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

No. 22–510

In the Supreme Court of the United States

JODY LOMBARDO, ET AL.,

v.

Petitioners,

CITY OF ST. LOUIS, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Eighth Circuit

BRIEF OF THE NATIONAL ASSOCIATION

OF CRIMINAL DEFENSE AS

AMICUS CURIAE IN SUPPORT OF PETITIONERS

JEFFREY T. GREEN

Co-Chair, Amicus Curiae

Committee

NATIONAL ASSOCIATION

OF CRIMINAL DEFENSE

LAWYERS

1660 L Street, N.W. #12

Washington, DC 20005

JON LOEVY

STEVE ART

Counsel of Record

DAVID B. OWENS

STEVE WEIL

LAUREN CARBAJAL

GIANNA GIZZI

MARIA MAKAR

MEGAN PORTER

LOEVY & LOEVY

311 North Aberdeen St.

Chicago, IL 60607

(312) 243-5900

steve@loevy.com

Counsel for Amicus Curiae

December 30, 2022

QUESTION PRESENTED

Whether public officers were on notice that

putting a person who is handcuffed and in leg

shackle face-down on the ground and applying

sustained force by pressing into their back until that

person suffocated and died is unconstitutional.

(i)

iii

TABLE OF CONTENTS

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

TABLE OF AUTHORITIES .................................. iiv

INTEREST OF AMICUS CURIAE ......................... 1

REASONS FOR GRANTING THE PETITION ...... 1

I. A NATIONAL RULE GOVERNING THE

USE OF FORCE AGAINST ARRESTEES

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

II. THE EIGHTH CIRCUIT’S DECISION

CREATES A SIGNIFICANT CONFLICT

AMONG THE COURTS OF APPEALS ........... 6

A. NICHOLAS GILBERT WAS RESTRAINED

AND POSED NO THREAT BUT WAS

NONETHELESS KILLED BY A BEVY OF

OFFICERS PRESSING DOWN ON HIS

NECK AND BACK FOR MORE THAN TEN

MINUTES UNTIL HE SUFFOCATED............ 7

B. THE EIGHTH CIRCUIT’S DECISION

AGAIN DIRECTLY CONFLICTS WITH

MANY DECISIONS OF OTHER CIRCUIT ..... 7

III. THE DECISION BELOW CONTRADICTS

THIS COURT'S PRIOR RULING IN THIS

CASE AND IS AN OUTLIER ......................... 14

IV. THE

NATIONAL

RULE

IS

THE

CONSISTENT WITH THIS COURT’S

DEADLY

FORCE

CASES

AND

WIDESPREAD POLICE PRACTICES........... 18

CONCLUSION ....................................................... 24

iv

TABLE OF AUTHORITIES

Page(s)

CASES

Abdullahi v. City of Madison,

423 F.3d 763 (7th Cir. 2005) ....................... 10

Anthony v. Seltzer,

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

Barnyard v. Theobald,

721 F.3d 1069 (9th Cir. 2013) ..................... 12

Brosseau v. Haugen,

543 U.S. 194 (2004) ............................... 19, 20

Bush v. Strain,

513 F.3d 492 (5th Cir. 2008) ......................... 9

California v. Hodari D.,

499 U.S. 621 (1991) ..................................... 20

Champion v. Outlook Nashville, Inc.,

380 F.3d 893 (6th Cir. 2004) ............. 9, 10, 16

City of Los Angeles v. Lyons,

461 U.S. 95 (1983) ....................................... 19

Cottrell v. Caldwell,

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

County of Los Angeles v. Mendez,

137 S. Ct. 1539 (2017). .............................. 4, 5

Craighead v. Lee,

399 F.3d 954 (8th Cir. 2005) ....................... 13

v

TABLE OF AUTHORITIES--Continued

Page(s)

City & County of San Francisco v. Sheehan,

575 U.S. 600 (2015) ..................................... 19

Drummond v. City of Anaheim,

343 F.3d 1052 (9th Cir. 2003) ............... 11, 17

Estate of Aguirre v City of San Antonio,

995 F.3d 395 (5th Cir. 2021) ......................... 9

Estate of Booker v. Gomez,

745 F.3d 405 (10th Cir. 2014) ..................... 12

Estate of Smart by Smart v. City of Wichita,

951 F.3d 1161 (10th Cir. 2020) ................... 12

Garrett v. Athens-Clarke County,

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

Giles v. Kearney,

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

Graham v. Connor,

490 U.S. 386 (1989) .............................. passim

Hopper v. Plummer,

887 F.3d 744 (6th Cir. 2018) ............. 5, 10, 16

Ingram v. Shipman-Meyer,

241 F. Supp. 3d 124 (D. D.C. 2017) ........... 13

Johnson v. District of Columbia,

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

vi

TABLE OF AUTHORITIES--Continued

Page(s)

Jones v. City of Martinsburg,

961 F. 3d 661 (4th Cir. 2020) ........................ 9

Jones v. Treubig,

963 F.3d 214 (2d Cir. 2020) ......................... 13

Kingsley v. Hendrickson,

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

Kisela v. Hughes,

138 S. Ct. 1148 (2018) ................................. 19

Khan v. Normand, 683 F.3d 192

(5th Cir. 2012) ............................................. 10

Krechman v. County of Riverside,

723 F.3d 1104 (9th Cir. 2013) ............... 12, 16

Lawhon v. Mayes,

No. 20-1906, 2021 WL 5294931

(4th Cir. Nov. 15, 2021) ............................ 8, 9

Lennox v. Miller,

968 F.3d 150 (2d Cir. 2020) ......................... 12

Martin v. City of Broadview Heights,

712 F.3d 951 (6th Cir. 2013) ....................... 10

McCoy v. Meyers,

887 F.3d 1034 (10th Cir. 2018) ................... 12

McCue v. City of Bangor,

838 F.3d 55 (1st Cir. 2016)........................ 8, 9

vii

TABLE OF AUTHORITIES--Continued

Page(s)

Miller v. Gonzalez,

761 F.3d 822 (7th Cir. 2014) ....................... 11

Mullenix v. Luna,

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

Plumhoff v. Rickard,

572 U.S. 765 (2014) ..................................... 19

Pratt v. Harris County,

822 F.3d 174 (5th Cir. 2016) ....................... 10

Richman v. Sheahan,

512 F.3d 876 (7th Cir. 2008) ....................... 11

Rivas v. City of Passaic,

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

Simpson v. Hines,

903 F.2d 400 (5th Cir. 1990) ................. 10, 17

Stanford v. State of Tex.,

379 U.S. 476 (1965) ..................................... 20

Scott v. Harris,

550 U.S. 372 (2007) ............................... 18, 19

Skrtich v. Thornton,

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

Smith v. City of Hemet,

394 F.3d 689 (9th Cir. 2005). ...................... 18

viii

TABLE OF AUTHORITIES--Continued

Page(s)

Strand v. Minchuk,

910 F.3d 909 (7th Cir. 2018) ....................... 11

Taylor v. City of Milford,

10 F.4th 800 (7th Cir. 2021)........................ 11

Tennessee v. Garner,

471 U.S. 1 (1985) ......................................... 18

Timpa v. Dillard,

20 F.4th 1020 (5th Cir. 2021)........................ 9

Tolan v. Cotton,

572 U.S. 650 (2014) ..................................... 19

Torres v. Madrid,

141 S. Ct. 989 (2021) ................................... 20

Weigel v. Broad,

544 F.3d 1143 (10th Cir. 2008) ......... 9, 12, 17

Young v. City of Augusta,

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

STATUTES

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

(West 2016) .................................................. 22

Cal. Gov’t Code § 7286.5 ................................... 21

Colo. Rev. Stat. Ann. § 18-1-707

(West 2020) .................................................. 21

Conn. Gen. Stat. Ann. § 53a-22

(West 2020) .................................................. 22

ix

TABLE OF AUTHORITIES--Continued

Page(s)

D.C. Code Ann. §5-125.03

(West 2001) ............................................ 21, 22

Del. Code Ann. tit. 11, § 607A

(West 2020) .................................................. 22

Iowa Code Ann. § 804.8

(West 2020) .................................................. 22

N.H. Rev. Stat. Ann. § 627:5

(2020) ........................................................... 22

Minn. Stat. Ann. § 609.06

(West 2022) .................................................. 22

Nev. Rev. Stat. Ann. § AB 3, § 4

(West 2020) .................................................. 21

N.Y. Penal Law § 121.13-a

(McKinney 2020) ......................................... 22

Or. Rev. Stat. Ann. § Ch. 3, § 2

(West 2020) .................................................. 22

Utah Code Ann. § 53-13-115

(West 2020) .................................................. 22

x

TABLE OF AUTHORITIES--Continued

Page(s)

OTHER AUTHORITIES

4 W. Blackstone, Commentaries....................... 20

Chicago Police Department, General Order G0302, Use of Force, available at

https://tinyurl.com/ydvwcuaf ...................... 23

City of Phoenix, City Counsel Policy Session

(June 9, 2020), available at

https://tinyurl.com/2k6ercxd ....................... 23

Davis, Whyde, & Langdon, Contacts Between

Police and the Public, 2015, U.S. Department

of Justice Office of Justice Programs Bureau

of Justice Statistics (Oct. 2018), ................... 6

Federal Bureau of Investigation, Crime in the

U.S. 2015, available at

https://ucr.fbi.gov/crime-in-theu.s/2015/crime-in-the-u.s.-2015/tables/table29................................................................... 6

Houston Police Department, General Order No.

600-17, Response to Resistance, available at

https://www.houstontx.gov/police/general_or

ders/600/600-17_ResponseToResistance.pdf

...................................................................... 23

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

Largest Police Departments Have Banned or

Limited Neck Restraints Since June, Wash.

Post (Sept. 6, 2020).pdf ............................... 23

xi

TABLE OF AUTHORITIES--Continued

Page(s)

Las Vegas Metropolitan Police Department,

Procedural Order 046-20, Use of Force

Policy, available at

https://tinyurl.com/yxdcn9hh ...................... 23

Los Angeles Police Department, Moratorium on

Training and Use of the Carotid Restraint

Control Hold (June 7, 2020), available at

https://tinyurl.com/ydvwcuaf ...................... 23

New York Police Department, Force Guidelines,

Procedure No. 221-01, available at

https://tinyurl.com/48szedjh ....................... 22

Philadelphia Police Department Directive 10.2,

Use of Moderate/Limited Force, available at

https://www.phillypolice.com/assets/directive

s/D10.2-UseOfModerateLimitedForce.pdf.. 23

San Antonio Police Department, General

Manual, Procedure 501 Response to

Resistance, available at

https://www.sanantonio.gov/Portals/0/Files/S

APD/OpenData/501-UseOfForce.pdfx ........ 23

Zhen Zeng, Jail Inmates in 2016, U.S. Dep't

of Justice, Office of Justice Programs,

Bureau of Justice Statistics (Feb. 2018)....... 6

INTEREST OF AMICUS CURIAE 1

The National Association of Criminal Defense

Lawyers (NACDL) is a nonprofit voluntary

professional bar association that works on behalf of

criminal-defense attorneys to ensure justice and due

process for those accused of crimes or misconduct.

NACDL was founded in 1958. It has a nationwide

membership of many thousands of direct members,

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

include private criminal-defense lawyers, public

defenders, military-defense counsel, law professors,

and judges. NACDL is the only nationwide

professional bar association for public defense and

private criminal-defense lawyers. NACDL is

dedicated to advancing the proper, efficient, and just

administration of criminal justice. NACDL files

numerous amicus briefs each year in this Court and

other federal and state courts, assisting in cases like

this one, which concern constitutional standards

affecting arrestees and pretrial detainees, which are

of broad importance to criminal defendants,

criminal-defense lawyers, and the criminal-justice

system as a whole.

REASONS FOR GRANTING THE PETITION

This case asks whether officers were on notice

they may violate the Constitution’s prohibition on

excessive force when they kill a handcuffed and leg1 Pursuant to Rule 37.6, amicus certifies no counsel for a

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

one other than amicus and its counsel have made any

monetary contribution to the preparation and submission of

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

(1)

2

shackled arrestee inside a cell by compression

asphyxiation, a form of lethal force. This Court

previously granted certiorari in this case and

remanded to permit the Court of Appeals to either

provide appropriate rationale for its grant of

summary judgment to the officers or reach a

different conclusion. The basis for remand was

concern the lower court erroneously applied a per se

rule to conclude no reasonable jury could find a

constitutional violation as such a “per se rule would

contravene the careful, context-specific analysis

required” by this Court’s precedents. Pet. App. 20a.

On remand, the Eighth Circuit held the

constitutional violation at issue in this case was not

“clearly established” by 2015 entitling the officers to

qualified immunity and judgment as a matter of law.

The remand decision demands this Court’s

intervention more strongly than before. For one, the

decision below again contradicts the national

consensus that the prolonged use of force against

restrained arrestees and pretrial detainees to the

point of death is unconstitutional where, as here, the

restrained person poses no threat to the officers. In

addition, and despite this Court’s clear ruling, the

Eighth Circuit again granted summary judgment for

the officers by applying a per se rule that

contravenes this Court’s precedent. In particular,

the lower court’s per se rule provides that any form

of “resistance” by a restrained arrestee—even if such

“resistance” constitutes the very attempt to live by

trying to take a breath—justifies lethal force, even

today. Thus, Nicholas Gilbert’s death could not have

violated “clearly established” law in 2015.

3

This Court should again intervene and confirm it

was clearly established in 2015 that the objective

reasonableness standard of the Fourth and

Fourteenth Amendments prohibits the use of deadly

force against a restrained arrestee or detainee who

poses no threat to officers or others.

The decision below has profound implications.

After this Court’s decision in Kingsley v.

Hendrickson, 576 U.S. 389 (2015), the objective

reasonableness standard of Graham v. Connor, 490

U.S. 386 (1989), governs all claims of excessive force

brought by arrestees and pretrial detainees. As

such, it is of paramount importance to apply a

uniform standard across the country.

Before the Eighth Circuit’s decision in this case,

the courts of appeals agreed the Fourth and

Fourteenth Amendments categorically prohibit the

asphyxiation of a restrained civilian who poses no

threat to officers or others. The decision below

departs from these universal rules prohibiting lethal

force and instead invokes a categorical authorization

for deadly force when a restrained person is not

perfectly submissive. Compression asphyxia is

deadly force, and officials may not use deadly force

against restrained civilians, even if those civilians

are not fully submissive. Under this Court’s

precedents, no reasonable person would dispute it

was clearly established by 2015 that the officers who

encountered Gilbert handcuffed and shackled in a

cell could not have shot him dead. The same must be

true of applying deadly force by asphyxiation. The

Eighth Circuit’s contrary rule cannot stand.

For a second time, certiorari is warranted.

4

I.

A NATIONAL RULE GOVERNING

THE USE OF FORCE AGAINST

ARRESTEES AND DETAINEES IS

NEEDED

Although the decision below arises in the context

of a use of force against an arrestee in a police

holding cell, its reasoning extends to a wide swath of

interactions in which individuals who are suspected

or accused, but not convicted, of crimes come into

contact with government officials. Pursuant to

Graham, 490 U.S. at 396–97, and Kingsley, 576 U.S.

at 397, the same objective reasonableness standard

governs all claims of excessive force brought against

law enforcement and jail staff prior to potential

conviction.

Graham sets forth the Fourth Amendment

standard for adjudging claims arising “in the course

of an arrest, investigatory stop, or other ‘seizure’ of

a free citizen[.]” 490 U.S. at 395. This “settled and

exclusive framework” for assessing Fourth

Amendment excessive-force claims, County of Los

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

governs pretrial detainees’ claims of excessive force

arising under the due process clause of the

Fourteenth Amendment, Kingsley, 576 U.S. at 396–

97 (citing Graham, 490 U.S. at 396). When

government

officials

“create[]

asphyxiating

conditions by putting substantial or significant

pressure, such as body weight, on the back of an

incapacitated and bound suspect,” whether in an

arrest or a jail, “the conduct at issue, the risk of

death to the detainee, and the minimal threat posed

by a bound and incapacitated detainee to officer

5

safety is the same[.]” Hopper v. Plummer, 887 F.3d

744, 754-55 (6th Cir. 2018) (citations omitted).

Accordingly, all civilians asserting an excessive

force claim for official conduct prior to potential

conviction must “show only that the force purposely

or knowingly used against him was objectively

unreasonable.” Kingsley, 576 U.S. at 396–97;

Mendez, 137 S. Ct. at 1546. To assess objective

reasonableness, courts consider the relationship

between the need for force and the amount of force

used, the extent of the civilian’s injury, efforts by

officials to limit the force, whether the civilian is

fleeing or actively resisting arrest (and by what

means), and the severity of the threat posed to

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

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

This constitutional standard governs uses of

force in a broad range of law enforcement and

detention settings, including uses of force against

civilians during police investigative stops, arrests,

and other seizures on the street, in public places, or

in homes; against arrestees in police cars, processing

and intake areas, and lockups; against persons

released on bail pending trial; and against pretrial

or civil contempt detainees held in jails and prisons.

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

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

who interact with our criminal justice system fall

into these categories. The use-of-force standards at

issue in this case thus affect a staggering number of

Americans each year. For instance, in 2015 the

average daily population of prisoners held pre-trial

6

in local jails exceeded 400,000. 2 In the same year,

law enforcement officers made nearly 11 million

arrests, 3 and initiated contacts with 27 million U.S.

residents age 16 or older. 4

Given the wide breadth of the constitutional rule

at issue, it is essential this Court intervene to

confirm the uniform national rule prohibiting the

use of deadly force against fully restrained arrestees

and detainees who pose no threat to officers or

others constitutes clearly established law.

II.

THE

EIGHTH

CIRCUIT’S

DECISION

CREATES

A

SIGNIFICANT CONFLICT AMONG

THE COURTS OF APPEALS

This Court should grant the petition because the

Eighth Circuit has again conflicts with the circuits’

governing rule that it is clearly established officers

may not use sustained force to asphyxiate restrained

civilians who pose no threat to officers or others.

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

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

2018) (average daily prison population in local jails in 2015 was

719,500), https://www.bjs.gov/content/pub/pdf/ji16.pdf; id. at 4

(62.5% of jailed prisoners were pretrial).

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

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

https://ucr.fbi.gov/crime-in-the-u.s/2015/crime-in-the-u.s.2015/tables/table-29 (last visited Dec. 28, 2020).

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

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

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

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

7

A. Nicholas Gilbert Was Restrained and

Posed No Threat But Was Nonetheless

Killed By A Bevy Of Officers Pressing

Down on His Neck and Back For More

than Ten Minutes Until He Suffocated

The facts in this case, construed in the light

favorable to Petitioner, focus on the officers

continued use of force against Gilbert after he had

been placed prone on the floor, in handcuffs, and in

leg restraints. At that point, Gilbert’s “actions were

innocent, he was not ignoring commands or being

violent, and his actions were based on ‘air hunger”’;

i.e. “a struggle to breathe while being restrained.”

Pet. App. 60a. Gilbert’s body was pressed upon by

six jailers for more than 10 minutes, though he

posed no threat and was pleading for the officers to

stop applying force because they were hurting and

suffocating him. The continued pressure against

Gilbert did not abate until he stopped breathing,

causing death by asphyxiation. Id. at 62a. At most,

the whole of Gilbert’s “resistance” was that “he

raised his chest up off the floor,” in part of his

struggle to breathe as an expression of “air hunger.”

id. at 6a, 60a.

B. The Eighth Circuit’s Decision Again

Directly Conflicts With Many Decisions

Of Other Circuits

Prior to the decision below, it was the uniform—

and clearly established—national rule that

asphyxiating restrained or subdued civilians is

objectively unreasonable. The Eighth Circuit’s

contrary decision creates a significant conflict

among the circuits.

8

1. The First Circuit holds it was “clearly

established in September 2012 that exerting

significant, continued force on a person’s back while

that [person] is in a face-down prone position after

being subdued and/or incapacitated constitutes

excessive force,” drawing on authorities from four

other circuits. McCue v. City of Bangor, 838 F.3d 55,

64-65 (1st Cir. 2016) (internal quotations and

citations omitted).

In Rivas v. City of Passaic, 365 F.3d 181, 200 (3d

Cir. 2004), the Third Circuit held an officer’s use of

compression asphyxiation would be unconstitutional

if the victim “did not present a threat to anyone’s

safety as he lay in a prone position on the enclosed

porch, hands and ankles secured behind his back.”

As here, the continued use of force after restraint—

officers pressing on the decedent’s back until he

became “still and unconscious”—could be deemed

constitutionally

unreasonable.

Id.

Such

a

constitutional violation is clearly established. See

Giles v. Kearney, 571 F.3d 318, 326 (3d Cir. 2009)

(the rule prohibiting gratuitous force against a

restrained inmate was clearly established in 2001);

Anthony v. Seltzer, 696 F. App’x 79, 82 (3d Cir. 2017)

(citing Rivas and cases from the Fourth, Fifth, Sixth,

Seventh, Eighth, Ninth, and Eleventh Circuits to

find 2013 conduct violated clearly established law).

The Fourth Circuit holds that it is “clearly

established that officers could not continue to apply

force to an already-restrained person who posed no

threat.” Lawhon v. Mayes, No. 20-1906, 2021 WL

5294931, at *2 (4th Cir. Nov. 15, 2021). In Lawhon,

officers applied force on the decedent’s back while he

was handcuffed and prone, causing death by

9

asphyxia. Id. at *1. Given its own precedent, and

confirmed by the national consensus, immunity was

unavailable. See id. *2 (quoting Est. of Jones ex rel.

Jones v. City of Martinsburg, 961 F.3d 661, 668 (4th

Cir. 2020)); id. at *1 n.1 (citing McCue v. City of

Bangor, 838 F.3d 55, 64 (1st Cir. 2016), Weigel v.

Broad, 544 F.3d 1143, 1155 (10th Cir. 2008), and

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

903 (6th Cir. 2004)).

Several recent cases from the Fifth Circuit

address excessive force claims involving a detainee’s

asphyxiation. First, pointing to precedent from 2008

concerning conduct in 2016, Timpa v. Dillard held it

was “clearly established that an officer engages in

an objectively unreasonable application of force by

continuing to kneel on the back of an individual who

has been subdued.” 20 F.4th 1020, 1034 (5th Cir.

2021) (citing, among other cases, Bush v. Strain, 513

F.3d 492, 502 (5th Cir. 2008)). Likewise, Estate of

Aguirre v. City of San Antonio concerned a

handcuffed person placed prone on the ground with

their legs restrained—called a “maximal restraint

position”—for more than 5 minutes until he

suffocated. 995 F.3d 395, 402-03 (5th Cir. 2021).

While there was some discord among the panel

about whether the initial decision to place the

arrestee in the prone position was lawful, there was

no dispute that it was clearly established by 2013

that the continued restraint and compression of a

civilian who posed no threat to the officers may

violate the constitution. Id. at 415-20 (Dennis, J.);

id. at 423-24 (Jolly, J., concurring in the judgment);

id. at 424-25 (Higginson, J., concurring in the

judgment) (“[O]ur caselaw had converged by spring

10

2013 around the clearly established proposition that

while such an initial restraint is not per se

unconstitutional, the continued application of

asphyxiating force may be unreasonable where

there is no ongoing threat posed by the suspect.”

(citing Pratt v. Harris County, 822 F.3d 174, 184 (5th

Cir. 2016), and Khan v. Normand, 683 F.3d 192,

195–96 (5th Cir. 2012))). See also Fairchild v.

Coryell Cty., 40 F.4th 359, 368 (5th Cir. 2022)

(holding it clearly established that guards who used

bodyweight to subdue a detainee in the prone

position for approximately two minutes causing her

to asphyxiate and die may violate the constitution).

The Sixth Circuit was among the first of the

courts of appeals to deem found it clearly established

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.” Champion, 380 F.3d at 903 (citing

Simpson v. Hines, 903 F.2d 400, 403 (5th Cir. 1990)).

The Sixth Circuit has repeatedly reaffirmed this

rule. See, e.g., Hopper, 887 F.3d at 754 (applying the

“prohibition against placing weight on [the

decedent’s] body after he was handcuffed” to a claim

by a jail detainee); Martin v. City of Broadview

Heights, 712 F.3d 951, 961 (6th Cir. 2013)

(reaffirming the “prohibition against placing weight

on [the victim’s] body after he was handcuffed”).

The Seventh Circuit adheres to the same rule.

Its leading case, Abdullahi v. City of Madison, 423

F.3d 763, 770-71 (7th Cir. 2005), recognized that

“placing a person in a prone position while

handcuffed on the floor does not, in and of itself,

11

violate the Fourth Amendment,” but that additional

“specific unreasonable conduct” by an officer who

“knelt on the decedent’s back with chest-crushing

force,” causing his death, does violate the Fourth

Amendment. The court stressed, “No one contends

that deadly force was justified once [the civilian] was

lying prone on the ground with his arms behind

him[.]” Id. at 769. This rule has been emphasized

repeatedly. E.g., Taylor v. City of Milford, 10 F.4th

800 (7th Cir. 2021) (viewing all of the evidence in the

light most favorable to the plaintiff, the officer

continued to apply significant restraints to the

decedent even after he was restrained on the bed and

had vomited and lost consciousness); Richman v.

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

that “a reasonably trained police officer would know

that compressing the lungs of a morbidly obese

person can kill the person,” and that a reasonable

jury could find the officers used excessive force in “a

situation in which officers suffocate an obviously

vulnerable person”); see also Strand v. Minchuk, 910

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

decades” the Seventh Circuit has “emphasized that

a subdued suspect has the right not to be seized by

deadly or significant force”); Miller v. Gonzalez, 761

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

against significant force against a subdued suspect

applies notwithstanding a suspect’s previous

behavior[.]”).

In Drummond v. City of Anaheim, “officers

allegedly crushed [a civilian] against the ground by

pressing their weight on his neck and torso, and

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

and despite the fact that his hands were cuffed

12

behind his back and he was offering no resistance.”

343 F.3d 1052, 1061 (9th Cir. 2003). The Ninth

Circuit held “[a]ny reasonable officer should have

known that such conduct constituted the use of

excessive force.” Id.; see also Krechman v. County of

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

(reversing judgment for four officers who restrained

an unarmed delusional man in prone position and

put weight on his back while “he was repeatedly

kicking”); Barnyard v. Theobald, 721 F.3d 1069,

1073 (9th Cir. 2013) (similar regarding choke hold).

Finally, the Tenth Circuit also follows the

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

was clearly established that applying pressure to [a

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

his

legs

restrained,

was

constitutionally

unreasonable due to the significant risk of positional

asphyxiation associated with such actions.” 544 F.3d

1143, 1155 (10th Cir. 2008); see also Estate of Smart

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

2020) (finding it “clearly established that officers

may not continue to use force against a suspect who

is effectively subdued.”); McCoy v. Meyers, 887 F.3d

1034, 1052 (10th Cir. 2018) (similar); Estate of

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

2014).

2. The remaining circuits have not squarely

addressed an excessive force claim arising from

asphyxiation but uniformly hold the continued use

of force against a restrained civilian posing no threat

to officials is unconstitutional. In Lennox v. Miller,

the Second Circuit addressed force against a

handcuffed arrestee on the ground who alleged the

officer kneeled with full body weight on their back

13

and denied qualified immunity because such force

was not justified in that circumstance. 968 F.3d 150,

157 (2d Cir. 2020); accord Jones v. Treubig, 963 F.3d

214, 225 (2d Cir. 2020). In the Eleventh Circuit,

while mere restraint or “hog-tying” is permitted,

Garrett v. Athens-Clarke County, 378 F.3d 1274,

1281 (11th Cir. 2004); Cottrell v. Caldwell, 85 F.3d

1480, 1492 (11th Cir. 1996), the use of additional

force against subdued suspects is objectively

unreasonable, Skrtich v. Thornton, 280 F.3d 1295,

1303 (11th Cir. 2002); Young v. City of Augusta, 59

F.3d 1160, 1163-65 (11th Cir. 1995). Finally, the

D.C. Circuit has held that an officer’s act of violence

(which did not involve asphyxiation) against a

restrained and non-threatening arrestee violates the

Fourth Amendment. Johnson v. District of Columbia

528 F.3d 969, 976-78 (D.C. Cir. 2008). 5

Contrary to the remand decision, all Courts of

Appeals, including the Eighth Circuit before this

case, e.g., Craighead v. Lee, 399 F.3d 954, 962 (8th

Cir. 2005), have embraced the conclusion that it is

clearly established the continued use of force against

restrained civilians posing no threat to officers is

unconstitutionally unreasonable.

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

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

not choke to death an unarmed subject who had already been

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

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

14

III.

THE

DECISION

BELOW

CONTRADICTS THIS COURT’S

PRIOR RULING IN THIS CASE AND

IS AN OUTLIER

Certiorari is warranted here because the Eighth

Circuit’s decision applied the same rule this Court

already held was erroneous, and because the

decision is an extreme outlier.

1. In its prior decision, this Court held the Eighth

Circuit’s first decision “could be read to treat

Gilbert’s ‘ongoing resistance’ as controlling as a

matter of law.” Pet. App. 19a-20a. As a result, it was

“unclear” whether the court of appeals “thought the

use of a prone restraint—no matter the kind,

intensity, duration, or surrounding circumstances—

is per se constitutional so long as an individual

appears to resist officers’ efforts to subdue him.” Id.

at 18a-19a. However, this Court held “[s]uch a per se

rule would contravene the careful, context-specific

analysis required by this Court’s excessive force

precedent.” Id. at 19a. The Court of Appeals was

given the opportunity to apply the correct, contextspecific rule on remand in place of an erroneous per

se rationale.

On remand, and despite its footnote to the

contrary, id. at 10a n.3, the Eighth Circuit repeated

its error and again invoked a per se rule that any

form of resistance—even if such resistance is

someone’s effort to avoid suffocation—is controlling

as a matter of law. The panel reasoned that the

“right to be free from prone restraint when resisting

was not clearly established in 2015 when the

incident with Gilbert occurred.” Id. at 12a (emphasis

15

added). Contrary to this Court’s decision, no

qualifiers or analysis about the “kind, intensity,

duration, or surrounding circumstances” of the

prone restraint was part of the calculus. Id. Nor did

the Court address the extent of “resistance” offered

by Gilbert, which was innocent, non-violent, and

constituted his efforts to simply take a breath. Id.

Instead, the Eighth Circuit’s logic rendered

irrelevant the circumstances related to the officers’

force, however extreme, as well as the circumstances

of Gilbert’s “resistance,” however slight. See id. at

14a (“Gilbert’s right to be free from prone restraint

while engaged in ongoing resistance, even where

officers applied force to various parts of his body,

including his back, was not clearly established in

2015 when the incident with Gilbert occurred.”).

The Eighth Circuit thus applied a per se rule that

any resistance—even if that resistance includes the

mere fact of trying to breathe—justifies deadly force.

To the Eighth Circuit, even though he was

restrained, Gilbert was entitled to a death sentence

via compressional asphyxiation merely because he

failed to lie flat in complete submission and, instead,

struggled to raise his chest to breathe and called out

in pain and for help. Such a rule directly contradicts

this Court’s prior decision, warranting certiorari.

2. The decision below is an extreme outlier

among the court of appeals. The Eighth Circuit left

no room in its decision to imply or suggest it was

applying the context-specific analysis required by

this Court’s prior decision in this case (and that is

demanded under bedrock principles in this Court’s

other decisions, discussed below).

16

The Eighth Circuit’s discussion of sister-circuit

cases applying the national rule confirms the

opinion is at odds with established law. The remand

decision acknowledges cases, cited above, from the

Fifth, Sixth, Ninth, and Tenth Circuits. Pet. App.

12a-14a. But, it refused to apply them. Instead, the

only stated reason for departing from the

established national rule was the notion Gilbert had

inadequately “ceased resisting” despite the fact he

was in handcuffs, leg restraints, and held by 6

officers who pressed on his back and chest as he laid

prone for more than 10 minutes. See id. (“Each of

these cases is distinct because they involve instances

where the subject had ceased resisting while officers

were still applying force to a subject in prone

position.”).

That was not the rationale of these decisions, or

the law of these other circuits. None other circuit

applies the per se rule invoked below. Applying its

long-held rule from Champion—where the arrestee

was kicking as the leg restraints were applied, 380

F.3d at 387, the Sixth Circuit has emphasized that

“the prohibition against placing weight on [a

detainee’s] body after he was handcuffed was clearly

established in 2012.” Hopper, 887 F.3d at 754. As a

result, the Court denied qualified immunity where

there was no dispute the detainee was suffering a

medical emergency and even though “he may have

kicked and thrashed,” because the officers “did not

consider him a threat to anyone after he was

handcuffed.” Id. at 755.

The Ninth and Fifth Circuits have not applied

the rationale ascribed to them by the Eighth Circuit,

either. In Krechman, the Ninth Circuit held

17

compression asphyxiation unlawful even though the

detainee “was repeatedly kicking.” 723 F.3d at 1111.

Analogous to this case, the Ninth Circuit in

Drummond emphasized any reasonable officer

should have known that “crush[ing] Drummond

against the ground … and continuing to do so

despite his repeated cries for air … constituted the

use of excessive force.” 343 F.3d at 1061–62. The

Fifth Circuit relied on a similar analysis in Simpson;

the arrestee begged for help and screamed while

prone to no avail. 903 F.2d at 402–03.

Finally, in Weigel the Tenth Circuit also did not

apply a per se rule like the one invoked by the Eighth

Circuit here. Instead, the court held “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 death.”

544 F.3d at1149. In so holding, Weigel recognized

the suspect’s bizarre behavior after being restrained

and “vigorous struggle made him a strong candidate

for positional asphyxiation.” Id. Despite this

“vigorous struggle,” the constitutional violation was

evident because continued pressure on a prone and

restrained suspect was unnecessary as he posed no

threat to the officers or others. Id.

*

*

*

The remand decision contradicts this Court’s

ruling in this very case. The remand decision also

creates a conflict with many decisions of other

Courts of Appeals, whose holdings it refused to

follow and plainly misconstrued. This Court’s

intervention is necessary to correct these conflicts.

18

IV.

THE NATIONAL RULE IS THE

CONSISTENT WITH THIS COURT’S

DEADLY FORCE CASES AND

WIDESPREAD

POLICE

PRACTICES

Reestablishing a national rule prohibiting

officials from using deadly force, including depriving

a person of oxygen, against restrained civilians who

pose no threat is also necessary to ensure adherence

to this Court’s cases governing the use of deadly

force and to existing law and policy governing police

practices in the United States.

1. Tennessee v. Garner prohibits the use of deadly

force “unless it is necessary to prevent escape and

the officer has probable cause to believe that the

suspect poses a significant threat of death or serious

physical injury to the officer or others.” 471 U.S. 1, 3

(1985). Although this Court has not expressly

defined what quantum of force constitutes deadly

force, compression asphyxiation would satisfy any

conceivable definition. Asphyxiation presents the

same “near certainty of death” as the shooting at

issue in Garner. Scott v. Harris, 550 U.S. 372, 384

(2007). It is significantly more likely to cause the

death of a suspect than a police car’s bumping of a

car, which this Court has determined “pose[s] a high

likelihood of serious injury or death.” Id. There can

be no reasonable dispute that compression

asphyxiation creates a substantial risk of death or

serious bodily injury, which is the definition of

deadly force employed by all courts of appeals. Smith

v. City of Hemet, 394 F.3d 689, 705-06 (9th Cir. 2005)

(en banc). Officers who place their full body weight

on a subdued citizen in a prone position, as he gasps

19

for air and cries, “I can’t breathe,” are at substantial

risk of causing serious bodily injury or death.

As Justice Scalia emphasized in Mullenix v.

Luna, deadly force is the “directing of force sufficient

to kill at the person of the desired arrestee.” 577 U.S.

7, 19 (2015) (Scalia, J., concurring). Officers who

suffocate a civilian exert a type of force “applied with

the object of harming the body of the [citizen]” that

is not exceeded by any other type of force. Id.

Consider if the officers who asphyxiated Nicholas

Gilbert in this case had instead shot him in his cell,

while shackled and handcuffed. No one would

dispute that such a use of deadly force would be

categorically unreasonable. The result should not be

different when officers deploy deadly force without a

gun or other weapon. After all, “[i]t is undisputed

that chokeholds [and similar techniques] pose a high

and unpredictable risk of serious injury or death.”

City of L.A. v. Lyons, 461 U.S. 95, 116 (1983)

(Marshall, J., dissenting).

Importantly, this case is not only about the

application of deadly force, but also the right to be

free from continued, unnecessary force once an

officer has restrained an individual. Since Garner,

this Court’s cases discussing the reasonableness of

deadly force have focused on whether the suspect

posed an immediate threat of serious bodily injury

to the officers or others, but they also have all

concerned suspects who were not restrained. See

Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018); City

& County of San Francisco v. Sheehan, 135 S. Ct.

1765, 1774-75 (2015); Plumhoff v. Rickard, 572 U.S.

765, 775-77 (2014); Tolan v. Cotton, 572 U.S. 650,

657-60 (2014); Scott, 550 U.S. at 383-84; Brosseau v.

20

Haugen, 543 U.S. 194, 196-201 (2004). Certiorari is

warranted because the Eighth Circuit’s decision that

compression asphyxiation can be used to kill a

handcuffed and shackled civilian inside of a jail cell

contradicts this Court’s cases defining when officials

may use deadly force—all of which require a threat

to the officers or others.

2. Relatedly, this Court should grant certiorari

because the Eighth Circuit’s decision is inconsistent

with foundational Fourth Amendment principles.

This Court has time and again explained that the

Fourth Amendment was adopted against the

backdrop of English colonial oppression to set

limitations on executive authority, Stanford v. State

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

understood that the Fourth Amendment’s protection

against ‘unreasonable . . . seizures’ includes seizure

of the person[.]” California v. Hodari D., 499 U.S.

621, 624 (1991). In turn, the Fourth Amendment’s

prohibition on the use of excessive force has been

enumerated with eye toward common-law rules and

American practices. Garner, 471 U.S. at 12-19; see

also Torres v. Madrid, 141 S. Ct. 989, 995-97 (2021).

At common law, deadly force could not be used

against a restrained—and certainly not a jailed—

civilian. For example, “where the imprisonment

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

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

entitled to demand nothing less than the highest

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

accused, in order to insure that justice shall be done

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

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

between the commitment and trial, a prisoner ought

21

to be used with the utmost humanity.” Id. *300. In

Gilbert’s case, the officers applied deadly force while

Gilbert was handcuffed and shackled inside of a

single-occupancy jail cell. Once restrained, he posed

no threat of death or bodily injury to officers or

others, including himself. Even if the use of force to

handcuff and shackle Gilbert might have been

justified, there is simply no question that commonlaw rules would have prohibited the use of deadly

force against him after he was fully restrained. The

conduct at issue here is the sort of exertion of

executive authority the Fourth Amendment was

intended to prevent.

3. Important to understanding the scope of

Fourth Amendment protections are the laws and

practices adopted in American jurisdictions. Garner,

471 U.S. at 15-20. Governments across the United

States restrict the use of oxygen-depriving restraint

techniques, except where deadly force is permissible,

and others go even further and prohibit such force

altogether. For example, Colorado prohibits law

enforcement officers from using such techniques on

any citizen for any purpose. Colo. Rev. Stat. Ann. §

18-1-707 (West 2020). 6 Other states, like Minnesota,

identify force that restricts the ability to breathe as

deadly and prohibit its use except where deadly force

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

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

(prohibiting the use of trachea holds under any circumstances);

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

22

is necessary. Minn. Stat. Ann. § 609.06 (West 2020). 7

Notably, New York and Delaware have criminalized

the use of such techniques by police officers as

felonies, and Utah makes it a felony to “restrain a

person by the application of a knee applying

pressure to the neck or throat of a person.” 8

4. Many law enforcement agencies have

implemented policies that discourage and prohibit

the use of restraints that may result in asphyxiation.

The eight largest police departments in the country

prohibit or have a moratorium on the use of choke

holds or similar restraints, unless deadly force is

necessary. 9 A survey recently found at least 32 of the

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

(adding the prohibition of choke holds or other restraints that

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

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

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

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

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

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

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

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

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

strangulation where officer commits crime of criminal

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

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

strangulation, with exception that use of chokeholds are

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

53-13-115 (West 2020).

9 See New York Police Department, Force Guidelines,

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

including choke holds, on a restrained individual “unless

necessary to prevent injury, escape or to overcome active

7

23

nation’s largest police departments have banned or

strengthened restrictions on restraints that pose a

substantial risk of asphyxiation. 10 And the

Department of Justice for decades has stressed that

physical resistance or assault”), https://tinyurl.com/48szedjh;

Los Angeles Police Department, Moratorium on Training and

Use of the Carotid Restraint Control Hold (June 7, 2020),

https://tinyurl.com/ydvwcuaf; Chicago Police Department,

General Order G03-02, Use of Force (Feb. 28, 2020) (defining

deadly force, in part, as “other maneuvers for applying direct

pressure on a windpipe or airway” and prohibiting use of

deadly force “against a person who is a threat only to himself,

herself, or property”), https://tinyurl.com/ydvwcuaf; Houston

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

Resistance

(June

19,

2020),

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

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

“suspended the use of carotid control technique effective

immediately”), https://tinyurl.com/2k6ercxd; Las Vegas

Metropolitan Police Department, Procedural Order 046-20,

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

https://tinyurl.com/yxdcn9hh; Philadelphia Police Department

Directive 10.2, Use of Moderate/Limited Force (updated July

11, 2022) (prohibiting neck restraints and transporting

individuals in a face down position to prevent positional

asphyxia),

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

San

Antonio

Police

Department, General Manual, Procedure 501 Response to

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

neck

restraint),

https://www.sanantonio.gov/Portals/0/Files/SAPD/OpenData/5

01-UseOfForce.pdf.

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

Police Departments Have Banned or Limited Neck Restraints

Since June, WASH. POST, Sept. 6, 2020, at 2,

https://www.washingtonpost.com/graphics/2020/national/polic

e-use-of-force-chokehold-carotid-ban/#survey-results.

24

“the use of maximal, prone restraint techniques

should be avoided.” 11

This Court should grant certiorari because the

Eighth Circuit’s decision is inconsistent with the

widespread laws and rules governing law

enforcement that prohibit asphyxiation of

restrained civilians.

CONCLUSION

The Petition should be granted, and this Court

should confirm the national rule prohibiting officials

from using deadly force against restrained arrestees

and detainees who pose no threat.

Respectfully submitted,

JEFFREY T. GREEN

Co-Chair, Amicus Curiae

Committee

NATIONAL ASSOCIATION

OF CRIMINAL DEFENSE

LAWYERS

1660 L. Street, N.W. #12

Washington, DC 20005

December 30, 2022

JON LOEVY

STEVE ART

Counsel of Record

DAVID B. OWENS

STEVE WEIL

LAUREN CARBAJAL

GIANNA GIZZI

MARIA MAKAR

MEGAN PORTER

LOEVY & LOEVY

311 North Aberdeen St.

Chicago, IL 60607

(312) 243-5900

steve@loevy.com

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

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