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Supreme Court reverses 9th Circuit, rules for officer in police excessive use of force case

Supreme Court reverses 9th Circuit, rules for officer in police excessive use of force case

Qualified immunity protects officer who shot woman holding large knife who “had taken steps toward another woman standing nearby, and had refused to drop the knife after at least two commands to do so”

The Supreme Court just handed down a police use-of-force decision, Kisela v. Hughes (pdf.)(full embed at bottom of post), the most notable characteristic of which is the gutting of a typically nutty Ninth Circuit court of appeals ruling and a typically silly dissent by Sotomayor (joined, unsurprisingly, by Ginsburg).

The legal issue in play is whether a woman who was shot by a police officer should be permitted to sue that officer personally.

Generally speaking, police officers have what is referred to as qualified immunity from suit by victim’s of the officer’s use of force in the performance of that officer’s duty. Unless qualified immunity is pierced, the officer’s department is subject to being sued by such a victim (usually in Federal court in what’s referred to as a §1983 action), but not the officer personally.

(NOTE: Many people are highly critical of the doctrine of qualified immunity. Whether qualified immunity is good or bad public policy, however, is not relevant to this decision. Feel free to argue about it in the comments, if you wish, but don’t get mad at me for not also exploring those public policy matters—this post is long enough as it is.)

Overcoming Qualified Immunity

From a technical legal perspective, then, two conditions must be found to exist before a police officer performing his duties can be sued personally by the victim of that:

(1) The officer’s use of force was so excessive that it constitutes a violation of the victim’s Fourth Amendment rights.

In other words, did the use of force constitute a legal wrong in the first place? If so, it opens the door to the officer’s department being sued, but not yet the officer personally unless the officer is stripped of qualified immunity; thus, the second condition—the qualified immunity condition—that must exist before the officer can be sued personally:

(2) The officer had fair notice, based on clearly established precedent, that his use-of-force would violate either a statutory prohibition or a constitutional right of the victim.

History of this Case

In this case the police officer in question, Andrew Kisela, shot the victim, Amy Hughes, four times. Hughes survived her wounds and sued Kisela personally in a Federal §1983 action. Kisela sought summary judgment from the trial court to dismiss the case, which was granted.

Hughes appealed this summary judgment to the Ninth Circuit court of appeals, which reversed the summary judgment on the basis when the evidence was reviewed in the light most favorable to the party against whom summary judgment is sought (in this case, in the light most favorable to Hughes) that both of the conditions described above had been met. That is, the court of appeals ruled both that Kisela’s use of force constituted a violation of Hughes’ Fourth Amendment rights and the constitutional violation was clear and obvious based on the Ninth Circuit’s precedent, and thus Kisela had adequate notice that his conduct violated the Fourth Amendment and did not retain qualified immunity.

Kisela sought to have the entire Ninth Circuit re-hear the matter en banc, which the Ninth Circuit denied in a ruling made over the dissent of seven of the Circuits judges (the Ninth Circuit currently has 25 active judges). Kisela then filed for certiorari with the US Supreme Court, which granted that petition and this morning handed down their decision, Kisela v. Hughes.

Supreme Court Decision in Favor of Officer Kisela

In a 7-2 decision, with a cringe-worthy dissent written by Sotomayor and joined by Ginsberg, the Supreme Court reversed the judgment of the Ninth Circuit, and in effect re-instated the trial court’s summary judgment in favor of Kisela, thereby dismissing Hughes’ suit against the officer.

Remarkably, the majority opinion all but outright mocks the reasoning of the Ninth Circuit in this case, such as quoting from another decision such scolding language as: “The [Supreme] Court has repeatedly told [lower] courts—and the Ninth Circuit in particular …”

Typically of Sotomayor, her dissent is so poorly reasoned and argued that it would receive a poor grade if submitted as a final exam analysis in law school. Naturally, Sotomayor takes twice as many words in her effort to articulate her incorrect legal conclusion as the majority took to arrive at the correct legal conclusion. I leave to the reader’s judgment whether Ginsburg might joined this dissent after an office wine-tasting event.

Majority’s Analysis

In deciding in favor of Kisela, the majority does not bother dealing with the first of the two conditions described above. Instead, they focus their attention on only the second condition:

Did Officer Kisela have fair notice, based on clearly established precedent, that his use-of-force would violate either a statutory prohibition or a constitutional right of the Hughes. As is generally the case in such use-of-force analysis, the specific facts matter a great deal, and so the Supreme Court begins its decision with a recitation of those facts.

It is important to note that the facts that matter in any use-of-force case are those that were known to the person who used the force. This is because a first step in the analysis of whether the use of force was lawful is whether that person possessed a subjectively reasonable belief that it was. Naturally, information not known to this person cannot affect their subjective belief. (A second step in the analysis will then examine whether that subjective belief was also objectively reasonable—that a reasonable officer with similar training and experience in the same circumstances could have held the same subjective belief).

Facts Known to Kisela at the Time

The facts as known to Kisela were that he and his partner officer received a report from 911/dispatch of a woman (Hughes) acting erratically with a large knife, hacking at a tree at a particular address. They responded to the address and were met by the caller to 911, who provided them with a description of the woman with a knife. A third officer joined them at the scene.

The officers spotted a woman (later identified as Sharon Chadwick) standing next to a car in a driveway, and then saw another woman emerge from the house carrying a large knife—this woman, Hughes, matched the description provided by the caller to 911.

Hughes walked towards Chadwick holding the knife, closing to within 6 feet before stopping. A chain link fence with a locked gate separated the officers from Hughes and Chadwick, and all three of the officers drew their handguns.

The officers ordered Hughes at least twice to drop the knife, loudly enough that Chadwick would report she heard them do so. Hughes was non-compliant with these demands, and indeed did not acknowledge the presence of the three officers with drawn handguns in any manner. All three of the officers would state later that at the time they subjectively believed Hughes to be a threat to Chadwick.

It was at this point, less than a minute from when the officers had first sighted Chadwick beside her car, that Kisela shot Hughes four times. Hughes was then transported to the hospital and treated for non-life-threatening injuries (so, luckily for Hughes, not exactly impressive gun handling by Kisela).

Majority’s Near-Mocking Critique of Ninth Circuit Decision

The majority then turns to critiquing the Ninth Circuit’s conclusion that Kisela failed to merit qualified immunity (internal quotes and citations removed for ease of reading):

An 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. That is a necessary part of the qualified-immunity standard, and it is a part of the standard that the Court of Appeals here failed to implement in a correct way.

The majority summarizes the facts of the case relevant to Kisela’s subjective perception of the need to use force upon Hughes as follows:

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 con- fronted 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.

The Court then looks at, and effortlessly distinguishes, the three cases cited by the Ninth Circuit as clear precedent that would have informed Kisela that shooting a knife-armed Hughes, who had been acting erratically enough with the knife to draw neighbor and police attention, who was non-compliant with demands to drop the knife made by three officers with drawn guns, and who was within 6 feet of a prospective victim.

One of these cases, Doerle, involved a police officer was found not to merit qualified immunity after shooting a man in the face—in that case, however, the man was unarmed, and there was no nearby prospective victim.

A second case, Glenn, which the Ninth Circuit described as “[t]he most analogous Ninth Circuit case” was not in fact decided until after the events in this case—thus obviously Glenn could not have provided Kisela of any notice whatever.

Once this plain fact was pointed out to the Ninth Circuit panel of judges who had ruled against Kisela, the panel amended its opinion to replace Glenn with a third case purportedly favorable to the Ninth Circuit’s decision, Harris.

Harris, however, involved a police sniper who shot a man in the back from a distance during the Ruby Ridge standoff, and thus is hardly analogous to the facts in this case.

In fact, the Supreme Court notes in its opinion that the single most analogous case to these facts is Blanford v. Sacramento County, a case with very similar facts in which the officer’s shooting of a non-compliant suspect armed with an edged weapon was not a Fourth Amendment violation:

In Blanford, the police responded to a report that a man was walking through a residential neighborhood carrying a sword and acting in an erratic manner. There, as here, the police shot the man after he refused their commands to drop his weapon (there, as here, the man might not have heard the commands). There, as here, the police believed (perhaps mistakenly), that the man posed an immediate threat to others. Ibid. There, the Court of Appeals determined that the use of deadly force did not violate the Fourth Amendment. Based on that decision, a reasonable officer could have believed the same thing was true in the instant case.

In other words, the most analogous precedent did not only fail to clearly inform Kisela that his use-of-force was unlawful, it did the opposite.

On this basis, then, the majority reversed the Court of Appeals own reversal of the trial court’s summary judgment in favor of Kisela.

Sotomayor’s Typically Sotomayorian Dissent

Sotomayor’s dissent is typically sotomayorian—she simply chooses to view the facts as she wishes and with little connection to reality, or the training and experience of the police officers tasked with making use-of-force decisions very quickly, with imperfect information, and with stakes as high as life itself.

She also repeatedly tosses into the mix “facts” that she finds compelling, but which are either shockingly narrow-minded interpretations of events or entirely irrelevant to the case at hand.

For example, Sotomayor notes that the blade of Hughes knife, as she stood a mere six feet from Chadwick, was “facing away from Chadwick,” in an apparent effort to suggest this means the large kitchen knife was harmless. It seems that Sotomayor doesn’t understand that the direction of a blade can be turned with a flick of a wrist, nor that a blade can be used to thrust.

Sotomayor also repeatedly notes that Hughes “had committed no illegal act.” It seems that Sotomayor doesn’t understand that police officers are not prohibited in using force until after an attack has taken place. Rather, they are authorized to use force to stop an reasonably perceived imminent threat before it has actually occurred.

Sotomayor notes that “Hughes was nowhere near the officers,” which is irrelevant given that the Kisela’s justification was that his use of force was intended to protect Chadwick, not himself or his fellow officers.

Sotomayor notes that Kisela shot Hughes “without giving warning that he would open fire.” First, no such warning is required. Second, the feared knife attack upon Chadwick from a distance of 6 feet would have taken no more time than a single step by Hughes. Third, I would suggest that when three officers order you multiple times to “drop the knife” and draw their handguns while doing so, you have been given notice that they intend to shoot you if you do not comply.

Sotomayor notes that Kisela’s fellow officers did not themselves fire a shot. This is simply not dispositive on Kisela’s decision-making. Perhaps Kisela had different training and experience than the other officers. Indeed Kisela’s partner was in fact an Officer-in-Training, and would reasonably be expected to follow Kisela’s lead on use-of-force decisions, not take the lead himself.

Sotomayor mentions repeatedly that Chadwick herself would later testify that she did not believe herself to be threatened. This, of course, could not be known to Kisela at the time, and in any case, he has the obligation to make his use-of-force decisions on his own best judgment, not that of the prospective crime victim.

Sotomayor chooses to look at Hughes in her yard holding the knife as if such is totally innocent and unremarkable conduct—which, standing alone, it might well be.

But it was not standing alone.

Kisela had received reports of Hughes acting erratically with the knife just minutes before, using it to chop at a tree, behavior sufficiently bizarre to have triggered the initial 911 call, and to lead to the caller to remain near the scene of this conduct and flag down Kisela’s patrol car when it arrived. Sotomayor also glosses over Hughes non-compliance with the shouted orders to “drop the knife” (orders clearly heard by Chadwick, standing only 6 feet away from Hughes), and Hughes apparent unawareness of three officers mere feet away with drawn guns shouting commands at her—behavior that does not suggest mental stability in a woman armed with a large kitchen knife.

Sotomayor notes that after being shot four times “Hughes did not resist or evade arrest,” as if either was likely or for that matter relevant to Kisela’s use-of-force decision-making, which was obviously already done by that point.

Sotomayor then comments without any supporting evidence on the tactical decision-making of Kisela. He should have used his Taser to shoot through the fence, firing bullets “through the fence was dangerous because a bullet could have fragmented and hit Chadwick or his fellow officers.” I suspect that if asked Sotomayor would be unable to document any personal experience, expertise, or even well-supported education on the use of either Tasers or handguns for self-defense.

Sotomayor then summarily concludes that “Kisela plainly lacked any legitimate interest justifying the use of deadly force against a woman who posed no objective threat of harm to officers or others,” ignoring that Kisela articulated exactly such a legitimate interest in arguing that he used force in defense of Chadwick, and by the testimony of his two fellow officers who also stated that they objectively perceived Hughes as a threat to Chadwick.

And more and more and more of the same kinds of nonsense, a full 15 pages of it. As with any Sotomayor dissent, I can recommend that you read it only if you have masochistic tendencies.

In Closing

In closing, I remind the reader once again that this decision does not mean that Hughes cannot bring a §1983 case against Kisela’s department, which is an entirely different matter, but only that she cannot do so against Kisela personally, having failed to overcome his qualified immunity.  Also, don’t be yelling at me about the merits or lack thereof of qualified immunity. 🙂

As promised, here’s the Supreme Court’s actual decision in Kisela v. Hughes, including the dissent.


Kisela v. Hughes Police Shooting Case – US Supreme Court Opinion by Legal Insurrection on Scribd

Andrew F. Branca is an attorney whose practice Law of Self Defense LLC focuses on self-defense law.  Download a FREE copy of his recent expert report: “When Sheepdogs With Fake Badges Make Poor Choices in Churches”


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Tough cases if you are not in that position. Knives are dangerous.

The details of the case matter not when a politically aligned tribunal of judges do as they please.

And then I’m to feel comforted about the miscarriage of justice after learning one group of judges mock another group of judges for their lawful misbehavior?

Nae, it scares the s’it out of me. We little people are at the mercy of state sanctioned packs of bloody hyenas.

So, the takeaway is this; never bring a gun to a knife fight. We must call for the equal use of force. Equip police pistols and riot guns with bayonets. Very bloody, but also quite egalitarian.

Seven judges in the district wanted to hear the case en banc and were overruled. Breaking the 9th circuit up might have allowed a different decision. In this case, that sounds like it would have been a good thing.

    Gremlin1974 in reply to irv. | April 2, 2018 at 7:25 pm

    There are a great many who believe that the 9th should be broken up, just due to the workload that court see’s.

Well, Mr. Branca, Justice Sotomayor is a self-identified “Wise Latina” and that should be enough for you and everyone else to accept whatever she says. You give us a reasoned, legal and erudite explanation of the facts of the case but that does not mean diddely to people who idolize the likes of Sotomayor (or Maxine Waters, or Hillary Clinton).

Andrew–Great post! Very effectively descriptive, very cogent analysis, absolutely agree with your conclusions. Posts like this are why I come to Legal Insurrection.

blah deblah | April 2, 2018 at 4:16 pm

Nuke the 9th.

Massinsanity | April 2, 2018 at 4:22 pm

“Suffice it to say, a reasonable police officer could miss the connection between the situation confronting the sniper at Ruby Ridge and the situation confronting Gisela in Hughes’ front yard.”


tarheelkate | April 2, 2018 at 4:22 pm

A very sensible decision.

So here’s what leftists want, apparently. We are not to have guns to defend ourselves or to defend others. Police have guns, but they are not to use them to defend at-risk citizens, either.

In this case, the officer managed to eliminate the threat without eliminating the threatening person, and he doesn’t even get credit for that from the left.

    Edward in reply to tarheelkate. | April 3, 2018 at 8:22 am

    Survived four hits. No credit from his Firearms Instructor either (depending on distance, no credit if under 25 yards.

Andrew, thanks for the clear explanation. I think the subject matter well justified the long post. I will say, though, that a spanking by the US Supreme Court is unlikely to deter the more extreme members of the 9th circuit. They, like many Californians, view themselves as the leaders, the cutting edge of the law and social development. They think that, where they go, the rest of the country will inevitably follow, and they tell that to each other frequently. This attitude makes a reversal by the Supreme Court an achievement.

Some people will call that heroic, but others call it hubris.

Methinks that Sonia baby’s only claim to sitting on the SCOTUS is that she’s a self-styled “wise” Latina who got appointed to her seat by obongo because she checked off two boxes on the affirmative action checklist.

My cat could give better reasoned opinions than she can.

The Wise Latina strikes again.
Maybe we should arm our Officers with Nerf Guns , some of them are now 25 shot.

. I leave to the reader’s judgment whether Ginsburg might joined this dissent after an office wine-tasting event.

I comment only to note that Encinio motors was issued today. Ginsburg intentionally misquoted the statute (at least appeared to intentionally) and what would appear to be intentionally representing the service advisors job description to reach a legal conclusion on her preferred policy.

“Wise Latina.” Right. The good news is … at least we don’t have to do that again.

Andrew, nice summary, thanks! With regard to your editorial remark on Kisela’s gun handling skills, I would only add that the absence of perforations in Ms. Chadwick probably should be put in the plus column for the officer.

Does not the administration to have the power to make and abolish courts below the Supreme Court? The ninth circuit court could simply be abolished and several more representative courts created. They have no obligation to reappoint any of the existing ninth Court judges.
Did I miss something?

    luagha in reply to beagleEar. | April 2, 2018 at 5:34 pm

    Sadly, I think Congress and the President would have to get together to bust up the 9th Circuit, redraw the lines, and reapportion. No Dems will ever agree because it’ll give Trump even more judges than he already has.

    Milhouse in reply to beagleEar. | April 2, 2018 at 6:13 pm

    Does not the administration to have the power to make and abolish courts below the Supreme Court?

    No, Congress does.

With the recent death of the liberal “lion” Reinhardt, and 7 vacancies on the 9th Circuit “Court” we just need nominations, and McConnell needs to move them through ratification. It will make a big difference.

At what point is there enough faulty rulings and subsequent overturning of the 9th Circus that there be given serious thought to impeaching these judges? When you perform a job so poorly that it is continually having to be readdressed by others, you lose your job. Why should these judges have lifetime immunity from doing their jobs poorly?

Sotomayor, well, she was appointed by Duh One, so it is no real surprise that the “Constitutional Scholar” who had such a poor grasp on the Constitution, would end up picking as a Supreme Court Judge someone who was truly not qualified for the position, but rather given the job as a form of affirmative action, which seemed to matter far more to Obama than jurisprudence.

I believe the limited immunity for serving police officers to be a correct law, as it frees the officer from worries and second guessing which would occur if they knew everything they did would be subject to law suits. It isn’t a blanket immunity as there are conditions to be met to it being provided. Imagine the negative impact legal suits would have on a police force in higher crime areas. You might reach a point where you couldn’t pay people enough to do the job, unless graft and poor performance were their true goals for taking the job.

Being that the legal “giant” Ginsberg sided in dissent, other than her having twisted and strange views of many cases in law, seems to show she should retire soon. Her mental capacity is failing if she joined in such a poorly contrived dissent as Sotomayor put together. Hopefully Kennedy will retire, as has been hinted at for a while now, and Trump can replace him with a good justice whom the Constitution is the primary law for guiding decisions, that will limit (hopefully, though we never truly know how well a judge will act till too late, as we have seen with Roberts) the damages to our legal system which Sotomayor and Ginsburg frequently bring.

    randian in reply to oldgoat36. | April 3, 2018 at 12:07 am

    Limited immunity is good. The second prong of the test I have problems with, because it appears to give license to deliberately cultivated ignorance as a means of avoiding liability.

      amatuerwrangler in reply to randian. | April 3, 2018 at 8:32 pm

      I disagree with your assessment of the second prong. The knowledge referred to is that which is known to the “public” in general, and to the police, more specifically.

      It does put a burden on the various departments to be certain that they continually update their personnel as to changes in law and/or decisions that impact how they do business. If the department fails to do that then the officer may have a defense related to that failure, and the department that failed to maintain a knowledgeable and up-to-date staff would be open to legal action. An officer who willfully avoided the department’s ongoing training in these things would not be able to hide behind an “I didn’t know. No one told me.” [My experience, in a past life, was that this is a very well-worn cover for all kinds of transgressions. It seldom worked well, however.]


    Roberts is a poor umpire

    Edward in reply to oldgoat36. | April 7, 2018 at 10:06 am

    The Wise Latina’s dissent was so long that Ginsberg couldn’t stay awake long enough to read it all. So she just sided with the known Leftist point of view. Probably didn’t notice that Kagan didn’t agree, but she’s no Wise Latina.

Something similar happened in SLC, but the guy did not have a knife, and he did not move from his position. The DA tortured the video evidence until it confessed in the officer’s favor.

Sotomayor disintegrating……

This case is important for anyone who may feel that they have to use force in defense of another.

While we are speaking of qualified immunity for a LEO, the same rules apply in an action for battery both criminal and civil] while acting in defense of another. If an immediate deadly threat exists AND a person reasonably believes that not acting will likely result in great bodily injury or death to another, it si reasonable to assume that a reasonable man would act the same. This goes a long way to proving that the action was not unlawful or actionable. This is very important.

As to the decision of the 9th, that court is nothing more than a joke. It was on legal quicksand when it made the decision initially and sank out of sight in a legal quagmire when it did not reverse itself for error when it cited Glenn. Sotomayor is nothing more than a liberal shill, not a jurist.

    Mac45 in reply to Mac45. | April 2, 2018 at 9:52 pm

    One last thing. You may have noticed that it took Sotomayor twice as many pages to attempt to support an incorrect decision as it did the rest of the court to justify a correct one. Just more evidence to support my theory that the longer a decision is, the more likely it is to be wrong.

Soto mayor a “wise Latina”? Mi burro grande.

The Ninth and Sotomayor (supported by the a̶g̶i̶n̶g̶ aged Ginsberg) attempted to overrule decades of law enforcement doctrine and teaching regarding the use of deadly force in a situation where a member of the public is in perceived danger. At six feet distance an attacker armed with a knife like that reported could kill a victim simultaneous with, or before, an officer with drawn firearm could stop the attacker.

Voice_of_Reason | April 3, 2018 at 2:35 pm

Sotomayor’s judgement is kafkaesque. so much for the “wise latina” schtick. and the notorious RBG’s seat has been vacant for years – liberals just mover her around like “weekend at bernie’s”

In this case, I am with Sotomayor.

I don’t think the cop was justified to use deadly force against plaintiff. Nothing that plaintiff had done up to that point indicated that she posed any threat to anyone! That’s the key point! She was not reported to threaten anyone nor had she exhibited any threatening behavior toward her putative victim…. why shoot her?… just because she was reported to act erratically stabbing trees with a kitchen knife, was walking outside her home with a knife and got within 6 feet of a person does not give a cop a justification to shoot her. This was clearly a mistake on his part, and arguably a clear violation of the guidelines that mandate the use of force only where there is a threat to life. Whether on these facts, the immunity should have been pierced is a close question, but in my view the circuit and Sotomayor got it right here.

    Milhouse in reply to padvocate. | April 4, 2018 at 6:03 am

    Really? Would you say the same thing if she’d been holding a gun rather than a knife?

    If her behavior, including her refusal to obey repeated orders to put the knife down, did not constitute an obvious threat to the other woman’s life, what exactly would constitute such a threat? When would you want the cop to stop her?

    Remember, all three cops perceived the threat. I don’t know why you think they were even mistaken, let alone that the mistake was so obvious as to make the shooter liable.

    Marcus in reply to padvocate. | April 5, 2018 at 2:22 pm

    I take it then “padvocate” that you were there, on scene, during the on-going episode. Hence, you were so able to distinguish the precursors to an imminent attack requiring 6′ of distance to cover before rendering the other person slit from ear to ear. I wasn’t there, so I don’t know what the officers were able to see and or hear and or feel in the contact time they had, But, from their perspective those perceptions only had to be “reasonable” within the context of the “totality of the circumstances” as those circumstances presented themselves to the officers. You might want to read Graham v. Conner, it might just edify you as you peruse your keyboard.

Ii don’t think plaintiff’s disobeying orders to drop the knife changes anything… this was a ‘911 welfare call ‘meant to assure that plaintiff is ok and does not harm herself. There was no report of any threats of violence on her part. If there was a report of her making such threats or she exhibited such a behavior for example by raising knife at the putative victim then I would say the cop was arguably justified to pull a trigger…. here there was an obviously mentally ill woman cutting tree with a kitchen knife and walking around with it who did not drop the knife when ordered to do so and who came within 6 feet of another person…. I get that such a woman potential poses significantly higher risk to the surrounding people than an average person but to think that she poses a substantial risk to life to justify deadly force is crazy… in nyc, we had a similar case recently where the cop was criminally prosecuted for using deadly force where the obviously deranged person refused to drop a knife during a 911 welfare call…. plaintiff’s holding it kitchen knife or a legal firearm would not change my analysis.

The wise latina needs to go through some use of force training. Simunition v. knife drills, shoot/don’t shoot scenarios. She needs to come down from her ivory tower and learn about the real world ahe sits in judgement of. Also, I propose any judge in the 9th circuit with a 75% reversal rate or higher be removed for incompetence. What other profession allows such an atrocious fail rate? I can tell you a profession that does not… modern day policing.

Typically excellent analysis and commentary, by the inimitable Mr. Branca — thank you.

What I can’t figure out is, how did the respondent’s suit even proced as far as it did? Haven’t polic use-of-force standards been well-established in caselaw, over decades? Isn’t it widely understood as a basic legal standard that police officers are justified in using lethal force when they reasonably perceive that either they, or, someone else, is in imminent danger of serious bodily harm? Why didn’t the inquiry end at this simple gateway question of reasonableness? And, once the officer’s actions were found to be reasonable, as seems warranted under the facts, that should have been the end of it.