Police Officer Immunity in Shooting Cases

April 23, 2018
Jennifer Pahre from the University of Illinois College of Law

Jennifer Pahre

University of Illinois College of Law

In May of 2010, someone in Tucson, Arizona called 911 to report that a woman was hacking at a tree with a kitchen knife.  This call would ultimately lead to an important new Supreme Court Case, Kisela v. Hughes.

Police officers Kisela and Garcia responded to the 911 call.  The caller flagged them down, gave them a description of the woman, and said the woman had been acting erratically.  A third police officer arrived by bicycle, so three officers were on the scene, looking for the woman with the knife.

Then, Officer Garcia saw Sharon Chadwick standing next to a car in the driveway of a nearby house.  The house and its driveway were behind a locked chain link fence.  A second woman, Amy Hughes, came out of the same house carrying a kitchen knife at her side.  Ms. Hughes’ appearance matched the description of the woman the officers were looking for.  She walked towards Ms. Chadwick and then stopped, about six feet away.    

All three officers drew their guns.  They could not gain direct physical access to Ms. Hughes because of the locked gate, and they were worried that Ms. Hughes would use her knife on Ms. Chadwick.  Ms. Chadwick and Ms. Hughes both appeared calm; Ms. Chadwick saw the officers and said “take it easy.”  The officers told Ms. Hughes to drop her knife, but she did not acknowledge the officers’ presence and did not drop the knife.  So, Officer Kisela fired his revolver four times at Ms. Hughes.  Less than a minute had elapsed from the time the officers saw Ms. Chadwick to the time Ms. Hughes was shot. 

The officers later learned that Ms. Hughes and Ms. Chadwick were roommates, and that Ms. Hughes had a history of mental illness.  She had become upset because Ms. Chadwick owed her $20, and so Ms. Chadwick had walked outside to get $20 from her car.  

Ms. Hughes recovered from her injuries, and then filed a complaint against Officer Kisela.  She claimed that the officer had used excessive force in violation of the Constitution’s Fourth Amendment.

Following a difficult procedural history, the Supreme Court accepted review.  The Court found that Officer Kisela could not be liable for the claim of excessive force.  He was entitled to qualified immunity, which attaches when an official’s conduct does not violate clearly-established statutory or constitutional rights.   The Court said this immunity protects “all but the plainly incompetent or those who knowingly violate the law,” and that police officers are entitled to immunity unless existing precedent indicates it should not apply. 

There was a vigorous dissent which argued that there should not be immunity for Officer Kisela’s shooting.  At the time of the call, Ms. Hughs had not committed a crime, had not been accused of committing a crime, and while on the scene, the officers saw no criminal activity.  Deadly force is not appropriate where a woman is found holding a kitchen knife at her side, not offering violence to anyone.  And escalating to gunshots when Officer Kisela had a Taser was against protocol. 

Of course, we want our police officers to be free to act for the good of society.  We cannot hamstring law enforcement operations by subjecting them to critical review with perfect hindsight.  Dangerous situations can quickly escalate beyond any preparation.  But our officers also should not overstep: they should not harm people who are themselves intending no harm.  While they serve and protect us under the law, they are also bound by oath to uphold the law.  As Supreme Court Justice Earl Warren said, “The police must obey the law while enforcing the law.”