Dissenters Say Supreme Court Majority Takes Easy Out In Controversial Case

By Megan E. Coleman

On June 28, 2021, the United States Supreme Court issued a per curiam opinion in Jody Lombardo, et al. v. City of St. Louis, Missouri, et al., No. 20-391. The question presented to the Supreme Court was whether a reasonable jury could find that officers used excessive force when they put a handcuffed and shackled person face-down on the ground and pressed into his back until he suffocated to death.

Rather than decide the issue, the per curiam opinion punted the question back to the Eighth Circuit, reasoning that the Eighth Circuit had discounted “insignificant” facts that might have made a difference when deciding whether to grant summary judgment on an excessive force claim. The Supreme Court also asked the Eighth Circuit to clarify whether it believed that the use of a prone restraint is per se constitutional so long as an individual appears to resist officers’ efforts to subdue him.

True to per curiam format, this opinion fails to list an author or name the justices comprising the majority. However, this per curiam opinion features a dissent by Justice Alito, which was joined by Justice Thomas and Justice Gorsuch. The dissent calls into question whether this was a proper use of a per curiam opinion, or instead, whether it was used to avoid deciding a controversial issue in the midst of a social justice movement.

The timing of the issuance of this per curiam opinion fuels the argument by the dissent as this per curiam opinion was issued just three days after Minneapolis Police Officer Derek Chauvin was sentenced for the murder of George Floyd. The Lombardo case presented facts akin to those in George Floyd’s case and ultimately called for a similar determination of whether the police used excessive force under the circumstances.

In Lombardo, the detainee, Nicholas Gilbert, was arrested for minor offenses and taken to a holding cell. While in the cell, Gilbert apparently tried to hang himself so multiple officers entered the cell to intervene. One officer grabbed Gilbert’s wrist to handcuff him and Gilbert began to struggle. Three officers brought him down to a kneeling position over a concrete bench in the cell and handcuffed his arms behind his back. Gilbert reared back, kicking the officers and hitting his head on the bench. The officers called for more help. While Gilbert continued to struggle, two officers shackled his legs together and several more officers responded. Six officers were present in the cell with Gilbert and had successfully handcuffed him and placed him in leg irons. The officers then moved Gilbert to a prone position, face down on the floor. Three officers held his limbs down at the shoulders, biceps, and legs. At least one other 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 could not find a pulse so an ambulance transported him to the hospital where he was pronounced dead.

Gilbert’s parents brought an action against the City of St. Louis and the individual officers, asserting claims for excessive force and deliberate indifference to the detainee’s need for medical care. The central question in the case was whether the police force was excessive under the circumstances.

The City and the police officers moved for a summary judgment which was granted by the district court. On appeal to the Eighth Circuit, the Court of Appeals affirmed, holding that the officers did not apply unconstitutionally excessive force against the detainee. 956 F.3d 1009, 1014 (2020).

Gilbert’s parents petitioned the Supreme Court. In its per curiam opinion, the Supreme Court majority determined that it was “unclear whether the Eighth Circuit thought that 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 also faulted the Eighth Circuit for finding certain facts “insignificant” including whether the detainee was already handcuffed with shackled legs when officers moved him to the prone position where they held him in that position for 15 minutes. The Supreme Court believed these facts were significant in deciding whether to grant summary judgment on an excessive force claim, especially where the record showed that the officers were trained that pressing down on the back of a prone subject can cause suffocation, and that guidance indicates that the struggles of a prone suspect may be due to oxygen deficiency, rather than a desire to disobey officers’ commands.

The Supreme Court did not express a view as to whether the officers used unconstitutionally excessive force. Instead of granting certiorari, the Supreme Court vacated the judgment of the Eighth Circuit and remanded the case to give the Court of Appeals the opportunity to employ a new inquiry with the aforementioned facts in mind.

Justice Alito and his fellow dissenters questioned the authenticity of such a remand and criticized the majority for being “unwilling to face up to the choice between denying the petition (and bearing the criticism that would inevitably elicit) and granting plenary review (and doing the work that would entail).”

Justice Alito believed that the Court’s summary disposition “unfairly interprets the Court of Appeals’ decision and evades the real issue” of whether the record supports summary judgment in favor of the defendant police officers and the City.

According to the dissent, the Eighth Circuit applied the correct legal standard and made a judgment call on a sensitive question, and therefore applied “a properly stated rule of law” to a particular record which Supreme Court Rule 10 says should “rarely” be reviewed by the Supreme Court.

The dissent argued that “if this Court is unwilling to allow the decision below to stand, the proper course is to grant the petition” and “decide the real question that this case presents.” That would be the course of action taken by Justice Alito who said that the Court is not above occasionally digging into the type of fact-bound questions that make up the work of the lower courts.

Justice Alito questioned the Court’s “claim” that it was uncertain whether the Court of Appeals actually applied the correct legal standard, and found the Court’s course of action to be “convenient” for the Supreme Court but “unfair to the Court of Appeals.” The dissent further questioned the sincerity of the majority’s opinion as evidenced by the dissent’s loaded questions to the majority with phrases such as: “Can the Court seriously think…”; “Does the Court really believe…”; and “Is there any support for that interpretation”. According to the dissent, in order to get lower courts to respect the highest Court’s

decisions, the highest Court should not be twisting the lower courts’ opinions to make the highest Court’s job easier.

Justice Alito concluded his dissent by noting that without carefully studying the record, he could not be certain whether he would have agreed with the Eighth Circuit’s decision or not. But what he does believe, is that the only two “respectable” options by the Supreme Court were to deny review or grant the petition. Justice Alito favored granting the petition which would involve, “roll[ing] up our sleeves” to “decide the real issue.” But under no circumstance should the Court have “take[n] the easy out that the Court has chosen.”

We will never know for sure whether the majority was trying to avoid deciding a social justice issue or not, but the format of the per curiam opinion is troublesome because it allows unidentified justices to give majority opinions on matters that are not merely rote or boilerplate, but rather matters such as this that can be quite divisive. Such a procedure makes it difficult to hold the unnamed justices accountable for the rule of law that is being applied in a particular instance and to follow through with whether those same justices are applying the standard equally in other instances.