Sotomayor Sticks Up for the Victim of Police Gunfire

by Mary W Maxwell, LLB

I do not know what the Australian limit is on police. I guess a preemptive strike is OK, at least in Tasmania, since the police there, led by Andrew Fogarty, decided to kill Martin Bryant by setting Seascape cottage on fire.  Similarly, in Watertown MA, “unidentified” police shot 228 bullets into the boat where an unarmed 19-year-old, Jahar Tsarnaev, was sleeping.

I have never tried to track down US Supreme Court jurisprudence on police limits, as I AS I KNEW THEY WOULD RULE IN THE SPIRIT OF THE CONSTITUTION. Well, son of a gun, I was wrong.

The harrowing activities of the last week made me search today for “Constitution annotated, Cornell,” and then ask for the part of the Constitution that deals with the President’s power to enforce law. That is, Article II, section 3. Once there (thank you, Internet, thank you, Al Gore), I meant to check on Trump’s new orders, but I got side-tracked into state cases. The binding precedent by use of force by cops is Kisela v Hughes (2018).

I will recount, crudely, the facts in that case which today stands as precedent, and then print Justice Sotomayor’s dissenting opinion.  In fact, let me quote her final paragraph now. It will save you plowing through the argument, which you don’t really need to hear. The Majority’s ruling was what I called in the Troy Davis case, a “contortionist’s delight.” Sonia Sotomayor (whose autobiography is very interesting, called Beloved World) dissented as follows:

“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. The majority [of the justices] 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 nothing right or just under the law about this, I respectfully dissent.” 

Maxwell’s “Abstract”

The shooter is Officer Andrew Kisela, the shootee (she survived) is Amy Hughes.  The issue is qualified immunity (commonly granted to all government personnel). Ms Hughes brought suit under 42 USC 1983, a very generous-sounding law, which protects one’s civil rights.

Long story short, a woman named Chadwick approached a cop car and told the cops that someone had a knife, and described her appearance.  Less than a minute later, Hughes was shot four times by Kinsela. It later turned out – but police could not have known it — that Chadwick was a roommate of Hughes and owed her $20 and they had had an altercation about the money.

Sotomayor’s Lone Dissent (unedited but abridged)

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. See Bryan v. MacPherson (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 v. Rickard (2014), (“We analyze [the objective reasonableness] question from the perspective of a reasonable officer on the scene”.) 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 v. Creighton (1987).

That standard is not nearly as onerous as the majority makes it out to be. As even the majority must acknowledge, 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. “[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances.” Hope v. Pelzer (2002). At its core, then, the “clearly established” inquiry boils down to whether Kisela had “fair notice” that he acted unconstitutionally. Brosseau v. Haugen (2004) (per curiam) (“[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. [Editor: I am skipping some references]

It is equally well established that any use of lethal force must be justified by some legitimate governmental interest. See Scott v. Harris (2007); Mullenix v. Luna (2015), (SOTOMAYOR, J., dissenting). 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….

(“[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 v. Layne, (1999)).

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 v. Rutherford (2001) proves the point. In that case, the police encountered a man who had reportedly been acting “erratically.” 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.” 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.”

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. The man suffered serious injuries, including multiple fractures to his cranium and the loss of his left eye.

The Ninth Circuit denied qualified immunity to the officer, concluding that his use of force was objectively unreasonable under clearly established law. 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.”

The same holds true here. ….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 bean bag 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.’”

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.” 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.

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, 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…

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. 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. …

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. But that fact favors Hughes, not Kisela. The only reason this case unfolded in such an abrupt time-frame is because Kisela, unlike his fellow officer, showed no interest in trying to talk further to Hughes or use a “lesser means” of force.

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.”…. 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.

Deorle, 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 (1991).

Similarly, in Harris v. Roderick (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.”

Both Curnow and Harris 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. If anything, though, the context of Harris could be viewed as more dangerous than the context here because, unlike Hughes, the suspect in Harris had engaged in a firefight with other officers the previous day, during which officer was shot. [Editor: cases from other Circuits now omitted.]

Against this wall of case law, the majority points to a single Ninth Circuit decision, Blanford v. Sacramento County (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.’”

The man responded with “a loud growling or roaring sound,” which increased the officers’ concern that he posed a risk of harm.  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.

The Ninth Circuit concluded that use of deadly force was reasonable in those circumstances. 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.

…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.  See Major League Baseball Players Assn. v. Garvey (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 v. Hansen (1981) (Marshall, J., dissenting); Office of Personnel Management v. Richmond (1990), (“Summary reversals of courts of appeals are unusual under any circumstances”). This is not such a case. 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.” …

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 nothing right or just under the law about this, I respectfully dissent.   [All emphasis added]

Justice Ruth Bader Ginsburg joined this dissent.

My question (MM): What the Sam Hill did Alito, Breyer, Gorsuch, Kagan, Roberts, Scalia, and Thomas think they were doing? Seriously, whom do these guys work for?