The NCSL Blog


By Lisa Soronen

The U.S. Supreme Court issues a few summary reversals during a term, a decision where it overturns a lower court ruling without briefing or oral argument.

The Supreme Court building in Washington. Credit Jonathan Ernst/Reuters  Few of them receive much attention because they are “usually reserved … for situations in which the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error.”

While the majority of the Supreme Court sees Kisela v. Hughes this way, Justice Sonia Sotomayor disagreed in a headline-grabbing dissenting opinion describing this case as allowing police officers to “shoot first and think later.” 

Officers arrived at Amy Hughes’ house after being told a woman was hacking a tree with a kitchen knife. Officers saw Hughes emerge from her house carrying a large kitchen knife at her side. Hughes stopped no more than six feet away from her roommate, Sharon Chadwick. After officers told Hughes twice to drop the knife and she did not comply, Officer Andrew Kisela shot her four times.

She survived and sued the officer for using excessive force.

State and local government officials can be sued for money damages in their individual capacity if they violate a person’s constitutional rights. Qualified immunity protects government officials from such lawsuits where the law they violated isn’t “clearly established.”

The 9th U.S. Circuit Court of Appeals ruled that Kisela used unreasonable force in violation of the Fourth Amendment and denied him qualified immunity, concluding the constitutional violation was obvious.

The Supreme Court in a per curium (unauthored) opinion disagreed. It assumed without deciding that Kisela’s use of force was excessive. But the court granted him qualified immunity noting this is “far from an obvious case in which any competent officer would have known that shooting Hughes to protect Chadwick would violate the Fourth Amendment.”

Kisela believed Hughes was a threat to Chadwick, he had only seconds to assess the danger, Hughes had just been seen hacking a tree, and she failed to acknowledge two commands to drop the knife, which were loud enough for her roommate to hear.

The majority of the court was unimpressed with the 9th Circuit cases Hughes cited to illustrate that it was clearly established that the force Kisela used was excessive. According to the court, the most analogous precedent favors Kisela. And “not one of the decisions relied on by the Court of Appeals . . . supports denying Kisela qualified immunity.”

Justice Ruth Bader Ginsburg joined Sotomayor’s dissenting opinion, which pointed to facts they believe indicate qualified immunity wasn’t appropriate including that Hughes “posed no objective threat of harm to officers or others, had committed no crime, and appeared calm and collected during the police encounter.”

The dissenters also criticized the court for “routinely display[ing] an unflinching willingness ‘to summarily reverse courts for wrongly denying officers the protection of qualified immunity’ but ‘rarely intervene[s] where courts wrongly afford officers the benefit of qualified immunity in these same cases.’”

Lisa Soronen is executive director of the State and Local Legal Center and a frequent contributor to the NCSL Blog on judicial issues.

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.