Supreme Court Sends Excessive Force Case Back to USCA8

The U.S. Supreme Court issued two summary decisions today. In Lombardo v. St. Louis, No. 20-391, the Court sent a case back to the Court of Appeals for the Eighth Circuit, a procedure known as “grant, vacate, and remand” or GVR. The case involves the death in custody of likely suicidal prisoner who was very actively resisting officers’ attempts to subdue him. Ironically, they caused the very result he tried to inflict on himself–death by asphyxiation.

Quoting a 2015 precedent, the unsigned opinion for the majority says that deciding claims such as these “requires careful attention to the facts and circumstances of each particular case.” See the problem here?

Courts cannot decide whether an officer’s use of force is constitutional without a deep think, but the officer must make that decision on the spur of moment. Very often, the officer is in danger of injury or death at that moment. Who can “deep think” under those circumstances? Could you?

That is why qualified immunity for the officers is absolutely essential. In any discussion of legislation on remedies for excessive force, this must be a line in the sand. Under present law, the employing entity is not liable unless the violation is part of a “pattern or practice.” That part is negotiable.

In this case, the District Court (correctly IMHO) granted summary judgment to the officers on qualified immunity. The Court of Appeals skipped the immunity analysis and went to the underlying constitutional question. (Courts have discretion to decide in either order.) The Supreme Court thought that they didn’t consider all the circumstances well enough. Or maybe they just didn’t make their reasoning clear enough.

Justice Alito, dissenting along with Justices Thomas and Gorsuch, writes, “When the Court of Appeals’ opinion is read in the way we hope our opinions will be interpreted, it is clear that the Court of Appeals understood and applied the correct standard for excessive-force claims.”

On remand, the Court of Appeals could, and probably should, just affirm the District Court’s decision on its own terms. The officers qualify for qualified immunity, and that is the end of the case for them. It is the end of the case for the city as well unless the plaintiffs can make out a “pattern or practice” claim, which I do not expect they can.

The other summary decision today is on exhaustion of administrative remedies in takings-claim cases.

The Court took up two cases for argument next term, both civil. Patel v. Garland, No. 20-979, is an immigration case that seems at first glance to have little or no implications for criminal law.