a

Appendix B Opinion of the United States

Supreme Court (June 28, 2021) .... App. 16a

Appendix C Opinion of the United States Court

of Appeals for the Eighth Circuit

(April 20, 2020) ................................. App. 27a

Appendix D Memorandum and Order of the

United States District Court for the

Eastern District of Missouri

(February 1, 2019) ........................... App. 37a

-vTABLE OF AUTHORITIES

Cases

Abdullahi v. City of Madison,

423 F.3d 763 (7th Cir. 2005) ....................15, 20, 21, 25

Abston v. City of Merced,

506 F. App’x 650 (9th Cir. 2013) ...............................17

Aguirre v. City of San Antonio,

995 F.3d 395 (5th Cir. 2021) ......................................16

Brosseau v. Haugen,

543 U.S. 194 (2004) .....................................................27

Champion v. Outlook Nashville, Inc.,

380 F.3d 893 (6th Cir. 2004) ..........................15, 19, 20

County of Los Angeles v. Mendez,

137 S. Ct. 1539 (2017) .................................................28

Drummond v. City of Anaheim,

343 F.3d 1052 (9th Cir. 2003) ........................14, 17, 24

Estate of Booker v. Gomez,

745 F.3d 405 (10th Cir. 2014) ....................................22

Fairchild v. Coryell County,

40 F.4th 359 (5th Cir. 2022) .......................................16

Garlick v. County of Kern,

167 F. Supp. 3d 1117 (E.D. Cal. 2016)......................18

Goode v. Baggett,

811 F. App’x 227 (5th Cir. 2020) ...............................17

Gutierrez v. City of San Antonio,

139 F.3d 441 (5th Cir. 1998) ......................................24

-viHope v. Peltzer,

536 U.S. 730 (2002) .....................................................25

Hopper v. Plummer,

887 F.3d 744 (6th Cir. 2018) ..........................15, 19, 20

Hyde v. City of Willcox,

23 F.4th 863 (9th Cir. 2022) .............................1, 13, 18

Kingsley v. Hendrickson,

576 U.S. 389 (2015) .....................................................28

Kisela v. Hughes,

138 S. Ct. 1148 (2018) ...........................................27, 28

Krecham v. County of Riverside,

723 F.3d 1104 (9th Cir. 2013) ....................................17

Kulpa v. Cantea,

708 F. App’x 846 (6th Cir. 2017) ...............................20

Lawhon v. Mayes,

2021 WL 5294931 (4th Cir. 2021) ........................15, 23

Lombardo v. City of St. Louis,

141 S. Ct. 2239 (2021) ........................................ passim

Lugar v. Edmondson Oil Co.,

457 U.S. 922 (1982) ....................................................25

Martin v. City of Broadview Heights,

712 F.3d 951 (6th Cir. 2013) ................................19, 20

McCue v. City of Bangor,

838 F.3d 55 (1st Cir. 2016) ...................................15, 23

Mullenix v. Luna,

577 U.S. 7 (2015) .........................................................27

-viiPlumhoff v. Rickard,

572 U.S. 765 (2014) .....................................................26

Richman v. Sheahan,

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

Rivas v. City of Passaic,

365 F.3d 181 (3d Cir. 2004) ..................................15, 22

Rivas-Villegas v. Cortesluna,

142 S. Ct. 4 (2021) .......................................................28

Taylor v. Riojas,

141 S. Ct. 52 (2020) ...............................................27, 28

Tennessee v. Garner,

471 U.S. 1 (1985) .........................................................24

Timpa v. Dillard,

20 F.4th 1020 (5th Cir. 2021) ............................ passim

Tucker v. Las Vegas Metropolitan Police

Department,

470 F. App’x 627 (9th Cir. 2012) ...............................18

Weigel v. Broad,

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

Wyatt v. Cole,

504 U.S. 158 (1992) .....................................................28

Yates v. Aiken,

484 U.S. 211 (1988) ...............................................14, 24

Ziglar v. Abbasi,

137 S. Ct. 1843 (2017) .................................................29

-viiiStatutes

18 U.S.C. § 242 .....................................................................25

42 U.S.C. § 1983 .....................................................................2

Other Authorities

Steven Brandl, Police in America (2018)...........................7

Mike Baker, Jennifer Valentino-DeVries, Manny

Fernandez, & Michael LaForgia, Three Words.

70 Cases. The Tragic History of ‘I Can’t Breathe.’,

N.Y. Times, June 29, 2020 ....................................... 7, 8

Lawrence Heiskell, How to Prevent

Positional Asphyxia, POLICE

Magazine, Sept. 9, 2019 ............................................... 7

Katie Wedell, Cara Kelly, Camille McManus,

& Christine Fernando, George Floyd is

not alone. ‘I can’t breathe’ uttered by

dozens in fatal police holds across U.S.,

USA Today, June 13, 2020 ......................................7, 8

Constitutional Provisions

U.S. Constitution Amendment IV ....................................... 2

U.S. Constitution Amendment XIV § 1 .............................. 2

-1INTRODUCTION

Twice now, the Eighth Circuit has held that there is no

claim for unconstitutionally excessive force when officers

put a handcuffed and shackled person face-down on the

floor and pushed on his back for 15 minutes until he died.

The first time, this Court granted certiorari, vacated

the Eighth Circuit’s judgment, and instructed the court on

remand to reconsider its holding in light of various factors

that it had failed to discuss. Lombardo v. City of St. Louis,

141 S. Ct. 2239, 2241–42 (2021). Even the three members

of this Court who dissented agreed that certiorari was

warranted. Id. at 2242 (Alito, J., dissenting).

Now the case returns to the Court after the same panel

reached the same result on remand. Although this time

the panel invoked the “clearly established” prong of the

qualified-immunity inquiry, it again held that a person’s

struggle to breathe constitutes “ongoing resistance” as a

matter of law, and that the defendants are entitled to

summary judgment for that reason alone. In defiance of

this Court’s mandate, the panel did so without analyzing

any of the factors that it had been instructed to consider.

And it did so even though multiple circuits had just held to

the contrary. See Timpa v. Dillard, 20 F.4th 1020, 1036 &

n.7 (5th Cir. 2021) (noting the consensus on the question

presented, and that “[o]nly the Eighth Circuit has held in

the reverse and the Supreme Court recently vacated that

decision”), cert. denied, 142 S. Ct. 2755 (2022); Hyde v.

City of Willcox, 23 F.4th 863, 871–72 (9th Cir. 2022).

This Court’s review is even more warranted now. The

Court should grant certiorari to protect the integrity of its

mandate, ensure uniformity on a frequently recurring

legal question, and promote public confidence in the

criminal-justice system. And it should make clear that, in

a civilized society, the panel’s answer is indefensible.

-2OPINIONS BELOW

The Eighth Circuit’s decision on remand is reported at

38 F.4th 684 and reproduced at 1a, while its initial decision

is reported at 956 F.3d 1009 and reproduced at 27a. The

district court’s decision is reported at 361 F. Supp. 3d 882

and reproduced at 37a.

JURISDICTION

The Eighth Circuit entered judgment on June 29,

2022. This Court has jurisdiction under 28 U.S.C. § 1254.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourth Amendment provides, in relevant part:

“The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated.” U.S. Const.

amend. IV.

The Fourteenth Amendment provides, in relevant

part: “No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.” U.S. Const. amend. XIV, § 1.

Section 1983 provides: “Every person who, under color

of any statute, ordinance, regulation, custom, or usage, of

any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit in equity,

or other proper proceeding for redress.” 42 U.S.C. § 1983.

-3STATEMENT

A.

Factual background

Nicholas Gilbert suffocates at the hands of St. Louis

City police. In December 2015, a 27-year-old homeless

man named Nicholas Gilbert was arrested on non-violent

misdemeanors. Lombardo, 141 S. Ct. at 2240. St. Louis

city police brought him to a holding facility for booking

and locked him in an individual cell. Id.

There was no video of what came next, and Gilbert

would not live to tell his side of the story, but officers said

that, at some point, Gilbert began to act strangely. Officer

Joe Stuckey testified that he noticed that Gilbert was

“exhibiting signs of impaired mental function,” suggesting

that he “could have mental issues,” “be highly agitated,”

or be on a “chemical substance.” App. 42a. Officer Stuckey

said that he “saw Gilbert tie a piece of clothing around the

bars of his cell and put it around his neck.” Lombardo, 141

S. Ct. at 2240. But rather than untying the item, taking it

away, and calling EMS, Officer Stuckey took a more

confrontational approach. He unlocked the cell door and

went inside, followed by Officer Roland DeGregorio and

Sergeant Ronald Bergmann. Id. At that point, “Gilbert did

not have any clothing tied to his neck,” App. 43a—one

officer said that it was still “tied to the door of the cell,”

JA1739—and Gilbert “just had his hands up.” JA2007.

A detainee in a nearby cell, however, testified that the

real reason the officers went into Gilbert’s cell was “to

make him be quiet.” JA1725. They “told him to shut up,”

and he “wouldn’t shut up.” Id. Even though Gilbert had

said “no threatening stuff,” the officers were “aggravated”

and “wanted him to be quiet.” JA1726. The witness saw

Officer Stuckey with “his chest poked out, and he was

putting his gloves on” before he “rushed in” and “tried to

make [Gilbert] be quiet.” JA1727–28. The witness then

-4heard “rumbling,” and saw “like five, six, seven other

police officers run through that same door.” Id.

Officer Stuckey testified that he opened the cell to put

Gilbert in handcuffs, and Gilbert tried “to avoid being

handcuffed.” App. 44a. Officer Stuckey and his two fellow

officers said that they were able to get Gilbert handcuffed

behind his back, but they claimed that Gilbert then bashed

his own head against a bench and kicked Stuckey. Id. Two

other officers came into the cell and applied leg-shackles

to Gilbert, and Sergeant Bergmann requested EMS. App.

5a. One officer who applied the shackles left to radio EMS

about “possible psychotic issues.” Id. Stuckey also left.

Shortly thereafter, Officer DeGregorio and Sergeant

Bergmann had become so “winded” and “exhausted” from

applying force to Gilbert (“who was five feet three inches

tall and weighed 160 pounds”) that they “stepped out” to

catch their breath. App. 41a, 46a–47a. They were relieved

by five officers—“leaving six officers in the cell with

Gilbert,” who was “handcuffed and in leg irons” by then.

Lombardo, 141 S. Ct. at 2240. “The officers moved Gilbert

to a prone position, face down on the floor.” Id.

These six officers spent the next 15 minutes pressing

down on Gilbert’s body. Id. They kept doing so even as

“Gilbert tried to raise his chest” for air and said: “It hurts.

Stop.” Id. “Three officers held Gilbert’s limbs down at the

shoulders, biceps, and legs,” while “[a]t least one other

placed pressure on Gilbert’s back and torso.” Id. Officer

Michael Cognasso testified that, as he was holding down

Gilbert’s legs, other officers applied pressure to Gilbert’s

“upper right side” and the “lower or middle part of his

torso.” JA1794. Officer Cognasso admitted that, once

Gilbert was “shackled and handcuffed [], he couldn’t harm

anyone at that point.” JA1795. Officer Bryan Lemons, who

was a foot taller than Gilbert and had 100 pounds on him,

-5admitted the same. He testified that he too was holding

down Gilbert’s legs, making it impossible for Gilbert to

kick anyone, and that Gilbert “stopped struggling . . .

when we got him handcuffed and secured.” JA275–80.

After 15 minutes of six officers pushing into “various

parts of [Gilbert’s] body, including [his] back,” App. 14a,

Gilbert succumbed to the pressure and stopped breathing.

The officers finally let up, and a short time later EMS

arrived. But it was too late. Gilbert had died. An autopsy

revealed that he had a “fractured sternum” and contusions

and abrasions on his shoulders and upper body. App. 8a.

A medical report said that the “cause of death was forcible

restraint inducing asphyxia,” while methamphetamine

and heart disease were “underlying factors.” App. 8a, 64a.

Afterward, the City admitted that deadly force was not

authorized because Gilbert was handcuffed and face-down

in a cell, and that the only possible government interest in

using any force on Gilbert was his own “self-preservation.”

JA1762–71. No officer involved in the incident, however,

identified any reason why they applied force specifically

to his back, let alone why such force had to be applied for

15 minutes. Nor was any officer disciplined. App. 50a.

The dangers of prone restraint. What happened to

Gilbert should not have come as a surprise. “Police have

known for decades that keeping individuals in the prone

position for an extended period of time imposes dangerous

health risks because it can interfere with the individual’s

ability to breathe,” causing “positional asphyxia.” Id. at 8–

9. Someone held in a prone position “gradually loses

oxygen,” which “can result in death.” Br. of Policing

Scholars in Lombardo, No. 20-391, at 8–12. This risk of

death rises exponentially when police also “press[] down

on the [person’s] back,” which “can cause suffocation”

more easily. Lombardo, 141 S. Ct. at 2241.

-6This is a well-documented danger. Over 25 years ago,

the United States Department of Justice conducted an

“analysis of in-custody deaths, [and] discovered evidence

that unexplained in-custody deaths are caused more often

than is generally known” by asphyxia. JA1930. It issued a

bulletin to “alert officers to those factors found frequently

in deaths involving positional asphyxia,” to enable them

“to respond in a way that will ensure the subject’s safety

and minimize risk of death.” Id. The DOJ bulletin

explained that drug use is a “major risk factor because

respiratory drive is reduced,” and that “frenzied

behavior” or a “violent struggle” can further “increase a

subject’s susceptibility to sudden death.” Id.

In addition, the DOJ bulletin described the “vicious

cycle of suspect resistance and officer restraint:

• A suspect is restrained in a face-down position,

and breathing may become labored.

• Weight is applied to the person’s back—the

more weight, the more severe the degree of

compression.

• The individual experiences increased difficulty

breathing.

• The natural reaction to oxygen deficiency

occurs—the person struggles more violently.

• The officer applies more compression to subdue

the individual.”

JA1930–31.

The DOJ bulletin gave specific guidelines to avoid this

cycle. It told law enforcement that “officers should learn

to recognize factors contributing to positional asphyxia,”

and issued a clear directive: “As soon as the suspect is

handcuffed, get him off his stomach.” JA1931. Even “[i]f

he continues to struggle, do not sit on his back.” JA1932.

-7After the DOJ bulletin, police departments warn

officers of the danger of “facedown compression holds,”

but the problem of in-custody asphyxia persists. Nearly

three decades later, the dangers of prone restraint are

now “well known in the law enforcement community.”

JA1783. Because of DOJ’s bulletin, “[d]epartments across

the United States . . . have for years warned officers about

the risks of moves such as facedown compression holds.”

Baker, Valentino-DeVries, Fernandez, & LaForgia, Three

Words. 70 Cases. The Tragic History of ‘I Can’t Breathe.’,

N.Y. Times, June 29, 2020, https://perma.cc/HMJ2-V2JJ.

“To alleviate potential dangers, [many] officers are

told now to promptly get detainees off their stomachs and

onto their sides—or up to a sitting or standing position.”

Id.; see Heiskell, How to Prevent Positional Asphyxia,

POLICE Magazine, Sept. 9, 2019, https://perma.cc/7N7QCQRQ. Moreover, because the dangers of asphyxiation

are made worse “by compressing the lungs, which the

weight of several persons on one’s back can do,” most

“police are [also] warned not to sit on the back of a person

they are trying to restrain.” Richman v. Sheahan, 512

F.3d 876, 880 (7th Cir. 2008); see Brandl, Police in

America 252 (2018) (“Do not sit or lean on the abdomen

EVER.”); Br. of Policing Scholars in Lombardo, at 18–21

(compiling examples from police departments across the

country). That is true “even if the subject is continuing to

struggle” after being handcuffed. See, e.g., Wedell, Kelly,

McManus, & Fernando, George Floyd is not alone. ‘I can’t

breathe’ uttered by dozens in fatal police holds across

U.S., USA Today, June 13, 2020, https://perma.cc/K2ZGYYVF (describing Kansas City police use-of-force policy).

Some agencies have gone further, “banning officers

from placing people in the face-down position” after

handcuffing them. Id. In 2009, for example, Ohio outlawed

-8prone restraint across all state agencies. JA1935. It did so

because “[a]ccepted research has shown that there is a

risk of death when restraining an individual in a prone

position,” and “[t]his research has led other states to

prohibit this restraint technique.” JA1970.

Despite increased awareness of the dangers, many

officers continue to put handcuffed subjects into a prone

position and push into their backs. And many people

continue to die as a result. One report concluded that, as

of 2020, “[a]t least 134 people have died in police custody

from ‘asphyxia/restraint’ in the past decade alone,” which

“is likely an undercount.” Wedell, Kelly, McManus &

Fernando, George Floyd is not alone. An examination of

some of these incidents “show[ed] that officers in agencies

big and small use restraint tactics that heighten people’s

risk of death,” including “pressing or laying on a person’s

back to keep them face down.” Id. The victims were often

“stopped for minor infractions” or “because they were

acting erratically due to drugs or mental illness.” Id.; see

also Baker, Valentino-DeVries, Fernandez, LaForgia,

Three Words. 70 Cases (finding similar results).

St. Louis City’s awareness of the problem. Like

other jurisdictions, the City of St. Louis “has known about

the dangers of compression asphyxia for a long time.”

JA1783; see JA1808 (City expert: “A lot of these protocols

were put in place” after the DOJ bulletin “telling officers

about the dangers of compression asphyxia.”). The City

knows that “it’s dangerous to hold a citizen in the prone

position for an extended period of time,” and that “a

citizen could be killed if too much weight is put on his

back.” JA1782; see also JA1809–10.

The City also knows that this is an area where training

matters. Its representative testified that the City tries to

“teach officers that it can be dangerous to hold someone in

-9a prone position” and that they “can’t just leave somebody

on their stomach cuffed.” JA1774–79. Its representative

further testified that the City “instructs its officers that

pressing down on the back of a prone subject can cause

suffocation,” Lombardo, 141 S. Ct. at 2241; JA1785, and

also teaches them “how to deal with emotionally disturbed

persons,” JA1777. One officer said that he covers it in his

training block and that it’s “been there forever.” JA1777–79.

B.

Procedural background

Nicholas Gilbert’s parents sued both the City of St.

Louis and the individual officers, alleging (among other

things) violations of the Fourth and Fourteenth

Amendments. Jurisdiction was based on 28 U.S.C. § 1331.

After the case was pared down to excessive-force claims

against the officers and Monell claims against the City,

the defendants sought summary judgment.

The district court’s decision. The district court

granted summary judgment on all claims. App. 100a. In

doing so, the court accepted the following facts as true:

• Gilbert “was having a mental health crisis and

posed no threat,” App. 58a;

• He was handcuffed and leg-shackled, and was then

held on the ground of a secure holding cell “in the

prone position for fifteen minutes,” App. 87a, 76a;

• While on the ground, his “actions were innocent”

and “based on ‘air hunger,’” App. 60a;

• He “was not ignoring commands or being violent,”

id.;

• “Officers used force upon his back,” App. 87a, as

well as his “sides,” “torso,” and “other parts of his

body,” App. 65a;

-10•

•

•

•

He “was ‘yelling pleas for help’ and pleading ‘It

hurts. Stop.’” App. 62a;

He “remained restrained and in a prone position

until he stopped breathing,” App. 68a;

Six officers “did not stop using force until after

they realized Mr. Gilbert had stopped breathing,”

App. 79a–80a;

“[T]he cause of death was asphyxiation.” App. 65a.

The district court did “not reach the issue of whether

[these] facts demonstrate that the [officers’] conduct was

objectively reasonable” and thus “violated a constitutional

right.” App. 97a–98a. Instead, it held that a violation was

not “clearly established” on these facts. Id. Citing several

unpublished decisions and a pair of Fifth Circuit cases as

support, the district court concluded that “the circuits are

split among and within themselves on cases with similar

facts.” App. 95a. It therefore granted qualified immunity.

As for the Monell claims, the district court concluded

that, because the officers are immune, “the City cannot be

held liable” under Eighth Circuit precedent. App. 99a.

The Eighth Circuit’s first decision. On appeal, the

Eighth Circuit held that there was no excessive force as a

matter of law. The court did not take issue with any of the

facts accepted as true by the district court. Yet it believed

that the case was controlled by a 2017 Eighth Circuit

opinion, which it read as holding that “prone restraint is

not objectively unreasonable when a detainee actively

resists.” App. 33a. “The court went on to describe as

‘insignificant’ facts that may distinguish that precedent

and appear potentially important,” “including that Gilbert

was already handcuffed and leg shackled when officers

moved him to the prone position and that officers kept him

in that position for 15 minutes.” Lombardo, 141 S. Ct. at

-112241. Nor did the court ascribe any significance to the

amount of force used (the weight of six officers) and the

fact that “officers put weight on various parts of [Gilbert’s]

body, including [his] upper” and “middle” back. App. 31a.

The court held that the full amount of force used was

justified as a matter of law because Gilbert had initially

resisted being handcuffed, and because his “attempt to

breathe” constituted “ongoing resistance.” App. 35a.

This Court’s decision. This Court granted certiorari.

It vacated the Eighth Circuit’s judgment and “remand[ed]

the case to give the court the opportunity to employ an

inquiry that clearly attends to the facts and circumstances

in answering [two] questions”—“whether the officers used

unconstitutionally excessive force” and, “if they did,

whether Gilbert’s right to be free of such force in these

circumstances was clearly established at the time of his

death” in December 2015. Lombardo, 141 S. Ct. at 2242.

The Court made clear that the panel should consider

several “facts and circumstances” in particular: (1) “that

Gilbert was already handcuffed and leg shackled when

officers moved him to the prone position,” (2) “that officers

kept him in that position for 15 minutes,” (3) “that officers

placed pressure on Gilbert’s back even though St. Louis

instructs its officers that pressing down on the back of a

prone subject can cause suffocation,” and (4) the “wellknown police guidance recommending that officers get a

subject off his stomach as soon as he is handcuffed because

of that risk” and “further indicat[ing] that the struggles of

a prone suspect may be due to oxygen deficiency, rather

than a desire to disobey officers’ commands.” Id. at 2241.

The Court explained that this evidence “may be

pertinent” to the two questions. Id. Because the panel

“either failed to analyze such evidence or characterized it

as insignificant,” the Court remanded the case for the

-12panel to conduct a more “careful, context-specific

analysis”—not simply “treat Gilbert’s ‘ongoing resistance’

as controlling as a matter of law.” Id. at 2241–42.

Three members of this Court favored a plenary grant.

Id. at 2242 (Alito, J., dissenting). They preferred to decide

the “real issue”: “whether the record supports summary

judgment” for the defendants. Id. Although they did not

know how they would answer that question, id. at 2244,

they believed that a “decision by this Court on the

question presented here could be instructive,” id. at 2242.

Developments on remand. On remand, the petitioners

requested the opportunity to submit supplemental

briefing to help the panel decide whether, as other circuits

have uniformly held, “the law was clearly established that

applying pressure to [a person’s] back, once he [is]

handcuffed and his legs [are] restrained, [is]

constitutionally unreasonable due to the significant risk of

[suffocation].” Weigel v. Broad, 544 F.3d 1143, 1155 (10th

Cir. 2008), cert. denied, 129 S. Ct. 2387 (2009). The panel

declined.

In the months that followed, the consensus in the other

circuits only strengthened. The Fifth Circuit held that it

was “clearly established” that “continuing to kneel on the

back of an individual who has been subdued”—“meaning,

he lacks any means of evading custody and does not pose

a threat of immediate harm”—is excessive. Timpa, 20

F.4th at 1029, 1034. Though the officers argued that the

decedent had “continued to actively resist,” the court held

that a “jury could find that an objectively reasonable

officer with [their] training would have concluded that [he]

was struggling to breathe, not resisting arrest.” Id. at

1030–31. A month later, the Ninth Circuit agreed.

Denying qualified immunity, it held that a jury could find

that when someone is “handcuffed,” “shackled,” and

-13“surrounded by seven officers,” the officers “should have

recognized” that he “could no longer resist” and “posed no

threat.” Hyde, 23 F.4th at 871–72.

The Eighth Circuit’s second decision. The panel

again broke from the consensus. Despite this Court’s

opinion, the panel did not discuss the significance of

Gilbert’s being “already handcuffed and leg shackled

when officers moved him to the prone position,” or

articulate how he could have meaningfully resisted at that

point. 141 S. Ct. at 2241. It did not discuss the significance

of the “officers ke[eping] him in that position for 15

minutes” or “plac[ing] pressure on [his] back even though

St. Louis instructs its officers that pressing down on the

back of a prone subject can cause suffocation.” Id. It did

not discuss any of the “well-known police guidance” saying

the same. Id. And it did not discuss the defendants’

concessions that deadly force was not authorized, JA1762–

71, and that once Gilbert was “shackled and handcuffed [],

he couldn’t harm anyone at that point,” JA1795.

Instead, the panel relied on a 2019 Eighth Circuit

decision that involved none of these facts and that was

decided several years after Gilbert’s death. App. 11a–12a.

Because of that decision—and because Gilbert had tried

to breathe while he was on the floor handcuffed, shackled,

and surrounded by six officers—the panel held that he did

not have a clearly established right to be free of force to

“various parts of his body, including his back.” App. 14a.

The court also held that “there is no robust consensus of

persuasive authority that would render the right clearly

established.” App. 12a. It did not mention Timpa, Hyde,

or numerous other circuit cases holding to the contrary.

Having “concluded that the constitutional right at

issue here was not clearly established,” the panel further

-14held that the petitioners “cannot prevail on [their] claims

against the City.” App. 15a (cleaned up).

REASONS FOR GRANTING THE PETITION

Despite this Court’s mandate, the Eighth Circuit has

again held that a person’s attempt to breathe while bound

on the floor constitutes “ongoing resistance” as a matter

of law. App. 14a. It has again treated this “resistance” as

controlling, absolving the very conduct that caused the

inability to breathe in the first place (and that then caused

the person’s death). And it has again failed to analyze any

of the key factors identified in this Court’s opinion. The

only difference this time is that the panel invoked step two

of the qualified-immunity inquiry, holding that a person

engaged in such “ongoing resistance” has no “clearly

established right” to be free of deadly force to his back. Id.

This decision is even more in need of review than the

first. Disregarding this Court’s mandate is reason enough

to grant certiorari. See Yates v. Aiken, 484 U.S. 211, 214

(1988). But the panel’s decision does more than that: It

also conflicts with the law of the other circuits and with

prevailing police practices. See Timpa, 20 F.4th at 1036 &

n.7 (“Only the Eighth Circuit has held in the reverse.”).

And it does so on a question that recurs with “unfortunate

frequency,” Drummond v. City of Anaheim, 343 F.3d

1052, 1063 (9th Cir. 2003), cert. denied, 124 S. Ct. 2871

(2004), where a decision from this Court “could be

instructive” to lower courts and law enforcement alike,

Lombardo, 141 S. Ct. at 2242 (Alito, J., dissenting).

I.

The decision below again creates a circuit split.

A. Like last time, the panel’s decision conflicts with the

uniform rule in the other circuits. Every other circuit to

have addressed the question holds that “[n]o reasonable

officer would continue to put pressure on [an] arrestee’s

-15back 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), cert. denied, 125 S. Ct. 1837 (2005). In

those circuits, it has long been “clearly established that

applying pressure to [a prone person’s] back, once he [is]

handcuffed and his legs restrained, [is] constitutionally

unreasonable due to the significant risk of positional

asphyxiation.” Weigel, 544 F.3d at 1155; see, e.g., Timpa,

20 F.4th at 1029–38; Lawhon v. Mayes, 2021 WL 5294931,

*2 & nn.1–2 (4th Cir. 2021); Hopper v. Plummer, 887 F.3d

744, 755 (6th Cir. 2018), cert. denied, 139 S. Ct. 567 (2019);

McCue v. City of Bangor, 838 F.3d 55, 64 (1st Cir. 2016);

Abdullahi v. City of Madison, 423 F.3d 763, 765–69 (7th

Cir. 2005); Rivas v. City of Passaic, 365 F.3d 181, 199–200

(3d Cir. 2004). And that is true even if—indeed, especially

if—the person is struggling to lift his chest up for air.

Fifth Circuit. The Fifth Circuit’s recent decision in

Timpa provides a good starting place. The “facts and

circumstances” of that case are indistinguishable from

those here. See Lombardo, 141 S. Ct. at 2241–42. Like this

case, it involved someone who, after being bound at his

hands and feet, was put in “a prone position” for 14

minutes as an officer “placed pressure on [his] back”

despite his pleas to stop. Id. at 2240. And like this case, the

record in Timpa included the same “well known police

guidance” and evidence showing that “officers placed

pressure on [his] back even though [the city] instruct[ed]

its officers that pressing down on the back of a prone

subject can cause suffocation.” Id. at 2241.

Unlike the Eighth Circuit, however, the Fifth Circuit

denied qualified immunity. It held that, by 2016 (when the

incident there occurred), the law had long been “clearly

established that an officer engages in an objectively

-16unreasonable [use] of force by continuing to kneel on the

back of an individual who has been subdued”—“meaning,

he lacks any means of evading custody and does not pose

a threat of immediate harm.” Timpa, 20 F.4th at 1029,

1034. “This conclusion,” Judge Clement explained in her

opinion for the court, “comports with the decisions of our

sister circuits that have considered similar facts.” Id. at

1036 & n.7 (noting Lombardo as the only outlier).

In reaching this conclusion, the Fifth Circuit expressly

rejected the same argument accepted by the panel below.

It held that there was a factual dispute as to whether the

decedent had “continued to actively resist arrest” in “the

final minutes of the restraint” (as the officers contended)

or whether he was instead trying “to move his body in

order to breathe” (as the plaintiffs contended). Id. at 1030–

31. Were it the latter, the Fifth Circuit held, the jury could

find that the officers were not entitled to qualified

immunity. It could find that “[t]he risks of asphyxiation in

this circumstance should have been familiar” to them, so

“an objectively reasonable officer with [their] training

would have concluded that [the decedent] was struggling

to breathe, not resisting arrest.” Id. at 1031. And the jury

could find, further, that if he “lacked the ability to pose a

risk of harm or flight,” the continued force to his back

“constituted deadly force,’” which was “necessarily

excessive,” defeating immunity. Id. at 1032, 1034, 1038.

Other Fifth Circuit cases hold likewise. See Fairchild

v. Coryell County, 40 F.4th 359, 368 (5th Cir. 2022) (two

minutes of force to back); Aguirre v. City of San Antonio,

995 F.3d 395, 416 (5th Cir. 2021) (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

-17constitutes excessive force.’”); Goode v. Baggett, 811 F.

App’x 227, 232 (5th Cir. 2020) (holding that when a

handcuffed person was “pinned down by multiple officers

and appeared to be struggling to breathe, a jury could find

that he was ‘merely trying to get into a position where he

could breathe and was not resisting arrest’”).

The panel’s decision squarely conflicts with these

cases. It holds that the officers are entitled to qualified

immunity even if a jury were to find that Gilbert “was not

ignoring commands or being violent,” and that his “actions

were innocent” and “based on ‘air hunger.’” App. 60a. The

Fifth Circuit has repeatedly held the opposite.

Ninth Circuit. So has the Ninth Circuit. Two decades

ago, it observed that, “in what has come to be known as

‘compression asphyxia,’ prone and handcuffed individuals

in an agitated state have suffocated under the weight of

restraining officers.” Drummond, 343 F.3d at 1056–57.

The court held that a jury could find that the force was

excessive when “two officers continued to press their

weight on [a detainee’s] neck and torso as he lay

handcuffed on the ground and begged for air.” Id. at 1056.

The Ninth Circuit has held firm to this view ever since.

See Krecham v. County of Riverside, 723 F.3d 1104, 1108

(9th Cir. 2013) (reversing judgment for officers who put

someone in a prone position and pushed on his “back ‘when

he was moving and attempting to get up’” and “repeatedly

kicking”); Abston v. City of Merced, 506 F. App’x 650, 652

(9th Cir. 2013) (“A [jury] could conclude that defendants’

use of body compression as a means of restraint was

unreasonable and unjustified by any threat of harm or

escape when Abston was handcuffed and shackled, in a

prone position, and surrounded by numerous officers.”);

Tucker v. Las Vegas Metro. Police Dep’t, 470 F. App’x 627,

629 (9th Cir. 2012) (“[E]xisting law recognized a Fourth

-18Amendment violation where two officers use their body

pressure to restrain a delirious, prone, and handcuffed

individual who poses no serious safety threat.”).

The Ninth Circuit’s cases therefore “make[] plain that

multiple officers’ use of prolonged body-weight pressure

to a suspect’s back is known to be capable of causing

serious injury or death.” Garlick v. County of Kern, 167 F.

Supp. 3d 1117, 1155 (E.D. Cal. 2016). Moreover, whether

a suspect was continuing to resist or instead struggling to

breathe, and how officers should have reacted given their

training, are questions for the factfinder. See Tucker, 470

F. App’x at 629 (“Keith, unlike Drummond, continued to

resist the officers after handcuffs were applied, but this

distinction does not, by itself, suffice to bring this case out

of Drummond’s orbit.”).

Just last year, the Ninth Circuit reaffirmed the point

in Hyde, 23 F.4th 863 (Bea, Lee, Bennett, JJ.). It denied

qualified immunity to officers who continued using force

on a handcuffed and shackled detainee, causing him to

suffocate, even though he had initially resisted. Judge Lee

explained that when someone is “handcuffed,” “shackled,”

and “surrounded by seven officers,” a jury could find that

he “posed no threat” and “could no longer resist,” and that

the officers “should have recognized” as much. Id. at 871–

72; see id. (“[W]e have never required that a suspect’s

every inch be immobilized before he is considered

restrained for a reasonable force analysis.”). Were the

jury to do so, the officers would not be entitled to qualified

immunity because it has long been clearly established that

using even “intermediate force” is “unreasonable when

[the person] had both his hands and feet shackled for two

minutes and no longer could resist.” Id. at 872.

Sixth Circuit. The Sixth Circuit’s cases reflect the

same understanding. They too recognize that, when

-19officers cause someone to suffocate, a jury may draw “an

inference” that the person’s efforts to lift his chest were

“an attempt to gasp for air and escape the compressive

weight of the officers on top of him, not an effort to fight

with the officers or get away.” Martin v. City of

Broadview Heights, 712 F.3d 951, 959–63 (6th Cir. 2013).

The Sixth Circuit’s most recent case, Hopper, is its

most analogous. There, a man “suffered a seizure two days

after he was booked” into jail on a non-violent offense. 887

F.3d at 745. Officers went into his cell and forced him to

the ground because they were “afraid he would . . . hurt

himself.” Id. at 749. Video evidence showed that they

“cuffed him behind his back” and a half-dozen officers

“restrained him face down on the floor” until he “died after

a twenty-two minute struggle.” Id. at 745.

The Sixth Circuit held that a jury could find that the

officers were not entitled to qualified immunity. It relied

primarily on its 2004 decision in Champion, involving “an

excessive-force claim brought by the family of a severely

autistic man who died after several arresting officers

restrained him, prone on the ground and handcuffed

behind his back, for seventeen minutes.” Id. at 754.

Champion “explained that ‘[c]reating asphyxiating

conditions by putting substantial or significant pressure,

such as body weight, on the back of an incapacitated and

bound suspect constitutes objectively unreasonable

excessive force.’” Id. (quoting Champion, 380 F.3d at 903).

That was true even though the suspect “arguably posed a

threat” because he “had created a disturbance in a store

and ‘kick[ed] violently’ while on the ground.” Id. at 755

(quoting Champion, 380 F.3d at 897). In Hopper, by

contrast, there was “no dispute that [the decedent] was

suffering a medical emergency, or that while he may have

kicked and thrashed, defendants did not consider him a

-20threat to anyone after he was handcuffed.” Id. The court

thus denied qualified immunity as a matter of law, holding

that “the prohibition against placing weight on [his] body

after he was handcuffed was clearly established in the

Sixth Circuit as of May 2012.” Id. at 754 (cleaned up).

As Hopper itself illustrates, that clearly established

prohibition applies even if the person being restrained was

“moving . . . in an attempt to breathe.” Champion, 380

F.3d at 905; see also Martin, 712 F.3d at 959 (holding that

a jury may infer that a person’s “physical movements” and

“active[] struggle[]” “were an attempt to gasp for air”);

Kulpa v. Cantea, 708 F. App’x 846, 851–53 (6th Cir. 2017)

(denying qualified immunity to officers who pushed on the

back of a handcuffed detainee for under 45 seconds after

he’d been “squirming,” causing him to die).

Seventh Circuit. The Seventh Circuit has the same

rule. In 2005, it considered a far closer case than this one,

involving a man (Mohamed) who “stagger[ed] across three

lanes of traffic” and “punched [a person] in the face.”

Abdullahi, 423 F.3d at 764–65. Three officers “took him to

the ground, onto his stomach,” to handcuff him. Id. “Once

on the ground, Mohamed began kicking his legs, moving

his arms so they could not be handcuffed and arching his

back upwards as if he were trying to escape.” Id. As the

other officers were holding his legs, one officer “placed his

right knee and shin on the back of Mohamed’s shoulder

area and applied his weight to keep Mohamed from

squirming or flailing.” Id. The officer “took his weight off

Mohamed after the handcuffing was complete.” Id. His

“knee and shin were on the back of Mohamed’s shoulder

for approximately 30–45 seconds.” Id. Civilian

eyewitnesses “testified that Mohamed acted aggressively

and that the defendant police officers did not hit, strike or

choke Mohamed.” Id. at 767. Two minutes later, he died.

-21The Seventh Circuit reversed a grant of summary

judgment to the officers. It noted that the officer “knelt on

Mohamed’s shoulder or back for 30–40 seconds while

Mohamed was prone on the ground,” Mohamed then died,

and “[n]o one contends that deadly force was justified once

Mohamed was lying prone on the ground with his arms

behind him.” Id. at 769. “Based on these straightforward

facts alone,” the Seventh Circuit held that summary

judgment was improper. Id. It explained that Mohamed’s

“attempts to ‘squirm’ or arch his back upward while he

was being restrained may not constitute resistance at all,

but rather a futile attempt to breathe while suffering from

physiological distress ‘akin to drowning.’” Id. at 771–73.

Tenth Circuit. The Tenth Circuit has held similarly.

In 2008, it decided a case not unlike Abdullahi, involving

a dangerous roadside encounter where one officer applied

force to a combative suspect. The suspect (Weigel) “fought

vigorously, attempting repeatedly to take the troopers’

weapons and evade handcuffing.” Weigel, 544 F.3d at

1148. After he was finally handcuffed, Weigel “continued

to struggle.” Id. at 1158 (O’Brien, J., dissenting). “With

Weigel positioned on his stomach, his hands and feet

restrained, [one officer then] held down Weigel’s upper

body with his hands and/or knees, [another officer]

straddled Weigel’s buttocks and [a civilian] was on his

legs. In spite of those restraints Weigel still managed to

pinch [one officer’s] thighs and groin area” and “continued

to struggle and fight.” Id. He was held in that position for

up to three minutes, and then died. Id. at 1152.

The Tenth Circuit denied summary judgment to the

officers. It based its conclusion on two things: “First, there

is evidence a reasonable officer would have known that the

pressure placed on Mr. Weigel’s upper back as he lay on

his stomach created a significant risk of asphyxiation and

-22death. His apparent intoxication, bizarre behavior, and

vigorous struggle made him a strong candidate for

positional asphyxiation.” Id. “Second, there is evidence

that Mr. Weigel was subjected to such pressure for a

significant period after it was clear that the pressure was

unnecessary to restrain him. The defendants make no

claim that once Mr. Weigel was handcuffed and his legs

were bound, he still would pose a threat to the officers, the

public, or himself unless he was maintained on his stomach

with pressure imposed on his upper back.” Id. The court

held that the law “was clearly established that applying

pressure to [his] upper back, once he was handcuffed and

his legs restrained, was constitutionally unreasonable”

because it posed a “substantial and totally unnecessary

risk of death,” while observing that “cases from other

circuits” agree. Id. at 1154–55.

Judge O’Brien dissented, expressing disagreement

with the Sixth Circuit’s holding in Champion that “briefly

applying pressure to the torso of a resisting but restrained

individual is unconstitutional.” Id. at 1174. But after

Weigel, that is now the Tenth Circuit’s rule too. See Est. of

Booker v. Gomez, 745 F.3d 405, 424–29 (10th Cir. 2014).

Third Circuit. The same goes for the Third Circuit.

For nearly 20 years, 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”—namely,

“press[ing] down on [his] back” until he was “still,”

causing him to “die[] of asphyxiation”—is excessive under

“clearly established” law. Rivas, 365 F.3d at 199–201.

First Circuit. The First Circuit, too, is in accord. In

2016, it confronted a case much like this one: Five officers

“attempted to restrain” someone “who initially resisted,”

so they put him “in a face-down, prone position for [up to

four minutes] while two officers exerted weight on his

-23back and shoulders.” McCue, 838 F.3d at 56. He “was

declared dead shortly after,” and an expert “attributed the

likely cause of death to prolonged restraint in the prone

position ‘under the weight of multiple officers, in the face

of a hypermetabolic state of excited delirium.’” Id.

The First Circuit held that “it was clearly established”

that “exerting significant, continued force on a person’s

back ‘while [he] is in a face-down prone position after

being subdued and/or incapacitated constitutes excessive

force,’” for “[a]t least four circuits had announced this

constitutional rule.” Id. at 64 (quoting Weigel, 544 F.3d at

1155)). “[A]s the abundant case law demonstrates, a jury

could find that a reasonable officer would know or should

have known about the dangers of exerting significant

pressure on the back of a prone person.” Id. at 65.

Fourth Circuit. Finally, the Fourth Circuit has also

taken note of this “abundant case law.” Id.; see Lawhon,

2021 WL 5294931, at *2 n.1. It denied qualified immunity

to officers who had “applied varying degrees of force” for

“nearly six minutes” to someone who was “handcuffed in

the prone position.” Id. at *1. The court held that, under

“[c]ontrolling authority,” the officers “had abundant

notice that they could not continue to use force against a

restrained individual in these circumstances,” a conclusion

that was “amplifie[d]” by the training that they’d received.

Id. at *2 & n.2. Simply put: “There is no doubt that

continuing to apply force to a secured unarmed man, to

effectuate a seizure for which the individual’s own benefit

provides the only justification, constitutes excessive force

in violation of the Fourth Amendment.” Id. at *2.

B. The decision below upends the consensus, creating

an undeniable circuit conflict. Although the Eighth Circuit

panel on remand tried to distinguish three of these cases

on their facts—Weigel, Champion, and Drummond—it

-24did not deny that the rule of law articulated in them would

apply here. Nor did it make any effort to discuss any of the

other cases that squarely conflict with its holding.

II. The question presented is frequently occurring

and important, and this case is an ideal vehicle.

A. The split should be resolved for five reasons.

First, the panel contravened not only the decisions of

many other circuits in many other cases, but also the

mandate of this Court in this case. That is an independent

reason to grant certiorari. See, e.g., Yates, 484 U.S. at 214

(“We granted certiorari because we were concerned that

the [court below] had not fully complied with our

mandate.”).

Second, the question is important. “The compression

asphyxia that resulted [here] appears with unfortunate

frequency in the reported decisions of the federal courts,”

and “with even greater frequency on the street.”

Drummond, 343 F.3d at 1063. That remains true today.

Third, while the issue is frequently recurring in lower

courts, it hasn’t been decided by this Court. “Although

guns represent the paradigmatic example of ‘deadly

force,’ [Tennessee v. Garner, 471 U.S. 1 (1985)] failed to

address whether other police tools and instruments can

also be characterized as ‘deadly force.’ Lower courts since

have struggled with [that question],” including in some

cases involving “restraint in a prone position.” Gutierrez

v. City of San Antonio, 139 F.3d 441, 446 (5th Cir. 1998).

Early prone-restraint cases prompted disagreement and

confusion among judges in cases far closer than this one.

The dissenting judge in Weigel, for example, lamented

what he saw as a lack of “coherent guidance” caused by

“conflicting” decisions. 544 F.3d at 1169 (O’Brien, J.,

dissenting); see also Abdullahi, 423 F.3d at 776 (Evans, J.,

-25dissenting). And 21 states urged this Court to grant

certiorari in Weigel, explaining that “officers need to know

whether and to what extent” forcible prone restraint is

permissible. Br. of Indiana, et al., in Broad v. Weigel, No.

08-1128, at 3. They argued that the “[c]ircuits [were] in

disarray over whether and to what extent police control

techniques resulting in positional asphyxia violated clearly

established” rights, and the Court “need[ed] to” resolve

the question “given the unfortunate volume of such cases.”

Id. at 4. Since this Court denied certiorari nearly 15 years

ago, a strong consensus has emerged in the circuits. The

panel decision below, and the outlier view that it reflects,

threatens this consensus, injecting uncertainty into an

area of the law where a lack of guidance is unacceptable.

For that reason, an opinion from this Court “could be

instructive.” Lombardo, 141 S. Ct. at 2242 (Alito, J.,

dissenting). It could help to make these incidents less

frequent, by sending a clear and unmistakable message

that the Constitution forbids such an unjustifiable use of

lethal force. In addition, granting certiorari would allow

the Court to clarify how courts should handle assertions of

qualified immunity at summary judgment, including how

to assess an officer’s claim that a subject was resisting,

which could affect cases well beyond the context here.

Fourth, the panel’s decision could hinder DOJ’s ability

to criminally prosecute prone-restraint cases under 18

U.S.C. § 242, the “criminal counterpart” of section 1983,

Lugar v. Edmondson Oil Co., 457 U.S. 922, 929 n.13

(1982), which contains the same “clearly established”

requirement, Hope v. Peltzer, 536 U.S. 730, 739–40 (2002).

Finally, if left standing, the panel’s decision will likely

have ramifications the next time an officer in the Eighth

Circuit—whether in Minneapolis or Ferguson—puts a

handcuffed person face to the ground and suffocates him.

-26The 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.

The Court should not hesitate to set that circuit right.

B. This case is an excellent vehicle to address the

question presented and bring uniformity and clarity to the

law. The Court is already familiar with the record in the

case, and the most important facts are all assumed, having

been taken as true by the district court. And granting

certiorari in this case, as opposed to a future Eighth

Circuit case, is preferable because (1) it allows the Court

to simultaneously reinforce the integrity of its mandates,

and because (2) the incident here occurred before the 2017

Eighth Circuit case that the panel initially found to be

controlling and that Justice Alito discussed in his opinion,

see App. 33a–35a, so that case can have no complicating

effect on the “clearly established” question here.

In addition, this case bears all the characteristics of a

typical prone-restraint death by asphyxiation. So deciding

the constitutionality of the force used “will be ‘beneficial’

in ‘develop[ing] constitutional precedent’ in an area that

courts typically consider in cases in which the defendant

asserts a qualified immunity defense,” as in this case.

Plumhoff v. Rickard, 572 U.S. 765, 774 (2014). Yet the case

is also an egregious example of excessive force: Gilbert

was in a police-dominated facility, officers knew that he

was having a mental-health crisis, and lethal force was not

authorized by the City because he presented no threat

once he was handcuffed and shackled. JA1762.

-27III. The decision below is wrong.

This leads to the last reason to grant certiorari: The

Eighth Circuit’s decision is deeply wrong. It cannot be

reconciled with precedent, history, original public

meaning, or widely accepted police practice.

Under this Court’s precedents, a right is “clearly

established” when it is “sufficiently clear that every

reasonable official would have understood that what he is

doing violates that right.” Mullenix v. Luna, 577 U.S. 7,

11 (2015) (per curiam). “Precedent involving similar facts

can help move a case beyond the otherwise ‘hazy borders

between excessive and acceptable force’ and thereby

provide an officer notice that a specific use of force is

unlawful.” Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018)

(per curiam). Alternatively, “in an obvious case,” a

violation can be clearly established “even without a body

of relevant case law.” Brosseau v. Haugen, 543 U.S. 194,

199 (2004) (per curiam); see Taylor v. Riojas, 141 S. Ct. 52,

53–54 (2020) (per curiam).

Here, viewing the record in the light most favorable to

the petitioners, there is no question that the officers had

notice that pressing into Gilbert’s back for 15 minutes was

unreasonably excessive, in violation of the Constitution.

Eight circuits have recognized that the right at issue in

this case was clearly established at the time of Gilbert’s

death. No precedent from any circuit had held to the

contrary at that time. And prevailing police practices—

including the very training that the officers received in

this case—embodied the same recognition. It is hard to

imagine a case with clearer notice than that.

In any event, it is obvious that officers may not use a

significant amount of force on an individual who poses no

threat to anyone, and the record here would allow a jury

to find that the officers did just that. That sets this case

-28apart from a situation requiring an officer to make a splitsecond decision in response to a potential threat to officer

safety or to the safety of others. See Rivas-Villegas v.

Cortesluna, 142 S. Ct. 4 (2021); Kisela, 138 S. Ct. 1148. In

contrast with that situation, a jury could easily find that

Gilbert was not “actively resisting” and that a trained

officer would not have “reasonably perceived” him to be

resisting for 15 minutes or posing a real threat once he was

handcuffed, shackled, and surrounded by six officers.

Lombardo, 141 S. Ct. at 2241. Instead, a reasonable officer

would have understood, consistent with the City’s training

and with “well-known police guidance,” that Gilbert’s

struggles were “due to oxygen deficiency, rather than a

desire to disobey officers’ commands,” and would have

stopped applying force to his back. Id.

In addition, “[t]he [Eighth] Circuit identified no

evidence that the” officers’ actions “were compelled by

necessity or exigency.” Riojas, 141 S. Ct. at 54. Nor could

it: The defendants themselves conceded that, once Gilbert

was “shackled and handcuffed [], he couldn’t harm anyone

at that point,” and that deadly force was not authorized.

JA1762–71, 1795. Neither the defendants nor the Eighth

Circuit pointed to any governmental interest that was

advanced by applying any force to Gilbert’s back—much

less force that was so significant that it killed him. See

Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015); County

of Los Angeles v. Mendez, 137 S. Ct. 1539, 1546 (2017).

If the Eighth Circuit were somehow correct that the

officers in this case are all entitled to qualified immunity

under existing doctrine, that would only underscore the

need for this Court to grant certiorari. Were that the case,

it would be appropriate for the Court to reexamine the

modern qualified-immunity doctrine, and the degree to

which it has strayed from the text of section 1983 and the

-29common law, to bring it closer in line with “historical

standards.” Wyatt v. Cole, 504 U.S. 158, 170–72 (1992)

(Kennedy, J., concurring); see also Ziglar v. Abbasi, 137

S. Ct. 1843, 1872 (2017) (Thomas, J., concurring in part

and concurring in the judgment).

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,

JONATHAN E. TAYLOR

Counsel of Record

ALISA TIWARI

Gupta Wessler PLLC

2001 K Street NW

Suite 850 North

Washington, DC 20006

(202) 888-1741

jon@guptawessler.com

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 28, 2022

Counsel for Petitioners