If you’ve ever gotten a sense that the highest powers in the country are bending over backward to protect police from civilian accountability when they shoot somebody, Supreme Court Justice Sonia Sotomayor would like you to know: they are.
A Monday decision from the court “sends an alarming signal to law enforcement officers and the public” and “tells officers that they can shoot first and think later,” Sotomayor wrote in a scathing dissent.
The case involves a University of Arizona police officer who was sued by the woman he shot four times in 2010. The majority of justices voted to squash that suit, writing in an opinion with no named author that officer Andrew Kisela acted reasonably when he shot Amy Hughes in May of that year.
Hughes was holding a kitchen knife down at her side and standing about six feet from her roommate, Susan Chadwick, in her yard in Phoenix when Kisela shot her. Two other officers were on hand with their weapons drawn, but thought talking was better than shooting in the circumstances. None of the three had identified themselves as police when Kisela dropped to the ground and fired. Evidence from the case suggests that Hughes acted like she didn’t realize the police were there at the edge of the yard, and Chadwick said later she never felt threatened by Hughes at any point during the encounter.
All that makes for an interesting test case of the thorny rules governing police officer liability for deadly force. Those rules already thumb the scale in officers’ favor in criminal court, where the only thing rarer than criminal charges against a cop for shooting someone are convictions for such actions.
The Hughes shooting illustrates just how vastly different a particular police use of force can seem to two different audiences. That divide seems in recent years to have taken on a partisan or at least ideological character, as impassioned and carefully organized protests have forced society at large to scrutinize police use of force anew and right-wing media outlets have scrambled to elaborate absolutist defenses of police in response.
To the conservative-minded set on these cases, Kisela acted quickly to neutralize a knife-wielding woman “whose behavior was erratic enough to cause a concerned bystander to call 911,” as the majority opinion from the high court puts it. To the rest, Kisela was too hasty in a situation where no one was in immediate danger and two colleagues who also had their guns drawn were convinced that more talking was worthwhile.
The decision that set Sotomayor off illustrates how the conservative side of this national split has taken hold of national power, and grown comfortable using it not just to win arguments about police accountability but to stop them from happening at all.
It isn’t just President Donald Trump’s combination of aggressive police boosterism and radio silence on clear-cut cases of misuse of deadly force. It’s not just Department of Justice and legislative branch rumblings about black protest organizers as dangerous radical extremists inside our borders. It’s the high court itself, the power core that’s supposed to insulate our legal system from the worst tendencies of kneejerk tribalism and self-serving rationalization.
The circumstances that brought the case to the high court mandate that justices consider the facts of the case in light most favorable to Hughes, and ask if a reasonable jury could conclude in her favor on the basis of that interpretation. The majority opinion cuddled up to a “no” answer before ducking that question and finding that Kisela’s actions are covered by “qualified immunity.”
Yet their finding rests on skewing the evidence in the case in the officer’s favor, in defiance of the rules governing a summary judgment review against Hughes. The majority justices assert that Hughes “ignored” verbal commands, while Sotomayor notes the evidence calls into question whether she even heard them. They write that Hughes could have closed the six-foot distance between the women and stabbed her before any of the three officers who had their guns drawn could have reacted to save her, “an inference,” Sotomayor writes, “that should be drawn by the jury, not this Court.”
If all this sounds like a fancily worded version of a Reddit argument about any given high-profile police killing from the past few years, that’s because it basically is. But that’s where the court majority’s action Monday becomes egregiously unjust: If these facts are disputable and interpretations of how well or poorly Kisela’s choices fit the law might vary, then the case should have gone to a jury instead of being stamped out from the SCOTUS bench.
The justices’ decision gives the cop in the case summary judgment, a tool that Sotomayor notes the court is supposed to use sparingly, only in cases where the facts and law are so clear that the finality of such an order is appropriate.
But the majority of Chief Justice John Roberts’ court is systematically biased in favor of police, in Sotomayor’s view, and thus too quick to swing the ax in favor of officers.
“As I have previously noted, this Court routinely displays an unflinching willingness ‘to summarily reverse courts for wrongly denying officers the protection of qualified immunity’ but ‘rarely intervene[s] where courts wrongly afford officers the benefit of qualified immunity in these same cases,” she wrote in the dissent, which Justice Ruth Bader Ginsburg joined.
“Such a one-sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment.”