The Supreme Court at sunset in Washington. (Jon Elswick/Associated Press)

This morning, the Supreme Court denied certiorari in a case called Salazar-Limon v. City of Houston, a civil rights lawsuit in which the U.S. Court of Appeals for the 5th Circuit affirmed qualified immunity for a police officer who shot an unarmed man, because the man was allegedly reaching for his waistband. (Why he would be reaching for his waistband, given that he was unarmed, is a mystery.)

Though the Supreme Court does not normally explain its denials of certiorari, the denial prompted a couple of opinions. Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, dissented. Sotomayor argued that the district court had wrongly granted summary judgment and foreclosed a trial, “disregarding basic principles of summary judgment,” which should have made “easy work” of the case.

But she also remarked on a broader phenomenon in the court’s qualified immunity docket:

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. See, e.g., 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). 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,’” City and County of San Francisco v. Sheehan, 575 U. S. ___, ___, n.3 (2015) (slip op., at 10, n. 3) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982)), than does the erroneous denial of summary judgment in such cases. We took one step toward addressing this asymmetry in Tolan. 572 U.S., at ___ (slip op., at 11). We take one step back today.

I’ve written about this phenomenon before along similar lines, first in this old blog post about the Tolan v. Cotton, the case Sotomayor mentions, then in my articles “The Supreme Court’s Shadow Docket” and “Is Qualified Immunity Unlawful?” I’m pleased to see Sotomayor on the case.

But Sotomayor’s challenge did not go unanswered. Justice Samuel A. Alito, joined by Justice Clarence Thomas, wrote an opinion concurring in the denial of certiorari. After noting why he thought the dissent’s conclusion was “surely debatable,” Alito wrote:

I write 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.

Second, 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.

As 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.

This is 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 neutral fashion.

I don’t know who is right about this particular case. But I found Alito’s description of the court’s neutral principles of certiorari a little hard to fully accept for several reasons.

First, just two years ago, Alito seemed to say the opposite. In the 2015 case of San Francisco v. Sheehan, the court had a little dust-up about whether to “DIG” (i.e., dismiss) a case once it became clear that the central legal issue was not really presented, and the only remaining question was whether the police officers in the case deserved qualified immunity. Over Justice Antonin Scalia’s and Justice Elena Kagan’s dissent, the court soldiered on to resolve the qualified immunity issue anyway, even though it seemed to be a fact-bound determination presenting no real circuit split.

Alito, writing the opinion of the court, said this in defense of resolving the qualified immunity question:

When we granted the petition, we determined that both questions independently merited review. Because of the importance of qualified immunity “to society as a whole,” Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982), the Court often corrects lower courts when they wrongly subject individual officers to liability. See, e.g., Carroll v. Carman, 574 U.S. –––– (2014) (per curiam); Wood v. Moss, 572 U.S. –––– (2014); Plumhoff v. Rickard, 572 U.S. –––– (2014); Stanton v. Sims, 571 U.S. –––– (2013) (per curiam ); Reichle v. Howards, 566 U.S. –––– (2012).

This sure seems like an attempt to justify the court’s special solicitude for police officers in qualified immunity cases, and indeed the Court relied on this formulation again to justify its most recent qualified immunity summary reversal in White v. Pauly.

Second, looking at the court’s recent summary reversal decisions cited by Alito and Sotomayor, the decisions seem to be just as much cases of fact-bound error correction as this one. Alito tries to differentiate between cases “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” and cases where “the lower court conspicuously failed to apply a governing legal rule.” But the only thing really dividing these two formulations is the difference between “simple” error and “conspicuous” failure. With due respect, I’m not sure that’s much of a difference, nor one that admits of neutral application.

Third, the broader pattern of qualified immunity cases also suggests a double standard for the court’s jurisdiction. As detailed toward the end of my qualified immunity draft, in the past 35 years, the overwhelming majority of the court’s qualified immunity decisions have been in favor of officers whose immunity was denied by the lower courts. And since the beginning of the Roberts Court, the court has issued more summary reversals in qualified immunity cases than any category other than habeas cases.

Until today, I thought that the court had acknowledged and defended this double standard for qualified immunity cases, on the ground that it was really important to protect officers from lawsuits. But perhaps I misunderstood.

In any event, I am happy to see some of the justices paying attention to this issue, and I am also happy to see them agree that in principle the court’s standards for review in these cases ought to be evenhanded. I am not sure that the court’s past practice has lived up to that principle, but I hope that it will in the future.