Hughes v. Kisela

• Decision Date: 28 November 2016
• Docket Number: No. 14-15059,14-15059
• Citation: 862 F.3d 775
• Parties: Amy HUGHES, Plaintiff-Appellant, v. Andrew KISELA, Corporal, 0203; individually and in his official capacity, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

862 F.3d 775

Amy HUGHES, Plaintiff-Appellant,
v.
Andrew KISELA, Corporal, 0203; individually and in his official capacity, Defendant-Appellee.

No. 14-15059

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 12, 2016 San Francisco, California
Filed November 28, 2016
Amended June 27, 2017

Vince Rabago (argued), Stacy Scheff, and Norma Kristine Rabago, Vince Rabago Law Office PLC, Tucson, Arizona, for Plaintiff-Appellant.

Robert R. McCright (argued), Assistant Attorney General; Mark Brnovich, Arizona Attorney General; Office of the Attorney General, Tucson, Arizona; for Defendant-Appellee.

Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and William K. Sessions III,^** District Judge.

862 F.3d 778

Concurrence in Order Denying Petition for Rehearing En Banc;

Dissent to Order Denying Petition for Rehearing En Banc;

OPINION

SESSIONS, District Judge:

After receiving a report of a person hacking at a tree with a knife, three members of the University of Arizona Police Department (UAPD) responded to the scene. Upon their arrival, the officers saw Plaintiff Amy Hughes carrying a large kitchen knife. Ms. Hughes then began to walk toward another woman, Sharon Chadwick, at which point the police yelled for her to drop the knife. Ms. Hughes did not comply. Ms. Chadwick has submitted an affidavit in which she describes Ms. Hughes's demeanor at the time as composed and non-threatening. Multiple witnesses attest that Ms. Hughes never raised the knife as she neared Ms. Chadwick. Unable to approach the two women because of a chain-link fence, defendant and UAPD Corporal Andrew Kisela shot Ms. Hughes four times.

Ms. Hughes brings suit under 42 U.S.C. § 1983 claiming excessive force in violation of her constitutional rights. The district court granted summary judgment in favor of Corporal Kisela, concluding that his actions were reasonable and that he was entitled to qualified immunity. The facts when viewed in the light most favorable to Ms. Hughes do not support the district court's decision. We reverse and remand for further proceedings.

FACTUAL BACKGROUND

On May 21, 2010, Corporal Kisela and UAPD officer-in-training Alex Garcia were monitoring the Tucson Police Department radio when they heard a "check welfare" call regarding a woman reportedly hacking at a tree with a large knife. The officers drove to the location and were told by the reporting party that the person with the knife had been acting erratically. UAPD Officer Lindsay Kunz also responded to the call.

The following events occurred in less than one minute. Soon after the three officers arrived, Amy Hughes emerged from her house carrying a large kitchen knife. Sharon Chadwick was standing outside the house in the vicinity of the driveway. According to Ms. Chadwick's affidavit, Ms. Hughes was composed and content as she exited the house, holding the kitchen knife down to her side with the blade pointing backwards. Ms. Chadwick submits that she was never in fear, and did not feel that Ms. Hughes was a threat.

As Ms. Hughes approached Ms. Chadwick, the officers each drew their guns and ordered her to drop the knife. Although Corporal Kisela contends that the officers yelled numerous time for Ms. Hughes to drop the knife, Ms. Chadwick recalls hearing only two commands in quick succession. Ms. Hughes did not drop the knife and continued to move toward Ms. Chadwick. Corporal Kisela recalls seeing Ms. Hughes raise the knife as if to attack. Officers Garcia and Kunz later told investigators that they did not see Ms. Hughes raise the knife.

A chain link fence at the edge of the property prevented the officers from getting any closer to the two women. Because the top of the fence obstructed his aim, Corporal Kisela dropped down and fired four shots through the fence. Each of the shots struck Ms. Hughes, causing her to fall at Ms. Chadwick's feet. Her injuries were not fatal.

In an interview with police after the shooting, Ms. Chadwick explained that she and Ms. Hughes lived together, and that

862 F.3d 779

she had managed Ms. Hughes's behavior in the past. She also informed police that Ms. Hughes had been diagnosed with bipolar disorder and was taking medication. Ms. Chadwick believes that Ms. Hughes did not understand what was happening when the police yelled for her to drop the knife. She also believes that Ms. Hughes would have given her the knife if asked, and that the police should have afforded her that opportunity.

STANDARD OF REVIEW

A district court's grant of a motion for summary judgment is reviewed de novo. Colwell v. Bannister , 763 F.3d 1060, 1065 (9th Cir. 2014). "Summary judgment is appropriate only ‘if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.’ " Stoot v. City of Everett , 582 F.3d 910, 918 (9th Cir. 2009) (quoting Fed. R. Civ. P. 56(c) ). In reviewing a summary judgment ruling, we draw all reasonable inferences in favor of the non-moving party. Galvin v. Hay , 374 F.3d 739, 745 (9th Cir. 2004). We are obligated to construe the record in the light most favorable to the party opposing summary judgment. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). We review an officer's entitlement to qualified immunity de novo. Glenn v. Washington Cty. , 673 F.3d 864, 870 (9th Cir. 2011).

DISCUSSION

I. Excessive Force

When evaluating a Fourth Amendment claim of excessive force, courts ask "whether the officers' actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them." Graham v. Connor , 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). This inquiry "requires a careful balancing of ‘the nature and quality of the intrusion on the individual's Fourth Amendment interests' against the countervailing governmental interests at stake." Id. at 396, 109 S.Ct. 1865 (quoting Tennessee v. Garner , 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) ). "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation." Id. at 396–97, 109 S.Ct. 1865. Reasonableness therefore "must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. at 396, 109 S.Ct. 1865.

The strength of the government's interest in the force used is evaluated by examining three primary factors: (1) "the severity of the crime at issue," (2) "whether the suspect poses an immediate threat to the safety of the officers or others," and (3) "whether [s]he is actively resisting arrest or attempting to evade arrest by flight." Id. (citing Garner , 471 U.S. at 8–9, 105 S.Ct. 1694 ). The " ‘most important’ factor under Graham is whether the suspect posed an ‘immediate threat to the safety of officers or third parties.’ " George v. Morris , 736 F.3d 829, 838 (9th Cir. 2013) (quoting Bryan v. MacPherson , 630 F.3d 805, 826 (9th Cir. 2010) ).

The factors identified in Graham are not exclusive. See Bryan , 630 F.3d at 826. When assessing the officer's conduct, a court must examine "the totality of the circumstances and consider ‘whatever specific factors may be appropriate in a particular case, whether or not listed in Graham .’ " Id. (quoting Franklin v. Foxworth , 31 F.3d 873, 876 (9th Cir. 1994) ). Other

862 F.3d 780

relevant factors may include the availability of less intrusive force, whether proper warnings were given, and whether it should have been apparent to the officer that the subject of the force used was mentally disturbed. See, e.g. , Bryan , 630 F.3d at 831 ; Deorle v. Rutherford , 272 F.3d 1272, 1282–83 (9th Cir. 2001). With respect to the possibility of less intrusive force, officers need not employ the least intrusive means available so long as they act within a range of reasonable conduct. See Scott v. Henrich , 39 F.3d 912, 915 (9th Cir. 1994).

In this case, when viewing the facts in the light most favorable to Ms. Hughes, the record does not support Corporal Kisela's perception of an immediate threat. Officer Garcia told Tucson police that Ms. Hughes did not raise the knife and did not make any aggressive or threatening actions toward Ms. Chadwick. Officer Kunz similarly did not see Ms. Hughes raise her arm. Ms. Chadwick describes Ms. Hughes as having been composed and non-threatening immediately prior to the shooting.¹

Corporal Kisela was undoubtedly concerned for Ms. Chadwick's safety. He had received a report of a person with a knife acting erratically, and soon thereafter saw that same person still holding a knife and approaching another individual. In some situations, "[i]f the person is armed ... a furtive movement, harrowing gesture, or serious verbal threat might create an immediate threat." George , 736 F.3d...