An excessive force lawsuit against a University of Arizona Police Department officer who shot a woman four times after she refused to comply with officers and approached another woman with a knife was reinstated Nov. 28 by a federal appeals court.
The 9th U.S. Circuit Court of Appeals stated a rational jury “could find that she had a constitutional right to walk down her driveway holding a knife without being shot.”
The appeals court said whether or not the actions of UAPD Cpl. Andrew Kisela were reasonable should be disputed to a jury due to the severity of the occurrences, the police warning and possibility for less intrusive means. It stated that this should not have been decided by the lower district court.
The appeals court also said Kisela was not entitled to qualified immunity in this case.
On May 21, 2010, Kisela, UAPD officer-in-training Alex Garcia and UAPD Officer Lindsay Kunz responded to a welfare check call they heard while monitoring the Tucson Police Department radio about a woman hacking a tree with a large knife.
Soon after arriving at the location, Amy Hughes reportedly exited her house carrying a large kitchen knife at her side with the blade pointing backward. Sharon Chadwick, a woman who lives with Hughes, said Hughes seemed composed and content and did not feel she was a threat.
As Hughes walked closer to Chadwick, the officers drew their guns and ordered Hughes to drop the knife. Kisela said the officers yelled the command to drop the knife numerous times, but Chadwick said she only heard two commands in quick succession.
After Hughes had still not dropped the knife, Kisela said Hughes raised the knife as if to attack. Officers Garcia and Kunz told investigators later they did not see Hughes raise the knife. Kisela, separated from the women by a chain-link fence around the property, fired four non-fatal shots at Hughes.
Chadwick also told police after the incident Hughes had been diagnosed with bipolar disorder and was taking medication. Chadwick told police she didn’t think Hughes understood what was happening when she was told to drop the knife, and she said she believes Hughes would have given them the knife if police had asked and given her the opportunity to do so.
Chris Sigurdson, UA vice president of communications, said he could not comment on a legal proceeding still
in process.
“This is a victory for both civil rights and common sense,” said Vince Rabago, Hughes’ lawyer. “We applaud the court’s ruling and look forward to presenting the case to a jury in order to obtain justice for Ms. Hughes.”
When the government decides what amount of force should be used, the court opinion states three factors are taken into consideration: the severity of the crime at issue, if the suspect poses an immediate threat to others or the officers, and if the person is actively resisting arrest.
While the court found Kisela was undoubtedly concerned for Chadwick’s safety, they did not support his perception of Hughes as an immediate threat.
The court also found “the question of the severity of the crime being committed also weighs in Ms. Hughes’ favor” because the officers were responding to a “check welfare” call and no crime was reported.
In regards to whether or not Hughes was actively resisting arrest, the court said because the events of the incident unfolded in less than one minute, “the events in this case occurred too quickly for the officers to make an arrest attempt.”
Rabago said Hughes still suffers “significant pain” as well as “physical and emotional trauma from the shooting.”
“In fact about two years ago, maybe three, even one of the bullet fragments actually kind of worked its way out of her body and came out of her back,” Rabago said. “It’s really impacted her life.”
