The Supreme Court’s bizarre summary reversal in Kisela v Hughes

As Chief Justice John Roberts likes to remind us, federal judges are very busy (he should see the dockets that California state court judges manage). According to Roberts, that explains why the U.S. Supreme Court's docket has shrunk to its smallest size ever.

That makes the Supreme Court's "summary reversal" process extra important. In this process, the court will grant certiorari and simultaneously decide the case's merits -- that is, without any merits briefing, without any "friend of the court" briefs or (typically) input from the solicitor general and without any oral argument. These decisions, which usually reverse the lower court's decision, have become more frequent under Chief Justice Roberts. And they have been increasingly used against the 9th U.S. Circuit Court of Appeals, reinforcing the perception that the 9th Circuit is filled with out-of-control liberal judges.

Of course, anybody who practices in the 9th Circuit knows that perception is not accurate. And anybody who practices in federal court, period, should be concerned about the Supreme Court's recent summary reversal in Kisela v. Hughes, 2018 DJDAR 2997 (April 2, 2018).

Kisela was a civil rights (excessive force) case brought by a woman (Kisela) who had been shot by a police officer (Hughes). The facts were fairly straightforward: Somebody saw Kisela hitting a tree outside her house with a knife and called 911. Three police officers responded. When they reached the house, they saw another woman (Cartwright) standing in the driveway. The officers saw Kisela walk toward Hughes. She was holding a kitchen (butter) knife in one hand. The knife was at Kisela's side, pointed down and away from Cartwright. The police drew their guns and shouted at Kisela to drop the knife. Cartwright told everybody, including the police, to "take it easy." Suddenly, Hughes fired three shots at Kisela. Kisela was six to eight feet away from Cartwright at the time.

Kisela was injured by the shots. She sued Hughes for violating her right to be free from excessive force under the Fourth Amendment. The district judge, Judge Frank Zapata, a George W. Bush appointee who has a reputation for being conservative, denied Hughes' motion for summary judgment. Although some facts were undisputed, Judge Zapata found that a rational jury could conclude that Kisela did not make any threatening gestures toward Cartwright or the officers and thus there was no immediate threat that justified Hughes' use of deadly force. The judge also found that it was clearly established that an officer could not shoot somebody simply because she was holding a knife if she did not pose an immediate threat of harm to the police or others. Thus, Judge Zapata also found that Hughes was not entitled to qualified immunity.

A 9th Circuit panel agreed. It issued a thoughtful opinion that emphasized the inconsistencies between Hughes' belief that Kisela was threatening Cartwright and other evidence, such as testimony from the other officers that they did not believe there was any threat of immediate harm to Cartwright. Moreover, the 9th Circuit noted there was no evidence that Kisela pointed the knife at Cartwright, or anybody else. And though she had been walking toward Cartwright, Kisela had stopped walking and was at least six feet away from her when Hughes fired. The 9th Circuit cited other cases that had found it unreasonable for a police officer to shoot a suspect who was holding a weapon, the key factor in those cases being that the suspect was not threatening anybody with the weapon when the officer fired.

That was a sound decision. The 9th Circuit did not decide the case for Kisela. It simply held that there was enough objective evidence for a jury to conclude that Kisela was not an immediate threat to anybody and that the shooting was, therefore, not proper. This was not a novel theory. Courts decide hundreds of excessive force cases each year. And the legal principles governing the use of deadly force are, in particular, clearly established so qualified immunity could not save Hughes.

The Supreme Court considered Hughes' petition for certiorari at multiple conferences. This itself was surprising, since the case did not present a circuit conflict or a novel constitutional question. It involved the application of settled principles to disputed facts on summary judgment. In the 1980s, the Supreme Court issued several opinions that explained exactly how the summary judgment process works, writing the oft-quoted language that the non-moving party should prevail if it can produce a "scintilla of evidence" to support its claims.

But the Roberts Court does not like how that rule gets applied in cases involving police misconduct. So it has used the qualified immunity doctrine and the summary reversal process to rebuke courts that "second-guess" police officers and to pressure courts to grant summary judgment to officers in most cases.

This sets a dangerous precedent. The Fourth Amendment's "reasonableness" standard generally favors police officers. But it is not supposed to be impossible to prove. The legal principles governing the use of deadly force are, in particular, clearly established. When those factors weigh in the plaintiff's favor -- or at least could weigh in the plaintiff's favor based on the objective evidence -- a court should deny summary judgment and let a jury decide the case.

In Kisela, the Supreme Court got around these principles by misstating the facts, stating that the evidence showed Kisela to be "brandishing" the knife in a threatening manner toward Cartwright (she wasn't) and finding that Hughes made a reasonable, split-second decision to shoot to save Cartwright's life. Most, if not all, of the objective evidence showed otherwise. Only Hughes testified that Kisela threatened anybody.

Why does that matter? Federal courts have often said that a shooting is not justified simply because a police officer says he believed shooting was necessary to save somebody's life. And, historically, determining whether such a belief was objectively reasonable required more than picking a few facts that support the officer's story. In Kisela, though, the Supreme Court did just that.

How will the lower courts respond? Numerous courts, in numerous circuits, have denied summary judgment in cases that were similar to Kisela. Perhaps they will limit Kisela to cases involving potential third-party harm; after all, Hughes didn't say that he felt threatened by Kisela, nor could he have since a fence separated them. But would the case have turned out differently if Cartwright wasn't there? I suspect so. For that reason, I suspect that when courts look closely at Kisela, they will find an incorrect result brought on by a flawed analysis and a distortion (or perhaps misunderstanding) of the record -- all caused by the Supreme Court's decision to decide the case through its "summary" procedure.