• Use of Force in Subduing an Unruly Arrestee
• The Use of Force and Civil Liability

A police officer’s use of force against a resisting arrestee must be “objectively reasonable” under the circumstances to be lawful, taking into account the surrounding circumstances.

St. Louis police officers arrested Nicholas Gilbert—all 5’3” and 160 pounds of him—on  December 8, 2015, for trespassing and failing to appear in court for a traffic ticket.  He was transported to the St. Louis P.D. central station and put into a holding cell.  At some point it was noticed that Gilbert was trying to hang himself with a piece of clothing that he had tied to the bars of his cell and strung around his neck.  Officers immediately grabbed him and tried to handcuff him, but Gilbert started to resist.  And so the fight was on.  Once the continually resisting Gilbert was handcuffed, he started to kick, catching one officer in the groin.  So leg shackles were used to secure his feet.  Up to six officers attempted to hold defendant down as he continued to struggle.  Finally, Gilbert was laid face down onto the cement floor with three officers holding his limbs down at the shoulders, biceps and legs.  At least one more officer placed pressure on his back and torso. Gilbert tried to raise his chest, telling the officers; “It hurts. Stop.”  Despite his complaints, he was held like this for some 15 minutes until he quit moving.  Noticing that Gilbert’s breathing had become “abnormal,” and that he had stopped moving, the officers rolled him onto his side, and then his back, to check for a pulse.  Finding none, CPR was performed.  He was transported to the hospital where he was pronounced dead. Gilbert’s parents (the Lombardos) sued in federal court pursuant to 42 U.S.C. § 1983, alleging that the officers had used excessive force against him.  The district (trial) court granted summary judgment in favor of the officers, concluding that they were entitled to qualified immunity because they did not violate a constitutional right that was clearly established at the time of the incident.  The Eighth Circuit Court of Appeals affirmed, but on different grounds, holding instead that the officers did not, as a matter of law, apply unconstitutionally excessive force against Gilbert.  (See Lombardo v. City of St. Louis (8th Cir. Apr. 20, 2020) 956 F. 3rd 1009.)  Specifically, the Eighth Circuit ruled that the officers’ use of a “prone restraint” on plaintiff’s decedent (i.e., Nicholas Gilbert) was not objectively unreasonable given that the decedent actively resisted the officers’ attempts to subdue him. Plaintiffs appealed and the U.S. Supreme Court granted certiorari.

The United States Supreme Court, in a split (6-to-3) decision, reversed.  In any excessive force case, the courts must consider “whether the officers’ actions were ‘objectively reasonable’ in light of the facts and circumstances confronting them.”  (Graham v. Connor (1989) 490 U.S. 386, 397.)  In making this determination, the courts are required to pay “careful attention to the facts and circumstances” of the case in issue, including “the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff’s injury; any effort made by the officer to temper or to limit the amount of force used; the severity of the security problem at issue; the threat as reasonably perceived by the officer; and whether the plaintiff was actively resisting.”  (Kingsley v. Hendrickson (2015) 576 U.S. 389, 397.)  While noting that the Eighth Circuit cites these “Kingsley factors” in affirming the district court’s ruling, the High Court was not satisfied that Eighth Circuit correctly applied them.  Specifically, the Court ruled that “it is unclear whether the (Eighth Circuit) 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 Supreme Court here suggests that this is not necessarily true.  Even more specifically, the Court was troubled by the Eighth Circuit’s conclusion that it was “insignificant” that Gilbert was already handcuffed, and with his legs shackled, when the defendant officers moved him to the prone position, keeping him in that position for 15 minutes.  The Court did not find these facts as necessarily being “insignificant,” noting that such details could (or should) be take into account when deciding whether to grant summary judgment on an excessive force claim.  The Court found it significant that the officers appear to have violated St. Louis P.D.’s polices on this issue, where it instructs its officers that pressing down on the back of a prone subject can cause suffocation.  St. Louis P.D. further tells its officers that the struggles of a prone suspect may be due to oxygen deficiency, rather than a desire to disobey officers’ commands.  St. Louis therefore recommends that officers get a subject up off his stomach as soon as he is handcuffed because of that risk. Such evidence, when considered alongside the duration of the restraint (i.e., 15 minutes) and the fact that Gilbert was handcuffed with his legs shackled at the time, may be pertinent to the relationship between the need for the use of force and the amount of force that was actually used, the security problem at issue, and the threat—to both Gilbert and others—reasonably perceived by the officers.  The Court therefore ruled that because the Eighth Circuit either failed to properly analyze such evidence, or where it did, characterized the relevant factors as insignificant, the case must be remanded in order for the Eighth Circuit to give proper consideration to these issues.  

This decision really tells us nothing, as noted by Justice Samuel Anthony Alito in his three-justice dissent, who suggests instead that the Court should just cut to the chase and decide whether the officers’ actions in this case are indeed protected under the qualified immunity doctrine.  But I briefed it anyway because it highlights the current concerns about how much and what type of force is appropriate to use in a given circumstance.  This is an issue the George Floyd fiasco so suddenly brought to the public’s attention.  On May 25th, 2020, Minneapolis Patrol Officer Derek Chauvin held his knee on Floyd’s neck for over nine minutes while attempting to subdue him, killing him in the process.  Chauvin’s unwise actions instantly converted a drug-abusing five-time felon into a national hero and a martyr.  (Hold your cards and letters, please.  I’m not suggesting at all that Floyd was not a “victim,” or that he otherwise deserved to die.)  But it also sensitized the public to the issue of police officers using excessive force on arrestees; particularly persons of color (although I’m an advocate of the idea that “all lives matter.”)  As a result, certain segments of society have demanded that police departments be reined in, cutting their funding and reducing their authority.  Just as importantly, the whole concept of an officer’s “qualified immunity” from civil liability is being attacked, with demands that it be eliminated; something the Supreme Court has so far declined to do but which some jurisdictions, including both California and the U.S. Congress, are attempting to do via statutory amendments.  Whether or not you are a law enforcement officer, you should be concerned by this trend.  Elimination of the qualified immunity concept does not just increase the possibility that police officers will be held civilly liable for their otherwise discretionary actions in the field.  More importantly, the elimination of qualified immunity will inevitably increase the likelihood that officers in the field will be reluctant to do anything, avoiding confrontations where they really need to be getting involved.  Crime is soaring in the country right now (a whole ‘nother discussion).  But what we’re seeing today is just the tip of the iceberg should the police lose the protections of qualified immunity, thus discouraging them from getting involved.  We don’t want to go there.  So what can law enforcement officers do   I would suggest that St. Louis P.D.’s policies, as described above, should be incorporated by law enforcement agencies nation-wide.  Particularly, don’t discount out of hand an arrestee’s complaint that it hurts, or that he can’t breathe.  At the very least, an officer’s use force in subduing an unruly subject must be used sparingly.   I know the legal test for the use force is when it is “objectively reasonable” to do so. But it might be better to use such force—particularly potentially deadly force—only when it is both reasonable and necessary, and then for only as long as it remains necessary.  California has already imposed this requirement by statute, at least as to the use of “deadly force.”  (See Pen. Code § 835a(a)(2) and (c), effective 1/1/2020; AB 392). Easier said than done, I realize. But it’s the abuses of this power to use force that are getting us into trouble.  The bottom line is that when the need arises, think about what you’re doing.