Supreme Court Says Shooting A Non-Threatening Person Without Warning Is Just Good Police Work
from the boys-in-blue-need-our-help-more-than-ever-it-would-seem dept
The Supreme Court -- without additional input -- has decided it's still OK for officers to kill people as long as they can express some sort of fear in a courtroom setting.
In Kisela v. Hughes, the justices overturned – without briefing or oral argument – the ruling of the U.S. Court of Appeals for the 9th Circuit in favor of Amy Hughes, whom police corporal Andrew Kisela shot and wounded in 2010. Kisela had responded to reports that Hughes was in the street with a large knife “screaming and crying very loud”; when he arrived, he saw Hughes approaching another woman. After Hughes ignored orders to drop the knife and continued to move toward the woman, Kisela fired at Hughes. The shots struck Hughes several times, although her injuries were not life-threatening.
Hughes filed a lawsuit against Kisela, alleging that the shooting violated her federal civil rights. A federal district judge ruled for Kisela, but the 9th Circuit reversed. Today, in an unsigned opinion, the Supreme Court reversed the 9th Circuit’s ruling. The opinion explained that, even if Kisela had violated the Fourth Amendment by using deadly force against Hughes (which the ruling described as “a proposition that is not at all evident”), Kisela still could not be sued because any rights that he might have violated were not clearly established – a key factor in whether government officials enjoy immunity from lawsuits.
The Ninth Circuit's opinion stripped the officer of his immunity. This decision reestablishes it. And it reminds cops de-escalation rarely needs to be considered as a tactic because the courts will have their back in almost every case. While the presence of a knife suggests some sort of objective danger, the person experiencing the threat was Hughes' roommate, not the cops on the other side of the fence. (And she testified she did not feel threatened.) It took only 60 seconds for one officer to resort to deadly force, based solely on the fact that Hughes refused to immediately drop the knife.
The presence of a weapon changes the math a little, but it shouldn't change it so much as to dismiss this appeal with an unsigned opinion and zero input from the engaged parties. The dissenting opinion [PDF], written by Justice Sotomayor (and joined by Justice Ginsburg) points out the "threatening" situation used to justify the shooting wasn't all that threatening -- not even for other officers on the scene.
Officer Andrew Kisela shot Amy Hughes while she was speaking with her roommate, Sharon Chadwick, outside of their home. The record, properly construed at this stage, shows that at the time of the shooting: Hughes stood stationary about six feet away from Chadwick, appeared “composed and content,” Appellant’s Excerpts of Record 109 (Record), and held a kitchen knife down at her side with the blade facing away from Chadwick. 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 Chadwick or anyone else. Faced with these facts, the two other responding officers held their fire, and one testified that he “wanted to continue trying verbal command[s] and see if that would work.” Id., at 120. But not Kisela. He thought it necessary to use deadly force, and so, without giving a warning that he would open fire, he shot Hughes four times, leaving her seriously injured.
[...]
Kisela did not wait for Hughes to register, much less respond to, the officers’ rushed commands. Instead, Kisela immediately and unilaterally escalated the situation. Without giving any advance warning that he would shoot, and without attempting less dangerous methods to deescalate the situation, he dropped to the ground and shot four times at Hughes (who was stationary) through a chainlink fence.
If this truly was a "reasonable" use of force under the circumstances, you'd think Hughes would be dead, shot by multiple officers multiple times. But only one officer found the situation dire enough to shoot Hughes without warning. By refusing to weigh the arguments (and by choosing to rebuke the Ninth Circuit Court of Appeals for stripping away the officer's immunity), the Supreme Court has issued another blank check to be cashed at will by officers all over the nation. When events are unfolding quickly, the proper answer is to escalate the situation, rather than try to slow everything down and see if everyone -- not just the cops -- can make it out alive.
Sotomayor then goes on to point out this isn't just a qualified immunity problem: it's a Supreme Court problem.
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.” [...] 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.
This decision won't make the nation's policing any better. It will just make everything's that's already bad even worse.
The majority 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.
This is what it boils down to: a free pass on deadly force. Unless the courts can push a case directly on point in front of the justices, officers will get a pass just for claiming they feared… something. As Scott Greenfield points out, the reason no discussion was needed prior to the SCOTUS decision is the court already knew what it thought about reasonable uses of force, and this one was reasonable enough to dispense with the opening pleasantries.
Whether it’s “palpably unreasonable,” however, ignores the Supreme Court’s holding. It is not so glaringly wrong to the majority of the Court, to the majority of Americans and to the majority of police officers. In baseball, a tie goes to the runner. In police shootings, a tie goes to the cop. If there is any question of threat, the law is prepared to give the cop the benefit of the doubt. And whether there is any question of threat is a decision only cops can make. We don’t get a vote.
This type of city hall can't be fought. It can only be adjusted to. Unreasonable deployments of force will still be considered "objectively reasonable" in a great majority of decisions. Violations of rights won't be treated as violations unless they're so flagrant even deferential courts can't ignore them. Every decision like this is just another stack of paper to add to citable case law when defending officers who've killed people who really didn't need killing.
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Filed Under: 9th circuit, civil rights, kisela v. hughes, police, reasonable force, supreme court
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Rule 10.
Rule 10. Considerations Governing Review on Writ of Certiorari
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Routine is not rare [was Re: ]
From Justice Sotomayor's dissent (quoted in the article above)—
(Emphasis added.)
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Re:
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Once again, history rhymes.
[We indict the King of Great Britain] For protecting [English soldiers], by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States
-- Thomas Jefferson, among the indictments in the Declaration of Independence.
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Re: Y
What are all the possible reasons for such behavior ?
IMO government judges have strong incentives to generally side with the police in the vast American bureaucratic justice system.
Judges are simply lawyers with a stable government paycheck; they have no actual physical power over anybody... they are totally dependent upon police to enforce their judicial opinions.
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If a coward in blue can decide to apply lethal force without warning and despite the fact that other officers who apparently aren't trigger happy goons are trying to de-escalate the situation and have the US Supreme Court say that that sort of action is completely justifiable, then yeah, anything up to and including attempted murder can easily be brushed aside as justified and acceptable.
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'Supreme Court'? A supreme court in a 100% corrupt, totalitarian, police-state government? What a joke! The only action(s) that people who live under the influence, oppression, impoverishing, and murdering of such a government should be in armed war to totally eradicate this government by guerilla warfare. To not be engaged in this activity is electing suicide by government. However, it's difficult to expect 95-97% of the citizens to do what's needed to save themselves when they are: braindead, brainwashed, tyranny-worshipping, have no principles, integrity, weak, care-about-nothing-of-value, classless, clueless, stand-for-nothing, totally worthless pieces of humanity. Fortunaytely history has proven many times that a determined minority can defeat the most powerful enemy, and have. It only takes 3-5% of the people to forcibly eradicate their oppressors. This act is over 200 years past due. When are the determined few good/deceht/people of value ioing to step-up?
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Re:
The usual results of guerrilla warfare are either the strengthening of a tyranny, or its replacement by another tyranny. Indeed most violent revolutions just exchange one set of tyrants for another. Revolutions gives a history of many revolutions, and most of the outcomes are poor for the citizens.
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Re: Re:
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Revolutions
While I get that, I wonder what the alternative is when political reform is either too slow (taking centuries) or impossible because the aristocracy is unsympathetic?
It may just be part of the condition of human society that the wealthy are glad to see those beneath them suffer, and even resent them for their mutual dependence. Is the human species doomed to live in perpetual injustice and misery?
Our superhero fiction has a long history of nihilists deciding to destroy the world (or at least make it inhabitable for humanity). Maybe these madmen actually have a valid point?
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Re: Revolutions
We've got that now, Uriel. Wasn't Donald Trump supposed to ride in on a white horse and save us from the Metropolitan Elite, or something? He didn't because we're stupid when it comes to choosing heroes.
Meanwhile, we still have the other, harder, roll-up-your-sleeves-and-keep-at-it option, which is to work through the democratic process. This means campaigning and recruiting allies to help us deal with injustice one issue at a time. I know, campaigning is hard and campaign fatigue is a thing. But have you noticed that the people who keep at it tend to get what they want? Men can marry men and women can marry women now. Twenty years ago that was unthinkable. What happened? Sustained campaigning.
As I've said any number of times, pressure works. The trouble with the "pressure works" approach is that we need to keep the pressure on until we get the change we want. One vote might not swing an election but imagined getting a couple of thousand people in each district to vote along with you. It can and does happen.
The human species is only doomed to live in perpetual injustice and misery for as long as it wants to. You have to decide your way out of it.
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With friends like these...
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.
... or as the majority would describe it were they honest enough to admit it, 'That's a feature, not a bug'.
It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.
Something which, if those who profess to care so very much about police stopped to think about, they'd realize is not good for the public or the police.
If police know that they can do effectively anything and the courts will have their back then the worst of the worst will gradually fill the ranks, the kind that will bounce someone's head off the pavement/their fists for laughs, and once the public is genuinely afraid enough they are much more likely to start shooting back.
It's similar to the reason that one of the anti-torture arguments I put forth is that engaging in and supporting the practice puts US soldiers and civilians at greater risk, because if someone thinks that they'll be treated humanely and fairly if they surrender, they are more likely to do so. If they fear that they will be tortured and/or killed if they surrender on the other hand they are much less likely to do so, and more likely to fight to the death as at least that's relatively quick.
Along that line, if someone feels they have a very real, justified fear that surrendering to police(or even just interacting with them at the wrong time) will end up in a trip to the hospital or the morgue they are much less likely to go quietly, and much more likely to result in violence in what they'll see as self-defense, which, barring those twisted individuals who want an excuse to gun someone down, is bad for both sides, public and police.
You can only cow someone into submission with fear for so long before it backfires, badly, and while the USCS and other courts may think that they are protecting police with rulings like this, they are in fact simply making it worse, someone I dearly wish they'd realize for the sake of both public and police.
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Re: With friends like these...
I agree that the present environment as a result of other cases is not a good one. But we can't allow that to influence an individual ruling, just because it happens to give legal ammunition to the other side. That would be implying that the one side is always wrong.
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Re: Re: With friends like these...
That would be implying that the one side is always wrong.
That's exactly what's happening here and in general though. As pointed out by the dissent the default assumption is that the police are always right. If a scenario is 'unclear' for whatever reason, or there might possibly be an acceptable justification for what would otherwise be a crime were anyone else to do it, the benefit of the doubt will almost always be given to the one with the badge, not the one without.
Placing police on an equal footing(if not setting the bar higher for them as far as acceptable behavior) to the public is not assuming one side is always wrong, it's resetting that very assumption so that one side isn't assumed to be always right, and the other always wrong as a result.
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Non established rights
Which right was not clearly established? The right to live? The cop tried, and failed, to kill her.
Is the Constitution not clear enough for (at least 7) the Justices? The Constitution is a prohibition of things the Government cannot do. Does the right to life and liberty really need to be re-established each and every time?
Seems pretty clear to me, but then I am not a lawyer. Judge, jury and attempted executioner all rolled into the cop's job description, or is it that cop's just have greater rights than everybody else?
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Re: Non established rights
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Re: Re: Non established rights
Also the armed forces are prohibited from operating on American soil.
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The armed forces are prohibited from operating [in US territory]
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"The armed forces are prohibited from operating [in the US]"
That can't be right. Doing so in civilian parts would be Martial Law which is expensive and super inconvenient, so we don't do it very often, but we do sometimes deploy the National Guard. Heck, we did so in Ferguson during the unrests, and they didn't do much but they deployed.
But Trump is looking to deploy the National Guard on the southern border of the US. So there has to be provisions for it.
Police are a para-military force, but they're not a military force, rather they're supposed to be a civilian force closely tied to the community, as per the Peelian Principles still taught to the police as late as the aughts. That they've turned into their own caste and now act as if civilians are an enemy is a symptom of institutional dysfunction.
As is, incidentally, the FBI reframing itself as no longer an law enforcement agency but a national security agency.
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Re: "The armed forces are prohibited from operating [in the US]"
"Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both."
https://www.law.cornell.edu/uscode/text/18/1385
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The Posse Comitatus Act of 1878
So as per general military actions before 1973, the military can be deployed in the States, but only under consent of Congress.
And like the problems with the War Powers Act, they'll find if they challenge the President that he is not subject to courts without impeachment, so he can essentially do what he wants. (Previous presidents have acted consistent with the War Powers Act so as not to rock that particular boat. But Trump will be Trump.)
The Posse Comitatus act does not apply to the Navy or National Guard (though the US Navy is limited by its own regulations). This would explain why the USMC and National Guard have been deployed to put down unrest. I think at some point the Corps was also deployed to operate the post office, but I can't find the exact era and circumstances.
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Re: "The armed forces are prohibited from operating [in the US]"
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Re: Re: Non established rights
No, they aren't.
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Re: Re: Re: Non established rights
Militsiya
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Re: Re: Re: Re: Non established rights
Are you seriously suggesting that the USofA start using Russian definitions of words? Well, given the current state of affairs, maybe we should consider....
I have read all of the Arkady Renko novels several times, even last month, but don't give into that definition of Militia...not until Putin is elected President of the United States...in fact.
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Re: Re: Re: Re: Re: Non established rights
My high school Russian language teacher used to tell us that Russian was a beautiful language and extremely subtle… Perhaps my response to your comment was a bit too subtle.
So, let's get the argument in this here thread here straight, in all its glory…
In short, consistently with the Fifth Amendment, a National Guardsman may occasionally be court-martialed for criminally violating the Articles of War — without initial indictment by a grand jury.
What the hell does this have to do with Amy Hughes' § 1983 civil lawsuit against University of Arizona Police Department Corporal Andrew Kisela?
And do we really need to get into the Posse Comitatus Act? Or can we all just let that one slide?
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Re: Re: Re: Non established rights
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Militia vs. National Guard
The National Guard is still a state run military, rather than an organization of volunteers from the public. It can't be a militia.
National Guard get paid and can go AWOL. They can also be tried for treason for failure to follow orders from the governor, even if those orders are to assault their own family.
A militia cannot be so deployed.
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With Apologies
Under modern precedent, you may, in defense of somebody else's life, take any action you would take in defense of your own life.
QED: The officer shot a person who seemed to present a danger to the life and limb of another person. What they did in this situation would have been legal for anybody to do.
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Re: With Apologies
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Re: Re: With Apologies
Burst into any kitchen and shoot the cooks.
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Re: Re: With Apologies
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Re: Re: With Apologies
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Re: Re: Re: With Apologies
Reportedly throughout US history.
What? You thought the Orange one was the first?
(Inserlaughtrack)
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Re: With Apologies
By that definition, an armed citizen would have been within his rights to shoot the cop, since that cop presented a clear danger to the woman's life.
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Not my usual stance, in this case.
If an officer orders you to drop a weapon, gives you a chance to do so and you don't, all bets are off. Even if you are not brandishing said weapon.
Having said that, it is a valid point that this decision will embolden some officers to act as unprofessionally as this one did. Could he have handled this better? Most certainly. But the issue before the court, was not his job performance, but rather criminal liability. I don't see any, if the weapon holder was in a mental state to comply. The very arguments given by Mr. Cushing, indicate this was indeed the situation.
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Re: Not my usual stance, in this case.
Amendment VII
Jury of nine black-robed politicians.
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Re: Not my usual stance, in this case.
Also, the lack of tactical command often exhibited by the US police probably also made matters worse, how many of the three officer there were screaming commands at the suspect.
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Re: Re: Not my usual stance, in this case.
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Re: Re: Re: Not my usual stance, in this case.
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Re: Re: Not my usual stance, in this case.
Yes, there are a lot of facts about this case that are not evident in this posting, hence my original disclaimer pointing that out.
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Re: Not my usual stance, in this case.
The issue before the court was whether a “Civil action for deprivation of rights” should proceed to trial.
From the court's per curiam opinion, on p.3—
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Re: Re: Not my usual stance, in this case.
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Re: Re: Re: Not my usual stance, in this case.
It could.
But whether it hypothetically could or not, Cushing's article above, quoting the SCOTUSblog summary, very clearly relates (beginning of second blockquoted paragraph above)—
That alone should indicate the civil nature of the action to you.
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Re: Re: Re: Re: Not my usual stance, in this case.
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Shoot first, issue commands... eh, eventually
He thought it necessary to use deadly force, and so, without giving a warning that he would open fire, he shot Hughes four times, leaving her seriously injured.
[...]
Kisela did not wait for Hughes to register, much less respond to, the officers’ rushed commands. Instead, Kisela immediately and unilaterally escalated the situation.
There was no warning, there was no 'waiting to see if they would comply', there was only draw and fire.
The officer in question did not attempt to execute the victim for threatening someone with a knife, they didn't attempt to execute the victim for refusing to drop the knife, they attempted to execute them simply for having the knife, and the idea that simply having a weapon on you being grounds for summary execution(attempted or not) is not an idea I'm willing to buy.
If nothing else the 'turnabout is fair play' test should shoot down(pun unintended) that idea, as police are armed as part of their standard gear, and I somehow suspect that 'Your honor, the officer had a gun, and despite the fact that they weren't actually pointing it at me or anyone else I feared for my life and shot them' isn't something most/any police or judges would find acceptable.
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Re: Shoot first, issue commands... eh, eventually
The fact that Kisela did not repeat a command already given, is something the court would be willing to overlook.
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Re: Re: Shoot first, issue commands... eh, eventually
The fact that Kisela did not repeat a command already given, is something the court would be willing to overlook.
Willing to and did.
Even assuming that scenario is correct however, so what? Two other officers who may or may not have ordered the person to put the knife down apparently saw no threat in need of addressing from a refusal that may or may not have happened, whereas the third was more than happy to go straight to attempted murder with no warning whatsoever.
Even under your hypothetical, 'They didn't immediately comply with my order' is not valid grounds for attempted murder, though disgustingly enough the USSC appears to think otherwise.
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Standard of review on summary judgment
The Ninth Circuit's opinion in this case, now reversed, contains a statement of the standard of review on summary judgment.
Huges v Kisela (9th Cir. amended June 27, 2017)—
(Citations omitted; hyperlinked definition added.)
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So the cop shot someone who had a knife and was approaching another woman?
Seems like a good shoot to me.
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Re:
From the court report
Where is the movement you refer to?
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once the children of america give away all their rights of self protection there will be no reason to fear of being killed by police because we the people will just be sheeple
and as you know sheeple are never killed discriminatory
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Was a Taser on site? If so, why wasn't it used? Would seem a perfect use case if one was available.
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Re:
Hughes was stationary, and NOT threatening with the fe.
The second paragraph looks like there was the usual confusing lack of tactical command by the police at the scene. Almost every other police force in the western world would have decided which officer was to issue commands to a suspect, so as to avoid any confusion due to several shouted commands being given at the same time. Indeed the lack of tactical command leads to a confusing and dangerous situation for suspects as they do not who to obey if the commands are conflicting, like "drop the knife" and "back away".
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Re: Re:
“ FREEZE ! ”
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Taser [was Re: ]
From the now reversed opinion below in the Ninth Circuit. Judge Sessions (sitting by designation)—
The immediate issue is whether the case should proceed to a jury. Thus, at this procedural stage, any factual dispute should be deemed to favor Hughes' case.
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Sad
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What is Good for the Goose is Good for the Gander
The Supreme Court -- without additional input -- has decided it's still OK for officers to kill people as long as they can express some sort of fear in a courtroom setting.
What happens when the people police officers are supposedly protecting/serving begin to fear for their lives when police officers are present?
The italicized/bold text below has been excerpted from Supreme Court Justice Louis Brandeis' dissenting opinion in Olmstead v. US :
Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means -- to declare that the government may commit crimes in order to secure the conviction of a private criminal -- would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face. Dissenting, Olmstead v. United States, 277 U.S. 438 (1928).
https://en.wikiquote.org/wiki/Louis_Brandeis
https://www.law.cornell.edu/supremecourt/text/2 77/438#writing-USSC_CR_0277_0438_ZD
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In a government of laws
In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously.
It is by the the language of the legal department in such phrases as good faith exception and prosecutorial discretion. The very language of law and legal policies that are accepted in the US articulate the tools by which our government of laws has been undermined.
Ours is a nation of lords. The civilian peoples of the US bow to the police, to state officials and to corporate interests, and fail to do so only at their own peril.
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Incomplete sentences
It is by the the language of the legal department in such phrases as good faith exception and prosecutorial discretion...
...that our nation of laws is shown to be only a facade. Ours is a nation of lords, some of whom are above law, and some of whom gain access to civil rights in regards to due process. For most of us who cannot afford a protracted legal battle, we are beneath law.
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Re: Incomplete sentences
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