US Supreme Court Justice Sotomayor Refuses to Agree Police Can Do No Wrong: The Explanation of “He Reached for His Waistband” is a Depressingly Well-worn One, Trotted Out All Too Often to Justify Police Shootings

April 26, 2017

(Rewire) - In 2010, Chris Thompson, a Houston police officer, shot Ricardo Salazar-Limon in the back. Salazar-Limon remains partially paralyzed.

Salazar-Limon sued Thompson and the City of Houston, saying that the shooting was excessive force—in other words, that Thompson had no right to shoot him. The case wound its way through the courts for years.

This week, it ended up at the U.S. Supreme Court over one critical question: Can the word of a police officer defending an excessive force claim be considered an “undisputed fact” in a lawsuit, even if that account differs from their accuser?

Like a lot of cases involving police violence, there is considerable dispute between Salazar-Limon and Thompson about what happened that night in 2010.

Both parties agree as to how it all started: Thompson was operating a speed gun that evening, and he recorded Salazar-Limon’s speed as over the limit. He pulled Salazar-Limon over and asked for his license. He checked the license and found no open warrants or charges, but told Salazar-Limon to get out of his truck, as he was being detained on suspicion of driving drunk.

After that, things get muddy. Salazar-Limon and Thompson both say that they struggled, but differ on how much and how long. Thompson contended it went on for quite some time and that Salazar-Limon pushed him toward oncoming traffic. Salazar-Limon, on the other hand, characterized the encounter as brief.

Following the struggle, Salazar-Limon pulled away and started to walk back to his truck. Thompson ordered him to stop. Salazar-Limon said that Thompson then shot him within seconds. Thompson said that Salazar-Limon not only didn’t stop, but he also raised his hands to his waistband, as if he was reaching for a gun. (No gun was ever found.) Only then, according to Thompson, did he shoot Salazar-Limon.

When Salazar-Limon sued over questions of excessive force, the lower court granted summary judgment in favor of Thompson and the City of Houston. The Fifth Circuit upheld that decision. Summary judgment is designed to allow courts to decide cases prior to trial, but it can only be granted when there are no disputes over key facts. A key fact is something integral to the dispute between the parties. In other words, when two parties disagree over the foundational facts of the case, the court can’t grant summary judgment.

Here, the parties disagree over the very essence of the case: Did Thompson shoot Salazar-Limon in the back for no reason, or did he do so because he believed Salazar-Limon was reaching for his waistband and therefore possibly a gun? When this level of disagreement occurs, the court generally has to let the case go to trial so a jury can sort out which party is more credible.

On Monday, the Supreme Court refused to hear Salazar-Limon’s appeal in Salazar-Limon v. City of Houston. In concurring with the denial of certiorari, Justice Samuel Alito essentially said there was no dispute over the key facts because, although Salazar-Limon and Thompson utterly disagree on everything that happened after the very beginning of the traffic stop, Salazar-Limon didn’t utter the magic words “I didn’t reach for my waistband” in his depositions and affidavits—and therefore no disagreement exists.

It’s a controversial and pedantic way of thinking about the law, but one at least some conservative Supreme Court justices have endorsed. In doing so, they’re essentially saying that cops are inherently believable, while people that are shot by cops are not.

And Justice Sonia Sotomayor is having none of it. She believed the Supreme Court should have taken the case: In her dissent from the denial of certiorari, she raged, and rightly so, about this state of affairs.

She dryly noted that the explanation of “he reached for his waistband” is a depressingly well-worn one, trotted out all too often to justify police shootings of this sort. She saves her real ire, however, for discussing how this decision flies in the face of how the American legal system is supposed to work:

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, summary judgment is improper.

What Sotomayor is getting at is incredibly crucial: Officers are no more or less inherently believable than anyone else at this stage in a lawsuit. A determination of credibility must go to a jury for them to sort out who is telling the truth. To decide at this point that a police officer’s word is better than that of the shooting victim—even though the victim’s testimony is also made under oath—is to say that the police essentially never lie (and that, of course, victims of police shootings do).


Sotomayor’s wording here echoes her passionate dissent in Utah v. Strieff. In that 2016 case, a police officer detained Edward Strieff simply for leaving a house he was observing. After stopping Strieff, the officer ran his license and found out Strieff had an arrest warrant for an unpaid parking ticket. He then arrested Strieff, searched him, and found drugs and drug paraphernalia.

Legally, however, the police aren’t allowed to just stop you for no reason. Strieff said the evidence should be suppressed because of that, but the Supreme Court disagreed, saying that since the police officer later ultimately figured out Strieff had a warrant out—even for something as absurdly small as a parking ticket—it made the initial stop permissible.

In Strieff, Sotomayor took her colleagues to task:

To the Court, the fact that a warrant gives an officer cause to arrest a person severs the connection between illegal policing and the resulting discovery of evidence. This is a remarkable proposition: The mere existence of a warrant not only gives an officer legal cause to arrest and search a person, it also forgives an officer who, with no knowledge of the warrant at all, unlawfully stops that person on a whim or hunch.

What Sotomayor’s responses in the Strieff case and Salazar-Limon have in common is this: Sotomayor’s categorical refusal to accede to the view that police can do no wrong.  

The current makeup of the Supreme Court, a makeup only reinforced by the addition of Neil Gorsuch, is one inclined toward terrifying deference to the power of the police. When police can stop anyone for any reason, when the views of police officers are automatically more credible than that of anyone else, there is simply no way that justice can truly be done.