November 18, 2017

The penalty for drunk driving is not getting shot in the back. Nor is this the penalty for walking away from a police officer. Nevertheless, a cop shot Ricardo Salazar-Limon, causing him “crippling injuries,” as he tried to walk away from a drunk driving arrest. Salazar-Limon was unarmed.

The Supreme Court announced on Monday denied justice to Mr. Salazar-Limon and ruled in favor of a police officer who shot him in the back for walking away from a drunk driving arrest.  A lower court had earlier ruled that Salazar-Limon will not even receive a full trial will stand as a result because the Supreme Court decided not to hear the case.

Salazar-Limon v. City of Houston turns upon a very real dispute over just how an officer decided that shooting an unarmed man in the back was the correct course of action. As Justice Sonia Sotomayor explains, the cop pulled Salazar-Limon over while Salazar-Limon was driving drunk. Eventually, the officer tried to put Salazar-Limon in handcuffs, but the drunk driver struggled free and started to walk back to his truck. That’s where the two men’s stories significantly diverge.

“According to Salazar-Limon,” Sotomayor writes, the cop “shot him ‘immediately’ — at most, within ‘seconds’” after commanding him to stop walking. The officer, by contrast, claims that “Salazar-Limon raised his hands toward his waistband — as if for a weapon” shortly before the officer pulled the trigger.

It’s not at all clear which one of these men is telling the truth (though Sotomayor rather archly notes in a footnote that “some commentators have observed the increasing frequency of incidents in which unarmed men allegedly reach for empty waistbands when facing armed officers.” But, the fact that the stories of the two people contradict each other shoul entitle Salazar-Limon to a full trial to determine what happened. This is a fairly basic legal concept taught to every first-year law student.

When there is “no genuine dispute as to any material fact” in a civil case, a judge can bypass the jury and award victory to the party that is entitled to it as a matter of law — a process known as “summary judgment.” But when a genuine dispute does exist, summary judgment is inappropriate.

Salazar-Limon’s version of events is clearly inconsistent with the officer’s. Nevertheless, the lower courts still issued a summary judgment against Salazar-Limon, claiming there is no real dispute in this case because, in Sotomayor’s words, “Salazar-Limon never explicitly stated, ‘I did not reach for my waistband.’”

Meanwhile, in an opinion explaining why he thinks that the Supreme Court should not hear this case, Justice Samuel Alito defends the lower courts’ reasoning, claiming that “whether or not one agrees with the grant of summary judgment in favor of Officer Thompson, it is clear that the lower courts acted responsibly and attempted faithfully to apply the correct legal rule to what is at best a marginal set of facts.”

But the lower courts did not act faithfully to the correct legal rule in this case. Again, as Sotomayor notes, “This is not a difficult case. When a police officer claims that the victim of the use of force took some act that would have justified that force, and the victim claims he did not, – inconsistency of claims – summary judgment is improper.”

Salazar-Limon’s statement that the cop “shot him ‘immediately’” should suffice to overcome summary judgment. After all, there is no magic words requirement under the law’s summary judgment standard. Salazar-Limon’s failure to use the specific words “I did not reach for my waistband” are, perhaps, a sign that he needs better lawyers. But they do not justify a holding that there is “no genuine dispute” in this case.

It should be noted — and, indeed, Alito makes places a great deal of weight on this fact in his own opinion — that the Court typically does not “grant review where the thrust of the claim is that a lower court simply erred in applying a settled rule of law to the facts of a particular case.” But Sotomayor’s opinion cites five cases where the Court has broken with this practice to side with cops accused of wrongful use of force.

The Court, in other words, appears to be applying a double standard. A majority of the justices are willing to step out of their usual role to protect cops caught up by a dubious lower court decision, but they are unwilling to do the same favor for a person shot by a cop like Mr. Salazar-Limon. (In other words, when it’s a member of the state’s army that is in the wrong, the Supreme Court changes its rules to extricate them.)

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