The Limits of “Palpably Unreasonable” (Update)

A summary reversal ordinarily would capture no interest, but for the dissent by Justice Sonia Sotomayor, with whom the Notorious RBG joined, calling out the obvious to the oblivious.

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.

And that’s the message sent by the majority in its per curiam opinion in Kisela v. Hughes. From a distance, this may look terribly misguided, but close up one realizes that it’s the message the Court meant to send to police, and has been consistently sending to cops since they decided Graham v. Connor, the Reasonably Scared Cop Rule.

That this resulted in summary reversal, a mechanism used for cases that are so clear as to not require further deliberation, is what makes Justice Sotomayor’s strong dissent stand out. And it comes on the heels of the killing of Stephon Clark, giving us pause, for at least the moment, to consider death at a cop’s hand until the next shiny outrage occurs.

Charles Blow writes about Clark’s killing, mashing it together with the generic “cops kill black guys” theme, and thus gets the law all wrong.

These shootings keep happening and officers are rarely charged with crimes — and even more rarely convicted — because what they are doing is legal. That is the true American tragedy.

In a utopian society where people did not discriminate — consciously or subconsciously — “objective reasonableness” would be a perfectly serviceable standard. But we don’t live in that world; we live in this one.

The courts have given police officers broad discretion, but they simply aren’t applying that discretion equitably. Certain people, in certain communities, are viewed as more of a threat more quickly.

To Blow, the problem is neither the law, per se, nor the Supreme Court’s “shoot first, think later” philosophy. To Blow, the problem is that they shoot “certain people, in certain communities,” more than others.

It’s guys like Blow who condemn the very people they’re trying to save to death, because their obsession with races blinds them to the cause of the problem such that they see only the outcome. Shoot first, think later, would be a utopian solution for him if only they killed more white guys and fewer black guys? Who would have thought he was a closet cop apologist, whose only gripe is the color of the kill?

These shootings keep happening because, on some level, America finds them acceptable, finds them unfortunate but unavoidable. We regard the dead as collateral damage in a quest for safety and civility, not registering that the countenancing of such killings exposes in us a predisposition for racially skewed cruelty and brutality.

Justice Sotomayor called the needless shooting of Amy Hughes “palpably unreasonable.” Whether it was unreasonable is debatable based on whether Officer Andrew Kisela was a reasonably scared cop. The “objectivity” part of the test isn’t based on what us non-cops would call reasonable, but on what cops would say. It’s not a reasonable person objective test, or even a reasonable judge objective test, but a reasonable cop objective test.

Whether it’s “palpably unreasonable,” however, ignores the Supreme Court’s holding. It is not so glaringly wrong to the majority of the Court, to the majority of Americans and to the majority of police officers. In baseball, a tie goes to the runner. In police shootings, a tie goes to the cop. If there is any question of threat, the law is prepared to give the cop the benefit of the doubt. And whether there is any question of threat is a decision only cops can make. We don’t get a vote.

Why has the Supreme Court fashioned a rule so deferential to police, whether the recipient of their bullets is black or white, male or female? Certainly the Supremes have long entertained a level of trust and faith in law enforcement, in their being the good guys at least relative to the bad dudes, that they’ve gone with the odds.

This is a rule, fashioned for general application, because it can’t be dependent on second-guessing every cop shooting after the fact from the safety of the armchair or bench chair. And then comes the hard truth, that when a cop is killed because he hesitated, because he waited until the muzzle flash, America goes crazy about the horror of violent criminals. The hard truth is that we want to believe that the cops are the good guys. We want our cops to be safe. We need to trust them, because we need to have faith that there are people out there who will protect us from bad things.

And yet, the protection provided under the guise of Qualified Immunity is deeply unsatisfying.

Civil liberties advocates on the right and the left sharply criticized the ruling.

“Today’s ruling gives yet another green light to officers who use deadly force as a tool of first resort instead of last,” said Clark Neily, vice president of the libertarian Cato Institute. “It does so based on a legal doctrine — qualified immunity — that the Supreme Court invented out of whole cloth to help create a policy of near-zero accountability for law enforcement.”

David Cole, legal director for the American Civil Liberties Union, said officers who use lethal force unconstitutionally should be held accountable. “Giving a free pass to officers under these circumstances will only exacerbate the problem.”

If Justices Sotomayor and Ginsberg deem the Reasonably Scared Cop Rule too deferential, then what rule strikes a better balance? Qualified Immunity covers up outrageous conduct after the fact, under the fiction that cops shouldn’t be subject to fear of liability that might cause them to hesitate and die. But these presume that a cop might violate the First Rule of Policing based on what might come later in court.

There is no cop unfamiliar with the platitude, “better to be judged by twelve than carried by six.” They will always shoot first, think later. They will fear what they fear, and act upon it for their protection. The safe harbor of Qualified Immunity won’t change the tipping point of fear, of threat, of the kill, but judgment afterward.

No cop will ever die if the Reasonably Scared Cop Rule is modified to reflect society’s judgment as to when a kill is “palpably unreasonable.” But the bad news is that no rule of liability or culpability will stop a cop from shooting when, in his mind, the options are his life or yours.

Update: Orin Kerr has joined the discussion at VC in his inimitable way:

I’ve wondered about this, too, and I wanted to offer a possible explanation. I apologize that my explanation is long, tentative, and perhaps a bit rambling. I hope there’s at least the kernel of a useful idea in here, but of course you’ll be the judge of that.

First, some background. It seems to me that the Supreme Court uses qualified immunity to create what Meir Dan-Cohen famously called “acoustic separation” between conduct rules and decision rules. Here’s the idea, at least as applied to criminal investigations. Ex ante, there may be some ideal rule that you would want the police to follow. That’s the conduct rule, in this case the constitutional standard. But ex post, when the police don’t follow the rules, the less-than-ideal remedies available to deter misconduct may support a less restrictive rule for when that remedy is actually imposed for violations. That’s the decision rule.

Well, he did say “long, tentative, and perhaps a bit rambling,” so get over it.

27 thoughts on “The Limits of “Palpably Unreasonable” (Update)

  1. Richard Kopf


    I like facts. I don’t like “palpably unreasonable” conclusions even when uttered by a wise Latina and a rock star.

    In the case about which you write, the cops were called to the scene because of a report that a woman was observed hacking a tree with a knife. Hughes, the woman who was shot, matched the description of the woman said to be hacking the tree with a knife.

    The cop who shot Hughes was scared not for himself but for another woman that Hughes was approaching with a large kitchen knife. Hughes ignored two commands to drop the knife. Hughes was no more than six feet away from the other woman when Hughes was shot.

    Before the shot, the other woman had said “take it easy” to both Hughes, the woman with a knife, and the officers. Less than a minute had transpired from the moment the officers saw Hughes approaching the other woman to the moment the cop fired.

    Hughes suffered non-life threatening injuries. After the fact, the officers also learned the following:

    Chadwick (the other woman) and Hughes were roommates, that Hughes had a history of mental illness, and that Hughes had been upset with Chadwick over a $20 debt. In an affidavit produced during discovery, Chadwick said that a few minutes before the shooting her boyfriend had told her Hughes was threatening to kill Chadwick’s dog, named Bunny. Chadwick “came home to find” Hughes “somewhat distressed,” and Hughes was in the house holding Bunny “in one hand and a kitchen knife in the other.” Hughes asked Chadwick if she “wanted [her] to use the knife on the dog.”

    All the best.


    1. SHG Post author

      I deliberately left the facts out of the post because of the likelihood of getting caught up in this one fact pattern when attempting to address an overarching rule. Are you suggesting we would do better without a Reasonably Scared Cop Rule and Qualified Immunity, and just address each fact pattern sui generis on how right or wrong it feelz?

  2. Skink

    The Court, on both sides, got this wrong. Not wrong on “shoot, don’t shoot” because they do plenty of that, but wrong in legal application. I mentioned before that QI rarely applies because so much is clearly established. That’s true here: QI doesn’t apply and wasn’t really applied, though it’s repeatedly mentioned.

    The opinions, both of them, assume a constitutional violation occurred and supposedly move to the next step: whether the law was crystallized to the point where no officer could believe what he was doing was violative. But that’s not what they did and it’s not what many courts are doing. Instead, they undertake a straight 14th Amendment analysis–“shoot, don’t shoot”–based on precedent and claim it’s a QI analysis. That is not how QI is applied. That’s not how the Court instructed its application. It comes from language like this:

    “Here, the Court need not, and does not, decide whether Kisela violated the Fourth Amendment when he used deadly force against Hughes. ”

    That also is not the standard. The standard is whether a jury question is presented on the facts. It is not to be a decision ripped from a jury and creating an an affirmative violation. Lower courts have applied more-concrete language, and actually state that a violation occurred. They then move on to what passes for a QI analysis, but is really just 14th Amendment stuff.

    They just make it worse when they don’t actually apply a rule they created.

    1. SHG Post author

      The two-prong QI test is no longer serial, but either/or. If not “clearly established,” then whether it’s a constitutional violation need no longer be decided per Saucier. Pearson v. Callahan was another bad decision, but it’s the law nonetheless now. So they don’t, and need not, assume a violation occurred to confer QI regardless.

      And before saying QI rarely applies, bear in mind that of the gazillion constitutional violations, almost none make it past a plaintiff’s lawyer on contingency fee. That doesn’t mean they didn’t happen, but that there’s no reasonable expectation of prevailing in the 1983 case. Why? Because QI, dammit.

      1. Skink

        It’s no longer required to be in the specific order, but that doesn’t mean it’s not usually applied in that order. It is. But that isn’t the point: the overall application is wrong. That results in a whole bunch of QI analysis being vanilla 14th Amendment application.

        Some lawyers don’t take these cases, some do. The ones that don’t make that decision because these are hard constitutional issues with mostly bad clients. QI is rarely an extra issue. You’re welcome to peruse my book, but I suggest next Winter.* It’s about to get cold down here.

        *I’ll anticipate you: I don’t only see the cases filed and not rejected. I’m in to spot the potential for liability. Color me a risk manager.

        1. SHG Post author

          Obviously QI goes beyond the issue of excessive force, which is the intersection in this post, but I’m going to take a big risk myself and say your color is more fuchsia than risk manager.

          1. Skink

            I try to stay on point. It’s a requirement here. I’ve seen the ramifications. But since you broached the subject, why do you think I’m a communist?

            My closet has about 10 blues, 8 greys, 4 brownishes and an olive. The last time I saw the questioned color, it was on a shower cap. The shower cap was on the Lincoln bust in a certain well-known judge’s chambers, which is in Flyover.

  3. Richard Kopf


    No, but I am suggesting that this case is not the one to reconsider the reasonably scared cop rule. I am further saying that the reasonably scare cop rule was not even a factor in this case.

    I am also saying that this was an easy case that shouldn’t have made it past the summary judgment stage even if qualified immunity was not an issue and the matter was resolved on the merits. The Fourth Amendment was not violated on the facts viewed most favorably to the crazy woman. (Cf. Skink’s comment below.) The fact that the Supremes reversed the 9th Circuit with a per curiam opinion, and without argument, is telling.

    Now, as for qualified immunity more generally, it drives me crazy because it is hard for us peons to apply with a straight face. While we don’t use our feelz for qualified immunity, we do stick our fingers in the wind to see which way the wind is blowing on each particular fact pattern.

    Without boring your readers, I am frank to say that over the last 26 years qualified immunity has bedeviled me more than any other doctrine in federal law. Whether the Supremes should junk it, alter it or maintain it I don’t much care. I just would like to know what the fuck it really means.

    The unstated but real rule now is essentially this: Cops have QI except when they don’t.

    I’m German. I hate ambiguity.

    All the best.


    1. SHG Post author

      I seize upon the opportunity to address the Reasonably Scared Cop Rule and its ugly sister whenever the Universe smiles upon me and, for that brief and shining moment, people can focus on it before some terrible microaggression like hoop earrings on a squirrel steals their focus.

      Being a CDL, I have enormous tolerance for ambiguity. There’s no other way to survive.

      1. Richard Kopf


        I am not a squirrel, although I am surely squirrely. Furthermore, I like diamond studs rather than hoops.

        All the best.


    2. Skink

      No cf needed–I’m 100% with you. The Court really finds no constitutional violation, but calls it QI. It isn’t, but only because they’re doing it wrong. That makes it harder for guys like you.

        1. Skink

          Maybe, maybe not. I only know that you got this post wrongish. If it is to have a real chance to be rightish, it should be written by one that actually makes these decisions. Sadly, the only one readily available is being a weenie and won’t write a post. Before you jump to a conclusion, I doubt the decision to be a weenie has anything to do with Lincoln.

          1. SHG Post author

            Weenie? Weenie? To whom do you refer, who also has a Lincoln bust with a shower chapeau?

            Could such a person right my wrongishness? Would he be able to muster the effort to take me behind the woodshed? Would he, Judge?

  4. phv3773

    There has to be a threshold and it doesn’t matter much what you call it. “Reasonable” comes off the tongue so much more easily than “necessary given the totality of the circumstances.”

  5. Richard Kopf


    While I have big hands, I have an unnatural fear of (1) the woodshed; (2) a former Governor of Florida, with one eye, who wears a shower cap and eats road kill, (3) the former Governor’s fellow traveler who I am reasonably certain wrestles gators while three sheets to the wind–a not uncommon occurrence for him and (4) Admirals in the Nebraska Navy who mount gators (having no need to wrestle them) and who also eviscerate ninnies.

    All the best.


      1. LocoYokel

        Not sure we want to know what you do with your hands, however nimble or not they may be.

  6. Skink

    That reminds me: I need a new hat. I misplaced the other.

    Former governors aren’t nearly scary as present governors. That’s why I left for the swamps. Done right, all roadkill tastes like shrimp. Just not Gulf shrimp.

    Even drunk, alligators are easy this time of year–they’re all looking to get laid. Just like us, they do stupid stuff when making the effort. So they’re easily found lying on roads, in pools and on park benches. There’s no need for wrestling because they just want to cuddle when they’re horny.

    IF you haven’t noticed, the sound is a little repetitions here in the SJ Hotel. Someone is caught in a loop and could use some help. It’s sorta like when you give a new clerk an issue to sort out. That clerk whacks away at Westlaw, trying to get to the nut. He digs into case after case. You check on him a few hours later, finding him standing in a very deep hole, naked and mumbling, “but what does ‘excessive’ mean ?”

    He ain’t naked yet, but Ima feared. Isn’t there something you could do?

    1. SHG Post author

      There’s no need for wrestling because they just want to cuddle when they’re horny.

      I didn’t know this.

  7. Billy Bob

    It’s nice to see that two out of three women on the Supremes voted in dissent on this important case.
    (We misunderestimated Sonia’s potential years ago when she was up for nomination.) Ruth Bader of course, is a given. Currently our favorite justice,… a “rock star.”

    But what happened to Elena? Is she an apostate? Oh, you mean that Elena who never set foot in a criminal court! We’re working on a recall of poor Elena, a severe disappointment here. How could she? What is wrong with Elena Kagan? Synapse relapse, or merely a momentary lapse of “reason”? Step down, Elena, you’re finished for not joining your sisters on this whatchamacallit case. Retire, Elena, immediately, if not sooner! You disgrace the Sisterhood.

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