Hughes v. Kisela

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 Kise-la. 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 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 *786must 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, - U.S. -, 134 S.Ct. 2012, 2023, 188 L.Ed.2d 1056 (2014) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (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, 105 S.Ct. 1694, 85 L.Ed.2d 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, — U.S. -, 136 S.Ct. 305, 309, 193 L.Ed.2d 255 (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 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, 131 S.Ct. 2074); see also White v. Pauly, — U.S. -, 137 S.Ct. 548, 551, 196 L.Ed.2d 463 (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.” Mottos 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, 122 S.Ct. 2508, 153 L.Ed.2d 666 (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 standing close by. The policeman draws his weapon and, twice in rapid succession, orders the individual holding *787the 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 prece-dential 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 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 Mil 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 “[ejvery 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,” even where *788that 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, — U.S. -, 134 S.Ct. 1861, 1868, 188 L.Ed.2d 895 (2014) (per curiam). Kisela and two other police officers arrived at Hughes’s residence in response to a “check welfare” call — 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 sáfe 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 reap-proaching. 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 drop the knife.2 Nevertheless, within sec*789onds 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, “[ejvery 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 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 794 (“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 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 pro*790posed 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 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 Blan-ford — repeatedly—that they would shoot him if he did not comply with orders to drop the sword. Id. at 1116-17, 1119. Hughes received no such warning, although such a warning is required “where feasible.” Garner, 471 U.S. at 11-12, 105 S.Ct. 1694. 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 *791threatening 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 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.

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.

. 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, - U.S. -, 135 S.Ct. 1765, 1776-77, 191 L.Ed.2d 856 (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, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), and Brosseau v. Haugen, 543 U.S. 194, 125 S.Ct. 596, 160 L.Ed.2d 583 (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 — precisely what the panel did in this case.

. 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, 105 S.Ct. 1694). 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 im*789portant 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).

. 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, 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.