Five years before George Floyd died of “asphyxia-restraint” on a Minneapolis street, 27-year-old Nicholas Gilbert died in a St. Louis police holdover cell with six officers on top of him. He was handcuffed with his legs shackled while gasping: “It hurts. Stop.”
Three years before Breonna Taylor was killed by police in a flawed “no-knock” raid in Louisville, Ky., a St. Louis police SWAT team killed Don Ray Clark, a 63-year-old Army veteran known as “Pops” in his Dutchtown neighborhood. The SWAT team of 17 officers, acting on a no-knock warrant based on sketchy evidence, broke down the door and tossed a flash bang into the front room where Clark was sleeping. Police opened fire, and Clark, who never had been charged with a crime, was shot nine times by officer Nicholas Manasco.
Floyd’s and Taylor’s deaths were huge news events that brought worldwide attention to police killings. Gilbert’s and Clark’s deaths got passing attention. There were no national stories or protests in the streets. But their deaths highlight both the banality of and lack of accountability for such police actions.
Death from “asphyxia-restraint” and no-knock raids are leading causes of police killings nationwide and in St. Louis. Across the nation, 134 people have died from “asphyxia-restraint” in the past 10 years, and 94 people died during no-knock raids from 2010 to 2016.
Now the families of Gilbert and Clark have brought attention to their loved ones’ killings by suing St. Louis and its police officers for violating their civil rights.
The suit filed by Jody Lombardo, Gilbert’s mother, has taken on national significance because the U.S. Supreme Court took notice in a surprising June opinion that could eventually make it harder for police nationwide to dodge accountability.
Until now, there has been a disconnect between the city’s legal position on prone restraint and the public statements of its mayors. The City of St. Louis has continued to argue in court that its officers did nothing wrong, even as Mayor Tishaura Jones and her predecessor Lyda Krewson criticized Floyd’s murder and advocated police reform.
But when the mayor’s chief of staff, Jared Boyd, was asked about this disconnect in an interview Sept. 7, he said the mayor is taking steps to reconsider the city’s legal position. The mayor is appointing a new city counselor this week to review the city’s legal position in the Gilbert case and other police abuse cases. Boyd said there would be less consideration of the financial loss a case might mean for the city.
“The new city counselor is going to be given a mandate to reconsider what winning looks like. It’s not to say we shouldn’t be cognizant of city resources, but that can’t be the only thing,” Boyd said.
The change is part of a larger reform. The mayor is proposing an Office of Public Accountability to put civilians with subpoena power in charge of police misconduct investigations, Boyd said.
‘It hurts. Stop.’
Just before Christmas 2015, police found Gilbert in an abandoned home and discovered he had failed to appear in court on a traffic violation. They arrested him. In the holdover cell, Gilbert seemed to be putting something around his neck. Fearing a suicide attempt, officers piled into the 7-by-9 foot cell and were met with a struggle from the 5-foot-3, 160-pound 27-year-old. They handcuffed him, manacled his legs and then pushed him into the floor.
Gilbert was trying to lift himself up and was yelling pleas for help, according to the court record.
“It hurts. Stop.” Those were his last statements. After 15 minutes, during which six officers weighing a combined 1300 pounds were on top of him, he stopped breathing, and officers couldn’t find a pulse.
An autopsy found a fractured sternum and contusions and abrasions on his shoulders and upper body. A medical report said that the “cause of death was forcible restraint inducing asphyxia,” while methamphetamine and heart disease were “underlying factors.”
The Gilbert case highlights two of the biggest roadblocks to police accountability: “objective reasonableness” and “qualified immunity.” Objective reasonableness bars judges and juries from second-guessing the officer on the scene. Qualified immunity protects an officer from being held accountable for illegal practices if courts have not yet clearly declared them illegal.
The two doctrines together give officers across the country the benefit of the doubt in cases of police abuse.
St. Louis argues both doctrines should protect the officers involved in Gilbert’s killing.
In provocative language in the city’s legal brief last year, Deputy City Counselor Robert Dierker called Gilbert’s mother’s arguments to the Supreme Court “agitprop” designed “to use published reports regarding the death of George Floyd as a cudgel to try to browbeat this Court into reviewing a case that is a straightforward application of basic Fourth Amendment principles. The only things in common between this case and the reports regarding George Floyd are drug use and heart disease.”
But the Supreme Court didn’t see it that way. In an unexpected June opinion, it told the 8th Circuit U.S. Court of Appeals in St. Louis to reconsider. The Supreme Court cited “well-known police guidance recommending that officers get a subject off his stomach as soon as he is handcuffed” because of the risk of suffocation. The court stressed that a “careful, context-specific analysis (is) required by this Court’s excessive force precedent.”
Significantly, Chief Justice John Roberts abandoned the position he had taken in previous police abuse cases. He, along with Justices Brett Kavanaugh and Amy Coney Barrett, joined the three liberals in saying cases of prone restraint needed more court scrutiny.
In a court filing last month in the federal appeals court in St. Louis, Kevin Carnie Jr., Lombardo's lawyer, pointed to multiple federal appeals courts that have ruled that the law against putting force on a bound, prone prisoner has been “clearly established” and therefore should not allow officers to escape through the qualified immunity loophole.
Dierker’s response for the city was that the Supreme Court had actually “found no fault” with the result of the 8th Circuit decision, even though it had sent it back to the appeals court with an opinion expressing disagreement. Dierker said the appeals court shouldn’t spend any more time on arguments before it “put(s) and end to this case.”
The 8th Circuit’s final action in the Gilbert case could affect whether Floyd’s family can collect from Minneapolis police, because Minnesota is in the 8th Circuit.
Lombardo said in an interview that the only difference between her son’s death and Floyd’s was that St. Louis police “weren’t videoed.”
She said the police smeared her son’s name. “Nick was a happy young man and full of life. He was funny and a jokester. His little sister, 10 years younger, struggles every day about losing her brother. He was learning flooring from his dad and his uncles. They say he was homeless, but they knew my address.”
Carnie said he was glad the city is reconsidering its legal position: “My client is happy to hear that the city is taking a fresh, closer look at this case. Hopefully the city will implement a much-needed change in policy and training as a result.”
Death of family man with no record
Clark’s family and lawyers say the fatal Feb. 21, 2017, no-knock raid on Clark’s home was based on false information, as Taylor’s was in Louisville.
The no-knock warrant obtained by officer Thomas Strode was the 27th no-knock warrant of the year, all of which were approved by a judge. Many of Strode’s applications used the same boilerplate language claiming unidentified — and unverified — confidential sources said that guns and weapons were in a home and that it was too dangerous to knock on the door and execute a search warrant.
The warrant in Clark’s case portrayed the 63-year-old veteran in a way his children, Donald Ray Clark Jr. and Sherrie Clark-Torrence, didn’t recognize.
In a video about their father, they spoke of a disciplinarian who had worked in security before multiple health problems diminished his eyesight and hearing, and he required a cane for walking. Clark had recently moved into his daughter’s house so that a younger daughter, 8, could have her own bedroom. Clark went to bed about 8 each evening on a couch in the front room. Worried about crime, he put extra screws into the front door to strengthen it. Clark had never been charged with a crime.
By contrast, the no-knock warrant portrayed Clark as central to a three-home drug ring on California Avenue.
On the night of Feb. 21, while Clark slept in the front room, a line of 17 SWAT officers lined up outside, broke down the door. Officer Ronald Mueller threw a “diversionary device” into the room. It went off with a loud flash and bang, disorienting Clark. Police did not identify themselves as they piled in, the suit says.
Officer Manasco opened fire with an assault rifle, hitting Clark with a hail of nine bullets. Manasco said he was responding to fire, but the suit says Clark was unarmed. Clark fell to the floor and mumbled a few words. Now his family is suing for the violation of his civil rights.
Officer Manasco killed two other civilians, including Isaiah Hammett a few months later in another SWAT raid for which he and the city were sued. Police entered Hammett’s residence with a flash bang and fired 93 shots, hitting Hammett 24 times. In 2011, Manasco killed Carlos Boles, took pictures of the bullet-ridden body and showed them to another officer. An investigation was announced, but the Boles episode did not remove Manasco from the SWAT team. Manasco retired from the department earlier this year.
Last fall, Missouri legislators heard testimony from around the state about abuses of no-knock warrants. But the Missouri Sheriff’s Association and Missouri State Troopers Association, which have powerful voices in the legislature, said they were used so rarely that there was no need for regulation.
Five other states voted to restrict no-knock warrants in reaction to Taylor’s death in Louisville.
For further details, go to the Pulitzer Center’s website, Roadblocks to Police Accountability
