The Supreme Court declined to grant cert in Salazar-Limon v. City of Houston, a qualified immunity case in which the primary issue was whether summary judgment was properly granted. This was a petty question for so august a court, which constrains its limited resources to bigger issues than did the court below get it wrong.

In concurrence with the denial, Justice Sam Alito argues that the plaintiffs raised no material issues of fact.

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.

Salazar-Limon says he turned away from the cop, was ordered to turn around and then, essentially, immediately shot. Alito is right, he never specifically says he didn’t reach for his waistband.

But more importantly, Alito shrugs off the significance of the possibility that the Court should spend its time tweaking potentially mistaken decisions.

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.

Right or wrong may be fine for lesser courts, but the Supreme can’t get their hands dirty with such trivialities. Except, as Justice Sonia Sotomayor says in dissent, that’s malarkey.

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.

In other words, these petty little errors go uncorrected when QI is rejected, but not when it makes cops sad. Not always, but most of the time.

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.

The dissent was joined by Justice Notorious RBG. The other justices of the “liberal wing” were busily inspecting the hems of their robes, presumably because Justice Gorsuch did something horrible to them.

But Justice Sotomayor, whose tenure on the Second Circuit showed little of the empathetic recognition she’s since gleaned in D.C., takes the facts of the case a step beyond the technical requirements for summary judgment.

“The question whether the officer used excessive force in shooting Salazar-Limon thus turns in large part on which man is telling the truth,” Sotomayor wrote in her opinion, joined by Justice Ruth Bader Ginsburg. “Our legal system entrusts this decision to a jury sitting as finder of fact, not a judge reviewing a paper record.”

Well, yeah, but only when there’s a material question of fact for the jury to decide. But was there?

In a footnote, Sotomayor added that the “increasing frequency” of police officers shooting unarmed suspects going for “empty waistbands” makes it all the more imperative for jurors to be the ones deciding who’s more credible in these kinds of cases.

Granted, it’s just a footnote. But it’s one hell of a footnote,

2 Some commentators have observed the increasing frequency of incidents in which unarmed men allegedly reach for empty waistbands when facing armed officers. See Faturechi, Deputies’ Shooting of Unarmed Suspects Rise, L. A. Times, Sept. 23, 2011, pp. A1, AA7 (reporting 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.

Yes, you read that right. That “Balko” is none other than Radley, who has been writing about such “trends” for a very long time. Is reaching for their waistband, or furtive gestures, or any variation on a theme the new dropsy? When magic words work well enough to make a bad shoot justified, and their mere incantation is sufficient to leap the hurdle of qualified immunity and the tyranny of a jury, they’re just too easy to resist. Stop resisting.