Wednesday, April 4, 2018

Supreme Court rejects another police shooting case under qualified immunity

This has been happening under the radar, but the Supreme Court over the last few years has been summarily dismissing excessive force claims against the police, granting law enforcement qualified immunity because they did not violate clearly-established law in physically confronting the plaintiffs.

The case is Kisela v. Hughes, issued by the Supreme Court on April 2. Public officials, including police officers are immune from lawsuits even if they violate the law. The immunity attaches if they did not violate clearly-established law, as determined by the case law on the books at the time of the civil rights violation. This means that even if a court says in hindsight that the officer broke the law, the officer cannot be sued if the case was too unique and the officer was not on notice that preexisting case law prohibited his actions. That is what happened in this case.

Kisela is a police officer in Arizona who shot a knife-wielding woman who was behaving erratically. A chain link fence separated Kisela from Hughes, but Hughes was about six feet away from another woman, Chadwick. Hughes was not pointing the knife at Chadwick. Kisela shot Hughes but did not kill her. The Ninth Circuit Court of Appeals said that Hughes could sue Kisela for excessive force under the Fourth Amendment. The Supreme Court rules 7-2, and without oral argument or briefing, that Kisela is entitled to qualified immunity and the case is dismissed against him.

The Supreme Court has said many times over the years that police officers cannot use excessive force against citizens and bystanders. But each lawsuit alleging excessive force has a unique set of facts. To avoid qualified immunity, it is not enough for the plaintiff to point to general legal principles laid down by the Supreme Court on a given issue. The plaintiff has to show that existing case law had held that similar facts were enough to win the case. Those existing cases in theory put the police on notice about what is lawful and what is not lawful. The Court says this case is too unique to have made it obvious that Kisela broke the law.

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 Sotomayor dissents, viewing the facts differently than the majority, noting that the jury could see it the plaintiff's way. Here is how Justice Sotomayor sees the evidence:

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.
The Justice further notes the Court has been throwing out excessive force claims in this manner for the past several years, calling it a "disturbing trend." She adds,

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 noth-ing right or just under the law about this, I respectfully dissent.

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