Citations
- 361 F. Supp. 3d 882
Full opinion text
NOELLE C. COLLINS, UNITED STATES MAGISTRATE JUDGE
MEMORANDUM AND ORDER
This matter is before the Court on Defendants' Motion for Summary Judgment (Doc. 63). The Motion is fully briefed and ready for disposition. For the following reasons, Defendants' Motion for Summary Judgment will be GRANTED.
I. Legal Standard
Summary judgment is appropriate when no genuine issue of material fact exists in the case and the movant is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The initial burden is placed on the moving party. City of Mt. Pleasant, Iowa v. Associated Elec. Co-op., Inc. , 838 F.2d 268, 273 (8th Cir. 1988). If the record demonstrates that no genuine issue of fact is in dispute, the burden then shifts to the non-moving party, who must set forth affirmative evidence and specific facts showing a genuine dispute on that issue. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether summary judgment is appropriate in a particular case, the Court must view the facts in the light most favorable to the nonmoving party, and all justifiable inferences are to be drawn in his favor. Benford v. Correctional Medical Services , No. 1:11CV121 JAR, 2012 WL 3871948, at *4 (E.D. Mo. Sept. 6, 2012) (citing Celotex Corp. , 477 U.S. at 331, 106 S.Ct. 2548 ). The Court's function is not to weigh the evidence but to determine whether there is a genuine issue for trial. Id. (citing Anderson , 477 U.S. at 249, 106 S.Ct. 2505 ). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Id. (quoting Torgerson v. City of Rochester , 643 F.3d 1031, 1042 (8th Cir. 2011) ).
II. Background and Undisputed Facts
On October 20, 2016, Plaintiffs Jody Lombardo and Bryan Gilbert ("Plaintiffs") filed a twenty-count action pursuant to 42 U.S.C. § 1983 and Missouri state law against the City and Police Officer Defendants. On December 8, 2015, Plaintiffs' son, Nicholas Gilbert ("Mr. Gilbert"), died while in the custody of the Saint Louis Metropolitan Police Department ("SLMPD"). There were multiple SLMPD officers involved in the incident, all of whom are named Defendants in the lawsuit along with the City of St. Louis ("City"). Those Officers include: Ronald Bergmann ("Seargant Bergmann"), Michael Cognasso ("Officer Cognasso"), Roland DeGregorio ("Officer DeGregorio"), Jason King ("Officer King"), Bryan Lemons ("Officer Lemons"), Kyle Mack ("Officer Mack"), Zachary Opel ("Officer Opel"), Joseph Stuckey ("Officer Stuckey"), Erich vonNida ("Officer vonNida"), and Paul Wactor ("Officer Wactor").
Plaintiffs contend that Mr. Gilbert's death was the direct result of the use of excessive force (Counts V, VII, IX, XII, XIII, XV, XVI, XVII, and XVIII), a deliberate indifference to his need for medical care (Counts VI, VIII, X, XIV, and XIX), and negligence by Defendants (Count XX). Plaintiffs further allege that the City is liable for the death of Mr. Gilbert because its policies, customs, and practices caused the deprivation of Mr. Gilbert's constitutional rights and thus his death (Counts I-IV).
This Court previously dismissed Count XX against the City as well as the official capacity claims against all of the named Police Officer Defendants. (Doc. 22.) In Plaintiffs' response to the Motion for Summary Judgment, Plaintiffs indicated they are not pursuing their claims for deliberate indifference to medical needs or common law negligence claims. They, therefore, consent to dismissal of Counts IV, VI, VIII, X, XIV, XIX, and XX. (Doc. 79.)
Thus, the Counts that remain are as follows: the § 1983 Counts against the City based on its policies, practices, protocols, customs, procedures, and training (Counts I-III) and the § 1983 Counts against each named Police Officer Defendant in their individual capacity based on the alleged use of excessive force in violation of the Fourth and Fourteenth Amendments (Counts V, VII, IX, XI, XII, XIII, XV, XVI, XVII, and XVIII).
A. The Events in the Holdover Cell
The undisputed facts are as follows. On December 8, 2015, at approximately 1:35 p.m., Nicholas Gilbert ("Mr. Gilbert") was arrested by SLMPD officers on suspicion of trespassing and occupying a condemned building and for failing to appear in court for an outstanding traffic violation, a misdemeanor. After his arrest, Mr. Gilbert, who was five feet three inches tall and weighed 160 pounds, was brought to the holdover in the SLMPD's central patrol station. The holdover is a secure holding facility within the SLMPD's central patrol station where prisoners are kept on a temporary basis before being transported to the City's Justice Center downtown. The holdover is comprised of a booking area, where the clerk sits behind a semicircular desk, a main holding cell where prisoners are kept before they are booked, and a locked cell block with eight individual cells for prisoners after they have been booked. In the central patrol holdover, Mr. Gilbert was placed in the main holding cell. During the booking process, Mr. Gilbert was cooperative, and he checked "no" to a question asking whether he had any medical condition of which the police should be aware. After he was booked, Mr. Gilbert was transferred from the main holding cell to an individual cell. (Doc. 78 ¶¶ 13-16, 22, 24, 25, 26, 31; Doc. 86 ¶¶ 1, 3.)
There were several officers in the holdover area at this time, including Officers King, Wactor, DeGregorio, and Stuckey.
Officer King, who was in the holdover assisting a probationary officer with the booking process, observed Mr. Gilbert in his cell, grabbing at the air. Mr. Gilbert's behavior struck Officer King as unusual. Officer Wactor, who was also in the holdover area at the time, had observed Mr. Gilbert waving his hands in the air "almost like he was practicing some type of martial arts." Officer Stuckey, who was in the holdover behind the desk preparing paperwork for a prisoner transport run, had briefly noticed Mr. Gilbert acting strangely, rattling the bars of his cell, throwing his shoe, and bobbing up and down. Officer Stuckey noticed behavior from Mr. Gilbert that he associated with Organic Brain Syndrome. (Doc. 86 ¶ 84.) However, Officer Stuckey had only glanced at Mr. Gilbert for a second or two, had no contact with him, and had no idea whether he had mental problems. (Doc. 78 ¶¶ 31-32, 36, 42, 37, 43.)
After Officer King observed Mr. Gilbert grab at the air and when he looked up again after attending to his probationary officer, Officer King noticed that Mr. Gilbert was tying an article of clothing around the bars of his cell and putting it around his neck. Upon seeing Mr. Gilbert tie an article of clothing around the bars of his cell and to his neck, Officer King stated that Mr. Gilbert appeared to be trying to hang himself. Officers DeGregorio, Stuckey, and Wactor were in the holdover at the time that Officer King made that statement. Upon hearing Officer King, Officer Wactor went to notify a supervisor. Upon hearing Officer King, Officer DeGregorio looked up from his paperwork and saw Mr. Gilbert with clothing tied around his neck and connected to the top bars of his cell. Thereafter, Officer DeGregorio proceeded, like Officer Wactor, to attempt to alert a supervisor of the situation. And upon hearing officers state that Mr. Gilbert was trying to hang himself, Officer Stuckey, who was sitting in the holdover behind the clerk's desk, turned around and saw that Mr. Gilbert had an article of clothing around his neck. (Doc. 78 ¶¶ 31-33, 36, 38, 40-44.)
Officer Stuckey requested Ms. Veronica Wilburn, the clerk who booked Mr. Gilbert, to unlock the secure door to the cell block so that he could respond to Mr. Gilbert's cell. Officer Stuckey proceeded to Mr. Gilbert's cell, and he was followed by Officer DeGregorio and by Sergeant Bergmann, a supervisor who had just entered the holdover and been advised that Mr. Gilbert was attempting to harm himself. (Doc. 78 ¶¶ 45, 46-47.)
As Officer Stuckey approached Mr. Gilbert's cell, the cell door opened. When the cell door opened, Mr. Gilbert did not have any clothing tied to his neck. Early in the encounter, Mr. Gilbert had his hands up.
Officer Stuckey then grabbed Mr. Gilbert by his left wrist and attempted to spin him around to handcuff him. He was able to cuff Mr. Gilbert's left wrist, but Mr. Gilbert evaded having his right wrist cuffed, and he began to struggle with Officer Stuckey and with Officer DeGregorio and Sergeant Bergmann, who had arrived in the cell as well. During the struggle, Mr. Gilbert was brought to a kneeling position over a concrete bench inside the cell. Officer DeGregorio attempted to control Mr. Gilbert by grabbing his left bicep and left wrist. Sergeant Bergmann attempted to control Mr. Gilbert by grabbing his right arm, which Mr. Gilbert was flailing and concealing underneath him in an attempt to avoid being handcuffed. While Mr. Gilbert was kneeled over the bench, Sergeant Bergmann and Officer Stuckey were able to get his right wrist cuffed. (Doc. 78 ¶¶ 49, 52, 53-57; Doc. 86 ¶ 8.)
The Officers eventually cuffed both of Mr. Gilbert's hands. After he was handcuffed, Mr. Gilbert tried to stand up, kicked the officers, and reared backwards off of the bench. Mr. Gilbert also thrashed his head about on the concrete bench and suffered a gash on his forehead, which started to bleed. After he was handcuffed, Mr. Gilbert kicked Officer Stuckey, who had been standing over him to cuff him, in his groin area, causing Officer Stuckey to stumble backward. After Officer Stuckey was kicked, Sergeant Bergmann called for help and for someone to bring leg shackles. (Doc. 78 ¶¶ 58-61.) Officer Stuckey then left and went back to the counter by the clerk's station and could not see Mr. Gilbert. (Doc. 67-8 at 41:15-18, 42:21- 43:17.)
In response to Sergeant Bergmann's request for leg shackles, Officer Wactor retrieved shackles from the central patrol desk and brought them to Mr. Gilbert's cell, where Mr. Gilbert continued to struggle over the bench with multiple officers. Officer King responded to Sergeant Bergmann's request for help, and, after grabbing Mr. Gilbert's ankles to keep him from kicking, assisted Officer Wactor in shackling Mr. Gilbert's legs. (Doc. 78 ¶¶ 62-63.)
After Mr. Gilbert's legs were shackled, Sergeant Bergmann requested that someone call EMS. Sergeant Bergmann's intention in requesting EMS was to get Mr. Gilbert to a hospital to determine if he was fit for confinement or, alternatively, to be admitted to the hospital for his suicide attempt. Upon hearing Sergeant Bergmann's request, Officer King, who, having assisted in shackling Mr. Gilbert's legs was leaving the cell to return to his regular duties, radioed the dispatcher to request EMS in connection with Mr. Gilbert's "possible psychotic issues." EMS was first called at 6:15 p.m. (Doc. 78 ¶¶ 64-66; Doc. 86 ¶ 19.)
In further response to Sergeant Bergmann's request for help, Officer Stuckey yelled at the clerk, Ms. Wilburn, to sound the holdover alarm, but when Ms. Wilburn appeared unable to locate the alarm, Officer Stuckey left the holdover and yelled into the hallway for help with a combative subject. The alarm was also activated, which broadcasted a looped message stating that an officer was in need of assistance in the holdover. After Officer Stuckey yelled for help, he stayed outside the holdover for some time to compose himself, and he did not return to Mr. Gilbert's cell. (Doc. 78 ¶¶ 67-69.)
A number of officers responded to the alarm and to Officer Stuckey's calls for help. Officer Mack responded to the holdover from the report writing room at central patrol. When he got to the holdover, Officer Mack observed officers struggling to control Mr. Gilbert, who was handcuffed and shackled, and crouched over the bench in his cell. Officer Mack relieved Officer DeGregorio. Upon being relieved by Officer Mack, Officer DeGregorio, feeling exhausted, left the cell and went outside to catch his breath. Officer Mack relieved Officer DeGregorio's position holding Mr. Gilbert down after Officer DeGregorio became exhausted. Officer Mack took control of Mr. Gilbert's upper left arm and attempted to prevent Mr. Gilbert from thrashing about and hitting his head against the concrete. (Doc. 78 ¶¶ 70-74; Doc. 86 ¶ 42.)
After he relieved Officer DeGregorio, Officer Mack assisted in moving Mr. Gilbert from the bench to a prone position on the floor, which was more secure and which presented less of a tripping hazard. After Mr. Gilbert was moved to the floor, Officer Opel, who had responded to the holdover from the report writing room, relieved Sergeant Bergmann, who told Opel to control Mr. Gilbert's right side so Mr. Gilbert would not bang his head on the concrete. After he was relieved by Officer Opel, Sergeant Bergmann, feeling winded from an intense struggle, stepped out of the cell and off to the side. (Doc. 78 ¶¶ 75-77.)
In addition to Officers Mack and Opel, Officers Cognasso, Lemons, and vonNida also responded to Mr. Gilbert's cell and assisted in bringing him under control. (Doc. 78 ¶¶ 78.) Officer Cognasso, who had responded from the rear desk in central patrol when he heard Officer Stuckey's plea for help, responded to find Mr. Gilbert thrashing his shackled legs back and forth, kicking the officers, and moving his body around. (Doc. 78 ¶ 79.) Officer Cognasso put his knees on the back of Mr. Gilbert's calves to prevent him from striking anyone. Officer Lemons, who had responded from the report writing room to find Mr. Gilbert struggling and kicking, assisted by placing his knee on Mr. Gilbert's leg to prevent him from kicking. Officer vonNida, who had responded from outside the holdover, assisted by holding Gilbert's arm or leg, and securing him so he could not thrash about. (Doc. 78 ¶¶ 80-82.)
While Mr. Gilbert struggled against the officers on the floor, the Officers controlled Mr. Gilbert's limbs at his shoulders, biceps, and legs and did not place their body weight on him in a manner that would compress his neck. Mr. Gilbert was trying to raise his chest up during the altercation. (Doc. 86 ¶ 26.) After struggling with officers on the ground for several minutes, Mr. Gilbert calmed down to the point where he was no longer kicking, flailing, and actively fighting against his restraints, and the Officers rolled him from his stomach onto his side. (Doc. 78 ¶¶ 84.)
Officer Cognasso stood up, and Sergeant Bergmann used his radio to check if EMS was en route and to ask the dispatcher to have EMS "step it up" so they could "get this guy [Gilbert] out of here." A nearly contemporaneous audio recording of the police dispatcher relaying Sergeant Bergmann's request to EMS shows that Bergmann's call was made at 6:26 p.m. Officer Cognasso, who heard Sergeant Bergmann's call for EMS, left the holdover to wait outside for EMS to respond. (Doc. 78 ¶¶ 86, 87.)
At some point, Mr. Gilbert's breathing appeared abnormal to the officers. After Mr. Gilbert was rolled onto his side, Officer Mack then rolled Mr. Gilbert on his back, checked for a pulse, and was able to find a pulse in Mr. Gilbert's neck. (Doc. 78 ¶ 93; Ex. E at 22:1-16.)
At some point, Mr. Gilbert stopped breathing. Officer Mack requested someone retrieve the AED. Officers vonNida and Opel went to retrieve the AED. Officer Mack also updated Sergeant Bergmann regarding Mr. Gilbert's condition, and Sergeant Bergmann radioed dispatch to upgrade the pending request for EMS to "urgent" on the grounds that Mr. Gilbert "may not be breathing." A nearly contemporaneous audio recording of the police dispatcher relaying Sergeant Bergmann's request to EMS shows that Bergmann's call was made at 6:27 p.m. Officer Mack checked Mr. Gilbert's pulse again and was unable to find a pulse. After Officer Mack was unable to find a pulse, Officers Mack and Wactor began performing chest compressions on Mr. Gilbert as he lay on his back. Officers Mack and Wactor also performed rescue breathing on Mr. Gilbert. When Officers vonNida and Opel returned with the AED, Officers vonNida and Wactor attempted to use the machine to shock Gilbert's heart, but the AED machine never signaled that Mr. Gilbert had a shockable heart rhythm. At 6:33 p.m., Sergeant Bergmann again radioed dispatch to check on the status of EMS, advised that EMS needed to "step it up," and was told by the dispatcher that EMS would be arriving "any minute." Officers Mack and Wactor performed CPR until the fire department showed up and the fire department medics relieved the officers. Eventually, an ambulance arrived and transported Mr. Gilbert to the hospital, where he was pronounced dead. (Doc. 78 ¶¶ 95-105.)
There were no video or audio recorders in the holdover area, so there is no video or audio of these events.
B. The Autopsy & Investigation
After Mr. Gilbert's death, Dr. Jane Turner conducted an autopsy for the St. Louis City Medical Examiner. Post mortem testing performed during Dr. Turner's investigation showed that Mr. Gilbert had a large concentration of methamphetamine in his system and that he had significant heart disease. (Doc. 78 ¶¶ 106, 107, 109.) The parties do not dispute that Dr. Turner's report stated that the manner of death was accidental and that the cause of death was "Arteriosclerotic Heart Disease Exacerbated by Methamphetamine and Forcible Restraint." (Doc. 67-13 at 138.) In her pathological findings, Dr. Turner reported contusions and laceration of face, contusions and abrasions of upper and lower extremities, a small soft tissue contusion of the left shoulder area, and a fractured sternum. (Doc. 67-13 at 138, Doc. 67-32 at 34:18-24.) She did not find any petechial hemorrhages. (Doc. 67-32 at 34:18-24.)
The SLMPD also completed an investigation. As part of this investigation, photographs were taken, showing blood on the scene. Each of the Officers was interviewed, and their transcribed statements were included in a final police report. Dr. Turner's autopsy report was provided to the police and was made part of the investigative report. (Doc. 78 ¶¶ 112-114.) The Officers were not disciplined. (See 67-34.)
C. The City's Training and Policies
The City's Police Department is internationally accredited by the Commission on Accreditation for Law Enforcement Agencies, Inc., or "CALEA," an international police accreditation organization, and the SLMPD's policies cross-reference relevant CALEA standards. The City's use of force policy is long and detailed, and provides, at its core, that "Officers will use the least amount of force reasonably necessary to accomplish their lawful objectives while safeguarding their own lives and the lives of others." (Doc. 78 ¶¶ 115, 116.)
Although the parties disagree over whether the City provided training or had a policy on the use of force specifically governing Mr. Gilbert's situation, it is undisputed that all of the City's officers, including the Officer Defendants, have been trained on the use of force (also known as "defensive tactics") and receive monthly refresher tests on the use of force through the SLMPD's "PASS" system. (Doc. 78 ¶ 117.)
The SLMPD's policy relating to operations in its holdovers provides, among other things, that prisoners who are under the influence of alcohol or drugs and who are violent to the point of being self-destructive should be continually observed and may be placed in restraints at a supervisor's discretion until such time as they are transported to an appropriate medical facility. The policy also provides that prisoners who attempt suicide or are potentially suicidal should be observed at all times and that officers may confine persons if it is reasonably believed they are mentally ill or under the influence of drugs and pose an imminent likelihood of harm to themselves or others. (Doc. 78 ¶¶ 118-20.)
The SLMPD does not have a specific, separate policy for restraining emotionally disturbed persons or persons with organic brain syndrome. Rather, when such persons must be restrained, such restraints must comply with the SLMPD's general use of force policy. In order to avoid the need for any individual officer to exert great force while restraining a combative subject, officers are taught to work as a team to control the subject's limbs. (Doc. 78 ¶¶ 115- 116, 118, 121, 130.) Prone restraint is not prohibited by the SLMPD. (Doc. 78 ¶ 26.)
II. Analysis
The qualified immunity doctrine "shields government official from civil damage liability for discretionary action that 'does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' " De La Rosa v. White , 852 F.3d 740, 745 (8th Cir. 2017), reh'g denied (June 5, 2017), cert. denied , --- U.S. ----, 138 S.Ct. 737, 199 L.Ed.2d 604 (2018) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ). Qualified immunity is not available "if an official 'knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [individual], or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury.' " Harlow , 457 U.S. at 815, 102 S.Ct. 2727 (quoting Wood v. Strickland , 420 U.S. 308, 322, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975) ). "The qualified immunity standard gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law." Hunter v. Bryant , 502 U.S. 224, 229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (internal quotations omitted).
In determining whether an officer is entitled to qualified immunity, the Court employs a two-step analysis that asks: (1) whether the alleged facts, when viewed in the light most favorable to the plaintiff, demonstrate that the official's conduct violated a constitutional right; and (2) whether the constitutional right being asserted is clearly established. Wallingford v. Olson , 592 F.3d 888, 892 (8th Cir. 2010) (cited cases omitted). The Court may address either question first. Boude v. City of Raymore , 855 F.3d 930, 933 (8th Cir. 2017) (citing Pearson v. Callahan , 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ). "If either question is answered in the negative, the public official is entitled to qualified immunity." Norris v. Engles , 494 F.3d 634, 637 (8th Cir. 2007) (quoted case omitted). "To avoid pretrial dismissal, a plaintiff must present facts showing the violation of a constitutional right that was clearly established at the time of defendant's act." De La Rosa , 852 F.3d at 743.
Under the Fourth Amendment, the test for determining whether excessive force was used under the first prong of the analysis is whether "the amount of force used was objectively reasonable under the particular circumstances." Small v. McCrystal , 708 F.3d 997, 1005 (8th Cir. 2013) (quoting Brown v. City of Golden Valley , 574 F.3d 491, 496 (8th Cir. 2009) ). See also Hicks v. Norwood , 640 F.3d 839, 842 (8th Cir. 2011) ("It is settled in this circuit that the Fourth Amendment's 'objective reasonableness' standard for arrestees governs excessive-force claims arising during the booking process."). The Court determines "whether a use of force was reasonable by balancing 'the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.' " McKenney v. Harrison , 635 F.3d 354, 359 (8th Cir. 2011) (quoting Graham v. Connor , 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) ).
The "[r]easonableness of a seizure is determined by the totality of the circumstances and must be judged from the viewpoint of a reasonable officer on the scene." McCoy v. City of Monticello , 342 F.3d 842, 848 (8th Cir. 2003) (citing Graham , 490 U.S. at 396-97, 109 S.Ct. 1865 ). Thus, the reasonableness of force depends on the circumstances confronting the officers, including factors such as the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officer or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. Shannon v. Koehler , 616 F.3d 855, 862 (8th Cir. 2010) (citing Graham , 490 U.S. at 396, 109 S.Ct. 1865 ). This inquiry is objective, questioning "whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation."
Graham , 490 U.S. at 397, 109 S.Ct. 1865 ; see also McCoy , 342 F.3d at 848 (reasonableness "must be judged from the viewpoint of a reasonable officer on the scene, irrespective of the officer's underlying intent or motivation.") The Court "must assess the actions of each officer 'from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight.' " Ryan v. Armstrong , 850 F.3d 419, 427 (8th Cir. 2017) (quoting Graham , 490 U.S. at 396, 109 S.Ct. 1865 ). "This calculus allows for the fact that police officers are often forced to make split-second decisions-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation." Brown , 574 F.3d at 496 (quoting Graham , 490 U.S. at 396, 109 S.Ct. 1865 ). "Once the predicate facts are established, the reasonableness of the official's conduct under the circumstances is a question of law." McKenney v. Harrison , 635 F.3d 354, 359 (8th Cir. 2011) (quoting Mann v. Yarnell, 497 F.3d 822, 825 (8th Cir. 2007) ) (internal quotation omitted).
The Court elects to address the "clearly established" qualified-immunity prong first, because it is dispositive of the case. See , e.g. , Smith v. City of Minneapolis , 754 F.3d 541, 546 (8th Cir. 2014) ; De Boise v. Taser Int'l, Inc. , 760 F.3d 892, 896 (8th Cir. 2014) (even assuming without deciding that force used was excessive in violation of Fourth Amendment rights, such rights were not clearly established at the time of the incident, thus entitling officers to summary judgment).
A. The Defendant Officers' conduct did not violate a clearly established right.
While "the defendant bears the burden of proof for this affirmative defense [of qualified immunity], the plaintiff must demonstrate that the law was clearly established." Smith v. City of Minneapolis , 754 F.3d 541, 546 (8th Cir. 2014) (citations and internal quotations omitted). The law must be clearly established at the time the incident in question took place. See Ashcroft v. al-Kidd , 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). To determine whether a right is clearly established for qualified immunity purposes "we ask whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." White v. McKinley , 519 F.3d 806, 813 (8th Cir. 2008) (quoted case and internal quotations marks omitted). In other words, the " 'contours of the clearly established right must be sufficiently clear' " such that " 'every reasonable official would have understood that what he is doing violates that right.' " De La Rosa v. White , 852 F.3d 740, 745 (quoting Mullenix v. Luna , --- U.S. ----, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) and Anderson v. Creighton , 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) ). " 'Put simply, qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.' " Id. (quoting Mullenix , 136 S.Ct. at 308 ).
"Whether the constitutional right at issue was 'clearly established' is a question of law for the court to decide." Bishop v. Glazier , 723 F.3d 957, 961 (8th Cir. 2013) (citation omitted). While a case directly on point is not required, " 'existing precedent must have placed the statutory or constitutional question beyond debate.' " De La Rosa , 852 F.3d at 745 (quoting Mullenix , 136 S.Ct. at 308 ); see also Davis v. Hall , 375 F.3d 703, 712 (8th Cir. 2004) ("Officials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines.") (quotation omitted). In fact, the Supreme Court recently reiterated that "[u]se of excessive force is an area of the law 'in which the result depends very much on the facts of each case,' and thus police officers are entitled to qualified immunity unless existing precedent 'squarely governs' the specific facts at issue." Kisela v. Hughes , --- U.S. ----, 138 S.Ct. 1148, 1153, 200 L.Ed.2d 449 (2018) (quoting Mullenix , 136 S.Ct. at 309 ).
Where there is "no controlling Eighth Circuit authority placing the question beyond debate," qualified immunity applies unless there is a " 'robust consensus of cases of persuasive authority' " demonstrating whether the particular conduct, under similar circumstances, violated clearly established law. De La Rosa , 852 F.3d at 745-46 (quoting al-Kidd , 563 U.S. at 742, 131 S.Ct. 2074 ). Moreover, when there is no controlling Eighth Circuit authority and other circuits are split on the issue, the law is not clearly established. See , e.g. , Burton v. Richmond , 370 F.3d 723, 730 (8th Cir. 2004).
In this case, Plaintiffs cannot defeat the Officers' defense of qualified immunity unless Plaintiffs are able to show that a reasonable officer would have been on notice as of December 8, 2015, that the Officers' conduct violated a clearly established right. See De Boise v. Taser Int'l, Inc. , 760 F.3d 892, 896 (8th Cir. 2014). Even assuming the Defendant Officers did not use objectively reasonable force under the first prong of the qualified immunity analysis and after a careful review of the record, the Court finds that the Officer Defendants are entitled to summary judgment because they did not violate a clearly established right. For the reasons discussed below, the Court finds controlling Eighth Circuit law does not place the question beyond debate and there is not a robust consensus of persuasive authority, as the circuits are split over the outcome in cases with similar facts. As such, the Defendant Officers are entitled to qualified immunity.
1. Preliminary Matters
Plaintiffs argue broadly that the "right to be free from asphyxiating, prone restraint was clearly established." (Doc. 79 at 8.) The Court finds that this framing of the issue for the clearly established analysis is too broad. As the Eighth Circuit recently reiterated, "we cannot 'define clearly established law at a high level of generality.' " Ehlers v. City of Rapid City , 846 F.3d 1002, 1012 (8th Cir. 2017) (quoting Mullenix , 136 S.Ct. at 308 ); see also White v. Pauly , --- U.S. ----, 137 S.Ct. 548, 552, 196 L.Ed.2d 463 (2017) (finding it again necessary to reiterate to lower courts "the longstanding principle that 'clearly established law' should not be defined 'at a high level of generality' ") (citations omitted). Instead, " '[t]he dispositive question is whether the violative nature of particular conduct is clearly established.' " Ehlers , 846 F.3d at 1012 (quoting Mullenix , 136 S.Ct. at 308 ) (emphasis in original). The Supreme Court recognized that " '[s]uch specificity is especially important in the Fourth Amendment context, where...[i]t is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts.' " Id. (quoting Mullenix , 136 S.Ct. at 308 ). Plaintiffs seem to take the position that prone restraint is never acceptable under any circumstances, regardless of the level of force that is used or other circumstances facing the officers, once a suspect is handcuffed. (See , e.g. , Doc. 78 ¶ 126; Doc. 79 at 12; Doc. 86 ¶ 102, 104.) However, that position, as will be discussed below, does not square with the pre-existing law.
Since "the clearly established law must be 'particularized' to the facts of the case," White , 137 S.Ct. at 552, in order to properly frame the issue for this Court's consideration and as a preliminary matter, the Court finds it necessary and helpful to first address some of Plaintiffs' arguments regarding the facts in this case.
a. Mr. Gilbert's Actions of Resistance
Plaintiffs argue that Mr. Gilbert posed no threat to anyone and claim an ill motive to the initially responding Defendant Officers' actions. See McCoy v. City of Monticello , 342 F.3d 842, 848 (8th Cir. 2003) (officers' underlying intent or motivation irrelevant). However, it is undisputed that the Officers were responding to Mr. Gilbert's apparent attempt to hang himself by tying an article of clothing around his cell bars and putting it around his neck. (Doc. 78 at ¶¶ 33-47.) And it is undisputed that Mr. Gilbert attempted to evade the officers when they arrived at his cell. (Id. at ¶¶ 52-53.) Under these circumstances, it was not unreasonable for the Officers to restrain Mr. Gilbert. Police officers are authorized to detain persons who may pose a danger to themselves. See Lacy v. City of Bolivar , 416 F.3d 723, 727 (8th Cir. 2005) (discussing standard under Mo. Rev. Stat. § 632.305 authorizing detention). Moreover, given Mr. Gilbert's apparent suicide attempt, the Officers had authority to restrain him. See Winters v. Adams , 254 F.3d 758, 763-64 (8th Cir. 2001) (police are authorized to stop and detain persons who appear dangerous to themselves or others as part of their "community caretaking" function). Additionally, even accepting Plaintiffs' argument that Mr. Gilbert was having a mental health crisis and posed no threat (Doc. 79 at 6-7), the Officers would still be entitled to qualified immunity. See , e.g. , Lewis v. City of W. Palm Beach , 561 F.3d 1288, 1292 (11th Cir. 2009) (affirming district court's grant of summary judgment in section 1983 case where emotionally disturbed and agitated detainee, who was hog tied in prone position and died of asphyxia, was not a danger to officers or forcefully attacking them, but was deemed by court to be a safety risk merely because of his refusal to comply with officers' simple instructions, his inability to remain calm, and his continued struggling); Giannetti v. City of Stillwater , 216 Fed. App'x 756, 758-59 (10th Cir. 2007) (finding officers' deadly force upon prone jailed detainee reasonable when detainee simply refused to put on jumpsuit).
It also is undisputed that, throughout the encounter, Mr. Gilbert thrashed, fought, kicked, and otherwise struggled with the Officers. Each and every one of the Officers, as noted above, witnessed and reacted to these acts. For example, during the initial struggle with Officer Stuckey, Officer DeGregorio, and Sergeant Bergmann, and even after Mr. Gilbert was handcuffed, he tried to stand up from a kneeling position, kicked the officers, and reared back off of the bench. While on the bench, Mr. Gilbert thrashed his head on the concrete bench with such force that he suffered a gash on his forehead. While the Officers were retrieving leg shackles, Mr. Gilbert continued to struggle over the bench with multiple Officers, including kicking. Indeed, Plaintiffs do not dispute that Officer King, who had recently arrived on the scene, had to hold Mr. Gilbert's ankles to keep him from kicking as leg shackles were being applied and that Officer Wactor also witnessed Mr. Gilbert struggling with multiple officers as he then helped apply the leg shackles.
It is undisputed that Officer Stuckey yelled for additional help from other officers to assist with a combative subject. When those Officers arrived, it is undisputed that Officer Mack observed officers struggling to control Mr. Gilbert even though he was already handcuffed and shackled and that Officer Mack took control of Mr. Gilbert's arm to prevent him from thrashing about and hitting his head. It is undisputed that, at this point, Mr. Gilbert was moved to a prone position on the floor, which was more secure, and that Officer Opel secured Mr. Gilbert's right side to ensure he would not bang his head on the concrete. It also is undisputed that the Officers who later helped also witnessed a struggle. For instance, when Officer Cognasso arrived on the scene, he witnessed Mr. Gilbert kicking his legs back and forth, kicking the officers, and moving his body around. Officer Lemons similarly witnessed Mr. Gilbert struggling and kicking, and Officer vonNida secured Mr. Gilbert so he could not thrash about.
Defendants argue these facts demonstrate Mr. Gilbert was resistant, combative, and non-compliant. Plaintiffs either wholly admit these facts or at times argue-without disputing the facts themselves-that some of these actions were not evidence of resistance or combativeness, but of "air hunger" or a struggle to breathe while being restrained. Plaintiffs point, in part, to the fact that Mr. Gilbert raised his chest up during the altercation.
The Court will take as true Plaintiffs' versions of events and assume that Mr. Gilbert's actions were innocent, that he was not ignoring commands or being violent, and that his actions were based on "air hunger." Even so assuming, however, the Court finds that it was not established as a matter of law that the Officers should have interpreted Mr. Gilbert's actions of kicking, thrashing, and otherwise fighting as "air hunger" instead of resistance. Instead, as will be discussed more below, courts in this and other circuits routinely interpret such actions as objectively reasonable evidence of resistance. See , e.g. , Boude v. City of Raymore , 855 F.3d 930, 933-34 (8th Cir. 2017) (qualified immunity does not depend on whether the individual's actions were "in fact " innocent but, rather, "the key" is whether the officers reacted reasonably to the circumstances as they appeared to the officers) (emphasis in original); Ehlers , 846 F.3d at 1011 (8th Cir. 2017) (rejecting nonviolent misdemeanor arrestee's argument that he was not resisting "because he at least appeared to be resisting"); Carpenter v. Gage , 686 F.3d 644, 650 (8th Cir. 2012) (when detainee "characterize[d] his struggles [of neither remaining still nor stopping moving while being handcuffed] merely as an effort to breathe," finding "even if [his] motive was innocent, the [officers] reasonably could have interpreted [his] actions as resistance and responded with an amount of force that was reasonable to effect the arrest"); see also Abbott v. Sangamon Cnty. , 705 F.3d 706, 712 (7th Cir. 2013) (arrestee is not subdued if he "continue[s] to resist" or "fail[s] to submit to the officer's authority"); Bornstad v. Honey Brook Twp. , 211 F. App'x 118, 120 (3d Cir. 2007) (in case involving prone resistance, finding the officers' deadly force reasonable even when there was evidence that the detainee stated he was "having trouble breathing"); Giannetti v. Stillwater , 216 Fed. App'x 756, 760, 764 (10th Cir. 2007) (finding officers' force reasonable even though the restrained detainee indicated she could not breathe and screamed that her lungs were collapsing, rejecting the plaintiff's argument that her physical struggle and kicking resulted from panic when faced with hampered breathing and possible suffocation).
Plaintiffs also point to the testimony from two inmates who were in the holdover area at the time of this incident. One inmate testified, "I didn't hear him say help, but it was like - basically like fighting." (Doc. 77-3 at 13:9-14:18.) In his initial witness statement, though, the inmate did not indicate Mr. Gilbert said this. (Doc. 67-13 at 104.) Another inmate, who Defendants assert was high on marijuana at the time, testified as follows when asked if he heard what Mr. Gilbert testified: " 'It hurt.' I heard, 'It hurts. Stop.' I heard - say 'Ah.' 'Stop.' 'It hurt.' 'Oh, if - I was hurting.' I think it could have been the officer saying 'Stop resisting' or 'Stop.' I don't know." (Doc. 77-7, 20:9-21:18). Plaintiffs argue that this testimony demonstrates Mr. Gilbert was "yelling pleas for help" and pleading "It hurts. Stop." (Doc. 86 ¶¶ 11, 13.) Even assuming Mr. Gilbert made such statements, this does not preclude summary judgment. See , e.g. , Bornstad , 211 F. App'x at 120 (officers' deadly force reasonable even when there was evidence that the prone individual was "yelling out for help"); Giannetti , 216 Fed. App'x at 760 (force reasonable even when prone detainee "moaned that 'we're killing her, that we're hurting her' ...said 'stop, you're hurting me' ...and pleaded 'please stop, oh, God, please.' ").
b. The Defendant Officers' Restraint & Cause of Death
The parties also present different theories regarding the level of force used by the Defendant Officers on various parts of Mr. Gilbert's body. Defendants argue that the Officers used the level of force necessary to restrain Mr. Gilbert as he was continually resisting and did not use asphyxiating pressure on his body. Plaintiffs argue that the Officers "held down" Mr. Gilbert using asphyxiating pressure, including on his back.
It is undisputed that the Defendant Officers applied force to varying parts of Mr. Gilbert's body. For example, Officer Stuckey grabbed Mr. Gilbert's left wrist while attempting to handcuff him. Once Mr. Gilbert was handcuffed, Officer DeGregorio grabbed Mr. Gilbert's left bicep and left wrist while Sergeant Bergmann grabbed his right arm. After being kicked in the groin by Mr. Gilbert, Officer Stuckey left and returned to doing paperwork. Once Officer King arrived, he grabbed Mr. Gilbert's ankles. It was at this point that Mr. Gilbert's legs were shackled. Officer King then left. When Officer Mack arrived to relieve Officer DeGregorio, Officer Mack took control of Mr. Gilbert's upper left arm.
It is undisputed that it was only after this point that Mr. Gilbert was moved to a prone position. (Doc. 78 ¶ 75.) After Mr. Gilbert was prone, Officer Opel controlled Mr. Gilbert's right side to protect his head from banging on the concrete, Officer Cognasso put his knees on the back of Mr. Gilbert's calves, Officer Lemons placed his knee on Mr. Gilbert's leg, and Officer vonNida held Mr. Gilbert's arm or leg so he would not thrash about. They continued to control him at his shoulders, biceps, and legs, and Plaintiffs have proffered no evidence that the Officers compressed Mr. Gilbert's neck.
Plaintiffs argue, by pointing to testimony of some of the Officers, that all of the Officers were "holding down" Mr. Gilbert with their "weight" and that at least some of the force was directed at Mr. Gilbert's back. (See , e.g. , Doc. 86 ¶¶ 14-15, 16, 33-34, 37-55.) For example, Plaintiffs point to testimony that Officer Opal "took control of the subject on the right side," that Officer vonNida "kind of held [Mr. Gilbert's] side in place," and that Officer Cognasso said that, though he could not identify which Officers, there were Officers at his upper right side and possibly a lower or middle part of his torso. (Doc. 77-2 at 137, 167; Doc. 77-11 at 20:12-19.)
Plaintiffs also rely on the expert report of Dr. Diaz in support of their argument, who opined that the restraint included "the weight of the individuals being on him" while Mr. Gilbert was prone and then stated a general proposition that when "weight of the restrainers is applied to the back, a cascade of events occur the most important of which is a mechanical impairment of breathing that leads to asphyxia." Both parties do agree that forcible restraint was one cause of death. They differ, however, in assertions as to the main cause of death. In his expert report, Dr. Diaz concluded that the main cause of death should have been forcible restraint inducing asphyxia with arteriosclerotic cardiovascular disease and amphetamine as the underlying factors. (Doc. 74-6.) He opined that pulmonary edema exhibited in the autopsy findings (fluid on the lungs) resulted from asphyxiation. In his deposition, he noted that the autopsy report showed injuries, including "to the lower extremities and up to the buttocks, and he had injuries that manifested as bleeding into the left scapular area. That's the left shoulder area." (Doc. 67-33 at 69:16-25.) However, when asked whether he could tell where Officers exerted pressure on Mr. Gilbert, Dr. Diaz testified that he could not tell. (Id. at 67-33 at 68:22-24.)
This stands in contrast to the expert opinion of Dr. Jane Turner, the forensic pathologist and medical examiner who performed Mr. Gilbert's autopsy. Dr. Turner concluded that the manner of death was accidental, further concluding that the cause of death was arteriosclerotic cardiovascular disease, exacerbated by methamphetamine and forcible restraint. Dr. Turner disagreed with Dr. Diaz by ruling out asphyxiation in her autopsy report, as she saw no evidence of asphyxiation, such as petechial hemorrhages. (Doc. 67-32 at 29:18-30:3.) Citing to literature, she concluded the large amount of amphetamine along with the forcible restraint caused Mr. Gilbert's already significantly diseased heart to go into arrhythmia, which explained the pulmonary edema. (Id. 33:13-24, 50:10-53:17.)
The Court will assume Plaintiffs' version of facts as true that at least some Officers used force at Mr. Gilbert's "sides" or torso or back or other parts of his body, and even further that the cause of death was asphyxiation. Still, the Court finds that summary judgment is not precluded and that the Officers are entitled to qualified immunity. As is discussed more below, multiple courts have found similar force used to be objectively reasonable even when applied upon various parts of the body, including the back, while the detainee is restrained in a prone position. And courts have ruled in favor of officers even when the evidence suggested death by asphyxiation. See, e.g., Pratt v. Harris Cnty. , 822 F.3d 174, 178-79 (5th Cir. 2016) (affirming summary judgment when force was used upon back of prone, handcuffed individual whose legs were restrained despite disagreement between experts over cause of death); Hill v. Carroll Cnty. , 587 F.3d 230, 232-37 (5th Cir. 2009) (restraining a resistant individual in a hog-tie for thirty minutes was not unconstitutionally excessive even when the plaintiff's medical expert testified specifically that the individual died from asphyxia, which conflicted with the main cause of death noted in the autopsy); Bornstad , 211 Fed. App'x at 121 (force used upon resistant individual who was prone in handcuffs and with feet bound did not violate the individual's right to be free from the use of excessive force even when expert concluded main cause of death was compressional asphyxia ); Dyer v. Blankenship , No. 4:07-CV-02105-AGF, 2011 WL 1226941, at *8, 15 (E.D. Mo. Mar. 30, 2011) (force objectively reasonable despite conflicting expert testimony regarding whether asphyxia was a cause of death resulting from individual in handcuffs and shackles being restrained in the prone position by officers' body weight).
c. The Restraint in Relation to Mr. Gilbert's Breathing
Plaintiffs also argue in their responses to Defendants' statement of material facts that the Officers "did not stop pushing Mr. Gilbert down until after he stopped breathing." Defendants, on the other hand, argue the testimony shows that Mr. Gilbert did not stop breathing until he was re-positioned on his side, after he calmed down and stopped resisting.
Sergeant Bergmann and Officers Cognasso, Lemons, Mack, Opel, vonNida, and Wactor all assert that while Mr. Gilbert was struggling against the officers on the floor, his breathing did not appear abnormal. (See Doc. 78 ¶ 88.) For example, Officer vonNida testified that once Mr. Gilbert stopped actively thrashing and the Officers turned him onto his side, it appeared to him that Mr. Gilbert was holding his breath. After Mr. Gilbert was turned onto his side, Officer vonNida observed Mr. Gilbert taking a deep breath and then holding it in then exhaling after receiving a sternum rub. (Doc. 67-9 at 16:9-17:13, 21:16-22:10.) Officer Opel also testified that after Mr. Gilbert was turned on his side, he seemed to be holding his breath and his breathing became shallow (Doc. 67-7 at 21:16-22:21.) Moreover, Officer Wactor testified that Mr. Gilbert's breathing was irregular once he was on his side. (Doc. 67-10 at 24:2-10.) Officer Mack similarly testified that after rolling Mr. Gilbert onto his side, he was calm, but his breathing was growing increasingly erratic. (Doc. 67-6 at 20:22-21:5.) After monitoring his breathing, Officer Mack testified that Mr. Gilbert was no longer a threat, so he removed his handcuffs and rolled him onto his back. (Doc. 67-6 at 21:2-10.) Though Mr. Gilbert's breathing was increasingly erratic, Officer Mack checked for a pulse and was able to find one. (Id. at 22:10-12.) At some point, someone rolled Mr. Gilbert onto his back. Shortly after Officer Mack was able to find a pulse, Mr. Gilbert stopped breathing, causing Officer Mack to request the AED. (Id. at 22:11-16.) (See also Doc. 78 ¶¶ 85, 88-92, 94.)
Plaintiffs admit that Officer Mack was able to find a pulse as he so testified. (Doc. 78 ¶ 93.) They, however, assert that the Officers "held Mr. Gilbert down and did not get off of him" until after Mr. Gilbert stopped breathing. (Doc. 86 ¶ 35.) In support of their argument, Plaintiffs point to the testimony of one officer, Officer Lemons, who testified, "When the resisting stopped, we stood up. I noticed that he wasn't breathing" and "I can't say what officers were doing. All I know is when he stopped breathing, we got up...[a]nd there was an officer beginning doing CPR." (Doc. 67-5, 15:9-16:18.) Saying the Officers "got up" is not the same as saying they "held Mr. Gilbert down and did not get off of him" until he stopped breathing.
Regardless, even accepting as true that Mr. Gilbert remained restrained and in a prone position until he stopped breathing, and as will be further discussed below, the Officers would still be entitled to qualified immunity for it was not clearly established that this violated a constitutional right. See , e.g. , Gunter v. Twp. of Lumberton , 535 F. App'x 144, 146, 148 (3d Cir. 2013) (force was objectively reasonable even when individual, who was restrained in handcuffs attached to leg restraints, was left by officers in prone position until he stopped breathing); Giannetti , 216 Fed. App'x at 760 (force was objectively reasonable even though officers used restrained detainee in handcuffed, prone position until to the point where she was unresponsive); Abbey v. City of Reno , No. 3:13-CV-0347-LRH-VPC, 2015 WL 13547828, at *3 (D. Nev. Mar. 30, 2015), aff'd , 690 Fed. App'x 538, 539 (9th Cir. 2017) (officers' use of force against resisting individual, who was having a mental crisis, reasonable even though individual stopped breathing soon after multiple officers released their hold on individual while he was still in prone position with feet restrained and tied to the handcuffs); Dyer , 2011 WL 1226941, at *6-7 (officers' use of asphyxiating force reasonable when individual did not appear to be breathing while prone in handcuffs and leg shackles and still being physically restrained with weight of officer on his back); Williams v. Chambers , No. 4:07-CV-01409-ERW, 2010 WL 481299, at *8 (E.D. Mo. Feb. 5, 2010) (officers' use of deadly force objectively reasonable when individual became unresponsive and ashen while still being physically restrained in prone position by officers' body weight).
2. The Pre-Existing Law: The law did not clearly establish in December 2015 that the use of prone restraint in this context constituted excessive force.
With this factual predicate in mind, the question before the Court, then, is whether the Defendant Officers violated clearly established law in using force on different parts of Mr. Gilbert's body in the manner in which they did while Mr. Gilbert was apparently resisting and bound and shackled in a prone position, resulting in asphyxiation. The Court finds that excessive force cases involving the use of prone restraint did not provide the Defendant Officers with fair and clear warning that positioning and restraining Mr. Gilbert in the prone position as he continually resisted was unconstitutionally excessive as of December 2015. Therefore, the Officers are entitled to qualified immunity.
a. Pre-Prone Restraint
The Court will first address the Officers who used force on Mr. Gilbert while he was kneeling across the concrete bench inside the cell. Plaintiffs argue broadly in their Memorandum in Opposition to this Motion that the "right to be free from asphyxiating, prone restraint was clearly established." (Doc. 79 at 8.) They continue to focus on the positioning of Mr. Gilbert, further arguing, by pointing to case law, that "holding down a handcuffed, prone subject is dangerous and unreasonable," "putting substantial or significant pressure on a suspect's back while that suspect is in a face-down prone position after being subdued and/or incapacitated constitutes excessive force," and "putting pressure on a handcuffed individual in the prone position amounts to excessive force." (Doc. 79, 9-10.) As set forth above, it is undisputed that some of the Officers only used the allegedly excessive force before Mr. Gilbert was in the prone position, namely Officers Stuckey, DeGregorio, King, and Sergeant Bergmann. Plaintiffs do not dispute that Mr. Gilbert was moved to a prone position on the ground after some of the Officers had stopped using restraint and left. (Doc. 78 ¶ 75.) Officer Stuckey left the cell after being kicked in his groin area, which was after Mr. Gilbert was handcuffed but before his legs were shackled. Officer DeGregorio was relieved by Officer Mack before Mr. Gilbert was moved into a prone position, and Officer King left to return to his regular duties right after Mr. Gilbert's legs were shackled. Importantly, all of these actions occurred while Mr. Gilbert was not in the prone position. Instead it is undisputed that, at this time, he was kneeling over a bench.
To be prone means lying flat or lying face downwards on one's belly. Oxford English Dictionary Online, http://www.oed.com/view/Entry/152519, https://en.oxforddictionaries.com/definition/prone (last visited November 12, 2018). One of Plaintiffs' own exhibits includes drawings of detained individuals in the prone position as lying completely flat. (Doc. 78-11, at 3, 5.) Mr. Gilbert was not lying flat while kneeling over the bench.
Plaintiffs have not pointed the Court to cases that support an argument that it violates an individual's clearly established right when such force (even assuming some force was upon the back) is applied to a non-prone, kneeling detainee. Rather, the law allows officers to hold down a resistant subject, even using their body weight, in order to gain control. See , e.g. , Ryan v. Armstrong , 850 F.3d 419, 427-28 (affirming summary judgment when multiple officers restrained prone, resisting detainee in jail cell using body weight, including weight on the detainee's back); see also Risdal v. Nixon , 589 Fed. App'x 801, 803 (8th Cir. 2014) (concluding the force used to handcuff and restrain inmate was objectively reasonable, in light of his aggressive behavior, when individual was brought "under control by taking him to the ground, and during the struggle, [he] struck his head on a chair"). In fact, the Eighth Circuit has upheld the use of arguably severe force when officers are attempting to restrain a resisting subject. See , e.g. , De Boise v. Taser Int'l, Inc. , 760 F.3d 892, 897-98 (8th Cir. 2014) ("emotionally disturbed" individual's right to be free from multiple, ultimately deadly, tasings when he assumed a fighting stance as officers approached him and continued to resist arrest not clearly established); Winters v. Adams , 254 F.3d 758, 761, 763-65 (8th Cir. 2001) (rejecting argument that officers should have just "walk[ed] away" from individual who was "acting strangely," agitated, under the influence of methamphetamine, and otherwise "erratically behaving" in light of "community caretaking functions of police officers," and instead holding that district court erred in finding excessive force when officer punched individual in the eye who continued to resist); Mann v. Yarnell , 497 F.3d 822, 824, 826 (8th Cir. 2007) (when arrestee refused police orders to lie flat on his stomach, twisted, and otherwise continued to resist, finding it was reasonable to apply force against arrestee's neck, use hold maneuver on legs, and use a canine to bite arrestee to bring non-compliant arrestee under control). These Officers, therefore, are entitled to qualified immunity.
b. Prone restraint.
Moreover, for the reasons discussed below, the result does not change for the remaining Officers, Wactor, Mack, Opel, Cognasso, Lemons, and vonNida. For example, Plaintiffs point to testimony indicating that Officers Wactor, Lemons, and Cognasso restrained Mr. Gilbert's legs. (Doc. 86 ¶¶ 45, 51, 55.) However, Plaintiffs do not point to any law demonstrating that the mere act of shackling an individual's legs while in the prone position violates a clearly established right. Moreover, even if the testimony that some Officers were restraining Mr. Gilbert's sides, biceps or shoulders, or were at his torso area indicate that some Officers applied force to Mr. Gilbert's back while in the prone position, there is no robust consensus of persuasive authority that the use of force under the circumstances of this case violated a clearly established right. Courts have found that it is reasonable to hold down various parts of an individual's body, including the back and torso areas, even when the individual is prone. See , e.g. , Williams , 2010 WL 481299, at *13 (lying on torso of handcuffed, prone individual "does not make the force unreasonable, considering the initial struggle and [the individual's] continued resistance"); Dyer , 2011 WL 1226941, at *15 (straddling back of restrained, prone individual "does not make the force unreasonable considering [the officers' initial struggle [with the individual]" and the individual's continued active resistance); Pratt , 822 F.3d at 178-79 (5th Cir. 2016) (affirming summary judgment when force was used upon back of prone, handcuffed individual whose legs were restrained); Bussey-Morice v. Kennedy , 657 Fed. App'x 909, 911 (11th Cir. 2016) (officers entitled to qualified immunity when they pinned, held down, or used pressure-point techniques on various parts individual's body, including the upper torso); Giannetti , 216 Fed. App'x at 760 (force used against prone, handcuffed, and resisting misdemeanor detainee was reasonable when several officers "held her legs, arms, head, and back down" put hands on her shoulder blades, restrained her legs in a figure-four restraint, placed a knee toward her middle back, placed a calf across her head, and placed a knee on her shoulder); Wagner v. Bay City , 227 F.3d 316, 319 (5th Cir. 2000) (force used was reasonable even when there was testimony that an officer put his shin across a handcuffed and prone individual's back and that another officer observed two other officers "on top of" the restrained individual).
The Court will now turn to a more detailed discussion of the cases relied upon by the parties.
c. The Eighth Circuit has found the use of prone restraint to control a non-compliant, resistant subject to be reasonable.
The Eighth Circuit recently held-in a case with factual similarities to this case and relied upon by Defendants-that the simultaneous placing of body weight by multiple officers on a restrained, prone individual inside of a small jail cell which results in death does not amount to excessive force. Ryan v. Armstrong , 850 F.3d 419, 427 (8th Cir. 2017). In that case, the Eighth Circuit specifically ruled on whether "the placing of body weight on