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 ORDER AND

official capacity, AMENDED

Defendant-Appellee. OPINION

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

Amended June 27, 2017

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

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

*

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

for the District of Vermont, sitting by designation.

2 HUGHES V. KISELA

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

SUMMARY**

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

**

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

contrary to the Supreme Court’s direction on the proper

application of the qualified immunity doctrine in the Fourth

Amendment context.

COUNSEL

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.

ORDER

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

4 HUGHES V. KISELA

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.

HUGHES V. KISELA 5

ORDER

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

***

Judge William K. Sessions III, a visiting judge from the District

of Vermont sitting by designation, was a member of the three-judge panel

that decided this case and the author of the Panel’s opinion. Judge

Sessions agrees with the views expressed in this opinion.

6 HUGHES V. KISELA

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

HUGHES V. KISELA 7

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

8 HUGHES V. KISELA

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

1

Mullenix, on which the dissent places great emphasis, is wholly

consistent with the analysis I identify here. See also City & Cty. of San

Francisco. v. Sheehan, 135 S. Ct. 1765, 1776–77 (2015). The Supreme

Court did not limit its qualified immunity analysis in Mullenix to the

question of whether some facts distinguished Mullenix from the Court’s

most analogous precedents involving excessive-force claims in high-speed

car chases, namely Plumhoff, Scott v. Harris, 550 U.S. 372 (2007), and

Brosseau v. Haugen, 543 U.S. 194 (2004). Instead, the Court compared

the factors relevant to the excessive-force inquiry in each case

(emphasizing, in its analysis, the potential threat posed by the suspects in

each case). Mullenix, 136 S. Ct. at 309–10. The Court concluded that

“[t]he threat . . . posed was at least as immediate as that” in Brosseau, and

that although the suspect in Mullenix passed fewer cars than those in

Plumhoff and Scott, he had also expressly threatened to kill any police

officers in his path. Id. at 310. In short, in coming to its conclusion that

Mullenix did not violate clearly established law, the Court considered the

specific facts of the case, compared those facts to the relevant facts in

available precedential cases (with a heavy focus on the threat presented),

and weighed whether those precedents would have placed a reasonable

officer in Mullenix’s position on notice that his actions were unlawful –

HUGHES V. KISELA 9

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

precisely what the panel did in this case.

10 HUGHES V. KISELA

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 –

HUGHES V. KISELA 11

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

12 HUGHES V. KISELA

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 had committed a

minor criminal offense and threatened to assault a police

officer, neither of which Hughes had done. 272 F.3d at 1285.

It is true that Hughes, unlike Deorle, held a kitchen knife.

But it was down at her side, and she did not verbally threaten

2

We have held, based on longstanding Supreme Court precedent,

that “whenever practicable,” such a warning “must be given before deadly

force is employed.” Harris, 126 F.3d at 1201–02 (citing Garner, 471 U.S.

at 11–12). We have recently held, in a factual situation quite similar to

that presented here, that a failure to warn a suspect that he would be fired

upon if he did not comply with police instructions is an important factor

in determining the reasonableness of force. See Hayes v. Cty. of San

Diego, 736 F.3d 1223, 1234–35 (9th Cir. 2013). Hayes, like Hughes, was

holding a knife; he was standing six feet away from San Diego County

sheriff’s deputies (roughly the same distance separating Hughes and

Chadwick) and was walking toward them when the deputies opened fire.

We held that “seen in the light most favorable to [the nonmoving party],”

Hayes “posed no clear threat at the time he was shot without warning.”

Id. at 1235. Cf. White, 137 S. Ct. at 551, 552 (qualified immunity is

warranted if an officer who arrives late on the scene and sees a suspect

pointing a firearm at him could reasonably assume that proper police

procedures such as officer identification and warning had already

occurred).

HUGHES V. KISELA 13

to “kick [a police officer’s] ass” as Deorle did, nor did police

have any basis for thinking she had committed a crime. Id. at

1277. Our case law clearly establishes that the use of deadly

force against a suspect simply because he is holding a gun –

even when that suspect is in proximity to police officers or

other individuals, and even when that suspect has “committed

a violent crime in the immediate past”– is not ipso facto

reasonable, particularly when that gun is not pointed at

another individual or otherwise wielded in a threatening

fashion. Harris, 126 F.3d at 1203–04; Curnow, 952 F.2d at

325. Hughes was holding a kitchen knife – again, an item

that can be used as a weapon but normally is not – not a gun.

And on the facts favorable to Hughes, she never raised her

knife, pointed it toward Chadwick, made any verbal threats,

or moved in a threatening manner toward Chadwick.

Judge Ikuta’s emphasis on Hughes’s “reportedly erratic”

behavior is crucial to the dissent’s formulation of what it

considers to be the relevant alleged constitutional right in this

case. See Dissent at 22 (“The panel should have considered

the alleged violation as: shooting a reportedly erratic, knife-

wielding woman who comes within striking distance of a

third party, ignores multiple [actually two] orders to drop her

weapon, and cannot otherwise be timely subdued due to a

physical barrier separating her from the officer.”) (emphasis

added). The “erratic” characterization is quite a thin reed

upon which to base a claim of qualified immunity, as the facts

seen in the light most favorable to Hughes make clear that she

did not act erratically once the officers arrived. Instead, she

was “composed and content” and did not appear angry or

disturbed.

It is certainly true that Hughes’s earlier, reportedly

“erratic,” behavior toward a tree could be construed as an

14 HUGHES V. KISELA

indicator of mental instability. But there is no basis in our

case law for treating mental illness as an aggravating factor

in evaluating the reasonableness of force employed. To the

contrary, we have held that the apparent mental illness of a

suspect weighs, if anything, in the opposite direction. See

Deorle, 272 F.3d at 1283, 1285. The approach proposed in

the dissent suggests the reverse: that an officer’s use of

deadly force is more reasonable where that officer is aware of

an individual’s mental instability. That approach not only

violates our previous refusal “to create two tracks of

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

serious criminals,” Bryan v. MacPherson, 630 F.3d 805, 829

(9th Cir. 2010), but turns Deorle on its head.

4. It is the dissent from denial of en banc consideration, not

the panel opinion, that ignores the “specific context” in

reaching its conclusion, despite the longstanding principle

that at the summary judgment stage we are to make all

reasonable inferences in favor of the nonmoving party.

Tolan, 134 S. Ct. at 1868.

The dissent identifies four facts in maintaining that

qualified immunity should have been granted – that Hughes

held a kitchen knife in her hand, that she was within five or

six feet of another woman, that she was “reportedly erratic,”

and that she did not respond to two commands to drop the

knife – to the exclusion of all other relevant circumstances

and context. For example, the dissent ignores that Hughes

held the knife calmly at her side, and did not raise it.3 It

3

The dissent incorrectly characterizes Hughes as “wielding” the

knife, a term that suggests she had it in position for use as a weapon. See

20 Oxford English Dictionary 323–24 (2nd ed. 1989) (defining current

sense of “to wield” as “[t]o use or handle with skill and effect; to manage,

HUGHES V. KISELA 15

ignores that Hughes was not suspected of having committed

a crime. It ignores that Hughes made no threatening

movements or statements. It ignores that Kisela, on the facts

most favorable to Hughes, gave two warnings in quick

succession, after failing to identify himself as a police officer

and without any warning that he would open fire if Hughes

did not comply with his instructions.

The dissent ultimately proposes that Kisela was entitled

to qualified immunity for shooting Hughes because one

purportedly analogous case, Blanford, found no constitutional

violation. As the panel held, Blanford is simply inapposite.

Several critical distinctions between the facts here and those

present in Blanford confirm that a reasonable officer would

not view Blanford as condoning the Hughes shooting.

At the time he was shot, Blanford was carrying a two-

and-a-half foot sword. Blanford, 406 F.3d at 1112–13.

Swords, of course, are meant as weapons. In contrast, all the

while the officers were present, Hughes was holding a large

kitchen knife at her side; such a knife certainly can serve as

a weapon but is usually employed as an ordinary culinary

tool. In Blanford’s case, the officers specifically identified

themselves as law enforcement officials. Id. Kisela and the

other officers did not do so orally. Officers expressly warned

Blanford – repeatedly – that they would shoot him if he did

not comply with orders to drop the sword. Id. at 1116–17,

actuate, ply (a weapon, tool, or instrument, now always one held or carried

in the hand”); Webster’s New International Dictionary of the English

Language 2924 (2nd ed. 1959) (defining “wield” as “[t]o use (an

instrument, implement, etc.) with full command or power; to handle with

skill, effectiveness, etc.; to employ, manipulate, or ply.”). Hughes was

just carrying a kitchen knife; she was not using it “with skill and effect,”

or actuating, plying, or employing it, as a weapon.

16 HUGHES V. KISELA

1119. Hughes received no such warning, although such a

warning is required “where feasible.” Garner, 471 U.S. at

11–12. After that warning, Blanford “appeared to flaunt the

deputies’ commands,” as he then raised his sword and roared

in a threatening manner. Id. at 1113, 1119. Hughes did not

raise her knife from her side, and Kisela did not hear her say

anything at all, much less roar in a threatening way. Blanford

ignored repeated police commands over the course of roughly

two minutes. Id. at 1114. Hughes was gunned down within

thirty to forty-five seconds of Officer Kisela’s arrival.

Blanford had committed a (nonviolent) crime witnessed by

the officers present. Id. at 1113, 1116. The officers here did

not see Hughes commit any crime. Blanford was seen

attempting to enter a private residence for which he had no

key, facts probative of a possible home invasion. Here, the

officers had no reason to think Hughes was entering someone

else’s house. She emerged from a house into a yard, and

there was no reason to think it was not her house (which it

was). No reasonable officer could conclude, even

mistakenly, that Blanford sanctioned the shooting of Amy

Hughes in this case.

In short, the panel opinion is a routine application of

established qualified immunity principles to a set of facts

that, under the applicable precedents, any reasonable officer

should have realized did not justify the use of deadly force.

Of course there was no precedent with precisely the same

facts, but there nearly never is. On the dissent’s approach,

officers using excessive force would just about never be

liable for doing so.

Indeed, the more egregious the use of excessive force, the

less likely it is that deadly force would have been used in a

closely similar situation, and the more likely is a grant of

HUGHES V. KISELA 17

qualified immunity on the dissent’s analysis. It is true that

we could find no case in which a court held deadly force

excessive where there was no threat made, verbally or

physically, to anyone, and no crime committed. But almost

surely that is because no reasonable officer would use deadly

force under those circumstances.

I concur in the denial of rehearing en banc.

IKUTA, Circuit Judge, with whom KOZINSKI, TALLMAN,

BYBEE, CALLAHAN, BEA, and N. R. SMITH, Circuit

Judges, join, dissenting from denial of rehearing en banc:

The panel opinion that we let stand today directly

contravenes the Supreme Court’s repeated directive not to

frame clearly established law in excessive force cases at too

high a level of generality. See, e.g., White v. Pauly, 137 S.

Ct. 548, 552 (2017) (per curiam). Rather than ask the correct

question—whether Officer Kisela’s split-second decision in

“the specific context of the case” was “plainly incompetent”

or “knowingly violate[d] the law”—the panel opinion defines

the “clearly established right” here at the highest level of

generality: the right to be free of excessive force. Mullenix

v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam). In doing so,

the panel opinion adopts the same standard that the Supreme

Court has repeatedly overruled. Compare id. at 309 (“The

general principle that deadly force requires a sufficient threat

hardly settles this matter.”), with Hughes v. Kisela, 841 F.3d

1081, 1089 (9th Cir. 2016) (holding that the “most

important[]” question is “whether it was reasonable to believe

that Ms. Hughes presented a threat”). Because the panel

opinion takes a path contrary to the Supreme Court’s

18 HUGHES V. KISELA

direction on the proper application of the qualified immunity

doctrine in the Fourth Amendment context, I would take this

case en banc to correct the panel opinion’s error.

I

The relevant facts necessary to resolve the qualified

immunity analysis are not in dispute. On May 21, 2010,

Andrew Kisela was a corporal with the University of Arizona

Police Department. That evening, he and his colleague

received a radio report that a woman was walking down 7th

Street in Tucson and hacking at a tree with a large knife.

Upon arrival at the scene, Officer Kisela spoke briefly with

the reporting party, and eventually a third officer arrived at

the scene.

Against this backdrop, the incident at the center of this

lawsuit unfolded in the course of thirty to forty-five seconds.

Officer Kisela saw Amy Hughes—a woman matching the

description of the tree-hacker—walking toward a third party,

now known to be Hughes’s housemate Sharon Chadwick.

Hughes was still holding the large knife, so the officers

present drew their guns and ordered Hughes to drop the knife

at least twice. Hughes failed to comply. Instead, she

continued to approach Chadwick, and in fact came close

enough to Chadwick to deliver a blow with the knife. With

a chainlink fence separating the officers from Hughes and

Chadwick, and with insufficient time to transition from his

firearm to his taser, Officer Kisela fired four shots at Hughes,

striking but not killing her.

Amy Hughes then filed this suit against Officer Kisela

pursuant to 42 U.S.C. § 1983, alleging that Officer Kisela

violated her Fourth Amendment right to be free of excessive

HUGHES V. KISELA 19

force. The district court granted summary judgment for

Officer Kisela, which the panel hearing this appeal reversed.

II

The dispositive question here is whether Officer Kisela is

entitled to qualified immunity. As the Supreme Court has

explained, the qualified immunity analysis has two prongs:

In order to deny qualified immunity, the facts must establish

a violation of a constitutional right, and that right must have

been “clearly established” at the time of alleged violation.

Pearson v. Callahan, 555 U.S. 223, 232 (2009). We may

assess the prongs in either order, “in light of the

circumstances in the particular case at hand.” Id. at 236.

In a Fourth Amendment excessive force case, we analyze

the first prong by engaging in “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.” Plumhoff v. Rickard, 134 S. Ct. 2012,

2020 (2014) (quoting Graham v. Connor, 490 U.S. 386, 396

(1989)). This is a “totality of the circumstances” analysis that

we conduct from the perspective of a reasonable officer on

the scene. Id. The analysis is accordingly quite deferential

to the officer. See Saucier v. Katz, 533 U.S. 194, 205 (2001).

But the test for the second prong of the qualified

immunity analysis is different and adds another layer of

deference. See id. For excessive force cases in particular, the

Supreme Court has identified two key principles about what

constitutes a “clearly established” right. First, courts must

define the alleged constitutional violation in terms of the

officer’s “particular conduct.” Mullenix, 136 S. Ct. at 308

(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). As

20 HUGHES V. KISELA

Mullenix explained, “[s]uch specificity is especially important

in the Fourth Amendment context, where the Court has

recognized that ‘[i]t is sometimes difficult for an officer to

determine how the relevant legal doctrine, here excessive

force, will apply to the factual situation the officer

confronts.’” Id. (quoting Saucier, 533 U.S. at 205) (second

alteration in original). Thus, courts may not define the

clearly established right at a high level of generality that

covers a wide range of conduct, as that would “mak[e] it

impossible for officials reasonably [to] anticipate when their

conduct may give rise to liability for damages.” Anderson v.

Creighton, 483 U.S. 635, 639 (1987) (quotation marks

omitted) (second alteration in original).

Second, having identified the context-specific conduct

that allegedly violated the Constitution, courts must

determine whether any precedent existing at the time placed

beyond debate that the use of force in such circumstances

violated the Fourth Amendment. See, e.g., White, 137 S. Ct.

at 551; Mullenix, 136 S. Ct. at 308. The “beyond debate”

standard is a high one: Officers are entitled to qualified

immunity unless “every reasonable official”—which excludes

only the plainly incompetent and those who knowingly

violate the law—“would have understood that what he is

doing violates [the plaintiff’s] right.” Mullenix, 136 S. Ct. at

308 (quoting Reichle v. Howards, 132 S. Ct. 2088, 2093

(2012)). And officers remain entitled to qualified immunity

even if they make “reasonable mistakes” about “the legal

constraints on particular police conduct.” Saucier, 533 U.S.

at 205. Given this high standard, the Supreme Court has

made clear that an official can lose qualified immunity in the

excessive force context only if an earlier case held that

conduct closely analogous to the specific conduct at issue

violated a constitutional right. E.g., Mullenix, 136 S. Ct. at

HUGHES V. KISELA 21

308. For example, the Court recently held that the Tenth

Circuit “misunderstood the ‘clearly established’ analysis”

when it “failed to identify a case where an officer acting

under similar circumstances . . . was held to have violated the

Fourth Amendment,” and instead relied on cases that “lay out

excessive-force principles at only a general level.” White,

137 S. Ct. at 552.

Mullenix illustrates both key principles of the second

prong of the qualified immunity analysis. The officer in

Mullenix was sued for using excessive force after he shot and

killed an individual evading an arrest warrant who was

speeding down the interstate. 136 S. Ct. at 306–07. The

officer’s objective was to disable the fleeing man’s car by

shooting it from an overpass, a tactic that the officer had

neither been trained in nor previously attempted. Id. at 306.

In evaluating whether the officer violated clearly established

law, the Court first explained the alleged violation in terms of

the officer’s specific conduct: The officer “confronted a

reportedly intoxicated fugitive, set on avoiding capture

through high-speed vehicular flight, who twice during his

flight had threatened to shoot police officers, and who was

moments away from encountering an officer.” Id. at 309.

After identifying this context-specific conduct, the Court

then stated that “[t]he relevant inquiry is whether existing

precedent placed the conclusion that [the officer] acted

unreasonably in these circumstances ‘beyond debate.’” Id.

(quoting al-Kidd, 563 U.S. at 741). The Court concluded that

it had “never found the use of deadly force in connection with

a dangerous car chase to violate the Fourth Amendment, let

alone to be a basis for denying qualified immunity.” Id. at

310. Because no Supreme Court case “squarely govern[ed]”

the facts of Mullenix, id., and lower court decisions left the

22 HUGHES V. KISELA

question hazy, id. at 312, the Court could not say that it was

“beyond debate” that the officer violated the plaintiff’s

constitutional right, id. (quoting Stanton v. Sims, 134 S. Ct. 3,

7 (2013) (per curiam)). Therefore, the officer was entitled to

qualified immunity. Id.

III

The panel opinion directly contravenes the qualified

immunity principles relevant to the “clearly established”

inquiry. By doing so, the panel opinion fails to heed the

central lesson of White, Mullenix, and multiple other Supreme

Court decisions in the excessive force context.

First and most fundamentally, the panel opinion fails to

define the alleged constitutional violation in terms of the

officer’s “particular conduct.” Mullenix, 136 S. Ct. at 308

(quoting al-Kidd, 563 U.S. at 742). The panel should have

considered the alleged violation as: shooting a reportedly

erratic, knife-wielding woman who comes within striking

distance of a third party, ignores multiple orders to drop her

weapon, and cannot otherwise be timely subdued due to a

physical barrier separating her from the officer. Instead, the

panel defines the alleged violation at issue as shooting a

plaintiff who “present[ed] no objectively reasonable threat to

the safety of the officer or other individuals,” Hughes,

841 F.3d at 1089 (quoting Deorle v. Rutherford, 272 F.3d

1272, 1285 (9th Cir. 2001)), and focuses solely on whether

Officer Kisela was unreasonable in determining that Hughes

posed a threat.1 By defining the conduct at issue at such a

1

According to the panel, this is the “most important[]” aspect of the

qualified immunity determination because if the issue is determined in

Hughes’s favor, “then Corporal Kisela clearly violated [Hughes’s]

HUGHES V. KISELA 23

high level of generality, the panel adopts the exact erroneous

approach reversed in Mullenix, among other cases; it focuses

only on the general elements of an excessive force violation.

The abstract legal principle that an officer may not use deadly

force when a suspect does not present an objectively

reasonable threat is well established. See, e.g., Tennessee v.

Garner, 471 U.S. 1, 11 (1985). But the proper question for

purposes of identifying a “clearly established” right is

whether any precedent placed beyond debate how this legal

principle applies to the specific facts on the ground in this

case. See Mullenix, 136 S. Ct. at 309. As the Supreme Court

has made clear, at the second prong of the qualified immunity

analysis we are not to focus on the reasonableness of the

officer’s conduct, but on whether the officer could reasonably

have thought that the law permitted his specific conduct

under the facts of the case. See Saucier, 533 U.S. at 205.

The opinion also mishandles the Court’s second key

principle for identifying clearly established law because it

“fail[s] to identify a case where an officer acting under

similar circumstances as Officer [Kisela] was held to have

violated the Fourth Amendment.” White, 137 S. Ct. at 552.

Indeed, by relying on Glenn v. Washington County, 673 F.3d

864 (9th Cir. 2011), the panel tacitly admits that no precedent

squarely governed these facts at the time of the officer’s

conduct. Glenn, which the panel calls “[t]he most analogous

Ninth Circuit case,” Hughes, 841 F.3d at 1088, post-dates the

constitutional right.” Hughes, 841 F.3d at 1089. Obviously, this part of

the panel’s analysis is relevant only to the first prong of the qualified

immunity inquiry: whether the facts establish a violation of a

constitutional right. But this is not the appropriate inquiry at the second

prong, where the question is whether precedent placed “beyond debate”

that the officer’s “particular conduct” was unlawful “in light of the

specific context of the case.” Mullenix, 136 S. Ct. at 308.

24 HUGHES V. KISELA

conduct at issue by more than a year. Needless to say, a case

that was decided after Officer Kisela acted could not have

informed his conduct, and so is “of no use in the clearly

established inquiry.” Brosseau v. Haugen, 543 U.S. 194, 200

n.4 (2004) (per curiam).2

And indeed, no case that the panel cites held that conduct

closely analogous to the conduct at issue in this case violated

the plaintiff’s constitutional rights. The panel’s reliance on

Deorle, see Hughes, 841 F.3d at 1089, is misplaced. In

Deorle, we held that there was “no objectively reasonable

threat to the safety of the officer or other individuals,”

272 F.3d at 1285, where an unarmed man, id., who had been

compliant with at least three police requests to discard

weapons, id. at 1276–77, was shot while walking toward an

officer with a clear path of retreat, id. at 1282, while “the only

neighbors in the vicinity, along with the other police officers,

were safely behind [] two roadblocks,” id. Given these facts,

Deorle “does not clearly dictate the conclusion that [Officer

Kisela] was unjustified in perceiving grave danger and

responding accordingly” in the situation at issue here.

Mullenix, 136 S. Ct. at 311. In stark contrast to Deorle,

Officer Kisela was present at the scene for only a matter of

seconds, while the officer in Deorle had been on the scene for

forty minutes and had observed the victim “for about five to

2

After we dissenting judges pointed out that Glenn was decided

more than a year after the incident in this case, the panel belatedly

amended its opinion to retreat from its reliance on Glenn. See Amended

Op. at 44 n.2. But having now conceded that the panel’s “most analogous

Ninth Circuit case,” id. at 43, is merely “suggestive of the state of the

clearly established law,” and serves only “as illustrative” rather than “as

determinative of clearly established law,” id. at 44 n.2, the panel opinion

more clearly than ever rests on nothing but the general rule that deadly

force requires an objective threat of harm.

HUGHES V. KISELA 25

ten minutes from the cover of some trees.” Deorle, 272 F.3d

at 1277, 1281–82. Hughes was not only armed (unlike

Deorle), but also refused at least two requests to drop her

knife (again unlike the largely compliant Deorle). Likewise,

Hughes was within striking distance of a third party while

separated from the officers by a physical barrier, and Officer

Kisela had been put on notice of Hughes’s earlier erratic

behavior with a knife, which Officer Kisela had been

dispatched to investigate. Shooting an armed, unresponsive,

and reportedly erratic woman as she approaches a third party

is materially different from shooting an unarmed, largely

compliant man as he approaches an officer with a clear line

of retreat. On its facts, therefore, Deorle does not place

“beyond debate” that Officer Kisela’s conduct violated

Hughes’s Fourth Amendment rights. al-Kidd, 563 U.S. at

741.

Worse yet, the panel’s reliance on Deorle repeats the

exact same error for which the Supreme Court reprimanded

us just two years ago in Sheehan, in which the Court noted

that the differences between Deorle and the situation

confronting the officers in Sheehan “leap[t] from the page.”

City & County of San Francisco v. Sheehan, 135 S. Ct. 1765,

1776 (2015). For reasons just discussed, the same is true

here. The Supreme Court went on to hold that, even if Deorle

supported the general rule that an officer’s forcible entry into

a mentally ill individual’s home requires an objective need

for immediate entry, qualified immunity was appropriate

because “no precedent clearly established that there was not

‘an objective need for immediate entry.’” Id. at 1777

(emphasis in original). As in Sheehan, the panel here uses

Deorle to justify denial of qualified immunity based on a

violation of a general Fourth Amendment principle that

deadly force requires an objective threat, without citing a

26 HUGHES V. KISELA

single relevant case in which any court has held that there

was not an objective threat on facts comparable to those here.

The panel further exacerbates its error by brushing aside

Officer Kisela’s argument that a reasonable officer could rely

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

2005), to justify the use of force in this situation. It is

irrelevant whether Blanford is distinguishable, as the panel

claims. Hughes, 841 F.3d at 1090. The issue is not whether

Blanford compels the conclusion that Officer Kisela’s

conduct does not rise to the level of a constitutional violation

(the first prong of the qualified immunity analysis). Rather,

the question is whether any reasonable officer could have

understood Blanford, rightly or wrongly, as permitting the use

of deadly force in this situation. See Saucier, 533 U.S. at

205. On that score, the panel errs.

In Blanford, the officers confronted a man “wearing a ski

mask and carrying a sword” walking through a suburban

neighborhood and “behaving erratically.” 406 F.3d at 1112.

Over the course of approximately two minutes, id. at 1114,

the officers trailed Blanford and repeatedly ordered him to

drop the sword, which he did not do, id. at 1112–13. The

officers “considered whether Blanford might be mentally

disturbed,” but they believed that he “posed an imminent

threat” to the public and that they needed to secure his

weapon, even though no third parties were known to be in the

vicinity. Id. at 1113. When Blanford attempted to enter his

own home, the officers—unaware that it was Blanford’s

home, and not knowing whether anyone was inside the

home—shot him and severed his spine. Id. at 1113–14. We

held that no constitutional violation occurred. Id. at 1117–18.

More specifically, we identified the four elements of the

situation that supported our holding: “[1] [Blanford] was

HUGHES V. KISELA 27

armed, [2] refused to give up his weapon, [3] was not

surrounded, and [4] was trying to get inside a private

residence . . . where his sword could inflict injury that the

deputies would not then be in a position to prevent.” Id. at

1117–18.

Despite the panel’s efforts to distinguish Blanford, see

Hughes, 841 F.3d at 1090, the four elements that compelled

our conclusion in Blanford are present in this case, and it is

therefore clear that Officer Kisela could have reasonably

relied on Blanford to justify his use of force against Hughes.

Cf. Mullenix, 136 S. Ct. at 311 (looking to comparable

decisions from the circuit courts to determine whether an

officer’s assessment of a threat was reasonable); Shinault v.

Hawks, 782 F.3d 1053, 1060 (9th Cir. 2015) (holding that

“qualified immunity is appropriate” where “some courts”

held that no violation of a constitutional right occurred “in

analogous cases,” as this “shows that the right was not clearly

established at the time of conduct”). Just as in Blanford,

Hughes was armed, refused to drop her weapon, was not

surrounded, and was attempting to put herself in a situation

where she could have caused harm that the officers would not

have been able to prevent. See 406 F.3d at 1117–18. Given

our holding in Blanford, Officer Kisela could reasonably have

thought that his conduct was lawful. For qualified immunity

purposes, that is dispositive. See Saucier, 533 U.S. at 205.

Finally, the panel attempts to rescue its ruling by arguing

that it should have been obvious to Officer Kisela that he

could not use deadly force in this context. Hughes, 841 F.3d

at 1090 (citing Brosseau, 543 U.S. at 199, which held that “in

an obvious case,” general Fourth Amendment standards “can

‘clearly establish’ the answer, even without a body of relevant

case law”). In effect, the panel’s argument here is that

28 HUGHES V. KISELA

Officer Kisela’s conduct constituted excessive force under

general Fourth Amendment principles, and it is obvious that

an officer may not use excessive force. See id.

(characterizing as “obvious” that Hughes “had a

constitutional right to walk down her driveway holding a

knife without being shot”). Given that Hughes, as the panel

acknowledges, “may have been acting erratically, was

approaching a third party, and did not immediately comply

with orders to drop the knife,” id., this is far from an obvious

case. Indeed, if this case is obvious—especially in light of

precedents like Blanford—then the “obvious case” exception

will have swallowed the rule to identify a case that “squarely

governs” the situation confronting the officer. Mullenix,

136 S. Ct. at 310.

All told, the panel opinion denies qualified immunity on

the authority of a general Fourth Amendment principle, a

post-dated case, and a wholly unpersuasive attempt to

distinguish a precedent that held, on comparable facts, that no

constitutional violation occurred. These errors are easily

perceived, and we ought to have corrected them.

IV

The concurrence’s last ditch effort to salvage the panel

opinion is to no avail. See Concurrence to Denial of

Rehearing En Banc. Of course, a concurrence is not the

opinion of the court, and is not a means by which this court

can definitively speak on legal questions.3 Moreover, the

3

As some of our colleagues on the Fifth Circuit recently observed,

although a panel publishing a response to denial of rehearing en banc has

“the right to comment on the dissent from denial,” it cannot “articulate any

additional binding precedent.” EEOC v. Bass Pro Outdoor World, LLC,

HUGHES V. KISELA 29

concurrence has no better luck than the panel in identifying

precedent pre-dating Officer Kisela’s use of force that is close

enough to the situation facing Officer Kisela that only a

plainly incompetent or lawless officer would know that his

actions were unconstitutional. See Mullenix, 136 S. Ct. at

308.

First, the concurrence claims that this case is quite like

Harris v. Roderick, 126 F.3d 1189 (9th Cir. 1997), which

addressed the infamous 1992 siege at Ruby Ridge. See

Concurrence at 9, 13.4 But the suggestion that Officer Kisela

ought to have known that his conduct was unlawful because

we held in the wake of Ruby Ridge that a sniper ensconced

safely on a hill cannot shoot a retreating suspect merely

because that suspect had committed a crime the day before,

see Harris, 126 F.3d at 1203, does not pass the straight-face

test. At a minimum, Harris does not place it “beyond debate”

that Officer Kisela violated the Constitution by using deadly

force against a person who had been reported as acting

erratically with a knife minutes before the encounter, was still

armed with the knife, failed to respond to at least two orders

to drop the knife, and was within striking distance of a third

party. White, 137 S. Ct. at 551.

No. 15-20078, — F.3d —, 2017 WL 1540853, at *14 (5th Cir. Apr. 28,

2017) (Jones, J., dissenting from denial of rehearing en banc) (emphasis

omitted).

4

The panel follows suit by amending the opinion to remove a cite to

Glenn and replace it with a cite to Harris, albeit without any explanation.

Compare Hughes, 841 F.3d at 1090 (“As indicated by Glenn and

Deorle, . . . .”), with Amended Op. at 47 (“As indicated by Deorle and

Harris, . . . .”).

30 HUGHES V. KISELA

Equally unconvincing is the concurrence’s reference to

Curnow ex rel. Curnow v. Ridgecrest Police, 952 F.2d 321

(9th Cir. 1991). See Concurrence at 9, 13. On the facts as we

assumed them in Curnow, the victim was sitting in his home,

unarmed, and holding his girlfriend in his lap when a police

officer shot him in the back through a window. Id. at 323.

Whatever wisdom Curnow may impart to a policeman

observing a person chopping onions at an innocent backyard

barbecue, see Concurrence at 7–8, it does not clearly establish

the unreasonableness of deadly force where a reportedly

erratic individual who is unresponsive to police commands

approaches a third party, knife in hand.

Finally, the concurrence points to distinctions between the

facts of this case and those in Blanford, such as the length of

the blade Blanford carried, the fact that the police shouted

“we’ll shoot” to Blanford in addition to an order to drop the

weapon, and the length of the encounter (two minutes in

Blanford rather than forty-five seconds in this case).5

Concurrence at 15–16. Such distinctions might be more

compelling if a federal judge could descend as a deus ex

machina to whisper in the ears of officers on the scene about

the application of precedent before a shot is ever fired. But

in the world in which we actually live, officers must make

split-second decisions regarding the use of force, and a

reasonable officer could have understood Blanford as

5

The concurrence fails to note other distinctions between Blanford

and this case, such as the fact that Hughes was just a few feet away from

a potential victim, whereas Blanford was 20 to 25 feet away from the

police and there was no known third party at risk. Blanford, 406 F.3d at

1112–13. This distinction highlights the need for even faster decision-

making and action on Officer Kisela’s part.

HUGHES V. KISELA 31

recognizing that deadly force could be used in the situation

Officer Kisela faced.

V

By failing to take this case en banc, we unfortunately

repeat our error of framing clearly established law at too high

a level of generality, divorced from the specific context of the

situation facing the officer. Sheehan, 135 S. Ct. at 1775–76

(“We have repeatedly told courts—and the Ninth Circuit in

particular—not to define clearly established law at a high

level of generality.”); al-Kidd, 563 U.S. at 742 (same; citation

omitted); Brosseau, 543 U.S. 194, 198–99 (reversing the

Ninth Circuit for relying on “the general tests” for excessive

force to evaluate clearly established law).6 More unfortunate

still, we do so by over-reading Deorle, the exact same case

that we erroneously over-extended in Sheehan. The panel

6

Indeed, just days ago the Supreme Court rejected yet again this

court’s approach of defining clearly established law at too high a level of

generality. See Petersen v. Lewis County, 663 F. App’x 531 (9th Cir.

2016), cert. granted and judgment vacated sub nom. McKnight v.

Peterson, No. 16-1003, (U.S. June 12, 2017). In Peterson, a police officer

responded to a 911 call reporting that an individual was using a large knife

to stab the front door of a mobile home. Petersen v. Lewis County, No.

C12-5908, 2014 WL 584005, at *1–2 (W.D. Wash. Feb. 13, 2014). The

officer believed, incorrectly as it turned out, that the suspect had a knife.

Id. at *2. The suspect failed to comply with the officer’s orders to get on

the ground and took two steps towards the officer, who was 20 to 25 feet

away, at which point the officer shot the suspect to stop his approach. Id.

Petersen defined clearly established law at a high level: it is clearly

established that an officer may not use deadly force without probable

cause to believe that the plaintiff posed a threat of serious physical harm,

and the officer “did not have probable cause to use deadly force and

therefore acted in violation of clearly established law.” 663 F. App’x at

532. The panel here takes a similarly erroneous approach, and thus also

invites vacatur, if not summary reversal.

32 HUGHES V. KISELA

opinion that we leave in place contradicts White, Mullenix,

Sheehan, al-Kidd, Brosseau, and multiple other Supreme

Court precedents instructing us to “identify a case where an

officer acting under similar circumstances . . . was held to

have violated the Fourth Amendment.” White, 137 S. Ct. at

552.

The panel would have us believe this is all

inconsequential—“[t]he application of qualified immunity,”

it assures us, simply “will depend upon the facts as

determined by a jury.” Hughes, 841 F.3d at 1090. But there

is no set of facts for which Hughes has proffered evidence

that would establish a clear violation of the Fourth

Amendment as of the date of Officer Kisela’s conduct, and

qualified immunity is immunity from suit, not just a defense

to liability. Pearson, 555 U.S. at 237. In this situation, “[o]ur

grand business undoubtedly is . . . to do what lies clearly at

hand.” Thomas Carlyle, Signs of the Times, 49 Edinburgh

Rev. 439, 439 (1829). Because it is apparent on the summary

judgment record that qualified immunity, when properly

applied, shields Officer Kisela from suit in this situation, I

would afford him the immunity to which the law entitles him.

I therefore dissent from the denial of rehearing en banc.

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

HUGHES V. KISELA 33

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.

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

34 HUGHES V. KISELA

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.

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

HUGHES V. KISELA 35

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,

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

36 HUGHES V. KISELA

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.

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.

HUGHES V. KISELA 37

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

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

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).

38 HUGHES V. KISELA

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.

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

HUGHES V. KISELA 39

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.

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

40 HUGHES V. KISELA

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,

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

HUGHES V. KISELA 41

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

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.

42 HUGHES V. KISELA

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.

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

HUGHES V. KISELA 43

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

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) (en banc) (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

44 HUGHES V. KISELA

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

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.2 Id. at 879–80.

2

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

HUGHES V. KISELA 45

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,

poses no risk of flight, and presents no

objectively reasonable threat to the safety of

the officer or other individuals.

Id. at 1285.

of rehearing en banc, at 9–12.

46 HUGHES V. KISELA

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.

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

HUGHES V. KISELA 47

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 Deorle and Harris, 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.

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.

48 HUGHES V. KISELA

REVERSED AND REMANDED.