Jody Lombardo; Bryan Gilbert, Plaintiffs - Appellants v. City of St. Louis; Ronald Bergmann, Sergeant, individually and in his official capacity as an officer for the St. Louis City Police Department; Joe Stuckey, Officer, individually and in his official capacity as an officer for the St. Louis City Police Department; Paul Wactor, Officer, individually and in his official capacity as an officer for the St. Louis City Police Department; Michael Cognasso, Officer, individually and in his official capacity as an officer for the St. Louis City Police Department; Kyle Mack, Officer, individually and in his official capacity as an officer for the St. Louis City Police Department; Erich vonNida, Officer, individually and in his official capacity as an officer for the St. Louis City Police Department; Bryan Lemons, Officer, individually and in his official capacity as an officer for the St. Louis City Police Department.; Zachary Opel, Officer, individually and in his official capacity as an officer for the St. Louis City Police Department; Jason King, Officer, individually and in his official capacity as an officer for the St. Louis City Police Department; Ronald Degregorio, Officer, individually and in his official capacity as an officer for the St. Louis City Police Department, Defendants - Appellees
No. 19-1469
United States Court of Appeals For the Eighth Circuit
Filed: June 29, 2022
Appeal from United States District Court for the Eastern District of Missouri - St. Louis. Submitted: July 30, 2021.
Before COLLOTON, SHEPHERD, and ERICKSON, Circuit Judges.
This matter comes to us on remand after the Supreme Court vacated our previous opinion, Lombardo v. City of St. Louis, 956 F.3d 1009 (8th Cir. 2020), vacated, 141 S. Ct. 2239 (2021) (per curiam), which affirmed the district court’s1 grant of summary judgment in favor of defendants, the City of St. Louis (the City) and certain St. Louis Metropolitan Police Department (SLMPD) officers, on claims arising from the death of Nicholas Gilbert while in SLMPD custody. In our previous opinion, we concluded that the district court properly determined that the officers were entitled to qualified immunity on claims alleged by Gilbert’s parents, Jody Lombardo and Bryan Gilbert (together, Lombardo), because the officers did not apply unconstitutionally excessive force in restraining Gilbert and that, in the absence of an underlying constitutional violation, the City could not be liable for an alleged unconstitutional policy or failure to train its officers. The Supreme Court granted Lombardo’s petition for certiorari, vacated our judgment, and remanded the case for further consideration. Lombardo v. City of St. Louis, 141 S. Ct. 2239 (2021) (per curiam).
On remand, the Supreme Court directed us “to employ an inquiry that clearly attends to the facts and circumstances” of the incident between Gilbert and the officers in considering “whether the officers used unconstitutionally excessive force or, if they did, whether Gilbert’s right to be free of such force in these circumstances was clearly established at the time of his death.” Id. at 2242. We now conclude that the officers are entitled to qualified immunity because the right in question was not clearly established at the time of Gilbert’s death and the City is not liable for a policy of deliberate indifference in the absence of a clearly established constitutional right. Accordingly, we affirm the judgment of the district court.
I.
As we did in our previous opinion, we recite the facts in the light most favorable to Lombardo, the non-moving party. Walton v. Dawson, 752 F.3d 1109, 1114 n.1 (8th Cir. 2014). The events giving rise to this action occurred on December 8, 2015, when SLMPD officers arrested Gilbert on
After Gilbert was placed in an individual cell, officers in the holdover observed him beginning to engage in unusual behavior. Gilbert waved his hands in the air, rattled the bars of his cell, threw his shoe, and bobbed up and down. Officer Jason King then observed Gilbert tie an article of clothing around the bars of his cell and his neck, after which Officer King verbalized that Gilbert appeared to be trying to hang himself. Officers Paul Wactor, Ronald DeGregorio, and Joe Stuckey were in the holdover at the time of Officer King’s warning; Officer Wactor immediately left the area to notify a supervisor, while Officer DeGregorio observed Gilbert with clothing tied around his neck and around the bars of his cell before he, too, tried to notify a supervisor. Upon hearing Officer King’s warning, Officer Stuckey responded to Gilbert’s cell, followed by Officer DeGregorio and Sergeant Ronald Bergmann, a supervisor who had entered the holdover and was informed that Gilbert was attempting to harm himself.
When Officer Stuckey reached Gilbert’s cell, he did not observe Gilbert with any clothing tied around his neck. Nevertheless, based on Officer King’s stated observation, Officer Stuckey began to handcuff Gilbert. Officer Stuckey was only able to place a handcuff on Gilbert’s left wrist before Gilbert began struggling. The struggle continued between Gilbert and Officer Stuckey but grew to include Officer DeGregorio and Sergeant Bergmann. The officers brought Gilbert to a kneeling position with his upper body lying across a concrete bench in the cell. Officer Stuckey, with Sergeant Bergmann’s assistance, then secured the handcuff around Gilbert’s right wrist. Gilbert did not remain subdued for long: Gilbert tried to stand up; began thrashing; struck his head on the concrete bench, sustaining a laceration to his forehead; and kicked his legs, striking Officer Stuckey in the groin area. Officer Stuckey left the cell, and Sergeant Bergmann called for someone to bring leg shackles to further restrain Gilbert.
Officers Wactor and King responded to Sergeant Bergmann’s request for leg shackles; Officer Wactor brought the shackles to Gilbert’s cell, and Officer King assisted him in placing the shackles on Gilbert’s legs. Sergeant Bergmann also requested medical assistance, and Officer King left the cell and radioed dispatch to request emergency medical services (EMS), explicitly mentioning Gilbert’s “possible psychotic issues.” Officer Stuckey left the holdover and called out for assistance with a combative subject, after which the holdover alarm, indicating that an officer is in need of assistance in the holdover, was activated. Officer Stuckey remained outside of the holdover for several
Several officers responded to the holdover alarm, including Officer Kyle Mack, who entered the cell and observed the remaining officers struggling to control Gilbert. At that time, Gilbert was still positioned over the concrete bench and was both handcuffed and shackled. Officer Mack relieved Officer DeGregorio, who was tiring from the struggle, and took hold of Gilbert’s left arm, attempting to stop Gilbert from thrashing and hitting his head against the concrete bench. Officer DeGregorio then left the cell to catch his breath. Officer Mack assisted Officer Wactor and Sergeant Bergmann in moving Gilbert from the bench to a prone position on the floor in an attempt to better control Gilbert.
Once Gilbert was in the prone position on the floor, Sergeant Bergmann was relieved by Officer Zachary Opel, who had entered the cell to assist in controlling Gilbert. Officer Opel relieved Sergeant Bergmann by taking control of Gilbert’s right side. Sergeant Bergmann, who was also growing exhausted from the struggle, exited the cell. Officers Michael Cognasso, Bryan Lemons, and Erich vonNida, who had also responded to the call for assistance and entered the cell, were also involved in attempting to bring Gilbert under control. After observing Gilbert thrashing his body and kicking officers with his shackled legs, Officer Cognasso put his knees on the back of Gilbert’s calves to prevent Gilbert from further striking the officers. Officer Lemons similarly placed his knee on one of Gilbert’s legs to prevent him from kicking, while Officer vonNida held Gilbert’s arm or leg to prevent Gilbert from continuing to thrash his body. Gilbert continued to resist, and he raised his chest up off the floor and told officers to stop because they were hurting him.
Throughout the course of the struggle, officers controlled Gilbert’s limbs at his shoulders, biceps, legs, and lower or middle torso. Officers allegedly applied pressure to Gilbert’s back despite SLMPD instructions to its officers that pressing down on the back of a subject in a prone position can cause suffocation and in spite of well-known police guidance that, as soon as a suspect is handcuffed, officers should remove him from his stomach. The officers did not respond to Gilbert’s complaints, nor did they appear to recognize that Gilbert’s struggles could be due to oxygen deficiency, something well-known police guidance cautions officers to look for, rather than a continued desire to disobey commands. After 15 minutes of struggling while in the prone position,2 Gilbert stopped resisting, and officers rolled him from his stomach to his side.
At some point while he was in the prone position, Gilbert stopped breathing. Officer
Post-mortem examination and testing revealed that Gilbert had a large amount of methamphetamine in his system and significant heart disease. The St. Louis City Medical Examiner’s autopsy report categorized the manner of death as accidental and determined that the cause of death was arteriosclerotic heart disease, exacerbated by methamphetamine and forcible restraint. The autopsy report also noted that Gilbert had contusions and lacerations on his face and upper and lower extremities, a small contusion on his left shoulder area, and a fractured sternum. Lombardo secured a second expert report, which opined that Gilbert’s cause of death was forcible restraint inducing asphyxia.
Lombardo filed suit under
II.
Lombardo asserts that the district court erroneously concluded that the officers were entitled to qualified immunity on the Fourth Amendment excessive force claim. “We review a district court’s qualified immunity determination on summary judgment de novo, viewing the record in the light most favorable to [the non-moving party] and drawing all reasonable inferences in her favor.” Krout v. Goemmer, 583 F.3d 557, 564 (8th Cir. 2009) (emphasis omitted). In considering a claim of qualified immunity, we apply the familiar two-prong inquiry: “(1) whether the facts shown by the plaintiff make out a violation of a constitutional or statutory right, and (2) whether that right was clearly established at the time of the defendant’s alleged
Although we decided the initial iteration of this appeal on the grounds that Lombardo failed to demonstrate a violation of a constitutional right, we now resolve this appeal by relying on the clearly established prong of the qualified immunity analysis.3 The Supreme Court has cautioned that “[i]n general, courts should think hard, and then think hard again” before deciding a constitutional question that need not be resolved to dispose of a case. Camreta v. Greene, 563 U.S. 692, 707 (2011). Given the intensive factual nature of this case, and the “longstanding principle of judicial restraint . . . that courts avoid reaching constitutional questions in advance of the necessity of deciding them,” we consider only whether the right was clearly established because it is dispositive to this appeal. Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988).
“To be clearly established, a legal principle . . . must be ‘settled law’ . . . [that is] clear enough that every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply.” Hanson as Tr. for Layton v. Best, 915 F.3d 543, 548 (8th Cir. 2019) (alterations in original) (quoting Dist. of Columbia v. Wesby, 138 S. Ct. 577, 589-90 (2018)). “We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question
beyond debate. Put simply, qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.” De La Rosa v. White, 852 F.3d 740, 745 (8th Cir. 2017) (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015) (per curiam)). “Clearly established law is ‘dictated by controlling authority or a robust consensus of cases of persuasive authority.’” Lane v. Nading, 927 F.3d 1018, 1022 (8th Cir. 2019) (quoting Wesby, 138 S. Ct. at 589-90).
The Supreme Court has never addressed whether prone restraint generally, or a particular use of prone restraint, more specifically, is unconstitutional. And the Supreme Court has never answered the question of whether a right may be clearly established without a Supreme Court case specifically recognizing it. See City of Escondido v. Emmons, 139 S. Ct. 500, 503 (2019) (per curiam) (“[A]ssuming without deciding that a court of appeals decision may constitute clearly established law for purposes of qualified immunity,” and concluding that “the Court of Appeals’ formulation of the clearly established right was far too general”). Thus, assuming, as the Supreme Court has, that a court of appeals decision may constitute clearly established law, the precedent in this area is insufficient to demonstrate that the facts in this case show a violation of a clearly established right of a detainee to be free from prone restraint while resisting.
Further, as we recognized in Hanson, there is no robust consensus of persuasive authority that would render the right clearly established. Decisions from sister circuits finding specific uses of prone restraint to be a violation of a clearly established right involve differing factual scenarios, rendering them inapplicable to the specific right at issue here. For instance, in Weigel v. Broad, 544 F.3d 1143, 1148, 1152-55 (10th Cir. 2008), the Tenth Circuit concluded that the use of prone restraint and applied pressure to a subject’s body, including his back, was an unreasonable use of force and violated clearly established law. But this holding was premised on the fact that the officers continued to apply pressure to the subject after he was already subdued and had stopped struggling. Id. at 1152. Similarly, in Champion v. Outlook Nashville, Inc., 380 F.3d 893, 903 (6th Cir. 2004), the Sixth Circuit held that it is “clearly established that putting substantial or significant pressure on a suspect’s back while that suspect is in a face-down prone position after being subdued and/or incapacitated constitutes excessive force.” There, officers were lying on the suspect “like how wrestlers do in the ring” while every eyewitness said that they did not see the suspect struggling. Id. at 897-98. In Drummond v. City of Anaheim, 343 F.3d 1052, 1062 (9th Cir. 2003), the Ninth Circuit held that officers were not entitled to qualified immunity because “kneeling on the back and neck of a compliant detainee, and pressing the weight of two officers’ bodies on him even after he complained that he was choking and in need of air violates clearly established law.” (emphasis added). Each of these cases is distinct because they involve instances where the subject had ceased resisting while officers were still applying force to a subject in prone position.
Given the foregoing, Gilbert’s right to be free from prone restraint while engaged in ongoing resistance, even where officers applied force to various parts of his body, including his back, was not clearly established in 2015 when the incident with Gilbert occurred. Because the right at issue was not clearly established, the officers are entitled to qualified immunity. The district court thus did not err in granting the officers’ motion for summary judgment based on qualified immunity.
III.
Lombardo also argues that the district court erred in granting summary judgment to the City on the unconstitutional-policy and failure-to-train claims. Lombardo alleges that the City’s policy for restraining detainees in holding cells is facially unconstitutional and caused a violation of Gilbert’s rights and that the City’s failure to train its officers or enact constitutional policies amounts to deliberate indifference. We apply a de novo standard of review to a district court’s grant of summary judgment even where qualified immunity is not involved. See Moyle v. Anderson, 571 F.3d 814, 817 (8th Cir. 2009). “Where the municipality has not directly inflicted an injury, however, ‘rigorous standards of culpability and causation must be applied,’ and a showing of deliberate indifference is required.” Szabla v. City of Brooklyn Park, 486 F.3d 385, 394 (8th Cir. 2007) (en banc) (citation omitted). And a deliberate indifference claim fails in “[t]he absence of clearly established constitutional rights,” so-called “‘clear constitutional guideposts’ for municipalities in the area.” Id. (citation omitted). “[T]he lack of clarity in the law precludes a finding that the municipality had an unconstitutional policy at all, because its policymakers cannot properly be said to have exhibited a policy of deliberate indifference to constitutional rights that were not clearly established.” Id. Because we have concluded that the constitutional right at issue here was not clearly established, Lombardo cannot prevail on her claims against the City. The district court thus did not err in granting summary judgment to the City.
IV.
For the foregoing reasons, we affirm the judgment of the district court.