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 filed against Andrew Kisela following the 2010 incident.
Judge William Sessions, writing for the unanimous three-judge panel, said a trial judge was wrong to throw the case out before a trial, and before jurors get to decide whose version of events to believe.
Sessions said that if jurors believe Hughes’ version, they could conclude that she “had a constitutional right to walk down her driveway holding a knife without being shot.”
The judge also said that Kisela, as an officer, 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 Hughes emerge from her house carrying a large kitchen knife. When she began to walk toward a woman she lived with, Sharon Chadwick, police yelled for her to drop the knife.
Sessions said Chadwick later submitted an affidavit saying Hughes was composed and not threatening. 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.
Chadwick said she believed 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 fence, Kisela shot Hughes four times.
Bullets hit her in the hip, leg, arm and groin area, said Hughes’ attorney, Vince Rabago. 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 the evidence, taken together, is enough to raise questions of fact — for a jury to decide after a trial — of whether Kisela acted reasonably.
One of those questions, he said, is whether there was a better way to deal with Hughes other than shooting her.
“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.
In this case, “While the woman with the knife may have acted erratically, was approaching a third party, and did not immediately comply with orders to drop the knife,” a jury, if “accepting the facts in the light most favorable to Ms. Hughes — could find that she had a constitutional right to walk 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.
