The NCSL Blog


By Lisa Soronen

In a per curiam (unauthored) opinion in Lombardo v. City of St. Louis, Missouri the U.S. Supreme Court ordered the 8th Circuit to decide again whether police officers used excessive force when restraining Nicholas Gilbert on his stomach for 15 minutes and/or should receive qualified immunity.

Gilbert was arrested for trespassing in a condemned building and failing to appear in court for a traffic ticket.

Officers tried to handcuff Gilbert after it appeared he was trying to hang himself in his cell. Gilbert was only 5 feet, 3 inches tall and 160 pounds but he struggled with multiple officers. Ultimately, they were able to handcuff Gilbert and put him in leg irons.

They moved him face down on the floor and held his limbs down at the shoulders, biceps and legs. At least one officer placed pressure on Gilbert’s back and torso. Gilbert tried to raise his chest, saying, “It hurts. Stop.”

After 15 minutes of struggling in this position, Gilbert’s breathing became abnormal and he stopped moving. The officers rolled Gilbert over and checked for a pulse. Finding none, they performed chest compressions and rescue breathing. Gilbert was pronounced dead at the hospital.

Gilbert’s parents sued the officers claiming they violated the Fourth Amendment by using excessive force. A federal district court ruled the officers were entitled to qualified immunity because they did not violate a constitutional right that was clearly established at the time. The 8th Circuit ruled for the officers holding they did not apply unconstitutionally excessive force.

According to the Supreme Court, the 8th Circuit cited the correct factors in determining whether the use of force was reasonable. But it was “unclear whether the court 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.” The 8th Circuit also described as “insignificant” the fact that Gilbert was handcuffed and leg shackled when officers kept him in the prone position for 15 minutes.

According to the Supreme Court, these details matter because “St. Louis instructs its officers that pressing down on the back of a prone subject can cause suffocation,” “well-known police guidance recommending that officers get a subject off his stomach as soon as he is handcuffed because of that risk,” and that “guidance further indicates that the struggles of a prone suspect may be due to oxygen deficiency, rather than a desire to disobey officers’ commands.”

According to the court: “Having either failed to analyze such evidence or characterized it as insignificant, the court’s opinion could be read to treat Gilbert’s ‘ongoing resistance’ as controlling as a matter of law. Such a per se rule would contravene the careful, context-specific analysis required by this court’s excessive force precedent.”

Dissenting Justice Samuel Alito, joined by Clarence Thomas and Neil Gorsuch, concluded the per curiam opinion “unfairly interprets the (8th Circuit) decision and evades the real issue that this case presents: whether the record supports summary judgment in favor of the defendant police officers and the city of St. Louis.”

These justices opined that the 8th Circuit “understood and applied the correct standard for excessive-force claims.” But it might have applied the standard incorrectly. “The officers plainly had a reasonable basis for using some degree of force to restrain Gilbert so that he would not harm himself, and it appears that Gilbert, despite his slight stature, put up a fierce and prolonged resistance.  On the other hand, the officers’ use of force inflicted serious injuries, and the medical evidence on the cause of death was conflicting.”

According to the dissent, the only way to know for sure was to “grant the petition, have the case briefed and argued, roll up our sleeves, and decide the real issue."

Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.