Summary judgment (i.e., "quick" judgment) has become the bugaboo for employment lawsuits over the past 20 years. I have discussed how the over-use of summary judgment has been particularly difficult for employment cases. Well, that same analysis applies to all civil rights cases. In Tolan v. Jeffrey Wayne Cotton, No. 13-551 (2014), the U.S. Supreme Court essentially fussed at the Fifth Circuit for not following precedent regarding summary judgment. In Tolan, the plaintiff accused a Bellaire, Texas policeman of abusing his civil rights. Sgt Cotton shot Robert Tolan when the officer mistakenly thought Mr. Tolan was driving a stolen vehicle. A second officer entered the wrong license plate number (off by one digit) and the police wrongly assumed Mr. Tolan and his companion, both black, were driving a stolen SUV. Yet, the pair of alleged thieves pulled up to their own driveway in suburban Houston.

The two Bellaire police officers accosted the young Mr. Tolan and his companion ( cousin) in Mr. Tolan’s driveway, where he lived with his parents. The two boys came home late. The parents came out of the house and proclaimed the younger Tolan’s innocence. But, Sgt Cotton allegedly wrestled Mrs. Tolan against the garage door, at which point, Robert Tolan told him to get his "f—ing hands off his mom." Sgt. Tolan then shot Robert Tolan three times. 

Like all civil rights cases, the devil is in the details. Mrs. Tolan says she was shoved against the garage door. Sgt. Cotton says he "escorted" her to the garage door. Sgt Cotton says the porch where the elder Mr. Tolan stood was "dimly lit." Mr. Tolan disagreed and ponted out the two floodlights on the driveway. The second officer says the younger Robert Tolan was crouching, ready to jump when he told the officer to take his hands off his mother. Robert Tolan, however, says he was kneeling and "wasn’t going anywhere." Both officers says Robert Tolan shouted. The younger Tolan denies that he raised his voice. 

These are critical facts necessary to any understanding of what happened that night in a middle class neighborhood.  One cannot know to any degree whether Sgt Cotton felt legitimate fear or not unless one first determines who is telling the truth about the atmosphere that night. That is why summary judgment should not be granted in such a situation. The differences in facts are material to the case and the differences are stark. Yet, the Fifth Circuit did just that. The appellate court affirmed the finding of summary judgment in a decision written by Judge Barksdale. The appellate court essentially weighed the evidence and viewed them in the light most favorable to the movant. That approach violates fundamental summary judgment law. 

The Supreme Court overturned the Fifth Circuit result, saying there is too great a difference in the facts to justify summary judgment. In a per curiam decision (usually reserved only for apparent or obvious decisions), the court rightly told the Fifth Circuit it was abusing summary judgment law in reaching this result. 

Justice Scalia wrote a concurrence saying that while he did not think this case justified Supreme Court attention, yes, the Fifth Circuit did not draw available inferences in favor of the non-movant, as it should have. Justice Scalia pointed out that most civil appeals address whether the evidence for or against summary judgment was sufficient. I cannot disagree with Justice Scalia, but surely the widespread abuse of summary judgment precedent must be addressed sometime. See U.S. Supreme decision here.

Far too many cases have been decided by the Fifth Circuit (and other courts) weighing evidence and giving no credence to plaintiff oriented witnesses, including the plaintiff. Yes, the plaintiff him/herself is a witness just as much as anyone else. I have read too many case summaries where it was apparent the court failed to credit the non-movant’s version of events. 

As the Supreme Court pointed out, that is why we have jury trials – to address differences in key factual details.