Volokh Conspiracy: The Supreme Court’s Continuing Immunity Crusade

Volokh Conspiracy: The Supreme Court’s Continuing Immunity Crusade by Will Baude
A few thoughts on today’s summary reversal in Kisela v. Hughes.

Today’s “dog bites man” story from the Supreme Court is a summary reversal in Kisela v. Hughes, the latest reversal of a Ninth Circuit opinion that had denied qualified immunity to a police officer. An Arizona police officer shot a woman who was holding a kitchen knife because he (seemingly mistakenly) believed that she was a threat to her roommate, who was standing about six feet away. In a per curiam opinion, the Supreme Court held that the police officer could not be held liable for the unreasonable use of deadly force, because it was “far from an obvious case” in light of the urgency of the situation and the woman’s strange behavior. By my count, this is the fifth such summary reversal in the past four years. (It also means that a list of qualified immunity cases in an article I published in February is already out of date.)

However, I was somewhat heartened to see a dissent by two Justices (Sotomayor and Ginsburg). The dissent argued that the majority had “misapprehend[ed] the facts and misapplie[d] the law,” and that a jury could have found that the use of deadly force was clearly unreasonable. The dissent also went on to make a second point, however, one that I think is quite important to emphasize: …