Amy Hughes v. Andrew Kisela , 841 F.3d 1081 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMY HUGHES, No. 14-15059
Plaintiff-Appellant,
D.C. No.
v. 4:11-cv-00366-FRZ
ANDREW KISELA, Corporal,
0203; individually and in his OPINION
official capacity,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, District Judge, Presiding
Argued and Submitted September 12, 2016
San Francisco, California
Filed November 28, 2016
Before: Ronald M. Gould and Marsha S. Berzon, Circuit
Judges, and William K. Sessions III,* District Judge.
Opinion by Judge Sessions
*
The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
2 HUGHES V. KISELA
SUMMARY**
Civil Rights
The panel reversed the district court’s summary judgment
in favor of a University of Arizona police officer and
remanded in a 42 U.S.C. § 1983 action in which plaintiff
alleged that the officer used excessive force when he shot her
four times.
After receiving a report of a person hacking at a tree with
a knife, police officers responded to the scene and upon their
arrival saw plaintiff carrying a large kitchen knife. Plaintiff
began walking toward another woman and did not comply
with the officers’ demands to drop the knife. Unable to
approach the two women because of a chain-link fence,
defendant shot plaintiff four times.
The panel held that material questions of fact, such as the
severity of the threat, the adequacy of police warnings, and
the potential for less intrusive means were plainly in dispute.
Defendant therefore was not entitled to summary judgment
with respect to the reasonableness of his actions.
The panel further held that defendant was not entitled to
qualified immunity. The panel determined that the facts,
viewed in plaintiff’s favor, presented the police shooting a
woman who was committing no crime and holding a kitchen
knife. While the woman with the knife may have been acting
erratically, was approaching a third party, and did not
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
HUGHES V. KISELA 3
immediately comply with orders to drop the knife, a rational
jury—accepting the facts in the light most favorable to
plaintiff —could find that she had a constitutional right to
walk down her driveway holding a knife without being shot.
COUNSEL
Vince Rabago (argued) and Stacy Scheff, Vince Rabago Law
Office PLC, Tucson, Arizona, for Plaintiff-Appellant.
Robert R. McCright (argued), Assistant Attorney General;
Thomas C. Horne, Arizona Attorney General; Office of the
Attorney General, Tucson, Arizona; for Defendant-Appellee.
OPINION
SESSIONS, District Judge:
After receiving a report of a person hacking at a tree with
a knife, three members of the University of Arizona Police
Department (UAPD) responded to the scene. Upon their
arrival, the officers saw Plaintiff Amy Hughes carrying a
large kitchen knife. Ms. Hughes then began to walk toward
another woman, Sharon Chadwick, at which point the police
yelled for her to drop the knife. Ms. Hughes did not comply.
Ms. Chadwick has submitted an affidavit in which she
describes Ms. Hughes’s demeanor at the time as composed
and non-threatening. Multiple witnesses attest that Ms.
Hughes never raised the knife as she neared Ms. Chadwick.
Unable to approach the two women because of a chain-link
fence, defendant and UAPD Corporal Andrew Kisela shot
Ms. Hughes four times.
4 HUGHES V. KISELA
Ms. Hughes brings suit under 42 U.S.C. § 1983 claiming
excessive force in violation of her constitutional rights. The
district court granted summary judgment in favor of Corporal
Kisela, concluding that his actions were reasonable and that
he was entitled to qualified immunity. The facts when
viewed in the light most favorable to Ms. Hughes do not
support the district court’s decision. We reverse and remand
for further proceedings.
FACTUAL BACKGROUND
On May 21, 2010, Corporal Kisela and UAPD officer-in-
training Alex Garcia were monitoring the Tucson Police
Department radio when they heard a “check welfare” call
regarding a woman reportedly hacking at a tree with a large
knife. The officers drove to the location and were told by the
reporting party that the person with the knife had been acting
erratically. UAPD Officer Lindsay Kunz also responded to
the call.
The following events occurred in less than one minute.
Soon after the three officers arrived, Amy Hughes emerged
from her house carrying a large kitchen knife. Sharon
Chadwick was standing outside the house in the vicinity of
the driveway. According to Ms. Chadwick’s affidavit, Ms.
Hughes was composed and content as she exited the house,
holding the kitchen knife down to her side with the blade
pointing backwards. Ms. Chadwick submits that she was
never in fear, and did not feel that Ms. Hughes was a threat.
As Ms. Hughes approached Ms. Chadwick, the officers
each drew their guns and ordered her to drop the knife.
Although Corporal Kisela contends that the officers yelled
numerous time for Ms. Hughes to drop the knife, Ms.
HUGHES V. KISELA 5
Chadwick recalls hearing only two commands in quick
succession. Ms. Hughes did not drop the knife and continued
to move toward Ms. Chadwick. Corporal Kisela recalls
seeing Ms. Hughes raise the knife as if to attack. Officers
Garcia and Kunz later told investigators that they did not see
Ms. Hughes raise the knife.
A chain link fence at the edge of the property prevented
the officers from getting any closer to the two women.
Because the top of the fence obstructed his aim, Corporal
Kisela dropped down and fired four shots through the fence.
Each of the shots struck Ms. Hughes, causing her to fall at
Ms. Chadwick’s feet. Her injuries were not fatal.
In an interview with police after the shooting, Ms.
Chadwick explained that she and Ms. Hughes lived together,
and that she had managed Ms. Hughes’s behavior in the past.
She also informed police that Ms. Hughes had been
diagnosed with bipolar disorder and was taking medication.
Ms. Chadwick believes that Ms. Hughes did not understand
what was happening when the police yelled for her to drop
the knife. She also believes that Ms. Hughes would have
given her the knife if asked, and that the police should have
afforded her that opportunity.
STANDARD OF REVIEW
A district court’s grant of a motion for summary judgment
is reviewed de novo. Colwell v. Bannister, 763 F.3d 1060,
1065 (9th Cir. 2014). “Summary judgment is appropriate
only ‘if the pleadings, the discovery and disclosure materials
on file, and any affidavits show that there is no genuine issue
as to any material fact and that the movant is entitled to
judgment as a matter of law.’” Stoot v. City of Everett,
6 HUGHES V. KISELA
582 F.3d 910, 918 (9th Cir. 2009) (quoting Fed. R. Civ. P.
56(c)). In reviewing a summary judgment ruling, we draw all
reasonable inferences in favor of the non-moving party.
Galvin v. Hay, 374 F.3d 739, 745 (9th Cir. 2004). We are
obligated to construe the record in the light most favorable to
the party opposing summary judgment. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
We review an officer’s entitlement to qualified immunity de
novo. Glenn v. Washington Cty., 673 F.3d 864, 870 (9th Cir.
2011).
DISCUSSION
I. Excessive Force
When evaluating a Fourth Amendment claim of excessive
force, courts ask “whether the officers’ actions are
‘objectively reasonable’ in light of the facts and
circumstances confronting them.” Graham v. Connor,
490 U.S. 386, 397 (1989). This inquiry “requires a careful
balancing of ‘the nature and quality of the intrusion on the
individual’s Fourth Amendment interests’ against the
countervailing governmental interests at stake.” Id. at 396
(quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)). “The
calculus of reasonableness must embody allowance for the
fact that police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and
rapidly evolving—about the amount of force that is necessary
in a particular situation.” Id. at 396–97. Reasonableness
therefore “must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” Id. at 396.
HUGHES V. KISELA 7
The strength of the government’s interest in the force
used is evaluated by examining three primary factors: (1) “the
severity of the crime at issue,” (2) “whether the suspect poses
an immediate threat to the safety of the officers or others,”
and (3) “whether [s]he is actively resisting arrest or
attempting to evade arrest by flight.” Id. (citing Garner,
471 U.S. at 8–9). The “‘most important’ factor under
Graham is whether the suspect posed an ‘immediate threat to
the safety of officers or third parties.’” George v. Morris,
736 F.3d 829, 838 (9th Cir. 2013) (quoting Bryan v.
MacPherson, 630 F.3d 805, 826 (9th Cir. 2010)).
The factors identified in Graham are not exclusive. See
Bryan, 630 F.3d at 826. When assessing the officer’s
conduct, a court must examine “the totality of the
circumstances and consider ‘whatever specific factors may be
appropriate in a particular case, whether or not listed in
Graham.’” Id. (quoting Franklin v. Foxworth, 31 F.3d 873,
876 (9th Cir. 1994)). Other relevant factors may include the
availability of less intrusive force, whether proper warnings
were given, and whether it should have been apparent to the
officer that the subject of the force used was mentally
disturbed. See, e.g., Bryan, 630 F.3d at 831; Deorle v.
Rutherford, 272 F.3d 1272, 1282–83 (9th Cir. 2001). With
respect to the possibility of less intrusive force, officers need
not employ the least intrusive means available so long as they
act within a range of reasonable conduct. See Scott v.
Henrich, 39 F.3d 912, 915 (9th Cir. 1994).
In this case, when viewing the facts in the light most
favorable to Ms. Hughes, the record does not support
Corporal Kisela’s perception of an immediate threat. Officer
Garcia told Tucson police that Ms. Hughes did not raise the
knife and did not make any aggressive or threatening actions
8 HUGHES V. KISELA
toward Ms. Chadwick. Officer Kunz similarly did not see
Ms. Hughes raise her arm. Ms. Chadwick describes Ms.
Hughes as having been composed and non-threatening
immediately prior to the shooting.1
Corporal Kisela was undoubtedly concerned for Ms.
Chadwick’s safety. He had received a report of a person with
a knife acting erratically, and soon thereafter saw that same
person still holding a knife and approaching another
individual. In some situations, “[i]f the person is armed . . .
a furtive movement, harrowing gesture, or serious verbal
threat might create an immediate threat.” George, 736 F.3d
at 838. Nonetheless, “a simple statement by an officer that he
fears for his safety or the safety of others is not enough; there
must be objective factors to justify such a concern.” Deorle,
272 F.3d at 1281 (“A desire to resolve quickly a potentially
dangerous situation is not the type of governmental interest
that, standing alone, justifies the use of force that may cause
serious injury.”); see also Harris v. Roderick, 126 F.3d 1189,
1204 (9th Cir. 1997) (“Law enforcement officials may not kill
suspects who do not pose an immediate threat to their safety
or to the safety of others simply because they are armed.”).
Here, viewing those “objective factors” in a light most
favorable to Ms. Hughes, a rational jury could find that she
did not present an immediate threat to the safety of others,
and that Corporal Kisela’s response was unreasonable. Id.
1
While Ms. Chadwick’s description may not be entirely consistent
with some of her other statements in the record, “we must draw all
justifiable inferences in favor of [Ms. Hughes], including questions of
credibility and of the weight to be accorded particular evidence.” Masson
v. New Yorker Magazine, Inc., 501 U.S. 496, 520 (1991).
HUGHES V. KISELA 9
The question of the severity of the crime being committed
also weighs in Ms. Hughes’s favor. The three officers present
at the time of the shooting were responding to a “check
welfare” call. No crime was reported. As in Deorle, where
the police shot a mentally ill man acting strangely, the
officers arrived “not to arrest [Ms. Hughes], but to investigate
[her] peculiar behavior.” 272 F.3d at 1280–81. And also as
in Deorle, this was not a situation of a “lone police officer
suddenly confronted by a dangerous armed felon . . . .” Id. at
1283. The majority in Deorle noted that “[t]he character of
the offense is often an important consideration in determining
whether the use of force was justified,” and ultimately
concluded that “where the crime being committed, if any, was
minor and the danger to . . . others appear to have been
minimal,” the governmental interest in using force was
“clearly not substantial.” Id. at 1280–82. A rational jury,
viewing the facts in a light most favorable to Ms. Hughes,
could reach the same conclusion here.
The third factor cited in Graham, whether the suspect was
resisting or seeking to evade arrest, does not apply as the
events in this case occurred too quickly for the officers to
make an arrest attempt. A related issue is Ms. Hughes’s
disregard of the officers’ commands to drop the knife. It is
undisputed that officers yelled at least twice for her to drop
the knife. If the case goes to trial, the jury may hear evidence
of several additional warnings. At summary judgment,
however, the Chadwick affidavit plays an important role on
this point. Ms. Chadwick heard only two warnings in quick
succession, and perceived that Ms. Hughes did not understand
what was happening. Whether the police should have
perceived this is a question for the jury.
10 HUGHES V. KISELA
At the time, the police were privy to facts suggesting that
Ms. Hughes might have a mental illness. The initial report
was to “check welfare” of a person trying to cut down a tree
with a knife. Upon arriving at the scene, the reporting party
informed Corporal Kisela that this same person was acting
erratically. Just prior to the shooting, Corporal Kisela himself
recalled Ms. Hughes “stumbling” toward Ms. Chadwick.
This Court has “refused to create two tracks of excessive
force analysis, one for the mentally ill and one for serious
criminals.” Bryan, 630 F.3d at 829. The Court has, however,
“found that even when an emotionally disturbed individual is
acting out and inviting officers to use deadly force to subdue
him, the governmental interest in using such force is
diminished by the fact that the officers are confronted . . .
with a mentally ill individual.” Id. (citation and internal
quotation marks omitted). A reasonable jury could conclude,
based upon the information available to Corporal Kisela at
the time, that there were sufficient indications of mental
illness to diminish the governmental interest in using deadly
force.
Another factor to be considered is whether there were less
intrusive means that could have been used before employing
deadly force. As noted previously, officers “need not avail
themselves of the least intrusive means of responding to an
exigent situation; they need only act within that range of
conduct we identify as reasonable.” Henrich, 39 F.3d at 915.
However, “police are ‘required to consider [w]hat other
tactics if any were available,’” and whether there are “clear,
reasonable and less intrusive alternatives” to the force being
contemplated. Bryan, 630 F.3d at 831 (quoting Headwaters
Forest Def. v. Cty. of Humboldt, 240 F.3d 1185, 1204 (9th
Cir. 2000)); see also Smith v. City of Hemet, 394 F.3d 689,
HUGHES V. KISELA 11
703 (9th Cir. 2005) (holding that officers should consider
“alternative techniques available for subduing [a suspect] that
presented a lesser threat of death or serious injury”).
In this case, the record includes expert opinions about the
reasonableness of using a firearm in this situation. Ms.
Hughes’s expert concluded that Corporal Kisela should have
used his Taser, and that shooting through the fence was both
dangerous and excessive. Corporal Kisela’s expert opined
that a Taser would likely have become tangled in the fence,
and that the shooting was reasonable. It is well established
that a jury may hear expert testimony in this type of case, and
rely upon such evidence in assessing whether the officer’s use
of force was unreasonable. See Larez v. City of Los Angeles,
946 F.2d 630, 635 (9th Cir. 1991) (as amended) (finding that
testimony of “an expert on proper police procedures and
policies” was relevant and admissible). Here, the differences
in the experts’ opinions reinforce our conclusion that there
are questions for a jury to consider in determining whether
Ms. Hughes’s constitutional rights were violated.
This Court has noted that “[b]ecause [the question of
excessive force] nearly always requires a jury to sift through
disputed factual contentions, and to draw inferences
therefrom, we have held on many occasions that summary
judgment or judgment as a matter of law in excessive force
cases should be granted sparingly.” Santos v. Gates, 287 F.3d
846, 853 (9th Cir. 2002); see also Liston v. Cty. of Riverside,
120 F.3d 965, 976 n.10 (9th Cir. 1997) (as amended) (“We
have held repeatedly that the reasonableness of force used is
ordinarily a question of fact for the jury.”). This is such a
case. Material questions of fact, such as the severity of the
threat, the adequacy of police warnings, and the potential for
less intrusive means are plainly in dispute. See, e.g., City of
12 HUGHES V. KISELA
Hemet, 394 F.3d at 703 (“Considering the severity and extent
of the force used, the three basic Graham factors, and the
availability of other means of accomplishing the arrest, it is
evident that the question whether the force used here was
reasonable is a matter that cannot be resolved in favor of the
defendants on summary judgment.”). Corporal Kisela is not
entitled to summary judgment with respect to the
reasonableness of his actions.
II. Qualified Immunity
The district court determined that because Corporal
Kisela acted reasonably, it need not reach the question of
qualified immunity. Nonetheless, the court commented that
“under the totality of the circumstances and the standard of
whether it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted, it
appears that [Corporal Kisela’s] conduct was reasonable;
[Corporal Kisela] would therefore be entitled to qualified
immunity.” As discussed above, there are questions of fact
in dispute that foreclose a finding of reasonableness as a
matter of law. We therefore undertake a qualified immunity
analysis.
The Supreme Court has explained that “[t]he doctrine of
qualified immunity protects government officials ‘from
liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.’” Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity
shields an officer from liability even if his or her actions
resulted from “a mistake of law, a mistake of fact, or a
mistake based on mixed questions of law and fact.” Groh v.
HUGHES V. KISELA 13
Ramirez, 540 U.S. 551, 567 (2004) (Kennedy, J., dissenting)).
The purpose of qualified immunity is to strike a balance
between the competing “need to hold public officials
accountable when they exercise power irresponsibly and the
need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.” Id.
“Qualified immunity gives government officials breathing
room to make reasonable but mistaken judgments about open
legal questions. When properly applied, it protects ‘all but
the plainly incompetent or those who knowingly violate the
law.’” Ashcroft v. Al-Kidd, 563 U.S. 731, 743 (2011)
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
“In determining whether an officer is entitled to qualified
immunity, we consider (1) whether there has been a violation
of a constitutional right; and (2) whether that right was
clearly established at the time of the officer’s alleged
misconduct.” Lal v. California, 746 F.3d 1112, 1116 (9th
Cir. 2014) (citing Pearson, 555 U.S. at 232). Consequently,
at summary judgment, an officer may be denied qualified
immunity in a Section 1983 action “only if (1) the facts
alleged, taken in the light most favorable to the party
asserting injury, show that the officer’s conduct violated a
constitutional right, and (2) the right at issue was clearly
established at the time of the incident such that a reasonable
officer would have understood [his] conduct to be unlawful
in that situation.” Torres v. City of Madera, 648 F.3d 1119,
1123 (9th Cir. 2011).
Here, the question of a constitutional violation involves
disputed facts which, when viewed most favorably to Ms.
Hughes, could support a rational jury finding in her favor.
We therefore move to the second question: whether the right
at issue was clearly established such that a reasonable officer
14 HUGHES V. KISELA
would have understood his actions were unlawful. The law
does not “require a case directly on point, but existing
precedent must have placed the . . . constitutional question
beyond debate.” al-Kidd, 563 U.S. at 740. That said, this
Court has acknowledged that qualified immunity may be
denied in novel circumstances. See Mattos v. Agarano,
661 F.3d 433, 442 (9th Cir. 2011) (citing Hope v. Pelzer,
536 U.S. 730, 741 (2002)). “Otherwise, officers would
escape responsibility for the most egregious forms of conduct
simply because there was no case on all fours prohibiting that
particular manifestation of unconstitutional conduct.”
Deorle, 272 F.3d at 1286; see also Brosseau v. Haugen,
543 U.S. 194, 199 (2004) (stating that “in an obvious case,
these [Graham] standards can ‘clearly establish’ the answer,
even without a body of relevant case law”).
The most analogous Ninth Circuit case is Glenn, 673 F.3d
864, in which an eighteen-year-old man was shot in his
driveway by police officers. Police received a report of an
agitated, intoxicated man carrying a pocket knife and
threatening to kill himself. Although at least one officer was
told that the man had calmed down, when police saw him
holding the knife to his own neck they drew their guns and
screamed for him to drop it. Additional officers arrived at the
scene, one of whom shot the man with several beanbags. The
impact of the beanbags caused the man to move away from
the beanbag fire and toward the house in which his parents
were standing. As police had determined that if the man
“made a move toward the house with his parents inside, they
would use deadly force,” they opened fire and killed him.
Glenn, 673 F.3d at 869.
Glenn is similar to this case in several respects. For
example: it was not clear that the decedent in Glenn was
HUGHES V. KISELA 15
actually threatening anyone; no serious crime was being
committed; there was no effort to resist or evade arrest aside
from failing to put down the knife; the failure to drop the
knife may have been the result of confusion by an impaired
person; and it might have been reasonable to use less
intrusive force. Although the district court had granted
summary judgment, this Court remanded Glenn for a jury
trial. Id. at 879–80.
Deorle, 272 F.3d 1272, also offers similar facts, though
the plaintiff in Deorle was acting far more strangely than Ms.
Hughes. In Deorle, an officer responded to a call about an
individual who was drunk and behaving erratically. At
different points, the man brandished a hatchet, shouted “kill
me,” threatened to “kick [a police officer’s] ass,” and walked
around with an unloaded cross-bow. 272 F.3d at 1276–77.
Police observed him for five to ten minutes before the man
began walking towards an officer with a bottle of lighter
fluid. At that point the officer fired a bean bag, permanently
blinding the man and fracturing his skull in several places.
Id. at 1277–78.
As in this case, police in Deorle were at the scene to
investigate peculiar behavior. Some sort of mental
impairment was evident, the suspect was not trying to escape,
and the risk of imminent harm was in question. In denying
the officer’s qualified immunity defense, this Court wrote:
Every police officer should know that it is
objectively unreasonable to shoot . . . an
unarmed man who: has committed no serious
offense, is mentally or emotionally disturbed,
has been given no warning of the imminent
use of such a significant degree of force,
16 HUGHES V. KISELA
poses no risk of flight, and presents no
objectively reasonable threat to the safety of
the officer or other individuals.
Id. at 1285.
Here, several of those same determinations are in dispute,
namely: whether Corporal Kisela was reasonable in believing
that the kitchen knife was a weapon; whether he should have
suspected mental health issues; whether the warning was
sufficient; and most importantly, whether it was reasonable
to believe that Ms. Hughes presented a threat to Ms.
Chadwick’s safety. If those questions are determined in Ms.
Hughes’s favor, then Corporal Kisela clearly violated her
constitutional right.
Corporal Kisela claims support to the contrary from
Blanford v. Sacramento County, 406 F.3d 1110 (9th Cir.
2005), in which police had received reports of a man in a ski
mask carrying a sword through a suburban residential
neighborhood. But that case could not reasonably be relied
upon as justifying shooting Ms. Hughes. Mr. Blanford was
carrying a two-and-a-half-foot-long Civil War-era cavalry
saber and made “a loud growling or roaring sound.”
Blanford, 406 F.3d at 1113. He then walked toward a
residence and tried to enter after searching his pockets for
keys. Unsuccessful, he turned to a walkway, saw the police
officers with guns drawn, and heard them order him to drop
the sword. The police shot the man as he rounded the far
corner of the house, then again as he tried to enter through
another door. After the man continued walking, police fired
a third time and severed his spine, rendering him a paraplegic.
On those facts, the Court found that the officers were entitled
to qualified immunity. Id. at 1119.
 HUGHES V. KISELA 17
This case, when viewing the facts in Ms. Hughes’s favor,
differs from Blanford in several critical respects. Most
importantly, in contrast to a clearly disturbed man carrying a
sword, Ms. Hughes held a kitchen knife—which has a
perfectly benign primary use—down at her side, and
according to Ms. Chadwick’s affidavit, did not appear either
angry or menacing. The only information the police had
regarding her use of the knife was that she was carving a tree,
not that she was threatening or hurting a person. Mr.
Blanford plainly disregarded police orders to drop the
weapon. Here, it was apparent to Ms. Chadwick, and there is
a fact issue whether it should have been evident to the police,
that Ms. Hughes did not understand what was happening
when they yelled for her to drop the knife. And in Blanford
the suspect actively evaded police, while Ms. Hughes made
no such attempt to get away.
The application of qualified immunity in this case will
depend upon the facts as determined by a jury. The facts,
viewed in Ms. Hughes’s favor, present the police shooting a
woman who was committing no crime and holding a kitchen
knife. While the woman with the knife may have been acting
erratically, was approaching a third party, and did not
immediately comply with orders to drop the knife, a rational
jury—again accepting the facts in the light most favorable to
Ms. Hughes—could find that she had a constitutional right to
walk down her driveway holding a knife without being shot.
As indicated by Glenn and Deorle, as well as the Supreme
Court’s reference to the “obvious case,” Brosseau, 543 U.S.
at 199, that right was clearly established. Based on the
disputed facts, Corporal Kisela is not entitled to qualified
immunity.
18 HUGHES V. KISELA
CONCLUSION
We therefore reverse the district court’s grant of summary
judgment and remand for a jury to determine whether
Corporal Kisela’s use of deadly force was lawful.
REVERSED AND REMANDED.