Use of Excessive Force and Qualified Immunity

Facts of the Case

In May 2010, three Tucson police officers responded to a 911 call for a welfare check involving a woman behaving erratically and “hacking a tree” with a knife. Upon arrival, they observed a woman, later identified as Ms. Chadwick, standing in the driveway of a nearby house. Seconds later, the officers observed another woman, identified as Ms. Hughes and matching the description given by the 911 caller, exiting the house holding a kitchen knife and approaching Ms. Chadwick. Ms. Hughes stopped advancing roughly six feet from Ms. Chadwick and held the knife at her side. A chain-link fence with a locked gate separated the police officers from the two women. At the sight of the knife, the police officers drew their handguns and issued at least two commands for Ms. Hughes to drop the knife. While Ms. Chadwick later stated she heard these commands, the two other officers testified that Ms. Hughes appeared not to notice the officers' presence or hear their commands to drop the weapon. Ms. Hughes was described as “calm and composed” in her interaction with Ms. Chadwick. When Ms. Hughes failed to drop the weapon, Officer Kisela fired four times through the chain links in the fence without warning that he would do so. The other two officers leapt the fence, handcuffed Ms. Hughes, and called paramedics who transported her to a hospital where she was treated for non-life-threatening injuries. Only one or two minutes elapsed between the arrival of the officers and the shooting.

Information obtained after the shooting revealed that Ms. Hughes and Ms. Chadwick were roommates, and that they were quarreling over a $20 debt. Ms. Hughes was also discovered to have an undisclosed mental illness. Ms. Chadwick had told officers that she was aware of Ms. Hughes' erratic behaviors and mental health history, but she did not feel threatened at any point during the events that led to Ms. Hughes being shot. Ms. Hughes sued Officer Kisela under Rev. Stat. § 1979, 42 U.S.C. § 1983 (1996), alleging that Officer Kisela used excessive force in violation of the Fourth Amendment. The District Court of Arizona granted summary judgment to Officer Kisela due to qualified immunity, but the Court of Appeals for the Ninth Circuit reversed. The appeals court held that Officer Kisela violated Ms. Hughes' Fourth Amendment rights, and that this violation was clear and obvious. When Officer Kisela's motion for a rehearing en banc was denied over the dissent of seven appeals court judges, he filed a petition for certiorari in the U.S. Supreme Court.

Ruling and Reasoning

The U.S. Supreme Court granted certiorari and reversed the holding of the Ninth Circuit, holding that Officer Kisela did not knowingly violate clearly established law and, therefore, retained qualified immunity. In the majority ruling, the Court noted that excessive force and qualified immunity cases must answer two questions. First, they cited Graham v. Connor, 490 U.S. 386 (1989), noting that questions of “reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight” (p 396). Second, as in Plumhoff v. Rickard, 572 U.S. 765 (2014), the court must determine whether an officer reasonably knew that the use of force violated the Fourth Amendment under “clearly established” law.

The Court reprimanded the Ninth Circuit for not applying the concept of qualified immunity correctly. The Court cited White v. Pauly, 137 S. Ct. 548 (2017) for the position that “immunity protects all but the plainly incompetent or those that knowingly violate the law” (p 551). The Court pointed out that several cases cited by the Ninth Circuit in their decision (Deorle v. Rutherford, 272 F.3d 1272 (9th Cir. 2001); Glenn v. Washington County, 673 F.3d 864 (9th Cir. 2011); and Harris v. Roderick, 126 F.3d 1189 (9th Cir. 1997)) do not, in fact, support a denial of qualified immunity. Deorle, the Court said, clearly differs from this case as it involved the shooting of an unarmed man without warning by an officer who had a clear line of retreat as opposed to Ms. Hughes who was “within striking distance” of Ms. Chadwick and did not respond to officers' commands. In addition, Glenn came after the events of this case. Therefore, Officer Kisela should not have been expected to adhere to a legal judgment that had not yet occurred. The Court said that Officer Kisela had mere seconds to address a threat posed to Ms. Chadwick, and a reasonable officer in his position would not know that to shoot Ms. Hughes may violate her Fourth Amendment rights. As a result, he retained qualified immunity and the question of whether Ms. Hughes' Fourth Amendment rights were violated did not need to be addressed by the Court.

Dissent

Justice Sotomayor, joined by Justice Ginsburg, wrote a dissent. She first addressed the perceived threat made by Ms. Hughes. She wrote that at the time of the shooting, Ms. Hughes was reported as “composed and content,” held her knife at her side with the blade pointed away from Ms. Chadwick, had not raised her knife at any point, and had not been observed or suspected of committing any crime. Justice Sotomayor asserted that these facts caused the other two officers on the scene to hold their fire, opting instead to “continue trying verbal commands,” whereas Officer Kisela prematurely resorted to using deadly force (Kisela, p 1157). He did not allow Ms. Hughes enough time to respond to two quick and potentially unheard commands to drop the knife and, instead, “unilaterally escalated the situation” by firing without giving Ms. Hughes warning that he would do so (Kisela, p 1156).

The dissenting opinion stated that officers must attempt to utilize all available less-intrusive means to de-escalate a situation in which there is no “clear threat” to themselves or others. Without these attempts, an officer cannot reasonably pursue deadly force and is not entitled to qualified immunity. The dissent was critical of the majority for “side-stepping” the core issue of the alleged Fourth Amendment violation by ruling only on the question of qualified immunity. The dissent repeatedly reminded the majority that cases decided by summary judgment need to be assessed in a light most favorable to the plaintiff. She stated that the majority opinion failed to do this on numerous occasions by misconstruing the evidence and characterizing Ms. Hughes as erratic, noncompliant, and threatening.

Finally, the dissent pointed out what it viewed as a troubling trend in the courts to asymmetrically favor law enforcement and immunity by issuing summary reversals of any lower court findings of excessive force. Conversely, the Court seems to “rarely intervene” when officers may have been mistakenly granted immunity. Justices Sotomayor and Ginsburg expressed concern that this creates an “absolute shield” for law enforcement and sends an “alarming signal” to “shoot first and think later” (Kisela, p 1162).