"A “Disturbing Trend” in Qualified Immunity Doctrine"

42 U.S.C. § 1983, commonly referred to as “section 1983,” permits citizens to file a civil suit when a state officer violates clearly-established law and violates the plaintiff’s constitutional rights. Every year, the Supreme Court receives numerous petitions for certiorari on Fourth Amendment “excessive force” claims, ranging from simple encounters with law enforcement officers to unjustified police shootings.

When a victim brings a Fourth Amendment lawsuit against a police officer, the officer will argue that he is protected by qualified immunity, which shields government officials from civil damages as long as the officer’s conduct did not violate clearly-established constitutional or statutory law. If granted, the officer wins the case on summary judgment; if denied, the plaintiff’s case moves forward to be tried by a jury. Out of the thousands of excessive force petitions that reach the Court, very few are granted cert and even fewer prompt a written dissent to the Court’s denial of cert.

However, earlier this year, Justice Sotomayor (joined by Justice Ginsburg) dissented in the Court’s decision to deny cert in Salazar-Limon v. Houston.[1] In Salazar-Limon, Ricardo Salazar-Limon sued police officer Chris Thompson after Thompson shot him in the back during a traffic stop. Salazar-Limon, who was unarmed at the time, claimed that he was simply walking towards his car when Thompson shot him in the back, rendering him permanently paralyzed. Thompson, on the other hand, claimed that he fired because he saw Salazar-Limon reaching for his waistband after he had pushed Thompson into the street. Despite Salazar-Limon’s testimony, the Fifth Circuit granted qualified immunity to Thompson. Salazar-Limon petitioned the U.S. Supreme Court for cert.

The Court denied cert: in the Court’s view, no reasonable jury could deny qualified immunity, because although Salazar-Limon told a completely different version of the facts, he didn’t explicitly state that he wasn’t reaching for his waistband. Therefore, no reasonable juror could possibly think that the officer was in the wrong for shooting Salazar-Limon.

Only two Justices dissented from this denial of cert: Justice Sotomayor, joined by Justice Ginsburg. The dissent decried the Court’s “disturbing trend” of crediting police officers’ stories over those of their victims in police brutality cases. In particular, the dissent calls out the Court for inverting the summary judgment standard: rather than taking all of the facts in the light most favorable to the plaintiff (which would have entailed taking Salazar-Limon’s story as true, and then determining whether the story violated clearly established Constitutional law), the Court instead credited the officer’s account. By looking to see whether Salazar-Limon denied reaching for his waistband, the Court implicitly accepted Thompson’s account of the encounter as true, or at least, more credible than Salazar-Limon’s. Doing so, Justice Sotomayor noted, adds to “the increased frequency of incidents in which [police allege that] unarmed men . . . reach empty waistbands when facing armed officers.”[2] Once again, she noted, the Court had accepted officer Thompson’s arguably implausible testimony as implicitly more credible than that of the actual unarmed citizen.

The move was not out of character for Justice Sotomayor, who has something of a history when it comes to ardently defending citizens’ Fourth Amendment rights. In United States v. Jones,[3] she concurred separately in the judgment to express her concerns regarding the compatibility of the Court’s Fourth Amendment jurisprudence with modern technology and expectations of privacy. In Heien v. North Carolina,[4] after eight Supreme Court Justices ruled that a police officer’s traffic stop for a having only one brake light—which is not illegal in North Carolina—was “reasonable,” Justice Sotomayor argued that the singular brake light was just a pretext to stop an innocent driver, and asked “why an innocent citizen should be made to shoulder the burden of being seized whenever the law may be subject to an interpretive question.”[5] And in Utah v. Strieff,[6] which concerned evidence seized during an illegal stop, Justice Sotomayor’s dissent emphasized her concern that, “by legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time . . . it implies that you are not a citizen of democracy but the subject of a carceral state, just waiting to be catalogued.”[7]

Justice Sotomayor has also dissented in a case specifically related to a police shooting. In Mullenix v. Luna,[8] the Court held that officer Chadrin Mullenix was entitled to qualified immunity from civil damages. Mullenix had set out spike strips designed to stop the car of a fleeing suspect, Israel Leija Jr., who was being chased down the highway by police. Despite orders not to shoot at Leija (which Mullenix claimed he never heard), Mullenix stood on an overpass over the highway and fired six shots into Leija’s car as it drove down the road, killing Leija.

Justice Sotomayor dissented from the Court’s grant of qualified immunity, noting that Mullenix fired “six rounds in the dark at a car traveling 85 miles per hour,” without any training in the tactic, against his superior officer’s orders, seconds before the car would have hit spike strips that had been deployed specifically to stop it.[9] Analyzing the facts, Justice Sotomayor determined that there was no government interest that justified shooting at the car rather than waiting for Leija to run over the spikes. She also noted that Mullenix, upon first confronting his superior officer after the shooting, asked, “how’s that for proactive,” apparently referencing an earlier comment he had received in a counseling session.[10] These comments, Justice Sotomayor stated, while irrelevant to the Court’s decision, seem to be “revealing of the culture [the] Court’s decision supports when it calls it reasonable—or even reasonably reasonable—to use deadly force for no discernible gain and over a supervisor’s express orders to ‘stand by.’”[11] Finally, she criticized the Court for “sanctioning a ‘shoot first, think later’ approach to policing”[12]—the approach that the Court arguably sanctioned once again in 2017, when it denied cert in Salazar-Limon.

It is highly unusual for judges to deny qualified immunity to police officers, and even more so for a Justice to point out the clear implications of the Court’s propensity to always grant police officers the benefit of the doubt. One has to wonder whether Justice Sotomayor would have sided with the majority in Scott v. Harris,[13] the infamous “police chase summary judgment” case that most law students learn in first-year civil procedure—or whether she would have sided with Justice Stevens, the Court’s lone dissenter in that case.

It is unlikely that the Supreme Court’s trends regarding police shootings and qualified immunity will change anytime soon. Still, it is notable that Justice Sotomayor appears to have taken a consistent stand—and she may not be completely alone anymore. Over a year after Mullenix, when Justice Sotomayor dissented in Salazar-Limon, Justice Ginsburg joined her as well. This representation is important on the Court: while it’s unlikely that the Court will majorly walk-back its qualified immunity doctrine anytime soon, the protective power of § 1983 threatens to be swallowed by the enormity of the Court’s qualified immunity doctrine. It’s also important in light of a disturbing recent bill, proposed and co-sponsored by 15 House Republicans, which would shield police from virtually any civil liability – even in “cases of egregious misconduct.”[14] While unlikely to pass, the bill would allow police to commit felonies or crimes of violence against citizens, while shielding officers from all liability.

The bill is unlikely to pass. But the fact that it’s even on the table indicates how important it is that the Supreme Court enforce limits on police authority, rather than tacitly signaling to Congress that it’s willing to take an officer at his word in every situation.

[1] 137 S. Ct. 1277 (2017).

[2] Id. at 1282 n.2 (Sotomayor, J., dissenting).

[3] 565 U.S. 400, 413–31 (2012) (Sotomayor, J., concurring).

[4] 135 S. Ct. 530, 542–47 (2014) (Sotomayor, J., dissenting).

[5] Heien, 135 S. Ct. at 546.

[6] 136 S. Ct. 2056 (2016).

[7] Id. at 2070–71.

[8] 136 S. Ct. 305, 313–16 (2015) (Sotomayor, J., dissenting).

[9] Id. at 313.

[10] Id. at 316.

[11] Id.

[12] Id.

[13] 550 U.S. 372 (2007).

[14] See Radley Balko, “A new GOP bill would make it virtually impossible to sue the police,” The Washington Post, available at https://www.washingtonpost.com/news/the-watch/wp/2017/05/24/a-new-gop-bill-would-make-it-virtually-impossible-to-sue-the-police/?utm_term=.9082ba335233

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Kaitlyn Gerber is a 2L at Harvard Law School interested in criminal justice, forensic reform, and indigent defense. At HLS, she she is a student attorney at the Prison Legal Assistance Project, a research assistant in the Harvard Access to Justice Lab, and a board member of the American Constitution Society. As a 1L, she interned at the Capital Habeas Unit of the Federal Defender for the Eastern District of Pennsylvania; pior to law school, she worked in a cancer biology research lab at the Dana Farber Cancer Institute. Kaitlyn received her B.A. in Biology/Biochemistry from Carleton College.

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