Police Use of Deadly Force: Revising Judicial and Statutory Standards to Limit Unjustified Violence.

• Author: Wukitsch, David

INTRODUCTION

Police homicides continue to cause public concern and unrest throughout the country, leading to calls for reform. (1) The lawfulness of police use of lethal force often focuses on the officer's split-second decision to use such force to counter an apparent imminent threat posed by a criminal suspect. (2) The officer must assess in the field whether the suspect's actions create a serious risk of death or bodily harm to the officer or others, or whether the suspect has committed or is about to commit certain statutorily enumerated felonies that by their nature may pose a serious risk to public safety. (3) For example, is the officer justified in deciding to use deadly force to stop a suspect fleeing from the commission of a homicide or in deciding to use deadly force where he believes a felony suspect is armed with a loaded revolver or is pointing a gun or knife at the officer or another person?

Legal challenges to police use of deadly force arise most often in two legal contexts where the officer's use of force is alleged to be excessive. First, the issue is raised as one of liability in [section] 1983 actions in federal court seeking damages for the loss of the criminal suspect's life or in a state court action for wrongful death or assault and battery seeking monetary relief. (4) Second, deadly force issues arise as a defense to the officer's potential criminal liability in a state prosecution for homicide. (5) In both contexts, the life-preservation interest of the criminal suspect (who may have not even been charged with a crime) conflicts with the societal interests in public safety and enforcement of the criminal law.

To help reduce unwarranted instances of lethal force by law enforcement, reform should be examined on two fronts. First, as explained below, the Fourth Amendment jurisprudence operative in 1983 actions needs to be more evenly balanced to give greater recognition to the criminal suspect's interest in preserving his own life. Second, the New York State statute, New York Penal Law Section 35.30, (6) should be amended to limit the use of deadly force to situations where the criminal suspect's imminent threat poses a risk of death or serious bodily injury to the officer or a third party. The Supreme Court case, Kisela v. Hughes, illustrates some of the inadequacy of the current Fourth Amendment standards governing police use of deadly force.

1. KISELA V. HUGHES

   On May 21, 2010, Tucson police officers Andrew Kisela and Officer-in-Training Alex Garcia responded to a welfare check concerning "a woman chopping away at a tree with a knife." (7) A neighbor of the woman had called 911 to make the report. (8) When Kisela and Garcia arrived at the scene, they encountered the 911 caller who advised them that the woman with a knife, Amy Hughes, had been acting "erratically" with the knife. (9) Moments later, another police officer Lindsay Kunz pulled up to the scene on her bicycle. (10) At around the same time, Officer Garcia saw a woman "later identified as Sharon Chadwick, standing next to a car in the driveway of a nearby house." (11) A chain link fence separated the officers from Chadwick. (12)

   At that point, the officers observed Hughes, who matched a description of the woman with the knife, emerge from the house holding a kitchen knife. (13) Hughes approached Chadwick with the knife and "stopped no more than six feet from her." (14) The three officers all drew service revolvers and told Hughes to drop the knife at least twice. (15) Chadwick then told the officers to "take it easy," but Hughes refused to acknowledge the presence of the police or to drop the knife. (16) Within roughly a minute from the time he initially saw her and after she refused to drop the knife, Officer Kisela dropped to the ground and shot Hughes four times through the chain link fence. (17)

   In confronting this incident, all three officers believed that Hughes posed a serious threat of imminent bodily harm to Chadwick. (18) Chadwick herself later stated that she did not feel endangered at any time. (19) After the shooting, the officers learned that Hughes had a history of mental illness and that she was upset with Chadwick over a twenty-dollar debt. (20) Chadwick, who was also Hughes's roommate, stated that Hughes occasionally had episodes where she acted inappropriately, but she was only attempting to garner attention. (21) None of this background was known by the officers at the time of the shooting. (22)

   "Hughes sued Kisela under Rev. Stat. [section] 1979, 42 U.S.C. [section] 1983, alleging that Kisela had used excessive force in violation of the Fourth Amendment. The District Court granted summary judgment to Kisela, but the Court of Appeals for the Ninth Circuit reversed." (23) The Ninth Circuit held the evidence, viewed in the light most favorable to Hughes, was sufficient to establish that Kisela violated the Fourth Amendment. (24) The court found, because of circuit precedent it viewed as directly analogous, that the violation was clearly established and the constitutional violation obvious. (25) The Ninth Circuit relied on three of its own decisions (26) to establish that Kisela had used excessive force. (27) Kisela filed a petition for a rehearing en banc, which was denied over the dissent of seven judges. (28) The Supreme Court granted Kisela's petition for certiorari. (29)

   In a per curiam opinion, the Supreme Court reversed the judgment of the Ninth Circuit and remanded the case for further proceedings. (30) Reiterating its holdings in Tennessee v. Garner (31) and Graham v. Connor, (32) the majority indicated that police-use-of-force cases are subject to a Fourth Amendment test of reasonableness focusing on the severity of the crime, the immediate threat posed by the suspect to the officer and others, and whether the suspect is fleeing or attempting to evade arrest, all judged from the standpoint of an officer on the scene. (33) Recognizing that officers on the scene are called upon to make split second judgments, the reasonableness test does not employ 20/20 hindsight. (34) Having explained the Fourth Amendment test, the Court refused to decide the case on grounds of reasonableness because, in the majority's view on the facts presented, Kisela was entitled to qualified immunity from suit. (35)

   Qualified immunity shields an officer from liability for civil damages unless he violates a statutory or constitutional right that has been clearly established when the challenged conduct took place. (36) A sound legal principle must have a clearly established foundation in existing precedent. (37) The majority reasoned that, even though the Court's precedent does not require a case directly on point to qualify as "clearly established," the existing precedent "must have placed the statutory or constitutional question beyond debate." (38) In practical terms, the Court reiterated, qualified "immunity protects all but the plainly incompetent or those who knowingly violate the law." (39) Recognizing that officers in the field may have difficulty determining how existing precedent applies to the actual circumstances arising in a specific case, the officer using excessive force is entitled to qualified immunity unless existing precedent "squarely governs" the specific facts in dispute. (40) Applying this test, the Court found that the Ninth Circuit misapplied the doctrine of qualified immunity because its own precedent did not clearly define conduct that an officer in Kisela's position would have known that he was violating. (41)

   On the facts presented, Kisela was confronted with a woman wielding a knife close to Chadwick. (42) Kisela had mere seconds to assess the danger to Chadwick, and Hughes did not heed his commands to drop the knife. (43) According to the majority, this scenario was "far from [the] obvious case in which any competent officer would have known that shooting Hughes to protect Chadwick would violate the Fourth Amendment." (44) The majority found that the Ninth Circuit erred in concluding that its own precedent constituted clearly-established law under these circumstances, (45) instead finding that the most analogous circuit precedent actually favored Kisela. (46) To contrast, not one of the three decisions relied upon by the Ninth Circuit when fairly read, supports denying Kisela the benefit of the qualified immunity doctrine. In each of the three decisions, the Supreme Court distinguished the precedent relied on by the Ninth Circuit as inapplicable to the present case. (47) For these reasons, the majority concluded that the Ninth Circuit had erred, and its judgment was reversed. (48)

   Justice Sotomayor dissented, and Justice Ginsburg joined the dissenting opinion. (49) She took an entirely different view of the facts, noting at the outset that, on an appeal from a summary judgment, the facts must be viewed in the light most favorable to Hughes as the non-moving party. (50) When so viewed, Justice Sotomayor deemed Kisela's use of deadly force to be unreasonable because Hughes posed no imminent threat to others inasmuch as she remained calm and held the knife away from Chadwick. (51) Hughes was a safe distance away from the officers and she had not committed an illegal act or threatened Chadwick or anyone else with the knife. (52)

   The dissent conducted a two-part legal analysis. First, the dissent addressed whether there was a violation of a constitutional right. (53) Under the Fourth Amendment, a claim may only be defeated when the officers' actions are "'objectively reasonable' in light of the facts and circumstances confronting them." (54) This inquiry involves an analysis of the severity of the crime, "whether the suspect poses an immediate threat to the safety of the officers or othersQ" and whether the suspect is fleeing or attempting to evade arrest. (55) Applying these factors, the dissent found a Fourth Amendment violation because Hughes committed no crime, the officers had not...