AuthorHennessey, Kevin

In recent years, numerous highly publicized police shootings have ignited a vigorous national debate over police use of deadly force. (1) The Fourth Amendment's prohibition against unreasonable seizures bars the police from using deadly force unless officers have probable cause to believe that a suspect poses an imminent threat of serious physical harm to the police or third parties. (2) Section 1983 of the Civil Rights of Act of 1871 allows citizens to sue police officers in federal court for Fourth Amendment violations stemming from unreasonable use of deadly force. (3) However, under the doctrine of qualified immunity, a police officer who unreasonably utilizes deadly force in violation of the Fourth Amendment is immune from [section] 1983 suit so long as the officer's conduct did not violate the plaintiff's "clearly established" constitutional rights of which a reasonable officer should have known. (4) In Kisela. v. Hughes, (5) the Supreme Court was tasked with determining whether an officer who responded to a call about a woman hacking a tree with a kitchen knife and found her standing near her roommate wielding a large knife violated her "clearly established" Fourth Amendment rights by shooting her four times. (6) Over a scathing dissent penned by Justice Sotomayor, seven justices concluded that Officer Kisela was entitled to qualified immunity because there was no binding Ninth Circuit precedent that clearly established shooting the plaintiff under those circumstances violated her right to be free from excessive force. (7)

On May 21, 2010, University of Arizona Police Department Corporal Andrew Kisela and officer-in-training Alex Garcia received a dispatch reporting that a woman was hacking a tree with a knife. (8) Upon arriving on the street where the woman was reportedly attacking the tree, officers were flagged down by the person who called the police to report the incident. (9) The caller provided officers with a description of a woman that was "screaming and acting erratically" while hacking a tree with a knife. (10) Moments later, a third officer arrived on the scene, and the officers "almost immediately" noticed a woman, later identified as Shannon Chadwick ("Chadwick"), standing behind a five-foot chain link fence with a locked gate in a nearby front yard . (11)

Both parties vigorously contested what exactly occurred over the next minute or so. (12) Shortly after officers noticed Chadwick, the police saw a woman who matched the description of the alleged tree hacker, later identified as the plaintiff Amy Hughes ("the plaintiff"), exit the house with a twelve-inch kitchen knife in hand and walk down the driveway towards Chadwick. (13) There was conflicting testimony regarding the plaintiff's demeanor after exiting the house: Chadwick claimed the plaintiff was "calm and. content," while the third officer asserted that she appeared "agitated" and repeatedly told Chadwick to "give it to me." (14) Regardless, the plaintiff moved towards Chadwick and came within five to six feet of her. (15) All three officers drew their guns and ordered the plaintiff to drop the knife at least twice. (16) Chadwick said something to the effect of "Take it easy," but the plaintiff continued to ignore the both Chadwick and the officers. (17) The chain link fence in the front yard blocked Kisela's line of fire, so he dropped to the ground, aimed his service weapon, and shot the plaintiff four times through the fence, non-fatally wounding her. (18)

In 2011, the plaintiff filed a [section] 1983 suit against Corporal Kisela in his individual and official capacity in federal district court in Arizona, alleging that Kisela used excessive force in violation of the Fourth Amendment. (19) The district court judge granted Kisela's renewed motion for summary judgment after concluding that his use of force was objectively reasonable. (20) The judge also opined that even if shooting the plaintiff was unreasonable, Kisela would have been entitled to qualified immunity from suit because his actions did not violate a clearly established constitutional right that a reasonable officer would have known. (21) On appeal, a Ninth Circuit panel reversed the district court's grant of summary judgment, holding that there were legitimate factual disputes regarding both whether Kisela's conduct complied with the Fourth Amendment, and whether he was entitled to qualified immunity. (22) Over a vigorous dissent joined by seven circuit judges, a splintered Ninth Circuit denied Kisela's petition for a rehearing en banc, and Kisela appealed to the Supreme Court. (23) In a sharp rebuke of the Ninth Circuit, the Court issued a per curiam opinion summarily reversing the Court of Appeals' decision because "even assuming a Fourth Amendment violation occurred--a proposition that is not at all evident--on these facts Kisela was at least entitled to qualified immunity." (24)

In the aftermath of the Civil War, Congress enacted the Civil Rights of Act of 1871 to provide a mechanism for enforcing the Fourteenth Amendment against state and local government officials. (25) Section 1 of the Act, now codified as 42 U.S.C. [section] 1983, gave citizens a direct federal cause of action against "persons" who violate constitutional rights while acting under the color of state law. (26) Despite the statute's broad language, from 1871 to 1920, there were only twenty-one [section] 1983 actions filed, and until the 1960s, [section]1983 actions continued to constitute a small fraction of the federal docket. (27) As the number of constitutional rights applicable to state actors through the Fourteenth Amendment expanded, and the Supreme Court's interpretation of [section] 1983 liberalized, the number of [section] 1983 suits skyrocketed. (28) Today there are thousands of [section] 1983 suits filed annually, forming ten percent of the federal civil docket, and the statute serves as an important vehicle for redressing constitutional injuries and holding government actors, like police officers, accountable for illegal conduct. (29)

As the number of federal civil rights lawsuits increased, the Supreme Court applied the doctrine of qualified immunity to shield government officials from [section]1983 liability. (30) Qualified immunity seeks to strike a balance between the public interest in deterring illegal acts committed by government actors and compensating the victims of such conduct, with the competing public interest in ensuring that meritless lawsuits are not allowed to unduly burden government officials by subjecting them to costly, time-consuming litigation. (31) In order to achieve these objectives, the Supreme Court refined qualified immunity analysis in Harlow v. Fitzgerald by refusing to conduct an inquiry into the government actor's subjective good faith and holding that qualified immunity shields government officials performing discretionary functions from suit as long as the official's conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." (32) After Harlow, courts assessing whether an official was entitled to qualified immunity at the summary judgement stage had to conduct a threshold inquiry to determine whether the right that was allegedly violated was "clearly established" by existing law: if the right was not clearly established, the case would be dismissed, because then a reasonable official would not have had reason to know his actions were unlawful. (33) The qualified immunity test requires determining whether a reasonable official would have known his conduct clearly violated the plaintiff's constitutional rights--the doctrine is intended to immunize "all but the plainly incompetent or those who knowingly violate the law" from [section] 1983 suits. (34)

Police use of deadly force is constrained by the reasonableness requirement of the Fourth Amendment. (35) In order to avoid summary judgment, plaintiffs suing police officers for excessive force under [section] 1983 must show both that the officer's actions violated the plaintiff's Fourth Amendment rights and that the right was "clearly established." (36) In determining whether a Fourth Amendment violation occurred, courts must assess the reasonableness of the use of force from the perspective of a reasonable officer on the street, and weigh the gravity of the intrusion into the individual's constitutionally protected interests against the "countervailing government interests" at stake. (37) For an officer's conduct to violate a "clearly established" Fourth Amendment right, the conduct must violate a right that is specifically defined by existing precedent to the extent that a "reasonable offi[cer] in the defendant's shoes would have understood that he was violating" the right. (38) While the Ninth Circuit Court of Appeals has evaluated police use of deadly force in a variety of contexts, the Supreme Court has explicitly warned "the Ninth Circuit in particular not to define clearly established [Fourth Amendment] law at a high level of generality" because doing so can result in officers being improperly denied the protections of qualified immunity. (39) Thus, determining whether an officer may invoke the shield of qualified immunity is an inherently fact-specific inquiry that requires comparing the facts of the case to existing precedent and ascertaining whether the caselaw would have made an objectively reasonable officer in the defendant's position aware that his conduct violated the plaintiff's Fourth Amendment rights. (40) The rational underlying the "clearly defined" requirement is that individual officers and police departments should not be subjected to costly litigation and liability for conduct without fair notice that the conduct is illegal. (41)

In Kisela v. Hughes, the Supreme Court declined to explore whether Corporal Kisela shooting the plaintiff constituted excessive force in violation of the Fourth...

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