The Volokh Conspiracy

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Unusual Summary Reversal in St. Louis Excessive Force Case

An unusual but welcome move.


While we are waiting for the Supreme Court's last few merits opinions, the Court issued a bunch of moderately interesting orders today, as Josh has discussed below.

One of them was a summary reversal in an excessive force case—in favor of the plaintiff. This is unusual. The Court is more likely to summarily reverse in favor of the officer, especially on qualified immunity grounds.

The case is Lombardo v. St. Louis and the opinion concludes:

Although the Eighth Circuit cited the … factors [from the previous decision of Kingsley v. Hendrickson], it is 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 court cited Circuit precedent for the proposition that "the use of prone restraint is not objectively unreasonable when a detainee actively resists officer directives and efforts to subdue the detainee." The court went on to describe as "insignificant" facts that may distinguish that precedent and appear potentially important under Kingsley, 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.

Such details could matter when deciding whether to grant summary judgment on an excessive force claim. Here, for example, record evidence (viewed in the light most favorable to Gilbert's parents) shows 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. The evidentiary record also includes well-known police guidance recommending that officers get a subject off his stomach as soon as he is handcuffed because of that risk. The guidance further indicates that the struggles of a prone suspect may be due to oxygen deficiency, rather than a desire to disobey officers' commands. Such evidence, when considered alongside the duration of the restraint and the fact that Gilbert was handcuffed and leg shackled at the time, may be pertinent to the relationship between the need for the use of force and the amount of force used, the security problem at issue, and the threat—to both Gilbert and others—reasonably perceived by the officers. 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.

I have not looked carefully at the facts, so I don't have a strong view about he merits, but in general I am glad to see the Court using summary reversals to correct errors on both sides of the issue.

Another interesting, related, development occurs in Justice Alito's dissent. He wrote:

In reaching [its] conclusion, the Court of Appeals applied the correct legal standard and made a judgment call on a sensitive question. This case, therefore, involves the application of "a properly stated rule of law" to a particular factual record, and our rules say that we "rarely" review such questions. See this Court's Rule 10. But "rarely" does not mean "never," and if this Court is unwilling to allow the decision below to stand, the proper course is to grant the petition, receive briefing and argument, and decide the real question that this case presents.

That is the course I would take. I do not think that this Court is above occasionally digging into the type of fact-bound questions that make up much of the work of the lower courts, and a decision by this Court on the question presented here could be instructive.

But as Justice Alito goes on to explain, he thinks the question is close enough that he would prefer to dig in at oral argument rather than summarily reverse.

This opinion is interesting to contrast with his concurring opinion a few years earlier in Tolan v. Cotton, which seemed to express more skepticism about the value of such review —at least in the plaintiff's favor. (And which I criticized here.)

In any event, the statement that the Supreme Court is "not above occasionally digging into … fact-bound questions" struck me as notable, and an accurate reflection of the Court's occasional interest in error correction. Of course, the big question remains how the Court decides what occasions merit that unusual digging in.

[Update: Just after posting this, I saw Josh's latest post below.]