Supreme Court Clarifies Qualified Immunity Applies to Use of Force When Protecting Third Parties

 On April 2, 2018, the United States Supreme Court clarified that peace officers are permitted to use deadly force in order to protect third parties.

In Kisela v. Hughes, three Tucson, Arizona police officers responded to reports of a woman hacking at a tree with a kitchen knife and acting erratically. Upon arriving on the scene, the officers spotted a woman, later identified as Sharon Chadwick, standing in the driveway of a nearby house. A chain-link fence separated Chadwick from the three officers.

Amy Hughes came out of that same house carrying a large knife at her side. She matched the description of the woman who had been seen hacking a tree. Hughes walked toward Chadwick. She stopped no more than six feet from her.

All three officers drew their guns. At least twice they told Hughes to drop the knife. Chadwick said “take it easy” to both Hughes and the three officers. Although Hughes appeared calm, she failed to acknowledge the officers’ presence or drop the knife.

The top bar of the chain-link fence blocked Officer Kisela’s line of fire. He dropped to the ground and shot Hughes four times through the fence. Less than a minute transpired from the moment the officers saw Chadwick to the moment Kisela fired shots.

All three officers jumped the fence, handcuffed Hughes, and called paramedics—who transported her to a hospital. At the hospital, she was treated for non-life-threatening injuries.  Afterwards, Hughes sued Officer Kisela under 42 U.S.C. section 1983, alleging excessive force in violation of her constitutional rights.

While underscoring the need for officers to make spit-second decisions, the Court declined to engage in the second-guessing of officers on the scene. The Court specifically noted that although the officers themselves were in no apparent danger, all three of the officers said at the time of the shooting they subjectively believed Hughes to be a threat to Chadwick. To that end, Officer Kisela was entitled to the defense of qualified immunity

This is an important case for California peace officers. It underscores that officers are entitled to qualified immunity when utilizing deadly force in order to protect third-parties.  

Police Department Social Media Policy Found Unconstitutional

Liverman v. City of Petersburg (2016) 844 F.3d 400, involved two police officers who were disciplined based on two posts they made on Facebook. The two officers made posts that were critical of the administration’s practice of promoting inexperienced police officers into management positions. The City’s policy prohibited employees from: 1) making comments that would reflect poorly upon the Department or the City and 2) making negative comments about the operations of the Department. The first policy attempted to qualify itself by essentially stating that the First Amendment would still be observed and officers could comment on issues of general or public concern so long as those comments did not interfere with working relationships, efficient work flow, or undermine public confidence in the Officers.

The comments were purportedly divisive within the department and some patrol officers sought transfers away from the two officers. The two officers were given an oral reprimand and six months probation, but were told that the discipline would not affect their eligibility for promotion. However, several weeks later, a department chief changed the qualifications for promotion such that officers on probation were prohibited from promoting. When the two officers sent notice of their intent to challenge the disciplinary action, they were immediately subjected to several additional investigations which would have resulted in termination. One of the officers retired before he could be terminated.

The two officers contested the social media policy in civil court arguing that the policy violated the First Amendment, and thus, their discipline and the subsequent retaliation should be overturned. The Court recited First Amendment law stating that public employees generally do not lose their rights to speak on matters of public concern, but the speech must be balanced against the interest of the state in promoting the efficiency of the public services it provides. The Court found that the social media policy at issue explicitly restricted speech criticizing the department. 

The Court found it significant that the officers chose Facebook as their forum of choice which the court compared to writing into a newspaper's opinion section. By choosing Facebook, they were clearly showing an intention to communicate their concerns to the public, outside of the employment context. The Department did not establish a significant enough reason other than general concerns of divisiveness as to why such speech should be restricted. The “negative comments” policy did not contain the qualification which would permit comment on matters of public concern and was thus, unconstitutionally overbroad. Accordingly, the discipline against the employees was overturned and the Chief who imposed the discipline was denied qualified immunity because the law in this area was well-established.

Supreme Court Shoots Down Excessive Force Case

On November 9, 2015, the Supreme Court ruled that qualified immunity protected a state trooper who shot and killed a dangerous driver in Mullenix v. Luna.

On March 23, 2010, Sergeant Randy Baker of the Texas Police Department followed Israel Leija to a drive-in restaurant with a warrant for his arrest. When Sergeant Baker approached Leija's vehicle and told him he was under arrest, Leija sped off and a high speed chase ensued. During the case, Leija called dispatch and threatened to shoot any officer he saw if they did not abandon pursuit. Leija was also intoxicated.

State Trooper Chandrin Mullenix also responded to the call. While other officers set up three sets of spike strips in hopes of disabling Leija's vehicle, Mullenix called dispatch to propose shooting to stop Leija's car. Mullenix's supervisor instructed him to "stand by" and "see if the spike strips worked first." However, it was unclear whether Mullenix heard his supervisor's command.

Once Mullenix spotted Leija's vehicle coming up the overpass, Mullenix fired six shots. Four bullets hit Leija in his upper body, killing him.

The issue for the Court was whether Mullenix violated clearly established law. Qualified immunity protects "all but the plainly incompetent and those who knowingly violate the law." The Court found no clearly established law barred Mullenix from claiming qualified immunity. As such, Mullenix was entitled to summary judgment against plaintiffs' claim of excessive force in violation of the Fourth Amendment.

In the sole dissent, Justice Sotomayor argued Mullenix should have waited to see if the spike strips worked before shooting. The majority of the Court was not persuaded. The Court emphasized that spike strips don't always work and officers manning those strips are vulnerable to gunfire. According to the majority, Sotomayor's reasoning was in error. Namely, it is not for the courts to decide whether an officer should use one tactic over another.

Although the Court refrained from considering what tactics and officer should use, many agencies' use of force policies do. Some agencies are now moving toward banning the practice of shooting at cars to disable the vehicle. In such cases, an officer may be immune from civil liability, but can still be punished by the department for insubordination or violation of policy.

Court Rules No Qualified Immunity for Officer Accused of Deleting Video

On August 5, 2014, a U.S. District Court for the Eastern District of California held in Crago v. Leonard that an officer was not entitled to qualified immunity in a First Amendment lawsuit. The plaintiff, a probationer, alleged the officer violated her First Amendment rights when he did not allow her to record a search.

The circumstances in this case began when an officer received information that the plaintiff stole metal and a vehicle battery. The officer knew the plaintiff was on searchable probation and went to her house. He found her digging through her purse in the garage. He searched her purse and found a pipe and methamphetamine. The plaintiff alleged the officer seized her laptop computer after she told him she was recording the search. She further alleged the officer deleted the recording and said recording was not allowed.

Qualified immunity applies unless the official's conduct violated a clearly established constitutional right. The "First Amendment right to film matters of public interest" encompasses an individual's right to record police officers in the course of their duties. Other courts have held police officers may refuse recording if it interferes with the performance of those duties. However, no evidence was presented to the court to show the recording in this case interfered with the officers duties. As such, the court found the officer failed to establish his entitlement to qualified immunity.