Opposition Brief — Andrew Kisela, Petitioner v. Amy Hughes

No. 17-467

IN THE

Supreme Court of the United States

_________

ANDREW KISELA,

Petitioner,

v.

AMY HUGHES,

Respondent.

________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

________

BRIEF IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI

________

VINCENT LEE RABAGO,

VINCE RABAGO LAW

OFFICE, PLC

2135 E. Grant Road

Tucson, AZ 85719

(520) 955-9038

AMIR H. ALI

RODERICK & SOLANGE

MACARTHUR JUSTICE

CENTER

718 7th Street NW

Washington, DC 20001

(202) 869-3434

DAVID M. SHAPIRO

Counsel of Record

RODERICK & SOLANGE

MACARTHUR JUSTICE CENTER

NORTHWESTERN PRITZKER

SCHOOL OF LAW

375 E. Chicago Ave.

Chicago, IL 60611

(312) 503-0711

david.shapiro@law.

northwestern.edu

amir.ali@macarthur

justice.org

Attorneys for Respondent

i

QUESTION PRESENTED

Whether Corporal Kisela is entitled to summary

judgment on qualified immunity grounds for shooting

Amy Hughes when the facts, viewed in the light most

favorable to Hughes, are these: At the moment Kisela

shot Hughes, she was standing stationary in her yard,

five to six feet away from Sharon Chadwick. The two

women were conversing, and Hughes appeared calm

and peaceable. A kitchen knife, pointed down to the

ground, rested in her hand. The police told Hughes to

drop the kitchen knife twice, but she appeared not to

register the instruction. Chadwick asked the police

and Hughes to “take it easy.” Kisela opened fire on

Hughes, shooting at her four times through a metal

fence.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

TABLE OF AUTHORITIES ........................................ v

STATEMENT OF THE CASE .................................... 1

I.

Facts ...................................................................... 1

II. Proceedings ........................................................... 3

REASONS FOR DENYING THE PETITION ............ 5

I. This Case is a Poor Candidate for Certiorari or

Summary Reversal Because the Facts Are Muddled

by Various Conflicting Accounts, and the Petition

Does Not Present the Facts in the Light Most

Favorable to Hughes. .................................................. 7

A. The Record Contains Contradictory Evidence

on Virtually Every Important Fact. ........................ 7

1. Did Hughes appear agitated, or calm and

peaceable?.............................................................. 8

2. Did Hughes threaten Chadwick? ................... 9

3. How many times did the police instruct

Hughes to drop the kitchen knife? ..................... 10

4. Did the officers reasonably believe that

Hughes heard their instructions to drop the

kitchen knife? ...................................................... 10

5. What did Chadwick say to the officers who

were pointing their guns at Hughes? ................. 11

6. When Kisela shot Hughes, how far apart

were Hughes and Chadwick? ............................. 11

7. When Kisela shot Hughes, was Hughes

approaching Chadwick or standing still?........... 12

iii

8. Did Hughes “wield” the kitchen knife at any

point? ................................................................... 12

9. When Kisela shot Hughes, where was the

kitchen knife? ...................................................... 13

B. The Petition Omits Important Facts that a

Rational Juror Could Find. .................................... 13

C. The Dissent from Denial of Rehearing En Banc

Misstates the Facts. ............................................... 14

II. Viewing the Facts in the Light Most Favorable to

Hughes, Corporal Kisela is Not Entitled to Qualified

Immunity. .................................................................. 17

A. Viewing the Facts in the Light Most Favorable

to Hughes, Corporal Kisela Committed an Obvious

Constitutional Violation......................................... 17

B. Kisela Is Not Entitled to Qualified Immunity

Because Both Ninth Circuit Law and the Law of

Other Circuits Clearly Establish that Police Cannot

Shoot a Person Merely for Being Armed if She Does

Not Make Any Threatening Moves........................ 19

C. Kisela Is Not Entitled to Qualified Immunity

Because Prior Cases Had Clearly Established a Set

of Factors that Govern Use of Deadly Force, and

Every One of Those Factors Cuts in Favor of

Hughes. ................................................................... 25

D. The Court of Appeals Did Not Define Clearly

Established Law at Too High a Level of

Generality. .............................................................. 26

E. No Appellate Judge Disagreed with the

Conclusion that Kisela Committed a Constitutional

Violation. ................................................................ 28

iv

III. This Case Does Not Present the Question

Whether the Police May Use Deadly Force To

Prevent Third Party Harm, Nor Is There a Circuit

Split on that Question. .............................................. 29

A. This Case Does Not Present the Question

Whether a Police Officer May Use Deadly Force To

Prevent Third Party Harm. ................................... 30

B. There Is No Circuit Split as to Whether Police

Officers May Use Deadly Force To Prevent Third

Party Harm............................................................. 31

C. There is No Conflict Between the Decision

Below and the Prior Decisions of the Ninth Circuit

and this Court. ....................................................... 33

CONCLUSION .......................................................... 35

v

TABLE OF AUTHORITIES

Cases

Ashcroft v. al–Kidd, 563 U.S. 731 (2011) ................. 26

Blanford v. Sacramento County, 406 F.3d 1110

(9th Cir. 2005) .................................................... 16, 33

Bouggess v. Mattingly, 482 F.3d 886

(6th Cir. 2007) .......................................................... 21

Brosseau v. Haugen, 543 U.S. 194 (2004) ................ 18

Bryan v. MacPherson, 630 F.3d 805

(9th Cir. 2010) ......................................................... 25

Chew v. Gates, 27 F.3d 1432 (9th Cir. 1994) ...........19

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

(9th Cir. 1991) .....................................................6, 20

Deorle v. Rutherford, 272 F.3d 1272

(9th Cir. 2001) ..................................................passim

Duong v. Telford Borough, 186 F. App’x 214

(3d Cir. 2006) .......................................................6, 23

George v. Morris, 736 F.3d 829 (9th Cir. 2013) .......25

Graham v. Connor, 490 U.S. 386 (1985) ......18, 29, 30

Harris v. Roderick, 126 F.3d 1189

(9th Cir. 1997) ..................................................... 6, 19

Hope v. Pelzer, 536 U.S. 730 (2002) .........................27

Isayeva v. Sacramento Sheriff’s Department,

872 F.3d 938 (9th Cir. 2017) ...................................27

Larsen’s Estate v. Murr, 511 F.3d 1255

(10th Cir. 2008) ........................................................31

Long v. City and County of Honolulu, 511 F.3d 901,

(9th Cir. 2007) ..........................................................19

Long v. Slaton, 508 F.3d 576 (11th Cir. 2007) ........32

Mace v. City of Palestine, 333 F.3d 621

(5th Cir. 2003) ..........................................................31

McKinney v. DeKalb Cty., 997 F.2d 1440

(11th Cir. 1993) ....................................................6, 22

Mercado v. City of Orlando, 407 F.3d 1152

(11th Cir. 2005) ....................................................6, 24

vi

Mullenix v. Luna, 136 S. Ct. 305 (2015) ..................26

Reyes v. Bridgwater, 362 Fed. Appx. 403

(5th Cir. 2010) ......................................................6, 23

Scott v. Harris, 550 U. S. 372 (2007) .......................33

Scott v. Henrich, 39 F.3d 912 (9th Cir. 1994) ..........19

Sevier v. City of Lawrence, 60 F.3d 695

(10th Cir. 1995) ....................................................6, 22

Stanton v. Sims, 134 S. Ct. 3 (2013) .........................28

Tennessee v. Garner, 471 U.S. 1

(1985) ........................................................6, 18, 19, 25

Thomson v. Salt Lake County, 584 F.3d 1304

(10th Cir. 2009) ....................................................... 31

United States v. Meling, 47 F.3d 1546

(9th Cir. 1995) ........................................................... 9

Untalan v. City of Lorain, 430 F.3d 312

(6th Cir. 2005) ................................................... 30, 31

Walker v. City of Orem, 451 F.3d 1139

(10th Cir. 2006) ....................................................... 21

White v. Pauly, 137 S. Ct. 548 (2017) .............. 18, 26

Wilson v. Layne, 526 U.S. 603 (1999) .................... 28

Statutes

42 U.S.C. § 1983 ........................................................ 3

1

STATEMENT OF THE CASE

I.

Facts

Amy Hughes and Sharon Chadwick lived in the

same house, and the two women were good friends. ER

107 (Chadwick). On May 21, 2010, Ms. Hughes had

been seen cutting a tree with a knife, and police were

radioed to check on her welfare. ER 286 (Kisela), 321

(Kunz). No crime had been reported. ER 114 (Garcia).

Corporal Andrew Kisela arrived on the scene with

Officer Alex Garcia. ER 301 (Garcia). Officer Lindsey

Kunz arrived separately. ER. 302 (Garcia). The

officers first saw Ms. Chadwick. ER 301–302 (Garcia).

Hughes came out of her house and into the yard,

walking in Chadwick’s direction. ER 301–302 (Garcia).

Less than a minute later, Hughes was bleeding on the

ground, having been shot by Corporal Kisela. ER 286–

287 (Kisela). Virtually everything that happened

between the arrival of the police and the shooting of

Ms. Hughes is disputed. Viewed in the light most

favorable to Ms. Hughes, the facts are these:

The police observed Hughes and Chadwick having

a discussion and talking back and forth. ER 322–323

(Kunz). Hughes’s demeanor during the discussion was

composed and content. ER 109 (Chadwick). Hughes

was acting peaceably. ER 194–195 (Hughes Resp. to

Requests for Admission). She did not appear angry.

ER 323 (Kunz). Because Hughes was holding a kitchen

knife at her side, the officers drew their guns. ER 302–

303 (Garcia). Kisela drew first. ER 303 (Garcia). The

officers did not observe Hughes make any threatening

2

moves, or threaten Chadwick in any way. ER 110–111

(Chadwick); ER 246 (Hughes); ER 325 (Kunz).

Although the police officers were in uniform, they

did not identify themselves as police. ER 110

(Chadwick); ER 304 (Garcia). They instructed Hughes

to drop the kitchen knife twice. ER 109 (Chadwick).

Hughes appeared not to hear the two instructions. ER

323–324 (Kunz). To prevent her friend from being

shot, Chadwick said, “hey, take it easy,” directing the

comment to both Hughes and the police. ER 109, 199

(Chadwick).

At the time Kisela shot Hughes, Hughes and

Chadwick were approximately five to six feet apart,

and both were stationary. ER 281 (Kisela); ER 306

(Garcia). Hughes, who was standing in her own yard,

held a kitchen knife in her left hand. Her arm was

resting down at her side, and the tip of the kitchen

knife pointed toward the ground. ER 109–110

(Chadwick); ER 305–306 (Garcia). She did not raise

the kitchen knife at any point that the police were

present. ER 110 (Chadwick); ER 322, 325 (Kunz); ER

306 (Garcia).

The other two officers did not shoot. ER 118

(Garcia); ER 325 (Kunz). Officer Garcia held his fire

because he “wanted to continue trying verbal

command and see if that would work.” ER 120

(Garcia). He was inclined to “use some lesser means”

than shooting Hughes because there was time “[t]o try

to talk her down.” ER 120–121.

After she was shot, Hughes fell to the ground,

bleeding and screaming. ER 109 (Chadwick); ER 286

3

(Kisela). She looked up at the officers and said, “Why’d

you shoot me?” ER 308 (Garcia).

When he shot at Hughes four times, Corporal

Kisela endangered not only her but also his fellow

officers and Ms. Chadwick because he fired through a

metal chain link fence. According to Hughes’ expert,

“[t]he force of the round at approximately 1000 ft a

second could have fragmented and hit not only the

person it was intended for but anyone within close

proximity . . . .” ER 155. Chadwick herself was hit by

a projectile during the shooting. ER 211 (Chadwick).

II.

Proceedings

Ms. Hughes brought suit against Corporal Kisela

in the United States District Court for the District of

Arizona, alleging a claim under 42 U.S.C. § 1983 for

excessive force under the Fourth Amendment and a

state law claim for negligence. Pet. App. 70–71. The

district court granted Kisela’s motion to dismiss the

state law negligence claim, and later granted his

motion for summary judgment on the excessive force

claim, finding that Kisela did not violate the Fourth

Amendment and was entitled to qualified immunity.

Pet. App. 71, 84–85.

Hughes appealed, and the court of appeals

reversed the grant of summary judgment on the

excessive force claim, finding that summary judgment

was improper on the issue of excessive force because

“[m]aterial 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.” Pet. App. 43, 49. The court also concluded

4

that “the record does not support Corporal Kisela’s

perception of an immediate threat.” Pet. App. 38.

Because a rational juror could find that no immediate

threat existed, and because previous Ninth Circuit

cases found a Fourth Amendment violation where

police used deadly force against people who did not

present any immediate threat, the court held that

Corporal Kisela was not entitled to summary

judgment on qualified immunity grounds. Pet. App.

44–49. The court concluded that a jury “could find that

[Hughes] had a constitutional right to walk down her

driveway holding a knife without being shot.” Pet.

App. 49.

Kisela filed a petition for rehearing en banc, which

the court of appeals denied. Pet. App. 2. Judge Ikuta,

joined by Judges Kozinski, Tallman, Bybee, Callahan,

Bea, and N.R. Smith, dissented from the denial of

rehearing en banc. Pet. App. 17. The dissent argued

that the panel opinion framed clearly established law

at too high a level of generality. Pet. App. 17.

According to the dissent, the panel should have

considered whether “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” violated clearly established law. Pet. App.

23. Judge Berzon, joined by Judge Gould, filed a

concurrence in the denial of rehearing en banc. Pet.

App. 5. Judge Sessions, who sat by designation on the

panel, agreed with the views stated in the

concurrence. Pet. App. 4.

5

REASONS FOR DENYING THE PETITION

This fact-bound case comprises a tangled and

inconsistent set of disputed recollections. The proper

outcome turns on which conflicting parts of which

conflicting witness accounts a factfinder ultimately

decides to credit. This case is a poor candidate for

certiorari or summary reversal because the record

fails to answer definitively nearly all of the important

factual questions that this case presents. For the same

reason, it is a poor vehicle to resolve any legal question

of broad significance.

The petition and the dissent from denial of

rehearing oversimplify the facts of this case, relying on

assumptions contradicted by other accounts contained

in the record, and failing to present the facts in the

light most favorable to Ms. Hughes. Contrary to the

petition, a rational juror could find the following facts:

(1) Hughes appeared calm and peaceable when

Corporal Kisela shot her, (2) the police did not observe

Hughes do anything threatening, (3) the police warned

Hughes to drop her kitchen knife only twice, (4)

Corporal Kisela would have known based on Hughes’

demeanor that she did not register either warning, (5)

Chadwick told the police to “take it easy” to prevent

them from needlessly shooting Hughes, (6) Hughes

was standing stationary when Corporal Kisela shot

her, (7) Hughes’ kitchen knife was resting in her hand

and pointed down to the ground, (8) Kisela fabricated

a skin-saving story—contradicted by every other

witness—that Hughes raised the kitchen knife just

before he shot her, (9) Officer Garcia held his fire

because he wanted to deescalate the situation with

6

verbal instructions to Hughes, (10) Corporal Kisela

recklessly exposed not only Hughes but also his fellow

officers and Ms. Chadwick to danger by firing four

times into a metal fence.

Taking these as the facts, as the Court must at this

stage of the proceedings, this is not a complicated case

from the standpoint of qualified immunity. It is well

settled that a police officer may shoot a person only

“[w]here the officer has probable cause to believe that

the suspect poses a threat of serious physical harm,

either to the officer or to others.” Tennessee v. Garner,

471 U.S. 1, 11 (1985).

In this case, Corporal Kisela committed an obvious

constitutional violation by shooting a woman who was

conversing in a peaceable manner while holding a

kitchen knife in a residential yard (her own yard, as it

turned out). Many cases from the Ninth Circuit and

other courts of appeals stand for the obvious

proposition that police cannot shoot at someone

merely because she has a weapon—there must, at

minimum, be some indication that she is going to use

it. See Harris v. Roderick, 126 F.3d 1189 (9th Cir.

1997); Deorle v. Rutherford, 272 F.3d 1272 (9th Cir.

2001); Curnow v. Ridgecrest Police, 952 F.2d 321 (9th

Cir. 1991); Sevier v. City of Lawrence, 60 F.3d 695

(10th Cir. 1995); McKinney v. DeKalb Cty., 997 F.2d

1440 (11th Cir. 1993); Reyes v. Bridgwater, 362 Fed.

Appx. 403 (5th Cir. 2010); Duong v. Telford Borough,

186 F. App’x 214 (3d Cir. 2006); Mercado v. City of

Orlando, 407 F.3d 1152 (11th Cir. 2005).

This case also does not present a circuit split, or a

conflict with the prior decisions of this Court or the

7

Ninth Circuit. The supposed split rests on the

incorrect premise that the decision below failed to

consider third-party harm, but the court of appeals

clearly analyzed the possibility of such harm. The

court of appeals simply took the facts in the light most

favorable to Hughes, as the law requires on summary

judgment. On those facts, Corporal Kisela was not

entitled to summary judgment because he sprayed a

woman with bullets for no good reason.

I.

This Case is a Poor Candidate for

Certiorari or Summary Reversal Because

the Facts Are Muddled by Various

Conflicting Accounts, and the Petition

Does Not Present the Facts in the Light

Most Favorable to Hughes.

A. The Record Contains Contradictory

Evidence on Virtually Every Important

Fact.

When the record is considered in the light most

favorable to Ms. Hughes, the factual predicates of the

petitioner’s questions presented disappear. Police did

not observe Hughes “acting erratically,” but displaying

a calm and content demeanor. Pet. i. Although the

officers did observe Hughes “walking . . . toward”

Chadwick, id., Hughes had stopped and was standing

still when Kisela opened fire. Hughes did not simply

“move[ ] with” Chadwick, id.—she moved away from

Chadwick at other points. Hughes did not “ignore[ ]

commands to drop the knife, id., but did not hear or

did not register them, as Kisela would have realized.

Kisela did not have a “well-founded belief that

potentially lethal force was necessary to protect

8

[Chadwick] from an attack that could have serious or

deadly consequences,” id., because the facts did not

establish any immediate threat. In fact, as we

demonstrate below, not only the factual assertions in

the questions presented, but virtually all of the key

factual premises relied upon by the petitioner and the

dissent do not construe the record in the light most

favorable to Hughes.

1. Did Hughes appear agitated, or calm and

peaceable?

In an effort to paint Hughes as unhinged during

her interaction with the police, petitioner cites

testimony from a witness who observed Hughes earlier

in the day, but was not present for Hughes’ and

Chadwick’s encounter with the police. Pet. 3. The

characterizations of this witness do not shed light on

Ms. Hughes’ demeanor at the relevant time—when

police observed her. At the time the officers arrived on

the scene, they were responding to a radioed in call to

check on the welfare of a woman who had been seen

cutting tree branches with a knife. ER 286 (Kisela),

321 (Kunz).

Viewed in the light most favorable to the

respondent, the police observed a Ms. Hughes who

appeared placid and harmless. Chadwick described

Hughes as “composed and content” throughout their

discussion outside the house. Pet. App. 11; ER 109

(Chadwick). Hughes denied that she was doing

anything other than “acting peaceably” during the

conversation. ER 194–195. It appeared to Officer Kunz

that Hughes was “talking back and forth with

[Chadwick],” and “[i]t was kind of like she was having

9

a discussion with [Chadwick].” ER 322, 323 (Kunz).

During the discussion that the two women were

having, Hughes “wasn’t shouting” and “it didn’t seem

like she was angry.” ER 323 (Kunz); Pet. App. 11.

Thus, as the panel concluded, “the facts seen in the

light most favorable to Hughes make clear that she did

not act erratically once officers arrived.” Pet. App. 14.

Petitioner misunderstands these characterizations

as reflecting only Chadwick’s “subjective” lack of fear,

based on her friendship with Hughes. Pet. 20. In fact,

as the panel stated, Chadwick’s statements are

descriptions of “Ms. Hughes’s demeanor.” Pet. App. 34.

Fact witnesses are fully competent to testify to the

demeanor of a person they observed. See United States

v. Meling, 47 F.3d 1546, 1556 (9th Cir. 1995). A

rational juror might credit Kisela’s descriptions of

Hughes as agitated. A rational juror might also

conclude that Kisela described Hughes as agitated

because he shot her and needed to justify it.

2. Did Hughes threaten Chadwick?

The petitioner seeks to depict Ms. Hughes as

threatening Chadwick during the interaction

witnessed by the officers. Pet. 2. Neither Officer Kunz

nor Officer Garcia saw Hughes making threats to

either the officers or to Chadwick. ER 324 (Kunz); ER

306 (Garcia). Officer Kunz did not observe Hughes

making “any quick movements,” and characterized the

interaction between Hughes and Chadwick as simply

“a discussion.” ER 323 (Kunz). Viewing the facts in the

light most favorable to Hughes, she did not threaten

Chadwick or anyone else. During the incident,

Chadwick “was never in fear, and did not feel that Ms.

10

Hughes was a threat.” Pet. App. 35; ER 110–111

(Chadwick). Hughes stated that she was “no threat to

nobody.” ER 246 (Hughes).

3. How many times did the police instruct

Hughes to drop the kitchen knife?

Chadwick, Kisela, Garcia, and Kunz offer differing

accounts of how many times the officers told Hughes

to drop the kitchen knife. ER 109 (Chadwick); ER 281,

283 (Kisela); ER 304 (Garcia); ER 322 (Kunz). The

favorable account for Hughes, and therefore the

governing account for purposes of summary judgment,

is Chadwick’s. Chadwick heard only two warnings “in

quick succession.” Pet. App. 35, 60; ER 109

(Chadwick).

4. Did the officers reasonably believe that

Hughes heard their instructions to drop

the kitchen knife?

The petitioner states several times that Hughes

“ignored” instructions from police to drop the kitchen

knife. Pet. i, 4, 5, 18. This characterization suggests

that she heard the instructions and willfully ignored

them, but it does not construe the facts in the light

most favorable to Hughes. A rational juror could draw

the more favorable inference that Hughes simply did

not hear the instructions, and that reasonable officers

would have perceived that she did not hear them. See

Pet. App. 49. Indeed, Officer Kunz stated, “it seemed

as though she didn’t even know we were there” and

“[i]t was like she didn’t hear us almost.” ER 323–324

(Kunz). Similarly, Officer Garcia stated that Hughes

acted “almost as if we weren’t there.” ER 304 (Garcia).

11

Garcia tried to get Hughes’ attention by shaking the

fence. ER 304 (Garcia). Though clad in uniforms, the

officers did not identify themselves as police officers.

Pet. App. 15; ER 304 (Garcia), ER 330 (Kunz). As the

panel stated, “[w]hether police should have perceived"

that Hughes did not understand the two instructions

“is a question for the jury.” Pet. App. 41.

5. What did Chadwick say to the officers who

were pointing their guns at Hughes?

The petition creates a false impression that

Chadwick did nothing to warn the police officers that

shooting Hughes was unnecessary. Pet. 5–6

(“Chadwick was aware of the officers with their drawn

guns. But she did not express the view that she later

asserted: that she did not feel threatened by

Hughes.”). In fact, Chadwick did not have time to say

much because Kisela shot Hughes less than a minute

from when she came into view. Pet. App. 35; ER 286–

287 (Kisela). Yet even in that narrow sliver of time,

while the police pointed their guns at Hughes,

Chadwick said “hey, take it easy.” ER 109 (Chadwick).

She directed the comment to both the police and Ms.

Hughes. ER 199 (Chadwick). Chadwick was about to

add, “everything is all right,” but she was unable to do

so because Kisela opened fire. ER 109 (Chadwick).

6. When Kisela shot Hughes, how far apart

were Hughes and Chadwick?

Witnesses presented differing recollections of the

distance separating Hughes and Chadwick. ER 281

(Kisela), ER 305 (Garcia), ER 330 (Kunz), ER 207

(Chadwick). The most favorable account in this regard

12

is that the two stood about five to six feet apart. ER

281 (Kisela).

7. When Kisela shot Hughes, was Hughes

approaching Chadwick or standing still?

Although Hughes had walked toward Chadwick,

there are differing accounts of whether Hughes was

approaching Chadwick at the moment when Kisela

fired, or standing stationary. Kisela claims Hughes

was “[w]alking straight towards [Chadwick]” and

“[c]oming right at her” when he fired. ER 282, 284

(Kisela). Garcia, however, stated that Hughes was

standing stationary, having “stopped there in front of

the woman.” ER 306 (Garcia). In a summary judgment

posture, the Court must assume the truth of Officer

Garcia’s account because it is more favorable to Ms.

Hughes.

The petition twice states that Hughes “moved with”

Chadwick, conjuring up an image of Hughes following

Chadwick around the yard. Pet. i, 18. In fact, during

the brief period that officers observed the two, they

also observed Hughes moving away from Chadwick.

Pet. App. 11; ER 281 (Kisela), ER 330 (Kunz).

8. Did Hughes “wield” the kitchen knife at

any point?

The petitioner characterizes Ms. Hughes as

“wielding” her kitchen knife during the encounter. Pet.

1–2. This is an incorrect characterization of Hughes’

actions because the word “wield” incorrectly suggests

that Hughes “had [the kitchen knife] in position for

use as a weapon.” Pet. App. 15, n.3. On the facts most

13

favorable to Hughes, she was merely “carrying a

kitchen knife.” Id.

9. When Kisela shot Hughes, where was the

kitchen knife?

According to petitioner, “Kisela stated that he saw

Hughes raise the knife.” Pet. 5. Kisela indeed made

that claim, ER 281–282, but everyone else present

contradicted it. According to Chadwick, the kitchen

knife was “in [Hughes’] left hand down at her side.” ER

109 (Chadwick). See also ER 110 (Chadwick) (“At no

time before Amy was shot that day did Amy ever even

raise the knife which was in her left hand.”); id.

(“When the officer shot Amy she was just holding the

knife in her left hand with her arm down by her side,

and the knife blade was pointed to the rear of her

body.”); ER 209 (Chadwick) (Hughes was holding the

kitchen knife with the tip pointed down). According to

Officer Kunz, Hughes “was just holding it down next

to her side in her left hand . . .” ER 322 (Kunz). Kunz

“didn’t see her arm raise.” ER 325 (Kunz). Officer

Garcia likewise stated that Hughes did not raise the

kitchen knife. Pet. 19; ER 306 (Garcia). In light of

these accounts, a rational juror could draw the

inference that Kisela lied about his perception that

Hughes raised the kitchen knife in order to save his

own skin.

B. The Petition Omits Important Facts that

a Rational Juror Could Find.

In addition to resolving disputed facts in Kisela's

favor, the petition and dissent omit facts favorable to

Hughes. First, it is undisputed that the other officers

14

chose not to fire, although they observed the same

situation. ER 118 (Garcia); ER 325 (Kunz). Officer

Garcia candidly stated that he “wanted to continue

trying verbal command and see if that would work.”

ER 120 (Garcia). In Officer Garcia’s judgment, there

was time “[t]o try to talk her down” and to “use some

lesser means.” ER 120–121 (Garcia). A rational juror

could find that the judgment of the other officers in

holding their fire is relevant to whether Corporal

Kisela’s use of force was reasonable.

A rational juror could also conclude that Kisela

endangered third parties by shooting at Hughes. “The

force of the round at approximately 1000 [feet] a

second could have fragmented and hit not only the

person it was intended for but anyone within close

proximity . . .” ER 155. Chadwick herself was hit by a

projectile, and the officers were standing close to each

other when Kisela fired. ER 211 (Chadwick); ER 307

(Garcia).

Given the conflicting evidence on nearly all the

material facts, this case does not lend itself to

summary disposition. This case is also too fact-bound

to provide a vehicle for resolving any recurrent legal

questions through a grant of certiorari.

C. The Dissent from Denial of Rehearing En

Banc Misstates the Facts.

The dissent states, “[t]he relevant facts necessary

to resolve the qualified immunity analysis are not in

dispute,” Pet. App. 18, but goes on to characterize

disputed facts in a manner unfavorable to Ms. Hughes

and to ignore facts favorable to her. The dissent’s legal

15

analysis flows from its incorrect presentation of the

facts, and therefore loses its force when the facts are

construed in the manner most favorable to Hughes.

Contrary to the dissent’s assertion that Hughes

“failed to comply” with two instructions to drop the

knife, Pet. App. 19, a juror could conclude that a

reasonable officer would have realized that Hughes

did not hear or did not process the instructions. See

supra § I.A.4. The dissent claims that Ms. Hughes

“continued to approach Chadwick” at the moment

Corporal Kisela fired, Pet. App. 19, but Officer Garcia

stated that Ms. Hughes “stopped there in front of the

woman.” ER 306 (Garcia). The dissent ignores the fact

that Ms. Chadwick asked the officers to “take it easy,”

ER 109, and the account that Ms. Hughes appeared

composed and content. ER 109 (Chadwick).

The dissent again misstates the record and

resolves disputed facts when it suggests that the

“alleged constitutional violation” the panel should

have considered in the qualified immunity analysis

was “shooting a reportedly erratic, knife-wielding

woman who comes within striking distance of the

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.”

Pet. App. 23. Viewing the facts in the light most

favorable to Hughes, she was not “wielding” anything,

but was simply holding a kitchen knife as she relaxed

her arm at her side, had not heard or processed two

(not “multiple”) instructions to drop the kitchen knife,

and did not appear “erratic.” See supra § I.A. Although

the earlier third-hand account on the officers’ radio

16

might have described Ms. Hughes as “erratic,” she

appeared calm when they arrived on the scene. ER 109

(Chadwick).

These factual characterizations undermine the

dissent’s legal analysis. The dissent distinguishes

Deorle v. Rutherford, 272 F.3d 1272 (9th Cir. 2001), on

the ground that the instant case involves “[s]hooting

an armed, unresponsive, and reportedly erratic

woman as she approaches a third party,” Pet. App. 26,

but fails to acknowledge Officer Garcia’s account that

Ms. Hughes had stopped and was not approaching

anyone when Corporal Kisela shot her. ER 306

(Garcia). The characterization of Ms. Hughes as

“reportedly erratic,” Pet. App. 26, also ignores the

accounts that suggest she would have appeared calm

and peaceable to officers on the scene, undercutting

third-hand reports of earlier erratic behavior.

Similarly, the dissent’s analysis of Blanford v.

Sacramento County, 406 F.3d 1110 (9th Cir. 2005),

cited in Pet. App. 28, a shooting case in which the

Ninth Circuit did not find a constitutional violation,

depends on dramatizing the facts of this case and

sanitizing the facts of Blanford. Here again, the

dissent states that Ms. Hughes “refused to drop her

weapon,” Pet. App. 28, even though a reasonable juror

could find that the officers should have known that

Hughes did not hear or process the instructions. The

dissent states that Hughes was “attempting to put

herself in a situation where she could have caused

harm,” Pet. App. 28, ignoring Officer Garcia’s account

that Hughes had stopped approaching Chadwick and

was standing still.

17

The sword-wielder in Blanford is so dissimilar from

Ms. Hughes as to render the case totally irrelevant. In

Blanford, officers responded to reports of a man

carrying a sword through a residential neighborhood

while clad in a ski mask, licking the sword, and

walking down the middle of a street. 272 F.3d at 1112.

They arrived to find a man brandishing a 2-1/2 foot

sword and wearing a ski mask pulled up from his face.

Id. 1112. They repeatedly told him to drop the sword,

identified themselves as police, and said that they

would shoot. Id. 1112–13. But he kept going. Id. He

raised the sword to the air and emitted a loud growl.

Id. at 1113. The man saw the deputies and realized

they “might be there for him.” Id. Then he tried to

enter a home through the back entrance while

wielding the sword. Id. The officers opened fired

because they reasonably feared that if he got into the

house, he could harm anyone inside it with the sword.

Id. at 1113.

II.

Viewing the Facts in the Light Most

Favorable to Hughes, Corporal Kisela is

Not Entitled to Qualified Immunity.

A. Viewing the Facts in the Light Most

Favorable to Hughes, Corporal Kisela

Committed an Obvious Constitutional

Violation.

If the facts are viewed in the light most favorable

to Hughes, Kisela committed an obvious constitutional

violation because he lacked any justification for the

use of deadly force. Hughes displayed a calm

demeanor and was speaking with her friend in their

shared yard. See supra § I.A.1. Hughes had walked up

18

to Chadwick, had stopped five to six feet from her, and

was standing still. See supra § I.A.6. As the two women

conversed, Hughes rested her arm at her side, holding

a kitchen knife that pointed down toward the ground.

See supra § I.A.9. The officers gave two instructions to

drop the knife, but Hughes did not seem to have heard

either one. See supra § I.A.3. After police drew their

weapons, Chadwick told Kisela and the others present

to “take it easy.” See supra § I.A.5. But rather than

taking it easy, Kisela shot Hughes four times through

a chain-link fence, causing her serious injury and

creating a needless risk of injuring Chadwick, Garcia,

and Kunz with flying shrapnel. See supra § I.A.5.

Kisela disputes all of these facts, of course, but that

only serves to illustrate that the complicated part of

this case is the facts—the conflicting accounts make

the facts far from obvious, which is why a jury should

sort them out. On summary judgment, however, when

the complicated and conflicting narratives of the

shooting must be stripped down to the account most

favorable to respondent, this case becomes obvious as

a legal matter. There was no reason for Kisela to shoot

Ms. Hughes.

Although the legal standards that this Court

announced in Graham v. Connor, 490 U.S. 386 (1985),

and Tennessee v. Garner, 471 U.S. 1 (1985), are not

particularized enough to defeat qualified immunity in

non-obvious cases, they do clearly establish law

sufficient to dispose of obvious cases like this one.

Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (“Of

course, in an obvious case, these standards can ‘clearly

establish’ the answer, even without a body of relevant

19

case law.”); see also White v. Pauly, 137 S. Ct. 548, 552

(2017) (“Garner and Graham do not by themselves

create clearly established law outside ‘an obvious

case.’” (citing Brosseau, 543 U.S. at 199)).

B. Kisela Is Not Entitled to Qualified

Immunity Because Both Ninth Circuit

Law and the Law of Other Circuits Clearly

Establish that Police Cannot Shoot a

Person Merely for Being Armed if She

Does Not Make Any Threatening Moves.

Ninth Circuit decisions that predate the events at

issue in this case clearly establish that police officers

cannot shoot a person—such as a woman conversing

in her yard and holding a kitchen knife—if she does

not pose an immediate risk of harm to an officer or

third party, even if the person is holding a weapon.

These cases reflect the Ninth Circuit’s refinement of

the basic principle that “[a]n officer’s use of deadly

force is reasonable only if ‘the officer has probable

cause to believe that the suspect poses a significant

threat of death or serious physical injury to the officer

or others.’” Scott v. Henrich, 39 F.3d 912, 914 (9th Cir.

1994) (quoting Tennessee v. Garner, 471 U.S. 1, 3

(1985)); Chew v. Gates, 27 F.3d 1432, 1452 (9th Cir.

1994) (same); Long v. City and County of Honolulu,

511 F.3d 901, 906 (9th Cir. 2007) (same).

The Ninth Circuit has repeatedly applied the rule

that police cannot shoot a person merely for being

armed—the person must do something such as make a

threat or point the weapon at someone. Harris v.

Roderick, 126 F.3d 1189, 1193–94 (9th Cir. 1997),

involved the shooting of Kevin Harris at Ruby Ridge.

20

On the previous day, Harris had been involved in a

firefight with other FBI agents, one of whom died,

possibly from a bullet fired by Harris. Id. at 1193. The

next day, an FBI agent shot Harris, who was armed

with a gun and running into a cabin. Id. at 1194.

Harris did not make any threatening movement with

the gun, and the case clearly establishes the

proposition that “[l]aw 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.” Id. at 1204.

Similarly, in Deorle v. Rutherford, 272 F.3d 1272

(9th Cir. 2001), a suspect acted erratically outside his

home and “brandish[ed] a hatchet at a police officer.”

Id. at 1276. After discarding the hatchet, the suspect

approached another officer while carrying an unloaded

crossbow, which he dropped when ordered to do so. Id.

at 1277. But the suspect continued to hold what may

have been a can or bottle of lighter fluid as he

approached the officer. Id. The officer shot the suspect

with a bean-bag round. Id. at 1277–78. The court

found that the officer committed a constitutional

violation and was not entitled to qualified immunity.

Id. at 1285–86.

Ninth Circuit law clearly establishes that police

who shoot a suspect holding a semi-automatic rifle are

not entitled to qualified immunity if there are

conflicting accounts of whether the suspect raised the

weapon or threatened anyone with it. In Curnow v.

Ridgecrest Police, 952 F.2d 321, 323 (9th Cir. 1991),

Officer A attempted to break down the door to the

home of a suspect who had a semiautomatic rifle

21

within arm’s reach, while Officer B aimed his gun at

the suspect through a window. Ultimately, Officer B

shot the suspect through the window. Id. Witnesses in

Curnow disputed whether the suspect raised the rifle

when Officer A tried to knock down the door or merely

grabbed the rifle by the muzzle. Id. Viewing the facts

in the light most favorable to the shooting victim, the

court of appeals affirmed the denial of summary

judgment to Officer B: There was no immediate danger

when Officer B shot the suspect because the suspect

had merely taken the semiautomatic rifle by the

muzzle without aiming it at anyone. Id. at 325.

Surely the rule that police cannot shoot a suspect

merely for holding a firearm also applies to a kitchen

knife, which is generally less dangerous. See Walker v.

City of Orem, 451 F.3d 1139, 1160 (10th Cir. 2006)

(“[W]here an officer had reason to believe that a

suspect was only holding a knife, not a gun, and the

suspect was not charging the officer and had made no

slicing or stabbing motions toward him . . . it was

unreasonable for the officer to use deadly force against

the suspect.”); Bouggess v. Mattingly, 482 F.3d 886,

896 (6th Cir. 2007) (“[E]ven when a suspect has a

weapon, but the officer has no reasonable belief that

the suspect poses a danger of serious physical harm to

him or others, deadly force is not justified . . . In other

words, mere possession of a weapon is not enough to

satisfy [the officer’s] burden at [the summary

judgment] stage.”).

In addition to the Ninth Circuit cases discussed

above, federal courts of appeals repeatedly held in

cases decided before Corporal Kisela shot Ms. Hughes

22

that an officer does not enjoy qualified immunity when

she shoots a person who has a knife but is not

threatening anyone with it. In these cases, as in the

current case, one or more officers claim that the person

they shot raised a knife or did something threatening

with it, but other witnesses state that the shooting

victim merely held the knife. The federal courts of

appeals hold that summary judgment for the shooter

is not warranted because the facts viewed in the light

most favorable to the shooting victim fail to

demonstrate a threat.

In Sevier v. City of Lawrence, 60 F.3d 695, 698

(10th Cir. 1995), police responding to a 911 call found

a man (Sevier) sitting in his bedroom holding a knife.

Sevier later emerged from the bedroom and stood in

the doorway with the knife in his right hand. Id. Two

officers repeatedly ordered Sevier to drop the knife. Id.

When Sevier did not, they shot him. Id. The officers

testified that Sevier had turned and lunged at one of

them with the knife in a raised and striking position,

but other witnesses stated that Sevier was simply

standing there with the knife at his side. Id. The court

of appeals found that it lacked jurisdiction to consider

the officers’ appeal from the district court’s ruling that

summary judgment was inappropriate because there

were genuine disputes of fact. Id. at 700.

In McKinney v. DeKalb Cty., 997 F.2d 1440, 1442

(11th Cir. 1993), police responding to a 911 call found

McKinney in his closet, holding a butcher knife in one

hand and a twelve-inch stick in the other. McKinney

made a motion with the stick in his hand and began to

rise from his seated position. Id. Officer Nelsen fired

23

at McKinney. Id. The court of appeals upheld the

district court’s denial of summary judgment to Officer

Nelsen on qualified immunity grounds. Id. at 1443.

Viewing the facts in the light most favorable to

McKinney, the court assumed that he had put down

the knife and was merely shifting position, not

threatening anyone’s safety, when Officer Nelsen shot

him. Id.

In Reyes v. Bridgwater, 362 Fed. Appx. 403, 404–

05 (5th Cir. 2010), police officers confronted Ceballos

holding a kitchen knife in an entryway to an

apartment. Officers ordered Ceballos to drop the knife

multiple times. Id. at 405. Ceballos refused and threw

down his cigarette. Id. Officer Bridgwater then shot

Cellabos. Id. Officers testified that Cellabos stepped

forward and raised the knife, but another witness

testified that Cellabos neither stepped forward nor

raised the knife. Id. The court of appeals reversed the

grant of summary judgment in favor of Officer

Bridgwater on qualified immunity grounds. Id. at 409.

Viewing the facts in the light most favorable to the

plaintiff, the court assumed that Cellabos held the

knife and threw down his cigarette, but did not raise

the knife or step forward. Id. at 407–08.

In Duong v. Telford Borough, 186 F. App’x 214, 215

(3d Cir. 2006), a police officer entered Duong’s home in

response to a call that three suspicious men had

entered the home. When Officer Fox entered, he saw

Duong on his back with a man on top of him. Id. As

Officer Fox called for backup, Duong, who was holding

a knife, chased the other men to the back of the house.

Id. Officer Fox, who was not aware that Duong was

24

the homeowner, then shot Duong. Id. Officer Fox

testified that he identified himself as police and told

Duong to drop the knife, but Duong testified that he

did not hear Officer Fox say anything before he was

shot. Id. The parties also disputed Duong’s position

relative to Officer Fox and his movements before he

was shot. Id. Officer Fox testified that Duong was

walking towards him and lowered his body as if he was

about to leap, but Duong testified that Officer Fox shot

him as soon as he sat down with the knife in his

outstretched right arm, pointed away from Officer

Fox. Id. The court of appeals upheld the district court’s

denial of Officer Fox’s motion for summary judgment.

Id. at 219. The court of appeals found that a

reasonable jury, viewing the facts in the light most

favorable to the plaintiff, could conclude that Duong

was sitting down and pointing the knife away from the

officer at the time he was shot, and had not received

any warnings to drop the knife. Id. at 217.

In Mercado v. City of Orlando, 407 F.3d 1152, 1154

(11th Cir. 2005), police officers found a man crying on

the kitchen floor and holding a knife pointed at his

chest. They ordered him to drop the knife, and he

refused, but he did not make a threatening move. Id.

A police officer used a device to launch a polyurethane

baton at the plaintiff’s head, causing brain injury. Id.

at 1154–55. The officer argued that he was entitled to

summary judgment because the man had a knife and

“suicidal subjects sometimes make erratic moves that

can jeopardize the safety of the officers on the scene.”

Id. at 1157. The court disagreed because the knife was

not pointed at a police officer or third party. Id. at

1160.

25

C. Kisela Is Not Entitled to Qualified

Immunity Because Prior Cases Had

Clearly Established a Set of Factors that

Govern Use of Deadly Force, and Every

One of Those Factors Cuts in Favor of

Hughes.

As the panel stated, Ninth Circuit decisions

interpreting this Court’s jurisprudence clearly

establish a particularized set of factors that govern

police shooting cases. Pet. App. 52. These factors are

far more detailed and specific than a bare standard of

fault—such as the requirement that police use only

“reasonable” force. The specific factors put real meat

on the bones. They are: (1) the severity of the crime at

issue, (2) whether the suspect poses an immediate

threat to the safety of the officer or others, (3) whether

she is actively resisting arrest or attempting to evade

arrest by flight, (4) the availability of less intrusive

force, and (5) whether proper warnings were given. Pet

App. 37–38 (citing Garner, 471 U.S. at 8–9; George v.

Morris, 736 F.3d 829, 837 (9th Cir. 2013); Bryan v.

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

272 F.3d at 1283–85 (9th Cir. 2001)).

Not only does the law clearly establish a detailed

set of factors to be considered, but every one of those

factors cuts in favor of Ms. Hughes. The panel

carefully applied each factor to the facts, viewed in the

light most favorable to Ms. Hughes.

Under the first factor (severity of the crime at

issue), the panel found that no crime had been

reported. Pet. App. 40. Under the second factor

(immediate threat), Hughes posed no immediate

26

threat under the facts viewed in the light most

favorable to her. Pet. App. 38–39. Under the third

factor (attempt to flee or resist arrest), Hughes did not

resist because officers made no attempt at arrest.

Moreover, she did not seem to hear the officers’

warnings or understand the events unfolding around

her. Pet. App. 40–41. Under the fourth factor (mental

illness), Corporal Kisela had reason to suspect mental

illness based on the initial “check welfare” report,

which conveyed that Hughes had earlier tried to cut a

tree with a knife. Pet. App. 41. Under the fifth factor

(availability of less intrusive means), an expert

witness for Hughes concluded that Corporal Kisela

had a Taser and should not have used his gun. Pet.

App. 42. Indeed, the expert concluded that “shooting

through the fence was . . . dangerous.” Pet. App. 42.

One might add to the analysis of less intrusive means

the fact that Officer Garcia was inclined to “use some

lesser means” than shooting Hughes because there

was time “[t]o try to talk her down.” ER 120–121.

D. The Court of Appeals Did Not Define

Clearly Established Law at Too High a

Level of Generality.

Contrary to the argument of petitioner and the

dissent, the court of appeals did not define clearly

established law at too high a level of generality. As

demonstrated above, the panel’s decision was dictated

by precedent from both the Ninth Circuit and other

courts of appeals, which established that holding a

weapon but not threatening people with it does not

license the police to open fire. See supra § II.B.

27

When the facts in this case are properly viewed in

the light most favorable to Hughes, it becomes difficult

to identify what more law petitioner and the dissent

deem necessary to overcome qualified immunity.

Perhaps they would require a Ninth Circuit case with

very similar facts, but that is the very thing that this

Court repeatedly has stated is not necessary. Mullenix

v. Luna, 136 S. Ct. 305, 308 (2015) (“We do not require

a case directly on point, but existing precedent must

have placed the statutory or constitutional question

beyond debate.” (quoting Ashcroft v. al–Kidd, 563 U.S.

731, 741 (2011))); White, 137 S. Ct. at 551 (per curiam)

(same); Hope v. Pelzer, 536 U.S. 730, 741 (2002)

(stating that a “fundamentally similar” or “materially

similar” previous case is not required).

As Judge Berzon wrote in her concurrence in the

denial of rehearing en banc, “the panel opinion is a

routine application of 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.” Pet. App. 17. Indeed,

the same panel of judges that reversed the grant of

qualified immunity in this case reversed a denial of

qualified immunity in Isayeva v. Sacramento Sheriff’s

Department, 872 F.3d 938, 942 (9th Cir. 2017), a case

argued before the panel on the same day as this case.1

Like this case, Isayeva also involved police officers who

shot a mentally ill individual. Id. at 942, 944. Far from

Oral Argument, Isayeva v. Sacramento Sheriff's

Department, 872 F.3d 938 (No. 15-17065), available at

https://www.ca9.uscourts.gov/media/view.php?pk_id=0000

016282.

1

28

campaigning to upend qualified immunity law by

relying on overly broad legal principles, the panel was

simply applying law to fact when it decided both this

case and Isayeva.

E. No Appellate Judge Disagreed with the

Conclusion that Kisela Committed a

Constitutional Violation.

Petitioner makes much of the fact that seven

judges dissented from the denial of rehearing en banc,

suggesting if “judges cannot agree on the law,” then

the law must not be clearly established. Pet. 30. In

fact, none of the court of appeals judges expressed

doubt that a constitutional violation occurred.

Judge Sessions’ opinion for the Ninth Circuit

panel, joined by Judges Berzon and Gould, concluded,

viewing the facts in the light most favorable to

Hughes, that Kisela violated the Constitution when he

shot Hughes and that he was not entitled to qualified

immunity. Pet. App. 49. Judge Berzon’s concurrence in

the denial of rehearing en banc reached the same

conclusions. Pet. App. 17.

Judge Ikuta’s dissent from the denial of rehearing

en banc argued that Kisela is entitled to qualified

immunity. Pet. App. 19–22. Judge Ikuta did not

address the panel’s holding on whether a

constitutional violation occurred. Pet. App. 19–22. No

appellate judge has ever suggested that Kisela did

anything other than violate the Fourth Amendment

when he shot Ms. Hughes.

Petitioner appears to be conflating lack of

unanimity on two separate issues—(1) whether a

29

constitutional violation occurred, and (2) whether a

defendant is entitled to qualified immunity despite the

constitutional violation. While petitioner cites

authority suggesting that disagreement on the first

question may suggest a lack of clearly established law,

there is no authority for the proposition that a

defendant is entitled to qualified immunity whenever

one or more dissenting judges believe qualified

immunity should apply. See Pet. 29 (citing Wilson v.

Layne, 526 U.S. 603, 618 (1999), and Stanton v. Sims,

134 S. Ct. 3, 7 (2013)).

III.

This Case Does Not Present the Question

Whether the Police May Use Deadly Force

To Prevent Third Party Harm, Nor Is

There a Circuit Split on that Question.

Laboring to manufacture a circuit split, Kisela

incorrectly claims that the court of appeals decision

“fail[s] to [c]onsider [p]otential [t]hird-[p]arty [h]arm,”

and thereby creates a circuit split over whether a risk

of serious third-party harm can justify the use of

deadly force. Pet. 12. Both parts of this assertion are

incorrect. First, in this case, the court of appeals

considered third-party harm, hewing to the settled

and obvious principle of law that the police can use

deadly force in the face of a real threat of harm to a

third party. Pet. App. 58–59. Second, there is no circuit

split on whether police may use deadly force to prevent

such harm.

30

A. This Case Does Not Present the Question

Whether a Police Officer May Use Deadly

Force To Prevent Third Party Harm.

This case does not present the question whether

police officers may use deadly force to prevent serious

injury to a third-party—everyone, the panel included,

agrees on the unremarkable proposition that police

may do so. In evaluating the reasonableness of

petitioner’s use of lethal force, the court of appeals

looked to the factors this Court set out to guide this

inquiry in Graham v. Connor, 490 U.S. 386, 396

(1989). Pet. App. 57. Under the second factor of the

Graham inquiry, the Ninth Circuit considered

whether Hughes posed an immediate threat to “the

safety of the officer or others.” Pet. App. 57 (emphasis

added). In applying this standard to the facts of the

case, the court considered Officer Kisela’s stated

concern for Chadwick’s safety, but found that “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 concern.” Pet. App.

58 (quoting Deorle 272 F.3d at 1281 (9th Cir. 2001)).

Because the facts of this case, viewed in the light most

favorable to Hughes, did not present such objective

factors, Corporal Kisela was not entitled to summary

judgment. Pet. App. 59.

Kisela acknowledges, as he must, that the

reasonableness of an officer’s use of deadly force is

judged on the “facts and circumstances of each

particular case.” Pet. 13 (quoting Graham, 490 U.S. at

396). Based on the particular facts of this case, viewed

in the light most favorable to Hughes, the court of

31

appeals reached a fact-bound holding that a

reasonable jury could have found that Hughes did not

pose a serious risk to third parties.

B. There Is No Circuit Split as to Whether

Police Officers May Use Deadly Force To

Prevent Third Party Harm.

The court of appeals decision does not conflict with

the decisions of any other circuit. On the contrary, the

cases from other circuits that Kisela puts forth could

not be more different than this case—they involve a

genuine risk of third-party harm.

Untalan v. City of Lorain, 430 F.3d 312 (6th Cir.

2005), cited in Pet. 17, does not bear any resemblance

to this case. In Untalan, an officer used lethal force

against a suspect who was wrestling for control of a

butcher knife after lunging at and stabbing an officer

with the knife. Id. at 313–14. There is no comparison

between, on the one hand, wrestling with a police

officer for a butcher knife and, on the other, standing

in a yard while holding a kitchen knife at one’s side

and engaging in conversation.

Similarly, in Larsen’s Estate v. Murr, 511 F.3d 1255

(10th Cir. 2008), cited in Pet. App. 16, officers used

deadly force against a man who raised a knife above

his shoulder with the blade pointed outwards. Id. at

1258. When officers warned him that they would shoot

if he did not drop the knife, he advanced toward the

officers. Id.

Mace v. City of Palestine, 333 F.3d 621 (5th Cir.

2003), cited in Pet. 17, fits the pattern of Untalan and

Larsen’s Estate—police shot someone who did not

32

merely hold a weapon, but wielded it in a threatening

manner. In Mace, police officers arrived to the scene

to find a man with bloody hands smashing windows

and brandishing a sword. Id. at 623. The man raised

the sword toward the police, made punching motions

with it, and advanced toward the officers, who had

difficulty retreating due to the close quarters of the

mobile-home park in which the incident took place Id.

at 624–25. This is a far cry from holding a kitchen

knife in one’s yard.

In Thomson v. Salt Lake County, 584 F.3d 1304

(10th Cir. 2009), cited in Pet. 16, the plaintiff was

armed with a gun, not a knife, and he had previously

moved the firearm up and down and aimed it at the

officers. Id. at 1318. Unlike Ms. Hughes, he therefore

posed “an immediate threat to [the officers] or to

others in the neighborhood.” Id.

In Long v. Slaton, 508 F.3d 576, 578–79 (11th Cir.

2007), cited in Pet. 16, a police officer tried to arrest a

man who responded by stealing the officer’s police

cruiser and driving off. The court found the use of force

reasonable based on the unique dangers posed by an

erratic person in control of a police car: “We stress

these facts: Long was mentally unstable; and he had

taken control of not just any vehicle, but a police

cruiser. . . . Different from other vehicles, this fully

marked and fully equipped police cruiser had an even

greater potential for causing—either intentionally or

otherwise—death or serious bodily injury.” Id. at 581.

There is no circuit split here. The court of appeals,

like every other circuit, considered third-party harm.

Viewing the facts in the light most favorable to

33

Hughes, the court of appeals concluded, correctly, that

the circumstances of the shooting did not reveal an

appreciable risk of harm to Chadwick. To manufacture

daylight between the decisions below and the cases

discussed above, the petition resolves disputed facts

against Hughes, assuming, for example, that Kisela

thought she was raising the knife at Chadwick when

he opened fire. Pet. 19.

C. There is No Conflict Between the

Decision Below and the Prior Decisions of

the Ninth Circuit and this Court.

Petitioner’s efforts to invent a conflict between the

prior decisions of the Ninth Circuit and this Court

follow the same faulty logic as his attempt to conjure

a circuit split. Petitioner imagines a serious threat to

Ms. Chadwick by refusing to consider the facts in the

light most favorable to Ms. Hughes. Because the facts

viewed in the light most favorable to Ms. Hughes

present no such risk, the tension petitioner imagines

between the decision below and holdings of this Court

and the Ninth Circuit does not exist.

The Ninth Circuit's decision in Blanford has been

discussed above. See supra § I.C. This Court’s decision

in Scott v. Harris, 550 U. S. 372 (2007), cited in Pet.

15, is also far off the mark. In Scott, the plaintiff led

police on a car chase at speeds topping 85 miles an

hour, evaded pursuit by driving into and colliding with

a police cruiser, and kept going. Id. at 374–75. This

Court held that it was reasonable for a police officer to

bump the fugitive's vehicle from behind so as to

disable it. Id. at 384. The Court summarized a

videotape of the chase as follows:

34

There we see respondent’s vehicle racing down

narrow, two-lane roads in the dead of night at

speeds that are shockingly fast. We see it

swerve around more than a dozen other cars,

cross the double-yellow line, and force cars

traveling in both directions to their respective

shoulders to avoid being hit. We see it run

multiple red lights and travel for considerable

periods of time in the occasional center leftturn-only lane, chased by numerous police cars

forced to engage in the same hazardous

maneuvers just to keep up . . . [W]hat we see on

the video more closely resembles a Hollywoodstyle car chase of the most frightening sort,

placing police officers and innocent bystanders

alike at great risk of serious injury.

Id. at 379–80.

There is no meaningful comparison between an

officer bumping a suspect’s car from behind after the

suspect led police on a Hollywood-style chase, and

shooting a woman who is holding a kitchen knife while

conversing in her own yard.

35

CONCLUSION

The Court should deny the petition.

Respectfully submitted,

DAVID M. SHAPIRO

Counsel of Record

RODERICK & SOLANGE MACARTHUR JUSTICE CENTER

NORTHWESTERN PRITZKER SCHOOL OF LAW

375 E. Chicago Ave.

Chicago, IL 60611

312.503.0711

david.shapiro@law.northwestern.edu

VINCENT LEE RABAGO

VINCE RABAGO LAW OFFICE, PLC

2135 E. Grant Road

Tucson, AZ 85719

520-955-9038

AMIR H. ALI

RODERICK & SOLANGE MACARTHUR JUSTICE CENTER

718 7th Street NW

Washington, DC 20001

(202) 869-3434

amir.ali@macarthurjustice.org

Attorneys for Respondent

DECEMBER 4, 2017