Justices Slow to Take On Policing Issues

             More than a year after George Floyd’s deaths, the multipronged efforts to reform police policies and practices on use of force have produced only meager results, according to a comprehensive examination by reporters for The Washington Post. Even so, the U.S. Department of Justice and the various police departments that have re-examined their use-of-force policies deserve more credit than the Supreme Court, which has done literally nothing to address the various judicial doctrines that give police officers wider and wider leeway in use of force against civilians.

            In fact, the Court has been sitting for more than nine months on an appeal by the parents of a St. Louis man, who died in a St. Louis jail cell from prone restraint asphyxiation on December  8, 2015, after six police officers held him down until he suffocated to death.

            Nicholas Gilbert’s parents sued the city of St. Louis and the officers for wrongful death, but the federal appeals court for Missouri rejected their suit in an extraordinary decision in April 2020 holding that no reasonable jury could have found the officcrs’ actions to constitute “excessive force.”

            To the contrary, a reasonable jury in Minneapolis concluded a year after the Eighth Circuit’s decision that Derek Chauvin’s actions in George Floyd’s death – comparable to the St. Louis officers’ actions in Gilbert’s death – were not only excessive, but in fact criminal. Chauvin’s lawyer had cited the decision in his defense arguments.

            The Eighth Circuit’s decision in Lombardo v. St. Louis  – by a panel of three Republican-appointed judges – overlooked warnings from policing experts and the U.S. Justice Department dating at least from the 1990s about the risk of “compression asphyxia” from use of pressure on suspects held in prone restraint.

            Representing Gilbert’s parents, the Washington, D.C., civil rights attorney Jonathan Taylor urged the justices in September to hear their appeal to “send a message” about the dangers of leaving police officers and police departments free to engage in a restraint technique well known to be dangerous.

            Taylor went on to cite a compilation by reporters for USA Today showing that at least 134 people have died over the past decade from police officers’ use of prone-restraint techniques on suspects. Taylor, a lawyer with the well-known boutique law firm Gupta Wessler, cited as well a passage from an opinion by another federal appeals court that the “fact pattern” in Gilbert’s death “appears with unfortunate frequency in the reported decisions of the federal courts,” and “with even greater frequency on the street.”

            Taylor described the Eighth Circuit’s decision as “outlandishly wrong” and a candidate for “summary reversal” without full briefing and oral argument. He noted as well that the decision conflicts with rulings by several other federal circuits to have considered the same legal issue.

            More than two dozen “policing scholars” joined in an amicus brief also urging the justices to hear the case. “The Eighth Circuit’s decision is wrong,” they wrote in the brief, “and will be used to condone egregious exercises of force.”

            Despite the clear circuit conflict and the straightforward issue, the justices have yet to decide what to do about the case: to grant certiorari or to dismiss the appeal. The case has been relisted more than a dozen times for the justices’ case-selecting conferences, most recently on Thursday June 10.

            Midway through the 2019 term, the justices considered but rejected a handful of petitions urging them to rethink the use of the judge-made doctrine known as “qualified immunity” that often shields police officers from civil or criminal liability in excessive force cases. As the term was about to end, a team of five reporters with the Reuters news agency published a comprehensive examination of “qualified immunity” cases documenting the role that the fifty-year-old doctrine serves as “a highly effective shield” for cops accused of excessive force.

The Reuters reporters won recognition last week [June 10] not from the Supreme Court but from the committee that awards Pulitzer Prizes for journalism. The Pulitzer committee cited the report for “outstanding data analysis” by two of my Supreme Court press corps colleagues, Lawrence Hurley and Andrew Chung, and three Reuters data reporters: Andrea Januta, Jaimi Dowdell, and Jackie Botts.

The Court’s long delay in acting on the St. Louis case is not unusual. The Court was also slow over the past several months to take on two other hot-button issues: abortion rights and gun safety laws. After sitting on those two cases for months, however, the justices have now agreed to hear Mississippi’s effort to reinstate a law banning most abortions after the fifteenth week of pregnancy and to consider a gun rights group’s effort to strike down a New York law requiring a special need for license to carry a firearm in public.

The clamor for those cases came from the political and legal right, but the justices would do well also to heed the urgent calls from the political and legal left to re-examine police policies on use of force and to strengthen judicial accountability in regard to those policies.

At this writing, however, it appears that they don’t really care to try.