The increasing trend by courts–and the Supreme Court in particular–to deny victims of police violence from even having a chance to tell their case to a jury is more than a simple reflection of privileged deference to the police by folks on all sides of the political spectrum. It is evidence of a consistent judicial effort to put a nearly insurmountable thumb on the scales of justice.
I’m fairly confident that Justices Sotomayor and Ginsburg aren’t the only Supreme Court justices who fully understand the summary judgment and qualified immunity standards. It seems they are, however, the only ones who are consistent and honest about those standards in cases alleging excessive force.
It is one thing for a judge to personally believe officers’ versions of the facts in the face of contradictory evidence. It is quite another for them to personally decide the case by acting as if there is no such contradiction when there clearly is, or by continually moving the qualified immunity goal posts as they go.
Myriad problems already stand in the way of our society’s ability to demand police accountability–a largely apathetic and ambivalent citizenry, the disappearance of independent police oversight, overly powerful police unions, mass non-prosecution of criminal conduct by police officers, and more. An intellectually dishonest judiciary can only serve as the poison cherry on top of a steaming pile. It must stop.
Our failure to correct the error made by the courts below leaves in place a judgment that accepts the word of one party over the word of another. It also continues a disturbing trend regarding the use of this Court’s resources. We have not hesitated to summarily reverse courts for wrongly denying officers the protection of qualified immunity in cases involving the use of force. But we rarely intervene where courts wrongly afford officers the benefit of qualified immunity in these same cases. The erroneous grant of summary judgment in qualified-immunity cases imposes no less harm on society as a whole than does the erroneous denial of summary judgment in such cases. We took one step toward addressing this asymmetry in Tolan. We take one step back today.
–Justice Sotomayor in Salazar-Limon v. City of Houston, Tex., 137 S. Ct. 1277, 1282–83, 197 L. Ed. 2d 751 (2017) (internal citations and quotations omitted)(joined by Justice Ginsburg).
This unwarranted summary reversal is symptomatic of a disturbing trend regarding the use of this Court’s resources in qualified-immunity cases. As I have previously noted, this Court routinely displays an unflinching willingness to summarily reverse courts for wrongly denying officers the protection of qualified immunity but rarely intervenes where courts wrongly afford officers the benefit of qualified immunity in these same cases. Such a one-sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment.The majority today exacerbates that troubling asymmetry. Its decision is not just wrong on the law; it also sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished. Because there is nothing right or just under the law about this, I respectfully dissent.
–Justice Sotomayor in Kisela v. Hughes, No. 17-467, 2018 WL 1568126, at *14 (U.S. Apr. 2, 2018) (internal citations and quotations omitted)(joined by Justice Ginsburg).