Justice Alito Takes Time From His Leisurely Schedule To Complain About A Cop Losing A Lawsuit

The Supreme Court moves at a glacial pace. Sure, it’s got a bit more to do now with the Trump Administration creating new constitutional crises on a daily basis, but for the most part, it’s willing to sit back and let cases pile up until the conservative majority can undermine rights by issuing an 82-page op-ed that makes it clear the law will be whatever the justices want it to be.

A lot of stuff ends up on the “shadow docket.” Cases rejected are listed, along with the occasional op-ed that may or may not explain why most justices voted the case down, but amply explains why a justice or two felt aggrieved by this slight.

Every so often, the nation’s top court will issue an opinion that’s not actually an opinion — i.e., it has no binding effect — but definitely looks like an opinion because it’s not just a wall of text inserted into an already lengthy list of rejections.

That’s what has happened here in a case where a jury found San Jose PD officer Michael Pina personally culpable for shooting and killing an unarmed man. Here’s how that denial of certori hit Justice Samuel Alito so hard he was temporarily roused from his SCOTUS slumber:

U.S. Supreme Court Justice Samuel A. Alito Jr. slammed the 9th Circuit Court of Appeals this week over its handling of a California police shooting case, calling lower courts’ decision to award damages to the victim’s widow and children “a flagrant error.”

“The courts below badly fumbled this basic tenet of our qualified immunity doctrine” by relying in part on a 2022 appellate decision to rule the officer was not shielded from liability in the 2017 shooting, Alito wrote, dissenting in the Supreme Court’s decision to not take the case.

Jacob Dominguez was unarmed and complying with officers’ instructions when San Jose Police Sgt. Michael Pina shot and killed him during a traffic stop in 2017. His head, shoulders and left arm were above the frame of the driver’s side door when he was shot. Police were attempting to arrest him for a gas station robbery, according to civil court records, and there was no evidence he was armed during the incident.

Dominguez’s widow sued Pina and the department, winning $1 million in damages in 2023 after a federal civil jury found the officer had used excessive force.

There are a few things in play here. But I think the most important thing is the final sentence: this was put in front of a jury and the jury decided Pina had used excessive force. That’s the way courts are supposed to work. What should never have become standard operating procedure in US courts is the problem that plagues cases like these: qualified immunity. Qualified immunity allows cops to escape lawsuits long before they’re presented to juries. And, thanks to the Supreme Court, it’s never been easier to get out of lawsuits well before anyone but the judge and a couple of lawyers have done anything more than write and read a handful of court filings.

This one went the distance. The officer appealed the Ninth Circuit Appeals Court decision that upheld the jury’s decision. The Supreme Court decided to let the jury’s decision stand. Justice Alito (and his co-signer, [exasperated sigh] Clarence Thomas) disagree.

Alito and his silent partner argue the Ninth Circuit handled this incorrectly by citing precedent that wasn’t actually precedent at the time Michael Pina’s shooting of Jacob Dominguez took place.

And, as much as I hate to admit it, Alito is correct. That case can’t be cited as supporting precedent. But that’s what happened in this case. This is from the Ninth Circuit Appeals Court ruling denying Pina’s appeal of the jury decision, which was basically just an argument that qualified immunity excused his actions.

[A] reasonable jury could have found that Dominguez did not appear to be reaching for a weapon when Officer Pina shot him. The jury’s answer to the special interrogatory did not specify how far Dominguez dropped his hands, how far he leaned forward, or whether he raised his hands again. The jury heard evidence that Dominguez’s head, upper shoulders, and left arm were raised above the windowsill when he was shot. The jury also heard testimony that no evidence  showed Dominguez possessed a gun during the armed robbery, that officers never saw a weapon in Dominguez’s hands, and that there was no weapon inside the car. It also is undisputed that Dominguez was not carrying a weapon at any point during the encounter. A reasonable jury could thus infer, notwithstanding the special interrogatory, either (a) that Dominguez did not appear to be reaching for a weapon or (b) it would not make sense for Dominguez to appear to be reaching for a weapon, because there was no weapon. See Cruz v. City of Anaheim, 765 F.3d 1076, 1079 (9th Cir. 2014). In such circumstances, deadly force is not justified. See Peck v. Montoya, 51 F.4th 877, 888 (9th Cir. 2022) (when a suspect is “not armed-and [is] not about to become armed-he [does] not ‘pose[ ] an immediate threat to the police or the public, so deadly force is not justified.'” (quoting Cruz, 765 F.3d at 1078-79)).

The case in bold print above was handled in 2022. The shooting of Dominguez occurred in 2017. Precedent is almost never retroactive, and definitely not at all when it comes to qualified immunity determinations.

That’s what Alito gets hung up on in his objection [PDF] to the Supreme Court’s refusal to review this case.

The lower courts made a serious misstep in their analysis. Even if it is assumed that controlling Circuit precedent may constitute clearly established law, Peck, a 2022 decision, was not the law in the Ninth Circuit when the events of this case unfolded in 2017. As such, Peck, “decided after the shooting at issue, is of no use in the clearly established inquiry.”

Even if the Ninth Circuit had not chosen to cite a later case as precedent, it couldn’t have relied on the sub-quoted case (Cruz v. City of Anaheim, 2014) because even though it provided a quote that directly related to the Ninth Circuit’s defense of the jury’s finding, the ruling in that case actually said something else entirely:

If Cruz itself could serve as the basis for clearly established law, then the Ninth Circuit presumably could have cited it directly instead of shunting it to a footnote. But unsurprisingly, Cruz alone does not suffice. In that case, officers stopped an allegedly armed suspect in his vehicle and used deadly force when the suspect reached for his waistband. There, the Ninth Circuit held that “[i]t would be unquestionably reasonable for police to shoot a suspect . . . if he reaches for a gun in his waistband, or even if he reaches there for some other reason.”

[…]

Read in its proper light, Peck is not a restatement of the law set forth in Cruz. If Peck is removed from the picture, the lower courts would have failed to identify any clearly established law that Officer Pina allegedly violated.

That means Alito is right about the law and the Ninth Circuit got this wrong. But that’s only in terms of established case law. There’s nothing “right” about giving cops a free pass for rights violations just because established case law doesn’t contain the proper “Aurora Borealis in Principal Skinner’s kitchen” level of specificity. Anything that looks like a probable rights violation should be placed in front of a jury. Cops that don’t like those odds might not violate rights so casually if they know the most probable outcome is a jury trial, rather than an early dismissal.

Alito may be technically correct, but the qualified immunity doctrine is still nothing more than a law enforcement cheat code. The Ninth screwed up here. Fortunately for the family of the man killed by Officer Pina, the Supreme Court as a whole didn’t feel this case was worth reviewing. And Alito could have saved his (printed) breath for something more than berating a litigation unicorn for having the temerity to exist.