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In a per curiam opinion dated April 2, 2018, the U.S. Supreme Court found that a police officer who shot a woman suspected of no crime but who was holding a kitchen knife at her side in her own front yard was shielded from a civil suit by qualified immunity. The doctrine of qualified immunity protects government officials from some types of lawsuits arising from the performance of their duties. As national attention has increasingly focused on police shootings, the Supreme Court opinion prioritizes the officer’s view of what happened over the citizen’s, and it will probably make it even more difficult for citizens to recover money damages on claims of excessive force.
In finding the officer was entitled to the protection of qualified immunity, the Supreme Court focused on the question of whether at the time of the shooting his actions violated clearly established law. Finding the officer’s actions did not, the Court reversed the Ninth Circuit Court of Appeals, which in turn had reversed the District Court in granting summary judgment to the officer. The Supreme Court found the Ninth Circuit had misapplied its own precedents and interpreted “clearly established law” too generally. “Qualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” “Police officers are entitled to qualified immunity unless existing precedent ‘squarely governs’ the specific facts at issue.” Applying the Ninth Circuit precedent, the Court found that the officer did not violate the woman’s clearly established Fourth Amendment right not to be subjected to the use of deadly force.
Justice Sotomayor filed a dissent, in which Justice Ginsburg joined. Sotomayor noted that, viewing the facts most favorably to the plaintiff, as the court must on summary judgment, the plaintiff shooting victim “was nowhere near the officers, had committed no illegal act, was suspected of no crime, and did not raise the knife in the direction of [her roommate, standing nearby] or anyone else.” Further, two other responding officers, although they drew their weapons, held their fire, and one “wanted to continue trying verbal commands and see if that would work.” Id. Although the plaintiff did not seem to notice the officers and failed to drop the kitchen knife after two commands, nobody warned her before one officer opened fire. Id. Further, the plaintiff was about six feet from the roommate whom the shooting officer purported to be protecting, “holding the kitchen knife down at her side with the blade pointed away” from her roommate. The record showed that the plaintiff appeared calm and did not verbally threaten anybody. Plaintiff’s roommate testified that she was never in fear of the plaintiff and her kitchen knife.
Based on all the facts in the record, in Justice Sotomayor’s opinion, a jury could find that the officer who shot the plaintiff clearly violated her Fourth Amendment rights by unnecessarily employing deadly force, and that the officer therefore was not immune to civil suit. Applying the analysis for what actions are “objectively reasonable” under Graham v. Connor, Justice Sotomayor observed that the woman the police officer shot was suspected of no crime, did not pose an immediate threat to the safety of the officers or others, and did not resist or evade arrest. Further, less intrusive means were available to the officer, such as use of his Taser. “That two officers on the scene, presented with the same circumstances as [the officer who fired], did not use deadly force reveals just how unnecessary and unreasonable it was for [the officer] to fire four shots at [the plaintiff].” Sotomayor explained that “a body of relevant case law may clearly establish the violation of a constitutional right”, and she argued that the majority had essentially cherry-picked from Ninth Circuit precedent and neglected precedent from other circuits denying the protection of qualified immunity to other officers who used deadly force against a citizen holding a knife non-threateningly. The majority’s decision would immunize from civil suit any law officer not confronting a set of facts identical to those in a previous case, and the majority therefore holds a citizen to a higher burden to overcome an officer’s plea of qualified immunity than the Court’s precedents require. In Justice Sotomayor’s opinion, the majority opinion is part of a disturbing trend denying injured citizens their day in court: it “tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.” The doctrine of qualified immunity appears to be expanding, but potential plaintiffs should consult with an attorney to assess their ability to recover money damages in cases of police brutality and excessive force.
 Kisela v. Hughes, No. 17-467, slip op. at 4 (U.S. Apr. 2, 2018).
 Id. at 5.
 Id. at 9.
 Id. at 10.
 Id. at 11.
 490 U.S. 386 (1989).
 Id. at 14.
 Id. at 15 (citing Ashcroft v. al-Kidd, 563 U.S. 731 (2011).
 Id. at 23.