The growing legality of extrajudicial execution

A different body of law applies to police officers and everyday citizens. If a non-cop inadvertently breaks the law they cannot claim ignorance of the law as a legal defense. The onus is on every citizen to know what is and isn’t legal no matter how bizarre, and then follow those laws. Police officers (and other public officials) on the other hand are shielded from civil liability unless their actions clearly violate the plaintiff’s constitutional rights under the doctrine of qualified immunity:

“Qualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  White v. Pauly

This session the Supreme Court expanded qualified immunity in Kisela v. Hughes. According to seven members of the Court (Justices Ginsberg and Sotomayor dissented), a reasonable person would not have known that a woman holding a kitchen knife by her side six feet from the nearest person was not an imminent threat to others. According to seven members of the Court, an officer is justified in shooting a still woman four times in her front yard because she did not drop a knife within less than a minute of being ordered to by police officers who never identified themselves. In overturning the 9th Circuit’s ruling on the case, the Supreme Court decided that Hughes was most analogous one in which a man brandished a sword while yelling threats and walking towards the police. They did this while reprimanding the lower court for drawing analogies with another case in which the man shot was unarmed, compliant with police orders (Hughes did not drop her knife when told to do so, nor give any indication she heard the police), had threatened the police (Hughes neither yelled or threatened anyone), and in which everyone involved had a clear line of retreat (just like this case). But don’t worry, as confusing as these analogies may be, in the future Kisela v. Hughes will be the standard qualified immunity case justifying deadly force—and justify deadly force it clearly does.

Seven members of the Supreme Court decided that the near murder of a woman holding a common household item who was not threatening anyone was not a violation of any of Hughes’ “clearly established rights.” They decided this was so obviously the case that a jury shouldn’t even hear the case—overturning the 9th Circuit’s decision in favor of a public trial.

Jury trials are discussed in Article III and Amendments 5, 6, and 7 of the Constitution of the United States. The right to trial by jury appears in every state constitution written between 1776 and 1787, as well as the Declaration of Independence. The immunity of police from prosecution for murder also appears within the Declaration of Independence—as a justification for revolution.

I will not even attempt writing a conclusion better than Justice Sotomayor’s (quotation marks removed):


…[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.

The majority today exacerbates that troubling asymmetry. Its decision is not just wrong on the law; it also sends an alarming signal to law enforcement officers and the public.  It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished. Because there is nothing right or just under the law about this, I respectfully dissent.


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