and Submitted September 12, 2016
from the United States District Court for the District of
Arizona Frank R. Zapata, District Judge, Presiding D.C. No.
Rabago (argued), Stacy Scheff, and Norma Kristine Rabago,
Vince Rabago Law Office PLC, Tucson, Arizona, for
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.
AND AMENDED OPINION
Denying Petition for Rehearing En Banc;
in Order Denying Petition for Rehearing En Banc;
to Order Denying Petition for Rehearing En Banc; Opinion by
panel amended the opinion, filed on November 28, 2016, and on
behalf of the court denied the petition for rehearing en
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.
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
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
opinion filed November 28, 2016, is amended as follows:
page 14 of the slip opinion, add "(en banc)" after
the citation "Mattos v. Agarano, 661 F.3d 433,
442 (9th Cir. 2011)."
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
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.
page 17 of the slip opinion, delete the "Glenn
and Deorle" and replace it with
"Deorle and Harris."
Petition for Panel Rehearing or Petition for Rehearing en
Banc will be entertained.
Gould and Berzon voted to deny the petition for rehearing en
banc, and Judge Sessions so recommended.
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.
petition for rehearing en banc is DENIED.
BERZON, Circuit Judge, with whom GOULD, Circuit Judge, joins,
concurring in the denial of rehearing en banc [***]
separately to address the arguments in Judge Ikuta's
dissent from the denial of rehearing en banc.
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.
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
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
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,
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.
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. 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.
conclusion was correct.
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,
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.
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.
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.
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.
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. Nevertheless, within seconds
after Hughes stepped out of her house, Kisela shot her four
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 ...