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.  

Supreme Court Overturns 9th Circuit Anti-Officer Use of Force Rule

In County of Los Angeles v. Mendez et al., the United States Supreme Court overruled the Ninth Circuit to put an end to a rule that let people bring lawsuits against officers even when the officers' use of force was reasonable.  Under the so-called "Provocation Rule," officers whose use of force is deemed reasonable, could still be held liable if they did something else, in violation of the 4th Amendment, to make the suspect respond in a way that required force.  The Supreme Court unanimously rejected this theory.

In the Mendez case, two deputies were looking for a wanted parolee when they entered a shack in the backyard of a home without knocking or announcing.  They did not have a warrant to enter the shack. It turned out Mendez lived in the shack.  Mendez got up with a gun in his hand when the officers entered and the officers reasonably believed their lives were in danger and fired in self-defense.  Mendez, who survived, sued, arguing that even if it was reasonable for the officers to shoot him, they should still be liable since they did not have a warrant to search his shack.  The Ninth Circuit agreed, applying its "Provocation Rule."

The Supreme Court, however, held, "The rule’s fundamental flaw is that it uses another constitutional violation to manufacture an excessive force claim where one would not otherwise exist.”  The Court explained "the provocation rule... instructs courts to look back in time to see if a different Fourth Amendment violation was somehow tied to the eventual use of force, an approach that mistakenly conflates distinct Fourth Amendment claims." As a result, the Court concluded, "the provocation rule is incompatible with this Court's excessive force jurisprudence."

Fair Share Fees Safe After 4-4 Decision in Friedrichs v. CTA

In a brief, one-sentence ruling, the United States Supreme Court upheld fair share fees in California.  In Friedrichs v. California Teachers Association, a teacher who benefited from the contract CTA negotiated, asserted a right to "free ride" and pay nothing to the union.  But courts have long decided all employees who benefit from a union contract have to pay a fair share, even if they opt out of union membership.  In California, PERB has detailed regulations for how public sector unions determine and charge these fair share fees.

The Court's ruling stated, "The judgment is affirmed by an equally divided Court."  Initially, many expected the Court to rule against labor in a 5-4 decision, but the death of Justice Scalia resulted in a 4-4 tie among the justices.  The ruling means the decision by the Ninth Circuit Court of Appeals stands and unions may continue to charge fair share fees.

Supreme Court to Decide Challenge to CTA's Fair Share Fees

On June 30, 2015, the United States Supreme Court agreed to hear a constitutional challenge to the California Teachers Association's ability to collect fair share fees from non-members who benefit from CTA contracts.

Fair share fees, also called agency fees, are fees paid by employees who benefit from a union contract, but opt out of full membership.  Many unions, particularly in public safety, have voluntary membership rates above 99%.  But other unions have lower voluntary member rates for a variety of reasons and rely on fair share fees to finance contract negotiations and other core union activities.

Courts have long considered fair share fees constitutional in the public sector since the Supreme Court's 1977 decision Abood v. Detroit Bd. Of Ed., 431 U.S.209, 232.  But courts require unions who collect them to divide their core labor activities from other other activities and assess a fair share fee that only covers the cost of core activities.  In California, these rules are part of PERB's regulations. They require unions to give non-members written notice about agency fees and, depending on their size, prepare audited financial statements.  In this way, the courts balance the rights of non-members with the needs of the unions that provide critical services.

But the Supreme Court indicated recently it may change that balance and let non-members free ride on union benefits.  Last year, in Harris v. Quinn, the Supreme Court held the First Amendment prohibited fair share fees from some types of organized workers.  In the opinion, the Court disparaged fair share fees and invited another challenge.  But that case involved home health care workers who did not have a traditional union-member relationship and did not apply to other types of employees.  Now, the Court will hear a direct challenge to fair share fee requirements under California's regulatory scheme in its October term.