“Shoot First and Think Later”: Supreme Court Deals Another Blow to Police Accountability

By Carey Wedler

Last week, the Supreme Court dealt another blow to police accountability in the United States.

In a 7-2 ruling in Kisela v. Hughes, a majority of Supreme Court justices decided that police officer Andrew Kisela of the University of Arizona Police Department could not be sued for shooting Amy Hughes, who was holding a knife at the time of the shooting but was not threatening anyone.

In 2010, three officers responded to a call that Hughes was behaving erratically, hacking at a tree using a knife. Hughes ignored Kisela’s command to drop the knife, though she was reportedly calm and did not move to attack anyone. Kisela then shot her four times.

Though after the fact it was revealed Hughes, who has a history of mental illness, had threatened to kill her roommate’s dog over a small debt, the officers did not know this at the time. Nevertheless, despite her calm demeanor, the officers all confirmed they believed she posed a threat.

In an affidavit filed by the roommate and cited a case summary published by Cornell Law, Sharon Chadwick, “she did not feel endangered at any time…Based on her experience as Hughes’ roommate, Chadwick stated that Hughes ‘occasionally has episodes in which she acts inappropriately,’ but ‘she is only seeking attention.’”

Hughes eventually sued Kisela, alleging the use of excessive force, and a 9th circuit court ruled in 2016 that a “rational jury could find that [Hughes] had a constitutional right to walk down her driveway holding a knife without being shot.” But last week, the Supreme Court sided with the officer. The Los Angeles Times summarized how difficult it has become to sue police officers:

Since the Civil War, federal law has allowed people to sue government officials, including the police, for violating their constitutional rights. But in recent years, the Supreme Court has erected a shield of immunity for police and said officers may not be sued unless victims can point to a nearly identical shooting that had been deemed unconstitutionally excessive in a previous decision.

A criticism of the decision by Emma Anderson of the Criminal Law Reform Project that was published by the ACLU discussed the notion of “qualified immunity,” which has become a major factor in the difficulty that comes with holding officers accountable:

Essentially, if you want to sue a police officer who you think violated your constitutional rights, you first have to convince the court that what happened to you was so outrageous that no reasonable person could have thought it was okay.

In her dissenting opinion, Justice Sotomayor argued that “palpably unreason­able conduct will go unpunished” and that the ruling condoned a “shoot first and think later” attitude.

“If this account of [the officer’s] conduct sounds unreasonable,” she wrote, “that is because it was. And yet, the Court … insulates that conduct from liability under the doctrine of qualified immunity.”

As Anderson noted, “qualified immunity has become a misnomer. It should be called what it is, as Justices Sotomayor and Ginsberg did in their dissent from last week’s opinion. It is an ‘absolute shield.’”

Noting that qualified immunity “contributes to the deep deficit in police accountability throughout our country” that disproportionately affects minorities, Anderson concluded:

The result of the court’s decision is clear. Our right to not be unreasonably shot by the police is less protected, and therefore less important, than the court’s interest in shielding police officers from civil liability for their abuses of authority.

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