In Kisela v. Hughes, Confronting Police Who “Shoot First and Think Later”

In the annals of the Supreme Court, summary reversals overturning a lower court decision without briefing or oral argument are common. But rare are summary reversals that receive media attention — because such action is “usually reserved … for situations in which the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error.”

While the majority of the Supreme Court sees Kisela v. Hughes this way, Justice Sotomayor disagrees. In a headline-grabbing dissenting opinion last week, she described this case graphically, saying it would allow police officers to “shoot first and think later.”

Kisela v. Hughes concerns the legal concept of qualified immunity. In the original incident, officers arrived at Amy Hughes’s house after being told a woman was hacking a tree with a kitchen knife. Officers saw Hughes emerge from her house carrying a large kitchen knife at her side.

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Hughes stopped no more than six feet away from her roommate, Sharon Chadwick. After officers told Hughes twice to drop the knife and she did not comply, Officer Kisela shot her four times.

Typically, state and local government officials can be sued for money damages in their individual capacity if they violate a person’s constitutional rights. Qualified immunity protects government officials from such lawsuits where the law they violated isn’t “clearly established.”

The Ninth Circuit ruled that Officer Kisela used unreasonable force in violation of the Fourth Amendment — and denied him qualified immunity, concluding the constitutional violation was obvious.

In a per curium (unauthored) opinion, the Supreme Court disagreed. It assumed without deciding that Officer Kisela’s use of force was excessive. But the court still granted him qualified immunity, noting 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.” Officer Kisela believed Hughes was a threat to Chadwick, he had only seconds to assess the danger, Hughes had just been seen hacking a tree, and she failed to acknowledge two commands to drop the knife which were loud enough for her roommate to hear.

The majority of the court was unimpressed with the Ninth Circuit cases Hughes cited to illustrate that it was clearly established that the force Officer Kisela used was excessive. According to the court, the most analogous precedent favors Officer Kisela. And “not one of the decisions relied on by the Court of Appeals . . . supports denying Kisela qualified immunity.”

Justice Ginsburg joined Justice Sotomayor’s dissenting opinion which pointed to facts they believe indicate qualified immunity wasn’t appropriate including that Hughes “posed no objective threat of harm to officers or others, had committed no crime, and appeared calm and collected during the police encounter.”

The dissenters also criticized the court for “routinely display[ing] 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.’”

lisa_soronen_new_125x150About the author: Lisa Soronen is the executive director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations, including the National League of Cities, representing state and local governments. She is a regular contributor to CitiesSpeak.