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

Supreme Court briefMar 30, 2023

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No. 22-510

In the Supreme Court of the United States

JODY LOMBARDO, ET AL.,

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

REPLY IN SUPPORT 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

March 30, 2023

-iTABLE OF CONTENTS

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

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

Argument........................................................................... 2

Respondents cannot dispel the split. ................. 2

II. Respondents do not deny that the

question recurs frequently, a uniform rule

is necessary, and adherence to this

Court’s mandates is essential. ............................ 5

III. Respondents’ vehicle arguments

contradict both this Court’s opinion and

Justice Alito’s dissent. ......................................... 6

IV. Like the Eighth Circuit, respondents

ignore this Court’s instructions. ......................... 8

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

-iiTABLE OF AUTHORITIES

Cases

Abdullahi v. City of Madison,

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

Champion v. Outlook Nashville, Inc.,

380 F.3d 893 (6th Cir. 2004) ........................................... 2

Drummond v. City of Anaheim,

343 F.3d 1052 (9th Cir. 2003) ......................................... 6

Estate of Armstrong v. Village of Pinehurst,

810 F.3d 892 (4th Cir. 2016) ........................................... 4

Fairchild v. Coryell County,

40 F.4th 359 (5th Cir. 2022) ............................................ 3

Hanson as Trustee for Layton v. Best,

915 F.3d 543 (8th Cir. 2019) ......................................... 10

Helm v. Rainbow City,

989 F.3d 1265 (11th Cir. 2021) ....................................... 9

Henderson v. Munn,

439 F.3d 497 (8th Cir. 2006) ......................................... 10

Hopper v. Plummer,

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

Hyde v. City of Willcox,

23 F.4th 863 (9th Cir. 2022) ............................................ 3

Kulpa v. Cantea,

708 F. App’x 846 (6th Cir. 2017) .................................... 4

Lawhon v. Mayes,

2021 WL 5294931 (4th Cir. 2021) ................................... 5

Lombardo v. City of St. Louis,

141 S. Ct. 2239 (2021) .................................................. 7, 9

-iiiMartin v. City of Broadview Heights,

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

McCue v. City of Bangor,

838 F.3d 55 (1st Cir. 2016) ........................................ 4, 10

Plumhoff v. Rickard,

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

Rivas v. City of Passaic,

365 F.3d 181 (3d Cir. 2004) ......................................... 2, 4

Ryan v. Armstrong,

850 F.3d 419 (8th Cir. 2017) ......................................... 10

Timpa v. Dillard,

20 F.4th 1020 (5th Cir. 2021) ...................................... 2, 3

Weigel v. Broad,

544 F.3d 1143 (10th Cir. 2008) ............................... 2, 4, 9

Other authorities

Rizzo, Vozzella, & Oakford, Video shows Va.

deputies pile on top of Irvo Otieno before

his death, Wash. Post (Mar. 22, 2023)........................... 6

-1INTRODUCTION

For the second time, this case presents the Court with

an opportunity to decide the constitutionality of a police

tactic responsible for more in-custody deaths than any

other. Outside the Eighth Circuit, there is a strong and

growing consensus that it is unconstitutional to put a

handcuffed person face-down on the ground and press into

his back until he suffocates, and that this has been clearly

established for years. Police training materials have long

recognized as much, as have many circuits. By breaking

with this consensus for a second time—while defying this

Court’s mandate—the decision below manages to be even

more worthy of this Court’s review than the last one was.

In opposing certiorari, respondents make no effort to

show that the Eighth Circuit heeded this Court’s mandate.

Their contention, instead, is that the other circuits’ cases

involved people who were entirely still when officers

pushed on their backs, whereas Gilbert was “actively

fighting with the officers.” BIO 9. But that is wrong. It

misstates both the facts of those cases and their rules. It

also misstates the facts of this case. The critical point in

the other circuits’ cases wasn’t whether the decedent had

made any movement after being bound on the ground. The

critical point was exactly what it should have been here—

that he no longer posed a threat that could possibly justify

such extraordinarily dangerous force.

Since the opposition was filed, moreover, the conflict

between the Eighth Circuit and everyone else has grown

only starker. Seven officers were recently indicted for

murder for the exact same conduct as here.

Respondents also try to attack this case as a vehicle.

But their arguments contradict this Court’s opinion, as

well as Justice Alito’s dissent. With no barrier to review,

certiorari is once again warranted.

-2ARGUMENT

Respondents cannot dispel the split.

As the petition details, there is now a circuit split on

whether it is clearly established that no “reasonable

officer would continue to put pressure on [a person’s] back

after [he] was subdued by handcuffs, an ankle restraint,

and a police officer holding [his] legs.” Champion v.

Outlook Nashville, Inc., 380 F.3d 893, 905 (6th Cir. 2004).

Eight circuits answer yes. In those circuits, it has long

been “clearly established that applying pressure to [one’s]

back, once he [is] handcuffed and his legs restrained, [is]

constitutionally unreasonable.” Weigel v. Broad, 544 F.3d

1143, 1155 (10th Cir. 2008). “Only the Eighth Circuit”

disagrees. Timpa v. Dillard, 20 F.4th 1020, 1036 n.7 (5th

Cir. 2021)

Respondents try to deny the split by claiming that this

case is distinguishable from the other circuits’ cases. The

other cases, they say (at 2-3), “each involved force exerted

on a prone subject for sustained periods after the subject

was completely subdued and was no longer a threat,”

whereas Gilbert “resisted” after he was handcuffed, legshackled, and pinned down by six officers.

For two reasons, this proposed distinction collapses.

First, none of the other circuits require a person to be

totally still—after being handcuffed, shackled, and held to

the ground—to have a right to be free of deadly force to

the back. To the contrary, the other circuits reject the

argument that officers may push down on someone who is

“handcuffed [with] his ankles tied” until he is “still.” Rivas

v. City of Passaic, 365 F.3d 181, 200 (3d Cir. 2004). So

when other circuits use the word “subdued,” they mean

that the suspect “lacks any means of evading custody and

does not pose a threat of immediate harm,” Timpa, 20

-3F.4th at 1029—not that his “every inch [is] immobilized,”

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

The other circuits further recognize that a decedent’s

“physical movements” after being handcuffed and pinned

down may be found to have been “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.” Martin

v. City of Broadview Heights, 712 F.3d 951, 959-63 (6th

Cir. 2013).

Each circuit mentioned in the petition recognizes these

principles—many in cases involving a continued struggle

even after the decedent was handcuffed and held down:

Fifth Circuit: Timpa, 20 F.4th at 1029-31 (holding

that prone decedent was “subdued” once handcuffed—

despite “squirming,” “moving his head,” and “rais[ing] his

torso”—and denying immunity because a “jury could find

that a [trained officer] would have concluded that [he] was

struggling to breathe, not resisting arrest”); Fairchild v.

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

immunity for force to back of man who was “handcuffed,”

held down, and thus “subdued”).

Ninth Circuit: Hyde, 23 F.4th at 871 (holding that,

because decedent “had his hands handcuffed behind his

back,” “his legs shackled,” and “seven officers surrounded

him,” the officers “should have recognized that [he] had

effectively stopped resisting and posed no threat”); Pet.

17-18 (citing three other Ninth Circuit cases).

Sixth Circuit: Hopper v. Plummer, 887 F.3d 744, 755

(6th Cir. 2018) (denying immunity because, “while

[decedent] may have kicked and thrashed, defendants did

not consider him a threat to anyone after he was

handcuffed”); Martin, 712 F.3d at 959 (denying immunity

where decedent “actively struggled” while pinned to the

ground); Kulpa v. Cantea, 708 F. App’x 846, 851-53 (6th

-4Cir. 2017) (denying immunity for 45 seconds of force to

back of “squirming” detainee).

Seventh Circuit: Abdullahi v. City of Madison, 423

F.3d 763, 771 (7th Cir. 2005) (denying immunity for 30-45

seconds of force to back of aggressive suspect, because his

“attempts to ‘squirm’ or arch his back upward … may not

constitute resistance at all, but rather a futile attempt to

breathe”).

Tenth Circuit: Weigel, 544 F.3d at 1152 (denying

immunity for force to back of aggressive suspect because,

once he was handcuffed and bound, there was no basis to

believe that he “still pose[d] a threat to the officers, the

public, or himself unless he was maintained on his stomach

with pressure imposed on his upper back”).

Third Circuit: Rivas, 365 F.3d at 199-201 (holding

that “a reasonable jury could find that the continued use

of force” on someone who “was handcuffed and had his

ankles tied”—“press[ing] down on [his] back” until he was

“still,” causing him to die—is excessive under “clearly

established” law).

First Circuit: McCue v. City of Bangor, 838 F.3d 55,

63-64 (1st Cir. 2016) (holding that prone decedent was

“subdued and/or incapacitated” once his “wrists and

ankles [were] cuffed, thus minimizing his range of

movements and the danger that he posed to his own and

others’ safety,” and his continued “movements,” including

“squeezing” an officer, “may not constitute resistance at

all, but rather a futile attempt to breathe”).

Fourth Circuit: Est. of Armstrong v. Village of

Pinehurst, 810 F.3d 892, 905 (4th Cir. 2016) (“[W]e [have

consistently] declined to equate conduct that a police

officer characterized as resistance with an objective threat

to safety” justifying force, because “‘physical resistance’ is

not synonymous with ‘risk of immediate danger’”);

-5Lawhon v. Mayes, 2021 WL 5294931, *2 (4th Cir. 2021)

(applying this rule, denying immunity, and holding 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, [is] excessive”).

Second, this case fits comfortably alongside these

other cases. Despite respondents’ repeated assertions to

the contrary, Gilbert was not “resisting” after he was

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

least not in any relevant sense. BIO 2; see JA275 (Gilbert

“stopped struggling” after being “handcuffed and

secured”); JA1795 (Gilbert “couldn’t harm anyone” once

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

9-10), the district court accepted as true that, once Gilbert

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

or being violent,” App. 60a; he “posed no threat,” App. 58a;

and he “was ‘yelling pleas for help’ and pleading ‘It hurts.

Stop.’” App. 62a. Nor did he try to bang his head on the

floor at that point. Even if he began “wiggling” and “tried

to righten his posture,” JA1520, he did so only “off and on”

and “stop[ped] for a while,” JA443-44—conduct that was

“based on ‘air hunger,’” App. 60a. Nevertheless, the

“[o]fficers used force upon his back,” App. 87a, “sides,”

and “torso,” App. 65a, and did so “for fifteen minutes,”

App. 76a, 87a. They “did not stop using force until after

they realized [he] had stopped breathing.” App. 79a-80a.

There is no doubt that, if these same facts presented

themselves in any of the other circuits, the officers would

not be entitled to immunity. Not so in the Eighth Circuit.

II. Respondents do not deny that the question recurs

frequently, a uniform rule is necessary, and

adherence to this Court’s mandates is essential.

This division of authority is unacceptable. Although

respondents dispute the existence of the split, they do not

-6deny the need for uniformity—a point reinforced by

NACDL in its brief. Nor do respondents deny that pronerestraint deaths recur with “unfortunate frequency.”

Drummond v. City of Anaheim, 343 F.3d 1052, 1063 (9th

Cir. 2003).

Indeed, just last week, a video from yet another such

death was released. It involved facts just like those here:

Seven officers pressed down on a handcuffed and shackled

man during a mental-health crisis—for “11 minutes until

he stop[ed] moving.” Rizzo, Vozzella, & Oakford, Video

shows Va. deputies pile on top of Irvo Otieno before his

death, Wash. Post (Mar. 22, 2023), https://perma.cc/79PLT2H6. He then “died of asphyxia.” Id. In the video, the

man can be seen moving throughout, with “the group [of

officers] los[ing] its grip” on him at one point, after which

he continued to struggle. Id. But whereas a grand jury

indicted those officers for murder, the Eighth Circuit held

that a civil jury was required to find that the officers here

are immune from civil liability—for the same conduct.

This disparity is intolerable. As the petition put it:

“The legitimacy of our criminal-justice system depends on

the evenhanded distribution of justice, particularly for

matters of life and death,” as does “[p]ublic confidence in

that system.” Pet. 26. Respondents have no rebuttal.

Nor do respondents dispute the need for compliance

with this Court’s mandates, or make any effort to show

that the Eighth Circuit did that here. For that reason, too,

certiorari is warranted.

III. Respondents’ vehicle arguments contradict both

this Court’s opinion and Justice Alito’s dissent.

Unable to disprove the split or diminish its importance,

respondents try to muck up the case as a vehicle. They do

so in three ways. All fail.

-7Respondents first contest the factual premises of the

question presented. They claim that no force was used on

Gilbert’s back and that he never struggled to breathe. BIO

8, 23-24. But this Court has already explained that “record

evidence … shows that officers placed pressure on

Gilbert’s back”; he “tried to raise his chest, saying, ‘It

hurts. Stop.’”; and his struggles may have been “due to

oxygen deficiency, rather than a desire to disobey officers’

commands.” Lombardo v. St. Louis, 141 S. Ct. 2239, 224041 (2021). The district court also assumed that “[o]fficers

used force upon [Gilbert’s] back” and his struggles were

“based on ‘air hunger.’” App. 60a, 87a. The Eighth Circuit

begrudgingly did so too. App. 6a-7a. By highlighting these

factual predicates, then, respondents only underscore a

strength of this case as a vehicle: The key facts are all

assumed and have already been identified by this Court.

Next, respondents claim that answering the question

presented here would be “fact-intensive” and “not provide

helpful guidance.” BIO 22. But any case presenting this

question will entail examination of a specific record. Even

so, a “decision by this Court on the question presented

here could be instructive.” Lombardo, 141 S. Ct. at 2242

(Alito, J., dissenting). That is especially true because this

case has all the features of a typical prone-restraint death:

A person with underlying health problems had a mentalhealth crisis, was initially combative, and then thrashed

trying to breathe. See JA1930-31 (DOJ bulletin describing

the “cycle of suspect resistance and officer restraint”).

Even if the Court were to find that the officers are all

entitled to immunity, it could still provide useful guidance.

The Court could—and should—answer the constitutional

question, which would leave no doubt that officers have

clear notice going forward and “be beneficial in developing

constitutional precedent” in an area where uniformity is

-8essential. Plumhoff v. Rickard, 572 U.S. 765, 774 (2014)

(cleaned up). Were the Court to do so, it could also address

one or more related questions of broader importance.

Like: What constitutes deadly force? To what extent can

deadly force be justified by a concern about self-harm?

How should courts analyze assertions of resistance? How

should courts exercise their discretion to avoid deciding

the constitutionality of the officers’ actions? And so on.

Finally, respondents point out that qualified immunity

requires an officer-by-officer assessment of wrongdoing,

BIO 25. But even if some officers played no role in the

challenged conduct, that is no barrier to review. The grant

of summary judgment to those officers would not be

disturbed by answering the question presented in favor of

petitioner. The only claims that would be revived are those

against the officers who had a hand in the unconstitutional

conduct—restraining Gilbert in a prone position for 15

minutes and pushing on his back while doing so.1

IV. Like the Eighth Circuit, respondents ignore this

Court’s instructions.

On the merits, respondents defend the decision below

as “manifestly correct.” BIO 28. But they make the very

error that they claim to condemn: defining the right at too

high a level of generality. The question isn’t whether “the

use of a prone restraint” was clearly unconstitutional, or

To be clear, petitioners are not challenging “the use of prone

restraint” in general. Contra BIO 1, 22, 34. They are challenging the

use of prone restraint plus force to the back, causing someone’s death.

At least six officers played a role in that conduct, while one or both of

two officers (Mack and Opel) applied force to Gilbert’s back. See

JA1794 (one officer applied force to “upper right side” while another

applied force to “torso”); JA341 (230-pound Opel “controlled

[Gilbert’s] right side” and pushed on “shoulder”); JA206 (Mack on

“upper portion” of Gilbert); JA304 (Mack on “upper left shoulder”).

-9whether “this Court has … held that prone restraint is

generally unconstitutional.” BIO 29-30. The question is

whether, in late 2015, it was “clearly established that

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

handcuffed and his legs restrained, [is] constitutionally

unreasonable.” Weigel, 544 F.3d at 1155. By the same

token, the question isn’t whether the person had been

struggling or “resisting” the compressive force; it is

whether the person posed a risk that justified that force.

Respondents barely try to answer these questions.

They do not argue that Gilbert was a threat to the officers

once he was handcuffed, shackled, and surrounded. Their

argument, rather, is that “he was a threat to himself.” BIO

3. Yet they cite no evidence that he tried to hit his head on

the floor at any point during the 15 minutes he was prone.

Nor do they articulate how pushing on his back—causing

his death—was necessary to serve this asserted interest.

And it plainly was not. By then, he “was not combative,

posed no threat to others, and, to the extent []he posed a

risk to h[im]self, that risk could have been managed by

simply holding [his] head to prevent injury.” Helm v.

Rainbow City, 989 F.3d 1265, 1274-75 (11th Cir. 2021).

Nor do respondents meaningfully address the facts

and circumstances identified in this Court’s opinion. The

“well-known police guidance” on prone restraint, for

example, is not mentioned in their brief. Lombardo, 141 S.

Ct. at 2241. As the policing scholars’ brief lays out in detail

(at 3): “Officers are routinely cautioned that a prone

suspect’s movement is not resistance, but an involuntary

reaction as the pressure of being held prone forces the

oxygen from their lungs and makes it impossible to

breathe.” Respondents entirely ignore this point.

They instead rely on Eighth Circuit precedent. See

BIO 32-34 (citing Ryan v. Armstrong, 850 F.3d 419 (8th

-10Cir. 2017), and Hanson as Tr. for Layton v. Best, 915 F.3d

543 (8th Cir. 2019)). But neither Ryan nor Hanson had

been decided at the time of Gilbert’s death, so neither case

could have affected the officers’ behavior. And although

Hanson held that “there is no clearly established right

against the use of prone restraints for a suspect that has

been resisting,” 915 F.3d at 548, this case involves not just

“the use of prone restraints,” but also force to the back.2

Further, while the officers wouldn’t have been aware

of these cases, they should have known about Henderson

v. Munn, 439 F.3d 497 (8th Cir. 2006). There, a resisting

suspect was put “face down on the ground with both arms

handcuffed behind his back.” Id. at 503. The Eighth

Circuit explained that, “in this compromising position, [he]

posed little or no threat to the safety of the officers or

others. By the time [he] was handcuffed and pinned face

down on the ground, a reasonable jury could decide [he]

was no longer resisting arrest, even if he had resisted

arrest before being subdued.” Id. So even in the Eighth

Circuit, the law was clear: Gilbert was “subdued.” Force

to his back was thus unconstitutional under the “clearly

established” rule prohibiting the use of such force on a

“subdued” person. McCue, 838 F.3d at 64. Because the

panel below has again held otherwise, this Court should

again intervene, either summarily or with a plenary grant.

CONCLUSION

This Court should grant the petition.

If anything, these cases show the need for this Court to act now,

before Ryan, Hanson, and Lombardo are allowed to complicate the

clearly-established analysis in a future Eighth Circuit case.

-11Respectfully submitted,

/s/ Jonathan E. Taylor