Cite as: 600 U. S. ____ (2023) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
JODY LOMBARDO, ET AL. v. CITY OF ST. LOUIS,
MISSOURI, ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No. 22–510. Decided June 30, 2023
The petition for a writ of certiorari is denied. JUSTICE
JACKSON would grant the petition for a writ of certiorari.
JUSTICE SOTOMAYOR, dissenting from the denial of certi-
orari.
“It hurts. Stop.” These were the words of Nicholas Gil-
bert just before he died at the hands of St. Louis police of-
ficers. Lombardo v. St. Louis, 594 U. S. ___, ___ (2021)
(per curiam) (slip op., at 2). The police arrested Gilbert for
trespassing and for failing to show up in court for a traffic
ticket. They took him into custody. Six hours later, Gilbert
was dead. The facts, taken in the light required at this
stage of litigation, show that six officers in a small holding
cell held Gilbert face down on the ground in handcuffs and
leg irons while at least one officer pressed down on his back
for 15 minutes—that is, until Gilbert stopped breathing.
Gilbert’s parents sued. They argued that the police used
excessive force against their son, in violation of the United
States Constitution. The parents demanded a jury trial.
The courts below, however, decided that a trial was unnec-
essary because qualified immunity shielded the officers. A
Federal District Court concluded that the officers did not
violate a constitutional right that was clearly established at
the time of Gilbert’s death. Lombardo v. Saint Louis City,
361 F. Supp. 3d 882, 895 (ED Mo. 2019). The Court of Ap-
peals for the Eighth Circuit went a step further, deciding
that the officers did not violate any constitutional right at
all. 956 F. 3d 1009, 1014 (2020). Both courts focused on
2 LOMBARDO v. ST. LOUIS
SOTOMAYOR, J., dissenting
Gilbert’s perceived “resistance”: Prior to his death, Gilbert
tied a piece of clothing around the bars of his cell and put it
around his neck, attempting to hang himself. When three
officers responded, Gilbert struggled. According to Gilbert’s
parents, however, the evidence shows that after the police
handcuffed Gilbert’s arms behind his back; shackled his
legs; surrounded him with six officers; held Gilbert’s limbs
down at the shoulders, biceps, and legs; and put deadly
pressure on his back, Gilbert’s only movements were that
of a restrained man desperately trying to breathe. Or, at
least, a jury could so find. The Court of Appeals for the
Eighth Circuit ignored that possibility, the parents argued.
This Court summarily vacated the decision of the Eighth
Circuit. Lombardo, 594 U. S., at ___ (slip op., at 4). The
Court explained that the inquiry into whether the officers
used excessive force required “ ‘careful attention to the facts
and circumstances of ’ ” the case. Id., at ___ (slip op., at 3)
(quoting Graham v. Connor, 490 U. S. 386, 396 (1989)). The
Court then identified evidence that the Eighth Circuit im-
properly “failed to analyze” or “characterized” “as insignifi-
cant”: “the duration of the restraint”; “the fact that Gilbert
was handcuffed and leg shackled at the time”; the fact “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”; “well-known
police guidance recommending that officers get a subject off
his stomach as soon as he is handcuffed because of that
risk”; and the fact that such “guidance further indicates
that the struggles of a prone subject may be due to oxygen
deficiency, rather than a desire to disobey officers’ com-
mands.” 594 U. S., at ___–___ (slip op., at 3–4). This evi-
dence, the Court said, was “pertinent to the relationship be-
tween 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.”
Id., at ___ (slip op., at 4).
Cite as: 600 U. S. ____ (2023) 3
SOTOMAYOR, J., dissenting
On remand, the Eighth Circuit did not attend to these
facts in deciding whether the officers used excessive force.
Instead the court simply decided that, even if Gilbert had a
constitutional right to be free from excessive force in such
circumstances, that right was not “clearly established.” 38
F. 4th 684, 686 (2022). In reaching that conclusion, the
Eighth Circuit, once again, focused myopically on Gilbert’s
perceived resistance. The court also ignored that a jury
could determine that any actions by Gilbert did not warrant
the use of deadly force. The St. Louis police were well aware
that prolonged prone restraint with chest compression can
cause suffocation.* Yet the officers applied such force to
Gilbert anyway, even though he was handcuffed and shack-
led, and even though six officers were present to hold his
limbs down. The Eighth Circuit assumed Gilbert’s subse-
quent movements amounted to “ongoing resistance,” id., at
692, rather than efforts to breathe, and the court therefore
analogized his case to Circuit precedent in which the sub-
ject was actively resisting. On that basis, the Court of Ap-
peals concluded that whatever Gilbert’s constitutional
rights were in this situation, they were not clearly estab-
lished. See id., at 691.
Respectfully, I would not let this Court’s mandate be so
easily avoided. Instead, I would again vacate the decision
of the Eighth Circuit and remand for that court to resolve
the question of qualified immunity without assuming that
Gilbert’s final movements were those of a dangerously non-
compliant person posing a threat, rather than of a dying
——————
* When asked whether holding a subject in a prone position and press-
ing on his back could cause suffocation, a representative of the city of St.
Louis confirmed, “We train to that, yes.” Lombardo v. Saint Louis City,
No. 4:16–cv–01637 (ED Mo., Aug. 31, 2018), ECF Doc. 77–10, p. 26 (dep-
osition of Officer Philip Green). The city’s expert likewise agreed that
officers should “not compress [a subject’s] chest” because “if you compress
the chest you can kill somebody.” ECF Doc. 77–14, at 7 (deposition of
Ronald E. Schwint).
4 LOMBARDO v. ST. LOUIS
SOTOMAYOR, J., dissenting
man struggling to breathe while adequately restrained by
handcuffs and leg shackles and surrounded by six officers
in a secure cell. That factual determination, between re-
sistance or desperation, belongs to the jury. It should not
be assumed by a court in assessing whether clearly estab-
lished law exists. By usurping the jury’s role, the courts
below guaranteed that Gilbert’s parents will never obtain
the trial they have long sought.
The “clearly established” prong of the qualified immunity
analysis can pose a very high bar for plaintiffs seeking to
vindicate their rights. Even when government officials vi-
olate the law, qualified immunity shields them from dam-
ages liability unless the “the violative nature of [the] par-
ticular conduct is clearly established.” Mullenix v. Luna,
577 U. S. 7, 12 (2015) (per curiam) (internal quotation
marks omitted). When taken too far, as here, this require-
ment allows lower courts to split hairs in distinguishing
facts or otherwise defining clearly established law at a low
level of generality, which impairs the ability of constitu-
tional torts to deter and remedy official misconduct. See,
e.g., J. Jeffries, The Liability Rule for Constitutional Torts,
99 Va. L. Rev. 207, 256 (2013) (“It is as if the one-bite rule
for bad dogs started over with every change in weather con-
ditions”).
Making matters worse, a court may grant qualified im-
munity based on the clearly established prong without ever
resolving the merits of plaintiffs’ claims. This inhibits the
development of the law. “Important constitutional ques-
tions go unanswered precisely because those questions are
yet unanswered. Courts then rely on that judicial silence
to conclude there’s no equivalent case on the books.” Zadeh
v. Robinson, 902 F. 3d 483, 499 (CA5 2018) (Willett, J., con-
curring dubitante). If this Court is going to endorse this
“Escherian Stairwell,” ibid., then it should instead reex-
Cite as: 600 U. S. ____ (2023) 5
SOTOMAYOR, J., dissenting
amine the doctrine of qualified immunity and the assump-
tions underlying it. The doctrine is a creation of our own
design.
The Constitution’s command is clear: Police officers may
not use deadly force unless they reasonably believe that a
suspect poses a significant threat of death or serious injury
to the officers or others. Tennessee v. Garner, 471 U. S. 1, 3
(1985). We must give officers leeway to use judgment in
close situations, but not so much leeway that we nullify the
Constitution’s protections or permit officers to escape scru-
tiny by juries. Here, the Eighth Circuit improperly seized
the jury’s role and went too far in holding that there is no
claim for unconstitutionally excessive force when six police
officers handcuff, leg-shackle, and surround a man in a se-
cure cell, put him face down on the floor, and push into his
back for 15 minutes until he slowly dies. Nicholas Gilbert
deserved better from the police. His parents and society
deserve better from our courts.