The Supreme Court Gives Police a Green Light to ‘Shoot First and Think Later’

The Supreme Court just ruled that a police officer could not be sued for gunning down Amy Hughes. This has vast implications for law enforcement accountability. The details of the case are as damning as the decision. Hughes was not suspected of a crime. She was simply standing still, holding a kitchen knife at her side. The officer gave no warning that he was going to shoot her if she did not comply with his commands. Moments later, the officer shot her four times.

“Shoot first and think later,” according to Justice Sonia Sotomayor, is what the officer did.

As Sotomayor argued in dissent, the court’s decision in Kisela v. Hughes means that such “palpably unreason­able conduct will go unpunished.” According to seven of the nine Justices, Hughes’ Fourth Amendment right to not be shot four times in this situation is less protected than the officer’s interest in escaping accountability for his brazen abuse of authority. According to Justice Sotomayor, “If this account of [the officer’s] conduct sounds unreasonable, that is because it was. And yet, the Court ... insulates that conduct from liability under the doctrine of qualified immunity.”

Worse yet, this decision wasn’t a surprise. And it certainly isn’t an aberration.

In fact, it is just the latest in a long line of cases in which the Supreme Court has decimated our ability to vindicate constitutional rights when government actors overstep. And when law enforcement oversteps, as was the case with Hughes, the consequences can be devastating.

As Professor William Baude explains, “[t]he doctrine of qualified immunity prevents government agents from being held personally liable for constitutional violations unless the violation was of ‘clearly established’ law.” If any reasonable judge might have deemed the action permissible, the law is not “clearly established.” Essentially, if you want to sue a police officer who you think violated your constitutional rights, you first have to convince the court that what happened to you was so outrageous that no reasonable person could have thought it was okay.

This makes excessive force cases a steep uphill battle. Such cases turn on the Fourth Amendment — a constitutional right that is notorious for its murky and context-specific contours. So proving a Fourth Amendment violation is hard enough on its own. When you have to prove a “clearly established” violation, the task becomes all but impossible because the Supreme Court keeps raising the bar. This further disempowers those injured or killed by police, and their surviving families.

Let’s examine the evolution of the term.

In 1982 it meant that “a reasonable person would have known” an action was unlawful. Fast forward to 2010 and “clearly established” meant that “every ‘reasonable official would have understood that what he is doing violates that right.’” The difference between “a” and “every” may seem technical, but, as Dean Chemerinsky and the late Judge Stephen Reinhardt explained, this change marks the difference between a measured fair notice standard under which it was possible to hold law enforcement accountable and what we have now: a system that “protects all but the plainly incompetent or those who knowingly violate the law.”

Qualified immunity has become a misnomer. It should be called what it is, as Justices Sotomayor and Ginsberg did in their dissent from last week’s opinion. It is an “absolute shield.”

This absolute shield subverts the basic principles of our legal system. It’s supposed to be harder to hold someone criminally liable than civilly liable, but is it? If you unknowingly commit a crime and the government wants to put you in prison for it, you can’t use your ignorance of the law as a defense. But if an officer makes “a mistake of law” by unreasonably gunning you down in your own backyard, that officer gets to use the defense of qualified immunity to avoid paying damages in a civil case.

It doesn’t take a law degree to know this is absurd.

Furthermore, it turns out the doctrine of qualified immunity has no legal basis in the first place — the courts simply made it up. So how can it possibly be justified?

The Supreme Court has told us that the doctrine “balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” That maybe sounds okay in theory, but Hughes’ case is just the latest to show us that in reality, there is no balance and there is no accountability.

The court’s qualified immunity doctrine contributes to the deep deficit in police accountability throughout our country, which disproportionately threatens and ends the lives of people of color, people with mental or physical disabilities, and members of LGBTQ communities. We are collectively holding law enforcement to the lowest standard of performance, when we should instead incentivize better, smarter, and more humane policing.

The result of the court’s decision is clear. Our right to not be unreasonably shot by the police is less protected, and therefore less important, than the court’s interest in shielding police officers from civil liability for their abuses of authority.

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Anonymous

Are you serious? "Comply or die?" How about you move to a different country?

Anonymous

He won't never die, don't no one worry no more

kelly

Comply to what? They gave her no warning according to this article.

Anonymous

This law protects law enforcement personnel who shoot & kill unarmed people in their own yards or homes...how can you support this? An unarmed man, carrying only a cell phone, was just shot in the back & killed in his grandmother's back yard, & the officers got off scott free...disgraceful!

Mrs. Sandra Lewis

Seven year old Aiyana Stanley-Nones, taking a nap on the family couch....shot in her head and neck. Can't get more compliant than that.

Levsr Brown, 32 years old, shot three times by a cop, while comlying with the cops rewuest to produce his license, registration, and insurance.

Ben Cunningham, 36 yrs old, repeatedly pepper sprayed and tased, while having a stroke behind the wheel of his vehicle. Everyone who sawnthe video could see he was ill, except the dumb ass cops whose assault rendered his stroke worse.

Kathryn Johnston, 92 Shot to death in her home seven times by cops performinng an illegal no knock raid on her home. When the cops could not find drugs in her home (a paid informant told cops drugs were being sold outnof her home, which was a lie he told to get money, the cops planted drugs in her home. For the dumb asses who may be reading this, the raid was illegal, because the warrant was issued under false pretenses.

Walter Scott, shot seven times in the back by a coward in uniform, over a child support issue. Mr. Scott did not pose any threat that warranted him being shot in the back seven times. Mr. Scott also did nothing to warrant a taser being planted next to his body, by the ccop who shot him to death.

Thirteen women of color, raped/sexually assaulted, by a half breed (Japanese and Caucasian) cop. Their initial lack of compliance to being sexually assaulted, did not stop the half breed beast from being sexually assaulted.

Marcus Jeter, repeatedly beaten by two cops, with one of the cops dragging him into the backseat of the vehicle, and continued to assault Mr. Jeter, while yelling, "Stop hitting me, stop reaching for my weapon!!!" The son of a bitch didnt realize that a second vehicle containingna dashcam, captured the entire assault, start to finish, including the fact that the victim never hit the cop, never fought back, and never reach for the lying officers firearm. The video footage saved Mr. Jeter fromna 20 yr prison sentence. His own attorney did not believe in his innocence, until he saw the dashcam footage.

Akil Gurley, 28 years old, shot to death by a cop....for absolutely no reason....except he was walking with his wife and mother of his child on the 7th floor of the apt building where they resided. The coward cop hears people walking above him, the hallway was dimly lit....that scared his bitch ass enough to fire off seven rounds, one killing Akil instantly.

Philando Castile....shot to death in his vehicle, while his girlfriend and daughter watched in horror. And before stupid ass white people say his death was a fake (amazes me how a demographic of melanin challenged idiots who actually think they are superior to very other race...but wait, your inbred sons are shooting up other white kids in schools), I ATTENDED Philando's funeral to pay my respects.

Jonathan Ferrell, shot to death by police. Mr. Ferrell was involved in a car accident. Witnesses stated he suffered head injuries and was bleeding profusely from the head. Instead of calling an ambulance, some dumb white bitch called police, ehich resulted in Mr. Ferrell shot 12 times. The coroners report stated that nased on the position of the bullets in his lower body and extremities, that he was shot while on the ground.

Charles Lindsey, autism behavioral therapist. Lying on the ground with his hands up and begging police to not shoot him or his autistic patient, was shot anyway...three times in the leg. Came close to losing his leg, courtesy of the police who took their time calling an ambulance. When asked why the cop shot an innocent man on the ground, hands up, repiled "I don't know".

22 Black women mysteriously "died" while in police custody.

James Howard, 74. Shot to death by police after making a courtesy call on the elder, who'd recently been released from the hospital, after heart surgery. The elder grabbed his licensed gun probably thinking his home was being broken into. One of the dullard cops admitted they shot him on sight.

Here is what I plan to do.

If/when a WHITE PERSON is needlessly assaulted, shot and killed by police, or a white woman is sexually assaulted by police, I'm going to justify it ny saying EXACTLY what white people say, when Black people are assaulted, shot and killed by police....

"...Oh well, he/she should have "complied".

Enjoy the rest of the day, people!!

Anonymous

You know that whooshing noise you heard was the point sailing over your head. Comply with what? If you could effectively read and understand English, you'd know the officer didn't give a command with which his victim could comply. Comply with what? Never get in that situation? You mean, standing peacefully in your own yard? So what if you're a legal immigrant. Every single day you break the laws of the US, just like every single American. You can thank SCOTUS for that acknowledgement. We are all criminals. Period. What makes you better than anyone else?

Anonymous

There was no command to put down the knife or do anything else. This was literally an officer shooting her for no fucking reason.

Anonymous

Are you serious? Can tell you are not from the USA!

Anonymous

Comply or die doesn’t even meet the mark. In the young lady’s case, she was not told to comply, just shot. This is a way to protect absolute abuse of authority.

Anonymous

Quite the contrary because with immunity it doesn't matter if you get yourself into this situation government officials will be pardoned even if they accidently kill you so long as it can not be proven they intentionally violated your rights. Proving that is next to impossible unless they had a special vendetta against you with proof linking the two facts.

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