Excessive use of force: where decisions made in seconds are scrutinized for years
The truth is that only those officers, under those circumstances, at that scene, on that day, can truly account for both what was and was not reasonable.
Officers Andrew Kisela and Alex Garcia were on patrol near the University of Arizona one afternoon in May2010, when they received a “check on welfare” call over their radio. All they had been told was that someone had been “hacking a tree with a kitchen knife.” Both officers responded to the call.
As the officers drove through the neighborhood, they were flagged down by the person who had called 911. The caller gave the officers a minimal description of “the woman with the knife” and vaguely told the officers that she “had been acting erratically.” Right about that time, a third officer, Lindsay Kunz, arrived on her bicycle.
Officer Garcia then saw a woman standing next to “a car in the driveway of a nearby house.” This woman would later be identified as “Sharon Chadwick.” Separating the officers from Chadwick was a chain-link fence with a locked gate. What happened next would take place quickly and in a matter of seconds.
Immediately after Garcia saw Chadwick, another woman emerged from the house carrying a large knife. The woman marched towards Chadwick, walking within six feet of her. The woman with the knife, who would later be identified as Amy Hughes, matched the description of the woman who had been hacking a tree.
In a matter of seconds, all three officers drew their guns and pointed at Hughes, commanding her to drop the knife at least twice. Hughes did not comply with or acknowledge the officers’ commands. There was a bar at the top of the chain-link fence that was obstructing the sight of Officer Kisela, so he dropped to the ground, and shot Hughes four times through the fence. Officers Garcia and Kunz then jumped the fence, handcuffed Hughes, and called paramedics. Hughes was taken to the hospital where she was treated for non-life-threatening injuries.
It would not be until the discovery stage of the lawsuit brought against Officer Andrew Kisela by Amy Hughes that the surrounding details of that fateful encounter would be made clear. Eventually, the officers would learn that Hughes and Chadwick were roommates, and that Hughes suffered from a history of illness. That particular day, Hughes had been in an argument with Chadwick over money. Hughes had become angry, and had threatened to kill Chadwick’s dog, Bunny, if Chadwick did not give her $20. Later, Chadwick had come home to find Hughes holding “Bunny in one hand and a kitchenknife in another.” Hughes threatened the dog, so Chadwick went outside to her car to retrieve the money for Hughes. That is when Officers Garcia, Kisela, and Kunz all arrived.
The lawsuit, Kisela v. Hughes, would be a 42 U.S.C. § 1983 claim against Kisela for alleged use of excessive force in violation of the Fourth Amendment, that is, until the Supreme Court of the United States would bring it to an end.
The United States Federal District Court for the District of Arizona had granted defendant’s motion for summary judgment. That ruling was reversed by the United States Court of Appeals for the Ninth Circuit. Defendant filed a writ of certiorari to the United States Supreme Court, which granted it.
The per curiam opinion of the Supreme Court reversed the Ninth Circuit’s decision, effectively granting defendant’s motion for summary judgment, and allowing the case to be dismissed. In its decision, the Court reasoned that there had been no violation of a Constitutional right, and so Hughes had no recourse against Officer Kisela.
In order for Hughes to have been able to sue Kisela, Hughes had to show that Kisela did not use reasonable force under the circumstances when he shot her four times. This standard, which is used to determine whether a police officer used excessive force, is an objective standard. The Supreme Court has articulated that when conducting such an analysis, careful attention must be given to the specific facts and circumstances of the case at issue, including whether the suspect posed an immediate threat to the safety of the officers or other people. Furthermore, attention must be given to the way the suspect is acting, including whether he or she is actively fleeing from the police or resisting arrest. But the analysis does not stop there. The reasonableness of the particular use of force must be examined “from the perspective of a reasonable officer on the scene, rather than with 20/20 hindsight.” And this part of the analysis must account 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.”
It is no surprise then that with such a standard, the Court would end up ruling in favor of the law enforcement officer afterfirst considering the facts and circumstances of the particular case carefully and thoroughly. This standard, of course, is a great improvement from the previous excessive force standard that required a plaintiff to show that the officer had acted “maliciously and sadistically for the very purpose of causing harm.” This standard of the past essentially required a plaintiff to show that the subjective intent of the police officer was to act in a brutish way. This was nearly impossible for plaintiffs to prove, so the Court in Graham v. Connor abandoned this standard, instead adopting the objective reasonableness standard, which it imputed directly from the Fourth Amendment. This standard gives the plaintiff more room to prove her case, allowing the presentation of expert witnesses, testimony from other officers, and other relevant data to help guide courts and juries in determining whether an officer acted reasonably.
In fact, this was taken into consideration by the dissenting Justices in Kisela v. Hughes. Justice Sotomayor and Justice Ginsburg made note of the fact that two of the three officers who had pointed their guns at Hughes decided not to shoot, suggesting that a majority of the officers taking a particular action was tantamount to that action being indicative of “objectively reasonable” measures. Testimony from the other officers showed that they were not yet ready to fire, believing that more discussion between themselves and Hughes was necessary. The dissenters also highlighted certain facts they believed were especially important, including that Hughes was “nowhere near the officers, committed no illegal act, was suspected of no crime, and did not raise the knife in the direction of the woman or anyone else.” While those facts were not enough to win a majority of the Court, the fact that the Justices themselves were split on this issue of reasonableness is in itself a very telling fact.
Finding no need to allow a jury to decide the issue of reasonableness, however, the Court decided that qualified immunity applied because the reasonable police officer standard, when applied to the facts of the case, showed no violation of a Constitutional right wherein the plaintiff could recover.
Critics claim that this “reasonable police officer” standard still fails to account for one factor that seems to play a role in many of the police shootings that make it to the news – race. The New York Times reported that “American police officers killed 74 unarmed black people in 2015.” In order to combat this problem, some have suggested that the courts adopt a new rule, specifically, a policy already being utilized by the Department of Justice. This policy is known as the “necessity rule.” According to the DOJ, “the necessity to use deadly force arises when all other available means of preventing imminent and grave danger to officers or other persons have failed or would be likely to fail.” In essence, even if it would be reasonable for the police to use deadly force under the circumstances, theywouldstillbe prohibited from doing so unless non-deadly or less-deadly alternatives had been exhausted first. Of course, Federal Agents who would rely on this rule do not partake in the overwhelming majority of day-to-day law enforcement operations.
A necessity rule would change the direction of the analysis. Instead of polling officers in order to determine whether the trigger should or should not have been pulled, the analysis would focus on the other options that could have been pursued in a critical situation. This rule purportedly incentivizes specialized, non-deadly force training for officers, for officers to consider other non-lethal options first before drawing their weapon, and it keeps officers from having to second guess whether there was something else they could have done before pulling the trigger. This rule also implicitly suggests that police officers have the luxuryto consider a laundry list of non-lethal actions in an intense situation that usually lasts only a few seconds, if that.
Several courts have expressly rejected the adoption of a necessity rule, reasoning that the United States Constitution does not require it. The imposition of a necessity rule is not without consequences. In fact, should a greater emphasis be placed on using deadly force as a last resort, then the definition of a “reasonable police officer” inherently changes. Without clear guidelines as to what constitutes “necessary,” such a rule becomes unhelpful, albeit well-intentioned. Besides, how many officers that use deadly force would claim that such a use of force was not necessary? Courts would ultimately default to an inquiry into the same notions of reasonableness that courts currently engage in.
Put another way, the issue of what is, or is not, necessary in a particular situation is a matter of subjectivity. The application of such a test would likely result in an objective analysis, much like the current standard already being utilized by courts. This determination of what constitutes a “necessity” is probably a question of “what a reasonable officer under the circumstances would consider to be necessary.” While the necessity rule might seem appealing at first blush, in all actuality, it will probably function in much of the same way as the current reasonableness test.
Furthermore, the necessity rule presents another unique challenge for courts. Specifically, in determining whether an officer exhausted all other measures before using deadly force, a court would have to engage in a great deal of speculation. Effectively, the court would become the “reasonable police officer,” engaging in a sort of hindsight analysis that many would characterize as “Monday-morning-quarterbacking.”
In order to best protect the interests of law enforcement officers who, as courts have repeatedly pointed out, make these quick decisionsunder circumstances that are often life-threatening, uncertain, and tense.The reasonable-police-officer-on-the-scene standard appears to be the best fit for the realities of what is one of the most inherently dangerous jobs in the United States. Individuals who may feel that such a rule unfairly protects police officers need not worry. Such a rule only protects the actions of reasonable police officers. Those officers who act unreasonably remaind unprotectedby this rule. Recent decisionsby state courts have shown that officers will be punished when they act unreasonably.
From the safe, comfortable, and privileged clarity of hindsight, it is easy for one to claim the police acted wrongfully in Kisela. The exchange between Officer Kisela and Hughes took place in under a minute. But the truth is that only those officers, under those circumstances, at that scene, on that day, can truly account for both what was and was not reasonable, and what was or was not necessary. And until the law changes, that is the standard Americans will live with. While it is often popular for individuals to rashly champion the causes of the seemingly downtrodden, there is a great need for individuals to ensure that necessary protections are afforded for those who protect and serve our communities.