On April 2, 2018, in Kisela v. Hughes, 2018 U.S. LEXIS 2245 (U.S. Apr. 2, 2018), the United States Supreme Court held that, even assuming a Fourth Amendment violation occurred, an officer was entitled to qualified immunity because the situation he faced was far from a case in which any competent officer would have known under the circumstances that shooting the respondent to protect her roommate would have violated the Fourth Amendment. The officer fired on the respondent, who, at the time, was holding a knife while in close proximity to her roommate and after the respondent refused to obey several commands to drop the knife.
Background
The record, viewed in the light most favorable to respondent Hughes, showed the following. In May 2010, somebody in the neighborhood of Amy Hughes’ residence called 911 to report that a woman was hacking a tree with a kitchen knife. Tucson Police Officers Andrew Kisela and Alex Garcia heard about the report over their patrol car radio and responded. A few minutes later the 911 caller flagged down the officers, described the woman with the knife, and told them the woman had been acting erratically. By this time, a third police officer had arrived on her bicycle.
Officer Garcia saw a woman, later identified as Sharon Chadwick, standing next to a car in the driveway of a nearby house. A chain-link fence with a locked gate separated Chadwick from the officers. The officers then saw another woman, Amy Hughes, come out of the house carrying a large knife at her side. Hughes matched the description of the woman who had been seen hacking a tree. Hughes walked toward Chadwick and stopped no more than six feet from her.
All three officers drew their guns. At least twice they told Hughes to drop the knife. Chadwick told both Hughes and the officers to “take it easy”. Hughes appeared calm, but she did not show that she was aware of the officers. Nor did she drop the knife. Officer Kisela’s line of fire was blocked by the top bar of the chain-link fence, so he dropped to the ground. He then shot Hughes four times through the fence. The officers then jumped the fence, handcuffed Hughes, and called paramedics, who transported her to a hospital. There she was treated for non-life-threatening injuries. Less than a minute had elapsed from the moment the officers saw Chadwick to the moment Officer Kisela fired shots.
Each officer later stated that at the time of the shooting they subjectively believed Hughes to be a threat to Chadwick. The officers learned after the shooting that Hughes and Chadwick were roommates; that Hughes had a history of mental illness; and that Hughes was upset with Chadwick over a $20 debt. In an affidavit produced during discovery, Chadwick said that, a few minutes before the shooting, her boyfriend had told her Hughes was threatening to kill Chadwick’s dog. When Chadwick came home she found Hughes “somewhat distressed,” and Hughes was in the house holding Chadwick’s dog “in one hand and a kitchen knife in the other.” Hughes asked Chadwick if she “wanted [her] to use the knife on the dog.” At the time of the shooting, the officers knew of none of this.
Chadwick went outside to her car to get $20, which is when the officers first saw her. In her affidavit, Chadwick said that she did not feel endangered at any time. Based on her experience as Hughes’ roommate, Chadwick said that Hughes “occasionally has episodes in which she acts inappropriately,” but “she is only seeking attention.”
Hughes sued Kisela under 42 U.S.C. section 1983, alleging excessive force in violation of the Fourth Amendment. The District Court granted summary judgment to Kisela. The Ninth Circuit Court of Appeals reversed. The Court of Appeals first held that the record, viewed in the light most favorable to Hughes, was sufficient to demonstrate that Kisela violated the Fourth Amendment. The court then held that the violation was clearly established because the constitutional violation was obvious and because of similar Circuit precedent. The Ninth Circuit Court of Appeals denied Kisela’s petition for rehearing en banc. Kisela then filed a petition for certiorari, which the Supreme Court granted.
Discussion
After a brief discussion on the constitutional question of excessive force, the United States Supreme Court bypassed this determination in the present case, saying the Court did not have to address the excessive force question. Even assuming Kisela did use excessive force, the Court stated, he was entitled to qualified immunity.
The high court explained that “‘[q]ualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ White v. Pauly, 580 U. S. ___, ___, 137 S. Ct. 548, 196 L. Ed. 2d 463 (2017) (per curiam) (alterations and internal quotation marks omitted).” For a right to be “clearly established,” existing precedent must have placed the constitutional or statutory right beyond debate. Unless existing precedent “squarely governs” the specific facts at issue in an excessive force case, police officers are entitled to qualified immunity.[1] The Court added that it had repeatedly told courts, “the Ninth Circuit in particular”, not to define clearly established law at a high level of generality.[2] Citing Plumhoff v. Rickard,[3] the Court observed that “[a]n officer ‘cannot be said to have violated a clearly established right unless the right’s contours were sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating it.’” The high court found that the Ninth Circuit did not implement this portion of the standard correctly.
The Court observed that Kisela said he shot Hughes because, although the officers themselves were in no apparent danger, he believed she was a threat to Chadwick. The Court noted that: Kisela only had a few seconds to determine the level of danger to Chadwick; Hughes matched the 911 caller’s description of a woman with a knife behaving erratically; Hughes at that moment had a large knife; Hughes was only a few feet from Chadwick; Hughes was separated from the officers’ persons by a chain-link fence; and Hughes had not responded to the officers’ repeated commands to drop the knife.
The Court observed that Chadwick heard the commands, and was standing next to Hughes. The Court found that this situation was “far from an obvious case in which any competent officer would have known that shooting Hughes to protect Chadwick would violate the Fourth Amendment.” Finding errors in the Court of Appeals’ analysis, the Supreme Court then determined that the facts in the precedents cited by the Court of Appeals were not sufficiently analogous to the situation facing Kisela to meet the “clearly established” standard required before a court can deny an officer qualified immunity. The Court noted that the precedents the Ninth Circuit cited did not “squarely govern” the case here. Thus, the Court concluded Kisela was entitled to qualified immunity. Accordingly, the Supreme Court reversed the Court of Appeals’ judgment and remanded the case.
Dissent
In a lengthy dissent, Justice Sotomayor maintained that the majority did not view the facts correctly and misapplied the law, “effectively treating qualified immunity as an absolute shield.” The dissent first found that, when viewing the facts in the light most favorable to Hughes, as required of the Court when reviewing summary judgment, a jury could find that Kisela violated Hughes’ clearly established Fourth Amendment rights by unnecessarily resorting to lethal force. The dissent determined that Kisela used excessive force because Hughes did not pose an objective threat to officers or others (including Chadwick), had not committed a crime, and seemed calm and collected throughout the police interaction. The dissent noted that neither of Kisela’s fellow officers resorted to deadly force, though they faced the same circumstances.
After reviewing cases cited by the Court of Appeals and the majority opinion, the dissent determined that the precedent existing at the time of the shooting “clearly established” the unconstitutionality of Kisela’s conduct. Justice Sotomayor asserted that “the majority’s decision rested on a faulty premise: that those cases are not identical to this one. But that is not the law, for our cases have never required a factually identical case to satisfy the ‘clearly established’ standard. It is enough that governing law places ‘the constitutionality of the officer’s conduct beyond debate.’ Because, taking the facts in the light most favorable to Hughes, it is ‘beyond debate’ that Kisela’s use of deadly force was objectively unreasonable, he was not entitled to summary judgment on the basis of qualified immunity.”
HOW THIS AFFECTS YOUR AGENCY
The United States Supreme Court has emphasized in recent cases, such as White v. Pauly and Thompson v. Rahr[4] that, in order to deny qualified immunity, the determination of whether the law was clearly established at the time of an incident must be “particularized to the facts of the case” in order to meet the “clearly established” prong of the qualified immunity analysis. The Kisela case continues this trend. This case should highlight to Circuit Courts that denial of qualified immunity should not be done lightly, particularly in the Ninth Circuit, whose judgment the Supreme Court has repeatedly and explicitly questioned. Kisela provides additional authority for the premise that law enforcement officers are entitled to qualified immunity, unless a factually similar case existing prior to the incident in which they are involved demonstrates that their actions were clearly unconstitutional. This decision should, therefore, assist law enforcement officers in obtaining the very important defense of qualified immunity in many civil liability cases.
As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446–1400 or via email at jrt@jones-mayer.com.
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[1] Mullenix v. Luna, 136 S. Ct. 305 (2015).
[2] City and County of San Francisco v. Sheehan, 135 S. Ct. 1765 (2015).
[3] 134 S. Ct. 2012 (2014).
[4] Pauly and Rahr are covered in detail in Client Alerts Vol.32, No. 3 and Vol. 33, No. 8, respectively.