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.