Supreme Court Says Shooting A Non-Threatening Person Without Warning Is Just Good Police Work

The Supreme Court -- without additional input -- has decided it's still OK for officers to kill people as long as they can express some sort of fear in a courtroom setting.

In Kisela v. Hughes, the justices overturned – without briefing or oral argument – the ruling of the U.S. Court of Appeals for the 9th Circuit in favor of Amy Hughes, whom police corporal Andrew Kisela shot and wounded in 2010. Kisela had responded to reports that Hughes was in the street with a large knife “screaming and crying very loud”; when he arrived, he saw Hughes approaching another woman. After Hughes ignored orders to drop the knife and continued to move toward the woman, Kisela fired at Hughes. The shots struck Hughes several times, although her injuries were not life-threatening.

Hughes filed a lawsuit against Kisela, alleging that the shooting violated her federal civil rights. A federal district judge ruled for Kisela, but the 9th Circuit reversed. Today, in an unsigned opinion, the Supreme Court reversed the 9th Circuit’s ruling. The opinion explained that, even if Kisela had violated the Fourth Amendment by using deadly force against Hughes (which the ruling described as “a proposition that is not at all evident”), Kisela still could not be sued because any rights that he might have violated were not clearly established – a key factor in whether government officials enjoy immunity from lawsuits.

The Ninth Circuit's opinion stripped the officer of his immunity. This decision reestablishes it. And it reminds cops de-escalation rarely needs to be considered as a tactic because the courts will have their back in almost every case. While the presence of a knife suggests some sort of objective danger, the person experiencing the threat was Hughes' roommate, not the cops on the other side of the fence. (And she testified she did not feel threatened.) It took only 60 seconds for one officer to resort to deadly force, based solely on the fact that Hughes refused to immediately drop the knife.

The presence of a weapon changes the math a little, but it shouldn't change it so much as to dismiss this appeal with an unsigned opinion and zero input from the engaged parties. The dissenting opinion [PDF], written by Justice Sotomayor (and joined by Justice Ginsburg) points out the "threatening" situation used to justify the shooting wasn't all that threatening -- not even for other officers on the scene.

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,” Appellant’s Excerpts of Record 109 (Record), 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.” Id., at 120. 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.

[...]

Kisela did not wait for Hughes to register, much less respond to, the officers’ rushed commands. Instead, Kisela immediately and unilaterally escalated the situation. Without giving any advance warning that he would shoot, and without attempting less dangerous methods to deescalate the situation, he dropped to the ground and shot four times at Hughes (who was stationary) through a chainlink fence.

If this truly was a "reasonable" use of force under the circumstances, you'd think Hughes would be dead, shot by multiple officers multiple times. But only one officer found the situation dire enough to shoot Hughes without warning. By refusing to weigh the arguments (and by choosing to rebuke the Ninth Circuit Court of Appeals for stripping away the officer's immunity), the Supreme Court has issued another blank check to be cashed at will by officers all over the nation. When events are unfolding quickly, the proper answer is to escalate the situation, rather than try to slow everything down and see if everyone -- not just the cops -- can make it out alive.

Sotomayor then goes on to point out this isn't just a qualified immunity problem: it's a Supreme Court problem.

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.

This decision won't make the nation's policing any better. It will just make everything's that's already bad even worse.

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.

This is what it boils down to: a free pass on deadly force. Unless the courts can push a case directly on point in front of the justices, officers will get a pass just for claiming they feared… something. As Scott Greenfield points out, the reason no discussion was needed prior to the SCOTUS decision is the court already knew what it thought about reasonable uses of force, and this one was reasonable enough to dispense with the opening pleasantries.

Whether it’s “palpably unreasonable,” however, ignores the Supreme Court’s holding. It is not so glaringly wrong to the majority of the Court, to the majority of Americans and to the majority of police officers. In baseball, a tie goes to the runner. In police shootings, a tie goes to the cop. If there is any question of threat, the law is prepared to give the cop the benefit of the doubt. And whether there is any question of threat is a decision only cops can make. We don’t get a vote.

This type of city hall can't be fought. It can only be adjusted to. Unreasonable deployments of force will still be considered "objectively reasonable" in a great majority of decisions. Violations of rights won't be treated as violations unless they're so flagrant even deferential courts can't ignore them. Every decision like this is just another stack of paper to add to citable case law when defending officers who've killed people who really didn't need killing.