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Hughes v. Kisela

United States Court of Appeals, Ninth Circuit

June 27, 2017

Amy Hughes, Plaintiff-Appellant,
Andrew Kisela, Corporal, 0203; individually and in his official capacity, Defendant-Appellee.

          Argued and Submitted September 12, 2016

         Appeal from the United States District Court for the District of Arizona Frank R. Zapata, District Judge, Presiding D.C. No. 4:11-cv-00366-FRZ

          Vince Rabago (argued), Stacy Scheff, and Norma Kristine Rabago, Vince Rabago Law Office PLC, Tucson, Arizona, for Plaintiff-Appellant.

          Robert R. McCright (argued), Assistant Attorney General; Mark Brnovich, Arizona Attorney General; Office of the Attorney General, Tucson, Arizona; for Defendant-Appellee.

          Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and William K. Sessions III, [*] District Judge.


         Order Amending Opinion;

         Order Denying Petition for Rehearing En Banc;

         Concurrence in Order Denying Petition for Rehearing En Banc;

         Dissent to Order Denying Petition for Rehearing En Banc; Opinion by Judge Sessions


         Civil Rights

         The panel amended the opinion, filed on November 28, 2016, and on behalf of the court denied the petition for rehearing en banc.

         In the amended opinion, 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.

         Judge Berzon, joined by Judge Gould, concurred in the denial of rehearing en banc, and wrote separately to address arguments in Judge Ikuta's dissent from the denial of rehearing en banc.

         Judge Ikuta, joined by Judges Kozinski, Tallman, Bybee, Callahan, Bea, and N.R. Smith, dissented from the denial of rehearing en banc because the panel opinion took a path contrary to the Supreme Court's direction on the proper application of the qualified immunity doctrine in the Fourth Amendment context.


         The opinion filed November 28, 2016, is amended as follows:

         1. At page 14 of the slip opinion, add "(en banc)" after the citation "Mattos v. Agarano, 661 F.3d 433, 442 (9th Cir. 2011)."

         2. At page 15 of the slip opinion, add a footnote after "this Court remanded Glenn for a jury trial." The footnote in the amended opinion should state:

Glenn was decided on summary judgment after the incident that gave rise to this case. It concerned a shooting that occurred in 2006. The panel in Glenn concluded that "resolution of . . . [genuine factual] issues is crucial to a proper determination of the officers' entitlement to qualified immunity, " and remanded the question whether the right was clearly established at the time of the alleged misconduct, to be decided "after the material factual disputes have been decided by the jury." 673 F.3d at 871. Although the panel stated that it was "[expressing] no opinion on the second part of the qualified immunity analysis, " the remand for trial would have been improper were the officers entitled to qualified immunity on the facts most favorable to the plaintiff. See Mattos, 661 F.3d at 445-48, 452. We therefore read Glenn as at least suggestive of the state of the clearly established law at the time it was decided.
In any event, we rely on Glenn as illustrative, not as indicative of the clearly established law in 2010. See Berzon, J., concurring in the denial of rehearing en banc, at 9-12.

         3. At page 17 of the slip opinion, delete the "Glenn and Deorle" and replace it with "Deorle and Harris."

         No new Petition for Panel Rehearing or Petition for Rehearing en Banc will be entertained.


         Judges Gould and Berzon voted to deny the petition for rehearing en banc, and Judge Sessions so recommended.

         The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35.

         The petition for rehearing en banc is DENIED.

          BERZON, Circuit Judge, with whom GOULD, Circuit Judge, joins, concurring in the denial of rehearing en banc [***]

         I write separately to address the arguments in Judge Ikuta's dissent from the denial of rehearing en banc.

         The dissent's principal complaint is that the panel characterized the relevant constitutional right at too high a level of generality. That is incorrect. The dissent proposes that the panel failed adequately to consider the "specific context" of the circumstances facing Corporal Andrew Kisela. That is mistaken. And the dissent suggests that qualified immunity is available in an excessive force case only where there is an identical or nearly identical prior case which held that force was excessive. That understanding is directly contrary to the Supreme Court's repeated recognition that no case is likely to be directly on point factually, so the qualified immunity inquiry must be whether existing precedent places the constitutional question beyond debate.

         1. The Supreme Court has indeed advised lower courts construing claims of qualified immunity in excessive force cases "not to define clearly established law at a high level of generality." Plumhoff v. Rickard, 134 S.Ct. 2012, 2023 (2014) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). The import of that instruction is, as the Court has explained, that "doing so avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced." Id. The panel's opinion could not reasonably be characterized as avoiding that "crucial question." Nor, in defining the relevant constitutional right at issue, did the panel rely simply on the general, abstract principle set forth in Tennessee v. Garner, 471 U.S. 1 (1985), that "deadly force is only permissible where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, " as the Supreme Court has cautioned us not to do. Mullenix v. Luna, 136 S.Ct. 305, 309 (2015) (per curiam) (citation omitted). Nowhere did the panel define the relevant right as the "right to be free of excessive force, " as the dissent incorrectly asserts in its opening lines.

         Instead, the panel held that our precedents clearly established a far more specific constitutional right: that under the Fourth Amendment, a mentally disturbed individual who had committed no known crime, was not acting erratically when encountered by police, and presented no objective threat to officers or third parties may "walk down her driveway holding a knife without being shot." Hughes v. Kisela, 841 F.3d 1081, 1090 (9th Cir. 2016). Taking the facts in the light most favorable to Hughes, that is what happened in this case. On those facts, the panel held, no reasonable police officer could have thought that shooting Hughes was constitutionally permissible.

         The inverse of a "high level of generality" is not, as the dissent suggests, a previous case with facts identical those in the instant case - because, of course, no two cases are exactly alike. The Supreme Court has repeatedly stated that "[w]e do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate." Mullenix, 136 S.Ct. at 308 (quoting al-Kidd, 563 U.S. at 741); see also White v. Pauly, 137 S.Ct. 548, 551 (2017) (per curiam). Were the rule otherwise, as we have previously observed, "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 v. Rutherford, 272 F.3d 1272, 1286 (9th Cir. 2001). "If qualified immunity provided a shield in all novel factual circumstances, officials would rarely, if ever, be held accountable for their unreasonable violations of the Fourth Amendment." Mattos v. Agarano, 661 F.3d 433, 442 (9th Cir. 2011) (en banc). It is thus "clear that officials 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).

         Consider, for example, the hypothetical case of a policeman who happens upon someone standing outside a house using a kitchen knife to chop onions at a summer barbecue, while chatting amicably with another woman standing close by. The policeman draws his weapon and, twice in rapid succession, orders the individual holding the knife to drop it; when she does not immediately comply, the policeman opens fire within a few seconds and shoots the individual four times. There is no precedential case with these precise facts (although this case, when the facts are viewed in the light most favorable to Hughes, is not far off), yet our precedents as well as common sense would place beyond debate the question of whether that officer acted lawfully.

         In the absence of a precedential case with precisely the same facts as the case before us, we must compare the specific factors before the responding officers with those in other cases to determine whether those cases would have put a reasonable officer on notice that his actions were unlawful.[1] That framework is precisely the one the panel applied to Kisela's claim of qualified immunity. After conducting that inquiry, the panel concluded that this case is, given the pertinent precedents, squarely within - indeed, at the more egregious border of - the group of precedents in which excessive force was found.

         2. That conclusion was correct.

         We have held unconstitutional the use of deadly force where an individual "did not point [a] 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 (9th Cir. 1991). We have also held that deadly force is impermissible against an armed suspect "who makes no threatening movement" or "aggressive move of any kind, " even where that suspect is suspected of killing a federal agent. Harris v. Roderick, 126 F.3d 1189, 1203 (9th Cir. 1997). "Law enforcement officers may not shoot to kill unless, at a minimum, the suspect presents an immediate threat to the officer or others, or is fleeing and his escape will result in a serious threat of injury to persons." Id. at 1201 (emphasis added). We have held that a reasonable jury could find a constitutional violation, even concerning the use of nondeadly force, where an arrestee never attacked or even threatened to attack a police officer. Smith v. City of Hemet, 394 F.3d 689, 703-04 (9th Cir. 2005) (en banc). And we have held that "[e]very 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, " even where that individual had previously brandished weapons and threatened to "kick [a police officer's] ass." Deorle, 272 F.3d at 1277, 1285.

         On the other side of the ledger, we have held that it is constitutionally permissible to shoot an armed, mentally disturbed individual who makes threatening movements; commits a nonviolent crime in view of police; is warned to drop his weapon and that he will be shot if he does not comply; not only ignores those commands but apparently "flaunt[s]" them; and then attempts to enter a private residence for which he has no key. Blanford v. Sacramento Cty., 406 F.3d 1110, 1113, 1116-19 (9th Cir. 2005).

         Taken together, our precedents as of May 21, 2010 suggest several factors critical to the constitutional analysis. These include the severity of the underlying crime, if any; whether the individual against whom force is used was armed, and if so, whether her movements suggested an immediate threat; whether a warning has been issued, if practicable, and particularly whether she has been warned of the imminent use of a significant degree of force; whether she complies with such warnings, ignores them, or actively flaunts them; whether she poses a risk of flight; whether she is mentally or emotionally disturbed; and whether she makes any threatening statements. None of these factors is dispositive, but each is relevant.

         3. I turn, then, to the facts of this case taken in the light most favorable to Hughes, as we must do at the summary judgment stage. Tolan v. Cotton, 134 S.Ct. 1861, 1868 (2014) (per curiam). Kisela and two other police officers arrived at Hughes's residence in response to a "check welfare" call - not a report of a crime or a threatened crime. The call reported that a woman matching Hughes's description was seen hacking at a tree with a large knife.

         Hughes emerged from her house holding a kitchen knife - an everyday household item which can be used as a weapon but ordinarily is a tool for safe, benign purposes. Although the dissent makes much of Hughes's "reportedly erratic" behavior, Hughes's demeanor when Kisela encountered her was in fact "composed and content, " not "erratic, " as she exited her home and walked down her driveway. She engaged in conversation with another woman, Sharon Chadwick, the content of which Kisela did not hear. The only officer who did hear Hughes speak stated that she seemed "unfocused, " but was not shouting and did not appear angry.

         The police did not observe Hughes making any verbal threats toward Chadwick or the police (who were safe behind a gated fence). Nor did Hughes raise the knife from her side, or make any threatening or aggressive movements. After initially approaching Chadwick, Hughes periodically walked away from Chadwick before reapproaching. Kisela and the other officers ordered Hughes to drop the knife, but the officers received no indication that Hughes heard them, as she did not acknowledge their presence. At no time did any officer orally identify himself or herself as police (although they were in uniform), nor did they warn Hughes that they would shoot if she did not comply with their commands to drop the knife.[2] Nevertheless, within seconds after Hughes stepped out of her house, Kisela shot her four times.

         On these facts - many of which the dissent elides or ignores - no officer could have reasonably believed in light of our precedents that Hughes's conduct justified the use of lethal force. As we held in Deorle, "[e]very police officer should know" that it is objectively unreasonable to shoot an unarmed, mentally disturbed person who has been given no warning about the imminent use of serious force, poses no risk of flight, and presents no objective imminent threat to the safety of others - even where that person ...

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