PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
petition for a writ of certiorari is denied.
Justice Alito, with whom Justice Thomas joins, concurring in
the denial of certiorari.
year the courts of appeals decide hundreds of cases in which
they must determine whether thin evidence provided by a
plaintiff is just enough to survive a motion for summary
judgment or not quite enough. This is one such case. Officer
Thompson stated in a deposition that he shot Salazar-Limon
because he saw him turn toward him and reach for his waist in
a movement consistent with reaching for a gun. Record, Doc.
39-2, pp. 29-30, 33. Remarkably, Salazar-Limon did not state
in his deposition or in an affidavit that he did not reach
for his waist, and on that ground the Court of Appeals held
that respondents were entitled to summary judgment. 826 F.3d
272, 278-279 (CA5 2016).
dissent disagrees with that judgment. The dissent
acknowledges that summary judgment would be proper if the
record compelled the conclusion that Salazar-Limon reached
for his waist, but the dissent believes that, if the case had
gone to trial, a jury could have reasonably inferred that
Salazar-Limon did not reach for his waist- even if
Salazar-Limon never testified to that fact. The dissent's
conclusion is surely debatable. But in any event, this Court
does not typically grant a petition for a writ of certiorari
to review a factual question of this sort, see this
Court's Rule 10, and I therefore concur in the denial of
to put our disposition of this petition in perspective.
First, whether or not one agrees with the grant of summary
judgment in favor of Officer Thompson, it is clear that the
lower courts acted responsibly and attempted faithfully to
apply the correct legal rule to what is at best a marginal
set of facts.
this Court applies uniform standards in determining whether
to grant review in cases involving allegations that a law
enforcement officer engaged in unconstitutional conduct. We
may grant review if the lower court conspicuously failed to
apply a governing legal rule. See this Court's Rule 10.
The dissent cites five such cases in which we granted relief
for law enforcement officers, and in all but one of those
cases there was no published dissent. White v.
Pauly, 580 U.S. ___ (2017) (per curiam); Mullenix v.
Luna, 577 U.S.___ (2015) (per curiam); Taylor v.
Barkes, 575 U.S.___ (2015) (per curiam); Carroll v.
Carman, 574 U.S. ___ (2014) (per curiam); Stanton v.
Sims, 571 U.S.___ (2013) (per curiam). 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.
noted, regardless of whether the petitioner is an officer or
an alleged victim of police misconduct, we rarely grant
review where the thrust of the claim is that a lower court
simply erred in applying a settled rule of law to the facts
of a particular case. See this Court's Rule 10. The case
before us falls squarely in that category.
undeniably a tragic case, but as the dissent notes,
post, at 8 (opinion of SOTOMAYOR, J.), we have no
way of determining what actually happened in Houston on the
night when Salazar-Limon was shot. All that the lower courts
and this Court can do is to apply the governing rules in a
Justice Sotomayor, with whom Justice Ginsburg joins,
dissenting from the denial of certiorari.
after midnight on October 29, 2010, a Houston police officer
shot petitioner Ricardo Salazar-Limon in the back.
Salazar-Limon claims the officer shot him as he tried to walk
away from a confrontation with the officer on an overpass.
The officer, by contrast, claims that Salazar-Limon turned
toward him and reached for his waistband- as if for a
gun-before the officer fired a shot. The question whether the
officer used excessive force in shooting Salazar-Limon thus
turns in large part on which man is telling the truth. Our
legal system entrusts this decision to a jury sitting as
finder of fact, not a judge reviewing a paper record.
courts below thought otherwise. The District Court credited
the officer's version of events and granted summary
judgment to respondents-the officer and the city. 97
F.Supp.3d 898 (SD Tex. 2015). The Fifth Circuit affirmed. 826
F.3d 272 (2016). But summary judgment is appropriate only
where "there is no genuine dispute as to any material
fact." Fed. Rule Civ. Proc. 56(a). The courts below
failed to heed that mandate. Three Terms ago, we summarily
reversed the Fifth Circuit in a case "reflecting] a
clear misapprehension of summary judgment standards."
Tolan v. Cotton, 572 U.S.___, ___ (2014)
(per curiam) (slip op., at 10). This case
reflects the same fundamental error. I respectfully dissent
from the Court's failure to grant certiorari and reverse.
encounter at issue here occurred around midnight on October
29, 2010, on the outskirts of Houston, Texas. Salazar-Limon,
who had been drinking, was driving with three other men down
Houston's Southwest Freeway. Houston Police Department
Officer Chris Thompson was manning a speed gun on the freeway
that night and spotted Salazar-Limon's truck weaving
between lanes. He turned on his lights and sirens, and
Salazar-Limon pulled over and stopped on the shoulder of an
overpass. Thompson walked over to the window of
Salazar-Limon's truck and asked for his ...