Appeals court reinstates excessive force suit against UA police officer
PHOENIX – A woman shot four times will get another chance to prove the University of Arizona police officer used excessive force.
The 9th U.S. Circuit Court of Appeals on Monday reinstated the lawsuit that Amy Hughes had filed against Andrew Kisela following the 2010 incident. Judge William Sessions, writing for the unanimous three-judge panel, said it was wrong of a trial judge to have thrown the case out before a trial – and before jurors get to decide whose version of events to believe.
And Sessions said that if jurors believe Hughes’ version they could simply conclude that she “had a constitutional right to talk down her driveway holding a knife without being shot.”
Sessions also said that Kisela was not automatically entitled to qualified immunity.
According to court records, three UA officers responded to an off-campus report of a person hacking a tree with a knife.
When they arrived they saw Amy Hughes emerge from her house carrying a large kitchen knife. When she began to walk toward Sharon Chadwick, police yelled for her to drop the knife.
Sessions said Chadwick, who lived with Hughes, submitted an affidavit saying Hughes was composed and not threatening. And in talking with police afterwards, Chadwick said Hughes had been diagnosed with bipolar disorder, was taking medication, and that she did not understand what was happening when police yelled for her to drop the knife.
Other witnesses, including other police officers, said Hughes never raised the knife.
And Chadwick said she believes that Hughes would have given her the knife if asked – and that police should have afforded her that opportunity.
But unable to approach the women because of a chain-like fence, Kisela shot Hughes four times.
Attorney Vince Rabago said bullets hit her in the hip, leg, arm and groin area. He said she suffered permanent injuries and has ongoing pain as well as emotional distress.
Sessions said Kisela “was undoubtedly concerned for Ms. Chadwick’s safety.” But the judge said that a simple statement by an officer that he fears for his own safety or that of others is not enough to justify use of deadly force.
“There must be objective factors to justify such a concern,” Sessions wrote.
The judge also pointed out that officers were called to the scene solely to check the welfare of someone.
“No crime was reported,” he noted.
Sessions said all the evidence, taken together is enough to raise questions of fact of whether Kisela acted reasonably. And those, the judge said, have to be decided by a jury after a trial.
One of those questions, he said, is whether there was a better way to deal with Hughes other than shooting her four times.
“Police are required to consider what other tactics if any were available, and whether there are clear, reasonable and less intrusive alternatives to the force being contemplated,” the judge said. And he said that Hughes’ version of the events could cause jurors to conclude that Kisela acted improperly.
“The fact, viewed in Ms. Hughes’ favor, present the police shooting a woman who was committing no crime and holding a kitchen knife,” Sessions wrote. “While the woman with the knife may have been acted erratically, was approaching a third party, and did not immediately comply with orders to drop the knife, a rational jury – again accepting the facts in the light most favorable to Ms. Hughes – could find that she had a constitutional right to talk down her driveway holding a knife without being shot.”
“This was a victory for civil rights and common sense,” Rabago said, calling the incident “a classic case of shoot first, ask questions later.”
Kisela is being defended by the attorney general’s office as he is being sued in his official capacity, which likely would make the university liable for any damages awarded.