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Tuesday, July 17, 2018

Reprinted with permission from Creators.

“Why’d you shoot me?” Amy Hughes, screaming and bleeding, asked Officer Andrew Kisela after he fired four rounds at her through a chain link fence. Thanks to the Supreme Court, a jury will not get a chance to consider that question.

In a case that illustrates how hard it is to hold police officers responsible for using excessive force, the Court on Monday ruled that Kisela is protected by “qualified immunity” from civil liability for the injuries he inflicted on Hughes in May 2010. The decision, as Justice Sonia Sotomayor observed in a dissent joined by Justice Ruth Bader Ginsburg, “tells officers that they can shoot first and think later.”

Kisela, an officer with the University of Arizona Police Department in Tucson, was responding to a “check welfare” call about a woman who was hacking at a tree with a kitchen knife. Arriving at the home that Hughes shared with Sharon Chadwick, he saw Hughes emerge from the house with a kitchen knife in her hand and approach Chadwick, stopping about six feet from her.

Hughes, who talked to Chadwick but did not seem angry, was holding the knife at her side, with the blade pointing away from her housemate. Chadwick, who later described Hughes as “composed and content,” said she never felt she was in any danger.

Kisela and the two other officers with him nevertheless drew their guns and ordered Hughes to drop the knife. It is not clear whether she heard the commands.

Chadwick said it seemed to her that Hughes did not understand what was happening, an impression shared by Kisela’s colleagues. The cops, although in uniform, never verbally identified themselves as police officers, and the whole encounter was over within a minute.

Kisela, who later said he was trying to protect Chadwick, opened fire immediately and without warning, hitting Hughes with all four bullets. She survived but easily could have been killed.

Neither of the two other officers at the scene resorted to deadly force. Kisela could have used his Taser instead of his gun. He could have repeated the command to drop the knife. He could have at least warned Hughes that if she did not comply he would fire.

At the moment she was shot, Hughes had committed no crime and was not menacing anyone. After Hughes sued Kisela under a federal law that allows people to recover damages for violations of their constitutional rights, the U.S. Court of Appeals for the 9th Circuit concluded that “a rational jury…could find that she had a constitutional right to walk down her driveway holding a knife without being shot.”

Kisela appealed to the Supreme Court, which did not address the question of whether he had used excessive force. Even if he did, seven justices agreed, Kisela cannot be held liable because the 9th Circuit’s precedents, as of May 2010, had not clearly established that shooting Hughes violated her rights.

While none of the 9th Circuit’s cases addressing excessive force involved circumstances exactly like these, that does not mean Kisela had no way of knowing that what he did was unlawful. “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,” Sotomayor writes, “he was not entitled to qualified immunity.”

The Supreme Court’s conclusion to the contrary is part of a pattern. In a recent California Law Review article, University of Chicago law professor William Baude notes that the Court almost always sides with government officials in qualified immunity cases, which makes judges less likely to let people sue them.

As illustrated by criminal cases in which juries let cops off the hook for outrageous conduct, giving victims of excessive force their day in court hardly guarantees justice. But preventing juries from hearing cases like these guarantees injustice.

Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @jacobsullum. To find out more about Jacob Sullum and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at www.creators.com.