In Hughes v. Kisela, published November 28, 2016, the 9th Circuit Court of Appeals reversed summary judgment for a police officer in a 42 U.S.C. section 1983 excessive force case. The officer and other officers responded to a "check welfare" call about a woman who was hacking at a tree with a large knife. They were told at the scene that the woman was acting erratically. Soon after the officers arrived, the plaintiff emerged from her house carrying a kitchen knife. The knife was at her side, blade pointed backwards. A neighbor standing outside her house declared that the plaintiff appeared calm and contented. The plaintiff walked toward the neighbor. The neighbor declared that at the time she did not feel any fear. The officers shouted for the plaintiff to drop the knife. They shouted at least twice, and perhaps more. She did not drop the knife, but continued moving toward the neighbor. The shooting officer stated that the plaintiff raised her knife; the other officers told investigators they did not see her raise the knife. A chain link fence prevented the officers from reaching the woman. The defendant officer dropped and fired at the plaintiff under the fence, hitting her four times. The plaintiff fell at the neighbor's feet. The wounds were not fatal. The neighbor believed that the plaintiff was bipolar and did not know what was happening at the time. The district court concluded that the officer's actions were reasonable and that he was entitled to qualified immunity.
The appellate panel concluded that issues of fact barred summary judgment on either ground. The facts concerning the severity of the threat, the adequacy of the officers' warnings, and the potential for less intrusive means of causing the plaintiff to give up the knife were in dispute. If those questions were resolved in the plaintiff's favor, the officer's actions clearly violated the plaintiff's constitutional rights. The factual issues therefore prevented summary judgment based on qualified immunity.