Campus Cop Denied Rehearing at Ninth Circuit

PHOENIX (CN) — The Ninth Circuit Court on Tuesday denied a motion for a rehearing en banc for an Arizona campus policeman cop who claimed qualified immunity after shooting a mentally ill woman four times in her driveway.

Former University of Arizona Police Department Corporal Andrew Kisela was granted qualified immunity by the U.S. District Court for a 2010 incident in which he responded to a welfare check call about a woman stabbing a tree near the University of Arizona.

Kisela and other officers found Amy Hughes walking in the yard of her home with a 12-inch kitchen knife in her hand. The officers repeatedly told her to drop the knife. When she did not, Kisela fired four shots through a chain-link fence surrounding the home, hitting Hughes. She survived.

In 2016, Ninth Circuit Judges Ronald Gould and Marsha Berzon and U.S. District Judge William Sessions III found on appeal that Kisela had used excessive force and should not be granted immunity.

Sessions wrote: “The facts, viewed in Ms. Hughes’s favor, present the police shooting a woman who was committing no crime and holding a kitchen knife. 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.”

Kisela sought a rehearing en banc, but the majority of the nonrecused judges refused.

In concurrence, Judges Berzon and Gould reiterated the reasons for the panel’s reversal, citing Ninth Circuit precedent in Santos v. Gates, that “[b]ecause [the question of excessive force] nearly always requires a jury to sift through disputed factual contentions, and to draw inferences therefrom, we have held on many occasions that summary judgment or judgment as a matter of law in excessive force cases should be granted sparingly.”

Ninth Circuit Judge Sandra Segal Ikuta dissented from the denial of rehearing en banc, finding that the panel’s opinion was contrary to U.S. Supreme Court direction on qualified immunity in the Fourth Amendment context. Ikuta was joined in dissent by Ninth Circuit Judges Alex Kozinski, Richard Tallman, Jay Bybee, Consuela Callahan, Carlos Bea, and N. Randy Smith

Ikuta wrote: “Rather than ask the correct question — whether Officer Kisela’s split-second decision in ‘the specific context of the case’ was ‘plainly incompetent’ or ‘knowingly violate[d] the law’ — the panel opinion defines the ‘clearly established right’ here at the highest level of generality: the right to be free of excessive force.”

Ikuta found that in violation of the Supreme Court’s “repeated directive not to frame clearly established law in excessive force cases at too high a level of generality.”

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