Nahmod Law

Kisela v. Hughes

The Supreme Court did it again. In  Kisela v. Hughes, 138 S. Ct. — (2018)(per curiam), handed down on April 2, 2018, it reached out per curiam to reverse the Ninth Circuit in an excessive force qualified immunity case. The Ninth Circuit had itself reversed the district court’s grant of summary judgment to law enforcement officers on the ground that they violated clearly settled Fourth Amendment law. In the course of its opinion, the Court yet again chastised the Ninth Circuit (and implicitly other federal courts) for making the clearly settled law inquiry at too general a level.

In Kisela, police officers heard on a police report that a woman was engaging in “erratic behavior” with a knife, including hacking at a tree. When three officers arrived at the scene, they saw a woman, the plaintiff, holding a large kitchen knife at her side and moving toward another woman standing nearby, although the plaintiff never got closer than six feet. The other woman told the officers to “take it easy.” The three officers drew their guns but one of them, the defendant, shot her four times  through a chain link fence when she did not acknowledge their presence or drop the knife. She had refused to drop the knife after at least two commands to do so. All of this took place in less than a minute.

The officers later discovered that the plaintiff and the other woman were roommates, that the plaintiff had a history of mental illness and that the plaintiff was upset with her roommate because of a debt. The roommate stated in an affidavit that she never felt threatened, while the officers said that they “subjectively believed” that the plaintiff was a threat to the other woman.

The district court granted summary judgment to the defendant but the Ninth Circuit reversed because of circuit precedent that it considered analogous for clearly settled law purposes. On defendant’s petition for rehearing en banc, seven judges dissented from its denial. The Supreme Court in turn summarily reversed in a per curiam opinion.

The Court  emphasized that it had “repeatedly told courts–and the Ninth Circuit in particular–not to define clearly settled law at a high level of generality.” This was particularly appropriate in the excessive force Fourth Amendment setting where the results are always so fact-dependent. Here, the defendant had to make a split-second decision based on what he saw and knew. This was not an “obvious case” where any competent officer would have known that shooting the plaintiff would violate the Fourth Amendment. In addition, the Ninth Circuit relied on precedents that were distinguishable from this case, including one that was decided after the incident here and another that did not pass the “straight-face test.” Accordingly, the Court summarily reversed the Ninth Circuit and ruled that the defendant was protected by qualified immunity.

The Impassioned Dissent

Justice Sotomayor dissented, joined by Justice Ginsburg. She argued that the defendant violated clearly settled law in shooting the plaintiff. “[Plaintiff] 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 [her roommate] or anyone else.” Also, the other officers held their fire, while the defendant shot the plaintiff four times without warning. Thus, the defendant acted unreasonably and violated the Fourth Amendment. She then went on to address the clearly settled law inquiry, with the relevant question being: did the defendant have fair notice that his conduct was unconstitutional? Here, under Ninth Circuit precedent, the answer was yes. In her view, the Court’s attempt to distinguish those precedents was strained. Also, the decisions of other circuits indicated that the defendant violated clearly settled Fourth Amendment law.

Furthermore, Justice Sotomayor, went on, the Court made the mistake of drawing factual inferences in favor of the defendant rather than, as required, in favor of the plaintiff. Finally, she accused the Court of effectively, and improperly, requiring an identical case to establish clearly settled law: the Ninth Circuit had gotten it right. Justice Sotomayor concluded by asserting that the Court’s summary reversal was “symptomatic” of the Court’s “disturbing trend” in qualified immunity cases of intervening where law enforcement officers were perhaps improperly denied qualified immunity by lower courts but not intervening where law enforcement officers were perhaps improper granted qualified immunity. This “one-sided approach” was troubling and “asymetric” and in effect converted qualified immunity into absolute immunity.

Comments

1. Regardless of the particular Fourth Amendment and clearly settled law merits of Kisela, there is little doubt that the dissent was correct as an empirical matter in accusing the Court of asymmetry in the qualified immunity setting. Time and again the Court has reached out, sometimes without briefing and oral argument, as in Kisela itself, to reverse a pro-plaintiff qualified immunity determination.

2. In addition, both the Court and the dissent yet again informed other federal courts and litigants that the Court insists on almost identical precedent (except in obvious cases) as a condition precedent to finding a violation of clearly settled law.

3. Decades ago I predicted in prior editions of CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 ch. 8 (4th ed. 2017)(West), that the Court’s qualified immunity decisions in Harlow v. Fitzgerald, 457 U.S. 800 (1982)(eliminating the subjective part of qualified immunity as a matter of policy) and Mitchell v. Forsyth, 472 U.S. 511 (1985)(making denials of qualified immunity motions for summary judgment immediately appealable) would convert qualified immunity into absolute immunity. The Court’s qualified immunity decisions, especially in the last decade but even before then, have borne out this prediction.

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