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` Cite as: 581 U. S. ____ (2017)
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` ALITO, J., concurring
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`SUPREME COURT OF THE UNITED STATES
`
` RICARDO SALAZAR-LIMON v. CITY OF
`
`
`
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` HOUSTON, TEXAS, ET AL.
`
`ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
`
`
`STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
`
`
`
`
` No. 16–515. Decided April 24, 2017
`
`The petition for a writ of certiorari is denied.
`JUSTICE ALITO, with whom JUSTICE THOMAS joins,
`
`
`concurring in the denial of certiorari.
`
`Every 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).
`
`The 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 in-
`ferred 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
`
`

`

`2
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`SALAZAR-LIMON v. HOUSTON
`
` ALITO, J., concurring
`
`
`
`
`review here.
`
`I write to put our disposition of this petition in perspec-
`tive. 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 deter-
`mining whether to grant review in cases involving allega-
`tions that a law enforcement officer engaged in unconsti-
`tutional 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 dis-
`sent. White v. Pauly, 580 U. S. ___ (2017) (per curiam);
`Mullenix v. Luna, 577 U. S. ___ (2015) (per curiam); Tay-
`lor 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 unconstitu-
`tional 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 govern-
`ing rules in a neutral fashion.
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` Cite as: 581 U. S. ____ (2017)
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` SOTOMAYOR, J., dissenting
`
`
`SUPREME COURT OF THE UNITED STATES
`
` RICARDO SALAZAR-LIMON v. CITY OF
`
`
`
`
` HOUSTON, TEXAS, ET AL.
`
`ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
`
`
`STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
`
`
`No. 16–515. Decided April 24, 2017
`
` JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG
`
`joins, dissenting from the denial of certiorari.
`
`
`Just 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 ques-
`tion 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.
`
`The courts below thought otherwise. The District Court
`credited the officer’s version of events and granted sum-
`
`mary 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 “reflect[ing]
`a clear misapprehension of summary judgment stand-
`ards.” Tolan v. Cotton, 572 U. S. ___, ___ (2014) (per
`curiam) (slip op., at 10). This case reflects the same fun-
`damental error. I respectfully dissent from the Court’s
`failure to grant certiorari and reverse.
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`

`

`
`
`SALAZAR-LIMON v. HOUSTON
`
` SOTOMAYOR, J., dissenting
`
`I
`
`The 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 spot-
`ted 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. Thomp-
`son walked over to the window of Salazar-Limon’s truck
`and asked for his driver’s license and proof of insurance,
`
`Thompson checked
`which Salazar-Limon provided.
`
`
`Salazar-Limon’s license and found no outstanding warrants.
`
`When Thompson returned to the truck, the incident
`quickly escalated. Thompson asked Salazar-Limon to step
`out of the truck—apparently intending to conduct a blood
`alcohol test—and the two men began to walk together
`toward Thompson’s patrol car. Although the men dispute
`the details of what happened next, they agree that
`Thompson tried to put Salazar-Limon in handcuffs; that
`
`Salazar-Limon resisted; and that a brief struggle ensued.
`At the end of the struggle, Salazar-Limon turned away
`and began to walk back to his truck, his back to Thomp-
`son. Thompson drew his firearm and told Salazar-Limon
`to stop walking.
`
`
`What matters is what happened next, and here the men
`tell different stories. According to Salazar-Limon, Thomp-
`son shot him “immediately”—at most, within “seconds” of
`the oral command. Record, Doc. 39–1, p. 8. Salazar-
`Limon testified that when the bullet hit his back, he began
`
`to turn toward Thompson and then fell to the ground.
`
`Ibid. Thompson’s version of the story differs. According to
`Thompson, when he told Salazar-Limon to stop walking,
`Salazar-Limon raised his hands toward his waistband—as
`if for a weapon—and turned toward him. Id., Doc. 39–2,
`
`2
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`

`

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`Cite as: 581 U. S. ____ (2017)
`
` SOTOMAYOR, J., dissenting
`
`
`at 29. Thompson testified that he shot Salazar-Limon
`only “[o]nce he made the motion towards his waistband.”
`Ibid. Salazar-Limon, in other words, claims that Thomp-
`
`son shot him in the back while he was walking away.
`Thompson claims that Salazar-Limon provoked the shot
`by turning toward him and reaching for what he thought
`
`was a gun.
`
`Salazar-Limon survived the encounter but sustained
`crippling injuries. In 2011, he sued Thompson, the city of
`Houston, and various police officials, alleging violations of
`his constitutional rights. Respondents removed the case
`to federal court and moved for summary judgment, argu-
`
`ing that Thompson was protected by qualified immunity.1
`
`Respondents emphasized that, in their view, even viewed
`in the light most favorable to Salazar-Limon, the facts did
`not support an excessive-force claim:
`“Thompson was dealing with a suspect who physically
`resisted arres[t] while the two stood on a dimly lit
`overpass of a busy expressway; he was alone with
`Salazar-Limon and [three] other suspects, all of whom
`he had not searched; Salazar-Limon disobeyed
`Thompson’s orders to stop and proceeded to walk in
`the direction of his truck[,] which had not been
`searched either.” Id., Doc. 31, at 20.
`Respondents did not cite Thompson’s allegation that Salazar-
`Limon had turned and reached for his waistband, at
`least not in any part of their motion that relied only on
`undisputed facts; rather, they relied on the facts preceding
`the alleged turn and reach to argue that Thompson acted
`reasonably under the circumstances. See id., at 13–14
`——————
`1The city also argued that Salazar-Limon had failed to plead a claim
`
`
` for supervisory liability against it under Monell v. New York City Dept.
`of Social Servs., 436 U. S. 658 (1978). The District Court granted
`summary judgment to the city, and although Salazar-Limon argued on
`
` appeal that it erred in doing so, he does not renew that contention here.
`
`
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`3
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`

`
`
`SALAZAR-LIMON v. HOUSTON
`
` SOTOMAYOR, J., dissenting
`
`(statement of undisputed facts).
`
`The District Court granted summary judgment to re-
`spondents, but on a different understanding of the alleged
`facts. In the District Court’s view, “Thompson testified
`that Salazar[-Limon] stopped walking and start[ed] turn-
`ing back toward Thompson, reaching toward his waist-
`band,” and Salazar-Limon “offered no controverting evi-
`dence.” 97 F. Supp. 3d, at 906. As a result, the District
`Court found, “uncontroverted record evidence” showed
`that Salazar-Limon “disregarded repeated orders, walked
`away, then turned back toward Thom[p]son and reached
`for his waistband before Thompson fired.” Ibid.; see also
`ibid. (“The undisputed summary
`judgment evidence
`showe[d] that . . . as [Salazar-Limon] walked away from
`Officer Thompson toward his own truck, he reached to-
`ward his waistband and began to turn back toward the
`officer”); id., at 907 (“[T]he record shows that when
`Thompson saw Salazar[-Limon] turn toward him, he was
`reaching toward his waistband”); id., at 909 (“Salazar[-
`Limon] has pointed to no summary judgment evidence
`contradicting Thompson’s testimony that he shot because
`. . . Salazar[-Limon] reached for his waistband and turned
`toward him”). On this view of the facts, the District Court
`
`held, Thompson was entitled to qualified immunity. Ibid.
`
`The Fifth Circuit affirmed. 826 F. 3d 272. It acknowl-
`edged Salazar-Limon’s argument that the District Court
`erred in relying on disputed facts, including its findings
`that Salazar-Limon had turned and reached for his waist-
`band before he was shot. Id., at 278. But it explained that
`“only one [of these findings] need be addressed—whether
`Salazar[-Limon] reached for his waistband before being
`shot.” Ibid. “[R]ecord evidence,” the panel stated, “shows
`that Officer Thompson testified that . . . he saw Salazar[-
`Limon] reach for his waistband.” Ibid. By contrast, it
`explained, Salazar-Limon “did not deny reaching for his
`waistband; nor has he submitted any other controverting
`
`4
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` Cite as: 581 U. S. ____ (2017)
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` SOTOMAYOR, J., dissenting
`
`
`evidence in this regard.” Id., at 278–279 (footnote omit-
`ted). To support its assertion, the panel cited only the
`District Court’s finding that “‘uncontroverted record evi-
`dence shows that Salazar[-Limon] . . . reached for his
`waistband before Thompson fired.’” Id., at 278, n. 5 (quot-
`ing 97 F. Supp. 3d, at 906). Thus adopting the same view
`
`of the facts as the District Court had, the panel held that
`Thompson was shielded by qualified immunity.
`
`II
`
`This is not a case that should have been resolved on
`summary judgment. Summary judgment is appropriate
`only where “there is no genuine dispute as to any material
`fact and the movant is entitled to judgment as a matter of
`law.” Fed. Rule Civ. Proc. 56(a). A “judge’s function” in
`evaluating a motion for summary judgment is not “to
`weigh the evidence and determine the truth of the matter
`but to determine whether there is a genuine issue for
`trial.” Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 249
`(1986); see also First Nat. Bank of Ariz. v. Cities Service
`Co., 391 U. S. 253, 289 (1968) (the question at summary
`judgment is whether a jury should “resolve the parties’
`differing versions of the truth at trial”). In doing so, the
`court must “view the facts and draw reasonable inferences
`
`‘in the light most favorable to the party opposing the . . .
`motion.’” Scott v. Harris, 550 U. S. 372, 378 (2007) (quot-
`
`ing United States v. Diebold, Inc., 369 U. S. 654, 655
`
`(1962) (per curiam)).
`
`Applying that rule to this case is easy work. The ques-
`tion before the lower courts was whether the facts, taken
`in the light most favorable to Salazar-Limon, entitled
`Thompson to judgment on Salazar-Limon’s excessive-force
`claim. Saucier v. Katz, 533 U. S. 194, 201 (2001); Graham
`v. Connor, 490 U. S. 386, 394 (1989). Although such cases
`generally require courts to wade through the “factbound
`
`morass of ‘reasonableness,’” Scott, 550 U. S., at 383, here
`
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`

`6
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`SALAZAR-LIMON v. HOUSTON
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` SOTOMAYOR, J., dissenting
`
`
`the question whether Thompson’s use of force was reason-
`able turns in large part on exactly what Salazar-Limon did
`in the moments before Thompson shot him. Indeed, the
`courts below needed to ask only one question: Did Salazar-
`Limon turn and reach for his waistband, or not? If he did,
`Thompson’s use of force was reasonable. If he did not, a
`jury could justifiably decide that the use of force was
`excessive.
`
`
`Given that this case turns in large part on what Salazar-
`Limon did just before he was shot, it should be obvious
`that the parties’ competing accounts of the event preclude
`the entry of summary judgment for Thompson. Thompson
`attested in a deposition that he fired his gun only after he
`saw Salazar-Limon turn and “ma[k]e [a] motion towards
`his waistband area.” Record, Doc. 39–2, at 29. Salazar-
`Limon, by contrast, attested that Thompson fired either
`“immediately” or “seconds” after telling Salazar-Limon to
`stop—and in any case before Salazar-Limon turned toward
`him. Id., Doc. 39–1, at 7–8. These accounts flatly contra-
`dict each other. On the one, Salazar-Limon provoked the
`use of force by turning and raising his hands toward his
`waistband. On the other, Thompson shot without being
`
`provoked. It is not for a judge to resolve these “differing
`versions of the truth” on summary judgment, First Nat.
`
`Bank, 391 U. S., at 289; that question is for a jury to de-
`cide at trial.
`
`The courts below reached the opposite conclusion only
`
`by disregarding basic principles of summary judgment.
`The District Court reasoned that Salazar-Limon “offered
`no controverting evidence” against Thompson’s testimony
`that he turned and reached for his waistband before he
`
`was shot, 97 F. Supp. 3d, at 906, and the Fifth Circuit
`similarly reasoned that Salazar-Limon had not “submitted
`any other controverting evidence” regarding that fact, 826
`F. 3d, at 279. This is plainly wrong. Salazar-Limon’s own
`testimony “controverted” Thompson’s claim that Salazar-
`
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`

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` Cite as: 581 U. S. ____ (2017)
`
` SOTOMAYOR, J., dissenting
`
`
` Limon had turned and reached for his waistband. The
`
`sworn testimony of an eyewitness is competent summary
`judgment evidence. And Salazar-Limon’s testimony “con-
`troverted” Thompson’s; indeed, the two contradict one
`
`another in every material way. Salazar-Limon needed no
`other evidence to defeat summary judgment.
`
`Respondents defend the judgment below on the ground
`
`that Salazar-Limon “had the opportunity to directly con-
`tradict Officer Thompson’s testimony,” but did not do so.
`
`Brief in Opposition 16. JUSTICE ALITO advances the same
`
`argument. Ante, at 1 (concurring opinion). They argue
`that Salazar-Limon never explicitly stated, “I did not
`reach for my waistband,” and that his failure to do so
`
`permitted the courts below to grant summary judgment to
`Thompson. But this inference is questionable at best:
`Salazar-Limon had no need to introduce such an explicit
`statement, given respondents’ concession that the events
`immediately preceding the gunshot (including the alleged
`waistband reach) were subject to dispute. See Record,
`Doc. 31, at 13–14. And even if the inference respondents
`suggest was a reasonable one, it would be improper at the
`summary judgment stage. At that stage, all “reasonable
`inferences should be drawn in favor of the nonmoving
`party”—here, Salazar-Limon. Tolan, 572 U. S., at ___ (slip
`op., at 10). The most natural inference to be drawn from
`
`Salazar-Limon’s testimony was that he neither turned nor
`reached for his waistband before he was shot—especially
`as no gun was ever recovered. See Cruz v. Anaheim, 765
`F. 3d 1076, 1079 (CA9 2014) (“In this case, there’s circum-
`stantial evidence that could give a reasonable jury pause.
`Most obvious is the fact that [the victim] didn’t have a gun
`on him, so why would he have reached for his waist-
`band?”).2 Respondents’ argument to the contrary “reflects
`——————
`2Some commentators have observed the increasing frequency of inci-
`dents in which unarmed men allegedly reach for empty waistbands
`
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`7
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`

`8
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`SALAZAR-LIMON v. HOUSTON
`
` SOTOMAYOR, J., dissenting
`
`
`a clear misapprehension of summary judgment stand-
`ards.” Tolan, 572 U. S., at ___ (slip op., at 10).
`
`This is not a difficult case. When a police officer claims
`that the victim of the use of force took some act that would
`have justified that force, and the victim claims he did not,
`summary judgment is improper. The Fifth Circuit’s deci-
`sion should be reversed.
`
`
`*
`*
`*
`
`Only Thompson and Salazar-Limon know what hap-
`pened on that overpass on October 29, 2010. It is possible
`that Salazar-Limon did something that Thompson reason-
`ably found threatening; it is also possible that Thompson
`
`shot an unarmed man in the back without justification.
`What is clear is that our legal system does not entrust the
`
`resolution of this dispute to a judge faced with competing
`affidavits. The evenhanded administration of justice does
`
`not permit such a shortcut.
`
`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 dis-
`turbing 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 im-
`
`munity in cases involving the use of force. See, e.g., White
`
`
`v. Pauly, 580 U. S. ___ (2017) (per curiam); Mullenix v.
`——————
`when facing armed officers. See Faturechi, Deputies’ Shooting of
`
`
`Unarmed Suspects Rise, L. A. Times, Sept. 23, 2011, pp. A1, AA7 (report-
`ing that nearly half of the individuals shot by Los Angeles police after
`allegedly reaching for their waistbands turned out to be unarmed); Balko,
`
`When Unarmed Men Reach for Their Waistbands, Washington Post, Aug.
`29, 2014, https://www.washingtonpost.com/news/the-watch/wp/2014/08/
`29/when-unarmed-men-reach-for-their-waistbands/ (as last visited Apr.
`
`
`
`11, 2017) (collecting cases). That these cases are increasingly common
`
`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.
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`

`9
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` Cite as: 581 U. S. ____ (2017)
`
` SOTOMAYOR, J., dissenting
`
`
`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 im-
`
`
`munity in these same cases. The erroneous grant of sum-
`
`mary 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 to-
`
`ward addressing this asymmetry in Tolan. 572 U. S., at
`___ (slip op., at 11). We take one step back today.
`
`I respectfully dissent.
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