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The Supreme Court's Continuing Immunity Crusade

A few thoughts on today's summary reversal in Kisela v. Hughes.

Today's "dog bites man" story from the Supreme Court is a summary reversal in Kisela v. Hughes, the latest reversal of a Ninth Circuit opinion that had denied qualified immunity to a police officer. An Arizona police officer shot a woman who was holding a kitchen knife because he (seemingly mistakenly) believed that she was a threat to her roommate, who was standing about six feet away. In a per curiam opinion, the Supreme Court held that the police officer could not be held liable for the unreasonable use of deadly force, because it was "far from an obvious case" in light of the urgency of the situation and the woman's strange behavior. By my count, this is the fifth such summary reversal in the past four years. (It also means that a list of qualified immunity cases in an article I published in February is already out of date.)

However, I was somewhat heartened to see a dissent by two Justices (Sotomayor and Ginsburg). The dissent argued that the majority had "misapprehend[ed] the facts and misapplie[d] the law," and that a jury could have found that the use of deadly force was clearly unreasonable. The dissent also went on to make a second point, however, one that I think is quite important to emphasize:

For the foregoing reasons, it is clear to me that the Court of Appeals got it right. But even if that result were not so clear, I cannot agree with the majority's apparent view that the decision below was so manifestly incorrect as to warrant "the extraordinary remedy of a summary reversal." Major League Baseball Players Assn. v. Garvey, 532 U. S. 504, 512–513 (2001) (Stevens, J., dissenting). "A summary reversal is a rare disposition, usually reserved by this Court for situations in which the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error." Schweiker v. Hansen, 450 U. S. 785, 791 (1981) (Marshall, J., dissenting); Office of Personnel Management v. Richmond, 496 U. S. 414, 422 (1990) ("Summary reversals of courts of appeals are unusual under any circumstances"). This is not such a case. The relevant facts are hotly disputed, and the qualified immunity question here is, at the very best, a close call. Rather than letting this case go to a jury, the Court decides to intervene prematurely, purporting to correct an error that is not at all clear.

This unwarranted summary reversal is symptomatic of "a disturbing trend regarding the use of this Court's resources" in qualified-immunity cases. Salazar-Limon v. Houston, 581 U. S. ___, ___ (2017) (SOTOMAYOR, J., dissenting from denial of certiorari) (slip op., at 8). 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." Id., at ___–___ (slip op., at 8–9); see also Baude, Is Qualified Immunity Unlawful? 106 Cal. L. Rev. 45, 82 (2018) ("[N]early all of the Supreme Court's qualified immunity cases come out the same way—by finding immunity for the officials"); Reinhardt, The Demise of Habeas Corpus and the Rise of Qualified Immunity: The Court's Ever Increasing Limitations on the Development and Enforcement of Constitutional Rights and Some Particularly Unfortunate Consequences, 113 Mich. L. Rev. 1219, 1244–1250 (2015). 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.

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.

It is important to remember that the Supreme Court hears only a small and dwindling number of cases -- less than one in 100 of the cases that it is asked to hear will ever get a determination on the merits. Most of those cases, according to the Court's rules and practices, will be cases where lower courts are divided on the law or an important legal issue is otherwise unsettled. These summary reversals are a notable, and sometimes explicit, exception. The Court takes a comparatively large number of factbound cases that present no lasting legal issue other than whether the Ninth Circuit got it wrong again.

I have criticized the Court's qualified immunity doctrine at length, but I do understand that one might disagree, especially if one believes in evolving judge-made law (see this draft response from Hillel Levin and Mike Wells) or might think the issue so settled by stare decisis that my critiques are merely academic. Still, it is worth noting that the Court treats qualified immunity not just as ordinary settled law, but as an area of law so important that it is worth deciding a series of factbound cases that would never earn the Court's attention if they involved a different legal issue. Moreover, the Court seems uninterested or unable to find such cases where a lower court wrongly denied relief to a person whose constitutional rights were violated.

I remain unconvinced that this special legal treatment has a good legal basis.

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  • Gasman||

    The immunity / no-immunity threshold seems to largely determine whether those who suffer as a result of law enforcement encounters can recover for their losses.
    Why not a simple no-fault payment from the police departments and those who nominally endorse and benefit from policing, the public, compensate those who wind up with losses through police encounters. The only ones not compensated would be those convicted by a judge or jury, but not plea deals (already too much power in pleading out cases for the DA.)

    That way more people who have their door busted in, dog shot, or need of medical care for laceration repair incidental to arrest get fixed. And the path to civil suit remains for those with more egregious cases.

  • Michael Ejercito||

    We should impose strict liability, the way strict liability is imposed on business owners.

  • DKWalser||

    I disagree. For some types of police work, I think strict liability (at least for the city) should apply. An example would be a no-knock raid to enforce a search warrant. If they bust through the wrong door because they have the wrong address, that should be 100% on them. Anything bad that happens, including their use of deadly force on someone who reasonably fears that his home is being invaded by an armed gang, should be on them with no immunity.

    But, this case was something entirely different. The three officers were responding to a 911 call. Someone saw a woman hacking at a tree with a large knife and otherwise behaving erratically. When the officers arrived, the 911 caller, flagged them down and the officers were, again, told of the erratic behavior the woman had displayed. The woman then came out of the house, carrying the knife, and walked toward another woman who was standing in the front yard. By now, a third officer had arrived, and all three ordered the woman with the knife to put it down. She ignored them.

    My point is that, unlike a no-knock-raid, the officers here had no chance to prepare for this situation. Should they be 100% liable for any bad outcome? What if the hold fire and the woman does attack the other with the knife, can the victim sue the police for inaction?

  • RevengencerAlf||

    They have repeatedly proven that they can't be trusted to do the right thing with immunity for flawed decisions. The only rational recourse left is to relieve them of that shield.

    The word of a caller or a person on the street is not to be trusted and is not cause to use potentially lethal force on someone without sincere and thorough evaluation.

  • DJK||

    Wouldn't a Taser have worked in this situation?

  • the original jack||

    No. I sell Tasers in my business. They are not the desired weapon when a person's life is judged to be in immediate danger as was the case here. Plus, having a fence between the Taser shooter and the target is not a good thing.

  • DJK||

    I'm confused. Having a fence between you and someone with a close range weapon like a knife is immediate danger to one's life? How do you possibly come to that conclusion?

  • DJK||

    Never mind. It's the roommate or whoever that was judged to be at risk.

  • DJK||

    At any rate, that we have to dive into these facts seems to make it clear that summary reversal was not in order here.

  • Michael Ejercito||

    So why is it justified to impose strict liability on business owners per the Park doctrine?

    Does this not violate equal protection?

  • Rossami||

    Why not? For the same reason that no-fault insurance failed to live up to it's claims of fairness and cost control. No-fault fails to hold abusing officers accountable for their actions. The cash settlement papers over the problem and makes it even less likely that Congress (and/or state legislatures) will do anything to fix the root cause of the problem.

  • MatthewSlyfield||

    "Why not a simple no-fault payment from the police departments"

    Because that completely ignores the need to deter law enforcement officers from committing the acts that would prompt the payments.

  • DJK||

    How about malpractice insurance? We do it for other professions and it seems to work very well.

  • Michael Ejercito||

    How is qualified immunity consistent with equal protection?

    See the Park doctrine

    The government will prosecute executives who "stand in responsible relation to a public danger" through the Responsible Corporate Officer doctrine (sometimes called the "Park doctrine"). See U.S. v. Dotterweich (1943). In Dotterweich, the CEO was convicted of violating the Food, Drug and Cosmetic Act (FDCA) although he had no personal knowledge of the infraction, and the company was not convicted of the same crime! The Supreme Court upheld the misdemeanor conviction, endorsing the common law doctrine that a criminal conviction, without any criminal intent or even knowledge on the part of the defendant, is justified if the defendant is serving as a corporate officer.


    Interesting that the private sector can be convicted of crimes without even having to prove that that the defendant had "personal knowledge of the infraction", and yet those who are entrusted to enforce the law may have immunity if they did not know the conduct in question was illegal.

    What is the justification for this disparate treatment that can satisfy equal protection?

  • Brett Bellmore||

    "He may be a goon, but he's our goon."

  • DJK||

    You're making the mistake of believing in a government composed of the people, for the people, and by the people. With regard to police and prosecutors, that is not the case and SCOTUS has made this clear for decades.

  • Acrews||

    I am not at all unsympathetic to criticism of current QI doctrine. But I see less reason to criticize the decision to use summary reversal in these cases. Time and time again, the Court has told the Ninth Circuit how not to do QI analysis, e.g., don't frame clearly established law at too high a level of generality. And the Ninth Circuit's consistent response (which Kisela well illustrates), is to do exactly what the Supreme Court said not to do and to hold that this isn't what the panel is doing. That is, the Ninth Circuit not only misapplies the doctrine, but then goes on to explain how it's misapplication is actually entirely consistent with controlling Court precedent. The result, especially in the Ninth Circuit, is disastrous for the rule of law. These cases recur all the time, and the Ninth Circuit is huge. District judges (and subsequent panels) simply *cannot* faithfully follow both the Court's doctrine and Circuit precedent when this occurs. And if Circuit precedent comes later (and purports to be a faithful interpretation of Court precedent), then the practical effect is that the Ninth Circuit gets to live under a special rule. The Court simply has to knock these cases off the books; it's the only way to keep genuine uniformity. Otherwise, QI analysis (as opposed merely to its outcomes) will be starkly different depending where you live.

  • TheAmazingEmu||

    I thought the Sixth Circuit is the one most commonly reversed in QI cases.

    The problem I tend to see if the Court keeps using summary reversals to make the standard more and more narrow. In other words, the law was far more ambiguous than these cases would like you to believe and they're making substantive changes to legal doctrine without the benefit of oral arguments.

  • the original jack||

    Andrew Branca, a highly regarded self-defense expert, has a completely opposite take on the ruling.

    https://tinyurl.com/y7us6btk

    [had to use tinyurl as the link was too long to post. It goes to the Legal Insurrection website.]

  • ||

    I agree with his take. My issue is not with this particular case, but with QI in general.

  • the original jack||

    I am not generally a supporter of most any judicial-made up rules but especially for QI (or Andrew for that matter).

  • Michael Ejercito||

    You mean to imply Congress did not establish qualified immunity, but the courts just made it up as they went along?

  • David Nieporent||

    Well, yes. The legal fiction from SCOTUS is that even though § 1983 doesn't mention QI, Congress must've meant to include it.

  • commentguy||

    The fundamental problem is that police officers receive inadequate training (shout, then shoot). It's really open to debate whether police forces should be under some obligation to try to reduce the number of police killings. If you think yes, then QI is warranted. If you think that police forces have a general duty to learn from past mistakes and find less-lethal and less violent ways of dealing with situations like women attacking trees with a knife, then perhaps rubber-stamping every police shooting isn't such a good idea. I recall fairly recently there was a cop who was fired because he didn't shoot a suspect - he used his judgement and army training to try and talk the guy down, but the Rambo mentality said that he was wrong.

    In most first world countries it would be pretty rare for a cop to shoot someone holding a knife. What does that say about the skill level of US cops, that they can't think of anything except their guns?

  • Joe_dallas||

    This may be slightly off topic, though I think ginsburg would have more success getting the four conservative justices on board addressing problems with qualified immunity if her other dissents were not so reflexively policy arguments instead of legal arguments.

    For example , In her Encino motors dissent, also handed down today, she dishonestly quoted the the applicable statute, dishonestly described the service advisors job function to reach her conclusion that was not supported by the actual statute. The legal rational in her dissent was strongly supported by the language in the statute that didnt exist.

  • Rev. Arthur L. Kirkland||

    The prospect that five conservative justices will lose their taste for qualified immunity seems remote. Republicans (especially former prosecutors appointed by Republicans to the bench) tend to be especially enthusiastic, even slobbering cop succors.

  • DKWalser||

    I understand and agree with the critique of qualified immunity as a matter of judicially created public policy. However, it is the law and, until Congress changes the law by enacting a statute addressing the question, it's up to the 9th Circuit to faithfully apply the Supreme Court's precedents. They didn't come close in this case. The officer, based on the information he had at the time, reasonably believed that a woman wielding a knife, Ms. Hughes, was an imminent threat to another woman she was approaching. All three officers on the scene believed that to be true. After being instructed twice to drop the knife, the officer fired and he did so to protect the other women.

    Was he correct in believing that Ms. Hughes was a threat to the other woman? Under current precedent, the answer to that question doesn't matter. What matters is was it reasonable for the officer to believe that she was in danger based on the information he had at the time. Undoubtedly it was reasonable for him to hold this belief. The other two officers shared the same belief. Given that he held that belief, what case or statutory law clearly establishes that the officer would be violating Ms. Hughes' rights by using deadly force to stop her from harming the other woman? There is none. Therefore, the officer has qualified immunity. Period.

    Whether he should have qualified immunity is another topic. A topic that was not and should hot have been before the 9th circuit.

  • BillyG||

    However, it is the law and, until Congress changes the law by enacting a statute addressing the question, it's up to the 9th Circuit to faithfully apply the Supreme Court's precedents.
    Well now, that part itself is up to some debate. If you can cite the appropriate section of the legal code for QI, I'd like to see it.

  • Noscitur a sociis||

    The Supreme Court has said that qualified immunity is part of section 1983. Like Prof. Baude, you're entitled to disagree with that interpretation. A court of appeals judge isn't.

  • Brett Bellmore||

    Yes, that's the basic problem here. The Supreme court can claim that the Sun rises in the West and sets in the East, and the courts of appeals are required to shade their eyes gazing West in the morning.

    And, like the proverbial Emperor's courtiers, it isn't in the personal interest of the legal community to notice when the Court is naked.

    But that doesn't mean that everybody else is obligated to refrain from noticing, or making fun of the Court.

  • Noscitur a sociis||

    The Supreme Court has said that qualified immunity is part of section 1983. Like Prof. Baude, you're entitled to disagree with that interpretation. A court of appeals judge isn't.

  • MightyMouse||

    These cases are awful to read. Miscarriage after miscarriage. No one can be above the law, and this cannot be sustained indefinitely without tragic consequences.

    If the nation becomes hyper-polarized in all branches, as so many fear, then qualified immunity will be the single point of failure that takes down the entire system.

    The US Marshals service is controlled by the Executive.

  • David Nieporent||

    What matters is was it reasonable for the officer to believe that she was in danger based on the information he had at the time. Undoubtedly it was reasonable for him to hold this belief. The other two officers shared the same belief.

    The fact that they didn't shoot says otherwise.

    The question indeed is whether it was reasonable. And that's a fact question, not amenable to summary judgment - and certainly not worthy of summary reversal.

    Moreover, a cop ought not to be able to create QI for himself by overreacting so quickly that he doesn't have enough information to reasonably assess the situation.

  • BillyG||

    Moreover, a cop ought not to be able to create QI for himself by overreacting so quickly that he doesn't have enough information to reasonably assess the situation.

    Or acting in such a way as to create the perceived danger in the first place. The cop who jumped on top of a car and fired into the driver. The cops who pulled up behind the guy carrying an air rifle walking down the road. The cops who pulled up right at Tamir Rice. The cops who killed the guy walking in walmart carying a BB-gun by the barrel.

    Since 2015, police have averaged killing just about 1000 people per year. Meanwhile, deaths from being attacked are under 100 per year and closer to

  • Kyfho Myoba||

    Exactly what happened in the Tamir Rice case.

    The limits of tyrants are prescribed by the endurance of those whom they oppress.

    My patience is pretty much exhausted.

  • DKWalser||

    The fact that they didn't shoot says otherwise.

    One of the officers was a trainee. The other officer may have not felt he had a clear shot. The fact they didn't shoot does NOT prove what they believed at the time. What we have is their testimony that they believed the woman was in danger.

  • R. K. Phillips||

    Actually, that fact that they did not shoot AND the other woman was not injured does prove something. I think that any cop who shoots their weapon for any reason should lose their job, permanently. I'd bet that the number of police shootings would plummet.

  • ||

    Congratulations for the stupidest post of the week.

  • David Nieporent||

    One of the officers was a trainee.

    So what?

    The other officer may have not felt he had a clear shot.

    He might have been busy plotting his wife's surprise birthday party and not really paying attention, too. But why are you making up facts?

    The fact they didn't shoot does NOT prove what they believed at the time.

    it's evidence of what they believed at the time -- stronger evidence than post facto testimony covering for their colleague.

    What we have is their testimony that they believed the woman was in danger.

    Well, what the decision says is that they "believed Hughes to be a threat to Chadwick." But it doesn't say that they believed her to be an imminent threat. What we do know is that one of them also testified that he "wanted to continue trying verbal command[s] and see if that would work." So presumably he did not in fact view her as an imminent threat. (A sensible view, since she had committed no crime and made no threatening moves.)

  • Longtobefree||

    Well, if I was 6 feet away from a crazy lady with a knife, I would be pulling iron - - - - - -
    While backing up, facing her.
    But the cops do not have that option.
    Why was the other lady not running away?

  • Kyfho Myoba||

    Obviously, the other lady - who we can presume to know the knife-weilder - didn't think that she was in any danger. This puts the fact of whether or not the cops' belief was reasonable into play, and back in the trial courts' jurisdiction.

  • Gunstar1||

    Or she was too terrified to move. The judgement is based on what someone else in your shoes knew at the time. The officers did not know and could not know what the other woman was thinking. Not scared or too scared to move. It doesnt matter as that is not a part of the reasonable force decision.

    It is sad the descent uses all sorts of facts that are not at issue in the use of force decision.

  • BadLib||

    Reading the Court's opinion (and it may not be a complete and correct statement of the facts), I don't see how the officers would have known that the woman they believed to be at risk knew the mentally ill knife wielder.

    As well, the fact that party A knows party B does not mean that B is not a threat to A. In domestic violence cases, both parties always know each other - should the police therefore assume neither is a danger to the other?

    Indeed, if a potential victim knows the person threatening them, they might be at more risk as the potential victim may, instead of fleeing, remain and try to talk the person threatening them into surrendering - and by doing so remain in an area at risk.

    This seems like a case that is mired in the details of the facts and should be tried. Looking at the facts as the Supreme Court opinion states them and viewing those facts (along with additional detail that would likely come out during a full trial) in the most favorable light from the perspective of the woman who was shot, it seems reasonable that a jury might well decide that a reasonable officer would not have found that the woman was not an immediate threat.

  • David Nieporent||

    Obviously, the other lady - who we can presume to know the knife-weilder

    As the dissent correctly notes, this formulation already biases the question in favor of the cops.

    She was holding a knife -- a common household implement -- not "wielding" it.

  • FlameCCT||

    Q: Why was the other lady not running away?
    A: Scared stiff? Many people have a tendency to freeze when threatened especially those who's right to self defense has been taken away by government fiat.

  • David Nieporent||

    She testified she wasn't scared.

  • Sarcastr0||

    Long to be free sure is into broad and deadly state powers when it's police against other people!

  • DJK||

    Do you know what options the cops do have? They can use that Taser that they carry. A knife is not a distance weapon. A Taser is.

  • DKWalser||

    The police were separated from the two women by a chainlink fence. Ever try to fire a Taser through a chainlink fence without grounding its wires (and rendering it useless)?

  • tkamenick||

    Would things be better if QI weren't used to "resolve" factual disputes? Is there any serious disagreement that it's clearly established that cops can't shoot somebody who poses or reasonably appears to pose no threat to anybody else? That's not what the disagreement between the parties is about, it's about whether, as a factual matter, the cops could reasonably conclude this woman posed a threat. Effectively, the courts are finding as a matter of law that the cops COULD reasonably reach that conclusion, which is not how summary judgment is supposed to work.

  • Sympatica||

    This is like the court's regulatory decisions = if there is ANY POSSIBLE way the regulatory rule can make even a little sense then it stands.

    GET RID OF THE IMMUNITY LAWS OR TAKE AWAY THE COPS GUNS.

  • Davulek||

    For all you advocates of getting rid immunity, you'd better get ready to defend yourselves because every cop will quit.

  • DJK||

    Qualified immunity was created in 1982. Did we lack police before that?

  • ||

    I'm happy to. The cops already have no legal obligation to protect us, and most of them are cowards who wait outside while an active shooting is going on inside. Repeal all of our stupid gun laws, and I'll take my chances.

  • David Nieporent||

    because every cop will quit.

    And do what, become mall security? (Doubtful; they're not protected by QI.) It's not like they're abundantly qualified to do other things.

  • Sympatica||

    Most of us have to do that already. Call the cops and you are more likely to get killed than the criminal is to get caught.

    Rules of Modern Life:

    1) Never call the cops
    2) Never talk to the Feds.

  • Brandon Lyon||

    Just wondering here, not a threat or a call to violence: I wonder if the kind of leniency shown to a father killing their daughters rapist in cold blood would be afforded to the father in this case if he went and gunned down the cop. Otherwise people would be hypocrites and that never happens.

  • SF Pete||

    wow, intellectual nonsense, Will, go thru an academy course on active threats.. assessing a threat is something you are wholly ignorant of. "The law is an Ass". at Least the SCOTUS understands that.

    This country has a disturbing amount of law school graduates with Naïve notions about real life, and abundant persuasive abilities in court.

  • RonBPalmer||

    They protect this common law immunity because the judiciary depends on the same common law immunity to cover up their own blatant unconstitutional behavior that Chief Justice John Marshall in Marbury v. Madison labeled as criminal. Family law is by far the worst offender with most judges claiming they aren't even state actors in family law cases. This is so pervasive, that I wrote an entire book on the state action doctrine as it applies to judges.

  • David Nieporent||

  • Sympatica||

    We need to eliminate the immunity laws OR take the guns away from the police.

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