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May 5, 2014

SCOTUS summarily reverses grant of summary judgment to police in excessive force suit

The Supreme Court this morning issued a summary reversal in an intriguing little case from the Fifth Circuit.  Here is how the per curiam opinion in Tolan v. Cotton, No. 13-551 (S. Ct. May 5, 2014) (available here) gets started:

During the early morning hours of New Year’s Eve, 2008, police sergeant Jeffrey Cotton fired three bullets at Robert Tolan; one of those bullets hit its target and punctured Tolan’s right lung. At the time of the shooting, Tolan was unarmed on his parents’ front porch about 15 to 20 feet away from Cotton.  Tolan sued, alleging that Cotton had exercised excessive force in violation of the Fourth Amendment.  The District Court granted summary judgment to Cotton, and the Fifth Circuit affirmed, reasoning that regardless of whether Cotton used excessive force, he was entitled to qualified immunity because he did not violate any clearly established right.  713 F. 3d 299 (2013).  In articulating the factual context of the case, the Fifth Circuit failed to adhere to the axiom that in ruling on a motion for summary judgment, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.”  Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 255 (1986).  For that reason, we vacate its decision and remand the case for further proceedings consistent with this opinion.

Intriguingly, Justice Alito (joined by Justice Scalia) write separately to complain about this ruling only being a form of error correction and "that the granting of review in this case sets a precedent that, if followed in other cases, will very substantially alter the Court’s practice."

May 5, 2014 at 10:33 AM | Permalink


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The police is the agent of the prosecutor.

I have opposed tort liability as a form of stealthy industrial planning where know nothing lawyer dumb assess set policy as to which sectors of the economy will grow or be eradicated. Anyone favoring the shrinkage of government should support the elimination of all its immunities. It will disappear, as the lawyer has made so many other sectors disappear, manufacturing, obstetrics, the KKK, the church, the schools, the patriarchal family, all through tort liability.

The prosecution and its agents are doing such an awful job, torts can only help, in their case. They should be liable for excessive force, and for failure to prosecute or arrest. Lady has a judge's order to keep husband away. Police is there. Refuse to arrest him for clear violation of the order. He murders her. They are immune this Court held. Unbearable. Unjust. Unlawful.

So this decision is an ort thrown in the right direction for a change.

Posted by: Supremacy Claus | May 5, 2014 10:47:14 AM

Off topic. Prof. Berman should privately ask Bill Otis to return. And defense bar people here should refrain from personal remarks, which make them look cheap and desperate. He was the only licensed lawyer arguing on behalf of substantive victim interests in this blog.

All you Anons, ?'s, and other left wing a-holes should show some grace and join me in petitioning Prof. Berman to do so.

Posted by: Supremacy Claus | May 5, 2014 10:51:45 AM

Bill always has an open invitation, and I have told him he is missed here.

Posted by: Doug B. | May 5, 2014 11:53:50 AM

I for one, am enjoying the extended time off Bill has decided to take recently.

Posted by: Randy | May 5, 2014 12:36:30 PM

On topic, the complaint of "we don't do error correction" is almost always the last resort of someone who wants the end result when he knows it is contrary to the law. That's true on both sides. The Supreme Court reversed a Ninth Circuit decision for failing to give proper AEDPA deference and Justice Ginsberg dissented saying "why are we focusing on the specific facts of this case?" IMO, a Per Curiam decision is the perfect time to engage in specific error correction when a court misapplies the law. It's necessary for the Supreme Court's supervisory role. Otherwise, Courts can always evade Supreme Court precedent by merely pretending to apply it.

This case is a clear cut example where the lower courts misapplied the relevant legal standards in order to find in favor of the defendant. If the defendant should prevail, it should be under the correct legal standard.

Posted by: Erik M | May 5, 2014 1:35:36 PM

While I disagree with Bill on almost everything, I do think it important to have a mix of voices.

Posted by: AnonymousOne | May 5, 2014 2:15:46 PM

Justice Alito is correct that civil cases in the various courts of appeals presenting questions of whether the evidence is enough (or not enough) to avoid summary judgment are "utterly routine." The Sixth Circuit has 15 such cases on its docket for this week.

Posted by: Robert L. Abell | May 5, 2014 3:55:31 PM

personally from what I read the only error correction needed to be done would be the summary execution of this gov't fuckup attemted murdering son of a bitch and his bosses and anyone who supported him including those fuckups in the justice system.

yes I said FUCKUP.

based on the decision of the court.

"The following facts, which we view in the light mostfavorable to Tolan, are taken from the record evidence and the opinions below. At around 2:00 on the morning of December 31, 2008, John Edwards, a police officer, was onpatrol in Bellaire, Texas, when he noticed a black Nissan sport utility vehicle turning quickly onto a residential
street. The officer watched the vehicle park on the side of
the street in front of a house. Two men exited: Tolan and
his cousin, Anthony Cooper.
Edwards attempted to enter the license plate number of
the vehicle into a computer in his squad car. But he keyed
an incorrect character; instead of entering plate number
696BGK, he entered 695BGK. That incorrect number
matched a stolen vehicle of the same color and make. This
match caused the squad car’s computer to send an automatic
message to other police units, informing them that
Edwards had found a stolen vehicle.
Edwards exited his cruiser, drew his service pistol and
ordered Tolan and Cooper to the ground. He accused
Tolan and Cooper of having stolen the car. Cooper responded,
“That’s not true.” Record 1295. And Tolan explained,
“That’s my car.” Ibid. Tolan then complied with
the officer’s demand to lie face-down on the home’s front
As it turned out, Tolan and Cooper were at the home
where Tolan lived with his parents. Hearing the commotion,
Tolan’s parents exited the front door in their pajamas.
In an attempt to keep the misunderstanding from
escalating into something more, Tolan’s father instructed
Cooper to lie down, and instructed Tolan and Cooper to
say nothing. Tolan and Cooper then remained facedown.
Edwards told Tolan’s parents that he believed Tolan and
Cooper had stolen the vehicle. In response, Tolan’s father
identified Tolan as his son, and Tolan’s mother explained
that the vehicle belonged to the family and that no crime
had been committed. Tolan’s father explained, with his
hands in the air, “[T]his is my nephew. This is my son.
We live here. This is my house.” Id., at 2059. Tolan’s
mother similarly offered, ““[S]ir this is a big mistake. This
car is not stolen. . . . That’s our car.” Id., at 2075.
While Tolan and Cooper continued to lie on the ground in silence, Edwards radioed for assistance. Shortly thereafter, Sergeant Jeffrey Cotton arrived on the scene anddrew his pistol. Edwards told Cotton that Cooper andTolan had exited a stolen vehicle. Tolan’s mother reiter- ated that she and her husband owned both the car Tolan had been driving and the home where these events were unfolding. Cotton then ordered her to stand against thefamily’s garage door. In response to Cotton’s order, Tolan’s mother asked, “[A]re you kidding me? We’ve lived her[e] 15 years. We’ve never had anything like this happen before.” Id., at 2077; see also id., at 1465.
The parties disagree as to what happened next. Tolan’s mother and Cooper testified during Cotton’s criminal trial1 that Cotton grabbed her arm and slammed her against thegarage door with such force that she fell to the ground. Id., at 2035, 2078–2080. Tolan similarly testified thatCotton pushed his mother against the garage door. Id., at 2479. In addition, Tolan offered testimony from his mother and photographic evidence to demonstrate that Cotton used enough force to leave bruises on her arms and backthat lasted for days. Id.,"

so basically one gov't fuckup put in the wrong data. then refused to listend to a 3rd party at the scene and identified the fucking vehicle as theres. Then gov't fuckup number 2 shows who and assaults one of the 3rd party who happened to be the MOTHER of one of the individuals being illegally harassed by said gov't fuckups..

That right there would have gotten them KILLED if it had been my family. No matter who you think you are touch my family and you DIE!. It's that fucking simple.

then we go on.

"at 2078–2079, 2089–2091. Bycontrast, Cotton testified in his deposition that when he was escorting the mother to the garage, she flipped her arm up and told him to get his hands off her. Id., at 1043. He also testified that he did not know whether he left bruises but believed that he had not. Id., at 1044.
The parties also dispute the manner in which Tolanresponded. Tolan testified in his deposition and duringthe criminal trial that upon seeing his mother being pushed, id., at 1249, he rose to his knees, id., at 1928. Edwards and Cotton testified that Tolan rose to his feet. Id., at 1051–1052, 1121.
Both parties agree that Tolan then exclaimed, fromroughly 15 to 20 feet away, 713 F. 3d, at 303, “[G]et your fucking hands off my mom.” Record 1928. The partiesalso agree that Cotton then drew his pistol and fired three shots at Tolan. Tolan and his mother testified that these shots came with no verbal warning. Id., at 2019, 2080. One of the bullets entered Tolan’s chest, collapsing his right lung and piercing his liver. While Tolan survived, he suffered a life-altering injury that disrupted his buddingprofessional baseball career and causes him to experience pain on a daily basis."

Sounds to me like attempted fucking murder. Not accessive fucking force.

from where I sit both this gov't fuckup and those even bigger fools on the 5th appeals need the same treatment. summary execution.

Posted by: rodsmith | May 5, 2014 6:19:04 PM

Sounds reasonable. (What's the emoticon for an eye-roll?)

Posted by: Wayne-O | May 6, 2014 1:17:26 AM

1. Re Bill Otis, Esq.
I believe WE are the losers by Bill's absence •

2. Re "excessive force" by police against civilian v civilian against police

[line feed placing altered by DJB 5/6/14]

Both parties agree that Tolan then exclaimed, from roughly 15 to 20 feet away, 713 F. 3d, at 303, “[G]et your fucking h***s off my mom.” Record 1928.

The parties also agree that Cotton then drew his pistol and fired three shots at Tolan. Tolan and his mother testified that these shots came with no verbal warning. Id., at 2019, 2080.

One of the bullets entered Tolan’s chest, collapsing his right lung and piercing his liver.

While Tolan survived, he suffered a life-altering injury that disrupted his budding professional baseball career and causes him to experience pain on a daily basis.
[line feed placing altered by DJB 5/6/14]

Shooting an unarmed , youngster for reacting to perceived assault against his mother by claiming that officer's h***s somehow were engaged in coital contact with his mother ;; to me , seems a tad harsh and totally wrong •

Another household family member had been monitoring the situation from inside the home, AND upon witnessing the first shot fired by officer Cotton , said member fired a single non-fatal shot into officer Cotton , collapsing his lung and piercing his liver ? ! ‼

THEN would the shooter be offered qualified or absolute immunity in a civil action against Tolan ?
The threat by officer Cotton against Tolan [ bullet into body ] is far more real than the threat by Tolan against officer Cotton [the sound of words against the officer's tender eardrums ] •

I respectfully and kindly submit were I to witness such an officer shooting a sibling or child or parent of mine and I were armed with a tool to stop his attack by any means necessary , I would not be uncomfortable with the use of deadly force under the premise that a WOUNDED armed officer would continue to be a threat against an unarmed , harmless and helpless relative •
DEAD shooters STOP shooting at harmless unarmed innocents •

DJB a.k.a Kind Soul®
2014-05-06 Tuesday 0912 EDT
Kind Soul is a service mark registered with the Ohio Secretary of State (expiring near August end 2017)
Nemo Me Impune Lacessit

Posted by: Docile Jim Brady - Columbus OH 43209 | May 6, 2014 9:12:41 AM

I'm with you jim it's long past time these gov't fuckups start getting a taste of their own conduct. They think they can shoot or kill us for pretty much anything. time to return the favor. Of course seems a lot of the public agrees with me or police shootings wouldn't be going up and up and up.

Posted by: rodsmith | May 6, 2014 2:24:28 PM

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