Sonia Sotomayor dissents in Mullenix police shooting case.

Sonia Sotomayor Issues a Stunning Dissent Against Police Brutality 

Sonia Sotomayor Issues a Stunning Dissent Against Police Brutality 

The law, lawyers, and the court.
Nov. 9 2015 3:40 PM

Sonia Sotomayor Takes a Stand Against Police Brutality

In a stunning dissent, the justice condemns the “culture” of deadly force.

Sonia Sotomayor
U.S. Supreme Court Justice Sonia Sotomayor spoke out about our culture of police violence. Above, she speaks at the Museo del Barrio in New York, Jan. 19, 2013.

Photo by Keith Bedford/Reuters

On the night of March 23, 2010, trooper Chadrin Mullenix of the Texas Department of Public Safety stood on an overpass debating what to do. Israel Leija Jr., an allegedly armed and intoxicated fugitive, was fleeing the police in a high-speed chase a few miles away. Mullenix planned to set up spike strips—but as Leija approached, Mullenix decided to shoot at his car instead, a tactic in which he had no training. His supervisor, Sgt. Robert Byrd, responded that Mullenix should “stand by” rather than shooting and “see if the spikes” laid down the road “work first.”

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

Mullenix ignored the order and fired six shots at Leija’s car as it passed underneath—seconds before the vehicle hit the spike strips designed to stop it. Four of his bullets penetrated Leija’s head, shoulders, and neck. Leija was killed.


Coincidentally, Mullenix had been singled out for a pep talk earlier that very day for not being “proactive” enough on the job. When he saw his supervisor after killing Leija, Mullenix quipped: “How’s that for proactive?”

Leija’s mother filed a civil rights suit against Mullenix, alleging that the trooper violated her son’s Fourth Amendment rights by using “unreasonable force.” She had a great case: A Department of Public Safety shooting review found that Mullenix had acted recklessly, lacking “sufficient legal or factual justification to use deadly force.” On Monday, however, the Supreme Court handed Mullenix a huge legal victory, holding that his actions did not violate “clearly established constitutional law” and granting him qualified immunity. The decision provides yet more evidence that the court’s “unreasonable force” standard has been defanged to provide cover to reckless officers.

The case also demonstrates that when it comes to understanding the systemic flaws and violent behavior of America’s criminal justice system, there’s no one quite like Justice Sonia Sotomayor.

Every justice except Sotomayor, who dissented from the ruling, and Justice Antonin Scalia, who independently concurred, appears to have joined the court’s brief, unsigned decision granting Mullenix immunity. (Sorry, Notorious R.B.G. groupies, but that includes Justice Ruth Bader Ginsburg, who has a bit of a law-and-order streak.) The majority opinion provides a classic retrospective rationalization of Mullenix’s actions, leaning heavily on a brief by the National Association of Police Organizations, a pro–law-enforcement lobbying group. Mullenix, the court explained, could only be denied qualified immunity if the unreasonableness of his actions were “beyond debate.” The Supreme Court has repeatedly declared that officers may not use deadly force against a fleeing suspect unless he poses a “significant threat of violence,” and despite what the court ruled, it’s not at all obvious that Leija posed such a threat that Mullenix had to shoot at him seconds before he hit the spike strips.


But, the majority wrote on Monday, the appropriateness of deadly force “involving car chases” remains “hazy,” with various circuit courts interpreting the deadly force standard differently in the car chase context. Because “qualified immunity protects actions in the hazy border between excessive and acceptable force,” the court ruled, Mullenix gets the benefit of the doubt.

Scalia went even further, explaining that he “would not describe what occurred here as the application of deadly force in effecting an arrest” because Mullenix, despite shooting six bullets at the car as it passed beneath him, did not clearly intend to kill Leija. To prove his point, Scalia cites a hypothetical straight out of Looney Tunes:

It does not assist analysis to refer to all use of force that happens to kill the arrestee as the application of deadly force. The police might, for example, attempt to stop a fleeing felon’s car by felling a large tree across the road; if they drop the tree too late, so that it crushes the car and its occupant, I would not call that the application of deadly force. Though it was force sufficient to kill, it was not applied with the object of harming the body of the felon.

Ultimately, it fell to Sotomayor—as it so often does—to remind her colleagues that individuals actually do have real constitutional protections against police intrusion. “This Court’s precedents,” Sotomayor wrote, “clearly establish that the Fourth Amendment is violated unless the ‘governmental interests’ in effectuating a particular kind of seizure outweigh the ‘nature and quality of the intrusion on the individual’s Fourth Amendment interests.’ ” The government certainly had a strong interest in stopping Leija—but was that interest so strong as to justify shooting Leija before he hit the spikes? Sotomayor says no, concluding that “Mullenix ignored the longstanding and well-settled Fourth Amendment rule that there must be a governmental interest not just in seizing a suspect, but in the level of force used to effectuate that seizure.”

The real power of Sotomayor’s opinion lies in its last paragraph, which bluntly indicts the “culture” that led to Mullenix’s actions (citations removed):

When Mullenix confronted his superior officer after the shooting, his first words were, “How’s that for proactive?” (Mullenix was apparently referencing an earlier counseling session in which Byrd suggested that he was not enterprising enough.) The glib comment does not impact our legal analysis; an officer’s actual intentions are irrelevant to the Fourth Amendment’s “objectively reasonable” inquiry. But the comment seems to me revealing of the culture this Court’s decision supports when it calls it reasonable—or even reasonably reasonable—to use deadly force for no discernible gain and over a supervisor’s express order to “stand by.” By sanctioning a “shoot first, think later” approach to policing, the Court renders the protections of the Fourth Amendment hollow.

This stirring passage could easily have been delivered at an anti–police violence protest. That it was penned by a Supreme Court justice only adds to its intensity. As my colleague Leon Neyfakh recently wrote, courts have been whittling down constitutional protections against police violence for decades. That fact seems suddenly relevant in the face of seemingly endless police shootings. In her dissent Monday, Sotomayor took a courageous stand against such violence, directly indicting “shoot first, think later” police culture. Her words couldn’t vindicate Leija’s constitutional rights. But they’ll send a clear message to police violence protestors that they have at least one ally on the highest court in the land.