We Have A Right To Breathe, Your Honor

“I can’t breathe.”

That was what Eric Garner said, and what George Floyd said, and what many more Americans have said when seized and restrained by police.

This is one of the many way police brutality harms our communities and causes them permanent loss. And Restore The Fourth was created to fight governmental intrusion on our bodies and our lives. The quickest way to do that is to end the incessant and reckless claim of “qualified immunity” at the federal level. If police cannot even respect our lives, they’re unlikely to respect our property and privacy.

Restore The Fourth has just filed a brief asking the Supreme Court to review the decision in Lombardo v. City of St. Louis. In this case, Mr. Nicholas Gilbert was arrested on “suspicion of trespassing and occupying a condemned building and for failing to appear in court for an outstanding traffic ticket.” After being booked into a cell, Mr. Gilbert began “waving his hands in the air, rattling the bars of his cell, throwing his shoe, bobbing up and down,” and apparently trying to kill himself. Officers entered his cell and tried to subdue him, shackling his limbs, and, according to one officer’s testimony, putting pressure on the “lower or middle part of his torso.” During this, Mr. Gilbert thrashed around, hurting his head; after “fifteen minutes of struggle in the prone position,” Mr. Gilbert died.

For needing shelter, and for the meaningless crime of “failure to appear,” he paid with his life. Now the question is whether US law will permit the officers in question to be held accountable. Restore The Fourth argues that the answer should be, Yes.

The Eighth Circuit found that the “Officers could have reasonably interpreted” Mr. Gilbert’s struggling in an “attempt to breathe and an attempt to tell the Officers that they were hurting him […] as ongoing resistance”, justifying their use of force, and enabling the Officers to use “qualified immunity” to avoid having them be liable.

The brief submitted by the Officers’ counsel argues that Mr. Gilbert was suicidal, violent, overweight and had heart disease and drugs in his system, and that officers used only “non-lethal physical force” in a “rapidly evolving emergency situation requiring [a] split-second reaction.” Therefore, they argue, there was no Fourth Amendment violation, that qualified immunity was reasonably awarded, and that those who argue otherwise and who note, most uncivilly, similarities to other Black men killed while restrained by police like Mr. Garner or Mr. Floyd, are engaging in “agitprop.”

Our brief argues that a proper originalist understanding of Fourth Amendment rests on an understanding of the common law familiar to the Founders; and that the common law, at least as expressed in Blackstone, necessitates that “Officers may not impose any hardships on pre-trial prisoners beyond those absolutely requisite for confinement only.” In Rex v. Huggins (1790), for example, a jailer was held liable for the death of a prisoner whom he had intentionally placed in an unhealthful space located over a sewer: “If a prisoner by duress of the gaoler [jailer] comes to an untimely end, it is murder. It is not necessary, to make it duress, that there should be actual strokes or wounds.” Rather, “[i]f a man die[s] in prison” and “the [coroner’s] inquisition” finds the jailer’s care brought “the person . . . nearer to death,” it is a “felony.” Apparently, even in 1790, courts were capable of recognizing that “[a] prisoner is not to be punished in gaol [jail], but to be kept safely.”

An analysis of the Fourth Amendment’s original public meaning points us here in the direction of a standard higher than the Eighth Circuit has admitted. We hope that the Supreme Court’s newest Justice will join the other originalist Justices, in recognizing that Mr. Gilbert’s Fourth Amendment rights were indeed violated, in a way so clearly established that the Founders would have had no difficulty recognizing it. That will bring all of us towards real justice.

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