Justices Samuel Alito and Clarence Thomas on Monday dissented from the Supreme Court’s refusal to take up a case that they said forces police officers to create a separate set of rules for racial minorities.

“It is dangerous to allow an individual to be treated differently based on statistics, studies, or expert testimony that purports to show that members of the racial or ethnic group to which he belongs are more likely to act in a certain way than are members of other groups,” Alito wrote on behalf of himself and Thomas. “Here, the special treatment helped the individual; in other situations it will not.”

The case, U.S. v. Donte J. Carter, involved a Black man whose firearm and theft convictions were vacated after the D.C. Court of Appeals held that police seized him before they had reasonable suspicion. Officers later recovered a .40-caliber pistol from Carter’s pants and the government said the gun had been stolen from an FBI agent’s vehicle.

According to the D.C. court, “black Americans like [Carter] are ‘especially distrustful of law enforcement’” and therefore “‘less likely’ than other people ‘to terminate a police encounter’ due to skepticism that any attempt to exercise their constitutional rights will be respected.” 

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The D.C. court reasoned that Carter’s race was relevant to whether a reasonable person in his position would have felt free to end the police encounter. It ruled that the encounter effectively became a seizure, and that such an action was unlawful because police officers hadn’t established reasonable suspicion before subjecting him to it.

Alito and Thomas argued that the D.C. ruling effectively forces law enforcement to treat people differently based on their race, something precedent established by the Supreme Court prohibits.

“Under the test, officers will need to quickly assess a person’s race, and if officers and courts must craft special rules for black persons, what about dark-skinned Latinos, other Latinos, and members of other minority groups?” Alito continued. “We have said that our ’Constitution is color-blind.’ It ‘almost never’ allows government actors to treat persons differently based on their race.”

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To support his claims, Alito cited Students for Fair Admissions v. Harvard and Louisiana v. Callais and Shaw v. Reno. 

“And we have rejected the proposition that the Constitution permits an individual to be treated differently based on a ‘perception that members of the same racial group — regardless of their age, education, economic status, or the community in which they live — think alike,’” Alito wrote, citing Shaw v. Reno.

This appears to be a direct challenge to the D.C. Court of Appeals, which lawyers representing the United States argued forced police officers to assume that all black people have the same attitudes toward police officers and would therefore feel uncomfortable exercising constitutional rights in their presence.

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Carter, the individual Alito noted was helped by the case, initially lied to officers by answering in the negative when approached and asked if he was carrying a weapon.

The police then asked Carter to pull his pants up, at which point they noticed an L-shaped bulge which was later identified as a .40-caliber pistol that had been stolen from a federal agent’s vehicle.

WASHINGTON — The Supreme Court refused Monday to block an excessive force lawsuit against a former Los Angeles Police Department officer who shot and killed a knife-wielding man whose speeding truck had slammed into several cars near downtown Los Angeles.

The court turned down an appeal petition from the Los Angeles city attorney’s office, over the objections of Justices Clarence Thomas and Samuel A. Alito Jr.

Litigation over the six-second shooting incident has extended over six years.

Federal judges in California agreed that Officer Toni McBride had reason to fire four shots at the suspect in April 2020 but not the two final shots that killed him.

Daniel Hernandez was alleged to be under the influence of methamphetamine when he got out of his truck and walked toward the officer. She repeatedly ordered him, “Drop the knife,” as he approached.

But the 9th Circuit Court of Appeals, by a 6-5 vote, ruled last year that a jury could decide the officer went too far when she fired two final shots after the suspect had fallen to the ground.

The majority reasoned that in the one-second pause between shots four and five, McBride “could have and should first reassessed the situation” and possibly concluded the suspect no longer posed a danger.

That ruling would have sent the case to a trial.

But the Los Angeles city’s attorney’s office appealed to the Supreme Court in October and urged the justices to review and reverse the 9th Circuit’s decision.

The city’s attorneys said the appeals court failed to consider the “totality of circumstances from the perspective of a reasonable officer on the scene” and its decision refused “to allow for reasonable mistakes in fast-moving, life-threatening encounters.”

UC Berkeley law dean Erwin Chemerinsky filed a response for the Hernandez family. He urged the court to stand aside and let a jury decide whether the officer’s actions were reasonable.

“The 9th Circuit simply held that it should be for the jury to resolve the factual dispute over what happened,” he said.

The justices had considered the appeal since late February before finally turning it down without comment on Monday.

The Supreme Court has repeatedly ruled police officers may be sued for unreasonable searches and seizures only if they are shown to have knowingly violated clearly established law.

However, this doctrine of “qualified immunity” has divided judges over whether a particular rule or limit has been clearly established.

The 9th Circuit majority said shooting a fallen suspect crosses the line.

“It has been clearly established for more than a decade that when an officer shoots and wounds a suspect, and he falls to the ground, the officer cannot continue to shoot him, absent some indication that he presents a continuing threat,” wrote Judge Jacqueline H. Nguyen.

“A fallen and injured suspect armed only with a bladed instrument does not present a continuing threat merely because he makes nonthreatening movements on the ground. … Under such circumstances, a jury could reasonably find that she employed constitutionally excessive force. If so, she is not entitled to qualified immunity,” she said.

The five dissenters said the officer made a reasonable split-second decision.

Judge Ryan Nelson said McBride “was justified in shooting Daniel Hernandez to alleviate the risk that he posed when he advanced toward her while armed and ignoring commands to stop. … She cannot be reasonably expected or required to reassess her shooting in a tight six second period during an intense and dangerous situation throughout which Hernandez was rising and never stopped moving.”

Judge Patrick Bumatay echoed this concern.

“Judges review police shootings only in hindsight. We review police tapes years after the fact. We get to rewind, pause, fast forward — analyzing the situation frame-by-frame. While the advent of police bodycam videos has been a welcome change, we can’t ignore that real life isn’t in slow motion,” he said.

Congress could determine the future of college sports.

Thursday was a seminal day as to whether Congress can either salvage – or potentially ruin – intercollegiate athletics. It’s a congressional Hail Mary as senators address name, image and likeness (NIL) deals for athletes, compensation packages and transfers between schools.  

“College sports is in crisis,” declared Senate Commerce Committee Chairman Ted Cruz, R-Texas.

“There’s a sense of urgency in that room you can feel it, right? You’ve got to do something rapidly,” said Sen. John Hickenlooper, D-Colo.

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The Commerce Committee approved a bipartisan gameplan to fundamentally alter college sports. The full Senate plans to debate the bill in July. 

“We have put something on the table that’s going to bring more certainty and predictability to the system,” said Sen. Maria Cantwell, D-Wash., the top Democrat on the panel. 

Establishing a nationwide payout framework is a key aspect of the deal. Lawmakers know that inaction could mean that monied, major programs will simply outbid smaller schools. Perhaps even for a future NFL MVP.

“I’m worried that we’ll never see a Josh Allen again at the University of Wyoming,” said Sen. Cynthia Lummis, R-Wyo., referring to the Buffalo Bills standout quarterback. “It leaves those of us who don’t really have a donor base [to struggle to] pay for players of that caliber.”

The bill also restricts athletes to one transfer between schools during a five-year period without a penalty. 

“Now we have this unbelievable number of players that get in the (transfer) portal every year and we have nothing to control the agents,” said former Alabama head football coach Nick Saban to a Senate panel earlier this month.

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 Lawmakers believe this plan will curb the constant roster chaos. 

Advocates of the legislation believe it protects student-athletes.

“It definitely makes sure that predatory contracting done by agents or universities or conferences or shill organizations, don’t get students stuck in binding arbitration,” said Cantwell.

Sen. Cory Booker, D-N.J., is the only former Division I college athlete in the Senate. He played tight end for Stanford’s football team. Booker opposes the bill.

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“I’ve seen decade after decade, how the NCAA has screwed athletes. And so we need to make sure there’s firm athletic protections and not trust the NCAA to do it,” said Booker. 

Sen. Tommy Tuberville, R-Ala., is the only former Division I football head coach in the Senate. He led programs at Auburn, Ole Miss, Texas Tech and Cincinnati. He joins Booker in condemning the legislation.

“They’re trying to turn college sports into the same situation we got in with Obamacare,” said Tuberville on Fox News Radio. “We can’t get the federal government involved in college sports.”

During a floor speech, Tuberville argued that “Congress should not decide how much money student athletes can earn.”

Yet Tuberville conceded that “college sports is facing a five-alarm fire. It’s getting ready to be over with as we know it.”

That’s why Cruz believes Congress should intervene.

“If the alternative is do nothing and allow chaos to continue in college sports to be destroyed, I think that alternative is unacceptable,” said Cruz.

Congress struggles to do lots of things right. That’s why some observers doubt that Congress is a good substitute for the NCAA.

Matt Mackowiak is a former GOP Senate aide who’s written about Brendan Sorsby, his gambling scandal and the saga involving Texas Tech megabooster Cody Campbell. Big money lured Sorsby to the school for a hot minute. Mackowiak says the Cruz/Cantwell bill fails to prevent another Sorsby situation. But Mackowiak’s biggest concern is congressional willingness to undercut the NCAA.

“I don’t know why you need to create some new system and make it overly complicated. You have a governing body. They haven’t had a lot of teeth in their enforcement in recent years.”

Some of that is because super conferences like the Big Ten and SEC wield more power than the NCAA. Notably, neither of those conferences endorsed the Senate bill. But it was the NCAA which demanded congressional intervention. The NCAA has told lawmakers it can’t address NIL on its own and pushed for a national standard set by Capitol Hill.

But Booker isn’t enamored with the NCAA.

“The NCAA, which can’t be trusted, has shown decade after decade, (of) failing college athletes,” he said.

There’s concern the bill could undercut current sports broadcasters by diversifying the number of streamers and outlets carrying games. That could complicate viewing. Additional options aren’t necessarily good for fans if they struggle to find their games.

“Then the fans get hurt because all the content is behind a paywall,” said Sen. Amy Klobuchar, D-Minn. 

“I suspect everyone in this room has heard about frustrations from their constituents in trying to watch their favorite professional sports teams play. They are met with blackouts and paywalls,” said Sen. Tammy Baldwin, D-Wis.

The House of Representatives stumbled in two previous efforts to regulate college sports. The House Republican leadership had to yank completely different college sports regulation bills off the floor in December and this spring because they lacked the votes. So, now it’s the Senate’s turn to try.

There are lots of questions about whether the Senate, like the House, can command the votes for this bill. Moreover, what bandwidth does the Senate even have for serious legislating in July? The Senate is trying to figure out what’s next about the nomination of Jay Clayton to serve as director of national intelligence. The future of FISA Section 702 – the nation’s top program to fight terrorism – is up in the air after authorization expired a few weeks ago. And some Republicans are optimistic the Senate can advance a third “reconciliation package” to pay for the war in Iran, cut taxes and reduce fraud.

It would seem that those priorities might outweigh something on college sports.

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But as Cruz and Tuberville both say, the situation in college sports is dire. There’s worry that the SEC and/or Big Ten might form a mega conference. Or develop their own broadcast platforms for games. And there may be a lot more Brendan Sorsbys as gaming becomes more ubiquitous. 

None of this is going to get any better.

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The future of college sports is on the line. 

So, to fix it, the Senate might just give it the old college try.