Ninth Circ. Revives Excessive Force Claims Against Campus Officer

PHOENIX (CN) – A Ninth Circuit panel on Monday revived claims that a University of Arizona police officer used excessive force when he fired four shots at a woman holding a knife near campus, finding that a reasonable jury could find in the woman’s favor.

In 2011, Amy Hughes sued Andrew Kisela, then a corporal with the University of Arizona Police Department.

According to court records, Kisela was called out on a welfare check after Hughes was reportedly stabbing a tree with a knife on her property near the University of Arizona campus. When she did not comply with requests from Kisela and other officers to drop the knife, he fired four shots at her through a chain-link fence, hitting her.

U.S. Senior District Judge Frank Zapata found Kisela did not use excessive force against Hughes during the incident, and had immunity against her claims. The Pima County Attorney’s Office also found Kisela acted reasonably, since Hughes was standing with the knife in her hand near her friend, another woman.

Vince Rabago, an attorney for Hughes, argued before a Ninth Circuit panel this past September that Kisela could have used a Taser during the incident if he was concerned about the safety of Sharon Chadwick, the woman standing near Hughes.

“Officer Kisela already viewed it as looking at an armed suspect,” Rabago told the panel. “Immediately upon seeing the knife without any further evidence, he draws the gun and yells ‘Knife.'”

On Monday, the Ninth Circuit agreed with Rabago, finding the evidence presented did not support Kisela’s perception that Hughes was an “immediate threat.”

“The three officers present at the time of the shooting were responding to a ‘check welfare’ call. No crime was reported,” wrote U.S. District Judge William Sessions, sitting by designation from Vermont, on behalf of the panel.

The panel found a jury may determine Kisela should have recognized Hughes was exhibiting signs of mental illness.

“Upon arriving at the scene, the reporting party informed Cpl. Kisela that this same person was acting erratically,” Sessions wrote. “Just prior to the shooting, Cpl. Kisela himself recalled Ms. Hughes ‘stumbling’ toward Ms. Chadwick.”

The court also found that Kisela should not be granted immunity for his actions.

“The facts, viewed in Ms. Hughes’s favor, present the police shooting a woman who was committing no crime and holding a kitchen knife,” Sessions wrote. “While the woman with the knife may have been acting erratically, was approaching a third party, and did not immediately comply with orders to drop the knife, a rational jury – again accepting the facts in the light most favorable to Ms. Hughes – could find that she had a constitutional right to walk down her driveway holding a knife without being shot.”

 

In an interview, Rabago said he applauds the court’s decision.

“We think it is a victory for both civil rights and common sense,” he said.

Kisela escalated the situation from the moment he intercepted the “check welfare” call, according to the attorney.

“You can’t just shoot first and ask questions later. It should never have happened,” he said.

When officers arrived on the scene, the situation escalated from “zero to 60.”

“They didn’t even announce that they were the police, that is how fast it happened,” the attorney said. “The knife was down by her side, and the other officers saw that this knife was down by her side.”

Hughes has suffered physical and emotional trauma since the shooting occurred.

“One of the bullet fragments came out of her back two years ago. She is still in a lot of pain,” Rabago said.

An attorney for Kisela declined to comment.

According to news reports, Kisela was barred from working as a police officer in Arizona in 2014, after he was fired by the department for secretly recording a conversation between two police dispatchers.