SCOTUS: CA8 reversed for clarity on whether a prone restraint is constitutional per se if suspect is not resisting

“Because it is unclear in this excessive force case whether the Eighth Circuit incorrectly thought the use of a prone restraint is per se constitutional so long as an individual appears to resist officers’ efforts to subdue him, the U.S. Court of Appeals for the 8th Circuit’s judgment is vacated, and the case is remanded to give the lower court the opportunity in the first instance to employ the careful, context-specific analysis required by this court’s excessive force precedent.” [ScotusBlog summary] Lombardo v. City of St. Louis, 20-391 (U.S. June 28, 2021) (per curiam, 6-3):

Although the Eighth Circuit cited the Kingsley factors, 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.” 956 F.3d, at 1013. 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. See 956 F.3d, at 1013–1015.

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. Id., at 1014. Such a per se rule would contravene the careful, context-specific analysis required by this Court’s excessive force precedent.

We express no view as to 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. We instead grant the petition for certiorari, vacate the judgment of the Eighth Circuit, and remand the case to give the court the opportunity to employ an inquiry that clearly attends to the facts and circumstances in answering those questions in the first instance.