584 U.S. ____ (2018)
AMY HUGHES ANDREW KISELA
PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
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.
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 another 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 erratically. About the same time, a
third police officer, Lindsay Kunz, arrived on her bicycle.
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 separated 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 of the woman who had been seen
hacking a tree. Hughes walked toward Chadwick and stopped no
more than six feet from her.
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
paramedics, 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.
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. Chadwick 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 Record 108.
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).
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.
of the first cases on this general subject, Tennessee 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 probable 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.
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
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." "The
'reasonableness' of a particular use of force must be
judged from the perspective of a reasonable officer on the
scene, rather than with the 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 judgments-in circumstances
that are tense, uncertain, and rapidly evolving-about the
amount of force that is necessary in a particular
situation." Id., at 396-397.
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
immunity attaches when an official's conduct does not
violate clearly established statutory or constitutional
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).
"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 particular-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.
"[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 precedent "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 between
excessive and acceptable force" and thereby provide an
officer notice that a specific use of force is unlawful.
Id., at__(slip op., at 12) (internal quotation marks
course, general statements of the law are not inherently
incapable of giving fair and clear warning to officers."
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 qualified
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." Plumhoffv. Richard,
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-
ment in a correct way.
says he shot Hughes because, although the officers 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 confronted 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 separated 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 Chadwick, 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 Chadwick would violate the
Court of Appeals made additional errors in concluding 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. Sacramento 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 believed the same
thing was true in the instant case.
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 bystanders 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 ...