In May of 2010, Amy Hughes stood in her backyard in Tuscon, Arizona and was shot four times by Police Cpl. Andrew Kisela. A 911 caller had reported seeing Hughes hacking at a tree with a kitchen knife in her own backyard. Three officers from the University of Arizona Police Department arrived on the scene and saw Hughes wielding the knife, walking towards her roommate. Hughes did not make any threatening movements, and Hughes’ roommate later said that she had not felt endangered at any time. Nonetheless, two of the officers drew their guns and told Hughes to drop the knife. Hughes later said that she did not hear the command. Kisela never warned Hughes that she would be shot for not dropping the knife and fired his gun at Hughes four times. Hughes survived the gunshots and filed suit for $150,000 in damages against Kisela for using excessive force, in violation of the Fourth Amendment.


While Hughes survived the shooting, many who are victims of police shootings do not. In the past several years, about 10% of fatal police shootings have involved victims who were unarmed or not known to have possessed a weapon. According to a study conducted by VICE News of 47 of the largest police departments, 2,720 people were shot by police and survived from 2010-2016. Of these, 20 percent were unarmed.


The district court ruled in favor of Kisela, but the U.S. Court of Appeals for the Ninth Circuit reversed. The Ninth Circuit analogized to a 1992 FBI standoff at Ruby Ridge, where a sniper was found to have acted unconstitutionally when he shot a man in the back while the man was retreating. The Ninth Circuit found Kisela’s actions to be similarly unconstitutional.


This month, on April 2, 2018, the Supreme Court reversed the Ninth Circuit’s ruling in an unsigned per curiam opinion. In the rare summary reversal, the Court held that even if Kisela violated the Fourth Amendment, about which the Court remained skeptical, Kisela acted reasonably under the circumstances. The rights Kisela may have violated were not clearly established and he therefore enjoyed qualified immunity under 42 U.S.C. § 1983. Admonishing the Ninth Circuit, the Court wrote that it had “repeatedly told courts—and the Ninth Circuit in particular—not to define clearly established law at a high level of generality.” Unless the rights were sufficiently definite that any reasonable official in the defendant’s shoes would have perceived that he was violating them, the official cannot be held personally liable. In this case, the Court found the rights that were purportedly violated to be insufficiently defined so as to put the officer on notice. The Court reasoned that unless the rights are clearly defined and the standard is scrupulously applied, police officers will not be able to know what they are or are not permitted to do.


Justice Sonia Sotomayor dissented, joined by Justice Ruth Bader Ginsburg. Sotomayor wrote that the majority decision “tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.” The majority’s ruling tends to use qualified immunity as an “absolute shield,” excusing officers from all liability. Sotomayor emphasized the appropriateness of the Ninth Circuit’s analogy to Ruby Ridge, saying that identical facts are unnecessary to establish that the governing law should be the same. She wrote that “Kisela violated Hughes’ clearly established Fourth Amendment rights by needlessly resorting to lethal force.” At the very least, the case deserved the benefit of a briefing or oral argument on the merits to resolve disputed facts and law.


This is the fifth such summary reversal in the past four years. Although there appeared to have been unsettled legal and factual questions, the Court saw fit to issue a summary reversal to purportedly correct a lower court’s error and preclude a jury deliberation. On the whole, summary reversals are unusual and typically reserved for cases in which the law is settled and the facts are undisputed. However, qualified immunity appears to be the exception. A paper published in 2016 found that since 2001, the Supreme Court found a defendant to be entitled to qualified immunity in sixteen of eighteen opinions addressing whether a constitutional right was clearly established. Of those sixteen cases, more than one-third were summary reversals.  The Court has not ruled in favor of a plaintiff making a claim under § 1983 in over a decade.


Disturbingly, the Court appears eager to accept cases that allow it to bolster the doctrine of qualified immunity. This is a particularly notable undertaking by the Court because many of the cases involving qualified immunity are highly fact-sensitive. Why would the Court decide to hear these cases, which supposedly involve some thorny subject that the lower courts have not appropriately grappled with, but then grant qualified immunity almost every time? Will Baude writes in The Volokh Conspiracy, “the Court treats qualified immunity…as an area of law so important that it is worth deciding a series of factbound cases that would never earn the Court’s attention if they involved a different legal issue. Moreover, the Court seems uninterested or unable to find such cases where a lower court wrongly denied relief to a person whose constitutional rights were violated.”


One explanation is simply that the Court is adamant in ensuring that lower courts correctly apply the qualified immunity doctrine correctly. The doctrine’s application to law enforcement and governance might be an area particularly deserving of the Court’s scrupulous attention, despite the Court’s limited docket.


Another explanation is that by addressing these fact-specific cases, the Supreme Court distinguishes between the “conduct rule” and the “decision rule” governing police use of force. The Court can both uphold the Constitution’s background rule governing conduct, while simultaneously crafting a decision rule regarding the remedy imposed for violations of the conduct rule. In this case, the conduct rule prohibits use of excessive force, but the decision rule, applied ex post when the police violate the conduct rules, is qualified immunity. Theoretically, this ex post adjustment via qualified immunity doctrine allows some leniency for a profession that is in the business of making difficult decisions about use of force.


However, case after case of excessive force suggest that the police rely on the decision rule of qualified immunity to excuse their biased actions that wreak havoc on minority communities.  This upfront deterrence of force, followed by behind-the-scenes adjustment of remedies based on an analysis of the facts, doesn’t work if the Court grants qualified immunity every time. Police officers will come to rely on adjustments that are predictably carried out in their favor.


Whichever explanation rings true, the strengthening of the qualified immunity doctrine exacerbates the lack of police accountability.


Earlier this year, the CATO Institute organized a policy forum to mark the beginning of its “campaign to challenge and roll back qualified immunity, as our distinguished panel discusses the law and history of the doctrine, its effect on civil rights litigation, and the implications for police accountability.” Legal doctrine may not seem a ready candidate for sparking a movement, but the qualified immunity doctrine captures the struggles that civil rights advocates have been facing regarding racial profiling, police brutality, and criminalization of race. Cases like the one of Amy Hughes deserve a spotlight because they illustrate the urgency of tackling doctrinal issues that otherwise remain confined to academic circles.