There's a dissent in this Section 1983 police excessive force case. The panel consists of Judges O'Scannlain, Trott and Clifton. One need not speculate as to the identity of the dissenter.
It's a fascinating case. Judge Clifton's dissent raises an interesting point that I should have -- but haven't fully -- considered previously: that in many police excessive force cases (as well as others), the sole surviving witnesses are the defendants themselves. Accordingly, on a summary judgment motion, a core issue involves the degree of reasonable inferences necessary before a jury reasonably could conclude that the officers' story lacked credibility. That's a darn good point, and it's one that I didn't sufficiently appreciate until I was reminded of it by Judge Clifton's dissent.
One can summarize Judge Clifton's dissent by saying that there was sufficient evidence here for a reasonable jury to find that the police officer deliberately shot the unarmed decedent in the head at point-blank range when the vehicle the decedent was driving was travelling four miles an hour. The majority says that, as a matter of law, that's not excessive force.
Read it and see if you agree.
