Qualified Immunity and “Notice” for Police Officers

Emily Westerfield, Associate Member, University of Cincinnati Law Review

Background  

When the Supreme Court decided Kisela v. Hughes in April of 2018, the Court held that a police officer did not violate any clearly established law when he shot a woman four times through a chain-link fence after she failed to respond to two demands to drop a kitchen knife that she held at her side while she spoke to her roommate outside of their residence.[1] The Supreme Court previously held that qualified immunity attaches to circumstances in which “an official’s conduct does not violate clearly established statutory or constitutional rights which a reasonable person would have known.”[2] Thus, the Supreme Court held that the police officer in Kisela was entitled to qualified immunity.[3]

Kisela was first brought before the District Court when the woman shot by the police officer, Hughes, sued the officer, Kisela, under Rev. Stat. §1979 and 42 U.S.C. §1983 for use of excessive force against her in violation of the Fourth Amendment.[4] The District Court granted Kisela’s motion for summary judgment, however, the Ninth Circuit reversed.[5] The Ninth Circuit held that, when viewed in the light most favorable to Hughes, the evidence indicates that Kisela did, per Hughes’ complaint, violate the Fourth Amendment when he shot her four times.[6] While the Supreme Court effectively reversed the Ninth Circuit’s ruling, the Court majority refused to consider the issue of whether a Fourth Amendment violation actually occurred.[7] Rather, the Court reasoned that the constitutional issue was essentially rendered irrelevant in the face of the record, which unequivocally demonstrated that Kisela was entitled to qualified immunity when he shot Hughes.[8]

The dissent, penned by Justice Sotomayor and joined by Justice Ginsburg, considered the per curiam majority opinion not only erroneous, but dangerous in its treatment of such a case.[9] According to the dissenting opinion, the majority sent “an alarming signal to law enforcement officers and the public . . . [telling] officers that they can shoot first and think later.”[10] By taking a significantly more in-depth look at the facts of the case and the applicable case law than the per curiam majority, Sotomayor’s dissent illuminates the somewhat dismissive nature of the majority opinion. While the dissent holds police officers to a higher standard than the majority, the standard seems reasonable given existing precedent from the Supreme Court and the Ninth Circuit.

The Majority

            Instead of honing in on the issue of whether Kisela violated the Fourth Amendment when he shot Hughes, the majority focused on determining whether it was clearly established that shooting Hughes would violate the Fourth Amendment and, consequently, whether Kisela was entitled to qualified immunity. As the majority attempted to explain the point at which a constitutional right becomes “clearly established” within a particular fact pattern, it oscillated between the concept that existing precedent must “‘squarely govern[]’”[11] the facts of the case and the notion that a case need not necessarily be “‘directly on point’”[12] in order to render the constitutional right at issue “clearly established.”[13] Furthermore, while the majority opinion concedes that “‘general statements of the law are not inherently incapable of giving fair and clear warning to officers,’”[14] it provides that in order for a right to have been “clearly established” in a certain situation—such that an official who violated that right would not be entitled to qualified immunity—“existing precedent must have placed the statutory or constitutional question beyond debate.”[15]

Ultimately, the majority reasoned that issues involving the use of excessive force depend heavily on the facts of each case.[16] Therefore, where a Fourth Amendment violation involving excessive force is concerned, a court cannot hold that a police officer has “‘violated a clearly established right unless the right’s contours were sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating it.’”[17] In other words, according to the majority opinion, the facts of a prior case need to be exceptionally similar to the facts of the current case in order for a court to determine that a police officer had adequate notice that his actions violated the Fourth Amendment and, thus, would not be entitled to qualified immunity.

Here, the majority held that even if it had determined that Kisela’s actions constituted excessive force in violation of the Fourth Amendment, Kisela was entitled to qualified immunity because there was no such case law that was sufficiently similar to the situation Kisela found himself in when he shot Hughes.[18] After reaching that conclusion, the majority referred to a certain set of facts from the record which supported that viewpoint. First, Kisela testified that while he did not believe that he and his two fellow officers, who were separated from Hughes by a chain-link fence, were in any danger, Kisela was concerned about the safety of Hughes’s roommate, who was standing just a few feet away from Hughes.[19] Second, Kisela had responded to a report that Hughes was acting erratically and, specifically, that Hughes was “hacking a tree with a large kitchen knife.”[20] Third, Hughes failed to respond to two commands to drop the kitchen knife she held at her side, despite the commands having been loud enough for Hughes’s roommate to hear them.[21]

Based on the above facts, the majority concluded that it was “far from an obvious case in which any competent officer would have known that shooting Hughes to protect [her roommate] would have violated the Fourth Amendment.”[22] To support that conclusion, the majority distinguished the facts in the case at hand from the facts in a previous Ninth Circuit case, Deorle v. Rutherford, where excessive force by a police officer and qualified immunity were also at issue. In Deorle, the Ninth Circuit held that a police officer who shot a man in the face with beanbag rounds was not entitled to qualified immunity because “his use of force was objectively unreasonable under clearly established law.”[23] The record in that case demonstrated that police officers responded to a report of a man acting erratically, and that the man was “verbally abusive” toward the officers when they arrived at the scene.[24] The man “brandish[ed] a hatchet” at one of the officers before tossing it away when he was told by the officers to put it down.[25] The man was also holding an unloaded crossbow in one hand, which he put down when instructed to so by the officers, and what looked like a can of lighter fluid in the other hand.[26] After about a forty-minute period of being observed by the officers, one of those officers shot the man in the face with a round of beanbags and seriously injured him when the man began steadily walking toward the officers.[27] The majority held that because of several important differences between the situation described in Deorle and the situation Kisela was in when he shot Hughes, Deorle did not provide Kisela with adequate notice that his actions would constitute clear violations of Hughes’s Fourth Amendment rights.[28] The majority points out that unlike the man shot by the police officer in Deorle, Hughes was “armed with a large knife; was within striking distance of [her roommate]; ignored the officers’ orders to drop the weapon; and the situation unfolded in less than a minute.”[29]

The majority further supported its holding that Kisela did not violate any clearly established law or constitutional right by shooting Hughes by pointing to the similarities between the case at hand and the facts present in another Ninth Circuit case, Blanford v. Sacramento County. In Blanford, the Ninth Circuit held that a police officer’s use of deadly force against a man who was acting erratically while walking through a residential neighborhood with a sword in his hand, and who failed to drop the sword after officers repeatedly told him to put it down, did not violate the Fourth Amendment.[30] The majority asserted that, like the police officer who shot the man in Blanford, Kisela could have been acting under the reasonable belief that Hughes was a true threat to others.[31] Acting under that belief, Kisela would not have been acting in clear violation of the Fourth Amendment by shooting Hughes.[32] Thus, according to the majority, Kisela was entitled to qualified immunity.[33]

The Dissent

            In her dissenting opinion, Justice Sotomayor concluded that the Ninth Circuit correctly held that Kisela violated Hughes’s clearly established Fourth Amendment right against excessive force when he shot her four times through the chain-link fence.[34] Unlike the per curiam majority, Justice Sotomayor reached her conclusion by taking Kisela through the full two-prong qualified immunity analysis. The analysis, derived from the 2012 Supreme Court case Reichle v. Howard, is as follows: “[p]olice officers are 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.’”[35]

In her analysis of the first prong, Justice Sotomayor determined that a jury could have reasonably concluded, given the facts in the record, that Kisela’s use of deadly force against Hughes constituted the use of excessive force, and, thus, Kisela violated the Fourth Amendment.[36] The dissenting opinion noted that when evaluating claims of excessive force against a police officer, courts must determine whether “‘the [police officer’s] actions are objectively reasonable in light of the facts and circumstances confronting them.’”[37] According to the Supreme Court in Graham v. Connor, that analysis ought to include “‘the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.’”[38] In her detailed evaluation of the first prong of the qualified immunity analysis, Justice Sotomayor examined the facts of the case at hand in the context of each of the above three factors.

With regard to the first factor, the dissenting opinion indicated that no crime had been reported; rather, the three police officers arrived at Hughes’s residence after receiving a report that Hughes had been “acting erratically.”[39] Additionally, Hughes committed no crime while in the presence of the police officers.[40] As Justice Sotomayor considered the second factor, she determined that a jury could have reasonably concluded that Hughes posed no threat to the three police officers or her roommate.[41] While the police report alleged that Hughes had been acting erratically, the dissent pointed out that Hughes never made any threatening gestures or movements as she stood talking to her roommate; the record even suggested that Hughes was calm.[42] With regard to the third factor, the dissent concluded that Hughes never resisted or evaded arrest by the officers on the scene.

The consideration of other relevant factors further led the dissent to conclude that the facts could have led a jury to reasonably conclude that Kisela violated the Fourth Amendment. For instance, the fact that Hughes failed to acknowledge the officers’ commands to drop the knife suggest that she may not have been aware of the officers’ presence.[43] That possibility is bolstered by the significant distance and the chain-link fence separating the officers from Hughes. Primarily, however, the dissent argued that Kisela could have used “less intrusive means before deploying deadly force.”[44] Expert testimony made clear that Kisela should have used a taser instead of a gun to shoot Hughes.[45] The dissent was particularly concerned with the fact that Kisela’s fellow officers who were confronted with the same set of circumstances did not shoot at Hughes.[46] According to the dissent, that fact exposes the “unnecessary and unreasonable” nature of Kisela’s actions in that moment.[47] Ultimately, the dissent’s excessive force analysis leaves little room for argument that Kisela may have acted within the bounds of the Fourth Amendment when he shot Hughes.

The majority concluded that Kisela not only violated the Fourth Amendment when he shot Hughes, but that Hughes’s Fourth Amendment right against excessive force was clearly established when the violation occurred.[48] In making the latter determination, the dissent emphasized that the “clearly established” standard is actually less stringent than the majority insists.[49] This concept is supported by existing Supreme Court precedent. In Anderson v. Creighton, for example, the Court “rejected the notion that ‘an official action is protected by qualified immunity unless the very action in question has previously been held unlawful.’”[50] Furthermore, in Hope v. Peltzer, the Court asserted that “‘officials can still be on notice that their conduct violates established law even in novel factual circumstances.’”[51] The dissent drew from that existing precedent in concluding that “the ‘clearly established’ inquiry boils down to whether Kisela had ‘fair notice’ that he acted unconstitutionally.”[52] According to the dissent, existing precedent derived from both the Supreme Court and the Ninth Circuit undoubtedly provided Kisela with sufficient notice that his actions in the situation he found himself in violated the Fourth Amendment.[53]

Supreme Court precedent provides 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.’”[54] According to the dissent, Hughes posed no such threat to the officers, who were separated from her by a chain link fence; nor did Hughes pose such a threat to her roommate, to whom Hughes made no verbal threat or gesture which could reasonably be interpreted as threatening.[55] The dissent further indicates that the Court has clearly provided that “any use of lethal force must be justified by some legitimate government interest.”[56] And, according to the dissent, “Kisela 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.”[57] The above doctrines constituted longstanding legal principles at the time Kisela shot Hughes.

The notice that well-established Supreme Court precedent provided to Kisela was only reinforced by existing Ninth Circuit precedent indicating that “Kisela’s conduct was clearly unreasonable.”[58] In Curnow v. Ridgecrest Police, for example, the Ninth Circuit held that police officers violated the Fourth Amendment when they employed deadly force against an individual who was holding a semiautomatic rifle at the time because the individual “‘did not point the gun at the officers and apparently was not facing them when they shot him the first time.’”[59] Additionally, the Ninth Circuit held in Harris v. Roderick that a police officer violated the Fourth Amendment when he used deadly force against a man who was armed but made no “‘aggressive move of any kind.’”[60] Moreover, the Ninth Circuit further provided in Harris that “[l]aw 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.”[61]

According to the Supreme Court in Wilson v. Layne, “qualified 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.’”[62] Thus, according to the dissent, Kisela was not entitled to qualified immunity when he shot Hughes.[63]

 

Conclusion

            In Kisela, the majority opinion and dissenting opinion present very different views of the facts. Their differing viewpoints turn largely on how Kisela’s perception of Hughes was, and ought to have been, affected by the initial police report indicating that Hughes had been “acting erratically.” According to the majority opinion, when Kisela arrived at the scene, he observed a woman with a knife in her hand, standing a few feet away from her roommate, who could do anything at any moment. Thus, the majority paints Kisela’s perception of Hughes as armed, dangerous, and unpredictable. The dissent, on the other hand, notes that, while the report described Hughes as “erratic,” the record indicates that Hughes appeared calm as she stood talking to her roommate in front of their shared residence. While Hughes had a kitchen knife in her hand during their conversation, she never raised the knife from her side, or in any way indicated that she planned to use the knife to attack her roommate. Ultimately, the majority defers to Kisela’s potential fear and general uncertainty at confronting a woman who had previously been “acting erratically” and had a knife in her hand. The dissent, on the other hand, considers how a reasonable police officer in Kisela’s position would have acted, focusing primarily on the events that occurred at the scene itself. The actions of Kisela’s fellow officers, who were confronted with the same set of facts and circumstances as Kisela, aid this analysis. Those officers did not shoot at Hughes.

Even without knowing whether two other officers in the same situation would have shot at Hughes, the dissent insists that longstanding Supreme Court and Ninth Circuit precedent provided Kisela with notice that shooting Hughes would constitute excessive force in clear violation of the Fourth Amendment. The majority, however, insists that prior case law was not sufficiently similar to the facts at hand to provide Kisela with adequate notice that shooting Hughes would violate the Fourth Amendment. While the difference in opinion does seem to come down to their differing views of the facts, it also comes down to their differing views about how similar the facts of prior cases must be to the situation a police officer faces in order to provide an officer with sufficient notice that certain acts would violate the Fourth Amendment. As discussed above, both the majority and dissent note that, according to Supreme Court precedent, the facts of a current case do not have to completely align with a prior case in order for the holding of the prior case to put an officer in the current case on notice that his actions would violate a clearly established constitutional right. The dissenting opinion reflects this legal principle. It seems that the majority, on the other hand, after expressly conceding to the principle, proceeds thereafter to jettison the principle when it compares the facts from Kisela to the facts of prior cases.

[1] Kisela v. Hughes, 138 S. Ct. 1148, 1150 (2018).

[2] White v. Pauly, 137 U.S. 548, 551 (2017).

[3] Kisela, 138 S. Ct. at 1150.

[4] Id. at 1151.

[5] Id. at 1151-52.

[6] Id.

[7] Id. at 1150.

[8] Id.

[9] Kisela, 138 S. Ct. at 1152.

[10] Id.

[11] Id. at 1153 (quoting Mullenix v. Luna, 136 U.S. 305, 308 (2015)).

[12] Kisela, 138 S. Ct. at 1153 (quoting White, 137 U.S. at 551).

[13] Kisela, 138 S. Ct. at 1153.

[14] Id. (quoting White, 137 U.S. at 551).

[15] Id.

[16] Id. at 1152 (citing Mullenix, 136 U.S. at 308).

[17] Kisela, 138 S. Ct. at 1153 (quoting Plumhoff v. Rickard, 572 U.S. 765, 779 (2014)).

[18] Kisela, 138 S. Ct. at 1153

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Deorle v. Rutherford, 272 F. 3d 1272, 1286-86 (9th Cir. 2001).

[24] Id. at 1276-77.

[25] Id.

[26] Id. at 1277.

[27] Id. at 1278.

[28] Kisela, 138 S. Ct. at 1154.

[29] Id.

[30] Blanford v. Sacramento County, 406 F. 3d 1110, 1112-1119 (9th Cir. 2005).

[31] Kisela, 138 S. Ct. at 1153-54.

[32] Id. at 1154.

[33] Id.

[34] Id. at 1156.

[35] Id.  (quoting Reichle v. Howard, 566 U.S. 658, 664 (2012).

[36] Id. at 1157-58.

[37] Id. at 1156-57 (citing Graham v. Connor, 490 U.S. 386, 397 (1989)).

[38] Id.

[39] Kisela, 138 S. Ct. at 1157.

[40] Id.

[41] Id.

[42] Id.

[43] Id.

[44] Id.

[45] Id.

[46] Id. at 1157.

[47] Id. at 1157.

[48] Id. at 1156.

[49] Id. at 1158.

[50] Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

[51] Kisela, 138 S. Ct. at 1158 (quoting Hope v. Peltzer, 536 U.S. 730, 741 (2002)).

[52] Kisela, 138 S. Ct. at 1158 (citing Brosseau v. Haugen, 543 U.S. 194, 198 (2004)).

[53] Kisela, 138 S. Ct. at 1158.

[54] Id.  at 1158 (quoting Tennessee v. Garner, 471 U.S. 1, 11 (1985)).

[55] Kisela, 138 S. Ct. at 1159.

[56] Id. at 1158 (citing Scott v. Harris, 550 U.S. 372, 383 (2007)).

[57] Kisela, 138 S. Ct. at 1158.

[58] Kisela, 138 S. Ct. at 1158.

[59] Id.  at 1160 (quoting Curnow v. Ridgecrest Police, 952 F. 2d. 321, 325 (9th Cir. 1991)).

[60] Kisela, 138 S. Ct. at 1160 (quoting Harris v. Roderick, 126 F. 3d 1189, 1203 (9th Cir. 1997)).

[61] Harris, 126 F. 3d at 1203.

[62] Id. (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)).

[63] Kisela, 138 S. Ct. at 1158.

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