Wednesday Writs: The Court Don’t Care About Your Feelings Edition

Public courtroom in Independence Hall. Photo by Antoine Taveneaux, CC BY-SA 3.0 <https://creativecommons.org/licenses/by-sa/3.0>, via Wikimedia Commons

WW1: Qualified Immunity made an appearance this week at the Supreme Court — sorta. The Court issued a per curiam opinion sending an excessive force case back to the lower court for further review. The case, Lombardo v. St. Louis, involved the death of Nicholas Gilbert. In 2015, Gilbert was arrested for trespassing and failure to appear in court. Of course, such frightfully dangerous criminal acts required that he be held in jail. Guards say then entered the cell when Gilbert appeared to be trying to hang himself and saved him from doing so by placing him prone on the concrete with one guard “placing pressure” on Gilbert’s torso and chest. Gilbert struggled and pleaded for them to stop, before losing consciousness, a pulse, and ultimately his life.

The District Court granted summary judgment to the guards on the basis of qualified immunity, holding that no “clearly established constitutional right” had been violated. The Eighth Circuit affirmed the dismissal, but on the grounds that the guard’s actions did not constitute excessive force. In its unsigned per curiam opinion, the Supreme Court instructs the Circuit Court to reconsider:

…the inquiry “requires careful attention to the facts and circumstances of each particular case.” Graham, 490 U. S., at 396. Those circumstances include “the relationship between 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 limit the amount of force; the severity of the security problem at issue; the threat reasonably 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 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.”  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.  Such details could matter when deciding whether to grant summary judgment on an excessive force claim. [Some citations omitted.]

The Court listed several other facts the lower court erroneously deemed irrelevant, including that the officers’ actions appear to be in conflict with their training that pressing down on a person’s back can cause suffocation. Though the Court’s language seemed fairly damning to the officers, they were careful to avoid a definitive conclusion:

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.

Though the opinion was unsigned, we can still tell, more or less, how the members of the court landed thanks to a dissent written by Justice Alito and joined by Thomas and Gorsuch. Per Alito, if the Court is going to take the rare step of second guessing the factual determinations of a lower court, it should do so by a full consideration of the case including briefing and argument.

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 reasonable basis for using some degree of force to restrain Gilbert so that he would not harm himself, and it appears that Gilbert, despite his slight stature, 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.

WW2: Sometimes, SCOTUS has a large impact when it says nothing at all. This week the Court announced it would not take up an appeal by a Virginia school board seeking to overturn a transgender student’s lower court victory in a case regarding his bathroom usage. The student, now several years out of high school, won at the Fourth Circuit – twice – and the Court left his win in tact without further comment. Thomas and Alito voted to hear the case, but they did not put their reasons in writing, either.

WW3: This week in things a lawyer repping the government doesn’t want to hear from a judge: “I won’t put you on the spot and ask you if you’ve ever dealt with a statute that was more poorly drafted.” These were the words of federal Judge Robert Hinkle to attorneys defending a new Florida law that would punish social media platforms that boot political figures, like Twitter did Donald Trump. Quite often, a lawyer knows before leaving the courtroom whether they have prevailed or lost miserably, and in this case that was pretty clear.

WW4: If you were hoping to retain the crackerjack legal services of Rudolph W. Giuliani (and if you were, we should have a talk), you are out of luck. A New York state appellate court has suspended his license to practice law. The decision is based on the court’s finding that Giuliani pushed false statements about alleged fraud in the 2020 presidential election. It has been a remarkable tumble into disgrace for the former NYC Mayor and US Attorney, who joins Sidney Powell and Lin Wood on the list of once-prominent attorneys who have sacrificed their reputations at the altar of Trumpism.

WW5: The “Free Britney” folks who have been concerned that the former pop-starlet has been unfairly treated by her conservator-father have been vindicated. Britney pleaded with a judge to end her father’s control over her. She is unable to make her own birth control decisions, access her own money, or even choose the color of her kitchen cabinets, but apparently has been allowed to perform nightly and make tens of millions of dollars for her father to control. As heartfelt and sad as her testimony was, she probably still has a hill to climb to be released, according to some experts in the subject.

WW6: Jacob Zuma, former president of South Africa, has been sentenced to more than a year in prison for contempt related to his refusal to appear in court for an inquiry into corruption allegations. He is ordered to turn himself in the next five days. He is accused of bribery, among other things.