Kisela v. Hughes , 200 L. Ed. 2d 449 ( 2018 )

Cite as: 584 U. S. ____ (2018) 1
Per Curiam
SUPREME COURT OF THE UNITED STATES
ANDREW KISELA v. AMY HUGHES
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 17–467. Decided April 2, 2018
PER CURIAM.
Petitioner Andrew Kisela, a police officer in Tucson,
Arizona, shot respondent Amy Hughes. Kisela and two
other officers had arrived on the scene after hearing a
police radio report that a woman was engaging in erratic
behavior with a knife. They had been there but a few
minutes, perhaps just a minute. When Kisela fired,
Hughes was holding a large kitchen knife, had taken steps
toward another woman standing nearby, and had refused
to drop the knife after at least two commands to do so.
The question is whether at the time of the shooting
Kisela’s actions violated clearly established law.
The record, viewed in the light most favorable to
Hughes, shows the following. In May 2010, somebody in
Hughes’ neighborhood called 911 to report that a woman
was hacking a tree with a kitchen knife. Kisela and an-
other police officer, Alex Garcia, heard about the report
over the radio in their patrol car and responded. A few
minutes later the person who had called 911 flagged down
the officers; gave them a description of the woman with
the knife; and told them the woman had been acting errat-
ically. About the same time, a third police officer, Lindsay
Kunz, arrived on her bicycle.
Garcia spotted a woman, later identified as Sharon
Chadwick, standing next to a car in the driveway of a
nearby house. A chain-link fence with a locked gate sepa-
rated Chadwick from the officers. The officers then saw
another woman, Hughes, emerge from the house carrying
a large knife at her side. Hughes matched the description
2 KISELA v. HUGHES
Per Curiam
of the woman who had been seen hacking a tree. Hughes
walked toward Chadwick and stopped no more than six
feet from her.
All three officers drew their guns. At least twice they
told Hughes to drop the knife. Viewing the record in the
light most favorable to Hughes, Chadwick said “take it
easy” to both Hughes and the officers. Hughes appeared
calm, but she did not acknowledge the officers’ presence or
drop the knife. The top bar of the chain-link fence blocked
Kisela’s line of fire, so he dropped to the ground and shot
Hughes four times through the fence. Then the officers
jumped the fence, handcuffed Hughes, and called para-
medics, who transported her to a hospital. There she was
treated for non-life-threatening injuries. Less than a
minute had transpired from the moment the officers saw
Chadwick to the moment Kisela fired shots.
All three of the officers later said that at the time of the
shooting they subjectively believed Hughes to be a threat
to Chadwick. After the shooting, the officers discovered
that Chadwick and Hughes were roommates, that Hughes
had a history of mental illness, and that Hughes had been
upset with Chadwick over a $20 debt. In an affidavit
produced during discovery, Chadwick said that a few
minutes before the shooting her boyfriend had told her
Hughes was threatening to kill Chadwick’s dog, named
Bunny. Chadwick “came home to find” Hughes “somewhat
distressed,” and Hughes was in the house holding Bunny
“in one hand and a kitchen knife in the other.” Hughes
asked Chadwick if she “wanted [her] to use the knife on
the dog.” The officers knew none of this, though. Chad-
wick went outside to get $20 from her car, which is when
the officers first saw her. In her affidavit Chadwick said
that she did not feel endangered at any time. Ibid. Based
on her experience as Hughes’ roommate, Chadwick stated
that Hughes “occasionally has episodes in which she acts
inappropriately,” but “she is only seeking attention.” 2
Cite as: 584 U. S. ____ (2018) 3
Per Curiam
Record 108.
Hughes sued Kisela under Rev. Stat. §1979, 42 U.S. C.
§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. 862 F.3d 775
(2016).
The Court of Appeals first held that the record, viewed
in the light most favorable to Hughes, was sufficient to
demonstrate that Kisela violated the Fourth Amendment.
See id., at 782. The court next held that the violation was
clearly established because, in its view, the constitutional
violation was obvious and because of Circuit precedent
that the court perceived to be analogous. Id., at 785.
Kisela filed a petition for rehearing en banc. Over the
dissent of seven judges, the Court of Appeals denied it.
Kisela then filed a petition for certiorari in this Court.
That petition is now granted.
In one of the first cases on this general subject, Tennes-
see v. Garner, 471 U.S. 1 (1985), the Court addressed the
constitutionality of the police using force that can be deadly.
There, the Court held that “[w]here the officer has proba-
ble cause to believe that the suspect poses a threat of
serious physical harm, either to the officer or to others, it
is not constitutionally unreasonable to prevent escape by
using deadly force.” Id., at 11.
In Graham v. Connor, 490 U.S. 386, 396 (1989), the
Court held that the question whether an officer has used
excessive force “requires careful attention to the facts and
circumstances of each particular case, including the sever-
ity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others,
and whether he is actively resisting arrest or attempting
to evade arrest by flight.” “The ‘reasonableness’ of a par-
ticular use of force must be judged from the perspective of
a reasonable officer on the scene, rather than with the
4 KISELA v. HUGHES
Per Curiam
20/20 vision of hindsight.” Ibid. And “[t]he calculus of
reasonableness must embody allowance for the fact that
police officers are often forced to make split-second judg-
ments—in circumstances that are tense, uncertain, and
rapidly evolving—about the amount of force that is neces-
sary in a particular situation.” Id., at 396–397.
Here, the Court need not, and does not, decide whether
Kisela violated the Fourth Amendment when he used
deadly force against Hughes. For 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.
“Qualified immunity attaches when an official’s conduct
does not violate clearly established statutory or constitu-
tional rights of which a reasonable person would have
known.” White v. Pauly, 580 U. S. ___, ___ (2017) (per
curiam) (slip op., at 6) (alterations and internal quotation
marks omitted). “Because the focus is on whether the
officer had fair notice that her conduct was unlawful,
reasonableness is judged against the backdrop of the law
at the time of the conduct.” Brosseau v. Haugen, 543 U.S.
194, 198 (2004) (per curiam).
Although “this Court’s caselaw does not require a case
directly on point for a right to be clearly established,
existing precedent must have placed the statutory or
constitutional question beyond debate.” White, 580 U. S.,
at ___ (slip op., at 6) (internal quotation marks omitted).
“In other words, immunity protects all but the plainly
incompetent or those who knowingly violate the law.”
Ibid. (internal quotation marks omitted). This Court has
“ ‘repeatedly told courts—and the Ninth Circuit in particu-
lar—not to define clearly established law at a high level of
generality.’ ” City and County of San Francisco v.
Sheehan, 575 U. S. ___, ___ (2015) (slip op., at 13) (quoting
Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)); see also
Brosseau, supra, at 198–199.
Cite as: 584 U. S. ____ (2018) 5
Per Curiam
“[S]pecificity is especially important in the Fourth
Amendment context, where the Court has recognized that
it is sometimes difficult for an officer to determine how the
relevant legal doctrine, here excessive force, will apply to
the factual situation the officer confronts.” Mullenix v.
Luna, 577 U. S. ___, ___ (2015) (per curiam) (slip op., at 5)
(internal quotation marks omitted). Use of excessive force
is an area of the law “in which the result depends very
much on the facts of each case,” and thus police officers
are entitled to qualified immunity unless existing prece-
dent “squarely governs” the specific facts at issue. Id., at
___ (slip op., at 6) (internal quotation marks omitted and
emphasis deleted). Precedent involving similar facts can
help move a case beyond the otherwise “hazy border be-
tween excessive and acceptable force” and thereby provide
an officer notice that a specific use of force is unlaw-
ful. Id., at ___ (slip op., at 12) (internal quotation marks
omitted).
“Of course, general statements of the law are not inher-
ently incapable of giving fair and clear warning to offic-
ers.” White, 580 U. S., at ___ (slip op., at 7) (internal
quotation marks omitted). But the general rules set forth
in “Garner and Graham do not by themselves create clearly
established law outside an ‘obvious case.’ ” Ibid. Where
constitutional guidelines seem inapplicable or too remote,
it does not suffice for a court simply to state that an officer
may not use unreasonable and excessive force, deny quali-
fied immunity, and then remit the case for a trial on the
question of reasonableness. An officer “cannot be said to
have violated a clearly established right unless the right’s
contours were sufficiently definite that any reasonable
official in the defendant’s shoes would have understood
that he was violating it.” Plumhoff v. Rickard, 572 U. S.
___, ___ (2014) (slip op., at 12). That is a necessary part of
the qualified-immunity standard, and it is a part of the
standard that the Court of Appeals here failed to imple-
6 KISELA v. HUGHES
Per Curiam
ment in a correct way.
Kisela says he shot Hughes because, although the offic-
ers themselves were in no apparent danger, he believed
she was a threat to Chadwick. Kisela had mere seconds to
assess the potential danger to Chadwick. He was con-
fronted with a woman who had just been seen hacking a
tree with a large kitchen knife and whose behavior was
erratic enough to cause a concerned bystander to call 911
and then flag down Kisela and Garcia. Kisela was sepa-
rated from Hughes and Chadwick by a chain-link fence;
Hughes had moved to within a few feet of Chadwick; and
she failed to acknowledge at least two commands to drop
the knife. Those commands were loud enough that Chad-
wick, who was standing next to Hughes, heard them. This
is far from an obvious case in which any competent officer
would have known that shooting Hughes to protect Chad-
wick would violate the Fourth Amendment.
The Court of Appeals made additional errors in conclud-
ing that its own precedent clearly established that Kisela
used excessive force. To begin with, “even if a controlling
circuit precedent could constitute clearly established law
in these circumstances, it does not do so here.” Sheehan,
supra, at ___ (slip op., at 13). In fact, the most analogous
Circuit precedent favors Kisela. See Blanford v. Sacra-
mento County, 406 F.3d 1110 (CA9 2005). In Blanford,
the police responded to a report that a man was walking
through a residential neighborhood carrying a sword and
acting in an erratic manner. Id., at 1112. There, as here,
the police shot the man after he refused their commands
to drop his weapon (there, as here, the man might not
have heard the commands). Id., at 1113. There, as here,
the police believed (perhaps mistakenly), that the man
posed an immediate threat to others. Ibid. There, the
Court of Appeals determined that the use of deadly force
did not violate the Fourth Amendment. Id., at 1119.
Based on that decision, a reasonable officer could have
Cite as: 584 U. S. ____ (2018) 7
Per Curiam
believed the same thing was true in the instant case.
In contrast, not one of the decisions relied on by the
Court of Appeals—Deorle v. Rutherford, 272 F.3d 1272
(CA9 2001), Glenn v. Washington County, 673 F.3d 864
(CA9 2011), and Harris v. Roderick, 126 F.3d 1189 (CA9
1997)—supports denying Kisela qualified immunity. As
for Deorle, this Court has already instructed the Court of
Appeals not to read its decision in that case too broadly in
deciding whether a new set of facts is governed by clearly
established law. Sheehan, 572 U. S., at ___–___ (slip op.,
at 13–14). Deorle involved a police officer who shot an
unarmed man in the face, without warning, even though
the officer had a clear line of retreat; there were no by-
standers nearby; the man had been “physically compliant
and generally followed all the officers’ instructions”; and
he had been under police observation for roughly 40
minutes. 272 F.3d, at 1276, 1281–1282. In this case,
by contrast, Hughes was armed with a large knife; was
within striking distance of Chadwick; ignored the officers’
orders to drop the weapon; and the situation unfolded in
less than a minute. “Whatever the merits of the decision
in Deorle, the differences between that case and the case
before us leap from the page.” Sheehan, supra, at ___ (slip
op., at 14).
Glenn, which the panel described as “[t]he most analo-
gous Ninth Circuit case,” 862 F.3d, at 783, was decided
after the shooting at issue here. Thus, Glenn “could not
have given fair notice to [Kisela]” because a reasonable
officer is not required to foresee judicial decisions that do
not yet exist in instances where the requirements of the
Fourth Amendment are far from obvious. Brosseau, 543
U.S., at 200, n. 4. Glenn was therefore “of no use in the
clearly established inquiry.” Brosseau, supra, at 200, n. 4.
Other judges brought this mistaken or misleading citation
to the panel’s attention while Kisela’s petition for rehear-
ing en banc was pending before the Court of Appeals. 862
8 KISELA v. HUGHES
Per Curiam
F.3d, at 795, n. 2 (Ikuta, J., dissenting from denial of
rehearing en banc). The panel then amended its opinion,
but nevertheless still attempted to “rely on Glenn as illus-
trative, not as indicative of the clearly established law in
2010.” Id., at 784, n. 2 (majority opinion). The panel
failed to explain the difference between “illustrative” and
“indicative” precedent, and none is apparent.
The amended opinion also asserted, for the first time
and without explanation, that the Court of Appeals’ deci-
sion in Harris clearly established that the shooting here
was unconstitutional. Id., at 785. The new mention of
Harris replaced a reference in the panel’s first opinion to
Glenn—the case that postdated the shooting at issue here.
Compare 841 F.3d 1081, 1090 (CA9 2016) (“As indicated
by Glenn and Deorle, . . . that right was clearly estab-
lished”), with 862 F.3d, at 785 (“As indicated by Deorle
and Harris, . . . that right was clearly established”).
The panel’s reliance on Harris “does not pass the
straight-face test.” 862 F.3d, at 797 (opinion of Ikuta, J.).
In Harris, the Court of Appeals determined that an FBI
sniper, who was positioned safely on a hilltop, used exces-
sive force when he shot a man in the back while the man
was retreating to a cabin during what has been referred to
as the Ruby Ridge standoff. 126 F.3d, at 1202–1203.
Suffice it to say, a reasonable police officer could miss the
connection between the situation confronting the sniper at
Ruby Ridge and the situation confronting Kisela in
Hughes’ front yard.
For these reasons, the petition for certiorari is granted;
the judgment of the Court of Appeals is reversed; and the
case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
Cite as: 584 U. S. ____ (2018) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
ANDREW KISELA v. AMY HUGHES
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 17–467. Decided April 2, 2018
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG
joins, dissenting.
Officer Andrew Kisela shot Amy Hughes while she was
speaking with her roommate, Sharon Chadwick, outside of
their home. The record, properly construed at this stage,
shows that at the time of the shooting: Hughes stood
stationary about six feet away from Chadwick, appeared
“composed and content,” Appellant’s Excerpts of Record
109 (Record), and held a kitchen knife down at her side
with the blade facing away from Chadwick. Hughes was
nowhere near the officers, had committed no illegal act,
was suspected of no crime, and did not raise the knife in
the direction of Chadwick or anyone else. Faced with
these facts, the two other responding officers held their
fire, and one testified that he “wanted to continue trying
verbal command[s] and see if that would work.” Id., at
120. But not Kisela. He thought it necessary to use deadly
force, and so, without giving a warning that he would
open fire, he shot Hughes four times, leaving her seriously
injured.
If this account of Kisela’s conduct sounds unreasonable,
that is because it was. And yet, the Court today insulates
that conduct from liability under the doctrine of qualified
immunity, holding that Kisela violated no “clearly estab­
lished” law. See ante, at 5–6. I disagree. Viewing the
facts in the light most favorable to Hughes, as the Court
must at summary judgment, a jury could find that Kisela
violated Hughes’ clearly established Fourth Amendment
rights by needlessly resorting to lethal force. In holding
2 KISELA v. HUGHES
SOTOMAYOR, J., dissenting
otherwise, the Court misapprehends the facts and misap­
plies the law, effectively treating qualified immunity as an
absolute shield. I therefore respectfully dissent.
I
This case arrives at our doorstep on summary judgment,
so we must “view the evidence . . . in the light most favor­
able to” Hughes, the nonmovant, “with respect to the
central facts of this case.” Tolan v. Cotton, 572 U. S. ___,
___ (2014) (per curiam) (slip op., at 8). The majority pur­
ports to honor this well-settled principle, but its efforts fall
short. Although the majority sets forth most of the rele­
vant events that transpired, it conspicuously omits several
critical facts and draws premature inferences that bear on
the qualified-immunity inquiry. Those errors are fatal to
its analysis, because properly construing all of the facts in
the light most favorable to Hughes, and drawing all infer­
ences in her favor, a jury could find that the following
events occurred on the day of Hughes’ encounter with the
Tucson police.
On May 21, 2010, Kisela and Officer-in-Training Alex
Garcia received a “ ‘check welfare’ ” call about a woman
chopping away at a tree with a knife. 862 F.3d 775, 778
(CA9 2016). They responded to the scene, where they
were informed by the person who had placed the call (not
Chadwick) that the woman with the knife had been acting
“erratically.” Ibid. A third officer, Lindsay Kunz, later
joined the scene. The officers observed Hughes, who
matched the description given to the officers of the woman
alleged to have been cutting the tree, emerge from a house
with a kitchen knife in her hand. Hughes exited the front
door and approached Chadwick, who was standing outside
in the driveway.
Hughes then stopped about six feet from Chadwick,
holding the kitchen knife down at her side with the blade
pointed away from Chadwick. Hughes and Chadwick
Cite as: 584 U. S. ____ (2018) 3
SOTOMAYOR, J., dissenting
conversed with one another; Hughes appeared “composed
and content,” Record 109, and did not look angry. See 862
F.3d, at 778. At no point during this exchange did
Hughes raise the kitchen knife or verbally threaten to
harm Chadwick or the officers. Chadwick later averred
that, during the incident, she was never in fear of Hughes
and “was not the least bit threatened by the fact that
[Hughes] had a knife in her hand” and that Hughes “never
acted in a threatening manner.” Record 110–111. The
officers did not observe Hughes commit any crime, nor was
Hughes suspected of committing one. See 862 F.3d, at
780.
Nevertheless, the officers hastily drew their guns and
ordered Hughes to drop the knife. The officers gave that
order twice, but the commands came “in quick succession.”
Id., at 778. The evidence in the record suggests that
Hughes may not have heard or understood the officers’
commands and may not have been aware of the officers’
presence at all. Record 109–110, 195, 323–324 (Officer
Kunz’s testimony that “it seemed as though [Hughes]
didn’t even know we were there,” and “[i]t was like she
didn’t hear us almost”); id., at 304 (Officer Garcia’s testi­
mony that Hughes acted “almost as if we weren’t there”).
Although the officers were in uniform, they never verbally
identified themselves as law enforcement officers.
Kisela did not wait for Hughes to register, much less
respond to, the officers’ rushed commands. Instead, Kisela
immediately and unilaterally escalated the situation.
Without giving any advance warning that he would shoot,
and without attempting less dangerous methods to deesca­
late the situation, he dropped to the ground and shot four
times at Hughes (who was stationary) through a chain-
link fence. After being shot, Hughes fell to the ground,
screaming and bleeding from her wounds. She looked at
the officers and asked, “ ‘Why’d you shoot me?’ ” Id., at
308. Hughes was immediately transported to the hospital,
4 KISELA v. HUGHES
SOTOMAYOR, J., dissenting
where she required treatment for her injuries. Kisela
alone resorted to deadly force in this case. Confronted
with the same circumstances as Kisela, neither of his
fellow officers took that drastic measure.
II
Police officers are not entitled to qualified immunity if
“(1) they violated a federal statutory or constitutional
right, and (2) the unlawfulness of their conduct was ‘clearly
established at the time.’ ” District of Columbia v. Wesby,
583 U. S. ___, ___ (2018) (slip op., at 13) (quoting Reichle v.
Howards, 566 U.S. 658, 664 (2012)). Faithfully applying
that well-settled standard, the Ninth Circuit held that a
jury could find that Kisela violated Hughes’ clearly estab­
lished Fourth Amendment rights. That conclusion was
correct.
A
I begin with the first step of the qualified-immunity
inquiry: whether there was a violation of a constitutional
right. Hughes alleges that Kisela violated her Fourth
Amendment rights by deploying excessive force against
her. In assessing such a claim, courts must 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). That inquiry “re­
quires careful attention to the facts and circumstances of
each particular case, including the severity of the crime at
issue, whether the suspect poses an immediate threat to
the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest by
flight.” Id., at 396; see also Tennessee v. Garner, 471 U.S.
1, 11 (1985). All of those factors (and others) support the
Ninth Circuit’s conclusion that a jury could find that
Kisela’s use of deadly force was objectively unreasonable.
862 F.3d, at 779–782. Indeed, the panel’s resolution of
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SOTOMAYOR, J., dissenting
this question was so convincing that not a single judge on
the Ninth Circuit, including the seven who dissented from
denial of rehearing en banc, expressly disputed that con­
clusion. See id., at 791–799 (opinion of Ikuta, J.). Neither
does the majority here, which simply assumes without
deciding that “a Fourth Amendment violation occurred.”
Ante, at 4.
First, Hughes committed no crime and was not suspected
of committing a crime. The officers were responding to a
“check welfare” call, which reported no criminal activity,
and the officers did not observe any illegal activity while
at the scene. The mere fact that Hughes held a kitchen
knife down at her side with the blade pointed away from
Chadwick hardly elevates the situation to one that justi­
fies deadly force.
Second, a jury could reasonably conclude that Hughes
presented no immediate or objective threat to Chadwick or
the other officers. It is true that Kisela had received a
report that a woman matching Hughes’ description had
been acting erratically. But the police officers themselves
never witnessed any erratic conduct. Instead, when
viewed in the light most favorable to Hughes, the record
evidence of what the police encountered paints a calmer
picture. It shows that Hughes was several feet from
Chadwick and even farther from the officers, she never
made any aggressive or threatening movements, and she
appeared “composed and content” during the brief
encounter.
Third, Hughes did not resist or evade arrest. Based on
this record, there is significant doubt as to whether she
was aware of the officers’ presence at all, and evidence
suggests that Hughes did not hear the officers’ swift com­
mands to drop the knife.
Finally, the record suggests that Kisela could have, but
failed to, use less intrusive means before deploying deadly
force. 862 F.3d, at 781. For instance, Hughes submitted
6 KISELA v. HUGHES
SOTOMAYOR, J., dissenting
expert testimony concluding that Kisela should have used
his Taser and that shooting his gun through the fence was
dangerous because a bullet could have fragmented against
the fence and hit Chadwick or his fellow officers. Ibid.; see
also Bryan v. MacPherson, 630 F.3d 805, 831 (CA9 2010)
(noting that “police are required to consider what other
tactics if any were available to effect the arrest” and
whether there are “clear, reasonable, and less intrusive
alternatives” (internal quotation marks and alteration
omitted)). Consistent with that assessment, the other two
officers on the scene declined to fire at Hughes, and one of
them explained that he was inclined to use “some of the
lesser means” than shooting, including verbal commands,
because he believed there was time “[t]o try to talk
[Hughes] down.” Record 120–121. That two officers on
the scene, presented with the same circumstances as
Kisela, did not use deadly force reveals just how unneces­
sary and unreasonable it was for Kisela to fire four shots
at Hughes. See Plumhoff v. Rickard, 572 U. S. ___, ___
(2014) (slip op., at 8) (“We analyze [the objective reason-
ableness] question from the perspective of a reasonable
officer on the scene” (internal quotation marks omitted)).
Taken together, the foregoing facts would permit a jury
to conclude that Kisela acted outside the bounds of the
Fourth Amendment by shooting Hughes four times.
B
Rather than defend the reasonableness of Kisela’s con­
duct, the majority sidesteps the inquiry altogether and
focuses instead on the “clearly established” prong of the
qualified-immunity analysis. Ante, at 4. To be “ ‘clearly
established’ . . . [t]he contours of the right must be suffi­
ciently clear that a reasonable official would understand
that what he is doing violates that right.” Anderson v.
Creighton, 483 U.S. 635, 640 (1987). That standard is not
nearly as onerous as the majority makes it out to be. As
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SOTOMAYOR, J., dissenting
even the majority must acknowledge, ante, at 4, this Court
has long rejected the notion that “an official action is
protected by qualified immunity unless the very action in
question has previously been held unlawful,” Anderson,
483 U.S., at 640. “[O]fficials can still be on notice that
their conduct violates established law even in novel factual
circumstances.” Hope v. Pelzer, 536 U.S. 730, 741 (2002).
At its core, then, the “clearly established” inquiry boils
down to whether Kisela had “fair notice” that he acted
unconstitutionally. See ibid.; Brosseau v. Haugen, 543
U.S. 194, 198 (2004) (per curiam) (“[T]he focus” of quali­
fied immunity “is on whether the officer had fair notice
that her conduct was unlawful”).
The answer to that question is yes. This Court’s prece­
dents make clear that a police officer may only deploy
deadly force against an individual if the officer “has prob­
able cause to believe that the [person] poses a threat of
serious physical harm, either to the officer or to others.”
Garner, 471 U.S., at 11; see also Graham, 490 U.S., at
397. It is equally well established that any use of lethal
force must be justified by some legitimate governmental
interest. See Scott v. Harris, 550 U.S. 372, 383 (2007);
Mullenix v. Luna, 577 U. S. ___, ___–___ (2015)
(SOTOMAYOR, J., dissenting) (slip op., at 2–3). Consistent
with those clearly established principles, and contrary to
the majority’s conclusion, Ninth Circuit precedent predat­
ing these events further confirms that Kisela’s conduct
was clearly unreasonable. See Brosseau, 543 U.S., at 199
(“[A] body of relevant case law” may “ ‘clearly establish’ ”
the violation of a constitutional right); Ashcroft v. al-Kidd,
563 U.S. 731, 746 (2011) (KENNEDY, J., concurring)
(“[Q]ualified immunity is lost when plaintiffs point either
to ‘cases of controlling authority in their jurisdiction at the
time of the incident’ or to ‘a consensus of cases of persua­
sive authority such that a reasonable officer could not
have believed that his actions were lawful’ ” (quoting
8 KISELA v. HUGHES
SOTOMAYOR, J., dissenting
Wilson v. Layne, 526 U.S. 603, 617 (1999))). Because
Kisela plainly lacked any legitimate interest justifying the
use of deadly force against a woman who posed no objec­
tive threat of harm to officers or others, had committed no
crime, and appeared calm and collected during the police
encounter, he was not entitled to qualified immunity.
The Ninth Circuit’s opinion in Deorle v. Rutherford, 272
F.3d 1272 (2001) proves the point. In that case, the police
encountered a man who had reportedly been acting “errat­
ically.” Id., at 1276. The man was “verbally abusive,”
shouted “ ‘kill me’ ” at the officers, screamed that he would
“ ‘kick [the] ass’ ” of one of the officers, and “brandish[ed] a
hatchet at a police officer,” ultimately throwing it “into a
clump of trees when told to put it down.” Id., at 1276–
1277. The officers also observed the man carrying an
unloaded crossbow in one hand and what appeared to be
“a can or a bottle of lighter fluid in the other.” Id., at
1277. The man discarded the crossbow when instructed to
do so by the police and then steadily walked toward one of
the officers. Ibid. In response, that officer, without giving
a warning, shot the man in the face with beanbag rounds.
Id., at 1278. The man suffered serious injuries, including
multiple fractures to his cranium and the loss of his left
eye. Ibid.
The Ninth Circuit denied qualified immunity to the
officer, concluding that his use of force was objectively
unreasonable under clearly established law. Id., at 1285–
1286. The court held, “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, poses
no risk of flight, and presents no objectively reasonable
threat to the safety of the officer or other individuals.” Id.,
at 1285.
The same holds true here. Like the man in Deorle,
Cite as: 584 U. S. ____ (2018) 9
SOTOMAYOR, J., dissenting
Hughes committed no serious crime, had been given no
warning of the imminent use of force, posed no risk of
flight, and presented no objectively reasonable threat to
the safety of officers or others. In fact, Hughes presented
even less of a danger than the man in Deorle, for, unlike
him, she did not threaten to “kick [their] ass,” did not
appear agitated, and did not raise her kitchen knife or
make any aggressive gestures toward the police or Chad­
wick. If the police officers acted unreasonably in shooting
the agitated, screaming man in Deorle with beanbag bul­
lets, a fortiori Kisela acted unreasonably in shooting the
calm-looking, stationary Hughes with real bullets. In my
view, Deorle and the precedent it cites place the unlawful­
ness of Kisela’s conduct “ ‘beyond debate.’ ” Wesby, 583
U. S., at ___ (slip op., at 15).
The majority strains mightily to distinguish Deorle, to
no avail. It asserts, for instance, that, unlike the man in
Deorle, Hughes was “armed with a large knife.” Ante, at 7.
But that is not a fair characterization of the record, par­
ticularly at this procedural juncture. Hughes was not
“armed” with a knife. She was holding “a kitchen knife—
an everyday household item which can be used as a
weapon but ordinarily is a tool for safe, benign purposes”—
down at her side with the blade pointed away from Chad­
wick. 862 F.3d, at 788 (Berzon, J., concurring in denial of
rehearing en banc). Hughes also spoke calmly with
Chadwick during the events at issue, did not raise the
knife, and made no other aggressive movements, under­
mining any suggestion that she was a threat to Chadwick
or anyone else. Similarly, the majority asserts that
Hughes was “within striking distance” of Chadwick, ante,
at 7, but that stretches the facts and contravenes this
Court’s repeated admonition that inferences must be
drawn in the exact opposite direction, i.e., in favor of
Hughes. See Tolan, 572 U. S., at ___ (slip op., at 8). The
facts, properly viewed, show that, when she was shot,
10 KISELA v. HUGHES
SOTOMAYOR, J., dissenting
Hughes had stopped and stood still about six feet away
from Chadwick. Whether Hughes could “strik[e]” Chad­
wick from that particular distance, even though the kitchen
knife was held down at her side, is an inference that
should be drawn by the jury, not this Court.
The majority next posits that Hughes, unlike the man in
Deorle, “ignored the officers’ orders to drop the” kitchen
knife. Ante, at 7. Yet again, the majority here draws
inferences in favor of Kisela, instead of Hughes. The
available evidence would allow a reasonable jury to find
that Hughes did not hear or register the officers’ swift
commands and that Kisela, like his fellow officers on the
scene, should have realized that as well. See supra, at 3–
4. Accordingly, at least at the summary-judgment stage,
the Court is mistaken in distinguishing Deorle based on
Hughes’ ostensible disobedience to the officers’ directives.
The majority also implies that Deorle is distinguishable
because the police in that case observed the man over a
40-minute period, whereas the situation here unfolded in
less than a minute. Ante, at 7. But that fact favors
Hughes, not Kisela. The only reason this case unfolded in
such an abrupt timeframe is because Kisela, unlike his
fellow officer, showed no interest in trying to talk further
to Hughes or use a “lesser means” of force. See Record
120–121, 304.
Finally, the majority passingly notes that “this Court
has already instructed the Court of Appeals not to read
[Deorle] too broadly.” Ante, at 7 (citing City and County of
San Francisco v. Sheehan, 575 U. S. ___, ___–___ (2015)
(slip op., at 13–14)). But the Court in Sheehan concluded
that Deorle was plainly distinguishable because, unlike in
Deorle, the officers there confronted a woman who “was
dangerous, recalcitrant, law-breaking, and out of sight.”
575 U. S., at ___ (slip op., at 14). As explained above,
however, Hughes was none of those things: She did not
threaten or endanger the officers or Chadwick, she did not
Cite as: 584 U. S. ____ (2018) 11
SOTOMAYOR, J., dissenting
break any laws, and she was visible to the officers on the
scene. See supra, at 2–4. Thus, there simply is no basis
for the Court’s assertion that “ ‘the differences between
[Deorle] and the case before us leap from the page.’ ” Ante,
at 7 (quoting Sheehan, 575 U. S., at ___ (slip op., at 14)).
Deorle, moreover, is not the only case that provided fair
notice to Kisela that shooting Hughes under these circum­
stances was unreasonable. For instance, the Ninth Circuit
has held that the use of deadly force against an individual
holding a semiautomatic rifle was unconstitutional where
the individual “did not point the gun at the officers and
apparently was not facing them when they shot him the
first time.” Curnow v. Ridgecrest Police, 952 F.2d 321,
325 (1991). Similarly, in Harris v. Roderick, 126 F.3d
1189 (1997), the Ninth Circuit held that the officer unrea­
sonably used deadly force against a man who, although
armed, made “no threatening movement” or “aggressive
move of any kind.” Id., at 1203.* Both Curnow and Har-
ris establish that, where, as here, an individual with a
weapon poses no objective and immediate threat to officers
or third parties, law enforcement cannot resort to exces­
sive force. See Harris, 126 F.3d, at 1201 (“Law enforce­
ment officers may not shoot to kill unless, at a minimum,
the suspect presents an immediate threat to the officers,
or is fleeing and his escape will result in a serious threat
of injury to persons”).
If all that were not enough, decisions from several other
Circuits illustrate that the Fourth Amendment clearly
——————
* The majority insists that reliance on Harris fails the “ ‘straight-face
test’ ” because Harris involved an FBI sniper on a hilltop who shot a
man while he was retreating to a cabin during a standoff. Ante, at 8
(quoting 862 F.3d, at 797 (opinion of Ikuta, J.)). If anything, though,
the context of Harris could be viewed as more dangerous than the
context here because, unlike Hughes, the suspect in Harris had en­
gaged in a firefight with other officers the previous day, during which
an officer was shot. See 126 F.3d, at 1193–1194.
12 KISELA v. HUGHES
SOTOMAYOR, J., dissenting
forbids the use of deadly force against a person who is
merely holding a knife but not threatening anyone with it.
See, e.g., McKinney v. DeKalb County, 997 F.2d 1440,
1442 (CA11 1993) (affirming denial of summary judgment
based on qualified immunity to officer who shot a person
holding a butcher knife in one hand and a foot-long stick
in the other, where the person threw the stick and began
to rise from his seated position); Reyes v. Bridgwater, 362
Fed. Appx. 403, 404–405 (CA5 2010) (reversing grant of
summary judgment based on qualified immunity to officer
who shot a person holding a kitchen knife in his apart­
ment entryway, even though he refused to follow the
officer’s multiple commands to drop the knife); Duong v.
Telford Borough, 186 Fed. Appx. 214, 215, 217 (CA3 2006)
(affirming denial of summary judgment based on qualified
immunity to officer who shot a person holding a knife
because a reasonable jury could conclude that the plaintiff
was sitting down and pointing the knife away from the
officer at the time he was shot and had not received any
warnings to drop the knife).
Against this wall of case law, the majority points to a
single Ninth Circuit decision, Blanford v. Sacramento
County, 406 F.3d 1110 (2005), as proof that Kisela rea­
sonably could have believed that Hughes posed an imme­
diate danger. But Blanford involved far different circum­
stances. In that case, officers observed a man walking
through a neighborhood brandishing a 2½-foot cavalry
sword; officers commanded the man to drop the sword,
identified themselves as police, and warned “ ‘We’ll shoot.’ ”
Id., at 1112–1113. The man responded with “a loud growl­
ing or roaring sound,” which increased the officers’ concern
that he posed a risk of harm. Id., at 1113. In an effort to
“evade [police] authority,” the man, while still wielding the
sword, tried to enter a home, thus prompting officers to
open fire to protect anyone who might be inside. Id., at
1113, 1118. The Ninth Circuit concluded that use of deadly
Cite as: 584 U. S. ____ (2018) 13
SOTOMAYOR, J., dissenting
force was reasonable in those circumstances. See id., at
1119.
This case differs significantly from Blanford in several
key respects. Unlike the man in Blanford, Hughes held a
kitchen knife down by her side, as compared to a 2½-foot
sword; she appeared calm and collected, and did not make
threatening noises or gestures toward the officers on the
scene; she stood still in front of her own home, and was not
wandering about the neighborhood, evading law enforce­
ment, or attempting to enter another house. Moreover,
unlike the officers in Blanford, Kisela never verbally
identified himself as an officer and never warned Hughes
that he was going to shoot before he did so. Given these
significant differences, no reasonable officer would believe
that Blanford justified Kisela’s conduct. The majority’s
conclusion to the contrary is fanciful.
* * *
In sum, precedent existing at the time of the shooting
clearly established the unconstitutionality of Kisela’s
conduct. 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.
Hope, 536 U.S., at 739. It is enough that governing law
places “the constitutionality of the officer’s conduct beyond
debate.” Wesby, 583 U. S., at ___ (slip op., at 13) (internal
quotation marks omitted). Because, taking the facts in the
light most favorable to Hughes, it is “beyond debate” that
Kisela’s use of deadly force was objectively unreasonable,
he was not entitled to summary judgment on the basis of
qualified immunity.
III
For the foregoing reasons, it is clear to me that the
14 KISELA v. HUGHES
SOTOMAYOR, J., dissenting
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 re­
versal.” 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 de­
cides 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 re­
sources” in qualified-immunity cases. Salazar-Limon v.
Houston, 581 U. S. ___, ___ (2017) (SOTOMAYOR, J., dis­
senting from denial of certiorari) (slip op., at 8). As I have
previously noted, this Court routinely displays an un­
flinching willingness “to summarily reverse courts for
wrongly denying officers the protection of qualified im­
munity” 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 quali­
fied 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
Cite as: 584 U. S. ____ (2018) 15
SOTOMAYOR, J., dissenting
and Enforcement of Constitutional Rights and Some Par­
ticularly Unfortunate Consequences, 113 Mich. L. Rev.
1219, 1244–1250 (2015). Such a one-sided approach to
qualified immunity transforms the doctrine into an abso­
lute shield for law enforcement officers, gutting the deter­
rent effect of the Fourth Amendment.
The majority today exacerbates that troubling asym­
metry. 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 unreason­
able conduct will go unpunished. Because there is noth-
ing right or just under the law about this, I respectfully
dissent.