by Lisa Soronen, executive director, State and Local Legal Center

The Supreme Court issues a few summary reversals during a term, where it overturns a lower court decision without a briefing or an oral argument. Summary reversals don't receive much attention because they are “usually reserved . . . for situations in which the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error.” While the majority of the Supreme Court sees Kisela v. Hughes this way, Justice Sotomayor disagreed in a headline-grabbing dissenting opinion that described this case as allowing police officers to “shoot first and think later.”   

Officers arrived at Amy Hughes’s house after being told a woman was hacking a tree with a kitchen knife. Officers saw Hughes emerge from her house carrying a large kitchen knife at her side. Hughes stopped no more than six feet away from her roommate, Sharon Chadwick. After officers told Hughes twice to drop the knife and she did not comply, Officer Kisela shot her four times.

State and local government officials can be sued for money damages in their individual capacity if they violate a person’s constitutional rights. Qualified immunity protects government officials from such lawsuits where the law they violated isn’t “clearly established.”

The Ninth Circuit ruled that Officer Kisela used unreasonable force in violation of the Fourth Amendment and denied him qualified immunity, concluding the constitutional violation was obvious.

The Supreme Court in a per curium (unauthored) opinion disagreed. It accepted the Ninth Circuit's ruling without deciding that Officer Kisela’s use of force was excessive. But the Court granted him qualified immunity, noting this is “far from an obvious case in which any competent officer would have known that shooting Hughes to protect Chadwick would violate the Fourth Amendment.” Officer Kisela believed Hughes was a threat to Chadwick, he had only seconds to assess the danger, Hughes had just been seen hacking a tree, and she failed to acknowledge two commands to drop the knife which were loud enough for her roommate to hear.  

The majority of the Court was unimpressed with the Ninth Circuit's cases that Hughes cited to illustrate it was clearly established that the force Officer Kisela used was excessive. According to the Court, the most analogous precedent favors Officer Kisela. And “not one of the decisions relied on by the Court of Appeals . . . supports denying Kisela qualified immunity.”

Justice Ginsburg joined Justice Sotomayor’s dissenting opinion that pointed to facts they believe indicate qualified immunity wasn’t appropriate, including that Hughes “posed no objective threat of harm to officers or others, had committed no crime, and appeared calm and collected during the police encounter.”

The dissenters also criticized the Court for “routinely display[ing] 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.’”

Related Resources 

Will the Supreme Court Reverse Course on Qualified Immunity? This 2018 PM magazine article goes in-depth on the legal issues surrounding qualified immunity and why it is important to local government. 

Supreme Court Rules in Favor of D.C. in Raucous, Late-night Party Case. A 2018 blog post about another case involving police procedure and local government. 

Supreme Court Accepts First Amendment Retaliatory Arrest Case. in a 2017 blog post, the case in question revolved around the actions of a city when it came to a disruptive resident and the First Amendment. 




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