Supreme Court Scolds: We Meant What We Said About Qualified Immunity Doctrine

Kisela v. Hughes, 138 S.Ct. 1148 (2018)

Officers responded to a report that Amy Hughes was acting erratically, “screaming and crying very loud,” and hacking at a tree with a large butcher knife. Three officers responded and all drew their weapons upon seeing Hughes come out of a house, holding the knife. Hughes stepped toward another woman and then stopped just about six feet from her. One officer commanded Hughes to drop the knife; she did not comply and said nothing. The other woman, later identified as Hughes’ roommate, told officers to “take it easy.” One of the officers perceived that Hughes posed an imminent threat to the roommate and fired four rounds, striking Hughes.

The officers subsequently discovered that Hughes had threatened to kill her roommate’s dog over a $20 debt. The roommate told the officers that Hughes was mentally ill and occasionally acted out. Hughes survived her injuries and sued the officer who shot her.

The 9th Circuit Court of Appeals held the officer was not entitled to qualified immunity. In a powerful and fiery rebuke of the court of appeals, the Supreme Court summarily reversed without even requiring written briefs or oral argument. The Supreme Court issued an unsigned opinion, writing that it had “repeatedly told courts—and the 9th Circuit in particular—not to define clearly established law at a high level of generality.” That’s the court equivalent of “if we’ve told you once, we’ve told you a thousand times … what is it that you don’t understand?” The Court once again stated that “use of excessive force is an area of law ‘in which the result depends very much on the facts of each case,’ and thus police officers are entitled to qualified immunity unless existing precedent ‘squarely governs’ the specific facts at issue.” The Court didn’t address whether shooting Hughes violated the Constitution; rather, the Court stated there was no clear precedent giving the officer notice that shooting to protect the roommate from a potential knife attack could be unconstitutionally excessive force.

Justice Sotomayor scolded her fellow justices for applying “the extraordinary remedy of a summary reversal” in its stinging rebuke of the 9th Circuit. Despite the speed with which a subject can stab or slash someone just six feet away, Justice Sotomayor asserted that “Hughes 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 or anyone else.” She said that the Court’s ruling “tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

Though critics of the decision claim the Supreme Court is expanding the scope of qualified immunity, many court watchers suggest it is doing little more than tacitly or expressly affirming the continued vitality of Graham v. Connor (490 U.S. 386 (1989)), and holding the bright line on the qualified immunity doctrine. In County of Los Angeles v. Mendez (137 S. Ct. 1539 (2017)), the Court halted the 9th Circuit’s development of a “provocation rule,” holding that “once a use of force is deemed reasonable under Graham, it may not be found unreasonable by reference to some separate constitutional violation” (such as officer-created jeopardy or provocation). The Court called the provocation rule “an unwarranted and illogical expansion of Graham.” The Mendez ruling—along with District of Columbia v. Wesby (138 S.Ct. 577 (2018)), White v. Pauly (137 S. Ct. 548 (2017) (per curiam)), Mullenix v. Luna (136 S. Ct. 305 (2015) (per curiam)), and Plumhoff v. Rickard (134 S.Ct. 2012 (2014)) (discussed in past issues of Xiphos)—reaffirms the Court’s plain statement that “when an officer carries out a seizure that is reasonable, taking into account all relevant circumstances, there is no valid excessive force claim.”

Though only Justice Ginsburg joined Justice Sotomayor’s criticism of her colleagues, even the generally conservative Justice Thomas has expressed willingness to continue examining the scope of qualified immunity. Two years ago, in Ziglar v. Abbasi (137 S.Ct. 1843 (2017)), Justice Thomas noted in a concurring opinion that, “in an appropriate case, we should reconsider our qualified immunity jurisprudence.” Justice Thomas was more concerned about the philosophical judicial authority supporting the qualified immunity doctrine. Nonetheless, the left-leaning justices are likely to continue pressing for some retreat from Graham, and they may find unlikely allies in a case squarely challenging the court’s constitutional authority to grant qualified immunity. In fact, University of Chicago Law School professor William Baude wrote an influential scholarly article, “Is Qualified Immunity Unlawful?” challenging the very underpinnings of the qualified immunity doctrine. Stay tuned. Just about every year we see a qualified immunity doctrine decision related to law enforcement coming from the Supreme Court.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over four decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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