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Supreme Court Revives An Excessive Force Case; Thomas Rails Against Marijuana Laws

The justices of the U.S. Supreme Court
The justices of the U.S. Supreme Court

The U.S. Supreme Court on Monday sent a claim of excessive force back to the lower courts for re-examination: The case involved the death of a prisoner held for 15 minutes in a face-down prone position with hands and feet shackled.

The Federal Court of Appeals for the Eighth Circuit appeared to say that because the prisoner was resisting, his claim was per se invalid. But the Supreme Court, in an unsigned opinion, sent the case back to the lower court for further findings.

The case arose from the arrest of Nicholas Gilbert, a homeless man who died in custody after being arrested in 2015 for trespassing in a condemned building and failing to appear in court for a traffic ticket. According to the facts recited by the Supreme Court, Gilbert was placed in a holding cell where an officer saw him tie a piece of clothing around the bars of his cell and put it around his neck, in an apparent attempt to hang himself.

Three officers entered the cell and brought Gilbert, who was 5-foot-3 and 160 pounds, down to a kneeling position over a concrete bench, and shackled his arms behind his back. When he continued to struggle, kicking one officer in the groin, two officers shackled his legs together. Soon more help arrived, and six officers forced Gilbert, who was now handcuffed and in leg irons, to a prone position, face down, on to the floor, with all his limbs down, too.

As the struggling Gilbert pleaded with them to stop, at least one of the officers placed pressure on his back for 15 minutes until Gilbert stopped moving. When the officers rolled Gilbert on to his side and then his back, they found no pulse, and then performed CPR, but Gilbert was dead.

His parents sued, alleging that the police had used excessive force, but the Eighth Circuit ruled in favor of the police, summarily tossing out the suit, and declaring, in essence, that because the prisoner continued to resist, the law enforcement officers acted reasonably.

Gilbert's parents appealed to the Supreme Court, and on Monday the court sent the case back to the court of appeals. It declared that the lower court, instead of considering the facts of Gilbert's case, appeared to impermissibly use an automatic legal rule to decide against him.

In particular, the high court cited the fact that the prisoner was handcuffed and shackled, and that the officers placed pressure on Gilberts back, even though St. Louis instructs its officers that pressing down on the back of a prone subject can cause suffocation. The court also cited evidence in the record pointing to "well known police guidance recommending that officers get a subject off his stomach as soon as he is handcuffed because of that risk." The court also pointed to further guidance that "indicates that the struggles of a prone suspect may be due to oxygen deficiency, rather than a desire to disobey officers' commands."

The court went on to say that it was expressing no view as to whether the officers had used excessive force. Instead the court instructed the Eighth Circuit to reconsider the case in light of these facts, instead of applying an automatic rule that would render such factors "insignificant."

Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, dissented. In their view, the lower court "applied the correct legal standard and made a judgment call on a sensitive question." If the court disagrees, they said, the justices should "roll up our sleeves" and decide whether the facts in the case justified a trial, or not.

Georgetown law professor Paul Butler, a former prosecutor and criminal law specialist, said the decision is unlikely to provoke any major change in the law, but it does seem to be cognizant of lessons learned from the George Floyd case and others like it.

The Derek Chauvin trial "was a tutorial" about the consequences of holding down a struggling suspect, Butler said in an interview. "The public reaction [to doing that] is very likely to be different now than it was two years ago."

Court refuses to take up a marijuana case

Also on Monday, the court declined to take up a case brought by the owners of a marijuana dispensary in Colorado, where the sale of marijuana is legal. The dispensary owners objected to a federal tax rule that treats them differently from other business owners because dispensing marijuana products is still illegal under federal law. Illegal, but under congressional riders, not enforceable per se.

The result, observed Justice Thomas in a five-page statement, is that, as the dispensary owners recently discovered, they were not able to deduct most ordinary business expenses from income for purposes of paying federal taxes.

Indeed, Thomas's statement was a broadside against the current state of affairs in which marijuana possession is legal in a majority of the states, and though a 16-year-old Supreme Court precedent upheld a comprehensive federal law that made marijuana an illegal and controlled substance everywhere, today dispensaries are explicitly tolerated under federal law.

That broad federal scheme, said Thomas, may have made sense 16 years ago when the court held that it was "necessary and proper" to avoid a "gaping hole" in Congress' "closed regulatory system."

But today, said Thomas, the system has more holes than Swiss cheese. Unlike the comprehensive federal system 16 years ago, he added, the current approach "is a half-in, half-out-regime that simultaneously tolerates and forbids local use of marijuana. This contradictory and unstable state of affairs strains basic principles of federalism and conceal traps for the unwary."

Not only did the petitioners in this case find themselves trapped between federal and state tax law, so too do marijuana businesses that operate entirely in cash, because federal law bars most banks from accepting their deposits or providing other bank services. But if a marijuana dispensary hires an armed guard because of the danger of having large amounts of cash on hand, the dispensary owners and guards, said Thomas, "might run afoul of a federal law that imposes harsh penalties for using a firearm in furtherance of a drug trafficking crime."

"I could go on," wrote Thomas, but "suffice to say, the federal government's current approach to marijuana bears little resemblance to the watertight nationwide prohibition" that the court found necessary to justify a blanket ban on marijuana 16 years ago. "If the government is now content to allow states to act 'as laboratories' and try novel social and economic experiments, then it might no longer have authority to intrude on the states' core police powers to define criminal law and to protect the health, safety and welfare of their citizens."

No other justice joined Thomas' statement, but it was obviously meant as food for thought.

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