N.S. v. Kansas City Board of Police

1 Cite as: 600 U. S. ____ (2023)
S
OTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
N. S., ONLY CHILD OF DECEDENT, RYAN STOKES, BY AND
THROUGH HER NATURAL MOTHER AND NEXT FRIEND
,
BRITTANY LEE,
ET AL. v. KANSAS CITY
BOARD OF POLICE COMMISSIONERS,
ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No. 22–556. Decided June 30, 2023
The petition for a writ of certiorari is denied.
J
USTICE SOTOMAYOR, dissenting from the denial of certi-
orari.
The evidence in this case, taken in the light required at
this stage of litigation, tells a disturbing story. Ryan Stokes
was an unarmed Black man in the process of surrendering
to the police when Officer Thompson, without warning, shot
him in the back and killed him. Stokes was only suspected
of cell phone theft, there had been no reports he was violent
or threatening, and the unarmed Stokes was peacefully sur-
rendering to a different officer after a brief foot chase. This
arresting officer, Officer Straub, had already holstered his
gun because he could tell that Stokes did not present a risk.
Indeed, Stokes was facing Straub and lifting his hands to
surrender. Straub was therefore “shocked” when, without
any warning, Stokes was shot from behind by Thompson.
App. in No. 20–1526 (CA8), p. 2058.
Stokes’ daughter sued over her father’s killing and sought
a jury trial. The Court of Appeals for the Eighth Circuit,
however, ensured that this case never made it to a jury. At
the summary judgment stage, the court granted Thompson
qualified immunity on the ground that it was not clearly
established that Thompson had used excessive force when
he shot and killed Stokes. The court reached this result

2 N. S. v. KANSAS CITY BOARD OF POLICE
S
OTOMAYOR, J., dissenting
through a two-step that is all too familiar.
First, the Eighth Circuit improperly drew factual infer-
ences in the police officer’s favor. It is the jury’s role to de-
cide factual disputes over what happened and draw factual
inferences from the evidence presented. Summary judg-
ment deprives the jury of this crucial role, and thus “is ap-
propriate only if ‘the movant shows that there is no genuine
issue as to any material fact and the movant is entitled to
judgment as a matter of law.’” Tolan v. Cotton, 572 U. S.
650, 656–657 (2014) (per curiam) (quoting Fed. Rule Civ.
Proc. 56(a)). In assessing whether summary judgment is
warranted, “a court must view the evidence in the light
most favorable to the opposing party” and “adhere to the
fundamental principle that at the summary judgment
stage, reasonable inferences should be drawn in favor of the
nonmoving party.” Tolan, 572 U. S., at 657, 660 (internal
quotation marks omitted). This ensures that it is a jury
that will hear evidence and determine which story is credi-
ble, not a judge reading a paper record. This role of the jury
is particularly important in qualified immunity cases,
where the stakes are not just about the parties involved,
but whether there will be accountability when public offi-
cials violate the Constitution. Cf. Taylor v. Louisiana, 419
U. S. 522, 530 (1975) (the jury represents “the . . . judgment
of the community”).
Here, however, the Eighth Circuit did not follow this well-
settled law. In this case, as in many qualified immunity
cases, a key question at summary judgment was whether,
resolving factual disputes in favor of Stokes’ daughter, “a
jury could reasonably infer that [Stokes’ actions], in con-
text, did not amount” to a threat that he would “inflict
harm” on Straub. Tolan, 572 U. S., at 658. Yet in answer-
ing this question and in setting out the version of the facts
most favorable to Stokes’ daughter, the Eighth Circuit
failed to draw all factual inferences in the daughter’s favor.
To be sure, the court below correctly acknowledged that

3 Cite as: 600 U. S. ____ (2023)
S
OTOMAYOR, J., dissenting
the evidence showed the following when taking the daugh-
ter’s version of disputed facts: Stokes never had a gun, he
was lifting his hands to surrender, and Thompson “fired
without warning.” 35 F. 4th 1111, 1113–1114 (2022). The
Eighth Circuit then departed from the proper approach,
however, when it somehow concluded that even viewing
this evidence in the light most favorable to Stokes’ daugh-
ter, Thompson “faced a . . . choice here: use deadly force or
face the possibility that Stokes might shoot a fellow officer.”
Id., at 1114. The court drew this inference from two facts:
First, Stokes was raising his hands (while surrendering to
Straub) with his back turned toward Thompson; and sec-
ond, prior to surrendering, Stokes had briefly opened and
then closed the door to his friend’s car.
Yet even assuming an inference of danger could reasona-
bly be drawn in Thompson’s favor (which is debatable),
drawing such an inference here would still be inconsistent
with “the fundamental principle” that “reasonable infer-
ences should be drawn in favor” of Stokes’ daughter. Tolan,
572 U. S., at 660. A jury could instead infer that an officer
in Thompson’s position did not have an objective reason to
fear imminent violence from Stokes because: (1) no gun was
seen; (2) there was no reason to suspect Stokes was violent,
much less prepared to kill a police officer; (3) opening the
car door could have multiple nonthreatening explanations,
including hiding a stolen cell phone; and (4) Stokes was un-
warned, not disobeying any orders, and his actions showed
he was surrendering. A reasonable juror could have simi-
larly placed greater weight on the facts that tended toward
showing that Stokes’ actions, even from Thompson’s van-
tage point, were harmless. In other words, “[a] jury could
well have concluded that a reasonable officer would have
[seen Stokes’ actions] not as a threat” of imminent deadly
violence, but as what they were: the actions of an unarmed
man surrendering to the police. Id., at 659. The court be-
low may have disagreed with that inference, but it was the

4 N. S. v. KANSAS CITY BOARD OF POLICE
S
OTOMAYOR, J., dissenting
jury’s to make.
Second, the Eighth Circuit compounded this error
through its analysis of whether Thompson had violated
Stokes’ clearly established rights. This Court has clearly
established that an officer cannot use deadly force against
an unarmed suspect who is not behaving violently and does
not pose an immediate risk of serious physical injury or
death to others. See Tennessee v. Garner, 471 U. S. 1, 9–12
(1985). Indeed, in Garner the suspect was at least refusing
to follow a direct order, id., at 4, while here Stokes was
peaceably surrendering. Circuit precedent only further es-
tablished that officers cannot, without warning and without
an objective suspicion of imminent violence, shoot unarmed
people who are not resisting arrest. See Nance v. Sammis,
586 F. 3d 604, 610–611 (CA8 2009); Ngo v. Storlie, 495 F. 3d
597, 599–601, 603–605 (CA8 2007).
The court below dodged this precedent by identifying im-
material differences between the facts of cases. Yet factu-
ally identical cases are not required for law to be clearly es-
tablished. See, e.g., Hope v. Pelzer, 536 U. S. 730, 739
(2002). The evidence here, when properly interpreted at
this stage, matches the key holdings of those cases about
the use of lethal force against unarmed, unwarned people
who do not pose a danger to others.
Instead, the Eighth Circuit analogized the facts here to a
case involving “an armed robbery,” “a report of shots fired,”
and an officer ordering the suspect to stop before firing.
Thompson v. Hubbard, 257 F. 3d 896, 898 (CA8 2001). This
analogy was “[c]entral” to the court’s “conclusion.” 35
F. 4th, at 1114. Had the Eighth Circuit drawn the proper
inferences in the daughter’s favor, it simply could not have
plausibly concluded as a matter of law that “Officer Thomp-
son faced a similar choice here.” Ibid.
These dual mistakes—resolving factual disputes or draw-
ing inferences in favor of the police, then using those infer-
ences to distinguish otherwise governing precedent—have

5 Cite as: 600 U. S. ____ (2023)
S
OTOMAYOR, J., dissenting
become the calling card of many courts’ qualified immunity
jurisprudence. See, e.g., Lombardo v. St. Louis, 600 U. S.
___, ___–___ (2023) (S
OTOMAYOR, J., dissenting from denial
of certiorari) (slip op., at 2–4); Ramirez v. Guadarrama, 597
U. S. ___, ___–___ (2022) (S
OTOMAYOR, J., dissenting from
denial of certiorari) (slip op., at 2–3); James v. Bartelt, 595
U. S. ___, ___–___ (2021) (S
OTOMAYOR, J., dissenting from
denial of certiorari) (slip op., at 1–2); Kisela v. Hughes, 584
U. S. ___, ___, ___ (2018) (S
OTOMAYOR, J., dissenting) (slip
op., at 2, 13); Mullenix v. Luna, 577 U. S. 7, 23–25 (2015)
(S
OTOMAYOR, J., dissenting).
The result is that a purportedly “qualified” immunity be-
comes an absolute shield for unjustified killings, serious
bodily harm, and other grave constitutional violations. Of-
ficers are told “that they can shoot first and think later,”
because a court will find some detail to excuse their conduct
after the fact. Kisela, 584 U. S., at ___ (S
OTOMAYOR, J., dis-
senting) (slip op., at 15). The public is told “that palpably
unreasonable conduct will go unpunished.” Ibid. And sur-
viving family members like Stokes’ daughter are told that
their losses are not worthy of remedy. I would summarily
reverse the court below to break this trend. It is time to
restore some reason to a doctrine that is becoming increas-
ingly unreasonable. If this Court is unwilling to do so, then
it should reexamine its judge-made doctrine of qualified im-
munity writ large.