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

Criminal Court System that's why the us is in no Bussiness to point figures at other nation when you have a criminal court system

Anonymousted

if you are closer than 30 feet to a person with a bladed weapon, they can close the distance and stab or slash you before you can draw and shoot. the ruling was about whether someone can be sued personally for doing their job. The justices said not if they were working in good faith. No one would work for the government if they were personally responsible for inforseen complicatiins. They basically said unless you obviously gonagainst proticol you are not liable. to be sued. This has nothing to do with criminality.

Jerry May

I agree with the supreme court. Police can't be in a position to second guess the need for deadly force. We will all be in harm's way if they do.

Anonymous

Fuck this!

Rj

The truth, which I know the left hates - and also the truth is conspicuously absent from this article but the facts are Ms. Hughes was a known mentally unstable person who was seen with a large blade hacking at a tree and someone called to report a possible 5150 (person that may be a danger to themselves or others) so the police responded and Ms. Hughes was ordered to put down the blade, she declined and was subsequently shot but not killed. Police are not trained psychologists they are law enforcement officers and I suspect that if Ms. Hughes was not out in public trying to murder a tree and then simply complied with police officers none of this would have happened - so who is responsible???

Char VB

Totally agree. Any intelligent, sane person would immediately have dropped that knife. Also, the article doesn't mention the fact that she survived the shooting but, instead, leaves the reader to assume that she died.

Yolanda

This will only make people take the law into their own hands and by right they should since they are not protected under the constitution. So she don't need to cry foul when folks are gunned down and their relatives come after the gunman who shot their relative.
She and anyone else on the supreme court that feels that way should quit because they know wrong.
I dont know how these people making decisions sleep at night or live with themselves.

KAREN NAYLOR

SAW THIS COMING WHEN BLM STARTED MARCHING IN THE STREETS SCREAMING LIKE BANCEEYS FOR THE DEATH OF COPS. ONCE UPON A TIME ON PLANET EART IN AMERICA IT WAS CONCERTED RUDE TO CALL A POLICEMAN A COP. IT WAS POLICEMAN, OFFICER, OR SIR. WHEN PEOPLE WERE BEING CHASED BY AN OFFICER AND THE POLICEMAN YELLED TO FREEZE, PEOPLE FROZE OR WERE SHOT. IF THEY PULLED YOU OVER FOR A TRAFFIC VIOLATION PEOPLE WERE POLITE EVEN IF THE OFFICER WAS AN ASS. THEY COMPLAINED EITHER IN COURT OR TO THE COUNTY NEXT DOOR WHERE IT HAPPENED. IN SMALL AMERICAN TOWNS THERE FEW JAILS. PEOPLE WERE TRANSPORTED TO A BIGGER TOWN AND COURTS WERE HELD THERE. COMMUNITIES WITH SMALLER POPULATIONS PAID MORE ATTENTION TO THE YOUTH AND EVERYONE HAD A HAND TO MAKING SURE THE CHILDREN DID NOT GET OUT OF CONTROL. SOMEONE WROTE ON A BUILDING THAT SOMEONE HAD TO CLEAN IT UP. THEY STOLE SOMETHING THEIR PARENTS MADE THEM TAKE IT BACK. PARENTS RAISED THEIR OWN CHILDREN NOT THE STATE. THEY WERE RAISED TO RESPECT THE LAW TO OBEY THE LAW AND TO RESPECT THEIR NEIGHBORHOODS. NOWADAYS GROUPS OF PEOPLE BEAT UP OFFICERS TRYING TO DO THEIR JOBS. PEOPLE WALK UP TO POLICE SETTING IN THEIR CARS AND SHOOT THE OFFICERS. POLICE TRY TO ARREST THE BAD GUYS. THEY TRY TO STOP CRIMES. YES, THERE ARE BAD GUYS AND YES, THERE ARE GOOD GUYS. THE POLICE TRY TO DO THEIR JOBS. THERE FOR A WHILE THE POLICE WERE BEING ATTACKED FOR STOPPING BAD GUYS SO PEOPLE WERE KILLING POLICE OFFICERS. PEOPLE WERE SCREAMING ABOUT BIGOTRY AND ALL SORTS OF INJUSTICES BUT ALL GOES BOTH WAYS. SOCIETY DOES NOT BECOME PERFECT WHEN ONE SIDE IS SMASHED AND THE OTHER GETS WHAT IT WANTS. SOCIETY IS FIXED WHEN EVERYONE WINS AND THE ONLY WAY SOCIETY WINS IS WHEN PEOPLE REALIZE THAT THE TRUTH MUST BE MET. THIS ALL STARTED BECAUSE PEOPLE WERE CHEERING AND CRYING FOR THE BAD GUYS AND STARTED KILLING THE PEOPLE TRYING TO BE THE GOO GUYS AND PROTECT THE PEOPLE WHO THE BAD GUYS WERE HURTING. NOW RIGHT OR WRONG THE POLICE ARE BEING PROTECTED SO THE LAW IS PROTECTED AND IT'S THE PEOPLE IN THE STREETS WHO ARE THE BAD GUYS ALONG WITH THE PEOPLE WHO CHEERED FOR THE BAD GUYS AND APPAULDED THE DEATH OF POLICE OFFICERS WHO FUCKED IT UP AND FORCED THE LAW TO PROTECT THE LAW KEEPERS AT THE EXPENSIVE OF THE FREEDOM OF 'INNOCENCE UNTIL PROVEN GUILTY.'

Anonymous

This is clearly an extremely biased article. It purposefully left out the facts of the case in order to make a case for the delegitimization of policing profession. The ACLU has become a huge joke in the legal world. The largest ambulance chasing group in the country.

John westcott

Simply understand this: police are able to do almost anything, almost anytime, for almost any (or no) reason, with zero liability. That's what the courts almost always tell us, and that's what the police know and understand. You should also.

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