The Supreme Court ruled yesterday that a Tucson police officer who shot a woman four times could not be sued for violating the woman’s Constitutional rights. The case is a significant win for government officials. It’s a significant loss for plaintiffs seeking civil recovery against police officers in excessive force claims. Regardless of the short term victory or defeat, the long term development of cases like these remains murky and uncertain.
Police Shoot a “Calm” Woman, Carrying a Knife at Her Side, Who Ignored Police Instructions to Drop the Knife.
Officer Andrew Kisela of the Tucson Police Department was among two other officers responding to 911 a call that a woman acting erratically with a large kitchen knife was hacking at a tree. Kisela and the other officers arrived at a house where they first saw a woman named Chadwick in the front yard. Within seconds, Amy Hughes came from the side of the house carrying a large kitchen knife at her side.
Hughes seemed calm as she walked to within six feet of Chadwick in the front yard of the house. When she got to that distance from Chadwick, Hughes stopped. The officers, separated from both women by a chain link fence, drew their guns and twice yelled for Hughes to drop her knife. Chadwick told both the officers and Hughes to take it easy. Hughes didn’t acknowledge the officers and didn’t drop the knife. Officer Kisela, fearful that Hughes might harm Chadwick, shot Hughes four times.
The entire encounter, from the time police arrived at the scene until shooting Hughes, took approximately a minute.
Shot Woman Sues – First She Loses, then She Wins, then She Loses Again.
Hughes survived her injuries and brought suit against Kisela. She alleged that Kisela violated her Fourth Amendment right to be free from unreasonable searches and seizures. A federal District Court dismissed Hughes’s lawsuit. The U.S. Court of Appeals for the Ninth Circuit reversed and ordered the case remanded for a new trial.
Officer Kisela petitioned the US Supreme Court for relief. The US Supreme Court reversed the Ninth Circuit in a summary per curiam opinion (i.e., an opinion for the Court that does not identify the author) and, without written briefs or oral argument, dismissed Hughes’s lawsuit.
Supreme Court Makes Clear: Qualified Immunity Exempts Police from Civil Suit Almost All the Time.
The Supreme Court did not reach the question of whether Kisela violated Hughes’s Fourth Amendment rights when he shot her. Instead, the Supreme Court ruled that Kisela enjoyed qualified immunity from civil suit. Because Kisela had qualified immunity, the Court held the case ended with that determination.
A police officer enjoys “qualified immunity” if his conduct does not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” “In other words, immunity protects all but the plainly incompetent [police officer] or those who knowingly violate the law.”
In Kisela, the Supreme Court observed that whether conduct violates the Fourth Amendment is an intensely fact-specific question. Change the facts a little, and the outcome of the case may change. Because of that the Court held that police officers are entitled to immunity from civil suit “unless existing [court] precedent ‘squarely governs’ the specific facts at issue.” So, unless there is controlling legal authority that puts an officer on notice that a particular set of circumstances makes a shooting unlawful, an officer is generally immune from civil liability for the shooting.
Justices Sotomayor and Ginsburg dissented from the per curiam ruling. They reasoned that Officer Kisela’s opinion that Chadwick was in danger from Hughes was objectively unreasonable. They also wrote that Kisela could have used less lethal force than shooting Hughes who was not suspected of committing any crime at the time she was shot. Finally, they reasoned that the Ninth Circuit, in a previous case, had sufficiently put the police on notice that shootings like this one violated the Fourth Amendment.
Lessons Learned
- Before a Court may consider whether a citizen’s Constitutional rights were violated, it must first consider whether the officer accused of misconduct had “qualified immunity.”
- “Qualified Immunity” means that officers cannot be sued for use of force unless they knew, at the time of a shooting, that using deadly force in the circumstances of that particular case would violate “clearly established” law.
- For an officer to know that “clearly established law” prohibited a particular shooting, there must be a controlling court opinion involving a case with similar facts that holds that the conduct was unlawful. Only then can an officer reasonably be expected to know that his planned conduct would violate the Constitution.
- Police officers, and not just the lawyers litigating civil rights claims, need to be fluent with the Court cases that govern police officers’ use of force. It’s not enough to know general rules. Officers and counsel need to know the specific facts of cases. Officers on the street need to be prepared to think through the facts of those cases and assess whether the shots they are about to fire violate the Fourth Amendment.
The Supreme Court’s opinion leaves plenty for police advocates to savor. The circumstances in which an officer, and the insurer or local government that may have to pay a civil judgment against the officer, will be held liable, even for shootings involving people who aren’t committing a crime, remain very narrow. The Supreme Court has signaled, again, that cases against police officers are viewed by the Courts with significant skepticism. The courts are required to show considerable deference to police officers who have to make split second decisions in difficult circumstances.
By the same token, the Court’s opinion will leave many on both sides of this debate uneasy. As a threshold matter, the Court refused to say whether Kisela’s shooting of Hughes violates the Fourth Amendment. Only the Court can answer that question, and, for now, we will have to wait to find out what that answer is.
Even more difficult, the Court has endorsed an almost impossible to apply standard for deciding when police shootings are immunized from civil suit. The standard depends on police officers doing two very difficult things even before they do the difficult work of policing a community. Frist, officers have to stay abreast of Constitutional law cases and learn their facts and reconcile conflicting case opinions. There are hundreds of these cases and new ones are issued almost every month. Then, having become Constitutional law professors between shifts, officers have to apply those nuanced fact distinctions to active calls for help.
How hard is this going to be for police? Well, consider for example the Supreme Court’s opinion in Kisela. In this very case, seven Justices of the Supreme Court concluded that Ninth Circuit precedent makes it an open question whether this shooting was lawful. Two other Justices, though, came to the exact opposite conclusion.
The Chief Justice and Associate Justices of the Supreme Court of the United States are pretty good Constitutional law scholars. Intending no disrespect to the Tucson Police Department, they are probably better Constitutional scholars than most of the officers in that Department. Yet, even the eminent scholars and legal minds on the Supreme Court could not agree what past Ninth Circuit cases meant for this case.
In light of all that, what chance does a patrolman, working midnights, have, when a call comes in that there’s an erratic lady with a knife?
For that matter, what chance does a citizen, without regular Police Academy updates on Constitutional law, have of knowing the scope of police authority?
Kisela leaves in place a qualified immunity standard that will make little sense to most people involved in police/citizen interactions. These people won’t, realistically speaking, spend their evenings poring over Supreme Court and Court of Appeals opinions. Rather, their victory or defeat in court will turn on arcane and inscrutable case analyses far removed from their real world experiences.
More frustratingly, police on the street will remain uncertain of the limits of their power and citizens will remain confused about what sort of conduct might permissibly result in the use of police force. That’s not just annoying. It’s dangerous.
Predictability is our friend in an emergency. Uncertainty and tentativeness are ingredients for tragedy.
The Court has invited the police to become experts in Court opinions and case law and to apply that academic expertise on a moment’s notice in dark alleys and when responding to emergency calls for help. The far better course would be to set out clear guidelines about when deadly force is lawful. Then, allow lower court judges and juries to decide whether those guidelines were followed.