05 Apr Supreme Court granted, vacated, and remanded Kiesla v. Hughes
Monday, April 2nd in a per curiam opinion, the Supreme Court granted, vacated, and remanded Kiesla v. Hughes, a qualified immunity case out of the Ninth Circuit. This is another instance of the Supreme Court reminding lower courts that they cannot analyze the clearly established prong of the qualified immunity inquiry at too high of a level of generality or utilize case law which was decided after the incident in question.
In this case, police officers received a report that a woman was engaged in erratic behavior with a knife. Specifically, someone called 911 after viewing a woman (Hughes) hacking a tree with a kitchen knife. Three officers arrived on the scene and the person who called 911 flagged them down and described the woman she had seen with the knife.
One of the officers then observed a woman, Chadwick, in a driveway. Chadwick was separated from the officers by a chain-link fence. The officers then saw Hughes emerge from the house carrying a large knife at her side. She matched the description provided by the woman who had called 911. Hughes walked toward Chadwick and stopped no more than 6 feet from her. The officers all drew their guns and twice ordered Hughes to drop the knife. Hughes appeared calm, but did not acknowledge the officers or adhere to their commands. Kisela, one of the officers, then fired four shots at Hughes and seriously injured her. All three officers testified that they believed Hughes was a threat to Chadwick, though only one officer shot at Hughes.
The Ninth Circuit concluded that the evidence was sufficient to find a Fourth Amendment violation and that the violation was clearly established based on Ninth Circuit precedent.
The Supreme Court granted the petition for certiorari and vacated and remanded the Ninth Circuit’s decision, concluding that even if the Fourth Amendment had been violated (which it did not decide), the officer was entitled to qualified immunity. After reviewing the relevant legal standard and noting that “[t]his Court has ‘repeatedly told courts- and the Ninth Circuit in particular- not to define clearly established law at a high level of generality,” the Court concluded that “[t]his is far from an obvious case in which any competent officer would have known that shooting Hughes to protect Chadwick would violate the Fourth Amendment.” Further, the Court noted that the Ninth Circuit erroneously relied on case law that was either not on point / too factually distinct from what occurred here or that was decided after the facts of this case, and thus, the Court concluded the law was not clearly established at the time of the incident.
Justice Sotomayor, with whom Justice Ginsburg joined, dissented from the opinion. She pointed out other facts that she believed were material and that the majority omitted from its analysis, which would tip the scale in favor of Hughes in this case (specifically, the Hughes was calm and the knife was pointing down and away from Chadwick). The dissent believed that a jury could reasonably conclude that Hughes posed no objective threat to Chadwick (or the officers) and therefore qualified immunity would be inappropriate. Justice Sotomayor also notes that the clearly established prong is not “nearly as onerous as the majority makes it out to be.” Regarding the clearly established prong, she concludes: “The majority’s decision, no matter how much it says otherwise, ultimately rests on a faulty premise: that those cases are not identical to this one. But that is not the law, for our cases have never required a factually identical case to satisfy the “clearly established” standard.”
To read the Court’s opinion, click here.
There are a few important takeaways from this case and other trends more generally. First, while it is helpful that the Supreme Court has continued to provide these reminders to the lower courts about the qualified immunity analysis each term, the message does not seem to be sinking in and we continue to see district courts and circuit courts applying the clearly established prong at a very high level of generality and/or finding immaterial facts preclude the entry of summary judgment and denying qualified immunity. This case is another arrow in your quiver to try to remind the courts where you practice that qualified immunity is a robust defense.
At the same time, as some of you may know, there is an effort by some academics and now the CATO institute to try to chip away and/or completely do away with qualified immunity as a defense. See, here. Justice Thomas has taken note of their efforts and has even noted elsewhere that he believes the Court may want to consider doing away with the qualified immunity defense (Though he did not dissent in this case). See Ziglar v. Abbasi, 52 U.S. __ (2017). Justice Sotomayor consistently dissents from these qualified immunity reversals and now with Justice Ginsburg joining here, there may be an appetite among some of the Justices to do away with the defense or limit it. Justice Sotomayor actually cites to Professor Baude, who was recently on the CATO panel, discussing how to limit / abolish qualified immunity. So the Supreme Court is taking note of the academic effort in this area (or at least Justice Thomas and Sotomayor are). Here’s what Justice Sotomayor says in this case, citing to Professor Baude:
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.
This academic and now CATO-led backlash against qualified immunity is something IMLA is aware of is seeking to try to counteract.