The Empty Waistband

In a biting dissent, Justice Sotomayor takes aim at the lie that lets police officers shoot unarmed men with impunity.

Justice Sonia Sotomayor leaves the Rose Garder after attending Judge Neil Gorsuch’s judicial oath ceremony on April 10 in Washington.

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On the night of Oct. 30, 2010, Houston police officer Chris Thompson shot Ricardo Salazar-Limon in the back, severing his spine and paralyzing him from the waist down. Why? Each man’s account of the encounter is dramatically different: Salazar-Limon claims he was simply attempting to walk away from the officer; Thompson says he thought that Salazar-Limon was reaching for a gun in his waistband. In fact, Salazar-Limon didn’t have a gun. But when he sued Thompson for using excessive force against him, the district court chose to believe Thompson, throwing out the lawsuit. An appeals court affirmed that ruling, holding that Thompson’s decision to shoot Salazar-Limon in the back was “not unreasonable” because “he did [it] to protect himself.”

The Supreme Court refused to review the appeals court’s judgment on Monday, effectively ending Salazar-Limon’s quest for restitution. But Justice Sonia Sotomayor didn’t let the case fizzle out quietly. Instead, she penned a powerful dissent, joined by Justice Ruth Bader Ginsburg, sharply criticizing her colleagues’ willingness to ignore a possible instance of police brutality. Sotomayor has been sounding this alarm for years, but her opinion on Monday is especially trenchant. It serves as a warning to us all that the court’s excessive force jurisprudence has gone lethally off track—especially when the victims are minority men.

Salazar-Limon v. City of Houston, like many police brutality cases, revolves around one question: Did Thompson act reasonably when he discharged his firearm that night in 2010? The events leading up to that bloody moment, as described in Salazar-Limon’s petition to the Supreme Court, provide some context. Thompson first spotted Salazar-Limon driving his truck down the highway at about 10 miles over the speed limit. He was accompanied by three friends, with his wife and children waiting at home. Thompson pulled him over, approached the truck, and asked to see Salazar-Limon’s license and insurance card. Salazar-Limon responded, “Of course,” and asked whether he could get out to retrieve his insurance information from his glove compartment. “Of course,” Thompson responded. The three friends sat quietly in the truck.

When Salazar-Limon handed Thompson his driver’s license, which is Mexican, Thompson said, “What’s this?” Salazar-Limon explained that it was his license and said, “Excuse me, sir. Can I ask you something?” Thompson responded, “No. Quiet. Calm down.” Salazar-Limon said, “OK.” Thompson walked back to his car and ran Salazar-Limon’s license, which came up clear, with no record of a criminal history. Although Salazar-Limon had consumed several drinks that evening, he was not drinking while driving and was not obviously inebriated. Still, Thompson summoned Salazar-Limon over to his car, then told him he was going to jail and attempted to handcuff him.

What happened next is a matter of dispute. Salazar-Limon asserts that he pulled his hand back and started to walk away when Thompson yelled, “Stop” and fired his gun. Thompson insists that the two men engaged in a brief struggle and that when he told Salazar-Limon to stop walking, he reached toward his waistband, as if for a gun. Initially, Thompson said he pulled the trigger after Salazar-Limon reached toward his waistband. But several months after giving that statement, Thompson gave another statement in which he recalled that Salazar-Limon actually turned toward him as he reached for the gun that did not exist. It isn’t clear why Thompson failed to include this critical detail in his first report.

Regardless, a district court dismissed Salazar-Limon’s lawsuit alleging a violation of his Fourth Amendment right to be free from excessive force. The court granted summary judgment to Thompson, depriving Salazar-Limon of the opportunity to present his case to a jury. Reviewing both men’s affidavits, the court found that there was “no genuine dispute as to any material fact.” If Salazar-Limon had contested Thompson’s claim that he reached toward his waistband, the court explained, the case would involve a factual dispute best settled by a jury. But because Salazar-Limon had not explicitly contested that particular claim—he never mentioned his waistband at all—the court concluded that he was not challenging Thompson’s version of the facts. Therefore, Thompson was entitled to qualified immunity—a shield against Salazar-Limon’s lawsuit. (Courts have long held that officers may reasonably fear for their lives when a suspect reaches toward his waistband, meaning an officer who shoots an individual for doing so cannot usually be sued.) The 5th U.S. Circuit Court of Appeals affirmed the lower court’s judgment, and on Monday, a majority of the Supreme Court voted to let that decision stand.

As Sotomayor pointed out in her dissent, both of these rulings warp the law in an effort to reach a police-protective outcome. Neglecting to mention reaching for his waistband was hardly the same as confirming it, she argued, Salazar-Limon’s own testimony “controverted Thompson’s claim that Salazar-Limon had turned and reached for his waistband.” According to Salazar-Limon, Thompson fired his gun as he shouted “Stop”; according to Thompson, he discharged the weapon only after Salazar-Limon turned and reached down. In Salazar-Limon’s telling, this action—swiveling around while moving his hand toward his waist—did not occur. There is thus a factual dispute for a jury to resolve.

“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,” Sotomayor continued. “It also continues a disturbing trend regarding the use of this court’s resources”—namely, that the court routinely intervenes to protect police officers from lawsuits but rarely intervenes “where courts wrongly afford officers the benefit of qualified immunity.” This trend, the justice noted, is especially distressing in light of the growing pattern of officers shooting men who are “allegedly reach[ing] for empty waistbands.” To illustrate this point, Sotomayor cited a study showing that “nearly half of the individuals shot by Los Angeles police after allegedly reaching for their waistbands turned out to be unarmed.” She also cited an entire Washington Post article by Radley Balko collecting instances of what Balko calls “ ‘unarmed man reaches for his waistband’ shootings.”

“That these cases are increasingly common,” the justice wrote, “makes it even more important for lower courts—confronted with such inconsistencies—to let the jury exercise its role as the arbiter of credibility disputes.”

When Sotomayor writes a dissent like this, she frequently intends it to serve as an admonition to the broader public to pay careful attention to her colleagues’ dangerous error. Here, Sotomayor is clearly concerned about the judiciary’s tendency to shield even the most violent officers from lawsuits. But she is also dismayed by the underlying problem in the case: the ease with which cops can justify shootings by alleging that their unarmed victims were reaching for guns. Officers have used this defense across the country, often after killing minority men. The courts, Sotomayor suggested on Monday, have become complicit in this injustice. And until judges stop favoring law enforcement’s version of the truth, men like Salazar-Limon will have little protection against the gruesome horrors of police brutality.