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Tuesday, April 03, 2018

Yet another qualified-immunity summary reversal (Link Corrected)

SCOTUS on Monday summarily reversed the Ninth Circuit's denial of qualified immunity in Kisela v. Hughes, which resulted from an officer shooting a woman in the mistaken belief that she was threatening her roommate with a knife. Such summary reversals of denial of qualified immunity have become commonplace, as you recall. This one brought a dissent from Justice Sotomayor joined by Justice Ginsburg, who argued that, even if the lower court was wrong, it was not "so manifestly incorrect as to warrant 'the extraordinary remedy of a summary reversal.'"

I have not had a chance to read or digest the opinion. But Will Baude offers some comments, especially about the one-side nature of qualified immunity and its evolution into an absolute bar to recovery. So does Orin Kerr, who offers an explanation for why the Court has gone down this road with immunity grounded in the distincion between conduct rules and decision rules.

Posted by Howard Wasserman on April 3, 2018 at 04:41 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


Could you link the Kerr commentary? Right now, it only goes to the Baude piece.

Posted by: RaffD | Apr 4, 2018 2:55:26 PM

I must admit , looks like tragic mistake of the supreme court . I absolutely agree with the analysis of the dissenting judge . The court has emphasized too much the analogous cases so far , instead of emphasizing the conduct of the police officer shooting the plaintiff so recklessly .

They had received a call , the call itself , suggested clearly , that ,that woman with the knife , looked bit crazy , cutting the tree there . That had to raise suspicion , that she may not perceive them well . And indeed , it seems that none of the warnings , had been perceived by her . Also , she looked , content , calm , posing no threat far enough from all persons there , and the knife , wasn't at all posing any danger to no one ( let alone , that it was kitchen knife , although held in her hand ) .

But above all , deadly force, had been used , before :
Any warning that such force is about to be used . No alternative method been observed ( like taser gun ) or even , shooting in the air as warning ,before 4 times shooting her . All the police officer did , is to command that miserable woman , to drop the knife . That is far , very far from reasonable conduct of prudent officer .

Serious mistake …


Posted by: El roam | Apr 3, 2018 7:13:48 PM

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