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Qualified Immunity or an Absolute Shield? How the United States Supreme Court Has Signaled a Shift in Protection of Officers in Excessive Force Claims

By Calvin A. Townsend II

The Supreme Court recently issued its decision on the scope of the qualified immunity doctrine, and this opinion seems to offer greater protection for law enforcement officers who are accused of excessive force.  Andrew Kisela v. Amy Hughes, 2018 WL 1568126 (US Sup. Ct. April 2, 2018).  The qualified immunity doctrine shields law enforcement officers in some cases from liability when they are accused of violating the civil rights of another.  This doctrine is frequently litigated when a law enforcement officer is accused of excessive force, particularly with respect to the use of deadly force, in the course of an arrest. The qualified immunity doctrine protects law enforcement officers from liability in such cases, if the officers can establish that their conduct does not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” White v. Pauly, 580 U.S. ___, ___ 2017 (per curiam) (slip op., at 6).  This rule means that even if a law enforcement officer’s use of force violated the statutory or constitutional rights of an individual, the officer is not subject to liability if it can be demonstrated that the law was not clearly established, such that a reasonable officer, at the time the allegedly wrongful conduct occurred, would have known that the conduct was unlawful.

Referencing its earlier opinions on this issue in White v. Pauly, 580 U.S. ___, ___ (2017)(per curiam)and City and County of San Francisco v. Sheehan, 575 U.S. ___, ___ (2015), the Court in Kisela reiterated that in order for the law to be “clearly established,” existing legal precedent must make the legal question “beyond debate,” meaning that the qualified immunity doctrine “protects all but the plainly incompetent or those who knowingly violate the law.”  Kisela v. Hughes, ___ U.S. ___ (2018) (per curiam) (slip op., at 3)(citations omitted).

Applying this standard to the facts of the case, the Court held that the qualified immunity doctrine shielded police officer Andrew Kisela from liability for his use of deadly force against Amy Hughes, who refused to drop a large kitchen knife after being commanded at least twice by the police officer to do so.  In May of 2010, Tucson, Arizona police received a “check welfare” 911 call, reporting a woman who was hacking a tree with a kitchen knife. Officer Kisela and Officer Alex Garcia arrived on the scene and were flagged down by the 911 caller, who described the woman and stated she was acting erratically.  A third officer then arrived on the scene.

Officer Garcia spotted Sharon Chadwick standing next to a car in the drive-way of a nearby house.  A chain-linked fence with a locked gate separated Chadwick from the officers. The officers then noticed Amy Hughes emerge from the same house carrying a kitchen knife at her side.  Hughes matched the description from the 911 caller. Hughes stopped approximately six feet from Chadwick and made no aggressive movements. All three officers immediately drew their guns and told Hughes to drop the kitchen knife, but did not warn her that they would shoot if she did not comply. Hughes appeared calm with the knife remaining at her side, but did not acknowledge the officers’ presence, and it was unknown whether Hughes even heard the officers’ instructions. While Officers Garcia and Kunz continued verbal commands for Hughes to drop the knife, Kisela dropped to the ground and shot Hughes four times through the chain-linked fence. The entire incident from the moment the Officers spotted Chadwick, to Officer Kisela’s opening fire, took less than one minute. In an affidavit, Chadwick stated that she did not feel endangered at any time, as Chadwick and Hughes were roommates, were in their backyard, and Hughes occasionally had episodes in which she acted inappropriately, but only did so to seek attention.

Hughes brought an action under 42 U.S.C. § 1983 against Officer Kisela, which alleged excessive force in violation of the Fourth Amendment. The United States District Court for the District of Arizona denied Kisela’s motion for summary judgment based on qualified immunity, but granted his renewed motion for summary judgment. The Ninth Circuit Court of Appeals unanimously reversed, holding that the record, when viewed in the light most favorable to Hughes, showed that Kisela violated the Fourth Amendment by acting unreasonably, and that the violation was clearly established because the constitutional violation was obvious and because of existing Circuit Court precedent that it perceived to be factually analogous.  Kisela filed a petition for rehearing en banc and, over the dissent of seven judges in the Court of Appeals, it was denied. Kisela then filed a petition for certiorari to the United States Supreme Court, which was granted.

In its 7-2 per curiam opinion, the United States Supreme Court reversed the Ninth Circuit, holding that Kisela was entitled to qualified immunity. The Court determined that it need not decide whether Kisela’s use of deadly force violated Hughes’ constitutional rights, as there was no prior existing case law with a factually-comparable scenario that clearly established that his conduct violated the law.  Kisela was confronted with a woman who had hacked a tree with a kitchen knife; behavior that was erratic enough to cause a neighbor to call 911. Kisela was separated by Hughes and Chadwick once the officer arrived on the scene, by a chain-linked fence. Hughes then failed to acknowledge at least two commands to drop the knife when she was within “striking distance” of Chadwick.  The majority determined this was far from an obvious case in which any competent officer would have known that shooting Hughes to protect Chadwick would violate the Fourth Amendment. It further held that there were no prior cases with analogous factual scenarios that could have put Kisela on notice that his conduct violated a clearly-established constitutional right.  Thus, since any potential unlawfulness of Officer Kisela’s conduct was not “clearly established” at the time of the incident, he was entitled to qualified immunity.

Should you have any questions regarding this Court decision, or require assistance with a police liability issue, please contact Ryan Greely at (312) 506-4462 or  [email protected].