In Kisela v. Hughes, 17-467 (U.S. April 2, 2018), decided on the cert petition and response, the Supreme Court held that an officer who shot a woman holding a knife in an apparent threatening manner [although that seems to be disputed] near her roommate who turned out to be likely mentally ill was entitled to qualified immunity. She’d been reported using the knife to hack at a tree, and that’s why the police were called. When they confronted her, there was a chain link fence between the three officers pointing guns at her and her standing 6′ from her roommate. The dissent (Sotomayor and Ginsburg) notes that she wasn’t threatening at all, and the use of force was objectively unreasonable. From the dissent:
In sum, precedent existing at the time of the shooting clearly established the unconstitutionality of Kisela’s conduct. The majority’s decision, no matter how much it says otherwise, ultimately rests on a faulty premise: that those cases are not identical to this one. But that is not the law, for our cases have never required a factually identical case to satisfy the “clearly established” standard. Hope, 536 U. S., at 739. It is enough that governing law places “the constitutionality of the officer’s conduct beyond debate.” Wesby, 583 U. S., at ___ (slip op., at 13) (internal quotation marks omitted). Because, taking the facts in the light most favorable to Hughes, it is “beyond debate” that Kisela’s use of deadly force was objectively unreasonable, he was not entitled to summary judgment on the basis of qualified immunity.