A woman called 911 after noticing another woman hacking at a tree with a kitchen knife. Three police officers arrive; they spot the subject of the caller’s concern, Amy Hughes, standing in a yard fenced off by chainlink, holding a kitchen knife, about six feet away from a second woman, Sharon Chadwick. Less than a minute after noticing Chadwick, after Hughes failed to drop the knife on command, an officer—Andrew Kisela—shot Hughes four times.
Hughes sued Kisela alleging excessive force. (Crazy, right?)
The district court found for Kisela. On appeal, however, the Ninth Circuit—that’s Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon and Washington—ruled that Kisela violated the Fourth Amendment, and the violation was obvious. That meant Kisela couldn’t hide behind the shield of “qualified immunity,” the legal doctrine that protects officials from liability as long as they don’t violate clearly established rights, or rights that the officials should reasonably have known about. It gave Hughes the green light to hold Kisela accountable.
Then the Supreme Court granted certiorari (agreed to hear the case).
The per curiam majority portrays the situation one way; the dissent, another. According to the main opinion, it’s not obvious that shooting a woman holding a knife in her yard four times after she failed to respond to two commands—less than a minute after encountering her—is unreasonable.
Kisela says he shot Hughes because, although the officers themselves were in no apparent danger, he believed she was a threat to Chadwick. Kisela had mere seconds to assess the potential danger to Chadwick. He was confronted with a woman who had just been seen hacking a tree with a large kitchen knife and whose behavior was erratic enough to cause a concerned bystander to call 911 and then flag down Kisela and Garcia. Kisela was separated from Hughes and Chadwick by a chain-link fence; Hughes had moved to within a few feet of Chadwick; and she failed to acknowledge at least two commands to drop the knife. Those commands were loud enough that Chadwick, who was standing next to Hughes, heard them. This is far from an obvious case in which any competent officer would have known that shooting Hughes to protect Chadwick would violate the Fourth Amendment.
Justice Sonia Sotomayor’s dissent—joined by Justice Ruth Bader Ginsburg—was, in the words of one attorney, “lit.”
Officer Andrew Kisela shot Amy Hughes while she was speaking with her roommate, Sharon Chadwick, outside of their home. The record, properly construed at this stage, shows that at the time of the shooting: Hughes stood stationary about six feet away from Chadwick, appeared “composed and content,” and held a kitchen knife down at her side with the blade facing away from Chadwick. Hughes was nowhere near the officers, had committed no illegal act, was suspected of no crime, and did not raise the knife in the direction of Chadwick or anyone else. Faced with these facts, the two other responding officers held their fire, and one testified that he “wanted to continue trying verbal command[s] and see if that would work.” But not Kisela. He thought it necessary to use deadly force, and so, without giving a warning that he would open fire, he shot Hughes four times, leaving her seriously injured.
If this account of Kisela’s conduct sounds unreasonable, that is because it was. And yet, the Court today insulates that conduct from liability under the doctrine of qualified immunity, holding that Kisela violated no “clearly established” law.
Citing no fewer than three apposite appellate rulings, Sotomayor points out that there’s caselaw specific to situations like Hughes’s.
[D]ecisions from several other Circuits illustrate that the Fourth Amendment clearly forbids the use of deadly force against a person who is merely holding a knife but not threatening anyone with it.
Further, Sotomayor pointed out just how faulty the majority’s attempted comparisons are. One such takedown is particularly memorable:
This case differs significantly from Blanford in several key respects. Unlike the man in Blanford, Hughes held a kitchen knife down by her side, as compared to a 2½-foot sword; she appeared calm and collected, and did not make threatening noises or gestures toward the officers on the scene; she stood still in front of her own home, and was not wandering about the neighborhood, evading law enforcement, or attempting to enter another house. Moreover, unlike the officers in Blanford, Kisela never verbally identified himself as an officer and never warned Hughes that he was going to shoot before he did so. Given these significant differences, no reasonable officer would believe that Blanford justified Kisela’s conduct.
Sotomayor also calls out the majority’s procedural hijinks:
[E]ven if [Kisela’s lack of qualified immunity] were not so clear, I cannot agree with the majority’s apparent view that the decision below was so manifestly incorrect as to warrant “the extraordinary remedy of a summary reversal.” “A summary reversal is a rare disposition, usually reserved by this Court for situations in which the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error.” This is not such a case. The relevant facts are hotly disputed, and the qualified immunity question here is, at the very best, a close call. Rather than letting this case go to a jury, the Court decides to intervene prematurely, purporting to correct an error that is not at all clear.
In other words, some of Sotomayor’s colleagues wanted to set certain precedent on qualified immunity and even conspicuously ignored fundamental principles to ensure they got the result they wanted—now binding nationwide.
This decision is disturbing independently, but even more so as reflective of a pernicious trend at the court.
This unwarranted summary reversal is symptomatic of “a disturbing trend regarding the use of this Court’s resources” in qualified-immunity cases. As I have previously noted, this Court routinely displays an unflinching willingness “to summarily reverse courts for wrongly denying officers the protection of qualified immunity” but “rarely intervene[s] where courts wrongly afford officers the benefit of qualified immunity in these same cases.” Such a one-sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment.
The majority today exacerbates that troubling asymmetry. Its decision is not just wrong on the law; it also sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished. Because there is nothing right or just under the law about this, I respectfully dissent.
If Kisela’s protected by qualified immunity, who isn’t?