The U.S. Supreme Court, in Kisela v. Hughes, decided April 2, again warned lower courts that they must not define “clearly established” law with a high level of generality in deciding whether police officers are entitled to qualified immunity.
Amy Hughes sued Andrew Kisela, a police officer, under Sec. 1983 for excessive use of force in violation of the Fourth Amendment.
Kisela shot Hughes after receiving a report of a woman engaging in erratic behavior with a knife.  When Kisela arrived at scene, he saw Hughes with the knife, at least twice ordered her to drop it, and fired at her when she did not.
Qualified immunity attaches when an officer’s conduct does not violate “clearly established” statutory or constitutional rights of which a reasonable person would have been aware.
The Ninth Circuit held that Kisela was not entitled to qualified immunity.
But the Supreme Court reversed, in a 7-2 per curiam opinion.
 “Although 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,” the Court said.
 “This Court has repeatedly told courts – and the Ninth Circuit in particular – not to define clearly established law at a high level of generality,” the Court said.
 “Use of excessive force is an area of 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,” the Court said.  “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 [officer’s] shoes would have understood that he was violating it.”
Kisela “had mere seconds to assess the potential danger” before he acted.  “This is far from an obvious case in which any competent officer would have known that shooting Hughes … would violate the Fourth Amendment,” the Court concluded.  Thus, Kisela was entitled to qualified immunity.


Justice Sotomayor, joined by Justice Ginsburg, dissented.
She said the majority had misstated the facts, and when properly viewed, the facts showed that Kisela’s use of force was objectively unreasonable.
But she also criticized the Court’s summary disposal of the case, and apparent pro-police bias.
 “This unwarranted summary reversal is symptomatic of a disturbing trend regarding the use of this Court’s resources in qualified immunity cases,” she said.  “[T]his Court routinely displays an unflinching willingness to summarily reverse courts for wrongly denying officers the protection of qualified immunity but rarely intervenes where courts wrongly afford officers the benefit of qualified immunity in these same cases.”
 “Such a one-sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment,” she said.
 “[I]t also sends an alarming signal to law enforcement officers and the public.  It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished,” she concluded.