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Tuesday, April 25, 2017

Salazar-Limon and the expansion of summary judgment

On Monday, SCOTUS denied cert in Salazar-Limon v. City of Houston, a § 1983 action arising from an officer-involved shooting of an unarmed person. The Fifth Circuit granted summary judgment in favor of the officer, seeming to credit the officer's version of events over the plaintiff's version, even without video. It also touched on the "he was reaching for his waistband" defense that has become a mainstay in these cases. The case was carried over six times before cert was denied--apparently, because Justice Sotomayor was writing a dissent from denial of cert for herself and Justice Ginsburg, which prompted a concurrence in denial of cert by Justice Alito, joined by Justice Thomas. I am quoted in an Atlantic piece on the case.

The officer testified that he saw the plaintiff turn and reach for his waistband as if for a gun. The plaintiff testified that the officer yelled for him to stop as he was walking away, then shot him immediately--at most a few seconds--after the command. But the plaintiff did not explicitly deny reaching for his waistband, and for both lower courts and Justice Alito, that showed there was no dispute. That the stories told by the officer and the plaintiff contradicted one another, in other words, was not sufficient. The plaintiff had to deny the direct evidence (reaching for the waistband) and could not rely on the competing inference (if what the plaintiff said was true, he did not reach for his waistband) to get past summary judgment.  If taken seriously, this could represent a dramatic expansion of summary judgment.

Justice Alito insisted that this is not the kind of case SCOTUS reviews. Sotomayor placed this within Tolan v. Cotton, as a case of the lower court's clear misapprehension of summary judgment standards warranting summary reversal. Notably, however, Justice Alito (joined by Justice Scalia) concurred only in the judgment in Tolan, suggesting that he did not think the Court should have granted cert, but that Court practice is not to dissent from the grant of cert.

Justice Sotomayor highlights the Court's failure to intervene in this and similar cases in which summary judgment is (erroneously) granted against § 1983 plaintiffs, while frequently summarily reversing decisions denying summary judgment in favor of officers. That assymetry, she argues, ignores that the erroneous grant of summary judgment in § 1983 qualified immunity cases harms "society as a whole" as much as an erroneous denial. Tolan was a step to addressing this assymetry, but the Court has now taken a step back. In response, Justice Alito recognizes the cases reversing denial of summary judgment, then says "the dissent has not identified a single case in which we failed to grant a similar petition filed by an alleged victim of unconstitutional police conduct." But that seemed to be her point--the Court is not taking these cases (other than Tolan) and that is the problem.

Finally, Sotomayor points in a footnote to the increasing frequency with which police officers justify shootings of unarmed people by testifying that the defendant reached for his waistband. Sotomayor does not cite it, but in 2014, the Ninth Circuit, in an opinion by Alex Kozinski, held that the absence of a gun raises a reasonable competing inference to officer testimony that the plaintiff reached for his waistband. It makes "no sense whatsoever" for an unarmed person to reach for his waistband. A jury therefore could doubt that the plaintiff did this, making summary judgment inappropriate, even if the officer's testimony about reaching for the waistband is not expressly contradicted.

Posted by Howard Wasserman on April 25, 2017 at 11:03 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink


I find myself in agreement with Justice Alito that this is not the kind of case that the court typically reviews. In my view, however, that is exactly the problem. It is a problem that I have bitched about for years in other contexts. I fundamentally disagree with the notion that a case has to be a case of general importance or that the court should not take cases "for administrative reasons". Such stances have worked to undermine both the public faith in the system as well as undermine the rule of law generally. It has lead to the attitude among lower court judges that SCOTUS "can't catch them all," an attitude that has infected both liberal and conservatives judges.

So if one accepts Alito's premise then he has the better of the arguments but I think his premise (and the court's precedent) is wrong.

Posted by: Daniel | Apr 29, 2017 3:23:25 PM

What Paul said--Kozinski said the jury might believe. But it might believe there is no reason an unarmed person would reach for his waistband. Ergo, jury trial. Or the court decides that there is no precedent of a shooting of an unarmed 40-year-old man wearing purple Northwestern sweatpants with a 34" gray drawstring on a Tuesday at 3:41 p.m. and says the law is not clearly established.

But the broader point aside from the specifics of the wasiteband: Rather than figure out the reasonable inferences from competing testimony and let them stand for themselves, the lower courts identified one basic fact (the waistband) and, finding no conflict on that basic fact, allowed summary judgment, with no attention to conflicts in overall stories.

The same thing happened in reverse in Adickes--the officers did not deny being in the store, so the Court denied, summary judgment, despite the complete absence of admissible evidence they were, because they did not deny it. How far we have come.

Posted by: Howard Wasserman | Apr 26, 2017 7:03:55 AM

Asher, your analysis is proving the opposite of what you seem to be trying to prove. The moment you start talking about the "most natural inference"-- not "the only conceivable inference to anyone who isn't biased or nuts"-- that should clue you in that the case is not a summary judgment case. (Set aside that, to me, the "most natural inference" is that the guy's lawyer made a minor error in drafting his declaration.)

It's pretty detestable that this sort of gamesmanship-- "well, he didn't TECHNICALLY deny it, even if his account and the cop's are completely incompatible, so TECHNICALLY there isn't an explicit dispute, and thus I can usurp the jury's role"-- has somehow been funneled back into the American legal system when a whole lot of people did a whole lot of work over the past 75 years trying to relegate it to the dustbin of history. The whole thing smacks more of the old English forms of action than good-faith factfinding.

Posted by: Paul Thomas | Apr 26, 2017 12:52:43 AM

So first, I was pretty puzzled by Sotomayor's inference, which I take it you're endorsing. Why exactly is it impossible for the plaintiff to be warned at time 1, get shot a few seconds later at time 1 + few seconds, and reach for his waistband at some point in the interval between the two? Is it something about how long it takes to reach for one's waistband (and by "for" do we mean "towards" or "into," see below), or how long it takes to fire a shot? My only knowledge of how long these sorts of things take is derived from classic Westerns, which may be highly misleading, but I wouldn't think that reach + shot necessarily take more than a few seconds.

To me, the most natural inference from the plaintiff's testimony is that he felt he couldn't deny that he reached for his waistband; otherwise, I don't see why he wouldn't. You must at least acknowledge that in some cases that would be the only permissible inference to be drawn from an affidavit that simply didn't mention doing the things the police say in previously filed affidavits one did do that justified their shooting. (For example, the police say they saw the plaintiff carrying explosives; the plaintiff, in opposing summary judgment, just says some police saw him and then shot him.) But whether or not that's right, I don't see how his affidavit implicitly controverts theirs, even if it doesn't implicitly confirm it.

I also found that bit about denying summary judgment on the ground of the absence of the gun alone kind of crazy. I think what Kozinski is missing, for one thing, is that the question in these cases isn't so much whether someone really reached for their waistband as whether he reasonably appeared to reach for his waistband, and there are all sorts of reasons an unarmed person could reasonably *appear* to be reaching for their waistband, e.g., they were reaching for their pocket. "Reaching for" one's waistband, also, doesn't mean touching one's waistband; if a person makes a sudden movement towards their waistband, there could be all kinds of reasons for that that don't have anything to do with being armed, and I take it it's reasonable to shoot if someone reaches in a way consistent with reaching for a gun whether or not they ever quite make contact with some part of their clothing that may plausibly contain a gun. I also even doubt that the only reason one ever actually touches one's waist is to pull a gun. People adjust their pants, tuck/un-tuck their shirts, can have all kinds of reasons for reaching into their waistband. Even if it were true that people rarely reach into their waistbands for any other purpose than to pull a gun, which obviously isn't the case, I think there's a kind of logical fallacy in concluding that someone could reasonably infer a person didn't reach for their waistband because he's unarmed. If there's uncontroverted testimony, say, that someone had a winning lottery ticket, the mere rarity of the event doesn't create a genuine dispute of fact about whether it happened - that seems like a corollary of Celotex - and the fact that a person is unarmed just shows (on this hypothesis that I don't even buy) that the event the police described is rare. If it were literally true that no unarmed person ever reached for his waistband, then sure, the inference follows, but that's a ludicrous premise. Even Kozinski actually admits it's not true a couple sentences later (the jury "might believe that Cruz thought he had the gun there, or that he had a death wish, or that his pants were falling down at the worst possible moment").

Posted by: Asher Steinberg | Apr 26, 2017 12:20:53 AM

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