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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