SUPREME COURT OF THE UNITED STATES
ANDREW KISELA v.
on petition for writ of certiorari to the united states court of appeals for the ninth circuit
No. 17–467. Decided April 2, 2018
Justice Sotomayor, with whom Justice Ginsburg joins, dissenting.
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.
If this account of Kisela’s conduct sounds unreasonable, that is because it was. And yet, the Court today insulates that conduct from liability under the doctrine of qualified immunity, holding that Kisela violated no “clearly established” law. See ante,
I disagree. Viewing the facts in the light most favorable to Hughes, as the Court must at summary judgment, a jury could find that Kisela violated Hughes’ clearly established
Fourth Amendment rights by needlessly resorting to lethal force. In holding otherwise, the Court misapprehends the facts and misapplies the law, effectively treating qualified immunity as an absolute shield. I therefore respectfully dissent.
This case arrives at our doorstep on summary judgment, so we must “view the evidence . . . in the light most favorable to” Hughes, the nonmovant, “with respect to the central facts of this case.” Tolan
, 572 U. S. ___, ___ (2014) (per curiam
) (slip op., at 8). The majority purports to honor this well-settled principle, but its efforts fall short. Although the majority sets forth most of the relevant events that transpired, it conspicuously omits several critical facts and draws premature inferences that bear on the qualified-immunity inquiry. Those errors are fatal to its analysis, because properly construing all of the facts in the light most favorable to Hughes, and drawing all inferences in her favor, a jury could find that the following events occurred on the day of Hughes’ encounter with the Tucson police.
On May 21, 2010, Kisela and Officer-in-Training Alex Garcia received a “ ‘check welfare’ ” call about a woman chopping away at a tree with a knife. 862 F. 3d 775, 778 (CA9 2016). They responded to the scene, where they were informed by the person who had placed the call (not Chadwick) that the woman with the knife had been acting “erratically.” Ibid.
A third officer, Lindsay Kunz, later joined the scene. The officers observed Hughes, who matched the description given to the officers of the woman alleged to have been cutting the tree, emerge from a house with a kitchen knife in her hand. Hughes exited the front door and approached Chadwick, who was standing outside in the driveway.
Hughes then stopped about six feet from Chadwick, holding the kitchen knife down at her side with the blade pointed away from Chadwick. Hughes and Chadwick conversed with one another; Hughes appeared “composed and content,” Record 109, and did not look angry. See 862 F. 3d, at 778. At no point during this exchange did Hughes raise the kitchen knife or verbally threaten to harm Chadwick or the officers. Chadwick later averred that, during the incident, she was never in fear of Hughes and “was not the least bit threatened by the fact that [Hughes] had a knife in her hand” and that Hughes “never acted in a threatening manner.” Record 110–111. The officers did not observe Hughes commit any crime, nor was Hughes suspected of committing one. See 862 F. 3d, at 780.
Nevertheless, the officers hastily drew their guns and ordered Hughes to drop the knife. The officers gave that order twice, but the commands came “in quick succession.” Id.,
at 778. The evidence in the record suggests that Hughes may not have heard or understood the officers’ commands and may not have been aware of the officers’ presence at all. Record 109–110, 195, 323–324 (Officer Kunz’s testimony that “it seemed as though [Hughes] didn’t even know we were there,” and “[i]t was like she didn’t hear us almost”); id.
304 (Officer Garcia’s testimony that Hughes acted “almost as if we weren’t there”). Although the officers were in uniform, they never verbally identified themselves as law enforcement officers.
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 chain-link fence. After being shot, Hughes fell to the ground, screaming and bleeding from her wounds. She looked at the officers and asked, “ ‘Why’d you shoot me?’ ” Id.,
at 308. Hughes was immediately transported to the hospital, where she required treatment for her injuries. Kisela alone resorted to deadly force in this case. Confronted with the same circumstances as Kisela, neither of his fellow officers took that drastic measure.
Police officers are not entitled to qualified immunity if “(1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was ‘clearly established at the time.’ ” District of Columbia
, 583 U. S. ___, ___ (2018) (slip op., at 13) (quoting Reichle
566 U. S. 658,
Faithfully applying that well-settled standard, the Ninth Circuit held that a jury could find that Kisela violated Hughes’ clearly established
Fourth Amendment rights. That conclusion was correct.
I begin with the first step of the qualified-immunity inquiry: whether there was a violation of a constitutional right. Hughes alleges that Kisela violated her
Fourth Amendment rights by deploying excessive force against her. In assessing such a claim, courts must ask “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them.” Graham
490 U. S. 386,
. That inquiry “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id.,
at 396; see also Tennessee
471 U. S. 1,
. All of those factors (and others) support the Ninth Circuit’s conclusion that a jury could find that Kisela’s use of deadly force was objectively unreasonable. 862 F. 3d, at 779–782. Indeed, the panel’s resolution of this question was so convincing that not a single judge on the Ninth Circuit, including the seven who dissented from denial of rehearing en banc, expressly disputed that conclusion. See id.
, at 791–799 (opinion of Ikuta, J.).
Neither does the majority here, which simply assumes without deciding that “a
Fourth Amendment violation occurred.” Ante
, at 4.
First, Hughes committed no crime and was not suspected of committing a crime. The officers were responding to a “check welfare” call, which reported no criminal activity, and the officers did not observe any illegal activity while at the scene. The mere fact that Hughes held a kitchen knife down at her side with the blade pointed away from Chadwick hardly elevates the situation to one that justifies deadly force.
Second, a jury could reasonably conclude that Hughes presented no immediate or objective threat to Chadwick or the other officers. It is true that Kisela had received a report that a woman matching Hughes’ description had been acting erratically. But the police officers themselves never witnessed any erratic conduct. Instead, when viewed in the light most favorable to Hughes, the record evidence of what the police encountered paints a calmer picture. It shows that Hughes was several feet from Chadwick and even farther from the officers, she never made any aggressive or threatening movements, and she appeared “composed and content” during the brief encounter.
Third, Hughes did not resist or evade arrest. Based on this record, there is significant doubt as to whether she was aware of the officers’ presence at all, and evidence suggests that Hughes did not hear the officers’ swift commands to drop the knife.
Finally, the record suggests that Kisela could have, but failed to, use less intrusive means before deploying deadly force. 862 F. 3d, at 781.
For instance, Hughes submitted expert testimony concluding that Kisela should have used his Taser and that shooting his gun through the fence was dangerous because a bullet could have fragmented against the fence and hit Chadwick or his fellow officers. Ibid.
; see also Bryan
, 630 F. 3d 805, 831 (CA9 2010) (noting that “police are required to consider what other tactics if any were available to effect the arrest” and whether there are “clear, reasonable, and less intrusive alternatives” (internal quotation marks and alteration omitted)). Consistent with that assessment, the other two officers on the scene declined to fire at Hughes, and one of them explained that he was inclined to use “some of the lesser means” than shooting, including verbal commands, because he believed there was time “[t]o try to talk [Hughes] down.” Record 120–121. That two officers on the scene, presented with the same circumstances as Kisela, did not use deadly force reveals just how unnecessary and unreasonable it was for Kisela to fire four shots at Hughes. See Plumhoff
, 572 U. S. ___, ___ (2014) (slip op., at 8) (“We analyze [the objective reason- ableness] question from the perspective of a reasonable officer on the scene” (internal quotation marks omitted)).
Taken together, the foregoing facts would permit a jury to conclude that Kisela acted outside the bounds of the
Fourth Amendment by shooting Hughes four times.
Rather than defend the reasonableness of Kisela’s conduct, the majority sidesteps the inquiry altogether and focuses instead on the “clearly established” prong of the qualified-immunity analysis. Ante
, at 4. To be “ ‘clearly established’ . . . [t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson
483 U. S. 635,
. That standard is not nearly as onerous as the majority makes it out to be. As even the majority must acknowledge, ante,
at 4, this Court has long rejected the notion that “an official action is protected by qualified immunity unless the very action in question has previously been held unlawful,” Anderson
, 483 U. S., at 640. “[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances.” Hope
536 U. S. 730,
. At its core, then, the “clearly established” inquiry boils down to whether Kisela had “fair notice” that he acted unconstitutionally. See ibid.
543 U. S. 194,
) (“[T]he focus” of qualified immunity “is on whether the officer had fair notice that her conduct was unlawful”).
The answer to that question is yes. This Court’s precedents make clear that a police officer may only deploy deadly force against an individual if the officer “has probable cause to believe that the [person] poses a threat of serious physical harm, either to the officer or to others.” Garner
, 471 U. S., at 11; see also Graham
, 490 U. S., at 397. It is equally well established that any use of lethal force must be justified by some legitimate governmental interest. See Scott
550 U. S. 372,
577 U. S. ___, ___–___ (2015) (Sotomayor, J., dissenting) (slip op., at 2–3).
Consistent with those clearly established principles, and contrary to the majority’s conclusion, Ninth Circuit precedent predating these events further confirms that Kisela’s conduct was clearly unreasonable. See Brosseau
, 543 U. S., at 199 (“[A] body of relevant case law” may “ ‘clearly establish’ ” the violation of a constitutional right); Ashcroft
563 U. S. 731,
(Kennedy, J., concurring) (“[Q]ualified immunity is lost when plaintiffs point either to ‘cases of controlling authority in their jurisdiction at the time of the incident’ or to ‘a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful’ ” (quoting Wilson
526 U. S. 603,
)). Because Kisela plainly lacked any legitimate interest justifying the use of deadly force against a woman who posed no objective threat of harm to officers or others, had committed no crime, and appeared calm and collected during the police encounter, he was not entitled to qualified immunity.
The Ninth Circuit’s opinion in Deorle
, 272 F. 3d 1272 (2001) proves the point. In that case, the police encountered a man who had reportedly been acting “erratically.” Id.,
at 1276. The man was “verbally abusive,” shouted “ ‘kill me’ ” at the officers, screamed that he would “ ‘kick [the] ass’ ” of one of the officers, and “brandish[ed] a hatchet at a police officer,” ultimately throwing it “into a clump of trees when told to put it down.” Id.,
The officers also observed the man carrying an unloaded crossbow in one hand and what appeared to be “a can or a bottle of lighter fluid in the other.” Id.,
at 1277. The man discarded the crossbow when instructed to do so by the police and then steadily walked toward one of the officers. Ibid.
In response, that officer, without giving a warning, shot the man in the face with beanbag rounds. Id.,
The man suffered serious injuries, including multiple fractures to his cranium and the loss of his left eye. Ibid
The Ninth Circuit denied qualified immunity to the officer, concluding that his use of force was objectively unreasonable under clearly established law. Id
., at 1285–1286. The court held, “Every police officer should know that it is objectively unreasonable to shoot . . . an unarmed man who: has committed no serious offense, is mentally or emotionally disturbed, has been given no warning of the imminent use of such a significant degree of force, poses no risk of flight, and presents no objectively reasonable threat to the safety of the officer or other individuals.” Id.
, at 1285.
The same holds true here. Like the man in Deorle
Hughes committed no serious crime, had been given no warning of the imminent use of force, posed no risk of flight, and presented no objectively reasonable threat to the safety of officers or others. In fact, Hughes presented even less
of a danger than the man in Deorle
, for, unlike him, she did not threaten to “kick [their] ass,” did not appear agitated, and did not raise her kitchen knife or make any aggressive gestures toward the police or Chadwick. If the police officers acted unreasonably in shooting the agitated, screaming man in Deorle
with beanbag bullets, a fortiori
Kisela acted unreasonably in shooting the calm-looking, stationary Hughes with real bullets. In my view, Deorle
and the precedent it cites place the unlawfulness of Kisela’s conduct “ ‘beyond debate.’ ” Wesby
, 583 U. S., at ___ (slip op., at 15).
The majority strains mightily to distinguish Deorle
, to no avail.
It asserts, for instance, that, unlike the man in Deorle
, Hughes was “armed with a large knife.” Ante
, at 7.
But that is not a fair characterization of the record, particularly at this procedural juncture. Hughes was not “armed” with a knife. She was holding “a kitchen knife—an everyday household item which can be used as a weapon but ordinarily is a tool for safe, benign purposes”—down at her side with the blade pointed away from Chadwick. 862 F. 3d, at 788 (Berzon, J., concurring in denial of rehearing en banc). Hughes also spoke calmly with Chadwick during the events at issue, did not raise the knife, and made no other aggressive movements, undermining any suggestion that she was a threat to Chadwick or anyone else. Similarly, the majority asserts that Hughes was “within striking distance” of Chadwick, ante
, at 7, but that stretches the facts and contravenes this Court’s repeated admonition that inferences must be drawn in the exact opposite direction, i.e.,
in favor of Hughes. See Tolan
, 572 U. S., at ___ (slip op., at 8). The facts, properly viewed, show that, when she was shot, Hughes had stopped and stood still about six feet away from Chadwick. Whether Hughes could “strik[e]” Chadwick from that particular distance, even though the kitchen knife was held down at her side, is an inference that should be drawn by the jury, not this Court.
The majority next posits that Hughes, unlike the man in Deorle
, “ignored the officers’ orders to drop the” kitchen knife. Ante
7. Yet again, the majority here draws inferences in favor of Kisela, instead of Hughes. The available evidence would allow a reasonable jury to find that Hughes did not hear or register the officers’ swift commands and that Kisela, like his fellow officers on the scene, should have realized that as well. See supra,
at 3–4. Accordingly, at least at the summary-judgment stage, the Court is mistaken in distinguishing Deorle
based on Hughes’ ostensible disobedience to the officers’ directives.
The majority also implies that Deorle
is distinguishable because the police in that case observed the man over a 40-minute period, whereas the situation here unfolded in less than a minute. Ante
, at 7.
But that fact favors Hughes, not Kisela. The only reason this case unfolded in such an abrupt timeframe is because Kisela, unlike his fellow officer, showed no interest in trying to talk further to Hughes or use a “lesser means” of force. See Record 120–121, 304.
Finally, the majority passingly notes that “this Court has already instructed the Court of Appeals not to read [Deorle
] too broadly.” Ante,
at 7 (citing City and County of San Francisco
, 575 U. S. ___, ___–___ (2015) (slip op., at 13–14)). But the Court in Sheehan
concluded that Deorle
was plainly distinguishable because, unlike in Deorle
, the officers there confronted a woman who “was dangerous, recalcitrant, law-breaking, and out of sight.” 575 U. S.,
at ___ (slip op., at 14). As explained above, however, Hughes was none of those things: She did not threaten or endanger the officers or Chadwick, she did not break any laws, and she was visible to the officers on the scene. See supra,
Thus, there simply is no basis for the Court’s assertion that “ ‘the differences between [Deorle
] and the case before us leap from the page.’ ” Ante,
at 7 (quoting Sheehan
, 575 U. S., at ___ (slip op., at 14)).
, moreover, is not the only case that provided fair notice to Kisela that shooting Hughes under these circumstances was unreasonable. For instance, the Ninth Circuit has held that the use of deadly force against an individual holding a semiautomatic rifle was unconstitutional where the individual “did not point the gun at the officers and apparently was not facing them when they shot him the first time.” Curnow
v. Ridgecrest Police
, 952 F. 2d 321, 325 (1991). Similarly, in Harris
, 126 F. 3d 1189 (1997), the Ninth Circuit held that the officer unreasonably used deadly force against a man who, although armed, made “no threatening movement” or “aggressive move of any kind.” Id.,
]* Both Curnow
establish that, where, as here, an individual with a weapon poses no objective and immediate threat to officers or third parties, law enforcement cannot resort to excessive force. See Harris
, 126 F. 3d, at 1201 (“Law enforcement officers may not shoot to kill unless, at a minimum, the suspect presents an immediate threat to the officers, or is fleeing and his escape will result in a serious threat of injury to persons”).
If all that were not enough, decisions from several other Circuits illustrate that the
Fourth Amendment clearly forbids the use of deadly force against a person who is merely holding a knife but not threatening anyone with it. See, e.g., McKinney
v. DeKalb County
, 997 F. 2d 1440, 1442 (CA11 1993) (affirming denial of summary judgment based on qualified immunity to officer who shot a person holding a butcher knife in one hand and a foot-long stick in the other, where the person threw the stick and began to rise from his seated position); Reyes
, 362 Fed. Appx. 403, 404–405 (CA5 2010) (reversing grant of summary judgment based on qualified immunity to officer who shot a person holding a kitchen knife in his apartment entryway, even though he refused to follow the officer’s multiple commands to drop the knife); Duong
v. Telford Borough
, 186 Fed. Appx. 214, 215, 217 (CA3 2006) (affirming denial of summary judgment based on qualified immunity to officer who shot a person holding a knife because a reasonable jury could conclude that the plaintiff was sitting down and pointing the knife away from the officer at the time he was shot and had not received any warnings to drop the knife).
Against this wall of case law, the majority points to a single Ninth Circuit decision, Blanford
v. Sacramento County
, 406 F. 3d 1110 (2005), as proof that Kisela reasonably could have believed that Hughes posed an immediate danger. But Blanford
involved far different circumstances. In that case, officers observed a man walking through a neighborhood brandishing a 2½-foot cavalry sword; officers commanded the man to drop the sword, identified themselves as police, and warned “ ‘We’ll shoot.’ ” Id.,
The man responded with “a loud growling or roaring sound,” which increased the officers’ concern that he posed a risk of harm. Id.,
In an effort to “evade [police] authority,” the man, while still wielding the sword, tried to enter a home, thus prompting officers to open fire to protect anyone who might be inside. Id.,
at 1113, 1118.
The Ninth Circuit concluded that use of deadly force was reasonable in those circumstances. See id.,
This case differs significantly from Blanford
in several key respects. Unlike the man in Blanford
, Hughes held a kitchen knife down by her side, as compared to a 2½-foot sword; she appeared calm and collected, and did not make threatening noises or gestures toward the officers on the scene; she stood still in front of her own home, and was not wandering about the neighborhood, evading law enforcement, or attempting to enter another house. Moreover, unlike the officers in Blanford
, Kisela never verbally identified himself as an officer and never warned Hughes that he was going to shoot before he did so. Given these significant differences, no reasonable officer would believe that Blanford
justified Kisela’s conduct. The majority’s conclusion to the contrary is fanciful.
* * *
In sum, precedent existing at the time of the shooting clearly established the unconstitutionality of Kisela’s conduct. The majority’s decision, no matter how much it says otherwise, ultimately rests on a faulty premise: that those cases are not identical to this one. But that is not the law, for our cases have never required a factually identical case to satisfy the “clearly established” standard. Hope
, 536 U. S., at 739. It is enough that governing law places “the constitutionality of the officer’s conduct beyond debate.” Wesby
, 583 U. S., at ___ (slip op., at 13) (internal quotation marks omitted). Because, taking the facts in the light most favorable to Hughes, it is “beyond debate” that Kisela’s use of deadly force was objectively unreasonable, he was not entitled to summary judgment on the basis of qualified immunity.
For the foregoing reasons, it is clear to me that the Court of Appeals got it right. But even if that result were not so clear, I cannot agree with the majority’s apparent view that the decision below was so manifestly incorrect as to warrant “the extraordinary remedy of a summary reversal.” Major League Baseball Players Assn.
532 U. S. 504
–513 (2001) (Stevens, J., dissenting). “A summary reversal is a rare disposition, usually reserved by this Court for situations in which the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error.” Schweiker
450 U. S. 785,
(Marshall, J., dissenting); Office of Personnel Management
496 U. S. 414,
(“Summary reversals of courts of appeals are unusual under any circumstances”). This is not such a case. The relevant facts are hotly disputed, and the qualified-immunity question here is, at the very best, a close call. Rather than letting this case go to a jury, the Court decides to intervene prematurely, purporting to correct an error that is not at all clear.
This unwarranted summary reversal is symptomatic of “a disturbing trend regarding the use of this Court’s resources” in qualified-immunity cases. Salazar-Limon
, 581 U. S. ___, ___ (2017) (Sotomayor, J., dissenting from denial of certiorari) (slip op., at 8). 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.” Id.,
at ___–___ (slip op., at 8–9); see also Baude, Is Qualified
Immunity Unlawful? 106 Cal. L. Rev. 45, 82 (2018) (“[N]early all of the Supreme Court’s qualified immunity cases come out the same way—by finding immunity for the officials”); Reinhardt, The Demise of Habeas Corpus and the Rise of Qualified Immunity: The Court’s Ever Increasing Limitations on the Development and Enforcement of Constitutional Rights and Some Particularly Unfortunate Consequences, 113 Mich. L. Rev. 1219, 1244–1250 (2015). 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
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.