In Kisela v. Hughes, published April 2, 2018, the United States Supreme Court, in a per curiam 7-2 opinion, reversed a Ninth Circuit decision that a police officer was not entitled to summary judgment on a 42 U.S.C. section 1983 claim that the officer violated the plaintiff's Fourth Amendment rights. A neighbor called 911 and reported that a woman was hacking a tree with a kitchen knife. When officers arrived, the caller flagged them down, described the woman, and reported that the woman had been acting erratically. The officers saw a woman who was separated from the officers by a chain-link fence and locked gate. They then saw the plaintiff, who matched the description of the woman with the knife, emerge from the house behind the other woman, and stand, the knife at her side, six feet from the woman. The officers drew their guns and told the plaintiff, twice, to drop the knife. The other woman told the officers and the plaintiff to take it easy. The plaintiff appeared calm, but did not drop the knife. One of the officers then dropped to the ground and shot the plaintiff, four times, through the fence. Less than a minute passed between the officers seeing the plaintiff and the shots being fired. The plaintiff survived. The three officers later said they all believed the plaintiff to be a threat to the other woman. The district court granted the shooting officer summary judgment based on qualified immunity. The Ninth Circuit reversed.
The Supreme Court held that the shooting officer was entitled to summary judgment based on qualified immunity. The Ninth Circuit's decision failed to show that the law clearly established that the defendant officer's actions, under the circumstances, would violate the Fourth Amendment. It did not identify a case that would place beyond dispute that an officer acted unreasonably in using deadly force to protect a civilian from a woman who was carrying a knife, who had used it to hack at a tree, and who had been acting erratically, where a fence separated the person with the knife and the potential victim from the police.
Justice Sotomayor, joined by Justice Ginsburg, dissented. Justice Sotomayor opined that, viewing the facts in the light most favorable to the plaintiff, it was clearly established that shooting a calm person who apparently did not hear or understand the officers' orders violated the Fourth Amendment.
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