Knife-Wielding Plaintiff Gets Claim Reinstated
Ninth Circuit Sends Non-Fatal Shooting Claims of Mentally Ill Subject Back for Trial, Reversing Summary Judgment Based on Qualified Immunity
In December 2016, the Ninth Circuit issued a published decision reversing the District Court’s summary judgment order dismissing a Section 1983 excessive force case against a university police officer, Kisela. The facts of the case involved a woman calling the police for a “welfare check” regarding her roommate, Hughes -- stating that the roommate was behaving erratically and using a kitchen knife to hack at a tree in the front yard.
When the university police officers arrived at the scene, the female 911 caller was in the front yard, and the female subject with a large kitchen knife in her hand was walking down the driveway towards the 911 caller. The responding officers were on the other side of a chain-link fence as they approached, and issued commands. There were disputed facts as to whether the subject raised the knife or was just walking with it in hand. There were disputed facts regarding the number of times Officer Kisela ordered the subject to drop the knife.
As Plaintiff Hughes ignored Officer Kisela’s commands, the officer lowered his stance and fired four rounds at Hughes through the fence, with each round striking Hughes. The encounter took approximately one minute from the time the police responded to the scene and then used potentially lethal force.
After the shooting, the 911 caller provided information to the investigators that Hughes had Bipolar Disorder, and she was not afraid of Hughes. The 911 caller also told investigators that based on her experience dealing with Hughes, she believed that Hughes would have surrendered the knife if the police officers had given her the opportunity. She also told the investigators that she did not believe Hughes understood the officer’s commands.
The District Court dismissed the Fourth Amendment excessive force claim based on qualified immunity. The Ninth Circuit disagreed with applying the defense here based on the disputed facts. The Ninth Circuit held that it was clearly established that a resident could lawfully walk down her driveway on her property with a knife in her hand. After analyzing the familiar “Graham factors,” the court of appeals emphasized that the officers were not responding to a crime, there was a factual dispute as to whether the subject posed an immediate threat to her roommate, and the subject was not resisting arrest. The court also considered other relevant factors such as 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.
In reaching its conclusion, the Ninth Circuit reviewed earlier published cases involving police shooting mentally ill subjects. The court emphasized the need for law enforcement to slow down in response to such encounters, noting that often no crime has been committed, and the importance of devising alternatives rather than using lethal force. The Ninth Circuit sent the case back for further proceedings to determine the disputed facts, and apply Fourth Amendment law based on the totality of the circumstances.
Based on this case and other recent cases from the Ninth Circuit – if a 911 caller requests a welfare check where a mentally ill subject may be involved, law enforcement officers will be well served by including on-duty supervisors in the loop of communications. Bringing non-lethal tools to the scene, and trying to tap into available community resources such as a Crisis Intervention Team may be prudent as well. In the Hughes case, the Ninth Circuit demonstrated its willingness to factor in information only learned after the dangerous and rapidly evolving confrontation occurred when looking at the issues of the immediacy of the threat and the availability of less intrusive alternatives.
See, Hughes v. Kisela, 841 F.3d 1081, 1085 (9th Cir. 2016).