In a trio of recent cases the Supreme Court has re-affirmed and reassured the Police Community that each excessive force claim “requires careful attention to the facts and circumstances of each particular case.” The Courts defense of this approach could not come at more crucial point in time as the media and court of public opinion has begun examining police conduct with a microscope.
The most noteworthy case of the trio stemmed from U.S. Court of Appeals for the Eighth Circuit. In Lombardo v. City of St. Louis, Missouri[1], the court of appeals, seemed to create a blanket rule for the use of prone restraints when suspects are resisting arrest. More specifically the Court of Appeals held that, “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.” Here the officers had arrested Nicholas Gilbert for failure to appear and trespassing in a condemned building. While in custody at the police station, an officer noticed Gilbert tied a piece of clothing around his neck in an apparent attempt to hang himself from the jail cell bars. At this point three officers brought Mr. Gilbert, who has 5’3” and 160 to his knees over a concrete bench and handcuffed his hands behind his back. Gilbert then reared back, kicking the officers and hitting his head on the bench. Another officer was kicked in the groin. The other officers called for assistance. Additional officers arrived and put Mr. Gilbert into leg irons and held him down by his shoulders, biceps, and legs. Particularly of note, one officer put pressure on Mr. Gilbert’s back and torso. Mr. Gilbert tried to raise his chest saying, “It hurts, stop.” After about 15 minutes of struggle, Mr. Gilbert stopped moving. The officers were unable to find a pulse and he passed away shortly thereafter.
In reviewing the Eighth Circuit’s decision, the Supreme Court determined that the Eighth Circuits “per se” approach circumvents careful analysis and removes any leeway for nuance for each individual situation. Furthermore, the Supreme Court’s decision reflects the Court’s deference for the endless differences each police encounter could involve. A blanket rule for excessive force, specifically as to prone restraints, disregards everything that led up to the potential need to employ such a restraint. Three justices dissented to this decision. Their opinions are not in direct disagreement with the majority opinion, but rather, they suggest the Supreme Court has a duty to determine whether the force used was excessive in an effort to shed clarity for officers moving forward. The dissent is of the opinion that accepting these cases and then consistently remanding them back to the Court of Appeals does nothing more than cause more confusion as to what constitutes excessive force. The dissent argued further that if the Supreme Court is unwilling to provide clarity in a convoluted area of law to the lower courts, they should not hear the case at all. While the majority and dissenting justices have varied opinions as to this case, both outcomes tend to support the notion that each excessive force case is unique and should be treated as such.
The other two decisions coming out of the Supreme Court are Rivas-Villegas v. Cortesluna[2] and City of Tahlequah, Oklahoma v. Bond[3]. Both of these cases repeat and reinforce the need for careful attention to the facts of each individual situation.
The second case in the trio is Bond. This case involved police responding to a domestic disturbance in which an ex-husband, Rollice, had returned to his ex-wife’s house drunk and entered her garage where he kept his tools. A disagreement began between the three police officers on scene and Rollice. The police were at the entrance of the side door of the garage and the suspect was towards the back of the garage. Rollice expressed concern that the officers were going to take him to jail. The officers insisted that they were simply trying to give him a ride home. It was at this point one of the officers realized Rollice began fidgeting with something in his hands and appeared nervous. Subsequently, an officer asked Rollice if they could pat him down for weapons. He refused. It was at this point that one of the police officers stepped into the garage. The other two followed leaving the suspect cornered. As Rollice went towards the workbench, the officers ordered Rollice to stop, but he ignored them, grabbed a claw hammer and held it as if he was going to swing it at the officers. The officers drew their guns and ordered him to drop the hammer. Rollice refused and “took a stance as if he was about to throw the hammer or charge at the officers.” In response, the officers fired and killed Rollice.
The Court of Appeals in the Tenth Circuit said that its current precedent “allows an officer to be held liable for a shooting that is itself objectively reasonable if the officer’s reckless or deliberate conduct created a situation requiring deadly force.” Further it concluded “that a jury could find that [the first officer’s] initial step toward [the suspect] and the officers’ subsequent ‘cornering’ of him in the back of the garage recklessly created the situation that led to the fatal shooting.”
The Supreme Court overruled this decision because for a police officer to be liable under excessive force it must be clearly established that the officer’s conduct was unlawful and an objectively reasonable officer would have been on notice that the conduct was unlawful, otherwise the officer is entitled to qualified immunity. The Court’s analysis of the Officers’ actions was not necessary because it was clear that the Officers had not violated any clearly established law. Therefore, the officers were entitled to qualified immunity from the outset. The Tenth Circuit relied on several cases to establish unlawful conduct, but the Supreme Court found that those cases were not remotely similar to the details of this case. The Tenth Circuit relied upon Allen, a case in which officers responded to a potential suicide call by sprinting toward a parked car, screaming at the suspect, and attempting to physically wrestle a gun from his hands.[4] The officers in this case by contrast, engaged in a conversation with Rollice, followed him into a garage at a distance of 6 to 10 feet, and did not yell until after he picked up a hammer. Because of the stark factual differences in Allen, the Supreme Court did not rely upon it to “clearly establish” that the Officers’ conduct in this case was reckless or that their ultimate use of force was unlawful. It is clear the Court does not want merely similar facts when looking to establish violations of unlawful conduct. Rather they want facts that almost parallel or mimic the ones in which a party is presently arguing.
In the penultimate case of the trio, Rivas-Villegas, police responded to domestic disturbance of a mother and her two children barricading themselves in a bedroom from the mother’s boyfriend, who at the time was believed to have a chainsaw. Upon arrival the officers ordered Cortesluna, the suspect, out of the house with his hands up. As he approached the officers, they saw a knife in his front pocket. They ordered him to keep his hands up, but he put them down, and officers shot him twice with bean bag rounds. He then complied and dropped to the ground. After he was face down on the ground, Officer Rivas-Villegas straddled Cortesluna, placing his left knee on the left side of Cortesluna’s back (the side the knife was on) for no more than eight seconds before he stood up again.
Cortesluna brought suit under the Fourth Amendment for excessive force. The Court of Appeals for the Ninth Circuit held that existing precedent put the officer on notice that his conduct constituted excessive force, therefore he was not entitled to qualified immunity. The Court relied on one case, LaLonde[5], which involved a noise complaint. When the officers arrived, the suspect was in underwear, a t-shirt, and had a sandwich in his hand. The suspect refused officers entry. They entered anyways. They then knocked the sandwich out of his hand, grabbed his ponytail, knocked him to the ground, and pepper sprayed him. At that point the suspect stopped resisting arrest. However, the cop continued and deliberately dug his knee into the suspect’s back causing significant injury.
At issue on appeal to the Supreme Court was whether Rivas-Villegas violated a clearly established law. The Supreme Court compared the facts of LaLonde to the present case under the analysis that was covered in Bond. What the court found was that although both cases involved a knee to the back of someone lying prone and not resisting, but rather complying at the time the knee was placed into their backs. However, the Supreme Court noted that other facts in each case were vastly different and “materially distinguishable.” Contrasting LaLonde against this case it is clear there are stark differences. In LaLonde, officers were responding to a mere noise complaint, whereas here they were responding to an alleged incident of domestic violence possibly involving a chainsaw. In addition, Cortesluna had a knife protruding from his left pocket. Further, in this case, video evidence showed, and Cortesluna did not dispute, that Rivas-Villegas placed his knee on Cortesluna for no more than eight seconds and only on the side of his back near the knife that officers were in the process of retrieving. LaLonde, in contrast, testified that the officer deliberately dug his knee into his back when he had no weapon and had made no threat when approached by police. These facts, considered together in the context of the arrest, materially distinguish this case from LaLonde. Therefore, the Court reasoned that even when the same precedent is at play, the facts must also be so similar such that it would justify stripping officers of the protections afforded to them by qualified immunity.
A review of these cases and the applicability of qualified immunity provides an opportunity for departments to discuss certain topics with its officers, including the use of force and proper technique and changes in the law regarding those techniques. It is clear that the Supreme Court’s analysis relating to qualified immunity is very fact specific, so it is important to be familiar with current caselaw.
[1] Lombardo v. City of St. Louis, Missouri, 2021 WL 4822662, 141 S.Ct. 2239 (2021).
[2] Rivas-Villegas v. Cortesluna, 142 S.Ct. 4 (2021).
[3] City of Tahlequah, Oklahoma v. Bond, 2021 WL 4822664, 142 S.Ct. 9 (2021).
[4] Allen v. Muskogee, Oklahoma, 119 F.3d 837 (10th Cir. 1997).
[5] LaLonde v. County of Riverside, 204 F. 3d 947 (9th Cir. 2000).