The vote in Plumhoff v. Rickard was ostensibly 9-0 to reverse, but Justices Ginsburg and Breyer declined to join certain parts of Justice Alito’s majority opinion. There was no separate writing, and no explanation why those parts weren’t joined. From the syllabus:’
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, SOTOMAYOR, and KAGAN, JJ., joined, in which GINSBURG, J., joined as to the judgment and Parts I, II, and III– C, and in which BREYER, J., joined except as to Part III–B–2.
We can only guess what they didn’t agree with. Here is the key language from III-B-2 that neither joined:
We now consider respondent’s contention that, even if the use of deadly force was permissible, petitioners acted unreasonably in firing a total of 15 shots. We reject that argument. It stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended. As petitioners noted below, “if lethal force is justified, officers are taught to keep shooting until the threat is over.”
Another reason I am in favor of gun control for the police. They should not be allowed to use high-capacity magazines for this very reason–they are trained to keep firing until they run out of ammo (that’s when the threat is over).
Justice Thomas did this in a case a few years ago, but I can’t recall which case.