When the Courts Take Police Officers at Their Word
Critics accuse federal judges of too easily trusting law enforcement in cases involving excessive force. This week, the Supreme Court declined its chance to echo—or dismiss—that allegation.
On a mild Friday evening in late October 2010, Ricardo Salazar-Limon was in his white Toyota pickup truck, driving west along Houston, Texas’s Southwest Freeway. After a long day painting and hanging sheetrock at NASA’s Johnson Space Center he stopped off at the modest gray rancher he shared with his young family and his friend Rogelio. The two men commiserated over a couple beers before setting out for the home of an acquaintance across town. On the way, they picked up a 12-pack of Bud Light and two of Rogelio’s friends. Salazar-Limon, who was 25 at the time, would recall it as “a common day, like any other.”
That is, until a siren and red-and-blue lights erupted behind Salazar-Limon’s truck just after midnight. He knew he had been speeding, and he eased onto the shoulder, pulling up alongside the scuffed Jersey barrier that marked the edge of a freeway overpass. Chris Thompson, a patrol officer with the Houston Police Department, parked his police cruiser behind the truck.
All parties agree that what began as a routine traffic stop ended with a bullet fired from Thompson’s service revolver lodged in Salazar-Limon’s spine, leaving him wheelchair-bound. But what happened in between—and how two federal courts later handled the Rashomon-like duel of contested narratives that emerged from it—is a stark example of a problem that has come to vex plaintiffs who bring civil-rights lawsuits against police. With the Supreme Court on Monday declining to hear Salazar-Limon’s case—over a two-justice dissent—the judges of those two courts will have the last word.
At issue was the courts’ decision to deny Salazar-Limon a jury trial. Ordinarily, through a procedure called summary judgment, a judge can dismiss a case before it reaches a jury only if the judge finds the evidence in the case leaves no question of fact or credibility for a jury to resolve. The courts ignored those rules in Salazar-Limon’s case, Justices Sonia Sotomayor and Ruth Bader Ginsburg wrote in their dissent: Despite Salazar-Limon and Thompson offering accounts that “flatly contradict each other,” both lower courts took the officer at his word, leaving nothing for a jury to decide. Yet whose story is more credible—a quintessential jury question—is what the case is all about, a point the dissenters highlighted: If Thompson’s story is true, his decision to pull the trigger was justified; if Salazar-Limon’s is true, a jury could find it wasn’t.
The case, as the dissenting justices recognized, is not a one-off. Recent years have seen growing concern in the legal community that judges in police civil-rights lawsuits are usurping the jury’s role. By twisting the ordinary procedure of summary judgment, critics contend, these judges prematurely shut down lawsuits by, in effect, crediting the officer over the plaintiff. This practice, legal scholars say, is part of a broader trend within the judiciary toward erecting barriers to bringing civil excessive-force cases against police officers.
At stake is not just the chance of a plaintiff, like Salazar-Limon, to prove to a jury of his peers that he’s telling the truth about how the police treated him. What’s at stake—at a moment when faith in government to take seriously allegations of police misconduct is at a low point in many communities—is the perceived legitimacy of federal courts as fair and unbiased institutions among a significant cross section of Americans.
As Salazar-Limon remembers it, his encounter with Thompson began innocuously enough: license and registration, mild puzzlement over his Mexican identification card (Salazar-Limon moved to Texas from central Mexico when he was 16), Thompson’s walk back to his patrol car to run Salazar-Limon’s information. The standard tenor of the stop didn’t last. A few minutes later, Thompson reemerged into the sodium light of the freeway, stopped in the gap between his car and the truck, and called for Salazar-Limon to join him.
As the two men stood between the still-running vehicles, Thompson told Salazar-Limon he was taking him to jail. In answer to Salazar-Limon’s “Why?” Thompson replied curtly: “Don’t ask.” Thompson moved to handcuff Salazar-Limon, but the man snatched his hand away and turned around. As cars sped by on the freeway, Salazar-Limon began to walk away from Thompson, through the narrow space between the Jersey barrier and his truck. “I became frightened,” he later explained.
Salazar-Limon didn’t get more than a few steps before he heard Thompson shout for him to stop. He didn’t, and instead took another step or two. Then, as he later recounted, “I hear: Boom. I began to feel hot in my back, wet. And so I turn around, and I see him. And then I fall.” Salazar-Limon collapsed near the front of his truck. He tried to reach for the bumper to pull himself to his feet, but he could no longer move his legs. “I was kind of like suffocating,” Salazar-Limon recalled during a deposition. “I was, like, leaving. I was dying.” In a photograph taken later that night, a blood smear, illuminated by the headlights of his truck, stains the gray asphalt beside the barrier.
Thompson remembers that night differently. When Salazar-Limon rolled down his window, Thompson smelled alcohol. (Salazar-Limon later said he’d had between three and five beers in the previous four hours.) After Thompson ran Salazar-Limon’s information, he had the man step out of his truck and walk with him to the gap between the truck and the patrol car. Thompson told Salazar-Limon in a calm voice that he needed to detain him while he conducted a sobriety test. He asked Salazar-Limon to turn around and put his hands behind his back.
He complied. But as Thompson reached for an arm to handcuff him, Salazar-Limon spun around and pushed Thompson toward the freeway. The two wound up in what the officer described as “a wrestler’s lock,” with Salazar-Limon shoving Thompson—the larger of the two by about six inches and 45 pounds—in the direction of the Jersey barrier at the edge of the elevated freeway. (Thompson acknowledged in his deposition that he emerged without a scrape or a bruise.)
In time, Salazar-Limon broke free and began to walk away from Thompson, between the barrier and his truck. The patrolman, alarmed by the scuffle, drew his gun and pointed it at Salazar-Limon. As Thompson kept him in his sights, his eye was drawn not to the driver’s blue slacks or his dress shoes—a doctor a few hours later would label him “well groomed”—but to the untucked button-down shirt that hung over his waistband. Thompson’s thoughts raced: “This guy tried to push me in traffic. He tried to push me over the bridge. I need my gun. I haven’t searched him. He has a long shirt. He’s pushing away for a reason.” He called twice after Salazar-Limon, who was shouting in Spanish, to stop and show his hands.
When Salazar-Limon neared the cab of the truck, he turned over his left shoulder, made eye contact with Thompson, and appeared to reach a hand in front of him toward his waistband. “The brain said, ‘This guy is reaching for a weapon,’” Thompson later recalled. “Pull the trigger.” Then he did.
In 2011, Salazar-Limon sued Thompson, alleging the officer had violated his constitutional rights. To many—including Sotomayor and Ginsburg—Salazar-Limon’s is a classic example of a case for a jury to decide. As even Justice Samuel Alito conceded in an opinion supporting the Court’s decision, only the two men know what happened between them that night. The passengers in Salazar-Limon’s truck provided no clarity: According to Sean Palavan, an attorney for Salazar-Limon, they said they didn’t see what happened just before Thompson fired.
But that’s not the way it looked to the federal judges who heard the case—a district-court judge in Houston and three judges on the U.S. Court of Appeals for the Fifth Circuit, which covers Texas, Louisiana, and Mississippi. In the view of those judges, no reasonable juror could disbelieve Thompson’s account—that Salazar-Limon turned and reached for his waistband—because Salazar-Limon, who was unarmed, didn’t explicitly deny having done so. On that basis, they granted Thompson summary judgment and refused to let the case go before a jury.
That, Sotomayor wrote on Monday, inverted the summary-judgment formula, amounting to a “fundamental error.” She referenced an earlier, similar case in Texas—also out of the Fifth Circuit—that the Court had decided to act on. In what was widely viewed as an unusual procedural move, in 2014 the Supreme Court summarily reversed two Fifth Circuit opinions because the judges had credited officers’ accounts in police excessive-force cases, and not plaintiffs’. Echoing the justices’ language in that older case, Sotomayor called the lower courts’ actions in Salazar-Limon “a clear misapprehension of summary-judgment standards.”
The practice is not confined to the conservative states of the Fifth Circuit. Also in 2014, Alex Kozinski—at the time, the chief judge of the federal appeals court in California—penned an opinion that rebuked judges who are too quick to respond credulously to officer testimony. Kozinski wrote: If the suspect “didn’t have a gun on him,” a jury might ask—even in the absence of contradictory testimony—“why would he have reached for his waistband?” (Sotomayor in her dissent took note of “the increasing frequency of incidents in which unarmed men allegedly reach for empty waistbands when facing armed officers.”)
In Salazar-Limon’s case, there was a good reason why he didn’t mention his waistband: His deposition took place about two weeks before Thompson’s, where the officer first claimed Salazar-Limon had turned and reached for it. “The plaintiff in his deposition is not asked and does not say, ‘I was not reaching into my waistband,’” said Joanna Schwartz, a University of California, Los Angeles, law professor who has written extensively about police-misconduct litigation. “But everything he says is inconsistent with what the officer is saying.” Lawyers for Thompson, who declined to comment, never asked Salazar-Limon to corroborate or dispute the patrolman’s story.
The core critique leveled by Sotomayor and Ginsburg at their colleagues Monday was that—as Harvard Law School professor Noah Feldman has observed—the Supreme Court has in recent years regularly chastised lower courts for being too willing to let lawsuits against police advance to a jury. Yet it’s less eager to jump in when a judge has perhaps improperly denied access to a jury in a lawsuit against police. The high court’s solicitous approach to police led Sotomayor to accuse her colleagues in 2015 of “sanctioning a ‘shoot first, think later’ approach to policing.” (In their concurring opinion Monday, Justices Samuel Alito and Clarence Thomas didn’t offer much of a defense of the lower courts’ decisions, and instead leaned on procedural rules to justify their punt.)
But signals from the high court may not be the only thing that has led judges to keep cases like Salazar-Limon’s from juries. Another factor, a Harvard Law Review study on the subject suggests, is what social psychologists call “naïve realism”—the ability to detect value-motivated interpretations of fact in others but not in oneself. For example, a judge might think that only a juror with an unreasonable anti-police bias would see Salazar-Limon’s testimony as inconsistent with Thompson’s. Yet that judge may not realize that his own view of the facts is colored by his faith in police.
“If you’re a federal judge, you probably trust the authorities because you’re one of them and because you’ve had only great experiences with the cops,” said David Hoffman, a law professor at the University of Pennsylvania and an author of the study. “These judges—the people who are making these decisions—haven’t lived the sorts of lives that would make them disposed not to trust the police.”
Whatever the cause, rulings like those in Salazar-Limon’s case carry with them potentially significant social costs. In Sotomayor’s words, they risk imposing “harm on society as a whole.” That includes an erosion of faith in federal courts, once seen as a bulwark against civil-rights violations. For one, these types of rulings deny those who claim to be victims of an abuse of state power access to a core democratic institution—a jury trial. For another, they dismiss as unreasonable a view of police testimony possibly held by a number of potential jurors. (A judge has to find that no reasonable juror could find for the plaintiff before granting summary judgment.)
The potential costs are particularly pronounced today, given widespread skepticism in many American communities of the willingness and ability of government officials to hold police accountable for misconduct. Grave concerns have been raised over whether internal-affairs investigators or prosecutors are taking such concerns seriously. A judge stepping into the place of a civilian jury can leave a federal court open to the same criticism—yet another government official denying alleged victims access to the legal process.
“It’s like you’ve been assaulted again. These judges take an oath before God and man to be administrators of justice, and they’re not doing their jobs,” said Marian Tolan, a plaintiff in one of the Fifth Circuit cases the Supreme Court summarily reversed in 2014. “It’s only justice for some and not justice for all.”
For those who maintain they have been mistreated by police, “this kind of civil litigation is in some ways the last hope,” said Howard Wasserman, a law professor at Florida International University and scholar of policing and civil-rights litigation. “Police departments aren’t doing a good job of policing themselves. It’s really hard to get grand juries to indict an officer, and we’ve seen it’s very hard to get a jury to convict an officer in criminal cases. It’s really hard for the federal government to step in with civil-rights prosecutions because the state-of-mind requirement is too high”—proof beyond a reasonable doubt that an officer deliberately deprived a person of his or her rights—“and now we have a Department of Justice that has absolutely no interest in bringing those sorts of cases. So this is it, if you’re talking about some way to sanction officer-involved shootings.”
Not everybody agrees that appearances should concern courts. “There is a need to have better community relations and better understanding on both sides,” said Kevin Boyle, general counsel of the International Union of Police Associations. “But the courts are not the place to worry about community relations or community perceptions. That’s at the community and department level. The court is there to find the truth.”
Although Justice Sotomayor’s dissent may offer some backing to plaintiffs in future cases, it offers little to Salazar-Limon. He remains “a guy who was shot, who was unarmed, who’s paralyzed, and who won’t get to see the inside of a courtroom,” said David Mills, who represented him in his appeal to the Supreme Court. Now 31, he has spent several years training to work with computers, a career move necessitated by his paralysis. Another of his lawyers said Salazar-Limon has moved on from his anger at Thompson, but it remained palpable nearly three years after the shooting, during his deposition. “I believe he used too much force. He’s nobody to decide my life. He ruined my life,” Salazar-Limon said. “I’m suing him because he ruined my life.”