Amy Hughes v. Andrew Kisela

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AMY HUGHES, No. 14-15059

Plaintiff-Appellant,

D.C. No.

v. 4:11-cv-00366-FRZ

ANDREW KISELA, Corporal,

0203; individually and in his OPINION

official capacity,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Arizona

Frank R. Zapata, District Judge, Presiding

Argued and Submitted September 12, 2016

San Francisco, California

Filed November 28, 2016

Before: Ronald M. Gould and Marsha S. Berzon, Circuit

Judges, and William K. Sessions III,* District Judge.

Opinion by Judge Sessions

*

The Honorable William K. Sessions III, United States District Judge

for the District of Vermont, sitting by designation.

2 HUGHES V. KISELA

SUMMARY**

Civil Rights

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.

After receiving a report of a person hacking at a tree with

a knife, police officers responded to the scene and upon their

arrival saw plaintiff carrying a large kitchen knife. Plaintiff

began walking toward another woman and did not comply

with the officers’ demands to drop the knife. Unable to

approach the two women because of a chain-link fence,

defendant shot plaintiff four times.

The panel held that material questions of fact, such as the

severity of the threat, the adequacy of police warnings, and

the potential for less intrusive means were plainly in dispute.

Defendant therefore was not entitled to summary judgment

with respect to the reasonableness of his actions.

The panel further held that defendant was not entitled to

qualified immunity. The panel determined that the facts,

viewed in plaintiff’s favor, presented the police shooting a

woman who was committing no crime and holding a kitchen

knife. While the woman with the knife may have been acting

erratically, was approaching a third party, and did not

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

HUGHES V. KISELA 3

immediately comply with orders to drop the knife, a rational

jury—accepting the facts in the light most favorable to

plaintiff —could find that she had a constitutional right to

walk down her driveway holding a knife without being shot.

COUNSEL

Vince Rabago (argued) and Stacy Scheff, Vince Rabago Law

Office PLC, Tucson, Arizona, for Plaintiff-Appellant.

Robert R. McCright (argued), Assistant Attorney General;

Thomas C. Horne, Arizona Attorney General; Office of the

Attorney General, Tucson, Arizona; for Defendant-Appellee.

OPINION

SESSIONS, District Judge:

After receiving a report of a person hacking at a tree with

a knife, three members of the University of Arizona Police

Department (UAPD) responded to the scene. Upon their

arrival, the officers saw Plaintiff Amy Hughes carrying a

large kitchen knife. Ms. Hughes then began to walk toward

another woman, Sharon Chadwick, at which point the police

yelled for her to drop the knife. Ms. Hughes did not comply.

Ms. Chadwick has submitted an affidavit in which she

describes Ms. Hughes’s demeanor at the time as composed

and non-threatening. Multiple witnesses attest that Ms.

Hughes never raised the knife as she neared Ms. Chadwick.

Unable to approach the two women because of a chain-link

fence, defendant and UAPD Corporal Andrew Kisela shot

Ms. Hughes four times.

4 HUGHES V. KISELA

Ms. Hughes brings suit under 42 U.S.C. § 1983 claiming

excessive force in violation of her constitutional rights. The

district court granted summary judgment in favor of Corporal

Kisela, concluding that his actions were reasonable and that

he was entitled to qualified immunity. The facts when

viewed in the light most favorable to Ms. Hughes do not

support the district court’s decision. We reverse and remand

for further proceedings.

FACTUAL BACKGROUND

On May 21, 2010, Corporal Kisela and UAPD officer-in-

training Alex Garcia were monitoring the Tucson Police

Department radio when they heard a “check welfare” call

regarding a woman reportedly hacking at a tree with a large

knife. The officers drove to the location and were told by the

reporting party that the person with the knife had been acting

erratically. UAPD Officer Lindsay Kunz also responded to

the call.

The following events occurred in less than one minute.

Soon after the three officers arrived, Amy Hughes emerged

from her house carrying a large kitchen knife. Sharon

Chadwick was standing outside the house in the vicinity of

the driveway. According to Ms. Chadwick’s affidavit, Ms.

Hughes was composed and content as she exited the house,

holding the kitchen knife down to her side with the blade

pointing backwards. Ms. Chadwick submits that she was

never in fear, and did not feel that Ms. Hughes was a threat.

As Ms. Hughes approached Ms. Chadwick, the officers

each drew their guns and ordered her to drop the knife.

Although Corporal Kisela contends that the officers yelled

numerous time for Ms. Hughes to drop the knife, Ms.

HUGHES V. KISELA 5

Chadwick recalls hearing only two commands in quick

succession. Ms. Hughes did not drop the knife and continued

to move toward Ms. Chadwick. Corporal Kisela recalls

seeing Ms. Hughes raise the knife as if to attack. Officers

Garcia and Kunz later told investigators that they did not see

Ms. Hughes raise the knife.

A chain link fence at the edge of the property prevented

the officers from getting any closer to the two women.

Because the top of the fence obstructed his aim, Corporal

Kisela dropped down and fired four shots through the fence.

Each of the shots struck Ms. Hughes, causing her to fall at

Ms. Chadwick’s feet. Her injuries were not fatal.

In an interview with police after the shooting, Ms.

Chadwick explained that she and Ms. Hughes lived together,

and that she had managed Ms. Hughes’s behavior in the past.

She also informed police that Ms. Hughes had been

diagnosed with bipolar disorder and was taking medication.

Ms. Chadwick believes that Ms. Hughes did not understand

what was happening when the police yelled for her to drop

the knife. She also believes that Ms. Hughes would have

given her the knife if asked, and that the police should have

afforded her that opportunity.

STANDARD OF REVIEW

A district court’s grant of a motion for summary judgment

is reviewed de novo. Colwell v. Bannister, 763 F.3d 1060,

1065 (9th Cir. 2014). “Summary judgment is appropriate

only ‘if the pleadings, the discovery and disclosure materials

on file, and any affidavits show that there is no genuine issue

as to any material fact and that the movant is entitled to

judgment as a matter of law.’” Stoot v. City of Everett,

6 HUGHES V. KISELA

582 F.3d 910, 918 (9th Cir. 2009) (quoting Fed. R. Civ. P.

56(c)). In reviewing a summary judgment ruling, we draw all

reasonable inferences in favor of the non-moving party.

Galvin v. Hay, 374 F.3d 739, 745 (9th Cir. 2004). We are

obligated to construe the record in the light most favorable to

the party opposing summary judgment. See Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

We review an officer’s entitlement to qualified immunity de

novo. Glenn v. Washington Cty., 673 F.3d 864, 870 (9th Cir.

2011).

DISCUSSION

I. Excessive Force

When evaluating a Fourth Amendment claim of excessive

force, courts ask “whether the officers’ actions are

‘objectively reasonable’ in light of the facts and

circumstances confronting them.” Graham v. Connor,

490 U.S. 386, 397 (1989). This inquiry “requires a careful

balancing of ‘the nature and quality of the intrusion on the

individual’s Fourth Amendment interests’ against the

countervailing governmental interests at stake.” Id. at 396

(quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)). “The

calculus of reasonableness must embody allowance for the

fact that police officers are often forced to make split-second

judgments—in circumstances that are tense, uncertain, and

rapidly evolving—about the amount of force that is necessary

in a particular situation.” Id. at 396–97. Reasonableness

therefore “must be judged from the perspective of a

reasonable officer on the scene, rather than with the 20/20

vision of hindsight.” Id. at 396.

HUGHES V. KISELA 7

The strength of the government’s interest in the force

used is evaluated by examining three primary factors: (1) “the

severity of the crime at issue,” (2) “whether the suspect poses

an immediate threat to the safety of the officers or others,”

and (3) “whether [s]he is actively resisting arrest or

attempting to evade arrest by flight.” Id. (citing Garner,

471 U.S. at 8–9). The “‘most important’ factor under

Graham is whether the suspect posed an ‘immediate threat to

the safety of officers or third parties.’” George v. Morris,

736 F.3d 829, 838 (9th Cir. 2013) (quoting Bryan v.

MacPherson, 630 F.3d 805, 826 (9th Cir. 2010)).

The factors identified in Graham are not exclusive. See

Bryan, 630 F.3d at 826. When assessing the officer’s

conduct, a court must examine “the totality of the

circumstances and consider ‘whatever specific factors may be

appropriate in a particular case, whether or not listed in

Graham.’” Id. (quoting Franklin v. Foxworth, 31 F.3d 873,

876 (9th Cir. 1994)). Other relevant factors may include the

availability of less intrusive force, whether proper warnings

were given, and whether it should have been apparent to the

officer that the subject of the force used was mentally

disturbed. See, e.g., Bryan, 630 F.3d at 831; Deorle v.

Rutherford, 272 F.3d 1272, 1282–83 (9th Cir. 2001). With

respect to the possibility of less intrusive force, officers need

not employ the least intrusive means available so long as they

act within a range of reasonable conduct. See Scott v.

Henrich, 39 F.3d 912, 915 (9th Cir. 1994).

In this case, when viewing the facts in the light most

favorable to Ms. Hughes, the record does not support

Corporal Kisela’s perception of an immediate threat. Officer

Garcia told Tucson police that Ms. Hughes did not raise the

knife and did not make any aggressive or threatening actions

8 HUGHES V. KISELA

toward Ms. Chadwick. Officer Kunz similarly did not see

Ms. Hughes raise her arm. Ms. Chadwick describes Ms.

Hughes as having been composed and non-threatening

immediately prior to the shooting.1

Corporal Kisela was undoubtedly concerned for Ms.

Chadwick’s safety. He had received a report of a person with

a knife acting erratically, and soon thereafter saw that same

person still holding a knife and approaching another

individual. In some situations, “[i]f the person is armed . . .

a furtive movement, harrowing gesture, or serious verbal

threat might create an immediate threat.” George, 736 F.3d

at 838. Nonetheless, “a simple statement by an officer that he

fears for his safety or the safety of others is not enough; there

must be objective factors to justify such a concern.” Deorle,

272 F.3d at 1281 (“A desire to resolve quickly a potentially

dangerous situation is not the type of governmental interest

that, standing alone, justifies the use of force that may cause

serious injury.”); see also Harris v. Roderick, 126 F.3d 1189,

1204 (9th Cir. 1997) (“Law enforcement officials may not kill

suspects who do not pose an immediate threat to their safety

or to the safety of others simply because they are armed.”).

Here, viewing those “objective factors” in a light most

favorable to Ms. Hughes, a rational jury could find that she

did not present an immediate threat to the safety of others,

and that Corporal Kisela’s response was unreasonable. Id.

1

While Ms. Chadwick’s description may not be entirely consistent

with some of her other statements in the record, “we must draw all

justifiable inferences in favor of [Ms. Hughes], including questions of

credibility and of the weight to be accorded particular evidence.” Masson

v. New Yorker Magazine, Inc., 501 U.S. 496, 520 (1991).

HUGHES V. KISELA 9

The question of the severity of the crime being committed

also weighs in Ms. Hughes’s favor. The three officers present

at the time of the shooting were responding to a “check

welfare” call. No crime was reported. As in Deorle, where

the police shot a mentally ill man acting strangely, the

officers arrived “not to arrest [Ms. Hughes], but to investigate

[her] peculiar behavior.” 272 F.3d at 1280–81. And also as

in Deorle, this was not a situation of a “lone police officer

suddenly confronted by a dangerous armed felon . . . .” Id. at

1283. The majority in Deorle noted that “[t]he character of

the offense is often an important consideration in determining

whether the use of force was justified,” and ultimately

concluded that “where the crime being committed, if any, was

minor and the danger to . . . others appear to have been

minimal,” the governmental interest in using force was

“clearly not substantial.” Id. at 1280–82. A rational jury,

viewing the facts in a light most favorable to Ms. Hughes,

could reach the same conclusion here.

The third factor cited in Graham, whether the suspect was

resisting or seeking to evade arrest, does not apply as the

events in this case occurred too quickly for the officers to

make an arrest attempt. A related issue is Ms. Hughes’s

disregard of the officers’ commands to drop the knife. It is

undisputed that officers yelled at least twice for her to drop

the knife. If the case goes to trial, the jury may hear evidence

of several additional warnings. At summary judgment,

however, the Chadwick affidavit plays an important role on

this point. Ms. Chadwick heard only two warnings in quick

succession, and perceived that Ms. Hughes did not understand

what was happening. Whether the police should have

perceived this is a question for the jury.

10 HUGHES V. KISELA

At the time, the police were privy to facts suggesting that

Ms. Hughes might have a mental illness. The initial report

was to “check welfare” of a person trying to cut down a tree

with a knife. Upon arriving at the scene, the reporting party

informed Corporal Kisela that this same person was acting

erratically. Just prior to the shooting, Corporal Kisela himself

recalled Ms. Hughes “stumbling” toward Ms. Chadwick.

This Court has “refused to create two tracks of excessive

force analysis, one for the mentally ill and one for serious

criminals.” Bryan, 630 F.3d at 829. The Court has, however,

“found that even when an emotionally disturbed individual is

acting out and inviting officers to use deadly force to subdue

him, the governmental interest in using such force is

diminished by the fact that the officers are confronted . . .

with a mentally ill individual.” Id. (citation and internal

quotation marks omitted). A reasonable jury could conclude,

based upon the information available to Corporal Kisela at

the time, that there were sufficient indications of mental

illness to diminish the governmental interest in using deadly

force.

Another factor to be considered is whether there were less

intrusive means that could have been used before employing

deadly force. As noted previously, officers “need not avail

themselves of the least intrusive means of responding to an

exigent situation; they need only act within that range of

conduct we identify as reasonable.” Henrich, 39 F.3d at 915.

However, “police are ‘required to consider [w]hat other

tactics if any were available,’” and whether there are “clear,

reasonable and less intrusive alternatives” to the force being

contemplated. Bryan, 630 F.3d at 831 (quoting Headwaters

Forest Def. v. Cty. of Humboldt, 240 F.3d 1185, 1204 (9th

Cir. 2000)); see also Smith v. City of Hemet, 394 F.3d 689,

HUGHES V. KISELA 11

703 (9th Cir. 2005) (holding that officers should consider

“alternative techniques available for subduing [a suspect] that

presented a lesser threat of death or serious injury”).

In this case, the record includes expert opinions about the

reasonableness of using a firearm in this situation. Ms.

Hughes’s expert concluded that Corporal Kisela should have

used his Taser, and that shooting through the fence was both

dangerous and excessive. Corporal Kisela’s expert opined

that a Taser would likely have become tangled in the fence,

and that the shooting was reasonable. It is well established

that a jury may hear expert testimony in this type of case, and

rely upon such evidence in assessing whether the officer’s use

of force was unreasonable. See Larez v. City of Los Angeles,

946 F.2d 630, 635 (9th Cir. 1991) (as amended) (finding that

testimony of “an expert on proper police procedures and

policies” was relevant and admissible). Here, the differences

in the experts’ opinions reinforce our conclusion that there

are questions for a jury to consider in determining whether

Ms. Hughes’s constitutional rights were violated.

This Court has noted that “[b]ecause [the question of

excessive force] nearly always requires a jury to sift through

disputed factual contentions, and to draw inferences

therefrom, we have held on many occasions that summary

judgment or judgment as a matter of law in excessive force

cases should be granted sparingly.” Santos v. Gates, 287 F.3d

846, 853 (9th Cir. 2002); see also Liston v. Cty. of Riverside,

120 F.3d 965, 976 n.10 (9th Cir. 1997) (as amended) (“We

have held repeatedly that the reasonableness of force used is

ordinarily a question of fact for the jury.”). This is such a

case. Material questions of fact, such as the severity of the

threat, the adequacy of police warnings, and the potential for

less intrusive means are plainly in dispute. See, e.g., City of

12 HUGHES V. KISELA

Hemet, 394 F.3d at 703 (“Considering the severity and extent

of the force used, the three basic Graham factors, and the

availability of other means of accomplishing the arrest, it is

evident that the question whether the force used here was

reasonable is a matter that cannot be resolved in favor of the

defendants on summary judgment.”). Corporal Kisela is not

entitled to summary judgment with respect to the

reasonableness of his actions.

II. Qualified Immunity

The district court determined that because Corporal

Kisela acted reasonably, it need not reach the question of

qualified immunity. Nonetheless, the court commented that

“under the totality of the circumstances and the standard of

whether it would be clear to a reasonable officer that his

conduct was unlawful in the situation he confronted, it

appears that [Corporal Kisela’s] conduct was reasonable;

[Corporal Kisela] would therefore be entitled to qualified

immunity.” As discussed above, there are questions of fact

in dispute that foreclose a finding of reasonableness as a

matter of law. We therefore undertake a qualified immunity

analysis.

The Supreme Court has explained that “[t]he doctrine of

qualified immunity protects government officials ‘from

liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of

which a reasonable person would have known.’” Pearson v.

Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity

shields an officer from liability even if his or her actions

resulted from “a mistake of law, a mistake of fact, or a

mistake based on mixed questions of law and fact.” Groh v.

HUGHES V. KISELA 13

Ramirez, 540 U.S. 551, 567 (2004) (Kennedy, J., dissenting)).

The purpose of qualified immunity is to strike a balance

between the competing “need to hold public officials

accountable when they exercise power irresponsibly and the

need to shield officials from harassment, distraction, and

liability when they perform their duties reasonably.” Id.

“Qualified immunity gives government officials breathing

room to make reasonable but mistaken judgments about open

legal questions. When properly applied, it protects ‘all but

the plainly incompetent or those who knowingly violate the

law.’” Ashcroft v. Al-Kidd, 563 U.S. 731, 743 (2011)

(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

“In determining whether an officer is entitled to qualified

immunity, we consider (1) whether there has been a violation

of a constitutional right; and (2) whether that right was

clearly established at the time of the officer’s alleged

misconduct.” Lal v. California, 746 F.3d 1112, 1116 (9th

Cir. 2014) (citing Pearson, 555 U.S. at 232). Consequently,

at summary judgment, an officer may be denied qualified

immunity in a Section 1983 action “only if (1) the facts

alleged, taken in the light most favorable to the party

asserting injury, show that the officer’s conduct violated a

constitutional right, and (2) the right at issue was clearly

established at the time of the incident such that a reasonable

officer would have understood [his] conduct to be unlawful

in that situation.” Torres v. City of Madera, 648 F.3d 1119,

1123 (9th Cir. 2011).

Here, the question of a constitutional violation involves

disputed facts which, when viewed most favorably to Ms.

Hughes, could support a rational jury finding in her favor.

We therefore move to the second question: whether the right

at issue was clearly established such that a reasonable officer

14 HUGHES V. KISELA

would have understood his actions were unlawful. The law

does not “require a case directly on point, but existing

precedent must have placed the . . . constitutional question

beyond debate.” al-Kidd, 563 U.S. at 740. That said, this

Court has acknowledged that qualified immunity may be

denied in novel circumstances. See Mattos v. Agarano,

661 F.3d 433, 442 (9th Cir. 2011) (citing Hope v. Pelzer,

536 U.S. 730, 741 (2002)). “Otherwise, 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, 272 F.3d at 1286; see also Brosseau v. Haugen,

543 U.S. 194, 199 (2004) (stating that “in an obvious case,

these [Graham] standards can ‘clearly establish’ the answer,

even without a body of relevant case law”).

The most analogous Ninth Circuit case is Glenn, 673 F.3d

864, in which an eighteen-year-old man was shot in his

driveway by police officers. Police received a report of an

agitated, intoxicated man carrying a pocket knife and

threatening to kill himself. Although at least one officer was

told that the man had calmed down, when police saw him

holding the knife to his own neck they drew their guns and

screamed for him to drop it. Additional officers arrived at the

scene, one of whom shot the man with several beanbags. The

impact of the beanbags caused the man to move away from

the beanbag fire and toward the house in which his parents

were standing. As police had determined that if the man

“made a move toward the house with his parents inside, they

would use deadly force,” they opened fire and killed him.

Glenn, 673 F.3d at 869.

Glenn is similar to this case in several respects. For

example: it was not clear that the decedent in Glenn was

HUGHES V. KISELA 15

actually threatening anyone; no serious crime was being

committed; there was no effort to resist or evade arrest aside

from failing to put down the knife; the failure to drop the

knife may have been the result of confusion by an impaired

person; and it might have been reasonable to use less

intrusive force. Although the district court had granted

summary judgment, this Court remanded Glenn for a jury

trial. Id. at 879–80.

Deorle, 272 F.3d 1272, also offers similar facts, though

the plaintiff in Deorle was acting far more strangely than Ms.

Hughes. In Deorle, an officer responded to a call about an

individual who was drunk and behaving erratically. At

different points, the man brandished a hatchet, shouted “kill

me,” threatened to “kick [a police officer’s] ass,” and walked

around with an unloaded cross-bow. 272 F.3d at 1276–77.

Police observed him for five to ten minutes before the man

began walking towards an officer with a bottle of lighter

fluid. At that point the officer fired a bean bag, permanently

blinding the man and fracturing his skull in several places.

Id. at 1277–78.

As in this case, police in Deorle were at the scene to

investigate peculiar behavior. Some sort of mental

impairment was evident, the suspect was not trying to escape,

and the risk of imminent harm was in question. In denying

the officer’s qualified immunity defense, this Court wrote:

Every 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,

16 HUGHES V. KISELA

poses no risk of flight, and presents no

objectively reasonable threat to the safety of

the officer or other individuals.

Id. at 1285.

Here, several of those same determinations are in dispute,

namely: whether Corporal Kisela was reasonable in believing

that the kitchen knife was a weapon; whether he should have

suspected mental health issues; whether the warning was

sufficient; and most importantly, whether it was reasonable

to believe that Ms. Hughes presented a threat to Ms.

Chadwick’s safety. If those questions are determined in Ms.

Hughes’s favor, then Corporal Kisela clearly violated her

constitutional right.

Corporal Kisela claims support to the contrary from

Blanford v. Sacramento County, 406 F.3d 1110 (9th Cir.

2005), in which police had received reports of a man in a ski

mask carrying a sword through a suburban residential

neighborhood. But that case could not reasonably be relied

upon as justifying shooting Ms. Hughes. Mr. Blanford was

carrying a two-and-a-half-foot-long Civil War-era cavalry

saber and made “a loud growling or roaring sound.”

Blanford, 406 F.3d at 1113. He then walked toward a

residence and tried to enter after searching his pockets for

keys. Unsuccessful, he turned to a walkway, saw the police

officers with guns drawn, and heard them order him to drop

the sword. The police shot the man as he rounded the far

corner of the house, then again as he tried to enter through

another door. After the man continued walking, police fired

a third time and severed his spine, rendering him a paraplegic.

On those facts, the Court found that the officers were entitled

to qualified immunity. Id. at 1119.

HUGHES V. KISELA 17

This case, when viewing the facts in Ms. Hughes’s favor,

differs from Blanford in several critical respects. Most

importantly, in contrast to a clearly disturbed man carrying a

sword, Ms. Hughes held a kitchen knife—which has a

perfectly benign primary use—down at her side, and

according to Ms. Chadwick’s affidavit, did not appear either

angry or menacing. The only information the police had

regarding her use of the knife was that she was carving a tree,

not that she was threatening or hurting a person. Mr.

Blanford plainly disregarded police orders to drop the

weapon. Here, it was apparent to Ms. Chadwick, and there is

a fact issue whether it should have been evident to the police,

that Ms. Hughes did not understand what was happening

when they yelled for her to drop the knife. And in Blanford

the suspect actively evaded police, while Ms. Hughes made

no such attempt to get away.

The application of qualified immunity in this case will

depend upon the facts as determined by a jury. The facts,

viewed in Ms. Hughes’s favor, present the police shooting a

woman who was committing no crime and holding a kitchen

knife. While the woman with the knife may have been acting

erratically, was approaching a third party, and did not

immediately comply with orders to drop the knife, a rational

jury—again accepting the facts in the light most favorable to

Ms. Hughes—could find that she had a constitutional right to

walk down her driveway holding a knife without being shot.

As indicated by Glenn and Deorle, as well as the Supreme

Court’s reference to the “obvious case,” Brosseau, 543 U.S.

at 199, that right was clearly established. Based on the

disputed facts, Corporal Kisela is not entitled to qualified

immunity.

18 HUGHES V. KISELA

CONCLUSION

We therefore reverse the district court’s grant of summary

judgment and remand for a jury to determine whether

Corporal Kisela’s use of deadly force was lawful.

REVERSED AND REMANDED.