1 Cite as: 594 U. S. ____ (2021)

Per Curiam 

## 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. 20–391. Decided June 28, 2021

P ER C URIAM

. On the afternoon of December 8, 2015, St. Louis police officers arrested Nicholas Gilbert for trespassing in a con

demned building and failing to appear in court for a traffic ticket. 1 Officers brought him to the St. Louis Metropolitan Police Department’s central station and placed him in a holding cell. At some point, an officer saw Gilbert tie a piece of clothing around the bars of his cell and put it around his neck, in an apparent attempt to hang himself. Three offic

ers responded and entered Gilbert’s cell. One grabbed Gil

bert’s wrist to handcuff him, but Gilbert evaded the officer and began to struggle. The three officers brought Gilbert, who was 5’3” and 160 pounds, 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. After Gilbert kicked one of the officers in the groin, they called for more help and leg shackles. While Gilbert conti nued to struggle, two officers shackled his legs together. Emergency medical services personnel were phoned for assistance. Several more officers responde d. They relieved two of the original three officers, leaving six officers in the cell with

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1 Because this case was decided by summary judgment, the evidence here recounted is viewed “ ‘in the light most favorable’ ” to the nonmoving party (here, Gilbert’s parent s, the petitioners). Tolan v. Cotton , 572 U. S. 650, 655–656 (2014) ( per curiam ).2 LOMBARDO v. ST. LOUIS

Per Curiam Gilbert, who was now handcuffed and in leg irons. The of

ficers moved Gilbert to a pron e position, face down on the floor. Three officers held Gilbert’s limbs down at the shoul

ders, biceps, and legs. At least one other placed pressure on Gilbert’s back and torso. Gilbert tried to raise his chest, saying, “ ‘It hurts. Stop.’ ” Lombardo v. Saint Louis City

, 361 F. Supp. 3d 882, 898 (ED Mo. 2019). After 15 minutes of struggling in this position, Gilbert’s breathing became abnormal and he stopped moving. The officers rolled Gilbert onto hi s side and then his back to check for a pulse. Finding none, they performed chest com

pressions and rescue breathing. An ambulance eventually transported Gilbert to the hospital, where he was pro

nounced dead. Gilbert’s parents sued, alleging that the officers had used excessive force against him. The District 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 estab

lished at the time of the incident. Id., at 895. The U. S. Court of Appeals for the Eighth Circuit affirmed on differ

ent grounds, holding that the officers did not apply uncon

stitutionally excessive force against Gilbert. 956 F. 3d 1009, 1014 (2020). In assessing a claim of excessive force, courts ask “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them.” Graham v. Connor , 490 U. S. 386, 397 (1989). 2 “A court

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2 Petitioners brought th eir excessive force claims under both the Fourth and Fourteenth Amendments. See, e.g., First Amended Com

plaint in No. 4:16–cv–01637, ECF Doc. 28 (ED Mo.), p. 46. We need not address whether the Fourth or Fo urteenth Amendmen t provides the proper basis for a claim of excessive force against a pretrial detainee in Gilbert’s position. Whatever the sou rce of law, in analyzing an excessive force claim, a court must determine whether the force was objectively unreasonable in light of the “ ‘facts and circumstances of each particular3 Cite as: 594 U. S. ____ (2021)

Per Curiam (judge or jury) cannot apply this standard mechanically.” Kingsley v. Hendrickson , 576 U. S. 389, 397 (2015). Rather, the inquiry “requires careful attention to the facts and cir

cumstances of each particular case.” Graham , 490 U. S., at 396. Those circumstances include “the relationship be

tween 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 li mit the amount of force; the se

verity of the security problem at issue; the threat reasona

bly perceived by the officer; and whether the plaintiff was actively resisting.” Kingsley , 576 U. S., at 397. Although the Eighth Circuit cited the Kingsley factors, it is unclear whether the court thought the use of a prone re

straint—no matter the kind, intensity, duration, or sur

rounding 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 unreason

able 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 im

portant 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

—————— case.’ ” Kingsley v. Hendrickson , 576 U. S. 389, 397 (2015) (quoting Gra

ham , 490 U. S., at 396).4 LOMBARDO v. ST. LOUIS

Per Curiam well-known police guidance recommending that officers get a subject off his stomach as soon as he is handcuffed be

cause of that risk. The guidance further indicates that the struggles of a prone suspect may be due to oxygen defi

ciency, 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 relation

ship 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 evi

dence or characterized it as insignificant, the court’s opin

ion could be read to treat Gilb ert’s “ongoing resistance” as controlling as a matter of law. 3 Id. , at 1014. Such a per se rule would contravene the careful, context-specific analysis required by this Court’s ex cessive force precedent. We express no view as to whether the officers used un

constitutionally excessive force or, if they did, whether Gil

bert’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 th e 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. It is so ordered

.

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3 While the dissent suggests we shou ld give the Eighth Circuit the ben

efit of the doubt, in assessing the a ppropriateness of review in this factbound context, it is more prudent to afford the Eighth Circuit an oppor

tunity to clarify its opinion rather than to speculate as to its basis.1 Cite as: 594 U. S. ____ (2021)

A LITO , 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. 20–391. Decided June 28, 2021

J USTICE A LITO , with whom J USTICE T HOMAS and J USTICE G ORSUCH join, dissenting. I cannot approve the Court’s summary disposition be

cause it unfairly interprets th e Court of Appeals’ decision and evades the real issue that this case presents: whether the record supports summary judgment in favor of the de

fendant police officers and the city of St. Louis. The Court of Appeals held that the defendants were entitled to sum

mary judgment because a reasonable jury would neces

sarily find that the police officers used reasonable force in attempting to subdue petition er Lombardo’s son, Nicholas Gilbert, when he was attempting to hang himself in his cell. In reaching this conclusion, the Court of Appeals applied the correct legal standard and made a judgment call on a sensitive question. This case, therefore, involves the appli

cation of “a properly stated rule of law” to a particular fac

tual record, and our rules say that we “rarely” review such questions. See this Court’s Rule 10. But “rarely” does not mean “never,” and if this Court is unwilling to allow the de

cision below to stand, the proper course is to grant the peti

tion, receive briefing and argument, and decide the real question that this case presents. That is the course I would take. I do not think that thisCourt is above occasionally digging into the type of factbound questions that make up much of the work of the lower courts, and a decision by this Court on the question presented here could be instructive. The Court, unfortunately, is unwilling to face up to the2 LOMBARDO v. ST. LOUIS

A LITO , J., dissenting choice between denying the peti tion (and bearing the criti

cism that would inevitably elicit) and granting plenary re

view (and doing the work that would entail). Instead, it claims to be uncertain whether the Court of Appeals actu

ally applied the correct legal st andard, and for that reason it vacates the judgment below and remands the case. This course of action may be convenient for this Court, but it is unfair to the Court of Appeals. If we expect the lower courts to respect our de cisions, we should not twist their opinions to make our job easier. When the Court of Appeals’ opinion is read in the way we hope our opinions will be interp reted, it is clear that the Court of Appeals understood and applied the correct stand

ard for excessive-force claims. The per curiam acknowl

edges that the Court of Appe als correctly cited the factors that must be taken into account in determining whether the officers’ actions were ob jectively reasonable. Ante , at 3; see 956 F. 3d 1009, 1013 (CA8 2020). But the per curiam finds it “unclear whether the [Court of Appeals] thought the use of a prone restraint—no matter the kind, intensity, dura

tion, or surrounding circumstances—is per se constitutional so long as an individual appear s to resist officers’ efforts to subdue him.” Ante , at 3. Can the Court seriously think that the Eighth Circuit adopted such a strange and extreme position—that the use of prone restraint on a resisting detainee is always reason

able no matter how much force is used, no matter how long that force is employed, no matter the physical condition of the detainee, and no matter whether the detainee is obvi

ously suffering serious or even life-threatening harm? Sup

pose officers with a combined weight of 1,000 pounds knelt on the back of a frail and infirm detainee, used all their might to press his chest and fa ce into a concrete floor for over an hour, did not desist when the detainee cried, “You’re killing me,” and ended up inflicting fatal injuries. Does the Court really believe that th e Court of Appeals might have3 Cite as: 594 U. S. ____ (2021)

A LITO , J., dissenting thought that this extreme use of force would be reasonable? Is there any support for that in terpretation in the Court of Appeals’ opinion? The per curiam latches onto this sentence in the opinion below: “This Court has previously held that the use of prone restraint is not objectively unreasonable when a detainee actively resists officer directi ves and efforts to subdue the detainee.” 956 F. 3d, at 1013; see ante , at 3. Read in con

text, its meaning is apparent. The sentence recounts and cites to what the Eighth Cir

cuit had held in an earlier case, Ryan v. Armstrong , 850 F. 3d 419 (2017), in which a resisting detainee had been held in a prone position for a period of time. In order to understand the sentence in the opinion below, it is neces

sary to look at that prior decision. And when the language in the decision below is read in that way, what it obviously means is that the use of prone restraint is not objectively unreasonable per se when a detainee is actively resisting. That is exactly what the appellees, citing Ryan , had argued: “No court has held that placing a resisting prisoner in a prone position while restrained is per se unreasonable.” Brief for Appellees in No. 19–1469 (CA8), p. 24. That is a correct reading of Ryan , and that is how the opinion below interpreted it. Ryan held only that the use of force in that case was rea

sonable based on “the totality of th[e] circumstances,” in

cluding the detainee’s resistance. 850 F. 3d

, at 428. The Ryan court explained:

“ Several factors support the foregoing conclusion. Among the most important is the observation that [the detainee] was actively resisting the extraction proce

dure by ignoring directives to lie down on his bunk and resisting the defendants’ e fforts to subdue him once they entered his cell.” Ibid. (emphasis added).
Thus, Ryan clearly did not adopt any sort of blanket rule,4 LOMBARDO v. ST. LOUIS

A LITO , J., dissenting

and the sentence in this case that the per curiam seizes upon did not purport to go beyond Ryan

. This Court’s per curiam refers to one other statement in the opinion below. The per curiam states: “The [Eighth Circuit] went on to describe as ‘insignifi

cant’ facts that may distinguish [ Ryan ] and appear po

tentially important under Kingsley , including that Gil

bert was already handcuffed and leg shackled when officers moved him to the pr one position and that offic

ers kept him in that position for 15 minutes.” Ante , at 3 (quoting 956 F. 3d, at 1014). Here, again, the per curiam strains to give the Eighth Circuit’s opinion a possible interpretation that can justify a remand. But when this sentence is read in context, what it plainly means is not that the du ration of the officers’ use of force or the fact that Gilbert had been handcuffed and shackled were irrelevant but that certain factual differ

ences between this case and Ryan were not significant in the sense that they did not call for a different result. The court used the term “insignificant” in responding to Lombardo’s efforts to distinguish Ryan . Lombardo argued that this case is different because Gilbert was restrained for a longer period and, unlike the detainee in Ryan , had al

ready been handcuffed and shackled. See 956 F. 3d, at 1014; Brief for Plaintiffs-Appellants in No. 19–1469 (CA8), pp. 14–15. What the Eighth Ci rcuit characterized as “in

significant” were these factual differences between the two cases.*

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*The Eighth Circuit wrote: “Lombardo argues that Ryan is not on point. Specifically, Lombardo argues that, unlike Ryan , in which the detainee was held in prone re

straint for approximately three minutes until he was handcuffed, . . . Gil

bert was held in prone restraint fo r fifteen minutes and was placed in this position only after he had been handcuffed and leg-shackled. Lom

bardo also argues that she presente d expert testimony that Gilbert’s5 Cite as: 594 U. S. ____ (2021)

A LITO , J., dissenting Without carefully studying the record, I cannot be certain whether I would have agreed with the Eighth Circuit panel that summary judgment for the defendants was correct. The officers plainly had a reas onable basis for using some degree of force to restrain Gilb ert so that he would not harm himself, and it appears that G ilbert, despite his slight stat

ure, put up a fierce and prolonged resistance. See 956 F. 3d, at 1011–1014. On the other hand, the officers’ use of force inflicted serious injuries, and the medical evidence on the cause of death was conflicting. See id., at 1012.We have two respectable options: deny review of the factbound question that the case presents or grant the petition, have the case briefed and argued, roll up our sleeves, and decide the real issue. I favor the latter course, but what we should not do is take the easy out that the Court has chosen.

—————— cause of death was forcible restrain t inducing asphyxia whereas the un

disputed cause of death in Ryan was sudden unexpected death during restraint. . . . We find these differenc es to be insignific ant. This Court has previously noted that ‘[h]andcu ffs limit but do not eliminate a per

son’s ability to perform harmful acts.’ United States v. Pope , 910 F. 3d 413, 417 (8th Cir. 2018), cert. denied, [589 U. S. ___ (2019)]. As discussed above, the undisputed facts show that Gilbert continued to violently struggle even after being handcuffed and leg-shackled. Specifically, after being handcuffed, he thrashed his head on the concrete bench, causing him to suffer a gash on his forehead, and he continued to violently thrash and kick after being leg-shackled. Because of this ongoing resistance, the Officers moved Gilbert to the pron e position so as to minimize the harm he could inflict on himself and others.” 956 F. 3d, at 1014.